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EFF Press Release Archives

Press Releases: March 2008

March 20, 2008

Secrecy Surrounding Demands for Private Records Enables Widespread Misuse

San Francisco - The Electronic Frontier Foundation (EFF) along with the National Security Archive urged a federal appeals court Wednesday to strike down the National Security Letter (NSL) provision of the Electronic Communications Privacy Act.

The federal surveillance law, as expanded by the PATRIOT Act, allows the FBI to use NSLs to get private records about people's communications without any court approval, as long as it claims the information could be relevant to a terrorism or espionage investigation. The FBI also has broad discretion to place recipients of NSLs under indefinite gag orders, barring them from saying anything about the demands.

A federal judge has already found that the NSL statute is unconstitutional, but the government appealed the ruling. In an amicus brief filed Wednesday, EFF and the National Security Archive argue that the excessive secrecy surrounding the use of NSLs undermines government accountability and enables widespread misuse of authority.

"The Justice Department's internal watchdog has documented the FBI's systematic, Bureau-wide misuse of NSLs," said EFF Staff Attorney Marcia Hofmann. "NSL gag orders aren't just an unconstitutional restriction on free speech -- they also allow problems like these to fester and grow."

This week is national Sunshine Week, a non-partisan initiative to celebrate the principles of open government. Both EFF and the National Security Archive work to uncover information on government matters of public interest, as openness proves to be a check against government abuses.

"The FBI's ability to issue gag orders without meaningful judicial oversight means there is no check on overreaching by the FBI," said National Security Archive Staff Counsel Kristin Adair. "This kind of secrecy does not make us safer. It simply allows the government to cover up abuses and mistakes."

For the full amicus brief: http://www.eff.org/files/filenode/doe_v_ashcroft/doevmukaseyamicus031908.pdf

For more on Sunshine Week:
http://www.eff.org/sunshine

For more on EFF's work on NSL misuse: http://www.eff.org/issues/foia/07656JDB

Contacts:

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

Kristin Adair
Staff Attorney
National Security Archive

March 14, 2008

Bill Would Allow Spying Cases to Proceed Fairly and Securely

Washington, D.C. - This morning the House of Representatives passed a compromise surveillance bill that does not include retroactive immunity for phone companies alleged to have assisted in the NSA's warrantless wiretapping program. The bill would allow lawsuits like the Electronic Frontier Foundation's case against AT&T to proceed while providing specific security procedures allowing the telecom giants to defend themselves in court.

The House bill succeeded 213 to 197 despite the president's threat to veto any bill that does not include immunity.

"We applaud the House for refusing to grant amnesty to lawbreaking telecoms, and for passing a bill that would allow our lawsuit against AT&T to proceed fairly and securely," said Electronic Frontier Foundation (EFF) Senior Staff Attorney Kevin Bankston. "Amnesty proponents have been claiming on the Hill for months that phone companies like AT&T had a good faith belief that the NSA program was legal. Under this bill, the companies could do what they should have been able to do all along: tell that story to a judge."

The Senate is expected to consider the House bill when it returns from recess on Monday, March 31. House and Senate staff are expected to spend much of the break negotiating over differences between the new House bill and a previous Senate bill that includes immunity provisions.

"This newly-passed House bill represents a true compromise on the amnesty issue: customers whose privacy was violated would get their day in court, while the companies would be allowed to defend themselves despite the Administration's broad demands for secrecy," said EFF Legal Director Cindy Cohn. "We look forward to assisting the Senate in its consideration of this compromise solution, which EFF believes is the only reasonable response to the White House's attempt to evade court review of its illegal spying program and the phone companies' collaboration in it."

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance. The Hepting case is the leading case aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government.

Contacts:

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

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

March 12, 2008

Fifth Successful Result for Patent Busting Project

San Francisco - Electronic Frontier Foundation (EFF) has won reexamination of a bogus online gaming patent from the U.S. Patent and Trademark Office (PTO) -- the fifth successful reexamination request from EFF's Patent Busting Project.

Sheldon F. Goldberg was awarded the illegitimate patent for online gaming systems that use tournament-style play, advertising, and real-time updates of ladder-rankings in multi-player games. Goldberg has used this bogus patent to coerce licensing fees from numerous small businesses.

In the reexamination request, EFF along with Paul Grewal and Brad Waugh of Day Casebeer Madrid & Batchelder show that the technology covered by the Goldberg patent had been widely disseminated in the public domain for years before Goldberg made his claim. The Patent Office took quick action on the request, recognizing this substantial new question of patentability less than a month after the request was filed.

"The patent process was designed to encourage invention, investment, and disclosure and was not meant to be used as a tool to threaten legitimate businesses," said EFF Intellectual Property Fellow Emily Berger. "Reexamination proceedings like these are essential in protecting the public from patents that should never have been granted in the first place."

This reexamination request is part of EFF's Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. So far, the project has killed one patent covering a system and method of creating digital recordings of live performances. Four more reexaminations, including this one, are under review by the USPTO due to the Patent Busting Project's efforts.

"Undeserved patents cause significant harm to innovation and competition in the information age," said Paul Grewal. "We are pleased that the PTO recognized the substantial questions of patentability raised in EFF's request and look forward to the PTO's ultimate decision on the merits."

Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School also carried out extensive research for the reexamination request, helping locate much of the critical evidence of prior use of technologies covered by Goldberg's patent. Members of the Netrek online gaming community also provided technical analysis and legal declarations that figured prominently in the PTO's decision to grant EFF's reexamination request.

