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EFFector - Volume 21, Issue 9 - EFF Applauds House Passage of Surveillance Bill with No Telecom Immunity

EFFector Vol. 21, No. 09  March 14, 2008

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 462nd Issue of EFFector:
 * EFF Applauds House Passage of Surveillance Bill with No
Telecom Immunity
 * FISA News and Updates
 * Patent Office Grants EFF's Request for Reexamination of
Online Gaming Patent
 * Reexamination Improves Patent Quality: A Look at the
Latest USPTO Filing Data
 * A Free Speech Double Whammy: Flawed Anti-Phishing Bill
Would Dilute Trademark Fair Use and Anonymity Protections
 * Real ID Rebellion Roundup
 * Blogging WIPO: The New Development Agenda
 * miniLinks (8): Analysis: Firm Stance on FISA Pays Big
for Democrats
 * Administrivia

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

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* EFF Applauds House Passage of Surveillance Bill with No
Telecom Immunity

Bill Would Allow Spying Cases to Proceed Fairly and

Washington, D.C. - This morning the House of
Representatives passed a compromise surveillance bill that
does not include retroactive immunity for phone companies
alleged to have assisted in the NSA's warrantless
wiretapping program. The bill would allow lawsuits like the
Electronic Frontier Foundation's case against AT&T to
proceed while providing specific security procedures
allowing the telecom giants to defend themselves in court.

The House bill succeeded 213 to 197 despite the president's
threat to veto any bill that does not include immunity.

"We applaud the House for refusing to grant amnesty to
lawbreaking telecoms, and for passing a bill that would
allow our lawsuit against AT&T to proceed fairly and
securely," said Electronic Frontier Foundation (EFF) Senior
Staff Attorney Kevin Bankston. "Amnesty proponents have
been claiming on the Hill for months that phone companies
like AT&T had a good faith belief that the NSA program was
legal. Under this bill, the companies could do what they
should have been able to do all along: tell that story to a

The Senate is expected to consider the House bill when it
returns from recess on Monday, March 31. House and Senate
staff are expected to spend much of the break negotiating
over differences between the new House bill and a previous
Senate bill that includes immunity provisions.

"This newly-passed House bill represents a true compromise
on the amnesty issue: customers whose privacy was violated
would get their day in court, while the companies would be
allowed to defend themselves despite the Administration's
broad demands for secrecy," said EFF Legal Director Cindy
Cohn. "We look forward to assisting the Senate in its
consideration of this compromise solution, which EFF
believes is the only reasonable response to the White
House's attempt to evade court review of its illegal spying
program and the phone companies' collaboration in it."

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
widespread domestic surveillance. The Hepting case is the
leading case 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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* FISA News and Updates 

On March 10, the Wall Street Journal published an important
article confirming key elements of EFF's suit against AT&T.
Officials quoted in the article acknowledge a massive
domestic spying operation run by the NSA and confirm that
the program includes the wholesale copying of entire data
streams by the telecoms, as well as the existence of a
"domestic network of hubs" to coordinate the spying in
different cities:

The Wall Street Journal article also demonstrates that the
Administration is relying upon erroneous views of
electronic communications privacy law, including some that
contradict the Department of Justice's own published
interpretations.  Our "law-checking report" confirms that,
contrary to the NSA's claim, information like email subject
lines, Internet searches and cell phone location
information all require a warrant under law:

Among the flurry of this week's action on FISA, the House
Judiciary Committee issued a strong statement dismantling
flawed pro-immunity arguments and calling for deeper
investigation of warrantless surveillance:

Thirty-four advocacy groups urged Congress to hold fast
against telecom immunity in light of a new whistleblower's
allegations of an unsecured gateway to wireless
communications at a major telecom:

Tash Hepting, the lead plaintiff in EFF's class-action suit
against AT&T, spoke with NPR and the Wall Street Journal
about his role in opposing warrantless surveillance and
about how his father's experience of being surveilled as a
ham radio enthusiast moved him to action:

BoingBoing TV published an interview with EFF Legal
Director Cindy Cohn and AT&T Whistleblower Mark Klein:

And last week, Mark Klein was presented with an EFF Pioneer
Award after being nominated by members of the public and
chosen by a panel of judges. At the ceremony, EFF Legal
Director Cindy Cohn delivered an inspiring introduction for
a "bona fide hero":

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* Patent Office Grants EFF's Request for Reexamination of
Online Gaming Patent

Fifth Successful Result for Patent Busting Project

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

Sheldon F. Goldberg was awarded the illegitimate patent for
online gaming systems that use tournament-style play,
advertising, and real-time updates of ladder-rankings in
multi-player games. Goldberg has used this bogus patent to
coerce licensing fees from numerous small businesses.

