EFFector Vol. 17, No. 42 November 19, 2004
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 313th Issue of EFFector:
- Action Alert: Call for Independent Testing of E-voting Machines!
- EFF Fights for Justice at WIPO
- Public Interest Groups Support ISP in Protecting User Privacy
- EFF Continues Push for Access to Secret Court Order in Indymedia Seizure
- EFF Urges FCC Not to Mandate Surveillance Regime on the Internet
- Anti-spam Measures Block Free Speech
- Nitke v. Ashcroft Trial Highlights Difficulty of Applying "Community Standards" to Online Speech
- EFF Seeks Detail-Oriented, Can-do Intake Coordinator
- MiniLinks (11): "Music Is Not a Loaf of Bread"
Action Alert: Call for Independent Testing of E-voting Machines!
On November 2, voting machines in many states - both "red" and "blue" - had problems that led thousands of citizens to call a national voter protection hotline. EFF and the Verified Voting Foundation (VVF) were at the other end of the line, and we are very worried about what we heard. In several states, voters who chose one presidential candidate were presented with confirmation screens that listed another candidate's name. In others, machines crashed and were rebooted repeatedly, but nobody knows whether votes were lost. And the list goes on.
There is no way to ensure that these problems are fixed until these machines are independently tested. But we need your help to do it. Election officials are already trying to sweep these problems under the rug. EFF has written eight detailed letters to the counties where these problems were most pronounced, and now it's time to turn up the public pressure. Add your voice to our petition, and when 10,000 people have signed it, we will deliver a copy to each of our target counties.
The election may be over, but it's not too late to make a difference for our democracy. Take a stand for election intregrity today!
EFF Fights for Justice at WIPO
"Pseudo Copyright" for Broadcasters Will Harm the Global Public Interest
Geneva - This week, the World Intellectual Property Organization (WIPO) held a committee meeting to debate the merits of its proposed "Treaty on the Protection of Broadcasting Organizations." EFF was there to urge delegates to reject aspects of the treaty that would impoverish the public domain and thwart innovation.
As part of this effort, EFF European Affairs Coordinator Cory Doctorow presented a letter to the committee on behalf of 20 technology companies and organizations that oppose including new webcasters' rights in the treaty.
"This coalition shatters the illusion that there is a technology consensus on this issue," said Doctorow.
The new pseudo-copyright for broadcasters would harm the public in a number of ways, including curtailing the ability to archive news footage or re-use broadcast material that is in the public domain. EFF joined several other non-government organizations (NGOs) in proposing an alternative draft of the treaty - one that targets the problem of signal theft rather than adds new rights.
Doctorow also spoke about how digital rights management (DRM) technologies hinder technological progress. The proposed treaty would add DRM provisions for broadcasters similar to those the much-criticized US Digital Millennium Copyright Act (DMCA) gives to copyright holders.
In October, WIPO made a positive move by adopting a "development agenda" proposed by a number of developing countries and NGOs. This agenda makes explicit the organization's responsibility for considering the social and economic impact of its decisions. Doctorow urged the organization to apply the public-interest principles outlined in the agenda to its consideration of DRM.
Finally, Doctorow "live-blogged" the meeting at EFF's
Deep Links weblog, bringing what was once insider-only
information before the public eye.
For the original breaking news item:
Letter from 20 technology companies:
EFF's statement on the DRM provisions in the treaty:
WIPO's proposed "Treaty on the Protection of
NGO alternative draft of the treaty:
EFF's Deep Links weblog:
Public Interest Groups Support ISP in Protecting User Privacy, Due Process Rights
Georgia - EFF, Public Citizen, the ACLU, and ACLU Georgia filed a friend-of-the-court brief this week supporting Cox Communications, Inc.'s efforts to protect the rights of its customers. Cox moved to quash a subpoena from several record companies seeking the identities of unnamed Cox subscribers. Cox does not provide Internet service in Georgia, where 100 "Does" were sued.
The amicus brief points out that it is unfair to force people living outside of Georgia to come to Georgia to defend their rights and also that it is unfair for the record companies to indiscriminately lump together 100 people in the same lawsuit simply for convenience.
"Cox is taking an important step to protect the privacy of its customers," said EFF Staff Attorney Wendy Seltzer. "It's a basic matter of due process that Internet users should not have to seek counsel across the country in order to protect their right to anonymous speech."
EFF, Public Citizen, and the ACLU have joined in several briefs in similar cases arguing that due process must not be given short shrift in the record industry's lawsuit campaign against file sharing.
The motion picture industry has begun to file copycat suits across the country that are similarly flawed.
