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EFF Press Release Archives

EFF Press Release Archives

Press Releases: March 2006

March 31, 2006

DOJ Demands First Look at Documents It Claims Might Be Classified

San Francisco - The Electronic Frontier Foundation (EFF) filed a motion for a preliminary injunction in its class-action lawsuit against AT&ampT today. However, much of the evidence that was to be included in the motion—as well as the legal arguments based on that evidence—was held back temporarily at the request of the Department of Justice (DOJ). While the government is not a party to the case, DOJ attorneys told EFF that even providing the evidence under seal to the court—a well-established procedure that prohibits public access and permits only the judge and the litigants to see the evidence—might not be sufficient security.

EFF's motion seeks to stop AT&ampT from violating the law and the privacy of its customers by disclosing to the government the contents of its customers' communications, as part of the National Security Agency's (NSA's) massive and illegal program to wiretap and data-mine Americans' communications. The motion was supported by a number of internal AT&ampT documents that the government now claims might include classified information.

EFF will seek the Court's permission to publicly release the preliminary injunction motion and supporting documents, and hopes to have redacted versions available after further discussions with the government.

"Openness in court proceedings is fundamental to a free society," said EFF Staff Attorney Kurt Opsahl. "The facts supporting our motion are not classified and are important to the public debate over the propriety of the NSA domestic spying program. The public deserves to know the truth."

The NSA program came to light in December, when the New York Times reported that the President had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies, including AT&ampT. This surveillance is ongoing, and today's injunction motion seeks to stop the spying while the case is pending.

"AT&ampT's wholesale diversion of communications into the hands of the NSA violates federal wiretapping laws and the Fourth Amendment," said EFF Staff Attorney Kevin Bankston. "More than just threatening individuals' privacy, AT&ampT's shameful choice to allow the government to spy on millions of ordinary Americans' communications is a threat to the Constitution itself. We are asking the Court to put a stop to it now."

In the lawsuit, EFF is representing the class of all AT&ampT residential customers nationwide. Working with EFF in the lawsuit are the law firms Traber &amp Voorhees, Lerach Coughlin Stoia Geller Rudman &amp Robbins LLP and the Law Office of Richard R. Wiebe.

For the motion for preliminary injunction:
Brief and some evidence NOT AVAILABLE BY DOJ REQUEST

For more on EFF's suit:


Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation

Related Issues:
March 13, 2006

EFF and Other Groups Call for Bills' Withdrawal

San Francisco - A diverse coalition of companies, public interest organizations, and legal scholars, including the Electronic Frontier Foundation (EFF), craigslist, Public Citizen, the US Internet Industry Association (USIIA), the Center for Democracy and Technology (CDT) and Professors Lyrissa C. Barnett Lidsky and Jennifer M. Urban, sent an open letter today to three New Jersey assemblymen, urging them to withdraw their support from two bills designed to eliminate anonymous online speech.

Assembly bills A1327 and A2623 would require Internet service providers to record users' identities and reveal them in any claim of defamation. While aimed at curbing online bad actors, the bills instead run afoul of the First Amendment—which protects the right to speak anonymously—as well as a federal law designed to protect speech in online fora. The bills would require identification of an online poster before the facts were resolved, leading to a flood of unsubstantiated claims designed simply to unmask online speakers.

"Protecting anonymity is vital to maintaining the diversity of viewpoints on the Internet," said EFF Staff Attorney Kurt Opsahl. "Keeping online debates robust enables democracy, even if it allows name-calling and strongly worded opinions about political figures."

The open letter calls for Assemblymen Peter J. Biodi, Wilfredo Caraballo, and Upendra J. Chivukula not to waste taxpayer resources in defending these bills that will inevitably be struck down in court. New Jersey courts are already handling claims of defamation online in a careful and constitutionally appropriate manner, balancing a speaker's anonymity rights with the merits of the plaintiff's claim. The well-established standard in New Jersey and elsewhere for deciding whether to order the identification of anonymous defendants has functioned well to separate ill-founded lawsuits from cases in which identification is appropriate.

As evidence of this balanced approach, the open letter points to the cases available for review on a web site maintained by the Cyberslapp Coalition—several of whose members signed the open letter—at The Cyberslapp web site provides briefs, evidence, and opinions from nearly four dozen "John Doe" cases in which the standard has been discussed and applied. The site, which permits search both by keyword and by state of decision, is provided free of charge as a resource for litigants on both sides of Doe disputes.

For the full text of the open letter:

The Cyberslapp Coalition:


Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation

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March 7, 2006

30,000 Email Users Sign Open Letter

San Francisco - Despite AOL's attempt to divide its critics, the Coalition announced Monday it has grown tenfold from 50 organizations to more than 500 as it fights AOL's controversial plan to create a two-tiered Internet that leaves the little guy behind.

Last week, AOL's proposed "email tax" came under fire from a coalition of political groups on the left and right, businesses and non-profits, charities, and Internet advocacy organizations. More than 400 publications around the world published articles about AOL's plan to allow large mass-emailers to pay to bypass AOL's spam filters and get guaranteed delivery directly into the inboxes of AOL customers—leaving the little guy behind with increasingly unreliable second-tier Internet service.

In just several days, the Coalition grew to include everything from babysitting co-ops to pony clubs, from farmers markets to biker dailies, from Hawaiian skateboard makers to church groups—demonstrating that small, large, ordinary and extraordinary groups depend on free email delivery. All coalition members are located at

Clearly worried by the coalition's growing momentum, AOL on Friday tried to repackage its already existing "Enhanced Whitelist" as if it were a new program for nonprofits. It also tried to divide the coalition with an offer to give special email privileges to some "qualified" nonprofits while leaving other non-profits, charities, small businesses, and even neighbors with community mailing lists behind. Neither of these addresses the core of the problem: AOL's increased financial incentive to downgrade ordinary email delivery.

"I don't take bribes," said Gilles Frydman, Executive Director of the Association of Cancer Online Resources, a free nonprofit online service for cancer patients. "The solution is not AOL offering a few of us service for free in exchange for our silence—the solution is preserving equal access to the free and open Internet for everyone."

If anything, the net result of AOL's Friday announcement was that they conceded the central point of the Coalition.

"By offering to move a few of the little guys from the losers circle to the winners circle, AOL conceded the broader point of our coalition—that AOL's would create a two-tiered Internet that leaves many behind with inferior service," said Adam Green, a spokesperson for Civic Action.

This weekend, the San Jose Mercury News exposed this reality in an editorial entitled, "Paid e-mail will lead to separate, unequal systems free systems will become neglected." It identified AOL's threat to the "free and open" Internet this way: "the temptation would be to neglect the free e-mail system, whose reliability would decline. Eventually, everyone would migrate to the fee-based system. There would be no way around the AOL tollbooth."

"Perversely, AOL's pay-to-send system would actually reward AOL financially for degrading free email for regular customers as they attempt to push people into paid-mail," said Danny O'Brien, Activism Coordinator for the Electronic Frontier Foundation. "AOL should be working to ensure its spam filters don't block legitimate mail, not charging protection money to bypass those filters and offering band-aids to allow some select nonprofits to bypass them as well."

"AOL's pay-to-send scheme threatens the free and open Internet as we know it," said Timothy Karr, campaign director of Free Press, a national, nonpartisan media reform organization. "The Internet needs to be a level playing field. The flow of online information, innovation and ideas is not a luxury to be sold off to the highest bidder."

The Coalition:

San Jose Mercury News editorial:


Danny O'Brien
Activism Coordinator
Electronic Frontier Foundation

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