EPIC logo

                           E P I C  A l e r t
Volume 12.23                                           November 17, 2005

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


                        SPECIAL PATRIOT ACT ISSUE

Table of Contents
[1] Court Orders FBI to Release PATRIOT Documents to EPIC
[2] National Security Letters Snoop in Secret
[3] Lawyers Urge PATRIOT Act Oversight
[4] Reactions to EPIC's FBI Freedom of Information Revelations
[5] FBI Seeks Internet Wiretap Authority; EPIC Comments
[6] News in Brief
[7] EPIC Bookstore: "Information Privacy Law"
[8] Upcoming Conferences and Events



The PATRIOT Act, passed in a frenzy of activity following September 11,
dramatically expended the government's domestic spying powers. The Act
established new search authorities that lacked judicial oversight, and
the personal information of millions of American citizens was gathered
into government databases. According to the Washington Post, more than
30,000 national security letters were issued in a single year. Documents
obtained by EPIC under the Freedom of Information Act reveal clear
abuses of PATRIOT Act authority.

A debate about the future of the Patriot Act now rages in Washington.
Lawmakers must decide whether to renew controversial provisions,
such as the secretive library search authority, that would otherwise
expire. Regrettably, House and Senate conferees have agreed to
accept a Patriot Act renewal that lacks meaningful safeguards.

Civil liberties organizations have urged support for the following

    November 17, 2005

    Dear Members of Congress:

    We are writing to urge you to vote against adoption of the
    Conference Report on H.R. 3199, the Patriot Act reauthorization
    bill.   The bill fails to correct the flaws in the Patriot Act
    that threaten the privacy and civil liberties of all Americans.

    The bill’s changes to section 215 of the Patriot Act ­ the
    so-called library provision ­ provide no meaningful new
    protection.  The government retains the power to engage in
    essentially unlimited fishing expeditions for records of innocent
    persons.  The bill also does nothing to restrain the government’s
    massive use of national security letters.  In fact, the changes on
    national security letters affirmatively harm civil liberties by
    imposing unconstitutional criminal penalties for disclosure of
    receipt of a national security letter.

    We agree with Senators Craig, Durbin, Feingold, Murkowski, Salazar
    and Sununu ­three Republicans and three Democrats ­ that the
    Patriot Act reauthorization bill should  embody the Senate’s
    approach in requiring a connection between the records sought and
    a foreign terrorist or spy.  Anything less unacceptably
    compromises the liberties and privacy of the American people.

Reply to tmargossian@dcaclu.org before Friday, November 18
at 1 pm.

This issue of the EPIC Alert details several of the ongoing problems
with the Patriot Act.

[1] Court Orders FBI to Release PATRIOT Documents to EPIC

On November 16, a federal judge ordered the FBI to publicly release or
account for thousands of pages of information about the government's use
of USA PATRIOT Act powers. The order came as Congress considers whether
to renew provisions of the PATRIOT Act that would otherwise expire.

In a Freedom of Information Act request filed in March, EPIC asked the
Bureau for information about how it has used investigative authority
granted by these expiring provisions of the PATRIOT Act.  These
provisions, many of which have been among the most controversial parts
of the law, are scheduled to lapse next month unless Congress takes
further action.

Noting that Congress would soon hold hearings on whether to renew the
sunsetting provisions, EPIC asked the FBI to release the information
quickly.  When the Bureau failed to act, EPIC filed a lawsuit in April
to force the agency to make the information public. The Bureau released
a small number of pages just last month, after Congress had concluded
its hearings and already drafted legislation to renew the sunsetting
provisions.  The few documents that were disclosed included reports of
intelligence misconduct from the FBI to an intelligence oversight board,
which attracted widespread media attention (see EPIC Alert 12.22).

In a court hearing last week, Judge Gladys Kessler expressed frustration
that the FBI failed to release the information while it could still
inform the congressional debate on the PATRIOT Act. Congress is expected
to vote on a finalized version of the PATRIOT renewal bill within days.
According to Judge Kessler, "the record shows that [the FBI's] efforts
have been unnecessarily slow and inefficient."

Judge Kessler's Order (pdf):


EPIC's Freedom of Information Act documents on the USA PATRIOT Act:


EPIC's USA PATRIOT Act sunset page:


[2] National Security Letters Snoop in Secret

Critics of the PATRIOT Act frequently focus not only on the expansion of
surveillance powers the Act grants to the federal government, but also
on the widespread secrecy that the Act grants to law enforcement
investigations.  One particularly powerful tool is the "national
security letter," which prevents its recipients from reporting that they
have been asked for information, or indeed that they have received the
letter itself.

