EPIC logo

                              E P I C  A l e r t
Volume 15.17                                            August 25, 2008

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


Table of Contents
[1] Watch List Decisions Are Subject to Court Review
[2] EPIC Demands Accuracy for Employment Eligibility Database
[3] Privacy 08 Campaign Underway
[4] APEC Data Privacy Group Meets in Lima, Peru
[5] ACTION ITEM: Signon - Civil Society Seoul Declaration
[6] News in Brief
[7] EPIC Bookstore: “Born Digital"
[8] Upcoming Conferences and Events
	- Subscription Information
	- Privacy Policy
	- About EPIC
	- Donate to EPIC http://www.epic.org/donate
	- Support Privacy '08 http://www.privacy08.org

[1] Watch List Decisions Are Subject to Court Review

On August 18, 2008, a federal court ruled that airline passengers who
are on no-fly lists can sue to clear their names. In Ibrahim v. Dep't of
Homeland Security, the Ninth Circuit Court of Appeals held that federal
trial courts can hear complaints from individuals who are named on the
government's air travel watch lists. The ruling states that trial courts
are the proper venues for such challenges, because the lists are
maintained by the Terrorist Screening Center, a federal entity separate
from the Transportation Security Administration (TSA). Federal trial
courts cannot hear challenges to TSA orders. The decision promises to
increase judicial oversight of the "no-fly list" and other federal
aviation watch lists.

At least one lawsuit followed swiftly on the heels of the Ibrahim
decision. Erich Scherfen, a commercial pilot and Gulf War veteran, has
filed a complaint in Pennsylvania federal court challenging his
inclusion on a government watch list. Scherfen wants a judge to order
his name removed from the list, and alleges that time is of the essence
- his employer suspended him based on his inclusion on the list.
Scherfen further argues that he attempted to rectify the situation
through the Dep't. of Homeland Security's suggested procedure, but was
stymied by the agency's unwillingness to delete his name, or even
acknowledge that his name appears on a watch list.

Air travel watch lists include at least 400,000 names, and can prevent
flyers from boarding planes. Several high-profile cases have highlighted
watch list inaccuracies, including errors involving Senator Edward
Kennedy, military veterans, and former high-ranking federal officials.
The watch lists are filled with incorrect data and generate many false
positives, but adverse determinations are virtually impossible to
challenge. Homeland Security Secretary Michael Chertoff has objected to
court oversight, but refuses to disclose the details behind the lists.

EPIC previously documented numerous errors and complaints regarding air
travel watch lists. EPIC obtained more than a hundred complaints filed
by irate passengers who felt they had been incorrectly identified for
additional security or were denied boarding. The complaints describe the
bureaucratic maze passengers find themselves in if they happen to be
mistaken for individuals on the lists. In one case, the federal
government directed an aggrieved passenger to contact the airline. In
another case, an airline directed a passenger to contact the federal
government. The litany of problems is long, but all point to a lack of
transparency and due process in the operation of the watch lists.

The government administers three lists: a "terror watch list," a
"selectee" list, and a "no fly" list. The "selectee" list requires
passengers to go through additional security measures. The "no fly" list
prohibits passengers from flying altogether. The names are provided to
air carriers through Security Directives or Emergency Amendments and are
stored in their computer systems so that an individual with a name that
matches the list can be flagged when getting a boarding pass. A "no fly"
match requires the agent to call a law enforcement officer to detain and
question the passenger. In the case of a Selectee, an "S" or special
mark is printed on their boarding pass and the person receives
additional screening at security. Federal officials have refused to
describe selection criteria in detail, and have failed to implement open
and transparent procedures for correcting watch list errors.

Ninth Circuit Ruling in Ibrahim v. Dep't. of Homeland Security:

EPIC's "Air Travel Privacy" page:

EPIC's Analysis of Watchlist Errors and Complaints:

EPIC, "Travelers Continue to Struggle With Wrongful Watch List Matches"

[2] EPIC Demands Accuracy for Employment Eligibility Database

EPIC argued for privacy protections for federal contractor employees in
August 11 comments to a proposed rule issued by the General Services
Administration (GSA). The proposed rule would change the Federal
Acquisition Regulations (FAR) -- which govern federal contracts -- to
require that certain contractors be mandated to use the E-Verify system.
The E-Verify system is a web-based service run by the Department of
Homeland Security and the Social Security Administration that compares
worker's information to several government databases. EPIC recommended
fixing database errors, applying Privacy Act protections, and exempting
current employees before implementing the rule.

