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EPIC Alert 13.09 [2006] EPICAlert 9


Volume 13.09 May 5, 2006

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

[1] Secret Surveillance at an All-Time High
[2] Coalition Comments on Phone Record Privacy; FTC Brings 5 Cases
[3] Federal Appeal Pushes for WHOIS Privacy
[4] Privacy, Technology Experts Convene for CFP 2006
[5] EPIC Welcomes New Board Members
[6] News in Brief
[7] EPIC Bookstore: Herbert N. Foerstel's "Surveillance in the Stacks"

[8] Upcoming Conferences and Events

[1] Secret Surveillance at an All-Time High

Two annual reports recently released by federal agencies show thatsurveillance activity conducted by the United States government hascontinued to rise dramatically since the 9/11 terrorist attacks, withuse of investigative powers under the Foreign Intelligence SurveillanceAct again at an all-time high.

According to the Department of Justice's 2005 Foreign IntelligenceSurveillance Act Annual Report, the government made 2,074 applicationsto the Foreign Intelligence Surveillance Court in 2005 for approval toconduct physical or electronic searches. Two of the applications werewithdrawn before the court decided whether to approve them, though oneof these applications was later resubmitted and approved by the court.
Though the court did not deny any of the applications, it did modify 61applications before approving them.

The number of secret surveillance applications approved is a markedincrease over 2004's total of 1,758, which itself had been more than inany previous year. The years 2003-2005 are the only ones since FISA's1978 passage that more secret surveillance applications were grantedthan federal wiretap warrants, which are issued only under a morestringent legal standard.

For the first time, this year's annual report included information aboutthe government's requests for access to business records and issuance ofnational security letters. The report stated that the government issued9,254 national security letters for information about 3,501 UnitedStates persons in 2005. The Justice Department also reported that itmade 155 applications for access to business records and production oftangible things in 2005, all of which were approved by the court.

In related news, a report issued by the Administration Office of theUnited States Courts shows that state and federal courts authorized1,773 interceptions of wire, oral, and electronic communications in2005, an increase of 4 percent over intercepts approved in 2004. Federalofficials requested 625 intercept applications in 2005, a 14 percentdecrease from the number requested in 2004. Only one wiretapapplication was denied last year.2005 Foreign Intelligence Surveillance Act Annual Report:

2005 Wiretap Report (pdf):


EPIC's Wiretap Page:

[2] Coalition Comments on Phone Record Privacy; FTC Brings 5 Cases

A coalition of consumer and civil liberties groups joined EPIC in filingcomments with the Federal Communications Commission that urge the agencyto adopt stronger protections for phone records. Phone records (andother types of personal information held by businesses) are vulnerableto "pretexting," a practice where an individual impersonates anotherperson, employs false pretenses, or otherwise uses trickery to obtaininformation. In 2005, EPIC identified 40 websites offering to obtainphone records through pretexting, and filed a petition with the FCC torequire stronger rules for protecting phone records (See EPIC Alert12.18 ). FCC grantedthe petition and may issue new rules to protect phone records this year.

The comments focus on the failure of phone carriers to shield customerinformation from private investigators and online data brokers who usepretexting. In particular, the coalition argued that the use ofbiographical identifiers as passwords, such as the Social Securitynumber and date of birth, has made phone records vulnerable topretexting. These identifiers are widely available to pretextersthrough subscriptions to commercial data broker services.

The coalition also warned the FCC that information sharing canexacerbate privacy risks. For instance, consumer lists can be used totarget the mature or other vulnerable populations. And the moreinformation is shared among different companies, the greater the riskthat corrupt insiders can access and sell the data.

Under current rules, phone companies can share phone records unless thecustomer opts out. Many carriers use inconvenient and burdensomesystems to allow individuals to opt out. The coalition argued thatsince carriers have frustrated opt out rights, the standard should beshifted to opt-in consent.

Under FCC procedural rules, any individual can file comments on thisissue until May 19th.

In related news, the Federal Trade Commission brought suit Wednesdayagainst five companies for obtaining phone records illegally. The suitsallege that the companies engaged in unfair business practices byobtaining phone records without consent. Earlier in the year, FTC sentwarning letters to 29 companies offering phone records online.

Coalition Comments:

EPIC Illegal Sale of Phone Records Page:

File Comments on the Proceeding:

FTC Page on Phone Records Lawsuits:

[3] Federal Appeal Pushes for WHOIS Privacy

EPIC has filed a friend of the court brief supporting the rights of .USdomain name holders not to publish their personal information on theInternet. In 2005, the Department of Commerce, which administers the .USdomain, banned users from using proxy services that would protectprivacy. EPIC's brief supports one user who is trying to block theCommerce Department policy. The EPIC brief argues that privacy expertshave made clear that personal information should not be routinelyaccessible in the WHOIS database and that the policy for .US providesmuch less protection when compared with the policies of other countriesfor country code domains.

