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EFFector - Volume 17, Issue 7 - Court Overturns Ban on Posting DVD Descrambling Code


EFFector - Volume 17, Issue 7 - Court Overturns Ban on Posting DVD Descrambling Code

EFFector       Vol. 17, No. 7       March 2, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 279th Issue of EFFector:

Court Overturns Ban on Posting DVD Descrambling Code, Finds Free-Speech Violation

No Evidence DeCSS Was a Trade Secret When Bunner Published

San Jose, CA - A California appeals court on Friday overturned as unconstitutional a 1999 trade secret injunction against Andrew Bunner that prohibited him from distributing the DeCSS DVD decryption computer code. The court found there was no evidence that the Content Scrambling System (CSS) encryption technology used in DVD movie disks was still a trade secret by the time that Bunner posted DeCSS code on his website. The Court therefore held that the injunction violated Bunner's constitutional free-speech rights.

"We are thrilled that the Appeal Court recognized that the injunction restricting Andrew Bunner's freedom of speech was not justified," said EFF Staff Attorney Gwen Hinze. "The Court's ruling that there was no evidence that CSS was still a trade secret when Bunner posted DeCSS vindicates what we have said all along: DeCSS has been available on thousands of websites around the world for many years."

"This long-delayed but gratifying victory sends a strong message to those who would try to misuse intellectual property laws and corporate power to stifle free speech on the Internet," said Richard Wiebe, a San Francisco attorney who represents Bunner along with EFF. "The Court of Appeal correctly recognized the obvious conclusion that information that is in the public domain and that has been republished for years around the world can't be a trade secret."


EFF Speaks on Privacy Perils of RFIDs in Libraries

San Francisco, CA - EFF Senior Staff Attorney Lee Tien will speak this Thursday, March 4, at a panel discussion addressing the threats to privacy from the use of Radio Frequency Identification Tags (RFIDs) in libraries.

RFIDs are tiny electronic devices designed to enable the automatic identification and tracking of goods and products. However, RFIDs also make it possible to track people and their activities.

"Adopting RFID technology without strong privacy safeguards is a bad idea," said Tien. "Everyone should have the right to move around freely without facing automatic tracking of their movements."

In addition to EFF's participation, the panel will include representatives from the ACLU, libraries and others addressing legal, public policy and technical issues associated with RFID.

Event: RFID Forum - A panel discussion on Radio Frequency Identification (RFID) and its applications for libraries, pros and cons
Time: 6:00 - 8:00 p.m., Thursday, March 4, 2004
Location: Main San Francisco Library, 100 Larkin Street (at Grove)
Lower Level, Koret Auditorium (use library's Grove Street entrance)
San Francisco, CA


Let the Sun Set on PATRIOT - Section 207:

"Duration of FISA Surveillance of Non-United States Persons Who Are Agents of a Foreign Power"

Welcome to part three of "Let the Sun Set on PATRIOT," an EFFector series on the battle to let some of the most troubling provisions in the USA PATRIOT Act expire, or "sunset." Each week, we profile one of the 13 provisions set to expire in December of 2005 and explain in plain language what's wrong with the provision and why Congress should allow it to sunset. This week we look at section 207, which extends the duration of secret government wiretap orders and search warrants.

What Section 207 Does

Section 207 makes wiretap orders and physical search warrants issued by the FISA court last longer. The FISA court is a secret panel of judges established by the Foreign Intelligence Surveillance Act of 1978 to authorize government surveillance in foreign intelligence and terrorism investigations.

How Section 207 Changed the Law

Prior to PATRIOT, FISA wiretaps had a maximum duration of 90 days and could be extended in 90-day increments. PATRIOT now allows a maximum duration of 120 days, with one-year extensions available.

Also prior to PATRIOT, FISA warrants for physical searches and their extensions were good for no more than 45 days. Now the warrants are good for up to 120 days, with extensions for up to one year.

