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EPIC Alert 9.04 [2002] EPICAlert 4


Volume 9.04 February 27, 2002

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

Table of Contents

[1] Paying for Big Brother: Surveillance Funding in DOJ Budget
[2] Supreme Court Hears Anonymity Case; Rejects "Peer Grading" Privacy
[3] EPIC Seeks DC Surveillance Camera Records
[4] ICANN Reconsiders At-Large Participation
[5] Law Schools and EFF Form "Chilling Effects Clearinghouse"

[6] EPIC Bill-Track: New Bills in Congress
[7] EPIC Bookstore - Terrorism & the Constitution
[8] Upcoming Conferences and Events

[1] Paying for Big Brother: Surveillance Funding in DOJ Budget

The President's FY 2003 Budget Proposal requests a $1.8 billionincrease in funding for the Department of Justice, includingsubstantial spending on surveillance, profiling and informationsharing. To increase public understanding and foster debate on theproposed budget, EPIC has released a report entitled "Paying for BigBrother: A Review of the Proposed FY2003 Budget for the Department ofJustice."

The report, released today, draws attention to the levels of fundingthat DOJ seeks for surveillance, the nature of the mechanismsproposed, and the unanswered questions regarding the impact of DOJ'sproposal on privacy and civil liberties. It analyzes the generalprograms under DOJ's jurisdiction, as well as programs implemented bythe Immigration and Naturalization Service (INS), the proposed newNational Security Coordination Council, the Detention Trustee, theCounterterrorism Fund, the Federal Bureau of Investigation (FBI), theDrug Enforcement Administration, the U.S. Marshals Service and theU.S. Attorneys.

The report finds that for each organization under its authority, theDepartment of Justice has thus far released insufficient informationabout its programs to allow Congress or the public to evaluate them.
EPIC recognizes that the current climate has prompted a shift towardsmore vigorous law enforcement and that intelligence and securitymechanisms must maintain some level of confidentiality. However, itis equally important for government actions in these areas to beaccountable, and for meaningful oversight to ensure protection ofprivacy and civil liberties. The EPIC report concludes that DOJ'sbudget proposal does not provide adequate information about the natureof its surveillance programs, the potential of the technology, theextent of information sharing, or safeguards implemented to preventmisuse or security lapses.

As discussed in the report, Congress has several opportunities in thecoming weeks to seek answers and explanations from the Department ofJustice, its subsidiary organizations and Attorney General Ashcroft.
EPIC urges lawmakers to make conscientious use of their oversightfunction in evaluating DOJ's new surveillance proposals.

EPIC's report is available online at:

Testimony of Attorney General Ashcroft before the SenateAppropriations Committee, February 26, 2002:

Department of Justice Budget Information:

[2] Supreme Court Hears Anonymity Case; Rejects "Peer Grading" Privacy

On February 26, the Supreme Court heard arguments in Watchtower Biblev. City of Stratton, a case that considers whether a registrationrequirement for door-to-door canvassing to promote a cause violatesthe First Amendment. EPIC, the ACLU, and 14 legal scholars submittedan amicus brief arguing that the ordinance implicates privacy, as wellas the First Amendment rights of anonymity, expression, and freedom ofassociation.

During the argument, the Justices asked the attorney for WatchtowerBible whether there was a real problem for the clients since the cityof Stratton routinely grants the request for a permit. He respondedthat the ordinance was an effort to discourage the Jehovah's Witnessesand that the city should not restrict communications between willingparties. Justice Ginsburg asked whether the ordinance scheme inStratton was permissible after the Supreme Court's earlier decision inBuckley v. ACLF. In that case, the Court said petition circulatorscould not be required to wear a name badge, but could be required toprovide identifying information when the petition is submitted to thestate secretary. The Watchtower attorney replied that this procedurewas clearly necessary for the ensuring the integrity of the electoralprocess, but would not be justified for core First Amendment activity.

The attorney for the City of Stratton came under repeated questioningfrom the Justices about the scope of the ordinance. Justice O'Connorasked whether trick-or-treaters needed to first obtain a permit beforegoing door-to-door at Halloween. She asked also whether she wouldneed permission from the mayor before asking a neighbor for a cup ofsugar. Justice Scalia, following a lengthy series of questions aboutthe "remarkable scope" of the ordinance said that the City wassuggesting that ordinance was okay because "it only addressescommunication." He objected to the characterization of in-personcommunication in the Stratton permit application as a "privilegedesired." Scalia also noted that "one of the costs of liberty is thehigher risk of unlawful activity."

An interesting line of questions was pursued by Justice Ginsburg, whoasked if the city had the ability to allow homeowners to designatethat they did not want Jehovah's Witnesses to knock on their doors,
and whether they also had the ability to request that only Caucasiansknock on their doors. "How different," she asked, "is that fromsaying 'No Jehovah's Witnesses?'"

The Court is expected to issue an opinion in the case sometime beforeJune.

