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EFFector - Volume 21, Issue 7 - EFF, ACLU Move to Intervene in Wikileaks Case

EFFector Vol. 21, No. 07  February 28, 2008  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 460th Issue of EFFector:
 * EFF, ACLU Move to Intervene in Wikileaks Case
 * EFF Lawsuit Demands Records of Contacts Between Former
Justice Department Official and Google
 * Embedded Video and Your Privacy
 * FISA News and Updates
 * Google Gets Healthy
 * RIAA File-Sharing Complaint Fails to Support Default
Judgment
 * CopyrightHistory.org: Copyright Before 1900
 * Adobe Pushes DRM for Flash
 * See EFF at the O'Reilly Emerging Technology
Conference and Join us for the Pioneer Awards on March 4!
 * EFF at Plutopia! SXSW Interactive Gathering of Tribes
 * miniLinks (7): Scare Tactics on President's Spying
Powers
 * Administrivia

For more information on EFF activities & alerts:
 http://www.eff.org/

Make a donation and become an EFF member today!
 http://eff.org/support/

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 http://action.eff.org/site/Ecard?ecard_id=1061

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

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* EFF, ACLU Move to Intervene in Wikileaks Case

Domain Name Shutdown Harms First Amendment Right to Access
Information

San Francisco - The Electronic Frontier Foundation (EFF),
the American Civil Liberties Union (ACLU), and the American
Civil Liberties Union Foundation of Northern California
(ACLU-Northern California) Tuesday filed a motion to
intervene in a lawsuit where a federal judge ordered the
disabling of one of the domain names associated with
"Wikileaks," a website designed to give whistleblowers a
forum for posting materials of public concern.

In early February, Swiss bank Julius Baer filed suit in
federal district court against Wikileaks for hosting 14
allegedly leaked documents regarding personal banking
transactions of Julius Baer customers. Also sued was
Wikileaks' domain name registrar, Dynadot LLC. On February
15, following a stipulation between Julius Baer and
Dynadot, the court issued a permanent injunction, disabling
the wikileaks.org domain name and preventing that domain
name from being transferred to any other registrar.

"Dynadot's private agreement to disable access to its
customer's domain name -- and the court's endorsement of
that agreement -- raise serious First Amendment concerns,"
said EFF Senior Staff Attorney Matt Zimmerman. "This
unwarranted injunction should remind everyone who hosts
critical information on the Web that such information may
only remain accessible as long as your service provider or
registrar is willing to stand up for you against obviously
overreaching legal attacks."

Wikileaks permits third parties to post corporate and
government documents that they believe expose wrongdoing.
For example, in the past year individuals have posted
materials documenting alleged human rights abuses in China
and political corruption in Kenya. The court's order
effectively prevents readers who are only familiar with
Wikileaks through the wikileaks.org domain name from
accessing any material on the site.

"Julius Baer's private dispute regarding a former
employee's alleged violation of a confidentiality agreement
does not warrant this attempt to block access to all
material hosted on Wikileaks," said Zimmerman. "The First
Amendment rights of readers who have a legitimate interest
in the materials posted on the website simply cannot be
treated as acceptable collateral damage to the bank's
claims."

In the papers filed Tuesday, the intervenors -- including
EFF, the ACLU, the Project on Government Oversight (POGO),
and Wikileaks user Jordan McCorkle -- asked the court for
permission to intervene in order to dissolve the injunction
disabling the wikileaks.org domain name. The papers were
filed in consultation with and on behalf of the intervenors
by Steven Mayer of the law firm of Howard Rice Nemerovski
Canady Falk & Rabkin. Other attorneys on the case include
Christopher Kao and Shaudy Danaye-Elmi of Howard Rice;
Zimmerman, Cindy Cohn, and Kurt Opsahl of EFF; and Aden
Fine and Ann Brick of the ACLU and ACLU-Northern
California, respectively.

At 9:00 a.m. on Friday, February 29, a federal judge in San
Francisco will hear arguments regarding a related issue:
whether to extend a temporary restraining order aimed at
preventing the further distribution of the 14 disputed
Julius Baer documents. A hearing to address Tuesday's
motion to intervene and subsequent motion to dissolve the
domain name permanent injunction has not yet been
scheduled.

Attention EFF members: If you use wikileaks.org, please
send us your stories. We'd like to gather a few more to
tell to the court if that's needed in the court case. You
don't need to be identified (that's your choice), but you
need to be an EFF member. We're especially interested in
stories from folks who have used wikileaks.org for
something unrelated to the Julius Baer bank documents.
Email to: wikileaks-stories@eff.org

For the full motion to intervene:
http://www.eff.org/files/filenode/motiontointervene.pdf

For this release:
http://www.eff.org/press/archives/2008/02/26-0

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EFF Lawsuit Demands Records of Contacts Between Former
Justice Department Official and Google

DOJ's Top Privacy Lawyer Left Government Post for Job with
Online Giant

Washington, D.C. - The Electronic Frontier Foundation (EFF)
filed suit against the Department of Justice (DOJ) this
week, demanding information about communications between
the DOJ's former top privacy official and Google, the
official's current employer.

