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EFFector - Volume 20, Issue 39 - Telecoms Want Amnesty for Lawbreaking: Roundup of Internet Coverage

EFFector Vol. 20, No. 39  October 3, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 443rd Issue of EFFector:
  • Telecoms Want Amnesty for Lawbreaking: Roundup of Internet Coverage
  • Write a Letter to the Editor to Stop Telco Amnesty!
  • Justice Department Withholds Records of Stealth Campaign to Block Surveillance Suits
  • Goldsmith Testimony on the Secret Warrantless Surveillance Program
  • Parts of FISA Held Unconstitutional
  • "Secure Flight" Returns, Lacking Privacy Protections
  • Judge Voids Election Because of E-Voting Snafus
  • ThePudding.com Turns Your VoIP Calls Into Ad-Serving Keywords
  • Court Defends honest Discussion of Proposed Trademark in Freecycle v. Oey
  • Google Associate General Counsel to Speak at EFF October 10 Bootcamp and Google to Offer Scholarships
  • Basics on EFF's Web 2.0 Compliance Bootcamp
  • Vote for EFF on the Working Assets 2007 Donations Ballot!
  • EFF Seeks Intellectual Property Staff Attorney
  • miniLinks (11): Dems Ask Telcos Spying Questions
  • 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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* Telecoms Want Amnesty for Lawbreaking

A Roundup of Coverage from Around the Internet

Right now, high-powered lobbyists for the giant telecom
companies are descending on Capitol Hill to lobby Congress.
Their aim: to secure amnesty for their clients, insulating
them from liability for breaking the law in connection with
the NSA's illegal warrantless wiretapping program. Clearly,
EFF's case against AT&T is in their crosshairs.

Considering the urgency of the issue, mainstream media
coverage has been surprisingly spotty and incomplete. But
there are some excellent updates and analysis from bloggers
and news sources that have been doggedly covering the facts
as they come in. Here are a few of our picks:

For Aziz Huq's analysis in the Nation, "Protecting the
Wiretappers":
http://www.thenation.com/doc/20071015/huq

Read Glenn Greenwald's commentary at Salon, "Former Clinton
officials lobby for amnesty for FISA lawbreaking":
http://www.salon.com/opinion/greenwald/2007/09/22/telecom_immunity/index.html

See Art Levine's Huffington Post report, "10 Days Left to
Stop the Dems from Caving on FISA":
http://www.huffingtonpost.com/art-levine/10-days-left-to-stop-the-_b_65884.html

For Matt Stoller's Open Left commentary, "New Train Wreck
Coming on FISA":
http://openleft.com/showDiary.do?diaryId=1566

Check out the ACLU's FISA fact sheet:
http://www.aclu.org/safefree/general/31879prs20070920.html

For this post and related links:
http://www.eff.org/deeplinks/archives/005465.php

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* Write a Letter to the Editor to Stop Telco Amnesty!

Your emails and phone calls have made an impact this week,
as EFF and a coalition of civil liberties organizations
succeeded in delaying key congressional committee meetings
about revisions to the unpopular Protect America Act passed
in August.

We may have dodged a bullet, but only for the moment.
Despite the delay, key Congressional members are still
gambling with your constitutional rights, bargaining in
secretive deals with the Bush administration and high-
powered telecom lobbyists.

These efforts are a direct attempt to derail EFF's case
against AT&T -- the phone companies want Congress to bless
them with amnesty for violating their customers' privacy
when they allowed the National Security Agency (NSA) to spy
on their customers' phone calls and Internet
communications.

We need to get the word out, and we need your help. Write
to your local newspaper, blog or community website, and
fight the latest round of shameful behavior by Congress and
the telcos by taking the news to the public. Here are some
important points to make:

* Congress shouldn't let the phone companies off the hook.
When individuals break the law, they must stand up to their
mistakes in court. Why should the telcos be able to buy
their way out of the American system of justice?

* Congress should stop warrantless surveillance of ordinary
Americans.
Your senators and district representative must stop the
NSA's domestic spying, repeal the "Protect America Act,"
and ensure that whenever a U.S. person is surveilled, the
government must first get a warrant.

* Congress shouldn't legislate in the dark.
Your senators and district representative should oppose any
expansion of spying authority until a full, thorough, and
public investigation is complete.  August 20, 2007 was the
deadline for the Bush administration to explain the
warrantless wiretapping program to the Senate Judiciary
Committee. More than a month later, the Administration is
still stonewalling, yet the Senate is currently rushing to
produce new spying legislation.