On February 20, the Supreme Court announced an opinion in OwassoIndependent School District v. Falvo. In that case, the Court upheldthe practice of allowing one student to grade another's work, rulingthat the activity did not violate the Family Educational Rights andPrivacy Act. The Supreme Court rejected Kristja Falvo's argument thatforcing children to have their grades read aloud in the classroom is aviolation of a 1974 federal law that guarantees the privacy of studentrecords.

The Court also announced that next year it will consider two morecases of interest to the Internet community: the legality of postingsex offenders' names online (Otte v. Doe) and whether Congress canextend copyrights, a move that could result in thousands of classicworks becoming freely available via the Internet (Eldred v. Ashcroft).

Supreme Court - Watchtower Bible:

EPIC, ACLU, 14 Legal Scholars Amicus Brief:

Owasso Independent School District v. Falvo:

[3] EPIC Seeks DC Surveillance Camera Records

In response to news reports that the Metropolitan Police Department(MPD) had constructed an extensive surveillance camera network inWashington, D.C., EPIC has filed a series of Freedom of InformationAct (FOIA) requests to learn more about the system. The system allowspolice to monitor surveillance cameras from around the city in acentral office called the "Synchronized Operations Command Center"

The system was assembled and activated with no public dialogue ordebate. Since its activation, the camera network has been used tomonitor individuals engaged in legitimate First Amendment activities,
including the participants in the World Bank and InternationalMonetary Fund protests in April 2000. Basic questions regarding thesystem -- such as the cost of the system and issues of access to data,
data retention, and data sharing -- remain unknown.

EPIC's request seeks information about the cameras, the policies ontheir use, and future plans for expansion of the network. The requestwas directed to the MPD and federal agencies that have access to theSOCC for monitoring. The MPD has plans to link even more cameras tothe system, including cameras from private stores in Washington'sGeorgetown neighborhood.

Rep. Connie Morella (R-MD) has expressed objections to the monitoringnetwork as well. Rep. Morella chairs a House Government Reformsubcommittee that has oversight on DC policy, and has called forhearings on the issue.

On February 26, the MPD announced that it had turned off twelvecameras that monitored buildings in and around the National Mall. Thecameras were deactivated with the close of the Olympic Games in SaltLake City, Utah and the end of the terror alert announced last monthby Attorney General John Ashcroft; however, the cameras could bereactivated at any time.

EPIC Press Release on DC Surveillance Cameras:

EPIC Face Recognition Page:

Privacy International Video Surveillance Page:

[4] ICANN Reconsiders At-Large Participation

On February 24, Stuart Lynn, President and CEO of the InternetCorporation for Assigned Names and Numbers (ICANN), proposed a majorreorganization of the body's current governing structure following aprivate retreat of board directors in Washington over the weekend.
Among other things, his proposed changes would substitute a 15-memberBoard of Trustees for the current 19-member Board of Directors. Fiveof these seats would be given to national governments, five more wouldbe appointed by a "Nominating Committee," and the remaining five wouldbe made up of the chairs of three new Policy Committees, the chair ofa Technical Advisory Committee, and the CEO. The plan would abolishpublic (or "At-Large") elections of Board members, thereby eliminatingany role for the Internet user community in ICANN's decision makingprocesses.

As originally designed, the Board of Directors was supposed tocomprise nine elected At-Large members, nine representatives of theinternal Supporting Organizations (SOs), and the Chairperson.
Currently, however, only five of the nine At-Large seats are filled byelected individuals with the remaining four occupied by interim,
unelected individuals. In July 2000, a study committee (ALSC) was setup to re-examine the entire At-Large issue. In November 2001, theALSC issued a report calling for the reduction in the number ofAt-Large Board seats from nine to six and payment of a membership feeas a prerequisite to voting. Both the ALSC report and Mr. Lynn's moreradical proposal for restructuring will be discussed by the Board inan open forum with the public at the upcoming ICANN meetings in Accra,
Ghana, March 10-14, 2002.

Mr. Lynn's announcement is available at:

The ALSC report is available at:

The schedule for the Accra meetings is available at:

For commentary on these and other recent ICANN developments, alsovisit the Internet Democracy Project at:

[5] Law Schools and EFF Form "Chilling Effects Clearinghouse"

On February 25, the Electronic Frontier Foundation (EFF) and four lawschool clinics announced the launch of a website and project that hasbeen established to educate Internet users about their rights online.
The Chilling Effects Clearinghouse provides detailed information aboutthe legal rights of Internet users regarding "cease-and-desist"
letters (letters sent from entities claiming violation of copyright ortrademark and other grievances and threatening legal action if theviolating party does not cease and desist). The project currentlyprovides basic legal information on issues like copyright and theDigital Millennium Copyright Act, trademark and domain names,
anonymous speech, and defamation.

