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Subject: EPIC Alert 13.10

 =======================================================================
                            E P I C A l e r t
 =======================================================================
Volume 13.10 May 16, 2006
------------------------------------------------------------------------

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

              http://www.epic.org/alert/EPIC_Alert_13.10.html

  ACTION ITEM: Call-in to Congress and Protest Domestic NSA Surveillance

The Bill of Rights Defense Committee, in partnership with a group of
organizations including EPIC, is asking you to call your legislators to
protest the NSA's domestic call surveillance program. For details,
visit:

                  http://www.bordc.org/callin_060517.php

 =======================================================================
Table of Contents
 =======================================================================
[1] EPIC Urges FCC to Open Investigation into NSA Datamining [2] CIA
Director Nominee Oversaw NSA Domestic Spying Programs [3] Congress, Ex-NSA
Director, Law Experts Assail NSA Program [4] Phone Companies Under Fire for
Disclosures to NSA [5] Most Americans Want Investigation of NSA Program [6]
News in Brief [7] EPIC Bookstore: Christian Parenti's "The Soft Cage"
[8] Upcoming Conferences and Events

 =======================================================================
[1] EPIC Urges FCC to Open Investigation into NSA Datamining
 =======================================================================

In the wake of news regarding the National Security Agency's
recently-disclosed program to mine the communications records of tens of
millions of Americans, EPIC is asking the Federal Communications Commission
to investigate the phone companies that turned customer information over to
the NSA. If the companies had disclosed customer information without
warrants or explicit customer approval, they likely violated Section 222 of
the Communications Act. This provision of communications law requires
telephone companies to keep customer records confidential.

In urging the investigation, EPIC joins FCC Commissioner Michael Copps, who
called for an investigation on Monday. " We need to be certain that the
companies over which the FCC has public interest oversight have not gone -
or been asked to go - to a place where they should not be," Copps said.

This is the second secret NSA domestic spying program disclosed in the last
six months. In December, the New York Times reported that President Bush
secretly issued an executive order in 2002 authorizing the NSA to conduct
warrantless surveillance of international telephone and Internet
communications on American soil.

Government officials have refused to give details about either program,
saying such disclosures could harm national security. However, news reports
indicate that both programs are operating outside the bounds set by the
Foreign Intelligence Surveillance Act, which was passed after the Watergate
scandal to establish a legal basis for foreign intelligence surveillance
within the United States. The Bush Administration says that both programs
are continuing. The latest program contradicts statements made by the White
House and former NSA Director Michael Hayden that the domestic surveillance
program was "highly targeted" and directed only to "International
communications."

In the recently disclosed program, the agency is gathering communications
records for a massive database so that it can analyze calling patterns as it
tries to find terrorist activity. According to the USA Today article, AT&T,
Verizon and BellSouth handed over the data even though the government did
not have warrants. (BellSouth has since denied cooperating with the
program.) Qwest refused to give its customers' data to the government,
because the government did not have warrants and refused to have either the
Foreign Intelligence Surveillance Court or the U.S. attorney general's
office evaluate the legality of the program. (Read more about the phone
companies below.)

The Foreign Intelligence Surveillance Court issues warrants for secret
wiretap surveillance. The recently released Foreign Intelligence
Surveillance Act Report reveals that the government made 2,072 secret
surveillance requests to the court in 2005, a record high and 18 percent
more than in 2004. The court did not deny any of the requests.

