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EPIC Alert 10.05 [2003] EPICAlert 5


Volume 10.05 March 10, 2003

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

Table of Contents

[1] EPIC Obtains Total Information Awareness Contractor Documents
[2] Appeals Court Strikes Down Internet Censorship Law (Again)

[3] Supreme Court Upholds Megan's Laws, Passes on FOIA Case
[4] Disclosure of Air Travel Passenger Data Violates EU Privacy Laws
[5] EPIC Comments on Biometrics Specification, Air Travel Database
[6] National Intelligence Systems Used for Diplomatic Surveillance
[7] EPIC Bookstore: Federal Access to Info. and Privacy Legislation
[8] Upcoming Conferences and Events

[1] EPIC Obtains Total Information Awareness Contractor Documents

EPIC has obtained contractor documents for the Total InformationAwareness program following a Freedom of Information Act lawsuitagainst the Defense Department. EPIC v. Department of Defense, No.
02-1233 (D.D.C. 2002). This is the first release of documents underthis request. EPIC anticipates the receipt of further documentscovering various aspects of DARPA's data mining activities and theTotal Information Awareness program over the next few months. EPICwill make these documents available as they are received.

The first batch of documents are letters concerning contracts awardedto various companies that submitted projects for grants under DARPA'ssolicitation notice, BAA-02-08, which was published on March 21, 2002.
The letters, signed by Admiral John Poindexter, state either approvalor rejection of each research project, and provide information oncontractors, project titles, and if approved, the government contactfor the project. A separate set of documents show how much fundingcertain proposals received. Of the 180, there are 26 approvalletters, and there is currently budget information available on 15contracts. The list of contractors who sought funding range fromlarge corporations, including Lockheed Martin and Raytheon, to smalltechnology start-ups and large research universities.

According to the Defense Department notice, the main focus of theTotal Information Awareness program is to build "usable tools, ratherthan demonstrations." The notice states that "[t]he idea is to enableour partners in the intelligence community to evaluate new technologyand pick it up for experimental use and transition, as appropriate."
The government contacts listed in the letters indicate potential usersor developers of the technology. The contacts are from three branchesof the Defense Department: the Air Force Research Laboratory, theNavy's Space and Naval Warfare Systems (SPAWAR), and DARPA InformationAwareness Office itself. In addition, funding for three approvedprojects comes from the Information Exploitation Office of DARPA. TheAir Force Research Laboratory's "Information Directorate" based inRome, NY was developing elements of Total Information Awarenesstechnology under Douglas Dyer, who has now moved to DARPA and is alsothe author of BAA-02-08. The Navy's SPAWAR program also appearsinterested in developing large-scale repository and data miningcapabilities. It is not clear how these technologies might be usefulfor the Air Force and Navy in their respective "battlespaces," or whythey are funding the development of domestic surveillanceinfrastructure.

Total Information Awareness contractor data is available at:

An analysis of the contractor letters and data is available at:

EPIC's Total Information Awareness page:

[2] Appeals Court Strikes Down Internet Censorship Law (Again)

The U.S. Court of Appeals for the Third Circuit has, for the secondtime, ruled that the Child Online Protection Act (COPA) isunconstitutional. In a decision issued on March 6, the court foundthat the law violates the First Amendment because it improperlyrestricts access to a substantial amount of online speech that islawful for adults to receive. The decision follows a Supreme Courtdecision issued in May 2002 that sent the case back to the appealscourt, which had previously ruled that COPA was unconstitutional.

COPA, signed into law in October 1998, makes it a federal crime to usethe Internet to communicate "for commercial purposes" materialconsidered "harmful to minors," with penalties of up to $150,000 foreach day of violation and up to six months in prison. Civil libertiesgroups, including the American Civil Liberties Union and EPIC,
challenged the law shortly after its passage, arguing that COPAviolates the First Amendment. In February 1999, the federal districtcourt in Philadelphia issued an injunction preventing the governmentfrom enforcing COPA. The Third Circuit Court of Appeals affirmed inJune 2000, but the Supreme Court questioned the validity of the onlyconclusion reached by the appellate court -- that COPA's reliance on"community standards" renders the law unconstitutional.

