EPIC Alert 13.04 (23 February 2006)

E P I C A l e r t 

Volume 13.04 February 23, 2006

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


Table of Contents 
Court Orders Release of NSA Spy Documents to EPIC
EPIC Urges Privacy for Whois Data
Report on US-VISIT: Government is Lax on Security, Privacy 
Congress Slams Tech Firms On Censorship in China 
Federal Intelligence Agencies Reclassify Thousands of Documents
News in Brief 
EPIC Bookstore: James Bamford's "The Puzzle Palace" 
Upcoming Conferences and Events

Court Orders Release of NSA Spy Documents to EPIC 


In response to a Freedom of Information Act lawsuit filed by EPIC, a
federal judge has ordered the Department of Justice to either process and
release documents related to the Bush Administration's warrantless
surveillance program or explain why it will withhold them by March 8. It
is the first court ruling involving the controversial domestic spying

"President Bush has invited meaningful debate about the warrantless
surveillance program," U.S. District Judge Henry H. Kennedy wrote. "That
can only occur if DOJ processes [EPIC's] FOIA requests in a timely fashion
and releases the information sought."

He continued, "Given the great public and media attention that the
government's warrantless surveillance program has garnered and the recent
hearings before the Senate Judiciary committee, the public interest is
particularly well-served by the timely release of the requested

EPIC submitted FOIA requests to four Justice Department offices the same
day that the New York Times reported a secret presidential order
authorizing the National Security Agency to conduct warrantless
surveillance of international telephone and Internet communications on
American soil. Noting the extraordinary public interest in the program, as
well as its potential illegality, EPIC asked the offices to expedite the
processing of its requests. The Justice Department agreed that the
requests warranted priority treatment, but failed to comply with the
FOIA's usual time limit of twenty working days.

Last month, EPIC filed suit against the Justice Department to compel the
immediate disclosure of information about the warrantless surveillance.
EPIC's case has been consolidated with a lawsuit filed by the American
Civil Liberties Union and the National Security Archive concerning
requests for the same documents.

Once the Justice Department finishes processing the material, any decision
to withhold the requested documents will be subject to Judge Kennedy's
review. He will have the ability to order "in camera" production of the
material and make an independent determination concerning public

In related news, the American Bar Association has issued a report calling
upon President Bush to abide by constitutional checks and balances, and to
end electronic surveillance inside the United States that does not comply
with the requirements of the Foreign Intelligence Surveillance Act. The
Association expressed overwhelming support for the report, which also
urged the Congress to undertake comprehensive investigations of the Bush
Administration's domestic surveillance activities.

Judge Kennedy's order in EPIC v. DOJ:


EPIC's Domestic Surveillance FOIA Page:


American Bar Association report:


EPIC's Foreign Intelligence Surveillance Act Page:



EPIC Urges Privacy for Whois Data 


On February 13, EPIC submitted comments urging privacy protections for
Whois data, in response to ICANN's Preliminary Task Force Report on the
Purpose of Whois. Whois provides the personal contact information for the
owners of domain names.

The Task Force was put together in order to determine how the Whois
function of domain name registry is supposed to work, and what information
about domain name owners should be made public.

ICANN is the corporation that manages the assignment of domain names (such
as epic.org) to Internet Protocol addresses (such as
Every person or company that registers a domain name is required to make
certain information publicly accessible to a Whois lookup. This
information includes the contact information for the domain name holder,
including her mailing address, email address, telephone number, and fax
number. This same information has to be provided for the site's
administrative contact and technical contact.

EPIC recommended that ICANN adopt "Formulation One," which limits the use
of Whois data to technical and administrative purposes only. EPIC
specifically opposed a proposal that would make Whois data available for
broader purposes, such as law enforcement and copyright investigations.

Since ICANN doesn't let users register anonymously, EPIC contended,
"anyone with Internet access has access to Whois data, including stalkers,
corrupt governments cracking down on dissidents, spammers, aggressive
intellectual property lawyers, and police agents without legal authority."
The comments also pointed out that, since the information was available
worldwide, and available for all registrants, Whois data can prove
dangerous to "political, artistic, and religious groups around the world
[who] rely on the Internet to provide information and express views while
avoiding persecution."

