Category — EFF

• South Korean Government Seeks to End Anonymity, Allow Arbitrary Content Takedown
  All forum and chat room users will be required to make verifiable registrations using their real names; Web sites can be taken down for 30 days if they receive complaints of fraud or slander.
• Confidential Data on Millions of Norwegians Sent to Media
  CD containing all Norway’s tax records (which are public) also included ID numbers (which are not).
• France Scales Back Big Brother Database, But Protests Continue
  The “Evige File” will not contain every French citizen active in politics, just those who “pose a security risk.”
• …Has It Killed Three Strikes Too?
  No sign of the Olivennes proposal on the French Senate schedule; rumor is that the Edvige protests have delayed it indefinitely (Google translation).
• British Police Decline to Investigate Phorm
  Says there was no “criminal intent” in unauthorised scanning of British Telecom subscribers’ web traffic.
• Is the ITU Undermining Internet Anonymity?
  Declan McCullough reports on a proposal to more directly track the source of IP traffic, edited by, among others, Cisco, a Chinese ministry, and the NSA.
• Turkey bans biologist Richard Dawkins’ Website
  Due to “defamatory” review of Turkish creationist book.
• Tech Companies: Why Doesn’t US Champion Fair Use Abroad?
  CCIA points out that US trade negotiators are happy to include strong copyright requirements in trade agreements, but never include fair trade or liability protection for intermediaries.

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

Late on Friday night, Comcast filed an overview of its new traffic management arrangements with the FCC. This is the long term replacement for its controversial practice of using forged TCP Reset packets to limit the use of peer to peer protocols.

The new system appears to be a reasonable attempt at sharing limited bandwidth amongst groups of users. Unlike TCP RST spoofing, it doesn’t explicitly discriminate against some applications, and it doesn’t threaten protocol developers with interoperability problems and uncertainty about network behavior.

Comcast’s objective here is still largely to prioritize non-P2P traffic above P2P traffic. But the criterion they use is the amount of data a cable modem sends during each 15 minute period, which is a much fairer rule than examining the traffic protocol. The way deprioritization works is simple: high priority machines get to send data, and if there is any transmission capacity left over, the low priority machines get a share of that.

EFF is proud that our work helped to expose Comcast’s misadventures in network management last year, and we’re pleased to see Comcast returning to congestion management practices that are transparently disclosed and avoid protocol discrimination.

The new traffic management setup should not be confused with the 250 GB/month cap which Comcast announced last month; the two will exist side by side.

read more

Late Friday night, the Government started the formal process for retroactive immunity for the telecommunications companies sued by EFF and others for their involvement in the warrantless surveillance of millions of ordinary Americans. The immunity is a key part of the unconstitutional FISA Amendments Act passed by Congress in July. EFF will be challenging the new law as unconstitutional and that challenge is set for a hearing before federal judge Vaughn Walker, along with the government’s dismissal motion [PDF], on December 2, 2008. To support its attempt to shut the courthouse doors on plaintiffs, the Government filed a “certification” from Attorney General Mukasey. The key substance of the Government’s submission was filed in secret with the court, but the Attorney General also filed a public certification [PDF]. In addition, the Government submitted some legislative history documents [PDF].

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.pd…

Contacts:

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

Paul Alan Levy
Attorney
Public Citizen
plevy@citizen.org

On Wednesday, some hackers apparently obtained unauthorized access to Gov. Sarah Palin’s Yahoo! email account by posing as Gov. Palin and getting a new password (Michelle Malkin and Wired News have details). Yesterday we noted that, based on the facts in newspaper reporting, a court would likely consider this a violation of the Stored Communications Act (SCA).

However, the Department of Justice may be hamstrung in any prosecution of this invasion of privacy by its restrictive view of “electronic storage.” The SCA prohibits unauthorized “access to a wire or electronic communication while it is in electronic storage.” The act defines “electronic storage” as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof,” or in the alternative as “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

Under Ninth Circuit precedent, both received and unreceived emails are in electronic storage. This is because when the recipient accesses an email but does not delete it, it moves from storage incident to transmission to backup storage under the second part of the SCA’s “electronic storage” definition. See Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2003)(finding that “obvious purpose” for storing a message on the provider’s server after delivery is to provide a second copy of the message in the event it needs to be downloaded again). Thus, since Gov. Palin and Yahoo! are both in the Ninth Circuit (Alaska and California respectively), it would violate the SCA to obtain unauthorized access to her emails, whether opened or not.