Compliance with COPA would require Web sites to obtain identificationand age verification from visitors, a feature of the law that EPIC hasargued threatens online privacy and anonymity. In its new decision,
the appeals court specifically addressed this issue:

We agree . . . that COPA will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial. People may fear to transmit their personal information, and may also fear that their personal,
identifying information will be collected and stored in the records of various Web sites or providers of adult identification numbers.

The Supreme Court has disapproved of content-based restrictions that require recipients to identify themselves affirmatively before being granted access to disfavored speech, because such restrictions can have an impermissible chilling effect on those would-be recipients.

It is likely that the Justice Department will again seek Supreme Courtreview of the case.

The Third Circuit decision is available at:

EPIC's COPA Litigation Page:

[3] Supreme Court Upholds Megan's Laws, Passes on FOIA Case

The Supreme Court ruled on March 5 that the Alaska Megan's Lawstatute, which requires sex offenders to have their pictures andaddresses put on the Internet, does not violate the Ex Post Factoclause of the Constitution (even though it was retroactively applied)
because the statute is a non-punitive civil regulation. EPIC filed anamicus curiae brief, arguing that the mandatory online disseminationof sex offender information is excessive when weighed against thestatutory purpose of protecting people in the geographic vicinity ofreleased offenders, and therefore unconstitutional. Justice Kennedy,
writing for a five-member majority in Smith v. Doe, held that thepurpose of the statute was to inform the public and also that it wasnon-punitive. In response to the claim that the online disseminationexceeded the statutory purpose, Justice Kennedy wrote:

The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender.
Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.

The State's Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety's Web site, proceed to the sex offender registry,
and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska's citizenry.

Justice Souter filed a concurring opinion. Justice Stevens andJustice Ginsburg, joined by Justice Breyer, wrote dissenting opinions.
Justice Stevens said:

The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information -- including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment -- at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life.
Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities.
Much of this registration information is placed on the Internet. In Alaska, the registrant's face appears on a webpage under the label "Registered Sex Offender." His physical description, street address, employer address,
and conviction information are also displayed on this page.

Justice Ginsburg wrote:

I would hold Alaska's Act punitive in effect. Beyond doubt,
the Act involves an "affirmative disability or restraint."
As Justice Stevens and Justice Souter spell out, Alaska's Act imposes onerous and intrusive obligations on convicted sex offenders; and it exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism. . . .

In a related case, Connecticut Dept. of Public Safety v. Doe, theCourt unanimously held that inclusion in a public sex offenderregistry, without a separate hearing on the offender's risk to thecommunity, does not violate the Due Process Clause of theConstitution.

In a separate matter, the Supreme Court has decided not to consider apending case that pitted gun owner privacy interests against thepublic's right to know. The Court was scheduled to hear oralarguments in Department of Justice v. City of Chicago on March 4, buthas sent the case back to the lower court to consider the effect of arecently enacted legislative provision that prohibits the Bureau ofAlcohol, Tobacco and Firearms from expending funds to disclose recordsconcerning gun ownership. The records had been sought by the City ofChicago in a case concerning civil liability for gun manufactures.
EPIC filed an amicus brief in the case arguing that, through the useof technology, the government could encode personal information beforereleasing it, thereby permitting public access to records in thegovernment's permission while still protecting individual privacyrights. The EPIC brief was joined by 16 legal scholars and technicalexperts.

