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## Press Releases
Writer Danny O'Brien Will Join Staff and Lead Grassroots Campaigns
San Francisco, CA - The Electronic Frontier Foundation (EFF) is pleased to announce that Danny O'Brien will be joining the organization as its new Activism Coordinator. Current Activism Coordinator Ren Bucholz will be moving to Canada later this month and will work on international issues for EFF from his home base there.
O'Brien is a British writer with a long track record of campaigning on digital rights issues in the UK. He was a co-founder of STAND (http://www.stand.org.uk), a UK grassroots network that helped successfully fight private key escrow in Britain, inspired a rare government apology for surveillance power excesses, and helped postpone a proposed national identity card scheme. He also helped devise FaxYourMP.com and TheyWorkForYou.com, two award-winning parliamentary oversight websites. He has lived in the United States since 2000.
"I've always been a great admirer of EFF's achievements," said O'Brien. "I'm looking forward to working not only with EFF's own incredible activist network, but also the many other groups that make up the growing movement for digital rights around the world."
O'Brien joins EFF's growing team of analysts with a background in powerful writing, including science fiction author Cory Doctorow, syndicated "Techsploitation" columnist Annalee Newitz, and Donna Wentworth, founding editor of the website, "Copyfight: The Politics of IP."
"EFF has a tradition of attracting some of the brightest, most talented minds in the technology world," said EFF Executive Director Shari Steele. "Danny will make a great addition to our team, as we work to protect civil liberties in the electronic age."
Contacts:
Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org
Danny O'Brien
Activism Coordinator
Electronic Frontier Foundation
danny@eff.org
Creators of Tor, an Anonymous Communication System, Discuss Their Work at May 10 BayFF
San Francisco, CA - On Tuesday, May 10, the Electronic Frontier Foundation (EFF) will host another "BayFF," a free event series for the general public. This month, the subject is anonymous Internet communication. Roger Dingledine, principal system designer of the anonymous communication network
[Tor](http://tor.eff.org), will appear in person to discuss his work with Chris Palmer, EFF's Technology Manager.
Tor is a network-within-a-network that protects Internet communication from a form of surveillance known as "traffic analysis." Traffic analysis tracks where data goes and when, as well as how much is sent, rather than the content of communications. Knowing the source and destination of Internet traffic allows others to track a person's behavior and interests. The serious privacy implications of this type of surveillance will be discussed, as well as ways Tor helps to protect against it.
This free event is being held at
[111 Minna Gallery](http://www.111minnagallery.com/) in San Francisco, from 7:00-9:30 p.m. Refreshments will be provided. Because 111 Minna is a bar, attendees must be 21 or over.
Contacts:
Katina Bishop
Projects Coordinator
Electronic Frontier Foundation
katina@eff.org
Santa Clara County, CA - Today the Electronic Frontier Foundation (EFF) continued to support three online journalists in a fight to protect their anonymous sources. EFF, along with co-counsel Thomas Moore III and Richard Wiebe, filed a
[brief ](https://www.eff.org/Censorship/Apple_v_Does/reply_to_opposition.pdf) on behalf of the journalists, responding to Apple Computer Inc.'s opposition to the journalists' request for the California Appellate Court in Santa Clara to intervene. [Apple is suing several unnamed individuals](https://www.eff.org/Censorship/Apple_v_Does/), called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the ISP for PowerPage.org publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.
EFF appealed the trial court decision which held that if a journalist publishes information a business deems to be a trade secret, this act destroys constitutional protection for the journalist's confidential sources and unpublished materials. EFF awaits word from the California Appellate Court as to whether the appeal will be granted.
Contacts:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
EFF Sends Letter of Protest to Shearman & Sterling Over Subpoena to Craigslist
San Francisco, CA - When an employee of San Francisco law firm Shearman & Sterling received an email from an anonymous person who seemed to be a disgruntled subordinate, he didn't hit the delete button. Instead, his firm subpoenaed craigslist, a community bulletin board where the email first appeared as a posting, in order to discover the identity of the "Jane Doe."
The firm justified its actions by arguing that the alleged employee's email was a form of "trespass" on Shearman's computer systems. The implication of this claim is far-reaching. Contradicting binding precedent, Shearman proposes a rule that would mean anyone who sends an email faces legal liability. It would allow email recipients to track down anonymous correspondents simply to punish them for being annoying or offensive.
The Electronic Frontier Foundation (EFF) has written an
[open letter](https://www.eff.org/Privacy/Anonymity/OpenLetterShearman.pdf) to Shearman urging it to drop the subpoena. "The Constitution does not permit subpoenas for identity just because someone was upset," said EFF Staff Attorney Kurt Opsahl. "While it is unfortunate that a Shearman employee received an offensive email message, Shearman cannot manufacture a cause of action out of thin air just so it can unmask an anonymous speaker."
In its letter, EFF reminds Shearman of the long tradition of US courts protecting anonymous speech, and argues that the law firm has demonstrated no legal cause of action because it did not show how receiving a single email message caused harm. Indeed, the California Supreme Court ruled two years ago that sending an email is not a form of trespass (see
[Intel v. Hamidi](https://www.eff.org/spam/Intel_v_Hamidi/)).
Contacts:
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Groups File Friend-of-the-Court Briefs Supporting Online Journalists
Santa Clara County, CA - A coalition of news publishers and two Internet industry trade associations filed friend-of-the-court briefs today in
[Apple v. Does](https://www.eff.org/Censorship/Apple_v_Does/), urging the California Court of Appeal to protect the confidential sources of journalists and defend email privacy. On behalf of three online journalists, EFF is appealing the California Superior Court's earlier decision in the case, which allows Apple to subpoena a journalist's email in order to discover the source of information he published about a forthcoming Apple product code-named "Asteroid."
The news publishers argued that the trial court incorrectly allowed trade secret law to trump First Amendment rights, and that Apple has failed to exhaust all other alternative sources for the information it seeks before going after journalists' sources, as required by the reporter's privilege under the First Amendment.
[The brief](https://www.eff.org/Censorship/Apple_v_Does/20050407_apple_brief.pdf) was prepared by Grant Penrod of the Reporters Committee for Freedom of the Press, and signers include the Associated Press, the California First Amendment Coalition, the California Newspaper Publishers Association, Copley Press, Freedom Communications, Inc., Hearst Corp., Los Angeles Times, McClatchy Company, San Jose Mercury News, Society of Professional Journalists, Reporters Committee for Freedom of the Press, and the Student Press Law Center.
The US Internet Industry Association and NetCoalition, which represent Internet companies including Internet service providers (ISPs), search engines, portals, and hosting services, also filed a
[friend-of-the-court brief](https://www.eff.org/Censorship/Apple_v_Does/20050408_usiia_netcoalition_brief.pdf). These trade associations argued that the journalist's email messages are protected under the federal Stored Communications Act. They further contend that if the trial court decision is not reversed, it will place an undue burden on service providers and will severely compromise email users' privacy. Elizabeth Rader of the law firm Akin Gump served as pro bono counsel to the Internet trade groups.
"The coalition of newspapers and media organizations recognized that the trial court's disregard for the First Amendment would broadly chill reporting by all journalists, regardless of medium," said EFF Staff Attorney Kurt Opsahl.
"The Internet industry's support illustrates the widely accepted rule that email service providers are prohibited by federal law from disclosing users private email in civil disputes," added EFF Staff Attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston.
