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EPIC Alert 9.09 [2002] EPICAlert 9


Volume 9.09 May 10, 2002

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

Table of Contents

[1] DOJ Says Office of Homeland Security Not Subject to FOIA
[2] EPIC Files Objections to DoubleClick Class Action Settlement
[3] EPIC Urges Openness, Accountability for Infrastructure Protection
[4] Consumer Groups and State AGs Argue for Financial Privacy
[5] Coalition Proposes Alternatives to Weak Privacy Bill
[6] EPIC Bill-Track: New Bills in Congress
[7] EPIC Bookstore - The First Amendment and Civil Liability
[8] Upcoming Conferences and Events

[1] DOJ Says Office of Homeland Security Not Subject to FOIA

The Department of Justice (DOJ) is seeking the dismissal of EPIC'sFreedom of Information Act (FOIA) lawsuit against the Office ofHomeland Security (OHS). In a brief submitted to the U.S. DistrictCourt in Washington, DOJ argues that OHS is not an "agency" andtherefore is not subject to the FOIA's open government requirements.
The brief argues that the OHS "functions solely to advise and assistthe President and, does not exercise substantial independentauthority." It likens the OHS to the National Security Council, whichthe D.C. Circuit Court in 1996 held was exempt from the FOIA.

EPIC plans to file a reply arguing that the OHS does in fact exercisesubstantial independent authority. The OHS has a limited trackrecord, but has extensive powers that are already in evidence. Theadministration appears to prefer downplaying the role of the OHS sothat there will be no "chilling effect on the advisory role" from the"knowledge that FOIA can be invoked." EPIC firmly believes that,
under well-established principles of open government, an agency likethe OHS -- especially with its important mandate -- should be open topublic oversight. The FOIA, which, among other agencies, covers theCIA, FBI, and NSA, makes adequate provision for protecting sensitiveinformation from disclosure. Acknowledging the proper role of the OHSwill also serve to make the office more effective.

EPIC is seeking the disclosure of documents relating to OHS DirectorTom Ridge's efforts to create a "trusted-traveler" card and his plansto standardize state driver's licenses so as to create a de factonational identification system.

For more information, see EPIC's Homeland Security Page:

[2] EPIC Files Objections to DoubleClick Class Action Settlement

On Monday, May 6th, EPIC filed formal objections in the U.S. DistrictCourt for the Southern District of New York to a proposed settlementreached by class action attorneys and DoubleClick. A series of classaction lawsuits were brought against DoubleClick for violation ofprivacy relating to the company's cookie tracking practices. Theseactions were consolidated by the court into a single case forsettlement discussions. Because the case is a class action, theproposed settlement must be approved by the court, and a hearing hasbeen scheduled for May 21 to determine whether the settlement is"fair, reasonable, and adequate."

As part of class action procedure rules, the judge published the termsof the settlement, which will bind all individuals who were impactedby DoubleClick's profiling practices. EPIC, on behalf of itself,
members of the public, and its individual employees, filed with thecourt formal objections to the proposed settlement and concurrentlyasked that its employees be exempted from the settlement if approved.

EPIC asserted that the proposed settlement is inappropriate because itdoes not provide any significant benefit to class members that was notpreviously agreed to by DoubleClick as part of its earlier agreementwith the Federal Trade Commission (FTC) under the terms of the NetworkAdvertising Initiative (NAI). DoubleClick has not made anysignificant change to its practices or its policies, nor has itprovided the type of meaningful privacy protection sought by theconsumer and privacy organizations (including EPIC) that filed theinitial complaint with the FTC. It appears that the only significantnew component in the proposed settlement is DoubleClick's agreement topay almost two million dollars to the plaintiffs' lawyers.

In its submission to the court, EPIC made side-by-side comparisonsbetween DoubleClick's obligations under the weak NAI terms andDoubleClick's obligations under the proposed settlement, and concludedthat the proposed settlement fails to match those commitments to whichDoubleClick is already bound. EPIC further argued that a broad rangeof leading organizations representing the interests of consumersacross the U.S. believe that stronger obligations should be imposed ona company, such as DoubleClick, that routinely monitors and profilesInternet users without their consent. EPIC concluded its objectionswith specific recommendations for the provisions of a settlementagreement that serves the public interest.

