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EFFector - Volume 18, Issue 2 - Can the FBI Monitor Your Web Browsing Without a Warrant?


EFFector - Volume 18, Issue 2 - Can the FBI Monitor Your Web Browsing Without a Warrant?

EFFector       Vol. 18, No. 02       January 14, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 318th Issue of EFFector:

Can the FBI Monitor Your Web Browsing Without a Warrant?

EFF Demands Answers from DOJ about PATRIOT Act Surveillance

Washington, DC - Today the Electronic Frontier Foundation (EFF) filed a Freedom of Information Act (FOIA) request with the FBI and other offices of the US Department of Justice, seeking the release of documents that would reveal whether the government has been using the USA PATRIOT Act to spy on Internet users' reading habits without a search warrant.

At issue is PATRIOT Section 216, which expanded the government's authority to conduct surveillance in criminal investigations using pen registers or trap and trace devices ("pen-traps"). Pen-traps collect information about the numbers dialed on a telephone but do not record the actual content of phone conversations. Because of this limitation, court orders authorizing pen-trap surveillance are easy to get - instead of having to show probable cause, the government need only certify relevance to its investigation. Also, the government never has to inform people that they are or were the subjects of pen-trap surveillance.

PATRIOT expanded pen-traps to include devices that monitor Internet communications. But the line between non-content and content is a lot blurrier online than it is on phone networks. The DOJ has said openly that the new definitions allow pen-traps to collect email and IP addresses. However, the DOJ has not been so forthcoming about web surveillance. It won't reveal whether it believes URLs can be collected using pen-traps, despite the fact that URLs clearly reveal content by identifying the web pages being read. EFF made its FOIA request specifically to gain access to documents that might reveal whether the DOJ is using pen-traps to monitor web browsing.

"It's been over three years since the USA PATRIOT Act was passed, and the DOJ still hasn't answered the public's simple question: 'Can you see what we're reading on the Web without probable cause?'" said Kevin Bankston, EFF Staff Attorney and Bruce J. Ennis Equal Justice Works Fellow. "Much of PATRIOT is coming up for review this year, but we can never have a full and informed debate of the issues when the DOJ won't explain how it has been using these new surveillance powers."

The law firm of DLA Piper Rudnick Gray Cary assisted EFF in preparing the FOIA request and will help with any litigation if the DOJ fails to respond.

FOIA request: [PDF]

For this release:

Apple Can't Strongarm Bloggers

EFF Defends Rights of Reporters Who Published Asteroid News Stories on Blogs

Santa Clara, CA - Only weeks before Macworld, the nation's biggest annual trade show devoted to Apple products, Apple sent legal threats to the publishers of the Mac-centric weblogs AppleInsider and PowerPage for posting information about a product code-named "Asteroid." EFF is representing the publishers to protect their right to keep confidential the identities of the people who supplied them with the information.

On December 13, Apple filed suit against "Does 1-20" in a Santa Clara court. The company obtained a court order that allows it to issue subpoenas to AppleInsider and PowerPage for the names of the "Does" who allegedly leaked the information in question. EFF is defending the publishers against these subpoenas, arguing that the anonymity of bloggers' sources is protected by the same laws that protect sources providing information to journalists.

"Bloggers break the news, just like journalists do. They must be able to promise confidentiality in order to maintain the free flow of information," said EFF Staff Attorney Kurt Opsahl. "Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society."

"I am very disappointed by Apple's behavior and its new policy of issuing legal threats to its best customers," added Jason O'Grady, publisher of PowerPage. "Is corporate paranoia really more important than the First Amendment?"

For this release:

Will Blizzard Destroy the Future of Videogames?

