EFFector Vol. 18, No. 11 March 31, 2005
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 327th Issue of EFFector:
- Supreme Court Justices Grill Both Sides at Copyright Hearing
- New US Passports Will Serve as Terrorist Beacons
- It's Official: TSA Lied
- MiniLinks (11): A Few Notes From the Grokster Argument
- Administrivia
Supreme Court Justices Grill Both Sides at Copyright Hearing
MGM v. Grokster Raises Questions About Innovation and Litigation
Washington, DC - EFF was heartened to hear the Justices of the United States Supreme Court engage in a lively debate Tuesday about whether technology manufacturers should be held liable for the infringing activities of consumers. At stake is nothing less than the future of innovation in the United States. If vendors are held responsible for what people do with their products, even tech giants like Intel say they'd have to fire engineers and hire lawyers.
MGM and nearly a dozen other entertainment companies argued that peer-to-peer software makers Grokster and StreamCast had built their businesses by distributing "infringing machines." But counsel for the entertainment industry, Donald Verrilli Jr. of the law firm Jenner & Block, scarcely finished his opening statements before the Justices interrupted with pointed questions about how his arguments would impact technological innovation. Justice Antonin Scalia asked how the industry would protect nascent technologies from "out-of-the-box lawsuits," and Justice Stephen Breyer pushed him to explain why MGM's argument wouldn't also apply to the iPod, Xerox machines, and even Gutenberg's printing press.
Richard Taranto of the law firm Farr & Taranto, who represented respondents Grokster, Ltd., and StreamCast Networks, Inc., replied that it was crucial for the Court to reaffirm its 20-year-old Betamax ruling, which held that companies should not be barred from selling products that may be used for copyright infringement if there is a potential for significant legal uses. Taranto also pointed out some of the many noninfringing uses for peer-to-peer software, including genomics research, archiving works in the public domain, and distributing new media whose creators use open copyright or Creative Commons licenses.
"The Justices asked all the right questions," said EFF Senior Staff Attorney Fred von Lohmann, lead attorney for StreamCast. "They were clearly worried about how this ruling would affect the future of technological invention. As Justice David Souter said, we shouldn't hang a sword of Damocles over the heads of America's innovators."
The Court will likely issue a decision in late June or early July.
For this release: http://www.eff.org/news/archives/2005_03.php#003481
More about MGM v. Grokster: http://www.eff.org/IP/P2P/MGM_v_Grokster/
Deep Links: "Justices Ask the Right Questions in MGM v. Grokster": http://www.eff.org/deeplinks/archives/003471.php
New US Passports Will Serve as Terrorist Beacons
The US State Department is pushing for what may be the most misguided and dangerous travel "security" plan ever proposed: putting insecure radio-frequency identification (RFID) chips in all new US passports. These chips would broadcast your name, date of birth, nationality, unique passport number, and any other personal information contained in the passport to anyone with a compatible RFID reader. That's right - anyone, not just passport control.
"The upshot of this is that travelers carrying around RFID passports are broadcasting their identity," observes security expert Bruce Schneier. "It means that anyone with a reader can learn that information, without the passport holder's knowledge or consent. It means that pickpockets, kidnappers, and terrorists can easily - and surreptitiously - pick Americans or nationals of other participating countries out of a crowd."
Astonishingly, the State Department proposal abandons even the most fundamental security protections. Why broadcast passport data at all? With machine-readable travel documents that require physical contact between passport and reader, you can rest assured that your passport will only be read when you intend to show it, eliminating any risk of surreptitious reading. But the State Department isn't only endorsing contactless RFID technology for passports - it wants to broadcast your personal information *in the clear.* In other words, it wants to use digital signatures for authentication, but doesn't want to encrypt or otherwise protect passport data, claiming that the information isn't worth protecting and that encryption would interfere with "global interoperability."
This is especially disturbing in light of the fact that safer options are readily available; the government already uses a line-of-sight LaserCard optical memory card that can't be read from your wallet or purse for multiple-entry visa Border Control Cards ("LaserVisas").
Privacy advocate Bill Scannell calls RFID-embedded passports "terrorist beacons" - and that's precisely what they'll become if we allow the State Department to move ahead with this plan. The Department is soliciting the public's input on the new passports, and the time to act is now - the deadline for submitting comments is this coming Monday, April 4. Follow the links below to learn more and submit your comments today:
US State Department Notice of Proposed Rule Making: http://www.eff.org/cgi/tiny?urlID=436 (Federal Register; please note that all comments must include the Regulatory Identification Number, RIN 1400-AB93, in the message subject line.)
