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EFF Press Release Archives

Press Releases: September 2005

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

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