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Press Room

August 5, 2009

On Locational Privacy, And How to Avoid Losing it Forever

San Francisco - Innovative new technologies can make it easier to pay your bridge toll or bus fare, to search for nearby businesses from your cell phone, and to get in and out of secure areas with a card instead of a key. But these systems also pose a dramatic threat to locational privacy -- your ability to move in public spaces without the systematic recording of where you are and when you are there.

In a report released today, the Electronic Frontier Foundation (EFF) documents how your location information is collected by various popular electronic devices and services, and argues for concrete technological solutions that would allow you to enjoy these systems' benefits without sacrificing your privacy in your everyday life.

"There are nifty new location-based technologies like electronic road-toll tags and cell-phone apps that alert you when your friends are nearby -- but these systems often create and store records of your movements," said EFF Staff Technologist Peter Eckersley, one of the co-writers of the white paper. "This could make it possible for others to know when you visited a health clinic, what church or bar you spend time in, or who you go to lunch with. It is essential that privacy-protecting algorithms are built into these devices and services, so we can enjoy their convenience without making our private lives into open books."

Systems that track people's movements are gaining in popularity, and over the next decade, it's likely that these technologies will be indelibly woven into the fabric of everyday life. The report tackles specific services in use today, and details encryption strategies and designs that would protect sensitive location information.

"The technical solution to preserving privacy in digital services lies in modern cryptography and careful design," said Stanford University mathematician Andrew J. Blumberg, the white paper's other co-writer. "It may seem counterintuitive, but using cryptography, these systems can function without collecting and storing personal data at all. The best way for systems to protect user data is not to collect it in the first place; then the information is not available for anyone to buy, steal, or obtain by subpoena -- it would stay truly private."

For the full white paper "On Locational Privacy, and How to Avoid Losing it Forever":
http://www.eff.org/wp/locational-privacy

Contacts:

Peter Eckersley
Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Andrew J. Blumberg
Postdoctoral Fellow
Stanford University
blumberg@math.stanford.edu

Related Issues:
July 22, 2009

Free Speech Vindicated, EFF Dismisses Suit

San Francisco - Apple has retracted its legal threats against public wiki hosting site Bluwiki, and, in response, EFF is dismissing its lawsuit against Apple over those threats. The skirmish involved a set of anonymously authored wiki pages in which hobbyists were discussing how to "sync" media to iPods and iPhones using music library playback software other than Apple's own iTunes.

In November 2008, Apple sent a series of legal threats to the operator of Bluwiki, alleging that these hobbyist discussions about interoperability violated copyright law and constituted a violation of the Digital Millennium Copyright Act (DMCA), even though the author(s) of the pages had not yet figured out how to accomplish their goal. In response to Apple's legal threats, Bluwiki took down the wiki pages in question. In April 2009, EFF and the San Francisco law firm Keker & Van Nest sued Apple on behalf of OdioWorks, which runs Bluwiki, asking a court to reject Apple's claims and allow Bluwiki to restore the discussions.

On July 8, 2009, Apple sent letter withdrawing its cease-and-desist demands and stating that "Apple no longer has, nor will it have in the future, any objection to the publication of the iTunesDB Pages." As a result, EFF has moved to dismiss its complaint against Apple.

"While we are glad that Apple retracted its baseless legal threats, we are disappointed that it only came after 7 months of censorship and a lawsuit," said EFF Senior Staff Attorney Fred von Lohmann. "Because Apple continues to use technical measures to lock iPod Touch and iPhone owners into -- and Palm Pre owners out of -- using Apple's iTunes software, I wouldn't be surprised if there are more discussions among frustrated customers about reverse engineering Apple products. We hope Apple has learned its lesson here and will give those online discussions a wide berth in the future."

For more details:
http://www.eff.org/deeplinks/2009/07/apple-backs-down-blu

For more information about OdioWorks v. Apple:
http://www.eff.org/cases/odioworks-v-apple

Contact:

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

Related Issues:
July 22, 2009

Lawsuit Seeks Public Disclosure of Oversight Records Amidst New Questions About Accountability

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against the Central Intelligence Agency (CIA) and a half-dozen other federal agencies involved in intelligence gathering, demanding the immediate release of reports about potential misconduct. EFF filed suit under the Freedom of Information Act (FOIA), requesting records of intelligence agencies' reporting of activities since 2001 that might have been unlawful or contrary to presidential order.

"By executive order, federal intelligence agencies must submit concerns about potentially illegal activity to the Intelligence Oversight Board and the Office of the Director of National Intelligence," said EFF Open Government Legal Fellow Nate Cardozo. "Intelligence agencies are given a wide berth for national security reasons, but at a minimum they're required to act within the limits of the law. These records hold important details about how well the Executive Branch's internal checks operate."

The members of the Intelligence Oversight Board were appointed by the president to advise on intelligence matters. Until last year, all intelligence agencies were required to report to the board "any intelligence activities of their organizations that they have reason to believe may be unlawful or contrary to Executive order or Presidential directive." The board was tasked with reviewing those reports, summarizing them, and forwarding to the president those that it believed described violations of the law. Last year, President Bush reassigned many of these responsibilities, including reviewing agency reports, to the Director of National Intelligence.

A storm of media coverage following this month's disclosure that the CIA chose to keep Congress in the dark about a plan to train anti-terrorist assassin teams has brought the lack of transparency in intelligence reporting to a head. Lawmakers have accused the CIA of deliberately misleading Congress and are calling for an investigation into officials' conduct. The reports the agencies have provided to the Intelligence Oversight Board undoubtedly contain information that will shed some light on incidents such as this -- information that is necessary in order to provide appropriate oversight.

In addition to the CIA, EFF's lawsuit names the Department of Homeland Security, the National Security Agency, the Department of Defense, the Department of Justice (including the FBI), the Office of the Director of National Intelligence, the Department of Energy, and the Department of State -- all of which failed to comply with FOIA requests seeking records and reports of concerns about intelligence activity that might have stepped over the bounds of the law.

"The CIA is not the only agency that has faced questions about the legality of its intelligence programs," said EFF Staff Attorney Marcia Hofmann. "Electronic surveillance and other intelligence activities have come under increasing scrutiny during the past several years. We're seeking information that will shed light on incidents of intelligence misconduct, how often they happen, and how effective oversight is for controversial programs. The agencies must follow the law and release these records to the public."

For the full complaint:
http://www.eff.org/files/filenode/intel_oversight/IOB.FOIA.Complaint.pdf

Contacts:

Nate Cardozo
Open Government Legal Fellow
Electronic Frontier Foundation
nate@eff.org

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

Related Issues:
July 21, 2009

EFF Releases 'Surveillance Self-Defense International' for Iranian Dissidents and Other Protestors

San Francisco - The Electronic Frontier Foundation (EFF) released "Surveillance Self-Defense International" (SSDI) today, a practical guide to help activists from around the world use the Internet safely under repressive regimes. It is available at: http://www.eff.org/wp/surveillance-self-defense-international.

Recent political protests in Iran, China, and elsewhere have demonstrated the enormous power of the Internet for organizing protests and reporting events to the world. But governments have also used the Internet to track, harass, and undermine. SSDI urges activists to consider the risks in using various technologies and outlines strategies that can allow protestors to continue to use the Internet safely.

"The Internet remains a powerful way to give voice to repressed people around the world," said EFF Staff Technologist Peter Eckersley. "But with increasingly prevalent government censorship and surveillance, citizens seeking free expression must consider the risks and make careful decisions about how they use the Internet. Surveillance Self-Defense International can help them make those decisions well."

Individuals outside of repressive regimes can also read the guide to find ideas for remotely assisting others in circumventing censorship and speaking out anonymously on the Internet. Shortly after the contested Iranian election, many activists sought advice on using their computers to set up proxies or Tor nodes to help Iranian citizens access the web.

"Surveillance Self-Defense International isn't just about what to do when facing down surveillance and censorship in your own country," said Danny O'Brien, EFF's International Outreach Coordinator. "It's about what ordinary Net users can do to help protect others. Whoever you are, and wherever you are, you can help keep the Net safe for free speech."

SSDI is an offshoot of EFF's Surveillance Self-Defense manual, an online how-to guide for protecting private data against government spying in the U.S. SSDI reflects the fact that the best strategies to achieve privacy are very different for people in the U.S. and people living elsewhere, sometimes under authoritarian regimes.

For "Surveillance Self-Defense International":
http://www.eff.org/wp/surveillance-self-defense-international

Contacts:

Peter Eckersley
Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Danny O'Brien
International Outreach Coordinator
Electronic Frontier Foundation
danny@eff.org

July 13, 2009

EFF Faces Off Against Obama Administration in Jewel v. NSA

San Francisco - On Wednesday, July 15, at 10:30 a.m., a federal judge in San Francisco will hear arguments in the government's motion to dismiss Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) challenging dragnet government surveillance of millions of ordinary Americans.

The Justice Department moved to dismiss the case in April, arguing that litigation over the warrantless wiretapping program would require the government to disclose privileged "state secrets" -- essentially repeating the arguments made by the Bush Administration in its attempts to block lawsuits over the illegal spying. The Justice Department also claims that the U.S. possesses "sovereign immunity" and cannot be held accountable for illegal surveillance under any federal statutes.

In Wednesday's hearing, EFF will argue that the lawsuit cannot be dismissed based on the government's blanket secrecy assertion, as made clear in previous court decisions concerning NSA spying and the CIA's special rendition program, and that the government is not immune against suit for violating federal wiretapping statutes.

For more information about attending the hearing, please contact press@eff.org.

WHAT:
Jewel v. NSA hearing on the government's motion to dismiss

WHEN:
Wednesday, July 15, 2009
10:30 a.m.

WHERE:
450 Golden Gate Ave., Courtroom 6
San Francisco, CA 94102

For more on Jewel v NSA: http://www.eff.org/cases/jewel

Contact:

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

Related Issues:
July 2, 2009

EFF Argues Phones Ringing in Public Do Not Violate Copyright Law

New York - The Electronic Frontier Foundation (EFF) urged a federal court Wednesday to reject bogus copyright claims in a ringtone royalty battle that could raise costs for consumers, jeopardize consumer rights, and curtail new technological innovation.

