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EPIC Alert 7.13 [2000] EPICAlert 13

EPIC ALERT

Volume 7.13 July 12, 2000

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

http://www.epic.org/alert/EPIC_Alert_7.13.html

Table of Contents

[1] FBI's Carnivore Gobbles Lots of E-Mail
[2] FTC Attempts to Block Sale of Toysmart Customer Lists
[3] New Internet Democracy Project To Focus on ICANN
[4] European Parliament Adopts Resolution on Safe Harbor
[5] Supreme Court to Review Constitutionality of Wiretap Laws
[6] Survey Conducted on the State of First Amendment
[7] EPIC Bill-Track: New Bills in Congress
[8] Upcoming Conferences and Events

[1] FBI's Carnivore Gobbles Lots of E-Mail

Recent press reports confirm the roll-out of a new Federal Bureau ofInvestigation (FBI) system called Carnivore, which is designed tocovertly search electronic mail messages to and from targeted criminalsuspects, but could also compromise the privacy of millions ofInternet users. The system, which is installed directly into anInternet service provider's network, reportedly can scan millions ofmessages each second. The FBI recently demonstrated the Carnivoresystem to telecommunications industry representatives, many of whomare disturbed by the prospect of having the invasive technologyinstalled on their internal systems and administered by federalagents.

Public details concerning Carnivore's capabilities are sketchy. Theexistence of the system was first revealed by attorney RobertCorn-Revere in Congressional testimony in April. He described a casein which government agents sought to install Carnivore on the systemof an ISP he represented. Published reports suggest that the systemcould give the government the ability to intercept the communicationsof all of an ISP's customers, not just those of a targeted criminalsuspect. Even when programmed to obtain only the communications of asuspect, Carnivore would enable government agents to intercept theactual content of e-mail messages without first making a showing ofprobable cause as required by the Fourth Amendment and federal wiretapstatutes. Armed just with a pen register or trap and trace order,
which authorizes only the collection of information identifying thesenders and recipients of e-mail messages, Carnivore would enableagents to receive the entire communication.

The deployment of Carnivore is just the latest indication that legalprotections have failed to keep pace with advancing surveillancetechnology. The existing wiretap statutes, which were drafted withtelephones in mind and amended in 1986 to apply to electroniccommunications, do not adequately address many of the realities of theInternet. For that reason, it is likely that Congress will review theuse of Carnivore and consider the need for updating the relevantfederal laws. House Majority Leader Dick Armey today called onAttorney General Janet Reno and FBI Director Louis Freeh to addressthe privacy concerns raised by the Carnivore system.

There is also a need for public disclosure of the capabilities ofCarnivore and other intrusive new technologies being used by lawenforcement investigators. EPIC has submitted a Freedom ofInformation Act request to the FBI seeking the release of informationon Carnivore and related technologies.

Robert Corn-Revere's testimony on Carnivore is available at:

http://www.house.gov/judiciary/corn0406.htm

[2] FTC Attempts to Block Sale of Toysmart Customer Lists

On July 10, the Federal Trade Commission (FTC) unanimously decided tofile a complaint against Toysmart.com, a failed online retailer tryingto sell its customer lists.

Earlier this year, Toysmart, the 24th most popular Web site lastDecember, ran out of money and began selling its assets. In earlyJune, the company advertised in the Wall Street Journal that it wasselling its property -- including its customer lists. Toysmart'sprivacy policy, licensed by TRUSTe, stated that "Personal information,
voluntarily submitted by visitors to our site, such as name, address,
billing information and shopping preferences, is never shared with athird party." TRUSTe learned of Toysmart's attempt to sell itscustomer lists and asked the FTC to investigate.

The Federal Trade Commission's complaint argues that Toysmart hasviolated the FTC Act by deceptively claiming that its customers'
personal data would never be disclosed to a third party and bysubsequently attempting to sell those databases. The lists may alsocontain information about children's names and birthdates, in additionto the names and mailing addresses of customers.

