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                           E P I C  A l e r t
Volume 13.10                                                May 16, 2006

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


 ACTION ITEM: Call-in to Congress and Protest Domestic NSA Surveillance

The Bill of Rights Defense Committee, in partnership with a group of
organizations including EPIC, is asking you to call your legislators to
protest the NSA's domestic call surveillance program.  For details,


Table of Contents
[1] EPIC Urges FCC to Open Investigation into NSA Datamining
[2] CIA Director Nominee Oversaw NSA Domestic Spying Programs
[3] Congress, Ex-NSA Director, Law Experts Assail NSA Program
[4] Phone Companies Under Fire for Disclosures to NSA
[5] Most Americans Want Investigation of NSA Program
[6] News in Brief
[7] EPIC Bookstore: Christian Parenti's "The Soft Cage"
[8] Upcoming Conferences and Events

[1] EPIC Urges FCC to Open Investigation into NSA Datamining

In the wake of news regarding the National Security Agency's
recently-disclosed program to mine the communications records of tens of
millions of Americans, EPIC is asking the Federal Communications
Commission to investigate the phone companies that turned customer
information over to the NSA. If the companies had disclosed customer
information without warrants or explicit customer approval, they likely
violated Section 222 of the Communications Act. This provision of
communications law requires telephone companies to keep customer records

In urging the investigation, EPIC joins FCC  Commissioner Michael Copps,
who called for an investigation on Monday. " We need to be certain that
the companies over which the FCC has public interest oversight have not
gone - or been asked to go - to a place where they should not be," Copps

This is the second secret NSA domestic spying program disclosed in the
last six months. In December, the New York Times reported that President
Bush secretly issued an executive order in 2002 authorizing the NSA to
conduct warrantless surveillance of international telephone and Internet
communications on American soil.

Government officials have refused to give details about either program,
saying such disclosures could harm national security. However, news
reports indicate that both programs are operating outside the bounds set
by the Foreign Intelligence Surveillance Act, which was passed after the
Watergate scandal to establish a legal basis for foreign intelligence
surveillance within the United States. The Bush Administration says that
both programs are continuing. The latest program contradicts statements
made by the White House and former NSA Director Michael Hayden that the
domestic surveillance program was "highly targeted" and directed only to
"International communications."

In the recently disclosed program, the agency is gathering
communications records for a massive database so that it can analyze
calling patterns as it tries to find terrorist activity. According to
the USA Today article, AT&T, Verizon and BellSouth handed over the data
even though the government did not have warrants. (BellSouth has since
denied cooperating with the program.) Qwest refused to give its
customers' data to the government, because the government did not have
warrants and refused to have either the Foreign Intelligence
Surveillance Court or the U.S. attorney general's office evaluate the
legality of the program. (Read more about the phone companies below.)

The Foreign Intelligence Surveillance Court issues warrants for secret
wiretap surveillance. The recently released Foreign Intelligence
Surveillance Act Report reveals that the government made 2,072 secret
surveillance requests to the court in 2005, a record high and 18 percent
more than in 2004. The court did not deny any of the requests.

EPIC's letter to the FCC (pdf):


Statement of FCC Commissioner Copps on the NSA Program (pdf):


EPIC Resources on Domestic Surveillance:


EPIC's Foreign Intelligence Surveillance Act Page:


NSA, FAQ on Signals Intelligence:


Foreign Intelligence Surveillance Act Report:


[2] CIA Director Nominee Oversaw NSA Domestic Spying Programs

General Michael Hayden, who served as director of the National Security
Agency during the implementation of two controversial surveillance
programs, has been nominated by President Bush to head the Central
Intelligence Agency. If confirmed, Hayden would run the country's most
prominent intelligence-gathering agency, which is charged with
collecting and analyzing information about foreign governments,
businesses, and people. Hayden, the highest-ranking intelligence officer
in the U.S. military, is currently Principal Deputy Director of National

While at the NSA from 1999 to 2005, Hayden oversaw the agency's
warrantless surveillance of international calls into and out of the
United States, and headed the agency when it began acquiring phone
records about Americans without legal authority.  According to the New
York Times, "by all accounts, General Hayden was the principal architect
of the plan.  He saw the opportunity to use the N.S.A.'s enormous
technological capabilities by loosening restrictions on the agency's
operations inside the United States."

