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EFF Press Release Archives

Press Releases: June 2007

June 25, 2007

Public Interest Groups Urge Court to Block Radical Expansion of Discovery Rules

San Francisco - The Electronic Frontier Foundation (EFF) and Center for Democracy and Technology (CDT) urged a California court Friday to overturn a dangerous ruling that would require an Internet search engine to create and store logs of its users' activities as part of electronic discovery obligations in a civil lawsuit.

The ruling came in a copyright infringement lawsuit filed by motion picture studios against TorrentSpy, a popular search engine that indexes materials made publicly available via the Bit Torrent file sharing protocol. TorrentSpy has never logged its visitors' Internet Protocol (IP) addresses. Notwithstanding this explicit privacy policy, a federal magistrate judge has now ordered TorrentSpy to activate logging and turn the logged data over to the studios.

"This unprecedented ruling has implications well beyond the file sharing context," said EFF Staff Attorney Corynne McSherry. "Giving litigants the power to rewrite their opponent's privacy policies poses a risk to all Internet users."

The magistrate judge incorrectly reasoned that, because the IP addresses exist in the Random Access Memory (RAM) of TorrentSpy's webservers, they are "electronically stored information" that must be collected and turned over to the studios under the rules of federal discovery.

This decision could reach every function carried out by a digital device. Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM.

"In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information," said EFF Senior Staff Attorney Fred von Lohmann. "There is no reason why the rules should be different simply because a company uses digital technologies."

The decision also threatens to radically increase the burdens that companies face in federal lawsuits, potentially forcing them to create and store an avalanche of data, including computer server logs, digital telephone conversations, and drafts of documents never saved or sent.

The magistrate judge in the case has stayed her order while TorrentSpy appeals the ruling. The case is Columbia Pictures Industries v. Bunnell, No. 06-01093 FMC, pending in the U.S. District Court for the Central District of California before Judge Florence-Marie Cooper.

For the full amicus brief:
http://www.eff.org/legal/cases/torrentspy/EFF_CDT_amicus.pdf

Contacts:

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

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

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June 21, 2007

Vote to Authorize Subpoenas Sets Stage for Showdown Over Illegal Surveillance

San Francisco - The Senate Judiciary Committee voted today to authorize subpoenas related to the National Security Agency (NSA)'s domestic spying program, setting the stage for a Congressional showdown over the surveillance of millions of ordinary Americans. The subpoenas demand certain legal documents that the Administration has withheld despite Congress' repeated requests.

"This subpoena authorization is a critical first step toward uncovering the full extent of the NSA's illegal spying and the role that telecommunications companies like AT&ampT played in it," said EFF Staff Attorney Kevin Bankston. "Considering that it's been almost six years since the NSA started spying on Americans without warrants and over a year since that spying was revealed publicly, these subpoenas are long overdue. It's high time for Congress to get to the bottom of this mess."

The Electronic Frontier Foundation (EFF) is suing AT&ampT for illegally assisting in the NSA spying. The government has asked the 9th U.S. Circuit Court of Appeals to dismiss EFF's case, claiming that the lawsuit could expose state secrets.

"Our case against AT&ampT includes evidence from a former employee that points to a massive spying program impacting millions of people -- a program far broader than the government has admitted to," said Bankston. "Americans deserve to know the truth about the NSA program."

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

Contacts:

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

June 19, 2007

EFF Urges Court to Protect Privacy at Border Crossings

San Francisco - The government should not search travelers' computers at border crossings without suspicion, said the Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) in an amicus brief filed today in the 9th U.S. Circuit Court of Appeals.

Over the past several years, U.S. customs agents have been searching and even seizing travelers' laptops when they are entering or leaving the country if the traveler fits a profile, appears to be on a government watch list, or is chosen for a random inspection. The Supreme Court has ruled that customs and border agents may perform "routine" searches at the border without a warrant or even reasonable suspicion, but EFF and ACTE argue that inspections of computers are far more invasive than flipping through a briefcase.

