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EPIC Alert 13.05 [2006] EPICAlert 5


Volume 13.05 March 10, 2006

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

Table of Contents

[1] Former DOJ Official Doubted Legal Basis For NSA Program
[2] DOJ Inspector General Reports on Possible Intelligence Violations
[3] Phone Records and Pretexting Capture Attention of Congress, States
[4] Patriot Act Renewed, Some Civil Liberties Safeguards Added
[5] Congress Presses for More Information on NSA Surveillance Program
[6] News in Brief
[7] EPIC Bookstore: Glenn Reynolds's "An Army of Davids"

[8] Upcoming Conferences and Events

[1] Former DOJ Official Doubted Legal Basis For NSA Program

Documents obtained by EPIC this week in a Freedom of Information Actlawsuit against the Department of Justice reveal that a former topofficial in the Justice Department was skeptical of the BushAdministration's legal justification for its controversial warrantlesssurveillance program.

Among the released documents was a series of e-mails from formerAssociate Deputy Attorney General David S. Kris. Kris -- now ChiefEthics and Compliance Officer at Time Warner, Inc. -- provided hisformer colleague a legal analysis concluding that the Authorization forUse of Military Force Resolution likely did not authorize thesurveillance program. He also said that the DOJ's statutory arguments"had a slightly after-the-fact quality or feeling to them."

The DOJ refused to disclose much additional information related to itssecretive warrantless surveillance program. Most of the documentsreleased this week are previously published justifications for theprogram and transcripts of television appearances by the AttorneyGeneral.

The documents disclosed by the DOJ this week cover only a small fractionof the material at issue in the lawsuit. In legal papers filed the nightbefore the Justice Department's court-imposed deadline for releasing thedocuments, the agency requested a delay of four months to complete isprocessing of classified information related to the program.

The case arises from the New York Times' report in December thatPresident Bush secretly issued an executive order in 2002 authorizingthe National Security Agency to conduct warrantless surveillance ofinternational telephone and Internet communications on American soil.

EPIC submitted FOIA requests to four DOJ components just hours after thewarrantless surveillance program's existence was first reported. Notingthe extraordinary public interest in the program -- and its potentialillegality -- EPIC asked the agencies to expedite the processing of itsrequests. The DOJ agreed that the requests deseved priority treatment,but failed to comply with the FOIA's usual time limit of twenty workingdays. The court's February 16 order found that delay to be unreasonable,and ordered the Justice Department to disclose all responsive documentsby March 8, or to describe the information it sought to withhold andprovide legal justifications for non-disclosure.

"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."

EPIC's case has been consolidated with a lawsuit filed by the AmericanCivil Liberties Union and the National Security Archive concerning manyof the same documents.

DOJ's Motion Requesting More Time to Process Classified Material (pdf):

Judge Kennedy's Order (pdf):

More Information About EPIC's Case, EPIC v. Department of Justice:

[2] DOJ Inspector General Reports on Possible Intelligence Violations

In response to accounts of apparent intelligence violations uncovered byEPIC last year, the Department of Justice Inspector General has examinedthe FBI's procedures for reporting possible agent misconduct. Thefindings were relayed in a semiannual report to Congress about civilrights or civil liberties complaints made against Justice Departmentemployees.

According to the Inspector General, the FBI reported more than a hundredinstances of possible intelligence misconduct to the IntelligenceOversight Board (IOB) in the past two years. The report says a number ofthese matters were "significant," including one instance in which theFBI collected the full content of 181 phone calls instead of justbilling and toll records. The Inspector General also found that possibleviolations of the Foreign Intelligence Surveillance Act accounted fornearly 70 percent of reports to the board in 2005, up from 48 percent in2004.

The Inspector General's examination was sparked by a series of redactedFBI reports to the board obtained last year by EPIC through Freedom ofInformation Act litigation. The apparent intelligence violationsdescribed in that material included improper e-mail collection,eavesdropping on the wrong person's telephone calls, investigationsconducted for months without proper reporting or oversight, an FBIagent's seizure of financial records in violation of federal privacylaw, and an unidentified intelligence agency's unlawful physical search.

Under an executive order, inspectors general and general counselthroughout the intelligence community must inform the IntelligenceOversight Board about "intelligence activities that they have reason tobelieve may be unlawful or contrary to Executive order or Presidentialdirective." The board is required to forward to the Attorney Generalreports of activities that it finds likely to have violated laws,executive orders or directives.

In January, EPIC filed a Freedom of Information Act lawsuit against theDepartment of Justice for all reports of apparent intelligencemisconduct made to the Intelligence Oversight Board since 9/11. EPICalso requested reports forwarded from the board to the Attorney Generaland documentation of its responsive actions. The Attorney General'sOffice recently reported that it has no information responsive to EPIC'srequest for documents.

