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EPIC Alert 8.23 [2001] EPICAlert 23


Volume 8.23 December 3, 2001

Published by the Electronic Privacy Information Center (EPIC)
Washington, D.C.

Table of Contents

[1] Supreme Court Hears Arguments on Internet Censorship
[2] Amicus Brief Filed in Defense of Anonymous Speech
[3] Cybercrime Treaty Signed and Other International Developments
[4] Privacy Legislation Passes Congress
[5] Second Briefing Held in "Security or Surveillance?" Series
[6] EPIC Bill-Track: New Bills in Congress
[7] EPIC Bookstore - Filters & Freedom 2.0
[8] Upcoming Conferences and Events

[1] Supreme Court Hears Arguments on Internet Censorship

The U.S. Supreme Court on November 28 heard oral argument on theconstitutionality of the Child Online Protection Act (COPA). AmericanCivil Liberties Union attorney Ann Beeson, representing a coalition ofonline companies and organizations, including EPIC, urged the Justicesto affirm the June 2000 decision of the U.S. Court of Appeals for theThird Circuit, which upheld a lower court injunction against COPA. Inthat opinion, a unanimous three-judge panel expressed its belief thatthe 1998 censorship law is fatally flawed. U.S. Solicitor GeneralTheodore Olson argued for reversal of the appellate decision.

The legislation was introduced in Congress after an earlier effort toregulate children's access to "indecent" material, the CommunicationsDecency Act (CDA), was held unconstitutional by a unanimous U.S.
Supreme Court in 1997. To date, every federal judge to consider thelegality of either CDA or COPA has found that the Internet contentregulation laws violate the First Amendment.

COPA would make it a federal crime to "knowingly" communicate "forcommercial purposes" material considered "harmful to minors" to anyoneunder the age of 17. Penalties include fines of up to $50,000 foreach day of violation and up to six months in prison. Compliance withCOPA would require websites to obtain identification and ageverification from visitors, a feature of the law that EPIC has arguedthreatens online privacy and anonymity.

The Supreme Court is expected to issue a ruling by next June.

Complete information on the COPA litigation, including the text of thebriefs filed with the Supreme Court, is available at:

[2] Amicus Brief Filed in Defense of Anonymous Speech

On November 29, EPIC, the ACLU, and 14 legal scholars filed an amicuscuriae brief with the Supreme Court in Watchtower Bible v. Stratton,
Ohio, a case which implicates privacy rights, as well as the FirstAmendment rights of anonymity, expression, and freedom of association.

The case concerns a Stratton city ordinance that requires those goingdoor-to-door to obtain a permit and to identify themselves prior toand during petitioning. The lower court found that neitherrequirement violated the First Amendment freedom of expression orright to anonymity.

Anonymity is a core First Amendment value that enables the expressionof political ideas, participation in the political process, membershipin political associations, and the practice of religious beliefwithout fear of government intimidation or public retaliation. Thebrief argues that the Stratton ordinance, in forcing people tosacrifice their anonymity, chills activity protected by the FirstAmendment.

The Supreme Court has long held anonymous speech to be "an honorabletradition of advocacy and of dissent." In Talley v. California, thefountainhead case for anonymity protection, the Court struck down aCalifornia law prohibiting anonymous leafletting on the grounds thatit "might deter perfectly peaceful discussions of public matters ofimportance." The Court has twice recently reaffirmed the nexusbetween the freedoms of speech and association and the right ofanonymity by striking down statutes in Colorado and Illinois thatrequired speakers to sacrifice their anonymity.

The Court will hear arguments in the case next year.

The EPIC/ACLU amicus brief (in PDF) is available at:

Watchtower Bible v. City of Stratton, [2001] USCA6 45; 240 F.3d 553 (6th Cir. 2001),
cert. granted, 2001 U.S. LEXIS 9772:

[3] Cybercrime Treaty Signed and Other International Developments

On November 23, thirty nations, including most European countries,
Canada, Japan, South Africa and the U.S., signed the Council ofEurope's Convention on Cybercrime at an official ceremony in Budapest,

The Convention, which has been under negotiation since 1997, is thefirst international treaty to address crimes committed in"cyberspace," including breach of copyright, computer-related fraud,
child pornography and hacking. An optional protocol also criminalizespublication of or linking to racist and xenophobic material oncomputer networks. The convention harmonizes penalties for thesecrimes and requires signatory countries to provide each other withmutual legal assistance in investigations. It authorizes a wide rangeof investigative powers, such as electronic surveillance and access touser records maintained by communications providers. The Conventiondoes not require "dual criminality," meaning that individuals can beinvestigated by their national authorities for activities that are noteven crimes in their home countries.

