EFFector Vol. 20, No. 39 October 3, 2007 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 443rd Issue of EFFector:
- Telecoms Want Amnesty for Lawbreaking: Roundup of Internet Coverage
- Write a Letter to the Editor to Stop Telco Amnesty!
- Justice Department Withholds Records of Stealth Campaign to Block Surveillance Suits
- Goldsmith Testimony on the Secret Warrantless Surveillance Program
- Parts of FISA Held Unconstitutional
- "Secure Flight" Returns, Lacking Privacy Protections
- Judge Voids Election Because of E-Voting Snafus
- ThePudding.com Turns Your VoIP Calls Into Ad-Serving Keywords
- Court Defends honest Discussion of Proposed Trademark in Freecycle v. Oey
- Google Associate General Counsel to Speak at EFF October 10 Bootcamp and Google to Offer Scholarships
- Basics on EFF's Web 2.0 Compliance Bootcamp
- Vote for EFF on the Working Assets 2007 Donations Ballot!
- EFF Seeks Intellectual Property Staff Attorney
- miniLinks (11): Dems Ask Telcos Spying Questions
- 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. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Telecoms Want Amnesty for Lawbreaking A Roundup of Coverage from Around the Internet Right now, high-powered lobbyists for the giant telecom companies are descending on Capitol Hill to lobby Congress. Their aim: to secure amnesty for their clients, insulating them from liability for breaking the law in connection with the NSA's illegal warrantless wiretapping program. Clearly, EFF's case against AT&T is in their crosshairs. Considering the urgency of the issue, mainstream media coverage has been surprisingly spotty and incomplete. But there are some excellent updates and analysis from bloggers and news sources that have been doggedly covering the facts as they come in. Here are a few of our picks: For Aziz Huq's analysis in the Nation, "Protecting the Wiretappers": http://www.thenation.com/doc/20071015/huq Read Glenn Greenwald's commentary at Salon, "Former Clinton officials lobby for amnesty for FISA lawbreaking": http://www.salon.com/opinion/greenwald/2007/09/22/telecom_immunity/index.html See Art Levine's Huffington Post report, "10 Days Left to Stop the Dems from Caving on FISA": http://www.huffingtonpost.com/art-levine/10-days-left-to-stop-the-_b_65884.html For Matt Stoller's Open Left commentary, "New Train Wreck Coming on FISA": http://openleft.com/showDiary.do?diaryId=1566 Check out the ACLU's FISA fact sheet: http://www.aclu.org/safefree/general/31879prs20070920.html For this post and related links: http://www.eff.org/deeplinks/archives/005465.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Write a Letter to the Editor to Stop Telco Amnesty! Your emails and phone calls have made an impact this week, as EFF and a coalition of civil liberties organizations succeeded in delaying key congressional committee meetings about revisions to the unpopular Protect America Act passed in August. We may have dodged a bullet, but only for the moment. Despite the delay, key Congressional members are still gambling with your constitutional rights, bargaining in secretive deals with the Bush administration and high- powered telecom lobbyists. These efforts are a direct attempt to derail EFF's case against AT&T -- the phone companies want Congress to bless them with amnesty for violating their customers' privacy when they allowed the National Security Agency (NSA) to spy on their customers' phone calls and Internet communications. We need to get the word out, and we need your help. Write to your local newspaper, blog or community website, and fight the latest round of shameful behavior by Congress and the telcos by taking the news to the public. Here are some important points to make: * Congress shouldn't let the phone companies off the hook. When individuals break the law, they must stand up to their mistakes in court. Why should the telcos be able to buy their way out of the American system of justice? * Congress should stop warrantless surveillance of ordinary Americans. Your senators and district representative must stop the NSA's domestic spying, repeal the "Protect America Act," and ensure that whenever a U.S. person is surveilled, the government must first get a warrant. * Congress shouldn't legislate in the dark. Your senators and district representative should oppose any expansion of spying authority until a full, thorough, and public investigation is complete. August 20, 2007 was the deadline for the Bush administration to explain the warrantless wiretapping program to the Senate Judiciary Committee. More than a month later, the Administration is still stonewalling, yet the Senate is currently rushing to produce new spying legislation. For a list of your local media: http://www.congress.org/congressorg/dbq/media/ When submitting a letter to the