EFF Launches Cooperating Techs Listserv

Posted by Donna Wentworth

Service Will Connect Technologists with Civil Liberties Cases

Are you a technologist interested in helping out on civil liberties cases? Are you an attorney looking for some help understanding technical issues in lawsuits? EFF is setting up a listserv to help connect technologists to attorneys on cases that are core to EFF's mission but beyond what we can handle in-house.

Over the years, EFF has connected hundreds of tech-savvy lawyers with potential clients through our Cooperating Attorneys listserv. This has worked so well, we thought we'd provide the same service for those who need technical assistance on litigation and civil liberties issues.

Here's how the Cooperating Techs list will work: Attorneys needing technical assistance on cases will contact us and let us know what kind of help they need and whether they can pay. After we receive the request and determine if it is appropriate for our list, we'll post a note to the list with a basic description of the project. (For example: "CA attorney needs a tech familiar with Microsoft Exchange servers to assist in recovering allegedly deleted email messages needed for lawsuit. Can pay reduced fee.")

If you're on the list and are qualified and interested, you contact us, and we'll connect you to the attorney. That's it. EFF won't investigate or vouch for either side -- we don't have those kinds of resources. We'll simply provide the connection.

Interested in being an Cooperating Tech? Send a note to cooptechs@eff.org with your name, email address, and the city/state in which you reside, and we'll add you to the list. If you're an attorney facing a tech civil liberties issue and could use some technical help, send a note to techhelp@eff.org, and we'll try to help you find someone.

[Permalink]

EFF15: How an Old Fart Traditional Lawyer Became an Online Activist

Posted by Jim Tyre

I've had a rather strong interest in protecting free speech for about 40 years. In the mid-sixties, when I was barely a teenager, I was suspended from school for engaging in activities similar to those described in the most famous case concerning the free speech rights of minors, Tinker v. Des Moines School District. My parents were supportive, they hired a lawyer for me, and my school backed down. When I went to law school and took my first job as a law clerk in 1977, I turned down a higher paying job so that I could work for Paul Selvin, one of the leaders of the fight against the McCarthy-era Hollywood blacklists, and considered by many to be one of the Deans of the First Amendment bar in California.

It's no surprise, then, that free speech work became a part of my practice from the beginning. However, perhaps because I'm considerably older than most EFF staffers (we joke that I'm their adult supervision, but little do they know that I'm an Honorary Teenager), I came to the Internet much later than many, not until about 1995. Quickly, though, I happened upon two issues that piqued my professional curiosity.

The first was censorware, less pejoratively known as filtering or blocking software. The second was the notion that code is speech.

(More after the jump.)

[Read the entire post]

Decision in Nitke Case Leaves Web Publishers at Risk

Posted by Annalee Newitz

Posting sexually explicit images on the Internet just got a lot more dangerous. On Monday, a vague, overbroad law that leaves millions of people vulnerable to prosecution for online obscenity was allowed to stand.

A three-judge panel in the Southern District of New York handed down the long-awaited decision [PDF] in Nitke v. Gonzales (formerly Nitke v. Ashcroft). Barbara Nitke, a New York photographer whose work includes explicit sexual images, brought the case in 2003 as a challenge to the obscenity provisions of the Communications Decency Act (CDA). Because she displays her work on a website, Nitke claimed that her freedom of expression was being chilled as a result of the unconstitutionality of these obscenity provisions. The crux of her argument about the CDA's unconstitutionality was that the law depends on a definition of obscenity that can only be determined in reference to "contemporary community standards."

Nitke's sexually oriented art is online, however, and can go out to any juristiction in the United States. In addition, there is no dependable way for her to screen out certain regions based on their community standards. Thus, she has no idea whether any given community viewing her work will deem it "appealing to the prurient interest," and therefore she might be prosecuted at any time for obscenity. She told the Court that her fears of prosecution had inhibited her from posting certain of her photographs. Clearly, her expresion had been chilled.

(Read on after the jump.)

[Read the entire post]

Equal Opportunity IP

Posted by Elizabeth S

When word got out recently that a trademark application for the San Francisco-based nonprofit group Dykes on Bikes was rejected, EFF did some further research into the grounds for rejection.

It turns out that despite the more than 400 pages of scholarship submitted in support of the application, the US Patent and Trademark Office relied on two dictionary definitions as proof that the word was "offensive." The first definition originated from an online version of the 1913 Webster's dictionary.

Beyond its age and out-of-date nature, the dictionary's definition also had the tag "PJC" on it. We were intrigued, so we decided to investigate further.

It turns out that "PJC" stood for Patrick J. Cassidy of Micra, Inc., the company that created the online version. Terms in the dictionary bearing his "tag" indicate that they were not, in fact, part of the original dictionary he had transcribed online but rather something that he himself had arbitrarily added.