For the full reexamination order:
http://w2.eff.org/patent/wanted/sheldon/reexam/goldberg-reexam-granted.PDF

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

Contacts:

Emily Berger
Intellectual Property Fellow
Electronic Frontier Foundation
emily@eff.org

Paul Grewal
Partner
Day Casebeer Madrid & Batchelder
pgrewal@daycasebeer.com

Related Issues:
March 11, 2008

Supports Provision Allowing Cases to Proceed Fairly and Securely

San Francisco - Today the leadership of the House of Representatives circulated a draft surveillance bill rejecting the president's demand that Congress immunize telecoms that illegally participated in the NSA's warrantless wiretapping program.

Rather than granting immunity, the bill would respond to the phone companies' complaints that they cannot defend themselves by clarifying that they can present evidence about the wiretapping to the court under appropriate security procedures, even when the Executive Branch claims that such evidence is barred by the state secrets privilege.

"We applaud the House leadership for taking a courageous stand against the president and refusing to grant amnesty to lawbreaking telecoms. The House bill would represent a true compromise on the amnesty issue: customers whose privacy was violated would get their day in court, while the companies would be allowed to defend themselves despite the Administration's broad demands for secrecy," said EFF Senior Staff Attorney Kevin Bankston. "Immunity proponents have been claiming on the Hill for months that these companies had a good faith belief that the NSA program was legal. Under this bill, the companies could do what they should have been able to do all along: tell that story to a judge."

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance. The Hepting case is the leading case aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government.

For the full draft of the bill:
http://www.eff.org/files/filenode/nsaspying/H3773AMD_002_xml.pdf

For more on NSA spying:
http://www.eff.org/issues/nsa-spying

Contact:

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

March 6, 2008

Trio of Commerce Chairmen Call for Further Investigation Based on Latest Spying Allegations

Washington D.C. - Three powerful House Commerce Committee Chairmen strongly urged their colleagues Thursday to defer acting on requests for retroactive immunity and to demand more information from the White House and the telecommunications companies in the wake of disclosures by another whistleblower that the government apparently has been granted an open gateway to wireless communications by a major telecommunications company.

Babak Pasdar, a computer security consultant, has gone public about his discovery of a mysterious "Quantico Circuit" while working for an unnamed major wireless carrier. Pasdar believes that this circuit gives the U.S. government direct, unfettered access to customers voice calls and data packets. These claims echo the disclosures from retired AT&T technician Mark Klein, who has described a "secret room" in an AT&T facility.

The White House is putting heavy pressure on lawmakers to grant the telecoms immunity from lawsuits over the spying as part of Foreign Intelligence Surveillance Act (FISA) legislation pending in Congress. But in today's letter -- written by John Dingell, Chairman of the House Committee on Energy and Commerce; Ed Markey, Chairman of the House Subcommittee on Telecommunications and the Internet; and Bart Stupak, Chairman of the Subcommittee on Oversight and Investigations -- the congressmen argue lawmakers must not "vote in the dark" on the immunity issue when "profound privacy and security risks" are involved.

"When you put Mr. Pasdar's information together with that of AT&T whistleblower Mark Klein, there is troubling evidence of telecom misconduct in massive domestic surveillance of ordinary Americans," said Cindy Cohn, Legal Director of the Electronic Frontier Foundation (EFF). "Congress needs to have hearings and get some answers about whether American telecommunications companies are helping the government to illegally spy on millions of us. Retroactive immunity for telecom companies now ought to be off the table in the ongoing FISA debate."

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government.

For the full letter:
http://www.eff.org/files/newwhistleblower.pdf

For more on the telecoms' role in warrantless spying:
http://www.eff.org/issues/nsa-spying

Contacts:

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

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

Related Issues:
March 3, 2008

Phoenix File-Sharing Suit Based on Bogus "Making Available" Argument

Phoenix, AZ - On Wednesday, March 5 at 2 p.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in Phoenix to block the recording industry’s effort to sue two Arizona residents for simply having music files in a “shared” folder on their computer.

The Recording Industry Association of America (RIAA) is seeking thousands of dollars in damages from the defendants in the case, Pamela and Jeffery Howell, for alleged unauthorized distribution of copyrighted digital music. However, instead of proving that the Howells actually distributed music files, the RIAA claims only that they had songs in the "shared" folder of peer-to-peer file-sharing software Kazaa -- without any proof that anyone other than their own investigators actually downloaded the songs from them.

EFF's Senior Staff Attorney Fred von Lohmann will argue at Wednesday's hearing that the RIAA cannot take this shortcut in its lawsuit campaign.

"This amounts to suing someone for attempted copyright infringement -- something the Copyright Act simply does not allow," said EFF Senior Staff Attorney Fred von Lohmann. "If the RIAA wants to keep bringing these suits and collecting big settlements, then they have to follow the law and prove their case. It's not enough to say the law could have been broken. The RIAA must prove it actually was broken."

WHAT:
Atlantic Records, et al. v. Howell

WHEN:
Wednesday, March 5, 2008
2pm

WHERE:
U.S. District Court
401 West Washington Street, Courtroom #504
Phoenix, AZ 85003-2118

For more about the case:
http://www.eff.org/deeplinks/2008/01/eff-files-brief-atlantic-v-howell-resisting-riaas-attempted-distribution-theory

For EFF's amicus brief:
http://www.eff.org/files/filenode/atlantic_v_howel/EFF_amicus_atlantic_howell.pdf

Contact:

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

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