editor, be sure to include your name, address and phone number so the newspaper, blog or community website can contact you for verification, and do your best to follow any guidelines on word count while still making a thorough and clear argument. Until the end of October, you can opt to send your completed draft to letterhelp@eff.org. We'll do our best to proofread the letter and make sure that you've got the main points. Naturally, this is completely optional -- feel free to send your letter directly to your local newspaper, blog or community website. Consider looking at the following resources for facts and inspiration: EFF's "Telecoms Want Amnesty for Lawbreaking Roundup" Deeplink (above): http://www.eff.org/deeplinks/archives/005465.php Newsweek's article on secretive telco lobbying: http://www.msnbc.msn.com/id/20884696/site/newsweek/ Read more on EFF's case against AT&T: http://www.eff.org/legal/cases/att : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Justice Department Withholds Records of Stealth Campaign to Block Surveillance Suits EFF Lawsuit Demands Information About Telecom Industry Lobbying Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit against the Department of Justice (DOJ) Thursday, demanding any records of a telecom industry lobbying campaign to block lawsuits over their compliance with illegal electronic surveillance. EFF's lawsuit comes as Congress debates letting telecommunications companies off scot-free as part of the hotly disputed "modernization" of the Foreign Intelligence Surveillance Act (FISA). 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 domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government. The government has intervened and moved for dismissal of many of these lawsuits. The DOJ has also pushed for changes to federal law that would ensure the telecoms are not held responsible for their role in the warrantless surveillance. Meanwhile, the DOJ has not responded to EFF's Freedom of Information Act (FOIA) requests to disclose records concerning any lobbying activities regarding potential immunity for the telecom industry. "The White House is publicly calling for immunity for the telecoms, while a recent Newsweek article detailed a 'secretive lobbying campaign' to block the lawsuits," said EFF Staff Attorney Marcia Hofmann. "If there are backroom deals going on at the Department of Justice, then Americans need to know about them now, before Congress passes any law that gets the telecom companies off the hook." The Department of Justice has already agreed that the records should be disclosed quickly because of the urgent need to inform the public about these issues. However, despite this recognition, DOJ has neither processed the FOIA requests nor told EFF when the documents might be released. EFF's suit asks for the immediate disclosure of the telecom lobbying records, including any documents concerning briefings, discussions, or other contacts DOJ officials have had with representatives of telecommunications companies. The suit also asks for records of contact between the DOJ and members of Congress about telecom immunity. "Our lawsuit and others allege serious privacy law violations that impact millions of ordinary Americans," said EFF Senior Staff Attorney Kurt Opsahl. "If the telecoms are seeking amnesty for their illegal activity, Americans deserve to know why and how lobbyists pressured the DOJ." For the full complaint: http://www.eff.org/flag/fisa_lobbying/092707_complaint.pdf For more on EFF's FOIA work: http://www.eff.org/flag For this release: http://www.eff.org/news/archives/2007_09.php#005463 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Goldsmith Testimony on the Secret Warrantless Surveillance Program The Associated Press, the Washington Post and Wired's Threat Level are reporting on testimony by Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel. Goldsmith testified that there were certain aspects of the warrantless surveillance program "that I could not find the legal support for," describing the basis as "a legal mess ... it was the biggest mess I encountered there." Read Pamela Hess' AP report, "Legality of Eavesdropping Questioned: http://ap.google.com/article/ALeqM5hXoHcrFTHYJIBdn8qMLn4oWNEPuAD8S16D2O0 See Dan Eggan's Washington Post article, "Justice Official: Details of Surveillance Program Tightly Guarded": http://www.washingtonpost.com/wp-dyn/content/article/2007/10/02/AR2007100201083.html For Ryan Singel's Wired Threat Level post, "Former DOJ Lawyer Couldn't Find Way to Legalize Bush Spying Program": http://blog.wired.com/27bstroke6/2007/10/former-doj-lawy.html For this post: http://www.eff.org/deeplinks/archives/005466.