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EFFector - Volume 21, Issue 13 - State Secrets Claim Should Not Bury Important Surveillance Lawsuit


EFFector - Volume 21, Issue 13 - State Secrets Claim Should Not Bury Important Surveillance Lawsuit

EFFector Vol. 21, No. 13  April 9, 2008

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 466th Issue of EFFector:
 * EFF Wins Another Speedy Release of Telecom Lobbying
 * State Secrets Claim Should Not Bury Important
Surveillance Lawsuit
 * Courtroom Showdown for eBay Seller Over Promo CD Sales
 * Administration Asserts No Fourth Amendment for Domestic
Military Operations
 * EFF Asks Court to Limit What Is Patentable
 * Courts Rule Differently on "Making Available" P2P Issue
in Elektra v. Barker and London-Sire v. Doe
 * Software for Keeping ISPs Honest
 * EU Politicians Strike Back Against Three Strikes
 * Department of Homeland Security "Blinks" and Offers Real
ID Extensions to Holdout States
 * EFF at the LugRadio Live Exhibition in San Francisco!
 * Visit the EFF Booth at the O'Reilly Web 2.0 Expo in San
 * Check out EFF at Maker Faire Bay Area in May 2008!
 * miniLinks (10): DoD Collaborating with FBI to Gain
Access to Individuals' Data
 * Administrivia

For more information on EFF activities & alerts:

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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* EFF Wins Another Speedy Release of Telecom Lobbying

Judge Orders Government to Provide Documents Within Two

San Francisco - The Electronic Frontier Foundation (EFF)
won another battle against the government over the release
of information about a campaign to change federal
surveillance law.

A federal judge ordered the Department of Justice (DOJ) and
the Office of the Director of National Intelligence (ODNI)
to give EFF records about telecom industry lobbying of
their offices by April 21, 2008.

Congress is currently considering granting immunity to
telecommunications companies that participated in unlawful
electronic surveillance on millions of ordinary Americans
as part of changes to the Foreign Intelligence Surveillance
Act (FISA). Officials at the DOJ and ODNI have been vocal
supporters of the immunity proposal. Using the Freedom of
Information Act (FOIA), EFF asked the DOJ and ODNI for any
documents reflecting telecom carriers' efforts to avoid
legal responsibility for their role in the government's
surveillance operations, but the agencies failed to comply
with EFF's requests.

"We went to court over the release of these documents
because they could play a critical role in the national
debate over telecom immunity. Denying Americans access to
this information is not only unconscionable, but also
illegal," said EFF Staff Attorney Marcia Hofmann. "We're
pleased the judge recognized that time is of the essence
here and ordered these agencies to follow the law."

In November, another federal judge ordered ODNI to comply
with a similar EFF request. Documents released as a result
of that case detailed high-level battles over changes to
FISA, featuring key members of Congress and Director of
National Intelligence Mike McConnell.

EFF also 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
widespread domestic surveillance. There are nearly 40 legal
cases that have arisen from the warrantless surveillance
currently pending in the Northern District of California

For the judge's full order:

For more on EFF v. ODNI and DOJ:

For more on Hepting v. AT&T:

For this release:

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* State Secrets Claim Should Not Bury Important
Surveillance Lawsuit

EFF Argues Against Dismissal of Al-Haramain v. Bush

San Francisco - On Monday, the Electronic Frontier
Foundation (EFF) urged a federal judge to allow an
important government surveillance lawsuit to have its day
in court, despite the government's attempt to bury the case
using the state secrets privilege.

The case is Al-Haramain Islamic Foundation v. Bush, which
alleges that federal agents illegally wiretapped calls
between the charity and its lawyers. The government has
asked U.S. District Court Judge Vaughn Walker to dismiss
the case, contending that the litigation jeopardizes state
secrets. But in an amicus brief filed Monday, EFF argues
that the Foreign Intelligence Surveillance Act (FISA) was
written to allow cases like this one to proceed with
appropriate security precautions.

"Federal surveillance law already provides clear procedures
that allow cases like Al-Haramain v. Bush to proceed fairly
and securely, and those procedures trump the
Administration's claims of blanket secrecy," said EFF
Senior Staff Attorney Kurt Opsahl. "By trying to use the
state secrets privilege as a shield against any litigation
over the legality of its warrantless wiretapping, the
administration is essentially telling the other branches
'just trust us.' But when Congress passed FISA, it
entrusted judges with the responsibility of deciding the
legality of the executive branch's surveillance

This is the government's second attempt to dismiss the
Al-Haramain case. The first motion to dismiss reached the
9th U.S. Circuit Court of Appeals, which returned the case
to Judge Walker's court to consider the FISA issue.

