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January 29, 2009

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

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

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

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

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

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

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

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

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

For more on this case:
http://www.eff.org/cases/eff-and-public-knowledge-v-ustr

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

Contacts:

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

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

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

January 29, 2009

Public Deserves Inside Look at File-Sharing Lawsuit Campaign

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

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

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

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

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

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

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

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

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

Contact:

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

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

Related Issues:
January 28, 2009

Michigan State University Clears Student Government Leader

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

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

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

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

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

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

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

Contacts:

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

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

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January 15, 2009

Software Locks on Cell Phones Stifle Competition and Cripple Consumers

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

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
January 14, 2009

Data Seizure Violates Constitution and Federal Law

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

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

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

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

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

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

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

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

Contacts:

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

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

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January 7, 2009

Patent Busting Project Now Six for Six

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

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

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

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

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

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

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

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

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

Contacts:

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

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

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December 22, 2008

Dismissal of Federal Lawsuit Brought by MBTA

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

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

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

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

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

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

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

Contact:

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

Related Issues:
December 4, 2008

EFF Urges Court to Reject Appeal in Tiffany v. eBay

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

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

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

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

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

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

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

Contacts:

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

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

December 2, 2008

EFF Seeks Exemptions for Video Remixes, Cell Phone Unlockers

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

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

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

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

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
December 1, 2008

Unconstitutional Law Cannot Shut Courthouse Door on Americans' Privacy Claims

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

At Tuesday's hearing, EFF will argue that the flawed FISA Amendments Act (FAA) improperly attempts to take away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law. Signed by President Bush earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court in September and is demanding that the cases be dismissed.

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency. EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 46 outstanding lawsuits concerning the government's warrantless surveillance program.

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

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

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

WHEN:
Tuesday, December 2
10 a.m.

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

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

Contact:

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

Related Issues:
November 18, 2008

Parody Website Shut Down by Baseless Lawsuit Against Community Organizer

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

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

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

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

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

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

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

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

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

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

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

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

Related Issues:
November 13, 2008

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

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

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

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

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

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

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

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

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

Contact:

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

Related Issues:
October 27, 2008

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

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

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

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

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

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

Contact:

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

Related Issues:
October 27, 2008

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

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

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

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

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

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

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

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

Contact:

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

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October 20, 2008

Public Interest Coalition Outlines Steps to Protect Online Political Speech

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

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

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

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

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

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

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

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

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

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

Contacts:

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

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

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October 17, 2008

Unconstitutional Law Cannot Shut Courthouse Door on Americans' Privacy Claims

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

In a brief filed in the U.S. District Court in San Francisco, EFF argues that the flawed FISA Amendments Act (FAA) violates the federal government's separation of powers as established in the Constitution and robs innocent telecom customers of their rights without due process of law. Signed into law earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that either the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court last month.

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

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

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

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

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

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

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

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

Contacts:

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

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

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October 8, 2008

Illegitimate Patent Threatens New Innovations in Music Distribution

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

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

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

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

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

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

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

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

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

Contacts:

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

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

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October 1, 2008

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

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

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
September 26, 2008

Copyright Law Should Not Chill Development of Emerging Technologies

New York - The Electronic Frontier Foundation (EFF) and a coalition of groups representing both consumers and industry filed an amicus brief today in the first major lawsuit since MGM v. Grokster against a creator of peer-to-peer (P2P) filesharing software, warning that the case has profound implications for the development of new software and hardware.

In Arista v. Lime Wire, the recording industry plaintiffs seek to hold Lime Wire liable for acts of copyright infringement by users of its software. In its amicus brief, EFF urges the court to apply the law in a manner that will not chill technological innovation and to reaffirm that developers should not be held liable for copyright infringement based on misuses of their technology that they did not actively promote.

“It’s crucial that courts continue to protect emerging technologies that are capable of substantial lawful uses, even if they also can be used in less acceptable ways,” said EFF Senior Intellectual Property Attorney Fred von Lohmann. “The technology industry, consumers, and copyright owners have all benefited from innovations like the photocopier, the CD burner, the iPod, and the personal computer, notwithstanding the fact that all of them can be misused.”

The Lime Wire lawsuit is the latest in a series of lawsuits filed by the recording industry against peer-to-peer filesharing software companies, including past lawsuits against Grokster, Aimster, and Napster.

“Ordinary tasks like offering technical support shouldn’t lead to ruinous copyright liability just because it turns out that some customers are applying a multi-use tool to unlawful purposes,” said EFF Senior Staff Attorney Michael Kwun. “For example, Adobe shouldn’t have to quiz me to ensure I have the rights to the photo I’m editing before it answers my questions about how to use Photoshop.”

Joining EFF on the brief are the Center for Democracy and Technology, the Computer and Communications Industry Association, the Consumer Electronics Association, the Home Recording Rights Coalition, the Information Technology Association of America, Public Knowledge, the Special Libraries Association, and the U.S. Internet Industry Association.

For the full amicus brief:
http://www.eff.org/files/filenode/Arista_v_Lime_Wi/20081926_EFFAmiciBrief.pdf

Contacts:

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

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

September 23, 2008

Quiet Changes in Policy Allow For Searches Without Suspicion of Wrongdoing

San Francisco - Recently obtained documents show that last year the Department of Homeland Security quietly reversed a two-decades-old policy that restricted customs agents from reading and copying the personal papers carried by travelers, including U.S. citizens. The documents were made public today by the Asian Law Caucus (ALC) and Electronic Frontier Foundation (EFF), which sued the government under the Freedom of Information Act (FOIA) to obtain policies governing the searches and questioning of travelers at the nation’s borders.

The documents show that in 2007, Customs and Border Protection (CBP) loosened restrictions on the examination of travelers' documents and papers that had existed since 1986. While CBP agents could previously read travelers' documents only if they had "reasonable suspicion" that the documents would reveal violations of agency rules, in 2007 officers were given the power to "review and analyze" papers without any individualized suspicion. Furthermore, whereas CBP agents could previously copy materials only where they had "probable cause" to believe a law had been violated, in 2007 they were empowered to copy travelers' papers without suspicion of wrongdoing and keep them for a "reasonable period of time" to conduct a border search. The new rules applied to physical documents as well as files on laptop computers, cell phones, and other electronic devices.