Department of Justice Inspector General, Report to Congress onImplementation of Section 1001 of the USA PATRIOT Act:

Executive Order 12863:

EPIC FOIA Note #9: Possible Patriot Act Abuses Released by FBI

EPIC FOIA Documents on Possible Intelligence Abuses (pdf):

[3] Phone Records and Pretexting Capture Attention of Congress, States

Federal and state lawmakers are focusing attention on protecting phoneand other customer records from pretexting. These new developments are aresult of a complaint and a petition EPIC filed with federal agenciesdetailing how phone records are sold through "pretexting." Since filingthose documents, Congress, the Federal Communications Commission, theFederal Trade Commission, and state attorneys general have all filedsubpoenas or brought lawsuits against pretexters.

The U.S. Senate and House Judiciary Committees approved legislationestablishing criminal penalties for obtaining phone records throughpretexting. In the House, the Judiciary Committee approved H.R. 4709,the bi-partisan "Law Enforcement and Phone Privacy Protection Act of2006." The legislation makes it a crime to acquire, purchase, or selltelephone or VoIP records without the account holder's consent.
Violators are subject to fines and up to 20 years in jail. The SenateJudiciary committee reported out the bi-partisan S. 2178, the "ConsumerTelephone Records Protection Act of 2006." The Senate legislation issimilar to the House version, but provides for less severe penalties.

In Illinois, the state Senate passed SB 2554. The Illinois bill differsfrom other anti-fraud efforts in that it broadly prohibits allpretexting by classifying it as an identity theft crime. Specifically,the measure prohibits the use of impersonation or pretexting to accessalmost any type of personal information held by others, or to gainaccess "to any record of the actions taken, communications made orreceived, or other activities or transactions" of another. The measurestill needs to be approved by the State's lower House. GovernorBlagojevich has already announced his support for the privacy bill.

In Florida, S. 1488 is moving swiftly through committees of the state'sSenate. The bill would prohibit using false statements in order toobtain phone records of another. In addition, Florida Attorney GeneralCrist has brought suit against Global Information Group for pretextingphone records. In the complaint, it is alleged that Verizon Wirelessalone received over 5,100 calls from Global Information Group'stelephone number.

In California, the Assembly Public Safety Committee held a hearing on SB202, a bill that would broadly prohibit the sale or purchase of phonerecords. It is sponsored by Senator Joe Simitian (D-San Mateo), authorof the state's security breach notification law. At the hearing,Assembly members were receptive to the bill, and it received supportfrom several telecommunications companies. The Committee held the billin order to digest last-minute amendments, but is likely to advance thelegislation to the floor at its next meeting.

EPIC Illegal Access to Phone Records Page:

HR 4709, the Law Enforcement and Phone Privacy Protection Act of 2006:

S. 2178, the Consumer Telephone Records Protection Act of 2006:

Illinois Senate Bill 2554:

Florida Senate Bill 1488:

[4] Patriot Act Renewed, Some Civil Liberties Safeguards Added

On March 9, Prseident Bush signed a bill renewing the Patriot Act underthe terms of a Senate-approved compromise measure. The measure makespermanent most of the provisions of the 2001 law, which was originallyslated to expire at the end of last year. Intense debate over the Act'sexpansion of search and surveillance powers delayed Congressionalaction, and lawmakers twice extended the deadline for the Act'sexpiration in order to continue debate.

A handful of the most controversial aspects of the law were curbed inits renewal. The government may no longer use "National SecurityLetters" to obtain library loan records. The letters, which do notrequire judicial oversight, require recipients to turn over information,while preventing them from speaking about it. However, the newlegislation eliminates an earlier provision that required recipients tonotify the FBI of any attorney they have consulted regarding receipt ofthe letter. The renewal also specifies that recipients of so-called"Section 215 subpoenas," which are issued under the Foreign IntelligenceSurveillance Act, can challenge gag orders attached to these subpoenasin court.

While the majority of the Patriot Act is now made permanent, twoparticular provisions are left with expiration dates. One is the FBI'spower to conduct "roving wiretaps" that eavesdrop on a target'scommunications across multiple phone numbers of email accounts. Anotheris the government's power to seize business records under the ForeignIntelligence Surveillance Act. Each of these provisions is now set toexpire at the end of 2009.

These limited safeguards, however, are still not enough in the eyes ofsome legislators. Senate Judiciary Chairman Arlen Specter (R-PA),Ranking Member Patrick Leahy (D-VT), and ten other senators haveintroduced a bipartisan bill that would reinstate safeguards that hadbeen removed from the renewal act during debate. The safeguards includeincreased judicial review of national security letters, requiring thegovernment to show a stronger connection to terrorism before searchingpersonal records, reducing the amount of time that the government canconduct a search before notifying its target, and adding a 4-yearexpiration date on the power to use National Security Letters.

