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EPIC Alert 11.01 [2004] EPICAlert 1


Volume 11.01 January 14, 2004

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

Table of Contents

[1] US-VISIT Launched; U.S. Pushes for Passenger Info
[2] Defense Department Report Blasts Total Information Awareness
[3] Judge Sides With EPIC on FOIA Quick Review, But Rules for DOJ
[4] FOIA Document Covers Palladium Privacy, Unique Identifier Issues
[5] Officials Question DC Police Handling of Political Demonstrations
[6] News in Brief
[7] EPIC Bookstore: The Naked Crowd
[8] Upcoming Conferences and Events

[1] US-VISIT Launched; U.S. Pushes for Passenger Info

The United States Visitor and Immigrant Status Indicator Technology(US-VISIT) has been launched at 115 airports and 14 seaports in theUnited States. The program, which draws on the resources of more thantwenty existing information systems and databases, comparesfingerprints and digital photographs of foreign nationals entering thecountry with biometric, biographical, and travel data to determinewhether the visitor should be allowed into the United States.
US-VISIT, which is scheduled to be implemented at all ports of entryby the end of 2005, has invoked international resentment and caused ajudge in Brazil to order the retaliatory fingerprinting andphotographing of U.S. citizens traveling to that country.

The Department of Homeland Security (DHS) has scrambled to develop anddeploy US-VISIT on the timeline set by Congress, issuing a privacyimpact assessment (PIA) just days before US-VISIT started collectingbiometric identifiers from visitors. Agencies are required by law tocomplete a PIA before developing new information technology that willcollect or store personal information electronically, so that privacyprotections are considered from the project's beginning. Senator JoeLieberman (D-CT) criticized the late issuance of US-VISIT's PIA,
noting "[a]fter hundreds of millions of dollars have been invested inthe deployment of the next phase of US-VISIT, it seems highly unlikelythat agency officials would reconsider the system's design orconfiguration, on the eve of deployment."

EPIC recently filed comments in response to DHS's announcement that itwill collect biometric and biographic information in the ArrivalDeparture Information System (ADIS), one of US-VISIT's componentsystems. EPIC argued that DHS should not exempt ADIS from Privacy Actrequirements merely because of its use in US-VISIT because the PrivacyAct protects only individuals who are not affected by US-VISIT. EPICalso urged DHS to reduce its proposed 100-year data retention periodand comply with international privacy standards governing thecollection and use of personal information.

US-VISIT's deployment comes just a month after EPIC analyzed theprogram's possible uses in a "friend of the court" brief submitted inHiibel v. Nevada, a case in which the U.S. Supreme Court willdetermine whether an individual may refuse to identify himself topolice when there is no legal basis for an arrest. The briefidentified US-VISIT as a system that may potentially be used by lawenforcement to engage in public surveillance. The Supreme Court willhear oral argument in the case on March 22.

For more information on US-VISIT, see EPIC's US-VISIT Page:

DHS's Privacy Impact Assessment for US-VISIT is available at:

EPIC's Comments on ADIS are available at:

EPIC's amicus brief in Hiibel v. Nevada is available at:

For more information about the case, see EPIC's Hiibel v. Nevada Page:

[2] Defense Department Report Blasts Total Information Awareness

Citing lack of foresight and the possibility of governmental abuse ofpower, the Department of Defense's Inspector General has released areport criticizing the agency's failure to consider privacy concernswhen developing the Total Information Awareness (TIA) system.

Initiated in 2002, TIA (later called Terrorism Information Awareness)
was designed to integrate information systems in order to search andanalyze vast quantities of data for indications of terrorist activity.
TIA was also intended for eventual use by domestic law enforcement.
The total budget for TIA and its 15 component programs was over half abillion dollars. Congress and the public repeatedly expressed concernabout TIA, particularly with respect to privacy. The report notesthat in February 2003 Congress stopped funding for TIA until thePentagon "could prove that the program does not violate privacyrights." Funding for all but three of TIA's components was ultimatelyeliminated in September 2003.

