EPIC Alert 19.16
E P I C A l e r t
Volume 19.16 August 30, 2012
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 EPIC FOIA Docs: DHS Continues Pursuit of Crowd Surveillance
 EPIC Supports Moratorium on RFID Student Tracking
 Judge Rejects Settlement in Facebook 'Sponsored Stories' Case
 European Consumer Organization Backs New EU Privacy Effort
 Republican Party Platform Seeks To Limit US Drone Surveillance
 News in Brief
 EPIC in the News
 Book Review: 'Privacy'
 Upcoming Conferences and Events
TAKE ACTION: Join the Coalition to Oppose RFID Tracking in Schools!
READ the Position Paper:
LEARN about RFID Tracking: http://epic.org/privacy/rfid/
SUPPORT EPIC: http://epic.org/donate
 EPIC FOIA Docs: DHS Continues Pursuit of Crowd Surveillance
New documents obtained by EPIC under the Freedom of Information Act
provide further details on a DHS plan to use multiple surveillance
technologies to search people in public spaces. The documents
obtained under a FOIA request for records related to the development
and implementation of technology to "virtually frisk"
sidewalks without their knowledge or consent.
Among the documents obtained by EPIC is a 145-page "Preliminary Design
Review" report for prototyping the so-called "BomDetec" system, which
would integrate "four existing sensor technologies" - "intelligent
video, backscatter x-ray, Millimeter Wave Radar (MMWR Radar) and
Terahertz Wave (THz)" - inside a "common ruggedized surveillance
vehicle." Combined, these technologies would provide "visual tracking"
and metal, shape and chemical identification. A possible
the sensor suite is Spectroscopic FLIR, which would further test the
Terahertz technology can
be used to detect every substance's unique
"fingerprint", and use that fingerprint to determine exactly what an
individual is carrying
or has come into contact with. According to
the documents, the sensor suite "has been tested . . . at stand-off
distance of 3m
and real time (<1 sec) scanning." DHS's goal is to use the scanners at up to 50 meters. The BomDetec specs state that the surveillance vehicles would be used "at the entrance to a protected facility, such as a military facility, an embassy or check point." However, the records released by DHS give further insight into the agency's plans to use the technology as part of a comprehensive crowd-screening program. Previous EPIC FOIA work produced records about a similar DHS program, which the government agency subsequently claimed it had canceled. The new documents obtained by EPIC show that DHS was still pursuing mobile crowd surveillance as recently as 2011, and that the scanning suite could be deployed at subway platforms, sidewalks, sports arenas, and shopping malls. Recent news reports indicate that DHS also may be pursuing terahertz technology for use as primary screening at airports. EPIC is seeking records related to these developments. EPIC: FOIA Documents on "Electronic Frisking" http://epic.org/foia/dhs/terahertz-frisking.html#documents
EPIC: Electronic Frisking
EPIC: EPIC v. DHS (Mobile Body Scanners FOIA Lawsuit)
EPIC: Whole Body Imaging Technology and Body Scanners
 EPIC Supports Moratorium on RFID Student Tracking
EPIC, in conjunction with the group Consumers Against Supermarket
Privacy Invasion and Numbering (CASPIAN) and other leading privacy
civil liberties organizations, has issued a Position Paper on the use
of RFID in schools. Radio Frequency Identification is
and tracking technology "designed to monitor physical objects," such as
commercial products, vehicles, and animals.
Some school districts are
proposing to use RFID ID tags to monitor students, teachers, and staff.
The report warns of significant
privacy and security risks if schools
adopt RFID tracking, and if the tracking is adopted, the position paper
urges schools to
adopt robust privacy safeguards.
Radio Frequency Identification is an identification tracking
technology "designed to monitor physical
objects," such as commercial
products, vehicles, and animals. Some school districts are proposing
to use RFID ID tags to monitor
students, teachers, and staff. "Chipping"
students, or requiring students to wear RFID badges, raises significant
privacy and security
concerns. These badges can reveal intimate details
such a visit to a counselor or nurse's office. EPIC's position paper
that, if any information from the RFID badge is compromised,
"a student's location could be monitored" by many different malefactors,
including stalkers and pedophiles.
The position paper states, "certain uses of RFID should be flatly
prohibited," including RFID
without the user's knowledge or consent,
coercion of or discrimination against individuals who refuse to
participate in the RFID
program, and covertly hidden or installed RFID
chips. Moreover, EPIC and the coalition state "RFID implementation must
by Principles of Fair Information Practice," and "schools
should not implement RFID systems" without first undergoing a "formal
safety, technology, and privacy impact assessment."
