EPIC Alert 16.19

EPIC Alert 16.19 (08/28/09)

EPIC logo

                              E P I C   A l e r t
Volume 16.19                                            October 8, 2009

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


			"Defend Privacy. Support EPIC."

Table of Contents
[1] Department of Justice Limits Use of State Secrets Privilege
[2] EPIC to FTC: "Parental Control" Software Firms Gather Data on Kids
[3] Data Breach Bill Advances in House
[4] ICANN Issues Affirmation of Commitment, Seeks Comments on WHOIS
[5] Future of Registered Traveler, Clear Data Unclear
[6] News in Brief
[7] EPIC Bookstore: "Three Felonies a Day"  
[8] Upcoming Conferences and Events
    - Join EPIC on Facebook http://facebook.com/epicprivacy
  	- Privacy Policy
  	- About EPIC
  	- Donate to EPIC http://epic.org/donate
  	- Subscription Information

[1] Department of Justice Limits Use of State Secrets Privilege

Department of Justice Limits Use of State Secrets Privilege On September
23, the Department of Justice (DOJ) announced a new policy that limits
the government's use of the state secrets privilege. The state secrets
privilege, first recognized by the Supreme Court in United States v.
Reynolds, is a rule of evidence intended to prevent genuine matters of
national security from being disclosed in open court. The government can
invoke the privilege by submitting an affidavit to the court asserting
that the proceedings might reveal information that could endanger
national security. Once the privilege is invoked, the protected evidence
is eliminated from the litigation.

Although the privilege originally was intended to protect
national security, it has recently been misused by both the Bush and
Obama administrations in order to derail litigation completely. For
instance, in 2007 EPIC filed a "friend-of-the-court" brief in Hepting
v. AT&T, in which the plaintiffs accused AT&T of violating the law
and the privacy of their customers by working with the National
Security Agency in its warrantless domestic spying program. However,
the government argued that the case should be dismissed because it
would reveal "state secrets."

Under the new policy, the privilege will be invoked only "to the
extent necessary to protect against the risk of significant harm to
national security." The privilege will explicitly not be invoked in
order to conceal violations of the law, embarrassment to the
government, to restrain competition, or to delay release of
unprotected information. The policy also implements procedural
safeguards. If a government agency or department seeks to invoke the
privilege, an Assistant Attorney General must approve the request,
and then a State Secrets Review Committee must give a recommendation
to the Attorney General, who must approve each determination.
Finally, the DOJ will provide periodic reports to Congress explaining
the basis for any invocations.

The State Secret Protection Act of 2009, legislation with a
similar purpose, is now pending in Congress. The legislation may
still be necessary despite the DOJ policy, as the policy will not
necessarily be binding on future administrations. The proposed act
would allow invocation of the privilege only if disclosure was
"reasonably likely to cause significant harm to the national defense
or the diplomatic relations of the United States." The legislation
also requires a court to determine whether the government may invoke
the privilege, which is not explicitly required by the DOJ policy.

DOJ Press Release:

DOJ Policy Memo:

United States v. Reynolds:

State Secret Protection Act of 2009:

EPIC: Hepting v. United States:

EPIC: Open Government:

[2] EPIC to FTC: "Parental Control" Software Firms Gather Data on Kids

EPIC filed a complaint with the Federal Trade Commission (FTC) against
Echometrix, the developers of parental control software that monitors
children's online activity. Echometrix also develops software called
Pulse, which collects and sells information about how children use
the internet and what children are saying on the internet to third
parties for market-intelligence research purposes. According to
Echometrix, information is collected regarding children's online
activity from, among other sources, instant message conversations,
social networking sites, and chat rooms.

The EPIC complaint alleges that Echometrix engages in unfair and
deceptive trade practices by representing that the parental control
software protects children online, without informing parents that it
simultaneously collects and discloses information about children's
online activity. EPIC argues that the privacy policy for the parental
control software does not clearly disclose how children's information
is being collected and used. Therefore, parents are unaware that
information about their children's online activity is sold to third

The EPIC complaint further alleges that Echometrix's practices
violate the Children's Online Privacy Protection Act by
collecting and disclosing information from children under the age of
13. The Act requires that website operators have clear privacy
policies indicating how children's information is collected and
disclosed. Further, website operators must obtain verifiable
parental consent before collecting personal information from
children. The complaint alleges that Echometrix's privacy policy
does not clearly disclose how children's information is used, and
that Echometrix is collecting personal information (e-mail addresses)
from children in violation of the Act.