Apple is suing several unnamed individuals called "Does," who allegedly leaked information about "Asteroid." Apple has subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that it turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF's clients for similar information.
Contacts:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
EFF to Honor Mitch Kapor, Edward Felten, and Patrick Ball at the 14th Annual Pioneer Awards Ceremony
Seattle, WA - The Electronic Frontier Foundation (EFF) will hold its 14th Annual
[Pioneer Awards](https://www.eff.org/awards/pioneer/) presentation at 7:00 p.m. on April 13th at the [Science Fiction Museum](http://www.sfhomeworld.org) in Seattle, Washington, in conjunction with the 2005 [Computers, Freedom & Privacy](http://www.cfp2005.org) (CFP) conference. This year's winners, nominated by the public and selected by a panel of independent judges, are entrepreneur and EFF co-founder Mitch Kapor, Princeton University computer science professor Edward Felten, and human rights activist Patrick Ball.
Since 1991, the EFF Pioneer Awards have recognized individuals who have made significant and influential contributions to the development of computer-mediated communications or to the empowerment of individuals in using computers and the Internet.
The winners of this year's awards have contributed to their fields by advancing the causes of human rights and civil liberties in the area of high technology.
Dr. Patrick Ball is a leading innovator in applying scientific measurement to human rights. He directs the Human Rights Data Analysis Group (HRDAG) at Benetech (www.benetech.org), a nonprofit organization that combines the impact of technological solutions with the social entrepreneurship business model to help disadvantaged communities. He served as the catalyst behind two open source software tools for the human rights community, "Martus" and "Analyzer," which aid in the secure storage and analysis of data on human rights violations. He will be accepting his award from East Timor.
Edward Felten is a professor of Computer Science at Princeton University whose research interests include computer security and technology law and policy. He brings these scholarly interests to his work as an activist. In 2001, Felten and EFF sued the Recording Industry Association of America (RIAA) and the Secure Digital Music Initiative (SDMI) in a case challenging the constitutionality of the Digital Millennium Copyright Act (DMCA). Felten is also author of "Freedom to Tinker" (www.freedom-to-tinker.com), a highly regarded weblog exploring the ways government and industry attempt to limit technological innovation and what activists can do about it.
Mitch Kapor is President and Chair of the Open Source Applications Foundation (www.osafoundation.org), a nonprofit organization he founded in 2001 to promote the development and acceptance of high-quality application software developed and distributed using open source methods and licenses. He is widely known as founder of Lotus Development Corporation and the designer of Lotus 1-2-3, the "killer app" that made the personal computer ubiquitous in the business world in the 1980's. In 1990 he co-founded the Electronic Frontier Foundation and served as its chairman until 1994.
"I am thrilled to be able to honor Mitch, Ed, and Patrick for their incredible work," said EFF Executive Director Shari Steele. "Each of them has made a significant, unique contribution to protecting civil liberties in this digital age, and they are all deserving of our respect and admiration."
The judges for this year's EFF Pioneer Awards were: Kim Alexander (President and Founder, California Voter Foundation) Herb Brody (Deputy Editor, Technology Review) Esther Dyson (Editor, Release 1.0, CNET Networks) Moira Gunn (Host, "Tech Nation," National Public Radio) Donna L. Hoffman (Professor of Management and Co-Director, eLab, Vanderbilt University) Peter G. Neumann (Principal Scientist, SRI Intl. Moderator, ACM Risks Forum) Drazen Pantic (Media and Tech Director, NYU Center for War, Peach and the News Media) Barbara Simons (Founder and Co-Chair, ACM's US Public Policy Committee and Consulting Professor, Stanford) and Karen G. Schneider (Coordinator of Librarians' Index to the Internet).
Previous Pioneer Award recipients include Avi Rubin, Tim Berners-Lee, Linus Torvalds, and Vinton Cerf, among many others.
Contact:
Katina Bishop
Projects Coordinator
Electronic Frontier Foundation
katina@eff.org
EFF Releases How-To Guide for People Who Want to Blog Safely and Anonymously
San Francisco, CA - With the privacy of bloggers and their news sources
[coming under fire in the court system](https://www.eff.org/Censorship/Apple_v_Does/), it's crucial that web writers know how to express themselves without risking their jobs or social lives. Yesterday the Electronic Frontier Foundation (EFF) released ["How to Blog Safely (About Work or Anything Else),"](https://www.eff.org/Privacy/Anonymity/blog-anonymously.php) a how-to guide for bloggers worried about protecting their privacy and free speech.
The guide covers basic measures people can take to keep their blogs anonymous and explores what the law says about discussing work-related issues online. Some advice is common sense for example, don't post a picture of yourself if you want to stay anonymous. But for bloggers who want strong guarantees of privacy, EFF suggests using technologies like Tor or Anonymizer to prevent your blog-hosting company from logging your computer's unique Internet Protocol (IP) address. Bloggers who fear they could be fired for blogging are also given an introduction to laws that prevent an employer from punishing them for speaking out online.
"There is a lot of misinformation out there about the ways people could get into trouble for blogging," said EFF Policy Analyst Annalee Newitz. "We hope advice about online anonymity and the law will help more people engage in free expression without living in fear of reprisals, legal or otherwise."
Contacts:
Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
MGM v. Grokster Raises Questions About Innovation and Litigation
Washington, DC - The Electronic Frontier Foundation (EFF) was heartened to hear the Justices of the United States Supreme Court engage in a lively debate Tuesday about whether technology manufacturers should be held liable for the infringing activities of consumers. At stake is nothing less than the future of innovation in the United States. If vendors are held responsible for what people do with their products, even tech giants like Intel say they'd have to fire engineers and hire lawyers.
MGM and nearly a dozen other entertainment companies argued that peer-to-peer software manufacturers Grokster and StreamCast had built their businesses by distributing "infringing machines." But counsel for the entertainment industry, Donald B. Verrilli Jr. of the law firm Jenner & Block, scarcely finished his opening statements before the Justices interrupted with pointed questions about how his arguments would impact technological innovation. Justice Antonin Scalia asked how the industry would protect nascent technologies from "out-of-the-box lawsuits," and Justice Stephen Breyer pushed him to explain why MGM's argument wouldn't also apply to the iPod, Xerox machines, and even Gutenberg's printing press.
Richard G. Taranto of the law firm Farr & Taranto, who represented respondents Grokster, Ltd., and StreamCast Networks, Inc., replied that it was crucial for the Court to reaffirm its 21-year-old
[Betamax ruling](http://www.eff.org/legal/cases/betamax/), which held that companies should not be barred from selling products that may be used for copyright infringement if there is a potential for significant legal uses. Taranto also pointed out some of the many noninfringing uses for peer-to-peer software, including genomics research, archiving works in the public domain, and distributing new media whose creators use open copyright or Creative Commons licenses.
"The Justices asked all the right questions," said EFF Senior Staff Attorney Fred von Lohmann, lead attorney for StreamCast. "They were clearly worried about how this ruling would affect the future of technological invention. As Justice David Souter said, we shouldn't hang a sword of Damocles over the heads of America's innovators."
The Court will likely issue a decision in late June or early July.
More about
[MGM v. Grokster](http://www.eff.org/IP/P2P/MGM_v_Grokster/).
