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EPIC Alert 19.13 [2012] EPICAlert 13

EPIC Alert 19.13

======================================================================= E P I C A l e r t ======================================================================= Volume 19.13 July 19, 2012 ----------------------------------------------------------------------- Published by the Electronic Privacy Information Center (EPIC) Washington, D.C. "Defend Privacy. Support EPIC." ======================================================================== Table of Contents ======================================================================== [1] EPIC v. DHS One Year Later: EPIC Files Mandamus Motion, FOIA Request [2] Analysis: Opposition to Body Scanners Continues [3] EPIC Recommends Privacy Safeguards for Cybersecurity Program [4] EPIC Urges FTC to Develop Meaningful Mobile Privacy Protections [5] Congress Demands Answers from Law Enforcement on 1.3M Data Requests [6] EPIC in the News [7] Book Review: 'The Mobile Wave' [8] Upcoming Conferences and Events TAKE ACTION: Require the TSA to Follow the Law! - SIGN the Petition: - READ about EPIC v. DHS: - SUPPORT EPIC: ======================================================================== [1] EPIC v. DHS One Year Later: EPIC Files Mandamus Motion, FOIA Request ======================================================================== On July 15, 2011, in EPIC v. DHS, the US Court of Appeals for the DC Circuit ruled that the Transportation Security Administration violated federal law when it refused to conduct a public rulemaking over the use of whole body imaging scanners to screen airport passengers. The court noted that "few if any regulatory procedures impose directly and significantly upon so many members of the public," and ordered DHS to "act promptly on remand to cure the defect of its promulgation" of the body scanner program. More than a year later, DHS has not published the rule or accepted public comments on airport body scanners - nor has it given any indication of a date when it will do so. In response to DHS's continued delay, EPIC has filed a Petition for Writ of Mandamus to enforce the court's mandate. EPIC's petition argues that DHS's failure to publish a rule constitutes unreasonable agency delay, and that the court should order DHS to issue a public rule within 60 days, or else suspend the agency's rule pending the APA rulemaking procedure required by law. EPIC's petition also states that DHS failure to comply with the mandate shields the screening program from judicial review under the APA and leaves the matter in "administrative limbo." In addition to the petition, EPIC has filed a Freedom of Information Act request with DHS, seeking documents related to the agency's draft proposed rule for the body scanner program. According to DHS documents, the "staff responsible for drafting the proposed rule indicated [that] they had an initial, very preliminary draft prepared by August 11, 2011. . ." EPIC's FOIA request seeks disclosure of this document. An online petition posted in "We the People" demands that the White House "Require the Transportation Security Administration to Follow the Law!" Many organizations support the petition and other efforts to enforce the court's 2011 order that the TSA comply with APA rulemaking requirements. EPIC: Petition for Writ of Mandamus re: Body Scanners (Jul. 17, 2012) White House Petition: "Require the TSA to Follow the Law!" EPIC: EPIC v. DHS (Suspension of Body Scanner Program) EPIC: Whole Body Imaging Technology and Body Scanners ======================================================================= [2] Analysis: Opposition to Body Scanners Continues ======================================================================= One year after the DC Circuit Court of Appeals ordered the Department of Homeland Security to undertake a notice and comment rulemaking, the agency still has failed to act, but public opposition to airport body scanners has only grown. An online petition at the White House's "We the People" website - "Require the TSA to Follow the Law!" - has gathered over 13,000 signatures. The petition urges President Obama to force the TSA to begin immediately to take public comments. Public opposition to the scanners has continued to grow, in part, because the agency has failed to address concerns regarding the machines' effectiveness and safety. Top radiation experts expressed their concern about the airport screening program in a letter to Dr. John P. Holdren, the Assistant to the President for Science and Technology, citing heightened risks to older travelers, particularly female travelers who are "especially sensitive to mutagenesis-provoking radiation leading to breast cancer," HIV and cancer patients, children and adolescents, and pregnant women. According to the magazine Scientific American, Europe has banned the X-Ray body scanners used at US airports because a small number of cancer cases would result from scanning hundreds of millions of passengers per year. Deployment of the scanners has also been blocked in Middle Eastern countries, including both Islamic states and Israel, because of religious objections and concerns about the