Millions of Americans have bought musical ringtones, often clips from favorite popular songs, for their mobile phones. Mobile phone carriers pay royalties to song owners for the right to sell these snippets to their customers. But as part of a ploy to squeeze more money out of the mobile phone companies, the American Society of Composers, Authors, and Publishers (ASCAP) has told a federal court that each time a phone rings in a public place, the phone user has violated copyright law. Therefore, ASCAP argues, phone carriers must pay additional royalties or face legal liability for contributing to what they claim is cell phone users' copyright infringement. In an amicus brief filed Wednesday, EFF points out that copyright law does not reach public performances "without any purpose of direct or indirect commercial advantage" -- clearly the case with cell phone ringtones. If phone users are not infringing copyright law, then mobile phone service providers are not contributing to any infringement.

"This is an outlandish argument from ASCAP," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Are the millions of people who have bought ringtones breaking the law if they forget to silence their phones in a restaurant? Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!"

ASCAP has responded by saying that it does not plan to charge mobile phone users, just mobile phone service providers. But if ASCAP prevails, consumers could find themselves targeted by other copyright owners for "public performances." Worse, these wrongheaded legal claims cast a shadow over innovators who are building gadgets that help consumers get the most from their copyright privileges.

"Because it is legal for consumers to play music in public, it's also legal for my mobile phone carrier to sell me a ringtone and a phone to do it," said von Lohmann. "Otherwise it would be illegal to sell all kinds of technologies that help us enjoy our fair use, first sale, and other copyright privileges."

The Center for Democracy and Technology and Public Knowledge also joined the EFF brief.

For the full amicus brief:
http://www.eff.org/files/filenode/US_v_ASCAP/US%20v%20ASCAP%20EFF%20ATT%20Brief.pdf

For more on this case:
http://www.eff.org/cases/us-v-ascap

Contact:

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

Related Issues:
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

Related Issues:
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

Related Issues:
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

Related Issues:
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

Related Issues:
May 27, 2009

New Curriculum Gives Students the Facts About Their Digital Rights and Responsibilities

San Francisco - As the entertainment industry promotes its new anti-copying educational program to the nation's teachers, the Electronic Frontier Foundation (EFF) today launched its own "Teaching Copyright" curriculum and website to help educators give students the real story about their digital rights and responsibilities on the Internet and beyond.

The Copyright Alliance -- backed by the recording, broadcast, and software industries -- has given its curriculum the ominous title "Think First, Copy Later." This is just the latest example of copyright-focused educational materials portraying the use of new technology as a high-risk behavior. For example, industry materials have routinely compared downloading music to stealing a bicycle, even though many downloads are lawful, and making videos using short clips from other sources is treated as probably illegal even though many such videos are also lawful. EFF created Teaching Copyright as a balanced curriculum encouraging students to make full and fair use of technology that is revolutionizing learning and the exchange of information.

"Today's tech-savvy teens will grow into the artists and innovators of tomorrow," said EFF Staff Attorney Corynne McSherry. "They need to understand their digital rights and responsibilities in order to create, critique, and comment on their culture. This curriculum fills an educational void, introducing critical questions of digital citizenship into the classroom without misinformation that scares kids from expressing themselves in the modern world."

The Teaching Copyright curriculum is a detailed, customizable plan that connects students to contemporary issues related to the Internet and technology. Teaching Copyright invites discussion about how creativity is enabled by new technologies, what digital rights and responsibilities exist or should exist, and what roles students play as users of technology. The website at www.teachingcopyright.org includes guides to copyright law, including fair use and the public domain.

"Kids are bombarded with messages that using new technology is illegal," said EFF Activist Richard Esguerra. "Instead of approaching the issues from a position of fear, Teaching Copyright encourages inquiry and greater understanding. This is a balanced curriculum, asking students to think about their role in the online world and to make informed choices about their behavior."

The Teaching Copyright curriculum was developed with the input of educators from across the U.S. and has been designed to satisfy components of standards from the International Society for Technology in Education and the California State Board of Education.

Learn more about Teaching Copyright:
http://www.teachingcopyright.org/

Contacts:

Richard Esguerra
Activist
Electronic Frontier Foundation
richard@eff.org

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

May 22, 2009

Student's Computers Were Seized Under Baseless Theory of Computer Hacking

Boston - A justice of the Massachusetts Supreme Judicial Court has ordered police to return a laptop and other property seized from a Boston College computer science student's dorm room after finding there was no probable cause to search the room in the first place. The police were investigating whether the student sent hoax emails about another student.

The Electronic Frontier Foundation (EFF) and Boston law firm Fish and Richardson are representing the computer science student, who was forced to complete much of the final month of the semester without his computer and phone. Boston College also shut off the student's network access in the wake of the now-rejected search.

"The judge correctly found that there was no legitimate reason to search and seize this student's property," said EFF Civil Liberties Director Jennifer Granick. "Our client was targeted because law enforcement was improperly suspicious of our client's computer skills and misunderstood computer crime laws. We're grateful that the court was able to see through the commonwealth's smokescreen and rectify this mistake."

In her order Thursday, Justice Margot Botsford rejected the commonwealth's theory that sending a hoax email might be unlawful under a Massachusetts computer crime statute barring the "unauthorized access" to a computer, concluding that there could be no violation of what was only a "hypothetical internet use policy." Thursday's decision now stands as the highest state court opinion to reject the dangerous theory that terms of service violations constitute computer "hacking" crimes. Justice Botsford further found that details offered by police as corroboration of other alleged offenses were insufficient and did not establish probable cause for the search.

"No one should be subjected to a search like this based on such flimsy theories and evidence," said EFF Senior Staff Attorney Matt Zimmerman. "The Fourth Amendment flatly bars such fishing expeditions. Computer expertise is not a crime, and it was inappropriate for the commonwealth to employ such transparent scare tactics in an attempt to hide the fact that they had no case."

EFF had appealed the case to the Massachusetts Supreme Court with Fish & Richardson attorneys Adam Kessel, Lawrence Kolodney, and Tom Brown.

For the full order from Judge Botsford:
http://www.eff.org/files/SJCcalixteorder.pdf

For more on this case:
http://www.eff.org/deeplinks/2009/05/mass-sjc-tosses-calixte-warrant

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
May 6, 2009

Broken Promises from the Obama Administration Keep Americans in the Dark About ACTA

Washington, D.C. - Two public interest groups today called on the government to stop blocking the release of information about a secret intellectual property trade agreement with broad implications for privacy and innovation around the world.

The Electronic Frontier Foundation (EFF) and Public Knowledge said that the April 30th release of 36 pages of material by the United States Trade Representative (USTR) was the second time the government had the opportunity to provide some public insight into the Anti-Counterfeiting Trade Agreement (ACTA), but declined to do so. More than a thousand pages of material about ACTA are still being withheld, despite the Obama administration's promises to run a more open government.

"We are very disappointed with the USTR's decision to continue to withhold these documents," said EFF Senior Counsel David Sobel. "The president promised an open and transparent administration. But in this case and others we are litigating at EFF, we've found that the new guidelines liberalizing implementation of the Freedom of Information Act haven't changed a thing."

EFF and Public Knowledge filed suit in September of 2008, demanding that background documents on ACTA be disclosed under the Freedom of Information Act (FOIA). Initially, USTR released 159 pages of information about ACTA and withheld more than 1300 additional pages, claiming they implicate national security or reveal the USTR's "deliberative process." After reconsidering the release under the Obama administration's new transparency policies, the USTR disclosed the additional pages last week, most of which contain no substantive information.

However, one of the documents implies that treaty negotiators are zeroing in on Internet regulation. A discussion of the challenges for the pact includes "the speed and ease of digital reproductions" and "the growing importance of the Internet as a means of distribution."

Other publicly available information shows that the treaty could establish far-reaching customs regulations over Internet traffic in the guise of anti-counterfeiting measures. Additionally, multi-national IP industry companies have publicly requested that ISPs be required to engage in filtering of their customers' Internet communications for potentially copyright-infringing material, force mandatory disclosure of personal information about alleged copyright infringers, and adopt "Three Strikes" policies requiring ISPs to automatically terminate customers' Internet access upon a repeat allegation of copyright infringement.

"What we've seen tends to confirm that the substance of ACTA remains a grave concern," said Public Knowledge Staff Attorney Sherwin Siy. "The agreement increasingly looks like an attempt by Hollywood and the content industries to perform an end-run around national legislatures and public international forums to advance an aggressive, radical change in the way that copyright and trademark laws are enforced."

"The USTR's official summary of the process, released last month, recognized the lack of transparency so far while doing nothing to broaden stakeholder input or engage public debate," said International Affairs Director Eddan Katz. "The radical proposals being considered under the Internet provisions deserve a more transparent process with greater public participation."

Litigation in the case will now continue, with USTR asking U.S. District Judge Rosemary M. Collyer to uphold its decision to conceal virtually all of the information that EFF and PK seek concerning the ACTA negotiations.

For the documents released so far:
http://www.eff.org/fn/directory/6661/329

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

Contacts:

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

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

April 28, 2009

EFF Calls on Congress to Examine the Investigative Data Warehouse

Washington, D.C. - The Electronic Frontier Foundation (EFF) called on Congress today to examine the Investigative Data Warehouse (IDW) -- a massive FBI data-mining project that includes a billion records, many of which contain personal information on American citizens. Supporting its request, EFF provided Congress with its new report on IDW, published today with information obtained through Freedom of Information Act (FOIA) litigation.

EFF sued the FBI for information about the IDW under the FOIA in 2006, but the agency has withheld important details about the collection, maintenance, and use of personal information contained in the huge database. The Department of Justice recently told the court that no additional material will be disclosed, despite the Obama administration's new policies on open government. In a letter sent today to Senate Judiciary Committee Chairman Patrick Leahy and House Judiciary Committee Chairman John Conyers, EFF says that Congress is the last avenue for accountability and oversight of this potentially dangerous program.

"Nearly two years ago, Senator Leahy noted that the IDW was a system that was 'ripe for abuse,'" said EFF Senior Counsel David Sobel. "We could not agree more. The congressional judiciary committees should examine the IDW and provide the public with needed information about its impact on privacy rights."

While the FBI is still withholding critical information, EFF's lawsuit did uncover some key documents about the IDW. Using these records, EFF has published a report surveying what is known about this massive data collection, and what questions are still unanswered. The report notes that the FBI has identified only 38 of the 53 "data sources" that feed into the IDW. The report also discusses the FBI's efforts to avoid "raising congressional consciousness levels and expectations" about the IDW's privacy impact.

"A data warehouse of the size and power of the IDW requires strict oversight from Congress and the public," said EFF Senior Staff Attorney Kurt Opsahl, who authored the new report. "The IDW includes more than four times as many documents as the Library of Congress, and the FBI has asked for millions of dollars to data-mine this warehouse, using unproven science in an attempt to predict future crimes from past behavior. We need to know all of what's in the IDW, and how our privacy will be protected."