The proposed rule is implementing a Bush administration executive order
creating these mandates for Federal contractors following earlier failed
attempts to mandate verification. Congress last year considered but
rejected mandating verification nationwide. A court in California
stopped a DHS administrative initiative requiring employers to fire
employees for which they received "no match" letters.

Contractors will have to process all of their new hires as well as
current employees directly working on contracts via the E-Verify system.
The rule is expected to cover nearly 170 thousand contractors leading to
the processing of 3.8 million workers. Contracts which include work in
the United States, are greater than 3000 dollars, and are not for
commercially available off the shelf items are covered. An expansion of
E-Verify has severe implications for national and individual security,
civil liberties and privacy. The Government Accountability Office has
detailed several problems associated with implementing mandatory
employment verification.

EPIC recommended fixing database errors. Independent studies have found
that up to 42% of negative responses, termed "non-confirmations," are
erroneous. The Social Security Inspector General estimates that 17
million records in its databases have errors.  Further, some of the
systems that E-Verify checks are exempt from Privacy Act
protections. The Treasury Enforcement Communications System (TECS) is
exempt from requirements that citizens be able to access their data,
correct their data, and that data be kept reliably.  EPIC recommended
that these exemptions be lifted before expanding E-Verify.  Further,
EPIC recommended exempting current employees from the mandate, as the
E-Verify system is based on law covering hiring and recruiting, not
retaining employees.

EPIC Comments:

E-Verify Proposed Rule:

Executive Order 12989:

EPIC Spotlight on Surveillance - Electronic Employment Verification:

[3] Privacy 08 Campaign Underway

With the Presidential Conventions beginning this week, EPIC has
launched the Privacy 08 Campaign, a nonpartisan effort to promote
privacy discussions during the the 2008 Presidential campaign.

Voters of the 21st Century are experiencing a revolution in the way they
engage and are engaged by the electoral process. Election officials are
using the Internet as a tool to enhance the information services
provided to voters. Campaigns are using the Internet as a more efficient
means of targeting voters for messaging and solicitation of financial
support.  And for the first time, individual voters and advocacy
organizations are empowered by the Internet to speak directly to the
electorate, candidates, and policymakers through their own messaging.
Because the Internet bypasses traditional media outlets like television,
radio, and newspapers, the ability to present issues in context is an
additional benefit. Web blogs, instant messaging, e-mail, YouTube, and
web publishing are just a few of the ways the American electoral
experience has changed from just 4 years ago.

Privacy 08’s Facebook page provides a platform for providing consumer
advocacy views on key privacy issues such as domestic surveillance,
employment verification, citizen dossiers, secret databases, identity
theft, health information technology, micro targeting, and Social

Facebook is featured because it offers a platform that is easy to find
and allows collaboration among participants. EPIC has noted the
challenges faced by Facebook users regarding the privacy of information
they share, while not recommending suspension of use of the web
resource.  This technology is proving to be of utility to millions of
Internet users, which means that the privacy ramifications must be
addressed in a concrete way.

The 2008 Presidential candidates -- Former Congressman Bob Barr, Senator
McCain, Ralph Nader, and Senator Obama -- have made several statements
about privacy, though perhaps not as much as had been hoped. Key concerns
about the future of the Patriot Act, the power of Homeland Security, and
the need to create meaningful privacy for Internet users have yet to be
addressed. Learn more about where the candidates stand. Visit their issue
pages, search for privacy, and compare their positions. Then vote!

Privacy 08 Facebook:

Democratic National Convention, August 25-28, 2008:
Republican National Convention, September 1-4, 2008:

Bob Barr, "Barr Blasts McCain, Obama for Supporting National ID, Again
Urges Congress to Repeal Real ID Act" (August 1, 2008):
Bob Barr, "Federal Government Must Respect Americans’ Civil Liberties
and Privacy" (July 31, 2008):
Bob Barr, "Privacy and Surveillance":
John McCain, "Ensuring the Personal Security and Privacy of
Americans in the Digital Age" (August 14, 2008):

Ralph Nader, "Civil Liberties:"
Barack Obama, "Safeguard Our Right to Privacy:"

[4] APEC Data Privacy Group Meets in Lima, Peru

On August 12 & 13, the Peruvian Economy of the Asia Pacific Economic
Cooperation (APEC) Forum hosted the Second Technical Assistance Seminar
on the International  Implementation of the APEC Privacy Framework 2008
“Data Privacy in APEC: Enhancing privacy in global transactions," to
coincide with the APEC Data Privacy Sub-Group meeting and the 18th APEC
Electronic Commerce Steering Group held in Lima, Peru on August 14-16.

