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Podcast Episode: Chronicling Online Communities

EFFector - Volume 18, Issue 28 - Victory in US v. Councilman Case


EFFector - Volume 18, Issue 28 - Victory in US v. Councilman Case

EFFector       Vol. 18, No. 28       August 18, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 342nd Issue of EFFector:

Victory in US v. Councilman Case

Massachusetts - In a long-awaited decision, the full First Circuit Court of Appeals last week overturned a First Circuit panel decision that had allowed an email service provider to secretly monitor the content of users' incoming messages without violating federal wiretap law. EFF and other privacy organizations submitted briefs in the case urging that the earlier decision be reheard by all seven First Circuit judges.

The defendant in the case, Bradford Councilman, is a seller of rare and used books who also offered email service to customers. Councilman had secretly configured this system to copy all customer email coming from, his competitor, and send it to him. The original First Circuit panel had declared this action to be legal because the messages were in "electronic storage" on the defendant's system for a few milliseconds when they were copied. Thus, the panel argued, Councilman was not in violation of the Wiretap Act. Instead, the panel said that only the Stored Communications Act (SCA) applied to his activities. And the SCA does not place any limits on a communications provider's access to customers' stored messages.

The full court's new decision makes clear that even though emails are stored in computer memory during transmission, it is still criminal to intercept those messages without the user's permission or a court-issued wiretap order. The Wiretap Act doesn't apply merely to communications that are tapped from the wire, but also covers communications that are in "transient electronic storage that is intrinsic to the communication process," according to the court.

"This decision reaffirms that email providers can't snoop on their customers' incoming messages any time they like, and that the law protects the privacy of your email just as much as it protects the privacy of your phone calls," said Kevin Bankston, EFF attorney and Bruce J. Ennis/Equal Justice Works Fellow. "The First Circuit correctly recognized that when law professors, privacy activists, the Department of Justice, and the drafters of the law all agree on what the wiretap statute means, as was the case here, they probably know what they're talking about."

For this release:

For the decision:

Service Technicians Can't Snoop on Your Hard Drive for the Government

EFF Weighs in on Computer Privacy Case in Washington

Washington - Imagine if the law permitted the people who service your computer to share all the personal information on your hard drive with the police, without your consent and without a search warrant. A case on appeal to the Washington State Court of Appeals, State v. Westbrook, threatens to allow just that, turning your friendly neighborhood computer repair technician into a government informer.

Last week, EFF filed a friend-of-the-court brief in support of the respondent, Robert Westbrook, arguing that citizens have a reasonable expectation of privacy in the contents of their computers, and that their Fourth Amendment rights don't disappear when a computer is delivered to a technician for servicing.

When Westbrook dropped off his personal computer at a Gateway Computer store for servicing, a technician saw private files on the computer that he thought might be illegal. Gateway called the police, who searched through personal files on Westbrook's hard drive looking for more evidence - before ever getting a warrant. The trial court found, and EFF argues in its brief to the appeals court, that this violated Westbrook's Fourth Amendment rights.

"Customers who drop off their computers for servicing reasonably expect that their private data won't be handed over to the police without a warrant," said EFF Staff Attorney Kurt Opsahl. "Allowing computer technicians to snoop on people's private data is like putting surveillance cameras in dressing rooms. The violation of so many people's privacy far outweighs any benefits that might be gained. It would mean you couldn't use a personal computer for personal business."

EFF was assisted on the brief by criminal appeals specialist Suzanne Lee Elliott of Seattle, who served as local counsel.

For this release:

For the amicus brief:

Anonymous Online Critics Should Not Be Silenced by Lawsuit

EFF Opposes Subpoenas Seeking to Reveal the Identities of Web Writers, Bloggers

Utah - A case brought in a US district court by a Utah man threatens to undermine the First Amendment right to speak anonymously on issues of public concern. In Merkey v. Yahoo SCOX et al., the plaintiff requested an expedited process for serving subpoenas that would unmask anonymous "John Doe" critics who participated in a discussion of another court case, in which Utah-based technology company The SCO Group, Inc., is suing IBM.

