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February 22, 2007

EFF Asks Judge to Uphold Key Trademark Ruling

San Francisco - The Electronic Frontier Foundation (EFF) asked the U.S. 2nd Circuit Court of Appeals today to uphold an important ruling allowing anyone to purchase Google's "sponsored links" tied to trademarks, arguing that the practice is legal under trademark law and provides a vital means for online speakers to connect with audiences on the Internet.

Google's "sponsored links" feature allows customers to buy advertisements attached to certain search terms. When a Google user types those terms into the search engine, the sponsored links appear along with the search results. However, a company named Rescuecom filed a lawsuit against Google over the program, claiming that selling sponsored links for the term "Rescuecom" infringed its trademark.

In an amicus brief filed with the appeals court today, EFF argues that the sponsored links are not an infringing use, and in fact promote a vibrant public sphere by helping online speakers reach a broader audience. An example cited in the brief is that of "The Coalition of Immokalee Farmworkers," a group critical of McDonald's business practices. The coalition bought sponsored links attached to searches for "McDonald's" in order to stimulate debate and mobilize support.

"The Internet has brought together speakers of many kinds -- some competing with trademark owners, others criticizing them, still others simply referring to them while discussing other subjects or products," said EFF Staff Attorney Corynne McSherry. "Services like Google's 'sponsored links' help people with something to say reach those who might be interested in hearing it."

Rescuecom has asked the court to hold that trademark law regulates virtually any use of search keywords that are also trademarks. This would give trademark holders a legal sword to wield against critics and competitors, as well as the intermediaries upon which those critics and competitors rely to spread their message. But courts have historically taken care to ensure that trademark restrictions do not allow markholders to interfere with Constitutionally-protected free speech.

"On the Internet, trademarks aren't just identifiers. They are essential navigation tools and vehicles of expression," said EFF Staff Attorney Jason Schultz. "Quashing this speech goes against both the law and the public interest."

A judge dismissed Rescuecom's case against Google last year, but the company is appealing the decision.

For the full brief filed in Rescuecom v. Google:
http://www.eff.org/legal/cases/rescuecom_v_google/EFF_amicus.pdf

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Related Issues:
February 20, 2007

Government and AT&ampT Cannot Freeze Proceedings During Appeal

San Francisco - A federal judge today ruled that the Electronic Frontier Foundation (EFF) can go forward with elements of its class action lawsuit against AT&ampT for collaborating with the government on illegal spying in ordinary Americans -- despite the government and AT&ampT's request to freeze proceedings during an appeal.

In his ruling, U.S. District Court Judge Vaughn Walker opened the door to beginning the discovery process, allowing EFF to ask "limited and targeted" questions as long as those questions do not overlap with the issues under consideration in the 9th U.S. Circuit Court of Appeals.

"The government wanted to put this case in the deep freeze," said EFF Staff Attorney Kurt Opsahl. "Instead, the court has invited us to move forward with some targeted questions. We're glad to accept that invitation, which will allow progress while respecting the government's national security concerns."

Judge Walker also refused to implement a blanket stay on the other telecommunications surveillance cases transferred to his court. He ruled that unless the parties stipulate to a stay, then "defendants will answer or otherwise respond to the complaint" by March 29. Earlier today, Judge Walker denied requests from media groups to unseal critical evidence in the AT&ampT case.

"We're disappointed that the court did not choose to unseal all of the documents that include or refer to the evidence presented by Mark Klein and our expert, J. Scott Marcus. The government has already agreed that the evidence is neither classified nor a state secret, and is only being held under seal because of AT&ampT's weak trade secrecy claims," said Cindy Cohn, EFF's Legal Director. "Given that the privacy of millions of Americans is at stake, we strongly believe that the public would benefit from seeing this evidence for themselves."

Judge Walker did grant the media groups' request to intervene, and said he might revisit the unsealing issue at a later date.

For Judge Walker's full order:
http://www.eff.org/legal/cases/att/stayorder220.pdf

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att/

Contacts:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
February 20, 2007

Klein Declaration and Other Internal Documents to Stay Sealed for Now

San Francisco - A federal judge in San Francisco today denied requests from media groups to unseal critical evidence in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT.

EFF's suit accuses the telecom giant of collaborating with the National Security Agency (NSA) in illegal spying on millions of ordinary Americans. The sealed evidence includes a declaration by Mark Klein, a retired AT&ampT telecommunications technician, as well as several internal AT&ampT documents and portions of a declaration from EFF's expert witness. Some of the evidence was previously released in redacted form, while other evidence is still completely unavailable to the media and the public.

"We're disappointed that the court did not choose to unseal all of the documents that include or refer to the evidence presented by Mark Klein and our expert, J. Scott Marcus. The government has already agreed that the evidence is neither classified nor a state secret, and is only being held under seal because of AT&ampT's weak trade secrecy claims," said Cindy Cohn, EFF's Legal Director. "Given that the privacy of millions of Americans is at stake, we strongly believe that the public would benefit from seeing this evidence for themselves."

Today's order is in response to a December hearing on the sealing issue. U.S. District Court Judge Vaughn Walker granted the media groups' request to intervene in the case, and said that he might revisit the unsealing motion at a later date.

For Judge Walker's full order:
http://www.eff.org/legal/cases/att/order_media_unsealing.pdf

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att/

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
February 15, 2007

Discovery Communications Tries to Chill Speech with Baseless Legal Claims

San Francisco - The Electronic Frontier Foundation (EFF) warned Discovery Communications, Inc., today to cease its demands for the removal of an online template that uses humor to help people criticize the media company.

The "SpankMaker," located at http://www.spankmymarketer.com/, helps users create parodies of a controversial marketing campaign in connection with a Discovery television production. The online tool provides images from the marketing campaign and Discovery's corporate websites, and allows users to modify them with commentary.

A lawyer for Discovery has demanded that the website operator remove the template, claiming it infringes Discovery's copyright and is used to defame the company. But in a letter sent in response today, EFF outlines how the use of the images in the template is clearly a non-infringing parody. EFF also explains that the comments that offended Discovery are not libelous and that, in any event, Section 230 of the Communications Decency Act protects the creator of the SpankMaker from liability for comments written by others.

"Once again, a business is trying to use false legal claims to chill criticism," said Staff Attorney Corynne McSherry. "Fortunately, more and more, the targets of these kinds of threats are fighting back."

EFF's letter is part of its ongoing campaign to protect online free speech. Earlier this month, EFF provided legal support for environmental activists who were threatened by the Chicago Auto Show after posting an Internet parody. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character.

For EFF's response letter:
http://eff.org/legal/cases/discoverycom_v_rubinstein/response_letter.pdf

Contact:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

February 13, 2007

Judge Rescinds Injunction Against Wiki, Other Websites

New York - A U.S. District Court judge today refused Eli Lilly's request to ban a number of websites from publishing leaked documents relating to Zyprexa, Eli Lilly's top-selling drug. Although the judge rejected the First Amendment arguments made by a variety of individuals eager to publish the documents, the court concluded that "it is unlikely that the court can now effectively enforce an injunction against the Internet in its various manifestations, and it would constitute a dubious manifestation of public policy were it to attempt to do so." The order is a victory for the Electronic Frontier Foundation (EFF), which represents an anonymous individual who was previously barred by the court's earlier orders from posting links to the Zyprexa documents on the zyprexa.pbwiki.com wiki.

The Zyprexa documents were leaked from an ongoing product liability lawsuit against Eli Lilly. The internal documents allegedly show that Eli Lilly intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). The documents were the basis for a front-page story in the New York Times in December of last year, and electronic copies are readily available from a variety of Internet sources. EFF's client posted links to one set of copies on a wiki devoted to the controversy that were part of extensive, in-depth analysis from a number of citizen journalists.

"This ruling makes it clear that Eli Lilly cannot invoke any court orders in its futile efforts to censor these documents off the Internet," said EFF Staff Attorney Fred von Lohmann. "We are disappointed, however, that the judge failed to appreciate that its previous orders constituted prior restraints in violation of the First Amendment."

The court stayed its ruling for 10 days in order to permit an appeal. Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. Eli Lilly has paid more than $1.2 billion to resolve lawsuits involving Zyprexa.

For the full order:
http://eff.org/legal/cases/zyprexa/zyprexa_judgement.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
February 8, 2007

Free Speech Rights At Stake in Legal Battle Over Controversial Drug Zyprexa

Free Speech Rights At Stake in Legal Battle Over Controversial Drug Zyprexa

New York - The Electronic Frontier Foundation (EFF) told a judge Wednesday to remove the legal muzzle on citizen journalists caught up in a court battle over documents relating to the controversial prescription drug Zyprexa. EFF argues that the injunction against publication of the documents online is prior restraint on their free speech and a violation of First Amendment rights.

EFF's client posted links on a "wiki" to electronic copies of damaging internal Eli Lilly documents about Zyprexa. The documents leaked from an ongoing product liability lawsuit against Eli Lilly over Zyprexa and were the basis for a front-page story in the New York Times in December of 2006. Eli Lilly has since obtained an injunction that forbids 11 individuals and five websites from posting or linking to the documents. In a brief filed with the court Wednesday, EFF explains that this is the digital equivalent of a "stop the presses" order on individuals who were not involved in the leak. The documents remain readily available on the Internet from a variety of sources.

"The millions of patients who use Zyprexa, and their doctors, deserve access to these documents," said EFF Staff Attorney Fred von Lohmann. "The First Amendment guarantees citizen-journalists the right to publish truthful information on matters of public concern, just as it does for newspapers."

Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. According to news reports, the internal documents show that Eli Lilly intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). Eli Lilly has paid more than $1.2 billion to resolve lawsuits involving Zyprexa.

The matter has been submitted to U.S. District Court Judge Jack B. Weinstein in the Eastern District of New York. A decision is expected shortly.

For the full brief:
http://eff.org/legal/cases/zyprexa/brief_opposing_injunction.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
February 5, 2007

EFF Europe Office Opens in Brussels

San Francisco - The Electronic Frontier Foundation (EFF) opened a new office in Brussels today to work with various institutions of the European Union (EU) on innovation and digital rights, acting as a watchdog for the public interest in intellectual property and civil liberties policy initiatives that impact the European digital environment.

The new EFF Europe office, made possible by the generous support of the Open Society Institute and Mr. Mark Shuttleworth of the Shuttleworth Foundation, will allow EFF to have an increased focus on the development of EU law. EFF also plans to expand its efforts in European digital activism and looks forward to working with many groups and organizations to fight effectively for consumers' and technologists' interests. EFF's new European Affairs Coordinator, Erik Josefsson, will be an on-the-ground analyst, activist, and educator about critical intellectual property and civil liberties issues.

"In a networked world, protecting innovation and digital rights must be a global effort," Josefsson said. "We hope this new office in Brussels will increase awareness of European developments and enrich the policy debate."

Josefsson was previously the president of the Swedish chapter of Foundation for a Free Information Infrastructure (FFII.se). FFII was instrumental in defeating the proposed Software Patents Directive, which would have brought an expanded software patent scheme to Europe. Josefsson has also worked with European Digital Rights (EDRI) and other European groups in fighting against the European Parliament's adoption of the Data Retention Directive, which threatens to undo the existing pro-consumer privacy protections in Europe. In recent months, Josefsson has been part of a team of committed FFII activists opposing the proposed second Intellectual Property Rights Enforcement Directive (IPRED2), which will impose harsh criminal sanctions and prison terms for violation of intellectual property rights, stifling technical innovation and imperiling consumers if not amended.

"Europe is at the forefront of policy developments that threaten Internet users' freedom, from unwarranted copyright term extension to mandatory data retention," said EFF International Affairs Director Gwen Hinze. "We welcome the valuable European educational and activism expertise that Erik brings to EFF Europe, and we are excited about this new opportunity to represent the public interest in the formative stages of European policy development."

Josefsson will be supported in EFF's San Francisco office by Danny O'Brien, EFF's Activism Coordinator, whose past experience includes digital rights work in the United Kingdom. Josefsson will be succeeded as president of FFII Sweden by Jonas Bosson, who was one of the founders of the organization and will continue to fight new attempts to make software patents enforceable in Europe.

