On Friday, the Administration filed yet another court brief contending that the case against AT&T for its cooperation in the warrantless wiretapping program must be dismissed, for fear that the bad guys might figure out the well known fact that AT&T had indeed participated. In response to the Director of National Intelligence's ex=1345608000&en=4e8428cf3d46306c&ei=5090&partner=rssuserland&emc=rss">admission (transcript) that the companies who "were being sued" "had assisted" the wiretapping program, the Administration attempts to minimize the admission:
Today, the New York Times released a preview of Prof. Jack Goldsmith's upcoming book, The Terror Presidency: Law and Judgment Inside the Bush Administration. Now a professor at Harvard Law School, Goldsmith was previously the head of the Department of Justice's (DOJ's) Office of Legal Counsel, an office deeply involved in developing the legal theories underpinning the Administration's expansion of Executive power.
If all goes as planned, HR 811 -- the Voter Confidence and Increased Accessibility Act of 2007, introduced by New Jersey Representative Rush Holt -- will finally come to a floor vote in the House of Representatives this week, likely on Thursday or Friday. Despite speculation to the contrary, it is not at all clear whether the bill will pass or, even if it does, whether a substantively similar companion bill will then pass the Senate. Like it or not, with election officials arguing that they're running out of time to implement wholesale changes, this likely amounts to Congress's only attempt to make any serious improvements to the nation's election procedures ahead of the 2008 presidential election.
- At Rapleaf, Your Personals Are Public
A new generation of search engines scans personal data from social
- Open Government Without Shutting Doors
The draft "European Convention on Access to Official Documents" has
- Ballot Machines Malfunction in Scotland
More than 140,000 ballots were apparently spoilt in Scottish
- California Blocks RFID Implants in Workers
The State Senate votes to ban "forced tagging of humans."
In a big victory for your online privacy and civil liberties, a federal court ruled [PDF] that "National Security Letters" (NSLs) violate the Constitution.
Under the PATRIOT Act, NSLs allow the FBI to spy on Americans' telephone, Internet, and other records without any court approval and regardless of whether the target is suspected of a crime. With a single piece of paper, the FBI could force your ISP to turn over detailed information about your Internet communications, including the Web sites you've visited and the email addresses you've written to. Worse still, an NSL recipient is barred from notifying anyone else about the demand.
The president is unconstitutionally wiretapping the telephone and Internet communications of millions of ordinary Americans. Telecom giants want to block lawsuits like EFF's case against AT&T and get immunity for their illegal collaboration with the president's program.
And now Congress is threatening to let them get away with it.
Stand with EFF as we launch a new campaign to take on Congress and stop the spying. Tell the government to stop surveillance of Americans' communications without a warrant.
Defend your freedom now: www.stopthespying.org
For at least six years, President Bush has authorized the National Security Agency (NSA) to conduct dragnet surveillance on our domestic telecommunications networks, vacuuming up the private communications of millions of ordinary Americans with no warrants or other meaningful oversight.
Apple's new product announcements this week may have laid the foundation for the next round of DMCA lawsuits. It sure looks like Apple is using the DMCA to block competition, rather than stop "piracy."
First suspect: ringtones on the iPhone. Just before the Apple announcement of its new ringtone offerings (that'll be 99 extra cents, please), Ambrosia had announced iToner, a new piece of software that allows iPhone owners to use any MP3 or AAC file as a ringtone. In other words, no more need to pay Apple for the privilege.
Documents [PDF] obtained by the Electronic Frontier Foundation show that the FBI asked telecommunications companies to turn over information about people in contact with individuals the FBI was investigating, though a degree removed from any suspicious activity and presumably innocent. As Eric Lichtblau reported in the New York Times this morning:
The F.B.I. cast a much wider net in its terrorism investigations than it has previously acknowledged by relying on telecommunications companies to analyze phone-call patterns of the associates of Americans who had come under suspicion, according to newly obtained bureau records.
Tired of paying several dollars to buy ringtone versions of music you already own? When it comes to songs ripped from your CD collection or downloaded MP3s, widely-available software tools allow you to roll your own ringtones instead and put them on a variety of phones.
But what the world of unencrypted music giveth, DRM-locked media taketh away. DRM allows media vendors to restrict your fair use rights so that they can be sold back to you piecemeal as "features."
The Department of Homeland Security?s (DHS's) ADVISE has followed a familiar pattern. Just like Total Information Awareness (TIA) and CAPPS II before it, ADVISE was once touted as an essential tool in protecting national security, only to fall from grace once serious mistakes and privacy abuses were revealed. But dead programs in a National Security state never quite die ? they are often just re-shuffed and re-named.
Joy Robinson-Van Gilder is a small-town mom from Earlville, Illinois (population 1,778) who began a one-woman campaign to fight the use of biometrics in the schools and won.
In August of 2005, the public school in Earlville installed biometric equipment, allowing the school to track students by scanning their fingerprints. Use of the scans for school lunch was apparently mandatory. When Robinson-Van Gilder objected, she was told: "If they don't scan, they don't eat."
Robinson-Van Gilder and her husband Chris were outraged. Ignoring ridicule from neighbors, they brought their concerns to the administration, the school board, the local paper, and then began lobbying the Illinois state legislature. Eventually, they managed to bring some national media attention to the issue. Christian Broadcasting Network covered the story, as did EFF's Deeplinks.
The Electronic Communications Privacy Act puts strict limits on when a telecommunications provider can hand over customer data to the government. Section 2702(A)(1) prohibits disclosure of the contents of a communication, and (A)(3) forbids the release of a "record or other information pertaining to a subscriber to or customer" other than the content covered by (A)(1). Thus, sections 2702(A)(1) and (A)(3) compliment one another, and together protect all records about a communication. Absent a specific statutory exception, it is flatly illegal for the telecoms to provide customer information to the government.
So the "community of interest" requests made as part of the "exigent letters" were doubly illegal. We need a new word for this -- what do you call an illegality piled on top of another illegality? Illegal squared?
Last Tuesday, something fantastic happened. The U.S. 10th Circuit Court of Appeals gave the First Amendment some oomph in Golan v. Gonzales. The case, brought by Larry Lessig and lawyers with the Stanford Law School Center for Internet and Society, challenged section 514 of the Uruguay Round Agreements Act, or URAA, which removed thousands of books, films and musical compositions from the public domain. The 10th Circuit held that, following the Supreme Court case of Eldred v. Ashcroft, if Congress changes copyright's "traditional contours," courts must conduct a First Amendment review to ensure that those changes do not overly burden free expression in an unjustified manner.
The entertainment industry's attempts to eliminate (think DRM) and whittle away (think PERFORM Act) your fair use rights are jeopardizing more than just free speech. It also threatens the U.S. economy, as an extensive study released today by the Computer & Communications Industry Association (CCIA) demonstrates.
We've been receiving a lot of inquiries from people concerned about recent allegations that Comcast is interfering with its subscribers' use of the BitTorrent protocol, perhaps by using an appliance that disrupts BitTorrent sessions. Some of the people contacting us are Comcast subscribers who've had trouble with BitTorrent recently and think that they might be affected by the same problem.
Debugging network problems can be complicated because of the varieties of versions and configurations of client software and the number of places in the network where problems could occur. Most mysterious network errors aren't intentionally caused by anyone. But some ISPs and universities have experimented with appliances that block or disrupt particular traffic, such as VoIP or P2P file-sharing traffic.
The recent terrorist plot uncovered in Germany was detected by traditional means. According to Newsweek, "One U.S. intelligence official described the law-enforcement operation as a case of 'good old-fashioned police work.'"
Nevertheless, when Mike McConnell, the Director of National Intelligence, testified [PDF] before Congress on Monday, he cited the German arrests as proof of the importance of conducting electronic surveillance without warrants under the so-called Protect America Act.
- Big Victory for Limits to Copyright Law
The 10th Circuit Court recognized First Amendment
constraints on Congressional powers in copyright law.
- Internet Anonymity Tool Used for Eavesdropping
A security researcher found a way to use Tor to spy on
- House Passes Bill to Revamp Patent Process
New legislation would limit damage awards.
National Security Letters (NSLs) are in the news a lot lately. Earlier in the year, a Justice Department report found that abuses of this powerful investigation tool were rampant, despite repeated statements to the contrary by Attorney General Alberto Gonzalez. Then, documents obtained by EFF under the Freedom of Information Act exposed chronic misuses of NSLs, as well as other illegal demands that phone companies provide information on a target?s "Community of Interest." And let?s not forget that earlier this month, a federal judge ruled NSLs unconstitutional.
