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EFF Press Release Archives

Press Releases: February 2007

February 27, 2007

Justice Department Withholds Records About Purported Changes to Program

Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit against the Department of Justice today, demanding records about secret new court orders that supposedly authorize the government's highly controversial electronic surveillance program that intercepts and analyzes millions of Americans' communications.

When press reports forced the White House to acknowledge the program in December of 2005, the administration claimed that the massive program could be conducted without warrants or judicial authorization of any kind. However, in January of this year, Attorney General Alberto Gonzales announced that the Foreign Intelligence Surveillance Court (FISC) had authorized collection of some communications and that the surveillance program would now operate under its approval. EFF's suit comes after the Department of Justice failed to respond to a Freedom of Information Act (FOIA) request for records concerning the purported changes in the program.

"While national security and law enforcement demand a limited amount of secrecy, Americans have the right to know the government's basic guidelines for this kind of invasive electronic surveillance of their personal communications," said EFF Senior Counsel David Sobel. "The burden is on the Justice Department to justify its failure to disclose the information we've requested."

EFF's suit demands the immediate release of the FISC orders regarding the surveillance program and any FISC rules and guidelines associated with such orders.

Today's FOIA action is separate from EFF's lawsuit against AT&ampT for illegally collaborating with the government's surveillance program. That suit, Hepting v. AT&ampT, is proceeding in U.S. District Court in San Francisco despite the government's ongoing attempts to have the case dismissed.

For the FOIA complaint filed against the Justice Department:
http://www.eff.org/flag/oipr/oipr_complaint.pdf

For more on EFF's FOIA Litigation for Accountable Government Project:
http://www.eff.org/flag/

Contact:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
February 22, 2007

EFF Asks Judge to Uphold Key Trademark Ruling

San Francisco - The Electronic Frontier Foundation (EFF) asked the U.S. 2nd Circuit Court of Appeals today to uphold an important ruling allowing anyone to purchase Google's "sponsored links" tied to trademarks, arguing that the practice is legal under trademark law and provides a vital means for online speakers to connect with audiences on the Internet.

Google's "sponsored links" feature allows customers to buy advertisements attached to certain search terms. When a Google user types those terms into the search engine, the sponsored links appear along with the search results. However, a company named Rescuecom filed a lawsuit against Google over the program, claiming that selling sponsored links for the term "Rescuecom" infringed its trademark.

In an amicus brief filed with the appeals court today, EFF argues that the sponsored links are not an infringing use, and in fact promote a vibrant public sphere by helping online speakers reach a broader audience. An example cited in the brief is that of "The Coalition of Immokalee Farmworkers," a group critical of McDonald's business practices. The coalition bought sponsored links attached to searches for "McDonald's" in order to stimulate debate and mobilize support.

"The Internet has brought together speakers of many kinds -- some competing with trademark owners, others criticizing them, still others simply referring to them while discussing other subjects or products," said EFF Staff Attorney Corynne McSherry. "Services like Google's 'sponsored links' help people with something to say reach those who might be interested in hearing it."

Rescuecom has asked the court to hold that trademark law regulates virtually any use of search keywords that are also trademarks. This would give trademark holders a legal sword to wield against critics and competitors, as well as the intermediaries upon which those critics and competitors rely to spread their message. But courts have historically taken care to ensure that trademark restrictions do not allow markholders to interfere with Constitutionally-protected free speech.

"On the Internet, trademarks aren't just identifiers. They are essential navigation tools and vehicles of expression," said EFF Staff Attorney Jason Schultz. "Quashing this speech goes against both the law and the public interest."

A judge dismissed Rescuecom's case against Google last year, but the company is appealing the decision.

For the full brief filed in Rescuecom v. Google:
http://www.eff.org/legal/cases/rescuecom_v_google/EFF_amicus.pdf

Contacts:

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

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

Related Issues:
February 20, 2007

Klein Declaration and Other Internal Documents to Stay Sealed for Now

San Francisco - A federal judge in San Francisco today denied requests from media groups to unseal critical evidence in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&ampT.

EFF's suit accuses the telecom giant of collaborating with the National Security Agency (NSA) in illegal spying on millions of ordinary Americans. The sealed evidence includes a declaration by Mark Klein, a retired AT&ampT telecommunications technician, as well as several internal AT&ampT documents and portions of a declaration from EFF's expert witness. Some of the evidence was previously released in redacted form, while other evidence is still completely unavailable to the media and the public.

