Judge Overturns Lori Drew Misdemeanor Convictions

A federal district court judge today threw out the misdemeanor convictions of Lori Drew after the judge determined that the federal anti-hacking statute under which Drew was prosecuted was inapplicable to the allegation that she violated MySpace's terms of service. Drew was convicted by a jury in November of 2008 of violating the Computer Fraud and Abuse Act (CFAA) which bars "unauthorized access" to a computer. Prosecutors argued that Drew had violated the CFAA by harassing 13-year-old neighbor Megan Meier through the use of a fake Myspace profile, harassment that prosecutors say directly led to Meier's suicide.

EFF, along with the Center for Democracy and Technology, Public Citizen, and 14 law professors and faculty members, filed an amicus brief in August arguing that the court should dismiss the CFAA claims against Drew because terms of service violations do not constitute crimes under the Act. Regardless of whether Drew could be held criminally liable under a different theory, EFF argued that the theory pursued by prosecutors was inappropriate.

U.S. District Judge George H. Wu stated that his opinion would become final when his written opinion was filed, likely next week.

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Apple Rejects EFF Updates App, Claims Parody Content Is Objectionable

Last month, EFF got an email from software developer Duane Fields of Exact Magic, asking if he could use our logo on an iPhone application that exclusively displays content from EFF's RSS feed. Sounded like a great idea to us, as long as it was clear that the app wasn't an EFF-sponsored product.

But this morning Apple rejected the app. Why? Because it claims EFF's content runs afoul of the iTune's App Store's policy against "objectionable" content. Apparently, Apple objects to a blog post that linked to a "Downfall" parody video created by EFF Board Chairman Brad Templeton. The parody casts Hitler in the role of entertainment industry executive, ranting about the failure of DRM and the continued popularity of fair use. The parody includes the fleeting appearance of the f-bomb in a subtitle.

Now, Apple may find EFF "objectionable" for any number of reasons (here's just one.) But surely linking to a video that includes a "bad word" can't be one of them. After all, the YouTube app that Apple includes on every iPhone that ships will let you watch exactly the same video, bad word and all. And you can use the Safari web browser that ships with every iPhone to access EFF's website, as well as millions of web sites that include much more extreme language.

This is just the latest example of the failings of Apple's iTunes App Store approval process, which has been revealed to be not just anti-competitive, discriminatory, censorial, and arbitrary, but downright absurd. Just last month, Apple was widely criticized when it rejected the Eucalyptus e-book reader because it could access the public domain translation of the Kama Sutra (Apple quickly reversed course on that one).

Let's be clear: we are not saying that Apple has to carry apps it doesn't like in its App Store. But iPhone owners who don't want Apple playing the role of language police for their software should have the freedom to go elsewhere. This is precisely why EFF has asked the Copyright Office to grant an exemption to the DMCA for jailbreaking iPhones. It's none of Apple's business if I want an app on my phone that lets me read EFF's RSS feed, use Sling Player over 3G, or read the Kama Sutra.

UPDATE: Apparently, Apple has changed its mind and has now approved the EFF Updates app. This despite the fact that the very same material is still linked in various EFF posts (including this one!). Just one more example of the arbitrary nature of Apple's app approval process.

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Judge Takes Government to Task in Al-Haramain Spying Case

Today, United States District Court Chief Judge Vaughn Walker took the government to task for failing to obey his prior orders in Al-Haramain v. Obama (formerly known as Al-Haramain v. Bush), asking the government to explain why he should not sanction the government by holding that the plaintiffs win the warrantless wiretapping lawsuit.

On January 5, Chief Judge Walker had denied the government's third motion to dismiss the Al-Haramain litigation and set up a process to allow the Al Haramain plaintiffs to prosecute the case while protecting classified information. On February 28, 2009, the Ninth Circuit Court of Appeals denied the government's appeal of that order. The government did not seek an appeal to the Supreme Court.

Today, the Court noted the government was "continuing to assert legal positions already specifically rejected by the court in previous orders" and "government officials in one or
more defendant agencies, including the NSA Director ... are refusing to cooperate with the court’s orders." Judge Walker ordered the government to show cause as to "why, as a sanction for failing to obey the court’s orders" the government "should not be prohibited ... from opposing the liability" for spying without warrants and that the "court should not deem liability ... established and proceed to determine the amount of damages to be awarded to plaintiffs." A hearing is set for June 3, 2009 in the San Francisco federal court.

Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA).

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Administration Introduces Open Government Initiative Websites

The Obama Administration has launched several websites to further its commitment on the first full day of Obama's presidency to improving transparency and encouraging citizen participation in government.

