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EPIC Alert 9.16 [2002] EPICAlert 16


Volume 9.16 September 4, 2002

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

Table of Contents

[1] EPIC and Privacy International Release Annual Privacy Survey
[2] Secret Court Chastises DOJ & FBI on Surveillance Requests
[3] EU Council Draft Proposal Could Require Harmonized Data Retention
[4] State AGs Settle with DoubleClick, Ziff-Davis; Pursue Profiler
[5] NASA: No "Mind-Reading" Technology Without Independent Review
[6] EPIC Bill-Track: New Bills in Congress
[7] EPIC Bookstore - Privacy & Human Rights 2002
[8] Upcoming Conferences and Events

[1] EPIC and Privacy International Release Annual Privacy Survey

The Electronic Privacy Information Center (EPIC) and PrivacyInternational yesterday released the fifth annual Privacy and HumanRights survey. The report reviews the state of privacy in over fiftycountries around the world. It was released at a press conference atthe National Press Club in Washington, DC.

The Privacy and Human Rights report examines the impact of September11, 2001 on privacy and civil liberties. The report finds that manynew anti-terrorism laws adopted by national governments sinceSeptember 11 threaten political freedom. For example, in Canada, thenew anti-terrorism law adopts a controversial definition of "terroristactivity," authorizes "preventative" arrests and grants significantnew surveillance powers to the Canadian Security Intelligence Services(CSIS). In Denmark, a new law grants law enforcement the authority tocovertly install snooping software on computers of criminal suspectsand mandates retention of traffic data by ISPs. A similar dataretention requirement is included in the French anti-terrorism lawalong with a provision requiring disclosure of encryption keys.

In Germany, increased powers for government sharing of information andlegal authorization for biometric identifiers in passports andidentity cards have been put in place. In India, a new law givespolice sweeping powers to arrest and detain suspected terrorists,
conduct electronic surveillance, and curtail free expression. In theUK, a mandatory data retention scheme has been put in place and thegovernment is pushing the introduction of a national ID card.

In the United States, the USA-PATRIOT Act authorized increased sharingamong government agencies and significantly weakened privacyprotections in the federal wiretapping statutes. In Australia, aproposal to allow law enforcement to intercept electroniccommunications without a warrant was dropped from the package ofanti-terrorism measures adopted in late June but is likely toresurface at a later stage. In New Zealand a bill granting major newpowers to surveillance agencies is still pending, as is a proposalrequiring telecommunications operators to make all necessary changesto their systems in order to assist the police and intelligenceagencies intercept communications.

Marc Rotenberg, Executive Director of EPIC, said, "September 11 hasposed an enormous challenge to democratic governments around theworld. Too many adopted expanded surveillance authority withoutconsidering the long-term consequences for Constitutional government.
Still, there are important indications that citizens are not preparedto sacrifice political freedom to address the challenge of terrorism."

The EPIC/PI report also found that efforts to pass new data protectionlaws are continuing in Eastern Europe, Asia and Latin America. Asignificant campaign is underway in Japan to stop the adoption of anational identification system. In addition, efforts to protectprivacy in the workplace are gaining more prominence. The report,
which runs more than 400 pages, covers a wide range of other topicsincluding biometrics, genetic privacy, national ID cards, spy TV, andprivacy enhancing technologies.

The EPIC/PI Privacy and Human Rights report will be discussed onSeptember 6 at the London School of Economics. More information aboutthe event is available at:

"Privacy and Human Rights 2002: An International Survey of PrivacyLaws and Developments" is available for sale at the EPIC Bookstore:

The report is also available online (in PDF) at:

[2] Secret Court Chastises DOJ & FBI on Surveillance Requests

An extraordinary court ruling made public on August 22 casts seriousdoubt on the veracity and accuracy of claims made by the JusticeDepartment and the FBI in support of requests for approval of nationalsecurity and anti-terrorism surveillance. The previously secretdecision was issued on May 17 by the Foreign Intelligence SurveillanceCourt (FISC), a special panel of federal judges that overseesimplementation of the Foreign Intelligence Surveillance Act (FISA).
The court found that DOJ and FBI officials had submitted erroneousinformation in more than 75 applications for search warrants andwiretaps and had improperly shared intelligence information withagents and prosecutors handling criminal cases on at least fouroccasions. The "misstatements and omissions of material facts" havebeen so pervasive that in November 2000, the FISC held what itdescribed as "a special meeting to consider the troubling number ofinaccurate FBI affidavits in so many FISA applications."

