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EFF Press Release Archives

Press Releases: October 2004

October 28, 2004

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

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

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

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

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

Ren Bucholz, EFF activism coordinator, in Columbus, OH

Cindy Cohn, EFF legal director, in Washington, DC

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

Will Doherty, VVF executive director, in Washington, DC

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

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

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

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

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

Contact:

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

Related Issues:
October 27, 2004

Public Interest Groups Help Protect Anonymity of Accused Infringers

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

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

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

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

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

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

Contacts:

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

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

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

Related Issues:
October 26, 2004

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
October 26, 2004

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

http://PaperOrPlastic2004.org

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

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

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

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

Contact:

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

Related Issues:
October 25, 2004

Motion Demands Information About the Seizure of Indymedia's Servers


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

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

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

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

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

Contacts:

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

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

Related Issues:
October 25, 2004

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

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

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

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

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

Electronic Frontier Foundation Contacts:

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

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

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

Verified Voting Foundation Contacts:

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

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

Related Issues:
October 22, 2004

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

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

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

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

Here is the press release:

Verified Voting Foundation Media Advisory

For Immediate Release: Friday, October 22, 2004

Contact:

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

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

Election Resources for Voters Concerned About E-voting Problems

Verified Voting Foundation Publishes Technology Maps, Guides

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

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

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

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

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

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

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

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

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

Voters' Guide to Electronic Voting

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

Voting Technology Map

Election Officials Contact Information Map

Election Incident Reporting System Incident Map

Election Incident Reporting System Overview

TechWatch technologists provide tech support for voter protection

Electronic Frontier Foundation E-voting Activism page

Global Exchange Fair Election Project

America's Families United Voter Protection Program

Election Protection Coalition member organizations

Related Issues:
October 18, 2004

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

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

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

Contact:

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

Related Issues:
October 15, 2004

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
October 13, 2004

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

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

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

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

Contacts:

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

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

Related Issues:
October 12, 2004

Seizure of Servers Hosting Indymedia Websites Violates the First Amendment

San Francisco, CA -- The Electronic Frontier Foundation (EFF) is representing a coalition of independent Internet journalists whose websites were shut down on Thursday, October 7, when their servers were seized by the FBI. The two servers, which were located in the United Kingdom and managed by San Antonio-based Rackspace Managed Hosting, hosted Indymedia's Internet radio station and more than 20 Indymedia websites, as well as several email lists.

The seizure was in response to a "Commissioner's Subpoena" issued at the request of a foreign government. Citing a gag order, Rackspace has provided no further details. An FBI spokesperson has confirmed that the subpoena was issued at the request of Italian and Swiss authorities. Earlier this month, the FBI made informal requests to both Rackspace and Indymedia to remove an Indymedia news story that included photos of undercover Swiss investigators posing as anti-globalization activists. At the time, the FBI admitted that the posting did not violate US law.

EFF has contacted the FBI to demand Indymedia's illegally seized servers be returned and is preparing for legal action in the event that negotiations with the FBI fail. EFF is also calling on Rackspace to challenge the government's illegal seizure. "If Rackspace stands behind its claim of providing 'Fanatical Support' to its customers, it will go to bat for Indymedia--one of its biggest customers--and demand that the FBI return the seized Internet servers," said Kurt Opsahl, EFF staff attorney. "Rackspace should also fight for its own rights and challenge the gag order preventing it from sharing its side of the story." A federal court in New York City recently found a similar gag order unconstitutional in Doe v. Ashcroft, the ACLU's challenge to a secret PATRIOT Act subpoena served against an Internet service provider.

"The FBI can't pull the plug on more than 20 news websites -- our modern printing presses -- based on a secret proceeding at the request of a foreign government. This is a flagrant violation of the First Amendment," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "As far as the Constitution is concerned, Indymedia has the same rights as any other news publisher. The government can't shut down the New York Times, and it can't shut down Indymedia."

The Indymedia seizure bears a striking resemblance to EFF's very first case, Steve Jackson Games v. US Secret Service. In that case, the Secret Service seized the hardware and software of Steve Jackson Games, an Austin, Texas-based computer game publisher. That seizure, which shut down an Internet bulletin board and email server in addition to disrupting the publisher's business, was found to be an illegal violation of the publisher's rights.


