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EFFector - Volume 20, Issue 47 - EFF Obtains Documents Detailing High-Level Battles Over Surveillance Law

EFFector Vol. 20, No. 47  December 5, 2007

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 451st Issue of EFFector:
  • EFF Obtains Documents Detailing High-Level Battles Over Surveillance Law
  • EFF Releases Reports and Software to Spot Interference with Internet Traffic
  • EFF Moves to Block New Jersey Township From Unmasking Blogger
  • Arizona Affirms Strong Protections for Anonymous Speech Online
  • Between Friends: The Perils of Centralized Blogging
  • Darknet Assumptions Still True
  • Thanks to Jonathan Zittrain and
  • Nominate a Pioneer for EFF's 2008 Pioneer Awards
  • Get Your Holiday Gifts and Support Digital Freedom at the EFF Store!
  • Dear Santa: EFF Seeking Donations of Digital Video Equipment
  • miniLinks (8): Robert Reich on Telecom Immunity
  • Administrivia

For more information on EFF activities & alerts:

Make a donation and become an EFF member today!

Tell a friend about EFF:

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

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Dear EFFector Readers,

As 2007 draws to a close, the board and staff of EFF would
like to thank you for your support over the past year. This
year was not an easy one in cyberspace, but EFF was there
fighting for your rights:
  • * EFF fought against government attempts to give immunity to telecom companies that broke the law and violated their customers' rights.
  • * EFF challenged overzealous companies and individuals who misused copyright law to shut down legitimate, legally-protected speech.
  • * EFF worked at the World Intellectual Property Organization (WIPO) against mandates that would have created new copyright-like rights in digital broadcasts.
  • * EFF opposed new laws in Europe that would make copyright violations a criminal offense.
  • * EFF continued to challenge software patents that threaten innovation.
  • * EFF utilized the Freedom of Information Act (FOIA) to shine light on government behaviors and programs.
And we did so much more, as I'm sure you've noticed as an
EFFector reader.

But none of our work is possible without the financial
support of folks like you. Only one-third of EFFector
recipients are current dues-paying members. If you haven't
already done so, please join your fellow EFFector readers
in becoming a member today, so we can continue to protect
your rights in 2008 and beyond. Visit:

Thanks so much for your help!

Here's wishing you and yours a happy holiday season.

Shari Steele
Executive Director
Electronic Frontier Foundation

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* EFF Obtains Documents Detailing High-Level Battles Over
Surveillance Law

Records Posted on EFF's Website

San Francisco - The Electronic Frontier Foundation (EFF)
has received the first of two batches of records from the
Office of the Director of National Intelligence (ODNI)
concerning the Administration's attempts this past summer
to enact the Protect America Act and eviscerate the Foreign
Intelligence Surveillance Act (FISA).

The records reveal new details about the contentious
negotiations between Director of National Intelligence Mike
McConnell and members of Congress that resulted in the
passage of the Protect America Act -- expansion of spying
powers that undermined the Constitution and the privacy of
Americans. In one letter, Senate Select Committee on
Intelligence Chairman John D. Rockefeller IV claims that
McConnell made "assurances" and "agreements" that were not
carried out, and says, "I and others involved in these
important and intense FISA negotiations are left to
question whether the negotiations were carried out in good
faith or whether your commitments were overruled by others
at the White House or within the Administration." Senator
Sheldon Whitehouse also expressed "deeply felt displeasure
with the administration's legislative strategy on the
recent 'FISA Fix'" and says that the Protect America Act
was passed "at a substantial price, one that will be paid
in rancor, suspicion and distrust."