The workshops brought together APEC member economies to discuss the
practical mechanisms for the international implementation of the APEC
Privacy Framework, including the Data Privacy Pathfinder projects.

China and Singapore both endorsed the Data Privacy Pathfinder and China
indicated it will participate in the testing phase of the Pathfinder.
Furthermore, 16 economies are now participating in the Pathfinder
Project and six  economies have developed  or are considering developing
domestic frameworks that refer to the APEC Privacy Framework: Australia,
Canada, New Zealand, Philippines, Vietnam, and Korea. It will be very
important for civil society to assess whether these proposals weaken the
existing level of privacy protection.

In another note, the APECs Electronic Commerce Study Group (ECSG) agreed
to grant ad hoc membership for Privacy International and the Electronic
Privacy Information Center (EPIC), with each organization to apply
for guest status before each meeting.  This position was adopted with
the understanding that it will be revisited after an assessment of the
arrangement´s long-term viability. This opportunity will give an
independent consumer voice to try to balance those of business

APEC Technical Assistance Seminar website (including presentations):

APEC Data Privacy Sub Group of the Electronic Commerce Steering Group:

Implementation of the APEC Privacy Framework: Global Privacy Solutions
for Cross Border Data Transfers:

APEC Data Privacy Pathfinder:	

The Public Voice Project:

Privacy Law Sourcebook 2004:

[5] ACTION ITEM: Signon - Civil Society Seoul Declaration

A diverse group of civil society organizations and individuals from the
Public Voice Coalition worked on a joint Civil Society Declaration to
the OECD 2008 Ministerial Meeting on the Future of the Internet Economy,
which took place in Seoul on June 2008. This document raises a number of
issues of major importance to the civil society community and makes a
number of recommendations to move us towards the future of the Internet
that meets the essential needs of all the world's citizens. We urge all
Internet users and potential Internet users to support the Civil Society
Seoul Declaration as this document will be submitted as a "room
document" in the next OECD Committee for Information, Computer and
Communications Policy (ICCP) meeting on 11-12 December 2008. We would
like to keep pushing for the implementation of the Civil Society Seoul
Declaration within the OECD ICCP work.

The declaration is open for sign on by civil society organizations and
individuals until October 10, 2008 (Human Rights Day). The declaration
has been signed by (so far) 86 organizations and 99 individuals. See the
list of signatories at:

ACTION - Sign the Declaration here:

OECD Civil Society Forum in Seoul and The Civil Society Seoul
Declaration in different languages:

Facebook: The Public Voice Group:

[6] News in Brief

ICANN: Privacy enhancing registration of WHOIS Services

On June 18, 2008, the Internet Corporation for Assigned Names and
Numbers (ICANN) published draft proposed changes to the Registrar
Accreditation Agreement (RAA) in order to endorse privacy and data
protection enhancing registration services. This amendment helps
protect the personal data of the TLD registrants that is stored in the
WHOIS Database. The ICANN Board of Directors passed a resolution in
San Juan to solicit community input related to RAA amendments and open
the call for  public comment until August 4, 2008. On August 1, the US
Department of Commerce criticized the proposed language arguing that
ICANN should study the legitimate uses of WHOIS data and that those
changes are contrary of what was suggested by the Government Advisory
Committee (GAC).

The WHOIS database, originally intended to allow network administrators
to find and fix problems with minimal hassle to maintain the stability
of the Internet, now exposes domain name registrants' personal data to
spammers, stalkers, criminal investigators, and copyright enforcers.
Proxy and privacy services could help protect individuals from the
indiscriminate use of their personal information available openly in the
WHOIS online database.

