- DNA Samples at WIPO
Police entered WIPO headquarters to take saliva swabs from ten employees, after their diplomatic immunity was removed. Reports say the investigation relates to a "smear campaign" against the Deputy Director General.
- Protest British Telecom's Annual General Meeting in London July 16th
Britons will protest Phorm's use of mass Net surveillance in ISP-hosted behavioral advertising systems.
- Olivennes Wants Three Strikes Exported to World
The telecoms who are being sued for their cooperation in the government's illegal warrantless surveillance program have received billions in government contracts. According to Washington Technology magazine, Verizon received $1.3 billion, Sprint $839 million and AT&T $505 million in federal prime contract revenue for fiscal 2007, for a total of $2.6 billion. While the companies have been government contractors for a long time, it still represents a significant increase in revenue.
It's a familiar story: A fan uploads a video shot at a Prince concert to YouTube, and that video promptly disappears the moment Prince's lawyers issue a DMCA takedown notice. It may seem silly to many fans, but the DMCA instructs content hosting sites to respond to copyright complaints by instantly removing disputed content.
But in this case, it's not at all clear that Prince had the right to issue this notice. The song in question is a reportedly excellent cover of Radiohead's song Creep. CNN Money reports that "all videos of Prince's unique rendition of Radiohead's early hit were quickly taken down, leaving only a message that his label, NPG Records, had removed the clips, claiming a copyright violation."
This week, the Stanford Center for Internet and Society's Fair Use Project struck a telling blow in the battle to protect fair use. A US District Judge issued an opinion holding that the producers and distributors of the documentary Expelled: No Intelligence Allowed are likely to prevail on their fair use defense in a copyright infringement suit brought by Yoko Ono. As part of the film's commentary on the treatment of "intelligent design" in academia, the filmmakers included a snippet of John Lennon's "Imagine," highlighting the lyrics "Nothing to kill or die for / And no religion too." The filmmakers did not seek a license to use parts of "Imagine" in the film.
Senator John McCain's presidential campaign has strong connections to the high-powered lobbyists employed by AT&T and other telecommunications companies to escape from responsibility for violations of federal law, with paid lobbyists occupying prominant positions in the upper echelons.
Last fall Newsweek reported on the telecom's "secretive lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits against them for assisting the U.S. intelligence community's warrantless surveillance programs." The magazine named some of the chief telecom immunity lobbyists:
Among the players, these sources said: powerhouse Republican lobbyists Charlie Black and Wayne Berman (who represent AT&T and Verizon, respectively), former GOP senator and U.S. ambassador to Germany Dan Coats (a lawyer at King & Spaulding who is representing Sprint) ...
Two professors and a student at the University of Washington released a study today explaining "Why My Printer Received a DMCA Takedown Notice" [PDF]. They argue that DMCA takedown notices, used as the principle mechanism for enforcing copyright on the Internet, should be viewed skeptically. We couldn’t agree more!
The researchers examined BitTorrent file-sharing networks using specially designed BitTorrent clients to monitor the traffic on these networks. Even though their clients did not upload or download any files, the researchers received over 400 takedown requests accusing them of copyright infringement. Every one of those notices was a false positive. Their results show that "potentially any Internet user is at risk for receiving DMCA takedown notices today.”
- Obama Should Lead on FISA
A CBS News Blogger has some advice for the presumptive nominee: Get to work protecting civil liberties!
- FTC Investigates Big Brother
The practice of compiling profiles on Internet users for purposes of targeted advertising is coming under scrutiny.
- Will Flame Wars Be Made Illegal?
A proposed federal statute would make it a crime to transmit communications with the intent to cause "substantial emotional distress."
ABC News reported today a new statement from McCain campaign spokesperson Tucker Bounds on the Senator's views on the executive power to conduct warrantless wiretaps in defiance of the restrictions of the Foreign Intelligence Surveillance Act (FISA):
John McCain continues to believe, as he always has, that every President has the obligation to obey and enforce laws passed by Congress and signed by the President. His position has not changed. This is precisely why he believes that existing FISA laws need to be modernized to provide in statute clear guidance for future actions that may need to be taken, therefore making it less likely that any President would need to rely solely on constitutional authority to protect this country.