Contact:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
Residents of 56 Nations and Members of Hundreds of NGOs Sign Petition to Open Meetings on Intellectual Property and the Developing World
Geneva - When the World Intellectual Property Organization (WIPO) earlier this month shut out many public interest groups from two April meetings about the impact of patent, copyright and related regimes on the developing world, many civil society groups greeted the news with concern.
Most of the groups barred from the meetings, which are to focus on whether WIPO should adopt a
["Development Agenda,"](http://www.eff.org/IP/WIPO/dev_agenda/) are public interest organizations with special expertise on issues of economic development. Without the input of these groups, the meetings can do little to further WIPO's understanding of how patents, copyright, and related rights affect developing nations.
Seeking a more balanced discussion of the Development Agenda, two Brazilian activists, Pedro de Paranagua Moniz and Pedro AD Rezende, as well as the Electronic Frontier Foundation's European Affairs Coordinator, Cory Doctorow, took action: they produced
[an open letter](http://www.cic.unb.br/docentes/pedro/trabs/wipo-stats.html) to WIPO on this issue and solicited comments on the Internet.
As a result, this week over 800 individuals and groups, including EFF, signed an open letter to WIPO urging it to allow more groups to participate in these historic meetings. Residents of 56 different nations signed on, along with members of non-government organizations (NGOs) ranging from a Brazilian AIDS health group to Yale University. The letter, called the "WIPO Manifesto for Transparency, Participation, Balance and Access," asks that public interest NGOs be allowed to participate in the Development Agenda meetings as ad hoc observers and calls on WIPO to provide assistance in creating a global regime that facilitates open access to knowledge.
"WIPO is undertaking a long-overdue and halting journey from a place where industrial interests meet to safeguard their marketplace advantages, to a place where the UN's humanitarian values hold center stage," said Doctorow. "This letter is the latest step in the important campaign to refocus WIPO on providing effective technical assistance that meets the real needs of its developing country members."
The open letter was delivered to Dr. Kamil Idris, Director General of WIPO, on March 23, 2005, with more than 800 signatories, and it is still open for signature.
Contacts:
Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org
Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
gwen@eff.org
EFF Joins Fight to Promote Technology Access for Charitable Groups
**Note: The Electronic Frontier Foundation is recirculating this press release on behalf of NIA for your information.**
Washington, DC - The Nonprofit Innovation Alliance (NIA) today announced that four of the nation's most prominent nonprofits - United Way of America, the American Diabetes Association, Network for Good and Electronic Frontier Foundation - have joined the growing movement against business method patents to help promote ongoing access by America's nonprofit organizations to innovative technology.
"As nonprofits recognize the threat posed by business method patent abuse, there is growing support for collective action to protect technology access for America's charities," said Shabbir Safdar, Acting Secretary of the Nonprofit Innovation Alliance. "The fact that the United Way of America, American Diabetes Association, Network for Good and Electronic Frontier Foundation have pledged their support for the NIA sends a strong message: business method patents are bad for the nonprofit sector and should be eliminated."
These four organizations have pledged support for the NIA's goals because they believe that nonprofits are best served if technology vendors and service providers help declare the nonprofit industry as a "business method patent-free zone." They are encouraging technology vendors and service providers working with them and other nonprofits to join the NIA. Support for NIA's goals from the Electronic Frontier Foundation (EFF) is especially significant because this group is the leading civil liberties organization working to protect people and organizations whose online rights and freedoms are threatened.
Nonprofit organizations can
[pledge support](http://www.nonprofitinnovation.org/) for the NIA.
The NIA consists of leading technology and consulting companies that provide products, services and/or consulting to help nonprofits optimize their use of the Internet for fundraising, advocacy, event management and other mission-critical activities. Alliance members agree to cross-license any current and future business method patents on a royalty-free basis for the benefit of their nonprofit customers.
Viewed by many to be a scourge in the for-profit world, business method patents would be even more so for the nonprofit sector. Instead of protecting a real technology invention, these patents typically cover a process of doing business on the Internet. Such patents, prone to abuse, could result in nonprofits spending much more out of every dollar raised on license fees to use the Internet for fundraising, communicating with constituents, advocating for public policies and managing events such as walks, runs and galas. Alternatively, to avoid the impact of royalty payments to business method patent holders or the threat of being sued, nonprofits may choose sub-optimal technology solutions.
Said Michael Schreiber, Executive Vice President for Enterprise Services, United Way Of America, "We're on board with the NIA and against business method patents because adoption of technology by nonprofits is accelerating and organizations are becoming much more sophisticated in how they use these new and powerful tools. There is a growing need to share and make use of technology innovation - not stifle its diffusion throughout the charitable sector."
Network for Good's Chief Executive Officer, Bill Strathmann, explained why Network for Good is supporting the NIA. "The alliance represents something nonprofits believe in and, to a large degree, rely on: collaboration. Like their customers, nonprofit providers must balance their business interests with those of the sector. Nonprofits need choices when it comes to the tools they use to help fulfill their missions. When providers collaborate, nonprofits win."
About Business Method Patents
First validated by the courts in 1998, business method patents are highly controversial because they typically do not cover innovations that solve a particular technology problem. Instead, holders of business method patents are claiming to be the first to engage in a transaction over the Internet in a particular way. Examples of business method patents include Amazon's one-click patent and Priceline's reverse auction patent.
Business method patents are prone to abuse. A patent holder can sue or threaten to sue anyone or an organization that uses a similar business method and seek to collect licensing fees, effectively extracting a "patent tax" for common ways of utilizing the Internet. However, charitable organizations today rely increasingly on the Internet to fundraise, communicate, advocate and manage events over the Internet. Business method patents will require nonprofits to spend much more of every dollar raised on coercive license fees to run their organizations, diverting funds away from the delivery of critical programs and services to constituents. Or groups may simply take the path of least resistance and use sub-optimal technology solutions to avoid the specter of litigation.
As an example, the following is the claimed invention described in a patent application filed with the US Patent and Trademark Office:
"A method for conducting a fundraising campaign by an organization or person over a wide-area network, comprising the steps of: hosting a website including a plurality of linked web pages, the website providing information about the fundraising campaign and soliciting potential donors to make a charitable contribution to the fundraising campaign registering on the website contacting third parties via email messages soliciting charitable donations and providing one or more reports, on the website, including information on the status of the fundraising campaign." (Patent application entitled: "Method and system for an efficient fundraising campaign over a wide area network" application number 764787.)
According to the NIA's Safdar, "This application describes widely used practices for online fundraising, taking dead aim at the nonprofit sector. It is easy to see why a patent covering these types of claims is neither unique, novel, nor in the best interests of nonprofit organizations."
NIA members currently include (listed alphabetically): Beaconfire Consulting, CharityWeb, CitySoft, Convio, GetActive, Mindshare Interactive Campaigns, Itero!, Public Interest Data, Inc., RightClicks and ROI Solutions.
The
[Nonprofit Innovation Alliance](http://www.nonprofitinnovation.org) was established in January 2005 to help foster access to innovative technology for charitable groups so they can effectively utilize the Internet for fundraising, advocacy, event management and other mission-critical activities. Members of the alliance include leading companies that provide technology products, services and/or consulting to nonprofits. Admission is open to all interested technology and service providers. Nonprofits can participate by pledging their support for the NIA's goals.
