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E P I C A l e r t
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Volume 10.01 January 16, 2003
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Published by the
Electronic Privacy Information Center (EPIC)
Washington, D.C.
http://www.epic.org/alert/EPIC_Alert_10.01.html
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Table of Contents
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[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
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[1] EPIC Wins FOIA Lawsuit Against Pentagon on Poindexter Records
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U.S. District Judge John Bates today issued a decision that rejects the
Defense Department's attempt to impose financial obstacles to EPIC's
requests under the Freedom of Information Act (FOIA). The court ruled
that EPIC is entitled to "preferred fee status" under the FOIA and
ordered the Pentagon to "expeditiously" process EPIC's almost year-old
request for information concerning Admiral John Poindexter and the
Information Awareness Office (see item below concerning the
controversial Total Information Awareness program).
Under 1986 legislative amendments to FOIA enacted in an effort to "keep
fees from becoming an unnecessary barrier to disclosure," entities
granted "news media status" are not required to pay search and
duplication fees related to their FOIA requests. EPIC has routinely
been granted such status since its inception. In response to an EPIC
FOIA request submitted in February 2002 seeking documents from
Poindexter's office, DoD refused to process the request unless EPIC
agreed to incur substantial fees. The agency claimed that EPIC, as a
non-profit public interest organization, did not fall within DoD's
definition of "representative of the news media."
In granting EPIC news media status, Judge Bates noted EPIC's
publication 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 not
only by EPIC, but also by other public interest groups that seek to
inform the public about significant (and secretive) government
activities. The immediate impact will be to expedite the release of
documents 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
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[2] Sen. Feingold Introduces "Total Info" Moratorium Bill
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Sen. Russell Feingold (D-WI) has introduced legislation to place a
moratorium on the development of the controversial Total Information
Awareness (TIA) project. TIA is a system being developed by Admiral
John Poindexter of the Defense Advance Research Projects Agency (DARPA)
that aims to sift though troves of personal information in order to
detect potential terrorist activity. Feingold's legislation would stop
development of this domestic surveillance system until Congress has had
an opportunity to review its implications.
Sen. Ron Wyden (D-OR) has also introduced legislation to halt the TIA
project. His legislation would be attached to the pending Defense
Department appropriations bill, but it currently contains a provision
that could allow President Bush to override the moratorium.
Feingold's legislation follows a groundswell of Congressional criticism
of TIA. The growing list of Senators raising questions about TIA
includes Susan Collins (R-ME), Charles Grassley (R-IA), Tom Harkin
(D-IA), Charles Schumer (D-NY), Maria Cantwell (D-WA), and Patrick
Leahy (D-VT). Sen. Collins, the incoming Chairwoman of the
Governmental 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 of
Defense to review the TIA project. Sen. Harkin has requested that
Poindexter be summoned before Defense Appropriations Subcommittee to
testify on TIA. Sen. Schumer has called upon Defense Secretary Donald
Rumsfeld to replace Poindexter, saying, "If we need a big brother, John
Poindexter is the last guy on the list that I would choose." Senators
Leahy, Cantwell and Feingold have sent a detailed letter to Attorney
General Ashcroft requesting more information about the use of
data-mining, and the extent to which the Department of Justice is
collaborating with DARPA on TIA.
EPIC and a coalition of groups that includes the American Civil
Liberties Union, American Conservative Union, Eagle Forum, and the
Electronic Frontier Foundation have joined the call for a moratorium on
TIA. In a letter to the leaders of several key congressional
committees, the coalition argued that Congress should prohibit the
development 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 of
TIA:
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 General
Ashcroft 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/
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[3] INS Seeks Information on U.S. Citizens Who Travel
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The Immigration and Naturalization Service (INS) has proposed a new
rule that would require all individuals leaving or entering the United
States -- including U.S. citizens -- to provide certain personal
information to the government in advance of an aircraft or vessel's
arrival in or departure from the United States. The required data
would include complete name; date of birth; citizenship; sex; passport
number and country of issuance; country of residence; United States
visa number, date, and place of visa issuance, where applicable; alien
registration number, where applicable; and United States address while
in the United States. Such identification requirements currently apply
only to non-resident aliens.