Jane C. Horvath was named the DOJ's first Chief Privacy and
Civil Liberties Officer in February of 2006. At that time,
Google was fighting a massive DOJ subpoena asking for the
text of every query entered into the search engine over a
one-week period. The DOJ request -- part of a court battle
over the constitutionality of a law regulating adult
materials on the Internet -- ignited a national debate
about Internet privacy.

The DOJ later scaled back its request, and a judge
eventually allowed access to only 5000 random Google search
queries. In a subsequent news article, Horvath was publicly
critical of the DOJ's initial subpoena, saying she had
privacy concerns about the massive request for information.
Horvath's new job as Google's Senior Privacy Counsel was
announced in August of 2007.

EFF asked the DOJ for information about communications
between Horvath and Google with a Freedom of Information
Act (FOIA) request as Horvath prepared to leave the agency,
but the DOJ has not responded to the request more than six
months after it was submitted.

"Google has an unprecedented ability to collect and retain
very personal information about millions of Americans, and
the DOJ and other law enforcement agencies have developed a
huge appetite for that information," said EFF Senior
Counsel David Sobel. "We want to know what discussions
DOJ's top privacy lawyer had with Google before leaving her
government position to join the company."

EFF's suit demands records of all correspondence, email, or
other communications between Horvath and Google, and asks
the court to order the DOJ to immediately process the
documents for release.

This FOIA lawsuit is part of EFF's FLAG Project, which uses
FOIA requests and litigation to expose the government's
expanding use of technologies to invade privacy. Previous
EFF FOIA requests have uncovered misuse of National
Security Letters (NSLs) by the FBI, as well as improper FBI
access to email from an entire computer network.

For the full complaint against the DOJ:
http://www.eff.org/files/filenode/doj_google/foia_complaint_filed.pdf

For more on EFF's FLAG Project:
http://www.eff.org/issues/foia

For this release:
http://www.eff.org/press/archives/2008/02/26

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* Embedded Video and Your Privacy

EFF has recently started embedding video from YouTube and
elsewhere into Deeplinks and other areas of EFF.org. This
posed a challenge: On one hand, embedded video is an
important tool that we want to be able to use. But, on the
other hand, embedded video has worrisome privacy
implications that we thought we should do something about.

So, we developed a script called "MyTube" to protect your
privacy while browsing and viewing embedded videos on
EFF.org. It prevents YouTube.com (and other third-party
video-hosts) from knowing that you've been to EFF.org or
reading Deeplinks unless you specifically click to watch
the video.

As web capabilities broaden, it's important to keep an eye
on the unexpected privacy implications. Increasingly,
loading a website or even using a desktop application can
send information to multiple third-parties without the
users' knowledge or consent. EFF encourages the web
community to help us find ways to make these information
leaks transparent and controllable for the average user.

For examples of the script in action:
http://www.eff.org/pages/UGC-test-suite

For this complete post from EFF Staff Technologist Seth
Schoen:
http://www.eff.org/deeplinks/2008/02/embedded-video-and-your-privacy

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* FISA News and Updates

The battle against telecom immunity continues in Washington
DC, with a fear-mongering press blitz from the
Administration and other supporters of immunity for
lawbreaking telecoms.

EFF Senior Staff Attorney Kurt Opsahl counters some of the
many myths delivered by the White House Press Secretary
Dana Perino during a recent briefing:
http://www.eff.org/deeplinks/2008/02/myth-facts-about-retroactive-immunity-and-attorneys

EFF Designer/Activist Hugh D'Andrade documents the "slips
and stalls" perpetrated by proponents of immunity, whose
yowling arguments for immunizing the telecoms are later
contradicted by facts that they must acknowledge:
http://www.eff.org/deeplinks/2008/02/republican-slips-and-stalls

And this past week, four former senior level intelligence
officials wrote to Director of National Intelligence Mike
McConnell to challenge recent statements on telecom
immunity and its relationship to surveillance and security:
http://www.eff.org/deeplinks/2008/02/four-former-intelligence-professionals-write-dni-mcconnell

For the text of the letter from the former intelligence
officials to DNI Mike McConnell:
http://www.nsnetwork.org/node/253

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* Google Gets Healthy

In its endless quest to wring value from users' personal
data, Google is branching out into health records. The
Internet search giant has announced a pilot project that
would allow users to combine all their personal health
records (PHRs) -- information about prescriptions,
allergies, injuries, health history etc -- into a single
new service that would be as accessible as a Gmail account.

