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December 19, 2007

EFF Defends Anonymous Critic in New Jersey Lawsuit

Freehold, NJ - On Friday, December 21, at 10:30 a.m. ET, the Electronic Frontier Foundation (EFF) will urge a Superior Court judge in New Jersey to preserve the free speech rights of an anonymous blogger facing legal threats from local government officials.

The blogger, writing as "daTruthSquad" on a site hosted on Google's Blogspot service, has strongly criticized a controversial malpractice lawsuit filed by the township of Manalapan against its former city attorney. Despite having no evidence to back up its accusation that the blogger is actually the former attorney in the case, the township has subpoenaed Google for "daTruthSquad's" identity, as well as for any emails, blog drafts, and other information Google has about the blogger.

Anonymous communications have an important place in our political and social discourse, and the Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. In Friday's hearing, EFF will ask the judge to block the township's subpoena and allow "daTruthSquad" to continue to write about this or any other issue without being forced to identify him or herself.

WHAT:
Manalapan v. Moskovitz

WHEN:
10:30 a.m., Eastern Time
Friday, December 21

WHERE:
Monmouth County Courthouse
Courtroom 226-S
71 Monument Park
Freehold, NJ

Related Issues:
December 17, 2007

Senator Dodd's Efforts Result in Delay of Telecom Amnesty Push

Washington, D.C. - Senate Majority Leader Harry Reid announced today that due to the contentious nature of proposals to provide amnesty for telecoms that participated in the National Security Agency's (NSA) warrantless wiretapping program, further debate on the surveillance bill in the Senate would be delayed until January 2008. Reid's announcement followed a series of speeches by Senators who spoke in strong opposition to telecom amnesty, led by Senator Christopher Dodd of Connecticut.

Senator Dodd's efforts included numerous citations to the evidence in the Electronic Frontier Foundation's (EFF) case against AT&T from former AT&T technician and whistleblower Mark Klein, as well as to the initial decision by federal Judge Vaughn Walker that allowed the case to proceed.

In a statement delivered on the Senate floor at the end of the day, Senator Reid spoke against proposals to provide retroactive amnesty for telecoms, saying: "I believe that it is more than appropriate to ask the courts to examine the telephone companies actions and to evaluate whether or not they acted properly."

Senator Reid also warned his colleagues in the Senate about the dangerous precedent that could result should the telecoms receive amnesty from Congress: "Providing immunity without ever undertaking such an evaluation would send a dangerous signal that the requirements we enact prospectively may be ignored with impunity."

"We applaud Senator Reid for allowing the full Senate to take the time to carefully consider the dangers of granting amnesty to the phone companies who have blatantly violated their customers' privacy for over six years. Over the holiday break we hope that many Senators will listen to their constituents who want them to stand up for the Fourth Amendment," said EFF Legal Director Cindy Cohn. "But the biggest hero today is Senator Dodd, who recognized the profound Constitutional issues at stake in taking this key issue away from the courts, and refused to let it be rammed through the Senate without a fight. "

EFF represents the plaintiffs in Hepting v. AT&T, one of dozens of class-action suits accusing the telecoms of violating customers' rights by illegally assisting the National Security Agency with this dragnet domestic surveillance of ordinary Americans.

For more on Hepting v. AT&T and telecom immunity:
http://www.eff.org/nsa

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Related Issues:
December 11, 2007

Records Released As Lawmakers Debate Changes to Surveillance Law

San Francisco - The Electronic Frontier Foundation (EFF) has received a second set of records from the Office of the Director of National Intelligence (ODNI) detailing behind-the-scenes briefings for lawmakers working to make substantial changes to the Foreign Intelligence Surveillance Act (FISA).

EFF requested release of the records under the Freedom of Information Act (FOIA) earlier this year, but ODNI dragged its feet in response. Last month, a federal judge ordered ODNI to release all documents by December 10. The first batch of records, made public on November 30, detailed contentious negotiations between Director of National Intelligence Mike McConnell and members of Congress that resulted in the passage of the Protect America Act -- an expansion of spying powers that undermined the Constitution and the privacy of Americans.

The second set of records contains more correspondence between McConnell and members of Congress, as well as heavily redacted versions of classified testimony delivered to the Senate Select Committee on Intelligence, and an FAQ detailing how the National Security Agency performs electronic surveillance. Withheld records include ODNI presentation slides used to brief Congress on foreign intelligence issues, and other classified documents.

"Our democratic system works best when citizens are fully informed about the issues being debated in Congress," said EFF Staff Attorney Marcia Hofmann. "Unfortunately, the Bush Administration is continuing to withhold information that is central to the pending debate on proposed changes to surveillance law."

The Protect America Act expires in February, and lawmakers are working on an extension of the bill -- potentially including more power for the government to spy on Americans as well as possibly granting amnesty for telecommunications companies that participated in the warrantless surveillance. EFF's Freedom of Information Act request also asked for any documentation of lobbying activity from telecoms that are facing lawsuits because of their role in the illegal spying. However, according to ODNI, the agency located a single document on this subject -- classified handwritten notes made by an ODNI employee on a telephone message slip.

EFF 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 domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws.

Part one of the ODNI documents:
http://www.eff.org/files/filenode/foia_C0705278/121007_odni01.pdf

Part two of the ODNI documents:
http://www.eff.org/files/filenode//121007_odni02.pdf

ODNI declaration explaining withholdings:
http://www.eff.org/files/filenode/foia_C0705278/121007_hackett_decl.pdf

For more on EFF v. ODNI:
http://www.eff.org/issues/foia/cases/C-07-05278

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
December 5, 2007

Latest Proposal Undermines Goal of Letting the Courts Rule on 5+ Years of Companies' Illegal Wiretapping Violations

Washington, D.C. - Tomorrow the Senate Judiciary Committee is scheduled to take up a bill introduced by Senator Arlen Specter (R-PA) that would substitute the government for the phone companies in all current litigation. The Electronic Frontier Foundation (EFF), co-lead counsel in the nearly 40 pending lawsuits against the major telephone carriers, strongly believes that Congress need not and should not grant amnesty for providing the National Security Agency (NSA) with the full content of billions of their customers' emails, text messages and Internet-carried phone calls.

"While EFF appreciates the attempt by Senator Specter to craft a compromise to save the litigation, the bill contains serious flaws that undermine the goal of allowing the courts to decide whether the carriers and the president broke the law when they engaged in over five years of warrantless surveillance of millions of ordinary Americans," said EFF Legal Director Cindy Cohn. "Given the gravity and unprecedented complexities of the issues raised by the carriers' demand for amnesty, Congress should not be rushed into action by an arbitrary deadline and should instead take the time to carefully consider Senator Specter's proposal as well as others."

Prior to the Thanksgiving break, Senator Specter had the right idea when he said: "I don't think Congress can stand by, and in the face of what has happened, give carte blanche, a free ticket, grant retroactive immunity to suggest to future administrations that they can ignore separation of powers and they can ignore Congressional oversight and just run roughshod over the entire process without being held accountable. The better practice is to allow judicial proceedings to take their course and let the courts make their own determinations."

"The Judiciary Committee's instincts before Thanksgiving to separate out the substantive changes to FISA -- which are tied to the sunset of the Protect America Act in February, 2008 -- from the question of amnesty were correct," said Cohn. "Before tens of millions of Americans and their legitimate claims are kicked out of court, Congress owes the American people a transparent process -- not a few weeks of pressured consideration and a single public hearing by the Committee charged with protecting the Bill of Rights."

The "Foreign Intelligence Surveillance Substitution Act of 2007," introduced on December 3 by Sen. Specter, addresses one important problem regarding damages if the plaintiffs' case is proven. Regrettably, however, it falls short. Specifically, the new Specter substitution bill:

* Would require the plaintiffs to change their legal claims from those against telecoms to claims that can only be made against the government, paradoxically making the lawsuits more likely to trigger national security concerns even as they slant the playing field sharply in favor of the government

* Could empower the government to kill the litigation by asserting legal privileges that the government alone possesses

* Would dramatically and prejudicially limit the plaintiffs' current rights to discovery and other key procedural rights critical to getting at the facts about the telecoms' ongoing violations of multiple Congressional privacy statutes, including the Foreign Intelligence Surveillance Act (FISA). These statutes specifically require telecoms to say "No" to an overreaching Executive Branch when it demands warrantless and illegal access to customers' private calls and call records.

"Although regrettably we cannot support Sen. Specter's new bill, we applaud his serious efforts and his fundamental approach to this issue," said Cohn. "We couldn't agree more with his bottom line on telecom amnesty and hope that every senator will take this to heart as FISA reform makes its way to the Senate floor this year or next."

For more on the telecom lawsuits:
http://www.eff.org/issues/nsa-spying

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Related Issues:
November 30, 2007

Records Posted on EFF's Website

San Francisco - Today the Electronic Frontier Foundation (EFF) received the first of two batches of records from the Office of the Director of National Intelligence (ODNI) concerning the Administration's attempts this past summer to enact the Protect America Act and eviscerate the Foreign Intelligence Surveillance Act (FISA).

The records reveal new details about the contentious negotiations between Director of National Intelligence Mike McConnell and members of Congress that resulted in the passage of the Protect America Act -- an expansion of spying powers that undermined the Constitution and the privacy of Americans. In one letter, Senate Select Committee on Intelligence Chairman John D. Rockefeller IV claims that McConnell made "assurances" and "agreements" that were not carried out, and says, "I and others involved in these important and intense FISA negotiations are left to question whether the negotiations were carried out in good faith or whether your commitments were overruled by others at the White House or within the Administration." Senator Sheldon Whitehouse also expressed "deeply felt displeasure with the administration's legislative strategy on the recent 'FISA Fix'" and says that the Protect America Act was passed "at a substantial price, one that will be paid in rancor, suspicion and distrust."

"These documents give Americans a unique inside look at high-level discussions about how a controversial -- and critically important -- change to the law occurred," said EFF Staff Attorney Marcia Hofmann. "A Senate vote on more changes to FISA is just weeks away, and these records could not be more relevant to the ongoing debate on these issues."

EFF sued for the release of the records under the Freedom of Information Act (FOIA) earlier this year, demanding documents concerning briefings, discussions, or other contacts ODNI officials have had with representatives of telecommunications companies or members of Congress about amending FISA. Today's 250-page disclosure focuses on communications between ODNI and members of Congress but includes no information about the telecom industry's lobbying efforts. A federal judge ordered ODNI to release the rest of the relevant documents by December 10.

EFF 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 domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws.

Part one of the ODNI documents:
http://www.eff.org/files/filenode/foia_C0705278/113007_odni01.pdf

Part two of the ODNI documents:
http://www.eff.org/files/filenode/foia_C0705278/113007_odni02.pdf

For more on EFF v. ODNI:
http://www.eff.org/issues/foia/cases/C-07-05278

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
November 28, 2007

Judge Cancels Friday Hearing, Orders Government to Comply by December 10

San Francisco - Late Tuesday, the Electronic Frontier Foundation (EFF) won the speedy release of telecom lobbying records from the Office of the Director of National Intelligence (ODNI).

The agency was ordered to comply with a new December 10 deadline -- in time for the documents to play a role in the congressional debate over granting amnesty for telecommunications companies taking part in illegal electronic surveillance. The ruling by U.S. District Judge Susan Illston vacates a hearing on the matter previously scheduled for Friday.

"We are pleased Judge Illston recognized that time was running out for these documents to make a difference in the legislative debate. She agreed that the Administration is dragging its feet in making relevant information available and stressed that the public has a right to full disclosure before Congress acts on the pending telecom amnesty proposals," said EFF Senior Counsel David Sobel. "The court's order confirms our belief that aggressive use of the Freedom of Information Act is needed to challenge government secrecy."

EFF sued for release of the documents after ODNI's slow response to EFF's Freedom of Information Act (FOIA) request to disclose information about any telecom lobbying activity. In the meantime, debate in Congress heated up over proposed changes to the Foreign Intelligence Surveillance Act (FISA), including proposals aimed at letting telecoms off the hook for their role in warrantless spying on millions of ordinary Americans.

"The full Senate could start debate on amnesty for telecoms as soon as the first week in December," said EFF Staff Attorney Marcia Hofmann. "We look forward to making the records public and discovering what light they can shed on this very important issue."

EFF 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 domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government.

