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Press Room

May 26, 2006

EFF Arguments Secure Reporters' Privilege for Internet News Gatherers

San Jose - A California state appeals court ruled in favor of the Electronic Frontier Foundation's (EFF's) petition on behalf of three online journalists Friday, holding that the online journalists have the same right to protect the confidentiality of their sources as offline reporters do.

"Today's decision is a victory for the rights of journalists, whether online or offline, and for the public at large," said EFF Staff Attorney Kurt Opsahl, who argued the case before the appeals court last month. "The court has upheld the strong protections for the free flow of information to the press, and from the press to the public."

In their decision, the judges wrote: "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

The case began when Apple Computer sued several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product to online news sites PowerPage and AppleInsider. As part of its investigation, Apple subpoenaed Nfox -- PowerPage's email service provider -- for communications and unpublished materials obtained by PowerPage publisher Jason O'Grady. A trial court upheld the subpoena.

But Friday, the court said that O'Grady is protected by California's reporter's shield law, as well as the constitutional privilege against disclosure of confidential sources. The court also agreed with EFF that Apple's subpoena to email service provider Nfox was unenforceable because it violated the federal Stored Communications Act, which requires direct subpoenas of account holders.

"In addition to being a free speech victory for every citizen reporter who uses the Internet to distribute news, today's decision is a profound electronic privacy victory for everyone who uses email," said EFF Staff Attorney Kevin Bankston. "The court correctly found that under federal law, civil litigants can't subpoena your stored email from your service provider."

EFF worked with co-counsel Thomas Moore III and Richard Wiebe in this case.

For the full decision in the case:
http://www.eff.org/Censorship/Apple_v_Does/H028579.pdf

For more on Apple v. Does:
http://www.eff.org/Censorship/Apple_v_Does/

Contacts:

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

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

Related Issues:
May 25, 2006

Technician Describes Secret NSA Room at AT&T Facility

San Francisco - AT&T has set up a secret, secure room for the NSA in at least one of the company's facilities -- a room into which AT&T has been diverting its customers' emails and other Internet communications in bulk -- according to evidence in key documents partially unsealed today in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against the telecom giant.

"Now the public can see firsthand the testimony of Mark Klein, a former AT&T employee who was brave enough to step forward and provide evidence of the company's illegal collaboration with the NSA," said EFF Staff Attorney Kevin Bankston. "Today we have released some of the evidence supporting our allegation that AT&T has given the NSA direct access to its fiber-optic network, such that the NSA can read the email of anyone and everyone it chooses -- all without a warrant or any court supervision, and in clear violation of the law."

The Klein declaration and EFF's motion for a preliminary injunction against AT&T's ongoing illegal surveillance were filed under seal last month. But last week, U.S. District Judge Vaughn Walker instructed AT&T to work with EFF to narrowly redact the documents and make them available to the public.

"We strongly believe in transparency and openness in judicial proceedings and that there is no proper basis for permanently sealing any of the information supporting our preliminary injunction papers," said EFF Staff Attorney Kurt Opsahl. "In the interim, we are glad that as much as possible is released while the motions to unseal filed by media entities are pending."

EFF filed the class-action suit against AT&T in January, alleging that the telecommunications company has given the National Security Agency (NSA) secret, direct access to the phone calls and emails going over its network and has been handing over communications logs detailing the activities of millions of ordinary Americans. The next hearing in this case is set for June 23, when the judge will consider the motions to dismiss EFF's suit made by both the U.S. government and AT&T.

For the public version of Klein's declaration:
http://www.eff.org/legal/cases/att/KleinDecl-Redact.pdf

For the public version of EFF's preliminary injunction motion:
http://www.eff.org/legal/cases/att/PI-Redact.pdf

For more on EFF's lawsuit:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
May 22, 2006

Customers Will Get Compensation for Flawed Copy-Protection

New York - A U.S. District Court judge in New York gave final approval Monday to a settlement for music fans who purchased Sony BMG music CDs containing flawed copy protection programs.

"This settlement gets music fans what they thought they were buying in the first place: music that will play on all their electronic devices without installing sneaky software," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn.

The claim process actually began back in February and provides anyone who purchased Sony BMG CDs that included First4Internet XCP and SunnComm MediaMax software with the same music without digital rights management (DRM). Some people are also eligible for additional downloads or a small cash settlement. Anyone who bought one of the affected CDs should start the claims process at http://www.eff.org/sony.

"Participating in the settlement is a way to show Sony BMG -- and the entire entertainment industry -- how important this issue is to you," said Cohn. "If you take the time to claim the product you deserve, maybe other music labels will think twice before wrapping songs in DRM."

The problems with the Sony BMG CDs surfaced last year when security researchers discovered that XCP and MediaMax installed undisclosed -- and in some cases, hidden -- files on users' Windows computers, potentially exposing music fans to malicious attacks by third parties. The infected CDs also communicated back to Sony BMG about customers' computer use without proper notification.

In addition to compensating consumers, Sony BMG was forced to stop manufacturing CDs with both First4Internet XCP and SunnComm MediaMax software. The settlement also waives several restrictive end user license agreement (EULA) terms and commits Sony BMG to a detailed security review process prior to including any DRM on future CDs.

EFF and its co-counsel -- Green Welling LLP Lerach, Coughlin, Stoia, Geller, Ruchman and Robbins and the Law Offices of Lawrence E. Feldman and Associates -- along with a coalition of other plaintiffs' class action counsel, reached the settlement after negotiations with Sony BMG in December of 2005.

For more on the Sony BMG settlement:
http://www.eff.org/sony

Contacts:

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

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

May 18, 2006

EFF Wins Second Reexamination from Patent Office

San Francisco - At the request of the Electronic Frontier Foundation (EFF), the U.S. Patent and Trademark Office (PTO) will reexamine a controversial patent for online test-taking from Test.com. The reexamination order is the second granted in just two months after petitions from EFF's Patent Busting Project.

EFF filed the reexamination request because the extremely broad patent claims to cover almost all methods of online testing. Test.com has used this patent to demand payments from universities with distance education programs that give tests online. But EFF, in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, showed that Test.com was not the first to come up with this testing method -- IntraLearn Software Corporation had been marketing an online test-taking system long before Test.com filed its patent request.

"Bogus patents like these are hurting innovation and education in America," said EFF Staff Attorney Jason Schultz, who heads up the project. "This is a perfect example of how the patent system is broken and what needs to be fixed."

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

The successful reexamination request for the Test.com 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. The first reexamination request was granted in April and involves a Clear Channel patent for a system and method of creating recordings of live performances, locking musical acts into using Clear Channel technology and blocking innovations by others.

Earlier this week, the U.S. Supreme Court weighed in on the eBay patent case, signaling how important patent issues are in today's economy. In a unanimous decision, justices overturned a dangerous injunction rule that threatened free speech and consumers' rights -- following the reasoning outlined in an amicus brief from EFF. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

For the full reexamination order:
http://www.eff.org/patent/wanted/test/test_com_reexam_order.pdf

For more information about the Test.com patent reexamination:
http://www.eff.org/patent/wanted/patent.php?p=test

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

Contact:

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

Related Issues:
May 17, 2006

Evidence For Illegal Spying Case Will Remain Under Seal for Now

San Francisco - A federal judge in San Francisco ruled today that the Electronic Frontier Foundation (EFF) can use critical evidence in its class-action lawsuit against AT&T. However, U.S. District Judge Vaughn Walker said the evidence -- three documents that AT&T alleges are proprietary and contain the company's trade secrets -- will be kept under seal for now.

EFF's suit accuses AT&T of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). The evidence at issue was filed as support for EFF's motion for a preliminary injunction against AT&T, seeking to stop the company's ongoing violations of the law and the privacy of its customers.

AT&T had requested that the evidence be returned to AT&T, and not used in the case. Wednesday, Judge Walker denied that request. Although the allegedly proprietary documents will remain under seal, Judge Walker instructed AT&T to work with EFF to narrowly redact any confidential material from EFF's brief and supporting declarations so that they can be made public as soon as possible.

"We're very pleased that the court refused AT&T's unreasonable demand that this critical evidence be returned to AT&T and struck from the record. And, although the evidence itself will stay under seal, the court has asked AT&T to work with us in providing public versions of our legal papers," said EFF Staff Attorney Kevin Bankston. "Taken together with the court's refusal to close the courtroom as AT&T had requested, we think today was a real victory for the public's right to know, and for our ability to litigate this case."

The next hearing in this case -- about AT&T and the U.S. government's motions to dismiss the lawsuit -- is set for June 23.

For more on the AT&T lawsuit:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
May 16, 2006

Four Justices Question Patent Trolls and Business Methods Patents in Concurring Opinion

San Francisco - The United States Supreme Court reversed a lower court decision in the controversial eBay v. MercExchange patent case Monday, invalidating a dangerous precedent that threatened free speech and consumers' rights. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

In Monday's decision, the court unanimously held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. This follows the reasoning outlined in a friend-of-the-court brief filed by the Electronic Frontier Foundation (EFF), which urged the justices to overrule the lower court and protect the public interest in free speech, innovation, and education.

"More and more people are using the Internet to exercise free speech and other individual rights," said Staff Attorney Jason Schultz, one of the authors of the EFF brief. "The court's ruling will allow judges to protect those rights in patent cases."

The lower court's ruling stemmed in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress. Additionally, the concurrence written by Justice Anthony Kennedy and joined by Justices David Souter, John Paul Stevens, and Stephen Breyer noted that the current patent system may be suffering ill effects from business method patents and so-called "patent troll" companies.

"An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees," Justice Kennedy wrote. "In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods … the potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test."

As a result of the Supreme Court's opinion, the case will now return to the trial court to reconsider its decision on the injunction.

For the full Supreme Court opinion:
http://www.patentlyo.com/patent/05_2D130o.pdf

For Justice Kennedy's concurring opinion:
http://www.patentlyo.com/patent/05_2D130c1.pdf

For EFF's amicus brief:
http://www.eff.org/legal/cases/ebay_v_mercexchange/eff_amicus_brief.pdf

For EFF's patent-busting project:
http://www.eff.org/patent/

Contact:

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

Related Issues:
May 16, 2006

Wednesday's Arguments on Sealed Documents Set for 10am

San Francisco - The judge in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&T denied a request for a conference today about closing the courtroom from reporters and spectators for tomorrow's hearing in the case, set to begin at 10 a.m. at U.S. District Court in San Francisco, courtroom 6.

EFF's suit accuses AT&T of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). Earlier today, lawyers for AT&T asked the judge in the case to close the courtroom during the discussion about unsealing critical evidence in the case -- including a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents that support EFF's allegations. AT&T wants the documents returned and argues that they should not be used as evidence in the case.

For more on the AT&T case:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
May 16, 2006

Telecom Giant Wants to Keep Public Away from Document Debate

San Francisco - Lawyers for AT&T alerted the Electronic Frontier Foundation (EFF) today that it intends to ask the judge to close the courtroom in Wednesday's hearing in EFF's class-action lawsuit. EFF will oppose the request.

EFF's suit accuses AT&T of illegally handing over its customers' telephone and Internet records and communications to the National Security Agency (NSA). In Wednesday's hearing at U.S. District Court in San Francisco, the judge will hear oral arguments about the unsealing of critical documents in the lawsuit -- including a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents that support EFF's allegations.

For AT&T's letter to the judge:
http://www.eff.org/legal/cases/att/AndersontoWalkerreHearingLogistics.pdf

For more on the AT&T case:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
May 15, 2006

DOJ Intervention Comes Just Days Before Hearing on Sealed Evidence

San Francisco - Early Saturday morning, the United States government filed a motion to dismiss the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&T for illegally handing over its customers' telephone and Internet records and communications to the National Security Agency. The government claims that its legal brief and two affidavits from senior intelligence officials that accompanied the motion are classified, preventing even the parties to the lawsuit, EFF and AT&T, from seeing them.

While EFF was not permitted to see the government's entire brief, in a redacted version made publicly available the government said that the case against AT&T should be immediately terminated because any judicial inquiry into the whether AT&T broke the law could reveal state secrets and harm national security.

"The government is trying to lock out any judicial inquiry into AT&T and the NSA's illegal spying operation," said EFF Staff Attorney Kurt Opsahl. "It is illegal for major telecommunications companies to simply hand over private customer information to the government. They should not be allowed to hide their illegal activity behind government assertions of 'state secrets' to prevent the judiciary from stepping in to expose and punish the illegal behavior. If the government's motion is granted, it will have undermined the freedoms our country has fought so hard to protect."

EFF's federal lawsuit against AT&T alleges that the telecommunications company has given the NSA secret, direct access to the phone calls and emails going over its network, and has been handing over communications logs detailing the activities of millions of ordinary Americans. This week, a USA TODAY report bolstered key allegations in EFF's lawsuit, detailing how AT&T, Verizon, and BellSouth provided phone call records about of tens of millions of their customers to the NSA without any legal authorization. The same week, lawyers at the Justice Department were forced to halt their probe into the DOJ's involvement in the spying program because they were refused security clearance by the NSA.

"The press has already widely reported on the illegal domestic surveillance that is the basis for our case. Allowing a court to determine whether AT&T broke the law would in no way harm national security. Indeed, our case is meant to protect Americans -- by requiring that the AT&T follow the law and protect its customers from unchecked spying into their personal communications," said EFF Staff Attorney Kevin Bankston.

On Wednesday, May 17, at 10 a.m., a U.S. District Court judge in San Francisco will hear oral arguments about the unsealing of critical documents in the lawsuit. The sealed evidence at issue includes a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents that support EFF's allegations. AT&T wants the documents returned and argues that they should not be used as evidence in the case. For more information about attending the hearing, please email press@eff.org.

For the redacted government motion:
http://www.eff.org/legal/cases/att/GovMotiontoDismiss.pdf

For USA TODAY's story:
http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm

For more on the AT&T lawsuit:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
May 12, 2006

Decision Delays Inquiry Into State's History of Voting Machine Problems

San Francisco - The Sixth Circuit Court of Appeals ruled this week that a critical lawsuit aimed at improving the security and integrity of Ohio's voting technology will be put on hold indefinitely. The ruling halts case proceedings until the appeal of the government's motion to dismiss is decided and seriously jeopardizes the chances that critical procedural improvements will be in place by the time voters enter polling places in November.

The Electronic Frontier Foundation (EFF) had intervened in this lawsuit, originally brought by the League of Women Voters of Ohio, in the fall of 2005 on behalf of voter Jeanne White. White's case focuses on the issues surrounding electronic voting and seeks to increase the security and accuracy of Ohio's e-voting technology, as well as to dramatically improve state and local procedures that leave the integrity of the state's e-voting equipment in doubt.

Ohio's closely watched and widely criticized election of 2004 exposed a wide range of problems, complaints, and irregularities in its voting technologies. Among other things, voters reported unacceptably long lines, inadequately trained pollworkers, and voting machines that failed to record their votes correctly. Similar problems were reported in the 2005 elections and in the May 2, 2006, primary, including a chaotic election in Cuyahoga County where election officials have launched a formal investigation. Ohio, however, has no requirements that counties keep formal track of such problems, much less report them to state officials or to the public.

"We had hoped the appellate court would follow the trial court's lead and let the case progress," said EFF Staff Attorney Matt Zimmerman "Without this expedited schedule, the case won't be able to marshal changes to Ohio's voting systems before this November's elections. The state owes it to its citizens to ensure that the problems of the past are identified and won't be repeated. It has, so far, failed to do so."

EFF intends to challenge the Sixth Circuit's recent ruling and to continue to move Ms. White's case forward as quickly as possible. EFF is working with the law firms of Kerger and Associates and Zuckerman, Spaeder, Goldstein, Taylor & Kolker as it pursues this case.

For more on the Ohio suit:
http://www.eff.org/Activism/E-voting/ohio/

For more on electronic voting:
http://www.eff.org/Activism/E-voting/

Contact:

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

Related Issues:
May 9, 2006

"Certified Mail" Allows Mass Mailers to Bypass Spam Filters

San Francisco - AOL has quietly flipped the switch on its "certified mail" service, delivering pay-to-send email to some of its millions of customers.

The Goodmail CertifiedEmail service allows large mass-emailers to pay a fee to bypass AOL's spam filters and get guaranteed delivery directly into AOL customers' inboxes. The Electronic Frontier Foundation (EFF) believes the pay-to-send model could leave nonprofits, small businesses, and other groups with increasingly unreliable service.

"Many groups suffer from what the Wall Street Journal called 'spam filters gone wild,' and their email never reaches many on their mailing lists," said EFF Activism Coordinator Danny O'Brien. "With AOL's system in place, AOL will be taking money from big companies to skip those filters entirely. If ISPs can make money for a premium service that evades their malfunctioning filters, we worry that they won't fix those filters for groups who do not pay."

While the creators of "certified mail" claim that their programs help customers recognize legitimate worthy causes and vital banking mail in their inbox, the first pay-to-send mailing spotted by EFF was a promotion for Overstock.com. Overstock has every right to reach customers who signed up for their mailing list, but just because corporations have the money to pay for email delivery doesn't make that mail more important than any other non-commercial mail.

"We already know what commercial, paid-for mass mail is, but we don't call it certified mail. We call it junk mail," said O'Brien. "Why should paying ISPs for delivery let some companies gain special access to your inbox?"

EFF and hundreds of other groups have joined together in the DearAOL.com coalition, which formed to urge AOL and other ISPs to reject pay-to-send schemes. However, in a pointed example of how ISP control of your inbox can go wrong, last month AOL silently started dropping email that even mentioned DearAOL.com. After EFF publicized the problem, AOL quickly rectified the situation.

For more on the DearAOL.com Coalition:
http://www.dearaol.com

For more on AOL's CertifiedEmail launch:
http://www.dearaol.com/blog

Contact:

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

Related Issues:
April 28, 2006

DOJ Will Assert Military and State Secrets Privilege and Request Dismissal of Lawsuit

San Francisco - The United States government filed a "Statement of Interest" Friday in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&T, announcing that the government would "assert the military and state secrets privilege" and "intervene to seek dismissal" of the case.

EFF's lawsuit accuses AT&T of collaborating with the National Security Agency in its massive surveillance program. EFF's evidence regarding AT&T's dragnet surveillance of its networks, currently filed under seal, includes a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents. This evidence was bolstered and explained by the expert opinion of J. Scott Marcus, who served as Senior Advisor for Internet Technology to the Federal Communications Commission from July 2001 until July 2005

Much of the evidence in the case is currently under seal, as AT&T claims public release of the documents would expose trade secrets. A hearing on the issue is scheduled for May 17th.

For the full Statement of Interest:
https://www.eff.org/legal/cases/att/USA_statement_of_interest.pdf

For more on EFF's suit:
https://www.eff.org/legal/cases/att/

Contact:

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

April 27, 2006

15th Annual Ceremony Highlights Innovations in Information Technology

Washington, DC - The Electronic Frontier Foundation (EFF) will honor craigslist and its leaders, Craig Newmark and Jim Buckmaster Gigi Sohn of Public Knowledge and Jimmy Wales of Wikipedia at its 15th annual Pioneer Awards ceremony. The presentation is at 7pm on Wednesday, May 3 at the International Spy Museum in Washington, DC, in conjunction with the Computers, Freedom, and Privacy conference (CFP).

This year's award winners all represent vital, community-building organizations dedicated to spreading knowledge in or about our digital world. They were nominated by the public and then chosen by a panel of independent judges for their innovations in the realm of information technology.

Craigslist is the world's most-used classified forum in any medium, serving as a non-commercial community service. Craigslist focuses on helping people with their basic needs – starting with housing and jobs – with a pervasive culture of trust. Craigslist's Craig Newmark founded the online community in 1995, and he still acts as a customer service representative. Jim Buckmaster has been craigslist's CEO since November of 2000, helping to transform it into one of the most popular websites in the world while maintaining its renowned public service mission.

Gigi B. Sohn is president and co-founder of Public Knowledge, a nonprofit organization that addresses the public's stake in the convergence of communications policy and intellectual property law, and serves as PK's chief strategist, fundraiser and public face. Sohn often testifies before Congress on intellectual property and technology policy, and she takes an active part in debates about proposed legislation.

Jimmy Wales is the founder and president of the Wikimedia Foundation, a non-profit corporation that operates Wikipedia – a free, online, collaborative encyclopedia. Wikipedia started in January of 2001, and now it's one of the most-used reference sites on the Internet, with editions in over 200 languages.

"I'm thrilled to honor this year's Pioneer Award recipients," said EFF's Executive Director, Shari Steele. "The Internet is a web of communities, among other things, and Craig, Jim, Gigi and Jimmy have all been instrumental in helping to give people the tools they need for sharing information online."

The judges for this year's awards were Kim Alexander (President and Founder, California Voter Foundation), Esther Dyson (editor, Release 1.0, CNET Networks), Edward W. Felten (Professor of Computer Science and Public Affairs, Princeton University), Mitch Kapor (Chair, Open Source Applications Foundation), Drazen Pantic (Co-Director, Location One, New York), Barbara Simons (IBM Research [Retired]and former President ACM), and James Tyre (Founder, The Censorware Project).

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 or to the empowerment of individuals in using computers and the Internet. Past winners include Tim Berners-Lee, Linus Torvalds, and Ed Felten, among many others.

This year, the Pioneer Awards are sponsored by Sling Media, a consumer electronics company working to demystify convergence technologies and to create empowering experiences for the digital media consumer. Sling Media's Slingbox transforms Windows-based laptops, desktops, PDAs, and smartphones into personal on-the-go digital TVs. Learn more about Sling Media at http://www.slingmedia.com.

More on the EFF Pioneer Awards:
https://www.eff.org/awards/pioneer

Contact:

Katina Bishop
Projects Coordinator
Electronic Frontier Foundation
katina@eff.org

April 18, 2006

Arguments Set for April 20 in San Jose

San Jose - On April 20, EFF Staff Attorney Kurt Opsahl will argue Apple v. Does – a case with broad implications for journalists and their right to protect the confidentiality of their sources – before a San Jose, California, appeals court.

Apple Computer, Inc., has sued several unnamed individuals, called "Does," for allegedly leaking information to online reporters about an upcoming product code-named "Asteroid." As part of the suit, Apple has subpoenaed Nfox, the ISP for PowerPage publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles. Apple has also been granted permission to issue subpoenas directly to Electronic Frontier Foundation (EFF) clients PowerPage and AppleInsider for similar information.

The trial court held that if a journalist publishes information a business claims to be a trade secret, this act destroys constitutional protection for the journalist's confidential sources and unpublished materials. EFF and co-counsel Thomas Moore III and Richard Wiebe have appealed, asking the appeals court to correct the error and restore the well-settled constitutional protections for a journalist's confidential information.

"The California courts have a long history of supporting and protecting freedom of the press," said EFF Staff Attorney Kurt Opsahl. "We are looking forward to the opportunity to ask the Court of Appeal to correct a ruling that endangers all journalists."

WHAT:
Apple v. Does (O'Grady v. Superior Court)

WHEN:
April 20, 9:30am

WHERE:
333 W. Santa Clara St. Suite 1060
San Jose, CA 95113

For more on the Apple v. Does case:
https://www.eff.org/Censorship/Apple_v_Does

Contacts:

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

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

Related Issues:
April 17, 2006

Esther Dyson and Danny O'Brien Face Off April 20 in San Francisco

San Francisco - What is the future of email? Should anyone ever have to pay to send it? Or would payments undermine free speech on the Internet? These are just a few of the questions raised recently by AOL's controversial plans to adopt a "certified" email system.

For more on the issues surrounding pay-to-send email, join EFF for a debate on April 20 in San Francisco. EFF's Activism Coordinator Danny O'Brien and tech expert Esther Dyson will face off over the question "Email - Should the Sender Pay?" Entrepreneur and EFF co-founder Mitch Kapor will moderate.

To reserve a seat for this debate, please email press@eff.org.

WHAT:
EFF Debate: "Email - Should the Sender Pay?"

WHEN:
Thursday, April 20th 7-8:30pm

WHERE:
Roxie Film Center 3117
16th Street, San Francisco
(between Valencia and Guerrero)
415-863-1087

RSVP:
press@eff.org

For more on this event:
https://www.eff.org/bayff/aolmail_debate.php

To learn more about the DearAOL campaign against AOL's planned sender-pay system:
http://www.dearaol.com

Some recent coverage of the controversy concerning AOL:
http://news.com.com/AOL+charged+with+blocking+opponents+e-mail/2100-1030_3-6061089.html

For Esther Dyson's editorial, "You've Got Goodmail":
http://www.release1-0.com/freshproduce/article.php?serialnum=FRP200603170000

Contact:

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

Related Issues:
April 13, 2006

Won’t Deliver Emails Mentioning www.DearAOL.com

UPDATE After this press release was sent out Thursday afternoon, AOL stopped blocking email with links to www.DearAOL.com. Officials at the company stated that problems of this nature generally take three to five working days to fix. However, this was fixed after 24 hours of undeliverability - and approximately twenty minutes after this press release was widely distributed. This incident only increases our worry about organizations who don't have the ability to seek instant press attention. The next time AOL's anti-spam filters fail for a small organization – or one without political muscle – will they move so quickly to fix them? Or will they push organizations to just sign up with Goodmail and pay to avoid the problem?

San Francisco - AOL is blocking delivery to AOL customers of all emails that include a link to www.DearAOL.com. Today, over 100 people who signed a petition to AOL tried sending messages to their AOL-using friends, and received a bounce-back message informing them that their email "failed permanently."