EPIC further explained that ICANN's Whois policy conflicts with the laws
of many countries that have comprehensive privacy laws and the European
Union's Data Protection Directive. The Directive requires that when
information is collected, it be used only for its intended purpose.

EPIC argued that much of this information in Whois is unnecessary for its
intended purpose, which was to allow network administrators to find and
fix technical problems with minimal hassle in order to maintain the
stability of the Internet. Providing more information that is necessary
for this basic purpose, EPIC said, could also increase the risk of
identity theft for domain name holders.

ICANN's Preliminary Report on Whois:


EPIC's Comments on Whois:


EPIC's Whois Page:


Privacy and Human Rights 2004 Report on Whois:


Report on US-VISIT: Government is Lax on Security, Privacy 


The Department of Homeland Security's sluggishness has jeopardized the
effectiveness of the US-VISIT border security program, according to a new
report from the Government Accountability Office. Homeland Security has
yet to develop and begin implementing a system security plan and privacy
impact assessment, the key recommendation that the GAO made when it
assessed the program two and a half years ago.

US-VISIT requires foreign nationals entering or exiting the country to
submit biometric and biographical information. This data collection often
begins before a visitor buys her plane ticket, as U.S. consular offices
abroad may, before issuing a U.S. visa, collect fingerscans from potential
visitors and compare them against those in a criminal database.
Fingerscans are again collected upon the visitor's arrival in the U.S. for
verification and then stored in a government database, along with
travelers' arrival and departure records. Failure to be processed through
this departure confirmation system could jeopardize a visitor's
re-admittance to the U.S., as the government compares the manifest
information provided by air and cruise lines to ascertain that visitors
have not overstayed their visas.

The GAO report found that US-VIST has yet to complete a strategic plan and
key cost-benefit analyses, despite the $1.4 billion already spent on the
program and despite GAO's strong recommendation in 2002 that it do so.
"However, although considerable time has passed since the recommendations
were made, key actions have not yet been taken in such critical areas as
(1) assessing security risks and planning for cost-effective controls to
address the risks, (2) determining -- before US-VISIT increments are
deployed -- whether each increment will produce mission value commensurate
with cost and risk, and (3) ensuring that each increment is adequately
tested," the GAO said.

Of the 18 recommendations the GAO suggested in 2002 to improve US-VISIT,
the Department of Homeland Security has only implemented two, the GAO
said. Homeland Security has "also taken steps to implement the other
recommendations partially completed 11 and is just beginning on five," the
GAO said. The GAO also said that the longer it took to implement the
recommendations, "the greater the risk that the program will not meet its
stated goals and commitments."

Last month, Randolph Hite, GAO's Director of Information Technology
Architecture and Systems Issues, testified about US-VISIT before the
Senate Appropriations Committee's Subcommittee on Homeland Security. Hite
described problems with US-VISIT's current tests on the use of radio
frequency identification (RFID) tags in arrival and departure forms to
track people traveling through land ports. RFID tags do not ensure the
document belongs to the person carrying it and the technology is
imperfect, Director Hite said.

According to the GAO, "Despite DHS's estimate in February 2003, that the
total overall cost of the US-VISIT program would be about $7.2 billion
through fiscal year 2014, the potential government wide cost of US-VISIT
over just a 10-year period could be about twice as much." For Fiscal Year
2007, President Bush has requested $399.5 million for the US-VISIT
program, $62.9 million more than it received in 2006. Most of the increase
will go toward the expansion of US-VISIT's fingerprint system; it will now
capture all 10 fingerprints instead of two.

