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Press Room

November 9, 2005

AcompliaReport.com Settles Fair Use Dispute with Drug Company

San Francisco - A medical news website, with the assistance of the Electronic Frontier Foundation (EFF), has settled a dispute with a French pharmaceutical giant over using the name of a trademarked medication, Acomplia.

The settlement came after EFF filed suit on behalf of the AcompliaReport.com, an independent online newsletter devoted to reporting about a drug called Acomplia. Acomplia may help consumers lose weight and quit smoking, but is not yet approved by the US Food and Drug Administration (FDA). Since March 2004, AcompliaReport.com has published original news and commentary about Acomplia's clinical trials, the drug approval process, and anti-obesity drugs in general—all aimed at helping consumers make more informed decisions about their health.

To emphasize the newsletter's impartiality, every page has always included the subhead "your independent source of news and reviews about the new diet drug Acomplia." Nevertheless, drug maker Sanofi-Aventis claimed that the use of the term "Acomplia" in the AcompliaReport domain name created a "risk of confusion." Sanofi asked an international arbitrator to order the domain name transferred, alleging that the publisher of the AcompliaReport, Milton R. Benjamin, was a cybersquatter. Benjamin promptly sought a declaration from a U.S. district court protecting his right to the domain name, claiming both fair use and First Amendment rights to the name as an online publisher.

"Sanofi's tactics threatened to quash free and accurate speech," said EFF staff attorney Corynne McSherry. "The website uses the Acomplia mark solely to refer to Sanofi's product. That use is a textbook fair use. And basic First Amendment principles barred Sanofi from using trademark law to shut down an independent news site."

Under terms of Tuesday's settlement, AcompliaReport.com keeps its domain name, as long as there is a disclaimer stating that the website is not associated with Sanofi-Aventis.

"We are happy to have this absurd dispute behind us, enabling us to focus on independent coverage of the regulatory process and further development of a novel drug that appears to have the potential to be of considerable benefit to many people," said Benjamin. "A news site needs to be able to use a trademarked name in order to report on a trademarked product."

Contact:

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

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November 9, 2005

EFF Confirms Secret Software on 19 CDs

San Francisco - News that some Sony-BMG music CDs install secret rootkit software on their owners' computers has shocked and angered thousands of music fans in recent days. Among the cause for concern is Sony's refusal to publicly list which CDs contain the infectious software and to provide a way for music fans to remove it. Now, the Electronic Frontier Foundation (EFF) has confirmed that the stealth program is deployed on at least 19 CDs in a variety of genres.

The software, created by First 4 Internet and known as XCP2, ostensibly "protects" the music from illegal copying. But in fact, it blocks a number of legal uses--like listening to songs on your iPod. The software also reportedly slows down your computer and makes it more susceptible to crashes and third-party attacks. And since the program is designed to hide itself, users may have trouble diagnosing the problem.

"Entertainment companies often complain that fans refuse to respect their intellectual property rights. Yet tools like this refuse to respect our own personal property rights," said EFF staff attorney Jason Schultz. "Sony's tactics here are hypocritical, in addition to being a security threat."

If you have listened to a CD with the XCP software on your Windows PC, your computer is likely already infected. An EFF investigation confirmed XCP software on the following titles:

Trey Anastasio, Shine (Columbia)

Celine Dion, On ne Change Pas (Epic)

Neil Diamond, 12 Songs (Columbia)

Our Lady Peace, Healthy in Paranoid Times (Columbia)

Chris Botti, To Love Again (Columbia)

Van Zant, Get Right with the Man (Columbia)

Switchfoot, Nothing is Sound (Columbia)

The Coral, The Invisible Invasion (Columbia)

Acceptance, Phantoms (Columbia)

Susie Suh, Susie Suh (Epic)

Amerie, Touch (Columbia)

Life of Agony, Broken Valley (Epic)

Horace Silver Quintet, Silver's Blue (Epic Legacy)

Gerry Mulligan, Jeru (Columbia Legacy)

Dexter Gordon, Manhattan Symphonie (Columbia Legacy)

The Bad Plus, Suspicious Activity (Columbia)

The Dead 60s, The Dead 60s (Epic)

Dion, The Essential Dion (Columbia Legacy)

Natasha Bedingfield, Unwritten (Epic)

This is not a complete list and Sony-BMG continues to refuse to make such a list available to consumers. Consumers can spot CDs with XCP by inspecting a CD closely, checking the left transparent spine on the front of the case for a label that says "CONTENT PROTECTED." The back of these CDs also mention XCP in fine print. You can find pictures of these and other telltale labeling at http://www.eff.org/IP/DRM/Sony-BMG/.

"Music fans should protect themselves from this stealth attack on their computer system," said EFF Senior Staff Attorney Fred von Lohmann.

For more tips on keeping your computer uninfected:
http://www.eff.org/deeplinks/archives/004144.php

Contacts:

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

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

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November 4, 2005

DOJ's Decision Denies Courts Guidance on When to Authorize Tracking

San Francisco - The US Department of Justice (DOJ) has told the Electronic Frontier Foundation (EFF) that it will not appeal a New York decision that forcefully rejected its request to track a cell phone user without first showing probable cause of a crime. It also appears that DOJ will not appeal a similar opinion recently issued in Texas.

Last week in the Eastern District of New York, Federal Magistrate Judge James Orenstein, in a scathing opinion, rejected DOJ's request to track a cell phone without a warrant, agreeing with a brief EFF filed in the case. Describing the government's justifications for the tracking request as "unsupported," "misleading," and "contrived," Orenstein ruled that tracking cell phone users in real time required a showing of probable cause that a crime is being committed. Earlier this month, another federal magistrate judge in the Southern District of Texas published his own opinion denying another government application for a cell phone tracking order. DOJ has failed to file timely objections with the District Court in that case, too. Although DOJ may still decide to appeal that case to the Fifth Circuit, its choice not to appeal the nearly identical opinion in the New York case makes that seem unlikely.

"The government's decision not to appeal either of these cases is disappointing," explained EFF staff attorney Kevin Bankston. "The magistrate judge in New York explicitly encouraged the government to appeal the decision so that he and his fellow judges around the country could get some guidance from the higher courts. The very important question of when the government can track your cell phone remains an open question that should be argued openly in the appeals court, not litigated piece-meal in lower-court proceedings where the government is secretly presenting cell phone tracking requests."

An October 28 story in the Washington Post reported that, when questioned about the court decisions, "Justice Department officials countered that courts around the country have granted many such orders in the past without requiring probable cause."

"The Justice Department has been arguing for warrantless cell phone tracking in secret proceedings with magistrate judges across the country, probably for years," said Bankston. "My biggest fear is that DOJ intends to continue seeking these illegal surveillance orders in secret, while avoiding scrutiny from higher courts."

You can read the full text of Judge Orenstein's opinion, and the similar Texas opinion, at http://www.eff.org/legal/cases/USA_v_PenRegister.

Contact:

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

November 3, 2005

RIAA v. The People: Two Years Later

Chicago - It's been two years since the Recording Industry Association of America (RIAA) started suing music fans who share songs online. Thousands of Americans have been hit by lawsuits, but both peer-to-peer (P2P) file sharing and the litigation continue unabated.

In a report released Thursday, "RIAA v. The People: Two Years Later," the Electronic Frontier Foundation (EFF) argues that the lawsuits are singling out only a select few fans for retribution, and many of them can't afford either to settle the case or defend themselves. EFF's report cites the case of a single mother in Minnesota who faces $500,000 in penalties for her daughter's alleged downloading, as well as the case of a disabled veteran who was targeted for downloading songs she already owned.

"Out of the millions of people who download music from P2P systems every day, the RIAA arbitrarily picks a few hundred to sue every month," said EFF Senior Staff Attorney Fred von Lohmann. "Many of those families suffer severe financial hardship. But despite all the publicity, studies show that P2P usage is increasing instead of decreasing."

"RIAA v. The People" was released in conjunction with the first annual P2P Litigation Summit in Chicago on Thursday, which brings together defense attorneys, clients, advocates, and academics to discuss the latest developments in the lawsuits.

Three other reports released Thursday were aimed at helping lawyers representing music fans sued by the RIAA. "Typical Claims and Counter Claims in Peer to Peer Litigation" is a general discussion of the lawsuits, while "Parental Liability for Copyright Infringement by Minor Children" and "Copyright Judgments in Personal Bankruptcy" both tackle important issues arising in defending families from devastating judgments.

"After two years of lawsuits, there's only one conclusion to draw," said von Lohmann. "Suing music fans is no answer to the P2P dilemma."

For "RIAA v. The People: Two Years Later":
http://www.eff.org/IP/P2P/RIAAatTWO_FINAL.pdf

For "Typical Claims and Counter Claims in Peer to Peer Litigation:
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_witkin.pdf

For "Parental Liability for Copyright Infringement":
http://www.eff.org/IP/P2P/Parent_Liability_Nov_2005.pdf

For "Copyright Judgments in Personal Bankruptcy":
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf

For more on the P2P Litigation Summit:
http://www.eff.org/IP/P2P/p2p_litigation_summit.php

Contacts:

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

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

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October 26, 2005

No Cell Phone Location Tracking Without Probable Cause

New York - Agreeing with a brief submitted by EFF, a federal judge forcefully rejected the government's request to track the location of a mobile phone user without a warrant.

Strongly reaffirming an earlier decision, Federal Magistrate James Orenstein in New York comprehensively smacked down every argument made by the government in an extensive, fifty-seven page opinion issued this week. Judge Orenstein decided, as EFF has urged, that tracking cell phone users in real time required a showing of probable cause that a crime was being committed. Judge Orenstein's opinion was decisive, and referred to government arguments variously as "unsupported," "misleading," "contrived," and a "Hail Mary."

"This is a true victory for privacy in the digital age, where nearly any mobile communications device you use might be converted into a tracking device," said EFF Staff Attorney Kevin Bankston. "Combined with a similar decision this month from a federal court in Texas, I think we're seeing a trend—judges are starting to realize that when it comes to surveillance issues, the DOJ has been pulling the wool over their eyes for far too long."

Earlier this month, a magistrate judge in Texas, following the lead of Orenstein's original decision, published his own decision denying a government application for a cell phone tracking order. That ruling, along with Judge Orenstein's two decisions, revealed that the DOJ has routinely been securing court orders for real-time cell phone tracking without probable cause and without any law authorizing the surveillance.

"The Justice Department's abuse of the law here is probably just the tip of the iceberg," said EFF Staff Attorney Kurt Opsahl. "The routine transformation of your mobile phone into a tracking device, without any legal authority, raises an obvious and very troubling question: what other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?"

The government is expected to appeal both decisions and EFF intends to participate as a friend of the court in each case.

You can read the full text of Judge Orenstein's new opinion, and the similar Texas opinion, at http://www.eff.org/legal/cases/USA_v_PenRegister.

Contacts:

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

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

October 17, 2005

EFF Urges Fresh Inquiry Into Ramifications of DRM

London - The Electronic Frontier Foundation (EFF) has criticized a European Commission group for assuming that digital rights management (DRM) is the only way to foster development of the home audiovisual market.