For more on EFF Europe:
http://www.eff.org/global/europe/

Contacts:

Danny O'Brien
Activism Coordinator
Electronic Frontier Foundation
danny@eff.org

Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
gwen@eff.org

Related Issues:
February 5, 2007

Friday Hearing on Motion to Stay Proceedings During Appeal

San Francisco - On Friday, February 9, at 2 p.m., the Electronic Frontier Foundation (EFF) will argue that lawsuits against a number of major telecommunications companies for illegally assisting the National Security Agency (NSA) in spying on millions of ordinary Americans should go forward, regardless of the government's attempt to overturn the judge's previous ruling in the 9th U.S. Circuit Court of Appeals.

The government is appealing U.S. District Court Judge Vaughn Walker's decision not to dismiss Hepting v. AT&ampT, EFF's case accusing AT&ampT of collaborating with the NSA in the illegal electronic surveillance. The government has argued that all proceedings before Judge Walker in Hepting -- and in more than 40 other NSA-related cases against additional telecommunications companies transferred to Walker's court -- should be stayed pending the outcome of that appeal.

Also Friday, the judge will hear arguments on whether motions to dismiss should be re-litigated in all of the remaining telecom surveillance cases against Verizon, MCI, Sprint, BellSouth and others, or if the Hepting v. AT&ampT Order should apply to those as well.

For more information about attending the hearing, contact press@eff.org.

WHAT:
NSA telecommunications records lawsuits

WHEN:
2 p.m.
Friday, February 9

WHERE:
450 Golden Gate Ave.
Courtroom 6
San Francisco, CA 94102

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
February 1, 2007

EFF Backs Parody Protest Site of Chicago Auto Show

Chicago - The Electronic Frontier Foundation (EFF) warned the Chicago Auto Show today to back off attempts to muzzle protestors who posted a parody of the show's website.

The parody site, autoshowshutdown.org, is a clearinghouse for information about the "Auto Show SHUTDOWN Festival" -- an annual event where hundreds of cyclists parade through Chicago to raise awareness about global warming and to promote sustainable transportation. The ride culminates in a rally at the entrance to the show. But this week, a lawyer for the auto show sent a threatening letter to the protestors, claiming that the website amounted to trademark infringement and that it would seek damages if the parody was not taken down.

In a letter sent in response today, EFF reminded the auto show that trademark infringement must involve some commercial use, which is clearly not the case in this non-profit, community-organized protest.

"Auto show organizers can't stop thousands of citizens from attending the SHUTDOWN Festival. Instead, they have resorted to baseless trademark claims to silence critics and interfere with planning for an event that embarrasses them," said EFF Staff Attorney Jason Schultz. "Both trademark law and the First Amendment won't allow for that."

In addition, an EFF investigation found that the auto show does not actually own the trademark it is claiming was infringed. Records show that the Chicago Auto Show abandoned the mark by neglecting to respond to correspondence from the U.S. Patent and Trademark Office, as required by law.

"The auto show seems so scared of fair competition in the marketplace of ideas that they aren't playing clean," said protest organizer Dan Korn. "Fortunately, we know our free speech rights, and we will be exercising them during the SHUTDOWN Festival, despite their threats."

EFF's letter to the Chicago Auto Show is part of its ongoing campaign to protect online free speech from the chilling effects of bogus intellectual property claims. EFF is currently representing a blogger threatened with copyright infringement by ABC after criticizing talk radio hosts. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character.

For the full response sent to the Chicago Auto Show:
http://www.eff.org/legal/cases/chicagoautoshow/response_letter.pdf

For more on the threat to the SHUTDOWN Festival:
http://www.eff.org/legal/cases/chicagoautoshow/

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Dan Korn
Organizer
Chicago Auto Show SHUTDOWN Festival
dan@dankorn.com

January 31, 2007

Defense Department Withholds Records About Army Blog Monitoring Program

Washington, D.C. - The FLAG Project at the Electronic Frontier Foundation (EFF) filed suit against the Department of Defense today, demanding expedited information on how the Army monitors soldiers' blogs.

According to news reports, an Army unit called the Army Web Risk Assessment Cell (AWRAC) reviews hundreds of thousands of websites every month, notifying webmasters and bloggers when it sees information it finds inappropriate. Some bloggers have told reporters that they have cut back on their posts or shut down their sites altogether because of the activities of the AWRAC. EFF filed its suit after the Department of Defense and Army failed to respond to Freedom of Information Act (FOIA) requests about the blog monitoring program.

"Soldiers should be free to blog their thoughts at this critical point in the national debate on the war in Iraq," said EFF Staff Attorney Marcia Hofmann. "If the Army is coloring or curtailing soldiers' published opinions, Americans need to know about that interference."

EFF's suit demands records on how the AWRAC conducts its monitoring, as well as any orders to soldiers about revision or deletion of web posts. It also demands expedited processing, as the information is urgently needed by the public.

"Of course, a military effort requires some level of secrecy. But the public has a right to know if the Army is silencing soldiers' opinions as well. That's why the Department of Defense must release information on how this program works without delay," Hofmann said.

EFF's FLAG Project uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy. Previous lawsuits have demanded information about the FBI's huge database of personal information and the Department of Homeland Security's program to assign secret "risk assessment" scores to American travelers.

For the FOIA complaint filed against the Department of Defense:
http://www.eff.org/flag/awrac/awrac_complaint.pdf

For more on the FLAG Project:
http://www.eff.org/flag/

Contact:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Related Issues:
January 26, 2007

Bogus Copyright Infringement Claims Violate Law

San Francisco - The Electronic Frontier Foundation (EFF) warned ABC, Inc. Thursday not to pursue its bogus copyright infringement claims against 'Spocko' -- a blogger who sparked nationwide debate over a San Francisco radio station -- and asked the media giant to retract its baseless threats.

The free speech battle began when Spocko posted audio clips of what he deemed to be offensive talk-radio rhetoric from ABC-owned and San Francisco-based KSFO-AM on his blog at www.spockosbrain.com. In response, ABC, Inc. sent a threatening letter to the blogger's hosting company, claiming that copyright law prevented Spocko from posting the clips. The hosting company responded by shutting Spocko's website down, forcing him to move to a different provider. In a letter sent to ABC, Inc. Thursday, EFF warned that further false copyright claims could compel Spocko to take action to protect his free speech rights.

"Copyright law is not designed to silence speech that you dislike," said EFF Staff Attorney Matt Zimmerman. "ABC and KSFO know that their legal threats were absolutely groundless. Their time and efforts are better spent explaining why they think Spocko is wrong, and letting the public decide, instead of resorting to thuggish legal tactics."

EFF's letter to ABC is the latest development in its ongoing campaign to protect online free speech from the chilling effects of bogus copyright claims. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character.

For the full letter to ABC:
http://www.eff.org/legal/cases/spocko/spockolettertoabc.pdf

For more on Spocko:
http://www.eff.org/legal/cases/spocko/

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
January 8, 2007

Legal Battle Over Controversial Prescription Drug Zyprexa

Legal Battle Over Controversial Prescription Drug Zyprexa

San Francisco - The Electronic Frontier Foundation (EFF) today defended the First Amendment rights of a citizen-journalist to link from a public "wiki" to electronic copies of damaging internal Eli Lilly documents relating to the controversial prescription drug Zyprexa.

At today's hearing, federal district Judge Jack B. Weinstein refused to change his order blocking publication of material that would "facilitate dissemination" of the Lilly documents. A further hearing on the issue is set for Tuesday, January 16.

EFF's client, an anonymous citizen-journalist, posted the links on the wiki located at http://zyprexa.pbwiki.com. Eli Lilly complained, and Judge Weinstein issued his order on January 4. EFF went to court today to challenge this order as an unconstitutional prior restraint on free speech in violation of the First Amendment and to ensure that the right of nonparties in the litigation to link to publicly important information remains protected.

"Preventing a citizen-journalist from posting links to important health information on a public wiki violates the First Amendment," said EFF Senior Staff Attorney Fred von Lohmann. "Eli Lilly's efforts to censor these documents off the Internet are particularly outrageous in light of the information reported by The New York Times, which suggests that doctors and patients who use Zyprexa need to know the information contained in those documents."

According to The New York Times reports, the Eli Lilly documents show that the company intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). The documents were leaked from the ongoing Zyprexa products liability lawsuit, where Weinstein is the presiding judge.

Copies of the leaked Eli Lilly documents have appeared on a variety of websites and other Internet sources. The links to the documents that were posted on the wiki at http://zyprexa.pbwiki.com were part of extensive, in-depth analysis from a number of citizen journalists. A wiki is a website that allows many users to collaborate on its content, creating a kind of simple database for collecting information -- in this case, about the controversy surrounding Zyprexa.

Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. Last week, Eli Lilly agreed to pay up to $500 million to settle claims relating to Zyprexa. This latest settlement brings the total paid by Eli Lilly to resolve lawsuits involving Zyprexa to more than $1.2 billion.

For the full motion filed in the Zyprexa products liability litigation:
http://www.eff.org/legal/cases/zyprexa/zyprexa_motion.pdf

For the court's order of January 4:
http://eff.org/legal/cases/zyprexa/jan4_order.pdf

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
January 8, 2007

Ruling Impedes Search for Answers in Sarasota County Congressional Race

Tallahassee, Fla. - A bipartisan group of Florida voters today challenged a court ruling that is preventing a thorough, independent investigation into alleged voting machine failures in the state's 13th congressional district race.

The appeal asks for a reversal of last week's ruling that allowed electronic voting machine vendor Election Systems &amp Software (ES&ampS) to keep its software, hardware, and related documentation hidden from the voters -- even though experts from both sides agree that something went seriously awry during November's election.

"The court wrongly decided that the voters' legitimate demand to determine who won their election was less important than the remote possibility that an independent investigation by nationally-recognized experts would harm the trade secrets of the vendor," said Electronic Frontier Foundation (EFF) Staff Attorney Matt Zimmerman. "The court could easily have addressed the vendor's concerns the same way trade secret concerns are usually handled in litigation -- by simply issuing a protective order that set limited use of the information to the litigation. The judge had the power to protect the interests of all parties. Unfortunately, in this case, he decided not to use it."

According to the electronic voting machines used during the November general election, more than 18,000 people in Sarasota County -- approximately 15% of the voter turnout -- did not cast a vote for any congressional candidate for the hotly contested seat. Instead of performing a robust analysis of the county's voting machines and software, the Florida Elections Canvassing Commission certified Vern Buchanan as the winner by 363 votes.

The voter plaintiffs' appeal comes days after a key member of the House of Representatives weighed in on the disputed Florida congressional election, saying that not only the litigants but the House of Representatives itself would benefit from more open discovery. On Thursday, the incoming Chairwoman of the House Administration Committee -- which has the responsibility for evaluating any House election contest -- submitted a letter to the Florida First District Court of Appeal noting that the House's evaluation would be assisted by the creation of a complete record, including all relevant and critical evidence.

EFF, VoterAction, People for the American Way Foundation, and the ACLU Foundation of Florida represent 11 Sarasota voters seeking an investigation into likely voting machine malfunctions and a revote if lost votes cannot be recovered. The suit is nonpartisan and not affiliated with either candidate from the race.

For the full request for appeal:
http://www.eff.org/Activism/E-voting/florida/plaintiffs_joinder.pdf

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
December 22, 2006

Controversial Website Shielded by Federal Law Protecting Internet Free Speech

Pittsburgh - The Electronic Frontier Foundation (EFF) urged a Pennsylvania court today to dismiss defamation claims against the controversial website DontDateHimGirl.com, arguing that federal law shields the website from liability to protect the free flow of information online.

DontDateHimGirl.com was created by Tasha Joseph as a forum for women to share information about men. One of the men discussed on the site, Todd J. Hollis, claims that some participants posted defamatory statements about him on the website. In its amicus brief filed today, EFF argues that DontDateHimGirl.com's owner cannot be held liable for comments written by others under Section 230 of the Communications Decency Act. Section 230 specifically protects hosts of interactive computer services from liability to encourage free discourse and robust debate.

"The Internet allows people all over the world to share information and diverse opinions. Without Section 230, no one would risk creating a website where others express ideas," said EFF Staff Attorney Marcia Hofmann. "This doesn't mean that people like Hollis can't pursue defamation cases. They can. But they should sue the person who made the statement in the first place, not the person who created the forum where it was made."