In July 2008, the Department of Homeland Security made public a new policy on examining travelers' papers and electronic devices that finalized many of the changes first implemented in 2007. The agency did not disclose, however, how much the new policy deviated from rules that had been in place since 1986. The FOIA documents from ALC's and EFF's suit included the original policy, which had been adopted after a group of U.S. citizens challenged the practices of the 1980s as violating First Amendment rights.

"For more than 20 years, the government implicitly recognized that reading and copying the letters, diaries, and personal papers of travelers without reason would chill Americans' rights to free speech and free expression," said Shirin Sinnar, ALC staff attorney. "But now customs officials can probe into the thoughts and lives of ordinary travelers without any suspicion at all."

In February 2008, ALC and EFF sued the Department of Homeland Security for failing to disclose its policies on searching and questioning travelers at U.S. borders. ALC, a San Francisco-based civil rights organization, received more than two dozen complaints since last year from U.S. travelers, mostly of Muslim, South Asian, or Middle Eastern origin, who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, these individuals said that CBP agents examined their books, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. The documents from the FOIA request show that CBP's wide latitude to collect this data attracted significant attention from other law enforcement agencies that sought to access it.

"Your laptop computer likely contains a massive amount of private information such as personal emails, financial data or confidential business records," said EFF Staff Attorney Marcia Hofmann. "The Department of Homeland Security has given its agents increasingly broad authority to search, copy, and store that information. Congress needs to step in now to stop these invasive practices and protect travelers' privacy."

The newly released documents, which total 661 pages, also reveal that:

* In 2004, CBP adopted a directive on responding to "potential terrorists" seeking to enter the United States. The directive, which was revised in 2006, called for intensive questioning and document review of individuals who were flagged as "known or suspected" terrorists.

* CBP appears to have no policy constraining agents from questioning travelers on their religious practices or political views, in spite of the fact that many travelers have complained about being grilled on such First Amendment-protected activities.

* According to the Tucson, Arizona, field office of CBP, a database developed within that office to gather and disseminate intelligence on possible terrorists was to serve as a model for a national database.

ALC and EFF plan to challenge the government's withholding of portions of many of these documents in federal district court this fall.

For the complete set of FOIA documents and more detailed analysis:
http://www.eff.org/cases/foia-litigation-border-searches.

To interview an individual questioned or searched by CBP:
Contact Shirin Sinnar at 415-848-7714 or shirins@asianlawcaucus.org

Contacts:

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

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

Related Issues:
September 19, 2008

EFF Urges Judge to Dismiss Baseless Lawsuit

San Francisco - The Electronic Frontier Foundation (EFF) and Public Citizen, joined by Public Knowledge and Citizen Media Law Project, urged a federal judge in Chicago Friday to dismiss a law firm's baseless trademark claims, which were apparently aimed at quashing speech by an online news site.

The firm of Jones Day filed the lawsuit against the real estate news site Blockshopper.com, alleging that using its trademark "Jones Day" to refer to the firm in a headline and linking to the Jones Day website could lead to confusion over the sponsorship of the site. In its amicus brief, EFF and Public Citizen argue that these routine references to Jones Day are well-established fair uses of a trademark and clearly protected by the First Amendment.

"The claims are absurd--Blockshopper was simply reporting accurately on the activities of two lawyers who happen to be Jones Day employees," said EFF Staff Attorney Corynne McSherry. "That reporting is protected under trademark and free speech law, and Jones Day should know that. If Jones Day had its way, any trademark holder could use trademark claims to restrict news and commentary related to its business and any of its employees."

"Jones Day alleges that the public could be confused by the references to its name and links, but Internet users know that websites generally link to other websites, independent of any official affiliation," said Paul Alan Levy, attorney with Public Citizen. "That's why it's called the World Wide Web."

This amicus brief is part of EFF's No Downtime for Free Speech Campaign, which works to protect online expression in the face of baseless intellectual property claims. Robert Libman of Barnhill, Miner & Galland assisted in filing the brief.

For the full amicus brief:
http://www.eff.org/files/filenode/JDvBlockshopper/JonesDayAmicusBrief.pdf

Contacts:

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

Paul Alan Levy
Attorney
Public Citizen
plevy@citizen.org

Related Issues:
September 18, 2008

Public Kept in the Dark About Serious Civil Liberties and Privacy Issues

Washington, D.C. - The Electronic Frontier Foundation (EFF) and Public Knowledge have filed suit against the Office of the United States Trade Representative (USTR), demanding information about a secret intellectual property enforcement treaty that the government has put on a fast track to completion.

The United States, Canada, the European Community, Switzerland, Japan, the Republic of Korea, Singapore, Australia, New Zealand, Mexico, Jordan, Morocco, and the United Arab Emirates are currently negotiating the Anti-Counterfeiting Trade Agreement (ACTA). The full text of the treaty remains secret, but a document leaked to the public shows that ACTA could include criminal measures, increased border search powers, and encouragement for Internet service providers to cooperate with copyright holders. Despite the significant impact ACTA could have on consumers and the lack of official information available to the public, treaty proponents want a deal signed by the end of the year.

"ACTA raises serious concerns for citizens' civil liberties and privacy rights," said EFF International Policy Director Gwen Hinze. "This treaty could potentially change the way your computer is searched at the border or spark new invasive monitoring from your ISP. People need to see the full text of ACTA now, so that they can evaluate its impact on their lives and express that opinion to their political leaders. Instead, the USTR is keeping us in the dark while talks go on behind closed doors."

Because of the questions raised by ACTA, EFF and Public Knowledge filed a request under the Freedom of Information Act (FOIA) in June for records on the treaty and the negotiations surrounding the deal. EFF and Public Knowledge later clarified the scope of their request in July in response to concerns raised by the USTR. But the USTR still failed to provide any relevant documents.

"The lack of transparency in this process is incredibly alarming," said Public Knowledge Staff Attorney Sherwin Siy. "Whatever form ACTA eventually takes, we can be sure it will be used to justify further international agreements and laws. The agreement text needs to be made public to ensure that it doesn't encroach upon the rights of users, consumers, and citizens to access knowledge, information, and content."

Earlier this week, EFF and Public Knowledge joined more than 100 public interest organizations from around the world calling for answers about ACTA. The coalition is asking for treaty negotiators to immediately publish the draft text of the agreement, as well as pre-draft discussion papers.

For the full complaint:
http://www.eff.org/files/filenode/EFF_PK_v_USTR/USTRcomplaint.pdf

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

Contacts:

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

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

September 18, 2008

New Legal Challenge to Unconstitutional Domestic Spying

The Electronic Frontier Foundation (EFF) filed a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance.

