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EFFector - Volume 20, Issue 25 - Ten Years After ACLU v. Reno: Free Speech Still Needs Defending


EFFector - Volume 20, Issue 25 - Ten Years After ACLU v. Reno: Free Speech Still Needs Defending

EFFector Vol. 20, No. 25  June 25, 2007

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 429th Issue of EFFector:
  • Ten Years After ACLU v. Reno: Free Speech Still Needs Defending
  • Action Alert - Stop the National ID Expansion!
  • Dangerous Ruling Forces Search Engine to Log Users
  • Congress Set to Uncover Truth About NSA Spying Program
  • Travelers Deserve Protection from Baseless Laptop Searches
  • Blogging WIPO: Broadcasting Treaty Deferred Indefinitely
  • DVD Home Media Server, We Hardly Knew You
  • Viacom Nets, Releases Another Fair Use Dolphin
  • miniLinks (14): Former FISA Judge Criticizes Wiretap Program
  • Administrivia

For more information on EFF activities & alerts:

Make a donation and become an EFF member today!

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

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* Ten Years After ACLU v. Reno: Free Speech Still Needs 

Online free speech faces many threats today, but the 
Internet's incredible abundance and variety of expression 
might never have blossomed to begin with if the first major 
court battle had gone the wrong way.

Tuesday marks the ten-year anniversary of the U.S. Supreme 
Court's landmark decision in Reno v. ACLU, which recognized 
that free speech on the Internet merits the highest 
standards of Constitutional protection. EFF participated as 
both plaintiff and co-counsel in the case, which 
successfully challenged the online censorship provisions of 
the Communications Decency Act (CDA) of 1996. The Court's 
decision -- its first involving the Internet -- was issued 
on June 26, 1997.

The CDA fight was one of the first big rallying points for 
online freedom. When the law passed, thousands of websites 
turned their backgrounds black in protest. EFF launched its 
"blue ribbon" campaign and millions of websites around the 
world joined in support of free speech online. Even today, 
you can find the blue ribbon throughout the Web.

EFF Senior Counsel David Sobel, who served as co-counsel in 
the case, notes: "The Reno decision defined the First 
Amendment for the 21st century. The Court wrote on a clean 
slate and established the fundamental principles that 
govern free speech issues in the electronic age."

EFF's work over the past ten years demonstrates that while 
the technology might evolve, threats to online expression 
persist and core First Amendment principles must be 
vigilantly defended. The CDA was a crystal clear case of 
unconstitutional government censorship, and the challenges 
today are sometimes more complex. EFF's efforts today 

    * Intermediaries: EFF fights to protect Internet 
middlemen -- like hosting services, search engines, and 
ISPs -- from overreaching liability, so that creators of 
amazing free speech tools don't have to worry about being 
held responsible for everything that Internet users say.
    * "Fair Use": EFF defends "fair use" of copyrighted 
material, including its ongoing campaign to counter bogus 
copyright takedowns on YouTube and elsewhere.
    * Bloggers' Rights: EFF promotes bloggers' rights 
through litigation and distribution of a comprehensive 
legal guide.
    * Anonymous speech: EFF supports online anonymity, 
primarily through representation of defendants in "John 
Doe" lawsuits filed by large corporations and thin-skinned 
public officials who want to intimidate their anonymous 
    * "Right to Know": EFF uses the Freedom of Information 
Act to promote the public's "right to know" and facilitate 
informed and open debate on technology and civil liberties 

The fight against direct government censorship of online 
speech continues, too. EFF continues to participate in the 
pending litigation against the Children's Online Protection 
Act (COPA), a slightly narrower but still gravely dangerous 
version of the CDA that the Supreme Court has twice 

While it can sometimes seem that there are more fronts than 
ever in the fight for free speech online, the battles we 
face today would be much, much harder without that first 
victory in ACLU v. Reno. With your help, we'll fight to 
make sure that ten years from now, we can look back and see 
how today's battles helped pave the way for an even better 
future online.

For the Reno v. ACLU decision:

For a news article on the "Turn the Web" black protest:

For the Blue Ribbon campaign:

For this post and more related links:

Support EFF and become a member today!

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* Action Alert: Stop the National ID Expansion!

