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December 9, 2005

Online Rights Canada Launches with EFF, CIPPIC Support

Toronto - Online Rights Canada (ORC) launched in Canada Friday, giving Canadians a new voice in critical technology and information policy issues. The grassroots organization is jointly supported by the Canadian Internet Policy &amp Public Interest Clinic (CIPPIC) and the Electronic Frontier Foundation (EFF).

"Canadians are realizing in ever-greater numbers that the online world offers tremendous opportunities for learning, communicating, and innovating, but that those opportunities are at risk as a result of corporate practices, government policies and legal regimes that hinder online privacy and free speech," said Philippa Lawson, Executive Director and General Counsel of CIPPIC. "Online Rights Canada provides a home on the Internet for grassroots activism on digital issues that are important to ordinary Canadians."

"With the Canadian government preparing for a January election, all of last year's legislation is back on the drawing board. Canadians now have another chance to present a public interest perspective on issues like copyright reform and increased government surveillance," said Ren Bucholz, EFF's Policy Coordinator, Americas. "We are happy to be launching ORC at such a critical time."

One of ORC's first actions is a petition drive against unwarranted surveillance law. A bill proposed in Parliament last month would have allowed law enforcement agencies to obtain personal information without a warrant and forced communications providers to build surveillance backdoors into the hardware that routes phone calls and Internet traffic. The petition asks Canadian lawmakers to protect citizens' privacy rights when the new government convenes in 2006. Other important issues for ORC will include copyright law, access to information, and freedom from censorship.

"Today, ORC focuses on digital copyright and lawful access. But there is no reason to restrict the site to those two issues," said CIPPIC Staff Counsel David Fewer. "Our hope is that ORC will evolve into the first place to go for Canadians looking for opportunities to protect their online rights. Anyone can be an activist - Online Rights Canada will give you the tools you need."

Online Rights Canada is the latest group to join the global fight for digital rights. Digital Rights Ireland launched earlier this week, and the Open Rights Group launched in the United Kingdom last month.

For Online Rights Canada:
http://www.onlinerights.ca

Contacts:

Ren Bucholz
Policy Coordinator, Americas
Electronic Frontier Foundation
ren@eff.org

Philippa Lawson
Executive Director
Canadian Internet Policy and Public Interest Clinic
plawson@uottawa.ca

Related Issues:
December 8, 2005

EFF Asks Court to Void Approval of Diebold and Others Without Source Code Review

Raleigh, North Carolina - The Electronic Frontier Foundation (EFF) on Thursday filed a complaint against the North Carolina Board of Elections and the North Carolina Office of Information Technology Services on behalf of voting integrity advocate Joyce McCloy, asking that the Superior Court void the recent illegal certification of three electronic voting systems.

North Carolina law requires the Board of Elections to rigorously review all voting system code "prior to certification." Ignoring this requirement, the Board of Elections on December 1st certified voting systems offered by Diebold Election Systems, Sequoia Voting Systems, and Election Systems and Software without having first obtained – let alone reviewed – the system code.

"This is about the rule of law," said EFF Staff Attorney Matt Zimmerman. "The Board of Elections has simply ignored its mandatory obligations under North Carolina election law. This statute was enacted to require election officials to investigate the quality and security of voting systems before approval, and only approve those that are safe and secure. By certifying without a full review of all relevant code, the Board of Elections has now opened the door for North Carolina counties to purchase untested and potentially insecure voting equipment."

North Carolina experienced one of the most serious malfunctions of e-voting systems in the 2004 presidential election when over 4,500 ballots were lost in a voting system provided by e-voting vendor UniLect Corp. Electronic voting systems across the country have come under fire during the past several years as unexplained malfunctions combined with efforts by vendors to protect their proprietary systems from meaningful review have left voters with serious questions about the integrity of the voting process.

"North Carolina voters deserve to have their election laws enforced," said co-counsel Don Beskind of the Raleigh law firm of Twiggs, Beskind, Strickland &amp Rabenau, P.A. "Election transparency is a requirement, not an option. The General Assembly passed this law unanimously, and it is now time for the Board of Elections to meet their obligations."

On behalf of McCloy, EFF and Beskind intervened in – and convinced a judge to dismiss – a separate lawsuit filed last month by Diebold, which sought to be exempted from the state's transparency laws. Diebold represented to the court that it would be "unable" to comply with the code escrow requirement of the statute. Inexplicably, the Board of Elections certified Diebold despite its admitted inability to comply with the law.

A hearing in McCloy's case against the Board of Elections is set for Wednesday, December 14. EFF and Beskind have asked the Court for a temporary restraining order preventing North Carolina's 100 counties from purchasing any of the recently certified systems unless and until the Board of Elections complies with its statutory obligations.

For the full complaint:
http://www.eff.org/Activism/E-voting/EFF_Mandamus_Complaint_TRO_20051208140945.pdf

Contact:

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

Related Issues:
December 7, 2005

EFF Urges New York Judge to Reject Latest Surveillance Request

New York - The Electronic Frontier Foundation (EFF) has asked a federal magistrate judge in New York City to reject a Department of Justice (DOJ) request to track a cell phone user without first showing probable cause of a crime. In a brief filed in New York on Tuesday, EFF and the Federal Defenders of New York argue that no law authorizes the government's request, and that granting the order would threaten Americans' Fourth Amendment right against unreasonable searches.

This latest briefing comes after a decision last week in Maryland denying a similar order, which combined with two recent denials published by federal courts in New York and Texas, represents an unprecedented judicial rebuke to the DOJ's surveillance practices. The DOJ's apparently routine practice of asking for and receiving cell-tracking orders without probable cause only recently came to light as a result of these newly published decisions typically, such requests are made and granted in secret, without any public accounting.

"Even though three federal courts have now completely rejected the Justice Department's arguments for tracking a cell phone without probable cause, it is still asking other judges for these plainly illegal surveillance orders," said Kevin Bankston, EFF Staff Attorney. "How many public denials is it going to take before the Justice Department either stops seeking such orders altogether, or is willing to appeal one of these decisions and subject its baseless arguments to scrutiny by higher courts?"

The DOJ, despite claims that its cell phone tracking requests are routine, necessary, and perfectly legal, has so far chosen not to appeal any of the recent decisions.

For this brief:
http://eff.org/legal/cases/USA_v_PenRegister/EFF_FDNY_reply_brief.pdf

For more on cell phone tracking:
http://www.eff.org/legal/cases/USA_v_PenRegister/

Contact:

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

December 6, 2005

Click here for more on the issues with the software patch.

SunnComm Makes Security Update Available To Address Recently Discovered Vulnerability On Its MediaMax Version 5 Content Protection Software, Which Is Included On Certain SONY BMG CDs

San Francisco, CA and New York, NY - The Electronic Frontier Foundation (EFF) and SONY BMG Music Entertainment (SONY BMG) said today that SunnComm is making available a software update to address a security vulnerability with its MediaMax Version 5 content protection software on certain SONY BMG compact discs (CDs). The vulnerability was discovered by the security firm iSEC Partners after EFF requested an examination of the SunnComm software.

"We're pleased that SONY BMG responded quickly and responsibly when we drew their attention to this security problem," said EFF staff attorney Kurt Opsahl. "Consumers should take immediate steps to protect their computers."

"We're grateful to EFF and iSEC for bringing this to our attention," said Thomas Hesse, president, Global Digital Business, SONY BMG. "We believe that the availability of the update coupled with our campaign to notify customers will appropriately address the CDs with MediaMax Version 5 in the market."

SunnComm as well as independent software security firm NGS Software have determined that the security vulnerability is fully addressed by the update. NGS Director Robert Horton said, "After carefully researching the security vulnerability presented to us by SONY BMG, we have determined that it is not uncommon and, importantly, it is easily fixed by applying a software update."

The security vulnerability on SunnComm MediaMax Version 5 software differs from that reported in early November on First4Internet XCP software contained on certain SONY BMG CDs. A full list of the 27 U.S. SunnComm MediaMax Version 5 titles is included in the link below. Consumers can download the software update that is designed to address this security vulnerability from SunnComm's and Sony BMG's websites at http://www.sunncomm.com/support/updates/update.asp and http://www.sonybmg.com/mediamax.

The security issue involves a file folder installed on users' computers by the MediaMax software that could allow malicious third parties who have localized, lower-privilege access to gain control over a consumer's computer running the Windows operating system.

SONY BMG will notify consumers about this vulnerability and the update through the banner functionality included on the player, as well as through an Internet-based advertising campaign. The update is also being provided to major software and Internet security companies. EFF and SONY BMG urge all consumers who receive notice to download and install the patch immediately. In accordance with standard information security practices, EFF and iSEC delayed public disclosure of the details of the exploit to provide SunnComm the opportunity to develop an update.

Full list of titles affected:
http://www.sonybmg.com/mediamax/titles.html

Links to patch:
http://www.sunncomm.com/support/updates/update.asp
http://www.sonybmg.com/mediamax

iSEC Partners Report on the Vulnerability:
http://www.eff.org/IP/DRM/Sony-BMG/MediaMaxVulnerabilityReport.pdf

iSEC Partners:
http://www.isecpartners.com

NGS:
http://www.ngssoftware.com

Contacts:

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

Cory Shields
Sony BMG
212-833-4647

John McKay
Sony BMG
212-833-5520

Related Issues:
December 2, 2005

Board of Elections Ignores Rules to Escrow Code, Identify Programmers

Raleigh, North Carolina - The North Carolina Board of Elections certified Diebold Election Systems to sell electronic voting equipment in the state yesterday, despite Diebold's repeated admission that it could not comply with North Carolina's tough election law. The Electronic Frontier Foundation (EFF) believes that this raises important questions about the Board of Elections' procedures as well as the integrity of Diebold's bid for certification.

In all, three companies were certified for e-voting in North Carolina: Diebold, Sequoia Voting Systems, and Election Systems &amp Software. However, Keith Long, an advisor to the Board of Elections who was formerly employed by both Diebold and Sequoia, has said that "none of them" could meet the statutory requirement to place their system code in escrow. Instead of rejecting all applications and issuing a new call for bids as required by law, the Board chose to approve all of the applicants.

"The Board of Elections has simply flouted the law," said EFF Staff Attorney Matt Zimmerman. "In August, the state passed tough new rules designed to ensure transparency in the election process, and the Board simply decided to take it upon itself to overrule the legislature. The Board's job is to protect voters, not corporations who want to obtain multi-million dollar contracts with the state."

Last month, Diebold obtained a broad temporary restraining order that allowed it to evade key transparency requirements without criminal or civil liability. The law requires escrow of the source code for all voting systems to be certified in the state and identification of programmers. Diebold claimed that it could not comply because of its reliance on third-party software.

Monday, responding to EFF's arguments, a judge dismissed Diebold's request for broad exemptions to the law and told Diebold that if it wanted to continue in its certification bid, it must follow the law or face liability. Diebold had told the court that it would likely withdraw from the bidding process if it was not granted liability protection. But instead, Diebold went forward with the certification bid.

Diebold's certification now means it is permitted to sell e-voting equipment in North Carolina. But Zimmerman says that any county that buys from Diebold is taking a risk.

"If Diebold's certification is revoked, counties using their equipment could be left holding a very expensive bag," Zimmerman said.

Despite Long's assertion, at least one Diebold competitor -- Nebraska-based Election Systems &amp Software -- has publicly stated that it is capable of meeting the escrow requirement for the code used it its system.

For more on the judge's decision Monday:
http://www.eff.org/news/archives/2005_11.php#004203

Contact:

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

Related Issues:
December 1, 2005

EFF Bows Out of Broken Process

EFF Bows Out of Broken Process

San Francisco - The Electronic Frontier Foundation (EFF) today released a report entitled "DMCA Triennial Rulemaking: Failing the Digital Consumer," describing why the third triennial DMCA rulemaking, currently underway before the U.S. Copyright Office, does not effectively address the concerns of American digital media consumers. In light of the shortcomings of the DMCA rulemaking procedure, EFF will not propose any DMCA exemptions for the 2006-2009 triennial rulemaking period.

Digital media consumers are finding themselves increasingly hemmed in by "digital rights management" (DRM) restrictions on digital music, movies, video games, and software. The Digital Millennium Copyright Act of 1998 (DMCA) generally prohibits consumers from circumventing DRM mechanisms that control access to DVDs, CDs, and other digital media products. In an effort to ensure that these DRM mechanisms would not impede lawful uses of copyrighted works, however, Congress included what it described as a "fail-safe" mechanism in the DMCA rulemaking proceeding to be held every three years by the Copyright Office. The law delegates to the Copyright Office and Librarian of Congress the power to grant three-year exemptions to the DMCA's prohibition on circumventing DRM restrictions where the restrictions would otherwise encroach on lawful uses of copyrighted works.

Today is the last day to submit proposals for DMCA exemptions to the Copyright Office as part of the latest triennial rulemaking. EFF has participated in each of the two prior rulemakings in 2000 and 2003, each time asking the Copyright Office to create exemptions for perfectly lawful consumer uses for digital media that are encumbered by DRM. The Copyright Office has rejected all of EFF's previous proposals.

Based on its prior experience with the rulemaking procedure, as well as the increasing pervasiveness of DRM restrictions on digital media products, EFF has concluded that the triennial rulemaking does not effectively address the concerns of digital media consumers. Instead, EFF's report calls on Congress to take legislative action to reform and repair the DMCA rulemaking process.

"When the Copyright Office is unwilling to grant a DMCA exemption that would allow consumers to play copy-protected CDs on their computers, you know the rulemaking process is failing digital media consumers," said Fred von Lohmann, Senior Staff Attorney with EFF. "In the wake of the Sony BMG DRM debacle, it's time for Congress get involved on behalf of American consumers."

"DMCA Triennial Rulemaking: Failing Consumers Completely":
http://www.eff.org/IP/DMCA/copyrightoffice/DMCA_rulemaking_broken.pdf

For more on why EFF won't participate:
http://www.eff.org/deeplinks/archives/004212.php

For more on DMCA rulemaking:
http://www.eff.org/IP/DMCA/copyrightoffice/

Contact:

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

Related Issues:
November 30, 2005

EFF Fights Heavy-Handed Tactics From Satellite TV Giant

San Francisco - The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford University Law School filed an amicus brief in the Ninth Circuit Court of Appeals Wednesday, asking judges to protect legitimate researchers from the heavy-handed tactics of the DirecTV Group, Inc., a worldwide provider of digital television entertainment, broadband satellite networks and services, and global video and data broadcasting.

Federal law makes it illegal to intercept satellite TV signals without authorization and also bans modifying or assembling interception tools for sale or distribution. In the case before the Ninth Circuit, DirecTV claims that it can sue individuals for both interception of its signal as well as modification of receiving equipment in cases where altered smart cards are simply inserted into standard television equipment. DirecTV claims that inserting a smart card into preexisting television equipment constitutes "assembling" a pirate device. The amicus brief claims that DirecTV is overreaching and also points out that legitimate security researchers would be threatened under the proposed misreading of the law. A lower court has already ruled that DirecTV cannot sue on this theory and dismissed DirecTV's attempt to "double-dip" by punishing individuals twice for a single offense.

"Researchers are constantly assembling, modifying, and building smart card components in furtherance of scientific knowledge and innovation," said EFF Staff Attorney Jason Schultz. "Congress clearly meant to exclude these beneficial activities from any legal liability. The court below understood this, and we hope the Appeals Court agrees."

Over the past few years, DirecTV has orchestrated a nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal. The company began its crusade by raiding smart card device distributors to obtain their customer lists, then sent over 170,000 demand letters to customers and eventually filed more than 24,000 federal lawsuits against them. Because DirecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF and the Cyberlaw Clinic received hundreds of calls and emails from panicked device purchasers. We worked with DirecTV to get them to limit their lawsuits to only those people they could prove were illegally receiving their signal. The two groups co-sponsor a website at http://www.directvdefense.org to help people defend themselves.

For the full brief filed in the case:
http://directvdefense.org/files/hunyh_amicus_brief_final.pdf

Contacts:

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

Jennifer Granick
Executive Director
Stanford Law School Center for Internet and Society Cyber Law Clinic
jennifer@law.stanford.edu

Related Issues:
November 28, 2005

E-Voting Company Forced to Comply with Election Transparency Laws

Raleigh, North Carolina - Responding to arguments made by the Electronic Frontier Foundation (EFF), a North Carolina judge today told Diebold Election Systems that the e-voting company must comply with tough North Carolina election law and dismissed the company's case seeking broad exemptions from the law.

EFF intervened in the case earlier this month, after Diebold obtained a broad temporary restraining order that allowed it to evade key transparency requirements without criminal or civil liability. The law requires escrow of the source code for all voting systems to be certified in the state and identification of programmers. In today's hearing, the judge told Diebold if it wanted to continue in the bidding process for certified election systems in the state, it must follow the law and if it failed to do so, it would face liability.

"The North Carolina legislature showed great leadership and courage in passing one of the most robust voting machine transparency laws in the country," said EFF Staff Attorney Matt Zimmerman. "The court decision reiterates what EFF had been arguing on behalf of our client all along: Diebold is not entitled to special rules."

EFF intervened in the case on behalf of North Carolina voter and election integrity advocate Joyce McCloy, with assistance from Don Beskind and the North Carolina law firm of Twiggs, Beskind, Strickland &amp Rabenau, P.A. EFF argued that Diebold had failed to show why it was unable to meet election law provisions requiring source code escrow and identification of programmers, and asked the court to force Diebold and every other North Carolina equipment vendor to comply.

Diebold could appeal the ruling, go forward with its bid, or withdraw from the process. However, Diebold told the court that it would likely withdraw the bid if the company did not have liability protection.

North Carolina experienced one of the most serious malfunctions of e-voting systems in the 2004 presidential election when over 4,500 ballots were lost in a voting system provided by Diebold competitor UniLect Corp. The new transparency and integrity provisions of the North Carolina election law were passed in response to this and other documented malfunctions that have occurred across the country.

The North Carolina Board of Elections is scheduled to announce winning voting equipment vendors on December 1, 2005.

For the brief filed in the case:
http://www.eff.org/Activism/E-voting/20051117_Diebold_v_NC_Motion.pdf

Contacts:

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

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

Related Issues:
November 23, 2005

EFF and Others Petition to Stop 18 Month Countdown to Internet Backdoors

The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology, and representatives of industry, academia, librarians and others today filed a joint request for a stay with the Federal Communications Commission (FCC), arguing that the Commission has been "unreasonable, arbitrary and capricious" in demanding that broadband Internet access providers and interconnected Voice over Internet Protocol (VoIP) providers include backdoors for wiretaps in their services. The stay requested that the Commission should either postpone its Spring 2007 "full compliance" deadline for implementing these taps, or halt the requirement entirely.

EFF, CDT, and other groups have already petitioned the D.C. Circuit Court of Appeals to overrule the FCC's September 23rd ruling extending the 1994 Communications Assistance for Law Enforcement Act (CALEA) to cover broadband Internet access and Voice-over-IP (VoIP) service providers. Under the ruling, companies like Vonage and private institutions that provide Net access, such as universities, have 18 months to redesign their networks to be wiretap-friendly, but neither the ruling nor the FCC have been willing to specify what is required.

"The FCC has distorted an already dubious law designed for telephone services in order to reach Internet providers and private networks," said EFF Senior Staff Attorney Lee Tien. "They have plainly overreached their authority in requiring internet providers to design systems that make surveillance of the public easier and we are confident that the courts will agree. But in the meantime the FCC deadline has not been moved and no one knows what CALEA compliance means on the Internet. The Commission refused to say, the FBI has been playing coy, and the rest of us just don't know. The result is a nonsensical deadline that forces companies to begin compliance without knowing what is required of them, or whether CALEA even applies to them, all happening in the shadow of a strong claim that the FCC does not even have authority to do this at all. The FCC needs to call a timeout until it knows what it wants, and seriously reconsider whether it has the authority to demand it."

CALEA, the controversial law passed in the early 1990s that provides the FCC with powers to mandate backdoors into traditional, centralized telephony systems, expressly exempted information services such as the Internet. At the time of its drafting, Congress was convinced by EFF and other privacy groups that such backdoors would endanger privacy and security, strangle innovation, and be technologically burdensome to implement within the Internet's decentralized architecture. The September FCC ruling claims, contrary to this plain intent, that CALEA now applies to broadband ISPs and Internet telephony.

Parties supporting the petition include the American Library Association, Association for Community Networking, the Association of College and Research Libraries, Champaign Urbana Community Wireless Network, Electronic Privacy Information Center, Pulver.com, Sun Microsystems and the Texas ISP Association.

Copy of the Stay Request:
http://www.eff.org/Privacy/Surveillance/CALEA/calea_order_stay_request.pdf

November 21, 2005

Company Should Repair Damage to Customers Caused by CD Software

The Electronic Frontier Foundation (EFF), along with two leading national class action law firms, today filed a lawsuit against Sony BMG, demanding that the company repair the damage done by the First4Internet XCP and SunnComm MediaMax software it included on over 24 million music CDs.

EFF is pleased that Sony BMG has taken steps in acknowledging the security risks caused by the XCP CDs, including a recall of the infected discs. However, these measures still fall short of what the company needs to do to fix the problems caused to customers by XCP, and Sony BMG has failed entirely to respond to concerns about MediaMax, which affects over 20 million CDs -- ten times the number of CDs as the XCP software.

"Sony BMG is to be commended for its acknowledgment of the serious security problems caused by its XCP software, but it needs to go further to regain the public's trust," said Corynne McSherry, EFF Staff Attorney. "It is unconscionable for Sony BMG to refuse to respond to the privacy and other problems created by the over 20 million CDs containing the SunnComm software."

The suit, to be filed in Los Angeles County Superior court, alleges that the XCP and SunnComm technologies have been installed on the computers of millions of unsuspecting music customers when they used their CDs on machines running the Windows operating system. Researchers have shown that the XCP technology was designed to have many of the qualities of a "rootkit." It was written with the intent of concealing its presence and operation from the owner of the computer, and once installed, it degrades the performance of the machine, opens new security vulnerabilities, and installs updates through an Internet connection to Sony BMG's servers. The nature of a rootkit makes it extremely difficult to remove, often leaving reformatting the computer's hard drive as the only solution. When Sony BMG offered a program to uninstall the dangerous XCP software, researchers found that the installer itself opened even more security vulnerabilities in users' machines. Sony BMG has still refused to use its marketing prowess to widely publicize its recall program to reach the over 2 million XCP-infected customers, has failed to compensate users whose computers were affected and has not eliminated the outrageous terms found in its End User Licensing Agreement (EULA).

The MediaMax software installed on over 20 million CDs has different, but similarly troubling problems. It installs files on the users' computers even if they click "no" on the EULA, and it does not include a way to fully uninstall the program. The software transmits data about users to SunnComm through an Internet connection whenever purchasers listen to CDs, allowing the company to track listening habits -- even though the EULA states that the software will not be used to collect personal information and SunnComm's website says "no information is ever collected about you or your computer." If users repeatedly requested an uninstaller for the MediaMax software, they were eventually provided one, but they first had to provide more personally identifying information. Worse, security researchers recently determined that SunnComm's uninstaller creates significant security risks for users, as the XCP uninstaller did.

"Music fans shouldn't have to install potentially dangerous, privacy intrusive software on their computers just to listen to the music they've legitimately purchased," said EFF Legal Director Cindy Cohn. "Regular CDs have a proven track record -- no one has been exposed to viruses or spyware by playing a regular audio CD on a computer. Why should legitimate customers be guinea pigs for Sony BMG's experiments?"

"Consumers have a right to listen to the music they have purchased in private, without record companies spying on their listening habits with surreptitiously-installed programs," added EFF Staff Attorney Kurt Opsahl, "Between the privacy invasions and computer security issues inherent in these technologies, companies should consider whether the damage done to consumer trust and their own public image is worth its scant protection."

Both the XCP and MediaMax CDs include outrageous, anti-consumer terms in their "clickwrap" EULAs. For example, if purchasers declare personal bankruptcy, the EULA requires them to delete any digital copies on their computers or portable music players. The same is true if a customer's house gets burglarized and his CDs stolen, since the EULA allows purchasers to keep copies only so long as they retain physical possession of the original CD. EFF is demanding that Sony BMG remove these unconscionable terms from its EULAs.

