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EFFector - Volume 17, Issue 33 - Misguided Copyright Bill Moving Through Congress


EFFector - Volume 17, Issue 33 - Misguided Copyright Bill Moving Through Congress

EFFector       Vol. 17, No. 33       September 10, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 305th Issue of EFFector:

Misguided Copyright Bill Moving Through Congress

San Francisco, CA - The House Judiciary Committee has marked up and reported out H.R. 4077, the Piracy Deterrence and Education Act (PDEA). The measure is now ready for a vote by the entire House of Representatives. The Senate has taken no action on any companion bill.

The PDEA would impose criminal penalties on those who share more than 1,000 infringing files on a peer-to-peer network. Recent surveys by Ruckus Network show that the average college student who uses P2P file-sharing software shares 1,100 files. The legislation would also have the Department of Justice foot the bill for sending warning notices to 10,000 filesharers.

"Tens of millions of Americans continue to use P2P networks," said Fred von Lohmann, senior intellectual property attorney at EFF. "Turning college kids into criminals is not going to change that reality, any more than the 4,000 lawsuits against file-sharing music fans has. This is a business problem, not a FBI problem."

EFF has proposed a collective licensing solution that offers an alternative to criminalizing the behavior of millions of Americans.

MSNBC article: "House Panel Okays Copyright, Spyware Bills":

EFF white paper: "A Better Way Forward: Voluntary Collective Licensing of Music File Sharing":

EFF action alert to stop the PDEA:

EFF Files Brief in Email Privacy Case

Councilman Case Should Be Heard Before Full Court

Boston, MA - Last Friday, EFF submitted a friend-of-the-court brief in a case that will have a profound effect on the privacy of Internet communications.

The brief argues that US v. Councilman, previously decided by a panel of First Circuit judges, should be reheard by the entire First Circuit Court of Appeals. In the earlier panel decision, the court ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent from, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this is legal. As the panel itself stated in the ruling, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Co-authored by Orin Kerr and Peter Swire, law professors specializing in Internet privacy issues, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), and the American Library Association (ALA). Amici argue that a rehearing is necessary because the Councilman decision disrupts the traditional understanding of Internet surveillance laws, raising significant constitutional questions under the Fourth Amendment.

"This court decision has repercussions far beyond a single criminal prosecution," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "The panel decision effectively rewrites the field of Internet surveillance law in ways that Congress never intended. If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition against interception by a technicality in the way the messages are transmitted, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."

For this release:

Amicus brief in US v. Councilman:
(EFF, PDF file)

Washington Post article: "Court Limits Privacy of Email Messages":
(Registration unfortunately required.)

Log Not, Subpoena Not: No-Logging Policy Helps Indymedia Protect Free Speech

The freedom to publish anonymously has been critical to our democracy since the time of the Federalist Papers. Last week, Online Service Provider (OSP) Indymedia helped defend this freedom through a no-logging policy designed to protect the privacy and anonymity of its users and website visitors.

The Department of Justice served a grand jury subpoena to Calyx Internet Access, which hosts Indymedia's New York website, as part of an investigation into the posting of a list of delegates at the Republican National Convention - a list published on Indymedia websites as well as elsewhere on the Web. The investigation seemed intended to chill First Amendment-protected expression, but because they had nothing to disclose, Calyx and Indymedia were not chilled. Calyx was able to turn over all of the information it had - the email addresses of four Indymedia administrators - and avoid being called to testify before the grand jury. The Indymedia administrators, in turn, could rest assured that the organization's servers contained no further information for the investigation.

Indymedia adopted its no-logging policy at EFF's advice after it was targeted several years ago in an FBI investigation of the anti-FTAA protests in Seattle. As the organization's FAQ states, Indymedia sites are spread across many servers, and Indymedia does not log the identifying Internet Protocol (IP) addresses of website visitors. In addition, it offers anonymous and pseudonymous posting as well as posting associated with a registered email address, which it does record.

"Anonymity has always been essential to what Indymedia is trying to do, because we want to empower all citizens to make their own news and write about what they find to be important," said Indymedia administrator Brian Szymanski to Wired News. "We have whistle blowers, or victims of government harassment, and sometimes they need to be protected by anonymity."

For those who offer online services and are concerned about users' privacy and free speech but haven't yet adopted similar policies, EFF has prepared a road map - a set of legal and technical recommendations for appropriately limiting the computer logs you keep. Follow the links below to learn more and to read our white paper outlining "best practices" for OSPs aiming to safeguard private data and preserve the freedom of expression online.

EFF white paper: "Best Practices for Online Service Providers":

Wired article: "Feds Hunt Source of GOP Data":,1294,64808,00.html

For the original version of this piece online:

Maryland E-voting Update - the Good, the Bad, and the Ugly

A few weeks ago, we reported on a hearing in Schade v. Maryland State Board of Elections, et al., a court case that calls into question the legality of paperless voting machines under Maryland law, which requires paper ballots.

