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EFFector - Volume 20, Issue 27 - FBI Records Show Gonzales Knew About Years of Chronic NSL Problems


EFFector - Volume 20, Issue 27 - FBI Records Show Gonzales Knew About Years of Chronic NSL Problems

EFFector Vol. 20, No. 27  July 11, 2007

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 431st Issue of EFFector:

  • FBI Records Show Gonzales Knew About Years of Chronic NSL Problems
  • An Independence Day Resolution: Reform FOIA!
  • RIAA Should Pay for Single Mom's Two-Year Ordeal
  • Divided Appeals Court Rules Against ACLU on NSA Wiretapping
  • YouTube Embedding and Copyright
  • Visit EFF at OSCON!
  • miniLinks (10): Why the iPhone Isn't Really Revolutionary
  • 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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* FBI Records Show Gonzales Knew About Years of Chronic NSL 

EFF Lawsuit Uncovers History of Surveillance Mistakes

Washington, D.C. - Documents obtained by the Electronic 
Frontier Foundation (EFF) show years of chronic problems 
with the Federal Bureau of Investigation's use of National 
Security Letters (NSLs) to collect Americans' personal 
information and that Attorney General Alberto Gonzales has 
long been aware of these problems.

The documents were disclosed after EFF sued the government 
under the Freedom of Information Act (FOIA) earlier this 
year for records related to a scathing Justice Department 
critique of FBI NSL activity. The records detail more than 
40 instances of improper, unauthorized collection of 
information about individuals, including unlawful access to 
phone records and email. The records show that Gonzales 
himself was sent several of these problem reports, 
including one less than a week before he told a 
congressional committee that no civil liberties abuses have 
resulted from the USA PATRIOT Act. He also voiced surprise 
when the Justice Department report on NSL misuse was made 
public earlier this year.

"These chronic privacy problems have long been known within 
the Justice Department but still were kept secret from 
those who really needed to know -- members of the American 
public, including those who were surveilled," said EFF 
Staff Attorney Marcia Hofmann. "The FBI can't be trusted to 
police its own agents. It's time for Congress to provide 
oversight to protect American citizens."

The FBI's use of NSLs was expanded under the USA PATRIOT 
Act in 2001, allowing federal agents to gather private 
records about anyone's domestic phone calls, emails, and 
financial transactions without any court approval -- as 
long as an FBI agent claims that the information could be 
related to a terrorism or espionage investigation. EFF 
submitted a FOIA request about the reported misuse of NSLs 
in March, and when no documents were forthcoming, EFF sued 
the FBI for their immediate release. Last month, a judge 
held that the FBI was required to release records related 
to the inspector general's report beginning on July 5, with 
more documents to be disclosed every 30 days. In all, 1138 
pages of NSL records were released to EFF late last week in 
the first batch of documents complying with the court's 

"This is by no means the whole story on NSL abuse," said 
EFF Senior Counsel David Sobel. "We're looking forward to 
receiving the rest of the documents. Americans deserve the 
whole story on the FBI's deeply flawed program to issue 

For the complete FBI documents:

For initial analysis of the documents:

For this release:

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* An Independence Day Resolution: Reform FOIA!

On July 4, 1966, President Lyndon Johnson signed the FOIA 
into law. FOIA gave weight to a principle that is 
fundamental to any democracy: the right of the people to 
know what the government is doing. Forty-one years later, 
FOIA remains an essential tool used by the public, public 
advocacy groups (including EFF), and news organizations to 
uncover information that would otherwise remain hidden from 
public view.

But a recent report from the George Washington University's 
National Security Archive and the Knight Foundation shows 
that FOIA is far from a perfect tool of transparency in 
government. The study found that requests for information 
often languish in bureaucratic limbo for years -- the 
oldest dates back to 1987! The National Security Archive 
actually had to use FOIA to find out how many FOIA requests 
were still pending.

Luckily, a new bill to reform FOIA is working its way 
through Congress, supported by a broad coalition of 
organizations that spans the political spectrum. The OPEN 
Government Act (S. 849) brings much needed reform to FOIA 
and puts in place incentives for federal agencies to 
process FOIA requests in a timely fashion. The bill would 
create a tracking system for FOIA requests so that they 
don't get lost in the bowels of federal agencies, as well 
as allowing requesters who prevail in FOIA litigation to 
recover reasonable attorney fees.

