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EPIC Alert 13.10 [2006] EPICAlert 10


Volume 13.10 May 16, 2006

Published by the Electronic Privacy Information Center (EPIC)
Washington, D.C. ACTION ITEM: Call-in to Congress and Protest Domestic NSA SurveillanceThe Bill of Rights Defense Committee, in partnership with a group oforganizations including EPIC, is asking you to call your legislators toprotest the NSA's domestic call surveillance program. For details,visit:

Table of Contents

[1] EPIC Urges FCC to Open Investigation into NSA Datamining
[2] CIA Director Nominee Oversaw NSA Domestic Spying Programs
[3] Congress, Ex-NSA Director, Law Experts Assail NSA Program
[4] Phone Companies Under Fire for Disclosures to NSA
[5] Most Americans Want Investigation of NSA Program
[6] News in Brief
[7] EPIC Bookstore: Christian Parenti's "The Soft Cage"

[8] Upcoming Conferences and Events

[1] EPIC Urges FCC to Open Investigation into NSA Datamining

In the wake of news regarding the National Security Agency'srecently-disclosed program to mine the communications records of tens ofmillions of Americans, EPIC is asking the Federal CommunicationsCommission to investigate the phone companies that turned customerinformation over to the NSA. If the companies had disclosed customerinformation without warrants or explicit customer approval, they likelyviolated Section 222 of the Communications Act. This provision ofcommunications law requires telephone companies to keep customer recordsconfidential.

In urging the investigation, EPIC joins FCC Commissioner Michael Copps,who called for an investigation on Monday. " We need to be certain thatthe companies over which the FCC has public interest oversight have notgone - or been asked to go - to a place where they should not be," Coppssaid.

This is the second secret NSA domestic spying program disclosed in thelast six months. In December, the New York Times reported that PresidentBush secretly issued an executive order in 2002 authorizing the NSA toconduct warrantless surveillance of international telephone and Internetcommunications on American soil.

Government officials have refused to give details about either program,saying such disclosures could harm national security. However, newsreports indicate that both programs are operating outside the bounds setby the Foreign Intelligence Surveillance Act, which was passed after theWatergate scandal to establish a legal basis for foreign intelligencesurveillance within the United States. The Bush Administration says thatboth programs are continuing. The latest program contradicts statementsmade by the White House and former NSA Director Michael Hayden that thedomestic surveillance program was "highly targeted" and directed only to"International communications."

In the recently disclosed program, the agency is gatheringcommunications records for a massive database so that it can analyzecalling patterns as it tries to find terrorist activity. According tothe USA Today article, AT&T, Verizon and BellSouth handed over the dataeven though the government did not have warrants. (BellSouth has sincedenied cooperating with the program.) Qwest refused to give itscustomers' data to the government, because the government did not havewarrants and refused to have either the Foreign IntelligenceSurveillance Court or the U.S. attorney general's office evaluate thelegality of the program. (Read more about the phone companies below.)

The Foreign Intelligence Surveillance Court issues warrants for secretwiretap surveillance. The recently released Foreign IntelligenceSurveillance Act Report reveals that the government made 2,072 secretsurveillance requests to the court in 2005, a record high and 18 percentmore than in 2004. The court did not deny any of the requests.

EPIC's letter to the FCC (pdf):

Statement of FCC Commissioner Copps on the NSA Program (pdf):

EPIC Resources on Domestic Surveillance:

EPIC's Foreign Intelligence Surveillance Act Page:

NSA, FAQ on Signals Intelligence:

Foreign Intelligence Surveillance Act Report:

[2] CIA Director Nominee Oversaw NSA Domestic Spying Programs

General Michael Hayden, who served as director of the National SecurityAgency during the implementation of two controversial surveillanceprograms, has been nominated by President Bush to head the CentralIntelligence Agency. If confirmed, Hayden would run the country's mostprominent intelligence-gathering agency, which is charged withcollecting and analyzing information about foreign governments,businesses, and people. Hayden, the highest-ranking intelligence officerin the U.S. military, is currently Principal Deputy Director of NationalIntelligence.