For this release:
Amicus brief in Arista Records, Inc. v. Does 1-100
EFF Continues Push for Access to Secret Court Order in Indymedia Seizure
Government Claims Need for Secrecy, Rebuffs Call for Open Access
San Antonio, TX - EFF this week filed a reply brief in a federal court in Texas supporting its motion to unseal a secret court order. That order had led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists.
EFF filed its reply after the United States Attorney's Office in San Antonio, Texas, filed an opposition brief urging the federal court to refuse EFF's request to unseal. The opposition brief argued that secrecy was required to protect "an ongoing criminal terrorist investigation" and that the confidentiality provisions of a Mutual Legal Assistance Treaty (MLAT) trumped the rights of Indymedia in this case.
This marks the first time that the federal government has formally admitted to the secret order's existence. In its reply brief, EFF reminded the government that treaties are limited by the Bill of Rights, including the First Amendment right of access to court proceedings.
While the government has so far refused to identify the foreign country that initiated the request, language quoted in the government brief matches a US MLAT treaty with Italy. Morena Plazzi, a deputy public prosecutor in Bologna, admitted that she requested server logs from Indymedia, but denied requesting a seizure. Rackspace Managed Hosting, which housed the servers in its UK office, has refused to speak, citing a government gag order.
"There are serious questions about whether the government or Rackspace overreached in responding to Italy's request," said Kurt Opsahl, EFF Staff Attorney. "The public needs to see the order so we can understand what went wrong and take steps to prevent this unconstitutional silencing of protected speech from happening again."
For the full press release:
For EFF's reply brief:
For background on the Indymedia seizure:
EFF Urges FCC Not to Mandate Surveillance Regime on the Internet
EFF filed comments last week with the Federal Communications Commission (FCC) objecting to the Commission's plan to expand the reach of a law that forces communications service providers to build surveillance backdoors into their networks.
Passed in 1994, the Communications Assistance to Law Enforcement Act (CALEA) forced telephone companies to redesign their network architectures to make wiretapping easier. It expressly did not regulate data traveling over the Internet. But earlier this year, law enforcement agencies petitioned the FCC to expand CALEA's reach to cover broadband providers so that it would be easier to tap Internet "phone calls" via Voice over Internet Protocol (VoIP) applications such as Vonage, as well as to listen to Internet "conversations" taking place via instant messaging (IM) programs like AOL Instant Messenger (AIM).
"Law enforcement already has the legal and technological means to access communications on the Internet," said EFF Staff Attorney Kurt Opsahl. "Expanding CALEA to cover broadband communication is not only unnecessary, it will retard innovation while depriving people of their privacy and security on the Internet."
For the full press release:
For EFF's comments in the FCC proceeding:
More about CALEA:
Anti-spam Measures Block Free Speech
EFF White Paper Reports on Collateral Damage to Free Expression in the Fight Against Spam
San Francisco, CA - EFF last week released a white paper describing the effects of anti-spam technologies on free speech. "Noncommercial Email Lists: Collateral Damage in the Fight Against Spam" focuses on how groups running noncommercial email lists are being harmed by anti-spam techniques. The paper grew out of EFF's efforts to help MoveOn.org and other groups deliver email messages in the face of barriers that are aimed at stopping spam but that also stop wanted messages.
"When tools designed to prevent unwanted email also prevent wanted email from being delivered, or when anti-spam tools favor well-funded speakers over others, something fundamental to the health of Internet communication has been broken," write co-authors Cindy Cohn and Annalee Newitz in the introduction.
The paper goes on to explain how anti-spam technologies, such as blocklists, server-side filtering, bonded sender programs, and email authentication schemes like Sender-ID and DomainKeys, are often misused. It also provides Internet Service Providers (ISPs) and other companies, groups, or individuals that handle email with "best practices" recommendations to keep legitimate email from being trashed.
For the full press release:
EFF white paper: "Noncommercial Email Lists: Collateral
Damage in the Fight Against Spam":
Nitke v. Ashcroft Trial Highlights Difficulty of Applying "Community Standards" to Online Speech
New York-based erotic photographer Barbara Nitke's challenge (www.BarbaraNitke.com) to the obscenity provisions of the Communications Decency Act (CDA) went to trial in Federal court in Manhattan at the end of October. EFF filed two friend-of-the-court briefs in the case - one to argue that the challenge should be heard, and the other to warn the court that the government-coerced use of "geolocation" technology to comply with the law runs headlong into a wall of Supreme Court cases protecting the right to speak and read anonymously.
While the landmark 1997 Supreme Court case of Reno v. ACLU struck down the CDA's indecency provisions, in her lawsuit Nitke argues that the law's surviving obscenity provisions are likely to chill a substantial amount of protected speech and are therefore overbroad.