As a result of these problems, the court refused to give DOJ the broadnew surveillance powers it sought to employ after the September 11terrorist attacks. Specifically, the FISC ruled that new proceduresproposed by Attorney General Ashcroft earlier this year would havegiven DOJ prosecutors too much control over national securityinvestigations and would have allowed the government to improperly useintelligence information for criminal cases, without the requisiteshowing of "probable cause." The court noted that it was rejectingthe new DOJ procedures "to protect the privacy of Americans in thesehighly intrusive surveillances and searches."

The government has appealed the FISC decision to the ForeignIntelligence Surveillance Court of Review, an appellate body createdby FISA that has never before convened in the 23 years since the FISCbegan functioning. The government brief argues that the FISC failedto properly apply changes to FISA that were contained in the USAPATRIOT Act, which Congress enacted in the wake of the September 11attacks.

One day before the disclosure of the FISC decision, EPIC, joined bythe American Civil Liberties Union and the American BooksellersFoundation for Free Expression, submitted a Freedom of Information Actrequest to DOJ seeking access to information about the pervasivenessof domestic spying under the provisions of the USA PATRIOT Act. TheFOIA request is similar to a series of questions submitted to DOJ inJuly by House Judiciary Chairman James Sensenbrenner (R-WI) andranking member John Conyers (D-MI). Following the government'sfailure to respond to most of those questions, Rep. Sensenbrenner hassaid that he may take the unusual step of issuing a subpoena toAttorney General Ashcroft if satisfactory answers are not forthcomingby this week.

The FISC's May 2002 Memorandum Opinion and Order are available at:

The Justice Department's appeal is available at:

The text of the USA PATRIOT ACT is available at:

[3] EU Council Draft Proposal Could Require Harmonized Data Retention

At the end of August, Statewatch, a British civil liberties watchdogorganization, released documents that show that the former Belgianpresidency of the European Union secretly drafted a framework decisionafter last year's terrorist attacks, calling for a EU-wide scheme ofdata retention for 12 to 24 months. The activist organizationconsiders the document as additional proof of the secret discussionsbetween the EU Council and law enforcement authorities to reach anagreement to implement a harmonized and general regime of dataretention across the European Union.

The Danish presidency of the EU immediately refuted the importance ofthe document, stating that there was no such proposal currently beingexamined. Instead, they referred to a June proposal, which, althoughit calls for binding rules on the approximation of Member States'
rules on the obligation of telecommunications service providers toretain traffic and location data, emphasizes that such regulation mustbe established in compliance with European privacy conventions and theEU data protection directive. However, the presidency has notexplained whether Member States might be working at their own levelson specific proposals for data retention, or whether the EU Councilcould later decide to table the issue.

Another document that Statewatch disclosed is a questionnaire theDanish presidency sent in August to all EU governments to gathercomments with respect to the regulation, practice and experiences oftraffic data retention in their countries. The answers are due onSeptember 9 and will be examined at an expert group (the Multi-
disciplinary Group on Organized Crime) meeting on September 16.

The release of these documents comes one month after the EU Directiveon Privacy and Electronic Communications (2002/58/EC) entered intoforce. The new legislation, to be implemented by October 2003 in allEU countries, leaves each Member State free to adopt laws authorizingdata retention and does not provide for any harmonized regime.

EPIC's Data Retention Page:

Statewatch documents are available online at:

The Danish presidency's press release is available at:

[4] State AGs Settle with DoubleClick, Ziff-Davis; Pursue Profiler

State Attorneys General, led by New York, have settled online privacycases against online advertiser DoubleClick and publisher Ziff-Davis.
Additionally, New York Attorney General Eliot Spitzer has brought suitagainst Student Marketing Group, a student profiling company.

In February 2000, EPIC filed a complaint with the Federal TradeCommission (FTC) alleging that DoubleClick unfairly collected andlinked personal information about Internet users without theirknowledge or control. The FTC declined to take action in that case.
Private class-action lawsuits were also brought against the company;
those actions were consolidated and settled earlier this summer.