Meanwhile, EFF's FOIA lawsuits are making steady strides. 
Along with uncovering information about National Security 
Letters, we've filed suit seeking orders, rules and 
guidelines issued by the Foreign Intelligence Surveillance 
Court about the Administration's warrantless surveillance 
program. There will be a hearing in the case on July 26 in 
Washington, DC.

Take action to support the OPEN Government Act:

For this post and related links:

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* RIAA Should Pay for Single Mom's Two-Year Ordeal

Innocent Target of File-Sharing Lawsuit Racked Up Legal 
Fees Fighting Baseless Charges

Seattle - The Recording Industry Association of America 
(RIAA) should pay for a single mom's two-year legal ordeal 
fighting a baseless file-sharing lawsuit, the Electronic 
Frontier Foundation (EFF) told Washington state court in an 
amicus brief filed last week.

The nightmare began for Dawnell Leadbetter in January of 
2005, when she received a letter from the RIAA that accused 
her of illegally downloading copyrighted music and claiming 
she owed hundreds of thousands of dollars. Leadbetter 
contacted the RIAA to deny the baseless claims, and she 
refused to pay any settlement monies. In response, the RIAA 
sued Leadbetter, and Leadbetter hired an attorney to fight 
the charges. After months of legal wrangling, the RIAA 
finally dropped the case in December of 2006. But in the 
meantime, Leadbetter had incurred significant attorney's 

"Ms. Leadbetter isn't the only innocent Internet user that 
has been ensnared by the RIAA's litigation dragnet. But she 
is one of the few who have fought back, resisting RIAA 
pressure to pay settlement monies for something she did not 
do," said EFF Staff Attorney Jason Schultz. "The RIAA's 
settlement offers are usually less that what it would cost 
to defend yourself, so it's a big commitment to hire a 
lawyer to clear your name. Reimbursing Ms. Leadbetter's 
attorney's fees could encourage other innocent lawsuit 
targets to stand up for themselves."

Since 2003, the RIAA has sued over 20,000 people for 
allegedly sharing music over the Internet. The industry 
uses questionable investigative methods tactics to find its 
targets, and then it often employs erroneous legal theories 
in its quest for settlement monies. In Ms. Leadbetter's 
case, the suit against her included accusations of 
"secondary liability" -- putting her on the hook for 
anything that happened on her Internet account, whether she 
knew about it or not.

"The RIAA knows that this legal theory is wrong. But if 
innocent victims are too scared to hire an attorney and 
fight back, the public could suffer under the misconception 
that these bogus theories are legitimate," Schultz said. 
"Awarding attorney's fees to Ms. Leadbetter helps protect 
everyone's rights under copyright law."

The amicus brief was filed in U.S. District Court in 
Seattle in conjunction with attorney Derek Newman of Newman 
& Newman LLP.

For the full amicus brief:

For more on the RIAA lawsuit campaign: 

For this release:

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* Divided Appeals Court Rules Against ACLU on NSA 

A federal appeals court handed down a defeat for your civil 
liberties last week, ordering the dismissal of the ACLU's 
case challenging the NSA's warrantless wiretapping program. 
In a 2-1 ruling, the 6th U.S. Circuit Court of Appeals 
found that the plaintiffs, attorneys and journalists who 
had stopped communicating with their foreign clients and 
sources for fear of illegal wiretapping did not have legal 
standing to sue. The case was based on the President's 
admissions about the warrantless wiretapping.

Judge Ronald Gilman dissented, finding that the warrantless 
surveillance program violated the law and rejecting the 
President's assertion of inherent authority to break laws 
in the name of national security.

The court's decision threw out last year's district court 
ruling, which found the NSA's Terrorist Surveillance 
Program "violates the Separation of Powers doctrine, the 
Administrative Procedures Act, the First and Fourth 
Amendments to the United States Constitution, the Foreign 
Intelligence Surveillance Act and Title III."