Thousands of individuals and sixteen states have already 
told the federal government to dump the privacy-invasive 
REAL ID Act, which would standardize drivers' licenses into 
a national ID and create databases linking the records 
together. But instead of listening to the public, members 
of Congress are renewing their efforts to ram the unfunded 
mandate down everyone's throats. A provision smuggled into 
the major immigration reform bill would effectively force 
every American to present a standardized national ID in 
order to get a job and establish a huge "employment 
verification" system filled with personal information.  

The proposal is set for a floor vote next week -- call your 
Senator now to stop the national ID expansion:

This bill realizes one of our main fears about REAL ID -- 
once in place, uses of the IDs and database will inevitably 
expand to facilitate a wide range of tracking and 
surveillance activities. Remember, the Social Security 
number started innocuously enough, but it has become a 
prerequisite for a host of government services and been co-
opted by private companies to create massive databases of 
personal information.

The proposed employment verification system is bound to 
contain errors impacting millions of Americans, and, along 
with inevitable delays implementing REAL ID, that could 
present unnecessary hurdles when you apply for a job. The 
verification system would also make your private 
information more vulnerable to government misuse, security 
breaches, and identity theft.

The more uses created for REAL ID, the harder it becomes to 
get the Act off the books entirely. Tell your Senators to 
fix this part of the immigration bill by supporting Senate 
Amendments 1236 and 1441:

To learn more about what's wrong with REAL ID, see EFF's 
issue page:

For the ACLU's REAL ID webpage:

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* Dangerous Ruling Forces Search Engine to Log Users

Public Interest Groups Urge Court to Block Radical 
Expansion of Discovery Rules

San Francisco - The Electronic Frontier Foundation (EFF) 
and Center for Democracy and Technology (CDT) urged a 
California court Friday to overturn a dangerous ruling that 
would require an Internet search engine to create and store 
logs of its users' activities as part of electronic 
discovery obligations in a civil lawsuit.

The ruling came in a copyright infringement lawsuit filed 
by motion picture studios against TorrentSpy, a popular 
search engine that indexes materials made publicly 
available via the Bit Torrent file sharing protocol. 
TorrentSpy has never logged its visitors' Internet Protocol 
(IP) addresses. Notwithstanding this explicit privacy 
policy, a federal magistrate judge has now ordered 
TorrentSpy to activate logging and turn the logged data 
over to the studios.

"This unprecedented ruling has implications well beyond the 
file sharing context," said EFF Staff Attorney Corynne 
McSherry. "Giving litigants the power to rewrite their 
opponent's privacy policies poses a risk to all Internet 

The magistrate judge incorrectly reasoned that, because the 
IP addresses exist in the Random Access Memory (RAM) of 
TorrentSpy's webservers, they are "electronically stored 
information" that must be collected and turned over to the 
studios under the rules of federal discovery.

This decision could reach every function carried out by a 
digital device. Every keystroke at a computer keyboard, for 
example, is temporarily held in RAM, even if it is 
immediately deleted and never saved. Similarly, digital 
telephone systems make recordings of every conversation, 
moment by moment, in RAM.

"In the analog world, a court would never think to force a 
company to record telephone calls, transcribe employee 
conversations, or log other ephemeral information," said 
EFF Senior Staff Attorney Fred von Lohmann. "There is no 
reason why the rules should be different simply because a 
company uses digital technologies."

The decision also threatens to radically increase the 
burdens that companies face in federal lawsuits, 
potentially forcing them to create and store an avalanche 
of data, including computer server logs, digital telephone 
conversations, and drafts of documents never saved or sent.

The magistrate judge in the case has stayed her order while 
TorrentSpy appeals the ruling. The case is Columbia 
Pictures Industries v. Bunnell, No. 06-01093 FMC, pending 
in the U.S. District Court for the Central District of 
California before Judge Florence-Marie Cooper.

