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EFFector - Volume 19, Issue 27 - Judge's Refusal to Dismiss EFF's Spying Case Sets Stage for Congressional Showdown


EFFector - Volume 19, Issue 27 - Judge's Refusal to Dismiss EFF's Spying Case Sets Stage for Congressional Showdown

EFFector Vol. 19, No. 27 July, 2006

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 388th Issue of EFFector:

effector: n, Computer Sci. A device for producing a desired change.

Judge's Refusal to Dismiss EFF's Spying Case Sets Stage for Congressional Showdown

Ruling Comes as Senators Consider Dramatic Changes to Surveillance Law

San Francisco - A federal judge has refused to dismiss the Electronic Frontier Foundation's (EFF's) case against AT&T for collaborating with the NSA in illegal spying on millions of ordinary Americans, setting the stage for a congressional showdown over proposed dramatic changes in federal surveillance law.

EFF filed the class-action suit against AT&T in January, alleging that the telecommunications company has given the National Security Agency (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. The government intervened in the case and asked that it be dismissed because the suit could expose "state secrets." But last Thursday, U.S. District Judge Vaughn Walker refused: "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

"We are gratified that Judge Walker rejected the government's overbroad claims of secrecy, and that our case on behalf of AT&T customers can go forward," said EFF Staff Attorney Kevin Bankston. "Judge Walker correctly found that the government, after having already admitted to and extensively commented on the NSA's spying program, cannot now claim that it is a secret and sweep AT&T's role under the rug."

EFF's victory against government secrecy, however, comes in the shadow of a legislative proposal that could spell trouble for court challenges against the NSA program. Pennsylvania Senator Arlen Specter and the White House recently announced a deal on legislation that could lead the government to attempt to shuffle EFF's lawsuit and other challenges out of the traditional court system and into a secret court created by the Foreign Intelligence Surveillance Act (FISA). Until now, the FISA court's only job has been to approve secret surveillance requests by the government, in proceedings where only government lawyers get to argue.

"A decision to bury these cases in the shadowy FISA court would not only violate our nation's tradition of open judicial proceedings, it's also unnecessary," said EFF Staff Attorney Kurt Opsahl. "As Judge Walker demonstrated today, the conventional court system is perfectly capable of handling these cases and can do so by balancing the public's need for transparency with proper protections for security. Any bill that would attempt to sweep these cases into the secret court should be rejected."

Judge Walker has requested that the parties submit briefs by July 31 on how the case should proceed if the government and AT&T appeal his decision as expected, and a hearing will take place August 8. Also, on July 27, a panel of judges will consider whether to consolidate this case with others challenging the illegal spying program.

For a recording of EFF's teleconference after the ruling:

For the judge's full decision:

For key quotes from the decision:

For more on the draft surveillance bill:

For more on the AT&T lawsuit:

For this release:

Spread the Word: Stop the Surveillance Bills!

EFF needs your help to stop Specter's surveillance bill and others like it. Specter's sham "compromise" will help the government continue to break the law, vastly expanding the president's power to spy on you without any meaningful oversight from Congress or the courts.

Tell your representatives to reject these bills now:

Forward that link around to friends and family, and post about this issue on your blog. You can get more information and a blog button by visiting:

Digital Copyright Battle Puts Linking at Risk

EFF and Libraries Support Google Image Search Against Adult Website

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of library organizations filed a brief with the Ninth Circuit Court of Appeals in San Francisco last Thursday supporting Google Image Search in a showdown over critical digital copyright issues.

Adult entertainment publisher Perfect 10 claims that Google's Image Search service violates copyright law by indexing Perfect 10 photos posted on unauthorized websites, then making and delivering thumbnail images of those photos in its search results. Perfect 10 also contends that Google should be held liable for any copyright infringement that occurs on sites that Google links to.

"Perfect 10 wants to hold Google responsible for the misdeeds of the websites it links to," said Senior Intellectual Property Attorney Fred von Lohmann. "No search engine could survive if that were the rule, nor, for that matter, could most bloggers or other web publishers. If Perfect 10 succeeds in convincing the court that in-line linking and framing of images constitutes a public display or distribution of copyrighted work, then millions of web publishers and bloggers will suddenly be on the wrong side of copyright law -- as well as the millions of web users who may follow a link to a website with infringing content."

The case is on appeal from a lower court ruling issued in February 2006 that ordered Google to remove links to certain websites containing Perfect 10 photographs pending the outcome of the case. Experts, however, widely viewed the ruling as a victory for Google, as the court rejected many of Perfect 10 arguments.

Because the appeal promises to clarify the copyright rules that apply to search engines and other web publishers who link to content on the Internet, it has attracted the attention of the recording industry, motion picture studios, professional photographers, and the technology sector, each of which has also filed briefs in the case.

EFF's amicus brief was filed on behalf of EFF and the Library Copyright Alliance. Members of LCA include the American Library Association, the Medical Library Association, the American Association of Law Libraries, the Association of Research Libraries, and the Special Libraries Association.

A ruling in this case is not expected for several months.

For the full amicus brief:

For more on Perfect 10 v. Google:

Deep Link providing analysis of the lower court ruling:

For this release:

Texas Judge Briefed by EFF Affirms Phone Privacy

Government Needs a Warrant to Get Dialed Digits That Are Call Content

San Francisco - In the first ruling of its kind, a federal magistrate judge has held that the government must obtain a search warrant to collect the content of a telephone call, even when that content is dialed digits like bank account numbers, social security numbers or prescription refills. The decision from Magistrate Judge Smith in Houston closely follows the reasoning outlined in an amicus brief from the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT).

The Texas judge invited EFF to file the brief in response to requests from government investigators to use a "pen register" or "trap and trace device" to collect all numbers dialed on a phone keypad after a call has been connected. Investigators can typically get "pen/trap" orders under a legal standard much lower than the "probable cause" required for a typical phone-tapping warrant, because only phone numbers used to connect the call are collected, not the content of the phone call itself.

However, the judge found that when it comes to dialed numbers that represent call content, federal statutes require that investigators either get a probable cause warrant or use filtering technology to ensure that only dialed phone numbers are collected. In fact, according to the court, "Congress ordered law enforcement to do just that, 12 years ago, yet the court notes that the government's current practice is to collect all dialed digits without using any filtering technology."

"Judge Smith correctly recognized that the privacy protections for your phone calls shouldn't depend on whether the information you are communicating is spoken or dialed," said EFF Staff Attorney Kevin Bankston. "Whether it's your bank account number, your social security number, your prescription refill, or even your vote for American Idol, the government has to get a search warrant to tap the numbers you dial after your call has been connected. Allowing such taps without a warrant not only violates longstanding statutes, as the court found here, but the Constitution itself--which makes it all the more troubling that government investigators have been collecting such information without a warrant for years."

In the same opinion, Judge Smith also rejected a new government request to track the location of someone's cell phone without a warrant. EFF has briefed two other courts on the cell-tracking issue, which has been a continuing controversy since Judge Smith and another judge in New York first published decisions on the issue last fall. Those decisions revealed that government investigators had routinely been tracking cell phones for years without getting warrants based on frivolous legal arguments.

For the judge's decision:

For EFF and CDT's amicus brief:

For this release:

Anonymity Preserved for Critics of Oklahoma School Official

Subpoena Withdrawn After EFF Intervenes

Tulsa, Oklahoma - An Oklahoma school superintendent has dropped his attempt to unmask the identities of a website operator and all registered users of an Internet message board devoted to discussion of local public schools after the Electronic Frontier Foundation (EFF) intervened in the case.

Jerry Burd, superintendent of the Sperry, Oklahoma, school district, had sued anonymous speakers who criticized him on an online message board. As part of the case, he filed a broad subpoena seeking to identify the site's creator and everyone who had posted or even registered on the site, violating First Amendment protections for anonymous speech and association. Working with Tulsa attorneys Greg Bledsoe and Curtis Parks, EFF filed a motion to quash the subpoena on behalf of the site's operator and a registered user. The superintendent responded by dismissing the case last Monday.

"We're disappointed that Mr. Burd filed this frivolous case in the first place, but we're pleased that he finally recognized that it's wrong to use the discovery process to try to scare his critics into silence," said EFF Staff Attorney Corynne McSherry. "Free-ranging public debate and criticism is essential to promoting effective and responsive public schools."

The Oklahoma case is the latest win for EFF in preserving anonymity in online speech. In recent months, EFF lawyers have represented or provided amicus support in anonymity cases in California, Colorado, and Delaware.

"The right to engage in anonymous communication is fundamental to a free society," said Staff Attorney Matt Zimmerman. "It's critical that judges resist attempts by anyone -- public officials especially -- to turn courtrooms into vehicles to harass and intimidate people out of speaking their minds. Thankfully, court after court has recognized that a plaintiff doesn't have an automatic right to pierce anonymity just because he doesn't like what someone has said."

For EFF's full motion to quash the subpoena:

For more on online anonymity:

For this release:

Sony-BMG Offers Jessica Simpson Download as MP3

Here's the latest evidence that DRM is beginning to lose its charm for the major record labels -- Sony-BMG is offering a new "customizable" Jessica Simpson track for download through Yahoo Music. And it's an MP3. That's right, no DRM restrictions. Plays on your iPod.

And look what Yahoo has to say about it: "Our position is simple: DRM doesn't add any value for the artist, label (who are selling DRM-free music every day -- the Compact Disc), or consumer, the only people it adds value to are the technology companies who are interested in locking consumers to a particular technology platform."

Couldn't have said it better ourselves.

For the Yahoo! Music Blog's announcement:

For the original version of our post:

Come Visit EFF at OSCON and DefCon

EFF will be at the O'Reilly Open Source Convention (OSCON) in Portland, Oregon on July 26-27. Please visit our booth and grab some schwag:

EFF will also head down to DefCon in Las Vegas, Nevada on August 4-6. Along with hanging out at our booth, EFFers will present two panels, including a special presentation about our case against AT&T:

Prior to DefCon, Vegas 2.0 will once again host a fundraiser for EFF on August 3, from 9 PM until midnight. More details to follow here:


miniLinks features noteworthy news items from around the Internet.

Rumor: MS xPod Won't PlayForSure
Report says that Microsoft's new portable music device will be "incompatible with other Windows Media services."

Pew Study on Bloggers
Pew presents stats on the diverse demographics of bloggers and reasons for blogging.

Burn Your Own DRMed DVDs!
Nothing so empowering as wrapping movies in DRM yourself.

What's the DMCA Good For? Platform Monopolies
Tim Lee argues against the efficiency of the iTunes-iPod tie and other such restrictions enabled by the DMCA and DRM.

Audio Interview Update on DRM Mandates
EFF's own Fred von Lohmann gets you up to speed on the broadcast and audio flags in an interview with eHomeUpgrade.


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Derek Slater, Activist

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