devices' effectiveness. Rep. John Mica (R-FL), Chair of the House Transportation Committee, told The New York Times earlier this year that the latest scanner tests found the results so disappointing that he had asked the House Appropriations Committee not to approve future purchases of the machines. "Unfortunately, the performance hasn't improved," he said. "It's at such a poor level we need dramatic changes in the whole program." White House Petition: "Require the TSA to Follow the Law!" NY Times: "Plot Raises Questions About Airport Security" (May 14, 2012) EPIC: Whole Body Imaging Technology EPIC: EPIC v. DHS (Suspension of Body Scanner Program) GAO: "TSA Penetration Testing of AIT" (Nov. 2011) ======================================================================== [3] EPIC Recommends Privacy Safeguards for Cybersecurity Program ======================================================================== EPIC has submitted comments to the Department of Defense, urging the agency to protect individual privacy when obtaining detailed Internet user information from the private sector. Under current DoD regulations, companies are encouraged to provide information about Internet users that may relate to "cyber incidents" and cyber "threats." The DoD's policy is similar to a controversial provision in the pending Cyber Intelligence Information Protection Act. EPIC's comments recommend that the DoD revise the regulations for the so-called "Cyber Security and Information Assurance" program so that: (1) the program remain voluntary; (2) "cyber incident" and "threat" are narrowly defined; (3) private companies are liable for disclosing excess user information; (4) the US Attorney General conduct annual, publicly available audits on the program; (5) the DoD adheres to federal privacy laws. The comments also warn the DoD to fully comply with the Freedom of Information Act, which has provided the public with important information about network security. The Department of Defense anticipates that over the next three years, an estimated 750 private companies will participate in the Cyber Security and Information Assurance program. The DoD will then report the information to the DoD's own Cyber Crime Center's "Information Sharing Environment." Information Sharing Environments, which exist within a number of federal, state, and local agencies, aggregate public and private sector data, which is then analyzed and disseminated to law enforcement. EPIC has a long history of advocating transparency and accountability in cybersecurity and government data collection programs, specifically through the enforcement of the Freedom of Information Act. In 2012 Senate testimony, EPIC Executive Director Marc Rotenberg stressed that FOIA provides the public with important information about network security, and warned that the National Security Agency has become a "black hole" for public information about cybersecurity. EPIC has also filed numerous FOIA requests for information regarding state "fusion centers," which, in pursuit of information concerning purported cyber threats, collect vast amounts of personal data on individuals suspected of no wrongdoing. EPIC has also submitted administrative agency comments in opposition to a proposed Department of Homeland Security program similar to the Department of Defense's program. EPIC: Department of Defense Cyber Security Comments (July 10, 2012) GPO Access: "Cyber Security and Information Assurance" GovTrack: Cyber Intelligence Sharing and Protection Act (HR 3523) EPIC: Cybersecurity and FOIA Senate Statement (Mar. 12, 2012) EPIC: Cybersecurity Privacy Practical Implications EPIC: EPIC v. NSA - Cybersecurity Authority EPIC: EPIC v. NSA: Google/NSA Relationship EPIC: Information Fusion Centers and Privacy EPIC: DHS Security Operations System of Records ======================================================================= [4] EPIC Urges FTC to Develop Meaningful Mobile Privacy Protections ======================================================================= EPIC has submitted comments to the Federal Trade Commission based on the agency's May 30 workshop on privacy disclosures in advertising and mobile services. The workshop, called "In Short: Advertising and Privacy Disclosures in a Digital World," addressed "online disclosure challenges, including making clear and conspicuous disclosures in social media and mobile marketing and making mobile privacy disclosures." EPIC's recent comments are the second set submitted to the FTC in connection with the workshop. Before the workshop, EPIC suggested that the agency address the connection between consumer disclosure notices and a substantive regime of privacy protections. EPIC's earlier comments also raised the possibility of companies' use of nonverbal, or "visceral," notice to gain users' attention. Because the workshop did not address substantive privacy protections, and discussed visceral notice only briefly, EPIC's follow-up comments reiterated many of these same suggestions. EPIC's comments also reviewed some of the well-known flaws with a notice-centric privacy regime, including the shortcomings of privacy notices and privacy icons, which, like privacy policies, are likely