EPIC logo

                          E P I C  A l e r t
Volume 10.12                                              June 19, 2003

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


Table of Contents

[1] Appeals Court Upholds DOJ's Secret 9/11 Arrests
[2] Pentagon's TIA Oversight Board Grapples with Privacy Issues
[3] EPIC Seeks CAPPS II Details; Congress Focuses on Program
[4] European Data Protection Officials Release New Opinions
[5] EPIC Testifies on Medical Privacy; FTC Examines Info Flows
[6] EPIC Testifies on Cross Border Fraud
[7] EPIC Bookstore: Privacy Journal
[8] Upcoming Conferences and Events

[1] Appeals Court Upholds DOJ's Secret 9/11 Arrests

In a divided opinion issued on June 17, a three-judge panel of the
U.S. Court of Appeals for the D.C. Circuit endorsed the Justice
Department's efforts to keep secret the identities of hundreds of
individuals detained after the September 2001 terrorist attacks.  The
decision, overturning a lower court ruling last August (see EPIC Alert
9.15), came in a Freedom of Information Act (FOIA) case in which EPIC
is a plaintiff and co-counsel.  The majority opinion, written by Judge
David B. Sentelle, gives almost total deference to executive branch
"national security" claims, even though DOJ relied on the FOIA's law
enforcement exemption.  "It is within the role of the executive to
acquire and exercise the expertise of protecting national security,"
the majority concluded.  "It is not within the role of the courts to
second-guess executive judgments made in furtherance of that branch's
proper role."  The breadth of the court's rationale could effect
future cases involving the government's anti-terrorism initiatives.

In a dissenting opinion, Judge David Tatel wrote that the majority
decision "eviscerates both FOIA itself and the principles of openness
in government that FOIA embodies."  He said that "the court's approach
drastically diminishes, if not eliminates, the judiciary's role in
FOIA cases that implicate national-security interests.  Congress
certainly could have written FOIA that way, but chose instead to
require meaningful judicial review of all government exemption

The FOIA lawsuit was filed by the Center for National Security
Studies, EPIC, and 21 other organizations, including the American
Civil Liberties Union, Human Rights Watch and Amnesty International
USA.  The plaintiffs argued that the detentions constituted secret
arrests that violated longstanding legal requirements compelling the
government to account for the individuals it incarcerates.  The
Justice Department's Inspector General issued a report earlier this
month that found "significant problems" with the detentions and
sharply criticized the Department's handling of the detainees.

The decision can be reviewed by the full appeals court or the U.S.
Supreme Court, but such review is not mandatory.

The court's decision is available at:


The DOJ Inspector General's report is available at:


Background information on the litigation is available at:


[2] Pentagon's TIA Oversight Board Grapples with Privacy Issues

The Defense Department's Technology and Privacy Advisory Committee
held its first public meeting today in Arlington, Virginia.  In the
midst of the Congressional debate concerning the Total Information
Awareness program in January, the Secretary of Defense established the
external board to review the controversial program.  The move was seen
as an attempt to deflect criticism of the initiative and to possibly
limit Congressional scrutiny (see EPIC Alert 10.03).  The board,
chaired by Newton Minow, consists of several distinguished legal and
intelligence experts selected by the Defense Secretary.

At the meeting, DOD Under Secretary Michael Wynne acknowledged that
the program's "marketing got ahead of itself" and said he hoped the
Committee would assist the Department in restoring public confidence
in what he described as a "mundane information technology project." 
The Committee's charter, however, directs it to address the question:
"Should the Total Information Awareness (TIA) program's goal of
developing technologies that may help identify terrorists before they
act be pursued?"

