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   Volume 6.08                                       June 1, 1999
                            Published by the
              Electronic Privacy Information Center (EPIC)
                            Washington, D.C.
Table of Contents
[1] Congress Looks at Internet Privacy; EPIC Testifies
[2] Firm Ends "John Doe" Lawsuit After Learning Identities
[3] IFEA Urges FCC to Provide Balanced Info on Filtering
[4] House Demands Access to NSA Files on Echelon
[5] Court Rules that Media "Ride-Alongs" Violate Fourth Amendment
[6] Australia Close to Enacting Internet Censorship Law
[7] EPIC Bill-Track: New Bills in Congress
[8] Upcoming Conferences and Events
[1] Congress Looks at Internet Privacy; EPIC Testifies
On May 27, the Subcommittee on Courts and Intellectual Property of the
House Judiciary Committee held an oversight hearing on Electronic
Communications Privacy Policy Disclosures.  The focus of the hearing
was a recent industry survey on industry self-regulation and the
question of whether self-regulation would adequately protect online
privacy.  The industry survey followed a 1998 survey by the FTC on
Internet privacy policies and the 1997 EPIC survey, "Surfer Beware:
Personal Privacy and the Internet."
Testifying at the hearing were John Bentivoglio, Chief Privacy Officer,
U.S. Department of Justice; Jill Lesser, Vice President, Domestic
Public Policy, America Online, Inc.; Christine Varney, Chair, Online
Privacy Alliance; Jerry Berman, President, Center for Democracy and
Technology; Marc Rotenberg, Executive Director, Electronic Privacy
Information Center; Jerry Cerasale, Senior Vice President, Government
Affairs; Direct Marketing Association, Inc.; and Terry Pittman, Board
of Directors, TRUSTe.
EPIC Director Marc Rotenberg said that much more needs to be done to
protect online privacy.  "Current efforts to promote industry
self-regulation will not adequately address the public concerns about
privacy and the Internet."  Mr. Rotenberg said that "industry privacy
policies are literally papering over the growing problem of privacy
protection online."" He recommended that Congress help assemble the
building blocks for a privacy policy, including the establishment of a
privacy agency, the enforcement of Fair Information Practices, and the
development of new techniques that limit or eliminate the collection of
personally identifiable information.
While it is unclear at this point what steps Congress might take to
protect privacy on the Internet, it seems unlikely that the issue will
be going away anytime soon.  Public concerns about privacy continue to
rise as does the skepticism in Europe over the Commerce Department's
Safe Harbor proposal, which would allow the processing of data on
European citizens by U.S. firms without any legal framework to protect
privacy in place.
Senator John McCain (R-AZ), Chairman of the Senate Commerce Committee,
has announced that he will hold hearings on Internet privacy later this
The text of EPIC's testimony on Internet privacy is available at:
[2] Firm Ends "John Doe" Lawsuit After Learning Identities
A closely-watched case involving online anonymity has ended abruptly
after the plaintiff corporation learned the identities of 21 "John Doe"
defendants.  Raytheon Co. recently dismissed its lawsuit against a
group of people it claimed were spreading company secrets on an
Internet message board after the defense contractor succeeded in
obtaining the individuals' names.  The dismissal suggests that it may
have been the company's sole objective to identify the individuals,
without any intention of litigating the merits of its claims.  Such
legal tactics would raise serious questions about the potential for
abuse of the judicial discovery procedures in similar cases pending
around the country (see EPIC Alert 6.06).
In February, Raytheon filed suit against 21 "John Doe" defendants,
accusing the group of anonymously discussing rumored mergers and
acquisitions, impending divestitures and possible defense contracts on
a public message board.  In support of its suit, the company obtained
subpoenas against several Internet service providers, and eventually
learned the identities of all 21 defendants.  Several were believed to
be Raytheon employees who have left the company since the disclosures
(the circumstances of their departures have not been made public).
