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EFFector - Volume 19, Issue 2 - Here We Go Again: Law Attempts To Limit Anonymous Online Speech

EFFector       Vol. 19, No. 1       January 13, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 363rd Issue of EFFector:


Here We Go Again: Law Attempts To Limit Anonymous Online Speech

Last week, the Violence Against Women and Department of Justice Reauthorization Act of 2005 was signed into law, and a blow was struck against free speech on the Internet. VAWDOJRA is a complex bill, covering a wide variety of topics, but one subsection received little attention before it was signed by the President: Section 113. Dubbed "Preventing Cyberstalking," Section 113 amends the Telecommunication Act's prohibitions on anonymous annoyance over the telephone to include "any device or software that can be used to originate...communications that are transmitted, in whole or in part, by the Internet." Such as, for example, your modem.

Arguably, this is not a change in the law. The Communications Decency Act added the term "telecommunications device" to the statute, which had regulated telephones for years before, and courts have interpreted this to mean a modem (and therefore it would apply to Internet speech). However, when that statute, as modified by the CDA, was challenged in ApolloMEDIA Corp. v. Reno, the court interpreted the challenged section to apply only to obscene speech, not to "indecent" communications made "with an intent to annoy." The provision here is different--it speaks neither of indecent nor obscene speech and was thus not directly affected by ApolloMEDIA. Nevertheless, a court considering this provision may also be guided to find a reading of the revised law that will comport with the First Amendment.

It is well-settled that the U.S. First Amendment shelters the right to speak anonymously. As the Supreme Court has held, "Anonymity is a shield from the tyranny of the majority" that "exemplifies the purpose" of the First Amendment: "to protect unpopular individuals from retaliation...at the hand of an intolerant society." There are already laws on the books that prohibit harassment, and one can use subpoenas--with judicial oversight--to unmask anonymous speakers who violate the law. There is no need to criminalize the very act of communicating anonymously, even if the recipient is annoyed by the communication.

If this poorly drafted law is not limited by the courts, it could open the door to invasive subpoenas for identity information. Under this criminal provision, vague words like "annoy" could make it easier for aggressive prosecutors to allege an intent to annoy and go after people who were only engaging in voracious public debate.

Fortunately, there has been little activity under the old law for Internet speech, and we can only hope that the new revision does not mean that more aggressive uses are in our future.

Full analysis from EFF:
http://www.eff.org/deeplinks/archives/004308.php#004308

Violence Against Women and Department of Justice Reauthorization Act of 2005:
http://www.govtrack.us/congress/bill.xpd?bill=h109-3402


iTunes "Phone Home" Feature Part of Dangerous Data Collection Trend

This week at MacWorld, Apple unveiled version 6.0.2 of iTunes, which it simply claimed "includes stability and performance improvements over iTunes 6.0.1." Among these so- called improvements is the Apple iTunes MiniStore--a localized "recommendation" engine that would look at what you listen to and then suggest additional songs and artists you might like. The MiniStore arrives turned on by default without asking a user's permission first.

However, as news reports have revealed this week, it appears that the MiniStore also automatically transmits your listening information over the Internet back to the Apple Mothership. What Apple does with this information is unknown, although Apple has represented that it is not collecting data on its users--yet. Nor has Apple disclosed the steps it takes to prevent disclosure or leakage of the information to third parties.

Ironically, this news comes on the heels of the recent Sony BMG DRM fiasco, a part of which included an undisclosed "phone home" feature of its own. While the Apple MiniStore isn't a rootkit DRM, it is part of a dangerous trend EFF has been witnessing in the digital music space market. When companies like Apple and Sony BMG start adjusting or installing software to micro-monitor our personal and private actions, even under the rubric of convenience, it is just one short stop down the road toward attempting to condition and control our behavior. All it takes is an enforcement protocol to turn recommendations into restrictions overnight.

If companies like Apple are truly about user empowerment, they must watch this trend closely and remain on the right side of it. Allowing users to upload information voluntarily and expressly with adequate privacy protections is pro-user; surreptitiously siphoning it into a remote database without any privacy guarantees is not. It's time for Apple to pick a side of the line and walk it.

Note: You can turn off the Apple MiniStore by hitting Shift- Command-M, or choose Edit: Hide MiniStore. EFF recommends that iTunes users do so until Apple at least comes clean about its MiniStore data practices.

More from Macworld:
http://www.macworld.com/weblogs/editors/2006/01/ministore/

More from BoingBoing:
http://www.boingboing.net/2006/01/11/steve_jobs_apple_dis.html


Digital Vinyl: The Opposite of Sony BMG

There's a new trend underway among indie labels, dubbed "digital vinyl": offering free MP3 downloads for customers who buy albums on vinyl. First Merge Records offered free downloads to those who bought vinyl releases by Clientele and Robert Pollard. Now Saddle Creek Records has announced that it will do the same thing for its customers who prefer vinyl, starting with What the Toll Tells, the new record by Two Gallants due in February.

For a variety of reasons, vinyl has enjoyed a resurgence of popularity among music fans. Unfortunately, music fans who own turntables and iPods find themselves in a bit of a quandry.

Who cares, you say? How many people could that be, you say? Well, smart independent labels aren't asking those questions. Instead, they are trying to make their customers happy, even the vinyl-loving, iPod-equipped ones.

Quite a stark contrast to the likes of EMI and Sony BMG, whose copy-protected CDs are stopping music fans from getting their CDs into their iPods.

More information on Merge downloads:
http://www.pitchforkmedia.com/news/05-11/04.shtml

More information on Saddle Creek downloads:
http://www.aversion.com/news/news_article.cfm?news_id=5750


NSA Electronic Surveillance: Law Profs Weigh In

On December 22, the DOJ published a letter attempting to provide a legal justification of the NSA's warrantless electronic surveillance of persons within the United States. While the wiretaps would violate the Foreign Intelligence Surveillance Act on its face, the government argues that the Authorization to Use Military Force (AUMF) implicitly authorized the secret NSA wiretaps, and, even if it did not, it is authorized by the President's Article II role as Commander in Chief.

Last week, the Congressional Research Service, a non-partisan research arm of the Library of Congress, released a memorandum concluding that "it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations." Moreover, the CRS opined that the DOJ's analysis "does not seem to be as well-grounded as the tenor of that letter suggests."

Monday, a group of 14 law professors and former government officials, including the Deans or former Deans of Yale, Stanford, and the University of Chicago Law Schools, a former Director of the FBI, a former Deputy Attorney General, and a former Acting Solicitor General, released a letter that concludes, "[the] DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program." It also notes "serious questions about the validity of the program under the Fourth Amendment."

The CRS memo and the law professor letter serve to highlight the plain truth that the domestic surveillance program is neither lawful nor constitutional. As the great Justice Louis D. Brandeis recognized, the Constitution has "conferred, as against the government, the right to be let alonethe most comprehensive of the rights and the right most valued by civilized men." Warrantless domestic surveillance violates this sacred right and endangers the foundations of freedom upon which the United States of America was built.

As Samuel Adams once said, "The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks." Visit our Action Center and tell your Senators and Representative to support hearings to get to the bottom of the NSA program.

Monday's letter:
http://www.nybooks.com/articles/18650

Congressional Research Service memorandum:
http://www.fas.org/sgp/crs/intel/m010506.pdf

Department of Justice letter:
http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf


Nominate a Pioneer for EFF's 2006 Pioneer Awards!

EFF established the Pioneer Awards to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology. This is your opportunity to nominate a deserving individual or group to receive a Pioneer Award for 2006.

The International Pioneer Awards nominations are open both to individuals and organizations from any country. Nominations are reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.

This year's award ceremony will be held in Washington, DC, in conjunction with the Computers, Freedom and Privacy conference (CFP), which takes place in early May.

How to Nominate Someone for a 2006 Pioneer Award:

You may send as many nominations as you wish, but please use one email per nomination. Please submit your entries via email to pioneer@eff.org. We will accept nominations until February 1, 2006.

Simply tell us:
1. The name of the nominee; 2. The phone number or email address or website by which the nominee can be reached, and, most importantly; and 3. Why you feel the nominee deserves the award.

Nominee Criteria:

There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply:

  1. The nominees must have contributed substantially to the health, growth, accessibility, or freedom of computer-based communications.
  2. To be valid, all nominations must contain your reason, however brief, for nominating the individual or organization and a means of contacting the nominee. In addition, while anonymous nominations will be accepted, ideally we'd like to contact the nominating parties in case we need further information.
  3. The contribution may be technical, social, economic, or cultural.
  4. Nominations may be of individuals, systems, or organizations in the private or public sectors.
  5. Nominations are open to all (other than current members of EFF's staff and executive board or this year's award judges), and you may nominate more than one recipient. You may also nominate yourself or your organization.
  6. Persons or representatives of organizations receiving an EFF Pioneer Award will be invited to attend the ceremony at EFF's expense.

More on the EFF Pioneer Awards:
http://www.eff.org/awards/pioneer/


miniLinks

miniLinks features noteworthy news items from around the Internet.

In Praise of Imitation
William Patry thoughtfully considers the effect of the anxiety of influence--and the fear that any copying is morally and legally wrong--on new creators.
http://williampatry.blogspot.com/2006/01/in-praise-of-imitation.html

What Tech Companies Can Do to Protect Free Speech
Reporters Without Borders has a checklist.
http://www.rsf.org/article.php3?id_article=16121

Senate Judiciary Committee to Fix All Known Tech Problems This Quarter
David Isenberg lists the Committee's packed agenda, with links to webcasts.
http://isen.com/blog/2006/01/telecom-hearings-in-senate_113673582460951522.html

Calls for House Criminal Investigation
Representatives look for a House panel and a DOJ investigation into the constitutionality of the NSA wiretaps.
http://www.bespacific.com/mt/archives/010085.html

USPTO and Open Source Community Working to Fix Patents
Groklaw reports on the team attempting to fix the software patent problem.
http://www.groklaw.net/article.php?story=2006011009141979

Hoofnagle's Consumer Privacy Top 11
EPIC's Chris Hoofnagle gives a laundry list of the quickest, easiest ways you can protect your privacy.
http://west.epic.org/archives/2005/11/hoofnagles_cons.html

Pretexting Isn't Lying?
Companies that steal your phone records do so by pretending to be you. But that's not lying, apparently.
http://west.epic.org/archives/2006/01/pretexting_isnt.html

Microsoft and Falun Gong Repression
An FG organization pulls together the evidence of the extent of Microsoft involvement in Chinese repression.
http://www.zhuichaguoji.org/en/index2.php?option=content&task=view&id=156&pop=1&page=0

Never Buy an Anti-DRM CD Again
Pledge to boycott DRM publicly (especially if you weren't planning to anyway).
http://www.pledgebank.com/boycottdrm


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