ISPLA Current Legislative News

ISPLA Supports CCW Reciprocity

Fri, 25 Nov 2011 23:39:19 GMT

HR 822, the National Right-to-Carry Reciprocity Act of 2011-STRONGLY SUPPORTED By ISPLA!!!

Sec. 926D. Reciprocity for the carrying of certain concealed firearms

(a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)), a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, and who is carrying a valid identification document containing a photograph of the person, and a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State, other than the State of residence of the person, that--

(1) has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms; or

(2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.

(b) The possession or carrying of a concealed handgun in a State under this section shall be subject to the same conditions and limitations, except as to eligibility to possess or carry, imposed by or under Federal or State law or the law of a political subdivision of a State, that apply to the possession or carrying of a concealed handgun by residents of the State or political subdivision who are licensed by the State or political subdivision to do so, or not prohibited by the State from doing so.

(c) In subsection (a), the term `identification document' means a document made or issued by or under the authority of the United States Government, a State, or a political subdivision of a State which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals

BACKGROUND AND NEED FOR THE LEGISLATION

I. THE CURRENT STATUS OF CONCEALED CARRY LAWS

In a 2008 opinion striking down Washington D.C.'s district-wide handgun ban, the U.S. Supreme Court recognized `that the Second Amendment conferred an individual right to keep and bear arms' that stems in large part from the right to protect oneself, as well as `one's home and family,' from harm. See District of Columbia v. Heller, 554

U.S.

570 (2008). Specifically, the Heller decision found that the right to self defense, as opposed to the creation of a militia or other principles, `was the central component of the right itself.' Id.at 599 (emphasis in original). More recently, in McDonald v. City of Chicago, 561 U.S. XX, 130 S.Ct. 3020 (2010), the Supreme Court clarified that the Second Amendment rights discussed in Heller also extend to the states.

Forty-nine states currently permit concealed carry in some manner. Thirty-five states have `shall issue' permit laws, which generally require states to issue a concealed carry permit or license to people who meet the legal requirements. Ten states--plus the Virgin Islands, Puerto Rico, and

Guam--have `may issue' or discretionary permit laws that are administered in varying ways. Four states--Vermont, Arizona, Alaska, and Wyoming--permit the carrying of a concealed weapon without any permit or license (although Arizona, Alaska, and Wyomingalso have a permitting process in place). Illinois, the District of Columbia, the Northern Marianas Islands, and American Samoaprohibit concealed carry.

Twenty-five states allow non-residents to apply for a concealed carry permit or license, and

Vermontallows non-residents to carry without a permit while in the state. In most instances, the process for permitting in-state and out-of-state persons is the same. However, some states apply a stricter permitting process to out-of-state residents, including requiring that the person have a valid concealed carry permit from their home state.

A majority of states currently extend reciprocal concealed carry privileges to varying degrees to the residents of other states. Fourteen states grant outright recognition of all valid permits issued by another state. Ten states automatically recognize permits from other states that also recognize their permits. Sixteen states will recognize another state's concealed carry permit if certain conditions are met. Only ten states do not recognize a concealed carry permit issued by another state in any circumstance, although many of these states do allow non-residents to apply for permits to carry a concealed handgun in the state.

Under current Federal law, certain active-duty and retired law enforcement officers are permitted to carry concealed firearms across state lines, even while off duty.

II. EFFECTS OF CONCEALED CARRY ON PUBLIC SAFETY

While there is disagreement over the benefits of carrying concealed weapons, many believe that robust concealed carry laws ultimately deter crime by making criminal acts much more risky and costly for potential law breakers. Statistics show a connection between concealed carry laws and a decrease in violent crime rates. The National Rifle Association estimates, based on data from the FBI's Annual Uniform Crime Report, that `right-to-carry' states (i.e., those that widely allow concealed carry) have 22 percent lower total violent crime rates, 30 percent lower murder rates, 46 percent lower robbery rates, and 12 percent lower aggravated assault rates, as compared to the rest of the country.

A study of the effect of concealed carry laws on crime rates, published in 1997, estimated that `[w]hen state concealed handgun laws went into effect in a county, murders fell by 7.65 percent, and rapes and aggravated assaults fell by 5 and 7 percent.'

III. NATIONAL RECIPROCITY UNDER H.R. 822

H.R. 822 would allow persons with valid state-issued concealed firearm permits or licenses to carry a concealed firearm in all other states that also issue concealed firearm permits or licenses, or in any other state that does not generally prohibit the carrying of concealed firearms. This legislation would not create a national licensing scheme, but rather would require states that currently permit people to carry concealed firearms to recognize other states' valid concealed carry permits.

H.R. 822, as clarified by the substitute manager's amendment, does not affect a state's ability to set eligibility requirements for its own residents. The bill instead makes clear that a person cannot use this Federal grant of reciprocity to carry a concealed weapon in his or her own state of residence under another state's permit or license, unless their own state's laws permit this. H.R. 822 also does not impact state laws governing how concealed firearms are possessed or carried within the various states. All state, federal, and local laws regarding the possession and carrying of a concealed handgun that would apply to a resident of a state will also apply in equal force to a non-resident. A non-resident who is able to show both a valid identification document and a valid concealed carry permit or license will be permitted to carry a concealed firearm in the same manner as a resident holding a general-use permit or license.

H.R. 822 addresses concerns regarding law enforcement's ability to confirm the validity of an out-of-state concealed carry permit by requiring that a person show both a valid government-issued identification document, such as a license or passport, and a valid concealed carry license or permit. The states are also currently able to verify the validity of out-of-state concealed permits. The Nlets system, formerly the National Law Enforcement Teletype System, permits federal, state, and local law enforcement to query handgun permit information for 12 states that have elected to participate in the program. Law enforcement can also use Nlets to send inquiries regarding concealed carry permits directly to out-of-state agencies that issue permits but do not participate in the Nlets concealed carry program. Forty states currently grant some form of reciprocity for out-of-state concealed carry permits and all of the states are subject to the Firearms Owners` Protection Act's Safe Passage Provision, codified at 18 U.S.C. Sec. 926A, which provides a process by which non-residents can transport lawful firearms through states where they could not otherwise carry the firearm. Accordingly, law enforcement is already very familiar with handling and verifying firearms carried by non-residents.

HEARINGS

The Committee's Subcommittee on Crime, Terrorism, and Homeland Security held 1 day of hearings on H.R. 822 on September 13, 2011. Testimony was received from Joyce Lee Malcolm, Professor, George Mason University School of Law; David Kopel, Research Director, Independence Institute and Adjunct Professor, Denver University Sturm College of Law; and Philadelphia Police Commissioner Charles Ramsey, with additional material submitted by the International Association of Chiefs of Police, Mayors Against Illegal Guns, the Minnesota Chiefs of Police, and the Virginia Association of Chiefs of Police.

DISSENTING VIEWS

INTRODUCTION

H.R. 822, the `National Right-to-Carry Reciprocity Act of 2011,' is a dangerous bill that would override the laws of almost every state by obliging each to accept concealed handgun carry permits from every other state, even if the permit holder would not be allowed to carry or even possess a handgun in the state where he or she is traveling. The law tramples federalism and endangers public safety.

The harmful impact of this legislation is without doubt. For example, some states require an individual to show that he or she knows how to use a firearm or meet minimum training standards before obtaining a concealed carry license. Under H.R. 822, however, these states would be forced to allow out-of-state visitors to carry concealed weapons even if they do not meet that state's concealed licensing standards concerning basic gun safety or training requirements. During consideration of the bill, numerous amendments were offered by the Minority to address these serious flaws, but none were adopted. Members of the Majority blocked amendments to preserve the application of state laws concerning eligibility to carry concealed weapons within their borders, as well as other amendments that would have allowed states to prevent concealed carrying of handguns by those with out of state permits with convictions for offenses such as misdemeanor assault on police officers and misdemeanor sex offenses against children.

Recognizing the danger that it would pose to our citizens and to law enforcement officers across this country, this bill is opposed by more than 550 mayors (represented by Mayors Against Illegal Guns), major police organizations, domestic violence abuse victim advocates, prosecutors, and faith-based organizations.

Police groups opposing the bill included the International Association of Chiefs of Police; Major Cities Chiefs Association; the Police Foundation, National Latino Peace Officers Association; and National Organization of Black Law Enforcement Executives. Among the state and local police organizations and individuals opposing the bill are the California Police Chiefs Association; the Colorado Association of Chiefs of Police; Colorado Springs Police Chief Richard Myers; Boston Police Commissioner Edward Davis; Las Vegas Metropolitan Police Department Sheriff Douglas Gillespie; the Virginia Association of Chiefs of Police; Minneapolis Chief of Police Timothy Dolan; Duluth Police Chief Gordon Ramsay; Burlington North Carolina Chief of Police Michael Williams; New York City Police Commissioner Raymond W. Kelly; and Portland Maine Chief of Police James E. Craig. Domestic violence abuse victims’ advocates oppose this bill, including the National Network to End Domestic Violence (a coalition of 56 domestic violence victim advocacy groups) and the Minnesota Domestic Abuse Project. Prosecutors opposing the bill, include the Association of Prosecuting Attorneys; the American Bar Association; Minneapolis Office of the City Attorney Susan Segal; Bronx County (NY) District Attorney Robert Johnson; Kings County (NY) District Attorney Charles Hynes; Queens County (NY) District Attorney Richard A. Brown; Richmond County (NY) District Attorney Daniel Donovan, Jr.; New York's Special Narcotics Prosecutor Bridget G. Brennan; New York County (NY) District Attorney Robert Morris Morgenthau; New Jersey Attorney General Anne Milgram; Delaware Acting Attorney General Richard Gebelein; Iowa Attorney General Tom Miller; Illinois Attorney General Lisa Madigan; Colorado Association of Chiefs of Police; Broomfield (CO) Police Chief Thomas Deland; Colorado Springs (CO) Police Chief Richard Myers; and Wheat Ridge (CO) Police Chief Daniel G. Brennan. Faith-based organizations opposing the bill include Faiths United, a coalition of more than 30 religious organizations. Our Lives, Our Laws: People Who Care, http://www.ourlivesourlaws.org/people-who-care.]

For these reasons, and those stated below, we urge our colleagues to oppose this seriously flawed legislation and respectfully dissent.

DESCRIPTION AND BACKGROUND

H.R. 822 disregards state laws by forcing states to allow the carrying of loaded, concealed weapons by any individual permitted to carry concealed weapons in another state. Section 2 of H.R. 822, as amended by the Committee, sets forth the bill's operative provisions and makes clear that the intent of this legislation is to override the will of the states with regard to who may carry concealed handguns within their borders. It provides that an individual who is not prohibited by federal law from possessing firearms and who is carrying a valid identification document containing a photograph of such individual and a valid concealed carry permit issued by a state, may carry a concealed handgun in another state if the other state has a statute that allows the issuance of concealed carry permits or does not prohibit the carrying of concealed firearms. Section 2(b) provides that an individual carrying a concealed handgun in a state must be permitted to carry the gun subject to `the same conditions and limitations, except as to eligibility to possess or carry,' imposed by federal, state or local law that apply to the possession or carrying of a concealed handgun by residents of that state.

In effect, the bill would reduce all states to the lowest common denominator of concealed carry laws, and would subject citizens to unnecessary public safety risks, contrary to the judgments made by the individual states. As Philadelphia Police Commissioner Charles Ramsey stated, `We have a uniquely diverse nation. What works where I currently serve as Commissioner in Philadelphia, and the Commonwealth of Pennsylvania, does not work for our neighbor across the river in

New Jersey. Our laws for obtaining a permit are vastly different, based on well-debated decisions made at the state level.'

The Courts have found that States are within their lawful constitutional power to set minimum public safety standards for carrying concealed guns. The Supreme Court has stated that even prohibitions on concealed carrying are permissible. In

District of Columbiav. Heller, a case in which the Supreme Court held that the District's handgun ban was unconstitutional, Justice Scalia, writing for the majority, specified that the Court's holding did not `cast doubt' on other gun laws and noted that `[w]e identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.' In discussing long-understood limitations on the right to keep and bear arms, Justice Scalia noted that `the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.'

The Court thus reaffirmed its ruling in Robertson v. Baldwin that `the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.'

Since Heller, courts throughout the

United States

have rejected the argument that there is a right to carry concealed guns in public. In Kachalsky v. Cacace, the court upheld New York's restrictions on concealed carry, and stated:

This emphasis on the Second Amendment's protection of the right to keep and bear arms for the purpose of `self-defense in the home' permeates the Court's decision and forms the basis for its holding--which, despite the Court's broad analysis of the Second Amendment's text and historical underpinnings, is actually quite narrow.

The language of Heller makes clear that the Court recognized `not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose' but rather a much narrower right--namely the `right of law-abiding, responsible citizens to use arms in defense of hearth and home.

U.S.

v. Masciandaro, the Fourth Circuit rejected the claim that there is a constitutional right to possess a loaded handgun in a car in a national park. The court explained, `This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.'

The Fourth Circuit cautioned further that the danger posed by guns `would rise exponentially as one moved the right from the home to the public square. If ever there was an occasion for restraint, this would seem to be it. There is much to be said for a course of simple caution.'

Many other courts have similarly reached this conclusion.

In sum, the courts are in accord that there is no constitutional right to carry loaded guns outside the home, and certainly not to carry concealed guns in public spaces. State laws governing such conduct, directly bearing on questions of public safety, should therefore not be nullified by Congress.