The Senate Intelligence Committee will hold a confirmation hearing on
Hayden's nomination tomorrow. Several members of that committee have
publicly expressed concern about Hayden's role in the NSA's domestic
surveillance activities, as well as frustration that they were not fully
briefed on the extent of these operations. "There's no question that his
confirmation is going to depend upon the answers he gives regarding
activities of NSA," said committee member Senator Chuck Hagel.

Biographies of General Michael V. Hayden:



Senate Intelligence Committee Confirmation Hearing of General Michael
Hayden to be Director of the CIA:


[3] Congress, Ex-NSA Director, Law Experts Assail NSA Program

While the White House scrambled last week to defend its massive
collection of Americans' phone records, high-level government officials
and legal experts disputed the legality of the database and the secrecy
surrounding the NSA's activities.

Members of Congress across the political spectrum blasted the database.
Critics included the Senate Judiciary Committee's chairman and numerous
members of House and Senate oversight committees. Just hours after the
existence of the database was reported by USA Today, Representative Jane
Harman, the ranking member of the House Intelligence Committee,
introduced a bill that would underscore the illegality of conducting
electronic surveillance on Americans outside the Foreign Intelligence
Surveillance Act.

In addition, former NSA director Bobby Ray Inman spoke out after hearing
news of the phone records collection, declaring that "we can do what the
country needs and work within the law."

Legal experts have also weighed in on the illegality of the database.
Harvard constitutional law professor Laurence Tribe railed against the
argument that individuals have no constitutional right to privacy in
phone numbers they dial. "Even if one trusts the president's promise not
to connect all the dots to the degree the technology permits, the act of
collecting all those dots in a form that permits their complete
connection at his whim is a 'search.' And doing it to all Americans, not
just those chatting with Al Qaeda, and with no publicly reviewable
safeguards to prevent abuse, is an 'unreasonable search' if those Fourth
Amendment words have any meaning at all," Professor Tribe wrote in a
Boston Globe op-ed.

Professor Orin Kerr from the George Washington University Law School
tentatively concluded that the program implicated "no Fourth Amendment
issues . . . but a number of statutory problems." He speculated that the
program might violate a cadre of laws that restrict the collection of
communications-related information such as the Foreign Intelligence
Surveillance Act, Stored Communications Act, and the law regulating use
of pen registers (electronic devices that capture dialed phone numbers).

Marty Lederman, a professor at Georgetown Law School and former attorney
advisor in the Justice Department's Office of Legal Counsel, agreed with
Kerr's analysis, noting that the NSA's collection of phone records "sure
does appear to run up against several statutory restrictions that
Congress and the President have enacted in order to protect the privacy
of our phone calls and phone records, not least of which is FISA

H. 5371, the LISTEN Act:


Laurence H. Tribe, Bush Stomps on Fourth Amendment, Boston Globe:


Professor Orin Kerr on the NSA's collection of domestic phone records:


Professor Marty Lederman on the NSA's collection of domestic phone records:


[4] Phone Companies Under Fire for Disclosures to NSA

News about the NSA's call records spying program has focused increased
attention on the telephone companies who turned over information about
millions of their customers to the federal government. According to the
USA Today report, AT&T, Verizon, and BellSouth all voluntarily handed
over customer records at the NSA's request, although the agency refused
to seek a warrant or court order requiring the disclosure. (BellSouth
has since denied that it participated in the NSA program.) Of the phone
companies known to have been approached, only Qwest insisted that the
NSA produce a court order.

Qwest's decision was likely made not only in light of its customers'
privacy, but also because telecommunications carriers are required by
more than one law to keep phone records private. Carriers are bound not
only by Section 222 of the Communications Act, but also by the Stored
Communications Act, which also makes it illegal for a phone company to
give customer records to the government without a warrant or a court

Legal scholars have weighed in on the issue, determining that the
program, as described in initial reports, violates the Stored
Communications Act. In a column posted on FindLaw, University of
Washington law professor Anita Ramasastry said, "Based on what we know
now, it seems Qwest was entirely correct to refuse to comply.  [The
Stored Communications Act] specifically forbade it - and the other
companies - from doing what the government asked."

Ramasastry noted that the Stored Communications Act lets individual
consumers sue their telephone companies if their records have been
illegally disclosed.  Each violation carries a minimum penalty of
$1,000. With over 10 million Americans possibly affected, lawsuits
against the telephone companies could garner rewards in the billions of
dollars. Already, class action suits have been filed against the three
implicated companies.

