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EPIC Alert 9.12 [2002] EPICAlert 12


Volume 9.12 June 20, 2002

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

Table of Contents

[1] Watchtower Bible: Supreme Court Upholds Anonymity, Free Speech
[2] ACTION: DC Council Considers Cameras - Your Views Needed
[3] EPIC, EFF Urge House To Consider Risks of DRM
[4] Certiorari Denied in TU v. FTC; Bus Searches Deemed Constitutional
[5] EPIC Participates in FTC Do-Not-Call Telemarketing Workshop
[6] North Dakota Votes 72 Percent in Favor of Opt-In
[7] EPIC Bookstore - Fast Forward
[8] Upcoming Conferences and Events

[1] Watchtower Bible: Supreme Court Upholds Anonymity, Free Speech

The Supreme Court ruled on June 17 that a Stratton, Ohio ordinance,
which requires those going door-to-door to obtain a permit and toidentify themselves prior to and during petitioning, violates theright of anonymity inherent in the First Amendment freedom of speech.
The Court determined 8-1 that free speech includes the right to take amessage or idea directly to someone's door, and that this right cannotbe limited by a requirement to pre-register by name. The Court stated:

[I]t is offensive, not only to the values protected by the First Amendment, but to the very notion of a free society,
that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.

The ordinance was passed in 1998 to regulate canvassing and solicitingof residents of the village of Stratton at their homes. In June 1999,
the Watchtower Bible and Tract Society of New York and individualJehovah's Witnesses sued in federal court, seeking a declaration thatthe ordinance violated the First Amendment. They argued it infringedon their free speech, free press, free association and free exerciseof religion rights. They also argued that the ordinance wasunconstitutional because it infringed on the right to engage inanonymous speech. Both the District Court and the Court of Appealsupheld the village requirement.

EPIC, the ACLU, and 14 legal scholars filed an amicus curiae briefwith the Court in November 2001, arguing that the ordinance infringesupon privacy rights, as well as the First Amendment rights ofanonymity, expression, and freedom of association. Anonymity is acore First Amendment value that enables the expression of politicalideas, participation in the political process, membership in politicalassociations, and the practice of religious belief without fear ofgovernment intimidation or public retaliation. The Strattonordinance, in forcing people to sacrifice their anonymity, chillsactivity protected by the First Amendment.

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 Supreme Court opinion is online at:

The EPIC/ACLU amicus brief is at:

EPIC's Watchtower Bible page has background information on the case:

[2] ACTION: DC Council Considers Cameras - Your Views Needed

As the public debate over video surveillance in Washington, DCcontinues, the City Council held a day long hearing on June 13.
EPIC Executive Director Marc Rotenberg spoke about the privacy andFirst Amendment implications of video surveillance technology, andbrought attention to helicopter surveillance logs obtained by EPICunder the Freedom of Information Act.

The documents obtained by EPIC indicate that the Park Police haveengaged in routine aerial surveillance of political protests inWashington for the last several years. In one case from January 22,
2002, images from a pro-life demonstration in front of the SupremeCourt were downlinked to the FBI. Camera logs also revealed aerialsurveillance of the Million Family March last year, and the recentanti-globalization, pro-Palestine demonstrations in April.

Rotenberg's testimony also explored the expectation of privacy in apublic space and the need for effective limitations on the use ofvideo surveillance technology. The EPIC statement reviewed theexperiences of London, England and Sydney, Australia, where evidenceof the effectiveness of the surveillance system is mixed and suggeststhat the benefits of the cameras have been significantly overstated.
The ACLU, the NAACP, and EPIC all called for an independent commissionto review the need for surveillance cameras and to draft legislationto regulate the cameras if they are needed.

