EPIC logo

                             E P I C  A l e r t
Volume 11.20                                           October 21, 2004

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


Table of Contents

[1] FBI Backs Down in EPIC Lawsuit for Release of Secure Flight Info
[2] Award Winners Question Science Funding for Mass Surveillance
[3] Ethics Committee Reprimands Congressman For Misleading Agency
[4] Federal Agency Approves RFID Implant for Health Care Use
[5] Foreign Government Seizes Indymedia Servers in UK
[6] News in Brief
[7] EPIC Bookstore: The Identity Theft Protection Guide
[8] Upcoming Conferences and Events

[1] FBI Backs Down in EPIC Lawsuit for Release of Secure Flight Info

Faced with an application for an emergency court order filed by EPIC
last week, the FBI agreed to quickly release documents in a lawsuit
seeking information about the agency's role in Secure Flight, the
government's new passenger prescreening system.  EPIC submitted a
Freedom of Information Act request to the FBI last month asking for
information about the Terrorist Screening Database, which is
maintained by the FBI.  Among other information, the database is
intended to include expanded watch lists, which will be used within
the Department of Homeland Security's Secure Flight program to screen

EPIC asked the FBI to release the documents before October 25, when a
public comment period on the testing phase of Secure Flight ends, so
that the public could submit informed and meaningful responses to the
government's Secure Flight proposal.  To further demonstrate the
urgency of letting the public know about the database, EPIC cited 213
news articles mentioning the FBI's involvement in Secure Flight. The
FBI concluded, however, that EPIC had failed to show any urgency to
inform the public about the database, and also found that EPIC is not
"primarily engaged in disseminating information," despite case law to
the contrary.

EPIC filed an application for an emergency court order requiring the
FBI to reverse its decision and release the requested information
immediately.  Faced with the possibility of judicial review of its
position, the FBI reversed its decision on EPIC's request the next
day.  The FBI is now legally obligated to process and release the
information as soon as practicable.

EPIC sent similar requests for information about Secure Flight and
passenger screening to the Transportation Security Administration and
Bureau of Customs and Border Protection.  TSA, which is responsible
for developing the program, concluded that there is no "compelling
need" to release the information, and denied EPIC's request that the
agency make the documents available to the public before the end of
the comment period.  The agency also refused to waive fees for
duplicating the documents, even though it has never denied EPIC this
waiver before.  This unusual step creates a significant financial
barrier to EPIC's ability to obtain the documents.  Customs, in
violation of deadlines in the Freedom of Information Act, has not
responded to EPIC's request.

EPIC is considering next steps.

EPIC's motion for a temporary restraining order and preliminary


Privacy Act notice on the test phase of Secure Flight:


Secure Flight privacy impact assessment:


TSA request to the Office of Management and Budget for emergency
processing of June 2004 passenger data:


Submit Secure Flight comments to TSA online:


[2] Award Winners Question Science Funding for Mass Surveillance

EPIC Executive Director Marc Rotenberg joined other recipients of the
Norbert Wiener Award for Professional and Social Responsibility in
calling on Congress and others to examine the redirection of science
funding toward systems of mass surveillance.  In an open letter dated
October 16, fourteen Wiener Award winners cautioned that this shift in
research priorities "could pose a fundamental risk to political
freedom, privacy, and Constitutional liberty."

While expressing support for new technologies that will identify
dangerous substances, the letter warned, "there are special risks
associated with the development of systems of mass surveillance that
must be addressed."  The letter explained, "[l]eft unchecked, the
consequence of this development could be the adoption of systems of
mass surveillance unrelated to any terrorist threats.  This will give
the government sweeping new capability to monitor private life and
thus diminish the freedom and liberty of Americans."  The letter
stressed that privacy and civil liberty concerns must be addressed in
the early phases of research and made a priority throughout

The award winners called on the National Science Foundation, DARPA,
the Department of Homeland Security and others "to determine whether
adequate safeguards are being developed to protect the civil rights of
the populations who will ultimately become the human subjects for the
deployment of these systems."  The letter concluded, "[t]he American
public has repeatedly made clear that it does not support the
establishment of vast systems of public surveillance. Yet our science
agencies and many of our top researches are now pursuing precisely
this mission. We believe this must change."

The letter was accompanied by a brief survey of technology programs
currently funded by the federal government, including US-VISIT, MATRIX
and other data mining and mass surveillance initiatives.