Mere hours after a McCain spokesperson adopted the Bush Administration's flawed legal argument that courts have "recognized the President’s constitutional authority to conduct warrant-less surveillance" and that the "courts’ findings supported the Bush Administration’s efforts in the wake of September 11, 2001," Senator John McCain said that:
“It’s ambiguous as to whether the president acted within his authority of not,’’ he said, saying courts had ruled different ways on the matter.
(emphasis added). Previously, McCain had said that the president did not have the inherent authority to conduct warrantless surveillance.
The Supreme Court today issued a unanimous opinion in Quanta v. LG Electronics, its first ruling in 66 years addressing the patent exhaustion doctrine. Patent exhaustion is the patent law equivalent to copyright law's first sale doctrine -- once you buy a product, you own it and the patent owner generally can't interfere with your subsequent use. EFF filed an amicus brief on behalf of itself, Consumers Union, and Public Knowledge in the case.
Thanks to Senators Dodd and Feingold for sending a great letter today to House and Senate leadership decrying the telco immunity "compromise" being offered by Republican negotiators:
As we understand it, the [Republican] proposal would authorize secret proceedings in the Foreign Intelligence Surveillance to evaluate the companies' immunity claims, but the court's role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a company received "a written request or directive from the Attorney General or the head of an element of the intelligence community... indicating that the activity was authorized by the President and determined to be lawful." Information declassified in the committee report of the Senate Select Committee on Intelligence on the FISA Amendments Act, S. 2248, confirms that the companies received exactly these materials....
Here's a game you can play when reading or watching news about the President's warrantless wiretapping program. There are a few mistakes that the media keeps repeating over and over and over — see if you can spot them.
Congressional Republicans have new legislation they're pushing as a "compromise" on telecom immunity. One of their central talking points has been that the bill would allow a court to review whether the telcos acted legally when they cooperated with the NSA's warrantless wiretapping program. For instance, this morning's New York Times reported:
The Republicans have yielded somewhat on immunity for the companies: The current proposal from Mr. Bond would allow the FISA court to review the administration’s requests and determine by a “preponderance of the evidence” whether the requests were valid.
Glenn Greenwald aptly outlines the problems with this claim in his latest post on Uncharted Territory:
Yesterday the New York Times published an article, "Return to Old Spy Rules Is Seen as Deadline Nears," which allowed various Administration official to push their talking points supporting expanding their warrantless wiretapping powers. The main focus of the talking points is to suggest that Congress faces a deadline in August 2008 due to the expiration of the Protect America Act, and must pass surveillance legislation before that deadline.
The talking points have been effective: "Even some Democrats, at odds with the White House for months over the surveillance issue, said they were worried about the summer situation." Yet, contrary to the government’s fear mongering, America will have tremendous tools available to monitor terrorist threats in August 2008 and beyond.
- What the FISA Debate is Not About
Marty Lederman asks why reverting to the old FISA rules is supposedly such a problem for the intelligence community.
- ISP Plan to Block Child Porn -- Will There Be Chilling Effects?
The New York Attorney General says 3 major ISPs have agreed to block child porn -- but the plan could set a precedent that challenges the Communications Decency Act's protections for online content hosts.
- Movies on Cable Before DVD?
A plan would bring movies to cable faster, but you won't be able to watch on a high-def TV -- and don't even think about TiVo.
In an important victory for the first sale doctrine, a federal district court today ruled that selling "promo CDs" on eBay does not infringe copyright. The court threw out a lawsuit by Universal Music Group (UMG), which had argued that the "promotional use only" labels affixed to these CDs somehow conveyed eternal ownership on UMG, making it illegal to resell the CDs (or even throw them away).
It’s not news that there are patents out there that never should have been granted. Whether it’s the “invention” of entertaining a cat with a laser pointer, combining two well-known car features in a manner that offers no unexpected new outcome, or selling CDs of a live concert immediately after the show, the patent office allows some bad patents.
Today The Hill and Congressional Quarterly are reporting that a deal has been reached on legislation to amend FISA, which will include retroactive immunity for telecommunications companies. Under the guise of a compromise, the legislation is designed to ensure that the only issue the courts will review is whether or not the President told the telecoms that their conduct was legal, but not whether the conduct actually was legal.
A proposed new law in Sweden (voted on this week, after much delay) will, if passed, allow a secretive government agency ostensibly concerned with signals intelligence to install technology in twenty public hubs across the country. There it will be permitted to conduct a huge mass data-mining project, processing and analysing the telephony, emails, and web traffic of millions of innocent individuals. Allegedly these monitoring stations will be restricted to data passing across Sweden's borders with other countries for the purposes of monitoring terrorist activity: but there seems few judicial or technical safeguards to prevent domestic communications from being swept up in the dragnet. Sound familiar?
- British ISP Starts Sending Letters to Customers Accused of File-Sharing
Virgin Media co-authors the letter with the BPI, which includes threats to terminate service.
- French Council of State Wants ISP Filtering Out of Three Strikes
Does not like the expansion of non-judicial powers, rumors say.
- Mutualised Schemes
Meanwhile: a French model for funding creativity, from Squaring the Net
EFF is currently attending the Organization for Economic Cooperation and Development's ministerial meeting on the future of the Internet Economy in South Korea. As ever when a new international venue for discussion of Net policy emerges, there's a strong risk that the usual vested interests will attempt to dominate and use it for their own agendas.
A broad group of civil society organizations have put together a declaration to the OECD ministers with our recommendations, to ensure that our views get heard alongside those of the many business and government interests represented here.
Members of Congress are currently negotiating language for Foreign Intelligence Surveillance Act (FISA) legislation, with reports saying that a deal is imminent. As early as this week, Congress may be voting on this legislation, which will determine whether or not telecommunications companies will be given immunity against lawsuits for their illegal participation in the President's warrantless surveillance program. While it's certain that the legislation will be touted as a compromise by its supporters, all reports indicate that the legislation's aim will be to provide blanket immunity for lawbreaking phone companies.
Last week, the Associated Press sent the Drudge Retort seven DMCA takedown notices, demanding that the site remove excerpts of AP articles ranging from 33 to 79 words that were linked through to authorized copies of the AP stories.
As as business matter, the AP's approach is curious. The AP makes money by licensing its stories to its members. Its members make money by getting people to read their stories. Links that send traffic to AP member sites are a good thing for the AP and its membership.
- Selectable Output Control (SOC) for Video Content: It's All About Control
Jon Healy explains that the MPAA's petition to the FCC is really about gaining control over the next generation of video technology.
- Counter Spy Act -- Pro-Privacy or Anti-Piracy?
A new bill in the Senate is designed to fight spyware -- but Ed Foster says it provides a loophole for software makers who would like the ability to remotely disable software that is suspected of being pirated.
- Google to Develop ISP Throttling Detector
The Internet giant wants to provide users with tools to detect whether ISP service is being tampered with.
Today the Ninth Circuit issued its opinion in Quon v. Arch Wireless, holding that "users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages." The Court concluded:
The search of Appellants’ text messages violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope.
In a landmark ruling last year, the Sixth Circuit held that the Fourth Amendment protects email stored with a third party. Today's ruling applies the Fourth Amendment to text messaging.
Today’s Ninth Circuit Court of Appeals opinion in Quon v. Arch Wireless is a victory for the privacy of email and text messages. The holding means that law enforcement needs a probable cause warrant to access stored copies of your electronic messages less than 180 days old, regardless of whether you have already downloaded or read them. It also stops employers from getting the contents of employee emails or text messages from the service provider without employee consent.
As Congress gets ready to vote on a new version of the FISA bill -- addressing the crucial question of whether it should pass immunity for telecom lawbreakers that participated in the NSA's illegal spying program -- the New York Times Editorial Board has weighed in. They describe the so-called "compromise" as anything but:
The bill is not a compromise. The final details are being worked out, but all indications are that many of its provisions are both unnecessary and a threat to the Bill of Rights. The White House and the Congressional Republicans who support the bill have two real aims. They want to undermine the power of the courts to review the legality of domestic spying programs. And they want to give a legal shield to the telecommunications companies that broke the law by helping Mr. Bush carry out his warrantless wiretapping operation.
