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EPIC Alert 8.24 [2001] EPICAlert 24 (18 December 2001)








EPIC ALERT




Volume 8.24 December 18, 2001

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

http://www.epic.org/alert/EPIC_Alert_8.24.html


Table of Contents



[1] Intelligence Funding Bill Contains Wiretap Provisions
[2] FOIA Suit Challenges Secrecy of Post-9/11 Detentions
[3] Congress Urged to Examine Microsoft Passport
[4] Computer Experts Question National ID Schemes
[5] TRAC Terrorism Enforcement Report Released
[6] EPIC Bill-Track: New Bills in Congress
[7] EPIC Bookstore - The Security of Freedom
[8] Upcoming Conferences and Events


[1] Intelligence Funding Bill Contains Wiretap Provisions


Just weeks after passage of comprehensive anti-terrorism legislation,
Congress continues to tinker with the laws governing electronicmonitoring. An appropriations bill awaiting the President's signatureprovides for increased governmental surveillance capabilities underthe Foreign Intelligence Surveillance Act (FISA), increasing theauthorities recently broadened by the USA PATRIOT Act passed inOctober (see EPIC Alert 8.21).

H.R. 2883 expands "roving wiretap" authority by amending the locationprovision in FISA, which currently requires agents to identify thelocation of the instrument to be monitored. The amendment requiresidentification of location only "if known." Roving wiretap authorityunder FISA was established by the USA PATRIOT Act to allow theForeign Intelligence Surveillance Court (FISC) to issue generic ordersto any communications provider, thereby permitting the government totrack the communications of a specific individual carried over avariety of sources. The new amendment permits the FISC to issueorders permitting government surveillance of communications whereneither the provider nor the location of the communication device isspecified.

Under current law, the Attorney General may authorize electronicsurveillance or a search without a court order in an emergency. Insuch instances, the government must present a formal application tothe FISC within 24 hours of the Attorney General's authorization. Thenew legislation extends the time in which the government must presenta formal order to 72 hours. It also contains various technicalamendments to the USA PATRIOT Act.

The bill, which was the result of a House-Senate conference, specifiesfour priority areas in the nation's intelligence capabilities: (1)
revitalizing the National Security Agency; (2) correcting deficienciesin human intelligence; (3) addressing the imbalance betweenintelligence collection and analysis; and (4) rebuilding a robustresearch and development program.

H.R. 2883, the Intelligence Authorization Act for Fiscal Year 2002, isavailable at:

http://www.epic.org/privacy/wiretap/hr2883.html

EPIC's Wiretap Page:

http://www.epic.org/privacy/wiretap/



[2] FOIA Suit Challenges Secrecy of Post-9/11 Detentions


A coalition of civil liberties, civil rights and human rightsorganizations filed suit against the Justice Department on December 5,
seeking the disclosure of basic information about more than 1000individuals arrested and detained since September 11. The governmenthas continually refused to disclose the data in response to Freedom ofInformation Act (FOIA) requests, resulting in unprecedented secrecysurrounding the status of the individuals. EPIC is participating inthe case as both co-plaintiff and co-counsel.

Members of Congress, the news media and civil liberties groups haveall raised questions as to whether those jailed since September 11 arebeing accorded applicable constitutional protections. The FOIAlawsuit asserts that the requested information involves a matter ofextraordinary public interest and that the secrecy surrounding thedetentions is at odds with longstanding principles of open judicialproceedings.

On October 29, the plaintiff organizations requested disclosure ofdetainee information under the FOIA from the Justice Department andtwo of its components -- the Federal Bureau of Investigation and theImmigration and Naturalization Service. They specifically requestedthe release of, among other things, the identity of the detainees,
where they are being held, the names of their lawyers, which courtsare involved, how long the detainees have been held and the nature ofany charges filed against them. In late November, the JusticeDepartment released partial and fragmentary information about thedetainees but, for the most part, fell far short of satisfying theFOIA request.

Under a court-approved schedule to expeditiously litigate the case,
the government will be filing its brief on January 11.

The text of the lawsuit is available (in PDF) at:

http://www.epic.org/open_gov/FOIA/detainee_complaint.pdf



[3] Congress Urged to Examine Microsoft Passport


On December 11, EPIC sent a letter to members of the Senate JudiciaryCommittee urging them to question witnesses at a recent hearing on theMicrosoft antitrust settlement about the role that the settlement canplay in addressing the security and privacy risks of Passport. EPICwarned committee members that Passport "could literally become thetollbooth that controls Internet access for millions of consumers inthe United States."

EPIC suggested three issues that could be further explored in order toprotect consumers from Microsoft Passport. First, Congress shouldconsider how Microsoft could be prevented from using its marketdominance to acquire more Passport users. Second, the settlementshould be tailored to prevent Microsoft from conditioning access tothe Internet on Passport subscription. Finally, the settlement shouldprevent Microsoft from using its market dominance to profileindividuals and to share their personal information.