Contact:
Shabbir Safdar
Acting Secretary
Nonprofit Innovation Alliance
ssafdar@mindshare.net
Asks Court to Reaffirm Freedom of the Press
San Jose, CA - Today the Electronic Frontier Foundation (EFF) filed an
[appeal](http://www.eff.org/Censorship/Apple_v_Does/20050322_writ_petition.pdf) in [a case](http://www.eff.org/Censorship/Apple_v_Does/) that has broad implications for the rights of reporters to protect the confidentiality of their sources.
Last week, a California Superior Court judge ruled that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to Apple Computer, Inc. The court rejected EFF's request for an order to protect the identities of sources for the online news sites AppleInsider and PowerPage.
This landmark case was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. But the court did not restrict its ruling to online journalists, instead holding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.
In its request for an appeal, EFF argues that the First Amendment cannot be so easily waived. Many important news leaks, such as those revealing the dangers of cigarette smoking, can be claimed to be trade secrets by the companies seeking to stop them. Apple must also demonstrate that it has done an exhaustive search elsewhere for the information it seeks before targeting journalists with court orders. There is no evidence that Apple has done such an exhaustive search.
"The California courts have a long history of supporting and protecting the freedom of the press," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeal will now get the opportunity to correct a ruling that endangers all journalists."
"The Superior Court’s ruling exalted statutory trade secret protection over constitutional rights, misapplied the test for when the constitutional reporter’s privilege may be overcome, and ignored the Stored Communications Act altogether," said Kevin Bankston, EFF staff attorney and Bruce J. Ennis Fellow. "There are strong protections for email privacy under federal law, especially when that mail is held by an ISP. Every email service provider should be concerned about correcting this dangerous precedent."
The case is the result of Apple suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid."
Contacts:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Organization Launches Two-Week Celebration of Betamax-Protected Devices
San Francisco, CA - The Electronic Frontier Foundation (EFF) yesterday kicked off a
[new campaign](http://www.eff.org/legal/cases/betamax/countdown/) to celebrate the technological diversity protected by the Supreme Court's 1984 " [Betamax ruling](http://www.eff.org/legal/cases/betamax/)," which found that vendors cannot be held liable for contributory copyright infringement if their products are capable of significant noninfringing (legal) uses. EFF will post information about a copying technology with substantial legal uses every weekday leading up to the March 29th Supreme Court hearing in [MGM v. Grokster](http://www.eff.org/grokster). Noninfringing products include everything from the VCR and email to blogs and silly putty.
If the Supreme Court overturns the
[Ninth Circuit ruling](http://www.eff.org/IP/P2P/MGM_v_Grokster/20040819_mgm_v_grokster_decision.pdf) in the Grokster case, the Betamax shield could be destroyed or modified in ways that threaten innovation. Vendors could be held liable for the infringing activities of their customers, and many companies could be sued out of existence. EFF is co-counsel for StreamCast Networks, one of the defendants in the Grokster case.
With its celebration of the technologies protected under the Betamax shield, EFF hopes to call the public's attention to the strong link between innovation and legal protections for inventors and entrepreneurs.
Contacts:
Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org
Ren Bucholz
Activism Coordinator
Electronic Frontier Foundation
ren@eff.org
EFF Asking California Appellate Court to Intervene
Santa Clara - Today Santa Clara County Superior Court Judge James Kleinberg
[ruled](http://www.eff.org/Censorship/Apple_v_Does/20050311_apple_decision.pdf) that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to attorneys from Apple Computer, Inc. The court rejected a request for an order to protect the confidentiality of these sources and other unpublished materials.
The Electronic Frontier Foundation (EFF), along with co-counsel Thomas Moore III and Richard Wiebe, is representing the journalist, and will be asking the California Appellate Court to intervene.
"We're disappointed that the trial court ignored the Supreme Court's requirement that seeking a journalist's confidential sources be a 'last resort' in civil discovery," said EFF Staff Attorney Kurt Opsahl. "Instead, the court asserts a wholesale exception to the journalist's privilege when the information is alleged to be a trade secret."
"This is a broad-brush ruling that threatens journalists of all stripes," said EFF Legal Director Cindy Cohn.
This landmark case was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. But the court did not restrict its ruling to online journalists, instead deciding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.
Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information, but these have not yet been issued and were not ruled on today.
[Ruling](http://www.eff.org/Censorship/Apple_v_Does/20050311_apple_decision.pdf) [PDF] [case summary](http://www.eff.org/Censorship/Apple_v_Does/case_summary.pdf) [PDF] [more about Apple v. Does](http://www.eff.org/Censorship/Apple_v_Does/).
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Experts on Development Won't Be Heard at Crucial Meetings
Geneva - Last week, the World Intellectual Property Organization (WIPO) announced that it will shut out most public interest organizations at two important meetings devoted to intellectual property and development. As a result, WIPO delegates from 182 nations will discuss these issues without hearing from many of the world's best-qualified experts.
Scheduled for next month, two WIPO "Development Agenda" meetings will focus on the impact of copyright, patent, and other intellectual property rights regimes on the developing world. Without the public interest organizations, the discussions will be heavily weighted toward major motion picture studios, broadcasters, pharmaceutical giants, and other powerful interests that want to expand copyright and patent law.
"This is an embarrassment for WIPO," explained EFF European Affairs Coordinator Cory Doctorow. "Settling the debate by locking one side out of the building isn't the way the UN is supposed to work. We love the Development Agenda -- it's supposed to be a new direction for WIPO. A one-sided discussion isn't a new direction, though. It's just more of the same."
These meetings are a response to the proposal put forward by Brazil and Argentina in the wake of the Geneva Declaration on the future of WIPO, which was signed by hundreds of individuals and public interest non-governmental organizations (NGOs), including the Electronic Frontier Foundation (EFF).
Most public interest groups have only recently begun participating in WIPO and are not yet permanently accredited by the organization, since the accreditation process takes a year and they have always been able to participate as "ad hoc" observers in the past. On March 2, however, the International Bureau Secretariat advised EFF that only those NGOs that are currently accredited as "permanent" observers at WIPO will be allowed to attend these meetings. As a result, the bulk of civil society will be barred from attending.
"The Secretariat's exclusion of ad hoc observer NGOs raises fundamental questions about WIPO's commitment to a full and thorough discussion of the important issues in the Development Agenda proposal," said EFF International Affairs Director Gwen Hinze.
EFF is accredited as
[a WIPO permanent observer](http://www.eff.org/IP/WIPO/) and will be attending the meetings. The group will be [reporting](http://www.eff.org/deeplinks) on the proceedings and will attempt to represent the viewpoints of some of the other public interest groups that are being excluded from the process.
Contacts:
Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org
Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
gwen@eff.org
Rights of Online Journalists Hang in the Balance
San Jose - A Santa Clara County Superior Court judge today said that he would take under consideration a motion brought by the Electronic Frontier Foundation (EFF) that asked the court to protect three online journalists from having to reveal the identities of their confidential sources to attorneys from Apple Computer, Inc. The judge promised a written decision soon.
Apple is
[suing several unnamed individuals](http://www.eff.org/Censorship/Apple_v_Does/), called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the Internet service provider (ISP) for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.
EFF lawyers, along with co-counsel Thomas Moore III and Richard Wiebe, argued this morning that these online reporters' confidential sources and unpublished material are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment.