Although Qwest is the only company known to have refused the NSA's
request for records, other telecommunications carriers have stepped
forward to say that they would not acquiesce to a similar request from
the government.  Among those carriers are RCN Communications, AOL Time
Warner, Comcast, Cox Communications, Cablevision Systems, Cingular
Wireless, EarthLink, Microsoft, and T-Mobile.

Professor Anita Ramasastry on the NSA program and the Stored
Communications Act:


[5] Most Americans Want Investigation of NSA Program

By a nearly 2-to-1 margin, 62% to 34%, Americans support immediate
congressional hearings to investigate the NSA's secret phone call record
database program, according to a recent USA Today/Gallup poll. The same
poll showed that 51% of Americans disapprove of the secret domestic
surveillance program.

Two-thirds of those polled say that they are concerned that the program
will lead to the targeting of innocent Americans as terrorism suspects.
About two-thirds expressed concern that the government is conducting
more domestic surveillance than just gathering phone call record data;
they are concerned bank records or Internet use records are also being

A Newsweek poll also reports that 53% of Americans said the NSA program
went too far in invading peoples' privacy. This poll also showed that
57% of those responding aid that, in light of the revelations of the
program and other events, the Bush administration has "gone too far in
expanding presidential power."

These two polls differ from a recent ABC News/Washington Post poll,
which found that 51% of those polled supported the phone call record
program. However, the ABC News/Washington Post poll was conducted the
day the secret surveillance program was revealed, while the USA
Today/Gallup poll was conducted a few days after. Also, the USA
Today/Gallup poll surveyed 60% more respondents, 809 adults to the 502
polled by ABC News/Washington Post.  The Newsweek poll surveyed 1007

USA Today/Gallup Poll:


Newsweek Poll:


ABC News/Washington Post Poll:


EPIC's Privacy and Public Opinion Page:


[6] News in Brief

Action Item: National Call-In to Protest NSA Surveillance

A coalition of civil liberties groups, including EPIC, is asking for
Americans to call their senators and representatives beginning May 17th
to protest the NSA's secret database of your call records.  Everyone is
encouraged to give Congress the chance to monitor and record the
public's displeasure at warrantless domestic surveillance.  The groups
backing the call-in include: Alliance for Justice, American Civil
Liberties Union, Bill of Rights Defense Committee, Council on
American-Islamic Relations, Electronic Privacy Information Center, First
Amendment Foundation, Friends Committee on National Legislation,
National Association of Criminal Defense Lawyers, National Coalition
Against Oppressive Legislation, National Lawyers Guild, People For the
American Way, and Unitarian Universalist Association of Congregations.

Information on How to Contact your Legislators:


EPIC Testifies in Support of SSN Privacy and Security

In testimony before the House Commerce Committee last week, EPIC
Executive Director Marc Rotenberg urged lawmakers to establish limits on
the use of the Social Security number. "The expanded use of the Social
Security number is fueling the increase in identity theft in the United
States and placing the privacy of American citizens are great risk,"
said Mr. Rotenberg. Congress is considering two bills that could provide
stronger privacy protection for consumers.

Hearing: Social Security Numbers in Commerce: Reconciling Beneficial
Uses with Threats to Privacy:


EPIC Testimony (pdf):


EPIC's Social Security Numbers page:


ICANN Rejects .xxx Registry

ICANN, the body that determines Internet domain name policy, rejected an
application by a company to create a .xxx registry.  The 9-5 vote
against the plan means that there will be no .xxx top level domain. Many
attribute the opposition to the new domain to conservative influences
within the United States who feel that creating a domain exclusively for
adult sites will legitimize pornography. However, civil liberties
advocates have also argued that creating the .xxx domain would run the
risk of easing censorship, as laws requiring adult sites to use .xxx
domains have been proposed.

ICANN Announcement:


Source Warns Reporters Their Calls May be Tracked

ABC News posted a blog item on May 15 claiming that an unnamed senior
federal law enforcement official warned reporters that their calls were
being tracked.  The source told investigative reporters at ABC that the
numbers they called were being tracked in order to identify potential
leaks. Other sources stated that phone numbers called by reporters at
ABC, the New York Times, and the Washington Post were being investigated
as part of a CIA leak investigation.

ABC News Post:


EPIC Comments on Telemarketer Petition Seeking Use of Auto Dialers

In comments to the Federal Communications Commission, EPIC urged the
agency to reject a petition by ACA International that would allow the
use of auto dialers by debt collectors. The Telephone Consumer
Protection Act of 1991 prohibits the use of auto dialers to contact
telephone devices. EPIC told the agency that the incidents of identity
theft in the US made the claim by ACA that it only seeks to collect
outstanding debt suspect. EPIC also told the agency that it correctly
interpreted Congressional intent in the rule promulgated and should not
reverse itself on this matter.

