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EFF Press Release Archives

Press Releases: July 2006

July 21, 2006

EFF and Libraries Support Google Image Search Against Adult Website

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of library organizations filed a brief with the Ninth Circuit Court of Appeals in San Francisco on Thursday supporting Google Image Search in a showdown over critical digital copyright issues.

Adult entertainment publisher Perfect 10 claims that Google's Image Search service violates copyright law by indexing Perfect 10 photos posted on unauthorized websites, then making and delivering thumbnail images of those photos in its search results. Perfect 10 also contends that Google should be held liable for any copyright infringement that occurs on sites that Google links to.

"Perfect 10 wants to hold Google responsible for the misdeeds of the websites it links to," said Senior Intellectual Property Attorney Fred von Lohmann. "No search engine could survive if that were the rule, nor, for that matter, could most bloggers or other web publishers. If Perfect 10 succeeds in convincing the court that in-line linking and framing of images constitutes a public display or distribution of copyrighted work, then millions of web publishers and bloggers will suddenly be on the wrong side of copyright law -- as well as the millions of web users who may follow a link to a website with infringing content."

The case is on appeal from a lower court ruling issued in February 2006 that ordered Google to remove links to certain websites containing Perfect 10 photographs pending the outcome of the case. Experts, however, widely viewed the ruling as a victory for Google, as the court rejected many of Perfect 10 arguments.

Because the appeal promises to clarify the copyright rules that apply to search engines and other web publishers who link to content on the Internet, it has attracted the attention of the recording industry, motion picture studios, professional photographers, and the technology sector, each of which has also filed briefs in the case.

EFF's amicus brief was filed on behalf of EFF and the Library Copyright Alliance. Members of LCA include the American Library Association, the Medical Library Association, the American Association of Law Libraries, the Association of Research Libraries, and the Special Libraries Association.

A ruling in this case is not expected for several months.

For the full amicus brief:
http://www.eff.org/legal/cases/Perfect10_v_Google/EFFPerfect10vGoogleAmicus.pdf

For more on Perfect 10 v. Google:
http://www.eff.org/legal/cases/Perfect10_v_Google/

Deep Link providing analysis of the lower court ruling:
http://www.eff.org/deeplinks/archives/004433.php

Contacts:

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

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

July 21, 2006

Ruling Comes as Senators Consider Dramatic Changes to Surveillance Law

San Francisco - A federal judge has refused to dismiss the Electronic Frontier Foundation's (EFF's) case against AT&ampT for collaborating with the NSA in illegal spying on millions of ordinary Americans, setting the stage for a congressional showdown over proposed dramatic changes in federal surveillance law.

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 government intervened in the case and asked that it be dismissed because the suit could expose "state secrets." But Thursday, U.S. District Judge Vaughn Walker refused: "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

"We are gratified that Judge Walker rejected the government's overbroad claims of secrecy, and that our case on behalf of AT&ampT customers can go forward," said EFF Staff Attorney Kevin Bankston. "Judge Walker correctly found that the government, after having already admitted to and extensively commented on the NSA's spying program, cannot now claim that it is a secret and sweep AT&ampT's role under the rug."

EFF's victory against government secrecy, however, comes in the shadow of a legislative proposal that could spell trouble for court challenges against the NSA program. Last week, Pennsylvania Senator Arlen Specter and the White House announced a deal on legislation that could lead the government to attempt to shuffle EFF's lawsuit and other challenges out of the traditional court system and into a secret court created by the Foreign Intelligence Surveillance Act (FISA). Until now, the FISA court's only job has been to approve secret surveillance requests by the government, in proceedings where only government lawyers get to argue.

"A decision to bury these cases in the shadowy FISA court would not only violate our nation's tradition of open judicial proceedings, it's also unnecessary," said EFF Staff Attorney Kurt Opsahl. "As Judge Walker demonstrated today, the conventional court system is perfectly capable of handling these cases and can do so by balancing the public's need for transparency with proper protections for security. Any bill that would attempt to sweep these cases into the secret court should be rejected."

