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EPIC Alert 13.04 [2006] EPICAlert 4


Volume 13.04 February 23, 2006

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

[1] Court Orders Release of NSA Spy Documents to EPIC
[2] EPIC Urges Privacy for Whois Data
[3] Report on US-VISIT: Government is Lax on Security, Privacy
[4] Congress Slams Tech Firms On Censorship in China
[5] Federal Intelligence Agencies Reclassify Thousands of Documents
[6] News in Brief
[7] EPIC Bookstore: James Bamford's "The Puzzle Palace"

[8] Upcoming Conferences and Events

[1] Court Orders Release of NSA Spy Documents to EPIC

In response to a Freedom of Information Act lawsuit filed by EPIC, afederal judge has ordered the Department of Justice to either processand release documents related to the Bush Administration's warrantlesssurveillance program or explain why it will withhold them by March 8. Itis the first court ruling involving the controversial domestic spyingoperation.

"President Bush has invited meaningful debate about the warrantlesssurveillance program," U.S. District Judge Henry H. Kennedy wrote. "Thatcan only occur if DOJ processes [EPIC's] FOIA requests in a timelyfashion and releases the information sought."

He continued, "Given the great public and media attention that thegovernment's warrantless surveillance program has garnered and therecent hearings before the Senate Judiciary committee, the publicinterest is particularly well-served by the timely release of therequested documents."

EPIC submitted FOIA requests to four Justice Department offices the sameday that the New York Times reported a secret presidential orderauthorizing the National Security Agency to conduct warrantlesssurveillance of international telephone and Internet communications onAmerican soil. Noting the extraordinary public interest in the program,as well as its potential illegality, EPIC asked the offices to expeditethe processing of its requests. The Justice Department agreed that therequests warranted priority treatment, but failed to comply with theFOIA's usual time limit of twenty working days.

Last month, EPIC filed suit against the Justice Department to compel theimmediate disclosure of information about the warrantless surveillance.
EPIC's case has been consolidated with a lawsuit filed by the AmericanCivil Liberties Union and the National Security Archive concerningrequests for the same documents.

Once the Justice Department finishes processing the material, anydecision to withhold the requested documents will be subject to JudgeKennedy's review. He will have the ability to order "in camera"
production of the material and make an independent determinationconcerning public disclosure.

In related news, the American Bar Association has issued a reportcalling upon President Bush to abide by constitutional checks andbalances, and to end electronic surveillance inside the United Statesthat does not comply with the requirements of the Foreign IntelligenceSurveillance Act. The Association expressed overwhelming support for thereport, which also urged the Congress to undertake comprehensiveinvestigations of the Bush Administration's domestic surveillanceactivities.

Judge Kennedy's order in EPIC v. DOJ (pdf):

EPIC's Domestic Surveillance FOIA Page:

American Bar Association report:

EPIC's Foreign Intelligence Surveillance Act Page:

[2] EPIC Urges Privacy for Whois Data

On February 13, EPIC submitted comments urging privacy protections forWhois data, in response to ICANN's Preliminary Task Force Report on thePurpose of Whois. Whois provides the personal contact information forthe owners of domain names. The Task Force was put together in order todetermine how the Whois function of domain name registry is supposed towork, and what information about domain name owners should be madepublic.

ICANN is the corporation that manages the assignment of domain names(such as to Internet Protocol addresses (such as209.183.239.12). Every person or company that registers a domain name isrequired to make certain information publicly accessible to a Whoislookup. This information includes the contact information for the domainname holder, including her mailing address, email address, telephonenumber, and fax number. This same information has to be provided for thesite's administrative contact and technical contact.

EPIC recommended that ICANN adopt "Formulation One," which limits theuse of Whois data to technical and administrative purposes only. EPICspecifically opposed a proposal that would make Whois data available forbroader purposes, such as law enforcement and copyright investigations.

Since ICANN doesn't let users register anonymously, EPIC contended,
"anyone with Internet access has access to Whois data, includingstalkers, corrupt governments cracking down on dissidents, spammers,aggressive intellectual property lawyers, and police agents withoutlegal authority." The comments also pointed out that, since theinformation was available worldwide, and available for all registrants,Whois data can prove dangerous to "political, artistic, and religiousgroups around the world [who] rely on the Internet to provideinformation and express views while avoiding persecution."