EPIC's Comments:


EPIC's Telemarketing Page:


[7] EPIC Bookstore: Christian Parenti's "The Soft Cage"

Christian Parenti. "The Soft Cage:Surveillance in America from Slavery
to the War on Terror." Basic Books, 2004.


"On a typical day, you might make a call on a cell phone, withdraw money
at an ATM, visit the mall, and make a purchase with a credit card. Each
of these routine transactions leaves a digital trail, logging your
movements, schedules, habits and political beliefs for government
agencies and businesses to access. As cutting-edge historian and
journalist Christian Parenti points out in this urgent and timely book,
these everyday intrusions on privacy, while harmless in themselves, are
part of a relentless expansion of routine surveillance in American life
over the last two centuries. Vivid and chilling, The Soft Cage explores
the hidden history of surveillance--from controlling slaves in the old
South to implementing early criminal justice, tracking immigrants, and
even establishing modern social work. It also explores the role
computers play in creating a whole new world of seemingly benign
technologies--such as credit cards, website "cookies," electronic toll
collection, "data mining." and iris scanners at airports. With fears of
personal and national security at an all-time high, this ever-growing
infrastructure of high-tech voyeurism is shifting the balance of power
between individuals and the state in groundbreaking--and very
dangerous--ways. From closed-circuit television cameras to the
Department of Homeland Security, The Soft Cage offers a compelling,
vitally important history lesson for every American concerned about the
expansion of surveillance into our public and private lives."

EPIC Publications:

"Information Privacy Law: Cases and Materials, Second Edition" Daniel J.
Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price: $98.

This clear, comprehensive introduction to the field of information
privacy law allows instructors to enliven their teaching of fundamental
concepts by addressing both enduring and emerging controversies. The
Second Edition addresses numerous rapidly developing areas of privacy
law, including: identity theft, government data mining,and electronic
surveillance law, the Foreign Intelligence Surveillance Act,
intelligence sharing, RFID tags, GPS, sypware, web bugs, and more.
Information Privacy Law, Second Edition, builds a cohesive foundation
for an exciting course in this rapidly evolving area of law.


"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.


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

RFID Security, Data Protection & Privacy, Health and Safety
Issues. European Commission Infomration Society. May 16-17, 2006.
Brussels, Belgium. For more information: 

Interoperability, standardisation, governance, and Intellectual Property
Rights. European Commission Infomration Society. June 1, 2006. Brussels,
Belgium. For more information: 

RFID Frequency spectrum: Requirements and Recommendations. European
Commission Information Society. June 2, 2006. Brussels, Belgium. For
more information: 

Call for papers for the CRCS Workshop 2006: Data Surveillance and
Privacy Protection. Center for Research on Computation and Society. June
3, 2006. Cambridge, Massachusetts. For more information:

7th Annual Institute on Privacy Law: Evolving Laws and Practices in a
Security-Driven World. Practising Law Institute. June 5-6, San
Francisco, California. June 19-20, New York, New York. July 17-18,
Chicago, Illinois. Live webcast available. For more information:

identitymashup: Who Controls and Protects the Digital Me? Berkman Center
for Internet & Society, Harvard Law School. June 19-21, 2006. Cambridge,
Massachusetts. For more information:

Infosecurity New York. Reed Exhibitions. September 12-14, 2006. New
York, New York. For more information:

34th Research Conference on Communication, Information, and Internet
Policy. Telecommunications Policy Research Conference. September
29-October 1, 2006. Arlington, Virginia. For more information:

6th Annual Future of Music Policy Summit. Future of Music Coalition.
October 5-7, 2006. Montreal, Canada. For more information:

The IAPP Privacy Academy 2006. International Association of Privacy
Professionals. October 18-20, 2006. Toronto, Ontario, Canada. For more

International Conference on Privacy, Security, and Trust (PST 2006).
University of Ontario Institute of Technology. October 20-November 1,
2006. Markham, Ontario, Canada. For more information:

BSR 2006 Annual Conference. Business for Social Responsibility. November
7-10, 2006. New York, New York. For more information:

CFP2007: Computers, Freedom, and Privacy Conference. Association for
Computing Machinery. May 2007. Montreal, Canada. 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
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If you'd like to support the work of the Electronic Privacy Information
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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 13.10 -------------------------