See, e.g, People v. Aguillar, 944 N.E. 2d 816 (Ill. App. Ct. 2011) (stating `the decisions in Heller and McDonald were limited to interpreting the second amendment's protection of the right to possess handguns in the home, not the right to possess handguns outside the home'); Gonzalez v. Village of W. Milwaukee, No. 09cv0384, 2010 WL 1904977 (E.D. Wis. May 11, 2010) (stating that the `Supreme Court has never held that the Second Amendment protects the carrying of guns outside the home'); United States v. Hart, 725 F. Supp. 2d. 56 (D. Mass. 2010) (`Heller does not hold, nor even suggest, that concealed weapons laws are unconstitutional.'); In re Factor, 2010 WL 1753307 (N.J. Super. Ct. App. Div. Apr. 21, 2010) (stating that the `United States Supreme Court has not held or even implied that the Second Amendment prohibits laws that restrict carrying of concealed weapons'); Dorr v. Weber, 2010 WL 1976743 (N.D. Iowa, May 18, 2010) (stating that a `right to carry a concealed weapon under the Second Amendment has not been recognized to date'); Teng v. Town of Kensington, No. 09cv8jl, 2010 WL 596526 (D.N.H. Feb. 17, 2010) (`Given that Heller refers to outright `prohibition on carrying concealed weapons' as `presumptively lawful,' far lesser restrictions of the sort imposed here clearly do not violate the Second Amendment.'); United States v. Tooley, 717 F. Supp. 2d 580 (S.D.W.Va. 2010) (`Additionally, possession of a firearm outside of the home or for purposes other than self-defense in the home are not within the `core' of the Second Amendment right as defined by Heller.'); Riddick v. United States, 995 A.2d 212 (D.C. 2010) (stating that Second Amendment does not `compel the District to license a resident to carry and possess a handgun outside the confines of his home, however broadly defined'); State v. Knight, 218 P.3d 1177 (Kan. Ct. App. 2009) (`It is clear that the [Heller] Court was drawing a narrow line regarding the violations related solely to use of a handgun in the home for self-defense purposes. [The defendant's] argument, that Heller conferred on an individual the right to carry a concealed firearm, is unpersuasive.').

CONCERNS WITH H.R. 822

I. IMPOSING NATIONAL CONCEALED CARRY RECIPROCITY INFRINGES STATES' RIGHTS TO PROTECT THEIR CITIZENS FROM GUN VIOLENCE

A. ÌH.R. 822 Would

Override StateLaws Regarding Who Is Eligible To Carry A Concealed, Loaded Gun

H.R.822 eviscerates the authority of states to set their own eligibility standards for who may carry a concealed, loaded gun in public. State officials, law enforcement, and legislators are in the best position to decide crime-fighting policies for their respective jurisdictions. For example, rural areas may not fit the needs of big cities and vice-versa.

States often set standards for carrying handguns on city streets that include criteria that exceed the requirement that an applicant pass a federal background check. For instance, many states, including those with strong gun rights traditions, have enacted laws that prohibit concealed handgun carrying by certain categories of individuals. These include teenagers, alcohol abusers, and individuals who pose a danger to others, or those who have not completed basic safety training. Some states also include individuals who have been convicted of certain violent misdemeanors, providing an even greater degree of protection than the prohibition in Federal law against gun possession by felons.

The following identifies the various state requirements on applicants for concealed carry permits:

Thirty-five states require gun safety training, of which require live fire drills or other proof of competency with a firearm. The following states require training: Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Maine, Michigan, Minnesota, Missouri, Montana, North Carolina, Nebraska, New Jersey, New Mexico, Nevada, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Wisconsin, West Virginia, and

Wyoming. In addition, Virginia and Maryland explicitly state that internet-based training can satisfy their requirement and North Dakotarequires certain permittees only to pass an open book exam to satisfy its requirement.

The following states require live fire training: Arkansas, Delaware, Hawaii, Kansas, Kentucky, Michigan, Minnesota, Missouri, North Carolina, New Jersey, New Mexico, Ohio, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, and West Virginia.

Thirty-eight states prohibit individuals convicted of certain misdemeanor crimes from carrying concealed firearms, including Pennsylvania, which bars carrying by those who have been convicted of stalking, impersonating a law enforcement officer and other dangerous misdemeanor offenses. Research supports these restrictions. For example, one study found handgun buyers who have been convicted of just one misdemeanor are almost five times as likely to be convicted of a serious violent crime as handgun buyers with no criminal record.

Garen Wintemute et al., Prior misdemeanor convictions as a risk factor for later violent and firearm-related criminal activity among authorized purchasers of handguns, J. Am. Medical Ass'n 1998, 280:2083-2087.

Thirty-six states prohibit youths age 20 and under from obtaining a concealed carry permit, including Colorado and

Missouri.

The following states prohibit carrying by people under the age of 21: Alaska, Arkansas, Arizona, Colorado, Connecticut, Florida,

Georgia

, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, North Carolina, Nebraska, New Jersey, New Mexico, Nevada, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.

Twenty-nine states prohibit alcohol abusers from obtaining a concealed carry permit, including

South Carolina, which prevents `habitual drunkard[s]' from carrying guns.

The following states prohibit carrying by alcohol abusers: Alabama, Arkansas, Colorado, Florida,

Georgia

, Hawaii, Iowa, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Maryland, Mississippi, North Carolina, New Jersey, New Mexico, Nevada, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming.

Twenty-four states grant law enforcement agencies discretion to approve or deny carry permits to an applicant who appears to be dangerous, including Alabama, which allows sheriffs to grant or deny licenses based on whether `it appears that the applicant . . . has any . . . proper reason for carrying a pistol, and [whether] he or she is a suitable person to be so licensed.

Ten states grant broad discretion to approve or deny concealed carry permits (Alabama, California, Connecticut, Delaware, Hawaii, Massachusetts, Maryland, New Jersey, New York, and Rhode Island); 14 states granted limited discretion to do so (Arkansas, Colorado, Iowa, Indiana, Maine, Michigan, Minnesota, Missouri, Montana, New Hampshire, Oregon, Pennsylvania, Utah, and Wyoming).

Some states have voluntarily entered into reciprocity agreements with other states. These agreements vary from state to state. Ten states honor concealed carry permits issued in any other state and three states allow carrying by nonresidents without a permit. These states are the following: Iowa, Idaho, Indiana, Kentucky, Michigan, Missouri, Oklahoma, South Dakota, Tennessee, and

Utah. Nine states, however, choose not to recognize any out-of-state permits. These states are California, Connecticut, Hawaii, Massachusetts, Maryland, New Jersey, New York, Oregon, and Rhode Island. And, 27 states recognize permits only from certain other states, typically states with equivalent or higher standards. The breakdown of these states is as follows: Alabama (23 states); Arkansas (37 states); Colorado (29 states); Delaware (18 states); Florida (35 states); Georgia (23 states); Kansas (23 states); Louisiana (36 states); Maine (6 states); Minnesota (15 states); Mississippi (25 states); Montana (40 states); North Carolina (34 states); North Dakota (35 states); Nebraska (35 states); New Hampshire (21 states); New Mexico (19 states); Nevada (15 states); Ohio (21 states); Pennsylvania (25 states); South Carolina (17 states); Texas (40 states); Virginia (27 states); Washington (11 states); Wisconsin; West Virginia (21 states); and Wyoming (33 states). Note that Massachusetts allows non-residents with valid out-of-state carry licenses to carry concealed firearms in Massachusettsin limited circumstances- hunting, attending an organized firearms collectors' exhibition, or the person is participating in a firearms competition.

Some states have recently tightened the requirements for their residents to obtain out-of-state carry permits and cancelled reciprocity agreements with states that no longer meet minimum standards. For example, New Mexico and Nevada both stopped recognizing concealed carry permits issued by

Utahbecause it does not include live-fire instruction as part of its training requirement. Nevada also stopped recognizing carry permits issued by Florida, which only requires permits to be renewed every 7 years.

H.R. 822, however, would override these State determinations and would force States to recognize all concealed carry permits regardless of the issuing State's standards.

H.R. 822's infringement on states' rights is underscored by the substitute amendment, offered by Congressman Trent Franks (R-AZ), which the Committee adopted. The amendment exempts the possession and carrying of concealed handguns under the bill from state conditions and limitations `as to eligibility to possess and carry.

Unfortunately, by a vote of 12 to 18, the Committee failed to adopt the amendment offered by Ranking Minority Member John Conyers to eliminate this specific provision from the substitute amendment. As a result, this legislation would override all of these carefully deliberated state and local policies, reducing concealed carry permitting to a new federal lowest common denominator.

Many states have determined that persons convicted of certain misdemeanors should not be allowed to carry concealed handguns within their borders. This is their considered judgment based on debate within their legislatures. As one study shows, misdemeanants who buy handguns are more likely to commit future crimes than other handgun buyers:

Buyers who had at least one misdemeanor conviction were 7.5 times as likely to be charged with a new offense as buyers who had no record.

The more past misdemeanors a gun buyer had, the more likely he or she would be charged with a further offense after the purchase.

Men who had one violent misdemeanor conviction were 9.3 times as likely to be charged with a new offense as men who had no record.

Men with two or more violent misdemeanor convictions who bought a handgun were 15 times as likely to be charged with a serious violent crime as men with no record who bought handguns.

Misdemeanor sex offense against a child: Federal law prohibits possession of guns by felons, including people convicted of felony sex crimes, but not by individuals convicted of misdemeanor sex crimes. Some states have nonetheless decided to deny permits to carry concealed, loaded guns to individuals convicted of dangerous misdemeanors, including sex crimes against children. For example,

New Yorkprohibits people convicted of certain sex crime from carrying or possessing a gun, including the misdemeanor sex crimes of sexual misconduct, forcible touching, sexual abuse in the third degree, and sexual abuse in the second degree.

In addition, 14 states require concealed carry permit applicants to demonstrate good moral character, including--for example--a record free of criminal convictions and 10 states grant law enforcement broad discretion to deny permits to carry concealed, loaded guns based on an applicant's record or other factors.

Bruce Hulme, ISPLA Director of Government Affairs www.ISPLA.org

The Definitive Organization Lobbying For Investigative and Security Professionals

Federal Court Records Being Destroyed

Tue, 16 Aug 2011 14:02:51 GMT

Click here to read the Administrative Office news release: FEDERAL REGISTER ANNOUNCEMENT.pdf

ISPLA has learned of a shocking development within the US District Court system that will eliminate the ability of professional investigators to search federal court records created before 1995. The implications of this new policy are far reaching and potentially devastating to the people we represent.

The Administrative Office (AO) of the United States has announced that on April 1, 2011, it will begin destroying archived records of federal district court cases which were filed after 1969 and which were archived during the period 1970 to 1995. For example, more than 25,000 cases from the Western District of Michigan alone will be destroyed. In addition, myriad other federal records are also slated to shredded, including records of the Federal Maritime Commission, Department of the Interior, Department of Justice, and the US Bankruptcy Court.

When a case filed in the district court has been closed, the file is maintained by the District Court for a period of time, but it is ultimately transferred to the National Archives. To reduce the cost of preserving these records, the AO has decided to discard approximately 80% of them. The AO has no plans to preserve these records electronically. Only the Judgments and the docket sheets of the discarded cases will be kept.

Imagine the consequences of this proposed action. Background checks on litigants, potential business partners and prospective employees will be seriously hampered; critical appellate information will be erased;

The wanton destruction of an entire generation of public records is utterly unacceptable and action must be taken to prohibit this from occurring.

Since there was no public comment period, ISPLA is preparing a response to the National Archive and Records Administration and will represent the profession in objecting to this poorly conceived policy.

SAFE Data Act and Phone Hacking Fall-out

Wed, 20 Jul 2011 13:28:08 GMT

Today, Representative Mary Bono Mack [R-CA-45], Subcommittee Chair of House Energy and Commerce Committee is expected to mark up her H.R. 2577, the Secure and Fortify Electronic (SAFE) Data Act which will require companies to notify law enforcement of security data breaches without "unreasonable delay" and　 notify each person affected by such breaches within 48 hours. Her bill would preempt a patchwork of state data breach security laws, setting one national standard. As written, it is the best one presently being offered from the perspective of investigative and security professionals. It does not reference pretexting, as others do. ISPLA and other like-minded stakeholders are lobbying to ensure that any onerous amendments offered to this bill fail. We also note that our NCISS-PAC colleagues have recently contributed to the re-election campaign of Congresswoman Mary Bono Mack, their first and only PAC contribution since forming their PAC last year.

As a follow-up to ISPLA's ongoing comments about the phone hacking scandal in the U.K. a further example of how that scandal has implications here in the U.S. and elsewhere is reflected in a letter written yesterday by Representative Bono to telecommunication industry groups. She posed a number of questions to which she seeks answers. She wrote:

"We have all seen the headlines about the rapidly spreading phone hacking and police bribery scandal in the United Kingdom. According to press reports, a growing number of individuals in the United Kingdom are accused of unscrupulous and potentially illegal activities. Understanding that the events in the United Kingdom have not been connected to any activity within the United States, I nonetheless believe it’s critically important to ask American industries involved in all parts of the communications stream of commerce – from device manufacturers to fixed wire and wireless providers – whether they are satisfied that sufficient safeguards are in place to prevent similar privacy breaches here in the United States. As a result, I respectfully request an answer to the following questions no later than August 2, 2011.

1. As communications through voice over internet protocol (VOIP), smartphones and other mobile devices become more integrated in our daily lives, do you expect to see a rise in phone hacking here in the United States (involving both personal conversations and voicemails) as criminals search for new ways to steal valuable information such as credit card numbers, bank account numbers and Social Security numbers?

2. At present, what safeguards do your member companies employ to ensure that American consumers are adequately protected against the type of phone hacking scandal currently being investigated in the United Kingdom?

3. In the wake of this scandal, do your member companies believe it is necessary to adopt new practices to ensure that consumers in the United States are better protected in the future?

