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EPIC Alert 10.01 [2003] EPICAlert 1








EPIC ALERT


Volume 10.01 January 16, 2003


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

http://www.epic.org/alert/EPIC_Alert_10.01.html


Table of Contents



[1] EPIC Wins FOIA Lawsuit Against Pentagon on Poindexter Records
[2] Sen. Feingold Introduces "Total Info" Moratorium Bill
[3] INS Seeks Information on U.S. Citizens Who Travel
[4] Court Grants EPIC Right to Discovery in Homeland Security Case
[5] Georgia Supreme Court Voids Fornication Law on Privacy Grounds
[6] Privacy International Urges UK Citizens to Oppose National ID Card
[7] EPIC Bill-Track: New Bills in Congress
[8] Upcoming Conferences and Events


[1] EPIC Wins FOIA Lawsuit Against Pentagon on Poindexter Records


U.S. District Judge John Bates today issued a decision that rejects theDefense Department's attempt to impose financial obstacles to EPIC'srequests under the Freedom of Information Act (FOIA). The court ruledthat EPIC is entitled to "preferred fee status" under the FOIA andordered the Pentagon to "expeditiously" process EPIC's almost year-oldrequest for information concerning Admiral John Poindexter and theInformation Awareness Office (see item below concerning thecontroversial Total Information Awareness program).

Under 1986 legislative amendments to FOIA enacted in an effort to "keepfees from becoming an unnecessary barrier to disclosure," entitiesgranted "news media status" are not required to pay search andduplication fees related to their FOIA requests. EPIC has routinelybeen granted such status since its inception. In response to an EPICFOIA request submitted in February 2002 seeking documents fromPoindexter's office, DoD refused to process the request unless EPICagreed to incur substantial fees. The agency claimed that EPIC, as anon-profit public interest organization, did not fall within DoD'sdefinition of "representative of the news media."

In granting EPIC news media status, Judge Bates noted EPIC'spublication activities and stated:

EPIC gleans the information it publishes in its books from a wide variety of sources, including FOIA requests, state and federal courts, government agencies, universities,
international groups, law reviews, interest groups, and even other news sources. EPIC researches issues on privacy and civil liberties, reports on this information, analyzes relevant data, evaluates the newsworthiness of material and puts the facts and issues into context, publishing and distributing this "news" through the sale of its books to the public. All these activities are hallmarks of publishing,
news, and journalism.

The decision removes potential obstacles for requests submitted notonly by EPIC, but also by other public interest groups that seek toinform the public about significant (and secretive) governmentactivities. The immediate impact will be to expedite the release ofdocuments concerning data-mining initiatives within the Pentagon.

The court's opinion in EPIC v. DoD is available at:

http://www.epic.org/open_gov/foia/fees/EPICvDOD_decision.pdf



[2] Sen. Feingold Introduces "Total Info" Moratorium Bill


Sen. Russell Feingold (D-WI) has introduced legislation to place amoratorium on the development of the controversial Total InformationAwareness (TIA) project. TIA is a system being developed by AdmiralJohn Poindexter of the Defense Advance Research Projects Agency (DARPA)
that aims to sift though troves of personal information in order todetect potential terrorist activity. Feingold's legislation would stopdevelopment of this domestic surveillance system until Congress has hadan opportunity to review its implications.

Sen. Ron Wyden (D-OR) has also introduced legislation to halt the TIAproject. His legislation would be attached to the pending DefenseDepartment appropriations bill, but it currently contains a provisionthat could allow President Bush to override the moratorium.