Bruce Schneier: "RFID Passports": http://www.schneier.com/blog/archives/2004/10/rfid_passports.html
Bill Scannell's website: "RFID Kills": http://www.rfidkills.com
Edward Hasbrouck: "Deadlines Loom for RFID Tracking Chips in USA Passports": http://hasbrouck.org/blog/archives/000542.html
It's Official: TSA Lied
Two government reports confirm what EFF and other privacy advocacy organizations have long known: the Transportation Security Administration (TSA) lied about its role in using airline passengers as guinea pigs for testing "Secure Flight" - the latest version of a fundamentally flawed passenger-profiling system for screening terrorists. And not only did TSA lie, it lied repeatedly, to everyone.
A Department of Homeland Security (DHS) report, released this past Friday, reveals that TSA misled individuals, the press, and Congress in 2003 and 2004. A General Accounting Office (GAO) report, released Monday, also shows that Secure Flight has failed to meet 9 out 10 conditions the GAO set for giving the program the go-ahead. These conditions include providing adequate protection for passengers' privacy and ensuring the accuracy of the data it would use to classify people as terrorist risks.
Passenger records contain detailed personal information, such as your name, address, phone number, travel itinerary -- even your credit card number. Yet the DHS report says TSA shared passenger information with outside contractors while neglecting to "inquire whether the data used by the vendors had been returned or destroyed."
"This is worse than ChoicePoint," says EFF Senior Privacy Attorney Lee Tien. "It reflects an attitude toward the privacy of Americans that falls well below what people are up in arms about in the commercial data industry. These people have a public trust and they're abusing it."
[Note: This report was corrected to distinguish between two separate reports on Secure Flight.]
The DHS report: http://www.dhs.gov/interweb/assetlibrary/OIGr-05-12_Mar05.pdf
The GAO report: http://www.gao.gov/new.items/d05356.pdf
Bruce Schneier: "GAO's Report on Secure Flight": http://www.schneier.com/blog/archives/2005/03/gaos_report_on.html
Background on TSA's attempts to cover up its collection and use of private travel information: http://www.eff.org/effector/17/15.php#II
miniLinks
miniLinks features noteworthy news items from around the Internet.
Justices Like the Look of Brand X?
According to this report, the Supreme Court appeared
open to the idea that cable monopolies shouldn't close
their networks to independent Internet service providers:
http://www.law.com/jsp/article.jsp?id=1112090710340
FCC Leaving No Monopoly Behind
Only days before the Supreme Court reviewed the FCC's
position vis-a-vis cable monopolies, the Commission
blocked several states from requiring that telephone
companies allow competition on DSL lines:
http://news.com.com/2100-1034_3-5637790.html
A Few Notes From the Grokster Argument
DC appellate attorney/Harvard LLM student Timothy
Armstrong's detailed notes and reflections on the
day's arguments:
http://blogs.law.harvard.edu/tka/2005/03/29#a53
Who's That Guy?
Linda Greenhouse reports on the oral arguments for The
New York Times, highlighting the Court's concern
for the future innovator - or as Justice David Souter
called him, the "guy sitting in his garage inventing
the iPod":
http://www.nytimes.com/2005/03/29/technology/30bizcourtcnd.html
(Registration unfortunately required.)
Supreme Court Campout
This Wired.com article has some great pictures of people
camping out on the Supreme Court's steps before the
oral arguments in the Grokster case:
http://www.wired.com/news/digiwood/0,1412,67060,00.html
California's Civil War
The LA Times with a great editorial that captures the rift
between Hollywood and Silicon Valley over the issues in
the Grokster case:
http://www.eff.org/cgi/tiny?urlID=437
(Registration unfortunately required.)
FL Election Officials Battling Over Machines
Choice quote: "People in Leon County would rather vote on
paper than on vapor":
http://www.tallahassee.com/mld/tallahassee/11262592.htm
Brazil Opens Up
Great NYT piece about the role open-source software
plays in Brazil's effort to connect millions of its
citizens:
http://www.nytimes.com/2005/03/29/technology/29computer.html
(Registration unfortunately required.)
Who Are You Calling a Journalist?
David Shaw of the LA Times makes an incoherent argument
about why bloggers shouldn't get the same protections
as traditional journalists; Slate's Jack Shafer offers
a rebuttal:
http://www.eff.org/cgi/tiny?urlID=438
(LA Times; reg. unfortunately req.)
http://slate.msn.com/id/2115883/
Alleged Spammer Goes Belly-Up
OptInRealBig.com, a Colorado company that sends 15 million
email messages a day, has been forced into bankruptcy:
http://www.denverpost.com/Stories/0,1413,36~32540~2786931,00.htm
Banks Forced to Come Clean on Privacy Gaffes
Federal finance agencies have issued new rules that force
banks to notify customers when their private information
has been exposed. That seems obvious - right, TSA?
http://news.com.com/2100-7348_3-5635399.html
Administrivia
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