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EFF Press Release Archives

Press Releases: November 2005

November 30, 2005

EFF Fights Heavy-Handed Tactics From Satellite TV Giant

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

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

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

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

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

Contacts:

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

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

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November 28, 2005

E-Voting Company Forced to Comply with Election Transparency Laws

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

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

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

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

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

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

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

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

Contacts:

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

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

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November 23, 2005

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

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

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

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

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

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

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

November 21, 2005

Company Should Repair Damage to Customers Caused by CD Software

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

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

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

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

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

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

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

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

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

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

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

November 18, 2005

Legal Blogging Tips from EFF

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

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

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

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

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

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

Contacts:

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

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

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November 18, 2005

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

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

Contacts:

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

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

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

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

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November 18, 2005

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

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

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

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

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

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

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

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

Contact:

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

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November 14, 2005

EFF Issues Open Letter on Rootkit Controversy

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

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

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

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

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

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

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

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

Contacts:

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

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

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

November 9, 2005

AcompliaReport.com Settles Fair Use Dispute with Drug Company

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

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

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

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

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

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

Contact:

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

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November 9, 2005

EFF Confirms Secret Software on 19 CDs

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

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

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

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

Trey Anastasio, Shine (Columbia)

Celine Dion, On ne Change Pas (Epic)

Neil Diamond, 12 Songs (Columbia)

Our Lady Peace, Healthy in Paranoid Times (Columbia)

Chris Botti, To Love Again (Columbia)

Van Zant, Get Right with the Man (Columbia)

Switchfoot, Nothing is Sound (Columbia)

The Coral, The Invisible Invasion (Columbia)

Acceptance, Phantoms (Columbia)

Susie Suh, Susie Suh (Epic)

Amerie, Touch (Columbia)

Life of Agony, Broken Valley (Epic)

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

Gerry Mulligan, Jeru (Columbia Legacy)

Dexter Gordon, Manhattan Symphonie (Columbia Legacy)

The Bad Plus, Suspicious Activity (Columbia)

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

Dion, The Essential Dion (Columbia Legacy)

Natasha Bedingfield, Unwritten (Epic)

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

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

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

Contacts:

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

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

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November 4, 2005

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

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

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

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

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

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

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

Contact:

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

November 3, 2005

RIAA v. The People: Two Years Later

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

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

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

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

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

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

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

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

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

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

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

Contacts:

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

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

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