EFFector Vol. 17, No. 37 October 7, 2004
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 308th Issue of EFFector:
- Calling All Broadband Providers and VoIP Experts - Help Keep CALEA off the Internet!
- BayFF Event - "E-voting and the Upcoming Election"
- Help EFF Fight for the Freedom to Innovate - Give to the BnetD Defense Fund!
- FCC out of Our Digital Television Recorders!
- WIPO to Support Public Domain, Open Source
- Court of Appeals Revives Florida E-voting Lawsuit
- Join EFF for "Resisting Government Secrecy in a Time of Terrorism," October 8-9
- MiniLinks (9): Kodak Knocks Sun's Lights Out
Calling All Broadband Providers and VoIP Experts - Help Keep CALEA off the Internet!
Are you a broadband Internet provider? Do you work in the Voice over IP (VoIP) industry? Do you care about protecting the privacy and security of the Internet? If you answered "yes" to any of these questions, we'd love to hear from you.
The Communications Assistance for Law Enforcement Act (CALEA) forced phone companies to build snooping backdoors into their networks. The law was never intended to be applied to the Internet, but the FBI is petitioning the Federal Communications Commission (FCC) to change that. This month, the FCC is gathering public comments on a proposal to expand CALEA to cover broadband Internet access providers and VoIP companies.
This is a very bad idea, and here's why:
- We shouldn't have to pay for Big Brother: The FCC wants to force the broadband Internet access and VoIP industries and their customers to bear the considerable costs of purchasing and implementing surveillance-ready network technologies.
- We shouldn't restrict emerging technologies: Innovators will be forced to think inside the box of surveillance, stifling new development.
- Mandating security flaws is irresponsible: When the government requires networks or applications to be tappable, it deliberately introduces more points of vulnerability into the system.
If you agree with these points, and you represent or work for a broadband Internet access provider or VoIP company, please consider submitting comments to the FCC. Substantive comments from people in directly affected industries will resonate with the FCC, which is required to consider whether its proposed rule will encourage the development of new technologies. EFF's friendly lawyers will walk you through the process, and your involvement will help us build a strong record of public opposition to misguided laws like CALEA.
How to get involved:
Please send your contact info to Ren Bucholz at email@example.com with the word "CALEA" in the subject line.
We'll send you additional instructions within the next two weeks.
More about CALEA on the Internet:
The FCC Notice of Proposed Rulemaking:
BayFF Event - Join Us for "E-voting and the Upcoming Election," Tuesday, October 12
The next BayFF event is almost here! Come join EFF this upcoming Tuesday 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!
Details and directions:
Court to Rehear Email Privacy Case
Boston, MA - The First Circuit Court of Appeals decided Tuesday to rehear argument in a case that could have a profound effect on email privacy. Last month, EFF submitted a friend-of-the-court brief in the case, US v. Councilman, urging such a rehearing.
In the earlier decision, a panel of First Circuit judges ruled that an email service provider did not violate criminal provisions of the Wiretap Act by monitoring the content of users' incoming messages without their consent. However, the Wiretap Act is the same law that requires the government to get a wiretap order before intercepting emails, and the panel decision could be read to eliminate this requirement. As the panel itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."
"The First Circuit clearly understands the need to quickly reconsider the court's earlier ruling, which raised significant constitutional questions and threatened to disrupt the traditional understanding of wiretap law," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "Upon rehearing the case, the full First Circuit should recognize that the original decision rewrote the field of Internet surveillance law in ways that Congress never intended."
The original panel decision has been withdrawn pending the First Circuit's rehearing of the case, which will occur in December.
For the full release:
For the amicus brief in US v. Councilman:
Help EFF Fight for the Freedom to Innovate - Give to the BnetD Defense Fund!
Fair use was recently dealt a harsh blow by a Federal Court decision that held programmers liable for creating free software designed to work with commercial products. The court ruled that creating BnetD - open source software that provides a way for gamers to play popular Blizzard games online - violates the Digital Millennium Copyright Act (DMCA) and the company's end-user license agreement (EULA). According to the court, building alternative platforms for legitimately purchased software should be outlawed.
