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[CSL]: EPIC Alert 10.23


J Armitage <[log in to unmask]>


Interdisciplinary academic study of Cyber Society <[log in to unmask]>


Fri, 14 Nov 2003 07:53:19 -0000





text/plain (737 lines)

From: EPIC Info
To: [log in to unmask]
Sent: 13/11/03 22:20
Subject: EPIC Alert 10.23

                             E P I C  A l e r t
Volume 10.23                                          November 13, 2003

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


Table of Contents

[1] Report Raises More Questions About Voting Machines
[2] Attorneys General Oppose Spam Legislation
[3] Gore Calls for Repeal of the Patriot Act
[4] Members of Congress Object to New Postal Rule
[5] Courts Issue Wiretapping Decisions
[6] News in Brief
[7] EPIC Bookstore:
[8] Upcoming Conferences and Events

[1] Report Raises More Questions About Voting Machines

The Congressional Research Service (CRS) of the Library of Congress
has presented to Congress a report entitled, "Election Reform and
Electronic Voting Systems: Analysis of Security Issues."  The report
was written in response to rising concern and questions regarding new
electronic voting systems after recent allegations that these systems
use software that is subject to alarming security vulnerabilities. The
report analyzes the controversy surrounding direct recording
electronic (DRE) voting machines - the first fully computerized voting
system - while putting it in the larger context of election practices
and voting machine development.  It details the types of threats and
vulnerabilities that could jeopardize the voting process, as well as
the specific complaints broached by security experts.

While the CRS took pains not to take a position in the debate, it does
recognize that recent analysis demonstrates the existence of security
flaws in DREs, which are cause for concern.  As the report states, "at
least some current DREs clearly exhibit security vulnerabilities.
Those vulnerabilities pose potential . . . risks to the integrity of
elections."  It goes on to list a number of different proposals being
advocated to address these vulnerabilities, including ensuring that
security protocols are followed, improving the standards and
certification process for voting machines, use of open source computer
code, and improvements in verifiability and transparency.  The last
point is one that computer scientists and voting activists have been
pushing for, specifically by requiring voter-verifiable paper
print-outs of vote selection for voters to review.  The CRS stops
short of issuing any recommendations, but does indicate that further
investigation and action should be taken regarding this matter.

Meanwhile, the voting machine debate has only grown fiercer, as
California state officials have halted certification of Diebold
electronic voting machines after allegations surfaced that uncertified
software may have been installed in some of the machines used in one
of its counties.  The state has further required that Diebold pay for
an audit of all the company's voting machines used in the state to
ensure their operability before going ahead with the certification.
And in Fairfax County, Virginia, a judge ordered logs of ten
electronic voting machines made by Advanced Voting Solutions to be
inspected, after machine malfunctioning caused long delays in the
county's vote tallying and raised questions as to voting integrity.
Local Republicans have alleged that glitches in several of the
machines prevented voters from voting for their candidates.

In Pennsylvania, members of the Swarthmore Coalition for the Digital
Commons, a student organization at Swarthmore College, are taking heat
from Diebold for hosting web pages linked to thousands of leaked
Diebold memos that detail flaws in the company's voting machine
software.  The company claims posting such information is a violation
of the Digital Millennium Copyright Act, and has sent out
cease-and-desist letters to force websites and ISP's to take down the
memos, which the college has complied with.  However, the students
have continued to protest, claiming the company is suppressing free
speech. The Electronic Frontier Foundation and Stanford Law School's
Center for Internet and Society have filed a lawsuit requesting a
temporary restraining order against Diebold's cease-and-desist
activities on behalf of the students.

The CRS Report on electronic voting is available at:


The Swarthmore Coalition complaint is available at:


For background information, see EPIC's Voting page at:


[2] Attorneys General Oppose Spam Legislation

A coalition of state attorneys general from around the country signed
a November 4 letter urging Congress to address the many loopholes and
exemptions that plague the CAN-SPAM Act of 2003 before the bill comes
to a vote in the House.

A version of the Act, S. 877, passed in the Senate last month.  The
attorneys general criticize the Senate version, which would preempt
stronger state spam law in several states, for its minimalist
protection of individuals.  As the letter states:  "Its substantive
protections are weak, as are its damage provisions."  The bill
"virtually assure[s] that it will engender litigation, rather than
deter unlawful conduct."

