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Press Room

March 4, 2005

Rights of Online Journalists Hang in the Balance

San Jose - A Santa Clara County Superior Court judge today said that he would take under consideration a motion brought by the Electronic Frontier Foundation (EFF) that asked the court to protect three online journalists from having to reveal the identities of their confidential sources to attorneys from Apple Computer, Inc. The judge promised a written decision soon.

Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the Internet service provider (ISP) for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.

EFF lawyers, along with co-counsel Thomas Moore III and Richard Wiebe, argued this morning that these online reporters' confidential sources and unpublished material are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment.

The court was interested in the question of whether online reporters are legitimate journalists, but for most of the hearing, the judge assumed that they were journalists and examined whether the reporter's shield should apply in this case. Under the First Amendment, the reporter's privilege is qualified -- it does not protect reporters under all circumstances. But subpoenas to journalists are always a last resort. The hearing examined whether Apple had overcome this qualified privilege to demonstrate that its need for the information was greater than the need to protect the confidentiality of these journalists' sources.

"We don't believe Apple has exhausted all methods of getting this information," said EFF Staff Attorney and Bruce J. Ennis Fellow Kevin Bankston. "Apple hasn't subpoenaed any of its employees the way it subpoenaed our clients' ISP. Nor has it deposed any of its employees in the case."

Added EFF Staff Attorney Kurt Opsahl, "We're pleased that the court is taking the time to consider how important it is to protect these journalists' sources if we want to maintain the free flow of information that is vital to a democratic society and a free press."

If the motion is denied, EFF will ask the California Court of Appeals to intervene.

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

Related Issues:
March 2, 2005

San Jose, CA - This Friday, the Electronic Frontier Foundation (EFF) will face attorneys for Apple Computer in a hearing to determine whether three independent online journalists will be given the same legal protections as journalists who work for traditional media publications.

Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the Internet service provider (ISP) for PowerPage.com 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 about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.

In the first case of its kind, EFF will argue that these online reporters' confidential sources and unpublished material are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. The hearing will take place Friday, March 4, at 10:00 a.m. at the Santa Clara County Superior Court, 191 North First Street, San Jose. Press are welcome to attend.

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

Related Issues:
March 1, 2005

Legislation Would Ban Tracking Devices in Public ID Documents

NOTE: This is a press release from the ACLU of Northern California. EFF is recirculating it for your information.

San Francisco, CA - The ACLU, the Electronic Frontier Foundation, and the Privacy Rights Clearinghouse support legislation introduced by Senator Joe Simitian that would prohibit identity documents issued by the state, including driver's licenses and library cards, from containing a contactless integrated circuit or other device that can broadcast personal information or enable that information to be scanned remotely.

"This is all about individual privacy, personal safety and financial security," said Senator Joe Simitian. "SB 682 ensures that state and local government will be part of the solution, not part of the problem."

The legislation was introduced days after a company in Sutter, California withdrew its pilot program from an elementary school amidst parents outcry who did not want their children tagged like "inventory." The school district introduced the mandatory use of Radio Frequency Identification tags (RFIDs) to track the students' movements. The students were required to wear the ID badges that included the device along with the student's name, photo, grade, school name, class year and the four-digit school ID number.

Jeffrey and Michele Tatro, parents of a Sutter elementary student who had to wear the mandatory RFID said: "We fully support this legislation that will protect families throughout California from having to go through what we did – seeing our children tagged like inventory or cattle."

"In light of what happened in Sutter, California, we think it is especially important that this bill be passed to protect the privacy and security of all Californians," said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU of Northern California. "No person should ever be forced to carry an RFID tag. It violates fundamental rights to privacy, it is demeaning, and it threatens our physical and economic security."

The Identity Information Protection Act of 2005 (SB 682), would prohibit any identity document created by the state, county, or municipal government, from containing a contactless integrated circuit or other device that can broadcast an individual's name, address, telephone number, date of birth, race, religion, ethnicity, nationality, photograph, fingerprint, social security number and any other unique personal identifier or number.

"The signals broadcast by this type of badge can be picked up by anyone with the technology to read it, which allows a child's identity and location to be pinpointed with ease. This does not increase security, it lessens it," said Pam Noles, a policy associate for the ACLU of Southern California. "In Sutter, these badges compromised the safety of the elementary school students and parents weren't even given the option to consent to their use."

Lee Tien of the Electronic Frontier Foundation added: "Radio Frequency Identification (RFID) tags are a very dangerous technology for privacy, especially when used in ID cards. It allows unauthorized people to access personal information. This bill represents a good first step in managing this problem."

"Senator Simitian's bill provides vital protection for all Californians. Individuals who are required to carry government issued IDs should not be put in a situation where that document enables them to be monitored and tracked," said Beth Givens, founder and executive director of the Privacy Rights Clearinghouse.

Learn more about RFIDs.

Contacts:

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

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

Related Issues:
February 25, 2005

Discussion with Defendants and Friends-of-the-Court on the Day Briefs Are Filed

Washington, DC - The Electronic Frontier Foundation (EFF) and Washington, DC-based Public Knowledge will host a press conference on Tuesday, March 1 to discuss briefs filed by defendants and friends-of-the-court that day in MGM v. Grokster. The case, which will be argued before the US Supreme Court on March 29, concerns whether manufacturers of peer-to-peer file-sharing software Grokster and StreamCast (makers of Morpheus) should be held liable for the copyright infringements of their users.

Media professionals attending this event will hear from the defendants in the case, attorneys, and representatives from several groups that have filed friend-of-the-court (amicus) briefs. Amici supporting the defendants include venture capitalists, consumer electronics companies, law professors, consumer groups, economists, and technology researchers.

The press conference will take place Tuesday, March 1, at 2:00 p.m. EST. Journalists are invited to attend the live event at the offices of Public Knowledge (1875 Conn. Ave, NW #650, Washington, DC) or phone in via teleconference.

Confirmed attendees include:

* Fred von Lohmann, Electronic Frontier Foundation, counsel for Streamcast, one of the peer-to-peer companies being sued
* Mike Weiss, CEO of Streamcast
* Michael Page, attorney for Grokster
* Gigi Sohn, president of Public Knowledge
* Mark Cooper, Consumer Federation of America
* Gary Shapiro, president of the Consumer Electronics Association
* Ed Black, president of Computer and Communications Industry Association

Contacts:

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

Annalee Newitz
Policy Analyst / Media Coordinator
Electronic Frontier Foundation
annalee@eff.org

Related Issues:
February 23, 2005

Apple Agrees to Delay Subpoenas Until March 4 Hearing

San Jose - After negotiations with the Electronic Frontier Foundation (EFF), Apple agreed on Friday to extend the deadline on a subpoena it issued to an online journalist's Internet service provider (ISP) until after a hearing that will determine whether the subpoena is legal under the First Amendment and California's reporter's shield law. The subpoena seeks information about the journalist's confidential sources and unpublished notes for an article about a future Apple product.

On March 4, EFF will meet Apple's attorneys in Santa Clara County Superior Court to argue that the subpoena and others like it are unlawful because online journalists are protected by the same "reporter's privilege" laws that shield print journalists from having to reveal their confidential sources and unpublished notes. EFF will ask that the court issue a protective order making it official that journalists for AppleInsider and PowerPage do not have to respond to subpoenas seeking confidential news sources.

Apple is currently suing several "John Does" for allegedly leaking trade secrets about a product code-named "Asteroid" to the online journalists. After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find the person who told the journalist about "Asteroid."

At the March 4 hearing EFF will argue that the reporter's privilege extends to information stored by third parties such as a reporter's email provider. It will urge the court to reject Apple's attempt do an "end run" around the reporters privilege by subpoenaing the journalist's ISP rather than the journalist himself.

"The reporter's privilege against disclosing confidential sources protects web publishers like AppleInsider and PowerPage just as it protects newspapers and TV networks," said EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. "If the reporter's privilege is to continue to protect the free flow of information in the digital age, it must apply to reporters' confidential communications even when they are held by third-party Internet service providers."

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Related Issues:
February 23, 2005

EFF Asks Court to Protect Academic and Competitive Studies

Washington, DC - Three consumer advocacy groups including the Electronic Frontier Foundation (EFF) asked the Supreme Court today to protect scientific researchers from patent-based legal threats. The case, Merck v. Integra, deals specifically with information researchers submitted to the Food and Drug Administration regarding a potential cure for cancer. But it raises broader questions about whether patent owners can stop academic researchers and inventors from studying patented inventions in order to research or improve upon them.

In their friend-of-the-court brief, EFF, Public Knowledge, and the Consumer Project on Technology argued that patent law allows researchers the freedom to make and use patented products for the purpose of furthering academic study. They also argued that experimentation on patented items for the purpose of creating new inventions is also allowed -- as long the patented products aren't sold by the researchers.

"Patent law was created to help spread knowledge and spur innovation," said Jason Schultz, staff attorney at EFF. "Allowing patent owners to shut down important scientific research flies in the face of that purpose."

"The Court has the opportunity here to do tremendous good for society, by making clear that scientists have always been and remain free to perform research -- and competitors to innovate -- without being subject to the threat of patent infringement litigation or the tax of patent licenses," noted Joshua Sarnoff of American University's Glushko–Samuelson Intellectual Property Law Clinic, counsel of record on the brief.

The Supreme Court will hear arguments on the case this spring, likely in April, and issue a decision by mid-summer.

Contact:

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

Related Issues:
February 23, 2005

Public Comment Welcome at Feb. 28 Meeting About E-voting Machines

Texas - The ACLU and the Electronic Frontier Foundation (EFF) recently won a preliminary injunction in their lawsuit against the state of Texas concerning whether the Texas Open Meetings Act applies to voting technology certification meetings of the state's election examiners. As part of this victory, Texas will hold its first-ever public meeting discussing proposed voting systems. Any vendor who wants to sell a system in Texas, or even ship an upgrade to its existing software, is required to go through the Texas certification process.

The public meeting will be held on Monday morning, February 28, from 8:30 a.m. until noon, in the 2nd floor conference room of the Rusk Building (208 E. 10th St., Austin). Products from three vendors will be discussed: Diebold, ES&ampS, and AccuPoll. The proposed AccuPoll system includes a ballot printer. If certified, it would be the first "voter-verifiable paper ballot" electronic voting system available in Texas.

Following each vendor's presentation there will be a public comment period. Members of the public may speak for five minutes, including asking questions of the vendors or examiners. The meeting will focus on how the examiners determine whether or not any vendor's product meets state requirements.

"We're hoping that this meeting will open the door to more public access to the voting systems selection process in Texas, and will support reform efforts being made in the Texas legislature," said Dan Wallach, a professor of computer science at Rice University and expert in voting system security issues.

"Elections need to become more transparent across the board," added Matt Zimmerman, staff attorney for EFF. "Not only does election technology need to permit voters to verify their votes, the process for selecting that technology needs to be open to public scrutiny. While this is a small step forward, and much work remains to be done, it is nevertheless an important step for the voters of Texas."

