Press Releases
FBI Withdraws Unconstitutional National Security Letter After ACLU and EFF Challenge
Gag Order Lifted on Internet Archive, Allowing Founder to Speak Out for First Time
San Francisco - The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive's founder to speak out for the first time about his battle against the record demand.
"The free flow of information is at the heart of every library's work. That's why Congress passed a law limiting the FBI's power to issue NSLs to America's libraries," said Brewster Kahle, founder and Digital Librarian of the Internet Archive. "While it's never easy standing up to the government -- particularly when I was barred from discussing it with anyone -- I knew I had to challenge something that was clearly wrong. I'm grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands."
The NSL was served on the Archive -- a digital library recognized by the state of California -- and its attorneys in November of 2007. The letter asked for personal information about one of the Archive's users, including the individual's name, address, and any electronic communication transactional records pertaining to the user. Kahle, who is also a member of EFF's Board of Directors, decided to fight the NSL because it exceeded the FBI's limited authority to issue such demands to libraries.
The Archive responded to the letter by handing over only publicly available documents and simultaneously filing a lawsuit challenging the letter. This lawsuit is the first known challenge to an NSL served on a library since Congress amended the national security letter provision in 2006 to limit the FBI's power to demand records from libraries.
The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive's Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI's misuse of NSLs.
"This is a great victory for the Archive and also the Constitution," said Melissa Goodman, staff attorney with the ACLU. "It appears that every time a national security letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records. In the absence of much needed judicial oversight – and with recipients silenced and the public in the dark – there is nothing to stop the FBI from abusing its NSL power."
"A miscarriage of justice was prevented here because the Archive decided to fight the unlawful demand for information and unconstitutional gag," said EFF Staff Attorney Marcia Hofmann. "The big question is, how many other improper NSLs have been issued by the FBI and never challenged?"
NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or "gagged," from disclosing that they have received the letters. The ACLU has challenged this Patriot Act statute in federal court in two other cases where the judges found the gags unconstitutional: one involving an Internet Service Provider (ISP); the second a group of librarians. In the ISP case, the district court invalidated the entire NSL statute. The U.S. Court of Appeals for the Second Circuit is expected to hear oral arguments in the government's appeal of that case next month.
Since the Patriot Act was passed in 2001, relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase, to nearly 200,000 between 2003 and 2006. EFF's investigations have uncovered multiple NSL misuses, including an improper NSL issued to North Carolina State University.
Last year Representative Jerrold Nadler (D-NY) introduced H.R. 3189, the "National Security Letters Reform Act of 2007." Senator Russell Feingold (D-WI) introduced a Senate bill of the same name (S. 2088). Both bills are aimed at narrowing the statute by enacting limits on when and how NSLs can be used and bringing the gag order provision in line with the Constitution.
In addition to Goodman and Hofmann, attorneys on the case are Jameel Jaffer and Danielle Tully of the ACLU National Security Project, Ann Brick of the ACLU of Northern California, and Kurt Opsahl of EFF.
For the newly unsealed documents (still partially redacted):
http://www.eff.org/cases/archive-v-mukasey?docs
For more information about this case:
http://www.eff.org/cases/archive-v-mukasey
For more information on NSLs:
http://www.eff.org/issues/foia/07656JDB
Contacts:
For Brewster Kahle:
Paul Hickman
Internet Archive
info@archive.org
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
James Freedland or Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org
EFF and Sheppard Mullin Defend Wikipedia in Defamation Case
Federal Law Protects Popular User-Created Encyclopedia From Liability
San Francisco - The Electronic Frontier Foundation (EFF) and the law firm of Sheppard Mullin Richter & Hampton Thursday filed a motion to dismiss a lawsuit brought against the operator of the popular online encyclopedia Wikipedia, arguing that federal law immunizes it against suits over statements made by its users.
Literary agent Barbara Bauer filed a complaint in New Jersey Superior Court in January against Wikipedia posters as well as the site itself, claiming in part that the Wikimedia Foundation was liable for statements identifying her as one the "dumbest of the twenty worst" agents and that she had "no documented sales at all." In court papers filed Thursday, Wikimedia argues that under Section 230 of the Communications Decency Act, operators of "interactive computer services" such as Wikipedia cannot be held liable for users' comments. In addition, Wikimedia argues that the statements are protected speech under the First Amendment and New Jersey law.
