Friday, December 23, 2005

Alito and the Right to Privacy, Part 5

Documents released on Friday included a memo Judge Alito wrote in 1985 in which he recommended to the Solicitor General that the government "should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled."

Charles Fried, the Solicitor General, in 1985, wrote of the memo, "I need hardly say how sensitive this material is, and ask that it have no wider circulation."

Alito also wrote:

"While abortion involves essentially the same medical choice as other surgery, it involves in addition a moral choice, because the woman contemplating a first trimester abortion is given absolute and unreviewable authority over the future of the fetus. Should not then the woman be given relevant and objective information bearing on this choice? Roe took from the state lawmakers the authority to make this choice and gave it to the pregnant woman. Does it not follow that the woman contemplating abortion have at her disposal at least some of the same sort of information that we would want lawmakers to consider?"

Mr. Alito said his graduated approach was better than a "frontal assault on Roe v. Wade," because "It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open."

Alito also wrote that the Administration could try "to provide greater recognition of the states' interest in protecting the unborn throughout pregnancy, or to dispel in part the mystical faith in the attending physician that supports Roe and the subsequent cases."

This story was first broken by the The Associated Press.

Thursday, December 22, 2005

FTC Issues Anti-Spam Report

The FTC's new 116 page anti-spam report "Effectiveness and Enforcement of the CAN-SPAM Act," is the FTC's first assessment since the CAN SPAM law took effect. The report discusses the FTC's anti-spam initiatives, what still needs to be done, and advocates news laws.

The report recommends that more private sector anti-spam efforts are needed.

The FTC is also recommending enactment the "Undertaking Spam, Spyware, And
Fraud Enforcement With Enforcers Beyond Borders Act of 2005 (US SAFE WEB Act
of 2005)," to crack down on foreign spam.

Administration Defends Wiretapping Actions

The U.S. Attorney General Alberto Gonzales has defended the warrantless U.S. wiretapping plan, approved by the President. He says they are legal because the Congressional resolution authorizing the use of force gave the President that power.

"Our position is that authorization to use force, which was passed by the Congress in the days following September 11, constitutes that other authorization. . . . to engage in this kind of signals intelligence," Gonzales

He also said, "One might argue, now wait a minute, there's nothing in the authorization to use force that specifically mentions electronic surveillance," but said "We believe Congress has authorized this kind of surveillance."

The 1978 Foreign Intelligence Surveillance Act, appears to make illegal for the U.S. it conduct surveillance on U.S. citizens in the United States without court approval.

But AG Gonzales said that the "FISA very important in the war on terror, but it doesn't provide the speed and the agility that we need in all circumstances to deal with this new kind of threat."

Monday, December 19, 2005

Surveillance Without a Warrant

Surveilllance without a warrant has been in the news recently. Much of the discussion centers on surveillance allowed under the Foreign Intelligence Surveillance Act. Below is text from the law relating to warrantless surveillance.

§ 1802

§ 1802. Electronic surveillance authorization WITHOUT COURT ORDER; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court.


(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title;


(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;


(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title;


if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.

(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—

(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title;


(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers;


(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.

The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

Thursday, December 15, 2005

DirecTV to Pay Record "Do Not Call" Fine

DirecTV has agreeed to pay a $5,335,000 fine to the Federal Trade Commission over allegations it called numbers on the national "Do Not Call" list.

The penalty may not seem high by U.S. coporate standards, but it is the largest fine every paid for a "Do Not Call" violation, and, in fact, is the largest civil penalty the FTC has ever obtained in enforcing a consumer protection law. (Anti-trust violation penalties, on the other hand, can be higher.)

The FTC, which enforces regulations related to the Do Not Call list, charges that DirecTV and companies it hired have called numbers on the list since October of 2003.

“This multimillion dollar penalty drives home a simple point: Sellers are on the hook for calls placed on their behalf. The Do Not Call Rule applies to all players in the marketing chain, including retailers and their telemarketers," said the FTC Chairman Deborah Platt Majoras.

The FTC filed complaints against DirecTV and five telemarketing firms. Two of those companies have also settled.

The FTC, through the DOJ, alleged that DirecTV called people on the list, and provided substantial assistance and support to a telemarketer, Global Satellite, even though it knew, or consciously avoided knowing, that Global Satellite was calling numbers on the Do Not Call list. The complaint also alleged that Global Satellite, directly or through another entity – abandoned calls to consumers by failing to put a live sales representative on the line within two seconds after the called consumer completes his or her greeting, as required under the law.

