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Press Room

June 12, 2008

EFF Asks for Review of Flawed Appeals Court Ruling

San Francisco - The Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) urged an appeals court today to review a flawed decision allowing random and invasive searches of travelers' computers at the U.S. border.

The news media has reported extensively on these searches as well as the surprise and anger felt by American travelers when they are singled out for inspection. In a typical search, U.S. border officials will turn on the computer and then open and review files. If agents see something of interest, they may confiscate the computer, copy its contents, and sometimes provide a copy to the Department of Justice -- even when the traveler is not suspected of criminal activity. In some cases, travelers have never gotten their computers back from the government.

In an amicus brief filed today, EFF and ACTE asked the full 9th U.S. Circuit Court of Appeals to rehear and reverse an appeals panel decision in United States v. Arnold, which upheld this blanket search and seizure power. While the U.S. Supreme Court has ruled that customs and border agents can perform "routine" searches at the border without a warrant or even reasonable suspicion, these ongoing baseless searches of electronic devices at America's borders are unconstitutionally invasive.

"Searching a laptop is very different from searching a briefcase. Your computer contains a vast amount of information about your private life, including details about your family, your finances, and your health," said EFF Senior Staff Attorney Lee Tien. "All that information can be easily copied, transferred, and stored in government databases, just because you were chosen for a random inspection."

These suspicionless laptop searches and data seizures violate the Fourth Amendment's prohibition against unreasonable search and seizure. The unique nature of electronic information stored on computers and other portable devices requires the courts to recognize a standard that protects the privacy of Americans in the Information Age.

"The implications of unfettered data collection are staggering," said ACTE Executive Director Susan Gurley. "Border authorities may now systematically collect all information on every laptop computer, BlackBerry, or other device carried across our border. The government can then store and search all that data without any justification or oversight by any court. This simply does not square with the Fourth Amendment."

The EFF-ACTE amicus brief was prepared by Arent Fox LLP.

For the full amicus brief:
http://www.eff.org/files/filenode/US_v_arnold/amicusjune08.pdf

For more on US v. Arnold:
http://www.eff.org/cases/us-v-arnold

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Susan Gurley
Executive Director
Association of Corporate Travel Executives
susan@acte.org

Related Issues:
June 11, 2008

Ruling Affirms Right to Resell Promo CDs

San Francisco - A federal judge has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores.

Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs. At issue was whether the "promotional use only, not for sale" labels on those CDs could trump Augusto's right to resell materials that he owns, guaranteed by copyright law's "first sale" doctrine.

In dismissing UMG's lawsuit late Tuesday, U.S. District Court Judge S. James Otero ruled that the promo CDs are gifts distributed by UMG, as they are mailed free and unsolicited to thousands of people without any expectation or intention of their return. The first sale doctrine says that once the copyright owner sells or gives away a copy of a CD, DVD, or book, the recipient is entitled to resell that copy without further permission.

"This is a very important ruling for consumers, and not just those who buy or sell used CDs," said EFF Staff Attorney Corynne McSherry. "The right of first sale also protects libraries, used bookstores, and businesses that rent movies and videogames. This ruling affirms and protects the traditional balance between the rights of copyright owners and the rights of the public."

"It was clear to the court that these CDs were the property of Mr. Augusto, and therefore he had the right to resell them," said Joseph C. Gratz, attorney with Keker & Van Nest. "Copyright holders can't strip consumers of their first sale rights just by sticking a 'Not for Sale' label on a CD."

Mr. Augusto's victory comes almost one hundred years to the day after the United States Supreme Court's June 1, 1908 decision in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), established the first sale doctrine as a central part of American copyright law.

EFF has long fought efforts to override the first sale doctrine, arguing in 2004 that Lexmark should not be permitted to use a "label license" to prohibit the resale of laser printer toner cartridges.

For the full order:
http://www.eff.org/files/filenode/umg_v_augusto/LA07CV03106SJO-O.pdf

For more analysis:
http://www.eff.org/deeplinks/2008/06/liberation-day-promo-cds-victory-umg-v-augusto

Contacts:

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

Joseph C. Gratz
Attorney
Keker & Van Nest, LLP
jgratz@kvn.com

Related Issues:
June 9, 2008

Bogus Copyright Claims Used to Block YouTube Critique of Animal Mistreatment

Chicago - The Electronic Frontier Foundation (EFF) asked a federal court today to protect the free speech rights of an animal welfare group after its video critiques of animal treatment at rodeos were removed from YouTube due to sham copyright claims.

The group Showing Animals Respect and Kindness (SHARK) is a non-profit organization that videotapes and photographs rodeos in order to expose animal abuse, injuries, and deaths. SHARK posted more than two dozen videos to YouTube to publicize this animal mistreatment. But the Professional Rodeo Cowboys Association (PRCA) filed takedown demands for 13 of the videos under the Digital Millennium Copyright Act (DMCA), claiming the videos infringed their copyrights. YouTube consequently removed the videos and canceled SHARK's entire YouTube account, even though the PRCA has no copyright claim in live rodeo events.

"The PRCA may not like it when our clients raise tough questions about how animals are treated at rodeos, " said EFF Staff Attorney Corynne McSherry. "But this copyright claim is completely baseless, and made simply to block the public from seeing SHARK's controversial videos. The PRCA can't be permitted to silence its critics through a misuse of the law."

Because of the baseless copyright claims, SHARK's videos were unavailable to the public for approximately two weeks. In a lawsuit filed today, EFF asks the court to affirm that SHARK's videos do not infringe any of the PRCA's copyrights, and to hold the PRCA accountable for lodging these spurious claims.

"We can't let the PRCA continue to interfere with SHARK's free speech rights," said SHARK investigator Michael Kobliska. "It's simply not right for us to waste our time and money dealing with these baseless DMCA takedowns that block our message from getting out to the public."

This lawsuit 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 DMCA to demand that material be removed from the Internet without providing any proof of infringement. Furthermore, service providers -- fearful of monetary damages and legal hassles -- often comply with these requests without double-checking them, despite the cost to free speech and individual rights.

"We must stop the abuse of the DMCA," said EFF Intellectual Property Fellow Emily Berger. "Those bringing meritless copyright claims must be held accountable so that free speech can continue to flourish online."

Charles Lee Mudd Jr. of Mudd Law Offices in Chicago and the John Marshall Law School Center for Information Technology & Privacy Law are also representing SHARK in this suit.

For the full complaint in SHARK v. PRCA: http://www.eff.org/files/filenode/SHARK_v_PRCA/08cv3314comp.pdf

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

Contacts:

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

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

Michael Kobliska
SHARK Investigator
mkobliska@sharkonline.org

Related Issues:
June 9, 2008

Michael Kwun Brings Years of Litigation Experience to EFF's Legal Team

San Francisco - Michael Kwun has joined the Electronic Frontier Foundation (EFF) as a new Senior Intellectual Property Staff Attorney, bringing years of copyright, trademark, and patent litigation experience to EFF's legal team.

Kwun comes to EFF from Google. As the company's Managing Counsel, Litigation, he was responsible for defending Google in copyright cases about YouTube, Google Book Search, and Google Image Search; trademark cases about Google AdWords; and patent cases in connection with a wide variety of Google products.

"EFF has always fought to protect new innovations from bogus legal claims that stifle creativity, kill competition, and limit consumer choice," said Kwun. "I'm looking forward to tackling these important cases with the rest of EFF's legal team."

Before joining Google, Kwun was an associate at the law firm Keker & Van Nest, where he worked one of the early cases challenging Digital Millennium Copyright Act (DMCA) subpoenas issued by the Recording Industry Institute of America (RIAA). Kwun is also a long-time geek; his first publication was a short computer program that appeared in a Commodore computer enthusiast magazine in 1985.

"Michael brings a wealth of experience in copyright, trademark, and patent law to EFF," said EFF Executive Director Shari Steele. "We're so glad that he has chosen to join our legal team and help with this important work."

Kwun also sits on the board of directors of the East Bay Community Law Center, which provides legal services to the low-income community and hands-on clinical education for law students. Kwun received his J.D. degree from the Boalt Hall School of Law and his undergraduate degree from the University of Michigan.

Contacts:

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

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

June 5, 2008

Battle Over 'Spoof' Profiles Must Not Circumvent First Amendment, Federal Law

Cook County, IL - The Electronic Frontier Foundation (EFF) asked a judge in Illinois Wednesday to reject an attempt to identify an anonymous MySpace user who allegedly posted fake profiles of an Illinois official because the request would violate both the First Amendment and federal statute.

In May, Cicero Town President Larry Dominick asked a Cook County Circuit Court judge to order the disclosure of the identities of the author of two MySpace profiles that allegedly included defamatory comments and unnamed privacy violations. In its amicus brief, however, EFF argues that the petition violates the First Amendment right to remain anonymous until a litigant can demonstrate a viable legal claim.

"The First Amendment protects not only the right to speak but to speak anonymously," said EFF Senior Staff Attorney Matt Zimmerman. "If Mr. Dominick's claims are legitimate, he may be able to obtain the identifying information that he seeks. Until he meets his burden, however -- including, among other things, attempting to notify the author of this court action and identifying the allegedly defamatory statements at issue -- the court should not grant his request. The First Amendment requires courts to guard against attempts to unmask critics who have simply made statements litigants don't like, especially when such requests are made by elected officials."

In addition, federal law also bars Mr. Dominick's request. Passed to protect the communications and records of users of services such as MySpace, the Stored Communications Act categorically prohibits government entities from obtaining identifying customer information through the ordinary civil discovery process.

"Federal law imposes stiff penalties on government entities that violate the privacy of online users without meeting strict requirements," said Zimmerman. "So far, Mr. Dominick -- bringing this action in his official capacity as town president -- hasn't met those standards."

For the full amicus brief:
http://www.eff.org/files/filenode/dom_v_myspace/Motion%20AC%20filed.pdf

For more on this case:
http://www.eff.org/cases/dominick-v-my-space

Contact:

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

Related Issues:
May 23, 2008

Latest Proposal Even Worse Than the Last

Washington, D.C. - The latest Republican proposal to amend foreign intelligence surveillance law was announced yesterday by Senator Kit Bond , and included a purported "compromise" on the issue of whether telephone companies that illegally assisted in the government's warrantless wiretapping program should be granted immunity from lawsuits such as the Electronic Frontier Foundation's (EFF's) lawsuit against AT&T.

"The purported immunity 'compromise' announced on Thursday by Senator Bond is a pure sham that's even worse than the original immunity provision passed by the Senate," said EFF Senior Staff Attorney Kevin Bankston. "The stacked-deck immunity determination to be made by the court apparently still doesn't include any meaningful review of the telecoms' conduct or the legality of their cooperation with the NSA, simply a review of whether the companies got a piece of paper saying that the president authorized the surveillance. And the deck would be stacked even more by the proposed transfer to the FISA court -- the most conservative and secretive federal court in the nation. Bottom line: it's still immunity, and this so-called compromise concedes nothing."

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance. There are nearly 40 legal cases currently pending in the Northern District of California courts that have arisen from the warrantless surveillance.

For more on Senator Bond's proposal:
http://www.eff.org/files/filenode/nsaspying/Bond%20offer.pdf
http://ap.google.com/article/ALeqM5hJKgeE0Z-SivATjok-utYBdh9wDwD90R3PT00

For more on Hepting v. AT&T:
http://www.eff.org/cases/hepting

Contact:

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

Related Issues:
May 7, 2008

Gag Order Lifted on Internet Archive, Allowing Founder to Speak Out for First Time

San Francisco - The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive's founder to speak out for the first time about his battle against the record demand.

