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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

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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

Related Issues:
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

Related Issues:
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

Related Issues:
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

Related Issues:
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

Related Issues:
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

Related Issues:
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

Related Issues:
July 20, 2006

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

San Francisco - 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

July 20, 2006

San Francisco - A federal judge today denied the government's motion to dismiss the Electronic Frontier Foundation's (EFF's) case against AT&ampT for collaborating with the NSA in illegal spying of millions of ordinary Americans. This allows the case to go forward in the courts.

EFF Staff Attorney Kevin Bankston, EFF Legal Director Cindy Cohn, and Robert Fram of Heller Ehrman LLP will analyze the ruling and answer questions in a conference call at 1:30pm.

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.

For the conference call audio:
http://www.eff.org/legal/cases/att/07202006_press_conference.mp3

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

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

Contacts:

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

John J. Buchanan
Director of Communications
Heller Ehrman LLP
john.buchanan@hellerehrman.com

Related Issues:
July 19, 2006

Subpoena Withdrawn After EFF Intervenes

Tulsa, Oklahoma - An Oklahoma school superintendent has dropped his attempt to unmask the identities of a website operator and all registered users of an Internet message board devoted to discussion of local public schools after the Electronic Frontier Foundation (EFF) intervened in the case.

Jerry Burd, superintendent of the Sperry, Oklahoma, school district, had sued anonymous speakers who criticized him on an online message board. As part of the case, he filed a broad subpoena seeking to identify the site's creator and everyone who had posted or even registered on the site, violating First Amendment protections for anonymous speech and association. Working with Tulsa attorneys Greg Bledsoe and Curtis Parks, EFF filed a motion to quash the subpoena on behalf of the site's operator and a registered user. The superintendent responded by dismissing the case on Monday.

"We're disappointed that Mr. Burd filed this frivolous case in the first place, but we're pleased that he finally recognized that it's wrong to use the discovery process to try to scare his critics into silence," said EFF Staff Attorney Corynne McSherry. "Free-ranging public debate and criticism is essential to promoting effective and responsive public schools."

The Oklahoma case is the latest win for EFF in preserving anonymity in online speech. In recent months, EFF lawyers have represented or provided amicus support in anonymity cases in California, Colorado, and Delaware.

"The right to engage in anonymous communication is fundamental to a free society," said Staff Attorney Matt Zimmerman. "It's critical that judges resist attempts by anyone -- public officials especially -- to turn courtrooms into vehicles to harass and intimidate people out of speaking their minds. Thankfully, court after court has recognized that a plaintiff doesn't have an automatic right to pierce anonymity just because he doesn't like what someone has said."

For EFF's full motion to quash the subpoena:
www.eff.org/legal/cases/Burd_v_Cole/Mtn-to-Quash.pdf

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

Contacts:

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

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

Related Issues:
July 14, 2006

Bill Threatens Future of EFF Case and Other Legal Challenges

San Francisco - Senate Judiciary Committee Chairman Arlen Specter said today that he has negotiated a proposed bill with the White House regarding the NSA's illegal spying program. While the final bill is not public, a draft of the bill obtained by the Electronic Frontier Foundation (EFF) is a sham compromise that would cut off meaningful legal review -- sweeping current legal challenges out of the traditional court system and failing to require court review or congressional oversight of any future surveillance programs.

"This so-called compromise bill is not a concession from the White House -- it's a rubber stamp for any future spying program dreamed up by the executive," said EFF Staff Attorney Kevin Bankston. "In essence, this bill threatens to make court oversight of electronic surveillance voluntary rather than mandatory."

Although the bill creates a process for the executive branch to seek court review of its secret surveillance programs, it doesn't actually require the government to do so. The bill would, however, require that any lawsuit challenging the legality of any classified surveillance program -- including EFF's class-action suit against AT&ampT -- be transferred, at the government's request, to the FISA Court of Review, a secret court with no procedures for hearing argument from anyone but the government. The bill would further allow the government to prevent the court from disclosing any information about the government's surveillance programs to opposing counsel, regardless of the court's strict security procedures.

"When the privacy of millions of Americans is at stake, we deserve more than a closed hearing by a secret court," said EFF Senior Staff Attorney Lee Tien.

For the draft of the Specter bill:
http://www.eff.org/Privacy/Surveillance/NSA/specter_draftbill_071406.pdf

Contacts:

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

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

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


[Updated: 7/18 to include latest available Specter bill draft]

Related Issues:
July 3, 2006

Investigators Need a Warrant to Get Call Content

San Francisco - The Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT) filed an amicus brief last Friday arguing that the government needs a warrant to collect the content of a telephone call, even if that content came from digits dialed on a phone keypad.

A federal magistrate judge in Texas asked 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 information entered using the buttons on a telephone (including, for example, bank account numbers or prescription refill requests). A "pen/trap" order must meet a lower standard of judicial review than a typical phone-tapping warrant, because only telephone numbers dialed from a certain phone -- not the content of the phone call itself -- are normally collected.

In their brief, EFF and CDT ask the judge to continue denying the orders and argue that the government's request cannot be granted without violating federal wiretap law and the Fourth Amendment.

"After the phone call has been connected, the pen/trap device's job is over," said EFF Senior Staff Attorney Lee Tien. "The numbers that you enter through the keypad to fill a prescription or join a meeting are just like the words or passcodes you say when there's no keypad option. They cannot be retrieved without meeting stringent probable cause requirements."

Until Magistrate Judge Smith asked for the brief, these pen/trap requests were unknown to the public. The judge previously asked EFF to respond to the government's secret requests to track cell phone locations without a warrant based on probable cause. Judge Smith as well as several other magistrates around the country have now held that the government cannot track cell phone locations unless it can show probable cause and a judge finds good reason to believe that criminal activity is afoot.

"Just as in the cell tracking cases, the government has tried to hide its baseless arguments from public scrutiny," said EFF Staff Attorney Kevin Bankston. "We commend Judge Smith for taking these issues seriously and allowing EFF to offer a response to the government's contrived reasoning."

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

Contacts:

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

John Morris
Center for Democracy and Technology
jmorris@cdt.org

Related Issues:
June 30, 2006

EFF Defends Web Host and 'John Doe' Critic of School Superintendent

Tulsa, Oklahoma - The Electronic Frontier Foundation (EFF) yesterday filed to block an Oklahoma school superintendent's attempt to unmask the identities of a local website's operator and all registered users.

The superintendent has sued Internet users who criticized him on the website's message board. In its motion to quash, EFF argues that the plaintiff's overbroad subpoena seeking to identify the site's operator and users violates First Amendment protections for anonymous speech and association.

"Anonymity is critical to public discourse and fundamental to a free society, allowing speakers to offer diverse views without fear of undue reprisal," said EFF Staff Attorney Corynne McSherry. "There is now clear judicial consensus that subpoenas to identify anonymous speakers must be carefully scrutinized."

In recent months, EFF lawyers have represented or provided amicus support in anonymity cases in California, Colorado, and Delaware. In the latter case, Doe v. Cahill, EFF helped successfully defend a Delaware blogger who had criticized a member of the town council. The case resulted in the first state supreme court decision confirming the First Amendment right to remain anonymous until a litigant can demonstrate a legitimate claim.

"Litigants must not be permitted to abuse the judicial process to identity anonymous individuals who have simply created a forum for critical comments or made statements a plaintiff dislikes," said EFF Staff Attorney Matt Zimmerman. "Speech critical of public officials -- made anonymously or not -- enjoys an extremely high level of legal protection."