For the full order from Judge Illston:
http://www.eff.org/files/filenode/foia_C0705278/eff_v_odni_order.pdf

Contacts:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Related Issues:
November 28, 2007

EFF Defends Critic from Local Government's Heavy-Handed Tactics

Manalapan, NJ - The Electronic Frontier Foundation (EFF) asked a Superior Court judge in New Jersey today to preserve the free speech rights of an anonymous blogger facing legal threats from local government officials.

The blogger, writing as "daTruthSquad" on a site hosted on Google's Blogspot service, has criticized a controversial lawsuit filed by the township of Manalapan, as well as the officials who decided to pursue the case. The township subpoenaed Google for "daTruthSquad's" identity -- as well as for any emails, blog drafts, and other information Google has about the blogger -- claiming that the defendant in the case is actually writing the posts. The defendant, however, has already sworn under penalty of perjury that he is not "daTruthSquad."

"Bloggers, as well as everyone else, have a First Amendment right to speak anonymously," said EFF Staff Attorney Matt Zimmerman. "Litigants don't get a blank check to pry into the private lives of critics when they say things the litigants don't like. The fact that it is the government trying to abuse the discovery process makes this attempted invasion of privacy all the more repugnant."

In a motion to quash the subpoena filed today, EFF asked the court to block the township's attempt to uncover the identity of "daTruthSquad" and allow the blogger to continue to write about this or any other issue without being forced to identity him or herself.

"Attempts to intimidate critics into silence need to be confronted whenever and wherever they occur," said Zimmerman. "Governmental entities simply cannot be permitted to investigate critics because they dare to voice disapproval of public officials. It remains our sincere hope that the Township will abandon this intolerable legal strategy."

For the full motion to quash:
http://www.eff.org/files/filenode/manalapan/motiontoquashmpa-signed.pdf

For more on this case:
http://www.eff.org/cases/manalapan-v-moskovitz

Contacts:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
November 28, 2007

Technology Rights Group Addresses the Comcast Controversy

San Francisco - In the wake of the detection and reporting of Comcast Corporation's controversial interference with Internet traffic, the Electronic Frontier Foundation (EFF) has published a comprehensive account of Comcast's packet-forging activities and has released software and documentation instructing Internet users on how to test for packet forgery or other forms of interference by their own ISPs.

Separate tests in October from EFF, the Associated Press, and others showed that Comcast was forging small parcels of digital data, known as packets, in order to interfere with its subscribers' and other Internet users' ability to use file-sharing applications, like BitTorrent and Gnutella. Despite having been confronted by this evidence, Comcast continues to issue incomplete and misleading statements about their practices and their impact on its customers.

"Comcast is discriminating among different kinds of Internet traffic based on the protocols being used by its customers," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "When confronted, Comcast has been evasive and misleading in its responses, so we decided to start gathering the facts ourselves."

Protocol-specific discrimination gives ISPs a tremendous amount of power over the kinds of new applications and services that can be deployed by innovators and competitors. To the extent that practices like those employed by Comcast change the "end-to-end" architecture of the Internet, those practices jeopardize the Internet's vibrant innovation economy.

"This recent interference by Comcast in their subscribers' Internet communications is a cause for grave concern," said EFF Staff Technologist Peter Eckersley. "It threatens the open Internet standards and architecture that have made the network such an engine of technical and economic innovation."

In addition to an account of the results of EFF's independent testing of Comcast's packet forging activities, EFF has also issued a detailed document and software to assist other networking experts in conducting their own testing.

"If ISPs won't give their customers accurate information about their Internet traffic controls, we have to detect and document them for ourselves," said EFF Staff Technologist Seth Schoen.

For "Packet Forgery by ISPs: A Report on the Comcast Affair":
http://www.eff.org/wp/packet-forgery-isps-report-comcast-affair

For "Detecting Packet Injection: A Guide to Packet Spoofing by ISPs":
http://www.eff.org/wp/detecting-packet-injection

For more on EFF's research into Comcast's packet monitoring:
http://www.eff.org/testyourisp

Contacts:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Peter Eckersley
Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Seth Schoen
Staff Technologist
Electronic Frontier Foundation
seth@eff.org

Related Issues:
November 27, 2007

EFF Demands Information on Industry Campaign to Block Surveillance Suits

*UPDATE* EFF Wins Fast-Track Release of Telecom Lobbying Records: Judge Cancels Friday Hearing, Orders Government to Comply by December 10

San Francisco - On Friday, November 30, at 9am, the Electronic Frontier Foundation (EFF) will urge a federal judge to speed the release of lobbying records that could shed light on the congressional debate over granting amnesty for telecommunications companies taking part in illegal electronic surveillance.

In just a few days, the U.S. Senate will consider changes to the Foreign Intelligence Surveillance Act (FISA), including proposals aimed at letting telecoms off the hook for their role in warrantless spying on millions of ordinary Americans. But the Office of the Director of National Intelligence (ODNI) is dragging its feet on EFF's Freedom of Information Act (FOIA) request to disclose information about telecom lobbying activity. In Friday's hearing, EFF will ask U.S. District Court Judge Susan Illston to order ODNI to release this information while it could still impact the Senate vote.

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 domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government.

WHAT:
EFF v. ODNI

WHEN:
9 a.m.
Friday, November 30

WHERE:
U.S. District Court, Northern District of California
Courtroom 10, 19th Floor
450 Golden Gate Ave.
San Francisco, CA 94102

For more on this FOIA lawsuit:
http://www.eff.org/issues/foia/cases/C-07-05278

For more on Hepting v. AT&T:
http://www.eff.org/nsa

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
November 15, 2007

Full House and Senate Judiciary Committee Each Pass Bills with No Amnesty for Warrantless Surveillance

Washington, D.C. - Both the full House of Representatives and the Senate Judiciary Committee voted Thursday to keep telecommunications companies on the hook for their role in illegal government spying on millions of ordinary Americans -- at least for now.

The bills each make changes to the Foreign Intelligence Surveillance Act (FISA). But, despite veto threats from the White House, neither of the two bills give blanket amnesty to telecoms that took part in the massive warrantless domestic surveillance program. Both bills would allow dozens of lawsuits against the telecoms to proceed, thus allowing federal courts to rule on whether dragnet domestic surveillance documented is legal.

The Electronic Frontier Foundation (EFF) represents the plaintiffs in Hepting v. AT&T, the first class-action lawsuit accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in dragnet government spying on millions of Americans. While the Senate Judiciary Committee bill as written does not affect this and other lawsuits over the Administration's warrantless surveillance, provisions that allow the cases to proceed while also affording the companies some form of limited liability relief could well be added back into the bill when it is debated on the Senate floor. A conference committee will then meet to reconcile the House and Senate versions.

"We are pleased that the House and a majority of the Judiciary Committee's members have signaled that they want Americans to have their day in court," said EFF Staff Attorney Kevin Bankston. "The fight isn't over yet, however. We look forward to working with Senators Leahy, Specter, and Feingold and other lawmakers in both chambers of Congress to make sure that the bill eventually sent to the president allows the people's lawsuits to go forward."

For more on Hepting v. AT&T and telecom immunity:
http://www.eff.org/nsa

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Related Issues:
November 15, 2007

Fourth Successful Challenge from EFF's Patent-Busting Project

San Francisco - San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination from the U.S. Patent and Trademark Office (PTO) of a bogus patent on Internet subdomains -- the fourth successful reexamination request from EFF's Patent Busting Project.

The patent, now held by Hoshiko, LLC, claims to cover the method of automatically assigning Internet subdomains, like "action.eff.org" for the parent domain "eff.org." Previous patent owner Ideaflood used this illegitimate patent to demand payment from website hosting companies that offer such personalized domains, including Freehomepage.com, T35 Hosting, and LiveJournal, a social networking site where each of its three million users have their own subdomain.

In the reexamination request, EFF and Rick Mc Leod of Klarquist Sparkman, LLP, showed that the method Ideaflood claimed to have invented was well known before the patent was issued. In fact, website developers were having public discussions about how to create these virtual subdomains on an Apache developer mailing list for more than a year before Ideaflood made its patent claim. The open source developers established a public record of the technology development, providing the linchpin to EFF's patent challenge.

"The hard work of open source developers should not be taken out of the public domain and used to threaten other legitimate innovators," said EFF Senior Staff Attorney Jason Schultz, who heads EFF's Patent Busting Project. "Fortunately, the open source approach to development helped protect Apache and other web projects by creating the evidence needed to challenge this illegitimate patent."

The challenge to the Ideaflood patent is part of EFF's Patent Busting Project, which combats the chilling effects that bad patents have on public and consumer interests. So far, the project has killed one bogus patent and won reexamination of three others.

"Based on the PTO's initial analysis in the reexamination order, it appears likely that all claims will be rejected in view of the techniques disclosed by Apache developer Ralf Engelschall and others," said Rick Mc Leod, who drafted EFF petition. "We look forward to the PTO's detailed analysis of our request."

For the full reexamination order:
http://w2.eff.org/patent/wanted/ideaflood/re-exam_order.pdf

For more on EFF's Patent Busting Project:
http://www.eff.org/patent

Contacts:

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Rick Mc Leod
Klarquist Sparkman, LLP
rick.mcleod@klarquist.com

Related Issues:
November 14, 2007

Judiciary Committee to Mark Up Critical Bill Thursday

Washington, D.C. - Members of the Senate Judiciary Committee meet Thursday to discuss letting telecoms off the hook for their role in illegal spying on millions of ordinary Americans -- a blatant attempt to block lawsuits that would determine if the surveillance is legal.

The "FISA Amendments Act" includes blanket immunity for telecommunications companies who took part in a massive warrantless domestic surveillance program to wiretap Americans' communications. However, committee member Sen. Russ Feingold says he will offer an amendment that would remove this blanket immunity from the bill. The Electronic Frontier Foundation (EFF) urges lawmakers to support Sen. Feingold in holding the telecoms accountable for their involvement in the illegal spying.

"Granting immunity to the telecoms would make Congress complicit in the cover-up of illegal, wholesale warrantless spying," said EFF Legal Director Cindy Cohn. "These amnesty proposals are aimed at blocking the courthouse door to millions of folks whose rights were violated by corporations that ignored both the law and their duty to keep everyday communications private and safe. We are pleased that Senator Feingold is taking a stand, and we hope that other committee members join him."

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit that accuses the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in the dragnet government spying. EFF's case includes undisputed evidence that AT&T installed fiberoptic splitters at its facility at 611 Folsom Street in San Francisco that made copies of all emails, web browsing and other Internet traffic to and from AT&T customers on AT&T's key giant fiberoptic lines --including purely domestic communications -- and provided those copies to the NSA.

The House of Representatives may also consider an electronic surveillance bill Thursday. However, the House version of the bill does not grant immunity for telecoms, and would allow the legal cases to proceed.

For more on Hepting v. AT&T and telecom immunity:
http://www.eff.org/nsa

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Related Issues:
November 13, 2007

Urges Supreme Court to Crack Down on Post-Sale Restrictions

San Francisco - The Electronic Frontier Foundation (EFF) today urged the U.S. Supreme Court to protect consumers' traditional right to use, repair, and resell the products they own, even if those products are patented. At stake is the enforceability of "single use" and "not for resale" labels on patented products.

The amicus brief -- submitted on behalf of EFF, Consumers Union, and Public Knowledge -- was filed in Quanta v. LG Electronics, currently pending before the Supreme Court. The case will test the vitality of the "patent exhaustion" doctrine, which entitles a consumer to use, repair, or resell patented products that they have purchased.

The issue is of increasing importance to consumers, who often face "single use only" and "not for resale" labels on patented products, interfering with legitimate aftermarkets for parts and service. Lexmark, for example, has used "single use only" labels to limit the market for refilled toner cartridges. Similarly, "not for resale" labels could interfere with used and refurbished product sales on eBay and Craigslist. EFF's brief urges the Supreme Court to prohibit patent owners from using patent infringement suits to enforce these kinds of post-sale use restrictions on the products they sell.

"Patent owners are trying to use 'label licenses' to deprive consumers of their right to use, repair and resell the products they own," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "It's time for the Supreme Court to step in and put a stop to it."

The case is No. 06-937. The Solicitor General, Hewlett-Packard, Dell, and Gateway all urged the Supreme Court to review the case, and oral argument is expected in early 2008.