The proposed settlement is available at:

EPIC's formal objection is available at:

For background information on the DoubleClick settlement, see:

[3] EPIC Urges Openness, Accountability for Infrastructure Protection

In testimony before the Senate Governmental Affairs Committee on May8, EPIC General Counsel David Sobel criticized proposals to create anew Freedom of Information Act (FOIA) exemption for "criticalinfrastructure information." He told the Committee that, "rather thanseeking ways to hide information, Congress should consider approachesthat would make as much information as possible available to thepublic" concerning security flaws in critical systems. Sen. RobertBennett (R-UT), a member of the Committee, has introduced the CriticalInfrastructure Information Security Act (S. 1456), which seeks toencourage businesses to disclose to federal agencies any informationthey possess about vulnerabilities in computer systems or networks.
The bill would grant such companies exemptions from the FOIA, as wellas antitrust protections and immunity from lawsuits that might resultfrom voluntary disclosures of security flaws.

Sobel told the Committee that "Congress should consider appropriateincentives" to encourage disclosures, but "secrecy and immunity, whichform the basis for many of the proposals put forward to date, removetwo of the most powerful incentives -- openness and liability." Henoted that "many security experts believe that disclosure andpotential liability are essential components of any effort toencourage remedial action."

Committee chairman Sen. Joseph Lieberman (D-CT), ranking member Sen.
Fred Thompson (R-TN) and several government and industry witnessesacknowledged that many issues raised by the legislation, as currentlydrafted, must be resolved. John Malcolm, Deputy Assistant AttorneyGeneral in the Justice Department's Criminal Division, said the billmust clarify that the federal government could pursue criminal casesagainst companies based on information they disclose. He alsoexpressed concern that the bill could hamper the government's abilityto pursue civil cases against companies based on the voluntarilysubmitted information. As now written, he said, the legislation would"tie the government's hands."

EPIC's testimony on critical infrastructure information:

EPIC's Critical Infrastructure Protection Page:

[4] Consumer Groups and State AGs Argue for Financial Privacy

EPIC, the Privacy Rights Clearinghouse, U.S. PIRG and the ConsumersUnion submitted comments on May 1 for a U.S. Treasury Department studyon the effectiveness of Gramm-Leach-Bliley Act (GLBA) financialprivacy protections. The comments criticize the GLBA for "fail[ing]
to provide the adequate protections for consumer privacy in modernfinancial services." The groups point to practices by someinstitutions -- including the sale of personal data -- and lament theloss of individual privacy due to a "lack of control over use ofsensitive data."

Congress enacted the GLBA, which requires companies to give notice toconsumers about their information-sharing practices, in response topublic concern about privacy loss. However, the GLBA places theburden on consumers to "opt-out," or affirmatively respond, if theywish to restrict how their information is shared. Because customersare unlikely to read opt-out notices, any consent implied from theirsilence is not truly informed. The comments describe such a system asinherently faulty: "Any system to protect the privacy of personalinformation that relies upon silence as agreement has the built-inelements for abuse and eventually public outcry."

Other inadequacies of the GLBA highlighted in the comments are thefact that institutions have a financial incentive to create confusingprivacy notices and opt-out procedures that are difficult to follow.
When companies send the required notices to consumers, the noticesoften are overlooked or viewed as junk mail and thrown away. Second,
the GLBA assumes a company has the ability or desire to explain acomplex legal principle in a way that allows consumers to make aninformed choice, which is not necessarily the case. Third, there areno restrictions on the sharing of information about individuals whoare not customers. In addition, the enforcement mechanisms areinadequate to ensure that companies are complying with the existingprotections.

Attorneys General in 37 states filed similar comments on this matter,
which argue that "current law does not adequately protect consumers'
privacy" and poses a significant risk to consumers.