The PATRIOT Act's national security letter provision allows the
government to obtain information about anyone, so long as the records
are "sought for" or are "relevant to" an investigation regarding
international terrorism or clandestine intelligence. This greatly
expands the use of national security letters. The previous standard
required the FBI to provide "specific and articulable" reasons it
believed that the information was about an "agent of a foreign power."

According to a recent Washington Post story, over 30,000 national
security letters are issued each year, over a hundred times as many as
were issued before the PATRIOT Act's passage.  This stands in stark
contrast to a warning given in an internal memo uncovered by EPIC and
other civil liberties groups.  The memo, dated November 28, 2001, states
that the letters "must be used judiciously" and that the FBI must
"accomplish its investigations through the 'least intrusive' means."

A major problem with national security letters is the secrecy
surrounding their use.  Recipients of the letters are prohibited from
speaking about the government's request for information, and information
about how often the letters are used is not revealed to the public.
Among the documents uncovered by an EPIC Freedom of Information Act
request is an apparent list of national security letters from 2003. The
contents of the list have been blacked out by the FBI, with the
exception of the words "Grand Total" at the bottom of the column.  The
number following these words has also been blacked out.

Library and civil liberties associations have argued that the statute
authorizing national security letters is unconstitutional. In Doe v.
Gonzalez, a federal court in Connecticut held that a national security
letter could not prevent a library from revealing itself as a recipient
of the letter.  The case is on track for an expedited appeal before the
Second Circuit Court of Appeals.



FBI Memo dated November 28, 2001 (pdf):


Redacted list of national security letters (pdf):


Washington Post story:


[3] American Bar Association Calls for PATRIOT Act Oversight

The American Bar Association is "concerned that there is inadequate
Congressional oversight of government investigations undertaken pursuant
to the Foreign Intelligence Surveillance Act to ensure that such
investigations do not violate the First, Fourth, and Fifth Amendments to
the Constitution," according to a November 9 letter from the President
of the ABA to Members of Congress considering renewal of the PATRIOT Act.

The ABA urged Congress to "requir[e] that the annual report by the
Attorney General, currently required by FISA, include specific
statistical information on the use of FISA physical search authority and
FISA pen/register trap and trace authority." Current statistics show an
increasing use of surveillance techniques.

The latest FISA Annual Report revealed that electronic surveillance was
at an all-time high in 2004. There were 1,758 applications for secret
surveillance warrants in 2004, and none of the applications were denied.
In 2004, as in 2003, more secret surveillance warrants were granted than
federal wiretap warrants, which have more stringent standards.

A recent report on federal wiretap warrants revealed that state and
federal courts authorized 1,710 interceptions in 2004, an increase of 19
percent over 2003 and more than in any previous year. Federal officials
made 730 intercept applications in 2004, a 26 percent increase over 2003.

The letter from the American Bar Association (pdf):


The latest FISA Annual Report (pdf):


U.S. courts' 2004 Wiretap Report:


The American Bar Association's Resolution on FISA:


EPIC's FISA page:


[4] Reactions to EPIC's FBI Freedom of Information Revelations

     From "Checking FBI Spying," Washington Post editorial:
     November 10, 2005

The surveillance reports, generated by the FBI general counsel's office
and released under a Freedom of Information Act lawsuit, are heavily
redacted. Still, they show that there have been at least 13 cases
between 2002 and 2004 of violations serious enough that the FBI itself
determined they must be reported to an executive branch agency called
the Intelligence Oversight Board. Moreover, the case numbers on the
released documents suggest that there were hundreds of potential
violations examined by the bureau during that period. This is cause for
concern. Errors happen in any complex bureaucracy, and it isn't clear
that these are serious ones in civil liberties terms rather than mere
technical mistakes. Moreover, in some sense, the existence of these
documents is encouraging. They are the results of the bureau's internal
reporting of errors, and the general counsel's office appears to be
giving conscientious review to those cases that come its way -- at least
in cases the bureau chose to release. In other words, this limited cache
of documents could reflect dangerous carelessness in the field or a good
system for catching mistakes -- or even both at the same time.

     "Patriot Act Abuses: More than Meets the Eye"
     November 16, 2005

We appreciate the Nov. 10 editorial "Checking FBI Spying" about the
dramatic increase in "national security letters." It raised timely
questions about the use of authority granted by the USA Patriot Act.
However, the documents that the Electronic Privacy Information Center
(EPIC) received from the FBI under the Freedom of Information Act
regarding domestic intelligence investigations cannot be dismissed as
"technical mistakes" or the result of a "complex bureaucracy."

