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EFF Press Release Archives

Press Releases: May 2011

May 20, 2011

Justice Department Withholding Information on Controversial Legal Theory

Washington, D.C. - The Electronic Frontier Foundation (EFF) has filed a Freedom of Information Act (FOIA) suit against the Department of Justice (DOJ), demanding the release of a secret legal memo used to justify FBI access to Americans' telephone records without any legal process or oversight.

A report released last year by the DOJ's own Inspector General revealed how the FBI, in defending its past violations of the Electronic Communications Privacy Act (ECPA), had come up with a new legal argument to justify secret, unchecked access to private telephone records. According to the report, the DOJ's Office of the Legal Counsel (OLC) had issued a legal opinion agreeing with the FBI's theory. That legal opinion is the target of the FOIA lawsuit filed Thursday.

The Inspector General's report is heavily redacted, concealing which part of the surveillance statutes the FBI and OLC are relying on to reach their dangerous conclusion and to what types of records this new purported exception to the law applies. However, the report does show that the Inspector General had grave concerns about the FBI's interpretation of the law.

"Even officials within the Justice Department itself are concerned that the FBI's secret legal theory jeopardizes privacy and government accountability, especially considering the FBI's demonstrated history of abusing surveillance law," said EFF Senior Staff Attorney Kevin Bankston. "Secret law has no place in our democracy. Congress can't even consider closing this dangerous surveillance loophole until we understand the FBI's legal argument, yet the Department of Justice is still hiding it from Congress and the public."

Earlier this year, the DOJ denied a FOIA request from a journalist seeking disclosure of the secret OLC opinion and in doing so revealed -- perhaps inadvertently -- the specific portion of the law on which the FBI's aggressive legal theory relies. Based on its analysis of that particular ECPA provision, 18 U.S.C. 2511(2)(f), EFF fears that the FBI and OLC have wrongly concluded that national security investigators are free to obtain records of Americans' international communications without first obtaining a subpoena or any other legal process. With this additional information about the contents of the OLC opinion, EFF filed its own FOIA request, but the DOJ has continued to stall its release.

"Congress is currently debating how to reform surveillance statutes like the PATRIOT Act and the Electronic Communications Privacy Act," said EFF Senior Counsel David Sobel. "If the FBI is claiming that it has the right to secret, unchecked access to Americans' communications records, Congress and the American public need to know that now."

For the full FOIA lawsuit:
https://www.eff.org/files/filenode/secretlawmemo/complaint.pdf

Contacts:

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

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

Related Issues:
May 5, 2011

Unsealed Documents Show Righthaven Not True Owner of News Article's Copyright

Las Vegas - The publisher of a criminal justice blog that provides resources for difficult-to-prosecute murder cases has asked a judge to dismiss the sham infringement lawsuit filed against him by copyright troll Righthaven LLC. Recently unsealed documents show that Righthaven is not the true owner of the copyright of the news article that is the basis for the lawsuit.

The Electronic Frontier Foundation (EFF) and the law firm of Wilson Sonsini Goodrich & Rosati are representing former prosecutor Thomas DiBiase. In this case, as in many others, Righthaven sued over the use of a Las Vegas Review-Journal article, claiming that the newspaper had transferred the copyright to Righthaven before filing the suit. However, a critical document unearthed by EFF in another Righthaven lawsuit shows that the copyright assignment was a sham, and that Righthaven was merely agreeing to undertake the lawsuit at its own expense in exchange for a cut of the recovery.

"Copyright law demands that only the owner of exclusive rights under the Copyright Act can enforce copyrights -- someone with some skin in the game," said EFF Senior Staff Attorney Kurt Opsahl. "But the Strategic Alliance Agreement between Righthaven and the Review-Journal shows that the newspaper kept all the rights to exploit its article. Righthaven's role is only to pursue heavy-handed lawsuits while trying to extract settlements for less than the cost of defense."

Righthaven has brought hundreds of copyright cases in Nevada federal court that are riddled with bogus claims and baseless demands. For example, Righthaven contends that the mere hosting of any infringing material means that the entire domain is forfeit to Righthaven. While the judge in this case has already rejected that claim, finding that there was no basis for it under the law, Righthaven continues to assert this claim in newly filed cases.

"Righthaven's copyright trolling undermines free and open discussion on the Internet by punishing people for sharing information about the news of the day, even where that sharing is perfectly legal," said EFF Intellectual Property Director Corynne McSherry. "We're asking the judge here to put a stop to this bogus lawsuit and help set a precedent that may finally end Righthaven's litigation campaign."

Las Vegas attorney Chad Bowers also assisted in the filing of the motion Wednesday.

For the motion to dismiss:
https://www.eff.org/files/filenode//mtd5411.pdf

For more on this case:
https://www.eff.org/cases/righthaven-v-dibiase

Contacts:

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

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

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