The ability to utilize the collaborative input of its users without fear of costly lawsuits is essential to Wikipedia's ongoing success, said Wikimedia Foundation General Counsel Mike Godwin.
"We provide a platform through Wikipedia for smart citizens to give their knowledge back to a larger culture," Godwin said. "Our ability to offer citizens that platform is what's at stake in this case."
Since it was signed into law over a decade ago, courts across the country have consistently applied the protections of Section 230 broadly, fulfilling Congress' intent "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation."
"Congress passed Section 230 of the Communications Decency Act in order to protect websites' operators like Wikipedia from suits like this one," said James Chadwick of Sheppard Mullin. "It's simple but it's fundamental: Congress has decided that Internet censorship isn't the answer, so websites aren't liable for statements posted by their users."
Section 230's blanket protection of sites like Wikipedia does not mean that alleged defamation on the Internet cannot be challenged in court. Instead, the law requires that litigants direct their efforts at the speakers themselves and not the forums where statements were made.
"Wikipedia continues to be a tremendous resource for people around the globe," added EFF Senior Staff Attorney Matt Zimmerman. "Without strong liability protection, it would be difficult for Wikipedia to continue to provide a platform for user-created encyclopedia content."
For the full motion to dismiss: http://www.eff.org/files/filenode/wikimedia/motiontoquashmemo-wikimedia....
Contacts:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Mike Godwin
General Counsel
Wikimedia Foundation
mgodwin@wikimedia.org
James Chadwick
Partner
Sheppard Mullin Richter & Hampton
jchadwick@sheppardmullin.com
Congress Must Investigate Electronic Searches at U.S. Borders
Broad Coalition Urges Hearings on Intrusive Search and Seizure of Electronic Devices
San Francisco - The Electronic Frontier Foundation (EFF) and a broad coalition, including civil rights groups, professional associations and technologists, called on Congress today to hold oversight hearings on the Department of Homeland Security's search and seizure of electronic devices at American borders.
The press has widely reported disturbing stories about U.S. citizens subject to intrusive searches of their laptops and cell phones. But a recent court decision found that customs officials can search travelers' computers at the border without suspicion or cause. In a letter sent to the House and Senate Homeland Security and Judiciary committees today, the coalition urges lawmakers to consider passing legislation to prevent abusive search practices by border agents and to protect all Americans from suspicionless digital border inspections.
"Our computers, cell phones, and other electronic devices hold a vast amount of personal information like financial data, health histories, and personal emails and letters," said EFF Staff Attorney Marcia Hofmann. "In a free country, the government cannot have unlimited power to read, seize, and store this information without any oversight."
So far, the Department of Homeland Security has refused to release its policies and procedures for conducting these intrusive searches. EFF and the Asian Law Caucus have filed suit against the Department of Homeland Security to obtain the information through the Freedom of Information Act.
"Your privacy could be at risk even if you don't travel yourself. Your financial institution, your insurer, and other enterprises hold extensive personal data about you and your family," said EFF Senior Staff Attorney Lee Tien. "If agents of those groups travel internationally, your information could be exposed to officials at the border or potentially copied and stored in government databases. Americans should know how and why electronic data is seized and kept by the government, and who is able to access it at the border and in the years afterwards."
In addition to EFF, the coalition signing today's letter includes more than 40 organizations and individuals, including the Association for Corporate Travel Executives, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Rutherford Institute, and prominent technologists such as Bruce Schneier and Whitfield Diffie.
For the full letter to Congress:
http://www.eff.org/press/archives/2008/05/01/border-search-open-letter
For more on EFF's suit on border searches:
http://www.eff.org/cases/foia-litigation-border-searches
Contacts:
Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org
Betrayed MSN Music Customers Deserve More from Microsoft
EFF Outlines Five Steps to Redress DRM Debacle
San Francisco - The Electronic Frontier Foundation (EFF) is urging Microsoft Corporation to fix the problems it will cause when it shuts down the MSN Music validation servers, making it impossible for customers to transfer their music files to new computers or even upgrade their operating system.
In an open letter sent to Microsoft Chief Executive Officer Steve Ballmer today, EFF outlines five steps Microsoft must take to make things right for MSN Music customers -- including a issuing a public apology, providing refunds or replacement music files, and launching a substantial publicity campaign to make sure all customers know their options.
"MSN Music customers trusted Microsoft when it said that this was a safe way to buy music, and that trust has been betrayed," said EFF Staff Attorney Corynne McSherry. "If Microsoft is prepared to treat MSN Music customers like this, is there any reason to suppose that future customers won't get the same treatment?"
MSN Music sold song downloads encumbered with digital rights management (DRM), allowing the music to be played only on approved devices. If you upgraded your computer or operating system, you needed to "reauthorize" your music files with MSN Music's DRM server. But last week, Microsoft announced that it would deactivate those servers because of the complexity of maintaining the technology -- meaning that customers face losing the ability to play their purchased music if they get a new computer or if the hard drive crashes on the old one. Microsoft's only suggestion for customers so far is to export all purchases onto a CD and then recopy it back onto new computers.
"Microsoft is asking its customers to spend more time, labor, and money to make degraded copies of music that was purchased in good faith," said EFF Executive Director Shari Steele. "This outcome was easily foreseeable from the moment Microsoft chose to wrap MSN Music files in DRM. Microsoft customers should not have to pay for Microsoft's bad business decisions."
EFF's letter also calls on Microsoft to eliminate DRM from its Zune music service now -- or at least to publicly commit to compensating future customers for the inevitable future DRM debacles.
"With MSN Music, Microsoft has admitted just how expensive, clumsy, and unfair DRM is. It's time for Microsoft to reject this sloppy technology, and for customers to demand something better," McSherry said.
For the full open letter:
http://www.eff.org/press/archives/2008/04/28/microsoft-open-letter
Contact:
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
EFF Report: FBI Slowed Terror Investigation with Improper NSL Request
Improper NSL Issued Upon the 'Advice and Direction of FBIHQ'
San Francisco - The Electronic Frontier Foundation (EFF) has found that the Federal Bureau of Investigation (FBI), which claims that National Security Letters (NSLs) take too long and that it needs the authority to conduct surveillance without judicial oversight, delayed its own investigation of a student suspected of links to terrorism by employing an improper NSL to seek information on the suspect, at the direction of FBI Headquarters. The FBI failed to report the misuse for almost two years.
EFF's report comes as the House Judiciary Committee prepares for a Tuesday hearing on the misuse of NSLs. The Senate Judiciary Committee will hold another hearing on Wednesday.
"This report raises important questions about the FBI's use of these very powerful investigative tools," said EFF Senior Staff Attorney Kurt Opsahl. "Congress should determine why FBI headquarters insisted on an improper NSL instead of using the appropriate tools, and why the FBI failed to report the misuse for almost two years."
In the report, EFF used documents obtained through a Freedom of Information Act (FOIA) request coupled with public information to detail the bizarre turns in the FBI's investigation of a former North Carolina State University student. Over the span of three days in July of 2005, FBI documents show that the bureau first obtained the educational records of the suspect with a grand jury subpoena. However, at the direction of FBI headquarters, agents returned the records and then requested them again through an improper NSL.
As expanded by the PATRIOT Act, the FBI can use NSLs to get private records about anyone's domestic phone calls, e-mails and financial transactions without any court approval -- as long as it claims the information could be relevant to a terrorism or espionage investigation. However, NSL authority does not allow the government to seek educational records, and the university refused the request. The FBI finally obtained the documents again through a second grand jury subpoena. Later in July of 2005, FBI Director Robert Mueller used the delay in gathering the records as an example of why the FBI needed administrative subpoena power instead of NSLs so investigations could move faster.
"The FBI consistently asks for more power and less outside supervision," said Opsahl. "Yet here the NSL power was misused at the direction of FBI headquarters, and only after review by FBI lawyers. Oversight and legislative reforms are necessary to ensure that these powerful tools are not abused."
Report on the Improper Use of an NSL to NC State University:
http://www.eff.org/issues/foia/report-nsl-ncstate
Key FBI documents:
http://www.eff.org/files/filenode/07656JDB/charlotte.pdf
For more on National Security Letters:
http://www.eff.org/issues/foia/07656JDB
Contact:
Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
State Secrets Claim Should Not Bury Important Surveillance Lawsuit
EFF Argues Against Dismissal of Al-Haramain v. Bush
San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge Monday to allow an important government surveillance lawsuit to have its day in court, despite the government's attempt to bury the case using the state secrets privilege.
The case is Al-Haramain Islamic Foundation v. Bush, which alleges that federal agents illegally wiretapped calls between the charity and its lawyers. The government has asked U.S. District Court Judge Vaughn Walker to dismiss the case, contending that the litigation jeopardizes state secrets. But in an amicus brief filed Monday, EFF argues that the Foreign Intelligence Surveillance Act (FISA) was written to allow cases like this one to proceed with appropriate security precautions.
