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EFF Press Release Archives

Press Releases: June 2009

June 24, 2009

Lawsuit Seeks Disclosure of Guidelines Governing Investigations of Americans

Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit against the Department of Justice today, demanding the public release of the surveillance guidelines that govern investigations of Americans by the Federal Bureau of Investigation (FBI).

The FBI's Domestic Investigative Operational Guidelines went into effect in December of 2008 and detail the Bureau's procedures and standards for implementing the Attorney General's Guidelines on approved surveillance strategies.

"The Attorney General's Guidelines are troubling, allowing for open investigative 'assessments' of any American without factual basis or reasonable suspicion," said EFF Senior Counsel David Sobel. "The withholding of the Operational Guidelines compounds our concerns. Americans have the right to know the basic surveillance policies used by federal investigators and how their privacy is -- or is not -- being protected."

The FBI's general counsel has acknowledged that "the expansion of techniques available [to the Bureau] has raised privacy and civil liberties concerns." Investigations can include the electronic collection of information from online sources and computer databases, as well as the use of grand jury subpoenas to obtain telephone and email subscriber information. Other recent policy changes allow the FBI to engage in free-ranging investigation of Internet sites, libraries, and religious institutions.

EFF's lawsuit comes after the Department of Justice failed to respond to a Freedom of Information Act (FOIA) request for a complete copy of the Domestic Investigative Operational Guidelines. The suit demands the immediate release of the guidelines, as they are being withheld in violation of federal law.

"These policies have been in effect for more than six months and could have great impact on ordinary Americans' lives," said Sobel. "The FBI must follow the law and release these guidelines to the public."

For the full complaint:
http://www.eff.org/files/filenode/FBI_guidelines/fbi_diog_complaint_final.pdf

Contact:

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

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June 17, 2009

Government's 'National Security' Claims Keep IP Treaty Under Wraps

Washington, D.C. - The Obama Administration's decision to support Bush-era concealment policies has forced the Electronic Frontier Foundation (EFF) and Public Knowledge (PK) to drop their lawsuit about the proposed Anti-Counterfeiting Trade Agreement (ACTA). EFF and PK had been seeking important documents about the secret intellectual property enforcement treaty that has broad implications for global privacy and innovation.

Federal judges have very little discretion to overrule Executive Branch decisions to classify information on "national security" grounds, and the Obama Administration has recently informed the court that it intends to defend the classification claims originally made by the Bush Administration.

"We're extremely disappointed that we have to end our lawsuit, but there is no point in continuing it if we're not going to obtain information before ACTA is finalized," said EFF International Policy Director Gwen Hinze. "There's a fundamental fairness issue at stake here. It's now clear that the negotiating texts and background documents for this trade agreement have been made available to representatives of major media copyright owners and pharmaceutical companies on the Industry Trade Advisory Committee on Intellectual Property. Yet private citizens -- who stand to be greatly affected by ACTA -- have had to rely on unofficial leaks for any substantive information about the treaty and have had no opportunity for meaningful input into the negotiation process. This can hardly be described as transparent or balanced policy-making."

"Even though we have reluctantly dropped this lawsuit, we will continue to press the U.S. Trade Representative and the Obama Administration on the ACTA issues," said Public Knowledge Deputy Legal Director Sherwin Siy. "The issues are too far-reaching and too important to allow this important agreement to be negotiated behind closed doors," he added.

Very little is known about ACTA, currently under negotiation between the U.S. and more than a dozen other countries, other than that it is not limited to anti-counterfeiting measures. Leaked documents indicate that it could establish far-reaching customs regulations governing searches over personal computers and iPods. Multi-national IP corporations have publicly requested mandatory filtering of Internet communications for potentially copyright-infringing material, as well as the adoption of "Three Strikes" policies requiring the termination of Internet access after repeat allegations of copyright infringement, like the legislation recently invalidated in France. Last year, more than 100 public interest organizations around the world called on ACTA country negotiators to make the draft text available for public comment.