On the transparency side, the Administration launched the hotly anticipated data.gov, a site that provides the public access to machine readable datasets from government agencies. The goal is to inspire innovative uses of government data by developers and researchers -- a process that has already begun with the Apps for America 2 contest, sponsored by the Sunlight Foundation, Google, O'Reilly Media, and TechWeb. The Administration also introduced the Innovations Gallery, which highlights pro-transparency efforts of government agencies.

On the side of citizen participation, the government is seeking public submissions to the Open Government Dialogue, a collaborative "idea" site (much like the "Join the Discussion" site used by the Obama transition team). The site will collect and rank policy ideas from the public on topics such as transparency, participation, collaboration, capacity building, legal and policy challenges, and more. The Open Government Dialogue is the first step in a three-part policymaking process that will include blog discussions and collaborative editing of the penultimate recommendations on a wiki. The Administration also relaunched regulations.gov to let the public voice opinions about government rulemakings.

While the Administration's early track record on transparency definitely leaves much to be desired, we're excited to see the government using the participatory, collaborative power of the web to enhance policymaking processes. We look forward to seeing more steps from the Administration to make the promise of government transparency a reality.

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EFF Issues Report on FBI Investigative Data Warehouse

Today EFF issued a report about the Investigative Data Warehouse, a gigantic billion-document storehouse of information maintained by the FBI. In addition, EFF wrote to Senate Judiciary Committee Chairman Patrick Leahy and House Judiciary Committee Chairman John Conyers, asking Congress to examine the IDW.

In August 2006, EFF sought documents about the IDW under the Freedom of Information Act. Three years of litigation later, the FBI has said that no more information will be forthcoming, despite the Obama Administration's new policies on open government. This report is based upon the documents provided in the litigation, as well as public information about the huge data warehouse.

The IDW contains at least 53 datasets, and includes more than four times as many unique documents as the Library of Congress. The report lists 38 of these datasets, which encompass not only information about suspects, but all individuals referenced in FBI investigations. In
addition, the report discusses the systems architecture and technical features of the IDW.

While the FBI has refused to publicly release any Privacy Impact Assessments about the IDW, the report discusses the FBI's efforts to avoid "raising congressional consciousness levels and expectations" about PIAs, and to give a “sense that we really do worry about the privacy interests of uninvolved people whose data we slurp up."

Finally, the report discusses the future of the IDW. Moving forward, the FBI has asked for millions of dollars to increase its use of the IDW for “link analysis” (looking for links between suspects and other people – i.e., the Kevin Bacon game) and to start “pattern analysis” (defining a “predictive pattern of behavior” and searching for that pattern in the IDW’s datasets before any criminal offense is committed – i.e., pre-crime).

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RealDVD v. DVD-CCA: The Duel Begins In Earnest

Opening shots were fired Friday in the RealNetworks v. DVD-CCA case. Unfortunately, the public was excluded from key parts of the battle, when the presiding judge, Marilyn Hall Patel, granted DVD-CCA's request to close the courtroom.

Some quick background: In September 2008, the motion picture industry sued RealNetworks over its RealDVD software, which was designed to allow consumers to copy their DVDs to their computers for later playback. Real had obtained a license from DVD-CCA for its Content Scramble System ("CSS") software, following a path blazed by Kaleidescape in an earlier court fight, DVD-CCA v. Kaleidescape, where a California state court rejected the DVD-CCA’s argument that Kaleidescape's licensed digital DVD jukebox violated the DVD-CCA license. Despite this precedent favoring Real, Judge Patel ordered a temporary halt to distribution of RealDVD in October 2008. At issue now is whether that temporary injunction will stay in place until the case is resolved. Such an injunction, Real's attorney told the court Friday, would sound the "death knell" for the product.

On Friday, the first day of what is expected to be a three day hearing, the movie studios claimed that Real deliberately circumvented several layers of technical protections built into DVDs, including not just CSS but also ARccOS, RipGuard, bus encryption and bus authentication.

Anticipating Real's claim that its technology facilitates fair use, the studios also insisted that fair use never excuses digital copying of a DVD, and that they have a right to be paid for every additional copy made. As the attorney for the DVD-CCA put it: "DVD-CCA doesn't license copying." In fact, he argued, the license forbids it. The technical, procedural and general "specifications" that accompany the CSS license describe what an authorized product can do. If the licensee follows the steps laid out in the specifications, he said, it will get an legal player--but not a copier. The DVD-CCA also argued that Real knew the licensing consortium didn't intend to permit copying because of the positions it took in the Kaleidescape case.

The studios and DVD-CCA did their best to portray RealDVD as a massive threat to Hollywood, arguing that the technology will encourage consumers to "rent, rip and return" rather than buying DVDs, and that the 5 copy limit built into the technology was hardly an effective limit. Judge Patel asked, as she did at the TRO hearing, whether those 5 copies can be copied. Answer: Yes and no. They can be copied, but can only be played on an authorized computer--but Real could "easily" change that.

