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E P I C A l e r t
Volume 10.25 December 17, 2003
Published by the
Electronic Privacy Information Center (EPIC)
Washington, D.C.
Table of Contents
[1] EPIC Submits Amicus Brief in Supreme Court ID Case
[2] President Signs Credit Reporting Bill
[3] UN Summit Tackles Human Rights in the Information Society
[4] EPIC Testifies Before 9/11 Commission
[5] President Signs "CAN-SPAM" Legislation
[6] News in Brief
[7] EPIC Bookstore: Internet Law - The Complete Guide
[8] Upcoming Conferences and Events
[1] EPIC Submits Amicus Brief in Supreme Court ID Case
====================================================================== EPIC has filed a "friend of the court" brief in Hiibel v. Nevada, a
case in which the U.S. Supreme Court will determine whether an
individual may refuse to identify himself to police when there is no
legal basis for an arrest. Ten scholars and technical experts joined
EPIC in urging the Court to ensure that police are not permitted to
use stop-and-frisk situations for fishing expeditions through
government computer databases.
The case involves a challenge to the constitutionality of Nevada
Revised Statute Sec. 171.123(3), which allows a police officer to
detain a person to ascertain his identity when there are circumstances
reasonably indicating that person has committed a crime. Appellant
Larry Hiibel appealed the Nevada Supreme Court's determination that
the challenged law is consistent with guarantees against unreasonable
search and seizure protected by the Fourth Amendment because it
"strikes a balance between constitutional protections of privacy and
the need to protect police officers and the public." Hiibel also
argues that the law violates the Fifth Amendment protection against
EPIC's brief approaches the case from a technical perspective,
surveying the capabilities and flaws of several existing government
information systems: the National Crime Information Center (NCIC), the
Multi-State Anti-Terrorism Information Exchange (MATRIX), the United
States Visitor and Immigrant Status Indicator Technology System
(US-VISIT), the Driver And Vehicle Information Database (DAVID), and
the Transportation Workers Identification Credential (TWIC). The
brief explains how such systems may be used by law enforcement to
engage in public surveillance.
Oral argument in Hiibel v. Nevada is expected next spring.
EPIC's amicus brief is available at:
For background information, see EPIC's Hiibel v. Nevada page at:
[2] President Signs New Credit Reporting Bill
====================================================================== President Bush has signed H.R. 2622, the Fair and Accurate Credit
Transactions Act of 2003. The Act was quickly moved through Congress
this session in order to preempt state laws that could require
heightened privacy protections. It amends the Fair Credit Reporting
Act, the first federal privacy law, which was passed in 1970 in an
attempt to curb abusive credit reporting practices. While the Act will limit states' ability to pass laws in certain
areas, the new legislation does contain new privacy and consumer
protections. The Act requires the Federal Trade Commission (FTC) to
create a streamlined process for individuals to obtain one free credit
report annually. Credit reporting agencies will be required to
disclose credit scores, but they may charge a fee for their provision. Prescreening is further limited by the Act. Prescreened offers of
credit must contain a conspicuous notice of the right to opt-out, and
the toll-free number for doing so (888-5-OPTOUT). Individuals will
have a new right to opt-out of marketing solicitations that flow from
affiliate sharing of personal information. The opt-out will last for
five years, at which time the company must issue a new notice and
opportunity to opt-out. Medical information is further protected
under the Act. Medical information must be coded to obscure
providers' names and the nature of services. When reporting negative information to a credit reporting agency, such
as a delinquency or default in payments, financial services companies
must give notice to the consumer. The Act allows individuals to file fraud alerts, which require credit
reporting agencies to inform others that fraud may be present. ID
theft victims also can request transaction records when businesses
have extended credit to an impostor. The Act extends the time in which individuals can bring suit. Suits
can be filed up to two years following the discovery of a violation,
or five years following the date of the violation, whichever is
earlier. 108 H.R. 2622, The Fair and Accurate Credit Transactions Act of 2003
is available at:
For background information, see EPIC's FCRA Page at:
For background information, see EPIC's Preemption Page at:
[3] UN Summit Tackles Human Rights in the Information Society
Representatives from governments, business, and civil society groups
around the world met last week at the World Summit on the Information
Society (WSIS) in Geneva. Human rights (including privacy and free
expression), online security (including intellectual property
regulation), and Internet governance were all discussed at the Geneva
Summit. Civil society groups urged national governments to safeguard
human rights and to promote full participation in the information
society. Representatives adopted a Declaration of Principles and a
Plan of Action, which will be examined again in Tunisia in November of
Many members of civil society have been working inside the Summit
process insisting on the inclusion of privacy and human rights
protections. On December 8, the Civil Society Plenary of the WSIS
unanimously adopted its own declaration called, "Shaping Information
Societies for Human Needs: Civil Society Declaration to the World
Summit on the Information Society." The members believe that the
Declaration and Plan of Action as drafted prior to the Summit did not
adequately protect free expression, narrowly focused on Internet
policy, and over-emphasized law enforcement interests.