The Convention has been consistently criticized by civil liberties,
privacy and security organizations as disproportionately weighted infavor of law enforcement interests. The Convention will enter intoforce as soon as five countries, including three of the member states,
have ratified it. In the U.S., ratification of the treaty willrequire approval by the Senate.

Related measures to combat cybercrime are also being considered at theEU level. On November 27, the European Commission held a specialforum on cybercrime to discuss future EU policy making in this area.
The main focus of the meeting was the retention of electronic trafficdata for law enforcement purposes, an issue that was recentlycondemned by an international coalition of consumer and privacyorganizations as in violation of the fundamental rights to privacy anddata protection, freedom of expression, and presumption of innocence.
(See EPIC Alert 8.22, "International Coalition Urges EU to SafeguardPrivacy.")

Information about the Cybercrime treaty (including links to full text,
summary, and explanatory report) is available at:

[4] Privacy Legislation Passes Congress

Newly enacted legislation will prohibit federal government agenciesfrom snooping into individuals' web browsing habits. The new privacyprotections, passed in H.R. 2590, an appropriations bill, apply to allfederal agencies. Section 639 of the bill prohibits agencies fromcollecting personally-identifiable information "relating to anindividual's access to or use of" any federal agency Internet sites.
The legislation also prohibits the purchase of personally-identifiableinformation on visits to non-governmental websites.

There are notable exceptions to the prohibitions on collectinginformation. Agencies will be able to collect personally-identifiableinformation on individuals who voluntarily submit data to governmentweb sites. Additionally, there are law enforcement and securityexemptions that allow collection of personally-identifiableinformation.

H.R. 2590 -- Making appropriations for the Treasury Department, theUnited States Postal Service, the Executive Office of the President,
and certain Independent Agencies, for the fiscal year ending September30, 2002, and for other purposes (see section 639):

[5] Second Briefing Held in "Security or Surveillance?" Series

On Friday, November 30, EPIC hosted the second policy briefingin the ongoing "Security or Surveillance?" event series at theNational Press Club in Washington, D.C. Speakers included SimonDavies, Director of Privacy International; Bruce Schneier, CTO andco-founder of Counterpane Internet Security; and Chris Hoofnagle,
Legislative Counsel of EPIC.

Issues discussed included the technical reliability and privacyimplications of new security systems and legal measures beingconsidered both domestically and internationally since September 11.
Simon Davies spoke extensively on international developments inanti-terrorism and surveillance provisions, especially in the UnitedKingdom. Bruce Schneier illustrated many unforeseen ways that anational ID card system might fail. He also examined computersecurity scenarios that involve "real" terrorism, comparing them withrelatively trivial security problems such as the "ILOVEYOU" virus anddenouncing the use of the word "cyberterrorism" to describe minorsecurity breaches. Chris Hoofnagle explained that a national ID cardis likely to become subject to "function creep," where narrowlytargeted regulation expands to other unintended areas. While ID cardshave initially been suggested for non-U.S. citizens entering thecountry, their use could be extended to other groups, such asconvicts, welfare recipients, and children. Davies added that anational ID card for noncitizens would likely cause citizens to alsocarry such a card, in order to prove that they were indeed citizens.

More panels in this series will be scheduled in the near future.
Visit for a current list of upcoming andpast events hosted by EPIC.

Audiocast of briefing (in RealAudio format):

For more information about the briefing, see:

EPIC's National ID Page:

[6] EPIC Bill-Track: New Bills in Congress


H.R.3266 To amend title 18, United States Code, to prohibitunauthorized trafficking in personal DNA information, and for otherpurposes. Sponsor: Rep Rivers, Lynn N.(D-MI). Latest Major Action:
11/8/2001 Referred to House committee: House Judiciary.

H.R.3285 Federal-Local Information Sharing Partnership Act of 2001. Toprovide for the sharing of certain foreign intelligence informationwith local law enforcement personnel, and for other purposes. Sponsor:
Rep Weiner, Anthony D. (D-NJ). Latest Major Action: 11/13/2001Referred to House committees: House Judiciary; House Select Committeeon Intelligence; House Financial Services; House Education and theWorkforce.