The new rule proposes to implement section 402, titled Passenger
Manifests, of the Enhanced Border Security and Visa Entry Reform Act of
2002 (Pub. L. 107-173), which requires that commercial carriers
transporting passengers to or from the United States deliver arrival
and departure manifest information electronically to the INS, beginning
no later than January 1, 2003.
The new rule proposes to require manifest data on certain passengers
and 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 with
advance notification of information necessary for the identification of
passengers, crewmembers and any other occupant transported.
Furthermore, INS believes that this information will assist in the
efficient inspection of passengers and crewmembers, and is necessary
for the effective enforcement of the immigration laws.
Public comments on the proposed rule may be submitted until February 3
in 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 at
insregs@usdoj.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 Entry
Reform Act of 2002 is available at:
http://www.fas.org/irp/congress/2002_cr/h031202.html
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[4] Court Grants EPIC Right to Discovery in Homeland Security Case
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U.S. District Judge Colleen Kollar-Kotelly issued a decision on
December 26 permitting EPIC to pursue discovery concerning the "nature
of the authority" delegated to the Office of Homeland Security (OHS)
and its Director, Tom Ridge. The ruling came in a Freedom of
Information Act lawsuit filed by EPIC after OHS took the position that
it is not subject to the open government law.
The Department of Justice sought dismissal of EPIC's FOIA lawsuit and
argued that OHS is not an "agency" and therefore is not subject to the
FOIA's disclosure requirements. The government asserted that the OHS
"functions solely to advise and assist the President and, does not
exercise substantial independent authority." It likened the OHS to the
National Security Council, which the D.C. Circuit Court in 1996 held
was exempt from the FOIA.
EPIC, which will now seek information concerning the structure and
activities of OHS, firmly believes that, under well-established
principles of open government, an entity like the OHS -- especially
with its important mandate -- should be open to public oversight. The
FOIA, which, among other agencies, covers the CIA, FBI, and NSA, makes
adequate provision for protecting sensitive information from
disclosure. The creation of the new Department of Homeland Security
makes the status of OHS even more significant, as the Office will
continue to function within the White House and is likely to set policy
for the Department.
EPIC's initial request sought the disclosure of documents relating to
OHS Director Tom Ridge's efforts to create a "trusted-traveler" card
and his plans to standardize state driver's licenses so as to create a
de 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/
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[5] Georgia Supreme Court Voids Fornication Law on Privacy Grounds
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The Supreme Court of Georgia has invalidated a state anti-fornication
law, holding that "the government may not reach into the bedroom of a
private residence and criminalize the private, noncommercial,
consensual sexual acts of two persons legally capable of consenting to
those acts." The 170-year-old Georgia law provides that sex between
unmarried people constitutes a misdemeanor and could be fined at least
$1000. The Court recognized that the "right to privacy has a value so
essential to individual liberty in our society that its infringement
merits careful scrutiny by the courts."
The Court also rejected the prosecution's argument that an individual
has no right to privacy when they are a guest in another's home: " We
reject the broad assertion that people abandon their constitutional
guarantee to privacy when they enter as guests into the private home of
another. An invitation to enter another person's private home does not
include an implicit condition that the guest surrender his
constitutional right to privacy."
The decision extends a 1998 ruling where the same court invalidated a
state anti-sodomy law that was previously upheld by the U.S. Supreme
Court. The U.S. Supreme Court will revisit the issue of anti-sodomy
laws this term in Lawrence and Garner v. Texas. That case will test
sodomy 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/
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[6] Privacy International Urges UK Citizens to Oppose National ID Card
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Looking for a way to voice your opposition to the United Kingdom
government's "Entitlement Card" National ID proposal? Here's your
chance. Privacy International and STAND, a UK group working to inform
the public about privacy, censorship, and other issues, have set up a
campaign allowing members of the UK public to leave phone or fax
messages for their Member of Parliament (MP) to let them know just what
the public thinks of their National ID proposal. The UK government,
which is currently holding a "silent consultation" on the National ID
card -- and still claiming that there is majority support for ID cards
-- has confirmed that these phone/fax messages will be regarded as
legitimate responses in the consultation.