EFF has obtained a copy of the new FISA "compromise", and -- surprise! -- it contains blanket immunity for telecoms that helped the NSA break the law and spy on millions of ordinary Americans, just as we predicted yesterday. House Leadership intends to bring this bill to the floor for a vote tomorrow, so please contact your Congressperson now and tell them to vote NO on H.R.6304, the FISA Amendments Act of 2008.
UPDATE: EFF's initial analysis of the bill's immunity provisions.
Last April, Microsoft met with criticism when it announced that it would deactivate all music purchased from MSN Music. Customers rightly protested that the decision to pull the plug on the Digital Rights Management (DRM) servers that allow MSN Music customers to “reauthorize” music files would render their purchases useless
At the time, EFF announced an open letter to Microsoft, urging them to make things right with their customers by giving refunds or replacing DRM-crippled music, and by avoiding use of DRM in the future.
Now, Microsoft has responded to their customers’ concerns with a letter to customers that promises that the earlier deadline of August, 2008 will be not be enforced. Instead, the company will wait until 2011 to make a determination.
The dangerous and unconstitutional FISA bill coming up before the House Friday appears to have support, with Speaker Pelosi describing it as a "balanced bill".
The bill is far from balanced when it comes to immunity for telecoms, as the bill was written to guarantee dismissal -- a fact the Speaker's Republican colleagues are quite up front about:
House Minority Whip Roy Blunt, R-Mo., and Sen. Christopher Bond, R-Mo., said the only result that could occur from a court review of the lawsuits against the companies would be that plaintiffs would be prevented from pursuing the cases. ... "The lawsuits will be dismissed, and we feel comfortable that the standard of evidence that the law requires will be easily met," Blunt said.
The House of Representatives today has fallen down on the job. By passing the FISA Amendments Act (293-129, with 105 Democrats in favor), they voted to give this lame duck President an undeserved parting gift by passing immunity for telcoms that helped the President violate the Constitution by participating in the NSA's massive and illegal spying program.
While Speaker Pelosi and President Bush describe it as a "balanced bill" with "bipartisan support," the millions of Americans whose privacy rights have been violated by the President's illegal spying program seem to have been left out of the equation.
Today EFF released a revised white paper on Best Practices for Online Service Providers, an update of the 2004 OSP Best Practices white paper. In the white paper, EFF offers some suggestions, both legal and technical, for the best privacy practices for collecting, storing and disclosing data that balance the needs of OSPs and their users' privacy and civil liberties.
OSPs are vital links between their users and the Internet, offering bandwidth, email, web, and other Internet services. In the process of offering services, OSPs collect and store detailed information about their users and their user's online activities.
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 five of the ten patents on our Most Wanted list. We're proud to have tackled half of the list, but now we need your help to bust another.
A company called Seer Systems has a patent on a system for joining different musical data types together in a file, distributing them over the internet, and then playing that file.
We are especially interested in prior art relating to downloading and playing parts of "musical work files" in real time. One such example might be a system for streaming media files by taking the file one piece at a time and downloading the necessary sound files and musical data for that part before playing it and moving on to another section.
The Senate is once again arguing whether to pass The FISA Amendments Act, a deeply flawed and unconstitutional surveillance bill.
Tuesday evening, Senator Dodd of Connecticut clarified what's at stake:
This legislation includes provisions which would grant retroactive immunity to telecommunications companies that apparently have violated the privacy and the trust of millions of Americans by participating in the president’s warrantless wiretapping program. If we pass this legislation, the Senate will ratify a domestic spying regime that has already concentrated far too much unaccountable power in the president’s hands and will place the telecommunications companies above the law. ...
This morning, EFF Senior Staff Attorney Lee Tien testified in a Senate hearing on laptop searches and other privacy violations faced by Americans at the U.S. border. Lee's testimony [PDF] outlined the dangers of random and invasive searches of travelers' digital devices, and urged more congressional investigation and oversight.