Judge Walker is also the presiding judge in Hepting v. AT&T
-- EFF's class-action lawsuit accusing the
telecommunications company of violating customers' rights
by illegally assisting the National Security Agency in
widespread domestic surveillance.

For the full amicus brief:

For more on Al-Haramain v. Bush:

For this release:

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* Courtroom Showdown for eBay Seller Over Promo CD Sales

EFF Argues That Labels Don't Trump Right to Resell

Los Angeles - The Electronic Frontier Foundation (EFF) and
San Francisco law firm Keker & Van Nest filed briefs in
federal court Monday on behalf of eBay seller Troy Augusto,
defending his right to resell promotional CDs ("promo" CDs)
that he buys from secondhand stores in the Los Angeles

Augusto, who does business as "Roast Beast Music" on eBay,
was sued in May 2007 by Universal Music Group (UMG), the
largest record company in the world, for 26 eBay auction
listings involving UMG promo CDs. At issue is whether the
"promotional use only, not for resale" labels on these CDs
can trump a consumer's right to resell copyrighted
materials that they own, guaranteed by copyright law's
"first sale" doctrine.

For decades, major labels have distributed promo CDs for
free to tastemakers and music industry insiders in an
effort to create buzz for upcoming releases. These promo
CDs often make their way into secondhand stores, where
Augusto purchases them for resale on eBay. UMG stamps its
promo CDs with labels declaring that the CDs may not be
resold and remain the property of UMG. The "first sale"
doctrine in copyright law, however, makes it clear that
once the copyright owner sells or gives away a CD, DVD, or
book, the recipient is entitled to resell it without
needing further permission. The summary judgment brief
filed Monday argues that UMG gives up ownership of these
promo CDs when it mails them unsolicited to thousands of
people without any intention of their return. Accordingly,
the first sale doctrine permits purchasers to resell these

"If UMG is able to stop resale of CDs just by putting 'not
for resale' labels on them, then there is nothing to stop
other restrictive labels from appearing on CDs, books, and
DVDs," said EFF Senior Intellectual Property Attorney Fred
von Lohmann. "Record companies are not entitled to strip
consumers of their first sale rights simply by putting
labels on their products."

A hearing on the motion for summary judgment is expected in
early May 2008.

For the full brief filed Monday:

For more on UMG v. Augusto:

For this release:

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* Administration Asserts No Fourth Amendment for Domestic
Military Operations

What Could It Mean for Warrantless Domestic Surveillance?

Update: Click here to read the AP article on the Yoo memo
and the Fourth Amendment.

Last week, the Washington Post reported on a newly released
memo, "Memorandum for William J. Haynes II, General Counsel
of the Department of Defense Re: Military Interrogation of
Alien Unlawful Combatants Held Outside the United States"
(March 14, 2003), which was declassified and released
publicly yesterday. The "Balkinization" blog has commentary
on the very troubling opinion.

The memo itself has some troubling language about military
interrogations, but it also contained a chilling footnote
referencing another Administration memo:

    "... our Office recently concluded that the Fourth
Amendment had no application to domestic military
operations. See Memorandum for Alberto R. Gonzales, Counsel
to the President, and William J. Haynes, II, General
Counsel, Department of Defense, from John C. Yoo, Deputy
Assistant Attorney General and Robert J. Delahunty, Special
Counsel, Re: Authority for Use of Military Force to Combat
Terrorist Activities Within the United States at 25 (Oct
23, 2001)."

Does this mean that the Administration's lawyers believed
that it could spy on Americans with impunity and face no
Fourth Amendment claim? It may, and based on the thinnest
of legal claims -- that Congress unintentionally allowed
mass surveillance of Americans when it passed the
Authorization of Use of Military Force in October 2001.

It appears that the Administration may view NSA domestic
surveillance, including the surveillance of millions of
ordinary Americans detailed in EFF's Hepting case, as a
"domestic military operation." If so, this Yoo memo would
blow a loophole in the Fourth Amendment big enough to fit
all of our everyday telephone calls, web searches, instant
messages and emails through.