That's not good for innovation, and it's definitely not what copyright law is for. The three authors behind BnetD built something for free that added value to their lawfully purchased software. This kind of creativity shouldn't be stifled; it should be applauded.
If this decision is allowed to stand, other innovators will have to be even more wary of anti-competitive companies with hungry lawyers.
EFF is appealing the decision, and we need your help. Our legal work in this case is done for clients who can't afford representation, so we depend on people like you for funding. If you value technical innovation and balanced copyright law, please donate to the BnetD Legal Defense Fund today:
Thank you for your support!
FCC out of Our Digital Television Recorders!
Washington, DC - EFF this week joined eight other public interest organizations, including the American Library Association, Public Knowledge, and Consumers Union, to launch the first legal attack on the Federal Communication Commission's (FCC) broadcast flag mandate. The groups filed a brief with the US Appeals Court, DC Circuit, to challenge the FCC's authority to impose the broadcast flag regime.
The "flag" is a small amount of data included in a digital TV signal that gives instructions on how the media may be used by devices that receive it. Backed by groups like the Motion Picture Association of America (MPAA), the broadcast flag could prevent devices from making digital backups of media, or even stop a device from retaining what it has recorded for more than a set period of time. There is little doubt that the flag will be used to limit the lawful distribution, use, and backup of digital programs.
When the broadcast flag mandate goes into effect next year, it will be illegal to sell devices that can tune in digital television without imposing copy protection on the signal.
"This is a crucial case that will determine how much control the government and Hollywood will have over current and future digital media devices consumers love now and will in the future," said Gigi B. Sohn, president of Public Knowledge and co-counsel for the groups.
"Right now, you can put an HDTV tuner card into a PC and build a digital video recorder that lets you watch digital television as you choose. We shouldn't have to trade that freedom for government-designed TVs," said Wendy Seltzer, EFF staff attorney.
In their opening brief, the groups point out that the FCC has no authority to regulate digital television sets and other digital devices unless specifically instructed to do so by Congress. While the FCC does have jurisdiction over TV transmissions, transmissions are not at issue here. The broadcast flag limits the way digital material can be used after it has already been received. Ultimately, the groups argue, the broadcast flag is just a power play on the part of the content industry. It's another attempt by organizations like the MPAA to control the way people use their lawfully purchased media, with no regard for what fair use allows.
"Two years ago Congress passed a law allowing for use of copyrighted works for distance education," said ALA legislative counsel Miriam M. Nisbet. "Yet now the FCC through the broadcast flag would prevent schools from using an entire category of those works - high definition television programs - in distance education."
Filing the brief along with EFF, Public Knowledge, ALA, and Consumers Union were the Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, and Consumer Federation of America.
For the full release:
For the opening brief:
WIPO to Support Public Domain, Open Source
Geneva - The United Nation's (UN) World Intellectual Property Organization (WIPO) has adopted a "development agenda" that acknowledges the need for balance in worldwide policy on trademark, copyright, and patents. In the past, WIPO has been roundly resistant to attempts to balance the interests of copyright holders, who make up the majority of WIPO participants, and the public, which has never been represented at the meetings. Previous efforts to get WIPO to hold one-day information sessions on alternatives to copyright - such as the public-domain human genome database, the GPL software license that underpins GNU/Linux, and the Creative Commons project's millions of "some rights reserved" books, movies, songs, and images - have been firmly rebuffed, with major WIPO nations applying enormous pressure to see to it that the issue was never brought to the table.
Now, in the wake of the "Geneva Declaration" - a document calling on WIPO to work in the interest of all of its stakeholders, including the public - WIPO's General Assembly has adopted a "development agenda," a kind of lens of public-interest considerations through which the treaty-body will view all future activities.
The effort to get WIPO to officially acknowledge its stated mission of promoting creativity and "technology transfer" to the developing world was led by the Consumer Project on Technology (CPTech), with drafting assistance and support from EFF and several other like-minded organizations. CPTech and EFF are part of a burgeoning movement among non-governmental organizations (NGOs) that have started to attend and document the WIPO meetings, exposing the negotiations to the public eye.