While at the NSA from 1999 to 2005, Hayden oversaw the agency'swarrantless surveillance of international calls into and out of theUnited States, and headed the agency when it began acquiring phonerecords about Americans without legal authority. According to the NewYork Times, "by all accounts, General Hayden was the principal architectof the plan. He saw the opportunity to use the N.S.A.'s enormoustechnological capabilities by loosening restrictions on the agency'soperations inside the United States."

The Senate Intelligence Committee will hold a confirmation hearing onHayden's nomination tomorrow. Several members of that committee havepublicly expressed concern about Hayden's role in the NSA's domesticsurveillance activities, as well as frustration that they were not fullybriefed on the extent of these operations. "There's no question that hisconfirmation is going to depend upon the answers he gives regardingactivities of NSA," said committee member Senator Chuck Hagel.

Biographies of General Michael V. Hayden:

Senate Intelligence Committee Confirmation Hearing of General MichaelHayden to be Director of the CIA:

[3] Congress, Ex-NSA Director, Law Experts Assail NSA Program

While the White House scrambled last week to defend its massivecollection of Americans' phone records, high-level government officialsand legal experts disputed the legality of the database and the secrecysurrounding the NSA's activities.

Members of Congress across the political spectrum blasted the database.
Critics included the Senate Judiciary Committee's chairman and numerousmembers of House and Senate oversight committees. Just hours after theexistence of the database was reported by USA Today, Representative JaneHarman, the ranking member of the House Intelligence Committee,introduced a bill that would underscore the illegality of conductingelectronic surveillance on Americans outside the Foreign IntelligenceSurveillance Act.

In addition, former NSA director Bobby Ray Inman spoke out after hearingnews of the phone records collection, declaring that "we can do what thecountry needs and work within the law."

Legal experts have also weighed in on the illegality of the database.
Harvard constitutional law professor Laurence Tribe railed against theargument that individuals have no constitutional right to privacy inphone numbers they dial. "Even if one trusts the president's promise notto connect all the dots to the degree the technology permits, the act ofcollecting all those dots in a form that permits their completeconnection at his whim is a 'search.' And doing it to all Americans, notjust those chatting with Al Qaeda, and with no publicly reviewablesafeguards to prevent abuse, is an 'unreasonable search' if those FourthAmendment words have any meaning at all," Professor Tribe wrote in aBoston Globe op-ed.

Professor Orin Kerr from the George Washington University Law Schooltentatively concluded that the program implicated "no Fourth Amendmentissues . . . but a number of statutory problems." He speculated that theprogram might violate a cadre of laws that restrict the collection ofcommunications-related information such as the Foreign IntelligenceSurveillance Act, Stored Communications Act, and the law regulating useof pen registers (electronic devices that capture dialed phone numbers).

Marty Lederman, a professor at Georgetown Law School and former attorneyadvisor in the Justice Department's Office of Legal Counsel, agreed withKerr's analysis, noting that the NSA's collection of phone records "suredoes appear to run up against several statutory restrictions thatCongress and the President have enacted in order to protect the privacyof our phone calls and phone records, not least of which is FISAitself[.]"

H. 5371, the LISTEN Act:

Laurence H. Tribe, Bush Stomps on Fourth Amendment, Boston Globe:

Professor Orin Kerr on the NSA's collection of domestic phone records:

Professor Marty Lederman on the NSA's collection of domestic phone records:

[4] Phone Companies Under Fire for Disclosures to NSA

News about the NSA's call records spying program has focused increasedattention on the telephone companies who turned over information aboutmillions of their customers to the federal government. According to theUSA Today report, AT&T, Verizon, and BellSouth all voluntarily handedover customer records at the NSA's request, although the agency refusedto seek a warrant or court order requiring the disclosure. (BellSouthhas since denied that it participated in the NSA program.) Of the phonecompanies known to have been approached, only Qwest insisted that theNSA produce a court order.

Qwest's decision was likely made not only in light of its customers'
privacy, but also because telecommunications carriers are required bymore than one law to keep phone records private. Carriers are bound notonly by Section 222 of the Communications Act, but also by the StoredCommunications Act, which also makes it illegal for a phone company togive customer records to the government without a warrant or a courtorder.