The lawsuit, Jewel v. NSA, is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

That same evidence is central to Hepting v. AT&T, a class-action lawsuit filed by EFF in 2006 to stop the telecom giant's participation in the illegal surveillance program. Earlier this year, Congress passed a law attempting to derail that case by unconstitutionally granting immunity to AT&T and other companies that took part in the dragnet. Hepting v. AT&T is now stalled in federal court while EFF argues with the government over whether the immunity is constitutional and applies in that case -- litigation that is likely to continue well into 2009.

"In addition to suing AT&T, we've now opened a second front in the battle to stop the NSA's illegal surveillance of millions of ordinary Americans and hold personally responsible those who authorized or participated in the spying program," said Senior Staff Attorney Kevin Bankston. "For years, the NSA has been engaged in a massive and massively illegal fishing expedition through AT&T's domestic networks and databases of customer records. Our goal in this new case against the government, as in our case against AT&T, is to dismantle this dragnet surveillance program as soon as possible."

In addition to suing the government agencies involved in the domestic dragnet, the lawsuit also targets the individuals responsible for creating, authorizing, and implementing the illegal program, including President Bush and Vice President Cheney.

"Demanding personal accountability from President Bush, Vice President Cheney and others responsible for the NSA's dragnet surveillance of ordinary Americans' communications is the best way to guarantee that such blatantly illegal spying will not be authorized in the future," said EFF Legal Director Cindy Cohn. "Our lawsuit today should sound a clear warning to future occupants of the White House: if you break the law and violate Americans' privacy, there will be consequences."

For the full complaint in Jewel v. NSA:
http://www.eff.org/files/filenode/jewel/jewel.complaint.pdf

For more on the case:
http://www.eff.org/cases/jewel

Related Issues:
September 11, 2008

Government Must Get a Warrant Before Seizing Cell Phone Location Records

San Francisco - In an unprecedented victory for cell phone privacy, a federal court has affirmed that cell phone location information stored by a mobile phone provider is protected by the Fourth Amendment and that the government must obtain a warrant based on probable cause before seizing such records.

The Department of Justice (DOJ) had asked the federal court in the Western District of Pennsylvania to overturn a magistrate judge's decision requiring the government to obtain a warrant for stored location data, arguing that the government could obtain such information without probable cause. The Electronic Frontier Foundation (EFF), at the invitation of the court, filed a friend-of-the-court brief opposing the government's appeal and arguing that the magistrate was correct to require a warrant. Wednesday, the court agreed with EFF and issued an order affirming the magistrate's decision.

EFF has successfully argued before other courts that the government needs a warrant before it can track a cell phone's location in real-time. However, this is the first known case where a court has found that the government must also obtain a warrant when obtaining stored records about a cell phone's location from the mobile phone provider.

"Cell phone providers store an increasing amount of sensitive data about where you are and when, based on which cell towers your phone uses when making a call. Until now, the government has routinely seized these records without search warrants," said EFF Senior Staff Attorney Kevin Bankston. "This landmark ruling is hopefully only the first of many. Just as magistrates across the country have begun denying government requests to track cell phones in real-time without warrants, based on arguments first made by EFF, so too do we hope this decision will spark new scrutiny of the government's unconstitutional seizure of stored cell phone location records."

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

For Wednesday's decision:
http://www.eff.org/files/filenode/celltracking/lenihanorder.pdf

For the full amicus brief in the cell phone records case:
http://www.eff.org/files/filenode/celltracking/LenihanAmicus.pdf

For the magistrate's order:
http://www.eff.org/files/filenode/celltracking/criminalapplicationorder_finalopinion.pdf

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

Contacts:

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

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

August 19, 2008

Free Speech Victory for Security Researchers

Boston - Today, a federal judge lifted an unconstitutional gag order that had prevented three Massachusetts Institute of Technology (MIT) students from disclosing academic research regarding vulnerabilities in Boston's transit fare payment system. The court found that the Massachusetts Bay Transportation Agency (MBTA) had no likelihood of success on the merits of its claim under the federal computer intrusion law and denied the transit agency's request for a five-month injunction. In papers filed yesterday, the MBTA acknowledged for the first time that their Charlie Ticket system had vulnerabilities and estimated that it would take five months to fix.

Tuesday's ruling lifts the restriction preventing the student researchers from talking about their findings regarding the security vulnerabilities of Boston's Charlie Card and Charlie Ticket -- a project that earned them an "A" from renowned computer scientist and MIT professor Dr. Ron Rivest. The Electronic Frontier Foundation (EFF) represents the students as part of its Coders' Rights Project.

"We're very pleased that the court recognized that the MBTA's legal arguments were meritless," said EFF Legal Director Cindy Cohn, who argued at the hearing. "The MBTA's attempts to silence these students were not only misguided, but blatantly unconstitutional."

The students had planned to present their findings earlier this month at DEFCON, a security conference held in Las Vegas, while leaving out key details that would let others exploit the vulnerability. The students met with the MBTA about a week before the conference and voluntarily provided a confidential vulnerability report to the transit agency. However, the MBTA subsequently sued the students and MIT in United States District Court in Massachusetts less than 48 hours before the scheduled presentation, without providing any advance notice to the students. The lawsuit claimed that the students' planned presentation would violate the Computer Fraud and Abuse Act (CFAA) by enabling others to defraud the MBTA of transit fares. A different federal judge, meeting in a special Saturday session, ordered the trio not to disclose for ten days any information that could be used by others to get free subway rides.

"The judge today correctly found that it was unlikely that the CFAA would apply to security researchers giving an academic talk," said EFF Staff Attorney Marcia Hofmann. "A presentation at a security conference is not some sort of computer intrusion. It's protected speech and vital to the free flow of information about computer security vulnerabilities. Silencing researchers does not improve security -- the vulnerability was there before the students discovered it and would remain in place regardless of whether the students publicly discussed it or not."

Although the gag order was lifted, the MBTA's litigation against the students still continues. The students have already voluntarily provided a 30-page security analysis to the MBTA and have offered to meet with the MBTA and walk the transit agency through the security vulnerability and the students' suggestions for improvement.

"The only thing keeping the students and the MBTA from working together cooperatively to resolve the fare payment card security issues is the lawsuit itself," said EFF Senior Staff Attorney Kurt Opsahl. "The MBTA would be far better off focusing on improving the MBTA's fare payment security instead of pursuing needless litigation."

This case is part of EFF's Coders' Rights Project, launched two weeks ago to protect programmers and developers from legal threats hampering their cutting-edge research. EFF was assisted in this case by John Reinstein, ACLU of Massachusetts Legal Director, and Fish & Richardson attorneys Adam Kessel, Lawrence Kolodney, and Tom Brown.

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

Contacts:

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

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

Related Issues:
August 18, 2008

EFF Urges Court to Protect Customers' Privacy

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal court Friday to reject efforts by Echostar to get the names and addresses of every customer that purchased a free-to-air satellite receiver. Echostar claims that the receiver can be modified to pirate DISH satellite TV programming. EFF argues that Echostar's demand, which seeks all purchasers regardless of whether they actually pirated DISH TV, would violate user privacy and leave innocent purchasers vulnerable to bogus legal threats.

The demand for customer records came up in a lawsuit between Echostar, the company behind the DISH satellite TV service, and Freetech, Inc., the manufacturer of Coolsat free-to-air satellite receivers. As part of the suit, Echostar subpoenaed 17 distributors of Coolsat receivers, demanding the names, addresses, phone numbers, email addresses, and other information of every person who purchased a Coolsat receiver over the last five years.

"Innocent customers should not be dragged into federal litigation just because they bought a product that other, less scrupulous purchasers may be hacking for unlawful purposes," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The court should recognize the privacy interests of these customers, especially since Echostar does not need these customer lists in order to have its day in court against Freetech."

In recent years, satellite TV companies, record labels, and movie studios have all engaged in dragnet litigation tactics that threaten individuals with costly lawsuits unless they pay significant financial sums to "settle" the dispute. These mass litigation campaigns leave innocent consumers trapped between paying a "settlement" for something they did not do or facing even higher legal costs to prove their innocence. Satellite TV provider DirecTV pioneered this approach in 2001, threatening more than 120,000 individuals with legal action and commencing more than 24,000 federal lawsuits, often with no evidence other than the fact that the individual purchased multi-purpose devices that could be used for piracy.

"Once the names of Freetech customers are disclosed to Echostar, there may be little that any court can do to protect these people from harassment, settlement demands, and legal expenses," said EFF Senior Staff Attorney Matt Zimmerman. "This may be the last chance the court has to protect the privacy of these individuals."

For the full amicus brief:
http://www.eff.org/files/filenode/echostar_v_freet/EFFamicusEchostarvFreetech.pdf

For more on Echostar v. Freetech:
http://www.eff.org/cases/echostar-v-freetech

Contacts:

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

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

Related Issues:
August 13, 2008

Thursday Hearing Set on Temporary Restraining Order

Boston - The Electronic Frontier Foundation (EFF) urged a federal judge Tuesday to lift an unconstitutional gag order issued to three students at the Massachusetts Institute of Technology (MIT) whose academic research uncovered vulnerabilities in Boston's transit fare payment system.

A hearing on the temporary restraining order is set for 11am Thursday at the United States District Court for the District of Massachusetts in Boston.

The students -- Zack Anderson, RJ Ryan and Alessandro Chiesa -- would like to resolve this dispute amicably with the Massachusetts Bay Transit Authority (MBTA). However, it has been hard to find an amicable resolution when the students are the subjects of a vigorous lawsuit and under the restrictions of a temporary restraining order. This remains true even though the MBTA filed a motion earlier this week to modify the restraining order to only prohibit disclosure of "non-public" information.

"We appreciate the gesture," said EFF Staff Attorney Marcia Hofmann. "But it does not resolve the dispute. Indeed, we would hope everyone acknowledges that it is impermissible under the Constitution for a court to order someone not to repeat publicly available truthful information."

"The restraining order, even if modified, remains an improper prior restraint restricting speech," said EFF Civil Liberties Director Jennifer Granick. "The First Amendment does not allow people to be silenced because their speech exposes flaws, even if those flaws might someday be illegally misused by others. To protect our clients' rights, we had no choice but to ask the court to reconsider the gag order."

As part of EFF's court filing Tuesday, 11 computer scientists and researchers from the nation's top research and educational institutions submitted a letter in support of the MIT students, including Professor David Farber of Carnegie Mellon, Professor Steve Bellovin of Columbia University, and computer security expert Bruce Schneier. The group explained that security research and information are critical for scientific advancement, and stated that restraining orders such as the one issued by the court over the weekend could have a devastating chilling effect on future academic endeavors.

"The students' ultimate goal in the security research was to help the MBTA improve its security," said EFF Senior Staff Attorney Kurt Opsahl. "Despite colorful marketing rhetoric advertising a presentation of the students' work at a security conference, the students never intended to provide sufficient information to the public to replicate the attack."

For more details on Thursday's hearing, contact press@eff.org.

For the full motion to reconsider:
http://www.eff.org/files/filenode/MBTA_v_Anderson/studentresponse081208.pdf

For the full letter from the computer scientists and researchers:
http://www.eff.org/files/filenode/MBTA_v_Anderson/letter081208.pdf

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

Contact:

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

Related Issues:
August 9, 2008

EFF Backs Researchers Forced to Cancel Presentation on Transit Fare Payment System

Las Vegas - Three students at the Massachusetts Institute of Technology (MIT) were ordered this morning by a federal court judge to cancel their scheduled presentation about vulnerabilities in Boston's transit fare payment system, violating their First Amendment right to discuss their important research.

The Electronic Frontier Foundation (EFF) represents Zack Anderson, RJ Ryan and Alessandro Chiesa, who were set to present their findings Sunday at DEFCON, a security conference held in Las Vegas. However, the Massachusetts Bay Transit Authority (MBTA) sued the students and MIT in United States District Court in Massachusetts on Friday, claiming that the students violated the Computer Fraud and Abuse Act (CFAA) by delivering information to conference attendees that could be used to defraud the MBTA of transit fares. This morning District Judge Douglas P. Woodlock, meeting in a special Saturday session, ordered the trio not to disclose for ten days any information that could be used by others to get free subway rides.

"We wanted to share our academic work with the security community and had planned to withhold a key detail of our results so that a malicious attacker could not use our research for fraudulent purposes," said Anderson. "We're disappointed that the court is preventing us from presenting our findings even with this safeguard."

Vulnerabilities in magnetic stripe and RFID card payment systems implemented by many urban transit systems are generally known. The student research applied this information to the specific case of Boston's Charlie Card and Charlie Ticket, and the project earned an A from renowned computer scientist and MIT professor Dr. Ron Rivest.