The EPIC complaint asks the FTC to investigate and stop these practices,
seek compensation for victims, and ensure that Echometrix's collection
and disclosure practices comply with the Children's Online Privacy
Protection Act. Further, EPIC urges the Commission to require that
Echometrix destroy all current records stored that involve children's
personal information.

EPIC's Complaint to the Federal Trade Commission:

EPIC: Children's Online Privacy Protection Act:

Echometrix website:

Federal Trade Commission: Consumer Privacy:

[3] Data Breach Bill Advances in House

On September 30, the House Energy and Commerce Committee considered a
proposed federal law that would establish national standards for data
breach notifications. The Data Accountability and Trust Act also
regulates information brokers and requires companies to adopt security
policies. The bill was introduced in April by Representative Bobby Rush,
D-IL, chair of the subcommittee on Commerce, Trade, and Consumer
Protection. It passed the subcommittee in June and was referred to the
full committee, which began considering it this week.

If passed, the Data Accountability and Trust Act would require the
Federal Trade Commission to promulgate regulations requiring
businesses that own or possess electronic data containing personal
information to establish security policies and procedures. It would also
authorize the FTC to require a standard method for destroying obsolete
non-electronic data. The bill would impose several new regulations on
information brokers to ensure that they establish procedures to verify
the accuracy of the portfolios they maintain on individuals and allow
those individuals to review and correct their files.

Finally, the bill's new data breach notification procedures would expand
the number of circumstances in which companies must notify customers of
breaches. In particular, it would require notification for breaches by
contractors who maintain or process electronic data containing personal
information, breaches involving telecommunications and computer
services, and breaches of health information.

In May, EPIC testified before Congress on the bill, highlighting
the importance of regulating data brokers, but warning of the dangers
posed by federal laws that preempt stronger state privacy safeguards.
Also in May, President Obama stated that "executive departments and
agencies should be mindful that in our Federal system, the citizens of
the several States have distinctive circumstances and values, and that
in many instances it is appropriate for them to apply to themselves
rules and principles that reflect these circumstances and values." The
Senate is considering a similar bill, the Personal Data Privacy and
Security Act, which would protect additional categories of consumer

Data Accountability and Trust Act (H.R. 2221):

Personal Data Privacy and Security Act of 2009 (S. 1490):

EPIC: Testimony before House Subcommittee:

EPIC: Identity Theft:

[4] ICANN Issues Affirmation of Commitment, Seeks Comments on WHOIS

The Internet Corporation for Assigned Names and Numbers (ICANN) has
recently signed an affirmation of commitment with the US Department of
Commerce. ICANN is the corporation that coordinates the assignment
of domain names to Internet Protocol addresses through a longstanding
agreement with the U.S. government.

This document affirms key commitments by Department and ICANN, including
agreements to ensure that decisions made related to the global technical
coordination of the Domain Name System, are made in the public interest
and are accountable and transparent. In addition, the document states
that international participation in the Domain Name System technical
coordination will be facilitated.

ICANN also commits to enforcing the existing WHOIS policy, subject to
applicable laws. The WHOIS database was originally intended to maintain
the stability of the internet by allowing network administrators to find
and fix problems with minimal hassle. But now it exposes domain name
registrants' personally identifiable information to spammers, stalkers,
criminal investigators, and copyright enforcers.

Current WHOIS policies require accurate WHOIS information without having
established appropriate privacy and data protection safeguards. The
enforcement of the accuracy of WHOIS data has serious implications on
privacy. Some domain name registrants have legitimate reasons for
providing inaccurate WHOIS information, especially when there are no
privacy safeguards in place. To limit the amount of personal information
to the public through WHOIS queries, domain name registrants have been
using a privacy or proxy registration service when registering their
domain name.

ICANN has released a preliminary report showing that about 15 to 25
percent of domain names have been registered in a manner that limits the
amount of personal information available to the public through WHOIS
queries.  A call for public comments of the preliminary WHOIS report is
open until November 6, 2009.