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Parts of FISA Held Unconstitutional Last Wednesday, Judge Ann Aiken of the Oregon Federal District Court ruled that two provisions of the Foreign Intelligence Surveillance Act (FISA), "50 U.S.C. ยงยง 1804 and 1823, as amended by the USA PATRIOT Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution." This case arose over warrantless surveillance of an innocent Oregon attorney who was falsely suspected of involvement with the Madrid train bombing based on mistaken fingerprint identification. The critical legal issue was that in the Patriot Act, Congress amended FISA to change the language from requiring "the purpose" of the search or surveillance be to obtain foreign intelligence information to only "a significant purpose" of the search or surveillance. As EFF has previously explained in a case before the Foreign Intelligence Surveillance Court of Review, a "long line of court of appeals decisions, before and after FISA, has held that surveillance may be conducted without a traditional warrant and probable cause only when foreign intelligence collection is the 'primary purpose' of the surveillance," not merely a "significant purpose." Read the opinion: http://www.ord.uscourts.gov/rulings/04-cv-1427Opinion.pdf For this post: http://www.eff.org/deeplinks/archives/005461.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * "Secure Flight" Returns, Lacking Privacy Protections Last week, EFF filed comments on two of the privacy-related documents released to the public by the Department of Homeland Security (DHS). The DHS documents outlined the Transportation Security Administration (TSA)'s intent to exempt key data collection from the protections of the Privacy Act in its Secure Flight program. Secure Flight is the system that the TSA plans to roll out in 2008 for all air flights. It will allow the DHS to collect the passenger records you are obliged to hand over to airlines when you travel and then connect that personal data with other government databases within the DHS and elsewhere. Secure Flight has had a long and ignoble history, with frequent protests from both Congress and privacy groups, leading to its postponement in 2006. In these new documents, the DHS still seeks to exempt Secure Flight from the protections of US privacy law. Individuals will be prevented from discovering what data is kept on them, will not be able to correct that data, and will not be able to go to a court to force data to be corrected if the DHS refuses. Read EFF's comments: http://eff.org/Privacy/travel/092407_secure_flight_comments.pdf Read the highlights from Secretary of U.S. Department of Homeland Security Michael Chertoff's keynote address at Terra Incognita: the annual conference of Data Protection and Privacy Commissioners, in Montreal: http://www.eff.org/deeplinks/archives/005460.php For background, see EFF's Travel Screening page: http://www.eff.org/Privacy/travel/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Judge Voids Election Because of E-Voting Snafus Good news from California's Alameda County -- a judge has voided election results after the county botched its response to a contested race conducted on Diebold electronic voting machines. The judge ordered that the disputed Measure R -- an initiative addressing the operation of medical marijuana dispensaries -- go back on next year's ballot. Measure R lost by fewer than 200 votes in the 2004 election, and Americans for Safe Access and voters in the city of Berkeley brought a legal challenge seeking a recount. But while the lawsuit was ongoing, election officials returned the voting machines to supplier Diebold Election Systems, and 96% of the detailed audit information from the election was destroyed. EFF helped analyze the remaining data, but, as the judge recognized, it was impossible to tell if the tallies reported on election night were correct. The news is good in California, but serious reforms are needed nationwide, including a voter-verified paper trail and mandatory random audits. Contact your representative today and voice your support for H.R. 811, the Voter Confidence and Increased Accessibility Act of 2007: http://action.eff.org/site/Advocacy?id=109 Read more about EFF's E-voting work: http://www.eff.org/Activism/E-voting/ For the complete post and related links: http://www.eff.org/deeplinks/archives/005464.