Check here for more information about E-voting.

Contact:

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

Related Issues:
February 22, 2005

EFF Releases HD PVR Cookbook and Build-In Kit

San Francisco - Today the Electronic Frontier Foundation (EFF) announced the next stage in its challenge to the Federal Communications Commission's "Broadcast Flag" technology mandate. The organization released a step-by-step guide, the "HD PVR Cookbook," that teaches people how to build a high-definition digital television (HDTV) recorder unaffected by the technological constraints of the Broadcast Flag. In addition, EFF is encouraging people to protest the FCC rule by holding Build-Ins -- gatherings around the country to build unfettered HDTV recorders and experience first-hand the kind of innovation stifled by the government mandate.

The Broadcast Flag, which places copy controls on DTV signals, is aimed at stopping people from making digitally perfect copies of television shows and redistributing them. Yet it also stops people from making perfectly legitimate personal copies of broadcasts. More disturbing, the Broadcast Flag will outlaw the manufacture and import of a whole host of TiVo-like devices that send DTV signals into a computer for backup, editing, and playback. After the Broadcast Flag regulations go into effect, all personal video recorder (PVR) technologies must be Broadcast Flag-compliant and "robust" against user modification -- and that means, once again, that the entertainment industry is trying to tell you what you can do with your own machines.

Now individuals can fight back by hosting a Build-In before the Broadcast Flag goes into effect on July 1, 2005. EFF held the first Build-In at its offices in late January, inviting a number of local programmers, TV fans, and bloggers to try out the Cookbook and test-bake their own HDTV recorders using standard computers equipped with HD tuner cards. The results were smashing: the dozen attendees created five working PVRs over the course of the day, using the KnoppMyth distribution of the open-source MythTV software package. Groups who want to host their own Build-Ins can contact EFF for a "Throw Your Own Build-In" kit, which includes a hard copy of the HD PVR Cookbook, a KnoppMyth CD-ROM, and (of course!) free EFF t-shirts and stickers.

EFF releases its technological challenge to the Broadcast Flag on the same day that the organization and other civil liberties groups challenge the FCC in the courtroom. In ALA v. FCC, the groups -- including the American Library Association and Public Knowledge -- argue that the FCC has overstepped its authority in mandating the Broadcast Flag and that the rule should be struck down.

"Even as we're suing the FCC to stop this interference with technological innovation, we're also helping television watchers to get off the couch and build their own fully capable PVRs," said EFF Special Projects Coordinator Wendy Seltzer, who organized the Build-In. "Every MythTV built helps demonstrate the creative development that may be cut off by bad regulation."

Contacts:

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

February 17, 2005

Victory for Students, Parents and Civil Liberties Groups

NOTE: This is a press release from the ACLU of Northern California that EFF is passing along for your information.

San Francisco - The Sutter-based company InCom announced last night, at a packed special school district meeting, that it would end its pilot program that required students to wear radio frequency identification badges that tracked the students' movements. The company pulled out when parents and civil liberties groups mobilized to end the program. On February 7, the ACLU of Northern California (ACLU-NC), Electronic Frontier Foundation (EFF), and the Washington-based Electronic Privacy Information Center (EPIC) sent a letter to the school district urging the school officials to end the program after being contacted by the parents.

"We are pleased that InCom is pulling out -our children never should have been tagged like pieces of inventory or cattle," said Michele Tatro, one of the parents that fought to end the tracking program. "The RFID tags violated the students' privacy, they were demeaning, and it put them in danger."

"Monitoring children with RFID tags is a very bad idea. It treats children like livestock or shipment pallets, thereby breaching their right to dignity and privacy they have as human beings. Any small gain in administrative efficiency and security is not worth the money spent and the privacy and dignity lost," said Cédric Laurant, Policy Counsel with EPIC.

Dawn Cantrall, parent of a 7th grader added: "We are proud that we stopped it here in Sutter and we will continue to fight to make sure that no child is ever forced to have an RFID badge. As parents, it is our duty to keep our children safe and it is not safe to have tracking devices in student badges."

"This is a tremendous victory for the students and families of Sutter," said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU-NC. "However, this is not just an issue affecting school children. The potential use of RFIDs in other identity documents, such as driver's licenses and medical cards, should be of concern to all Californians. RFIDs in identity documents is an issue that requires a statewide response and we plan to encourage legislative action on this front," she added.

"We're happy for the kids in Sutter, and grateful to those parents who stood up for family privacy and security. We hope it will be a wake-up call to parents and kids across the nation," said Lee Tien of EFF.

The tracking program was introduced on January 18th without any notification to the parents. Students in the small farm town of Sutter were required to wear ID cards around their necks with their picture, name, grade, school name, class year and four-digit school ID number and the RFID tags. Parents only found out about the program when their children came home wearing the tracking devices.

Here is more information about RFIDs.

Contacts:

Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

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

Related Issues:
February 17, 2005

New White Paper Outlines How Click-Through Agreements Erode Privacy, Fundamental Liberties

San Francisco - Today the Electronic Frontier Foundation (EFF) released a white paper warning consumers about how they can be harmed by end user license agreements (EULAs) for consumer electronics and online services. Many EULAs contain terms that damage consumer interests, including invitations for vendors to snoop on users' computers, prohibitions on publicly criticizing the product in question, and bans on customizing or even repairing purchased devices.

"Overbroad EULAs are one of the greatest threats to consumer rights in the high tech industry," said Annalee Newitz, EFF policy analyst and author of the white paper. "Few people realize that simply visiting a website or downloading a software update may constitute 'agreeing' to a EULA that permits third parties to monitor your communications or allows a vendor to dictate what you can or cannot do with the product you've bought. Clicking the 'I Agree' button may mean clicking away your privacy, freedom of speech, or other rights."

EULAs, often called "click-through agreements," have become ubiquitous in the technology industry. While they are supposed to bind consumers to strict terms dictated by vendors, consumers don't negotiate them, don't sign them, and in many cases can't even read them until after they've bought the product, taken it home, and opened up the package.

EFF's white paper, "Dangerous Terms – A User's Guide to EULAs," comes at a key juncture in the case of Davidson (commonly known as Blizzard) v. Internet Gateway, a lawsuit that tests whether EULAs can override public protections under federal copyright law such as the fair use doctrine. Tomorrow, lawyers for Blizzard will file an appeal brief arguing that three open source programmers violated Blizzard Entertainment's EULA by creating bnetd, a free game server whose creation was a fair use under copyright law. EFF is co-counsel to the defendants in the case, which is currently on appeal in the Eighth Circuit.

EFF is also in the process of devising legal strategies to challenge EULAs. This white paper is intended to educate the public, but also to serve as a call to arms for consumers who want to fight unfair terms in EULAs. EFF invites people who have been harmed by EULA terms, or who have been threatened with lawsuits for violating terms in EULAs, to contact EFF with their stories.

Consumers harmed by EULAs can contact EFF at: EULAharm@eff.org

Contact:

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

February 16, 2005

BayFF Event to Feature Cool Gizmo Demos, Discussion of Legal Threats to Inventors

San Francisco - The Electronic Frontier Foundation (EFF) invites the public to join EFF staff members next week in a discussion and celebration of high-tech innovation. The event is part of EFF's BayFF series and will feature product demos of cutting-edge digital media gadgets from San Francisco Bay Area companies Elgato Systems, Slim Devices, and Sling Media. There will also be a panel discussion with EFF experts about how the public can join the fight to protect the pro-innovation environment that makes these high-tech inventions possible.

For the past 20 years, the "Betamax doctrine" has protected innovators from lawsuits and encouraged them to create exciting new applications for older technologies. But with the Supreme Court hearing of MGM v. Grokster at the end of March, we may see big changes in the law, with potentially dire consequences for innovation. How do we ensure that technologists keep the freedom necessary to create the next-generation iPods and TiVos?

This BayFF gathering will be held on Tuesday, February 22, from 7:00 to 9:30 p.m., at 111 Minna, a gallery/nightclub in downtown San Francisco. The evening will also include refreshments and a cash bar. Come to learn, mingle, and meet the EFF staff and friends. This event is free and open to the public. Because 111 Minna serves alcohol, attendees must be over 21.

Contact:

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

February 14, 2005

Seeks to Stop Apple From Undermining Reporter's Privilege

Santa Clara County, CA - Today the Electronic Frontier Foundation (EFF) asked a California Superior Court for a protective order that would prevent Apple Computer from forcing three online journalists to identify their confidential sources and hand over unpublished materials. EFF, serving as co-counsel for the journalists, argues that online journalists are protected by the same "reporter's privilege" laws that shield print journalists from having to reveal the names of anonymous sources.

The case began in December 2004, when Apple obtained a court order allowing the company to issue subpoenas aimed at discovering the identities of 20 "Does" who allegedly leaked information about upcoming Apple products to AppleInsider.com and PowerPage.org. After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find out who told the journalist about an upcoming product code-named "Asteroid."

"Rather than confronting the issue of reporter's privilege head-on, Apple is going to this journalist's ISP for his emails," said EFF Staff Attorney Kurt Opsahl. "This undermines a fundamental, First Amendment right that protects all reporters. If the court lets Apple get away with this, and exposes the confidences gained by these reporters, potential confidential sources will be deterred from providing information to the media, and the public will lose a vital outlet for independent news, analysis, and commentary."

Supporting EFF in this argument are Professor Tom Goldstein, Director of the Mass Communication Program and former Dean of the Journalism School at the University of California at Berkeley, and Dan Gillmor, noted Silicon Valley journalist and founder of Grassroots Media Inc., both of whom filed declarations stating their expert opinion that the writers for PowerPage and Apple Insider are journalists just like the writers for traditional newspapers and magazines. Acting as co-counsel with EFF are Thomas Moore III of Tomlinson Zisko LLP and Richard Wiebe of the Law Office of Richard Wiebe.

In its request for the protective order, EFF points out that reporter's privileges protect the anonymity of sources regardless of whether third parties hold a journalist's records.

Contacts:

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

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

Related Issues:
February 7, 2005

Parents and Civil Liberties Groups Urge School District to Terminate Use of Tracking Devices

NOTE: This is a press release from the ACLU of Northern California that EFF is recirculating for your information.

San Francisco - Parents in a northern California public school district and civil liberties groups are urging a school district to terminate the mandatory use of Radio Frequency Identification tags (RFIDs) by students. Several civil liberties groups, including the ACLU of Northern California (ACLU-NC), Electronic Frontier Foundation (EFF), and the Electronic Privacy Information Center (EPIC) sent a letter today expressing alarm at the Brittan School District's use of mandatory ID badges that include a RFID device that tracks the students' movements. The device transmits private information to a computer on campus whenever a student passes under one of the scanners. The ID badges also include the student's name, photo, grade, school name, class year and the four-digit school ID number. Students are required to prominently display the badges by wearing them around the neck at all times.