The DOJ, however, strongly disagrees with Theofel. According to its Prosecuting Computer Crimes Manual, the DOJ “continues to question whether Theofel was correctly decided, since little reason exists for treating old email differently than other material a user may choose to store on a network.” Rather, the DOJ argues:

If the recipient chooses to retain a copy of the communication on the service provider’s system, the retained copy is no longer in “electronic storage” because it is no longer in “temporary, intermediate storage … incidental to … electronic transmission,” and neither is it a backup of such a communication.

The DOJ’s interpretation of the SCA means that any emails that Gov. Palin had already opened (but left on the Yahoo! Mail servers) would not be protected under this email privacy law. This would mean no SCA privacy protection for the majority, if not the entirety, of the Gov. Palin’s email messages at issue. As the DOJ acknowledges, “[i]f Theofel’s broad interpretation of ‘electronic storage’ were correct, prosecutions under section 2701 would be substantially less difficult…” On the flip side, if the DOJ were right and Theofel were wrong, any hacker responsible for obtaining access to those emails - or any other individual’s opened messages - could not be prosecuted under the SCA.

What happened to Gov. Palin shows why Theofel is good for privacy. As more and more people use Web mail like Yahoo!, Gmail, Hotmail and others, they also will naturally leave opened email on the server. People should not have to sacrifice their privacy protections under the law when they do so.

• New Bill Would Tighten Rules for Laptop Searches
  The Border Search Accountability Act would place limits on the governments ability to seize and search computers at the border.
  
• RIAA, MPAA Resume Lobbying on Copyright Law
  The recording industry and the motion picture industry are pushing the latest version of the Enforcement of Intellectual Property Rights Act.
  
• Obama v. McCain on Tech Policy
  Tim Wu compares the positions of the main candidates for president on
  technology and the Internet.
  
• Virginia Supreme Court: Spam Is Protected Speech
  A law banning anonymous mass emails was struck down as unconstitutional.
  
• YouTube Bans Terror Videos
  Terrorist training films and films that incite violence will be taken down as soon as they are identified.
  
• UK Cops Expand Car Surveillance
  Ubiquitous surveillance cameras will enable UK police to log every car journey, raising privacy concerns from civil libertarians.
  
• Hollywood’s New DRM — Lipstick On a Pig?
  The motion picture industry is developing new copy protection that aims to allow some interoperability and loosens controls within the personal domain.
  
• Spies Turn to Wikipedia
  US News and World Report claims the intelligence community is beginning to use “open source” material — meaning “unclassified” — in their reports.
  
• Copyright’s Paradox
  BoingBoing reviews Neil Natenel’s new book on the intersection between free speech and copyright.
• Book Review: Intellectual Property and Open Source
  A review of Van Lindberg’s new guide to US IP law for open source coders.
  

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

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

Last night, someone apparently obtained access to the Yahoo! email account of Governor Sarah Palin, the Republican candidate for Vice President. Screenshots of Gov. Palin’s email account are now widely available on the sites such as Wikileaks and Gawker.

It is unclear how the account was compromised. Possibilities include guessing the Governor’s password, getting a new password by using “basic verification information, such as your birthday and the ZIP or postal code you provided when you registered,” or even using a previously unknown flaw in Yahoo! Mail’s security.

The McCain-Palin campaign responded to the news with a statement that “This is a shocking invasion of the governor’s privacy and a violation of law. The matter has been turned over to the appropriate authorities and we hope that anyone in possession of these e-mails will destroy them.” The FBI and the Secret Service told Wired’s Threat Level that the agencies are investigating.

While we don’t yet have all the facts, based on the public information a court would likely agree that the access was illegal under the Stored Communications Act or SCA. The SCA prohibits access “without authorization [to] a facility through which an electronic communication service is provided” (i.e. Yahoo! Mail), where the perpetrator “obtains … access to a wire or electronic communication [i.e. email] while it is in electronic storage in such system.” The goal of the SCA is to allow people to use third party email services like Yahoo! without compromising their privacy, and the federal privacy law rightly provides strong penalties for illegal access. The law provides the same privacy protection of personal email messages to everyone, from political figures like Gov. Palin to ordinary folks like you and me.