"The fact is, ISPs like AOL commonly make these kinds of arbitrary decisions – silently banning huge swathes of legitimate mail on the flimsiest of reasons – every day, and no one hears about it," said Danny O'Brien, Activism Coordinator of the Electronic Frontier Foundation (EFF). "AOL's planned CertifiedEmail system would let them profit from this power by offering to charge legitimate mailers to bypass these malfunctioning filters."

After reports of undelivered email started rolling in to the DearAOL.com Coalition, MoveOn co-founder Wes Boyd decided to see for himself if it was true.

"I tried to email my brother-in-law about DearAOL.com and AOL sent me a response as if he had disappeared," said Boyd. "But when I sent him an email without the DearAOL.com link, it went right through."

While AOL may imply that censoring www.DearAOL.com is part of some anti-spam effort, their own customers are witnessing how faulty AOL's spam measures would be if that were the case.

"I forwarded www.DearAOL.com to my own AOL account and it was censored. Apparently I can't even tell myself about it," said Kelly Tessitore from Framingham, Massachusetts.

"This proves the DearAOL.com Coalition's point entirely: left to their own devices, AOL will always put its own self-interest ahead of the public interest in a free and open Internet," said Timothy Karr, campaign director of Free Press, a national, nonpartisan organization working on media reform and Internet policy issues. "AOL wants us to believe they won't hurt free email when their pay-to-send system is up and running. But if AOL is willing to censor the flow of information now to silence their critics, how could anyone trust that they will preserve the free and open Internet down the road? Their days of saying 'trust us' are over – their credibility is zero, zip, nada."

The DearAOL.com Coalition represents over 15 million people combined – and has grown from 50 member organizations to 600 in a month. Since the beginning of the DearAOL.com campaign, more than 350,000 Internet users have signed letters to AOL opposing its pay to send proposal. Coalition members include craigslist founder Craig Newmark, the Association of Cancer Online Resources, EFF, Free Press, the AFL-CIO, MoveOn.org Civic Action, Gun Owners of America, and others.

For more on the issues surrounding pay-to-send email, join EFF for a debate on April 20 in San Francisco. EFF's O'Brien and tech expert Esther Dyson will face off over the question "Email - Should the Sender Pay?" Entrepreneur Mitch Kapor will moderate.

More information about the DearAOL.com Coalition:
http://www.dearaol.com

More information on next week's debate:
https://www.eff.org/bayff/aolmail_debate.php

Contacts:

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

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

Related Issues:
April 13, 2006

EFF Report Highlights More Unintended Consequences in Seven Years of DMCA

San Francisco - In the seven years since Congress enacted the Digital Millennium Copyright Act (DMCA), examples of the law's impact on legitimate consumers, scientists, and competitors continue to mount. A new report released today from the Electronic Frontier Foundation (EFF), "Unintended Consequences: Seven Years Under the DMCA," collects reports of the misuses of the DMCA -- chilling free expression and scientific research, jeopardizing fair use, impeding competition and innovation, and interfering with other laws on the books. The report updates a previous version issued by EFF in 2003.

The report tells the story of the delay of the disclosure of the Sony BMG "rootkit" vulnerabilities on millions of music CDs. The dangerous software flaws were initially discovered by Princeton graduate student J. Alex Halderman. But Halderman delayed sounding the alarm about the security problems for several weeks so he could consult with lawyers about potential violations of the DMCA. The report also details the DMCA's role in impeding RealNetworks from selling digital music to Apple iPod owners, along with other unintended consequences from the DMCA.

"Rather than being used to stop 'piracy,' the DMCA has predominantly been used to threaten and sue legitimate consumers, scientists, publishers, and competitors," said EFF senior staff attorney Fred von Lohmann. "This law is not being used as Congress intended, and a review of the past seven years makes it clear that reform is needed."

For "Unintended Consequences: Seven Years Under the DMCA":
https://www.eff.org/IP/DMCA/?f=unintended_consequences.html

For more on EFF and the DMCA:
https://www.eff.org/IP/DMCA/

Contact:

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

Related Issues:
April 6, 2006

Internal AT&T Documents Had Been Temporarily Held Back Due To Government's Concerns

San Francisco - The Electronic Frontier Foundation (EFF) on Wednesday filed the legal briefs and evidence supporting its motion for a preliminary injunction in its class-action lawsuit against AT&T. After asking EFF to hold back the documents so that it could review them, the Department of Justice consented to EFF's filing them under seal -- a well-established procedure that prohibits public access and permits only the judge and the litigants to see the evidence. While not a party to the case, the government was concerned that even this procedure would not provide sufficient security and has represented to the Court that it is "presently considering whether and, if so, how it will participate in this case."

"The evidence that we are filing supports our claim that AT&T is diverting Internet traffic into the hands of the NSA wholesale, in violation of federal wiretapping laws and the Fourth Amendment," said EFF Staff Attorney Kevin Bankston. "More than just threatening individuals' privacy, AT&T's apparent choice to give the government secret, direct access to millions of ordinary Americans' Internet communications is a threat to the Constitution itself. We are asking the Court to put a stop to it now."

EFF's evidence regarding AT&T's dragnet surveillance of its networks includes a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents. This evidence was bolstered and explained by the expert opinion of J. Scott Marcus, who served as Senior Advisor for Internet Technology to the Federal Communications Commission from July 2001 until July 2005.

The internal AT&T documents and portions of the supporting declarations have been submitted to the Court under a tentative seal, a procedure that allows AT&T five court days to explain to the Court why the information should be kept from the public.

"The public deserves to know about AT&T's illegal program," said EFF Legal Director Cindy Cohn. "In an abundance of caution, we are providing AT&T with an opportunity to explain itself before this material goes on the public docket, but we believe that justice will ultimately require full disclosure."

The NSA program came to light in December, when the New York Times reported that the President had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies, including AT&T.

"Mark Klein is a true American hero," said EFF Staff Attorney Kurt Opsahl. "He has bravely come forward with information critical for proving AT&T's involvement with the government's invasive surveillance program."

In the lawsuit, EFF is representing the class of all AT&T residential customers nationwide. Working with EFF in the lawsuit are the law firms Traber & Voorhees, Lerach Coughlin Stoia Geller Rudman & Robbins LLP and the Law Office of Richard R. Wiebe.

For the notice of motion for preliminary injunction:
https://www.eff.org/legal/cases/att/NotMot.pdf

For the motion to lodge under temporary seal:
https://www.eff.org/legal/cases/att/MotionReSealing.pdf

For more on EFF's suit:
https://www.eff.org/legal/cases/att/

Contacts:

Derek Slater
Acting Media Coordinator
Electronic Frontier Foundation
derek@eff.org

For Mark Klein:
Miles Ehrlich, Esq.
Ramsey & Ehrlich
miles@ramsey-ehrlich.com

[Note, 04/07 - J. Scott Marcus' title corrected.]

Related Issues:
April 5, 2006

Illegitimate Patent Chills Distance Learning and University Education

San Francisco - An extremely broad patent claiming to cover almost all methods of online testing is coming under fire today.

Test.com has used this illegitimate patent to demand payments from universities with distance education programs that give tests online. However, a patent reexamination application filed by the Electronic Frontier Foundation (EFF) today shows that Test.com wasn't the first to come up with this testing method.

"Bogus patents like this one highlight the problems with the current patent system. This is a good example of exactly what needs to be fixed to make patents useful to innovators and educators alike," Schultz said.

In conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, EFF filed a request for reexamination with the United States Patent and Trademark Office showing that IntraLearn Software Corporation had been marketing an online test-taking system long before Test.com filed its patent request. But Test.com claims that its patent allows it to collect license fees for virtually all online testing methods, preventing educators from developing online coursework and communicating with students over the Internet. As online testing is critical to Internet education, the enforcement of this patent threats academic speech and academic freedom.

"Our nation's education system already faces severe budget constraints and a shortage of resources," said EFF Staff Attorney Jason Schultz. "We shouldn't be diverting resources away from teaching to pay off bogus patent threats."

The challenge to the Test.com patent is the second filing from EFF's Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. The first reexamination request was granted on Monday and involves a Clear Channel patent for a system and method of creating recordings of live performances, locking musical acts into using Clear Channel technology and blocking innovations by others.

Just last week, the United States Supreme Court heard arguments in the eBay v. MercExchange patent case, signaling how important patent issues are in today's economy. EFF filed an amicus brief in that case, asking justices to consider the critical free speech implications in its ruling.

For the full Test.com patent reexamination request:
https://www.eff.org/patent/wanted/test/testcom_reexam.pdf

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

For more on IntraLearn Software:
http://www.intralearn.com/

For more on eBay v. MercExchange:
https://www.eff.org/legal/cases/ebay_v_mercexchange/

Contacts:

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

Jerry Goguen
IntraLearn Software Corporation
jgoguen@intralearn.com

Theodore C. McCullough
Attorney
Lemaire Patent Law Firm

Related Issues:
April 4, 2006

Hundreds Join EFF and Other Groups to Fight for Election Integrity

San Francisco - Hundreds of citizen lobbyists from across the nation will be in Washington, DC, this coming Thursday and Friday, working to help secure the future of safe, reliable electronic voting through the passage of HR 550 -- the Voter Confidence and Increased Accessibility Act. HR 550 would ensure a voter-verified paper record of every vote, establish mandatory random hand-counted audits, and prohibit the use of secret software and wireless communications in voting machines.

The "Lobby Days" were organized by the HR 550 "I Count" Coalition, which includes the Electronic Frontier Foundation (EFF), Common Cause, Verified Voting, Voters Unite, VoteTrustUSA, and Working Assets. The coalition will hold a lobbying training session for activists before they go to work on Thursday.

"HR 550 represents the best opportunity to solve a number of problems related to the use of electronic voting equipment," said EFF Staff Attorney Matt Zimmerman. "By participating in this event, voters will get a chance to make their voices heard in Congress and demand transparency and accountability in elections."

HR 550 has made significant progress in the House of Representatives, largely through the grassroots efforts of voting activists. Lobby Days will help continue the momentum and show members of Congress that many of their constituents are passionate about voting integrity.

Lobby Days Schedule:

Thursday, April 6

Lobbying training session
9am to noon
Human Rights Campaign
1640 Rhode Island Ave. NW
Washington, DC

Meetings with members of Congress and staff
Noon to 6pm
Capitol Hill office buildings

Friday, April 7

Press conference
10am
Rayburn Terrace
(rain location: RHOB 2168)

Additional media availability
10am to 5pm
RHOB 2168

Additional lobbying visits
10am to 5pm
Capitol Hill office buildings

HR 550 "I Count" Coalition:
http://www.icountcoalition.org

EFF's Lobby Days Blog:
https://www.eff.org/deeplinks/archives/cat_evoting_lobby_days.php

Contacts:

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

Derek Slater
Activist
Electronic Frontier Foundation
derek@eff.org

Related Issues:
April 3, 2006

Patent Office Orders Reexamination at EFF's Request

San Francisco - At the request of the Electronic Frontier Foundation (EFF), the US Patent and Trademark Office (PTO) today agreed to reexamine an illegitimate patent held by Clear Channel Communications. The patent -- for a system and method of creating digital recordings of live performances -- locks musical acts into using Clear Channel technology and blocks innovations by others.

"The Patent Office agrees that there are serious questions about the patent's validity," said EFF Staff Attorney Jason Schultz. "This is a significant victory for artists and innovators harmed by Clear Channel's patent and for anyone concerned about overreaching, illegitimate patents."

Clear Channel now has two months to file comments defending its patent, to which EFF will get to respond. The PTO will then determine whether to invalidate the patent. In roughly 70% of instances like this one in which a request for reexamination is granted, the patent is narrowed or completely revoked.

"Patents serve an important role in our economy," said Schultz. "Keeping illegitimate patents out of that system benefits all of us, helping up-and-coming artists and entrepreneurs."

EFF filed the request for reexamination in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm and with the help of students at the Glushko-Samuelson Intellectual Property Clinic at American University's Washington College of Law. The Clear Channel patent challenge is part of EFF's Patent Busting Project, aimed at combating the chilling effects bad patents have on public and consumer interests. The Patent Busting Project seeks to document the threats and fight back by filing requests for reexamination against the worst offenders.

For more information about EFF's request and Clear Channel's patent:
https://www.eff.org/patent/wanted/patent.php?p=clearchannel

For EFF's Patent Busting Project:
https://www.eff.org/patent/

Contacts:

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

Theodore C. McCullough
Attorney
Lemaire Patent Law Firm

Related Issues:
March 31, 2006

DOJ Demands First Look at Documents It Claims Might Be Classified

San Francisco - The Electronic Frontier Foundation (EFF) filed a motion for a preliminary injunction in its class-action lawsuit against AT&T today. However, much of the evidence that was to be included in the motion—as well as the legal arguments based on that evidence—was held back temporarily at the request of the Department of Justice (DOJ). While the government is not a party to the case, DOJ attorneys told EFF that even providing the evidence under seal to the court—a well-established procedure that prohibits public access and permits only the judge and the litigants to see the evidence—might not be sufficient security.

EFF's motion seeks to stop AT&T from violating the law and the privacy of its customers by disclosing to the government the contents of its customers' communications, as part of the National Security Agency's (NSA's) massive and illegal program to wiretap and data-mine Americans' communications. The motion was supported by a number of internal AT&T documents that the government now claims might include classified information.

EFF will seek the Court's permission to publicly release the preliminary injunction motion and supporting documents, and hopes to have redacted versions available after further discussions with the government.

"Openness in court proceedings is fundamental to a free society," said EFF Staff Attorney Kurt Opsahl. "The facts supporting our motion are not classified and are important to the public debate over the propriety of the NSA domestic spying program. The public deserves to know the truth."

The NSA program came to light in December, when the New York Times reported that the President had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies, including AT&T. This surveillance is ongoing, and today's injunction motion seeks to stop the spying while the case is pending.

"AT&T's wholesale diversion of communications into the hands of the NSA violates federal wiretapping laws and the Fourth Amendment," said EFF Staff Attorney Kevin Bankston. "More than just threatening individuals' privacy, AT&T's shameful choice to allow the government to spy on millions of ordinary Americans' communications is a threat to the Constitution itself. We are asking the Court to put a stop to it now."

In the lawsuit, EFF is representing the class of all AT&T residential customers nationwide. Working with EFF in the lawsuit are the law firms Traber & Voorhees, Lerach Coughlin Stoia Geller Rudman & Robbins LLP and the Law Office of Richard R. Wiebe.

For the motion for preliminary injunction:
Brief and some evidence NOT AVAILABLE BY DOJ REQUEST

For more on EFF's suit:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
March 13, 2006

EFF and Other Groups Call for Bills' Withdrawal

San Francisco - A diverse coalition of companies, public interest organizations, and legal scholars, including the Electronic Frontier Foundation (EFF), craigslist, Public Citizen, the US Internet Industry Association (USIIA), the Center for Democracy and Technology (CDT) and Professors Lyrissa C. Barnett Lidsky and Jennifer M. Urban, sent an open letter today to three New Jersey assemblymen, urging them to withdraw their support from two bills designed to eliminate anonymous online speech.

Assembly bills A1327 and A2623 would require Internet service providers to record users' identities and reveal them in any claim of defamation. While aimed at curbing online bad actors, the bills instead run afoul of the First Amendment—which protects the right to speak anonymously—as well as a federal law designed to protect speech in online fora. The bills would require identification of an online poster before the facts were resolved, leading to a flood of unsubstantiated claims designed simply to unmask online speakers.

"Protecting anonymity is vital to maintaining the diversity of viewpoints on the Internet," said EFF Staff Attorney Kurt Opsahl. "Keeping online debates robust enables democracy, even if it allows name-calling and strongly worded opinions about political figures."

The open letter calls for Assemblymen Peter J. Biodi, Wilfredo Caraballo, and Upendra J. Chivukula not to waste taxpayer resources in defending these bills that will inevitably be struck down in court. New Jersey courts are already handling claims of defamation online in a careful and constitutionally appropriate manner, balancing a speaker's anonymity rights with the merits of the plaintiff's claim. The well-established standard in New Jersey and elsewhere for deciding whether to order the identification of anonymous defendants has functioned well to separate ill-founded lawsuits from cases in which identification is appropriate.

As evidence of this balanced approach, the open letter points to the cases available for review on a web site maintained by the Cyberslapp Coalition—several of whose members signed the open letter—at www.cyberslapp.org. The Cyberslapp web site provides briefs, evidence, and opinions from nearly four dozen "John Doe" cases in which the standard has been discussed and applied. The site, which permits search both by keyword and by state of decision, is provided free of charge as a resource for litigants on both sides of Doe disputes.

For the full text of the open letter:
http://eff.org/Privacy/Anonymity/NewJerseyLetter.pdf

The Cyberslapp Coalition:
http://www.cyberslapp.org

Contact:

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

Related Issues:
March 7, 2006

30,000 Email Users Sign Open Letter

San Francisco - Despite AOL's attempt to divide its critics, the DearAOL.com Coalition announced Monday it has grown tenfold from 50 organizations to more than 500 as it fights AOL's controversial plan to create a two-tiered Internet that leaves the little guy behind.

Last week, AOL's proposed "email tax" came under fire from a coalition of political groups on the left and right, businesses and non-profits, charities, and Internet advocacy organizations. More than 400 publications around the world published articles about AOL's plan to allow large mass-emailers to pay to bypass AOL's spam filters and get guaranteed delivery directly into the inboxes of AOL customers—leaving the little guy behind with increasingly unreliable second-tier Internet service.

In just several days, the DearAOL.com Coalition grew to include everything from babysitting co-ops to pony clubs, from farmers markets to biker dailies, from Hawaiian skateboard makers to church groups—demonstrating that small, large, ordinary and extraordinary groups depend on free email delivery. All coalition members are located at www.dearaol.com.

Clearly worried by the coalition's growing momentum, AOL on Friday tried to repackage its already existing "Enhanced Whitelist" as if it were a new program for nonprofits. It also tried to divide the coalition with an offer to give special email privileges to some "qualified" nonprofits while leaving other non-profits, charities, small businesses, and even neighbors with community mailing lists behind. Neither of these addresses the core of the problem: AOL's increased financial incentive to downgrade ordinary email delivery.

"I don't take bribes," said Gilles Frydman, Executive Director of the Association of Cancer Online Resources, a free nonprofit online service for cancer patients. "The solution is not AOL offering a few of us service for free in exchange for our silence—the solution is preserving equal access to the free and open Internet for everyone."

If anything, the net result of AOL's Friday announcement was that they conceded the central point of the DearAOL.com Coalition.

"By offering to move a few of the little guys from the losers circle to the winners circle, AOL conceded the broader point of our coalition—that AOL's would create a two-tiered Internet that leaves many behind with inferior service," said Adam Green, a spokesperson for MoveOn.org Civic Action.

This weekend, the San Jose Mercury News exposed this reality in an editorial entitled, "Paid e-mail will lead to separate, unequal systems free systems will become neglected." It identified AOL's threat to the "free and open" Internet this way: "the temptation would be to neglect the free e-mail system, whose reliability would decline. Eventually, everyone would migrate to the fee-based system. There would be no way around the AOL tollbooth."

"Perversely, AOL's pay-to-send system would actually reward AOL financially for degrading free email for regular customers as they attempt to push people into paid-mail," said Danny O'Brien, Activism Coordinator for the Electronic Frontier Foundation. "AOL should be working to ensure its spam filters don't block legitimate mail, not charging protection money to bypass those filters and offering band-aids to allow some select nonprofits to bypass them as well."

"AOL's pay-to-send scheme threatens the free and open Internet as we know it," said Timothy Karr, campaign director of Free Press, a national, nonpartisan media reform organization. "The Internet needs to be a level playing field. The flow of online information, innovation and ideas is not a luxury to be sold off to the highest bidder."

The DearAOL.com Coalition:
http://www.dearaol.com

San Jose Mercury News editorial:
http://www.mercurynews.com/mld/mercurynews/news/opinion/14023726.htm

Contact:

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

Related Issues:
February 24, 2006

National Conference Call - Tuesday, 1pm EST

This Tuesday, an unlikely coalition of left and right, non-profits and small businesses, and Internet advocacy groups will hold a national telephone news conference call to announce an unprecedented combined campaign against AOL's new "pay-to-send" email proposal – which amounts to an "email tax."

To RSVP for the call, please email Alex@Fenton.com. Space is limited.

Under AOL's recently announced "certified email" proposal, large emailers willing to pay an "email tax" can bypass spam filters and get guaranteed access to people's inboxes—with their messages having a preferential high-priority designation. Charities, small businesses, civic organizing groups, and even families with mailing lists will have no guarantee that their email will be delivered unless they are willing to pay the "email tax" to AOL. AOL's proposed pay-to-send system is the first step down the slippery slope toward dividing the Internet into two classes of users—those who get preferential treatment and those who are left behind. The Internet is a force for democracy and economic innovation because it is open to all Internet users equally – AOL's "email tax" would create an unlevel playing field and harm the Internet forever.

Tuesday's 1pm EST conference call will be co-hosted by Internet free speech advocates the Electronic Frontier Foundation and media policy group Free Press. Participants will include Craig Newmark of Craiglist and representatives from the Gun Owners of America, MoveOn.org Civic Action, and the Association of Cancer Online Resources. Dozens of other concerned groups will be announced on the call as members of the coalition, and details about the campaign will be announced on the call.

WHAT: Conference call to announce campaign against AOL's "email tax"
WHO: Co-hosts: Electronic Frontier Foundation & Free Press
PARTICIPANTS: Craig Newmark (Craigslist), Gun Owners of America, MoveOn.org Civic Action, the Association of Cancer Online Resources
WHEN: Tuesday, February 28, 2006 – 1PM EST
RSVP: Please email Alex@Fenton.com. Space is limited.

Contacts:

Trevor Fitzgibbon or Alex Howe
Fenton Communications
alex@fenton.com

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

Related Issues:
February 16, 2006

EFF Urges Consumers to Claim Clean CDs and Extra Downloads

San Francisco - The Electronic Frontier Foundation (EFF) is urging music fans who purchased Sony BMG music CDs containing flawed digital rights management (DRM) to submit their claims now for clean CDs and extra downloads as part of a class action lawsuit settlement.

"This settlement gives consumers what they thought they were buying in the first place -- clean, safe music that will play on their computers and their iPods as well as their stereo systems," said EFF Staff Attorney Kurt Opsahl.

Anyone who purchased Sony BMG CDs that included First4Internet XCP and SunnComm MediaMax software can receive the same music without DRM. Some will also get downloads of other Sony BMG music from several different services, including iTunes. Music fans have through the end of the year to participate in the settlement, and they should receive their compensation within six to eight weeks of submitting their claim forms. Customers can find out more about the settlement and how to submit their claims at http://www.eff.org/sony.

The problems with the Sony BMG CDs surfaced when security researchers discovered that XCP and MediaMax installed undisclosed--and in some cases, hidden--files on users' Windows computers, potentially exposing music fans to malicious attacks by third parties. The infected CDs also communicated back to Sony BMG about customers' computer use without proper notification.

In addition to compensating consumers, Sony BMG was forced to stop manufacturing CDs with both First4Internet XCP and SunnComm MediaMax software. The settlement also waives several restrictive end user license agreement (EULA) terms and commits Sony BMG to a detailed security review process prior to including any DRM on future CDs.

"This settlement got music fans a fair shake in exchange for a raw deal," said EFF Staff Attorney Corynne McSherry. "If you were upset about this DRM debacle, submitting your claim is one way to show the entertainment industry that you want to be treated with respect and fairness."

EFF and its co-counsel--Green Welling LLP, Lerach, Coughlin, Stoia, Geller, Ruchman and Robbins, and the Law Offices of Lawrence E. Feldman and Associates--along with a coalition of other plaintiffs' class action counsel, reached the settlement after negotiations with Sony BMG in December of 2005.

To submit your claim:
http://www.eff.org/sony

For litigation documents and frequently asked questions:
http://www.eff.org/IP/DRM/Sony-BMG/

Contacts:

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

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

Related Issues:
February 15, 2006

EFF Calls for Limits on Data Collection and Retention

San Francisco - As Congressional hearings about how U.S. Internet companies do business in China are set to begin, the Electronic Frontier Foundation (EFF) is calling for the industry and government to work together to develop simple guidelines to decrease the harm done by participating in authoritarian regimes.

"Without careful thought, even well-meaning Internet companies can become the handmaidens of state repression. Internet routers can be turned into powerful wiretapping tools," said EFF Activism Coordinator Danny O'Brien. "Web servers and search engines can become honeypots of personal data, plundered by state police to identify dissidents."

In an open letter to the Subcommittee on Africa, Global Human Rights, and International Operations and the Subcommittee on Asia and the Pacific, EFF says the best course of action for companies concerned about human rights violations and censorship is to avoid repressive countries all together. However, EFF believes that companies deciding to go forward can mitigate some of the harm.

"In considering how these companies might construct their services to best serve global human rights, we believe that simple guidelines, consciously followed, could significantly limit the damage caused by corporate engagement with these regimes," said EFF Legal Director Cindy Cohn.

EFF's letter gives five courses of action for companies and the US government to consider, including restricting the collection and storage of personal data in oppressive regimes, "bearing witness" and documenting acts of state control, innovating around censorship, and offering encrypted connections to their web services by default.

