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EFFector - Volume 21, Issue 5 - Action Alert: Support the House in the Last Stand Against Telecom Immunity


EFFector - Volume 21, Issue 5 - Action Alert: Support the House in the Last Stand Against Telecom Immunity

EFFector Vol. 21, No. 05  February 13, 2008

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 458th Issue of EFFector:
 * URGENT Action Alert: Support the House in the Last Stand
Against Telecom Immunity!
 * Senate Caves to Pressure - Won't Block Immunity for
Illegal Spying
 * Civil Liberties Groups Sue Homeland Security for Records
on Intrusive Questioning and Searches of U.S. Travelers
 * EFF Takes Aim at Bogus Online Gaming Patent
 * Arista v. Does 1-21: What's at Stake for the Rest of Us
 * Former DC Official Quietly Drops Lawsuit Against Online
 * President Tries to Scrap New Open Government Office
 * CNET's "Real ID vs. the States" Series Covers Looming
 * EFF Asks U.S. Senate To Protect Reexamination
Proceedings (and the Patent Busting Project)
 * Fighting for Digital Rights in Europe: Our Next Year
 * The Horrifying Dangers Of Online "Cartoon-Like Personas"
 * Come See EFF at the O'Reilly Emerging Technology
 * Support EFF at this Weekend's ShmooCon!
 * miniLinks (7): Music subscription plan sparks anti-trust
 * 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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* URGENT Action Alert: Support the House in the Last Stand
Against Telecom Immunity!

Yesterday, the Senate passed a terrible surveillance bill
granting immunity to lawbreaking telecoms, putting the
House and Senate at the brink of a face-off. Meanwhile,
telecom immunity proponents in the House have engaged in a
full-court press, pushing for immunity by any means
necessary. Show your support for the House to keep telecom
immunity out of the final bill!

On Tuesday, the Senate passed a terrible surveillance bill
that approves retroactive immunity for lawbreaking
telecoms. Despite mammoth efforts from civil liberties
advocates and concerned citizens, the deck was stacked in
favor of telecom immunity, and pressure from the
Administration prevented immunity from being stripped from
the bill. The final vote for the Dodd-Feingold amendment to
remove immunity was 31 to 67, and the final vote for the
whole surveillance bill was 68 to 29.

Recall that in November of 2007, the House passed a
surveillance bill that does not provide immunity for
lawbreaking telecoms. Because the Senate bill provides
immunity while the House bill does not, the two chambers
must resolve their differences before sending a bill to the
President. Key leaders in the House of Representatives have
begun to sound the drums for this battle against telecom
immunity, but procedural maneuvers by the administration's
allies have put the fight on the fast track. Opponents of
telecom immunity need your support at this critical
juncture. Take action and tell members of the House of
Representatives to make a last stand in the name of privacy
rights and the rule of law! No telecom immunity!

Contact your Representative now:

Only have a minute to spare? Email now:

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* Senate Caves to Pressure - Won't Block Immunity for
Illegal Spying

EFF Condemns Senate Vote, Looks to House for Leadership

Washington, D.C. - Despite the strong leadership of
senators like Chris Dodd and Russ Feingold, the Senate
failed to block provisions in a surveillance bill that
would grant immunity to phone companies that assisted the
government in illegal electronic surveillance.

The Dodd-Feingold amendment to remove immunity from the
FISA Amendments Act (FAA) failed in a 31 to 67 vote; the
Senate passed the FAA 68 to 29.

"Immunity for telecom giants that secretly assisted in the
NSA's warrantless surveillance undermines the rule of law
and the privacy of every American," said EFF Senior Staff
Attorney Kevin Bankston. "Congress should let the courts do
their job instead of helping the administration and the
phone companies avoid accountability for a half decade of
illegal domestic spying."