The Federal Trade Commission's complaint against Toysmart is availableat:

http://www.ftc.gov/os/2000/07/toysmartcmp.htm

[3] New Internet Democracy Project To Focus on ICANN

On July 6, EPIC, the ACLU and Computer Professionals for SocialResponsibility (CPSR) launched the Internet Democracy Project.

One of the Project's first events will be a Forum on Civil Society andICANN that will take place on July 13, prior to the July 13-17 ICANNmeetings in Yokohama, Japan. The Forum will present the perspectiveof civil society and present issues concerning the upcoming ICANNAt-Large elections. A statement of guiding values for ICANN, alreadysigned by representatives of organizations around the world, will becirculated and discussed. The Forum will be co-hosted by theNon-Commercial Domain Name Holders Constituency (NCDNHC) of the ICANNDomain Name Supporting Organization. The Internet Democracy Projectis also encouraging Internet users to register for the first ICANNAt-Large elections in October. Registration for the elections willclose at the end of July.

While encouragement of public involvement in ICANN will be the firstgoal for the Internet Democracy Project, the Project will focus onother entities and issues that may affect the future development ofthe Internet.

The homepage of the Internet Democracy Project, with information aboutthe Yokohama Forum on Civil Society and ICANN, is available at:

http://www.internetdemocracyproject.org/

Information about the Internet Corporation for Assigned Names andNumbers and registration for the upcoming At-Large elections isavailable at:

http://www.icann.org/

[4] European Parliament Adopts Resolution on Safe Harbor

On July 5, the European Parliament adopted a resolution criticizingthe preliminary decision of the European Commission to accept thelatest Safe Harbor proposal. The report, drafted by the EuropeanParliament Committee on Citizens' Freedoms and Rights, Justice andHome Affairs, argues that the agreement needs to be re-negotiated toprovide better protection for the personal information of Europeancitizens when processed by U.S. companies.

The resolution stresses in particular the need for an individual rightof appeal to an independent public body, a right to compensation forprivacy infringements, clear guidelines for redress, and a review ofthe system within six months of its implementation. It also notesthat Safe Harbor will only protect personal data from EU citizens,
will only apply to companies overseen by the Federal Trade Commissionand Department of Transportation (excluding the financial andtelecommunications sectors) and carves out exceptions for publicrecords information protected by EU law.

Under EU law, the European Commission is not bound by the decision ofthe European Parliament. However, it may be subject to sanctions bythe Parliament if it fails to re-negotiate the agreement in accordancewith the resolution.

The European Parliament resolution is available at:

http://www.epic.org/privacy/intl/EP_SH_resolution_0700.html
EPIC's Testimony before the European Parliament on Privacy and DataProtection (February 2000):

http://www.epic.org/privacy/intl/EP_testimony_0200.html

[5] Supreme Court to Review Constitutionality of Wiretap Laws

On June 26, the Supreme Court decided to review a federal appellatedecision which held that portions of the federal wiretap law areunconstitutional. In Bartnicki v. Vopper, the U.S. Third CircuitCourt of Appeals concluded that an individual can lawfully distributeinformation that he or she knew, or had reason to know, was obtainedthrough the illegal interception of a telephone call. The Courtreasoned that provisions of the wiretap law that prohibit thedisclosure of illegally obtained information violate the FirstAmendment and have a chilling effect on free speech.

In an almost identical case, the D.C. Circuit Court of Appeals reachedthe opposite conclusion. In Boehner v. McDermott, the D.C. Circuitheld that punishing the disclosure of an illegally interceptedconversation does not conflict with the Constitution. In aprovocative analysis, the court noted the importance of preserving theprivacy of cellular communications by finding that the wiretap laws donot restrict, but rather promote, free speech by removing the fear ofunlawful eavesdropping.

In light of these conflicting opinions, the Supreme Court decided toreview the Third Circuit's decision in Bartnicki v. Vopper. Theoutcome of this case is likely to have a significant impact on theboundaries of free speech and the development of privacy rights in thedigital age.