DC City Councilmembers Kathy Patterson and Carol Schwartz have takenthe lead in raising questions about the benefits of the camera systemand calling for strong legal safeguards. Privacy advocates havesuccessfully slowed the Metropolitan Police Department (MPD)'s plan,
backed by Mayor Williams, to blanket the District with cameras. Theyhave also forced the MPD to draft more comprehensive guidelinesconcerning the use of video surveillance. But the proposed guidelinesare still not sufficient to protect the rights of residents andvisitors in the Nation's Capital.


The District of Columbia is accepting public comments on the videosurveillance regulations until June 27, 2002. You should act now toexpress your views on this matter. The key points your comments mighttouch on are:

- Appreciate efforts of DC City Council and particularly councilmembers Patterson and Schwartz to draw attention to the far-reaching privacy implications of video surveillance in Washington, DC.

- The Police should cease the unlawful covert camera surveillance of political organizations engaged in peaceful protest in Washington, DC.

- The case has not yet been made for the benefits of an elaborate camera system.

- We have a resonable expectation of privacy in public from covert surveillance cameras operated by law enforcement authorities.

- If the surveillance system goes forward, there needs to be clear and comprehensive legislation limiting the technology to safeguard the rights of residents and visitors to Washington, DC.

Send your comments via our link below, or send them directly to Ms.
Phyllis Jones, Secretary to the Council, Suite 5, John A. WilsonBuilding, 1350 Pennsylvania Avenue, N.W., Washington, DC 20004.

ACTION - DC Surveillance Comment page:

D.C. City Council Notice:

EPIC's testimony:

Draft Surveillance Regulations:

Park Police Helicopter Logs:

Observing Surveillance Postcard Exhibit:

EPIC's Video Surveillance Page:

[3] EPIC, EFF Urge House Subcommittee to Consider Risks of DRM

In response to a recent hearing on the consumer benefits of digitalrights management technologies (DRM), EPIC joined with the ElectronicFrontier Foundation (EFF) in urging Congress to consider the potentialharms DRM has on consumer and societal rights.

On June 5, the House Judiciary Subcommittee on the Courts, theInternet, and Intellectual Property held a hearing focusing on theconsumer benefits of digital rights management technologies, with awitness panel composed only of technology industry representatives,
namely: Microsoft, Adobe, Suncomm, and Centerspan.

To bring a consumer perspective to the debate, EPIC and EFFdistributed a letter to the Members and the media that drew attentionto some of the negative impacts of DRM. EPIC and EFF argued that DRMweakens consumers' privacy by allowing copyright owners to monitorprivate consumption of content and transactional data related to thatconsumption (e.g. in an attempt to secure content, many DRM systemsrequire the user to identify and authenticate a right of access to theprotected media); DRM weakens individuals' rights by eliminating theambiguity inherent in "fair use," which allows courts to mediatebetween law and new technologies; DRM restricts access to the publicdomain at the whim of copyright owners and creates obstacles to thefree flow of information, even for legitimate purposes; DRM encroacheson meaningful access to the public domain and ignores the limitednature of copyright in law; and that over time, DRM will change users'
expectations about control and the use of digital content.

Joint Letter on DRM:

EPIC's DRM Web Page:

[4] Certiorari Denied in TU v. FTC; Bus Searches Deemed Constitutional

The United States Supreme Court denied a petition to review TransUnion (TU) v. Federal Trade Commission (FTC), a First Amendmentchallenge to rules prohibiting the use of credit data for marketingpurposes. TU sold "tradelines," or information that notes acredit-relevant event, for marketing purposes. Tradelines includename, address, date of birth, telephone number, Social Securitynumber, account type, opening date of account, credit limit, accountstatus, and payment history.

The Court declines to hear the majority of appeals brought to it, anda denial is not a ruling on the case's merits. However, this case isimportant because TU is one of the most powerful corporations in thecredit reporting industry and is facing enough legal liability to sendthe company into bankruptcy. Additionally, the company retainedLaurence Tribe, a noted First Amendment scholar, to argue that itsdata marketing techniques were protected by the Constitution.

