EPIC logo

                            E P I C  A l e r t
Volume 11.03                                          February 11, 2004

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


Table of Contents

[1] EPIC FOIA Docs Show Acxiom Was Considered as TIA Data Source
[2] Pentagon Cancels Internet Voting Project
[3] FBI Asks FCC to Delay Discussion of Internet Phone Rules
[4] DHS Deputy Secretary Questioned About Passenger Profiling
[5] EPIC and PI Open Nominations for Brandeis, Big Brother Awards
[6] News in Brief
[7] EPIC Bookstore:  Protecting America's Health
[8] Upcoming Conferences and Events

[1] EPIC FOIA Docs Show Acxiom Was Considered as TIA Data Source

 EPIC has obtained a document under the Freedom of Information Act
 containing internal communications among Defense Advanced Research
 Project Agency (DARPA) employees considering data broker Acxiom as a
 supplier of personal information for the Total Information Awareness
 (TIA) program.  In an e-mail dated May 21, 2002 to TIA developers
 John Poindexter and Robert Popp, a DARPA employee writes that "Acxiom
 is the nation's largest commercial data warehouse company ($1B/year)
 with customers like Citibank, Walmart, and other companies whose
 names you know.  They have a history of treating privacy issues
 fairly and they don't advertise at all.  As a result they haven't
 been hurt as much as ChoicePoint, Seisint, etc by privacy concerns
 and press inquiries."

 The e-mail claims that Jennifer Barrett, Acxiom's Chief Privacy
 Officer, provided recommendations that would help quell public
 scrutiny of the transfer of data from the company to the government:
 "One of the key suggestions she made is that people will object to
 Big Brother, wide-coverage databases, but they don't object to use of
 relevant data for specific purposes that we can all agree on.  Rather
 than getting all the data for any purpose, we should start with the
 goal, tracking terrorists to avoid attacks, and then identify the
 data needed (although we can't define all of this, we can say that
 our templates and models of terrorists are good places to start).
 Already, this guidance has shaped my thinking."

 The employee continues: "Ultimately, the US may need huge databases
 of commercial transactions that cover the world or certain areas
 outside the US.  This information provides economic utility, and thus
 provides two reasons why foreign countries would be interested.
 Acxiom could build this mega-scale database."

 In response, Robert Popp asked the employee about estimated costs
 associated with having Acxiom participate in the "TIA critical
 experiment," and for the company's assistance in helping Rand
 "identify all the relevant databases."

 DARPA E-mail Obtained by EPIC under the Freedom of Information Act:


For more information about TIA, see the EPIC Total Information
Awareness Page:

For more information about consumer profiling, see the EPIC Consumer
Profiling Page:

[2] Pentagon Cancels Internet Voting Project

Citing security concerns, the Pentagon has cancelled an Internet
voting project designed to let military and other personnel overseas
vote in the 2004 local and general elections.  The Defense Department
decided not to implement the program "in view of the inability to
ensure legitimacy of votes, thereby bringing into doubt the integrity
of the election[.]"

The Pentagon decision to abandon SERVE came two weeks after the
release of a security review that recommended cancellation of the
program because of numerous security risks.  The report, authored by a
panel of computer science experts, found the system vulnerable to
hacking, noted the lack of a paper audit, and pointed out the danger
to election data's validity.  The report concluded that the security
weaknesses inherent in voting over an Internet-based system were
"fundamental," and fixing those weaknesses would require a redesign of
the Internet itself.  Because these security risks could not be
mitigated, the computer security experts recommended the cancellation
of the SERVE program.

In other electronic voting news, EPIC obtained an independent security
and verification audit of Diebold voting machines commissioned by the
Maryland Legislature.  The legislative report agreed with an earlier
independent study of Diebold e-voting machines by Computer Security
expert Dr. Avi Rubin, at Johns Hopkins.  Like the Rubin study, the
legislative report found numerous security vulnerabilities in the
Diebold system.  The report also found that the Diebold system failed
to incorporate strategies to counter component failure, or any system

The SERVE Security Analysis Report:


The Maryland Legislature Study of Diebold Voting Machines:


     http://www.epic.org/privacy/voting/mdvote1.04app.pdf (appendix)

Dr. Avi Rubin’s Study of Diebold Voting Machines:


Verified Voting Coalition:


For more information on electronic voting, see EPIC's Voting Page:

[3] FBI Asks FCC to Delay Discussion of Internet Phone Rules 

The Federal Bureau of Investigation (FBI) recently sent a letter to
the Federal Communications Commission (FCC) asking the FCC to put off
any discussion concerning the regulation of Voice over Internet
Protocol (VoIP).  VoIP is a technology that allows Internet users to
make phone calls over high-speed Internet connections.  The FBI, along
with the Department of Justice (DOJ) and Drug Enforcement Agency
(DEA), want to delay the discussion until the FCC addresses how VoIP
communications can be monitored by law enforcement.

At the center of the debate is the 1994 Communications Assistance to
Law Enforcement Act (CALEA).  CALEA requires telecommunications
service providers to provide wiretapping access to law enforcement.
However, VoIP is currently an information service rather than a
telecommunications service and is therefore not subject to CALEA.  The
DOJ, FBI and DEA (DEA) are petitioning the FCC to regulate Internet
telephony in such a way that CALEA can be legally and technically
applied.  VoIP providers would have to rewire their networks to
government specifications so that law enforcement officials could more
easily listen in on VoIP calls.  The FCC remains hesitant to regulate
the technology.

In December, EPIC sent a letter to the FCC urging the agency to adopt
privacy protections for VoIP.  The letter states, "EPIC maintains our
strong reservations regarding the application of the Communications
Assistance to Law Enforcement Act (CALEA) requirements to this
service.  It is simply not coherent to argue that VoIP services should
be free of government regulation and then for the government to
require that communication service providers, hardware manufacturers,
and network developers incorporate the most extreme communications
surveillance requirements of the Federal Bureau of Investigation.
Communications technologies like VoIP should be designed for precisely
what they are intended for: to enable communication between people,
not to allow surveillance on private citizens."

According to FCC spokesman Michael Balmoris, the agency has decided to
press on with its review of VoIP this week despite the FBI's request.
The FCC is holding an open meeting Thursday, February 12, 2004 to
consider VoIP and related issues.  The meeting is scheduled for 9:30
a.m. in Room TW-C305 at 445 12th Street SW, Washington, D.C.

Audio/video coverage of the meeting will be broadcast live over the
Internet from the FCC's Audio/Video Events web page at:

The FCC's VoIP Page:


EPIC's letter to the FCC:


For more information on Voice over Internet Protocol, see EPIC's VoIP


[4] DHS Deputy Secretary Questioned About Passenger Profiling

Department of Homeland Security Deputy Secretary Admiral James Loy
encountered skepticism about the controversial Computer Assisted
Passenger Prescreening System (CAPPS II) program when he recently
testified before the National Commission of Terrorist Attacks Upon the
United States (9-11 Commission).  The 9-11 Commission is an
independent, bipartisan panel chartered by Congress and President Bush
to investigate and report on the circumstances surrounding the
September 11, 2001 terrorist attacks, and make recommendations on how
to prevent such attacks in the future.

After Admiral Loy testified on developments in transportation security
since the 9-11 attacks, Commissioner Fred F. Fielding asserted that
the expansion of CAPPS II from an aviation security measure to a law
enforcement tool demonstrated "classic mission creep."  Admiral Loy
resisted the characterization of the program, but stated that CAPPS II
"should be as pristine as we can make it, focused on exactly what we
want to use it for."  In response to further questioning from
Commissioner Fielding, Admiral Loy conceded that CAPPS II is
"gameable," and noted that the system as currently designed would
label approximately 14.5 percent of air travellers "selectees" subject
to, at a minimum, secondary screening.

Today the Associated Press reported that a General Accounting Office
report on CAPPS II commissioned by Congress and scheduled for release
on February 13 states that the Transportation Security Administration
has not adequately addressed privacy and security concerns presented
by the program.  The findings of the report will weaken Congressional
support for CAPPS II and throw the program's future into doubt.

In related news, The Article 29 Working Party (WP29) has released its
opinion on the December 16, 2003 agreement between the Department of
Homeland Security and the European Commission (EC) on the disclosure
of passenger data between the European Union (EU) and the United
States.  The opinion concluded that the agreement is inadequate under
EU data protection laws.

The WP29 opinion recommends: 1) restricting the purpose of the
disclosure to the fight against terrorism, 2) implementing shorter and
more proportionate data retention periods, 3) not using data for
implementing and/or testing CAPPS II or similar systems, 4) providing
passengers with access to an independent redress mechanism, 5) making
the agreement fully binding on the United States, and 6) strictly
limiting further disclosures of passenger data to other government or
foreign authorities.  The WP29 opinion, though not binding on the EC,
may have an impact on Members of the European Parliament when they
vote in March on whether to adopt the EC's decision of adequacy, as
well as on EU Member State data protection authorities in their
decisions to pursue complaints by passengers for breach of EU privacy
laws by airline companies.