Every person who registers an Internet domain name must provide personalcontact information to a registrar during the registration process.
This information, which includes a person's name, address, telephonenumber, and email address, is then published in a publicly availableonline database called WHOIS. Many registrars will offer a "proxyservice," meaning that the company lists its own contact information inWHOIS, and agrees to forward any message on to the domain name holder.

The .US domain is the United States' country code top level domain,administered by the National Telecommunications and InformationAdministration, a Commerce Department agency. In 2005, the agencyprohibited anyone with a .US domain name from using a registrar's proxyservice. Robert Peterson, who owned a .US domain and wanted to protecthis home address and phone number, sued in federal court to prevent thenew rule from going into effect.

EPIC filed a friend of the court brief in support of Peterson, arguingthat, in addition to violating Peterson's First Amendment rights tospeak anonymously, the NTIA rule runs counter to the international trendof protecting the privacy of users' WHOIS information. The country codetop level domains of other nations not only allow proxies, but someactively encourage their use. Other countries go even farther, byallowing users to opt out of personal information appearing in thedatabase or even preventing the information from being published in thefirst place.EPIC's Peterson v. NITA page:

EPIC's Amicus Brief:

[4] Privacy, Technology Experts Convene for CFP 2006

The 16th annual Computers, Freedom, and Privacy conference met this weekin Washington, DC. The event, presented by the Association for ComputingMachinery, covered a wide range of topics affecting technology and civilliberties.

An early plenary session discussed the possibility of federal privacylegislation in the United States. Michael Hinze, a lawyer at Microsoft,reiterated the software giant's call for broad federal privacylegislation. However, other panelists, including David Solove, a lawprofessor at George Washington University, noted that the federalproposals for privacy laws could weaken privacy protections by cancelingout stronger state law protections. Patrick Van Eecke, a practicinglawyer in Belgium and a lecturer at the University of London, analyzedthe European model of broad privacy laws, concluding that the Europeanmodel is not as uniform as it seems, and that it can sometimes lead toabsurd results in court. James Assey, a Democratic lawyer for the SenateCommunications Subcommittee, guessed that a broad privacy law would notlikely be forthcoming in this session of Congress, though more limitedbills on phone record privacy have better chances.

Another panel discussed camera surveillance systems. Sharon Franklin ofthe Constitution Project previewed a report, to be released later thismonth, that sets out guidelines and best practices for camerasurveillance, including that cameras should only be installed when thereis a clearly articulated law enforcement purpose, and not merely a vaguereference to "lowering crime." Gus Hosein of Privacy Internationaldescribed the proliferation of cameras (more than 4 million) in theUnited Kingdom, even though government reports had shown the systems hadlittle effect on decreasing crime. Melissa Ngo of EPIC discussed thelarge amount of federal homeland security funds being wasted on camerasystems. For example, Dillingham, Alaska has a population of 2,400, buthas just spent $202,000 in homeland security funds on 80 cameras - onefor every 30 people. Nicole Ozer of the ACLU of Northern Californiadiscussed grassroots campaigns against camera surveillance systems inthe states, including California, which includes a right to privacy inits state constitution.

On Thursday, a panel covered the privacy implications of databasescompiled in the wake of hurricanes Katrina and Rita. While VincentSylvain of Policamp told of his firsthand experiences in New Orleans andof the ways in which communications networks provided vital informationto residents and evacuees, Cindy Southworth of the Natonal Network toEnd Domestic Violence and Dr. Deborah Peel of Patient Privacy Rightsexplained how emergency database systems can easily put evacuees atfurther risk. Southworth explained how the evacuee locator databasescould easily aid a stalker or abuser, and argued that victims should beable to receive basic services anonymously, or be able to shield theiridentities from public databases. Peel described the emergencydatabases set up to catalog patient records for the hurricanes andidentified privacy vulnerabilities in each. The panel's moderator,Lillie Coney of EPIC, pointed out that evacuees were also subjected enmasse to background checks in the states in which they sought refuge,and suggested that emergency data gathering of all sorts should besubject to privacy safeguards.

A wide range of other topics were also covered in depth, includingelectronic voting systems, voter databases, network neutrality, and theeffects that blogging has on political campaigns.Official Website of Computers, Freedom, and Privacy 2006:

EPIC's Preemption Page:

EPIC's Video Surveillance Page:

EPIC's Identity Theft Resources for Katrina Victims:

[5] EPIC Welcomes New Board Members

EPIC is expanding both its board of directors and the EPIC advisoryboard. Professor Anita L. Allen and Professor Jerry Kang are the newestmembers of the EPIC board of directors. EPIC also welcomes StevenAftergood, James Bamford, Philip Friedman, Chris Larsen, Dr. DeborahPeel, and Professor Ronald Rivest to the EPIC advisory board.