EFF has sued AT&T on behalf of its customers for the 
telecommunications giant's role in the NSA's illegal 
spying, which we allege goes beyond what the President has 
directly admitted and intercepts the phone and Internet 
communications of millions of ordinary Americans. Last 
summer, Judge Walker rejected the government's motion to 
dismiss EFF's case, along with AT&T's motion to dismiss, 
and allowed the case to go forward. That ruling is on 
appeal and will be heard by the 9th Circuit on August 15, 
2007, in San Francisco.

For this post and related links:

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* YouTube Embedding and Copyright

There seems to be a considerable amount of interest in and 
confusion about the copyright law consequences of embedding 
a YouTube video in your blog. In fact, the Blog Herald 
recently ran a story suggesting that bloggers could be on 
the hook for copyright infringement if they embed a video 
that turns out to be infringing.

Well, the news really isn't that dire. In fact, we believe 
that bloggers are generally pretty safe on this score, at 
least until someone notifies them that an embedded video is 

First, it's important to understand what an embedded 
YouTube video is -- it's a link. No copy of the YouTube 
video is being stored on your server (only the HTML code 
for the embed). The video stays on, and is streamed from, 
YouTube's servers.

That makes the embedded YouTube video essentially 
indistinguishable from the in-line image links that are 
used all over the Web, including in Google's Image Search. 
In the recent Perfect 10 v. Amazon ruling, the Ninth 
Circuit made it very clear that where in-line links are 
concerned, there is absolutely no direct copyright 
infringement liability. So, for purposes of direct 
infringement, the answer to one question will generally 
resolve the issue: where is the copy hosted?

That leaves contributory infringement. If you link to a 
video that you know is infringing, or that any reasonable 
person would have known is infringing, and if your link 
materially contributes to the infringement, then you could 
be liable for contributory infringement -- a kind of 
"aiding and abetting" liability.

The contributory infringement test should leave plenty of 
breathing room for most bloggers. Two rules of thumb should 
avoid most issues -- (1) don't embed videos that are 
obviously infringing, and (2) consider removing embedded 
videos once you've been notified by a copyright owner that 
they are infringing.

If you want even more protection, you can register yourself 
as the "Copyright Agent" for your blog (requires a form and 
$80 payment to the U.S. Copyright Office), familiarize 
yourself with the requirements of the DMCA's online service 
provider "safe harbors" (the chief one for most bloggers 
will be notice-and-takedown), and take advantage of the 
same protections that shield Yahoo! and Google when they 
link to sites that may include infringing materials.

In short, embedding YouTube videos isn't that scary from a 
copyright POV, at least until a copyright owner takes the 
trouble to notify you.

For this post and related links:

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* Visit EFF at OSCON!

EFF will be at the O'Reilly Open Source Convention (OSCON) 
in Portland, Oregon on July 25-26. Come visit us at booth 
#121, and grab some schwag:

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* miniLinks
The week's noteworthy news, compressed.

~ Why the iPhone Isn't Really Revolutionary
Tim Wu points out that beneath the iPhone's snazzy design 
lurks a standard business model.

~ The "iPhone Killer" Arrives
An open source, touch-screen, Linux-based phone that can be 
used with any GSM carrier.

~ Top Secret: We're Wiretapping You
The FBI accidentally gave a DC attorney proof that he was 
being wiretapped.

~ Judge Dismisses New York Times Lawsuit
A FOIA request on warrantless wiretapping was thrown out by 
a federal judge, citing executive privilege.

~ Net Growth Prompts Privacy Update
The leading industrial nations adopt new guidelines on 

~ EU, U.S. to Share Passenger Data
A deal between the EU and the U.S. allows the storage of 
traveler data for up to 15 years.

~ German Parliament Passes New Copyright Act
Reforms allow users to make personal copies, but not to 
"break" DRM.

~ Court Holds Belgian ISP Responsible for File Sharing
ISPs in Belgium are ordered to police their networks for 

~ Digital Music Sales Flex Muscles
Does good news for digital sales mean bad news for the 
traditional album?

~ Fake Steve Jobs: How I Put Labels on a Leash
Tells the story of how the major labels handed Apple an 80% 
share of the digital music 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, Activism Coordinator	

Membership & donation queries:

General EFF, legal, policy, or online resources queries:

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Press releases and EFF announcements & articles may be 
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