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EFFector - Volume 19, Issue 35 - Action Alert - Stop Specter's Surveillance Bill on the Senate Floor!


EFFector - Volume 19, Issue 35 - Action Alert - Stop Specter's Surveillance Bill on the Senate Floor!

EFFector Vol. 19, No. 35  September 19, 2006

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 396th Issue of EFFector:

 * Action Alert - Stop Specter's Surveillance Bill on the 
Senate Floor!
 * EFF Battles to Save Critical Ohio E-Voting Case
 * Anonymity Preserved for Online Embroidery Fans
 * Canadian Sony Rootkit Settlement Misses the Mark
 * Microsoft's Zune Won't Play Protected Windows Media
 * Broadcast Treaty Moving Forward Despite Objections
 * Vote for EFF SXSW Conference Panels!
 * Digital Rights Ireland Challenges EU Mass Surveillance 
 * miniLinks (8): Isabella Gardner Museum Podcast Is P2P-
 * Administrivia

For more information on EFF activities & alerts:

Make a donation and become an EFF member today!

Tell a friend about EFF:

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

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* Action Alert - Stop Specter's Surveillance Bill on the 
Senate Floor!

Last week, the Senate Judiciary Committee unfortunately 
passed Senator Specter's dangerous surveillance bill, along 
with a related NSA spying proposal. But this fight is far 
from over -- with your help, we can beat these bills on the 
Senate floor. 

Every day we hold off these bills provides another 
opportunity for the courts and the public to make their 
voices heard. Judges in three courts -- including Judge 
Walker in EFF's case against AT&T -- have already rejected 
the government's bogus arguments shielding the NSA spying 
program. In just over two weeks, Congress will head into 
recess, and the November election gives the public a chance 
to rebuke those who have supported illegal spying. 

Take action now and tell your representatives to stop the 
surveillance bills:

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* EFF Battles to Save Critical Ohio E-Voting Case

Court Fight Continues As Princeton Researchers Demonstrate 
'Vote Stealing'

San Francisco - The Electronic Frontier Foundation (EFF) has 
asked the 6th U.S. Circuit Court of Appeals to reject Ohio's 
latest attempt to dismiss a critical electronic voting case 
-- the final legal hurdle in the path to a thorough 
investigation of the state's widely criticized 2004 election 
and much needed reform.

"Ohio's procedures, like many used elsewhere across the 
country, simply don't do enough to protect voters from the 
serious vulnerabilities in the current generation of 
electronic voting equipment," said EFF Staff Attorney Matt 
Zimmerman. "It's time to let this important case go forward 
so that these critical problems can finally be resolved."

Last fall, EFF filed suit on behalf of voter Jeanne White 
against Ohio Secretary of State J. Kenneth Blackwell and 
Governor Bob Taft, alleging that they had abdicated their 
responsibilities to protect the fundamental right to vote of 
Ohio residents. When White voted on Election Day in 2004, 
the electronic voting machine she used malfunctioned, 
causing her vote to toggle from one candidate to another. 
White's problems were not isolated: other 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.

In its brief, EFF argues that the widespread and deeply 
rooted failings in Ohio's voting system stem from incoherent 
and inadequate procedures, inconsistent standards, and lack 
of planning and training -- all of which raise serious 
questions about the basic fairness of the state's elections. 
The suit aims to require the state to dramatically increase 
the security and accuracy of its voting technology and 
related election procedures.

"The state claims that its election system merely exhibits 
'garden variety' problems and that the blame for those 
should rest on pollworkers and other officials," said 
Zimmerman. "The governor and secretary of state of Ohio, 
however, have the ultimate duty of protecting citizens' 
fundamental right to vote. Instead of trying to avoid 
responsibility for a system in crisis, these officials need 
to step up to their responsibilities."

The lawsuit will also provide the best chance yet to 
demonstrate the true "in the field" performance record of 
electronic voting equipment, details of which are carefully 
controlled by election officials and voting equipment 
vendors. EFF's brief was filed on the same day that 
researchers at Princeton University released a critical new 
report demonstrating the ability to manipulate results on a 
Diebold electronic voting machine. The study, led by 
Professor Edward W. Felten, found that the machine was 
extremely vulnerable to "vote-stealing" attacks that would 
undermine the accuracy of vote counts.

EFF is working with co-counsel Kerger and Associates; 
Zuckerman, Spaeder, Goldstein, Taylor & Kolker; and Heller, 
Ehrman, White and McAuliffe, LLP, as it pursues this case.

For the full appellate brief:

For more on the Ohio suit:

For EFF's report on Professor Felten's research:

For more on the Professor Felten's research:

For this release:

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* Anonymity Preserved for Online Embroidery Fans

Subpoena Withdrawn After EFF Intervenes

San Francisco - The Embroidery Software Protection Coalition 
(ESPC) has dropped its attempt to unmask anonymous 
embroidery fans after the Electronic Frontier Foundation 
(EFF) intervened in the case.

The embroiderers used an online discussion group to share 
information about a long-running campaign to threaten 
purchasers of embroidery designs and software with copyright 
infringement lawsuits. ESPC filed defamation claims against 
some members of the group and then issued a subpoena for 
detailed personal information about every single person who 
joined the discussion group -- whether or not they had ever 
posted a single message.

"ESPC should have never filed this frivolous case in the 
first place. But we're pleased that ESPC now understands 
that it can't use the courts to intimidate those who want to 
talk about ESPC's ham-fisted tactics," said EFF Staff 
Attorney Corynne McSherry. "The First Amendment forbids such 
abusive use of the discovery process."

This case is the latest in EFF's long fight to protect 
anonymity online. EFF lawyers have represented or provided 
amicus support in anonymity cases in California, Colorado, 
and Delaware. Most recently, in Oklahoma, a school 
superintendent withdrew his attempt to unmask anonymous 
online critics after EFF filed a motion to quash his 

For more on this case:

For this release:

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* Canadian Sony Rootkit Settlement Misses the Mark

Almost a year after the Sony BMG rootkit debacle began and 
EFF sued the company on behalf of U.S. customers, Sony BMG 
has finally settled with its Canadian customers. Much of the 
settlement, particularly the compensation customers will 
receive, mirrors the provisions of the U.S. agreement 
approved last May. But the Canadian settlement is missing 
some crucial commitments regarding Sony BMG's future 

The U.S. settlement includes several security testing and 
disclosure requirements should Sony BMG decide to use DRM in 
the future. The Canadian settlement includes none of these 
obligations. Instead, Sony BMG promises merely to notify the 
Canadian court if it releases CDs with DRM that has not been 
independently tested per the U.S. agreement. There are no 
disclosure requirements, no requirements to provide access 
to an uninstaller, no promises not to use DRM that installs 
without your permission, and no commitments on how problems 
will be rectified. 

Worse still, the way that Sony BMG rationalizes these terms 
is woefully inadequate and appears to be an attempt to 
mislead the Canadian courts. Sony BMG insists that it only 
agreed to the "future conduct" provisions in the U.S. 
settlement in response to ongoing investigations by U.S. 
government entities.

But that's simply not how it went down. EFF's first demands 
to Sony BMG included limitations about the company's future 
conduct, and there is no way we would have settled the case 
without them. More importantly, though, whether the Canadian 
government is investigating Sony BMG's conduct should have 
no bearing on whether Canadian customers deserve the same 
protections as U.S. customers.

The Canadian Internet Policy and Public Interest Clinic 
(CIPPIC) has filed a formal objection to the settlement, 
with a supporting affidavit from EFF setting the record 

For the formal objection:

For EFF's supporting affidavit:

For more on the Sony BMG rootkit debacle:

For the original version of this post:

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* Microsoft's Zune Won't Play Protected Windows Media

In last week's announcement of the new Microsoft Zune media 
player and Zune Marketplace, Microsoft (and many press 
reports) glossed over a remarkable misfeature that should 
demonstrate once and for all how DRM and the DMCA harm 
legitimate customers.

Microsoft's Zune will not play protected Windows Media Audio 
and Video purchased or "rented" from Napster 2.0, Rhapsody, 
Yahoo! Unlimited, Movielink, Cinemanow, or any other online 
media service. That's right -- the media that Microsoft 
promised would Play For Sure doesn't even play on 
Microsoft's own device! Buried in footnote 4 of its press 
release, Microsoft clearly states that "Zune software can 
import audio files in unprotected WMA, MP3, AAC; photos in 
JPEG; and videos in WMV, MPEG-4, H.264" -- protected WMA and 
WMV (not to mention iTunes DRMed AAC) are conspicuously 

This is a stark example of DRM under the DMCA giving 
customers a raw deal. Buying DRMed media means you're locked 
into the limited array of devices that vendors say you can 
use. You have to rebuy your preexisting DRMed media 
collection if you want to use it on the Zune. And you'll 
have to do that over and over again whenever a new, 
incompatible device with innovative features blows existing 
players out of the water. Access to MP3s and non-DRMed 
formats creates the only bridge between these isolated 
islands of limited devices.

The real culprit here is the DMCA -- but for that bad law, 
customers could legally convert DRMed files into whatever 
format they want, and tech creators would be free to reverse 
engineer the DRM to create compatible devices. Even though 
those acts have traditionally been and still are non-
infringing, the DMCA makes them illegal and stifles fair 
use, innovation, and competition.

May this be a lesson to those who mistakenly laud certain 
DRM as "open" and offering customers "freedom of choice" 
simply because it is more widely-licensed than other 
formats. With DRM under the DMCA, nothing truly plays for 
sure, regardless of whether you're purchasing from Apple, 
Microsoft, or anyone else.

[Postscript: In an interview with Engadget, Microsoft Zune 
architect J Allard pointed out that Zune has sufficient 
video format support, in part because there's "Lots of DVD 
ripping software out there that encodes to those formats, so 
the most popular formats out there, whether it's MPEG-4 or 
H.264, we'll support those." Gee, he isn't suggesting that 
his business model benefits from customers using tools like 
DeCSS or Handbrake to evade the DRM on DVDs, right? 
Especially since Microsoft is furiously trying to squash the 
FairUse4WM tool, that would seem rather hypocritical.]

For this post and related links:

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* Broadcast Treaty Moving Forward Despite Objections

WIPO's proposed Broadcasting Treaty lurched another step 
forward last Wednesday. In a tense and acrimonious meeting, 
the WIPO Standing Committee on Copyright and Related Rights 
adopted a recommendation that WIPO's General Assembly should 
convene a 2007 Diplomatic Conference to finalize the treaty. 
The 183 WIPO Member States must now decide whether to accept 
that and convene the Conference, when the General Assembly 
meets on September 25 - October 3. It's not at all clear 
whether they will do so, but EFF will be at WIPO to report 
on events as they unfold.

This week's meeting was supposed to reach agreement on the 
content of the draft treaty text, but that did not happen. 
Many countries expressed concerns about the current treaty 
draft, which would grant broadcasters and cablecasters broad 
IP-like rights over anything they transmit, even when 
material is in the public domain. The treaty currently gives 
broadcasters and cablecasters exclusive rights to control 
transmissions of their 'casts over the Internet. Meanwhile, 
the United States supports expanding the treaty to give 50-
year exclusive rights to certain other Internet 
transmissions, deemed "netcasts."

A large and diverse group of public interest organizations, 
artists, U.S telecommunications companies, consumer 
electronics companies, and related industry bodies turned up 
in force to oppose the current draft. Yet again, non-
governmental organizations were not given an opportunity to 
present statements during the meeting. However, EFF 
distributed an open letter to WIPO signed by over 200 
podcasters and podcasting organizations, together 
representing thousands of podcasters. The letter expressed 
podcasters' concerns that the treaty would increase 
complexity for rights clearance and harm the innovation 
environment for online communication technologies.

The Internet community should continue to be very worried 
about this Treaty. Everything now turns on the WIPO General 
Assembly meeting that will take place in two weeks. If the 
General Assembly accepts the Committee's recommendation, 
there will be a two-day preparatory conference in January to 
formulate procedural rules, and what is likely to be a very 
acrimonious Diplomatic Conference in July. If the General 
Assembly votes against moving the treaty to a 2007 
Diplomatic Conference, as it has done for the last two 
years, then the U.S. has indicated that it wants 
"netcasting" back in the treaty. Either way, EFF will be at 
WIPO to defend your rights.

For more on this treaty:

For the original version of this post:

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* Vote for EFF SXSW Conference Panels!

Do you plan on heading to the 2007 SXSW Interactive 
Festival? Would you like to see EFF speak there? This year, 
SXSW is letting you pick the conference panels, and EFF's 
made two proposals:

* Who's Afraid Of A Little Free Speech?
As more and more people find their voice online, we've seen 
a dramatic increase in threats to free expression -- 
bloggers subpoenaed; fair use under fire; students suspended 
for MySpace postings -- even Barney the Purple Dinosaur has 
threatened those who poke fun at him. On this panel, 
attorneys from the Electronic Frontier Foundation (EFF) will 
walk the audience through the latest court cases, legal 
doctrines, and rules of the road to keeping the Internet 

* Cutting Through the Hype: Artists and Fans Talk About 
Music File Sharing
Lawless pirates vs. greedy record executives is the usual 
portrayal of the over 20,000 lawsuits against peer-to-peer 
filesharers. But the truth is much more interesting. Some 
artists and labels criticize the RIAA lawsuits and support 
fans downloading their music. Many P2P users buy CDs and use 
iTunes and Rhapsody. This panel brings together artists and 
fans with diverse views to discuss the present and future of 
music file sharing.

Vote for EFF's panel proposals here:

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* Digital Rights Ireland challenges EU Mass Surveillance 

Last week, Irish civil rights group Digital Rights Ireland 
(DRI) started a High Court action against the Irish 
Government challenging new European and Irish laws requiring 
mass surveillance.

To learn more:

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* miniLinks
The week's noteworthy news, compressed.

~ Isabella Gardner Museum Podcast Is P2P-Friendly
The museum's music collection -- licensed through Creative 

~ Talking Surveillance Cameras in Britain
Lest people forget they are being watched.

~ Another P2P File Sharing Company Down
P2P users largely oblivious, having already moved on to 
other networks.

~ Tor Servers Seized in Germany, Redux
But Tor wasn't targeted.

~ Email Jurisdiction Disagreements
Anti-Anti-Spammers win default judgment, Anti-Spammers 
ignore it.

~ Wikipedia Founder Leads Fork
Inaugurating an experiment to outdo the original.

~ Ultra High Definition TV
An early preview of where high-end consumer electronics may 

~ Cheap Chinese PCs
...and the low-end that may swallow up the bottom of the high-tech market.

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* Administrivia

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	

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