In other litigation activity, EPIC recently filed an amicus brief withthe Second Circuit in a telephone privacy case (Conboy v. AT&T),
arguing that the lower court erred in concluding that consumers didnot suffer any compensable damages when their unlisted phone number,
billing address and billing information were disclosed without theirconsent.

Background information about Bartnicki v. Vopper is available at:

http://www.epic.org/privacy/litigation/bartnicki_vopper/

EPIC's amicus brief in Conboy v. AT&T is available at:

http://www.epic.org/privacy/consumer/conboy_brief.html

[6] Survey Conducted on the State of First Amendment

According to the 2000 State of the First Amendment survey, manyAmericans, while theoretically in support of the First Amendment andits protections, are willing to temper some of those fundamentalrights when confronted with offensive or controversial speech.

In the survey of 1015 adults, sixty-three percent of the respondentswere willing to place restrictions on racially offensive speech inpublic and fifty-three would support similar restrictions onreligiously offensive speech. However, only thirty-six percent wouldsupport passing a law that actually forbade such speech.

Opinions about freedom of the press were also surveyed, with onlysixty-seven percent supporting the right of the press to report orpublish what they thought was appropriate. In addition, forty percentof respondents replied that they believed the press had too muchfreedom.

Respondents' views on Internet speech were mixed. While seventy-fourpercent theoretically supported treating online and offline speech thesame, fifty-eight percent would agree to restricting sexually explicitmaterials on the Internet, and forty-two percent would supportrestricting racially offensive speech, even though such speech isprotected in books and magazines. Additionally, while fifty-threepercent of people surveyed would support blocking access to offensiveInternet sites on public computers accessible to children, thirty-fourpercent of people surveyed would also be in favor of blocking alllibrary access to offensive sites, regardless of a user's age.

State of the First Amendment 2000 is available from the Freedom Forum:

http://www.freedomforum.org/newsstand/reports/sofa4/printsofa4.asp

[7] EPIC Bill-Track: New Bills in Congress

*House*

H.R.3770. Secure Online Communication Enforcement Act of 2000. Seeksto establish opt-in for all personal information collected online.
Sponsor: Rep Jackson, Jesse L., Jr. (D-IL). Referred to theSubcommittee on Crime.

H.R.4049. Privacy Commission Act. Would establish the Commission forthe Comprehensive Study of Privacy Protection. Sponsor: RepHutchinson, Asa (R-AR). Referred to Committee on Government Reform.

H.R.4059. Online Privacy and Disclosure Act. Creates voluntary systemby which companies would agree to abide by privacy principles anddisplay a seal overseen by the Federal Trade Commission. Sponsor: RepCampbell, Tom (R-CA). Referred to the Subcommittee onTelecommunications, Trade, and Consumer Protection.

H.R.4469. Child Support Distribution Act of 2000. Allows largelyunregulated private child support enforcement agencies to have accessto State Directory of New Hires database and other informationnormally available only to public agencies. Sponsor: Rep Johnson,
Nancy L. (R-CT). Referred to House Education and the Workforce.

H.R.4585. Medical Financial Privacy Protection Act. Amends theGramm-Leach-Bliley Act (S.900, Financial Services Modernization Act of1999) to include provisions governing the use of health information byfinancial institutions. Sponsor: Rep Leach, James A. (R-IA). Referredto House Commerce Committee.

H.R.4611. Social Security Number Protection Act of 2000. Seeks tolimit the sale and purchase of the social security number (also seeS.2699). Sponsor: Rep Markey, Edward J. (D-MA). Referred to House Waysand Means.

*Senate*

S.2063. Secure Online Communication Enforcement Act of 2000. Seeks toestablish opt-in for all personal information collected online.
Sponsor: Sen Torricelli, Robert (D-NJ). Referred to the Committee onthe Judiciary.

