EFFector Vol. 19, No. 18 May, 2006
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 379th Issue of EFFector:
- Donate to EFF and Stop the Illegal Spying!
- Government Files Secret Motion to Dismiss AT&T Surveillance Case
- AOL Starts Pay-to-Send Email Shakedown
- Court Slows EFF Efforts to Address Ohio E-voting Malfunctions
- Public Interest Wins Big at WIPO Broadcast Treaty Meeting
- Online Rights Canada Launches Action Center
- Support EFF By Donating a Printer
- miniLinks (12): Fire Hatch in 2006
effector: n, Computer Sci. A device for producing a desired change.
Donate to EFF and Stop the Illegal Spying!
Your World. Delivered. To the NSA.
Recent news reports have revealed that AT&T, Verizon, and BellSouth are violating the law and the privacy of millions of ordinary Americans by secretly giving the NSA information about your telephone calls without a court order.
In January, EFF filed a lawsuit against AT&T for collaborating with the NSA. This case is the best way for us to uncover and shut down the government's secret spying program and to hold AT&T accountable.
Stand up for your rights by supporting EFF and our case against AT&T. And please forward this message and spread the word to your friends and family members.
Join EFF today:
More info about the case:
Government Files Secret Motion to Dismiss AT&T Surveillance Case
DOJ Intervention Comes Just Days Before Hearing on Sealed Evidence
San Francisco - Early Saturday morning, the United States government filed a motion to dismiss the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&T for illegally handing over its customers' telephone and Internet records and communications to the National Security Agency. The government claims that its legal brief and two affidavits from senior intelligence officials that accompanied the motion are classified, preventing even the parties to the lawsuit, EFF and AT&T, from seeing them.
While EFF was not permitted to see the government's entire brief, in a redacted version made publicly available the government said that the case against AT&T should be immediately terminated because any judicial inquiry into whether AT&T broke the law could reveal state secrets and harm national security.
"The government is trying to lock out any judicial inquiry into AT&T and the NSA's illegal spying operation," said EFF Staff Attorney Kurt Opsahl. "It is illegal for major telecommunications companies to simply hand over private customer information to the government. They should not be allowed to hide their illegal activity behind government assertions of 'state secrets' to prevent the judiciary from stepping in to expose and punish the illegal behavior. If the government's motion is granted, it will have undermined the freedoms our country has fought so hard to protect."
EFF's federal lawsuit against AT&T alleges that the telecommunications company has given the NSA secret, direct access to the phone calls and emails going over its network, and has been handing over communications logs detailing the activities of millions of ordinary Americans. This week, a USA TODAY report bolstered key allegations in EFF's lawsuit, detailing how AT&T, Verizon, and BellSouth provided phone call records about of tens of millions of their customers to the NSA without any legal authorization. The same week, lawyers at the Justice Department were forced to halt their probe into the DOJ's involvement in the spying program because they were refused security clearance by the NSA.
"The press has already widely reported on the illegal domestic surveillance that is the basis for our case. Allowing a court to determine whether AT&T broke the law would in no way harm national security. Indeed, our case is meant to protect Americans -- by requiring that AT&T follow the law and protect its customers from unchecked spying into their personal communications," said EFF Staff Attorney Kevin Bankston.
On Wednesday, May 17, at 10 a.m., a U.S. District Court judge in San Francisco will hear oral arguments about the unsealing of critical documents in the lawsuit. The sealed evidence at issue includes a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents that support EFF's allegations. AT&T wants the documents returned and argues that they should not be used as evidence in the case. For more information about attending the hearing, please email email@example.com.
Donate to EFF and Stop the Illegal Spying:
For the redacted government motion:
For USA TODAY's story:
For more on the AT&T lawsuit:
AOL Starts Pay-to-Send Email Shakedown
"Certified Mail" Allows Mass Mailers to Bypass Spam Filters
San Francisco - AOL has quietly flipped the switch on its "certified mail" service, delivering pay-to-send email to some of its millions of customers.
The Goodmail CertifiedEmail service allows large mass- emailers to pay a fee to bypass AOL's spam filters and get guaranteed delivery directly into AOL customers' inboxes. The Electronic Frontier Foundation (EFF) believes the pay- to-send model could leave nonprofits, small businesses, and other groups with increasingly unreliable service.
