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EFFector - Volume 17, Issue 8 - FCC Faces Suit on Regulation of Digital Broadcast Television

EFFector       Vol. 17, No. 8       March 10, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 280th Issue of EFFector:


FCC Faces Suit on Regulation of Digital Broadcast Television

EFF Joins Other Organizations Opposing Broadcast Flag Mandate

San Francisco, CA - EFF joined five major library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union in suing the Federal Communications Commission (FCC) last week to block overbroad regulation of next-generation televisions and related devices.

"The FCC's digital broadcast television mandate is a step in the wrong direction because it would make digital television cost more and do less, undermining innovation, fair use, and competition," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The FCC overstepped its bounds, unduly restricting consumers and manufacturers, when it issued its broadcast flag ruling."

The lawsuit, called ALA v. FCC, was filed in the Court of Appeals in Washington, D.C., and charges that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence in adopting a broadcast flag mandate.

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Court Orders Record Industry to File 203 Separate Lawsuits

EFF, the ACLU, and its local affiliates won a victory for the privacy and due process rights of Internet users when a Pennsylvania federal court ruled last week that the record companies must file 203 separate lawsuits against alleged filesharers rather than lump them together in a single case.

"We're glad the judge has recognized that the RIAA was trying to skirt around the regular rules for lawsuits by grouping over 200 individuals as a gang of file sharers," said EFF Staff Attorney Jason Schultz. "We think each individual who is being sued has a right to have her own trial, and have her own privacy interests evaluated independently of anyone else who's being sued."

Judge Clarence Newcomer found in BMG Music v. Does 1-203 that the record companies acted improperly in joining all 203 defendants in a single lawsuit and ordered them to file separate complaints against each of the unnamed "John Doe" defendants. The companies must now pay the full filing fee for each case, for a total of about $30,000, as well as make individualized allegations against each defendant.

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EU Parliament Adopts Controversial IP Enforcement Directive

The European Parliament voted this week to adopt an overbroad Directive on Intellectual Property Enforcement that gives rightsholders powerful new enforcement tools to use against intellectual property infringers. EFF opposed the proposed Directive because it did not distinguish between unintentional, non-commercial infringement by consumers and for-profit, criminal counterfeiting enterprises.

"Under this Directive, a person who unwittingly infringes copyright - even if it has no effect on the market - could potentially have her assets seized, bank accounts frozen, and home invaded," said EFF staff attorney Gwen Hinze.

The Directive now moves to the Council of Ministers, which is likely to endorse it on March 11, 2004. EU Member States will then have two years to implement the new enforcement provisions in their national law.

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Action Center Update - Your Voice Makes a Difference!

[Ed. This is the first in a series on how your actions make a difference. Look for additional activism updates in future issues.]

EFF's Action Center (http://action.eff.org) is where we give you the tools to defend your civil liberties. Operational since the summer of 2002, the Action Center runs on your energy and support. Over the past 18 months, EFF supporters from every congressional district in the U.S. have used it to send 389,454 letters addressing a broad range of issues. These letters have real impact. Here are two examples of how your voice is making a difference:

CAPPS II Hearings

In 2003, scandal erupted after JetBlue handed over personal data on millions of air travelers to a government contractor. Early this year, Northwest Airlines admitted to doing the very same thing - violating the privacy of more than ten million people by secretly providing NASA with passenger records that include names, addresses, itineraries, credit card information and more. At the same time, the Transportation Security Administration (TSA) moved ahead with plans to implement the Computer Assisted Passenger Pre-screening System (CAPPS II) - a program that would make privacy violations routine for air travel.

In response, we encouraged you to send letters to Congress to demand airline and government accountability for your travel privacy. We also asked that you support EFF and a coalition of public interest groups in calling for Congressional hearings. You sent over 22,000 letters. Two separate groups of House Representatives issued public letters citing their constituents' concerns about CAPPS II. The result? The government listened, and the first public hearings on CAPPS II take place on March 11th.

Electronic Voting

EFF supporters sent over 16,000 letters to Congress in support of a bill to increase security in e-voting machines. The Holt Bill (H.R. 2239) would require paper audit trails for all e-voting machines and mandate open security reviews for all election software. It's an important bill, but it was introduced in Congress with zero co-sponsors and consequently, close to zero chances of passing.