"We are very pleased to welcome this distinguished group to EPIC," saidEPIC Executive Director Marc Rotenberg. "EPIC benefits from the insightand expertise of the individuals associated with the organization.
EPIC's new board members and advisory members have national reputationsfor their work on civil rights, open government, medical privacy,consumer privacy, and computer security."

Incoming EPIC board chair Barbara Simons expressed the organization'sappreciation for outgoing EPIC chair Oscar Gandy. "Oscar has been agreat friend and great inspiration to all of us at EPIC. We will misshim."

About the new members of the EPIC Board of Directors:

Anita L. Allen is the Henry R. Silverman Professor of Law and Professorof Philosophy at the University of Pennsylvania Law School. She is aleading expert on privacy law and contemporary ethics,legal philosophy,law and literature, women's rights, and race relations. Allen is theauthor of "Why Privacy Isn't Everything: Feminist Reflections onPersonal Accountability" (2003); "Privacy Law: Cases and Materials"
(with R. Turkington, West 2002); "Uneasy Access: Privacy for Women in aFree Society" (1988); and, "The New Ethics: A Guided Tour of the 21stCentury Moral Landscape" (2004). She is also a commentator for the MSNBCprogram, The Ethical Edge and writes a monthly column on ethics for theNewark Star Ledger. She is a graduate of Harvard Law School and receivedher Ph.D. in philosophy from the University of Michigan.

Jerry Kang is Professor of Law at UCLA. He is the author of"Communications Law & Policy: Cases and Materials" (Foundation 2005) andthe coauthor of "Race, Rights, and Reparation: The Law and the JapaneseInternment" (Aspen 2001). He is magna cum laude graduate of HarvardCollege and of Harvard Law School. He clerked for Judge William Norrison the Ninth Circuit Court of Appeals and then worked at the NationalTelecommunications and Information Administration on cyberspace policy.
His interdisciplinary articles on cyberspace privacy, pervasivecomputing, cyber-race, and mass media-induced implicit bias haveappeared in leading journals, such as the Stanford and Harvard LawReviews.

About the new members of the EPIC Advisory Board:

Steven Aftergood is a senior research analyst at the Federation ofAmerican Scientists. He directs the FAS Project on Government Secrecy,which works to reduce the scope of government secrecy, to accelerate thedeclassification of cold war documents, and to promote reform ofofficial secrecy practices. He writes and edits the email newsletterSecrecy News, which is read by more than 10,000 self-selectedsubscribers in media, government and among the general public.

James Bamford is an author and journalist, and one of the leadingexperts on the US intelligence agencies. His 1982 best seller "ThePuzzle Palace" was the first book to describe the inner workings of theNational Security Agency. His subsequent books "Body of Secrets" (2001)
and "A Pretext for War" (2004) have received widespread acclaim.
Throughout his career, Mr. Bamford has made effective use of the Freedomof Information Act. He was formerly Washington Investigative Producerfor ABC's World News Tonight.

Philip Friedman is a leading consumer attorney in Washington, DC. Hiscases have established important precedent concerning the legal remediesavailable to consumers, and also provided significant financial supportfor law school clinics and consumer advocacy organizations throughoutthe Washington, DC area. Mr. Friedman is also a specialist in electionlaw. Mr. Friedman is admitted to practice in the District of Columbia,Maryland and California. Mr. Friedman is also a member of the AmericanTrial Lawyers Association, Trial Lawyers for Public Justice, and theNational Association of Consumer Advocates.

Chris Larsen is the CEO and co-founder of Prosper, America's firstpeople-to-people lending marketplace. Prior to Prosper, Mr. Larsenco-founded and served as Chairman and CEO of E-LOAN. Mr. Larsen has alsobeen a tireless champion for privacy rights nationally and in Californiawhere he co-founded and financially backed Californians for Privacy Now(CFPN). Mr. Larsen and CFPN led and supported grassroots efforts tosafeguard consumers' privacy, and played a critical role in pressing theCalifornia state legislature to pass the strongest financial privacy lawin the nation.

Dr. Deborah Peel is the founder of Patient Privacy Rights, based inAustin, Texas, and one of the leading advocates for medical privacy inthe United States. A practicing psychiatrist for 27 years, sheunderstands that people will avoid or refuse necessary medical treatmentif they think others can see or use their private and personal medicalrecords. She has provided testimony to Congressional committees ongenetic privacy and medical record privacy. She recently led a coalitionof 26 organizations across the political spectrum that urged Congress toinsure that patients control access to their medical records in allelectronic health systems.

