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EPIC Alert 17.07

                            E P I C   A l e r t
Volume 17.07                                              April 9, 2010

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


		      "Defend Privacy. Support EPIC."

Table of Contents
[1] EPIC Files Opposition Motion in NSPD 54 Case
[2] Lawmakers Urge FTC to Investigate Google Buzz
[3] Opposition to Body Scanners Continues to Grow 
[4] DHS Releases Privacy Study of Cybersecurity Project
[5] New Advisory Board Members Join EPIC
[6] News in Brief
[7] EPIC Bookstore: "Digital Privacy"
[8] Upcoming Conferences and Events

TAKE ACTION: Stop Airport Strip Searches!
- JOIN Facebook Group "Stop Airport Strip Searches" and INVITE Friends

[1] EPIC Files Opposition Motion in NSPD 54 Case

The next stage of litigation is underway in EPIC's Freedom of
Information Act case against the National Security Agency and National
Security Council. EPIC is seeking a copy of National Security
Presidential Directive 54 (NSPD 54), the secret directive governing the
future of United States Cybersecurity Policy. The government has filed
a motion to dismiss parts of the case, and EPIC has filed its
opposition to the motion.

The original complaint filed by EPIC in February asserted four legal
counts against the government. The first two counts were against the
NSA for failing to properly comply with the requirements of the FOIA.
The third count was brought against the National Security Council for
also failing to comply with the requirements of the FOIA, because the
NSA referred the request to the NSC. Finally, the fourth count was
brought against the NSA under the Administrative Procedures Act (APA)
for violating federal regulations in handling the request.

The government responded by filing a partial motion to dismiss,
specifically seeking to dismiss the third and fourth counts of the
complaint and to have the NSC dismissed as a defendant. It argued that
the NSC is not subject to the FOIA and that even if it was, EPIC would
have had to submit a request directly to it, and it argued that the
fourth count should be dismissed because the FOIA provides an adequate
remedy and so EPIC may not seek a remedy under the APA.

EPIC's responses addresses each of the government's arguments in turn.
EPIC first argues that the behavior of the government with respect to
this case makes the NSC subject to the requirements of the FOIA. Next
the response shows considerable authority for the fact that a referred
request is as good as a direct request. Finally, EPIC argues that the
fourth count is based squarely on the NSA's published regulations, and
qualifies as an independent APA claim. The response was filed on April
8 in the D.C. Federal District Court.

Meanwhile, the Senate Armed Services Committee has scheduled a
nomination hearing on April 15, 2010 for Army Lt. Gen. Keith Alexander
to be the head of the newly formed Cyber  Command. The Cyber Command
will give the Department of Defense broad new authority  over the
Internet. Alexander is currently the Director of the National Security

EPIC has said that the NSA's legal authority to conduct surveillance in
the United States against US citizens should be made public in advance
of the hearing

EPIC Opposition to Government Motion to Dismiss

Government Motion to Dismiss

EPIC Complaint


Senate Armed Services Committee, Hearing Notice

[2] Lawmakers Urge FTC to Investigate Google Buzz

Ten House Members have asked the Federal Trade Commission to pursue an
investigation into the Google social networking service Buzz. The tool
has come under fire because it breaches online consumer privacy and
trust. The lawmakers highlighted "Google's practice of automatically
using consumers' e-mail address book to create contact lists for Buzz
and then publicly disclosing the names of these private contacts by
posting this information online." The lawmakers also asked the
Commission to consider Google's proposed acquisition of AdMob, the
mobile phone advertising company, and how this deal "will affect
competition and Google's incentives to offer robust consumer privacy

EPIC has filed a complaint with the FTC, and a further supplement to
its complaint, asking the Commission to investigate Google Buzz. The
complaint cites clear harms to service subscribers, and alleges that
the change in business practices "violated user expectations,
diminished user privacy, contradicted Google's privacy policy, and may
have violated federal wiretap laws." EPIC's supplemental complaint
further elaborates on the specific ways in which Google Buzz
constituted a violation of Google's state Privacy Policy for Gmail.

On February 26, 2010, the FTC sent a letter to EPIC regarding the
complaint, wherein The Bureau of Consumer Protection Director stated
that the EPIC complaint "raises interesting issues that relate to
consumer expectations about the collection and use of their data." The
FTC Director further highlighted the importance of having consumers
"understand how their data will be used" and allowing consumers the
"opportunity to exercise meaningful control over such uses."