DirectTV must also terminate any marketer of its products who they know or should know is making cold calls to consumers without express, written authorization from DirecTV.. The proposed settlement also prohibits the company from assisting and facilitating any telemarketer it knows or consciously avoids knowing is violating the Telemarketing Sales Rule. The proposed settlement also imposes monitoring requirements on DirecTV.

The FTC also got orders against two telemarketers, Communication Concepts and American Communications, for $25,000 and $50,000. Judgments of $205,000 against Communications Concepts and $746,300 against American Communications were suspended based on those companies’ inability to pay.

Litigation continues against certain individual officers of the some telemarketing companies.

Tuesday, December 13, 2005

Is Tommy Thompson Going to Get Chipped?

I covered the news that former HHS head Tommy Thompson was planning on getting a VeriChip medical chip implanted back on August 18, when the news first broke. (

I must say, I was pretty surprised.

According to an account from WorldNetDaily, he still hasn't gotten around to getting one.

Back then, he said he would "Absolutely, without a doubt," get chipped.

Apparently Liz McIntyre and Katherine Albrecht, the authors of who "Spychips" (described here previously) found out from the company that Thompson has been "too busy" to get chipped.

But there seems to be some pressure for Thompson to get one, since the company is about to go public. ""He said it on live television. We look forward to setting a firm date in accordance to his schedule and other commitments."

Looks like he might have to bite the bullet on this one.

One the plus side for Thompson, Hackensack University Medical Center has become the first hospital to put the chip-reading technology in its emergency room.

So, if he's ever in Hackensack, he'll be in great shape.

Monday, December 12, 2005

Acxiom Names Global Privacy Officer

Acxiom has announced several moves to strengthen its privacy practices, including naming Jennifer Barrett (formerly the Chief Privacy Officer) to the position of Global Privacy Officer.

Other appointments:

Sheila Colclasure -- Chief Privacy Officer for North and South America

Barbara Sullivan -- Chief Privacy Officer for Asia

Sachiko Scheuing -- Chief Privacy Officer for Europe.

"Acxiom has always taken a proactive approach towards ensuring consumer privacy," said Acxiom executive Charles D. Morgan. "Because we do business in many countries, each with unique laws and regulations, it is critical that we have the most knowledgeable, dedicated team of global privacy leaders in place, and these appointments help to ensure that."

Jennifer Barrett will oversee Acxiom's global public policy, privacy and information practices.

"Privacy is a critical concern impacting Acxiom's delivery of technology and information products. Our privacy principles guide our success around the globe each day. Our privacy leadership team is committed to the protection of consumer information by promoting policies within the industry that offer individuals the choices and protection to which they are entitled, while preserving the flow of information that provides the many conveniences consumers have come to expect," said Barrett.

Wednesday, December 07, 2005

Lawyers Exempt from GLB

Attorneys, breathe a sigh of relief.

The D.C. Circuit has ruled that lawyers do not have to follow the privacy regulations of Gramm-Leach-Bliley.

The Federal Trade Commission had tried to apply to law to the legal profession, which would require them to send out privacy notices. GLB applies to financial institutions.

Judge David Sentelle wrote:

"When we examine a scheme of the length, detail and intricacy of the one before us, we find it difficult to believe that Congress ... intended to undertake the regulation of the profession of law — a profession never before regulated by 'federal functional regulators' — and never mentioned in the statute," Sentelle wrote.

"To find this interpretation deference-worthy, we would have to conclude that Congress not only had hidden a rather large elephant in a rather obscure mousehole, but had buried the ambiguity in which the pachyderm lurks beneath an incredibly deep mound of specificity, none of which bears the footprints of the beast or any indication that Congress even suspected its presence," the judge said.

Douglas Ginsburg, the Chief Judge of the DC Circuit, agreed. The other judge and new U.S. Chief Justice, John Roberts, did not take part in the decision.

Tuesday, December 06, 2005

State Shredding Laws

With North Carolina's document destruction law in the news, I was looking which states have laws requiring destruction of records containing personal information prior to disposal. Since the standard method is shredding, sometimes these laws are called "shredding laws."

So far I have:

* California

* Montana

* New Jersey

* North Carolina

* Texas

There may be others, but I haven't seen a list anywhere else. Of course, I'll add more as I find them.

Monday, December 05, 2005

DSW Will Create Security System

Designer Shoe Warehouse, which had a significant security breach earlier this year, has reached a settlement with the FTC.

They agreed to create a comprehensive security system, and to system checked by independent auditors every other year for 20 years.

This could be an indication of the kind of settlement the government may try to reach with other companies which experience a security breach that results in some customers being victimized by identity theft.