Government Accountability Office Report on US-VISIT (pdf):


Testimony of Randolph C. Hite, Government Accountability Office, Before
the Senate Subcommittee on Homeland Security (Jan. 25, 2006) (pdf):


Department of Homeland Security's Budget in Brief Fiscal Year 2007 (pdf):




Department of Homeland Security's US-VISIT Page:

http://www.dhs.gov/us-visit {http://www.dhs.gov/us-visit}

Congress Slams Tech Firms On Censorship in China 


On February 15, a subcommittee of the House International Relations
Committee held hearings on the presence of U.S. tech firms in China, and
the complicity of these companies in suppressing free speech in China.
Representatives from Yahoo, Cisco, Microsoft, and Google testified before
the subcommittee.

Each of the four firms has been implicated in helping the Chinese
government maintain a strict control over speech in the People's Republic
of China. Yahoo, for instance, gave Chinese authorities data on at least
two of its users who posted information critical of the government online.
The two users, Shi Tao and Li Zhi, were imprisoned for ten and eight
years, respectively, for separate incidents of speaking out against the

Cisco has come under fire for selling equipment that can be used to
monitor and censor speech, as well as training Chinese police in its use.
Upon requests by the government, Microsoft removed the blog of another
cyberdissident, Zhao Jing (aka "Anti"), not just from Chinese servers, but
from circulation entirely. Google, along with other search engines in
China, has self-censored its search results in exchange for being able to
operate in-country.

The hearings took a decidedly hostile tone, with both Republicans and
Democrats harshly criticizing the assembled witnesses for the companies.
Representative Tom Lantos (D-CA), pointedly asked the witnesses if they
were "ashamed" of their companies' actions. Representatives also blamed
China for its poor human rights record and its policies of censoring and
harassing or imprisoning dissidents. Yahoo and Google were most heavily
grilled, while Cisco was largely left unquestioned.

Human rights experts who testified in the next panel seemed to indicate,
however, that Cisco should have received further scrutiny. Harry Wu, of
the China Information Center, and Lucie Morillon of Reporters Without
Borders both targeted Cisco for training Chinese police in the use of
Cisco networking equipment that can be used to monitor online speech. The
panel's witnesses, who also included Sharon Hom of Human Rights in China,
Xiao Qiang of Berkeley's China Internet Project, and Libby Liu of Radio
Free Asia all called for tech companies in China to take a firmer stand
against speech-repressive policies overseas.

Representative Christopher Smith (R-NJ), who chairs the Subcommittee on
Africa, Global Human Rights, and International Operations, and who called
for the hearing, has proposed a bill that would, among many other things,
prevent search engines and Internet hosting services from operating within
China and other designated countries.

Hearing Notice, "The Internet in China: A Tool for Freedom or


Subcommittee Home Page (includes links to hearing testimony and webcast):


Human Rights in China Home Page:


Reporters Without Borders China Page:


Draft Version of Rep. Smith's Global Online Freedom Act of 2006 (pdf):


Privacy and Human Rights 2004 China Report:


EPIC's Filters and Freedom 2.0:


Federal Intelligence Agencies Reclassify Thousands of Documents 


Intelligence agencies have reclassified about 9,500 documents that were
available to the public for years at the National Archives, according to a
recent report by the New York Times. The effort began seven years ago
after the CIA and five other agencies complained about the implications of
a declassification order signed by President Clinton in 1995. About 8,000
documents have been reclassified during the Bush presidency alone.

Documents that have been taken off the Archive's shelves through the
program include decades-old reports from the State Department, as well as
historical documents that researchers photocopied and have kept in their

The National Archives' Information Security Oversight Office launched an
investigation into the program after receiving complaints from historians
and reviewing 16 reclassified documents, none of which were found to
warrant secrecy.

Furthermore, the office had not been informed of reclassifications made
through the program, even though a 2003 law requires reclassifications to
be reported to the office. While the office cannot order that the
documents be declassified, its director, William J. Leonard, is the
President's top advisor on classification policy and may urge the White
House to terminate the program.