Now, after six months of letter writing by EFF supporters, the Holt bill has 125 House sponsors and a companion bill in the Senate.

These results are extraordinary. EFF thanks you for your support, and we will continue to give you updates on how your actions are making our campaigns a success. We'd also like to remind you that grassroots activism needs people like you to spread the word - don't forget to tell your friends and family about EFF!

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Let the Sun Set on PATRIOT - Section 209:

"Seizure of Voice Mail Messages Pursuant to Warrants"

Welcome to part four 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 209, which violates your privacy by making it easier for the FBI to listen to your voice mail messages.

How Section 209 Changed the Law

Before PATRIOT, the privacy of your voice mail was protected by the Wiretap Act. This meant that in order to listen to your messages, the FBI had to secure a wiretap order. These orders are like "super" warrants - they have even stricter Constitutional requirements than do warrants for physical searches.

After PATRIOT, however, your voice mail is governed by the Electronic Communications Privacy Act (ECPA), a statute that gives you much less legal protection against government spying. Now, instead of needing a wiretap order to listen to your voice mail, the FBI can use other legal processes with weaker privacy-protection standards:

  • If you haven't listened to your voice mail messages and they are 180 days old or less, the FBI can use a search warrant to gain access to them.
  • If you have listened to your messages, or if they are older than 180 days, the FBI can use a special court order for stored communications, or a subpoena.
  • In some cases, the FBI may be able to simply ask for the voice mail, and your phone company may give it, without fulfilling any legal requirements at all.

As a result, the privacy of your voice mail is substantially reduced:

  • Before PATRIOT, the FBI could gain access to your voice mail only by showing facts to a judge that demonstrate "probable cause" to believe that you are committing a crime. Now, under certain circumstances, it need only demonstrate "reasonable grounds" for the search to get a court order - or, if it uses a subpoena, mere "relevance" to an investigation.
  • Before PATRIOT, the FBI eventually had to notify you if it listened to your voice mail messages. Now if they use a search warrant, the only way you'll find out is if the FBI uses your voice mail against you in court.
  • Before PATRIOT, the FBI could listen to your voice mail only if you were suspected of one of a limited number of serious crimes. Now it can gain access to your voice mail messages for any kind of criminal investigation whatsoever.
  • Before PATRIOT, if the FBI listened to your voice mail illegally, it couldn't use the messages as evidence against you - this is the so-called exclusionary rule. But the ECPA has no such rule, so even if the FBI gains access to your voice mail in violation of the statute, it can freely use it as evidence against you.

Why Section 209 Should Sunset

Section 209 is a perfect example of the opportunism shown by the Department of Justice in the wake of the 9/11 terrorist attacks. Knowing that a bill tagged as "anti-terrorist" couldn't fail to pass, the DOJ loaded PATRIOT with its entire wish list of new powers, regardless of whether these powers specifically targeted terrorism. Section 209 is one such power - expanding the FBI's ability to search your communications in any criminal investigation, terrorism-related or not. Yet the DOJ never indicated that the previous law significantly hindered its investigations, much less put stumbling blocks in the fight against terrorism.

Conclusion

Passed by Congress in a climate of fear, Section 209 effects a dangerous and unnecessary reduction in citizens' privacy. EFF strongly opposes its renewal, 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 220, which allows the FBI to get search warrants for electronic evidence that can be served in any jurisidiction in the country.

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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 the full calendar.

  • March 11 - Fred von Lohmann speaks at Southwestern Law School Symposium
    "Sony v. Universal: The Betamax Decision Twenty Years Hence"
    Los Angeles, CA
    3:30 p.m. - 7:30 p.m.
  • March 13 - Lee Tien speaks at DePaul Law Review's 14th annual symposium,
    "Privacy and Identity: Constructing, Maintaining and Protecting Personhood"
    Chicago, IL
    2:30 p.m. - 4:30 p.m.
  • March 15 - Wendy Seltzer speaks at SXSW Interactive
    "Blogging and the Law"
    Austin, TX
    9:00 a.m. - 10:00 a.m.

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