Why Section 207 Should Sunset

FISA wiretaps and search warrants already lack many of the safeguards that prevent govnerment abuse of criminal taps and warrants. For example, orders are issued using a lower legal standard than the "probable cause" used in criminal cases and are subject to substantially less judicial oversight, while surveillance targets are never notified that they were spied on. Therefore, time limits are a key check on this secret surveillance power: they help ensure that the government intercepts only particular conversations between particular people, and searches only particular places for particular evidence, regarding particular crimes, as required under the Fourth Amendment.

The time limits for FISA wiretaps and searches were already generous compared to taps and warrants available to the FBI in criminal investigations. For example, regular criminal wiretaps, which are issued for 30 days with 30-day extensions available, on average last 40 days and intercept 2,354 separate communications (phone calls, emails, faxes) between 96 people, most of whom are innocent bystanders. FISA taps, which now last at least four times as long as those criminal wiretaps, are certain to intercept many more innocent communications between many more innocent citizens. Yet PATRIOT weakened these checks without the DOJ ever having to show that the previous time limits had hindered earlier investigations.

Even before PATRIOT, if the time limit on a FISA wiretap or search warrant was running out, the FBI could go back to the FISA court for an extension, or in the case of an emergency, could even conduct searches or wiretaps without FISA court approval. Therefore, PATRIOT 207's extension of the FISA time limits is an unnecessary expansion of power with only one clear "benefit": it reduces the amount of paperwork the FBI has to do in order to maintain continuous surveillance. This paperwork isn't unnecessary busy work - it's a procedural check designed to protect our rights under the U.S. Constitution. Needlessly reducing such checks on secret police power doesn't make us safer from terrorism. Instead, it makes us less safe from government abuse of that power.


EFF strongly opposes renewal of Section 207, and we urge you to oppose it, too. We also support the Security and Freedom Ensured Act (SAFE Act, S 1709/HR 3352) and encourage you to visit EFF's Action Center today to let your representatives know you support the bill.

Next Week

We'll look at Section 209, which makes it easier for the FBI to listen to your voice mail messages.


321 Counts Down for Fair Use

EFF encourages the public to speak out for fair use rights by participating in the week-long campaign led by 321 Studios, makers of the popular DVD backup software recently enjoined by a California district court.

"The public's rights to fair use of copyrighted works should not disappear in the face of technological restrictions," said EFF Staff Attorney Wendy Seltzer. "To bring back copyright's balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media."

For more on 321 Studios' "Protect Fair Use" campaign, please visit their website:

Record Companies Pay Millions for Price-Fixing - Send It to EFF!

In September of 2002, five of the largest record companies agreed to pay a settlement of over $140 million for fixing the price of CDs. Approximately $67 million is supposed to reach people who were harmed as a result of this nefarious scheme.

Settlement payments are now being mailed out, with each CD purchaser due $13.86 - an amount barely covering the cost of one still-too- expensive CD.

Aside from giving you some of your money back, this settlement does little to protect you from the recording industry's anti-consumer practices. Marc Freedman of Dallas, Texas, has a better idea: send your settlement check to EFF! Marc has set up a website enabling you easily to send your check to us, so you can support EFF's efforts to defend you against the music cartel.

Turn your payout into payback - send your check to EFF today!


Deep Links

Deep Links features noteworthy news items from around the Internet.

Staff Calendar

For a complete listing of EFF speaking engagements (with locations and times), please visit:

  • March 4 -

    Gwen Hinze speaks at Digital Divide: New Currents in Digital Downloading
    U.C. Davis School of Law
    6:00 p.m. - 9:00 p.m.

    Kevin Bankston speaks at the Southeast Cybercrime Summit
    Kennesaw, GA
    "PATRIOT Act: Friend or Foe?"
    1:00 p.m. - 4:30 p.m.

    Lee Tien speaks at RFID Forum
    San Francisco Public Library
    San Francisco, CA
    6:00 p.m. - 8:00 p.m.

  • March 5 - Wendy Seltzer speaks at the National Education Association conference
    Seattle, WA
    "Reclaiming the Internet"
    9:00 a.m. - 10:30 a.m.


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