"We're disappointed that the court did not choose to unseal all of the documents that include or refer to the evidence presented by Mark Klein and our expert, J. Scott Marcus. The government has already agreed that the evidence is neither classified nor a state secret, and is only being held under seal because of AT&ampT's weak trade secrecy claims," said Cindy Cohn, EFF's Legal Director. "Given that the privacy of millions of Americans is at stake, we strongly believe that the public would benefit from seeing this evidence for themselves."

Today's order is in response to a December hearing on the sealing issue. U.S. District Court Judge Vaughn Walker granted the media groups' request to intervene in the case, and said that he might revisit the unsealing motion at a later date.

For Judge Walker's full order:
http://www.eff.org/legal/cases/att/order_media_unsealing.pdf

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att/

Contacts:

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

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

Related Issues:
February 20, 2007

Government and AT&ampT Cannot Freeze Proceedings During Appeal

San Francisco - A federal judge today ruled that the Electronic Frontier Foundation (EFF) can go forward with elements of its class action lawsuit against AT&ampT for collaborating with the government on illegal spying in ordinary Americans -- despite the government and AT&ampT's request to freeze proceedings during an appeal.

In his ruling, U.S. District Court Judge Vaughn Walker opened the door to beginning the discovery process, allowing EFF to ask "limited and targeted" questions as long as those questions do not overlap with the issues under consideration in the 9th U.S. Circuit Court of Appeals.

"The government wanted to put this case in the deep freeze," said EFF Staff Attorney Kurt Opsahl. "Instead, the court has invited us to move forward with some targeted questions. We're glad to accept that invitation, which will allow progress while respecting the government's national security concerns."

Judge Walker also refused to implement a blanket stay on the other telecommunications surveillance cases transferred to his court. He ruled that unless the parties stipulate to a stay, then "defendants will answer or otherwise respond to the complaint" by March 29. Earlier today, Judge Walker denied requests from media groups to unseal critical evidence in the AT&ampT case.

"We're disappointed that the court did not choose to unseal all of the documents that include or refer to the evidence presented by Mark Klein and our expert, J. Scott Marcus. The government has already agreed that the evidence is neither classified nor a state secret, and is only being held under seal because of AT&ampT's weak trade secrecy claims," said Cindy Cohn, EFF's Legal Director. "Given that the privacy of millions of Americans is at stake, we strongly believe that the public would benefit from seeing this evidence for themselves."

Judge Walker did grant the media groups' request to intervene, and said he might revisit the unsealing issue at a later date.

For Judge Walker's full order:
http://www.eff.org/legal/cases/att/stayorder220.pdf

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att/

Contacts:

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

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

Related Issues:
February 15, 2007

Discovery Communications Tries to Chill Speech with Baseless Legal Claims

San Francisco - The Electronic Frontier Foundation (EFF) warned Discovery Communications, Inc., today to cease its demands for the removal of an online template that uses humor to help people criticize the media company.

The "SpankMaker," located at http://www.spankmymarketer.com/, helps users create parodies of a controversial marketing campaign in connection with a Discovery television production. The online tool provides images from the marketing campaign and Discovery's corporate websites, and allows users to modify them with commentary.

A lawyer for Discovery has demanded that the website operator remove the template, claiming it infringes Discovery's copyright and is used to defame the company. But in a letter sent in response today, EFF outlines how the use of the images in the template is clearly a non-infringing parody. EFF also explains that the comments that offended Discovery are not libelous and that, in any event, Section 230 of the Communications Decency Act protects the creator of the SpankMaker from liability for comments written by others.

"Once again, a business is trying to use false legal claims to chill criticism," said Staff Attorney Corynne McSherry. "Fortunately, more and more, the targets of these kinds of threats are fighting back."

EFF's letter is part of its ongoing campaign to protect online free speech. Earlier this month, EFF provided legal support for environmental activists who were threatened by the Chicago Auto Show after posting an Internet parody. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character.

For EFF's response letter:
http://eff.org/legal/cases/discoverycom_v_rubinstein/response_letter.pdf

Contact:

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

February 13, 2007

Judge Rescinds Injunction Against Wiki, Other Websites

New York - A U.S. District Court judge today refused Eli Lilly's request to ban a number of websites from publishing leaked documents relating to Zyprexa, Eli Lilly's top-selling drug. Although the judge rejected the First Amendment arguments made by a variety of individuals eager to publish the documents, the court concluded that "it is unlikely that the court can now effectively enforce an injunction against the Internet in its various manifestations, and it would constitute a dubious manifestation of public policy were it to attempt to do so." The order is a victory for the Electronic Frontier Foundation (EFF), which represents an anonymous individual who was previously barred by the court's earlier orders from posting links to the Zyprexa documents on the zyprexa.pbwiki.com wiki.