In the reexamination request, EFF along with Paul Grewal
and Brad Waugh of Day Casebeer Madrid & Batchelder show
that the technology covered by the Goldberg patent had been
widely disseminated in the public domain for years before
Goldberg made his claim. The Patent Office took quick
action on the request, recognizing this substantial new
question of patentability less than a month after the
request was filed.

"The patent process was designed to encourage invention,
investment, and disclosure and was not meant to be used as
a tool to threaten legitimate businesses," said EFF
Intellectual Property Fellow Emily Berger. "Reexamination
proceedings like these are essential in protecting the
public from patents that should never have been granted in
the first place."

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 bogus patent covering a system and method of
creating digital recordings of live performances. Four more
reexaminations, including this one, are under review by the
USPTO due to the Patent Busting Project's efforts.

"Undeserved patents cause significant harm to innovation
and competition in the information age," said Paul Grewal.
"We are pleased that the PTO recognized the substantial
questions of patentability raised in EFF's request and look
forward to the PTO's ultimate decision on the merits."

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
locate much of the critical evidence of prior use of
technologies covered by Goldberg's patent. Members of the
Netrek online gaming community also provided technical
analysis and legal declarations that figured prominently in
the PTO's decision to grant EFF's reexamination request.

For the full reexamination order:

For more on the Patent-Busting Project:

For this release:

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* Reexamination Improves Patent Quality: A Look at the
Latest USPTO Filing Data

The latest statistics from the United States Patent and
Trademark Office (USPTO) prove what EFF has been saying for
years: third party challenges to patent validity provide an
invaluable check on improper and overbroad patents.
According to these records, in the 25 years since ex parte
reexamination became possible, the PTO has granted the vast
majority of reexamination requests, finding that third
party challenges raised substantial new questions of
patentability. Thus, rather than overburdening the
examiners, reexamination requests are helping the PTO
separate the wheat from the chaff, fix mistakes and meet
its stated goal: to promote innovation.

Unfortunately, the success of ex parte reexamination
proceedings is being overlooked in the latest draft of
S.1145, the Patent Reform Act of 2007, which suggests
replacing the current reexamination processes with an
inadequate form of post-grant review and places undue
restrictions on third party participation. This portion of
the Act could essentially eliminate important public
interest projects, such as EFF's Patent Busting Project,
which use inter and ex parte reexamination proceedings to
challenge patents that endanger the public domain.

Write to your Senator about the Patent Reform Act and
preserving third party reexamination:

For this complete post by EFF Intellectual Property Fellow
Emily Berger (coauthored by Policy Intern Raeanne Young):

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* A Free Speech Double Whammy: Flawed Anti-Phishing Bill
Would Dilute Trademark Fair Use and Anonymity Protections

Congress is contemplating S. 2661, a so-called
'Anti-Phishing Consumer Protection Act' (APCPA) that takes
an odd view of consumer protection. The bill starts off
relatively inoffensively by prohibiting the use of false
information to solicit identifying data from a computer.
But then it goes on to forbid the use of brand names in
domain names and the use of another's domain name in
emails, on websites, or in web ads; and the bill text does
little to protect important noncommercial, periodic and
comparative uses.

To make matters worse, another provision allows any Tom,
Dick or Harry to force domain name registrars to reveal a
customer's personally identifying information by simply
sending an email alleging that the customer has violated
the new law. No need to comply with the traditional legal
niceties of, say, a filed lawsuit or a subpoena that might
permit the customer to go to court to protect her
anonymity. A mere allegation is enough.

Sure, Phishing is a problem. But you don't solve it by
rewriting trademark law and depriving lawful speakers of
the chance to keep their identities private. This
ill-conceived legislation should be stopped in its tracks.