The joint Subcommittee hearing, "The Internet in China: A Tool for Suppression?" begins Wednesday at 10am EST.

For EFF's open letter:
http://www.eff.org/deeplinks/archives/004410.php

Contacts:

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

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

Related Issues:
February 14, 2006

Illegitimate Patent Locks In Artists and Threatens Innovators

San Francisco - The Electronic Frontier Foundation (EFF) filed a challenge Tuesday to an illegitimate patent from Clear Channel Communications. The patent -- for a system and method of creating digital recordings of live performances -- locks musical acts into using Clear Channel technology and blocks innovations by others.

Clear Channel claims that its patent creates a monopoly on all-in-one technologies that produce post-concert live recordings on digital media and has threatened to sue anyone who makes such recordings with a different system. This has forced bands like the Pixies into using Clear Channel's proprietary technology, and it hurts investment and innovation in new systems developed by other companies.

"Clear Channel shouldn't be able to intimidate artists with bogus intellectual property," said EFF Staff Attorney Jason Schultz. "We hope the Patent Office will take a hard look at Clear Channel's patent and agree that it should be revoked."

The request for reexamination filed with the United States Patent and Trademark Office shows that a company named Telex had in fact developed similar technology more than a year before Clear Channel filed its patent request. EFF, in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm and with the help of students at the Glushko-Samuelson Intellectual Property Clinic at American University's Washington College of Law, wants the patent office to revoke the patent based on this and other extensive evidence.

"The patent system serves an important public purpose in our economy," said Schultz. "Keeping illegitimate patents out of that system helps up-and-coming artists and entrepreneurs succeed for all of us."

The Clear Channel patent challenge is part of EFF's Patent Busting Project, aimed at combating the chilling effects bad patents have on public and consumer interests. Illegitimate patents currently in effect could prevent you from building a hobbyist website or even streaming a wedding video to your friends. The Patent Busting Project seeks to document the threats and fight back by filing requests for reexamination against the worst offenders.

For the full reexamination request:
http://www.eff.org/patent/wanted/clearchannel/CC_reexam.pdf

For more on the evidence against Clear Channel:
http://www.eff.org/patent/wanted/patent.php?p=clearchannel

Contacts:

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

Theodore C. McCullough
Attorney
Lemaire Patent Law Firm

Related Issues:
February 10, 2006

Awards Recognize Leaders on the Electronic Frontier

San Francisco - The Electronic Frontier Foundation (EFF) is calling for nominations for its 2006 Pioneer Awards -- the annual celebration of leaders on the electronic frontier who extend freedom and innovation in the realm of information technology. Past winners have included Tim Berners-Lee, Linus Torvalds, and Ed Felten.

Pioneer Awards nominations are open to individuals or organizations from any country. Nominations are reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.

This year's award ceremony will be held in Washington, DC, in conjunction with the Computers, Freedom and Privacy conference (CFP), which takes place in early May. Persons or representatives of organizations receiving an EFF Pioneer Award will be invited to attend the ceremony at EFF's expense.

How to Nominate Someone for a 2006 Pioneer Award:

You may send as many nominations as you wish by email to pioneer@eff.org, but please use one email per nomination. We will accept nominations until March 1, 2006.

Simply tell us:
1. The name of the nominee
2. The phone number or email address or website by which the nominee can be reached, and, most importantly
3. Why you feel the nominee deserves the award.

Nominee Criteria:

There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply:
1. The nominees must have contributed substantially to the health, growth, accessibility, or freedom of computer-based communications.
2. To be valid, all nominations must contain your reason, however brief, for nominating the individual or organization and a means of contacting the nominee. In addition, while anonymous nominations will be accepted, ideally we'd like to contact the nominating parties in case we need further information.
3. The contribution may be technical, social, economic, or cultural.
4. Nominations may be of individuals, systems, or organizations in the private or public sectors.
5. Nominations are open to all (other than current members of EFF's staff and executive board or this year's award judges), and you may nominate more than one recipient. You may also nominate yourself or your organization.

More on the EFF Pioneer Awards:
http://www.eff.org/awards/pioneer/

Contact:

Katina Bishop
Projects Coordinator
Electronic Frontier Foundation
katina@eff.org

February 9, 2006

Consumers Should Not Use New Google Desktop

San Francisco - Google today announced a new "feature" of its Google Desktop software that greatly increases the risk to consumer privacy. If a consumer chooses to use it, the new "Search Across Computers" feature will store copies of the user's Word documents, PDFs, spreadsheets and other text-based documents on Google's own servers, to enable searching from any one of the user's computers. EFF urges consumers not to use this feature, because it will make their personal data more vulnerable to subpoenas from the government and possibly private litigants, while providing a convenient one-stop-shop for hackers who've obtained a user's Google password.

"Coming on the heels of serious consumer concern about government snooping into Google's search logs, it's shocking that Google expects its users to now trust it with the contents of their personal computers," said EFF Staff Attorney Kevin Bankston. "If you use the Search Across Computers feature and don't configure Google Desktop very carefully—and most people won't—Google will have copies of your tax returns, love letters, business records, financial and medical files, and whatever other text-based documents the Desktop software can index. The government could then demand these personal files with only a subpoena rather than the search warrant it would need to seize the same things from your home or business, and in many cases you wouldn't even be notified in time to challenge it. Other litigants—your spouse, your business partners or rivals, whoever—could also try to cut out the middleman (you) and subpoena Google for your files."

The privacy problem arises because the Electronic Communication Privacy Act of 1986, or ECPA, gives only limited privacy protection to emails and other files that are stored with online service providers—much less privacy than the legal protections for the same information when it's on your computer at home. And even that lower level of legal protection could disappear if Google uses your data for marketing purposes. Google says it is not yet scanning the files it copies from your hard drive in order to serve targeted advertising, but it hasn't ruled out the possibility, and Google's current privacy policy appears to allow it.

"This Google product highlights a key privacy problem in the digital age," said Cindy Cohn, EFF's Legal Director. "Many Internet innovations involve storing personal files on a service provider's computer, but under outdated laws, consumers who want to use these new technologies have to surrender their privacy rights. If Google wants consumers to trust it to store copies of personal computer files, emails, search histories and chat logs, and still 'not be evil,' it should stand with EFF and demand that Congress update the privacy laws to better reflect life in the wired world."

For more on Google's data collection:
http://news.com.com/FAQ+When+Google+is+not+your+friend/2100-1025_3-6034666.html?tag=nl http://www.boston.com/news/nation/articles/2006/01/21/google_subpoena_roils_the_web http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2006/01/20/EDGEPGPHA61.DTL http://news.com.com/%20Bill+would+force+Web+sites+to+delete+personal+info/2100-1028_3-6036951.html

Contact:

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

Related Issues:
February 2, 2006

SunnComm Agrees to Terms of EFF Open Letter

San Francisco - In response to an open letter written by the Electronic Frontier Foundation (EFF), SunnComm Technologies, Inc., has outlined what it has done and will do to address potential security problems caused by its MediaMax CD copy-protection software and to help protect against future vulnerabilities. Use of the software on CDs released by Sony BMG has received significant media attention, but many consumers are unaware that the software was also used by several independent music labels.

SunnComm says it will ensure that future versions of MediaMax will not install when the user declines the end user license agreement (EULA) that appears when a CD is first inserted in a computer CD or DVD drive. SunnComm has also agreed to include uninstallers in all versions of MediaMax software, to submit all future versions to an independent security-testing firm for review, and to release to the public the results of the independent security testing. SunnComm and EFF are discussing how to ensure that legitimate security researchers who have been, are, or will be working to identify security problems with MediaMax will not be accused of copyright violations under the Digital Millennium Copyright Act (DMCA).

In January, SunnComm published a complete list of all music CDs that employ the MediaMax technology and sent a letter to the independent labels using MediaMax with information about a security vulnerability in MediaMax version 5. Music label Sony BMG has separately committed to addressing security concerns arising from CDs using MediaMax.

"We are pleased to be working with EFF to ensure that consumers are notified of this potential vulnerability and our update," said acting SunnComm President and Chief Executive Officer Kevin Clement. "As a software company, we are committed to developing high-quality products and promptly addressing any potential vulnerability, and we appreciate this opportunity to help lead the industry in the development of best practices for both quality and security."

"EFF applauds SunnComm's commitments to better security and privacy practices," said EFF Staff Attorney Kurt Opsahl. "While we continue to disagree with SunnComm on the wisdom of CD copy protection in general, we are pleased that it has taken important steps to notify consumers of the security vulnerability and help resolve the security and privacy issues raised by the MediaMax software."

EFF wrote the open letter to SunnComm because of its concerns about the MediaMax software, which is included with a wide variety of music from independent labels, such as Cuban Link's "Chain Reaction" by Men of Business Records, Peter Cetera's "You Just Gotta Love Christmas" by Viastar Records, and several releases on KOCH Records.

The problems with MediaMax came to light in November and December 2005, after independent security analysts discovered problems on Sony BMG CDs that included MediaMax. EFF and others subsequently brought legal actions against Sony BMG based on its distribution of the MediaMax titles, and a settlement in that case provided a remedy for music fans who bought Sony BMG MediaMax CDs. SunnComm's response to EFF's open letter commits the company to addressing the potential vulnerability for fans who bought such CDs on independent labels and to a continuing process that should help protect fans against future vulnerabilities.

EFF's open letter to SunnComm:
http://www.eff.org/deeplinks/archives/004245.php

SunnComm's response:
http://www.eff.org/IP/DRM/Sony-BMG/response-to-open-letter.pdf

List of CDs with SunnComm MediaMax 5:
http://www.sunncomm.com/CD/List_CD_B.html

List of CDs with SunnComm MediaMax 3:
http://www.sunncomm.com/CD/List_CD_A.html

Contact:

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

Related Issues:
January 31, 2006

Telecom Collaborated with NSA to Spy on Customers

San Francisco - The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T Tuesday, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive and illegal program to wiretap and data-mine Americans' communications.

The NSA program came to light in December, when the New York Times reported that the president had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies.

Reporting has also indicated that those same companies—and AT&T specifically—have given the NSA direct access to their vast databases of communications records, including information about whom their customers have phoned or emailed with in the past. And yet little has been accomplished by this illegal spying: recent reports have shown that the data from this wholesale surveillance has done little more than waste FBI resources on dead leads.

"The NSA program is apparently the biggest fishing expedition ever devised, scanning millions of ordinary Americans' phone calls and emails for 'suspicious' patterns, and it's the collaboration of US telecom companies like AT&T that makes it possible," said EFF Staff Attorney Kevin Bankston. "When the government defends spying on Americans by saying, 'If you're talking to terrorists we want to know about it,' that's not even close to the whole story."

In the lawsuit, EFF alleges that AT&T, in addition to allowing the NSA direct access to the phone and Internet communications passing over its network, has given the government unfettered access to its over 300 terabyte "Daytona" database of caller information—one of the largest databases in the world.

"AT&T's customers reasonably expect that their communications are private and have long trusted AT&T to follow the law and protect that privacy. Unfortunately, AT&T has betrayed that trust," said EFF Senior Staff Attorney Lee Tien. "At the NSA's request, AT&T eviscerated the legal safeguards required by Congress and the courts with a keystroke."

By opening its network and databases to unrestricted spying by the government, EFF alleges that AT&T has violated the privacy of AT&T customers and the people they call and email, as well as broken longstanding communications privacy laws.

While other organizations are suing the government directly, EFF is seeking to protect Americans' privacy by stopping the collaboration of AT&T with the illegal NSA spying program and making it economically impossible for AT&T to continue to give its customers' information to the government.

"Congress has set up strong laws protecting the privacy of your communications, strictly limiting when telephone and Internet companies can subject your phone calls to government scrutiny," said EFF Staff Attorney Kurt Opsahl. "The companies that have betrayed their customers' trust by illegally handing the NSA direct access to their networks and databases must be brought to account. AT&T needs to put a sign on its door that reads, 'Come Back With a Warrant.'"

In the suit filed Tuesday, EFF is representing the class of all AT&T customers nationwide. EFF is seeking an injunction to stop AT&T participation in the illegal NSA program, as well as billions of dollars in damages for violation of federal privacy laws. Working with EFF in the lawsuit are the law firms Traber & Voorhees, and Lerach Coughlin Stoia Geller Rudman & Robbins LLP.

For the full complaint:
http://www.eff.org/legal/cases/att/att-complaint.pdf

For more on EFF's suit:
http://www.eff.org/legal/cases/att/

Contact:

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

Related Issues:
January 27, 2006

EFF Asks Justices to Consider Critical Free-Speech Implications

San Francisco - The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the United States Supreme Court Thursday, asking justices to overturn a court ruling in a patent case with dangerous implications for free speech and consumers' rights. The Public Patent Foundation, the American Library Association, the American Association of Law Libraries, and the Special Library Association joined EFF on the brief.