The court was interested in the question of whether online reporters are legitimate journalists, but for most of the hearing, the judge assumed that they were journalists and examined whether the reporter's shield should apply in this case. Under the First Amendment, the reporter's privilege is qualified -- it does not protect reporters under all circumstances. But subpoenas to journalists are always a last resort. The hearing examined whether Apple had overcome this qualified privilege to demonstrate that its need for the information was greater than the need to protect the confidentiality of these journalists' sources.
"We don't believe Apple has exhausted all methods of getting this information," said EFF Staff Attorney and Bruce J. Ennis Fellow Kevin Bankston. "Apple hasn't subpoenaed any of its employees the way it subpoenaed our clients' ISP. Nor has it deposed any of its employees in the case."
Added EFF Staff Attorney Kurt Opsahl, "We're pleased that the court is taking the time to consider how important it is to protect these journalists' sources if we want to maintain the free flow of information that is vital to a democratic society and a free press."
If the motion is denied, EFF will ask the California Court of Appeals to intervene.
Contacts:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
San Jose, CA - This Friday, the Electronic Frontier Foundation (EFF) will face attorneys for Apple Computer in a hearing to determine whether three independent online journalists will be given the same legal protections as journalists who work for traditional media publications.
Apple is
[suing](http://www.eff.org/Censorship/Apple_v_Does/) several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the Internet service provider (ISP) for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.
In the first case of its kind, EFF will argue that these online reporters' confidential sources and unpublished material are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. The hearing will take place Friday, March 4, at 10:00 a.m. at the Santa Clara County Superior Court, 191 North First Street, San Jose. Press are welcome to attend.
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Legislation Would Ban Tracking Devices in Public ID Documents
NOTE: This is a press release from the ACLU of Northern California. EFF is recirculating it for your information.
San Francisco, CA - The ACLU, the Electronic Frontier Foundation, and the Privacy Rights Clearinghouse support
[legislation introduced by Senator Joe Simitian](http://aclunc.org/cyber/050223-radioID.pdf) that would prohibit identity documents issued by the state, including driver's licenses and library cards, from containing a contactless integrated circuit or other device that can broadcast personal information or enable that information to be scanned remotely.
"This is all about individual privacy, personal safety and financial security," said Senator Joe Simitian. "SB 682 ensures that state and local government will be part of the solution, not part of the problem."
The legislation was introduced days after a company in Sutter, California withdrew its pilot program from an elementary school amidst parents outcry who did not want their children tagged like "inventory." The school district introduced the mandatory use of Radio Frequency Identification tags (RFIDs) to track the students' movements. The students were required to wear the ID badges that included the device along with the student's name, photo, grade, school name, class year and the four-digit school ID number.
Jeffrey and Michele Tatro, parents of a Sutter elementary student who had to wear the mandatory RFID said: "We fully support this legislation that will protect families throughout California from having to go through what we did – seeing our children tagged like inventory or cattle."
"In light of what happened in Sutter, California, we think it is especially important that this bill be passed to protect the privacy and security of all Californians," said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU of Northern California. "No person should ever be forced to carry an RFID tag. It violates fundamental rights to privacy, it is demeaning, and it threatens our physical and economic security."
The Identity Information Protection Act of 2005 (SB 682), would prohibit any identity document created by the state, county, or municipal government, from containing a contactless integrated circuit or other device that can broadcast an individual's name, address, telephone number, date of birth, race, religion, ethnicity, nationality, photograph, fingerprint, social security number and any other unique personal identifier or number.
"The signals broadcast by this type of badge can be picked up by anyone with the technology to read it, which allows a child's identity and location to be pinpointed with ease. This does not increase security, it lessens it," said Pam Noles, a policy associate for the ACLU of Southern California. "In Sutter, these badges compromised the safety of the elementary school students and parents weren't even given the option to consent to their use."
Lee Tien of the Electronic Frontier Foundation added: "Radio Frequency Identification (RFID) tags are a very dangerous technology for privacy, especially when used in ID cards. It allows unauthorized people to access personal information. This bill represents a good first step in managing this problem."
"Senator Simitian's bill provides vital protection for all Californians. Individuals who are required to carry government issued IDs should not be put in a situation where that document enables them to be monitored and tracked," said Beth Givens, founder and executive director of the Privacy Rights Clearinghouse.
Learn more about
[RFIDs](http://www.eff.org/Privacy/Surveillance/RFID/).
Contacts:
Stella Richardson
Media Relations Director
ACLU of Northern California
srichardson@aclunc.org
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org
Discussion with Defendants and Friends-of-the-Court on the Day Briefs Are Filed
Washington, DC - The Electronic Frontier Foundation (EFF) and Washington, DC-based Public Knowledge will host a press conference on Tuesday, March 1 to discuss briefs filed by defendants and friends-of-the-court that day in
[MGM v. Grokster](http://www.eff.org/IP/P2P/MGM_v_Grokster/). The case, which will be argued before the US Supreme Court on March 29, concerns whether manufacturers of peer-to-peer file-sharing software Grokster and StreamCast (makers of Morpheus) should be held liable for the copyright infringements of their users.
Media professionals attending this event will hear from the defendants in the case, attorneys, and representatives from several groups that have filed friend-of-the-court (amicus) briefs. Amici supporting the defendants include venture capitalists, consumer electronics companies, law professors, consumer groups, economists, and technology researchers.
The press conference will take place Tuesday, March 1, at 2:00 p.m. EST. Journalists are invited to attend the live event at the offices of Public Knowledge (1875 Conn. Ave, NW #650, Washington, DC) or phone in via teleconference.
Confirmed attendees include:
* Fred von Lohmann, Electronic Frontier Foundation, counsel for Streamcast, one of the peer-to-peer companies being sued
* Mike Weiss, CEO of Streamcast
* Michael Page, attorney for Grokster
* Gigi Sohn, president of Public Knowledge
* Mark Cooper, Consumer Federation of America
* Gary Shapiro, president of the Consumer Electronics Association
* Ed Black, president of Computer and Communications Industry Association
Contacts:
Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org
Annalee Newitz
Policy Analyst / Media Coordinator
Electronic Frontier Foundation
annalee@eff.org
Apple Agrees to Delay Subpoenas Until March 4 Hearing
San Jose - After negotiations with the Electronic Frontier Foundation (EFF), Apple agreed on Friday to extend the deadline on a subpoena it issued to an online journalist's Internet service provider (ISP) until after a hearing that will determine whether the subpoena is legal under the First Amendment and California's reporter's shield law. The subpoena seeks information about the journalist's confidential sources and unpublished notes for an article about a future Apple product.
On March 4, EFF will meet Apple's attorneys in Santa Clara County Superior Court to argue that the subpoena and others like it are unlawful because online journalists are protected by the same "reporter's privilege" laws that shield print journalists from having to reveal their confidential sources and unpublished notes. EFF will ask that the court issue a protective order making it official that journalists for AppleInsider and PowerPage do not have to respond to subpoenas seeking confidential news sources.
Apple is
[currently suing](http://www.eff.org/Censorship/Apple_v_Does/) several "John Does" for allegedly leaking trade secrets about a product code-named "Asteroid" to the online journalists. After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find the person who told the journalist about "Asteroid."