to be ignored by consumers. EPIC noted that when Carnegie-Mellon's Professor Lorrie Cranor "put ads before 1,500 people that had this [privacy] icon . . . the vast majority of them didn't recognize having ever seen it before, although surely they had." EPIC also encouraged the FTC to adopt a broader definition of "disclosure," one that includes not only point-of-purchase or just-in- time notice, but also transparency throughout the lifecycle of the product or service. "Meaningful transparency can facilitate greater user control over their personal information held by others in ways that are not possible (or are difficult) to accomplish using notice," EPIC said. Finally, EPIC urged the FTC to develop substantive privacy protections for users: "Notice, by itself, does not dictate any limitations on the collection, storage, manipulation, or dissemination of information." EPIC suggested that the FTC look to the principles contained in the White House's Consumer Privacy Bill of Rights or the Privacy Act. FTC: "In Short" Workshop (May 30, 2012) EPIC: Post-Workshop Comments to FTC (July 11, 2012) EPIC: Pre-Workshop Comments to FTC (May 11, 2012) White House: Consumer Privacy Bill of Rights (Feb. 2012) FTC: Report on Consumer Privacy (Mar. 2012) FTC: Report on Mobile App Privacy and Children (Feb. 2012) EPIC: Federal Trade Commission ======================================================================== [5] Congress Demands Answers from Law Enforcement on 1.3M Data Requests ======================================================================== In response to recent letters from Rep. Ed Markey (D-MA), nine mobile phone providers recently filed reports detailing law enforcement requests for user mobile phone records. These requests come from law enforcement agencies across all levels of government, and seek text messages, caller locations, and other information used in the course of investigations. The provider reports reveal that telecommunications companies turn over thousands of records per day in response to subpoenas, court orders, police emergencies, and other demands. The numbers likely understate the impact of these requests, since data from "tower dumps" includes information about the location of all devices connected to a particular mobile phone tower during a certain time period. The volume of law enforcement requests to mobile providers has increased as much as 16% over the last five years, and some carriers say they have rejected roughly 15% of all requests because they were legally questionable or unjustified. These numbers contrast sharply with data in recent Annual Wiretap Reports, published by the Office of the United States Courts, which reveal a gradual decline in federally granted wiretap orders over the last decade. The mobile phone tracking statistics demonstrate that law enforcement access to communications records has not decreased, but rather has shifted into an area with decreased judicial oversight and transparency. In another letter sent this month to US Attorney General Eric Holder, Rep. Markey requested detailed information from the Justice Department about the collection of sensitive mobile-phone records described in carrier reports. Markey reiterated the importance of the public knowing "how law enforcement is handling the records of consumers, especially those who are innocent, which may be collected as part of these information requests[,]" particularly with respect to collection and subsequent storage of these records, and whether innocent customer information is treated differently than information about targets of an investigation. Markey also asked Holder to identify the legal basis under which DOJ requests different categories of mobile phone records (i.e., geolocation, content of text messages, call records, customer information, wiretapping, etc). The storage and subsequent use of these mobile-phone records could have major implications for consumers. As EPIC recently argued in "friend of the court" briefs in the Fifth Circuit and New Jersey Supreme Court, historical and real-time mobile phone location records can reveal a substantial information about a person's habits, associations, beliefs, and actions. As a result, EPIC argued, disclosure of these records violates a reasonable expectation of privacy and thus requires a warrant based on probable cause under the Fourth Amendment. Rep. Ed Markey: Press Release on Mobile Data Collection (July 9, 2012) Rep. Ed Markey: Letter to AG Holder re: Data Collection (July 11, 2012) EPIC: In re Historic Mobile-Site Location Information EPIC: State v. Earls ======================================================================== [6] News in Brief ======================================================================== EPIC Objects to Facebook Settlement, Cites Failure to Benefit Class EPIC has asked a federal judge to reject a pending class action settlement over Facebook's use of "Sponsored Stories," stating that the settlement does not actually benefit Facebook users. In one letter to the court, EPIC explained that the settlement does not fix the problem with "Sponsored Stories," because the opt-out provision is buried in Facebook's Statement of Rights and