The Human Rights Caucus reported from the Summit that their activity
both inside and outside the Summit has been successful with regards to
the final Declaration and Plan of Action. According to the Caucus,
"The essential principles of universality and indivisibility are
reiterated and there are references to the Universal Declaration of
Human Rights as well as to the Vienna Declaration and the UN Charter."
The document also includes the full extent of Article 19 of the UDHR,
which had been at issue. However, as the Caucus reports, much of the
Declaration is not focused on human rights but rather on the creation
of a "global culture of cyber-security" with interest in global trade
rather than on human rights. According to the Caucus, "The discussion
around security would have been enhanced by a clear understanding that
true security can only be achieved by measures that are fully
compatible with international human rights and particularly the right
to privacy."
Control of the Internet was also a hot topic on the agenda. The
Internet is currently administered by the Internet Corporation for
Assigned Names and Numbers (ICANN), a group established by the U.S.
Commerce Department. The U.S. has not been proactive in a movement to
help poorer countries gain access to the Internet, which would require
money from industrial nations. Many representatives, particularly
those from developing nations, are therefore in favor of a more
international body such as the United Nations to take administrative
control of the Internet. This adjustment was not made at the Summit.
However, the delegates agreed that a UN working group should be set up
to examine whether to introduce more international oversight of the
Internet's semiformal administrative bodies. Another United Nations
committee will be established to review ways of paying for efforts to
connect the poorer populations to the Internet.
Privacy protection of civil society representatives attending the
Summit was called into question by a study highlighting technology
used in Summit security. Independent researchers attending the event
revealed security and privacy flaws in the security system used to
control access to the Summit. Security badges issued to participants
contained SmartCards and Radio Frequency Identification (RFID). Such
technology can be triggered remotely without the cardholder noticing
and allowed cardholders to be tracked in their attendance at the
Summit. When participants were required to obtain security badges,
they were not informed of the possible surveillance and were not
provided with any information on privacy policies and procedures.
The second phase of the World Summit on the Information Society will
take place in Tunisia, from November 16-18, 2005. There will be a
preparatory meeting in the first half of 2004 to review both the
issues needing focus in Tunisia and the structure of the process. The
meetings in Geneva and the follow-up to the Declaration and Plan of
Action in Tunisia in 2005 will help shape the future of the
Information Society.
The WSIS Declaration of Principles and Plan of Action is available at:
Information on the Civil Society Declaration is available at:
For background information, see EPIC's RFID page at:
[4] EPIC Testifies Before 9/11 Commission
EPIC Executive Director Marc Rotenberg testified before the National
Commission on Terrorists Attacks in a public hearing on December 8.
The commission is an independent, bipartisan group created by Congress
to investigate the circumstances surrounding the September 11
terrorist attacks and examine ways to prevent future attacks.
Rotenberg was invited to speak before the commission in a session on
"Security and Liberty." His panel, which was charged with discussing
the protection of privacy while preventing terrorism, also included
former Department of Defense General Counsel Judith A. Miller, and
Stewart A. Baker, former General Counsel of the National Security
In his statement, Rotenberg emphasized the important history of
privacy protection, the problems with new systems of surveillance, and
the specific need to preserve Constitutional checks and balances. He
began by discussing the development of privacy law in the U.S. and
underscoring the important role such laws play in protecting
individual rights. Rotenberg also pointed out that "much of the
discussion about the expansion of government surveillance authority
post 9-11 has failed to recognize that under our form of government,
there are critical checks and balances that must be respected." New
laws and security proposals the U.S. has considered since September 11
extend government powers of surveillance while rolling back important
safeguards Congress previously had established to protect the privacy
of citizens, Rotenberg argued.