S.2606. Consumer Privacy Protection Act. Broad privacy bill that wouldestablish legal standards for privacy on the Internet and wouldincrease protections for book and music purchase records. Sponsor: SenHollings, Ernest (D-SC). Referred to the Committee on Commerce,
Science, and Transportation.

S.2699. Social Security Number Protection Act of 2000. Seeks to limitthe sale and purchase of the social security number (also seeH.R.4611). Sponsor: Sen Feinstein, Dianne (D-CA). Read twice andreferred to the Committee on Finance.

EPIC Bill Track: Tracking Privacy, Speech, and Cyber-Liberties Billsin the 106th Congress, is available at:

http://www.epic.org/privacy/bill_track.html

[8] Upcoming Conferences and Events

Yokohama Forum on Civil Society and ICANN Elections. InternetDemocracy Project. July 13, 2000. Yokohama, Japan. For moreinformation: http://www.internetdemocracyproject.org/

Internet Corporation for Assigned Names and Numbers (ICANN) Meetingsin Yokohama. July 13-17, 2000. Yokohama, Japan. For more information:
http://www.icann.org/yokohama/

State of the First Amendment. First Amendment Center. July 13, 2000.
Arlington, VA. For more information:

INET 2000: Internet Global Summit. Internet Society. July 18-20, 2000.
Yokohama, Japan. For more information: http://www.isoc.org/inet2000
Infomediaries: Leveraging Consumer Profile Data on the Web. Institutefor International Research. July 20-21, 2000. San Francisco, CA. HyattRegency Embarcadero Center. For more information:
http://www.iir-ny.com/conference.cfm?EventID=M1185
First International Hackers Forum. The Green Planet. August 18-20,
2000. Zaporozhye, Ukraine. For more information:
http://www.geocities.com/hack_forum
Surveillance Expo 2000. August 28-30, 2000. Arlington, VA. For moreinformation: http://www.surveillance-expo.com
KnowRight 2000 - InfoEthics Europe. Austrian Computer Society andUNESCO. September 26-29, 2000. Vienna, Austria. For more information:
http://www.ocg.at/KR-IE2000.html
One World, One Privacy: 22nd Annual International Conference onPrivacy and Personal Data Protection. September 28-30, 2000. Venice,
Italy. For more information: http://www.dataprotection.org/

Privacy: A Social Research Conference. New School University. October5-7, 2000. New York, NY. For more information:
http://www.newschool.edu/centers/socres/privacy/

Privacy2000: Information and Security in the Digital Age. October 31-
November 1, 2000. Columbus, Ohio. Adam's Mark Hotel. For moreinformation: http://www.privacy2000.org

Subscription Information

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About EPIC

The Electronic Privacy Information Center is a public interestresearch center in Washington, DC. It was established in 1994 tofocus public attention on emerging privacy issues such as the ClipperChip, the Digital Telephony proposal, national ID cards, medicalrecord privacy, and the collection and sale of personal information.
EPIC is sponsored by the Fund for Constitutional Government, anon-profit organization established in 1974 to protect civil libertiesand constitutional rights. EPIC publishes the EPIC Alert, pursuesFreedom of Information Act litigation, and conducts policy research.
For more information, e-mail infoepic.org, http://www.epic.org orwrite EPIC, 1718 Connecticut Ave., NW, Suite 200, Washington, DC20009. +1 202 483 1140 (tel), +1 202 483 1248 (fax).

If you'd like to support the work of the Electronic PrivacyInformation Center, contributions are welcome and fullytax-deductible. Checks should be made out to "The Fund forConstitutional Government" and sent to EPIC, 1718 ConnecticutAve., NW, Suite 200, Washington, DC 20009.

Your contributions will help support Freedom of Information Act andFirst Amendment litigation, strong and effective advocacy for theright of privacy and efforts to oppose government regulation ofencryption and expanding wiretapping powers.

Thank you for your support.

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END EPIC Alert 7.13

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