4. Do you believe existing laws and regulations adequately protect consumers in the United States from phone hacking and similar privacy breaches?

5. Approximately how many phone hacking incidents are reported by your member companies in a year? Are the number of incidents growing or declining?

6. As a matter of practice, are phone hacking incidents, or suspected incidents, reported to law enforcement agencies and regulatory agencies?

7. From a technological standpoint, how difficult is it to hack into cell phones or other mobile devices?

8. What steps can consumers take on their own to better protect their personally identifiable information when communicating through either fixed wire or wireless devices?"

ISPLA's belief is that this issue involving the Murdoch media empire has the potential for creating regulatory and legislative ramifications having detrimental consequences for professional investigators. It will adversely affect some of the proactive work ISPLA has been undertaking these past two years in Washington.

To support the ongoing work of Investigative & Security Professionals for Legislative Action please visit www.ISPLA.org

To donate to ISPLA-PAC only personal check or personal credit card accounts may be used.

Thank you.

Bruce Hulme

ISPLA Director of Government Affairs

235 N. Pine Street

Lansing, Michigan 48933

Tel: (212) 962 4054

ISPLA Update: Phone Hacking Scandal by the Numbers

Wed, 20 Jul 2011 13:27:08 GMT

The phone hacking episode rocking the Murdoch Empire and widely covered by
the media in the UK and Europe has finally crossed the Atlantic. With the
permission of the investigative reporting organization ProPublica, below is
an item by Braden Goyette. There is no doubt that increased media coverage
of this scandal will provide fodder for proposed privacy legislation,
including anti-pretexting legislation. The FBI has opened a preliminary
investigation here in the U.S. at the request of members of Congress. We
can expect that there will be call for hearings -- similar to what is
presently taking place by Parliament. The criminal acts of a private
investigator in Great Britain may also have been requested by Newscorp of an
American PI regarding the deaths of 9/11 victims as well.

The Phone Hacking Scandal By The Numbers

The U.K.'s phone hacking scandal seems to keep getting bigger, with more
revelations, resignations and arrests. Here's a quick breakdown of some
important stats in the scandal so far. For background on how the scandal
developed, see our reader's guide [1] and our collection of related
MuckReads [2].

The number of people who have been arrested [3] in the current
investigation: 10. (It's worth noting that an arrest means something a bit
different in the U.K. [4] than it does in the U.S.)

The number of people who have resigned over the scandal [5]: 7, including 4
top News International executives and 2 Scotland Yard officers.

The estimated amount of money Rebekah Brooks reportedly received as a
severance package [6]: 3.5 million pounds ($5.6 million)

Number of Murdoch sons [7] who has admitted to misleading parliament: 1

The number of people on Scotland Yard's press team [8] who used to work for
News International: 10, out of a total 45 staffers

Amount of email investigators suspect was deleted by a News International
executive: according to The Guardian, about half a terabyte's worth,
"equivalent to 500 editions of Encyclopedia Britannica [9]."

Number of pages of information about the phone hacking scandal that were
sitting in a Scotland Yard evidence room [10]: 11,000. The documents were
seized from the home of the private investigator who hacked phones for NotW,
Glenn Mulcaire, during the first phone hacking investigation.

Number of hours the head of Scotland Yard's first phone hacking
investigation, John Yates, spent reviewing the documents [11] before
deciding they weren't worth looking into: 8

Number of years before that evidence was thoroughly examined: almost 4

Number of phone numbers [12] listed in those documents: 5,000 landlines and
4,000 cell phones

Number of phone hacking victims prosecutors initially identified in 2007: 8

Estimated number of total phone hacking victims [13]: about 4,000

The number of phone hacking victims who've been notified so far [10]: 170

Number of detectives now working on the investigation: 45

The number of phone hacking victims Scotland Yard is now contacting per
week: 30

Estimated time it will take Scotland Yard to contact all phone hacking
victims: 2 years

The value of private investigator Glenn Mulcaire's original year-long
contract with NotW [14], for providing "information and research": 104,988
pounds ($169,167 at today's exchange rate)

The amount of money that News International has reportedly paid [15] to
settle lawsuits from phone hacking victims [16]: at least 2 million pounds
($3.2 million). The documents in these cases were sealed, and some of the
plaintiffs agreed to stay quiet.

The amount of money that News of the World allegedly spent bribing Scotland
Yard officers [17]: 100,000 pounds ($161,130), paid to up to five officers.

Number of News of the World whistleblowers found dead [18]: 1. Sean Hoare,
the first News of the World journalist who came out and said that former
Editor Andy Coulson knew about phone hacking, was found dead in his home
yesterday. Hoare previously had drug and alcohol problems and police said
that while his death is so far "unexplained" it's not "suspicious."

The number of people working at News of the World [19] when it closed: 200

Number of people pied in the face [20] during today's parliamentary hearing:
1

See anything we missed? Send your favorite stats about the phone hacking
scandal to braden.goyette@propublica.org [21].

Stay tuned as more developments unfold.

Bruce Hulme
ISPLA Director of Government Affairs
www.ISPLA.org

S 1011, HR 1841 & HR 1895 Updates!

Tue, 24 May 2011 01:09:40 GMT

S 1011, the Electronic Communications Privacy Act Amendments of 2011, which was finally introduced May 17 by Senator Patrick J. Leahy [D-VT], is a 25-page bill that ISPLA is presently reviewing. It is an extensive amendment to the ECPA since it was first introduced in 1986. However, that law did not address social networking sites and smartphones. The Senator, who is chairman of the Senate Judiciary Committee, stated: "Updating this law to reflect the realities of our time is essential to ensuring that our federal privacy laws keep pace with new technologies and the new threats to our security." Although this bill is directed primarily at law enforcement, ISPLA will be watching how Section 2713 – Location tracking of electronic communication devices or use of such devices to acquire geolocation information might in the future impact private sector investigations in some areas.

Comments by Senator Leahy on the Senate floor included the recent data breaches involving Sony and Epsilon that impacted the privacy of millions of American consumers. “We are also learning that smartphones and other new mobile technologies may be using and storing our location and other sensitive information posing other new risks to privacy. When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy. Updating this law to reflect the realities of our time is essential to ensuring that our Federal privacy laws keep pace with new technologies and the new threats to our security.”

Under the current ECPA law, a single e-mail could be subject to as many a four different levels of privacy protections, depending upon where it is stored and when it was sent. The proposed bill gets rid of the so-called “180-day rule'' and “replaces this confusing mosaic with one clear legal standard for the protection of the content of e-mails and other electronic communications.” Under the proposed bill, service providers are expressly prohibited from disclosing customer content and the government must obtain a search warrant, based on probable cause, to compel a service provider to disclose the content of a customer's electronic communications to the government.

The bill also provides consumer privacy protections for location information that is collected, used, or stored by service providers, smartphones, or other mobile technologies. It will require that the government obtain either a search warrant, or a court order under the Foreign Intelligence Surveillance Act, in order to access or use an individual's smartphone or other electronic communications device to obtain geolocation information. Senator Leahy stated there are well-balanced exceptions to the warrant requirement if the government needs to obtain location information to address an immediate threat to safety or national security, or when there is user consent or a call for emergency services. The bill also requires that the government obtain a search warrant in order to obtain contemporaneous, real-time, location information from a provider. There is an exception to the warrant requirement for emergency calls for service.

To address the role of new technologies in the changing mission of law enforcement, the bill also provides new tools to law enforcement to fight crime. It clarifies the authority under the ECPA for the government to temporarily delay notifying an individual of that fact the fact that the government has accessed the contents of their electronic communications, to protect the integrity of a government investigation. The bill also gives new authority to the government to delay notification in order to protect national security.

The ECPA Amendments Act, according to Leahy, strengthens the tools available in ECPA to protect national security and the security of computer networks. It creates a new limited exception to the nondisclosure requirements under the ECPA, so that a service provider can voluntarily disclose content to the government that is pertinent to addressing a cyberattack. To protect privacy and civil liberties, the bill also requires that, among other things, the Attorney General and the Secretary of Homeland Security submit an annual report to Congress detailing the number of accounts from which their departments received voluntary disclosures under this new cybersecurity exception.

S 1011 defines the kinds of subscriber records that the Federal Bureau of Investigations may obtain from a provider in connection with a counterintelligence investigation. This reform will help to make the process for obtaining this information more certain and efficient for both the government and providers. The Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our Nation's thriving technology sector. “The balanced reforms in this bill will help ensure that our Federal privacy laws address the many dangers to personal privacy posed by the rapid advances in electronic communications technologies” stated Senator Leahy.

H. R. 1841, the Data Accountability and Trust Act (DATA) of 2011, introduced May 11 by Representatives Cliff Stearns [R-FL-6] and Jim Matheson [D-UT-2] seeks to protect consumers by requiring reasonable security policies and procedures to protect computerized data containing personal information, and to provide for nationwide notice in the event of a security breach. This 17-page bill has been referred to the Committee on Energy and Commerce. If passed, it will seriously affect information brokers. Some investigative colleagues fear that investigators fall under this definition, even if they are not customarily viewed as being information brokers. ISPLA takes exception to that view, especially when one carefully reviews the Congressional intent and various specific provisions of the proposed bill. The following is the bill’s definition of an information broker.

INFORMATION BROKER- The term `information broker' means a commercial entity whose business is to collect, assemble, or maintain personal information concerning individuals who are not current or former customers of such entity in order to sell such information or provide access to such information to any nonaffiliated third party in exchange for consideration, whether such collection, assembly, or maintenance of personal information is performed by the information broker directly, or by contract or subcontract with any other entity.

LIMITATIONS- An information broker may limit the access to information required under subparagraph (B) in the following circumstances:

(I) If access of the individual to the information is limited by law or legally recognized privilege.

(II) If the information is used for a legitimate governmental or fraud prevention purpose that would be compromised by such access.

H.R. 1895, the Do Not Track Kids Act of 2011 a 32-page bill to amend the “Children’s Online Privacy Protection Act of 1998 (COPPA)” was introduced on May 13 by Representatives Edward J. Markey [D-MA-7] and Joe Barton [R-TX-6], Co-Chairman of the Bi-Partisan Congressional Privacy Caucus.

This bill will extend, enhance and update the provisions relating to the collection, use and disclosure of children’s personal information and establishes new protections for personal information of children and teens. Currently, COPPA covers children age 12 and younger, and it requires operators of commercial websites and online services directed to children 12 and younger to abide by various privacy safeguards as they collect, use, or disclose personal information about kids.

“Over the past several months, there has been a deluge of data leaks, breaches, and other exposures of children’s personal information,” said Rep. Markey. “When it comes to kids and their use of the Internet, it is particularly important that stringent privacy protections are applied so that children do not have their online behavior tracked or their personal information collected or disclosed.

“Since 1998 when I was the House author of COPPA, children are more likely to be poked, liked and friended online than on the playground. Now is the time for new legislation to protect kids and prevent them from being tracked online.

“The 'Do Not Track Kids Act of 2011' will ensure that kids are protected and that sensitive personal information isn't collected or used without express permission,” said Markey. “I have long believed that consumers – not corporations – should have control over their personal information, and this legislation will protect parents and kids from the dangers that can lurk in the online environment. The Internet is like online oxygen for many kids – they can’t live without it. We want kids to have Internet access; we also want to ensure there are appropriate safeguards. I look forward to working with Rep. Barton and my colleagues to move this much-needed legislation forward.”

“Today, I am proud reach across the aisle and join with Rep. Markey to officially introduce the Do Not Track Kids Act of 2011,” said Rep. Barton. “I believe that every American has the right to choose what they believe to be best for themselves and their children. But often times in our digital world that right is lost because your personal information is collected and stored without you ever knowing.

“This bill is a first step in putting consumers back in control. It lets you know what types of information are being collected about your kids online and how it is being used. If you don’t like what you learn – you will now have the authority to change it with just the click of a mouse.”

“It is unacceptable for a website operator to act as a dictator with no consequences, and this bill ensures this type of behavior will not be directed toward our children,” said Rep. Barton. “I look forward to the next steps in the legislative process, and I look forward to future proposals to ensure protections of all Americans.”

The “Do Not Track Kids Act of 2011” strengthens privacy protections for children and teens by:

Requiring online companies to explain the types of personal information collected, how that information is used and disclosed, and the policies for collection of personal information;

Requiring online companies to obtain parental consent for collection of children’s personal information;

Prohibiting online companies from using personal information of children and teens for targeted marketing purposes;

Establishing a “Digital Marketing Bill of Rights for Teens” that limits the collection of personal information of teens, including geolocation information of children and teens;

Creating an “Eraser Button” for parents and children by requiring companies to permit users to eliminate publicly available personal information content when technologically feasible.

“We commend Representatives Markey and Barton for listening to the concerns of families and taking action by introducing a ‘Do Not Track Kids’ privacy bill that places kids and teens front and center,” said Jim Steyer, CEO of Common Sense Media. “As it stands now, the nation’s tech privacy policies are outdated, as they do not include protections for mobile and geolocation technologies. Kids and teens are being tracked even more than adults, and marketed to without permission while companies make huge profits off the data – and that is wrong. It is promising to see leaders of both parties come together to address these issues on behalf of children and families, and we hope the bill continues to gain bipartisan support.”

“Today’s teenagers are growing up in a ubiquitous digital media environment, where mobile devices, social networks, virtual reality, interactive games, and online video have become ingrained in their personal and social experience,” said Dr. Kathryn C. Montgomery, Ph.D., Professor, School of Communication American University. “Members of this generation are, in many ways, living their lives online. But while youth have embraced new media, they cannot be expected to understand the subtle, often covert techniques that digital marketers use to track and influence their behaviors. Many teens go online to seek help for their personal problems, to explore their own identities, to find support groups for handling emotional crises in their lives, and sometimes to talk about things they do not feel comfortable or safe discussing with their own parents. Yet, this increased reliance on the Internet subjects them to wholesale data collection and profiling. By instituting fair information practices for teens now, we can help ensure they are treated with respect in the rapidly growing digital marketplace.”