Nearly every court that has considered Section 230 has recognized the intent of the law and shielded website operators from liability. EFF has provided amicus support in a number of lawsuits, including one that recently held that Craigslist was not responsible for the content of posts made by the public.

"Section 230 is key to fostering vital debate and discussion across the Internet. Craigslist and other online communities are thriving because of its protection," said EFF Staff Attorney Kurt Opsahl.

The amicus brief was also signed by the Center for Democracy and Technology and the American Civil Liberties Union (ACLU) of Pennsylvania.

For the full amicus brief:
http://www.eff.org/legal/cases/ddhg/joseph_amicus_final.pdf

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Related Issues:
December 20, 2006

Princeton Professor Behind Important E-voting Vulnerability Research

San Francisco - The Electronic Frontier Foundation (EFF) welcomes the newest member of its Board of Directors, computer security expert Edward W. Felten. A professor of Computer Science and Public Affairs at Princeton University, Felten recently demonstrated the ability to manipulate results on a Diebold electronic voting machine -- showing that the equipment was extremely vulnerable to "vote-stealing" attacks that would undermine the accuracy of vote counts.

Felten's research interests include computer security and privacy -- especially relating to media and consumer products -- and technology law and policy. He has published about 80 papers in the research literature and two books. Felten was the lead computer science expert witness for the Department of Justice in the Microsoft antitrust case. He has also testified before the Senate Commerce Committee on digital television technology and regulation and before the House Administration Committee on electronic voting.

Felten is the founding Director of Princeton's Center for Information Technology Policy, and his weblog, at freedom-to-tinker.com, is widely regarded for its commentary on technology, law, and policy. In 2004, Scientific American magazine named Felten to its list of 50 worldwide science and technology leaders.

"EFF confronts critically important issues on the cutting edge of technology and freedom," said Felten. "My research and EFF's work have often intersected over the years, and I'm very pleased to take the next step and join the board as we strive to keep the digital world innovative, free, and secure."

In 2001, Felten and EFF sued the Recording Industry Association of America and the Secure Digital Music Initiative in a case challenging the constitutionality of the Digital Millennium Copyright Act (DMCA). EFF honored Felten with a Pioneer Award in 2005, which recognizes those who have made outstanding contributions to the development of computer-mediated communications and empower individuals in using computers and the Internet. He had previously served on EFF's advisory board.

"I have always been a huge fan of Ed's work, using his technical expertise to expose weak and vulnerable technologies to those of us more technically challenged," said EFF Executive Director Shari Steele. "I'm delighted to have him join EFF's Board of Directors."

Other members of EFF's executive board include Brad Templeton, John Perry Barlow, David Farber, John Gilmore, Brewster Kahle, Joe Kraus, Lawrence Lessig, and Pamela Samuelson.

Contact:

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

December 19, 2006

Millions of U.S. Travelers Affected by Giant Data-Mining Program

Washington, D.C. - The FLAG Project at the Electronic Frontier Foundation (EFF) filed suit against the Department of Homeland Security (DHS) in federal court today, demanding immediate answers about an invasive and unprecedented data-mining system deployed on American travelers.

The Automated Targeting System (ATS) creates and assigns "risk assessments" to tens of millions of citizens as they enter and leave the country. In November, DHS announced that the program would launch on December 4, but Homeland Security Secretary Michael Chertoff later admitted that the program had already been in operation for several years.

"The news of this secret program sparked a nationwide uproar. DHS needs to provide answers, and provide them quickly, to the millions of law-abiding citizens who are worried about this 'risk assessment' score that will follow them throughout their lives," said EFF Senior Counsel David Sobel.

Under ATS, individuals have no way to access information about their "risk assessment" scores or to correct any false information about them. But while you cannot see your score, it will be made readily available to untold numbers of federal, state, local, and foreign agencies. The government will retain the data for 40 years.

While the publicly available information about ATS is disturbing enough, there are many critical details the government did not disclose. For example, DHS has not announced what the consequences might be of a "risk assessment" score that indicates an individual might be a threat. EFF's suit demands an urgent and expedited response to the Freedom of Information Act (FOIA) request filed earlier this month, including all Privacy Impact Assessments for the ATS, all records that describe redress for individuals who believe the system includes inaccurate information, and all records that discuss potential consequences for travelers as a result of the system.

"ATS is precisely the sort of system that Congress sought to prohibit with the Privacy Act of 1974," said Sobel. "DHS needs to abide by the law and give Americans the information they deserve about this dangerous program."

Congressional leaders have indicated that they are likely to convene hearings on ATS when the new Congress convenes in January. Today's lawsuit cites that pending oversight as an additional reason why DHS must release details about the system on an expedited basis.

For the FOIA complaint filed against the Department of Homeland Security:
http://www.eff.org/Privacy/ats/ats_complaint.pdf

For more on the ATS program and other travel screening issues:
http://www.eff.org/privacy/travel/

Contacts:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Related Issues:
December 18, 2006

Thursday Hearing on Public Release of Documents

San Francisco - On Thursday, December 21, at 2 p.m., a federal judge in San Francisco will consider requests from media groups to unseal critical evidence in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT.

EFF's suit accuses the telecom giant of collaborating with the National Security Agency (NSA) in illegal spying on millions of ordinary Americans. The sealed evidence includes a declaration by Mark Klein, a retired AT&ampT telecommunications technician, as well as several internal AT&ampT documents and portions of a declaration from EFF's expert witness. Some of the evidence was previously released in redacted form, while other evidence is still completely unavailable to the media and the public.

U.S. District Court Judge Vaughn Walker will also consider whether two state court lawsuits against AT&ampT and Verizon over NSA access to phone records, which were recently transferred to his courtroom, should be transferred back to state court.

WHAT:
Hepting v. AT&ampT and other NSA telecommunications records lawsuits

WHEN:
2 p.m.
Thursday, December 21

WHERE:
450 Golden Gate Ave., Courtroom 6
San Francisco, CA 94102

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
December 15, 2006

Search for Thousands of Missing Votes in Sarasota County Congressional Race

Tallahassee, Fla. - On Tuesday, December 19th, at 1 p.m., a state judge in Tallahassee, Florida, will consider whether representatives of Florida voters will gain access to voting machines and software in a contested election for the U.S. House of Representatives seat for Florida's 13th congressional district.

The Electronic Frontier Foundation (EFF) and other election advocacy groups last month filed suit on behalf of Sarasota County voters – both Republicans and Democrats – and are demanding a thorough investigation into potential electronic voting machine malfunctions. State and local election officials, however, continue to object to making the electronic voting machines and software available for examination. Tuesday's hearing will consider, among other issues, whether such materials must be made available to outside experts.

According to the electronic voting machines used during the November general election, more than 18,000 people in Sarasota County – approximately 15% of the voter turnout – did not cast a vote for any congressional candidate for this hotly contested seat. Instead of performing a robust analysis of the County's voting machines and software, the Florida Elections Canvassing Commission certified Vern Buchanan as the winner by 363 votes. The voters' lawsuit contends that thousands of voters were likely disenfranchised by machine-related problems.

WHAT:
Fedder v. Gallagher

WHEN:
1 p.m.
Tuesday, December 19

WHERE:
Leon County Courthouse
301 S. Monroe St.
Tallahassee, FL 32301

For more on the Florida lawsuit:
http://www.eff.org/news/archives/2006_11.php#005020

For more on EFF's E-Voting work:
http://www.eff.org/Activism/E-voting/

Contacts:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
November 30, 2006

EFF Fights Huge Data-Mining Program Set for Rollout on U.S. Borders

Washington, D.C. - An invasive and unprecedented data-mining system is set to be deployed on U.S. travelers Monday, despite substantial questions about Americans' privacy. In comments sent to the Department of Homeland Security (DHS) today, the Electronic Frontier Foundation (EFF) asked the agency to delay the program's rollout until it makes more details available to the public and addresses critical privacy and due process concerns.

The Automated Targeting System (ATS) will create and assign "risk assessments" to tens of millions of citizens as they enter and leave the country. Individuals will have no way to access information about their "risk assessment" scores or to correct any false information about them. But once the assessment is made, the government will retain the information for 40 years -- as well as make it available to untold numbers of federal, state, local, and foreign agencies in addition to contractors, grantees, consultants, and others.

"The government is preparing to give millions of law-abiding citizens 'risk assessment' scores that will follow them throughout their lives," said EFF Senior Counsel David Sobel. "If that wasn't frightening enough, none of us will have the ability to know our own score, or to challenge it. Homeland Security needs to delay the deployment of this system and allow for an informed public debate on this dangerous proposal."

Earlier this month, EFF's FLAG Project submitted a Freedom of Information Act (FOIA) request to DHS seeking more details about the ATS data-mining program, but the agency has not yet disclosed the requested information.

For EFF's full comments to DHS:
http://www.eff.org/Privacy/ats/ats_comments.pdf

For the DHS Federal Register notice announcing ATS:
http://edocket.access.gpo.gov/2006/06-9026.htm

Contact:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
November 30, 2006

Landmark Forum Withdraws Subpoena for Identity of Anonymous Poster

San Francisco - A controversial self-help group has backed off its attack on an Internet critic after the Electronic Frontier Foundation (EFF) intervened in the case.

Landmark Education, known for its Landmark Forum motivational workshops, served a subpoena for the identity of an anonymous user of Google Video last month, claiming that a French documentary posted by the user infringed Landmark's copyrights. The piece, entitled "Voyage Au Pays Des Nouveaux Gourous" (Voyage to the Land of the New Gurus), is highly critical of Landmark and included hidden camera footage from inside a French Landmark Forum event along with panel discussions about the group. The piece had also been posted with English subtitles on popular U.S. video sites YouTube and the Internet Archive.

In a settlement reached Tuesday, Landmark agreed to withdraw the subpoena to Google and end its quest to pierce the anonymity of the video's poster. Landmark has also withdrawn its subpoena to the Internet Archive. EFF represents both the anonymous critic and the Internet Archive.

"We're glad that Landmark withdrew its subpoenas, and our client's right to speak anonymously was preserved," said EFF Staff Attorney Kurt Opsahl. "Hopefully Landmark has learned its lesson and will cease its campaign to stifle criticism by misusing the DMCA."

The Digital Millennium Copyright Act (DMCA) allows a content owner to issue a subpoena for the identity of an alleged infringer without first filing an actual lawsuit. The provision can be used to intimidate Internet users who wish to remain anonymous online. As part of the settlement, Landmark released any and all claims it may have had against the anonymous poster, and the poster agreed not to re-post the video. The video is currently available online from other sources, including the Australian Cult Awareness &amp Information Centre, http://www.caic.org.au/, and bit-torrent.

"Landmark's legal threats took an emotional toll," said the anonymous poster, known as "John Doe" in the settlement. "When I found out that my identity might be revealed based on a bogus copyright claim, I was really worried that Landmark might try to retaliate against me."

The settlement is part of EFF's ongoing campaign to protect the right of anonymous speakers on the Internet. Earlier this year, EFF helped to preserve the anonymity of online embroidery fans critical of an industry group, and also protected the identities of users of an online message board discussing Oklahoma public schools.

For the letter confirming the subpoena withdrawal:
http://www.eff.org/legal/cases/landmark/letter_to_edmund_choy.pdf

For the full settlement agreement:
http://www.eff.org/legal/cases/landmark/settlement_agreement.pdf

For more on Landmark's subpoena campaign:
http://www.eff.org/legal/cases/landmark/

For the video:
http://www.caic.org.au/index.php?option=com_content&amptask=view&ampid=1243&ampItemid=12

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Related Issues:
November 28, 2006

Purple Dinosaur Backs Off and Pays Up Free Speech Rights Preserved

San Francisco - The corporate owners of the popular children's television character Barney the Purple Dinosaur have agreed to withdraw their baseless legal threats against a website publisher who parodied the character and to compensate him for fees expended in defending himself.

The agreement settles a suit filed by the Electronic Frontier Foundation (EFF) in August on behalf of Dr. Stuart Frankel against Lyons Partnership, owners of the Barney character. Frankel received repeated, meritless cease-and-desist letters from Lyons, claiming his online parody violated copyright and trademark law. EFF's suit asked the court to declare that Frankel's parody was a noninfringing fair use protected by the First Amendment.