House Members Letter to FTC
EPIC Google Buzz Complaint to FTC

EPIC Google Buzz Supplemental Complaint to FTC

FTC Letter to EPIC

EPIC: In re Google Buzz

[3] Opposition to Body Scanners Continues to Grow 

The Committee on Homeland Security has expressed privacy concerns
regarding airport body scanners. In response to a Congressional
inquiry, led by Congressman Bennie Thompson, the Transportation
Security Agency acknowledged that images on body scanner machines would
be recorded for "testing, training, and evaluation purposes." The TSA
also did not dispute that test mode, which allows for exporting image
data, could be activated in airports, but said this "would" not happen.

In addition to congressional concerns, the Idaho House of
Representatives has voiced opposition to body scanners by voting to
limit use of the digital strip search machines. The 58-9 vote sends
Bill 573 to the Idaho Senate, which will vote on the anti-body scanner
measure. The Bill would bar body scanners as primary screening, require
security officers to offer an alternative search, and mandate an
independent investigation into the scanners' health risks. The bill's
sponsor, Rep. Phil Hard, said, "It's my opinion that the use of these
devices to screen every individual … would be an unreasonable search of
those persons."

Furthermore, in a March 25, 2010 letter, civil liberties, consumer
rights, air travel, and religious organization have asked President
Obama to "suspend the further deployment of body scanners in US
airports." The organizations said that the scanners are "contributing
to a negative perception of the United States" and noted the "sincerely
held religious opposition to the digital undressing of air travelers by
TSA officials."

This opposition follows EPIC President Marc Rotenberg's testimony
before the House Committee on Homeland Security, in which he urged the
Committee to halt the plan to deploy body scanners in the nation's
airports. Furthermore, Ralph Nader and Marc Rotenberg asked President
Obama to suspend the deployment of body imaging devices until a
"comprehensive evaluation of the devices' effectiveness, health
impacts, and privacy safeguards is completed by an independent review
board." Lastly, the Government Accountability Office released a report
that warned the TSA of the importance of full operational tests and
expressed concern over TSA's lack of complete risk assessments and
inability to "provide documentation to show how they have addressed the
concerns … regarding the susceptibility of the technology to terrorist

TSA Letter to Congressman Bennie Thompson

Idaho House of Representatives Bill 573

Coalition Letter to President Obama

EPIC Testimony to House Committee on Homeland Security

Nader and Rotenberg Letter to President Obama

Government Accountability Office Report

EPIC: Whole Body Imaging Technology

[4] DHS Releases Privacy Study of Cybersecurity Project

The Department of Homeland Security Privacy Office has released an
unclassified version of the Privacy Impact Assessment for the
Initiative Three Exercise, a pilot exercise for the classified
cybersecurity tool known as "EINSTEIN 3." Shortly before the release of
the document, EPIC had filed a Freedom of Information Act request with
DHS for it.

EINSTEIN 3 is the next generation of the U.S. Computer Emergency
Readiness Team's intrusion detection and prevention system for the
federal government, which will involve active monitoring of all network
traffic to and from federal agencies. The Department has not released
the full, classified assessment for the tool in either complete or
redacted form, but instead drafted a different version for release to
the public. It is not clear what differences exist between the actual
assessment and the public version.

According to the document as released, the pilot exercise will involve
an unnamed federal agency, an unidentified internet service provider,
the Department of Homeland Security, and the National Security Agency.
All network traffic bound for the participating agency will be routed
by the internet service provider through the EINSTEIN 3 system, which
will be physically located within the service provider. The system
analyzes the traffic and seeks to identify and prevent intrusion
attempts based on predetermine signatures. When new threats are
identified, there is a mechanism in place for storing and analyzing the
data later, with potential involvement from the National Security

DHS: Privacy Impact Assessment for US-CERT Initiative Three Exercise

EPIC Deep Packet Inspection

EPIC Critical Infrastructure Protection

[5] New Advisory Board Members Join EPIC

The Electronic Privacy Information Center (EPIC) has announced the new
members of the EPIC Advisory Board.

