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EFF Press Release Archives

Press Releases: September 2008

September 26, 2008

Copyright Law Should Not Chill Development of Emerging Technologies

New York - The Electronic Frontier Foundation (EFF) and a coalition of groups representing both consumers and industry filed an amicus brief today in the first major lawsuit since MGM v. Grokster against a creator of peer-to-peer (P2P) filesharing software, warning that the case has profound implications for the development of new software and hardware.

In Arista v. Lime Wire, the recording industry plaintiffs seek to hold Lime Wire liable for acts of copyright infringement by users of its software. In its amicus brief, EFF urges the court to apply the law in a manner that will not chill technological innovation and to reaffirm that developers should not be held liable for copyright infringement based on misuses of their technology that they did not actively promote.

“It’s crucial that courts continue to protect emerging technologies that are capable of substantial lawful uses, even if they also can be used in less acceptable ways,” said EFF Senior Intellectual Property Attorney Fred von Lohmann. “The technology industry, consumers, and copyright owners have all benefited from innovations like the photocopier, the CD burner, the iPod, and the personal computer, notwithstanding the fact that all of them can be misused.”

The Lime Wire lawsuit is the latest in a series of lawsuits filed by the recording industry against peer-to-peer filesharing software companies, including past lawsuits against Grokster, Aimster, and Napster.

“Ordinary tasks like offering technical support shouldn’t lead to ruinous copyright liability just because it turns out that some customers are applying a multi-use tool to unlawful purposes,” said EFF Senior Staff Attorney Michael Kwun. “For example, Adobe shouldn’t have to quiz me to ensure I have the rights to the photo I’m editing before it answers my questions about how to use Photoshop.”

Joining EFF on the brief are the Center for Democracy and Technology, the Computer and Communications Industry Association, the Consumer Electronics Association, the Home Recording Rights Coalition, the Information Technology Association of America, Public Knowledge, the Special Libraries Association, and the U.S. Internet Industry Association.

For the full amicus brief:
http://www.eff.org/files/filenode/Arista_v_Lime_Wi/20081926_EFFAmiciBrief.pdf

Contacts:

Michael Kwun
Senior Intellectual Property Staff Attorney
Electronic Frontier Foundation
michael@eff.org

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

September 23, 2008

Quiet Changes in Policy Allow For Searches Without Suspicion of Wrongdoing

San Francisco - Recently obtained documents show that last year the Department of Homeland Security quietly reversed a two-decades-old policy that restricted customs agents from reading and copying the personal papers carried by travelers, including U.S. citizens. The documents were made public today by the Asian Law Caucus (ALC) and Electronic Frontier Foundation (EFF), which sued the government under the Freedom of Information Act (FOIA) to obtain policies governing the searches and questioning of travelers at the nation’s borders.

The documents show that in 2007, Customs and Border Protection (CBP) loosened restrictions on the examination of travelers' documents and papers that had existed since 1986. While CBP agents could previously read travelers' documents only if they had "reasonable suspicion" that the documents would reveal violations of agency rules, in 2007 officers were given the power to "review and analyze" papers without any individualized suspicion. Furthermore, whereas CBP agents could previously copy materials only where they had "probable cause" to believe a law had been violated, in 2007 they were empowered to copy travelers' papers without suspicion of wrongdoing and keep them for a "reasonable period of time" to conduct a border search. The new rules applied to physical documents as well as files on laptop computers, cell phones, and other electronic devices.

In July 2008, the Department of Homeland Security made public a new policy on examining travelers' papers and electronic devices that finalized many of the changes first implemented in 2007. The agency did not disclose, however, how much the new policy deviated from rules that had been in place since 1986. The FOIA documents from ALC's and EFF's suit included the original policy, which had been adopted after a group of U.S. citizens challenged the practices of the 1980s as violating First Amendment rights.

"For more than 20 years, the government implicitly recognized that reading and copying the letters, diaries, and personal papers of travelers without reason would chill Americans' rights to free speech and free expression," said Shirin Sinnar, ALC staff attorney. "But now customs officials can probe into the thoughts and lives of ordinary travelers without any suspicion at all."

In February 2008, ALC and EFF sued the Department of Homeland Security for failing to disclose its policies on searching and questioning travelers at U.S. borders. ALC, a San Francisco-based civil rights organization, received more than two dozen complaints since last year from U.S. travelers, mostly of Muslim, South Asian, or Middle Eastern origin, who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, these individuals said that CBP agents examined their books, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. The documents from the FOIA request show that CBP's wide latitude to collect this data attracted significant attention from other law enforcement agencies that sought to access it.

