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EFFector - Volume 18, Issue 5 - EFF Asks Court to Protect Online Journalists


EFFector - Volume 18, Issue 5 - EFF Asks Court to Protect Online Journalists

EFFector       Vol. 18, No. 05       February 18, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 321st Issue of EFFector:

EFF Asks Court to Protect Online Journalists

Seeks to Stop Apple From Undermining Reporter's Privilege

Santa Clara County, CA - EFF this week asked a California Superior Court for a protective order that would prevent Apple Computer from forcing three online journalists to identify their confidential sources and hand over unpublished materials. EFF, serving as co-counsel for the journalists, argues that online journalists are protected by the same "reporter's privilege" laws that shield print journalists from having to reveal the names of anonymous sources.

The case began in December 2004, when Apple obtained a court order allowing the company to issue subpoenas aimed at discovering the identities of 20 "Does" who allegedly leaked information about upcoming Apple products to and After initially threatening to subpoena reporters directly, Apple sent subpoenas to, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find out who told the journalist about an upcoming product code-named "Asteroid."

"Rather than confronting the issue of reporter's privilege head-on, Apple is going to this journalist's ISP for his emails," said EFF Staff Attorney Kurt Opsahl. "This undermines a fundamental, First Amendment right that protects all reporters. If the court lets Apple get away with this, and exposes the confidences gained by these reporters, potential confidential sources will be deterred from providing information to the media, and the public will lose a vital outlet for independent news, analysis, and commentary."

Supporting EFF in this argument are Professor Tom Goldstein, Director of the Mass Communication Program and former Dean of the Journalism School at the University of California at Berkeley, and Dan Gillmor, noted Silicon Valley journalist and founder of Grassroots Media Inc., both of whom filed declarations stating their expert opinion that the writers for PowerPage and Apple Insider are journalists just like the writers for traditional newspapers and magazines. Acting as co-counsel with EFF are Thomas Moore III of Tomlinson Zisko LLP and Richard Wiebe of the Law Office of Richard Wiebe.

In its request for the protective order, EFF points out that reporter's privileges protect the anonymity of sources regardless of whether third parties hold a journalist's records.

For this release:

Request for the protective order:

Case archive:

RFID Tracking Program Ended in Sutter School

Victory for Students, Parents, and Civil Liberties Groups

San Francisco - The Sutter-based company InCom announced at a packed special school district meeting Wednesday that it would end its pilot program that required students to wear radio frequency identification badges that tracked the students' movements. The company pulled out when parents and civil liberties groups mobilized to end the program.

On February 7, the ACLU of Northern California (ACLU-NC), Electronic Frontier Foundation (EFF), and the Washington-based Electronic Privacy Information Center (EPIC) sent a letter to the school district urging the school officials to end the program after being contacted by the parents.

"We are pleased that InCom is pulling out - our children never should have been tagged like pieces of inventory or cattle," said Michele Tatro, one of the parents who fought to end the tracking program. "The RFID tags violated the student's privacy, they were demeaning, and it put them in danger." "This is a tremendous victory for the students and families of Sutter," said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU-NC. "However, this is not just an issue affecting school children. The potential use of RFIDs in other identity documents, such as driver's licenses and medical cards, should be of concern to all Californians. RFIDs in identity documents is an issue that requires a statewide response, and we plan to encourage legislative action on this front."

"We're happy for the kids in Sutter, and grateful to those parents who stood up for family privacy and security. We hope it will be a wake-up call to parents and kids across the nation," said Lee Tien of EFF.

The tracking program was introduced on January 18th without any notification to the parents. Students in the small farm town of Sutter were required to wear ID cards around their necks with their picture, name, grade, school name, class year, and four-digit school ID number and the RFID tags. Parents only found out about the program when their children came home wearing the tracking devices.

For the full release:

Joint letter from ACLU-NC, EFF, and EPIC to the Brittan School:

More about RFIDs:

EFF Warns Consumers about the Dangers of EULAs

New White Paper Outlines How Click-Through Agreements Erode Privacy, Fundamental Liberties

San Francisco - EFF this week released a white paper warning consumers about how they can be harmed by end user license agreements (EULAs) for consumer electronics and online services. Many EULAs contain terms that damage consumer interests, including invitations for vendors to snoop on users' computers, prohibitions on publicly criticizing the product in question, and bans on customizing or even repairing purchased devices.

"Overbroad EULAs are one of the greatest threats to consumer rights in the high tech industry," said Annalee Newitz, EFF policy analyst and author of the white paper. "Few people realize that simply visiting a website or downloading a software update may constitute 'agreeing' to a EULA that permits third parties to monitor your communications or allows a vendor to dictate what you can or cannot do with the product you've bought. Clicking the 'I Agree' button may mean clicking away your privacy, freedom of speech, or other rights."

EULAs, often called "click-through agreements," have become ubiquitous in the technology industry. While they are supposed to bind consumers to strict terms dictated by vendors, consumers don't negotiate them, don't sign them, and in many cases can't even read them until after they've bought the product, taken it home, and opened up the package.