EPIC's Patriot Act page:

The USA PATRIOT Improvement and Reauthorization Act of 2005:

S. 2369, Senate Bill Further Amending the Patriot Act:

[5] Congress Presses for More Information on NSA Surveillance Program

Members of Congress have continued to push for more information aboutthe Bush Administration's controversial warrantless surveillanceprogram.

Last week, the Senate Judiciary Committee held its second hearing on theoperation, asking legal experts to weigh in on the legality of thesurveillance program. The hearing followed Attorney General AlbertoGonzales' defense of the program last month, which he followed up with aletter to the committee to "clarify" his testimony. Among other things,the letter stated that the Administration's legal rationale for theprogram "has evolved over time," and emphasized that his testimony didnot address "other classified intelligence activities." Senator PatrickLeahy, the ranking Democrat on the committee, has demanded that theAttorney General clarify his statements.

The committee's chair, Senator Arlen Specter, has also been an outspokencritic of the Administration's failure to provide information about theprogram. He has urged fellow members of Congress to press for a courtruling on the legitimacy of the NSA's surveillance activities and imposegreater oversight over the program. This week, he also threatened tomove to block the Bush Administration's funding if Attorney GeneralGonzales is not more forthcoming with details about the program.

The Senate Intelligence Committee has voted not to launch an inquiryinto the program, but has proposed legislation that would form asubcommittee to oversee the NSA's surveillance activities. However, thelegislation would also permit the President to authorize warrantlesssurveillance for up to 45 days in cases where the interceptedcommunication involves someone suspected of being associated withcertain terrorist organizations and if at least one party to thecommunication is on foreign soil.

The House Intelligence Committee has also pushed for additionalbriefings so that they can consider making changes to the ForeignIntelligence Surveillance Act.

Attorney General Alberto Gonzales' letter to the Senate JudiciaryCommittee (pdf):

Press Release, "Leahy Presses Gonzales on Delayed 'Clarifications' toHis Testimony on Domestic Spying":

[6] News in Brief

Citibank Freezes Debit Cards After Major Fraud ActionAn undisclosed but possibly large number of Citibank customers inCanada, the UK, and Russia were recently left unable to use their ATMcards. Initial inquiries by customers to the bank were met with littleinformation, though the company now says that an unspecified number offraudulent withdrawals had been detected. Other banks, including WellsFargo, Bank of America, and Washington Mutual, have reportedly takensimilar steps. Some reports have indicated that the breach may haveoriginated with data stolen from OfficeMax, though OfficeMax denies itwas aware of any security breach.

EPIC's Identity Theft Page:

Ireland Halts National ID Card PlanIreland will not introduce national ID cards in response to such cardsin Britain. Last year, the Minister for Justice said he reluctantlyaccepted that Ireland might have to introduce identity cards whenBritain went ahead with its scheme. However, changes in the Britishlegislation mean that the new British ID cards will not affect Irishcitizens traveling between the two countries. After a protracted battlebetween national ID card advocates and opponents, British MPs voted lastmonth to create the cards. However, further legislation will be neededto make carrying the cards compulsory.

EPIC's National ID and REAL ID Cards page:

Intelligence Agencies Ordered to Halt Reclassification ProgramThe country's head archivist has demanded that intelligence agenciesstop reclassifying public documents held by the National Archives untilan investigation can be conducted into the practice. The New York Timesreported last month that a group of intelligence agencies hasreclassified thousands of documents since 1999, including decades-oldreports from the State Department and historical documents thatresearchers have photocopied and stored in their personal files. AllenWeinstein, Archivist of the United States, urged the intelligenceagencies to return as much reclassified material as possible to theNational Archives' shelves until the agency can complete its audit ofthe program.

National Archives Press Release on Reclassification Hold:

National Archives Information on Declassification:

EPIC's Open Government Litigation Page:

Google Moves Search Records Out of ChinaGoogle recently announced that it was moving records of users' searchesoutside of the borders of the People's Republic of China. The move isintended to protect users from having records of their searches seizedby the Chinese government, which often enforces strict speechrestrictions on the Internet. Google and other technology companiesrecently came under fire for censoring search results to accommodateChinese governmental policy. The removal of servers from China will notaffect the search engine's filtered search results, but willprevent the company from having to comply with orders to turn overinformation resulting in the imprisonment of dissidents. Yahoo has beenwidely criticized lately for its role in the imprisonment of dissidentsShi Tao and Li Zhi.