For the full amicus brief:
https://www.eff.org/files/filenode/quanta_v_lg/quanta_amicus.pdf

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
November 6, 2007

Ruling Advances EFF's Class-action Lawsuit Against AT&T

San Francisco - A federal judge today ruled on a preservation motion filed by the Electronic Frontier Foundation (EFF), ordering that telecommunications companies must preserve any evidence of collaborating with the government in illegal spying on ordinary Americans.

In his ruling, U.S. District Court Judge Vaughn Walker ordered the telecommunications companies to halt any routine destruction of documents or to arrange for the preservation of accurate copies. On December 14, each party must provide the court with confirmation that the court's order has been carried out. The court order did not require the government or the carriers to reveal whether or not they had any relevant evidence.

The government and the carriers had opposed the preservation motion, claiming that the government's invocation of the state secrets privilege made it impossible to proceed with a preservation order. In litigation, parties are typically required to preserve all relevant evidence.

For the judge's order:
http://www.eff.org/files/filenode/att/393%20order.pdf

For more on the class-action lawsuit against AT&T:
http://www.eff.org/cases/att

Contacts:

Kurt Opsahl

Senior Staff Attorney

Electronic Frontier Foundation

kurt@eff.org

Related Issues:
November 5, 2007

Press Conference on Capitol Hill on Wednesday, November 7, 10:30am

Washington, D.C. - On Wednesday, November 7, at 10:30am, telecommunications technician and AT&T whistleblower Mark Klein will speak out at a press conference on Capitol Hill, explaining why he is asking lawmakers to reject immunity for telecoms who assisted the Bush administration's spying on millions of Americans.

Klein witnessed first-hand the technology AT&T built to assist the government's domestic warrantless wiretapping program at AT&T's main switching facility in San Francisco. As part of his job at AT&T, Klein connected high-speed fiber optic cables to sophisticated equipment that intercepted communications from AT&T customers and then copied and routed every single one to a room controlled by the National Security Agency (NSA). Klein has provided evidence for the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&T for its role in the illegal spying.

"My job required me to enable the physical connections between AT&T customers' Internet communications and the NSA's illegal, wholesale copying machine for domestic emails, Internet phone conversations, web surfing and all other Internet traffic. I have first-hand knowledge of the clandestine collaboration between one giant telecommunications company, AT&T, and the National Security Agency to facilitate the most comprehensive illegal domestic spying program in history," said Klein.

Also speaking at the event Wednesday is network systems and infrastructure expert Brian Reid, who will explain how the infrastructure that Mr. Klein helped install likely fits into and facilitates the massive warrantless surveillance program.

WHO:
Mark Klein, former AT&T communications technician and domestic spying program whistleblower
Brian Reid, network systems and infrastructure expert
Cindy Cohn, Legal Director, Electronic Frontier Foundation
Kevin Bankston, Staff Attorney, Electronic Frontier Foundation

WHAT:
Press conference/Q & A to urge the Senate to reject blanket retroactive immunity for unlawfully aiding illegal domestic NSA spying.

WHERE:
Senate Banking Committee Hearing Room, Dirksen 538

WHEN:
10:30am, Wednesday, November 7th, 2007

Contacts:

Trevor FitzGibbon
Fenton Communications
trevor@fenton.com

Alex Howe
Fenton Communications
alex@fenton.com

Related Issues:
October 31, 2007

Six Concrete Guidelines Aim to Balance Free Speech Rights and Copyright

San Francisco - Online video-hosting services like YouTube have ushered in a new era of free expression online, as well as vigorous copyright enforcement efforts. Today, the Electronic Frontier Foundation (EFF) and a coalition of leading public interest groups issued a "Fair Use Principles" document that sets out six concrete guidelines designed to minimize the collateral damage that copyright enforcement efforts may inflict on video creators who are "remixing" copyrighted material into new video creations.

Fair use is the copyright doctrine that permits unauthorized uses of copyrighted material for transformative purposes. Creators naturally quote from and build upon the media that makes up their culture, yielding new works that comment on, parody, satirize, criticize, and pay tribute to the expressive works that have come before. Consequently, much of the new "remix" creativity on video hosting sites like YouTube depends on fair use.

As part of their own "UGC Principles" effort announced last week, video hosting services and major media companies emphasized the importance of accommodating fair use. The "Fair Use Principles" released today propose detailed steps that content owners and video hosting services can take to make good on that promise.

"As video hosting services begin to implement copyright filtering technology, it is time to discuss concrete strategies to protect creative videos that remix material from movies, TV and popular music," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Our aim is to speak for the interests of the millions of amateur creators who are fueling the popularity of YouTube and similar sites."

Fair uses have been mistakenly caught up in copyright enforcement dragnets in the past. For example, earlier this year blogger Michelle Malkin's video about rapper Akon was erroneously taken down from YouTube after Universal Music Group (UMG) claimed copyright infringement. In that case, two excerpts from Akon music videos were embedded in a longer commentary about the rap star. Although UMG ultimately admitted its mistake, automated content filtering raises the possibility that commentaries like this might be blocked preemptively in the future.

With cases like this one in mind, "Fair Use Principles for User-Generated Content" describes six steps that service providers and copyright owners should take to minimize damage to fair use during copyright enforcement efforts. One key principle is "three strikes before blocking" -- verifying that the video matches the video of a copyrighted work, that the audio matches the audio of the same work, and that nearly all of the clip is comprised of that single work. In addition, if a video is blocked by a content filter, the creator should be given an opportunity to dispute the filter's determination.

To accompany the "Fair Use Principles" document, EFF has also posted a gallery of videos that could be jeopardized by automated copyright filters, in hopes that video hosting services and content owners will be able to test their filters against these fair use videos.

The coalition supporting the principles includes the Center for Social Media, School of Communications, American University; Program on Information Justice and Intellectual Property, Washington College of Law, American University; Public Knowledge; Berkman Center for Internet and Society at Harvard Law School; and the American Civil Liberties Union of Northern California. In addition, the Fair Use Project at Stanford Law School's Center for Internet and Society contributed to the development of the document.

For "Fair Use Principles for User-Generated Video Content":
http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen

For the gallery of fair use videos:
http://www.eff.org/pages/UGC-test-suite

For more on fair use and free speech:
http://www.eff.org/issues/ip-and-free-speech

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
October 23, 2007

Patent Office to Take Second Look at Meritless Claims Threatening Mobile Information Access

San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination from the U.S. Patent and Trademark Office (PTO) of a bogus patent threatening mobile information access. The reexamination order is the third granted by the PTO after challenges from EFF's Patent Busting Project.

NeoMedia Technologies, Inc., claims to own rights to all systems that provide information over computer networks using database-like lookup procedures that rely on scanned inputs, such as a barcode. NeoMedia has used these claims to threaten and sue innovators in the mobile information space. But EFF's reexamination request, filed in conjunction with Paul Grewal and James Czaja of Day Casebeer Madrid & Batchelder, showed that the functionality covered by NeoMedia's bad patent was repeatedly included as part of prior patent applications from other companies.

"Overbroad and invalid patents threaten to chill important innovations, especially for startups and other nascent entrepreneurs," said EFF Senior Staff Attorney Jason Schultz. "It's important that technology in the public domain stays there."

NeoMedia has the opportunity to file comments defending the patent before the PTO makes its final determination. However, the PTO has narrowed or revoked roughly 70 percent of patents it has decided to reexamine.

"Re-examination is an essential part of the patenting process," said Paul Grewal, a partner at Day Casebeer Madrid & Batchelder. "We are pleased that the Patent Office has decided to examine NeoMedia's efforts to claim for itself what the public has long enjoyed."

The successful reexamination request for the NeoMedia patent is the latest big victory for EFF's Patent Busting Project, which combats the chilling effects bad patents have on the public interest and innovation. So far, the project has helped kill a bogus patent covering a system and method of creating digital recordings of live performances. The PTO has also granted another EFF reexamination request for an illegitimate patent for online test-taking.

For the full reexamination order:
http://w2.eff.org/patent/wanted/order_granting_reexam_neomedia.pdf

For more information about the NeoMedia patent reexamination:
http://www.eff.org/patent/wanted/patent.php?p=neomedia

For more on the Patent Busting Project:
http://www.eff.org/patent/

For more on Day Casebeer Madrid & Batchelder:
http://www.daycasebeer.com

Contacts:

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Paul Grewal
Partner
Day Casebeer Madrid & Batchelder
pgrewal@daycasebeer.com

Related Issues:
October 17, 2007

Lawsuit Filed as Congress Debates Letting Industry Off the Hook for Illegal Spying

For Immediate Release: Wednesday, October 17, 2007

San Francisco - The Electronic Frontier Foundation (EFF) filed suit against the Office of the Director of National Intelligence (ODNI) today, demanding any information about telecommunications companies' efforts to get off the hook for their role in the government's illegal electronic surveillance of millions of ordinary Americans.

Congress is currently considering granting amnesty to the telecoms -- a blatant attempt to derail lawsuits aimed at holding the companies responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government. EFF represents the plaintiffs in Hepting v. AT&T, one of dozens of class-action suits accusing the telecoms of violating customers' rights by illegally assisting the National Security Agency with this domestic surveillance.

News reports have described an elaborate lobbying campaign by the telecoms to drum up support for legislation that would hold them unaccountable for their actions, and Director of National Intelligence Mike McConnell has publicly voiced his support for amnesty. But McConnell's office has not yet responded to EFF's Freedom of Information Act (FOIA) requests to disclose records about this lobbying activity.

"Congress is debating amnesty for the telecoms right now -- amnesty that could imperil judicial review of a very controversial government program, as well as threaten class-action lawsuits that impact millions of Americans," said EFF Staff Attorney Marcia Hofmann. "We deserve to know what kind of lobbying has gone on behind the scenes before lawmakers make this critical decision."

EFF's suit asks for the immediate disclosure of ODNI's telecom lobbying records, including any documents concerning briefings, discussions, or other contacts officials have had with representatives of telecommunications companies or members of Congress. This lawsuit comes just two weeks after EFF filed a similar FOIA suit against the Department of Justice for withholding records on telecom lobbying.

For the full complaint:
http://www.eff.org/files/filenode/foia_C0705278/ODNI_complaint.pdf

For more on our FOIA work:
http://www.eff.org/issues/foia

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
October 12, 2007

EFF Tells Congress About Hidden Costs of Dragnet Spying

San Francisco - The Electronic Frontier Foundation (EFF) told a congressional committee today that the government's illegal dragnet electronic surveillance opens the door to even more privacy violations for ordinary Americans.

The sheer volume of personal information collected and the databases in which that information is stored create a giant target for attackers who want to steal or expose Americans' personal data. In a response to questions asked of EFF by the House Committee on Energy and Commerce, EFF Legal Director Cindy Cohn explained in comments submitted Friday that an increase in the number of databases introduces more points of vulnerability into the system, putting sensitive personal information from millions of people at risk.

"We have all heard about security problems with government databases. A report from the Department of Homeland Security found 477 breaches in 2006 alone," said Cohn. "The warrantless domestic surveillance going on now isn't just illegal -- it could expose your personal information to thieves and criminals."

The committee asked EFF for input as part of its review of the Protect America Act, deeply flawed legislation that broadly expanded the National Security Agency's authority to spy on Americans without warrants. Next week, the House is set to vote on the RESTORE Act, a bill designed restore the civil liberties lost under the previous law.

Since the committee had also sent a list of key questions to AT&T and the other major telecommunications firms about their involvement in illegal surveillance activities, EFF provided the committee information about the Hepting v. AT&T lawsuit. EFF represents the plaintiffs in this class-action lawsuit brought by AT&T customers, accusing the telecommunications company of violating their rights by illegally assisting the NSA's domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government.

EFF also provided the committee with a legal analysis of the use of so-called "exigent letters" by the government to obtain information about Americans and about their "communities of interest," two topics also raised by the committee in its letters to the telecommunications carriers. EFF's Freedom of Information Act (FOIA) work uncovered this illegal broadening of surveillance authority.

"We're pleased that the committee is interested in obtaining answers from the leading telecommunications carriers about whether they have been following the privacy laws protecting their customers' communications. Congressional oversight of the telecommunications companies' activities is long overdue," said Cohn.