EPIC's comments are available at:

Comments of 37 State Attorneys General:

Treasury Department request for comments:

[5] Coalition Proposes Alternatives to Weak Privacy Bill

Rep. Cliff Stearns (R-FL), Chair of the House Commerce Subcommittee onCommerce, Trade, and Consumer Protection, has introduced H.R. 4678,
the Consumer Privacy Protection Act of 2002. The bill, which iscosponsored by the Chair of the House Commerce Committee and 18 otherDemocrats and Republicans, would be the weakest federal informationprivacy law on the books if passed. In response, a coalition ofprivacy organizations has set out the framework for alternative, moreeffective privacy legislation.

There are several inadequate provisions in Stearns' bill. Forexample, the bill would regulate both online and offline datacollection, but individuals would have almost no protections againstsecondary use of their data. Individuals would receive notice andopportunity to opt-out for a five-year period, but data collectors arefree to share data with an unlimited number of "information sharingpartners." Additionally, individuals would have to rely on FederalTrade Commission (FTC) enforcement, as the bill specifically barsprivate lawsuits.

The bill also preempts all conflicting state privacy law, includingcommon law and regulatory protections. This would result in a seriousdiminution of privacy for all Americans.

Stearns' bill would harm not only American privacy, but alsointernational privacy law and voluntary programs such as the US-EUSafe Harbor. It requires the Secretary of Commerce to "harmonize," orwater down, international privacy laws so that they match the weakprotections embodied in the Stearns bill. Additionally, the billcould block the FTC from enforcing voluntary agreements made under theSafe Harbor.

Other provisions include a requirement that data collectors develop asecurity plan that is approved by company management, the ability ofdata collectors to renege on information sharing guarantees thatexceed the notice and opt-out framework, as long as 30 days notice isgiven to customers, and total immunity from monetary damages if thedata collector joins a self-regulatory seal program absent willfulnon-compliance.

A coalition of privacy organizations and consumer groups sent a letterto members of Stearns' committee outlining a framework of FairInformation Practices (FIPs) for effective privacy legislation.
Stearns' legislation fails to satisfy any of these FIPs.

H.R. 4678, the Consumer Privacy Protection Act of 2002:

The coalition privacy letter is available at:

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


H.R.4187 Presidential Records Act Amendments of 2002. To amend chapter22 of title 44, United States Code, popularly known as thePresidential Records Act, to establish procedures for theconsideration of claims of constitutionally based privilege againstdisclosure of Presidential records. Sponsor: Rep Horn, Stephen (R-CA).
Latest Major Action: 4/11/2002 referred to House committee. LatestStatus: Referred to the House Committee on Government Reform.
Committees: House Government Reform.

H.R.4513 Social Security Number Protection Act of 2002. To strengthenthe authority of the Federal Government to protect individuals fromcertain acts and practices in the sale and purchase of Social Securitynumbers and Social Security account numbers, and for other purposes.
Sponsor: Rep Markey, Edward J. (D-MA) Latest Major Action: 5/6/2002Referred to House subcommittee. Latest Status: Referred to theSubcommittee on Commerce, Trade and Consumer Protection. Committees:
House Energy and Commerce; House Ways and Means.

H.R.4561 Federal Agency Protection of Privacy Act. To amend title 5,
United States Code, to require that agencies, in promulgating rules,
take into consideration the impact of such rules on the privacy ofindividuals, and for other purposes. Sponsor: Rep Barr, Bob (R-GA).
Latest Major Action: 5/1/2002 House committee/subcommittee actions.
Latest Status: Subcommittee Hearings Held. Committees: HouseJudiciary.

H.R.4598 Homeland Security Information Sharing Act. To provide for thesharing of homeland security information by Federal intelligence andlaw enforcement agencies with State and local entities. Sponsor: RepChambliss, Saxby (R-GA) Latest Major Action: 4/25/2002 Referred toHouse committee. Latest Status: Referred to the Committee onIntelligence (Permanent Select), and in addition to the Committee onthe Judiciary, for a period to be subsequently determined by theSpeaker, in each case for consideration of such provisions as fallwithin the jurisdiction of the committee concerned. Committees: HouseSelect Committee on Intelligence; House Judiciary.