However, it is unlikely that a court would require anyone in possession of these email messages to destroy them. The First Amendment protects the right of independent third parties to disseminate information, even where those third parties are aware that the emails were originally unlawfully obtained. The AP reported that the “Secret Service contacted The Associated Press on Wednesday and asked for copies of the leaked e-mails, which circulated widely on the Internet. The AP did not comply.” It is also unlikely that a court would require the AP to give up its copies.

The key case is Bartnicki v. Vopper, 532 U.S. 514 (2001), in which the U.S. Supreme Court held that the government could not punish the “repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue” by media outlets that had not been involved in the interception, but were aware that the recordings were the product of unlawful interception. The Bartnicki Court found the media’s dissemination of the illegally obtained cell phone communications protected because:

First, respondents played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception. Second, their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else.… Third, the subject matter of the conversation was a matter of public concern.

While Gov. Palin’s Yahoo! email is a private account, a court would likely consider at least some of the emails to be a matter of public concern, especially in light of the questions surrounding the Palin administration’s use of non-government e-mail accounts to conduct state business. Indeed, given the intense public interest in Gov. Palin stemming from her Vice Presidential campaign, a court would likely be very sympathetic to arguments for the newsworthiness of the pilfered email messages.

Thus, while the individuals who broke into Gov. Palin’s personal email account have likely broken the law, news media who played no part in the access to Gov. Palin’s account and obtained the email documents lawfully, such as by pulling them off the web, are entitled under the First Amendment to republish any newsworthy email messages.

Our friends at Public Knowledge have been getting the word out about S. 3325, the Enforcement of Intellectual Property Act of 2008. The bill was amended by the Senate Judiciary Committee last week, but it still aims to give the government the power to bring civil suits against infringers (where they would normally file a criminal lawsuit), allowing the Department of Justice to act as an enforcement tool for the entertainment industry, paid by your tax dollars.

The latest word is that the bill’s backers are aiming to get the bill passed quickly, without the full Senate voting on the measure — without your voice, the bill may very well wind up on the fast track. If you oppose this unprecedented addition to Big Content’s copyright enforcement machine, head to the Public Knowledge site and take action now!

A new book containing explosive details about the NSA’s illegal spying program hits stores today. Barton Gellman’s “Angler: The Cheney Vice Presidency,” excerpted in the Washington Post in two parts (1 & 2), brings to light new information about the warrantless wiretapping scandal and the role played by the most powerful vice president in history.

A certain amount was already known about the behind-the-scenes intrigue concerning the spying program. Earlier reports have described the 2004 near meltdown within the administration, when the top echelon of the Justice department, including Deputy Attorney General James Comey, joined by FBI Director Robert Mueller, planned to resign en masse in protest against the flagrant illegality of the program. (The famous hospital episode — in which then-White House counsel Alberto Gonzales tried to bypass the acting AG by making a late night visit to the bedside of the ailing John Ashcroft — is now part of the sordid lore of the Bush years.)

But “Angler” adds some new insights into just how controversial the program was, and just how carefully it was guarded against a full internal review. From the excerpts published in the Post, we learn about the significant role the vice president and his counsel, David Addington, played a in developing and defending the program:

The command center of “the president’s program,” as Addington usually called it, was not in the White House. Its controlling documents, which gave strategic direction to the nation’s largest spy agency, lived in a vault across an alley from the West Wing — in the Eisenhower Executive Office Building, on the east side of the second floor, where the vice president headquartered his staff.

The vault was in EEOB 268, Addington’s office. Cheney’s lawyer held the documents, physical and electronic, because he was the one who wrote them. New forms of domestic espionage were created and developed over time in presidential authorizations that Addington typed on a Tempest-shielded computer across from his desk [8].

It is unlikely that the history of U.S. intelligence includes another operation conceived and supervised by the office of the vice president. White House Chief of Staff Andrew H. Card Jr. had “no idea,” he said, that the presidential orders were held in a vice presidential safe. An authoritative source said the staff secretariat, which kept a comprehensive inventory of presidential papers, classified and unclassified, possessed no record of these.

Cheney and Addington, the book reports, were so intent on keeping the spying program behind a veil of secrecy that details were carefully withheld even from top national security officials. According to Gellman, officials kept either totally or partially in the dark about the extent of the program include Homeland Security Secretary Tom Ridge, National Security Advisor Condoleeza Rice and the “Gang of Eight” — the ranking senators ordinarily kept in the loop on national security matters. The only lawyers allowed to review the program were Gonzales and John Yoo from the Office of Legal Counsel, and the NSA’s lawyers’ request for information was refused.

