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EFFector - Volume 17, Issue 34 - 9/11 Commission Recommendations Carry Hidden Threat to Privacy, Freedom

EFFector       Vol. 17, No. 34       September 17, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 306th Issue of EFFector:


9/11 Commission Recommendations Carry Hidden Threat to Privacy, Freedom

Intelligence Reform May Be "Trojan Horse" for National ID System

There's a full head of political steam behind the 9/11 Commission's recommendations, and the press is focusing primarily on the effort to reform the intelligence community. Unfortunately, a closer look at the recommendations, and proposed legislation like the 9/11 Commission Report Implementation Act, reveals that they would do much more than implement intelligence reforms. The recommendations would also set in motion a dangerous and fundamentally flawed "security" plan: creating a system to tag and track US citizens using "standardized" identification. In other words, it paves the way for a national ID card system - something we at EFF strongly oppose.

National ID cards will not solve the problem of terrorism, just as they would not have prevented the 9/11 attacks. Many of the 9/11 hijackers had proper identification and were in the country legally.

Further, identification is not intelligence. Three of the 19 hijackers - Hani Hanjour, Saeed al Ghamdi, and Khalid al Mihdhar - made false statements on their visa applications that could have been proven to be false when they applied. A new national ID card would not fill these kinds of gaps in intelligence.

But the bad news doesn't stop there. The 9/11 Commission Report Implementation Act suggests that a national ID system would be part of an "integrated screening system" that would include "a range of security check points throughout the Nation's screening system," with access to centralized "government databases," and "biometric identifiers" (Section 602). Travel surveillance is also part of the plan, with the Department of Homeland Security (DHS) requiring commercial air carriers to provide the private passenger information to make it work (Section 703). It's not clear how the government would use the biometrics and travel patterns of nearly 300 million Americans to catch the small number of individuals worldwide who are planning terrorist attacks. What is clear is that the system would create fertile ground for constitutional violations and the abuse of private information.

"Congress rushed through the PATRIOT Act under enormous political pressure, and the public is paying for it with unnecessary damage to our privacy and constitutional freedoms. We can't afford to make the same mistake again," said Lee Tien, EFF Senior Staff Attorney. "The desire to improve the coordination of the intelligence systems should not be a Trojan horse for more incursions on civil liberties."

It's important that we speak out now against the stealth introduction of a national ID system. Follow the link below to let Congress know you support effective intelligence reform, not a system that would bring us even further toward a surevillance society for only the illusion of security.

Make your voice heard with the EFF Action Center:
http://action.eff.org/no_national_id

9/11 Commission Report Implementation Act of 2004:
http://govt-aff.senate.gov/_files/090704bill911commission.pdf

Travel/ID recommendations in the 9/11 Commission Report:
http://www.9-11commission.gov/report/911Report_Ch12.htm

Crypto-Gram: National IDs:
http://www.schneier.com/crypto-gram-0404.html

For more about national IDs:
http://www.eff.org/Privacy/Surveillance/nationalidsystem.html


Betamax Under Siege - Again

By Fred von Lohmann
EFF Senior Intellectual Property Attorney

The Senate Judiciary Committee, responding to the hail of brickbats that greeted Senator Hatch's (R-UT) "Induce Act," asked the US Copyright Office to propose alternative wording that would be more popular with the technology community. Here's the heart of what it came up with:

"Whoever manufactures, offers to the public, provides, or otherwise traffics in any product or service, such as a computer program, technology, device or component, that is a cause of individuals engaging in infringing public dissemination of copyrighted works shall be liable as an infringer where such activity: (A) relies on infringing public dissemination for its commercial viability; (B) derives a predominant portion of its revenues from infringing public dissemination; or (C) principally relies on infringing public dissemination to attract individuals to the product or service."

In other words, for all wireless and networked (e.g., "dissemination") technologies and services, the tried-and-true "Betamax" defense would be replaced with the new 3-part test in the paragraph above.

This reminds me of the bill introduced in 1906 at the behest of music publishers, which would have given them the exclusive right to make machines capable of reproducing sound. In essence, the Copyright Office is proposing that copyright owners get a new exclusive right over a certain subset of machines that are capable of "disseminating" copyrighted works.

If this isn't about using copyright law to squash disruptive technological innovation, I don't know what is. Transport yourself back to 1976, substitute the word "reproduction" in place of "public dissemination," and you would see the VCR and the cassette recorder banned. Today, because any effort to ban those kinds of private copying technologies would result in public outcry, the Copyright Office takes aim at the technologies of the future: wireless and networking.

Some try to justify this arbitrary line between past and future by arguing that "mass distribution is different." Of course, that's what the entertainment oligopolists said about "mass reproduction" and "mass broadcasting" back in the day. Only because they were not able to stop those technologies did they discover the new business opportunities that they enabled.

So let me tell it like it is: The Copyright Office proposal is profoundly and fundamentally anti-innovation. Were it to become law, it would be very bad news for creator and consumer alike.