"Federal surveillance law already provides clear procedures that allow cases like Al-Haramain v. Bush to proceed fairly and securely, and those procedures trump the Administration's claims of blanket secrecy," said EFF Senior Staff Attorney Kurt Opsahl. "By trying to use the state secrets privilege as a shield against any litigation over the legality of its warrantless wiretapping, the administration is essentially telling the other branches 'just trust us.' But when Congress passed FISA, it entrusted judges with the responsibility of deciding the legality of the executive branch's surveillance operations."
This is the government's second attempt to dismiss the Al-Haramain case. The first motion to dismiss reached the 9th U.S. Circuit Court of Appeals, which returned the case to Judge Walker's court to consider the FISA issue.
Judge Walker is also the presiding judge in Hepting v. AT&T -- EFF's class-action lawsuit accusing the telecommunications company of violating customers' rights by illegally assisting the National Security Agency in widespread domestic surveillance.
For the full amicus brief:
http://www.eff.org/files/filenode/att/alharamainamicus1806.pdf
For more on Al-Haramain v. Bush:
http://www.eff.org/cases/al-haramain
Contact:
Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Courtroom Showdown for eBay Seller Over Promo CD Sales
EFF Argues That Labels Don't Trump Right to Resell
Los Angeles - The Electronic Frontier Foundation (EFF) and San Francisco law firm Keker & Van Nest filed briefs in federal court Monday on behalf of eBay seller Troy Augusto, defending his right to resell promotional CDs ("promo" CDs) that he buys from secondhand stores in the Los Angeles area.
Augusto, who does business as "Roast Beast Music" on eBay, was sued in May 2007 by Universal Music Group (UMG), the largest record company in the world, for 26 eBay auction listings involving UMG promo CDs. At issue is whether the "promotional use only, not for resale" labels on these CDs can trump a consumer's right to resell copyrighted materials that they own, guaranteed by copyright law's "first sale" doctrine.
For decades, major labels have distributed promo CDs for free to tastemakers and music industry insiders in an effort to create buzz for upcoming releases. These promo CDs often make their way into secondhand stores, where Augusto purchases them for resale on eBay. UMG stamps its promo CDs with labels declaring that the CDs may not be resold and remain the property of UMG. The "first sale" doctrine in copyright law, however, makes it clear that once the copyright owner sells or gives away a CD, DVD, or book, the recipient is entitled to resell it without needing further permission. The summary judgment brief filed Monday argues that UMG gives up ownership of these promo CDs when it mails them unsolicited to thousands of people without any intention of their return. Accordingly, the first sale doctrine permits purchasers to resell these CDs.
"If UMG is able to stop resale of CDs just by putting 'not for resale' labels on them, then there is nothing to stop other restrictive labels from appearing on CDs, books, and DVDs," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Record companies are not entitled to strip consumers of their first sale rights simply by putting labels on their products."
A hearing on the motion for summary judgment is expected in early May 2008.
For the full brief filed Monday:
http://www.eff.org/files/filenode/umg_v_augusto/AugustoMSJBrief.pdf
For more on UMG v. Augusto:
http://www.eff.org/cases/umg-v-augusto
Contacts:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
Joseph C. Gratz
Attorney
Keker & Van Nest, LLP
jgratz@kvn.com
EFF Wins Another Speedy Release of Telecom Lobbying Records
Judge Orders Government to Provide Documents in 17 Days
San Francisco - The Electronic Frontier Foundation (EFF) won another battle against the government Friday over the release of information about a campaign to change federal surveillance law.
A federal judge ordered the Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI) to provide to EFF by April 21, 2008, records about telecom industry lobbying of their offices.
Congress is currently considering granting immunity to telecommunications companies that participated in unlawful electronic surveillance on millions of ordinary Americans as part of changes to the Foreign Intelligence Surveillance Act (FISA). Officials at the DOJ and ODNI have been vocal supporters of the immunity proposal. Using the Freedom of Information Act (FOIA), EFF asked the DOJ and ODNI for any documents reflecting telecom carriers' efforts to avoid legal responsibility for their role in the government's surveillance operations, but the agencies failed to comply with EFF's requests.