For the full letter to Senator Leahy:
http://www.eff.org/files/filenode/foia_idw/leahy_IDW_ltr.pdf

For EFF's report on the IDW:
http://www.eff.org/issues/foia/investigative-data-warehouse-report

Contact:

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

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

Related Issues:
April 27, 2009

Apple’s Baseless Copyright Claims Squelch Free Speech

San Francisco - The Electronic Frontier Foundation (EFF) filed suit against Apple Inc. today to defend the First Amendment rights of an operator of a noncommercial, public Internet "wiki" site known as BluWiki.

EFF and the San Francisco law firm of Keker & Van Nest represent OdioWorks LLC, which runs the BluWiki website. Like many "wiki" platforms, such as Wikipedia, it is open to the public for collaborative authoring and editing on any topic. The site is entirely noncommercial, operated by OdioWorks as a public service.

Late last year, after BluWiki users began a discussion about making some Apple iPods and iPhones interoperate with software other than Apple's own iTunes, Apple lawyers demanded removal of the content. In a letter to OdioWorks, the attorneys alleged that the discussions constituted copyright infringement and a violation of the Digital Millennium Copyright Act's (DMCA's) prohibition on circumventing copy protection measures. Fearing legal action by Apple, OdioWorks took down the discussions from the BluWiki site.

OdioWorks filed the lawsuit today in order to vindicate its right to restore those discussions. Filed in federal court in San Francisco, the suit seeks a declaratory judgment that the discussions do not violate any of the DMCA's anti-circumvention provisions, and do not infringe any copyrights owned by Apple.

"I take the free speech rights of BluWiki users seriously," said Sam Odio, owner of OdioWorks. "Companies like Apple should not be able to censor online discussions by making baseless legal threats against services like BluWiki that host the discussions."

The discussions on the BluWiki site focused on how hobbyists might enable iPods and iPhones to work with desktop media management software other than Apple's own iTunes software. The discussions were apparently spurred by Apple's efforts prevent the iPod Touch and iPhone from working with competing media management software such as WinAmp and Songbird.

"Apple's legal threats against BluWiki are about censorship, not about protecting their legitimate copyright interests," said Senior Staff Attorney Fred von Lohmann. "Wikis and other community sites are home to many vibrant discussions among hobbyists and tinkerers. It's legal to engage in reverse engineering in order to create a competing product, it's legal to talk about reverse engineering, and it's legal for a public wiki to host those discussions."

For the full complaint in OdioWorks v. Apple Inc.:
http://www.eff.org/files/filenode/odio_v_apple/Final%20Complaint.pdf

For more on this case:
http://www.eff.org/cases/odioworks-v-apple

Contacts:

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

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

April 20, 2009

Legal Battle Over Online Gambling Jeopardizes Free Speech

Frankfort, KY - The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union of Kentucky (ACLU of Kentucky) on Friday urged the Kentucky Supreme Court to uphold an appeals court ruling that blocked state officials from ordering out-of-state registrars to turn over control of over 100 overseas Internet domain names accused of violating state gambling laws.

The case began in September when the commonwealth of Kentucky convinced a state court judge to order the seizure of 141 domain names, claiming that the names were "gambling devices" banned under Kentucky law. A Kentucky appeals court later overturned the ruling, but state officials appealed the order. In a friend-of-the-court brief filed with the Kentucky Supreme Court in support of the appeals court ruling, EFF, CDT, and the ACLU of Kentucky argue that the commonwealth's attempt to regulate overseas websites is fatally flawed and, if successful, would violate the First Amendment, the Commerce Clause, and the Due Process Clause.

"No state can order a domain name registrar over which it does not have jurisdiction to do anything. The commonwealth simply hasn't satisfied its burden here," said EFF Senior Staff Attorney Matt Zimmerman. "Without these important protections, no website would be safe from arbitrary decisions by foreign courts to silence online content that they don't like."

"Under Kentucky's legal theory, any government in the world would be able to seize any website domain name if the site has content that the government does not like," said John Morris, general counsel for CDT. "Such a theory, if upheld, would be devastating to free expression around the world."

EFF, CDT, and the ACLU of Kentucky were joined on the brief by the Media Access Project (MAP), the United States Internet Industry Association (USIIA), the Internet Commerce Coalition (ICC), and the Internet Commerce Association (ICA) -- all leading public interest and industry trade groups.

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

For more on this case:
http://www.eff.org/cases/commonwealth-kentucky-v-141-internet-domain-names

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

April 13, 2009

EFF Challenges Illegal Computer Seizure and Ongoing Data Searches by Campus Police

Boston - A Boston College computer science student has asked a Massachusetts court to quash an invalid search warrant for his dorm room that resulted in campus police illegally seizing several computers, an iPod, a cell phone, and other technology.

The Electronic Frontier Foundation (EFF) is representing the student, who has petitioned the court for the immediate return of his property and is demanding that investigators be prohibited from any further searches or analysis of his digital data. Massachusetts State Police participated in the search and are overseeing the forensic analysis of the seized property.

"This search warrant is invalid, as there is no probable cause that a crime was committed at all," said EFF Civil Liberties Director Jennifer Granick. "Every day this student's private information is in the hands of the police department, he suffers harm to his property interests and his constitutional rights."

The dorm room search stemmed from an investigation into who sent an email to a Boston College mailing list alleging that another student was gay. Police say they know who sent the email and that the sender committed the crimes of "obtaining computer services by fraud or misrepresentation" and obtaining "unauthorized access to a computer system." However, nothing presented by the investigating officer to obtain the warrant, including the allegation that the student sent the email to the mailing list, could constitute the cited criminal offenses.

Some of the supposedly suspicious activities listed in support of the search warrant application include: the student being seen with "unknown laptop computers," which he "says" he was fixing for other students; the student uses multiple names to log on to his computer; and the student uses two different operating systems, including one that is not the "regular B.C. operating system" but instead has "a black screen with white font which he uses prompt commands on."

"The police used inapplicable criminal laws as a basis for a fishing expedition to determine the author of an anonymous email," said EFF Senior Staff Attorney Matt Zimmerman. "Now, this student has been suspended from his job, and he is without a laptop and other devices he needs to do his schoolwork. His private communications and papers are in the hands of police who are searching for evidence without just cause. Even his cell phone and iPod were taken, clearly an overreach if the goal is tracking the source of an email."

The motion to quash the search warrant was filed with assistance from Fish & Richardson attorneys Adam Kessel, Lawrence Kolodney, and Tom Brown. No court date has been set yet to hear the motion.

For the full motion for emergency relief:
http://www.eff.org/files/filenode/inresearchBC/CalixteMotEmergencyRelief.pdf

For more on this case:
http://www.eff.org/cases/re-matter-search-warrant-boston-college

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
April 6, 2009

Says Court Must Dismiss Jewel v. NSA to Protect 'State Secrets'

San Francisco - The Obama administration formally adopted the Bush administration's position that the courts cannot judge the legality of the National Security Agency's (NSA's) warrantless wiretapping program, filing a motion to dismiss Jewel v. NSA late Friday.

In Jewel v. NSA, the Electronic Frontier Foundation (EFF) is challenging the agency's dragnet surveillance of millions of ordinary Americans. The Obama Justice Department claims in its motion that litigation over the wiretapping program would require the government to disclose privileged "state secrets." These are essentially the same arguments made by the Bush administration three years ago in Hepting v. AT&T, EFF's lawsuit against one of the telecom giants complicit in the NSA spying.

"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," said EFF Senior Staff Attorney Kevin Bankston. "But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."

For the full motion to dismiss:
http://www.eff.org/files/filenode/jewel/jewelmtdobama.pdf

For more on Jewel v. NSA:
http://www.eff.org/cases/jewel

Contacts:

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

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

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

Related Issues:
April 2, 2009

EFF and Others Call for New Offices to Promote Innovation

Washington, D.C. - The Electronic Frontier Foundation (EFF) has joined a broad coalition of public interest groups and trade associations calling for President Obama to diversify future appointments to intellectual property policy positions and create new offices devoted to promoting innovation and free expression.

In all, 19 organizations signed the letter to the president, spearheaded by Washington D.C.-based non-profit Public Knowledge. The coalition includes the Consumer Electronics Association, the American Library Association, and the Wikimedia Foundation.

Several of the president's recent appointees to positions that oversee intellectual property policy have represented the recording industry or other industries that support overly broad IP protection. But many positions with IP policy responsibilities have not yet been filled. In the letter sent today, the coalition urges the administration to appoint individuals representing the diversity of stakeholders involved in IP issues.

"Innovators, artists, and the increasingly participatory public are all deeply invested in the future of America's intellectual property policy," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "For example, thousands of remix videos are posted to YouTube every day, and they are already an important part of political debate and artistic expression in the 21st century. America needs policymakers who will protect new tools and new artistic works."

The coalition also calls on the president to create new positions at the Patent and Trademark Office, the United States Trade Representative, and the Department of State dedicated to promoting innovation and advancing the cause of progress in sciences and the useful arts.

"While the content industry plays a significant role in our economy, so too do the creators of technology and their force of innovation," said Gigi B. Sohn, president and co-founder of Public Knowledge. "And while we recognize the rights of corporate content creators, we might also recognize the rights of consumers lawfully to create their own works and to use their own digital media. It's that balance the Administration needs to recognize."

For the full letter to President Obama:
http://www.eff.org/files/filenode/obamaIPcoalitionletter.pdf

Contact:

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

March 17, 2009

Law Enforcement Must Get a Warrant Before Seizing Records

Philadelphia - The Electronic Frontier Foundation (EFF) urged a U.S. appeals court Monday to block the government's repeated attempts to seize cell phone location information -- a record of where the cell phone user travels throughout each day -- without a warrant in violation of communications privacy statutes and the Constitution.

In September of last year, a federal court affirmed that location information stored by a mobile phone provider is legally protected and that a judge can and should require law enforcement to show probable cause in order to access the stored data. However, the government appealed that decision to the 3rd U.S. Circuit Court of Appeals.

Cell phone providers store an extraordinary amount of data about where you are when making or receiving a call, based on the cell towers your phone uses. In the amicus brief filed Monday, EFF argues that Electronic Communications Privacy Act and the Fourth Amendment protect this location information from unfettered search and seizure.