Legal scholars have weighed in on the issue, determining that theprogram, as described in initial reports, violates the StoredCommunications Act. In a column posted on FindLaw, University ofWashington law professor Anita Ramasastry said, "Based on what we knownow, it seems Qwest was entirely correct to refuse to comply. [TheStored Communications Act] specifically forbade it - and the othercompanies - from doing what the government asked."

Ramasastry noted that the Stored Communications Act lets individualconsumers sue their telephone companies if their records have beenillegally disclosed. Each violation carries a minimum penalty of$1,000. With over 10 million Americans possibly affected, lawsuitsagainst the telephone companies could garner rewards in the billions ofdollars. Already, class action suits have been filed against the threeimplicated companies.

Although Qwest is the only company known to have refused the NSA'srequest for records, other telecommunications carriers have steppedforward to say that they would not acquiesce to a similar request fromthe government. Among those carriers are RCN Communications, AOL TimeWarner, Comcast, Cox Communications, Cablevision Systems, CingularWireless, EarthLink, Microsoft, and T-Mobile.

Professor Anita Ramasastry on the NSA program and the StoredCommunications Act:

[5] Most Americans Want Investigation of NSA Program

By a nearly 2-to-1 margin, 62% to 34%, Americans support immediatecongressional hearings to investigate the NSA's secret phone call recorddatabase program, according to a recent USA Today/Gallup poll. The samepoll showed that 51% of Americans disapprove of the secret domesticsurveillance program.

Two-thirds of those polled say that they are concerned that the programwill lead to the targeting of innocent Americans as terrorism suspects.
About two-thirds expressed concern that the government is conductingmore domestic surveillance than just gathering phone call record data;
they are concerned bank records or Internet use records are also beinggathered.

A Newsweek poll also reports that 53% of Americans said the NSA programwent too far in invading peoples' privacy. This poll also showed that57% of those responding aid that, in light of the revelations of theprogram and other events, the Bush administration has "gone too far inexpanding presidential power."

These two polls differ from a recent ABC News/Washington Post poll,which found that 51% of those polled supported the phone call recordprogram. However, the ABC News/Washington Post poll was conducted theday the secret surveillance program was revealed, while the USAToday/Gallup poll was conducted a few days after. Also, the USAToday/Gallup poll surveyed 60% more respondents, 809 adults to the 502polled by ABC News/Washington Post. The Newsweek poll surveyed 1007adults.

USA Today/Gallup Poll:

Newsweek Poll:

ABC News/Washington Post Poll:

EPIC's Privacy and Public Opinion Page:

[6] News in Brief

Action Item: National Call-In to Protest NSA SurveillanceA coalition of civil liberties groups, including EPIC, is asking forAmericans to call their senators and representatives beginning May 17thto protest the NSA's secret database of your call records. Everyone isencouraged to give Congress the chance to monitor and record thepublic's displeasure at warrantless domestic surveillance. The groupsbacking the call-in include: Alliance for Justice, American CivilLiberties Union, Bill of Rights Defense Committee, Council onAmerican-Islamic Relations, Electronic Privacy Information Center, FirstAmendment Foundation, Friends Committee on National Legislation,National Association of Criminal Defense Lawyers, National CoalitionAgainst Oppressive Legislation, National Lawyers Guild, People For theAmerican Way, and Unitarian Universalist Association of Congregations.

Information on How to Contact your Legislators: Testifies in Support of SSN Privacy and SecurityIn testimony before the House Commerce Committee last week, EPICExecutive Director Marc Rotenberg urged lawmakers to establish limits onthe use of the Social Security number. "The expanded use of the SocialSecurity number is fueling the increase in identity theft in the UnitedStates and placing the privacy of American citizens are great risk,"
said Mr. Rotenberg. Congress is considering two bills that could providestronger privacy protection for consumers.

Hearing: Social Security Numbers in Commerce: Reconciling BeneficialUses with Threats to Privacy:

EPIC Testimony (pdf):

EPIC's Social Security Numbers page: Rejects .xxx RegistryICANN, the body that determines Internet domain name policy, rejected anapplication by a company to create a .xxx registry. The 9-5 voteagainst the plan means that there will be no .xxx top level domain. Manyattribute the opposition to the new domain to conservative influenceswithin the United States who feel that creating a domain exclusively foradult sites will legitimize pornography. However, civil libertiesadvocates have also argued that creating the .xxx domain would run therisk of easing censorship, as laws requiring adult sites to use .xxxdomains have been proposed.