After the Senate passes the FAA, it will need to negotiate
with the House over differences between the FAA and the
RESTORE Act, the House's own surveillance bill passed in
November. The RESTORE Act, although far from perfect,
provides for more congressional and judicial oversight of
the Executive Branch's domestic spying than the FAA and
does not include immunity for the telephone companies.
President Bush has threatened to veto any surveillance
legislation that does not contain immunity, even as the
Protect America Act's changes to surveillance law -- which
the president has argued are critical to saving American
lives -- are set to expire on February 15th.

"It's time for Speaker Pelosi to draw a line the sand and
make clear to the president that this House of
Representatives is never going to pass any bill that
includes immunity for lawbreaking telecoms," said Bankston.
"It's time for the president to show that he cares more
about American lives than about the phone companies' bottom
lines by actually working toward a bipartisan agreement on
how to update surveillance law for the 21st century."

Senator Feinstein also offered an amendment to the Senate
bill that would have provided immunity to phone companies
if the Foreign Intelligence Surveillance Court determined
that they had a good faith, reasonable belief that the NSA
program was legal. That amendment did not pass but received
enough votes that it might be considered by the House as a
potential compromise on the immunity issue.

"Attempts by senators like Ms. Feinstein to find a
reasonable compromise on the immunity question are much
appreciated, but transferring all of the litigation to the
secretive and conservative FISA court is unnecessary,
inefficient and unwise," said Bankston. "The regular
federal courts are fully capable of handling these cases
fairly and securely."

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 government in widespread 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.

For this release:

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* Civil Liberties Groups Sue Homeland Security for Records
on Intrusive Questioning and Searches of U.S. Travelers

Information Sought in Response to Growing Complaints of
Harassment at U.S. Borders

San Francisco - The Asian Law Caucus (ALC) and Electronic
Frontier Foundation (EFF) filed suit against the U.S.
Department of Homeland Security (DHS) for denying access to
public records on the questioning and searches of travelers
at U.S. borders. Filed under the Freedom of Information
Act, the suit responds to growing complaints by U.S.
citizens and immigrants of excessive or repeated screenings
by U.S. Customs and Border Protection agents.

ALC, a San Francisco-based civil rights organization,
received more than 20 complaints from Northern California
residents last year who said they were grilled about their
families, religious practices, volunteer activities,
political beliefs, or associations when returning to the
United States from travels abroad. In addition, customs
agents examined travelers' books, business cards collected
from friends and colleagues, handwritten notes, personal
photos, laptop computer files, and cell phone directories,
and sometimes made copies of this information. When
individuals complained, they were told, "This is the
border, and you have no rights."

"When the government searches your books, peers into your
computer, and demands to know your political views, it
sends the message that free expression and privacy
disappear at our nation's doorstep," said Shirin Sinnar,
staff attorney at ALC. "The fact that so many people face
these searches and questioning every time they return to
the United States, not knowing why and unable to clear
their names, violates basic notions of fairness and due

ALC and EFF asked DHS to disclose its policies on
questioning travelers on First Amendment-protected
activities, photocopying individuals' personal papers, and
searching laptop computers and other electronic devices.
The agency failed to meet the 20-day time limit that
Congress has set for responding to public information
requests, prompting the lawsuit.

"The public has the right to know what the government's
standards are for border searches," said EFF Staff Attorney
Marcia Hofmann. "Laptops, phones, and other gadgets include
vast amounts of personal information. When will agents read
your email? When do they copy data, where is it stored, and
for how long? How will this information follow you
throughout your life? The secrecy surrounding border search
policies means that DHS has no accountability to America's

When Nabila Mango, an American citizen and San Francisco
therapist, returned from a trip to the Middle East in
December, customs agents at San Francisco International
Airport asked her to name every person she had met and
every place she had slept during her travels. They also
searched her Arabic music books, business cards, and cell
phone, and may have photocopied some of her papers.

"In my 40 years in this country, I have never felt as
vulnerable as I did during that interrogation," Mango said.
"I want to find out whether my government is keeping files
on me and other Americans based on our associations and

Amir Khan, an IT consultant from Fremont, California, and a
U.S. citizen, is stopped each time he returns to the
country. Customs officials have questioned him for a total
of more than 20 hours and have searched his laptop
computer, books, personal notebooks, and cell phone.
Despite filing several complaints, Khan has yet to receive
an explanation of why he is repeatedly singled out.