Feingold's legislation follows a groundswell of Congressional criticismof TIA. The growing list of Senators raising questions about TIAincludes Susan Collins (R-ME), Charles Grassley (R-IA), Tom Harkin(D-IA), Charles Schumer (D-NY), Maria Cantwell (D-WA), and PatrickLeahy (D-VT). Sen. Collins, the incoming Chairwoman of theGovernmental Affairs Committee, recently said that the Pentagon project"raises extraordinary concerns about individual privacy." Sen.
Grassley has called for the Inspector General of the Department ofDefense to review the TIA project. Sen. Harkin has requested thatPoindexter be summoned before Defense Appropriations Subcommittee totestify on TIA. Sen. Schumer has called upon Defense Secretary DonaldRumsfeld to replace Poindexter, saying, "If we need a big brother, JohnPoindexter is the last guy on the list that I would choose." SenatorsLeahy, Cantwell and Feingold have sent a detailed letter to AttorneyGeneral Ashcroft requesting more information about the use ofdata-mining, and the extent to which the Department of Justice iscollaborating with DARPA on TIA.

EPIC and a coalition of groups that includes the American CivilLiberties Union, American Conservative Union, Eagle Forum, and theElectronic Frontier Foundation have joined the call for a moratorium onTIA. In a letter to the leaders of several key congressionalcommittees, the coalition argued that Congress should prohibit thedevelopment of TIA and other data mining initiatives.

Coalition Letter Calling For a Halt to TIA:

http://www.epic.org/privacy/profiling/TIA_coalition_letter.pdf

Sen. Feingold's TIA Moratorium Press Release:

http://www.epic.org/redirect/feingold.html

Sen. Wyden's Legislation for a Moratorium on TIA:

http://wyden.senate.gov/leg_issues/bills/tia_amendment.pdf

Sen. Grassley's Letter Requesting an Inspector General Investigation ofTIA:

http://www.fas.org/sgp/news/2002/11/gr112202.html

Sen. Harkin's Letter Requesting a TIA Hearing:

http://www.senate.gov/~harkin/news.cfm?id=189711

Letter from Senators Leahy, Cantwell and Feingold to Attorney GeneralAshcroft on Data Mining and TIA:

http://leahy.senate.gov/press/200301/011003.html

EPIC Total Information Awareness page:

http://www.epic.org/privacy/profiling/tia/



[3] INS Seeks Information on U.S. Citizens Who Travel


The Immigration and Naturalization Service (INS) has proposed a newrule that would require all individuals leaving or entering the UnitedStates -- including U.S. citizens -- to provide certain personalinformation to the government in advance of an aircraft or vessel'sarrival in or departure from the United States. The required datawould include complete name; date of birth; citizenship; sex; passportnumber and country of issuance; country of residence; United Statesvisa number, date, and place of visa issuance, where applicable; alienregistration number, where applicable; and United States address whilein the United States. Such identification requirements currently applyonly to non-resident aliens.

The new rule proposes to implement section 402, titled PassengerManifests, of the Enhanced Border Security and Visa Entry Reform Act of2002 (Pub. L. 107-173), which requires that commercial carrierstransporting passengers to or from the United States deliver arrivaland departure manifest information electronically to the INS, beginningno later than January 1, 2003.

The new rule proposes to require manifest data on certain passengersand voyages previously exempt from this requirement, including U.S.
citizens, lawful permanent resident aliens of the United States,
immigrants to the United States, and certain in-transit passengers.
The INS believes that the new rule is necessary to provide it withadvance notification of information necessary for the identification ofpassengers, crewmembers and any other occupant transported.
Furthermore, INS believes that this information will assist in theefficient inspection of passengers and crewmembers, and is necessaryfor the effective enforcement of the immigration laws.

Public comments on the proposed rule may be submitted until February 3in one of the following ways:

* Written comments should be submitted (with reference INS No. 2182-01)
to:

Director, Regulations and Forms Services Division Immigration and Naturalization Service 425 I Street NW., Room 4034 Washington, DC 20536
* Electronic comments should be submitted to the INS atinsregsusdoj.gov with INS No. 2182-01 in the subject heading.

The proposed INS rule is available at:

http://edocket.access.gpo.gov/2003/02-33145.htm

Additional information on the Enhanced Border Security and Visa EntryReform Act of 2002 is available at:

http://www.fas.org/irp/congress/2002_cr/h031202.html



[4] Court Grants EPIC Right to Discovery in Homeland Security Case


U.S. District Judge Colleen Kollar-Kotelly issued a decision onDecember 26 permitting EPIC to pursue discovery concerning the "natureof the authority" delegated to the Office of Homeland Security (OHS)
and its Director, Tom Ridge. The ruling came in a Freedom ofInformation Act lawsuit filed by EPIC after OHS took the position thatit is not subject to the open government law.