For EFF's full comments to the House Committee on Energy and Commerce:

http://eff.org/Privacy/Surveillance/FISA/committee_letter.pdf

For more on the class-action lawsuit against AT&T:

http://www.eff.org/legal/cases/att

Contact:

Cindy Cohn

Legal Director

Electronic Frontier Foundation

cindy@eff.org

Related Issues:
October 5, 2007

Thomas J. Downey and Adam M. Eisgrau Will Work to Block Amnesty for Telecoms

San Francisco - As Congress debates letting the telecom industry off the hook for its compliance with illegal government surveillance of millions of ordinary Americans, the Electronic Frontier Foundation (EFF) has enlisted two veteran lobbyists to try to block amnesty for companies collaborating with the warrantless spying.

EFF is lead counsel for the plaintiffs in Hepting v. AT&ampT, one of many lawsuits aimed at holding telecommunications companies accountable for violating their customers' rights by illegally assisting the National Security Agency in domestic surveillance. The opportunity for this critical case to be decided by a judge is under serious threat as the White House calls for Congress to provide these companies with immunity for their role in the illegal program.

In an effort to preserve the courts' crucial role in protecting the privacy of all Americans, EFF will now take its fight against warrantless spying to Capitol Hill. Thomas J. Downey and Adam M. Eisgrau, both with decades of experience in Washington, have been retained by EFF to work to block amnesty for companies who break the law.

"While EFF generally does not engage in Washington-style lobbying, we need to make Congress understand the importance of letting our case against AT&ampT go forward," said EFF Executive Director Shari Steele. "By releasing the telecoms from liability, Congress would be permitting the widespread flouting of our laws by private companies entrusted with our most personal communications."

To help with EFF's "Stop the Spying" campaign:
http://www.stopthespying.org

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
September 27, 2007

EFF Lawsuit Demands Information About Telecom Industry Lobbying

EFF Lawsuit Demands Information About Telecom Industry Lobbying

Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit against the Department of Justice (DOJ) today, demanding any records of a telecom industry lobbying campaign to block lawsuits over their compliance with illegal electronic surveillance. EFF's lawsuit comes as Congress debates letting telecommunications companies off scot-free as part of the hotly disputed "modernization" of the Foreign Intelligence Surveillance Act (FISA).

EFF represents the plaintiffs in Hepting v. AT&ampT, a class-action lawsuit brought by AT&ampT customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government.

The government has intervened and moved for dismissal of many of these lawsuits. The DOJ has also pushed for changes to federal law that would ensure the telecoms are not held responsible for their role in the warrantless surveillance. Meanwhile, the DOJ has not responded to EFF's Freedom of Information Act (FOIA) requests to disclose records concerning any lobbying activities regarding potential immunity for the telecom industry.

"The White House is publicly calling for immunity for the telecoms, while a recent Newsweek article detailed a 'secretive lobbying campaign' to block the lawsuits," said EFF Staff Attorney Marcia Hofmann. "If there are backroom deals going on at the Department of Justice, then Americans need to know about them now, before Congress passes any law that gets the telecom companies off the hook."

The Department of Justice has already agreed that the records should be disclosed quickly because of the urgent need to inform the public about these issues. However, despite this recognition, DOJ has neither processed the FOIA requests nor told EFF when the documents might be released. EFF's suit asks for the immediate disclosure of the telecom lobbying records, including any documents concerning briefings, discussions, or other contacts DOJ officials have had with representatives of telecommunications companies. The suit also asks for records of contact between the DOJ and members of Congress about telecom immunity.

"Our lawsuit and others allege serious privacy law violations that impact millions of ordinary Americans," said EFF Senior Staff Attorney Kurt Opsahl. "If the telecoms are seeking amnesty for their illegal activity, Americans deserve to know why and how lobbyists pressured the DOJ."

For the full complaint:
http://www.eff.org/flag/fisa_lobbying/092707_complaint.pdf

For more on our FOIA work:
http://www.eff.org/flag

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
September 17, 2007

Free Culture Leader John Buckman and Privacy and Security Expert Lorrie Faith Cranor Sign on to Distinguished Team

San Francisco - The Board of Directors of the Electronic Frontier Foundation (EFF) has elected two leading technologists to join its executive board: free culture leader John Buckman and privacy and security expert Lorrie Faith Cranor.

John Buckman is a programmer, an entrepreneur, and the founder of Magnatune.com -- an online record label that strives to be fair to both recording artists and consumers alike. The Magnatune site provides web-based distribution to over 250 recording artists and features an innovative tool for online music licensing for film, television, and new media. This Creative Commons-backed business model has helped establish Buckman as a leader in the free culture movement. Buckman is also the founder Bookmooch.com, an online community for the exchanging of used books. His past accomplishments include having founded email software company Lyris in 1994, which he sold to JL Halsey in 2005. He also created Tile.net, an early web site directory that was sold in 2001.

"EFF fights to protect the rights of artists and fans who use technology to make and enjoy creative works," said Buckman. "I'm happy to join them in taking on these cutting-edge issues."

Lorrie Faith Cranor is an Associate Research Professor in the School of Computer Science and the department of Engineering and Public Policy at Carnegie Mellon University. She has played a key role in building the usable privacy and security research community, having co-edited the seminal book "Security and Usability" and founded the Symposium On Usable Privacy and Security (SOUPS). Cranor has authored over 80 research papers on online privacy, phishing and semantic attacks, spam, electronic voting, anonymous publishing, usable access control, and other topics. She has also testified as an expert in lawsuits challenging the constitutionality of Internet "harmful to minors" laws. In 2003, Cranor was named one of the top 100 innovators 35 or younger by Technology Review magazine. She was previously a researcher at AT&ampT Labs Research and taught in the Stern School of Business at New York University.

"The privacy and security policy decisions made now will have far-reaching implications in the years to come," said Cranor. "I'm pleased to work with EFF as they champion the public interest in these important debates."

Other members of EFF's executive board include John Perry Barlow, David Farber, Edward W. Felten, John Gilmore, Brewster Kahle, Joe Kraus, Lawrence Lessig, Pamela Samuelson, Shari Steele, and Brad Templeton.

"EFF is so fortunate to have such a distinguished Board of Directors, comprised of leaders in technology, policy, and law," said EFF Executive Director Shari Steele. "John and Lorrie bring a wonderful wealth of experience to EFF and will help us continue to think about our role in relation to emerging technologies."

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

September 11, 2007

Court Blocks DirecTV's Heavy-Handed Legal Tactics

San Francisco - In an important ruling today, the 9th U.S. Circuit Court of Appeals blocked satellite television provider DirecTV's heavy-handed legal tactics and protected security and computer science research into satellite and smart card technology after hearing argument from the Electronic Frontier Foundation (EFF).

The cases, DirecTV v. Huynh and DirecTV v. Oliver, involved a provision of federal law prohibiting the "assembly" or "modification" of equipment designed to intercept satellite signals. DirecTV maintained that the provision should cover anyone who works with equipment designed for interception of their signals, regardless of their motivation or whether any interception occurs. But in a hearing earlier this year, EFF argued that the provision should apply only to entities that facilitate illegal interception by other people and not to those who simply tinker or use the equipment, such as researchers and others working to further scientific knowledge of the devices at issue.

"Congress never meant this law to be used as a hammer on those who use or tinker with new technologies," said EFF Senior Staff Attorney Jason Schultz. "We're pleased the court recognized that researchers need to be protected."

These cases were part of DirecTV's nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal simply because they had purchased smart card technology. Because DirecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF has worked to limit the lawsuits to only those cases where DirecTV has proof that their signals were illegally received.

"DirecTV always had legal recourse against those who pirate their signal. The ruling today prevents satellite and cable TV companies from piling on excessive damages that would punish and chill legitimate encryption research," said EFF Civil Liberties Director Jennifer Granick.

David Price and Trevor Dryer at Stanford Law School's Cyberlaw Clinic also assisted in this case.

For the full opinion from the 9th Circuit:
http://www.eff.org/legal/cases/directv_v_huynh/directv_ruling.pdf

For more on this case:
http://www.eff.org/legal/cases/directv_v_huynh

Contacts:

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Related Issues:
September 10, 2007

Jennifer Stisa Granick Named Civil Liberties Director

San Francisco - Noted computer crime attorney Jennifer Stisa Granick has joined the Electronic Frontier Foundation (EFF) as its new Civil Liberties Director, working on government surveillance, Fourth Amendment, computer security, and computer crime law.

Granick previously was Executive Director at Stanford Law School's Center for Internet and Society as well as Director of the Cyberlaw Clinic. Before Stanford, Granick spent almost a decade practicing criminal defense law, focusing on hacker defense and the interaction of free speech, privacy, law, and technology.

"EFF plays a critical role in the battle to protect freedom and privacy as new technologies transform our lives, and I'm thrilled to be a part of this important work," Granick said. "I'm especially looking forward to protecting privacy rights in digital communications technologies, creating standards for how new technologies are used in national security and law enforcement investigations and promoting network privacy by working with security researchers."

Granick was selected by Information Security magazine in 2003 as one of 20 "Women of Vision" in the computer security field. She has spoken to the American Bar Association, National Security Agency, Naval Postgraduate School, International Security Forum, Computer Security Institute, Black Hat security conference, and the international Workshop on the Economics of Information Security, among others.

"EFF has long wanted to expand into criminal defense work, and Jennifer is the best there is," said EFF Legal Director Cindy Cohn. "It's time to take a deeper look at how technologies are being used in criminal and national security prosecutions. We're all very excited about adding this new depth to our work."

Granick received her J.D. degree from the University of California Hastings College of the Law and her undergraduate degree from the New College of the University of South Florida.

Contact:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

August 29, 2007

EFF Releases Comprehensive Report on Recording Industry's Litigation Campaign

San Francisco - As college students across the country head back to class this fall, they need to worry about more than keeping up on their schoolwork. The Recording Industry of America (RIAA) continues to target college campuses for hundreds of new lawsuits each month. Meanwhile, under pressure from the recording industry, universities are instituting draconian punishments for students suspected of sharing music files. At the same time, the RIAA continues to sue file sharers off campus, with a total tally now exceeding 20,000.

In a report released today, "RIAA v. The People: Four Years Later," the Electronic Frontier Foundation (EFF) provides the only comprehensive look at the four-year litigation campaign waged by the RIAA against music fans. The report traces the RIAA campaign from its beginnings in 2003 against a handful of students at Princeton, Rensselaer Polytechnic, and Michigan Tech to the current spate of "pre-litigation settlement" letters being sent to universities nationwide.

"Despite the RIAA's legal campaign, file-sharing is more popular than ever," said EFF Senior Staff Attorney Fred von Lohmann. "History will treat this as a shameful chapter in the history of the music industry, when record companies singled out random music fans for disproportionate penalties. Artists must be compensated, but these lawsuits aren't putting money in any creator's pocket."

The crackdown on Internet file-sharing has already driven music fans to technologies that are harder to monitor -- for example, burning and exchanging CDs among friends and sharing on members-only "darknets." EFF calls on universities to help artists get paid for their creative work while protecting their students from costly legal problems. Universities should insist on a blanket license for their students, collecting a reasonable regular payment -- for example, $5 a month -- in exchange for the right to keep sharing music with their classmates.

"This is about money, not morality," said von Lohmann. "With a blanket licensing solution, the RIAA can call off the lawyers and the lobbyists, and universities can get back to education instead of copyright enforcement."

For the full report "RIAA v. The People: Four Years Later":
http://www.eff.org/IP/P2P/riaa_at_four.pdf

For more on the litigation campaign:
http://www.eff.org/IP/P2P/?f=riaa-v-thepeople.html

FAQ for students faced with "pre-litigation letters":
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/college_faq.php

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
August 22, 2007

Illegitimate Patent Used to Threaten Website Hosting Companies

San Francisco - The Electronic Frontier Foundation (EFF) is challenging a bogus patent on Internet subdomains that has been used to threaten small businesses and innovators.

Ideaflood, a self-proclaimed "intellectual property holding company," used this illegitimate patent to demand payment from website hosting companies that offer virtual, personalized subdomains -- like "action.eff.org" for the parent domain "eff.org." But in a reexamination request filed with the United States Patent and Trademark Office (PTO) today, EFF and Rick Mc Leod of Klarquist Sparkman, LLP show that the method Ideaflood claims to have invented was well known before the patent was issued. In fact, website developers were having public discussions about how to create these virtual subdomains on an Apache developer mailing list for more than a year before Ideaflood made its patent claim.

"This illustrates how an open-source project can establish a public record of technology development and thwart invalid patents," said EFF Senior Staff Attorney Jason Schultz. "The public discussions on the Apache and other mailing lists have shown that Ideaflood's patent claims were without merit and that the patent should be revoked before it causes any more damage to innovation on the Internet."

