Halloween on the Hill

Posted by Danny O'Brien

If you would like to join our jamboree
There's a simple rule that's compulsory
Mortals pay a token fee
Rest in peace; the haunting's free

- The Crypt, Disney's The Haunted Mansion

Halloween is traditionally the time when the undead walk; preposterous monstrosities that no-one could imagine living stumble and moan through the land.

So guess what the entertainment industry decided to dust off for an extra spooky session with the House Judiciary Committee on Thursday?

Why, yes, they are bringing the broadcast flag. And, certainly, there is talk of their henchmen at the RIAA clumsily re-animating their insane digital radio requirements.

But that's not spooky enough for the MPAA. For their party trick this year, they want to take one of the most basic and ubiquitous components in multimedia, and encase it within a pile of legally-enforced, complex, and patented proprietary technology - forever.

Ladies and gentlemen, the MPAA have chosen Halloween week to resurrect their most misconceived monster ever: the Thing from the Analog Hole.

Feel free to flick through this new Halloween document: it's a legislative draft proposed by the MPAA for a hearing of the House Subcommittee on Courts, the Internet, and Intellectual Property, on the topic "Content Protection in the Digital Age: The Broadcast Flag, High-Definition Radio, and the Analog Hole," on November 3rd.

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Attack of the Printing Press!

Posted by Kurt Opsahl

Printing presses are the prized platform of a public lynch mob spouting liberty but spewing lies, libel, and invective. Their potent allies in this pursuit include Ben Franklin and John Hancock.

Take the tea tax. Revenue was coming, providing much needed funding to help with his Majesty's benevolent aims in the colonies.

Then the pamphleteers attacked. A supposed crusading journalist launched a broadsheet long on invective and wobbly on facts, posting articles with his printing press calling your King "deceitful,""unethical,""incredibly stupid," and "a pathological liar" who had misled the colonists. The author claimed to be "Silence Dogood," a middle-aged widow who started a one-woman "watchdog" pamphlet, to expose alleged regal excess.

(Read more after the jump.)

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Free Speech vs. Bad Advice - "Attack on the Blogs" and Fighting Back

Posted by Kurt Opsahl

EFF created the Legal Guide for Bloggers, in order to help bloggers understand their rights and, if necessary, defend their freedom. Forbes' recent cover story, Attack of the Blogs, illustrates the need for bloggers everywhere to be prepared to defend their rights. Attack of the Blogs' fear mongering opener is that blogs "are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective," and it goes on in the same vein.

In a sidebar to the blistering article, entitled Fighting Back, Forbes includes the following dangerous suggestion:

ATTACK THE HOST. Find some copyrighted text that a blogger has lifted from your Web site and threaten to sue his Internet service provider under the Digital Millennium Copyright Act. That may prompt the ISP to shut him down. Or threaten to drag the host into a defamation suit against the blogger. The host isn't liable but may skip the hassle and cut off the blogger's access anyway. Also: Subpoena the host company, demanding the blogger's name or Internet address.

If only Forbes had read the Legal Guide for Bloggers, they would have known that following this advice would be a very bad idea for their readers' pocketbooks. We explain:

(Read more after the jump.)

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"Oh, we secretly track cell phones without probable cause all the time! What's the big deal?"

Posted by Kevin Bankston

As we've reported recently, two bold new legal decisions have exposed how the Justice Department has been getting secret court orders to track people's locations using their cell phones—without probable cause and based on interpretations of the law that the newly vigilant courts are now calling "misleading," "contrived," "unsupported," a "Hail Mary" play, and even "perverse."

Of course, this led us to wonder: how many times has the DOJ tricked judges into signing secret surveillance orders based on a completely bogus legal argument? The DOJ confirmed our worst fears in today's Washington Post, saying that "courts around the country have granted many such orders in the past without requiring probable cause."

Now that all of those judges know just how misled they were, we'll hopefully be seeing a lot more published decisions that expose the Justice Department's overreaching surveillance practices. We've already learned from these latest decisions that they've been tracking cell phones and "wiretapping" credit card accounts using so-called "hotwatch" orders without any legal basis; maybe now we'll find out what else the government has been getting away with.

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Leahy Opposes Expansion of CALEA

Posted by Kurt Opsahl

Senator Patrick Leahy, the chief sponsor of the Communications Assistance for Law Enforcement Act CALEA), had a few strong words for the FCC ruling that would expand the CALEA to broadband ISPs and VoIP providers. In a statement Leahy writes "The expansion of the Communications Assistance for Law Enforcement Act (CALEA) to the Internet is troubling, and it is not what Congress intended." He goes on to warn that "...stretching this law without changing it, and without properly examining the implications of doing that, invites a basketful of potential new problems." Leahy further explains:

Congress recognized the unique architecture of the Internet and explicitly excluded it from the scope of CALEA's surveillance design mandates, and we did that to allow Congress to re-visit the appropriateness of such an extension as the Internet developed. Any extension of CALEA - a law written for the telephone system in 1994 - to the Internet in 2005 would be inconsistent with congressional intent.