For a list of your local media:
http://www.congress.org/congressorg/dbq/media/

When submitting a letter to the editor, be sure to include
your name, address and phone number so the newspaper, blog
or community website can contact you for verification, and
do your best to follow any guidelines on word count while
still making a thorough and clear argument.

Until the end of October, you can opt to send your
completed draft to letterhelp@eff.org. We'll do our best
to proofread the letter and make sure that you've got the
main points. Naturally, this is completely optional -- feel
free to send your letter directly to your local newspaper,
blog or community website.

Consider looking at the following resources for facts and
inspiration:

EFF's "Telecoms Want Amnesty for Lawbreaking Roundup"
Deeplink (above):
http://www.eff.org/deeplinks/archives/005465.php

Newsweek's article on secretive telco lobbying:
http://www.msnbc.msn.com/id/20884696/site/newsweek/

Read more on EFF's case against AT&T:
http://www.eff.org/legal/cases/att

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* Justice Department Withholds Records of Stealth Campaign
to Block Surveillance Suits

EFF Lawsuit Demands Information About Telecom Industry
Lobbying

Washington, D.C. - The Electronic Frontier Foundation (EFF)
filed suit against the Department of Justice (DOJ)
Thursday, demanding any records of a telecom industry
lobbying campaign to block lawsuits over their compliance
with illegal electronic surveillance. EFF's lawsuit comes
as Congress debates letting telecommunications companies
off scot-free as part of the hotly disputed "modernization"
of the Foreign Intelligence Surveillance Act (FISA).

EFF represents the plaintiffs in Hepting v. AT&T, a class-
action lawsuit brought by AT&T customers accusing the
telecommunications company of violating their rights by
illegally assisting the National Security Agency in
domestic surveillance. The Hepting case is just one of many
suits aimed at holding telecoms responsible for knowingly
violating federal privacy laws with warrantless wiretapping
and the illegal transfer of vast amounts of personal data
to the government.

The government has intervened and moved for dismissal of
many of these lawsuits. The DOJ has also pushed for changes
to federal law that would ensure the telecoms are not held
responsible for their role in the warrantless surveillance.
Meanwhile, the DOJ has not responded to EFF's Freedom of
Information Act (FOIA) requests to disclose records
concerning any lobbying activities regarding potential
immunity for the telecom industry.

"The White House is publicly calling for immunity for the
telecoms, while a recent Newsweek article detailed a
'secretive lobbying campaign' to block the lawsuits," said
EFF Staff Attorney Marcia Hofmann. "If there are backroom
deals going on at the Department of Justice, then Americans
need to know about them now, before Congress passes any law
that gets the telecom companies off the hook."

The Department of Justice has already agreed that the
records should be disclosed quickly because of the urgent
need to inform the public about these issues. However,
despite this recognition, DOJ has neither processed the
FOIA requests nor told EFF when the documents might be
released. EFF's suit asks for the immediate disclosure of
the telecom lobbying records, including any documents
concerning briefings, discussions, or other contacts DOJ
officials have had with representatives of
telecommunications companies. The suit also asks for
records of contact between the DOJ and members of Congress
about telecom immunity.

"Our lawsuit and others allege serious privacy law
violations that impact millions of ordinary Americans,"
said EFF Senior Staff Attorney Kurt Opsahl. "If the
telecoms are seeking amnesty for their illegal activity,
Americans deserve to know why and how lobbyists pressured
the DOJ."

For the full complaint:
http://www.eff.org/flag/fisa_lobbying/092707_complaint.pdf

For more on EFF's FOIA work:
http://www.eff.org/flag

For this release:
http://www.eff.org/news/archives/2007_09.php#005463

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* Goldsmith Testimony on the Secret Warrantless
Surveillance Program

The Associated Press, the Washington Post and Wired's
Threat Level are reporting on testimony by Jack Goldsmith,
former head of the Justice Department's Office of Legal
Counsel. Goldsmith testified that there were certain
aspects of the warrantless surveillance program "that I
could not find the legal support for," describing the basis
as "a legal mess ... it was the biggest mess I encountered
there."

Read Pamela Hess' AP report, "Legality of Eavesdropping
Questioned:
http://ap.google.com/article/ALeqM5hXoHcrFTHYJIBdn8qMLn4oWNEPuAD8S16D2O0

See Dan Eggan's Washington Post article, "Justice Official:
Details of Surveillance Program Tightly Guarded":
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/02/AR2007100201083.html

For Ryan Singel's Wired Threat Level post, "Former DOJ
Lawyer Couldn't Find Way to Legalize Bush Spying Program":
http://blog.wired.com/27bstroke6/2007/10/former-doj-lawy.html

For this post:
http://www.eff.org/deeplinks/archives/005466.php

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* Parts of FISA Held Unconstitutional

Last Wednesday, Judge Ann Aiken of the Oregon Federal
District Court ruled that two provisions of the Foreign
Intelligence Surveillance Act (FISA), "50 U.S.C. ยงยง 1804
and 1823, as amended by the USA PATRIOT Act, are
unconstitutional because they violate the Fourth Amendment
of the United States Constitution."

This case arose over warrantless surveillance of an
innocent Oregon attorney who was falsely suspected of
involvement with the Madrid train bombing based on mistaken
fingerprint identification. The critical legal issue was
that in the Patriot Act, Congress amended FISA to change
the language from requiring "the purpose" of the search or
surveillance be to obtain foreign intelligence information
to only "a significant purpose" of the search or
surveillance. As EFF has previously explained in a case
before the Foreign Intelligence Surveillance Court of
Review, a "long line of court of appeals decisions, before
and after FISA, has held that surveillance may be conducted
without a traditional warrant and probable cause only when
foreign intelligence collection is the 'primary purpose' of
the surveillance," not merely a "significant purpose."

Read the opinion:
http://www.ord.uscourts.gov/rulings/04-cv-1427Opinion.pdf

For this post:
http://www.eff.org/deeplinks/archives/005461.php

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* "Secure Flight" Returns, Lacking Privacy Protections

Last week, EFF filed comments on two of the privacy-related
documents released to the public by the Department of
Homeland Security (DHS). The DHS documents outlined the
Transportation Security Administration (TSA)'s intent to
exempt key data collection from the protections of the
Privacy Act in its Secure Flight program.

Secure Flight is the system that the TSA plans to roll out
in 2008 for all air flights. It will allow the DHS to
collect the passenger records you are obliged to hand over
to airlines when you travel and then connect that personal
data with other government databases within the DHS and
elsewhere.

Secure Flight has had a long and ignoble history, with
frequent protests from both Congress and privacy groups,
leading to its postponement in 2006.

In these new documents, the DHS still seeks to exempt
Secure Flight from the protections of US privacy law.
Individuals will be prevented from discovering what data is
kept on them, will not be able to correct that data, and
will not be able to go to a court to force data to be
corrected if the DHS refuses.

Read EFF's comments:
http://eff.org/Privacy/travel/092407_secure_flight_comments.pdf

Read the highlights from Secretary of U.S. Department of
Homeland Security Michael Chertoff's keynote address at
Terra Incognita: the annual conference of Data Protection
and Privacy Commissioners, in Montreal:
http://www.eff.org/deeplinks/archives/005460.php

For background, see EFF's Travel Screening page:
http://www.eff.org/Privacy/travel/

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* Judge Voids Election Because of E-Voting Snafus

Good news from California's Alameda County -- a judge has
voided election results after the county botched its
response to a contested race conducted on Diebold
electronic voting machines. The judge ordered that the
disputed Measure R -- an initiative addressing the
operation of medical marijuana dispensaries -- go back on
next year's ballot.

Measure R lost by fewer than 200 votes in the 2004
election, and Americans for Safe Access and voters in the
city of Berkeley brought a legal challenge seeking a
recount. But while the lawsuit was ongoing, election
officials returned the voting machines to supplier Diebold
Election Systems, and 96% of the detailed audit information
from the election was destroyed. EFF helped analyze the
remaining data, but, as the judge recognized, it was
impossible to tell if the tallies reported on election
night were correct.

The news is good in California, but serious reforms are
needed nationwide, including a voter-verified paper trail
and mandatory random audits. Contact your representative
today and voice your support for H.R. 811, the Voter
Confidence and Increased Accessibility Act of 2007:
http://action.eff.org/site/Advocacy?id=109

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

For the complete post and related links:
http://www.eff.org/deeplinks/archives/005464.php

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* ThePudding.com Turns Your VoIP Calls Into Ad-Serving
keywords

The Associated Press reports on the beta website
ThePudding.com, which is offering users "free" voice over
IP (VoIP) calls, with an invasive catch -- it uses voice-
recognition software to serve you ads based on the
conversation you're having.

Perhaps the most chilling implication of this "service" is
its potential impact on your constitutional right to
privacy in your phone calls. Fourth Amendment protections
against government eavesdropping rely on your having a
"reasonable expectation of privacy" in your calls,
something you'll arguably be trading away by using
ThePudding.com's VoIP service. The government can and
likely will argue -- as it has argued when it comes to your
Gmail in the case of U.S. v. Warshak -- that allowing a
company to scan your communications for ad-serving purposes
eliminates any Fourth Amendment privacy protections in
those communications. Far from being "free," you may be
paying for ThePudding.com's service with your
constitutional rights.

For the AP report, "New Service Eavesdrops on Internet
Calls":
http://biz.yahoo.com/ap/070924/ads_that_listen.html

Read EFF Activist Richard Esguerra's complete post:
http://www.eff.org/deeplinks/archives/005458.php

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* Court Defends Honest Discussion of Proposed Trademark in
Freecycle v. Oey

EFF welcomes a victory for online free speech in Freecycle
v. Oey, a case from the Ninth Circuit Court of Appeals
upholding the right to engage in open discussion about
words companies are trying to trademark without the fear of
being sued. EFF signed onto the amicus brief written by
Stanford Law Professor Mark Lemley arguing that such
discussions were not trademark violations.

The Freecycle Network Inc. (TFN), operates freecycle.org, a
hub site for localized groups of people seeking a quick and
easy way to give and receive stuff for free. TFN filed a
federal trademark application for the term "freecycle." Tim
Oey, once involved with TFN, took to the Internet to urge
people to oppose TFN's effort to trademark the term,
arguing that freecycling should be a grassroots movement.

TFN sued to squelch Oey's speech and moved for a court
injunction prohibiting him from expressing his opinions.
TFN argued that he had infringed and disparaged its
trademark and managed to convince a district court judge in
Arizona to grant the injunction. On appeal, however, the
Ninth Circuit ruled that Oey's honest opinion about
Freecycle's trademark rights could not be stamped out by a
claim of trademark infringement under the Lanham Act.

Read our full analysis of the decision here:
http://www.eff.org/deeplinks/archives/005462.php

Download the opinion in Freecycle v. Oey:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/77FC32035139985C882573610078DF4B/$file/0616219.pdf?openelement

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* Google Associate General Counsel to Speak at EFF October
10 Bootcamp and Google to Offer Scholarships

Great news!  Google Associate General Counsel Alex
MacGillivray has agreed to attend the EFF Compliance
Bootcamp and to explain why Google thinks it is important
that Web 2.0 companies learn the information we're
teaching.

Find out more here:
http://www.eff.org/bootcamp/

Additionally, Google has generously offered funding for
scholarships for approximately 20 additional individuals to
attend the Bootcamp. To apply, submit one paragraph to us
at Bootcamp@eff.org explaining:

1) Why you would like to attend the Bootcamp, and
2) Why you need a scholarship in order to attend.

We will review them and choose the scholarship recipients
on Monday October 8. Thanks Google!

For this post:
http://www.eff.org/deeplinks/archives/005469.php

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* Basics on EFF's Web 2.0 Compliance Bootcamp

Does your interactive company have to contend with the maze
of laws dealing with user privacy and publishing user
content? Want to do the right thing by the online community
that gives your business value and still fulfills your
legal obligations?

EFF is hosting a one-day session for Web 2.0 workers who
handle issues arising from users and user-generated
content. From DMCA to CDA to ECPA, the law surrounding
Internet content can be confusing, especially for the folks
who have to decide on the fly whether to let something stay
up or to take it down, or whether to give their customer's
name to the FBI agent on the phone. Let us help.

Topic areas include:
* Defamation, harassment, and other accusations of bad
behavior;
* Fair use, free culture, and the right to remix;
* Copyright takedowns and put-backs: understanding the
Digital Millennium Copyright Act;
* Responding to cops, crooks, and courts who want your
customers' communications and other private information;
* Avoiding becoming the next Napster and staying on the
safe side of the Copyright Wars;
* The rights of anonymous speakers;
* Porn, predators, and the pressure to police; and
* Lightning rounds on Creative Commons licenses,
webcasting and what to do when you've been hacked.

Who should attend:
People who do front-line or mid-level work for companies
and projects that rely on user-generated content and
communications. This includes compliance, customer service
and community management workers.

Why:
In the past year or so, we've met with several Web 2.0
companies, sometimes before -- and sometimes after --
embarrassing incidents when they found themselves out of
step with their communities or the law. We'd like to give
the people who make these important initial decisions the
tools they need to do the right thing by their companies
and their customers.

