EFFector Vol. 17, No. 35 September 24, 2004
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 307th Issue of EFFector:
- Government to Demand Passenger Records for "Secure Flight"
- A New Hope for Patent Reform: Consumer and Public Interest Groups Ask Court to Take a Narrow View of Ambiguous Patents
- EFF Releases Quick Reference Guides to E-voting Machines
- Let the Sun Set on PATRIOT - Section 214: "Pen Register and Trap and Trace Authority Under FISA"
- EcoPhone: Recycle Your Cell Phone, Support EFF!
- BayFF Event - "E-voting and the Upcoming Election," Tuesday, October 12
- MiniLinks (16): WIPO 2.0
Government to Demand Passenger Records for "Secure Flight"
The Transportation Security Administration (TSA) this week announced the next steps for implementing "Secure Flight," the passenger-profiling system that will replace the highly controversial "CAPPS II" system. The upshot is that everyone who traveled domestically in June 2004 will now serve as a guinea pig for the new system, with the government ordering the airlines to turn over your personal records to match the information against terrorist watch lists. At the same time, TSA will examine whether using additional data about you aggregated in commercial databanks will aid in the passenger-screening process. If Secure Flight passes this "stress test" and gets the go-ahead from the government, TSA will proceed with the program.
If this sounds familiar, that's because it should. Plans for CAPPS II were scuttled over concerns about cost, effectiveness, and impact on privacy and civil liberties. Unfortunately, Secure Flight poses many of the same problems. For example, the watch lists currently in use have already been shown to be inaccurate; in a recent high-profile example, Senator Ted Kennedy was repeatedly misidentified as a suspected terrorist. Yet it remains unclear how individuals who are improperly flagged will be protected.
The bigger picture is even more troubling. As we noted
in last week's EFFector, there's a strong push in DC for
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" (see
). Needless to say, this doesn't bode well for travel privacy.
"TSA needs to offer solid proof that Secure Flight will protect people and their personal information," said Lee Tien, EFF Senior Staff Attorney. "Plus, we still don't have a good explanation of TSA's role in the scandals over JetBlue, Northwest, and other airlines that secretly handed passenger information over to the government. Without openness and accountability, passenger-screening systems are a civil liberties nightmare."
EFF is participating in government proceedings on the
system and will provide comments on the Privacy Act
System of Records Notice and the Information Collection
Request and Draft Order, which are due 30 days from
their publication in the Federal Register.
For the breaking news alert on the announcement:
Government documents on the Secure Flight test phase:
* Privacy Act System of Records Notice:
* Privacy Impact Assessment:
* Information Collection Request and Draft Order to
A New Hope for Patent Reform
Consumer and Public Interest Groups Ask Court to Take a Narrow View of Ambiguous Patents
Washington, DC - EFF, Public Knowledge, and Consumers Union, the publisher of "Consumer Reports" magazine, this week filed a friend-of-the-court brief with the US Court of Appeals for the Federal Circuit in Washington, DC, arguing that ambiguous patent claims should be invalidated and that claim terms should be interpreted as narrowly as possible by the courts to protect the public.
Currently, courts uphold patent claims unless they are deemed too ambiguous, and the courts interpret vague claim terms as broadly as possible. These rules often result in improper patents of uncertain scope and lead to overzealous threat letters and lawsuits brought by patentees that chill innovation and deter beneficial competition.
"Aggressive patent holders are using vague patent language to cause havoc in the software and Internet fields," said Jason Schultz, EFF staff attorney and organizer of EFF's Patent Busting Project. "We're asking the court to rein in these claims by limiting their scope to only those things clearly laid out in the patent itself."
"Placing clear limits on patents will provide much- needed protection for the public domain and create a fertile environment for technological growth," said Gigi Sohn, president of Public Knowledge.
In a recent example, Acacia Research sent more than 4,000 patent demand letters to universities and colleges across the nation, claiming its vaguely worded patents cover all known methods of streaming pre-recorded educational lectures over the Internet. Were the appeals court to rule that such vague patent claims are invalid or must be interpreted narrowly, the threatened universities and colleges could defend or dismiss these lawsuits with far greater ease.
