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Volume 9.12 June 20, 2002
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Published by the
Electronic Privacy Information Center (EPIC)
Washington, D.C.
http://www.epic.org/alert/EPIC_Alert_9.12.html
=======================================================================
Table of Contents
=======================================================================
[1] Watchtower Bible: Supreme Court Upholds Anonymity, Free Speech
[2] ACTION: DC Council Considers Cameras - Your Views Needed
[3] EPIC, EFF Urge House To Consider Risks of DRM
[4] Certiorari Denied in TU v. FTC; Bus Searches Deemed Constitutional
[5] EPIC Participates in FTC Do-Not-Call Telemarketing Workshop
[6] North Dakota Votes 72 Percent in Favor of Opt-In
[7] EPIC Bookstore - Fast Forward
[8] Upcoming Conferences and Events
=======================================================================
[1] Watchtower Bible: Supreme Court Upholds Anonymity, Free Speech
=======================================================================
The Supreme Court ruled on June 17 that a Stratton, Ohio ordinance,
which requires those going door-to-door to obtain a permit and to
identify themselves prior to and during petitioning, violates the
right of anonymity inherent in the First Amendment freedom of speech.
The Court determined 8-1 that free speech includes the right to take a
message or idea directly to someone's door, and that this right cannot
be limited by a requirement to pre-register by name. The Court stated:
[I]t is offensive, not only to the values protected by the
First Amendment, but to the very notion of a free society,
that in the context of everyday public discourse a citizen
must first inform the government of her desire to speak to
her neighbors and then obtain a permit to do so.
The ordinance was passed in 1998 to regulate canvassing and soliciting
of residents of the village of Stratton at their homes. In June 1999,
the Watchtower Bible and Tract Society of New York and individual
Jehovah's Witnesses sued in federal court, seeking a declaration that
the ordinance violated the First Amendment. They argued it infringed
on their free speech, free press, free association and free exercise
of religion rights. They also argued that the ordinance was
unconstitutional because it infringed on the right to engage in
anonymous speech. Both the District Court and the Court of Appeals
upheld the village requirement.
EPIC, the ACLU, and 14 legal scholars filed an amicus curiae brief
with the Court in November 2001, arguing that the ordinance infringes
upon privacy rights, as well as the First Amendment rights of
anonymity, expression, and freedom of association. Anonymity is a
core First Amendment value that enables the expression of political
ideas, participation in the political process, membership in political
associations, and the practice of religious belief without fear of
government intimidation or public retaliation. The Stratton
ordinance, in forcing people to sacrifice their anonymity, chills
activity protected by the First Amendment.
The Supreme Court has long held anonymous speech to be "an honorable
tradition of advocacy and of dissent." In Talley v. California, the
fountainhead case for anonymity protection, the Court struck down a
California law prohibiting anonymous leafletting on the grounds that
it "might deter perfectly peaceful discussions of public matters of
importance."
The Supreme Court opinion is online at:
http://supct.law.cornell.edu/supct/html/00-1737.ZS.html
The EPIC/ACLU amicus brief is at:
http://www.epic.org/anonymity/watchtower.pdf
EPIC's Watchtower Bible page has background information on the case:
http://www.epic.org/free_speech/watchtower.html
=======================================================================
[2] ACTION: DC Council Considers Cameras - Your Views Needed
=======================================================================
As the public debate over video surveillance in Washington, DC
continues, the City Council held a day long hearing on June 13.
EPIC Executive Director Marc Rotenberg spoke about the privacy and
First Amendment implications of video surveillance technology, and
brought attention to helicopter surveillance logs obtained by EPIC
under the Freedom of Information Act.
The documents obtained by EPIC indicate that the Park Police have
engaged in routine aerial surveillance of political protests in
Washington for the last several years. In one case from January 22,
2002, images from a pro-life demonstration in front of the Supreme
Court were downlinked to the FBI. Camera logs also revealed aerial
surveillance of the Million Family March last year, and the recent
anti-globalization, pro-Palestine demonstrations in April.