"We wish we hadn't had to file a lawsuit to finally get Barney's lawyers to stop harassing a man who was just expressing his opinion about a cultural phenomenon," said EFF Staff Attorney Corynne McSherry. "Hopefully Lyons Partnership has learned its lesson and will have more respect for fair use in the future."

This settlement is the latest development in EFF's ongoing campaign to protect online free speech from the chilling effects of bogus copyright claims. Earlier this month, EFF filed suit against Michael Crook -- a man who claimed copyright infringement in an effort to censor his online critics.

"Those who misuse copyright should know that they can be sued for doing so," said McSherry. "This settlement should send a message to those who want to use copyright law as a pretext for censorship."

EFF was assisted in this case by Elizabeth Rader, James d'Auguste, and Brian Carney, attorneys with the firm of Akin, Gump, Strauss, Hauer &amp Feld LLP, which is defending Dr. Frankel's free speech rights on a pro bono basis.

For the original complaint:
http://www.eff.org/legal/cases/barney/frankel_v_lyons_complaint.pdf

For more on Barney's copyright abuses:
http://www.eff.org/legal/cases/barney/

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
November 27, 2006

Email Deserves Same Constitutional Protections as Phone Calls, Postal Mail

San Francisco - The government must have a search warrant before it can search and seize emails stored by email service providers, according to a friend-of-the-court brief filed last week by the Electronic Frontier Foundation (EFF) and a coalition of civil liberty groups. EFF filed the brief in support of a landmark district court decision finding that the federal Stored Communications Act (SCA) violates the Fourth Amendment by allowing secret, warrantless searches and seizures of email stored with a third party.

EFF's amicus brief was filed in Warshak vs. United States, a case brought in the Southern District of Ohio federal court by Steven Warshak to stop the government's repeated secret searches and seizures of his stored email using the SCA. The district court ruled that the government cannot use the SCA to obtain stored email without a warrant or prior notice to the email account holder. The government, which has routinely used the SCA over the past 20 years to secretly obtain stored email without a warrant, appealed the decision to the 6th U.S. Circuit Court of Appeals. That court is now primed to be the first circuit court ever to decide whether email users have a "reasonable expectation of privacy" in their stored email.

"Email users clearly expect that their inboxes are private, but the government argues the Fourth Amendment doesn't protect emails at all when they are stored with an ISP or a webmail provider like Hotmail or Gmail," said EFF Staff Attorney Kevin Bankston. "EFF disagrees. We think that the Fourth Amendment applies online just as strongly as it does offline, and that your email should be as safe against government intrusion as your phone calls, postal mail, or the private papers you keep in your home."

The EFF brief was also signed by the American Civil Liberties Union, the ACLU of Ohio, and the Center for Democracy and Technology.

For the full amicus brief:
http://eff.org/legal/cases/warshak_v_usa/warshak_amicus.pdf

Contact:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Related Issues:
November 21, 2006

Department of Homeland Security Dodges Records' Disclosure

Department of Homeland Security Dodges Records' Disclosure

Washington DC - The FLAG Project at the Electronic Frontier Foundation (EFF) filed suit against the Department of Homeland Security (DHS) today, demanding information about a new agreement on the handling of air passenger data from flights between the European Union (EU) and the United States.

Two years ago, the U.S. and EU made a controversial deal requiring airlines to give DHS access to detailed passenger information from EU flights to and from the U.S. In May, the European Court of Justice struck down the agreement, finding it at odds with EU law. But the U.S. and EU reached a new agreement last month that will give U.S. law enforcement and intelligence agencies greater access to the data than the previous deal did. EFF filed its suit after DHS failed to respond to a Freedom of Information Act (FOIA) request for records about the handling of data under the new agreement, including how they are maintained, used, disclosed, and secured.

"Travelers may give up a lot of personal information when they make flight reservations," said EFF Staff Attorney Marcia Hofmann. "Those traveling between Europe and the United States deserve to know who gets to see that data, how the information is protected, and whether those practices comply with EU law."

EFF's FLAG Project uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy. Previous lawsuits have demanded information about the FBI's huge database of personal information, as well as records on the FBI's electronic surveillance systems.

"When federal agencies don't comply with the FOIA's requirements, they may conceal activities and programs that raise serious legal issues and put Americans' privacy at risk," said Hofmann. "The Department of Homeland Security must abide by the law and give the public information about the new passenger data agreement."

For the FOIA complaint filed against the Department of Homeland Security:
http://www.eff.org/flag/dhs/dhs_complaint.pdf

For more on the FLAG Project:
http://www.eff.org/flag

Contact:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Related Issues:
November 21, 2006

Local Voters Supported by Election Advocacy Groups Including EFF

Tallahassee, FL - Voters from Sarasota County announced today that they are filing suit in state court in Tallahassee asking for a re-vote in Florida's 13th congressional district. The suit alleges that thousands of citizens were disenfranchised when massive undervotes plagued the tight congressional race between Democrat Christine Jennings and Republican Vern Buchanan. In a high-profile battle over former Rep. Katherine Harris' seat, the result was decided by 363 votes, yet over 18,000 ballots cast on Sarasota County's e-voting machines registered no vote in the race, an exceptional anomaly in the State.

The lawsuit is being filed by a group of Sarasota County voters, both Republican and Democratic. The voters are represented by election advocacy groups, including Voter Action, People For the American Way Foundation, the Electronic Frontier Foundation and the American Civil Liberties Union (ACLU) of Florida.

"Election officials have shown remarkable disregard for the ability of voters to actually cast a ballot," said Ralph Neas, President of People For the American Way Foundation. "Casting a vote is one of our most fundamental rights, and that right was violated for thousands of Sarasota County voters. At this point holding a new election is the only appropriate option." Neas also called for statewide election reform, saying, "Florida can no longer afford to certify election results that no one trusts."

ACLU of Florida Executive Director Howard Simon noted: "For years, Gov. Jeb Bush's administration, including various Secretaries of State, has dismissed reports of problems with electronic voting machines and resisted mandating audits and other methods of ensuring that electronic voting machines are capable of performing a genuine re-count. We even had to go to court to overturn an Administrative Rule issued by the Secretary of State banning recounts in DRE Counties. Now we have mass disenfranchisement and a crisis in voter confidence in the integrity of the elections. It is likely that the faulty machines, not the voters, decided this election."

Voter Action, a national nonpartisan advocacy group focused on election integrity has been leading legal efforts nationally to address the problems with electronic voting. "The problems in Sarasota are not unique, "said election law attorney Lowell Finley, co-director of the organization. "Across the country we have seen how these systems lose large numbers of votes, switch voters' selections on the screen, cause high undervote rates, add votes or even count votes backwards. Our democracy is too important to continue using unreliable and untrustworthy voting equipment. The people of Sarasota are standing up for their most fundamental right no matter their political affiliation. This is about protecting democracy." The suit is being filed under provisions of Florida law that permit voters to contest an election based on misconduct by election officials or on evidence that legal votes were rejected in sufficient numbers to place in doubt the outcome of the election.

The voters' lawsuit cites misconduct of election officials, including the failure of Sarasota Supervisor of Elections Kathy Dent to adequately investigate, identify or report equipment malfunctions, software malfunctions or ballot layout errors in the ES&ampS iVotronic touch screen voting machines, even after she received numerous complaints about the machines from voters and poll-workers during the two week period of early voting.

The lawsuit also alleges that the iVotronic voting machines were improperly certified by the Florida Secretary of State in disregard of early warnings concerning the reliability and trustworthiness of e-voting systems made by ES&ampS systems.

On Monday, the Florida Elections Canvassing Commission certified Vern Buchanan as the winner of the Congressional District 13 race by 363 votes, despite the fact that electronic ballots cast by more than 18,000 people in Sarasota County showed no vote for either candidate in a high profile congressional race. This is an undervote rate of more than 16%, compared to an undervote rate of 2.5% in the paper absentee ballots and 1% in the U.S. Senate race on the same electronic ballot.

At a public hearing hosted last Thursday by PFAWF, ACLU of Florida, Voter Action, Common Cause, and Fair Vote Florida, numerous voters in Sarasota County reported that when the summary screen appeared on the ES&ampS voting machines they were assigned to use, their vote had not been recorded. Some voters were able to go back and record a vote, but others believe they were never given a meaningful opportunity to cast a vote in that race.

The lawsuit notes that absentee ballots, which are cast on paper instead of the computerized touch screen voting machine, did not reflect a similar lack of votes in the congressional race in Sarasota, and that other counties in the same congressional district -- which used different voting equipment -- did not experience the same massive undercount in the congressional race.

"The voters of the 13th Congressional District deserve to know for sure who they elected," said Electronic Frontier Foundation Staff Attorney Matt Zimmerman. "Voters should not have to take the word of vendors and election officials when serious problems emerge that call into question the accuracy of the results. This suit is designed to help voters find out what really happened."

Full complaint [PDF, 758K]:
http://www.eff.org/Activism/E-voting/florida/sarasota_complaint.pdf

For more on EFF's E-Voting work:
http://www.eff.org/Activism/E-voting/

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
November 20, 2006

San Francisco - In what is a victory for free speech on the Internet, the California Supreme Court ruled today that no provider or user of an interactive computer service may be held liable for putting material on the Internet that was written by someone else. In doing so, the Court overruled an earlier decision by the Court of Appeal.

Today's ruling affirms that blogs, websites, listservs, and ISPs like Yahoo!, as well as individuals like defendant Ilena Rosenthal, are protected under Section 230 of the federal Communications Decency Act (CDA), which explicitly states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

"By reaffirming that Congress intended to grant protection under Section 230 to those who provide a forum for the views of others, the Court has ensured that the Internet will remain a vibrant forum for debate and the free exchange of ideas," said Ann Brick, staff attorney at the ACLU of Northern California. "Any other ruling would have inevitably made speech on the Internet less free."

The issue raised in Barrett v. Rosenthal was whether Section 230's protection applies to individuals who frequently use the Internet to pass on information obtained elsewhere, whether by forwarding an email written by someone else or, as was the case in Barrett, posting an email from someone else to a newsgroup. The ACLU-NC and the Electronic Frontier Foundation (EFF) filed an amicus brief in the California Supreme Court arguing that Section 230 means what it says and applies to "users" of interactive computer services as well as "providers."

"Courts have consistently interpreted Section 230 to provide broad protections for the platforms upon which free speech has flourished online," said EFF Staff Attorney Kurt Opsahl. "By reversing the Court of Appeal, the California Supreme Court has brought California back in line with other jurisdictions and reaffirmed the critical rule that the soapbox is not liable for what the speaker has said."

In January 2004, in Barrett v. Rosenthal, the Court of Appeal for the First District overruled the dismissal of a defamation lawsuit filed against an activist for her re-publication on the Internet of someone else's words. The court refused to extend any protection under Section 230, which was expressly enacted "to promote the continued development of the Internet and other interactive computer services," in a manner "unfettered by Federal or State regulation."

"The Supreme Court's opinion strengthens protection for speech on the Internet" said Mark Goldowitz, director of the California Anti-SLAPP Project and counsel for Rosenthal. "Justice Corrigan's opinion protects against the 'heckler's veto' chilling speech on the Internet."

For the full decision, see EFF's website at:
http://www.eff.org/legal/cases/Barrett_v_Rosenthal/ruling.pdf

Contacts:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Stella Richardson
Media Relations Director
ACLU of Northern California
srichardson@aclunc.org

November 20, 2006

Press Conference Tuesday, November 21, 2006 by EFF, Voter Action,
People For the American Way Foundation, the ACLU of Florida

Tallahassee, FL - The Electronic Frontier Foundation, Voter
Action, People For the American Way Foundation, and the
ACLU of Florida will hold a press conference tomorrow to
announce a lawsuit calling for a re-vote in Sarasota
County's portion of Florida's 13th Congressional District.

Speakers at the event will include Reggie Mitchell of
PFAWF, Lowell Finley of Voter Action, and Larry Spalding of
ACLU-Florida. The event will also feature one of the
Sarasota voters who will be a plaintiff in the suit.

