============================================================= @@@@ @@@@ @@@ @@@@ @ @ @@@@ @@@@ @@@@@ @ @ @ @ @ @ @ @ @ @ @ @ @@@@ @@@ @ @ @@@@@ @ @@@ @@@ @ @ @ @ @ @ @ @ @ @ @ @ @@@@ @ @@@ @@@@ @ @ @@@@ @@@@ @ @ @ ============================================================ Volume 2.01 January 18, 1995 ------------------------------------------------------------ Published by the Electronic Privacy Information Center (EPIC) Washington, DC info@epic.org ======================================================================= Table of Contents ======================================================================= [1] Nader Speaks to Privacy Advocates [2] European Privacy Directive Moves Forward [3] EPIC Calls for Congressional FOIA [4] New DOJ Guidelines on Computer Search and Seizure [5] Court Dismisses LaMacchia Case [6] IRS Initiates New Database System [7] EPIC WWW Page and Digicash Donations [8] Upcoming Conferences and Events ======================================================================= [1] Nader Speaks to Privacy Advocates ======================================================================= Consumer advocate Ralph Nader urged privacy activists and academics to put a "hard edge on the privacy movement" at a meeting sponsored by the Electronic Privacy Information Center and the Privacy Journal in Washington, DC in mid-January. The conference brought together more than thirty leading privacy experts and advocates from across the country. The group discussed prospects for privacy reform in the new Congress and efforts to support local and international privacy initiatives. Mr. Nader, who thirty years ago won a landmark privacy case against General Motors, said it was time to "name names" and present the "rogues gallery" of privacy violators. He noted that greatest privacy invaders are "super private." "They know everything about you, and you have no idea who they are." Mr. Nader said that privacy advocates need to hold government and corporate privacy violators accountable. "Invasions of privacy are a system of control that must be challenged," said Mr. Nader. The group also heard from Hill staffpeople, members of the Administration and other about prospects for privacy reform. Among the issues discussed were medical record privacy, privacy protection for the information infrastructure, Intelligent Transportation Systems, and consumer privacy. The group agreed to take specific action to oppose the $500 million appropriation for the FBI wiretap bill, to support efforts to improve medical record privacy, and to work together on privacy efforts around the country. ======================================================================= [2] European Privacy Directive Moves Forward ======================================================================= The Council of Ministers of the European Community have adopted a common position on the European data protection directive. As a result, the directive will now go to the European Parliament for a second reading. The directive is considered to be on a fast track for adoption. The directive is significant for European privacy because it will require changes in existing privacy laws and necessitate the adoption of privacy safeguards in the remaining European countries that do not yet have legislation. According to Professor Joel Reidenberg of Fordham Law School, "The common position takes a stronger position on data protection than existing national laws. There are also important implications for the United States. The directive will result in greater scrutiny of countries without a data protection commission and without adequate legislative protections." ======================================================================= [3] EPIC Calls for Congressional FOIA ======================================================================= The Electronic Privacy Information Center (EPIC) on January 11 wrote to Speaker of the House Newt Gingrich asking him to include the Freedom of Information Act (FOIA) in the Congressional Accountability Act, legislation that will make several statutes applicable to Congress itself. EPIC congratulated Speaker Gingrich on the introduction of the THOMAS on-line information system but expressed surprise at the omission of the FOIA from the list of statutes that will now be applied to Congress. The letter stated "While the initiation of THOMAS will contribute significantly to the public's understanding of Congressional activities, we believe that an equally important innovation would be to bring Congressional records within the coverage of the Freedom of Information Act (FOIA) EPIC Director Marc Rotenberg noted: "FOIA is essential to ensure that government is truly accountable. The FOIA encourages informed debate on national issues and effective participation in the political process." The Freedom of Information Act allows ordinary citizens and the media to request specific documents from federal agencies to oversee the workings of government. Agencies must release the information unless it falls within a few narrow exceptions. EPIC has used the FOIA to obtain critical documents on the Clipper Chip, the Digital Telephony proposal and other documents relevant to electronic privacy issues. A copy of EPIC's letter to Rep. Gingrich is available at cpsr.org /cpsr/privacy/epic/epic_gingrich_foia.txt ======================================================================= [4] New DOJ Guidelines on Computer Search and Seizure Guidelines ======================================================================= The Electronic Privacy Information Center (EPIC) has obtained the Department of Justice's recently issued "Federal Guidelines for Searching and Seizing Computers." The guidelines provide an overview of the law surrounding searches, seizures and uses of computer systems and electronic information in criminal and civil cases. They discuss current law and suggest how it may apply to situations