EFF and Public Knowledge first filed suit against the Office of the U.S. Trade Representative in September of 2008 demanding that background documents on ACTA be disclosed under the Freedom of Information Act (FOIA). Rather than pursuing a lawsuit with little chance of forcing the disclosure of key ACTA documents, EFF and Public Knowledge will devote their efforts to advocating for consumer representation on the U.S. Industry Trade Advisory Committee on IP, the creation of a civil society trade advisory committee, and greater government transparency about what ACTA means for citizens.

For more on this case:
http://www.eff.org/cases/eff-and-public-knowledge-v-ustr

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

Contacts:

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

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

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

June 16, 2009

Patent Busting Project Wins Another Victory for Developers and Innovators

San Francisco - The U.S. Patent and Trademark Office has announced that it will revoke an illegitimate patent on Internet subdomains as a result of the Electronic Frontier Foundation's (EFF) Patent Busting Project campaign.

U.S. Patent No. 6,687,746, now held by Hoshiko, LLC, claimed to cover the method of automatically assigning Internet subdomains, like "action.eff.org" for the parent domain "eff.org." Previous patent owner Ideaflood used this bogus patent to demand payment from website hosting companies offering personalized domains, such as LiveJournal, a social networking site where each of its three million users may have their own subdomain.

In the original reexamination request, EFF and Rick Mc Leod of Klarquist Sparkman, LLP, showed that the method Ideaflood claimed to have invented was well known before the patent was issued. In fact, website developers were having public discussions about how to create these virtual subdomains on an Apache developer mailing list and on Usenet more than a year before Ideaflood filed its patent application. The open source community's public record of the technology development provided the linchpin to EFF's patent challenge.

"In the reexam, the Patent Office systematically rejected each of Hoshiko's arguments as well as the patent claims. We were fortunate to have the Internet Archive and Usenet Archive as proof of the prior work by the open source community," said Rick Mc Leod, who drafted the EFF petition.

"This patent was particularly troubling because the company tried to remove the work of open source developers from the public domain and use it to threaten others," said EFF Legal Director Cindy Cohn. "Ironically, the transparent open source development process gave us the tools to bust the patent!"

The challenge to the Ideaflood patent is part of EFF's Patent Busting Project, which combats the chilling effects that bad patents have on public and consumer interests. This marks the second patent completely "busted" by the project, which has also resulted in the narrowing of another patent and the ongoing reexaminations of three more. Hoshiko can appeal the decision.

For the notice from the Patent Office:
http://w2.eff.org/patent/wanted/ideaflood/6687746_final_rejection.pdf

For more on EFF's Patent Busting Project:
http://www.eff.org/patent

Contacts:

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

Rick Mc Leod
Klarquist Sparkman, LLP
rick.mcleod@klarquist.com

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June 11, 2009

Urges Court to Rule Email Privacy Is Constitutionally Protected

Cincinnati - The Electronic Frontier Foundation (EFF) and other civil liberties groups filed an amicus brief in Warshak v. United States urging the 6th U.S. Circuit Court of Appeals Wednesday to hold that the government's seizure of email without a warrant violated the Fourth Amendment and federal privacy statutes, as well as the Justice Department's own surveillance manual.

During its criminal investigation, the Department of Justice illegally ordered defendant Stephen Warshak's email provider to prospectively "preserve" copies of his future emails, which the government later obtained using a subpoena and a non-probable cause court order. The government accomplished this "back door wiretap" by misusing the Stored Communications Act (SCA), which is only supposed to be used for obtaining emails already in storage with a provider.

In Wednesday's filing, EFF argues that the government's seizure violated federal privacy laws and Warshak's Fourth Amendment expectation of privacy in his email. As a result, the illegally seized emails should have been suppressed by the district court where Warshak was tried. All told, the government acquired over 27,000 emails spanning over six months from Warshak's email provider, all without probable cause.

"The Justice Department not only violated the Fourth Amendment and federal privacy statutes but its own surveillance manual when it conducted this 'back door wiretap' to intercept six months worth of emails without a warrant," said EFF Senior Staff Attorney Kevin Bankston. "Thankfully, this abuse has given the appeals court yet another opportunity to clarify that the Fourth Amendment protects the privacy of email against secret government snooping, even when it's in the hands of an email provider."