Rotenberg went on to discuss the affects of new technology on
individual privacy. He pointed out that there are many ways new
technology can be employed without jeopardizing privacy. However, the
U.S. has been intent upon employing a host of new systems of
surveillance to monitor its citizens that are highly privacy invasive.
Rotenberg expounded on two systems in particular -- Total Information
Awareness (TIA) and the Computer Assisted Passenger Prescreening
System (CAPPS II). He criticized both systems for not adequately
following federal privacy regulations nor considering privacy
concerns, and suggested that these systems would hurt, not help, the
American people.
Finally, Rotenberg proposed a set of recommendations to the
commission, urging it to consider privacy concerns when formulating
its report to Congress. Specifically, he underscored the important
role privacy law has played and continues to play in safeguarding
citizens and warning that high-tech surveillance systems being
considered in our country pose an immense threat to society,
especially if not properly monitored or held accountable.
Rotenberg's statement is available at:
Information on the National Commission on Terrorist Attacks is
available at:
For background information, see EPIC's Total Information Awareness
page at:
For background information, see EPIC's Passenger Profiling page at:
[5] President Signs "CAN-SPAM" Legislation
Congress acted swiftly in passing S. 877, the Controlling the Assault
of Non-Solicited Pornography and Marketing Act of 2003, known as the
"CAN-SPAM" Act. The Act creates new penalties for sending deceptive
spam advertising, but does not "can" truthful unsolicited commercial
e-mail. The Act allows every spammer in the world to send every
Internet user at least one message. The Act does not address list
brokerage, the source of the majority of unwanted advertising.
Furthermore, the Act supercedes state laws, thereby eliminating
stronger protections against spam in many states, including individual
rights of action against spammers, and a California opt-in spam law
which would have taken effect on January 1.
The Act defines spam as any message where the "primary purpose" is the
"commercial advertisement or promotion of a commercial product or
service." In twelve months, the Federal Trade Commission (FTC) must
issue criteria to determine the "primary purpose" of a message.
"Transactional or relationship" messages, that is, messages for
account maintenance, product recall or safety information, or those
necessary to complete a sale initiated by the recipient, are exempted
from some provisions of the Act.
Spam must include notice that the message is an advertisement or
solicitation, an opt-out notice, and a valid postal address of the
sender. If the recipient opts out of the spam, the sender has ten
days to stop spamming. Address harvesting and dictionary attacks are
illegal under the Act, but these practices are considered aggravating
offenses, and they cannot serve as the sole basis of prosecution of a
The Act prohibits falsification of transmission information and
deceptive subject headings. The Act creates criminal prohibitions
against those who knowingly transmit spam through others' computers
without authorization. Also, the FTC may pursue individuals who
knowingly hire others to send deceptive spam. However, these and
other criminal provisions are encumbered by unusually burdensome
litigation requirements. For instance, the prohibition on deceptive
subject headings would require the government to prove in court that
the sender knew that the message would mislead a reasonable recipient.
Spam with "sexually oriented" material must be labeled with a notice
that will be developed by the FTC and the Attorney General within six
The Act gives the FTC the authority to create a do-not-spam registry.
The agency must issue a report to Congress on the feasibility of such
a registry within six months, and may implement it three months after
the report.
Enforcement of the Act is limited to the FTC, state attorneys general,
and Internet Service Providers. Some individuals may be able to
qualify as Internet Service Providers, and bring lawsuits under the
Act. But, damages are capped, and spammers can obtain a reduction in
fines if they can show implementation of "reasonable practices" to
avoid violation of the Act. Earlier this year, the Internet Committee
of the National Association of Attorneys General described this
reduction in fines as "unprecedented in consumer protection law" and
"an additional barrier to enforcement."