"These documents give Americans a unique inside look at
high-level discussions about how a controversial -- and
critically important -- change to the law occurred," said
EFF Staff Attorney Marcia Hofmann. "A Senate vote on more
changes to FISA is just weeks away, and these records could
not be more relevant to the ongoing debate on these

EFF  sued for the release of the records under the Freedom
of Information Act (FOIA) earlier this year, demanding
documents concerning briefings, discussions, or other
contacts ODNI officials have had with representatives of
telecommunications companies or members of Congress about
amending FISA. This initial 250-page disclosure focuses on
communications between ODNI and members of Congress but
includes no information about the telecom industry's
lobbying efforts. A federal judge ordered ODNI to release
the rest of the relevant documents by December 10.

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.

For part one of the ODNI documents:

For part two of the ODNI documents:

For more on EFF v. ODNI:

For this release:

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* EFF Releases Reports and Software to Spot Interference
with Internet Traffic

Technology Rights Group Addresses the Comcast Controversy

San Francisco - In the wake of the detection and reporting
of Comcast Corporation's controversial interference with
Internet traffic, the Electronic Frontier Foundation (EFF)
has published a comprehensive account of Comcast's
packet-forging activities and has released software and
documentation instructing Internet users on how to test for
packet forgery or other forms of interference by their own

Separate tests in October from EFF, the Associated Press,
and others showed that Comcast was forging small parcels of
digital data, known as packets, in order to interfere with
its subscribers' and other Internet users' ability to use
file-sharing applications, like BitTorrent and Gnutella.
Despite having been confronted by this evidence, Comcast
continues to issue incomplete and misleading statements
about their practices and their impact on its customers.

"Comcast is discriminating among different kinds of
Internet traffic based on the protocols being used by its
customers," said EFF Senior Intellectual Property Attorney
Fred von Lohmann. "When confronted, Comcast has been
evasive and misleading in its responses, so we decided to
start gathering the facts ourselves."

Protocol-specific discrimination gives ISPs a tremendous
amount of power over the kinds of new applications and
services that can be deployed by innovators and
competitors. To the extent that practices like those
employed by Comcast change the "end-to-end" architecture of
the Internet, those practices jeopardize the Internet's
vibrant innovation economy.

"This recent interference by Comcast in their subscribers'
Internet communications is a cause for grave concern," said
EFF Staff Technologist Peter Eckersley. "It threatens the
open Internet standards and architecture that have made the
network such an engine of technical and economic

In addition to an account of the results of EFF's
independent testing of Comcast's packet forging activities,
EFF has also issued a detailed document and software to
assist other networking experts in conducting their own

"If ISPs won't give their customers accurate information
about their Internet traffic controls, we have to detect
and document them for ourselves," said EFF Staff
Technologist Seth Schoen.

For "Packet Forgery by ISPs: A Report on the Comcast

For "Detecting Packet Injection: A Guide to Packet Spoofing
by ISPs":

For more on EFF's research into Comcast's packet

For this release:

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* EFF Moves to Block New Jersey Township From Unmasking

Last week, EFF took action in the latest battle to protect
the anonymity of an online speaker. And in this case, the
at-fault litigant is a government entity.

On June 13, 2007, the New Jersey Township of Manalapan
filed a malpractice lawsuit against its former attorney
Stuart Moskovitz, alleging misconduct regarding the
Township's purchase of polluted land in 2005. The decision
to file suit was met with a lively debate in the regional
press and among local bloggers. One Blogspot blogger by the
name of "datruthsquad" was particularly critical of the
Township for this and other decisions. Attorneys for the
Township issued a subpoena to Google (owner of Blogspot)
demanding that the identity of this anonymous critic be
turned over, along with datruthsquad's contact information,
blog drafts, e-mails, and "any and all information related
to the blog." Despite repeated requests from EFF to explain
how this could be anything other than an attempt to expose
a vocal critic, attorneys for the Township refused to
withdraw the subpoena and informed EFF that it could go to
court to object to the subpoena if it so chose. EFF filed a
motion to quash the subpoena and for a protective order to
prevent the Township from issuing similar subpoenas in the

This case offers a number of twists that set it apart from
an "ordinary" Doe case, but one in particular is worth
noting: the Township is absolutely barred from using an
ordinary discovery subpoena to obtain such identity-related
information. When the government seeks to uncover
information stored with online providers, the federal
Stored Communications Act forces them to use other more
restrictive procedures that are subject to more intense
court scrutiny. No matter how compelling the Township's
justification, the law says that discovery subpoenas simply
can't be used by the government for such purposes.

