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EPIC Alert 6.08 [1999] EPICAlert 8

Volume 6.08 June 1, 1999

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 year.

The text of EPIC's testimony on Internet privacy is available at:

http://www.epic.org/privacy/internet/EPIC_testimony_599.html

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.

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:

http://www.ifea.net/kennard_5_99.html

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:

http://www.gn.apc.org/duncan/stoa_cover.htm

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:

http://supct.law.cornell.edu/supct/html/98-83.ZS.html

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:

http://www.efa.org.au/Campaigns/stop.html

*House*

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.

*Senate*

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 Finance.

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.

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: <icc@asiaonline.net>

"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/

The EPIC Alert is a free biweekly publication of the Electronic Privacy Information Center. A Web-based form is available for subscribing or unsubscribing at:

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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 Pennsylvania Ave., SE, Suite 301, Washington, DC 20003. +1 202 544 9240 (tel), +1 202 547 5482 (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 "The Fund for Constitutional Government" and sent to EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington, DC 20003.

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.

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