EFF, along with many other groups, has already told the FCC that its expansion of CALEA goes beyond the statute's letter and Congressional intent, and has petitioned for a federal appeals court to review the FCC decision. But it's great to see one of the original proponents of the legislation remind the FCC of the legislature's clear intent to keep its hands of the Internet.

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All Writs Redux

Posted by Kurt Opsahl

Previously, we wrote about the DOJ's attempts to justify invasive surveillance with the All Writs Act, a federal law that empowers federal courts to issue any "necessary or appropriate" court order. The government was trying to convince Federal Magistrate Judge Orenstein that he could authorize the government to track someone's location using their cell phone—without a search warrant and despite the lack of any statute allowing such surveillance.

It now looks like Orenstein, who just issued a decision reaffirming his denial of the government's request, saw the DOJ's argument for the snake oil it was:

The government thus asks me to read into the All Writs Act an empowerment of the judiciary to grant the executive branch authority to use investigative techniques either explicitly denied it by the legislative branch, or at a minimum omitted from a far-reaching and detailed statutory scheme that has received the legislature's intensive and repeated consideration. Such a broad reading of the statute invites an exercise of judicial activism that is breathtaking in its scope and fundamentally inconsistent with my understanding of the extent of my authority.

(Read more after the jump.)

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Want to Take a Bite Out of the DMCA? Now's the Time

Posted by Gwen Hinze

As part of the Digital Millennium Copyright Act (DMCA), Congress instructed the U.S. Copyright Office to consider every three years whether we need exemptions to the DMCA's blanket ban on circumventing "technological protection measures" (aka Digital Rights Management or DRM) used to lock up copyrighted works. So if you want to make a legitimate use of a piece of media, but have been turned back by DRM and the DMCA, now is your chance to take your case to the Copyright Office and try to make the world a happier and safer place for the next three years. As two-time-successful-exemption-requester Seth Finkelstein says: "The lawsuit you prevent may be your own."

Read on for more info about the process, pitfalls and deadlines.

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Plan for Internet "Backdoors" Draws Coordinated Attack

Posted by Rebecca Jeschke

The FCC's new tech mandate requiring Internet backdoors exceeds the FCC's authority, is arbitrary, capricious, unsupported by the evidence, and is contrary to law, and EFF and six other groups have teamed up to stop it.

The coalition has petitioned an appeals court to review the FCC ruling that would expand the Communications Assistance to Law Enforcement Act (CALEA) to broadband ISPs and VoIP providers, forcing them to build insecure backdoors into their networks. Law enforcement says it needs the backdoors because, they argue, it's just too hard for them to intercept all the communications that they need. But that kind of easy access will also endanger the privacy of innocent people, stifle innovation, and risk the Internet as a forum for free and open expression.

EFF has already argued against this expansion of CALEA in several rounds of comments to the FCC, and we'll be there every step of the way during the court battle.

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More Google Print

Posted by Fred von Lohmann

Professor Tim Wu has posted a great analysis of the fight between authors and Google Print. Rather than plowing the familiar fair use debate, Tim asks the right question - what will this mean for authors and the public?

Consider what it would mean, by analogy, if map-makers needed the permission of landowners to create maps. As a property owner, your point would be clear: How can you put my property on your map without my permission? Map-makers, we might say, are clearly exploiting property owners, for profit, when they publish an atlas. And as an individual property owner, you might want more control over how your property appears on a map, and whether it appears at all, as well as the right to demand payment. But the law would be stupid to give property owners that right.

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How Far Would You Go For Muni WiFi?

Posted by Rebecca Jeschke

It's hard not to fall in love with the idea of municipal wireless Internet access. No more trudging around with your laptop looking for hot-spots—you could just sit on a park bench, fire up your computer, and jump online. And what an easy way to erase the digital divide. People who were priced out of Internet access suddenly have a way into the world of the Web.

But if cities aren't careful, their blanket of WiFi coverage could turn oppressive. In comments submitted to the city of San Francisco this week, EFF, the ACLU, and EPIC West warned about the huge privacy implications of major muni WiFi projects. Will users be tracked from session to session, creating an archive of their online activity? Will the WiFi service provider try to commercialize the data? Will the data be protected from interception by others?

As corporations parade flashy muni WiFi proposals in front of city officials, we hope that decision-makers can keep these questions and others in mind. You shouldn't have to sacrifice your privacy rights in order to use the Internet.

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