"Many groups suffer from what the Wall Street Journal called 'spam filters gone wild,' and their email never reaches many on their mailing lists," said EFF Activism Coordinator Danny O'Brien. "With AOL's system in place, AOL will be taking money from big companies to skip those filters entirely. If ISPs can make money for a premium service that evades their malfunctioning filters, we worry that they won't fix those filters for groups who do not pay."
While the creators of "certified mail" claim that their programs help customers recognize legitimate worthy causes and vital banking mail in their inbox, the first pay-to-send mailing spotted by EFF was a promotion for Overstock.com. Overstock has every right to reach customers who signed up for its mailing list, but just because corporations have the money to pay for email delivery doesn't make that mail more important than any other non-commercial mail.
"We already know what commercial, paid-for mass mail is, but we don't call it certified mail. We call it junk mail," said O'Brien. "Why should paying ISPs for delivery let some companies gain special access to your inbox?"
EFF and hundreds of other groups have joined together in the DearAOL.com coalition, which formed to urge AOL and other ISPs to reject pay-to-send schemes. However, in a pointed example of how ISP control of your inbox can go wrong, last month AOL silently started dropping email that even mentioned DearAOL.com. After EFF publicized the problem, AOL quickly rectified the situation.
For more on the DearAOL.com Coalition:
For more on AOL's CertifiedEmail launch:
For this release:
Court Slows EFF Efforts to Address Ohio E-voting Malfunctions
Decision Delays Inquiry Into State's History of Voting Machine Problems
San Francisco - The Sixth Circuit Court of Appeals ruled last week that a critical lawsuit aimed at improving the security and integrity of Ohio's voting technology will be put on hold indefinitely. The ruling halts case proceedings until the appeal of the government's motion to dismiss is decided and seriously jeopardizes the chances that critical procedural improvements will be in place by the time voters enter polling places in November.
The Electronic Frontier Foundation (EFF) had intervened in this lawsuit, originally brought by the League of Women Voters of Ohio, in the fall of 2005 on behalf of voter Jeanne White. White's case focuses on the issues surrounding electronic voting and seeks to increase the security and accuracy of Ohio's e-voting technology, as well as to dramatically improve state and local procedures that leave the integrity of the state's e-voting equipment in doubt.
Ohio's closely watched and widely criticized election of 2004 exposed a wide range of problems, complaints, and irregularities in its voting technologies. Among other things, voters reported unacceptably long lines, inadequately trained pollworkers, and voting machines that failed to record their votes correctly. Similar problems were reported in the 2005 elections and in the May 2, 2006, primary, including a chaotic election in Cuyahoga County where election officials have launched a formal investigation. Ohio, however, has no requirements that counties keep formal track of such problems, much less report them to state officials or to the public.
"We had hoped the appellate court would follow the trial court's lead and let the case progress," said EFF Staff Attorney Matt Zimmerman "Without this expedited schedule, the case won't be able to marshal changes to Ohio's voting systems before this November's elections. The state owes it to its citizens to ensure that the problems of the past are identified and won't be repeated. It has, so far, failed to do so."
EFF intends to challenge the Sixth Circuit's recent ruling and to continue to move Ms. White's case forward as quickly as possible. EFF is working with the law firms of Kerger and Associates and Zuckerman, Spaeder, Goldstein, Taylor & Kolker as it pursues this case.
For more on the Ohio suit:
For more on electronic voting:
For this release:
Public Interest Wins Big at WIPO Broadcast Treaty Meeting
The public interest won big at WIPO's latest meeting on the Broadcasting Treaty: the contentious provisions creating unjustified rights for webcasters and simulcasters will be removed from the treaty.
While this is good news, the battle isn't over yet. The remainder of the treaty draft covering "traditional" broadcasters and cablecasters still poses significant problems, and the webcasting and simulcasing proposals are still in play, as a separate draft treaty moving through a slower process. Drafts of the revised treaties are due by August 1.
Why are the webcasting and simulcasting provisions so worrisome? The treaty would have created new 50-year intellectual property rights over Internet transmissions -- backed by technology mandate laws -- that would stifle innovation, impede the free flow of information on the Internet, and create new liability for Internet intermediaries. This would endanger new and existing devices such as TiVos for online radio and transferring recorded programs to your iPod. In addition, creating this new layer of rights above copyright would allow transmitters to restrict re-use of public domain works or music you created and Creative Commons-licensed.