"The free flow of information is at the heart of every library's work. That's why Congress passed a law limiting the FBI's power to issue NSLs to America's libraries," said Brewster Kahle, founder and Digital Librarian of the Internet Archive. "While it's never easy standing up to the government -- particularly when I was barred from discussing it with anyone -- I knew I had to challenge something that was clearly wrong. I'm grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands."

The NSL was served on the Archive -- a digital library recognized by the state of California -- and its attorneys in November of 2007. The letter asked for personal information about one of the Archive's users, including the individual's name, address, and any electronic communication transactional records pertaining to the user. Kahle, who is also a member of EFF's Board of Directors, decided to fight the NSL because it exceeded the FBI's limited authority to issue such demands to libraries.

The Archive responded to the letter by handing over only publicly available documents and simultaneously filing a lawsuit challenging the letter. This lawsuit is the first known challenge to an NSL served on a library since Congress amended the national security letter provision in 2006 to limit the FBI's power to demand records from libraries.

The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive's Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI's misuse of NSLs.

"This is a great victory for the Archive and also the Constitution," said Melissa Goodman, staff attorney with the ACLU. "It appears that every time a national security letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records. In the absence of much needed judicial oversight – and with recipients silenced and the public in the dark – there is nothing to stop the FBI from abusing its NSL power."

"A miscarriage of justice was prevented here because the Archive decided to fight the unlawful demand for information and unconstitutional gag," said EFF Staff Attorney Marcia Hofmann. "The big question is, how many other improper NSLs have been issued by the FBI and never challenged?"

NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or "gagged," from disclosing that they have received the letters. The ACLU has challenged this Patriot Act statute in federal court in two other cases where the judges found the gags unconstitutional: one involving an Internet Service Provider (ISP); the second a group of librarians. In the ISP case, the district court invalidated the entire NSL statute. The U.S. Court of Appeals for the Second Circuit is expected to hear oral arguments in the government's appeal of that case next month.

Since the Patriot Act was passed in 2001, relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase, to nearly 200,000 between 2003 and 2006. EFF's investigations have uncovered multiple NSL misuses, including an improper NSL issued to North Carolina State University.

Last year Representative Jerrold Nadler (D-NY) introduced H.R. 3189, the "National Security Letters Reform Act of 2007." Senator Russell Feingold (D-WI) introduced a Senate bill of the same name (S. 2088). Both bills are aimed at narrowing the statute by enacting limits on when and how NSLs can be used and bringing the gag order provision in line with the Constitution.

In addition to Goodman and Hofmann, attorneys on the case are Jameel Jaffer and Danielle Tully of the ACLU National Security Project, Ann Brick of the ACLU of Northern California, and Kurt Opsahl of EFF.

For the newly unsealed documents (still partially redacted):
http://www.eff.org/cases/archive-v-mukasey?docs

For more information about this case:
http://www.eff.org/cases/archive-v-mukasey

For more information on NSLs:
http://www.eff.org/issues/foia/07656JDB

Contacts:

For Brewster Kahle:
Paul Hickman
Internet Archive
info@archive.org

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

James Freedland or Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org

May 2, 2008

Federal Law Protects Popular User-Created Encyclopedia From Liability

San Francisco - The Electronic Frontier Foundation (EFF) and the law firm of Sheppard Mullin Richter & Hampton Thursday filed a motion to dismiss a lawsuit brought against the operator of the popular online encyclopedia Wikipedia, arguing that federal law immunizes it against suits over statements made by its users.

Literary agent Barbara Bauer filed a complaint in New Jersey Superior Court in January against Wikipedia posters as well as the site itself, claiming in part that the Wikimedia Foundation was liable for statements identifying her as one the "dumbest of the twenty worst" agents and that she had "no documented sales at all." In court papers filed Thursday, Wikimedia argues that under Section 230 of the Communications Decency Act, operators of "interactive computer services" such as Wikipedia cannot be held liable for users' comments. In addition, Wikimedia argues that the statements are protected speech under the First Amendment and New Jersey law.

The ability to utilize the collaborative input of its users without fear of costly lawsuits is essential to Wikipedia's ongoing success, said Wikimedia Foundation General Counsel Mike Godwin.

"We provide a platform through Wikipedia for smart citizens to give their knowledge back to a larger culture," Godwin said. "Our ability to offer citizens that platform is what's at stake in this case."

Since it was signed into law over a decade ago, courts across the country have consistently applied the protections of Section 230 broadly, fulfilling Congress' intent "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation."

"Congress passed Section 230 of the Communications Decency Act in order to protect websites' operators like Wikipedia from suits like this one," said James Chadwick of Sheppard Mullin. "It's simple but it's fundamental: Congress has decided that Internet censorship isn't the answer, so websites aren't liable for statements posted by their users."

Section 230's blanket protection of sites like Wikipedia does not mean that alleged defamation on the Internet cannot be challenged in court. Instead, the law requires that litigants direct their efforts at the speakers themselves and not the forums where statements were made.

"Wikipedia continues to be a tremendous resource for people around the globe," added EFF Senior Staff Attorney Matt Zimmerman. "Without strong liability protection, it would be difficult for Wikipedia to continue to provide a platform for user-created encyclopedia content."

For the full motion to dismiss: http://www.eff.org/files/filenode/wikimedia/motiontoquashmemo-wikimedia.pdf

Contacts:

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

Mike Godwin
General Counsel
Wikimedia Foundation
mgodwin@wikimedia.org

James Chadwick
Partner
Sheppard Mullin Richter & Hampton
jchadwick@sheppardmullin.com

Related Issues:
May 1, 2008

Broad Coalition Urges Hearings on Intrusive Search and Seizure of Electronic Devices

San Francisco - The Electronic Frontier Foundation (EFF) and a broad coalition, including civil rights groups, professional associations and technologists, called on Congress today to hold oversight hearings on the Department of Homeland Security's search and seizure of electronic devices at American borders.

The press has widely reported disturbing stories about U.S. citizens subject to intrusive searches of their laptops and cell phones. But a recent court decision found that customs officials can search travelers' computers at the border without suspicion or cause. In a letter sent to the House and Senate Homeland Security and Judiciary committees today, the coalition urges lawmakers to consider passing legislation to prevent abusive search practices by border agents and to protect all Americans from suspicionless digital border inspections.

"Our computers, cell phones, and other electronic devices hold a vast amount of personal information like financial data, health histories, and personal emails and letters," said EFF Staff Attorney Marcia Hofmann. "In a free country, the government cannot have unlimited power to read, seize, and store this information without any oversight."

So far, the Department of Homeland Security has refused to release its policies and procedures for conducting these intrusive searches. EFF and the Asian Law Caucus have filed suit against the Department of Homeland Security to obtain the information through the Freedom of Information Act.

"Your privacy could be at risk even if you don't travel yourself. Your financial institution, your insurer, and other enterprises hold extensive personal data about you and your family," said EFF Senior Staff Attorney Lee Tien. "If agents of those groups travel internationally, your information could be exposed to officials at the border or potentially copied and stored in government databases. Americans should know how and why electronic data is seized and kept by the government, and who is able to access it at the border and in the years afterwards."

In addition to EFF, the coalition signing today's letter includes more than 40 organizations and individuals, including the Association for Corporate Travel Executives, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Rutherford Institute, and prominent technologists such as Bruce Schneier and Whitfield Diffie.

For the full letter to Congress:
http://www.eff.org/press/archives/2008/05/01/border-search-open-letter

For more on EFF's suit on border searches:
http://www.eff.org/cases/foia-litigation-border-searches

Contacts:

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

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

April 29, 2008

EFF Outlines Five Steps to Redress DRM Debacle

San Francisco - The Electronic Frontier Foundation (EFF) is urging Microsoft Corporation to fix the problems it will cause when it shuts down the MSN Music validation servers, making it impossible for customers to transfer their music files to new computers or even upgrade their operating system.

In an open letter sent to Microsoft Chief Executive Officer Steve Ballmer today, EFF outlines five steps Microsoft must take to make things right for MSN Music customers -- including a issuing a public apology, providing refunds or replacement music files, and launching a substantial publicity campaign to make sure all customers know their options.

"MSN Music customers trusted Microsoft when it said that this was a safe way to buy music, and that trust has been betrayed," said EFF Staff Attorney Corynne McSherry. "If Microsoft is prepared to treat MSN Music customers like this, is there any reason to suppose that future customers won't get the same treatment?"

MSN Music sold song downloads encumbered with digital rights management (DRM), allowing the music to be played only on approved devices. If you upgraded your computer or operating system, you needed to "reauthorize" your music files with MSN Music's DRM server. But last week, Microsoft announced that it would deactivate those servers because of the complexity of maintaining the technology -- meaning that customers face losing the ability to play their purchased music if they get a new computer or if the hard drive crashes on the old one. Microsoft's only suggestion for customers so far is to export all purchases onto a CD and then recopy it back onto new computers.

"Microsoft is asking its customers to spend more time, labor, and money to make degraded copies of music that was purchased in good faith," said EFF Executive Director Shari Steele. "This outcome was easily foreseeable from the moment Microsoft chose to wrap MSN Music files in DRM. Microsoft customers should not have to pay for Microsoft's bad business decisions."

EFF's letter also calls on Microsoft to eliminate DRM from its Zune music service now -- or at least to publicly commit to compensating future customers for the inevitable future DRM debacles.

"With MSN Music, Microsoft has admitted just how expensive, clumsy, and unfair DRM is. It's time for Microsoft to reject this sloppy technology, and for customers to demand something better," McSherry said.

For the full open letter:
http://www.eff.org/press/archives/2008/04/28/microsoft-open-letter

Contact:

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

Related Issues:
April 15, 2008

Improper NSL Issued Upon the 'Advice and Direction of FBIHQ'

San Francisco - The Electronic Frontier Foundation (EFF) has found that the Federal Bureau of Investigation (FBI), which claims that National Security Letters (NSLs) take too long and that it needs the authority to conduct surveillance without judicial oversight, delayed its own investigation of a student suspected of links to terrorism by employing an improper NSL to seek information on the suspect, at the direction of FBI Headquarters. The FBI failed to report the misuse for almost two years.

EFF's report comes as the House Judiciary Committee prepares for a Tuesday hearing on the misuse of NSLs. The Senate Judiciary Committee will hold another hearing on Wednesday.

"This report raises important questions about the FBI's use of these very powerful investigative tools," said EFF Senior Staff Attorney Kurt Opsahl. "Congress should determine why FBI headquarters insisted on an improper NSL instead of using the appropriate tools, and why the FBI failed to report the misuse for almost two years."

In the report, EFF used documents obtained through a Freedom of Information Act (FOIA) request coupled with public information to detail the bizarre turns in the FBI's investigation of a former North Carolina State University student. Over the span of three days in July of 2005, FBI documents show that the bureau first obtained the educational records of the suspect with a grand jury subpoena. However, at the direction of FBI headquarters, agents returned the records and then requested them again through an improper NSL.

As expanded by the PATRIOT Act, the FBI can use NSLs to get private records about anyone's domestic phone calls, e-mails and financial transactions without any court approval -- as long as it claims the information could be relevant to a terrorism or espionage investigation. However, NSL authority does not allow the government to seek educational records, and the university refused the request. The FBI finally obtained the documents again through a second grand jury subpoena. Later in July of 2005, FBI Director Robert Mueller used the delay in gathering the records as an example of why the FBI needed administrative subpoena power instead of NSLs so investigations could move faster.

"The FBI consistently asks for more power and less outside supervision," said Opsahl. "Yet here the NSL power was misused at the direction of FBI headquarters, and only after review by FBI lawyers. Oversight and legislative reforms are necessary to ensure that these powerful tools are not abused."