Qualified candidates should have at least four years of legal experience, with knowledge in patent law and at least one other IP specialty (copyright, trademark, trade secret). Litigation experience is preferred, including significant experience managing cases, both overall case strategy and day-to-day projects and deadlines. Candidates should have good communication skills and interest in working with a team of highly motivated lawyers and activists in a hard-working nonprofit environment. Strong writing and analytical skills as well as the ability to be self-motivated and focused are essential. Tech savviness and familiarity with Internet civil liberties and high tech public interest issues preferred. This position is based in San Francisco.
Interested applicants should submit a resume, writing sample, and references to firstname.lastname@example.org.
On the heels of Apple's other two pieces of anti-competitive DMCA-bait, it now appears we have a third bit of lawyer-chum in the water: Apple has reportedly locked its latest iPods to its own iTunes software. So third-party applications (like Songbird) will no longer be able organize or sync your (unDRM-ed) music on these iPods.
While many have noted that this is bad news for Linux users, it's also bad for Windows and Mac users. iTunes (the software, not the store) has built a considerable lead in the "media jukebox" category on both sides of the Windows-Mac divide. This latest move looks like an effort by Apple to consolidate and hold that beachhead, blocking competitors from entering the market and leaving consumers on all platforms with fewer choices.
EFF is hosting a one-day session on October 10, 2007 for Web 2.0 workers who handle issues arising from users and user-generated content.
Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations? Let us help. Our Mountain View Bootcamp will let front-line staff meet and question lawyers from the EFF and the top tech attorneys about the laws governing internet content, from the DMCA to ECPA to the CDA.
In a House Judiciary hearing today, Department of Justice Assistant Attorney General Ken Wainstein testified in support of the Administration's request to give the telecom companies a 'get out of jail free' card for their participation in warrantless wiretapping. Wainstein breathlessly warned that the telecoms might otherwise face "crushing liability." But the statutory penalties for warrantless wiretapping are relatively small per person -- even if AT&T was ordered to pay the maximum penalty, a few hundred illegal wiretaps would amount to less than a rounding error in the phone companies' quarterly statements (AT&T reported revenues of $29.4 billion for the quarter ending June 30). If the NSA was truly limiting its spying to suspected terrorists, the potential liability would be like an annoying gnat on an elephant. So why are the companies so worried?
[Update: The full schedule for the protest is now up. You can tune into live audio coverage of the Berlin demonstration online, with a five minute English update every hour, on the hour, from 12:00 CET to 21:00 CET.]
During yesterday's testimony before the House Judiciary Committee, the Director of National Intelligence Mike McConnell tap danced around a critical question about tapping communications. When asked how many Americans were tapped he responded only by saying "there is confusion of what the word tap means," and then downshifted his discussion to "targets." Unfortunately, Chairman Conyers' followup question asked changed the term again, asking who was "overheard."
EFF's letter offers assistance to the FCC in conducting the investigation, given our role in both the litigation against AT&T and our groundbreaking Freedom of Information Act (FOIA) work. We also point out that under the Communications Act, the FCC does not need to pry into the uses that the FBI or the NSA make of American phone records -- the law is violated when the information is illegally given to the spooks and feds and no further information is needed for the FCC to reprimand the carriers. We also point out that one of the arguments the Commissioner used to deny Representative Markey's first request for an investigation -- based on the National Security Act -- has twice been rejected by Judge Walker in the NSA litigation.
Should telecom companies like AT&T be given a ?get out of jail free? card for their participation in the Bush administration?s warrantless wiretapping program? That?s what Director of National Intelligence Mike McConnell and Department of Justice Assistant Attorney General Ken Wainstein asked for on Tuesday in a House committee. Strangely enough, it appears that Congressional Democrats are seriously considering playing along. As the New York Times reported in an article on the House committee hearings, ?Democratic Congressional aides say they believe that a deal is likely to provide protection for the companies.?
According to UH, it's a simple quid pro quo copyright assignment in exchange for education: "The University is providing you with a valuable opportunity to learn, grow and create during the course. Only a portion of the cost of providing courses is covered by your tuition and fees. Universities commonly use earnings from the licensing or sale of intellectual property to help cover their operating costs." UH has also said that it will use its rights to protect UH's reputation, in other words, to make sure students don't go submitting works to festivals, posting them on YouTube, sending them to prospective employers, and so on, without UH permission. If any university tried to control the release and distribution of a professor's latest book, such a policy would immediately be recognized for the censorship that it is. Too bad that recognition doesn't extend to students.
- Great Firewall of China Patchy But Effective
Over 28% of banned words make it through the national filter, but that may be enough to self-censor citizens.
- Google Calls for International Privacy Standards
Not surprisingly, the Internet giant wants minimal global standards on the collection and retention of personal data.