For the full motion to quash:

For more on this case:

For the full post by EFF Staff Attorney Matt Zimmerman:

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* Arizona Affirms Strong Protections for Anonymous Speech

An Arizona appellate court joined a growing judicial
consensus recognizing the need to protect the anonymity of
online speakers from overreaching discovery requests.

Mobilisa, a Washington-based communications company, went
to court last year to seek the identity of an individual
who had obtained an email initially sent by the company's
CEO to his mistress. The individual had forwarded the email
to company employees. A lower court agreed to issue a
subpoena requiring Doe's ISP to reveal Doe's personal
information. Doe and the ISP, represented by longtime EFF
cooperating attorney Charles Lee Mudd, Jr., immediately
appealed. EFF and Public Citizen (with help from Arizona
attorney John Flynn) filed an amicus brief in support of
Doe, pointing out that strong protection for the right to
engage in anonymous communication -- to speak, read,
listen, and associate without revealing your full identity
-- is fundamental to a free society.

Concerns about political or economic retribution,
harassment, or even threats to their lives lead many people
today to choose to speak anonymously. For these individuals
and the organizations that support them, secure anonymity
is critical, often to their very safety, and courts should
not permit the use of trumped up legal claims as an excuse
to silence people who need anonymity. At the same time,
people who have legitimate grievances against anonymous
speakers should be able to pursue them in court.
Recognizing these competing concerns, courts around the
country have set up a flexible test for those seeking to
unmask anonymous speakers. The courts have required
litigants who seek an anonymous speaker's identity to show
that they have given notice of the attempt to the Doe (so
she can protect herself), present evidence to show that
their case is legitimate, and demonstrate that their need
for the information outweighs Doe's right to anonymity.

We're very pleased that the Arizona Court of Appeals
affirmed this test and thereby struck the right balance
between the competing interests of subpoenaing parties and
the anonymous speakers they seek to unmask, recognizing
that once an online user's anonymity and privacy have been
eviscerated, they cannot be repaired.

For the amicus brief filed by EFF and Public Citizen:

For this post by EFF Staff Attorney Corynne McSherry:

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* Between Friends: The Perils of Centralized Blogging

One of the paradoxes of current social software is how many
of your closely-guarded secrets you are obliged to entrust
to a third party. The news that LiveJournal has been sold
to SUP, a Moscow-based company, is the latest vivid
indication of this danger. Now, LiveJournal journal entries
are under the control of not only a young new company, but
a new jurisdiction: Russia. What does that mean for the
privacy of LiveJournal posts and the free expression of
LiveJournal users?

Countries like Russia have weaker protections over privacy
and free speech, both legally and culturally, than many
users might have come to expect. Legal considerations
aside, LiveJournal may come under far more intense pressure
to turn over user information or remove content when run
from Moscow than from the United States. The site is very
popular among Russian-speakers and is used by opposition
politicians there as much as by enthusiastic fan-fiction
authors. The political status of free expression in Russia
is on shakier ground, with journalists, online and off,
assaulted and threatened by the authorities.

LiveJournallers, already disturbed by previous acts of
control by Six Apart in the U.S., could well find
themselves caught up in far nastier fights over the public
and private content held by SUP's servers. That's of
particular concern for Russian users, or the many
Russian-speaking LJers in the former-Soviet republics that
surround Russia, who do not necessarily trust the political
or business culture of Moscow. Fortunately for those
concerned by the implications, LiveJournal's legacy in the
world of open source and open standards means that
extracting data from the service is not as painful as it
might otherwise be.