"One customs officer even told me that no matter what I do,
nothing would improve," said Khan. "Why do I have to part
with my civil liberties each time I return home?"

For a copy of the complaint:

For this release:

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* EFF Takes Aim at Bogus Online Gaming Patent

Illegitimate Patent Chills Innovation in Multi-Player
Internet Games

San Francisco - The Electronic Frontier Foundation (EFF) is
challenging a bogus online gaming patent threatening small
businesses and innovators of multi-player Internet games.

Sheldon F. Goldberg was awarded the illegitimate patent for
the "method and system of playing games on a network," and
claims to own rights in all online gaming systems that use
tournament-style play, advertising, and have real-time
updates of ladder-rankings in multi-player games. Goldberg
has used this bogus patent to coerce licensing fees from
numerous small businesses, demanding payments that are
excessive yet less than potential litigation.

In a reexamination request filed with the United States
Patent and Trademark Office (USPTO), EFF and Paul Grewal
and Brad Waugh of Day Casebeer Madrid & Batchelder show
that the technology covered by the bogus patent was used
extensively by other online gaming companies before
Goldberg made his claim.

"The Internet has allowed small businesses and individuals
seeking to develop new technologies to operate on a level
playing field with larger corporations," said EFF
Intellectual Property Fellow Emily Berger. "This equality
is threatened by those who seek to procure patents from our
government that they were never entitled to hold in the
first place."

One of the key sources of information in EFF's
reexamination request came from Netrek, one of the first
online multi-player games. Netrek primarily consists of
open-source software, and its code development has been
archived online.

"Real innovation by others suffers in light of meritless
claims like those in Mr. Goldberg's patent," said Paul
Grewal. "We are confident that the Patent Office will
carefully review the arguments we have presented in our

Students from the Cyberlaw Clinic at the Berkman Center for
Internet and Society at Harvard Law School also carried out
extensive research for the reexamination request, helping
to locate much of the critical evidence of prior use of
technologies covered by Goldberg's patent.

This reexamination request is part of EFF's Patent Busting
Project, which combats the chilling effects bad patents
have on public and consumer interests. So far, the project
has killed one patent covering a system and method of
creating digital recordings of live performances. Three
more reexaminations are underway by the USPTO due to the
Patent Busting Project's efforts.

For the full reexamination request:

For more on the Goldberg Patent:

For more on the Patent Busting Project:

For this release:

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* Arista v. Does 1-21: What's at Stake for the Rest of Us

If it wasn't bad enough that the Recording Industry
Association of America's (RIAA) lawsuits against
file-sharers are futile, unfair, and immoral, the RIAA is
also beginning to distort the law. In many of these cases,
the recording industry is urging judges to accept
controversial legal theories on the proper way to bust file
sharers. It's not clear whether this is a tactical effort
to cut legal corners to save money, or a strategic effort
to build lower court precedents for use in other cases.
Either way, these are frequently extremely unfair fights
(such as in Atlantic v. Howell, where the defendant can't
even afford a lawyer), and thus bad vehicles for making
controversial new law. The judges simply aren't hearing
both sides.

EFF is trying to do something about that.

EFF filed an amicus brief in Arista v. Does 1-21, a case
against 21 Boston University students whose identities are
being sought through a subpoena to the university. One of
the anonymous students filed a motion to quash the
subpoena, which is now pending before Judge Gertner in
Boston. EFF's brief in Arista v. Does 1-21 focuses on two
issues that have been the subject of several EFF briefs in
the past: First Amendment protection for anonymous speech
and clarifications between "distribution" and "making
available" in the filesharing context.