For the full text of the bill:

For this complete post by EFF Staff Attorney Corynne

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* Real ID Rebellion Roundup

This week, Pedro Nava, a prominent California
Assemblymember, introduced a non-binding resolution that
asks California's members of Congress to oppose Real ID,
the unfunded federal mandate to turn driver's licenses into
national ID cards. It highlights the state's growing
opposition to Real ID, as legislators and citizens begin to
realize the astronomical cost and catastrophic privacy
implications of participating in the federal program.

The California resolution comes hot on the heels of a
widely-heard NPR interview with Brian Schweitzer, the
governor of Montana, who outlines his state's staunch
opposition to the Real ID mandates. In the interview, he
cites such concerns as state sovereignty and the absence of
systems to actually facilitate Real ID. Also in the
interview, Gov. Schweitzer boldly announces that his state
will call the federal government's "bluff" on the issue of
air travel -- the Department of Homeland Security has
threatened that on May 11th, states that have not embraced
Real ID will find their licensees treated differently in
regards to air travel and access to federal buildings.

Finally, Real ID opposition at the federal level features a
budget amendment sponsored by Sen. Jon Tester (D-MT) that
seeks to funnel money away from Real ID to be used to
benefit veterans instead.

For California Assemblymember Pedro Nava's release calling
for opposition to Real ID:

For the NPR interview with Gov. Brian Schweitzer:

For this post:

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* Blogging WIPO: The New Development Agenda

Last year, the World Intellectual Property Organization
(WIPO) adopted a set of 45 ground-breaking proposals on how
WIPO should reorient its operations to foster economic and
social development within its 182 Member States. The
Development Agenda proposals are intended to require WIPO
to take a broader approach to promoting creativity and
innovation, instead of focusing exclusively on maximizing
intellectual property rights.

The beginning of March featured the first meeting of the
new WIPO committee set up to implement the Development
Agenda: the Committee on Development and Intellectual
Property. It has been charged with formulating a work plan
to put development in the mainstream focus of WIPO's
operations and activities. Expectations were naturally
high. At week's end, what we can report is that there was
only small progress on concrete aspects of a work plan, and
that Member States will continue in informal open-ended
discussions between now and the next meeting of the
Committee in July.

What is more interesting, and ultimately more important, is
the procedure that governed this week's discussions about
how to craft a work plan to implement the Development
Agenda. When the WIPO General Assembly agreed to adopt the
set of 45 landmark recommendations last October, we believe
the outcome it intended was the reorientation of WIPO's
institutional culture. Unfortunately, that commitment to
change seemed less present in these recent discussions.

Let's hope that this is rectified in the informal
consultations that will take place in the next months and
that we see projects, timelines and evaluation criteria
that clearly evidence WIPO's commitment to change and
accountability at the meeting in July.

For the WIPO Development Agenda, adopted at the 2007 WIPO
General Assembly meeting:

For this complete post by EFF International Policy Director
Gwen Hinze:

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* miniLinks
The week's noteworthy news, compressed.

~ Analysis: Firm Stance on FISA Pays Big for Democrats
Confronting the President on spying powers turns out to be
a better strategy than capitulation.

~ President Weakens Spying Oversight
The Intelligence Oversight Board has been stripped of much
of its authority -- reversing reforms of the 70s.

~ P4P -- New Peer-to-Peer Tech
Verizon is looking into ways to enable better networks
rather than impede them.

~ First Fan-Financed Album to Be Released
Slicethepie raises money from fans to fund album releases.

~ Kentucky Lawmaker: Anonymous Posting Should Be Illegal
Rep. Tim Couch has filed a bill that would make it a crime
to post anonymously on the Internet.

~ Pacemakers Vulnerable to RFID Scams?
Researches have shown that private medical information can
be extracted from RFID-equipped implants.

~ Privacy Advocates Raise Concerns Over Google-DoubleClick
An EU Commission cleared the merger, but privacy concerns
were not part of the determination.

~ Humor: Diebold Accidentally Leaks 2008 Results
The Onion reports that e-voting tallies have been leaked,
revealing election results in advance.

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
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+1 415 436 9333 (voice)
+1 415 436 9993 (fax)	

Richard Esguerra, EFF Activist	

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