Specifically, the attorneys general point out that the current spam
bill: uses a "standard [of proof that] exceeds what is found in other
consumer protection statutes;" allows spammers to "escape liability
by insulating themselves from knowledge;" "creates a loophole for
spammers who may argue the primary purpose of their email is something
other than advertising;" "forecloses any liability for merchants,
except in extremely limited circumstances;" and opens a loophole
whereby spammers do not have to offer an opt-out option to individuals
for technical reasons (as in the case where the spammer's inbox is

The coalition of state attorneys general includes the legal officers
from:  California, Kansas, Maryland, Nevada, Texas, Vermont, Virginia
and Washington.

More than thirty states have spam laws that may face preemption by the
CAN-SPAM Act.  California's spam law, which will go into effect in
2004 if not preempted, is the toughest in the nation.  It would
require e-mail advertisers to seek permission before sending
advertisements, give individuals strong, enforceable opt-out
capabilities, and allow individuals to sue violators for $1000 per
unwanted e-mail.

The state attorneys general's letter to Congress is available at:


The text of S. 877 is available at:


For background information, see EPIC's Spam page at:


[3] Gore Calls for Repeal of the Patriot Act

On Sunday, November 9, former Vice President Al Gore was welcomed by a
crowd of 3,000 at Constitution Hall in an event sponsored by the
American Constitution Society and moveon.org.  Speaking about freedom
and security, Gore brought the crowd to their feet when he called for
a repeal of the Patriot Act.  He stated, "I believe the Patriot Act
has turned out to be, on balance, a terrible mistake, and that it
became a kind of Tonkin Gulf Resolution conferring Congress' blessing
for this President's assault on civil liberties."

Gore further stated that while the Act does contain a few needed
changes in the law, overall, the Patriot Act is a dangerous extension
of power.  He stated, "I believe strongly that the few good features
of this law should be passed again in a new, smaller law -- but that
the Patriot Act must be repealed."  Gore accused President Bush of
eroding personal freedoms and weakening the nation's security through
"mass violations of civil liberties" in the war on terrorism.  He
chided the administration for its "implicit assumption" that Americans
must give up traditional freedoms in order to be safe from terrorists.
He believes the law has actually done little in terms of security to
protect Americans from terrorism.

The former Vice President criticized the Bush administration for
seeking an overwhelming amount of privacy and secrecy for its own
activities, whilst intruding further into the lives of private
citizens by increasing surveillance and detention powers.  He stated,
"Where civil liberties are concerned, they have taken us much farther
down the road to an intrusive, Big Brother-style government -- toward
the dangers prophesized by George Orwell in his book '1984' -- than
anyone ever thought would have been possible in the United States."

The text of Al Gore's speech is available at:


For background information, see EPIC's Patriot Act page at:


[4] Members of Congress Object to New Postal Rule

Sen. Joseph Lieberman (D-CT) and Reps. Henry Waxman (D-CA), David R.
Obey (D-WI) and John Olver (D-MA) have sent a letter to the U.S.
Postal Service urging the agency to revisit a new "cooperative
mailing" rule, which becomes effective on November 13.  The changes to
the rule would broaden for-profit mailers' access to discounted rates
normally reserved only for charities and non-profits.  It allows
for-profit mailers to send solicitations on behalf of charities at
discounted mailing rates.

The new rule presents a number of risks to the public and charities.
First, it will increase the amount of junk mail that individuals
receive.  Second, it allows for-profit mailers to take advantage of
the public and charities by charging exorbitant rates for the
solicitations.  Third, it encourages for-profit mailers to create
bogus charities that attract donations simply for the enrichment of
the for-profit mailer.  Finally, the new rule jeopardizes legitimate
charities, because the credibility of their solicitations suffer as a
result of the for-profit mailers' activities.

