The AP, the Washington Post, and Wired's Threat Level are reporting on today's testimony by Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel. Goldsmith testified that there were certain aspects of the warrantless surveillance program "that I could not find the legal support for," describing the basis as "a legal mess ... it was the biggest mess I encountered there."
Since 2003, the government has been building, testing and using the Terrorist Screening Database, stitching together several disparate terrorist lists from various agencies into one vast, centralized database that is a single consolidated watch list of suspicious individuals. Information in the TSDB can be used to decide whether individuals will be allowed to enter the country, get on an airplane, become citizens, or if they will be detained at routine traffic stops. It?s a central factor in other programs, like Secure Flight, the Transportation Security Administration?s proposed plan to ?screen? millions of travelers.
Yesterday, the House Committee on Energy and Commerce opened an investigation into warrantless wiretapping, asking for details from telecommunications providers about government efforts to obtain customer data. In addition, several key members of the committee sent letters to EFF and other civil liberties groups, requesting assistance in the committee's investigation of the controversial program. EFF will be happy to respond.
Representative Ed Markey is quoted in Tuesday's press release, saying:
Breaking News Google Associate General Counsel Alex Macgillivray has agreed to attend the EFF Compliance Bootcamp on October 10 and to explain why Google thinks it is important that Web 2.0 companies learn the information we're teaching.
Additionally, Google has generously offered funding for scholarships for approximately 20 additional individuals to attend the Bootcamp. To apply, submit one paragraph to us at Bootcamp@eff.org explaining:
1) Why you would like to attend the Bootcamp, and
2) Why you need a scholarship in order to attend.
We will review them and choose the scholarship recipients on Monday October 8. Thanks Google!
Four years after it began, the Recording Industry Association of America?s (RIAA) campaign to intimidate music fans by randomly singling out individuals for lawsuits has, for the first time, made it to a jury trial. Despite the RIAA's previous claim that defendants have no right to a jury trial, Jammie Thomas had her day in court in front of a jury sworn to examine the evidence in a fair, impartial manner. The verdict is now in: Thomas was found guilty, and will be liable for $220,000 in penalties ? $9250 per song.
Today the New York Times published a fascinating article about a secret government memo purporting to justify extreme interrogation methods, written even as the Administration was disavowing torture. The article is well worth a read in its own right. Deep within the article, lies an pagewanted=4&hp">anecdote on another topic ? the legal justifications for the NSA warrantless surveillance program:
In the wake of the $220,000 verdict against Ms. Thomas, for file-sharing, some have asked whether she can avoid the judgment by filing for personal bankruptcy. The question is a complicated one, and, as it happens, EFF posted a memo last summer explaining the law in this area, for those who may be interested. (Note, it has not been updated since 2006, so further research would be necessary to uncover any more recent precedents.)
In the upcoming appeal of the $222,000 judgment against Ms. Jammie Thomas, the outcome will likely turn on Jury Instruction #15, which equates "making available" with "distributing" a copyrighted work. If the appeals court rejects that jury instruction, the verdict against Ms. Thomas would have to be thrown out and the case re-tried.
Here's the instruction that was read to the jury:
Jury Instruction #15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.
There are two distinct things wrong with this instruction.
- NSA Tells Reporters What to Say
The NSA ran seminars for reporters on how to cover
- FCC Won't Investigate Warrantless Wiretapping
The FCC has declined to investigate the NSA's use of
telecoms to spy on Americans.
- Amazon's Music Is DRM-Free (But Not EULA-Free)
Amazon's MP3s come with a license agreement that restricts
Last week, StopBadware.org released a report titled "Trends in Badware 2007: What internet users need to know." The document is a plain-English explanation of modern security threats on the web, covering iframe injections, phishing on social networks, and scareware, amongst other topics. In an environment that often offers only arcane cues to malice or wrongdoing, the 12-page document is a straightforward way to improve security awareness in the casual Internet user.
Advocates for the DMCA's ban on circumventing DRM have long argued that legal protection for DRM is necessary to "enable new business models" that will "create more choices for consumers." A recent blog post by Yahoo Music's general manager, Ian Rogers, suggests that the DMCA hasn't actually delivered on that rosy promise.
According to Ian, who has been part of the online music business from nearly its inception, DRM has been an impediment to the creation of new business models, not an enabler:
The House Judiciary Committee and the House Intelligence Committee both passed the RESTORE Act today, paving the way for a full House vote next week. The RESTORE Act is an attempt to restore civil liberties lost in August, when Congress hurriedly passed the horrible "Protect America Act." The RESTORE Act is a good step forward, although EFF remains deeply concerned about its embrace of so-called "blanket warrants," which eliminate the time-honored principle that law enforcement must have individualized suspicion of you before it can listen in on your calls or read your email messages.