Where:
Fenwick and West Silicon Valley Center
Mountain View, California

When:
Wednesday, October 10, 2007

How much:
Sliding scale of $100-200 per person. Space is limited, so
sign up soon. Email: bootcamp@eff.org.

For EFF's Bootcamp page:
http://www.eff.org/bootcamp

For this post:
http://www.eff.org/deeplinks/archives/005444.php

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* Vote for EFF on the Working Assets 2007 Donations Ballot!

A telecommunications company supports EFF!

That's right. You heard us correctly.

The good folks at Working Assets are continuing to do their
part to make our world a better place by generously
supporting EFF as a recipient in their 2007 end-of-year
donation campaign.

Are you or your friends Working Assets customers who
rounded up your phone bill all year? Well it's time to
spread the love.

When you fill out your Working Assets 2007 Donations
Ballot, vote to allocate this year's funding to EFF. The
distribution of funds is determined solely by how many
votes each group receives. The more votes you give EFF, the
more money we get. It's that simple. Just go to:
http://www.WorkingAssets.com/vote

The voting deadline is December 31, so act quickly!

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* EFF Seeks Intellectual Property Staff Attorney

We're hiring!

EFF is seeking an intellectual property staff attorney for
its legal team. Responsibilities will include litigation,
public speaking, media outreach, plus legislative and
regulatory advocacy, all in connection with a variety of
intellectual property and high technology matters.

Qualified candidates should have at least four years of
legal experience, with knowledge in patent law and at least
one other IP specialty (copyright, trademark, trade
secret). Litigation experience is preferred, including
significant experience managing cases, both overall case
strategy and day-to-day projects and deadlines. Candidates
should have good communication skills and interest in
working with a team of highly motivated lawyers and
activists in a hard-working nonprofit environment. Strong
writing and analytical skills as well as the ability to be
self-motivated and focused are essential. Tech savvy and
familiarity with Internet civil liberties and high tech
public interest issues preferred. This position is based in
San Francisco.

Interested applicants should submit a resume, writing
sample, and references to: ipjob@eff.org.

For this post:
http://www.eff.org/deeplinks/archives/005441.php

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* miniLinks
The week's noteworthy news, compressed.

~ Dems Ask Telcos Spying Questions
Top Democrats want to know what telcos did and when they
did it.
http://blog.wired.com/27bstroke6/2007/10/dems-ask-telcos.html

~ Internet Pioneer Bashes Telco "Amnesty" Plans
Craigslist-founder Craig Newmark supports EFF's case
against AT&T.
http://www.cnewmark.com/2007/09/att-and-verizon.html

~ RIAA Gets Day in Court
The recording industry's first copyright infringement jury
trial is underway.
http://arstechnica.com/news.ars/post/20071002-first-riaa-trial-gets-under-way-with-jury-selection.html

~ Virgin Digital out of Business
DRM-laden music from Virgin is now obsolete and must be
ripped to CD to be saved.
http://www.virgindigital.co.uk/Message.aspx

~ Hollywood Goes After Two Piracy Sites
The MPAA filed suit against two sites that it says enable
piracy.
http://www.news.com/Hollywood-studios-go-after-two-piracy-sites/2100-1030_3-6210566.html

~ EBay Seller Sues Autodesk for DMCA Takedown
Can you sell a copy of software you bought at a garage sale
on eBay?
http://www.channelregister.co.uk/2007/09/15/lawyerless_autocad_selling_ebayer_sues_autodesk/

~ Germans Rally for "Liberty Instead of Fear"
Thousands rallied in Berlin against "surveillance madness."
http://www.heise.de/english/newsticker/news/96460

~ In Crackdown, Myanmar Junta Unplugs Internet
The generals try to silence criticism by cutting off
Internet and phone communications with the outside world.
http://www.nytimes.com/2007/10/04/world/asia/04info.html?ex=1349150400&en=e92bd2559a1236be&ei=5090&partner=rssuserland&emc=rss

~ War Between Apple and Hackers Heats Up
Apple's claim that unlocking your iPhone will result in an
iBrick is being put to the test.
http://www.theregister.co.uk/2007/10/03/iphone_update_response/

~ Pay What You Want for New Radiohead
The hugely popular band's new pricing policy shocked the
music industry.
http://ap.google.com/article/ALeqM5g6TXL-5qBlGqmy6aksw32SVnEmcgD8S1CNJ05

~ Today's Public School Menu: Tater Tots and Finger Scans
Should biometrics be part of your child's school lunch?
http://www.time.com/time/business/article/0,8599,1665119,00.html

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
http://www.eff.org/

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

Membership & donation queries:
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