The Department of Justice sought dismissal of EPIC's FOIA lawsuit andargued that OHS is not an "agency" and therefore is not subject to theFOIA's disclosure requirements. The government asserted that the OHS"functions solely to advise and assist the President and, does notexercise substantial independent authority." It likened the OHS to theNational Security Council, which the D.C. Circuit Court in 1996 heldwas exempt from the FOIA.

EPIC, which will now seek information concerning the structure andactivities of OHS, firmly believes that, under well-establishedprinciples of open government, an entity like the OHS -- especiallywith its important mandate -- should be open to public oversight. TheFOIA, which, among other agencies, covers the CIA, FBI, and NSA, makesadequate provision for protecting sensitive information fromdisclosure. The creation of the new Department of Homeland Securitymakes the status of OHS even more significant, as the Office willcontinue to function within the White House and is likely to set policyfor the Department.

EPIC's initial request sought the disclosure of documents relating toOHS Director Tom Ridge's efforts to create a "trusted-traveler" cardand his plans to standardize state driver's licenses so as to create ade facto national identification system.

The decision in EPIC v. OHS is available at:

http://www.epic.org/open_gov/homeland/ohs_decision.pdf

For more information, see EPIC's Homeland Security Page:

http://www.epic.org/open_gov/homeland/



[5] Georgia Supreme Court Voids Fornication Law on Privacy Grounds


The Supreme Court of Georgia has invalidated a state anti-fornicationlaw, holding that "the government may not reach into the bedroom of aprivate residence and criminalize the private, noncommercial,
consensual sexual acts of two persons legally capable of consenting tothose acts." The 170-year-old Georgia law provides that sex betweenunmarried people constitutes a misdemeanor and could be fined at least$1000. The Court recognized that the "right to privacy has a value soessential to individual liberty in our society that its infringementmerits careful scrutiny by the courts."

The Court also rejected the prosecution's argument that an individualhas no right to privacy when they are a guest in another's home: " Wereject the broad assertion that people abandon their constitutionalguarantee to privacy when they enter as guests into the private home ofanother. An invitation to enter another person's private home does notinclude an implicit condition that the guest surrender hisconstitutional right to privacy."

The decision extends a 1998 ruling where the same court invalidated astate anti-sodomy law that was previously upheld by the U.S. SupremeCourt. The U.S. Supreme Court will revisit the issue of anti-sodomylaws this term in Lawrence and Garner v. Texas. That case will testsodomy laws in 13 states.

In re: J. M., a child, Case No. S02A1432, Supreme Court of Georgia,
January 13, 2003:

http://www2.state.ga.us/Courts/Supreme/pdf/s02a1432.pdf

Lawrence and Garner v. Texas, Lambda Case Review:

http://www.lambdalegal.org/cgi-bin/iowa/cases/record?record=93

EPIC Gender and Privacy Page:

http://www.epic.org/privacy/gender/



[6] Privacy International Urges UK Citizens to Oppose National ID Card


Looking for a way to voice your opposition to the United Kingdomgovernment's "Entitlement Card" National ID proposal? Here's yourchance. Privacy International and STAND, a UK group working to informthe public about privacy, censorship, and other issues, have set up acampaign allowing members of the UK public to leave phone or faxmessages for their Member of Parliament (MP) to let them know just whatthe public thinks of their National ID proposal. The UK government,
which is currently holding a "silent consultation" on the National IDcard -- and still claiming that there is majority support for ID cards
-- has confirmed that these phone/fax messages will be regarded aslegitimate responses in the consultation.

To voice your opposition to UK National ID, call 0845 330 7246 in theUK, or see below for a link to STAND's online fax service.