For the original version of this piece online:
http://www.eff.org/deeplinks/archives/001900.php


EFF Supports Yahoo! in French Censorship Case

Files Brief to Stop Chilling Effect on US Speakers

California - EFF on Monday submitted a joint friend-of-the- court brief in Yahoo!, Inc. v. LICRA, a case that could have significant consequences for the future of free speech on the Internet.

LICRA, a French group dedicated to fighting Nazi propaganda, won a case in France against Yahoo! claiming that the company violated French law by making Nazi memorabilia and screeds available on its US website. Yahoo! sued in the Northern District of California for a declaratory judgment that the French ruling cannot be enforced in US courts because it would violate the First Amendment. Yahoo! won in the district court, but the Ninth Circuit reversed the ruling on the grounds that US courts have no jurdisdiction to decide the case.

EFF joined fellow amici in filing the brief to support Yahoo!'s petition for rehearing and "en banc" review of the Ninth Circuit's decision. While the decision focuses on the issue of jurisdiction, free speech on US websites hangs in the balance.

"If a foreign person or entity takes affirmative steps in a foreign court to force a US-based speaker to censor lawful, constitutionally protected speech aimed at US listeners, the US courts should and do have jurisdiction to protect the speech and vindicate the First Amendment protections afforded to both speakers and listeners," states the brief. "A foreign court judgment imposing significant daily fines on US-based speech that is perfectly lawful in the US can create a substantial chilling effect on the US speaker. [...] The chilling effect would be particularly acute for the many individuals and small organizations for whom the Internet is an indispensable means of reaching an audience but who lack the resources to participate in overseas legal proceedings."

Amicus brief in Yahoo!, Inc. v. LICRA:
http://www.eff.org/cgi/tiny?urlID=248
(EFF, PDF file)


Publish Globally, Censor Locally?

The Yahoo case isn't the only one to watch in the battle over restrictions to online speech. Below, a brief update on two important cases involving the effort to apply one region's speech regulations to the global Internet.

CDT v. Pappert
Last week, the Federal District Court in Philadelphia ruled that a state law requiring Internet Service Providers (ISPs) to block access to websites that allegedly host child pornography violates the First Amendment. In order to comply with the law, ISPs had been forced to block thousands of legal sites simply because they shared domain names or IP numbers with those identified by the Pennsylvania Attorney General as containing child porn. If, for example, one site on www.geocities.com was identified as containing child porn, then under this state law, countless other completely unrelated geocities sites containing no illegal porn also could be blacked out.

"The Pennsylvania law threatened to cut off access to more than a million perfectly legitimate websites," said EFF Staff Attorney Kurt Opsahl. "The judge's decision correctly recognizes that the First Amendment does not tolerate such a burden on protected expression."

For the ruling:
http://www.cdt.org/speech/pennwebblock/20040910memorandum.pdf

Nitke v. Ashcroft
This case, which challenges the obscenity provisions of the Communications Decency Act (CDA), will be heard in a New York US District Court on October 27.

Attorney John Wirenius, working pro bono with the National Coalition for Sexual Freedom, will serve as counsel for erotic photographer Barbara Nitke. Because the obscenity provisions of the CDA state that the legality of sexually explicit images will be determined by "community standards," Nitke could be sued in regions of the country where community standards differ from those in her native New York. She brought the case because she believes the vagueness of the "community standards" rule has a chilling effect on erotic expression distributed via the Internet.

No matter what the outcome of the October hearing, Nitke v. Ashcroft will almost certainly be appealed to the Supreme Court. Although the Supreme Court unanimously threw out the indecency provisions of the CDA in 1998, many analysts have expressed concern that the Court will not make the same decision with regard to the obscenity provisions, and will instead offer a restrictive definition of Internet "community standards." As a result, the outcome of this case could have a profound impact on what people are allowed to do and say on the Internet.

For more about the case:
http://www.eff.org/legal/cases/Nitke_v_Ashcroft/


BayFF Event - Join Us for "E-voting and the Upcoming Election" on Tuesday, October 12

Sometimes activism can be fun. Come join EFF at the 111 Minna Gallery in downtown San Francisco to talk about e-voting and the upcoming election, as well as share food and drink and listen to live music by talented local artist Samantha. This event is free and open to the public, so be sure to invite your friends and colleagues!

WHAT:
BayFF discussion: "E-voting and the Upcoming Election"

Democracy is government by the people, and the right to vote is critical to determining what each of us wants of our government. Nearly one quarter of American voters - more than 35 million people - will exercise that right using electronic voting (e-voting) terminals in this election. Unfortunately, due to equipment that has been hastily developed and poorly tested, your right to vote is in greater jeopardy than ever before. There are widespread reports of voting terminal failures, and growing concern about the (in)security of these machines is fueling fierce debate over how to ensure the integrity of our elections. EFF is working to ensure that votes are verifiable and to train poll workers about what to do when the machines fail. Come listen to our team leaders talk about the latest developments, and share your thoughts on how we can make sure that every vote is counted.