For the amicus brief filed by EFF in Arista v. Does 1-21:

For the EFF report "RIAA v. the People: Four Years Later":

For this complete post by EFF Senior Staff Attorney Fred
von Lohmann:

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* Former DC Official Quietly Drops Lawsuit Against Online

Last March, the government watchdog organization DCWatch
was sued for republishing reports about problems in the
city's Department of Parks and Recreation -- so EFF joined
forces with lawyers in Washington, DC, to defend the rights
of online publishers to reprint articles without fear of
crushing liability. The Internet has democratized media,
allowing small organizations like DCWatch to have a
powerful voice. If Internet forums were financially
responsible for everything people posted on them, online
publication would be the province of only the very rich and
very cautious.

The First Amendment protects the right to criticize public
officials, giving wide latitude to reporters. And Section
230 of the Communications Decency Act says that websites
can't be held liable for publishing statements written by
someone else. For both of these reasons, EFF thought that
DCWatch was clearly in the right, and it was important to
make sure it wasn't punished - or forced to pay thousands
of dollars in attorneys fees - for publishing a reporter's

The Honorable Gerald I. Fisher agreed, finding that DCWatch
was "precisely the kind of internet provider Congress
intended to protect" and was therefore immune from
liability unless Johnson could "prove that Barras ... was an
actual or an apparent agent of DCWatch." The plaintiff
agreed to drop her case against DCWatch and its operators.

The case ended without fanfare, but the result is a good
one for DCWatch and other online forums. This case has
created a new precedent in the DC Superior Court that we
hope will be helpful to other web publishers in the future.

For more about the case, Johnson v. Barras:

For this complete post by EFF Staff Attorney Marcia

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* President Tries to Scrap New Open Government Office

Just weeks after signing the OPEN Government Act, which
significantly updates the Freedom of Information Act
(FOIA), the President is attempting to single-handedly
strike a major part of the new law. The OPEN Government Act
created an ombudsman to settle problems between FOIA
requesters and federal agencies, as well as keep tabs on
how well the FOIA works in practice. Rather than put the
new office in the Department of Justice, Congress decided
that it should be part of the National Archives and Records
Administration to help maintain its independence.

It seemed that President Bush was behind this idea when he
signed the OPEN Government Act into law on December 31. His
proposed budget for 2009, however, includes a provision
that would "repeal" the ombudsman's office and shift its
funding to the Justice Department. If the President's
attempt to get rid the ombudsman is successful, it would be
tremendously unfortunate for both the public and the

EFF has joined a coalition of more than 40 organizations
asking Congress to provide funds for the ombudsmen to work
out of the National Archives as Congress intended.

For the coalition letter supporting the original intent the
OPEN Government Act:

For this complete post by EFF Staff Attorney Marcia

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* CNET's "Real ID vs. the States" Series Covers Looming

This week, CNET launched its four-part series covering Real
ID -- the dangerous federal plan to create a national ID
card that presents a massive threat to citizens' privacy,
among other critical flaws.

The REAL ID Act was signed into law in 2005 and forces
states to standardize driver's licenses in a way that turns
them into a national ID. In January 2008, the Department of
Homeland Security announced a set of standards to fulfill
the vague mandate passed by Congress but was met with
opposition from a broad stable of parties. Beyond the long
roster of privacy organizations and consumer advocates, the
House Committee on Homeland Security, Senator Patrick Leahy
(Chairman of the Senate Judiciary Committee), and a number
of other key members of Congress spoke out against the

So far, the CNET series has been comprehensive in its
coverage of the issue, describing the complicated timeline;
showing which states have assented to, wavered on, and
bravely opposed the costly federal mandate; and depicting
the chaos facing travelers and citizens across the country.

For this post:

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* EFF Asks U.S. Senate To Protect Reexamination Proceedings
(and the Patent Busting Project)

EFF recently submitted a letter to Senators Leahy and
Specter calling their attention to a portion of the Draft
Judiciary Committee Report of the Patent Reform Act of 2007
that has the potential to kill EFF's Patent Busting

A footnote in the draft committee report explains proposed
changes to the current patent review system -- but the
proposal is an inadequate substitute for reexamination
because it creates a limited time frame for organizations
like EFF to question the validity of issued patents and
suggests that patent challenges can only come from those
who come to economic harm from the patent.

