EFFector       Vol. 14, No. 39       Dec. 17, 2001     editors@eff.org 
                                                                       
A Publication of the Electronic Frontier Foundation     ISSN 1062-9424 
                                                                       
IN THE 199TH ISSUE OF EFFECTOR:

  * Government Agrees to Defer Prosecution of Dmitry Sklyarov
  * California Court Decides E-mail Pamphleteer Case
  * NY Court Rules Online Coverage Protected Speech
  * USAPA Sunset Provisions Could Leave Congress in the Dark
  * Support EFF This Holiday Season!
  * Please Resubmit Nominations for the EFF Pioneer Awards
  * DMCA Slogan Contest - Help Protect the Intellectual Commons
  * Administrivia

For more information on EFF activities & alerts: http://www.eff.org/

To join EFF or make an additional donation:
  http://www.eff.org/support/
EFF is a member-supported nonprofit. Please sign up as a member today!

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GOVERNMENT AGREES TO DEFER PROSECUTION OF DMITRY SKLYAROV

RUSSIAN PROGRAMMER FREED, MUST TESTIFY AGAINST EMPLOYER

Electronic Frontier Foundation Media Release

For Immediate Release: Thursday, December 13, 2001

San Jose - U.S. Federal Court Judge Ronald Whyte today signed a court
agreement permitting Russian programmer Dmitry Sklyarov to return to
his native land after a five-month enforced stay in the U.S. The
agreement should eventually clear him of all charges brought against
him for distributing software that permits electronic book owners to
convert the Adobe e-book format so they can make use of e-books without
access restrictions.

As part of the agreement, Sklyarov will testify for the government in
the case that remains against Elcomsoft, Sklyarov's employer. He will
likely testify on behalf of Elcomsoft as well.

"Dmitry programmed a format converter which has many legitimate uses,
including enabling the blind to hear e-books," explained EFF
Intellectual Property Attorney Robin Gross. "The idea that he faced
prison for this is outrageous."

"There was a tremendous outpouring of grassroots support for Dmitry and
against the current U.S. copyright law, and EFF is proud to have been
part of such a successful effort," stated EFF Executive Director Shari
Steele. "I'm disappointed, however, that the government has decided to
string this along instead of admitting its mistake in bringing these
charges against Dmitry in the first place."

EFF weakened the case against Sklyarov by negotiating with Adobe
representatives on July 20, 2001, resulting in a statement from Adobe
saying that the company no longer wished to pursue any case against
Sklyarov. EFF also met with representatives of the U.S. Department of
Justice for the Northern District of California on July 27 pursuing
negotiations aimed at dropping all charges against Sklyarov and
securing his immediate release from jail.

The 27-year-old programmer was arrested on July 16 and held in jail
until August 6, when he was released on $50,000 bail on condition he
remain in California.

Sklyarov, who has been living in San Mateo with his wife and two
children pending resolution of the case, has often expressed his
eagerness to return to Russia.

Sklyarov's case is the first time a programmer was jailed simply for
coding and distributing software. The software developer faced up to 25
years in prison under the Digital Millennium Copyright Act (DMCA) in
the first criminal prosecution brought under the controversial statute
which forbids distributing technology or information that can be
helpful in bypassing technological restrictions. The case is one of a
series of cases brought under the DMCA, a law many experts feel pushes
the balance of copyright law too far toward the companies holding the
copyrights and away from traditional fair use of copyrighted materials,
for example in research and education.

Links:

Documents related to the US v. Sklyarov case:
  http://www.eff.org/Cases/US_v_Sklyarov/

Contact:

    Robin Gross, EFF Intellectual Property Attorney
      robin@eff.org
      +1 415-637-5310

    Shari Steele, EFF Executive Director
      ssteele@eff.org
      +1 415-436-9333 x103

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CALIFORNIA COURT DECIDES E-MAIL PAMPLETEER CASE

YOU COULD BE SUED FOR SENDING UNWANTED E-MAIL

Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, December 11, 2001

Sacramento, California - A split California Court of Appeal decided
yesterday that companies can sue those who send unwanted e-mail to
their employees once the company warns them not to send more e-mail.

The case, called Intel v. Hamidi, arises from six e-mail messages sent
by Ken Hamidi during a two-year period to worldwide employees of Intel.
The messages admittedly did no harm to Intel's computer systems and
caused no delays in its computer services. Nonetheless, in a 34 page
opinion, the Third Appellate District Court in California ruled that
sending unwanted e-mails was an illegal "trespass."

"If left standing, this ruling effectively breaks the Internet," said
Cindy Cohn, Legal Director of the Electronic Frontier Foundation, which
submitted an amicus brief in the case. "Anyone who sends e-mail
messages after having been told not to could risk a lawsuit from
recipients."

"Mr. Hamidi is a high-tech pampleteer. An injunction preventing him
from sending his messages when those messages did not harm Intel's
computer system violates his First Amendment rights," added Ann Brick
of the ACLU of Northern California, who argued the case on behalf of
Hamidi. The ACLU also submitted an amicus brief in the case.

One of the judges dissented from the majority and, agreeing with the
ACLU and EFF, wrote:

"Under Intel's theory, even lovers' quarrels could turn into trespass
suits by reason of the receipt of unsolicited letters or calls from the
jilted lover. Imagine what happens after the angry lover tells her
fiancée not to call again and violently hangs up the phone. Fifteen
minutes later the phone rings. Her fiancée wishing to make up? No,
tresspass to chattel."

Links:

Documents related to the Intel v. Hamidi case:
  http://www.eff.org/Cases/Intel_v_Hamidi/

Hamidi's website:
  http://www.intelhamidi.com/

Former and Current Employees of Intel website:
  http://www.faceintel.com/

ACLU brief in Intel v. Hamidi case:
  http://www.aclunc.org/expression/intel-brief.html

About EFF:

The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
1990, EFF actively encourages and challenges industry and government to
support free expression, privacy, and openness in the information
society. EFF is a member-supported organization and maintains one of
the most linked-to Web sites in the world:
  http://www.eff.org/

Contact:

    Cindy Cohn, EFF Legal Director
      cindy@eff.org
      +1 415-436-9333 x108

    Ann Brick, Attorney, American Civil Liberties Union of Northern
    California
      abrick@aclunc.org
      +1 415-621-2493

    Lee Tien, EFF Senior First Amendment Attorney
      tien@eff.org
      +1 415-436-9333 x102

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NY COURT RULES ONLINE COVERAGE PROTECTED SPEECH

PRAISES ELECTRONIC FRONTIER FOUNDATION COURT BRIEF

Electronic Frontier Foundation Media Release

For Immediate Release: Monday, December 10, 2001

San Francisco - A New York state court agreed with the Electronic Frontier
Foundation (EFF) Dec. 5 that online journalists have the same First
Amendment protections as offline journalists.

The court dismissed a case seeking to hold Narconews.com liable for
defamation for its coverage of claims that the president of the
Banamex, the Bank of Mexico, was engaging in the drug trade.

"This court finds that Narco News is a media defendant and is entitled
to heightened protection under the First Amendment," the decision
states.

"We're pleased that the court flatly rejected attempts to treat
Internet reporters differently than reporters in the real world," said
EFF Legal Director Cindy Cohn.

The EFF had filed an amicus brief in support of Narconews.com in the
case brought by Banamex, referred to by the court decision.

"Banamex attempted to squash Narco News Bulletin's right to freely
report public interest news," commented Thomas Lesser, attorney for
Narconews.com. "By ruling that bare allegations alone cannot support a
defamation lawsuit, the judge properly dismissed the case outright,
recognizing that defamation lawsuits by their nature chill First
Amendment rights."

[Note: Though the court is called the "Supreme Court" of its district,
it is the NY equivalent of what most states call Superior Court, and is
roughtly the state equivalent of a federal District Court.]

Links:

Documents related to the Narconews.com case:
  http://www.eff.org/Cases/BNM_v_Narco_News/

Contact:

    Cindy Cohn, EFF Legal Director
      cindy@eff.org
      +1 415-436-9333 x108

    Thomas Lesser, attorney at Lesser, Newman, Souweine & Nasser
    Attorney for Narconews.com
      +1 413 584-7331

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USAPA SUNSET PROVISIONS COULD LEAVE CONGRESS IN THE DARK

ONGOING OVERSIGHT OF ANTI-TERRORISM LAW CALLED FOR

Introduction:

The USA Patriot Act (USAPA) represents a sweeping increase in the power
of both domestic law enforcement and international intelligence
agencies. With almost no debate and a suspension of the normal review
processes, Congress opened the door for a much more in surveillance of
both American citizens and immigrants.

During the abbreviated legislative process, several members of Congress
expressed concern about its breadth, about the lack of debate and the
suspension of normal Congressional processes. As a result of these
concerns, USAPA Section 224 was added. This section, appropriately
titled "Sunset," set an expiration date of December 31, 2005 for several
of the surveillance provisions of the new law. The Sunset provision was
intended to give Congress and the public the chance to evaluate how law
enforcement exercised some of its broad new powers and to decide
whether the serious reduction of American privacy and civil liberties
enacted by USAPA was worthwhile.

Yet without a vigilant public and diligent exercise of power by
Congress, there will be no objective factual basis on which to evaluate
the impact of USAPA. This is because little or no reporting is
currently required by intelligence agencies or law enforcement about
how they use these new powers.