The law firms of Green Welling, LLP, and Lerach, Coughlin, Stoia, Geller, Rudman and Robbins, LLP, joined EFF in the case. Sony BMG is also facing at least six other class action lawsuits nationwide and an action by the Texas Attorney General. EFF looks forward to representing the voice of digital music fans in the resolution of these disputes between Sony BMG and consumers.

For more on the Sony BMG litigation, see:
http://www.eff.org/IP/DRM/Sony-BMG/

EFF's open letter to Sony:
http://www.eff.org/IP/DRM/Sony-BMG/?f=open-letter-2005-11-14.html

November 18, 2005

EFF Goes to Court to Force E-voting Company to Comply With Strict New North Carolina Law

Raleigh, North Carolina - The Electronic Frontier Foundation (EFF) is going to court in North Carolina to prevent Diebold Election Systems, Inc. from evading North Carolina law.

In a last-minute filing, e-voting equipment maker Diebold asked a North Carolina court to exempt it from tough new election requirements designed to ensure transparency in the state's elections. Diebold obtained an extraordinarily broad order, allowing it to avoid placing its source code in escrow with the state and identifying programmers who contributed to the code.

On behalf of North Carolina voter and election integrity advocate Joyce McCloy, EFF asked the court to force Diebold and every other North Carolina equipment vendor to comply with the law's requirements. A hearing on EFF's motion is set for Monday, November 28.

"The new law was passed for a reason: to ensure that the voters of North Carolina have confidence in the integrity and accuracy of their elections," said EFF Staff Attorney Matt Zimmerman. "In stark contrast to every other equipment vendor that placed a bid with the state, Diebold went to court complaining that it simply couldn't comply with the law. Diebold should spend its efforts developing a system that voters can trust, not asking a court to let it bypass legal requirements aimed at ensuring voting integrity."

On November 4, the day that voting equipment bids to the state were due, Diebold obtained a temporary restraining order from a North Carolina superior court, exempting it from criminal and civil liability that could have resulted from its bid. EFF, with the assistance from the North Carolina law firm of Twiggs, Beskind, Strickland &amp Rabenau, P.A., intervened in the case on behalf of McCloy, the founder of the North Carolina Coalition for Verified Voting. In a brief filed Wednesday, EFF argued that Diebold had failed to show why it was unable to meet various new election law provisions requiring source code escrow and identification of programmers. North Carolina experienced one of the most serious malfunctions of e-voting systems in the 2004 presidential election when over 4,500 ballots were lost in a voting system provided by Diebold competitor UniLect Corp. The new transparency and integrity provisions of the North Carolina election code were passed in response to this and other documented malfunctions that have occurred across the country.

The North Carolina Board of Elections is scheduled to announce winning voting equipment vendors on December 1, 2005.

For the brief filed in the case:
http://www.eff.org/Activism/E-voting/20051117_Diebold_v_NC_Motion.pdf

Contact:

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

Related Issues:
November 18, 2005

San Francisco - The Electronic Frontier Foundation (EFF) will have an announcement on Monday about EFF's plans regarding the First4Internet XCP software and the SunnComm MediaMax software that Sony BMG included in 24 million copies of their music CDs. The software has affected the computers of unsuspecting customers when they used their CDs on computers running the Windows operating system.

For more on EFF's concerns see:
http://www.eff.org/IP/DRM/Sony-BMG/?f=open-letter-2005-11-14.html

Contacts:

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

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

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

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

Related Issues:
November 18, 2005

Legal Blogging Tips from EFF

San Francisco - Millions of students across the country are speaking their minds in Internet blogs, and some kids are getting punished for it despite their right to free expression. School administrators in one New Jersey district disciplined a student for his website that was critical of the school. The student eventually received a settlement of $117,500 for the violation of his First Amendment rights, but not before he was suspended for a week and barred from going on his class trip.

Just what are students allowed to publish about their school, their teachers, and their classmates? The Electronic Frontier Foundation (EFF) released a guide to student blogging Friday to help kids learn about their rights and how to defend them. These are important issues for millions of students: a study this month by the Pew Internet &amp American Life Project says approximately 4 million teens keep a blog.

"Teens are blogging everyday, reaching an audience of millions," said EFF Staff Attorney Kurt Opsahl. "With this legal guide, students will have the tools they need to blog legally, and understand how to defend their rights."

The guide to student blogging addresses the different rules for personal blogs and school blogs, for both public and private school students. It also gives advice on how to speak freely about school and discuss controversial issues.

"Students can and should talk about what's important to them in their blogs," said EFF Staff Attorney Kevin Bankston. "That is naturally going to include their school life, and perhaps even topics that make some adults uncomfortable. Students should know their First Amendment rights, so that they can continue to have honest discussions about their lives."

For the guide to student blogging:
http://www.eff.org/bloggers/lg/faq-students.php

Contacts:

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

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

Related Issues:
November 14, 2005

EFF Issues Open Letter on Rootkit Controversy

San Francisco - Sony-BMG's damaging secret rootkit technology has potentially infected millions of computers around the world. Now, the Electronic Frontier Foundation (EFF) is asking Sony-BMG to publicly commit to fixing the problems it has caused for its music fans and take steps to reassure the public that its future CDs will respect its customers' ownership of their computer.

While Sony-BMG belatedly announced a decision to halt manufacturing of CDs with the rootkit software, this is only a small step in the right direction, since reports indicate that over 2.1 million infected disks have been sold already and 2.6 million remain unsold in the stream of commerce. In an open letter to Sony published Monday, EFF spells out the steps that should be taken by Sony to prevent future harm and repair the damage done to computer equipment and consumers' privacy. The letter includes discussions concerning Sony's XCP software as well as its use of SunComm MediaMax software, which has similar problems.

"Sony-BMG should treat its customers with respect and fairness instead it acted little better than the thugs who unleash stealth computer viruses on the public," said EFF Staff Attorney Corynne McSherry. "Halting production is not enough. Sony needs to take steps to fix that damage it has already caused and ensure that nothing like this happens again in the future."

Among the make-good measures recommended by EFF: a recall of all XCP and SunnComm MediaMax-infected CDs, from both consumers and store shelves a guarantee to repair, replace, or refund the purchase price of the CDs to anyone who bought the merchandise and a major publicity campaign warning about the security risks of XCP and SunnComm MediaMax.

"Sony-BMG must have spent a great deal of money advertising these infected CDs to an unsuspecting public," said EFF Staff Attorney Jason Schultz. "We think that it's only fair that an equal amount of money is spent educating the public on the damage that the product could cause to consumers around the world."

EFF believes that Sony-BMG should pay all consumer costs associated with the damage caused by the XCP or SunnComm MediaMax technology. Additionally, Sony should also compensate people for the time, effort, and expense required to verify that their computer was or was not infected with the rootkit.

"Sony-BMG needs to be strongly reminded that it doesn't own your computer, you do," said EFF Senior Staff Attorney Fred von Lohmann.

For the full text of the open letter to Sony:
http://www.eff.org/IP/DRM/Sony-BMG/?f=open-letter-2005-11-14.html

Contacts:

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

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

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

November 9, 2005

EFF Confirms Secret Software on 19 CDs

San Francisco - News that some Sony-BMG music CDs install secret rootkit software on their owners' computers has shocked and angered thousands of music fans in recent days. Among the cause for concern is Sony's refusal to publicly list which CDs contain the infectious software and to provide a way for music fans to remove it. Now, the Electronic Frontier Foundation (EFF) has confirmed that the stealth program is deployed on at least 19 CDs in a variety of genres.

The software, created by First 4 Internet and known as XCP2, ostensibly "protects" the music from illegal copying. But in fact, it blocks a number of legal uses--like listening to songs on your iPod. The software also reportedly slows down your computer and makes it more susceptible to crashes and third-party attacks. And since the program is designed to hide itself, users may have trouble diagnosing the problem.

"Entertainment companies often complain that fans refuse to respect their intellectual property rights. Yet tools like this refuse to respect our own personal property rights," said EFF staff attorney Jason Schultz. "Sony's tactics here are hypocritical, in addition to being a security threat."

If you have listened to a CD with the XCP software on your Windows PC, your computer is likely already infected. An EFF investigation confirmed XCP software on the following titles:

Trey Anastasio, Shine (Columbia)

Celine Dion, On ne Change Pas (Epic)

Neil Diamond, 12 Songs (Columbia)

Our Lady Peace, Healthy in Paranoid Times (Columbia)

Chris Botti, To Love Again (Columbia)

Van Zant, Get Right with the Man (Columbia)

Switchfoot, Nothing is Sound (Columbia)

The Coral, The Invisible Invasion (Columbia)

Acceptance, Phantoms (Columbia)

Susie Suh, Susie Suh (Epic)

Amerie, Touch (Columbia)

Life of Agony, Broken Valley (Epic)

Horace Silver Quintet, Silver's Blue (Epic Legacy)

Gerry Mulligan, Jeru (Columbia Legacy)

Dexter Gordon, Manhattan Symphonie (Columbia Legacy)

The Bad Plus, Suspicious Activity (Columbia)

The Dead 60s, The Dead 60s (Epic)

Dion, The Essential Dion (Columbia Legacy)

Natasha Bedingfield, Unwritten (Epic)

This is not a complete list and Sony-BMG continues to refuse to make such a list available to consumers. Consumers can spot CDs with XCP by inspecting a CD closely, checking the left transparent spine on the front of the case for a label that says "CONTENT PROTECTED." The back of these CDs also mention XCP in fine print. You can find pictures of these and other telltale labeling at http://www.eff.org/IP/DRM/Sony-BMG/.

"Music fans should protect themselves from this stealth attack on their computer system," said EFF Senior Staff Attorney Fred von Lohmann.

For more tips on keeping your computer uninfected:
http://www.eff.org/deeplinks/archives/004144.php

Contacts:

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

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

Related Issues:
November 9, 2005

AcompliaReport.com Settles Fair Use Dispute with Drug Company

San Francisco - A medical news website, with the assistance of the Electronic Frontier Foundation (EFF), has settled a dispute with a French pharmaceutical giant over using the name of a trademarked medication, Acomplia.

The settlement came after EFF filed suit on behalf of the AcompliaReport.com, an independent online newsletter devoted to reporting about a drug called Acomplia. Acomplia may help consumers lose weight and quit smoking, but is not yet approved by the US Food and Drug Administration (FDA). Since March 2004, AcompliaReport.com has published original news and commentary about Acomplia's clinical trials, the drug approval process, and anti-obesity drugs in general—all aimed at helping consumers make more informed decisions about their health.

To emphasize the newsletter's impartiality, every page has always included the subhead "your independent source of news and reviews about the new diet drug Acomplia." Nevertheless, drug maker Sanofi-Aventis claimed that the use of the term "Acomplia" in the AcompliaReport domain name created a "risk of confusion." Sanofi asked an international arbitrator to order the domain name transferred, alleging that the publisher of the AcompliaReport, Milton R. Benjamin, was a cybersquatter. Benjamin promptly sought a declaration from a U.S. district court protecting his right to the domain name, claiming both fair use and First Amendment rights to the name as an online publisher.

"Sanofi's tactics threatened to quash free and accurate speech," said EFF staff attorney Corynne McSherry. "The website uses the Acomplia mark solely to refer to Sanofi's product. That use is a textbook fair use. And basic First Amendment principles barred Sanofi from using trademark law to shut down an independent news site."

Under terms of Tuesday's settlement, AcompliaReport.com keeps its domain name, as long as there is a disclaimer stating that the website is not associated with Sanofi-Aventis.

"We are happy to have this absurd dispute behind us, enabling us to focus on independent coverage of the regulatory process and further development of a novel drug that appears to have the potential to be of considerable benefit to many people," said Benjamin. "A news site needs to be able to use a trademarked name in order to report on a trademarked product."

Contact:

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

Related Issues:
November 4, 2005

DOJ's Decision Denies Courts Guidance on When to Authorize Tracking

San Francisco - The US Department of Justice (DOJ) has told the Electronic Frontier Foundation (EFF) that it will not appeal a New York decision that forcefully rejected its request to track a cell phone user without first showing probable cause of a crime. It also appears that DOJ will not appeal a similar opinion recently issued in Texas.