In comments filed last week, EFF European Affairs Coordinator Cory Doctorow took the Networked Audiovisual Systems and Home Platforms (NAVSHP) group to task for its report on developing a harmonized system of DRM requirements. Doctorow urged NAVSHP to explore approaches grounded in empirical research, not industry mythology.

"DRM is already widely deployed without a hint of success and the NAVSHP group has the opportunity to learn from its well-known failures," said Doctorow. "NAVSHP should take a new look into how DRM affects the public, artists, and industry."

So far, DRM has failed to reduce unauthorized copying or enrich content authors and performers, and instead has curtailed competition and sacrificed user-rights for the benefit of entertainment giants. A fresh inquiry could examine why otherwise law-abiding citizens have resorted to finding unrestricted material on peer-to-peer networks and look at technological systems that might encourage new artistic works and new business models.

"The EU and the world are experiencing a revolution in creativity thanks to the Internet," said Doctorow. "An entire generation of remixers, talented amateurs, and Creative Commons enthusiasts have created works that do not require DRM to thrive. NAVSHP should produce recommendations for systems that embrace unrestricted distribution methods in support of these new Internet-native business models. These European creators deserve every bit as much attention from the EU as do American film studios and other incumbents."

For the full critique submitted to NAVSHP: http://www.eff.org/IP/DRM/NAVSHP/

For more on digital video standards in Europe: http://www.eff.org/IP/DVB/

Contact:

Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

Related Issues:
October 17, 2005

Tiny Dots Show Where and When You Made Your Print

Tiny Dots Show Where and When You Made Your Print

San Francisco - A research team led by the Electronic Frontier Foundation (EFF) recently broke the code behind tiny tracking dots that some color laser printers secretly hide in every document.

The U.S. Secret Service admitted that the tracking information is part of a deal struck with selected color laser printer manufacturers, ostensibly to identify counterfeiters. However, the nature of the private information encoded in each document was not previously known.

"We've found that the dots from at least one line of printers encode the date and time your document was printed, as well as the serial number of the printer," said EFF Staff Technologist Seth David Schoen.

You can see the dots on color prints from machines made by Xerox, Canon, and other manufacturers (for a list of the printers we investigated so far, see: http://www.eff.org/Privacy/printers/list.php). The dots are yellow, less than one millimeter in diameter, and are typically repeated over each page of a document. In order to see the pattern, you need a blue light, a magnifying glass, or a microscope (for instructions on how to see the dots, see: http://www.eff.org/Privacy/printers/docucolor/).

EFF and its partners began its project to break the printer code with the Xerox DocuColor line. Researchers Schoen, EFF intern Robert Lee, and volunteers Patrick Murphy and Joel Alwen compared dots from test pages sent in by EFF supporters, noting similarities and differences in their arrangement, and then found a simple way to read the pattern.

"So far, we've only broken the code for Xerox DocuColor printers," said Schoen. "But we believe that other models from other manufacturers include the same personally identifiable information in their tracking dots."

You can decode your own Xerox DocuColor prints using EFF's automated program at http://www.eff.org/Privacy/printers/docucolor/index.php#program.

Xerox previously admitted that it provided these tracking dots to the government, but indicated that only the Secret Service had the ability to read the code. The Secret Service maintains that it only uses the information for criminal counterfeit investigations. However, there are no laws to prevent the government from abusing this information.

"Underground democracy movements that produce political or religious pamphlets and flyers, like the Russian samizdat of the 1980s, will always need the anonymity of simple paper documents, but this technology makes it easier for governments to find dissenters," said EFF Senior Staff Attorney Lee Tien. "Even worse, it shows how the government and private industry make backroom deals to weaken our privacy by compromising everyday equipment like printers. The logical next question is: what other deals have been or are being made to ensure that our technology rats on us?"

EFF is still working on cracking the codes from other printers and we need the public's help. Find out how you can make your own test pages to be included in our research at http://www.eff.org/Privacy/printers/wp.php#testsheets.

Contact:

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

Related Issues:
October 13, 2005

Injunction Could Shut Down Popular Service

Los Angeles - The Electronic Frontier Foundation (EFF) filed a brief Wednesday in support of Google Image Search, arguing that a federal district court should reject a request for a preliminary injunction that could shut the service down.

In its lawsuit, adult entertainment website Perfect 10 claims that Google violates its copyrights by making and delivering thumbnail images of its photos as Internet search results. In its friend-of-the-court brief, EFF shows that these copies are a well-established fair use of digital images and they help people find and use the works for informational and educational endeavors.

"Google Image Search helps millions of people locate and learn about information on the web every day," said Jason Schultz, EFF staff attorney. "We're concerned that the public will lose out if Perfect 10 succeeds in shutting it down."

Perfect 10 argues that a preliminary injunction is justified because Google is violating its right to reproduce, distribute, and display its copyrighted work. But there is a long tradition in fair use that certain kinds of copies are socially useful, even without permission of the author. Courts have held that copies are a legal intermediate step to making non-infringing uses of the copyrighted work—for example in teaching, education, and news reporting.

Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information—much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users.

While the images provided by Perfect 10 may have limited academic application, the ramifications of its lawsuit could have a huge impact on educational research.

"Without the right to make legal copies, Google Image Search wouldn't be able to help you find a picture of Martin Luther King, Jr. at the Lincoln Memorial, for example," said Schultz.

A hearing in this case is set for November 7, 2005.

For the full text of the brief, see:
http://www.eff.org/legal/cases/Perfect10_v_Google/EFF_amicus_brief.pdf

Contact:

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

Related Issues:
October 6, 2005

Requires Plaintiffs to Meet Strict Standard Before Unmasking Critic

Wilmington, Delaware - The Delaware Supreme Court has protected the identity of a blogger in the case of Doe v. Cahill, finding that the plaintiffs failed to meet the strict standards required by the First Amendment to unmask an anonymous critic. It dismissed the case Wednesday.

This is the first state supreme court to rule on a "John Doe" subpoena or to address bloggers' rights.

"Bloggers have a strong First Amendment right to speak anonymously," said Kurt Opsahl, staff attorney at the Electronic Frontier Foundation (EFF). "It is critical that plaintiffs' claims face a stringent test before a court unmasks online critics, lest we reduce the vibrant public debates on the Internet to the cautious views of a select few voices."

The defendant in the case posted under the alias Proud Citizen on the "Smyrna/Clayton Issues Blog" (www.newsblog.info/0405). In two messages from September of 2004, Proud Citizen discussed a member of the Smyrna Town Council, Patrick Cahill, referring to Cahill's "character flaws," "mental deterioration," and "failed leadership," and stated that "Gahill [sic] is...paranoid."

Cahill and his wife filed a complaint for defamation, and sought to discover Proud Citizen's identity, which the trial court allowed under a very relaxed standard -- merely requiring a claim made in good faith. The Delaware Supreme Court disagreed, noting that substantial harm may come from allowing a plaintiff to compel the disclosure of an anonymous defendant's identity with a weak or trivial claim.

Instead, the Court required a stricter standard: the plaintiff must (1) make reasonable efforts to notify the defendant and (2) provide facts sufficient to defeat a summary judgment motion (i.e., submit enough evidence to show the Court that the case was strong enough to proceed to trial). The Court held that the plaintiffs had not shown that statements made by Proud Citizen met this test, in large part because they were likely to be seen by the Internet audience as statements of opinion.

EFF, along with Public Citizen, the American Civil Liberties Union, and the American Civil Liberties Union of Delaware, filed a "friend of the court" brief supporting the blogger's right to speak anonymously. You can learn more about EFF's efforts to defend bloggers' rights at www.eff.org/bloggers/.

Contact:

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

Related Issues:
October 5, 2005

Brief Supports Past Court Opponent DirecTV

San Francisco - The Electronic Frontier Foundation (EFF) filed a brief this week in support of one of its previous court opponents, DirecTV, arguing that a federal appeals court should throw out a lawsuit against the company for accessing a public website.

DirecTV is being sued by Michael Snow, the publisher of an anti-DirecTV website that contained warnings to DirecTV employees that they were not authorized to enter. In its friend-of-the-court brief to the Eleventh Circuit Court of Appeals, EFF argues that the federal Stored Communications Act, on which Snow's suit relies, only protects websites that are configured to be private.

"If you want to keep your website private, then you should protect it with a password," said EFF Staff Attorney Kevin Bankston. "The law doesn't allow web publishers to sue when people they don't like visit their site. Otherwise, any company could publish terms of service forbidding competitors, consumer watchdogs, journalists, or even government officials from scrutinizing a public website." Under Snow's theory, not only could such unauthorized visitors be sued, they could also be prosecuted and sent to prison.

Snow is asking the appeals court to overturn the district court's dismissal of his case. EFF agrees with DirecTV that the case should have been dismissed, but argues that the lower court's reasoning for dismissal was flawed.

"The district court made the right decision but based on the wrong reasons, threatening the legal protections for private web communications," Bankston said. "The appeals court needs to clarify that although public websites aren't protected by federal privacy laws, sites that are actually configured to be private are fully covered."

EFF has opposed DirecTV in the past for its legal campaign against "smart cards," and co-sponsors a website, www.directvdefense.org, designed to help those who have been sued by DirecTV. However, as Bankston said, "When it comes to protecting the rights of Internet users, EFF doesn't hold a grudge. We may oppose DirecTV in other cases, but here, it's plainly on the correct side."

The US Internet Industry Association, whose membership includes many web hosts that offer private web services, joined EFF on the brief.

For the full text of the brief, see: http://www.eff.org/legal/cases/Snow_v_DirecTV/EFF_amicus.pdf

Contact:

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

October 3, 2005

Comments to House of Commons Warn About Regulation

London - The Electronic Frontier Foundation (EFF) has filed comments with the Department of Culture, Media, and Sport (DCMS) in the British House of Commons about plans for digital television broadcasting in Europe. In comments submitted last week, EFF expressed concern that switching off analog broadcasts could result in new digital television standards that unduly restrict the public and manufacturers.

The Digital Video Broadcasting Project (DVB) -- a group that creates standards for digital television in Europe, Australia, and much of Asia -- has proposed a complex system for restricting digital broadcast programming after reception, analogous to the disastrous broadcast flag proposal in the United States. This system, called "Content Protection Copy Management" (CPCM), has been under discussion since 2003.

The CPCM restrictions include an "authorized domain" governing the number of devices that can use content and a myriad of broadcast flags that will restrict usage, recording, and storage. They also specify compliance rules for all manufacturers. As with the US broadcast flag proposal, these compliance rules would result in a ban on the use of free and open source software in connection with digital TV reception and usage.

"The DVB broadcast flag is much more sweeping than the one they tried for in America," said Cory Doctorow, EFF's European Affairs Coordinator, who attends the standards-specifying meetings on behalf of manufacturers who use free and open source software in their products. "The North American Broadcasters' Association has threatened to turn this into a global regulatory mandate. If that comes to pass, you'll never know which TV shows your devices can record or whether a new device will be allowed onto your home network. Additionally, this will give a veto over technology to entertainment companies, who've already ruled out open source because it lets users modify their own equipment."