Report on the Improper Use of an NSL to NC State University:
http://www.eff.org/issues/foia/report-nsl-ncstate

Key FBI documents:
http://www.eff.org/files/filenode/07656JDB/charlotte.pdf

For more on National Security Letters:
http://www.eff.org/issues/foia/07656JDB

Contact:

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

April 8, 2008

EFF Argues That Labels Don't Trump Right to Resell

Los Angeles - The Electronic Frontier Foundation (EFF) and San Francisco law firm Keker & Van Nest filed briefs in federal court Monday on behalf of eBay seller Troy Augusto, defending his right to resell promotional CDs ("promo" CDs) that he buys from secondhand stores in the Los Angeles area.

Augusto, who does business as "Roast Beast Music" on eBay, was sued in May 2007 by Universal Music Group (UMG), the largest record company in the world, for 26 eBay auction listings involving UMG promo CDs. At issue is whether the "promotional use only, not for resale" labels on these CDs can trump a consumer's right to resell copyrighted materials that they own, guaranteed by copyright law's "first sale" doctrine.

For decades, major labels have distributed promo CDs for free to tastemakers and music industry insiders in an effort to create buzz for upcoming releases. These promo CDs often make their way into secondhand stores, where Augusto purchases them for resale on eBay. UMG stamps its promo CDs with labels declaring that the CDs may not be resold and remain the property of UMG. The "first sale" doctrine in copyright law, however, makes it clear that once the copyright owner sells or gives away a CD, DVD, or book, the recipient is entitled to resell it without needing further permission. The summary judgment brief filed Monday argues that UMG gives up ownership of these promo CDs when it mails them unsolicited to thousands of people without any intention of their return. Accordingly, the first sale doctrine permits purchasers to resell these CDs.

"If UMG is able to stop resale of CDs just by putting 'not for resale' labels on them, then there is nothing to stop other restrictive labels from appearing on CDs, books, and DVDs," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Record companies are not entitled to strip consumers of their first sale rights simply by putting labels on their products."

A hearing on the motion for summary judgment is expected in early May 2008.

For the full brief filed Monday:
http://www.eff.org/files/filenode/umg_v_augusto/AugustoMSJBrief.pdf

For more on UMG v. Augusto:
http://www.eff.org/cases/umg-v-augusto

Contacts:

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

Joseph C. Gratz
Attorney
Keker & Van Nest, LLP
jgratz@kvn.com

Related Issues:
April 8, 2008

EFF Argues Against Dismissal of Al-Haramain v. Bush

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge Monday to allow an important government surveillance lawsuit to have its day in court, despite the government's attempt to bury the case using the state secrets privilege.

The case is Al-Haramain Islamic Foundation v. Bush, which alleges that federal agents illegally wiretapped calls between the charity and its lawyers. The government has asked U.S. District Court Judge Vaughn Walker to dismiss the case, contending that the litigation jeopardizes state secrets. But in an amicus brief filed Monday, EFF argues that the Foreign Intelligence Surveillance Act (FISA) was written to allow cases like this one to proceed with appropriate security precautions.

"Federal surveillance law already provides clear procedures that allow cases like Al-Haramain v. Bush to proceed fairly and securely, and those procedures trump the Administration's claims of blanket secrecy," said EFF Senior Staff Attorney Kurt Opsahl. "By trying to use the state secrets privilege as a shield against any litigation over the legality of its warrantless wiretapping, the administration is essentially telling the other branches 'just trust us.' But when Congress passed FISA, it entrusted judges with the responsibility of deciding the legality of the executive branch's surveillance operations."

This is the government's second attempt to dismiss the Al-Haramain case. The first motion to dismiss reached the 9th U.S. Circuit Court of Appeals, which returned the case to Judge Walker's court to consider the FISA issue.

Judge Walker is also the presiding judge in Hepting v. AT&T -- EFF's class-action lawsuit accusing the telecommunications company of violating customers' rights by illegally assisting the National Security Agency in widespread domestic surveillance.

For the full amicus brief:
http://www.eff.org/files/filenode/att/alharamainamicus1806.pdf

For more on Al-Haramain v. Bush:
http://www.eff.org/cases/al-haramain

Contact:

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

Related Issues:
April 7, 2008

Judge Orders Government to Provide Documents in 17 Days

San Francisco - The Electronic Frontier Foundation (EFF) won another battle against the government Friday over the release of information about a campaign to change federal surveillance law.

A federal judge ordered the Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI) to provide to EFF by April 21, 2008, records about telecom industry lobbying of their offices.

Congress is currently considering granting immunity to telecommunications companies that participated in unlawful electronic surveillance on millions of ordinary Americans as part of changes to the Foreign Intelligence Surveillance Act (FISA). Officials at the DOJ and ODNI have been vocal supporters of the immunity proposal. Using the Freedom of Information Act (FOIA), EFF asked the DOJ and ODNI for any documents reflecting telecom carriers' efforts to avoid legal responsibility for their role in the government's surveillance operations, but the agencies failed to comply with EFF's requests.

"We went to court over the release of these documents because they could play a critical role in the national debate over telecom immunity. Denying Americans access to this information is not only unconscionable, but also illegal," said EFF Staff Attorney Marcia Hofmann. "We're pleased the judge recognized that time is of the essence here and ordered these agencies to follow the law."

In November, another federal judge ordered ODNI to comply with a similar EFF request. Documents released as a result of that case detailed high-level battles over changes to FISA, featuring key members of Congress and Director of National Intelligence Mike McConnell.

EFF also represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance. There are nearly 40 legal cases that have arisen from the warrantless surveillance currently pending in the Northern District of California courts.

For the judge's full order:
http://www.eff.org/files/filenode/foia_C0705278/040408_order.pdf

For more on EFF v. ODNI and DOJ:
http://www.eff.org/issues/foia/cases/C-07-05278

For more on Hepting v. AT&T:
http://www.eff.org/nsa

Contact:

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

Related Issues:
April 1, 2008

Agencies Fail to Release Records on Telecom Lobbying Activity

San Francisco - On Friday, April 4, at 9 a.m., the Electronic Frontier Foundation (EFF) will urge a federal judge to speed the government's release of information about a campaign to change federal surveillance law to benefit telecommunications companies.

Congress is currently considering granting immunity to telecoms that participated in unlawful electronic surveillance on millions of ordinary Americans. But the Office of the Director of National Intelligence (ODNI) and the Department of Justice (DOJ) have failed to comply with a Freedom of Information Act (FOIA) request for documents reflecting telecom carriers' efforts to avoid legal responsibility for their role in the government's surveillance operations.

U.S. District Judge Jeffrey S. White has already issued a tentative ruling granting EFF's request for a preliminary injunction against the government. In November, another federal judge ordered ODNI to comply with a similar EFF request.

EFF also represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance.

WHAT:
EFF v. ODNI and DOJ

WHEN:
9 a.m.
Friday, April 4

WHERE:
U.S. District Court, Northern District of California
Courtroom 2, 17th Floor
450 Golden Gate Ave.
San Francisco CA

For the judge's tentative ruling:
http://www.eff.org/files/filenode/foia_C0705278/033108_tentative_ruling.pdf

For more on EFF v. ODNI and DOJ:
http://www.eff.org/issues/foia/cases/C-07-05278

For more on Hepting v. AT&T:
http://www.eff.org/nsa

Contacts:

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

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

Related Issues:
March 20, 2008

Secrecy Surrounding Demands for Private Records Enables Widespread Misuse

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

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

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

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

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

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

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

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

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

Contacts:

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

Kristin Adair
Staff Attorney
National Security Archive

March 14, 2008

Bill Would Allow Spying Cases to Proceed Fairly and Securely

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

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

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

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

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

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

Contacts:

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

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

March 12, 2008

Fifth Successful Result for Patent Busting Project

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

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

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
March 11, 2008

Supports Provision Allowing Cases to Proceed Fairly and Securely

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

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

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

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

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

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

Contact:

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

March 6, 2008

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

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
March 3, 2008

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

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

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

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

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

WHAT:
Atlantic Records, et al. v. Howell

WHEN:
Wednesday, March 5, 2008
2pm

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

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

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

Contact:

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

February 29, 2008

First Amendment Rights of Internet Users Upheld in Today's Hearing

San Francisco - A federal district court judge in San Francisco today rescinded a controversial order that disabled the "wikileaks.org" domain name which had -- until two weeks ago -- pointed to Wikileaks, a website designed to give whistleblowers a forum for posting materials of public concern.

This week, the Electronic Frontier Foundation (EFF) moved to intervene in the case, along with the American Civil Liberties Union (ACLU), and the American Civil Liberties Union Foundation of Northern California and the Project on Government Oversight (POGO). In a hearing in federal court today, EFF and its fellow intervenors and amici argued that the order infringed on the First Amendment rights of Internet users who have an interest in accessing material of public concern on the site. Ruling from the bench, Judge Jeffrey White cited concerns about the First Amendment, the effectiveness of disabling the wikileaks.org domain name, and the court's own jurisdiction over the case as reasons to dissolve his previous orders.

"We're very pleased that Judge White recognized the serious constitutional concerns raised by his earlier orders," said EFF Senior Staff Attorney Matt Zimmerman. "Attempting to interfere with the operation of an entire website because you have a dispute over some of its content is never the right approach. Disabling access to an Internet domain in an effort to prevent the world from accessing a handful of widely-discussed documents is not only unconstitutional -- it simply won't work."

Wikileaks permits third parties to post corporate and government documents that they believe expose wrongdoing. For example, in the past year individuals have posted materials documenting alleged human rights abuses in China and political corruption in Kenya.

The lawsuit began earlier this month, when Swiss bank Julius Baer filed suit against Wikileaks for hosting allegedly leaked documents regarding personal banking transactions of Julius Baer customers. Also sued was Wikileaks' domain name registrar, Dynadot LLC. On February 15, following a stipulation between Julius Baer and Dynadot, the court issued a permanent injunction, disabling the wikileaks.org domain name and preventing that domain name from being transferred to any other registrar.

In addition to dissolving the permanent injunction, which permits the wikileaks.org domain name to be reactivated, the court also declined to extend a previous temporary restraining order requiring Wikileaks to disable access to 14 disputed Julius Baer documents.

Joining the EFF, ACLU, and POGO motion to intervene was Wikileaks user Jordan McCorkle. The papers were filed in consultation with and on behalf of the intervenors by Steven Mayer of the law firm of Howard Rice Nemerovski Canady Falk & Rabkin. Other attorneys on the case include Christopher Kao and Shaudy Danaye-Elmi of Howard Rice; Zimmerman, Cindy Cohn, and Kurt Opsahl of EFF; and Aden Fine and Ann Brick of the ACLU and ACLU-Northern California, respectively.

For the full order:
http://www.eff.org/files/filenode/baer_v_wikileaks/wikileaks102.pdf

For more on the Wikileaks case:
http://www.eff.org/cases/bank-julius-baer-co-v-wikileaks

Contact:

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

Related Issues:
February 27, 2008

Domain Name Shutdown Harms First Amendment Right to Access Information

San Francisco - The Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and the American Civil Liberties Union Foundation of Northern California (ACLU-Northern California) Tuesday filed a motion to intervene in a lawsuit where a federal judge ordered the disabling of one of the domain names associated with "Wikileaks," a website designed to give whistleblowers a forum for posting materials of public concern.

In early February, Swiss bank Julius Baer filed suit in federal district court against Wikileaks for hosting 14 allegedly leaked documents regarding personal banking transactions of Julius Baer customers. Also sued was Wikileaks' domain name registrar, Dynadot LLC. On February 15, following a stipulation between Julius Baer and Dynadot, the court issued a permanent injunction, disabling the wikileaks.org domain name and preventing that domain name from being transferred to any other registrar.

