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EFFector - Volume 18, Issue 37 - Court Issues Surveillance Smack-Down to Justice Department


EFFector - Volume 18, Issue 37 - Court Issues Surveillance Smack-Down to Justice Department

EFFector       Vol. 18, No. 37       Oct 27, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 353rd Issue of EFFector:

Court Issues Surveillance Smack-Down to Justice Department

No Cell Phone Location Tracking Without Probable Cause

New York--Agreeing with a brief submitted by EFF, a federal judge forcefully rejected the government's request to track the location of a mobile phone user without a warrant.

Strongly reaffirming an earlier decision, Federal Magistrate James Orenstein in New York comprehensively smacked down every argument made by the government in an extensive, fifty- seven page opinion issued this week. Judge Orenstein decided, as EFF has urged, that tracking cell phone users in real time required a showing of probable cause that a crime was being committed. Judge Orenstein's opinion was decisive, and referred to government arguments variously as "unsupported," "misleading," "contrived," and a "Hail Mary."

"This is a true victory for privacy in the digital age, where nearly any mobile communications device you use might be converted into a tracking device," said EFF Staff Attorney Kevin Bankston. "Combined with a similar decision this month from a federal court in Texas, I think we're seeing a trend--judges are starting to realize that when it comes to surveillance issues, the DOJ has been pulling the wool over their eyes for far too long."

Earlier this month, a magistrate judge in Texas, following the lead of Orenstein's original decision, published his own decision denying a government application for a cell phone tracking order. That ruling, along with Judge Orenstein's two decisions, revealed that the DOJ has routinely been securing court orders for real-time cell phone tracking without probable cause and without any law authorizing the surveillance.

"The Justice Department's abuse of the law here is probably just the tip of the iceberg," said EFF Staff Attorney Kurt Opsahl. "The routine transformation of your mobile phone into a tracking device, without any legal authority, raises an obvious and very troubling question: what other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?"

The government is expected to appeal both decisions and EFF intends to participate as a friend of the court in each case.

For the full text of Judge Orenstein's new opinion, and the similar Texas opinion:

For this release:

Plan for Internet "Backdoors" Draws Coordinated Attack

The FCC's new tech mandate requiring Internet backdoors is wrong in so many ways, we cannot even keep count. A few choice ways, in lawyer-speak, is that it exceeds the FCC's authority, is arbitrary, capricious, unsupported by the evidence, and is contrary to law. EFF and six other groups have now teamed up to stop it.

The coalition has petitioned an appeals court to review the FCC ruling that would expand the Communications Assistance to Law Enforcement Act (CALEA) to broadband ISPs and VoIP providers, forcing them to build insecure backdoors into their networks. Law enforcement says it needs the backdoors because, they argue, it's just too hard for them to intercept all the communications that they need. But that kind of easy access will also endanger the privacy of innocent people, stifle innovation, and risk the Internet as a forum for free and open expression.

EFF has already argued against this expansion of CALEA in several rounds of comments to the FCC, and we'll be there every step of the way during the court battle.

Petition from EFF and other groups:

More on FCC and CALEA:

Want to Take a Bite Out of the DMCA? Now's the Time

As part of the Digital Millennium Copyright Act (DMCA), Congress instructed the U.S. Copyright Office to consider every three years whether we need exemptions to the DMCA's blanket ban on circumventing "technological protection measures" (aka Digital Rights Management or DRM) used to lock up copyrighted works. So if you want to make a legitimate use of a piece of media, but have been turned back by DRM and the DMCA, now is your chance to take your case to the Copyright Office and try to make the world a happier and safer place for the next three years. As two-time- successful-exemption-requester Seth Finkelstein says: "The lawsuit you prevent may be your own."

The Copyright Office is soliciting exemption proposals for the next three-year period, 2006-2009. Proposals must be submitted to the Copyright Office by no later than December 1, 2005.

Keep in mind that--as in the two previous rule-makings--you'll have to overcome some obstacles to convince the Copyright Office and Librarian of Congress to grant you an exemption. These include:

1. The Copyright Office can recommend exemptions only to the DMCA's ban on acts of circumvention, not to the ban on trafficking in tools of circumvention. So if you are interested in an exemption that would allow you to distribute circumvention tools (like DVD back-up software), you're out of luck.

2. You have to prove that your intended activity is not otherwise an infringement of copyright law and specifically identify the DRM technology that is getting in your way.

3. You have to identify a "class" of copyrighted works to which your exemption would apply. The Copyright Office requires that you do this by defining a subset of works of authorship. You are not allowed to frame the class by reference to particular non-infringing uses of those works, or by attributes of the users. For example, the Copyright Office has rejected past requests for exemptions for "classroom uses" of DVDs, while granting exemptions for computer programs protected by malfunctioning copy-protection dongles.