"Forcing my child to be tracked with a RFID device – without our consent or knowledge – is a complete invasion of our privacy," said Michael and Dawn Cantrall. "Our 7th grader came home wearing the ID badge prominently displayed around her neck– if a predator wanted to target my child, the mandatory school ID card has just made that task easier." The Cantralls filed a formal complaint against the Brittan Elementary School Board in Sutter, California on January 30th after meeting with several school officials.

In a letter dated February 7, sent to the Brittan Board of Trustees, the civil liberties groups "urge the school board to recognize the serious safety and civil liberties implications" and call the for the School Board to "terminate this ill-advised test immediately."

"We are sending the letter today because a School Board meeting is scheduled for tomorrow night and we want to make sure that the District reconsiders the issue," said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU-NC. "RFID technology is inappropriate for use in schools. The badges jeopardize the safety and security of children by broadcasting identity and location information to anyone with a chip reader and subjects students to demeaning tracking of their movements."

"The monitoring of children with RFID tags is comparable to the tracking of cattle, shipment pallets, or very dangerous criminals in high-security prisons. Compelling children to be constantly tracked with RFID-trackable identity badges breaches their right to privacy and dignity as human beings. Forcing children to wear badges around their necks displaying such sensitive information as their name, picture, grade and school exposes them to potential discrimination since the name of their school may disclose their religious beliefs or social class," said Cédric Laurant, Policy Counsel with EPIC.

Jeffrey and Michele Tatro, parents of a thirteen-year-old student at Brittan Elementary School, added: "It is our goal that no child in the United States be tagged or tracked. We want it to be stopped here, in Sutter California, and we don't want any child to be tracked anywhere. Our children are not pieces of inventory."

"It is dehumanizing to force these children to wear RFIDs, and their parents are rightfully outraged," said Electronic Frontier Foundation senior staff attorney Lee Tien. "We are doing everything we can to support the parents in this fight to protect student privacy."

Get more information about RFIDs in schools.

Contacts:

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

Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Related Issues:
February 7, 2005

Logfinder Helps Eliminate Unwanted Logging of Personal Data

San Francisco, CA - Today the Electronic Frontier Foundation (EFF) released logfinder, a software tool to help people reduce the unnecessary collection of personal information about computer users. Often computer network servers automatically log information about who has visited a website and when, or who has sent and received email. Such data tells a lot about a user's browsing and email habits and could be used in privacy-invasive ways. Moreover, log data must be turned over to government entities with court orders and can be subpoenaed by opposing sides in court cases.

By finding unwanted log files, logfinder informs system administrators when their servers are collecting personal data and gives them the opportunity to turn logging off if it isn't gathering information necessary for administering the system.

Logfinder was conceived by security consultant Ben Laurie and written by EFF Staff Technologist Seth Schoen. It's intended to complement EFF's recent white paper, "Best Practices for Online Service Providers," in which the organization argues that administrators should remove as many logs as possible and delete all personally identifying data from them.

"People who choose to follow our recommendations in the white paper might not know what kinds of logs they have," said Schoen. "Logfinder is an example of one way a system administrator could become aware of the presence of logs, as well as discover sensitive information being collected in known logs."

Download logfinder.

Contacts:

Seth Schoen
Staff Technologist
Electronic Frontier Foundation
seth@eff.org

Chris Palmer
Technology Manager
Electronic Frontier Foundation
chris@eff.org

Related Issues:
January 27, 2005

Requires "Sunshine" in Process of Choosing E-voting Machines

Texas - A Texas court ruled today that state voting examiners may no longer bar the public from their meetings. In the case, ACLU of Texas v. Connor, the plaintiffs argued that the Texas Open Meetings Act should apply to meetings of the voting examiners. These meetings are used to decide what kinds of electronic voting machines will be used in upcoming elections. The Electronic Frontier Foundation (EFF) was co-counsel in the case.

"The court rightly rejected Texas' policy of shutting the public out of the processes for selecting voting technologies. The need for public trust in our election systems cannot be overstated, and this is a terrific step forward for the voters of Texas," said EFF Staff Attorney Matt Zimmerman.

The voting examiners are responsible for studying electronic voting machines and other voting technologies and recommending to the Secretary of State which systems should be certified for use in Texas. In the past few years, the Secretary of State routinely adopted the recommendations of the panel yet rebuffed efforts by the public to observe the proceedings, claiming that the panel is not subject to Texas' Open Meetings Act.

"I'm not at all surprised at this ruling," added Jon Lebkowsky of EFF-Texas, one of the plaintiffs in the case. "What surprised me was that the meetings weren't open in the first place!"

Recently, the Texas Safe Voting Coalition obtained videotapes of previous meetings, including one involving Diebold Election Systems, that suggest a lack of rigor and failure to address proper security and certification compliance issues.

"This ruling allows specialists in areas including computer security, accessibility, and minority rights to offer their own skills to complement the state's official election examiners," said Dan Wallach, an assistant professor in the Department of Computer Science at Rice University and outspoken critic of poorly designed electronic voting systems.

More on e-voting here.

Contacts:

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

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

Related Issues:
January 24, 2005

Project Demonstrates How Bad Law Ruins the Environment for Innovation

San Francisco - A new project of the Electronic Frontier Foundation (EFF) highlights the way misguided laws and lawsuits can pollute the environment for technological innovation. "Endangered Gizmos" is a natural history of technologies from the Betamax VCR to filesharing software that have been threatened or extinguished through ruthless litigation. The "Endangered Gizmos List" gives readers the vital statistics on a host of gadgets, along with steps they can take to save those that haven't yet been killed off.

The list also includes devices that have been saved by good laws. The VCR, for example, was rescued from extinction by the Supreme Court's landmark ruling in Universal v. Sony, which shielded the Sony Betamax VCR from being declared unlawful simply because people could use it to infringe copyright.

"Endangered Gizmos" debuts the same day that the opening briefs are being filed in MGM v. Grokster, a Supreme Court case the outcome of which could render extinct several currently legal technologies. The public-education project complements EFF's work defending StreamCast Networks in that case.

"This isn't about saving one or two geeky gadgets. It's about fostering technological development by letting products be designed by technologists, rather than Congress and the courts," said EFF Staff Attorney Wendy Seltzer. "What we're seeing is the beginning of the extinction of both current and future gadgets, due to a mix of proposed law, litigation, and overreaching use of existing law. Lawsuits are destroying future technological progress by killing off today's best innovations."

EFF will continue to post new profiles of at-risk technologies on the Endangered Gizmos website on a regular basis. "We hope the ranks of 'saved' gizmos will grow faster than the 'endangered' list," said Seltzer. "But until laws stop killing innovation, we'll be counting the bodies."

Contact:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

January 20, 2005

Washington, DC - The US Supreme Court set the date for the oral argument in MGM v. Grokster for March 29, 2005, in Washington, DC. EFF is defending StreamCast Networks, the company behind the Morpheus peer-to-peer (P2P) software, against 28 of the world's largest entertainment companies.

The companies first brought this lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products in 2001, hoping to obtain a legal precedent that would hold all technology makers responsible for the infringements committed by the users of their products. The entertainment companies lost in District Court, then lost again on appeal to the Ninth Circuit Court of Appeals.

The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

On March 29, the Supreme Court will hear oral arguments from both sides. A final ruling is expected by the end of July 2005.

Contacts:

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

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

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January 14, 2005

EFF Demands Answers from DOJ about PATRIOT Act Surveillance

Washington, DC - Today the Electronic Frontier Foundation (EFF) filed a Freedom of Information Act (FOIA) request with the FBI and other offices of the US Department of Justice, seeking the release of documents that would reveal whether the government has been using the USA PATRIOT Act to spy on Internet users' reading habits without a search warrant.

At issue is PATRIOT Section 216, which expanded the government's authority to conduct surveillance in criminal investigations using pen registers or trap and trace devices ("pen-traps"). Pen-traps collect information about the numbers dialed on a telephone but do not record the actual content of phone conversations. Because of this limitation, court orders authorizing pen-trap surveillance are easy to get -- instead of having to show probable cause, the government need only certify relevance to its investigation. Also, the government never has to inform people that they are or were the subjects of pen-trap surveillance.

PATRIOT expanded pen-traps to include devices that monitor Internet communications. But the line between non-content and content is a lot blurrier online than it is on phone networks. The DOJ has said openly that the new definitions allow pen-traps to collect email and IP addresses. However, the DOJ has not been so forthcoming about web surveillance. It won't reveal whether it believes URLs can be collected using pen-traps, despite the fact that URLs clearly reveal content by identifying the web pages being read. EFF made its FOIA request specifically to gain access to documents that might reveal whether the DOJ is using pen-traps to monitor web browsing.

"It's been over three years since the USA PATRIOT Act was passed, and the DOJ still hasn't answered the public's simple question: 'Can you see what we're reading on the Web without probable cause?'" said Kevin Bankston, EFF Staff Attorney and Bruce J. Ennis Equal Justice Works Fellow. "Much of PATRIOT is coming up for review this year, but we can never have a full and informed debate of the issues when the DOJ won't explain how it has been using these new surveillance powers."

The law firm of DLA Piper Rudnick Gray Cary assisted EFF in preparing the FOIA request and will help with any litigation if the DOJ fails to respond.

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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January 14, 2005

Lawsuit Pushes for Public Access to Meetings Where E-voting Machines Are Evaluated

Austin, TX - On January 19, a Texas court is scheduled to determine whether to force the state's voting examiners to open their meetings to the public. The ACLU of Texas and a Texas voter filed a lawsuit last year, ACLU of Texas v. Geoffrey S. Connor, demanding that the public be admitted to meetings where the examiners decide which electronic voting machines to certify. While these groups waited for a response from the court, the examiners held yet another closed meeting on January 4 and 5.

"There's no technical reason for keeping these meetings closed to the public," said Dan Wallach, a Rice University computer science professor and outspoken critic of electronic voting systems. "By allowing outside experts in security, accessibility, and election procedure to attend the meetings, the voting system vendors will receive better feedback from the ultimate users of the machines. Likewise, if outside experts find problems, the state can demand the vendors address those problems before the machines are used in the field."

Recently, the Texas Safe Voting Coalition obtained videotapes of previous meetings, including one involving Diebold Election Systems, that suggest a lack of rigor and failure to address properly security and certification compliance issues. If the court grants a temporary injunction on the 19th, the voting examiners will have to admit the public to certification meetings.

"Closed meetings about these controversial voting machines create a troubling perception," said Jon Lebkowsky, President of the Electronic Frontier Foundation-Austin. "How can a citizen trust a certification process that's hidden from view? This sort of thing is exactly why we have an Open Meetings Act."

If the injunction is granted, the Texas Secretary of State has promised that the state will host a "public forum" where officials will discuss for the first time the issues they considered in their private meeting earlier this month.