Even the president himself was kept in the dark about the internal dissent. Cheney shielded him from knowledge about the Department of Justice’s legal concerns with the spying program for a full three months before Bush finally learned the extent of the rebellion. Even in the face of the Attorney General’s refusal to certify the legality of the warrantless wiretapping, the president went ahead and signed a directive to renew the program on March 11, 2004 — without the signature of the Attorney General.

What Addington wrote for Bush that day… drew up new language in which the president relied on his own authority to certify the program as lawful. Bush expressly overrode the Justice Department and any act of Congress or judicial decision that purported to constrain his power as commander in chief. Only Richard M. Nixon, in an interview after leaving the White House in disgrace, claimed authority so nearly unlimited.

This renewal led to the brink of the mass resignation. When the president, under the impression that objections were being raised “at the last minute,” took acting AG Comey aside to express his dismay, Comey reportedly replied:

“Oh, Mr. President, if you’ve been told that, you have been very poorly served by your advisers,” Comey said. “We have been telling them for months we have a huge problem here.”

“Give me six weeks,” Bush asked. One more renewal.

[...]

“I think you should know that Director Mueller is going to resign today,” Comey said.

Bush raised his eyebrows. He shifted in his chair. He could not hide it, or did not try. He was gobsmacked.

“Thank you very much for telling me that,” he said.

Comey, who had drafted his resignation and was waiting only for the return of John Ashcroft to official duty for the opportunity to resign in tandem, was persuaded to meet with the president to forestall disaster for the Administration. In response to Comey’s objections, the president agreed to make changes to his directive, and the program was modified in ways that remain unknown. On March 18, a new directive that satisfied Comey and Ashcroft was put into place.

What is known is that the fear within the Administration of prosecution for participation in the illegal program was likely a major factor in the decision to adjust course. The new information makes it all the more clear that Congress needs to have more hearings and investigations. In the meantime, we’ll keep up the pressure.

EFF and more than 100 public interest organizations from around the world are calling for answers about the Anti-Counterfeiting Trade Agreement (ACTA) today.

Based on leaked documents and industry comments about ACTA, we believe the treaty could require Internet service providers to monitor all consumers’ Internet communications, interfere with fair use of copyrighted materials, and criminalize peer-to-peer electronic file sharing. However, the full text of the treaty and other relevant documents remain secret. That’s why the coalition today is demanding the immediate release of the ACTA draft.

Time is running out: ACTA proponents want this secret treaty signed before the end of the year. Contact your senator now and urge them to make this process public.

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_…

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

• Bloggers Less Well-Defended than Press in Morocco
  The arrest and two-year sentence of Mohammed Raji marks the first time anyone has been punished for a blog post in Morocco.
• EDVIGE and the Angry French
  Opposition to a massive new “Big Sister” database has been boosted by a member of President Sarkozy’s own cabinet.
• Brussels Says Blogs Scuppered Lisbon Treaty
  A secret European Commission report has come out strongly against the “anti-establishment activity” of blogging as part of an analysis of the internet and “its implications for public opinion about the EU”.
• Google Says EU Data Laws do not Apply
  Even though Google has data servers in the EU, it is too American a company to have to obey data privacy laws, it claims.
• The End of “the American Internet” and the Future of Content Controls
  Will traffic moving through more countries affect free speech online?
• Xavier Niel, France’s ISP Billionaire, Hates the Olivennes Law
  “Will filter everything and listen to all” (Google Translation)
• Feminist Bloggers in Iran Sentenced to Six Months in Jail
  Reporters Without Borders writes on the cases of Parvin Ardalan, Jelveh Javaheri, Maryam Hosseinkhah and Nahid Keshavarz.

• Comcast Appeals FCC Web Traffic-Blocking Decision
  As expected, Comcast is challenging the FCC’s authority to regulate the ISP’s web traffic blocking behavior.
  
• Judge: Harry Potter Lexicon is Not Fair Use
  A fan’s reference text to the Harry Potter series has been found to be infringing.
  
• Judge: Law Protects Anonymous Comments on News Sites
  A District Court judge found that commenters on the Billings Gazette website are protected by state law that shields anonymous news sources.
  
• “Kicking Stupendous Quantities of Ass” at WIPO
  EFF Fellow Cory Doctorow describes his efforts to reform the World Intellectual Property Organization.
  