WHEN:
1 P.M. EST
Tuesday, November 21, 2006

WHERE:
Front Steps of the Leon County Courthouse (2nd Judicial Circuit)
301 S. Monroe St.
Tallahassee, FL 32301

WHO:
Reggie Mitchell, Florida Legal Counsel, People For the American Way Foundation
Lowell Finley, Co-Director, Voter Action
Larry Spalding, Legislative Counsel, ACLU-Florida

For more information, contact:
Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

November 14, 2006

Americans Have the Right to See Laws They Must Follow

Washington, D.C. - The Electronic Frontier Foundation (EFF) and a coalition of non-profit organizations asked the U.S. Supreme Court Monday to hear a case challenging a secret law governing travelers in American airports.

The case centers on the Transportation Security Agency (TSA) requirement that travelers show identification before boarding commercial aircraft. So far, the TSA has refused to disclose the terms of the identification requirement to the public, claiming that they are "sensitive security information." In the amicus brief urging the Supreme Court to hear Gilmore v. Gonzales, EFF demonstrates that Congress never intended agencies to have unfettered discretion to impose requirements upon the public without allowing the public to review them.

"The TSA is allowed to withhold some information from the public, but only in cases where transportation security is at risk," said EFF Staff Attorney Marcia Hofmann. "Simply showing Americans the rules they must follow can't possibly compromise security. The real danger here is meaningless secrecy, which can hide security flaws, frustrate the justice system, create confusion, and undermine government accountability."

The Constitution and laws like the Freedom of Information Act (FOIA) prohibit the government from imposing secret laws on the public. But if the lower court decision permitting the secrecy is allowed to stand, it opens the door to other government agencies creating undisclosed rules and regulations without oversight.

"'Security' shouldn't be a magic password allowing the government to escape accountability," said Hofmann. "The Supreme Court should hear this case and review why the TSA insists on keeping this basic information secret."

The amicus brief was also signed by the American Association of Law Libraries, American Library Association, Association of Research Libraries, Center for Democracy and Technology, National Security Archive, Project on Government Secrecy of the Federation of American Scientists, and Special Libraries Association.

For the full amicus brief:
http://www.eff.org/legal/cases/gilmore_v_gonzales/gilmore_amicus.pdf

Contact:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

November 14, 2006

Judge to Consider Next Steps in Class Action Lawsuits

San Francisco - On Friday, November 17, at 10:30 a.m., a federal judge in San Francisco will consider the next steps in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT.

EFF's suit accuses the telecom giant of collaborating with the National Security Agency (NSA) in illegal spying on millions of ordinary Americans. Other cases recently transferred to U.S. District Court Judge Vaughn Walker's courtroom include similar allegations.

The U.S. government has intervened in EFF's case, contending that even if the NSA program is illegal, the lawsuit should be dismissed because it might expose state secrets. Last week, the U.S. government asked the judge to halt all proceedings until the 9th U.S. Circuit Court of Appeals rules on motions to dismiss the case.

Friday's case management conference will address how EFF's suit and the other class-action cases might go forward without implicating the state secrets privilege, and what discovery should proceed during the appeals process.

For more information about attending the hearing, please contact press@eff.org.

WHAT:
Hepting v. AT&ampT and other NSA telecommunications records lawsuits

WHEN:
Friday, November 17, 10:30 a.m.

WHERE:
450 Golden Gate Ave., Courtroom 6
San Francisco, CA 94102

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
November 7, 2006

EFF Battles Effort to Dismiss Surveillance Lawsuit

San Francisco - The U.S. 9th Circuit Court of Appeals announced today that it will hear the U.S. government's and AT&ampT's appeal of a district court's decision allowing the Electronic Frontier Foundation's (EFF's) case against AT&ampT to go forward. The lawsuit alleges that AT&ampT collaborated in the National Security Agency's (NSA's) illegal spying program. The 9th Circuit did not rule on the merits of the appeal.

By this appeal, the U.S. government and AT&ampT are asserting that the so-called "state secret privilege" prevents the federal judiciary from determining whether the spying program is legal or not. In July, U.S. District Court Judge Vaughn Judge Walker ruled that the case could continue, noting that "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

"It remains the province and the duty of the courts to determine whether the spying program broke the law, and the courts are quite capable of proceeding while respecting both liberty and security," said EFF Staff Attorney Kurt Opsahl. "We are looking forward to litigating before the 9th Circuit on this important matter."

EFF filed the class-action suit against AT&ampT in January, alleging that the company has given the NSA secret, direct access to the telephone calls and emails going over its network. In a separate case, a federal judge in Detroit ruled in August that the entire program was unconstitutional.

Judge Walker has set a case management conference for November 17th to consider how EFF's lawsuit and other suits against telecommunications companies can go forward. The hearing will start at 10:30am at the U.S. District Court in San Francisco.

For the full order from the 9th Circuit:
http://www.eff.org/legal/cases/att/appealgranted.pdf

For more on the class-action lawsuit against AT&ampT:
http://www.eff.org/legal/cases/att/

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Related Issues:
November 7, 2006

Delays Mean Long Lines for Voters in Florida, Utah, and Other States

San Francisco - Problems with electronic voting machine failures kept some polls from opening, created long lines, and left many voters puzzled about whether their votes were counted in Tuesday's high stakes election.

The Electronic Frontier Foundation (EFF) joined a nationwide team of technology lawyers and other experts staffing nationwide call centers and legal command posts on Election Day. The volunteers chronicled election problems, assisted voters, and worked with election officials to pull malfunctioning machines wherever possible. By 8:00 pm ET on Tuesday, over 17,000 incidents, including machine-related problems, had been reported to the Election Protection Coalition's 866-OUR-VOTE hotline.

The types of machine problems reported to EFF volunteers were wide-ranging in both size and scope. Polls opened late for machine-related reasons in polling places throughout the country, including Ohio, Florida, Georgia, Virginia, Utah, Indiana, Illinois, Tennessee, and California. In Broward County, Florida, voting machines failed to start up at one polling place, leaving some citizens unable to cast votes for hours. EFF and the Election Protection Coalition sought to keep the polling place open late to accommodate voters frustrated by the delays, but the officials refused. In Utah County, Utah, more than 100 precincts opened one to two hours late on Tuesday due to problems with machines. Both county and state election officials refused to keep polling stations open longer to make up for the lost time, and a judge also turned down a voter's plea for extended hours brought by EFF.

"If election officials insist on depending on this unreliable technology, they should be prepared to react appropriately when things go wrong," said EFF Legal Director Cindy Cohn. "Voters should not have to bear the brunt of this poor planning. We are very disappointed that the court did not recognize that."

"Jumping vote" problems -- touchscreen machines displaying selections not intended by voters -- once again appeared across the country and across machine models. Some voters again encountered difficulty making or changing selections on touchscreen machines, resulting in long lines and frustrated voters leaving polling places. Optical scan machines also broke down in many places, most prominently in Cook County, Illinois, but also in Los Angeles, California, also leading to long delays for voters.

The national monitoring campaign was developed after many states hastily implemented flawed electronic voting machines and related election procedures. Twenty-three states still do not require a paper record of all votes, despite the demonstrated technical failures of e-voting machines in the 2004 presidential election. Without a record, voters cannot verify that the e-voting machines are recording their votes as intended, and election officials cannot conduct recounts. In addition, most of these machines use "black box" software that hasn't been publicly reviewed for security.

But poorly designed systems are not the only problem. Most election workers remain woefully under-trained regarding potential e-voting problems. Vendor technicians frequently have unsupervised access to voting equipment, and local election officials routinely deny attempts to examine e-voting audit data.

Along with supporting local election reform, EFF has helped Congressional Rep. Rush Holt's Voter Confidence and Increased Accessibility Act garner immense, bipartisan support. The bill contains several critically important election reforms, including the requirement of a paper trail for all electronic voting machines, random audits, and public availability of all code used in elections.

"Voters deserve these practical election reforms -- not long lines and unverifiable results," said EFF Staff Attorney Matt Zimmerman.

For the latest election news:
http://www.eff.org/deeplinks/

For more on EFF's e-voting efforts:
http://www.eff.org/Activism/E-voting/

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
November 1, 2006

Baseless Copyright Claims Used to Shut Down Debate Over Privacy Controversy

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against the man behind "craigslist-perverts.org" -- a website that publicized responses to fake personal advertisements posted on Craigslist.org -- on behalf of an online journalist who criticized the controversial outing campaign and received legal threats in return.

Michael Crook posted the fake ads earlier this year, claiming to be a young woman seeking a casual sexual encounter. Crook then displayed many of the replies on his craigslist-perverts.org website, including information such as the responders' names, photographs, phone numbers, and where they worked. Jeff Diehl, the editor of Internet magazine 10 Zen Monkeys, published an article in September critical of Crook's behavior and used an image of Crook being interviewed by Fox News to highlight how controversial a figure he was.

Instead of responding to the criticism with words, Crook sent a legal notice to the magazine's online service provider, claiming to be the copyright holder of the image and demanding that it be removed under the Digital Millennium Copyright Act (DMCA). Such actions violate the DMCA's requirements that only the copyright holder or someone authorized by her can send such notices.

"This is yet another case of someone intentionally misusing copyright law to try to shut down legitimate debate on an issue of public interest," said EFF Staff Attorney Jason Schultz. "Crook certainly doesn't own the copyright to the news footage -- Fox News does. Furthermore, a still shot of that footage, used as part of a commentary on the controversy surrounding him, is clearly a fair use. It's hypocritical for such an outspoken figure like Crook to attack other speakers just because they disagree with him."

Because of Crook's misuse of the DMCA, Diehl was forced to switch web-hosting companies in order to continue publish the photo. But even then, Crook sent another bogus DMCA notice to the new hosting company, and Diehl had to remove the photo for a second time. In the lawsuit filed today, EFF asks that Diehl be compensated for the financial and personal expenses associated with responding to the meritless claims and switching web hosts -- as well as for the infringement to his free speech rights protected by the First Amendment.

This lawsuit is part of EFF's ongoing work to protect online free speech in the face of bogus copyright claims. Last week, EFF filed an objection to a subpoena from Landmark Education, a group that claimed copyright infringement in a video uploaded to the Internet Archive.

"The Internet is home to passionate debate on countless important issues. It is too bad that some people find the robust exercise of free speech so frightening that they use intimidation to try to silence it," said EFF Staff Attorney Corynne McSherry. "EFF is grateful that people like Jeffrey Diehl and the Internet Archive are fighting back."

For more on the lawsuit against Michael Crook:
http://eff.org/legal/cases/diehl_v_crook

For more on the Internet Magazine 10 Zen Monkeys:
http://10zenmonkeys.com/2006/11/01/eff-crook-dmca-lawsuit/

For more on the Landmark Education's subpoena campaign:
http://www.eff.org/legal/cases/landmark/

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Jeff Diehl
Editor
10 Zen Monkeys
stupendous@gmail.com

Related Issues:
October 30, 2006

Landmark Forum Violates Constitution and Federal Law by Trying to Chill Speech

San Francisco - The Electronic Frontier Foundation (EFF) is fighting a controversial self-help group's coordinated, illegal campaign to silence Internet critics.

San Francisco-based Landmark Education, known for its Landmark Forum motivational workshops, is trying to suppress an investigative television news piece critical of its methods. Landmark contends that the documentary infringes its copyright in the Forum course, while citing to copyright registration of the Forum leader's manual. Using the alleged copyright violation as a pretext, Landmark subpoenaed three websites hosting the video -- the Internet Archive, Google Video, and YouTube -- seeking the identities of the anonymous uploaders. The Digital Millennium Copyright Act (DMCA) allows a content owner to issue a subpoena for the identity of an alleged infringer without first filing an actual lawsuit.

"This is a classic example of using a bogus copyright claim to squelch free speech," said EFF Staff Attorney Corynne McSherry. "To the extent that the documentary uses any Landmark material, that use is clearly non-infringing. Landmark is simply trying to use the streamlined DMCA subpoena process to obtain the identities of its critics."

Landmark's efforts are being challenged on multiple fronts. The Internet Archive is fighting its subpoena, and EFF filed official objections on its behalf Friday. Later this week, EFF will also file a motion to quash the subpoena issued to Google Video, on behalf of the anonymous speaker who uploaded the video. Google has advised Landmark that it will not produce the requested information pending a ruling on that motion. YouTube sent notification to the user about its subpoena and is giving the user a reasonable opportunity to move to legally nullify, or "quash," it.