Read the full amicus brief:

For this post:

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* Congress Set to Uncover Truth About NSA Spying Program

Vote to Authorize Subpoenas Sets Stage for Showdown Over 
Illegal Surveillance

San Francisco - The Senate Judiciary Committee voted 
Thursday to authorize subpoenas related to the National 
Security Agency (NSA)'s domestic spying program, setting 
the stage for a Congressional showdown over the 
surveillance of millions of ordinary Americans. The 
subpoenas demand certain legal documents that the 
Administration has withheld despite repeated requests from 

"This subpoena authorization is a critical first step 
toward uncovering the full extent of the NSA's illegal 
spying and the role that telecommunications companies like 
AT&T played in it," said EFF Staff Attorney Kevin Bankston. 
"Considering that it's been almost six years since the NSA 
started spying on Americans without warrants and over a 
year since that spying was revealed publicly, these 
subpoenas are long overdue. It's high time for Congress to 
get to the bottom of this mess."

The Electronic Frontier Foundation (EFF) is suing AT&T for 
illegally assisting in the NSA spying. The government has 
asked the 9th U.S. Circuit Court of Appeals to dismiss 
EFF's case, claiming that the lawsuit could expose state 

"Our case against AT&T includes evidence from a former 
employee that points to a massive spying program impacting 
millions of people -- a program far broader than the 
government has admitted to," said Bankston. "Americans 
deserve to know the truth about the NSA program."

For more on EFF's class-action lawsuit against AT&T:

For this post:

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* Travelers Deserve Protection from Baseless Laptop 

EFF Urges Court to Protect Privacy at Border Crossings

San Francisco - The government should not search travelers' 
computers at border crossings without suspicion, said the 
Electronic Frontier Foundation (EFF) and the Association of 
Corporate Travel Executives (ACTE) in an amicus brief filed 
today in the 9th U.S. Circuit Court of Appeals.

Over the past several years, U.S. Customs Agents have been 
searching and even seizing travelers' laptops when they are 
entering or leaving the country if the traveler fits a 
profile, appears to be on a government watch list, or is 
chosen for a random inspection. The Supreme Court has ruled 
that customs and border agents may perform "routine" 
searches at the border without a warrant or even reasonable 
suspicion, but EFF and ACTE argue that inspections of 
computers are far more invasive than flipping through a 

"Our laptop computers contain vast amounts of personal 
information about our lives. You may do your banking on 
your computer, for example, or send email to your doctor 
about health concerns," said EFF Senior Staff Attorney Lee 
Tien. "Travelers should not be subjected to 
unconstitutionally invasive searches of their laptops and 
other electronic devices just because they are crossing the 

The case in front of the 9th Circuit, United States v. 
Arnold, arose out of a suspicionless "profile" search of 
Michael Timothy Arnold's computer at Los Angeles 
International Airport. The search uncovered evidence of 
alleged child pornography, and Mr. Arnold moved to suppress 
the evidence as the product of an unconstitutional search. 
The district court ruled that the agents lacked a 
reasonable basis to suspect Mr. Arnold of having committed 
a crime, and the government appealed the ruling. Mr. Arnold 
is represented by the Pasadena law firm of Kaye, McLane & 
Bednarski, LLP. The EFF-ACTE amicus brief was prepared by 
Arent Fox LLP.

For the full amicus brief:

For this post:

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* Blogging WIPO: Broadcasting Treaty Deferred Indefinitely

Negotiations on the proposed WIPO Broadcasting Treaty ended 
in Geneva on Friday with some welcome news. WIPO Member 
States agreed to recommend that the WIPO General Assembly 
postpone the high-level intergovernmental Diplomatic 
Conference at which the draft treaty could have been 
adopted, and move discussions back to regular committee 
meetings, down a significant notch from the last two 
"Special Session" meetings.

Apart from pulling the plug on a diplomatic conference that 
seemed doomed for failure, Friday's decision also provides a 
much-needed opportunity for WIPO to start focusing on other 
initiatives, such as facilitating access to knowledge, 
evaluating the impact of legally-enforced technological 
protection measures on exceptions and limitations, and 
Chile's 2004 proposal for mandatory exceptions and 
limitations to copyright law for education, the disabled 
and libraries and archives.

Read EFF's briefing paper on the latest treaty draft:

Read the Open Letter to WIPO:

For EFF's WIPO Broadcasting Treaty page:

For the entire update and related links:

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* DVD Home Media Server, We Hardly Knew You

In April, a California court ruled that Kaleidescape did 
not violate its contract with the DVD Copy Control 
Association (DVD CCA) by distributing a device that rips 
and plays DVDs. But now the DRM licensing authority, which 
is mostly controlled by movie studios, is planning to 
change the contract and more clearly forbid DVD ripping.