To illustrate these risks, the Members' letter detailed the case of
"Vantage," a commercial mailer that illegally used the nonprofit rates
to send 78 million pieces of mail.  Vantage kept most of the money
raised on behalf of the charities: "According to the government,
Vantage received 76 percent of all money donated to the relevant
nonprofit organizations.  In one example, over a two-year period,
Vantage received approximately 86 percent of the donated money
(Vantage received approximately $20.6 million out of $23.8 million

The cooperative mailing rule is the latest move by the Postal Service
that benefits direct marketers at public expense.  It comes at a time
when the Federal Communications and Federal Trade Commissions are
attempting to curb unwanted telephone and e-mail marketing.  Earlier
in the fall, the Postal Service proposed sender identification
requirements for certain classes of mail that eventually would benefit
bulk mailers by allowing them to track delivery and response to
offers.  The agency also subsidizes bulk mail by giving discounts to
mailers who deliver solicitations in certain formats, while cutting
services to the public by reducing hours and closing post office
locations.  In April 2002, the American Postal Workers Union claimed
that discounts to bulk mailers resulted in a $700 million subsidy to
the marketing industry.  These actions are giving rise to new calls
for a do-not-mail list and for curbs on the list brokerage industry.

The letter from Members of Congress to the Postal Service is available


For background information, see EPIC's Postal Service Privacy page at:


[5] Courts Issue Wiretapping Decisions

Two federal courts have issued opinions relating to federal wiretap
law.  In Glazner v. Glazner, the 11th Circuit (en banc) overturned an
interspousal wiretapping immunity, and a district court in
Massachusetts issued a memorandum in In re Pharmatrak, dealing with
alleged wiretap violations by third party monitoring of website usage.

In an opinion dated October 16, 2003, the Court of Appeals for the
11th Circuit overturned an interspousal exception to federal
wiretapping laws.  The court overruled the case Simpson v. Simpson,
which established an exception within the 11th Circuit to the federal
wiretapping law (Title III) for interspousal wiretaps within the
marital home.  Judge Dubina, writing for the majority, noted that the
text of Title III "makes no distinction between married and unmarried
persons or between spouses and strangers."  The court also noted that
an overwhelming majority of other federal and state courts have
explicitly refused to adopt the Simpson interspousal immunity to Title

A federal district court had previously granted summary judgment to
defendant James Glazner and refused to hold the defendant civilly
liable for placing a recording device on a telephone, under the
interspousal immunity of the Simpson case.  His wife, Elisabeth
Glazner, filed a civil complaint under Title III because the recording
device had recorded conversations between her and third parties
without consent of either party to the conversations.

The Court of Appeals also applied the ruling retroactively, finding
that all states within the 11th Circuit had already criminalized the
defendant's wiretapping activity.  In addition, several states had
also created state civil liability for wiretapping.  None of those
state laws contained exceptions for interspousal wiretapping. The two
dissents in the decision disagreed only with the decision to apply the
ruling retroactively, but agreed with the central holding of
overturning the Simpson interspousal wiretapping immunity.

Separately, a Massachusetts federal district court issued a memorandum
finding that defendants Pharmatrak and several pharmaceutical
companies lacked sufficient intent for liability under the Electronic
Communications Privacy Act of 1986 (ECPA).  The defendant Pharmatrak
sold NETcompare, a web site traffic monitoring service, to the
defendant pharmaceutical companies, which collected information about
users of the web sites of the pharmaceutical companies.  NETcompare
collected personal information on some users.  The class action
plaintiffs were consumer users of the pharmaceutical company web
sites, alleging that the defendants secretly intercepted and accessed
personal information through the use of computer "cookies" and other

The district court noted that the Court of Appeals had defined a high
standard of intent under the ECPA that required that the "conduct or
causing of result must have been the person's conscious objective." To
support a finding of no intent, the court relied on the fact that an
expert found only 232 individual profiles were available from 18.7
million users; the majority of personal information had been collected
through programming errors on the part of other parties; and the
defendants' lack of knowledge of the personal information.

The 11th Circuit en banc decision in Glazner v. Glazner is available at:


The district court memorandum in In re Pharmatrak is available at:


For background information, see EPIC's Wiretapping page at:


[6] News in Brief


EPIC has posted on its website 100 consumer complaints to the Federal
Communications Commission regarding telemarketing activity.  The
complaints, which were obtained under the Freedom of Information Act
and do not reveal the identities of the telemarketing victims, clearly
demonstrate the need for a national Do-Not-Call Registry.  The
complaints fall roughly into three categories: telemarketers who
ignore or frustrate individuals' requests to stop calling;
telemarketers who become abusive or harass individuals; and the
frustration that individuals experience as a result of autodialer and
prerecorded voice calls. These complaints demonstrate that the new
telemarketing regulations are a rational response to serious abuses in
the telemarketing industry.