"Sharing videos on the web is the latest example of free speech flowering on the Internet," said Staff Attorney Kurt Opsahl. "Unfortunately, it is being met by a simultaneous rise in the use of baseless legal claims as an excuse to pierce anonymity and chill speech. This kind of intimidation has to stop."

For EFF's objection to the Internet Archive subpoena:
http://www.eff.org/legal/cases/landmark/eff_letter.pdf

For more on Landmark's subpoena campaign:
http://www.eff.org/legal/cases/landmark/

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Related Issues:
October 26, 2006

Freedom of Information Act Can Help Researchers Uncover Important Records

Washington, D.C. - Bloggers across the Internet have shown that you don't have to be part of the mainstream media to uncover an important story and tell it to the world. But how do you start investigating a big story for your blog?

Today, the Electronic Frontier Foundation (EFF) has released tips for bloggers who want the inside story on government agencies. The Bloggers' FAQ on the Freedom of Information Act (FOIA) outlines how to use open government laws to get access to records kept by federal agencies like the Federal Bureau of Investigation (FBI), the Environmental Protection Agency (EPA), or the Food and Drug Administration (FDA).

"Online journalism makes a unique contribution to America's vibrant culture of free speech," said EFF Staff Attorney Marcia Hofmann. "Using the Freedom of Information Act is a powerful way to shed light on government activities and foster critical public debate about the discoveries."

The guide walks bloggers through making a FOIA request -- addressing what to ask for, which government offices must comply, and what you can and cannot obtain through FOIA. It also explains how to put requests on the fast track and get processing fees waived.

The guide is the most recent product of EFF's FLAG Project, which uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy. Earlier this month, the FLAG Project filed lawsuits demanding that the FBI release records concerning the development of two electronic surveillance tools as well as information about the FBI's "Investigative Data Warehouse" (IDW) -- a huge database that contains hundreds of millions of entries of personal information.

"The FLAG Project investigates privacy-invasive tools and policies fostered by the government. There are many other important issues out there in which a blogger can make a difference," EFF Senior Counsel David Sobel said. "Everyone has the ability through FOIA to discover government corruption, fraud and waste, and to publicize those abuses of power."

For the Bloggers' FAQ on the Freedom of Information Act:
http://www.eff.org/bloggers/lg/faq-FOIA.php

For the complete Legal Guide for Bloggers:
http://www.eff.org/bloggers/lg/

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

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
October 17, 2006

'Investigative Data Warehouse' Includes Hundreds of Millions of Entries

'Investigative Data Warehouse' Includes Hundreds of Millions of Entries

Washington, D.C. - The FLAG Project at the Electronic Frontier Foundation (EFF) filed suit against the Department of Justice today, asking for records concerning the FBI's "Investigative Data Warehouse" (IDW) -- a huge database that contains hundreds of millions of entries of personal information.

According to the FBI, the IDW was developed to collect a wide swath of personal information -- like "photographs, biographical information, physical location information, and financial data" -- for use in anti-terrorism investigations. The FBI said earlier this year that there were over 560 million items in the IDW, and that nearly 12,000 law enforcement agents had access to the information. EFF filed its suit after the FBI failed to respond to two Freedom of Information Act (FOIA) requests for records disclosing the criteria for inclusion in the database and the current privacy policy protecting this sensitive information, among other critical issues.

The FBI has failed to file a public notice describing the database and the criteria for including personal information, as required by the Privacy Act of 1974.

"Americans deserve to know what information is collected under what circumstances, and who has access to it," said EFF Senior Counsel David Sobel, the director of the FLAG Project. "And what if this database contains false information about you? How would you correct that? These are serious questions that the FBI needs to answer."

EFF's FLAG Project, launched last month, uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy. A lawsuit filed earlier this month demanded that the FBI release records concerning DCS-3000 and Red Hook -- tools the FBI has spent millions of dollars developing for electronic surveillance of personal communications.

"The public needs as much information as possible to evaluate tools that put our privacy at risk," said EFF Staff Attorney Marcia Hofmann. "The Department of Justice must abide by the law and publicly release information about these surveillance programs."

For the FOIA complaint filed against the Department of Justice:
http://www.eff.org/flag/idw/IDW_complaint.pdf

For more on the FLAG Project:
http://www.eff.org/flag/

Contacts:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Related Issues:
October 3, 2006

Digital Cable and Satellite DRM Harms TV Fans and Innovators

San Francisco - Digital Video Recorders (DVRs) have changed the way millions of people watch television. But the new TiVo Series 3 for HD lacks a feature that past versions have had -- TiVoToGo, which allows users to move recorded shows to a computer or other device.

In a report released today, "Who Killed TiVoToGo?", EFF gets to the bottom of this digital murder mystery. The plot includes Hollywood, the Federal Communications Commission (FCC), and digital rights management (DRM) -- and it's an ominous tale for television fans looking forward to the widespread adoption of high-definition (HD) television.

"When you upgrade to HD TV, you will lose some of your favorite features on other digital devices," said EFF Activist Derek Slater, the report's author. "DRM restrictions won't stop 'Internet piracy,' but they will hamper your ability to watch recorded TV content wherever and whenever you choose."

Both digital cable and satellite providers must transmit their programming with DRM to satisfy Hollywood's demands -- and because of the Digital Millennium Copyright Act's (DMCA) restrictions on unlocking DRM even for lawful uses, innovators like TiVo have to get permission from Hollywood and the TV providers before creating compatible devices.

TiVo Series 3 HD is one of many new devices that replaces your typical cable set-top box by taking advantage of CableCARD technology. Because TiVo could not get permission to include the TiVoToGo feature in conjunction with CableCARD, the feature was removed.

"Had Hollywood and the TV providers obtained this kind of veto power years ago, the original TiVo might never have been created," said Slater. "Remember, Hollywood tried to stamp out DVRs when they first started to become widespread, suing DVR-maker ReplayTV into bankruptcy and comparing commercial-skipping to 'stealing.' TiVoToGo is the latest casualty in Hollywood's crusade against new technologies."

For the full report "Who Killed TiVoToGo?":
http://www.eff.org/IP/pnp/cablewp.php

To stop cable DRM from getting even worse:
http://action.eff.org/cablecard

Contact:

Derek Slater
Activist
Electronic Frontier Foundation
derek@eff.org

Related Issues:
October 3, 2006

FBI Withholds Records on Tools to Intercept Personal Communications

Washington, D.C. - The FLAG Project at the Electronic Frontier Foundation (EFF) filed its first lawsuit against the Department of Justice Tuesday after the FBI failed to respond to a Freedom of Information Act (FOIA) request for records concerning DCS-3000 and Red Hook -- tools the FBI has spent millions of dollars developing for electronic surveillance.

DCS-3000 is an interception system that apparently evolved out of "Carnivore," a controversial surveillance system the FBI used several years ago to monitor online traffic through Internet service providers. One Department of Justice report said DCS-3000 was developed to "intercept personal communication services delivered via emerging digital technologies" and that it was used "as carriers continue to introduce new features and services." According to the same report, Red Hook is a system to "collect voice and data calls and then process and display the intercepted information."

The FLAG Project first filed its FOIA request for information about the surveillance systems on August 11, 2006. The FBI acknowledged receipt of the request, but the agency has not responded within the time limit required by law.

"Recent allegations of domestic spying by the U.S. government already have both lawmakers and the general public up in arms. Americans have a right to know whether the FBI is using new technology to further violate their privacy," said EFF Staff Attorney Marcia Hofmann. "The Department of Justice needs to abide by the law and publicly release information about these surveillance tools."

EFF's FLAG Project, launched last month, uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy.

"Transparency is critical to the functioning of our democracy, especially when the government seeks to hide activities that affect the rights of citizens," EFF Senior Counsel David Sobel, who directs the FLAG Project. "We have recently seen numerous instances where federal agencies have sought to conceal surveillance activities that raise serious legal issues."

For the full FOIA suit filed against the Department of Justice:
http://www.eff.org/flag/dcs/dcs_complaint.pdf

For more on the FLAG Project:
http://www.eff.org/flag/

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
September 14, 2006

Subpoena Withdrawn After EFF Intervenes

San Francisco - San Francisco - The Embroidery Software Protection Coalition (ESPC) has dropped its attempt to unmask anonymous embroidery fans after the Electronic Frontier Foundation (EFF) intervened in the case.

The embroiderers used an online discussion group to share information about a long-running campaign to threaten purchasers of embroidery designs and software with copyright infringement lawsuits. ESPC filed defamation claims against some members of the group and then issued a subpoena for detailed personal information about every single person who joined the discussion group -- whether or not they had ever posted a single message.

"ESPC should have never filed this frivolous case in the first place. But we're pleased that ESPC now understands that it can't use the courts to intimidate those who want to talk about ESPC's ham-fisted tactics," said EFF Staff Attorney Corynne McSherry. "The First Amendment forbids such abusive use of the discovery process."

This case is the latest in EFF's long fight to protect anonymity online. EFF lawyers have represented or provided amicus support in anonymity cases in California, Colorado, and Delaware. Most recently, in Oklahoma, a school superintendent withdrew his attempt to unmask anonymous online critics after EFF filed a motion to quash his subpoena.

For more on this case:
http://www.eff.org/legal/cases/ESPC_v_Ebert/

Contact:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
September 14, 2006

Court Fight Continues As Princeton Researchers Demonstrate 'Vote Stealing'

San Francisco - The Electronic Frontier Foundation (EFF) has asked the 6th U.S. Circuit Court of Appeals to reject Ohio's latest attempt to dismiss a critical electronic voting case -- the final legal hurdle in the path to a thorough investigation of the state's widely criticized 2004 election and much needed reform.

"Ohio's procedures, like many used elsewhere across the country, simply don't do enough to protect voters from the serious vulnerabilities in the current generation of electronic voting equipment," said EFF Staff Attorney Matt Zimmerman. "It's time to let this important case go forward so that these critical problems can finally be resolved."

Last fall, EFF filed suit on behalf of voter Jeanne White against Ohio Secretary of State J. Kenneth Blackwell and Governor Bob Taft, alleging that they had abdicated their responsibilities to protect the fundamental right to vote of Ohio residents. When White voted on Election Day in 2004, the electronic voting machine she used malfunctioned, causing her vote to toggle from one candidate to another. White's problems were not isolated: other voters reported unacceptably long lines, inadequately trained pollworkers, and voting machines that failed to record their votes correctly. Similar problems were reported in the 2005 elections and in the May 2, 2006, primary, including a chaotic election in Cuyahoga County where election officials have launched a formal investigation.

In its brief, EFF argues that the widespread and deeply rooted failings in Ohio's voting system stem from incoherent and inadequate procedures, inconsistent standards, and lack of planning and training -- all of which raise serious questions about the basic fairness of the state's elections. The suit aims to require the state to dramatically increase the security and accuracy of its voting technology and related election procedures.

"The state claims that its election system merely exhibits 'garden variety' problems and that the blame for those should rest on pollworkers and other officials," said Zimmerman. "The governor and secretary of state of Ohio, however, have the ultimate duty of protecting citizens' fundamental right to vote. Instead of trying to avoid responsibility for a system in crisis, these officials need to step up to their responsibilities."

The lawsuit will also provide the best chance yet to demonstrate the true "in the field" performance record of electronic voting equipment, details of which are carefully controlled by election officials and voting equipment vendors. EFF's brief was filed on the same day that researchers at Princeton University released a critical new report demonstrating the ability to manipulate results on a Diebold electronic voting machine. The study, led by Professor Edward W. Felten, found that the machine was extremely vulnerable to "vote-stealing" attacks that would undermine the accuracy of vote counts.

EFF is working with co-counsel Kerger and Associates Zuckerman, Spaeder, Goldstein, Taylor &amp Kolker and Heller, Ehrman, White and McAuliffe, LLP, as it pursues this case.

