Stealth PATRIOT Expansion Stalled - For Now

Posted by Donna Wentworth

The Senate Intelligence Committee failed yesterday to reach agreement on the stealth PATRIOT expansion bill that would give the FBI expanded power to dig through the private records of people who aren't accused of any wrongdoing. The New York Times has the scoop (reg. req.), including a choice quote from Senator Ron Wyden (D-OR):

"The committee met in private for two and a half hours amid continuing complaints from civil liberties advocates and some Democrats that the proposal would give federal investigators too much power to conduct 'fishing expeditions' in pursuing terrorism leads. Senate Republican leaders and the Bush administration, who are backing the proposal, say it provides the F.B.I. with essential tools in fighting terrorism.

'You can fight terrorism ferociously without throwing people's rights in the trash can,' Senator Ron Wyden, Democrat of Oregon and a member of the committee, said after emerging from the meeting."

This is good but not great news: we achieved push-back, but it will take more than that to stop the bill from moving out of committee. Committee members will likely reconvene for another mark-up session next week, so it's vital to keep the pressure on. If you live in a state with a senator on the committee, write, fax, or call today:

REPUBLICANS
Pat Roberts (KS), Chair, 202-224-4774
Orrin Hatch (UT), 202-224-5251
Mike DeWine (OH), 202-224-2315
Christopher Bond (MO), 202-224-5721
Trent Lott (MS), 202-224-6253
Olympia Snowe (ME), 202-224-5344
Chuck Hagel (NE), 202-224-4224
Saxby Chambliss (GA), 202-224-3521
John Warner (VA), 202-224-2023

DEMOCRATS
John Rockefeller (WV), Ranking Member, 202-224-6472
Carl Levin (MI), 202-224-6221
Dianne Feinstein (CA), 202-224-3841
Ron Wyden (OR), 202-224-5244
Evan Bayh (IN), 202-224-5623
Barbara Mikulski (MD), 202-224-4654
Jon Corzine (NJ), 202-224-4744

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PATRIOT III: Justice Department Asks Congress to Expand Its Spying Powers - Again

Posted by Donna Wentworth

Last week we warned you about a new stealth PATRIOT-expansion bill that the Senate Intelligence Committee will consider in closed session later this week. In addition to renewing many of the USA PATRIOT Act's most troubling provisions, the new bill would give the FBI the power to issue so-called "administrative subpoenas." These new national security subpoenas would allow the FBI to secretly demand the private records of people who aren't even suspected of a crime, much less of spying or terrorism -- all without a judge's prior approval. The FBI could get anything from Internet logs and emails from your Internet service provider, to health records from your doctor, to financial information from your bank.

The Justice Department has long sought this kind of unprecedented subpoena power for the FBI, but Congress has always said no -- even in the aftermath of the 9/11 terrorist attacks. Yet this Thursday the Senate Intelligence Committee will meet behind closed doors to mark up the new PATRIOT legislation, and it's entirely possible that the Justice Department will finally get its wish. Now is the time to act.

If your senator is on the Senate Intelligence Committee, write him or her today to oppose any renewal or expansion of PATRIOT surveillance powers, and to demand that the closed-door session be opened to the public.

EFF has already done just that, writing to the committee as part of a coalition of civil liberties organizations -- now it's your turn to speak up. Check out the links below to read our letter, write your own at the EFF Action Center, or just learn more about the bill:

• Read the coalition letter opposing administrative subpoenas [PDF]
• Make your voice heard with the EFF Action Center
• Draft legislation for new PATRIOT powers [PDF]
• Committee summary of the bill [PDF]
• Plan to Let FBI Track Mail in Terrorism Inquiries [May 21, NYT; reg. req.]
• Democrats Fault Plan for FBI [May 20, NYT; reg. req.]
• Plan Would Broaden FBI's Terror Role [May 19, NYT; reg. req.]
• Expanded Patriot Act To Be Proposed [May 19, NYT; reg. req.]
• Senate Committee to Mull Expanded Police Powers [May 18, Reuters]

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EFF Members Build Liberated TVs

Posted by Wendy Seltzer

Lots of people were watching television at EFF's offices Saturday -- not on television sets, but on high-definition personal video recorders (PVRs) they built themselves. EFF hosted the DTV build-in to celebrate our courtroom victory over the FCC's Broadcast Flag.