Article 29 Working Party Opinion 2/2004 (WP 87) on the Adequate
Protection of Personal Data Contained in the PNR of Air Passengers to
Be Transferred to the United States Bureau of Customs and Border


European Commission's Communication to the Council and Parliament on
the Transfer of Air Passenger Name Record Data:


For more information on the transfer of passenger information between
the European Union and United States, see EPIC's EU-US Airline
Passenger Data Page:


For more information about CAPPS II, see EPIC's Passenger Profiling


[5] EPIC and PI Open Nominations for Brandeis, Big Brother Awards

In April 2004, EPIC and Privacy International (PI) will hold the sixth
U.S. "Big Brother Awards" to name and shame the public and private
sector individuals and organizations that have done the most to invade
personal privacy in the United States in the past year.  Three
distinctive "Orwell" statues of a golden boot stomping a head will be
presented to the government agencies and officials, companies and
initiatives that have done the most to invade personal privacy in the
previous year.  The "Admiral John M. Poindexter Lifetime Menace" award
will also be presented to an organization that has systematically
invaded privacy over a long period of time.

The judging panel, which consists of lawyers, academics, consultants,
journalists and civil rights activists, is currently inviting
nominations from members of the public.  Nominations can be submitted
via the PI website.

Previous "winners" include the Federal Bureau of Investigation, the
National Security Agency, DoubleClick, ChoicePoint, Delta Airlines,
Trans Union, Oracle, the FAA's BodyScan system, the Department of
Commerce and Microsoft.

"Brandeis" awards will also be given out to champions of privacy.  The
Brandeis Award is named after U.S. Supreme Court Justice Louis
Brandeis, who is considered the father of American privacy law,
describing privacy as "the right most valued by civilized" persons.
The awards are given to those who have done exemplary work to protect
and enhance privacy.  Previous winners include Phil Zimmermann,
creator of PGP; Beth Givens, founder of the Privacy Rights
Clearinghouse; and Robert Ellis Smith, editor of the Privacy Journal.

The Big Brother Awards are celebrated internationally.  There have
also been ceremonies in the UK, Germany, Austria, Finland, Japan,
Bulgaria, Belgium, Spain, Switzerland, Hungary, France, Denmark and
the Netherlands.

Big Brother Awards France (BBAF) recently held the year's first Big
Brother ceremony to "honor" six French individuals, initiatives and
companies with Big Brother prizes.  BBAF also presented a Voltaire
Award to a group of teachers who resisted government pressure to
become police informers against their students.

Big Brother Awards:

Submit a nomination:
Big Brother Awards France:


[6] News in Brief


Utah has ceased participation in a controversial data mining program,
joining other states that have either left the program or are
scrutinizing their continued participation.  Last week, Utah Governor
Olene Walker withdrew Utah from the Multistate Anti-Terrorism
Information Exchange (MATRIX) program, which allows law enforcement
officials to instantly request information on a person from multiple
data sources, both public and private.  Neither Governor Walker nor
the Utah Legislature had been briefed on Utah’s involvement with the
program.  Under former Utah Governor Mike Leavitt, Utah was to have
shared drivers license information, criminal records, and other
records with MATRIX.  Connecticut legislators have also begun to
examine whether their state should remain in MATRIX, while Georgia
recently terminated all connections with the MATRIX program, citing
privacy concerns.  Six states remain enrolled in MATRIX out of the
original thirteen states that participated in the prototype program.

EPIC’s amicus brief before the Supreme Court in Hiibel v. Nevada
describing MATRIX:


MATRIX program webpage:



President Bush has proposed greater funding for homeland security
initiatives in the administration's fiscal year 2005 budget request.
The administration requested that $60 million be allotted for the
Computer Assisted Passenger Prescreening System (CAPPS II), a
significant increase over the $45 million proposed for the program in
fiscal year 2004.  The administration has also requested that the
Justice Department be given $2.2 billion for information technology
programs, which would constitute a 6 percent increase in the agency's
overall budget from fiscal year 2004.  $34 million is slated to go
toward the integration of fingerprint systems maintained by the FBI
and former INS.  A combined $64.5 has been requested for the Terrorist
Screening Center, which will consolidate existing terrorist watch
lists, and the Terrorist Threat Integration Center, which will allow
law enforcement and the Department of Homeland Security to share
information in terrorism investigations.