EFF believes that a European broadcast flag would also be used to gain political leverage to argue again for a broadcast flag in the United States.

For EFF's full comments submitted to the British House of Commons: http://www.eff.org/IP/DVB/dvb_critique.php

One-page summary: http://www.eff.org/IP/DVB/

For EFF's action alert on the US broadcast flag: http://action.eff.org/site/Advocacy?id=129

Contact:

Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

September 29, 2005

EFF Criticizes Plan for Restrictive New Cell Technology

San Francisco - The Trusted Computing Group (TCG), an industry consortium developing controversial computer security specifications, has released a wish list of applications of TCG technology to cell phone security. Unfortunately, much of this "security" aims to help cell phone carriers cement their control over their customers.

The Electronic Frontier Foundation (EFF) attended TCG's announcement in San Francisco on Tuesday and criticized the proposals as steps in the wrong direction for the future of mobile communications.

"TCG is proudly offering to help cell phone carriers lock down your phone," said EFF Staff Technologist Seth Schoen. "The proposals described today aim to help your cell phone company decide who can publish software or media for your phone, whether you can load your own documents, and even whether you can switch carriers or resell your phone. These are not innovations that consumers will applaud."

TCG announced a set of eleven "use cases" that its members will discuss how to support with TCG technologies in cell phones. Among other applications, TCG suggested:

* "Device integrity" and "SIMlock/device personalization," which would prevent you from switching mobile carriers or reselling or donating your phone to someone else.

* "Platform integrity" and "software use" controls, which would let your cell phone company, not you, decide what software is allowed to run on your phone.

* "Digital rights management support" helps publishers, not you, control how you can use media on your cell phone.

TCG says these new "features" are all in the name of "security" - whether they are protecting against viruses or ensuring that users can't take their phones with them when they change carriers and can't use third-party applications that aren't provided by their carriers. But this security is not necessarily for consumers' benefit. In many cases, TCG's proposals offer "security" only against you, not for you, and the legitimate security benefits could be achieved without also locking down consumer choice. You won't see such consumer benefits as being able to change cell phone carriers easily or freely use the digital media you have purchased.

TCG's proposals for cell phones contrast with its work on security chips for personal computers. In the PC environment, TCG has taken pains to say that its technology is not specifically aimed at restricting users. But TCG is now explicitly offering to help restrict users.

"The cell phone industry hasn't yet realized that cell phones are little computers, and that users expect the same amount of choice about how to use their phones as they enjoy with their PCs and PDAs," Schoen added. "We should be working to make cell phones more like PCs rather than making PCs more like restricted cell phones. But today TCG has demonstrated its eagerness to assist carriers who wish to force more restrictions on consumers, rather than offer them more control and flexibility."

For TCG's announcements at the CTIA Wireless IT & Entertainment conference: https://www.trustedcomputinggroup.org/groups/mobile

For more on trusted computing on the PC: http://www.eff.org/Infrastructure/trusted_computing

Contacts:

Chris Palmer
Technology Manager
Electronic Frontier Foundation
chris@eff.org

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

September 29, 2005

TSA Stops Deleting "Secure Flight" Records, But Drags Feet On Project Transparency

Washington, DC - After receiving hundreds of requests from Americans asking to know what personal information the government has obtained about them, the Transportation Security Administration (TSA) told passengers that it "does not have the capability to perform a simple computer-based search" to locate individual records.

TSA revealed last fall that it would use private passenger data from all domestic airline flights taken in June of 2004 to test its troubled "Secure Flight" passenger-screening system. In response to a fruitless Privacy Act request by four Alaska residents, the Electronic Frontier Foundation (EFF) encouraged other airline passengers to request their own files. TSA recently began notifying the passengers who filed Freedom of Information Act (FOIA) and Privacy Act requests that it lacks the ability to easily search its records. TSA also said that it would close such requests unless individuals provided additional detailed information, such as the air carrier they used, the dates of travel, and their phone numbers -- part of the data that requestors were seeking in the first place.

"TSA is failing to follow the law," said EFF Staff Attorney Matt Zimmerman. "The Freedom of Information Act and the Privacy Act place very clear obligations on government agencies for searching their records, and TSA has simply said that it doesn't want to go through the effort. It's bad enough that Secure Flight has repeatedly failed to show that it can be a useful tool to strengthen airline security. However, that doesn't excuse the federal government from telling Americans about the private information it has gathered and used to test the project."

In light of the high volume of record requests that it has received, TSA recently agreed to stop deleting the passenger data it obtained for testing Secure Flight until it processed its backlog of requests. However, TSA told initial requestors that some of their data had already been deleted.

Secure Flight, a passenger-profiling system aimed at identifying security risks, is the successor of the controversial "CAPPS II" program that was cancelled in the wake of questions about its cost, effectiveness, and impact on privacy and civil liberties. The Secure Flight screening process would involve comparing airline passenger reservation data with an interagency terrorist watch list to determine who should be subject to more invasive screenings or arrest. After repeatedly misleading Congress and the public about its intention to use data provided by commercial data brokers to supplement the watch list, TSA recently announced that it would not use such data in the program for the time being. Despite the controversy surrounding the project, TSA has stated that it is moving forward this fall with plans for a partial roll-out involving two airlines.

For more on EFF and Secure Flight: http://action.eff.org/secureflight

Contacts:

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

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

September 28, 2005

EFF and Others to Challenge Privacy-Invasive Rule

Washington, DC - The Federal Communications Commission (FCC) has issued a "First Report and Order" confirming its expansion of the Communications Assistance to Law Enforcement Act (CALEA) to the Internet. The Electronic Frontier Foundation (EFF) is planning to challenge the rule in court.

The new rule forces Internet broadband providers and "interconnected" Voice-over-IP (VoIP) providers to build backdoors into their networks to make it easier for law enforcement to listen in on private communications. EFF has argued against this expansion of CALEA in several rounds of comments to the FCC.

"A tech mandate requiring backdoors in the Internet endangers the privacy of innocent people, stifles innovation, and risks the Internet as a forum for free and open expression," said Kurt Opsahl, EFF staff attorney.

CALEA, a law passed in the early 1990s, required that all telephone providers build surveillance backdoors into their networks. Due to pressure from EFF and other privacy groups, Congress expressly exempted information services like broadband. But the new details released on September 23rd show that the FCC has decided to ignore Congress's decision to protect the Internet, instead forcing all "facilities-based" providers of any type of broadband Internet access service, as well as interconnected VoIP services, to make their networks wiretap-ready. According to the FCC, all VoIP communications on a given service must be wiretap-ready if the VoIP service offers the capability for users to connect calls with the public switched telephone network (PSTN), even those communications that do not involve the PSTN.

Practically, what this means is that the government will be asking broadband providers -- as well as companies that manufacture devices used for broadband communications -- to create new backdoors for surveillance, imperiling the privacy and security of citizens on the Internet. It also hobbles technical innovation by forcing companies involved in broadband to redesign their products to meet government requirements.

Acknowledging that the FCC is reaching beyond Congress's intention by expanding CALEA to the Internet, FCC Commissioner Michael J. Copps admitted that "[the] statute is undeniably stretched," and FCC Commissioner Kathleen Q. Abernathy issued a plea that Congress revisit its decision to exempt the Internet, stating the "application of CALEA to these new services could be stymied for years" by litigation.

"The FCC's overreach is an attempt to overrule Congress's decision to exclude 'information services,'" said EFF Senior Staff Attorney Lee Tien. "By mandating backdoors in any service that has the capability to replace functions provided by a telephone, the FCC has stretched the statute to the breaking point."

Contact:

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

September 26, 2005

EFF Asks Supreme Court to Consider Controversial Case

San Francisco - On Monday, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the United States Supreme Court, asking the Court to review an important patent case that has broad implications for free speech and consumers' rights.

The Federal Circuit Court of Appeals ruled earlier this year that eBay violated MercExchange's online auction patents and that eBay could be permanently enjoined, or prohibited, from using the patented technology. Then the Court went a dangerous step further. It held that patentees who prove their case have a right to permanent injunctions unless the injunction poses a risk to public health. This "automatic injunction" rule deprives judges of their traditional discretion to consider how an injunction might affect other public interests -- including free speech online.

If this rule is allowed to stand, free expression could suffer.

"We're not saying injunctive relief is never a good idea," said EFF Staff Attorney Corynne McSherry. "But courts must have the ability to look at how an injunction will affect a variety of public interests. That's especially true now, when so many companies are claiming patents on basic technologies that citizens use to communicate online."

In its brief, EFF argues that this ruling threatens free speech because patent owners who claim control over Internet publishing mechanisms are in a position to threaten anyone who uses them to broadcast their ideas, even for noncommercial purposes.

Added McSherry, "Given the explosion of new communications technologies such as blogs, instant messaging, and wikis, this is hardly the time to limit courts' ability to consider the benefits that a given technology brings to freedom of expression, or evaluate the chilling effects of forbidding the use of that technology."

You can read the full brief at:
www.eff.org/legal/cases/ebay_v_mercexchange/EFF_brief.pdf.

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

Contacts:

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

Related Issues:
September 26, 2005

Cell Phones Used to Track Users Without Probable Cause

San Francisco - The Electronic Frontier Foundation (EFF) is arguing that a New York federal court should stand by its decision to require probable cause to believe a crime has been or is about to be committed before letting the government secretly track people using their cell phones.

"This is the first case considering when the government can track the movements of your cell phone, and the answer couldn't be more important," said EFF Staff Attorney Kevin Bankston. "Allowing the government to turn anyone's cell phone into a tracking device without probable cause will enable a surveillance society that would make Big Brother jealous."

Last month, the court denied a Justice Department request to monitor a cell phone's location. The ruling revealed that the DOJ has routinely been securing court orders for real-time cell phone tracking without probable cause and without any law authorizing the surveillance.

Many cell phone users aren't aware that their phones can be used to track their location in real-time, even when they aren't using them. EFF filed a friend-of-the-court brief on Friday to oppose a DOJ motion asking the court to reconsider its pro-privacy decision. EFF argues that the Fourth Amendment requires a search warrant for such invasive surveillance, issued under the same strict standards as warrants that authorize phone and Internet wiretaps.

The government has tried to justify this gross expansion of its authority by combining two surveillance statutes, neither of which authorize cell phone tracking on their own. As EFF explains in its brief, there is no support anywhere for this argument -- not in the statutes' language, nor in legislative history, case law, or academic commentary. Indeed, it contradicts the government's own electronic evidence manual. "It's as if the government wants the court to believe that zero plus zero somehow equals one," said Bankston.

EFF's brief marks the first time the DOJ has had to face lawyers presenting an opposing argument on this issue. "Secrecy breeds abuse," said EFF Staff Attorney Kurt Opsahl. "Before this court had the courage to stand up to the government, the hearings were hidden from the public and the judge only saw the government's point of view this led to secret tracking orders -- without basis in law -- that threaten our fundamental liberties."

The DOJ is expected to appeal to the district court if Magistrate Judge Orenstein denies its motion to reconsider. The court has not said when it intends to rule.

