Telecoms Want Immunity for Lawbreaking: A Roundup of Coverage from Around the Internet

Posted by Hugh D'Andrade

Right now, high-powered lobbyists for the giant telecom companies are descending on Capitol Hill to lobby Congress. Their aim: to secure immunity for their clients, insulating them from liability for breaking the law in connection with the NSA?s illegal warrantless wiretapping program. Clearly, EFF?s case against AT&T is in their crosshairs.

Considering the urgency of the issue, mainstream media coverage has been surprisingly spotty and incomplete. But there are some excellent updates and analysis from bloggers and news sources that have been doggedly covering the facts as they come in. Here are a few of our picks:

The Nation:

Granting amnesty to telecoms would signal Congressional acquiescence in an illegal course of conduct. It would send a loud message to other businesses and individuals: Don't worry if the executive branch comes to you secretly and demands that you violate the law or impinge on basic liberties. We'll bail you out. And it would stymie lawsuits that not only serve accountability, but also provide paths to illuminate what harm has been done to our rights.

In seeking amnesty for the telecoms, the White House is striking the same chord it hit when President Bush pardoned Lewis "Scooter" Libby: Crimes may have been committed, but so long as they are done in the name of the White House, there will be few consequences. Indeed, Michael McConnell's (flawed) argument about bankrupting the telecoms harmonizes with President Bush's claim that Libby's sentence was too harsh. Companies and individuals that break the law without the benefit of the Executive's blessing pay the consequences of their unlawful actions every day.

Glenn Greenwald at Salon:

It is hard to overstate how much of a priority FISA immunity is for the Bush White House, and for obvious reasons. Ironically, they were actually proposing the same sweeping retroactive immunity language back in September of 2006 when the Republicans controlled both houses of Congress, but they could not get the Congress to pass FISA legislation. With the Democrats in control of Congress, and Democratic Beltway influence-peddlers like Gorelick working with them, their chances of obtaining such legislation are now plainly enhanced, and according to both Risen and Isikoff/Hosenball, they are likely to obtain some form of retroactive immunity now that Democrats control Congress. There are reasons -- good reasons -- why the current Congress is more popular among Republicans than Democrats.

Art Levine at the Huffington Post:

A grim sign is the way the ACLU, normally an ally of progressive Democrats, is being kept in the dark by the Democratic leadership about their plans to "compromise" with the administration, and copies of proposed bills are being kept hidden, at this point, from progressive advocacy groups -- so we will all have too little time to react and demand constitutional protection.

Matt Stoller, Open Left:

I just got off the phone with Caroline Fredrickson from the ACLU, and the news is about what you'd expect if you have witnessed Democratic House behavior over the past six months. The bottom line is that Nancy Pelosi and Harry Reid are disorganized and giving no signals to members on the FISA wiretapping expansion and retroactive immunity to telecom companies, which is going to result in horrific legislation. In the Senate, Jay Rockefeller is once again inviting Mike McConnell into closed hearings on how to fix the FISA law, and the markup is next week. There are no drafts of legislation around, which is a bad sign. The Senate Judiciary Committee is hamstrung by Dianne Feinstein, who prevents a majority, and by the instincts of Democrat leaders who, in a conflicts between Judiciary and Intelligence, will go with Intelligence because of a perceived fear of national security weakness.

And don't miss the ACLU FISA Fact sheet:

Myth: The so-called ?Protect America Act? permits the collection of foreign-to-foreign calls and doesn?t implicate Americans.

Reality: No. What McConnell isn?t saying, is that the new law also allows the government to collect foreign to domestic calls and, quite possibly, domestic to domestic calls. Any communications that are ?directed at? or even ?concerning? someone overseas may be collected, even when one party to the communication is an American. That means that Americans will have our calls and emails swept up in this newly legalized dragnet.

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Judge Voids Election Because of E-Voting Snafus

Posted by Rebecca Jeschke

Good news from California's Alameda County -- a judge has voided election results after the county botched its response to a contested race conducted on Diebold electronic voting machines. The judge ordered that the disputed Measure R -- an initiative addressing the operation of medical marijuana dispensaries -- go back on next year's ballot.