The Zyprexa documents were leaked from an ongoing product liability lawsuit against Eli Lilly. The internal documents allegedly show that Eli Lilly intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). The documents were the basis for a front-page story in the New York Times in December of last year, and electronic copies are readily available from a variety of Internet sources. EFF's client posted links to one set of copies on a wiki devoted to the controversy that were part of extensive, in-depth analysis from a number of citizen journalists.

"This ruling makes it clear that Eli Lilly cannot invoke any court orders in its futile efforts to censor these documents off the Internet," said EFF Staff Attorney Fred von Lohmann. "We are disappointed, however, that the judge failed to appreciate that its previous orders constituted prior restraints in violation of the First Amendment."

The court stayed its ruling for 10 days in order to permit an appeal. Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. Eli Lilly has paid more than $1.2 billion to resolve lawsuits involving Zyprexa.

For the full order:
http://eff.org/legal/cases/zyprexa/zyprexa_judgement.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

Contact:

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

Related Issues:
February 8, 2007

Free Speech Rights At Stake in Legal Battle Over Controversial Drug Zyprexa

Free Speech Rights At Stake in Legal Battle Over Controversial Drug Zyprexa

New York - The Electronic Frontier Foundation (EFF) told a judge Wednesday to remove the legal muzzle on citizen journalists caught up in a court battle over documents relating to the controversial prescription drug Zyprexa. EFF argues that the injunction against publication of the documents online is prior restraint on their free speech and a violation of First Amendment rights.

EFF's client posted links on a "wiki" to electronic copies of damaging internal Eli Lilly documents about Zyprexa. The documents leaked from an ongoing product liability lawsuit against Eli Lilly over Zyprexa and were the basis for a front-page story in the New York Times in December of 2006. Eli Lilly has since obtained an injunction that forbids 11 individuals and five websites from posting or linking to the documents. In a brief filed with the court Wednesday, EFF explains that this is the digital equivalent of a "stop the presses" order on individuals who were not involved in the leak. The documents remain readily available on the Internet from a variety of sources.

"The millions of patients who use Zyprexa, and their doctors, deserve access to these documents," said EFF Staff Attorney Fred von Lohmann. "The First Amendment guarantees citizen-journalists the right to publish truthful information on matters of public concern, just as it does for newspapers."

Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. According to news reports, the internal documents show that Eli Lilly intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). Eli Lilly has paid more than $1.2 billion to resolve lawsuits involving Zyprexa.

The matter has been submitted to U.S. District Court Judge Jack B. Weinstein in the Eastern District of New York. A decision is expected shortly.

For the full brief:
http://eff.org/legal/cases/zyprexa/brief_opposing_injunction.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

Contact:

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

Related Issues:
February 5, 2007

Friday Hearing on Motion to Stay Proceedings During Appeal

San Francisco - On Friday, February 9, at 2 p.m., the Electronic Frontier Foundation (EFF) will argue that lawsuits against a number of major telecommunications companies for illegally assisting the National Security Agency (NSA) in spying on millions of ordinary Americans should go forward, regardless of the government's attempt to overturn the judge's previous ruling in the 9th U.S. Circuit Court of Appeals.

The government is appealing U.S. District Court Judge Vaughn Walker's decision not to dismiss Hepting v. AT&ampT, EFF's case accusing AT&ampT of collaborating with the NSA in the illegal electronic surveillance. The government has argued that all proceedings before Judge Walker in Hepting -- and in more than 40 other NSA-related cases against additional telecommunications companies transferred to Walker's court -- should be stayed pending the outcome of that appeal.

Also Friday, the judge will hear arguments on whether motions to dismiss should be re-litigated in all of the remaining telecom surveillance cases against Verizon, MCI, Sprint, BellSouth and others, or if the Hepting v. AT&ampT Order should apply to those as well.

For more information about attending the hearing, contact press@eff.org.

WHAT:
NSA telecommunications records lawsuits

WHEN:
2 p.m.
Friday, February 9

WHERE:
450 Golden Gate Ave.
Courtroom 6
San Francisco, CA 94102

For more on EFF's case against AT&ampT:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
February 5, 2007

EFF Europe Office Opens in Brussels

San Francisco - The Electronic Frontier Foundation (EFF) opened a new office in Brussels today to work with various institutions of the European Union (EU) on innovation and digital rights, acting as a watchdog for the public interest in intellectual property and civil liberties policy initiatives that impact the European digital environment.

