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EFF Press Release Archives

Press Releases: May 2006

May 26, 2006

EFF Arguments Secure Reporters' Privilege for Internet News Gatherers

San Jose - A California state appeals court ruled in favor of the Electronic Frontier Foundation's (EFF's) petition on behalf of three online journalists Friday, holding that the online journalists have the same right to protect the confidentiality of their sources as offline reporters do.

"Today's decision is a victory for the rights of journalists, whether online or offline, and for the public at large," said EFF Staff Attorney Kurt Opsahl, who argued the case before the appeals court last month. "The court has upheld the strong protections for the free flow of information to the press, and from the press to the public."

In their decision, the judges wrote: "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

The case began when Apple Computer sued several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product to online news sites PowerPage and AppleInsider. As part of its investigation, Apple subpoenaed Nfox -- PowerPage's email service provider -- for communications and unpublished materials obtained by PowerPage publisher Jason O'Grady. A trial court upheld the subpoena.

But Friday, the court said that O'Grady is protected by California's reporter's shield law, as well as the constitutional privilege against disclosure of confidential sources. The court also agreed with EFF that Apple's subpoena to email service provider Nfox was unenforceable because it violated the federal Stored Communications Act, which requires direct subpoenas of account holders.

"In addition to being a free speech victory for every citizen reporter who uses the Internet to distribute news, today's decision is a profound electronic privacy victory for everyone who uses email," said EFF Staff Attorney Kevin Bankston. "The court correctly found that under federal law, civil litigants can't subpoena your stored email from your service provider."

EFF worked with co-counsel Thomas Moore III and Richard Wiebe in this case.

For the full decision in the case:
http://www.eff.org/Censorship/Apple_v_Does/H028579.pdf

For more on Apple v. Does:
http://www.eff.org/Censorship/Apple_v_Does/

Contacts:

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

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

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May 25, 2006

Technician Describes Secret NSA Room at AT&ampT Facility

San Francisco - AT&ampT has set up a secret, secure room for the NSA in at least one of the company's facilities -- a room into which AT&ampT has been diverting its customers' emails and other Internet communications in bulk -- according to evidence in key documents partially unsealed today in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against the telecom giant.

"Now the public can see firsthand the testimony of Mark Klein, a former AT&ampT employee who was brave enough to step forward and provide evidence of the company's illegal collaboration with the NSA," said EFF Staff Attorney Kevin Bankston. "Today we have released some of the evidence supporting our allegation that AT&ampT has given the NSA direct access to its fiber-optic network, such that the NSA can read the email of anyone and everyone it chooses -- all without a warrant or any court supervision, and in clear violation of the law."

The Klein declaration and EFF's motion for a preliminary injunction against AT&ampT's ongoing illegal surveillance were filed under seal last month. But last week, U.S. District Judge Vaughn Walker instructed AT&ampT to work with EFF to narrowly redact the documents and make them available to the public.

"We strongly believe in transparency and openness in judicial proceedings and that there is no proper basis for permanently sealing any of the information supporting our preliminary injunction papers," said EFF Staff Attorney Kurt Opsahl. "In the interim, we are glad that as much as possible is released while the motions to unseal filed by media entities are pending."

EFF filed the class-action suit against AT&ampT in January, alleging that the telecommunications company has given the National Security Agency (NSA) secret, direct access to the phone calls and emails going over its network and has been handing over communications logs detailing the activities of millions of ordinary Americans. The next hearing in this case is set for June 23, when the judge will consider the motions to dismiss EFF's suit made by both the U.S. government and AT&ampT.

For the public version of Klein's declaration:
http://www.eff.org/legal/cases/att/KleinDecl-Redact.pdf

For the public version of EFF's preliminary injunction motion:
http://www.eff.org/legal/cases/att/PI-Redact.pdf

For more on EFF's lawsuit:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

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May 22, 2006

Customers Will Get Compensation for Flawed Copy-Protection

New York - A U.S. District Court judge in New York gave final approval Monday to a settlement for music fans who purchased Sony BMG music CDs containing flawed copy protection programs.

"This settlement gets music fans what they thought they were buying in the first place: music that will play on all their electronic devices without installing sneaky software," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn.

The claim process actually began back in February and provides anyone who purchased Sony BMG CDs that included First4Internet XCP and SunnComm MediaMax software with the same music without digital rights management (DRM). Some people are also eligible for additional downloads or a small cash settlement. Anyone who bought one of the affected CDs should start the claims process at http://www.eff.org/sony.

"Participating in the settlement is a way to show Sony BMG -- and the entire entertainment industry -- how important this issue is to you," said Cohn. "If you take the time to claim the product you deserve, maybe other music labels will think twice before wrapping songs in DRM."

