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EPIC Alert 12.01 [2005] EPICAlert 2


Volume 12.01 January 13, 2005

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

Table of Contents

[1] EPIC Testifies on RFID Uses for Health Care; Proposes Framework
[2] Landmark Privacy Bill Takes Effect in California
[3] Coalition Opposes Loophole to Do-Not-Call Registry
[4] EPIC Obtains FBI Reports to Congress on Carnivore
[5] Police Ask for DNA From Cape Cod Town's Male Residents
[6] News in Brief
[7] EPIC Bookstore: No Place to Hide
[8] Upcoming Conferences and Events

[1] EPIC Testifies on RFID Uses for Health Care; Proposes Framework

In testimony on January 11 before the Department of Health and HumanServices National Committee on Vital and Health StatisticsSubcommittee on Privacy and Confidentiality, EPIC President andExecutive Director Marc Rotenberg proposed a new four-tier frameworkto regulate radio frequency identification (RFID) in the health caresetting. Rotenberg testified that the existing legislative structureis inadequate to regulate RFID use and should be strengthened withguidelines. He argued that privacy is best protected when an activityis regulated from the beginning, and least protected when left toindustry self-regulation.

Rotenberg identified four types of RFID use in health care andproposed a separate tier of regulation for each. The first tierconcerns the bulk distribution of products tagged with RFIDs that areneither linked to specific individuals nor collect personallyidentifiable information. In these circumstances, there are noprivacy risks and therefore no obligation to protect privacy. Tier 2concerns products tagged with RFIDs that are distributed and linked toidentified patients. In these cases, the privacy risks areproportional to the collection of personally identifiable informationand should be regulated according to existing privacy rules, as wellas supplemented with additional rules such as those urged by EPIC'sRFID Guidelines. The third tier concerns patients who are temporarilytagged with RFIDs. In these cases, privacy and security risks becomegreater, and in addition to measures proposed under tier 2, identitytheft and general security must also be addressed. The final tierconcerns patients permanently labeled with RFIDs imbedded in softtissue. Rotenberg testified that this practice is coercive, profound,and has far-reaching ethical implications. The privacy risks here arethe greatest since the person loses control over the disclosure of hisor her actual identity. In light of the extreme privacy risks,Rotenberg recommended that this practice, which is currently used bythe Verichip Corporation, be banned.

Rotenberg testified on one of two RFID panels appearing before theSubcommittee. Daniel Solove, Associate Professor of Law at GeorgeWashington Law School and an EPIC Advisory Board member, alsotestified on the substantial privacy risks posed by RFIDs, the lack ofan adequate regulatory structure and the contribution of RFIDs to theoverarching context of data-collection and the compilation of digitaldossiers. The other panel comprised industry representatives fromSurgichip and Verichip and a representative from the Food and DrugAdministration. The FDA testified that it only has regulatoryjurisdiction over the medical use of RFIDs; consequently, other uses,such as for e-commerce, are not regulated under FDA requirements orprivacy provisions of the Health Insurance Protability andAccountability Act (HIPPA).

An archived broadcast of the hearing is availble at:

For more information about radio frequency identification, see EPIC'sRFID Page:

For more information about the Verichip, see EPIC's Verichip Page:

[2] Landmark Privacy Bill Takes Effect in California

On January 1, Senate Bill 27, the "Shine the Light" law, took effectin California. The landmark bill, now codified as California CivilCode § 1798.83, provides California residents with the opportunity tocontact most businesses to request a disclosure of which third partiesthe business has shared their information with during the past year.
Small businesses and federal banks are exempt from the requirement.

S.B. 27 is important because it is one of the first legislativeattempts to address "list brokerage," the compilation and sale ofindividuals' personal information. List brokerage is used to fuelprivacy invasive marketing campaigns, including spamming,telemarketing, and junk mail. List brokers collect personalinformation from many sources, including business transactions,warranty cards, and sweepstakes entries. In many cases, businesses donot inform individuals of their information sales activities, andmajor companies, both online and off, sell their customer lists tolist brokers. S.B. 27 will help individuals learn more about howtheir information is sold to others and give then an opportunity tolimit the sale.