"Your laptop computer likely contains a massive amount of private information such as personal emails, financial data or confidential business records," said EFF Staff Attorney Marcia Hofmann. "The Department of Homeland Security has given its agents increasingly broad authority to search, copy, and store that information. Congress needs to step in now to stop these invasive practices and protect travelers' privacy."

The newly released documents, which total 661 pages, also reveal that:

* In 2004, CBP adopted a directive on responding to "potential terrorists" seeking to enter the United States. The directive, which was revised in 2006, called for intensive questioning and document review of individuals who were flagged as "known or suspected" terrorists.

* CBP appears to have no policy constraining agents from questioning travelers on their religious practices or political views, in spite of the fact that many travelers have complained about being grilled on such First Amendment-protected activities.

* According to the Tucson, Arizona, field office of CBP, a database developed within that office to gather and disseminate intelligence on possible terrorists was to serve as a model for a national database.

ALC and EFF plan to challenge the government's withholding of portions of many of these documents in federal district court this fall.

For the complete set of FOIA documents and more detailed analysis:
http://www.eff.org/cases/foia-litigation-border-searches.

To interview an individual questioned or searched by CBP:
Contact Shirin Sinnar at 415-848-7714 or shirins@asianlawcaucus.org

Contacts:

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

Shirin Sinnar
Staff Attorney
Asian Law Caucus
shirins@asianlawcaucus.org

Related Issues:
September 19, 2008

EFF Urges Judge to Dismiss Baseless Lawsuit

San Francisco - The Electronic Frontier Foundation (EFF) and Public Citizen, joined by Public Knowledge and Citizen Media Law Project, urged a federal judge in Chicago Friday to dismiss a law firm's baseless trademark claims, which were apparently aimed at quashing speech by an online news site.

The firm of Jones Day filed the lawsuit against the real estate news site Blockshopper.com, alleging that using its trademark "Jones Day" to refer to the firm in a headline and linking to the Jones Day website could lead to confusion over the sponsorship of the site. In its amicus brief, EFF and Public Citizen argue that these routine references to Jones Day are well-established fair uses of a trademark and clearly protected by the First Amendment.

"The claims are absurd--Blockshopper was simply reporting accurately on the activities of two lawyers who happen to be Jones Day employees," said EFF Staff Attorney Corynne McSherry. "That reporting is protected under trademark and free speech law, and Jones Day should know that. If Jones Day had its way, any trademark holder could use trademark claims to restrict news and commentary related to its business and any of its employees."

"Jones Day alleges that the public could be confused by the references to its name and links, but Internet users know that websites generally link to other websites, independent of any official affiliation," said Paul Alan Levy, attorney with Public Citizen. "That's why it's called the World Wide Web."

This amicus brief is part of EFF's No Downtime for Free Speech Campaign, which works to protect online expression in the face of baseless intellectual property claims. Robert Libman of Barnhill, Miner & Galland assisted in filing the brief.

For the full amicus brief:
http://www.eff.org/files/filenode/JDvBlockshopper/JonesDayAmicusBrief.pdf

Contacts:

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

Paul Alan Levy
Attorney
Public Citizen
plevy@citizen.org

Related Issues:
September 18, 2008

New Legal Challenge to Unconstitutional Domestic Spying

The Electronic Frontier Foundation (EFF) filed a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance.

The lawsuit, Jewel v. NSA, is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

That same evidence is central to Hepting v. AT&T, a class-action lawsuit filed by EFF in 2006 to stop the telecom giant's participation in the illegal surveillance program. Earlier this year, Congress passed a law attempting to derail that case by unconstitutionally granting immunity to AT&T and other companies that took part in the dragnet. Hepting v. AT&T is now stalled in federal court while EFF argues with the government over whether the immunity is constitutional and applies in that case -- litigation that is likely to continue well into 2009.

"In addition to suing AT&T, we've now opened a second front in the battle to stop the NSA's illegal surveillance of millions of ordinary Americans and hold personally responsible those who authorized or participated in the spying program," said Senior Staff Attorney Kevin Bankston. "For years, the NSA has been engaged in a massive and massively illegal fishing expedition through AT&T's domestic networks and databases of customer records. Our goal in this new case against the government, as in our case against AT&T, is to dismantle this dragnet surveillance program as soon as possible."

In addition to suing the government agencies involved in the domestic dragnet, the lawsuit also targets the individuals responsible for creating, authorizing, and implementing the illegal program, including President Bush and Vice President Cheney.

"Demanding personal accountability from President Bush, Vice President Cheney and others responsible for the NSA's dragnet surveillance of ordinary Americans' communications is the best way to guarantee that such blatantly illegal spying will not be authorized in the future," said EFF Legal Director Cindy Cohn. "Our lawsuit today should sound a clear warning to future occupants of the White House: if you break the law and violate Americans' privacy, there will be consequences."