You can read the full text of the EFF brief at www.eff.org/legal/cases/USA_v_PenRegister.

Contacts:

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

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

September 22, 2005

Public Celebration at EFF's San Francisco Headquarters

San Francisco - The Electronic Frontier Foundation (EFF) is 15 years old this year. Come celebrate 15 years of defending freedom in the digital world. Our anniversary party is on Sunday, October 2nd, at 5 p.m. at the EFF headquarters in San Francisco, and the event is free of charge and open to everyone.

Please join us for delicious Mexican food and drinks from Pancho Villa and a 3-D cake. You'll also hear a special address from our founders, John Perry Barlow and John Gilmore. Our musical guests are Gypsy Jazz from the Zegnotronic Rocket Society and DJ Ripley and Kid Kameleon.

EFF's office is located at 454 Shotwell Street in San Francisco.

Please let us know if you plan to attend by emailing rsvp@eff.org or by calling 415-436-9333 x129.

Contact:

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

September 21, 2005

EFF Applauds Commission Recommendations But Opposes National ID Card Endorsement

Washington, DC - The Carter-Baker Commission, formally known as the Commission on Federal Election Reform, released on Monday an extensive report about the country's electoral health, along with a wide range of suggested reforms. Most of the Commission's recommendations should cheer those concerned about the security of electronic voting.

Named after the co-chairs, Jimmy Carter and James A. Baker III, the Carter-Baker Commission reported that there is an urgent need for the nation to increase transparency in voting processes and to institute robust security measures. It found that the lack of transparency and robust security is undermining public confidence that votes are being accurately recorded.

Among other recommendations, the Commission suggested:

* All voting machines should be equipped with a voter-verifiable paper audit trail and be fully accessible to voters with disabilities.

* Election officials should publicly test all voting equipment before, during, and after Election Day.

* Election officials should permit public observation of the machine certification process.

* Voting machine manufacturers that are unwilling to submit their machines' computer code for Election Assistance Commission testing and review by independent experts should be prohibited from selling their voting machines.

* Election officials should verify upon delivery of a voting machine that the system matches the system that was certified.

"The Commission joins a growing chorus of concerned groups and citizens urging that electronic voting technology and related procedures be overhauled," said Electronic Frontier Foundation (EFF) Staff Attorney Matt Zimmerman. "This high-level, bipartisan panel confirmed that e-voting has introduced an unacceptable amount of uncertainty into voting, which should be the most trusted task performed by government. Congress and the states need to move quickly to ensure that another election doesn't go by with the same systemic flaws. Luckily, on the federal level, HR 550 could help us reach some of those goals by mandating a voter-verified paper trail and mandatory audits."

Zimmerman noted that while most of the Commission's recommendations were on-the-mark, others -- such as permitting states to decide for themselves whether paper or electronic ballots would rule in the event of disparities -- didn't go far enough.

EFF strongly opposes the Commission's privacy-invasive recommendations regarding voter identification, however. The report suggests that voters should be required to present the National ID card mandated by the recently passed Real ID Act at the voting booth.

"Tying voter ID requirements to the REAL ID Act is bad for voting and for privacy," said EFF Senior Staff Attorney Lee Tien. "There's scant evidence that inadequate voter ID is a factor in election fraud. And the Commission admits to concerns that voter ID requirements could disenfranchise eligible voters, adversely affect minorities, or be used to monitor voting behaviors are 'serious and legitimate.' Moreover, the REAL ID Act turns drivers' licenses into de facto national IDs by forcing states to link their DMV databases so that drivers' personal data will instantly be available to a wide range of state, local, and federal officials. Once created, history has shown that law enforcement, employers, landlords, credit agencies, mortgage brokers, and direct mailers will find a way to access, and in all likelihood abuse, those databases."

More on e-voting.

Contacts:

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

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

September 21, 2005

San Francisco, CA - Yesterday, the Authors Guild filed a class-action copyright infringement suit against Google over its Google Print library project. Working with major university libraries, Google Print aims to make thousands of books searchable via the Web, allowing people to search for key words or phrases in books. The public may browse the full text of public domain materials in the process of such a search, but only a few sentences of text around the search term in books still covered by copyright.

The Electronic Frontier Foundation (EFF) applauds Google's effort to create the digital equivalent of a library card catalog, and believes the company has a strong case.

"Just as libraries don't need to pay publishers when they create a card catalog, neither should Google or other search engines be required to when they create an improved digital equivalent," said EFF Senior Staff Attorney Fred von Lohmann.

In defending the lawsuit, Google is relying on the copyright principle of fair use, which allows the public to copy works without having to ask permission or pay licensing fees to copyright holders. EFF believes Google is likely to prevail on its defense. One key point in Google's favor is that Google Print is a transformative use of these books -- the company is creating a virtual card catalog to assist people in finding relevant books, rather than creating replacements for the books themselves.

In addition, it is almost certain that Google Print will boost, rather than hurt, the market for the copyrighted books. "It's easy to see how Google Print can stimulate demand for books that otherwise would lay undiscovered in library stacks," said von Lohmann. "It's hard to see how it could hurt publishers or authors."

For additional legal analysis, EFF recommends the white paper, "The Google Print Library Project: A Copyright Analysis," recently published by noted DC copyright attorney Jonathan Band of Policy Bandwidth.

Contacts:

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

September 15, 2005

Case Puts Security and Auditability at Risk in the Next Election

Volusia County, FL - On Wednesday, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the 11th Circuit Court of Appeals supporting Volusia County, Florida, in an ongoing legal battle to permit the County to consider voting systems that are both accessible to the disabled and auditable for everyone. EFF's brief strongly urged the Court to reject an argument by the National Federation of the Blind (NFB) that Volusia County should be forced to purchase paperless touchscreen voting machines for the upcoming October 11th election. This deadline, EFF argued, would require the County to rush to prepare for the election, possibly jeopardizing its efforts to program the machines, train election and pollworkers, and educate the public. Instead, the County should be given the chance to acquire voting technology that creates an auditable paper trail, as well as provides accessibility features for a wider range of disabled voters.

EFF's brief was joined by the Handicapped Adults of Volusia County (HAVOC), Verifiedvoting.org, Computer Professionals for Social Responsibility (CPSR), and VotersUnite!

A federal District Court judge ruled against the NFB in July, noting that neither Florida law nor the Americans With Disabilities Act required the County to purchase touchscreen voting machines that leave no paper trail. The NFB appealed the case and continues to demand that the paperless machines be mandated for the October election, despite earlier warnings by County officials that the County needed months to prepare.

"We're disappointed that national disability rights groups have taken such a counter-productive step despite opposition from local disability rights leaders," said EFF Staff Attorney Matt Zimmerman. "At a time when people devoted to meaningful election reform should be working together, it's unfortunate that the NFB is making the dangerous argument that election integrity should be sacrificed for otherwise laudable accessibility goals."

"As a blind voter, I'm strongly opposed to the paperless e-voting machines that the NFB is trying to force onto us," added HAVOC president David Dixon. "I want a voting system that is accessible to as many voters as possible and that also produces an audit trail. The paperless machines are simply the wrong approach, and I support the County's efforts to try to find a better way."

More information on e-voting here.

Contacts:

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

September 13, 2005

New Information Shows No Exhaustive Investigation Before Company Subpoenaed Journalists

Santa Clara County, CA - Court documents in the Apple v. Does case were unsealed last week, and they reveal that the software giant sought to subpoena two reporters' anonymous sources without first conducting a thorough investigation inside the company. This is a crucial issue in the case, which will be heard by the California Court of Appeal, because the First Amendment and the California Constitution require that Apple exhaust all other alternatives before trying to subpoena journalists. The unsealed documents, filed late last week, allow the public to see that Apple failed to conduct an exhaustive investigation. It never took depositions, never issued subpoenas (other than to the journalists), and never asked for signed declarations or information under oath from its own employees.

The Electronic Frontier Foundation (EFF), along with co-counsel Thomas Moore III and Richard Wiebe, is representing journalists with the online news sites AppleInsider.com and PowerPage.org. After the sites printed articles about "Asteroid," rumored to be a much-anticipated FireWire audio interface for GarageBand, Apple claimed violation of trade secret law. In December, the company sued several unknown parties, known as "Does," who allegedly leaked information about "Asteroid" to the journalists.

Apple also claimed that its internal investigation was itself a trade secret and would therefore need to be sealed from opposing counsel. But EFF and co-counsel successfully argued to the court that it be unsealed. Now the public can examine this new information, which clearly shows that the only computer forensics conducted by Apple were a search of Apple's email servers and a rudimentary examination of a single file server. Apple did not examine employees' individual work computers or other devices capable of storing or transmitting electronic information, examine any telephone records, look at copy machines, or otherwise investigate the possibility that information about "Asteroid" was transmitted by means other than email. Moreover, as public documents already showed, Apple did not even obtain sworn statements from employees who had access to the leaked "Asteroid" specs.

"The First Amendment requires that compelled disclosure from journalists be a last resort," said EFF Staff Attorney Kurt Opsahl. "Apple must first investigate its own house before seeking to disturb the freedom of the press."

A California Superior Court ruled earlier this year that the subpoenas could be issued, both to the journalists' email providers as well as to the publishers of the websites themselves. After the journalists appealed, the California Court of Appeal ordered Apple to show cause as to why the journalist's petition should not be granted. No date is set yet for the hearing in the Court of Appeal.

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

September 1, 2005

EFF's New Guide to Digital Music Services Reveals the Truth About DRM

San Francisco, CA - If you buy music from an online music store, you may be getting much less than you thought. Today the Electronic Frontier Foundation (EFF) released "The Customer Is Always Wrong: A User's Guide to DRM in Online Music," which exposes how today's digital rights management (DRM) systems compromise a consumer's right to lawfully manage her music the way she wants.

The guide takes a close look at popular online music services with built-in DRM created by Apple, Microsoft, RealNetworks, and Napster 2.0. Although these companies claim their services allow consumers "freedom" and the ability to play music "any way you want it," the reality often does not live up to the marketing hype. When you download in these formats from online music services, the services don't trumpet the fact that your music contains hidden restrictions that complicate your life and limit the universe of devices you can use to play your music. CDs purchased 20 years ago not only continue to play in every CD and DVD player, but can also be used with any of today's PCs and digital music players. Thanks to DRM, however, a similar investment in music downloaded today may be much less valuable to you 20 years from now.

And yet bypassing the DRM to make perfectly legal uses puts people at risk of liability under the Digital Millennium Copyright Act (DMCA). "In this brave new world of 'authorized digital music services,' law-abiding music fans often get less for their money than they did in the old world of CDs," said Derek Slater, the Harvard student and EFF intern who authored the guide. "Understanding how DRM and the DMCA pose a danger to your rights will help you to make fully informed purchasing decisions."