Affirmation Of Commitments By The United States Department Of Commerce
And The Internet Corporation For Assigned Names And Numbers:

ICANN's Study on the Prevalence of Domain Names Registered using a
Privacy or Proxy Service:

EPIC: Whois:

Privacy & Human Rights: An International Survey of Privacy Laws and
Developments" (EPIC 2007):

The Public Voice: WHOIS Policy Development:

[5] Future of Registered Traveler, Clear Data Unclear

A subcommittee of the House Committee on Homeland Security held a
hearing on September 30 to consider the future of the Registered
Traveler Program, also known as Clear. The Subcommittee on
Transportation Security and Infrastructure Protection held the hearing
to consider what will happen to the sensitive passenger data held by the
company now that it has declared bankruptcy.

The Clear program was the brand name for the Transportation Security
Administration's (TSA) Registered Traveler Program, also known as Secure
Flight. The program was a passenger prescreening program in which
passengers could submit to extensive background checks to go through
special security lines in airports. The screening process required
substantial data collection, including biometric identifiers, from
passengers who participated. It was introduced in 2004, then suspended
in 2006 amid considerable privacy and security concerns.

The Registered Traveler Program underwent a new two-year pilot program
between 2006 and 2008 and was due for relaunch next year. But Verified
Identity Pass, the company TSA contracted to provide the service, closed
operations and declared bankruptcy in June, 2009. Now an investment
group has signed a letter of intent to purchase the bankrupt company's
assets and restart the program, raising questions about the security of
the data collected from passengers.  Currently, TSA is directing all
questions regarding the status of the data to the companies themselves.

Subcommittee Hearing:

TSA: Registered Traveler Program:

EPIC: Secure Flight:

EPIC: Spotlight On Surveillance - Registered Traveler Card:

[6] News in Brief

EPIC Celebrates International Right to Know Day

On Monday, September 28, 2009, EPIC celebrated International Right to
Know Day, which was established to raise awareness of every individual's
right of access to government-held information. EPIC spoke at American
University's Third Annual International Right-To-Know Day Celebration
concerning opportunities to restore US leadership in government
transparency. Other speakers discussed the international status of
freedom of information laws, the United States' role in fostering
freedom of information values, and strategies for implementation of the
Obama Administration's stated goal of transparent government.

American University's Washington College of Law, International Right to
Know Day:

EPIC: Open Government:

EPIC: FOIA Litigation Manual:

White House Announcement Regarding Transparency:

Americans Object to Online Tracking

According to a study conducted by researchers from the University of
Pennsylvania and University of California - Berkeley, 66% of Americans
object to online tracking. The study, which surveyed 1,000 adult
Internet users, is one of the first independent studies to address the
issue of online targeting. The aversion to targeted advertising did not
vary among age groups, even the young adult demographic, which Facebook
and other companies have argued do not have a problem with disclosing
information for targeted advertising purposes. The study also revealed
that 92% of respondents supported the idea of strengthening privacy
laws, more specifically, passing legislation requiring websites to
delete information upon request of a user. As Jeff Chester of the Center
for Digital Democracy noted, "this research gives the Federal Trade
Commission and Congress a political green light to go ahead and enact
effective, but reasonable, rules and policies."

Study: Americans Reject Tailored Advertisements:

N.Y. Times: Two-Thirds of Americans Object to Online Tracking:

EPIC: Deep Packet Inspections and Privacy:

FTC Staff Report: Self-Regulatory Principles for Online Behavioral

Google Urged to Fix Book Privacy Policy

With the settlement in the Google Books project still pending, Google
recently released a Google Books privacy policy. In response, EPIC
conducted an in-depth analysis of the privacy policy and found it to be
lacking in satisfactory privacy safeguards. EPIC cited several
provisions in the policy that allow for the collection, storage, and
sharing of massive amounts of personally identifiable user information.
EPIC advocated for the inclusion of privacy provisions in the Google
Books Settlement and urged Google to fix the privacy policy and improve
privacy protection.