At the March 4 hearing EFF will argue that the reporter's privilege extends to information stored by third parties such as a reporter's email provider. It will urge the court to reject Apple's attempt do an "end run" around the reporters privilege by subpoenaing the journalist's ISP rather than the journalist himself.
"The reporter's privilege against disclosing confidential sources protects web publishers like AppleInsider and PowerPage just as it protects newspapers and TV networks," said EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. "If the reporter's privilege is to continue to protect the free flow of information in the digital age, it must apply to reporters' confidential communications even when they are held by third-party Internet service providers."
Contact:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Public Comment Welcome at Feb. 28 Meeting About E-voting Machines
Texas - The ACLU and the Electronic Frontier Foundation (EFF) recently won a preliminary injunction in their lawsuit against the state of Texas concerning whether the Texas Open Meetings Act applies to voting technology certification meetings of the state's election examiners. As part of this victory, Texas will hold its first-ever public meeting discussing proposed voting systems. Any vendor who wants to sell a system in Texas, or even ship an upgrade to its existing software, is required to go through the Texas certification process.
The public meeting will be held on Monday morning, February 28, from 8:30 a.m. until noon, in the 2nd floor conference room of the Rusk Building (208 E. 10th St., Austin). Products from three vendors will be discussed: Diebold, ES&S, and AccuPoll. The proposed AccuPoll system includes a ballot printer. If certified, it would be the first "voter-verifiable paper ballot" electronic voting system available in Texas.
Following each vendor's presentation there will be a public comment period. Members of the public may speak for five minutes, including asking questions of the vendors or examiners. The meeting will focus on how the examiners determine whether or not any vendor's product meets state requirements.
"We're hoping that this meeting will open the door to more public access to the voting systems selection process in Texas, and will support reform efforts being made in the Texas legislature," said Dan Wallach, a professor of computer science at Rice University and expert in voting system security issues.
"Elections need to become more transparent across the board," added Matt Zimmerman, staff attorney for EFF. "Not only does election technology need to permit voters to verify their votes, the process for selecting that technology needs to be open to public scrutiny. While this is a small step forward, and much work remains to be done, it is nevertheless an important step for the voters of Texas."
Check
[here](http://eff.org/Activism/E-voting/) for more information about E-voting.
Contact:
Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
EFF Asks Court to Protect Academic and Competitive Studies
Washington, DC - Three consumer advocacy groups including the Electronic Frontier Foundation (EFF) asked the Supreme Court today to protect scientific researchers from patent-based legal threats. The case, Merck v. Integra, deals specifically with information researchers submitted to the Food and Drug Administration regarding a potential cure for cancer. But it raises broader questions about whether patent owners can stop academic researchers and inventors from studying patented inventions in order to research or improve upon them.
In their
[friend-of-the-court brief](http://www.eff.org/IP/merck_v_integra_amicus.pdf), EFF, Public Knowledge, and the Consumer Project on Technology argued that patent law allows researchers the freedom to make and use patented products for the purpose of furthering academic study. They also argued that experimentation on patented items for the purpose of creating new inventions is also allowed -- as long the patented products aren't sold by the researchers.
"Patent law was created to help spread knowledge and spur innovation," said Jason Schultz, staff attorney at EFF. "Allowing patent owners to shut down important scientific research flies in the face of that purpose."
"The Court has the opportunity here to do tremendous good for society, by making clear that scientists have always been and remain free to perform research -- and competitors to innovate -- without being subject to the threat of patent infringement litigation or the tax of patent licenses," noted Joshua Sarnoff of American University's Glushko–Samuelson Intellectual Property Law Clinic, counsel of record on the brief.
The Supreme Court will hear arguments on the case this spring, likely in April, and issue a decision by mid-summer.
Contact:
Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
EFF Releases HD PVR Cookbook and Build-In Kit
San Francisco - Today the Electronic Frontier Foundation (EFF) announced the next stage in its challenge to the Federal Communications Commission's
["Broadcast Flag"](http://www.eff.org/broadcastflag) technology mandate. The organization released a step-by-step guide, the ["HD PVR Cookbook,"](http://www.eff.org/broadcastflag/cookbook/) that teaches people how to build a high-definition digital television (HDTV) recorder unaffected by the technological constraints of the Broadcast Flag. In addition, EFF is encouraging people to protest the FCC rule by holding Build-Ins -- gatherings around the country to build unfettered HDTV recorders and experience first-hand the kind of innovation stifled by the government mandate.
The Broadcast Flag, which places copy controls on DTV signals, is aimed at stopping people from making digitally perfect copies of television shows and redistributing them. Yet it also stops people from making perfectly legitimate personal copies of broadcasts. More disturbing, the Broadcast Flag will outlaw the manufacture and import of a whole host of TiVo-like devices that send DTV signals into a computer for backup, editing, and playback. After the Broadcast Flag regulations go into effect, all personal video recorder (PVR) technologies must be Broadcast Flag-compliant and "robust" against user modification -- and that means, once again, that the entertainment industry is trying to tell you what you can do with your own machines.
Now individuals can fight back by
[hosting a Build-In](http://www.eff.org/broadcastflag/cookbook/buildin.php) before the Broadcast Flag goes into effect on July 1, 2005. EFF held [the first Build-In](http://wendy.seltzer.org/photos/mythtv/build-in/) at its offices in late January, inviting a number of local programmers, TV fans, and bloggers to try out the Cookbook and test-bake their own HDTV recorders using standard computers equipped with HD tuner cards. The results were smashing: the dozen attendees created five working PVRs over the course of the day, using the KnoppMyth distribution of the open-source MythTV software package. Groups who want to host their own Build-Ins can contact EFF for a "Throw Your Own Build-In" kit, which includes a hard copy of the HD PVR Cookbook, a KnoppMyth CD-ROM, and (of course!) free EFF t-shirts and stickers.
EFF releases its technological challenge to the Broadcast Flag on the same day that the organization and other civil liberties groups challenge the FCC in the courtroom. In ALA v. FCC, the groups -- including the American Library Association and Public Knowledge -- argue that the FCC has overstepped its authority in mandating the Broadcast Flag and that the rule should be struck down.
"Even as we're suing the FCC to stop this interference with technological innovation, we're also helping television watchers to get off the couch and build their own fully capable PVRs," said EFF Special Projects Coordinator Wendy Seltzer, who organized the Build-In. "Every MythTV built helps demonstrate the creative development that may be cut off by bad regulation."
Contacts:
Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org
Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org
Victory for Students, Parents and Civil Liberties Groups
NOTE: This is a press release from the ACLU of Northern California that EFF is passing along for your information.
San Francisco - The Sutter-based company InCom announced last night, at a packed special school district meeting, that it would end its pilot program that required students to wear radio frequency identification badges that tracked the students' movements. The company pulled out when parents and civil liberties groups mobilized to end the program. On February 7, the ACLU of Northern California (ACLU-NC), Electronic Frontier Foundation (EFF), and the Washington-based Electronic Privacy Information Center (EPIC) sent a letter to the school district urging the school officials to end the program after being contacted by the parents.
"We are pleased that InCom is pulling out -our children never should have been tagged like pieces of inventory or cattle," said Michele Tatro, one of the parents that fought to end the tracking program. "The RFID tags violated the students' privacy, they were demeaning, and it put them in danger."