"Transparency in voting systems is one of the most important ways we ensure that our votes count," said Cindy Cohn, Legal Director of the Electronic Frontier Foundation (EFF), which is serving as co-counsel in the case. "Transparency needs to start from when voting machines are chosen and end with the final vote tally, including any necessary recounts."

The voting examiners are responsible for studying electronic voting machines and other voting technologies and recommending to the Secretary of State which systems should be certified for use in Texas. In the past few years, the Secretary of State has routinely adopted the recommendations of the panel, yet he has rebuffed efforts by the public to observe the proceedings, claiming that the panel is not subject to Texas' Open Meetings Act.

Here's the original complaint.

More on e-voting issues.

Contacts:

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

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

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January 13, 2005

Outcome of BnetD Case Could Eliminate Software that Extends the Gaming Experience

Eighth Circuit - Yesterday the Electronic Frontier Foundation (EFF) filed a brief in the Eighth Circuit Court of Appeals arguing that federal law forbids videogame corporation Blizzard from interfering with gamers' ability to create new products to enhance their game experience. EFF is co-counsel for the defendants in Davidson v. Internet Gateway, a case on appeal from a district court in St. Louis. The district court held that an open-source software gaming server called BnetD was unlawful because its makers had violated Blizzard's End User License Agreement (EULA) and portions of the Digital Millennium Copyright Act (DMCA).

BnetD lets gamers play popular Blizzard titles like Warcraft with other gamers on servers outside of Blizzard's Battle.net service. To create BnetD, a group of volunteer programmers reverse-engineered a protocol in Battle.net, using the information to give players access to the BnetD server. Blizzard argues that this act violated a clause in its EULA that forbids reverse-engineering. In its brief, EFF argues that federal copyright law, which allows reverse-engineering in cases of fair use, trumps Blizzard's EULA. Because the BnetD programmers created a product that is interoperable with Blizzard games, their actions fall squarely within the definition of fair use. EFF also argues that the DMCA specifically allows for fair use reverse-engineering.

If it stands, the lower court's decision would make it unlawful in most cases to reverse-engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own.

"The Eighth Circuit's decision will strongly impact the health of the videogame industry," said Jason Schultz, an EFF staff attorney working on the case. "If companies are able to use EULAs and the DMCA to eliminate competition in the marketplace, videogame consumers will suffer, as will consumers of electronics in other industries affected by this ruling."

Along with EFF, Paul Grewal and Richard Lin of Day Casebeer Madrid &amp Batchelder LLP are serving as pro bono co-counsel to the BnetD programmers. Counsel has asked the Eighth Circuit to hear oral arguments in the case, but the court has yet to decide if it will hear them.

Contacts:

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

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January 12, 2005

Lawsuit Challenges Berkeley Election Officials in Measure R Recount

Berkeley, CA - A close proposition referendum will come under court examination in a case that highlights major problems with conducting a recount using Diebold electronic voting machines. Berkeley Measure R, the Patient's Access to Medical Cannabis Act of 2004, lost by only 191 votes after the regular election on November 2, 2004. Under the law, the proponents were entitled to seek a recount, which they did.

Instead of attempting to ensure that the votes were counted correctly, however, Alameda County election officials engaged in a "going through the motions" exercise where they merely ran the same electronic vote data through the same counting machines and, predictably, reached the same result. They did not consult the machines' audit logs, redundant memories, or any other relevant materials. Yesterday, the county announced that the recount had failed to change the result. They altered the final margin of defeat to 166 votes, attributing the change to absentee and provisional ballots -- the electronic voting machine count remained the same.

Measure R proponents Americans for Safe Access filed a lawsuit on December 30 challenging the actions of county election officials in handling the electronic voting machine portion of the recount. This suit now awaits a hearing.

"California law guarantees every voter the right to a recount and requires election officials to produce for public review all materials relevant to that recount," said Gregory Luke, attorney at the Santa Monica firm of Strumwasser &amp Woocher, which represents the plaintiffs Americans for Safe Access, and three individual Berkeley voters. "Because the Diebold machines purchased by Alameda County do not retain any ballots for the purpose of a recount, election officials must, at the very least, look at the information produced by the system's existing security features to give voters some circumstantial evidence that the machines performed properly and that vote data was not damaged or altered. Alameda County's refusal to allow the public to examine the audit logs and redundant memory renders the so-called 'recount' they conducted utterly meaningless."

"While it was easy to watch the recount of the paper ballots to make sure every vote was counted, the recount from the electronic voting machine was simply a 'rerun' of the original election results and gave us no assurance that the results were correct," added Debby Goldsberry of Americans for Safe Access.

"Recounts are one of the most important ways we detect vote fraud and error," said Matt Zimmerman, staff attorney for the Electronic Frontier Foundation, which is consulting on the case. "Even after Californians have voter-verified paper trails in 2006, it will be important to ensure that audit logs, redundant memory, and other security measures are checked during a recount, along with the paper trails. Banks and credit card issuers use these measures to make sure our financial transactions are safe. Our votes deserve at least as much protection."

Americans for Safe Access is the largest national grassroots coalition working to protect the rights of patients and doctors to legally use marijuana for medical purposes. Measure R would have relaxed zoning laws for dispensaries, set up a peer review committee to oversee operations at the city's dispensaries, and replaced the city's current limit with one linked to a patient's need as defined by his or her physician.

A hearing in Alameda Superior Court is currently set for March 2.

Contacts:

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

Gregory Luke
Strumwasser &amp Woocher LLP
gluke@strumwooch.com

Hilary McQuie
Americans for Safe Access
+1 510 486-8083 (office)

Related Issues:
January 10, 2005

EFF Defends Rights of Reporters Who Published Asteroid News Stories on Blogs

Santa Clara, CA - Only weeks before Macworld, the nation's biggest annual trade show devoted to Apple products, Apple sent legal threats to the publishers of the Mac-centric weblogs AppleInsider and PowerPage for posting information about a product code-named "Asteroid." Apple-watchers believe this product will be announced at Macworld. The Electronic Frontier Foundation (EFF) is representing the publishers to protect their right to keep confidential the identities of the people who supplied them with the information.

On December 13, Apple filed suit against "Does 1-20" in a Santa Clara court. The company obtained a court order that allows it to issue subpoenas to AppleInsider and PowerPage for the names of the "Does" who allegedly leaked the information in question. EFF is defending the publishers against these subpoenas, arguing that the anonymity of bloggers' sources is protected by the same laws that protect sources providing information to journalists.

"Bloggers break the news, just like journalists do. They must be able to promise confidentiality in order to maintain the free flow of information," said EFF Staff Attorney Kurt Opsahl. "Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society."

"I am very disappointed by Apple's behavior and its new policy of issuing legal threats to its best customers," added Jason O'Grady, publisher of PowerPage. "Is corporate paranoia really more important than the First Amendment?"

Contacts:

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

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January 4, 2005

Ruling in Charter Case Smashes DMCA Subpoena Powers

The Eighth Circuit Court of Appeals issued a decision today that will stop entertainment corporations from gaining access to the names of people using peer-to-peer (P2P) networks unless the companies file lawsuits against them and furnish actual evidence of copyright infringement.

The case was sparked by a series of subpoenas sent by the Recording Industry Association of America (RIAA) to Missouri-based Internet service provider (ISP) Charter Communications, Inc. The record companies claimed that these subpoenas, which demanded that Charter identify customers accused of offering infringing music on P2P networks, were authorized by the Digital Millennium Copyright Act (DMCA).

The Electronic Frontier Foundation (EFF), along with 21 other groups, including the American Civil Liberties Union (ACLU), the Consumer Federation of America (CFA), and the Computer &amp Communications Industry Association (CCIA), filed a "friend of the court" brief in the Charter case, urging the Eighth Circuit to determine that the same strong protections applied to anonymous speech in other contexts also apply when copyright infringement is claimed but has not yet been proven. In a victory for privacy and anonymity, the Eighth Circuit determined that DMCA subpoenas could not be used to get this information.

EFF Staff Attorney Wendy Seltzer noted that the RIAA has already changed its tactics for the better in current suits against filesharers. In these new cases, record companies generally file suit against "John Does." Said Seltzer, "In the 'Doe' lawsuits RIAA members are currently filing, a judge oversees the discovery process and can help protect ISP customers before their names are revealed." EFF has filed amicus briefs in several of the Doe cases, and some judges have limited the record labels' discovery of identities through mass lawsuits.

In December 2003, the DC Circuit ruled that the RIAA could not use the DMCA's non-judicial subpoenas to obtain subscriber identities from ISP Verizon Internet Services, Inc. "Charter should be congratulated for following in the footsteps of Verizon in standing up for the privacy of its users," said EFF Legal Director Cindy Cohn. The US Supreme Court rejected the RIAA's appeal of the Verizon case. Today's Eighth Circuit decision is an explicit endorsement of the DC Circuit's ruling.

Contacts:

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

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
December 21, 2004

Civil Liberties Group to Support Development of Anonymous Internet Communications System

San Francisco - Today the Electronic Frontier Foundation (EFF) announced that it is becoming a sponsor of Tor, a technology project that helps organizations and individuals engage in anonymous communication online. Tor is a network-within-a-network that protects communication from a form of surveillance known as "traffic analysis."

Traffic analysis tracks where data goes and when, as well as how much is sent, rather than the content of communications. Knowing the source and destination of Internet traffic allows others to track a person's behavior and interests. This can impact privacy in obvious and secondary ways. For example, an e-commerce site could choose to charge you more for particular items based on your country or institution of origin. It could also threaten your job or physical safety by revealing who and where you are.

"EFF is a great organization to work with," said Roger Dingledine, Tor's project leader, who, along with Nick Mathewson, is also a core developer. "EFF understands the importance of anonymity technology for everyone -- from the average web surfer, to journalists for community sites like Indymedia, to people living under oppressive regimes. With their support and experience, we can focus on making Tor useful and usable by everyone."

"The Tor project is a perfect fit for EFF, because one of our primary goals is to protect the privacy and anonymity of Internet users," said EFF Technology Manager Chris Palmer. "Tor can help people exercise their First Amendment right to free, anonymous speech online. And unlike many other security systems, Tor recognizes that there is no security without user-friendliness -- if the mechanism is not accessible, nobody will use it. Tor strikes a balance between performance, usability, and security."

Using Tor can help people anonymize web browsing and publishing, instant messaging, Secure Shell (SSH) protocol, and more. Tor also provides a platform on which software developers can build new applications with built-in anonymity, safety, and privacy features.

Non-technical introduction to Tor.

Technical introduction to Tor.

Contact:

Chris Palmer
Technology Manager
Electronic Frontier Foundation
chris@eff.org

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December 21, 2004

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce that it has been funded by the Omidyar Network, an organization that invests to help catalyze social change. This investment represents a partnership between two groups sharing key values and beliefs, and, ultimately, the goal of making a positive difference in the world.