While many of the cases pending around the country involve serious
charges of alleged wrongdoing, there is no mechanism currently in place
to distinguish between someone who is hiding behind their anonymity to
commit a crime or other wrongful act, and someone with a legitimate and
lawful desire to communicate anonymously.  The outcome of the Raytheon
case is troubling because it suggests that judicial discovery
procedures can be used to destroy an individual's anonymity without any
determination of the validity of the underlying legal claim.  Until the
courts or Congress establish basic ground rules to govern discovery in
these cases, the number of subpoenas is likely to increase, with a
resulting chilling effect on anonymous Internet speech.
[3] IFEA Urges FCC to Provide Balanced Info on Filtering
In response to a speech delivered by Federal Communications Commission
Chairman William Kennard in which he encouraged the use of Internet
filters, more than a dozen organizations sent a letter to the Chairman
on May 13 urging him to present balanced information on the pros and
cons of filtering software at the Commission website.  The FCC's
"Parents, Kids & Communications" web page currently provides links to
the vendors of various software filtering products.
The members of the Internet Free Expression Alliance (IFEA) signing the
letter included EPIC, the American Booksellers Foundation for Free
Expression, the American Civil Liberties Union, the National Coalition
Against Censorship and People For the American Way Foundation.  The
groups told Kennard that "the public -- and policymakers -- must
closely examine filtering systems and carefully evaluate the filtering
criteria they employ, as poorly designed systems can damage the unique
character of the Internet."  They noted that "several independent
studies of these products indicate that the vendors often gloss over
some of the serious shortcomings of their filtering systems. We believe
that an objective and useful "information page" must apprise parents of
these findings."
In the interest of presenting a balanced view of the benefits and
detriments of filtering products, the IFEA members asked Kennard to
provide links to the critical studies, including EPIC's "Faulty
Filters" report, which documented the negative effects of a "family-
friendly" search engine.
The text of IFEA's letter is available at:
[4] House Demands Access to NSA Files on Echelon
Following recent revelations in Australia and Canada on the
international signals intelligence network known as ECHELON, Reps.
Porter Goss and Bob Barr have requested access to National Security
Agency files concerning the legality of the surveillance system.  On
May 13, Barr succeeded in attaching a requirement to the Intelligence
Authorization Act that would require the National Security Agency, the
CIA and the Justice Department to prepare a report on ECHELON for the
Congress within 60 days of its enactment.  The report would describe
the legal standards employed by elements of the Intelligence Community
in conducting signals intelligence activities, including electronic
surveillance.  This would include systems like ECHELON that eavesdrop
on international telecommunications.  As Barr explained, Congress
     is concerned about the privacy rights for American citizens
     and whether or not there are constitutional safeguards
     being circumvented by the manner in which the intelligence
     agencies are intercepting and/or receiving international
     communications back from foreign nations that would otherwise
     be prohibited by the prohibitions and the limitations on the
     collection of domestic  intelligence.
Strict limitations were placed on the ability of intelligence agencies
to collect information about U.S. citizens in the 1970s in the wake of
Watergate and other abuses.  Rep. Goss, who chairs the powerful House
Permanent Select Committee on Intelligence, had requested access to
files held by NSA's General Counsel, but the agency rebuffed the
request citing "attorney-client privilege."  In a report issued as part
of the Intelligence Authorization Act for fiscal year 2000, Goss wrote:
"for the first time in the committee's history, an Intelligence
Community element of the United States Government asserted a claim of
attorney-client privilege as a basis for withholding documents from the
committee's review."