Rotenberg's testimony also explored the expectation of privacy in a
public space and the need for effective limitations on the use of
video surveillance technology. The EPIC statement reviewed the
experiences of London, England and Sydney, Australia, where evidence
of the effectiveness of the surveillance system is mixed and suggests
that the benefits of the cameras have been significantly overstated.
The ACLU, the NAACP, and EPIC all called for an independent commission
to review the need for surveillance cameras and to draft legislation
to regulate the cameras if they are needed.
DC City Councilmembers Kathy Patterson and Carol Schwartz have taken
the lead in raising questions about the benefits of the camera system
and calling for strong legal safeguards. Privacy advocates have
successfully slowed the Metropolitan Police Department (MPD)'s plan,
backed by Mayor Williams, to blanket the District with cameras. They
have also forced the MPD to draft more comprehensive guidelines
concerning the use of video surveillance. But the proposed guidelines
are still not sufficient to protect the rights of residents and
visitors in the Nation's Capital.
ACTION -
The District of Columbia is accepting public comments on the video
surveillance regulations until June 27, 2002. You should act now to
express your views on this matter. The key points your comments might
touch on are:
- Appreciate efforts of DC City Council and particularly
councilmembers Patterson and Schwartz to draw attention
to the far-reaching privacy implications of video
surveillance in Washington, DC.
- The Police should cease the unlawful covert camera
surveillance of political organizations engaged in
peaceful protest in Washington, DC.
- The case has not yet been made for the benefits of an
elaborate camera system.
- We have a resonable expectation of privacy in public
from covert surveillance cameras operated by law
enforcement authorities.
- If the surveillance system goes forward, there needs
to be clear and comprehensive legislation limiting the
technology to safeguard the rights of residents and
visitors to Washington, DC.
Send your comments via our link below, or send them directly to Ms.
Phyllis Jones, Secretary to the Council, Suite 5, John A. Wilson
Building, 1350 Pennsylvania Avenue, N.W., Washington, DC 20004.
ACTION - DC Surveillance Comment page:
http://www.epic.org/privacy/surveillance/comments.html
D.C. City Council Notice:
http://www.dccouncil.washington.dc.us/patterson/061302notice.htm
EPIC's testimony:
http://www.epic.org/privacy/surveillance/testimony_061302.html
Draft Surveillance Regulations:
http://www.epic.org/privacy/surveillance/revised_regs.html
Park Police Helicopter Logs:
http://www.epic.org/privacy/surveillance/foia.html
Observing Surveillance Postcard Exhibit:
http://www.observingsurveillance.org/postcards.html
EPIC's Video Surveillance Page:
http://www.epic.org/privacy/surveillance
=======================================================================
[3] EPIC, EFF Urge House Subcommittee to Consider Risks of DRM
=======================================================================
In response to a recent hearing on the consumer benefits of digital
rights management technologies (DRM), EPIC joined with the Electronic
Frontier Foundation (EFF) in urging Congress to consider the potential
harms DRM has on consumer and societal rights.
On June 5, the House Judiciary Subcommittee on the Courts, the
Internet, and Intellectual Property held a hearing focusing on the
consumer benefits of digital rights management technologies, with a
witness panel composed only of technology industry representatives,
namely: Microsoft, Adobe, Suncomm, and Centerspan.
To bring a consumer perspective to the debate, EPIC and EFF
distributed a letter to the Members and the media that drew attention
to some of the negative impacts of DRM. EPIC and EFF argued that DRM
weakens consumers' privacy by allowing copyright owners to monitor
private consumption of content and transactional data related to that
consumption (e.g. in an attempt to secure content, many DRM systems
require the user to identify and authenticate a right of access to the
protected media); DRM weakens individuals' rights by eliminating the
ambiguity inherent in "fair use," which allows courts to mediate
between law and new technologies; DRM restricts access to the public
domain at the whim of copyright owners and creates obstacles to the
free flow of information, even for legitimate purposes; DRM encroaches
on meaningful access to the public domain and ignores the limited
nature of copyright in law; and that over time, DRM will change users'
expectations about control and the use of digital content.