Real, for its part, sought to frame the case as a dispute about legitimate competition. The question, said Real's attorney, is whether the studios' copyrights can be extended to control competition and fair use. But doesn't copyright give the right to exclude? asked Judge Patel. Yes, the attorney replied, but not when the use in question is a fair use. "If someone wants to make a copy of something they own," Real's lawyer went on, "do they have to pay the studios again?" Real argued that it did not violate the CSS license because its product not only wraps CSS around every copy made, it adds a second layer of DRM, Advanced Encryption Standard, which is "30 septillion times harder to break" than CSS. (The studios argue that this second layer of protection is really intended to lock consumers into Real's own business model). This case is not about security, said Real’s lawyer--DVDs are "safer" when they are copied with Real technology than at any other time.

The studios and DVD-CCA then presented their first witness, Marsha King, an attorney who helped craft the original CSS license. After a lunch break, they asked Judge Patel to close the courtroom before they presented their second witness, Dr. John Kelly. Kelly’s testimony, they claimed, would concern the CSS technology and the DVD-CCA licensing documents, and necessarily reveal closely held trade secrets. Greg Sandoval of CNet challenged the closure, noting that much of the technology at issue in the case was already public, and that the trial in the Kaleidescape case had been open to the public (although a few exhibits had been sealed.) Real also opposed closure, although not "adamantly," calling the court's attention to a 2004 California Supreme Court ruling which recognized that CSS technology may have lost its trade secret status. The defendants (with DVD-CCA taking lead) responded that while some technology might be publicly available, the DVD-CCA technical specifications are still a closely guarded secret. Judge Patel ordered the defendants to present any testimony that did not involve trade secrets first, and then closed the courtroom.

The hearing will resume Tuesday, April 28, so stay tuned for further reports.

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Senator Specter: "The Need to Roll Back Presidential Power Grabs"

Senator Arlen Specter (R-PA) published a detailed opinion column in the New York Review of Books today, proposing "legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration's warrantless wiretapping program."

While telecom immunity legislation passed Congress last year, EFF's litigation against the telecommunications giants remains pending before the Court, as Judge Vaughn Walker considers whether the controversial legislation is constitutional. Senator Specter's bill "would substitute the government as defendant in place of the telephone companies."

Senator Specter would also allow the Supreme Court to review "the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11." As the Pennsylvanian Republican noted, the "new administration has reasserted the 'state secrets' privilege to block lawsuits challenging controversial policies like warrantless wiretapping." Indeed, the Obama Administration has taken Bush's arguments further.

A simple repeal of the telecom immunity would be better than Specter's substitution proposal. Nevertheless, a real substitution bill (including a waiver of the controversial sovereign immunity arguments raised the the Jewel litigation) would be an important step forward in redressing the violation of the rights of millions of ordinary Americans. We look forward to reading the proposed legislation, and appreciate that Congress is asserting its critical role as a check on executive powers.

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NY Times Reports New Revelations About Wiretapping Program

The New York Times reported today that the National Security Agency (NSA) "had been engaged in 'over-collection' of domestic communications of Americans," by which the NSA would spy on "groups of Americans and collect their domestic communications without proper court authority." According to the Times, a review conducted over the course of the Presidential transition revealed "that the N.S.A. was improperly capturing information involving significant amounts of American traffic."

The Times also reported new information on "earlier domestic surveillance activities, including the agency’s attempt to wiretap a congressman without court approval on an overseas trip." In addition, "a senior F.B.I. agent recently came forward with what the inspector general’s office described as allegations of 'significant misconduct' in the surveillance program... Those allegations are said to involve the question of whether the N.S.A. targeted Americans in eavesdropping operations based on insufficient evidence tying them to terrorism."

EFF is litigating against both the telecoms and the government in an effort to stop the illegal spying on millions of ordinary Americans. Take action now!

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Disability Access Activists Gather to Protest Kindle DRM

Yesterday, hundreds of people gathered in front of the headquarters of The Authors Guild in New York City to protest the removal of text-to-speech capabilities in Amazon's new Kindle 2 ebook device.

You may remember a few months ago, when The Authors Guild claimed (falsely) that the text-to-speech feature violated copyright law, and forced Amazon to disable it.

Now, the people who would have benefited most from the new feature — the blind, and others with reading disabilities — have made it clear that they're not going to stand for it.