The prestigious Norbert Wiener Award is presented annually by the
Computer Professionals for Social Responsibility in recognition for
outstanding contributions for social responsibility in computing
technology.  Previous winners who signed the letter include Karl
Auerbach, Brian Behlendorf, Laura Gould, Dan McCracken, Peter G.
Neumann, Severo Ornstein, Theodore A. Postol, Eric S. Raymond, Barbara
Simons, Richard M. Stallman, Barry Steinhardt, Joseph Weizenbaum, and
Philip Zimmermann.  Rotenberg received the award in 2000.

The open letter from Norbert Wiener Award winners:


Computer Professionals for Social Responsibility:


[3] Ethics Committee Reprimands Congressman For Misleading Agency

A Congressional ethics committee unanimously voted earlier this month
that House Majority Leader Tom DeLay (R-TX) used his position to exert
undue influence over a federal agency.  The rebuke was the second one
DeLay received in a six-day period.

The U.S. House of Representatives' Committee on Standards of Official
Conduct admonished DeLay for misleading Federal Aviation
Administration officials when he asked them to search for Texas
lawmakers who left the state last year to prevent a vote on
congressional redistricting.  The Committee concluded that DeLay's
conduct "raises serious concerns" under House rules that "precluded
use of government resources for a political undertaking."  It noted
that one FAA official later said he felt he "had been used" for
political purposes.  DeLay's role in the matter "raises serious
concerns under these standards of conduct," the report said.

In response to a 2003 Freedom of Information Act request, EPIC
obtained audio recordings between the FAA's Washington office and
field offices indicating that FAA officials were led to believe that
DeLay's request was part of a formal Congressional investigation.

The committee also admonished DeLay for soliciting political donations
from Kansas-based Westar Energy Inc. that created an appearance that
such donations would lead to "special treatment or special access to
[a] member" of the House.  DeLay participated in a Westar golf
fundraiser, which raised money for DeLay's political committee around
the same time a House-Senate conference on major energy legislation
was to take place.  The committee deferred a third part of the
complaint, which dealt with the fundraising group Texans for a
Republican Majority Political Action Committee, to which DeLay is
closely linked.

Statement of the Committee:


FAA conversations on Texas Democrats obtained by EPIC under the FOIA:


[4] Federal Agency Approves RFID Implant for Health Care Use

The Food and Drug Administration has approved the use of an
implantable computer chip for health care information applications.
VeriChip is a radio frequency identification (RFID) device about the
size of a grain of rice.  Each chip contains a unique verification
number that is revealed by passing a scanner over the chip.  This
unique number in turn links to a medical record (blood type, patient's
allergies, prior treatments, etc.) stored on a database.  The chip
manufacturer claims that the chip, by disclosing a patient's medical
information to doctors with a RFID reader, could save lives and limit
injuries from errors in medical treatment.  The company promotes the
chip as a universal means of identification, and expects the device to
be used in a variety of applications including financial and
transportation security, residential and commercial building access,
military and government security.

Although the RFID tag in the VeriChip is passive at this stage of the
technology -- which makes it impossible for current RFID readers to
scan the chip from more than a few feet away -- quick progress in the
technology could soon make a chip active.  This would enable the chip
to spontaneously broadcast radio waves, allowing for human tracking on
a permanent basis without requiring the presence of a scanner.  The
chips have already been used in recent years for non-medical purposes.

Once implanted, a VericChip could threaten an individual's right to
privacy if she is not able to remove the chip or prevent further
scanning of the chip.  Indeed, The director of the Office of Device
Evaluation at the FDA Center for Devices and Radiological Health told
the Privacy Times (Vol. 24 Number 19, Oct. 20, 2004) that "by agreeing
to have the chip implanted, the understanding would be that a patient
has tacitly agreed to make information [stored in the VeriChip]
available to someone with a reader."  She added that the potential for
unauthorized medical records access "is an issue."

Although no regulation currently exists in the United States to
restrict potential abuses of the chip, the European Union and a few
other countries around the world already have rules or guidelines in
place that apply basic data protection principles to any collection
and use of information through the use of RFID technology.  The U.S.
Federal Trade Commission recently acknowledged that it would have
jurisdiction over unfair or deceptive practices that involve the use
of RFID tags, particularly in cases where a companyinvolved in tag
scanning does not comply with its posted privacy policy.