"EFF's efforts are instrumental in preserving people's civil liberties as they extend to the online world," said Doug Solomon, Vice President of Investments at Omidyar Network. "The Internet, by design, is 'of the people, by the people, for the people,' and innovation depends on it staying that way."

"We hope that this is the beginning of a long and productive relationship," said EFF Director of Development Terri Forman. "Omidyar Network partners are dedicated to empowering innovation through bottom-up efforts. This perspective is very much a part of EFF's values."

Added EFF Executive Director Shari Steele, "We're pleased to join the many excellent groups that have already partnered with Omidyar Network."

About Omidyar Network

Omidyar Network seeks out investments that are "of the people, by the people, for the people." The Network is founded on the simple core belief that every individual has the power to make a difference. The Network exists for one single purpose: So that more and more people discover their own power to make good things happen. Since June 2004, Omidyar Network has funded efforts in a number of areas: microfinance, bottom-up media, open source, intellectual property, and electronic voting.

Contacts:

Terri Forman
Development Director
Electronic Frontier Foundation
terri@eff.org

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

December 10, 2004

The US Supreme Court today granted certiorari in MGM v. Grokster. The Court will hear oral arguments in the case in March 2005. The Electronic Frontier Foundation (EFF) represents one of the defendants in the case, StreamCast Networks, makers of the Morpheus peer-to-peer (P2P) software application.

"The copyright law principles set out in the Sony Betamax case have served innovators, copyright industries, and the public well for 20 years," said Fred von Lohmann, senior intellectual property attorney at EFF. "We at EFF look forward to the Supreme Court reaffirming the applicability of Betamax in the 21st century."

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November 29, 2004

EFF, ACLU Ask California Supreme Court to Restore Free Speech Protections for Internet Users and Service Providers

California - Last week the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Northern California (ACLU) filed a friend-of-the-court brief in a case that could undermine a federal statute protecting the free speech of bloggers, Internet service providers, and other individuals who use the Internet to post content written by others. The case in question is a libel suit filed against women's health advocate Ilena Rosenthal after she posted a controversial opinion piece on a Usenet news group. The piece was written not by Rosenthal, but by Tim Bolen, a critic of plaintiff Terry Polevoy.

In their brief, EFF and the ACLU argue that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others. Similar attempts to eliminate the protections created by Section 230 have almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors. The case is being reviewed by the California Supreme Court.

Lawyers for the plaintiffs argue that Rosenthal is liable because posting the comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit. If the court finds in favor of the plaintiffs, the implications for free speech online are far-reaching. Bloggers could be held liable when they quote other people's writing, and website owners could be held liable for what people say in message boards on their sites. The end result is that many people would simply cease to publish or host websites. In its brief, EFF argues that "the specter of civil liability chills the speech" of Internet service providers and users, and will inevitably lead to "protective self-censorship."

"Every other jurisdiction addressing Section 230 has given effect to Congress' broad protections and Internet speech has flourished as a result," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeals upset this settled law and we are simply asking the California Supreme Court to set things right."

"Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," said ACLU Staff Attorney Ann Brick. "The vitality of the Internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable."

Contacts:

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

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

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November 23, 2004

Northern California - A federal judge in California has put a roadblock in front of the movie studios' lawsuits targeting filesharers.

Last week, members of the Motion Picture Association of America (MPAA) filed eleven lawsuits against hundreds of people they accused of using file-sharing networks to share infringing copies of movies. They sued groups of "Does"
identified by numerical IP address and requested discovery of names from the users' ISPs. A Northern District of California judge found this bulldozer process improper, ordering the case to be put on hold for all but one of the defendants.

Judge William Alsup ruled that because claims against the 12 defendants were unrelated, yoking the defendants together into one big case was improper. "Such joinder may be an attempt to circumvent the filing fees by grouping
defendants into arbitrarily-joined actions but it could nonetheless appear improper under Rule 20," the order states. The Electronic Frontier Foundation has filed friend-of-the-court briefs objecting to similar misjoinder in many of the cases filed by the Recording Industry Association of America (RIAA) against alleged infringers.

"This decision helps to give due process rights to the Internet users accused of infringement," said EFF Staff Attorney Wendy Seltzer. "Lumping them together makes it more difficult for everyone to defend against these claims." EFF is also concerned about the movie studios' failure to produce evidence of infringement against even Doe #1 in this case.

Contact:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
November 18, 2004

New "Pseudo Copyright" for Broadcasters Will Harm the Global Public Interest

Geneva - This week, the World Intellectual Property Organization (WIPO) will hold a committee meeting to debate the merits of its proposed "Treaty on the Protection of Broadcasting Organizations." The Electronic Frontier Foundation (EFF) will be there to urge delegates to reject aspects of the treaty that would impoverish the public domain and thwart innovation.

EFF European Affairs Coordinator Cory Doctorow will present a letter to the committee on behalf of 20 technology companies and organizations that oppose including new webcasters' rights in the treaty.

"This coalition shatters the illusion that there is a technology consensus on this issue," said Doctorow.

The new pseudo-copyright for webcasters would curtail the public's ability to archive news footage or re-use broadcast material that is in the public domain. It would also require that all media players be closed-source, proprietary, and subject to the oversight and approval of the movie studios. EFF is joining several other non-government organizations (NGOs) in proposing an alternative draft of the treaty -- one that targets the problem of signal theft rather than adds these new rights.

Doctorow will also speak at the meeting about how digital rights management (DRM) technologies hinder technological progress. The proposed treaty would add DRM provisions for broadcasters similar to those the much-criticized US Digital Millennium Copyright Act (DMCA) gives to copyright holders.

In October, WIPO made a positive move by adopting a "development agenda" proposed by a number of developing countries and NGOs. This agenda makes explicit the organization's responsibility for considering the social and economic impact of its decisions. Doctorow will urge the organization to apply the public-interest principles outlined in the agenda to its consideration of DRM.

Doctorow will be live-blogging the WIPO meeting at the EFF website.

Contacts:

Gwen Hinze
Staff Attorney
Electronic Frontier Foundation
gwen@eff.org

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
November 17, 2004

Georgia - Electronic Frontier Foundation, Public Citizen, the American Civil Liberties Union, and ACLU Georgia filed an amicus brief yesterday supporting Cox Communication, Inc.'s efforts to protect the rights of its Internet customers. Cox moved to quash a subpoena from several record companies in a case called Arista Records, Inc. v. Does 1-100, which seeks the identities of Cox subscribers. Cox does not provide Internet service in Georgia, where the 100 Does were sued.

The amicus brief notes that it is unfair to force people living outside of Georgia to come to Georgia to defend their rights and also that it is unfair for the record companies to sue 100 people in the same lawsuit simply because it saves the record company money.

"Cox is taking an important step to protect the privacy of its customers," said EFF Staff Attorney Wendy Seltzer. "It's a basic matter of due process that Internet users should not have to seek counsel across the country in order to protect their right to anonymous speech."

EFF, Public Citizen, and the ACLU have joined in several briefs in similar cases arguing that due process must not be given short shrift in the record industry's lawsuit campaign.

The motion picture industry has started filing copycat suits across the country that are similarly flawed.

Contact:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
November 17, 2004

Washington, DC - A national coalition of voting rights and computer security experts will hold a post-election press conference to provide a preliminary analysis of electronic voting problems and solutions, and their implications for increasing voters' confidence in the legitimacy of elections.

Speakers will be:

- Kim Alexander, California Voter Foundation
- Lillie Coney, National Committee for Voting Integrity/Electronic Privacy Information Center
- David Dill, Ph.D., Verified Voting Foundation
- Will Doherty, Verified Voting Foundation/Election Incident Reporting System
- Chellie Pingree, Common Cause
- Matt Zimmerman, Electronic Frontier Foundation

WHEN: Thursday, November 18, 2004, 10:30 a.m. to 12:00 p.m.

WHERE: Cabinet Room, Beacon Hotel and Corporate Quarters (formerly Governor's House Hotel) 1615 Rhode Island Avenue, N.W., Washington, D.C. (Metro Stop: Dupont Circle or Farragut North)

The Election Verification Project is a coalition of technology, legal and voting rights organizations promoting transparency and accountability in the voting process. The Project advances reforms that reduce computerized voting risks, and fosters public confidence in the integrity and accuracy of the electoral process.

The California Voter Foundation is a nonprofit, nonpartisan organization promoting and applying the responsible use of technology to improve the democratic process. CVF-NEWS is a free, electronic newsletter featuring news and updates about the California Voter Foundation's projects and activities.

Contacts:

Faye Anderson
Election Verification Project
(718) 369-6059 cell

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

Related Issues:
November 16, 2004

Government Claims Need for Secrecy, Rebuffs Call for Open Access

San Antonio, TX - Today the Electronic Frontier Foundation (EFF) filed a reply brief in a federal court in Texas supporting its motion to unseal a secret court order. That order had led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists.

EFF filed its reply after the United States Attorney's Office in San Antonio, Texas, filed an opposition brief urging the federal court to refuse EFF's request to unseal. The opposition brief argued that secrecy was required to protect "an ongoing criminal terrorist investigation" and that the confidentiality provisions of a Mutual Legal Assistance Treaty (MLAT) trumped the rights of Indymedia in this case.

This marks the first time that the federal government has formally admitted to the secret order's existence. In its reply brief, EFF reminded the government that treaties are limited by the Bill of Rights, including the First Amendment right of access to court proceedings.

On October 7, the federal government secretly seized Indymedia's servers from San Antonio-based Rackspace Managed Hosting. Issued at the request of a foreign government, the seizure order resulted in more than 20 IMC websites and 10 streaming radio feeds being taken offline. Neither Rackspace nor the government has formally identified the foreign country that initiated the request, but language quoted in the government's refusal of EFF's first request matches a US treaty with Italy. Morena Plazzi, a deputy public prosecutor in Bologna, admitted that she requested server logs from Indymedia, but denied requesting a seizure.

"There are serious questions about whether the government or Rackspace overreached in responding to Italy's request," said Kurt Opsahl, EFF Staff Attorney. "The public needs to see the order so we can understand what went wrong and take steps to prevent this unconstitutional silencing of protected speech from happening again."

"The government's brief tacitly admits Italy issued the order, and the Italian government admits it sought information from Indymedia's servers," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "By keeping the order secret, the government appears to be trying to hide serious procedural errors that led to the seizure, rather than legitimately protecting the secrecy of a 'terrorism' investigation."

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

Related Issues:
November 12, 2004

Expanded Powers for Law Enforcement Are Dangerously Vague, Invasive

Earlier this week, the Electronic Frontier Foundation (EFF) filed comments with the Federal Communications Commission (FCC) objecting to the agency's plan to expand the reach of a law that forces communications service providers to build surveillance backdoors into their networks.