The Customer Is Always Wrong: A User's Guide to DRM in Online Music

Contact:

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

Related Issues:
September 1, 2005

Shuts Down Open Source Videogame Server Project

St. Louis, MO - In a decision with dangerous implications for competition, consumer choice, reverse engineering, and innovation, the 8th Circuit Court of Appeals today ruled against three software programmers who created a free, open-source program to allow gamers to play games they purchased with others on the platform of their choice. The court held that the Digital Millennium Copyright Act (DMCA) prohibited the reverse engineering needed to create the program and that "click-wrap" and "browse-wrap" licenses are enforceable to prevent reverse engineering.

The software program, called BnetD, allowed legitimate Blizzard videogame owners to set up their own multiplayer games on the Internet and enjoy dozens of additional features instead of being locked into Blizzard's proprietary Battle.net game service. The Electronic Frontier Foundation (EFF), co-counsel for the programmers, took the case to defend the fair-use right to reverse-engineer software and create new programs that interoperate with older ones.

"This ruling is bad for gamers, but it could also be terrible for the software industry," said EFF Staff Attorney Jason Schultz. "It essentially shuts down any competitor's add-on innovation that customers could enjoy with their legitimately purchased products. Add-on innovation is one of the hottest areas of creativity and economic growth right now in software, and this decision will slow investment and development in that field."

The court ruled that Congress' explicit protections for reverse engineering and add-on innovation in the highly controversial DMCA are too narrow and weak to protect innovators from lawsuits when the software they create is used for illegal copying, even if the copying occurs without the knowledge or participation of the program's creators. The court also ruled that clicking on a EULA's "I Agree" button, common when installing almost any software product purchased today, can be used to force both consumers and competitors out of the marketplace for add-on innovation.

"Those who have been claiming that the DMCA does not threaten reverse engineering are plainly wrong," added Schultz. "The DMCA has become a powerful anticompetitive tool, and that means consumers will see fewer innovative products in the marketplace."

Ruling in the case [PDF]

Case background

Contact:

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

Related Issues:
August 26, 2005

Free Speech Prevails When Over 100 Defendants Are Dropped from Suit in Utah

Utah - Private information about anonymous online critics was protected this week when a Utah man dropped his lawsuit against people who had allegedly made critical comments about him on message boards and blogs, including the Yahoo! SCOX board. The plaintiff in the case had asked the court to let him use the subpoena process to unmask his anonymous "John Doe" critics.

The Electronic Frontier Foundation (EFF) and the ACLU of Utah opposed his efforts, filing a friend-of-the-court brief arguing that the First Amendment prohibits such subpoenas unless the court first confirms the merits of the litigant's claims. The Utah District Court agreed and demanded that the plaintiff submit additional information showing his good faith efforts to contact the defendants, the likelihood of jurisdiction, and the viability of his claims. Instead, the plaintiff declined to submit the requested information and dismissed the anonymous Yahoo! message board defendants from the case.

"In keeping with the nationwide trend, the Utah District Court recognized that an online speaker's identity should not be exposed unless the litigant can show that the claims are viable and that the litigant has no other way of getting the information," said EFF Staff Attorney Corynne McSherry. "The court made the right call."

The plaintiff stated on his website that he had decided "anonymous speech is worth protecting." EFF agrees.

Contacts:

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

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

August 24, 2005

EFF Warns Consumers That Digital Rights Management Is Incompatible with Fair Use

San Francisco, CA - On Monday, Sun Microsystems announced its new "Open Media Commons," a digital rights management (DRM) project that the company claims will foster sharing of media while protecting copyrights. However, Sun has offered no evidence that its DRM system will be any better than the Microsoft DRM that it's supposed to challenge.

"No one woke up this morning and said, 'I wish Sun would figure out a way to let me do less with my music and movies,'" said Cory Doctorow, the Electronic Frontier Foundation's European Affairs Coordinator. "DRM doesn't sell hardware, software, or movies. The only reason to build DRM is to trade your users' freedoms for a bit of favor from the entertainment companies, a promise that they'll generously allow your record player to play their records -- provided it meets with their approval. If Sun wants to ship technology that competes with Microsoft DRM, it should start by asserting that copyright holders never get to design the record players their records play on."

Any software system, open or not, that blocks users from making legal use of digital content is not consumer friendly. And DRM systems are notorious for blocking people from making fair uses of content by preventing the duplication of all works, even if those works are in the public domain, are being copied for educational purposes, or are publicly owned materials such as government-gathered facts. Because the Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent DRM, there is no lawful way for people to override DRM systems -- even if they are doing it to make legal copies.

Sun says one of its goals with Open Media Commons is specifying "open, royalty-free digital rights management and codec standards" to "ensur[e] intellectual property protection." The problem with this approach is that making DRM "open" and "royalty-free" doesn't make it any less capable of restricting the public's rights under copyright.

Using "commons" in the name is unfortunate, because it suggests an online community committed to sharing creative works. DRM systems are about restricting access and use of creative works. A better way to protect the public's ability to make fair use of their media is to support the Digital Media Consumers' Rights Act (DMCRA, HR 1201). That bill would permit people to circumvent DRM on media in order to make a legal use of that media.

Contacts:

Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

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

August 23, 2005

EFF Asks Federal Court to Save Fair Use on "Intermediate Copies"

Colorado - Yesterday the Electronic Frontier Foundation asked the Colorado Federal District Court to rule that copying an entire movie to a computer to make a new, lawful work is fair use. The case, Huntsman v. Soderbergh, involves the companies Family Flicks and Play It Clean Video, which make and distribute copies of movies with sexual and violent content removed. To make these "clean" copies of popular films, the companies must first make an "intermediate copy" of the entire movie on a computer in order to edit it.

Members of the Motion Picture Association of America (MPAA), along with several prominent film directors, claim that copying movies in order to make them "clean" is copyright infringement. In a friend-of-the-court brief, EFF argues that as long as making clean movies is not itself an infringing activity, the practice of making intermediate copies should be considered non-infringing also.

This is a important point, because intermediate copies are crucial to the process of creating new copyrighted works. A documentary filmmaker, for instance, might need to make temporary intermediate copies of movies in order to get footage for a film. In the software industry, the process of duplicating a copyrighted work to make an original work is known as reverse engineering, and it has been ruled a fair use in several courts.

"People who make movies should have the same rights software engineers have had for years," said EFF Staff Attorney Jason Schultz. "Fair use makes new art possible."

Contacts:

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

August 19, 2005

Announcing the Tor Graphical User Interface Competition

San Francisco - Now information designers can make it easier for people to protect themselves online. The developers of Tor, a software tool for communicating anonymously online, today announced the Tor graphical user interface (GUI) competition. Entrants will create a usable and aesthetically pleasing GUI for the Tor program, which will allow people to install and configure Tor easily and monitor the software's performance while it's running.

"Security depends on knowing what's working correctly and what isn't," said Roger Dingledine, Tor project leader. "A good interface tells users what's going on so they can make smart decisions."

Tor, which is currently being developed with support from the Electronic Frontier Foundation, helps anonymize web browsing and publishing, instant messaging, IRC, SSH, and other applications that use the TCP protocol. Tor also provides a platform on which software developers can build new applications with built-in anonymity, safety, and privacy features.

The competition has two phases. First, there will be a design competition where entrants can submit mock-up sketches of good interfaces. Second, there will be a competition to create working implementations of good interfaces. People are encouraged to submit to either phase or both phases. Winning entries will be open source, exhibit strong graphic design, and include an intuitive and simple interface. Students, freelancers, and professionals at all levels are encouraged to enter. Everyone who enters will get a free Tor t-shirt, and the best sketches and working implementations will be published on the Tor website.

The competition winners will be announced at the 2006 SOUPS conference.

Contact:

Chris Palmer
Technology Manager
Electronic Frontier Foundation
chris@eff.org

August 17, 2005

EFF Opposes Subpoenas Seeking to Reveal the Identities of Web Writers, Bloggers

Utah - A case brought in a US district court by a Utah man threatens to undermine the First Amendment right to speak anonymously on issues of public concern. In Merkey v. Yahoo SCOX et al., the plaintiff requested an expedited process for serving subpoenas that would unmask anonymous "John Doe" critics who participated in a discussion of another court case, in which Utah-based technology company The SCO Group, Inc., is suing IBM.

The Electronic Frontier Foundation (EFF), along with the American Civil Liberties Union (ACLU) of Utah, has filed a friend-of-the-court brief in the case, arguing that a court must review the merits of a litigant's claims before legal process can expose the true names of online Does.

"Frivolous litigation shouldn't be used to circumvent the First Amendment," said EFF Staff Attorney Corynne McSherry. "Before an online speaker is exposed, litigants must show that the anonymous poster's identity is central to their claims, that those claims are viable, and that the litigant can acquire the information in no other manner."

The case arose out of several anonymous postings that appeared in a Yahoo group, as well as the weblogs Groklaw and IP-Wars.net.

Contact:

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

August 15, 2005

EFF Weighs in on Computer Privacy Case in Washington

Washington - Imagine if the law permitted the people who service your computer to share all the personal information on your hard drive with the police, without your consent and without a search warrant. A case on appeal to the Washington State Court of Appeals, State v. Westbrook, threatens to allow just that, turning your friendly neighborhood computer repair technician into a government informer.

Last week, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief in support of the respondent, Robert Westbrook, arguing that citizens have a reasonable expectation of privacy in the contents of their computers, and that their Fourth Amendment rights don't disappear when a computer is delivered to a technician for servicing.

When Westbrook dropped off his personal computer at a Gateway Computer store for servicing, a technician saw private files on the computer that he thought might be illegal. Gateway called the police, who searched through personal files on Westbrook's hard drive looking for more evidence -- before ever getting a warrant. The trial court found, and EFF argues in its brief to the appeals court, that this violated Westbrook's Fourth Amendment rights.

"Customers who drop off their computers for servicing reasonably expect that their private data won't be handed over to the police without a warrant," said EFF Staff Attorney Kurt Opsahl. "Allowing computer technicians to snoop on people's private data is like putting surveillance cameras in dressing rooms. The violation of so many people's privacy far outweighs any benefits that might be gained. It would mean you couldn't use a personal computer for personal business."

EFF was assisted on the brief by criminal appeals specialist Suzanne Lee Elliott of Seattle, who served as local counsel.

Contact:

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

August 11, 2005

Appeals Court Preserves Email Privacy

Massachusetts - In a long-awaited decision, the full First Circuit Court of Appeals today overturned a First Circuit panel decision that had allowed an email service provider to secretly monitor the content of users' incoming messages without violating federal wiretap law. The Electronic Frontier Foundation (EFF) and other privacy organizations submitted briefs in the case urging that the earlier decision be reheard by all seven First Circuit judges.

The defendant in the case, Bradford Councilman, is a seller of rare and used books who also offered email service to customers. Councilman had secretly configured this system to copy all customer email coming from Amazon.com, his competitor, and send it to him. The original First Circuit panel had declared this action to be legal because the messages were in "electronic storage" on the defendant's system for a few milliseconds when they were copied. Thus, the panel argued, Councilman was not in violation of the Wiretap Act. Instead, the panel said that only the Stored Communications Act (SCA) applied to his activities. And the SCA does not place any limits on a communications provider's access to customers' stored messages.