For more information about VeriChip, see EPIC's VeriChip Page:


For more information about radio frequency identification, see EPIC's
RFID Page:


[5] Foreign Government Seizes Indymedia Servers in UK

On October 7, hard drives from two Independent Media Center servers
were seized from the London office of the U.S.-owned web hosting
company Rackspace.  The seizure was performed at the request of the
U.S. Justice Department, reportedly in collaboration with Italian and
Swiss authorities.  The drives were returned on October 12 with no

Independent Media Center, commonly known as Indymedia, is a global
media network where independent media organizations and thousands of
journalists offer grassroots coverage of news events.  The seizure of
the Indymedia servers has stifled expression and silenced independent
reporting in about twenty countries whose Indymedia sites were hosted
on the two UK servers.

Indymedia received no court order explaining the situation or its
rights because its property was seized from Rackspace.  Rackspace was
served with the court order and then prevented from providing
Indymedia, the owner of the property, with any information as to who
confiscated the servers and why.  There had been no prior attempt to
contact the site administrators or the owners of the hardware.  After
the seizure, Indymedia was left with no information and unsure of
which government to address.  The organization remains uninformed as
to which country initiated the seizure.  Early reports suggested the
servers were seized by the FBI, though the Bureau now denies this
role.  Attorneys from the Electronic Frontier Foundation have agreed
to investigate.

Indymedia issued a statement saying, "We are concerned over the
growing use of international co-operation frameworks by Governments
and Law enforcement agencies which can be used to obscure clear legal
process, and call for openness and clarity in international
co-operation, to ensure due process and that civil liberties are

The United Nations is currently establishing a Working Group on
Internet Governance to determine whether there is a need for some form
of global Internet governance.  This case makes it clear that there
are civil liberties loopholes in the current governance systems and
raises significant questions about international law enforcement

Indymedia and supporters have initiated a solidarity campaign and
drafted a petition against the takeover of their servers.  They are
appealing to UK MP David Blunkett and U.S. Attorney General John
Ashcroft for more information regarding the legality of the seizure,
the responsibilities of the server host, and the accountability of the
countries involved.

Indymedia's statement on the seizure:


For updates and news on the Working Group on Internet Governance, see
the Public Voice web site:


The Public Voice Action Alert:


[6] News in Brief


A three-judge panel of the U.S. Court of Appeals for the Eleventh
Circuit has ruled unanimously that the screening of protesters outside
of the School of the Americas is unconstitutional.  Demonstrators
gather annually on public property outside of Fort Benning, Georgia to
protest the combat training of Latin American soldiers at the School
of the Americas (recently renamed the Western Hemisphere Institute for
Security Cooperation).  Prior to a November 2002 vigil outside the
training facility, the city police instituted a search policy
requiring protesters to pass through metal detectors.  The protesters
argued this policy violated their First and Fourth Amendment rights,
but the city said the search was necessary due to the War on Terror
and fears of a terrorist attack. The judges responded, "We cannot
simply suspend or restrict civil liberties until the War on Terror is
over, because the War on Terror is unlikely ever to be truly over."
Judge Gerald Tjoflat wrote in the opinion, "Sept. 11, 2001, already a
day of immeasurable tragedy, cannot be the day liberty perished in
this country."  Protesters gathering at the training facility next
month will have the right to free speech without first having to be

The Eleventh Circuit's decision in Bourgeois v. Peters:


For more information about protesters' rights, see EPIC's Protester
Privacy Page:



The architect of controversial government data mining programs has
taken his ideas to a private, offshore company, the Washington Post
has reported.  Ben H. Bell III, the former director of the Office of
National Risk Assessment, helped design the now-defunct Computer
Assisted Passenger Pre-Screening program (CAPPS II), and is now using
similar concepts and technology with his new employer, Bahama-based
Global Information Group Ltd.  CAPPS II, a data mining system that
strived to color-code threats by airline passengers based on
pattern-matching algorithms, was derailed by Congress due to concerns
about effectiveness and privacy implications.  Global Information
intends to privatize this "terrorist risk identity assessment," as
well as perform checks on cargo ship crews, foreign job candidates,
and those who wish to open U.S. bank accounts.  By basing its
operations in the Bahamas, the private company is able to avoid U.S.
regulatory standards and oversight of its handling of sensitive
personal data.

