Today, the Obama Administration released nine previously secret legal documents written by the Department of Justice's Office of Legal Counsel during the Bush Administration. The release includes two previously undisclosed OLC memoranda and seven previously undisclosed OLC opinions. According to the DOJ, "The two memoranda memorialized that certain legal propositions in ten OLC opinions issued between 2001 and 2003 no longer reflected the views of OLC and 'should not be treated as authoritative for any purpose.'" For example, the January 15, 2009 memo withdraws reliance on several Bush Administration opinions, including the opinion that the Fourth Amendment did not apply to domestic military operations.
Here is the list of the OLC documents released today:
It's hard to find many people who've worked as hard to create an open and transparent government as Carl Malamud. To name just a few of his recent accomplishments: He's convinced C-SPAN to license Congressional hearings under Creative Commons, worked to free California and Oregon state legislation from nonsensical copyright restrictions, and was instrumental in making the SEC's EDGAR database free and public.
If you look over his work and website, it's easy to see why people call him "The Rogue Archivist." But why should such important public services be the job of a so-called rogue? Shouldn't the government itself get behind these efforts?
In an October 23, 2001, Office of Legal Counsel memo released today, the Bush Administration concluded that "the Fourth Amendment does not apply to domestic military operations," including "intercepting electronic or wireless communications" by "employing surveillance methods more powerful and sophisticated than those available to law enforcement agencies." See Authority for Use of Military Force to Combat Terrorist Activities Within the United States at pp. 4, 18, and 25 (emphasis original).
Now the Obama Administration says that their privacy-protective step was just “an experiment." If so, it’s an experiment we hope they continue.
- Judge Orders Defendent to Decrypt Laptop
A federal judge in Vermont ordered a criminal defendant to provide his PGP passphrase so that prosecutors can examine his computer.
- Applying the 4th Amendment to the Internet
Orin Kerr presents some general principals for a technology-neutral translation of 4th Amendment principals from physical space to cyberspace.
- RIAA Layoffs
Is the coming "bloodbath" the beginning of the end for the organization?
- Social Networking and Criminal Justice
Change Congress' Lawrence Lessig points to a report from campaign contribution researchers MAPLight.org about H.R. 801, the terrible bill that would cut the public's open access to taxpayer-funded medical research. Lessig writes:
[T]he co-sponsors of this bill who sit on the Judiciary Committee received on average two-times the amount of money from publishing interests as those who haven't co-sponsored the bill.
Recently, there was a minor scandal when TechCrunch accused Last.fm of turning over information — the identities of people listening to copies of a leaked U2 album — to the RIAA. Last.fm issued a scathing denial of these allegations, and it's good to hear that the site hasn't turned into a worldwide music surveillance system. Not on purpose, that is.
Thanks in part to feedback from EFF, Google has chosen to take a strong and public stand on what legal privacy protections should apply if the government comes calling for the location data collected by Latitude, Google’s new cell phone-based friend-finding service. Google has decided to match the policy for dealing with law enforcement demands first adopted by its friend-finding competitor Loopt after consultation with EFF, a policy which relies on the strongest possible legal arguments for protecting users’ location privacy. The gist of the Latitude and Loopt policies? “Come back with a warrant.”
Two weeks ago, the Irish music industry's trade body, the Irish Recorded Music Association (IRMA), wrote to all Irish ISPs — and, apparently accidentally, many other unrelated Internet companies — requiring that the ISPs instigate a "three strikes" policy with their customers, and universally block sites that IRMA felt were inappropriate for Irish consumers, such as the Pirate Bay. IRMA gave ISPs seven days to provide a response.
Electronic Frontier Finland to Fight Business Snooping Law
The so-called "Lex Nokia", which allows businesses to monitor their employees' net traffic, passed this month, but EFI vows to fight on.
German Court Rules Current E-Voting Unconstitutional
The 2005 election, which used electronic voting, will stand, but the court says that the current e-voting machines have shortcomings which prohibit their use in future elections.
GikII Hits Sydney and Amsterdam
The geek law conference, which ponders the intersection of the law and new territories like MMORPGs, robotics, and fanfic, visits Australia and Holland this year.
Seer Systems, Inc. and Stanley Jungleib have issued a written litigation threat to EFF over statements made as part of EFF's Patent Busting Project. EFF responded today, noting that its discussions of Seer and Jungleib were protected by the First Amendment. Both letters are attached below.
The letter arrived in the wake of the Patent and Trademark Office granting EFF's Request for Ex Parte Reexamination a Seer Systems patent on December 31, 2008. EFF had filed for a reexamination of Seer Systems' Patent No. 5,886,274 in October 2008, and the PTO found that the reexamination request raised "a substantial new question of patentability." We'll let you know what happens next.
- Whitehouse.gov Continues YouTube Use
The White House appears to have ended its "experiment" with hosting its own videos, and has returned to using YouTube. Will user info be harvested for Google's targeted advertising?
- Court Tosses Gibson's Guitar Hero Suit
Gibson Guitar's patent infringement suit against the Guitar Hero game was thrown out of court as "frivolous."
- Senator's Donor Data Leaked
Wikileaks claims that the private information of donors to Minnesota Senator candidate for US Senate Norm Coleman's campaign was made available on the Internet in January.