The court relied on a federal law aimed at computer intrusions in issuing its order, holding that even discussing the flaws at a public conference constituted a "transmission" of a computer program that could harm the fare collection system.

"The court's order is an illegal prior restraint on legitimate academic research in violation of the First Amendment," said EFF Civil Liberties Director Jennifer Granick. "The court has adopted an interpretation of the statute that is blatantly unconstitutional, equating discussion in a public forum with computer intrusion. Security and the public interest benefit immensely from the free flow of ideas and information on vulnerabilities. More importantly, squelching research and scientific discussion won't stop the attackers. It will just stop the public from knowing that these systems are vulnerable and from pressuring the companies that develop and implement them to fix security holes."

This case is part of EFF's Coders' Rights Project, launched just this week to protect programmers and developers from legal threats hampering their cutting-edge research. EFF will seek relief for the researchers in the courts.

For the full temporary restraining order:
http://www.eff.org/files/filenode/MIT%20students%20TRO.pdf

For more on the Coders' Rights Project:
http://www.eff.org/issues/coders

Contacts:

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

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

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

Related Issues:
August 6, 2008

New Initiative to Protect Programmers From Legal Threats

Las Vegas - The Electronic Frontier Foundation (EFF) today launches its Coders' Rights Project -- a new initiative to protect programmers and developers from legal threats hampering their cutting-edge research.

In conjunction with the project's launch, EFF is staffing an "EFF Is In" booth at Black Hat USA 2008 in Las Vegas on August 6 and 7. At the booth, EFF attorneys will provide legal information on reverse engineering, vulnerability reporting, and copyright law, as well as patent, trade secret, and free speech issues.

"Coders who explore technology through innovation and research play a vital role in developing and securing the software and hardware we use everyday. Yet this important work can be stymied by bogus legal threats," said EFF Civil Liberties Director Jennifer Granick, who is heading up the project. "EFF's Coders' Rights Project will provide a front-line defense for coders facing legal challenges for legitimate research activities."

The Coders' Rights Project will build upon EFF's long history of work to limit the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) from reaching security and encryption researchers. EFF will also expand its involvement in matters involving the Computer Fraud and Abuse Act and state computer crime laws. Additionally, EFF has created resources for programmers doing work involving reverse engineering and vulnerability reporting, available at http://eff.org/coders.

"Those of us doing research on computer security and privacy need to be able to discuss and publish our work without fear of legal threats," said EFF Board Member Edward W. Felten, a security researcher and Princeton University professor who challenged provisions of the DMCA with EFF in 2001. "The Coders' Rights Project will give critical legal help to programmers and developers who do the hard work in keeping technology robust and users safe."

Other goals of the Coders' Rights Project include narrowing computer crime laws and limiting the power of End User License Agreements (EULAs) to protect reverse engineering, reviews, benchmarking, and the consumer's right to tinker.

For more on the Coders' Rights Project:
http://eff.org/coders

Contacts:

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

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

Related Issues:
August 5, 2008

Email and Cell Phone Privacy Threatened in Two Separate Court Cases

San Francisco - The Electronic Frontier Foundation (EFF) has filed friend-of-the-court briefs in two key electronic privacy cases that threaten to expand the government's spying authority.

In the first case, Bunnell v. Motion Picture Association of America (MPAA), EFF filed a brief with the 9th U.S. Circuit Court of Appeals arguing that federal wiretapping law protects emails from unauthorized interception while they are temporarily stored on the email servers that transmit them. This case was brought against the MPAA by the owners and operators of TorrentSpy, a search engine that let Internet users locate files on the BitTorrent peer-to-peer network. After a business dispute, one of TorrentSpy's independent contractors hacked into the company email server and configured it to copy and forward all incoming and outgoing email to his personal account and then sold the information to the MPAA. However, the federal district court ruled that because the emails were stored on the mail server for several milliseconds during transmission, they were not technically "intercepted" under the federal Wiretap Act. In its amicus brief filed Friday, EFF argues that this dangerous ruling is incorrect as a matter of law and must be overturned in order to prevent the government from engaging in similar surveillance without a court order.

"The district court's decision, if upheld, would have dangerous repercussions far beyond this single case," said EFF Senior Staff Attorney Kevin Bankston. "That court opinion -- holding that the secret and unauthorized copying and forwarding of emails while they pass through an email server is not an illegal interception of those emails -- threatens to wholly eviscerate federal privacy protections against Internet wiretapping and to authorize the government to conduct similar email surveillance without getting a wiretapping order from a judge."

The second case concerns a request by the Department of Justice (DOJ) to a federal magistrate judge in Pennsylvania for authorization to obtain cell phone location tracking information from a mobile phone provider without probable cause. The magistrate instead demanded that the DOJ obtain a search warrant based on probable cause, and the DOJ appealed that decision to the federal district court in the Western District of Pennsylvania. In an amicus brief filed Thursday, EFF urged the district court to uphold the magistrate's ruling and protect cell phone users' location privacy.

"Location information collected by cell phone companies can provide an extraordinarily invasive glimpse into the private lives of cell phone users. Courts have the right under statute -- and the duty under the Fourth Amendment -- to demand that the government obtain a search warrant based on probable cause before seizing such sensitive information," said Bankston. "This is only the latest of many cases where EFF has been invited to brief judges considering secret surveillance requests that aren't supported by probable cause. We hope this court recognizes the serious Fourth Amendment questions that are raised by warrantless access to cell phone location information and affirms the magistrate's denial of the government's surveillance request."

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

For the full amicus brief in Bunnell v. MPAA:
http://www.eff.org/files/filenode/Bunnell_v_MPAA/BunnellAmicus.pdf

For the full amicus brief in the cell phone records case:
http://www.eff.org/files/filenode/celltracking/LenihanAmicus.pdf

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

Contacts:

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

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

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

August 4, 2008

Misuse of Computer Crime Law Could Turn Millions of Americans into Federal Criminals

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of academics and public policy groups are urging a judge to dismiss computer crime charges in a case with dangerous ramifications for millions of people who use the Internet.

The defendant in the case, Lori Drew, is charged with violating the Computer Fraud and Abuse Act (CFAA) by using a fictitious name and age on a MySpace account and using that account to make hurtful comments to a teenage girl. Tragically, the girl later took her own life. Federal prosecutors claim Drew broke federal law by violating MySpace's terms of service and that the MySpace communications were responsible for the girl's death. In an amicus brief filed Friday, EFF argues that criminal charges for a terms of service violation is a dramatic misapplication of the CFAA with far-ranging consequences for American computer users.