The telemarketing complaints are available at:


For background information, see EPIC's Do-Not-Call Registry Timeline


For background information, see EPIC's Telemarketing page at:



The Federal Communications Commission announced that it will hold a
forum on Voice over Internet Protocol (VoIP) issues on December 1,
2003, and that it will then issue a Notice of Public Rule Making
(NPRM) "to inquire about the migration of voice services to IP-based
networks and gather public comment on the appropriate regulatory
environment for these services".  The FCC has invited individuals from
a variety of backgrounds in industry and government to present
information on issues related to VoIP.  The hearing will discuss
regulation and classification questions, including those raised in the
Vonage v. Minnesota Public Utilities Commission case.  The discussion
will be open to public comment after which time the FCC intends to
follow with a Report and Order on the VoIP issues raised in the

The FCC new release on the hearing is available at:


Chairman Michael Powell's letter to Sen. Ron Wyden re: the hearing is
available at:


The Court decision in Vonage v. Minnesota Public Utilities Commission
is available at:



The Federal Communications Commission approved a mandate to include an
anti-piracy mechanism called a broadcast flag in digital broadcast
television.  The flag serves as a signal to digital TV reception
equipment to limit the "indiscriminate" redistribution of the
broadcast content.  In the Report and Order, the FCC permitted the use
of the flag at the discretion of the broadcaster.  The FCC also
established compliance rules for manufacturers of electronic
equipment, who will have to include flag detectors in their consumer
products.  Commissioners Copps and Adelstein dissented in part from
the order, voicing concerns over the scope of the flag protection,
which includes non-copyrightable content and content in the public
domain, such as news and political debate, as well as with lack of
consumer privacy safeguards.

The FCC news release is available at:


The FCC Report and Order in the Matter of Digital Broadcast Content
Protection is available at:


Commissioner Michael Copps' statement is available at:


Commissioner Jonathan Adelstein's statement is available at:



A new study by the World Privacy Foundation found individuals seeking
employment are subject to a host of new privacy risks including sale
of their personal information.  The study, authored by Pam Dixon of the
newly-formed World Privacy Forum, focuses on over 50 job search web
sites and in-store kiosks that collect application information
electronically.  Serious questions are raised regarding compliance with
Equal Employment Opportunity laws.  Title VII prohibits employment
discrimination based on race, color, religion, sex or national origin;
employers must inform applicants that supplying this information is
voluntary.  However, several job seeking sites do not make this
disclosure, and seem to require the applicant to disclose the

Dixon found some positive developments in the online job search field.
These included more anonymous access to job web site listings, and
quick responses to privacy questions sent to the companies.  However,
many job sites require registration for access to information needed
to send a job application, and an increase was found in the use of
persistent third-party cookies.  Dixon makes a series of
recommendations in the report, including a call upon the Federal Trade
Commission and Equal Employment Opportunity Commission to investigate
uses of job seeker data and compliance with federal law.

The 2003 Job Search Privacy Study is available at:


For background information, see EPIC's Workplace Privacy page at:


[7] EPIC Bookstore: Credit Card Nation

Dr. Robert D. Manning, Credit Card Nation, The Consequences of
America's Addiction to Credit (Basic Books, 2000).


As Congress considers amendments to our country's first federal
privacy law, the Fair Credit Reporting Act, there is almost no
discourse about the problems presented by credit card debt in our
nation.  Even the Brookings Institution avoided a critical analysis,
and instead knelt at the foot of the industry, praising it and coining
the phrase "the miracle of instant credit." (Vatican sources later
informed us that Brookings nominated Visa and MasterCard for
canonization.)  The orthodoxy that credit could only do good deeds
prevailed through the entire debate, and critics of companies that
routinely lend their victuals to the improvident at 20 percent
interest, compounded, somehow seemed unpatriotic.

Indeed, the credit industry has been successful in creating a cultural
sea change in the United States, linking access to credit with
American values, argues Robert Manning, a professor at Rochester
Institute of Technology.  The industry has shifted individuals' values
from a puritan work and save ethic, to one where many manage
high-interest debt.  The danger is that many Americans are at
heightened risk of personal bankruptcy.  Credit card companies have
also sought safe haven in states with weak consumer protection laws,
allowing them to circumvent regulations designed to shield individuals
against usury.  As a result, common life events such as divorce,
losing a job, or undergoing medical treatment can easily plunge a
family into serious trouble.  Identity theft also is exacerbated, as
the industry has resisted laws that would help prevent issuance of
credit to impostors.