ICANN Announcement: Warns Reporters Their Calls May be TrackedABC News posted a blog item on May 15 claiming that an unnamed seniorfederal law enforcement official warned reporters that their calls werebeing tracked. The source told investigative reporters at ABC that thenumbers they called were being tracked in order to identify potentialleaks. Other sources stated that phone numbers called by reporters atABC, the New York Times, and the Washington Post were being investigatedas part of a CIA leak investigation.

ABC News Post: Comments on Telemarketer Petition Seeking Use of Auto DialersIn comments to the Federal Communications Commission, EPIC urged theagency to reject a petition by ACA International that would allow theuse of auto dialers by debt collectors. The Telephone ConsumerProtection Act of 1991 prohibits the use of auto dialers to contacttelephone devices. EPIC told the agency that the incidents of identitytheft in the US made the claim by ACA that it only seeks to collectoutstanding debt suspect. EPIC also told the agency that it correctlyinterpreted Congressional intent in the rule promulgated and should notreverse itself on this matter.

EPIC's Comments:

EPIC's Telemarketing Page:

[7] EPIC Bookstore: Christian Parenti's "The Soft Cage"

Christian Parenti. "The Soft Cage:Surveillance in America from Slaveryto the War on Terror." Basic Books, 2004.

"On a typical day, you might make a call on a cell phone, withdraw moneyat an ATM, visit the mall, and make a purchase with a credit card. Eachof these routine transactions leaves a digital trail, logging yourmovements, schedules, habits and political beliefs for governmentagencies and businesses to access. As cutting-edge historian andjournalist Christian Parenti points out in this urgent and timely book,these everyday intrusions on privacy, while harmless in themselves, arepart of a relentless expansion of routine surveillance in American lifeover the last two centuries. Vivid and chilling, The Soft Cage exploresthe hidden history of surveillance
from controlling slaves in the oldSouth to implementing early criminal justice, tracking immigrants, andeven establishing modern social work. It also explores the rolecomputers play in creating a whole new world of seemingly benigntechnologies
such as credit cards, website "cookies," electronic tollcollection, "data mining." and iris scanners at airports. With fears ofpersonal and national security at an all-time high, this ever-growinginfrastructure of high-tech voyeurism is shifting the balance of powerbetween individuals and the state in groundbreaking
and verydangerous
ways. From closed-circuit television cameras to theDepartment of Homeland Security, The Soft Cage offers a compelling,vitally important history lesson for every American concerned about theexpansion of surveillance into our public and private lives."
EPIC Publications:

"Information Privacy Law: Cases and Materials, Second Edition" Daniel J.
Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price: $98.

This clear, comprehensive introduction to the field of informationprivacy law allows instructors to enliven their teaching of fundamentalconcepts by addressing both enduring and emerging controversies. TheSecond Edition addresses numerous rapidly developing areas of privacylaw, including: identity theft, government data mining,and electronicsurveillance law, the Foreign Intelligence Surveillance Act,intelligence sharing, RFID tags, GPS, sypware, web bugs, and more.
Information Privacy Law, Second Edition, builds a cohesive foundationfor an exciting course in this rapidly evolving area of law.

"Privacy & Human Rights 2004: An International Survey of Privacy Lawsand Developments" (EPIC 2004). Price: $50.

This annual report by EPIC and Privacy International provides anoverview of key privacy topics and reviews the state of privacy in over60 countries around the world. The report outlines legal protections,new challenges, and important issues and events relating to privacy.
Privacy & Human Rights 2004 is the most comprehensive report on privacyand data protection ever published.

"FOIA 2004: Litigation Under the Federal Open Government Laws," HarryHammitt, David Sobel and Tiffany Stedman, editors (EPIC 2004). Price:

This is the standard reference work covering all aspects of the Freedomof Information Act, the Privacy Act, the Government in the Sunshine Act,and the Federal Advisory Committee Act. The 22nd edition fully updatesthe manual that lawyers, journalists and researchers have relied on formore than 25 years. For those who litigate open government cases (orneed to learn how to litigate them), this is an essential referencemanual.