But for now, the most important lesson for Americans and
Russians alike is to be cautious about with whom and where
you share your secrets. The Internet has given us the
opportunity to make our own data public and secure;
hopefully the next generation of social software will give
us the tools to use these capabilities for ourselves,
rather than entrust the responsibility to others.

For the full post by EFF International Outreach Coordinator
Danny O'Brien:

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* Darknet Assumptions Still True

In a recent blog post, Princeton professor and EFF Board
Member Ed Felten reminds us that one of the core "Darknet
premises" -- that DRM systems on mass media content will
inevitably be broken -- continues to prove itself true. The
victim this year is AACS, the encryption scheme used to
prevent the copying of HD-DVD and Blu-ray discs. Despite
the best efforts of the entertainment industry to change
encryption keys and otherwise lock down content, AACS is
broken time and time again.

To many who follow DRM issues closely, this is hardly news;
the regular breaking of DRM systems, followed by the steady
leak of formerly-protected content into file-sharing
channels, is now so common that it barely rates a mention
in the tech press.

But copyright policy-makers still haven't gotten the
message that DRM does not slow piracy. Whether they get the
message or not, this steadily mounting pile of empirical
evidence continues to show that the anti-circumvention
provisions of the DMCA (i.e., "thou shalt not circumvent
DRM") are a failure if the goal was to impede digital
infringement. At the same time, of course, the DMCA
continues to be a valuable tool for rightsholders who want
to use DRM to impede competition, innovation, and free

For Professor Ed Felten's post:

For the full post by EFF Senior Staff Attorney Fred von

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* Thanks to Jonathan Zittrain and

Last week, Jonathan Zittrain delivered a presentation
titled "The Future of the Internet -- And How to Stop It"
at CNET Networks in San Francisco. The event attracted a
keen audience, eager to hear about the dangers implied by
recent trends in networked devices and Internet security.
EFF would like to thank Jonathan Zittrain for his excellent
presentation and for hosting the event!

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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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* Get Your Holiday Gifts and Support Digital Freedom at the
EFF Store!

Spread some freedom and holiday cheer through the EFF
Store. Our t-shirts, hats, 4th Amendment shipping tape, and
other items make great gifts -- and the proceeds from your
purchase make a fine gift to EFF:

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* Dear Santa: EFF Seeking Donations of Digital Video

EFF is hoping to augment our digital rights activism in
2008 by creating online video. We have awesome ideas, but
unfortunately, we don't have the video making tools! Maybe
you're a webcaster who's upgrading to a newer camera and
have last year's model gathering dust in the corner, or
perhaps your company wants to donate the full package. If
you can help us with any of the items on our list below,
please email

In a perfect world, here's what we'd like to have:

1. HD camcorder with audio input
2. Fluid head tripod
3. Final Cut Express 4

EFF is a 501 (c) (3) charitable organization. Your gift
will be tax deductible to the full extent provided by law.

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* miniLinks
The week's noteworthy news, compressed.

~ Robert Reich on Telecom Immunity
Former Secretary of Labor argues against offering immunity
to telecoms in warrantless wiretapping cases.

~ Feds Routinely Tracking Cellphones
Cellphone companies are facing routine requests from
federal officials to turn over real-time tracking data on

~ Firefighters Trained to Gather Intelligence
Will firefighters, who do not require warrants to enter a
home, be used to spy on the public?

~ Facebook's Other Privacy Violation
An employee claims Facebook voluntarily handed her private
info over to her employer.

~ France Plans to Cut Off Internet Pirates
French President Sarkozy plans to suspend or terminate
Internet accounts for those found guilty of downloading
music and films without paying.

~ Internet CEO Calls on ISPs to Block P2P
Mark Cuban supports an outright ban on P2P, claiming
Internet service is slowed by P2P content distribution.

~ UK Retailers Call for Ditching DRM
A retailers' organization says that DRM is "stifling growth
and working against the consumer interest."

~ Pay What You Like Music Plan
Following in Radiohead's footsteps, CASH Music would let
fans pay what they please.

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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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