A hint of the reclassification program's existence came in 2004, when a
State Department official informed the agency's Historical Advisory
Committee that the CIA had been reclassifying State Department documents.
In that meeting, CIA officials "claimed the right to remove documents from
the open files that, in their view, had never been 'properly

Under current executive orders, secret documents must be made public after
25 years unless there is a compelling reason to keep them classified.

New York Times, U.S. Reclassifies Many Documents in Secret Review:


National Archives Information on Declassification:


Minutes of the State Department Historical Advisory Committee Meeting
(Sept. 2004):


EPIC's Open Government Litigation Page:


EPIC's Litigation Under the Federal Open Government Laws:


News in Brief 

New Anti-Identity Theft Resource for Katrina/Rita Victims

EPIC has prepared an easy to use guide for those affected by the
devastation of last year's hurricane season. The involuntary relocation of
300,000 persons dispossessed many people of their property, means of
providing identification, and community support for establishing identity,
thus placing those affected at a higher risk of identity theft. To help,
EPIC has created a resource to advise evacuees on what to do if they
suspect identity theft, and the best means of protecting themselves from
identity thieves. The best defense against identity theft is monitoring
your credit report and placing restrictions with credit reporting agencies
on providing information about you to credit grantors or others.

EPIC's Identity Theft Resource for Hurricane Victims:


EPIC Urges Personal Data Be Scrubbed from Court Files

In comments to the federal judiciary, EPIC called for changes to
procedural rules to shield personal information in court files from
disclosure. EPIC argued that the very purpose of public records -- the
ability of the individual to learn about the government -- is turned on
its head when the records include excessive personal information. Instead
of being a citizen's window into government activities, these records are
giving the government, law enforcement, and data brokers a window into our
daily lives. EPIC made several specific recommendations, including
preventing commercial uses of public records, limiting bulk access to
records, and removing unique identifiers from the records.

EPIC Comments on Personal Data in Court Files:


EPIC Privacy and Public Records Page:


Canada to Establish Do-Not-Call List

The Canadian Radio-television and Telecommunications Commission (CRTC) is
seeking comments from the public on the development of a national
do-not-call registry and telemarketing rules. Comments are due by May
10th. The CRTC will also hold a public meeting on the proceeding from May
2-5, 2006 in Gatineau, Quebec.

Do-Not-Call Registry Press Release:


EPIC Warns Ethics Board of Attorneys' Use of Pretexting

In a letter sent to lawyers' ethics boards, EPIC warned that attorneys
appear to be major purchases of "pretexting" services, and that use of
such services is unethical under state professional responsibility rules.
Pretexting is the practice of using false pretenses to trick a company
into releasing personal information. EPIC urged state boards to evaluate
pretexting under ethics rules, and to issue opinions to attorneys advising
them not to pretext or hire investigators who use pretexting to obtain
information. Generally, ethical rules governing attorneys prevent them
from engaging in fraud, dishonesty, or misrepresentation.

Since pretexting involves impersonation or other fraud to obtain personal
information, EPIC argued that ethics boards must advise attorneys not to
engage in the practice.

EPIC Letter to Ethics Boards:


EPIC Pretexting Page:


Groups Urge San Francisco to Deploy Privacy-Friendly Wifi Network

The ACLU of Northern California, EFF, and EPIC submitted comments to San
Francisco TechConnect urging it to establish a privacy-friendly municipal
broadband service in the city. San Francisco TechConnect has been tasked
by Mayor Gavin Newsom to research options for a free or low-cost municipal
Internet service. In October 2005, the groups highlighted privacy issues
in a letter to TechConnect, and the agency incorporated the issues as
questions posed to providers in the city's formal request for proposals.
Provider proposals were due this week, and several were expected to pitch
systems that would use personal information for advertising or otherwise
implicate privacy interests. The coalition comments urged TechConnect to
set minimum standards for privacy protection in the new network, including
accommodations for anonymous and pseudonymous users, limits on the
retention of personal information, and strong standards protecting users'
interests when legal demands are made for network data.

Coalition Letter on San Francisco Municipal Broadband:


San Francisco TechConnect:


UK Moves Closer To Mandatory National ID Card

The House of Commons last week voted to require that all Britons seeking
passports also obtain a government-issued identity card that would include
biometrics such as a scanned fingerprint or a digital iris image. Privacy
advocates, including Privacy International, have vigorously opposed the
plan. A report by leading academics from the London School of Economics
indicates that the ID scheme will be costly, inefficient, and easily
subverted. The proposal goes next to the House of Lords.

London School of Economics Report (pdf):


EPIC's National ID Cards and REAL ID Act Page:


Houston Proposes Cameras in Public and in Private Places

Houston's Chief of Police proposed last week to install video surveillance
cameras in downtown streets, shopping malls, apartment complexes and even
private homes, in order to fight against crime and to remedy a shortage of
police officers. Chief Harold Hurtt's intended purpose is to make people
"feel safer" "in reality and perception." However, most studies of video
surveillance have shown that cameras do not reduce crime in public places,
because criminals simply go elsewhere to commit their crimes out of camera
range. Though the cameras may make residents "feel safer," their actual
safety is unchanged.

Houston Chronicle Article on Proposed Cameras:


EPIC's Video Surveillance Page:


FTC Announces Settlement in CardSystems Security Breach

On February 23, the Federal Trade Commission announced that it had reached
a settlement with CardSystems Solutions, Inc., whose poor security
practices led to the breach of tens of millions of consumers' personal
information. The company's unnecessary storage of personal data, along
with its lack of network protections, allowed fraudsters to rack up
millions of dollars in fraudulent purchases. The settlement requires
CardSystems and its successor company, Solidus Networks, to implement a
stronger security program and be audited every two years for the next
twenty years.

FTC Press Release on CardSystems:


Text of the CardSystems Settlement Agreement (pdf):


EPIC's Page on Identity Theft:


EPIC Bookstore: James Bamford's "The Puzzle Palace" 


The Puzzle Palace: Inside America's Most Secret Intelligence Organization.
Penguin Books, 1983.


"In this remarkable tour de force of investigative reporting, James
Bamford exposes the inner workings of America's largest, most secretive,
and arguably most intrusive intelligence agency. The NSA has long eluded
public scrutiny, but The Puzzle Palace penetrates its vast network of
power and unmasks the people who control it, often with shocking disregard
for the law.

With detailed information on the NSA's secret role in the Korean Airlines
disaster, Iran-Contra, the first Gulf War, and other major world events of
the 80s and 90s, this is a brilliant account of the use and abuse of
technological espionage."


EPIC Publications:

"Information Privacy Law: Cases and Materials, Secod Edition" Daniel
J. Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price:
$98. http://www.epic.org/redirect/aspen_ipl_casebook.html

This clear, comprehensive introduction to the field of information privacy
law allows instructors to enliven their teaching of fundamental concepts
by addressing both enduring and emerging controversies. The Second Edition
addresses numerous rapidly developing areas of privacy law, including:
identity theft, government data mining,and electronic surveillance law,
the Foreign Intelligence Surveillance Act, intelligence sharing, RFID
tags, GPS, sypware, web bugs, and more. Information Privacy Law, Second
Edition, builds a cohesive foundation for an exciting course in this
rapidly evolving area of law.


"Privacy & Human Rights 2004: An International Survey of Privacy Laws and
Developments" (EPIC 2004). Price: $50.


This annual report by EPIC and Privacy International provides an overview
of key privacy topics and reviews the state of privacy in over 60
countries around the world. The report outlines legal protections, new
challenges, and important issues and events relating to privacy. Privacy &
Human Rights 2004 is the most comprehensive report on privacy and data
protection ever published.


"FOIA 2004: Litigation Under the Federal Open Government Laws," Harry
Hammitt, David Sobel and Tiffany Stedman, editors
(EPIC 2004). Price: $40. http://www.epic.org/bookstore/foia2004

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 22nd 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.


"The Public Voice WSIS Sourcebook: Perspectives on the World Summit on the
Information Society" (EPIC 2004). Price: $40.