Noting that TIA was being transitioned into the operationalenvironment as it was being developed, the report criticizes theagency for, among other things: failing to conduct a privacy impactassessment (PIA); initially providing limited oversight over TIAdevelopment; and failing to ensure that the agency's policy, privacyand legal experts were involved. The report concludes that theagency's failure to formally assess privacy implications for U.S.
citizens means the Pentagon "risks spending funds to develop systemsthat may be neither deployable nor used to their fullest potentialwithout costly revisions and retrofits." The report recommends that aPIA be conducted "before TIA type technology research continues" andthat a privacy official be appointed to scrutinize the development ofTIA-type technologies from a privacy perspective.

Although TIA has mostly been scrapped, this report is significantbecause it suggests that a PIA should be completed for all TIA-typetechnology even if no firm requirement mandates it. In addition, thereport speaks not just to TIA but also to the development of futureTIA-type technologies. For that reason, it may help ensure thatappropriate experts are involved in future projects and that privacy,
policy, legal and protective measures are addressed during futureTIA-type development.

The DOD Inspector General's Report is available at:

For more information, see EPIC's Total Information Awareness page:

[3] Judge Sides With EPIC on FOIA Quick Review, But Rules for DOJ

A federal district court has ruled that EPIC properly filed suitagainst the Department of Justice (DOJ) without first asking theagency to reconsider its decision not to "expedite" review of aFreedom of Information Act (FOIA) request. However, the courtdeclined to order DOJ to expedite the release documents about theefforts of federal prosecutors to oppose legislative revisions to thecontroversial USA PATRIOT Act.

In August, DOJ issued a memorandum urging all U.S. Attorneys "to callpersonally or meet with . . . congressional representatives" to talkover "the potentially deleterious effects" of denying funding fordelayed notification warrants. EPIC requested information about thememorandum from DOJ. EPIC also asked that its request be processedquickly, noting that the memorandum received substantial mediacoverage and raised serious questions about the propriety of theprosecutors' lobbying efforts. DOJ refused to expedite processing,
and EPIC filed suit in October.

EPIC argued that it was entitled to sue DOJ after the agency refusedto expedite processing, and that EPIC did not have to file anadministrative appeal of DOJ's decision before going to court. EPICalso asserted that DOJ should be ordered to turn over the documentsimmediately because there was an urgency to inform the public aboutthem, and because members of Congress and the media had questioned theappropriateness of the government's lobbying efforts in favor of theUSA PATRIOT Act.

DOJ countered with the claim that the court had no authority toconsider EPIC's complaint, because EPIC had not asked the Departmentto reconsider its decision before filing suit. The agency also arguedthat media coverage of the memorandum was insubstantial and that thememorandum raised no questions about the government's integrity.

Judge James Robertson agreed that EPIC could file suit when itsrequest for expedited processing was denied, and did not first have toask the agency to reconsider. However, he determined that there wasno urgency to inform the public about the requested documents, norenough media interest shown in the subject matter to warrant expeditedprecessing.

The court's ruling is available at:

EPIC's memorandum in support of its motion for a preliminaryinjunction is available at:

For background information, see EPIC's USA PATRIOT Act page:

[4] FOIA Document Covers Palladium Privacy, Unique Identifier Issues

EPIC has obtained a document concerning Microsoft Palladium from theNational Institute of Standards and Technology (NIST) under theFreedom of Information Act. The document, a 32-page presentation thatbears a 2002 copyright mark, was apparently given by Michael Aday, asenior program manager at Microsoft. Palladium, which is currentlynamed the "Next Generation Secure Computing Base," is one variant of"Trusted Computing," a set of operating system technologies beingdeveloped primarily by Microsoft, AMD, Intel, IBM, and HP. Thetechnology has profound implications for privacy and for altering thebalance of power among computer users, media companies, and softwareprogrammers.

While Microsoft has attempted to pitch Palladium as a tool forprotecting individuals' privacy, as the presentation makes clear, thetechnology could establish an infrastructure of unique useridentification and tracking. A slide on "Policy Issues" reads inpart: "Since the Pd (Palladium) RSA key pair is unique to theplatform, what steps should we take to defend against traffic analysisof user behavior?" The next reads: "The Issue: Palladium uses atleast two sets of unique hardware keys . . . Essentially equivalent tounique machine identifiers."