Even as it attacks DRM on music, Apple is continuing to add more DRM to its own hardware (we recently documented all of Apple's various hardware DRM restrictions). The latest example is the new iPod Shuffle. According to the careful reviewers at iLounge, third-party headphone makers will have to use yet-another Apple "authentication chip" if they want to interoperate with the new Shuffle.
On his first day in office, President Obama took the advice of EFF and other nonprofits, ordering federal agencies to share more information with the public — particularly emphasizing openness in response to Freedom of Information Act (FOIA) requests. This is a great first step, but we need your support to make sure it becomes a reality.
As part of EFF's celebration of Sunshine Week, we're providing a list of missing documents related to the National Security Agency’s warrantless wiretapping program. As a result of various Freedom of Information Act lawsuits and Congressional investigations, the government has provided information about the existence of various memoranda and other documents that are responsive to requests for information about the NSA Program. News media reports and books have revealed the existence of additional documents. We’ve combed through a wide variety of sources, and created a list of known NSA surveillance documents that have yet to see the sunshine. To provide some context, we have also included a few released documents in the list.
Yesterday, we published a list of missing documents related to the NSA warrantless surveillance program as part of EFF's celebration of Sunshine Week, and began to analyze what some of these missing documents might be.
Today, we turn to a document known as OLC 62. According to a declaration filed by Deputy Assistant Attorney General Steven Bradbury:
OLC 62 [is] a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.
Former CNET blogger Chris Soghoian has produced some of the best coverage on the issue of privacy for users of government websites. His work on the use of YouTube cookies and other tracking technologies on whitehouse.gov brought public attention to the issue, and inspired EFF to get involved.
Earlier this week, we published a list of missing documents related to the NSA warrantless surveillance program as part of EFF's celebration of Sunshine Week, and began to analyze what some of these missing documents might be.
Today, we continue by examining the context surrounding an intriguing 2002 memo known as OLC 129. According to a declaration filed by Deputy Assistant Attorney General Steven Bradbury:
Anyone that has attempted to keep a close eye on the work of Congress has experienced the frustration of seeing attempts to sneak new language into a bill hours before a vote, or, as we saw often in the fight against the FISA Amendments Act, seeing legislators disappear behind closed doors during critical moments of a debate. Recently, we watched carefully during the stimulus bill debate for a rumored amendment seeking to allow ISPs to apply copyright filters to customers' Internet connections.
Attorney General Eric Holder today issued new guidelines (PDF) on federal agency implementation of the Freedom of Information Act (FOIA). The guidelines were issued pursuant to a directive issued by President Obama on January 21, his first full day in office. Like the Obama directive itself, the Holder guidelines express strong support for government transparency and establish a presumption in favor of disclosure of information requested under FOIA.
For our final post of the week, we looking at the context of a series of documents from the fall of 2004, right around the time that the Bush Administration learned that the press had learned of the warrantless wiretapping program.
As we've discussed previously, Choruss is the name of the new entity, backed by three major record labels, that is interested in granting blanket licenses to universities (and someday residential ISPs) to authorize the music swapping (on P2P and otherwise) that has become a fact of digital life. As a big fan of voluntary collective licensing, EFF is following the development of Choruss closely and with great hopes. At the same time, there are many devils in the details.
Fortunately, the public debates about Choruss (which is still a work in progress) have begun, with those on both sides contributing valuable thoughts about the advantages and disadvantages of Choruss (or any system like Choruss):
The lawsuits between Shepard Fairey (creator of the iconic tricolor Obama "Hope" poster) and the Associated Press have an interesting legal wrinkle that is worth examining: AP claims that Fairey violated the Digital Millennium Copyright Act (DMCA) in the creation of the famous poster.
Wednesday, EFF Staff Attorney Corynne McSherry will be testifying at the Federal Trade Commission's (FTC) town hall meeting on digital rights management technologies, or DRM. After years of observing DRM's development, suing Sony for its destructive SecuROM DRM, defending free speech for researchers and bloggers, and speaking out against DRM's use, EFF's stance is quite clear: DRM is harmful to consumers, it undermines competition and innovation, and unnecessarily preempts users' fair uses of copyrighted content -- all while making no appreciable dent in "digital piracy." In fact, generally the only ones who are inconvenienced by DRM are legitimate customers.
Earlier this week, reports that ISPs were going to be cooperating with the RIAA's "three strikes" plans triggered alarm bells. Three-strikes proposals to kick customers off the Internet for alleged file-sharing have struggled to find acceptance across the world, so it seemed unusual for American ISPs to be contemplating plans that would result in the termination of paying customers. Major ISPs must have seen the storm clouds of user dissent brewing as well, as AT&T and Comcast quickly issued emphatic denials to the rumors that they were interested in becoming IP enforcers for copyright holders.
The recording industry has been stridently preparing for victory in their battle to double the term of sound copyright in the EU. But their campaign has hit an unexpected hitch -- individual governments among the EU member states think their demands overstep the mark.
The Committee of Permanent Representatives, or COREPER, is a closed meeting of senior officials from European Union member countries. Part of its job is to negotiate a consensus before votes are taken by senior politicians from each state at the Council of Ministers (the Council of Ministers is the voice of the national state at the EU; it shares power with the EU's own executive, the Commission, and the European Parliament).