In today's Washington Post, Dan Froomkin's column examines the Bush Administration's "three-part argument for immunity, based on concerns about fairness, secrecy and future cooperation." As Froomkin notes, "all three parts of this argument are flawed," and rightly concludes that "none of these points argue for retroactive immunity." The column is a great addition to Dan Eggen and Ellen Nakashima's article in the Sunday Washington Post, which provides important background on the litigation and immunity debate.
Too often the White House spokespeople are able to dodge and weave their way through questions about the President's demand for immunity against warrantless surveillance lawsuits. To help the press corps try to get to the heart of the matter, here are the top ten questions we'd like to see Dana Perino or Tony Fratto faced with at their next press conference:
The Patent Busting Project fights back against bogus patents by filing requests for reexamination against the worst offenders. We've successfully pushed the Patent and Trademark Office to reexamine four of the ten patents on our Most Wanted list, and now we need your help to bust another.
A company called Polaris has a patent on a method for telling whether or not an incoming message (e.g., an email) is a simple, standard request that can be answered automatically, and, if so, for answering it. The method processes incoming messages by consulting two databases: a database of IF-THEN rules, and another database of previously classified messages (cases). In other words, Polaris claims to have invented the basic concept of almost any technology that is used to determine whether the message can be answered automatically or must instead be forwarded to a human being.
In a story in today's Washington Post, Assistant Attorney General for National Security Kenneth Wainstein candidly admitted that the problems with FISA (the asserted impetus to the need for new surveillance legislation) are not with foreign-to-foreign telephone calls.
At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.
Following a federal district court's reversal of its prior ruling that disabled one of the domain names of whistleblower site "Wikileaks," Swiss bank Julius Baer has decided that it has had enough. On Wednesday, Julius Baer filed a motion of voluntary dismissal, effectively ending the case. While the bank notes that it "may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue," that seems unlikely, at least in a U.S. court.
The Bush administration and its supporters have repeated complaints about "greedy trial lawyers" so many times that they're beginning to sound like one of those clips on the Daily Show -- you know, the ones that show talking points being repeated so many times that it becomes painfully obvious how politicians use catch phrases to manipulate public opinion?
A couple of op-ed pieces appeared this week taking the "trial lawyer" meme to task for it's obvious weaknesses. Both were penned by plaintiffs in the suits objected to by the President -- suits headed by EFF that seek to hold telecoms accountable for their participation in the NSA's massive and illegal warrantless wiretapping program.
If Tash Hepting’s name sounds familiar to DeepLinks readers, it’s because he is lead plaintiff in the case EFF is heading up against AT&T for it’s participation in the government’s warrantless wiretapping program – that is, Hepting v. AT&T.
Mr. Hepting is adding his voice to that of other plaintiffs who have spoken out recently, telling their side of the story about why they decided to sue the government. In an interview on NPR this morning, he objected to the President’s portrayal of the suits as being led by “trial lawyers” out to hop on some sort of “financial gravy train”.
My name is Cindy Cohn and I’m the legal director of the EFF.
I am honored to be presenting an EFF Pioneer Award to Mark Klein. The Pioneer Awards are often given to people who are innovators, who make cool or important things or who explain or change policy. We award thinkers of big thoughts and doers of big deeds. But in Mark we have something even better. We have a bona fide hero.
Let me tell you a little about Mark Klein.
On the surface Mark is a retired AT&T telecommunications technician, with 22 years at the company.
In 2002, Mark learned that the NSA was installing a secret, secure room at AT&T’s central office at 611 Folsom Street in San Francisco.
In October, 2003, Mark was transferred to that facility and assigned to connect circuits carrying Internet data to optical “splitters” that were hardwired to that secret NSA room.
- UK ISPs to Show Targetted Ads Based on Visited URLs
The set-up claims not to leak information: but should ISPs be surveiling your browser habits in the first place?
- Flood of EU Passenger Surveillance Plans Coming, Says Watchdog
"Far reaching proposals intended to contribute to the monitoring of travellers ... are succeeding each other rapidly," says European Data Protection Supervisor Peter Husinx.
- Israeli ISPs to Block Peer-to-Peer Site
A court judgement in favor of IFPI in Israel forces ISPs to re-route traffic.
Last year the World Intellectual Property Organization adopted a set of 45 ground-breaking proposals on how WIPO should reorient its operations to foster economic and social development within its 182 Member States. The Development Agenda proposals are intended to require WIPO to take a broader approach to promoting creativity and innovation, instead of focusing exclusively on maximizing intellectual property rights.