Trusted Computing does present some opportunity for greater computerprivacy and security. For instance, the technology could improveencryption key storage, it would provide for a more secure bootprocess, and reduce the risk that keyloggers or other devices couldintercept passwords or communications. However, the potential forcontrol of computer users cannot be underestimated. Generally, itwill reduce user control over the computer, resulting in softwareprogrammers being able to force upgrades, control which applicationsare approved to handle media, or even erase pirated content orapplications. Depending on its implementation, the technology couldeliminate online anonymity. It also could serve as the starting pointfor ubiquitous Digital Rights Management technologies.

As Professor Ross Anderson has noted, Trusted Computing "will be moretrustworthy from the point of view of software vendors and the contentindustry, but will be less trustworthy from the point of view of theirowners. In effect, the TCG specification will transfer the ultimatecontrol of your PC from you to whoever wrote the software it happensto be running."

NIST Palladium Presentation:

EPIC Palladium / Next Generation Secure Computing Base Page:

Ross Anderson's Trusted Computing FAQ:

[5] Officials Question DC Police Handling of Political Demonstrations

On December 17 and 18, 2003, the City Council of the District ofColumbia held hearings to examine the policies and practices of theMetropolitan Police Department regarding demonstrations within theDistrict. The hearings were largely focused on police actions atanti-globalization and anti-war demonstrations in April 2000 andSeptember 2002. The Council questioned the police over numerousaccusations filed against the department including unprovoked assault,
wrongful arrest, infiltration of protestor planning meetings andincitement of protestors to violence. Police Chief Charles H. Ramseyadmitted that his department wasn't perfect and that it had mademistakes in its handling of demonstrations. However, Ramsey largelydefended his department's actions, including sending undercover policeofficers to attend protestor planning meetings without any guidelinesin place regarding such activities.

EPIC sent a letter to Council Chairperson Kathy Patterson, supportingthe Council's investigation and urging the Council to also considerthe surveillance of protester activity and the maintenance ofelectronic databases on protestors. EPIC testified before the Councilin the summer of 2002 on the risks that surveillance poses toconstitutionally protected activity. The current letter to the DCCouncil cites a number of examples of police surveillance at politicalprotests in Washington and elsewhere. Police are increasinglygathering information and creating criminal intelligence files withoutany reasonable suspicion of criminal activity. This conduct will onlyserve to inhibit protesters from exercising their constitutionalrights. Until strict safeguards are implemented for surveillance anddata collection at demonstrations, the freedom of expression ofprotestors, tourists, and D.C. residents will remain at risk.

The Council is expected to issue a report of its investigation inearly 2004.

The prepared statement of Charles H. Ramsey, Chief of Police, December18, 2003 is available at:

For more information about free expression rights, see EPIC'sProtester Privacy Page:

EPIC's Observing Surveillance Page:

[6] News in Brief

The U.S. Supreme Court refused to hear a challenge to the government'srefusal to release the names of more than 700 people who were detainedafter the September 11 terrorist attacks, most of whom have been sincedeported. The case, Center for National Security, et al. v. DOJ, wasbrought by several plaintiffs, including EPIC, when the governmentrefused to release the identities in response to a Freedom ofInformation Act request submitted by a broad coalition of civilliberties and human rights groups.

The Supreme Court docket for Center for National Security v. DOJ isavailable at:

This week, in a 6-3 ruling, the U.S. Supreme Court held that policeroadblocks are permissible when their purpose is to seek informationregarding criminal activity. A man had challenged the police'sability to set up roadblocks when he was arrested for intoxicationwhile stopped at a roadblock created to gather tips about a recenthit-and-run. The case, Illinois v. Lidster, is the latest developmentin the legal status of roadblocks. In 2000, the Court held thatroadblocks for drug searches violated motorists' Fourth Amendmentright of privacy.

The Supreme Court docket for Illinois v. Lidster is available at:

The Internal Revenue Service (IRS) announced that it will useelectronic flags to identify taxpayers filing through Free File, anIRS effort with private companies to provide free electronic taxfiling to taxpayers. According to IRS Director of Electronic TaxAdministration Terry Lutes, the identification of Free File taxpayersis essential to measuring the effectiveness of the Free File programand marketing, in its second year. The Free File program is part ofan IRS effort to increase electronic filing among taxpayers. However,
the tax software providers in the Free File program have stronglycriticized the flagging of Free File taxpayers. Intuit, publisher ofTurboTax, has stated that its software will not identify Free Fileusers. TaxBrain, another Free File provider, has announced plans towithdraw from the Free File program. H & R Block, while remainingwithin the Free File program, has concerns about the identification,
according to H & R Block Vice President Mark Ciaramitaro.

