The concept of military necessity is seductively broad, and has a dangerous plasticity. Because they invariably have the visage of overriding importance, there is always a temptation to invoke security "necessities" to justify an encroachment upon civil liberties. For that reason, the military-security argument must be approached with a healthy skepticism.
--Justice William Brennan, Brown v. Glines, 444 US 348 (1980)
- Intelligence Office Describes Privacy Protections for Government Database: The Office of the Director of National Intelligence released an information paper describing the civil liberties and privacy protections incorporated into the National Counterterrorism Center Guidelines. The ODNI is the top intelligence agency in the United States, coordinating the activities of the CIA, the FBI, the DHS, and other federal agencies. An updated version of the Guidelines was approved by Attorney General Holder in March of 2012 and allows the Center to copy databases across the federal government for retention for up to five years. EPIC filed a FOIA lawsuit to uncover, among other things, any data accuracy and security safeguard documentation that covered the updated Guidelines. The Information Paper comes about six months after EPIC filed suit for more details about the program. The Paper details various provisions, including the requirement that a "reasonable belief" that a dataset contains terrorism information is needed to copy a database, the implementation of accuracy and error correction measures, and a prohibition on monitoring U.S. persons purely for engaging in First Amendment protected activities. The ODNI is expected to make its final production of documents to EPIC in the FOIA case on February 12, 2013. For more information, see EPIC: EPIC v. ODNI. (Jan. 28, 2013)
- Public Poll: Americans Continue to Favor Civil Liberties in Post-9/11 Era: The Center for Public Affairs Research, a joint project of the Associated Press and the National Opinion Research Center, has published "Civil Liberties and Security: 10 Years After 9/11." The detailed report analyzed public opinions on national security and civil liberties issues a decade after 9/11. The survey found that Americans are divided on the war on terrorism. Of those surveyed, 86% said that the events following 9/11 have had some impact on their individual rights and freedoms. A majority also said that the protection of civil liberties should take priority over national security, and only 23% favored the government’s warrantless wiretapping program. For more information, see EPIC: The 9/11 Commission Report and EPIC: Public Opinion on Privacy. (Sep. 6, 2011)
- DOJ Issues Guidance on New Surveillance Powers. Within hours of the USA PATRIOT Act being signed into law, the Justice Department issued a field guidance memorandum (PDF) on the new anti-terrorism authorities approved by Congress. The memorandum does not address expanded powers under the Foreign Intelligence Surveillance Act; guidance in that area appears to be classified. Attorney General John Ashcroft announced that he has directed FBI and U.S. Attorney's offices "to begin immediately implementing this sweeping legislation." See EPIC's USA-PATRIOT Act Page. (Oct. 29, 2001)
- Anti-Terrorism Bill Signed Into Law. On October 26, the President signed the USA-PATRIOT Act of 2001 into law. The Senate voted 98-1 to pass the Act, a "compromise" version of the various anti-terrorism bills, on October 25. This final congressional action followed 24 hours after the House voted 357-66 to approve the same version of the bill, based on H.R. 3108 and S. 1510. The final legislation includes a few changes: most notably, a sunset on the electronic surveillance provisions, and an amendment providing judicial oversight of law enforcement's use of the FBI's Carnivore system. However, it retains provisions vastly expanding government investigative authority, especially with respect to the Internet. (Oct. 26, 2001)
- "Compromise" Terrorism Legislation Still Flawed. The Chairman and Ranking Minority Member of the House Judiciary Committee have released a draft "compromise" bill in response to Attorney General Ashcroft's proposed anti-terrorism legislation (see below). The new "PATRIOT Act" (PDF) continues to raise many of the same privacy and civil liberties issues. An analysis of the proposal (PDF), prepared by Judiciary Committee staff, is available. (Oct. 2, 2001)
- EPIC Urges Support for Freedom Statement. EPIC has joined with more than 150 organizations to urge public support for the In Defense of Freedom statement as the Congress considers legislation in the wake of the September 11 tragedy. Sign-up now! (Sept. 30, 2001)
- Congress Set to Consider Far-Reaching Legislation. Congress is expected to act this week on legislation that would substantially expand government surveillance powers, including use of the controversial Carnivore Internet monitoring system. EPIC has prepared a detailed analysis of provisions in the proposed Anti-Terrorism Act of 2001 (PDF). EPIC urges Congress to carefully assess the need for new surveillance powers and to draw any possible changes narrowly to protect privacy and constitutional rights. In editorials, newspapers and magazines across the country have also endorsed that approach. (Sept. 28, 2001)
For further information about the Administration's post-Patriot Act actions and proposals, please visit the following EPIC archives:
- EPIC's USA-PATRIOT Act Page (discussing the history of the Act and the impact of the electronic surveillance provisions)
- EPIC's National ID Card Page (discussing the significant concerns raised by government national id and similar proposals)
- EPIC's Biometrics Page (discussing the significant privacy and civil liberties concerns raised by widespread deployment of biometric technology)
- EPIC's Face Recognition Page (discussing the post-September 11 debate over increased use of facial recognition technology to aid the fight against terrorism)
- EPIC's Critical Infrastructure Page (analyzing the civil liberty implications raised by post-September 11 cyber-security proposals)
- EPIC's FOIA Page (detailing FOIA requests made by EPIC post-September 11)
- EPIC's Reports (linking to the Watching the Watchers reports)
More than 150 organizations, 300 law professors, and 40 computer scientists joined together to protect civil liberties by signing the In Defense of Freedom statement.