Joint Letter on DRM:
http://www.epic.org/privacy/drm/hjdrmltr6.5.02.html
EPIC's DRM Web Page:
http://www.epic.org/privacy/drm/
=======================================================================
[4] Certiorari Denied in TU v. FTC; Bus Searches Deemed Constitutional
=======================================================================
The United States Supreme Court denied a petition to review Trans
Union (TU) v. Federal Trade Commission (FTC), a First Amendment
challenge to rules prohibiting the use of credit data for marketing
purposes. TU sold "tradelines," or information that notes a
credit-relevant event, for marketing purposes. Tradelines include
name, address, date of birth, telephone number, Social Security
number, account type, opening date of account, credit limit, account
status, and payment history.
The Court declines to hear the majority of appeals brought to it, and
a denial is not a ruling on the case's merits. However, this case is
important because TU is one of the most powerful corporations in the
credit reporting industry and is facing enough legal liability to send
the company into bankruptcy. Additionally, the company retained
Laurence Tribe, a noted First Amendment scholar, to argue that its
data marketing techniques were protected by the Constitution.
In a seperate case this week, the Supreme Court held that the Fourth
Amendment does not require police officers to advise bus passengers of
their right not to cooperate and to refuse consent to searches. In
the case, police officers engaged in random, suspicionless searches of
bus passengers by boarding the vehicle and asking individuals whether
they would consent to a search. The Court held that a reasonable
passenger would not find the police officers' presence confrontational
or coercive.
At oral argument, the Department of Justice claimed that the bus
searches in question, most commonly performed for drug interdiction,
are necessary to stem terrorism. Justices Souter, Stevens, and
Ginsburg dissented from the opinion, arguing that the searches are not
justified for ground transportation and that a reasonable passenger
would not feel free to decline the officers' request to search.
Trans Union v. FTC, No. 01-1080, 536 U.S. ___ (2002):
http://www.supremecourtus.gov/opinions/01pdf/01-1080.pdf
Trans Union v. FTC, No. 00-1141 (D.C. Cir. 2001):
http://pacer.cadc.uscourts.gov/common/opinions/200104/00-1141a.txt
EPIC Profiling Page:
http://www.epic.org/privacy/profiling/
United States v. Drayton, No. 01-631, 536 U.S. ___ (2002):
http://www.supremecourtus.gov/opinions/01pdf/01-631.pdf
=======================================================================
[5] EPIC Participates in FTC Do-Not-Call Telemarketing Workshop
=======================================================================
Last week, EPIC and other consumer groups participated in a Federal
Trade Commission (FTC) workshop devoted to implementing a do-not-call
(DNC) list. The workshop examined issues associated with proposed
changes to the Telemarketing Sales Rule (TSR). Industry participants
dominated the make-up of the workshop. However, the FTC seemed
committed to developing a national do-not-call (DNC) list in order to
allow individuals to opt-out of some telemarketing.
EPIC's advocacy in the workshop mirrored the comments that were
submitted in response to proposed changes to the TSR. EPIC supported
a national DNC list with phone, mail, and Internet enrollment. EPIC
also supported changes to the TSR that would require the transmission
of Caller ID information with each sales call.
Industry advocates generally supported positions that would make it
more difficult to enroll on the DNC list, and once enrolled, would
require individuals to be dropped from the list regularly. Some
industry advocates claimed that only the line subscriber -- not even a
spouse or the roommate of the subscriber -- should have authority to
enroll on the list. Others, including the Newspaper Association of
America, argued individuals should have to reenroll every year.