"This is a novel and unprecedented response to what everyone recognizes as a tragic situation," said EFF Civil Liberties Director Jennifer Granick. "The CFAA is aimed at penalizing computer trespassers, but under the government's theory, the millions of people who disregard -- or don't read -- the terms of service on every website they visit could face computer crime charges. That's a big blank check to give federal prosecutors."

For example, this interpretation of the law would attach criminal penalties to anyone under the age of 18 who uses the Google search engine, because Google's terms of service specify all users must be of legal age to enter into a contract.

"Websites' terms of service are notoriously frivolous and overreaching, often hard to find, and routinely written in legalese bound to confuse a non-lawyer. Many courts have found them unenforceable in civil cases. They certainly should not be the basis for a criminal prosecution," said Granick

EFF's amicus brief was also signed by the Center for Democracy and Technology, Public Citizen, and 14 individual faculty members of law schools across the country.

For the full amicus brief:
http://www.eff.org/files/filenode/US_v_Drew/Drew_Amicus.pdf

Contact:

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

August 1, 2008

Empowers Internet Users on Eve of FCC Comcast Action

San Francisco - Hours before the Federal Communications Commission (FCC) is expected to take action against Comcast for violating the FCC's net neutrality principles, the Electronic Frontier Foundation (EFF) is releasing "Switzerland," a software tool for customers to test the integrity of their Internet communications.

The FCC action, expected later today, is a response to formal complaints regarding efforts by Comcast to interfere with its subscribers' use of BitTorrent to share files over the Internet. These interference efforts were first documented and disclosed in October 2007 by EFF, the Associated Press, and a concerned Internet user, Robb Topolski. EFF subsequently urged the FCC to declare Comcast's efforts inconsistent with the Commission's 2005 "Internet Policy Statement," which sets a benchmark for neutral treatment of Internet traffic.

"The sad truth is that the FCC is ill-equipped to detect ISPs interfering with your Internet connection," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "It's up to concerned Internet users to investigate possible network neutrality violations, and EFF's Switzerland software is designed to help with that effort. Comcast isn't the first, and certainly won't be the last, ISP to meddle surreptitiously with its subscribers' Internet communications for its own benefit."

"Until now, there hasn't been a reliable way to tell if somebody -- a hacker, an ISP, corporate firewall, or the Great Firewall of China -- is modifying your Internet traffic en route," said Peter Eckersley, EFF Staff Technologist and designer of Switzerland. "The few tests available have been for narrow and specific kinds of interference, or have required tremendous amounts of advanced forensic labor. Switzerland is designed to make general-purpose ISP testing faster and easier."

Part of EFF's "Test your ISP" project, Switzerland is an open source, command-line software tool designed to detect the modification or injection of packets of data by ISPs. Switzerland detects changes made by software tools believed to be in use by ISPs such as Sandvine and AudibleMagic, advertising systems like FairEagle, and various censorship systems. Although currently intended for use by technically sophisticated Internet users, development plans aim to make the tool increasingly easy to use.

For more information and to download the Switzerland software:
http://www.eff.org/testyourisp/switzerland

For more about EFF's "Test Your ISP" Project:
http://www.eff.org/testyourisp

Contacts:

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

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

Related Issues:
July 15, 2008

Home Movie of Toddler Dancing to Prince Sparks Bogus Copyright Claim

San Jose - On Friday, July 18, at 9 a.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose to protect the free speech and fair use rights of mother who posted a home movie of her son dancing to Prince on YouTube.

EFF represents Stephanie Lenz, who uploaded a 29-second clip of her son dancing in the family kitchen to the Prince song, "Let's Go Crazy," which is playing on a stereo in the background. Remarkably, Universal Music Publishing Group claimed that the video infringed its copyrights, and had the video yanked from YouTube. Lenz's lawsuit against Universal seeks to hold the company accountable for misrepresenting that her fair use violated its copyrights.

In Friday's hearing, EFF will ask U.S. District Court Judge Jeremy Fogel to reject Universal's motion to dismiss the case, and allow Lenz's lawsuit to continue.

WHAT:
Lenz v. Universal

WHEN:
Friday, July 18
9 a.m.

WHERE:
United States District Court, Northern District of California
Courtroom 3, 5th Floor
280 South 1st Street
San Jose, CA 95113

Contact:

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

Related Issues:
July 9, 2008

Telecoms Let Off the Hook for Illegal Spying - For Now

Washington, D.C. - The U.S. Senate this afternoon passed the FISA Amendments Act, broadly expanding the president's warrantless surveillance authority and unconstitutionally granting retroactive immunity to telecommunications companies that participated in the president's illegal domestic wiretapping program. The House of Representatives passed the same bill last month, and President Bush is expected to sign the legislation into law shortly.

"It is an immeasurable tragedy that just after its return from the Fourth of July holiday, the Senate has chosen to pass a bill that betrays the spirit of 1776 by radically expanding the president's spying powers and granting immunity to the companies that colluded in his illegal surveillance program," said Senior Staff Attorney Kevin Bankston of the Electronic Frontier Foundation (EFF). "This so-called compromise bill represents a shameful capitulation to the overreaching demands of an imperial president. As Senator Leahy put it in yesterday's debate, the retroactive immunity provision of the bill upends the scales of justice and makes Congress and the courts handmaidens to the White House's cover-up of its illegal surveillance program."

The FISA Amendments Act won passage after several amendments intended to remove or modify the bill's immunity provision failed to pass. One amendment, offered by Senator Christopher Dodd, would have stripped immunity from the bill altogether. Another, introduced by Senator Jeff Bingaman, would have stayed the pending cases against the telecoms and delayed the implementation of the immunity provision until the Inspectors General of the Department of Justice and other U.S. government intelligence agencies finished their investigation into the spying program, thereby preventing Congress from granting immunity in the dark.

"We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president's illegal surveillance is not over," said EFF Senior Staff Attorney Kurt Opsahl. "Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans' rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future."

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

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

Contacts:

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

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

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

Related Issues:
July 1, 2008

Lawsuit Tests U.S. Assurances of Access Rights for EU Citizens

Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit on behalf of a member of the European Parliament today, demanding that the U.S. government release records about her "risk assessment" score and other information gathered about her during her international travels. The lawsuit comes just days after the disclosure that the U.S. and the European Union may soon finalize an agreement authorizing the transatlantic exchange of large amounts of personal data.

