EPIC logo

                           E P I C  A l e r t
Volume 13.05                                              March 10, 2006

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


Table of Contents
[1] Former DOJ Official Doubted Legal Basis For NSA Program
[2] DOJ Inspector General Reports on Possible Intelligence Violations
[3] Phone Records and Pretexting Capture Attention of Congress, States
[4] Patriot Act Renewed, Some Civil Liberties Safeguards Added
[5] Congress Presses for More Information on NSA Surveillance Program
[6] News in Brief
[7] EPIC Bookstore: Glenn Reynolds's "An Army of Davids"
[8] Upcoming Conferences and Events

[1] Former DOJ Official Doubted Legal Basis For NSA Program

Documents obtained by EPIC this week in a Freedom of Information Act
lawsuit against the Department of Justice reveal that a former top
official in the Justice Department was skeptical of the Bush
Administration's legal justification for its controversial warrantless
surveillance program.

Among the released documents was  a series of e-mails from former
Associate Deputy Attorney General David S. Kris. Kris -- now Chief
Ethics and Compliance Officer at Time Warner, Inc. -- provided his
former colleague a legal analysis concluding that the Authorization for
Use of Military Force Resolution likely did not authorize the
surveillance program.  He also said that the DOJ's statutory arguments
"had a slightly after-the-fact quality or feeling to them."

The DOJ refused to disclose much additional information related to its
secretive warrantless surveillance program. Most of the documents
released this week are previously published justifications for the
program and transcripts of television appearances by the Attorney

The documents disclosed by the DOJ this week cover only a small fraction
of the material at issue in the lawsuit. In legal papers filed the night
before the Justice Department's court-imposed deadline for releasing the
documents, the agency requested a delay of four months to complete is
processing of classified information related to the program.

The case arises from the New York Times' report in December that
President Bush secretly issued an executive order in 2002 authorizing
the National Security Agency to conduct warrantless surveillance of
international telephone and Internet communications on American soil.

EPIC submitted FOIA requests to four DOJ components just hours after the
warrantless surveillance program's existence was first reported. Noting
the extraordinary public interest in the program -- and its potential
illegality -- EPIC asked the agencies to expedite the processing of its
requests. The DOJ agreed that the requests deseved priority treatment,
but failed to comply with the FOIA's usual time limit of twenty working
days. The court's February 16 order found that delay to be unreasonable,
and ordered the Justice Department to disclose all responsive documents
by March 8, or to describe the information it sought to withhold and
provide legal justifications for non-disclosure.

"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."

EPIC's case has been consolidated with a lawsuit filed by the American
Civil Liberties Union and the National Security Archive concerning many
of the same documents.

DOJ's Motion Requesting More Time to Process Classified Material (pdf):


Judge Kennedy's Order (pdf):


More Information About EPIC's Case, EPIC v. Department of Justice:


[2] DOJ Inspector General Reports on Possible Intelligence Violations

In response to accounts of apparent intelligence violations uncovered by
EPIC last year, the Department of Justice Inspector General has examined
the FBI's procedures for reporting possible agent misconduct. The
findings were relayed in a semiannual report to Congress about civil
rights or civil liberties complaints made against Justice Department

According to the Inspector General, the FBI reported more than a hundred
instances of possible intelligence misconduct to the Intelligence
Oversight Board (IOB) in the past two years. The report says a number of
these matters were "significant," including one instance in which the
FBI collected the full content of 181 phone calls instead of just
billing and toll records. The Inspector General also found that possible
violations of the Foreign Intelligence Surveillance Act accounted for
nearly 70 percent of reports to the board in 2005, up from 48 percent in

The Inspector General's examination was sparked by a series of redacted
FBI reports to the board obtained last year by EPIC through Freedom of
Information Act litigation. The apparent intelligence violations
described in that material included improper e-mail collection,
eavesdropping on the wrong person's telephone calls, investigations
conducted for months without proper reporting or oversight, an FBI
agent's seizure of financial records in violation of federal privacy
law, and an unidentified intelligence agency's unlawful physical search.

Under an executive order, inspectors general and general counsel
throughout the intelligence community must inform the Intelligence
Oversight Board about "intelligence activities that they have reason to
believe may be unlawful or contrary to Executive order or Presidential
directive."  The board is required to forward to the Attorney General
reports of activities that it finds likely to have violated laws,
executive orders or directives.

In January, EPIC filed a Freedom of Information Act lawsuit against the
Department of Justice for all reports of apparent intelligence
misconduct made to the Intelligence Oversight Board since 9/11.  EPIC
also requested reports forwarded from the board to the Attorney General
and documentation of its responsive actions.  The Attorney General's
Office recently reported that it has no information responsive to EPIC's
request for documents.