The AG settlement provides greater protections than those establishedby self-regulatory agreements and terms of the private class-actionsuits. The settlement requires DoubleClick to provide greater notice,
transparency, and protection to those who are tracked by the company.
DoubleClick agreed to monitor the Web sites of all of its partners toensure that notice is given regarding the company's profiling and adtargeting activities. The company agreed to develop a "cookieanalyzer" that will allow users to view DoubleClick's cookies, anddetermine how they have been profiled. DoubleClick must now engage inregular destruction of logs that contain user information. The companywill be periodically audited by an independent firm to ensurecompliance, and has paid $450,000 to cover the states' investigatorycosts.

In a separate action, state Attorneys General pursued Ziff-Davis forinadvertently allowing 12,000 users' personal information to appear onthe Web. The information included credit card numbers, and severalsubscribers had unauthorized charges on their accounts after thesecurity breach. The agreement requires Ziff-Davis to enhancesecurity procedures and to conduct regular independent audits.
Ziff-Davis agreed to pay $500 to subscribers who submitted credit cardinformation to the company, and to pay $100,000 to the state AGs.

The New York AG recently filed suit against Student Marketing Group(SMG), a company that collected information from students for directmarketing. The company is alleged to have formed a non-profitsubsidiary, Educational Research Center of America (ERCA), that sentmillions of surveys to high schools to collect information for collegefinancial aid and scholarship opportunities. ERCA, without notice tothe schools or students, was also using the information for directmarketing of magazines, credit cards, and other items. The suit seekscivil penalties and an injunction preventing SMG and ERCA from usingthe information collected.

Congress acted earlier this year to limit student profiling. Inpassing H.R. 1, an education bill, Congress increased parents' rightsto inspect survey instruments that are used to collect data fromchildren. Parents (and students of a suitable age) may also opt out ofstudent surveys that collect personal information for marketingpurposes.

The DoubleClick Settlement Agreement is available at:

EPIC's Cookies Page:

The Ziff-Davis Settlement Agreement is available at:

NY AG Press Release on Student Marketing Group Case:

EPIC's Profiling Page:

[5] NASA: No "Mind-Reading" Technology Without Independent Review

EPIC recently obtained documents under the Freedom of Information Act(FOIA) that show NASA researchers have proposed the use of"non-invasive neuro-electric sensors" for airport security. Thesesensors would act like "super lie-detectors," according to NASAofficials, and would be integrated into the security check. Inresponse to a Washington Times article based on those documents, NASAissued a press release stating that it has not approved of anyresearch in the area of "mind reading" and that "because of thesensitivity of such research," the agency would seek independentreview before granting approval to future projects.

This information was part of a briefing NASA made to NorthwestAirlines in December 2001 on the ways NASA could assist aviationsecurity. Other measures outlined in the briefing included extensivedata mining and risk profiling of all airline passengers. Thedocuments were obtained as part of an FOIA lawsuit EPIC initiatedagainst the Transportation Security Agency. While the brain scanningtechnology might be a distant possibility, the documents highlight therisk of the government funding the development of new surveillancetechnologies without appropriately considering their potential impacton society.

NASA Ames Research Center Northwest Airlines Briefing:

EPIC Air Travel Privacy Page:

NASA Press Release:

NASA Plans to Read Terrorist's Minds at Airports, Washington Times,
August 17, 2002:

NASA Watch on the information behind Washington Times story:

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


H.R.5117 Making supplemental appropriations for the Department ofDefense for the fiscal year ending September 30, 2002, and for otherpurposes. Sponsor: Rep Young, C. W. Bill (R-FL). Latest Major Action:
7/15/2002 Referred to House committee. Status: Referred to the HouseCommittee on Appropriations. Committees: House Appropriations.

H.R.5120 Making appropriations for the Treasury Department, the UnitedStates Postal Service, the Executive Office of the President, andcertain Independent Agencies, for the fiscal year ending September 30,
2003, and for other purposes. Sponsor: Rep Istook, Ernest J., Jr.
(R-OK). Latest Major Action: 7/25/2002 Senate preparation for floor.
Status: Received in the Senate. Read twice. Placed on SenateLegislative Calendar under General Orders. Calendar No. 517.
Committees: House Appropriations.