involving computers. The guidelines were developed by the Justice Department's Computer Crime Division and an informal group of federal agencies known as the Computer Search and Seizure Working Group. Areas covered include encryption (where the guidelines suggest that the government must provide limited immunity before requiring a suspect to disclose a key), the Privacy Protection Act of 1980 (which the guidelines suggest that all investigators review before seizing a BBS) and the use of experts during searches and seizures. The guidelines also review standards for using electronic evidence in court and the Electronic Communications Privacy Act of 1986. A more comprehensive analysis is available from EPIC at cpsr.org /cpsr/privacy/epic/guidelines_analysis.txt. EPIC, with the cooperation of the Bureau of National Affairs, is making the guidelines available electronically. The document is available via FTP/Gopher/WAIS/listserv from the EPIC online archive at cpsr.org /cpsr/privacy/epic/fed_computer_siezure_guidelines.txt. A printed version appears in the Bureau of National Affairs publication, Criminal Law Reporter, Vol. 56, No. 12 (December 21 1994). ======================================================================= [5] Court Dismisses LaMacchia Case ======================================================================= On December 28, 1994, the U.S. District Court for the District of Massachusetts dismissed the case against MIT Student David LaMacchia for illegally distributing copyrighted software over the Internet. The court found that there was no criminal act punishable under the general wire fraud statues because Congress has declined to extend the criminal penalties to the free distribution of copyrighted software. The case was brought under the wire fraud statute because Congress has limited the criminal penalties under Copyright Act to acts which are "willful and for purpose of commercial advantage or private financial gain." 17 U.S.C. Sec. 506(a). The court rejected the prosecutors' arguments that the wire fraud act should apply, ruling that in the area of copyrights, Congress has declined to enact criminal penalties for the acts such as those of LaMacchia: What the government is seeking to do is to punish conduct that reasonable people might agree deserves the sanctions of the criminal law. But as Justice Blackmun observed in Dowling, copyright is an area in which Congress has chosen to tread cautiously, relying "chiefly . . . on an array of civil remedies to provide copyright holders protection against infringement," while mandating "studiously graded penalties" in those instances where Congress has concluded that the deterrent effect of criminal sanctions are required. The court worried that extending the general provisions would have untold effects on computer users everywhere: While the government's objective is a laudable one, particularly when the facts alleged in this case are considered, its interpretation of the wire fraud statute would serve to criminalize the conduct of not only persons like LaMacchia, but also the myriad of home computer users who succumb to the temptation to copy even a single software program for private use. It is not clear that making criminals of a large number of consumers of computer software is a result that even the software industry would consider desirable. Finally, the judge suggests that the law should be changed to criminalize these activities: This is not, of course, to suggest that there is anything edifying about what LaMacchia is alleged to have done. If the indictment is to be believed, one might at best describe his actions as heedlessly irresponsible. and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values. Criminal as well as civil penalties should probably attach to willful, multiple infringements of copyrighted software even absent a commercial motive on the part of the infringer. One can envision ways that the copyright law could be modified to permit such prosecution. But, "'[i]t is the legislature, not the Court which is to define a crime, and ordain its punishment. EPIC will be monitoring any attempts to modify the copyright law. A copy of the opinion is available from cpsr.org /cpsr/computer_crime/ us_v_lamacchia_decision.txt ======================================================================= [6] IRS Initiates Massive New Database ======================================================================= On December 20, the Internal Revenue Service announced in the Federal Register that it was planning a new database to monitor compliance of taxpayers in a project entitled Compliance 2000. The database would contain information on all individuals in the U.S. who conduct certain financial transactions and would be segmented by different criteria: Any individual who has business and/or financial activities. These may be grouped by industry, occupation, or financial transactions, included in commercial databases, or in information provided by state and local licensing agencies. The new database will combine private and public sector databases in a single searchable entity. A number of federal financial databases from the IRS will be enhanced with state, local and commercial sources. The Federal Register notice describes the non-tax databases: Examples of other information would include data from commercial databases, any state's Department of Motor Vehicles (DMV), credit bureaus, state and local real estate records, commercial publications, newspapers, airplane and pilot information, U.S. Coast Guard vessel registration information, any state's Department of Natural Resources information, as well as other state and local records. In addition, Federal government databases may also be accessed, such as, federal employment files, federal licensing data, etc. Finally, even though the proposed system would use frequently inaccurate "commercial databases" such as direct marketing