The existence of clues like this footnote reinforces why
granting immunity aimed at keeping the courts from ruling
on the Administration's flimsy legal arguments is
wrongheaded and dangerous.

For the AP article on the Yoo memo and the Fourth

For the Washington Post article about the declassified
interrogation memo:

For this complete post by EFF Senior Staff Attorney Kurt

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* EFF Asks Court to Limit What Is Patentable

At their worst, "business method" patents seek to create
monopolies on relatively basic human skills, behaviors, and
interactions. In conjunction with several partners, EFF
filed an amicus brief in the case In re Bilski to challenge
business method patents and to set forth a framework that
focuses on the use of technology to determine whether or
not something is patentable. The outcome of In re Bilski
could have a significant effect on the future of patent

EFF's brief proposes that the patent office and the courts
should determine whether an invention is technological
before even considering it for patent protection and lays
out a set of factors to help make that determination. This
litmus test will help ensure that the patent system is not
used to monopolize everyday interactions and other human
behaviors. It will also provide a more intuitive
demarcation of patentable subject matter so that innovators
and the general public can avoid infringement.

For the amicus brief filed by EFF (in conjunction with The
Samuelson Law, Technology & Public Policy Clinic, Public
Knowledge, and Consumers Union):

For the complete post by EFF Intellectual Property Fellow
Emily Berger:

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* Courts Rule Differently on "Making Available" P2P Issue
in Elektra v. Barker and London-Sire v. Doe

Same day, two federal courts, two different rulings on the
concept of "making available" over P2P networks

A New York court in Elektra v. Barker gave a boost to the
recording industry by ruling that an offer to distribute a
file on a P2P network can infringe the rightsholder's
distribution right, even if no one ever actually downloaded
the file. On the same day, a Massachusetts court in
London-Sire v. Doe ruled just the opposite, holding that
"merely exposing music files to the Internet is not
copyright infringement."

The 52-page ruling in London-Sire v. Doe is the most
extensive analysis yet of the recording industry's "making
available" argument, which claims that a user infringes
copyright merely by having a song in her shared folder,
even if no one ever downloads it.

A key issue is whether a mere "offer to distribute" is
enough to infringe the distribution right, in light of the
fact that a mere offer can be enough to constitute
"publication." Unlike the court in Elektra v. Barker, the
judge in London-Sire v. Doe concludes that "distribution"
and "publication" are not identical -- "even a cursory
examination of the statute suggests that the terms are not

In light of the disagreement between these two rulings,
it's likely that these issues are headed for more
consideration by other courts. But we're grateful that
these judges (in both Elektra and London-Sire) are doing a
thorough job considering these important questions, instead
of just taking the RIAA's word on what the law is.

For more on the RIAA's "Making Available" argument:

For the complete post on Elektra v. Barker:

For the complete post on London-Sire v. Doe:

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* Software for Keeping ISPs Honest

The recent announcement of a dtente between Comcast and
BitTorrent was great news. Unfortunately, the general
problem of ISPs doing strange things to Internet traffic
without telling their customers is likely to continue in
the future. EFF and many other organizations are working on
software to test ISPs for unusual (mis)behavior. However,
there are varying approaches to ISP testing and a number of
tools already in use, with many others in development.

For this complete post by EFF Staff Technologist Peter

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* EU Politicians Strike Back Against Three Strikes

The last time EFF wrote about the EU's Bono Report on the
Cultural Industries, it was to warn of a rightsholders'
hijack. Lobbying groups like IFPI were encouraging
amendments that would give a European Union stamp of
approval to ISPs filtering content, blocking sites and
cutting off Net users at the demand of the entertainment

Now the tables have turned - and the same report has become
a strong demonstration of the deep discontent in the heart
of Brussels with how far the entertainment industry wants
to impose its policies on the Internet in Europe.

As Karl Sigfrid, MP in Sweden's national parliament, notes
on his blog, this is a sharp rebuke against IFPI's demands
that Net users be cut off on the orders of rightsholders --
and current French Prime Minister Sarkozy's plans to do
just that. It's still early, but the Bono Report fight has
shown that the EU can listen to more than just the
rightsholders in this debate.