"The government argues that federal law requires judges to approve their applications for location information from cell phone companies -- even if the police don't have probable cause to obtain this sensitive information," said EFF Civil Liberties Director Jennifer Granick. "Courts have the right under statute -- and the duty under the Constitution -- to demand that the government obtain a search warrant before seizing this private location data."

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

For the full amicus brief:
http://www.eff.org/files/filenode/celltracking/Filed%20Cell%20Tracking%20Brief.pdf

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

Contact:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

March 17, 2009

EFF Urges U.S. Sentencing Commission to Reject Amendments on Use of Proxies

Washington, D.C. - The Electronic Frontier Foundation (EFF) today urged the United States Sentencing Commission to reject modifications to federal sentencing guidelines that would require extra prison time for people who use technology that hides one's identity or location.

Under current rules, a criminal defendant can get additional time added to a prison sentence if he used "sophisticated means" to commit the offense. In its testimony before the commission, EFF will argue that sentencing courts should not assume that using proxies -- technologies that can anonymize users or mask their location -- is a mark of sophistication. In fact, proxies are widely employed by corporate IT departments and public libraries and, like many computer applications, can be used with little or no knowledge on the part of the user.

"It would be a serious mistake for the United States Sentencing Commission to establish a presumption that using a common technology is worthy of additional punishment," said Jennifer Granick, EFF Civil Liberties Director. "Whether or not a convicted person's use of a proxy is worthy of increased penalties is a case-by-case determination most appropriately made by a court."

"While proxies may be an advanced technology, using a proxy is often no more difficult than using Microsoft Word," said Seth Schoen, EFF Staff Technologist. "Many kinds of people use proxies for all sorts of legitimate purposes, so only a court can reliably assess which uses are truly employed as a 'sophisticated means' of committing a crime and which are for privacy, free speech or some other innocent purpose."

Schoen will testify about EFF's comments at the Sentencing Commission's public hearing on March 17th in Washington, D.C.

For the full testimony:
http://www.eff.org/files/filenode/ussc-schoen-statement.pdf

For more on the hearing:
http://www.ussc.gov/AGENDAS/20090317/Public_Hearing.htm

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

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

March 16, 2009

New Search Engine Highlights EFF's Transparency Efforts During Sunshine Week

San Francisco - In celebration of Sunshine Week, the Electronic Frontier Foundation (EFF) today launched a sophisticated search tool that allows the public to closely examine thousands of pages of documents the organization has pried loose from secretive government agencies. The documents relate to a wide range of cutting-edge technology issues and government policies that affect civil liberties and personal privacy.

EFF's document collection -- obtained through requests and litigation under the Freedom of Information Act (FOIA) -- casts light on several controversial government initiatives, including the FBI's Investigative Data Warehouse and DCS 3000 surveillance program, and the Department of Homeland Security's Automated Targeting System and ADVISE data-mining project. The documents also provide details on Justice Department collection of communications routing data, Pentagon monitoring of soldiers' blogs, mismatches in the Terrorist Screening Center's watchlist, and FBI misuse of its national security letter subpoena authority.

The new search capability enables visitors to EFF's website to conduct keyword searches across the universe of government documents obtained by EFF, maximizing the value of the material.

"Until recently, documents obtained under FOIA often gathered dust in filing cabinets," said David Sobel, EFF Senior Counsel and director of the organization's FOIA Litigation for Accountable Government (FLAG) Project. "We believe that government information should be widely available and easy to research, and our new search engine makes that a reality."

EFF is launching the tool during national Sunshine Week, an annual, non-partisan event that promotes government transparency. The celebration is particularly significant this year, because it comes after eight years of a presidential administration that was widely criticized for its secrecy and two months into a new administration that has promised "unprecedented" openness.

"We welcomed President Obama's declaration -- on his first full day in office -- that he will work to make the federal government more open and participatory," EFF Staff Attorney Marcia Hofmann said. "There's certainly a lot of work to do -- so much government activity has been hidden from public view in the name of 'national security' and the 'war on terror.'"

For the new FOIA document search tool:
http://www.eff.org/issues/foia/search

For more on EFF's FLAG Project:
http://www.eff.org/issues/foia

Contacts:

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

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

Related Issues:
March 3, 2009

Government Claims Unfettered Right to Tag Your Car with Tracking Devices

Washington, D.C. - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of the National Capital Area (ACLU-NCA) urged a U.S. appeals court today to reject government claims that federal agents have an unfettered right to install Global Positioning System (GPS) location-tracking devices on anyone's car without a search warrant.

In this case, FBI agents planted a GPS device on a car while it was on private property and then used it to track the position of the automobile every ten seconds for a full month, all without securing a warrant. In an amicus brief filed today, EFF and the ACLU-NCA argue that unsupervised use of such tactics would open the door for police to abuse their power and continuously track anyone's physical location for any reason -- never having to go to a judge to prove the surveillance is justified.

"This gives police unbridled discretion to collect location data on everyone, even if there are no reasonable grounds for suspicion," said EFF Civil Liberties Director Jennifer Granick. "Investigators could track Americans on a whim -- 24 hours a day, seven days a week."

At the same time, the cost of GPS tracking is dropping dramatically, while the accuracy keeps improving. This would allow law enforcement to create a massive database of Americans' movements without any judicial oversight whatsoever.

"GPS tracking enables the police to know when you visit your doctor, your lawyer, your church or your lover," said Arthur Spitzer, Legal Director of the ACLU-NCA. "And if many people are tracked, GPS data will show when and where they cross paths. Judicial supervision of this powerful technology is essential if we are to preserve individual liberty."

Daniel Prywes and Kip Wainscott of Bryan Cave LLP also volunteered their services to assist in preparing the EFF-ACLU brief

For the full amicus brief:
http://www.eff.org/files/filenode/US_v_Jones/Jones.DCCirBrief.EFFACLU.PDF

Contact:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Related Issues:
March 3, 2009

'Surveillance Self-Defense' Gives Practical Advice on Protecting Your Private Data

San Francisco - The Electronic Frontier Foundation (EFF) launched its Surveillance Self-Defense project today -- an online how-to guide for protecting your private data against government spying. You can find the project at http://ssd.eff.org.

EFF created the Surveillance Self-Defense site to educate Americans about the law and technology of communications surveillance and computer searches and seizures, and to provide the information and tools necessary to keep their private data out of the government's hands. The guide includes tips on assessing the security risks to your personal computer files and communications, strategies for interacting with law enforcement, and articles on specific defensive technologies such as encryption that can help protect the privacy of your data.

"Despite a long and troubling history in this country of the government abusing its surveillance powers, most Americans know very little about how the law protects them or about how they can take steps to protect themselves against government surveillance," said EFF Senior Staff Attorney Kevin Bankston. "The Surveillance Self-Defense project offers citizens a legal and technical toolkit with tips on how to defend themselves in case the government attempts to search, seize, subpoena or spy on their most private data."

Surveillance Self-Defense details what the government can legally do to spy on your computer data and communications, and what you can legally do to protect yourself against such spying. It addresses how to protect not only the data stored on your computer, but also the data you communicate over the phone or the Internet and data about your communications that are stored by third party service providers.

"You can imagine the Internet as a giant vacuum cleaner, sucking up all of the private information that you let near it. We want to show people the tools they can use to encrypt and anonymize data, protecting themselves against government surveillance," said EFF Staff Technologist Peter Eckersley. "Privacy is about mitigating risks and making tradeoffs. Every decision you make about whether to save an email, chat online, or search with or sign into Google has privacy implications. It's important to understand those implications and make informed decisions based on them, and we hope that Surveillance Self-Defense will help you do that."

Surveillance Self-Defense was created with the support of the Open Society Institute.

For Surveillance Self-Defense:
http://ssd.eff.org

Contacts:

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

Peter Eckersley
Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Related Issues:
February 12, 2009

Meritless Copyright Claims Won't Interfere With YouTube Rodeo Critiques

Animal Welfare Advocates Settle Online Video Battle With Cowboy Group
Meritless Copyright Claims Won't Interfere With YouTube Rodeo Critiques
For Immediate Release: Thursday, February 12, 2009

San Francisco - Animal welfare advocates and the world's largest rodeo-sanctioning organization have settled their copyright battle over YouTube videos, protecting the advocates' right to publicize their critiques of animal treatment at rodeos and creating a new model for handling takedown notices.

The Electronic Frontier Foundation (EFF) represents the group Showing Animals Respect and Kindness (SHARK), a non-profit organization that videotapes and photographs rodeos in order to expose animal abuse, injuries, and deaths. SHARK posted dozens of these critical videos to YouTube throughout 2006 and 2007. When the Professional Rodeo Cowboys Association (PRCA) falsely claimed that 13 of the videos infringed PRCA copyrights, YouTube disabled SHARK's entire account. SHARK sued the PRCA for misrepresentation, noting that, among other things, the videos could not have infringed any PRCA copyright because the rodeos themselves weren't copyrightable.

In a settlement announced today, the PRCA will pay $25,000 for the improper removals. PRCA has also agreed that any future copyright claims will be first sent to SHARK's video contact and then reviewed by the PRCA's general counsel for legal merit before any legal notices are sent to YouTube or another video service. In addition, the PRCA has agreed not to enforce a "no videotaping" provision in its ticket "contracts" against SHARK unless it enforces the same provision against others, meaning the PRCA will no longer be able to selectively enforce the provision against its critics.

"We're very pleased with this settlement," said SHARK Senior Investigator Michael Kobliska. "We have a First Amendment right to question how animals are treated at rodeos and to publicize the inhumane treatment we witness. This agreement lets SHARK continue its work without unfair interference."

This settlement is part of EFF's No Downtime for Free Speech Campaign, which works to protect online expression in the face of baseless copyright claims. EFF has seen people and organizations increasingly misusing the Digital Millennium Copyright Act (DMCA) and other intellectual property laws to demand that material be immediately taken down even when the material clearly does not infringe any legal rights. Service providers often comply with these requests without double-checking them, depriving groups like SHARK of a crucial mechanism for spreading their message.

"As demonstrated in our recent Presidential campaign, YouTube and other content-sharing sites have become an integral part of American discourse," said EFF Senior Intellectual Property Attorney Michael Kwun. "When critical videos are unfairly removed from the public eye, free speech and debate suffers."

Co-counsel Charles Lee Mudd Jr. of Mudd Law Offices in Chicago provided substantial assistance with the case.