EPIC further explained that ICANN's Whois policy conflicts with the lawsof many countries that have comprehensive privacy laws and the EuropeanUnion's Data Protection Directive. The Directive requires that wheninformation is collected, it be used only for its intended purpose.

EPIC argued that much of this information in Whois is unnecessary forits intended purpose, which was to allow network administrators to findand fix technical problems with minimal hassle in order to maintain thestability of the Internet. Providing more information that is necessaryfor this basic purpose, EPIC said, could also increase the risk ofidentity theft for domain name holders.

ICANN's Preliminary Report on Whois:

EPIC's Comments on Whois:

EPIC's Whois Page:

Privacy and Human Rights 2004 Report on Whois:

[3] Report on US-VISIT: Government is Lax on Security, Privacy

The Department of Homeland Security's sluggishness has jeopardized theeffectiveness of the US-VISIT border security program, according to anew report from the Government Accountability Office. Homeland Securityhas yet to develop and begin implementing a system security plan andprivacy impact assessment, the key recommendation that the GAO made whenit assessed the program two and a half years ago.

US-VISIT requires foreign nationals entering or exiting the country tosubmit biometric and biographical information. This data collectionoften begins before a visitor buys her plane ticket, as U.S. consularoffices abroad may, before issuing a U.S. visa, collect fingerscans frompotential visitors and compare them against those in a criminaldatabase. Fingerscans are again collected upon the visitor's arrival inthe U.S. for verification and then stored in a government database,along with travelers' arrival and departure records. Failure to beprocessed through this departure confirmation system could jeopardize avisitor's re-admittance to the U.S., as the government compares themanifest information provided by air and cruise lines to ascertain thatvisitors have not overstayed their visas.

The GAO report found that US-VIST has yet to complete a strategic planand key cost-benefit analyses, despite the $1.4 billion already spent onthe program and despite GAO's strong recommendation in 2002 that it doso. "However, although considerable time has passed since therecommendations were made, key actions have not yet been taken in suchcritical areas as (1) assessing security risks and planning forcost-effective controls to address the risks, (2) determining -- beforeUS-VISIT increments are deployed -- whether each increment will producemission value commensurate with cost and risk, and (3) ensuring thateach increment is adequately tested," the GAO said.

Of the 18 recommendations the GAO suggested in 2002 to improve US-VISIT,the Department of Homeland Security has only implemented two, the GAOsaid. Homeland Security has "also taken steps to implement the otherrecommendations partially completed 11 and is just beginning on five,"
the GAO said. The GAO also said that the longer it took to implement therecommendations, "the greater the risk that the program will not meetits stated goals and commitments."

Last month, Randolph Hite, GAO's Director of Information TechnologyArchitecture and Systems Issues, testified about US-VISIT before theSenate Appropriations Committee's Subcommittee on Homeland Security.
Hite described problems with US-VISIT's current tests on the use ofradio frequency identification (RFID) tags in arrival and departureforms to track people traveling through land ports. RFID tags do notensure the document belongs to the person carrying it and the technologyis imperfect, Director Hite said.

According to the GAO, "Despite DHS's estimate in February 2003, that thetotal overall cost of the US-VISIT program would be about $7.2 billionthrough fiscal year 2014, the potential government wide cost of US-VISITover just a 10-year period could be about twice as much." For FiscalYear 2007, President Bush has requested $399.5 million for the US-VISITprogram, $62.9 million more than it received in 2006. Most of theincrease will go toward the expansion of US-VISIT's fingerprint system;
it will now capture all 10 fingerprints instead of two.