EFF urges Congress members, especially those of the Intelligence and
Judiciary Committees, to exercise their plenary powers to hold
oversight hearings and require ongoing comprehensive reports about how
these new powers are being used and that, whenever possible, the
information contained in those reports be provided to the public. Such
hearings should begin immediately, since the powers granted by USAPA
are already being used. They should continue periodically through 2005
and, if necessary, beyond that date.

The full text of this report (the above is just the introduction) is
available at:
  http://www.eff.org/sc/20011212_eff_usapa_analysis.html

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SUPPORT EFF THIS HOLIDAY SEASON!

As the holiday season of giving approaches, we ask that you support the
Electronic Frontier Foundation (EFF) and the work that we do. EFF has
been fighting to protect rights in cyberspace for over 11 years. No
organization has our track record for effective advocacy in the online
world. And at no time have we needed your support more.

The current legal/political climate is very difficult for civil
liberties. Indeed, many of the rights that EFF and others have fought
so hard to secure are in jeopardy of disappearing. EFF is fully engaged
in preserving existing rights and in fighting new legislation that
would curtail individual liberties. These efforts along multiple fronts
press hard upon our resources, and we need your support to ensure that
a rational voice for individual rights continues to be heard.

You can make your donation at http://www.eff.org/support/ or you can
send a check to our mailing address:

    Electronic Frontier Foundation
    454 Shotwell Street
    San Francisco CA 94110 USA

This year, give the gift of freedom! Support EFF.

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PLEASE RESUBMIT NOMINATIONS FOR THE EFF PIONEER AWARDS 

We are re-issuing this call for nominations, as an unforeseen
complication with our mail system silently prevented the receipt of
nominations submitted up until Mon., Dec. 9. We have corrected this
problem. If you submitted a nomination before that date, please
re-submit it. Thank you and apologies for the inconvenience.


In every field of human endeavor, there are those dedicated to
expanding knowledge, freedom, efficiency, and utility. Many of today's
brightest innovators are working along the electronic frontier. To
recognize these leaders, the Electronic Frontier Foundation established
the Pioneer Awards for deserving individuals and organizations. The
Pioneer Awards are international and nominations are open to all. The
deadline for nominations this year is Feb. 15, 2002 (see nomination
criteria and instructions below).

How to Nominate Someone

You may send as many nominations as you wish, but please use one e-mail
per nomination. You may submit your entries to us via e-mail to: 
pioneer@eff.org. Just tell us:

 1. The name of the nominee;
 2. The phone number or e-mail address at which the nominee can be
    reached; and, most importantly;
 3. Why you feel the nominee deserves the award.

You may attach supporting documentation as RTF files, Microsoft Word
documents, or other common binary formats, or as plain text.
Individuals, or representatives of organizations, receiving an EFF
Pioneer Award will be invited to attend the ceremony at the
Foundation's expense.

Nominee Criteria

There are no specific categories for the EFF Pioneer Awards, but the
following guidelines apply:

 1. The nominees must have made a substantial contribution to the
    health, growth, accessibility, or freedom of computer-based
    communications.
 2. The contribution may be technical, social, economic, or cultural.
 3. Nominations may be of individuals, systems, or organizations in the
    private or public sectors.
 4. Nominations are open to all (other than EFF staff & board and this
    year's award judges), and you may nominate more than one recipient.
    You may nominate yourself or your organization.
 5. All nominations, to be valid, must contain your reasons, however
    brief, for nominating the individual or organization, along with a
    means of contacting the nominee (or heirs, if posthumous), and your
    own contact number. Anonymous nominations will be allowed, but we
    prefer to be able to contact the nominating parties in the event
    that we need further information.

The 2002 Awards

The 11th annual EFF Pioneer Awards will be presented in San Francisco,
California, in conjunction with the 12th Conference on Computers,
Freedom, and Privacy (CFP2002). All nominations will be reviewed by a
panel of judges chosen for their knowledge of the technical, legal, and
social issues associated with information technology.

For more information please see:

Pioneer Awards web page:
  http://www.eff.org/awards/pioneer.html

CFP site:
  http://www.cfp.org/

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DMCA SLOGAN CONTEST - HELP PROTECT THE INTELLECTUAL COMMONS

The DMCA affects every American, indeed, every human on the planet. The
problem is that the average person doesn't realize this. EFF wants the
input of our supporters to come up with slogans that will raise the
mainstream consciousness to the destructive effects of the DMCA and
inspire us all to continue the fight for free expression.

Put on your thinking caps, summon the creative muse and submit ideas
for slogans and "soundbytes" to help us fight the DMCA. If your idea is
chosen, you will win your choice of vintage EFF T-shirts. Send your
entry to slogan@eff.org. Thanks for your help.

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ADMINISTRIVIA

EFFector is published by:

The Electronic Frontier Foundation
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Editors:
Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster
  editors@eff.org

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