Today's hearing comes as Americans are increasingly complaining about how the Department of Homeland Security searches laptops, cell phones, and other digital devices as they come home from overseas travel. Agents often confiscate the devices, copy the contents, and sometimes even provide a copy of the data to the Department of Justice -- even when the traveler is not suspected of criminal activity.
There have been rumors that the Senate's vote on final passage of the FISA Amendments Act might be delayed until after next week's Congressional recess. Anything could happen, as the Senate is simultaneously rushing to complete two other controversial bills — one to address the mortage crisis, and another to fund the Iraq war — as quickly as possible. At this moment, though, it still appears very likely that the Senate will vote on the bill sometime on Thursday. Many expect that the bill will pass if voted on this week, despite newspaper editorials from across the country condemning the so-called "compromise" bill.
EFF and others have long suspected that one reason the White House and its allies have fought for telecom immunity so fervently has been their fear that a judicial ruling on the legality of telecoms' participation would lead to a ruling rejecting the legality of the Administration's warrantless wiretapping program itself.
It's official: Thanks to overwhelming grassroots action, and the heroic efforts of Senators Dodd and Feingold, the Senate's vote on whether to grant phone companies immunity from the law for assisting in the President's illegal wiretapping program has been delayed until after July 4th Recess!
This is an unexpected reprieve for civil liberties and the rule of law. As recently as last night, the mainstream press was reporting that the immunity bill would see swift and uncontested approval. Senate Leaders emphasized that passing an immunity bill this week was one of their highest priorities. And yet, in the end, the bill simply wasn't as uncontested and noncontroversial as the pundits and politicans thought it was.
- Schwarzenegger Asks ISPs to Block Newsgroups
The California Governor and Attorney General have asked ISPs to jump on the newsgroup-blocking bandwagon -- an attempt to stop child porn that will likely block legitimate speech as well.
- Prince v. Tribute to Prince
A Norwegian tribute album featuring covers of Prince songs by various artists is the latest object of the musician's wrath.
- The Nation's First Tech Czar?
If Obama is elected President and follows through on a promise to appoint a Cabinet-level "tech czar", who would he choose?
The schedule for the Senate's return on July 8 allows for three amendments to be introduced to the FISA Amendments Act, which in its current form would grant immunity from the law to phone companies who engaged in illegal spying. One amendment, from Senators Dodd and Leahy, would strip immunity from the bill altogether. A second, from Senator Specter [PDF], would would allow the court to deny immunity if it found that the government's surveillance activities were unconstitutional.
EFF is particularly optimistic about the third, an amendment introduced by Senator Jeff Bingaman [PDF] of New Mexico and co-sponsored by Senators Specter and Casey, a sensible and bi-partisan proposal that could be a game-changer.
Thursday evening, Senator Reid officially delayed a final vote on the FISA Amendments Act until July 8. That gave us just twelve days — now, eleven — to change the political calculus and avoid a Congressional seal of approval on illegal wiretapping.
With the clock counting down, here are three tactics that could help change the game:
1. July Fourth Activism
It's especially ironic that Congress has picked Independence Day Recess to mark its decision to shred the Constitution. A Fourth Of July Parade could be an excellent leverage point to pressure politicians to stand tall for civil liberties.
- Tor Project Blocked in China -- Finally
After years of aiding those seeking anonymity and bypassing censorship, Tor is finally blocked by the Great Firewall of China.
- China's Overeager American Censors
"Practically every U.S.-owned search engine has caved to the Chinese government's demands that they censor political Web sites in China. But none of them seem to agree on just what sites need censoring."
- Pirate Bay to Fight Swedish Wiretapping Act
To offer VPN facilities to Swedish nationals and others.
There is a growing movement to surveil the drivers of cars — for insurance purposes.
One idea is that vehicle insurance premiums should depend on verifiable, periodic measurements of how far a car has been driven. The case for such premiums is strong: driving further clearly increases the risk of an accident, and "Pay As You Drive" premiums would allow (some) drivers to pay less for insurance; would allow insurance companies to make higher profits; and would reduce the congestion, greenhouse emission and traffic accident costs that each mile driven causes for society.