In a seperate case this week, the Supreme Court held that the FourthAmendment does not require police officers to advise bus passengers oftheir right not to cooperate and to refuse consent to searches. Inthe case, police officers engaged in random, suspicionless searches ofbus passengers by boarding the vehicle and asking individuals whetherthey would consent to a search. The Court held that a reasonablepassenger would not find the police officers' presence confrontationalor coercive.

At oral argument, the Department of Justice claimed that the bussearches in question, most commonly performed for drug interdiction,
are necessary to stem terrorism. Justices Souter, Stevens, andGinsburg dissented from the opinion, arguing that the searches are notjustified for ground transportation and that a reasonable passengerwould not feel free to decline the officers' request to search.

Trans Union v. FTC, No. 01-1080, 536 U.S. ___ (2002):

Trans Union v. FTC, No. 00-1141 (D.C. Cir. 2001):

EPIC Profiling Page:

United States v. Drayton, No. 01-631, 536 U.S. ___ (2002):

[5] EPIC Participates in FTC Do-Not-Call Telemarketing Workshop

Last week, EPIC and other consumer groups participated in a FederalTrade Commission (FTC) workshop devoted to implementing a do-not-call(DNC) list. The workshop examined issues associated with proposedchanges to the Telemarketing Sales Rule (TSR). Industry participantsdominated the make-up of the workshop. However, the FTC seemedcommitted to developing a national do-not-call (DNC) list in order toallow individuals to opt-out of some telemarketing.

EPIC's advocacy in the workshop mirrored the comments that weresubmitted in response to proposed changes to the TSR. EPIC supporteda national DNC list with phone, mail, and Internet enrollment. EPICalso supported changes to the TSR that would require the transmissionof Caller ID information with each sales call.

Industry advocates generally supported positions that would make itmore difficult to enroll on the DNC list, and once enrolled, wouldrequire individuals to be dropped from the list regularly. Someindustry advocates claimed that only the line subscriber -- not even aspouse or the roommate of the subscriber -- should have authority toenroll on the list. Others, including the Newspaper Association ofAmerica, argued individuals should have to reenroll every year.

EPIC Comments on the Telemarketing Sales Rule:

EPIC Telemarketing Page:

[6] North Dakota Votes 72 Percent in Favor of Opt-In

On June 11, residents of North Dakota rejected an opt-out standard forfinancial privacy, thereby establishing opt-in protections for theirpersonal information.

In 1999, Congress passed the Gramm-Leach-Bliley Act (GLBA) andestablished a default opt-out rule for information sharing amongbanks, insurance companies, and brokerage companies. Because of theGLBA, the North Dakota legislature decided to harmonize its opt-inprivacy law with the federal standard. In January 2001, thelegislature passed Senate Bill 2191, which established opt-outprotections for information sharing with nonaffiliated third parties.
2191 was deemed an "emergency measure" and took effect in July 2001.

Members of the State's Constitution Party strongly objected to this,
and collected the 15,000 signatures necessary to get the issue placedon the ballot for statewide review. A group called "Protect OurPrivacy" formed, and with the help of the American Civil LibertiesUnion (ACLU), they raised about $27,000 to campaign for opt-insupport. An opposition group, driven mainly by bankers and financialinterests, raised well over $100,000 to oppose opt-in. Much of thatmoney was spent on misleading ads, including one that claimed ATMswould no longer work in the State if opt-in was adopted. This causedsuch controversy that the State Attorney General issued an opinionspecifically rebutting the banks' claims.

North Dakota's action is likely to spark voter initiatives for opt-inin other states. Advocates in North Dakota also plan to expand opt-innext year by applying the standard to the insurance industry.

More information on the GLBA and how to support opt-in legislation:

Protect Our Privacy:

[7] EPIC Bookstore - Fast Forward

Fast Forward: Hollywood, the Japanese, and the VCR Wars, by JamesLardner.