To be clear, EFF supports the Patent Reform Act generally
and the creation of a post-grant review procedure, but this
should not mean the elimination of key systems that help to
meet the public's needs. The public has a right to defend
itself against patents that should never have been granted,
and organizations like EFF exist to assist in this process.
Reexamination proceedings are essential for us to continue
this work.

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

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* Fighting for Digital Rights in Europe: Our Next Year

It's been almost a year since EFF opened an office in
Brussels and focused our attention on political lobbying in
the heart of the European Union. In that time, we've
learned a great deal about how policies become EC law and
how decisions get made in the EU.

We certainly hit the ground running: together with the
support of over 10,000 Europeans and other groups, we
immediately found ourselves explaining in the European
Parliament and Council the collateral damage to consumers,
libraries, and the technology sector that would have been
caused by criminalizing all IP infringement via IPRED2. We
shined a bright light on the (so far unsuccessful)
entertainment industry efforts to force through a copyright
term extension on sound recordings by slipping it into a
committee report. And we articulated the detrimental
consequences for European citizens' privacy, creativity and
freedom of expression of mandating ISPs to filter Internet
communications, as proposed by the major music and film
industries' lobbyists.

But after a year in Europe concentrating on direct lobbying
of MEPs in Brussels, we've realized that it's not enough to
catch bad policy as it enters the final stages of becoming
European Community law. Protecting digital rights requires
both well-informed policy-makers and informed and empowered
citizens. Defending privacy, and preserving space for the
full possibilities of innovation, requires policy debates
in a wide range of public spaces.

So this year we'll be moving away from a focus on Brussels
lawmaking and broadening the focus of our European work.
We'll concentrate on what EFF does best: grassroots
advocacy and activism with our European members, working
with like-minded groups on policy campaigns and submissions
on common agendas, and offering activism assistance and
tech policy analysis and resources for the consumers,
artists and innovators who regularly contact us asking for
help or advice.

With this shift of emphasis come some personnel changes.
Erik Josefsson, EFF European Affairs Coordinator in our
Brussels office, will be leaving us at the end of April,
and we'll be closing our office in Brussels. Joining our
international team is Eddan Katz, formerly the Executive
Director of the Yale Information Society Project, whose
tremendous work has provided unprecedented insights into
the impact of intellectual property policy in developing
countries and advanced the global Access to Knowledge (A2K)

If you'd like to know more about our 2008 plans - or give
us suggestions as to how EFF's international team can work
best in Europe and around the world - Eddan and Erik will
be available at FOSDEM in Brussels, where they will talk
about EFF's active campaigns in Europe and discuss upcoming
policy issues. EFF invites you to join us for a
pre-conference party early on Friday February 22nd at our
Brussels Office for food, drinks and good company. Please
RSVP to:

EFF remains committed to our international program and
looks forward to continuing our important work with NGOs on
the ground in Europe and elsewhere.

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

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* The Horrifying Dangers Of Online "Cartoon-Like Personas"

"Spies' Battleground Turns Virtual," proclaims a headline
in Wednesday's Washington Post. The headline alone would
raise concerns -- after decades of electronic surveillance,
what exactly is it about US spies' work that has suddenly
turned virtual? But this turns out to be only the first of
the many falsehoods, baseless assertions and lame
misperceptions that comprise the Intelligence Advanced
Research Projects Activity's new fearmongering paper on the
dangers of unmonitored civilian communication in popular
new environments like Second Life.

Online virtual worlds have of course existed for close to
two decades -- the first, LambdaMOO, started in 1990. But to
view these as a security threat is ludicrous; they allow no
more private communication than a standard website or
chat-room. We're sorry to shatter IARPA's illusions, but
the recent arrival of 3-D graphics and a mass audience
hasn't enhanced their ability to harbor terrorists in any
meaningful way.