Portions of the book addressing credit marketing on college campuses
are compelling.  The credit industry markets heavily to college
students, who often have no credit history and no income. They also
provide more cards and higher credit lines if the student "maxes out"
accounts.  This business model actually works because students will
"juggle" credit by using their educational loans to pay the monthly
balances.  The result is that a large number of students enter the
workforce under high-interest debt.  Meanwhile, credit companies
whitewash the problems by pumping funding into industry-friendly think
tanks, such as Georgetown University's Credit Research Center.

Manning's book presents a well-footnoted and cogently-argued case
against one of the most powerful industries in the world.  I highly
recommend it, and after reading it, I smote mammon itself by cutting
up all of my credit cards.

--Chris Jay Hoofnagle


EPIC Publications:

"The Privacy Law Sourcebook 2002: United States Law, International
Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2002).
Price: $40. http://www.epic.org/bookstore/pls2002/

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.


"FOIA 2002: Litigation Under the Federal Open Government Laws," Harry
Hammitt, David Sobel and Mark Zaid, editors (EPIC 2002). Price: $40.

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 21st
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.


"Privacy & Human Rights 2003: An International Survey of Privacy Laws
and Developments" (EPIC 2002). Price: $35.

This survey, by EPIC and Privacy International, reviews the state of
privacy in over fifty-five countries around the world.  The survey
examines a wide range of privacy issues including data protection,
passenger profiling, genetic databases, video surveillance, ID systems
and freedom of information laws.


"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.


"The Consumer Law Sourcebook 2000: Electronic Commerce and the Global
Economy," Sarah Andrews, editor (EPIC 2000). Price: $40.

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/bookstore/crypto00&/

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

        "EPIC Bookshelf" at Powell's Books

[8] Upcoming Conferences and Events

PATRIOT Acts I and II: The New Assault on Liberty?  Next Independent
Policy Forum.  November 13, 2003.  Oakland, CA.  For more information:

RFID Privacy Workshop.  Massachusetts Institute of Technology.
November 15, 2003.  Boston, Massachusetts.  For more information:

Trespassing in Cyberspace.  Justice Talking - National Public Radio.
November 18, 2003.  Philadelphia, PA.  For more information:

American Society of Access Professionals Workshop.  November 18-19,
2003.  St. Louis, Missouri.  For more information:

In the Aftermath of September 11: Defending Civil Liberties in the
Nation's Capital.  UDC David A. Clarker School of Law.  November 21,
2003.  Washington, DC.  For more information:

Are You being Watched? Security vs. Privacy.  Science and Technology
Policy Program at NAS.  November 21, 2003.  Washington, DC.  For more
information: call (202) 334-3570.

Claim Democracy Conference.  The Center for Voting and Democracy.
November 22-23.  Washington, DC.  For more information:

Media Freedoms and the Arab World.  The Arab Archives Institute.
December 6-8, 2003. Amman, Jordan.  For more information: email
[log in to unmask] or see

WHOLES - A Multiple View of Individual Privacy in a Networked World.
Swedish Institute of Computer Science. January 30-31, 2004.  Stockholm,
Sweden.  For more information: http://www.sics.se/privacy/wholes2004.

O'Reilly Emerging Technology Conference.  February 9-12, 2004.  San
Diego, CA.  For more information: http://conferences.oreilly.com/etech.

Securing Privacy in the Internet Age.  Stanford Law School.  March
13-14, 2004.  Palo Alto, CA.  For more information:

International Conference on Data Privacy and Security in a Global
Society.  Wessex Institute.  May 11-13, 2004.  Skiathos, Greece.  For
more information:

O'Reilly Open Source Convention.  July 26-30, 2004.  Portland, OR. For
more information: http://conferences.oreilly.com/oscon.

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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,
e-mail [log in to unmask], 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:


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 10.23 ----------------------


Distributed through Cyber-Society-Live [CSL]: CSL is a moderated discussion
list made up of people who are interested in the interdisciplinary academic
study of Cyber Society in all its manifestations.To join the list please visit:

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