Amici filed the brief in Phillips v. AWH Corporation following a request from the appeals court for industry and public opinions on several issues of current patent law. Joshua Sarnoff, counsel of record on the brief, said that "this may be the most important patent case ever decided. Claim meaning is the name of the game in patent law, and the Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society."
For this release:
Amicus brief in Phillips v. AWH Corporation:
EFF's Patent Busting Project:
EFF Releases Quick Reference Guides to E-voting Machines
San Francisco, CA - EFF has released the results of research conducted jointly with the Verified Voting Foundation and American Families United into the strengths and weaknesses of the most popular models of electronic voting machines. Organized into one-page quick reference guides, this research gives voters critical information about widely deployed machines, such as the Diebold Accuvote TS and the ESS iVotronic. In the guides, EFF takes users through a step-by-step process for using each model properly and lists problems people have had with the machines in past elections. The reference sheets represent one of the nation's first "Consumer Reports"-style analyses of several different types of e-voting machines.
"It's extremely important that people vote, despite any concerns that they have about new voting machines," said EFF Staff Attorney Matt Zimmerman. "The more people know about the voting machines they'll be using, the better prepared they'll be on election day."
It's estimated that one-third of the country will be using e-voting machines in the upcoming presidential election.
For this release:
"E-Vote Fears Soar in Swing States":
Register to vote today:
Let the Sun Set on PATRIOT - Section 214: "Pen Register and Trap and Trace Authority Under FISA"
This week marks the return of "Let the Sun Set on PATRIOT," our ongoing EFFector series explaining what's wrong with particular PATRIOT provisions and why they should either be repealed or allowed to expire. Today, we profile Section 214, which, in combination with Section 216, makes it easier for the FBI to monitor the private Internet communications of people who are not suspected of any terrorism or espionage activities.
Below is a brief synopsis of the profile plus a link to the complete analysis:
How Section 214 Changed the Law
Before PATRIOT, a special "pen-trap" order under the Foreign Intelligence Surveillance Act (FISA) was something government agents used to capture "non-content" telephone information, such as dialed numbers. Agents could only get a pen-trap order when the communications were likely to be either (1) those of an international terrorist or spy or (2) those of a foreign power or its agents relating to the criminal activities of an international terrorist or spy. PATRIOT 214 threw out this requirement. Now, any innocent person's communications can be monitored with a pen-trap so long as the FBI says it's "for" an intelligence "investigation."
While Section 214 lowered the standards for a pen-trap order, Section 216 expanded their scope. Unlike regular wiretaps authorized under much stricter standards, pen-traps aren't supposed to collect the actual content of your communications, such as what you say on the telephone. But Section 216 expanded the definition of a pen-trap to include devices that monitor Internet communications - without clarifying what portions of Internet communications are "content," requiring a full wiretap order, versus "non-content," which can be legally acquired only with a pen-trap order.
At the very least, this change means that the government can use a pen-trap to see the email addresses of people you're sending email to and the addresses of people who send email to you, along with the timestamp and size in bytes of each email. The FBI can also monitor the IP addresses of all the computers you interact with over the Internet and capture the IP addresses of every person visiting a particular website. Under the vaguely written statute, the government may even be able to capture the URL of every web page that you read. This kind of information conveys significantly more "content" than a telephone number.
Why Section 214 Should Sunset
The FISA court operates in total secrecy, hearing argument only from the Department of Justice. It does not publish any details about the surveillance it authorizes, nor does it publish any of its opinions. As a result, there's no way for citizens to know how often FISA pen-traps are authorized, whether and to what extent they're being used to spy on Internet communications, or how the court interprets the distinction between "content" and "non-content" when it comes to Internet communications.
This secrecy, along with FISA's lower standards for authorizing surveillance compared to those required in regular criminal cases, was originally premised on the assumption that the Executive Branch should be given extra leeway when investigating foreign threats to national security. Yet PATRIOT Section 214 completely eliminated the requirement that the target of the surveillance must actually be a foreign spy or international terrorist. Such unrestrained power to engage in secret surveillance of innocent citizens is unjustified and antithetical to a free society, as well as representing a serious threat to privacy and freedom of expression on the Internet.
For the complete analysis of Section 214:
For previous "Sunset" analyses:
Take action - tell Congress to review PATRIOT, not
EcoPhone: Recycle Your Cell Phone, Support EFF!