Oral argument on EFF's motion to quash is scheduled for July 20th.

For EFF's motion to quash:
http://www.eff.org/legal/cases/Burd_v_Cole/Mtn-to-Quash.pdf

Contacts:

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

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

Related Issues:
June 23, 2006

Judge Hears Arguments on 'State Secrets Privilege' and Customer Privacy

San Francisco - The Electronic Frontier Foundation (EFF) told a federal judge today that the government should not be allowed to use the "state secrets privilege" to preempt the class-action lawsuit against AT&ampT.

EFF's suit accuses AT&ampT of collaborating with the National Security Agency (NSA) in illegally spying on millions of Americans -- handing over customers' telephone and Internet records and communications without any legal authority. Department of Justice lawyers argued today that even if the NSA program is illegal, pursuing the case might expose "state secrets." However, EFF attorneys asked the judge to allow the case to proceed, considering the privilege in regards to specific evidence and situations instead of derailing the suit all together.

"We have shown that AT&ampT is diverting traffic wholesale to the NSA," said EFF Staff Attorney Kurt Opsahl. "It is not a secret, and it is no reason to deny AT&ampT customers the opportunity to show the court that this dragnet surveillance program violates the law and their privacy rights."

U.S. District Judge Vaughn Walker also heard motions to dismiss from AT&ampT Inc. and AT&ampT Corp. Additionally, Walker heard requests from media groups to intervene and unseal critical evidence filed in the lawsuit.

"We can be safe, secure, and keep within the rule of law," said EFF Staff Attorney Kevin Bankston. "Our legal system demands that the court decide whether this wholesale surveillance program is proper."

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

Contact:

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

Related Issues:
June 20, 2006

EFF Argues Against Broad Subpoena for User Identities

San Francisco - The Electronic Frontier Foundation (EFF) argued Tuesday that a battle between Internet real estate services over copyrighted images should not threaten the rights of users to surf web pages and send emails anonymously.

The case began when CoStar, a real estate information database, subpoenaed LoopNet, an online real estate forum, over copyrighted photographs that appeared on LoopNet's service. However, CoStar demanded not only the identification of the uploaders of the offending images, but also identification of "downloaders" -- using a dangerously broad definition that includes both those who simply view the photos online and those who merely email links to the photos to others.

"If upheld, this subpoena would pierce the anonymity of virtually anyone who has ever received, forwarded, or clicked on a link to a webpage that happened at one time to contain a thumbnail of a photograph to which CoStar owns the copyright," said EFF Staff Attorney Corynne McSherry.

"Courts have long recognized that the right to engage in anonymous communication is fundamental to a free society," said EFF Staff Attorney Jason Schultz. "CoStar wants to strip Internet users of that anonymity just because they clicked on a link."

The next hearing in CoStar v. LoopNet is set for August 2.

For the full amicus brief:
http://www.eff.org/legal/cases/Costar_v_Loopnet/EFF_amicus_costar_v_loopnet.pdf

Contacts:

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

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

Related Issues:
June 20, 2006

Friday Hearing Over Motions to Dismiss AT&ampT Surveillance Case

San Francisco - On Friday, June 23, at 9:30 a.m., a federal judge in San Francisco will hear oral arguments on the U.S. government's motion to dismiss 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 government contends that even if the NSA program is illegal, the lawsuit should not go forward because it might expose state secrets.

The judge will also consider AT&ampT's motions to dismiss the case in Friday's hearing. Additionally, he will hear requests from media organizations to intervene and unseal critical evidence filed in the lawsuit.

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

WHAT:
Hepting v. AT&ampT

WHEN:
June 23, 9:30 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:
June 1, 2006

Judges Agree with EFF Brief in DirecTV Case

San Francisco - The 11th Circuit Court of Appeals has corrected a dangerous lower court ruling that threatened Internet privacy. In doing so, it preserved the privacy of password-protected websites as well as the right to read public sites. The decision followed the arguments made in an amicus brief filed by the Electronic Frontier Foundation (EFF).

"A real privacy disaster was averted today," said EFF Staff Attorney Kevin Bankston, who authored the brief. "The court affirmed important legal protections for truly private websites, and also protected your right to read public content on the Internet without getting sued."

The case began when Michael Snow, the publisher of an anti-DirecTV website, sued the company for unauthorized access under the Stored Communications Act (SCA). Snow's site had a banner and purported Terms of Service forbidding DirecTV representatives from entering the site or using its message board, but it was configured such that anyone in the public could do so.

A lower court had rightly dismissed the case, but for the wrong reasons -- holding that the SCA did not protect websites at all, even if they were configured to be private. However, the 11th Circuit clarified that websites are protected by the SCA, except when they are designed to be readily accessible to the general public.

"Through the World Wide Web, individuals can easily and readily access websites hosted throughout the world. Given the Web's ubiquitous and public nature, it becomes increasingly important in cases concerning electronic communications available through the Web for a plaintiff to demonstrate that those communications are not readily accessible," the opinion reads. "If by simply clicking a hypertext link, after ignoring an express warning, on an otherwise publicly accessible webpage, one is liable under the SCA, then the floodgates of litigation would open and the merely curious would be prosecuted. We find no intent by Congress to so permit."

For the full opinion:
http://www.eff.org/legal/cases/Snow_v_DirecTV/200513687.pdf

For EFF's brief:
http://www.eff.org/legal/cases/Snow_v_DirecTV/EFF_amicus.pdf

Contact:

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

Related Issues:
May 26, 2006

EFF Arguments Secure Reporters' Privilege for Internet News Gatherers

San Jose - A California state appeals court ruled in favor of the Electronic Frontier Foundation's (EFF's) petition on behalf of three online journalists Friday, holding that the online journalists have the same right to protect the confidentiality of their sources as offline reporters do.

"Today's decision is a victory for the rights of journalists, whether online or offline, and for the public at large," said EFF Staff Attorney Kurt Opsahl, who argued the case before the appeals court last month. "The court has upheld the strong protections for the free flow of information to the press, and from the press to the public."

In their decision, the judges wrote: "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

The case began when Apple Computer sued several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product to online news sites PowerPage and AppleInsider. As part of its investigation, Apple subpoenaed Nfox -- PowerPage's email service provider -- for communications and unpublished materials obtained by PowerPage publisher Jason O'Grady. A trial court upheld the subpoena.

But Friday, the court said that O'Grady is protected by California's reporter's shield law, as well as the constitutional privilege against disclosure of confidential sources. The court also agreed with EFF that Apple's subpoena to email service provider Nfox was unenforceable because it violated the federal Stored Communications Act, which requires direct subpoenas of account holders.

"In addition to being a free speech victory for every citizen reporter who uses the Internet to distribute news, today's decision is a profound electronic privacy victory for everyone who uses email," said EFF Staff Attorney Kevin Bankston. "The court correctly found that under federal law, civil litigants can't subpoena your stored email from your service provider."

EFF worked with co-counsel Thomas Moore III and Richard Wiebe in this case.

For the full decision in the case:
http://www.eff.org/Censorship/Apple_v_Does/H028579.pdf

For more on Apple v. Does:
http://www.eff.org/Censorship/Apple_v_Does/

Contacts:

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

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

Related Issues:
May 25, 2006

Technician Describes Secret NSA Room at AT&ampT Facility

San Francisco - AT&ampT has set up a secret, secure room for the NSA in at least one of the company's facilities -- a room into which AT&ampT has been diverting its customers' emails and other Internet communications in bulk -- according to evidence in key documents partially unsealed today in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against the telecom giant.

"Now the public can see firsthand the testimony of Mark Klein, a former AT&ampT employee who was brave enough to step forward and provide evidence of the company's illegal collaboration with the NSA," said EFF Staff Attorney Kevin Bankston. "Today we have released some of the evidence supporting our allegation that AT&ampT has given the NSA direct access to its fiber-optic network, such that the NSA can read the email of anyone and everyone it chooses -- all without a warrant or any court supervision, and in clear violation of the law."

The Klein declaration and EFF's motion for a preliminary injunction against AT&ampT's ongoing illegal surveillance were filed under seal last month. But last week, U.S. District Judge Vaughn Walker instructed AT&ampT to work with EFF to narrowly redact the documents and make them available to the public.

"We strongly believe in transparency and openness in judicial proceedings and that there is no proper basis for permanently sealing any of the information supporting our preliminary injunction papers," said EFF Staff Attorney Kurt Opsahl. "In the interim, we are glad that as much as possible is released while the motions to unseal filed by media entities are pending."

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 next hearing in this case is set for June 23, when the judge will consider the motions to dismiss EFF's suit made by both the U.S. government and AT&ampT.

For the public version of Klein's declaration:
http://www.eff.org/legal/cases/att/KleinDecl-Redact.pdf

For the public version of EFF's preliminary injunction motion:
http://www.eff.org/legal/cases/att/PI-Redact.pdf

For more on EFF's lawsuit:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
May 22, 2006

Customers Will Get Compensation for Flawed Copy-Protection

New York - A U.S. District Court judge in New York gave final approval Monday to a settlement for music fans who purchased Sony BMG music CDs containing flawed copy protection programs.

"This settlement gets music fans what they thought they were buying in the first place: music that will play on all their electronic devices without installing sneaky software," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn.

The claim process actually began back in February and provides anyone who purchased Sony BMG CDs that included First4Internet XCP and SunnComm MediaMax software with the same music without digital rights management (DRM). Some people are also eligible for additional downloads or a small cash settlement. Anyone who bought one of the affected CDs should start the claims process at http://www.eff.org/sony.

"Participating in the settlement is a way to show Sony BMG -- and the entire entertainment industry -- how important this issue is to you," said Cohn. "If you take the time to claim the product you deserve, maybe other music labels will think twice before wrapping songs in DRM."

The problems with the Sony BMG CDs surfaced last year when security researchers discovered that XCP and MediaMax installed undisclosed -- and in some cases, hidden -- files on users' Windows computers, potentially exposing music fans to malicious attacks by third parties. The infected CDs also communicated back to Sony BMG about customers' computer use without proper notification.

In addition to compensating consumers, Sony BMG was forced to stop manufacturing CDs with both First4Internet XCP and SunnComm MediaMax software. The settlement also waives several restrictive end user license agreement (EULA) terms and commits Sony BMG to a detailed security review process prior to including any DRM on future CDs.

EFF and its co-counsel -- Green Welling LLP Lerach, Coughlin, Stoia, Geller, Ruchman and Robbins and the Law Offices of Lawrence E. Feldman and Associates -- along with a coalition of other plaintiffs' class action counsel, reached the settlement after negotiations with Sony BMG in December of 2005.

For more on the Sony BMG settlement:
http://www.eff.org/sony

Contacts:

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

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

May 18, 2006

EFF Wins Second Reexamination from Patent Office

San Francisco - At the request of the Electronic Frontier Foundation (EFF), the U.S. Patent and Trademark Office (PTO) will reexamine a controversial patent for online test-taking from Test.com. The reexamination order is the second granted in just two months after petitions from EFF's Patent Busting Project.

EFF filed the reexamination request because the extremely broad patent claims to cover almost all methods of online testing. Test.com has used this patent to demand payments from universities with distance education programs that give tests online. But EFF, in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, showed that Test.com was not the first to come up with this testing method -- IntraLearn Software Corporation had been marketing an online test-taking system long before Test.com filed its patent request.

"Bogus patents like these are hurting innovation and education in America," said EFF Staff Attorney Jason Schultz, who heads up the project. "This is a perfect example of how the patent system is broken and what needs to be fixed."

Test.com now has the opportunity to file comments defending the patent, and then the PTO will determine whether to invalidate the patent. The PTO has narrowed or revoked roughly 70% of patents it has decided to reexamine.

The successful reexamination request for the Test.com patent is the latest big victory for EFF's Patent Busting Project, which combats the chilling effects bad patents have on the public interest and innovation. The first reexamination request was granted in April and involves a Clear Channel patent for a system and method of creating recordings of live performances, locking musical acts into using Clear Channel technology and blocking innovations by others.

Earlier this week, the U.S. Supreme Court weighed in on the eBay patent case, signaling how important patent issues are in today's economy. In a unanimous decision, justices overturned a dangerous injunction rule that threatened free speech and consumers' rights -- following the reasoning outlined in an amicus brief from EFF. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

For the full reexamination order:
http://www.eff.org/patent/wanted/test/test_com_reexam_order.pdf

For more information about the Test.com patent reexamination:
http://www.eff.org/patent/wanted/patent.php?p=test

For more on the Patent Busting Project:
http://www.eff.org/patent/

Contact:

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

Related Issues:
May 17, 2006

Evidence For Illegal Spying Case Will Remain Under Seal for Now

San Francisco - A federal judge in San Francisco ruled today that the Electronic Frontier Foundation (EFF) can use critical evidence in its class-action lawsuit against AT&ampT. However, U.S. District Judge Vaughn Walker said the evidence -- three documents that AT&ampT alleges are proprietary and contain the company's trade secrets -- will be kept under seal for now.

EFF's suit accuses AT&ampT of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). The evidence at issue was filed as support for EFF's motion for a preliminary injunction against AT&ampT, seeking to stop the company's ongoing violations of the law and the privacy of its customers.

AT&ampT had requested that the evidence be returned to AT&ampT, and not used in the case. Wednesday, Judge Walker denied that request. Although the allegedly proprietary documents will remain under seal, Judge Walker instructed AT&ampT to work with EFF to narrowly redact any confidential material from EFF's brief and supporting declarations so that they can be made public as soon as possible.

"We're very pleased that the court refused AT&ampT's unreasonable demand that this critical evidence be returned to AT&ampT and struck from the record. And, although the evidence itself will stay under seal, the court has asked AT&ampT to work with us in providing public versions of our legal papers," said EFF Staff Attorney Kevin Bankston. "Taken together with the court's refusal to close the courtroom as AT&ampT had requested, we think today was a real victory for the public's right to know, and for our ability to litigate this case."

The next hearing in this case -- about AT&ampT and the U.S. government's motions to dismiss the lawsuit -- is set for June 23.

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

Contact:

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

Related Issues:
May 16, 2006

Telecom Giant Wants to Keep Public Away from Document Debate

San Francisco - Lawyers for AT&ampT alerted the Electronic Frontier Foundation (EFF) today that it intends to ask the judge to close the courtroom in Wednesday's hearing in EFF's class-action lawsuit. EFF will oppose the request.

EFF's suit accuses AT&ampT of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). In Wednesday's hearing at U.S. District Court in San Francisco, the judge will hear oral arguments about the unsealing of critical documents in the lawsuit -- including a declaration by Mark Klein, a retired AT&ampT telecommunications technician, and several internal AT&ampT documents that support EFF's allegations.