IRS Free File Page:,,id=118986,00.html

For more information about the IRS, see the EPIC IRS Page:

EPIC's Letter to the Department of Treasury warning of misuse ofpersonal filing information by Free File companies is available at:

A report released last week by the Fairfax County, Virginia RepublicanParty strongly criticized the use of touch screen "e-voting" system inlast November's local elections. The report declared that the newvoting machines were "a failure" and that local officials lackedproper recovery policies, citing technical and procedural problemsdescribed in numerous accounts from both precinct workers and voters.
The report further called for state regulations to guide localelection boards. The November 2003 election was the first whereFairfax County used new touch screen voting machines made by AdvancedVoting Solutions. Nearly 1000 of these touch screen machines werepurchased last year by Fairfax County for $3.5 million.

National Committee for Voting Integrity:

Verified Voting Coalition

For more information about electronic voting, see EPIC's Voting Page:

Democratic presidential hopeful Joe Lieberman has vowed to introducenew protections for personal privacy and to break the "Bush Wall ofSecrecy" in the federal government. Comparing President Bush to theNixon administration, Lieberman blamed Bush for "failing to safeguardinformation that ought to stay private while keeping secretinformation that ought to be public." Lieberman's plan includes theestablishment of a high-level Electronic Privacy Task Force andprotections regarding identity theft, financial information, socialsecurity numbers, medical information and information about children.
With respect to government information, Lieberman's plan includes areversal of Attorney General Ashcroft's memorandum restricting therelease of information by agencies under the Freedom of InformationAct.

Sen. Lieberman's Plan To Protect Personal Privacy And Break The BushWall Of Secrecy is available at:

[7] EPIC Bookstore: The Naked Crowd

The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age,
by Jeffrey Rosen (Random House 2004)

In the weeks and months following 9-11, the public accepted many newincursions into personal privacy. Airline passengers removed theirshoes and stood arms outspread as uniformed officials peered throughtheir carry-on baggage. The Department of Homeland Security proposedto color code all passengers based on the likelihood that they mightcommit a terrorist act. Banks asked new customers to provide detailedinformation that would be promptly transferred to federalinvestigators. This year, visitors entering the United States fromother countries are fingerprinted and photographed. And thebiometrics now being obtained from non-U.S. citizens will soon berequired of U.S. citizens.

Whether any of these measures has actually made the country safer isnot an easy question to answer. The government's desire forinformation about the public seems matched only by its own excessiveclaims of secrecy. But what does seem clear is the willingness of thepublic, at least in some circumstances, to allow intrusions thatbefore 9-11 would be quickly called "Orwellian" or, more precisely,
the telltale symbols of a hi-tech police state.

Jeff Rosen's new book "The Naked Crowd" is a timely and thoughtfulresponse to the challenge that the American public faces today inpreserving freedom. Although it recalls Vance Packard's popular "TheNaked Society" of the '60s, Rosen is more Tocqueville than Packard. Heis less concerned with blowing the whistle on Big Government and BigBusiness and more interested in trying to understand how Americans,
with their unique strengths and weaknesses, should best respond.

The question is whether a society enamored of reality TV and willingto post intimate personal details on a web log for thousands to viewis prepared to assert a right of privacy and to do so in a way thatreflects broad respect for the value of individuality and not simplycoarse self-interest. The answer is possibly.

Rosen looks to the Congress more than the courts as the main line ofdefense as new proposals for surveillance are set forward. Hedescribes several of the significant victories of the last few years,
including the collapse of John Poindexter's Total InformationAwareness program and the defeat of a National ID card proposal.
Though Congress did pass the badly misnamed USA PATRIOT Act, bycomparison to a deferential and timid judiciary, it has been morewilling to draw lines in the post-9-11 world.

Rosen also proposes that new technologies be developed to enhancesecurity while simultaneously safeguarding privacy. He cites theadvantages of a "blob machine" that could reveal hidden weapons on anairline passenger as compared to the "naked machine" that would revealthe nude images of all airline passengers. A blob machine wouldaccomplish the security goal without the privacy infringements.