Contact:

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

For inquiries about Indymedia:

Devin T. Theriot-Orr
Edwards Sieh Smith & Goodfriend
devin@essglaw.com

October 12, 2004

Washington, DC - Today, the Supreme Court denied a request by the Recording Industry Association of America (RIAA) to hear its appeal of a lower court decision that Internet service providers (ISPs) do not have to hand over the names of people suspected of copyright infringement.

The case grows out of an incident in which the RIAA used a controversial subpoena provision under the 1998 Digital Millennium Copyright Act (DMCA) to demand that Verizon Internet Services reveal the identity of a Verizon subscriber who allegedly used KaZaA peer-to-peer software to share copyrighted music online. Verizon refused to divulge the subscriber's identity, claiming that the provision didn't cover alleged copyright-infringing material that resides on an individual's computer, only material that resides on an ISP's server.

After the District Court rejected Verizon's interpretation of the DMCA subpoena provision, Verizon appealed. The Electronic Frontier Foundation (EFF) led a coalition of public interest groups and ISPs who filed friend-of-the court briefs in support of Verizon, arguing that RIAA's subpoenas failed to respect the privacy and First Amendment rights of Internet users. The DC Circuit Court found the subpoenas were not authorized by the DMCA. It granted Verizon's request to quash a second subpoena it had received in the meantime, and said that the ISP would not have to hand over information requested in the first.

But the RIAA didn't give up. First, it requested a rehearing in the DC Circuit court, but was denied. And finally, it appealed to the Supreme Court.

"The Supreme Court's refusal to take the case leaves the DC Circuit's well-reasoned opinion as law: The DMCA doesn't give the RIAA a blank fishing license to issue subpoenas and invade Internet users' privacy," said EFF Staff Attorney Wendy Seltzer.

Contacts:

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

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

Related Issues:
October 8, 2004

United Kingdom - Acting under a court order, Texas-based web hosting company Rackspace Managed Hosting handed over two UK-based servers containing Indymedia websites to government agents yesterday morning. Indymedia is a collective of online journalists who maintain a network of independent news websites. The order was apparently issued by a US District Court and served by the FBI, on behalf of a foreign government. Rackspace has refused to comment on what information had been requested or why the servers were confiscated, citing the court order.

The Electronic Frontier Foundation (EFF) is currently assisting Indymedia investigate possible responses to the seizure of its information. More than 20 Indymedia-related websites, along with Indymedia's online radio, were hosted on the servers, which were dedicated machines provided by Rackspace.

"This seizure has grave implications for free speech and privacy. The Constitution does not permit the government unilaterally to cut off the speech of an independent media outlet, especially without providing a reason or even allowing Indymedia the information necessary to contest the seizure," said EFF Staff Attorney Kurt Opsahl.

Rackspace contends that a court order prevents them from providing a copy of the subpoena, confirming which court issued the order, or the government agency who served the subpoena.

Contacts:

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

Devin T. Theriot-Orr
Edwards Sieh Smith & Goodfriend
devin@essglaw.com
Mobile (206)498-9440

October 8, 2004

Washington, DC - A group of 25 entertainment companies filed a petition for certiorari with the Supreme Court today, asking the Court to rewrite copyright law principles that establish when high-tech companies can be held liable for the copyright infringements of their customers.

The petition asks the Supreme Court to overturn the recent Ninth Circuit Court of Appeals decision in MGM v. Grokster, where the court ruled that Grokster and StreamCast Networks were not liable for the infringements committed by people using their software to share copyrighted works. The Electronic Frontier Foundation (EFF) is counsel for StreamCast in the case.

"The entertainment industry petition is a frontal attack on the Betamax doctrine and threatens innovators of every stripe," said EFF Senior Staff Attorney Fred von Lohmann, who argued the MGM v. Grokster case before the Ninth Circuit. The Betamax doctrine takes its name from a landmark 1984 Supreme Court case involving the Sony Betamax VCR. Often described as the Magna Carta of the technology industry, the Betamax doctrine makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are "merely capable of substantial noninfringing uses."