For AT&ampT's letter to the judge:
http://www.eff.org/legal/cases/att/AndersontoWalkerreHearingLogistics.pdf

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

Contact:

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

Related Issues:
May 16, 2006

Wednesday's Arguments on Sealed Documents Set for 10am

San Francisco - The judge in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT denied a request for a conference today about closing the courtroom from reporters and spectators for tomorrow's hearing in the case, set to begin at 10 a.m. at U.S. District Court in San Francisco, courtroom 6.

EFF's suit accuses AT&ampT of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). Earlier today, lawyers for AT&ampT asked the judge in the case to close the courtroom during the discussion about unsealing critical evidence in the case -- including a declaration by Mark Klein, a retired AT&ampT telecommunications technician, and several internal AT&ampT documents that support EFF's allegations. AT&ampT wants the documents returned and argues that they should not be used as evidence in the case.

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

Contact:

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

Related Issues:
May 16, 2006

Four Justices Question Patent Trolls and Business Methods Patents in Concurring Opinion

San Francisco - The United States Supreme Court reversed a lower court decision in the controversial eBay v. MercExchange patent case Monday, invalidating a dangerous precedent that threatened free speech and consumers' rights. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

In Monday's decision, the court unanimously held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. This follows the reasoning outlined in a friend-of-the-court brief filed by the Electronic Frontier Foundation (EFF), which urged the justices to overrule the lower court and protect the public interest in free speech, innovation, and education.

"More and more people are using the Internet to exercise free speech and other individual rights," said Staff Attorney Jason Schultz, one of the authors of the EFF brief. "The court's ruling will allow judges to protect those rights in patent cases."

The lower court's ruling stemmed in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress. Additionally, the concurrence written by Justice Anthony Kennedy and joined by Justices David Souter, John Paul Stevens, and Stephen Breyer noted that the current patent system may be suffering ill effects from business method patents and so-called "patent troll" companies.

"An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees," Justice Kennedy wrote. "In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods … the potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test."

As a result of the Supreme Court's opinion, the case will now return to the trial court to reconsider its decision on the injunction.

For the full Supreme Court opinion:
http://www.patentlyo.com/patent/05_2D130o.pdf

For Justice Kennedy's concurring opinion:
http://www.patentlyo.com/patent/05_2D130c1.pdf

For EFF's amicus brief:
http://www.eff.org/legal/cases/ebay_v_mercexchange/eff_amicus_brief.pdf

For EFF's patent-busting project:
http://www.eff.org/patent/

Contact:

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

Related Issues:
May 15, 2006

DOJ Intervention Comes Just Days Before Hearing on Sealed Evidence

San Francisco - Early Saturday morning, the United States government filed a motion to dismiss the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT for illegally handing over its customers' telephone and Internet records and communications to the National Security Agency. The government claims that its legal brief and two affidavits from senior intelligence officials that accompanied the motion are classified, preventing even the parties to the lawsuit, EFF and AT&ampT, from seeing them.

While EFF was not permitted to see the government's entire brief, in a redacted version made publicly available the government said that the case against AT&ampT should be immediately terminated because any judicial inquiry into the whether AT&ampT broke the law could reveal state secrets and harm national security.

"The government is trying to lock out any judicial inquiry into AT&ampT and the NSA's illegal spying operation," said EFF Staff Attorney Kurt Opsahl. "It is illegal for major telecommunications companies to simply hand over private customer information to the government. They should not be allowed to hide their illegal activity behind government assertions of 'state secrets' to prevent the judiciary from stepping in to expose and punish the illegal behavior. If the government's motion is granted, it will have undermined the freedoms our country has fought so hard to protect."

EFF's federal lawsuit against AT&ampT alleges that the telecommunications company has given the 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. This week, a USA TODAY report bolstered key allegations in EFF's lawsuit, detailing how AT&ampT, Verizon, and BellSouth provided phone call records about of tens of millions of their customers to the NSA without any legal authorization. The same week, lawyers at the Justice Department were forced to halt their probe into the DOJ's involvement in the spying program because they were refused security clearance by the NSA.

"The press has already widely reported on the illegal domestic surveillance that is the basis for our case. Allowing a court to determine whether AT&ampT broke the law would in no way harm national security. Indeed, our case is meant to protect Americans -- by requiring that the AT&ampT follow the law and protect its customers from unchecked spying into their personal communications," said EFF Staff Attorney Kevin Bankston.

On Wednesday, May 17, at 10 a.m., a U.S. District Court judge in San Francisco will hear oral arguments about the unsealing of critical documents in the lawsuit. The sealed evidence at issue includes a declaration by Mark Klein, a retired AT&ampT telecommunications technician, and several internal AT&ampT documents that support EFF's allegations. AT&ampT wants the documents returned and argues that they should not be used as evidence in the case. For more information about attending the hearing, please email press@eff.org.

For the redacted government motion:
http://www.eff.org/legal/cases/att/GovMotiontoDismiss.pdf

For USA TODAY's story:
http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm

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

Contact:

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

Related Issues:
May 12, 2006

Decision Delays Inquiry Into State's History of Voting Machine Problems

San Francisco - The Sixth Circuit Court of Appeals ruled this week that a critical lawsuit aimed at improving the security and integrity of Ohio's voting technology will be put on hold indefinitely. The ruling halts case proceedings until the appeal of the government's motion to dismiss is decided and seriously jeopardizes the chances that critical procedural improvements will be in place by the time voters enter polling places in November.

The Electronic Frontier Foundation (EFF) had intervened in this lawsuit, originally brought by the League of Women Voters of Ohio, in the fall of 2005 on behalf of voter Jeanne White. White's case focuses on the issues surrounding electronic voting and seeks to increase the security and accuracy of Ohio's e-voting technology, as well as to dramatically improve state and local procedures that leave the integrity of the state's e-voting equipment in doubt.

Ohio's closely watched and widely criticized election of 2004 exposed a wide range of problems, complaints, and irregularities in its voting technologies. Among other things, 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. Ohio, however, has no requirements that counties keep formal track of such problems, much less report them to state officials or to the public.

"We had hoped the appellate court would follow the trial court's lead and let the case progress," said EFF Staff Attorney Matt Zimmerman "Without this expedited schedule, the case won't be able to marshal changes to Ohio's voting systems before this November's elections. The state owes it to its citizens to ensure that the problems of the past are identified and won't be repeated. It has, so far, failed to do so."

EFF intends to challenge the Sixth Circuit's recent ruling and to continue to move Ms. White's case forward as quickly as possible. EFF is working with the law firms of Kerger and Associates and Zuckerman, Spaeder, Goldstein, Taylor &amp Kolker as it pursues this case.

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

For more on electronic voting:
http://www.eff.org/Activism/E-voting/

Contact:

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

Related Issues:
May 9, 2006

"Certified Mail" Allows Mass Mailers to Bypass Spam Filters

San Francisco - AOL has quietly flipped the switch on its "certified mail" service, delivering pay-to-send email to some of its millions of customers.

The Goodmail CertifiedEmail service allows large mass-emailers to pay a fee to bypass AOL's spam filters and get guaranteed delivery directly into AOL customers' inboxes. The Electronic Frontier Foundation (EFF) believes the pay-to-send model could leave nonprofits, small businesses, and other groups with increasingly unreliable service.

"Many groups suffer from what the Wall Street Journal called 'spam filters gone wild,' and their email never reaches many on their mailing lists," said EFF Activism Coordinator Danny O'Brien. "With AOL's system in place, AOL will be taking money from big companies to skip those filters entirely. If ISPs can make money for a premium service that evades their malfunctioning filters, we worry that they won't fix those filters for groups who do not pay."