For more information, see Privacy International's UK ID Card page:

http://www.privacyinternational.org/issues/idcard/uk/

Fax your MP using STAND's online service:

http://www.stand.org.uk/



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


*House*

H.R.48: To develop and deploy technologies to defeat Internet jammingand censorship. Sponsor: Rep Cox, Christopher (R-CA). Committees: HouseInternational Relations. Latest Major Action: 1/7/2003 Referred toHouse committee. Status: Referred to the House Committee onInternational Relations.

H.R.69: To require the Federal Trade Commission to prescriberegulations to protect the privacy of personal information collectedfrom and about individuals who are not covered by the Children's OnlinePrivacy Protection Act of 1998 on the Internet, to provide greaterindividual control over the collection and use of that information, andfor other purposes. Sponsor: Rep Frelinghuysen, Rodney P. (R-NJ).
Committees: House Energy and Commerce. Latest Major Action: 1/7/2003Referred to House committee. Status: Referred to the House Committee onEnergy and Commerce.

H.R.70: To regulate the use by interactive computer services of SocialSecurity account numbers and related personally identifiableinformation. Sponsor: Rep Frelinghuysen, Rodney P. (R-NJ). Committees:
House Energy and Commerce. Latest Major Action: 1/7/2003 Referred toHouse committee. Status: Referred to the House Committee on Energy andCommerce.

H.R.71: To require customer consent to the provision of wireless calllocation information. Sponsor: Rep Frelinghuysen, Rodney P. (R-NJ).
Committees: House Energy and Commerce. Latest Major Action: 1/7/2003Referred to House committee. Status: Referred to the House Committee onEnergy and Commerce.

H.R.107: To amend the Federal Trade Commission Act to provide that theadvertising or sale of a mislabeled copy-protected music disc is anunfair method of competition and an unfair and deceptive act orpractice, and for other purposes. Sponsor: Rep Boucher, Rick (D-VA).
Committees: House Energy and Commerce; House Judiciary. Latest MajorAction: 1/7/2003 Referred to House committee. Status: Referred to theCommittee on Energy and Commerce, and in addition to the Committee onthe Judiciary, for a period to be subsequently determined by theSpeaker, in each case for consideration of such provisions as fallwithin the jurisdiction of the committee concerned.

H.R.115: To amend title 49, United States Code, to improve airportsecurity by using biometric security badges, and for other purposes.
Sponsor: Rep Hefley, Joel (R-CO). Committees: House Transportation andInfrastructure. Latest Major Action: 1/7/2003 Referred to Housecommittee. Status: Referred to the House Committee on Transportationand Infrastructure.

H.R.122: To amend section 227 of the Communications Act of 1934 toprohibit the use of the text, graphic, or image messaging systems ofwireless telephone systems to transmit unsolicited commercial messages.
Sponsor: Rep Holt, Rush D. (D-NJ). Committees: House Energy andCommerce. Latest Major Action: 1/7/2003 Referred to House committee.
Status: Referred to the House Committee on Energy and Commerce.

*Senate*

S.6 Comprehensive Homeland Security Act of 2003. A bill to enhancehomeland security and for other purposes. Sponsor: Sen Daschle, ThomasA. (D-SD). Committees: Senate Judiciary. Latest Major Action: 1/7/2003Referred to Senate committee. Status: Read twice and referred to theCommittee on the Judiciary.

S.16: A bill to protect the civil rights of all Americans, and forother purposes. Sponsor: Sen Daschle, Thomas A. (D-SD). Committees:
Senate Finance. Latest Major Action: 1/7/2003 Referred to Senatecommittee. Status: Read twice and referred to the Committee on Finance.

S.22: A bill to enhance domestic security, and for other purposes.
Sponsor: Sen Daschle, Thomas A. (D-SD). Committees: Senate Judiciary.
Latest Major Action: 1/7/2003 Referred to Senate committee. Status:
Read twice and referred to the Committee on the Judiciary.