For more information about CAPPS II, see EPIC's Passenger Profiling



Bowing to intense industry pressure, the Federal Communications
Commission has delayed implementation of new rules that would prevent
"junk faxes," unsolicited commercial facsimile messages that were
prohibited by Congress in 1991.  The new rule requires commercial fax
senders to obtain written consent from recipients, and limits the
"established business relationship" exemption, shortening the length
of time that solicitations could be sent to eighteen months after a
purchase or transaction, and three months after a customer makes an
inquiry to a business (see EPIC Alert 11.11).  The rules now will not
take effect until June 30, 2005.

The stay gives Congress more time to consider junk fax regulation.
Earlier this year, the House passed legislation, but the full Senate
has yet to consider a bill (see EPIC Alert 11.15).  In testimony
before the Senate Commerce Committee in September, EPIC cautioned that
loosening the regulations "will open individuals to hundreds or even
thousands of unwanted commercial fax solicitations."

A few days after the FCC's stay, the California and Indiana Attorneys
General secured a broad-ranging preliminary injunction against
Fax.com, a prominent junk fax company, and the company's principals.
The injunction requires Fax.com to comply with the Telephone Consumer
Protection Act of 1991, and prohibits the company from engaging in
"war dialing," the practice of randomly calling numbers in order to
identify fax lines.

EPIC's testimony on junk fax regulation:


For more information about junk faxing, see the EPIC Telemarketing and
Junk Fax Page:



The National Crime Victim Bar Association recently awarded New
Hampshire Attorney David Gottesman the Frank Carrington Champion of
Civil Justice Award.  The award is presented each year to an attorney
who best exemplifies a commitment to helping victims of crime secure
justice through the civil courts.

Gottesman received the award for his work in Remsburg v. Docusearch,
Inc., in which he represented the estate of twenty-year-old Amy Boyer
in a lawsuit against an Internet-based information broker.  Docusearch
sold a stalker personal information about Boyer, including her work
address, which was obtained under false pretenses.  Boyer's stalker
used the information to track her down and fatally shoot her as she
left work.  The New Hampshire Supreme Court ruled that businesses must
use reasonable care when selling personal information and that
obtaining that information under false pretenses violates the Consumer
Protection Act.  The court further held that a jury could decide that
selling a person's Social Security Number is sufficiently offensive to
warrant monetary damages.

EPIC submitted an amicus brief in the case supporting greater privacy
protections against pretextual calling and the sale of Social Security
Numbers.  EPIC also argued in favor of stronger state privacy laws.

The National Crime Victim Bar Association:


EPIC's amicus brief in Remsberg v. Docusearch:


For more information about the Amy Boyer case, see EPIC's page on
Remsberg v. Docusearch:



The Federal Trade Commission is planning a public workshop on
peer-to-peer file sharing.  The event, entitled "Peer-to-Peer
File-Sharing Technology: Consumer Protection and Competition Issues,"
will be held December 15-16 at the FTC Conference Center in
Washington, DC.  The workshop is free and open to the public.
Pre-registration is not necessary.  Topics will include how P2P
file-sharing works, current and future applications, risks to
consumers, and competition issues such as P2P's effect on copyright
holders.  The FTC is seeking public comment and requests to
participate as workshop panelists.

For more information, see the FTC's P2P workshop page:


For information on submitting comments or panel participation, see the
FTC's Federal Register notice:


EPIC's open letter on P2P privacy:


[7] EPIC Bookstore: The Identity Theft Protection Guide

Amanda Welsh, Ph.D., The Identity Theft Protection Guide (St. Martin's
Griffin 2004).


"Identity theft is the fastest-growing category of crime in the U.S.
today -- each year, over ten million Americans wake up to find their
'identity stolen.'  It's become clear that dealing with privacy and
identity issues is an essential part of life in our modern society.
Each chapter in this invaluable book contains a self-quiz to identify
personal areas of concern, information to help 'take action' and more.

This book shows you how to:

     * Minimize the risk of identity theft
     * React to stolen identity
     * Obtain and repair credit and insurance reports
     * Deal with direct marketers, junk mailers, telephone solicitors
     * Protect from hacking and spam
     * Keep kids safe in the online environment
     * Be aware of surveillance in today's electronic world
     * Repair a stolen or damaged identity.

