EFFector Vol. 20, No. 25 June 25, 2007 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 429th Issue of EFFector:
- Ten Years After ACLU v. Reno: Free Speech Still Needs Defending
- Action Alert - Stop the National ID Expansion!
- Dangerous Ruling Forces Search Engine to Log Users
- Congress Set to Uncover Truth About NSA Spying Program
- Travelers Deserve Protection from Baseless Laptop Searches
- Blogging WIPO: Broadcasting Treaty Deferred Indefinitely
- DVD Home Media Server, We Hardly Knew You
- Viacom Nets, Releases Another Fair Use Dolphin
- miniLinks (14): Former FISA Judge Criticizes Wiretap Program
- Administrivia
For more information on EFF activities & alerts: http://www.eff.org/ Make a donation and become an EFF member today! http://eff.org/support/ Tell a friend about EFF: http://action.eff.org/site/Ecard?ecard_id=1061 effector: n, Computer Sci. A device for producing a desired change. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Ten Years After ACLU v. Reno: Free Speech Still Needs Defending Online free speech faces many threats today, but the Internet's incredible abundance and variety of expression might never have blossomed to begin with if the first major court battle had gone the wrong way. Tuesday marks the ten-year anniversary of the U.S. Supreme Court's landmark decision in Reno v. ACLU, which recognized that free speech on the Internet merits the highest standards of Constitutional protection. EFF participated as both plaintiff and co-counsel in the case, which successfully challenged the online censorship provisions of the Communications Decency Act (CDA) of 1996. The Court's decision -- its first involving the Internet -- was issued on June 26, 1997. The CDA fight was one of the first big rallying points for online freedom. When the law passed, thousands of websites turned their backgrounds black in protest. EFF launched its "blue ribbon" campaign and millions of websites around the world joined in support of free speech online. Even today, you can find the blue ribbon throughout the Web. EFF Senior Counsel David Sobel, who served as co-counsel in the case, notes: "The Reno decision defined the First Amendment for the 21st century. The Court wrote on a clean slate and established the fundamental principles that govern free speech issues in the electronic age." EFF's work over the past ten years demonstrates that while the technology might evolve, threats to online expression persist and core First Amendment principles must be vigilantly defended. The CDA was a crystal clear case of unconstitutional government censorship, and the challenges today are sometimes more complex. EFF's efforts today include: * Intermediaries: EFF fights to protect Internet middlemen -- like hosting services, search engines, and ISPs -- from overreaching liability, so that creators of amazing free speech tools don't have to worry about being held responsible for everything that Internet users say. * "Fair Use": EFF defends "fair use" of copyrighted material, including its ongoing campaign to counter bogus copyright takedowns on YouTube and elsewhere. * Bloggers' Rights: EFF promotes bloggers' rights through litigation and distribution of a comprehensive legal guide. * Anonymous speech: EFF supports online anonymity, primarily through representation of defendants in "John Doe" lawsuits filed by large corporations and thin-skinned public officials who want to intimidate their anonymous critics. * "Right to Know": EFF uses the Freedom of Information Act to promote the public's "right to know" and facilitate informed and open debate on technology and civil liberties issues. The fight against direct government censorship of online speech continues, too. EFF continues to participate in the pending litigation against the Children's Online Protection Act (COPA), a slightly narrower but still gravely dangerous version of the CDA that the Supreme Court has twice enjoined. While it can sometimes seem that there are more fronts than ever in the fight for free speech online, the battles we face today would be much, much harder without that first victory in ACLU v. Reno. With your help, we'll fight to make sure that ten years from now, we can look back and see how today's battles helped pave the way for an even better future online. For the Reno v. ACLU decision: http://www.eff.org/legal/cases/EFF_ACLU_v_DoJ/19970626_cda.decision For a news article on the "Turn the Web" black protest: http://www.wired.com/wired/archive/4.05/scans.html For the Blue Ribbon campaign: http://www.eff.org/br/ For this post and more related links: http://www.eff.org/deeplinks/archives/005335.php Support EFF and become a member today! http://www.eff.org/support/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Action Alert: Stop the National ID Expansion! Thousands of individuals and sixteen states have already told the federal government to dump the privacy-invasive REAL ID Act, which would standardize drivers' licenses into a national ID and create databases linking the records together. But instead of listening to the public, members of Congress are renewing their efforts to ram the unfunded mandate down everyone's throats. A provision smuggled into the major immigration reform