H.R.4628 Intelligence Authorization Act for Fiscal Year 2003. Toauthorize appropriations for fiscal year 2003 for intelligence andintelligence-related activities of the United States Government, theCommunity Management Account, and the Central Intelligence AgencyRetirement and Disability System, and for other purposes. Sponsor: RepGoss, Porter J.(R-FL). Latest Major Action: 5/1/2002 Referred to Housecommittee. Latest Status: Referred to the House Committee onIntelligence (Permanent Select). Committees: House Select Committee onIntelligence.

H.R.4629 To amend the Office of Federal Procurement Policy Act toestablish a program to encourage and support carrying out innovativeproposals to enhance homeland security, and for other purposes.
Sponsor: Rep Davis, Tom (R-VA) Latest Major Action: 5/1/2002 Referredto House committee. Latest Status: Referred to the House Committee onGovernment Reform. Committees: House Government Reform.

H.R.4633 Driver's License Modernization Act of 2002. To amend title23, United States Code, to establish standards for State programs forthe issuance of drivers' licenses and identification cards, and forother purposes. Sponsor: Rep Moran, James P. (D-VA). Latest MajorAction: 5/1/2002 Referred to House committee. Latest Status: Referredto the Committee on Transportation and Infrastructure, and in additionto the Committees on the Judiciary, and Science, for a period to besubsequently determined by the Speaker, in each case for considerationof such provisions as fall within the jurisdiction of the committeeconcerned. Committees: House Transportation and Infrastructure; HouseJudiciary; House Science.

H.R.4640 To provide criminal penalties for providing false informationin registering a domain name on the Internet. Sponsor: Rep Coble,
Howard (R-NC). Latest Major Action: 5/2/2002 Referred to Housecommittee. Latest Status: Referred to the House Committee on theJudiciary. Committees: House Judiciary.

H.R.4650 Aviation Biometric Badge Act. To amend title 49, UnitedStates Code, to improve airport security by using biometric securitybadges, and for other purposes. Sponsor: Rep Hefley, Joel (R-CO).
Latest Major Action: 5/2/2002 Referred to House committee. LatestStatus: Referred to the House Committee on Transportation andInfrastructure. Committees: House Transportation and Infrastructure.

H.R.4678 Consumer Privacy Protection Act of 2002. To protect andenhance consumer privacy, and for other purposes. Sponsor: RepStearns, Cliff (R-FL). Latest Major Action: 5/8/2002 Referred to Housecommittee. Latest Status: Referred to the Committee on Energy andCommerce, and in addition to the Committee on International Relations,
for a period to be subsequently determined by the Speaker, in eachcase for consideration of such provisions as fall within thejurisdiction of the committee concerned. Committees: House Energy andCommerce; House International Relations.


S.2137 Family Privacy and Security Act of 2002. A bill to facilitatethe protection of minors using the Internet from material that isharmful to minors, and for other purposes. Sponsor: Sen Landrieu, MaryL. (D-LA). Latest Major Action: 4/16/2002 Referred to Senatecommittee. Latest Status: Read twice and referred to the Committee onCommerce, Science, and Transportation. Committees: Senate Commerce,
Science, and Transportation.

S.2201 Online Privacy Protection Act. A bill to protect the onlineprivacy of individuals who use the Internet. Sponsor: Sen Hollings,
Ernest F. (D-SC). Latest Major Action: 4/25/2002 Senate committee/
subcommittee actions. Latest Status: Committee on Commerce, Science,
and Transportation. Hearings held. Committees: Senate Commerce,
Science, and Transportation.

S.2238 Private Security Officer Employment Standards Act of 2002. Abill to permit reviews of criminal records of applicants for privatesecurity officer employment. Sponsor: Sen Levin, Carl (D-MI). LatestMajor Action: 4/24/2002 Referred to Senate committee. Latest Status:
Read twice and referred to the Committee on the Judiciary. (text ofmeasure as introduced: CR S3307-3308) Committees: Senate Judiciary.