EPIC's letter to the FCC:

      http://www.epic.org/privacy/wiretap/epic-fcc-nsa.pdf

Statement of FCC Commissioner Copps on the NSA Program:

      http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-265373A1.pdf

EPIC Resources on Domestic Surveillance:

      http://www.epic.org/features/surveillance.html

EPIC's Foreign Intelligence Surveillance Act Page:

      http://epic.org/privacy/terrorism/fisa

NSA, FAQ on Signals Intelligence:

      http://www.nsa.gov/about/about00020.cfm

Foreign Intelligence Surveillance Act Report:

     http://www.fas.org/irp/agency/doj/fisa/2005rept.html


 =======================================================================
[2] CIA Director Nominee Oversaw NSA Domestic Spying Programs
 =======================================================================

General Michael Hayden, who served as director of the National Security
Agency during the implementation of two controversial surveillance programs,
has been nominated by President Bush to head the Central Intelligence
Agency. If confirmed, Hayden would run the country's most prominent
intelligence-gathering agency, which is charged with collecting and
analyzing information about foreign governments, businesses, and people.
Hayden, the highest-ranking intelligence officer in the U.S. military, is
currently Principal Deputy Director of National Intelligence.

While at the NSA from 1999 to 2005, Hayden oversaw the agency's warrantless
surveillance of international calls into and out of the United States, and
headed the agency when it began acquiring phone records about Americans
without legal authority. According to the New York Times, "by all accounts,
General Hayden was the principal architect of the plan. He saw the
opportunity to use the N.S.A.'s enormous technological capabilities by
loosening restrictions on the agency's operations inside the United States."

The Senate Intelligence Committee will hold a confirmation hearing on
Hayden's nomination tomorrow. Several members of that committee have
publicly expressed concern about Hayden's role in the NSA's domestic
surveillance activities, as well as frustration that they were not fully
briefed on the extent of these operations. "There's no question that his
confirmation is going to depend upon the answers he gives regarding
activities of NSA," said committee member Senator Chuck Hagel.

Biographies of General Michael V. Hayden:

      http://www.af.mil/bios/bio.asp?bioID=5746

      http://en.wikipedia.org/wiki/Michael_Hayden

Senate Intelligence Committee Confirmation Hearing of General Michael Hayden
to be Director of the CIA:

      http://intelligence.senate.gov/hr109.htm#May%202006


 =======================================================================
[3] Congress, Ex-NSA Director, Law Experts Assail NSA Program
 =======================================================================

While the White House scrambled last week to defend its massive collection
of Americans' phone records, high-level government officials and legal
experts disputed the legality of the database and the secrecy surrounding
the NSA's activities.

Members of Congress across the political spectrum blasted the database.
Critics included the Senate Judiciary Committee's chairman and numerous
members of House and Senate oversight committees. Just hours after the
existence of the database was reported by USA Today, Representative Jane
Harman, the ranking member of the House Intelligence Committee, introduced a
bill that would underscore the illegality of conducting electronic
surveillance on Americans outside the Foreign Intelligence Surveillance Act.

In addition, former NSA director Bobby Ray Inman spoke out after hearing
news of the phone records collection, declaring that "we can do what the
country needs and work within the law."

Legal experts have also weighed in on the illegality of the database.
Harvard constitutional law professor Laurence Tribe railed against the
argument that individuals have no constitutional right to privacy in phone
numbers they dial. "Even if one trusts the president's promise not to
connect all the dots to the degree the technology permits, the act of
collecting all those dots in a form that permits their complete connection
at his whim is a 'search.' And doing it to all Americans, not just those
chatting with Al Qaeda, and with no publicly reviewable safeguards to
prevent abuse, is an 'unreasonable search' if those Fourth Amendment words
have any meaning at all," Professor Tribe wrote in a Boston Globe op-ed.

Professor Orin Kerr from the George Washington University Law School
tentatively concluded that the program implicated "no Fourth Amendment
issues . . . but a number of statutory problems." He speculated that the
program might violate a cadre of laws that restrict the collection of
communications-related information such as the Foreign Intelligence
Surveillance Act, Stored Communications Act, and the law regulating use of
pen registers (electronic devices that capture dialed phone numbers).

Marty Lederman, a professor at Georgetown Law School and former attorney
advisor in the Justice Department's Office of Legal Counsel, agreed with
Kerr's analysis, noting that the NSA's collection of phone records "sure
does appear to run up against several statutory restrictions that Congress
and the President have enacted in order to protect the privacy of our phone
calls and phone records, not least of which is FISA itself[.]"