Government Accountability Office Report on US-VISIT (pdf):

Testimony of Randolph C. Hite, Government Accountability Office, Beforethe Senate Subcommittee on Homeland Security (Jan. 25, 2006) (pdf):

Department of Homeland Security's Budget in Brief Fiscal Year 2007 (pdf):


Department of Homeland Security's US-VISIT Page:

[4] Congress Slams Tech Firms On Censorship in China

On February 15, a subcommittee of the House International RelationsCommittee held hearings on the presence of U.S. tech firms in China, andthe complicity of these companies in suppressing free speech in China.
Representatives from Yahoo, Cisco, Microsoft, and Google testifiedbefore the subcommittee.

Each of the four firms has been implicated in helping the Chinesegovernment maintain a strict control over speech in the People'sRepublic of China. Yahoo, for instance, gave Chinese authorities dataon at least two of its users who posted information critical of thegovernment online. The two users, Shi Tao and Li Zhi, were imprisonedfor ten and eight years, respectively, for separate incidents ofspeaking out against the government.

Cisco has come under fire for selling equipment that can be used tomonitor and censor speech, as well as training Chinese police in itsuse. Upon requests by the government, Microsoft removed the blog ofanother cyberdissident, Zhao Jing (aka "Anti"), not just from Chineseservers, but from circulation entirely. Google, along with other searchengines in China, has self-censored its search results in exchange forbeing able to operate in-country.

The hearings took a decidedly hostile tone, with both Republicans andDemocrats harshly criticizing the assembled witnesses for the companies.
Representative Tom Lantos (D-CA), pointedly asked the witnesses if theywere "ashamed" of their companies' actions. Representatives also blamedChina for its poor human rights record and its policies of censoring andharassing or imprisoning dissidents. Yahoo and Google were most heavilygrilled, while Cisco was largely left unquestioned.

Human rights experts who testified in the next panel seemed to indicate,however, that Cisco should have received further scrutiny. Harry Wu, ofthe China Information Center, and Lucie Morillon of Reporters WithoutBorders both targeted Cisco for training Chinese police in the use ofCisco networking equipment that can be used to monitor online speech.
The panel's witnesses, who also included Sharon Hom of Human Rights inChina, Xiao Qiang of Berkeley's China Internet Project, and Libby Liu ofRadio Free Asia all called for tech companies in China to take a firmerstand against speech-repressive policies overseas.

Representative Christopher Smith (R-NJ), who chairs the Subcommittee onAfrica, Global Human Rights, and International Operations, and whocalled for the hearing, has proposed a bill that would, among many otherthings, prevent search engines and Internet hosting services fromoperating within China and other designated countries.

Hearing Notice, "The Internet in China: A Tool for Freedom orSuppression?":

Subcommittee Home Page (includes links to hearing testimony andwebcast):

Human Rights in China Home Page:

Reporters Without Borders China Page:

Draft Version of Rep. Smith's Global Online Freedom Act of 2006 (pdf):

Privacy and Human Rights 2004 China Report:

EPIC's Filters and Freedom 2.0:

[5] Federal Intelligence Agencies Reclassify Thousands of Documents

Intelligence agencies have reclassified about 9,500 documents that wereavailable to the public for years at the National Archives, according toa recent report by the New York Times. The effort began seven years agoafter the CIA and five other agencies complained about the implicationsof a declassification order signed by President Clinton in 1995. About8,000 documents have been reclassified during the Bush presidency alone.

Documents that have been taken off the Archive's shelves through theprogram include decades-old reports from the State Department, as wellas historical documents that researchers photocopied and have kept intheir files.

The National Archives' Information Security Oversight Office launched aninvestigation into the program after receiving complaints fromhistorians and reviewing 16 reclassified documents, none of which werefound to warrant secrecy. Furthermore, the office had not been informedof reclassifications made through the program, even though a 2003 lawrequires reclassifications to be reported to the office. While theoffice cannot order that the documents be declassified, its director,William J. Leonard, is the President's top advisor on classificationpolicy and may urge the White House to terminate the program.

A hint of the reclassification program's existence came in 2004, when aState Department official informed the agency's Historical AdvisoryCommittee that the CIA had been reclassifying State Departmentdocuments. In that meeting, CIA officials "claimed the right to removedocuments from the open files that, in their view, had never been'properly declassified.'"

Under current executive orders, secret documents must be made publicafter 25 years unless there is a compelling reason to keep themclassified.