EPIC has a longstanding interest in protecting individuals against RFID
In 2006 and 2007, EPIC submitted comments to federal agencies,
recommending against the use of RFID technology to track air travelers.
The State Department subsequently made changes to the proposed
"e-Passport" program to address privacy and security concerns. In
EPIC, in a joint letter with the EFF and the ACLU of Northern
California, urged the board of the Brittan school district
an experimental program using mandatory RFID badges to track children's
movements. In 2004, EPIC made recommendations
to the Federal Trade
Commission on the commercial use of RFID technology.
CASPIAN et al.: Paper on the Use of RFID in Schools
(Aug. 21, 2012)
Consumers Against Supermarket Privacy Invasion and Numbering (CASPIAN)
San Antonio Express-News: Article on Student RFID Tags (May 26, 2012)
EPIC: PASS Card Comments to Department of State (Jan. 2007)
EPIC: Comments on Air Traveler RFID Technology (Aug. 2007)
EPIC et al.: Joint Letter on RFID Student Tracking (Feb. 2005)
EPIC: Guidelines to FTC on Commercial RFID Technology (July 2004)
EPIC: Radio Frequency Identification (RFID) Systems
EPIC: Children and RFID Systems
EPIC: Student Privacy
 Judge Rejects Settlement in Facebook 'Sponsored Stories'
A federal judge has rejected the proposed settlement
in Fraley v.
Facebook, a class-action lawsuit over Facebook's unauthorized use of
user images as part of the site's "Sponsored
program. Judge Richard Seeborg of the 9th Circuit Court of Northern CA
denied the motion for preliminary approval
of the settlement agreement
on August 17 after expressing skepticism about the terms of the
settlement at a previous hearing. EPIC,
along with several other
consumer privacy organizations, had previously filed a letter opposing
the proposed settlement on the
grounds that it provided little benefit
to Facebook users and that the "cy pres" allocation was not aligned
with the interests
of the class.
"Sponsored Stories" was the subject of two separate complaints EPIC and
other consumer privacy organizations filed
with the Federal Trade
Commission in 2009 and 2010. These complaints resulted in a significant
consent order approved by the FTC
August 10. Under the FTC consent
order, Facebook is prohibited from misrepresenting the privacy or
security of users' personal
information, and must (1) obtain users'
affirmative, express consent before sharing their information in a way
that exceeds their
privacy settings; (2) establish a comprehensive
privacy program; (3) ensure that Facebook cannot access personal
a user deletes an account; and (4) submit to
independent audits every two years for the next 20 years.
Under the doctrine of "cy
pres," a court may "distribute unclaimed or
non-distributable portions of a class action settlement fund to the
'next best' class
of beneficiaries." This distribution process is
ultimately guided by (1) the objectives of the underlying statute, and
interests of the silent class members. A proposed "cy pres"
distribution should be rejected when it fails to "provide the 'next
best' distribution." In the Facebook case, EPIC and others argued
that the organizations excluded from the distribution have provided
significant benefits to the class members, i.e., Facebook users.
In his opinion dismissing the motion for preliminary approval,
Seeborg noted the proposed settlement in Fraley v. Facebook is
problematic for several reasons. First, Judge Seeborg stated
pres "provides no monetary relief directly to class members", and that
the relatively small $10 million payment for roughly
70 million class
members was not sufficiently justified where the statutory damages
would be $.14 per plaintiff. Judge Seeborg
also maintained that the
injunctive relief was not sufficiently described, and that the fee
settlement was disproportionate to
the class relief granted. The
parties will now revise their proposed settlement to address Judge
Court: Order Denying Approval of Settlement (Aug. 17, 2012)
EPIC et al.: Letter to Judge of Northern District of CA (Jul. 11, 2012)
FTC: Press Release on Facebook Settlement (Aug. 10, 2012)
EPIC: Facebook Privacy
 European Consumer Organization Backs New EU Privacy
The European Union consumer organization BEUC has
endorsed the European
Commission's new proposed General Data Protection Regulation. In a new
position paper the BEUC BEUC proposes
changes to clarify and strengthen
the privacy law, in order to "ensure the new EU framework is effective
and becomes the global
standard of personal data protection and
privacy." The proposed revisions aim to reinforce the "user-centered
approach" while retaining
the existing protections provided by the
Regulation. BEUC represents more than 40 independent, national consumer
in more than 30 European countries.