The full court's new decision makes clear that even though emails are stored in computer memory during transmission, it is still criminal to intercept those messages without the user's permission or a court-issued wiretap order. The Wiretap Act doesn't apply merely to communications that are tapped from the wire, but also covers communications that are in "transient electronic storage that is intrinsic to the communication process," according to the court.

"Today's decision reaffirms that email providers can't snoop on their customers' incoming messages any time they like, and that the law protects the privacy of your email just as much as it protects the privacy of your phone calls," says Kevin Bankston, EFF attorney and Equal Justice Works Fellow. "The First Circuit correctly recognized that when law professors, privacy activists, the Department of Justice, and the drafters of the law all agree on what the wiretap statute means, as was the case here, they probably know what they're talking about."

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

August 11, 2005

Corynne McSherry Joins Legal Staff Nicole Nguyen Heads Membership

San Francisco, CA - The Electronic Frontier Foundation (EFF) is pleased to announce the addition of two people to our staff. Corynne McSherry, a Staff Attorney, will be filling out the organization's legal team of intellectual property experts. Nicole Nguyen joins EFF's development team as Membership Coordinator, working on outreach campaigns and membership drives.

McSherry specializes in intellectual property and contract issues. Prior to joining EFF, she was a civil litigator at the law firm of Bingham McCutchen, LLP. She has a Ph.D from the University of California at San Diego and a J.D. from Stanford Law School. While in law school, Corynne published "Who Owns Academic Work: Battling for Control of Academic Intellectual Property" (Harvard University Press).

Before joining EFF, Nguyen worked as a Program Representative for the Haas School of Business at the University of California, Berkeley, and as a Senior International Assignment Consultant for Cendant Mobility. She has a Bachelor of Arts in Economics and a minor in Political Science (with emphasis in International Relations) from the University of California, Irvine.

"We're thrilled to have brought Corynne and Nicole on board," said EFF Executive Director Shari Steele. "With their track records and skills, we're sure they'll make great additions to our team."

EFF currently has 26 employees, including two who are based outside the US and working on international issues.

Contact:

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

August 5, 2005

Tech Mandates Force Companies to Build Backdoors into Broadband, VoIP

Washington, DC - Today the Federal Communications Commission (FCC) issued a release announcing its new rule expanding the reach of the Communications Assistance to Law Enforcement Act (CALEA). The ruling is a reinterpretation of the scope of CALEA and will force Internet broadband providers and certain Voice-over-IP (VoIP) providers to build backdoors into their networks that make it easier for law enforcement to wiretap them. The Electronic Frontier Foundation (EFF) has argued against this expansion of CALEA in several rounds of comments to the FCC on its proposed rule.

CALEA, a law passed in the early 1990s, mandated that all telephone providers build tappability into their networks, but expressly ruled out information services like broadband. Under the new ruling from the FCC, this tappability now extends to Internet broadband providers as well.

Practically, what this means is that the government will be asking broadband providers - as well as companies that manufacture devices used for broadband communications – to build insecure backdoors into their networks, imperiling the privacy and security of citizens on the Internet. It also hobbles technical innovation by forcing companies involved in broadband to redesign their products to meet government requirements.

"Expanding CALEA to the Internet is contrary to the statute and is a fundamentally flawed public policy," said Kurt Opsahl, EFF staff attorney. "This misguided tech mandate endangers the privacy of innocent people, stifles innovation, and risks the functionality of the Internet as a forum for free and open expression."

At the same time, the Department of Justice (DOJ) is asking airlines to build similar backdoors into the phone and data networks on airplanes. EFF and the Center for Democracy and Technology (CDT) submitted joint comments to the FCC arguing against the DOJ's unprecedented and sweeping new technology design mandates and anticipatory wiretapping system.

The FCC's new proposal to expand CALEA to airline broadband illustrates the fallacy of law enforcement's rationale for its CALEA request. The DOJ takes the position that broadband has "substantially replaced" the local telephone exchange, but this claim is reduced to the point of absurdity aboard an airplane and opens the door for CALEA to cover just about anything.

Contact:

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

August 4, 2005

EFF Urges Appeals Court to Find Secret Subpoena Power Unconstitutional

New York - The Electronic Frontier Foundation, joined by several civil liberties organizations and online service providers, filed a friend-of-the-court brief yesterday in the case of Doe v. Gonzales arguing that National Security Letters (NSLs) are unconstitutional. NSLs are secret subpoenas for communications logs, issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers produce records of where their customers go on the Web, as well as what they read and with whom they exchange email. The FBI can even issue NSLs for information about people who haven't committed any crimes.

A federal district court has already found NSLs unconstitutional, and the government is now appealing the case. In its brief to the Second Circuit Court of Appeals, EFF argues that these secret subpoenas imperil free speech by allowing the FBI to track people's online activities. In addition, NSLs violate the First and Fourth Amendment rights of the service providers who receive the secret government demands. EFF and its cosigners argue that NSLs for Internet logs should be subject to the same strict judicial scrutiny applied to other subpoenas that may reveal information about the identities of anonymous speakers – or their private reading habits and personal associations.

Yet NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.

"The Constitution does not allow the FBI to secretly demand logs about Internet users' Web browsing and email history based on vague claims of national security," said EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. "The district court's decision that National Security Letters are unconstitutional should have been a wake-up call to the House of Representatives, which just voted to renew the PATRIOT Act without adding new checks against abuse."

Although such protections are lacking in the PATRIOT renewal bill that the House of Representatives recently passed, they are included in the Senate bill. It is not yet clear whether those protections will be included in the final bill when it reaches the President's desk.

EFF was joined on the brief by the Center for Constitutional Rights, the Center for Democracy and Technology, the Online Policy Group, Salon Media Group, Inc., Six Apart, Ltd., the US Internet Industry Association, and ZipLip, Inc.

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

August 3, 2005

Message Board Poster Criticized Smyrna Town Council Member’s Job Performance

NOTE: This is a press release from Public Citizen, which EFF is recirculating for your information.

Washington, DC - A person who posted Internet messages criticizing a Delaware politician's leadership skills has a right to remain anonymous, Public Citizen urged the Supreme Court of Delaware today in a "friend of the court" brief. The American Civil Liberties Union, the Electronic Frontier Foundation and the American Civil Liberties Union of Delaware also joined the friend of the court brief.

The Internet critic, known in court documents as John Doe No. 1, posted two messages on the Smyrna/Clayton Issues Blog (web log) in September 2004. The messages stated that Patrick Cahill, a member of the Smyrna Town Council, had diminished leadership skills, energy and enthusiasm, and referred to Cahill's "character flaws," "mental deterioration," and "failed leadership." John Doe No. 1, known as "Proud Citizen" on the blog, also stated, "Gahill [sic] is…paranoid."

On November 2, Cahill and his wife sued John Doe No. 1 and three other anonymous critics, claiming that John Doe No. 1 had accused Cahill of suffering from "mental defects and diseases," and that the misspelling of his name implied he was "engaging in extramarital, homosexual affairs." Without notice to the critics, the Cahills sought to identify the critics through a subpoena to the Internet access provider, which notified the four critics of the subpoena.

John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure would violate his First Amendment right to criticize a public official anonymously, but the trial court denied the motion. John Doe No. 1 appealed.

Public Citizen, which has been a strong defender of First Amendment rights on the Internet, urged the court to allow John Doe No. 1 to remain anonymous. Blogs provide individuals such as Cahill the opportunity to immediately respond to postings they believe are false or misleading at no cost, argued Paul Alan Levy, a Public Citizen attorney. Further, courts have ruled that subpoenas seeking the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet.

"The blog postings at issue here contained standard criticism of a public official's job performance – not defamatory statements – and it was well within John Doe No. 1's right to make the comments," Levy said. "We urge the court to rule that this Internet critic has a First Amendment right to speak anonymously on the Internet."

Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of Wilmington, Delaware, served as local counsel.

Contact:

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

Related Issues:
August 2, 2005

Government Order Demanded Only Logs Web Host Rackspace Handed Over Server

San Antonio, TX - The Electronic Frontier Foundation (EFF) last week won a motion allowing it to access sealed court documents about the mysterious disappearance of two web servers used to host news websites for Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists. After six months of secret litigation, EFF obtained a copy of the federal court order that resulted in the October 2004 handover of copies of Indymedia servers to the government by Indymedia's web host. That handover resulted in the silencing of more than 20 news websites and radio feeds for nearly a week.

However, the unsealed documents reveal that the government never officially demanded the computer servers -- the subpoena to Rackspace only requested server log files. This contradicts previous statements by the web host that it took the servers offline because the government had demanded the hardware. The documents also contradict Rackspace's claim that it had been ordered by the court not to discuss publicly the government's demand. It cannot be determined from the unsealed documents whether or not the government informally pressured Rackspace to turn over the servers. By giving the government more data than it requested, the company not only violated the privacy of Indymedia journalists whose information was housed on the servers, but also undermined the free flow of information by taking Indymedia's websites offline. Moreover, the logs that the government requested didn't exist, so Rackspace should never have given the government anything at all.

"When Rackspace received a government demand to examine logs that didn't exist, it had a responsibility to the customer and to the principles of freedom of the press to fight the order and resolve this without taking more than 20 news sites off the Internet," said Kurt Opsahl, EFF staff attorney.

"Rackspace may claim to provide its customers with 'fanatical support,' but in this case it looks like it was more interested in serving the government," added Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "Despite these new revelations, a key question remains: Did government agents intentionally mislead the web host into thinking it had to hand over complete copies of the Indymedia servers?"

The court order served on San Antonio-based Rackspace Managed Hosting was issued based on a treaty request from the Italian government as part of an ongoing criminal investigation in that country.

EFF was assisted in this case by James A. Hemphill and W. Reid Whittliff with Graves, Dougherty, Hearon & Moody in Austin, Texas.

Read the Commissioner's subpoena here.

Read the order unsealing the documents here.

There are many more unsealed documents here .

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

Related Issues:
July 21, 2005

Decision Confirms County Council's Ability to Purchase Accessible, Auditable Equipment

Orlando, FL - A federal District Court judge in Florida ruled today that Volusia County is not required to purchase touchscreen voting machines that do not produce a voter-verifiable paper trail. Pending appeal, the county may now move forward with its plans to purchase voting equipment that is both accessible to disabled voters and that creates an auditable paper trail to protect against errors and fraud.

The Electronic Frontier Foundation (EFF) and Florida attorney Jeff Liggio filed an emergency friend-of-the-court brief in the case on behalf of disabled residents of Volusia County who opposed the purchase of the paperless machines. The brief, supporting Volusia County Council members who seek to purchase an alternative voting system, was submitted on behalf of the Handicapped Voters of Volusia County (HAVOC) in opposition to a lawsuit filed July 5th by the National Federation of the Blind (NFB). The NFB suit sought to force the county to spend approximately $700,000 of state funds on Diebold voting equipment that the county has repeatedly rejected as inferior to the accessible, paper-producing AutoMARK system offered by ES&S.

"The District Court correctly found that Volusia County was right all along," said Matt Zimmerman, EFF staff attorney. "County officials have shown a tremendous amount of courage in resisting pressure to make a misguided decision that could harm voters. The county has already identified a solution that provides better accessibility as well as creates a voter-verified paper audit trail. The county now has the opportunity to put that system into place in the near future."