The Bush Administration's 2005 Budget Request:



A New Jersey appeals court has issued a decision that provides
stronger protection for financial records than is currently afforded
by federal law.  To acquire an individual's financial records from a
financial institution, the State now will have to obtain a search
warrant or a grand jury subpoena and notify the target of the
investigation.  In most circumstances, federal law requires only that
individuals be given notice and an opportunity to object before a bank
or other specified institution can disclose personal financial
information to the federal government for law enforcement purposes.
Notably, the New Jersey court specifically rejected a 1970s Supreme
Court decision that refused to recognize privacy rights in information
held by third parties.  That decision has allowed police to obtain
information from a vast array of businesses without notice to
individuals or involvement with an independent magistrate.

The New Jersey appellate decision is available at:


For more information about federal financial privacy law, see EPIC's
Right to Financial Privacy Act Page:



The Organization for Economic Cooperation and Development (OECD) held
a workshop on spam in Brussels last week to allow representatives of
OECD Member State governments, the European Commission, consumer
groups, and business stakeholders explore the problem of spam,
focusing on its international dimension.  Panels discussed sources and
characteristics of spam as well as its societal, economic, business
and technical impacts; approaches to combat spam; and the next steps
to increase international cooperation to fight spam.

OECD Background Paper for the OECD Workshop on Spam:


European Commission January 22, 2004 Communication on Unsolicited
Commercial Communications or "Spam":

Trans Atlantic Consumer Dialogue February 2004 survey on spam:


Trans Atlantic Consumer Dialogue February 2004 Resolution:


For more information on spam, see the EPIC Spam Page:



Artists Beatriz da Costa, Jamie Schulte, and Brooke Singer have
created the "SWIPE Toolkit," a collection of web-based utilities that
allow individuals to read the barcode on their driver's license and
request personal information from data brokers.  The Toolkit also
features a "data calculator" that shows the fair market value of
personal information, and the sources from which data brokers collect
the information.  The Toolkit is part of a larger performance,
installation, and workshop that heightens awareness about automated
collection of personal information.  In March 2004, a SWIPE
installation and performance will be exhibited at the Beall Center at
University of California-Irvine.

The SWIPE Toolkit:

The SWIPE Project:

Beall Center SWIPE Performance:

[7] EPIC Bookstore: Protecting America's Health

Protecting America's Health, The FDA, Business, and One Hundred Years
of Regulation, by Philip J. Hilts (Knopf 2003).

I have been interested in the history of the Food and Drug
Administration for some time.  The agency's development follows a
policy debate of central importance: in protecting public health, to
what degree will we adopt precautionary principles for food and drug
safety and purity?  The stakes are large, because regulation too
strict will increase food prices, while as Hilts demonstrates, pure or
even limited self-regulation results in serious harms to the public.
Before the process of establishing precautionary principles in food
and drug law took hold, manufacturers would lie, falsify evidence, and
withhold information on the dangers of drugs.  Food companies would
mislabel products, for instance, by passing off laboratory-created
glucose with added honeycombs and dye as pure honey.  Patent medicine
quacks would sell colored water as a cure for cancer, and products
containing opium to sooth children.

Hilts' book is also interesting because drug and food policy debates
closely track modern privacy law issues.  The same arguments used to
fight food and drug laws in 1900 are used today to prevent privacy
protection.  Invocations of "innovation" and free enterprise rights
repeatedly stopped Congress from enacting food and drug safety laws
until people died and were disfigured by reckless behavior.  In
hindsight, we know the food and drug manufacturers' arguments were
bogus­laws that required safety and purity, although imperfect,
reduced fraud and led to modern pharmaceutical science.  We also know
that not all innovation is good -- both in food and drugs and in
technology.  For instance, one well-known "innovation" quashed in the
early days of the FDA was the practice of collecting abandoned horses
in Manhattan for resale as "beef" in New Jersey.

In the conclusion, Hilts visits a now famous experiment that tested
the ethics of business school students.  In it, Wharton students were
placed in a role-playing situation where their profitable company is
reaping $1 million a month by continuing to market an ineffective,
unsafe drug.  A large majority of the students consistently chose the
profit-maximizing role, one that kept the drug on the market without
warnings, and actively frustrated government intervention.  Perhaps
the book should start with that study. It suggests that for all the
talk of the benefits self-regulation, the most privileged business
students will act like the charlatans of the 1900s (and believe that
it is their duty to shareholders to do so).  Hilts' book is a reminder
that there still is a strong role for law in consumer protection to
shield the public from less than ethical business behavior.
- Chris Jay Hoofnagle


EPIC Publications:

"The Privacy Law Sourcebook 2003: United States Law, International
Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2003).
Price: $40. http://www.epic.org/bookstore/pls2003/

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.