Responsibilities. In a second letter, EPIC, joined by other consumer, privacy, and academic organizations, stated that the "cy pres" settlement funds should be distributed according to objective criteria, as courts have done in other similar cases. ("Cy pres" allows courts to allocate funds in class action settlements.) EPIC has routinely represented the interests of Facebook users. In 2009, EPIC led a coalition of consumer and privacy organizations in two complaints against Facebook, both of which ultimately led to the FTC's 2011 settlement with Facebook over outstanding privacy issues. EPIC: Letter to 9th Circuit re: Facebook Settlement (Jul. 12, 2012) EPIC: Letter to 9th Circuit re: "Cy Pres" Distribution (Jul. 12, 2012) FTC: Privacy Settlement with Facebook (Nov. 29, 2011) EPIC: Facebook Privacy Industry Association Publishes Guidelines for Drone Operators The Association for Unmanned Vehicle Systems International, an industry organization representing drone manufacturers and operators, has released an Industry "Code of Conduct". Compliance with the Code of Conduct is both voluntary and non-enforceable; the association acknowledges, however, that invasive drone surveillance technology poses a risk to the public, and specifically tasked users to "respect the privacy of individuals." In February 2012, EPIC, joined by over 100 other organizations, experts, and members of the public, submitted a petition to the FAA requesting a public rulemaking on the privacy impact of drone use in US airspace. The agency has yet to respond or address the issues raised. Association for Unmanned Vehicle Systems International AUVSI: Code of Conduct EPIC et al.: Petition to FAA re: Drone Rulemaking (Feb. 24, 2012) EPIC: Unmanned Aerial Vehicles (UAVs) and Drones Court Orders Twitter to Disclose User Records, Denies User Challenge A New York City judge has ordered Twitter to turn over user data for an Occupy Wall Street protester. The user had challenged the order under the Twitter Terms of Service, but the court ruled that the user had no standing. EPIC recently filed a "friend of the court" brief arguing that users of cell phone services have a reasonable expectation of privacy in their location records, which are subject to the same disclosure rules as Twitter data. NYC Criminal Court: Order on Twitter User Data (Jun. 30, 2012) Twitter: Terms of Service EPIC: In re Twitter Order Pursuant to 2703(d) EPIC: In re Historic Cell-Site Location Information Executive Order Allows DHS to Seize Private Communications Facilities The White House has released a new Executive Order seeking to ensure the continuity of government communications during a national emergency. The Executive Order grants new powers to the Department of Homeland Security, including the ability to collect certain public communications information. Under the Order the White House has also granted DHS the authority to seize private facilities when necessary, effectively shutting down or limiting civilian communications. In 2011, Senate Democrats considered similar provisions in cybersecurity legislation, which would have allowed the government to disconnect communications traffic in times of national security. Following public protest, Congress abandoned the proposal. White House: Executive Order re: Emergency Preparedness (Jul. 6, 2012) US Senate: Press Release on Proposed Cybersecurity Bill (Jan. 26, 2012) EPIC: Cybersecurity Privacy Practical Implications ======================================================================= [7] EPIC in the News ======================================================================= "EDITORIAL: TSA defies the courts - Rogue agency refuses to comply with the law." The Washington Times, July 18, 2012. "Personal info tapped with an app." USA Today, July 18, 2012. "TSA Fails to Comply With Year-Old 'Nude' Body-Scanner Court Order." Wired, July 16, 2012. "FBI Shopping for Social Networking Eves-dropping Software." Digital Journal, July 15, 2012. ‎ "White House order on emergency communications riles privacy group." Computerworld, July 10, 2012. "McCain's retooled Secure IT act still a privacy threat, critics say." Government Computer News, July 2, 2012. "Show Me Your Papers." The New York Times, July 1, 2012. For More EPIC in the News: ======================================================================= [8] Book Review: 'The Mobile Wave' ======================================================================= "The Mobile Wave: How Mobile Intelligence Will Change Everything," Michael Saylor Michael Saylor is a visionary with a big blind spot. The man whose company, MicroStrategy, first brought data mining to the public's attention in the late 1990s has trained his considerable focus on mobile devices and their power to radically alter every aspect of our lives, from medical care to personal finance to primary education. But Saylor has neglected one factor in his praise of mobile's "disruptive technology": Privacy. More specifically, Saylor's dream future appears to be one in which personal privacy is so irrelevant it doesn't merit discussion - and today's readers are lectured for even raising privacy as an issue. Saylor believes that the promise of the "Mobile