Make no mistake: the VCR, TiVo, iPod, and myriad other 
technologies could have faced Kaleidescape's fate if the 
entertainment industry had been able to infect TV and music 
with DRM sooner. This is also the fate that awaits all 
future television technologies if DRM is baked in thanks to 
the broadcast flag and CableCARD.

For EFF's Broadcast Flag page:

For EFF's page on DRM for Digital Cable and Satellite

Read the complete post:

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* Sony Disconnects

In May 2004, Sony opened up its own store for selling 
digital music: Sony Connect. From the start, the service 
was plagued with self-inflicted woes. Thanks to Sony's use 
of DRM and a proprietary music format (ATRAC), music bought 
through Sony Connect could only be played on Sony's 
expensive digital music players. And those devices came 
loaded with software that was awkward and hard to use.

Not surprisingly, Sony is rumored to be pulling the plug on 
Sony Disconnect, or at least downsizing it. In any case, 
the problems of Sony's premiere music service make a point 
that deserves emphasis: customers don't like having their 
options limited and being herded into using poorly designed 

Of course, these dangers exist whenever you buy DRMed music 
from any vendor. You're locked into the limited array of 
players that the DRM is compatible with, and, if that DRM 
some day is entirely unsupported, you're out of luck.

Read EFF Activist Hugh D'Andrade's complete analysis and 
related links:

For EFF's "The Customer Is Always Wrong: A User's Guide to 
DRM in Online Music":

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* Viacom Nets, Releases Another Fair Use Dolphin

When a company like Viacom sends more than 160,000 DMCA 
takedown notices to YouTube, there is a risk that some fair 
use "dolphins" will get caught along with the infringing 
"tuna." Well, another "dolphin" got caught up in the DMCA 
takedown driftnet. 

Last week, Paramount Pictures (a unit of Viacom) apparently 
sent a DMCA takedown notice to YouTube, resulting in the 
removal of the hugely popular video "10 Things I Hate About 
Commandments," an example of the new genre of movie trailer 
mashups that has blossomed on YouTube.

So after the creators contacted EFF, we urged them to test 
out the "dolphin hotline," which Viacom created after 
getting into hot water for mistakenly taking down's "Stop the Falsiness" video. 

Find out what happened in EFF Staff Attorney Fred von 
Lohmann's complete post:

Watch the video "10 Things I Hate About Commandments" on 

Read more about EFF's lawsuit against Viacom:

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* miniLinks
The week's noteworthy news, compressed.

~ Former FISA Judge Criticizes Wiretap Program
Judge Lamberth says "you can't trust the executive."

~ Video of Judge Lamberth's speech:

~ Justice Dept. vs. States on Phone Privacy
Can the feds stop states from investigating whether telcos 
helped the NSA spy on Americans?,1,7897952.story?coll=la-news-a_section

~ Google Transparency
Google's new Public Policy Blog discusses... Google's 
Public Policy!

~ Google Asks Government to Fight Censorship
Are free speech restrictions also trade barriers?

~ DRM-Free Sales Boom
EMI reports that sales of some albums are up as much as 
350% now that MP3 tracks without DRM are available.

~ DRM Rises from the Dead
The Blu-ray Disc Association is promoting the use of DRM on 

~ Googling for Downloads
Music downloaders are circumventing P2P restrictions at 
universities by using Google instead.

~ iPhone Lowdown
Preventng iPhone owners from installing software may hurt 
their privacy.

~ My Career as a TV Freeloader
A Slate article describes how to tap into the neighbor's 
on-demand television.

~ Censorship and the DMCA
How console manufacturers can shut down games they don't 

~ An Obituary for Weedshare
A radical way to buy and share music that never took off.

~ Vonage and Spam
Vonage is harvesting names from their refer-a-friend 
program to send spam promotions.

~ CAN-SPAM With Nifty Web App
Mailinator enables you to retrieve email without providing 
any personal data.

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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)	

Julie Lindner, Education Outreach Coordinator	

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