"Dynadot's private agreement to disable access to its customer's domain name -- and the court's endorsement of that agreement -- raise serious First Amendment concerns," EFF Senior Staff Attorney Matt Zimmerman. "This unwarranted injunction should remind everyone who hosts critical information on the Web that such information may only remain accessible as long as your service provider or registrar is willing to stand up for you against obviously overreaching legal attacks."

Wikileaks permits third parties to post corporate and government documents that they believe expose wrongdoing. For example, in the past year individuals have posted materials documenting alleged human rights abuses in China and political corruption in Kenya. The court's order effectively prevents readers who are only familiar with Wikileaks through the wikileaks.org domain name from accessing any material on the site.

"Julius Baer's private dispute regarding a former employee's alleged violation of a confidentiality agreement does not warrant this attempt to block access to all material hosted on Wikileaks," said Zimmerman. "The First Amendment rights of readers who have a legitimate interest in the materials posted on the website simply cannot be treated as acceptable collateral damage to the bank's claims."

In the papers filed Tuesday, the intervenors -- including the EFF, the ACLU, the Project on Government Oversight (POGO), and Wikileaks user Jordan McCorkle -- asked the court for permission to intervene in order to dissolve the injunction disabling the wikileaks.org domain name. The papers were filed in consultation with and on behalf of the intervenors by Steven Mayer of the law firm of Howard Rice Nemerovski Canady Falk & Rabkin. Other attorneys on the case include Christopher Kao and Shaudy Danaye-Elmi of Howard Rice; Zimmerman, Cindy Cohn, and Kurt Opsahl of EFF; and Aden Fine and Ann Brick of the ACLU and ACLU-Northern California, respectively.

At 9:00 a.m. on Friday, February 29, a federal judge in San Francisco will hear arguments regarding a related issue: whether to extend a temporary restraining order aimed at preventing the further distribution of the 14 disputed Julius Baer documents. A hearing to address Tuesday's motion to intervene and subsequent motion to dissolve the domain name permanent injunction has not yet been scheduled.

For information regarding the February 29 hearing, please contact press@eff.org.

For the full motion to intervene:
http://www.eff.org/files/filenode/baer_v_wikileaks/motiontointervene.pdf

For more on this case:
http://www.eff.org/cases/bank-julius-baer-co-v-wikileaks

Contact:

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

Related Issues:
February 26, 2008

DOJ's Top Privacy Lawyer Left Government Post for Job with Online Giant

Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit against the Department of Justice (DOJ) today, demanding information about communications between the DOJ's former top privacy official and Google, the official's current employer.

Jane C. Horvath was named the DOJ's first Chief Privacy and Civil Liberties Officer in February of 2006. At that time, Google was fighting a massive DOJ subpoena asking for the text of every query entered into the search engine over a one-week period. The DOJ request -- part of a court battle over the constitutionality of a law regulating adult materials on the Internet -- ignited a national debate about Internet privacy.

The DOJ later scaled back its request, and a judge eventually allowed access to only 5000 random Google search queries. In a subsequent news article, Horvath was publicly critical of the DOJ's initial subpoena, saying she had privacy concerns about the massive request for information. Horvath's new job as Google's Senior Privacy Counsel was announced in August of 2007.

EFF asked the DOJ for information about communications between Horvath and Google with a Freedom of Information Act (FOIA) request as Horvath prepared to leave the agency, but the DOJ has not responded to the request more than six months after it was submitted.

"Google has an unprecedented ability to collect and retain very personal information about millions of Americans, and the DOJ and other law enforcement agencies have developed a huge appetite for that information," said EFF Senior Counsel David Sobel. "We want to know what discussions DOJ's top privacy lawyer had with Google before leaving her government position to join the company."

EFF's suit demands records of all correspondence, email, or other communications between Horvath and Google, and asks the court to order the DOJ to immediately process the documents for release.

This FOIA lawsuit is part of EFF's FLAG Project, which uses FOIA requests and litigation to expose the government's expanding use of technologies to invade privacy. Previous EFF FOIA requests have uncovered misuse of National Security Letters (NSLs) by the FBI, as well as improper FBI access to email from an entire computer network.

For the full complaint against the DOJ:
http://www.eff.org/files/filenode/doj_google/foia_complaint_filed.pdf

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

Contact:

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

Related Issues:
February 21, 2008

Mitchell Baker and the Mozilla Foundation, Michael Geist, and Mark Klein to be Honored at San Diego Award Ceremony

San Diego - The Electronic Frontier Foundation (EFF) is pleased to announce the winners of its 2008 Pioneer Awards: the Mozilla Foundation and its Chairman Mitchell Baker, University of Ottawa Professor Michael Geist, and AT&T whistleblower Mark Klein.

The award ceremony will be held at 7pm, March 4th at the San Diego Marriott Hotel and Marina in conjunction with the O'Reilly Emerging Technology Conference (ETech). Michael Robertson -- founder and CEO of MP3.com, Linspire, MP3Tunes and Gizmo5 -- will give the awards' keynote address: "What to Expect When You're Expecting...To Be Sued."

Mitchell Baker is the Chairman of the Mozilla Foundation, which is dedicated to promoting openness, innovation, and opportunity on the Internet through its sponsorship of the open-source Mozilla project. The Mozilla Foundation provides grants, legal services, and other support for development projects involving the Firefox browser, the Thunderbird email application, and other Mozilla software. Baker was previously the attorney at Netscape responsible for all legal issues related to product development and intellectual property protection. During that time she wrote the Netscape and Mozilla Public Licenses.

Dr. Michael Geist is a law professor at the University of Ottawa. Last year, he led the public protest to proposed Canadian copyright law changes that would have devastated consumers' technology rights. The groundswell of opposition caused the government to rethink and ultimately cancel introducing the legislation. Geist serves on the Privacy Commissioner of Canada's Expert Advisory Board and on the Canadian Digital Information Strategy's Review Panel. Geist is also an internationally syndicated columnist on technology law and writes a popular blog on the Internet and intellectual property issues.

Mark Klein is a retired AT&T telecommunications technician who blew the whistle on the government's warrantless surveillance program. When news reports of the illegal spying surfaced in December of 2005, Klein realized that he had been witness to -- and participated in setting up -- massive surveillance technology that violated the rights of millions of Americans. In early 2006, Klein brought EFF authenticated documents showing how AT&T diverted customers' communications to a room controlled by the National Security Agency. EFF now represents AT&T customers in a class-action lawsuit over the illegal spying.

"The Pioneer Award winners this year show us how one person can truly make a difference in our digital world," said EFF Executive Director Shari Steele. "It's hard work to protect freedom, and we are so grateful for the invaluable contributions of Mitchell, Michael, and Mark."

Since 1991, the EFF Pioneer Awards have recognized individuals and organizations that have made significant and influential contributions to the development of computer-mediated communications and to the empowerment of individuals in using computers and the Internet. Past winners include World Wide Web inventor Tim Berners-Lee, Linux creator Linus Torvalds, and security researcher Bruce Schneier, among many others.

The winners of the 17th annual Pioneer Awards were nominated by the public and then chosen by a panel of judges. This year's panel includes Kim Alexander (President and founder, California Voter Foundation), Esther Dyson (Internet court jester and blogger, Release 0.9; founding chairman of ICANN; former chairman of EFF), Mitch Kapor (President, Kapor Enterprises; co-founder and former chairman EFF), Drazen Pantic (Co-director, Location One), Barbara Simons (IBM Research [Retired] and former president ACM), James Tyre, (Co-founder, The Censorware Project; EFF policy fellow) and Jimmy Wales, (Founder, Wikipedia; co-founder, Wikia; chair emeritus of the Wikimedia Foundation).

TCHO is the Platinum Sponsor for the 2008 Pioneer Awards ceremony. TCHO is a new chocolate company for a new generation of chocolate enthusiasts. Founded by Wired co-founder Louis Rossetto and legendary chocolatier and former technologist Timothy Childs, TCHO will sample a "beta release" of their dark chocolate during the awards ceremony. Attendees are invited to taste two different formulas and vote for their favorite. Feedback directly influences the national release bar. Learn more about TCHO at: http://www.tcho.com

Bronze sponsors of the event include Atomic PR, Barracuda, JibJab, MOG, and Three Rings.

Tickets to the Pioneer Awards ceremony are $35. If you plan to attend, RSVP to events@eff.org. You can also pay for your tickets in advance at http://secure.eff.org/pioneerfundraiser. Members of the media interested in attending the event should email press@eff.org.

For more on attending the Pioneer Awards:
http://www.eff.org/awards/pioneer

Contacts:

Katina Bishop
Associate Director of Development
Electronic Frontier Foundation
katina@eff.org

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

February 21, 2008

Laptops in "Sleep" or "Hibernation" Mode Most Vulnerable to Attack

San Francisco - A team including the Electronic Frontier Foundation (EFF), Princeton University, and other researchers have found a major security flaw in several popular disk encryption technologies that leaves encrypted data vulnerable to attack and exposure.

"People trust encryption to protect sensitive data when their computer is out of their immediate control," said EFF Staff Technologist Seth Schoen, a member of the research team. "But this new class of vulnerabilities shows it is not a sure thing. Whether your laptop is stolen, or you simply lose track of it for a few minutes at airport security, the information inside can still be read by a clever attacker."

The researchers cracked several widely used disk encryption technologies, including Microsoft's BitLocker, Apple's FileVault, TrueCrypt, and dm-crypt. These "secure" disk encryption systems are supposed to protect sensitive information if a computer is stolen or otherwise accessed. However, in a paper and video published on the Internet today, the researchers show that data is vulnerable because encryption keys and passwords stored in a computer's temporary memory -- or RAM -- do not disappear immediately after losing power.

"These types of attacks were often thought to be in the realm of the NSA," said Jacob Appelbaum, an independent computer security researcher and member of the research team. "But we discovered that on most computers, even without power applied for several seconds, data stored in RAM seemed to remain when power was reapplied, We then wrote programs to collect the contents of memory after the computers were rebooted."

Laptops are particularly vulnerable to this attack, especially when they are turned on but locked, or in a "sleep" or "hibernation" mode entered when the laptop's cover is shut. Even though the machines require a password to unlock the screen, the encryption keys are already located in the RAM, which provides an opportunity for attackers with malicious intent.

The research released today shows that these attacks are likely to be effective against many other disk encryption systems because these technologies have many architectural features in common. Servers with encrypted hard drives are also vulnerable.

"We've broken disk encryption products in exactly the case when they seem to be most important these days: laptops that contain sensitive corporate data or personal information about business customers," said J. Alex Halderman, a Ph.D. candidate in Princeton's computer science department. "Unlike many security problems, this isn't a minor flaw; it is a fundamental limitation in the way these systems were designed."

In addition to Schoen, Appelbaum, and Halderman, the research team included William Paul of Wind River Systems, and Princeton graduate students Nadia Heninger, William Clarkson, Joseph Calandrino, Ariel Feldman as well as Princeton Professor Edward Felten, the director of the Center for Information Technology Policy and a member of EFF's Board of Directors.

The researchers have submitted the paper for publication and it is currently undergoing review. In the meantime, the researchers have contacted the developers of BitLocker, which is included in some versions of Windows Vista, Apple's FileVault, and the open source TrueCrypt and dm-crypt products, to make them aware of the vulnerability. One effective countermeasure is to turn a computer off entirely, though in some cases even this does not provide protection.