At issue is a case involving online auctioneer eBay and a company called MercExchange. Last year, the Federal Circuit Court of Appeals ruled that eBay violated MercExchange's online auction patents and that eBay could be permanently enjoined, or prohibited, from using the patented technology. But as part of the ruling, the court came to a perilous conclusion, holding that patentees who prove their case have a right to permanent injunctions under all but "exceptional circumstances," like a major public health crisis. This radical rule created an "automatic injunction" standard that ignored the traditional balancing and discretion used by judges to consider how such a decision might affect other public interests--including free speech online.

"As more and more people use software and Internet technology to express themselves online, the battle over software patents has grave implications for online speech," said EFF Staff Attorney Corynne McSherry. "Courts must work harder than ever to ensure that technologies like blogs, email, online video, and instant messaging remain free and available to the public."

The lower court's ruling stems in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress.

"Part of the court's duty in patent cases is to make sure that the system helps the public's right to free speech instead of hurting it," said EFF Staff Attorney Jason Schultz. "If this ruling is allowed to stand, courts won't be able to do what's right."

For the full brief:
http://www.eff.org/legal/cases/ebay_v_mercexchange/eff_amicus_brief.pdf

For more on patents and how bad law can hurt the public:
http://www.eff.org/patent

Contacts:

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

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

Related Issues:
January 25, 2006

Important Milestone for Digital Copyright Law

San Francisco - A federal district court in Nevada has ruled that Google does not violate copyright law when it copies websites, stores the copies, and transmits them to Internet users as part of its Google Cache feature. The ruling clarifies the legal status of several common search engine practices and could influence future court cases, including the lawsuits brought by book publishers against the Google Library Project. The Electronic Frontier Foundation (EFF) was not involved in the case but applauds last week's ruling for clarifying that fair use covers new digital uses of copyrighted materials.

Blake Field, an author and attorney, brought the copyright infringement lawsuit against Google after the search engine automatically copied and cached a story he posted on his website. Google responded that its Google Cache feature, which allows Google users to link to an archival copy of websites indexed by Google, does not violate copyright law. The court agreed, holding that the Cache qualifies as a fair use of copyrighted material.

"This ruling makes it clear that the Google Cache is legal and clears away copyright questions that have troubled the entire search engine industry," said Fred von Lohmann, EFF senior staff attorney. "The ruling should also help Google in defending against the lawsuit brought by book publishers over its Google Library Project, as well as assisting organizations like the Internet Archive that rely on caching."

Field v. Google ruling:
http://www.eff.org/IP/blake_v_google/google_nevada_order.pdf

Contact:

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

Related Issues:
January 19, 2006

But Broader Privacy Concerns Remain

But Broader Privacy Concerns Remain

San Francisco - Yesterday, the Justice Department asked a federal court in San Jose, California to force Google to turn over search records for use as evidence in a case where the government is defending the constitutionality of the Child Online Protection Act (COPA). Google has refused to comply with a subpoena for those records, based in part on its concern for its users' privacy.

COPA is a federal law that requires those who publish non-obscene, constitutionally protected sexual material online to take difficult and expensive steps to prevent access by minors, steps that would chill publishers of sexual material as well as the adults who want to access such material anonymously. EFF is one of the plaintiffs in the First Amendment challenge to COPA.

The subpoena to Google currently asks for a random sampling of one million URLs from Google's database of web sites on the Internet. More importantly, the DOJ is also subpoenaing the text of each search string entered into Google's search engine over a one-week period, absent any information identifying the people who entered the search terms.

"The government is overreaching here, asking Google to do its dirty work and collect information about the Internet speech activities of Google users," said EFF Staff Attorney Kurt Opsahl. "Last month, the federal court rejected many of the government's over broad discovery requests to its opposing parties. Rather than learn its lesson, the DOJ continues to push for overreaching discovery, this time from a company that isn't even a party to the case."

Google has cited its concern for user privacy as a reason for not complying with the subpoena, in addition to the unreasonable burden that compliance would place on Google and the proprietary nature of its query database. In particular, Google is rightly concerned that many of the randomly selected search queries would contain personal information about Google users.

While EFF applauds Google for defending its users' privacy in this case, the current controversy only highlights the broader privacy problem: Google logs all of the searches you make, and most if not all of those queries are personally identifiable via cookies, IP addresses, and Google account information.

"The only way Google can reasonably protect the privacy of its users from such legal demands now and in the future is to stop collecting so much information about its users, delete information that it does collect as soon as possible, and take real steps to minimize how much of the information it collects is traceable back to individual Google users," said EFF Staff Attorney Kevin Bankston. "If Google continues to gather and keep so much information about its users, government and private attorneys will continue to try and get it."

Importantly, users can also take steps to protect their privacy from Google, the government, and others, by using anonymizing technologies such as Tor when surfing the web. Tor helps hide your IP address from Google so that even if the lawyers come knocking, Google cannot identify you by your searches.

More about Tor:
http://tor.eff.org/

Contacts:

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

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

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

Related Issues:
January 6, 2006

Customers to Get Clean CDs and Extra Downloads Because of Flawed Copy-Protection

New York - A US District Court judge in New York gave preliminary approval Friday to a settlement for music fans who purchased Sony BMG music CDs containing flawed copy protection programs.

Under the proposed settlement, Sony BMG will stop manufacturing CDs with both First4Internet XCP and SunnComm MediaMax software. People who have already purchased the flawed CDs will be offered the same music without digital rights management (DRM), and some will also receive downloads of other Sony BMG music from several different services, including iTunes. The settlement would also waive several restrictive end user license agreement (EULA) terms and commit Sony BMG to a detailed security review process prior to including any DRM on future CDs, as well as providing for adequate pre-sale notice to consumers in the future.

Consumers can exchange CDs with XCP software for clean CDs now, but the rest of the settlement benefits will not be available until an official notice to the class has been issued. The court ordered that the notice--via newspaper ads, Google ads, email and other means--must occur by February 15. Once that notice goes out, consumers can begin submitting claims for settlement benefits and should get those benefits within 6-8 weeks of submitting the proof of claim form.

To help consumers figure out what the settlement means to them, EFF has posted a list of frequently asked questions (FAQ) on its website. The FAQ tells music fans how to return their flawed CDs, how to get their clean CDs and downloads in exchange, and how to opt-out of this settlement. The deadline to opt-out of the settlement is May 1, 2006.

"The settlement helps consumers finally get music that will play on their computers without invading their privacy or eroding their security," said EFF Staff Attorney Corynne McSherry. "Now that the court has given preliminary approval, the next step is to make sure that the millions of music fans who bought these XCP and MediaMax CDs understand what is available and how to get it."

The problems with the Sony BMG CDs surfaced when security researchers discovered that XCP and MediaMax installed undisclosed--and in some cases, hidden--files on users' Windows computers, potentially exposing music fans to malicious attacks by third parties. The infected CDs also communicated back to Sony BMG about customers' computer use without proper notification.

EFF and its co-counsel--Green and Welling, Lerach, Coughlin, Stoia, Geller, Ruchman and Robbins, and the Law Offices of Lawrence E. Feldman and Associates--along with a coalition of other plaintiffs' class action counsel, reached the settlement after negotiations with Sony BMG over the last month.

You can stay updated on the progress of the settlement agreement by visiting the FAQ page.

FAQ on Sony BMG settlement proposal:
http://www.eff.org/IP/DRM/Sony-BMG/settlement_faq.php

Contacts:

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

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

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

Related Issues:
January 4, 2006

Fear of Legal Action Chills Computer Security Researchers

San Francisco - The Electronic Frontier Foundation (EFF) today sent an open letter to EMI Music -- the record label representing artists including Paul McCartney and Coldplay -- calling on it to agree not to pursue any legal action against computer security researchers who examine the copy-protection technologies used on some EMI CDs.

In late 2005, independent researchers uncovered security problems with Sony-BMG copy-protected CDs, forcing the label to issue patches and uninstallers to those customers who had played the CDs on Windows computers. Several record labels owned by EMI, including Virgin Records, Capitol Records, and Liberty Records, use similar copy-protection technologies supplied by Macrovision. On those CDs, an end user license agreement (EULA) forbids reverse engineering for any reason, including security testing. In addition, the Digital Millennium Copyright Act (DMCA) has chilled the efforts of computer security researchers interested in examining copy-protected CDs.

In the open letter published Wednesday, EFF urges EMI Music to publicly declare that it will not take legal action against computer security researchers who study copy-protected CDs released by record labels owned by EMI.

"Music fans deserve to know whether EMI's copy-protected CDs are exposing their computers to security risks," said Fred von Lohmann, senior staff attorney with EFF. "When it comes to computer security, it pays to have as many independent experts kick the tires as possible, and that can only happen if EMI assures those experts that they won't be sued for their trouble."

Full text of the open letter to EMI Music:
http://eff.org/IP/DRM/emi.pdf

Contact:

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

Related Issues:
December 29, 2005

“The proposed settlement will provide significant benefits for consumers who bought the flawed CDs,” said EFF Legal Director Cindy Cohn. "Under the terms, those consumers will get what they thought they were buying--music that will play on their computers without restriction or security risk. EFF is continuing discussions with Sony BMG, however, and believes that there is more they can do to protect music lovers in the future.”

"Sony agreed to stop production of these flawed and ineffective DRM technologies,” noted EFF Staff Attorney Kurt Opsahl. “We hope that other record labels will learn from Sony’s hard experience and focus more on the carrot of quality music and less on the stick of copy protection.”

Electronic Frontier Foundation (EFF) joined in this preliminary settlement agreement with Sony BMG this week to settle several class action lawsuits filed due to Sony's use of flawed and overreaching computer program in millions of music CDs sold to the public. The proposed terms of settlement have been presented to the court for preliminary approval and will likely be considered in a hearing set for January 6, 2005 in federal court in New York City.

Related Issues:
December 23, 2005

Raleigh, North Carolina - After a series of lawsuits led by the Electronic Frontier Foundation (EFF) to defend North Carolina's election integrity laws, controversial electronic voting machine manufacturer Diebold Election Systems finally withdrew from the state's voting machine procurement process on Thursday.

In November, Diebold filed suit against the North Carolina Board of Elections to try to avoid a state requirement that vendors place into escrow all source code "that is relevant to functionality, setup, configuration, and operation of the voting system." Under a strong new state law, this code is to be available to the Board of Elections and the chairs of the state political parties for review so that they could look for security vulnerabilities. EFF intervened in the case on behalf of local voter integrity advocate Joyce McCloy and succeeded in convincing the judge to dismiss the case and require Diebold to comply.

Despite Diebold's open admission that it could not meet the state requirements for voting machine integrity, the Board of Elections later agreed to certify Diebold. EFF filed suit against the Board of Elections last week, arguing that the Board had violated its own obligations to perform extensive security-related tests of all of the code on all certified systems prior to certification. The court denied EFF's motion, but Diebold was nonetheless forced to withdraw from the North Carolina procurement process because it did not escrow its code.

In a letter to the Board of Elections on Thursday, Diebold indicated that it is still unwilling to comply with the law. Instead, it offered to help the state "revise" the law so that "all vendors will be able to comply with the state election law."

"The purpose of election integrity law is to ensure that votes are accurately counted, not to ensure that all equipment vendors can comply," said Matt Zimmerman, EFF's Staff Attorney specializing in electronic voting issues. "The law requires voting machine transparency for good reason. All vendors must realize that the public will not and should not accept a process that forces them to simply trust, but not verify, their votes are accurately counted."

By withdrawing from North Carolina's electronic voting contract, Diebold cedes the market to competitor ES&S. The rival company has stated that it will comply with all state escrow requirements.

Contacts:

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

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

Related Issues:
December 16, 2005

Opposes Prison Mail Ban on Materials Printed from Internet

The Electronic Frontier Foundation (EFF) on behalf of Prison Legal News told a federal court Wednesday that Georgia state prisoners should be allowed to receive material printed from the Internet through the mail.

Although Georgia state prisons allow prisoners to receive handwritten letters in the mail, Georgia prison policy also includes a blanket ban on any incoming mail containing printouts from the Internet. Since prisoners cannot themselves access the Internet, Internet materials printed and mailed by family and friends are often the only way for them to receive valuable legal information, health advice, and religious materials. In a friend-of-the-court brief for a case filed by Georgia prisoner Danny Williams, EFF argues that this indiscriminate and arbitrary ban on Internet-generated materials violates prisoners' First Amendment rights. Several courts in other states have already ruled that mail policies like the one at issue here are unconstitutional.

"Georgia prisons are violating the rights of prisoners and those who correspond with them by senselessly allowing prisoners to receive handwritten mail but prohibiting printouts of material from the Internet," said EFF Staff Attorney Kevin Bankston. "It makes no sense and serves no legitimate interest for a prison to prohibit a prisoner from receiving, for example, a printout of the latest issue of Prison Legal News, or information from the Internet about health issues like AIDS that can be life-or-death issues for prisoners."