Measure R lost by fewer than 200 votes in the 2004 election, and Americans for Safe Access and voters in the city of Berkeley brought a legal challenge seeking a recount. But while the lawsuit was ongoing, election officials returned the voting machines to supplier Diebold Election Systems, and 96% of the detailed audit information from the election was destroyed. EFF helped analyze the remaining data, but as the judge recognized, it was impossible to tell if the tallies reported on election night were correct.

This decision was expected, but it's heartening that Superior Court Judge Winifred Smith saw the ramifications of the county's behavior and ordered the appropriate remedy. If there is no way to examine data, audit logs, and chain-of-custody records, there is no way to do an accurate recount. This is only the second time in Californian history that a court has ordered than an election be rerun. The message is clear: using electronic voting machines and keeping sloppy records is not an acceptable way to run an election.

The news is good in California, but serious reforms are needed nationwide, including a voter-verified paper trail and mandatory random audits. Contact your representative today and voice your support for H.R. 811, the Voter Confidence and Increased Accessibility Act of 2007.

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Parts of FISA Held Unconstitutional

Posted by Kurt Opsahl

Today, Judge Ann Aiken of the Oregon Federal District Court ruled that two provisions of the Foreign Intelligence Surveillance Act (FISA), "50 U.S.C. ?? 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution."

This case arose over warrantless surveillance of an innocent Oregon attorney who was falsely suspected of involvement with the Madrid train bombing based on a mistaken fingerprint identification. The critical legal issue was that in the Patriot Act, Congress amended FISA to change the language from requiring "the purpose" of the search or surveillance be to obtain foreign intelligence information to only "a significant purpose" of the search or surveillance. As EFF has previously explained in a case before the Foreign Intelligence Surveillance Court of Review, a "long line of court of appeals decisions, before and after FISA, has held that surveillance may be conducted without a traditional warrant and probable cause only when foreign intelligence collection is the "primary purpose" of the surveillance," not merely a "significant purpose."

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Court defends honest discussion of proposed trademark in <i>Freecycle v. Oey</i>

Posted by Richard Esguerra

EFF welcomes a victory for online free speech in Freecycle v. Oey, a case from the Ninth Circuit Court of Appeals upholding the right to engage in open discussion about words companies are trying to trademark, without the fear of being sued by the companies under trademark law. EFF signed onto the amicus brief written by Stanford Law Professor Mark Lemley arguing that such discussions were not trademark violations.

The Freecycle Network Inc. (TFN) operates freecycle.org, a hub site for localized groups of people seeking a quick and easy way to give and receive stuff for free. TFN filed a federal trademark application for the term "freecycle." Tim Oey, once involved with TFN, took to the Internet to urge people to oppose TFN's effort to trademark the term, arguing that freecycling should be a grassroots movement. In emails to other TFN moderators and posts to message boards, he argued that the word "freecycle" should remain generic, free for anyone to use as a way to refer to the practice of giving away goods online.

TFN sued to squelch Oey's speech and moved for a court injunction prohibiting him from expressing his opinions. TFN argued that he had infringed and disparaged their trademark and managed to convince a district court judge in Arizona to grant the injunction. On appeal, however, the Ninth Circuit ruled that Oey's honest opinion about Freecycle's trademark rights could not be stamped out by a claim of trademark infringement under the Lanham Act. First, the decision correctly notes that Oey did not make any commercial use of the alleged "freecycle" mark in his emails and Internet postings. Second, it noted that there was no evidence that his activities were likely to confuse consumers or otherwise mislead the public. And third, and perhaps most importantly, the Court wrote:

Nor does the [Lanham Act] prevent an individual from expressing an opinion that a mark should be considered generic or from encouraging others to use the mark in its generic sense... TFN?s mere disagreement with Oey?s opinion and frustration with his activities cannot render Oey liable under the Lanham Act.

Ultimately, this decision is great news for consumers and users engaged in honest Internet discussions and stands as a sound warning to trademark owners not to misuse the law in attempts to squelch speech about their purported marks.