The new law requires businesses to notify customers of their rightsunder the statute by using a designated contact point (mailingaddress, e-mail address, toll-free number or toll-free fax number) torequest a business's disclosure regarding how it shares personalinformation with other businesses for direct marketing purposes. Uponreceiving such a request, companies must reveal to an individual whichthird parties they have shared personal information for marketingpurposes within the last twelve months. Importantly, the law onlyallows consumers to make such requests when companies have notprovided them with notice of privacy policies containing opt-outoptions. This means that companies that have created a privacy policyand opt-out right compliant with S.B. 27 are not required to give adetailed accounting of information sharing.

If a business fails to respond to a disclosure request, the customermay be entitled, in addition to the legal remedies provided undercurrent law, to recover a civil penalty of up to $500 per violation,and up to $3,000 per willful, intentional or reckless violation), aswell as attorneys' fees and costs.

S.B. 27:
For more information about the law, see EPIC's S.B. 27 Page:

[3] Coalition Opposes Loophole to Do-Not-Call Registry

In comments to the Federal Trade Commission, a coalition of privacyand consumer groups sharply criticized a proposed loophole to thefederal Do-Not-Call Registry. The proposed loophole would allowtelemarketers to deliver prerecorded voice messages to their existingcustomers, even if the customers' numbers are enrolled in theDo-Not-Call Registry. This usually takes the form of artificial orprerecorded messages being played when an individual answers thephone. It would also allow companies to leave such messages onanswering machines. The message would have to give the consumer anopportunity to opt out of the calls, either by pressing a button or bycalling a toll-free number.

The coalition argued that the loophole's interaction with thedefinition of businesses' "current customers" is problematic. Undercurrent Do-Not-Call regulations, a business relationship existswhenever an individual makes an inquiry about or buys any product orservice. Inquiries create a relationship for three months; purchasesfor eighteen. During that period, the company can make telemarketingcalls even if the individual is enrolled in the Do-Not-Call Registry,and the individual must opt out of each business relationshipindividually.

The coalition comments noted that the loophole could open the door tovolumes of prerecorded spam because businesses are now more aggressivein obtaining identification information from consumers, and becausetelemarketing will become cheaper with the adoption of Internettelephony. Furthermore, even where an individual creates a businessrelationship with a company, it is often not within the individuals'
expectation to receive telemarketing.

Finally, the coalition argued that the opt-out methods of providing atoll-free number were insufficient; that individuals should be able tostop further calls by simply pressing a button on their telephonekeypad. The groups expressed concern that the Commission proposed toweaken the Do-Not-Call Registry. Enrollment in the Registry nowexceeds 80 million numbers, representing a resounding rejection oftelemarketing. The coalition argued that in light of this level ofenrollment, the priorities of the Commission should be focused onheightening protections against invasions of privacy. For instance,the success of the Do-Not-Call Registry could be expanded into a toolto that would allow individuals to opt out of prescreened offers ofcredit and non-affiliate financial information sharing, or to shieldagainst junk mail. The Registry could become a platform that wouldallow people to opt out under many different privacy laws at the sametime.

Coalition comments to the Federal Trade Commission on the proposedloophole:

For more information about telemarketing and the Do-Not-Call Registry,see EPIC's Telemarketing Page:

[4] EPIC Obtains FBI Reports to Congress on Carnivore

Through the Freedom of Information Act, EPIC has obtained FBI reportsto Congress stating that the law enforcement agency did not use itsDCS 1000 Internet monitoring system -- formerly known as Carnivore --
during fiscal years 2002 and 2003. The reports were prepared inaccordance with the 21st Century Department of Justice AppropriationsAct, which requires the FBI to report annually to Congress on its useof DCS 1000 or later versions of the program.

The existence of Carnivore first came to light in 2000. Reportsindicated that the system could be installed at the facilities of aninternet service provider and monitor all traffic moving through theISP. The FBI argued that Carnivore merely "filtered" data traffic andensured that investigators collected only those "packets" they werelawfully authorized to obtain. However, because the details of thesystem remain unknown, the public has long been left to trust theFBI's characterization of the system and -- more significantly -- theFBI's compliance with legal requirements.