The problems with the Sony BMG CDs surfaced last year when security researchers discovered that XCP and MediaMax installed undisclosed -- and in some cases, hidden -- files on users' Windows computers, potentially exposing music fans to malicious attacks by third parties. The infected CDs also communicated back to Sony BMG about customers' computer use without proper notification.

In addition to compensating consumers, Sony BMG was forced to stop manufacturing CDs with both First4Internet XCP and SunnComm MediaMax software. The settlement also waives several restrictive end user license agreement (EULA) terms and commits Sony BMG to a detailed security review process prior to including any DRM on future CDs.

EFF and its co-counsel -- Green Welling LLP Lerach, Coughlin, Stoia, Geller, Ruchman and Robbins and the Law Offices of Lawrence E. Feldman and Associates -- along with a coalition of other plaintiffs' class action counsel, reached the settlement after negotiations with Sony BMG in December of 2005.

For more on the Sony BMG settlement:
http://www.eff.org/sony

Contacts:

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

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

May 18, 2006

EFF Wins Second Reexamination from Patent Office

San Francisco - At the request of the Electronic Frontier Foundation (EFF), the U.S. Patent and Trademark Office (PTO) will reexamine a controversial patent for online test-taking from Test.com. The reexamination order is the second granted in just two months after petitions from EFF's Patent Busting Project.

EFF filed the reexamination request because the extremely broad patent claims to cover almost all methods of online testing. Test.com has used this patent to demand payments from universities with distance education programs that give tests online. But EFF, in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, showed that Test.com was not the first to come up with this testing method -- IntraLearn Software Corporation had been marketing an online test-taking system long before Test.com filed its patent request.

"Bogus patents like these are hurting innovation and education in America," said EFF Staff Attorney Jason Schultz, who heads up the project. "This is a perfect example of how the patent system is broken and what needs to be fixed."

Test.com now has the opportunity to file comments defending the patent, and then the PTO will determine whether to invalidate the patent. The PTO has narrowed or revoked roughly 70% of patents it has decided to reexamine.

The successful reexamination request for the Test.com patent is the latest big victory for EFF's Patent Busting Project, which combats the chilling effects bad patents have on the public interest and innovation. The first reexamination request was granted in April and involves a Clear Channel patent for a system and method of creating recordings of live performances, locking musical acts into using Clear Channel technology and blocking innovations by others.

Earlier this week, the U.S. Supreme Court weighed in on the eBay patent case, signaling how important patent issues are in today's economy. In a unanimous decision, justices overturned a dangerous injunction rule that threatened free speech and consumers' rights -- following the reasoning outlined in an amicus brief from EFF. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

For the full reexamination order:
http://www.eff.org/patent/wanted/test/test_com_reexam_order.pdf

For more information about the Test.com patent reexamination:
http://www.eff.org/patent/wanted/patent.php?p=test

For more on the Patent Busting Project:
http://www.eff.org/patent/

Contact:

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

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May 17, 2006

Evidence For Illegal Spying Case Will Remain Under Seal for Now

San Francisco - A federal judge in San Francisco ruled today that the Electronic Frontier Foundation (EFF) can use critical evidence in its class-action lawsuit against AT&ampT. However, U.S. District Judge Vaughn Walker said the evidence -- three documents that AT&ampT alleges are proprietary and contain the company's trade secrets -- will be kept under seal for now.

EFF's suit accuses AT&ampT of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). The evidence at issue was filed as support for EFF's motion for a preliminary injunction against AT&ampT, seeking to stop the company's ongoing violations of the law and the privacy of its customers.

AT&ampT had requested that the evidence be returned to AT&ampT, and not used in the case. Wednesday, Judge Walker denied that request. Although the allegedly proprietary documents will remain under seal, Judge Walker instructed AT&ampT to work with EFF to narrowly redact any confidential material from EFF's brief and supporting declarations so that they can be made public as soon as possible.

"We're very pleased that the court refused AT&ampT's unreasonable demand that this critical evidence be returned to AT&ampT and struck from the record. And, although the evidence itself will stay under seal, the court has asked AT&ampT to work with us in providing public versions of our legal papers," said EFF Staff Attorney Kevin Bankston. "Taken together with the court's refusal to close the courtroom as AT&ampT had requested, we think today was a real victory for the public's right to know, and for our ability to litigate this case."

The next hearing in this case -- about AT&ampT and the U.S. government's motions to dismiss the lawsuit -- is set for June 23.

For more on the AT&ampT lawsuit:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
May 16, 2006

Four Justices Question Patent Trolls and Business Methods Patents in Concurring Opinion

San Francisco - The United States Supreme Court reversed a lower court decision in the controversial eBay v. MercExchange patent case Monday, invalidating a dangerous precedent that threatened free speech and consumers' rights. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

In Monday's decision, the court unanimously held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. This follows the reasoning outlined in a friend-of-the-court brief filed by the Electronic Frontier Foundation (EFF), which urged the justices to overrule the lower court and protect the public interest in free speech, innovation, and education.