Last week in the Eastern District of New York, Federal Magistrate Judge James Orenstein, in a scathing opinion, rejected DOJ's request to track a cell phone without a warrant, agreeing with a brief EFF filed in the case. Describing the government's justifications for the tracking request as "unsupported," "misleading," and "contrived," Orenstein ruled that tracking cell phone users in real time required a showing of probable cause that a crime is being committed. Earlier this month, another federal magistrate judge in the Southern District of Texas published his own opinion denying another government application for a cell phone tracking order. DOJ has failed to file timely objections with the District Court in that case, too. Although DOJ may still decide to appeal that case to the Fifth Circuit, its choice not to appeal the nearly identical opinion in the New York case makes that seem unlikely.

"The government's decision not to appeal either of these cases is disappointing," explained EFF staff attorney Kevin Bankston. "The magistrate judge in New York explicitly encouraged the government to appeal the decision so that he and his fellow judges around the country could get some guidance from the higher courts. The very important question of when the government can track your cell phone remains an open question that should be argued openly in the appeals court, not litigated piece-meal in lower-court proceedings where the government is secretly presenting cell phone tracking requests."

An October 28 story in the Washington Post reported that, when questioned about the court decisions, "Justice Department officials countered that courts around the country have granted many such orders in the past without requiring probable cause."

"The Justice Department has been arguing for warrantless cell phone tracking in secret proceedings with magistrate judges across the country, probably for years," said Bankston. "My biggest fear is that DOJ intends to continue seeking these illegal surveillance orders in secret, while avoiding scrutiny from higher courts."

You can read the full text of Judge Orenstein's opinion, and the similar Texas opinion, at http://www.eff.org/legal/cases/USA_v_PenRegister.

Contact:

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

November 3, 2005

RIAA v. The People: Two Years Later

Chicago - It's been two years since the Recording Industry Association of America (RIAA) started suing music fans who share songs online. Thousands of Americans have been hit by lawsuits, but both peer-to-peer (P2P) file sharing and the litigation continue unabated.

In a report released Thursday, "RIAA v. The People: Two Years Later," the Electronic Frontier Foundation (EFF) argues that the lawsuits are singling out only a select few fans for retribution, and many of them can't afford either to settle the case or defend themselves. EFF's report cites the case of a single mother in Minnesota who faces $500,000 in penalties for her daughter's alleged downloading, as well as the case of a disabled veteran who was targeted for downloading songs she already owned.

"Out of the millions of people who download music from P2P systems every day, the RIAA arbitrarily picks a few hundred to sue every month," said EFF Senior Staff Attorney Fred von Lohmann. "Many of those families suffer severe financial hardship. But despite all the publicity, studies show that P2P usage is increasing instead of decreasing."

"RIAA v. The People" was released in conjunction with the first annual P2P Litigation Summit in Chicago on Thursday, which brings together defense attorneys, clients, advocates, and academics to discuss the latest developments in the lawsuits.

Three other reports released Thursday were aimed at helping lawyers representing music fans sued by the RIAA. "Typical Claims and Counter Claims in Peer to Peer Litigation" is a general discussion of the lawsuits, while "Parental Liability for Copyright Infringement by Minor Children" and "Copyright Judgments in Personal Bankruptcy" both tackle important issues arising in defending families from devastating judgments.

"After two years of lawsuits, there's only one conclusion to draw," said von Lohmann. "Suing music fans is no answer to the P2P dilemma."

For "RIAA v. The People: Two Years Later":
http://www.eff.org/IP/P2P/RIAAatTWO_FINAL.pdf

For "Typical Claims and Counter Claims in Peer to Peer Litigation:
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_witkin.pdf

For "Parental Liability for Copyright Infringement":
http://www.eff.org/IP/P2P/Parent_Liability_Nov_2005.pdf

For "Copyright Judgments in Personal Bankruptcy":
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf

For more on the P2P Litigation Summit:
http://www.eff.org/IP/P2P/p2p_litigation_summit.php

Contacts:

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

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

Related Issues:
October 26, 2005

No Cell Phone Location Tracking Without Probable Cause

New York - Agreeing with a brief submitted by EFF, a federal judge forcefully rejected the government's request to track the location of a mobile phone user without a warrant.

Strongly reaffirming an earlier decision, Federal Magistrate James Orenstein in New York comprehensively smacked down every argument made by the government in an extensive, fifty-seven page opinion issued this week. Judge Orenstein decided, as EFF has urged, that tracking cell phone users in real time required a showing of probable cause that a crime was being committed. Judge Orenstein's opinion was decisive, and referred to government arguments variously as "unsupported," "misleading," "contrived," and a "Hail Mary."

"This is a true victory for privacy in the digital age, where nearly any mobile communications device you use might be converted into a tracking device," said EFF Staff Attorney Kevin Bankston. "Combined with a similar decision this month from a federal court in Texas, I think we're seeing a trend—judges are starting to realize that when it comes to surveillance issues, the DOJ has been pulling the wool over their eyes for far too long."

Earlier this month, a magistrate judge in Texas, following the lead of Orenstein's original decision, published his own decision denying a government application for a cell phone tracking order. That ruling, along with Judge Orenstein's two decisions, revealed that the DOJ has routinely been securing court orders for real-time cell phone tracking without probable cause and without any law authorizing the surveillance.

"The Justice Department's abuse of the law here is probably just the tip of the iceberg," said EFF Staff Attorney Kurt Opsahl. "The routine transformation of your mobile phone into a tracking device, without any legal authority, raises an obvious and very troubling question: what other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?"

The government is expected to appeal both decisions and EFF intends to participate as a friend of the court in each case.

You can read the full text of Judge Orenstein's new opinion, and the similar Texas opinion, at http://www.eff.org/legal/cases/USA_v_PenRegister.

Contacts:

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

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

October 17, 2005

EFF Urges Fresh Inquiry Into Ramifications of DRM

London - The Electronic Frontier Foundation (EFF) has criticized a European Commission group for assuming that digital rights management (DRM) is the only way to foster development of the home audiovisual market.

In comments filed last week, EFF European Affairs Coordinator Cory Doctorow took the Networked Audiovisual Systems and Home Platforms (NAVSHP) group to task for its report on developing a harmonized system of DRM requirements. Doctorow urged NAVSHP to explore approaches grounded in empirical research, not industry mythology.

"DRM is already widely deployed without a hint of success and the NAVSHP group has the opportunity to learn from its well-known failures," said Doctorow. "NAVSHP should take a new look into how DRM affects the public, artists, and industry."

So far, DRM has failed to reduce unauthorized copying or enrich content authors and performers, and instead has curtailed competition and sacrificed user-rights for the benefit of entertainment giants. A fresh inquiry could examine why otherwise law-abiding citizens have resorted to finding unrestricted material on peer-to-peer networks and look at technological systems that might encourage new artistic works and new business models.

"The EU and the world are experiencing a revolution in creativity thanks to the Internet," said Doctorow. "An entire generation of remixers, talented amateurs, and Creative Commons enthusiasts have created works that do not require DRM to thrive. NAVSHP should produce recommendations for systems that embrace unrestricted distribution methods in support of these new Internet-native business models. These European creators deserve every bit as much attention from the EU as do American film studios and other incumbents."

For the full critique submitted to NAVSHP: http://www.eff.org/IP/DRM/NAVSHP/

For more on digital video standards in Europe: http://www.eff.org/IP/DVB/

Contact:

Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

Related Issues:
October 17, 2005

Tiny Dots Show Where and When You Made Your Print

Tiny Dots Show Where and When You Made Your Print

San Francisco - A research team led by the Electronic Frontier Foundation (EFF) recently broke the code behind tiny tracking dots that some color laser printers secretly hide in every document.

The U.S. Secret Service admitted that the tracking information is part of a deal struck with selected color laser printer manufacturers, ostensibly to identify counterfeiters. However, the nature of the private information encoded in each document was not previously known.

"We've found that the dots from at least one line of printers encode the date and time your document was printed, as well as the serial number of the printer," said EFF Staff Technologist Seth David Schoen.

You can see the dots on color prints from machines made by Xerox, Canon, and other manufacturers (for a list of the printers we investigated so far, see: http://www.eff.org/Privacy/printers/list.php). The dots are yellow, less than one millimeter in diameter, and are typically repeated over each page of a document. In order to see the pattern, you need a blue light, a magnifying glass, or a microscope (for instructions on how to see the dots, see: http://www.eff.org/Privacy/printers/docucolor/).

EFF and its partners began its project to break the printer code with the Xerox DocuColor line. Researchers Schoen, EFF intern Robert Lee, and volunteers Patrick Murphy and Joel Alwen compared dots from test pages sent in by EFF supporters, noting similarities and differences in their arrangement, and then found a simple way to read the pattern.

"So far, we've only broken the code for Xerox DocuColor printers," said Schoen. "But we believe that other models from other manufacturers include the same personally identifiable information in their tracking dots."

You can decode your own Xerox DocuColor prints using EFF's automated program at http://www.eff.org/Privacy/printers/docucolor/index.php#program.

Xerox previously admitted that it provided these tracking dots to the government, but indicated that only the Secret Service had the ability to read the code. The Secret Service maintains that it only uses the information for criminal counterfeit investigations. However, there are no laws to prevent the government from abusing this information.

"Underground democracy movements that produce political or religious pamphlets and flyers, like the Russian samizdat of the 1980s, will always need the anonymity of simple paper documents, but this technology makes it easier for governments to find dissenters," said EFF Senior Staff Attorney Lee Tien. "Even worse, it shows how the government and private industry make backroom deals to weaken our privacy by compromising everyday equipment like printers. The logical next question is: what other deals have been or are being made to ensure that our technology rats on us?"

EFF is still working on cracking the codes from other printers and we need the public's help. Find out how you can make your own test pages to be included in our research at http://www.eff.org/Privacy/printers/wp.php#testsheets.

Contact:

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

Related Issues:
October 13, 2005

Injunction Could Shut Down Popular Service

Los Angeles - The Electronic Frontier Foundation (EFF) filed a brief Wednesday in support of Google Image Search, arguing that a federal district court should reject a request for a preliminary injunction that could shut the service down.

In its lawsuit, adult entertainment website Perfect 10 claims that Google violates its copyrights by making and delivering thumbnail images of its photos as Internet search results. In its friend-of-the-court brief, EFF shows that these copies are a well-established fair use of digital images and they help people find and use the works for informational and educational endeavors.

"Google Image Search helps millions of people locate and learn about information on the web every day," said Jason Schultz, EFF staff attorney. "We're concerned that the public will lose out if Perfect 10 succeeds in shutting it down."

Perfect 10 argues that a preliminary injunction is justified because Google is violating its right to reproduce, distribute, and display its copyrighted work. But there is a long tradition in fair use that certain kinds of copies are socially useful, even without permission of the author. Courts have held that copies are a legal intermediate step to making non-infringing uses of the copyrighted work—for example in teaching, education, and news reporting.

Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information—much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users.

While the images provided by Perfect 10 may have limited academic application, the ramifications of its lawsuit could have a huge impact on educational research.

"Without the right to make legal copies, Google Image Search wouldn't be able to help you find a picture of Martin Luther King, Jr. at the Lincoln Memorial, for example," said Schultz.

A hearing in this case is set for November 7, 2005.

For the full text of the brief, see:
http://www.eff.org/legal/cases/Perfect10_v_Google/EFF_amicus_brief.pdf

Contact:

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

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October 6, 2005

Requires Plaintiffs to Meet Strict Standard Before Unmasking Critic

Wilmington, Delaware - The Delaware Supreme Court has protected the identity of a blogger in the case of Doe v. Cahill, finding that the plaintiffs failed to meet the strict standards required by the First Amendment to unmask an anonymous critic. It dismissed the case Wednesday.

This is the first state supreme court to rule on a "John Doe" subpoena or to address bloggers' rights.

"Bloggers have a strong First Amendment right to speak anonymously," said Kurt Opsahl, staff attorney at the Electronic Frontier Foundation (EFF). "It is critical that plaintiffs' claims face a stringent test before a court unmasks online critics, lest we reduce the vibrant public debates on the Internet to the cautious views of a select few voices."

The defendant in the case posted under the alias Proud Citizen on the "Smyrna/Clayton Issues Blog" (www.newsblog.info/0405). In two messages from September of 2004, Proud Citizen discussed a member of the Smyrna Town Council, Patrick Cahill, referring to Cahill's "character flaws," "mental deterioration," and "failed leadership," and stated that "Gahill [sic] is...paranoid."