Ronald L. Rivest is the Andrew and Erna Viterbi Professor of ElectricalEngineering and Computer Science in MIT's Department of ElectricalEngineering and Computer Science. Professor Rivest He is a member ofMIT's Computer Science and Artificial Intelligence Laboratory (CSAIL), amember of the lab's Theory of Computation Group and a founder of itsCryptography and Information Security Group. He is also a founder of RSAData Security (now merged with Security Dynamics to form RSA Security)
and of Peppercoin. Professor Rivest has research interests incryptography, computer and network security, electronic voting, andalgorithms.EPIC Board Members:

EPIC Advisory Board:

[6] News in Brief

Massachusetts High Court OKs Workplace Hidden Camera SurveillanceThe Massachusetts Supreme Judicial Court recently held that a publiccollege employee who was videotaped changing clothes in a cubicle duringnon-working hours had no expectation of privacy in that workspace. Lastyear, EPIC filed a "friend of the court" brief in Nelson v. Salem StateCollege, a case raising the question of whether a public employer canconduct constant secret video surveillance of an employee. EPIC's
brief argued that society is prepared to recognize an expectation ofprivacy in the workplace as reasonable.

The Opinion in Nelson v. Salem State College:

EPIC's Nelson v. Salem State College Page:

EPIC's Amicus Brief:

EPIC's Workplace Privacy Page: Hampshire Holds Off on REAL ID RejectionThe New Hampshire Senate voted 14-9 to create a study group analyzingthe pros and cons of implanting the REAL ID Act, rather than rejectingthe program outright, as the New Hampshire House of Representatives did.
New Hampshire had been chosen as the pilot state for the federal REAL IDprogram, which mandates particular features to be built into statedrivers' licenses. The standardization process threatens to turn statedrivers' licenses into a de facto national ID card. The state-createdcommission will report its findings in November.

Granite State ID:

New Hampshire CASPIAN:

EPIC's National ID Page: York Seeks to Expand DNA CollectionIn New York, legislators are considering requiring everyone convicted offelonies and misdemeanors, including youthful offenders convicted incriminal court, to submit their DNA to a central database. Currently, 43states require DNA samples from people convicted of all felonies, butnone require samples from those convicted of all misdemeanors. Lastyear, EPIC filed a "friend of the court" brief that detailed significantprivacy and accuracy problems with DNA collections.

NY State's Proposed "All Felons DNA Database Act":

EPIC's Kohler v. Englade page: Department Wants AT&T Wiretap Suit DismissedThe Department of Justice has intervened in a lawsuit brought by theElectronic Frontier Foundation against AT&T, which claims that thetelecommunications company helped the National Security Agency operatean unlawful electronic surveillance program. The Justice Departmentclaims that it needs to be a party to the suit, and that it will ask thecourt to dismiss the case. The government agency claims that thelawsuit risks revealing information that could harm antional security.

EFF's Website on the AT&T Lawsuit:

EPIC's Domestic Surveillance Resources:

[7] EPIC Bookstore: Herbert N. Foerstel's "Surveillance in the Stacks"

Herbert N. Foerstel's "Surveillance in the Stacks: the FBI's LibraryAwareness Program" (Greenwood Press, 1991).

“Foerstel, himself one of the leaders in the effort to expose the FBI'snotorious `spies in the stacks' program, writes as a partisan of privacyrights with a well-earned distrust of the FBI's efforts to excuse itselffrom observing those rights. In fairness to the other side, however, healso gives full play to the arguments for national security and for theprevention of the flow of `sensitive' information into foreign hands. Inthis extensively documented and thoroughly researched tale, he offersmany stories of the courage and fortitude of librarians opposed to thisprogram, from the jailing of Zoia Horn to the eloquent indignation ofColumbia University's Paula Kaufman and the tenacious probing of JimSchmidt and the American Library Association's Intellectual FreedomCommittee. Less happy is his picture of the heavily politicized NationalCommission on Libraries and Information Science (NCLIS) and others whohave acquiesced to the spying. The chapters on the politicalramifications of the program and the legal context of libraryconfidentiality are also valuable
although it is possible to argue withsome of Foerstal's conclusions. But this illuminating, cautionary workis bound to remain an authoritative source on a vitally importantsubject.”

--­Library Journal
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

Conference on Data Protection and Security: A Transnational Discussion.
International Association of Young Lawyers. May 5-6, 2006. Washington,DC. For more 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:

RFID Application Domains and Emerging Trends. European CommissionInfomration Society. May 15-16, 2006. Brussels, Belgium. For moreinformation:

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 Infomration Society. June 2, 2006. Brussels, Belgium. Formore 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:

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:

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:

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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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