Smith v. Doe, No. 01-729 (U.S., March 5, 2003):

Brief of Amicus Curiae EPIC, Smith v. Doe:

Connecticut Department of Public Safety v. Doe, No. 01-1231 (U.S.,
March 5, 2003):

EPIC's page on Sex Offender Registries:

Brief of Amicus Curiae EPIC, Dept. of Justice v. Chicago:

[4] Disclosure of Air Travel Passenger Data Violates EU Privacy Laws

Due to an interim arrangement enacted on March 5 between the EuropeanCommission and the United States Customs Department, European airlinesare now required to provide U.S. Customs with full access to theirpassenger data. As outlined in the EU-U.S. joint statement ofFebruary 17-18, U.S. Customs will now be able to request all passengerdata stored by European airlines. The transfer of data is notrestricted to name, address or flight number; it also covers all otherdata collected about passengers, such as credit card number, etc. Thisincludes sensitive and potentially stigmatic data, such as mealchoice, which might reveal medical problems, ethnicity, or religion,
for example. The U.S. is even considering requiring the collection ofbiometric data from European citizens who participate in the VisaWaiver program (which applies to most European citizens, providingthem with a visa issued by U.S. Customs when they first enter a U.S.
airport). Customs could therefore potentially require Europeancitizens to provide their fingerprints in order to enter the UnitedStates.

In exchange for the United States' promise to safeguard the privacy ofEuropean Citizens, the European Commission urged data protectionauthorities of European member states not to intervene when Europeanairlines provide US Customs with the requested data. EPIC argues thatthese requests violate European privacy laws. Since the requestsinvolve systematic collection of data from all passengers, they areexcessive. Collected data might be forwarded to any federal or locallaw enforcement agency for several different purposes, not restrictedto combating terrorism. The United States' promises of safeguardingthe data are vague, and therefore weak. There is no supervisory bodyto oversee these safeguards, and European airline companies will beforced to act like law enforcement agencies. Further, even the legalbasis for this arrangement is not backed by European Law.

For more information, see EPIC's new Web page on Surveillance ofEuropean Air Travelers:

EPIC's Air Travel Privacy page:

[5] EPIC Comments on Biometrics Specification, Air Travel Database

On February 28, EPIC submitted comments on the Organization for theAdvancement of Structured Information Standards (OASIS) XML CommonBiometric Format (XCBF) 1.0 Committee Specification. Biometricsentail automated methods of recognizing a person based onphysiological or behavioral characteristics and measurements, and areused to recognize the identity of an individual or to verify a claimedidentity. XCBF offers a standard XML schema for biometrics, whichdescribes information that verifies identity based on unique humancharacteristics, including fingerprints, iris scans, hand geometry,
and DNA.

Drawing a distinction between security and privacy, EPIC's commentsstated that while the specification may respect security standards, itcannot be fairly or accurately described as respecting privacy.
Technologies or protocols that respect privacy assist in minimizing oreliminating the collection of personally identifiable information.
Technologies that respect security may prevent unauthorized partiesfrom gaining access to protected data, but the OASIS specificationsays nothing about the how the information will be used or whetherauthorized parties will use information in a way that is detrimentalto the interests of the data subject. EPIC underscored thattechniques that enable the collection of personally identifiableinformation in the absence of enforceable legal rights or technicalsafeguards necessarily create a new risk that personal informationwill be misused. Because standardization of biometric data inmachine-readable format makes massive and efficient automated dataaggregation techniques much simpler, EPIC recommended further researchinto implementing privacy safeguards within the protocol.

EPIC also recently submitted comments to the National Highway TrafficSafety Administration (NHTSA) regarding their role in the developmentand installation of Event Data Recorders (EDRs), or "black boxes," inmotor vehicles. Event data recorders (EDRs) are electronic "blackboxes" that collect and store information about the operation of amotor vehicle. The data recorded might include the date, time,
velocity, direction, number of occupants, airbag data, and seat beltuse. The devices might even include location data, which raisesadditional significant privacy issues. In addition, there are openquestions about how the data can be accessed, recorded andtransmitted. There are several different types of EDRs in the market,
ranging from the Vetronix system, which is installed in cars producedby General Motors, to the more elaborate MacBox system currently beingtested by the Drive Atlanta project at the Georgia Institute ofTechnology. Each type of device collects different kinds of data fordifferent purposes. Advocates of EDR technology suggest that theinformation might be useful in accident reconstruction and developingsafer vehicles through "real world" testing. Insurance companies wantthe data to settle claims expeditiously. These companies, along withcar rental agencies and others, have also demonstrated interest inobtaining this data in support of efforts to control driving behaviorthrough surveillance.