“Today’s youth and their parents confront a pervasive and unaccountable digital data collection system,” said Jeff Chester, Executive Director, Center for Digital Democracy. “When young people are online, including on mobile phones, playing games, or using social media, they are subject to a wide-range of stealth practices that can threaten their privacy and health. Congressmen Ed Markey and Joe Barton’s Do-Not-Track Kids bill will create much-needed safeguards for both children and adolescents. It will usher in a new Internet era for America’s youth, where their privacy is protected and marketers cannot take unfair advantage of them.”

“In today’s world many children spend as much time on the Internet as they do on the playground,” said Jim Pierce, President, Childhelp. “The Markey-Barton Do Not Track Kids Bill is an important first step in protecting our children from predatory tracking – giving them the freedom to be children not consumers.”

ISPLA notes through its state legislative tracking system that similar legislation was offered in California in February and recent amendments to that state’s bill have now stricken reference to children and made their proposed legislation applicable to all citizens of all ages of

California. From our past dealings with the offices of both Markey and Barton, we find that they are very much in the camp of privacy advocates and that any legislation offered by them should be carefully scrutinized. Both congressmen are very influential on the House Energy and Commerce Committee, before which much privacy legislation reviewed.

Bruce Hulme, ISPLA Director of Government Affairs

To support the proactive work of ISPLA from State Capitols to the Nation’s Capitol please visit www.ISPLA.org

“Doing more than just keeping the profession informed”

New Bill HR 1707 Data Accountability and Trust Act

Thu, 05 May 2011 15:20:41 GMT

A long-awaited bill has finally been introduced by Rep. Bobby L. Rush [D-IL-1] relating to information brokers and security breaches. The 38-page HR 1707, the "Data Accountability and Trust Act" introduced May 4 pertains to information brokers and is cosponsored by Rep. Joe Barton [R-TX-1] and Rep. Janice D. Schakowsky [D-IL-9]. All three sponsors are members of the House Committee on Energy and Commerce to which this bill has been referred.

Some of the pertinent areas of the bill which ISPLA has concerns are contained in portions of the language which follows:

(b) Special Requirements for Information Brokers-

(1) SUBMISSION OF POLICIES TO THE FTC- The regulations promulgated under subsection (a) shall require each information broker to submit its security policies to the Commission in conjunction with a notification of a breach of security under section 3 or upon request of the Commission.

(2) POST-BREACH AUDIT- For any information broker required to provide notification under section 3, the Commission may conduct audits of the information security practices of such information broker, or require the information broker to conduct independent audits of such practices (by an independent auditor who has not audited such information broker's security practices during the preceding 5 years).

(3) ACCURACY OF AND INDIVIDUAL ACCESS TO PERSONAL INFORMATION-

(A) ACCURACY-

(i) IN GENERAL- Each information broker shall establish reasonable procedures to assure the maximum possible accuracy of the personal information it collects, assembles, or maintains, and any other information it collects, assembles, or maintains that specifically identifies an individual, other than information which merely identifies an individual's name or address.

(ii) LIMITED EXCEPTION FOR FRAUD DATABASES- The requirement in clause (i) shall not prevent the collection or maintenance of information that may be inaccurate with respect to a particular individual when that information is being collected or maintained solely--

(I) for the purpose of indicating whether there may be a discrepancy or irregularity in the personal information that is associated with an individual; and

(II) to help identify, or authenticate the identity of, an individual, or to protect against or investigate fraud or other unlawful conduct.

(B) CONSUMER ACCESS TO INFORMATION-

(i) ACCESS- Each information broker shall--

(I) provide to each individual whose personal information it maintains, at the individual's request at least 1 time per year and at no cost to the individual, and after verifying the identity of such individual, a means for the individual to review any personal information regarding such individual maintained by the information broker and any other information maintained by the information broker that specifically identifies such individual, other than information which merely identifies an individual's name or address; and

(II) place a conspicuous notice on its Internet website (if the information broker maintains such a website) instructing individuals how to request access to the information required to be provided under subclause (I), and, as applicable, how to express a preference with respect to the use of personal information for marketing purposes under clause (iii).

(ii) DISPUTED INFORMATION- Whenever an individual whose information the information broker maintains makes a written request disputing the accuracy of any such information, the information broker, after verifying the identity of the individual making such request and unless there are reasonable grounds to believe such request is frivolous or irrelevant, shall--

(I) correct any inaccuracy; or

(II)(aa) in the case of information that is public record information, inform the individual of the source of the information, and, if reasonably available, where a request for correction may be directed and, if the individual provides proof that the public record has been corrected or that the information broker was reporting the information incorrectly, correct the inaccuracy in the information broker's records; or

(bb) in the case of information that is non-public information, note the information that is disputed, including the individual's statement disputing such information, and take reasonable steps to independently verify such information under the procedures outlined in subparagraph (A) if such information can be independently verified.

(iii) ALTERNATIVE PROCEDURE FOR CERTAIN MARKETING INFORMATION- In accordance with regulations issued under clause (v), an information broker that maintains any information described in clause (i) which is used, shared, or sold by such information broker for marketing purposes, may, in lieu of complying with the access and dispute requirements set forth in clauses (i) and (ii), provide each individual whose information it maintains with a reasonable means of expressing a preference not to have his or her information used for such purposes. If the individual expresses such a preference, the information broker may not use, share, or sell the individual's information for marketing purposes.

(iv) LIMITATIONS- An information broker may limit the access to information required under clause (i)(I) and is not required to provide notice to individuals as required under clause (i)(II) in the following circumstances:

(I) If access of the individual to the information is limited by law or legally recognized privilege.

(II) If the information is used for a legitimate governmental or fraud prevention purpose that would be compromised by such access.

(III) If the information consists of a published media record, unless that record has been included in a report about an individual shared with a third party.

(v) RULEMAKING- Not later than 1 year after the date of the enactment of this Act, the Commission shall promulgate regulations under section 553 of title 5, United States Code, to carry out this paragraph and to facilitate the purposes of this Act. In addition, the Commission shall issue regulations, as necessary, under section 553 of title 5, United States Code, on the scope of the application of the limitations in clause (iv), including any additional circumstances in which an information broker may limit access to information under such clause that the Commission determines to be appropriate.

(C) FCRA REGULATED PERSONS- Any information broker who is engaged in activities subject to the Fair Credit Reporting Act and who is in compliance with sections 609, 610, and 611 of such Act (15 U.S.C. 1681g; 1681h; 1681i) with respect to information subject to such Act, shall be deemed to be in compliance with this paragraph with respect to such information.

(4) REQUIREMENT OF AUDIT LOG OF ACCESSED AND TRANSMITTED INFORMATION- Not later than 1 year after the date of the enactment of this Act, the Commission shall promulgate regulations under section 553 of title 5, United States Code, to require information brokers to establish measures which facilitate the auditing or retracing of any internal or external access to, or transmissions of, any data containing personal information collected, assembled, or maintained by such information broker.

(5) PROHIBITION ON PRETEXTING BY INFORMATION BROKERS-

(A) PROHIBITION ON OBTAINING PERSONAL INFORMATION BY FALSE PRETENSES- It shall be unlawful for an information broker to obtain or attempt to obtain, or cause to be disclosed or attempt to cause to be disclosed to any person, personal information or any other information relating to any person by--

(i) making a false, fictitious, or fraudulent statement or representation to any person; or

(ii) providing any document or other information to any person that the information broker knows or should know to be forged, counterfeit, lost, stolen, or fraudulently obtained, or to contain a false, fictitious, or fraudulent statement or representation.

(B) PROHIBITION ON SOLICITATION TO OBTAIN PERSONAL INFORMATION UNDER FALSE PRETENSES- It shall be unlawful for an information broker to request a person to obtain personal information or any other information relating to any other person, if the information broker knew or should have known that the person to whom such a request is made will obtain or attempt to obtain such information in the manner described in subparagraph (A).

(c) Exemption for Certain Service Providers- Nothing in this section shall apply to a service provider for any electronic communication by a third party that is transmitted, routed, or stored in intermediate or transient storage by such service provider.

In this Act, the following definitions apply:

(1) BREACH OF SECURITY- The term `breach of security' means unauthorized access to or acquisition of data in electronic form containing personal information.

(2) COMMISSION- The term `Commission' means the Federal Trade Commission.

(3) DATA IN ELECTRONIC FORM- The term `data in electronic form' means any data stored electronically or digitally on any computer system or other database and includes recordable tapes and other mass storage devices.

(4) ENCRYPTION- The term `encryption' means the protection of data in electronic form in storage or in transit using an encryption technology that has been adopted by an established standards setting body which renders such data indecipherable in the absence of associated cryptographic keys necessary to enable decryption of such data. Such encryption must include appropriate management and safeguards of such keys to protect the integrity of the encryption.

(5) IDENTITY THEFT- The term `identity theft' means the unauthorized use of another person's personal information for the purpose of engaging in commercial transactions under the name of such other person.

(6) INFORMATION BROKER- The term `information broker'--

(A) means a commercial entity whose business is to collect, assemble, or maintain personal information concerning individuals who are not current or former customers of such entity in order to sell such information or provide access to such information to any nonaffiliated third party in exchange for consideration, whether such collection, assembly, or maintenance of personal information is performed by the information broker directly, or by contract or subcontract with any other entity; and

(B) does not include a commercial entity to the extent that such entity processes information collected by and received from a nonaffiliated third party concerning individuals who are current or former customers or employees of such third party to enable such third party to (1) provide benefits for its employees or (2) directly transact business with its customers.

(7) PERSONAL INFORMATION-

(A) DEFINITION- The term `personal information' means an individual's first name or initial and last name, or address, or phone number, in combination with any 1 or more of the following data elements for that individual:

(i) Social Security number.

(ii) Driver's license number, passport number, military identification number, or other similar number issued on a government document used to verify identity.

(iii) Financial account number, or credit or debit card number, and any required security code, access code, or password that is necessary to permit access to an individual's financial account.

(B) MODIFIED DEFINITION BY RULEMAKING- The Commission may, by rule promulgated under section 553 of title 5, United States Code, modify the definition of `personal information' under subparagraph (A)--

(i) for the purpose of section 2 to the extent that such modification will not unreasonably impede interstate commerce, and will accomplish the purposes of this Act; or

(ii) for the purpose of section 3, to the extent that such modification is necessary to accommodate changes in technology or practices, will not unreasonably impede interstate commerce, and will accomplish the purposes of this Act.

(8) PUBLIC RECORD INFORMATION- The term `public record information' means information about an individual which has been obtained originally from records of a Federal, State, or local government entity that are available for public inspection.

(9) NON-PUBLIC INFORMATION- The term `non-public information' means information about an individual that is of a private nature and neither available to the general public nor obtained from a public record.

(10) SERVICE PROVIDER- The term `service provider' means an entity that provides to a user transmission, routing, intermediate and transient storage, or connections to its system or network, for electronic communications, between or among points specified by such user of material of the user's choosing, without modification to the content of the material as sent or received. Any such entity shall be treated as a service provider under this Act only to the extent that it is engaged in the provision of such transmission, routing, intermediate and transient storage or connections.

Although HR 1707 would preempt state information security laws, there are still avenues for State attorneys general to direct their activity, such as consumer protection laws. ISPLA will be working to insure that the activities of investigators do not fall under the definition of an information broker under the provision in this proposed legislation. ISPLA is carefully reviewing all aspects of this bill and will keep you apprised of further developments and our ongoing lobbying work in Washington, DC.

Bruce Hulme
ISPLA Director of Government Affairs
To join us and support our proactive efforts please visit www.ISPLA.org
We do much more than just keeping the profession informed!

Expect New Legislation Regarding Software Installed On Computers

Wed, 04 May 2011 16:48:48 GMT

WEBCAMS, SPYWARE & KEYSTROKE MONITORING

A Pennsylvania federal lawsuit filed May 2 and reported in today’s Washington Post claims that Aaron’s Inc., a large furniture rental chain store based out of

Atlanta,

Georgia

, placed spyware on computers they rented to track their customers’ keystrokes, take screenshots and even transmit webcam images of users at their homes. The case was brought by a young couple, Brian and Crystal Byrd. The lawsuit is reminiscent of the Lower Merion School District matter which last year brought about the introduction of anti-surreptitious video surveillance legislation by then Pennsylvania Senator Arlen Specter which ISPLA in Washington worked hard to successfully defeat.

Privacy experts contend that Aaron’s has the right to equip its computers with such software to shut off the devices remotely if customers stop paying their bills. However, customers must be notified of such monitoring. “If I’m renting a computer ... then I have a right to know what the limitations are and I have a right to know if they’re going to be collecting data from my computer,” said Annie Anton, a professor and computer privacy expert with North Carolina State University.

But the couple who sued Aaron’s said they had no knowledge that the computer they rented came equipped with a device that could spy on them. It was not until December 22, 2010 when an Aaron’s manager came to their home to repossess the computer because he mistakenly believed the Byrds had not paid off their “rent-to-own” agreement. However, after they produced a paid receipt the manager showed them a picture of them using the computer that had been taken by the computer’s webcam.

Aaron’s claims it hasn’t authorized any of its corporate stores to install the software described in the lawsuit. Police were contacted by the customer who ascertained the image had been taken by software of Designerware LLC and installed on all Aaron’s rental computers. Designerware is a codefendant in this matter. The Byrds leased their computer from an independently owned and operated franchisee. Aaron’s believes that none of its more than 1,140 company-operated stores had used Designerware’s product or had done any business with it.