EPIC Comments on the Telemarketing Sales Rule:
http://www.epic.org/privacy/telemarketing/tsrcomments.html
EPIC Telemarketing Page:
http://www.epic.org/privacy/telemarketing/
=======================================================================
[6] North Dakota Votes 72 Percent in Favor of Opt-In
=======================================================================
On June 11, residents of North Dakota rejected an opt-out standard for
financial privacy, thereby establishing opt-in protections for their
personal information.
In 1999, Congress passed the Gramm-Leach-Bliley Act (GLBA) and
established a default opt-out rule for information sharing among
banks, insurance companies, and brokerage companies. Because of the
GLBA, the North Dakota legislature decided to harmonize its opt-in
privacy law with the federal standard. In January 2001, the
legislature passed Senate Bill 2191, which established opt-out
protections for information sharing with nonaffiliated third parties.
2191 was deemed an "emergency measure" and took effect in July 2001.
Members of the State's Constitution Party strongly objected to this,
and collected the 15,000 signatures necessary to get the issue placed
on the ballot for statewide review. A group called "Protect Our
Privacy" formed, and with the help of the American Civil Liberties
Union (ACLU), they raised about $27,000 to campaign for opt-in
support. An opposition group, driven mainly by bankers and financial
interests, raised well over $100,000 to oppose opt-in. Much of that
money was spent on misleading ads, including one that claimed ATMs
would no longer work in the State if opt-in was adopted. This caused
such controversy that the State Attorney General issued an opinion
specifically rebutting the banks' claims.
North Dakota's action is likely to spark voter initiatives for opt-in
in other states. Advocates in North Dakota also plan to expand opt-in
next year by applying the standard to the insurance industry.
More information on the GLBA and how to support opt-in legislation:
http://www.privacyrightsnow.com/
Protect Our Privacy:
http://www.protectourprivacy.net/index.htm
=======================================================================
[7] EPIC Bookstore - Fast Forward
=======================================================================
Fast Forward: Hollywood, the Japanese, and the VCR Wars, by James
Lardner.
http://www.epic.org/bookstore/powells/redirect/alert912.html
In light of the ongoing battle in Paramount v. ReplayTV and SONICblue,
in which the TV studios have sued the manufacturer of a Personal Video
Recorder for copyright infringement, it is an apt time to wander down
memory lane with Fast Forward: Hollywood, the Japanese, and the VCR
Wars, by James Lardner. This book, published in 1987, is a
fascinating story about the rise of the VCR, and the infamous legal
fight that resulted in the U.S. Supreme Court decision in Universal v.
Sony.
The author is an accomplished journalist who brings this drama to life
in ways that a dry legal opinion could never do. The book begins in
1956 when a team of American engineers succeeded in recording a TV
picture on a reel of magnetic tape. For the next two decades, a
litany of companies raced to develop a home videotape machine.
Ultimately, the VCR became the most successful electronic appliance
since color television, and shook the foundations of American
electronic companies and Hollywood content-producers to the core.
After Universal sued Sony in 1976, the VCR battle became legendary,
enlisting a star-studded cast (including the still-dominant force of
Jack Valenti) and resounding through Congressional committees and
lobbyists' offices galore, as well as the swank palaces of major media
conglomerates.
Despite the Supreme Court's decision that home video recording does
not infringe Hollywood's copyright in TV programs, the book makes it
evident that the copyright owners (called the Copyrightists by
Lardner) are resolute in their sense of entitlement. This sense of
entitlement is at odds with the huge revenue that the studios have
earned from the VCR's popularity. The TV studios do not seem to have
learned a lesson, richly told in this book, about fair use, and seem
fated to repeat it in the current Personal Video Recorder case.
- Megan E. Gray
================================
EPIC Publications:
"Privacy & Human Rights 2001: An International Survey of Privacy Laws
and Developments," (EPIC 2001). Price: $20.
http://www.epic.org/bookstore/phr2001/
This survey, by EPIC and Privacy International, reviews the state of
privacy in over fifty countries around the world. The survey examines
a wide range of privacy issues including, data protection, telephone
tapping, genetic databases, ID systems and freedom of information
laws.