H.R.3367 To amend title 10, United States Code, to require certaincontractors with the Department of Defense to perform backgroundinvestigations, psychological assessments, and behavioralobservations, and provide fingerprint cards, with respect toindividuals who perform work on military installations or facilities.
Sponsor: Rep Saxton, Jim (R-NJ). Latest Major Action: 11/28/2001Referred to House committee: House Armed Services.

H.R.3368 To amend the Fair Credit Reporting Act with respect tostatute of limitations on actions. Sponsor: Rep Schakowsky, Janice D.
(D-IL). Latest Major Action: 11/28/2001 Referred to House committee:
House Financial Services; House Judiciary.

H.R.3369 To amend the Fair Credit Reporting Act to provide that thestatute of limitations begins to run when a violation is firstdiscovered by a consumer. Sponsor: Rep Shadegg, John B. (R-AZ). LatestMajor Action: 11/28/2001 Referred to House committee: House FinancialServices; House Judiciary.

H.R.3371 To amend the Federal Advisory Committee Act to establishpublic disclosure requirements for working groups of advisorycommittees. Sponsor: Rep Waxman, Henry A. (D-CA). Latest Major Action:
11/28/2001 Referred to House Committees: House Government Reform.


S.1684 A bill to provide a 1-year extension of the date for complianceby certain covered entities with the administrative simplificationstandards for electronic transactions and code sets issued inaccordance with the Health Insurance Portability and AccountabilityAct of 1996. Sponsor: Sen Dorgan, Byron L.(D-ND). Latest Major Action:
11/14/2001 Referred to Senate committee: Senate Finance.

S.1723 Protect Victims of Identity Theft Act of 2001. A bill to amendthe Fair Credit Reporting Act with respect to the statute oflimitations on actions. Sponsor: Sen Leahy, Patrick J. (D-VT). LatestMajor Action: 11/16/2001 Referred to Senate committee: Senate Banking,
Housing, and Urban Affairs.

S.1733 Name Matching for Enforcement and Security Act of 2001. A billto develop and implement a unified electronic data system to enhanceaccess to information that is relevant to determine whether to issue avisa or admit an alien to the United States, and for other purposes.
Sponsor: Sen Edwards, John (D-NC). Latest Major Action: 11/27/2001Referred to Senate committee: Senate Judiciary.

S.1742 A bill to prevent the crime of identity theft, mitigate theharm to individuals victimized by identity theft, and for otherpurposes.Sponsor: Sen Cantwell, Maria (D-WA). Latest Major Action:
11/29/2001 Referred to Senate committee: Senate Judiciary.

EPIC Bill Track: Tracking Privacy, Speech, and Cyber-Liberties Billsin the 107th Congress, is available at:

[7] EPIC Bookstore - Filters & Freedom 2.0

Filters & Freedom 2.0: Free Speech Perspectives on Internet ContentControls, edited by David L. Sobel (2001)

Originally proposed as a technological solution that would forestallofficial censorship, content filtering has been shown to pose its ownsignificant threats to free expression on the Internet. Oftencharacterized by their proponents as mere features or tools, filteringand rating systems can also be viewed as fundamental architecturalchanges that may, in fact, facilitate the suppression of speech farmore effectively than national laws alone ever could.

This revised edition addresses recent developments, including newcontent control legislation in the United States, efforts within theEuropean Union to establish a uniform rating regime for onlinematerial, and the growing controversy over the use of filtering inpublic libraries. Partly as a result of the writings contained inthis collection, the headlong rush toward the development andacceptance of filtering and rating systems has slowed. These criticalviews must be considered carefully if we are to preserve freedom ofexpression in the online world.

EPIC Publications:

"Privacy & Human Rights 2001: An International Survey of Privacy Lawsand Developments," (EPIC 2001). Price: $20.

This survey, by EPIC and Privacy International, reviews the state ofprivacy in over fifty countries around the world. The survey examinesa wide range of privacy issues including, data protection, telephonetapping, genetic databases, ID systems and freedom of informationlaws.

"The Privacy Law Sourcebook 2001: United States Law, InternationalLaw, and Recent Developments," Marc Rotenberg, editor (EPIC 2001).
Price: $40.

The "Physicians Desk Reference of the privacy world." An invaluableresource for students, attorneys, researchers and journalists who needan up-to-date collection of U.S. and International privacy law, aswell as a comprehensive listing of privacy resources.