To voice your opposition to UK National ID, call 0845 330 7246 in the
UK, 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/
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[7] EPIC Bill-Track: New Bills in Congress
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*House*
H.R.48: To develop and deploy technologies to defeat Internet jamming
and censorship. Sponsor: Rep Cox, Christopher (R-CA). Committees: House
International Relations. Latest Major Action: 1/7/2003 Referred to
House committee. Status: Referred to the House Committee on
International Relations.
H.R.69: To require the Federal Trade Commission to prescribe
regulations to protect the privacy of personal information collected
from and about individuals who are not covered by the Children's Online
Privacy Protection Act of 1998 on the Internet, to provide greater
individual control over the collection and use of that information, and
for other purposes. Sponsor: Rep Frelinghuysen, Rodney P. (R-NJ).
Committees: House Energy and Commerce. Latest Major Action: 1/7/2003
Referred to House committee. Status: Referred to the House Committee on
Energy and Commerce.
H.R.70: To regulate the use by interactive computer services of Social
Security account numbers and related personally identifiable
information. Sponsor: Rep Frelinghuysen, Rodney P. (R-NJ). Committees:
House Energy and Commerce. Latest Major Action: 1/7/2003 Referred to
House committee. Status: Referred to the House Committee on Energy and
Commerce.
H.R.71: To require customer consent to the provision of wireless call
location information. Sponsor: Rep Frelinghuysen, Rodney P. (R-NJ).
Committees: House Energy and Commerce. Latest Major Action: 1/7/2003
Referred to House committee. Status: Referred to the House Committee on
Energy and Commerce.
H.R.107: To amend the Federal Trade Commission Act to provide that the
advertising or sale of a mislabeled copy-protected music disc is an
unfair method of competition and an unfair and deceptive act or
practice, and for other purposes. Sponsor: Rep Boucher, Rick (D-VA).
Committees: House Energy and Commerce; House Judiciary. Latest Major
Action: 1/7/2003 Referred to House committee. Status: Referred to the
Committee on Energy and Commerce, and in addition to the Committee on
the Judiciary, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned.
H.R.115: To amend title 49, United States Code, to improve airport
security by using biometric security badges, and for other purposes.
Sponsor: Rep Hefley, Joel (R-CO). Committees: House Transportation and
Infrastructure. Latest Major Action: 1/7/2003 Referred to House
committee. Status: Referred to the House Committee on Transportation
and Infrastructure.
H.R.122: To amend section 227 of the Communications Act of 1934 to
prohibit the use of the text, graphic, or image messaging systems of
wireless telephone systems to transmit unsolicited commercial messages.
Sponsor: Rep Holt, Rush D. (D-NJ). Committees: House Energy and
Commerce. 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 enhance
homeland 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.16: A bill to protect the civil rights of all Americans, and for
other purposes. Sponsor: Sen Daschle, Thomas A. (D-SD). Committees:
Senate Finance. Latest Major Action: 1/7/2003 Referred to Senate
committee. 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 Act
of 2002 (Public Law 107-296), and for other purposes. Sponsor: Sen
Lieberman, 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 1978
relating to international terrorism. Sponsor: Sen Kyl, Jon (R-AZ).
Committees: Senate Judiciary. Latest Major Action: 1/9/2003 Referred to
Senate committee. Status: Read twice and referred to the Committee on
the Judiciary.
S.123: A bill to exclude United States persons from the definition of
"foreign power" under the Foreign Intelligence Surveillance Act of 1978
relating to international terrorism. Sponsor: Sen Kyl, Jon (R-AZ).
Committees: Senate Judiciary. Latest Major Action: 1/9/2003 Referred to
Senate committee. Status: Read twice and referred to the Committee on
the Judiciary.
S.153: A bill to amend title 18, United States Code, to establish
penalties 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 Bills
in the 108th Congress, is available at:
http://www.epic.org/privacy/bill_track.html
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[8] Upcoming Conferences and Events
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9th Annual Digital Frontier Conference: Technology Means Business.