EPIC General Counsel David Sobel argued that the Committee should
scrap the surveillance program unless it can ensure the American
public that such a system can, at a minimum, 1) effectively protect
against terrorist acts; 2) achieve its stated goal without generating
false positives; 3) provide meaningful due process rights to affected
individuals (particularly those incorrectly flagged); and 4) function
in an open, unclassified manner.  Sobel expressed profound skepticism
about TIA meeting such a test, but he urged the Committee to engage in
this inquiry with an open mind.  He told the Committee it should be
particularly sensitive about a system that purports to curtail
terrorism by investigating prospective crimes that have not occurred
by people who have not committed them.  His testimony focused on the
public's need to understand how the system would operate and what the
consequences of being flagged as a potential suspect might entail.

The Committee members attempted to grapple with what the surveillance
program could and couldn't do.  Floyd Abrams, a noted First Amendment
lawyer who serves on the Committee, described three different models
for understanding TIA's capability.  The first was using TIA to
collect information concerning specific threats and individuals based
on hard intelligence information; the second was to use red teams or
"imagineers" to come up with potential terrorist sceanarios and then
to investigate them using TIA databases; and the third was to use TIA
to sift through commericial and government databases to look for
threats.  Paul Rosenzweig of the Heritage Foundation argued that only
the first model was an acceptable use of TIA and that it must be
closely supervised to prevent mission creep.  Stewart Baker, former
General Counsel of the National Security Agency, urged the committee
to move forward with the program by not placing any barriers that
would obstruct the work of intelligence analysts.

The meeting was divided into two panels.  In the morning panel,
members of the Markle Foundation Task Force provided their opinions to
the Committee.  The Markle Foundation, headed by Zoe Baird (who also
serves on the Committee), issued a report last year on the use of
information technology for intelligence.  Jerry Berman of the Center
for Democracy and Technology argued that with some civil liberties
protections, the program could be made to work.  Judith Miller, former
General Counsel of the Defense Department, cautioned the Committee to
pay attention to the posse comitatus statute and its potential policy
implications if the Defense Department became involved in domestic
surveillance activities.

The Advisory Committee appears to be taking its task seriously.  While
several members expressed their interest in making the technology
program work, several expressed interest in developing additional
protections for civil liberties.  They also sought greater clarity on
the program's goals and how it might function, including describing
the databases searched, and how it would incorporate due process
rights. The Committee is due to submit a report to the Secretary of
Defense within a year.

Technology and Privacy Advisory Committee website:


Technology and Privacy Advisory Committee Charter:

EPIC's TIA Web site:


[3] EPIC Seeks CAPPS II Details; Congress Focuses on Program

EPIC filed suit on June 11 in the U.S. District Court seeking
disclosure of information concerning the development of the
government's controversial passenger profiling program.  The lawsuit
alleges that the Department of Homeland Security (DHS), Transportation
Security Administration (TSA) and Department of Defense (DOD) have
failed to comply with the disclosure requirements of the Freedom of
Information Act.

The lawsuit seeks the public release of documents concerning TSA's
enhanced Computer Assisted Passenger Prescreening System (CAPPS II).
In March, EPIC requested from TSA any privacy assessments of CAPPS II,
and from DOD information concerning Pentagon involvement in the
screening system.  Neither agency has completed processing the
requests, despite their agreement to "expedite" the process.  DHS, as
the parent department of TSA, is named as a defendant.  It is believed
that the lawsuit is the first FOIA case to be filed against the new
homeland security agency.

While TSA has repeatedly issued public assurances that privacy rights
of air passengers will be respected, it has not disclosed any internal
documents assessing the potential privacy or civil liberties impact of
CAPPS II.  Nor has the Pentagon revealed the extent of its technical
assistance to TSA, despite an e-mail message from a top TSA official
to Admiral John Poindexter seeking details about the Total Information
Awareness system under development at Poindexter's Information
Awareness Office within DOD.  EPIC obtained a copy of that message
through an earlier lawsuit against TSA.