Cahill and his wife filed a complaint for defamation, and sought to discover Proud Citizen's identity, which the trial court allowed under a very relaxed standard -- merely requiring a claim made in good faith. The Delaware Supreme Court disagreed, noting that substantial harm may come from allowing a plaintiff to compel the disclosure of an anonymous defendant's identity with a weak or trivial claim.

Instead, the Court required a stricter standard: the plaintiff must (1) make reasonable efforts to notify the defendant and (2) provide facts sufficient to defeat a summary judgment motion (i.e., submit enough evidence to show the Court that the case was strong enough to proceed to trial). The Court held that the plaintiffs had not shown that statements made by Proud Citizen met this test, in large part because they were likely to be seen by the Internet audience as statements of opinion.

EFF, along with Public Citizen, the American Civil Liberties Union, and the American Civil Liberties Union of Delaware, filed a "friend of the court" brief supporting the blogger's right to speak anonymously. You can learn more about EFF's efforts to defend bloggers' rights at www.eff.org/bloggers/.

Contact:

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

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October 5, 2005

Brief Supports Past Court Opponent DirecTV

San Francisco - The Electronic Frontier Foundation (EFF) filed a brief this week in support of one of its previous court opponents, DirecTV, arguing that a federal appeals court should throw out a lawsuit against the company for accessing a public website.

DirecTV is being sued by Michael Snow, the publisher of an anti-DirecTV website that contained warnings to DirecTV employees that they were not authorized to enter. In its friend-of-the-court brief to the Eleventh Circuit Court of Appeals, EFF argues that the federal Stored Communications Act, on which Snow's suit relies, only protects websites that are configured to be private.

"If you want to keep your website private, then you should protect it with a password," said EFF Staff Attorney Kevin Bankston. "The law doesn't allow web publishers to sue when people they don't like visit their site. Otherwise, any company could publish terms of service forbidding competitors, consumer watchdogs, journalists, or even government officials from scrutinizing a public website." Under Snow's theory, not only could such unauthorized visitors be sued, they could also be prosecuted and sent to prison.

Snow is asking the appeals court to overturn the district court's dismissal of his case. EFF agrees with DirecTV that the case should have been dismissed, but argues that the lower court's reasoning for dismissal was flawed.

"The district court made the right decision but based on the wrong reasons, threatening the legal protections for private web communications," Bankston said. "The appeals court needs to clarify that although public websites aren't protected by federal privacy laws, sites that are actually configured to be private are fully covered."

EFF has opposed DirecTV in the past for its legal campaign against "smart cards," and co-sponsors a website, www.directvdefense.org, designed to help those who have been sued by DirecTV. However, as Bankston said, "When it comes to protecting the rights of Internet users, EFF doesn't hold a grudge. We may oppose DirecTV in other cases, but here, it's plainly on the correct side."

The US Internet Industry Association, whose membership includes many web hosts that offer private web services, joined EFF on the brief.

For the full text of the brief, see: http://www.eff.org/legal/cases/Snow_v_DirecTV/EFF_amicus.pdf

Contact:

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

October 3, 2005

Comments to House of Commons Warn About Regulation

London - The Electronic Frontier Foundation (EFF) has filed comments with the Department of Culture, Media, and Sport (DCMS) in the British House of Commons about plans for digital television broadcasting in Europe. In comments submitted last week, EFF expressed concern that switching off analog broadcasts could result in new digital television standards that unduly restrict the public and manufacturers.

The Digital Video Broadcasting Project (DVB) -- a group that creates standards for digital television in Europe, Australia, and much of Asia -- has proposed a complex system for restricting digital broadcast programming after reception, analogous to the disastrous broadcast flag proposal in the United States. This system, called "Content Protection Copy Management" (CPCM), has been under discussion since 2003.

The CPCM restrictions include an "authorized domain" governing the number of devices that can use content and a myriad of broadcast flags that will restrict usage, recording, and storage. They also specify compliance rules for all manufacturers. As with the US broadcast flag proposal, these compliance rules would result in a ban on the use of free and open source software in connection with digital TV reception and usage.

"The DVB broadcast flag is much more sweeping than the one they tried for in America," said Cory Doctorow, EFF's European Affairs Coordinator, who attends the standards-specifying meetings on behalf of manufacturers who use free and open source software in their products. "The North American Broadcasters' Association has threatened to turn this into a global regulatory mandate. If that comes to pass, you'll never know which TV shows your devices can record or whether a new device will be allowed onto your home network. Additionally, this will give a veto over technology to entertainment companies, who've already ruled out open source because it lets users modify their own equipment."

EFF believes that a European broadcast flag would also be used to gain political leverage to argue again for a broadcast flag in the United States.

For EFF's full comments submitted to the British House of Commons: http://www.eff.org/IP/DVB/dvb_critique.php

One-page summary: http://www.eff.org/IP/DVB/

For EFF's action alert on the US broadcast flag: http://action.eff.org/site/Advocacy?id=129

Contact:

Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

September 29, 2005

TSA Stops Deleting "Secure Flight" Records, But Drags Feet On Project Transparency

Washington, DC - After receiving hundreds of requests from Americans asking to know what personal information the government has obtained about them, the Transportation Security Administration (TSA) told passengers that it "does not have the capability to perform a simple computer-based search" to locate individual records.

TSA revealed last fall that it would use private passenger data from all domestic airline flights taken in June of 2004 to test its troubled "Secure Flight" passenger-screening system. In response to a fruitless Privacy Act request by four Alaska residents, the Electronic Frontier Foundation (EFF) encouraged other airline passengers to request their own files. TSA recently began notifying the passengers who filed Freedom of Information Act (FOIA) and Privacy Act requests that it lacks the ability to easily search its records. TSA also said that it would close such requests unless individuals provided additional detailed information, such as the air carrier they used, the dates of travel, and their phone numbers -- part of the data that requestors were seeking in the first place.

"TSA is failing to follow the law," said EFF Staff Attorney Matt Zimmerman. "The Freedom of Information Act and the Privacy Act place very clear obligations on government agencies for searching their records, and TSA has simply said that it doesn't want to go through the effort. It's bad enough that Secure Flight has repeatedly failed to show that it can be a useful tool to strengthen airline security. However, that doesn't excuse the federal government from telling Americans about the private information it has gathered and used to test the project."

In light of the high volume of record requests that it has received, TSA recently agreed to stop deleting the passenger data it obtained for testing Secure Flight until it processed its backlog of requests. However, TSA told initial requestors that some of their data had already been deleted.

Secure Flight, a passenger-profiling system aimed at identifying security risks, is the successor of the controversial "CAPPS II" program that was cancelled in the wake of questions about its cost, effectiveness, and impact on privacy and civil liberties. The Secure Flight screening process would involve comparing airline passenger reservation data with an interagency terrorist watch list to determine who should be subject to more invasive screenings or arrest. After repeatedly misleading Congress and the public about its intention to use data provided by commercial data brokers to supplement the watch list, TSA recently announced that it would not use such data in the program for the time being. Despite the controversy surrounding the project, TSA has stated that it is moving forward this fall with plans for a partial roll-out involving two airlines.

For more on EFF and Secure Flight: http://action.eff.org/secureflight

Contacts:

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

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

September 29, 2005

EFF Criticizes Plan for Restrictive New Cell Technology

San Francisco - The Trusted Computing Group (TCG), an industry consortium developing controversial computer security specifications, has released a wish list of applications of TCG technology to cell phone security. Unfortunately, much of this "security" aims to help cell phone carriers cement their control over their customers.

The Electronic Frontier Foundation (EFF) attended TCG's announcement in San Francisco on Tuesday and criticized the proposals as steps in the wrong direction for the future of mobile communications.

"TCG is proudly offering to help cell phone carriers lock down your phone," said EFF Staff Technologist Seth Schoen. "The proposals described today aim to help your cell phone company decide who can publish software or media for your phone, whether you can load your own documents, and even whether you can switch carriers or resell your phone. These are not innovations that consumers will applaud."

TCG announced a set of eleven "use cases" that its members will discuss how to support with TCG technologies in cell phones. Among other applications, TCG suggested:

* "Device integrity" and "SIMlock/device personalization," which would prevent you from switching mobile carriers or reselling or donating your phone to someone else.

* "Platform integrity" and "software use" controls, which would let your cell phone company, not you, decide what software is allowed to run on your phone.

* "Digital rights management support" helps publishers, not you, control how you can use media on your cell phone.

TCG says these new "features" are all in the name of "security" - whether they are protecting against viruses or ensuring that users can't take their phones with them when they change carriers and can't use third-party applications that aren't provided by their carriers. But this security is not necessarily for consumers' benefit. In many cases, TCG's proposals offer "security" only against you, not for you, and the legitimate security benefits could be achieved without also locking down consumer choice. You won't see such consumer benefits as being able to change cell phone carriers easily or freely use the digital media you have purchased.

TCG's proposals for cell phones contrast with its work on security chips for personal computers. In the PC environment, TCG has taken pains to say that its technology is not specifically aimed at restricting users. But TCG is now explicitly offering to help restrict users.

"The cell phone industry hasn't yet realized that cell phones are little computers, and that users expect the same amount of choice about how to use their phones as they enjoy with their PCs and PDAs," Schoen added. "We should be working to make cell phones more like PCs rather than making PCs more like restricted cell phones. But today TCG has demonstrated its eagerness to assist carriers who wish to force more restrictions on consumers, rather than offer them more control and flexibility."

For TCG's announcements at the CTIA Wireless IT &amp Entertainment conference: https://www.trustedcomputinggroup.org/groups/mobile

For more on trusted computing on the PC: http://www.eff.org/Infrastructure/trusted_computing

Contacts:

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

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

September 28, 2005

EFF and Others to Challenge Privacy-Invasive Rule

Washington, DC - The Federal Communications Commission (FCC) has issued a "First Report and Order" confirming its expansion of the Communications Assistance to Law Enforcement Act (CALEA) to the Internet. The Electronic Frontier Foundation (EFF) is planning to challenge the rule in court.

The new rule forces Internet broadband providers and "interconnected" Voice-over-IP (VoIP) providers to build backdoors into their networks to make it easier for law enforcement to listen in on private communications. EFF has argued against this expansion of CALEA in several rounds of comments to the FCC.

"A tech mandate requiring backdoors in the Internet endangers the privacy of innocent people, stifles innovation, and risks the Internet as a forum for free and open expression," said Kurt Opsahl, EFF staff attorney.

CALEA, a law passed in the early 1990s, required that all telephone providers build surveillance backdoors into their networks. Due to pressure from EFF and other privacy groups, Congress expressly exempted information services like broadband. But the new details released on September 23rd show that the FCC has decided to ignore Congress's decision to protect the Internet, instead forcing all "facilities-based" providers of any type of broadband Internet access service, as well as interconnected VoIP services, to make their networks wiretap-ready. According to the FCC, all VoIP communications on a given service must be wiretap-ready if the VoIP service offers the capability for users to connect calls with the public switched telephone network (PSTN), even those communications that do not involve the PSTN.

Practically, what this means is that the government will be asking broadband providers -- as well as companies that manufacture devices used for broadband communications -- to create new backdoors for surveillance, imperiling the privacy and security of citizens on the Internet. It also hobbles technical innovation by forcing companies involved in broadband to redesign their products to meet government requirements.

Acknowledging that the FCC is reaching beyond Congress's intention by expanding CALEA to the Internet, FCC Commissioner Michael J. Copps admitted that "[the] statute is undeniably stretched," and FCC Commissioner Kathleen Q. Abernathy issued a plea that Congress revisit its decision to exempt the Internet, stating the "application of CALEA to these new services could be stymied for years" by litigation.

"The FCC's overreach is an attempt to overrule Congress's decision to exclude 'information services,'" said EFF Senior Staff Attorney Lee Tien. "By mandating backdoors in any service that has the capability to replace functions provided by a telephone, the FCC has stretched the statute to the breaking point."

Contact:

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

September 26, 2005

EFF Asks Supreme Court to Consider Controversial Case

San Francisco - On Monday, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the United States Supreme Court, asking the Court to review an important patent case that has broad implications for free speech and consumers' rights.

The Federal Circuit Court of Appeals ruled earlier this year that eBay violated MercExchange's online auction patents and that eBay could be permanently enjoined, or prohibited, from using the patented technology. Then the Court went a dangerous step further. It held that patentees who prove their case have a right to permanent injunctions unless the injunction poses a risk to public health. This "automatic injunction" rule deprives judges of their traditional discretion to consider how an injunction might affect other public interests -- including free speech online.