Revolution" is akin to the huge societal leaps made during the Agricultural and Industrial Revolutions - minus the long wait times. He introduces each chapter on the impending changes wrought by phones and other mobile devices by discussing their historical precedents: e.g., first there was bartering, then coins, then paper money, and now digital cash. This premise is compelling, if repetitive, and allows readers to anticipate how he's going to move from, let's say, paper maps to GPSes to the "World Lens," in which any geographical place on Earth can be viewed in real time and in the user's native language. It's pretty easy to get sucked up in Saylor's breathless descriptions of mobile devices' potential to eliminate much crime, poverty, illiteracy, and political and societal repression from the entire world. So easy, in fact, that it takes some effort to pull back and consider all the data being collected and retained in this magnificent new society of ours. Saylor's short answer: Data brings out the best in us humans. He's fully prepared to enjoy the benefits of paperless libraries, "hyperfluid social networks," and devices that never shut off. Saylor frets a bit about government surveillance, but either is unable or unwilling to acknowledge that the private sector - indeed, the very company on which his technological authority and fortune is based - is equally guilty of data collection overreach. He states that "73 percent" of "'tech-forward'" people in a 2011 survey "said that using a mobile phone for payments made them worry about their privacy," but that "[t]his anxiety is misplaced." "Cases of companies abusing their access to consumers' privacy are so uncommon it is hard to think of any," he adds confidently. "The Mobile Wave's" extensive endnotes and references are nearly one-third as long as the text itself. Unlike most of today's nonfiction books, however, it has no index. Perhaps that editorial decision is ultimately fine for privacy advocates, since they would only find the most facile mentions of "privacy" in Saylor's book anyway. -- EC Rosenberg ================================ EPIC Publications: "Litigation Under the Federal Open Government Laws 2010," edited by Harry A. Hammitt, Marc Rotenberg, John A. Verdi, Ginger McCall, and Mark S. Zaid (EPIC 2010). Price: $75 Litigation Under the Federal Open Government Laws is the most comprehensive, authoritative discussion of the federal open access laws. This updated version includes new material regarding President Obama's 2009 memo on Open Government, Attorney General Holder's March 2009 memo on FOIA Guidance, and the new executive order on declassification. The standard reference work includes in-depth analysis of litigation under: the Freedom of Information Act, the Privacy Act, the Federal Advisory Committee Act, and the Government in the Sunshine Act. The fully updated 2010 volume is the 25th edition of the manual that lawyers, journalists and researchers have relied on for more than 25 years. ================================ "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 information privacy law allows instructors to enliven their teaching of fundamental concepts by addressing both enduring and emerging controversies. The Second Edition addresses numerous rapidly developing areas of privacy law, including: identity theft, government data mining and electronic surveillance law, the Foreign Intelligence Surveillance Act, intelligence sharing, RFID tags, GPS, spyware, web bugs, and more. Information Privacy Law, Second Edition, builds a cohesive foundation for an exciting course in this rapidly evolving area of law. ================================ "Privacy & Human Rights 2006: An International Survey of Privacy Laws and Developments" (EPIC 2007). Price: $75. This annual report by EPIC and Privacy International provides an overview of key privacy topics and reviews the state of privacy in over 75 countries around the world. The report outlines legal protections, new challenges, and important issues and events relating to privacy. Privacy & Human Rights 2006 is the most comprehensive report on privacy and data protection ever published. ================================ "The Public Voice WSIS Sourcebook: Perspectives on the World Summit on the Information Society" (EPIC 2004). Price: $40. This resource promotes a dialogue on the issues, the outcomes, and the process of the World Summit on the Information Society (WSIS). This reference guide provides the official UN documents, regional and issue-oriented perspectives, and recommendations and proposals for future action, as well as a useful list of resources and contacts for individuals and organizations that wish to become more involved in the WSIS process. ================================ "The Privacy Law Sourcebook 2004: United States Law, International Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price: $40. The Privacy Law Sourcebook, which has been called the "Physician's Desk Reference" of the privacy world, is the leading resource for students, attorneys, researchers, and journalists interested in pursuing privacy law in the United States and around the world. It includes the full texts of major privacy laws and