Judge Walker has requested that the parties submit briefs by July 31 on how the case should proceed if the government and AT&ampT appeal his decision as expected, and a hearing will take place August 8. Also, on July 27, a panel of judges will consider whether to consolidate this case with others challenging the illegal spying program.

For a recording of EFF's teleconference after the ruling:
http://www.eff.org/legal/cases/att/07202006_press_conference.mp3

For the judge's full decision:
http://www.eff.org/legal/cases/att/308_order_on_mtns_to_dismiss.pdf

For key quotes from the decision:
http://www.eff.org/deeplinks/archives/004833.php

For more on the draft surveillance bill:
http://www.eff.org/news/archives/2006_07.php#004824

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

Contacts:

Derek Slater
Acting Media Coordinator
Electronic Frontier Foundation
derek@eff.org

Related Issues:
July 21, 2006

Government Needs a Warrant to Get Dialed Digits That Are Call Content

In the first ruling of its kind, a federal magistrate judge has held that the government must obtain a search warrant to collect the content of a telephone call, even when that content is dialed digits like bank account numbers, social security numbers or prescription refills. The decision from Magistrate Judge Smith in Houston closely follows the reasoning outlined in an amicus brief from the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT).

The Texas judge invited EFF to file the brief in response to requests from government investigators to use a "pen register" or "trap and trace device" to collect all numbers dialed on a phone keypad after a call has been connected. Investigators can typically get "pen/trap" orders under a legal standard much lower than the "probable cause" required for a typical phone-tapping warrant, because only phone numbers used to connect the call are collected, not the content of the phone call itself.

However, the judge found that when it comes to dialed numbers that represent call content, federal statutes require that investigators either get a probable cause warrant or use filtering technology to ensure that only dialed phone numbers are collected. In fact, according to the court, "Congress ordered law enforcement to do just that, 12 years ago, yet the court notes that the government's current practice is to collect all dialed digits without using any filtering technology."

"Judge Smith correctly recognized that the privacy protections for your phone calls shouldn't depend on whether the information you are communicating is spoken or dialed," said EFF Staff Attorney Kevin Bankston. "Whether it's your bank account number, your social security number, your prescription refill, or even your vote for American Idol, the government has to get a search warrant to tap the numbers you dial after your call has been connected. Allowing such taps without a warrant not only violates longstanding statutes, as the court found here, but the Constitution itself--which makes it all the more troubling that government investigators have been collecting such information without a warrant for years."

In the same opinion, Judge Smith also rejected a new government request to track the location of someone's cell phone without a warrant. EFF has briefed two other courts on the cell-tracking issue, which has been a continuing controversy since Judge Smith and another judge in New York first published decisions on the issue last fall. Those decisions revealed that government investigators had routinely been tracking cell phones for years without getting warrants based on frivolous legal arguments.

For the judge's decision:

http://www.eff.org/legal/cases/Pen_Trap/Smith_dialed_digit_decision.pdf

For EFF and CDT's amicus brief:

http://www.eff.org/legal/cases/Pen_Trap/EFF-and-CDT-Amicus.pdf

Contact:

Kevin Bankston

Staff Attorney

Electronic Frontier Foundation

bankston@eff.org

Related Issues:
July 20, 2006

Government Needs a Warrant to Get Dialed Digits That Are Call Content

San Francisco - In the first ruling of its kind, a federal magistrate judge has held that the government must obtain a search warrant to collect the content of a telephone call, even when that content is dialed digits like bank account numbers, social security numbers or prescription refills. The decision from Magistrate Judge Smith in Houston closely follows the reasoning outlined in an amicus brief from the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT).

The Texas judge invited EFF to file the brief in response to requests from government investigators to use a "pen register" or "trap and trace device" to collect all numbers dialed on a phone keypad after a call has been connected. Investigators can typically get "pen/trap" orders under a legal standard much lower than the "probable cause" required for a typical phone-tapping warrant, because only phone numbers used to connect the call are collected, not the content of the phone call itself.