For the full appellate brief:
http://www.eff.org/Activism/E-voting/ohio/intervenorsappellatebrief.pdf

For more on the Ohio suit:
http://www.eff.org/Activism/E-voting/ohio/

For more on the Professor Felten's research:
http://www.businessweek.com/ap/tech/D8K48IU80.htm

Related Issues:
September 12, 2006

How to Defend Yourself from Privacy Invasions Like AOL's Search Data Disaster

San Francisco - In the wake of AOL's publicly revealing customers' Internet search histories, the Electronic Frontier Foundation (EFF) has published "Six Tips to Protect Your Online Search Privacy."

AOL's recent disclosure of its users' search logs exposed the private lives of more than a half-million customers. But all the major search engines -- not just AOL -- record search queries and maintain massive databases that reach into the most intimate details of users' lives. When revealed to others, these details can be embarrassing and even cause great harm.

In the white paper released today, EFF instructs users on how to follow six privacy tips:

* Don't put personally identifying information like your name, address, credit card number, or Social Security number in your searches.

* Don't use a search engine operated by your Internet service provider (ISP).

* Don't log in to your search engine or its related services. So, if you have accounts with services like GMail or Yahoo! Mail, don't use Google or Yahoo!'s search engines, respectively. Or, use one browser for your searches and a different browser for your other activities.

* Block "cookies" from your search engine.

* Vary your IP address.

* Use web proxies and anonymizing software that masks your IP address and other information that can be used to track you.

"These six steps provide a strong shield against the most common and probable threats to your Internet search privacy," said EFF Staff Technologist Peter Eckersley.

Protecting search privacy is a particularly acute problem because of ambiguity in current law and the lack of transparency in search providers' data logging practices. Recently, EFF asked the Federal Trade Commission to investigate AOL and require changes in its privacy practices.

"Until Congress clarifies the law and strengthens protections for this sensitive data, self-defense is the best defense," said EFF Staff Attorney Kevin Bankston. "Congress should hold hearings and demand clear answers from the search providers about how they handle search histories."

For the full white paper:
http://www.eff.org/Privacy/search/searchtips.php

For more on the AOL data release:
http://www.eff.org/Privacy/AOL/

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Peter Eckersley
Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Related Issues:
September 11, 2006

Two Noted Attorneys Lead New FLAG Project in Washington, D.C.

Washington, D.C. - The Electronic Frontier Foundation (EFF) today launched a project to shed light on government surveillance activities. The FLAG Project, based at EFF's new Washington, D.C. office, will use Freedom of Information Act (FOIA) requests and litigation to expose the government's expanding use of technologies that invade Americans' privacy.

The Freedom of Information Act is a statute that compels the government to disclose details about its activities. EFF's FOIA requests will zero in on collection and use of information about Americans, the increasing cooperation between the government and the private sector, and federal agencies' development and use of new information technologies. The FLAG Project -- for FOIA Litigation for Accountable Government -- is spearheaded by two experienced Freedom of Information specialists: Senior Counsel David Sobel and Staff Attorney Marcia Hofmann.

"National security and law enforcement demand some level of government secrecy, but too much can enable abuses of power," said Sobel, who will direct EFF's new project. "The NSA's illegal spying program and other recent revelations show that the government has radically expanded its surveillance of ordinary Americans, obtaining untold access to the details of our everyday lives."

"While the government has increased its monitoring of its citizens, it's also stepped up efforts to block public scrutiny," said Hofmann. "The public deserves to know what the government is doing, so that it can keep abuses of power in check and challenge violations of privacy."

In his 25-year career, Sobel has handled numerous cases seeking the disclosure of government documents on privacy policy, including electronic surveillance, encryption controls and airline passenger screening initiatives. He served as co-counsel in the challenge to government secrecy concerning post-September 11 detentions and participated in the submission of a civil liberties amicus brief in the first-ever proceeding of the Foreign Intelligence Surveillance Court of Review. In 1994, Sobel co-founded the Electronic Privacy Information Center (EPIC). Hofmann is the former Director of EPIC's Open Government Project, where she was lead counsel in several FOIA lawsuits. Documents made public though her work have been reported by the New York Times, Washington Post, National Public Radio, Fox News, and CNN, among others.

"EFF is thrilled to be working with David and Marcia," said EFF Executive Director Shari Steele. "They have a peerless track record of uncovering and widely publicizing government activities that raise significant privacy and civil liberties issues, and they will enable EFF to have more of a Washington, D.C. presence. We're so happy they have joined our legal team."

EFF will make significant FOIA disclosures available to the public, the media, and policymakers. EFF will also strategically litigate FOIA lawsuits against government agencies to develop precedents that will benefit all FOIA requesters.

To reach the FLAG Project:
Electronic Frontier Foundation
1875 Connecticut Ave., NW Suite 650
Washington, DC 20009
+1 202 797-9009

For more on the FLAG Project:
http://www.eff.org/flag/

Contacts:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

Related Issues:
September 7, 2006

National Conference Call: Thursday, 2:30pm ET

San Francisco - Dozens of companies from the technology and telecommunications sector, public interest groups, and library associations have banded together with the Electronic Frontier Foundation (EFF) to fight a proposed treaty that would grant broadcasters and cablecasters a new 50-year intellectual property right in their transmissions, regardless of whether they own the copyright in the content being transmitted. The treaty would radically change U.S. law, create liability concerns for Internet service providers and device manufacturers, interfere with the rollout of broadband and home networking services, and restrict citizens' access to information and public domain material.

Thursday's conference call will be hosted by Washington, D.C., public interest group Public Knowledge. Other participants will include EFF International Affairs Director Gwen Hinze, Verizon Communications' Vice President Sarah Deutsch, Senior Vice President of Government Affairs of the Consumer Electronics Association (CEA) Michael Petricone, and others.

WHAT: Conference call opposing broadcast treaty

WHO: Representatives from EFF, Public Knowledge, Verizon, CEA, and others

WHEN: Thursday, September 7 2:30pm ET

RSVP for phone number and passcode: rebecca@eff.org or abrodsky@publicknowledge.org

For the joint statement by 36 groups in opposition to the broadcast treaty:
http://www.eff.org/IP/WIPO/broadcasting_treaty/wipo-statement-20060905.pdf

Contacts:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

Related Issues:
August 31, 2006

Groundbreaking Bill Waits for Governor's Signature

Sacramento - The California State Senate passed tough new privacy safeguards late yesterday for use of "tag and track" devices known as Radio Frequency Identification (RFID) chips embedded in state identification cards. The bill helps ensure that Californians can control the personal information contained on their drivers' licenses, library cards and other important ID documents.

The State Assembly passed the Identity Information Protection Act (Senate Bill 768), authored by Senator Joe Simitian (D-Palo Alto), earlier this month. Governor Schwarzenegger has until September 30 to sign the bill into law. The legislation is sponsored by the Electronic Frontier Foundation (EFF), the ACLU, and the Privacy Rights Clearinghouse, and it is supported by groups ranging from the AARP to the California Alliance Against Domestic Violence to the Gun Owners of California.

"Without security safeguards, RFID tags can expose you to identity theft, covert tracking, and stalking," said EFF Senior Staff Attorney Lee Tien. "This bill is a good first step toward ensuring that critical state-issued IDs don't leak your personal information."

RFID tags are tiny devices connected to miniature antennae that can be used to store and transmit personal information. When an RFID reader emits a radio signal, RFID tags respond with their stored information. The federal government has decided to embed RFID tags in new U.S. passports, and states across the country are considering their use in ID cards. The Identity Information Protection Act has drawn national attention as a model for future privacy-protecting laws in other states.

"RFID technology is not in and of itself the issue. The issue is whether and under what circumstances the government should be allowed to compel its residents to carry technology that broadcasts their most personal information," said Senator Simitian. "This bill provides a thoughtful and rational policy framework for making those decisions. I hope the Governor agrees."

EFF's Identity Information Protection Act fact sheet:
http://www.eff.org/Privacy/Surveillance/RFID/sb768_fact_sheet.php

For more on RFID:
http://www.eff.org/Privacy/Surveillance/RFID/

Contact:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Related Issues:
August 24, 2006

Lawsuit Fights Baseless Copyright, Trademark Threats

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal court Wednesday to protect the free speech rights of a website publisher who has suffered years of baseless legal threats over his parody of the Barney and Friends television show.

Since 2002, the Lyons Partnership has repeatedly sent meritless cease-and-desist letters to Stuart Frankel because his website pokes fun at Barney the purple dinosaur, the well-known children's television character. Dr. Frankel, assisted by EFF, responded to these letters in 2002 and 2005, but Barney's lawyers have continued to harass him. The lawsuit filed by Dr. Frankel asks the court to finally resolve the matter by declaring that his parody does not infringe Barney's copyright or trademark rights.

"Barney's lawyers are sending out intimidating lawyer letters to parody websites that are clearly protected by the First Amendment and fair use," said EFF Senior Staff Attorney Fred von Lohmann. "It's time for Barney to call off his lawyer armies and get back to entertaining children."

Barney's lawyers have a history of using copyright and trademark laws as a pretext for censorship. In fact, EFF itself received such a warning in 2001 after archiving a copy of a different Barney parody on its site.

"The misuse of intimidating cease-and-desist letters for censorship is a growing problem online," said EFF Staff Attorney Corynne McSherry. "We hope this lawsuit sends a message to Barney's owners and other corporations to think twice before sending baseless threat letters."

EFF has long defended digital artists' rights to build upon other creative works. During the 2004 election campaign, EFF helped protect JibJab Media, Inc., and its animation "This Land" after Ludlow Music claimed the work infringed the copyright of Woody Guthrie's song "This Land Is Your Land."

EFF is being assisted in this case by Elizabeth Rader, an attorney with the San Francisco office of Akin, Gump, Strauss, Hauer &amp Feld LLP, which is defending Dr. Frankel's free speech rights on a pro bono basis.

For the full complaint:
http://www.eff.org/legal/cases/barney/frankel_v_lyons_complaint.pdf

For more on Barney's copyright abuses:
http://www.eff.org/legal/cases/barney/

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

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August 23, 2006

EFF Asks Supreme Court to Protect Open Source Innovation

San Francisco - The Electronic Frontier Foundation (EFF) has asked the United States Supreme Court to overturn a dangerous patent law ruling that could pose a serious threat to Free and Open Source Software projects.

In a recent decision, the Federal Circuit Court of Appeals affirmed its own "suggestion test" as the main method for determining when a patent should be found obvious over knowledge in the public domain. Under this test, even the most obvious incremental advances and add-ons can be patented unless the Patent Office or a defendant in court produces a document that shows someone else suggested it prior to the patent being filed.

"The Federal Circuit's suggestion test forces litigants to search through reams of technical papers for a document in which someone, somewhere, bothers to state the obvious," said EFF Staff Attorney Corynne McSherry, who co-authored the amicus brief. "This is inefficient and burdensome, and contrary to the principles, policies, and standards the Supreme Court has upheld."

In its amicus brief filed Tuesday, EFF shows how this "suggestion test" has led to a massive surge in bogus patenting, especially in software. These bad patents then become weapons against legitimate innovators -- especially those working on Free and Open Source Software projects.

"Free and Open Source Software projects have become an integral part of the software industry and our nation's economy," said EFF Staff Attorney Jason Schultz, a co-author of the brief. "They often lack the resources or formal documentation to fight against bogus patents under the suggestion test, so it is principally important that the Supreme Court set the appropriate standard to prevent the approval of bogus patents."

The case, KSR International Co. v. Teleflex, Inc., and Technology Holding Co., is scheduled for oral argument in front the Supreme Court this fall.

For the full amicus brief:
http://www.eff.org/legal/cases/KSR_v_Teleflex/ksr_amicus.pdf

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

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August 14, 2006

Internet Company's Publication of Search Logs Exposes Customers' Private Lives

Washington, D.C. - The Electronic Frontier Foundation (EFF) today asked the Federal Trade Commission (FTC) to investigate America Online (AOL) and require changes in its privacy practices, after the company recently released search history logs that exposed the private lives of more than a half-million of its customers.

Last week, news reports revealed that AOL published to the Internet three months of search queries from about 650,000 users. In its complaint, EFF argues that the release of this data violated AOL's privacy policy and the Federal Trade Commission Act and should be investigated. EFF further requests that the FTC require AOL to notify customers affected by the disclosure and to stop logging search data except where absolutely necessary.