S.2395 Anticounterfeiting Amendments of 2002. A bill to prevent andpunish counterfeiting and copyright piracy, and for other purposes.
Sponsor: Sen Biden Jr., Joseph R. (D-DE). Latest Major Action:
4/30/2002 Referred to Senate committee. Latest Status: Read twice andreferred to the Committee on the Judiciary. (text of measure asintroduced: CR S3562-3563) Committees: Senate Judiciary.

S.2452 National Homeland Security and Combating Terrorism Act of 2002.
A bill to establish the Department of National Homeland Security andthe National Office for Combating Terrorism. Sponsor: Sen Lieberman,
Joseph I. (D-CT). Latest Major Action: 5/2/2002 Referred to Senatecommittee. Latest Status: Read twice and referred to the Committee onGovernmental Affairs. (text of measure as introduced: CR S3875-3880)
Committees: Senate Governmental Affairs.

S.2459 To provide for a terrorist identification classificationsystem, and for other purposes. A bill to provide for a terroristidentification classification system, and for other purposes. Sponsor:
Sen Wyden, Ron (D-OR). Latest Major Action: 5/6/2002 Referred toSenate committee. Latest Status: Read twice and referred to theCommittee on Intelligence. Committees: Senate Intelligence.

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

[7] EPIC Bookstore - The First Amendment and Civil Liability

The First Amendment and Civil Liability, by Robert M. O'Neil.

With increasing frequency, publishers (including owners of Web sites)
are being hailed into court to answer for the content of theirpublications. Plaintiffs' lawyers are meeting with more success inasserting creative tort theories that, until just a few years ago,
seemed unfathomable. First Amendment scholar Robert O'Neil shows howthese civil liability theories are fundamentally contrary to torttheory and free speech principles. In doing so, however, O'Neil doesnot simply repeat First Amendment mantras; he maintains an academicperspective and sympathetic posture to plaintiffs' claims, whichbrings this eminently readable book even greater credibility.

O'Neil focuses on certain troubling portents for continued freeexpression in the U.S., lending his perspective on court casesinvoking civil liability for publications like Natural Born Killers,
the Hit Man manual, and the Nuremberg Files Web site. O'Neil looks atseven areas where free expression is now at risk for incurring civilliability: general libel, libel on the Internet, privacy, defective ordangerous products, incitement, advertising, news-gathering, andthreats/incitement on the Internet. Exploring recent cases, O'Neillooks backward for the origin of these liability theories, evaluatesthe reception that such theories are currently receiving, and looksahead to hypothetical scenarios that might result in even more seriousrisks to free speech. Without a crystal ball, O'Neil cannot predictthe future, but his analysis helps one understand the possibilities.

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

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

O'Reilly Emerging Technology Conference. O'Reilly and Associates. May13-16, 2002. Santa Clara, CA. For more information:

Information Integrity World Summit. The Hands-On Summit to ProtectYour Organization: Overcoming Cyber-security and E-Privacy Threats.
Information Integrity. May 15-16, 2002. Washington, DC. For moreinformation:

Personal Privacy in the Digital Age: The Challenge for State and LocalGovernments. Joint Center for eGovernance. May 19-21, 2002. Arlington,
VA. For more information:

Call For Papers - June 1, 2002 (special recognition for outstandingstudent papers). 18th Annual Computer Security Applications Conference(ACSAC): Practical Solutions to Real Security Problems. AppliedComputer Security Associates. December 9-13, 2002. Las Vegas, Nevada.
For more information:

Third Annual Institute on Privacy Law. Practising Law Institute. June3-4, 2002, San Francisco, CA; June 24-25, New York, NY. For moreinformation:

Big Brother Is Watching: The Independent Policy Forum. The IndependentInstitute. June 6, 2002. Oakland, CA. For more information:

Privacy Paradox: The Gain of Security vs. Privacy's Loss. StrategicResearch Institute. June 17-18, 2002. Chicago, IL. For moreinformation:

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

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

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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.
Or you can contribute online at:

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 9.09


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