The key legal conundrum is how the Internet fits with the "contemporary community standards" prong of the 1973 Miller v. California test for deciding what is and isn't obscene. Such communities are defined by geography - the point was to avoid judging speech in Manhattan by the standards of Tupelo, and vice versa - but websites don't have geographical boundaries. The obvious danger is that speech on the Internet will be judged by the standards of the least tolerant community.
EFF submitted our first amicus brief supporting Nitke in 2002, when the government tried to get her case dismissed. The court - a special three-judge panel for the Southern District of New York (SDNY) - unanimously agreed with Nitke and EFF that the plaintiffs there must be given an opportunity to prove that the CDA is overbroad.
Last month, the case came to trial to resolve a number of disputed factual matters. The two-day trial featured testimony by expert witnesses including UK security expert Ben Laurie and EFF Pioneer Award Winner Seth Finkelstein, both of whom testified that trying to determine the true physical locations of Internet users is both difficult and costly.
EFF Staff Technologist Seth Schoen attended the trial.
"The government suggested that Nitke censor her website using geolocation technology to avoid 'sending' controversial material to jurisdictions thought to be conservative," reports Schoen. "But the experts showed that this kind of self-censorship is not practical for Barbara Nitke and other people like her."
The government responded by arguing that it's possible to find out where at least some website visitors reside - whether by using admittedly unreliable technical means or by requiring web users to submit registration postcards through the US mail before gaining access to a controversial site.
"The government did not try to rebut most of the testimony given by Ms. Nitke and the other witnesses for the plaintiffs," adds Schoen. "Instead, it mostly fell back on legal arguments. The government admitted that the CDA may burden and intimidate speakers, but it said these burdens were allowed by earlier Supreme Court precedent."
At the request of the plaintiffs and the court, EFF submitted, post-trial, our second amicus brief in the case. We argue that the CDA is unconstitutionally overbroad and the government's speculative suggestions of visitor-and location-identification schemes will not cure that overbreadth; indeed, such schemes unconstitutionally abridge the right to read anonymously.
Nitke is represented pro bono by First Amendment attorney John Wirenius. The National Coalition for Sexual Freedom (NCSF) is a co-plaintiff in the declaratory judgment action.
EFF post-trial amicus brief:
Nitke v. Ashcroft case archive:
NCSF press release on the trial, annotated with links
by expert witness Seth Finkelstein:
EFF Seeks Detail-Oriented, Can-do Intake Coordinator
EFF is seeking a full-time Intake Coordinator to start immediately. Environment is fast-paced, work is cutting edge, staff is hardworking yet laid back and friendly. Job responsibilities include answering the telephones, answering general email, doing legal case intake, filing, data entry, helping with membership mailings, and all-around organizational support. Ease with using computers and the Internet is essential. Familiarity with (and, preferably, passion for) Internet civil liberties issues is also required.
Salary at nonprofit scale and includes benefits package. This is a new position.
To apply, send a cover letter and your resume to firstname.lastname@example.org. We request that you send these materials in a non-proprietary format, such as an ASCII text file. No phone calls please!
miniLinksminiLinks features noteworthy news items from around the Internet.
Poland Pulls Support for EU Patent Directive
According to the Polish government, the current draft is too mushy on the patentability of software programs; it wants a bright line that bans the practice:
Hollywood Drops Dime on Hundreds of P2P Users
The studios were evidently wowed by the *increase* in file sharing after the RIAA's lawsuits; they've begun to try to emulate that success:
"Music Is Not a Loaf of Bread"
Jeff Tweedy, frontman of the amazing, future-friendly band Wilco, talks to Xeni Jardin about digital music:
Microsoft Keeps Cracked Xboxes Off Net
And Halo 2 fans in the hardware-hacking community are bereft:
Bad Copyright Law: Jumping on the Omnibus
Congress is considering an enormous patchwork copyright bill that combines a number of the year's most offensive proposals, including increased jail time for copyright infringement:
Public Knowledge action alert to oppose the bill:
Perfect 10 Loses Tussle with Credit Card Giants
The adult entertainment company sued major credit card companies because they processed transactions for sites that offered unauthorized copies of Perfect 10's naughty pictures:
The Economist on Patent Reform
Very nice piece on the problems with the modern patent system:
The tiny chips will soon be included in those extra-large druggist's bottles, and they're well on the way into other consumer goods:
(Registration unfortunately required.)
Wal-Mart Special: 460 Terabytes of Customer Data
That's enough data to fill both of the Internets:
(Registration unfortunately required.)
Lexmark Makes Spyware?
The printer manufacturer seems to be installing monitoring software on users' computers:
Diebold Pays $2.6 Million in Settlement
For misleading California counties into purchasing shoddy equipment:
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