EPIC's comments, submitted on February 24, recommended that thecollection of driving-related information through EDRs must followFair Information Practices, and that the NHTSA must under nocircumstances mandate the use of EDRs without a framework of strongprivacy safeguards. The privacy issue concerns not just who "owns,"
i.e. controls, the use of the data (which should be the operator ofthe vehicle), but the entire set of information practices, includinghow the data is collected, processed, transmitted and stored. TheOrganization for Economic Cooperation and Development developed robustprivacy guidelines in 1980, which have been adopted by severalcountries, government agencies, and corporations. These guidelinesprovide an effective framework for addressing the privacy issuessurrounding automobile black boxes, as they provide strong,
technology-neutral privacy rules. A strong privacy framework mightfurther any public safety interests that the agency has in EDRtechnology, by promoting adoption of the technology by drivers who donot feel that the presence of these monitoring devices is a risk. Thecomments encouraged the agency to engage in further public discussionsto develop a Fair Information Practices framework covering the use ofautomobile black boxes.

OASIS XML Common Biometric Format 1.0 Committee Specification:

EPIC's comments on the specification:

For more information on biometrics, see EPIC's Biometrics page:

EPIC's comments on Event Data Recorders:

NHTSA Docket 2002-13546, Request for Comments:

[6] National Intelligence Systems Used for Diplomatic Surveillance

According to a leaked January 31 National Security Agency (NSA) e-mailmemorandum sent to Britain's Government Communications Headquarters(GCHQ), the NSA's chief of staff of Regional Targeting, Frank Koza,
requested the British to supplement NSA's electronic surveillancecoverage of the communications of the UN missions of UN SecurityCouncil members and other nations. The memorandum, which was obtainedby The Observer newspaper, stated the NSA was particularly interestedin an intelligence "surge" directed against the communications ofAngola, Cameroon, Chile, Bulgaria and Guinea, with an "extra focus"
exerted on Pakistan. In addition to members of the Security Council,
the NSA memo states, "We have a lot of special UN-related diplomaticcoverage (various UN delegations) from countries not sitting on theUNSC right now that could contribute related perspectives/insights/
whatever. We recognize that we can't afford to ignore this possiblesource."

On March 9, it was reported that a 28-year old GCHQ employee wasarrested last week for violating the Official Secrets Act. Under theAct, the leaker or leakers involved with providing The Observer withthe classified memorandum can be charged, as well as the newspaper andits reporters for publishing the document.

Although NSA surveillance of foreign communications and diplomaticmissions in the United States violate neither the NSA charter or theForeign Intelligence Surveillance Act, such a concentrated effortdirected against the United Nations, its missions, and the homes ofits diplomats could violate the Vienna Convention on DiplomaticRelations, which stipulates "the official correspondence of themission shall be inviolable."

The memo and coverage from The Observer are available online at:,12239,905936,00.html

"UN launches investigation into US spying on envoys," Taipei Times(The Observer), March 10, 2003:

"No Comment From U.S. on 'Dirty Tricks' Report," Newsday, March 4,

EPIC's Foreign Intelligence Surveillance Act page:

[7] EPIC Bookstore: Federal Access to Info. and Privacy Legislation

"Federal Access to Information and Privacy Legislation Annotated2003," by Colonel Michel W. Drapeau and Marc-Aurèle Racicot (ThomsonCarswell 2003).

This new publication on the Canadian privacy and access laws providesan extraordinarily useful compendium of key materials for thoseinterested in these key Canadian statutes. The book includes thelegislative history, text, and extensive annotations for the Access toInformation Act, the Privacy Act and the recently enacted PersonalInformation and Electronic Document Act. The case histories,
particularly for the Access to Information Act, are extensive.

The historical discussion papers on the development of the Canadianaccess law offer an important understanding on the development of thiskey statute. The forewords by Justice Clair l'Heureux-Dubé of theSupreme Court of Canada and John Grace, Canada's first PrivacyCommissioner, provide further insight into the significance of privacyand open government rights in Canada.