"Monitoring children with RFID tags is a very bad idea. It treats children like livestock or shipment pallets, thereby breaching their right to dignity and privacy they have as human beings. Any small gain in administrative efficiency and security is not worth the money spent and the privacy and dignity lost," said Cédric Laurant, Policy Counsel with EPIC.
Dawn Cantrall, parent of a 7th grader added: "We are proud that we stopped it here in Sutter and we will continue to fight to make sure that no child is ever forced to have an RFID badge. As parents, it is our duty to keep our children safe and it is not safe to have tracking devices in student badges."
"This is a tremendous victory for the students and families of Sutter," said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU-NC. "However, this is not just an issue affecting school children. The potential use of RFIDs in other identity documents, such as driver's licenses and medical cards, should be of concern to all Californians. RFIDs in identity documents is an issue that requires a statewide response and we plan to encourage legislative action on this front," she added.
"We're happy for the kids in Sutter, and grateful to those parents who stood up for family privacy and security. We hope it will be a wake-up call to parents and kids across the nation," said Lee Tien of EFF.
The tracking program was introduced on January 18th without any notification to the parents. Students in the small farm town of Sutter were required to wear ID cards around their necks with their picture, name, grade, school name, class year and four-digit school ID number and the RFID tags. Parents only found out about the program when their children came home wearing the tracking devices.
[Here](http://www.eff.org/Privacy/Surveillance/RFID/) is more information about RFIDs.
Contacts:
Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org
Stella Richardson
Media Relations Director
ACLU of Northern California
srichardson@aclunc.org
New White Paper Outlines How Click-Through Agreements Erode Privacy, Fundamental Liberties
San Francisco - Today the Electronic Frontier Foundation (EFF) released a
[white paper](http://eff.org/wp/eula.php) warning consumers about how they can be harmed by end user license agreements (EULAs) for consumer electronics and online services. Many EULAs contain terms that damage consumer interests, including invitations for vendors to snoop on users' computers, prohibitions on publicly criticizing the product in question, and bans on customizing or even repairing purchased devices.
"Overbroad EULAs are one of the greatest threats to consumer rights in the high tech industry," said Annalee Newitz, EFF policy analyst and author of the white paper. "Few people realize that simply visiting a website or downloading a software update may constitute 'agreeing' to a EULA that permits third parties to monitor your communications or allows a vendor to dictate what you can or cannot do with the product you've bought. Clicking the 'I Agree' button may mean clicking away your privacy, freedom of speech, or other rights."
EULAs, often called "click-through agreements," have become ubiquitous in the technology industry. While they are supposed to bind consumers to strict terms dictated by vendors, consumers don't negotiate them, don't sign them, and in many cases can't even read them until after they've bought the product, taken it home, and opened up the package.
EFF's white paper, "Dangerous Terms – A User's Guide to EULAs," comes at a key juncture in the case of
[Davidson (commonly known as Blizzard) v. Internet Gateway](http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/), a lawsuit that tests whether EULAs can override public protections under federal copyright law such as the fair use doctrine. Tomorrow, lawyers for Blizzard will file an appeal brief arguing that three open source programmers violated Blizzard Entertainment's EULA by creating bnetd, a free game server whose creation was a fair use under copyright law. EFF is co-counsel to the defendants in the case, which is currently on appeal in the Eighth Circuit.
EFF is also in the process of devising legal strategies to challenge EULAs. This white paper is intended to educate the public, but also to serve as a call to arms for consumers who want to fight unfair terms in EULAs. EFF invites people who have been harmed by EULA terms, or who have been threatened with lawsuits for violating terms in EULAs, to contact EFF with their stories.
Consumers harmed by EULAs can contact EFF at: EULAharm@eff.org
Contact:
Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org
BayFF Event to Feature Cool Gizmo Demos, Discussion of Legal Threats to Inventors
San Francisco - The Electronic Frontier Foundation (EFF) invites the public to join EFF staff members next week in a discussion and celebration of high-tech innovation. The
[event](http://www.eff.org/bayff/) is part of EFF's BayFF series and will feature product demos of cutting-edge digital media gadgets from San Francisco Bay Area companies [Elgato Systems](http://www.elgato.com), [Slim Devices](http://www.slimdevices.com), and [Sling Media](http://www.slingmedia.com). There will also be a panel discussion with EFF experts about how the public can join the fight to protect the pro-innovation environment that makes these high-tech inventions possible.
For the past 20 years, the "Betamax doctrine" has protected innovators from lawsuits and encouraged them to create exciting new applications for older technologies. But with the Supreme Court hearing of
[MGM v. Grokster](http://www.eff.org/IP/P2P/MGM_v_Grokster/) at the end of March, we may see big changes in the law, with potentially dire consequences for innovation. How do we ensure that technologists keep the freedom necessary to create the next-generation iPods and TiVos?
This BayFF gathering will be held on Tuesday, February 22, from 7:00 to 9:30 p.m., at
[111 Minna](http://www.111minnagallery.com), a gallery/nightclub in downtown San Francisco. The evening will also include refreshments and a cash bar. Come to learn, mingle, and meet the EFF staff and friends. This event is free and open to the public. Because 111 Minna serves alcohol, attendees must be over 21.
Contact:
Katina Bishop
Projects Coordinator
Electronic Frontier Foundation
katina@eff.org
Seeks to Stop Apple From Undermining Reporter's Privilege
Santa Clara County, CA - Today the Electronic Frontier Foundation (EFF) asked a California Superior Court for a
[protective order](http://eff.org/Censorship/Apple_v_Does/memo_of_points.pdf) that would prevent Apple Computer from forcing three online journalists to identify their confidential sources and hand over unpublished materials. EFF, serving as co-counsel for the journalists, argues that online journalists are protected by the same "reporter's privilege" laws that shield print journalists from having to reveal the names of anonymous sources.
The
[case](http://www.eff.org/Censorship/Apple_v_Does/) began in December 2004, when Apple obtained a court order allowing the company to issue subpoenas aimed at discovering the identities of 20 "Does" who allegedly leaked information about upcoming Apple products to AppleInsider.com and PowerPage.org. After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find out who told the journalist about an upcoming product code-named "Asteroid."
"Rather than confronting the issue of reporter's privilege head-on, Apple is going to this journalist's ISP for his emails," said EFF Staff Attorney Kurt Opsahl. "This undermines a fundamental, First Amendment right that protects all reporters. If the court lets Apple get away with this, and exposes the confidences gained by these reporters, potential confidential sources will be deterred from providing information to the media, and the public will lose a vital outlet for independent news, analysis, and commentary."
Supporting EFF in this argument are Professor Tom Goldstein, Director of the Mass Communication Program and former Dean of the Journalism School at the University of California at Berkeley, and Dan Gillmor, noted Silicon Valley journalist and founder of Grassroots Media Inc., both of whom filed declarations stating their expert opinion that the writers for PowerPage and Apple Insider are journalists just like the writers for traditional newspapers and magazines. Acting as co-counsel with EFF are Thomas Moore III of Tomlinson Zisko LLP and Richard Wiebe of the Law Office of Richard Wiebe.
In its request for the protective order, EFF points out that reporter's privileges protect the anonymity of sources regardless of whether third parties hold a journalist's records.