The new members are Alessandro Acquisti Associate Professor of
Information Technology and Public Policy at Carnegie Mellon University,
Urs Gasser, Executive Director of the Berkman Center for Internet &
Society, Pamela Jones Harbour, Former FTC Commissioner who recently
started at Fulbright and Jaworski, Kristina Irion Assistant Professor
at the Center for Media and Communications Studies at Central European
University, Jeff Jonas, Chief Scientist at IBM Entity Analytics Group,
and Michael Kirby, Honorary Professorial Fellow at Australian National
University and University of Melbourne Former Justice, High Court of

The EPIC Advisory Board is a distinguished group of experts that
include leading innovators, scholars, and advocates. Acquisti is an
expert in the behavioral economics of privacy, and the co-editor of
"Digital Privacy: Theory, Technologies, and Practices." Gasser’s
research focuses on information law and policy and the interaction
between law and innovation. He is the coauthor of "Born Digital:
Understanding the First Generation of Digital Natives." Irion is an
expert in media law, with a background in data protection and
communications policy. Jonas is a leading innovator who developed
systems for the Las Vegas gaming industry, and advises policymakers on
privacy and counterterrorism. Kirby is a former Justice of the High
Court of Australia, and the "father" of the OECD Privacy Guidelines.

EPIC Board Chair Deborah Hurley said, "We are very pleased to welcome
our new members to the EPIC Advisory Board. This is an extraordinary
group of individuals who will bring much to our work."

Also, three members of the EPIC Advisory Board have joined the EPIC
Board of Directors. They are Christine Borgman, Presidential Chair and
Professor of Information Studies, UCLA; Pamela Samuelson, Professor,
Berkeley Law School and School of Information, University of
California, Berkeley; and Paul Smith. Partner with Jenner and Block,
and chair of the firm’s Appellate and Supreme Court Practice committee.

EPIC is pleased to welcome all of these experts to its Advisory Board.

EPIC Advisory Board Page

Advisory Board Announcement

[6] News in Brief

EPIC's Annual Champion of Freedom Award Dinner to be Held June 2

Calling all Privacy Heroes, Privacy Rock Stars, Privacy Champions,
Privacy Enthusiasts, and Friends of Privacy!

EPIC wants you to save the date June 2, 2010 for the annual "EPIC
Champion of Freedom Award" dinner event in Washington, D.C. Past
honorees include Director and Producer D.J. Caruso, Congressman Ed
Markey, Supreme Court litigator Paul Smith, Professor Pamela
Samuelson, and Senator Patrick Leahy.

Even if you are unable to attend, you can still support the 
EPIC event. Register now at:

Seating is limited.

Inspector General: ID Theft Not a Priority at Justice Department

The Inspector General's Office released a new report on the Department
of Justice's Efforts to Combat Identity Theft. The report states that
identity theft is a growing problem, but the Justice Department's
efforts to combat the crime have "faded as priorities." A Deputy
Assistant Attorney General for the DOJ's Criminal Division testified
that identity theft was the fastest growing crime in 2008, victimizing
more than 10 million Americans. The Inspector General concludes that
the Department has failed to develop a coordinated plan to combat
identity theft since a 2007 task force report. In 2007, EPIC proposed a
comprehensive strategy to "address the root causes of identity theft:
excessive data collection and lax security practices."

Inspector General Report

EPIC Comments to Federal Identity Theft Task Force

EPIC: Identity Theft

Congressional Leaders Press Obama on Privacy Board

Chairman Bennie Thompson and twenty members of the House of
Representatives sent a letter to President Obama seeking the immediate
nomination of members to the Privacy and Civil Liberties Oversight
Board. The Privacy Board was active during the Bush Administration, but
the Obama administration has moved slowly to reconstitute the advisory
body. No hearings have been held and no reports have been issued. The
board is intended to provide advice on the civil liberty implications
of programs that effect the rights of citizens, such as the use of
Whole Body Scanners by the TSA, biometic identifiers, and cyber
security policy.  Last month, EPIC joined more than thirty other
organizations in signing a letter to President Obama and members of
Congress, also calling for the reconstitution of the Board.