The book also provides a useful citizen's guide to use of the accesslegislation that incorporates practical suggestions for making use ofthe Canadian access law. The text includes many useful referencestools, such as a detailed table of contents, table of case, summariesof key provisions in the Access to Information Act and privacy Act,
and contact information for the Department of Access to Informationand Privacy Commissioners.

This is the most comprehensive reference work to date on Canadianaccess and privacy law.

- Marc Rotenberg

EPIC Publications:

"The Privacy Law Sourcebook 2002: United States Law, InternationalLaw, and Recent Developments," Marc Rotenberg, editor (EPIC 2002).
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.

"FOIA 2002: Litigation Under the Federal Open Government Laws," HarryHammitt, David Sobel and Mark Zaid, editors (EPIC 2002). Price: $40.

This is the standard reference work covering all aspects of theFreedom of Information Act, the Privacy Act, the Government in theSunshine Act, and the Federal Advisory Committee Act. The 21stedition fully updates the manual that lawyers, journalists andresearchers have relied on for more than 25 years. For those wholitigate open government cases (or need to learn how to litigatethem), this is an essential reference manual.

"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.

"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

** Uniting Privacy and the First Amendment in the 21st Century **

May 9-10, 2003Oakland, CA
EPIC, the First Amendment Project, and the California Office ofPrivacy Protection are sponsoring this activist symposium designed toexplore the interplay between privacy and First Amendment rights, withthe goal of developing strategies for optimizing both.

If you are interested in making a presentation or leading a WorkingGroup, please submit a letter outlining your proposed presentation andincluding a brief explanation of the issue to be addressed, a list ofpossible presenters, and the desired outcome of the session to:

For more information:

Identity Theft: Current Enforcement and Prevention Efforts. New YorkCity Bar Association, Committee on Consumer Affairs. March 12, 2003.
New York, NY. For more information: <>

P&AB's Privacy Practitioners' Workshop and Ninth Annual NationalConference. Privacy & American Business. March 12-14, 2003.
Washington, DC. For more information:

Big Brother Technologies. A Choices and Challenges Forum. Center forInterdisciplinary Studies, Virginia Polytechnic Institute and StateUniversity. March 27, 2003. Blacksburg, VA. For more information:

Symposium on Security, Technology, and Individual Rights: theconvergence of our history, our ideals, and our innovative spirit.
Georgetown Journal of Law and Public Policy. March 27-28, 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:

28th Annual AAAS Colloquium on Science and Technology Policy. AmericanAssociation for the Advancement of Science. April 10-11, 2003.
Washington, DC. For more information:

Integrating Government With New Technologies '03: E-Government, Changeand Information Democracy. Riley Information Services. April 11, 2003.
Ottawa, Canada. For more information:

RSA Conference 2003. RSA Security. April 13-17, 2003. San Francisco,
CA. For more information:

**POSTPONED UNTIL MID-JUNE.** Building the Information Commonwealth:
Information Technologies and Prospects for Development of CivilSociety Institutions in the Countries of the Commonwealth ofIndependent States. Interparliamentary Assembly of the Member Statesof the Commonwealth of Independent States (IPA). April 22-24, 2003.
St. Petersburg, Russia. For more information:

O'Reilly Emerging Technology Conference. April 22-25, 2003. SantaClara, CA. For more information:

Mid Canada Information Security Conference. Information ProtectionAssociation of Manitoba. April 30, 2003. Winnipeg, Manitoba, Canada.
For more information:

Little Sister 2003: Community Resistance, Security, Law andTechnology. May 9-11, 2003. Vancouver, British Columbia, Canada. Formore information:

Technologies for Protecting Personal Information. Federal TradeCommission. Workshop 1: The Consumer Experience. May 14, 2003.
Workshop 2: The Business Experience. June 4, 2003. Washington, DC. Formore information:

O'Reilly Open Source Convention. July 7-11, 2003. Portland, OR. Formore information:

Privacy2003. Technology Policy Group. September 30 - October 2, 2003.
Columbus, 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.
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** Receive a free Observing Surveillance conference poster withdonation 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 10.05


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