"More and more people are using the Internet to exercise free speech and other individual rights," said Staff Attorney Jason Schultz, one of the authors of the EFF brief. "The court's ruling will allow judges to protect those rights in patent cases."

The lower court's ruling stemmed in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress. Additionally, the concurrence written by Justice Anthony Kennedy and joined by Justices David Souter, John Paul Stevens, and Stephen Breyer noted that the current patent system may be suffering ill effects from business method patents and so-called "patent troll" companies.

"An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees," Justice Kennedy wrote. "In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods … the potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test."

As a result of the Supreme Court's opinion, the case will now return to the trial court to reconsider its decision on the injunction.

For the full Supreme Court opinion:
http://www.patentlyo.com/patent/05_2D130o.pdf

For Justice Kennedy's concurring opinion:
http://www.patentlyo.com/patent/05_2D130c1.pdf

For EFF's amicus brief:
http://www.eff.org/legal/cases/ebay_v_mercexchange/eff_amicus_brief.pdf

For EFF's patent-busting project:
http://www.eff.org/patent/

Contact:

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

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May 16, 2006

Wednesday's Arguments on Sealed Documents Set for 10am

San Francisco - The judge in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT denied a request for a conference today about closing the courtroom from reporters and spectators for tomorrow's hearing in the case, set to begin at 10 a.m. at U.S. District Court in San Francisco, courtroom 6.

EFF's suit accuses AT&ampT of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). Earlier today, lawyers for AT&ampT asked the judge in the case to close the courtroom during the discussion about unsealing critical evidence in the case -- including a declaration by Mark Klein, a retired AT&ampT telecommunications technician, and several internal AT&ampT documents that support EFF's allegations. AT&ampT wants the documents returned and argues that they should not be used as evidence in the case.

For more on the AT&ampT case:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
May 16, 2006

Telecom Giant Wants to Keep Public Away from Document Debate

San Francisco - Lawyers for AT&ampT alerted the Electronic Frontier Foundation (EFF) today that it intends to ask the judge to close the courtroom in Wednesday's hearing in EFF's class-action lawsuit. EFF will oppose the request.

EFF's suit accuses AT&ampT of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). In Wednesday's hearing at U.S. District Court in San Francisco, the judge will hear oral arguments about the unsealing of critical documents in the lawsuit -- including a declaration by Mark Klein, a retired AT&ampT telecommunications technician, and several internal AT&ampT documents that support EFF's allegations.

For AT&ampT's letter to the judge:
http://www.eff.org/legal/cases/att/AndersontoWalkerreHearingLogistics.pdf

For more on the AT&ampT case:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
May 15, 2006

DOJ Intervention Comes Just Days Before Hearing on Sealed Evidence

San Francisco - Early Saturday morning, the United States government filed a motion to dismiss the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT for illegally handing over its customers' telephone and Internet records and communications to the National Security Agency. The government claims that its legal brief and two affidavits from senior intelligence officials that accompanied the motion are classified, preventing even the parties to the lawsuit, EFF and AT&ampT, from seeing them.

While EFF was not permitted to see the government's entire brief, in a redacted version made publicly available the government said that the case against AT&ampT should be immediately terminated because any judicial inquiry into the whether AT&ampT broke the law could reveal state secrets and harm national security.

"The government is trying to lock out any judicial inquiry into AT&ampT and the NSA's illegal spying operation," said EFF Staff Attorney Kurt Opsahl. "It is illegal for major telecommunications companies to simply hand over private customer information to the government. They should not be allowed to hide their illegal activity behind government assertions of 'state secrets' to prevent the judiciary from stepping in to expose and punish the illegal behavior. If the government's motion is granted, it will have undermined the freedoms our country has fought so hard to protect."

EFF's federal lawsuit against AT&ampT alleges that the telecommunications company has given the NSA secret, direct access to the phone calls and emails going over its network, and has been handing over communications logs detailing the activities of millions of ordinary Americans. This week, a USA TODAY report bolstered key allegations in EFF's lawsuit, detailing how AT&ampT, Verizon, and BellSouth provided phone call records about of tens of millions of their customers to the NSA without any legal authorization. The same week, lawyers at the Justice Department were forced to halt their probe into the DOJ's involvement in the spying program because they were refused security clearance by the NSA.

"The press has already widely reported on the illegal domestic surveillance that is the basis for our case. Allowing a court to determine whether AT&ampT broke the law would in no way harm national security. Indeed, our case is meant to protect Americans -- by requiring that the AT&ampT follow the law and protect its customers from unchecked spying into their personal communications," said EFF Staff Attorney Kevin Bankston.