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"Secure Flight" Returns, Lacking Privacy Protections

Posted by Danny O'Brien

I'm currently tapping into my laptop a few feet away from Michael Chertoff, Secretary of the US Department of Homeland Security. He is giving the keynote at Terra Incognita: the annual conference of Data Protection and Privacy Commissioners, here in Montreal.

His audience has him on the defensive. In the room are the European data protection registrars, the government officials who protested strongly against his department's recent agreement with the EU, which hands over their citizens' passenger name records (PNRs) to the United States government with little oversight.

To protect himself from their threatening demeanours, Chertoff has some fine phrases. He spoke on how the DHS "defends all of [the United States'] values, including privacy," and how he personally seeks to ensure his department "rigorously adheres to the laws pertaining to privacy." And he noted that his department has released large number of privacy-related notes for public examination.

On Monday, EFF filed our comments on two of those notes, on the Transportation Security Administration (TSA)'s intent to exempt key data collection from the protections of the Privacy Act in its Secure Flight program.

Secure Flight is the system that the TSA plans to roll out in 2008 for all air flights. It will allow the DHS to collect the passenger records you are obliged to hand over to airlines when you travel, and then connect that personal data with other government databases, within the DHS and elsewhere.

Secure Flight has had a long and ignoble history, with frequent protests from both Congress and privacy groups, leading to its postponement in 2006.

In these new documents, the DHS still seeks to exempt Secure Flight from the
protections of US privacy law. Individuals will be prevented from discovering what data is kept on them, lack the ability to correct that data, and lack the right to judicial review to force data to be corrected if the DHS refuses.

As we say in our filing:

When it enacted the Privacy Act in 1974, Congress sought to restrict the amount of personal information that federal agencies could collect and, significantly, required agencies to be transparent in their information practices. The Privacy Act is intended "to promote accountability, responsibility, legislative oversight, and open government with respect to the use of computer technology in the personal information systems and data banks of the Federal Government[.]" Adherence to these requirements is critical for a system like Secure Flight.

It seems that in his eagerness to "defend our values", Mr Chertoff would do without the privacy protections afforded by our laws. When the database his department intends to build would include everyone, suspect or innocent, who flies within the United States, our privacy requires more protection, not less.

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minilinks for 2007-09-26

Posted by Danny O'Brien

• Censor Yourself (in German)
  Hot on EU Commissioner Franco Frattini's threat to block
  terrorist keywords online, here's some javascript to redact
  your own blog.
  
• Victorious RIAA Defendant Gets Attorneys' Fees
  Tanya Andersen proved herself innocent of copyright
  infringement -- now she's finally getting some cash.
  
• Amazon Launches DRM-free Music Store
  The service will allow download of 2 million tracks without
  copy restrictions.
  
• An Industry Allows Burned DVDs
  Individuals can now burn studio movies and TV shows onto a
  DVD.
  
• Settlement in First GPL-Related Lawsuit
  Monsoon Multimedia admits violating the GNU General Public
  License.
  
• U.S. Register of Copyrights Is a Self-Proclaimed Luddite
  The person responsible for administering Copyright law in
  the US doesn't own a computer?
  
• Is Anything Private Anymore?
  In our digital world, it may be impossible to protect
  personal information.
  
• Legal Mistakes for Web 2.0 Companies
  Rafe Needleman talks about the mistakes Web 2.0 companies
  can avoid at EFF's Web 2.0 Compliance Bootcamp.
  

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ThePudding.com turns your VoIP calls into ad-serving keywords

Posted by Richard Esguerra

The Associated Press reports on the beta website ThePudding.com, which is offering users "free" voice over IP (VoIP) calls, with an invasive catch -- it uses voice-recognition software to serve you ads based on the conversation you're having. In some ways, it can be likened to Google scanning your Gmail messages for keywords used to send you targeted advertisements.