For the full settlement agreement:
http://www.eff.org/files/filenode/SHARK_v_PRCA/SHARKPRCAsettlement.pdf

For more on the No Downtime for Free Speech Campaign:
http://www.eff.org/issues/ip-and-free-speech

Contacts:

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

Michael Kobliska
SHARK Investigator
mkobliska@sharkonline.org

Related Issues:
February 9, 2009

DRM Technologies Impede Innovation and Thwart Consumers' Rights

San Francisco - The Electronic Frontier Foundation (EFF) called on the Federal Trade Commission (FTC) today to mitigate the damage that digital rights management (DRM) technologies cause consumers.

In public comments submitted to the FTC today, EFF explained how DRM, backed by the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), impedes innovation and thwarts consumers' rights to make full use of their digital music, movies, software, and videogames. EFF urged the commission to study DRM's effect on competition in the marketplace, investigate whether the effects of DRM are fully disclosed to consumers, and promote a set of "Best Practices" that, if followed, would help alleviate the burdens of DRM for consumers.

Industry leaders argue that DRM is necessary to protect sales of digital media, but DRM systems are consistently and routinely broken almost immediately upon their introduction.

"DRM does not prevent piracy," said EFF Staff Attorney Corynne McSherry. "At this point, DRM seems intended to accomplish a very different purpose: giving some industry leaders unprecedented power to influence the pace and nature of innovation and upsetting the traditional balance between the interests of copyright owners and the interests of the public. The best way to fix the problem is to get rid of DRM on consumer products and reform the DMCA, but the steps we're suggesting will help protect technology users and future technology innovation in the meantime."

EFF's comments were filed in conjunction with the FTC's Town Hall on DRM, set for March 25 in Seattle. The Town Hall is free and open to the public.

For EFF's full comments to the FTC:
http://www.eff.org/files/filenode/DRM/DRMCOMMENTS_final.pdf

For more on the FTC Town Hall on DRM:
http://www.ftc.gov/opa/2008/12/drm.shtm

Contact:

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

Related Issues:
February 2, 2009

Site Challenges Redevelopment Efforts for NYC Landmark

New York - An activist was able to relaunch her online campaign today after claims were settled out of court for the shutting down of her website challenging redevelopment efforts in New York City's historic Union Square.

The Electronic Frontier Foundation (EFF) represented website creator Savitri Durkee, an activist concerned with preserving the character of Union Square and Union Square Park. A copyright lawsuit and other legal action brought by Union Square Partnership (USP), a group backing extensive redevelopment of the area, led to a nearly six-month shutdown of Durkee's site.

"I'm very pleased to have my parody back online," said Durkee. "Abolitionists, suffragettes, civil rights activists, and many others have exercised their First Amendment rights in Union Square. It's important that we have uncensored debate about what comes next for this historic landmark."

As part of the settlement, Union Square Partnership agreed to dismiss its claims in exchange for Durkee's promise to transfer the original domain names, to use disclaimers, and to refrain from impersonating USP board members by name. Durkee remains free to parody USP via other domain names, as long as the new domain doesn't use the organization's name alone.

"This is a good result for our client and the people of New York who have some big decisions to make about Union Square," said EFF Staff Attorney Corynne McSherry. "The Internet has revolutionized political activism, allowing everyone to have his or her say on a global platform. Parody is an important part of America's free speech tradition, and with her online parody Ms. Durkee brings this protected form of criticism into our digital age."

The law firms Mayer Brown LLP and Gross & Belsky LLP were co-counsel in this case.

For the new parody website:
http://www.weareunionsquare.org

For the full settlement agreement:
http://www.eff.org/files/filenode/usp_v_durkee/USP-Durkee-SettlementAgreement-signed.pdf

Contacts:

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

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

February 2, 2009

8200 Consumers Join EFF Campaign to Free Your Phone

San Francisco - The Electronic Frontier Foundation (EFF) submitted a petition to the U.S. Copyright Office today signed by more than 8200 people demanding that the office lift the legal cloud hanging over cell phone customers who modify their phones.

The petition was part of EFF's reply comment in the 2009 Copyright Office rulemaking, convened every three years to consider exemptions to the Digital Millennium Copyright Act's (DMCA) ban on circumvention of digital rights management (DRM) restrictions. The comments follow EFF's initial exemption requests, filed with the Copyright Office in December, that are aimed freeing cell phones from the software locks that stifle competition and cripple consumers. EFF also represents The Wireless Alliance, ReCellular and FlipSwap, phone recyclers and resellers that rely on phone unlocking to keep functional devices in the hands of consumers and out of landfills.

Cell phone manufacturers and service providers routinely use software locks on mobile phones to prevent customers from connecting to new service providers or running the software of their choosing. While hundreds of thousands of cell phone owners have modified their phones so they can use their devices the way they want to, the threat of litigation under the circumvention provisions of the DMCA threatens to drive this activity underground. For example, EFF's proposed exemptions would eliminate the risk of DMCA liability for those who "unlock" or "jailbreak" their iPhones.

"The DMCA is supposed to protect copyrighted works, not reduce competition and consumer choice," said EFF Civil Liberties Director Jennifer Granick. "Cell phone users need a clear message from the Copyright Office that modification is protected."

EFF also submitted a white paper explaining how Apple implements restrictions on the iPhone and T-Mobile implements restrictions on its Android G1 phone. Many of the petition signers also sent their own stories of frustration directly to the Copyright Office.

"Through our FreeYourPhone.org website, we heard a lot of stories of consumers and developers who want to innovate and create new tools for mobile phones," said EFF Intellectual Property Attorney Fred von Lohmann. "The DMCA shouldn't be used to prevent advances in cell phone technology. Who knows what exciting new feature you might not ever get to use because of the threat of litigation?"

In addition to the cell phone submissions, EFF also requested an exemption to protect the video remix culture currently thriving on Internet sites like YouTube. The filing asks for a DMCA exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial works.

The Copyright Office will hold public hearings on the DMCA exemption requests in Washington, DC, and California in the spring, and the final rulemaking order will be issued in October.

For EFF's full comments:
http://www.eff.org/files/filenode/dmca_2009/EFF2009replycomment_0.pdf

For more on the DMCA rulemaking:
http://www.eff.org/cases/2009-dmca-rulemaking

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

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

January 29, 2009

Despite Obama's Order for Openness, Americans Still Kept in the Dark About ACTA

Washington, D.C. - The Office of the United States Trade Representative (USTR) is withholding hundreds of documents about a secret intellectual property enforcement treaty currently under negotiation between the U.S. and more than a dozen other countries.

In a pending federal lawsuit, the Electronic Frontier Foundation (EFF) and Public Knowledge are demanding that background documents on the Anti-Counterfeiting Trade Agreement (ACTA) be released under the Freedom of Information Act (FOIA). But the USTR has claimed that more than 1300 pages should be withheld because they implicate national security or expose the USTR's deliberative processes. The USTR has released only 159 pages for public viewing.

ACTA raises serious concerns about citizens' civil liberties and privacy rights. The contents and text of ACTA remain secret, but a document leaked to the public last year shows that ACTA could include stronger criminal measures, increased customs border search powers, and requirements for Internet service providers to cooperate with copyright holders. Some public suggestions from content companies have included requiring ISPs to engage in filtering of their customers' Internet communications for potentially copyright-infringing material, mandatory disclosure of personal information about alleged copyright infringers, and adoption of "Three Strikes" policies requiring ISPs to automatically terminate customers' Internet access upon a repeat allegation of copyright infringement.

"ACTA could lead to new invasive monitoring of Internet communications by your ISP and raises serious potential due process concerns for Internet users," said EFF International Policy Director Gwen Hinze. "Because ACTA is to be adopted as an Executive Agreement, it will bypass normal processes of Congressional oversight. Therefore, it is crucial that citizens have access to information about its contents in a timely manner. The USTR's decision to withhold documents that citizens are entitled to see as a matter of law prevents citizens from evaluating ACTA's impact on their lives and expressing their opinions to their political leaders before it's a fait accompli."

Despite the vast amount of relevant information that was withheld, the documents that were released disclosed some interesting information about ACTA, including records revealing U.S. government policy that ACTA documents should only be shown to government officials or others who work closely with a country's consultation process. The records also show that the U.S. government intends to "hold ACTA documents in confidence for a fixed period after negotiations conclude." But not everyone has been kept in the dark about ACTA. Officials from the USTR met privately with the major U.S. proponents of the treaty: the Global Leadership Group of the International Chamber of Commerce's Business Action to Stop Counterfeiting and Piracy and the Coalition Against Counterfeiting and Piracy at least three times in 2008.

EFF and Public Knowledge first made their FOIA request of the USTR in June of 2008. After the agency dragged its feet in responding, EFF and Public Knowledge filed suit in federal court in Washington, DC, in September of 2008. EFF plans to ask the court to stay further action in the case pending the release of new guidelines by the Attorney General implementing President Obama's January 21 memorandum stating that all agencies "should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government."

"We are disappointed with the USTR's response so far," said Public Knowledge Staff Attorney Sherwin Siy. "With the guidance of this new policy, we hope that the USTR will reassess its less-than-forthcoming compliance with our FOIA request and provide the public with the much-needed transparency and accountability about this important global agreement."

For the significant documents released under FOIA:
http://www.eff.org/fn/directory/6661/328

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:

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

Eddan Katz
International Affairs Director
Electronic Frontier Foundation
eddan@eff.org

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

January 29, 2009

Public Deserves Inside Look at File-Sharing Lawsuit Campaign

Boston - The Electronic Frontier Foundation (EFF) urged a federal appeals court today to allow the live webcasting of a hearing in one of the thousands of lawsuits that have been brought against users of peer-to-peer file-sharing systems.

The District Court granted defendant Joel Tenenbaum's request to allow an upcoming hearing to be webcast on the website of the Berkman Center at Harvard. The record company plaintiffs have now asked the 1st U.S. Circuit Court of Appeals to block the webcast.

"The record companies have long maintained that they brought these lawsuits against ordinary users to start a national conversation about peer-to-peer file-sharing," said EFF Legal Director Cindy Cohn. "What better way is there for the public to learn what the record companies are doing than by seeing for themselves what happens in these lawsuits?"

In the amicus brief filed today, EFF -- representing a coalition of media and public interest nonprofits -- notes that the RIAA litigation campaign has elicited strong opinions and passions on both sides, making this case a good one for an initial experiment in webcasting federal district court proceedings. EFF's brief was also signed by Public.Resource.org and the Internet Archive, both of which have offered to host the webcast in addition to the Berkman Center.