When the FBI determines that domestic intelligence investigations were
conducted contrary to law and in violation of the individual rights of
U.S. citizens, the law requires that these cases be reported to the
Intelligence Oversight Board. Administrative errors do not require
reporting to the board.

EPIC obtained documentation of a dozen such referrals. Subsequent
reporting uncovered 113 violations since last year. And the numbering
system associated with these reports suggests that several hundred such
cases may have occurred since passage of the Patriot Act in 2001.

The attorney general and the director of the FBI assured Congress during
hearings on the Patriot Act's renewal that they knew of no verified
cases of civil liberties abuses. We believe that the administration has
not been forthcoming about the extent of the problems with the Patriot
Act. Better methods of oversight and reporting are clearly needed.

     Executive Director

     Staff Counsel

     Electronic Privacy Information Center

Washington Post editorial on FBI Spying:


EPIC's letter to the editor on PATRIOT Act abuses:


[5] FBI Seeks Internet Wiretap Authority; EPIC Comments

Even as Congress considers whether to renew the PATRIOT Act, the FBI is
pressing the FCC to expand its wiretap authority. The Communications
Assistance for Law Enforcement Act of 1994 requires communications
providers to design their systems so that law enforcement agencies can
listen in on communications easily.  Expanding the scope of this law to
VoIP could mean that the same security backdoors could be required of
any number of Internet-connected devices and computer programs.

The Act was created when the FBI and other law enforcement agencies
became worried that advances in communications technology made it
difficult for them to conduct electronic surveillance.  They therefore
pushed for a law that would require telecommunications carriers to make
systems that could be tapped easily. The law, passed in 1994, also
specified that these security backdoor requirements would apply only to
telecommunications carriers, who provide telephone services, and not to
"information services," like Internet service providers.

Ten years later, however, the Department of Justice petitioned the FCC
to bring broadband services and VoIP under the scope of the Act.  This
led to a rulemaking, which held that broadband Internet providers were
covered. The rule also said that VoIP services that connected to the
phone network should also be required to have the security backdoors
built in. EPIC, in a coalition with other civil liberties groups and
businesses, filed a court challenge to that rulemaking.  That challenge
is still pending.

The current rulemaking by the FCC contemplates extending the Act's scope
further, including VoIP services that do not connect with the telephone
network.  This expansion could mean that services as diverse as instant
messaging programs, computer-to-computer VoIP applications, and
videogame chat functions would have to be designed with easy government
surveillance in mind.

EPIC has filed comments in opposition to this proposed expansion of the
Act's scope, stating that the FCC has acted contrary to the language of
the statute, and that its expansion of the law will lead to increased
privacy and security vulnerabilities.

FCC's broadband Order, with proposal on further expansion (pdf):


EPIC's Comments on FCC's proposed rulemaking (pdf):


EPIC's Wiretap page:


[6] News in Brief

White House Orders Increased Information Sharing

On October 25, President Bush signed Executive Order 13388, which
expands the number of entities with which federal agencies must share
information. The order supersedes and revokes an earlier order, which
required agencies to share information with "appropriate authorities of
States and local governments." The new order expands this list to
include tribal governments, as well as "appropriate private sector
entities." The information to be shared is broadly defined, and
includes any information that could somehow be related to terrorist
individuals or groups, or individuals or groups believed to be
associated with terrorist individuals or groups.

Executive Order 13388:


EPIC Files "Friend of the Court" Brief in Workplace Surveillance Case

EPIC has filed an amicus brief in Nelson v. Salem State College, a case
in which the highest court in Massachusetts is considering whether a
state college violated an employee's privacy by conduct ongoing secret
video surveillance in her workspace. EPIC's brief argues that the law
must recognize that people have a reasonable expectation of privacy from
camera surveillance, or society has virtually no reasonable expectation
of privacy outside the home. EPIC also argues that the law must require
covert video surveillance to be conducted only by well-trained and
carefully supervised officials to ensure the investigative technique is
not abused.

EPIC Amicus Brief in Nelson v. Salem State College (pdf):


EPIC's Nelson v. Salem State College Page:


Medical Records Privacy Important to Americans, Survey Finds

Sixty-seven percent of adults are concerned about the privacy of their
personal medical records, according to a poll by the California
HealthCare Foundation and the Health Privacy Project. Also, 52 percent
fear that their health insurance information might be used by employers
to limit job opportunities. Congress is considering a proposal to build
a national Health Information Network, but it does not yet include
adequate privacy safeguards. EPIC and Patient Privacy Rights are calling
for strong medical privacy protections in an online petition.