The European Parliament's report on ECHELON is available at:
[5] Court Rules that Media "Ride-Alongs" Violate Fourth Amendment
The Supreme Court ruled on May 24 that police may not bring the media
into a home during the execution of a warrant, though the Court chose
not to allow the individuals who filed suit to recover against the
police for the Fourth Amendment violation.  The case -- Wilson v. Layne
-- grows out a 1992 search in which a team of Deputy United States
Marshals and Montgomery County (Maryland) Police, accompanied by a
reporter and a photographer from the Washington Post, entered the home
of the parents of a federal fugitive.  Petitioner Charles Wilson,
dressed only in a pair of briefs, ran into the living room to
investigate.  Discovering at least five men in street clothes with guns
in his living room, he angrily demanded that they state their business,
and repeatedly cursed the officers.  The officers quickly subdued him
on the floor.  His wife then entered the living room to investigate,
wearing only a nightgown.  She observed her husband being restrained by
the armed officers.
When their protective sweep was completed, the officers learned that
the man they sought was not in the house, and they departed.  During
the time that the officers were in the home, the Washington Post
photographer took numerous pictures.  The print reporter was also
apparently in the living room observing the confrontation between the
police and Charles Wilson.  At no time, however, were the reporters
involved in the execution of the arrest warrant.  The Washington Post
never published its photographs of the incident.  The Wilsons sued the
law enforcement officials in their personal capacities for money
damages.  They contended that the officers' actions in bringing members
of the media to observe and record the attempted execution of the
arrest warrant violated their Fourth Amendment rights.
The Supreme Court held that a media "ride-along" in a home violates the
Fourth Amendment.  The Court said it violates the Fourth Amendment
rights of homeowners for police to bring members of the media or other
third parties into their homes during the execution of a warrant when
the presence of the third parties in the home was not in aid of the
warrant's execution.  However, the Court held that because the state of
the law was not "clearly established" at the time the entry in this
case took place, the officers are entitled to qualified immunity.
Justice Rehnquist delivered the opinion for the Court, which was
unanimous on the issue of whether a violation of the Fourth Amendment
occurred.  In a concurring opinion, Justice Stevens said that the
petitioners should have been able to recover against the police.
In a separate decision, the Supreme Court has agreed to review the
Drivers Privacy Protection Act of 1994.  At issue in that case is
whether Congress can limit the disclosure of personal information held
by state agencies. That case is Reno v. Condon.
The text of the decision in Wilson v. Layne is available at:
[6] Australia Close to Enacting Internet Censorship Law
The Australian government may be on the verge of enacting one of the
world's most restrictive Internet content laws.  Last week, the
Australian Senate approved a bill that would extend the Broadcasting
Services Act 1992 to the Internet.  The law currently applies to film
and video and limits access to material involving drugs, sex, violence,
or nudity, or containing obscene language.  The law is based upon a
ratings system similar to that used for commercial films in the United
States. But the Australian ratings go further, with restrictive ratings
applied to material that "incites" violence or depicts acts that
"offend against the standards of morality, decency, and propriety
generally accepted by reasonable adults."
The Australian Broadcasting Authority (ABA) administers the law and
monitors covered media for compliance.  Should the pending legislation
be enacted, the ABA would be granted authority to require Internet
access providers to monitor the content carried via their networks and
shut down sites suspected of violating the law.  "The government has
turned Australia into the global village idiot", according to
Electronic Frontiers Australia (EFA) spokesperson Danny Yee. "This Bill
is a direct attack on freedom of speech,"" even though "surveys and
polls show that most Australians don't want more censorship."  EFA has
organized protests against the pending censorship law in Sydney,
Melbourne, Brisbane, Perth and Adelaide.
More information on the Australian campaign against Internet censorship
is available at:
[7] EPIC Bill-Track: New Bills in Congress
H.R.1685. Internet Growth and Development Act of 1999. A bill to
provide for the recognition of electronic signatures for the conduct of
interstate and foreign commerce; to restrict the transmission of
certain electronic mail advertisements; to authorize the Federal Trade
Commission to prescribe rules to protect the privacy of users of
commercial Internet websites; to promote the rapid deployment of
broadband Internet services; and for other purposes. Title III is
entitled "Online Privacy Protection." Sponsored by Rep. Rick Boucher
(introduced 5/05/99).  Referred to the Committee on Commerce, and in
addition to the Committee on the Judiciary.