H. 5371, the LISTEN Act:

      http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.05371:

Laurence H. Tribe, Bush Stomps on Fourth Amendment, Boston Globe:

      http://www.epic.org/redirect/tribe_oped.html

Professor Orin Kerr on the NSA's collection of domestic phone records:

      http://www.epic.org/redirect/kerr_nsa.html

Professor Marty Lederman on the NSA's collection of domestic phone records:

      http://www.epic.org/redirect/lederman_nsa.html


 =======================================================================
[4] Phone Companies Under Fire for Disclosures to NSA
 =======================================================================

News about the NSA's call records spying program has focused increased
attention on the telephone companies who turned over information about
millions of their customers to the federal government. According to the USA
Today report, AT&T, Verizon, and BellSouth all voluntarily handed over
customer records at the NSA's request, although the agency refused to seek a
warrant or court order requiring the disclosure. (BellSouth has since denied
that it participated in the NSA program.) Of the phone companies known to
have been approached, only Qwest insisted that the NSA produce a court
order.

Qwest's decision was likely made not only in light of its customers'
privacy, but also because telecommunications carriers are required by more
than one law to keep phone records private. Carriers are bound not only by
Section 222 of the Communications Act, but also by the Stored Communications
Act, which also makes it illegal for a phone company to give customer
records to the government without a warrant or a court order.

Legal scholars have weighed in on the issue, determining that the program,
as described in initial reports, violates the Stored Communications Act. In
a column posted on FindLaw, University of Washington law professor Anita
Ramasastry said, "Based on what we know now, it seems Qwest was entirely
correct to refuse to comply. [The Stored Communications Act] specifically
forbade it - and the other companies - from doing what the government
asked."

Ramasastry noted that the Stored Communications Act lets individual
consumers sue their telephone companies if their records have been illegally
disclosed. Each violation carries a minimum penalty of $1,000. With over 10
million Americans possibly affected, lawsuits against the telephone
companies could garner rewards in the billions of dollars. Already, class
action suits have been filed against the three implicated companies.

Although Qwest is the only company known to have refused the NSA's request
for records, other telecommunications carriers have stepped forward to say
that they would not acquiesce to a similar request from the government.
Among those carriers are RCN Communications, AOL Time Warner, Comcast, Cox
Communications, Cablevision Systems, Cingular Wireless, EarthLink,
Microsoft, and T-Mobile.

Professor Anita Ramasastry on the NSA program and the Stored Communications
Act:

      http://writ.news.findlaw.com/ramasastry/20060515.html


 =======================================================================
[5] Most Americans Want Investigation of NSA Program
 =======================================================================

By a nearly 2-to-1 margin, 62% to 34%, Americans support immediate
congressional hearings to investigate the NSA's secret phone call record
database program, according to a recent USA Today/Gallup poll. The same poll
showed that 51% of Americans disapprove of the secret domestic surveillance
program.

Two-thirds of those polled say that they are concerned that the program will
lead to the targeting of innocent Americans as terrorism suspects.
About two-thirds expressed concern that the government is conducting more
domestic surveillance than just gathering phone call record data; they are
concerned bank records or Internet use records are also being gathered.

A Newsweek poll also reports that 53% of Americans said the NSA program went
too far in invading peoples' privacy. This poll also showed that 57% of
those responding aid that, in light of the revelations of the program and
other events, the Bush administration has "gone too far in expanding
presidential power."

These two polls differ from a recent ABC News/Washington Post poll, which
found that 51% of those polled supported the phone call record program.
However, the ABC News/Washington Post poll was conducted the day the secret
surveillance program was revealed, while the USA Today/Gallup poll was
conducted a few days after. Also, the USA Today/Gallup poll surveyed 60%
more respondents, 809 adults to the 502 polled by ABC News/Washington Post.
The Newsweek poll surveyed 1007 adults.