bill would effectively force every American to present a standardized national ID in order to get a job and establish a huge "employment verification" system filled with personal information. The proposal is set for a floor vote next week -- call your Senator now to stop the national ID expansion: http://action.eff.org/site/Advocacy?id=303 This bill realizes one of our main fears about REAL ID -- once in place, uses of the IDs and database will inevitably expand to facilitate a wide range of tracking and surveillance activities. Remember, the Social Security number started innocuously enough, but it has become a prerequisite for a host of government services and been co- opted by private companies to create massive databases of personal information. The proposed employment verification system is bound to contain errors impacting millions of Americans, and, along with inevitable delays implementing REAL ID, that could present unnecessary hurdles when you apply for a job. The verification system would also make your private information more vulnerable to government misuse, security breaches, and identity theft. The more uses created for REAL ID, the harder it becomes to get the Act off the books entirely. Tell your Senators to fix this part of the immigration bill by supporting Senate Amendments 1236 and 1441: http://action.eff.org/site/Advocacy?id=303 To learn more about what's wrong with REAL ID, see EFF's issue page: http://www.eff.org/Privacy/ID/RealID/ For the ACLU's REAL ID webpage: http://www.realnightmare.org/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Dangerous Ruling Forces Search Engine to Log Users Public Interest Groups Urge Court to Block Radical Expansion of Discovery Rules San Francisco - The Electronic Frontier Foundation (EFF) and Center for Democracy and Technology (CDT) urged a California court Friday to overturn a dangerous ruling that would require an Internet search engine to create and store logs of its users' activities as part of electronic discovery obligations in a civil lawsuit. The ruling came in a copyright infringement lawsuit filed by motion picture studios against TorrentSpy, a popular search engine that indexes materials made publicly available via the Bit Torrent file sharing protocol. TorrentSpy has never logged its visitors' Internet Protocol (IP) addresses. Notwithstanding this explicit privacy policy, a federal magistrate judge has now ordered TorrentSpy to activate logging and turn the logged data over to the studios. "This unprecedented ruling has implications well beyond the file sharing context," said EFF Staff Attorney Corynne McSherry. "Giving litigants the power to rewrite their opponent's privacy policies poses a risk to all Internet users." The magistrate judge incorrectly reasoned that, because the IP addresses exist in the Random Access Memory (RAM) of TorrentSpy's webservers, they are "electronically stored information" that must be collected and turned over to the studios under the rules of federal discovery. This decision could reach every function carried out by a digital device. Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM. "In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information," said EFF Senior Staff Attorney Fred von Lohmann. "There is no reason why the rules should be different simply because a company uses digital technologies." The decision also threatens to radically increase the burdens that companies face in federal lawsuits, potentially forcing them to create and store an avalanche of data, including computer server logs, digital telephone conversations, and drafts of documents never saved or sent. The magistrate judge in the case has stayed her order while TorrentSpy appeals the ruling. The case is Columbia Pictures Industries v. Bunnell, No. 06-01093 FMC, pending in the U.S. District Court for the Central District of California before Judge Florence-Marie Cooper. Read the full amicus brief: http://www.eff.org/legal/cases/torrentspy/EFF_CDT_amicus.pdf For this post: http://www.eff.org/news/archives/2007_06.php#005334 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Congress Set to Uncover Truth About NSA Spying Program Vote to Authorize Subpoenas Sets Stage for Showdown Over Illegal Surveillance San Francisco - The Senate Judiciary Committee voted Thursday to authorize subpoenas related to the National Security Agency (NSA)'s domestic spying program, setting the stage for a Congressional showdown over the surveillance of millions of ordinary Americans. The subpoenas demand certain legal documents that the Administration has withheld despite repeated requests from Congress. "This subpoena authorization is a critical first step toward uncovering the full extent of the NSA's illegal spying and the role that telecommunications companies like AT&T played in it," said EFF Staff Attorney Kevin Bankston. "Considering that it's been almost six years since the NSA started spying on Americans without warrants and over a year since that spying was revealed publicly, these subpoenas are long overdue. It's high time for Congress to get to the bottom of this mess." The Electronic Frontier Foundation (EFF) is suing AT&T for illegally assisting in the NSA spying. The government