directives such as the Fair Credit Reporting Act, the Privacy Act, and the OECD Privacy Guidelines, as well as an up-to-date section on recent developments. New materials include the APEC Privacy Framework, the Video Voyeurism Prevention Act, and the CAN-SPAM Act. ================================ "Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls" (EPIC 2001). Price: $20. A collection of essays, studies, and critiques of Internet content filtering. These papers are instrumental in explaining why filtering threatens free expression. ================================ EPIC publications and other books on privacy, open government, free expression, and constitutional values can be ordered at: EPIC Bookstore ================================ EPIC also publishes EPIC FOIA Notes, which provides brief summaries of interesting documents obtained from government agencies under the Freedom of Information Act. Subscribe to EPIC FOIA Notes at: ======================================================================= [9] Upcoming Conferences and Events ======================================================================= "Airport Body-Scanning: Will TSA Follow the Law?" 19 July 2012, Washington, DC. For More Information: php?eventid=9172. 2012 ASAP Training, with Focus on FOIA and Privacy. 1-3 August 2012, Washington, DC. Registration Closes July 27. For More Information: CONSENT policy conference: "Perceptions, Privacy and Permissions: the role of consent in on-lineservices." 6-7 September 2012, Cluj-Napoca, Romania. Call for papers by 7 June 2012. For More Information: DataCenter Dynamics Converged. 12 September 2012, Washington, DC. For More Information: washington-dc-2012?i=who-should-attend. 3rd Annual Privacy, ATI and Security Congress. 4-5 October 2012, Ottawa, ON. For More Information: events/information-privacy-security-congress-2012/. Amsterdam Privacy Conference. 7-10 October 2012, Amsterdam. For More Information: 34th International Conference of Data Protection and Privacy. 23-25 October 2012, Punta del Este, Uruguay. For more information: noticias/noticia-destacada. The Public Voice Conference. 22 October 2012, Punta del Este, Uruguay. For more information: PIPA Conference 2012: "Privacy on the Go." 1-2 November 2012, Calgary, Alberta. For More Information: "Computers, Privacy and Data Protection: Reloading Data Protection." 23-25 January 2013, Brussels. For More information: ======================================================================= Join EPIC on Facebook and Twitter ======================================================================= Join the Electronic Privacy Information Center on Facebook and Twitter: Join us on Twitter for #privchat, Tuesdays, 11:00am ET. Start a discussion on privacy. Let us know your thoughts. Stay up to date with EPIC's events. Support EPIC. ======================================================================= Privacy Policy ======================================================================= The EPIC Alert mailing list is used only to mail the EPIC Alert and to send notices about EPIC activities. We do not sell, rent or share our mailing list. We also intend to challenge any subpoena or other legal process seeking access to our mailing list. We do not enhance (link to other databases) our mailing list or require your actual name. In the event you wish to subscribe or unsubscribe your e-mail address from this list, please follow the above instructions under "subscription information." ======================================================================= About EPIC ======================================================================= The Electronic Privacy Information Center is a public interest research center in Washington, DC. It was established in 1994 to focus public attention on emerging privacy issues such as the Clipper Chip, the Digital Telephony proposal, national ID cards, medical record privacy, and the collection and sale of personal information. EPIC publishes the EPIC Alert, pursues Freedom of Information Act litigation, and conducts policy research. For more information, see or write EPIC, 1718 Connecticut Ave. NW, Suite 200, Washington, DC 20009. +1 202 483 1140 (tel), +1 202 483 1248 (fax). ======================================================================= Donate to EPIC ======================================================================= If you'd like to support the work of the Electronic Privacy Information Center, contributions are welcome and fully tax-deductible. Checks should 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 and First Amendment litigation, strong and effective advocacy for the right of privacy and efforts to oppose government regulation of encryption and expanding wiretapping powers. Thank you for your support. ======================================================================= Subscription Information ======================================================================= Subscribe/unsubscribe via web interface: Back issues are available at: The EPIC Alert displays best in a fixed-width font, such as Courier. ------------------------- END EPIC Alert 19.13 ------------------------

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