USA Today/Gallup Poll:

      http://www.epic.org/redirect/gallup_nsa.html

Newsweek Poll:

      http://www.msnbc.msn.com/id/12771821/site/newsweek/

ABC News/Washington Post Poll:

      http://www.epic.org/redirect/abc_nsa.html

EPIC's Privacy and Public Opinion Page:

      http://www.epic.org/privacy/survey


 =======================================================================
[6] News in Brief
 =======================================================================

Action Item: National Call-In to Protest NSA Surveillance

A coalition of civil liberties groups, including EPIC, is asking for
Americans to call their senators and representatives beginning May 17th to
protest the NSA's secret database of your call records. Everyone is
encouraged to give Congress the chance to monitor and record the public's
displeasure at warrantless domestic surveillance. The groups backing the
call-in include: Alliance for Justice, American Civil Liberties Union, Bill
of Rights Defense Committee, Council on American-Islamic Relations,
Electronic Privacy Information Center, First Amendment Foundation, Friends
Committee on National Legislation, National Association of Criminal Defense
Lawyers, National Coalition Against Oppressive Legislation, National Lawyers
Guild, People For the American Way, and Unitarian Universalist Association
of Congregations.

Information on How to Contact your Legislators:

      http://www.bordc.org/callin_060517.php


EPIC Testifies in Support of SSN Privacy and Security

In testimony before the House Commerce Committee last week, EPIC Executive
Director Marc Rotenberg urged lawmakers to establish limits on the use of
the Social Security number. "The expanded use of the Social Security number
is fueling the increase in identity theft in the United States and placing
the privacy of American citizens are great risk,"
said Mr. Rotenberg. Congress is considering two bills that could provide
stronger privacy protection for consumers.

Hearing: Social Security Numbers in Commerce: Reconciling Beneficial Uses
with Threats to Privacy:

      http://www.epic.org/redirect/ec_ssn_hearing.html

EPIC Testimony (pdf):

      http://www.epic.org/redirect/ec_ssn_epic.html

EPIC's Social Security Numbers page:

      http://www.epic.org/privacy/ssn/


ICANN Rejects .xxx Registry

ICANN, the body that determines Internet domain name policy, rejected an
application by a company to create a .xxx registry. The 9-5 vote against
the plan means that there will be no .xxx top level domain. Many attribute
the opposition to the new domain to conservative influences within the
United States who feel that creating a domain exclusively for adult sites
will legitimize pornography. However, civil liberties advocates have also
argued that creating the .xxx domain would run the risk of easing
censorship, as laws requiring adult sites to use .xxx domains have been
proposed.

ICANN Announcement:

      http://icann.org/announcements/announcement-10may06.htm


Source Warns Reporters Their Calls May be Tracked

ABC News posted a blog item on May 15 claiming that an unnamed senior
federal law enforcement official warned reporters that their calls were
being tracked. The source told investigative reporters at ABC that the
numbers they called were being tracked in order to identify potential leaks.
Other sources stated that phone numbers called by reporters at ABC, the New
York Times, and the Washington Post were being investigated as part of a CIA
leak investigation.

ABC News Post:

      http://blogs.abcnews.com/theblotter/2006/05/federal_source_.html


EPIC Comments on Telemarketer Petition Seeking Use of Auto Dialers

In comments to the Federal Communications Commission, EPIC urged the agency
to reject a petition by ACA International that would allow the use of auto
dialers by debt collectors. The Telephone Consumer Protection Act of 1991
prohibits the use of auto dialers to contact telephone devices. EPIC told
the agency that the incidents of identity theft in the US made the claim by
ACA that it only seeks to collect outstanding debt suspect. EPIC also told
the agency that it correctly interpreted Congressional intent in the rule
promulgated and should not reverse itself on this matter.