EPIC's 2004 Privacy and Human Rights Report on China:

U.S. State Department's 2005 Report on Human Rights in China:

Student Wins Open Government Suit, Gains Access to Email ListsA high school student in Kokomo, Indiana, won an open government lawsuitwon a case against the city to obtain an email list that he thought themayor was misusing. The student, Ryan Nees, wanted to ensure that thesubscriber list for the city's e-newsletter wasn't being misappropriatedto send political spam on behalf of the mayor, Matt McKillip. The cityargued that while Nees should have access to the email addresses, heshould not be allowed to keep a copy, since a provision of Indiana'sopen government laws limits the distribution of "addresses" in order toprotect residents' privacy. The court held that "addresses" did notcover email addresses, and that Nees should therefore be given a copy ofthe list.

Court Order in Nees v. McKillip (pdf):

Indiana's Access to Public Records Act:

EPIC's Open Government Page:

European Advisory Body: Webmail Scanning Can Be InterceptionThe Article 29 Data Protection Working Party, an independentconsultative body affiliated with the European Commission, issued anopinion stating that some email screening services may not comply withEuropean data protection legislation. In some cases, the group said,filtering based on content may constitute an "unjustifiable interceptionof communications." While EU laws allow email screening for viruses,spam or other content filtering could abridge individuals' free speechif it blocks legitimate emails from reaching their recipients. Scanningthe content of emails can also be a violation of data protection laws,unless Internet service providers or email service providers mustadequately inform email software users of the blocking.

Working Party Opinion on Privacy Issues and Email Screening Services(pdf):

Proposed New Jersey Ban on Anonymous Internet SpeechNew Jersey Assemblyman Peter Biondi has proposed a bill that wouldprohibit Internet users from posting content anonymously. The billrequires Internet service providers and providers of "interactivecomputer services" to collect a legal name and address from anyone whoposts information on the Internet through their sites. The law alsorequires service providers to have procedures in place to disclose auser's name and address if the user posts "false or defamatoryinformation" on a website. The bill draws no distinction betweendefamation and information that is merely untrue, nor does it accountfor the First Amendment right to anonymous free speech, as outlined bythe U.S. Supreme Court and New Jersey appeals courts.

Text of the New Jersey Bill Banning Online Anonymous Speech:

EPIC's Page on Free Speech:

EPIC's Page on Watchtower Bible v. Stratton (U.S. Supreme Court Case onAnonymous Speech):

Post Office Sends More Junk than Regular Mail

The United States Postal Service now delivers more junk than regularmail. In 2005, the volume of "Standard Mail" exceeded that of FirstClass, Priority, and Express Mail. Over 100 billion pieces of junk mailwere delivered, while the later categories accounted for 99 billion mailpieces. Junk mail, while weighing almost twice as much as regular mail,raised only $19 billion in revenue while regular mail raised $41billion. As a result of increasing junk mail volumes and fraud committedthrough sweepstakes, legislators from Missouri, Illinois, and New Yorkhave introduced Do-Not-Mail legislation. These bills are modeled on thehighly successful Do-Not-Call Registry, which also began in statelegislatures. But the legislation faces many opponents. In addition todirect marketers, Do-Not-Mail is disfavored by many who profit from junkmail, including advertisers, printers, news media organizations, lettercarriers, and the Postal Service itself.

USPS Annual Report:

EPIC Postal Privacy Page:

[7] EPIC Bookstore: Glenn Reynolds's "An Army of Davids"

Glenn Reynolds. "An Army of Davids: How Markets and Technology EmpowerOrdinary People to Beat Big Media, Big Government, and Other Goliaths"
(Nelson Current, 2006).

At last count, there were an estimated 30.2 million blogs. Many of theseweb sites begin and end with vacation photos or an excellent recipe forchile rellenos. But a few blogs establish followings that are comparableto small town newspapers or a popular talk show radio stations. Thesefollowings evolve from simple lists of subscribers into communities andeven political movements.

Glenn Reynolds is one of the celebrity bloggers whose web typically ranks up near the top of blog rankings, asmeasured by Technorati and others.

Reynolds's book, which is only partialy about the blog phenomenon,reveals many of the tricks of the political blogger -- well respectedpersonal hobbies (brewing beer, producing CDs), quirky political views(put more guns on planes), commitment to futurism (ideas on terraformingMars), and a general optimism about the ability of technology to levelthe playing field, eliminate the dinosaurs, and solve world problems.

There is much in the book to debate. But that is, after all, also thematerial of a good political blog.

Marc Rotenberg

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

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:

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:

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:

Third International Conference on Security in Pervasive Computing.
University of York. April 19-20, 2006. York, United Kingdom. For moreinformation:

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:

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:

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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