If this rule is allowed to stand, free expression could suffer.

"We're not saying injunctive relief is never a good idea," said EFF Staff Attorney Corynne McSherry. "But courts must have the ability to look at how an injunction will affect a variety of public interests. That's especially true now, when so many companies are claiming patents on basic technologies that citizens use to communicate online."

In its brief, EFF argues that this ruling threatens free speech because patent owners who claim control over Internet publishing mechanisms are in a position to threaten anyone who uses them to broadcast their ideas, even for noncommercial purposes.

Added McSherry, "Given the explosion of new communications technologies such as blogs, instant messaging, and wikis, this is hardly the time to limit courts' ability to consider the benefits that a given technology brings to freedom of expression, or evaluate the chilling effects of forbidding the use of that technology."

You can read the full brief at:
www.eff.org/legal/cases/ebay_v_mercexchange/EFF_brief.pdf.

For more on patents and how bad law can hurt the public, see:
www.eff.org/patent.

Contacts:

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

Related Issues:
September 26, 2005

Cell Phones Used to Track Users Without Probable Cause

San Francisco - The Electronic Frontier Foundation (EFF) is arguing that a New York federal court should stand by its decision to require probable cause to believe a crime has been or is about to be committed before letting the government secretly track people using their cell phones.

"This is the first case considering when the government can track the movements of your cell phone, and the answer couldn't be more important," said EFF Staff Attorney Kevin Bankston. "Allowing the government to turn anyone's cell phone into a tracking device without probable cause will enable a surveillance society that would make Big Brother jealous."

Last month, the court denied a Justice Department request to monitor a cell phone's location. The ruling revealed that the DOJ has routinely been securing court orders for real-time cell phone tracking without probable cause and without any law authorizing the surveillance.

Many cell phone users aren't aware that their phones can be used to track their location in real-time, even when they aren't using them. EFF filed a friend-of-the-court brief on Friday to oppose a DOJ motion asking the court to reconsider its pro-privacy decision. EFF argues that the Fourth Amendment requires a search warrant for such invasive surveillance, issued under the same strict standards as warrants that authorize phone and Internet wiretaps.

The government has tried to justify this gross expansion of its authority by combining two surveillance statutes, neither of which authorize cell phone tracking on their own. As EFF explains in its brief, there is no support anywhere for this argument -- not in the statutes' language, nor in legislative history, case law, or academic commentary. Indeed, it contradicts the government's own electronic evidence manual. "It's as if the government wants the court to believe that zero plus zero somehow equals one," said Bankston.

EFF's brief marks the first time the DOJ has had to face lawyers presenting an opposing argument on this issue. "Secrecy breeds abuse," said EFF Staff Attorney Kurt Opsahl. "Before this court had the courage to stand up to the government, the hearings were hidden from the public and the judge only saw the government's point of view this led to secret tracking orders -- without basis in law -- that threaten our fundamental liberties."

The DOJ is expected to appeal to the district court if Magistrate Judge Orenstein denies its motion to reconsider. The court has not said when it intends to rule.

You can read the full text of the EFF brief at www.eff.org/legal/cases/USA_v_PenRegister.

Contacts:

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

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

September 22, 2005

Public Celebration at EFF's San Francisco Headquarters

San Francisco - The Electronic Frontier Foundation (EFF) is 15 years old this year. Come celebrate 15 years of defending freedom in the digital world. Our anniversary party is on Sunday, October 2nd, at 5 p.m. at the EFF headquarters in San Francisco, and the event is free of charge and open to everyone.

Please join us for delicious Mexican food and drinks from Pancho Villa and a 3-D cake. You'll also hear a special address from our founders, John Perry Barlow and John Gilmore. Our musical guests are Gypsy Jazz from the Zegnotronic Rocket Society and DJ Ripley and Kid Kameleon.

EFF's office is located at 454 Shotwell Street in San Francisco.

Please let us know if you plan to attend by emailing rsvp@eff.org or by calling 415-436-9333 x129.

Contact:

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

September 21, 2005

San Francisco, CA - Yesterday, the Authors Guild filed a class-action copyright infringement suit against Google over its Google Print library project. Working with major university libraries, Google Print aims to make thousands of books searchable via the Web, allowing people to search for key words or phrases in books. The public may browse the full text of public domain materials in the process of such a search, but only a few sentences of text around the search term in books still covered by copyright.

The Electronic Frontier Foundation (EFF) applauds Google's effort to create the digital equivalent of a library card catalog, and believes the company has a strong case.

"Just as libraries don't need to pay publishers when they create a card catalog, neither should Google or other search engines be required to when they create an improved digital equivalent," said EFF Senior Staff Attorney Fred von Lohmann.

In defending the lawsuit, Google is relying on the copyright principle of fair use, which allows the public to copy works without having to ask permission or pay licensing fees to copyright holders. EFF believes Google is likely to prevail on its defense. One key point in Google's favor is that Google Print is a transformative use of these books -- the company is creating a virtual card catalog to assist people in finding relevant books, rather than creating replacements for the books themselves.

In addition, it is almost certain that Google Print will boost, rather than hurt, the market for the copyrighted books. "It's easy to see how Google Print can stimulate demand for books that otherwise would lay undiscovered in library stacks," said von Lohmann. "It's hard to see how it could hurt publishers or authors."

For additional legal analysis, EFF recommends the white paper, "The Google Print Library Project: A Copyright Analysis," recently published by noted DC copyright attorney Jonathan Band of Policy Bandwidth.

Contacts:

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

September 21, 2005

EFF Applauds Commission Recommendations But Opposes National ID Card Endorsement

Washington, DC - The Carter-Baker Commission, formally known as the Commission on Federal Election Reform, released on Monday an extensive report about the country's electoral health, along with a wide range of suggested reforms. Most of the Commission's recommendations should cheer those concerned about the security of electronic voting.

Named after the co-chairs, Jimmy Carter and James A. Baker III, the Carter-Baker Commission reported that there is an urgent need for the nation to increase transparency in voting processes and to institute robust security measures. It found that the lack of transparency and robust security is undermining public confidence that votes are being accurately recorded.

Among other recommendations, the Commission suggested:

* All voting machines should be equipped with a voter-verifiable paper audit trail and be fully accessible to voters with disabilities.

* Election officials should publicly test all voting equipment before, during, and after Election Day.

* Election officials should permit public observation of the machine certification process.

* Voting machine manufacturers that are unwilling to submit their machines' computer code for Election Assistance Commission testing and review by independent experts should be prohibited from selling their voting machines.

* Election officials should verify upon delivery of a voting machine that the system matches the system that was certified.

"The Commission joins a growing chorus of concerned groups and citizens urging that electronic voting technology and related procedures be overhauled," said Electronic Frontier Foundation (EFF) Staff Attorney Matt Zimmerman. "This high-level, bipartisan panel confirmed that e-voting has introduced an unacceptable amount of uncertainty into voting, which should be the most trusted task performed by government. Congress and the states need to move quickly to ensure that another election doesn't go by with the same systemic flaws. Luckily, on the federal level, HR 550 could help us reach some of those goals by mandating a voter-verified paper trail and mandatory audits."

Zimmerman noted that while most of the Commission's recommendations were on-the-mark, others -- such as permitting states to decide for themselves whether paper or electronic ballots would rule in the event of disparities -- didn't go far enough.

EFF strongly opposes the Commission's privacy-invasive recommendations regarding voter identification, however. The report suggests that voters should be required to present the National ID card mandated by the recently passed Real ID Act at the voting booth.

"Tying voter ID requirements to the REAL ID Act is bad for voting and for privacy," said EFF Senior Staff Attorney Lee Tien. "There's scant evidence that inadequate voter ID is a factor in election fraud. And the Commission admits to concerns that voter ID requirements could disenfranchise eligible voters, adversely affect minorities, or be used to monitor voting behaviors are 'serious and legitimate.' Moreover, the REAL ID Act turns drivers' licenses into de facto national IDs by forcing states to link their DMV databases so that drivers' personal data will instantly be available to a wide range of state, local, and federal officials. Once created, history has shown that law enforcement, employers, landlords, credit agencies, mortgage brokers, and direct mailers will find a way to access, and in all likelihood abuse, those databases."

More on e-voting.

Contacts:

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

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

September 15, 2005

Case Puts Security and Auditability at Risk in the Next Election

Volusia County, FL - On Wednesday, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the 11th Circuit Court of Appeals supporting Volusia County, Florida, in an ongoing legal battle to permit the County to consider voting systems that are both accessible to the disabled and auditable for everyone. EFF's brief strongly urged the Court to reject an argument by the National Federation of the Blind (NFB) that Volusia County should be forced to purchase paperless touchscreen voting machines for the upcoming October 11th election. This deadline, EFF argued, would require the County to rush to prepare for the election, possibly jeopardizing its efforts to program the machines, train election and pollworkers, and educate the public. Instead, the County should be given the chance to acquire voting technology that creates an auditable paper trail, as well as provides accessibility features for a wider range of disabled voters.

EFF's brief was joined by the Handicapped Adults of Volusia County (HAVOC), Verifiedvoting.org, Computer Professionals for Social Responsibility (CPSR), and VotersUnite!

A federal District Court judge ruled against the NFB in July, noting that neither Florida law nor the Americans With Disabilities Act required the County to purchase touchscreen voting machines that leave no paper trail. The NFB appealed the case and continues to demand that the paperless machines be mandated for the October election, despite earlier warnings by County officials that the County needed months to prepare.

"We're disappointed that national disability rights groups have taken such a counter-productive step despite opposition from local disability rights leaders," said EFF Staff Attorney Matt Zimmerman. "At a time when people devoted to meaningful election reform should be working together, it's unfortunate that the NFB is making the dangerous argument that election integrity should be sacrificed for otherwise laudable accessibility goals."

"As a blind voter, I'm strongly opposed to the paperless e-voting machines that the NFB is trying to force onto us," added HAVOC president David Dixon. "I want a voting system that is accessible to as many voters as possible and that also produces an audit trail. The paperless machines are simply the wrong approach, and I support the County's efforts to try to find a better way."

More information on e-voting here.

Contacts:

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

September 13, 2005

New Information Shows No Exhaustive Investigation Before Company Subpoenaed Journalists

Santa Clara County, CA - Court documents in the Apple v. Does case were unsealed last week, and they reveal that the software giant sought to subpoena two reporters' anonymous sources without first conducting a thorough investigation inside the company. This is a crucial issue in the case, which will be heard by the California Court of Appeal, because the First Amendment and the California Constitution require that Apple exhaust all other alternatives before trying to subpoena journalists. The unsealed documents, filed late last week, allow the public to see that Apple failed to conduct an exhaustive investigation. It never took depositions, never issued subpoenas (other than to the journalists), and never asked for signed declarations or information under oath from its own employees.

The Electronic Frontier Foundation (EFF), along with co-counsel Thomas Moore III and Richard Wiebe, is representing journalists with the online news sites AppleInsider.com and PowerPage.org. After the sites printed articles about "Asteroid," rumored to be a much-anticipated FireWire audio interface for GarageBand, Apple claimed violation of trade secret law. In December, the company sued several unknown parties, known as "Does," who allegedly leaked information about "Asteroid" to the journalists.

Apple also claimed that its internal investigation was itself a trade secret and would therefore need to be sealed from opposing counsel. But EFF and co-counsel successfully argued to the court that it be unsealed. Now the public can examine this new information, which clearly shows that the only computer forensics conducted by Apple were a search of Apple's email servers and a rudimentary examination of a single file server. Apple did not examine employees' individual work computers or other devices capable of storing or transmitting electronic information, examine any telephone records, look at copy machines, or otherwise investigate the possibility that information about "Asteroid" was transmitted by means other than email. Moreover, as public documents already showed, Apple did not even obtain sworn statements from employees who had access to the leaked "Asteroid" specs.

"The First Amendment requires that compelled disclosure from journalists be a last resort," said EFF Staff Attorney Kurt Opsahl. "Apple must first investigate its own house before seeking to disturb the freedom of the press."

A California Superior Court ruled earlier this year that the subpoenas could be issued, both to the journalists' email providers as well as to the publishers of the websites themselves. After the journalists appealed, the California Court of Appeal ordered Apple to show cause as to why the journalist's petition should not be granted. No date is set yet for the hearing in the Court of Appeal.