The new EFF Europe office, made possible by the generous support of the Open Society Institute and Mr. Mark Shuttleworth of the Shuttleworth Foundation, will allow EFF to have an increased focus on the development of EU law. EFF also plans to expand its efforts in European digital activism and looks forward to working with many groups and organizations to fight effectively for consumers' and technologists' interests. EFF's new European Affairs Coordinator, Erik Josefsson, will be an on-the-ground analyst, activist, and educator about critical intellectual property and civil liberties issues.

"In a networked world, protecting innovation and digital rights must be a global effort," Josefsson said. "We hope this new office in Brussels will increase awareness of European developments and enrich the policy debate."

Josefsson was previously the president of the Swedish chapter of Foundation for a Free Information Infrastructure (FFII.se). FFII was instrumental in defeating the proposed Software Patents Directive, which would have brought an expanded software patent scheme to Europe. Josefsson has also worked with European Digital Rights (EDRI) and other European groups in fighting against the European Parliament's adoption of the Data Retention Directive, which threatens to undo the existing pro-consumer privacy protections in Europe. In recent months, Josefsson has been part of a team of committed FFII activists opposing the proposed second Intellectual Property Rights Enforcement Directive (IPRED2), which will impose harsh criminal sanctions and prison terms for violation of intellectual property rights, stifling technical innovation and imperiling consumers if not amended.

"Europe is at the forefront of policy developments that threaten Internet users' freedom, from unwarranted copyright term extension to mandatory data retention," said EFF International Affairs Director Gwen Hinze. "We welcome the valuable European educational and activism expertise that Erik brings to EFF Europe, and we are excited about this new opportunity to represent the public interest in the formative stages of European policy development."

Josefsson will be supported in EFF's San Francisco office by Danny O'Brien, EFF's Activism Coordinator, whose past experience includes digital rights work in the United Kingdom. Josefsson will be succeeded as president of FFII Sweden by Jonas Bosson, who was one of the founders of the organization and will continue to fight new attempts to make software patents enforceable in Europe.

For more on EFF Europe:
http://www.eff.org/global/europe/

Contacts:

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

Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
gwen@eff.org

Related Issues:
February 1, 2007

EFF Backs Parody Protest Site of Chicago Auto Show

Chicago - The Electronic Frontier Foundation (EFF) warned the Chicago Auto Show today to back off attempts to muzzle protestors who posted a parody of the show's website.

The parody site, autoshowshutdown.org, is a clearinghouse for information about the "Auto Show SHUTDOWN Festival" -- an annual event where hundreds of cyclists parade through Chicago to raise awareness about global warming and to promote sustainable transportation. The ride culminates in a rally at the entrance to the show. But this week, a lawyer for the auto show sent a threatening letter to the protestors, claiming that the website amounted to trademark infringement and that it would seek damages if the parody was not taken down.

In a letter sent in response today, EFF reminded the auto show that trademark infringement must involve some commercial use, which is clearly not the case in this non-profit, community-organized protest.

"Auto show organizers can't stop thousands of citizens from attending the SHUTDOWN Festival. Instead, they have resorted to baseless trademark claims to silence critics and interfere with planning for an event that embarrasses them," said EFF Staff Attorney Jason Schultz. "Both trademark law and the First Amendment won't allow for that."

In addition, an EFF investigation found that the auto show does not actually own the trademark it is claiming was infringed. Records show that the Chicago Auto Show abandoned the mark by neglecting to respond to correspondence from the U.S. Patent and Trademark Office, as required by law.

"The auto show seems so scared of fair competition in the marketplace of ideas that they aren't playing clean," said protest organizer Dan Korn. "Fortunately, we know our free speech rights, and we will be exercising them during the SHUTDOWN Festival, despite their threats."

EFF's letter to the Chicago Auto Show is part of its ongoing campaign to protect online free speech from the chilling effects of bogus intellectual property claims. EFF is currently representing a blogger threatened with copyright infringement by ABC after criticizing talk radio hosts. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character.

For the full response sent to the Chicago Auto Show:
http://www.eff.org/legal/cases/chicagoautoshow/response_letter.pdf

For more on the threat to the SHUTDOWN Festival:
http://www.eff.org/legal/cases/chicagoautoshow/

Contacts:

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

Dan Korn
Organizer
Chicago Auto Show SHUTDOWN Festival
dan@dankorn.com

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