Outcome of BnetD Case Could Eliminate Software that Extends the Gaming Experience

Eighth Circuit - This week EFF filed a brief in the Eighth Circuit Court of Appeals arguing that federal law forbids videogame corporation Blizzard from interfering with gamers' ability to create new products to enhance their game experience. EFF is co-counsel for the defendants in Davidson v. Internet Gateway, a case on appeal from a district court in St. Louis. The district court held that an open-source software gaming server called BnetD was unlawful because its makers had violated Blizzard's End User License Agreement (EULA) and portions of the Digital Millennium Copyright Act (DMCA).

BnetD lets gamers play popular Blizzard titles like Warcraft with other gamers on servers outside of Blizzard's service. To create BnetD, a group of volunteer programmers reverse-engineered a protocol in, using the information to give players access to the BnetD server. Blizzard argues that this act violated a clause in its EULA that forbids reverse-engineering. In its brief, EFF argues that federal copyright law, which allows reverse-engineering in cases of fair use, trumps Blizzard's EULA. Because the BnetD programmers created a product that is interoperable with Blizzard games, their actions fall squarely within the definition of fair use. EFF also argues that the DMCA specifically allows for fair use reverse-engineering.

If it stands, the lower court's decision would make it unlawful in most cases to reverse-engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own.

"The Eighth Circuit's decision will strongly impact the health of the videogame industry," said Jason Schultz, the EFF staff attorney working on the case. "If companies are able to use EULAs and the DMCA to eliminate competition in the marketplace, videogame consumers will suffer, as will consumers of electronics in other industries affected by this ruling."

For the full press release:

For the EFF brief: [PDF]

Texas Election System Examiners' Meetings Shrouded in Secrecy

Lawsuit Pushes for Public Access to Meetings Where E-voting Machines Are Evaluated

Austin, TX - On January 19, a Texas court is scheduled to determine whether to force the state's voting examiners to open their meetings to the public. The ACLU of Texas and a Texas voter filed a lawsuit last year, ACLU of Texas v. Geoffrey S. Connor, demanding that the public be admitted to meetings where the examiners decide which electronic voting machines to certify. While these groups waited for a response from the court, the examiners held yet another closed meeting on January 4 and 5.

"There's no technical reason for keeping these meetings closed to the public," said Dan Wallach, a Rice University computer science professor and outspoken critic of electronic voting systems. "By allowing outside experts in security, accessibility, and election procedure to attend the meetings, the voting system vendors will receive better feedback from the ultimate users of the machines. Likewise, if outside experts find problems, the state can demand the vendors address those problems before the machines are used in the field."

Recently, the Texas Safe Voting Coalition obtained videotapes of previous meetings, including one involving Diebold Election Systems, that suggest a lack of rigor and failure to address properly security and certification compliance issues. If the court grants a temporary injunction on the 19th, the voting examiners will have to admit the public to certification meetings.

"Transparency in voting systems is one of the most important ways we ensure that our votes count," said Cindy Cohn, Legal Director of the Electronic Frontier Foundation (EFF), which is serving as co-counsel in the case. "Transparency needs to start from when voting machines are chosen and end with the final vote tally, including any necessary recounts."

For the full press release:

For the complaint:

Sham Recount Process on Diebold E-voting Machines

Lawsuit Challenges Berkeley Election Officials in Referendum Recount

Berkeley, CA - A close proposition referendum will come under court examination in a case that highlights major problems with conducting a recount using Diebold electronic voting machines. Berkeley Measure R, the Patient's Access to Medical Cannabis Act of 2004, lost by only 191 votes after the regular election on November 2, 2004. Under the law, the proponents were entitled to seek a recount, which they did.

Instead of attempting to ensure that the votes were counted correctly, however, Alameda County election officials engaged in a "going through the motions" exercise where they merely ran the same electronic vote data through the same counting machines and, predictably, reached the same result. They did not consult the machines' audit logs, redundant memories, or any other relevant materials.

Measure R proponents Americans for Safe Access filed a lawsuit on December 30 challenging the actions of county election officials in handling the electronic voting machine portion of the recount. This suit now awaits a hearing.