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

September 1, 2005

EFF's New Guide to Digital Music Services Reveals the Truth About DRM

San Francisco, CA - If you buy music from an online music store, you may be getting much less than you thought. Today the Electronic Frontier Foundation (EFF) released "The Customer Is Always Wrong: A User's Guide to DRM in Online Music," which exposes how today's digital rights management (DRM) systems compromise a consumer's right to lawfully manage her music the way she wants.

The guide takes a close look at popular online music services with built-in DRM created by Apple, Microsoft, RealNetworks, and Napster 2.0. Although these companies claim their services allow consumers "freedom" and the ability to play music "any way you want it," the reality often does not live up to the marketing hype. When you download in these formats from online music services, the services don't trumpet the fact that your music contains hidden restrictions that complicate your life and limit the universe of devices you can use to play your music. CDs purchased 20 years ago not only continue to play in every CD and DVD player, but can also be used with any of today's PCs and digital music players. Thanks to DRM, however, a similar investment in music downloaded today may be much less valuable to you 20 years from now.

And yet bypassing the DRM to make perfectly legal uses puts people at risk of liability under the Digital Millennium Copyright Act (DMCA). "In this brave new world of 'authorized digital music services,' law-abiding music fans often get less for their money than they did in the old world of CDs," said Derek Slater, the Harvard student and EFF intern who authored the guide. "Understanding how DRM and the DMCA pose a danger to your rights will help you to make fully informed purchasing decisions."

The Customer Is Always Wrong: A User's Guide to DRM in Online Music

Contact:

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

Related Issues:
September 1, 2005

Shuts Down Open Source Videogame Server Project

St. Louis, MO - In a decision with dangerous implications for competition, consumer choice, reverse engineering, and innovation, the 8th Circuit Court of Appeals today ruled against three software programmers who created a free, open-source program to allow gamers to play games they purchased with others on the platform of their choice. The court held that the Digital Millennium Copyright Act (DMCA) prohibited the reverse engineering needed to create the program and that "click-wrap" and "browse-wrap" licenses are enforceable to prevent reverse engineering.

The software program, called BnetD, allowed legitimate Blizzard videogame owners to set up their own multiplayer games on the Internet and enjoy dozens of additional features instead of being locked into Blizzard's proprietary Battle.net game service. The Electronic Frontier Foundation (EFF), co-counsel for the programmers, took the case to defend the fair-use right to reverse-engineer software and create new programs that interoperate with older ones.

"This ruling is bad for gamers, but it could also be terrible for the software industry," said EFF Staff Attorney Jason Schultz. "It essentially shuts down any competitor's add-on innovation that customers could enjoy with their legitimately purchased products. Add-on innovation is one of the hottest areas of creativity and economic growth right now in software, and this decision will slow investment and development in that field."

The court ruled that Congress' explicit protections for reverse engineering and add-on innovation in the highly controversial DMCA are too narrow and weak to protect innovators from lawsuits when the software they create is used for illegal copying, even if the copying occurs without the knowledge or participation of the program's creators. The court also ruled that clicking on a EULA's "I Agree" button, common when installing almost any software product purchased today, can be used to force both consumers and competitors out of the marketplace for add-on innovation.

"Those who have been claiming that the DMCA does not threaten reverse engineering are plainly wrong," added Schultz. "The DMCA has become a powerful anticompetitive tool, and that means consumers will see fewer innovative products in the marketplace."

Ruling in the case [PDF]

Case background

Contact:

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

Related Issues:
August 26, 2005

Free Speech Prevails When Over 100 Defendants Are Dropped from Suit in Utah

Utah - Private information about anonymous online critics was protected this week when a Utah man dropped his lawsuit against people who had allegedly made critical comments about him on message boards and blogs, including the Yahoo! SCOX board. The plaintiff in the case had asked the court to let him use the subpoena process to unmask his anonymous "John Doe" critics.

The Electronic Frontier Foundation (EFF) and the ACLU of Utah opposed his efforts, filing a friend-of-the-court brief arguing that the First Amendment prohibits such subpoenas unless the court first confirms the merits of the litigant's claims. The Utah District Court agreed and demanded that the plaintiff submit additional information showing his good faith efforts to contact the defendants, the likelihood of jurisdiction, and the viability of his claims. Instead, the plaintiff declined to submit the requested information and dismissed the anonymous Yahoo! message board defendants from the case.

"In keeping with the nationwide trend, the Utah District Court recognized that an online speaker's identity should not be exposed unless the litigant can show that the claims are viable and that the litigant has no other way of getting the information," said EFF Staff Attorney Corynne McSherry. "The court made the right call."

The plaintiff stated on his website that he had decided "anonymous speech is worth protecting." EFF agrees.

Contacts:

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

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

August 24, 2005

EFF Warns Consumers That Digital Rights Management Is Incompatible with Fair Use

San Francisco, CA - On Monday, Sun Microsystems announced its new "Open Media Commons," a digital rights management (DRM) project that the company claims will foster sharing of media while protecting copyrights. However, Sun has offered no evidence that its DRM system will be any better than the Microsoft DRM that it's supposed to challenge.

"No one woke up this morning and said, 'I wish Sun would figure out a way to let me do less with my music and movies,'" said Cory Doctorow, the Electronic Frontier Foundation's European Affairs Coordinator. "DRM doesn't sell hardware, software, or movies. The only reason to build DRM is to trade your users' freedoms for a bit of favor from the entertainment companies, a promise that they'll generously allow your record player to play their records -- provided it meets with their approval. If Sun wants to ship technology that competes with Microsoft DRM, it should start by asserting that copyright holders never get to design the record players their records play on."

Any software system, open or not, that blocks users from making legal use of digital content is not consumer friendly. And DRM systems are notorious for blocking people from making fair uses of content by preventing the duplication of all works, even if those works are in the public domain, are being copied for educational purposes, or are publicly owned materials such as government-gathered facts. Because the Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent DRM, there is no lawful way for people to override DRM systems -- even if they are doing it to make legal copies.

Sun says one of its goals with Open Media Commons is specifying "open, royalty-free digital rights management and codec standards" to "ensur[e] intellectual property protection." The problem with this approach is that making DRM "open" and "royalty-free" doesn't make it any less capable of restricting the public's rights under copyright.

Using "commons" in the name is unfortunate, because it suggests an online community committed to sharing creative works. DRM systems are about restricting access and use of creative works. A better way to protect the public's ability to make fair use of their media is to support the Digital Media Consumers' Rights Act (DMCRA, HR 1201). That bill would permit people to circumvent DRM on media in order to make a legal use of that media.

Contacts:

Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

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

August 23, 2005

EFF Asks Federal Court to Save Fair Use on "Intermediate Copies"

Colorado - Yesterday the Electronic Frontier Foundation asked the Colorado Federal District Court to rule that copying an entire movie to a computer to make a new, lawful work is fair use. The case, Huntsman v. Soderbergh, involves the companies Family Flicks and Play It Clean Video, which make and distribute copies of movies with sexual and violent content removed. To make these "clean" copies of popular films, the companies must first make an "intermediate copy" of the entire movie on a computer in order to edit it.

Members of the Motion Picture Association of America (MPAA), along with several prominent film directors, claim that copying movies in order to make them "clean" is copyright infringement. In a friend-of-the-court brief, EFF argues that as long as making clean movies is not itself an infringing activity, the practice of making intermediate copies should be considered non-infringing also.

This is a important point, because intermediate copies are crucial to the process of creating new copyrighted works. A documentary filmmaker, for instance, might need to make temporary intermediate copies of movies in order to get footage for a film. In the software industry, the process of duplicating a copyrighted work to make an original work is known as reverse engineering, and it has been ruled a fair use in several courts.

"People who make movies should have the same rights software engineers have had for years," said EFF Staff Attorney Jason Schultz. "Fair use makes new art possible."

Contacts:

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

August 19, 2005

Announcing the Tor Graphical User Interface Competition

San Francisco - Now information designers can make it easier for people to protect themselves online. The developers of Tor, a software tool for communicating anonymously online, today announced the Tor graphical user interface (GUI) competition. Entrants will create a usable and aesthetically pleasing GUI for the Tor program, which will allow people to install and configure Tor easily and monitor the software's performance while it's running.

"Security depends on knowing what's working correctly and what isn't," said Roger Dingledine, Tor project leader. "A good interface tells users what's going on so they can make smart decisions."

Tor, which is currently being developed with support from the Electronic Frontier Foundation, helps anonymize web browsing and publishing, instant messaging, IRC, SSH, and other applications that use the TCP protocol. Tor also provides a platform on which software developers can build new applications with built-in anonymity, safety, and privacy features.

The competition has two phases. First, there will be a design competition where entrants can submit mock-up sketches of good interfaces. Second, there will be a competition to create working implementations of good interfaces. People are encouraged to submit to either phase or both phases. Winning entries will be open source, exhibit strong graphic design, and include an intuitive and simple interface. Students, freelancers, and professionals at all levels are encouraged to enter. Everyone who enters will get a free Tor t-shirt, and the best sketches and working implementations will be published on the Tor website.

The competition winners will be announced at the 2006 SOUPS conference.

Contact:

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

August 17, 2005

EFF Opposes Subpoenas Seeking to Reveal the Identities of Web Writers, Bloggers

Utah - A case brought in a US district court by a Utah man threatens to undermine the First Amendment right to speak anonymously on issues of public concern. In Merkey v. Yahoo SCOX et al., the plaintiff requested an expedited process for serving subpoenas that would unmask anonymous "John Doe" critics who participated in a discussion of another court case, in which Utah-based technology company The SCO Group, Inc., is suing IBM.

The Electronic Frontier Foundation (EFF), along with the American Civil Liberties Union (ACLU) of Utah, has filed a friend-of-the-court brief in the case, arguing that a court must review the merits of a litigant's claims before legal process can expose the true names of online Does.

"Frivolous litigation shouldn't be used to circumvent the First Amendment," said EFF Staff Attorney Corynne McSherry. "Before an online speaker is exposed, litigants must show that the anonymous poster's identity is central to their claims, that those claims are viable, and that the litigant can acquire the information in no other manner."

The case arose out of several anonymous postings that appeared in a Yahoo group, as well as the weblogs Groklaw and IP-Wars.net.

Contact:

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

August 15, 2005

EFF Weighs in on Computer Privacy Case in Washington

Washington - Imagine if the law permitted the people who service your computer to share all the personal information on your hard drive with the police, without your consent and without a search warrant. A case on appeal to the Washington State Court of Appeals, State v. Westbrook, threatens to allow just that, turning your friendly neighborhood computer repair technician into a government informer.

Last week, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief in support of the respondent, Robert Westbrook, arguing that citizens have a reasonable expectation of privacy in the contents of their computers, and that their Fourth Amendment rights don't disappear when a computer is delivered to a technician for servicing.

When Westbrook dropped off his personal computer at a Gateway Computer store for servicing, a technician saw private files on the computer that he thought might be illegal. Gateway called the police, who searched through personal files on Westbrook's hard drive looking for more evidence -- before ever getting a warrant. The trial court found, and EFF argues in its brief to the appeals court, that this violated Westbrook's Fourth Amendment rights.

"Customers who drop off their computers for servicing reasonably expect that their private data won't be handed over to the police without a warrant," said EFF Staff Attorney Kurt Opsahl. "Allowing computer technicians to snoop on people's private data is like putting surveillance cameras in dressing rooms. The violation of so many people's privacy far outweighs any benefits that might be gained. It would mean you couldn't use a personal computer for personal business."

EFF was assisted on the brief by criminal appeals specialist Suzanne Lee Elliott of Seattle, who served as local counsel.

Contact:

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

August 11, 2005

Appeals Court Preserves Email Privacy

Massachusetts - In a long-awaited decision, the full First Circuit Court of Appeals today overturned a First Circuit panel decision that had allowed an email service provider to secretly monitor the content of users' incoming messages without violating federal wiretap law. The Electronic Frontier Foundation (EFF) and other privacy organizations submitted briefs in the case urging that the earlier decision be reheard by all seven First Circuit judges.