records, taxpayers would not be able to review their records to ensure that they are accurate and up to date: "This system is exempt from the access and contest provisions of the Privacy Act." EPIC is filing comments asking the IRS to reconsider its use of commercial databases and to ensure that there are greater safeguards on the collection and use of personal information. A copy of the Federal Register notice is available at cpsr.org /cpsr/privacy/epic/IRS_compliance_2000_notice_txt Comments on the proposed system must be received by January 19, 1995, and sent to Office of Disclosure, Internal Revenue Service, 1111 Conn. Ave, NW, Washington, DC 20224. EPIC's Comments are available at cpsr.org /cpsr/privacy/epic/epic_irs_compliance_2000_comments.txt ======================================================================= [7] EPIC WWW Page and Digicash Donations ======================================================================= EPIC has set up a temporary World Wide Web page to enhance individuals' access to its materials on privacy. The Web page includes information such as the EPIC program and FAQ, material on current issues of interest (including Clipper and the Digital Telephony proposal) and HTML access to the current EPIC Alert. EPIC will be announcing a permanent EPIC WWW, Gopher and FTP site in the near future. The Web page is set up in conjunction with Digicash, a Netherlands- based company that specializes in cryptography and anonymous transactions. The address is http://epic.digicash.com/epic Individuals who are participating in testing Digicash's anonymous online cash system can contribute to EPIC's work in support of civil liberties. Digicash, after the testing period, will be announcing a formal system of convertible money so individuals will be able to donate actual money to EPIC. More information on the system is available from http://www.digicash.nl. ======================================================================= [8] Upcoming Privacy Related Conferences and Events ======================================================================= Privacy, The Information Infrastructure and Healthcare Reform. Ohio State University, Columbus, OH, Jan. 27. Contact: vberdaye@magnus.acs.ohio-state.edu. Cryptography: Technology, Law and Economics. New York City. Mar. 3, 1995. Sponsored by CITI, Columbia University. Contact: citi@research.gsb.columbia.edu Towards an Electronic Patient Record '95. Orlando, FL. Mar. 14-19, 1995. Sponsored by Medical Records Institute. Contact: 617-964-3926 (fax). Access, Privacy, and Commercialism: When States Gather Personal Information. College of William and Mary, Williamsburg, VA, March 17. Contact: Trotter Hardy 804 221-3826. Computers, Freedom and Privacy '95. Palo Alto, Ca. Mar. 28-31, 1995. Sponsored by ACM. Contact: cfp95@forsythe.stanford.edu. ETHICOMP95: An international conference on the ethical issues of using Information Technology. DeMontfort University, Leicester, ENGLAND, March 28-30, 1995. Contact: Simon Rogerson srog@dmu.ac.uk 44 533 577475 (phone) 44 533 541891 (Fax). National Net '95: Reaching Everyone. Washington, DC. Apr. 5-7, 1995. Sponsored by EDUCOM. Contact: net95@educom.edu or call 202/872-4200. Information Security and Privacy in the Public Sector. Herdon, VA. Apr. 19-20, 1995. Sponsored by AIC Conferences. Contact: 212/952-1899. 1995 IEEE Symposium on Security and Privacy. Oakland, CA, May 8-10. Contact: sp95@itd.nrl.navy.mil. INET '95. Honolulu, HI. June 28-30, 1995. Sponsored by the Internet Society. Contact inet95@isoc.org. Key Players in the Introduction of Information Technology: Their Social Responsibility and Professional Training. July 5-6-7, 1995. Namur, Belgium. Sponsored by CREIS. Contact: nolod@ccr.jussieu.fr. Advanced Surveillance Technologies. Sept. 5, 1995. Copenhagen, Denmark. Sponsored by Privacy International and EPIC. Contact pi@epic.org. (Send calendar submissions to Alert@epic.org) ======================================================================= The EPIC Alert is a free biweekly publication of the Electronic Privacy Information Center. To subscribe, send the message: SUBSCRIBE CPSR-ANNOUNCE Firstname Lastname to listserv@cpsr.org. You may also receive the Alert by reading the USENET newsgroup comp.org.cpsr.announce. Back issues are available via FTP/WAIS/Gopher/HTTP from cpsr.org /cpsr/alert and on Compuserve (Go NCSA), Library 2 (EPIC/Ethics). An HTML version of the current issue is available from epic.digicash.com/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 relating to the National Information Infrastructure, such as the Clipper Chip, the Digital Telephony proposal, medical record privacy, and the sale of consumer data. EPIC is sponsored by the Fund for Constitutional Government and Computer Professionals for Social Responsibility. EPIC publishes the EPIC Alert and EPIC Reports, pursues Freedom of Information Act litigation, and conducts policy research on emerging privacy issues. For more information, email info@epic.org, WWW at HTTP://epic.digicash.com /epic or write EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington, DC 20003. (202) 544-9240 (tel), (202) 547-5482 (fax). The Fund for Constitutional Government is a non-profit organization established in 1974 to protect civil liberties and constitutional rights. Computer Professionals for Social Responsibility is a national membership organization of people concerned about the impact of technology on society. For information contact: cpsr-info@cpsr.org 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 "The Fund for Constitutional Government" and sent to EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington DC 20003. Your contributions will help support Freedom of Information Act litigation, strong and effective advocacy for the right of privacy and efforts to oppose Clipper and Digital Telephony wiretapping proposals. ------------------------ END EPIC Alert 2.01 ------------------------