While the creators of "certified mail" claim that their programs help customers recognize legitimate worthy causes and vital banking mail in their inbox, the first pay-to-send mailing spotted by EFF was a promotion for Overstock.com. Overstock has every right to reach customers who signed up for their mailing list, but just because corporations have the money to pay for email delivery doesn't make that mail more important than any other non-commercial mail.

"We already know what commercial, paid-for mass mail is, but we don't call it certified mail. We call it junk mail," said O'Brien. "Why should paying ISPs for delivery let some companies gain special access to your inbox?"

EFF and hundreds of other groups have joined together in the DearAOL.com coalition, which formed to urge AOL and other ISPs to reject pay-to-send schemes. However, in a pointed example of how ISP control of your inbox can go wrong, last month AOL silently started dropping email that even mentioned DearAOL.com. After EFF publicized the problem, AOL quickly rectified the situation.

For more on the DearAOL.com Coalition:
http://www.dearaol.com

For more on AOL's CertifiedEmail launch:
http://www.dearaol.com/blog

Contact:

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

Related Issues:
April 28, 2006

DOJ Will Assert Military and State Secrets Privilege and Request Dismissal of Lawsuit

San Francisco - The United States government filed a "Statement of Interest" Friday in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT, announcing that the government would "assert the military and state secrets privilege" and "intervene to seek dismissal" of the case.

EFF's lawsuit accuses AT&ampT of collaborating with the National Security Agency in its massive surveillance program. EFF's evidence regarding AT&ampT's dragnet surveillance of its networks, currently filed under seal, includes a declaration by Mark Klein, a retired AT&ampT telecommunications technician, and several internal AT&ampT documents. This evidence was bolstered and explained by the expert opinion of J. Scott Marcus, who served as Senior Advisor for Internet Technology to the Federal Communications Commission from July 2001 until July 2005

Much of the evidence in the case is currently under seal, as AT&ampT claims public release of the documents would expose trade secrets. A hearing on the issue is scheduled for May 17th.

For the full Statement of Interest:
https://www.eff.org/legal/cases/att/USA_statement_of_interest.pdf

For more on EFF's suit:
https://www.eff.org/legal/cases/att/

Contact:

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

April 27, 2006

15th Annual Ceremony Highlights Innovations in Information Technology

Washington, DC - The Electronic Frontier Foundation (EFF) will honor craigslist and its leaders, Craig Newmark and Jim Buckmaster Gigi Sohn of Public Knowledge and Jimmy Wales of Wikipedia at its 15th annual Pioneer Awards ceremony. The presentation is at 7pm on Wednesday, May 3 at the International Spy Museum in Washington, DC, in conjunction with the Computers, Freedom, and Privacy conference (CFP).

This year's award winners all represent vital, community-building organizations dedicated to spreading knowledge in or about our digital world. They were nominated by the public and then chosen by a panel of independent judges for their innovations in the realm of information technology.

Craigslist is the world's most-used classified forum in any medium, serving as a non-commercial community service. Craigslist focuses on helping people with their basic needs – starting with housing and jobs – with a pervasive culture of trust. Craigslist's Craig Newmark founded the online community in 1995, and he still acts as a customer service representative. Jim Buckmaster has been craigslist's CEO since November of 2000, helping to transform it into one of the most popular websites in the world while maintaining its renowned public service mission.

Gigi B. Sohn is president and co-founder of Public Knowledge, a nonprofit organization that addresses the public's stake in the convergence of communications policy and intellectual property law, and serves as PK's chief strategist, fundraiser and public face. Sohn often testifies before Congress on intellectual property and technology policy, and she takes an active part in debates about proposed legislation.

Jimmy Wales is the founder and president of the Wikimedia Foundation, a non-profit corporation that operates Wikipedia – a free, online, collaborative encyclopedia. Wikipedia started in January of 2001, and now it's one of the most-used reference sites on the Internet, with editions in over 200 languages.

"I'm thrilled to honor this year's Pioneer Award recipients," said EFF's Executive Director, Shari Steele. "The Internet is a web of communities, among other things, and Craig, Jim, Gigi and Jimmy have all been instrumental in helping to give people the tools they need for sharing information online."

The judges for this year's awards were Kim Alexander (President and Founder, California Voter Foundation), Esther Dyson (editor, Release 1.0, CNET Networks), Edward W. Felten (Professor of Computer Science and Public Affairs, Princeton University), Mitch Kapor (Chair, Open Source Applications Foundation), Drazen Pantic (Co-Director, Location One, New York), Barbara Simons (IBM Research [Retired]and former President ACM), and James Tyre (Founder, The Censorware Project).

Since 1991, the EFF Pioneer Awards have recognized individuals and organizations that have made significant and influential contributions to the development of computer-mediated communications or to the empowerment of individuals in using computers and the Internet. Past winners include Tim Berners-Lee, Linus Torvalds, and Ed Felten, among many others.

This year, the Pioneer Awards are sponsored by Sling Media, a consumer electronics company working to demystify convergence technologies and to create empowering experiences for the digital media consumer. Sling Media's Slingbox transforms Windows-based laptops, desktops, PDAs, and smartphones into personal on-the-go digital TVs. Learn more about Sling Media at http://www.slingmedia.com.

More on the EFF Pioneer Awards:
https://www.eff.org/awards/pioneer

Contact:

Katina Bishop
Projects Coordinator
Electronic Frontier Foundation
katina@eff.org

April 18, 2006

Arguments Set for April 20 in San Jose

San Jose - On April 20, EFF Staff Attorney Kurt Opsahl will argue Apple v. Does – a case with broad implications for journalists and their right to protect the confidentiality of their sources – before a San Jose, California, appeals court.

Apple Computer, Inc., has sued several unnamed individuals, called "Does," for allegedly leaking information to online reporters about an upcoming product code-named "Asteroid." As part of the suit, Apple has subpoenaed Nfox, the ISP for PowerPage publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles. Apple has also been granted permission to issue subpoenas directly to Electronic Frontier Foundation (EFF) clients PowerPage and AppleInsider for similar information.

The trial court held that if a journalist publishes information a business claims to be a trade secret, this act destroys constitutional protection for the journalist's confidential sources and unpublished materials. EFF and co-counsel Thomas Moore III and Richard Wiebe have appealed, asking the appeals court to correct the error and restore the well-settled constitutional protections for a journalist's confidential information.

"The California courts have a long history of supporting and protecting freedom of the press," said EFF Staff Attorney Kurt Opsahl. "We are looking forward to the opportunity to ask the Court of Appeal to correct a ruling that endangers all journalists."

WHAT:
Apple v. Does (O'Grady v. Superior Court)

WHEN:
April 20, 9:30am

WHERE:
333 W. Santa Clara St. Suite 1060
San Jose, CA 95113

For more on the Apple v. Does case:
https://www.eff.org/Censorship/Apple_v_Does

Contacts:

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

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

Related Issues:
April 17, 2006

Esther Dyson and Danny O'Brien Face Off April 20 in San Francisco

San Francisco - What is the future of email? Should anyone ever have to pay to send it? Or would payments undermine free speech on the Internet? These are just a few of the questions raised recently by AOL's controversial plans to adopt a "certified" email system.