The CAN-SPAM Act of 2003 is available at:
The letter from the NAAG Internet Committee Objecting to CAN-SPAM is
available at:
For background information, see EPIC's Spam page at:
[6] News in Brief
The European Commission has temporarily agreed to provide the United
States with information on its airline passengers traveling to the
U.S. EU Commissioner Frits Bolkestein worked out the final details of
the agreement Monday with U.S. Department of Homeland Security
Secretary Tom Ridge. Pursuant to what is now only a temporary
arrangement, U.S. authorities would legally get access to passenger
name records (PNR) of travelers from Europe subject to a few
safeguards: the period during which data would be retained is 3 1/2
years (down from 50 years); the fields of PNR transferred to the US
would be limited to 34 (it would include fields such as passenger1s
name and address, credit card information, telephone number and travel
companions); the passenger data, once disclosed in the U.S., could
only be used against terrorism and to prosecute crimes of a
transnational nature; E.U. passengers would have the right to complain
before their national data protection authorities if the DHS fails to
properly resolve their complaints; and a US-EU joint annual joint
review would be carried out to assess how the U.S. implement the
agreement. The deal comes after a year of negotiations in which the
U.S. has sought expansive access to EU passenger information as a part
of its war on terrorism. The agreement may still violate European
privacy laws and faces opposition from the European Parliament.
The statement of the European Commission is available at:
The speech by Frits Bolkestein before the European Parliament is
available at:
For background information, see EPIC's EU-U.S. Airline Passenger
Data page at:
http://www.epic.org/privacy/intl/passenger_data.html 3rd CIRCUIT RULES EMPLOYER MAY SEARCH STORED EMPLOYEE EMAIL
The 3rd U.S. Circuit Court of Appeals has decided that an employer who
accessed his employee's e-mails in computer storage did not violate
the Electronic Communications Privacy Act (ECPA). In the case of
Fraser v. Nationwide Mutual Insurance Co., the court ruled that the
ECPA only bans interception of email if it occurs at the time of the
transmission, thus allowing the owner of the email system to view any
stored e-mail it wishes. "Every circuit court to have considered the
matter has held that an 'intercept' under the ECPA must occur
contemporaneously with transmission," wrote Judge Thomas L. Ambro in
the majority opinion. Ambro found that ECPA prohibits "seizures" of
stored e-mails but includes an exception for seizures authorized "by
the person or entity providing a wire or electronic communications
service." The 3rd Circuit Court's opinion in Fraser v. Nationwide Mutual
Insurance Co. is available at:
For background information, see EPIC's Workplace Privacy page at:
President Bush signed H.R. 2417, the Intelligence Authorization Act
for Fiscal Year 2004, into law on December 13. The Act authorizes
appropriations for intelligence-related activities of various federal
agencies, including the Department of Defense, Department of Homeland
Security, and Federal Bureau of Investigation (FBI). A provision
added to the bill in committee in mid-November, after the bill had
been passed by the House and Senate, expands FBI authority to seize
records in terrorism investigations. The Act permits the FBI to
demand records without judicial approval from car dealers,
pawnbrokers, travel agents, casinos, and other businesses.
The text of H.R. 2417 is available at:
The committee report is available at:
http://www.fas.org/irp/congress/2003_rpt/2004conf.html GILMORE COMMISSION MAKES FINAL HOMELAND SECURITY RECOMMENDATIONS
The Gilmore Commission, also known as the Advisory Panel to Assess
Domestic Response Capabilities for Terrorism Involving Weapons of Mass
Destruction, released its fifth and final annual report to the
President and Congress on December 15. Among the Commission's
recommendations is the creation of a bipartisan board to provide
oversight on homeland security activities that may impinge upon civil
liberties. According to the report, such a board is necessary because
of the "potential chilling effect" of government surveillance
conducted for homeland security purposes. The Committee also
recommends the establishment of a domestic intelligence agency
responsible for collecting and analyzing information related to
terrorist threats within the United States. Since its inception, the
Committee has made 144 recommendations, 125 of which have been adopted
by Congress and government agencies.
The Gilmore Commission's homepage is available at:
The Gilmore Commission's Fifth Annual Report is available at:
http://www.rand.org/nsrd/terrpanel/volume_v/volume_v.pdf NEW STUDY: CREDIT SCORING DOES NOT ELIMINATE RACE, AGE BIAS
A new study by the National Community Reinvestment Coalition has found
that discrimination is widespread in home lending, resulting in
"African-American and predominately elderly communities receiv[ing] a
considerably higher level of high cost subprime loans than is
justified based on th[eir] credit risk." Traditionally, lenders have
argued that credit scoring systems allow lending decisions to be made
in a colorblind fashion. However, the study, which controlled for
risk and housing market conditions, found that race and age were
strongly correlated with unfair, high-cost sub-prime lending.