"For years, WIPO has pushed to expand the scope and level of intellectual property rights and told developing countries that this would help their development," said CPTech Director James Love. "Today WIPO supported an entirely different approach, which emphasized open source software, public domain goods like the human genome, patent exceptions for access to medicine, the control of anticompetitive practices, and other measures that have been ignored by WIPO for years. It represents a change in culture and a change in direction for WIPO. Many in the WIPO Secretariat opposed this, and few thought it would prevail, but today we are moving forward, on a different footing and in a positive direction, and WIPO will never be the same."
"The growing presence of non-governmental pressure organizations like CPTech and EFF at WIPO's meetings has begun to take its toll," said EFF European Affairs Coordinator Cory Doctorow. "The ridiculous IP-at-any-cost position of WIPO has been laid bare and revealed for a sham. Now the organization is taking its first baby steps towards balance. In the coming months and years, the nonprofit presence at WIPO will broaden and deepen - we won't let them fool us any longer."
For this release:
Join EFF for "Resisting Government Secrecy in a Time of Terrorism," October 8-9
EFF is a proud co-sponsor of "Resisting Government Secrecy in a Time of Terrorism," a two-day conference taking place this Friday and Saturday at the UC Berkeley Graduate School of Journalism.
The conference, presented by the California First Amendment Coalition (CFAC), features a keynote talk with acclaimed investigative reporter Seymour Hersh and panel discussions with a number of experts exploring a wide range of topics, including "leak" investigations under the Homeland Security law and media coverage of the Iraq war. EFF's Kevin Bankston will moderate a panel on the Supreme Court's past term and its implications for national security and citizen's access to information.
While there is a registration fee for the conference, admittance to the keynote is free. To check out the keynote, come to UC Berkeley's Pauley Hall on Friday at 7:45 p.m., right after the presidential debate. Conference attendees will be able to watch the televised debate at 6:00 p.m. at a reception at the Graduate School of Journalism.
We hope you can join us!
miniLinksminiLinks features noteworthy news items from around the Internet.
Creative Commons Blows Up
In the very best sense, of course - the organization made it onto the pages of Newsweek:
RFID-Embedded Passports in the News
Security expert Bruce Schneier points out the dangers of RFID-enabled passports. We agree - and we'd like to keep them out of our driver's licenses, cash, and postage stamps, too:
China to Promote "Healthy" Computer Games
They're not talking about lan-parties that serve only wheat grass and tofu. The Chinese government plans to rate games on "pornography, violence, horror, social morality and cultural implications."
That Sounds Awesome
Pardon us, but we're in full geek-out mode over the setup that Robert Cringely describes in this column: a whole block running VoIP, Internet, and MythTV off the servers in one guy's basement. Plus, it's all legal in Canada!
Stanford Cracks Down on P2P
Students who share copyrighted files can lose their SUNet ID, making them a digital persona non grata on campus:
Kodak Knocks Sun's Lights Out
A US district court agreed with Kodak's claim that Sun Microsystems' Java programming language infringes on the company's rights, and next week Kodak will ask the judge for over $1 billion in damages:
(Democrat & Chronicle)
Canada Examines Cultural Deficit with US
Michael Geist argues that the deficit is best rectified by following the copyright policy example set by the UK, not its southern neighbor:
What a Difference a Domain Makes
...only three little letters:
Cybersecurity Czar Resigns, Citing Frustration
Amit Yoran privately admitted that the government isn't doing enough to address computer security vulnerabilities:
Sony Pulls Copy-Protected CDs from Market
Is it because they don't work and consumers hate them? Of course not! According to Sony, the company has decided to stop making hobbled CDs because "its message against illegally copying CDs...has widely sunk in":
Will RIAA Go Fishing for Grouper?
Grouper is a "small-world" file-sharing application that allows users to share with 30 friends, and its founders claim that it's legal:
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