Added David Dixon, president of HAVOC, "We're very, very pleased with this decision. We look forward to working with the county to help implement a system that protects the rights of all voters."

In his opinion, District Court Judge John Antoon rejected the argument that a Florida statute required immediate purchase of machines that can't be properly audited, writing, "The Court must assume that, if the Florida legislature had intended to place a legal obligation on counties to purchase electronic voting systems, it would have clearly expressed as much...It did not do so." The Court also noted the benefits of a verifiable paper trail, stating that it is "a feature which has proved valuable in at least one of Florida's past elections."

The NFB has appealed the ruling and EFF and HAVOC will participate in the appeal proceedings as well.

Contact:

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

Related Issues:
July 14, 2005

July 15 Hearing Set in Florida

Orlando, FL - On Thursday, the Electronic Frontier Foundation (EFF) and Florida attorney Jeff Liggio filed an emergency amicus brief on behalf of Volusia County disabled residents who oppose the purchase of paperless touchscreen voting machines. The brief, supporting Volusia County Council members who are seeking to purchase an alternate voting system that better addresses accessibility issues and also produces a voter-verified paper ballot, was submitted in opposition to a lawsuit filed July 5th by the National Federation of the Blind (NFB).

The NFB suit seeks to force the County to spend approximately $700,000 of state funds on Diebold voting equipment that the County has repeatedly rejected as inferior to the accessible, paper-producing AutoMARK system offered by ES&S.

A hearing in federal District Court that may decide the issue is set for 1:30 pm in Orlando. Handicapped Adults of Volusia County (HAVOC) president David Dixon will be in attendance and will be available afterwards for comment. He can be reached at (386) 871-0852.

"Accessibility and auditability should not be conflicting values when it comes to voting equipment," said Dixon. "National advocates for the blind do the disabled community of Volusia County a disservice when they presume to speak on our behalf for flawed systems that we do not want. With their support, we could have worked together to promote technology that better assists disabled voters at the same time that it ensured that security and auditability concerns were met. For our part, we will continue to support officials in their efforts to find voting equipment that best protects all voters in the County."

County Council members say that the County has adequate time to consider other technology options before the October election. ES&S continues to work towards Florida state certification for its AutoMARK machines and has offered to rent certified paperless touchscreen machines to the County as a temporary solution in the event that AutoMARK certification isn't achieved in time.

"The Volusia County Council should be applauded for seeking a voting solution that benefits every voter," said EFF Staff Attorney Matt Zimmerman. "The County has made it clear that it is diligently exploring every option in order to find the best result available under the law. Hopefully, the Court will permit the County to do its job."

More on e-voting.

Contact:

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

Related Issues:
July 14, 2005

EFF and Coalition Back E-voting Challenge

Trenton, NJ - In the shadow of a lawsuit demanding that New Jersey update state laws to reflect its increasing use of electronic voting machines, New Jersey's acting governor recently signed into law legislation that will require all voting machines to produce a voter-verified paper record by 2008.

While applauding the law's requirement of voter-verified paper records, litigants in the case vowed to continue their suit to ensure that New Jersey voters do not have to wait until 2008 for a secure vote. The case, called Gusciora v. Codey, was filed by the Rutgers Law School Constitutional Litigation Clinic on behalf of New Jersey Assemblyman Reed Gusciora.

Just prior to the signing of the law, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief in the case. Joining EFF was a broad coalition of organizations with proven dedication to voting rights issues, including the American Civil Liberties Union of New Jersey, VerifiedVoting.org, People For the American Way Foundation, Computer Professionals for Social Responsibility, and VotersUnite!

EFF and fellow amici argued that New Jersey had failed in its obligations to provide laws and regulations appropriate for its use of electronic voting machines. This failure leaves New Jersey voters and election officials at the mercy of an election code aimed at prior generations of voting technology, mandating the use of ill-trained certification technicians and imposing nonsensical mechanical requirements.

With the state implicitly acknowledging the weakness of its voting laws, the importance of the Gusciora lawsuit is clear. "We applaud the legislature and governor for protecting future New Jersey voters, but today's voters remain at risk," said EFF Staff Attorney Matt Zimmerman. "Under the current law, voters will for the next two-and-a-half years be forced to cast ballots on a voting technology that was programmed in secret, that does not preserve a tangible record of the voter's intent, and has a troubling performance history. Today's voters and the democratic process deserve better."

Rutgers professor Penny Venetis, who filed the lawsuit, agrees that it is critical to protect voters between now and 2008. While applauding the passage of the legislation, she noted, "Unconstitutional electronic voting machines that can be easily manipulated to alter votes are still being used in New Jersey. It is critical that the New Jersey courts ensure that every vote cast between now and 2008 be counted accurately."

Here is EFF's amicus brief in the case.

Here is the appellate brief.

Learn more about
e-voting.

Contact:

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

Related Issues:
July 12, 2005

BayFF Public Forum in San Francisco July 19

San Francisco, CA - To kick off the Electronic Frontier Foundation's (EFF) 15th anniversary celebrations this summer, EFF will hold a special BayFF exploring the legal issues surrounding blogging. This will be a roundtable discussion, open to the public, and will include EFF staff, local celebrity bloggers, and blog tool gurus.

BayFF is a series of regular public events EFF holds in the San Francisco Bay Area. Next week's event will be Tuesday, July 19, from 7:00 p.m. to 9:30 p.m. at the 111 Minna Gallery in downtown San Francisco.

This BayFF will feature a discussion with EFF staff attorney Kurt Opsahl, Fleshbot.com assistant editor Violet Blue, UC Berkeley social networks researcher danah boyd, grassroots media activist Dan Gillmor, Napsterization.org editor Mary Hodder, and SFist.com editor Jackson West. Refreshments and birthday cake will be served.

Contact:

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

Related Issues:
July 6, 2005

EFF Adds New Section on Labor Law to Legal Guide for Bloggers

San Francisco, CA - Blogging can affect a blogger's work life in countless ways. Some people have been fired for things they've said in their blogs, while others worry that their bosses may be monitoring their blogging activities when they're on break. To address these and other questions about blogging and the workplace, the Electronic Frontier Foundation (EFF) has added a labor law section to its Legal Guide for Bloggers.

"We want to help bloggers understand how labor law protects them, so they can protect and defend their right to blog about the workplace," said EFF Staff Attorney Kurt Opsahl.

With help from Stacey Leyton, a labor lawyer with Altshuler, Berzon, Nussbaum, Rubin & Demain, EFF has gathered extensive information about everything from "whistle-blogging" to ways that the law protects bloggers who are organizing with their fellow employees for better work conditions. EFF's Legal Guide for Bloggers is a regularly updated guide to the wide range of legal issues confronting bloggers, and it has been linked to more than 100,000 times since being introduced last month.

The next BayFF, EFF's free Bay Area event series, will focus on blogging and the law. It will be held July 19, and will include a roundtable discussion with special guests Violet Blue (Fleshbot.com), Jackson West (SFist.com), and Mary Hodder (Napsterization.org).

Contacts:

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

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

Related Issues:
June 29, 2005

Decision in Internet Ads Case Protects Consumers

New York - The Second Circuit Court of Appeals issued a decision this week that promises to prevent trademark owners from asserting control over the computers of consumers who visit the trademark owners' websites. The case, 1-800 Contacts v. WhenU, questioned whether it was a trademark violation for Internet "adware" company WhenU to provide users with software that gives them advertisements related to keywords found in their online searches. The Second Circuit found that the use of a trademark in software used to generate ads is not a "use in commerce" under trademark law.

The Electronic Frontier Foundation (EFF) filed an amicus brief in the case with the assistance of Professor Eric Goldman of Marquette University Law School. In it, EFF argued that consumers should not be prohibited by trademark law from installing software that allows them, when typing "1-800-Contacts" into a search engine, to see information (including advertisements) from the company's competitors as well as from the company.

"A trademark owner is not entitled to control your desktop just because you happen to be visiting its website," said Fred von Lohmann, EFF senior staff attorney. "This decision is good news for consumers who want the freedom to install tools that help them customize their web-surfing."

Online contact lens distributor 1-800 Contacts, Inc., won an initial preliminary injunction against WhenU.com, Inc., in October 2002, claiming that WhenU.com's SaveNow software confused potential customers by generating ads related to the words and web addresses users entered into online search engines and web browsers. WhenU.com appealed the lower court's ruling in December 2003, and the Second Circuit overturned the lower court's ruling.

Contacts:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

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

Related Issues:
June 28, 2005

EFF Files Suit to Protect Journalist From Legal Intimidation

San Francisco, CA - The Electronic Frontier Foundation (EFF) announced today that it has filed a lawsuit against French pharmaceutical giant Sanofi-Aventis Group on behalf of Medical Week News, publishers of the medical news website AcompliaReport.com.

EFF's lawsuit comes after Sanofi-Aventis, the world's third largest pharmaceutical company, threatened Medical Week News with legal action based on its use of the word "Acomplia" in its AcompliaReport.com website domain name.

Acomplia is the name of a Sanofi-Aventis drug intended to combat obesity and assist with smoking cessation that has shown promise in clinical trials in the United States and in Europe, and has just been submitted to the US FDA and European regulators for approval.

AcompliaReport.com is an independent online newsletter devoted to reporting news about the drug.

In the lawsuit, filed in US District Court in San Francisco, Medical Week News asserts its fair use right to use the word "Acomplia" in publishing independent news about the drug.

"Reporters, critics, and commentators all need to use trademarks in order to discuss and report on trademarked products and services," said EFF Senior Staff Attorney Fred von Lohmann. "Trademark law has always recognized that as a fair use when books and magazines do it. Publishers should enjoy the same fair use rights on the World Wide Web."

"People find information on the Web by entering the subject that is of interest to them in search engines," said Milton R. Benjamin, Publisher and President of Medical Week News. "People hear the word Acomplia on television and go to the Internet for more information. If we were unable to use the name Acomplia in our website, tens of thousands of people never would find the most comprehensive source of objective news and information about development of this drug."

Mr. Benjamin is a veteran journalist who has served in senior editorial positions at Newsweek and the Washington Post.

The lawsuit asks the court to declare that Medical Week News is entitled to continue to use the word "Acomplia" in the AcompliaReport.com domain name and website.

Contacts:

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

Milton Benjamin
Publisher and Editor
Medical Week News
milt@medicalweek.org

Related Issues:
June 27, 2005

Conference at Noon Eastern Time, Call-In Number Available to Press

What: Post-Grokster press conference, with members of the StreamCast (Morpheus) and Grokster legal team along with representatives from the technology industry and public interest groups.

When: 12 Noon EDT today, contacts below for phone-in line for press.