The same concerns could still arise in the new webcasting and simulcasting treaty, but that won't necessarily be the case. Unlike the current broadcasting treaty draft's expansive intellectual property rights framework, a future treaty could focus on a more limited theft of signal or services approach. Last week many member states -- including the U.S. -- expressed support for a treaty more focused on signal theft, which the U.S. delegation is tasked with producing before September.
However, it's still possible that webcasting and simulcasting could come back into the "traditional" broadcasting treaty. The U.S. and E.U. delegations stated that if the WIPO General Assembly does not vote in September to hold a 2007 Diplomatic Conference on "traditional" broadcasting and cablecasting, they want webcasting and simulcasting to be part of the package in future talks.
Even if webcasting and simulcasting are out, the remaining "traditional" broadcasting and cablecasting treaty is still bad news. The treaty could create the global legal framework for tech mandate laws that rival the proposed U.S. broadcast and digital radio flag proposals. As EFF, Intel, and many others have noted, the combination of DRM mandates with novel rights raises serious threats to innovative technologies. As we've discussed in EFFector before, the recent exclusive licensing arrangement between Smithsonian Institution and Showtime Networks, Inc., demonstrates how granting transmitters new rights is likely to restrict access to the public domain.
These issues deserve consideration now, not as an afterthought once the "traditional" broadcasting treaty is almost a fait accompli in September. EFF will keep pushing back against these proposals at future WIPO meetings.
For more on the broadcasting treaty:
For this post and notes from last week's meetings:
Online Rights Canada Launches Action Center
Last year, Online Rights Canada (ORC) launched with the joint support of EFF and the Canadian Internet Policy & Public Interest Clinic (CIPPIC). ORC represents the public interest in critical technology and information policy issues. If you live in Canada, now you can make your voice heard through ORC's brand new Action Center. Even if you don't, spread the word to your friends up north.
Take action now:
Support EFF By Donating a Printer
We are looking for donations of new, high-quality printers. EFF, like all legal firms, has to work with large quantities of paper documents. Can you help by donating a printer of the following minimum specifications?
B/W laser printer, like the HP 4350dtn, with:
* Duplexer (to print both sides of the page)
* Minimum 1000 sheet input capacity
* 40 ppm (pages per minute) or better print speed rating
Color laser printer, like the HP 5550dn, with:
* 11x17 paper size capacity
We are only interested in printers that are new. If you can help us, please contact firstname.lastname@example.org.
We'll provide you with a receipt of your donation for tax purposes and our extreme gratitude.
miniLinks features noteworthy news items from around the Internet.
miniLinks miniLinks features noteworthy news items from around the Internet.
Fire Hatch in 2006
IPac takes aim at the man behind the INDUCE Act and even worse bills.
The NSA v. The Law
The American Bar Association peers into the legality of warrantless wiretaps.
Computers, Freedom, Privacy, and a Prozac, Please
Wendy Grossman writes on a maudlin-seeming CFP conference.
What Does Embedded TV Copy Restriction Look Like?
The future of (broadcast flag) law enforcement: how CGMS-A looks when it's turned on.
Get Legal -- Get OpenOffice
The sort of copying even the BSA can't complain about.
Cartoonist Tom O'Leary does some end-user filtering.
Catalog of Security Bungles
Ryan Singel lists the goofs the TSA has committed in the last year, including high-flying diplomats and octogenerarian "terrorists."
Terrorist Watch List Follies and My Time in the TSA's
Constitution-Free Zone Ars Technica's Hannibal loses some rights at the airport.
Bill To Publish Federal Research Free Online; Middlemen
Object Federal Research Public Access Act would require 11 agencies to put their research online. Academic journals say that giving information directly to taxpayers would affect their markets, giving rise to shock, horror.
Twelve in Congress Likely To Forge Telecom Bill
Commerce committee congressman Upton blurts that broadcast flag/net neutrality bill will be decided in secret conference; judiciary committee chairman begins to muscle in.
Key Congressman Endorses Data Retention
ISPs take another step toward being the government's record keepers.
Potential CIA Head Doesn't Know Fourth Amendment
Although he thinks he does. What's worse?
EFFector is published by:
The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
Derek Slater, Activist
Membership & donation queries:
General EFF, legal, policy, or online resources queries:
Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements & articles may be reproduced individually at will.
Current and back issues of EFFector are available via the Web at: