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EFFector - Volume 20, Issue 46 - Congress Keeps Telecoms on the Hook for Illegal Spying

EFFector Vol. 20, No. 46  November 20, 2007

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 450th Issue of EFFector:

  • Congress Keeps Telecoms on the Hook for Illegal Spying
  • Ninth Circuit Issues Decision in Al-Haramain Warrantless Wiretapping Case
  • EFF Wins Reexamination of Bogus Internet Subdomain Patent
  • You Bought It, You Own It: Quanta v. LG Electronics
  • Undermining Freedoms in China: Yahoo! Learns the Cost of Facilitating Human Rights Abuses
  • EFF to Host Student Fellows for Google Policy Fellowship Program
  • You're Invited! BayFF with Jonathan Zittrain: "The Future of the Internet -- And How to Stop It"
  • Nominate a Pioneer for EFF's 2008 Pioneer Awards!
  • miniLinks (10): Less Talk, More Action, Warner
  • Administrivia

For more information on EFF activities & alerts:

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

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* Congress Keeps Telecoms on the Hook for Illegal Spying

Full House and Senate Judiciary Committee Each Pass Bills
with No Amnesty for Warrantless Surveillance

Washington, D.C. - Both the full House of Representatives
and the Senate Judiciary Committee voted Thursday to keep
telecommunications companies on the hook for their role in
illegal government spying on millions of ordinary Americans
-- at least for now.

The bills each make changes to the Foreign Intelligence
Surveillance Act (FISA). But, despite veto threats from the
White House, neither of the two bills give blanket amnesty
to telecoms that took part in the massive warrantless
domestic surveillance program. Both bills would allow
dozens of lawsuits against the telecoms to proceed, thus
allowing federal courts to rule on whether dragnet domestic
surveillance documented is legal.

The Electronic Frontier Foundation (EFF) represents the
plaintiffs in Hepting v. AT&T, the first class-action
lawsuit accusing the telecom giant of violating the law and
the privacy of its customers by collaborating with the
National Security Agency (NSA) in dragnet government spying
on millions of Americans. While the Senate Judiciary
Committee bill as written does not affect this and other
lawsuits over the Administration's warrantless
surveillance, provisions that allow the cases to proceed
while also affording the companies some form of limited
liability relief could well be added back into the bill
when it is debated on the Senate floor. A conference
committee will then meet to reconcile the House and Senate

"We are pleased that the House and a majority of the
Judiciary Committee's members have signaled that they want
Americans to have their day in court," said EFF Staff
Attorney Kevin Bankston. "The fight isn't over yet,
however. We look forward to working with Senators Leahy,
Specter, and Feingold and other lawmakers in both chambers
of Congress to make sure that the bill eventually sent to
the president allows the people's lawsuits to go forward."

For more on Hepting v. AT&T and telecom immunity:

For this release:

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* Ninth Circuit Issues Decision in Al-Haramain Warrantless
Wiretapping Case

Last week, the U.S. Ninth Circuit Court of Appeals issued
an opinion in Al-Haramain Islamic Foundation v. Bush,
holding that the lower court can decide if the case can go
forward. The plaintiffs had sued the government, alleging
that the government illegally spied on them. Their proof
was a document that the government inadvertently gave them,
which they contend proved that the Islamic charity was
targeted by the NSA's warrantless surveillance program. The
government argued that the case should be dismissed based
on the state secrets privilege.

The Ninth Circuit found that the document was a state
secret -- normally this could keep the evidence from being
used in the case. But the Ninth Circuit also found that the
government's state secrets argument failed to block the
entire case. Finally, in a "to be continued" twist, the
Ninth Circuit left it up to the federal district court to
determine whether the Foreign Intelligence Surveillance Act
(FISA) preempts the state secrets privilege, a decision
that could ultimately allow the court to view the document
in private, high-security conditions in its determination
of the legality of the surveillance.

For the 9th Circuit opinion:

For this post:

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 * EFF Wins Reexamination of Bogus Internet Subdomain

Fourth Successful Challenge from EFF's Patent-Busting

San Francisco - The Electronic Frontier Foundation (EFF)
has won reexamination from the U.S. Patent and Trademark
Office (PTO) of a bogus patent on Internet subdomains --
the fourth successful reexamination request from EFF's
Patent Busting Project.

The patent, now held by Hoshiko, LLC, claims to cover the
method of automatically assigning Internet subdomains, like
"" for the parent domain "" Previous
patent owner Ideaflood used this illegitimate patent to
demand payment from website hosting companies that offer
such personalized domains, including, T35
Hosting, and LiveJournal, a social networking site where
each of its three million users have their own subdomain.

In the reexamination request, EFF and Rick Mc Leod of
Klarquist Sparkman, LLP, showed that the method Ideaflood
claimed to have invented was well known before the patent
was issued. In fact, website developers were having public
discussions about how to create these virtual subdomains on
an Apache developer mailing list for more than a year
before Ideaflood made its patent claim. The open source
developers established a public record of the technology
development, providing the linchpin to EFF's patent

"The hard work of open source developers should not be
taken out of the public domain and used to threaten other
legitimate innovators," said EFF Senior Staff Attorney
Jason Schultz, who heads EFF's Patent Busting Project.
"Fortunately, the open source approach to development
helped protect Apache and other web projects by creating
the evidence needed to challenge this illegitimate patent."

The challenge to the Ideaflood patent is part of EFF's
Patent Busting Project, which combats the chilling effects
that bad patents have on public and consumer interests. So
far, the project has killed one bogus patent and won
reexamination of three others.

"Based on the PTO's initial analysis in the reexamination
order, it appears likely that all claims will be rejected
in view of the techniques disclosed by Apache developer
Ralf Engelschall and others," said Rick Mc Leod, who
drafted the EFF petition. "We look forward to the PTO's
detailed analysis of our request."

For the full reexamination order:

For more on EFF's Patent Busting Project:

For this release:

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* You Bought It, You Own It: Quanta v. LG Electronics

Earlier this week, EFF filed an amicus brief with the U.S.
Supreme Court in Quanta v. LG Electronics, a case that asks
whether patent owners can impose restrictions on what you
can do with a product after you buy it. The brief, filed on
behalf of EFF, Consumers Union, and Public Knowledge, makes
a simple point: "You bought it, you own it."

For over a century, the Supreme Court has stood behind the
"patent exhaustion doctrine," which establishes that the
patent is "exhausted" upon the first sale of a product.
Once it's been sold, the purchaser is free to use, repair,
or resell it without fear of patent liability.

But trouble began in 1992, when the Federal Circuit turned
the patent exhaustion doctrine on its head in a case called
Mallinckrodt v. Medipart, finding that patent owners could
trump the exhaustion doctrine by imposing "conditions" on
the sale. This opened the door for various post-sale use
restrictions, like "single use only" labels; "personal use
only, not for resale" stamps; or "for use only with
authorized components" stickers. Needless to say, these
restrictions jeopardize independent repair services and
refurbishers, and are already interfering with secondary
markets like eBay and Craigslist. All of this is bad news
for consumers.

Fortunately, EFF isn't alone -- a number of amicus briefs
have been filed urging the Supreme Court to reassert the
patent exhaustion doctrine, including briefs from Dell, HP,
eBay, IBM, NCR, independent auto repair services, and at
least one biotech firm. Look for more news on this front
early next year, as oral argument before the Supreme Court
is set for January 16.

For the full amicus brief:

For EFF Senior Staff Attorney Fred von Lohmann's complete

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* Undermining Freedoms in China: Yahoo! Learns the Cost of
Facilitating Human Rights Abuses

Last week, Yahoo! settled a US lawsuit with Shi Tao and
Wang Xiaoning, two of the Chinese journalists who were
imprisoned and tortured after their identities were handed
over by Yahoo! to the Chinese authorities. The drubbing
Yahoo! has received over this case has been excruciatingly
public for the company. Few CEOs want to be described as
representative of "moral pygmies" in a Congressional
committee room.

Hopefully Yahoo!'s officers have learned their lesson.
Privacy and free expression should never be seen as
something that can quietly be brushed aside when doing
business in repressive regimes. If U.S.-based Internet
companies are to have any edge over local firms in these
high risk overseas markets, it is because they offer the
possibility that they will not capitulate to the
authorities and will not bend to vague demands to restrict,
or filter, or spy on their users for the local regime. A
defense of user privacy and free speech is, in the words of
the marketplace, a "unique selling point" for U.S. Internet
companies in these markets, and they should trade on that
fact and design their technology to support these rights,
not remove them.

We certainly hope that this spurs a broader movement by
Yahoo! and others to resist efforts to turn them into the
handmaidens of oppression around the world.

For EFF's open letter to Congress on principles for
companies doing business in repressive regimes:

For EFF International Outreach Coordinator Danny O'Brien's
complete post:

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* EFF to Host Student Fellows for Google Policy Fellowship

This week, Google announced the Google Policy Fellowship, a
program that gives students the chance to spend the summer
working alongside host organizations on topics of Internet
and technology policy. Much like how the Summer of Code
project aims to develop and promote open source projects,
Google is hoping that the policy fellowship project will
advance debate on key policy issues affecting the public.
Fellows will receive a summer stipend while working with
host organizations on particular topics, and EFF is opening
its doors to host interested applicants. Google's
application deadline is January 1, 2008.

For more about the Google Policy Fellowship:

For a descripton of EFF's target issues for potential

For the Google Policy Fellowship application:

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* You're Invited! BayFF with Jonathan Zittrain: "The Future
of the Internet -- And How to Stop It"

EFF invites you to hear luminary researcher Jonathan
Zittrain, principal of the Oxford Internet Institute,
deliver a presentation on the topic of his next book: "The
Future of the Internet -- And How to Stop It." Zittrain
will cover what he sees looking forward, as the Internet
ecosystem becomes blotted by restrictive tools and rash
approaches to security challenges. The event is hosted by at CNET Networks.

Wednesday, November 28th, 2007 at 7:30 p.m.

Jonathan Zittrain speaks on "The Future of the Internet --
And How to Stop It. The Internet is primed for a meltdown -
and the most obvious cures are just as bad."

Jonathan Zittrain is one of the world's foremost scholars
of technology law and technology policy. He holds the Chair
in Internet Governance and Regulation at Oxford University
and is a principal of the Oxford Internet Institute. His
research interests include battles for control of digital
property and content, cryptography, electronic privacy, the
roles of intermediaries within Internet architecture, and
the useful and unobtrusive deployment of technology in
education. He co-founded the Berkman Center for Internet &
Society at Harvard Law School, as well as the OpenNet
Initiative, which tracks Internet filtering worldwide.

CNET Networks
235 2nd Street
Ground Floor
San Francisco, CA 94105

RSVP to:

This event is free and open to the general public.

CNET Networks is accessible via BART. Get off at the
Montgomery station and use the exit marked 2nd and Market.
Walk south on 2nd Street until you reach the CNET building
on the left. It's also about seven blocks from the Caltrain

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* Nominate a Pioneer for EFF's 2008 Pioneer 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 2008.

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 2008 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 accept nominations
until January 1, 2008.

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 operating 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.

~ Less Talk, More Action, Warner
Edgar Bronfman, Warner Music boss, says he and the industry
"fooled ourselves" over lawsuits: so when will they stop
fooling (and suing) the public?

~ Podcast: EFF and the RIAA square off on filesharing
EFF Senior Staff Attorney Fred von Lohmann speaks opposite
the RIAA's lead national counsel, Richard L. Gabriel, on
the music industry's efforts to curb unauthorized music

~ Comcast Sued Over BitTorrent Blocking
California case alleges unfair business practices.

~ Russia Uses Copyright to Stifle Dissent
Selective prosecution of software infringement looks to be
politically motivated.

~ Canadian Copyright Bill "Weeks Away"
Michael Geist reports on the politics behind this risky

~ The Access Denied Map
Web 2.0 sites, and the countries that ban them.

~ Aaaaaarrrrrr-arrrrr-arrrrrrrrrrrr! (TM)
Tarzan's characteristic yell is not trademarkable in the
EU, court rules.

~ The Strange Story of Dual_EC_DRBG
Was a random number generator standard backdoored by the

~ Real ID Splits the Republicans
First it hit Democrats: now Republicans are torn over a
national ID system.

~ Anonymity for the Administration, but Not for Us?
What it means to consumers when a director of national
intelligence says their privacy has to be "redefined".,1,7251549.column

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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)	

Richard Esguerra, EFF Activist	

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