So in essence, the PTO relied on a definition that was created at random by someone not at all associated with Webster's dictionary.

The second definition the PTO relied on came from an online dictionary of Spanish slang that listed "dyke" as a "vulgar word." Once again there was no accountability for the definition -- it was just one person's site giving what they consider vulgar words in Spanish.

The PTO gave no reason or justification for why these two websites were somehow more influential or credible than the over 400 pages submitted by DOB.

Interestingly, the PTO approved trademarks for "Hustler's Young Sluts," "Psychic Phone Whores," and "Psychobitch." All three terms -- "slut," "whore," and "bitch" -- are listed as vulgar in that Spanish slang dictionary the PTO chose to rely on in this case.

Here at the EFF we believe in equal opportunity for all in the world of intellectual property. It's not the proper role of a government office to pick and choose arbitrarily between rights granted to certain groups based on politics and culture, especially when it means giving the government the power to define what is "vulgar" or "offensive."

[Permalink]

Microsoft Sells Out the Public on CGMS-A

Posted by Derek Slater

Staff Technologist Seth Schoen, EFF's resident expert on trusted computing, recently attended this year's Windows Hardware Engineering Conference (WinHEC). This is the final post in a four-part series in which Schoen provides detailed updates on the status of Microsoft's security and lockware strategies for Windows. The outcome of these strategies will affect to what degree people using the platform and "trusted" PCs can maintain a desirable level of control over their own computers. Previous posts can be found here, here, and here.

*****

Although the Digital Millennium Copyright Act gave the public a raw deal, its reach is not unlimited. The DMCA's scope is expressly limited by the so-called "no mandate" clause, which establishes that technologies that deal with unencrypted, open standard media formats are not restricted by the DMCA. These technologies are unregulated even if the entertainment industries dislike them and even if they do not obey those industries' preferences for restricting users. Absent additional legislation, the copyright holders have no right to control general-purpose technologies -- like computers, sound cards, or software -- that deal only with open standards. That's why the Motion Picture Association of America has long sought new "technology mandate" legislation to go beyond the DMCA: to impose the broadcast flag, to "close the analog hole," and to regulate file-sharing software. Without such legislation, MPAA argues, the public will continue to have access to at least some avenues for making unauthorized uses.

Or will it? What if technology companies collaborate with Hollywood in locking up open standards, even without any legal obligation to do so? This prospect is looking increasingly plausible as Microsoft moves closer to supporting the Copy Generation Management System for Analog (CGMS-A). CGMS-A is an industry standard for marking video programming with metadata about the copyright holder's or broadcaster's preferences for whether and how a work may be recorded. The DMCA expressly provides that devices do not have to act upon or enforce such preferences; complying with CGMS-A metadata is a favor to Hollywood, not the law.

(Read on for more after the jump.)

[Read the entire post]

Senator Clinton, Burned by "Hot Coffee," Proposes Grand Theft of Free Speech

Posted by Derek Slater

Recently, Rockstar Games got into hot water after people who play its already-controversial game, "Grand Theft Auto: San Andreas," discovered how to unlock a sexually graphic mini-game known as "Hot Coffee." Rockstar's parent, Take Two Interactive, has admitted to creating the hidden portion, and, under pressure, decided to pull the game off store shelves in anticipation of a "caffeine-free" version to be released this fall. In the meantime, Senator Hillary Clinton has vowed to introduce legislation that would fine retailers for selling minors video games that the industry rates as "mature" or "adults only."

Of course, the Senator's proposed video game censorship bill would violate the First Amendment. While courts have found that some sexual content is "harmful to minors," and that distribution of such material to children can be regulated, courts have also repeatedly held that violent speech, be it in video games or other media, is fully protected by the First Amendment. Courts have also repeatedly found that government enforcement of private ratings schemes (like the MPAA's ratings for films) is plainly unconstitutional. Video games are no different.

Senator Clinton, being a lawyer herself, knows that her proposed bill would immediately be challenged and struck down if ever signed into law -- just like every similar bill that has been passed by city councils and state legislatures, only to be followed by a video game industry lawsuit the next day. In fact, the industry filed its latest sure-to-win First Amendment challenge just this week to fight an Illinois law regulating violent video games.

Unfortunately, it's we the taxpayers who have to bear the cost of defending these politically motivated, certainly unconstitutional laws in court. And as long as politicians can make hay of the supposed "harm" caused to our younger citizens by violent and sexually explicit speech, they will be an annoyingly persistent part of the political landscape. But it's still worth writing your city council members and state and federal legislators. If your representatives have proposed a law like this, tell them that you're tired of time-wasting games -- the political kind.

