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EFFector - Volume 20, Issue 32 - Appeals Court Battle Over NSA Surveillance on August 15


EFFector - Volume 20, Issue 32 - Appeals Court Battle Over NSA Surveillance on August 15

EFFector Vol. 20, No. 32  August 13, 2007

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 436th Issue of EFFector:

  • Appeals Court Battle Over NSA Surveillance on August 15
  • How Ma Bell Fought for Your Privacy - 80 Years Ago
  • First Sale: Why It Matters; Why We're Fighting for It
  • Let 1,000 YouTube Presidential Debate Remixes Bloom!
  • miniLinks (12): A Gateway for Hackers
  • Administrivia

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

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* Appeals Court Battle Over NSA Surveillance on August 15

Government Aims to Block Accountability for Illegal Spying 
on Americans

San Francisco - In the wake of Congress approving a 
dramatic expansion of U.S. warrantless wiretapping powers, 
the 9th U.S. Circuit Court of Appeals will hear arguments 
on the future of two critical lawsuits over illegal 
surveillance of Americans. The hearing is set for August 15 
at 2 p.m. in San Francisco.

The government is fighting to get the cases thrown out of 
court, contending that the litigation jeopardizes state 
secrets. The Electronic Frontier Foundation (EFF) is 
representing the plaintiffs in Hepting v. AT&T, which 
accuses the telecom giant of collaborating with the 
National Security Agency (NSA) in illegal electronic 
surveillance of millions of AT&T's customers. The court 
will also hear arguments on Al-Haramain Islamic Foundation 
v. Bush, a case alleging that the government illegally 
wiretapped calls between the charity and its lawyers.

"At issue here is whether the courts have any meaningful 
role to play in protecting Americans' privacy from 
Executive branch abuses of its surveillance powers," said 
EFF Legal Director Cindy Cohn. "If the claim of 'state 
secrets' is allowed to shut down litigation, then the 
courts will never be able to exercise their Constitutional 
duty to hold the White House accountable for illegal and 
even unconstitutional abuses of power."

The court has scheduled one hour of arguments for Hepting 
v. AT&T and 40 minutes for Al-Haramain Islamic Foundation 
v. Bush. Because of the large number of attendees expected 
at Wednesday's hearing, the court will provide an overflow 
room with audio and video of the proceedings for spectators 
who cannot get a seat in the courtroom itself.

Hepting v. AT&T
Al-Haramain Islamic Foundation v. Bush

2 p.m.
Wednesday, August 15

9th U.S. Circuit Court of Appeals
Courtroom 1, 3rd Floor
95 Seventh Street
San Francisco, CA 94103

For more on EFF's case against AT&T:

See EFF's page on the NSA's Warrantless Domestic 

For this release:

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* How Ma Bell Fought for Your Privacy - 80 Years Ago

Once upon a time, nearly 80 years ago, AT&T fought at the 
Supreme Court to stop the government's warrantless 
surveillance of Americans' private communications.

How times have changed.

Since its participation in the president's illegal 
wiretapping program came to light in late 2005, AT&T has 
desperately tried to avoid accountability and has sided 
with the government's claims that no one should be able to 
sue to stop the dragnet surveillance of millions of 
ordinary Americans.

But when the Supreme Court first confronted warrantless 
wiretapping in Olmstead v. USA, AT&T co-authored an amicus 
brief that outspokenly defended its customers' privacy:

"The telephone companies deplore the use of their 
facilities in furtherance of any criminal or wrongful 
enterprise. But it was not solicitude for lawbreakers that 
caused the people of the United States to ordain the Fourth 
and Fifth Amendments as part of the Constitution.... [I]t 
is better that a few criminals escape than that the 
privacies of life of all the people be exposed to the 
agents of the government, who will act at their own 
discretion, the honest and the dishonest, unauthorized and 
unrestrained by courts."

Even in the 1920s, AT&T clearly recognized that 
surveillance of the modern telecommunications system could 
be far more invasive than the Colonial era privacy 
violations that inspired the Bill of Rights.

"The telephone has become part and parcel of the social and 
business intercourse of the people of the United States, 
and this telephone system offers a means of espionage to 
which general warrants and writs of assistance were the 
puniest instruments of tyranny and oppression."

"Writs of assistance" were used by Kings George II and III 
to carry out wide-ranging searches of anyone, anywhere, and 
anytime regardless of whether they were suspected of a 
crime. These "hated writs" spurred colonists toward 
revolution and directly motivated James Madison's crafting 
of the Fourth Amendment.

Today, the president has essentially updated this page from 
the kings' playbook. EFF's lawsuit against AT&T presents 
uncontested evidence that, since at least 2001, the telco 
giant has given the National Security Agency unfettered 
backdoor access to its customers' Internet and phone 
communications, as well as realtime access to calling 

If AT&T in 1928 thought that wiretapping made the "hated 
writs" look puny, how can it now cooperate with the 
president's massive and illegal spying program?