The convenience factor is clear -- the new service would
make it easier for people who may have multiple health
providers to make sure their doctors all have the same
information. And for people who seek medical attention
while traveling, the ability to bypass their HMO's
byzantine bureaucracy in order to have a prescription
filled might be welcome.

But how sure can you be that your PHRs remain private and
secure once Google or some other company has them in its
vast and constantly growing database? Who has access to
that data, and what laws exist to protect it?

For the World Privacy Forum's recently published analysis
about PHRs:
http://www.worldprivacyforum.org/personal_health_records.html

For the AP article previewing the Google PHR service:
http://ap.google.com/article/ALeqM5iSiytvdRjss9I7Yq3uCwrwttbQxQD8UUGCE80

For this complete post:
http://www.eff.org/deeplinks/2008/02/google-gets-healthy

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* RIAA File-Sharing Complaint Fails to Support Default
Judgment

The recording industry's litigation campaign against
individual file-sharers suffered a setback earlier this
month when a federal judge ruled in Atlantic v. Brennan
that the boilerplate complaint used by the recording
industry in these cases would not support a default
judgment.

Default judgments may be entered against defendants who
never respond to a lawsuit, but only if the complaint lives
up to certain minimum standards. In ruling that the
recording industry's complaint fell short of this mark, the
judge specifically rejected the recording industry's
"making available" arguments, thereby endorsing the
argument that EFF recently made in Atlantic v. Howell.

It remains to be seen whether the recording industry has
the particularized evidence necessary to back up their
boilerplate complaints. But this ruling suggests that
courts are not prepared to simply award default judgments
worth tens of thousands of dollars against individuals
based on a piece of paper backed by no evidence.

For Ars Technica's summary of the legal standards involved
in the ruling:
http://arstechnica.com/news.ars/post/20080225-riaa-fails-again-to-get-default-judgment-in-uncontested-case.html

For the judge's ruling on the RIAA's motion for default
judgment:
http://www.eff.org/files/atlantic_brennan_080213OrderDenyDefaultJudgment.pdf

For this complete post by EFF Senior Staff Attorney Fred
von Lohmann:
http://www.eff.org/deeplinks/2008/02/riaa-file-sharing-complaint-fails-support-default-judgment

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* CopyrightHistory.org: Copyright Before 1900

Copyright geeks might be interested in an impressive
historical project underway in the UK, sponsored by the
Arts and Humanities Research Council. Housed at
CopyrightHistory.org, the project is self-explanatorily
entitled "Primary Sources on Copyright (1450-1900)." The
project has sought to create a digital resource covering
the history of copyright, from the invention of the
printing press to the Berne Convention.

For more about CopyrightHistory.org: 
http://www.copyrighthistory.org/

For more about the March 2008 CopyrightHistory.org
conference taking place in London:
http://www.copyrighthistory.org/news/article.php?section=26&article=584

For this post:
http://www.eff.org/deeplinks/2008/02/thats-public-domain-copyright-1900

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* Adobe Pushes DRM for Flash

The immense popularity of sites like YouTube has
unexpectedly turned Flash Video (FLV) into one of the de
facto standards for Internet video. The proliferation of
sites using FLV has been a boon for remix culture, as
creators made their own versions of posted videos. And thus
far there has been no widespread DRM standard for Flash or
Flash Video formats; indeed, most sites that use these
formats simply serve standalone, unencrypted files via
ordinary web servers.

Now Adobe, which controls Flash and Flash Video, is trying
to change that with the introduction of DRM restrictions in
version 9 of its Flash Player and version 3 of its Flash
Media Server software. Instead of an ordinary web download,
these programs can use a proprietary, secret Adobe protocol
to talk to each other, encrypting the communication and
locking out non-Adobe software players and video tools. We
imagine that Adobe has no illusions that this will stop
copyright infringement -- any more than dozens of other DRM
systems have done so -- but the introduction of encryption
does give Adobe and its customers a powerful new legal
weapon against competitors and ordinary users through the
Digital Millennium Copyright Act (DMCA).

For more about Gnash, the GNU Flash movie player that may
be threatened by the new DRM scheme:
http://www.gnashdev.org/

For this complete post by EFF Staff Technologist Seth
Schoen:
http://www.eff.org/deeplinks/2008/02/adobe-pushes-drm-flash

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* See EFF at the O'Reilly Emerging Technology
Conference and Join us for the Pioneer Awards on March 4!

Heading to San Diego for the O'Reilly Emerging Technology
Conference (ETech) next week? 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.