Meanwhile, Congressional oversight of CAPPS II is poised to expand
rapidly.  On June 17, the House Appropriations Committee approved an
amendment to the Homeland Security Appropriations bill offered by Rep.
Martin Sabo (D-MN).  The Sabo amendment suspends funding to implement
CAPPS II unless the Government Accounting Office submits a detailed
report to Congress that shows, among other things, that TSA has
developed a procedure that gives air travelers due process rights; the
technology is effective; the error or false positive rate is not too
high; and that there are operational safeguards against abuse.  The
amendment also requires the Department Homeland Security to create an
internal oversight board and to comission a National Academy of
Sciences study on the likely impact on privacy and civil liberties.
Meanwhile in the Senate, Sen. Ron Wyden's (D-OR) amendment concerning
CAPPS II was added to the Federal Aviation Administration's
Reauthorization bill on June 12.  The Wyden amendment is the same as
the one added to the Air Cargo Security bill (see EPIC Alert 10.06),
and would require the Secretary of Homeland Security, after
consultation with the Attorney General, to submit a report in writing
to the Senate Committee on Commerce, Science, and Transportation and
Infrastructure on the potential impact of the CAPPS II initiative on
the privacy and civil liberties of U.S. citizens.  These two
amendments have yet to be passed into law but suggest that Congress
appears keen to exercise its oversight power.

EPIC Press Release on CAPPS II Lawsuit:


E-mail exchange between TSA and Adm. John Poindexter:


Sabo Amendment, Homeland Security Appropriations:


Wyden Amendment, FAA Reauthorization:


EPIC FOIA Documents Showing TSA "No-Fly" List Errors:


[4] European Data Protection Officials Release New Opinions

The Data Protection Working Party (Article 29) released opinions on a
variety of privacy issues including EU-US passenger data sharing and
the Whois database.  The Article 29 group is an independent European
advisory body on data protection and privacy that was set up by the
1995 European Community Data Protection Directive (1995/46/EC).  Among
its tasks, the Article 29 group examines any question covering the
application of EU Member States' measures adopted under EC privacy
directives in order to contribute to their uniform application and
gives the European Commission an opinion on the level of protection in
the European Community and in third countries.  It also advises the
Commission on any proposed EC measures affecting natural persons'
freedoms and rights with regard to the processing of their personal

In an opinion released this week, the Article 29 group addressed the
adequacy of the protection that the "Undertakings", an arrangement
reached between the U.S. government and the European Commission to
deal with passenger data sharing, and sought to establish a clear
legal framework for such transfers to comply with data protection
principles.  The opinion acknowledges that combatting terrorism is a
legitimate goal, but that passengers' right to privacy and data
protection is a human right protected by major European legal
instruments, including the European Convention on Human Rights, the
Directive and the Charter of Fundamental Rights of the European Union.
The opinion also discusses the possibility that U.S. surveillance
programs, including Terrorism Information Awareness (TIA) and the
Computer Assisted Passenger Pre-Screening System (CAPPS II), raise the
risk of "generalized surveillance and controls by a third State."

The Article 29 group also released an opinion on the application of
the European Community data protection principles to Whois
directories.  Whois information is the data individuals or companies
have given to domain name registrars in connection with the
registration of a domain name.  It may include information such as the
name of the contact-point for the domain name, phone number, e-mail
address and other personal data.  As a growing number of domain name
registrants are private persons, more and more complaints have been
voiced regarding the improper use of Whois data.  The Article 29 group
makes it clear that current use and management of Whois directories is
not in line with several data protection principles.  For instance,
the use of such data by intellectual property right owners to police
activities related to alleged breaches of their rights contradicts the
purpose specification principle (data cannot be used later for
purposes different from the original purpose for which the data was
collected); individuals can not be forced to have their name,
telephone number and other associated personal data published online;
and the use of Whois data for reverse directories, multi-criteria
searching services, and bulk access for direct marketing purposes is
unfair and unlawful if the individual's unambiguous and informed
consent is not obtained beforehand.