"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, and recommendations and proposals forfuture action, as well as a useful list of resources and contacts forindividuals and organizations that wish to become more involved in theWSIS process.

"The Privacy Law Sourcebook 2004: United States Law, International Law,and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price:

The Privacy Law Sourcebook, which has been called the "Physician's DeskReference" of the privacy world, is the leading resource for students,attorneys, researchers, and journalists interested in pursuing privacylaw in the United States and around the world. It includes the fulltexts of major privacy laws and directives such as the Fair CreditReporting Act, the Privacy Act, and the OECD Privacy Guidelines, as wellas an up-to-date section on recent developments. New materials includethe APEC Privacy Framework, the Video Voyeurism Prevention Act, and theCAN-SPAM Act.

"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.

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

EPIC also publishes EPIC FOIA Notes, which provides brief summaries ofinteresting documents obtained from government agencies under theFreedom of Information Act.

Subscribe to EPIC FOIA Notes at:

[8] Upcoming Conferences and Events

RFID Security, Data Protection & Privacy, Health and SafetyIssues. European Commission Infomration Society. May 16-17, 2006.
Brussels, Belgium. For more information:

Interoperability, standardisation, governance, and Intellectual PropertyRights. European Commission Infomration Society. June 1, 2006. Brussels,Belgium. For more information:

RFID Frequency spectrum: Requirements and Recommendations. EuropeanCommission Information Society. June 2, 2006. Brussels, Belgium. Formore information:

Call for papers for the CRCS Workshop 2006: Data Surveillance andPrivacy Protection. Center for Research on Computation and Society. June3, 2006. Cambridge, Massachusetts. For more information:

7th Annual Institute on Privacy Law: Evolving Laws and Practices in aSecurity-Driven World. Practising Law Institute. June 5-6, SanFrancisco, California. June 19-20, New York, New York. July 17-18,Chicago, Illinois. Live webcast available. For more information:

identitymashup: Who Controls and Protects the Digital Me? Berkman Centerfor Internet & Society, Harvard Law School. June 19-21, 2006. Cambridge,Massachusetts. For more information:

Infosecurity New York. Reed Exhibitions. September 12-14, 2006. NewYork, New York. For more information:

34th Research Conference on Communication, Information, and InternetPolicy. Telecommunications Policy Research Conference. September29-October 1, 2006. Arlington, Virginia. For more information:

6th Annual Future of Music Policy Summit. Future of Music Coalition.
October 5-7, 2006. Montreal, Canada. For more information:

The IAPP Privacy Academy 2006. International Association of PrivacyProfessionals. October 18-20, 2006. Toronto, Ontario, Canada. For moreinformation:

International Conference on Privacy, Security, and Trust (PST 2006).
University of Ontario Institute of Technology. October 20-November 1,
2006. Markham, Ontario, Canada. For more information:

BSR 2006 Annual Conference. Business for Social Responsibility. November7-10, 2006. New York, New York. For more information:

CFP2007: Computers, Freedom, and Privacy Conference. Association forComputing Machinery. May 2007. Montreal, Canada. For more information:

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About EPIC

The Electronic Privacy Information Center is a public interest researchcenter in Washington, DC. It was established in 1994 to focus publicattention on emerging privacy issues such as the Clipper Chip, theDigital Telephony proposal, national ID cards, medical record privacy,and the collection and sale of personal information. EPIC publishes theEPIC Alert, pursues Freedom of Information Act litigation, and conductspolicy research. For more information, see or writeEPIC, 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. +1 202483 1140 (tel), +1 202 483 1248 (fax).

If you'd like to support the work of the Electronic Privacy InformationCenter, contributions are welcome and fully tax-deductible. Checksshould be made out to "EPIC" and sent to 1718 Connecticut Ave., NW,Suite 200, Washington, DC 20009. Or you can contribute online at:

Your contributions will help support Freedom of Information Act andFirst Amendment litigation, strong and effective advocacy for the rightof privacy and efforts to oppose government regulation of encryption andexpanding wiretapping powers.

Thank you for your support.


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