"Filters and Freedom 2.0: Free Speech Perspectives on Internet ContentControls" (EPIC 2001). Price: $20.

A collection of essays, studies, and critiques of Internet contentfiltering. These papers are instrumental in explaining why filteringthreatens free expression.

"The Consumer Law Sourcebook 2000: Electronic Commerce and the GlobalEconomy," Sarah Andrews, editor (EPIC 2000). Price: $40.

The Consumer Law Sourcebook provides a basic set of materials forconsumers, policy makers, practitioners and researchers who areinterested in the emerging field of electronic commerce. The focus ison framework legislation that articulates basic rights for consumersand the basic responsibilities for businesses in the online economy.

"Cryptography and Liberty 2000: An International Survey of EncryptionPolicy," Wayne Madsen and David Banisar, authors (EPIC 2000).
Price: $20.

EPIC's third survey of encryption policies around the world. Theresults indicate that the efforts to reduce export controls on strongencryption products have largely succeeded, although severalgovernments are gaining new powers to combat the perceived threats ofencryption to law enforcement.

EPIC publications and other books on privacy, open government, freeexpression, crypto and governance can be ordered at:

EPIC Bookstore

"EPIC Bookshelf" at Powell's Books

[8] Upcoming Conferences and Events

** POSTPONED! ** First Privacy Expo 2001. Privacy & American Businessand Privacy Council. Was November 27-29, 2001; will be rescheduled forFebruary or March 2002. Washington, DC. For more information:

** POSTPONED! ** Eighth Annual National "Managing the NEW PrivacyRevolution" Conference. Privacy & American Business and PrivacyCouncil. Was November 28-29, 2001; will be rescheduled for February orMarch 2002. Washington, DC. For more information:

Privacy By Design 2001: Building Privacy for Better Business.
ZeroKnowledge. December 3-5, 2001. Montreal, Canada. For moreinformation:

Get Noticed: Effective Financial Privacy Notices. Federal TradeCommission. December 4, 2001. Washington, DC. For more information:

Call for Papers - December 10, 2001. Workshop on Privacy EnhancingTechnologies 2002. April 14-15, 2002. San Francisco, CA. For moreinformation:

17th Annual Computer Security Applications Conference (ACSAC). AppliedComputer Security Associates. December 10-14, 2001. New Orleans, LA.
For more information:

Call for Content - December 15, 2001. INET 2002 - Internet Crossroads:
Where Technology and Policy Intersect. The Internet Society. June18-21, 2002. Arlington, VA. For more information:

Future of Music Coalition Policy Summit. January 7-8, 2002.
Washington, DC. For more information:

Chief Privacy Officer Skills Development Workshop. PRIVA-C and SelectKnowledge. January 14-16, 2002 and February 18-20, 2002. Dallas, TX.
For more information:

Debating Privacy and ICT: Before and After September 11th. RathenauInstituut. January 17, 2002. Amsterdam, The Netherlands. For moreinformation:

International Symposium on Freedom of Information and Privacy. Officeof the New Zealand Privacy Commissioner. March 28, 2002. Auckland, NewZealand. For more information:

CFP 2002: The Twelfth Conference on Computers, Freedom & Privacy.
April 16-19, 2002. San Francisco, CA. For more information:

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About EPIC

The Electronic Privacy Information Center is a public interestresearch center in Washington, DC. It was established in 1994 tofocus public attention on emerging privacy issues such as the ClipperChip, the Digital Telephony proposal, national ID cards, medicalrecord privacy, and the collection and sale of personal information.
EPIC publishes the EPIC Alert, pursues Freedom of Information Actlitigation, and conducts policy research. For more information,
e-mail, or write EPIC, 1718Connecticut Ave., NW, Suite 200, Washington, DC 20009.
+1 202 483 1140 (tel), +1 202 483 1248 (fax).

If you'd like to support the work of the Electronic PrivacyInformation Center, contributions are welcome and fullytax-deductible. Checks should be made out to "EPIC" and sent to1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009.
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and learn Latin at the same time! Receive a free "sed quiscustodiet ipsos custodes?" coffee mug with donation of $75 or more.

Your contributions will help support Freedom of Information Act andFirst Amendment litigation, strong and effective advocacy for theright of privacy and efforts to oppose government regulation ofencryption and expanding wiretapping powers.

Thank you for your support.

END EPIC Alert 8.23


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