The Communications Assistance to Law Enforcement Act (CALEA), passed in 1994, forced telephone companies to redesign their network architectures to make wiretapping easier. It expressly did not regulate data traveling over the Internet. But earlier this year, law enforcement agencies petitioned the FCC to expand CALEA's reach to cover broadband providers so that it would be easier for law enforcement to tap Internet "phone calls" via Voice over Internet Protocol (VoIP) applications such as Vonage, as well as online "conversations" using various kinds of instant messaging (IM) programs like AOL Instant Messenger (AIM). The FCC responded with a "notice of proposed rulemaking" (NPRM), which proposes to introduce surveillance technology mandates to broadband Internet access and "managed" VoIP.

In its comments, EFF argues that this transformation in CALEA goes against the letter and the spirit of the law as it was originally written, which expressly ruled out information services like broadband.

"The NPRM relegates Congress' exclusion of information services to so much spilt ink," read the comments. Moreover, EFF argues, the rationale that law enforcement uses to justify its request -- that broadband has "significantly replaced" the telephone network -- is a misrepresentation that opens the door for CALEA to cover just about anything. "Any service that arguably replaces any portion of the prior telephony regime must look down the barrel of CALEA compliance."

In addition, the technological changes required by an expanded CALEA would undermine Internet security and subject new technologies to government review before they can be adopted for use with current Internet devices.

"Law enforcement already has the legal and technological means to access communications on the Internet," said EFF Staff Attorney Kurt Opsahl. "Expanding CALEA to cover broadband communication is not only unnecessary, it will retard innovation while depriving people of their privacy and security on the Internet."

Reply comments are due December 7.

Contact:

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

Related Issues:
November 12, 2004

EFF White Paper Reports on Collateral Damage to Free Expression in the Fight Against Spam

San Francisco - Today the Electronic Frontier Foundation (EFF) released a white paper (HTML - PDF) describing the effects of anti-spam technologies on free speech. "Noncommercial Email Lists: Collateral Damage in the Fight Against Spam" focuses on how groups running noncommercial email lists are being harmed by anti-spam techniques. The paper grew out of EFF's efforts to help MoveOn.org, human rights groups, parents' groups, and others, deliver email messages in the face of barriers that are aimed at stopping spam but that also stop wanted messages.

"When tools designed to prevent unwanted email also prevent wanted email from being delivered, or when anti-spam tools favor well-funded speakers over others, something fundamental to the health of Internet communication has been broken," write the authors of the paper, EFF Legal Director Cindy Cohn and EFF Policy Analyst Annalee Newitz, in the introduction. The paper goes on to explain how anti-spam technologies, such as blocklists, server-side filtering, bonded sender programs, and email authentication schemes like Sender-ID and DomainKeys, are often misused.

But there are solutions to the problem. In a section on best practices, EFF suggests ways that Internet Service Providers (ISPs) and other organizations handling email delivery can stop spam while preserving free speech. Recommendations include putting spam filtering preferences under the control of end users and making anti-spam mechanisms like blocklists more transparent. Also included are guidelines for email list managers that will reduce the likelihood that their mail will get incorrectly labeled as spam.

"Anti-spam technologies protect us against unwanted messages, but we need to do more to ensure that they don't also prevent us from receiving wanted speech," said Newitz. "Overbroad anti-spam measures have a significant impact on noncommercial mailing lists used by parents, political organizers, artists, and others. When anti-spam measures prevent people from participating in such communities, we need to rethink how we use them."

"Noncommercial mailing lists are one of the truly important free speech tools on the Internet, yet increasingly they face unfair, unseen, and unaccountable barriers due to overbroad and reckless anti-spam efforts," added Cohn. "If the government treated free speech this poorly, the First Amendment would be in serious trouble. We should demand better from those in the anti-spam community."

EFF has worked with several groups running noncommercial email lists that have signed on to the paper as a way of showing their support for its findings and recommendations. Now that the paper has been released to the public, EFF is calling on more email list owners and ISPs to sign on and change their practices to ensure that while they take steps to protect against spam, they also protect free speech.

Contacts:

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

Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Related Issues:
November 12, 2004

Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a friend-of-the-court brief in a case that could have a profound effect on the privacy of Internet communications.

The brief argues that the decision in US v. Councilman, soon to be reheard by the full First Circuit, should be overturned. A panel of First Circuit judges previously ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their knowledge or consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent to his customers from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this interception did not violate federal law, stating that "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Authored by law professor and online privacy expert Orin Kerr, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), the American Library Association (ALA), the American Civil Liberties Union (ACLU), and the Center for National Security Studies. These groups argue that the earlier Councilman decision disrupts the traditional understanding of Internet surveillance laws and raises significant constitutional questions under the Fourth Amendment.

"The First Circuit's original decision effectively rewrote the field of Internet surveillance law in ways that Congress never intended," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."

The original panel decision has been withdrawn pending the First Circuit's rehearing of the case, which will take place in December.

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Related Issues:
November 10, 2004

Funding for Charities Should Not Be Tied to Screening

Washington, DC - The Electronic Frontier Foundation (EFF) today joined the American Civil Liberties Union (ACLU) and a number of other nonprofit organizations in filing for an injunction from the US District Court in Washington, DC, to stop the federal government from requiring the charities to use blacklists in order to receive payroll donations from federal employees. The groups argue that the new requirement, which was implemented without any notice or public comment period, is not authorized by statute and violates the First and Fifth Amendments.

The Combined Federal Campaign (CFC) enables federal employees to contribute easily to their favorite nonprofit organizations through automatic payroll deductions. In 2003 alone, this program brought over $248 million to thousands of charities. Earlier this year, the government for the first time began requiring all organizations participating in the CFC to certify that they have screened every employee and expenditure against a series of blacklists created by the government on the basis of secret information. Charities that refuse to sign the certification cannot participate in the CFC, even if they meet all other requirements.

"The government can't force charities to become its 'anti-terrorism enforcers' simply because federal employees donate to those charities," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "EFF refuses to violate the privacy of its clients and employees by screening them against secretly compiled blacklists. It was wrong during the McCarthy era, and it's wrong now."

EFF participated in the CFC program for two years prior to the blacklist certification requirement but withdrew from the program earlier this year in protest.
Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

November 8, 2004

Judicial Restraint Urged at High Court

Washington, DC - Peer-to-peer (P2P) software companies StreamCast Networks and Grokster Ltd. today filed a joint brief urging the US Supreme Court to leave undisturbed the landmark MGM v. Grokster ruling handed down by the Ninth Circuit Court of Appeals earlier this year.

The case pits the world's largest music and movie studio companies against StreamCast and Grokster, two small start-up companies responsible for the Morpheus and Grokster P2P file-sharing software products. The entertainment companies have been seeking to hold StreamCast and Grokster liable for copyright infringements committed by the users of their software. In April 2003, a federal district court in Los Angeles rejected that claim, reasoning that the Morpheus and Grokster software products had many noninfringing uses, much like photocopiers and VCRs. That ruling was upheld by a unanimous 3-judge panel of the Ninth Circuit Court of Appeals in August 2004. But in October, the entertainment industry asked the Supreme Court to overturn the lower court rulings.

StreamCast and Grokster filed their brief in response today, emphasizing several reasons the Supreme Court should not take this case. They argue that the Ninth Circuit correctly applied the clear rule set out by the Supreme Court 20 years ago in the Sony v. Universal case (also known as the "Sony Betamax" case) that protects technologies with noninfringing uses. The Ninth Circuit ruling is also consistent with other federal rulings in P2P cases, including the 2003 Aimster ruling, since the Aimster defendants had not shown noninfringing uses. Finally, if copyright laws need to be adjusted in light of new P2P technologies, that is a job best left for Congress, rather than the courts.

The Electronic Frontier Foundation (EFF) and Charles Baker of the Houston law firm Porter &amp Hedges represent StreamCast Networks (Morpheus) in the case, joined by StreamCast's General Counsel, Matthew A. Neco, on the opposition brief, while the San Francisco law firm Keker &amp Van Nest represents Grokster Ltd.

"The Ninth Circuit got it right and applied the Supreme Court's own precedent in the Sony Betamax case," said senior EFF staff attorney, Fred von Lohmann. "There is no reason to revisit the unanimous ruling of the Ninth Circuit and insert judges into the design rooms of technologists across the nation."

The case is Metro-Goldwyn-Mayer v. Grokster, Supreme Court Docket No. 04-480. The Court is expected to decide whether it will take the case before the end of the year.

Contact:

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

Related Issues:
November 4, 2004

EULAs, DMCA Should Not Trump Right to Reverse Engineer

St. Louis, MO - The Electronic Frontier Foundation (EFF) has appealed a District Court decision in St. Louis that held that programmers are not allowed to create free software designed to work with commercial products.

The 8th Circuit Court of Appeals will determine whether three software programmers who created the open source BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA). EFF, co-counsel for the defendants, will argue that programming and distributing BnetD is a fair use and therefore violates neither Blizzard's EULA nor the DMCA's prohibitions.

As it stands, the lower court's decision makes it unlawful in most cases to reverse engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own. EFF considers this situation unacceptable and will use the appeal to explain why EULAs and the DMCA should not be allowed to trump fair use forms of reverse engineering when undertaken to create new products.

"This is a case of critical importance for the software industry," said EFF Staff Attorney Jason Schultz. "Allowing companies like Blizzard to lock out competition and complementary innovation will destroy future generations of products and services. The Internet itself is simply a collection of complementary software programs, and this ruling threatens the existence of all of them."

Fortunately, two recent courts have already recognized that it's unfair to outlaw competition under the DMCA. EFF hopes that the judges in the 8th Circuit will follow in the path of the Lexmark and Skylink cases, which held that the DMCA cannot be used to limit the aftermarket sales of printer cartridges and garage door openers.

Contact:

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

Related Issues:
November 4, 2004

Hollywood Joins Music Industry in Misguided Crusade

Today the Motion Picture Association of America (MPAA) announced that the major Hollywood motion picture studios would be filing hundreds of lawsuits against individuals using peer-to-peer (P2P) file-sharing software to access movies online. In so doing, Hollywood follows in the footsteps of the music industry, which has filed more than 6,000 lawsuits against file sharers since September 2003.

In connection with the music industry lawsuits, the Electronic Frontier Foundation (EFF) has intervened in court to defend the privacy and due process rights of the individuals being sued. It is not yet clear whether the MPAA lawsuits will make similar actions necessary.

The MPAA announcement comes on the heels of a recent study by the University of California, Riverside, and San Diego Supercomputer Center that shows that the music industry lawsuits have had no effect on the popularity of file sharing among US users, estimated at over 20 million.

Hollywood cannot credibly claim that file sharing is jeopardizing their profits. According to TIME Magazine's October 11, 2004, edition: "The studios can't exactly argue that file sharing is about to put them out of business. DVD sales, which grew 33 percent last year, and box-office receipts have never been stronger."