The bad news is that the judge denied the request that Maryland voters be given the option to vote on paper in the upcoming November election. It's a terrible decision, and the court had to ignore two esteemed security experts and embrace some pretty outrageous falsehoods to do it. For example, the ruling found that "all experts agree" that Direct Recording Electronic (DRE) machines are more secure than paper ballots, even optical-scan systems; that votes cast on DREs have been counted "accurately"; and that recounts have been "perfectly accurate."

"None of these things are true," said EFF Legal Director Cindy Cohn. "Expert reports generally indicate that optical-scan systems are the most secure. Moreover, as Michael Wertheimer testified, regardless of what future systems could do, the current Diebold system gets an 'F' in security. As to the assertion that DREs always count 'accurately,' EFF's amicus brief presents more than 20 instances in which, at best, this assertion is open to serious question. Finally, the statement that recounts have been accurate is stunning, given that DREs leave nothing to recount. They simply reprint the results that the machine tabulated in the first instance. That's not the same thing as a recount under any reasonable definition of the word."

The good news is that the hearing has pushed the state to adopt, and the court to endorse, a number of common-sense security measures, including "parallel" testing on election day, encrypting information as it passes between machines, changing passwords (they were previously all the same!), and taking steps to ensure the external security of the machines.

"These measures should have been adopted a long time ago, but it appears that pressure from the court case led the state finally to do so," said Cohn. "Now voting officials will have to face the judge if they fail to implement them."

The case is on the fast-track for appeal, with an emergency hearing scheduled before the Maryland Supreme Court for Tuesday, September 14. In the appeal, EFF will once again serve as primary author of an amicus brief to support security in electronic voting, joined by Common Cause, People for the American Way,, the Center for Constitutional Rights, American Families United, and VotersUnite!

For more about e-voting and the Maryland case:

Only 54 Days Until the Election - Register to Vote Now!

The election is only 54 days away. Are you sure your name appears on the voter rolls?

Every vote will be vital in determining the course that America takes in the future, but you can't vote if you're not properly registered. This year, millions of new voters are being registered nationwide. EFF has partnered with Working Assets to register voters for the upcoming election. Don't wait until the last minute to register - if you do, you may arrive at the poll on election day only to find that your name is not on the list! Click here to register to vote or update your registration now:

It's easy, it's quick, and when you register to vote or update your registration, Working Assets will make a donation to EFF. Thank you for all of your support and for taking a moment to help increase civic participation!


miniLinks features noteworthy news items from around the Internet.

Republicans Oppose National ID
From the official 2004 Republican Party Platform: "As tagging and tracking citizens is inconsistent with American freedom, we oppose the creation of a national identification card or system." We couldn't possibly agree more:

Canada Considers Broadcast Flag
Michael Geist gives his perspective on the move:
(Toronto Star)

Save Betamax by Calling Out the Induce Act
The folks at Downhill Battle want you to call Congress on the harm the Induce Act would cause to innovation, and they've made it easy with the "Save Betamax" campaign:

Gag-Happy Government Wants ACLU to Shut Up
The USA PATRIOT Act allows the government to issue "National Security Letters," which carry a gag-order for the recipient that prevents the disclosure that one has been received. But the DoJ has interpreted this to mean that the ACLU, in its work to examine how the letters are being (ab)used, can't publicly quote from published Supreme Court opinions or refer even vaguely to the circumstances of its case:

...And Arguments About Secret Law Kept Secret
EFF co-founder John Gilmore is suing the government over secret laws governing airport searches and ID requirements, but the Department of Justice wants to keep the everyone - even Gilmore's lawyers - in the dark about what the rules actually say:

"Lion" Bites Mouse
Disney lost the latest scuffle in a South African lawsuit charging that the entertainment giant is the main offender in exploiting "The Lion Sleeps Tonight," a song that was evidently copied note-for-note from a deceased migrant farm worker. Piracy indeed, Mr. Eisner:
(Herald Sun)

State of California Sues Diebold for False Claims
The state is joining a civil suit filed by two voting rights activists:
(Tri-Valley Herald)

More Independent Software Turns iTunes into P2P
Playground MyTunes Redux allows iTunes users to share song files with multiple computers, not just stream music:

Court to Hear First "Warspamming" Case
That long, ugly word means "finding an open wireless network and sending spam therefrom":

Why Grokster Rocks
The executive director of Harvard Law School's Berkman Center for Internet & Society explains why the Grokster opinion makes sense for the future of innovation:
(Boston Globe; registration unfortunately required.)

Patents Are Killing Software Innovation
So Martin Brampton argues in this fine op-ed:

Netflix to Download Movies to Your TiVo
We're pleasantly surprised that Netflix was able to get licensing permission for this neat little trick:

One Music Store to Rule Them All
Gates & Co. last week revealed MSN Music - the latest way to buy music that won't play on your iPod:
(Salon; registration or ad-view unfortunately required.)

...Unless You Get Back to Basics
Say, by burning your purchases to CD, then ripping them to an open format like MP3:


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