It remains to be seen if the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act were violated. If either law was broken then Aaron’s went too far.

Former FTC Commissioner, Peter Swire, an

Ohio State professor, is quoted in an AP item that using a software "kill switch" is legal because companies can protect themselves from fraud and other crimes. "But this action sounds like it's stretching the self-defense exception pretty far," he said, because the software "was gathering lots of data that isn't needed for self-protection." He is also quoted as indicating the Computer Fraud and Abuse Act "prohibits unauthorized access to my computer over the Internet. The renter here didn't authorize this kind of access."

Fred Cate, an information law professor at

Indiana University agrees that consent is required but said the real question might be: "Whose consent?" Courts have allowed employers to record employee phone calls because the employers own the phones. Similar questions arise as digital technology becomes more omnipresent, Cate said. "We always talk about deterrence value. Well it doesn't make sense to put (the software) on there" without telling people what it can do," according to Cate. "That's why we all put alarm signs in front of our houses, even if we don't have alarms."

According to the lawsuit, components were soldered into the computer's motherboard or otherwise physically attached to the PC's electronics. It can only be uninstalled and deactivated using a wand. John Robinson, the plaintiffs’ attorney, indicated the computer is currently held as police evidence. His clients want the federal court to declare their case a class action and are seeking unspecified damages and attorneys' fees. They contend the privacy act allows for a penalty of $10,000 or $100 per day per violation, plus punitive damages and other costs.

PRNewswire released an Aaron's, Inc. item that the lawsuit regarding a violation of privacy relating to a computer rented from an Aaron's franchise store is without merit against Aaron's, Inc.

“The Company believes that none of its over 1,140 Company-operated stores have used the product developed or provided by PC Rental Agent or Designerware LLC, the two vendors named in the lawsuit, and neither vendor is approved or have done any business with Aaron's, Inc.

“Aaron's, Inc. respects its customers' privacy and has not authorized any of its corporate stores to install software that can activate a customer's webcam, capture screenshots, or track keystrokes. The named plaintiffs leased the computer at issue from an independently owned and operated franchisee. Aaron's, Inc. intends to vigorously defend itself against these allegations.

Aaron's, Inc. has company-operated and franchised stores in 48 states and

Canada . It also manufactures furniture and bedding at 12 facilities in seven states. Information related above is a compilation of reports from the Washington Post, Associated Press, PRNewswire, the American Bar Association, and ISPLA privacy reference material.

ISPLA expects that this revelation, along with recent coverage of Internet tracking by Google, and several Congressional hearings scheduled for next week, will keep our profession busy during the 112^th Congress.

Bruce Hulme

ISPLA Director of Government Affairs

To join us and support our proactive efforts please visit www.ISPLA.org

We do much more than just keeping the profession informed!

ISPLA With INTELLENET in DC

Mon, 25 Apr 2011 12:54:37 GMT

ISPLA Hits the Hill, Harnesses Support, Pursues PAC Activity, and Supports INTELLENET Conference

It was a busy week for executive committee members of ISPLA who walked the halls of Congress, promoted ISPLA-PAC activities at a fundraiser, and joined other members who were attending the 28^th Intellenet Annual Conference.

Our thanks to our Nicole Bocra, who not only hosted a successful PAC fundraiser at Morton’s Steakhouse in Washington, DC, but also assisted in organizing one of the most successful Intellenet conferences, which was held in Crystal City, Virginia, this past week. Nicole also gave an expert presentation on the use of “Social Media” in conducting investigations. Chairman Peter Psarouthakis presented a well-received talk on Ethics, and Bruce Hulme filled-in for the luncheon speaker who had to cancel at the last minute.

ISPLA board member Jim Olsen, of Texas, Psarouthakis of Michigan, and ISPLA Director of Government Affairs, Hulme, of

New York , attended the April 13, 2011 hearing on “The Role of Social Security Numbers in Identity Theft” held before the House Committee on Ways and Means Subcommittee on Social Security chaired by Rep. Sam Johnson [R-TX- 3]. Hulme had previously testified before this same subcommittee on SSN-use issues associated with ID Theft. Testifying witnesses appeared on behalf of the Office of Administration and the Inspector General of the Social Security Administration, and the Division of Privacy and Identity Protection of the Federal Trade Commission.

Chairman Johnson and Rep. Lloyd Doggett [D-TX-25] then introduced HR 1509, the “Medicare Identity Theft Prevention Act of 2011” to amend Title II of the Social Security Act to prohibit the inclusion of Social Security account numbers on Medicare cards. As we expected, this legislation does not affect our profession. However, should ensuing legislation in this subcommittee be directed towards any restrictions that might affect the use of credit headers, we were assured that ISPLA would be provided an opportunity to give input.

While “hitting Capitol Hill” we also met with staff of Senators John McCain [R-AZ] and John Kerry [D-MA] regarding their Kerry-McCain Bill, S 799, the “Commercial Privacy Bill of Rights Act of 2011.” This bill would apply to any firm that “collects, uses, transfers, or stores covered information concerning more than 5,000 individuals during any consecutive 12-month period.” Such information includes names or addresses or social security, credit card, or phone numbers or biometric data. The 44-page bill would require the notification of consumers in clear language whenever their data is being collected, and ensure that their information safe from hackers.

Recently, millions of consumers were exposed to the risk of email swindles after a massive security breach by Epsilon, an online marketing firm that handles email marketing lists for hundreds of clients. Companies, including non-profits, that collect information about consumers over the Internet or otherwise, including search engines, telephone companies, and cable companies, will fall under the provisions of this proposed bill. The bill states "The ease of gathering and compiling personal information on the Internet and off, both overtly and surreptitiously, is becoming increasingly efficient and effortless."

Should this bill be enacted, it would require companies to inform consumers the reason that data is being collected, with whom it will be shared, and how it will be safeguarded. The companies would also have to allow consumers to opt out of some data collection, and the consumers must agree, or opt in, to the collection of sensitive data such as medical conditions.

Rep. Cliff Stearns [R-FL-6] has also introduced legislation on the same topic, but not as a companion bill to the above.

ISPLA also met with staff of Representatives Hansen Clarke [D-MI-13] and Pete Sessions [R-TX-32]. They were each recipients of ISPLA-PAC donations in the 111^th Congressional race this past fall. No other political action committee representing our profession made any donations during the 111^th Congress according to FEC filings. ISPLA’s present proactive legislative agenda included meetings with representatives of the Federal Law Enforcement Officers Association and the Society of Former Special Agents of the Federal Bureau of Investigation regarding several matters of mutual concern.

In 2010, ISPLA partnered with INTELLENET Ltd, an international organization of investigative and security professionals, to handle lobbying and PAC activity. It was fitting that ISPLA’s executive committee hold its third board meeting in Crystal City,

Virginia , in conjunction with Intellenet’s annual conference. We also met with Kevin Whaley, LLC, producer for the ISPLA Insurance Plan, which is available only to members of ISPLA. Twenty percent of the attendees at the Intellenet conference are members of ISPLA. Many have enrolled in ISPLA’s member insurance program at an average annual cost of $600. Go to www.isplainsurance.com to complete the application and submit online. All are invited to become part of a forward-thinking and proactive movement to protect your profession.

ISPLA

Investigative & Security Professionals for Legislative Action

Singularly focused on the legislative needs of the Investigative and Security professions

Real Investigators – Real Professionals – Real Representation

www.ISPLA.org

FTC and Google Settle Charges over Social Network Privacy Issues

Thu, 31 Mar 2011 19:22:39 GMT

FTC Charges Deceptive Privacy Practices in Google's Rollout of Its Buzz Social Network

Google Agrees to Implement Comprehensive Privacy Program to Protect Consumer Data

March 31, 2011 - Google Inc. has agreed to settle Federal Trade Commission charges that it used deceptive tactics and violated its own privacy promises to consumers when it launched its social network, Google Buzz, in 2010. The agency alleges the practices violate the FTC Act. The proposed settlement bars the company from future privacy misrepresentations, requires it to implement a comprehensive privacy program, and calls for regular, independent privacy audits for the next 20 years. This is the first time an FTC settlement order has required a company to implement a comprehensive privacy program to protect the privacy of consumers’ information. In addition, this is the first time the FTC has alleged violations of the substantive privacy requirements of the U.S.-EU Safe Harbor Framework, which provides a method for U.S. companies to transfer personal data lawfully from the European Union to the United States.

“When companies make privacy pledges, they need to honor them,” said Jon Leibowitz, Chairman of the FTC. “This is a tough settlement that ensures that Google will honor its commitments to consumers and build strong privacy protections into all of its operations."

According to the FTC complaint, Google launched its Buzz social network through its Gmail web-based email product. Although Google led Gmail users to believe that they could choose whether or not they wanted to join the network, the options for declining or leaving the social network were ineffective. For users who joined the Buzz network, the controls for limiting the sharing of their personal information were confusing and difficult to find, the agency alleged.

On the day Buzz was launched, Gmail users got a message announcing the new service and were given two options: “Sweet! Check out Buzz,” and “Nah, go to my inbox.” However, the FTC complaint alleged that some Gmail users who clicked on “Nah...” were nonetheless enrolled in certain features of the Google Buzz social network. For those Gmail users who clicked on “Sweet!,” the FTC alleges that they were not adequately informed that the identity of individuals they emailed most frequently would be made public by default. Google also offered a “Turn Off Buzz” option that did not fully remove the user from the social network.

In response to the Buzz launch, Google received thousands of complaints from consumers who were concerned about public disclosure of their email contacts which included, in some cases, ex-spouses, patients, students, employers, or competitors. According to the FTC complaint, Google made certain changes to the Buzz product in response to those complaints.

When Google launched Buzz, its privacy policy stated that “When you sign up for a particular service that requires registration, we ask you to provide personal information. If we use this information in a manner different than the purpose for which it was collected, then we will ask for your consent prior to such use.” The FTC complaint charges that Google violated its privacy policies by using information provided for Gmail for another purpose - social networking - without obtaining consumers’ permission in advance.

The agency also alleges that by offering options like “Nah, go to my inbox,” and “Turn Off Buzz,” Google misrepresented that consumers who clicked on these options would not be enrolled in Buzz. In fact, they were enrolled in certain features of Buzz.

The complaint further alleges that a screen that asked consumers enrolling in Buzz, “How do you want to appear to others?” indicated that consumers could exercise control over what personal information would be made public. The FTC charged that Google failed to disclose adequately that consumers’ frequent email contacts would become public by default.

Finally, the agency alleges that Google misrepresented that it was treating personal information from the European Union in accordance with the U.S.-EU Safe Harbor privacy framework. The framework is a voluntary program administered by the U.S. Department of Commerce in consultation with the European Commission. To participate, a company must self-certify annually to the Department of Commerce that it complies with a defined set of privacy principles. The complaint alleges that Google’s assertion that it adhered to the Safe Harbor principles was false because the company failed to give consumers notice and choice before using their information for a purpose different from that for which it was collected.

The proposed settlement bars Google from misrepresenting the privacy or confidentiality of individuals’ information or misrepresenting compliance with the U.S.-E.U Safe Harbor or other privacy, security, or compliance programs. The settlement requires the company to obtain users’ consent before sharing their information with third parties if Google changes its products or services in a way that results in information sharing that is contrary to any privacy promises made when the user’s information was collected. The settlement further requires Google to establish and maintain a comprehensive privacy program, and it requires that for the next 20 years, the company have audits conducted by independent third parties every two years to assess its privacy and data protection practices.

Google’s data practices in connection with its launch of Google Buzz were the subject of a complaint filed with the FTC by the Electronic Privacy Information Center shortly after the service was launched.

The Commission vote to issue the administrative complaint and accept the consent agreement package containing the proposed consent order for public comment was 5-0. Commissioner Rosch concurs with accepting, subject to final approval, the consent order for the purpose of public comment. The reasons for his concurrence are described in a separate Statement.

The FTC will publish a description of the consent agreement package in the Federal Register shortly. The agreement will be subject to public comment for 30 days, beginning today and continuing through May 2, 2011, after which the Commission will decide whether to make the proposed consent order final. Interested parties can submit written comments electronically or in paper form by following the instructions in the “Invitation To Comment” part of the “Supplementary Information” section. Comments in electronic form should be submitted using the following web link: https://ftcpublic.commentworks.com/ftc/googlebuzz
and following the instructions on the web-based form. Comments in paper form should be mailed or delivered to: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue, N.W., Washington, DC 20580. The FTC is requesting that any comment filed in paper form near the end of the public comment period be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.

NOTE: The Commission issues an administrative complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The complaint is not a finding or ruling that the respondent has actually violated the law. A consent agreement is for settlement purposes only and does not constitute an admission by the respondent that the law has been violated. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $16,000.

Internet Privacy Update

Fri, 18 Mar 2011 09:37:30 GMT

“In the past year, The Wall Street Journal's ‘What They Know’ series has revealed that popular websites install thousands of tracking technologies on people's computers without their knowledge, feeding an industry that gathers and sells information on their finances, political leanings and religious interests, among other things.” – March 16, 2011 WSJ

On March 16, 2011, the Senate Committee on Commerce, Science, and Transportation heard testimony from its chairman Sen. Jay Rockefeller [D-WV] and witnesses from the Federal Trade Commission, Department of Commerce, Microsoft, GroupM Interaction, an independent researcher, Intuit, and the ACLU.

Testimony is available on line at the Commerce Committee’s website. The ACLU paper “The State of Online Consumer Privacy” is an excellent reference source for privacy issues material, especially the links identified in its footnotes. Over the years a number of ISPLA members, as well as I, have relied on much of the same material when meeting with legislators, privacy advocates, and business leaders or preparing testimony on issues affecting investigative and security professionals.