Instead of providing useful insight into the nature of
security in a networked world, the IARPA paper only serves
to emphasize the US federal intelligence complex's
pervasive belief that it's both possible and desirable to
implement pantopticon-style "total information awareness".
In these agencies' view, any unmonitored communication is a
potential crime. It's the same deluded perspective that's
behind the NSA's recent illegal surveillance of our phone

It's always been hard to take this idea seriously -- but its
proponents are not doing themselves any favors by waxing
hysterical about the dangers of 3-D graphics and
"cartoon-like personas."

For the Washington Post article "Spies' Battleground Turns
Virtual" (log-in may be required):

For this complete post:

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 * Come See EFF at the O'Reilly Emerging Technology

Heading to San Diego for the O'Reilly Emerging Technology
Conference (ETech) in March?  Plan to catch EFF's "On A
Brighter Note..." panel, where EFF lawyers and activists
will put on their rose-tinted spectacles and describe our
best case scenarios: near-future technology that will help
you defend your rights, real world policy initiatives that
could help save the Net, and techniques and tricks that you
can bake into your work now that will help preserve all our
freedoms, for now and for good. Also, don't forget to visit
our booth and grab some EFF swag during exhibit hours.

Also, plan to check out EFF's Pioneer Awards ceremony
on March 4, sponsored by TCHO, "a new kind of chocolate
company for a new generation of chocolate enthusiasts."
Brought to the world by Wired co-founder Louis Rossetto and
legendary chocolatier Timothy Childs, himself a former
technologist, their goal is to make obsessively good dark
chocolate, where Silicon Valley start-up meets San
Francisco food culture.

The O'Reilly Emerging Technology Conference (ETech) takes
place March 3-6 in San Diego, CA. ETech hones in on the
ideas, projects, and technologies that the alpha geeks are
thinking about, hacking on, and inventing right now. From
robotics, health care, and space travel to gaming, finance,
and art, ETech explores promising technologies that are
influencing everyday life and inspiring the future.

The good folks at O'Reilly are offering a discount to
EFFector readers; enter code "et08eff" when you register
online to save 20%!

For more about ETech:

For more information about TCHO:

For more about the 17th Annual EFF Pioneer Awards:

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* Support EFF at this Weekend's ShmooCon!

Going to ShmooCon? Donate during the T-shirt Charity Drive
and support EFF! Charitable attendees pay to receive a
shirt and a poker chip to give to a charity of choice. On
the last day of the conference, SchmooCon organizers will
convert the chips into monetary donations for your favorite

ShmooCon is an annual East coast hacker convention
hell-bent on offering three days of an interesting
atmosphere for demonstrating technology exploitation,
inventive software & hardware solutions, and open
discussions of critical infosec issues.

For more about ShmooCon:

For more about the ShmooCon contests and events:

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* miniLinks
The week's noteworthy news, compressed.

~ Music subscription plan sparks anti-trust investigation
The Department of Justice thinks Universal's plan to offer
a music subscription service might be a monopoly.,,2254774,00.html

~ Three strikes and you're out (of the Internet)
Filesharers trading unauthorized content may lose Internet
access in proposals circulated in the UK.

~ Senator wants to limit NFL copyright restrictions
Arlen Specter wants an exception for churches for the NFL's
prohibition on public display of the Super Bowl.

~ Are social networking sites safe after all?
A new survey finds social networking sites are safer for
children than other types of Internet communication.,25642,23169075-5014111,00.html

~ Court protects blogger's anonymity
An anonymous blogger accused of defamation does not have to
reveal his or her identity, a California appeals court

~ Facebook -- Can you ever leave?
Some users report being unable to remove their profiles
from Facebook. (log-in may be required)

~ Leave no trace? Not on the Internet.
A journalist tries to live anonymously for a week and finds
is may not be possible.

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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:

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Press releases and EFF announcements & articles may be 
reproduced individually at will.

Current and back issues of EFFector are available via the 
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