Prison Legal News is a non-profit legal magazine, publishing monthly review and analyses of prisoner rights, prisoner-relevant legislation and court rulings, and news about general prison issues. The majority of Prison Legal News subscribers, as well as most of its writers, are currently incarcerated.

EFF was assisted in this case by attorney Sarah M. Shalf of Bondurant, Mixson & Elmore, LLP in Atlanta, Georgia.

For the brief filed in this case:
http://eff.org/legal/cases/williams_v_donald/EFF_PLN_amicus.pdf

Contact:

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

Related Issues:
December 9, 2005

Online Rights Canada Launches with EFF, CIPPIC Support

Toronto - Online Rights Canada (ORC) launched in Canada Friday, giving Canadians a new voice in critical technology and information policy issues. The grassroots organization is jointly supported by the Canadian Internet Policy & Public Interest Clinic (CIPPIC) and the Electronic Frontier Foundation (EFF).

"Canadians are realizing in ever-greater numbers that the online world offers tremendous opportunities for learning, communicating, and innovating, but that those opportunities are at risk as a result of corporate practices, government policies and legal regimes that hinder online privacy and free speech," said Philippa Lawson, Executive Director and General Counsel of CIPPIC. "Online Rights Canada provides a home on the Internet for grassroots activism on digital issues that are important to ordinary Canadians."

"With the Canadian government preparing for a January election, all of last year's legislation is back on the drawing board. Canadians now have another chance to present a public interest perspective on issues like copyright reform and increased government surveillance," said Ren Bucholz, EFF's Policy Coordinator, Americas. "We are happy to be launching ORC at such a critical time."

One of ORC's first actions is a petition drive against unwarranted surveillance law. A bill proposed in Parliament last month would have allowed law enforcement agencies to obtain personal information without a warrant and forced communications providers to build surveillance backdoors into the hardware that routes phone calls and Internet traffic. The petition asks Canadian lawmakers to protect citizens' privacy rights when the new government convenes in 2006. Other important issues for ORC will include copyright law, access to information, and freedom from censorship.

"Today, ORC focuses on digital copyright and lawful access. But there is no reason to restrict the site to those two issues," said CIPPIC Staff Counsel David Fewer. "Our hope is that ORC will evolve into the first place to go for Canadians looking for opportunities to protect their online rights. Anyone can be an activist - Online Rights Canada will give you the tools you need."

Online Rights Canada is the latest group to join the global fight for digital rights. Digital Rights Ireland launched earlier this week, and the Open Rights Group launched in the United Kingdom last month.

For Online Rights Canada:
http://www.onlinerights.ca

Contacts:

Ren Bucholz
Policy Coordinator, Americas
Electronic Frontier Foundation
ren@eff.org

Philippa Lawson
Executive Director
Canadian Internet Policy and Public Interest Clinic
plawson@uottawa.ca

Related Issues:
December 8, 2005

EFF Asks Court to Void Approval of Diebold and Others Without Source Code Review

Raleigh, North Carolina - The Electronic Frontier Foundation (EFF) on Thursday filed a complaint against the North Carolina Board of Elections and the North Carolina Office of Information Technology Services on behalf of voting integrity advocate Joyce McCloy, asking that the Superior Court void the recent illegal certification of three electronic voting systems.

North Carolina law requires the Board of Elections to rigorously review all voting system code "prior to certification." Ignoring this requirement, the Board of Elections on December 1st certified voting systems offered by Diebold Election Systems, Sequoia Voting Systems, and Election Systems and Software without having first obtained – let alone reviewed – the system code.

"This is about the rule of law," said EFF Staff Attorney Matt Zimmerman. "The Board of Elections has simply ignored its mandatory obligations under North Carolina election law. This statute was enacted to require election officials to investigate the quality and security of voting systems before approval, and only approve those that are safe and secure. By certifying without a full review of all relevant code, the Board of Elections has now opened the door for North Carolina counties to purchase untested and potentially insecure voting equipment."

North Carolina experienced one of the most serious malfunctions of e-voting systems in the 2004 presidential election when over 4,500 ballots were lost in a voting system provided by e-voting vendor UniLect Corp. Electronic voting systems across the country have come under fire during the past several years as unexplained malfunctions combined with efforts by vendors to protect their proprietary systems from meaningful review have left voters with serious questions about the integrity of the voting process.

"North Carolina voters deserve to have their election laws enforced," said co-counsel Don Beskind of the Raleigh law firm of Twiggs, Beskind, Strickland & Rabenau, P.A. "Election transparency is a requirement, not an option. The General Assembly passed this law unanimously, and it is now time for the Board of Elections to meet their obligations."

On behalf of McCloy, EFF and Beskind intervened in – and convinced a judge to dismiss – a separate lawsuit filed last month by Diebold, which sought to be exempted from the state's transparency laws. Diebold represented to the court that it would be "unable" to comply with the code escrow requirement of the statute. Inexplicably, the Board of Elections certified Diebold despite its admitted inability to comply with the law.

A hearing in McCloy's case against the Board of Elections is set for Wednesday, December 14. EFF and Beskind have asked the Court for a temporary restraining order preventing North Carolina's 100 counties from purchasing any of the recently certified systems unless and until the Board of Elections complies with its statutory obligations.

For the full complaint:
http://www.eff.org/Activism/E-voting/EFF_Mandamus_Complaint_TRO_20051208140945.pdf

Contact:

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

Related Issues:
December 7, 2005

EFF Urges New York Judge to Reject Latest Surveillance Request

New York - The Electronic Frontier Foundation (EFF) has asked a federal magistrate judge in New York City to reject a Department of Justice (DOJ) request to track a cell phone user without first showing probable cause of a crime. In a brief filed in New York on Tuesday, EFF and the Federal Defenders of New York argue that no law authorizes the government's request, and that granting the order would threaten Americans' Fourth Amendment right against unreasonable searches.

This latest briefing comes after a decision last week in Maryland denying a similar order, which combined with two recent denials published by federal courts in New York and Texas, represents an unprecedented judicial rebuke to the DOJ's surveillance practices. The DOJ's apparently routine practice of asking for and receiving cell-tracking orders without probable cause only recently came to light as a result of these newly published decisions typically, such requests are made and granted in secret, without any public accounting.

"Even though three federal courts have now completely rejected the Justice Department's arguments for tracking a cell phone without probable cause, it is still asking other judges for these plainly illegal surveillance orders," said Kevin Bankston, EFF Staff Attorney. "How many public denials is it going to take before the Justice Department either stops seeking such orders altogether, or is willing to appeal one of these decisions and subject its baseless arguments to scrutiny by higher courts?"

The DOJ, despite claims that its cell phone tracking requests are routine, necessary, and perfectly legal, has so far chosen not to appeal any of the recent decisions.

For this brief:
http://eff.org/legal/cases/USA_v_PenRegister/EFF_FDNY_reply_brief.pdf

For more on cell phone tracking:
http://www.eff.org/legal/cases/USA_v_PenRegister/

Contact:

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

December 6, 2005

Click here for more on the issues with the software patch.

SunnComm Makes Security Update Available To Address Recently Discovered Vulnerability On Its MediaMax Version 5 Content Protection Software, Which Is Included On Certain SONY BMG CDs

San Francisco, CA and New York, NY - The Electronic Frontier Foundation (EFF) and SONY BMG Music Entertainment (SONY BMG) said today that SunnComm is making available a software update to address a security vulnerability with its MediaMax Version 5 content protection software on certain SONY BMG compact discs (CDs). The vulnerability was discovered by the security firm iSEC Partners after EFF requested an examination of the SunnComm software.

"We're pleased that SONY BMG responded quickly and responsibly when we drew their attention to this security problem," said EFF staff attorney Kurt Opsahl. "Consumers should take immediate steps to protect their computers."

"We're grateful to EFF and iSEC for bringing this to our attention," said Thomas Hesse, president, Global Digital Business, SONY BMG. "We believe that the availability of the update coupled with our campaign to notify customers will appropriately address the CDs with MediaMax Version 5 in the market."

SunnComm as well as independent software security firm NGS Software have determined that the security vulnerability is fully addressed by the update. NGS Director Robert Horton said, "After carefully researching the security vulnerability presented to us by SONY BMG, we have determined that it is not uncommon and, importantly, it is easily fixed by applying a software update."

The security vulnerability on SunnComm MediaMax Version 5 software differs from that reported in early November on First4Internet XCP software contained on certain SONY BMG CDs. A full list of the 27 U.S. SunnComm MediaMax Version 5 titles is included in the link below. Consumers can download the software update that is designed to address this security vulnerability from SunnComm's and Sony BMG's websites at http://www.sunncomm.com/support/updates/update.asp and http://www.sonybmg.com/mediamax.

The security issue involves a file folder installed on users' computers by the MediaMax software that could allow malicious third parties who have localized, lower-privilege access to gain control over a consumer's computer running the Windows operating system.

SONY BMG will notify consumers about this vulnerability and the update through the banner functionality included on the player, as well as through an Internet-based advertising campaign. The update is also being provided to major software and Internet security companies. EFF and SONY BMG urge all consumers who receive notice to download and install the patch immediately. In accordance with standard information security practices, EFF and iSEC delayed public disclosure of the details of the exploit to provide SunnComm the opportunity to develop an update.

Full list of titles affected:
http://www.sonybmg.com/mediamax/titles.html

Links to patch:
http://www.sunncomm.com/support/updates/update.asp
http://www.sonybmg.com/mediamax

iSEC Partners Report on the Vulnerability:
http://www.eff.org/IP/DRM/Sony-BMG/MediaMaxVulnerabilityReport.pdf

iSEC Partners:
http://www.isecpartners.com

NGS:
http://www.ngssoftware.com

Contacts:

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

Cory Shields
Sony BMG
212-833-4647

John McKay
Sony BMG
212-833-5520

Related Issues:
December 2, 2005

Board of Elections Ignores Rules to Escrow Code, Identify Programmers

Raleigh, North Carolina - The North Carolina Board of Elections certified Diebold Election Systems to sell electronic voting equipment in the state yesterday, despite Diebold's repeated admission that it could not comply with North Carolina's tough election law. The Electronic Frontier Foundation (EFF) believes that this raises important questions about the Board of Elections' procedures as well as the integrity of Diebold's bid for certification.

In all, three companies were certified for e-voting in North Carolina: Diebold, Sequoia Voting Systems, and Election Systems & Software. However, Keith Long, an advisor to the Board of Elections who was formerly employed by both Diebold and Sequoia, has said that "none of them" could meet the statutory requirement to place their system code in escrow. Instead of rejecting all applications and issuing a new call for bids as required by law, the Board chose to approve all of the applicants.

"The Board of Elections has simply flouted the law," said EFF Staff Attorney Matt Zimmerman. "In August, the state passed tough new rules designed to ensure transparency in the election process, and the Board simply decided to take it upon itself to overrule the legislature. The Board's job is to protect voters, not corporations who want to obtain multi-million dollar contracts with the state."

Last month, Diebold obtained a broad temporary restraining order that allowed it to evade key transparency requirements without criminal or civil liability. The law requires escrow of the source code for all voting systems to be certified in the state and identification of programmers. Diebold claimed that it could not comply because of its reliance on third-party software.

Monday, responding to EFF's arguments, a judge dismissed Diebold's request for broad exemptions to the law and told Diebold that if it wanted to continue in its certification bid, it must follow the law or face liability. Diebold had told the court that it would likely withdraw from the bidding process if it was not granted liability protection. But instead, Diebold went forward with the certification bid.

Diebold's certification now means it is permitted to sell e-voting equipment in North Carolina. But Zimmerman says that any county that buys from Diebold is taking a risk.

"If Diebold's certification is revoked, counties using their equipment could be left holding a very expensive bag," Zimmerman said.

Despite Long's assertion, at least one Diebold competitor -- Nebraska-based Election Systems & Software -- has publicly stated that it is capable of meeting the escrow requirement for the code used it its system.

For more on the judge's decision Monday:
http://www.eff.org/news/archives/2005_11.php#004203

Contact:

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

Related Issues:
December 1, 2005

EFF Bows Out of Broken Process

EFF Bows Out of Broken Process

San Francisco - The Electronic Frontier Foundation (EFF) today released a report entitled "DMCA Triennial Rulemaking: Failing the Digital Consumer," describing why the third triennial DMCA rulemaking, currently underway before the U.S. Copyright Office, does not effectively address the concerns of American digital media consumers. In light of the shortcomings of the DMCA rulemaking procedure, EFF will not propose any DMCA exemptions for the 2006-2009 triennial rulemaking period.