New York Times, U.S. Reclassifies Many Documents in Secret Review:

National Archives Information on Declassification:

Minutes of the State Department Historical Advisory Committee Meeting(Sept. 2004):

EPIC's Open Government Litigation Page:

EPIC's Litigation Under the Federal Open Government Laws:

[6] News in Brief

New Anti-Identity Theft Resource for Katrina/Rita VictimsEPIC has prepared an easy to use guide for those affected by thedevastation of last year's hurricane season. The involuntary relocationof 300,000 persons dispossessed many people of their property, means ofproviding identification, and community support for establishingidentity, thus placing those affected at a higher risk of identitytheft. To help, EPIC has created a resource to advise evacuees on whatto do if they suspect identity theft, and the best means of protectingthemselves from identity thieves. The best defense against identitytheft is monitoring your credit report and placing restrictions withcredit reporting agencies on providing information about you to creditgrantors or others.

EPIC's Identity Theft Resource for Hurricane Victims:

EPIC Urges Personal Data Be Scrubbed from Court Files
In comments to the federal judiciary, EPIC called for changes toprocedural rules to shield personal information in court files fromdisclosure. EPIC argued that the very purpose of public records -- theability of the individual to learn about the government -- is turned onits head when the records include excessive personal information.
Instead of being a citizen's window into government activities, theserecords are giving the government, law enforcement, and data brokers awindow into our daily lives. EPIC made several specificrecommendations, including preventing commercial uses of public records,limiting bulk access to records, and removing unique identifiers fromthe records.

EPIC Comments on Personal Data in Court Files:

EPIC Privacy and Public Records Page:

Canada to Establish Do-Not-Call ListThe Canadian Radio-television and Telecommunications Commission (CRTC)
is seeking comments from the public on the development of a nationaldo-not-call registry and telemarketing rules. Comments are due by May10th. The CRTC will also hold a public meeting on the proceeding fromMay 2-5, 2006 in Gatineau, Quebec.

Do-Not-Call Registry Press Release:

EPIC Warns Ethics Board of Attorneys' Use of Pretexting
In a letter sent to lawyers' ethics boards, EPIC warned that attorneysappear to be major purchases of "pretexting" services, and that use ofsuch services is unethical under state professional responsibilityrules. Pretexting is the practice of using false pretenses to trick acompany into releasing personal information. EPIC urged state boards toevaluate pretexting under ethics rules, and to issue opinions toattorneys advising them not to pretext or hire investigators who usepretexting to obtain information. Generally, ethical rules governingattorneys prevent them from engaging in fraud, dishonesty, ormisrepresentation. Since pretexting involves impersonation or otherfraud to obtain personal information, EPIC argued that ethics boardsmust advise attorneys not to engage in the practice.

EPIC Letter to Ethics Boards:

EPIC Pretexting Page:

Groups Urge San Francisco to Deploy Privacy-Friendly Wifi Network
The ACLU of Northern California, EFF, and EPIC submitted comments to SanFrancisco TechConnect urging it to establish a privacy-friendlymunicipal broadband service in the city. San Francisco TechConnect hasbeen tasked by Mayor Gavin Newsom to research options for a free orlow-cost municipal Internet service. In October 2005, the groupshighlighted privacy issues in a letter to TechConnect, and the agencyincorporated the issues as questions posed to providers in the city'sformal request for proposals. Provider proposals were due this week, andseveral were expected to pitch systems that would use personalinformation for advertising or otherwise implicate privacy interests.
The coalition comments urged TechConnect to set minimum standards forprivacy protection in the new network, including accommodations foranonymous and pseudonymous users, limits on the retention of personalinformation, and strong standards protecting users' interests when legaldemands are made for network data.

Coalition Letter on San Francisco Municipal Broadband:

San Francisco TechConnect:

UK Moves Closer To Mandatory National ID CardThe House of Commons last week voted to require that all Britons seekingpassports also obtain a government-issued identity card that wouldinclude biometrics such as a scanned fingerprint or a digital irisimage. Privacy advocates, including Privacy International, havevigorously opposed the plan. A report by leading academics from theLondon School of Economics indicates that the ID scheme will be costly,inefficient, and easily subverted. The proposal goes next to the Houseof Lords.