Google Books Privacy Policy:

EPIC: Google Books: Policy Without Privacy:

EPIC: Google Books Settlement:

Patriot Act Reform Moves Forward in Senate

The process of renewing and reforming certain provisions of the USA
PATRIOT Act and the Foreign Intelligence Surveillance Act has been
moving very quickly in the Senate. Three provisions are due to expire on
December 31, 2009. The first provision is the Business Records
provision, which grants the Federal Bureau of Investigation the
authority to request an order "requiring the production of any tangible
things (including books, records, papers, documents, and other items)"
relevant to an investigation of international terrorism or clandestine
intelligence activities. The second is the Roving Wiretap provision,
which allows the interception of any communications made to or by an
intelligence target without specifying the particular telephone line,
computer or other facility to be monitored. And the third is the "Lone
Wolf" provision, which allows investigation into terrorists not directly
connected to a foreign nation or organization. The Department of Justice
has asked that the provisions be renewed unchanged, but has expressed
willingness to consider additional privacy protections as long as they
do not reduce the provisions' efficacy. hree bills were proposed to
address these expiring provisions, each with various other reforms. Last
week, the Senate Judiciary Committee began the markup process on S.1692,
USA PATRIOT Act Sunset Extension Act of 2009 and finished the process on
Thursday, October 8th. The Committee made a number of amendments to the
bill, eliminating many proposed reforms but preserving required
minimization procedures for National Security Letters and reducing the
delay on notification for Sneak & Peek searches from thirty days to
seven days. The bill passed committee by a vote of 11-8 and will next be
considered for further amendment by the full Senate.

Senate Judiciary Committee, Markup - Oct. 1:

Senate Judiciary Committee, Markup - Oct. 8:

EPIC: PATRIOT Act Extension?


EPIC Participates in Internet Governance Panel

On Friday, October 2, 2009, EPIC participated in a panel at the Internet
Governance Forum USA Conference.  The panel, which featured experts from
industry, advocacy organizations, and the United States government,
focused on security and privacy issues related to Web 2.0.  Panel
experts debated whether self regulation or federal regulation would be
more effective in protecting customers and fostering innovation on the
internet.  EPIC explained the privacy and security problems with self
regulation, citing numerous examples of unfair and ineffective privacy
policies, data breaches, and unauthorized sharing of personal user
information.  In light of these problems, EPIC advocated for stronger,
clearer federal regulatory standards regarding online behavioral
targeting and cloud computing.

Internet Governance Forum:

EPIC: Cloud Computing:

EPIC: Search Engine Privacy:

EPIC: Google/DoubleClick Merger and Behavioral Targeting:

[7] EPIC Bookstore: "Three Felonies a Day"
"Three Felonies a Day: How the Feds Target the Innocent" By Harvey A.
To purchase: http://www.epic.org/redirect/100809_Silverglate.html

"The average professional in this country wakes up in the morning, goes
to work, comes home, eats dinner, and then goes to sleep, unaware that
he or she has likely committed several federal crimes that day. Why? The
answer lies in the very nature of modern federal criminal laws, which
have exploded in number but also become impossibly broad and vague."

In Three Felonies a Day: How the Feds Target the Innocent, criminal
defense attorney Harvey Silverglate illustrates this point as he
chronicles high-profile cases, some in which he participated in as a
lawyer, arguing that overly ambitious prosecutors coupled with vague
criminal statutes are responsible for the continuing rise of federal
criminal prosecutions in America. Silverglate makes clear that any
citizen, whether politician, doctor, or average taxpayer, is subject to
federal prosecution: "When the feds appear on the scene, claiming to
represent the public by going after some citizen who had no reasonable
way of knowing that his or her conduct could be deemed a felony, do not
ask for whom the bell tolls. It tolls for all."

In a chapter entitled "Giving Doctors Orders," Silverglate describes the
"win at virtually any cost" mentality of the government through the case
of Dr. Hurwitz. Dr. Hurwitz was charged with violating the Controlled
Substances Act by allegedly overprescribing the addicting drug
OxyContin. To establish that Dr. Hurwitz complied with accepted medical
practices, the defense planned to use a frequently asked questions
pamphlet posted on the Drug Enforcement Administration's (DEA) website,
which allowed physicians broad discretion in their prescribing
practices. However, the pamphlet was withdrawn by the DEA only two
months after its adoption in a successful attempt to "cement[] the case
against Dr. Hurwitz." Although a jury did convict Dr. Hurwitz, the Court
of Appeals for the Fourth Circuit reversed this decision for the
district court's failure to instruct the jury to acquit Dr. Hurwitz if
they found his actions were in "good faith" and within "accepted medical