Sophia In 't Veld represents the Netherlands in the European Parliament and serves on the Committee on Civil Liberties, Justice, and Home Affairs. She has been actively engaged in developing policies concerning the exchange of travelers' data between the U.S. and the European Union (EU).

During the ongoing and contentious debates between the U.S. and the EU over travelers' records and the privacy rights of EU citizens, the U.S. government has repeatedly claimed that any person can obtain her records through a Freedom of Information Act (FOIA) request. To test those assurances, In 't Veld filed FOIA requests with the Homeland Security, Justice, and State Departments, asking for any information about her that is included in the various U.S. programs and systems used to track international travelers. However, the agencies have failed to comply with the requests as required by federal law.

"The question of redress is the sticking point in the current discussions about data exchanges between the United States and the EU," said In 't Veld. "That dispute underscores the importance of this case; it shows that gaining access to personal data held by U.S. agencies is very difficult, if not impossible."

Among other records, In 't Veld specifically requested data about herself that is included in the Automated Targeting System (ATS) -- a Department of Homeland Security project that creates and assigns "risk assessment" scores to travelers as they enter and leave the U.S. Once the assessment is made, there is no way to challenge it, and the government will retain the information for many years -- as well as make it available to federal, state, local, and foreign agencies in addition to contractors, grantees, consultants, and others.

"Ms. In 't Veld's experience shows the inaccuracy of U.S. assurances that EU citizens can gain easy access to personal information held in agency databases," said EFF Senior Counsel David Sobel. "The truth is that it is virtually impossible for any individuals --even U.S. citizens -- to access information about themselves that is collected and maintained by American security agencies. It's important that EU officials and citizens understand the reality of the situation before moving forward with a sweeping agreement on the exchange of sensitive personal data."

This FOIA lawsuit is part of EFF's ongoing work to protect travelers from privacy-invasive programs at the U.S. border. EFF has also filed suit against DHS for denying access to public records on the questioning and searches of travelers at U.S. borders and called on Congress to investigate the random, suspicionless searches of laptops and electronic devices.

For the full complaint:
http://www.eff.org/files/int_veld_complaint.pdf

For more on the U.S./EU data sharing agreement:
http://www.nytimes.com/2008/06/28/washington/28privacy.html

For more on travel screening:
http://www.eff.org/issues/travel-screening

For more on FOIA:
http://www.eff.org/issues/foia

Contacts:

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

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

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

June 23, 2008

Wednesday Hearing on Laptop Searches and Other Privacy Violations

Washington, D.C. - On Wednesday, June 25, at 9 a.m., members of the U.S. Senate Judiciary hearing will hold a public hearing on laptop searches and other privacy violations faced by Americans at the U.S. border.

Senior Staff Attorney Lee Tien of the Electronic Frontier Foundation will appear at Wednesday's hearing to urge more congressional investigation and oversight of the Department of Homeland Security's border search practices and policies. While the U.S. Supreme Court has ruled that customs and border agents can perform "routine" searches at the border without a warrant or even reasonable suspicion, increasingly Americans are complaining about random and invasive searches of their laptops, cell phones, and other digital devices as they come home from overseas travel. In a typical search, U.S. border officials will turn on the device and then open and review files. If agents see something of interest, they may copy data or confiscate the device -- even if the traveler is not suspected of criminal activity.

"These ongoing baseless searches of electronic devices at America's borders are not 'routine,' they're unreasonable," said Tien. "It's hard to imagine something more invasive than a wholesale copying of private files from a personal computer. We need Congress and the courts to recognize a standard for digital searches and seizures at the border that protects the privacy, property, and free speech rights of Americans in the Information Age."

WHO:
Lee Tien
Senior Staff Attorney Electronic Frontier Foundation

WHAT:
"Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel"
U.S. Senate Judiciary Subcommittee on the Constitution

WHEN:
9 a.m.
Wednesday, June 25

WHERE:
Dirksen Senate Office Building
Room 226
Washington, D.C.

For more on the hearing:
http://judiciary.senate.gov/hearing.cfm?id=3420

Contacts:

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

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

Related Issues:
June 20, 2008

EFF Condemns House Vote, Looks to Senate for Leadership

Washington, D.C. - Privacy rights and the rule of law took a serious blow today when the House of Representatives passed blanket retroactive immunity for phone companies that participated in the president's warrantless surveillance program. The FISA Amendments Act, H.R. 6304, which House Leadership rushed to the floor today after its introduction yesterday, passed by a vote of 293 to 129. The Senate is expected to vote on the bill next week.

The bill was touted as a bipartisan "compromise" on the issues of electronic surveillance and immunity. But in fact it requires dismissal of lawsuits against companies like AT&T that participated in the program as long as the companies received a piece of paper from the government indicating that the surveillance had been authorized by the president and was determined to be lawful.

"Immunity for telecom giants that secretly assisted in the NSA's warrantless surveillance undermines the rule of law and the privacy of every American," said EFF Senior Staff Attorney Kevin Bankston. "Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying. If this legislation passes the Senate and is signed into law, the American people will have lost their last best chance to discover the true scope of the president's wiretapping program and to determine whether or not the law was broken."

"We are deeply disappointed that the House Leadership, which was so courageous in its previous opposition to telecom immunity, caved to the Administration's fear-mongering and put this seriously flawed legislation on the floor for a vote," said Bankston. "We look to leaders in the Senate who value the rule of law to stand up and strongly oppose this blanket immunity for telecom lawbreakers, and in particular urge Senator Barack Obama to lead his party in rejecting this false compromise."

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of the millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

Contacts:

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

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

Related Issues:
June 20, 2008

Court To Reconsider Baseless 'Making Available' Theory In File-Sharing Case

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of consumer and industry groups have asked a judge to grant a new trial to Jammie Thomas, who was hit with a $222,000 judgment in a file-sharing lawsuit based in part on the recording industry's bogus "making available" theory.

Thomas' trial and the staggering financial penalty made headlines around the world. In the case, the Recording Industry Association of America (RIAA) sought to hold Thomas liable for unauthorized distribution of digital music over the Internet without having to prove that anyone actually downloaded songs from her. The RIAA argued that simply making the songs available in a shared folder on her computer was enough to impose penalties, and a jury found Thomas liable for $220,000 in October of 2007.