Race and Age Discrimination in Lending Documented, National Community
Reinvestment Coalition, December 2003, is available at:
EPIC has obtained a message under the Freedom of Information Act from
the American Embassy in Mexico to U.S. government officials regarding
the acquisition of Mexicans' personal information by ChoicePoint. The
message alerted the White House, the Department of Homeland Security
and other agencies that Mexican newspapers and political leaders
objected to the transfer of voting and driving records to ChoicePoint,
and warned that "a potential firestorm may be brewing." In April
2002, documents obtained by EPIC revealed that the Immigration and
Naturalization Service contracted with ChoicePoint to obtain citizen
registry, motor vehicle, and other information for Brazil, Argentina,
Mexico, Columbia, and Costa Rica. These documents led to calls for
investigations in several countries (See EPIC Alert 10.08).
The message From the American Embassy in Mexico to Washington is
available at:
Records Showing INS Purchase of Information on Latin and Central
Americans are available at:
http://www.epic.org/privacy/publicrecords/inschoicepoint.pdf EPIC URGES FCC TO PROTECT PRIVACY OF INTERNET TELEPHONY USERS
EPIC has urged the Federal Communications Commission to address the
privacy implications of Voice over Internet Protocol (VoIP), a
technology that enables Internet telephony. In a letter to the
agency, EPIC recounted the FCC's past actions to protect privacy, and
argued that the adoption of genuine privacy practices will accelerate
the adoption and security of Internet telephony. Specifically, EPIC
requested that the FCC create "technical and legal safeguards to
protect communications traffic (content and routing information) and
user location information, and to ensure that those expert in privacy
law and regulation participate in the work of the FCC on VOIP."
The EPIC VoIP Letter is available at:
The FCC VoIP Forum is available at:
http://www.fcc.gov/voip/ =====================================================================
[7] EPIC Bookstore: Internet Law - The Complete Guide
Steven D. Imparl, Internet Law - The Complete Guide (Specialty
Technical Publishers, Canada 2003) (available in loose-leaf binder and
CD-rom, 4 updates per year).
This 3-volume guide very clearly outlines the most important rules in
the field of Internet law. Its sections on children1s privacy,
consumer protection laws, advertising and telemarketing laws
applicable to online and offline commerce, workplace privacy, and
unsolicited e-mail are completed with very useful checklists for
professionals and consumers alike. Each section is completed by
up-to-date references to regulations in force, Internet resources, and
indexes of relevant case law and statutes. The 3Internet Law - The
Complete Guide2 offers practical advice to privacy and consumer
protection practitioners, consultants and advocates, as well as
- Cédric Laurant
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 2003: An International Survey of Privacy Laws
and Developments" (EPIC 2002). Price: $35.
This survey, by EPIC and Privacy International, reviews the state of
privacy in over fifty-five countries around the world. The survey
examines a wide range of privacy issues including data protection,
passenger profiling, genetic databases, video surveillance, 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/bookstore/crypto00&/
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
WHOLES - A Multiple View of Individual Privacy in a Networked World.
Swedish Institute of Computer Science. January 30-31, 2004. Stockholm,
Sweden. For more information: http://www.sics.se/privacy/wholes2004.
The New Fair Credit Reporting Act. Privacy & American Business.
February 9-10, 2004. Washington, DC. Email info@pandab.org.
O'Reilly Emerging Technology Conference. February 9-12, 2004. San
Diego, CA. For more information: http://conferences.oreilly.com/etech.
IAPP 4th Annual Privacy & Security Summit & Expo. February 18-20,
2004. Washington, DC. For more information:
RSA Conference 2004 - The Art of Information Security. February
23-27, 2004. San Francisco, CA. For more information: http://www.rsaconference.com.
Securing Privacy in the Internet Age. Stanford Law School. March
13-14, 2004. Palo Alto, CA. For more information:
International Conference on Data Privacy and Security in a Global
Society. Wessex Institute. May 11-13, 2004. Skiathos, Greece. For
more information:
O'Reilly Open Source Convention. July 26-30, 2004. Portland, OR. For
more information: http://conferences.oreilly.com/oscon.
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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.
EPIC publishes the EPIC Alert, pursues Freedom of Information Act
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Thank you for your support.
---------------------- END EPIC Alert 10.25 ----------------------