"Search terms can expose the most intimate details of a person's life -- private information about your family problems, your medical history, your financial situation, your political and religious beliefs, your sexual preferences, and much more," said EFF Staff Attorney Marcia Hofmann. "At the very least, AOL should notify every customer whose privacy has been jeopardized by the company's careless handling of this incredibly private information, and AOL should not store this kind of data in the future when it doesn't have to."

While AOL has removed the data from its own web site, the data is still freely available from other sites on the Internet. And although specific AOL screen names were not released, the data is associated with unique ID numbers, allowing each user's search terms to be grouped together. Whether because of users' searches for their own names or MySpace profiles, or searches related to their cities and neighborhoods, these search histories can expose -- and in some cases, already have exposed -- particular users' private searches to the world. In support of its complaint, EFF confidentially submitted examples of search queries containing personally identifiable information and search histories that could likely be tied to particular AOL subscribers.

"We've asked the FTC to make sure that AOL rectifies the damage that's been done and improve its privacy protections for the future," said EFF Staff Attorney Kevin Bankston. "But this problem isn't limited to AOL -- every search company stores this kind of data. Hopefully, AOL's shocking violation of its users' privacy will spur Congress to clarify that the same law that prevents these companies from disclosing our personal emails also applies to our search logs."

For the FTC complaint:
http://www.eff.org/Privacy/AOL/aol_ftc_complaint_final.pdf

For more on the AOL data release:
http://www.eff.org/Privacy/AOL/

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

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August 10, 2006

RIAA Should Pay Victim's Legal Costs in Baseless Suit

San Francisco - The Electronic Frontier Foundation (EFF), along with the American Association of Law Libraries, the ACLU, and Public Citizen, filed a brief with an Oklahoma district court Thursday, strongly urging a judge to award the innocent target of a file-sharing lawsuit the cost of her attorney's fees in battling the baseless allegations of the Recording Industry Association of America (RIAA).

The RIAA sued Deborah Foster in November of 2004, accusing her of illegally downloading copyrighted material. Foster denied the allegations and fought back in court, and the case was dismissed. But many others who are falsely accused accept settlement offers from the RIAA because the cost of settling the case is less than what they might spend defending themselves.

"The RIAA has forced many innocent Americans through an expensive and emotionally draining process to clear their names. Some, understandably, just give up," said EFF Staff Attorney Jason Schultz. "Deborah Foster fought a brave battle against unjust charges, and she deserves to have her attorney's fees reimbursed."

So far, the RIAA has sued over 18,000 individuals for allegedly sharing music over the Internet. But the industry uses slapdash investigative methods to find its targets, and so innocent people as well as guilty ones can find themselves entangled in an expensive and draining process. One recent victim was a woman who didn't even own a computer. Another lawsuit target was deceased. If Ms. Foster is awarded attorney's fees, it will encourage future innocent victims to stand up for themselves in court.

"Innocent victims of meritless lawsuits have the right to fight back," said Schultz. "The RIAA needs to know that it can't continue its sloppy campaign without regard to the people ensnared by it."

The amicus brief was filed in the western district of Oklahoma with the assistance of attorney A. Laurie Koller of Carr &amp Carr.

For the full amicus brief:
http://www.eff.org/legal/cases/Capitol_v_Foster/amicus_in_support_of_fees.pdf

For more on the RIAA's lawsuits:
http://www.eff.org/IP/P2P/RIAAatTWO_FINAL.pdf

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

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August 9, 2006

EFF Battles Heavy-Handed Tactics in Copyright Lawsuit

San Francisco - The Electronic Frontier Foundation (EFF) has filed a motion to block a brazen attempt to unmask the identities of anonymous members of an online discussion group for embroidery fans.

The online group was created to share information about a long-running campaign to threaten purchasers of embroidery designs and software with copyright infringement lawsuits. The Embroidery Software Protection Coalition (ESPC), a purported coalition of embroidery pattern design companies, is behind the heavy-handed campaign. Last month, ESPC filed defamation claims against some members of the group and then issued a subpoena for detailed personal information about every single person who joined the discussion group -- whether or not they had ever posted a single message.

"ESPC's shotgun approach is aimed not at redressing defamation, but at intimidating those who have sought to raise public awareness of its ham-fisted tactics," said EFF Staff Attorney Corynne McSherry. "The First Amendment forbids such abusive use of the courts and the discovery process."

This case is the latest in EFF's long fight to protect anonymity online. EFF lawyers have represented or provided amicus support in anonymity cases in California, Colorado, and Delaware. Most recently, in Oklahoma, a school superintendent withdrew his attempt to unmask anonymous online critics after EFF filed a motion to quash his subpoena.

"The right to engage in anonymous communication is fundamental to a free society," said McSherry. "It's critical that judges resist these attempts to turn courtrooms into vehicles to harass and intimidate people out of speaking their minds. Thankfully, court after court has recognized that plaintiffs can't pierce anonymity just because they don't like what someone has said."

For EFF's motion to quash:
http://www.eff.org/legal/cases/ESPC_v_Ebert/

For more on anonymity online:
http://www.eff.org/Privacy/Anonymity/

Contact:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

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July 21, 2006

Ruling Comes as Senators Consider Dramatic Changes to Surveillance Law

San Francisco - A federal judge has refused to dismiss the Electronic Frontier Foundation's (EFF's) case against AT&ampT for collaborating with the NSA in illegal spying on millions of ordinary Americans, setting the stage for a congressional showdown over proposed dramatic changes in federal surveillance law.

EFF filed the class-action suit against AT&ampT in January, alleging that the telecommunications company has given the National Security Agency (NSA) secret, direct access to the phone calls and emails going over its network and has been handing over communications logs detailing the activities of millions of ordinary Americans. The government intervened in the case and asked that it be dismissed because the suit could expose "state secrets." But Thursday, U.S. District Judge Vaughn Walker refused: "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

"We are gratified that Judge Walker rejected the government's overbroad claims of secrecy, and that our case on behalf of AT&ampT customers can go forward," said EFF Staff Attorney Kevin Bankston. "Judge Walker correctly found that the government, after having already admitted to and extensively commented on the NSA's spying program, cannot now claim that it is a secret and sweep AT&ampT's role under the rug."

EFF's victory against government secrecy, however, comes in the shadow of a legislative proposal that could spell trouble for court challenges against the NSA program. Last week, Pennsylvania Senator Arlen Specter and the White House announced a deal on legislation that could lead the government to attempt to shuffle EFF's lawsuit and other challenges out of the traditional court system and into a secret court created by the Foreign Intelligence Surveillance Act (FISA). Until now, the FISA court's only job has been to approve secret surveillance requests by the government, in proceedings where only government lawyers get to argue.

"A decision to bury these cases in the shadowy FISA court would not only violate our nation's tradition of open judicial proceedings, it's also unnecessary," said EFF Staff Attorney Kurt Opsahl. "As Judge Walker demonstrated today, the conventional court system is perfectly capable of handling these cases and can do so by balancing the public's need for transparency with proper protections for security. Any bill that would attempt to sweep these cases into the secret court should be rejected."

Judge Walker has requested that the parties submit briefs by July 31 on how the case should proceed if the government and AT&ampT appeal his decision as expected, and a hearing will take place August 8. Also, on July 27, a panel of judges will consider whether to consolidate this case with others challenging the illegal spying program.

For a recording of EFF's teleconference after the ruling:
http://www.eff.org/legal/cases/att/07202006_press_conference.mp3

For the judge's full decision:
http://www.eff.org/legal/cases/att/308_order_on_mtns_to_dismiss.pdf

For key quotes from the decision:
http://www.eff.org/deeplinks/archives/004833.php

For more on the draft surveillance bill:
http://www.eff.org/news/archives/2006_07.php#004824

For more on the AT&ampT lawsuit:
http://www.eff.org/legal/cases/att/

Contacts:

Derek Slater
Acting Media Coordinator
Electronic Frontier Foundation
derek@eff.org

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July 21, 2006

EFF and Libraries Support Google Image Search Against Adult Website

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of library organizations filed a brief with the Ninth Circuit Court of Appeals in San Francisco on Thursday supporting Google Image Search in a showdown over critical digital copyright issues.

Adult entertainment publisher Perfect 10 claims that Google's Image Search service violates copyright law by indexing Perfect 10 photos posted on unauthorized websites, then making and delivering thumbnail images of those photos in its search results. Perfect 10 also contends that Google should be held liable for any copyright infringement that occurs on sites that Google links to.

"Perfect 10 wants to hold Google responsible for the misdeeds of the websites it links to," said Senior Intellectual Property Attorney Fred von Lohmann. "No search engine could survive if that were the rule, nor, for that matter, could most bloggers or other web publishers. If Perfect 10 succeeds in convincing the court that in-line linking and framing of images constitutes a public display or distribution of copyrighted work, then millions of web publishers and bloggers will suddenly be on the wrong side of copyright law -- as well as the millions of web users who may follow a link to a website with infringing content."

The case is on appeal from a lower court ruling issued in February 2006 that ordered Google to remove links to certain websites containing Perfect 10 photographs pending the outcome of the case. Experts, however, widely viewed the ruling as a victory for Google, as the court rejected many of Perfect 10 arguments.

Because the appeal promises to clarify the copyright rules that apply to search engines and other web publishers who link to content on the Internet, it has attracted the attention of the recording industry, motion picture studios, professional photographers, and the technology sector, each of which has also filed briefs in the case.

EFF's amicus brief was filed on behalf of EFF and the Library Copyright Alliance. Members of LCA include the American Library Association, the Medical Library Association, the American Association of Law Libraries, the Association of Research Libraries, and the Special Libraries Association.

A ruling in this case is not expected for several months.

For the full amicus brief:
http://www.eff.org/legal/cases/Perfect10_v_Google/EFFPerfect10vGoogleAmicus.pdf

For more on Perfect 10 v. Google:
http://www.eff.org/legal/cases/Perfect10_v_Google/

Deep Link providing analysis of the lower court ruling:
http://www.eff.org/deeplinks/archives/004433.php

Contacts:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

July 21, 2006

Government Needs a Warrant to Get Dialed Digits That Are Call Content

In the first ruling of its kind, a federal magistrate judge has held that the government must obtain a search warrant to collect the content of a telephone call, even when that content is dialed digits like bank account numbers, social security numbers or prescription refills. The decision from Magistrate Judge Smith in Houston closely follows the reasoning outlined in an amicus brief from the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT).

The Texas judge invited EFF to file the brief in response to requests from government investigators to use a "pen register" or "trap and trace device" to collect all numbers dialed on a phone keypad after a call has been connected. Investigators can typically get "pen/trap" orders under a legal standard much lower than the "probable cause" required for a typical phone-tapping warrant, because only phone numbers used to connect the call are collected, not the content of the phone call itself.

However, the judge found that when it comes to dialed numbers that represent call content, federal statutes require that investigators either get a probable cause warrant or use filtering technology to ensure that only dialed phone numbers are collected. In fact, according to the court, "Congress ordered law enforcement to do just that, 12 years ago, yet the court notes that the government's current practice is to collect all dialed digits without using any filtering technology."

"Judge Smith correctly recognized that the privacy protections for your phone calls shouldn't depend on whether the information you are communicating is spoken or dialed," said EFF Staff Attorney Kevin Bankston. "Whether it's your bank account number, your social security number, your prescription refill, or even your vote for American Idol, the government has to get a search warrant to tap the numbers you dial after your call has been connected. Allowing such taps without a warrant not only violates longstanding statutes, as the court found here, but the Constitution itself--which makes it all the more troubling that government investigators have been collecting such information without a warrant for years."

In the same opinion, Judge Smith also rejected a new government request to track the location of someone's cell phone without a warrant. EFF has briefed two other courts on the cell-tracking issue, which has been a continuing controversy since Judge Smith and another judge in New York first published decisions on the issue last fall. Those decisions revealed that government investigators had routinely been tracking cell phones for years without getting warrants based on frivolous legal arguments.

For the judge's decision:

http://www.eff.org/legal/cases/Pen_Trap/Smith_dialed_digit_decision.pdf

For EFF and CDT's amicus brief:

http://www.eff.org/legal/cases/Pen_Trap/EFF-and-CDT-Amicus.pdf

Contact:

Kevin Bankston

Staff Attorney

Electronic Frontier Foundation

bankston@eff.org

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