The subject of consumer privacy relative to the Internet is one being closely monitored by ISPLA. However, this issue presently does not warrant excessive involvement of lobbying resources at the present time by our members. But the issue does bear watching. The major players from all perspectives have far greater resources than our profession. What we must make certain is that the recommendations evolving from hearings such as this, as well as other pending legislation in the House and Senate do not expand beyond Internet tracking. ISPLA has previously reported on separate legislation offered by Rep. Bobby Rush [D-IL-1], Rep. Cliff Stearns [R-FL-6], Sen. John McCain [R-AZ] and Sen. John Kerry [D-MA], as well as proposed “Do Not Track” regulations by the FTC. Most of the Senate Commerce Committee excerpts below were prepared by the Democrat members of the committee.

Key Quotations from the Hearing:

“Now, I appreciate that we live in a world in which online technology is rapidly evolving. I know some online companies have taken steps to address consumer privacy. And, I appreciate the need to proceed carefully when providing consumer protections that may disrupt the functionality of the Internet. But Congress can no longer sit on the sidelines. There is an online privacy war going on, and without help, consumers will lose. We must act to give Americans the basic online privacy protections they deserve.” - Chairman John D. (Jay) Rockefeller IV

“In light of the concerns expressed about online tracking, the [Preliminary FTC] Staff Report recommended a Do Not Track mechanism. A robust, effective Do Not Track system would ensure that consumers can opt out once, rather than having to exercise choices on a company-by-company or transaction-by-transaction basis. Such a universal mechanism could be accomplished through legislation or potentially through robust, enforceable self-regulation.” - Jon D. Leibowitz, Chairman, Federal Trade Commission

“Having carefully reviewed all stakeholder comments to the Green Paper, the Department has concluded that the U.S. consumer data privacy framework will benefit from legislation to establish a clearer set of rules for the road for businesses and consumers, while preserving the innovation and free flow of information that are hallmarks of the Internet.” - Lawrence E. Strickling, Assistant Secretary of Commerce for Communications and Information, National Telecommunications and Information Administration, U.S. Department of Commerce

“In the digital era, privacy is no longer about being ‘let alone.’ Privacy is about knowing what data is being collected and what is happening to it, having choices about how it is collected and used, and being confident that it is secure.” - Erich D. Andersen, Vice President and Deputy General Counsel, Microsoft Corporation

“We want to build consumer trust in the online experience, and therefore we believe that consumers should be able to choose whether and how their data is collected or used for online behavioral advertising. Our clients also want to provide these choices to maintain the confidence of their customers. Global companies work hard every day to protect their brands, and they recognize that their customers may have different preferences about online advertising.” - John Montgomery, Chief Operating Officer, GroupM Interaction

“Consumers need more transparency into who is tracking them online, what data is being collected, and how this data is being used, shared or sold. Today’s technical defenses to online tracking are not able to stop the leading tracking technologies, and consumers often do not have meaningful ways to control them. To be effective, privacy protections for consumers online will likely require both a technical and policy component, working in tandem, and I believe these discussions here today are a great step in making that union a reality.” - Ashkan Soltani, Researcher and Consultant

“As we enter this important discussion, it is necessary to further emphasize the importance of both respect for the consumer participation and control of information and the value and benefit of continued innovation, in particular where the future of economic growth is goingundefineddata driven innovation. The key to our success and to ensuring balance among these interests is earning the customers trust.” - Barbara Lawler, Chief Privacy Officer, Intuit, Inc.

“If this collection of data is allowed to continue unchecked, then capitalism will build what the government never couldundefineda complete surveillance state online. Without government intervention, we may soon find the internet has been transformed from a library and playground to a fishbowl, and that we have unwittingly ceded core values of privacy and autonomy.” - Chris Calabrese, Legislative Counsel, American Civil Liberties

Union

The Fair Information Practice Principles (FIPPs), written over thirty years ago, in the view of the ACLU has become the basis for comprehensive privacy laws in most of the industrialized world as well as sector specific privacy laws in the United States. In 2008 the Privacy Office of the Department of Homeland Security formally adopted them in its analysis of DHS programs. And in a recent report, the Department of Commerce recommended that the FIPPs as described by DHS be adopted as the basis for internet regulation. The FIPPs stand for eight relatively straightforward ideas:

• Transparency: Individuals should have clear notice about the data collection practices involving them.
• Individual Participation: Individuals should have the right to consent to the use of their information.
• Purpose Specification: Data collectors should describe why they need particular information.
• Data Minimization: Information should only be collected if it‘s needed.
• Use Limitation: Information collected for one purpose shouldn‘t be used for another.
• Data Quality and Integrity: Information should be accurate.
• Security: Information should be kept secure.
• Accountability and Auditing: Data collectors should know who has accessed information and how it is used.

While some adjustments will have to be made to conform to new technologies, international internet data collection practices, as well as the data collection practices of other sectors of the

economy, are already governed by the FIPPs. To imply as some have done that application of these regulations in this case would cause serious harm to the internet and e-commerce seems overstated at best. These protections must be embodied in law, not just in industry practice, according to the ACLU.

The ACLU written testimony indicates that the rapid adoption of new testimony has not eliminated Americans’ expectations of privacy. They reference a 2009 study by Joseph Turow, et al, which indicates that 69% of Internet users want the legal right to know everything that a Web site knows about them and 92% want the right to require websites to delete information about them.

Consumers also oppose Internet tracking according to a 2010 study by Lymari Morale which indicates that 67% reject the idea that advertisers should be able to match ads based on specific websites consumers visit, and 61% believe these practices were not justified even if they kept costs down and allowed consumers to visit websites for free. Thus, Americans, although making great use of the Internet are still very concerned over their privacy and troubled by the practice of behavioral targeting. They expect their online activities will remain private, hence the ongoing efforts by Congress and regulators to propose solutions to protect consumers’ Internet privacy.

In closing, the recent Wall Street Journal article states:

“The administration's plan to push for legislation reflects a shifting attitude by the government, which for more than a decade favored a hands-off approach to the Internet. Officials have said the increasing intrusiveness of online tracking has forced them to reassess that approach.”

ISPLA’s mission is help contain such government regulatory efforts to just Internet activities and make certain such legislation does not expand to data collected or disseminated by investigators.

Bruce Hulme

ISPLA Director of Government Affairs

Investigative & Security Professionals for Legislative Action

www.ISPLA.org

"Real Investigators, Real Professionals, Real Representation"

CA PII includes ZIP codes

Wed, 16 Mar 2011 14:10:38 GMT

California “Personal Identification Information” to include ZIP codes

Effects of last month’s California Supreme Court decision in Pineda v. Williams-Somona Stores, Inc. are bringing forth unexpected litigation.

In California, stores are prohibited from soliciting from their customers ZIP code information and storing such information in connection with credit card transactions which occur within their establishments. This ruling may expand the general definition of “personal identification information” or what is now commonly referred to as “PII” by including consumers’ ZIP codes in the classification. California’s Song-Beverly Credit Card Act prohibits retailers in that state from these business practices.

In a privacy alert from Ropes & Gray furnished to ISPLA, they note that the effect of this ruling “is compounded by the fact that in 2008, this practice was considered exempt from the Act by California’s 4th District Court of Appeals holding in Party City Corp. v. Superior Court which held that ZIP codes were too general to be covered by the Act because they pertain to a group of individuals, unlike an address or telephone number that is specific in nature regarding an individual.” The firm indicates it is not clear as to those states having similar statutes upon which the Act was based, namely New York, Massachusetts, Rhode Island, Delaware, Maryland and Nevada. However, these states do not expressly prohibit acquiring ZIP codes.

In California alone, since the February 10 decision, lawsuits have been filed against Bed Bath & Beyond, Cost Plus Inc., Crate & Barrel, Macy’s, Old Navy LLC, Target, Victoria’s Secret and Wal-Mart. Violations of the Act call for a maximum fine of $250 for the first violation and $1,000 for each subsequent one. Thus, large retailers may have considerable financial exposure.

This report should not be construed as legal advice. Privacy is not really dead and there are many out there who are not going to get over it. Remember - it was the violation of a California security data breach law in 2004 which created havoc with the major information data providers resulting in redacted SSNs and numerous unsuccessful ensuing attempts by Congress to deny private investigators access to “credit headers” and other personal identification information.

Bruce Hulme
Director of Government Affairs
Investigative & Security Professionals for Legislative Action

www.ISPLA.org – Real Investigators, Real Professionals, Real Representation!

Michigan State Senator endorsed by ISPLA in run for Congress

Thu, 28 Oct 2010 19:37:51 GMT

ISPLA Endorses Hansen Clarke for Congress

Michigan State Senator Hansen Clarke has received the endorsement of Investigative & Security Professionals for Legislative Action. In August he defeated seven-term incumbent Congresswoman Carolyn Cheeks Kilpatrick in the Democratic primary for the 13^th Congressional District in

Michigan . The district covers about half of Detroit, the Grosse Pointe communities, Harper Woods and the Downriver cities of Ecorse, Lincoln Park, River Rouge and Wyandotte .

Clarke, a resident of Detroit, has been a Michigan state senator since 2002. He served as a state representative prior to his time in the Michigan Senate. ISPLA chairman Peter Psarouthakis, of EWI Associates, Inc., this week presented Senator Clarke with a donation from our federal nonpartisan ISPLAPAC. Peter, and ISPLA secretary Al Cavasin, owner of Great Northern Sentry Co., in Jackson, Michigan, have observed the excellent work of the Senator in Michigan over the years. They feel that he knows the problems facing the investigative and security professions and that his legislative experience in Michigan will serve us well in Washington .

ISPLA discussed with the senator how we might serve as a resource regarding investigative and security matters in the private sector including: privacy issues, Social Security Number limitations, indigent defense, identity theft, infrastructure security, and public record access. Although still a young and fast-growing professional association, ISPLA’s organizers have a wealth of knowledge and experience having testified on GLBA implementation, ID theft, and indigent defense issues before the House Finance, Ways and Means, and Judiciary Committees. We advised Senator Clarke that ISPLA is experienced in working with committee staff and regulatory agencies and providing testimony and public comment. We assured him that if ISPLA can ever lend him support on any public safety issues, he should feel free to call upon us. Michigan State Senator Clarke, who we hope will soon become Congressman Clarke, holds a BFA degree from Cornell University and a JD degree from

Georgetown University Law Center .

ISPLA administers a nonpartisan federal political action committee and disburses ALL of its funds in each two-year Congressional cycle. All PAC monies of ISPLA have now been disbursed to worthy Congressional candidates. It is fulfilling a need at the federal level that has not been addressed by any national association until now. It has created a mechanism for investigative and security professionals having mutual interests to participate in lobbying and financially support qualified political candidates for office. The leadership of ISPLA is deeply committed to providing legislative expertise and financial resources to accomplish this important mission.

You are invited to help us protect your interests in

Washington by contributing to ISPLAPAC. Please visit www.ISPLA.org. Join us in our efforts now! In accordance with Federal Election Law, financial PAC contributions by investigative and security professionals may be paid online with a personal credit card or by personal check payable to ISPLAPAC and mailed to the address below. Feel free to forward this message to your colleagues and ask them to protect their interests and join ISPLA too. Annual dues are $99 and the annual membership runs for one year from the date of joining. Thank you.

Bruce Hulme

ISPLA Director of Government Affairs

235 N. Pine Street

Lansing, Michigan 48933

Surreptitious Video Surveillance

Wed, 18 Aug 2010 14:05:06 GMT

No federal criminal charges to be brought in school webcam spying on students and S. 3214 Surreptitious Video Surveillance Act of 2010 Update

Saying that they could not prove requisite intent, federal authorities announced they do not plan on pursuing criminal charges against those responsible for admittedly taking photos of some students within their homes and elsewhere on webcams embedded in laptop computers issued by a Pennsylvania school district.

The FBI and federal prosecutors announced yesterday that day they could not prove any criminal wrongdoing by Lower Merion School District employees. "We have not found evidence that would establish beyond a reasonable doubt that anyone involved had criminal intent," said U.S. Attorney Zane D. Memeger in a statement.

The FBI investigated the school district for possible wiretap violations after a student's civil lawsuit exposed the issue. Lower Merion High School student Blake Robbins alleged the district photographed him 400 times in a 15-day period last fall, sometimes as he slept in his bedroom or was half-dressed.

School district officials said its technology staff only activated the remote tracking system to try to find laptops that had been reported lost or stolen. However, the district acknowledged that the software system sometimes remained activated for weeks or months, even after a laptop was found, allowing for the capture 56,000 webcam photographs and screen shots from students’ laptops. The tracking program took images every 15 minutes, usually capturing the webcam photo of the user and a screen shot at the same time. None of the images captured appeared to be salacious or inappropriate, school officials have said. The district remotely activated the software to find 80 missing laptops in the past two years. Approximately 38,000 of the images were taken over several months from six computers reported stolen from a locker room.

Civil litigation by the families of two students against Lower Merion School District continues over the alleged invasion of privacy. The school district has now adopted a policy that permits webcams to be activated only with the express consent of students and parents.

It was this incident which brought about the introduction of S. 3214, the Surreptitious Video Surveillance Act of 2010, by Senator Arlen Specter [D-PA] to prohibit any person from engaging in certain video surveillance except under the same conditions authorized under chapter 119 of title 18, United States Code, or as authorized by the Foreign Intelligence Surveillance Act of 1978. ISPLA and other investigative and security industry representatives lobbied this past spring for changes in the bill’s language to which the senator’s office has agreed.

