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EFF Press Release Archives

Press Releases: October 2005

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

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

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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

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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

Related Issues:
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

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