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * ThePudding.com Turns Your VoIP Calls Into Ad-Serving keywords The Associated Press reports on the beta website ThePudding.com, which is offering users "free" voice over IP (VoIP) calls, with an invasive catch -- it uses voice- recognition software to serve you ads based on the conversation you're having. Perhaps the most chilling implication of this "service" is its potential impact on your constitutional right to privacy in your phone calls. Fourth Amendment protections against government eavesdropping rely on your having a "reasonable expectation of privacy" in your calls, something you'll arguably be trading away by using ThePudding.com's VoIP service. The government can and likely will argue -- as it has argued when it comes to your Gmail in the case of U.S. v. Warshak -- that allowing a company to scan your communications for ad-serving purposes eliminates any Fourth Amendment privacy protections in those communications. Far from being "free," you may be paying for ThePudding.com's service with your constitutional rights. For the AP report, "New Service Eavesdrops on Internet Calls": http://biz.yahoo.com/ap/070924/ads_that_listen.html Read EFF Activist Richard Esguerra's complete post: http://www.eff.org/deeplinks/archives/005458.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Court Defends Honest Discussion of Proposed Trademark in Freecycle v. Oey EFF welcomes a victory for online free speech in Freecycle v. Oey, a case from the Ninth Circuit Court of Appeals upholding the right to engage in open discussion about words companies are trying to trademark without the fear of being sued. EFF signed onto the amicus brief written by Stanford Law Professor Mark Lemley arguing that such discussions were not trademark violations. The Freecycle Network Inc. (TFN), operates freecycle.org, a hub site for localized groups of people seeking a quick and easy way to give and receive stuff for free. TFN filed a federal trademark application for the term "freecycle." Tim Oey, once involved with TFN, took to the Internet to urge people to oppose TFN's effort to trademark the term, arguing that freecycling should be a grassroots movement. TFN sued to squelch Oey's speech and moved for a court injunction prohibiting him from expressing his opinions. TFN argued that he had infringed and disparaged its trademark and managed to convince a district court judge in Arizona to grant the injunction. On appeal, however, the Ninth Circuit ruled that Oey's honest opinion about Freecycle's trademark rights could not be stamped out by a claim of trademark infringement under the Lanham Act. Read our full analysis of the decision here: http://www.eff.org/deeplinks/archives/005462.php Download the opinion in Freecycle v. Oey: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/77FC32035139985C882573610078DF4B/$file/0616219.pdf?openelement : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Google Associate General Counsel to Speak at EFF October 10 Bootcamp and Google to Offer Scholarships Great news! Google Associate General Counsel Alex MacGillivray has agreed to attend the EFF Compliance Bootcamp and to explain why Google thinks it is important that Web 2.0 companies learn the information we're teaching. Find out more here: http://www.eff.org/bootcamp/ Additionally, Google has generously offered funding for scholarships for approximately 20 additional individuals to attend the Bootcamp. To apply, submit one paragraph to us at Bootcamp@eff.org explaining: 1) Why you would like to attend the Bootcamp, and 2) Why you need a scholarship in order to attend. We will review them and choose the scholarship recipients on Monday October 8. Thanks Google! For this post: http://www.eff.org/deeplinks/archives/005469.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Basics on EFF's Web 2.0 Compliance Bootcamp Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value and still fulfills your legal obligations? EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding Internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or to take it down, or whether to give their customer's name to the FBI agent on the phone. Let us help. Topic areas include: * Defamation, harassment, and other accusations of bad behavior; * Fair use, free culture, and the right to remix; * Copyright takedowns and put-backs: understanding the Digital Millennium Copyright Act; * Responding to cops, crooks, and courts who want your customers' communications and other private information; * Avoiding becoming the next Napster and staying on the safe side of the Copyright Wars; * The rights of anonymous speakers; * Porn, predators, and the pressure to police; and * Lightning rounds on Creative Commons licenses, webcasting and what to do when you've been hacked. Who should attend: People who do front-line or mid-level work for companies and projects that rely on user-generated content and communications. This includes compliance, customer service and community management workers. Why: In the past year or so, we've met with several Web 2.0 companies, sometimes before -- and sometimes after -- embarrassing incidents when they found themselves out of step with their communities or the law. We'd like to give the people who make these important initial decisions the tools they need to do the right thing by their companies and their customers. Where: Fenwick and West Silicon Valley Center Mountain View, California When: Wednesday, October 10, 2007 How much: Sliding scale of $100-200 per person. Space is limited, so sign up soon. Email: bootcamp@eff.org. For EFF's Bootcamp page: http://www.eff.org/bootcamp For this post: http://www.eff.org/deeplinks/archives/005444.