WHO:
Cindy Cohn, EFF Legal Director
Matt Zimmerman, EFF Staff Attorney
Ren Bucholz, EFF Activism Coordinator

Samantha - www.samanthamusic.com

WHEN:
Tuesday, October 12th at 7:00 p.m. Pacific Time

WHERE:
111 Minna Gallery
111 Minna Street
San Francisco, CA. 94105
Tel: (415) 974-1719
or contact Katina at EFF (415) 436-9333, ext. 129,
katina@eff.org

This event is free. Food and drink will be served (no host bar).

111 Minna Gallery is accessible via BART. Get off at the Montgomery station and use the exit marked 2nd and Market. Walk south on 2nd street for a block and a half, and take a right down the Minna Street Alley. Minna is between Mission and Howard.


Only 46 Days Until the Election - Register to Vote Now!

The election is only 46 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:


http://www.yourvotematters.org/EFF

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

miniLinks features noteworthy news items from around the Internet.

Free Samples: 3 Notes and Runnin'
Downhill Battle's latest bit of genius agitprop targets the ridiculous state of musical sampling law:
http://downhillbattle.org/3notes/

Law Lets Public Library Kick Out Patrons for Web Surfing
The ACLU is challenging the law on behalf of a man who was banned from the Hawaii State Library for visiting a gay and lesbian website:
http://www.eff.org/cgi/tiny?urlID=249
(AZCentral.com)

BBC Charter Opens the Gates to Cultural Renaissance
The BBC plans to make its entire archive, going back to the earliest days of radio and television, available online under a Creative Commons license. EFF's own Cory Doctorow submitted testimony to support the plan, calling it a "watershed moment" in the history of the BBC and the world:
http://www.eff.org/IP/BBC_CMSC_testimony.php

If We Told You, We'd Have to Kill You
The Ninth Circuit Court of Appeals has flatly rejected the government's attempt to bar plaintiff John Gilmore and his attorneys from reviewing the evidence in a case challenging the constitutionality of secret laws requiring airline passengers to show ID:
http://www.eff.org/Privacy/20040910_Gilmore_OrderReSeal.pdf

CD Lock-Down Technology: There Can Be Only One
That's Microsoft's plan, anyway. The company wants record companies to rally 'round its plan to create a digital dystopia for consumer rights:
http://www.theregister.co.uk/2004/09/16/ms_cd_copy_protection/

Lemley on the Economics of IP
Stanford law professor Mark Lemley on why intellectual property isn't the same as the tangible stuff:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=582602

TiVo, ReplayTV Agree to "Limits" on Relationship with Public
It was getting awfully cozy. Holding hands, watching movies every weekend - there was even talk about letting the public keep movies "forever." But then TiVo and Replay's on-again, off-again relationship with Hollywood began to heat up. Hollywood apologized for suing Replay into bankruptcy and made nice with TiVo. In the end, the thrill of that abusive relationship overwhelmed the companies' better judgment... and they broke the public's heart *again*:
http://www.siliconvalley.com/mld/siliconvalley/9616558.htm

Netting Free Music
And it's quality stuff, too! This NYT article surveys the free, legal offerings available on the Internet:
http://www.nytimes.com/2004/09/10/arts/music/10INTE.html
(Registration unfortunately required.)

Chicago Residents Wave Hello to Big Brother
The city recently installed 2,000 surveillance cameras throughout the city:
http://chicago.indymedia.org/newswire/display/45898/index.php

R.E.M. Guitarist Gives Away iPods Stuffed with Music
A meaningful gift on many levels:
http://www.eff.org/cgi/tiny?urlID=250
(Guardian Unlimited)

Nothing New Here, Move Along
It's only Acacia Research targeting even more companies in its lawsuit campaign to assert patent dominion over a broad range of technologies to stream audio and video over the Web:
http://news.com.com/2100-1032_3-5364023.html

Meanwhile, Back at the Post Office
EFF tacks up a downloadable version of our poster listing the Top 10 Most-Wanted Patents in our Patent-Busting Project - and guess who appears on the list?
http://www.eff.org/patent/wanted/patent_wanted_poster.pdf

Limousine Ride for Election Officials: $300
Knowing that it helped your voting-machine company win a $100 million contract: Priceless:
http://www.nytimes.com/2004/09/12/opinion/12sun2.html
(Registration unfortunately required.)

The Story of Your Life...
...may be digitally recorded and kept on file by the Pentagon - if you're a soldier in the Advanced Soldier Sensor Information System and Technology (ASSIST) program:
http://www.wired.com/news/privacy/0,1848,64911,00.html

RIAA Sued for Patent Infringement
>From the Department of High Irony: the recording industry heavies have been sued for infringing - and *inducing* the infringement - of a patent on P2P "spoofing":
http://www.eff.org/cgi/tiny?urlID=251
(TechNewsWorld)

MD Court Sides with Paperless E-voting
The state's highest court ruled that its Diebold voting machines - the subject of three critical security reviews - pass muster for the November election. On the very same day, Senator Barbara Mikulski (D-MD) cast a vote on a Diebold machine at a demonstration. It failed:
http://www.eff.org/cgi/tiny?urlID=252
(SiliconValley.com)


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