The General Data Protection Regulation, officially released in January
2012, is intended to
modernize the EU Data Protection Directive, which
was adopted in 1995 The topics of the new General Data Protection
include (1) Rights of Data Subjects (Transparency, Access to
Data, Rectification, Erasure, Right to Object to Profiling); (2)
of Companies (Data Security, Data Protection Assessment);
(3) Increased Powers for Data Protection Agencies and New Efforts for
Coordination and Collaboration; and (4) New Remedies and Sanctions.
The Trans-Atlantic Consumer Dialogue, or TACD, a coalition
of US and
European consumer groups of which EPIC is a member, has already
expressed support for the effort to update European privacy
The TACD submitted a letter for the record at a September 2011 House
hearing on "Internet Privacy: The Impact and Burden of
This letter stressed the importance of the EU Data Directive as a
"concise statement of principles that make clear
to business and
consumers what their rights and obligations are." The TACD also
emphasized the "great urgency in the need for the
US Congress to address
meaningfully the new challenges to privacy."
BEUC: Data Protection Position Paper (Jul. 27, 2012)
Bureau Europeen des Unions de Consommateurs
EPIC: EU Data Protection Directive
Trans-Atlantic Consumer Dialogue
TACD: Letter to House Commerce Subcommittee (Sept. 14, 2011)
 Republican Party Platform Seeks To Limit US Drone
The 2012 Republican Party Platform now advocates
limits on government use of unmanned drones in US airspace. According
to the official party platform document,
"We support pending legislation
to prevent unwarranted or unreasonable governmental intrusion through
the use of aerial surveillance
or flyovers on U.S. soil, with the
exception of patrolling our national borders." The platform was
announced at the 2012 Republican
Earlier in 2012, Sen. Rand Paul (R-KY) and Rep. Austin Scott (R-GA)
introduced legislation to limit US aerial
drone surveillance. The
joint bills would require law enforcement to receive a warrant before
conducting any criminal surveillance
of individuals in most
circumstances. The US House also approved an amendment to the National
Defense Authorization Act of 2013,
introduced by Rep. Jeff Landry
(R-LA), prohibiting information collected without a warrant by
Department of Defense drones from
being used in court. Rep. Ed Markey
(D-MA) has also proposed comprehensive legislation for drones.
At a July 2012 congressional
hearing on domestic drone use, EPIC
Associate Litigation Counsel Amie Stepanovich testified on the privacy
implications of domestic
drone use, stating that "the privacy and
security concerns arising from the use of drones needs to be
addressed," and calling for
specific legislative safeguards to limit
drone surveillance. A 2012 re-authorization bill for the Federal
requires the agency to develop rules governing
the operation of drones within the US. In February, EPIC, joined by
over 100 organizations,
experts, and members of the public, petitioned
the FAA to begin a rulemaking on the privacy impact of drone use. The
yet to respond to EPIC's petition or address other privacy
GOP: Official 2012 Republican Platform
EPIC: Unmanned Aerial Vehicles (UAVs) and Drones
US House: Hearing on Drones and Homeland Security (Jul. 19, 2012)
EPIC: Testimony on Drones before US House (Jul. 19, 2012)
FAA: 2012 Air Transportation Modernization and Safety Improvement Act
EPIC: APA Petition to the FAA (Feb. 24, 2012)
US House: Preserving Freedom from Unwarranted Surveillance Act of 2012
US House: Drone Surveillance Amendment to the NDAA
Rep. Ed Markey: Press Release on Draft Drone Legislation (Aug. 1, 2012)
 News in Brief
FTC Proposes Additional Changes to Children's Online Privacy Rule
The Federal Trade Commission has proposed additional changes
Children's Online Privacy Protection Act Rule. The revised rule
would clarify that operators of websites who use advertising
services and plug-ins that collect data about children would have to
comply with COPPA. The rule would also allow mixed-audience
age-screen visitors, and would clarify the circumstances in which
persistent identifiers such as cookies or IP addresses
"personal information." The revisions modify an earlier rule that was
proposed by the FTC in September 2011. EPIC
commented on the September
2011 rule, noting that "the proposed revisions update the COPPA Rule by
taking better account of the
increased use of mobile devices by users
and of new data collection practices by businesses."