As you may have noticed if you're hitting the site directly, rather than our RSS feeds, we've just launched a full site redesign and restructure. It's been a long time coming, and we're way excited about it!
We’ve made some design and navigational changes that should be immediately apparent. But by far the biggest change for eff.org is that we're now running on the open source content management system Drupal. Migrating into a CMS was a hefty challenge, as our website is almost as old as our organization, and has thousands of pages and files. But we did it, and the end result of this herculean data massage should be that we're able to get more information up on our website, and to you, more quickly.
This project was a major undertaking for EFF, and we have some much-deserved Thank Yous to hand out:
Today the New York Times published an article based on Freedom of Information Act documents obtained by the Electronic Frontier Foundation, which provide a glimpse into the Defense Department's use of National Security Letters to collect bank and credit information in certain Pentagon investigations. According to the story:
An internal Pentagon review this year found systemic problems and poor coordination in the military’s efforts to obtain records from American banks and consumer credit agencies in terrorism and espionage investigations, according to Pentagon documents and interviews.
On Sunday, the San Jose Mercury News published EFF Senior Staff Attorney Kurt Opsahl's comprehensive op-ed about Hepting v. AT&T, EFF's landmark case against the telecom giant. The article concisely illuminates the ideologies swirling beneath the battle being waged in D.C. -- a conflict between the preservation of fundamental, constitutional principles and an unprecedented expansion of presidential power:
The Hepting case, along with companion cases pending in District Court, represent the country's best hope to test the administration's extreme view of executive power in the crucible of judicial scrutiny, and to allow the courts to determine whether we are truly a nation governed by law or by people.
You can read the complete op-ed here.
- Qwest CEO Claims U.S. Withdrew Contracts as Punishment
Did the NSA punish the telecom for refusing to hand over
- NSA's Lucky Break
How the U.S. became the switchboard to the world.
- License Plate Recognition Tools Led to Arrest
A police gadget that scans license plates raises privacy
- New TSA Rules Require 72-hour Notice to Fly
Under new proposed rules, passengers could no longer fly on
Google has announced its long-awaited copyright filtering (or "video identification," if you prefer) mechanism for YouTube. Based on initial reports and discussions with Google, the system will be good news for copyright owners and bad news for people who post unauthorized verbatim copies of popular copyrighted material. But what about the fair users, who have made YouTube the platform of choice for remix culture? Unfortunately, it looks like YouTube's solution may put them in jeopardy.
When Qwest refused the NSA’s illegal request that it hand over its customers’ data without a warrant, the NSA wasn’t happy. According to former Qwest CEO Joseph Nacchio, the government hit back for the telecom’s refusal by denying them lucrative contracts (log-in required) worth hundreds of millions of dollars.
That claim, backed up by documents, was made during Nacchio’s appeal of his conviction for insider trading. Whether or not Nacchio’s appeal goes through, his case has brought forward some interesting facts that deserve to be highlighted.
The telecoms have returned letters to the House Energy and Commerce Committee's requests for information about secret warrantless wiretapping programs. The responses seem to have failed to significantly advance the Committee's investigation on government surveillance programs, prompting a diplomatic response from Representative Bart Stupak, chairman of the Subcommittee on Oversight and Investigations: "While I recognize the unique legal constraints the telecommunications companies face regarding what information they may disclose, important questions remain unanswered about how the Administration induced or compelled them to participate in NSA’s eavesdropping program."
In the face of news that the Senate Intelligence Committee intends to approve new surveillance legislation that includes immunity for telecoms that participated in the NSA's illegal domestic surveillance program, reported in both the Washington Post and the New York Times, Senator Chris Dodd has taken a stand: he will be putting a "hold" on any such legislation, to prevent it from being considered by the broader Senate. EFF commends Senator Dodd for standing up for Americans' privacy rights and demanding that companies that broke the law be held accountable.
On November 28, the Republican candidates for President will face questions from the public in the form of user-generated video clips uploaded to YouTube. (A similar event was held by Democrats last July.) We hope the candidates get to hear from Kim LeBiavant, who has a very important question regarding warrantless wiretaps:
This morning the Associated Press reported that Comcast is interfering with users' ability to run file sharing applications over its network.
Since we spoke to Comcast last month and understood them to deny that they are doing this, we've been running our own tests.
The results of our tests have agreed with AP's. Comcast is forging TCP RST packets which cause connections to drop (a technique also used by Internet censorship systems in China). These packets cause software at both ends to believe, mistakenly, that the software on the other side doesn't want to continue communicating.
Glenn Greenwald is one of the most thorough political bloggers covering the issue of warrantless wiretapping. Week after week, his Unclaimed Territory blog at Salon has kept abreast of the latest developments, tenaciously covering every twist and turn in the debate as Congress mulls whether to grant immunity to telecom lawbreakers for their participation in the illegal program.