For the full paper "Lest We Remember: Cold Boot Attacks on Encryption Keys," a demonstration video, and other background information:
http://citp.princeton.edu/memory/

Contacts:

Seth Schoen
Staff Technologist
Electronic Frontier Foundation
seth@eff.org

Jacob Appelbaum
Computer Security Researcher
jacob@appelbaum.net

J. Alex Halderman
Princeton University
jhalderm@cs.princeton.edu

Related Issues:
February 12, 2008

EFF Condemns Senate Vote, Looks to House for Leadership

Washington, D.C. - Despite the strong leadership of senators like Chris Dodd and Russ Feingold, the Senate failed today to block provisions of a pending surveillance bill that would grant immunity to phone companies that assisted the government in illegal electronic surveillance.

The Dodd-Feingold amendment to remove immunity from the FISA Amendments Act (FAA) failed in a 31 to 67 vote, and final Senate passage of the FAA is expected later today.

"Immunity for telecom giants that secretly assisted in the NSA's warrantless surveillance undermines the rule of law and the privacy of every American," said EFF Senior Staff Attorney Kevin Bankston. "Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying."

After the Senate passes the FAA, it will need to negotiate with the House over differences between the FAA and the RESTORE Act, the House's own surveillance bill passed in November. The RESTORE Act, although far from perfect, provides for more congressional and judicial oversight of the Executive Branch's domestic spying than the FAA, and does not include immunity for the telephone companies. President Bush has threatened to veto any surveillance legislation that does not contain immunity, even as the Protect America Act's changes to surveillance law -- which the president has argued are critical to saving American lives -- are set to expire on February 15th.

"It's time for Speaker Pelosi to draw a line the sand, and make clear to the president that this House of Representatives is never going to pass any bill that includes immunity for lawbreaking telecoms," said Bankston. "It's time for the president to show that he cares more about American lives than about the phone companies' bottom lines by actually working toward a bipartisan agreement on how to update surveillance law for the 21st century."

Senator Feinstein also offered an amendment to the Senate bill that would have provided immunity to phone companies if the Foreign Intelligence Surveillance Court determined that they had a good faith, reasonable belief that the NSA program was legal. That amendment did not pass, but received enough votes that it might be considered by the House as a potential compromise on the immunity issue.

"Attempts by senators like Ms. Feinstein to find a reasonable compromise on the immunity question are much appreciated, but transferring all of the litigation to the secretive and conservative FISA court is unnecessary, inefficient and unwise," said Bankston. "The regular federal courts are fully capable of handling these cases fairly and securely."

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

Contacts:

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

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

Related Issues:
February 8, 2008

Announcement Sets Stage for Congressional Showdown

Washington, D.C. - Today, a formidable trio of House Committee Chairmen sent a stern letter to their colleagues urging them to oppose immunity for phone companies that assisted in the NSA's warrantless wiretapping program.

The White House is demanding that immunity for the telecoms be included in Foreign Intelligence Surveillance Act (FISA) legislation pending in Congress. But in today's letter -- written by John Dingell, Chairman of the House Committee on Energy and Commerce; Ed Markey, Chairman of the House Subcommittee on Telecommunications and the Internet; and Bart Stupak, Chairman of the Subcommittee on Oversight and Investigations -- the congressmen argue that the president is creating a "false choice" for lawmakers.

"By tying the question of lawsuit immunity to questions of national security and Foreign Intelligence Surveillance Act (FISA) reform legislation, the President has created a false choice for Congress," the letter states. "The issue of immunity for phone companies that chose to cooperate with the President's warrantless wiretapping program deserves a separate and more deliberate examination by Congress. No special urgency attaches to the question of immunity other than the present Administration's general eagerness to limit tort liability and its desire to avoid scrutiny of its own actions, by either the courts or the Congress."

Earlier this week, more than two dozen House members sent a letter to the White House announcing their opposition to telecom immunity. Along with the Chairmen's letter, this may represent a significant shift in the political debate over telecom immunity. The Senate could complete work on the FISA Amendments Act, which includes immunity, as early as next week. In November, the House passed its own surveillance bill, the RESTORE Act, which does not grant immunity. The House will soon be negotiating with the Senate over how to reconcile those bills.

"Senators about to vote on immunity should heed the Chairmen's warning: tying the question of telecom immunity to that of FISA reform is unnecessary and dangerous," said Electronic Frontier Foundation (EFF) Senior Staff Attorney Kevin Bankston. "But if the Senate complies with the Administration's pleas to cover up its illegal spying and bail out the phone companies, then it's time for the House to step up and block immunity for lawbreaking telecom giants."

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

For the full letter from Congressmen Dingell, Markey, and Stupak: http://www.eff.org/files/nsa/dingell.pdf

For the letter from the House members to the White House: http://lee.house.gov/index.cfm?ContentID=1206&ParentID=0&SectionID=4&SectionTree=4&lnk=b&ItemID=1201

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

Contacts:

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

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

Related Issues:
February 7, 2008

Information Sought in Response to Growing Complaints of Harassment at U.S. Borders

San Francisco - The Asian Law Caucus (ALC) and Electronic Frontier Foundation (EFF) filed suit today against the U.S. Department of Homeland Security (DHS) for denying access to public records on the questioning and searches of travelers at U.S. borders. Filed under the Freedom of Information Act, the suit responds to growing complaints by U.S. citizens and immigrants of excessive or repeated screenings by U.S. Customs and Border Protection agents.

ALC, a San Francisco-based civil rights organization, received more than 20 complaints from Northern California residents last year 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, customs agents examined travelers' books, business cards collected from friends and colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. When individuals complained, they were told, "This is the border, and you have no rights."

"When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation's doorstep," said Shirin Sinnar, staff attorney at ALC. "The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process."

ALC and EFF asked DHS to disclose its policies on questioning travelers on First Amendment-protected activities, photocopying individuals' personal papers, and searching laptop computers and other electronic devices. The agency failed to meet the 20-day time limit that Congress has set for responding to public information requests, prompting the lawsuit.

"The public has the right to know what the government's standards are for border searches," said EFF Staff Attorney Marcia Hofmann. "Laptops, phones, and other gadgets include vast amounts of personal information. When will agents read your email? When do they copy data, where is it stored, and for how long? How will this information follow you throughout your life? The secrecy surrounding border search policies means that DHS has no accountability to America's travelers."

When Nabila Mango, an American citizen and San Francisco therapist, returned from a trip to the Middle East in December, customs agents at San Francisco International Airport asked her to name every person she had met and every place she had slept during her travels. They also searched her Arabic music books, business cards, and cell phone, and may have photocopied some of her papers.

"In my 40 years in this country, I have never felt as vulnerable as I did during that interrogation," Mango said. "I want to find out whether my government is keeping files on me and other Americans based on our associations and ideas."

Amir Khan, an IT consultant from Fremont, California and a U.S. citizen, is stopped each time he returns to the country. Customs officials have questioned him for a total of more than 20 hours and have searched his laptop computer, books, personal notebooks, and cell phone. Despite filing several complaints, Khan has yet to receive an explanation of why he is repeatedly singled out.

"One customs officer even told me that no matter what I do, nothing would improve," said Khan. "Why do I have to part with my civil liberties each time I return home?"

For a copy of the complaint:
http://www.eff.org/files/filenode/alc/alc-complaint.pdf

Contacts:

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

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

Related Issues:
January 31, 2008

Illegitimate Patent Chills Innovation in Multi-Player Internet Games

San Francisco - The Electronic Frontier Foundation (EFF) is challenging a bogus online gaming patent threatening small businesses and innovators of multi-player Internet games.

Sheldon F. Goldberg was awarded the illegitimate patent for the "method and system of playing games on a network," and claims to own rights in all online gaming systems that use tournament-style play, advertising, and have real-time updates of ladder-rankings in multi-player games. Goldberg has used this bogus patent to coerce licensing fees from numerous small businesses, demanding payments that are excessive yet less than potential litigation.

In a reexamination request filed with the United States Patent and Trademark Office (USPTO) today, EFF and Paul Grewal and Brad Waugh of Day Casebeer Madrid & Batchelder show that the technology covered by the bogus patent was used extensively by other online gaming companies before Goldberg made his claim.

"The Internet has allowed small businesses and individuals seeking to develop new technologies to operate on a level playing field with larger corporations," said EFF Intellectual Property Fellow Emily Berger. "This equality is threatened by those who seek to procure patents from our government that they were never entitled to hold in the first place."

One of the key sources of information in EFF's reexamination request came from Netrek, one of the first online multi-player games. Netrek primarily consists of open-source software, and its code development has been archived online.

"Real innovation by others suffers in light of meritless claims like those in Mr. Goldberg's patent," said Paul Grewal. "We are confident that the Patent Office will carefully review the arguments we have presented in our petition."

Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School also carried out extensive research for the reexamination request, helping locate much of the critical evidence of prior use of technologies covered by Goldberg's patent.

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. Three more reexaminations are underway by the USPTO due to the Patent Busting Project's efforts.

For the full reexamination request: http://w2.eff.org/patent/wanted/sheldon/reexam/goldberg_reexam_request.pdf

For more on the Goldberg Patent:
http://w2.eff.org/patent/wanted/patent.php?p=sheldon

For more on the Patent Busting Project:
http://w2.eff.org/patent/

Contacts:

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

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

Related Issues:
January 30, 2008

Muslim Group Files Motion, Answer to Michael Savage in Federal District Court

***This press release is from the Council on American Islamic Relations (CAIR) and EFF is distributing it on its behalf***

Washington, D.C. - Washington, D.C. - The Council on American-Islamic Relations (CAIR) today asked a federal judge in California to throw out what it termed a "baseless" lawsuit by syndicated radio talk show host Michael Savage.

Late last year, Savage sued CAIR for copyright infringement after the Washington-based civil rights and advocacy organization posted brief audio clips from his October 29, 2007, program on its website.

In those clips, Savage, whose "The Savage Nation" program airs on more than 300 radio stations nationwide, screamed attacks on Muslims, Islam and the Quran. CAIR called on radio listeners of all faiths to contact companies that advertise on Savage's program to express their concerns about the host's anti-Muslim bigotry.

A community and interfaith coalition, called Hate Hurts America, was also formed in response to Savage's rhetorical attacks on Muslims and Islam.

CAIR filed an answer to Savage's suit as well as a motion for judgment on the pleadings in the U.S. District Court for the Northern District of California. A hearing is set for March 7, 2008 in that court.

In its motion, CAIR stated, in part:

"Viewed in its entirety, Savage's Complaint is simply a camouflaged defamation or disparagement claim dressed as bogus copyright and RICO claims...Savage's legal broadside specifically targets CAIR as a civil rights organization and its core political speech responding to and criticizing Savage's inflammatory political rhetoric. As the nation's largest civil rights organization for Muslims, CAIR appropriately characterized Savage's own words as an 'Anti-Muslim Tirade' and publicly communicated a detailed response as part of its advocacy work."

"Michael Savage's frivolous and baseless lawsuit is a direct attack on First Amendment freedoms and on any citizen's right to comment on public issues," said CAIR Legal Counsel Nadhira Al-Khalili. "His suit is an abuse of the judicial system and a transparent attempt to punish those who challenge his hate-filled rhetoric."

She added that CAIR's public criticism of Savage's remarks is clearly protected by both the First Amendment and copyright law.

CAIR is represented in this case by the law firms Davis Wright Tremaine LLP, and the Electronic Frontier Foundation (EFF).

For CAIR's Motion for Judgment on the Pleadings:
http://www.cair.com/Portals/0/pdf/CAIR_Savage_motion.pdf

For Hate Hurts America:
http://www.hatehurtsamerica.com/news.php

Contacts:

Ahmed Rehab
Media Relations Director
CAIR
arehab@cair.com

Amina Rubin
Communications Coordinator
CAIR
arubin@cair.com

About CAIR:

CAIR, America's largest Islamic civil liberties group, has 35 offices and chapters nationwide and in Canada. Its mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding.