Update: You can find a detailed analysis of claims made in the article here.
The Wall Street Journal's front page today contains an important article that confirms key elements of EFF's suit against AT&T. Officials quoted in the article acknowledge a massive domestic spying operation run by the NSA, and confirm that the program includes the wholesale copying of entire data streams by the telecoms, as well as the existence of a "domestic network of hubs" to coordinate the spying in different cities.
BoingBoing TV features a nice interview with Mark Klein and me, done just before the Pioneer Awards. Hilariously, it features an ad by Verizon.
The Wall Street Journal's detailed article on domestic spying (Wall Street Journal, NSA's Domestic Spying Grows As Agency Sweeps Up Data (March 10, 2008), p. A1) provides critical detail and confirmation of the NSA's wholesale acquisition of domestic communications, and helps us understand the Administration's word games. It also shows that the Administration is relying upon erroneous views of electronic communications privacy law, including some that contradict the Department of Justice's own published interpretations.
Bloggers have already begun tackling the Wall Street Journal's "omnibus" article about expansive domestic surveillance by the National Security Agency (NSA). While many posts are providing large excerpts thanks to the Wall Street Journal's onerous paywall (which actually seems to be disabled for the story at the time of this writing), bloggers are reaching similar conclusions:
- Net Neutrality: Internet Wrecking Ball?
Andy Kessler argues that technical fixes won't keep the Internet free.
- A Wave of the Watch List, and Speech Disappears
A Treasury Department blacklist apparently has the power to shut down websites. (login may be required)
- International Crypto Law Made Easy
A Google map that pinpoints the state of crypto law around the world.
Pedro Nava, a prominent California Assemblymember, introduced a non-binding resolution today that asks California's members of Congress to oppose Real ID, the unfunded federal mandate to turn driver's licenses into a national ID card. It highlights the state's growing opposition to Real ID as legislators and citizens begin to realize the astronomical cost and catastrophic privacy implications of participating in the federal program.
Congress is contemplating a so-called “Anti-Phishing Consumer Protection Act” (APCPA) that takes an odd view of consumer protection. In the name of stopping phishing schemes, Senator Olympia Snowe has introduced S. 2661, a bill that would expand trademark law, limit consumer access to information about competitive products, and eviscerate key protections for anonymous speech. Co-sponsors are Senators Bill Nelson and Ted Stevens (yes, THAT Ted Stevens).
In light of new allegations of unusual and suspicious telecom systems, 34 prominent advocacy groups have signed a letter urging Congress to hold fast in defending against telecom immunity.
Citing a significant body of opposition to telecom immunity, including a letter from leaders from the House Energy and Commerce Committee, long-standing evidence of telecom lawbreaking from AT&T whistleblower Mark Klein, whistleblower Babak Pasdar's allegations of an unsecured gateway to wireless communications at a major telecom, and a strong letter from four former senior intelligence officials, the groups say:
For weeks, the House has been deliberating on its response to the Senate's FISA Amendments Act, which aims to grant retroactive immunity for telecoms involved in warrantless wiretapping. While it's seemed like a possibility that the House was going to cave and agree to grant immunity, the tides have shifted in a big way in the last few days.
Yesterday, House leaders announced a bill that would not grant telecom immunity, and today, House Judiciary Chairman John Conyers, Jr. (D-MI) and 19 Members of the House Judiciary Committee issued a strong statement dismantling flawed pro-immunity arguments and delivering concrete findings and recommendations on dealing with the secretive terrorist surveillance program and telecom immunity.
Coauthored by Policy Intern Raeanne Young
The latest statistics [PDF] from the Patent and Trademark Office prove what EFF has been saying for years: third party challenges to patent validity provide an invaluable check on improper and overbroad patents. According to these records, in the 25 years since ex parte reexamination became possible, the PTO has granted the vast majority of reexamination requests. In other words, the PTO found that the third party challenge raised substantial new questions of patentability. Thus, rather than overburdening the examiners, reexamination requests are helping the PTO separate the wheat from the chaff, fix mistakes and meet its stated goal: to promote innovation.
Wow. This morning, the House stood up for our rights and passed a FISA reform bill with no retroactive immunity for phone companies! This is a flat-out rejection of the bill passed by the Senate last month, which would have let phone companies off the hook for illegally delivering innocent Americans' emails and phone calls to the government.