has asked the 9th U.S. Circuit Court of Appeals to dismiss EFF's case, claiming that the lawsuit could expose state secrets. "Our case against AT&T includes evidence from a former employee that points to a massive spying program impacting millions of people -- a program far broader than the government has admitted to," said Bankston. "Americans deserve to know the truth about the NSA program." For more on EFF's class-action lawsuit against AT&T: http://www.eff.org/legal/cases/att/ For this post: http://www.eff.org/news/archives/2007_06.php#005329 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Travelers Deserve Protection from Baseless Laptop Searches EFF Urges Court to Protect Privacy at Border Crossings San Francisco - The government should not search travelers' computers at border crossings without suspicion, said the Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) in an amicus brief filed today in the 9th U.S. Circuit Court of Appeals. Over the past several years, U.S. Customs Agents have been searching and even seizing travelers' laptops when they are entering or leaving the country if the traveler fits a profile, appears to be on a government watch list, or is chosen for a random inspection. The Supreme Court has ruled that customs and border agents may perform "routine" searches at the border without a warrant or even reasonable suspicion, but EFF and ACTE argue that inspections of computers are far more invasive than flipping through a briefcase. "Our laptop computers contain vast amounts of personal information about our lives. You may do your banking on your computer, for example, or send email to your doctor about health concerns," said EFF Senior Staff Attorney Lee Tien. "Travelers should not be subjected to unconstitutionally invasive searches of their laptops and other electronic devices just because they are crossing the border." The case in front of the 9th Circuit, United States v. Arnold, arose out of a suspicionless "profile" search of Michael Timothy Arnold's computer at Los Angeles International Airport. The search uncovered evidence of alleged child pornography, and Mr. Arnold moved to suppress the evidence as the product of an unconstitutional search. The district court ruled that the agents lacked a reasonable basis to suspect Mr. Arnold of having committed a crime, and the government appealed the ruling. Mr. Arnold is represented by the Pasadena law firm of Kaye, McLane & Bednarski, LLP. The EFF-ACTE amicus brief was prepared by Arent Fox LLP. For the full amicus brief: http://www.eff.org/legal/cases/US_v_arnold/arnold_amicus.pdf For this post: http://www.eff.org/news/archives/2007_06.php#005324 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Blogging WIPO: Broadcasting Treaty Deferred Indefinitely Negotiations on the proposed WIPO Broadcasting Treaty ended in Geneva on Friday with some welcome news. WIPO Member States agreed to recommend that the WIPO General Assembly postpone the high-level intergovernmental Diplomatic Conference at which the draft treaty could have been adopted, and move discussions back to regular committee meetings, down a significant notch from the last two "Special Session" meetings. Apart from pulling the plug on a diplomatic conference that seemed doomed for failure, Friday's decision also provides a much-needed opportunity for WIPO to start focusing on other initiatives, such as facilitating access to knowledge, evaluating the impact of legally-enforced technological protection measures on exceptions and limitations, and Chile's 2004 proposal for mandatory exceptions and limitations to copyright law for education, the disabled and libraries and archives. Read EFF's briefing paper on the latest treaty draft: http://www.eff.org/IP/WIPO/broadcasting_treaty/EFF_wipo_briefing_paper_062007.pdf Read the Open Letter to WIPO: http://dearwipo.com/ For EFF's WIPO Broadcasting Treaty page: http://www.eff.org/IP/WIPO/broadcasting_treaty/ For the entire update and related links: http://www.eff.org/deeplinks/archives/005333.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * DVD Home Media Server, We Hardly Knew You In April, a California court ruled that Kaleidescape did not violate its contract with the DVD Copy Control Association (DVD CCA) by distributing a device that rips and plays DVDs. But now the DRM licensing authority, which is mostly controlled by movie studios, is planning to change the contract and more clearly forbid DVD ripping. Make no mistake: the VCR, TiVo, iPod, and myriad other technologies could have faced Kaleidescape's fate if the entertainment industry had been able to infect TV and music with DRM sooner. This is also the fate that awaits all future television technologies if DRM is baked in thanks to the broadcast flag and CableCARD. For EFF's Broadcast Flag page: http://www.eff.org/IP/broadcastflag/ For EFF's page on DRM for Digital Cable and Satellite http://www.eff.org/IP/pnp/ Read the complete post: http://www.eff.org/deeplinks/archives/005330.