However, the judge found that when it comes to dialed numbers that represent call content, federal statutes require that investigators either get a probable cause warrant or use filtering technology to ensure that only dialed phone numbers are collected. In fact, according to the court, "Congress ordered law enforcement to do just that, 12 years ago, yet the court notes that the government's current practice is to collect all dialed digits without using any filtering technology."

"Judge Smith correctly recognized that the privacy protections for your phone calls shouldn't depend on whether the information you are communicating is spoken or dialed," said EFF Staff Attorney Kevin Bankston. "Whether it's your bank account number, your social security number, your prescription refill, or even your vote for American Idol, the government has to get a search warrant to tap the numbers you dial after your call has been connected. Allowing such taps without a warrant not only violates longstanding statutes, as the court found here, but the Constitution itself--which makes it all the more troubling that government investigators have been collecting such information without a warrant for years."

In the same opinion, Judge Smith also rejected a new government request to track the location of someone's cell phone without a warrant. EFF has briefed two other courts on the cell-tracking issue, which has been a continuing controversy since Judge Smith and another judge in New York first published decisions on the issue last fall. Those decisions revealed that government investigators had routinely been tracking cell phones for years without getting warrants based on frivolous legal arguments.

For the judge's decision:
http://www.eff.org/legal/cases/Pen_Trap/Smith_dialed_digit_decision.pdf

For EFF and CDT's amicus brief:
http://www.eff.org/legal/cases/Pen_Trap/EFF-and-CDT-Amicus.pdf

Contact:

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

July 20, 2006

San Francisco - A federal judge today denied the government's motion to dismiss the Electronic Frontier Foundation's (EFF's) case against AT&ampT for collaborating with the NSA in illegal spying of millions of ordinary Americans. This allows the case to go forward in the courts.

EFF Staff Attorney Kevin Bankston, EFF Legal Director Cindy Cohn, and Robert Fram of Heller Ehrman LLP will analyze the ruling and answer questions in a conference call at 1:30pm.

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.

For the conference call audio:
http://www.eff.org/legal/cases/att/07202006_press_conference.mp3

For the judge's decision:
http://www.eff.org/legal/cases/att/308_order_on_mtns_to_dismiss.pdf

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

Contacts:

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

John J. Buchanan
Director of Communications
Heller Ehrman LLP
john.buchanan@hellerehrman.com

Related Issues:
July 19, 2006

Subpoena Withdrawn After EFF Intervenes

Tulsa, Oklahoma - An Oklahoma school superintendent has dropped his attempt to unmask the identities of a website operator and all registered users of an Internet message board devoted to discussion of local public schools after the Electronic Frontier Foundation (EFF) intervened in the case.

Jerry Burd, superintendent of the Sperry, Oklahoma, school district, had sued anonymous speakers who criticized him on an online message board. As part of the case, he filed a broad subpoena seeking to identify the site's creator and everyone who had posted or even registered on the site, violating First Amendment protections for anonymous speech and association. Working with Tulsa attorneys Greg Bledsoe and Curtis Parks, EFF filed a motion to quash the subpoena on behalf of the site's operator and a registered user. The superintendent responded by dismissing the case on Monday.

"We're disappointed that Mr. Burd filed this frivolous case in the first place, but we're pleased that he finally recognized that it's wrong to use the discovery process to try to scare his critics into silence," said EFF Staff Attorney Corynne McSherry. "Free-ranging public debate and criticism is essential to promoting effective and responsive public schools."

The Oklahoma case is the latest win for EFF in preserving anonymity in online speech. In recent months, EFF lawyers have represented or provided amicus support in anonymity cases in California, Colorado, and Delaware.

"The right to engage in anonymous communication is fundamental to a free society," said Staff Attorney Matt Zimmerman. "It's critical that judges resist attempts by anyone -- public officials especially -- to turn courtrooms into vehicles to harass and intimidate people out of speaking their minds. Thankfully, court after court has recognized that a plaintiff doesn't have an automatic right to pierce anonymity just because he doesn't like what someone has said."