In today's petition, the entertainment industry urges the Court to reverse that established rule and impose on innovators a "legal duty either to have designed their services differently to prevent infringing uses, or to take reasonable steps going forward to do so." Under such a rule, Sony's Betamax VCR would never have seen the light of day, since Sony could have designed it differently or could have modified it after Disney and Universal Studios complained.

The entertainment industry's petition was filed just one day after Senator Orrin Hatch (R-Utah) announced that the Senate was not ready to adopt his Inducing Infringement of Copyrights Act, S. 2560 (formerly known as the INDUCE Act). He suggested that Congress would return to the issue next year. "The entertainment industry appears to think that it can treat the Supreme Court and Congress interchangeably in pushing for their rewrite of copyright law," said von Lohmann. "But it's Congress that writes the Copyright Act, not the courts. The Supreme Court will not be eager to end-run Congress on this complex legislative issue."

Added EFF Staff Attorney Jason Schultz, "The RIAA and MPAA refuse to accept the reality that consumers and technology companies have rights too. They are hell-bent on writing their own laws, one way or another."

EFF will file a response brief with the Supreme Court on behalf of StreamCast in mid-November. It will be several months before the Supreme Court determines whether to hear the case.

Contacts:


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

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

Related Issues:
October 5, 2004

Boston, MA - The First Circuit Court of Appeals decided today to rehear argument in a case that could have a profound effect on email privacy. Last month, the Electronic Frontier Foundation (EFF) submitted a friend-of-the-court brief in the case, US v. Councilman, urging such a rehearing.

In the earlier decision, a panel of First Circuit judges ruled that an email service provider did not violate criminal provisions of the Wiretap Act by monitoring the content of users' incoming messages without their consent. However, the Wiretap Act is the same law that requires the government to get a wiretap order before intercepting emails, and the panel decision could be read to eliminate this requirement. As the panel itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

The brief requesting a rehearing, authored by law professors Orin Kerr and Peter Swire and cosigned by a number of civil liberties organizations, argued that the original panel decision in the Councilman case should be reheard by the entire First Circuit Court of Appeals.

"The First Circuit clearly understands the need to quickly reconsider the court's earlier ruling, which raised significant constitutional questions and threatened to disrupt the traditional understanding of wiretap law," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "Upon rehearing the case, the full First Circuit should recognize that the original decision rewrote the field of Internet surveillance law in ways that Congress never intended."

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

Contact:

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

Related Issues:
October 5, 2004

Lawsuit Questions FCC's Authority to Mandate Copy Protection on All Hardware That Receives Digital TV Signals

Washington, DC - When the Federal Communications Commission's (FCC) broadcast flag mandate goes into effect next year, it will be unlawful to sell devices that can tune in digital television without imposing copy protection on the signal. Many groups have argued that the mandate will hobble people's ability to make fair use of their media. And late yesterday, nine public interest organizations -- including the Electronic Frontier Foundation (EFF), Public Knowledge (PK), and the American Library Association (ALA) -- told the US Appeals Court, DC Circuit, that the FCC exceeded its authority by imposing the broadcast flag regime.

The "flag" is a small amount of data included in a digital TV signal that gives instructions on how the programming may be used by devices that directly receive the signal. This has the potential to severely limit the lawful distribution, use, and backup of digital programs.

"This is a crucial case that will determine how much control the government and Hollywood will have over current and future digital media devices consumers love now and will in the future," said Gigi B. Sohn, president of Public Knowledge and co-counsel for the groups.

EFF staff attorney Wendy Seltzer said, "Right now, you can put an HDTV tuner card into a PC and build a digital video recorder that lets you watch digital television as you choose. We shouldn't have to trade that freedom for government-designed TVs."

The brief argues that the FCC has no authority to regulate digital TV sets and other digital devices unless specifically instructed to do so by Congress. While the FCC does have jurisdiction over TV transmissions, transmissions are not at issue here. The broadcast flag limits the way digital material can be used after the broadcast has already been received. "Bowing to a group of copyright holders led by the MPAA, the FCC promulgated a rule drafted by those corporate interests that will dictate design aspects of a vast array of consumer electronics - televisions, DVD recorders, TiVos, digital VCRs, iPods, and cell phones - for years to come," the brief reads.