• The Law is Not Copyrighted
  Carl Malamud’s latest project is scanning and posting state and local laws for all to copy and use.
  
• Video Shows Easy Hacking of Voting Machines
  A new study from the Security Group at UCSB has released a paper and a video detailing a successful attack on electronic voting machines.
  
• Free Music Downloads Without Legal Peril
  A look at the legal alternatives to LimeWire.
  

Yesterday, Google announced a revised log retention policy, saying “we’ll anonymize IP addresses on our server logs after 9 months,” instead of the previous 18-24 months. Other information, like cookies, will stay on the longer retention plan. The announcement was in conjunction with Google’s response to the European Union’s Article 29 Working Party. The Working Party had previously said “In view of the initial explanations given by search engine providers on the possible purposes for collecting personal data, the Working Party does not see a basis for a retention period beyond 6 months.”

Google’s original 18 month log retention policy was a good first step, and the 9 month policy is an excellent second step towards bring their policy in line with EFF’s Best Practices for Online Service Providers, which recommends a combination of obfuscation, aggregation and deletion.

We appreciate that Google continues to re-assess its data retention policy, and hope it will further reduce the time period that the search giant keeps personally identifiable logs. The importance of eliminating logs was recently illustrated by the Viacom-Google lawsuit, in which federal court ordered Google to produce to Viacom (over Google’s objections) the Logging Database for YouTube, showing who watched each and every video on YouTube. The court’s ruling violated the Video Privacy Protection Act, and, after EFF brought the user viewing data controversy issue to light, Viacom narrowed its request. In yesterday’s announcement, Google acknowledged that “privacy leaders also highlighted the risks of litigants using court-ordered discovery to gain access to logs, as in the recent Viacom suit.”

In addition, Google announced that it was changing its retention policy with the Google Suggest feature. EFF and others were concerned because, in order to implement Google Suggest, the Google Chrome browser sends anything typed in the browser’s Omnibox back to Google. Google Suggest is also used in Google Search, Google Toolbar, Firefox, and the Google Search application on the iPhone. Google said “given the concerns that have been raised about Google storing this information — and its limited potential use — we decided that we will anonymize it within about 24 hours.”

Google did not provide the technical details of its new policies, writing it had not “sorted out all of the implementation details, and we may not be able to use precisely the same methods for anonymizing as we do after 18 months, but we are committed to making it work.” As we know from the AOL search history debacle, anonymization is not easy. Under the announced policy, only IP addresses will be directly anonymized, and effective anonymization will be especially challenging since Google retains cookie information for longer than the IP information. We look forward to seeing the details.

Last week, we sent out a call to action over the “white spaces” issue soon to be addressed by the FCC. Let’s take a closer look at why this issue matters.

It ought to be a no-brainer to say that the airwaves belong to everyone. We use the airwaves to carry TV and radio signals, for our cellphones and cordless phones, even for garage door openers and baby monitors. And while corporations are given license to use limited slices of the spectrum for radio and TV, the airwaves remain public property, a treasure we hold in common.

The FCC’s job is to regulate this valuable resource in the public interest. Later this fall, the FCC is expected to decide what should be done with “white spaces,” the unused areas of the spectrum that lie between channels licensed by TV and radio broadcasters. These white spaces amount to vast, unused real estate in the spectrum, a territory that will only increase in February 2009 with the discontinuation of analog TV signals.

Should these spare airwaves be auctioned to the highest bidder, or should they be preserved as open space that can be used by anyone? EFF is joining other groups, including Public Knowledge and Google’s Free the Airwaves campaign, in calling on the FCC to allow this unused spectrum to be left open and unlicensed. Our hope is that this will allow more people than ever before to use these resources, which were once the exclusive monopoly of private industry.

This would mean the airwaves could be used to deliver high-speed broadband wireless Internet access — an Internet with the same reach as broadcast radio and television. The public would be able to get online from almost any public or private space, untethered to wired connections or Wi-Fi hotspots. Accessing the Internet would be as easy as picking up a radio frequency. Low-income neighborhoods and rural areas where fiber-optic wires prove too expensive to lay down could enjoy the same fast connection speeds as dense urban neighborhoods.

The promise of wireless broadband would also allow an increase in the number of ISPs offering Internet access, delivering a challenge to the near monopolies held by cable and broadband providers in most areas. Increased competition among ISPs should drive down prices and potentially increase pressure on ISPs to maintain net neutrality and other desirable network policies (i.e. no 250GB caps).