================================
"The Privacy Law Sourcebook 2001: United States Law, International
Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2001).
Price: $40. http://www.epic.org/bookstore/pls2001/
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.
================================
"Filters and Freedom 2.0: Free Speech Perspectives on Internet Content
Controls" (EPIC 2001). Price: $20.
http://www.epic.org/bookstore/filters2.0/
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.
http://www.epic.org/cls/
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/crypto&/
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
http://www.epic.org/bookstore/
"EPIC Bookshelf" at Powell's Books
http://www.powells.com/features/epic/epic.html
=======================================================================
[8] Upcoming Conferences and Events
=======================================================================
** The Public Voice in Internet Policy Making. June 22, 2002.
Washington, DC. The Electronic Privacy Information Center (EPIC) will
host a one-day public symposium to discuss the future of our rights
and freedoms in the information age. The event is being hosted in
conjunction with INET 2002 and is free and open to the public. For
more information: http://www.thepublicvoice.org/events/dc02/ **
=======================================================================
INET 2002. Internet Crossroads: Where Technology and Policy Intersect.
Internet Society. June 18-21, 2002. Washington, DC. For more
information: http://www.inet2002.org/
Third Annual Institute on Privacy Law. Practising Law Institute. June
24-25, New York, NY. For more information: http://www.pli.edu/
IViR International Copyright Law Summer Course. Royal Netherlands
Academy of Arts and Sciences. July 8-12, 2002. Amsterdam, Netherlands.
For more information: http://www.ivir.nl/
O'Reilly Open Source Convention. O'Reilly and Associates. July 22-26,
2002. San Diego, CA. For more information:
http://conferences.oreilly.com/oscon/
Cyberwar, Netwar and the Revolution in Military Affairs: Real Threats
and Virtual Myths. International School on Disarmament and Research on
Conflicts (ISODARCO). August 3-13, 2002. Trento, Italy. For more
information: http://www.isodarco.it/html/trento02.html
ILPF Conference 2002: Security v. Privacy. Internet Law & Policy
Forum. September 17-19, 2002. Seattle, WA. For more information:
http://www.ilpf.org/conference2002/
Privacy2002. Technology Policy Group. September 24-26, 2002.
Cleveland, OH. For more information:
http://www.privacy2000.org/privacy02/index.shtml
Bridging the Digital Divide: Challenge and Opportunities. 3rd World
Summit on Internet and Multimedia. October 8-11, 2002. Montreux,
Switzerland. For more information: http://www.internetworldsummit.org/
2002 WSEAS International Conference on Information Security (ICIS
'02). World Scientific and Engineering Academy and Society. October
14-17, 2002. Rio de Janeiro, Brazil. For more information:
http://www.wseas.org/conferences/2002/brazil/icis/
IAPO Privacy & Security Conference. International Association of
Privacy Officers. October 16-18, 2002. Chicago, IL. For more
information: http://www.privacyassociation.org/html/conferences.html
3rd Annual Privacy and Security Workshop: Privacy & Security: Totally
Committed. Centre for Applied Cryptographic Research, University of
Waterloo and the Information and Privacy Commissioner/Ontario.
University of Toronto. November 7-8, 2002. Toronto, Canada. For more
information: http://www.epic.org/redirect/cacr.html
18th Annual Computer Security Applications Conference (ACSAC):
Practical Solutions to Real Security Problems. Applied Computer
Security Associates. December 9-13, 2002. Las Vegas, NV. For more
information: http://www.acsac.org/
Third Annual Privacy Summit. International Association of Privacy
Officers. February 26-28, 2003. Washington, DC. For more information:
http://www.privacyassociation.org/html/conferences.html
=======================================================================
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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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+1 202 483 1140 (tel), +1 202 483 1248 (fax).
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Thank you for your support.
---------------------- END EPIC Alert 9.12 -----------------------
.