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Sony Disconnects In May 2004, Sony opened up its own store for selling digital music: Sony Connect. From the start, the service was plagued with self-inflicted woes. Thanks to Sony's use of DRM and a proprietary music format (ATRAC), music bought through Sony Connect could only be played on Sony's expensive digital music players. And those devices came loaded with software that was awkward and hard to use. Not surprisingly, Sony is rumored to be pulling the plug on Sony Disconnect, or at least downsizing it. In any case, the problems of Sony's premiere music service make a point that deserves emphasis: customers don't like having their options limited and being herded into using poorly designed technology. Of course, these dangers exist whenever you buy DRMed music from any vendor. You're locked into the limited array of players that the DRM is compatible with, and, if that DRM some day is entirely unsupported, you're out of luck. Read EFF Activist Hugh D'Andrade's complete analysis and related links: http://www.eff.org/deeplinks/archives/005328.php For EFF's "The Customer Is Always Wrong: A User's Guide to DRM in Online Music": http://www.eff.org/IP/DRM/guide/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Viacom Nets, Releases Another Fair Use Dolphin When a company like Viacom sends more than 160,000 DMCA takedown notices to YouTube, there is a risk that some fair use "dolphins" will get caught along with the infringing "tuna." Well, another "dolphin" got caught up in the DMCA takedown driftnet. Last week, Paramount Pictures (a unit of Viacom) apparently sent a DMCA takedown notice to YouTube, resulting in the removal of the hugely popular video "10 Things I Hate About Commandments," an example of the new genre of movie trailer mashups that has blossomed on YouTube. So after the creators contacted EFF, we urged them to test out the "dolphin hotline," which Viacom created after getting into hot water for mistakenly taking down MoveOn.org's "Stop the Falsiness" video. Find out what happened in EFF Staff Attorney Fred von Lohmann's complete post: http://www.eff.org/deeplinks/archives/005327.php Watch the video "10 Things I Hate About Commandments" on YouTube: http://www.youtube.com/watch?v=u1kqqMXWEFs Read more about EFF's lawsuit against Viacom: http://www.eff.org/legal/cases/moveon_v_viacom/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Former FISA Judge Criticizes Wiretap Program Judge Lamberth says "you can't trust the executive." http://www.nytimes.com/2007/06/24/washington/24judge.html?ex=1340337600&en=17176b6b4f93cc82&ei=5090&partner=rssuserland&emc=rss ~ Video of Judge Lamberth's speech: http://www.ala.org/ala/washoff/washevents/woannual/annualconfwo.cfm ~ Justice Dept. vs. States on Phone Privacy Can the feds stop states from investigating whether telcos helped the NSA spy on Americans? http://www.latimes.com/news/printedition/asection/la-na-tap21jun21,1,7897952.story?coll=la-news-a_section ~ Google Transparency Google's new Public Policy Blog discusses... Google's Public Policy! http://googlepublicpolicy.blogspot.com/ ~ Google Asks Government to Fight Censorship Are free speech restrictions also trade barriers? http://www.examiner.com/a-794215%7EGoogle_Asks_Gov_t_to_Fight_Censorship.html ~ DRM-Free Sales Boom EMI reports that sales of some albums are up as much as 350% now that MP3 tracks without DRM are available. http://www.theinquirer.net/default.aspx?article=40443 ~ DRM Rises from the Dead The Blu-ray Disc Association is promoting the use of DRM on DVDs. http://www.engadgethd.com/2007/06/20/bd-drm-is-now-available-for-blu-ray ~ Googling for Downloads Music downloaders are circumventing P2P restrictions at universities by using Google instead. http://www.slyck.com/news.php?story=1507 ~ iPhone Lowdown Preventng iPhone owners from installing software may hurt their privacy. http://www.educatedguesswork.org/movabletype/archives/2007/06/a_very_sweet_so.html ~ My Career as a TV Freeloader A Slate article describes how to tap into the neighbor's on-demand television. http://www.slate.com/id/2167389 ~ Censorship and the DMCA How console manufacturers can shut down games they don't like. http://www.techliberation.com/archives/042509.php ~ An Obituary for Weedshare A radical way to buy and share music that never took off. http://www.openbusiness.cc/2007/06/11/weedshare-rip/ ~ Vonage and Spam Vonage is harvesting names from their refer-a-friend program to send spam promotions. http://www.damniwish.com/2007/06/vonage-spams-cu.html ~ CAN-SPAM With Nifty Web App Mailinator enables you to retrieve email without providing any personal data. http://mailinator.com/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Administrivia EFFector is published by: The Electronic Frontier Foundation 454 Shotwell Street San Francisco CA 94110-1914 USA +1 415 436 9333 (voice) +1 415 436 9993 (fax) http://www.eff.org/ Editor: Julie Lindner, Education Outreach Coordinator julie@eff.org Membership & donation queries: membership@eff.org General EFF, legal, policy, or online resources queries: information@eff.org Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements & articles may be reproduced individually at will. Current and back issues of EFFector are available via the Web at: http://www.eff.org/effector/ Click here to change your email address: http://action.eff.org/addresschange This newsletter is printed on 100% recycled electrons.