Bruce Hulme

ISPLA Director of Government Affairs

Social Security Identity Defense Act

Wed, 04 Aug 2010 16:39:58 GMT

For Immediate Release:
July 29, 2010


	Petri Bill Would Enlist IRS Against Identity Theft

It's called "identity theft" when someone pretends to be you in order to obtain credit and other benefits in your name. Victims can spend years demonstrating they have been defrauded, getting free of debts they did not incur, and restoring their credit.

One Princeton, Wisc., resident learned that he was a victim of the fraud as a result of a call from a debt collector. He contacted the Internal Revenue Service to alert the agency that somebody was using his Social Security number illegally.

"To his surprise," Rep. Tom Petri explains, "he learned that the IRS already knew of the situation, had known for some time, and had chosen not to tell anybody. The IRS explained that it is legally required to protect the privacy of the person committing the fraud."

"As the incidence of identity theft has risen, Congress has taken several steps to help Americans fight back and maintain the security of their personal information. A majority in Congress have agreed that our government should help in the battle against identity theft," Petri said, adding, "Unfortunately, the IRS believes it cannot be part of this fight."

In response, on July 29, Petri introduced legislation to, as he said, "require the IRS to fight on the side of the good guys." Joining him in introducing the bill is Rep. Melissa Bean (D-IL), who said, “Privacy laws are not intended to protect fraudsters or to enable illegal immigration. If the IRS has information about identify theft, it should share that information immediately with law enforcement and affected parties.”

The Petri-Bean bill - the Social Security Identity Defense (SSIDA) Act - would require the IRS to inform a taxpayer when his or her Social Security number has been used fraudulently to gain employment; provide that the IRS share this information with the FBI and allow the FBI to make facts available to state and local law enforcement agencies; and prevent the appearance of a fraudulently used Social Security number on a W-2 statement.

"The Federal Trade Commission estimates that as many as nine million Americans have their identities stolen each year," Petri said. "We should ensure that our government does all it can to help identify theft victims. This bill takes a big step in that direction."

Sixth Amendment and Indigent Defense Issue

Sun, 25 Jul 2010 20:59:29 GMT

“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” - Gideon v. Wainwright (1963)

This is an ISPLA update on part of our work the past year with Equal Justice, Sixth Amendment, Wrongly Accused, Innocence, and Indigent Defense projects which have requested our lobbying assistance. A significant number of our members are engaged in criminal defense investigations and in the pursuit of justice. We often have to work together with a wide range of groups and associations to address legislative issues, some of which seek to close our access to various sources of information. At times such groups have even included the ACLU and media organizations.

ISPLA’s Executive Committee Chairman, Peter Psarouthakis, recently attended the Michigan Supreme Court oral arguments in Christopher Lee Duncan et al v. State of Michigan and thought the court might rule to reverse its previous decision, so as to not make the court look like law makers. It turns out he was correct. In a stunning defeat for right to counsel advocates, the Michigan Supreme Court reversed its unanimous, 2-month old decision in this ACLU class action lawsuit upon reconsideration. “Is it all about the financial costs of fixing one of the nation’s most deficient indigent defense systems?” asks the National Legal Aid and Defender Association.

The July 16 order reversing decision and entering summary judgment in favor of the defendants, State of Michigan and Governor of Michigan, ended any opportunity for the plaintiffs to prove they are being denied the effective right to counsel as a result of Michigan’s inadequate and ineffective system of public defense. Three of Michigan’s Supreme Court judges dissented stating: “Today’s order slams the courthouse door in plaintiffs’ face for no good reason.” Instead, they are relegated to being represented in their pending cases by lawyers who lack the time, tools, training and resources to provide them with the assistance of counsel that our American system of justice promises to all. ISPLA would add: “Not having access to qualified and fairly paid defense investigators and forensic experts denies them equal justice as well.”

In Michigan, as in most states throughout the country, the state Supreme Court has final responsibility for overseeing the justice system and ensuring that the rights guaranteed to everyone are applied in that system. It is the courts that one goes to when a person believes they are being wronged in some way and it is the courts that provide one a remedy for that wrong. However, now the Michigan courts are washing their hands of any responsibility for overseeing the public defense system and ruling that instead “the executive and legislative branches can and should address such matters.”

Who in Michigan is responsible for making the public defense system work? The courts say that it is up to the legislative and executive branches of government. Both branches are well informed on the systemic deficiencies. On behalf of the Michigan Legislature under concurrent resolution of both chambers and under the guidance of the State Bar of Michigan, NLADA undertook a year-long study of indigent defense representation in ten sample counties. To ensure that a representative sample of counties was chosen to be studied -- and to avoid criticism that either the best or worst systems were cherry-picked to skew the results -- NLADA requested that an advisory group be convened to choose the sample counties. Created by Michigan State Senator Alan Cropsey, the advisory group was composed of representatives from the State Court Administrator’s Office, the Prosecuting Attorneys Association of Michigan, the Michigan Association of Counties, the State Bar of Michigan, the State Appellate Defender Office, the Criminal Defense Attorneys of Michigan, the Supreme Court, and trial-level judges. The advisory group ensured that the county sample reflected geographic, population, economic, and defense delivery model diversity. ISPLA representatives met with the above associations, the Michigan Campaign for Justice, Michigan law makers, testified at state and federal hearings on related subject matter, and also met with many of the same groups a second time in Washington at the U.S. Department of Justice National Symposium on Indigent Defense.

Rather than just posting this on listservs and Twitter, it is presented by ISPLA as a loss which exemplifies the fact that we know the costs of defeat in lobbying in a proactive manner, but view such as just a temporary setback which will only strengthen our resolve. The ACLU has vowed to keep up their fight: “Our fight to fix the indigent defense system is far from over and we are currently weighing our legal options.”

The court case by the ACLU may have failed, but the ability to preserve the Sixth Amendment right to effective counsel will still exist through effective lobbying by Equal Justice groups and like-minded stakeholders, such as ISPLA. Please read the NLADA message below. This court decision is a significant loss to the "Gideon" advocates, which to a degree are also a portion of ISPLA’s constituents. When the indigent defense system is broken, everyone suffers. The innocent end up in prison, while the perpetrators are left to remain free ---- free on the street to commit more crime.

Investigative professionals who support ISPLA's initiative in support of the Sixth Amendment, Indigent Defense and Equal Justice issues are invited to join us in our efforts. We will also be assisting some state investigative professional associations to address specific problems presently existing regarding the appointment of defense investigators to represent indigent defendants.

Go to www.ISPLA.org

Bruce Hulme
ISPLA Director of Government Affairs

The NLADA report, A Race to the Bottom, opens with a re-telling of the first right to counsel case in America – the case of the Scottsboro Boys in 1932 Alabama (Powell v. Alabama) – to show that many of the systemic deficiencies identified in the Scottsboro Boys’ story permeate the criminal courts of Michigan today: judges hand-picking defense attorneys; lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest; failure of defenders to properly prepare for trial and meet their ethical canons to zealously advocate for clients; inadequate compensation for those appointed to defend the accused; and, a lack of sufficient time, training, and resources to properly prepare a case in the face of the state court’s emphasis on disposing of cases as quickly as possible.

One wonders how much the financial impact of moving an early 20th century public defense model into the new millennium in one of the most economically depressed states in the country had on the decision. The concurring opinion reasoned that the probable financial impact of the case could be substantial, stating the Court’s original decision was "an open invitation to the trial court to assume ongoing operational control over systems for providing defense counsel to indigent criminal defendants. . . . And with that invitation comes a blank check on the part of the judiciary to force sufficient state level legislative appropriations and executive branch acquiescence in assuming similar control over the systems in every county in this state, while nullifying the provisions of the criminal defense act and superintending authority of the Supreme Court and the State Court Administrator." We remind the Court's majority that our Constitutional rights extend to all of our citizens, not merely those of sufficient means. Though we understand that policymakers must balance other important demands on their resources, the Constitution does not allow for justice to be rationed to the poor due to insufficient funds.

HR 5777, the Best Practices Act and a bill requiring notice and consent...

Fri, 23 Jul 2010 08:16:08 GMT

Hearings - Subcommittee on Commerce, Trade and Consumer Protection As a follow-up to yesterday's message disseminated by ISPLA regarding two recently introduced House bills,　this afternoon we　monitored a legislative hearing held before the House Subcommittee on Commerce, Trade and Consumer Protection, chaired by Rep. Bobby Rush [D--IL-1] also sponsor of one of the bills.　

The hearing examined H.R. 5777, the BEST PRACTICES Act, recently introduced by Rep. Bobby Rush and a bi-partisan discussion draft, released by Reps. Rick Boucher [D-VA-9]　and Cliff Stearns [R-FL-6], to require notice to and consent of an individual prior to the collection and disclosure of certain personal information relating to that individual.

The legislation attempts to address a number of issues affecting consumer privacy. These include consumers' expectations as to the manner in which their personal information should be handled on the Internet and websites and how it should be shared and disclosed to third parties.　 The legislation also seeks to address "what defaults should be set in connection with such expectations to provide regulatory certainty to industry and to investors; what safeguards should be crafted to　anticipate foreseeable abuses and violations of consumers' privacy expectations; which set of remedies will make consumers whole in the event of a privacy breach; and how to calibrate penalties and other possible legal causes of action without chilling industry incentives to innovate and grow their businesses. The legislation also seeks to address what extent, if any, should the privacy framework set forth in HR 5777 preempt state privacy laws and regulations.　

Testimony was received by the

following:

Witnesses

　　　 * David Vladeck, Director, Bureau of Consumer Protection, Federal Trade Commission

　　　 * Ed Mierzwinski, Consumer Program Director, U.S. Public Interest Research Group

　　　 * Leslie Harris, President and Chief Executive Officer, Center for Democracy

and Technology

　　　 * David Hoffman, Global Privacy Officer, Intel Corporation

　　　 * Ira Rubinstein, Adjunct Professor of Law, New York University School of Law

　　　 * Jason Goldman, Counsel, Technology and E-Commerce, U.S. Chamber of Commerce

　　　 * Mike Zaneis, Vice President, Public Policy, Interactive Advertising Bureau After the chairman and Ranking member gave their opening statements, followed by

statements of five or so committee members, the witness panel were allowed about　five minutes each to read a prepared statement. The witnesses discussed the role of the FTC and its　possible extent of rule-making and enforcement, Fair Information Practices, Opt-in and Opt-out provisions, the extent of federal preemption, data minimization, Safe Harbor provisions　and Best Practices, self regulation, private rights of action, class actions　and states attorneys general prosecutions,　and striking balances of the privacy of the individual versus the internet marketplace. David Vladeck, Director of the FTC's Bureau of Consumer Protection also commented on the FTC's three roundtables concerned with this same subject matter. They had previously been　attended by ISPLA, two held in Washington, DC and one in Berkely, CA. Rep. Cliff Stearns, the co-sponsor of one of the bills, was concerned with the speed in which this hearing had taken place --- just four days after the bill was released. He commented that his own bill had allowed input from interested stakeholders and that 70 different organizations had written comments.　He cited the need for robust discussion and the need for good equal balance.

Bruce Hulme

ISPLA Director of Government Affairs

www.ISPLA.org

Consumer Financial Protection Agency and New Federal Bills Update

Thu, 15 Jul 2010 14:55:07 GMT

US HR 4173, the “Wall Street Reform and Consumer Protection Act of 2009”

You have all heard about the major financial reform bill which has been taking up much space in newspapers and electronic media. Designed to curb risk on Wall Street, its purpose is to protect consumers and averting another financial melt-down that we experienced in 2008. It appears that Senate action today cleared a procedural road block to close debate all but assuring passage of the bill. The bill will create a Consumer Financial Protection Agency (CFPA), about which ISPLA has previously commented. The most likely candidate to head this agency is Professor Elizabeth Warren, presently on leave of absence at Harvard, while serving as chairwoman of the Congressional Oversight Panel.

The return of members of Congress from their July 4^th Holiday resulted in the introduction of several bills which ISPLA is reviewing. They concern, in part, eliminating the SSN from Medicare records, amending aspects of title 44USC18 pertaining to federal firearms license, consolidating contracting information databases, and addressing recent censorship issues in China regarding the Internet, commending Google, Go Daddy, Yahoo and Microsoft. The new three House bills and one House Resolution below are reflective of just a few identified in today's daily update on the ISPLA bill tracking system monitored on behalf of our individual members and to member professional associations.

Number:	US HR 5714 - Updated (New 07/15/2010)
Sponsor:	Rep Doggett, Lloyd [D-TX-25]
Title:	Medicare Identity Theft Prevention Act of 2010
Abstract:	*NONE*
Status:	Referred to the House Committee on Ways and Means. - 07/13/2010
Number:	US HR 5718 - Updated (New 07/15/2010)
Sponsor:	Rep Ackerman, Gary L. [D-NY-5]
Title:	Fire Sale Loophole Closing Act
Abstract:	*NONE*
Status:	Referred to the House Committee on the Judiciary. - 07/13/2010
Number:	US HR 5726 - Updated (New 07/15/2010)
Sponsor:	Rep Quigley, Mike [D-IL-5]
Title:	Federal Contracting Oversight and Reform Act of 2010
Abstract:	*NONE*
Status:	Referred to the House Committee on Oversight and Government Reform. - 07/13/2010
Number:	US HRES 1512 - Updated (New 07/15/2010)
Sponsor:	Rep McCarthy, Carolyn [D-NY-4]
Title:	Commending Google Inc. and other companies for advocating for an uncensored Internet, adhering to free speech principles, and keeping the Internet open for user
Abstract:	*NONE*
Status:	Referred to the House Committee on Foreign Affairs. - 07/13/2010

Bruce Hulme

ISPLA Director of Government Affairs

www.ISPLA.org

Michigan Vehicle Tracking bill becomes law. PIs receive exemption.