EPIC's Comments:

      http://www.epic.org/privacy/telemarketing/fcc_aca_05-11-06.html

EPIC's Telemarketing Page:

      http://www.epic.org/privacy/telemarketing/


 =======================================================================
[7] EPIC Bookstore: Christian Parenti's "The Soft Cage"
 =======================================================================

Christian Parenti. "The Soft Cage:Surveillance in America from Slavery to
the War on Terror." Basic Books, 2004.

http://www.powells.com/partner/24075/biblio/64-0465054854-0

"On a typical day, you might make a call on a cell phone, withdraw money at
an ATM, visit the mall, and make a purchase with a credit card. Each of
these routine transactions leaves a digital trail, logging your movements,
schedules, habits and political beliefs for government agencies and
businesses to access. As cutting-edge historian and journalist Christian
Parenti points out in this urgent and timely book, these everyday intrusions
on privacy, while harmless in themselves, are part of a relentless expansion
of routine surveillance in American life over the last two centuries. Vivid
and chilling, The Soft Cage explores the hidden history of
surveillance--from controlling slaves in the old South to implementing early
criminal justice, tracking immigrants, and even establishing modern social
work. It also explores the role computers play in creating a whole new world
of seemingly benign technologies--such as credit cards, website "cookies,"
electronic toll collection, "data mining." and iris scanners at airports.
With fears of personal and national security at an all-time high, this
ever-growing infrastructure of high-tech voyeurism is shifting the balance
of power between individuals and the state in groundbreaking--and very
dangerous--ways. From closed-circuit television cameras to the Department of
Homeland Security, The Soft Cage offers a compelling, vitally important
history lesson for every American concerned about the expansion of
surveillance into our public and private lives."


================================

EPIC Publications:

"Information Privacy Law: Cases and Materials, Second Edition" Daniel J.
Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price: $98.
http://www.epic.org/redirect/aspen_ipl_casebook.html

This clear, comprehensive introduction to the field of information privacy
law allows instructors to enliven their teaching of fundamental concepts by
addressing both enduring and emerging controversies. The Second Edition
addresses numerous rapidly developing areas of privacy law, including:
identity theft, government data mining,and electronic surveillance law, the
Foreign Intelligence Surveillance Act, intelligence sharing, RFID tags, GPS,
sypware, web bugs, and more.
Information Privacy Law, Second Edition, builds a cohesive foundation for an
exciting course in this rapidly evolving area of law.

================================

"Privacy & Human Rights 2004: An International Survey of Privacy Laws and
Developments" (EPIC 2004). Price: $50.
http://www.epic.org/bookstore/phr2004

This annual report by EPIC and Privacy International provides an overview of
key privacy topics and reviews the state of privacy in over 60 countries
around the world. The report outlines legal protections, new challenges, and
important issues and events relating to privacy.
Privacy & Human Rights 2004 is the most comprehensive report on privacy and
data protection ever published.

================================

"FOIA 2004: Litigation Under the Federal Open Government Laws," Harry
Hammitt, David Sobel and Tiffany Stedman, editors (EPIC 2004). Price:
$40.
http://www.epic.org/bookstore/foia2004

This is the standard reference work covering all aspects of the Freedom of
Information Act, the Privacy Act, the Government in the Sunshine Act, and
the Federal Advisory Committee Act. The 22nd edition fully updates the
manual that lawyers, journalists and researchers have relied on for more
than 25 years. For those who litigate open government cases (or need to
learn how to litigate them), this is an essential reference manual.

================================

"The Public Voice WSIS Sourcebook: Perspectives on the World Summit on the
Information Society" (EPIC 2004). Price: $40.
http://www.epic.org/bookstore/pvsourcebook

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:
$40.
http://www.epic.org/bookstore/pls2004/

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.
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.