Kellogg School of Management. January 17-18, 2003. Chicago, IL. For
more 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. The
Internet Society. February 5-7, 2003. San Diego, CA. For more
information: http://www.isoc.org/ndss03/
Politics of Code: Shaping the Future of the Next Internet. Oxford
University 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 & Managing
Privacy in a Complex Environment. International Association of Privacy
Professionals. February 26-28, 2003. Washington, DC. For more
information: 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), Oxford
University. February 27, 2003. Kirchberg, Luxembourg. For more
information: http://saferinternet.org/news/Events-feb2003.asp
The Law and Technology of DRM: What will DRM technologies mean for the
future of information? University of California, Berkeley, School of
Information 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 in
Comparative Media Law and Policy (PCMLP), Oxford University. February
28, 2003. Kirchberg, Luxembourg. For more information:
http://saferinternet.org/news/Events-feb2003.asp
Spectrum Policy: Property or Commons? Stanford Law School Center for
Internet and Society. March 1, 2003. For more information:
http://cyberlaw.stanford.edu/spectrum/
P&AB's Privacy Practitioners' Workshop and Ninth Annual National
Conference. 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. American
Association 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, Change
and 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. Santa
Clara, CA. For more information: http://conferences.oreilly.com/etcon/
O'Reilly Open Source Convention. July 7-11, 2003. Portland, OR. For
more information: http://conferences.oreilly.com/oscon/
Privacy2003. Technology Policy Group. September 30 - October 2, 2003.
Columbus, OH. For more information: http://www.privacy2000.org/
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EPIC Publications:
"The Privacy Law Sourcebook 2002: United States Law, International
Law, 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 invaluable
resource for students, attorneys, researchers and journalists who need
an up-to-date collection of U.S. and International privacy law, as
well as a comprehensive listing of privacy resources.
================================
"FOIA 2002: Litigation Under the Federal Open Government Laws," Harry
Hammitt, 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 the
Freedom of Information Act, the Privacy Act, the Government in the
Sunshine Act, and the Federal Advisory Committee Act. The 21st
edition fully updates the manual that lawyers, journalists and
researchers have relied on for more than 25 years. For those who
litigate open government cases (or need to learn how to litigate
them), this is an essential reference manual.
================================
"Privacy & Human Rights 2002: An International Survey of Privacy Laws
and Developments" (EPIC 2002). Price: $25.
http://www.epic.org/bookstore/phr2002/
This survey, by EPIC and Privacy International, reviews the state of
privacy in over fifty countries around the world. The survey examines
a wide range of privacy issues including data protection, telephone
tapping, genetic databases, video surveillance, location tracking, ID
systems and freedom of information laws.
================================
"Filters and Freedom 2.0: Free Speech Perspectives on Internet Content
Controls" (EPIC 2001). Price: $20.
http://www.epic.org/bookstore/filters2.0/
A collection of essays, studies, and critiques of Internet content
filtering. These papers are instrumental in explaining why filtering
threatens free expression.
================================
"The Consumer Law Sourcebook 2000: Electronic Commerce and the Global
Economy," Sarah Andrews, editor (EPIC 2000). Price: $40.
http://www.epic.org/cls/
The Consumer Law Sourcebook provides a basic set of materials for
consumers, policy makers, practitioners and researchers who are
interested in the emerging field of electronic commerce. The focus is
on framework legislation that articulates basic rights for consumers
and the basic responsibilities for businesses in the online economy.
================================
"Cryptography and Liberty 2000: An International Survey of Encryption
Policy," 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. The
results indicate that the efforts to reduce export controls on strong
encryption products have largely succeeded, although several
governments are gaining new powers to combat the perceived threats of
encryption to law enforcement.
================================
EPIC publications and other books on privacy, open government, free
expression, 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 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 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, 1718
Connecticut 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 Privacy
Information Center, contributions are welcome and fully
tax-deductible. Checks should be made out to "EPIC" and sent to
1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009.
Or you can contribute online at:
http://www.epic.org/donate/
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Latin at the same time! Receive a free epic.org "sed quis custodiet
ipsos custodes?" coffee mug with donation of $75 or more.
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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.
---------------------- END EPIC Alert 10.01 ----------------------
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