London School of Economics Report (pdf):

EPIC's National ID Cards and REAL ID Act Page:

Houston Proposes Cameras in Public and in Private PlacesHouston's Chief of Police proposed last week to install videosurveillance cameras in downtown streets, shopping malls, apartmentcomplexes and even private homes, in order to fight against crime and toremedy a shortage of police officers. Chief Harold Hurtt's intendedpurpose is to make people "feel safer" "in reality and perception."
However, most studies of video surveillance have shown that cameras donot reduce crime in public places, because criminals simply go elsewhereto commit their crimes out of camera range. Though the cameras may makeresidents "feel safer," their actual safety is unchanged.

Houston Chronicle Article on Proposed Cameras:

EPIC's Video Surveillance Page:

FTC Announces Settlement in CardSystems Security BreachOn February 23, the Federal Trade Commission announced that it hadreached a settlement with CardSystems Solutions, Inc., whose poorsecurity practices led to the breach of tens of millions of consumers'
personal information. The company's unnecessary storage of personaldata, along with its lack of network protections, allowed fraudsters torack up millions of dollars in fraudulent purchases. The settlementrequires CardSystems and its successor company, Solidus Networks, toimplement a stronger security program and be audited every two years forthe next twenty years.

FTC Press Release on CardSystems:

Text of the CardSystems Settlement Agreement (pdf):

EPIC's Page on Identity Theft:

[7] EPIC Bookstore: James Bamford's "The Puzzle Palace"

The Puzzle Palace: Inside America's Most Secret IntelligenceOrganization. Penguin Books, 1983.

"In this remarkable tour de force of investigative reporting, JamesBamford exposes the inner workings of America's largest, most secretive,and arguably most intrusive intelligence agency. The NSA has long eludedpublic scrutiny, but The Puzzle Palace penetrates its vast network ofpower and unmasks the people who control it, often with shockingdisregard for the law. With detailed information on the NSA's secretrole in the Korean Airlines disaster, Iran-Contra, the first Gulf War,and other major world events of the 80s and 90s, this is a brilliantaccount of the use and abuse of technological espionage."

EPIC Publications:

"Information Privacy Law: Cases and Materials, Secod 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

A Universal DNA Database: Do the Benefits Outweigh the Risks? TheNational Academies. Washington, DC. February 28, 2006. For moreinformation:

Call for papers for the Workshop on Generating Collaborative Research inthe Ethical Design of Surveillance Infrastructures. The deadline forproposals is March 1, 2006. For more information:

IAPP National Summit. International Association of PrivacyProfessionals. Washington, DC. March 8-10, 2006. For more information:

Call for papers for the 34th Research Conference on Communication,Information, and Internet Policy. Telecommunications Policy ResearchConference. Proposals should be based on current theoretical orempirical research relevant to communication and information policy, andmay be from any disciplinary perspective. Deadline is March 31, 2006.
For more information:

Beyond the Basics: Advanced Legal Topics in Open Source andCollaborative Development in the Global Marketplace. University ofWashington School of Law. March 21, 2006. Seattle, Washington. For moreinformation:

Making PKI Easy to Use. National Institutes of Health. April 4-6, 2006.
Gaithersburg, Maryland. For more information:

First International Conference on Availability, Reliability andSecurity. Vienna University of Technology. April 20-22, 2006. Vienna,Austria. For more information:

CHI 2006 Workshop on Privacy-Enhanced Personalization. UC IrvineInstitute for Software Research and the National Science Foundation.
April 22-23. Montreal, Quebec, Canada. For more information:

The First International Conference on Legal, Security and Privacy Issuesin IT (LSPI). CompLex. April 30-May 2, 2006. Hamburg, Germany. For moreinformation:

Computers, Freedom, and Privacy Conference (CFP 2006). Association forComputing Machinery May 2-5, 2006. Washington, DC. For more information:

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

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

BSR 2006 Annual Conference. Business for Social Responsibility. November7-10, 2006. New York, New York. 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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