Who: Richard Taranto, who argued the case on behalf of Grokster and StreamCast (Morpheus) StreamCast CEO Michael Weiss and General Counsel Matthew Neco * Charles Baker of Porter & Hedges, representing StreamCast * Fred von Lohmann and Cindy Cohn of the Electronic Frontier Foundation * Michael Page of Keker & Van Nest, attorney for Grokster * Gigi Sohn, President and Co-Founder of Public Knowledge * Edward Black, President and CEO of the Computer and Communications Industry Association * Gary Shapiro, President and CEO of the Consumer Electronics Association

Why: Twenty-eight of the world's largest entertainment companies brought the lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products, aiming to set a precedent to use against other technology companies (P2P and otherwise). As we noted in our arguments before the Ninth Circuit, the case raises a question of critical importance at the border between copyright and innovation: When should the distributor of a multi-purpose tool be held liable for the infringements that may be committed by end-users of the tool?

Background: The entertainment companies lost their case in District Court, and then lost again on appeal to the Ninth Circuit Court of Appeals. The lower court rulings were based, in part, on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

Contacts:

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Brian O'Neal
Senior Director of Communications
StreamCast Networks
boneal@morpheus.com

Related Issues:
June 27, 2005

Copyright Liability Standard in Grokster Decision Endangers P2P and Other New Technologies

Washington, DC - Today the Supreme Court issued a ruling that could impede makers of all kinds of technologies with expensive lawsuits. The long-awaited decision in MGM v. Grokster states that P2P software manufacturers can be held liable for the infringing activities of people who use their software. This decision relies on a new theory of copyright liability that measures whether manufacturers created their wares with the "intent" of inducing consumers to infringe. It means that inventors and entrepreneurs will not only bear the costs of bringing new products to market, but also the costs of lawsuits if consumers start using their products for illegal purposes.

"Today the Supreme Court has unleashed a new era of legal uncertainty on America's innovators," said Fred von Lohmann, EFF's senior intellectual property attorney. "The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers."

The Supreme Court has also ordered the lower court to consider whether peer-to-peer companies Grokster and StreamCast can be held liable under the new standard. StreamCast is confident that it will pass muster under the new, multi-pronged test.

MGM v. Grokster was brought by 28 of the world's largest entertainment companies against the makers of the Morpheus, Grokster, and KaZaA filesharing software products in 2001. The entertainment companies hoped to obtain a legal precedent that would hold all technology makers responsible for the infringements committed by the users of their products. The Electronic Frontier Foundation (EFF), along with StreamCast counsel Matt Neco and Charles Baker of Porter and Hedges, defended StreamCast Networks, the company behind the Morpheus filesharing software.

The entertainment companies lost their case in District Court, then lost again on appeal to the Ninth Circuit Court of Appeals. The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

Contacts:

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

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

Related Issues:
June 21, 2005

Founder of DigitalConsumer.org Is a Perfect Fit for Digital Liberties Organization

San Francisco, CA - This week, the Electronic Frontier Foundation (EFF) welcomes the newest member of its executive board, Internet entrepreneur Joe Kraus. The founder of DigitalConsumer.org, a grassroots organization devoted to helping consumers get fair use access to digital media, Kraus has more than a decade of experience working on Internet-related ventures. He was a founder of Excite.com in the early 1990s, and he is currently the CEO of JotSpot, a maker of wiki-based applications. He is also an angel investor who works with early-stage technology companies.

"I think the work of EFF is critical to a thriving and innovative online world where people are free to create new technologies, content, and communities," said Kraus. "Without the EFF, the Internet would be a smaller, darker place."

EFF Executive Director Shari Steele said, "We're thrilled to have Joe on our board, and we look forward to getting his input into current and future EFF projects."

Other members of EFF's executive board include Brad Templeton, John Gilmore, Pam Samuelson, Lawrence Lessig, John Perry Barlow, Brewster Kahle, and Dave Farber.

Contact:

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

June 20, 2005

Note: The Electronic Frontier Foundation is participating in this press conference with other members of the Morpheus and Grokster legal teams and public interest groups. We are recirculating this press release from StreamCast (Morpheus) for your information.

What: Post-Grokster press conference, with members of the StreamCast (Morpheus) and Grokster legal team along with representatives from the technology industry and public interest groups including P2PUnited, Public Knowledge, the Computer & Communications Industry Association, and the Computer Electronics Association.

When: 12 Noon EDT on the day of the decision. The Court has already scheduled opinion announcements for 10:00a on June 20th, 23rd, 27th, and 30th, and may schedule additional days. If you are a member of the media and wish to phone into the conference, get in touch with one of the contacts listed below.

Who: Richard Taranto argued the case on behalf of Grokster and StreamCast (Morpheus)

StreamCast CEO Michael Weiss and General Counsel Matthew Neco

Fred von Lohmann and Cindy Cohn of the Electronic Frontier Foundation

Charles Baker of Porter & Hedges, attorney for StreamCast Networks

Michael Page of Keker & Van Nest, attorney for Grokster

Adam Eisgrau, Executive Director of P2PUnited

Gigi Sohn, President and Co-Founder of Public Knowledge

Edward Black, President and CEO of CCIA

Gary Shapiro, President and CEO of CEA

Why: In a case now before the United States Supreme Court about when if ever technology makers will be legally liable for the infringements committed by the users of their products, and whether entertainment companies will be able to slow or dictate the course of technology development, the makers of the Morpheus and Grokster Peer-to-Peer file sharing software are being sued by 28 of the world's largest entertainment companies.

Background: The entertainment companies lost their case in District Court, and then lost again on appeal to the Ninth Circuit Court of Appeals. The lower court rulings were based, in part, on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

Contacts:

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Brian O'Neal
Senior Director of Communications
StreamCast Networks
boneal@morpheus.com

Related Issues:
June 20, 2005

Judges Weigh Issues in Eighth Circuit Videogame Case

St. Louis, MO - Judges in the Eighth Circuit Court of Appeals heard oral arguments this morning in Blizzard v. BnetD, a case that pits the large videogame corporation against three game-loving software developers. The developers were sued because they created an open source program called BnetD, which lets gamers play popular Blizzard titles like Warcraft with other gamers online. Blizzard, which maintains its own game server called Battle.net, claims that these programmers violated its end user license agreements (EULAs) and the Digital Millennium Copyright Act (DMCA). The developers reverse-engineered a protocol used in Blizzard's Battle.net service in order to develop their program.

The BnetD engineers are being represented by the Electronic Frontier Foundation (EFF). Arguing on their behalf was EFF co-counsel Paul Grewal of Day Casebeer, assisted by EFF Staff Attorney Jason Schultz.

"The judges were struggling with the right questions," said Schultz. "They're trying to balance copyright interests with the right to reverse engineer. They clearly recognized the public interest in reverse engineering, but they admitted this would be a hard case to decide."

Congress expressly recognized the importance of reverse engineering when it created an exception to the DMCA for this activity. Whether it's allowing gamers to choose a better server for Internet play, or allowing a printer owner to purchase from a range of printer cartridge replacements, reverse engineering is a critical part of innovation in a world where more and more devices need to talk to each other in order to operate correctly.

An audio file of the oral arguments will be available here on June 21, 2005.

Contacts:

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

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

Related Issues:
June 16, 2005

St. Louis, MO - On Monday, June 20, the 8th Circuit Court of Appeals will hear oral arguments in Blizzard v. BnetD, a case that could dramatically impact consumers' ability to customize software and electronic devices and to obtain customized tools created by others.

Along with co-counsel Paul Grewal of Day Casebeer, the Electronic Frontier Foundation (EFF) is representing three open source software engineers who reverse-engineered an aspect of Blizzard's Battlenet game server in order to create a free software game server called BnetD that works with lawfully purchased Blizzard games. The BnetD server lets gamers have a wider range of options when playing online. The lower court held that the reverse-engineering of the games needed to create this new option for consumers was illegal.

The 8th Circuit Court of Appeals will determine whether the three software programmers were in violation of the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA). EFF will argue that the DMCA expressly protects the programming and distributing of programs such as BnetD and this protection cannot be undercut by general state contract law as applied to EULAs.

EFF took the case to stand up for consumer choice in the marketplace. Reverse engineering is often the only way to craft a new product that works with older ones. Congress expressly recognized this when it created an exception to the DMCA for reverse engineering. Whether it's allowing gamers to choose a better server for Internet play, or allowing a printer owner to purchase from a range of printer cartridge replacements, reverse engineering is a critical part of innovation in a world where more and more devices need to talk to each other in order to operate correctly.

The hearing will take place Monday, June 20, at 9 a.m. at the Eighth Circuit US Court of Appeals, 27th Floor, Southeast Courtroom, at the Thomas F. Eagleton Courthouse, 111 South 10th Street in St. Louis, MO.

Contacts:

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

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Related Issues:
June 13, 2005

EFF Announces its New Legal Guide for Bloggers

San Francisco, CA - The Electronic Frontier Foundation (EFF) is pleased to release a document that informs bloggers of their legal rights. EFF's "Legal Guide for Bloggers" is a collection of frequently asked questions (FAQs) designed to educate bloggers about their legal rights in a number of areas, including libel law, copyright law, and political advocacy.

There is still a lot of confusion about the legal status of bloggers. Are they journalists, due the protections of the reporters' privilege and heightened First Amendment analysis? Are they online service providers, who are generally exempt from liability for the postings of others? EFF's guide explores all of these roles and explains how the law may be interpreted in particular instances.

"Bloggers are a powerful new voice in public debates," said EFF Staff Attorney Kurt Opsahl, who coordinated the project. "The guide will help bloggers understand the basics about the laws that affect them so they can better protect and defend their rights."

EFF will add to the guide over the next several months, posting a section on how labor law may affect people who blog about their workplaces, as well as updates to the law as pending cases are decided.

In addition to publishing the guide, EFF has been involved in the fight to protect bloggers' rights by defending online journalists in the Apple v. Does case, in which Apple Computer, Inc., is trying to uncover the confidential sources for articles about an upcoming Apple product. EFF has also published a paper on how to blog anonymously, and, over the last few years, has advised many bloggers confronting legal issues.

Contact:

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

Related Issues:
June 9, 2005

New EFF White Paper Helps Universities Understand Their Options

San Francisco - With entertainment companies now suing thousands of college students for using the high-speed Internet2 network for filesharing, universities are under more pressure than ever to address the problem of copyright infringement on campus networks. In doing so, they must balance academic freedom with attempts to reduce infringement. To address the issue, the Electronic Frontier Foundation (EFF) today released a white paper exploring solutions. Entitled "When Push Comes to Shove: A Hype-Free Guide to Evaluating Technical Solutions to Copyright on Campus," the paper examines the benefits and drawbacks of several systems designed to combat infringement on university networks.

"The music and movie industries want schools to spy on their students and ban whole categories of computer programs from the learning environment," said EFF Staff Attorney Jason Schultz. "But there are ways to reduce infringement without undermining education and research. This paper explains what they are."

While the paper reviews specific tools such as AudibleMagic, PacketShaper, and the Automated Copyright Notice System (ANCS), it also explores educational and policy solutions. "When Push Comes to Shove" is a must-read for anyone who runs or uses university networks and cares about how the entertainment industry's lawsuits are affecting the future of these networks and the academic environment.

Learn more about filesharing.

Contact:

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

Related Issues:

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