In his book, Silverglate takes particular issue with anti-terrorist, or
national security, statutes such as the Espionage Act and USA Patriot
Act, a discussion which spans two chapters and illustrates the acts'
"infinite malleability" as a catalyst for the prosecution of students,
journalists, artists, and professors. Silverglate aptly notes that the
increasing popularity of technology and the internet in the post-9/11
area has exacerbated this problem of wrongful prosecution of innocent
actions. He describes the first indictment under the USA Patriot Act,
where University of Idaho doctoral candidate Sami Omar al-Hussayen was
charged with providing "material support" for terrorist activities.  The
material support al-Hussayen allegedly provided came from his creation
of several websites for a Muslim charity, which prosecutors alleged
housed links to other websites containing violent messages and
soliciting donations to terrorist organizations. Because al-Hussayen
was the webmaster and because users could eventually access these
websites through links on his sites, al-Hussayen allegedly provided
"expert advice or assistance" to terrorists. Although the jury
acquitted al-Hussayen on the serious charges, al-Hussayen was eventually
deported to Saudi Arabia. The case still leaves the meaning of "expert
advice or assistance" in the USA Patriot Act unclear, although the term
"assistance" now includes merely maintaining or linking to websites.
The issue of the Act's ambiguity is an increasingly hot topic today, as
the possibility of revising the Act is currently being discussed in

The remaining chapters in the book track this theme of overly zealous
prosecutors exploiting unclear and overbroad statutes. In his
conclusion, Silverglate calls upon citizens to lobby for legislative and
regulatory change, write op-ed columns, and file amicus ("friend of the
court") briefs to support the legal principles that protect our
interests and to protect our constitutional right to "be free from
prosecution under vague statutes." Silverglate shows us that we all
have a stake in this issue, as no one is safe from prosecution of our
seemingly innocuous actions. As a result, it is up to us as citizens to
bring attention to the issue of wrongful prosecution in order to effect

--Kim Nguyen

EPIC Publications:

"Litigation Under the Federal Open Government Laws 2008," edited by
Harry A. Hammitt, Marc Rotenberg, John A. Verdi, and Mark S. Zaid
(EPIC 2008). Price: $60.

Litigation Under the Federal Open Government Laws is the most
comprehensive, authoritative discussion of the federal open access
laws. This updated version includes new material regarding the
substantial FOIA amendments enacted on December 31, 2007. Many of the
recent amendments are effective as of December 31, 2008. The standard
reference work includes in-depth analysis of litigation under Freedom
of Information Act, Privacy Act, Federal Advisory Committee Act,
Government in the Sunshine Act. The fully updated 2008 volume is the
24th edition of the manual that lawyers, journalists and researchers
have relied on for more than 25 years. 


"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, spyware, 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 2006: An International Survey of Privacy Laws
and Developments" (EPIC 2007). Price: $75.

This annual report by EPIC and Privacy International provides an
overview of key privacy topics and reviews the state of privacy in over
75 countries around the world. The report outlines legal protections,
new challenges, and important issues and events relating to privacy.
Privacy & Human Rights 2006 is the most comprehensive report on privacy
and data protection ever published.


"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 CAN-SPAM Act.


"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


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

Engaging Data Forum, MIT, October 12-13, 2009. 
For more information:

10th German Big Brother Awards, Bielefeld, Germany, October 16, 2009.
For more information: http://www.bigbrotherawards.de

eChallenges 2009, Istanbul, Turkey, October 21-23, 2009. 
For more information: 

Big Brother Awards Switzerland, Zurich, Switzerland, October 24, 2009.
For more information:

3rd European Privacy Open Space, Vienna, Austria, October 24-25, 2009.
For more information: 

Austrian Big Brother Awards Vienna, Austria, October 25, 2009. 
For more information:

Free Culture Forum: Organization and Action, Barcelona, Spain, October
29 - November 1, 2009. 
For more information: 

Employee surveillance in Europe: Balancing privacy rights and management
control, Madrid, Spain, 3 November, 2009. 
For more information:

Global Privacy Standards in a Global World, The Public Voice, Madrid,
Spain, November 3, 2009. 
For more information:

31st International Conference of Data Protection and Privacy
Commissioners, Madrid, Spain, November 4-6, 2009. 
For more information:

Free Society Conference and Nordic Summit, Gothenburg, Sweden, November
13-15, 2009. 
For more information: 

UN Internet Governance Forum, Sharm El Sheikh, Egypt, November 15-18,
For more information: 

Privacy 2010, Stanford, March 23 - 25, 2010. 
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
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