Currently, Microsoft claims to have 200 million users with Passportaccounts, and that number increases every time Microsoft ties a newservice to Passport. Most recently, users of the Zone.com gamingservice were required to sign up for Microsoft Passport beforeaccessing services.

During the hearing, Chairman Patrick Leahy (D-VT) and Senator OrrinHatch (R-UT) issued statements criticizing the settlement as vague andunenforceable. A procedural rule was invoked during the hearing thatforced Chairman Leahy to end the proceeding early. To date, thehearing has not been rescheduled. However, the record of the partialhearing was forwarded to the judge overseeing the settlement matter.

EPIC Letter to Members of the Senate Judiciary Committee:

http://www.epic.org/privacy/consumer/microsoft/senjud12.11.01.html

EPIC's Sign Out of Passport Page:

http://www.epic.org/privacy/consumer/microsoft/



[4] Computer Experts Question National ID Schemes


Computer Professionals for Social Responsibility (CPSR), aninternational association of computer experts, has released aFrequently Asked Questions (FAQ) document explaining and critiquingrecent proposals to create national identification schemes (NIDS) inthe United States, Canada, and other countries.

CPSR says that a national ID scheme "could combine the functions of adriver's license, social security registration, immigration documents,
and other government- issued identification." Individuals would beentered in a nationwide database and issued a "smart card" containingpersonal information. In some proposals, this smart card wouldinclude fingerprints, retina scans, and/or other biometric data.

"CPSR doubts that national identification schemes can provideadditional security against terrorist attacks," said CPSR presidentCoralee Whitcomb. She added:

These ideas have been around for a while, but after September 11 their proponents, including potential suppliers, who stand to profit handsomely from massive ID Card programs, used the climate of fear to dust them off in response to the public's desire for improved security. National identification schemes instead would endanger civil liberties, allowing those with access to the data base to track the behavior, associations, and finances of innocent people.

Further, Whitcomb stated that a new ID system could "leave us relyingon the wrong approach to security, and create a false sense ofsecurity that leaves us more vulnerable than before."

CPSR links to resources on National ID and related information(including the National ID FAQ) can be found at:

http://www.cpsr.org/program/natlID/natlIDlinks.html

EPIC's National ID Page:

http://www.epic.org/privacy/id_cards/

EPIC's Biometrics Page:

http://www.epic.org/privacy/biometrics/



[5] TRAC Terrorism Enforcement Report Released


The Transactional Records Access Clearinghouse (TRAC), a researchorganization supported by the Knight Foundation, the RockefellerFamily Fund, the Open Society Institute and others released aTerrorism Enforcement Report on December 3.

Using extensive internal Justice Department data that TRAC recentlyreceived under court order, the report shows that only a tiny fractionof FBI terrorism investigations in the last five years resulted in theBureau actually requesting a prosecution. Further, the report showedthat the number of investigations was inflated by the inclusion ofnon-terrorist crimes, and that this practice continued even after theevents of September 11.

As reported in the Philadelphia Inquirer, some of the cases labeled asterrorism involve convicts rioting to get better prison food, erraticbehavior by people with mental illnesses, and passengers getting drunkon airplanes. An Assistant U.S. Attorney in San Francisco asked theDistrict Judge to stiffen a sentence against an Arizona man who gotdrunk on a United Airlines flight, repeatedly rang the call button,
demanded more alcohol, and touched a flight attendant. JusticeDepartment records say the case falls under "domestic terrorism." Thejudge said that this was not terrorism; it was simply a man "being anannoyance beyond belief."

The most recent Justice Department annual report says that FBIinvestigations led to 236 terrorism convictions in fiscal year 2000.
That number is generated from an FBI computer system that followscriminal cases from beginning to end. The government would notrelease details of the 236 cases identified as terrorism in theJustice Department's annual report; however, Knight Ridder journalistssubmitted requests under the Freedom of Information Act (FOIA) to findout more about the cases, and deduced that only a handful of the casesactually involved terrorist acts, such as the 1996 bombing of KhobarTowers in Saudi Arabia.

Justice Department officials, both former and current, say that thenumbers in the reports are used to justify the department's $22billion annual budget.

Details can be found in "U.S. Overstates Arrests in Terrorism," byMark Fazlollah and Peter Nicholas, Philadelphia Inquirer, December 16,
2001:

http://inq.philly.com/content/inquirer/2001/12/16/front_page/terror16.htm

Transactional Records Access Clearinghouse (TRAC) -- click on What'sNew (Terror Report):

http://www.trac.syr.edu



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


*House*

H.R.3387 Fair Credit Reporting Act Limitations on Actions Act of 2001.
To amend the Fair Credit Reporting Act to extend the limitation onactions, and for other purposes. Sponsor: Rep Terry, Lee (R-NE).
Latest Major Action: 11/30/2001 Referred to House committee: HouseFinancial Services; House Judiciary.

*Senate*

S.1749 Enhanced Border Security and Visa Entry Reform Act of 2001. Abill to enhance the border security of the United States, and forother purposes. Sponsor: Sen Kennedy, Edward M. (D-MA) Latest MajorAction: 11/30/2001 Referred to Senate committee: Senate Judiciary.