"These lawsuits are misguided," said EFF Staff Attorney Wendy Seltzer, who has been involved in the music industry suits. "The music industry experience shows that the lawsuits don't reduce the amount of file sharing. And it's certainly not good PR to sue movie fans for noncommercial sharing when the studios are rolling in record profits."

"In the end, what protects the studios from piracy is what attracts people to buy or rent movies in the first place -- a good product at a good price point," said EFF Legal Director Cindy Cohn. "As long as you can rent a movie on DVD for $2, movie file sharing is not likely to take a major bite out of studio revenues."

Contacts:

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

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
November 1, 2004

Voters from at least half a dozen states reported that touch-screen voting machines had incorrectly recorded their choices, including for president.

Voters discovered the problems when checking the review screen at the end of the voting process. They found, to their surprise, that the machines indicated that they voted for one candidate when they had voted for another. When voters tried to correct the problem, the machine often made the same error several times. While in most cases the situation was reportedly resolved, many voters remain uneasy about whether the proper vote was ultimately cast. Meanwhile, voting experts are concerned that other voters are experiencing the problem, but failing to notice that the machine is indicating the wrong choice on the "summary" screen.

Election observers with the Electronic Frontier Foundation (EFF) and Verified Voting Foundation (VVF) reported today that the problem, which some voting officials initially attributed to fluke "voter error," is evidently widespread and may even be relatively common with touch-screen machines. Incorrectly recorded votes make up roughly 20 percent of the e-voting problems reported through the Election Incident Reporting System (EIRS), an online database in which volunteers with the Election Protection Coalition, a coalition of non-partisan election observers dedicated to preventing voter disenfranchisement, are recording and tracking voting problems.

For voters, these incidents underscore the need to carefully review ballots during the final portion of the electronic voting process. But they also point to the larger issue: using touch-screen voting systems vulnerable to this kind of error, combined with poll workers and voters unfamiliar with the new systems, substantially increases the chances of voter disenfranchisement.

"We're likely to see these types of problems repeated on Election Day," said EFF Staff Attorney Matt Zimmerman. "As a short-term measure, we strongly encourage voters who use touch-screen voting machines to proof their ballots at the review stage. But while we can try to address obvious, visible problems like these, the problems we really worry about are the ones that the voters and poll watchers can't see. Often the only way you catch these flaws is through audits - yet most of these machines lack even the most basic audit feature: a voter-verified paper trail."

Contacts:

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

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

Related Issues:
October 28, 2004

Legal, Technical Experts Will Report on Problems With E-voting Systems and Answer Questions

The Electronic Frontier Foundation (EFF) and the Verified Voting Foundation (VVF) will host a press tele-conference from 6:00 – 7:00 p.m. EST (3:00 p.m. PST) on November 2 to discuss the performance of e-voting machines on Election Day. Participants will include attorneys and technical experts from both organizations who have been taking calls on the Election Protection Center's 1-866-OUR-VOTE hotline about possible problems in e-voting "hotspots" nationwide. Also included in the press conference will be internationally recognized experts in the fields of computer security and e-voting.

If you would like to attend the conference, email EFF's media coordinator, Annalee Newitz, at annalee@eff.org she will send you details on how to dial in.

In the period leading up to Election Day, and on the day itself, experts from the two organizations will also be available to the media to provide real-time, on-the-ground reports that come in through election incident centers and from voter protection activists observing the polls.

Presenting up-to-the-minute analysis and answering your questions will be:

Ren Bucholz, EFF activism coordinator, in Columbus, OH

Cindy Cohn, EFF legal director, in Washington, DC

David Dill, VVF founder and Stanford computer science professor, in Palo Alto, CA

Will Doherty, VVF executive director, in Washington, DC

Ed Felten, Princeton computer science professor and author of renowned blog Freedom to Tinker, in Princeton, NJ

Joe Hall, EFF e-voting researcher and doctoral candidate at UC Berkeley's School of Information Management and Systems (SIMS), in Berkeley, CA

Bruce Schneier, internationally known computer security expert, author of "Beyond Fear," and founder of Counterpane Internet Security, in Mountain View, CA

Dan Wallach, Rice professor of computer science and co-author of the paper revealing security flaws in Diebold's e-voting machines, in Houston, TX

Matt Zimmerman, EFF e-voting attorney, in Miami, FL

Contact:

Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Related Issues:
October 27, 2004

Public Interest Groups Help Protect Anonymity of Accused Infringers

Pennsylvania - A district court in eastern Pennsylvania has issued an order that will force the Recording Industry Association of America (RIAA) to better respect the privacy and due process rights of people it has accused of copyright infringement. After RIAA members asked the court to issue subpoenas to Internet Service Providers (ISPs) for the names and addresses of people they suspect of infringement, the court issued an order that the ISPs must first send their customers detailed notices about the subpoenas, including information about how the accused suspects can contest the subpoenas.

The controversy arose after the music industry filed a flood of lawsuits against anonymous individuals whom the industry claimed were sharing copyrighted music. Because the industry did not know the identities of the individuals, it served subpoenas to the individuals' ISPs seeking their names. The court held that before the ISPs turn over these names, they must send notices to the individuals advising them of their rights. This allows a targeted individual to make an intelligent decision about what steps to take before his or her identity is disclosed.

The Electronic Frontier Foundation (EFF), Public Citizen, the national American Civil Liberties Union (ACLU), and the ACLU's Pennsylvania affiliate participated in the case as friends of the court. The organizations have been heavily involved in protecting the right to anonymous speech and ensuring that people sued for copyright violations are made aware of their rights.

"The constitutional right of individuals to anonymous speech is just as important on the Internet as it was when the Federalist Papers were published," said Chris Hansen, an attorney for the ACLU. "The court has properly found that before someone's identity is disclosed, that person should at least have a right to be heard and to raise certain defenses."

"Judge Rufe has required the recording industry to meet the same standards of proof that are required when other plaintiffs seek to identify anonymous Internet users," said Public Citizen attorney Paul Levy. "We can only hope that judges throughout the country will follow this example."

EFF legal director Cindy Cohn added, "Receiving notice from your ISP that you are being sued by the record companies is a terrifying experience for the grandmas, students, and working mothers who have been caught up in the RIAA's lawsuit crusade. By requiring ISPs to include basic information such as the right to challenge lawsuits and where to go for help, the court took a big step toward helping people understand their options."

Contacts:

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

Paul Alan Levy
Attorney
Public Citizen Litigation Group
plevy@citizen.org

Paul Silva
Media Relations Associate
American Civil Liberties Union
psilva@aclu.org

Related Issues:
October 26, 2004

Big Win in Printer Cartridge Case Suggests Ways to Limit Use of DMCA

In a huge victory for consumers, the Sixth Circuit Court ruled today that printer manufacturer Lexmark cannot use the controversial Digital Millennium Copyright Act (DMCA) to stop its competitors from creating and selling cartridges that interoperate with its printers. The decision lifts an injunction imposed by a lower court on the sale of Static Control Components (SCC) chips that allow any printer cartridge to work with Lexmark printers. Now, any company that wishes to compete with Lexmark in after-market cartridge sales can do so by using SCC chips in its products.

In the ruling, the judges state firmly, "We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[.]"

The case, Lexmark v. Static Control Components, demonstrates one of the absurdities of the anti-circumvention clause of the DMCA. Congress intended the DMCA to thwart mass copyright infringement on the Internet, but some companies have been invoking the law to gain control over after-market competition. In this instance, Lexmark programmed its printers to require a digital "handshake" with cartridges, so that only authorized (read Lexmark) cartridges could be used. When SCC started selling chips that allowed other companies to refill used cartridges and make them interoperable with Lexmark printers, Lexmark claimed they were engaging in unlawful reverse engineering and sued under the DMCA.

EFF filed a friend-of-the-court brief in the case, arguing that SCC should be able to examine its competitor's technology in order to manufacture printer toner cartridges compatible with Lexmark printers without facing a copyright lawsuit.

"Reverse engineering drives competition and innovation in the technology sector," said EFF Staff Attorney Wendy Seltzer. "We're happy the court recognized it as an important practice that shouldn't be regulated by the DMCA."

This decision suggests that courts are losing patience with frivolous reverse-engineering suits filed under the DCMA that seem designed to crush competition rather than protect copyright. In a similar case, Chamberlain v. Skylink, a federal appeals court in Washington, DC, upheld a lower court ruling that allowed the marketing of "universal" remote controls for garage door openers.

Contacts:

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

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
October 26, 2004

San Francisco - The Electronic Frontier Foundation today launched a campaign to inform California voters of their right to vote on a paper ballot in the upcoming election. The website and animation for Paper or Plastic 2004 are available at:

http://PaperOrPlastic2004.org

Ten California counties – including Orange, Alameda, and Riverside - will use electronic voting machines on November 2nd, but these systems don't provide a voter-verified audit trail and they cannot be used in a meaningful recount. That's why Secretary of State Kevin Shelley ordered each of these counties to give voters a choice: on election day, voters can choose to forego an electronic ballot and instead vote on paper. However, election officials in at least three counties are instructing poll workers to keep this "paper or plastic" choice secret.

"Thousands of Californians fought for the option to cast ballots that can be verified, audited, and recounted, but these officials are trying to keep the public in the dark," said EFF Staff Attorney Matt Zimmerman. "Election officials in Alameda, Orange, and Santa Clara Counties are violating the spirit of Secretary Shelley's order by instructing poll workers to not tell voters about their rights or failing to instruct poll workers about the paper ballot option at all."

These instructions have been given to poll workers in Orange, Alameda, and Riverside Counties. Napa, San Bernardino, Merced, Plumas, Shasta, Tehama, and Riverside Counties also use e-voting machines, but it is not clear whether their poll workers have been given similar instructions. The animation and website will also be released in Spanish, Chinese, and Tagalog later this week.

Paper or Plastic 2004:
http://www.PaperOrPlastic2004.org

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
+1 415 436-9333 x127

Related Issues:
October 25, 2004

EFF, Verified Voting Lead Teams of Experts, Hold Press Conference on Election Day

Nationwide - The Electronic Frontier Foundation (EFF) has been asked by the nationwide non-partisan Election Protection Coalition (EPC) to lead a team of technology lawyers who can serve as experts on Nov. 2 if troubles come up in e-voting "hotspots" around the country. Stationed in cities across the nation, these experts will be available to answer questions when people call the Election Protection Hotline at 1-866-OUR-VOTE with issues related to e-voting.

Also on Nov. 2, more than 1,300 technologist volunteers with the Verified Voting Foundation (VVF) TechWatch program will work with Election Protection hotline volunteers to chronicle and respond rapidly to election problems, providing detailed, accurate information for follow-on litigation and policymaking. Their activities will include poll watching, responding in cooperation with field attorneys, and recording any problems they find in the Election Incident Reporting System.