These invaluable survival skills can no longer be considered optional
-- they are essential for life in a wired society.  The Identity Theft
Prevention Guide is the most complete, authoritative and easy-to-use
resource on this crucial topic."


EPIC Publications:

"FOIA 2004: Litigation Under the Federal Open Government Laws," Harry
Hammitt, David Sobel and Tiffany Stedman, editors (EPIC 2004). Price:
$40. http://www.epic.org/bookstore/foia2004

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 22nd
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.


"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, as well as 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 2003: United States Law, International
Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2003).
Price: $40. http://www.epic.org/bookstore/pls2003

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.


"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

2004 Big Brother Awards Netherlands.  October 24, 2004. Amsterdam,
Netherlands.  For more information: http://www.bigbrotherawards.nl.

DRM 2004: The Fourth ACM Workshop on Digital Rights Management.
Association for Computing Machinery Special Interest Group on
Security, Audit and Control.  October 25, 2004.  Washington, DC.  For
more info: http://mollie.engr.uconn.edu/DRM2004.

2004 Big Brother Awards Austria.  October 26, 2004.  Vienna, Austria.
For more information: http://www.bigbrotherawards.at.

Sunshine on Public Data: Conference on Freedom of Electronic
Information. Hungarian Ministry of Informatics and Communications and
Central European University.  October 26, 2004.  Budapest, Hungary. 
E-mail krisztina.pentekne at ihm.gov.hu.

Private and Private International Law Issues Raised by Electronic
Commerce.  The Hague Conference on Private International Law, the
Netherlands Government and the International Chamber of Commerce.
October 26-27, 2004.  The Hague, Netherlands.  For more information:

IAPP Privacy and Data Security Academy & Expo.  International
Association of Privacy Professionals.  October 27-29, 2004. New
Orleans, LA.  For more information:

Privacy and Security: Seeking the Middle Path.  Office of the
Information & Privacy Commissioner of Ontario; Centre for Innovation
Law and Policy, University of Toronto; and Center for Applied
Cryptographic Research, University of Waterloo.  Toronto, Ontario,
Canada.  October 28-29, 2004.  For more information:

2004 Big Brother Awards Germany.  October 29, 2004.  Bielefeld,
Germany.  For more information: http://www.bigbrotherawards.de.

The 2004 Isaac Pitblado Lectures: Privacy -- Another Snail in the
Ginger Beer.  The Law Society of Manitoba, The Manitoba Bar
Association and the University of Manitoba Faculty of Law.  November
19-20, 2004.  Manitoba, Canada. For more information:

2004 Big Brother Awards Hungary.  November 25, 2004.  Budapest,
Hungary.  For more information: http://hu.bigbrotherawards.org.

National Security, Law Enforcement and Data Protection.  British
Institute of International and Comparative Law Data Protection
Research and Policy Group.  December 8, 2004.  London, UK.  For more
information: http:www.biicl.org.

14th Annual RSA Conference.  RSA Security.  February 14-18, 2005.  San
Francisco, CA.  For more information:

O'Reilly Emerging Technology Conference.  March 14-17, 2005.  San
Diego, CA.  For more Information:

7th International General Online Research Conference.  German
Society for Online Research.  March 22-23, 2005.  Zurich, Switzerland.
For more information: http://www.gor.de.

5th Annual Future of Music Policy Summit.  Future of Music
Coalition.  April 10-11, 2005.  Washington DC.  For more information:

CFP2005: Fifteenth Annual Conference on Computers, Freedom and
Privacy.  April 12-15, 2005.  Seattle, WA.  For more information:

2005 IEEE Symposium on Security and Privacy.  IEEE Computer Society
Technical Committee on Security and Privacy in cooperation with The
International Association for Cryptologic Research.  May 8-11, 2005.
Berkeley, CA.  For more information:

SEC2005: Security and Privacy in the Age of Ubiquitous Computing. 
Technical Committee on Security & Protection in Information Processing
Systems with the support of Information Processing Society of Japan. 
May 30-June 1, 2005.  Chiba, Japan.  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.
EPIC publishes the EPIC Alert, pursues Freedom of Information Act
litigation, and conducts policy research.  For more information, see
http://www.epic.org or write EPIC, 1718 Connecticut Ave., NW, Suite
200, Washington, DC 20009. +1 202 483 1140 (tel), +1 202 483 1248

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.

---------------------- END EPIC Alert 11.20 ----------------------