In light of the ongoing battle in Paramount v. ReplayTV and SONICblue,
in which the TV studios have sued the manufacturer of a Personal VideoRecorder for copyright infringement, it is an apt time to wander downmemory lane with Fast Forward: Hollywood, the Japanese, and the VCRWars, by James Lardner. This book, published in 1987, is afascinating story about the rise of the VCR, and the infamous legalfight that resulted in the U.S. Supreme Court decision in Universal v.

The author is an accomplished journalist who brings this drama to lifein ways that a dry legal opinion could never do. The book begins in1956 when a team of American engineers succeeded in recording a TVpicture on a reel of magnetic tape. For the next two decades, alitany of companies raced to develop a home videotape machine.
Ultimately, the VCR became the most successful electronic appliancesince color television, and shook the foundations of Americanelectronic companies and Hollywood content-producers to the core.
After Universal sued Sony in 1976, the VCR battle became legendary,
enlisting a star-studded cast (including the still-dominant force ofJack Valenti) and resounding through Congressional committees andlobbyists' offices galore, as well as the swank palaces of major mediaconglomerates.

Despite the Supreme Court's decision that home video recording doesnot infringe Hollywood's copyright in TV programs, the book makes itevident that the copyright owners (called the Copyrightists byLardner) are resolute in their sense of entitlement. This sense ofentitlement is at odds with the huge revenue that the studios haveearned from the VCR's popularity. The TV studios do not seem to havelearned a lesson, richly told in this book, about fair use, and seemfated to repeat it in the current Personal Video Recorder case.

- Megan E. Gray

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

** The Public Voice in Internet Policy Making. June 22, 2002.
Washington, DC. The Electronic Privacy Information Center (EPIC) willhost a one-day public symposium to discuss the future of our rightsand freedoms in the information age. The event is being hosted inconjunction with INET 2002 and is free and open to the public. Formore information: **

INET 2002. Internet Crossroads: Where Technology and Policy Intersect.
Internet Society. June 18-21, 2002. Washington, DC. For moreinformation:

Third Annual Institute on Privacy Law. Practising Law Institute. June24-25, New York, NY. For more information:

IViR International Copyright Law Summer Course. Royal NetherlandsAcademy of Arts and Sciences. July 8-12, 2002. Amsterdam, Netherlands.
For more information:

O'Reilly Open Source Convention. O'Reilly and Associates. July 22-26,
2002. San Diego, CA. For more information:

Cyberwar, Netwar and the Revolution in Military Affairs: Real Threatsand Virtual Myths. International School on Disarmament and Research onConflicts (ISODARCO). August 3-13, 2002. Trento, Italy. For moreinformation:

ILPF Conference 2002: Security v. Privacy. Internet Law & PolicyForum. September 17-19, 2002. Seattle, WA. For more information:

Privacy2002. Technology Policy Group. September 24-26, 2002.
Cleveland, OH. For more information:

Bridging the Digital Divide: Challenge and Opportunities. 3rd WorldSummit on Internet and Multimedia. October 8-11, 2002. Montreux,
Switzerland. For more information:

2002 WSEAS International Conference on Information Security (ICIS'02). World Scientific and Engineering Academy and Society. October14-17, 2002. Rio de Janeiro, Brazil. For more information:

IAPO Privacy & Security Conference. International Association ofPrivacy Officers. October 16-18, 2002. Chicago, IL. For moreinformation:

3rd Annual Privacy and Security Workshop: Privacy & Security: TotallyCommitted. Centre for Applied Cryptographic Research, University ofWaterloo and the Information and Privacy Commissioner/Ontario.
University of Toronto. November 7-8, 2002. Toronto, Canada. For moreinformation:

18th Annual Computer Security Applications Conference (ACSAC):
Practical Solutions to Real Security Problems. Applied ComputerSecurity Associates. December 9-13, 2002. Las Vegas, NV. For moreinformation:

Third Annual Privacy Summit. International Association of PrivacyOfficers. February 26-28, 2003. Washington, DC. 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).

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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 9.12


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