On Wednesday, May 17, at 10 a.m., a U.S. District Court judge in San Francisco will hear oral arguments about the unsealing of critical documents in the lawsuit. The sealed evidence at issue includes a declaration by Mark Klein, a retired AT&ampT telecommunications technician, and several internal AT&ampT documents that support EFF's allegations. AT&ampT wants the documents returned and argues that they should not be used as evidence in the case. For more information about attending the hearing, please email press@eff.org.

For the redacted government motion:
http://www.eff.org/legal/cases/att/GovMotiontoDismiss.pdf

For USA TODAY's story:
http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm

For more on the AT&ampT lawsuit:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
May 12, 2006

Decision Delays Inquiry Into State's History of Voting Machine Problems

San Francisco - The Sixth Circuit Court of Appeals ruled this week that a critical lawsuit aimed at improving the security and integrity of Ohio's voting technology will be put on hold indefinitely. The ruling halts case proceedings until the appeal of the government's motion to dismiss is decided and seriously jeopardizes the chances that critical procedural improvements will be in place by the time voters enter polling places in November.

The Electronic Frontier Foundation (EFF) had intervened in this lawsuit, originally brought by the League of Women Voters of Ohio, in the fall of 2005 on behalf of voter Jeanne White. White's case focuses on the issues surrounding electronic voting and seeks to increase the security and accuracy of Ohio's e-voting technology, as well as to dramatically improve state and local procedures that leave the integrity of the state's e-voting equipment in doubt.

Ohio's closely watched and widely criticized election of 2004 exposed a wide range of problems, complaints, and irregularities in its voting technologies. Among other things, voters reported unacceptably long lines, inadequately trained pollworkers, and voting machines that failed to record their votes correctly. Similar problems were reported in the 2005 elections and in the May 2, 2006, primary, including a chaotic election in Cuyahoga County where election officials have launched a formal investigation. Ohio, however, has no requirements that counties keep formal track of such problems, much less report them to state officials or to the public.

"We had hoped the appellate court would follow the trial court's lead and let the case progress," said EFF Staff Attorney Matt Zimmerman "Without this expedited schedule, the case won't be able to marshal changes to Ohio's voting systems before this November's elections. The state owes it to its citizens to ensure that the problems of the past are identified and won't be repeated. It has, so far, failed to do so."

EFF intends to challenge the Sixth Circuit's recent ruling and to continue to move Ms. White's case forward as quickly as possible. EFF is working with the law firms of Kerger and Associates and Zuckerman, Spaeder, Goldstein, Taylor &amp Kolker as it pursues this case.

For more on the Ohio suit:
http://www.eff.org/Activism/E-voting/ohio/

For more on electronic voting:
http://www.eff.org/Activism/E-voting/

Contact:

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

Related Issues:
May 9, 2006

"Certified Mail" Allows Mass Mailers to Bypass Spam Filters

San Francisco - AOL has quietly flipped the switch on its "certified mail" service, delivering pay-to-send email to some of its millions of customers.

The Goodmail CertifiedEmail service allows large mass-emailers to pay a fee to bypass AOL's spam filters and get guaranteed delivery directly into AOL customers' inboxes. The Electronic Frontier Foundation (EFF) believes the pay-to-send model could leave nonprofits, small businesses, and other groups with increasingly unreliable service.

"Many groups suffer from what the Wall Street Journal called 'spam filters gone wild,' and their email never reaches many on their mailing lists," said EFF Activism Coordinator Danny O'Brien. "With AOL's system in place, AOL will be taking money from big companies to skip those filters entirely. If ISPs can make money for a premium service that evades their malfunctioning filters, we worry that they won't fix those filters for groups who do not pay."

While the creators of "certified mail" claim that their programs help customers recognize legitimate worthy causes and vital banking mail in their inbox, the first pay-to-send mailing spotted by EFF was a promotion for Overstock.com. Overstock has every right to reach customers who signed up for their mailing list, but just because corporations have the money to pay for email delivery doesn't make that mail more important than any other non-commercial mail.

"We already know what commercial, paid-for mass mail is, but we don't call it certified mail. We call it junk mail," said O'Brien. "Why should paying ISPs for delivery let some companies gain special access to your inbox?"

EFF and hundreds of other groups have joined together in the DearAOL.com coalition, which formed to urge AOL and other ISPs to reject pay-to-send schemes. However, in a pointed example of how ISP control of your inbox can go wrong, last month AOL silently started dropping email that even mentioned DearAOL.com. After EFF publicized the problem, AOL quickly rectified the situation.

For more on the DearAOL.com Coalition:
http://www.dearaol.com

For more on AOL's CertifiedEmail launch:
http://www.dearaol.com/blog

Contact:

Danny O'Brien
Activism Coordinator
Electronic Frontier Foundation
danny@eff.org

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