The companies that Ideaflood threatened include Freehomepage.com, T35 Hosting, and LiveJournal, a social networking site where each of its three million users have their own subdomain. The patent has since been reassigned to a company called Hoshiko, LLC.

"Our patent system is intended to encourage innovation, not damage it by encroaching on the public domain," said Rick Mc Leod, who drafted EFF's petition. "Unfortunately, in recent years the PTO has been deluged with applications, making it difficult to determine whether many patents should be issued or rejected. When a 'bad' patent targets something as ephemeral as the Internet, it can be even more difficult to get that patent invalidated. Fortunately, a diligent, prior art searcher sent us a key reference."

The challenge to the Ideaflood patent is part of EFF's Patent Busting Project, which combats the chilling effects that bad patents have on public and consumer interests. So far, the project has killed one bogus patent and requested the reexamination of two others.

For the full reexamination request:
http://www.eff.org/patent/wanted/ideaflood/reexam/ReqReexam_746.pdf

For more on EFF's Patent Busting Project:
http://www.eff.org/patent

Contacts:

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Rick Mc Leod
Klarquist Sparkman, LLP
rick.mcleod@klarquist.com

Related Issues:
August 15, 2007

NSA Surveillance Comes Under Fire Today in Appeals Court Battle

San Francisco - In a packed San Francisco courtroom today, the Electronic Frontier Foundation (EFF) urged the 9th U.S. Circuit Court of Appeals to allow AT&ampT customers to continue to fight against illegal spying on their telephone and Internet communications.

EFF is representing the plaintiffs in Hepting v. AT&ampT, a class-action lawsuit brought by AT&ampT customers accusing the giant telco of violating their rights by illegally assisting the National Security Agency in domestic surveillance. The U.S. government is fighting to get the class-action lawsuit thrown out of court, contending that the litigation jeopardizes state secrets.

"The courts cannot permit the government to evade responsibility for unconstitutional activities with thin claims of 'state secrets.' Without judicial review, there is no way to stop abuses of power," said EFF Legal Director Cindy Cohn. "The courts are well equipped to protect state secrets while determining whether the spying is illegal and if so, to put a stop to it."

"In trying to shut down this case, the government is hoping to avoid accountability for spying on millions of AT&ampT customers," said EFF Staff Attorney Kevin Bankston. "Our system of checks and balances is supposed to thwart abuses of power. The White House is trying to wiggle out of those checks by taking the courts out of the picture."

Also Wednesday, the court heard arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the federal agents illegally wiretapped calls between the charity and its lawyers. The government also wants this case dismissed on state secrets grounds.

"The President is trying to hide behind a veil of false secrecy to evade a judicial determination that he broke the law. We're asking the court to see through that ploy," said Jon B. Eisenberg of Eisenberg and Hancock, LLP, attorney for the Al-Haramain plaintiffs.

C-SPAN television recorded today's hearing and said it would air later in the day.

The appeals court did not make a ruling Wednesday. The decision will be released at a later date.

Contacts:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Jon B. Eisenberg
Attorney for the Al-Haramain plaintiffs
Eisenberg and Hancock, LLP
jon@eandhlaw.com

Ashlee Albies
Attorney for the Al-Haramain plaintiffs
ashlee@albieslaw.com

Related Issues:
August 9, 2007

Government Aims to Block Accountability for Illegal Spying on Americans

San Francisco - In the wake of Congress approving a dramatic expansion of U.S. warrantless wiretapping powers, the 9th U.S. Circuit Court of Appeals will hear arguments on the future of two critical lawsuits over illegal surveillance of Americans. The hearing is set for August 15, at 2 p.m. in San Francisco.

The government is fighting to get the cases thrown out of court, contending that the litigation jeopardizes state secrets. The Electronic Frontier Foundation (EFF) is representing the plaintiffs in Hepting v. AT&ampT, which accuses the telecom giant of collaborating with the National Security Agency (NSA) in illegal electronic surveillance of millions of AT&ampT's customers. The court will also hear the arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the government illegally wiretapped calls between the charity and its lawyers.

"At issue here is whether the courts have any meaningful role to play in protecting Americans' privacy from Executive branch abuses of its surveillance powers," said EFF Legal Director Cindy Cohn. "If the claim of 'state secrets' is allowed to shut down litigation, then the courts will never be able to exercise their Constitutional duty to hold the White House accountable for illegal and even unconstitutional abuses of power."

The court has scheduled one hour of arguments for Hepting v. AT&ampT, and 40 minutes for Al-Haramain Islamic Foundation v. Bush. Because of the large number of attendees expected at Wednesday's hearing, the court will provide an overflow room with audio and video of the proceedings for spectators who cannot get a seat in the courtroom itself.

For more information about attending the hearing, contact press@eff.org.

WHAT:
Hepting v. AT&ampT
Al-Haramain Islamic Foundation v. Bush

WHEN:
2 p.m.
Wednesday, August 15

WHERE:
9th U.S. Circuit Court of Appeals
Courtroom 1, 3rd Floor
95 Seventh Street
San Francisco, CA 94103

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att

Contacts:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Lisa Jaskol
Attorney for the Al-Haramain plaintiffs
ljaskol@earthlink.net

Related Issues:
August 6, 2007

Record Industry Takes Aim at Right of 'First Sale'

San Francisco - An eBay seller is taking on Universal Music Group (UMG) in court after the record industry giant targeted his online music sales with false claims of copyright infringement.

The Electronic Frontier Foundation (EFF) and the San Francisco law firm of Keker &amp Van Nest LLP are representing Troy Augusto, whose online auctions included sales of promotional CDs distributed by Universal. Augusto does business on eBay under the name Roast Beast Music and specializes in sales of rare and collectible music.

Copyright law's "first sale" doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal demanded that eBay take down Augusto's auctions, claiming that CDs marked as "promotional use only" remain the property of Universal and thus can never be resold.

"When a consumer buys a CD, he gets certain rights, including the right to resell it. Universal is mistaken if it thinks that it can trump these rights simply by putting a label on a CD," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "Universal is trying to unilaterally rewrite copyright law to the detriment of Augusto's legitimate business and the public. Unless this effort is blocked, it could jeopardize not only sales of used CDs, but also libraries, used bookstores, and businesses that rent movies and video games."

In May, Universal filed a copyright infringement lawsuit against Augusto. Today, EFF filed papers with the federal court in Los Angeles answering Universal's claims and counter-suing the company for sending bogus "takedown notices" to eBay that resulted in the unwarranted suspension of Augusto's auctions.

This is not the first instance of Universal and its affiliated companies abusing copyright law. Last month, EFF filed suit against Universal Music Publishing Group on behalf of a mom who had a home video yanked from YouTube because a snippet of a Prince song could be heard in the background. In May, UMG made baseless copyright complaints about a video podcast by political blogger Michelle Malkin.

EFF has also fought other efforts to override the first sale doctrine, arguing in 2004 that Lexmark should not be permitted to use a "label license" to prohibit the resale of laser printer toner cartridges.

For the answer and counterclaim:
http://www.eff.org/legal/cases/umg_v_augusto/20070806_augusto_answer.pdf

For more on this case:
http://www.eff.org/legal/cases/umg_v_augusto

Contacts:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
July 24, 2007

Home Video of Dancing Toddler Yanked From YouTube After Bogus Claim

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against Universal Music Publishing Group (UMPG), asking a federal court to protect the fair use and free speech rights of a mother who posted a short video of her toddler son dancing to a Prince song on the Internet.

Stephanie Lenz's 29-second recording shows her son bouncing along to the Prince song "Let's Go Crazy," which is heard playing in the background. Lenz uploaded the home video to YouTube in February to share it with her family and friends.

But last month, YouTube informed Lenz that it had removed the video from its website after Universal claimed that the recording infringed a copyright controlled by the music company. Under federal copyright law, a mere allegation of copyright infringement can result in the removal of content from the Internet.

"I was really surprised and angry when I learned my video was removed," said Lenz. "Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends."

"Universal's takedown notice doesn't even pass the laugh test," said EFF Staff Attorney Corynne McSherry. "Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video."

Last May, UMPG's parent company, Universal Music Group, sent a baseless copyright takedown demand to YouTube for a video podcast by political blogger Michelle Malkin. That video was quickly reposted after Malkin fought back.

"Copyright abuse can shut down online artists, political analysts, or -- as in this case -- ordinary families who simply want to share snippets of their day-to-day lives," said EFF Staff Attorney Marcia Hofmann. "Universal must stop making groundless infringement claims that trample on fair use and free speech."

The lawsuit asks for a declaratory judgment that Lenz's home video does not infringe any Universal copyright, as well as damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video.

This lawsuit is part of EFF's ongoing work to protect online free speech in the face of bogus copyright claims. EFF is currently working with Stanford's Fair Use Project to develop a set of "best practices" for proper takedowns under the Digital Millennium Copyright Act.

For the video (since reposted):
http://www.youtube.com/watch?v=N1KfJHFWlhQ

For the full complaint:
http://www.eff.org/legal/cases/lenz_v_universal/lenz_complaint_final.pdf

For more on DMCA abuse and free speech:
http://www.eff.org/IP/freespeech/

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Related Issues:
July 23, 2007

Justice Department Withholds Records on Electronic Surveillance

Washington, D.C. - On Thursday, July 26, at 11 a.m., the Electronic Frontier Foundation (EFF) will argue for the release of court orders that supposedly authorize the government's highly controversial electronic domestic surveillance program that intercepts and analyzes millions of Americans' communications.

The White House first acknowledged the surveillance program's existence in 2005, claiming that it could be conducted without warrants or judicial authorization of any kind. But in January of this year, Attorney General Alberto Gonzales announced that the Foreign Intelligence Surveillance Court (FISC) had authorized collection of some communications and that the surveillance program would now operate under its approval. EFF filed a Freedom of Information Act (FOIA) request with Department of Justice (DOJ) for the FISC orders and other records concerning the purported changes in the program, but when the DOJ did not comply, EFF filed suit in federal court.

Thursday's hearing, before Chief Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia, will include oral arguments from both EFF and the DOJ.

WHAT:
EFF v. Department of Justice

WHEN:
11 a.m.
Thursday, July 26

WHERE:
United States District Court for the District of Columbia
Courtroom 25A
333 Constitution Avenue, N.W.
Washington, D.C. 20001

For more on EFF's lawsuit:
http://www.eff.org/flag/07403TFH

Contact:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
July 16, 2007

EFF Urges Appeals Court to Protect Innovation

San Francisco - The Electronic Frontier Foundation (EFF) has filed a brief urging the 9th U.S. Circuit Court of Appeals to reconsider a recent ruling that endangers features like search customization and user feedback on interactive web services.

The ruling came in a housing discrimination lawsuit against Roommate.com, which runs Internet forum where users can search for potential roommates. A three-judge panel held that Roommate.com could be held liable for the activity of its users because it "suggested, encouraged, or solicited" and then sorted and categorized content that may have violated fair housing law. But this reasoning threatens both current and future Internet innovators with potentially insurmountable liability problems -- impacting everything from search engine functionality to the ability to tag content on media sharing sites such as YouTube and Flickr -- and is directly contrary to federal law. As EFF argued Friday in its amicus brief in support of appeal, Roommate.com is immune to liability for its users' activities under Section 230 of the Communications Decency Act, which specifically protects hosts of interactive computer services.

"Section 230 of the Communications Decency Act was passed specifically to help the Internet continue to grow without being tied down by regulation," said EFF Staff Attorney Matt Zimmerman. "If service providers have to worry about potentially crushing liability, it will strongly discourage the development of new tools for online users. In fact, many of the tools we use already would be impacted by this ruling, potentially crippling innovations in search and customization."

Search engines, for example, are designed to categorize and sort content, features potentially at risk under the Ninth Circuit's ruling. Sites that solicit user feedback and opinions and allow searching by user ranking could also run afoul of the new ruling.

"Courts across the country have recognized the critical role that Section 230 plays in Internet innovation," said Zimmerman. "The 9th Circuit should take this appeal and clarify that its strong protections remain in full force."

For the full amicus brief:
http://www.eff.org/legal/cases/roomate.com/EFFroommateamicus.pdf

For more on this case:
http://www.eff.org/legal/cases/roommate.com

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

July 12, 2007

Friday Hearing to Finalize Sanctions, Revote in Contested Election

Oakland, Calif. - On Friday, July 13, at 9:30 a.m., a California judge will rule on sanctions against Alameda County for botching its response to a contested race conducted on Diebold electronic voting machines. In a tentative ruling issued Thursday, Judge Winifred Y. Smith said that the election results in the race were "nullified" and ordered a revote.