For EFF's full motion to quash the subpoena:
www.eff.org/legal/cases/Burd_v_Cole/Mtn-to-Quash.pdf

For more on online anonymity:
www.eff.org/Privacy/Anonymity/

Contacts:

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

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

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July 14, 2006

Bill Threatens Future of EFF Case and Other Legal Challenges

San Francisco - Senate Judiciary Committee Chairman Arlen Specter said today that he has negotiated a proposed bill with the White House regarding the NSA's illegal spying program. While the final bill is not public, a draft of the bill obtained by the Electronic Frontier Foundation (EFF) is a sham compromise that would cut off meaningful legal review -- sweeping current legal challenges out of the traditional court system and failing to require court review or congressional oversight of any future surveillance programs.

"This so-called compromise bill is not a concession from the White House -- it's a rubber stamp for any future spying program dreamed up by the executive," said EFF Staff Attorney Kevin Bankston. "In essence, this bill threatens to make court oversight of electronic surveillance voluntary rather than mandatory."

Although the bill creates a process for the executive branch to seek court review of its secret surveillance programs, it doesn't actually require the government to do so. The bill would, however, require that any lawsuit challenging the legality of any classified surveillance program -- including EFF's class-action suit against AT&ampT -- be transferred, at the government's request, to the FISA Court of Review, a secret court with no procedures for hearing argument from anyone but the government. The bill would further allow the government to prevent the court from disclosing any information about the government's surveillance programs to opposing counsel, regardless of the court's strict security procedures.

"When the privacy of millions of Americans is at stake, we deserve more than a closed hearing by a secret court," said EFF Senior Staff Attorney Lee Tien.

For the draft of the Specter bill:
http://www.eff.org/Privacy/Surveillance/NSA/specter_draftbill_071406.pdf

Contacts:

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

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

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org


[Updated: 7/18 to include latest available Specter bill draft]

Related Issues:
July 3, 2006

Investigators Need a Warrant to Get Call Content

San Francisco - The Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT) filed an amicus brief last Friday arguing that the government needs a warrant to collect the content of a telephone call, even if that content came from digits dialed on a phone keypad.

A federal magistrate judge in Texas asked EFF to file the brief in response to requests from government investigators to use a pen register or trap and trace device to collect all information entered using the buttons on a telephone (including, for example, bank account numbers or prescription refill requests). A "pen/trap" order must meet a lower standard of judicial review than a typical phone-tapping warrant, because only telephone numbers dialed from a certain phone -- not the content of the phone call itself -- are normally collected.

In their brief, EFF and CDT ask the judge to continue denying the orders and argue that the government's request cannot be granted without violating federal wiretap law and the Fourth Amendment.

"After the phone call has been connected, the pen/trap device's job is over," said EFF Senior Staff Attorney Lee Tien. "The numbers that you enter through the keypad to fill a prescription or join a meeting are just like the words or passcodes you say when there's no keypad option. They cannot be retrieved without meeting stringent probable cause requirements."

Until Magistrate Judge Smith asked for the brief, these pen/trap requests were unknown to the public. The judge previously asked EFF to respond to the government's secret requests to track cell phone locations without a warrant based on probable cause. Judge Smith as well as several other magistrates around the country have now held that the government cannot track cell phone locations unless it can show probable cause and a judge finds good reason to believe that criminal activity is afoot.

"Just as in the cell tracking cases, the government has tried to hide its baseless arguments from public scrutiny," said EFF Staff Attorney Kevin Bankston. "We commend Judge Smith for taking these issues seriously and allowing EFF to offer a response to the government's contrived reasoning."

For the amicus brief:
http://www.eff.org/legal/cases/Pen_Trap/EFF-and-CDT-Amicus.pdf

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

John Morris
Center for Democracy and Technology
jmorris@cdt.org

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