================================

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

================================

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:
https://mailman.epic.org/cgi-bin/control/foia_notes


 =======================================================================
[8] Upcoming Conferences and Events
 =======================================================================

RFID Security, Data Protection & Privacy, Health and Safety Issues. European
Commission Infomration Society. May 16-17, 2006.
Brussels, Belgium. For more information:
http://europa.eu.int/information_society/policy/rfid/workshops/index_en.htm

Interoperability, standardisation, governance, and Intellectual Property
Rights. European Commission Infomration Society. June 1, 2006. Brussels,
Belgium. For more information:
http://europa.eu.int/information_society/policy/rfid/workshops/index_en.htm

RFID Frequency spectrum: Requirements and Recommendations. European
Commission Infomration Society. June 2, 2006. Brussels, Belgium. For more
information:
http://europa.eu.int/information_society/policy/rfid/workshops/index_en.htm

Call for papers for the CRCS Workshop 2006: Data Surveillance and Privacy
Protection. Center for Research on Computation and Society. June 3, 2006.
Cambridge, Massachusetts. For more information:
http://crcs.deas.harvard.edu/workshop/2006/index.html

7th Annual Institute on Privacy Law: Evolving Laws and Practices in a
Security-Driven World. Practising Law Institute. June 5-6, San Francisco,
California. June 19-20, New York, New York. July 17-18, Chicago, Illinois.
Live webcast available. For more information:
www.pli.edu

identitymashup: Who Controls and Protects the Digital Me? Berkman Center for
Internet & Society, Harvard Law School. June 19-21, 2006. Cambridge,
Massachusetts. For more information:
http://www.identitymash-up.org/

Infosecurity New York. Reed Exhibitions. September 12-14, 2006. New York,
New York. For more information:
http://www.infosecurityevent.com

34th Research Conference on Communication, Information, and Internet Policy.
Telecommunications Policy Research Conference. September 29-October 1, 2006.
Arlington, Virginia. For more information:
http://www.tprc.org/TPRC06/2006.htm

6th Annual Future of Music Policy Summit. Future of Music Coalition.
October 5-7, 2006. Montreal, Canada. For more information:
http://www.futureofmusic.org/events/summit06/

The IAPP Privacy Academy 2006. International Association of Privacy
Professionals. October 18-20, 2006. Toronto, Ontario, Canada. For more
information:
www.privacyassociation.org

International Conference on Privacy, Security, and Trust (PST 2006).
University of Ontario Institute of Technology. October 20-November 1, 2006.
Markham, Ontario, Canada. For more information:
http://www.businessandit.uoit.ca/pst2006/

BSR 2006 Annual Conference. Business for Social Responsibility. November
7-10, 2006. New York, New York. For more information:
http://www.bsr.org/BSRConferences/index.cfm

CFP2007: Computers, Freedom, and Privacy Conference. Association for
Computing Machinery. May 2007. Montreal, Canada. For more information:
http://www.cfp2007.org.


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 =======================================================================
About EPIC
 =======================================================================

The Electronic Privacy Information Center is a public interest research
center in Washington, DC. It was established in 1994 to focus public
attention on emerging privacy issues such as the Clipper Chip, the Digital
Telephony proposal, national ID cards, medical record privacy, and the
collection and sale of personal information. EPIC publishes the EPIC Alert,
pursues Freedom of Information Act litigation, and conducts policy research.
For more information, see http://www.epic.org or write EPIC, 1718
Connecticut Ave., NW, Suite 200, Washington, DC 20009. +1 202
483 1140 (tel), +1 202 483 1248 (fax).

If you'd like to support the work of the Electronic Privacy Information
Center, contributions are welcome and fully tax-deductible. Checks should
be made out to "EPIC" and sent to 1718 Connecticut Ave., NW, Suite 200,
Washington, DC 20009. Or you can contribute online at:

http://www.epic.org/donate

Your contributions will help support Freedom of Information Act and First
Amendment litigation, strong and effective advocacy for the right of privacy
and efforts to oppose government regulation of encryption and expanding
wiretapping powers.

Thank you for your support.

------------------------- END EPIC Alert 13.10 -------------------------

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