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

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* Department of Homeland Security "Blinks" and Offers Real
ID Extensions to Holdout States

Earlier this year, the Department of Homeland Security gave
the states an ultimatum: If you aren't going to implement
Real ID by May 2008, file for an extension by March 31,
2008. If you don't file for an extension, you risk having
your states' IDs rejected when your citizens try to get on
planes or enter federal buildings in May.

The DHS offered this extension option partially because the
May deadline was too tight for many states, regardless of
whether they approved or opposed Real ID. More sneakily,
however, the extension offer was also a way for the DHS to
delay a looming conflict with states that refused to
implement the destructive provisions.

A few holdout states refused to cave to the delaying
tactic. Days before the March 31st deadline, Montana and
South Carolina stood strong and stared down the agency's
threats, rejecting Real ID in letters addressed to DHS
Secretary Michael Chertoff -- but the DHS "blinked" and
responded by treating the letters as requests for
extensions instead. The agency also sparred with Maine,
eventually granting an post-deadline extension after
negotiating over some of the more isolated Real ID

For this complete post by EFF Activist Richard Esguerra:

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* EFF at the LugRadio Live Exhibition in San Francisco!

Come visit EFF at the Metreon Theater in San Francisco on
April 12 and 13 during LugRadio Live, a unique conference
powered by LugRadio, the long-running British web radio
show on Linux and open source. The conference will feature
talks from developers and entrepreneurs involved in
projects across the board -- from Banshee to Wine and
everything in between. Check out the conference schedule
for more information.

For the LugRadio Live speaker and session schedule:

For the LugRadio Live registration page:

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* Visit the EFF Booth at the O'Reilly Web 2.0 Expo in San

The Web 2.0 Expo takes place April 22 to 25 at the Moscone
Center in San Francisco, and EFF will be there! The Web 2.0
Expo "takes the pulse of the Web ecosystem and looks to its
future, training a spotlight across the Web 2.0 universe to
illuminate how the Internet Revolution is being created and
delivered." The sessions focus on vital issues facing web
innovators and entrepreneurs today: development, user
experience, open platforms, financing, and more.

Stop by the booth between sessions to chat and support EFF!

For more about the Web 2.0 Expo in San Francisco:

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* Check out EFF at Maker Faire Bay Area in May 2008!

Last year, EFF had a blast hanging out at Maker Faire, a
DIY-centric festival put together by Make Magazine and
Craft Magazine. We liked it so much that we're returning
for this year's event at the San Mateo Fairgrounds on May 3
and 4! Come to the fairgrounds to experience the endless
creativity exhibited by the do-it-yourselfers, then check
in with EFF to learn more about our latest work and pick up
some great EFF swag!

For more about Maker Faire:

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* miniLinks
The week's noteworthy news, compressed.

~ DoD Collaborating with FBI to Gain Access to Individuals'
The ACLU says the US Military is using the FBI to skirt
legal restrictions on domestic surveillance.

~ "Fusion Centers" Compile Data on Individuals
States are operating their own intelligence centers to
track citizens and analyze data. (Log-in may be required.)

~ Everything You Always Wanted to Know About Wiretapping
...but were afraid to ask.

~ The Backstory on Surveillance
The National Journal tells the story of past wiretapping
battles that set the stage for today's FISA fights.

~ Patents vs. Free Speech
The ACLU has waded into the battles over patent law,
arguing that patents on abstract ideas violate the First

~ Do Lecture Notes Infringe Prof's Copyright?
A professor argues in court that sales of student notes to
his classes are infringement.

~ Filesharing: To Fight or Accommodate?
Both music and movie industries are looking into ways to
monetize rather than crack down on filesharing.,0,739667.story

~ Nonprofit Solution to Municipal Wi-Fi?
Internet Archive founder (and EFF board member) Brewster
Kahle is bringing free wi-fi to poor communities.

~ MP3s Stored Online to Remain Private
A judge ruled that EMI could not gain access to MP3 files
stored on a music locker service.

~ Boring Home Wants Off Street View
Aaron and Christine Boring are suing Google over Street
View's invasion of their privacy.

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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	

Membership & donation queries:

General EFF, legal, policy, or online resources queries:

Reproduction of this publication in electronic media is 
encouraged. Signed articles do not necessarily represent 
the views of EFF. To reproduce signed articles 
individually, please contact the authors for their express 
Press releases and EFF announcements & articles may be 
reproduced individually at will.

Current and back issues of EFFector are available via the 
Web at:

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