Related Issues:
January 25, 2008

New Legislation Could Clear Path for Telecom Spying Lawsuits to Proceed in Court

Washington, D.C. - On Tuesday, January 29, at 9:30 a.m, members of the U.S. House of Representatives Judiciary Committee will hold a public hearing on reform of the state secrets privilege, which the Executive Branch has often used in recent years to hinder judicial inquiry into controversial anti-terrorism policies such as the CIA's rendition program and the NSA's warrantless wiretapping program.

Senior Staff Attorney Kevin Bankston of the Electronic Frontier Foundation (EFF) will appear at Tuesday's hearing to explain how the Administration has abused the privilege by seeking dismissal of all lawsuits concerning the NSA program -- including EFF's lawsuit against AT&T for assisting with the NSA -- based on blanket assertions of secrecy. Bankston will urge the committee to pass legislation to reform the privilege and clear the way for such lawsuits to proceed in court fairly and securely. Such reform is the most appropriate response to phone companies like AT&T that are lobbying Congress for retroactive amnesty, based on the claim that the government's assertion of the state secrets privilege prevents them from defending themselves.

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government. A recent poll found that 57 percent of likely voters opposed letting the telecoms off the hook for these suits.

WHO:
Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation

WHAT:
Oversight Hearing on Reform of the State Secrets Privilege
U.S. House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties

WHERE:
2141 Rayburn House Office Building
Washington, D.C.

WHEN:
9:30 a.m.
Tuesday, January 29

For more on the hearing:
http://judiciary.house.gov/oversight.aspx?ID=404

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

Contact:

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

Related Issues:
December 21, 2007

Judge Quashes Bogus Subpoena for Critic's Identity

Manalapan, NJ - A Superior Court judge in New Jersey quashed a bogus subpoena for the identity of an anonymous blogger Friday, protecting the free speech rights of a critic writing about a local government controversy.

The Electronic Frontier Foundation (EFF) represented the anonymous blogger, known as "daTruthSquad," on a site hosted by Google's Blogspot service. After the blogger strongly criticized a malpractice lawsuit filed by the township of Manalapan against its former city attorney, the township subpoenaed Google for "daTruthSquad's" identity, as well as for any emails, blog drafts, and other information Google had about the blogger. In a hearing Friday, Superior Court Judge Terence Flynn quashed the subpoena, ruling that the blogger had a First Amendment to anonymous speech.

"We're grateful that Judge Flynn upheld the First Amendment rights of our client and recognized that anonymous speakers should not be intimidated into silence through the discovery process," said EFF Staff Attorney Matt Zimmerman. "Now 'daTruthSquad' can continue to discuss township business without fear of government reprisal."

For more on this case:
http://www.eff.org/cases/manalapan-v-moskovitz

Contact:

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

Related Issues:
December 19, 2007

EFF Defends Anonymous Critic in New Jersey Lawsuit

Freehold, NJ - On Friday, December 21, at 10:30 a.m. ET, the Electronic Frontier Foundation (EFF) will urge a Superior Court judge in New Jersey to preserve the free speech rights of an anonymous blogger facing legal threats from local government officials.

The blogger, writing as "daTruthSquad" on a site hosted on Google's Blogspot service, has strongly criticized a controversial malpractice lawsuit filed by the township of Manalapan against its former city attorney. Despite having no evidence to back up its accusation that the blogger is actually the former attorney in the case, the township has subpoenaed Google for "daTruthSquad's" identity, as well as for any emails, blog drafts, and other information Google has about the blogger.

Anonymous communications have an important place in our political and social discourse, and the Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. In Friday's hearing, EFF will ask the judge to block the township's subpoena and allow "daTruthSquad" to continue to write about this or any other issue without being forced to identify him or herself.

WHAT:
Manalapan v. Moskovitz

WHEN:
10:30 a.m., Eastern Time
Friday, December 21

WHERE:
Monmouth County Courthouse
Courtroom 226-S
71 Monument Park
Freehold, NJ

Related Issues:
December 17, 2007

Senator Dodd's Efforts Result in Delay of Telecom Amnesty Push

Washington, D.C. - Senate Majority Leader Harry Reid announced today that due to the contentious nature of proposals to provide amnesty for telecoms that participated in the National Security Agency's (NSA) warrantless wiretapping program, further debate on the surveillance bill in the Senate would be delayed until January 2008. Reid's announcement followed a series of speeches by Senators who spoke in strong opposition to telecom amnesty, led by Senator Christopher Dodd of Connecticut.

Senator Dodd's efforts included numerous citations to the evidence in the Electronic Frontier Foundation's (EFF) case against AT&T from former AT&T technician and whistleblower Mark Klein, as well as to the initial decision by federal Judge Vaughn Walker that allowed the case to proceed.

In a statement delivered on the Senate floor at the end of the day, Senator Reid spoke against proposals to provide retroactive amnesty for telecoms, saying: "I believe that it is more than appropriate to ask the courts to examine the telephone companies actions and to evaluate whether or not they acted properly."

Senator Reid also warned his colleagues in the Senate about the dangerous precedent that could result should the telecoms receive amnesty from Congress: "Providing immunity without ever undertaking such an evaluation would send a dangerous signal that the requirements we enact prospectively may be ignored with impunity."

"We applaud Senator Reid for allowing the full Senate to take the time to carefully consider the dangers of granting amnesty to the phone companies who have blatantly violated their customers' privacy for over six years. Over the holiday break we hope that many Senators will listen to their constituents who want them to stand up for the Fourth Amendment," said EFF Legal Director Cindy Cohn. "But the biggest hero today is Senator Dodd, who recognized the profound Constitutional issues at stake in taking this key issue away from the courts, and refused to let it be rammed through the Senate without a fight. "

EFF represents the plaintiffs in Hepting v. AT&T, one of dozens of class-action suits accusing the telecoms of violating customers' rights by illegally assisting the National Security Agency with this dragnet domestic surveillance of ordinary Americans.

For more on Hepting v. AT&T and telecom immunity:
http://www.eff.org/nsa

Contacts:

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

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

Related Issues:
December 11, 2007

Records Released As Lawmakers Debate Changes to Surveillance Law

San Francisco - The Electronic Frontier Foundation (EFF) has received a second set of records from the Office of the Director of National Intelligence (ODNI) detailing behind-the-scenes briefings for lawmakers working to make substantial changes to the Foreign Intelligence Surveillance Act (FISA).

EFF requested release of the records under the Freedom of Information Act (FOIA) earlier this year, but ODNI dragged its feet in response. Last month, a federal judge ordered ODNI to release all documents by December 10. The first batch of records, made public on November 30, detailed contentious negotiations between Director of National Intelligence Mike McConnell and members of Congress that resulted in the passage of the Protect America Act -- an expansion of spying powers that undermined the Constitution and the privacy of Americans.

The second set of records contains more correspondence between McConnell and members of Congress, as well as heavily redacted versions of classified testimony delivered to the Senate Select Committee on Intelligence, and an FAQ detailing how the National Security Agency performs electronic surveillance. Withheld records include ODNI presentation slides used to brief Congress on foreign intelligence issues, and other classified documents.

"Our democratic system works best when citizens are fully informed about the issues being debated in Congress," said EFF Staff Attorney Marcia Hofmann. "Unfortunately, the Bush Administration is continuing to withhold information that is central to the pending debate on proposed changes to surveillance law."

The Protect America Act expires in February, and lawmakers are working on an extension of the bill -- potentially including more power for the government to spy on Americans as well as possibly granting amnesty for telecommunications companies that participated in the warrantless surveillance. EFF's Freedom of Information Act request also asked for any documentation of lobbying activity from telecoms that are facing lawsuits because of their role in the illegal spying. However, according to ODNI, the agency located a single document on this subject -- classified handwritten notes made by an ODNI employee on a telephone message slip.

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws.

Part one of the ODNI documents:
http://www.eff.org/files/filenode/foia_C0705278/121007_odni01.pdf

Part two of the ODNI documents:
http://www.eff.org/files/filenode//121007_odni02.pdf

ODNI declaration explaining withholdings:
http://www.eff.org/files/filenode/foia_C0705278/121007_hackett_decl.pdf

For more on EFF v. ODNI:
http://www.eff.org/issues/foia/cases/C-07-05278

Contacts:

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

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

Related Issues:
December 5, 2007

Latest Proposal Undermines Goal of Letting the Courts Rule on 5+ Years of Companies' Illegal Wiretapping Violations

Washington, D.C. - Tomorrow the Senate Judiciary Committee is scheduled to take up a bill introduced by Senator Arlen Specter (R-PA) that would substitute the government for the phone companies in all current litigation. The Electronic Frontier Foundation (EFF), co-lead counsel in the nearly 40 pending lawsuits against the major telephone carriers, strongly believes that Congress need not and should not grant amnesty for providing the National Security Agency (NSA) with the full content of billions of their customers' emails, text messages and Internet-carried phone calls.

"While EFF appreciates the attempt by Senator Specter to craft a compromise to save the litigation, the bill contains serious flaws that undermine the goal of allowing the courts to decide whether the carriers and the president broke the law when they engaged in over five years of warrantless surveillance of millions of ordinary Americans," said EFF Legal Director Cindy Cohn. "Given the gravity and unprecedented complexities of the issues raised by the carriers' demand for amnesty, Congress should not be rushed into action by an arbitrary deadline and should instead take the time to carefully consider Senator Specter's proposal as well as others."

Prior to the Thanksgiving break, Senator Specter had the right idea when he said: "I don't think Congress can stand by, and in the face of what has happened, give carte blanche, a free ticket, grant retroactive immunity to suggest to future administrations that they can ignore separation of powers and they can ignore Congressional oversight and just run roughshod over the entire process without being held accountable. The better practice is to allow judicial proceedings to take their course and let the courts make their own determinations."

"The Judiciary Committee's instincts before Thanksgiving to separate out the substantive changes to FISA -- which are tied to the sunset of the Protect America Act in February, 2008 -- from the question of amnesty were correct," said Cohn. "Before tens of millions of Americans and their legitimate claims are kicked out of court, Congress owes the American people a transparent process -- not a few weeks of pressured consideration and a single public hearing by the Committee charged with protecting the Bill of Rights."

The "Foreign Intelligence Surveillance Substitution Act of 2007," introduced on December 3 by Sen. Specter, addresses one important problem regarding damages if the plaintiffs' case is proven. Regrettably, however, it falls short. Specifically, the new Specter substitution bill:

* Would require the plaintiffs to change their legal claims from those against telecoms to claims that can only be made against the government, paradoxically making the lawsuits more likely to trigger national security concerns even as they slant the playing field sharply in favor of the government

* Could empower the government to kill the litigation by asserting legal privileges that the government alone possesses

* Would dramatically and prejudicially limit the plaintiffs' current rights to discovery and other key procedural rights critical to getting at the facts about the telecoms' ongoing violations of multiple Congressional privacy statutes, including the Foreign Intelligence Surveillance Act (FISA). These statutes specifically require telecoms to say "No" to an overreaching Executive Branch when it demands warrantless and illegal access to customers' private calls and call records.

"Although regrettably we cannot support Sen. Specter's new bill, we applaud his serious efforts and his fundamental approach to this issue," said Cohn. "We couldn't agree more with his bottom line on telecom amnesty and hope that every senator will take this to heart as FISA reform makes its way to the Senate floor this year or next."