EFF, along with the ACLU of Utah, has filed a friend-of-the-court brief in the case, arguing that a court must review the merits of a litigant's claims before legal process can expose the true names of online Does.

"Frivolous litigation shouldn't be used to circumvent the First Amendment," said EFF Staff Attorney Corynne McSherry. "Before an online speaker is exposed, litigants must show that the anonymous poster's identity is central to their claims, that those claims are viable, and that the litigant can acquire the information in no other manner."

The case arose out of several anonymous postings that appeared in a Yahoo group, as well as the weblogs Groklaw and

For this release:

For the amicus brief:

CopyNight Reminder: Cocktails & Copyright, August 23

It's that time again! Join your fellow copyfighters this upcoming Tuesday, August 23rd, for drinks and discussion at CopyNight meet-ups all across North America. Details about topics and which cities are having meet-ups are available at the CopyNight website:

The San Francisco meet-up will take place from 7:00-9:00 p.m. at the 21st Amendment Brewery & Cafe, 563 2nd St (between Bryant and Brannan). Your hosts will be EFF Activism Coordinator Danny O'Brien and Derek Slater, EFF intern and author of "A Copyfighter's Musings"

Bring friends, buy drinks, and enjoy the spirited discussion!

Fred von Lohmann to Speak at Fifth Annual Future of Music Policy Summit, September 11-13

Moving into its fifth year in 2005, the FMC Policy Summit is a forum for musicians, lawyers, academics, policymakers, and music industry executives to come together to discuss and debate some of the most contentious issues surrounding digital technology, artists' rights, and the current state of the music industry. EFF is a co-sponsor, and Fred von Lohmann, EFF's senior intellectual property attorney and the lead counsel for StreamCast in the MGM v. Grokster case, will participate in a panel discussion on IP in the post-Grokster world. Follow the link below for details and registration:


miniLinks features noteworthy news items from around the Internet.

Global IP Control and Its Discontents
Nobel prize-winning economist Joe Stiglitz on how the US is exporting bad intellectual property law to the developing world:

Her Day in Court
Defendant fights back against RIAA file-sharing suit, says that it was somebody else. RIAA somewhat dumbstruck:

An "Invention" So Non-Obvious, It's in the Name of the Device
ZDNet's David Berlind on the DVD player patent claim for, err, autoplaying a DVD:

Two Turntables, a Microphone - Oh, and an IP Attorney on Retainer
Glenn Reynolds on the poor fit between current copyright law and podcasters:

Don't Embrace Limits to Fair Use
Laura Quilter, intellectual property attorney and former librarian, responds to the debate over Google pausing its Google Print library project, warning, "it just doesn't make sense for information activists/ copyfighters to start downwardly limiting various users' sets of rights":

Lessig, Vaidhyanathan in Georgia
Emory University is holding a symposium on Free Culture & the Digital Library on October 14th:

Four Amendments & a Funeral
Rolling Stone's depressing fly-on-the-wall investigation into how Congress "works":

"Copying Music Now Threatens Business Like Filesharing Did"
AP reports on the sinister practice of "CD burning," and how the brave music industry is seeking to control it:

OSDL Announces Patent Commons Project
The free software community's communal defense against patent trolls:

This Time, Break Comes *Before* Bend
Bruce Schneier on reports that the Department of Homeland Security is shopping a bill to eliminate congressional oversight over the "Secure Flight" program, "Looks like the DHS, being unable to comply with the law, is trying to change it":

Furniture Causes FedEx Fits
FedEx thinks the DMCA applies to showing how to re-use their cardboard boxes:,1284,68492,00.html

ID Cards: Think Nationally, Fight Locally
James Moyer on how to persuade states to nix the REAL ID Act:

Terry Pratchett Responds to Canada's Harry Potter Gag Order
Warned the author about his latest book release, "ANYONE WHO READS A WORD OF IT before publication day will be MADE TO SIT IN THE CORNER and their ENTIRE COUNTRY will be given DOUBLE DETENTION until every single person SAYS SORRY!!!!!' So there":


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