S.1788 Use NICS in Terrorist Investigations Act. A bill to give theFederal Bureau of Investigation access to NICS records in lawenforcement investigations, and for other purposes. Sponsor: SenSchumer, Charles E. (D-NY) Latest Major Action: 12/7/2001 Referred toSenate committee: Senate Judiciary.

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

http://www.epic.org/privacy/bill_track.html



[7] EPIC Bookstore - The Security of Freedom


The Security of Freedom: Essays on Canada's Anti-Terrorism Bill,
ed., Ronald J. Daniels (University of Toronto 2001)

http://www.utppublishing.com/detail.asp?TitleID=2493

Law schools move slowly in matters of national policy. Theirparticipation in public debate is oftentimes after the fact, once thelaw is passed, once the case is decided. Too few academic conferencesengage political leaders and political institutions. Too many assumethat to present positions pro and con is to promote a meaningfulpublic dialogue.

All this is worth keeping in mind when reading this extraordinarycollection of essays prepared by the Faculty of Law at the Universityof Toronto. "The Security of Freedom: Essays on Canada'sAnti-Terrorism Bill" is based on a conference organized at theUniversity of Toronto in early in November, just as the Canadiangovernment began to consider legislative responses to the tragicevents of September 11. That conference brought together legalexperts, government officials, and community leaders to evaluate thespecific provisions contained in C-36, Canada's proposedAnti-terrorism Bill which is still pending before the Parliament.

Although most of the papers lean toward criticism of the expandedpolice powers, the tone is restrained, the analysis proceeds inmeasured steps. Several authors note that the proposal of theMinister of Justice Anne McLellan would probably pass court reviewunder the Canadian Charter of Rights and Freedoms, "Charter-proofing"
as several of the commentators say. But this does answer the mostfundamental questions. As the editor and dean of the Faculty of LawRonald Daniels observes, "the impact of expanded governmental powerson individuals rights and liberties" transcends the question ofwhether the measure passes judicial scrutiny. "The question posed,"
writes Daniels, is "a more fundamental one of whether the enhancedpowers being sought for the state are congruent with our democratictraditions and values, and consistent with bedrock ideas of the ruleof law."

A key problem, for example, with Canada's Anti-terrorism bill issimply the definition of "terrorist activity." The term in theoriginal draft could include all forms of public protest that are not"lawful," i.e. approved by government. At a time when there is realdebate about environment policy, the impact of globalization, and therights of native people, the risk that an anti-terror measure couldsweep up public protest is very real.

Several of the authors point to the impact that the proposed measurewould have on judicial oversight, legislative review of actions by theexecutive, and public access to information about the conduct ofgovernment. These proposals also threaten to change the character ofdemocratic institutions. Other essays touch upon criminal justice,
privacy, and profiling in a multi-cultural society. Concludingremarks from government officials note both the real challenges ofpublic safety and the real concern about preserving the freedoms inthe Charter.

At the time of this review, it is clear that the work of theUniversity of Toronto, as well as public officials, the Canadian BarAssociation, and NGO advocates has changed the debate in Canada.
Changes to the definition of terrorism have been adopted, as well asnew means of oversight. Still, concerns remain about limitations onthe right to counsel, and the "preventive arrest" and "investigativehearings" provisions in the bill.

We come to the end of a difficult year. The challenges of September11 remain within us. But "Security of Freedom" provides the bestpublication to date on the role of law and the importance ofindividual rights after September 11. This collection helps us betterunderstand the political and legal dimensions of security and freedom,
and wisely suggests that the answer is not in the proverbial balanceof these two goals but in the recognition that without freedom therecan be no real security.

- Marc Rotenberg
Security of Freedom Conference web site:

http://www.law.utoronto.ca/c-36/index.htm



EPIC Publications:

"Privacy & Human Rights 2001: An International Survey of Privacy Lawsand Developments," (EPIC 2001). Price: $20.
http://www.epic.org/bookstore/phr2001/

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. http://www.epic.org/bookstore/pls2001/

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.
http://www.epic.org/bookstore/filters2.0/

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.
http://www.epic.org/cls/

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. http://www.epic.org/crypto&/

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 http://www.epic.org/bookstore/

"EPIC Bookshelf" at Powell's Books http://www.powells.com/features/epic/epic.html



[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:
infopandab.org

** 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: infopandab.org

Future of Music Coalition Policy Summit. January 7-8, 2002.
Washington, DC. For more information:
http://www.futureofmusic.org/events/summit0102/

Chief Privacy Officer Skills Development Workshop. PRIVA-C and SelectKnowledge. January 14-16, 2002 and February 18-20, 2002. Dallas, TX.
For more information: http://www.priva-c.com/cpoworkshop/

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

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

CFP 2002: The Twelfth Conference on Computers, Freedom & Privacy.
April 16-19, 2002. San Francisco, CA. For more information:
http://www.cfp2002.org/


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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,
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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.

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END EPIC Alert 8.24

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