"Our laptop computers contain vast amounts of personal information about our lives. You may do your banking on your computer, for example, or send email to your doctor about health concerns," said EFF Senior Staff Attorney Lee Tien. "Travelers should not be subjected to unconstitutionally invasive searches of their laptops and other electronic devices just because they are crossing the border."

The case in front of the 9th Circuit, United States v. Arnold, arose out of a suspicionless "profile" search of Michael Timothy Arnold's computer at Los Angeles International Airport. The search uncovered evidence of alleged child pornography, and Mr. Arnold moved to suppress the evidence as the product of an unconstitutional search. The district court ruled that the agents lacked a reasonable basis to suspect Mr. Arnold of having committed a crime, and the government appealed the ruling. Mr. Arnold is represented by the Pasadena law firm of Kaye, McLane &amp Bednarski, LLP. The EFF-ACTE amicus brief was prepared by Arent Fox LLP.

For the full amicus brief:
http://www.eff.org/legal/cases/US_v_arnold/arnold_amicus.pdf

Contact:

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

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June 18, 2007

Landmark Ruling Gives Email Same Constitutional Protections as Phone Calls

San Francisco - The government must have a search warrant before it can secretly seize and search emails stored by email service providers, according to a landmark ruling Monday in the 6th U.S. Circuit Court of Appeals. The court found that email users have the same reasonable expectation of privacy in their stored email as they do in their telephone calls -- the first circuit court ever to make that finding.

Over the last 20 years, the government has routinely used the federal Stored Communications Act (SCA) to secretly obtain stored email from email service providers without a warrant. But today's ruling -- closely following the reasoning in an amicus brief filed the by the Electronic Frontier Foundation (EFF) and other civil liberties groups -- found that the SCA violates the Fourth Amendment.

"Email users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls," said EFF Staff Attorney Kevin Bankston. "The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can't secretly seize your emails without a warrant."

Warshak v. United States was brought in the Southern District of Ohio federal court by Steven Warshak to stop the government's repeated secret searches and seizures of his stored email using the SCA. The district court ruled that the government cannot use the SCA to obtain stored email without a warrant or prior notice to the email account holder, but the government appealed that ruling to the 6th Circuit. EFF served as an amicus in the case, joined by the American Civil Liberties Union and the Center for Democracy &amp Technology. Law professors Susan Freiwald and Patricia Bellia also submitted an amicus brief, and the case was successfully argued at the 6th Circuit by Warshak's counsel Martin Weinberg.

For the full ruling in Warshak v. United States:
http://eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf

For EFF's resources on the case, including its amicus brief:
http://www.eff.org/legal/cases/warshak_v_usa

Contacts:

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

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June 15, 2007

New Evidence of Misuse Prompts Immediate Response in EFF FOIA Lawsuit

Washington, D.C. - A judge ordered the FBI today to finally release agency records about its abuse of National Security Letters (NSLs) to collect Americans' personal information. The ruling came just a day after the Electronic Frontier Foundation (EFF) urged the judge to immediately respond in its lawsuit over agency delays.

EFF sued the FBI in April for failing to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs as revealed in a Justice Department report. This week, more evidence of abuse was uncovered by the Washington Post, and EFF urged the judge Thursday to force the FBI to stop stalling the release of its records on the deeply flawed program.

"The reports we've seen so far about NSL abuse are just the tip of the iceberg," said EFF Staff Attorney Marcia Hofmann. "FBI officials told the Washington Post that there have likely been several thousand total instances of misuse. Americans deserve answers about this scandal and how the FBI has abused its power to spy on ordinary citizens."

Under the PATRIOT Act, the FBI can use NSLs to get private records about anyone's domestic phone calls, e-mails and financial transactions without any court approval -- as long as it claims the information could be relevant to a terrorism or espionage investigation. Without a judge's oversight, the law is ripe for the abuse that has been uncovered in these recent reports.

"The law itself is the source of the problem. It's time for Congress to repeal these expanded NSL powers and protect Americans from this abuse of authority," said Hofmann.

The judge's order requires the FBI to process 2500 pages of NSL-related records by July 5, and then 2500 pages every 30 days thereafter.