These are just a few of the sometimes bewildering array of limitations on the Copyright Office's willingness to entertain exemption proposals. The best way to understand the requirements is to read up on the links below. If, after reviewing these, you think you might have something that qualifies, EFF would like to hear from you. Please email exemption class proposals to dmca2006-proposals by November 24.

Finkelstein describes his experience:

Official Federal Register notice:

Report on rule-making from 2003:

The four exemptions granted in 2003:

First Annual P2P Litigation Summit, November 3

In September 2003, members of the Recording Industry Association of America (RIAA) filed the first wave of lawsuits against individual peer-to-peer (P2P) file-sharers. Two years and 14,000 lawsuits later, both P2P file-sharing and file-sharing litigation continue unabated, and members of the Motion Picture Association of America (MPAA) are now suing individual Internet users, as well. It's time to step back and consider where this litigation has been, where it's going, and whether there is a better way forward.

EFF is co-sponsoring the First Annual P2P Litigation Summit, to be held on Thursday, November 3, 2005, at Northwestern University School of Law in Chicago, Illinois.

The daylong conference brings together public and private defense attorneys, clients, investigators, advocates, and academics to discuss the latest developments in peer-to-peer litigation. How do the RIAA and MPAA go about identifying plaintiffs? What are the most effective legal strategies and tactics? Is it better to settle immediately or fight it out in the courts? How is this impacting the individuals sued? What is the role of ISPs in this quagmire? Should Congress step in and, if so, what legislation is needed? Are there other ways to compensate authors for their works?

More information, and to register:

The Patent System of the Future?

For those following the E.U. software patent directive, U.S. Patent and Trademark Office reform proposals, and the substantive patent law harmonization merriment at WIPO, here's your chance to meet the Trilateral PTOs. Join the European Patent Office, the Japan Patent Office and the USPTO for a meeting with users on "The Patent System of the Future: The Role of the Trilateral Offices" in Munich, November 17.

For more information and to register:

Spring Legal Internships at EFF

EFF invites outstanding law students to apply for Spring internship positions at our high-energy office in San Francisco. You can work with EFF's legal team to litigate cutting-edge issues surrounding new technologies. Interns assist in all aspects of litigation and advocacy, including legal research, factual investigation, and drafting of memoranda and briefs, while also helping with policy research, client counselling, and the development of public education materials. EFF's docket ranges across the technological and legal landscape, from file-sharing to electronic voting to the USA PATRIOT Act.

Spring internships are two full days per week and last 10-12 weeks. First and second-year law students are encouraged to apply, including students enrolled in non-US schools.

For details:

Staff Calendar

October 30
Fred von Lohmann speaking at the Eastern District of California 2005 Judicial Conference in Monterey, CA

November 3
Cindy Cohn, Corynne McSherry, and Allison Navone speaking at the P2P Litigation Summit in Chicago

November 4
Cindy Cohn speaking at the Intellectual Property Law Association in Chicago

Fred von Lohmann speaking at the Advanced Software Law and Practice in San Francisco

Cory Doctorow speaking at the Center for Brazilian Studies at the University of Oxford, England


miniLinks features noteworthy news items from around the Internet.

An Open Letter to Yahoo's Jerry Yang
The full text of the powerful, damning message to Yahoo's co-founder, from Beijing dissident Liu Xiaobo.

Lack of a Broadcast Flag Boosts HDTV Tuners
"With the broadcast flag being struck down...tuner card manufacturers are aggressively doing HDTV TV tuner card products for retail," says a software PVR developer.

Digital Copyright Law Unclear Shocker
Can you sell your CDs and keep your ripped music? Copyright expert Bill Patry steps in on the legality of selling your CDs after making digital copies.

Doctorow on Europe's Coming Broadcast Flag
O'Reilly reports on Cory's speech at EuroOSCON

Patent Office Three-Way, November 17, Munich
State what you think of software and business practice patents to the heads of Japanese, US, and EU patent offices.

Authors for Google Print
Jason Kottke on an author who wants her publisher to cooperate with Google Print, not sue it.

Bill Gates Against "Anti-Consumer" DRM
Blu-ray copy-protection crosses the line (handily drawn a little away from Microsoft's own DRM).

CALEA Goes to College
Schools are balking against the costs of wire-tapping their students.

EULAs I Have Known
Tom's Guide takes a look at some of the more egregious EULA terms they've seen.

Iranian Blogger Receives 124 Lashes
The Committee to Protect Bloggers has more info and a show of support HTML snippet to include on your site.


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