Draft Proposed Changes to Registrar Accreditation Agreement:

US Department of Commerce Comments on the Draft proposed Changes to RAA:

IGP: The US Government Tugs the Reins on ICANN, Again:

EPIC page on WHOIS:

Warrantless Wiretapping Case Returns to Trial Court

A lawsuit challenging AT&T's participation in President Bush's
warrantless wiretapping program was sent back to trial court. The
lawsuit, Hepting v. AT&T, arises from the government's surveillance of
Americans' telephone and Internet communications in apparent violation
of the Constitution and federal privacy laws. Telecom companies,
including AT&T, helped the government spy on Americans, despite the
absence of court authorization. Federal officials kept the wiretapping
scheme secret for some time. The New York Times first made the spy
plan's existence public in December 2005. The next month, Hepting, a
class-action case, was brought on behalf of multiple individuals.

The trial court will apply newly passed federal law to the case.
Recently, Congress amended the Foreign Intelligence Surveillance Act,
the law that governs domestic wiretaps. The new law provides immunity
for corporations' participation in the governments' warrantless
wiretapping activities if certain conditions are met. In 2007, EPIC
filed a "friend-of-the-court" brief in collaboration with the Stanford
Constitutional Law Center, supporting judicial review of the domestic
spy program.

Appeals Court Decision Returning Hepting v. AT&T to Trial Court:

EPIC's Hepting v. AT&T Page:

Internet Corporations Reveal Snooping Plans, Identify Privacy Threats

In response to a request from senior members of Congress, 33 internet
companies have detailed how they spy on users' behavior. The statements
respond to inquiries from lawmakers regarding companies' efforts to
monitor their customers generally, as well as the corporations' specific
practices regarding particular behavioral advertising techniques that
impinge on consumer privacy and may run afoul of federal law. The
documents describe a variety of surveillance techniques, ranging from
internet service providers capturing users' full browsing activities to
search engines creating detailed records of web surfers' online
behavior. EPIC has identified substantial threats to consumers' privacy
that arise from these programs.

The disclosures come at a time of heightened scrutiny for companies that
spy on their users' online habits. Congressmen recently criticized
Charter Communications' plan to perform Deep Packet Inspection (DPI) of
its customers' internet traffic, challenging its legality under the
federal Wiretap Act and the Cable Television Privacy Act. Charter
subsequently dropped the plan. In July, another internet service
provider, Embarq, shut down its partnership with NebuAd, a DPI
technology provider, after lawmakers raised similar criticisms.

33 Companies Detail Their Monitoring Practices:

EPIC's Search Engine Privacy Page:

Microsoft May Introduce New Privacy Tools

Records obtained from the US Patent and Trademark office suggest that
Microsoft may introduce new privacy features in the next version of
Internet Explorer. According to the patent application, Cleartracks
are "computer programs for accessing and using the Internet and the
World Wide Web, and computer programs for deleting search history after
accessing Web sites." A second service, dubbed InPrivate, involves "computer
programs for disabling the history of file caching features of a Web browser,
and computer software for notifying a user of a Web browser when others
are tracking Web use and for controlling the information others can
access about such use."

Although privacy remains a key concern for the design of browser software,
major Internet firms have had little success so far with strong privacy
tools. Microsoft's orginal platform for privacy was P3P; there are many
privacy and security add-ons for Firefox, but the defaults are not privacy
friendly and Google discourages the use of the most popular privacy tools
for Firefox.

Microsoft, IE8 and Trustworthy Browsing:

Internet Explorer8 Beta:

Virginia Court Finds Free Speech Rights in Publication of SSN

A federal judge upheld the right of a privacy advocate to post the
Social Security Numbers, obtained from public records, of prominent people
and court officials to demonstrate that the state of Virginia failed
to protect privacy. Judge Robert Payne, in strking down the state law that
limits the publication of the SSN, wrote "It is difficult to imagine a more
archetypal instance of the press informing the public of government
operations through government records than Ostergren's posting of public
records to demonstrate the lack of care being taken by the government to
protect the private information of individuals."