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 2003: An International Survey of Privacy Laws
and Developments" (EPIC 2002). Price: $35.

This survey, by EPIC and Privacy International, reviews the state of
privacy in over fifty-five countries around the world.  The survey
examines a wide range of privacy issues including data protection,
passenger profiling, genetic databases, video surveillance, ID systems
and freedom of information laws.


"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.


"The Consumer Law Sourcebook 2000: Electronic Commerce and the Global
Economy," Sarah Andrews, editor (EPIC 2000). Price: $40.

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/bookstore/crypto00&/

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

         "EPIC Bookshelf" at Powell's Books

[8] Upcoming Conferences and Events

Living with the New Private Sector - Privacy Law: What Your
Organization Needs to Know, a One Day Seminar and Training Session.
Riley Information Services Inc.  February 16, 2004.  Ottawa, Canada.
For more information:  http://www.rileyis.com/seminars/index.html.

Antiterrorism and the Security Agenda: Impacts on Rights, Freedoms,
and Democracy.  International Civil Liberties Monitoring Group.
February 17, 2004.  Ottawa, Ontario, Canada.  Email

SPAM Technology Workshop.  Computer Security Resource Center.
February 17, 2004.  Gaithersburg, MD.  For more information:

Free Seminar on Electronic Advocacy for Nonprofits.  Confluence.
February 18, 2004.  Washington, DC.  E-mail info@confluencecorp.com.

IAPP 4th Annual Privacy & Security Summit & Expo.  February 18-20,
2004.  Washington, DC.  For more information:

RSA Conference 2004 - The Art of Information Security.  February
23-27, 2004.  San Francisco, CA.  For more information:

Third Conference on Privacy and Public Access to Court Records.
Courtroom 21 Project.  February 27-28, 2004.  Williamsburg, VA.  For
more information: http://www.courtroom21.net.

PKC 2004: International Workshop on Practice and Theory in Public Key
Cryptography.  Institute for Infocomm Research.  March 1-4, 2004.
Sentosa, Singapore.  For more information: http://pkc2004.lit.org.sg.

A Summit on Healthcare Privacy and Data Security: HIPAA and Beyond.
Health Care Conference Administrators.  March 7-9, 2004.  Baltimore,
MD.  For more information: http://www.hipaasummit.com.

Securing Privacy in the Internet Age.  Stanford Law School.  March
13-14, 2004.  Palo Alto, CA.  For more information:

Sixth Annual National Freedom of Information Day Conference.  First
Amendment Center, in cooperation with the American Library
Association.  March 16, 2004.  Arlington, VA.  E-mail

CFP2004: 14th Annual Conference on Computers, Freedom, and Privacy.
Association for Computing Machinery (ACM).  April 20-23, 2004.
Berkeley, CA.  For more information: http://www.cfp2004.org.

2004 IEEE Symposium on Security and Privacy.  IIEEE Computer Society
Technical Committee on Security and Privacy, in cooperation with the
International Association for Cryptologic Research (IACR).  May 9-12,
2004. Oakland, CA.  For more information:

International Conference on Data Privacy and Security in a Global
Society.  Wessex Institute.  May 11-13, 2004.  Skiathos, Greece.  For
more information:

The Third Annual Workshop on Economics and Information Security.
University of Minnesota Digital Technology Center.  May 13-14, 2004.
Minneapolis, MN.  For more information:

Workshop on Privacy Enhancing Technologies.  University of Toronto.
May 26-28, 2004. Toronto, Canada.  For more information:

Access & Privacy Conference 2004: Sorting It Out.  Government Studies,
Faculty of Extension.  June 10-11, 2004.  University of Alberta.
Edmonton, Alberta, Canada.  For more information:

O'Reilly Open Source Convention.  July 26-30, 2004.  Portland, OR. For
more information: http://conferences.oreilly.com/oscon.

First Conference on Email and Anti-Spam.  American Association for
Artificial Intelligence and IEEE Technical Committee on Security and
Privacy.  July 30-31, 2004.  Mountain View, CA.  For more information:

Crypto 2004: The Twenty-Fourth Annual IACR Crypto Conference.
International Association for Cryptologic Research, IEEE Computer
Society Technical Committee on Security and Privacy, and the Computer
Science Department of the University of California, Santa Barbara.
Santa Barbara, CA. August 15-19, 2004.  For more information:

2004 Telecommunications Policy Research Conference.  National Center
for Technology & Law, George Mason University School of Law.  October
1-3, 2004.  Arlington, VA.  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,
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Thank you for your support.

---------------------- END EPIC Alert 11.03 ----------------------