For more on the issues surrounding pay-to-send email, join EFF for a debate on April 20 in San Francisco. EFF's Activism Coordinator Danny O'Brien and tech expert Esther Dyson will face off over the question "Email - Should the Sender Pay?" Entrepreneur and EFF co-founder Mitch Kapor will moderate.

To reserve a seat for this debate, please email press@eff.org.

WHAT:
EFF Debate: "Email - Should the Sender Pay?"

WHEN:
Thursday, April 20th 7-8:30pm

WHERE:
Roxie Film Center 3117
16th Street, San Francisco
(between Valencia and Guerrero)
415-863-1087

RSVP:
press@eff.org

For more on this event:
https://www.eff.org/bayff/aolmail_debate.php

To learn more about the DearAOL campaign against AOL's planned sender-pay system:
http://www.dearaol.com

Some recent coverage of the controversy concerning AOL:
http://news.com.com/AOL+charged+with+blocking+opponents+e-mail/2100-1030_3-6061089.html

For Esther Dyson's editorial, "You've Got Goodmail":
http://www.release1-0.com/freshproduce/article.php?serialnum=FRP200603170000

Contact:

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

Related Issues:
April 13, 2006

Won’t Deliver Emails Mentioning www.DearAOL.com

UPDATE After this press release was sent out Thursday afternoon, AOL stopped blocking email with links to www.DearAOL.com. Officials at the company stated that problems of this nature generally take three to five working days to fix. However, this was fixed after 24 hours of undeliverability - and approximately twenty minutes after this press release was widely distributed. This incident only increases our worry about organizations who don't have the ability to seek instant press attention. The next time AOL's anti-spam filters fail for a small organization – or one without political muscle – will they move so quickly to fix them? Or will they push organizations to just sign up with Goodmail and pay to avoid the problem?

San Francisco - AOL is blocking delivery to AOL customers of all emails that include a link to www.DearAOL.com. Today, over 100 people who signed a petition to AOL tried sending messages to their AOL-using friends, and received a bounce-back message informing them that their email "failed permanently."

"The fact is, ISPs like AOL commonly make these kinds of arbitrary decisions – silently banning huge swathes of legitimate mail on the flimsiest of reasons – every day, and no one hears about it," said Danny O'Brien, Activism Coordinator of the Electronic Frontier Foundation (EFF). "AOL's planned CertifiedEmail system would let them profit from this power by offering to charge legitimate mailers to bypass these malfunctioning filters."

After reports of undelivered email started rolling in to the DearAOL.com Coalition, MoveOn co-founder Wes Boyd decided to see for himself if it was true.

"I tried to email my brother-in-law about DearAOL.com and AOL sent me a response as if he had disappeared," said Boyd. "But when I sent him an email without the DearAOL.com link, it went right through."

While AOL may imply that censoring www.DearAOL.com is part of some anti-spam effort, their own customers are witnessing how faulty AOL's spam measures would be if that were the case.

"I forwarded www.DearAOL.com to my own AOL account and it was censored. Apparently I can't even tell myself about it," said Kelly Tessitore from Framingham, Massachusetts.

"This proves the DearAOL.com Coalition's point entirely: left to their own devices, AOL will always put its own self-interest ahead of the public interest in a free and open Internet," said Timothy Karr, campaign director of Free Press, a national, nonpartisan organization working on media reform and Internet policy issues. "AOL wants us to believe they won't hurt free email when their pay-to-send system is up and running. But if AOL is willing to censor the flow of information now to silence their critics, how could anyone trust that they will preserve the free and open Internet down the road? Their days of saying 'trust us' are over – their credibility is zero, zip, nada."

The DearAOL.com Coalition represents over 15 million people combined – and has grown from 50 member organizations to 600 in a month. Since the beginning of the DearAOL.com campaign, more than 350,000 Internet users have signed letters to AOL opposing its pay to send proposal. Coalition members include craigslist founder Craig Newmark, the Association of Cancer Online Resources, EFF, Free Press, the AFL-CIO, MoveOn.org Civic Action, Gun Owners of America, and others.

For more on the issues surrounding pay-to-send email, join EFF for a debate on April 20 in San Francisco. EFF's O'Brien and tech expert Esther Dyson will face off over the question "Email - Should the Sender Pay?" Entrepreneur Mitch Kapor will moderate.

More information about the DearAOL.com Coalition:
http://www.dearaol.com

More information on next week's debate:
https://www.eff.org/bayff/aolmail_debate.php

Contacts:

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

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

Related Issues:
April 13, 2006

EFF Report Highlights More Unintended Consequences in Seven Years of DMCA

San Francisco - In the seven years since Congress enacted the Digital Millennium Copyright Act (DMCA), examples of the law's impact on legitimate consumers, scientists, and competitors continue to mount. A new report released today from the Electronic Frontier Foundation (EFF), "Unintended Consequences: Seven Years Under the DMCA," collects reports of the misuses of the DMCA -- chilling free expression and scientific research, jeopardizing fair use, impeding competition and innovation, and interfering with other laws on the books. The report updates a previous version issued by EFF in 2003.

The report tells the story of the delay of the disclosure of the Sony BMG "rootkit" vulnerabilities on millions of music CDs. The dangerous software flaws were initially discovered by Princeton graduate student J. Alex Halderman. But Halderman delayed sounding the alarm about the security problems for several weeks so he could consult with lawyers about potential violations of the DMCA. The report also details the DMCA's role in impeding RealNetworks from selling digital music to Apple iPod owners, along with other unintended consequences from the DMCA.

"Rather than being used to stop 'piracy,' the DMCA has predominantly been used to threaten and sue legitimate consumers, scientists, publishers, and competitors," said EFF senior staff attorney Fred von Lohmann. "This law is not being used as Congress intended, and a review of the past seven years makes it clear that reform is needed."

For "Unintended Consequences: Seven Years Under the DMCA":
https://www.eff.org/IP/DMCA/?f=unintended_consequences.html

For more on EFF and the DMCA:
https://www.eff.org/IP/DMCA/

Contact:

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

Related Issues:
April 6, 2006

Internal AT&ampT Documents Had Been Temporarily Held Back Due To Government's Concerns

San Francisco - The Electronic Frontier Foundation (EFF) on Wednesday filed the legal briefs and evidence supporting its motion for a preliminary injunction in its class-action lawsuit against AT&ampT. After asking EFF to hold back the documents so that it could review them, the Department of Justice consented to EFF's filing them under seal -- a well-established procedure that prohibits public access and permits only the judge and the litigants to see the evidence. While not a party to the case, the government was concerned that even this procedure would not provide sufficient security and has represented to the Court that it is "presently considering whether and, if so, how it will participate in this case."

"The evidence that we are filing supports our claim that AT&ampT is diverting Internet traffic into the hands of the NSA wholesale, in violation of federal wiretapping laws and the Fourth Amendment," said EFF Staff Attorney Kevin Bankston. "More than just threatening individuals' privacy, AT&ampT's apparent choice to give the government secret, direct access to millions of ordinary Americans' Internet communications is a threat to the Constitution itself. We are asking the Court to put a stop to it now."

EFF's evidence regarding AT&ampT's dragnet surveillance of its networks includes a declaration by Mark Klein, a retired AT&ampT telecommunications technician, and several internal AT&ampT documents. This evidence was bolstered and explained by the expert opinion of J. Scott Marcus, who served as Senior Advisor for Internet Technology to the Federal Communications Commission from July 2001 until July 2005.

The internal AT&ampT documents and portions of the supporting declarations have been submitted to the Court under a tentative seal, a procedure that allows AT&ampT five court days to explain to the Court why the information should be kept from the public.