H.R.5211 To amend title 17, United States Code, to limit the liabilityof copyright owners for protecting their works on peer-to-peernetworks. Sponsor: Rep Berman, Howard L. (D-CA). Latest Major Action:
7/25/2002 Referred to House committee. Status: Referred to the HouseCommittee on the Judiciary. Committees: House Judiciary.

H.R.5215 Confidential Information Protection and StatisticalEfficiency Act of 2002. To protect the confidentiality of informationacquired from the public for statistical purposes, and to permit theexchange of business data among designated statistical agencies forstatistical purposes only. Sponsor: Rep Horn, Stephen (R-CA). LatestMajor Action: 7/25/2002 Referred to House committee. Status: Referredto the House Committee on Government Reform. Committees: HouseGovernment Reform.

H.R.5257 Keeping All Children Safe in Schools Act of 2002. To provideprivate school parity with public schools in obtaining criminalbackground checks of employees, volunteers, and applicants, and forother purposes. Sponsor: Rep Fletcher, Ernest L. (R-KY). Latest MajorAction: 7/26/2002 Referred to House committee. Status: Referred to theHouse Committee on Education and the Workforce. Committees: HouseEducation and the Workforce.


S.2740 An original bill making appropriations for the TreasuryDepartment, the United States Postal Service, the Executive Office ofthe President, and certain Independent Agencies, for the fiscal yearending September 30, 2003, and for other purposes. Sponsor: SenDorgan, Byron L. (D-ND). Latest Major Action: 7/17/2002 Senatepreparation for floor. Status: Placed on Senate Legislative Calendarunder General Orders. Calendar No. 498. Committees: SenateAppropriations.

S.2778 An original bill making appropriations for the Departments ofCommerce, Justice, and State, the Judiciary, and related agencies forthe fiscal year ending September 30, 2003, and for other purposes.
Sponsor: Sen Hollings, Ernest F. (D-SC). Latest Major Action:
7/24/2002 Senate preparation for floor. Status: Placed on SenateLegislative Calendar under General Orders. Calendar No. 512.
Committees: Senate Appropriations.

S.2794 Homeland Security Act of 2002. A bill to establish a Departmentof Homeland Security, and for other purposes. Sponsor: Sen Gramm, Phil(R-TX) Latest Major Action: 7/25/2002 Referred to Senate committee.
Status: Read twice and referred to the Committee on GovernmentalAffairs. Committees: Senate Governmental Affairs.

S.2826 Our Lady of Peace Act. A bill to improve the national instantcriminal background check system, and for other purposes. Sponsor: SenSchumer, Charles E. (D-NY). Latest Major Action: 7/30/2002 Referred toSenate committee. Status: Read twice and referred to the Committee onthe Judiciary. Committees: Senate Judiciary.

S.2843 Product Safety Notification and Recall Effectiveness Act of2002. A bill to direct the Consumer Product Safety Commission topromulgate a rule that requires manufacturers of certain consumerproducts to establish and maintain a system for providing notificationof recalls of such products to consumers who first purchase such aproduct. Sponsor: Sen Landrieu, Mary L. (D-LA). Latest Major Action:
8/1/2002 Referred to Senate committee. Status: Read twice and referredto the Committee on Commerce, Science, and Transportation. Committees:
Senate Commerce, Science, and Transportation.

S.2846 Security and Liberty Preservation Act. A bill to establish acommission to evaluate investigative and surveillance technologies tomeet law enforcement and national security needs in the manner thatbest preserves the personal dignity, liberty, and privacy ofindividuals within the United States. Sponsor: Sen Edwards, John(D-NC). Latest Major Action: 8/1/2002 Referred to Senate committee.
Status: Read twice and referred to the Committee on the Judiciary.
Committees: Senate Judiciary.

S.2887 Homeland Security Information Sharing Act. A bill to providefor the sharing of homeland security information by Federalintelligence and law enforcement agencies with State and localentities. Sponsor: Sen Feinstein, Dianne (D-CA). Latest Major Action:
8/1/2002 Referred to Senate committee. Status: Read twice and referredto the Committee on the Judiciary. Committees: Senate Judiciary.