"Recounts are one of the most important ways we detect vote fraud and error," said Matt Zimmerman, staff attorney for the Electronic Frontier Foundation (EFF), which is consulting on the case. "Even after Californians have voter-verified paper trails in 2006, it will be important to ensure that audit logs, redundant memory, and other security measures are checked during a recount, along with the paper trails. Banks and credit card issuers use these measures to make sure our financial transactions are safe. Our votes deserve at least as much protection."

A hearing in Alameda Superior Court is currently set for March 2.

For the full press release:

It's Not Too Late to Nominate a Pioneer for EFF's 2005 Pioneer Awards!

There's still time to tell us who you think deserves an EFF Pioneer Award this year! We will continue to accept nominations until February 1, 2005.

EFF established the Pioneer Awards in 1992 to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology. This year's award ceremony will be held in Seattle in conjunction with the Computers, Freedom and Privacy conference (CFP), which takes place April 12-15.

For details on criteria and how to nominate a Pioneer, check out the Pioneer Awards website:

CFP 2005 website:

EFF is seeking sponsorship for this year's Pioneer Awards. If your company or group is interested, please contact Terri Forman at


miniLinks features noteworthy news items from around the Internet.

Wish They All Could Be California Privacy Laws
Ryan Singel on how California had a pretty good year for privacy laws in 2004:,1848,66165,00.html

The Price of Surveillance, Measured in Pounds
The London Internet Exchange (LINX), a consortium of ISPs, argues that the cost of a proposed EU plan to mandate data retention would amount to a tax to support government snooping:

French Security Researcher Could Be Jailed for Finding Bugs
Guillaume Tena found and wrote about exploits in a piece of antivirus software, and its publisher has now initiated two lawsuits against the researcher. If found guilty, Tena could spend six months and jail and be fined almost a million euros:

More On Why to Thank Poland
The controversial EU software patent directive was supposed to be rubber stamped, but Poland's opposition plus a letter from 61 MEPs has thrown its future into (welcome) doubt:

Verizon Blocks Email from UK, Parts of Europe
It would have been kinda nice if they'd told their customers...,1272,66226,00.html

The Most Trusted Name in Censorship

The news organization has sued several Internet sites for allowing users to translate CNN stories into Arabic. The sites provide automated translation engines like Altavista's BabelFish, but CNN has decided to only target operators in the Arab world:

LokiTorrents v. Hollywood
One of the Internet's most popular BitTorrent sites is looking to raise money for its impending legal fight against the MPAA:

Your Boss Can Search Your Computer Without a Warrant
A Washington appeals court has ruled that employees don't have an expectation of privacy for material stored on a work computer:

RIAA Slapped Again for Ignoring Due Process
No more shotgun lawsuits - another appeals court has ruled that the RIAA must file individual "John Doe" lawsuits against alleged copyright infringers:

8th Circuit:
VoIP Can't Be Regulated as Phone Service

This trend may help infant services like Vonage and Skype run with the monster telcos: (AP)

Big Software Urges Congress to Regulate ISPs
Citing piracy concerns, the Business Software Alliance (BSA) has asked Congress to amend the Digital Millennium Copyright Act (DMCA) to force Internet service providers to play the heavy for copyright holders:
(Washington Post; reg. unfortunately required.)

The iTunes Made Me Do It
A California man is suing Apple Computer for using its monopoly power to force him to buy an iPod. It may sound farfetched as an antitrust claim, but it's a good example of how digital rights management (DRM) can push consumers into doing something they normally wouldn't:
(Washington Post; reg. unfortunately required.)

Unsigned, Sealed, Delivered
The Maine Supreme Court recently heard arguments in a case involving the right to send anonymous email: did a district court in Texas, which found that an anonymous email user has the right to stay anonymous, even in the face of a defamation lawsuit:
(The New Standard)

It's All Downhill from Here
The Boston Globe has short piece on our favorite agitprop group, Downhill Battle:


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