"The public deserves to know about AT&ampT's illegal program," said EFF Legal Director Cindy Cohn. "In an abundance of caution, we are providing AT&ampT with an opportunity to explain itself before this material goes on the public docket, but we believe that justice will ultimately require full disclosure."

The NSA program came to light in December, when the New York Times reported that the President had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies, including AT&ampT.

"Mark Klein is a true American hero," said EFF Staff Attorney Kurt Opsahl. "He has bravely come forward with information critical for proving AT&ampT's involvement with the government's invasive surveillance program."

In the lawsuit, EFF is representing the class of all AT&ampT residential customers nationwide. Working with EFF in the lawsuit are the law firms Traber &amp Voorhees, Lerach Coughlin Stoia Geller Rudman &amp Robbins LLP and the Law Office of Richard R. Wiebe.

For the notice of motion for preliminary injunction:
https://www.eff.org/legal/cases/att/NotMot.pdf

For the motion to lodge under temporary seal:
https://www.eff.org/legal/cases/att/MotionReSealing.pdf

For more on EFF's suit:
https://www.eff.org/legal/cases/att/

Contacts:

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

For Mark Klein:
Miles Ehrlich, Esq.
Ramsey &amp Ehrlich
miles@ramsey-ehrlich.com

[Note, 04/07 - J. Scott Marcus' title corrected.]

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April 5, 2006

Illegitimate Patent Chills Distance Learning and University Education

San Francisco - An extremely broad patent claiming to cover almost all methods of online testing is coming under fire today.

Test.com has used this illegitimate patent to demand payments from universities with distance education programs that give tests online. However, a patent reexamination application filed by the Electronic Frontier Foundation (EFF) today shows that Test.com wasn't the first to come up with this testing method.

"Bogus patents like this one highlight the problems with the current patent system. This is a good example of exactly what needs to be fixed to make patents useful to innovators and educators alike," Schultz said.

In conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, EFF filed a request for reexamination with the United States Patent and Trademark Office showing that IntraLearn Software Corporation had been marketing an online test-taking system long before Test.com filed its patent request. But Test.com claims that its patent allows it to collect license fees for virtually all online testing methods, preventing educators from developing online coursework and communicating with students over the Internet. As online testing is critical to Internet education, the enforcement of this patent threats academic speech and academic freedom.

"Our nation's education system already faces severe budget constraints and a shortage of resources," said EFF Staff Attorney Jason Schultz. "We shouldn't be diverting resources away from teaching to pay off bogus patent threats."

The challenge to the Test.com patent is the second filing from EFF's Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. The first reexamination request was granted on Monday and involves a Clear Channel patent for a system and method of creating recordings of live performances, locking musical acts into using Clear Channel technology and blocking innovations by others.

Just last week, the United States Supreme Court heard arguments in the eBay v. MercExchange patent case, signaling how important patent issues are in today's economy. EFF filed an amicus brief in that case, asking justices to consider the critical free speech implications in its ruling.

For the full Test.com patent reexamination request:
https://www.eff.org/patent/wanted/test/testcom_reexam.pdf

For more on EFF's Patent Busting Project:
https://www.eff.org/patent/

For more on IntraLearn Software:
http://www.intralearn.com/

For more on eBay v. MercExchange:
https://www.eff.org/legal/cases/ebay_v_mercexchange/

Contacts:

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

Jerry Goguen
IntraLearn Software Corporation
jgoguen@intralearn.com

Theodore C. McCullough
Attorney
Lemaire Patent Law Firm

Related Issues:
April 4, 2006

Hundreds Join EFF and Other Groups to Fight for Election Integrity

San Francisco - Hundreds of citizen lobbyists from across the nation will be in Washington, DC, this coming Thursday and Friday, working to help secure the future of safe, reliable electronic voting through the passage of HR 550 -- the Voter Confidence and Increased Accessibility Act. HR 550 would ensure a voter-verified paper record of every vote, establish mandatory random hand-counted audits, and prohibit the use of secret software and wireless communications in voting machines.

The "Lobby Days" were organized by the HR 550 "I Count" Coalition, which includes the Electronic Frontier Foundation (EFF), Common Cause, Verified Voting, Voters Unite, VoteTrustUSA, and Working Assets. The coalition will hold a lobbying training session for activists before they go to work on Thursday.

"HR 550 represents the best opportunity to solve a number of problems related to the use of electronic voting equipment," said EFF Staff Attorney Matt Zimmerman. "By participating in this event, voters will get a chance to make their voices heard in Congress and demand transparency and accountability in elections."

HR 550 has made significant progress in the House of Representatives, largely through the grassroots efforts of voting activists. Lobby Days will help continue the momentum and show members of Congress that many of their constituents are passionate about voting integrity.

Lobby Days Schedule:

Thursday, April 6

Lobbying training session
9am to noon
Human Rights Campaign
1640 Rhode Island Ave. NW
Washington, DC

Meetings with members of Congress and staff
Noon to 6pm
Capitol Hill office buildings

Friday, April 7

Press conference
10am
Rayburn Terrace
(rain location: RHOB 2168)

Additional media availability
10am to 5pm
RHOB 2168

Additional lobbying visits
10am to 5pm
Capitol Hill office buildings

HR 550 "I Count" Coalition:
http://www.icountcoalition.org

EFF's Lobby Days Blog:
https://www.eff.org/deeplinks/archives/cat_evoting_lobby_days.php

Contacts:

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

Derek Slater
Activist
Electronic Frontier Foundation
derek@eff.org

Related Issues:
April 3, 2006

Patent Office Orders Reexamination at EFF's Request

San Francisco - At the request of the Electronic Frontier Foundation (EFF), the US Patent and Trademark Office (PTO) today agreed to reexamine an illegitimate patent held by Clear Channel Communications. The patent -- for a system and method of creating digital recordings of live performances -- locks musical acts into using Clear Channel technology and blocks innovations by others.

"The Patent Office agrees that there are serious questions about the patent's validity," said EFF Staff Attorney Jason Schultz. "This is a significant victory for artists and innovators harmed by Clear Channel's patent and for anyone concerned about overreaching, illegitimate patents."

Clear Channel now has two months to file comments defending its patent, to which EFF will get to respond. The PTO will then determine whether to invalidate the patent. In roughly 70% of instances like this one in which a request for reexamination is granted, the patent is narrowed or completely revoked.

"Patents serve an important role in our economy," said Schultz. "Keeping illegitimate patents out of that system benefits all of us, helping up-and-coming artists and entrepreneurs."

EFF filed the request for reexamination in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm and with the help of students at the Glushko-Samuelson Intellectual Property Clinic at American University's Washington College of Law. The Clear Channel patent challenge is part of EFF's Patent Busting Project, aimed at combating the chilling effects bad patents have on public and consumer interests. The Patent Busting Project seeks to document the threats and fight back by filing requests for reexamination against the worst offenders.

For more information about EFF's request and Clear Channel's patent:
https://www.eff.org/patent/wanted/patent.php?p=clearchannel

For EFF's Patent Busting Project:
https://www.eff.org/patent/

Contacts:

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

Theodore C. McCullough
Attorney
Lemaire Patent Law Firm

Related Issues:
March 31, 2006

DOJ Demands First Look at Documents It Claims Might Be Classified

San Francisco - The Electronic Frontier Foundation (EFF) filed a motion for a preliminary injunction in its class-action lawsuit against AT&ampT today. However, much of the evidence that was to be included in the motion—as well as the legal arguments based on that evidence—was held back temporarily at the request of the Department of Justice (DOJ). While the government is not a party to the case, DOJ attorneys told EFF that even providing the evidence under seal to the court—a well-established procedure that prohibits public access and permits only the judge and the litigants to see the evidence—might not be sufficient security.