Both federal statutes and the Constitution plainly forbid 
the president's abuse of power as well as AT&T's 
participation, and EFF will continue to fight hard in court 
to restore your rights. This Wednesday, the Ninth Circuit 
Court of Appeals will hear oral arguments in our case. As 
AT&T's brief from 80 years ago makes clear, the most basic 
essence of our Constitution is at stake.

AT&T isn't the only one in need of a history lesson; 
Congress needs one, too, and it's up to each and every one 
of us to set our representatives straight. By passing 
horrible legislation last week permitting the warrantless 
surveillance of Americans' international communications, 
Congress failed to do its job and check the Executive's 
abuse of power. Now we must do our democratic duty and help 
restore our Constitutional rights. Take action and write to 
Congress now.

Read AT&T's amicus brief from Olmstead v. USA:

For this post:

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* First Sale: Why It Matters; Why We're Fighting for It

The "first sale" doctrine expresses one of the most 
important limitations on the reach of copyright law. The 
idea, set out in Section 109 of the Copyright Act, is 
simple: once you've acquired a lawfully-made CD or book or 
DVD, you can lend, sell, or give it away without having to 
get permission from the copyright owner. In simpler terms, 
"you bought it, you own it" (and because first sale also 
applies to gifts, "they gave it to you, you own it" is also 

Seems obvious, right? After all, without the "first sale" 
doctrine, libraries would be illegal, as would used 
bookstores, used record stores, and video rental shops (and 
their modern variants, like LaLa and other CD-swapping 

But that hasn't stopped Universal Music Group. In May, UMG 
sued Roast Beast Music for auctioning "promo CDs" on eBay, 
CDs which Roast Beast Music had itself purchased from used 
record stores around Los Angeles. Apparently, UMG has been 
harassing a number of eBay sellers, sending bogus DMCA 
takedown notices to eBay, getting auctions suspended and 
accounts terminated.

Last week, EFF filed papers in court on behalf of Roast 
Beast Music answering UMG's allegations and counter-suing 
them for the bogus DMCA takedowns. The critical question is 
whether UMG can trump first sale by printing "promotional 
use only, not for resale" notices on the CDs that they 
routinely give away to radio stations, journalists, and 
tastemakers of all kinds.

If UMG is right, then copyright owners of all kinds can 
strip away our first sale rights by putting these kinds of 
"label licenses" on their wares. Next thing you know, CDs, 
books, DVDs, and video games could be festooned with 
"notices" that erode a customer's first sale, fair use, and 
other rights.

Read Section 109 of the U.S. Copyright Act:

See EFF's case page on UMG v. Augusto:

For the entire post and related links:

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* Let 1,000 YouTube Presidential Debate Remixes Bloom!

It's amazing how fast things can change. In April, a 
transpartisan coalition spearheaded by Stanford Law 
Professor and EFF Board Member Lawrence Lessig called for 
the release of presidential debate footage into the public 
domain. The coalition of Internet luminaries, free speech 
advocates, conservative and progressive activists and 
others asked the broadcasters behind the debates to make 
all footage available to the public for remixing, blogging, 
commentary, analysis, and parody.

Starting in May, three out of the five major networks 
granted the public access to their debate footage and 
acknowledged the ever-growing number of citizens that are 
already making use of new forums like YouTube to engage in 
political debate.

Of course, even without the networks' permission, people 
are free to engage in non-infringing re-uses -- commentary, 
news reporting, and parody are classic examples of fair 
use. But uncertainty in the law and threat of litigation 
can nevertheless have a significant chilling effect on free 

Find out which major networks have granted access in our 
complete post:

Read Lawrence Lessig's April blog post, " A Call on the RNC 
& DNC to Eliminate Unnecessary Regulation of Political 

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* miniLinks
The week's noteworthy news, compressed.

~ A Gateway for Hackers
Susan Landau says wiretapping may create a security 
nightmare by tempting hackers.

~ China Enacting a High-Tech Plan to Track People
The Chinese government plans to use new ID cards to track 
all 12.4 million people in Shenzhen.

~ Feds Consider Lowering Passenger Data Requirements
Under a new plan, airlines would provide less data on 
travelers to the TSA.

~ Delete This!
Companies may begin retaining more data in response to the 
recent TorrentSpy case.

~ Meltdown at the E-voting Machine
The story behind why California's secretary of state 
decided to decertify E-voting machines.

~ Voice ID Snares Drug Kingpin in Brazil
Police identified Ramirez Abadia using voice recognition 
software, with help from the U.S. DEA.

~ Perfect 10 Returns for More Abuse
Having lost once, Perfect 10 returns to claim copyright 
infringement from search engine thumbnails.

~ Microsoft Games Open for Non-Commercial Re-Use
You can create derivative works -- but don't even think 
about reverse engineering!

~ Mod Chip Raid Fallout: A Roundup
Should cops target small time pirates or focus on the big 

~ DRM-free Tunes to be Watermarked
Universal's plan to sell music without DRM doesn't mean it 
won't track user data.

~ "Cyber-Punk" No More
The man who supposedly coined the term "cyberspace" says 
the "cyber" prefix is fading from popular usage.

~ Habeas Corpus for Avatars!
Will avatars in Second Life end up having more rights than 
their human creators?

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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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