"We went to court over the release of these documents because they could play a critical role in the national debate over telecom immunity. Denying Americans access to this information is not only unconscionable, but also illegal," said EFF Staff Attorney Marcia Hofmann. "We're pleased the judge recognized that time is of the essence here and ordered these agencies to follow the law."
In November, another federal judge ordered ODNI to comply with a similar EFF request. Documents released as a result of that case detailed high-level battles over changes to FISA, featuring key members of Congress and Director of National Intelligence Mike McConnell.
EFF also represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance. There are nearly 40 legal cases that have arisen from the warrantless surveillance currently pending in the Northern District of California courts.
For the judge's full order:
http://www.eff.org/files/filenode/foia_C0705278/040408_order.pdf
For more on EFF v. ODNI and DOJ:
http://www.eff.org/issues/foia/cases/C-07-05278
For more on Hepting v. AT&T:
http://www.eff.org/nsa
Contact:
Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
EFF and Government Face Off Over Lobbying Disclosure Delays in Friday Hearing
Agencies Fail to Release Records on Telecom Lobbying Activity
San Francisco - On Friday, April 4, at 9 a.m., the Electronic Frontier Foundation (EFF) will urge a federal judge to speed the government's release of information about a campaign to change federal surveillance law to benefit telecommunications companies.
Congress is currently considering granting immunity to telecoms that participated in unlawful electronic surveillance on millions of ordinary Americans. But the Office of the Director of National Intelligence (ODNI) and the Department of Justice (DOJ) have failed to comply with a Freedom of Information Act (FOIA) request for documents reflecting telecom carriers' efforts to avoid legal responsibility for their role in the government's surveillance operations.
U.S. District Judge Jeffrey S. White has already issued a tentative ruling granting EFF's request for a preliminary injunction against the government. In November, another federal judge ordered ODNI to comply with a similar EFF request.
EFF also represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance.
WHAT:
EFF v. ODNI and DOJ
WHEN:
9 a.m.
Friday, April 4
WHERE:
U.S. District Court, Northern District of California
Courtroom 2, 17th Floor
450 Golden Gate Ave.
San Francisco CA
For the judge's tentative ruling:
http://www.eff.org/files/filenode/foia_C0705278/033108_tentative_ruling....
For more on EFF v. ODNI and DOJ:
http://www.eff.org/issues/foia/cases/C-07-05278
For more on Hepting v. AT&T:
http://www.eff.org/nsa
Contacts:
Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
EFF Urges Court to Rule National Security Letters Unconstitutional
Secrecy Surrounding Demands for Private Records Enables Widespread Misuse
San Francisco - The Electronic Frontier Foundation (EFF) along with the National Security Archive urged a federal appeals court Wednesday to strike down the National Security Letter (NSL) provision of the Electronic Communications Privacy Act.
The federal surveillance law, as expanded by the PATRIOT Act, allows the FBI to use NSLs to get private records about people's communications without any court approval, as long as it claims the information could be relevant to a terrorism or espionage investigation. The FBI also has broad discretion to place recipients of NSLs under indefinite gag orders, barring them from saying anything about the demands.
A federal judge has already found that the NSL statute is unconstitutional, but the government appealed the ruling. In an amicus brief filed Wednesday, EFF and the National Security Archive argue that the excessive secrecy surrounding the use of NSLs undermines government accountability and enables widespread misuse of authority.
"The Justice Department's internal watchdog has documented the FBI's systematic, Bureau-wide misuse of NSLs," said EFF Staff Attorney Marcia Hofmann. "NSL gag orders aren't just an unconstitutional restriction on free speech -- they also allow problems like these to fester and grow."
This week is national Sunshine Week, a non-partisan initiative to celebrate the principles of open government. Both EFF and the National Security Archive work to uncover information on government matters of public interest, as openness proves to be a check against government abuses.
"The FBI's ability to issue gag orders without meaningful judicial oversight means there is no check on overreaching by the FBI," said National Security Archive Staff Counsel Kristin Adair. "This kind of secrecy does not make us safer. It simply allows the government to cover up abuses and mistakes."
For the full amicus brief: http://www.eff.org/files/filenode/doe_v_ashcroft/doevmukaseyamicus031908...
For more on Sunshine Week:
http://www.eff.org/sunshine
For more on EFF's work on NSL misuse: http://www.eff.org/issues/foia/07656JDB
Contacts:
Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Kristin Adair
Staff Attorney
National Security Archive