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

Contacts:

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

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

Related Issues:
November 30, 2007

Records Posted on EFF's Website

San Francisco - Today the Electronic Frontier Foundation (EFF) received the first of two batches of records from the Office of the Director of National Intelligence (ODNI) concerning the Administration's attempts this past summer to enact the Protect America Act and eviscerate the Foreign Intelligence Surveillance Act (FISA).

The records reveal new details about the contentious negotiations between Director of National Intelligence Mike McConnell and members of Congress that resulted in the passage of the Protect America Act -- an expansion of spying powers that undermined the Constitution and the privacy of Americans. In one letter, Senate Select Committee on Intelligence Chairman John D. Rockefeller IV claims that McConnell made "assurances" and "agreements" that were not carried out, and says, "I and others involved in these important and intense FISA negotiations are left to question whether the negotiations were carried out in good faith or whether your commitments were overruled by others at the White House or within the Administration." Senator Sheldon Whitehouse also expressed "deeply felt displeasure with the administration's legislative strategy on the recent 'FISA Fix'" and says that the Protect America Act was passed "at a substantial price, one that will be paid in rancor, suspicion and distrust."

"These documents give Americans a unique inside look at high-level discussions about how a controversial -- and critically important -- change to the law occurred," said EFF Staff Attorney Marcia Hofmann. "A Senate vote on more changes to FISA is just weeks away, and these records could not be more relevant to the ongoing debate on these issues."

EFF sued for the release of the records under the Freedom of Information Act (FOIA) earlier this year, demanding documents concerning briefings, discussions, or other contacts ODNI officials have had with representatives of telecommunications companies or members of Congress about amending FISA. Today's 250-page disclosure focuses on communications between ODNI and members of Congress but includes no information about the telecom industry's lobbying efforts. A federal judge ordered ODNI to release the rest of the relevant documents by December 10.

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws.

Part one of the ODNI documents:
http://www.eff.org/files/filenode/foia_C0705278/113007_odni01.pdf

Part two of the ODNI documents:
http://www.eff.org/files/filenode/foia_C0705278/113007_odni02.pdf

For more on EFF v. ODNI:
http://www.eff.org/issues/foia/cases/C-07-05278

Contacts:

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

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

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

Related Issues:
November 28, 2007

Technology Rights Group Addresses the Comcast Controversy

San Francisco - In the wake of the detection and reporting of Comcast Corporation's controversial interference with Internet traffic, the Electronic Frontier Foundation (EFF) has published a comprehensive account of Comcast's packet-forging activities and has released software and documentation instructing Internet users on how to test for packet forgery or other forms of interference by their own ISPs.

Separate tests in October from EFF, the Associated Press, and others showed that Comcast was forging small parcels of digital data, known as packets, in order to interfere with its subscribers' and other Internet users' ability to use file-sharing applications, like BitTorrent and Gnutella. Despite having been confronted by this evidence, Comcast continues to issue incomplete and misleading statements about their practices and their impact on its customers.

"Comcast is discriminating among different kinds of Internet traffic based on the protocols being used by its customers," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "When confronted, Comcast has been evasive and misleading in its responses, so we decided to start gathering the facts ourselves."

Protocol-specific discrimination gives ISPs a tremendous amount of power over the kinds of new applications and services that can be deployed by innovators and competitors. To the extent that practices like those employed by Comcast change the "end-to-end" architecture of the Internet, those practices jeopardize the Internet's vibrant innovation economy.

"This recent interference by Comcast in their subscribers' Internet communications is a cause for grave concern," said EFF Staff Technologist Peter Eckersley. "It threatens the open Internet standards and architecture that have made the network such an engine of technical and economic innovation."

In addition to an account of the results of EFF's independent testing of Comcast's packet forging activities, EFF has also issued a detailed document and software to assist other networking experts in conducting their own testing.

"If ISPs won't give their customers accurate information about their Internet traffic controls, we have to detect and document them for ourselves," said EFF Staff Technologist Seth Schoen.

For "Packet Forgery by ISPs: A Report on the Comcast Affair":
http://www.eff.org/wp/packet-forgery-isps-report-comcast-affair

For "Detecting Packet Injection: A Guide to Packet Spoofing by ISPs":
http://www.eff.org/wp/detecting-packet-injection

For more on EFF's research into Comcast's packet monitoring:
http://www.eff.org/testyourisp

Contacts:

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

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

Seth Schoen
Staff Technologist
Electronic Frontier Foundation
seth@eff.org

Related Issues:
November 28, 2007

Judge Cancels Friday Hearing, Orders Government to Comply by December 10

San Francisco - Late Tuesday, the Electronic Frontier Foundation (EFF) won the speedy release of telecom lobbying records from the Office of the Director of National Intelligence (ODNI).

The agency was ordered to comply with a new December 10 deadline -- in time for the documents to play a role in the congressional debate over granting amnesty for telecommunications companies taking part in illegal electronic surveillance. The ruling by U.S. District Judge Susan Illston vacates a hearing on the matter previously scheduled for Friday.

"We are pleased Judge Illston recognized that time was running out for these documents to make a difference in the legislative debate. She agreed that the Administration is dragging its feet in making relevant information available and stressed that the public has a right to full disclosure before Congress acts on the pending telecom amnesty proposals," said EFF Senior Counsel David Sobel. "The court's order confirms our belief that aggressive use of the Freedom of Information Act is needed to challenge government secrecy."

EFF sued for release of the documents after ODNI's slow response to EFF's Freedom of Information Act (FOIA) request to disclose information about any telecom lobbying activity. In the meantime, debate in Congress heated up over proposed changes to the Foreign Intelligence Surveillance Act (FISA), including proposals aimed at letting telecoms off the hook for their role in warrantless spying on millions of ordinary Americans.

"The full Senate could start debate on amnesty for telecoms as soon as the first week in December," said EFF Staff Attorney Marcia Hofmann. "We look forward to making the records public and discovering what light they can shed on this very important issue."

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

For the full order from Judge Illston:
http://www.eff.org/files/filenode/foia_C0705278/eff_v_odni_order.pdf

Contacts:

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

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

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

Related Issues:
November 28, 2007

EFF Defends Critic from Local Government's Heavy-Handed Tactics

Manalapan, NJ - The Electronic Frontier Foundation (EFF) asked a Superior Court judge in New Jersey today to preserve the free speech rights of an anonymous blogger facing legal threats from local government officials.

The blogger, writing as "daTruthSquad" on a site hosted on Google's Blogspot service, has criticized a controversial lawsuit filed by the township of Manalapan, as well as the officials who decided to pursue the case. The township subpoenaed Google for "daTruthSquad's" identity -- as well as for any emails, blog drafts, and other information Google has about the blogger -- claiming that the defendant in the case is actually writing the posts. The defendant, however, has already sworn under penalty of perjury that he is not "daTruthSquad."

"Bloggers, as well as everyone else, have a First Amendment right to speak anonymously," said EFF Staff Attorney Matt Zimmerman. "Litigants don't get a blank check to pry into the private lives of critics when they say things the litigants don't like. The fact that it is the government trying to abuse the discovery process makes this attempted invasion of privacy all the more repugnant."

In a motion to quash the subpoena filed today, EFF asked the court to block the township's attempt to uncover the identity of "daTruthSquad" and allow the blogger to continue to write about this or any other issue without being forced to identity him or herself.

"Attempts to intimidate critics into silence need to be confronted whenever and wherever they occur," said Zimmerman. "Governmental entities simply cannot be permitted to investigate critics because they dare to voice disapproval of public officials. It remains our sincere hope that the Township will abandon this intolerable legal strategy."

For the full motion to quash:
http://www.eff.org/files/filenode/manalapan/motiontoquashmpa-signed.pdf

For more on this case:
http://www.eff.org/cases/manalapan-v-moskovitz

Contacts:

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

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

Related Issues:
November 27, 2007

EFF Demands Information on Industry Campaign to Block Surveillance Suits

*UPDATE* EFF Wins Fast-Track Release of Telecom Lobbying Records: Judge Cancels Friday Hearing, Orders Government to Comply by December 10

San Francisco - On Friday, November 30, at 9am, the Electronic Frontier Foundation (EFF) will urge a federal judge to speed the release of lobbying records that could shed light on the congressional debate over granting amnesty for telecommunications companies taking part in illegal electronic surveillance.

In just a few days, the U.S. Senate will consider changes to the Foreign Intelligence Surveillance Act (FISA), including proposals aimed at letting telecoms off the hook for their role in warrantless spying on millions of ordinary Americans. But the Office of the Director of National Intelligence (ODNI) is dragging its feet on EFF's Freedom of Information Act (FOIA) request to disclose information about telecom lobbying activity. In Friday's hearing, EFF will ask U.S. District Court Judge Susan Illston to order ODNI to release this information while it could still impact the Senate vote.

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

WHAT:
EFF v. ODNI

WHEN:
9 a.m.
Friday, November 30

WHERE:
U.S. District Court, Northern District of California
Courtroom 10, 19th Floor
450 Golden Gate Ave.
San Francisco, CA 94102

For more on this FOIA lawsuit:
http://www.eff.org/issues/foia/cases/C-07-05278

For more on Hepting v. AT&T:
http://www.eff.org/nsa

Contact:

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

Related Issues:
November 15, 2007

Fourth Successful Challenge from EFF's Patent-Busting Project

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

The patent, now held by Hoshiko, LLC, claims 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 illegitimate patent to demand payment from website hosting companies that offer such personalized domains, including Freehomepage.com, T35 Hosting, and LiveJournal, a social networking site where each of its three million users have their own subdomain.

In the 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 for more than a year before Ideaflood made its patent claim. The open source developers established a public record of the technology development, providing the linchpin to EFF's patent challenge.

"The hard work of open source developers should not be taken out of the public domain and used to threaten other legitimate innovators," said EFF Senior Staff Attorney Jason Schultz, who heads EFF's Patent Busting Project. "Fortunately, the open source approach to development helped protect Apache and other web projects by creating the evidence needed to challenge this illegitimate 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. So far, the project has killed one bogus patent and won reexamination of three others.

"Based on the PTO's initial analysis in the reexamination order, it appears likely that all claims will be rejected in view of the techniques disclosed by Apache developer Ralf Engelschall and others," said Rick Mc Leod, who drafted EFF petition. "We look forward to the PTO's detailed analysis of our request."

For the full reexamination order:
http://w2.eff.org/patent/wanted/ideaflood/re-exam_order.pdf

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

Contacts:

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

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

Related Issues:
November 15, 2007

Full House and Senate Judiciary Committee Each Pass Bills with No Amnesty for Warrantless Surveillance

Washington, D.C. - Both the full House of Representatives and the Senate Judiciary Committee voted Thursday to keep telecommunications companies on the hook for their role in illegal government spying on millions of ordinary Americans -- at least for now.

The bills each make changes to the Foreign Intelligence Surveillance Act (FISA). But, despite veto threats from the White House, neither of the two bills give blanket amnesty to telecoms that took part in the massive warrantless domestic surveillance program. Both bills would allow dozens of lawsuits against the telecoms to proceed, thus allowing federal courts to rule on whether dragnet domestic surveillance documented is legal.

The Electronic Frontier Foundation (EFF) represents the plaintiffs in Hepting v. AT&T, the first class-action lawsuit accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in dragnet government spying on millions of Americans. While the Senate Judiciary Committee bill as written does not affect this and other lawsuits over the Administration's warrantless surveillance, provisions that allow the cases to proceed while also affording the companies some form of limited liability relief could well be added back into the bill when it is debated on the Senate floor. A conference committee will then meet to reconcile the House and Senate versions.

"We are pleased that the House and a majority of the Judiciary Committee's members have signaled that they want Americans to have their day in court," said EFF Staff Attorney Kevin Bankston. "The fight isn't over yet, however. We look forward to working with Senators Leahy, Specter, and Feingold and other lawmakers in both chambers of Congress to make sure that the bill eventually sent to the president allows the people's lawsuits to go forward."