EFF's motion seeks to stop AT&ampT from violating the law and the privacy of its customers by disclosing to the government the contents of its customers' communications, as part of the National Security Agency's (NSA's) massive and illegal program to wiretap and data-mine Americans' communications. The motion was supported by a number of internal AT&ampT documents that the government now claims might include classified information.

EFF will seek the Court's permission to publicly release the preliminary injunction motion and supporting documents, and hopes to have redacted versions available after further discussions with the government.

"Openness in court proceedings is fundamental to a free society," said EFF Staff Attorney Kurt Opsahl. "The facts supporting our motion are not classified and are important to the public debate over the propriety of the NSA domestic spying program. The public deserves to know the truth."

The NSA program came to light in December, when the New York Times reported that the President had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies, including AT&ampT. This surveillance is ongoing, and today's injunction motion seeks to stop the spying while the case is pending.

"AT&ampT's wholesale diversion of communications into the hands of the NSA violates federal wiretapping laws and the Fourth Amendment," said EFF Staff Attorney Kevin Bankston. "More than just threatening individuals' privacy, AT&ampT's shameful choice to allow the government to spy on millions of ordinary Americans' communications is a threat to the Constitution itself. We are asking the Court to put a stop to it now."

In the lawsuit, EFF is representing the class of all AT&ampT residential customers nationwide. Working with EFF in the lawsuit are the law firms Traber &amp Voorhees, Lerach Coughlin Stoia Geller Rudman &amp Robbins LLP and the Law Office of Richard R. Wiebe.

For the motion for preliminary injunction:
Brief and some evidence NOT AVAILABLE BY DOJ REQUEST

For more on EFF's suit:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
March 13, 2006

EFF and Other Groups Call for Bills' Withdrawal

San Francisco - A diverse coalition of companies, public interest organizations, and legal scholars, including the Electronic Frontier Foundation (EFF), craigslist, Public Citizen, the US Internet Industry Association (USIIA), the Center for Democracy and Technology (CDT) and Professors Lyrissa C. Barnett Lidsky and Jennifer M. Urban, sent an open letter today to three New Jersey assemblymen, urging them to withdraw their support from two bills designed to eliminate anonymous online speech.

Assembly bills A1327 and A2623 would require Internet service providers to record users' identities and reveal them in any claim of defamation. While aimed at curbing online bad actors, the bills instead run afoul of the First Amendment—which protects the right to speak anonymously—as well as a federal law designed to protect speech in online fora. The bills would require identification of an online poster before the facts were resolved, leading to a flood of unsubstantiated claims designed simply to unmask online speakers.

"Protecting anonymity is vital to maintaining the diversity of viewpoints on the Internet," said EFF Staff Attorney Kurt Opsahl. "Keeping online debates robust enables democracy, even if it allows name-calling and strongly worded opinions about political figures."

The open letter calls for Assemblymen Peter J. Biodi, Wilfredo Caraballo, and Upendra J. Chivukula not to waste taxpayer resources in defending these bills that will inevitably be struck down in court. New Jersey courts are already handling claims of defamation online in a careful and constitutionally appropriate manner, balancing a speaker's anonymity rights with the merits of the plaintiff's claim. The well-established standard in New Jersey and elsewhere for deciding whether to order the identification of anonymous defendants has functioned well to separate ill-founded lawsuits from cases in which identification is appropriate.

As evidence of this balanced approach, the open letter points to the cases available for review on a web site maintained by the Cyberslapp Coalition—several of whose members signed the open letter—at www.cyberslapp.org. The Cyberslapp web site provides briefs, evidence, and opinions from nearly four dozen "John Doe" cases in which the standard has been discussed and applied. The site, which permits search both by keyword and by state of decision, is provided free of charge as a resource for litigants on both sides of Doe disputes.

For the full text of the open letter:
http://eff.org/Privacy/Anonymity/NewJerseyLetter.pdf

The Cyberslapp Coalition:
http://www.cyberslapp.org

Contact:

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

Related Issues:
March 7, 2006

30,000 Email Users Sign Open Letter

San Francisco - Despite AOL's attempt to divide its critics, the DearAOL.com Coalition announced Monday it has grown tenfold from 50 organizations to more than 500 as it fights AOL's controversial plan to create a two-tiered Internet that leaves the little guy behind.

Last week, AOL's proposed "email tax" came under fire from a coalition of political groups on the left and right, businesses and non-profits, charities, and Internet advocacy organizations. More than 400 publications around the world published articles about AOL's plan to allow large mass-emailers to pay to bypass AOL's spam filters and get guaranteed delivery directly into the inboxes of AOL customers—leaving the little guy behind with increasingly unreliable second-tier Internet service.

In just several days, the DearAOL.com Coalition grew to include everything from babysitting co-ops to pony clubs, from farmers markets to biker dailies, from Hawaiian skateboard makers to church groups—demonstrating that small, large, ordinary and extraordinary groups depend on free email delivery. All coalition members are located at www.dearaol.com.

Clearly worried by the coalition's growing momentum, AOL on Friday tried to repackage its already existing "Enhanced Whitelist" as if it were a new program for nonprofits. It also tried to divide the coalition with an offer to give special email privileges to some "qualified" nonprofits while leaving other non-profits, charities, small businesses, and even neighbors with community mailing lists behind. Neither of these addresses the core of the problem: AOL's increased financial incentive to downgrade ordinary email delivery.

"I don't take bribes," said Gilles Frydman, Executive Director of the Association of Cancer Online Resources, a free nonprofit online service for cancer patients. "The solution is not AOL offering a few of us service for free in exchange for our silence—the solution is preserving equal access to the free and open Internet for everyone."

If anything, the net result of AOL's Friday announcement was that they conceded the central point of the DearAOL.com Coalition.

"By offering to move a few of the little guys from the losers circle to the winners circle, AOL conceded the broader point of our coalition—that AOL's would create a two-tiered Internet that leaves many behind with inferior service," said Adam Green, a spokesperson for MoveOn.org Civic Action.

This weekend, the San Jose Mercury News exposed this reality in an editorial entitled, "Paid e-mail will lead to separate, unequal systems free systems will become neglected." It identified AOL's threat to the "free and open" Internet this way: "the temptation would be to neglect the free e-mail system, whose reliability would decline. Eventually, everyone would migrate to the fee-based system. There would be no way around the AOL tollbooth."

"Perversely, AOL's pay-to-send system would actually reward AOL financially for degrading free email for regular customers as they attempt to push people into paid-mail," said Danny O'Brien, Activism Coordinator for the Electronic Frontier Foundation. "AOL should be working to ensure its spam filters don't block legitimate mail, not charging protection money to bypass those filters and offering band-aids to allow some select nonprofits to bypass them as well."

"AOL's pay-to-send scheme threatens the free and open Internet as we know it," said Timothy Karr, campaign director of Free Press, a national, nonpartisan media reform organization. "The Internet needs to be a level playing field. The flow of online information, innovation and ideas is not a luxury to be sold off to the highest bidder."

The DearAOL.com Coalition:
http://www.dearaol.com

San Jose Mercury News editorial:
http://www.mercurynews.com/mld/mercurynews/news/opinion/14023726.htm

Contact:

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

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