Also joining EFF's coalition is Ben Sheffner of the "Copyrights & Campaigns" blog, who supports the views of copyright owners. Mr. Sheffner notes that, because he lives in Los Angeles, the availability of a live webcast would greatly enhance his ability to provide his readers with a full picture of what occurs at the hearing, without having to rely on accounts in other publications that he believes are biased against the plaintiffs.

Other signers to the EFF amicus brief include the Media Access Project, Free Press, and the California First Amendment Coalition.

The Recording Industry Association of America (RIAA) recently announced that it had stopped filing new lawsuits against individual file-sharers. Yet it is continuing to pursue thousands of ongoing lawsuits like the one against Mr. Tenenbaum in the federal courts. Over the last five years, more than 35,000 people have been targeted in the RIAA's litigation campaign.

For the full amicus brief:
http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf

For more on the RIAA's lawsuit campaign:
http://www.eff.org/riaa-v-people

Contact:

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

Corrected 1/29/09 to clarify that the Berkman Center does not represent Mr. Tenebaum. His counsel is the case is Charlie Nesson.

Related Issues:
January 28, 2009

Michigan State University Clears Student Government Leader

East Lansing, MI - A Michigan State University (MSU) student government leader has been cleared of any charges of wrongdoing after the school falsely labeled her a spammer for sending out a political email to faculty members. MSU has also agreed to revise its Network Acceptable Use Policy to ensure that it is fair and constitutional.

The Electronic Frontier Foundation (EFF) represented the student, Kara Spencer, after she was brought before a disciplinary committee for sending an email raising concerns about a controversial change in MSU's school calendar to approximately 400 faculty members. MSU's "acceptable use" email policy bans political statements sent to more than 20-30 recipients without prior approval of university officials.

EFF argued that the school's email policy was an unconstitutional restriction on the university community's free speech rights and had begun preparing a lawsuit on Ms. Spencer's behalf. EFF was referred the case by FIRE, the Foundation for Individual Rights in Education.

"We're pleased that MSU has reversed course and will not only drop the charge against Ms. Spencer, but will reconsider its flawed policies," said EFF Legal Director Cindy Cohn. "When a school's anti-spam policy requires students to get approval before they discuss school policy with school officials, it has plainly left the realm of protecting against spam and has violated the Constitution."

MSU will also work with Spencer as a member of the University Committee for Student Affairs to change the email policy so it will respect students' free speech rights. EFF has offered to advise as well.

"The email that I sent wasn't spam. It was part of an important conversation about university issues of common concern," said Spencer. "I'm pleased that MSU has finally recognized my right to express my views. Unconstitutional attempts to curb campus political activism aren't just illegal. They are counter-productive to universities' educational mission."

For previous coverage of this issue:
http://www.eff.org/deeplinks/2008/12/eff-fire-and-others-urge-michigan-state-respect-st

Contacts:

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

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

Related Issues:
January 15, 2009

Software Locks on Cell Phones Stifle Competition and Cripple Consumers

San Francisco - The Electronic Frontier Foundation (EFF) is asking for the public's help in its new campaign to free cell phones from the software locks that stifle competition and cripple consumers. The campaign's website is FreeYourPhone.org.

Hundreds of thousands of cell phone owners have modified their phones to connect to a new service provider or run the software of their choosing, and many more would like to. But the threat of litigation under the Digital Millennium Copyright Act (DMCA) has driven them underground.

The DMCA prohibits "circumventing" technical protection measures used to protect copyrighted works. But many cell phone manufacturers and service providers build these software locks to protect their business models instead of copyrighted material.

"Apple locks its iPhone to AT&T and prevents users from installing any software that has not been pre-approved by Apple," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Consumers need a DMCA exemption to lift the cloud of legal risk that otherwise serves only to reduce competition and consumer choice."

Every three years, the U.S. Copyright Office convenes a rulemaking to consider granting exemptions to the DMCA's ban on circumvention to mitigate the consumer harm. EFF has already filed exemption requests with the Copyright Office addressing the issues, but the rulemaking proceeding also accepts public comments about the proposals.

"Companies are using the DMCA to threaten customers out of exercising their consumer rights," said EFF Civil Liberties Director Jennifer Granick. "The Copyright Office needs to hear real stories about how these software locks frustrate consumers and developers."

On FreeYourPhone.org, people can sign EFF's petition to the Copyright Office and share their stories about cell phone frustrations. EFF will also help people officially submit those stories to the Copyright Office before the February 2 deadline. The Copyright Office will hold public hearings on the DMCA exemption requests in Washington, DC, and California in the spring, and the final rulemaking order will be issued in October.

For more on the Free Your Phone campaign:
http://www.FreeYourPhone.org

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

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

Related Issues:
January 14, 2009

Data Seizure Violates Constitution and Federal Law

San Francisco - The Electronic Frontier Foundation (EFF) and the ACLU of Northern California filed suit in federal court today to protect the privacy and free speech rights of two San Francisco Bay Area community organizations after the groups' computers were seized and the data copied by federal and local law enforcement. Both organizations, Long Haul and the East Bay Prisoner Support Group (EBPS), are publishers of information for social and political activists.

"We think the police should have treated us with the same respect due to any library whose public-access computers they suspected had been used for improper activity," said Jesse Palmer, a long-time participant in Long Haul operations. "Instead of asking for our assistance, they used their investigation as an excuse to break into Long Haul, search through our records, and seize our computers."

Long Haul is an all-volunteer collective that publishes a newspaper called Slingshot and provides community space, computer access, and a lending library of radical books to members of the public at its Infoshop in Berkeley, California. EBPS publishes a newsletter of prisoners' writings, distributes literature to prisoners, and occupies an office at Long Haul.

On August 27, 2008, University of California Police, the Alameda County Sheriff's Department and the Federal Bureau of Investigation (FBI) raided Long Haul's space in Berkeley, searching public and private rooms and cutting or unscrewing locks that protected private offices. The officers removed every computer in the building -- including those behind the locked doors of the Slingshot and EBPS offices -- even though the federal Privacy Protection Act specifically protects publishers from search and seizure except in the most narrow of circumstances.

"The Slingshot and EBPS computers were clearly marked and kept behind locked doors," said EFF Civil Liberties Director Jennifer Granick. "Yet the raid officers broke into the offices to take information these organizations collected and relied on to publish information to their readership. This is a blatant violation of federal law and the First and Fourth Amendments, interfering with the freedom of the press."

The search was not based on any allegations of wrongdoing on the part of Long Haul, EBPS or their members, and there have been no arrests. The seized computers were eventually returned, but investigators likely copied the data and continued their illegal search of the information.

"As long as the government keeps the copies they made of these hard drives, they are continuing to violate the privacy of everyone who wrote or stored a document on the computers." said Michael Risher, staff attorney at the ACLU of Northern California. "We filed this lawsuit to protect fundamental rights and to stop these illegal searches from happening in the future."

For the full complaint:
http://www.eff.org/files/filenode/longhaul_v_UC/longhaulcomplaint.pdf

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

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

Related Issues:
January 7, 2009

Patent Busting Project Now Six for Six

San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination of an illegitimate music patent from the U.S. Patent and Trademark Office (PTO). This was the sixth reexamination request filed by EFF's Patent Busting Project and the sixth time the PTO has granted EFF's request.

Seer Systems was awarded this patent for a system and method for joining different musical data types together in a file, distributing them over the Internet, and then playing that file. In the reexamination request, EFF, along with the law firm Day Casebeer Madrid & Batchelder, show that descriptions of this technology were published a number of times before Seer Systems made its claim—including in a book written by Seer's own founder and the named inventor of the patent, Stanley Jungleib.

"Mr. Jungleib encouraged others to use the techniques he described in his book and sought patent protection only after those ideas had entered the public domain," said EFF Senior Intellectual Property Attorney Michael Kwun. "It's unfortunate that Seer Systems didn't call Mr. Jungleib's book and the other prior art we cited to the PTO's attention before the patent issued."

Seer Systems now has the opportunity to file comments defending the patent, and then the PTO will determine whether to invalidate the patent. The PTO has narrowed or revoked roughly 70% of patents it has decided to reexamine.

"Unmeritorious patents can place significant barriers in the way of innovation in the digital age," said Paul Grewal of the Day Casebeer firm. "The PTO quite rightly concluded that there are substantial questions of patentability raised by our request, and we look forward to the PTO's ultimate decision on this patent."

Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School provided substantial assistance on this reexamination request, carrying out detailed research, preparing an initial claim chart, locating and analyzing a critical piece of prior art cited in the request, and drafting the prior art description that EFF posted on its website. The Seer patent being challenged is U.S. Patent No. 5,886,274, and the reexamination has been assigned the control number 90/009,299.

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. Five more patents are under review by the PTO due to the Patent Busting Project's efforts.

For the full reexamination order:
http://w2.eff.org/patent/wanted/seer/seer-reexam-granted.pdf

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

Contacts:

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

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

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December 22, 2008

Dismissal of Federal Lawsuit Brought by MBTA

Boston - Massachusetts Bay Transit Authority (MBTA) officials and three MIT student researchers announced today that, following the dismissal of a federal lawsuit brought by the MBTA against the MIT students, the parties agreed to work together to identify and help improve security in the MBTA's Automated Fare Collection System.

Pleased with the outcome, MBTA General Manager Daniel A. Grabauskas said, "This is a great opportunity for both the MBTA and the MIT students. As we continue to research ways to improve the fare system for our customers, we appreciate the cooperative spirit demonstrated by the MIT students."

"The best way to fix these problems is to approach them head on," said one of the students, RJ Ryan. "Now that we are on the same page, I am confident that we will be able to resolve the issues we discovered."

"We've always shared the goal of making the subway as safe and secure as can be," said student Zack Anderson. "I am glad that we can work with the MBTA to help the people of Boston, and we are proud to be a part of something that puts public interest first."

The MBTA and the researchers are working to make improvements to the fare collection system that will be as straightforward and inexpensive to address as possible.

The MIT students were represented in the lawsuit pro bono by the Coders' Rights Project of the Electronic Frontier Foundation (EFF). EFF was assisted in this case by the ACLU of Massachusetts Legal Director John Reinstein and Fish & Richardson attorneys Adam Kessel, Lawrence Kolodney, and Tom Brown.

For more on MBTA v. Anderson:
http://www.eff.org/cases/mbta-v-anderson

Contact:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Related Issues:
December 4, 2008

EFF Urges Court to Reject Appeal in Tiffany v. eBay

San Francisco - The Electronic Frontier Foundation (EFF) along with Public Citizen and Public Knowledge urged a U.S. court of appeals Wednesday to reject jewelry-maker Tiffany's attempt to rewrite trademark law and create new barriers for online commerce and communication.