FTC: Press Release on Proposed
COPPA Changes (Aug. 1, 2012)
FTC: Text of 2012 Revisions (Dec. 23, 2011)
FTC: Initial Press Release on COPPA Changes (Sept. 15, 2011)
FTC: Text of Sept 2011 COPPA Rules (Sept. 15, 2011)
EPIC: Comments to FTC on Sept 2011 Revisions (Dec. 23, 2011)
EPIC: Testimony Before US Senate on COPPA (Apr. 29, 2010)
EPIC: Comments to the FTC on COPPA Rule Review (Jul. 9, 2010)
EPIC: Children's Online Privacy Protection Act
Federal Court Applies Video Privacy Law to Streaming Services
A California federal district court has held that the Video Privacy
Protection Act applies to companies that provide video streaming
services over the Internet. The opinion, which is the first to
the issue, relies on the forward-looking nature of the law, and states,
"Congress was concerned with protecting the confidentiality
information about viewing preferences regardless of the business model
or media format involved." EPIC testified on
the VPPA before the Senate
Judiciary Committee in early 2012 and recommended several ways that
Congress could strengthen the Act,
including applying it to streaming
services and allowing users to inspect the information that video
providers collect about them.
The US Senate is considering an amendment
that would weaken the consent provision of the law by allowing
companies such as Netflix
to obtain blanket consent to routinely
disclose a consumer's video viewing records.
US District Court of N. CA: Ruling in VPPA
Case (Aug. 10, 2012)
EPIC: Testimony before US Senate on VPPA Changes (Jan. 31, 2012)
US Senate: Proposed Amendment to VPPA (Jul. 25, 2012)
EPIC: Video Privacy Protection Act
Government Standard for Vehicle 'Event Data Recorders' Will Go Forward
The National Highway Traffic Safety Administration has
petition for rulemaking that would delay the effective date of national
requirements for event data recorders. As a result,
the US government's
requirements that the devices be installed in new vehicles will go into
effect September 1, 2012. Commonly
referred to as "black boxes," event
data recorders collect and store vehicle operation information before,
during, and after a
vehicle crash, including vehicle location, driver
speed, seat belt use, and number of vehicle occupants. In 2003 and
urged the agency and the automotive industry to protect
privacy interests when deploying event data recorders.
Notice of NHTSA Denial of Petition (Aug. 12, 2012)
NHTSA: Event Data Recorders
EPIC: 2003 Comments Before NHTSA on Event Data Recorders (Feb. 2003)
EPIC: 2004 Comments Before NHTSA on Event Data Recorders (Aug. 2004)
EPIC: Drivers Privacy Protection Act
Supreme Court Upholds, for the Moment, Controversial State DNA Law
US Supreme Court Chief Justice John Roberts has granted
stay of a decision by the Maryland Supreme Court, which would have
invalidated that state's new DNA collection law.
The Maryland court
ruled in April that the warrantless collection of DNA from an arrestee
constituted an unreasonable search. Justice
Roberts, however, wrote that
there was a "reasonable probability" that the Court would agree to
review the case and that the state
of Maryland would suffer
irreparable harm if the law is invalidated in the interim. EPIC has
filed "friend of the court" briefs
in several DNA privacy cases,
including United States v. Pool (2011), Kohler v. Englade (2006), and
Maryland v. Raines (2003).
US Supreme Court: Stay of Decision in Maryland v. King (Jul. 30, 2012)
State of MD Supreme Court: Decision in MD v. King (Apr. 24, 2012)
EPIC: "Friend of the Court" Brief in US v. Pool (Jul. 25, 2011)
EPIC: US v. Pool
EPIC: "Friend of the Court" Brief in Kohler v. Englade (Oct. 2005)
EPIC: Kohler v. Englade
EPIC: "Friend of the Court Brief" in Maryland v. Raines (Apr. 2004)
EPIC: The DNA Act
EPIC: Genetic Privacy
 EPIC in the News
"Aggressive use of personal data by political campaigns prompts alarm
for privacy advocates." Free Speech Radio News, Aug. 29,
"License plates scanned at border, data shared with car insurance
group." Ars Technica, Aug. 22, 2012.
"Federal Agencies Trade Motorist Data to Insurance Companies."
Thenewspaper.com, Aug. 24, 2012.
"7 reasons the FTC could audit your privacy program." Computer World,
Aug. 21, 2012.
"Experts Join with CASPIAN to Oppose RFID Tracking in Schools." PR Web,
Aug. 21, 2012.
"U.S. Customs Tracks Millions Of License Plates And Has Shared Data
With Insurance Firms." Forbes, Aug. 21, 2012.
"Privacy Questions Accompany Automated License Plate Scanners."