Letter from Chairman Thompson and other Representatives

Letter from over 30 Privacy Organizations

Statutory Basis for the Board

Facebook Announces Changes to Privacy Policy

Facebook announced "another set of revisions" to its privacy policy.
The changes appear to make it easier for Facebook to gather locational
data on users and to disclose user data to third-party web sites,
namely sharing user information with a number of "pre-approved"
third-party web sites through Facebook Platform. It also appears that
Facebook will make more use of data set to "Everyone." Facebook
solicited comments on the changes for seven days, and received more
than 4,000 responses from users, regulators and online privacy
advocates. The comments showed that responders were confused by already
existing features or did not understand Facebook's policy and
procedures. In December, EPIC filed a complaint with the FTC regarding
the last set of changes to the Facebook privacy settings. The FTC
responded that the EPIC complaint "raises issues of particular
interest" to the Commission.

Facebook Recent Proposed Changes

Facebook Response to Comments

EPIC Facebook Complaint

FTC Response to EPIC Complaint

EPIC: Facebook Privacy

New Jersey Supreme Court Rules in Favor of Employee Privacy

The New Jersey Supreme Court ruled in favor of a female employee whose
employer read emails that she sent while using Yahoo Mail on a
company-owned laptop. The employee, Marina Stengart, had exchanged
emails with her attorney regarding a possible discrimination lawsuit
against the employer. The employer then pulled the emails off of the
laptop's hard drive and used them to prepare a defense to the
discrimination suit. The New Jersey Supreme Court found that "Under the
circumstances, Stengart could reasonably expect that e-mail
communications with her lawyer through her personal,
password-protected, web-based e-mail account would remain private, and
that sending and receiving them using a company laptop did not
eliminate the attorney-client privilege that protected them." The
Supreme Court of the United States is set to consider employee privacy
in City of Ontario v. Quon, in which EPIC submitted a "friend of the
court brief."

New Jersey Supreme Court: Stengart v. Loving Care Agency, Inc.

EPIC: City of Ontario v. Quon

EPIC: Workplace Privacy

GoDaddy Pulls out of China over Privacy Risks to Users

GoDaddy, the world’s largest internet domain name registrar, will no
longer register domain names in China, due to new government rules for
monitoring Internet use. China now requires every domain name
registrant to provide photographs, business information, signed
registration forms, and business registration numbers to the China
Internet Network Information Center, a quasi-government agency. GoDaddy
General Counsel Christine N. Jones stated, "The intent of the
procedures appeared, to us, to be based on a desire by the Chinese
authorities to exercise increased control over the subject matter of
domain name registrations by Chinese nationals." EPIC supports privacy
for web site registrants and has worked with GoDaddy in the past to
urge the US National Telecommunications and Information Administration
to safeguard the right of Internet users to maintain private web site

China Internet Network Information Center
GoDaddy: Statement


Privacy Groups Call on FTC to Investigate Companies' Data Collection

The Center for Digital Democracy, U.S. PIRG and the World Privacy Forum
filed a complaint with the Federal Trade Commission asking the
commission to investigate the privacy threats to consumers from
real-time profiling, targeting and auctioning of consumer data. The
complaint cites companies like Google, Yahoo, PubMatic, TARGUSinfo,
MediaMath, eXelate, Rubicon Project, AppNexus and Rocket Fuel, and
states that privacy policies and self-regulation have failed as
meaningful safeguards. The coalition asks the FTC to compel companies
involved in the practice to provide consumers with an opt-in
participation option and require that the companies acknowledge these
practices in their privacy policies, among other things. EPIC currently
has three pending complaints filed with the FTC concerning Could
Computing, Facebook and Google Buzz.

Coalition Complaint to FTC

EPIC Cloud Computing Complaint to FTC

EPIC Facebook Complaint to FTC

EPIC Supplemental Facebook Complaint to FTC

EPIC Google Buzz Complaint to FTC

Worker Biometric ID Under Consideration in US

Senators Charles Schumer and Lindsey Graham have proposed a new
national identity card. The Senators would require that "all U.S.
citizens and legal immigrants who want jobs" obtain a "high-tech,
fraud-proof Social Security card" with a unique biometric identifier.
The card, they say, would not contain private information, medical
information, or tracking techniques, and the biometric identifiers
would not be stored in a government database. EPIC has testified in
Congress and commented to federal agencies on the privacy and security
risks associated with national identification systems and biometric