[Permalink]

EFF15: The Moment I "Clicked-Through" to the Copyfight

Posted by Jason Schultz

In 1997, I entered my first year of law school at UC Berkeley. At the time, I had a pretty open mind as to what I wanted to do with my life as a lawyer. I had done some work on gender issues in the past and thought I might continue in that vein, working on social justice in the courtroom or policy arenas. But then I met Pam Samuelson.

Pam teaches at Berkeley, but I met her outside the classroom as part of the team organizing a conference on software licensing law. When I showed up to the meeting, I was skeptical that I would be interested; after all, who cares what the fine print says in those tedious multi-page "I agree" windows? To me, it was all just boring corporate contract law BS. Yet within an hour all of that changed.

Pam showed us that hidden beneath these banal, technical, obscure provisions was a raging battle over principles of fairness, free speech, consumer protection, and free culture in the information age.

She showed us that there were key public interest questions at stake: Could a company censor product reviews of its software? Could I be forced to consent to a search and seizure of my data files? Would a single company be able to lock out all competition in a market by undermining fair use and reverse engineering of its products? These were just a few of the policy questions at the heart of the symposium we were organizing. From there, I was hooked.

(Read more after the the jump.)

[Read the entire post]

TSA Continues Secure Flight Deception

Posted by Derek Slater

Last week, the Government Accountability Office (GAO) reaffirmed [PDF] in a letter to Congress that the Transportation Security Administration (TSA) violated the Privacy Act, lying to the public about collecting and using private data in testing Secure Flight. The letter also reveals that the TSA collected over 100 million records from commercial data providers.

But TSA's deception and privacy-invasive practices don't stop there. According to an AP story, the TSA plans to test whether commercial data could help find terrorist "sleeper cells." "We are trying to use commercial data to verify the identities of people who fly because we are not going to rely on the watch list," said Justin Oberman, who's in charge of Secure Flight. "If we just rise and fall on the watch list, it's not adequate."

That blatantly contradicts what the TSA previously said about Secure Flight. While its predecessor, CAPPS II, would have mined commercial data to predict who might be a terrorist, Secure Flight was supposed to use the data only to match names to existing watch lists (see the March 2005 GAO report; PDF).

[Permalink]

EFF15: Keep Blogging for Freedom; Seven More Days to Enter Contest

Posted by Derek Slater

Blog-a-thon posts are surging -- if you haven't been following the inspiring tales through Technorati and Pubsub, you're missing out! To keep the momentum going and to give you another chance to enter your own story in EFF's contest, we've extended the Blog-a-thon submission deadline to August 2nd.

Here are some recent highlights:

HangLeft: "It became obvious that Intel's master database of CPU serial numbers would be an extreme invasion of privacy intended to empower their marketing department, the public's right to privacy be damned. I was furious at the idea."

Liza: "We don't usually lose privacy protections in great dramatic moments. Instead, they get slowly smaller and less effective. When privacy protections are gone, instead of feeling exposed and at risk, we more often simply accept that 'this is how life is.'"

Nightsoil: "I realized that a failed scientist and musician just might make a good IP attorney. It is my hope that with my education I can somehow effect change that will help preserve what is beautiful and true by ensuring more artists and scientists can communicate new expression and ideas in a way that is beneficial to us all."

Joe Hall: "What incensed me more than the fact that Diebold misused intellectual property law was what I learned in the process about the machinery that is increasingly casting and counting our votes."

Yovko, translating from Bulgarian: "Perhaps it seems it is too far away from here, probably it is still not too scary, but we should never forget what happened with the software patents."

[Permalink]

Protected Media Path, Component Revocation, Windows Driver Lockdown

Posted by Derek Slater

Staff Technologist Seth Schoen, EFF's resident expert on trusted computing, recently attended this year's Windows Hardware Engineering Conference (WinHEC). This is the third of a four-part series in which Schoen provides detailed updates on the status of Microsoft's security and lockware strategies for Windows. The outcome of these strategies will affect to what degree people using the platform and "trusted" PCs can maintain a desirable level of control over their own computers. The first two posts can be found here and here.

*****

In the near future, when you try to install software to time-shift your favorite Real Audio webcast, your PC might disable all media player applications. Until you remove the software, your PC will remain crippled. Or perhaps you want to watch a downloaded movie on a wide-screen TV, but your PC might turn off its video card's analog output.

Welcome to the world of Windows Longhorn (now known as Vista) and the Protected Media Path, where Microsoft, copyright holders, and DRM licensors may grant or revoke permission to use your own computer and digital media.

(Read on after the jump.)

[Read the entire post]