This is an incredible victory. House members opposed to immunity were confronted with a veto threat, a massive lobbying effort, a deceptive fear-mongering ad campaign and bizzare last-minute scare tactics. Despite it all, they listened to their constituents and stood strong.
- Analysis: Firm Stance on FISA Pays Big for Democrats
Confronting the President on spying powers turns out to be
a better strategy than capitulation.
- President Weakens Spying Oversight
The Intelligence Oversight Board has been stripped of much
of its authority -- reversing reforms of the 70s.
- P4P -- New Peer-to-Peer Tech
Verizon is looking into ways to enable better networks
rather than impede them.
- Italian Privacy Authority Upholds Privacy of P2P Users' IP addresses
Google translation of court decision defending 3000 Italian P2P users, whose IP addresses were obtained by German label Peppermint.
- License Plate Surveillance 'The Hallmarks of a Totalitarian State', Says German Supreme Court
Roundly rejects the technology from being used in the country.
- Is British Government Going Wobbly on No Sound Copyright Extension?
A UK government spokesman hints they are not wedded to their previous economic analysis.
The principles of open government are promoted and celebrated each year during Sunshine Week — observed this year March 16-22. The weeklong initiative is built around National Freedom of Information Day, which has been celebrated since the 1970s on March 16, James Madison’s birthday. Madison is regarded as "the father of freedom of information" based upon his observation that "a people who mean to be their own Governors must arm themselves with the power knowledge gives."
On Friday, Representative Michele Bachmann (R-Minn.) wrote an op-ed in the Minneapolis Star-Tribune that epitomizes the sort of unvarnished misrepresentations and scare tactics that the apologists for the President and the phone companies have increasingly resorted to in the fight over amending the Foreign Intelligence Surveillance Act (FISA).
First, at the top of the op-ed, Bachman asserts that "Attack after attack has been averted because of the Protect America Act." In the body, she explains:
Going back to the '20s, Sanchez reviews multiple occasions when authorities have used spying powers not to protect the country, but to further the political aims of parties and politicians:
The music and movie industries have been making a concerted attempt to introduce a "three strikes" rule for Net users in many countries simultaneously — pressuring ISPs to throw their customers offline, possibly permanently, if the rightsholders report that they have been infringing.
The response by national ISPs and governments has varied: in the same week as Japanese ISPs declared they would voluntarily follow such a scheme, Sweden's Ministers for Justice and Culture came out strongly (Swedish article) against shutting down subscribers in their country.
Mark Klein, the AT&T technician who came to EFF with evidence of government spying, eloquently explained to PBS NOW this weekend why Congress should reject immunity for telecoms taking part in the spying. If you missed it, you can watch the show online. Fortunately, a majority of the House agrees with Mark Klein, passing a bill on Friday amending FISA without letting telecoms off the hook. The battle moves to the Senate when Congress comes back from recess in April.
Last week at SXSW, music industry veteran Jim Griffin broached the idea that file sharers pay a small fee through their ISPs in exchange for unlimited file sharing. There is a great deal to recommend an idea like this (as we've been saying since 2004), but there's a right way and a wrong way to go about it.
We are big fans of a collective licensing solution for the music file-sharing dilemma: music fans pay a few dollars each month in exchange for a blanket license to share and download whatever they like; collecting societies collect the money and divvy it up between their member artists and rightsholders. It's not a radical idea -- that's roughly how we pay songwriters for radio play, concert hall performances, and the music playing in your favorite restaurant.
For the first time, U.S. technology policy has taken a front-row seat in this election year. If you had the candidates' ear, what would you tell them to do in regards to our digital world?
Computers, Freedom and Privacy (CFP) is a conference whose interests have tracked those of EFF for almost a decade. This year, the 18th annual CFP will focus on what constitutes technology policy — and organizers are asking for your help. Read on to find out how to contribute to the debate, and how to travel and attend for free if you are a tech or public policy journalist.
To hear the MPAA tell it, Hollywood faces a mortal threat from something vaguely defined as "piracy." The danger is supposedly so great that the MPAA has been lobbying Congress for help -- all the while inflating their numbers to exaggerate the amount of filesharing on college campuses.
But recent news reports show the movie industry has just had a record-breaking year. The box office brought in $9.63 billion, a 5.4% increase over last year. And that's only box office -- if 2006 numbers are any indication, sales from theatrical showings will amount to just 20% or so of overall revenue.