Developers would also be free to use this spectrum to experiment with new devices that take advantage of the newly available spectrum. When the Internet is everywhere, cheap and easy to access, new devices will spring up to make use of it, promising a revolution in wireless technology that will likely bring changes we can only now imagine.

It wouldn’t be an absolute free-for-all: companies using the space would have to use systems that would prevent them interfering with other spectrum users, just as airplanes have to obey air traffic control to fly in our skies.

But TV and radio broadcasters and other industries are defending their traditionally exclusive grip on the radio frequencies. They say external use of white spaces might interfere with their analog TV signals or with wireless mics used in concerts and sport events — even before the FCC is done testing prototype devices designed to avoid interference. Moreover, fears about interference begin to sound a bit stale in the face of new technology that allows white space devices to co-operate in sharing their common bandwidth while keeping them out of the way of the sprawling analog TV signals.

EFF encourages the public to make its voice heard in this vital debate about the future of the radio spectrum and the Internet. Public resources should be used in the public interest, and what better way to do that than to bring the communications medium of our time to a wider audience than ever, at greater speed, and lower cost?

Take action now. Tell the FCC to open up the airwaves!

Over a period of twelve hours, between this Thursday night and Friday morning, American Rights Counsel LLC sent out over 4000 DMCA takedown notices to YouTube, all making copyright infringement claims against videos with content critical of the Church of Scientology. Clips included footage of Australian and German news reports about Scientology, A Message to Anonymous/Scientology , and footage from a Clearwater City Commission meeting. Many accounts were suspended by YouTube in response to multiple allegations of copyright infringement.

YouTube users responded with DMCA counter-notices. At this time, many of the suspended channels have been reinstated and many of the videos are back up. Whether or not American Rights Counsel, LLC represents the notoriously litigious Church of Scientology is unclear, but this would not be the first time that the Church of Scientology has used the DMCA to silence Scientology critics. The Church of Scientology DMCA complaints shut down the YouTube channel of critic Mark Bunker in June, 2008. Bunker’s account, XenuTV, was also among the channels shut down in this latest flurry of takedown notices.

• Europe’s Privacy Czar Attacks Telecom Amendments in EU
  Says that they could allow over-reaching controls over Internet technology.
• Kremlin Web Critic Shot by Police in Ingushetia
  Magomed Yevloyev, owner of the ingushetiya.ru site, and vocal critic of Ingushetia regional administration, was shot by a police officer, and died from his injuries, after being detained.
• NZ Judge bans Net Naming of Defendants Online
  Worries about “viral nature” of reporting, censors website.
• Wiretapping Comes to Uganda
  New “privacy” bill is slammed by Amnesty International.
• Malaysia Clamping Down on Internet Free Speech
  Rumors of portal site blocked, and a cabinet decision to sue critics of the new government for defamation.
• India’s Info-Activism Camp
  Want to use digital advocacy in the developing world? Come to Tactical Tech’s Info-Activism Camp - Feb 2009, India.
• Stop Software Patents Petition
  Activists in Europe take the initiative to stop software patents permanently.
• Egyptian Blogger Mohamed Refaat is Arrested
  He had already been detained for a month before being charged under Egypt’s emergency laws.
• Britain Plans Mandatory ISP Logging of Internet
  Data retention will enter into British law after consultation, but without parliamentary debate.

Since Google’s announcement of the Free the Airwaves campaign, there has been renewed interest in wireless broadband, municipal wi-fi, white spaces — all long-standing efforts to bring more Internet to more people by making the Internet access available in the airwaves, instead of through underground wires. Faster, cheaper wireless Internet access is an exciting prospect with near-universal benefits to the American public — but for the moment, its growth rests in the hands of the Federal Communications Commission (FCC).

Within the next few months, the FCC is expected to decide the fate of cutting-edge wireless access through a proceeding titled “Unlicensed Operation in the TV Broadcast Bands”. Ideally, the FCC will permit new technologies to take advantage of unused “white space” spectrum to send and receive data wirelessly. Allowing open, unlicensed use could pave the way for faster, cheaper wireless broadband — leading to more ISP choices for consumers and a source of continued pressure for ISPs to maintain net neutrality.