Tiffany sued the online marketplace eBay, claiming that eBay should be held liable for trademark infringement when sellers offer counterfeit Tiffany goods on the eBay site. The evidence in the case showed that eBay quickly takes down listings when Tiffany sends notice that it believes a specific item is not genuine. However, Tiffany wants eBay to police listings on its own and to be held responsible for any counterfeit items it missed.

"Millions of Americans use sites like eBay and craigslist to buy and sell goods," said EFF Senior Intellectual Property Attorney Michael Kwun. "If Tiffany had its way, sites like eBay would be responsible for figuring out whether items its users are selling -- items eBay itself never sees -- are authentic or counterfeit. That's an impossible task."

A judge correctly rejected Tiffany's claims earlier this year. In an amicus brief filed with the 2nd U.S. Circuit Court of Appeals Wednesday, EFF asks the court to reject Tiffany's new attempts to expand trademark law.

"The Internet has created new opportunities for communication, and trademarks are an integral part of this exchange," said EFF Staff Attorney Corynne McSherry. "But if intermediaries have to take on the burden of policing trademarks, many Internet service providers will take the easy route and remove any posting that is even remotely suspicious. That would effectively quash the extraordinary growth of online commerce and speech."

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

For more on this case:
http://www.eff.org/cases/tiffany-v-ebay

Contacts:

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

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

December 2, 2008

EFF Seeks Exemptions for Video Remixes, Cell Phone Unlockers

San Francisco - The Electronic Frontier Foundation (EFF) filed three exemption requests with the U.S. Copyright Office today aimed at protecting the important work of video remix artists, iPhone owners, and cell phone recyclers from legal threats under the Digital Millennium Copyright Act (DMCA).

The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Every three years, the Copyright Office convenes a rulemaking to consider granting exemptions to the DMCA's ban on circumvention to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials.

One proposal filed by EFF is aimed at protecting the video remix culture currently thriving on Internet sites like YouTube. The filing asks for a DMCA exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial works. Hollywood takes the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.

"Remix is what free speech looks like in the 21st century, which is why thousands of noncommercial remix videos are posted to YouTube every day," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The DMCA wasn't intended to drive fair use underground."

Another proposal requests a DMCA exemption for cell phone "jailbreaking" -- liberating iPhones and other handsets to run applications from sources other than those approved by the phone maker. Hundreds of thousands of iPhone owners have "jailbroken" their iPhones in order to use applications obtained from sources other than Apple's own iTunes "App Store."

"It's not the DMCA's job to force iPhone users to buy only Apple-approved phone applications," said von Lohmann. "The DMCA is supposed to block copyright infringement, not competition."

EFF's third proposal asks for a renewal of an exemption previously granted for unlocking cell phones so that the handsets can be used with any telecommunications carrier. Carriers have threatened cell phone unlockers under the DMCA to protect their anti-competitive business models, even though there is no copyright infringement involved in the unlocking. Instead, the digital locks on cell phones make it harder to resell, reuse, or recycle the handset.

"Millions and millions of Americans replace their cell phones every year. EFF is representing three organizations that are working to make sure the old phones don't end up in the dump, polluting our environment," said EFF Civil Liberties Director Jennifer Granick. " Also, renewing this exemption will continue to help people who want to use their phones while traveling and will promote competition among wireless carriers."

The rulemaking proceeding will accept public comments regarding proposed exemptions until the deadline of February 2, 2009. The Copyright Office will then hold hearings in Washington, DC and California in Spring 2009. The final rulemaking order will be issued in October 2009.

For more on EFF's exemption requests:
http://www.eff.org/issues/dmca-rulemaking

For more on the anti-circumvention rulemaking:
http://www.copyright.gov/1201/

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

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

Related Issues:
December 1, 2008

Unconstitutional Law Cannot Shut Courthouse Door on Americans' Privacy Claims

San Francisco - On Tuesday, December 2, at 10 a.m., the Electronic Frontier Foundation (EFF) will challenge the constitutionality of a federal law aimed at granting immunity to telecommunications companies participating in illegal domestic surveillance.

At Tuesday's hearing, EFF will argue that the flawed FISA Amendments Act (FAA) improperly attempts to take 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 earlier this year, the FAA allows 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. Attorney General Michael Mukasey filed that classified certification with the court in September and is demanding that the cases be dismissed.

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. EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 46 outstanding lawsuits concerning the government's warrantless surveillance program.

Also Tuesday, in the afternoon, the court will hear the arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the government illegally wiretapped calls between the charity and its lawyers.

For more information about attending the hearing, please contact press@eff.org.

WHAT:
Hepting v. AT&T and other NSA telecommunications records lawsuits

WHEN:
Tuesday, December 2
10 a.m.

WHERE:
450 Golden Gate Ave., Courtroom 6
San Francisco, CA 94102

For more on EFF's case against AT&T:
http://www.eff.org/nsa/hepting

Contact:

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

Related Issues:
November 18, 2008

Parody Website Shut Down by Baseless Lawsuit Against Community Organizer

New York - A New York City community organizer is fighting back in court after her parody website challenging redevelopment efforts in New York City's historic Union Square was shut down with bogus claims of copyright infringement and cybersquatting.

The Electronic Frontier Foundation (EFF) is representing Savitri Durkee, an activist concerned with preserving the character of Union Square and Union Square Park. As one part of her education campaign, Durkee created a website parodying the official website of Union Square Partnership (USP), a group backing extensive redevelopment of the area. In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP then filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name.

EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.

"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil rights activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."

In the WIPO proceedings, USP has argued that Durkee's website copied elements of USP's website and that users are likely to be confused into thinking the parody site is actually USP's site.

"Ms. Durkee's site is a parody, so of course it mimicked USP's site to some extent. That's how parodies work," said EFF Staff Attorney Corynne McSherry. "The parody site is plainly a fair use and protected by the First Amendment. This is a case about censoring speech, not about infringement."

In addition to filing her answer and counterclaims, Durkee today filed a letter with the court asking for a prompt hearing on her fair use defense. Durkee asked the court to convene a conference as soon as possible to set a schedule for briefing and a hearing.

The law firms Mayer Brown LLP and Gross & Belsky LLP are co-counsel in this case.

For the full answer and counterclaim:
http://www.eff.org/files/filenode/usp_v_durkee/Answer%20and%20Counterclaims.pdf

For more on USP v. Durkee:
http://www.eff.org/cases/usp-v-durkee
Contacts:

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

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

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November 13, 2008

Battle Over Online Gambling Sites Puts Free Speech, Commerce at Risk

Frankfort, KY - The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) urged a Kentucky Court of Appeals Wednesday to vacate a lower court's order authorizing the seizure of more than 100 Internet domain names associated with websites operating around the globe. The seizure, and the lower court's exercise of jurisdiction over global domain names, threatens free speech across the Internet. In a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to "seize" 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country. Unless the sites screened out Kentucky users, the court held, the seizure order was proper.

In its amicus brief filed with the Court of Appeals on Wednesday in support of a writ vacating the judge's order, EFF, CDT, and the ACLU argue that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. The brief argues that the seizure order was invalid because it threatened to impede access to a broad range of materials protected by the First Amendment.

"The court's theory -- that a state court can order the seizure of Internet domain names regardless of where the site was registered -- is not only wrong but dangerous," said EFF Senior Staff Attorney Matt Zimmerman. "If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site's content is in some way inconsistent with local law, the laws of the world's most repressive regimes will effectively control cyberspace."

As part of his ruling, the judge in Kentucky held that the domain names could be seized if they refused to implement "geographic blocks" to prevent Kentucky users from accessing the material. However, no such reliable filters exist, and even poor ones cost thousands of dollars. Any order requiring their use would unconstitutionally burden First Amendment rights.

"If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," said John Morris, general counsel for CDT. "Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States."

"A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior," said David Friedman, ACLU of Kentucky General Counsel.

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

For more on this case:
http://www.eff.org/cases/commonwealth-kentucky-v-141-internet-domain-names

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
October 27, 2008

Search by State or County for Real-Time Voter Reports on Election Day

San Francisco - Reporters, bloggers, and voters across the country can monitor problems at the polls on Election Day on OurVoteLive.org, a project built and hosted by the Electronic Frontier Foundation (EFF) on behalf of Election Protection, the nation's largest nonpartisan voter protection coalition, and its toll-free voter-assistance hotline, 866-OUR-VOTE.

OurVoteLive.org collects and analyzes reports from calls to the 866-OUR-VOTE hotline, which is staffed by hundreds of volunteers across the country. Tested during the presidential primaries, the site is already documenting over a thousand examples per day of voters needing information or reporting problems such as registration and identification issues, difficulties with voting machines, and polling place accessibility issues. Over 200,000 calls are expected to come into the hotline and be documented on OurVoteLive.org through Election Day.

"Improved transparency in all aspects of the electoral process is critical to ensuring accurate results as well as diagnosing systemic problems and helping voters," said EFF Senior Staff Attorney Matt Zimmerman. "OurVoteLive.org is helping the Election Protection Coalition make that possible."

In addition to call incident data, OurVoteLive.org also features maps, nationwide trend information, and an active election issues blog that will highlight important election incidents as they develop.

"OurVoteLive.org will allow us to help more voters more effectively," said Jonah Goldman, director of the National Campaign for Fair Elections at the Lawyers' Committee for Civil Rights Under Law, which leads Election Protection. "We -- along with election officials and the media -- will be able track trends and identify problem areas quickly so that we can remove any barriers that voters face as they cast their ballots."

Election Protection has more than 100 partners at the national, state and local level and is providing live voter protection services now through Election Day across all 50 states. On November 4, Election Protection will mobilize tens of thousands of volunteers, including 10,000 legal volunteers to monitor polling places, educate voters, facilitate a dialogue with local and state officials, provide legal support to poll monitors, and answer the 1-866-OUR-VOTE voter services hotline -- a monumental undertaking designed to ensure smooth voting in November.

On Election Day, reporters who have questions about OurVoteLive.org or particular incidents reported on the site should contact Nell McGarity via email at press@ourvotelive.com.

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
October 27, 2008

Ten-Year Legacy of Harm to Fair Use, Free Speech

San Francisco - Ten years ago Tuesday, the Digital Millennium Copyright Act (DMCA) was signed into law. In a report released to mark the anniversary, the Electronic Frontier Foundation (EFF) documents the ways in which this controversial law has harmed fair use, free speech, scientific research, and legitimate competition.

