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EFFector - Volume 20, Issue 4 - Action Alert - Tell Congress to Investigate the NSA Spying Program!


EFFector - Volume 20, Issue 4 - Action Alert - Tell Congress to Investigate the NSA Spying Program!

EFFector Vol. 20, No. 4  January 23, 2007

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 410th Issue of EFFector:
  • Action Alert - Tell Congress to Investigate the NSA Spying Program!
  • Update on Eli Lilly Zyprexa Documents Fight
  • Signs of Music Download DRM Fading
  • Major Labels Block Zune Sharing of Certain Songs
  • Newspaper Publisher Tries to Thwart First Amendment
  • Time Running Out -- Nominate a Net Pioneer Now for EFF's 2007 Awards!
  • miniLinks (8): Andy Griffith Stands Up to Warrantless Wiretapping
  • *Administrivia

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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* Action Alert - Tell Congress to Investigate the NSA 
Spying Program!

Over five years since it first began, the NSA's massive 
domestic spying program remains shrouded in secrecy. Last 
week, the Bush Administration announced that it has let the 
shadowy FISA court review the program, but that's not 
enough -- the President must abide by the law and answer to 
the traditional court system, Congress, and the American 
public. Take action and demand immediate Congressional 

Three federal courts have already rejected the government's 
bogus arguments and allowed cases to go forward regarding 
the secret surveillance. With its back against the wall, 
the Administration has finally conceded that judicial 
review should be involved at some level.

That's welcome news, but the President is still trying to 
dodge meaningful oversight. While claiming that the secret 
FISA court orders legalize the program, the Administration 
has refused to let anyone else see the orders and confirm 
key details about what they permit. EFF is skeptical that 
they actually satisfy the strict requirements of current 
statutes or the Fourth Amendment, considering the broad 
program of dragnet surveillance alleged in our case against 
AT&T for its role in the program. 

Congress must do its job and help uncover the truth about 
the program. Take action now to protect the checks and 
balances that define our democracy: 

Learn more about EFF's case against AT&T:

Read the Justice Department's letter to Senators Leahy and 

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* Update on Eli Lilly Zyprexa Documents Fight

EFF was back in court January 16-17 defending the right of 
an anonymous wiki contributor to post links to important 
internal Eli Lilly documents about its biggest-selling 
drug, Zyprexa. After hearing two days of testimony from 
those involved (and not involved) with the disclosure of 
the Lilly documents, the judge has ordered additional 
briefs and promised a decision sometime in early February.

Unfortunately, he also extended his January 4 injunction 
that bars anyone from posting the documents or information 
that would "facilitate the dissemination of the documents" 
(presumably, including links) to until 
he is able to issue his ruling.

The good news is that the documents continue to be readily 
available on the Internet. (One law professor said he was 
able to find and download them in 19 minutes.)

The bad news is that the judge's order constitutes a prior 
restraint on free speech -- the court's injunction 
prohibits the whole world from publishing the documents on It's hard not to compare this outcome 
with the Pentagon Papers case, where the Supreme Court 
threw out even a temporary injunction against publication 
of stolen Pentagon documents in the New York Times and 
Washington Post. (It's also reminiscent of Proctor & Gamble 
v. Bankers Trust, where the court threw out a prior 
restraint against Business Week over documents leaked from 
a lawsuit.)

But based on the evidence introduced in court, it appears 
clearer than ever that Eli Lilly will not be able to 
justify any ongoing restriction on publication of these 
documents by those who were not involved in the initial 
leak. So we are looking forward to Judge Weinstein's 
ultimate ruling.

For this post and related links:

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* Signs of Music Download DRM Fading

Apparently, this year's MIDEM conference, the music 
industry's international trade show, took place in a 
parallel universe where the major record labels may be 
willing to embrace the open MP3 format. And this parallel 
universe may be coming to an online store near you in 2007.

According to the International Herald Tribune, "Executives 
of several technology companies ... said ... that a move 
toward the sale of unrestricted digital files in the MP3 
format from at least one of the four major record companies 
could come within months." While the RIAA's Mitch Bainwol 
pretended that fully interoperable digital rights 
management (DRM) could exist, the article recounts many 
examples that demonstrate "a new appreciation in the 
[music] industry for unrestricted copies, which could be 
sold as singles or through subscription services or made 
freely available on advertising-supporting Internet sites."

The major labels should have gotten this clue long, long 
ago. Unfortunately, it remains clear that the major record 
labels aren't ready to eschew DRM entirely. They're once 
again in Congress pushing for a backdoor DRM mandate for 
satellite and digital radio as well as webcasting. 

The labels may finally be hearing your disdain for DRM at 
online music stores -- make your voice heard in Congress 
now by opposing mandatory radio DRM:

For this post and related links:

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* Major Labels Block Zune Sharing of Certain Songs

DRM may be fading for music downloads, but, in the 
meantime, it's still giving music fans a raw deal.

Microsoft is trying to set its Zune media player apart from 
the iPod by showcasing its remarkably limited sharing 
feature. Many reviews have harped on how shared songs can 
only be played three times over three days. But the 
restrictions are actually even worse -- if you read the 
fine print, you'll find that "The Zune to Zune sharing 
feature may not be available for all audio files on your 

In fact, Engadget reports that certain songs bought at 
Microsoft's own store cannot take advantage of Zune's 
sharing. All the songs come wrapped in DRM, and apparently 
Microsoft doesn't tell customers at the time of purchase 
whether songs can be shared or not.

The Zunerama blog tested the sharing feature on the top 50 
songs sold at the Zune Marketplace, and 29 songs produced 
this message: "Can't send some songs because of rights 

As usual, when you buy DRMed media, you may be getting much 
less than the online music service has promised.

For this post and related links:

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* Newspaper Publisher Tries to Thwart First Amendment

The Santa Barbara News-Press needs a lesson in the First 
Amendment. Insisting that an anonymous comment posted for a 
few hours on a news blog skewed a labor unionization vote, 
the publisher of the newspaper is demanding that Google 
disclose the blogger's account information.

It all started last September, three months after several 
editors walked off the job amid allegations that News-Press 
owner and co-publisher Wendy McCaw had improperly 
interfered in editorial decisions. The remaining employees 
were struggling to form a union to negotiate with McCaw, 
and McCaw did not take kindly to the unionization effort or 
even commentary about it. In fact, she has sued two 
newspapers based on their coverage of the labor dispute and 
threatened defamation suits against individual citizens who 
posted pro-union signs in their windows. The legal campaign 
has made headlines around the country.

Enter pseudonymous blogger Sara de la Guerra. Sara reports 
and comments on current events in Santa Barbara and has 
been critical of McCaw's anti-union tactics. In early 
September, a third party submitted a comment advocating 
various acts of cybersabotage against News-Press 
management. The comment was taken down within hours, but 
News-Press later issued a press release quoting and 
complaining about the comment.

When the employees then voted to form a union, News-Press 
filed objections with the National Labor Relations Board, 
arguing that the comment had influenced the election. Three 
months later, just a few days before the hearing on the 
objections, News-Press issued a subpoena to Google seeking 
information relating to Sara's account.

News-Press has apparently forgotten a basic principle of 
the journalistic profession--respect for the First 
Amendment, which protects the right to anonymous speech. 
Court after court has recognized that discovery requests 
that seek to pierce the anonymity of online speakers must 
be carefully scrutinized. Moreover, courts have recognized 
the need for a particularly high level of protection when 
the discovery request seeks information about a nonparty.

Such protection is especially important here, given McCaw's 
proclivity for retaliating against critics. Sara's 
important but fragile anonymity interests must be shielded 
unless News-Press can show that its claims are viable and 
that the requested evidence is necessary to advance those 

And therein lies the rub: The hearing to which the 
information would be relevant was held two weeks ago, with 
no reference to the subpoena. Thus, even assuming the 
information was relevant to some claim, the need for that 
information has passed.

EFF has written a letter to the NLRB judge explaining the 
free speech interests at stake and asking him to confirm 
the subpoena is moot. Here's hoping that the judge will 
bring a quick end to this dangerous skirmish in the News-
Press' anti-union campaign.

For this post and related links:

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* Time Running Out -- Nominate a Net Pioneer Now for EFF's 
2007 Awards!

EFF established the Pioneer Awards to recognize leaders on 
the electronic frontier who are extending freedom and 
innovation in the realm of information technology. This is 
your opportunity to nominate a deserving individual or 
group to receive a Pioneer Award for 2007.

The International Pioneer Awards nominations are open both 
to individuals and organizations from any country. 
Nominations are reviewed by a panel of judges chosen for 
their knowledge of the technical, legal, and social issues 
associated with information technology.

How to Nominate Someone for a 2007 Pioneer Award:

You may send as many nominations as you wish, but please 
use one email per nomination. Please submit your entries 
via email to We will now accept 
nominations until January 30, 2007.

Simply tell us:

1. The name of the nominee,

2. The phone number or email address or website by which 
the nominee can be reached, and, most importantly,

3. Why you feel the nominee deserves the award.

Nominee Criteria:

There are no specific categories for the EFF Pioneer 
Awards, but the following guidelines apply:

1. The nominees must have contributed substantially to the 
health, growth, accessibility, or freedom of computer-based 

2. To be valid, all nominations must contain your reason, 
however brief, for nominating the individual or 
organization and a means of contacting the nominee. In 
addition, while anonymous nominations will be accepted, 
ideally we'd like to contact the nominating parties in case 
we need further information.

3. The contribution may be technical, social, economic, or 

4. Nominations may be of individuals, systems, or 
organizations in the private or public sectors.

5. Nominations are open to all (other than current members 
of EFF's staff and board or this year's award judges), and 
you may nominate more than one recipient. You may also 
nominate yourself or your organization.

6. Persons or representatives of organizations receiving an 
EFF Pioneer Award will be invited to attend the ceremony at 
EFF's expense.

More on the EFF Pioneer Awards:

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* miniLinks
The week's noteworthy news, compressed.

~ Andy Griffith Stands Up to Warrantless Wiretapping
Mayberry's privacy rights more secure than the modern 
United States.

~ How Do New NSA Spy Warrants Work? One Expert Speculates
Jim Dempsey tries to work out what it might mean.

~ Your Privacy Law Role-Call
All the new privacy bills on their way to Congress, as 
collected by PogoWasRight.

~ Brewster Kahle's Orphan Works Case Denied
Professor Chris Sprigman offers legal analysis.

~ Music Industry Wants to Sue Euro ISPs
Litigation against third-parties expected "in weeks rather 
than months."

~ VirginMega Adopts DRM-Free MP3 on its Music Store 
France is first country in which major store switches from 
WMA to MP3.

~ German, French Orgs Unite Against DRM
Consumer groups claim iTunes' FairPlay is anti-competitive.

~ eMusic Surpasses 250,000 Subscribers...
...while unencumbered music sales go up and up.

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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, Activist	

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