Having a computer sift through your VoIP call is eerie, and unfortunately, the reach of voice-recognition-seeded advertising may not be limited to ThePudding.com's site. ThePudding.com's operator, Pudding Media, seeks to license its speech-recognition capabilities to other service providers, including mobile carriers and Internet telephony services. Imagine a scenario in which your own phone company licenses the Pudding Media platform and uses it to mine your calls for valuable personal information. They could use that information within the conglomerate to sell you other goods and services, or they could turn around and sell that information to the highest bidder -- either way, your "private" conversations become a commodity.

Perhaps the most chilling implication of this "service" is its potential impact on your constitutional right to privacy in your phone calls. Fourth Amendment protections against government eavesdropping rely on your having a "reasonable expectation of privacy" in your calls, something you'll arguably be trading away by using ThePudding.com's VoIP service. The government can and likely will argue -- as it has argued when it comes to your Gmail, in the case of U.S. v. Warshak -- that allowing a company to scan your communications for ad-serving purposes eliminates any Fourth Amendment privacy protections in those communications. Far from being "free", you may be paying for ThePudding.com's service with your constitutional rights.

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NPR Covers RIAA Folly; VCL Plans Entering the Mainstream

Posted by Hugh D'Andrade

For years now, EFF has been arguing against the strongarm tactics of the Recording Industry Association of America (RIAA) and its vain attempt to stop filesharing by dragging music fans into court. At the same time, we?ve also been tirelessly promoting the idea of Voluntary Collective Licensing (VCL) as a solution that could give fans what they want, while ensuring that musicians get paid. Lately, these formerly fringe ideas are garnering broader respect after a few mainstream stories about the RIAA lawsuits and VCL.

Take the excellent series on the RIAA lawsuits from American Public Media's Marketplace (heard on NPR stations around the country). While responsibly airing perspectives from several major players, the show nevertheless presents an unflattering portrait of the music industry?s tactics. RIAA lawsuit victim Tanya Anderson, EFF Senior Staff Attorney Fred Von Lohmann and RIAA CEO Mitch Bainwol are each featured in extensive interviews, and the simple facts of the story are allowed to speak for themselves. The RIAA?s effort to intimidate fans by randomly targeting a few individuals is clearly futile, and unnecessarily punitive.

Have a listen to all three shows: Part 1; Part 2; Part 3.

Meanwhile, VCL schemes are beginning to attract interest from some influential music industry players. The new co-chief executive of Columbia Records, Rick Rubin, has been talking about subscription-based music services. ?You would subscribe to music," Rubin told the New York Times Magazine. "You'd pay, say, $19.95 a month, and the music will come anywhere you'd like. In this new world, there will be a virtual library that will be accessible from your car, from your cellphone, from your computer, from your television. Anywhere.? And Rubin isn?t the only one. Music industry insider and gadfly Bob Lefsetz has recently been talking up VCLs as well.

In addition, Universal Music Group has reportedly been circulating a proposal for a subscription service under the name "TotalMusic." Details are vague, but would likely include an agreement between Universal and ISPs that would require all of the ISP?s subscribers to opt in, in which case subscribers? service rates would increase whether they downloaded Universal?s music or not. An improvement to this plan would be to allow people to opt in on an individual basis ? this would generate immediate cash flow, and demonstrate the public interest in this sort of service.

Clearly, the music industry is awakening to reasonable, immediate solutions that can bring us all more music, at better quality, while generating more money for artists and their labels. The only question is how long the music industry will delay the inevitable.

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Censorship in the Anglosphere: the UK and Australia

Posted by Danny O'Brien

The growing global censorship of the Internet often goes unseen in the
English-speaking Net, because so much of it takes place in other countries,
and in other languages. But that doesn't mean that there aren't contemporary
threats to Internet free speech in the English-speaking world.