"Unintended Consequences: Ten Years Under the DMCA" focuses on the most notorious aspect of the law: its ban on "circumventing" digital rights management (DRM) and "other technical protection measures." Instead of protecting against copyright infringement, this ban has routinely been used to stymie consumers, scientists, and small businesses. "Unintended Consequences" collects reports of the law's most egregious abuses over the last decade. In 2003, for example, Lexmark used the DMCA to block distribution of chips that allow the refilling of laser toner cartridges. In 2006, computer security researchers at Princeton delayed disclosure of a dangerous hidden program in some Sony CDs based on fears of DMCA liability. Meanwhile, the DMCA has not prevented digital piracy. DRM systems are consistently and routinely broken almost immediately upon their introduction.

"Over the last ten years, the DMCA has done far more harm to fair use, free speech, scientific research, and competition than it has to digital piracy. Measured from the perspective of the public, it's been a decade of costs, with no benefits," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The music industry has given up on DRM, and Hollywood now relies on DRM principally to stop innovation that it doesn't like. It's time for Congress to consider giving up on this failed experiment to back up DRM systems with misguided laws."

For "Unintended Consequences: Ten Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca

For more on the DMCA:
http://www.eff.org/issues/dmca

Contact:

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

Related Issues:
October 20, 2008

Public Interest Coalition Outlines Steps to Protect Online Political Speech

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups called on four television networks today to stop stifling vibrant political debate on the Internet with overreaching copyright claims and proposed two measures to help YouTube protect online political speech in the final days before America's presidential election.

In an open letter sent to CBS, the Christian Broadcasting Network (CBN), Fox, and NBC, the coalition asked the broadcasters to stop sending takedown requests based on copyright in short clips of news footage used in election-related videos. Last week, the McCain-Palin campaign contacted YouTube after CBS, CBN, and Fox targeted the campaign's videos for removal from YouTube. The Obama-Biden campaign has had at least one of its videos removed from YouTube in response to a similar copyright demand from NBC.

"The videos at issue include clips of news footage that last only a few seconds, used as part of constitutionally-protected political speech. This is not piracy, but fair use, no different from what Saturday Night Live and The Daily Show do every night," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Sending unfounded takedown notices is not only against the law, it also threatens to interfere with the vibrant political debate occurring on community video sites like YouTube. Remixing the news to make your point is what political speech looks like in the 21st century."

The networks' use of copyright law to remove the videos is especially disappointing as CBS, NBC-Universal, and Fox have all officially endorsed "User-Generated Content Principles" (www.ugcprinciples.com) aimed at accommodating legitimate fair use of their material.

In a separate open letter written to YouTube, the coalition suggests two measures to protect all video contributors from unfounded takedown demands. First, all "counter-notices" sent by YouTube users protesting copyright takedown demands should be immediately reviewed by YouTube staff, and the video immediately restored if it is a clear case of fair use. Second, once a user has already provided a valid counter-notice, then YouTube should also review any further takedown notice issued to any video posted to the account.

"In clear cases of fair use, YouTube should stand firmly behind the interests of its user community," said von Lohmann. "YouTube has nothing to fear by hosting videos that do not infringe anyone's copyright."

In addition to EFF, the coalition includes the American Civil Liberties Union (ACLU); the ACLU of Northern California; the Citizen Media Law Project at Harvard's Berkman Center; Anthony Falzone, the executive director of Stanford's Fair Use Project; the Center for Social Media, School of Communication, American University; the Program for Information Justice & Intellectual Property, American University Law School; and Public Knowledge.

For the full letter to the television networks:
http://www.eff.org/files/filenode/ip_freespeech/letter+to+networks.pdf

For the full letter to YouTube:
http://www.eff.org/files/filenode/ip_freespeech/letter+to+YouTube.pdf

For more on user-generated content and political speech:
http://www.eff.org/deeplinks/2008/08/election-approaches-do-your-part-protect-political

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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October 17, 2008

Unconstitutional Law Cannot Shut Courthouse Door on Americans' Privacy Claims

San Francisco - The Electronic Frontier Foundation (EFF) Thursday challenged the constitutionality of a law aimed at granting retroactive immunity to telecommunications companies that participated in the president's illegal domestic wiretapping program.

In a brief filed in the U.S. District Court in San Francisco, EFF argues that the flawed FISA Amendments Act (FAA) 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 into law earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that either the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court last month.

"The immunity law puts the fox in charge of the hen house, letting the Attorney General decide whether or not telecoms like AT&T can be sued for participating in the government's illegal warrantless surveillance," said EFF Senior Staff Attorney Kevin Bankston. "In our constitutional system, it is the judiciary's role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive's. The Attorney General should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans."

In the public version of his certification to the court, Attorney General Mukasey asserted that the government had no "content-dragnet" program that searched for keywords in the body of communications. However, the government did not deny the dragnet acquisition of the content of communications. In support of its opposition, EFF provided the court with a summary of thousands of pages of documents demonstrating the broad dragnet surveillance of millions of innocent Americans' communications. Eight volumes of exhibits accompanied the detailed summary, including eyewitness accounts and testimony under oath.

"We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law," said EFF Senior Staff Attorney Kurt Opsahl. "Intelligence agencies, telecoms, and the Administration want to sweep this case under the rug, but the Constitution won't permit it."

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 (NSA). EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

The constitutional challenge is set to be heard on December 2.

For the full brief:
http://www.eff.org/files/filenode/att/immunityoppocorrected.pdf

For the summary of evidence:
http://www.eff.org/files/filenode/att/section1006summary101608_0.pdf

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

Contacts:

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

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

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October 8, 2008

Illegitimate Patent Threatens New Innovations in Music Distribution

San Francisco - The Electronic Frontier Foundation (EFF) is challenging a bogus patent on Internet music files that could stifle new innovations in online music distribution.

Seer Systems was awarded this illegitimate patent for a system and method for joining different musical data types together in a file, distributing them over the Internet, and then playing that file. But in a reexamination request filed with the United States Patent and Trademark Office (USPTO) today, EFF and the law firm Day Casebeer Madrid & Batchelder show that descriptions of this technology were published a number of times before Seer Systems made its claim—including one in a book written by Seer's own founder and the named inventor of the patent, Stanley Jungleib.

"Mr. Jungleib extensively publicized techniques for music distribution in his book, and he did not seek a patent until after the methods entered the public domain," said EFF Senior Intellectual Property Attorney Michael Kwun. "Patenting technology that has already been publicly disclosed and widely adopted opens the door to lawsuits against legitimate innovators who are creating new products in good faith."

In fact, Seer Systems has already sued Beatnik, Inc., a company creating music software for mobile devices. Beatnik and Seer later entered into a settlement, which means Beatnik may well have paid money for a license to an invalid patent. Enforcement of the illegitimate Seer patent also threatens to compromise at least two public media standards, MPEG4 and XMF.

"The United States patent system is meant to encourage, not stifle, innovation," said Paul Grewal of Day Casebeer. "We are confident that the Patent Office will take a close look at these meritless claims by Seer Systems."

Day Casebeer attorneys Renee DuBord Brown and Andy Chan were also instrumental in researching and drafting the reexamination request. Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School provided assistance by drafting the prior art description that EFF posted on its website. The Seer patent being challenged is U.S. Patent No. 5,886,274.

The challenge to the Seer patent is part of EFF's Patent Busting Project, which combats the chilling effects of bad patents on the public and consumer interests. So far, the project has killed one patent covering a system and method for creating digital recordings of live performances. Four more reexaminations are underway by the USPTO due to EFF requests.

For the full reexamination request:
http://w2.eff.org/patent/wanted/seer/seer-request-reexamination.pdf

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

Contacts:

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

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

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October 1, 2008

EFF Releases Comprehensive Report on Five Years of File-Sharing Litigation

San Francisco - Five years after the Recording Industry of America (RIAA) began its massive litigation campaign against music fans suspected of sharing copyrighted music files over the Internet, the campaign has failed to get artists paid or reduce peer-to-peer (P2P) file sharing. Meanwhile, the legal foundation of the campaign is being questioned by several federal courts.

Since September of 2003, the recording industry has leveled legal threats against close to 30,000 American music fans. In a report released today, "RIAA v. The People: Five Years Later," the Electronic Frontier Foundation (EFF) presents a comprehensive overview of the RIAA's litigation campaign and concludes that it is hurting music fans and artists alike, without making a dent in unauthorized file-sharing. The report notes increasing skepticism by courts, academics and state watchdog groups about the RIAA's investigation tactics and legal theories. For example, judges have repeatedly rejected the RIAA's "making available" theory, the notion that merely having a music file in a "shared" folder on a computer constitutes copyright infringement, even if no one ever copies the file. Just last week, a federal judge ordered a new trial for Jammie Thomas, found liable for more than $220,000 because the jury had been instructed erroneously that liability could be premised on this "making available" theory.

"If the RIAA wants to keep suing hundreds of people each month and collecting these huge settlements, it can't take shortcuts," said EFF Staff Attorney Corynne McSherry. "It's not enough to say the law 'could have been' broken and demand thousands of dollars to make the accusation go away. The recording industry must prove its case and show that infringement actually occurred."

EFF's report collects evidence that suggests that the lawsuit campaign has not reduced file sharing. Downloading from P2P networks continues unabated, while some people simply choose to share files in ways that are harder to monitor, like burning and exchanging CDs among friends. EFF continues to call on the RIAA to help artists get paid for their creative work by embracing a voluntary collective licensing program, which would collect a reasonable, regular payment from music fans in exchange for the right to share music freely.

"More than 30,000 Americans have been targeted for legal action by the recording industry without putting a single penny into the pockets of any artists," said EFF Senior Staff Attorney Fred von Lohmann. "At the same time, everyone agrees that P2P file-sharing is more popular than ever. The RIAA's litigation campaign arbitrarily punishes tens of thousands of people for what tens of millions are doing. It's futile and unfair. It is high time that the recording industry let fans pay them a reasonable fee for the P2P file sharing that we all know has become a fact of Internet life."

For the full report "RIAA v. The People: Five Years Later":
http://www.eff.org/wp/riaa-v-people-years-later

For EFF's "A Better Way Forward" paper, discussing voluntary collective licensing alternatives:
http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing

For more on the litigation campaign:
http://www.eff.org/riaa-v-people

Contacts:

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

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

Related Issues:
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:

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