For the judge's order:
http://www.eff.org/flag/nsl/bates_order.pdf

For EFF's supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

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

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June 14, 2007

More Questions About Misuse of Authority at the Justice Department

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged a judge Thursday to force the FBI to finally release records about its now documented abuse of National Security Letters (NSLs) to collect Americans' personal information. EFF's filing comes as an internal FBI audit revealed that the bureau's misuse of surveillance authority has been more widespread then previously thought.

EFF sued the FBI in April after the agency failed to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs. EFF's FOIA request came after an initial Justice Department report indicated extensive abuse of the powerful NSL tools. Now, the Washington Post has reported that a new audit identified more than 1000 potential violations made while agents collected data about domestic phone calls, emails and financial transactions of thousands of Americans. FBI officials told Post that there have likely been several thousand instances of abuse in total. This week, the FBI also released new guidelines for the use of NSLs, but that won't fix the core problem -- a law that's ripe for abuse.

"Under the PATRIOT Act, the Bureau can use NSLs to get private records about anybody without any court approval, as long as it claims the information could be relevant to a terrorism or espionage investigation," said Marcia Hofmann, EFF Staff Attorney. "We have heard again and again about how the FBI has misused this new power to overreach into the lives of ordinary Americans. It's time for someone other than the Justice Department to assess the documented problems, and long past time for Congress to fix the mistake it made in the PATRIOT Act, including repealing the expanded NSL powers it gave the FBI."

EFF's supplemental memo to the court, filed Thursday, asked the judge to rule on a request for a preliminary injunction that would force the FBI to begin releasing information about NSL abuse to the public immediately.

For EFF's supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html


Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

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

Related Issues:
June 12, 2007

More Bogus Copyright Claims in Uri Geller's Frivolous Lawsuit

San Francisco - The Electronic Frontier Foundation (EFF) urged a judge Monday to dismiss a frivolous lawsuit filed by Uri Geller -- the "paranormalist" famous for seemingly bending spoons with his mind -- because of its blatant attempt to silence critic Brian Sapient with bogus copyright claims.

Geller's quest to shut down Sapient's criticism started when Sapient uploaded video to YouTube challenging Geller's assertions about his mental powers. The 14-minute segment came from a NOVA television program, but Geller and his corporation Explorologist Ltd. claimed the video infringed its own copyrights and had the video removed from YouTube. Sapient filed a counter-notice under the Digital Millennium Copyright Act (DMCA), had the video restored to YouTube, and sued Geller for misrepresentation.

As Sapient was challenging Geller's meritless claims, Explorologist filed a separate lawsuit against Sapient. The suit includes more bogus charges, with many of them based on the assertion that Explorologist has the copyright to eight seconds of the introductory footage in the NOVA video. EFF's motion to dismiss the case points out the numerous holes in this claim, arguing that even if it were true, eight seconds is a classic fair use -- especially given the critical purposes of the use. The brief also argues that Section 230 of the Communications Decency Act protects Sapient from infringement claims and other charges in Explorologist's complaint, immunizing Sapient as the publisher of third-party content.

"Copyright law is meant to protect creative artists, not hypersensitive public figures who don't like criticism," said EFF Senior Staff Attorney Jason Schultz. "The First Amendment does not allow Geller or his corporation to silence legitimate discussion of his abilities."

Meanwhile, Sapient's lawsuit against Geller is still pending before the Northern District of California. The suit asks for damages due to Geller's DMCA violation, a declaratory judgment that the NOVA video does not infringe Geller's copyrights, and Geller to be restrained from bringing any further legal action against Sapient in connection to the clip.

For the full motion to dismiss Geller's suit:
http://eff.org/legal/cases/sapient_v_geller/sapient_motiontodismiss.pdf

For more on Sapient v. Geller:
http://eff.org/legal/cases/sapient_v_geller

Contacts:

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

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

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June 12, 2007

Whistleblower Declaration and Other Key Documents Released to Public

San Francisco - More documents detailing secret government surveillance of AT&ampT's Internet traffic have been released to the public as part of the Electronic Frontier Foundation's (EFF's) class-action lawsuit against the telecom giant.