Despite the obvious benefits to the public, the television industry and other broadcasting industries are fighting to keep the white spaces locked down. They claim that the new devices might interfere with the spectrum currently used for TV channels. While the FCC Office of Engineering Technology has been testing devices that dodge the spectrum used by TV channels, their findings are likely to avoid advising the commission to decide one way or another.

The public must be heard also — don’t let the massive TV broadcasting lobby kill this opportunity. Tell the FCC to support innovation and the Internet by opening up the unused parts of the TV spectrum.

Tell the FCC to support innovation and the Internet by opening up the unused parts of the TV spectrum.

• AT&T Throws Blue Dog Party
  At the Democratic National Convention in Denver, AT&T threw a big party for Blue Dog Democrats who backed telecom immunity.
  
• Joe Biden’s Pro-RIAA, Pro-FBI Record
  The Democratic nominee for Vice President has a history of uncompromising support for Hollywood, the recording industry and the intelligence community.
  
• Comcast Introduces Bandwidth Caps
  Customers that make heavy use of their Internet connections will be capped at 250gb per month.
  
• Studios Want Interoperable DRM
  The big movie studios are joining forces to come up with a single scheme for DRM copy protection, in order to encourage greater online sales.
  
• University Fighting P2P Use With… E-mail?
  Northwestern University has begun a policy of simply notifying students when P2P traffic is detected.
  
• Psystar Sues Apple
  The Mac clone maker is countersuing against Apple, alleging anti- competitive practices.
  
• RIAA, MPAA Lobbying at Political Conventions
  When the RIAA and the MPAA aren’t suing fans, they’re lobbying, says Wired’s Threat Level blog.
  
• Are Images of the Early Mickey Mouse Copyrighted?
  A legal scholar says the earliest representations of Mickey Mouse may not be protected by copyright.
  

EFF Senior Staff Attorney Fred Von Lohmann just won a much-prized acknowledgment from Public Knowledge, a public interest group based in Washington, DC whose mission to promote innovation and protect consumer rights often complements our mission at EFF.

Public Knowledge each year hands out the IP3 Awards to highlight the work of individuals whose work contributes to the public interest in one of the three IP areas — Internet Protocol, Intellectual Property and Information Policy.

Surprise! Fred’s IP3 Award is for his contribution to the world of Intellectual Property:

Von Lohmann was nominated for his work to advance the cause of fair use while protecting innovation. Von Lohmann has designed legal strategy for, and argued cases on behalf of, the cause of fair use of intellectual property before every level of Federal court. He is in the forefront of advocating new policies that reflect the protection of users and the reasonable balance between copyright and consumer rights. He will be given the award for contributions to Intellectual Property.

This isn’t the first time Fred has gotten props for his brilliant work defending fair use, consumer rights, and articulating a Better Way Forward. He won a California Lawyer of the Year (CLAY) award in 2003 and was recognized as a “SuperLawyer” in 2008. Go Fred!

PK will also be giving much deserved awards to Rep. Zoe Lofgren, Free Press Plicy Director Ben Scott, and Public.Resource.org founder Carl Malamud.

Yesterday, the FBI, UC Berkeley police, and Alameda County Sheriff’s deputies conducted a raid on the Long Haul Infoshop, a community space that is home to a number of leftist and anarchist groups, including a newspaper and a radio station. Armed with a warrant (PDF), authorities entered and quickly removed every computer in the Long Haul space.

According to the Associated Press, a UC Berkeley spokesman said that the raid was part of an investigation into threatening e-mails tracked to computers there. Among the computers seized were computers belonging to the Slingshot newspaper, and the Berkeley Daily Planet reports that police “got [Berkeley Liberation Radio's] hard drive.”

Even with a warrant, the authorities may have acted in violation of federal law when they seized the computers. The seizure of media computers would appear to be a violation of the Privacy Protection Act, which says that the authorities are not entitled to “search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper [or] broadcast.”

The purpose of the Privacy Protection Act is to ensure the freedom of speech and of the press. While there are exceptions to the act (such as when the documents seized themselves contain classified information or child pornography), the intent of the act is to prevent the government from using its search and seizure powers to shut down newspapers and radio stations, or otherwise interfere with the free flow of information to the public.

The seizure of computers is of special interest to EFF, since the first case we fought — and won — was a result of the illegal seizure of several computers from Steve Jackson Games in 1990. In that case, the federal court held that the Secret Service violated the Privacy Protection Act, and ordered the agency to pay for the harm it had caused.