Today’s post from Greenwald includes selections from a long interview with EFF Legal Director Cindy Cohn, highlighting some of the most recent developments in EFF’s class-action suit against telecom giant AT&T:
GG: The lawsuit you originally brought was against only AT&T and not against the Bush administration or any government officials. Is that correct?
The Senate Select Committee on Intelligence approved a bill including amnesty for phone companies that assisted the NSA in its illegal warrantless surveillance program late Thursday -- amnesty that is intended to kill pending cases against the telecoms such as EFF's class action lawsuit against AT&T.
Yesterday, we posted about some experiments showing that Comcast is forging packets in order to interfere with its customers' use of BitTorrent. There have been reports of strange things happening with other protocols, and we've been running some tests on two other file transfers protocols in particular — HTTP (which is used by the World Wide Web) and Gnutella. Comcast has also been strenuous in telling us, "we don't target BitTorrent". Perhaps not. Perhaps what they're doing is even worse.
In the limited tests we ran, we didn't see any interference with HTTP traffic. Comcast's network seems to behave correctly when you run a private web server and share a few of your photos or videos over it (we tested files up to about 25MB).
We recently published a one-page document summarizing the evidence that is the centerpiece of EFF's Hepting v. AT&T case. Information for the document came from previously secret evidence that was unsealed this summer, including the declarations of whistleblower Mark Klein and EFF's expert witness, J. Scott Marcus, a former Senior Advisor for Internet Technology to the Federal Communications Commission. The document includes the following diagram, a straightforward illustration of how a massive portion of innocent Americans' communications were put under the control of the NSA:
When a key Senate committee voted Thursday to include retroactive immunity for telecom lawbreakers in new legislation, they may not have been prepared for the rising tide of criticism coming their way. Newspaper editorial boards and legal scholars from around the country, normally cautious and reserved, are speaking out in increasingly urgent terms about the threat to the rule of law posed by the immunity provisions. If the bill becomes law it will let phone companies off the hook for their participation in the NSA’s massive and illegal wiretapping program.
Here are few selections from the nation's wires:
NY Times (login required):
- href="http://salonmedia.vo.llnwd.net/o1/mp3s/2007/oct/conversations_cohn.mp3">Podcast: EFF's Cindy Cohn on Telecom Immunity
Salon blogger Glenn Greenwald's interview with EFF Legal Director Cindy Cohn.
- U.S. Voters Oppose Warrantless Wiretapping
A recent poll found that a majority of voters across the political spectrum are opposed to warrantless wiretaps.
- Josh Wolf on Journalist's Shield Law
Will the Free Flow of Information Act do enough to protect bloggers?
- Microchips Used to Track Students
A recently completed investigation into copyright's effect on media literacy education resulted in the following criticism: lack of knowledge and poor policies inhibit the teaching of critical thinking and communication skills.
Last week, the influential Computer & Communications Industry Association (CCIA) sent a letter to Speaker of the House Pelosi opposing amnesty for telecommunications companies involved in the illegal warrantless surveillance program. CCIA encouraged Congress "to reject broad immunity provisions in favor of a better balance between legitimate national security interests and basic Fourth Amendment privacy for U.S. citizens."
When it comes to putting the pressure on the Senate to stand against retroactive immunity for telecom lawbreakers, bloggers have taken a vital lead. They helped inspire Chris Dodd to pledge a hold on any Senate bill that contains an amnesty, and prompted Barack Obama's recent unequivocal opposition to immunity.
These key bloggers have joined together to send a letter to Harry Reid, urging him to honor Sen. Dodd's hold and stop the immunity legislation currently moving through the Senate. The full letter is at www.noretroactiveimmunity.com. You can add you own name to the letter there (and join EFF, the ACLU, Working Assets and many prominent figures in the Democratic netroots.) And don't forget to visit Stop The Spying to call your representatives and urge them to use their vote to oppose telecom immunity in Congress.
Over the last couple of days, Comcast has been telling the press that they're not interfering with their users' traffic, they're just "delaying" it. Let's examine that proposition for a moment. In our previous posts, we discussed Comcast's forging of TCP RST packets to kill users' connections on BitTottent, Gnutella and Lotus Notes. To see just how disingenuous Comcast is being, consider the following analogy:
Today EFF and a group of other public interest groups devoted to protecting free speech and fair use issued a document entitled "Fair Use Principles for User Generated Video Content [PDF] [HTML]." Accompanying the document is a "test suite" of sample videos that EFF believes should not be blocked by automated copyright filters, but may nevertheless be in jeopardy based on their use of excerpts from pre-existing copyrighted material.