Department of Justice Inspector General, Report to Congress on
Implementation of Section 1001 of the USA PATRIOT Act:


Executive Order 12863:


EPIC FOIA Note #9: Possible Patriot Act Abuses Released by FBI


EPIC FOIA Documents on Possible Intelligence Abuses (pdf):





[3] Phone Records and Pretexting Capture Attention of Congress, States

Federal and state lawmakers are focusing attention on protecting phone
and other customer records from pretexting. These new developments are a
result of a complaint and a petition EPIC filed with federal agencies
detailing how phone records are sold through "pretexting." Since filing
those documents, Congress, the Federal Communications Commission, the
Federal Trade Commission, and state attorneys general have all filed
subpoenas or brought lawsuits against pretexters.

The U.S. Senate and House Judiciary Committees approved legislation
establishing criminal penalties for obtaining phone records through
pretexting. In the House, the Judiciary Committee approved H.R. 4709,
the bi-partisan "Law Enforcement and Phone Privacy Protection Act of
2006." The legislation makes it a crime to acquire, purchase, or sell
telephone or VoIP records without the account holder's consent.
Violators are subject to fines and up to 20 years in jail. The Senate
Judiciary committee reported out the bi-partisan S. 2178, the "Consumer
Telephone Records Protection Act of 2006." The Senate legislation is
similar to the House version, but provides for less severe penalties.

In Illinois, the state Senate passed SB 2554. The Illinois bill differs
from other anti-fraud efforts in that it broadly prohibits all
pretexting by classifying it as an identity theft crime.  Specifically,
the measure prohibits the use of impersonation or pretexting to access
almost any type of personal information held by others, or to gain
access "to any record of the actions taken, communications made or
received, or other activities or transactions" of another. The measure
still needs to be approved by the State's lower House. Governor
Blagojevich has already announced his support for the privacy bill.

In Florida, S. 1488 is moving swiftly through committees of the state's
Senate. The bill would prohibit using false statements in order to
obtain phone records of another. In addition, Florida Attorney General
Crist has brought suit against Global Information Group for pretexting
phone records. In the complaint, it is alleged that Verizon Wireless
alone received over 5,100 calls from Global Information Group's
telephone number.

In California, the Assembly Public Safety Committee held a hearing on SB
202, a bill that would broadly prohibit the sale or purchase of phone
records. It is sponsored by Senator Joe Simitian (D-San Mateo), author
of the state's security breach notification law.  At the hearing,
Assembly members were receptive to the bill, and it received support
from several telecommunications companies. The Committee held the bill
in order to digest last-minute amendments, but is likely to advance the
legislation to the floor at its next meeting.

EPIC Illegal Access to Phone Records Page:
HR 4709, the Law Enforcement and Phone Privacy Protection Act of 2006:
S. 2178, the Consumer Telephone Records Protection Act of 2006:
Illinois Senate Bill 2554:
Florida Senate Bill 1488:


[4] Patriot Act Renewed, Some Civil Liberties Safeguards Added

On March 9, Prseident Bush signed a bill renewing the Patriot Act under
the terms of a Senate-approved compromise measure. The measure makes
permanent most of the provisions of the 2001 law, which was originally
slated to expire at the end of last year. Intense debate over the Act's
expansion of search and surveillance powers delayed Congressional
action, and lawmakers twice extended the deadline for the Act's
expiration in order to continue debate.

A handful of the most controversial aspects of the law were curbed in
its renewal. The government may no longer use "National Security
Letters" to obtain library loan records. The letters, which do not
require judicial oversight, require recipients to turn over information,
while preventing them from speaking about it. However, the new
legislation eliminates an earlier provision that required recipients to
notify the FBI of any attorney they have consulted regarding receipt of
the letter. The renewal also specifies that recipients of so-called
"Section 215 subpoenas," which are issued under the Foreign Intelligence
Surveillance Act, can challenge gag orders attached to these subpoenas
in court.

While the majority of the Patriot Act is now made permanent, two
particular provisions are left with expiration dates. One is the FBI's
power to conduct "roving wiretaps" that eavesdrop on a target's
communications across multiple phone numbers of email accounts. Another
is the government's power to seize business records under the Foreign
Intelligence Surveillance Act. Each of these provisions is now set to
expire at the end of 2009.

These limited safeguards, however, are still not enough in the eyes of
some legislators. Senate Judiciary Chairman Arlen Specter (R-PA),
Ranking Member Patrick Leahy (D-VT), and ten other senators have
introduced a bipartisan bill that would reinstate safeguards that had
been removed from the renewal act during debate. The safeguards include
increased judicial review of national security letters, requiring the
government to show a stronger connection to terrorism before searching
personal records, reducing the amount of time that the government can
conduct a search before notifying its target, and adding a 4-year
expiration date on the power to use National Security Letters.

EPIC's Patriot Act page:


The USA PATRIOT Improvement and Reauthorization Act of 2005:


S. 2369, Senate Bill Further Amending the Patriot Act:


[5] Congress Presses for More Information on NSA Surveillance Program

Members of Congress have continued to push for more information about
the Bush Administration's controversial warrantless surveillance

Last week, the Senate Judiciary Committee held its second hearing on the
operation, asking legal experts to weigh in on the legality of the
surveillance program. The hearing followed Attorney General Alberto
Gonzales' defense of the program last month, which he followed up with a
letter to the committee to "clarify" his testimony. Among other things,
the letter stated that the Administration's legal rationale for the
program "has evolved over time," and emphasized that his testimony did
not address "other classified intelligence activities." Senator Patrick
Leahy, the ranking Democrat on the committee, has demanded that the
Attorney General clarify his statements.

The committee's chair, Senator Arlen Specter, has also been an outspoken
critic of the Administration's failure to provide information about the
program. He has urged fellow members of Congress to press for a court
ruling on the legitimacy of the NSA's surveillance activities and impose
greater oversight over the program. This week, he also threatened to
move to block the Bush Administration's funding if Attorney General
Gonzales is not more forthcoming with details about the program.

The Senate Intelligence Committee has voted not to launch an inquiry
into the program, but has proposed legislation that would form a
subcommittee to oversee the NSA's surveillance activities. However, the
legislation would also permit the President to authorize warrantless
surveillance for up to 45 days in cases where the intercepted
communication involves someone suspected of being associated with
certain terrorist organizations and if at least one party to the
communication is on foreign soil.

The House Intelligence Committee has also pushed for additional
briefings so that they can consider making changes to the Foreign
Intelligence Surveillance Act.

Attorney General Alberto Gonzales' letter to the Senate Judiciary
Committee (pdf):


Press Release, "Leahy Presses Gonzales on Delayed 'Clarifications' to
His Testimony on Domestic Spying":


[6] News in Brief

Citibank Freezes Debit Cards After Major Fraud Action

An undisclosed but possibly large number of Citibank customers in
Canada, the UK, and Russia were recently left unable to use their ATM
cards. Initial inquiries by customers to the bank were met with little
information, though the company now says that an unspecified number of
fraudulent withdrawals had been detected. Other banks, including Wells
Fargo, Bank of America, and Washington Mutual, have reportedly taken
similar steps. Some reports have indicated that the breach may have
originated with data stolen from OfficeMax, though OfficeMax denies it
was aware of any security breach.

EPIC's Identity Theft Page:


Ireland Halts National ID Card Plan

Ireland will not introduce national ID cards in response to such cards
in Britain. Last year, the Minister for Justice said he reluctantly
accepted that Ireland might have to introduce identity cards when
Britain went ahead with its scheme. However, changes in the British
legislation mean that the new British ID cards will not affect Irish
citizens traveling between the two countries. After a protracted battle
between national ID card advocates and opponents, British MPs voted last
month to create the cards. However, further legislation will be needed
to make carrying the cards compulsory.

EPIC's National ID and REAL ID Cards page:


Intelligence Agencies Ordered to Halt Reclassification Program

The country's head archivist has demanded that intelligence agencies
stop reclassifying public documents held by the National Archives until
an investigation can be conducted into the practice.  The New York Times
reported last month that a group of intelligence agencies has
reclassified thousands of documents since 1999, including decades-old
reports from the State Department and historical documents that
researchers have photocopied and stored in their personal files.  Allen
Weinstein, Archivist of the United States, urged the intelligence
agencies to return as much reclassified material as possible to the
National Archives' shelves until the agency can complete its audit of
the program.

National Archives Press Release on Reclassification Hold:


National Archives Information on Declassification:


EPIC's Open Government Litigation Page:


Google Moves Search Records Out of China

Google recently announced that it was moving records of users' searches
outside of the borders of the People's Republic of China. The move is
intended to protect users from having records of their searches seized
by the Chinese government, which often enforces strict speech
restrictions on the Internet. Google and other technology companies
recently came under fire for censoring search results to accommodate
Chinese governmental policy. The removal of servers from China will not
affect the Google.cn search engine's filtered search results, but will
prevent the company from having to comply with orders to turn over
information resulting in the imprisonment of dissidents. Yahoo has been
widely criticized lately for its role in the imprisonment of dissidents
Shi Tao and Li Zhi.