The Chilling Effects website includes a forum for Internet users topost their cease-and-desist letters to an online clearinghouse.
Students at the participating law clinics will review the letters andannotate them with links to explain applicable legal rules. The fourInternet law clinics currently involved are Harvard, Stanford, theUniversity of California at Berkeley, and the University of SanFrancisco, and the project is expected to grow to include additionallaw schools.

Posted letters will remain online in a searchable database thatinterested parties can consult to find information that relates totheir particular situation. "The Internet makes it easier forindividuals to speak to a wide audience, but it also makes it easierfor other people and corporations to silence that speech," said WendySeltzer, Fellow at Harvard's Berkman Center for Internet and Society,
who created the project and website. "Chilling Effects aims to levelthe field by helping online speakers to understand their rights in theface of legal threats."

Chilling Effects website:

EPIC's Free Speech Page:

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


H.R.3716 Online Criminal Liability Standardization Act of 2002. Toamend title 18, United States Code, to provide a defense againstcertain criminal prosecutions for interactive computer serviceproviders. Sponsor: Rep Goodlatte, Bob (R-VA). Latest Major Action:
2/12/2002 Referred to House committee: House Judiciary.

H.R.3726 Video Voyeurism Act of 2002. To amend title 18, United StatesCode, to prohibit video voyeurism in the special maritime andterritorial jurisdiction of the United States. Sponsor: Rep Oxley,
Michael G (R-OH). Latest Major Action: 2/12/2002 Referred to Housecommittee: House Judiciary.


S.1928 To amend section 222 of the Communications Act of 1934 torequire affirmative written consent by a customer to the release ofcustomer proprietary network information. A bill to amend section 222of the Communications Act of 1934 to require affirmative writtenconsent by a customer to the release of customer proprietary networkinformation. Sponsor: Sen Wellstone, Paul D. (D-MN). Latest MajorAction: 2/11/2002 Referred to Senate committee: Senate Commerce,
Science, and Transportation.

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

[7] EPIC Bookstore - Terrorism & the Constitution

Terrorism & the Constitution: Sacrificing Civil Liberties in the Nameof National Security, by James X. Dempsey and David Cole. 2nd ed.

In Terrorism & the Constitution, authors Jim Dempsey (Deputy Director,
Center for Democracy and Technology) and David Cole (Law Professor,
Georgetown University) trace the history of abuse of civil libertiesin the name of national security, concentrating on the Federal Bureauof Investigation and the 1996 and 2001 Antiterrorism Acts. Full ofendnotes valuable to activists and lawyers, yet written for a generalaudience, Terrorism & the Constitution is a well-balanced examinationof the intersection between civil liberties and the level of securitynecessary to protect our nation against terrorism.

Terrorism & the Constitution has been praised highly by Rep. JohnConyers, Jr., Gore Vidal, ACLU President Nadine Strossen, ArabAmerican Institute President Dr. James Zogby, and many more. The newedition is fully revised and updated for 2002, and includes a newchapter on the response to September 11.

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

2nd Annual BNA Summit: Combatting Cyber Attacks on your CorporateData. Bureau of National Affairs. February 27-28, 2002. Washington,
DC. For more information:

Rethinking Law & Marketing in the Age of Privacy & Security. WileyRein & Fielding LLP. February 28, 2002. Redwood Shore, CA. For moreinformation:

Understanding Privacy: New Laws, New Challenges. BC Freedom ofInformation and Privacy Association (FIPA). March 11-12, 2002.
Vancouver, British Columbia, Canada. For more information:

HIPAA Summit West II: The Leading Forum on Healthcare Privacy,
Confidentiality, Data Security, and HIPAA Compliance. March 13-15,
2002. San Francisco, CA. For more information:

Eighth Annual National Conference, "Managing the NEW PrivacyRevolution," and First Annual Privacy Expo 2002. Privacy & AmericanBusiness and Privacy Council. March 20-22, 2002. Washington, DC. Formore information:

Fourth Annual e-ProtectIT Infrastructure Security Conference. NorwichUniversity. March 20-22, 2002. Northfield, Vermont. For moreinformation:

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

Consumer Protection Issues in 2002 and Beyond. Association of the Barof the City of New York, Committee on Consumer Affairs. April 11,
2002. New York, NY. For more information:

The 27th Annual AAAS Colloquium on Science and Technology Policy:
Science and Technology in a Vulnerable World: Rethinking Our Roles.
American Association for the Advancement of Science. April 11-12,
2002. Washington, DC. For more information:

Workshop on Privacy Enhancing Technologies. April 14-15, 2002. SanFrancisco, CA. For more information:

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

4th Annual MIT Sloan eBusiness Awards. Massachusetts Institute ofTechnology, Sloan School of Management. April 17, 2002. Cambridge, MA.
For more information:

2002 IEEE Symposium on Security and Privacy. IEEE and theInternational Association for Cryptologic Research. May 12-15, 2002.
Oakland, CA. For more information:

INET 2002. Internet Society. June 18-21, 2002. Washington, DC. Formore 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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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 9.04


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