Ostergren v. McDonnell, No. 3:2008cv00362 (Va. E.D. August 22, 2008)


[7] EPIC Bookstore: “Born Digital"

"Born Digital: Understanding the First Generation of Digital Natives,"
by John Palfrey and Urs Gasser


[From the publisher]

"The most enduring change wrought by the digital revolution is neither
the new business models nor the new search algorithms, but rather the
massive generation gap between those who were born digital and those who
were not. The first generation of “digital natives”-children who were
born into and raised in the digital world-is now coming of age, and soon
our world will be reshaped in their image. Our economy, our cultural
life, even the shape of our family life will be forever transformed. But
who are these digital natives? How are they different from older
generations, and what is the world they’re creating going to look like?
In Born Digital, leading Internet and technology experts John Palfrey
and Urs Gasser offer a sociological portrait of this exotic tribe of
young people who can seem, even to those merely a generation older, both
extraordinarily sophisticated and strangely narrow. Based on original
research and advancing new theories, Born Digital explores a broad range
of issues, from the highly philosophical to the purely practical: What
does identity mean for young people who have dozens of online profiles
and avatars? Should we worry about privacy issues? Or is privacy even a
relevant value for digital natives? How does the concept of safety
translate into an increasingly virtual world? Is “stranger-danger” a
real problem, or a red herring? A smart, practical guide to a brave new
world and its complex inhabitants, Born Digital will be essential
reading for parents, teachers, and the myriad of confused adults who
want to understand the digital present-and shape the digital future."


EPIC Publications:

"Information Privacy Law: Cases and Materials, Second 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, spyware, 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 2006: An International Survey of Privacy Laws
and Developments" (EPIC 2007). Price: $75.


This annual report by EPIC and Privacy International provides an
overview of key privacy topics and reviews the state of privacy in over
75 countries around the world. The report outlines legal protections,
new challenges, and important issues and events relating to privacy.
Privacy & Human Rights 2006 is the most comprehensive report on privacy
and data protection ever published.


"FOIA 2006: Litigation Under the Federal Open Government Laws," Harry A.
Hammitt, Marc Rotenberg, Melissa Ngo, and Mark S. Zaid, editors (EPIC
2007). Price: $50.


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 23nd 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


"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

Privacy Awareness Week. August 24, 2008. Australia, New Zealand,
Hong Kong, Korea and Canada. For more information:

The Third International Conference on Legal, Security and Privacy
Issues in IT. September 3-5, Prague, Czech Republic

Youth Privacy Online: Take Control, Make It Your Choice! September
4, 2008, Eaton Centre Marriott, Toronto. For more information:

Access to Information: Twenty-five Years on. September 8, 2008,
Minto Suites Hotel, Ottowa. For more information:

The third annual Access to Knowledge Conference (A2K3).  September
8-10, 2008, Geneva, Switzerland http://isp.law.yale.edu/

High Level Expert Conference: Towards a European Policy on RFID.
September 9, 2008, Brussels, Belgium

Workshop on Applications of Private and Anonymous Communications.
September 22, 2008. Istanbul, Turkey. For more information:

World Summit on the Knowledge Society. September 24-28, 2008,
Athens, Greece http://www.open-knowledge-society.org/summit.htm

Telecommunications Polucy Roundtable. September 26-28, 2008,
George Mason University School of Law, Arlington, Virginia.

Europe-wide action day "Freedom not fear." October 11, 2008.
Multiple sites. For more information:

International Symposium on Data Protecion in Social Networks.
October 13, 2008, Strasbourg. For more information:

30th International Data Protection and Privacy Conference:
Protecting Privacy in a Borderless World. October 15-17, 2008,
Strasbourg. For more information:

European Dialogue on Internet Governance (EuroDIG).  October 20-21,
2008, Strasbourg, France http://www.eurodig.org/

Privacy in Social Network Sites Conference October 23-24, 2008.
Delft University of Technology, Faculty of TPM, The Netherlands. For
more information: http://www.ethicsandtechnology.eu

Third Internet Governance Forum. December 3-6, 2008. Hyderabad,
India. For more information: http://www.intgovforum.org

Tilting perspectives on regulating technologies, Tilburg Institute
for Law and Technology, and Society, Tilburg University.  December
10-11, Tilburg, Netherlands

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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).

Donate to EPIC

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,
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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.

Support Privacy '08

If you would like more information on Privacy '08, go online and search
for "Privacy 08". You'll find a Privacy08 Cause at Facebook, Privacy08
at Twitter, a Privacy08 Channel on YouTube to come soon, and much more.
You can also order caps and t-shirts at CafePress Privacy08.

Start a discussion. Hold a meeting. Be creative. Spread the word. You
can donate online at epic.org. Support the campaign.

Facebook Cause:






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