The first report obtained by EPIC states that the FBI usedcommercially available software -- rather than its own DCS 1000 system
-- to conduct court-ordered electronic surveillance five times infiscal year 2002. According to the FY2003 report, the FBI usedcommercially available software to conduct court-ordered surveillanceeight times. The FBI reported that it did not use DCS 1000 to conductsurveillance during either fiscal year.

The reports suggest that the FBI's need for Carnivore-like Internetsurveillance tools is decreasing, likely because ISPs are providingInternet traffic information directly to the government.

FBI reports to Congress on use of DCS 1000:

For more information about Carnivore, see EPIC's Carnivore FOIALitigation Page:

To see more documents about Carnivore, see EPIC's Carnivore FOIADocuments Page:

[5] Police Ask for DNA From Cape Cod Town's Male Residents

Police are randomly approaching men in Truro, Massacusetts to ask forDNA samples in an effort to solve a three-year-old murder. Truro's 800male residents are being asked for saliva swabs at such communitymeeting places as groceries and the local post office.

Law enforcement believe the samples may help their investigationbecause evidence found at the scene of the crime indicates anunidentified man had sex with the muder victim shortly before she waskilled. Though unsure the man had anything to do with the crime,police hope he might yield clues to the killer's identity.

Police maintain that Truro's male residents are under no legalobligation to provide the police with a sample of their DNA. However,Cape and Islands District Attorney Michael O'Keefe says that lawenforcement will be forced to look at those who refuse to submit to asaliva swab.

Law enforcement officials have said they plan to destroy the geneticprofiles of the men whose DNA does not match the evidence taken fromthe crime scene. It is unclear, however, whether the samples theprofiles are derived from will be destroyed when individuals areeliminated as suspects.

Last year, EPIC filed two amicus briefs in cases examining whethercompelled production of DNA violates the Fourth Amendment. EPIC'sbriefs poined out that DNA can reveal a vast amount of informationabout a person, including health, gender, and familial details.
Furthermore, because members of the same family have similar DNApatterns, an individual's DNA profile may indirectly implicate arelative. Moreover, EPIC pointed out, there is no uniform storagepolicy for DNA samples collected for law enforcement purposes; rather,each state has a different policy. Not only could samples end up inthe hands of researchers, but international cooperation among lawenforcement agencies has opened up the national law enforcement DNAdatabase to other governments.

EPIC's amicus brief in United States v. Kincade:

EPIC's amicus brief in Maryland v. Raines:
For more information about privacy of DNA, see EPIC's Genetic PrivacyPage:

[6] News in Brief

EPIC CHALLENGES CHOICEPOINT TO PUBLIC HEARINGS ON CONSUMER PRIVACYIn December, EPIC wrote a complaint to the Federal Trade Commissionrequesting an investigation into the field of commercial data brokers,companies such as Choicepoint that sell personal information to lawenforcement and other entities (see EPIC Alert 11.24). Later inDecember, Choicepoint responded, criticizing EPIC for not havingmeetings with the company and calling for a dialogue. EPIC acceptedthat invitation, and has challenged Choicepoint to a public discussionof the scope of commercial data brokers' activities on the record atthe Federal Trade Commission and Congress. EPIC Executive DirectorMarc Rotenberg wrote to Choicepoint Chief Operating Officer DouglasCurling: "You and your chairman have proposed a national debate on theresponsible use of personal information. We support this. But it isnot a debate that should take place at industry trade shows or closeddoor meetings with PR specialists and Washington lobbyists. We wouldwelcome a public hearing in Congress with balanced representationbetween those in the information broker industry and those in theconsumer protection field, including state attorneys general, todiscuss the scope and application of the Fair Credit Reporting Act tothe dossiers on American consumers now being sold by companies such asyours."