EFF's white paper, "Dangerous Terms - A User's Guide to EULAs," comes at a key juncture in the case of Davidson v. Internet Gateway (commonly known as Blizzard v. Bnetd), a lawsuit that tests whether EULAs can override protections under federal copyright law such as the fair use doctrine. Lawyers for Davidson (Blizzard) will argue in a brief filed this week that three open source programmers violated the company's EULA when they reverse-engineered Blizzard video games to create bnetd, a free, interoperable game server - even though reverse-engineering is a legal fair use. EFF is serving as co-counsel defending the programmers in the case, which is currently on appeal in the Eighth Circuit.

EFF is also in the process of devising legal strategies to challenge EULAs. This white paper is intended to educate the public, but also to serve as a call to arms for consumers who want to fight unfair terms in EULAs. EFF invites people who have been harmed by EULA terms, or who have been threatened with lawsuits for violating terms in EULAs, to contact EFF with their stories.

Consumers harmed by EULAs can contact EFF at:

For this release:

EFF white paper: "Dangerous Terms - A User's Guide to EULAs":

Blizzard v. BnetD case archive:

BayFF Event: EFF Celebrates Innovation, Feb. 22

Check Out the Latest Gadgets and Hang Out with EFF at our February BayFF!

Tuesday, February 22nd, 2005
7:00 p.m. to 9:30 p.m.

WHAT: "Inventive Gizmos - A Celebration of Innovation"

Innovation. We love it.

This upcoming BayFF is a celebration of all the technological wonders we've been able to enjoy thanks to the legal shield provided by the 1984 Sony Betamax ruling. Come check out cool new gizmos from local tech companies Elgato, Slim Devices, and Sling Media. EFF attorneys and tech gurus will talk about how you can help protect the pro-innovation environment that allows gadgets like these to flourish.

111 Minna Gallery
111 Minna Street
San Francisco, CA 94105
Tel: (415) 974-1719

This event is free and open to the general public. You must be 21+. Refreshments will be served.

RSVP at (415) 436-9333, x129 or email

111 Minna Gallery is accessible via BART. Get off at the Montgomery station and use the exit marked 2nd and Market. Walk south on 2nd Street for a block and a half, and take a right down the Minna Street Alley. 111 Minna Street is located between Mission and Howard streets.

EFF Seeks Summer Interns

EFF invites outstanding law students to apply for summer internship positions at our high-energy office in San Francisco, where you can work with EFF's legal team to litigate cutting-edge issues surrounding new technologies.

Interns assist in all aspects of litigation, including legal research, factual investigation, and drafting of memoranda and briefs, while also helping with policy research, client counseling, and the development of public education materials.

Summer interships are unpaid and last for 10-12 weeks. Applications are due by February 25, 2005.

For details and an application, see:


miniLinks features noteworthy news items from around the Internet.

Fair Use for Australia?
The country is contemplating codifying fair use so it'll be legal in Australia to do things like rip your CDs to an MP3 player for personal use. How refreshingly rational:
(Sydney Morning Herald; reg. unfortunately required.)

Bill Gates, Communist
Richard Stallman turns the tables on Mr. Gates in an op-ed about how software patents harm innovation:

European Parliament Rejects Software Patents
Unanimously. We're crossing our fingers that the European Commission will do the same:,9171,1025138-1,00.html

E-voting Reform Bill Tops 100 Co-sponsors
Rep. Rush Holt's Voting Integrity and Verification Act is back in action and garnering more support than ever:

Blogging on the Dole
That's what some bloggers may be doing as more and more employers crack down on those who publish from within cubicle walls:

Tecmo Goes Ninja on Game Hackers
The company is pursuing people who modified their versions of Xbox titles like "Dead or Alive" and "Ninja Gaiden." "Ninja Gaiden" is *already* impossible to beat - now we've got to fight legions of lawyers? We're sticking to Scrabble:

France Knocks Apple, Sony Over DRM
The legal action claims that the companies' sale & marketing of use-restricted media is deceitful and anticompetitive:

New Use-Restricted DVDs in the Offing
Macrovision did it:

Suspicious Wives
A judge has ruled that a woman broke the law when she surreptitiously used spyware to document her husband's extramarital affair:

Is That a Cell Phone in Your Pocket, Or...
Some governments fear cell phones will become porn portals, so they're preparing to carry out cellular censorship:

The Recording Industry:
Competitive or Cartel?

Ed Felten says there's a "natural experiment" in progress that will let us know:

Copyright Cops In Da House
An Italian DJ has been ordered to pay a 1.4 million-euro fine for spinning illegally obtained tunes:

Oops, Napster Did It Again
A gap in the company's copy protection scheme, coupled with its all-you-can-eat-from-our-tiny-buffet subscription plan, allows current Napster users to experience an inkling of the functionality that everyone was able to enjoy five years ago:

CNN on Grokster
Pre-show coverage for next month's main event at the Supreme Court:

A Thousand National ID Proposals Bloom
Legislation in the US and abroad is aimed at creating national ID systems, both de facto and explicit. A terrible idea in any form:

Michael Geist on Canadian Copyright
A great lecture on the history of Canadian copyright law and current attempts to expand it - a must-see for anyone interested in the global copyright debate:
(Project OSOA)

P2P Lawsuits and Economies of Scale
This Daily Texan article shares some startling numbers about the RIAA's litigation campaign:
it has settled 8,423 suits with an average settlement of $3,000. That's a total of $25,269,000, not a penny of which goes to the artists the organization claims to speak for:
(The Daily Texan)


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