Schumer & Graham: The Right Way to Mend Immigration

EPIC Testimony regarding a 2007 National ID proposal

EPIC Comments regarding RealID proposal

EPIC: National ID and the Real ID Act

EPIC: Biometric Identifiers

[7] EPIC Bookstore: "Digital Privacy"

"Digital Privacy: Theory, Technologies, and Practices" 
Edited by Alessandro Acquisti, Stefanos Gritzalis, Costas
Lambrinoudakis, & Sabrina De Capitani di Vimercati

Digital Privacy: Theory, Technologies, and Practices is an excellent
collection of twenty-one chapters by a variety of noted experts,
exploring the cutting edge developments in the world of digital
privacy. The works range from high-level mathematical analyses and
statistical models, as in "Privacy-Preservation Techniques in Data
Mining" by Chunhua Su, et al., to studies of social expectations, as in
"Privacy Perceptions among Members of Online Communities" by Maria
Karyda and Spyros Kokolakis.

The twenty-one chapters are grouped into seven categories: The Privacy
Space, Privacy Attacks, Privacy-Enhancing Technologies, User Privacy,
Privacy in Ubiquitous Computing, the Economics of Privacy, and Privacy
and Policy. This structure allows the reader to progress through the
entire work as a coherent whole, or to jump from section to section,
seeking specific topics. The variety of topics covered and the
different ways in which they are addressed make the work an excellent
choice for experts in the field seeking to stay abreast of new
developments, while much of the book remains at least somewhat
accessible for the interested lay reader.

Some of the most interesting portions of the book come when the authors
describe new or developing techniques for protecting privacy without
compromising functionality of advanced techhnologies. For example, Ian
Goldberg's chapter opens the text with a third revised version of his
study of privacy-enhancing technologies (PETs) for the internet,
including discussion of a number of different technologies for
protecting anonymity and pseudonymity online. All three chapters within
the section on PETs also present fascinating new concepts for enforcing
protections on users' privacy.

The sections on user privacy and expectations as well as the
discussions of the economics of privacy are also particularly
interesting. For example, Athanasios N. Yannacopoulos et al. present a
model for a sort of privacy insurance which IT firms could use for
determining the risks it faces by handling clients' personal data.
Alessandro Acquisti and Jens Grossklags also provide a look into
behavioral economics and individuals' decision-making processes with
respect to their privacy.

Digital Privacy is certainly intended for an advanced audience, and the
text will be most helpful to privacy or technology experts, but its
broad scope and coverage of the legal, technical, and practical
implications of privacy protection in the modern world make it a
fascinating read for any interested reader.

--Jared Kaprove
EPIC Publications:

"Litigation Under the Federal Open Government Laws 2008," edited by
Harry A. Hammitt, Marc Rotenberg, John A. Verdi, and Mark S. Zaid
(EPIC 2008). Price: $60.
Litigation Under the Federal Open Government Laws is the most
comprehensive, authoritative discussion of the federal open access
laws. This updated version includes new material regarding the
substantial FOIA amendments enacted on December 31, 2007. Many of the
recent amendments are effective as of December 31, 2008. The standard
reference work includes in-depth analysis of litigation under Freedom
of Information Act, Privacy Act, Federal Advisory Committee Act,
Government in the Sunshine Act. The fully updated 2008 volume is the
24th edition of the manual that lawyers, journalists and researchers
have relied on for more than 25 years.


"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.


"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 CAN-SPAM Act.


"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 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

"IAPP 10th Anniversary Webcast"
National Press Club, Washington, DC, March 16, 2010
For more information:

"Third Annual Freedom of Information Day Celebration:
Washington College of Law, Washington, DC, March 16, 2010
For more information:

"Privacy 2010"
Stanford, CA, March 23 - 25, 2010.
For more information:

"Smartgrid Policy Summit"
Washington, DC, April 8, 2010
For more information:

"Developing a Trusted Cyber-Infrastructure"
Toronto, ON, May 12, 2010
For more information:

"Computers, Freedom, and Privacy"
San Jose, June 15-18, 2010.
For more information:

"32nd Int'l Conference of Data Protection and Privacy Commissioners"
Jerusalem, October 2010.
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 or write
EPIC, 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. +1 202
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