National Consumer Health Privacy Survey 2005 by the California
HealthCare Foundation and the Health Privacy Project:


Medical Privacy Petition:


EPIC's Medical Privacy page:


TransUnion, ChoicePoint Report Data Breaches

TransUnion LLC, one of the three major credit reporting agencies
recently reported that unauthorized persons had accessed the data,
including Social Security numbers, of over 3,000 consumers. The data,
stored on a computer stolen from a California office, is stored behind a
password prompt. TransUnion says this means that the information is
unlikely to be abused.  California law currently requires that all data
breaches be reported, while many pending federal bills would remove any
notification requirement if the data is encrypted or stored behind a

ChoicePoint, the data brokerage firm that disclosed last year that it
had sold consumer data to identity thieves, revealed recently that
17,000 more consumers were affected by its data breach. This brings the
total number of consumers affected by this single breach to 162,000.  At
least 750 cases of identity theft have been reported as a result of the
breach. This may not be the total harm, however: it is often difficult
for identity theft victims to pinpoint the source of a data breach, and
ChoicePoint has said that further announcements of breaches were

EPIC's ChoicePoint page:


Groups Outline Effective ID Theft Law
 EPIC and 12 privacy and consumer groups set out a framework for
 effective legislation to address the growing problem of identity theft.
 Identity theft now costs the economy over $50 billion annually, and
 consumers foot much of the bill. The groups recommend strong
 notification requirements, better consumer control over personal
 information, limits on the use of the SSN, regulation of commercial
 data brokers, and protection for good state privacy initiatives.

Coalition Letter on Effective Identity Theft Prevention:
EPIC's Choicepoint Page:

Senate Considers Data Broker Regulation

On November 17, the Senate Judiciary Committee approved a bill intended
to protect consumers when data brokers reveal sensitive personal
information. The bill, S. 1789, requires a data broker to warn consumers
about a data breach if they face a "significant risk of harm" because of
the breach. The bill passed out of committee, with 13 votes for and 5
against.  While 1789 lacks some provisions that would make a truly
effective consumer protection law, it remains the strongest of the
several data privacy bills currently under consideration by Congress.

S. 1789, the Personal Data Privacy and Security Act of 2005:


EPIC Replies to Carriers on Access to Phone Records
EPIC has taken a number of steps to eliminate the private risks caused
by "online data brokers," companies that offer to obtain the information
of others through trickery.  These companies often offer to obtain phone
records without the knowledge or consent of the account holder.

EPIC first filed a complaint at the Federal Trade Commission,
highlighting the activities of a specific online data broker that now is
reportedly being investigated by state attorneys general.  EPIC also
petitioned the Federal Communications Commission to require carriers to
increase their protection for phone records.  The carriers uniformly
opposed EPIC's petition, arguing that there should be enforcement
actions brought against the online data brokers, but no additional
requirements to protect phone records.

The carriers' responses reveal that there is disparity in their ability
to provide security for records.  One carrier, for instance, balked at
auditing requirements, claiming that the cost of implementation of this
basic security measure would exceed $270 million.  Other carriers
claimed that they already audit access to consumer records.

EPIC replied to these oppositions, stating that the mere existence of 40
different websites that advertise the ability to obtain phone records
points to serious security weaknesses at the carriers.  Furthermore,
several news reporters have successfully obtained phone records using
these online data brokers to test the carriers' security.

EPIC Reply Comments:
EPIC Phone Record Privacy Page:

Privacy Protections Urged for Online Court Records
In recent years, federal and state courts have revisited their policies
for access to public records because these registers frequently contain
personal information.  Many of the identifiers necessary to commit
identity theft, for instance, can be found in county-level property
records and other public records.  Pennsylvania is the most recent state
to formulate a policy for access to electronic court records.  The
proposed policy will eliminate Social Security numbers, full dates of
birth, drivers license numbers, and full home addresses from electronic
versions of court records.  EPIC's comments on the proposed policy
praised the policymakers for attempting to remove unique identifiers
from the publicly-available file.  EPIC urged the policymakers to apply
the protections to paper records as well, and to create a mechanism so
that individuals can correct errors in court records easily.