And if you use code "et08eff" you will save a juicy 30% off
registration fees!
http://www.oreilly.com/go/et3cheff

While there, join EFF in honoring Mitchell Baker and the
Mozilla Foundation, Michael Geist, and Mark Klein at the
17th annual Pioneer Awards! Michael Robertson, the Founder
and CEO of MP3.com, Linspire, MP3tunes, and Gizmo5, will
keynote the ceremony with his talk: "What to Expect When
You're Expecting... To Be Sued".

Awarded every year since 1991, the Pioneer Awards recognize
leaders who are extending freedom and innovation on the
electronic frontier. This year, the Pioneer Awards ceremony
will be held in conjunction with ETech at the San Diego
Marriott Hotel and Marina on Tuesday March 4th, 2008. The
event begins at 7:15 p.m. The event is open to the public.

Tickets to the Pioneer Awards ceremony and Michael
Robertson's keynote address are $35. You can buy your
ticket in advance at:
http://secure.eff.org/pioneerfundraiser

TCHO is the Platinum Sponsor for the 2008 Pioneer Awards
ceremony. Founded by Wired co-founder Louis Rossetto and
legendary chocolatier and former technologist Timothy
Childs, TCHO is "a new chocolate company for a new
generation of chocolate enthusiasts." TCHO will sample a
"beta release" of their dark chocolate during the awards
ceremony. Attendees are invited to taste two different
formulas and vote for a favorite. Feedback directly
influences the formula used for the national release bar.
Learn more about TCHO at: http://www.tcho.com

Bronze sponsors of the 2008 Pioneer Awards ceremony
include: MOG, Three Rings, JibJab, Atomic PR, Barracuda
Networks.

For more about ETech:
http://conferences.oreillynet.com/

For more information about TCHO:
http://tcho.com/

For more about the 17th Annual EFF Pioneer Awards:
http://www.eff.org/awards/pioneer

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* EFF at Plutopia! SXSW Interactive Gathering of Tribes

Going to SXSW Interactive? Stop by the Plutopia party on
March 10, 2008, and hang out with EFF! The theme of this
year's gathering is "convergence, sustainability, futurism,
and art."

Author Bill McKibben will be delivering a talk about
sustainability and local-scale enterprise; and geek
comedian Heather Gold will be making a presentation
alongside "Internet rockstar Jonathan Coulton, queer
novelist Michelle Tea, twitter founder Ev Williams, Look
Shiny's Nick Douglas, the other Internet rockstar Ben
Brown, gamemaker Jane McGonigal, surprise guests and you."

The event takes place on Monday March 10, 2008, at Scholz
Garten, 1607 San Jacinto Blvd., Austin. It's $10 at the
door or free with a costume and/or your SXSWi badge.

For more about Plutopia:
http://plutopia.org

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* miniLinks
The week's noteworthy news, compressed.

~ Scare tactics on president's spying powers
Are White House allies playing election-year hardball on
eavesdropping?
http://www.newsweek.com/id/116683

~ Is Microsoft embracing "open source"?
A closer look at Microsoft's patent pledge shows their
plans are not so "open" after all.
http://www.softwarefreedom.org/perspectives/2006/ms-patent-promise/

~ Network Solutions sued over domain name policy
Network Solutions' policy of automatically registering
searched domain names has sparked a class-action lawsuit.
http://www.washingtonpost.com/wp-dyn/content/article/2008/02/26/AR2008022601062.html

~ Spying on customers was commonplace at Wisconsin utility
company
Employees of WE Energies routinely snooped on customers'
private data.
http://news.yahoo.com/s/ap/20080223/ap_on_hi_te/snooping_workers

~ RIAA marks one year of college threat-letter drive
Thousands of individuals have been dragged into court, but
artists are *still* waiting to get paid.
http://www.news.com/8301-10784_3-9876121-7.html

~ Cell phone recording = wiretapping?
A do-gooder who recorded abusive police officers was
himself arrested under a controversial 'wiretapping' law
http://thephoenix.com/article_ektid56680.aspx

~ AT&T billboard is "liberated"
The Billboard Liberation Front has corrected an billboard
so that it tells the truth about AT&T cooperation with the
NSA.
http://www.boingboing.net/2008/02/28/billboard-liberation-1.html

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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)
 http://www.eff.org/	

Editor:
Richard Esguerra, EFF Activist
 richard@eff.org	

Membership & donation queries:
 membership@eff.org

General EFF, legal, policy, or online resources queries:
 information@eff.org

Reproduction of this publication in electronic media is 
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the views of EFF. To reproduce signed articles 
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permission.
Press releases and EFF announcements & articles may be 
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Current and back issues of EFFector are available via the 
Web at: http://www.eff.org/effector/
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