Article 29 Opinion on Whois Database:


Article 29 Opinion on EU-US Passenger Data Sharing:


EPIC EU-US Airline Passenger Data Disclosure web page:


EPIC Whois web page: 


[5] EPIC Testifies on Medical Privacy; FTC Examines Info Flows

The House Committee on Financial Services explored the role of the
Federal Credit Reporting Act (FCRA) in employee background checks and
the collection of medical information at a hearing on June 17. EPIC
Executive Director Marc Rotenberg testified on the need to ensure that
strong safeguards exist so that personal medical information is not
discernable in an individual's credit report.  Other panelists
included insurance company representatives, a representative from the
American Bankers Association and the Health Policy Institute at
Georgetown University.  EPIC's testimony argued in favor of
strengthening reporting accuracy and easing an individual's ability to
correct errors on their credit report.  In addition, EPIC urged the
Committee to allow the state preemption loophole in the FCRA to expire
so that states have the freedom to protect the interests of citizens.

Rotenberg provided the Committee with an example of how medical
information may find its way into one's credit report, emphasizing the
need to protect such medical information.  The example was that of the
woman who has taken out credit with a neonatal clinic to pay for
fertility testing.  One of the lines on her credit report would likely
reveal the name of the clinic and anyone with access to her report
would know of these medical payments.  Although it would not legally
be a basis for denying a hire, a potential employer might infer that
the woman might want to begin a family soon.

Rotenberg emphasized that this issue should be of particular concern
to the Committee because employers are increasingly using background
checks on potential and current employees.  Additionally, landlords
are using credit reports to screen potential renters, and even health
clubs are using credit reports as a means of evaluating applications
for membership.

The insurance industry representatives supported extending the federal
preemption clause of the Act since, in his view, sufficient safeguards
for protecting medical information was in place.  Banking industry
representative also expressed support for federal preemption to
provide regulatory consistency and noted that sometimes medical
information is relevant to credit worthiness.  

In comments submitted to the Federal Trade Commission's Information
Flows Workshop on June 18, EPIC argued that there is strong support
for Fair Information Practices to address business uses of personal
information.  The comments detail how businesses have used personal
information to limit consumer choice, to raise prices, and to engage
in fraud.  Additionally, the comments question the integrity of
industry-funded academics who have employed dubious research methods
and specious arguments to stymie privacy regulations.

One of the panelists on the Workshop, Privacy Times Editor Evan
Hendricks, reported a new risk from information flows related to
prescreened offers of credit: criminal syndicates are targeting
recipients of prescreened credit card and convenience checks for
identity theft.  These offers are sent on an opt-out basis, and are
often stolen from mailboxes by identity thieves.  Individuals can
opt-out of these solicitations by calling 1-888-5OPTOUT and pressing
2, and then 2 again.

EPIC's Testimony on Medical Privacy and FCRA:


EPIC Fair Credit Reporting Act page:


EPIC Preemption page:


EPIC Comments for FTC Information Flows Workshop:


[6] EPIC Testifies on Cross Border Fraud; New OECD Guidelines

On June 13, EPIC Executive Director Marc Rotenberg testified at a
Senate Commerce Subcommittee hearing on cross border consumer fraud
and the reauthorization of the Federal Trade Commission (FTC).  The
FTC requested broad new powers in a proposed bill that would help
combat the onslaught of unsolicited commercial e-mail and consumer
fraud originating from outside U.S. borders.  The proposed bill
establishes a legal framework for the FTC to conclude international
agreements and develop closer co-operation with law enforcement
agencies and consumer protection agencies worldwide.

Rotenberg testified in support of closer cooperation with foreign law
enforcement agencies in fraud investigations, but he recommended that
the bill be revised to ensure that democratic values, including
privacy, government accountability and transparency, were duly
incorporated.  He argued that the FTC proposal created too few
restrictions on the disclosure of information concerning individuals
and entities within the United States.  He criticized the provisions
that would allow the government to gain access to financial and
electronic information without having to notify the target of the
investigation.  Rotenberg also pointed out that the bill would create
a new exemption from some open record obligations under the Freedom of
Information Act, leading to less public transparency of the FTC's
work.  Finally, he argued that the FTC and foreign law enforcement
agencies should not have access to the FBI's National Crime
Information Center (NCIC), the nation's most extensive computerized
criminal history database, particularly after the FBI announced that
it would no longer adhere to the Privacy Act requirement of
maintaining accurate information in the NCIC.  This last provision was
dropped in the final version of the bill that was introduced by
Senators McCain and Smith.