Thu, 01 Jul 2010 16:40:53 GMT

Dateline: July 1, 2010

The Michigan Council of Professional Investigators (MCPI) is pleased to announce that Michigan Governor Jennifer Granholm has signed into law Senate Bill 325. This new law makes it a crime to attach an electronic tracking device to a motor vehicle of another person without their knowledge or consent. Michigan Licensed Professional Investigators received an exemption.

The bill was sponsored by State Senator Basham who began work on his bill in 2008. The MCPI worked with the Senator on this bill since its inception. Also working tirelessly on this bill was Investigative & Security Professionals for Legislative Action (ISPLA).

This is a prime example of a state and national association working together to accomplish a positive result for the profession. Through the cooperative efforts of MCPI and ISPLA working with state law makers, the end result was good public policy.

We are also grateful to the firm of Julian Vail, LLC which handled lobbying efforts on this issue, working almost daily on this bill for the benefit of the profession.

To view this Act in its entirety go to http://bit.ly/95TIQa

ISPLA Legislative Committee

ISPLA Update: Revision S 3214 Surreptitious Video Surveillance in a Residence Act of 2010

Fri, 14 May 2010 13:14:45 GMT

ISPLA Update: Revision S 3214 Surreptitious Video Surveillance in a Residence Act of 2010

Investigative and Security Professional Colleagues,

Below is an email from NCISS Washington advocate Larry Sabbath, who accompanied ISPLA/NCISS members Bruce Hulme and Stu Drobny to a conference this past Monday at the office of Senator Arlen Specter (D-PA). Also present was Jimmie Mesis, editor of PI Magazine and now the chairman of the NCISS investigations legislative committee. Bruce Hulme, ISPLA Legislative Director again extends thanks to Stu Drobny for arranging the meeting and ISPLA's Nicole Bocra for her ongoing assistance in her lobbying of this piece of legislation.

At the meeting, Bruce Hulme indicated his concern with how this legislation might be interpreted to include security cameras and he requested further clarification. He and other representatives of our industry also expressed hope that there would be further writing with regard to the legislative history of this bill. In addition to the revision by Congressional staff adding the word "Residence" to portions of the bill, it is important to point out to our security members of ISPLA, and to the other associations with whom we have been working, on an additional change to this bill. ISPLA is pleased that the following language was added to the draft which assuages our concern:

"(2) does not include security monitoring devices installed or operated by, or at the direction of, the owner or leaseholder of the property."　

There had also been concern expressed on how this proposed legislation might affect possible undercover operations that might be video taped or the legality of the installation of "Nanny Cams." If one takes note under the section "2523. Prohibition on use of video surveillance in a residence", the definition allows such video if made with the consent of an individual present in the area which would cover an undercover or sting operation. Nanny Cams could be utilized without the parents being present as the resident of a residence or temporary residence may give consent to utilizing such a video device and not have to remain within the premises.

Last evening, Bruce Hulme provided Larry Sabbath with a copy of　the draft language below which the Senator's staff had transmitted to Stu Drobny. ISPLA is pleased that despite the reluctance of the present leadership of NCISS to accept ISPLA's offer of free PAC services, the two organizations were able to work in tandem on this particular legislative issue. It is grateful to Stu for facilitating this dialog and the resulting mutual cooperation.

Senator Specter's office has advised us:

"... regarding the Surreptitious Video Surveillance Act of 2010 (S.3214).... S 3214 applies only to surreptitious video surveillance in residences – not other locations – and does not make illegal video surveillance conducted inside a residence if made with the consent of "an individual present in the area," or of "a resident of the temporary or permanent residence" who does not need to be present at the time of the surveillance. See sec. 2523(a)(3)(A) of S-3214.

"Nevertheless we understand the concerns of private investigators. As we discussed, we have made some changes to the language of the bill to address those matters to address those concerns. I have attached the bill - in word format - with the changed language in yellow highlight. This revised bill could be made part of a managers’ amendment at a markup once the bill is listed."　

Notwithstanding the fact that this bill in its present form now poses no problem to this profession, privacy advocates may very well endeavor to make detrimental changes to it as the bill advances. Nicole Bocra, and other members of ISPLA's legislative affairs committee, will continue to work with Senator Specter's office to ensure that the final bill contains the additional draft language as written below.　

ISPLA Executive Committee　　

Message From Larry Sabbath - NCISS Legislative Avocate

Update on S 3214 "Surreptitious Video Surveillance Act"

Last week Jimmie Mesis, NCISS member Stu Drobny and I attended a meeting with staff of the Senate Judiciary Committee 　to discuss our concerns with S 3214, the Surreptitious Video Surveillance Act".　 The meeting was arranged by Stu after he had discussed the issue with Senator Arlen Specter, (D-PA), the bill's sponsor.　 At the meeting, Jimmie suggested that the bill make clear that the only surveillance to be restricted would be that done in a residence.　 Today, the staff forwarded the attached revision of the legislation to include the clarification.　 NCISS will continue to work with the staff throughout the legislative process to assure the bill remains limited in scope.

Here is the revised text of the bill with the changes highlighted in yellow:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

This Act may be cited as the "Surreptitious Video Surveillance in a Residence Act of 2010".

SEC. 2. PROHIBITION ON USE OF VIDEO SURVEILLANCE IN A RESIDENCE.

(a) In General.-Chapter 119 of title 18, United States Code, is amended by adding at the end the following:

"2523. Prohibition on use of video surveillance in a residence

"(a) Definition.-In this section, the term 'video surveillance'-

"(1) means the intentional acquisition, capture, or recording of a visual image or images of any individual if-

"(A) the individual is in an area of a temporary or permanent residence that is not readily observable from a public location;

"(B) the individual has a reasonable expectation of privacy in the area; and

"(C) the visual image or images-

"(i) are made without the consent of-

"(I) an individual present in the area; or

"(II) a resident of the temporary or permanent residence; and

"(ii) are-

"(I) produced using a device, apparatus, or other item that was mailed, shipped, or transported in or affecting interstate or foreign commerce by any means; or

"(II) transported or transmitted, in or affecting, or using any means or facility of, interstate or foreign commerce, including by computer; and

"(2) does not include security monitoring devices installed or operated by, or at the direction of, the owner or leaseholder of the property.

"(b) Prohibition on Video Surveillance.-It shall be unlawful for any person to engage in any video surveillance, except-

"(1) as provided in this section; or

"(2) as authorized under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

"(c) Treatment as Electronic Surveillance.-

"(1) In general.-Subject to paragraph (2)-

"(A) video surveillance shall be considered to be an interception of an electronic communication for the purposes of this chapter; and

"(B) it shall not be unlawful for a person to engage in video surveillance if the video surveillance is conducted in a manner or is of a type authorized under this chapter for the interception of an electronic communication.

"(2) Exception.-Sections 2511(2)(c), 2511(2)(d), 2512, 2513, and 2518(10)(c) shall not apply to video surveillance.

"(3) Prohibition of use as evidence of video surveillance.-

"(A) In general.-No part of the contents of video surveillance and no evidence derived from video surveillance may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof if the disclosure of the video surveillance would be in violation of this chapter.

"(B) Motion to suppress.-

"(i) In general.-Any aggrieved person in any trial, hearing, or proceeding described in subparagraph (A) may move to suppress the contents of any video surveillance conducted under this chapter, or any evidence derived from the video surveillance, on the grounds that-

"(I) the video surveillance was unlawfully conducted;

"(II) the order of authorization or approval under which the video surveillance was conducted was insufficient on its face; or

"(III) the video surveillance was not conducted in conformity with the order of authorization or approval.

"(ii) Timing of motion.-A motion made under clause (i) shall be made before the trial, hearing, or proceeding unless-

"(I) there was no opportunity to make such motion; or

"(II) the aggrieved person described in clause (i) was not aware of the grounds of the motion.

"(iii) Remedy.-If the motion made under clause (i) is granted, the contents of the video surveillance, or evidence derived from the video surveillance, shall be treated as having been obtained in violation of this chapter.

"(iv) Inspection of evidence.-The judge, upon filing of a motion under clause (i), may, in the discretion of the judge, make available to the aggrieved person or counsel for the aggrieved person for inspection such portions of the video surveillance or evidence derived from the video surveillance as the judge determines to be in the interests of justice.

"(v) Right to appeal.-

"(I) In general.-In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion made under clause (i), or the denial of an application for an order of approval, if the United States attorney certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay.

"(II) Filing deadline.-An appeal under subclause (I) shall-

"(aa) be taken within 30 days after the date the order was entered; and

"(bb) be diligently prosecuted.".

(b) Chapter Analysis.-The table of sections for chapter 119 of title 18, United States Code, is amended by adding at the end the following:

"2523. Prohibition on use of video surveillance in a residence.".

HR 5107/S 3648, the Employee Misclassification Prevention Act

Thu, 29 Apr 2010 21:56:11 GMT

HR 5107/S 3648, the Employee Misclassification Prevention Act

On April 22, 2010, HR 5107/S 3254, the “Employee Misclassification Prevention Act”, identical bills, were introduced in the House and Senate. The bills’ intent is to address the issue of misclassification of employees as independent contractors.

The House bill was introduced by Rep. Lynn Woolsey, (D-CA-6) and Senate bill by Sen. Sherrod Brown, (D-OH). The bills, H.R. 5107 and S. 3254, would amend the federal Fair Labor Standards Act to impose strict record keeping and notice requirements on businesses with respect to workers treated as independent contractors, exposing such businesses to fines up to $1,100 or up to $5,000 per employee for each violation of the law if repeatedly or willfully committed. Employers would have to provide new hires with a notice explaining their rights. Furthermore, should the EMPA be passed, it is thought that non-compliance may lead to criminal penalties, as the federal government is planning on going after companies in an aggressive fashion and is hiring increased staff already for this purpose. The Department of Labor will audit employers subject to the Fair Labor Standards Act of 1938 that are conducted by the Wage and Hour Division, targeting those industries with known frequent incidence of misclassifying employees as non-employees.

The EMPA does not prohibit businesses from continuing to use independent contractors, provided they are properly classified as such. The bill only prohibits companies from misclassifying workers as independent contractors when such workers are not really independent contractors, but employees.

All businesses would, nonetheless, be affected by EMPA, because it imposes upon every company that uses either employees or independent contractors a recordkeeping and a notice requirement. In addition, any business that fails to provide the required notice under EMPA would be subject to fines, even if its independent contractors are properly classified.

I recommend you take a look at recent well researched article authored by three attorneys with the Pepper Hamilton, LLP firm - Richard J. Reibstein, Lisa B. Perkins and Jonathan A. Clark titled Independent Contractor Misclassification: How Companies Can Manage Their Risks:

http://www.pepperlaw.com/publications_article.aspx?ArticleKey=1769

Independent contractors are referred to as freelancers, consultants, per diems, contractors, project workers, temps, specialists and are found in virtually every industry. Some companies used temporary employment agencies to supply long-term temps. Some companies use independent contractors to augment their workforce, while other businesses, such as transportation companies, often have more independent contractors than employees. And, some contract security and investigative firms are also known to use such independent contractors to perform bodyguard, security, surveillance and outside investigative services.

States have often classified workers and brought actions against employers for labor and tax violations in reference to improperly classifying independent contractors. Now the federal government appears poised to do the same should this legislation be enacted.

ISPLA will initially be consulting with our member firms that might be at risk and will work closely with our other association partners concerned with this legislation.

Please visit www.ISPLA.org for future updates on this and other important issues. ISPLA is singularly focused on addressing ill-conceived legislation and over burdensome regulation through our lobbying efforts and ISPLA-PAC activity.

Bruce Hulme

ISPLA Director of Government Affairs

Tel: (212) 962 4054

ISPLA Current Legislative News

ISPLA Supports CCW Reciprocity

Sec. 926D. Reciprocity for the carrying of certain concealed firearms

BACKGROUND AND NEED FOR THE LEGISLATION

I. THE CURRENT STATUS OF CONCEALED CARRY LAWS

II. EFFECTS OF CONCEALED CARRY ON PUBLIC SAFETY

III. NATIONAL RECIPROCITY UNDER H.R. 822

HEARINGS

DISSENTING VIEWS

INTRODUCTION

DESCRIPTION AND BACKGROUND

CONCERNS WITH H.R. 822

I. IMPOSING NATIONAL CONCEALED CARRY RECIPROCITY INFRINGES STATES' RIGHTS TO PROTECT THEIR CITIZENS FROM GUN VIOLENCE

Federal Court Records Being Destroyed

SAFE Data Act and Phone Hacking Fall-out

ISPLA Update: Phone Hacking Scandal by the Numbers

S 1011, HR 1841 & HR 1895 Updates!

New Bill HR 1707 Data Accountability and Trust Act

Expect New Legislation Regarding Software Installed On Computers

ISPLA With INTELLENET in DC

FTC and Google Settle Charges over Social Network Privacy Issues

FTC Charges Deceptive Privacy Practices in Google's Rollout of Its Buzz Social Network

Google Agrees to Implement Comprehensive Privacy Program to Protect Consumer Data

Internet Privacy Update

CA PII includes ZIP codes

Michigan State Senator endorsed by ISPLA in run for Congress

Surreptitious Video Surveillance

Social Security Identity Defense Act

Petri Bill Would Enlist IRS Against Identity Theft

Sixth Amendment and Indigent Defense Issue

HR 5777, the Best Practices Act and a bill requiring notice and consent...

Consumer Financial Protection Agency and New Federal Bills Update

Michigan Vehicle Tracking bill becomes law. PIs receive exemption.

ISPLA Update: Revision S 3214 Surreptitious Video Surveillance in a Residence Act of 2010

HR 5107/S 3648, the Employee Misclassification Prevention Act