As the Chicago Tribune put it:
"Imagine a government bureaucrat sitting on top of your television set to decide if you can record a television show to watch later." That's what the Broadcast Flag would have done. The Broadcast Flag rule gave the FCC power to veto new TV technologies, whether created by consumer electronics manufacturers or Saturday hobbyists. By beating the flag, we gave manufacturers and hobbyists the right to build devices they and their customers want, to watch and record TV as they choose.

Hollywood is now going back to Washington, asking Congress to give FCC the power to impose the Broadcast Flag. The Tribune reminds us these same industries protested the sale of VCRs, too -- nearly killing what's now a cash cow.

Now it is digital television that offers a seemingly endless range of entertainment choices and services. But, like all new technologies, its potential can be hampered by overzealous politicians and regulators whose reflexes lag far behind the rapidly changing marketplace and public tastes.

Movie viewers, producers, and distributors have benefited mightily from technology that offers consumers more choices. Congress should think long and hard before telling people they will not be able to use the newest technology at their convenience.

If you agree, tell Congress not to break your television. Ask your representative to reject the Broadcast Flag and any other government technology mandate that will interfere with technological innovation.

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ISP Liability Debate in Regulation Magazine

Posted by Fred von Lohmann

The most recent edition of Regulation, a magazine published by the Cato Institute, includes an excellent article entitled "Against ISP Liability" [PDF] by Cato's own Jim Harper.

Jim's article responds to an earlier article by Professor Douglas Lichtman, "Holding Internet Service Providers Accountable" [PDF], in which Doug argues in favor of holding ISPs liable for "malicious computer code" (viruses, worms, and other malware) that propagates over the Internet. A lengthier version of his argument is available at SSRN.

In my view, Jim has the better of this argument, pointing out that putting ISPs on the hook will inexorably lead to the lock-down of the Internet, as ISPs rush to protect themselves, often at the expense of the privacy and freedoms of their subscribers:

"Lichtman's proposal would drive responsibility from the edge of the network toward the center. By forcing intelligence into the middle of the network, ISP liability would push the Internet from a wide-open network toward something far more sclerotic."

Whatever your views on the ultimate question, it's a stimulating exchange between two smart thinkers.

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Academics Analyze TOR Security in Paper at IEEE Symposium

Posted by Annalee Newitz

Two computer scientists from Cambridge University, Steven Murdoch and George Danezis, presented a paper on the anonymous communication system Tor earlier this week at the IEEE Symposium on Security and Privacy. Entitled "Low-Cost Traffic Analysis of Tor," the paper describes one possible attack on Tor's security that allows an attacker to learn the nodes in a user's circuit, but not the identity of the user. The attacker must also control the server that users are trying to reach. But no aspect of the attack compromises user anonymity -- Tor users' identities are still secure.

"The paper is useful because it points out problems in some future design directions we were considering," said Tor developer Roger Dingledine. "I'm happy that we're getting serious academic research on Tor, and I'm happy that they didn't discover any attacks that could uncover users' identities. The next research question here is to try to show that their attack becomes weaker as the Tor network grows."

Tor is an open source, anonymous communication tool for the Internet, developed primarily by Dingledine and Nick Mathewson, and is currently supported by EFF.

"The reason Murdoch and Danezis picked Tor for their paper is that Tor is publicly documented, easily accessible, and is the free-route system to research," said Mathewson. "Not only is Tor advancing the state of anonymity research, but it's also getting better each time we learn about a new vulnerability."

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Keep On Anonymizing

Posted by Annalee Newitz

Response to EFF's white paper on how to blog anonymously has been overwhelming. While there have been plenty of positive reactions, there are also a few basic criticisms we'd like to respond to. They boil down to two questions: (1) why didn't you mention more/better ways to be anonymous? and (2) why is EFF encouraging people to be anonymous when the organization stands for free speech?