EFF filed a similar amicus brief with the 6th Circuit in 2006 in a civil suit brought by Warshak against the government for its warrantless seizure of his emails. There, the 6th Circuit agreed with EFF that email users have a Fourth Amendment-protected expectation of privacy in the email they store with their email providers, though that decision was later vacated on procedural grounds.

"The government's illegal email surveillance in this case raises troubling questions about how often the Justice Department has bent the law or broken it outright in other criminal investigations," said Bankston. "This 'back door wiretap' is yet another demonstration of why Congress must update the federal surveillance statutes to require comprehensive reporting on how the government is using its spying authorities."

The amicus brief was also signed by the ACLU of Ohio and the Center for Democracy and Technology.

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

Contact:

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

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June 4, 2009

New Tool Documents Changes in Policy on the Internet's Biggest Websites

San Francisco - "Terms of Service" policies on websites define how Internet businesses interact with you and use your personal information. But most web users don't read these policies -- or understand that the terms are constantly changing. To track these ever-evolving documents, the Electronic Frontier Foundation (EFF) is launching "TOSBack": a "terms of service" tracker for Facebook, Google, eBay, and other major websites.

"Terms of service form the foundation of your relationship with social networking sites, online businesses, and other Internet communities, but most people become aware of these terms only when there's a problem," said EFF Activism and Technology Manager Tim Jones. "We created TOSBack to help consumers monitor terms of service for the websites they use everyday, and show how the terms change over time."

At www.TOSBack.org, you can see a real-time feed of changes and updates to more than three dozen polices from the Internet's most popular online services. Clicking on an update brings you to a side-by-side before-and-after comparison, highlighting what has been removed from the policy and what has been added.

The issue of terms-of-service changes -- and how and why they are made -- was highlighted earlier this year when Facebook modified its terms of use. Facebook users worried that the change gave the company the right to use members' content indefinitely. After a user revolt, Facebook announced that it would restore the former terms while it worked through the concerns users had raised.

"Some changes to terms of service are good for consumers, and some are bad," said EFF Senior Staff Attorney Fred von Lohmann. "But Internet users are increasingly trusting websites with everything from their photos to their 'friends lists' to their calendar -- and sometimes even their medical information. TOSBack will help consumers flag changes in the websites they use every day and trust with their personal information."

For TOSBack:
http://www.TOSBack.org

Contacts:

Tim Jones
Activism and Technology Manager
Electronic Frontier Foundation
tim@eff.org

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

June 3, 2009

Judge Rules Telecoms Have Immunity Under Unconstitutional FISA Amendments Act

San Francisco - A federal judge today dismissed dozens of lawsuits over illegal domestic surveillance of American citizens, ruling that telecommunications companies had immunity from liability under the controversial FISA Amendments Act (FISAAA). The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) California and Illinois affiliates are planning to appeal the decision to the 9th U.S. Circuit Court of Appeals, arguing that FISAAA is unconstitutional.

"We're deeply disappointed in Judge Walker's ruling today," said EFF Legal Director Cindy Cohn. "The retroactive immunity law unconstitutionally takes away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law."

Signed by President Bush in 2008, the FISAAA allowed for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Then-Attorney General Michael Mukasey filed that classified certification with the court in September and demanded that the cases be dismissed.

"The immunity legislation that the court upheld today gives the telephone companies a free pass for flouting the law and violating the privacy rights of millions of their customers," said Ann Brick, ACLU of Northern California staff attorney.

In today's ruling, Judge Walker left the door open to accountability for the government, holding that "plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities." EFF is also suing the government for the illegal surveillance in a separate case, Jewel v. NSA.

EFF and the ACLU are co-coordinating counsel for all 46 outstanding lawsuits concerning the government's warrantless surveillance program. Additionally, EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency.

"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," said EFF Senior Staff Attorney Kurt Opsahl. "Now it is up to the Court of Appeals to stand up for the Constitution, and reverse today's decision."

For the full order from Judge Walker:
http://www.eff.org/files/filenode/att/orderhepting6309_0.pdf

Contacts:

Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org

Rebecca Farmer
Media Relations Director
ACLU of Northern California
rfarmer@aclunc.org

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