The two organizations will host a press tele-conference at 6:00 PM EST (3:00 PM PST) on Nov. 2 to discuss the performance of e-voting machines on Election Day. If you would like to attend the conference, email EFF's media coordinator, Annalee Newitz, at annalee@eff.org and she will send you details on how to dial in within a few days.

In the week leading up to Election Day, and on the day itself, experts from the two organizations will be available to the media to provide real-time, on-the-ground reports that come in through election incident centers and from voter protection activists observing the polls.

Electronic Frontier Foundation Contacts:

Cindy Cohn
Legal Director
cindy@eff.org
office: 415.436.9333 x108 / cell: 415-307-2148
[in Washington, DC, Oct. 31-Nov. 4]

Matt Zimmerman
Staff Attorney
mattz@eff.org
office: 415.436.9333 x127 / cell: 415.948.5600
[in Miami, Florida, Oct. 31-Nov. 4]

Ren Bucholz
Activism Coordinator
ren@eff.org
office: 415.436.9333 x121 / cell: 415.254.9945
[in Columbus, Ohio, Oct. 31-Nov. 4]

Verified Voting Foundation Contacts:

Will Doherty
Executive Director
press@verifiedvoting.org
office: 415.695.0543 / cell: 415.425.3936
[in Washington, DC, Oct 31 – Nov 3]

Pamela Smith
Nationwide Coordinator
pam@verifiedvoting.org
cell: 760.613.0172
[in New York City, Nov. 1-3]

Related Issues:
October 25, 2004

Motion Demands Information About the Seizure of Indymedia's Servers


Texas - Electronic Frontier Foundation (EFF) attorneys have filed a motion to unseal a secret US federal court order that led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists. The motion seeks to discover which agencies and governments are responsible for the seizure in order to hold them accountable. In their motion, EFF attorneys argue that "the public and the press have a clear and compelling interest in discovering under what authority the government was able unilaterally to prevent Internet publishers from exercising their First Amendment rights." They argue further that secret court orders circumvent due process, undermine confidence in the judicial system, and deny an avenue for redress.

"When a secret order results in the unconstitutional silencing of media, the public has a right to know what happened," said Kurt Opsahl, EFF Staff Attorney. "Freedom of the press is an essential part of the First Amendment, and our government must show it had a compelling state interest to order such an extreme intrusion to the rights of the publisher and the public."

Citing a gag order, Rackspace has not revealed the contents of the seizure order, the requesting agency, or even confirmed the identity of the court that issued it. Apparently requested by an unidentified foreign government, the secret order was served to San Antonio-based Rackspace Managed Hosting, which hosts IndyMedia's servers. The seizure took offline more than 20 IMC websites and more than 10 streaming radio feeds. So far, government agencies in the US, including the Federal Bureau of Investigation, the Departments of State and Justice, and the US Attorney's Office in San Antonio, have refused to take responsibility for the incident. Prosecutors in Switzerland and Italy have admitted pursuing investigations related to Indymedia articles but denied requesting the seizure.

"Silencing Indymedia with a secret order is no different than censoring any other news website, whether it's USA Today or your local paper," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "If the government is allowed to ignore the Constitution in this case, then every news publisher should be wondering, 'Will I be silenced next?'"

EFF's motion to unseal was filed in the federal court in the Western District of Texas, where EFF believes the secret court order originated.

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

Related Issues:
October 22, 2004

San Francisco - The Electronic Frontier Foundation is redistributing a press release from Verified Voting Foundation announcing the release of several key resources for voters in e-voting "hotspots."

Voters Guides include step-by-step instructions for voting on the most commonly used electronic voting machines. There are also maps detailing what voting equipment is being used at polling places nationwide.

The Election Incident Reporting System (EIRS) allows voters, media, and others to keep abreast of election incidents nationwide that are being reported to the nonpartisan Election Protection network hotline at 1-866-OUR VOTE.

EFF is working with Verified Voting to lead a team of technology attorneys who will be available to respond to problems with electronic voting machines nationwide as part of the National Election Protection Coalition.

Here is the press release:

Verified Voting Foundation Media Advisory

For Immediate Release: Friday, October 22, 2004

Contact:

Will Doherty
Executive Director
Verified Voting Foundation
press@verifiedvoting.org
+1 415 695-0543 (office), +1 415 425-3936 (cell)

Pamela Smith
Nationwide Coordinator
Verified Voting Foundation
pam@verifiedvoting.org
+1 760-613-0172 (cell)

Election Resources for Voters Concerned About E-voting Problems

Verified Voting Foundation Publishes Technology Maps, Guides

San Francisco - Gearing up for early voting and Election Day, the Verified Voting Foundation (VVF) today published guides to assist voters in casting votes successfully when they face new voting technologies at the polls.

Available in print and online versions, VVF's "Voters' Guide to Electronic Voting" provides voters with easy-to-read information about the voting machines used in their local polling places and pointers about how to prevent voting technology problems and vote successfully.

"We've pulled together in one convenient place a bunch of information that was theoretically available to voters, but really hard to come by," said VVF Executive Director Will Doherty.

"We're doing what we can to let the public know about the problems with and alternatives to paperless e-voting," commented VVF Nationwide Coordinator Pamela Smith.

Voters and voter protection organizations may request free printed copies of the "Voters' Guide."

The Electronic Frontier Foundation, Global Exchange Fair Election Project, and America's Families United Voter Protection Project assisted in preparing profiles of the most commonly used e-voting machines.

A companion volume to the "Voters' Guide," called the "Poll Monitors' &amp Poll Workers' Guide to Electronic Voting," will provide more detailed information specifically for poll monitors, poll workers, election officials, and other interested persons who are assisting voters.

VVF also has prepared the Verifier, a web-based tool that provides drill-down maps permitting voters to find the voting technology used where they vote, as well as contact information for election officials, absentee, and early voting availability, and much more. Some of this information, previously only available commercially, came courtesy of Electionline.org, while the rest resulted from the efforts of dozens of volunteers. VVF welcomes input on missing and incorrect information and will soon offer a free download capability for all the public data contained in the maps.

All these resources complement the Election Incident Reporting System (EIRS), a web-based incident tracking tool prepared by VVF and the Computer Professionals for Social Responsibility (CPSR). Members of organizations in the 60+-member Election Protection Coalition are entering calls received by the toll-free Election Protection Hotline at 1-866-OUR-VOTE (1 866-687-8683). Trained attorneys and technologists respond rapidly to resolve incident reports and make sure voters can vote and have their votes counted as intended.

Voters' Guide to Electronic Voting

Poll Monitors' &amp Poll Workers' Guide to Electronic Voting (coming soon)

Voting Technology Map

Election Officials Contact Information Map

Election Incident Reporting System Incident Map

Election Incident Reporting System Overview

TechWatch technologists provide tech support for voter protection

Electronic Frontier Foundation E-voting Activism page

Global Exchange Fair Election Project

America's Families United Voter Protection Program

Election Protection Coalition member organizations

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October 18, 2004

Santa Clara County, CA - Pollworkers in Santa Clara County are being trained not to offer voters a chance to use paper ballots instead of electronic voting machines, the Electronic Frontier Foundation (EFF) has learned. California Secretary of State Kevin Shelley mandated in May that all polling places offer a paper ballot option, which would allow people concerned about e-voting machine reliability a chance to vote on paper ballots at the polls. But pollworkers in Santa Clara County are being instructed not to tell voters that this option is available. Instead, they will make paper ballots available only if voters specifically request them.

Ed Cherlin, a pollworker being trained in Santa Clara County, said he was very disturbed to learn that he was not supposed to mention the paper option. "I object to the government telling me that I can't tell people about their rights," he said. Representatives of the voting commissions in Orange County and Riverside confirm that they also will not be informing voters about the paper option at the polls. There are ten counties in California using paperless e-voting machines known as DREs. It is not clear at this time whether all ten are adopting similar policies.

"When poll workers don't inform people about their options at the voting booth, they go against the spirit of the Secretary of State's mandate," said EFF Staff Attorney Matt Zimmerman. "More importantly, they undermine people's trust in the voting process."

Contact:

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

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October 15, 2004

False Accusation of Infringement Results in Hefty Payment of Legal Fees, Damages

California - The Electronic Frontier Foundation (EFF) capped its historic victory in a copyright abuse case against electronic voting machine manufacturer Diebold today. The corporation agreed to pay $125,000 in damages and fees. The settlement, a win for free speech advocates, comes after a California district court found that Diebold had knowingly misrepresented that online commentators, including Indymedia and two Swarthmore college students, had infringed the company's copyrights.

"It makes me happy that students in this situation in the future won't have to worry about big corporations breathing down their necks," said Nelson Pavlosky, one of the students.

Diebold is the first company to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occurred. The section also stipulates that anyone who issues such frivolous threats must pay damages, including costs and attorneys' fees, to those harmed by the misrepresentations.

EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold's abusive copyright claims from silencing public debate about voting. Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold's e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. OPG refused to remove them in the name of free speech.

"The risk of substantial damages and fees should make companies pause before sending unfounded copyright threats," said EFF Staff Attorney Wendy Seltzer. "Plus ISPs can fight back against these false claims without taking a financial hit." "As a nonprofit ISP it's great to have legal recourse when a company threatens us or our clients with frivolous lawsuits," added OPG Executive Director Will Doherty.

EFF is a member-supported nonprofit which represented OPG and the Swarthmore students pro bono. Thanks to the settlement, Diebold will pay the costs of the case.

Contacts:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Jennifer Granick
Clinical Director
Stanford Law School Center for Internet and Society
jennifer@granick.com

Related Issues:
October 13, 2004

San Francisco, CA - Rackspace Managed Hosting, the San Antonio-based company that manages two Indymedia servers seized by the US government last Thursday, said yesterday that the servers have been returned and are now available to go back online. Immediate access to the servers, which host Indymedia's Internet radio station and more than 20 Indymedia websites, will be delayed so that the Electronic Frontier Foundation (EFF) can ensure that the servers are secure and take steps to preserve evidence for future legal action.

Now that the servers have been returned, the question still remains: who took them, and under what authority? Citing a gag order, Rackspace would not comment on what had happened both in the original seizure of the servers or their return. All that is known at this point is that the subpoena that resulted in the seizure was issued at the request of a foreign government, most likely with the assistance of the United States Attorney's Office in San Antonio. Although initial reports suggested that the FBI had taken the servers, the FBI has now denied any involvement.

The seizure, which silenced numerous political news websites for several days, is clearly a violation of the First Amendment. "Secret orders silencing US media should be beyond the realm of possibility in a country that believes in freedom of speech," said EFF staff attorney Kurt Opsahl. "EFF was founded with the Steve Jackson Games case fourteen years ago, and at that time we established that seizing entire servers because of a claim about some pieces of information on them is blatantly illegal and improper. It appears the government forgot this basic rule, and we will need to remind them."

EFF will take legal action to find out what really happened to Indymedia's servers and ensure that Internet media are protected from egregious First Amendment violations like this in the future.

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

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