In the United Kingdom, two prominent blogs went dark this week after
publishing accusations regarding the Uzbek billionaire, Alisher Usmanov.
Lawyers representing Usmanov contacted the blogs' webhost, Fasthosts, and
after threats to sue under Britain's expansive libel laws, the blogs were
removed. The sites included Tim Ireland's popular "Bloggerheads" site, and
site of Craig Murray, the ex-Ambassador for Uzbekistan. Murray's hosting
provider even intervened to take down individual entries and alter the text of
Murray's blog to avoid further legal action. As Murray charitably noted on the
now deleted site:

... One of the edits to this log my webhost made at Schillings' [Usmanov's
lawyers] behest was to say that my claim was "regarded as false by many
people". I have altered that edit, because there is no justification for such
a claim. I have yet to see evidence of anybody, not one solitary person,
arguing that I am wrong about Usmanov, other than his lawyers. Who are these
"Many people", and why are they peculiarly silent?

I am very sympathetic to my webhost having to change things for Schillings,
but not to the extent of altering things to become defamatory of me!!!

It's a chilling reminder that censorship doesn't just mean that entire sites
can be removed from the Net, or that self-censorship will become rife. It even means that other, commercial third parties - whom you pay for service - might alter the very words credited to you online.

Few subjects of criticism have as enthusiastic lawyers as Usmanov.
But in Australia this week, the government introduced a bill that would let
the Australian government intervene in the Internet speech of all its
citizens, on the flimsiest of pretexts.

The Communications
Legislation Amendment (Crime or Terrorism Related Internet Content) Bill
would, as Electronic Frontiers Australia says, give the Australian police
powers to ban access to Internet content which "they have reasons to
believe":

• encourages, incites, or induces the commission of a Commonwealth offence;
  or
• was published in part to facilitate the commission of such an offence;
  or
• that it is likely to have the effect of facilitating the commission of
  such an offence.

In other words, entire sites can be banned in Australia for the merest
suspicion of potentially assisting a crime. Such a low threshold for
censorship, combined by the repeated calls by Australian politicians of all
stripes for a centralized, federal filtering of the
net, poses a real threat to speech and access to the Net in Australia. It's good to see groups like Electronic Frontiers Australia stand up to it.

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MySpace and Facebook Plan to Use Personal Data for "Targeted Advertising"

Posted by Hugh D'Andrade

Personal data is a hot commodity. All sorts of businesses trade in data concerning what we buy, how much credit we have, where we live, what our interests are. This information is sold to advertisers, who then eagerly use it to more precisely target people that they hope will be interested in their products ? leading to all those annoying catalogs that litter your doorstep, for example, or the junk emails that choke your inbox every day.

Luckily for the advertising industry, modern web users have begun voluntarily providing all their personal details on social networking sites like Facebook and MySpace. Users of these sites happily upload all sorts of personal information about what books and music they like, where they shop, who their friends are, and where they live. While users of these sites may imagine that they control the information on their profile pages, advertisers are salivating at the thought of all that personal data just waiting to be processed, analyzed, and turned into profit.

Recently, both Facebook and MySpace have announced plans to do just that. The president of Fox Interactive Media, which owns MySpace, tells potential clients that ?We have an opportunity to provide advertisers with a completely new paradigm.? The personal data of MySpace users will be used to generate ?targeted advertising? that is tailored to each individual account, using algorithms that assign members to one of 10 main consumer categories.

Not one to be left behind, Facebook has a similar program. They now slip targeted ads into the ?news feed,? along with updates about the user?s friends on Facebook, where they are sure not to miss them.

Google, which has access to some of the most coveted personal data on the Internet ? your search logs ? has recently acquired DoubleClick, a company that uses browser cookies to track what sites Internet users visit and what commercial advertisements they click while browsing. Google?s senior policy counsel finds it all quite innocent: ?Simply put, advertising is information,? he said.

While none of this may be illegal, it does have ominous implications, as Cory Doctorow humorously points out in his recent short story, Scroogled. The personal data we now use to keep in touch with friends will soon help corporations target us more effectively. What?s to stop this wealth of data from creeping into law enforcement activities?

While it may seem odd to object to potential privacy violations of people who voluntarily share their own info, the bottom line is that users need to know what is being done with their information, and should have the opportunity to opt out of marketing schemes if they choose. Last year, when changes to Facebook's interface made it easier for users to track each other's changes, protests were loud and angry, leading to some changes in policy. Let?s hope a similar uproar greets social networking sites? latest decisions to treat their users like products on the open market.

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