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Waving Flags of Victory

Posted by Wendy Seltzer

In a unanimous decision, the DC Circuit Court of Appeals tossed out the broadcast flag, the FCC rule that would have crippled digital television receivers starting July 1. The ruling came in ALA v. FCC, a challenge brought by Public Knowledge, EFF, Consumers Union, the Consumer Federation of America, the American Library Association, the Association of Research Libraries, the American Association of Law Libraries, the Medical Library Association, and the Special Libraries Association.

The court ruled, as petitioners argued, that the FCC lacks the authority to regulate what happens inside your TV or computer once it has received a broadcast signal. The broadcast flag rule would have required all signal demodulators to "recognize and give effect to" a broadcast flag, forcing them not to record or output an unencrypted high-def digital signal if the flag were set. This technology mandate, set to take effect July 1, would have stopped the manufacture of open hardware that has enabled us to build our own digital television recorders.

This is extraordinary victory for fair use and innovation.

The fight isn't over yet, though. The flag's proponents at the MPAA will head to Congress to get authority for the rule, and we'll need your help to fight it.

If Congress takes this up, we hope it will address the important public interest concerns raised by this unprecedented federal technology mandate. During the development of the broadcast flag, both before and after it was submitted to the FCC, the concerns of smaller innovators (like Elgato Systems, leading maker of HDTV PVR software for the Mac), libraries, archives, consumer groups, and open source developers were ignored. Congress will have an opportunity to correct this mistake if it takes up this issue.

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Playing Hide-the-Ball at WIPO

Posted by Ren Bucholz

On April 14-15 (after the three-day WIPO Development Agenda meeting, a.k.a. IIM), the WIPO Permanent Committee for Co-operation for Development Related to Intellectual Property (the PCIPD) met for its fourth session.

The PCIPD is a pre-existing WIPO sub-committee, formed in 1998. There's no formal relationship between the Development Agenda and the PCIPD; the only thing they have in common is the word "development." Despite that, the PCIPD meeting turned into a debate about the right venue to discuss WIPO's development efforts. On the one side, the US, the UK, Switzerland, Australia and many of the developed "Group B" countries called for a "reinvigoration" of the role of the PCIPD and argued that all discussion of WIPO's development activity should take place there (and by implication, only there).

On the other side, Brazil and Argentina (and the others in the Group of Friends of Development) were not thrilled about the prospect of having their cross-cutting proposal removed from a special inter-sessional meeting of the WIPO General Assembly -- the center stage, really -- and relegated to a sub-committee which had not met for almost two years, and the mandate for which was unclear. (The PCIPD has historically focused on WIPO's technical cooperation and assistance activities.)

As both Brazil and Argentina politely pointed out in their interventions (see below), the Group of Friends of Development proposal deals with a range of issues beyond WIPO's technical assistance. For instance, WIPO's role in norm-setting, WIPO's governance structure, and a proposal to establish an independent body (WERO) to co-ordinate and evaluate WIPO's research and provision of technical assistance are important elements of the proposal. Apart from the lack of capacity of PCIPD to address the full range of proposals, it was clear to all in the room that moving discussion of the Development Agenda proposal to the PCIPD (and out of the plenary level Development Agenda meeting) would have the effect of marginalizing development issue discussions within WIPO. And, of course, the fact that this discussion was taking place the day after the IIM had concluded with agreement to hold a further two meetings to discuss the Development Agenda and other proposals, called into question the whole point of the previous three days' discussions.

Unsurprisingly, the PCIPD ended without any substantive agreement about its role in WIPO's development activities or work program. No draft report was adopted. The Chair worked hard to get consensus on his meeting summary and a process for finalizing the draft report of the meeting, but even that was fraught with difficulty. In the end, it was agreed that the
PCIPD's fourth session would be suspended and re-convened on a date during the plenary proceedings of the General Assembly in September 2005, to consider adoption of the report. The full text of the Chair's summary and final resolution is reproduced here, and our notes from the meeting are after the jump.

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