It seems somehow appropriate that the House's awesome vote to hold phone companies accountable for illegal spying would happen at the onset of a week dedicated to government transparency. Few things need transparency more than secret government surveillance law, and so we've rebuilt Stop The Spying.org to help you find where your congressperson stands.
Visit the site to find out how your representative voted. If they stood strong, you can send them a thanks, and if they didn't stand so strong, you can ask them to do better next time.
And as you thank the house, EFF thanks you for giving them the support they needed to cast the right vote!
- FISA Attacks Fail to Sway CT Representative
Rep. Joe Courtney has a good video explaining why he
opposes telecom immunity, despite being attacked on the
- Republican Opposes Telecom Immunity
A Republican candidate in North Carolina says he wants
telephone companies held accountable.
- Facebook Expands Privacy Features
Facebook is making some privacy improvements -- but some
changes are just theatre.
- Craigslist Not Liable for Postings
A Circuit Court has ruled that Craigslist cannot be held
- Antigua Says It Will Start Ignoring US Copyrights
WTO gave Antigua the right to ignore US IP rights as part of a judgement over online gambling bans. Now the small country is threatening to begin its data haven status, starting in April.
- France's Olivennes Law in Final Negotiations (Google Translation)
Sticking point among parties to the discussion is ISP filtering; outside, users are worried about government access to IP addresses and end-user liability for others using their network.
- CBC to Release Program DRM-Free Via BitTorrent
The level of privacy offered by search engines is generally woeful. Last year, the three big players (Google, Yahoo! and MSN) made some improvements by limiting the duration for full retention of logs about who has searched and what they've searched for. That means that after a year or two, it would be harder — though probably not impossible — for the major search engines and their advertising partners to reconstruct a complete history of your searches.
Ask.com went further with their AskEraser feature, which allows users to have their logs deleted and to opt-out of being tracked (Ask.com could have done better by finding a way for opt-out to be available without a cookie).
With Congress in the middle of recess, surveillance issues have receded from the front pages. But look a few pages further in, and you'll find signs that the issues are very much on the minds of ordinary Americans:
Once again, Congress will vote on new Foreign Intelligence Surveillance Act legislation. President Bush says he will not sign any bill that doesn't include retroactive immunity for telecom companies which have, in his words, "helped the government in the war on terror" by allowing access to customers' phone calls and e-mails.
Last month, shortly before the FCC held its first hearing in an investigation of Comcast's interference with BitTorrent and other P2P protocols, we noticed that Comcast was no longer injecting forged TCP RST packets in the simple tests we had been running on its cable network. Those tests had been showing interference through January 2008. Some sources with access to larger datasets informed us that the cable ISP was nonetheless still using RST packets against some BitTorrent sessions, just not the simple uses of BT and Gnutella that we had been testing. The status quo: Comcast is still interfering with P2P, but they are being more subtle about it.
- NY Times Wiretapping Coverage -- The Inside Story
An excerpt from NY Times author Eric Lichtblau's new book
on warrantless wiretapping.
- Fee for All -- Music as Service from ISPs
Warner is developing proposals that would make access to
music a service charged by ISPs.
- Charging Schools Instead of Suing Students
A new proposal from major labels would charge schools a fee
to allow students to share music legally.
- CBC Uses BitTorrent for Prime Time Release
A high-resolution version of a series finale was released
Yesterday's announcement of a détente between Comcast and BitTorrent was great news. Unfortunately, the general problem of ISPs doing strange things to Internet traffic without telling their customers is likely to continue in the future. EFF and many other organizations are working on software to test ISPs for unusual (mis)behavior. In this detailed post, we have a round-up of the tools that are out there right now, and others that are in development...
When you sign up for an Internet connection, you expect it to actually be an Internet connection. You expect that you can run whatever applications and protocols you choose over the link, or indeed that you can write your own software and run that.
- Israel Adopts Fair Use
In their reform of national copyright law, Israel opts for an open-ended and court-defined idea of fair use, similar to the United States.
- India Wants Blackberry Crypto
On the eve of renewing RIM's license in the country, India wants the keys to the mobile device's encryption system.
- Council of Europe Thinks Hard About Internet Filtering
Good (but minimal) recommendations for any country considering tampering with the Net.
- Industry Losing Faith In WIPO; Debates US WTO Cases Against China