- Canadian Feds Push for Greater Access to Private Info
New legislation would force telcos to provide customer information on demand, without a court order.
Newsweek's top story today exposes the desperation of the telecommunications companies in light of cases like EFF's class-action lawsuit against AT&T, which accuses the telecom giant of assisting in the illegal surveillance of millions of Americans. The telecoms and the Administration are heaping pressure on Congress to get a 'get out of jail free' card for their role in helping the government spy on their customers:
The campaign — which involves some of Washington's most prominent lobbying and law firms — has taken on new urgency in recent weeks because of fears that a U.S. appellate court in San Francisco is poised to rule that the lawsuits should be allowed to proceed.
Personal data is a hot commodity. All sorts of businesses trade in data concerning what we buy, how much credit we have, where we live, what our interests are. This information is sold to advertisers, who then eagerly use it to more precisely target people that they hope will be interested in their products ? leading to all those annoying catalogs that litter your doorstep, for example, or the junk emails that choke your inbox every day.
The growing global censorship of the Internet often goes unseen in the
English-speaking Net, because so much of it takes place in other countries,
and in other languages. But that doesn't mean that there aren't contemporary
threats to Internet free speech in the English-speaking world.
For years now, EFF has been arguing against the strongarm tactics of the Recording Industry Association of America (RIAA) and its vain attempt to stop filesharing by dragging music fans into court. At the same time, we?ve also been tirelessly promoting the idea of Voluntary Collective Licensing (VCL) as a solution that could give fans what they want, while ensuring that musicians get paid. Lately, these formerly fringe ideas are garnering broader respect after a few mainstream stories about the RIAA lawsuits and VCL.
The Associated Press reports on the beta website ThePudding.com, which is offering users "free" voice over IP (VoIP) calls, with an invasive catch -- it uses voice-recognition software to serve you ads based on the conversation you're having. In some ways, it can be likened to Google scanning your Gmail messages for keywords used to send you targeted advertisements.
- Censor Yourself (in German)
Hot on EU Commissioner Franco Frattini's threat to block
your own blog.
- Victorious RIAA Defendant Gets Attorneys' Fees
Tanya Andersen proved herself innocent of copyright
infringement -- now she's finally getting some cash.
- Amazon Launches DRM-free Music Store
The service will allow download of 2 million tracks without
I'm currently tapping into my laptop a few feet away from Michael Chertoff, Secretary of the US Department of Homeland Security. He is giving the keynote at Terra Incognita: the annual conference of Data Protection and Privacy Commissioners, here in Montreal.
His audience has him on the defensive. In the room are the European data protection registrars, the government officials who protested strongly against his department's recent agreement with the EU, which hands over their citizens' passenger name records (PNRs) to the United States government with little oversight.
EFF welcomes a victory for online free speech in Freecycle v. Oey, a case from the Ninth Circuit Court of Appeals upholding the right to engage in open discussion about words companies are trying to trademark, without the fear of being sued by the companies under trademark law. EFF signed onto the amicus brief written by Stanford Law Professor Mark Lemley arguing that such discussions were not trademark violations.
Today, Judge Ann Aiken of the Oregon Federal District Court ruled that two provisions of the Foreign Intelligence Surveillance Act (FISA), "50 U.S.C. ?? 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution."
Good news from California's Alameda County -- a judge has voided election results after the county botched its response to a contested race conducted on Diebold electronic voting machines. The judge ordered that the disputed Measure R -- an initiative addressing the operation of medical marijuana dispensaries -- go back on next year's ballot.
Measure R lost by fewer than 200 votes in the 2004 election, and Americans for Safe Access and voters in the city of Berkeley brought a legal challenge seeking a recount. But while the lawsuit was ongoing, election officials returned the voting machines to supplier Diebold Election Systems, and 96% of the detailed audit information from the election was destroyed. EFF helped analyze the remaining data, but as the judge recognized, it was impossible to tell if the tallies reported on election night were correct.
Right now, high-powered lobbyists for the giant telecom companies are descending on Capitol Hill to lobby Congress. Their aim: to secure immunity for their clients, insulating them from liability for breaking the law in connection with the NSA?s illegal warrantless wiretapping program. Clearly, EFF's case against AT&T is in their crosshairs.
Considering the urgency of the issue, mainstream media coverage has been surprisingly spotty and incomplete. But there are some excellent updates and analysis from bloggers and news sources that have been doggedly covering the facts as they come in. Here are a few of our picks: