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EFFector - Volume 20, Issue 24 - Court Protects Email from Secret Government Searches

EFFector Vol. 20, No. 24  June 20, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 428th Issue of EFFector:
  • Court Protects Email from Secret Government Searches
  • Judge Orders FBI to Release NSL Abuse Records
  • FBI's Abuse of USA PATRIOT Act Even Worse Than We Thought
  • Senate Committee Sets Subpoena Vote for NSA Docs
  • AT&T to Play Copyright Cop, Sell Out Customers
  • HR 811: Separating Truth From Fiction in E-Voting Reform
  • Blogging WIPO: The New Development Agenda
  • Pay-To-Send Mail Spreads
  • Get LiveJournal For Life and Donate to EFF!
  • miniLinks (11): Bush Administration Attacks 'Shield' for Bloggers
  • Administrivia

For more information on EFF activities & alerts:
 http://www.eff.org/

Make a donation and become an EFF member today!
 http://eff.org/support/

Tell a friend about EFF:
 http://action.eff.org/site/Ecard?ecard_id=1061

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

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* Court Protects Email from Secret Government Searches

Landmark Ruling Gives Email Same Constitutional Protections 
as Phone Calls

San Francisco - The government must have a search warrant 
before it can secretly seize and search emails stored by 
email service providers, according to a landmark ruling 
Monday in the 6th U.S. Circuit Court of Appeals. The court 
found that email users have the same reasonable expectation 
of privacy in their stored email as they do in their 
telephone calls -- the first circuit court ever to make 
that finding.

Over the last 20 years, the government has routinely used 
the federal Stored Communications Act (SCA) to secretly 
obtain stored email from email service providers without a 
warrant. But today's ruling -- closely following the 
reasoning in an amicus brief filed the by the Electronic 
Frontier Foundation (EFF) and other civil liberties groups 
-- found that the SCA violates the Fourth Amendment.

"Email users expect that their Hotmail and Gmail inboxes 
are just as private as their postal mail and their 
telephone calls," said EFF Staff Attorney Kevin Bankston. 
"The government tried to get around this common-sense 
conclusion, but the Constitution applies online as well as 
offline, as the court correctly found. That means that the 
government can't secretly seize your emails without a 
warrant."

Warshak v. United States was brought in the Southern 
District of Ohio federal court by Steven Warshak to stop 
the government's repeated secret searches and seizures of 
his stored email using the SCA. The district court ruled 
that the government cannot use the SCA to obtain stored 
email without a warrant or prior notice to the email 
account holder, but the government appealed that ruling to 
the 6th Circuit. EFF served as an amicus in the case, 
joined by the American Civil Liberties Union and the Center 
for Democracy & Technology. Law professors Susan Freiwald 
and Patricia Bellia also submitted an amicus brief, and the 
case was successfully argued at the 6th Circuit by 
Warshak's counsel Martin Weinberg.

For the full ruling in Warshak v. United States:
http://eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf

For EFF's resources on the case, including its amicus 
brief:
http://www.eff.org/legal/cases/warshak_v_usa

For this release: 
http://www.eff.org/news/archives/2007_06.php#005321

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* Judge Orders FBI to Release NSL Abuse Records

New Evidence of Misuse Prompts Immediate Response in EFF 
FOIA Lawsuit

Washington, D.C.  On Monday, a judge ordered the FBI to 
finally release agency records about its abuse of National 
Security Letters (NSLs) to collect Americans' personal 
information. The ruling came just a day after the 
Electronic Frontier Foundation (EFF) urged the judge to 
immediately respond in its lawsuit over agency delays.

EFF sued the FBI in April for failing to respond to a 
Freedom of Information Act (FOIA) request about the misuse 
of NSLs as revealed in a Justice Department report. This 
week, the Washington Post uncovered more evidence of abuse, 
and EFF urged the judge Thursday to force the FBI to stop 
stalling the release of its records on the deeply flawed 
program.

"The reports we've seen so far about NSL abuse are just the 
tip of the iceberg," said EFF Staff Attorney Marcia 
Hofmann. "FBI officials told the Washington Post that there 
have likely been several thousand total instances of 
misuse. Americans deserve answers about this scandal and 
how the FBI has abused its power to spy on ordinary 
citizens."

Under the USA PATRIOT Act, the FBI can use NSLs to get 
private records about anyone's domestic phone calls, emails 
and financial transactions without any court approval -- as 
long as it claims the information could be relevant to a 
terrorism or espionage investigation. Without a judge's 
oversight, the law is ripe for the abuse that has been 
uncovered in these recent reports.

"The law itself is the source of the problem. It's time for 
Congress to repeal these expanded NSL powers and protect 
Americans from this abuse of authority," said Hofmann.

The judge's order requires the FBI to process 2500 pages of 
NSL-related records by July 5, and then 2500 pages every 30 
days thereafter.

For the judge's order:
http://www.eff.org/flag/nsl/bates_order.pdf

For EFF's supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html

For this release:
http://www.eff.org/news/archives/2007_06.php#005317

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* FBI's Abuse of USA PATRIOT Act Even Worse Than We Thought

According to the Washington Post, "An internal FBI audit 
has found that the bureau potentially violated the law or 
agency rules more than 1,000 times while collecting data 
about domestic phone calls, emails and financial 
transactions in recent years, far more than was documented 
in a Justice Department report in March that ignited 
bipartisan congressional criticism."

That report painted a horror story, including massive 
abuses of so-called National Security Letters (NSLs). 
Before PATRIOT, the FBI could only use NSLs to obtain the 
records of suspected terrorists or spies. But under 
PATRIOT, the FBI can use them to get private records about 
anybody without any court approval, as long as it believes 
the information could be relevant to an authorized 
terrorism or espionage investigation.

From the moment PATRIOT was passed, EFF said the NSL power 
was unconstitutional and ripe for abuse, and these new 
revelations make it more clear than ever that Congress 
should repeal PATRIOT's expansion of NSL powers and reform 
the USA PATRIOT Act as a whole. 

Take action now and tell Congress to stop the abuse of 
surveillance powers:
https://secure.eff.org/site/Advocacy?cmd=display&page=UserAction&id=283

For this post:
http://www.eff.org/deeplinks/archives/005314.php

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* Senate Committee Sets Subpoena Vote for NSA Docs

On the heels of Representatives in the House threatening to 
subpoena documents related to NSA's domestic spying 
program, the New York Times reports that the Senate 
Judiciary Committee has now set a vote on whether to 
authorize subpoenas.

Read the New York Times article: 
http://www.nytimes.com/2007/06/13/washington/13nsa.html

For this post: 
http://www.eff.org/deeplinks/archives/005310.php

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* AT&T to Play Copyright Cop, Sell Out Customers

AT&T has announced plans to sell out its customers.

No, this time we're not talking about spying on telephone 
and Internet communications on the government's behalf. 
AT&T is now kowtowing to the entertainment industry and 
jointly developing undisclosed technical measures in yet 
another desperate attempt to stop "piracy."

AT&T's plan is currently pure vaporware, and it has stated 
that "once a technology was chosen, the company would look 
at privacy and other legal issues." In other words, the 
AT&T Internet traffic cop appears poised to shoot first, 
and ask questions about the impact on your civil liberties 
and ability to access lawful content and applications 
later.

For the entire post and related links:
http://www.eff.org/deeplinks/archives/005311.php

See also Alex Curtis' commentary on Public Knowledge's 
blog:
http://www.publicknowledge.org/node/1009

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* HR 811: Separating Truth From Fiction in E-Voting Reform

After years of painstaking lobbying, email and phone 
campaigns, congressional hearings, and committee markups 
and amendments, Rep. Rush Holt's Voter Confidence and 
Increased Accessibility Act finally appears poised for a 
floor vote in the House of Representatives. With an 
impressive 216 bipartisan co-sponsors, the bill has a real 
chance of passing. If signed into law, HR 811 would 
dramatically improve the electoral process in both the 
short and long term. While it would not solve the immense 
shortcomings in the current system, HR 811 would take a 
giant step towards returning much-needed transparency and 
accountability to the process.

Not unexpectedly, now that the bill has gained traction in 
the 110th Congress, critics have descended onto the bill 
with a fury, complaining that it is too weak or too strong, 
that its deadlines are too ambitious or too distant, that 
it takes too much autonomy away from the states or not 
enough.

EFF strongly supports the passage of HR 811 and hopes that 
you will as well. Don't just take our word for it: read the 
bill for yourself and then make your own decision. If you 
don't think that HR 811 goes far enough, then push for 
passage of complementary legislation, either in Congress or 
with your own State legislatures. EFF will continue to 
support sensible legislative proposals that can build on 
the foundation of HR 811. But whatever you do, don't fall 
for the false choice offered in the breathless rhetoric of 
the "all or nothing" contingent. Don't let the perfect be 
the enemy of the good. And HR 811 is good.

Read the bill:
http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.00811:

Read EFF Staff Attorney Matt Zimmerman's complete analysis 
of the bill:
http://www.eff.org/deeplinks/archives/005308.php

Tell Congress to Support E-Voting Reform:
http://action.eff.org/site/Advocacy?id=109

Read more about EFF's E-voting work:
http://www.eff.org/Activism/E-voting/

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* Blogging WIPO: The New Development Agenda

The World Intellectual Property Organization (WIPO) 
Provisional Committee finished Development Agenda 
discussions in Geneva last Friday. The good news is that it 
recommended creating a new WIPO permanent committee to 
implement 45 public interest-oriented proposals designed to 
turn WIPO into an organization that can help foster 
sustainable development in all its Member States. Somewhat 
surprisingly, the week's closed-door, non-public 
negotiations produced 21 concrete proposals that, if 
adopted, will help WIPO safeguard the public interest and 
promote innovation and knowledge creation.

The Development Agenda meetings are really about the future 
of WIPO as an international organization. As an agency of 
the United Nations, WIPO has an institutional obligation to 
facilitate and implement the wider development perspective 
of the United Nations' Millennium Declaration. In addition, 
as recognized in the 1974 Agreement between the United 
Nations and WIPO, WIPO has an institutional mandate to 
facilitate the transfer of technology and the building of 
technical capacity in developing countries.

Read the complete session updates and see related links:
http://www.eff.org/deeplinks/archives/005320.php

To learn more about the WIPO Development Agenda and EFF's 
role as a permanent observer:
http://www.eff.org/IP/WIPO/dev_agenda/

For the United Nations' Millennium Declaration:
http://www.un.org/millennium/declaration/ares552e.htm 

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* Pay-To-Send Mail Spreads

As EFF members will recall, we were part of a large 
coalition of groups that raised serious concerns about the 
introduction of Goodmail, an email authentication and 
certification service that charges those who send email to 
guarantee delivery, splitting the money with the ISPs who 
are supposed to deliver you your email.

We were concerned that the trend to such pay-to-send email 
would spread and would affect nonprofits and others who run 
large mailing lists who would face the choice of paying or 
not having their email delivered. We were also worried that 
this process was not easily visible to the recipients of 
email -- you and me -- who would not then be able to 
complain when their ISPs stopped delivering email except 
from those willing to pony up. We eventually reached a sort 
of detente with AOL and Yahoo about it, including promises 
from both that they would maintain their ordinary white 
list processes that aren't based on payment but objective 
mailing practices.

Well, Goodmail continues to sign up ISPs, and now has 
announced partnerships with Comcast, Cox, Verizon, and 
Roadrunner. They join AOL and Yahoo! in the CertifiedEmail 
program.

What will happen now that the program has expanded to 
companies whose track record with white and blacklisting is 
shadier, and whose incentives to maintain high mail 
deliverability are lower? 

Find out in our complete post:
http://www.eff.org/deeplinks/archives/005309.php

For more information on our campaign against AOL's 
Goodmail: 
http://www.eff.org/spam/aolmail/

EFF would like to hear from noncommercial email senders who 
run into problems with their email delivery. Contact us at 
 if you've been unable to resolve 
problems with blocking intermediaries when sending your 
noncommercial mass email.

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* Get LiveJournal For Life and Donate to EFF!

From Thursday, June 21, to Thursday, June 28, 2007, 
LiveJournal will make you "an offer you can't refuse." LJ 
will be holding a rare sale of Permanent Accounts for its 
members. The best part of the deal is that if you buy your 
LJ lifetime account during the first 36 hours of the sale, 
Six Apart will donate $25 from your $125 purchase price 
among four worthy organizations: EFF, Creative Commons, 
RAINN and Witness.  You can also choose EFF as the sole 
recipient of the $25 donation.  Either way, we want to 
thank Six Apart for generously supporting EFF with this 
unique event!

To learn more about the "LiveJournal 4 Life" sale:
http://news.livejournal.com/100432.html

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* miniLinks
The week's noteworthy news, compressed.

~ Bush Administration Attacks 'Shield' for Bloggers
Should bloggers have "reporter's privilege"?
http://news.com.com/Bush+administration+attacks+shield+for+bloggers/2100-1028_3-6191053.html

~ Which ISPs Are Spying on You?
Wired News asks the major ISPs about what information they 
gather on their customers.
http://www.wired.com/politics/onlinerights/news/2007/05/isp_privacy

~ Watchdog Group Slams Google on Privacy
A watchdog group says Google's privacy policies are the 
worst on the Internet.
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/09/AR2007060900840.html

~ Yahoo's China Policy Rejected
Yahoo shareholders rejected plans for the company to adopt 
a policy that opposes censorship on the Internet.
http://news.bbc.co.uk/2/hi/business/6747095.stm

~ Censorship Continues in Thailand
Thailand continues to ban YouTube and also blocks the 
blogging platform "Blogger".
http://www.globalvoicesonline.org/2007/06/13/beat-the-censors-a-gift-of-freedom-for-thai-internet-users/

~ Politics and Hip-Hop Are Doing a Mash-Up
Mash up artist Girl Talk meets his champion in Congress.
http://www.msnbc.msn.com/id/19263088/site/newsweek/page/0/

~ AT&T Slammed Over Piracy Plan
AT&T is promising to help Hollywood track down digital 
pirates.
http://contentagenda.com/articleXml/LN627585829.html?industryid=45174

~ Michael Moore on Copyright Law
Filmmaker Michael Moore, whose film Sicko has reportedly 
been pirated, speaks out on copyright law.
http://www.youtube.com/watch?v=OVYhwKu7J5E

~ Can the Music Industry Sue Its Way to Profit?
Publisher Kurt Hanson and attorney Jay Rosenthal debate the 
economics of online music.
http://www.latimes.com/news/opinion/la-op-dustup15jun15,0,43795.story?

~ Arbitrary Sneakwrap Takes Some Hits
Two recent court decisions side with consumers on 
clickwrap/sneakwrap licenses.
http://www.gripe2ed.com/scoop/story/2007/6/19/0355/71352

~ A Recording Industry EULA, Circa 1909
Looks like the fine print has always been bad...
http://www.boingboing.net/2007/06/18/record_company_eulas.html

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
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  http://www.eff.org/	

Editor:
Julie Lindner, Education Outreach Coordinator
 julie@eff.org	

Membership & donation queries:
 membership@eff.org

General EFF, legal, policy, or online resources queries:
 information@eff.org

Reproduction of this publication in electronic media is 
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Press releases and EFF announcements & articles may be 
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Current and back issues of EFFector are available via the 
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