S.41: A bill to strike certain provisions of the Homeland Security Actof 2002 (Public Law 107-296), and for other purposes. Sponsor: SenLieberman, Joseph I. (D-CT). Committees: Senate Governmental Affairs.
Latest Major Action: 1/7/2003 Referred to Senate committee. Status:
Read twice and referred to the Committee on Governmental Affairs.

S.113: A bill to exclude United States persons from the definition of"foreign power" under the Foreign Intelligence Surveillance Act of 1978relating to international terrorism. Sponsor: Sen Kyl, Jon (R-AZ).
Committees: Senate Judiciary. Latest Major Action: 1/9/2003 Referred toSenate committee. Status: Read twice and referred to the Committee onthe Judiciary.

S.123: A bill to exclude United States persons from the definition of"foreign power" under the Foreign Intelligence Surveillance Act of 1978relating to international terrorism. Sponsor: Sen Kyl, Jon (R-AZ).
Committees: Senate Judiciary. Latest Major Action: 1/9/2003 Referred toSenate committee. Status: Read twice and referred to the Committee onthe Judiciary.

S.153: A bill to amend title 18, United States Code, to establishpenalties for aggravated identity theft, and for other purposes.
Sponsor: Sen Feinstein, Dianne (D-CA). Committees: Senate Judiciary.
Latest Major Action: 1/14/2003 Referred to Senate committee. Status:
Read twice and referred to the Committee on the Judiciary.

EPIC Bill Track: Tracking Privacy, Speech, and Cyber-Liberties Billsin the 108th Congress, is available at:

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



[8] Upcoming Conferences and Events


9th Annual Digital Frontier Conference: Technology Means Business.
Kellogg School of Management. January 17-18, 2003. Chicago, IL. Formore information: http://www.digitalfrontier.org/

O'Reilly Bioinformatics Technology Conference. February 3-6, 2003.
San Diego, CA. For more information:
http://conferences.oreilly.com/macosxcon/

10th Annual Network and Distributed System Security Symposium. TheInternet Society. February 5-7, 2003. San Diego, CA. For moreinformation: http://www.isoc.org/ndss03/

Politics of Code: Shaping the Future of the Next Internet. OxfordUniversity Programme in Comparative Media Law and Policy. February 6,
2003. Oxford, England. For more information:
http://pcmlp.socleg.ox.ac.uk/code/

Third Annual Privacy & Data Security Summit: Implementing & ManagingPrivacy in a Complex Environment. International Association of PrivacyProfessionals. February 26-28, 2003. Washington, DC. For moreinformation: http://www.privacyassociation.org/html/conferences.html

Quality Labels for Web Sites: Alternative Approaches to Content Rating.
Programme in Comparative Media Law and Policy (PCMLP), OxfordUniversity. February 27, 2003. Kirchberg, Luxembourg. For moreinformation: http://saferinternet.org/news/Events-feb2003.asp

The Law and Technology of DRM: What will DRM technologies mean for thefuture of information? University of California, Berkeley, School ofInformation Management and Systems and Boalt Hall School of Law.
February 27 - March 1, 2003. Berkeley, CA. For more information:
http://www.law.berkeley.edu/institutes/bclt/drm/

Legal and Pedagogical Aspects of a Safer Internet. Programme inComparative Media Law and Policy (PCMLP), Oxford University. February28, 2003. Kirchberg, Luxembourg. For more information:
http://saferinternet.org/news/Events-feb2003.asp

Spectrum Policy: Property or Commons? Stanford Law School Center forInternet and Society. March 1, 2003. For more information:
http://cyberlaw.stanford.edu/spectrum/

P&AB's Privacy Practitioners' Workshop and Ninth Annual NationalConference. Privacy & American Business. March 12-14, 2003.
Washington, DC. For more information:
http://www.pandab.org/postcard.pdf

CFP2003: 13th Annual Conference on Computers, Freedom, and Privacy.
Association for Computing Machinery (ACM). April 1-4, 2003. New York,
NY. For more information: http://www.cfp2003.org/

28th Annual AAAS Colloquium on Science and Technology Policy. AmericanAssociation for the Advancement of Science. April 10-11, 2003.
Washington, DC. For more information:
http://www.aaas.org/spp/rd/colloqu.htm

Integrating Government With New Technologies '03: E-Government, Changeand Information Democracy. Riley Information Services. April 11, 2003.
Ottawa, Canada. For more information: http://www.rileyis.com/seminars/

RSA Conference 2003. RSA Security. April 13-17, 2003. San Francisco,
CA. For more information: http://www.rsaconference.com/

O'Reilly Emerging Technology Conference. April 22-25, 2003. SantaClara, CA. For more information: http://conferences.oreilly.com/etcon/

O'Reilly Open Source Convention. July 7-11, 2003. Portland, OR. Formore information: http://conferences.oreilly.com/oscon/

Privacy2003. Technology Policy Group. September 30 - October 2, 2003.
Columbus, OH. For more information: http://www.privacy2000.org/



EPIC Publications:

"The Privacy Law Sourcebook 2002: United States Law, InternationalLaw, and Recent Developments," Marc Rotenberg, editor (EPIC 2002).
Price: $40. http://www.epic.org/bookstore/pls2002/

The "Physicians Desk Reference of the privacy world." An invaluableresource for students, attorneys, researchers and journalists who needan up-to-date collection of U.S. and International privacy law, aswell as a comprehensive listing of privacy resources.



"FOIA 2002: Litigation Under the Federal Open Government Laws," HarryHammitt, David Sobel and Mark Zaid, editors (EPIC 2002). Price: $40.
http://www.epic.org/bookstore/foia2002/

This is the standard reference work covering all aspects of theFreedom of Information Act, the Privacy Act, the Government in theSunshine Act, and the Federal Advisory Committee Act. The 21stedition fully updates the manual that lawyers, journalists andresearchers have relied on for more than 25 years. For those wholitigate open government cases (or need to learn how to litigatethem), this is an essential reference manual.



"Privacy & Human Rights 2002: An International Survey of Privacy Lawsand Developments" (EPIC 2002). Price: $25.
http://www.epic.org/bookstore/phr2002/

This survey, by EPIC and Privacy International, reviews the state ofprivacy in over fifty countries around the world. The survey examinesa wide range of privacy issues including data protection, telephonetapping, genetic databases, video surveillance, location tracking, IDsystems and freedom of information laws.



"Filters and Freedom 2.0: Free Speech Perspectives on Internet ContentControls" (EPIC 2001). Price: $20.
http://www.epic.org/bookstore/filters2.0/

A collection of essays, studies, and critiques of Internet contentfiltering. These papers are instrumental in explaining why filteringthreatens free expression.



"The Consumer Law Sourcebook 2000: Electronic Commerce and the GlobalEconomy," Sarah Andrews, editor (EPIC 2000). Price: $40.
http://www.epic.org/cls/

The Consumer Law Sourcebook provides a basic set of materials forconsumers, policy makers, practitioners and researchers who areinterested in the emerging field of electronic commerce. The focus ison framework legislation that articulates basic rights for consumersand the basic responsibilities for businesses in the online economy.



"Cryptography and Liberty 2000: An International Survey of EncryptionPolicy," Wayne Madsen and David Banisar, authors (EPIC 2000). Price:
$20. http://www.epic.org/crypto&/

EPIC's third survey of encryption policies around the world. Theresults indicate that the efforts to reduce export controls on strongencryption products have largely succeeded, although severalgovernments are gaining new powers to combat the perceived threats ofencryption to law enforcement.



EPIC publications and other books on privacy, open government, freeexpression, crypto and governance can be ordered at:

EPIC Bookstore http://www.epic.org/bookstore/

"EPIC Bookshelf" at Powell's Books http://www.powells.com/features/epic/epic.html


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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 publishes the EPIC Alert, pursues Freedom of Information Actlitigation, and conducts policy research. For more information,
e-mail infoepic.org, http://www.epic.org or write EPIC, 1718Connecticut Ave., NW, Suite 200, Washington, DC 20009.
+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 "EPIC" and sent to1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009.
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END EPIC Alert 10.01


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