EPIC complaint to the Federal Trade Commission:

Choicepoint's response:

EPIC's reply and challenge to Choicepoint:

US-VISIT EXPANDS TO 50 BUSIEST LAND PORTS OF ENTRYThe United States Visitor and Immigrant Status Indicator Technology(US-VISIT) program marked its first anniversary in early January andextended its entry/exit biometric capturing system to 50 of thebusiest land ports of entry. The system requires two digital indexfinger scans as well as a digital photograph of the visitor, which areintended to verify identity and are compared to a vast network ofgovernment databases. US-VISIT is now operational at 115 airports and15 seaports and has "processed" approximately 16.9 million foreignvisitors. The system will be fully in place at all land ports by theend of 2005. Currently US-VISIT targets visitors entering the U.S.
However, a number of pilot programs are testing the extension of theprogram to capture biometric exit data.

For more information about US-VISIT, visit EPIC's US-VISIT Page:

TWO STUDIES SHOW TELEMARKETERS ONLY GIVE 1/3 TO CHARITIESReports issued in December by the New York and Massachusetts AttorneyGenerals' offices state that in 2003 (the most recent year for whichdata is available), an average of only about 1/3 of funds raised forcharities in solicitation campaigns are actually received by thecharities. In Massachusetts, charities received 29 cents of everydollar raised in solicitation campaigns (including telemarketing,mailings and door-to-door solicitations), an increase of about 3 centsfrom the previous year. In New York, meanwhile, charities retained33.67 cents of every dollar raised by telemarketing, also a slightincrease from the previous year. The New York report notes that thereare some circumstances that cause elevated fundraising costs forcharities, such as attempting to contact new donors, testing newfundraising methods, or bundling educational and fundraising goalstogether. While the Supreme Court ruled in 1988 in Riley v. NationalFederation of the Blind that states cannot prescribe the percentage oftotal funds that charities use for fundraising, a 2003 decision,Illinois v. Telemarketing Associations, found that telemarketerscannot make deliberately false or fraudulent statements duringsolicitations. The Massachusetts report warns that by giving 100percent of revenue to charities who then pay solicitors fees andexpenses, telemarketers can legally state that all proceeds go to thecharity.

Pennies for Charity 2004 (New York Attorney General's Report):

Massachusetts Attorney General's Report on Telemarketing for Charity:

For more information about telphone solicitations, see EPIC'sTelemarketing Page:

MICHIGAN ID THEFT LAW SIGNED BY GOVERNOR GRANHOLMOn December 28, Michigan governor Jennifer Granholm signed into lawthe Identity Theft Protection Act, a far-reaching series of billstoughening the state's identity theft laws. Several of the laws limitpublic exposure of identity information by limiting companies' rightsto require customers' Social Security numbers in the course ofbusiness; prohibiting the public display of social security numbers,as on health insurance cards and college IDs; prohibiting therecording and transmitting of identifying information from ATM, debitand credit cards; and banning businesses from printing more than thelast four digits of credit card numbers on receipts. Other laws aremeant to ease prosecution by strengthening the legal definition ofidentity theft; redefining the term in the state criminal code;
establishing sentencing guidelines; extending the statute oflimitations for these crimes; and diminishing jurisdictional barriersthat formerly made it difficult to prosecute identity thieves in theirhome cities or counties. Still other laws strengthen the rights ofvictims by guaranteeing the right to have a police report taken andensuring victims' access to the report; and protecting victims frombeing denied credit or utility service.

The texts of the Michigan ID theft bills are available at:

Press release from the State of Michigan web site:

For more information on ID theft, see EPIC's Social Security Number(SSN) Page:

EBAY ABANDONS PASSPORT, CITES SECURITY CONCERNSEBay has announced that beginning in late January it will no longersupport Microsoft Passport. This means that e Bay members will nolonger be able to sign in to eBay using the Microsoft Passport SignIn, and that eBay will no longer use .NET alerts to send notificationsto members. This move is the latest among Internet companies that aredropping the single sign-in identification scheme. droppedPassport in October 2004.