- Save on taxes
- Save the environment
- Help EFF
- Donate your old cell phone!
Remember your first cell phone - the one that weighed 2 pounds and barely got a signal? If you've managed to move on to something more compact and versatile, but your old phone is still functional, then please consider donating it to EFF. We've found a place that recycles old phones, and the more working cell phones we collect, the more funding we'll have for protecting your civil liberties. We'll be collecting phones until December 15, so bring your old cell to the next EFF event, drop it off at our office in San Francisco, or mail it to us at the following address. Be sure to include your contact information if you would like us to send you a thank-you letter for tax purposes.
Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
Thank you for your support!
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!
Note: For those of you participating in our EcoPhone fundraising campaign, bring your old cell phones to donate to the cause!
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.
Cindy Cohn, EFF Legal Director
Matt Zimmerman, EFF Staff Attorney
Ren Bucholz, EFF Activism Coordinator
Samantha - www.samanthamusic.com
Tuesday, October 12th at 7:00 p.m. Pacific Time
111 Minna Gallery
111 Minna Street
San Francisco, CA. 94105
Tel: (415) 974-1719
or contact Katina at EFF (415) 436-9333, ext. 129,
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.
miniLinksminiLinks features noteworthy news items from around the Internet.
Public interest groups and developing nations are endorsing a new direction for the World Intellectual Property Organization (WIPO), aimed at unlocking its considerable power to spur innovation, strengthen competition, and help humanity. Read the declaration below and email firstname.lastname@example.org to become a signatory:
"PATRIOT II" On Deck
The GOP hopes to revive the controversial bill by attaching it to the coattails of the 9/11 Commission Report:
(AP; registration unfortunately required.)
Beastie Boys, David Byrne, Others Release New CD
And check this out: it's *meant* to be copied/remixed/shared:
Hollywood Misfires at Linux Australia
The MPAA sent cease-and-desist notices to Linux Australia for providing access to two copyrighted movies: "Grind" and "Twisted." Only what Linux Australia actually did was provide access to a download of the Twisted framework written in Python, and Valgrind, a tool for developers to locate memory management:
Microsoft Would Like to See Your Registration, Sir
The OS giant is introducing a program that would require customers to provide proof-of-purchase in order to get security patches:
SCO No! Yet Another Open Source Lawsuit!
In eery copycat fashion, a small software company is suing companies that use open source software in which it claims to have exclusive rights:
Enormous Group of Technology Heavy-Hitters Oppose Induce
The list includes Intel, Google, Sun Microsystems, Yahoo, EarthLink, Verizon, the Institute of Electrical and Electronics Engineers (IEEE-USA), and Radio Shack. Still think it's just about file sharing, Senator Hatch?
More Flaws in Diebold Code
We're *so* relieved that we're not in charge of that company's PR:
GREAT song A+++++ WOULD LISTEN AGAIN!!!!
You guessed it: eBay will offer digital music downloads:
Microsoft - Net Radio Station K-O-P-Y
Microsoft is copying radio station playlist selections and broadcasting them sans DJ chatter - even using real station call letters to promote the material:
Inducing America to Give Up Innovation
Guy Kewney, a UK journalist, hopes that if the misguided Induce Act becomes law, the chill will remain within US borders - leaving companies in the rest of the world free to out-innovate us:
What the Next President Thinks About Tech Policy
PC Magazine provides answers from the Bush and Kerry on the PATRIOT Act, broadband, file sharing, and a host of other techie topics:
How the iTunes Pie Is Divided
This article claims that about $0.10 of each iTunes song goes to the artist:
Pretty Version of Cory Doctorow's DRM Talk
Our dear colleague Cory Doctorow gave a wonderfully written and received speech on digital rights management this year, and now the folks at "Change This" have turned it into a great-looking PDF:
$1 Billion to Turn Off Your TV
Your *old* TV - the government wants to use that money so you can get a new, spiffy, digital one:
EFFector is published by:
The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
Donna Wentworth, Web Writer/Activist
Membership & donation queries:
General EFF, legal, policy, or online resources queries:
Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements & articles may be reproduced individually at will.
Current and back issues of EFFector are available via the
To remove yourself from this mailing, please go to
To remove yourself from all mailings from Electronic Frontier Foundation, please go to