Information Week, Aug. 17, 2012.
For More EPIC in the News:
 Book Review: 'Privacy'
"Privacy," Garret Keizer.
Privacy is like a pregnant woman on a bus. Jesus was a privacy
advocate. Privacy is fundamentally an elitist concept, and yet
essential to human dignity. You puzzle over these disparate theories?
Be prepared for an entire book in which privacy, usually portrayed
non-partisan issue, veers wildly to the political left. "Privacy" is a
high-speed ideological dive-and-swoop through history,
technology, politics and world mythology, all wrapped up in a tiny,
pretty paper package not much bigger than an e-reader.
The net effect
is equal parts bourgeois guilt and squirmy 21st-century cultural
The crux of essayist and former Guggenheim
Fellow Garret Keizer's new
book won't please privacy activists who lean Libertarian. Privacy, he
contends, is not only a human
right, but also a social justice issue.
"You and I belong to a society in which the gap between the rich and
the poor is widening
even as our personal privacy shrinks," he begins.
"If . . . the middle class is vanishing, then . . . the privacy of all
few people is vanishing with it."
Keizer is resolute and fierce in his humanistic polemics, borrowing
from privacy scholars like
Jeffrey Rosen, as well as far-flung sources
like Ursula K. LeGuin, Bob Dylan, John Donne, Elizabeth I, and Andy
reiterates that all people "are important and worthy of
preservation," and thus all have a right to be "let alone" (as opposed
to "left alone"), just as they have rights to air and water. And,
according to Keizer, nearly every aspect of modern society is
to offer humanity its rights.
Keizer aces all the easy privacy targets (social media and Google are
devices are alienating; the poor are denied many
privacy rights the middle class take for granted) but then tosses in
more volatile issues, particularly with respect to women and
feminism. He quotes feminist scholar Catherine MacKinnon ("'This right
of privacy is a right of men "to be let alone" to oppress women one at
a time'"), and asks, "What is a woman?" vis a vis gender
Does he have answers? Not really.
"Privacy" stuns, both in the condemnation of first-world culture and
complicity in their own oppression. But this book's delicate
form factor should have made Keizer a little more circumspect about
many pop-culture, mythological, historical, and deconstructionist
references he's packed into it. It's also a little heavy
transient current events: Relying on the myopia of recent news cycles is
not a fabulous way to preserve a book's
shelf life, regardless of the
basic content. Keizer's moral certitude about his positions on privacy
deserves more examination
than it gets here.
-- EC Rosenberg
"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
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).
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
law, including: identity theft, government data mining and electronic
surveillance law, the Foreign Intelligence Surveillance
intelligence sharing, RFID tags, GPS, spyware, web bugs, and more.
Information Privacy Law, Second Edition, builds a cohesive
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
75 countries around the world. The report outlines legal protections,
new challenges, and important issues and events relating
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).
reference guide provides the official UN documents, regional and
issue-oriented perspectives, and recommendations and proposals
future action, as well as a useful list of resources and contacts for
individuals and organizations that wish to become more
involved in the
"The Privacy Law Sourcebook 2004: United States Law, International
and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price:
The Privacy Law Sourcebook, which has been called the "Physician's Desk
Reference" of the privacy world, is the leading resource
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 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:
 Upcoming Conferences and Events
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
The Constitution Project: "Fusion Centers: Concerns and Recommendations
for Information Sharing Post 9/11." 11 September 2012, Washington, DC.
More Information: Email Larry Akey, firstname.lastname@example.org.
DataCenter Dynamics Converged. 12 September 2012, Washington, DC. For
More Information: http://www.datacenterdynamics.com/conferences/2012/
Cato Institute's 11th Annual Constitution Day Conference, 18 September
2012, Washington, DC. For More Information:
3rd Annual Privacy, ATI and Security Congress. 4-5 October 2012,
Ottawa, ON. For More Information: http://www.rebootconference.com/
Amsterdam Privacy Conference. 7-10 October 2012, Amsterdam. For More
34th International Conference of Data Protection and Privacy. 23-25
October 2012, Punta del Este, Uruguay. For more information:
The Public Voice Conference. 22 October 2012, Punta del Este, Uruguay.
For more information: http://www.thepublicvoice.org/.
PIPA Conference 2012: "Privacy on the Go." 1-2 November 2012, Calgary,
Alberta. For More Information: http://privacyconference2012.ca.
"Computers, Privacy and Data Protection: Reloading Data Protection."
23-25 January 2013, Brussels. For More information:
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