But earlier this year, the judge in the case said he was concerned that he might have made a mistake when he followed the RIAA's reasoning in his jury instructions and asked for more briefing on whether Thomas deserved a new trial. In an amicus brief filed today, EFF argues that the RIAA cannot take shortcuts when it takes music fans to court.

"The Copyright Act simply does not allow suing someone for attempted copyright infringement," said EFF Staff Attorney Corynne McSherry. "If the RIAA wants to continue with its mass litigation campaign, it's going to have to invest the time and resources to actually prove those cases -- if it can -- by showing that infringement actually occurred."

The RIAA has sued more than 20,000 individuals for allegedly sharing music over the Internet since it started its lawsuit campaign in 2003.

"The RIAA's specious 'making available' argument threatens to brand people as thieves when the evidence isn't really there," said EFF Senior Intellectual Property Attorney Michael Kwun. "We're pleased the judge is taking a second look at this critical question."

Joining EFF on the brief were Public Knowledge, the United States Internet Industry Association, and the Computer and Communications Industry Association.

For the full amicus brief:
http://www.eff.org/files/filenode/capitol_v_thomas/20080620EFFAmiciBrief.pdf

For more on Capitol v. Thomas:
http://www.eff.org/cases/capitol-v-thomas

Contacts:

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

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

Related Issues:
June 19, 2008

Secret Bill's Text Finally Available, Vote in House Likely Tomorrow

Washington, D.C. - EFF calls on members of the House of Representatives to vote "NO" on H.R.6304, the FISA Amendments Act of 2008, which the House is expected to vote on tomorrow. The text of the bill was released today, and it contains blanket retroactive immunity for telcos that broke the law by cooperating with the NSA's warrantless surveillance program.

"Whatever gloss might be put on it, the so-called 'compromise' on immunity is anything but: the current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review," said EFF Senior Staff Attorney Kevin Bankston. "We call on all members of Congress to reject this sham compromise and maintain the rule of law, rather than deprive the millions of ordinary Americans whose privacy rights were violated of their day in court."

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of the millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

For the full text of the FISA Amendments Act:
http://www.eff.org/files/filenode/att/FISAINTRO_001_xml.pdf

For EFF's analysis of the immunity bill's provisions:
http://www.eff.org/files/AnalysisHR6304-v5.pdf

Contacts:

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

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

Related Issues:
June 18, 2008

Proposal in Congress Would Let Telecoms Off the Hook for Illegal Spying

Washington, D.C. - Congress is widely reported to have struck a deal on legislation to amend the Foreign Intelligence Surveillance Act (FISA) that includes immunity for telecommunications companies that helped the government illegally spy on millions of ordinary Americans. Today, the Electronic Frontier Foundation (EFF) held a press conference with the ACLU to emphasize that this much-touted "compromise" is a sham aimed at letting both the government and the telecoms off the hook for violating the law and the Constitution.

"Whatever gloss might be put on it, the so-called 'compromise' on immunity is anything but: the current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review," said EFF Senior Staff Attorney Kevin Bankston. "We call on all members of Congress to reject this sham compromise and maintain the rule of law, rather than deprive the millions of ordinary Americans whose privacy rights were violated of their day in court."

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of the millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

For Kevin Bankston's complete statement on the FISA deal from today's press conference:
http://www.eff.org/files/filenode/EFF_bankston.pdf

Contacts:

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

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

Related Issues:
June 13, 2008

Petition Withdrawn After EFF Files Amicus Brief

Cook County, IL - The president of a Chicago suburb has dropped his attempt to obtain the identity of an anonymous MySpace user after the Electronic Frontier Foundation (EFF) filed an amicus brief detailing how the petition violated both the First Amendment and a federal statute that protects the privacy of online users.

In May, Cicero, IL, Town President Larry Dominick asked a Cook County Circuit Court judge to order the disclosure of the identity of the author of two MySpace profiles that allegedly included defamatory comments and unnamed privacy violations. EFF stepped in and asked the judge to reject Dominick's request, arguing that any attempt to unmask the anonymous speaker would violate the author's First Amendment right to remain anonymous unless Dominick could demonstrate a viable legal claim. In addition, the federal Stored Communications Act prohibits government entities such as Dominick -- who brought the petition in his official government capacity -- from obtaining identifying customer information through the ordinary civil discovery process.

"We are grateful that Mr. Dominick has chosen to abandon his misguided attempt to unmask a critic through the use of the legal system," said EFF Senior Staff Attorney Matt Zimmerman. "While litigants may pursue claims against speakers who have truly engaged in defamatory speech, it is not enough -- especially for an elected official -- to walk into court and demand the identity of an anonymous speaker supported with nothing but a vague allegation of wrongdoing."

EFF was assisted in this matter by Charles Mudd, Jr., and Sophie Dye of Mudd Law Offices in Chicago.

For the order dismissing the petition:
http://www.eff.org/files/filenode/dom_v_myspace/2008-06-13%20Order.pdf

For more on anonymity:
http://www.eff.org/issues/anonymity

Contact:

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

Related Issues:
June 12, 2008

EFF Asks for Review of Flawed Appeals Court Ruling

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

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

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
June 11, 2008

Ruling Affirms Right to Resell Promo CDs

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

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

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
June 9, 2008

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

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

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

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

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

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

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

Contacts:

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

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

June 9, 2008

Bogus Copyright Claims Used to Block YouTube Critique of Animal Mistreatment

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

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

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

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

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

This lawsuit is part of EFF's No Downtime for Free Speech Campaign, which works to protect online expression in the face of baseless copyright claims. EFF has seen people and organizations increasingly misusing the DMCA to demand that material be removed from the Internet without providing any proof of infringement. Furthermore, service providers -- fearful of monetary damages and legal hassles -- often comply with these requests without double-checking them, despite the cost to free speech and individual rights.

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

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

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

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

Contacts:

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

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

Michael Kobliska
SHARK Investigator
mkobliska@sharkonline.org

Related Issues:
June 5, 2008

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

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

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

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

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

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

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

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

Contact:

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

Related Issues:
May 23, 2008

Latest Proposal Even Worse Than the Last

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

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

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

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

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

Contact:

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

Related Issues:
May 7, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Contacts:

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

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

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

May 2, 2008

Federal Law Protects Popular User-Created Encyclopedia From Liability

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

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

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

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

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

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

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

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

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

Contacts:

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

Mike Godwin
General Counsel
Wikimedia Foundation
mgodwin@wikimedia.org

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

Related Issues:
May 1, 2008

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

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

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

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

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

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

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

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

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

Contacts:

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

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

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