This resource promotes a dialogue on the issues, the outcomes, and the
process of the World Summit on the Information Society (WSIS). This
reference guide provides the official UN documents, regional and
issue-oriented perspectives, and recommendations and proposals for future
action, as well as a useful list of resources and contacts for individuals
and organizations that wish to become more involved in the WSIS process.


"The Privacy Law Sourcebook 2004: United States Law, International Law,
and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price: $40.

The Privacy Law Sourcebook, which has been called the "Physician's Desk
Reference" of the privacy world, is the leading resource for students,
attorneys, researchers, and journalists interested in pursuing privacy law
in the United States and around the world. It includes the full texts of
major privacy laws and directives such as the Fair Credit Reporting Act,
the Privacy Act, and the OECD Privacy Guidelines, as well as an up-to-date
section on recent developments. New materials include the APEC Privacy
Framework, the Video Voyeurism Prevention Act, and the CAN-SPAM Act.


"Filters and Freedom 2.0: Free Speech Perspectives on Internet Content
Controls" (EPIC 2001). Price: $20.


A collection of essays, studies, and critiques of Internet content
filtering. These papers are instrumental in explaining why filtering
threatens free expression.


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


EPIC also publishes EPIC FOIA Notes, which provides brief summaries of
interesting documents obtained from government agencies under the Freedom
of Information Act.

Subscribe to EPIC FOIA Notes at:

Upcoming Conferences and Events 


A Universal DNA Database: Do the Benefits Outweigh the Risks? The National
Academies. Washington, DC. February 28, 2006. For more information:

Call for papers for the Workshop on Generating Collaborative Research in
the Ethical Design of Surveillance Infrastructures.

The deadline for proposals is March 1, 2006. For more information:

IAPP National Summit. International Association of Privacy Professionals.
Washington, DC. March 8-10, 2006. For more information:

Beyond the Basics: Advanced Legal Topics in Open Source and Collaborative
Development in the Global Marketplace.
University of Washington School of Law. March 21, 2006. Seattle,
Washington. For more information:

Call for papers for the 34th Research Conference on Communication,
Information, and Internet Policy. Telecommunications Policy Research
Conference. Proposals should be based on current theoretical or empirical
research relevant to communication and information policy, and may be from
any disciplinary perspective. Deadline is March 31, 2006. For more
information: http://www.tprc.org/TPRC06/call06.htm

Making PKI Easy to Use. National Institutes of Health. April 4-6,
2006. Gaithersburg, Maryland. For more information: 


First International Conference on Availability, Reliability and Security.
Vienna University of Technology. April 20-22, 2006. Vienna, Austria. For 
more information:

CHI 2006 Workshop on Privacy-Enhanced Personalization. UC Irvine
Institute for Software Research and the National Science Foundation.
April 22-23. Montreal, Quebec, Canada. For more information:

The First International Conference on Legal, Security and Privacy Issues
in IT (LSPI). CompLex. April 30-May 2, 2006. Hamburg, Germany. For
moreinformation: http://www.kierkegaard.co.uk/

Computers, Freedom, and Privacy Conference (CFP 2006). Association for
Computing Machinery May 2-5, 2006. Washington, DC. For more information:

34th Research Conference on Communication, Information, and Internet
Policy. Telecommunications Policy Research Conference. September
29-October 1, 2006. Arlington, Virginia. For more information:

International Conference on Privacy, Security, and Trust (PST 2006).
University of Ontario Institute of Technology. October 20-November 1,
2006. Oshawa, Ontario, Canada. For more information:

BSR 2006 Annual Conference. Business for Social Responsibility.
November 7-10, 2006. New York, New York. For more information:

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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, see http://www.epic.org or write

EPIC, 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. +1
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If you'd like to support the work of the Electronic Privacy Information
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Your contributions will help support Freedom of Information Act and First
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privacy and efforts to oppose government regulation of encryption and
expanding wiretapping powers.

Thank you for your support.

------------------------- END EPIC Alert 13.04 -------------------------



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