ALA legislative counsel Miriam M. Nisbet said, "Two years ago Congress passed a law allowing for use of copyrighted works for distance education. Yet now the FCC through the broadcast flag would prevent schools from using an entire category of those works -- high definition television programs -- in distance education."

Filing the brief along with EFF, PK, and the ALA were the Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Consumer Federation of America, and Consumers Union.

Contacts:

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

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

October 4, 2004

Geneva - The United Nation's (UN) World Intellectual Property Organization (WIPO) has adopted a "development agenda" that acknowledges the need for balance in worldwide policy on trademark, copyright, and patents. In the past, WIPO has been roundly resistant to attempts to balance the interests of copyright holders, who make up the majority of WIPO participants, and the public, which had never been represented at the meetings. Previous efforts to get WIPO to hold one-day information sessions on alternatives to copyright -- such as the public-domain human genome database, the GPL software license that underpins GNU/Linux, and the Creative Commons project's millions of "some rights reserved" books, movies, songs, and images -- have been firmly rebuffed, with major WIPO nations applying enormous pressure to see to it that the issue was never brought to the table.

Now, in the wake of the "Geneva Declaration" -- a document calling on WIPO to work in the interest of all of its stakeholders, including the public -- WIPO's General Assembly has adopted a "development agenda," a kind of lens of public-interest considerations through which the treaty-body will view all future activities.

The effort to get WIPO to officially acknowledge its stated mission of promoting creativity and "technology transfer" to the developing world was led by the Consumer Project on Technology (CPTech), with drafting assistance and support from Electronic Frontier Foundation (EFF) and several other like-minded organizations. CPTech and EFF are part of a burgeoning movement among non-governmental organizations (NGOs) that have started to attend and document the WIPO meetings, exposing the negotiations to the public eye.

CPTech's director, James Love, remarked: "For years, WIPO has pushed to expand the scope and level of intellectual property rights and told developing countries that this would help their development. Today WIPO supported an entirely different approach, which emphasized open source software, public domain goods like the human genome, patent exceptions for access to medicine, the control of anticompetitive practices, and other measures that have been ignored by WIPO for years. It represents a change in culture and a change in direction for WIPO. Many in the WIPO Secretariat opposed this, and few thought it would prevail, but today we are moving forward, on a different footing and in a positive direction, and WIPO will never be the same."

Said Cory Doctorow, EFF's European Affairs Coordinator, "The growing presence of non-governmental pressure organizations like CPTech and EFF at WIPO's meetings has begun to take its toll. The ridiculous IP-at-any-cost position of WIPO has been laid bare and revealed for a sham. Now the organization is taking its first baby-steps towards balance. In the coming months and years, the nonprofit presence at WIPO will broaden and deepen -- we won't let them fool us any longer."

Contact:

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

Related Issues:
October 4, 2004

Riverside, California - A superior court in a Riverside County, California ruled last week that the local registrar of voters does not have to hand over backup data from e-voting machines to verify the results of a recount.

Linda Soubirous, a Republican board of supervisors candidate, requested the data after she was granted the right to a recount in a close race which she lost. The county registrar refused to give her access to a wide range of audit and backup data from from the Sequoia touchscreen e-voting machines used in the election. Soubirous challenged the registrar in court, arguing that without this data the recount simply amounted to a reprint of the same potentially erroneous information. Judge James S. Hawkins ruled the county was able to decide for itself what data was relevant for recount purposes.

"It was an unfortunate decision," said Electronic Frontier Foundation staff attorney Matt Zimmerman. "It means that the public isn't allowed to see even the most limited amount of voting machine data that would be useful for monitoring election integrity. The track record on many of these machines is bad enough. But now local election officials can demand that voters trust them and their voting machine vendors without offering any proof that this trust is warranted."

Soubirous' lawyers, the firm of Strumwasser & Woocher, plan to appeal.

Contact:

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

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