On an earlier panel, the four FTC commissioners testified about the
performance of the FTC in fulfilling its mission relating to consumer
protection.  The main issue discussed at the hearing was the work FTC
was doing to help consumers fight spam.  The Senators were eager to
have the FTC commit significant resources to rein in spammers.  The
commissioners testified that the new bill would allow the FTC to
investigate deceptive spammers more effectively with the help of
foreign law enforcement agenices.  The commissioners were also
questioned about what the FTC was doing to monitor businesses' privacy
policies on the Internet.

On June 17, the Organization for Economic Cooperation and Development
(OECD) and the FTC held a joint press conference on the new OECD cross
border fraud guidelines, which call upon member countries to cooperate
in fighting fraudulent and deceptive commercial practices occurring in
connection with business to consumer transactions.  The guidelines
call for member countries to improve their ability to co-operate in
combating cross-border fraudulent and deceptive commercial practices,
and co-ordinate their consumer protection investigations and
enforcement activity.  The guidelines also call for member countries
to take appropriate steps to maintain the necessary confidentiality of
information exchanged under these guidelines, in particular in sharing
confidential business or personal information.

EPIC's Testimony on Cross Border Fraud:


International Consumer Protection Enforcement Bill (S. 1234):


New OECD Cross Border Fraud Guidelines:


[7] EPIC Bookstore: Privacy Journal Survey of State and Federal Laws

Privacy Journal Survey of State and Federal Privacy Laws, 2003 Update

Privacy Journal has published the latest supplement to its
"Compilation of State and Federal Privacy Laws," showing a huge
increase in state anti-spam laws and do-not-call telemarketing laws. A
total of 34 states have passed new laws limiting bulk electronic-mail
advertising, according to Privacy Journal's new listing, which
includes a description and legal citation for each law. Most states
require that "spam" be labeled as advertising and provide a means to
get off an e-mail ad list.  Other laws are more stringent, making some
"spam" a crime or requiring ad advertiser to consult a do-not-e-mail
list maintained by the state.  The Compilation of State and Federal
Privacy Laws 2003 Supplement lists shows 26 state laws requiring
telemarketers to consult a state-maintained do-not-call list.  Some
state lists will be merged with a new federal database beginning in
late summer this year.

The supplement also shows additional state privacy laws prohibiting
discrimination based on genetic testing or punishing identity theft.
"Even in a time of intense concern about homeland safety, states are
enacting laws restricting the use of personal information and
restricting intrusions in person's homes," said Robert Ellis Smith,
publisher of Privacy Journal and author of the collection of state
laws.  "For three years only the three states with the most Internet
activity -- California, Virginia, and Washington -- had anti-spam
laws, but now nearly three-quarters of the states have enacted some

Privacy Journal is an independent newsletter on privacy in the
computer age, published monthly since 1974.

Order information:

The book and 2003 supplement are available for $31 plus $4 handling
from Privacy Journal, PO Box 28577, Providence RI 02908, 401/274-7861,
fax 401/274-4747. The 2003 supplement costs $21 plus $4.  For more
information visit http://www.privacyjournal.net.


EPIC Publications:

"The Privacy Law Sourcebook 2002: United States Law, International
Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2002).
Price: $40. http://www.epic.org/bookstore/pls2002/

The "Physicians Desk Reference of the privacy world."  An invaluable
resource for students, attorneys, researchers and journalists who need
an up-to-date collection of U.S. and International privacy law, as
well as a comprehensive listing of privacy resources.