- In Defense of Freedom Web Site
- White House fact sheet on the counter-terrorism measures signed into law by President Clinton on October 9, 1996.
- The House of Representatives enacted HR 3593, the Aviation Security and Antiterrorism Act of 1996 on August 2. Provisions on wiretapping were removed after protests by civil liberties groups. The Senate is planning to take up the bill this week. Rep. Henry Hyde also introduced HR 3960, which contains expanded wiretap powers, which the Senate may attempt to include in their version of the bill.
- The G-7 Ministerial Conference on Terrorism issued a resolution in Paris on July 30 calling for governmental cooperation on encryption policy and terrorist use of "electronic or wire communications systems and networks."
- Text of the July 29, 1996 White House Fact Sheet on terrorism calling for new laws expanding warrantless roving and wiretaps and access to consumer information, and restricting cryptography.
- Coalition letter against counterterrorism proposal signed by ACLU, NRA, EPIC, NACDL and other groups.
- National Association of Criminal Defense Lawyers press release on coalition letter.
- Join the Global Internet Liberty Coalition to oppose international efforts to restrict free speech and privacy online.
- The Senate Defense Appropriations bill with a provision introduced by Senator Diane Feinstein to ban bomb makering material off the Internet. Congressional testimony of EPIC Advisory Board member Frank Tuerkheimer before the U.S. Senate on banning bomb making instructions on the Internet.
- Final text of Public-Law 104-132 counter-terrorism bill enacted by the Congress in May 1996. Most wiretap and privacy invasive provisions were removed.
- PL 104-93, Intelligence Authorization Act for Fiscal Year 1996. Included provisions that allowed easier access to credit reports.
- Text of the H.R. 2703/S. 735, the Effective Death Penalty and Public Safety Act of 1996, approved by the House of Representatives, March 14, 1996 .
- Coalition letter opposing HR 2703 and other terrorism bills, December 6, 1995.
- Letter from 20 law professors opposing terrorism bill.
- Statement of Gun Owners of America opposing bills.
- Statement of the National Association of Criminal Defense Lawyers opposing bills.
- ACLU Statement opposing HR 1710, December 6, 1995.
- Text of the Republican terrorism bill, S. 735, the Comprehensive Terrorism Prevention Act of 1995, passed by the Senate, June 1995.
- Draft of the Clinton Administration's Terrorism Inititiative from May 1995.
- EPIC Letter to Senator Specter on revising the Attorney General's Guidelines on Domestic Security Investigations.
- EPIC Press Release on letter to Senator Specter.
- EPIC Wiretap Page for information on fighting the funding for the Digital Telephony Bill, a key element of the counterterrorism proposals.
- S. 761, The Omnibus Counterterrorism Act of 1995 - the revised Democratic counterterrorism bill.
- Congressional Record Overview, of S. 761.
- Text of the origional Democratic counterterrorism proposal, S. 390, Omnibus Counterterrorism Act of 1995.
- HR 68 The FBI Counterintelligence Act of 1995.
- Analysis of the Constitutionality of the prohibition on contributions and immigration court provisions of the Omnibus Counterterrorism Act of 1995 (S. 390) by Prof. David Cole in HTML and text.
- ACLU Statement on Clinton Administration's counterterrorism proposals.
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by Ryan Calo, A. Michael Froomkin,