The defendant in the case, Bradford Councilman, is a seller of rare and used books who also offered email service to customers. Councilman had secretly configured this system to copy all customer email coming from Amazon.com, his competitor, and send it to him. The original First Circuit panel had declared this action to be legal because the messages were in "electronic storage" on the defendant's system for a few milliseconds when they were copied. Thus, the panel argued, Councilman was not in violation of the Wiretap Act. Instead, the panel said that only the Stored Communications Act (SCA) applied to his activities. And the SCA does not place any limits on a communications provider's access to customers' stored messages.

The full court's new decision makes clear that even though emails are stored in computer memory during transmission, it is still criminal to intercept those messages without the user's permission or a court-issued wiretap order. The Wiretap Act doesn't apply merely to communications that are tapped from the wire, but also covers communications that are in "transient electronic storage that is intrinsic to the communication process," according to the court.

"Today's decision reaffirms that email providers can't snoop on their customers' incoming messages any time they like, and that the law protects the privacy of your email just as much as it protects the privacy of your phone calls," says Kevin Bankston, EFF attorney and Equal Justice Works Fellow. "The First Circuit correctly recognized that when law professors, privacy activists, the Department of Justice, and the drafters of the law all agree on what the wiretap statute means, as was the case here, they probably know what they're talking about."

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

August 11, 2005

Corynne McSherry Joins Legal Staff Nicole Nguyen Heads Membership

San Francisco, CA - The Electronic Frontier Foundation (EFF) is pleased to announce the addition of two people to our staff. Corynne McSherry, a Staff Attorney, will be filling out the organization's legal team of intellectual property experts. Nicole Nguyen joins EFF's development team as Membership Coordinator, working on outreach campaigns and membership drives.

McSherry specializes in intellectual property and contract issues. Prior to joining EFF, she was a civil litigator at the law firm of Bingham McCutchen, LLP. She has a Ph.D from the University of California at San Diego and a J.D. from Stanford Law School. While in law school, Corynne published "Who Owns Academic Work: Battling for Control of Academic Intellectual Property" (Harvard University Press).

Before joining EFF, Nguyen worked as a Program Representative for the Haas School of Business at the University of California, Berkeley, and as a Senior International Assignment Consultant for Cendant Mobility. She has a Bachelor of Arts in Economics and a minor in Political Science (with emphasis in International Relations) from the University of California, Irvine.

"We're thrilled to have brought Corynne and Nicole on board," said EFF Executive Director Shari Steele. "With their track records and skills, we're sure they'll make great additions to our team."

EFF currently has 26 employees, including two who are based outside the US and working on international issues.

Contact:

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

August 5, 2005

Tech Mandates Force Companies to Build Backdoors into Broadband, VoIP

Washington, DC - Today the Federal Communications Commission (FCC) issued a release announcing its new rule expanding the reach of the Communications Assistance to Law Enforcement Act (CALEA). The ruling is a reinterpretation of the scope of CALEA and will force Internet broadband providers and certain Voice-over-IP (VoIP) providers to build backdoors into their networks that make it easier for law enforcement to wiretap them. The Electronic Frontier Foundation (EFF) has argued against this expansion of CALEA in several rounds of comments to the FCC on its proposed rule.

CALEA, a law passed in the early 1990s, mandated that all telephone providers build tappability into their networks, but expressly ruled out information services like broadband. Under the new ruling from the FCC, this tappability now extends to Internet broadband providers as well.

Practically, what this means is that the government will be asking broadband providers - as well as companies that manufacture devices used for broadband communications – to build insecure backdoors into their networks, imperiling the privacy and security of citizens on the Internet. It also hobbles technical innovation by forcing companies involved in broadband to redesign their products to meet government requirements.

"Expanding CALEA to the Internet is contrary to the statute and is a fundamentally flawed public policy," said Kurt Opsahl, EFF staff attorney. "This misguided tech mandate endangers the privacy of innocent people, stifles innovation, and risks the functionality of the Internet as a forum for free and open expression."

At the same time, the Department of Justice (DOJ) is asking airlines to build similar backdoors into the phone and data networks on airplanes. EFF and the Center for Democracy and Technology (CDT) submitted joint comments to the FCC arguing against the DOJ's unprecedented and sweeping new technology design mandates and anticipatory wiretapping system.

The FCC's new proposal to expand CALEA to airline broadband illustrates the fallacy of law enforcement's rationale for its CALEA request. The DOJ takes the position that broadband has "substantially replaced" the local telephone exchange, but this claim is reduced to the point of absurdity aboard an airplane and opens the door for CALEA to cover just about anything.

Contact:

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

August 4, 2005

EFF Urges Appeals Court to Find Secret Subpoena Power Unconstitutional

New York - The Electronic Frontier Foundation, joined by several civil liberties organizations and online service providers, filed a friend-of-the-court brief yesterday in the case of Doe v. Gonzales arguing that National Security Letters (NSLs) are unconstitutional. NSLs are secret subpoenas for communications logs, issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers produce records of where their customers go on the Web, as well as what they read and with whom they exchange email. The FBI can even issue NSLs for information about people who haven't committed any crimes.

A federal district court has already found NSLs unconstitutional, and the government is now appealing the case. In its brief to the Second Circuit Court of Appeals, EFF argues that these secret subpoenas imperil free speech by allowing the FBI to track people's online activities. In addition, NSLs violate the First and Fourth Amendment rights of the service providers who receive the secret government demands. EFF and its cosigners argue that NSLs for Internet logs should be subject to the same strict judicial scrutiny applied to other subpoenas that may reveal information about the identities of anonymous speakers – or their private reading habits and personal associations.

Yet NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.

"The Constitution does not allow the FBI to secretly demand logs about Internet users' Web browsing and email history based on vague claims of national security," said EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. "The district court's decision that National Security Letters are unconstitutional should have been a wake-up call to the House of Representatives, which just voted to renew the PATRIOT Act without adding new checks against abuse."

Although such protections are lacking in the PATRIOT renewal bill that the House of Representatives recently passed, they are included in the Senate bill. It is not yet clear whether those protections will be included in the final bill when it reaches the President's desk.

EFF was joined on the brief by the Center for Constitutional Rights, the Center for Democracy and Technology, the Online Policy Group, Salon Media Group, Inc., Six Apart, Ltd., the US Internet Industry Association, and ZipLip, Inc.

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

August 3, 2005

Message Board Poster Criticized Smyrna Town Council Member’s Job Performance

NOTE: This is a press release from Public Citizen, which EFF is recirculating for your information.

Washington, DC - A person who posted Internet messages criticizing a Delaware politician's leadership skills has a right to remain anonymous, Public Citizen urged the Supreme Court of Delaware today in a "friend of the court" brief. The American Civil Liberties Union, the Electronic Frontier Foundation and the American Civil Liberties Union of Delaware also joined the friend of the court brief.

The Internet critic, known in court documents as John Doe No. 1, posted two messages on the Smyrna/Clayton Issues Blog (web log) in September 2004. The messages stated that Patrick Cahill, a member of the Smyrna Town Council, had diminished leadership skills, energy and enthusiasm, and referred to Cahill's "character flaws," "mental deterioration," and "failed leadership." John Doe No. 1, known as "Proud Citizen" on the blog, also stated, "Gahill [sic] is…paranoid."

On November 2, Cahill and his wife sued John Doe No. 1 and three other anonymous critics, claiming that John Doe No. 1 had accused Cahill of suffering from "mental defects and diseases," and that the misspelling of his name implied he was "engaging in extramarital, homosexual affairs." Without notice to the critics, the Cahills sought to identify the critics through a subpoena to the Internet access provider, which notified the four critics of the subpoena.

John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure would violate his First Amendment right to criticize a public official anonymously, but the trial court denied the motion. John Doe No. 1 appealed.

Public Citizen, which has been a strong defender of First Amendment rights on the Internet, urged the court to allow John Doe No. 1 to remain anonymous. Blogs provide individuals such as Cahill the opportunity to immediately respond to postings they believe are false or misleading at no cost, argued Paul Alan Levy, a Public Citizen attorney. Further, courts have ruled that subpoenas seeking the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet.

"The blog postings at issue here contained standard criticism of a public official's job performance – not defamatory statements – and it was well within John Doe No. 1's right to make the comments," Levy said. "We urge the court to rule that this Internet critic has a First Amendment right to speak anonymously on the Internet."

Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of Wilmington, Delaware, served as local counsel.

Contact:

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

Related Issues:
August 2, 2005

Government Order Demanded Only Logs Web Host Rackspace Handed Over Server

San Antonio, TX - The Electronic Frontier Foundation (EFF) last week won a motion allowing it to access sealed court documents about the mysterious disappearance of two web servers used to host news websites for Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists. After six months of secret litigation, EFF obtained a copy of the federal court order that resulted in the October 2004 handover of copies of Indymedia servers to the government by Indymedia's web host. That handover resulted in the silencing of more than 20 news websites and radio feeds for nearly a week.

However, the unsealed documents reveal that the government never officially demanded the computer servers -- the subpoena to Rackspace only requested server log files. This contradicts previous statements by the web host that it took the servers offline because the government had demanded the hardware. The documents also contradict Rackspace's claim that it had been ordered by the court not to discuss publicly the government's demand. It cannot be determined from the unsealed documents whether or not the government informally pressured Rackspace to turn over the servers. By giving the government more data than it requested, the company not only violated the privacy of Indymedia journalists whose information was housed on the servers, but also undermined the free flow of information by taking Indymedia's websites offline. Moreover, the logs that the government requested didn't exist, so Rackspace should never have given the government anything at all.

"When Rackspace received a government demand to examine logs that didn't exist, it had a responsibility to the customer and to the principles of freedom of the press to fight the order and resolve this without taking more than 20 news sites off the Internet," said Kurt Opsahl, EFF staff attorney.

"Rackspace may claim to provide its customers with 'fanatical support,' but in this case it looks like it was more interested in serving the government," added Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "Despite these new revelations, a key question remains: Did government agents intentionally mislead the web host into thinking it had to hand over complete copies of the Indymedia servers?"

The court order served on San Antonio-based Rackspace Managed Hosting was issued based on a treaty request from the Italian government as part of an ongoing criminal investigation in that country.

EFF was assisted in this case by James A. Hemphill and W. Reid Whittliff with Graves, Dougherty, Hearon &amp Moody in Austin, Texas.

Read the Commissioner's subpoena here.

Read the order unsealing the documents here.

There are many more unsealed documents here .

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:
July 21, 2005

Decision Confirms County Council's Ability to Purchase Accessible, Auditable Equipment

Orlando, FL - A federal District Court judge in Florida ruled today that Volusia County is not required to purchase touchscreen voting machines that do not produce a voter-verifiable paper trail. Pending appeal, the county may now move forward with its plans to purchase voting equipment that is both accessible to disabled voters and that creates an auditable paper trail to protect against errors and fraud.

The Electronic Frontier Foundation (EFF) and Florida attorney Jeff Liggio filed an emergency friend-of-the-court brief in the case on behalf of disabled residents of Volusia County who opposed the purchase of the paperless machines. The brief, supporting Volusia County Council members who seek to purchase an alternative voting system, was submitted on behalf of the Handicapped Voters of Volusia County (HAVOC) in opposition to a lawsuit filed July 5th by the National Federation of the Blind (NFB). The NFB suit sought to force the county to spend approximately $700,000 of state funds on Diebold voting equipment that the county has repeatedly rejected as inferior to the accessible, paper-producing AutoMARK system offered by ES&ampS.

"The District Court correctly found that Volusia County was right all along," said Matt Zimmerman, EFF staff attorney. "County officials have shown a tremendous amount of courage in resisting pressure to make a misguided decision that could harm voters. The county has already identified a solution that provides better accessibility as well as creates a voter-verified paper audit trail. The county now has the opportunity to put that system into place in the near future."

Added David Dixon, president of HAVOC, "We're very, very pleased with this decision. We look forward to working with the county to help implement a system that protects the rights of all voters."

In his opinion, District Court Judge John Antoon rejected the argument that a Florida statute required immediate purchase of machines that can't be properly audited, writing, "The Court must assume that, if the Florida legislature had intended to place a legal obligation on counties to purchase electronic voting systems, it would have clearly expressed as much...It did not do so." The Court also noted the benefits of a verifiable paper trail, stating that it is "a feature which has proved valuable in at least one of Florida's past elections."

The NFB has appealed the ruling and EFF and HAVOC will participate in the appeal proceedings as well.

Contact:

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

Related Issues:

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