S.2894 Flag Protection Act of 2002. A bill to provide for theprotection of the flag of the United States, and for other purposes.
Sponsor: Sen McConnell, Mitch (R-KY). Latest Major Action: 8/1/2002Referred to Senate committee. Status: Read twice and referred to theCommittee on the Judiciary. Committees: Senate Judiciary.

S.2895 Comprehensive Seaport and Container Security Act of 2002. Abill to enhance the security of the United States by protectingseaports, and for other purposes. Sponsor: Sen Feinstein, Dianne(D-CA). Latest Major Action: 8/1/2002 Referred to Senate committee.
Status: Read twice and referred to the Committee on Commerce, Science,
and Transportation. Committees: Senate Commerce, Science, andTransportation.

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

[7] EPIC Bookstore - Trust Us, We're Experts

Privacy & Human Rights 2002: An International Survey of Privacy Lawsand Developments (EPIC 2002).

This annual report by EPIC and Privacy International reviews the stateof privacy in over fifty countries around the world. It outlineslegal protections for privacy, new challenges, and summarizesimportant issues and events relating to privacy and surveillance.

The 2002 edition of Privacy and Human Rights examines the impact ofgovernment proposals after September 11, 2001 on privacy and civilliberties. The report documents many new anti-terrorism and securitymeasures and identifies key trends including increased communicationssurveillance, weakening of data protection regimes, and increasedprofiling and identification of individuals.

The 2002 Privacy and Human Rights report finds that laws to protectprivacy in the workplace are gaining more support and that efforts topass new data protection laws are continuing in Eastern Europe, Asiaand Latin America. Important debates are also taking place around theworld concerning the future of new technologies for identification andsurveillance.

EPIC Publications:

"Privacy & Human Rights 2002: An International Survey of Privacy Lawsand Developments" (EPIC 2002). Price: $25.

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, video surveillance, location tracking, IDsystems and freedom of information laws.

"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:

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

Civil Liberties Under Attack -- One Year Later. National LawyersGuild; Refuse & Resist. September 7, 2002. Los Angeles, CA. For moreinformation:
IT and Law. University of Geneva, University of Bern, SwissAssociation of IT and Law. September 9-10, 2002. Geneva, Switzerland.
For more information:

Observing Surveillance. Photo Exhibit. September 12, 2002. Washington,
DC. For more information:

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

The Biometric Consortium Conference (BC2002). Biometric Consortium.
September 23-25, 2002. Arlington, VA. For more information:

Privacy2002: Information, Security & New Global Realities. TechnologyPolicy Group. September 24-26, 2002. Cleveland, OH. For moreinformation:

Privacy Management Summit. Privastaff. September 25, 2002. San Jose,
CA. For more information:

Commercialization of Human Genomics: Consequences for Science andHumanity. Duke University Center for Genome Ethics, Law, and Policy.
September 27-28, 2002. Durham, NC. For more information:

Privacy in Ubicomp 2002: Workshop on Socially-informed Design ofPrivacy-enhancing Solutions in Ubiquitous Computing. Held as part ofUBICOMP 2002. September 29, 2002. Goeteborg, Sweden. For moreinformation:

Shrinking World, Expanding Net. Computer Professionals for SocialResponsibility (CPSR). October 5, 2002. Cambridge, MA. For moreinformation:

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:

Privacy Trends: Complying With New Demands. Riley Information ServicesInc. and the Commonwealth Centre for Electronic Governance. October22, 2002. Ottawa, Canada. For more information:

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:

First Hawaii Biometrics Conference. Windward Community College,
Pacific Center for Advanced Technology Training (PCATT). November10-13, 2002. Waikiki, HI. For more information:

Transformations in Politics, Culture and Society. Inter-
Disciplinary.Net. December 6-8, 2002. Brussels, Belgium. 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:

CFP2003: 13th Annual Conference on Computers, Freedom, and Privacy.
Association for Computing Machinery (ACM). April 1-4, 2003. New York,
NY. 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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Drink coffee, support civil liberties, get a tax deduction, and learnLatin at the same time! Receive a free "sed quis custodietipsos 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 9.16


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