For the full complaint in Jewel v. NSA:
http://www.eff.org/files/filenode/jewel/jewel.complaint.pdf

For more on the case:
http://www.eff.org/cases/jewel

Related Issues:
September 18, 2008

Public Kept in the Dark About Serious Civil Liberties and Privacy Issues

Washington, D.C. - The Electronic Frontier Foundation (EFF) and Public Knowledge have filed suit against the Office of the United States Trade Representative (USTR), demanding information about a secret intellectual property enforcement treaty that the government has put on a fast track to completion.

The United States, Canada, the European Community, Switzerland, Japan, the Republic of Korea, Singapore, Australia, New Zealand, Mexico, Jordan, Morocco, and the United Arab Emirates are currently negotiating the Anti-Counterfeiting Trade Agreement (ACTA). The full text of the treaty remains secret, but a document leaked to the public shows that ACTA could include criminal measures, increased border search powers, and encouragement for Internet service providers to cooperate with copyright holders. Despite the significant impact ACTA could have on consumers and the lack of official information available to the public, treaty proponents want a deal signed by the end of the year.

"ACTA raises serious concerns for citizens' civil liberties and privacy rights," said EFF International Policy Director Gwen Hinze. "This treaty could potentially change the way your computer is searched at the border or spark new invasive monitoring from your ISP. People need to see the full text of ACTA now, so that they can evaluate its impact on their lives and express that opinion to their political leaders. Instead, the USTR is keeping us in the dark while talks go on behind closed doors."

Because of the questions raised by ACTA, EFF and Public Knowledge filed a request under the Freedom of Information Act (FOIA) in June for records on the treaty and the negotiations surrounding the deal. EFF and Public Knowledge later clarified the scope of their request in July in response to concerns raised by the USTR. But the USTR still failed to provide any relevant documents.

"The lack of transparency in this process is incredibly alarming," said Public Knowledge Staff Attorney Sherwin Siy. "Whatever form ACTA eventually takes, we can be sure it will be used to justify further international agreements and laws. The agreement text needs to be made public to ensure that it doesn't encroach upon the rights of users, consumers, and citizens to access knowledge, information, and content."

Earlier this week, EFF and Public Knowledge joined more than 100 public interest organizations from around the world calling for answers about ACTA. The coalition is asking for treaty negotiators to immediately publish the draft text of the agreement, as well as pre-draft discussion papers.

For the full complaint:
http://www.eff.org/files/filenode/EFF_PK_v_USTR/USTRcomplaint.pdf

For more on ACTA:
http://www.eff.org/issues/acta/

Contacts:

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

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

September 11, 2008

Government Must Get a Warrant Before Seizing Cell Phone Location Records

San Francisco - In an unprecedented victory for cell phone privacy, a federal court has affirmed that cell phone location information stored by a mobile phone provider is protected by the Fourth Amendment and that the government must obtain a warrant based on probable cause before seizing such records.

The Department of Justice (DOJ) had asked the federal court in the Western District of Pennsylvania to overturn a magistrate judge's decision requiring the government to obtain a warrant for stored location data, arguing that the government could obtain such information without probable cause. The Electronic Frontier Foundation (EFF), at the invitation of the court, filed a friend-of-the-court brief opposing the government's appeal and arguing that the magistrate was correct to require a warrant. Wednesday, the court agreed with EFF and issued an order affirming the magistrate's decision.

EFF has successfully argued before other courts that the government needs a warrant before it can track a cell phone's location in real-time. However, this is the first known case where a court has found that the government must also obtain a warrant when obtaining stored records about a cell phone's location from the mobile phone provider.

"Cell phone providers store an increasing amount of sensitive data about where you are and when, based on which cell towers your phone uses when making a call. Until now, the government has routinely seized these records without search warrants," said EFF Senior Staff Attorney Kevin Bankston. "This landmark ruling is hopefully only the first of many. Just as magistrates across the country have begun denying government requests to track cell phones in real-time without warrants, based on arguments first made by EFF, so too do we hope this decision will spark new scrutiny of the government's unconstitutional seizure of stored cell phone location records."

The American Civil Liberties Union (ACLU), the ACLU Foundation of Pennsylvania, and the Center for Democracy and Technology (CDT) joined EFF's brief.

For Wednesday's decision:
http://www.eff.org/files/filenode/celltracking/lenihanorder.pdf

For the full amicus brief in the cell phone records case:
http://www.eff.org/files/filenode/celltracking/LenihanAmicus.pdf

For the magistrate's order:
http://www.eff.org/files/filenode/celltracking/criminalapplicationorder_finalopinion.pdf

For more on cell phone tracking:
http://www.eff.org/issues/cell-tracking

Contacts:

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

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

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