EPIC's 2004 Privacy and Human Rights Report on China: 


U.S. State Department's 2005 Report on Human Rights in China:


Student Wins Open Government Suit, Gains Access to Email Lists

A high school student in Kokomo, Indiana, won an open government lawsuit
won a case against the city to obtain an email list that he thought the
mayor was misusing. The student, Ryan Nees, wanted to ensure that the
subscriber list for the city's e-newsletter wasn't being misappropriated
to send political spam on behalf of the mayor, Matt McKillip. The city
argued that while Nees should have access to the email addresses, he
should not be allowed to keep a copy, since a provision of Indiana's
open government laws limits the distribution of "addresses" in order to
protect residents' privacy.  The court held that "addresses" did not
cover email addresses, and that Nees should therefore be given a copy of
the list.

Court Order in Nees v. McKillip (pdf):


Indiana's Access to Public Records Act:


EPIC's Open Government Page:


European Advisory Body: Webmail Scanning Can Be Interception

The Article 29 Data Protection Working Party, an independent
consultative body affiliated with the European Commission, issued an
opinion stating that some email screening services may not comply with
European data protection legislation. In some cases, the group said,
filtering based on content may constitute an "unjustifiable interception
of communications." While EU laws allow email screening for viruses,
spam or other content filtering could abridge individuals' free speech
if it blocks legitimate emails from reaching their recipients. Scanning
the content of emails can also be a violation of data protection laws,
unless Internet service providers or email service providers must
adequately inform email software users of the blocking.

Working Party Opinion on Privacy Issues and Email Screening Services


Proposed New Jersey Ban on Anonymous Internet Speech

New Jersey Assemblyman Peter Biondi has proposed a bill that would
prohibit Internet users from posting content anonymously.  The bill
requires Internet service providers and providers of "interactive
computer services" to collect a legal name and address from anyone who
posts information on the Internet through their sites. The law also
requires service providers to have procedures in place to disclose a
user's name and address if the user posts "false or defamatory
information" on a website. The bill draws no distinction between
defamation and information that is merely untrue, nor does it account
for the First Amendment right to anonymous free speech, as outlined by
the U.S. Supreme Court and New Jersey appeals courts.

Text of the New Jersey Bill Banning Online Anonymous Speech:


EPIC's Page on Free Speech:


EPIC's Page on Watchtower Bible v. Stratton (U.S. Supreme Court Case on
Anonymous Speech):


Post Office Sends More Junk than Regular Mail 

The United States Postal Service now delivers more junk than regular
mail. In 2005, the volume of "Standard Mail" exceeded that of First
Class, Priority, and Express Mail. Over 100 billion pieces of junk mail
were delivered, while the later categories accounted for 99 billion mail
pieces.  Junk mail, while weighing almost twice as much as regular mail,
raised only $19 billion in revenue while regular mail raised $41
billion. As a result of increasing junk mail volumes and fraud committed
through sweepstakes, legislators from Missouri, Illinois, and New York
have introduced Do-Not-Mail legislation. These bills are modeled on the
highly successful Do-Not-Call Registry, which also began in state
legislatures. But the legislation faces many opponents. In addition to
direct marketers, Do-Not-Mail is disfavored by many who profit from junk
mail, including advertisers, printers, news media organizations, letter
carriers, and the Postal Service itself.
USPS Annual Report:
EPIC Postal Privacy Page:

[7] EPIC Bookstore: Glenn Reynolds's "An Army of Davids"

Glenn Reynolds. "An Army of Davids: How Markets and Technology Empower
Ordinary People to Beat Big Media, Big Government, and Other Goliaths"
(Nelson Current, 2006).


At last count, there were an estimated 30.2 million blogs. Many of these
web sites begin and end with vacation photos or an excellent recipe for
chile rellenos. But a few blogs establish followings that are comparable
to small town newspapers or a popular talk show radio stations. These
followings evolve from simple lists of subscribers into communities and
even political movements.

Glenn Reynolds is one of the celebrity bloggers whose web site
instapundit.com typically ranks up near the top of blog rankings, as
measured by Technorati and others.

Reynolds's book, which is only partialy about the blog phenomenon,
reveals many of the tricks of the political blogger -- well respected
personal hobbies (brewing beer, producing CDs), quirky political views
(put more guns on planes), commitment to futurism (ideas on terraforming
Mars), and a general optimism about the ability of technology to level
the playing field, eliminate the dinosaurs, and solve world problems.

There is much in the book to debate. But that is, after all, also the
material of a good political blog.

---Marc Rotenberg


EPIC Publications:

"Information Privacy Law: Cases and Materials, Secod Edition" Daniel J.
Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price: $98.

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:

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


"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:

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


"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:

[8] Upcoming Conferences and Events

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

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:

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:

Third International Conference on Security in Pervasive Computing.
University of York. April 19-20, 2006. York, United Kingdom. For more

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 more

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

Infosecurity New York. Reed Exhibitions. September 12-14, 2006. New
York, New York. 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. +1 202
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:


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 13.05 -------------------------