Gizmodo's John Mahoney was there and has excellent coverage. He writes:

Everything was of course peaceful and contained right in front of the Authors Guild's seventh floor offices on 32nd street on Manhattan's east side. They had a pretty fantastic march ring set up, with many folks leading those who could not see at all in the ring, and sighted people whose job was to tell the marchers when to turn. Several seeing eye dogs joined in expressing their distaste.

Manon Ress of Knowledge Ecology International also attended and blogged the protest:

It is not that easy for 300 plus people (even with super smart dogs) and kids in tow to walk in a long circle for two hours holding big signs... These people were tough. It was an honor to walk with them.

In a statement, The Authors Guild called the protest "unfortunate and unnecessary," and declared, "We will not surrender our members' economic rights to Amazon or anyone else." They offered a novel solution to the problem: Amazon could maintain a registry of verified blind and disabled people, who would be granted special permission to use the text-to-speech feature.

The suggestion is of course ridiculous. Contrary to The Authors Guild's claims, the text-to-speech feature does not violate copyright law and does not pose any competitive threat to writers. The feature should be enabled for all Kindle customers, not just those with disabilities. The Authors Guild rightly laments "how difficult the road ahead is for the already fragile economics of authorship" — but this is exactly why it was nonsensical of them to force Amazon to adopt a system that has made it more difficult for blind and disabled customers to legally purchase and read authors' works.

If you couldn't make the protest, but would like to support The Right To Read campaign, consider signing their petition to The Authors Guild. Many signers included a short personal story with their signature, and KEI's James Love has posted dozens of the most striking stories on Huffington Post. Here are a few that caught my eye:

Ann Marie Deverson, Florida: My daughter is visually impaired and she should be able to have access to the same literature everyone else does. I would think most authors would like to attract a wider audience. Braille books aren't always available, so why should my daughter and everyone else in the world who is blind or visually impaired be restricted access.

Martha Thorp, Kansas: Back in the day, books on tape saved me when I was unable to physically read and/or hold a hard-copy publication. In this time of highly refined technology, the act of preventing access to information is unthinkable.

Glenn Crosby, Louisiana: Access to printed material is critical to blind and other print disabled people if we are to compete effectively with our sighted counterparts, and as someone who reads "talking books" regularly, I would love to have access to a broader variety of materials. Not only that, I feel that since I am willing to pay for books, I should be able to access them just as others do.

The protest over the Kindle is just one area where disability rights are intersecting the fight over IP law. Globally, groups like the World Blind Union, EFF and KEI are working to ensure that copyright's exceptions and limitations really do provide the access to knowledge that lawmakers intended, and are not impeded by inconsistencies or overreaching anti-circumvention provisions.

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Stating the Case Against DRM to the FTC

Wednesday, EFF Staff Attorney Corynne McSherry will be testifying at the Federal Trade Commission's (FTC) town hall meeting on digital rights management technologies, or DRM. After years of observing DRM's development, suing Sony for its destructive SecuROM DRM, defending free speech for researchers and bloggers, and speaking out against DRM's use, EFF's stance is quite clear: DRM is harmful to consumers, it undermines competition and innovation, and unnecessarily preempts users' fair uses of copyrighted content -- all while making no appreciable dent in "digital piracy." In fact, generally the only ones who are inconvenienced by DRM are legitimate customers.

The FTC's desire to understand more about the harms of DRM comes at a particularly important moment. On one hand, the practice of placing digital copy protections on music is receding, because it had no impact on music piracy and has severely hobbled the music industry's efforts to "compete with free" (of course, this was all detailed in the famous "Microsoft Darknet paper" back in 2002). On the other hand, DRM is emerging as the favored way to enforce "lock-in" and crack down on legitimate competition -- see, for example, the technologies used to prohibit you from taking your cell phone to a different wireless service carrier. There's a growing number of examples where incumbents use DRM technologies, backed by the Digital Millennium Copyright Act (DMCA) and End-User License Agreements (EULAs), to hamper consumers' rights and stifle competition.

You can read our filing for the full comments we filed with the FTC. EFF recommends that the FTC engage in a breadth and depth of study that others generally cannot -- for example, by investigating DRM's effect on competition, examining in particular the activities of inter-industry consortia such as AACS and DVD-CCA. And ultimately, EFF hopes that the FTC publishes a best practices guide and issues a strong statement in support of consumers' rights. While those steps won't quite solve the harms caused by DRM, they will at least put a much-needed limit on the burdens imposed on consumers until greater reforms can be made.

Updated 3/25 10:20am PT: The hearing is underway! You can watch live streaming video on the FTC's website.

Updated 11:20am: You can also follow or join a discussion of the hearing on Twitter using the hash-tag #FTCDRM.

Updated 3/26 3pm: The hearing has ended. We'll be posting a summary of the highlights once the transcript becomes available.

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