Americans for Safe Access and voters in the city of Berkeley brought a legal challenge seeking a recount after Measure R, an initiative addressing the operation of medical marijuana dispensaries, lost by fewer than 200 votes in the 2004 election. While the lawsuit was ongoing, election officials returned the voting machines to supplier Diebold Election Systems, and 96% of the election data was destroyed. The Electronic Frontier Foundation (EFF) helped analyze the remaining data, but too many questions remained.

"Without examining the redundant data, audit logs, and chain-of-custody records, no one can confirm whether any of the reported malfunctions were ever resolved or whether vote data was manipulated or lost," said EFF Staff Attorney Matt Zimmerman. "As a result, no one can ever confirm whether the vote result announced by the county was correct."

Smith's tentative ruling orders the county to place Measure R on the ballot in the next general election, as well as to pay the costs for the incomplete recount. That ruling is likely to be finalized after Friday's hearing.

What:
Americans for Safe Access vs. County of Alameda

When:
9:30 a.m.
Friday, July 13, 2007

Where:
Wiley Manuel Courthouse
Department 114
661 Washington Street
Oakland, CA

Contacts:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Gregory G. Luke
Attorney
Strumwasser &amp Woocher LLP
gluke@strumwooch.com

Rebecca Saltzman
Chief of Staff
Americans for Safe Access
rebecca@safeaccessnow.org

Caleb Dardick
CDA Strategies
caleb@cdastrategies.com

Related Issues:
July 10, 2007

EFF Lawsuit Uncovers History of Surveillance Mistakes

Washington, D.C. - Documents obtained by the Electronic Frontier Foundation (EFF) show years of chronic problems with the Federal Bureau of Investigation's use of National Security Letters (NSLs) to collect Americans' personal information and that Attorney General Alberto Gonzales has long been aware of these problems.

The documents were disclosed after EFF sued the government under the Freedom of Information Act (FOIA) earlier this year for records related to a scathing Justice Department critique of FBI NSL activity. The records detail more than 40 instances of improper, unauthorized collection of information about individuals, including unlawful access to phone records and email. The records show that Gonzales himself was sent several of these problem reports, including one less than a week before he told a congressional committee that no civil liberties abuses have resulted from the USA PATRIOT Act. He also voiced surprise when the Justice Department report on NSL misuse was made public earlier this year.

"These chronic privacy problems have long been known within the Justice Department but still were kept secret from those who really needed to know -- members of the American public, including those who were surveilled," said EFF Staff Attorney Marcia Hofmann. "The FBI can't be trusted to police its own agents. It's time for Congress to provide oversight to protect American citizens."

The FBI's use of NSLs was expanded under the USA PATRIOT Act in 2001, allowing federal agents to gather private records about anyone's domestic phone calls, emails, and financial transactions without any court approval -- as long as an FBI agent claims that the information could be related to a terrorism or espionage investigation. EFF submitted a FOIA request about the reported misuse of NSLs in March, and when no documents were forthcoming, EFF sued the FBI for their immediate release. Last month, a judge held that the FBI was required to release records related to the inspector general's report beginning on July 5, with more documents to be disclosed every 30 days. In all, 1138 pages of NSL records were released to EFF late last week in the first batch of documents complying with the court's order.

"This is by no means the whole story on NSL abuse," said EFF Senior Counsel David Sobel. "We're looking forward to receiving the rest of the documents. Americans deserve the whole story on the FBI's deeply flawed program to issue NSLs."

For the complete FBI documents and more analysis:
http://www.eff.org/flag/07656JDB/

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
July 6, 2007

Innocent Target of File-Sharing Lawsuit Racked Up Legal Fees Fighting Baseless Charges

Seattle - The Recording Industry Association of America (RIAA) should pay for a single mom's two-year legal ordeal fighting a baseless file-sharing lawsuit, the Electronic Frontier Foundation (EFF) told Washington state court in an amicus brief filed Thursday.

The nightmare began for Dawnell Leadbetter in January of 2005, when she received a letter from the RIAA that accused her of illegally downloading copyrighted music and claiming she owed hundreds of thousands of dollars. Leadbetter contacted the RIAA to deny the baseless claims, and refused to pay any settlement monies. In response, the RIAA sued Leadbetter, and Leadbetter hired an attorney to fight the charges. After months of legal wrangling, the RIAA finally dropped the case in December of 2006. But in the meantime, Leadbetter had incurred significant attorney's fees.

"Ms. Leadbetter isn't the only innocent Internet user that has been ensnared by the RIAA's litigation dragnet. But she is one of the few who have fought back, resisting RIAA pressure to pay settlement monies for something she did not do," said EFF Staff Attorney Jason Schultz. "The RIAA's settlement offers are usually less that what it would cost to defend yourself, so it's a big commitment to hire a lawyer to clear your name. Reimbursing Ms. Leadbetter's attorney's fees could encourage other innocent lawsuit targets to stand up for themselves."

Since 2003, the RIAA has sued over 20,000 people for allegedly sharing music over the Internet. The industry uses questionable investigative methods tactics to find its targets, and then often employs erroneous legal theories in its quest for settlement monies. In Ms. Leadbetter's case, the suit against her included accusations of "secondary liability" -- putting her on the hook for anything that happened on her Internet account, whether she knew about it or not.

"The RIAA knows that this legal theory is wrong. But if innocent victims are too scared to hire an attorney and fight back, the public could suffer under the misconception that these bogus theories are legitimate," Schultz said. "Awarding attorney's fees to Ms. Leadbetter helps protect everyone's rights under copyright law."

The amicus brief was filed in U.S. District Court in Seattle in conjunction with attorney Derek Newman of Newman &amp Newman LLP.

For the full amicus brief:
http://eff.org/legal/cases/interscope_v_leadbetter

For more on the RIAA lawsuit campaign:
http://www.eff.org/IP/P2P/?f=riaa-v-thepeople.html

Contact:

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Related Issues:
June 25, 2007

Public Interest Groups Urge Court to Block Radical Expansion of Discovery Rules

San Francisco - The Electronic Frontier Foundation (EFF) and Center for Democracy and Technology (CDT) urged a California court Friday to overturn a dangerous ruling that would require an Internet search engine to create and store logs of its users' activities as part of electronic discovery obligations in a civil lawsuit.

The ruling came in a copyright infringement lawsuit filed by motion picture studios against TorrentSpy, a popular search engine that indexes materials made publicly available via the Bit Torrent file sharing protocol. TorrentSpy has never logged its visitors' Internet Protocol (IP) addresses. Notwithstanding this explicit privacy policy, a federal magistrate judge has now ordered TorrentSpy to activate logging and turn the logged data over to the studios.

"This unprecedented ruling has implications well beyond the file sharing context," said EFF Staff Attorney Corynne McSherry. "Giving litigants the power to rewrite their opponent's privacy policies poses a risk to all Internet users."

The magistrate judge incorrectly reasoned that, because the IP addresses exist in the Random Access Memory (RAM) of TorrentSpy's webservers, they are "electronically stored information" that must be collected and turned over to the studios under the rules of federal discovery.

This decision could reach every function carried out by a digital device. Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM.

"In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information," said EFF Senior Staff Attorney Fred von Lohmann. "There is no reason why the rules should be different simply because a company uses digital technologies."

The decision also threatens to radically increase the burdens that companies face in federal lawsuits, potentially forcing them to create and store an avalanche of data, including computer server logs, digital telephone conversations, and drafts of documents never saved or sent.

The magistrate judge in the case has stayed her order while TorrentSpy appeals the ruling. The case is Columbia Pictures Industries v. Bunnell, No. 06-01093 FMC, pending in the U.S. District Court for the Central District of California before Judge Florence-Marie Cooper.

For the full amicus brief:
http://www.eff.org/legal/cases/torrentspy/EFF_CDT_amicus.pdf

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
June 21, 2007

Vote to Authorize Subpoenas Sets Stage for Showdown Over Illegal Surveillance

San Francisco - The Senate Judiciary Committee voted today to authorize subpoenas related to the National Security Agency (NSA)'s domestic spying program, setting the stage for a Congressional showdown over the surveillance of millions of ordinary Americans. The subpoenas demand certain legal documents that the Administration has withheld despite Congress' repeated requests.

"This subpoena authorization is a critical first step toward uncovering the full extent of the NSA's illegal spying and the role that telecommunications companies like AT&ampT played in it," said EFF Staff Attorney Kevin Bankston. "Considering that it's been almost six years since the NSA started spying on Americans without warrants and over a year since that spying was revealed publicly, these subpoenas are long overdue. It's high time for Congress to get to the bottom of this mess."

The Electronic Frontier Foundation (EFF) is suing AT&ampT for illegally assisting in the NSA spying. The government has asked the 9th U.S. Circuit Court of Appeals to dismiss EFF's case, claiming that the lawsuit could expose state secrets.

"Our case against AT&ampT includes evidence from a former employee that points to a massive spying program impacting millions of people -- a program far broader than the government has admitted to," said Bankston. "Americans deserve to know the truth about the NSA program."

For more on the class-action lawsuit against AT&ampT:
http://www.eff.org/legal/cases/att/

Contacts:

Derek Slater
Acting Media Coordinator
Electronic Frontier Foundation
derek@eff.org

June 19, 2007

EFF Urges Court to Protect Privacy at Border Crossings

San Francisco - The government should not search travelers' computers at border crossings without suspicion, said the Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) in an amicus brief filed today in the 9th U.S. Circuit Court of Appeals.

Over the past several years, U.S. customs agents have been searching and even seizing travelers' laptops when they are entering or leaving the country if the traveler fits a profile, appears to be on a government watch list, or is chosen for a random inspection. The Supreme Court has ruled that customs and border agents may perform "routine" searches at the border without a warrant or even reasonable suspicion, but EFF and ACTE argue that inspections of computers are far more invasive than flipping through a briefcase.

"Our laptop computers contain vast amounts of personal information about our lives. You may do your banking on your computer, for example, or send email to your doctor about health concerns," said EFF Senior Staff Attorney Lee Tien. "Travelers should not be subjected to unconstitutionally invasive searches of their laptops and other electronic devices just because they are crossing the border."

The case in front of the 9th Circuit, United States v. Arnold, arose out of a suspicionless "profile" search of Michael Timothy Arnold's computer at Los Angeles International Airport. The search uncovered evidence of alleged child pornography, and Mr. Arnold moved to suppress the evidence as the product of an unconstitutional search. The district court ruled that the agents lacked a reasonable basis to suspect Mr. Arnold of having committed a crime, and the government appealed the ruling. Mr. Arnold is represented by the Pasadena law firm of Kaye, McLane &amp Bednarski, LLP. The EFF-ACTE amicus brief was prepared by Arent Fox LLP.

For the full amicus brief:
http://www.eff.org/legal/cases/US_v_arnold/arnold_amicus.pdf

Contact:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Related Issues:
June 18, 2007

Landmark Ruling Gives Email Same Constitutional Protections as Phone Calls

San Francisco - The government must have a search warrant before it can secretly seize and search emails stored by email service providers, according to a landmark ruling Monday in the 6th U.S. Circuit Court of Appeals. The court found that email users have the same reasonable expectation of privacy in their stored email as they do in their telephone calls -- the first circuit court ever to make that finding.

Over the last 20 years, the government has routinely used the federal Stored Communications Act (SCA) to secretly obtain stored email from email service providers without a warrant. But today's ruling -- closely following the reasoning in an amicus brief filed the by the Electronic Frontier Foundation (EFF) and other civil liberties groups -- found that the SCA violates the Fourth Amendment.

"Email users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls," said EFF Staff Attorney Kevin Bankston. "The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can't secretly seize your emails without a warrant."

Warshak v. United States was brought in the Southern District of Ohio federal court by Steven Warshak to stop the government's repeated secret searches and seizures of his stored email using the SCA. The district court ruled that the government cannot use the SCA to obtain stored email without a warrant or prior notice to the email account holder, but the government appealed that ruling to the 6th Circuit. EFF served as an amicus in the case, joined by the American Civil Liberties Union and the Center for Democracy &amp Technology. Law professors Susan Freiwald and Patricia Bellia also submitted an amicus brief, and the case was successfully argued at the 6th Circuit by Warshak's counsel Martin Weinberg.

For the full ruling in Warshak v. United States:
http://eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf

For EFF's resources on the case, including its amicus brief:
http://www.eff.org/legal/cases/warshak_v_usa

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Related Issues:
June 15, 2007

New Evidence of Misuse Prompts Immediate Response in EFF FOIA Lawsuit

Washington, D.C. - A judge ordered the FBI today to finally release agency records about its abuse of National Security Letters (NSLs) to collect Americans' personal information. The ruling came just a day after the Electronic Frontier Foundation (EFF) urged the judge to immediately respond in its lawsuit over agency delays.

EFF sued the FBI in April for failing to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs as revealed in a Justice Department report. This week, more evidence of abuse was uncovered by the Washington Post, and EFF urged the judge Thursday to force the FBI to stop stalling the release of its records on the deeply flawed program.

"The reports we've seen so far about NSL abuse are just the tip of the iceberg," said EFF Staff Attorney Marcia Hofmann. "FBI officials told the Washington Post that there have likely been several thousand total instances of misuse. Americans deserve answers about this scandal and how the FBI has abused its power to spy on ordinary citizens."

Under 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. Without a judge's oversight, the law is ripe for the abuse that has been uncovered in these recent reports.

"The law itself is the source of the problem. It's time for Congress to repeal these expanded NSL powers and protect Americans from this abuse of authority," said Hofmann.

The judge's order requires the FBI to process 2500 pages of NSL-related records by July 5, and then 2500 pages every 30 days thereafter.

For the judge's order:
http://www.eff.org/flag/nsl/bates_order.pdf

For EFF's supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
June 14, 2007

More Questions About Misuse of Authority at the Justice Department

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged a judge Thursday to force the FBI to finally release records about its now documented abuse of National Security Letters (NSLs) to collect Americans' personal information. EFF's filing comes as an internal FBI audit revealed that the bureau's misuse of surveillance authority has been more widespread then previously thought.

EFF sued the FBI in April after the agency failed to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs. EFF's FOIA request came after an initial Justice Department report indicated extensive abuse of the powerful NSL tools. Now, the Washington Post has reported that a new audit identified more than 1000 potential violations made while agents collected data about domestic phone calls, emails and financial transactions of thousands of Americans. FBI officials told Post that there have likely been several thousand instances of abuse in total. This week, the FBI also released new guidelines for the use of NSLs, but that won't fix the core problem -- a law that's ripe for abuse.

"Under the PATRIOT Act, the Bureau can use NSLs to get private records about anybody without any court approval, as long as it claims the information could be relevant to a terrorism or espionage investigation," said Marcia Hofmann, EFF Staff Attorney. "We have heard again and again about how the FBI has misused this new power to overreach into the lives of ordinary Americans. It's time for someone other than the Justice Department to assess the documented problems, and long past time for Congress to fix the mistake it made in the PATRIOT Act, including repealing the expanded NSL powers it gave the FBI."

EFF's supplemental memo to the court, filed Thursday, asked the judge to rule on a request for a preliminary injunction that would force the FBI to begin releasing information about NSL abuse to the public immediately.

For EFF's supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html


Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
June 12, 2007

More Bogus Copyright Claims in Uri Geller's Frivolous Lawsuit

San Francisco - The Electronic Frontier Foundation (EFF) urged a judge Monday to dismiss a frivolous lawsuit filed by Uri Geller -- the "paranormalist" famous for seemingly bending spoons with his mind -- because of its blatant attempt to silence critic Brian Sapient with bogus copyright claims.

Geller's quest to shut down Sapient's criticism started when Sapient uploaded video to YouTube challenging Geller's assertions about his mental powers. The 14-minute segment came from a NOVA television program, but Geller and his corporation Explorologist Ltd. claimed the video infringed its own copyrights and had the video removed from YouTube. Sapient filed a counter-notice under the Digital Millennium Copyright Act (DMCA), had the video restored to YouTube, and sued Geller for misrepresentation.

As Sapient was challenging Geller's meritless claims, Explorologist filed a separate lawsuit against Sapient. The suit includes more bogus charges, with many of them based on the assertion that Explorologist has the copyright to eight seconds of the introductory footage in the NOVA video. EFF's motion to dismiss the case points out the numerous holes in this claim, arguing that even if it were true, eight seconds is a classic fair use -- especially given the critical purposes of the use. The brief also argues that Section 230 of the Communications Decency Act protects Sapient from infringement claims and other charges in Explorologist's complaint, immunizing Sapient as the publisher of third-party content.

"Copyright law is meant to protect creative artists, not hypersensitive public figures who don't like criticism," said EFF Senior Staff Attorney Jason Schultz. "The First Amendment does not allow Geller or his corporation to silence legitimate discussion of his abilities."

Meanwhile, Sapient's lawsuit against Geller is still pending before the Northern District of California. The suit asks for damages due to Geller's DMCA violation, a declaratory judgment that the NOVA video does not infringe Geller's copyrights, and Geller to be restrained from bringing any further legal action against Sapient in connection to the clip.

For the full motion to dismiss Geller's suit:
http://eff.org/legal/cases/sapient_v_geller/sapient_motiontodismiss.pdf

For more on Sapient v. Geller:
http://eff.org/legal/cases/sapient_v_geller

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Related Issues:
June 12, 2007

Whistleblower Declaration and Other Key Documents Released to Public

San Francisco - More documents detailing secret government surveillance of AT&ampT's Internet traffic have been released to the public as part of the Electronic Frontier Foundation's (EFF's) class-action lawsuit against the telecom giant.

Some of the unsealed information was previously made public in redacted form. But after negotiations with AT&ampT, EFF has filed newly unredacted documents describing a secret, secure room in AT&ampT's facilities that gave the National Security Agency (NSA) direct access to customers' emails and other Internet communications. These include several internal AT&ampT documents that have long been available on media websites, EFF's legal arguments to the 9th Circuit, and the full declarations of whistleblower Mark Klein and of J. Scott Marcus, the former Senior Advisor for Internet Technology to the Federal Communications Commission, who bolsters and explains EFF's evidence.

"This is critical evidence supporting our claim that AT&ampT is cooperating with the NSA in the illegal dragnet surveillance of millions of ordinary Americans," said EFF Legal Director Cindy Cohn. "This surveillance is under debate in Congress and across the nation, as well as in the courts. The public has a right to see these important documents, the declarations from our witnesses, and our legal arguments, and we are very pleased to release them."

EFF filed the class-action suit against AT&ampT last year, accusing the telecom giant of illegally assisting in the NSA's spying on millions of ordinary Americans. The lower court allowed the case to proceed and the government has now asked the 9th U.S. Circuit Court of Appeals to dismiss the case, claiming that the lawsuit could expose state secrets. EFF's newly released brief in response outlines how the case should go forward respecting both liberty and security.

"The District Court rejected the government's attempt to sweep this case under the rug," said EFF Senior Staff Attorney Kurt Opsahl. "This country has a long tradition of open court proceedings, and we're pleased that as we present our case to the Court of Appeals, the millions of affected AT&ampT customers will be able to see our arguments and evidence and judge for themselves."

Oral arguments in the 9th Circuit appeal are set for the week of August 13.

For the unredacted Klein declaration:
http://eff.org/legal/cases/att/SER_klein_decl.pdf

For the internal documents:
http://eff.org/legal/cases/att/SER_klein_exhibits.pdf

For the unredacted Marcus declaration:
http://eff.org/legal/cases/att/SER_marcus_decl.pdf

For EFF's 9th Circuit brief:
http://eff.org/legal/cases/att/9thanswerbrief.pdf

For more on the class-action lawsuit against AT&ampT:
http://www.eff.org/legal/cases/att/

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Related Issues:
June 11, 2007

EFF Weighs in On Behalf of Innovators in Remote Computing

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups, trade associations, and businesses urged a federal appeals court Friday to overturn a damaging lower court ruling that puts companies that provide remote computing technologies at risk of copyright infringement liability.

The case involves a remote "digital video recorder" (DVR) developed by Cablevision -- the fifth largest cable television provider in the U.S. -- that allows customers to record programs provided through their Cablevision subscription for later viewing, much like many other DVR offerings. However, instead of storing the recorded programs using a DVR at home, Cablevision's remote DVR stores the recorded programs on equipment located on Cablevision's premises. Twentieth Century Fox, the Cartoon Network, and other television networks filed suit, and a district court in New York ruled against Cablevision, reasoning that Cablevision, not its customers, was making the copies. That ruling has now been appealed by Cablevision.

"The Supreme Court has already ruled that consumers have a fair use right to time-shift TV shows," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "It should not make a difference whether the copies are stored inside their set-top boxes or back at Cablevision headquarters."

In an amicus brief filed the with 2nd U.S. Circuit Court of Appeals Friday, EFF and the coalition argued not only that the lower court ruling is at odds with copyright law, but also that it poses a threat to innovation in remote computing services more generally. Consumers often have remote access to digital services that provide better performance more conveniently than devices they could buy for their home, but this decision opens the door to more lawsuits that could shut these services down.

"Both consumers and the enterprise are increasingly enjoying the benefits of remote computing capabilities, relying on services like Amazon's EC2, Google Apps, and Apple's .Mac, for processing power, applications, and data hosting," said von Lohmann. "It can't be the case that these companies are automatically liable for every copyright infringement committed by every user, whether they know about it or not."

For the full amicus brief filed in the case:
http://eff.org/legal/cases/studios_v_cablevision/CDF_et_al_amicus.pdf

For more on protecting technology innovations:
http://www.eff.org/innovate

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
May 23, 2007

Organizations Will Jointly Lobby Governments and International Organizations

Novell to Support EFF 'Patent Busting' Initiative

San Francisco (Open Source Business Conference) - Novell and the Electronic Frontier Foundation (EFF) today announced they are teaming up to work on reforms to software patents worldwide.

"It is increasingly obvious that software patents are not a meaningful measure of innovation," said Jeff Jaffe, executive vice president and chief technology officer at Novell. "As a long-time innovator in the industry and a holder of many significant patents, we understand the rationale behind the patent system in general. But we believe that software patent system reform is necessary to promote software innovation going forward."

Novell and EFF will work to lobby governments and national and international organizations to develop legislation and policies around patents designed to promote innovation. A key area of focus will be the World Intellectual Property Organization (WIPO), where member governments of the United Nations meet to coordinate positions on intellectual property issues. Given the ease with which software ideas and code cross borders, a global approach to the issue is required.

In addition, Novell will contribute significant resources to EFF's ongoing "Patent Busting" project. Launched in 2004, the project is designed to attack patents that impose particularly heavy burdens on software developers and Internet users by identifying prior art that can be used to invalidate those patents and by pursuing invalidation of those patents through re-examination efforts.

"EFF has long been at the forefront in addressing the key challenges of the digital age, including worldwide intellectual property issues," said EFF Executive Director Shari Steele. "The support of Novell -- a company founded on the proprietary software development model but now strongly embracing the open source approach -- will be a great boon to our efforts to rid the industry of innovation-killing patents. We hope Novell's example encourages other software vendors to join the effort."

An early innovator in networking, word processing and messaging technologies, Novell holds more than 500 patents, many of which are fundamental to technologies in the market today. Having shifted its business to focus more on open source and open standards-based solutions, Novell recognizes the new model for innovation is open source, and the existing patent system is detrimental to open source development. Novell has already taken several steps to promote the use of patents to protect open source, including a 2004 pledge to use its own patents to defend against patent attacks on open source, and the contribution of patents and significant financial resources to Open Invention Network, an intellectual property company Novell co-founded in 2005 to promote Linux by using patents to create a collaborative environment.

"Today's announcement is a logical next step for Novell in its efforts to make patents a non-issue for the software community," said Nat Friedman, chief strategy and technology officer for open source at Novell. "Software patents hobble open standards and interoperability, impede innovation and progress, threaten the development of free and open source software, and have a chilling effect on software development. Our partnership with EFF is about creating a world where software developers and users do not to have to worry about patents."

For more on EFF's Patent Busting project:
http://www.eff.org/patent

Contacts:

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

Bruce Lowry
Director, Global Public Relations
Novell, Inc.
blowry@novell.com

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

About Novell, Inc.:

Novell, Inc. (Nasdaq: NOVL) delivers infrastructure software for the Open Enterprise. We are a leader in enterprise-wide operating systems based on Linux and open source and the security and systems management services required to operate mixed IT environments. We help our customers minimize cost, complexity and risk, allowing them to focus on innovation and growth. For more information, visit http://www.novell.com.

Novell is a registered trademark of Novell, Inc. in the United States and other countries. Linux is a registered trademark of Linus Torvalds. All other third-party trademarks are the property of their respective owners.

Related Issues:
May 22, 2007

Agreement Ends Copyright Threats Over Non-Commercial Use of Popular Dance

San Francisco - The man who claims to have created "The Electric Slide" has agreed to call off his online video takedown campaign and to stop threatening people using the popular line dance for non-commercial purposes. Instead, he's making the dance available for all noncommercial use.

The agreement settles a lawsuit filed by the Electronic Frontier Foundation (EFF) on behalf of videographer Kyle Machulis, who posted a concert video to YouTube that included a ten-second segment of audience members attempting to do the Electric Slide. Richard Silver sent a takedown demand to YouTube under the Digital Millennium Copyright Act (DMCA), alleging he owned the copyright to the Electric Slide and that the video infringed his rights. Machulis's video was removed from the site.

"Mr. Silver's misuse of the DMCA interfered with our client's free speech rights," said EFF Staff Attorney Corynne McSherry. "New technologies have opened multiple avenues for artists and their audiences to create, share and comment on new works. We cannot let absurd copyright claims squash this extraordinary growth."

Under the terms of the settlement, Silver will license the Electric Slide under a Creative Commons license -- allowing the performance, display, reproduction or distribution of any recorded performance of the dance in any medium for non-commercial purposes. Silver has agreed to post these terms on any of his current or future websites that mention the Electric Slide so that users are aware of the Creative Commons license.

"Often, 'all rights reserved' copyright is too restrictive and prevents people from being able to legally use and build upon other people's creativity in any reasonable way," said Eric Steuer, Creative Director of Creative Commons. "When that is the case, it makes sense to adopt a more flexible, 'some rights reserved' approach to copyright. We couldn't be happier that Mr. Silver is using a Creative Commons license to make the Electric Slide freely and legally available to anyone in the world to use for noncommercial purposes."

"We are pleased that Mr. Silver has stepped up and recognized fair uses of the Electric Slide," said EFF Staff Attorney Jason Schultz. "Copyright law is meant to encourage creativity. It must not be used to chill free expression."

For more on the Electric Slide lawsuit:
http://www.eff.org/legal/cases/electricslide/

For more on Creative Commons:
http://creativecommons.org/about/licenses

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Eric Steuer
Creative Director
Creative Commons
eric@creativecommons.org

Related Issues:
May 14, 2007

Online Criticism of Hip Hop Artist Akon Drew Baseless Copyright Allegations from UMG

San Francisco - Universal Music Group (UMG) has backed off of its attempt to silence nationally syndicated columnist Michelle Malkin's online criticism of one of its controversial artists after Malkin fought back with the help of the Electronic Frontier Foundation (EFF).

Earlier this month, UMG filed a baseless copyright notice regarding a recent episode of "Vent with Michelle Malkin" -- an irreverent daily video podcast produced by Malkin's conservative Internet broadcast network "Hot Air." In the video posted on YouTube, Malkin called Universal hip hop artist Akon a "misogynist," supporting her criticism with excerpts from Akon's music videos as well as onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad.

Despite Malkin's legally protected fair use of the Akon footage to support her criticism, UMG claimed that the podcast infringed its copyright. UMG submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing YouTube to pull the episode down. However, with EFF's assistance, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. As a result, the video is back up on the site, one that has become an important forum for political speech of all kinds.

"We're pleased that UMG has backed off its bogus copyright claim and stopped squelching Michelle Malkin's video criticism," said EFF Senior Staff Attorney Kurt Opsahl. "However, it remains inexcusable. UMG's misuse of federal law made the video unavailable on YouTube for a full week, denying the Hot Air podcast access to YouTube's extensive audience during a time when the controversy about Akon's behavior was all over the news."

After UMG rescinded its takedown request, YouTube briefly continued to block access to the video podcast, claiming it included a "terms of use" violation. However, after EFF contacted YouTube to discuss the alleged violation, the video was quickly returned to public view.

"My Hot Air staff and I are grateful for EFF's invaluable aid in forcing UMG to retreat," said Malkin. "Shame on any copyright holder who would attempt to use the DMCA to intimidate and silence critics. We hope YouTube and its corporate partners, like UMG, will think twice next time before yanking video commentary and criticism that clearly falls under fair use."

Reposted episode of "Vent with Michelle Malkin":
http://www.youtube.com/watch?v=YZL1IHw6ea8

More on the controversy from Michelle Malkin:
http://hotair.com/archives/2007/05/09/hot-air-eff-challenge-umg

More on intellectual property and free speech:
http://www.eff.org/IP/freespeech

Information about Hot Air:
http://hotair.com/about

Contacts:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Michelle Malkin
Founder
Hot Air Network
malkinblog1@gmail.com

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

Related Issues:
May 10, 2007

Internet Forum Shielded by Federal Law Protecting Free Speech

Washington, D.C. - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) of the National Capital Area has asked a Washington, D.C., court to dismiss claims against a nonprofit watchdog organization and its operators, arguing that federal law and the First Amendment protect them from liability in a defamation lawsuit.

DCWatch is a government watchdog organization run by Dorothy Brizill and Gary Imhoff to monitor Washington, D.C., city politics and public affairs. DCWatch's website, www.dcwatch.com, publishes articles and columns on local politics. Themail@dcwatch.com is an online newsletter and discussion forum devoted to reporting, analysis and commentary on local issues, past editions of which are archived on the DCWatch site.

In articles printed in themail@dcwatch.com, Washington journalist Jonetta Rose Barras reported that Roslyn Johnson, then Deputy Director of Programs for the D.C. Department of Parks and Recreation, had inflated her employment and salary history to secure her position. A subsequent formal investigation by the D.C. Inspector General concluded that Johnson did in fact submit an inflated resume and was improperly hired for her position. But in a lawsuit filed earlier this year, Johnson claims that these articles were defamatory, placed her in a false light, and resulted in the termination of her employment with the city. In addition to suing reporter Barras, she also sued DCWatch and its operators, claiming that their Internet publication of these articles made them responsible for their content.

EFF and the ACLU of the National Capital Area filed a motion to dismiss the lawsuit, pointing out that DCWatch and its operators are shielded by Section 230 of the Communications Decency Act, which expressly protects providers or users of interactive computer services from liability in order to encourage robust debate in online discussions. The motion also urged the court to dismiss Johnson's claims, because the First Amendment protects statements about public officials that are substantially true.

"The Internet has played host to a renaissance of political speech, facilitating discussion on issues of local, national, and international importance," said EFF Staff Attorney Marcia Hofmann. "It's important that judges resist attempts by public officials to shut down online debate just because they don't like the speech."

Courts throughout the country have recognized the critical role Section 230 plays in enabling open discourse on the Internet and have shielded website operators from liability for comments made by others.

"The case against DCWatch must be dismissed. Congress has given online publications absolute immunity for claims based on third-party articles," said EFF Senior Staff Attorney Kurt Opsahl. "An Internet intermediary should not be liable for what the speaker has said."

"This is a concept that should be expanded into all media: books, newspapers, radio and television," said Arthur Spitzer, Legal Director of the ACLU of the National Capital Area. "A speaker or writer should be responsible for his or her words. A bookstore or newsstand should not be responsible for the content of what it distributes."

For the full motion to dismiss and other legal documents:
http://www.eff.org/legal/cases/johnson_v_barras

For more on DCWatch:
http://www.dcwatch.com

For more on the ACLU of the National Capital Area:
http://www.aclu-nca.org

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Related Issues:
May 9, 2007

EFF Supports Conservative Columnist Who Criticized Controversial Hip Hop Artist Akon

San Francisco - With the legal backing of the Electronic Frontier Foundation (EFF), nationally syndicated columnist and prominent blogger Michelle Malkin has contested music giant Universal Music Group's (UMG's) improper attempt to silence her online criticism of one of its artists.

In a recent episode of "Vent with Michelle Malkin" -- an irreverent daily video podcast produced by Malkin's conservative Internet broadcast network "Hot Air" -- Malkin criticized Universal hip hop artist Akon, calling him a "misogynist" and his antics "vulgar and degrading." She supported her criticism with excerpts from Akon's music videos as well as controversial onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad. Malkin's accompanying commentary condemned both Akon's lyrics and his behavior.

On Thursday, May 3 -- after Malkin appeared on a nationally syndicated talk radio show to put pressure on Akon's sponsors -- UMG claimed the podcast infringed its copyrights and submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing online video hosting site YouTube to pull the episode down. Yesterday, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. Under the DMCA, YouTube can repost Malkin's video ten days after receiving her counter-notice.

"It is impermissible and irresponsible for copyright holders to use the DMCA as a pretext to squelch criticism," said EFF Senior Staff Attorney Kurt Opsahl. "Ms. Malkin had every right under copyright law to criticize UMG and Akon, and to use footage of Akon to emphasize her point. Criticism and commentary are not only the core of fair use, but vital to our traditions of free speech."

"We believe this is a clear attempt by UMG to hide the truth about Akon and intimidate critics," said Malkin. "The Hot Air staff and I are grateful for EFF's willingness to challenge a corporate bully wrapped in the DMCA cloak."

YouTube's message explaining the UMG takedown:
http://www.youtube.com/watch?v=YZL1IHw6ea8

"Vent" podcast (on hotair.com) that was removed from YouTube:
http://hotair.com/archives/2007/05/03/akon-story-gaining-steam

Michellemalkin.com post discussing the takedown:
http://www.michellemalkin.com/archives/007446.htm

More on intellectual property and free speech:
http://www.eff.org/IP/freespeech

Information about Hot Air:
http://hotair.com/about

Contacts:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Michelle Malkin
Founder
Hot Air Network
malkinblog1@gmail.com

Related Issues:
May 9, 2007

Uri Geller Makes Bogus Copyright Claims to Silence YouTube Critic

San Francisco - The Electronic Frontier Foundation (EFF) filed suit Tuesday against Uri Geller -- the "paranormalist" famous for seemingly bending spoons with his mind -- on behalf of a YouTube critic who was silenced by Geller's baseless copyright claims.

EFF's client, Brian Sapient, belongs to a group called the "Rational Response Squad," which is dedicated to debunking what it calls irrational beliefs. As part of their mission, Sapient and others post videos to YouTube that they say demonstrate this irrationality. One of the videos that Sapient uploaded came from a NOVA program called "Secrets of the Psychics," which challenges the performance techniques of Geller.

Despite the fact that only three seconds of the over thirteen-minute video contain footage allegedly under copyright owned by Geller's corporation Explorogist Ltd. -- a classic fair use of the material for criticism purposes -- Geller filed a takedown demand with YouTube under the Digital Millennium Copyright Act (DMCA). That violates the DMCA requirement that copyright holders only send takedown notices for infringing content.

"Uri Geller may not like it when people question his paranormal abilities. However, he is not allowed to stifle public criticism by misusing the law," said EFF Staff Attorney Marcia Hoffman. "If the publication of a video does not infringe his copyright, then he cannot block its use -- it's as simple as that."

Because of Geller's unlawful DMCA notice, Sapient's YouTube account was suspended, and his videos were not available for over two weeks. In the lawsuit filed Tuesday, EFF asks for damages due to Geller's violation of the DMCA, a declaratory judgment that the NOVA video does not infringe Geller's copyrights, and that Geller be restrained from bringing any further legal action against Sapient in connection to the clip.

"We've seen a rash of people abusing the DMCA lately, attempting to take down legitimate criticism and commentary online," said EFF Staff Attorney Jason Schultz. "To allow thin-skinned public figures like Uri Geller to abuse this system forces critics to remain silent and creates unfair hurdles for free speech to thrive online."

This lawsuit is part of EFF's ongoing work to protect online free speech in the face of bogus copyright claims. EFF is currently working with Stanford's Fair Use Project to develop a set of "best practices" for proper DMCA takedowns. At EFF's suggestion, media giant Viacom set up an email "hotline" to help users who believe their videos have been improperly ensnared in a takedown campaign.

For the full complaint against Uri Geller and Explorogist Ltd.:
http://eff.org/legal/cases/sapient_v_geller

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Brian Sapient
Rational Response Squad
infidelsapient@hotmail.com

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