H.R.1790. Chemical Safety Information and Safe Security Act of 1999. A
bill to provide for public disclosure of accidental release scenario
information in risk management plans, and for other purposes.
Sponsored by Rep Tom Bliley (introduced 5/13/99).  Referred to the
Committee on Commerce, and in addition to the Committees on Government
Reform, and the Judiciary.
S.942. Taxpayer Right-To-Know Act of 1999. A bill to amend the Internal
Revenue Code of 1986 to require the Secretary of the Treasury to
develop an Internet site where a taxpayer may generate a receipt for an
income tax payment which itemizes the portion of the payment which is
allocable to various Government spending categories.  Sponsored by Sen.
Charles E. Schumer, (introduced 5/03/99).  Referred to the Committee on
S.976. Youth Drug and Mental Health Services Act. A bill to amend Title
V of the Public Health Service Act to focus the authority of the
Substance Abuse and Mental Health Services Administration on community-
based services children and adolescents; to enhance flexibility and
accountability; to establish programs for youth treatment; and to
respond to crises, especially those related to children and violence.
Section 404 Part C subpart I establishes a national data infrastructure
"for the purpose of developing and operating . . . data collection,
analysis, and reporting systems." Sponsored by Sen. Bill Frist
(introduced 5/06/99).
S.1043. Internet Regulatory Freedom Act of 1999. A bill to provide
freedom from regulation by the Federal Communications Commission for
the Internet. Sponsored by Sen. John McCain (introduced 5/13/99).
Referred to the Committee on Commerce.
[8] Upcoming Conferences and Events
Encryption Controls Workshop. May 13, 1999. Raleigh, NC. Sponsored by
the U.S. Dep't of Commerce. Contact: (202) 482-6031
INET 99.  San Jose, Calif., June 22-25, 1999.  Sponsored by the
Internet Society.  Contact: http://www.isoc.org/inet99/
Privacy Laws & Business 12th Annual International Conference -- "New
Data Protection Law: Issues, Solutions, Action."" June 28-30th 1999, St
John's College, Cambridge, United Kingdom.  Contact: Privacy Laws &
Business, Tel: + 44 (0) 181 423 1300, Fax: + 44 (0) 181 423 4536,
e-mail: info@privacylaws.co.uk, or  http://www.privacylaws.co.uk
ABA Annual Conference, Section of International Law and Practice.
"Privacy Issues in Electronic Commerce." Aug 9. Atlanta, Georgia.
Contact http://www.abanet.org/annual/99/home.html
The 21st International Conference on Privacy and Personal Data
Protection.  Hong Kong, September 13-14, 1999.  A distinguished group
of over 50 speakers/panelists from overseas and Hong Kong will explore
the theme of  "Privacy of Personal Data, Information Technology &
Global Business in the Next Millennium."" Sponsored by the Office of
the Privacy Commissioner for Personal Data in Hong Kong.  Contact:
"A Privacy Agenda for the 21st Century."" Sept 15. Hong Kong Convention
and Exhibition Centre, Hong Kong PRC. Contact: rotenberg@epic.org.
Information Security Solutions Europe 1999. Oct 4-6. Maritim proArte
Hotel, Berlin, Germany. contact http://www.eema.org/isse/
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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 is sponsored
by the Fund for Constitutional Government, a non-profit organization
established in 1974 to protect civil liberties and constitutional
rights.  EPIC publishes the EPIC Alert, pursues Freedom of Information
Act litigation, and conducts policy research.  For more information,
e-mail info@epic.org, http://www.epic.org or write EPIC, 666
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If you'd like to support the work of the Electronic Privacy Information
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should be made out to "The Fund for Constitutional Government" and sent
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Your contributions will help support Freedom of Information Act and
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expanding wiretapping powers.
Thank you for your support.
  ---------------------- END EPIC Alert 6.08 -----------------------

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