"FOIA 2002: Litigation Under the Federal Open Government Laws," Harry
Hammitt, David Sobel and Mark Zaid, editors (EPIC 2002). Price: $40.

This is the standard reference work covering all aspects of the
Freedom of Information Act, the Privacy Act, the Government in the
Sunshine Act, and the Federal Advisory Committee Act.  The 21st
edition fully updates the manual that lawyers, journalists and
researchers have relied on for more than 25 years.  For those who
litigate open government cases (or need to learn how to litigate
them), this is an essential reference manual.


"Privacy & Human Rights 2002: An International Survey of Privacy Laws
and Developments" (EPIC 2002). Price: $25.

This survey, by EPIC and Privacy International, reviews the state of
privacy in over fifty countries around the world.  The survey examines
a wide range of privacy issues including data protection, telephone
tapping, genetic databases, video surveillance, location tracking, ID
systems and freedom of information laws.


"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.


"The Consumer Law Sourcebook 2000: Electronic Commerce and the Global
Economy," Sarah Andrews, editor (EPIC 2000). Price: $40.

The Consumer Law Sourcebook provides a basic set of materials for
consumers, policy makers, practitioners and researchers who are
interested in the emerging field of electronic commerce.  The focus is
on framework legislation that articulates basic rights for consumers
and the basic responsibilities for businesses in the online economy.


"Cryptography and Liberty 2000: An International Survey of Encryption
Policy," Wayne Madsen and David Banisar, authors (EPIC 2000). Price:
$20. http://www.epic.org/crypto&/

EPIC's third survey of encryption policies around the world.  The
results indicate that the efforts to reduce export controls on strong
encryption products have largely succeeded, although several
governments are gaining new powers to combat the perceived threats of
encryption to law enforcement.


EPIC publications and other books on privacy, open government, free
expression, crypto and governance can be ordered at:

     EPIC Bookstore

     "EPIC Bookshelf" at Powell's Books

[8] Upcoming Conferences and Events

June 23-27, 2003. Partenit, Crimea, Ukraine. For more information:

Press Freedom on the Internet. The World Press Freedom Committee. June
26-28, 2003. New York, NY. For more information: mgreene@wpfc.org

Building the Information Commonwealth: Information Technologies and
Prospects for Development of Civil Society Institutions in the
Countries of the Commonwealth of Independent States.
Interparliamentary Assembly of the Member States of the Commonwealth
of Independent States (IPA). June 30-July 2, 2003. St. Petersburg,
Russia. For more information:

O'Reilly Open Source Convention. July 7-11, 2003. Portland, OR. For
more information: http://conferences.oreilly.com/oscon/

1st Global Conference: Visions of Humanity in Cyberculture, Cyberpunk
and Science Fiction. August 11-13, 2003. Prague, Czech Republic. For
more information: http://www.inter-disciplinary.net/vhccsf03cfp.htm

Integrating Privacy Into Your Overall Business Strategy: Complying
with Privacy Legislation for Competitive Advantage. International
Quality and Productivity Centre (IQPC Canada). July 9-10, 2003.
Toronto, Canada. For more information:

Chaos Communication Camp 2003: The International Hacker Open Air
Gathering. Chaos Computer Club. August 7-10, 2003. Paulshof,
Altlandsberg, Germany. For more information: http://www.ccc.de/camp/

WWW2003: 5th Annual Conference on World Wide Web Applications.
Department of Information Studies, Rand Afrikaans University, and the
Department of Information Systems and Technology, University of
Durban-Westville. September 10-12, 2003. Durban, South Africa. For
more information: http://www.udw.ac.za/www2003/

Making Intelligence Accountable, Oslo, Norway September 19-20, 2003.
The Geneva Centre for the Democratic Control of Armed Forces. For more

Privacy2003. Technology Policy Group. September 30-October 2, 2003.
Columbus, OH. For more information:

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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.
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---------------------- END EPIC Alert 10.12 ----------------------