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Vote for EFF on the Working Assets 2007 Donations Ballot! A telecommunications company supports EFF! That's right. You heard us correctly. The good folks at Working Assets are continuing to do their part to make our world a better place by generously supporting EFF as a recipient in their 2007 end-of-year donation campaign. Are you or your friends Working Assets customers who rounded up your phone bill all year? Well it's time to spread the love. When you fill out your Working Assets 2007 Donations Ballot, vote to allocate this year's funding to EFF. The distribution of funds is determined solely by how many votes each group receives. The more votes you give EFF, the more money we get. It's that simple. Just go to: http://www.WorkingAssets.com/vote The voting deadline is December 31, so act quickly! : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EFF Seeks Intellectual Property Staff Attorney We're hiring! EFF is seeking an intellectual property staff attorney for its legal team. Responsibilities will include litigation, public speaking, media outreach, plus legislative and regulatory advocacy, all in connection with a variety of intellectual property and high technology matters. Qualified candidates should have at least four years of legal experience, with knowledge in patent law and at least one other IP specialty (copyright, trademark, trade secret). Litigation experience is preferred, including significant experience managing cases, both overall case strategy and day-to-day projects and deadlines. Candidates should have good communication skills and interest in working with a team of highly motivated lawyers and activists in a hard-working nonprofit environment. Strong writing and analytical skills as well as the ability to be self-motivated and focused are essential. Tech savvy and familiarity with Internet civil liberties and high tech public interest issues preferred. This position is based in San Francisco. Interested applicants should submit a resume, writing sample, and references to: ipjob@eff.org. For this post: http://www.eff.org/deeplinks/archives/005441.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Dems Ask Telcos Spying Questions Top Democrats want to know what telcos did and when they did it. http://blog.wired.com/27bstroke6/2007/10/dems-ask-telcos.html ~ Internet Pioneer Bashes Telco "Amnesty" Plans Craigslist-founder Craig Newmark supports EFF's case against AT&T. http://www.cnewmark.com/2007/09/att-and-verizon.html ~ RIAA Gets Day in Court The recording industry's first copyright infringement jury trial is underway. http://arstechnica.com/news.ars/post/20071002-first-riaa-trial-gets-under-way-with-jury-selection.html ~ Virgin Digital out of Business DRM-laden music from Virgin is now obsolete and must be ripped to CD to be saved. http://www.virgindigital.co.uk/Message.aspx ~ Hollywood Goes After Two Piracy Sites The MPAA filed suit against two sites that it says enable piracy. http://www.news.com/Hollywood-studios-go-after-two-piracy-sites/2100-1030_3-6210566.html ~ EBay Seller Sues Autodesk for DMCA Takedown Can you sell a copy of software you bought at a garage sale on eBay? http://www.channelregister.co.uk/2007/09/15/lawyerless_autocad_selling_ebayer_sues_autodesk/ ~ Germans Rally for "Liberty Instead of Fear" Thousands rallied in Berlin against "surveillance madness." http://www.heise.de/english/newsticker/news/96460 ~ In Crackdown, Myanmar Junta Unplugs Internet The generals try to silence criticism by cutting off Internet and phone communications with the outside world. http://www.nytimes.com/2007/10/04/world/asia/04info.html?ex=1349150400&en=e92bd2559a1236be&ei=5090&partner=rssuserland&emc=rss ~ War Between Apple and Hackers Heats Up Apple's claim that unlocking your iPhone will result in an iBrick is being put to the test. http://www.theregister.co.uk/2007/10/03/iphone_update_response/ ~ Pay What You Want for New Radiohead The hugely popular band's new pricing policy shocked the music industry. http://ap.google.com/article/ALeqM5g6TXL-5qBlGqmy6aksw32SVnEmcgD8S1CNJ05 ~ Today's Public School Menu: Tater Tots and Finger Scans Should biometrics be part of your child's school lunch? http://www.time.com/time/business/article/0,8599,1665119,00.html : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * 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.