Digital media consumers are finding themselves increasingly hemmed in by "digital rights management" (DRM) restrictions on digital music, movies, video games, and software. The Digital Millennium Copyright Act of 1998 (DMCA) generally prohibits consumers from circumventing DRM mechanisms that control access to DVDs, CDs, and other digital media products. In an effort to ensure that these DRM mechanisms would not impede lawful uses of copyrighted works, however, Congress included what it described as a "fail-safe" mechanism in the DMCA rulemaking proceeding to be held every three years by the Copyright Office. The law delegates to the Copyright Office and Librarian of Congress the power to grant three-year exemptions to the DMCA's prohibition on circumventing DRM restrictions where the restrictions would otherwise encroach on lawful uses of copyrighted works.

Today is the last day to submit proposals for DMCA exemptions to the Copyright Office as part of the latest triennial rulemaking. EFF has participated in each of the two prior rulemakings in 2000 and 2003, each time asking the Copyright Office to create exemptions for perfectly lawful consumer uses for digital media that are encumbered by DRM. The Copyright Office has rejected all of EFF's previous proposals.

Based on its prior experience with the rulemaking procedure, as well as the increasing pervasiveness of DRM restrictions on digital media products, EFF has concluded that the triennial rulemaking does not effectively address the concerns of digital media consumers. Instead, EFF's report calls on Congress to take legislative action to reform and repair the DMCA rulemaking process.

"When the Copyright Office is unwilling to grant a DMCA exemption that would allow consumers to play copy-protected CDs on their computers, you know the rulemaking process is failing digital media consumers," said Fred von Lohmann, Senior Staff Attorney with EFF. "In the wake of the Sony BMG DRM debacle, it's time for Congress get involved on behalf of American consumers."

"DMCA Triennial Rulemaking: Failing Consumers Completely":
http://www.eff.org/IP/DMCA/copyrightoffice/DMCA_rulemaking_broken.pdf

For more on why EFF won't participate:
http://www.eff.org/deeplinks/archives/004212.php

For more on DMCA rulemaking:
http://www.eff.org/IP/DMCA/copyrightoffice/

Contact:

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

Related Issues:
November 30, 2005

EFF Fights Heavy-Handed Tactics From Satellite TV Giant

San Francisco - The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford University Law School filed an amicus brief in the Ninth Circuit Court of Appeals Wednesday, asking judges to protect legitimate researchers from the heavy-handed tactics of the DirecTV Group, Inc., a worldwide provider of digital television entertainment, broadband satellite networks and services, and global video and data broadcasting.

Federal law makes it illegal to intercept satellite TV signals without authorization and also bans modifying or assembling interception tools for sale or distribution. In the case before the Ninth Circuit, DirecTV claims that it can sue individuals for both interception of its signal as well as modification of receiving equipment in cases where altered smart cards are simply inserted into standard television equipment. DirecTV claims that inserting a smart card into preexisting television equipment constitutes "assembling" a pirate device. The amicus brief claims that DirecTV is overreaching and also points out that legitimate security researchers would be threatened under the proposed misreading of the law. A lower court has already ruled that DirecTV cannot sue on this theory and dismissed DirecTV's attempt to "double-dip" by punishing individuals twice for a single offense.

"Researchers are constantly assembling, modifying, and building smart card components in furtherance of scientific knowledge and innovation," said EFF Staff Attorney Jason Schultz. "Congress clearly meant to exclude these beneficial activities from any legal liability. The court below understood this, and we hope the Appeals Court agrees."

Over the past few years, DirecTV has orchestrated a nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal. The company began its crusade by raiding smart card device distributors to obtain their customer lists, then sent over 170,000 demand letters to customers and eventually filed more than 24,000 federal lawsuits against them. Because DirecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF and the Cyberlaw Clinic received hundreds of calls and emails from panicked device purchasers. We worked with DirecTV to get them to limit their lawsuits to only those people they could prove were illegally receiving their signal. The two groups co-sponsor a website at http://www.directvdefense.org to help people defend themselves.

For the full brief filed in the case:
http://directvdefense.org/files/hunyh_amicus_brief_final.pdf

Contacts:

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

Jennifer Granick
Executive Director
Stanford Law School Center for Internet and Society Cyber Law Clinic
jennifer@law.stanford.edu

Related Issues:
November 28, 2005

E-Voting Company Forced to Comply with Election Transparency Laws

Raleigh, North Carolina - Responding to arguments made by the Electronic Frontier Foundation (EFF), a North Carolina judge today told Diebold Election Systems that the e-voting company must comply with tough North Carolina election law and dismissed the company's case seeking broad exemptions from the law.

EFF intervened in the case earlier this month, after Diebold obtained a broad temporary restraining order that allowed it to evade key transparency requirements without criminal or civil liability. The law requires escrow of the source code for all voting systems to be certified in the state and identification of programmers. In today's hearing, the judge told Diebold if it wanted to continue in the bidding process for certified election systems in the state, it must follow the law and if it failed to do so, it would face liability.

"The North Carolina legislature showed great leadership and courage in passing one of the most robust voting machine transparency laws in the country," said EFF Staff Attorney Matt Zimmerman. "The court decision reiterates what EFF had been arguing on behalf of our client all along: Diebold is not entitled to special rules."

EFF intervened in the case on behalf of North Carolina voter and election integrity advocate Joyce McCloy, with assistance from Don Beskind and the North Carolina law firm of Twiggs, Beskind, Strickland & Rabenau, P.A. EFF argued that Diebold had failed to show why it was unable to meet election law provisions requiring source code escrow and identification of programmers, and asked the court to force Diebold and every other North Carolina equipment vendor to comply.

Diebold could appeal the ruling, go forward with its bid, or withdraw from the process. However, Diebold told the court that it would likely withdraw the bid if the company did not have liability protection.

North Carolina experienced one of the most serious malfunctions of e-voting systems in the 2004 presidential election when over 4,500 ballots were lost in a voting system provided by Diebold competitor UniLect Corp. The new transparency and integrity provisions of the North Carolina election law were passed in response to this and other documented malfunctions that have occurred across the country.

The North Carolina Board of Elections is scheduled to announce winning voting equipment vendors on December 1, 2005.

For the brief filed in the case:
http://www.eff.org/Activism/E-voting/20051117_Diebold_v_NC_Motion.pdf

Contacts:

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

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

Related Issues:
November 23, 2005

EFF and Others Petition to Stop 18 Month Countdown to Internet Backdoors

The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology, and representatives of industry, academia, librarians and others today filed a joint request for a stay with the Federal Communications Commission (FCC), arguing that the Commission has been "unreasonable, arbitrary and capricious" in demanding that broadband Internet access providers and interconnected Voice over Internet Protocol (VoIP) providers include backdoors for wiretaps in their services. The stay requested that the Commission should either postpone its Spring 2007 "full compliance" deadline for implementing these taps, or halt the requirement entirely.

EFF, CDT, and other groups have already petitioned the D.C. Circuit Court of Appeals to overrule the FCC's September 23rd ruling extending the 1994 Communications Assistance for Law Enforcement Act (CALEA) to cover broadband Internet access and Voice-over-IP (VoIP) service providers. Under the ruling, companies like Vonage and private institutions that provide Net access, such as universities, have 18 months to redesign their networks to be wiretap-friendly, but neither the ruling nor the FCC have been willing to specify what is required.

"The FCC has distorted an already dubious law designed for telephone services in order to reach Internet providers and private networks," said EFF Senior Staff Attorney Lee Tien. "They have plainly overreached their authority in requiring internet providers to design systems that make surveillance of the public easier and we are confident that the courts will agree. But in the meantime the FCC deadline has not been moved and no one knows what CALEA compliance means on the Internet. The Commission refused to say, the FBI has been playing coy, and the rest of us just don't know. The result is a nonsensical deadline that forces companies to begin compliance without knowing what is required of them, or whether CALEA even applies to them, all happening in the shadow of a strong claim that the FCC does not even have authority to do this at all. The FCC needs to call a timeout until it knows what it wants, and seriously reconsider whether it has the authority to demand it."

CALEA, the controversial law passed in the early 1990s that provides the FCC with powers to mandate backdoors into traditional, centralized telephony systems, expressly exempted information services such as the Internet. At the time of its drafting, Congress was convinced by EFF and other privacy groups that such backdoors would endanger privacy and security, strangle innovation, and be technologically burdensome to implement within the Internet's decentralized architecture. The September FCC ruling claims, contrary to this plain intent, that CALEA now applies to broadband ISPs and Internet telephony.

Parties supporting the petition include the American Library Association, Association for Community Networking, the Association of College and Research Libraries, Champaign Urbana Community Wireless Network, Electronic Privacy Information Center, Pulver.com, Sun Microsystems and the Texas ISP Association.

Copy of the Stay Request:
http://www.eff.org/Privacy/Surveillance/CALEA/calea_order_stay_request.pdf

November 21, 2005

Company Should Repair Damage to Customers Caused by CD Software

The Electronic Frontier Foundation (EFF), along with two leading national class action law firms, today filed a lawsuit against Sony BMG, demanding that the company repair the damage done by the First4Internet XCP and SunnComm MediaMax software it included on over 24 million music CDs.

EFF is pleased that Sony BMG has taken steps in acknowledging the security risks caused by the XCP CDs, including a recall of the infected discs. However, these measures still fall short of what the company needs to do to fix the problems caused to customers by XCP, and Sony BMG has failed entirely to respond to concerns about MediaMax, which affects over 20 million CDs -- ten times the number of CDs as the XCP software.

"Sony BMG is to be commended for its acknowledgment of the serious security problems caused by its XCP software, but it needs to go further to regain the public's trust," said Corynne McSherry, EFF Staff Attorney. "It is unconscionable for Sony BMG to refuse to respond to the privacy and other problems created by the over 20 million CDs containing the SunnComm software."

The suit, to be filed in Los Angeles County Superior court, alleges that the XCP and SunnComm technologies have been installed on the computers of millions of unsuspecting music customers when they used their CDs on machines running the Windows operating system. Researchers have shown that the XCP technology was designed to have many of the qualities of a "rootkit." It was written with the intent of concealing its presence and operation from the owner of the computer, and once installed, it degrades the performance of the machine, opens new security vulnerabilities, and installs updates through an Internet connection to Sony BMG's servers. The nature of a rootkit makes it extremely difficult to remove, often leaving reformatting the computer's hard drive as the only solution. When Sony BMG offered a program to uninstall the dangerous XCP software, researchers found that the installer itself opened even more security vulnerabilities in users' machines. Sony BMG has still refused to use its marketing prowess to widely publicize its recall program to reach the over 2 million XCP-infected customers, has failed to compensate users whose computers were affected and has not eliminated the outrageous terms found in its End User Licensing Agreement (EULA).

The MediaMax software installed on over 20 million CDs has different, but similarly troubling problems. It installs files on the users' computers even if they click "no" on the EULA, and it does not include a way to fully uninstall the program. The software transmits data about users to SunnComm through an Internet connection whenever purchasers listen to CDs, allowing the company to track listening habits -- even though the EULA states that the software will not be used to collect personal information and SunnComm's website says "no information is ever collected about you or your computer." If users repeatedly requested an uninstaller for the MediaMax software, they were eventually provided one, but they first had to provide more personally identifying information. Worse, security researchers recently determined that SunnComm's uninstaller creates significant security risks for users, as the XCP uninstaller did.

"Music fans shouldn't have to install potentially dangerous, privacy intrusive software on their computers just to listen to the music they've legitimately purchased," said EFF Legal Director Cindy Cohn. "Regular CDs have a proven track record -- no one has been exposed to viruses or spyware by playing a regular audio CD on a computer. Why should legitimate customers be guinea pigs for Sony BMG's experiments?"

"Consumers have a right to listen to the music they have purchased in private, without record companies spying on their listening habits with surreptitiously-installed programs," added EFF Staff Attorney Kurt Opsahl, "Between the privacy invasions and computer security issues inherent in these technologies, companies should consider whether the damage done to consumer trust and their own public image is worth its scant protection."

Both the XCP and MediaMax CDs include outrageous, anti-consumer terms in their "clickwrap" EULAs. For example, if purchasers declare personal bankruptcy, the EULA requires them to delete any digital copies on their computers or portable music players. The same is true if a customer's house gets burglarized and his CDs stolen, since the EULA allows purchasers to keep copies only so long as they retain physical possession of the original CD. EFF is demanding that Sony BMG remove these unconscionable terms from its EULAs.

The law firms of Green Welling, LLP, and Lerach, Coughlin, Stoia, Geller, Rudman and Robbins, LLP, joined EFF in the case. Sony BMG is also facing at least six other class action lawsuits nationwide and an action by the Texas Attorney General. EFF looks forward to representing the voice of digital music fans in the resolution of these disputes between Sony BMG and consumers.

For more on the Sony BMG litigation, see:
http://www.eff.org/IP/DRM/Sony-BMG/

EFF's open letter to Sony:
http://www.eff.org/IP/DRM/Sony-BMG/?f=open-letter-2005-11-14.html

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