EPIC Comments on Pennsylvania Access Policy:
EPIC Public Records Page:

[7] EPIC Bookstore: "Information Privacy Law"

By Daniel J. Solove, Marc Rotenberg, and Paul M. Schwartz


For too many law students, informational privacy is a concept introduced
briefly in a first year torts class, and perhaps obliquely referenced in
a constitutional law course.  "Information Privacy Law" is a valuable
resource to introduce students to the expansive universe of law
surrounding access to, and control of, personal information.

The book provides comprehensive coverage of privacy law, with
well-organized coverage ranging from privacy and the press to medical
and genetic privacy to international privacy law.  Two separate chapters
explore the collection of personal data both by government agencies and
by private companies.

Going beyond the chestnuts of privacy law, such as the Warren and
Brandeis article, the text discusses privacy law in context with its
historical development and current events.  The chapter on privacy and
law enforcement, for example, includes extensive sections on
intercepting computer and electronic communications, as well as
up-to-date discussion on the roles of surveillance and secrecy in
terrorism investigations.

Cases and articles are presented succinctly, with in-depth discussion
notes and questions designed to encourage thoughtful debate on these
evolving topics.  "Information Privacy Law" is a valuable and accessible
centerpiece for any course on privacy law.

 -- Sherwin Siy


EPIC Publications:

"Privacy & Human Rights 2004: An International Survey of Privacy Laws
and Developments" (EPIC 2004). Price: $50.

This annual report by EPIC and Privacy International provides an
overview of key privacy topics and reviews the state of privacy in over
60 countries around the world.  The report outlines legal protections,
new challenges, and important issues and events relating to privacy. 
Privacy & Human Rights 2004 is the most comprehensive report on privacy
and data protection ever published.


"FOIA 2004: Litigation Under the Federal Open Government Laws," Harry
Hammitt, David Sobel and Tiffany Stedman, editors (EPIC 2004). Price:

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


"The Public Voice WSIS Sourcebook: Perspectives on the World Summit on
the Information Society" (EPIC 2004). Price: $40.

This resource promotes a dialogue on the issues, the outcomes, and the
process of the World Summit on the Information Society (WSIS).  This
reference guide provides the official UN documents, regional and
issue-oriented perspectives, and recommendations and proposals for
future action, as well as a useful list of resources and contacts for
individuals and organizations that wish to become more involved in the
WSIS process.


"The Privacy Law Sourcebook 2004: United States Law, International Law,
and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price:

The Privacy Law Sourcebook, which has been called the "Physician's Desk
Reference" of the privacy world, is the leading resource for students,
attorneys, researchers, and journalists interested in pursuing privacy
law in the United States and around the world. It includes the full
texts of major privacy laws and directives such as the Fair Credit
Reporting Act, the Privacy Act, and the OECD Privacy Guidelines, as well
as an up-to-date section on recent developments. New materials include
the APEC Privacy Framework, the Video Voyeurism Prevention Act, and the


"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:

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 http://www.epic.org/bookstore

"EPIC Bookshelf" at Powell's Books


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:

[8] Upcoming Conferences and Events

The World Summit on the Information Society. Government of Tunisia.
November 16-18, 2005.  Tunis, Tunisia. For more information:

Citizens' Summit on the Information Society. CSIS International
Organizing Committee. November 16-18, 2005. Tunis, Tunisia. For more

Privacy Conference:  Building Bridges on ICANN's Whois Questions.
Noncommercial Users Constituency. November 29, 2005. Vancouver, Canada.
For more information (pdf): 

EU Data Protection Directive 45/96: 10 Years On. Linklaters. November
30, 2005. London, England. For more information:

Internet Corporation For Assigned Names and Numbers (ICANN) Meeting.
November 30-December 4, 2005. Vancouver, Canada. For more information:

Fifth International Conference on Data Mining. IEEE Computer Society.
November 27-30, 2005. Houston, TX. For more information:

Regulating Search: a Symposium on Search Engines, Law, and Public
Policy. Yale Information Society Project, Yale Law School. December 3,
2005. New Haven, Connecticut. For more information:

Committee Meeting of the Department of Homeland Security's Data Privacy
and Integrity Advisory Committee. Department of Homeland Security.
December 6, 2005. Washington, DC. For more information:

Privacy in the Information Age: Databasese, Digital Dossiers, and
Surveillance. High Tech Law Institute, Santa Clara University. January
27, 2006. Santa Clara, California. For more information:

First International Conference on Availability, Reliability and
Security. Vienna University of Technology. April 20-22, 2006. Vienna,
Austria. For more inofrmation:

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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 (fax).

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 12.23 -------------------------