Still, skeptics may well ask whether a public willing to express apreference for the blob machine over the naked machine will also bewilling to do the hard work of ensuring that the blob machine does notmutate. Already many of the surveillance systems upgraded since 9-11,
such as the US VISIT program, established to track entry and exit atthe border, are breaking out of their privacy chains. If US-VISIT iseventually merged with passenger profiling and other governmentdatabases, which seems to be the desire of all the stovepipe bashersin Washington, then these limited systems of surveillance will quicklycongeal. In other words, a bunch of blob machines networked togetherwill create a virtual naked machine.

Even Rosen's courageous, pragmatic, post-911 American may notunderstand what has happened until it is too late.

In the end, Jeffrey Rosen and Vance Packard are not so far apart.
Packard opened his classic with the warning from Judge Learned Handthat freedom lies in the hearts of the people. Rosen, as well,
believes a well informed public, willing to defend its freedoms, andable to assess risk and to take steps to be safe rather than simplyfeel safe is the best hope for preserving freedom after 9-11.

- 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 2003: An International Survey of Privacy Lawsand Developments" (EPIC 2002). Price: $35.

This survey, by EPIC and Privacy International, reviews the state ofprivacy in over fifty-five countries around the world. The surveyexamines a wide range of privacy issues including data protection,
passenger profiling, genetic databases, video surveillance, ID systemsand 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

WHOLES - A Multiple View of Individual Privacy in a Networked World.
Swedish Institute of Computer Science. January 30-31, 2004.
Stockholm, Sweden. For more information:

Fear: Its Political Uses And Abuses, featuring Vice President Al Goreas Keynote Speaker. Social Research Journal. February 5-7, 2003. NewYork, New York. For more information:

The New Fair Credit Reporting Act. Privacy & American Business.
February 9-10, 2004. Washington, DC. Email

O'Reilly Emerging Technology Conference. February 9-12, 2004. SanDiego, CA. For more information:

Antiterrorism and the Security Agenda: Impacts on Rights, Freedoms,
and Democracy. International Civil Liberties Monitoring Group.
February 17, 2004. Ottawa, Ontario, Canada.

IAPP 4th Annual Privacy & Security Summit & Expo. February 18-20,
2004. Washington, DC. For more information:

RSA Conference 2004 - The Art of Information Security. February23-27, 2004. San Francisco, CA. For more information:

Third Conference on Privacy and Public Access to Court Records.
Courtroom 21 Project. February 27-28, 2004. Williamsburg, VA. Formore information:

Securing Privacy in the Internet Age. Stanford Law School. March13-14, 2004. Palo Alto, CA. For more information:

CFP2004: 14th Annual Conference on Computers, Freedom, and Privacy.
Association for Computing Machinery (ACM). April 20-23, 2004.
Berkeley, CA. For more information:

2004 IEEE Symposium on Security and Privacy. IIEEE Computer SocietyTechnical Committee on Security and Privacy, in cooperation with theInternational Association for Cryptologic Research (IACR). May 9-12,
2004. Oakland, CA. For more information:

International Conference on Data Privacy and Security in a GlobalSociety. Wessex Institute. May 11-13, 2004. Skiathos, Greece. Formore information:

The Third Annual Workshop on Economics and Information Security.
University of Minnesota Digital Technology Center. May 13-14, 2004.
Minneapolis, MN. For more information:

Workshop on Privacy Enhancing Technologies. University of Toronto.
May 26-28, 2004. Toronto, Canada. For more information:

Access & Privacy Conference 2004: Sorting It Out. Government Studies,
Faculty of Extension. June 10-11, 2004. University of Alberta.
Edmonton, Alberta, Canada. For more information:

O'Reilly Open Source Convention. July 26-30, 2004. Portland, OR. Formore information:

First Conference on Email and Anti-Spam. American Association forArtificial Intelligence and IEEE Technical Committee on Security andPrivacy. July 30-31, 2004. Mountain View, CA. For more information:

Crypto 2004: The Twenty-Fourth Annual IACR Crypto Conference.
International Association for Cryptologic Research, IEEE ComputerSociety Technical Committee on Security and Privacy, and the ComputerScience Department of the University of California, Santa Barbara.
Santa Barbara, CA. August 15-19, 2004. 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 to 1718Connecticut Ave., NW, Suite 200, Washington, DC 20009. Or you cancontribute online at:

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 11.01


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