Some of the unsealed information was previously made public in redacted form. But after negotiations with AT&ampT, EFF has filed newly unredacted documents describing a secret, secure room in AT&ampT's facilities that gave the National Security Agency (NSA) direct access to customers' emails and other Internet communications. These include several internal AT&ampT documents that have long been available on media websites, EFF's legal arguments to the 9th Circuit, and the full declarations of whistleblower Mark Klein and of J. Scott Marcus, the former Senior Advisor for Internet Technology to the Federal Communications Commission, who bolsters and explains EFF's evidence.

"This is critical evidence supporting our claim that AT&ampT is cooperating with the NSA in the illegal dragnet surveillance of millions of ordinary Americans," said EFF Legal Director Cindy Cohn. "This surveillance is under debate in Congress and across the nation, as well as in the courts. The public has a right to see these important documents, the declarations from our witnesses, and our legal arguments, and we are very pleased to release them."

EFF filed the class-action suit against AT&ampT last year, accusing the telecom giant of illegally assisting in the NSA's spying on millions of ordinary Americans. The lower court allowed the case to proceed and the government has now asked the 9th U.S. Circuit Court of Appeals to dismiss the case, claiming that the lawsuit could expose state secrets. EFF's newly released brief in response outlines how the case should go forward respecting both liberty and security.

"The District Court rejected the government's attempt to sweep this case under the rug," said EFF Senior Staff Attorney Kurt Opsahl. "This country has a long tradition of open court proceedings, and we're pleased that as we present our case to the Court of Appeals, the millions of affected AT&ampT customers will be able to see our arguments and evidence and judge for themselves."

Oral arguments in the 9th Circuit appeal are set for the week of August 13.

For the unredacted Klein declaration:
http://eff.org/legal/cases/att/SER_klein_decl.pdf

For the internal documents:
http://eff.org/legal/cases/att/SER_klein_exhibits.pdf

For the unredacted Marcus declaration:
http://eff.org/legal/cases/att/SER_marcus_decl.pdf

For EFF's 9th Circuit brief:
http://eff.org/legal/cases/att/9thanswerbrief.pdf

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

Contacts:

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

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

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June 11, 2007

EFF Weighs in On Behalf of Innovators in Remote Computing

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups, trade associations, and businesses urged a federal appeals court Friday to overturn a damaging lower court ruling that puts companies that provide remote computing technologies at risk of copyright infringement liability.

The case involves a remote "digital video recorder" (DVR) developed by Cablevision -- the fifth largest cable television provider in the U.S. -- that allows customers to record programs provided through their Cablevision subscription for later viewing, much like many other DVR offerings. However, instead of storing the recorded programs using a DVR at home, Cablevision's remote DVR stores the recorded programs on equipment located on Cablevision's premises. Twentieth Century Fox, the Cartoon Network, and other television networks filed suit, and a district court in New York ruled against Cablevision, reasoning that Cablevision, not its customers, was making the copies. That ruling has now been appealed by Cablevision.

"The Supreme Court has already ruled that consumers have a fair use right to time-shift TV shows," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "It should not make a difference whether the copies are stored inside their set-top boxes or back at Cablevision headquarters."

In an amicus brief filed the with 2nd U.S. Circuit Court of Appeals Friday, EFF and the coalition argued not only that the lower court ruling is at odds with copyright law, but also that it poses a threat to innovation in remote computing services more generally. Consumers often have remote access to digital services that provide better performance more conveniently than devices they could buy for their home, but this decision opens the door to more lawsuits that could shut these services down.

"Both consumers and the enterprise are increasingly enjoying the benefits of remote computing capabilities, relying on services like Amazon's EC2, Google Apps, and Apple's .Mac, for processing power, applications, and data hosting," said von Lohmann. "It can't be the case that these companies are automatically liable for every copyright infringement committed by every user, whether they know about it or not."

For the full amicus brief filed in the case:
http://eff.org/legal/cases/studios_v_cablevision/CDF_et_al_amicus.pdf

For more on protecting technology innovations:
http://www.eff.org/innovate

Contact:

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

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