Press release, eBay to Retire Microsoft Passport Sign In and .NETAlerts: - 2004-12-29114827

For more information about Passport, see EPIC's Sign Out of PassportPage:

EUROPEAN BIOMETRIC VISA SCHEME TECHNICALLY UNWORKABLEThe European Union's plans to introduce biometric identifiers in visaand residence permits have been revised due to technology issues.
While proposed regulations originally envisaged putting a "contactlesschip" into visas attached to passports, a November 2004 reportconcluded that this will not be technically feasible due to"collision" problems between the chipped visa and other chipped visasand passports. Specifically, the RFID signals would collide, makingcontactless readers ineffective. In late December the incomingLuxembourg presidency of the European Union circulated a "Note" thatproposed two alternatives. The first involves matching biometricsagainst the Visa Information System (VIS) database rather than againsta local document. The second would involve local matching, requiringthe traveler to carry a nonchipped visa inside his or her passport, aswell as a separate chipped card.

In related news, the European Commission recently tabled a proposal forregulation of VIS. The proposed regulation would provide the mandateto set up and maintain VIS, including articulating its purpose,setting out the responsibilities and functionalities of the VIS andestablishing the conditions and procedures for the exchange of visadata between member states.

Note from incoming Luxembourg presidency to Visa Working Group:

Technical report to the European Council saying proposed scheme notfeasible:

Proposal for a Regulation of the European Parliament and of theCouncil concerning the Visa Information System and the exchange ofdata between Member States on short stay-visas:

[7] EPIC Bookstore: No Place to Hide

Robert O'Harrow, No Place to Hide (Free Press 2005).

Journalist Robert O'Harrow's first book, No Place to Hide, is aWashington insider's exposé of how the fast-developing datacollection, analysis, and identification technologies first developedfor the marketing industry are increasingly used for law enforcementpurposes since 9/11. O'Harrow's book recounts the development of theUSA PATRIOT Act in astonishing detail, complete with vignettes aboutthe Act's authors sleeping in their offices while drafting thelegislation, and the refusal of government attorneys to engage civilliberties advocates to discuss the legislation, even off the record.

O'Harrow obtained unprecedented access for this book, and as a result,No Place to Hide is an illuminating read for those interested in civilliberties issues. He shows that John Poindexter is still involved inTotal-Information-Awareness-like activities. His interviews with keypeople at Acxiom reveal the company has tricky methods of collecting datathat people think are private, such as unlisted phone numbers. Butwhat is perhaps most interesting is how O'Harrow shows the peopleinvolved in creating new government powers and data collection toolsare concerned about how their actions affect privacy.

- Chris Hoofnagle

"The Public Voice WSIS Sourcebook: Perspectives on the World Summit onthe Information Society" (EPIC 2004). Price: $40.

This resource promotes a dialogue on the issues, the outcomes, and theprocess of the World Summit on the Information Society (WSIS). Thisreference guide provides the official UN documents, regional andissue-oriented perspectives, as well as recommendations and proposalsfor future action, as well as a useful list of resources and contactsfor individuals and organizations that wish to become more involved inthe WSIS process.

"The Privacy Law Sourcebook 2003: United States Law, InternationalLaw, and Recent Developments," Marc Rotenberg, editor (EPIC 2003).
Price: $40.

The "Physicians Desk Reference of the privacy world." An invaluableresource for students, attorneys, researchers and journalists who needan up-to-date collection of U.S. and International privacy law, aswell as a comprehensive listing of privacy resources.

"Filters and Freedom 2.0: Free Speech Perspectives on Internet ContentControls" (EPIC 2001). Price: $20.

A collection of essays, studies, and critiques of Internet contentfiltering. These papers are instrumental in explaining why filteringthreatens free expression.

"The Consumer Law Sourcebook 2000: Electronic Commerce and the GlobalEconomy," Sarah Andrews, editor (EPIC 2000). Price: $40.
The Consumer Law Sourcebook provides a basic set of materials forconsumers, policy makers, practitioners and researchers who areinterested in the emerging field of electronic commerce. The focus ison framework legislation that articulates basic rights for consumersand the basic responsibilities for businesses in the online economy.