For more on Hepting v. AT&T and telecom immunity:
http://www.eff.org/nsa

Contacts:

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

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

Related Issues:
November 14, 2007

Judiciary Committee to Mark Up Critical Bill Thursday

Washington, D.C. - Members of the Senate Judiciary Committee meet Thursday to discuss letting telecoms off the hook for their role in illegal spying on millions of ordinary Americans -- a blatant attempt to block lawsuits that would determine if the surveillance is legal.

The "FISA Amendments Act" includes blanket immunity for telecommunications companies who took part in a massive warrantless domestic surveillance program to wiretap Americans' communications. However, committee member Sen. Russ Feingold says he will offer an amendment that would remove this blanket immunity from the bill. The Electronic Frontier Foundation (EFF) urges lawmakers to support Sen. Feingold in holding the telecoms accountable for their involvement in the illegal spying.

"Granting immunity to the telecoms would make Congress complicit in the cover-up of illegal, wholesale warrantless spying," said EFF Legal Director Cindy Cohn. "These amnesty proposals are aimed at blocking the courthouse door to millions of folks whose rights were violated by corporations that ignored both the law and their duty to keep everyday communications private and safe. We are pleased that Senator Feingold is taking a stand, and we hope that other committee members join him."

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit that accuses the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in the dragnet government spying. EFF's case includes undisputed evidence that AT&T installed fiberoptic splitters at its facility at 611 Folsom Street in San Francisco that made copies of all emails, web browsing and other Internet traffic to and from AT&T customers on AT&T's key giant fiberoptic lines --including purely domestic communications -- and provided those copies to the NSA.

The House of Representatives may also consider an electronic surveillance bill Thursday. However, the House version of the bill does not grant immunity for telecoms, and would allow the legal cases to proceed.

For more on Hepting v. AT&T and telecom immunity:
http://www.eff.org/nsa

Contacts:

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

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

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

Related Issues:
November 13, 2007

Urges Supreme Court to Crack Down on Post-Sale Restrictions

San Francisco - The Electronic Frontier Foundation (EFF) today urged the U.S. Supreme Court to protect consumers' traditional right to use, repair, and resell the products they own, even if those products are patented. At stake is the enforceability of "single use" and "not for resale" labels on patented products.

The amicus brief -- submitted on behalf of EFF, Consumers Union, and Public Knowledge -- was filed in Quanta v. LG Electronics, currently pending before the Supreme Court. The case will test the vitality of the "patent exhaustion" doctrine, which entitles a consumer to use, repair, or resell patented products that they have purchased.

The issue is of increasing importance to consumers, who often face "single use only" and "not for resale" labels on patented products, interfering with legitimate aftermarkets for parts and service. Lexmark, for example, has used "single use only" labels to limit the market for refilled toner cartridges. Similarly, "not for resale" labels could interfere with used and refurbished product sales on eBay and Craigslist. EFF's brief urges the Supreme Court to prohibit patent owners from using patent infringement suits to enforce these kinds of post-sale use restrictions on the products they sell.

"Patent owners are trying to use 'label licenses' to deprive consumers of their right to use, repair and resell the products they own," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "It's time for the Supreme Court to step in and put a stop to it."

The case is No. 06-937. The Solicitor General, Hewlett-Packard, Dell, and Gateway all urged the Supreme Court to review the case, and oral argument is expected in early 2008.

For the full amicus brief:
https://www.eff.org/files/filenode/quanta_v_lg/quanta_amicus.pdf

Contact:

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

Related Issues:
November 6, 2007

Ruling Advances EFF's Class-action Lawsuit Against AT&T

San Francisco - A federal judge today ruled on a preservation motion filed by the Electronic Frontier Foundation (EFF), ordering that telecommunications companies must preserve any evidence of collaborating with the government in illegal spying on ordinary Americans.

In his ruling, U.S. District Court Judge Vaughn Walker ordered the telecommunications companies to halt any routine destruction of documents or to arrange for the preservation of accurate copies. On December 14, each party must provide the court with confirmation that the court's order has been carried out. The court order did not require the government or the carriers to reveal whether or not they had any relevant evidence.

The government and the carriers had opposed the preservation motion, claiming that the government's invocation of the state secrets privilege made it impossible to proceed with a preservation order. In litigation, parties are typically required to preserve all relevant evidence.

For the judge's order:
http://www.eff.org/files/filenode/att/393%20order.pdf

For more on the class-action lawsuit against AT&T:
http://www.eff.org/cases/att

Contacts:

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

Related Issues:
November 5, 2007

Press Conference on Capitol Hill on Wednesday, November 7, 10:30am

Washington, D.C. - On Wednesday, November 7, at 10:30am, telecommunications technician and AT&T whistleblower Mark Klein will speak out at a press conference on Capitol Hill, explaining why he is asking lawmakers to reject immunity for telecoms who assisted the Bush administration's spying on millions of Americans.

Klein witnessed first-hand the technology AT&T built to assist the government's domestic warrantless wiretapping program at AT&T's main switching facility in San Francisco. As part of his job at AT&T, Klein connected high-speed fiber optic cables to sophisticated equipment that intercepted communications from AT&T customers and then copied and routed every single one to a room controlled by the National Security Agency (NSA). Klein has provided evidence for the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&T for its role in the illegal spying.

"My job required me to enable the physical connections between AT&T customers' Internet communications and the NSA's illegal, wholesale copying machine for domestic emails, Internet phone conversations, web surfing and all other Internet traffic. I have first-hand knowledge of the clandestine collaboration between one giant telecommunications company, AT&T, and the National Security Agency to facilitate the most comprehensive illegal domestic spying program in history," said Klein.

Also speaking at the event Wednesday is network systems and infrastructure expert Brian Reid, who will explain how the infrastructure that Mr. Klein helped install likely fits into and facilitates the massive warrantless surveillance program.

WHO:
Mark Klein, former AT&T communications technician and domestic spying program whistleblower
Brian Reid, network systems and infrastructure expert
Cindy Cohn, Legal Director, Electronic Frontier Foundation
Kevin Bankston, Staff Attorney, Electronic Frontier Foundation

WHAT:
Press conference/Q & A to urge the Senate to reject blanket retroactive immunity for unlawfully aiding illegal domestic NSA spying.

WHERE:
Senate Banking Committee Hearing Room, Dirksen 538

WHEN:
10:30am, Wednesday, November 7th, 2007

Contacts:

Trevor FitzGibbon
Fenton Communications
trevor@fenton.com

Alex Howe
Fenton Communications
alex@fenton.com

Related Issues:
October 31, 2007

Six Concrete Guidelines Aim to Balance Free Speech Rights and Copyright

San Francisco - Online video-hosting services like YouTube have ushered in a new era of free expression online, as well as vigorous copyright enforcement efforts. Today, the Electronic Frontier Foundation (EFF) and a coalition of leading public interest groups issued a "Fair Use Principles" document that sets out six concrete guidelines designed to minimize the collateral damage that copyright enforcement efforts may inflict on video creators who are "remixing" copyrighted material into new video creations.

Fair use is the copyright doctrine that permits unauthorized uses of copyrighted material for transformative purposes. Creators naturally quote from and build upon the media that makes up their culture, yielding new works that comment on, parody, satirize, criticize, and pay tribute to the expressive works that have come before. Consequently, much of the new "remix" creativity on video hosting sites like YouTube depends on fair use.

As part of their own "UGC Principles" effort announced last week, video hosting services and major media companies emphasized the importance of accommodating fair use. The "Fair Use Principles" released today propose detailed steps that content owners and video hosting services can take to make good on that promise.

"As video hosting services begin to implement copyright filtering technology, it is time to discuss concrete strategies to protect creative videos that remix material from movies, TV and popular music," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Our aim is to speak for the interests of the millions of amateur creators who are fueling the popularity of YouTube and similar sites."

Fair uses have been mistakenly caught up in copyright enforcement dragnets in the past. For example, earlier this year blogger Michelle Malkin's video about rapper Akon was erroneously taken down from YouTube after Universal Music Group (UMG) claimed copyright infringement. In that case, two excerpts from Akon music videos were embedded in a longer commentary about the rap star. Although UMG ultimately admitted its mistake, automated content filtering raises the possibility that commentaries like this might be blocked preemptively in the future.

With cases like this one in mind, "Fair Use Principles for User-Generated Content" describes six steps that service providers and copyright owners should take to minimize damage to fair use during copyright enforcement efforts. One key principle is "three strikes before blocking" -- verifying that the video matches the video of a copyrighted work, that the audio matches the audio of the same work, and that nearly all of the clip is comprised of that single work. In addition, if a video is blocked by a content filter, the creator should be given an opportunity to dispute the filter's determination.

To accompany the "Fair Use Principles" document, EFF has also posted a gallery of videos that could be jeopardized by automated copyright filters, in hopes that video hosting services and content owners will be able to test their filters against these fair use videos.

The coalition supporting the principles includes the Center for Social Media, School of Communications, American University; Program on Information Justice and Intellectual Property, Washington College of Law, American University; Public Knowledge; Berkman Center for Internet and Society at Harvard Law School; and the American Civil Liberties Union of Northern California. In addition, the Fair Use Project at Stanford Law School's Center for Internet and Society contributed to the development of the document.

For "Fair Use Principles for User-Generated Video Content":
http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen

For the gallery of fair use videos:
http://www.eff.org/pages/UGC-test-suite

For more on fair use and free speech:
http://www.eff.org/issues/ip-and-free-speech

Contact:

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

Related Issues:
October 23, 2007

Patent Office to Take Second Look at Meritless Claims Threatening Mobile Information Access

San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination from the U.S. Patent and Trademark Office (PTO) of a bogus patent threatening mobile information access. The reexamination order is the third granted by the PTO after challenges from EFF's Patent Busting Project.

NeoMedia Technologies, Inc., claims to own rights to all systems that provide information over computer networks using database-like lookup procedures that rely on scanned inputs, such as a barcode. NeoMedia has used these claims to threaten and sue innovators in the mobile information space. But EFF's reexamination request, filed in conjunction with Paul Grewal and James Czaja of Day Casebeer Madrid & Batchelder, showed that the functionality covered by NeoMedia's bad patent was repeatedly included as part of prior patent applications from other companies.

"Overbroad and invalid patents threaten to chill important innovations, especially for startups and other nascent entrepreneurs," said EFF Senior Staff Attorney Jason Schultz. "It's important that technology in the public domain stays there."

NeoMedia has the opportunity to file comments defending the patent before the PTO makes its final determination. However, the PTO has narrowed or revoked roughly 70 percent of patents it has decided to reexamine.

"Re-examination is an essential part of the patenting process," said Paul Grewal, a partner at Day Casebeer Madrid & Batchelder. "We are pleased that the Patent Office has decided to examine NeoMedia's efforts to claim for itself what the public has long enjoyed."

The successful reexamination request for the NeoMedia patent is the latest big victory for EFF's Patent Busting Project, which combats the chilling effects bad patents have on the public interest and innovation. So far, the project has helped kill a bogus patent covering a system and method of creating digital recordings of live performances. The PTO has also granted another EFF reexamination request for an illegitimate patent for online test-taking.

For the full reexamination order:
http://w2.eff.org/patent/wanted/order_granting_reexam_neomedia.pdf

For more information about the NeoMedia patent reexamination:
http://www.eff.org/patent/wanted/patent.php?p=neomedia

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

For more on Day Casebeer Madrid & Batchelder:
http://www.daycasebeer.com

Contacts:

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

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

Related Issues:

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