"Cryptography and Liberty 2000: An International Survey of EncryptionPolicy," Wayne Madsen and David Banisar, authors (EPIC 2000). Price:

EPIC's third survey of encryption policies around the world. Theresults indicate that the efforts to reduce export controls on strongencryption products have largely succeeded, although severalgovernments are gaining new powers to combat the perceived threats ofencryption to law enforcement.

EPIC publications and other books on privacy, open government, freeexpression, crypto and governance can be ordered at:

EPIC Bookstore

"EPIC Bookshelf" at Powell's Books target="new">

[8] Upcoming Conferences and Events

3rd Annual Digital Rights Management Conference 2005. Ministry ofScience and Research of the State Northrhine Westfalia, Germany.
January 13-24, 2005. Berlin, Germany. For more information:

Book Reading and Signing with Robert O'Harrow. January 15, 2005.
Politics & Prose, Washington, DC. For more information:

Book Party and Reception with Robert O'Harrow. Co-hosted by theStewart R. Mott Charitable Trust. January 24, 2005. The Mott House,
122 Maryland Avenue NE, Washington, DC.

12th Annual Network and Distributed System Security Symposium. TheInternet Society. February 3-4, 2005. San Diego, CA. For moreinformation: target="new">

14th Annual RSA Conference. RSA Security. February 14-18, 2005. SanFrancisco, CA. For more information:

The World Summit on the Information Society PrepCom 2. February17-25, 2005. Geneva, Switzerland. For more information:

3rd International Conference of Information Commissioners. FederalInstitute of Access to Information. February 20-23, 2005. Cancun,Mexico. For more information:

The Concealed I: Anonymity, Identity, and the Prospect of Privacy. Onthe Identity Trail and the Law and Technology Program at theUniversity of Ottawa. March 4-5, 2005. Ottawa, Canada. For moreinformation: target="new">

The Health Information Technology Summit West. eHealth Initiative.
March 6-8, 2005. San Francisco. For more information:

IAPP National Privacy Summit 2005. International Association ofPrivacy Professionals. March 9-11, 2005. Washington, DC. For moreinformation:

O'Reilly Emerging Technology Conference. March 14-17, 2005. SanDiego, CA. For more Information:

7th International General Online Research Conference. GermanSociety for Online Research. March 22-23, 2005. Zurich, Switzerland.
For more information: target="new">

The 2005 Nonprofit Technology Conference. Nonprofit TechnologyEnterprise Network. March 23-25, 2005. Chicago, IL. For moreinformation: target="new">

Internet Corporation For Assigned Names and Numbers (ICANN) Meeting.
April 4-8, 2005. Mar del Plata, Argentina. For more information:

5th Annual Future of Music Policy Summit. Future of MusicCoalition. April 10-11, 2005. Washington DC. For more information:

CFP2005: Fifteenth Annual Conference on Computers, Freedom andPrivacy. April 12-15, 2005. Seattle, WA. For more information:

2005 IEEE Symposium on Security and Privacy. IEEE Computer SocietyTechnical Committee on Security and Privacy in cooperation with TheInternational Association for Cryptologic Research. May 8-11, 2005.
Berkeley, CA. For more information:

SEC2005: Security and Privacy in the Age of Ubiquitous Computing.
Technical Committee on Security & Protection in Information ProcessingSystems with the support of Information Processing Society of Japan.
May 30-June 1, 2005. Chiba, Japan. For more information:

Internet Corporation For Assigned Names and Numbers (ICANN) Meeting.
July 11-15, 2005. Luxembourg City, Luxenbourg. For more information:

3rd International Human.SocietyInternet Conference. July 27-29,
2005. Tokyo, Japan. For more information:

The World Summit on the Information Society. Government of Tunisia.
November 16-18, 2005. Tunis, Tunisia. For more information:

Internet Corporation For Assigned Names and Numbers (ICANN) Meeting.
November 30-December 4, 2005. Vancouver, Canada. For moreinformation: target="new">

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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, see or write EPIC, 1718 Connecticut Ave., NW, Suite200, 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.

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