Contacts:
Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Logfinder Helps Eliminate Unwanted Logging of Personal Data
San Francisco, CA - Today the Electronic Frontier Foundation (EFF) released logfinder, a software tool to help people reduce the unnecessary collection of personal information about computer users. Often computer network servers automatically log information about who has visited a website and when, or who has sent and received email. Such data tells a lot about a user's browsing and email habits and could be used in privacy-invasive ways. Moreover, log data must be turned over to government entities with court orders and can be subpoenaed by opposing sides in court cases.
By finding unwanted log files, logfinder informs system administrators when their servers are collecting personal data and gives them the opportunity to turn logging off if it isn't gathering information necessary for administering the system.
Logfinder was conceived by security consultant Ben Laurie and written by EFF Staff Technologist Seth Schoen. It's intended to complement EFF's recent white paper,
["Best Practices for Online Service Providers,"](http://www.eff.org/osp) in which the organization argues that administrators should remove as many logs as possible and delete all personally identifying data from them.
"People who choose to follow our recommendations in the white paper might not know what kinds of logs they have," said Schoen. "Logfinder is an example of one way a system administrator could become aware of the presence of logs, as well as discover sensitive information being collected in known logs."
Download
[logfinder](http://www.eff.org/osp/logfinder-0.1.tar.gz).
Contacts:
Seth Schoen
Staff Technologist
Electronic Frontier Foundation
seth@eff.org
Chris Palmer
Technology Manager
Electronic Frontier Foundation
chris@eff.org
Parents and Civil Liberties Groups Urge School District to Terminate Use of Tracking Devices
**NOTE: This is a press release from the ACLU of Northern California that EFF is recirculating for your information.**
San Francisco - Parents in a northern California public school district and civil liberties groups are urging a school district to terminate the mandatory use of Radio Frequency Identification tags (RFIDs) by students. Several civil liberties groups, including the ACLU of Northern California (ACLU-NC), Electronic Frontier Foundation (EFF), and the Electronic Privacy Information Center (EPIC) sent a
[letter](http://eff.org/Privacy/Surveillance/RFID/schools/ACLU_EFF_EPIC_letter.pdf) today expressing alarm at the Brittan School District's use of mandatory ID badges that include a RFID device that tracks the students' movements. The device transmits private information to a computer on campus whenever a student passes under one of the scanners. The ID badges also include the student's name, photo, grade, school name, class year and the four-digit school ID number. Students are required to prominently display the badges by wearing them around the neck at all times.
"Forcing my child to be tracked with a RFID device – without our consent or knowledge – is a complete invasion of our privacy," said Michael and Dawn Cantrall. "Our 7th grader came home wearing the ID badge prominently displayed around her neck– if a predator wanted to target my child, the mandatory school ID card has just made that task easier." The Cantralls filed a formal complaint against the Brittan Elementary School Board in Sutter, California on January 30th after meeting with several school officials.
In a letter dated February 7, sent to the Brittan Board of Trustees, the civil liberties groups "urge the school board to recognize the serious safety and civil liberties implications" and call the for the School Board to "terminate this ill-advised test immediately."
"We are sending the letter today because a School Board meeting is scheduled for tomorrow night and we want to make sure that the District reconsiders the issue," said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU-NC. "RFID technology is inappropriate for use in schools. The badges jeopardize the safety and security of children by broadcasting identity and location information to anyone with a chip reader and subjects students to demeaning tracking of their movements."
"The monitoring of children with RFID tags is comparable to the tracking of cattle, shipment pallets, or very dangerous criminals in high-security prisons. Compelling children to be constantly tracked with RFID-trackable identity badges breaches their right to privacy and dignity as human beings. Forcing children to wear badges around their necks displaying such sensitive information as their name, picture, grade and school exposes them to potential discrimination since the name of their school may disclose their religious beliefs or social class," said Cédric Laurant, Policy Counsel with EPIC.
Jeffrey and Michele Tatro, parents of a thirteen-year-old student at Brittan Elementary School, added: "It is our goal that no child in the United States be tagged or tracked. We want it to be stopped here, in Sutter California, and we don't want any child to be tracked anywhere. Our children are not pieces of inventory."
"It is dehumanizing to force these children to wear RFIDs, and their parents are rightfully outraged," said Electronic Frontier Foundation senior staff attorney Lee Tien. "We are doing everything we can to support the parents in this fight to protect student privacy."
Get more
[information](http://eff.org/Privacy/Surveillance/RFID/schools/) about RFIDs in schools.
Contacts:
Stella Richardson
Media Relations Director
ACLU of Northern California
srichardson@aclunc.org
Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org
Requires "Sunshine" in Process of Choosing E-voting Machines
Texas - A Texas court
[ruled](http://eff.org/Activism/E-voting/20050126_letter_ruling_tx.pdf) today that state voting examiners may no longer bar the public from their meetings. In the case, ACLU of Texas v. Connor, the plaintiffs argued that the Texas Open Meetings Act should apply to meetings of the voting examiners. These meetings are used to decide what kinds of electronic voting machines will be used in upcoming elections. The Electronic Frontier Foundation (EFF) was co-counsel in the case.
"The court rightly rejected Texas' policy of shutting the public out of the processes for selecting voting technologies. The need for public trust in our election systems cannot be overstated, and this is a terrific step forward for the voters of Texas," said EFF Staff Attorney Matt Zimmerman.
The voting examiners are responsible for studying electronic voting machines and other voting technologies and recommending to the Secretary of State which systems should be certified for use in Texas. In the past few years, the Secretary of State routinely adopted the recommendations of the panel yet rebuffed efforts by the public to observe the proceedings, claiming that the panel is not subject to Texas' Open Meetings Act.
"I'm not at all surprised at this ruling," added Jon Lebkowsky of EFF-Texas, one of the plaintiffs in the case. "What surprised me was that the meetings weren't open in the first place!"
Recently, the Texas Safe Voting Coalition obtained videotapes of previous meetings, including one involving Diebold Election Systems, that suggest a lack of rigor and failure to address proper security and certification compliance issues.
"This ruling allows specialists in areas including computer security, accessibility, and minority rights to offer their own skills to complement the state's official election examiners," said Dan Wallach, an assistant professor in the Department of Computer Science at Rice University and outspoken critic of poorly designed electronic voting systems.
More on e-voting
[here](http://www.eff.org/Activism/E-voting/).
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Project Demonstrates How Bad Law Ruins the Environment for Innovation
San Francisco - A new project of the Electronic Frontier Foundation (EFF) highlights the way misguided laws and lawsuits can pollute the environment for technological innovation.
["Endangered Gizmos"](http://www.eff.org/endangered) is a natural history of technologies from the Betamax VCR to filesharing software that have been threatened or extinguished through ruthless litigation. The "Endangered Gizmos List" gives readers the vital statistics on a host of gadgets, along with steps they can take to save those that haven't yet been killed off.
The list also includes devices that have been saved by good laws. The VCR, for example, was rescued from extinction by the Supreme Court's landmark ruling in Universal v. Sony, which shielded the Sony Betamax VCR from being declared unlawful simply because people could use it to infringe copyright.
"Endangered Gizmos" debuts the same day that the opening briefs are being filed in MGM v. Grokster, a Supreme Court case the outcome of which could render extinct several currently legal technologies. The public-education project complements EFF's work defending StreamCast Networks in that case.
"This isn't about saving one or two geeky gadgets. It's about fostering technological development by letting products be designed by technologists, rather than Congress and the courts," said EFF Staff Attorney Wendy Seltzer. "What we're seeing is the beginning of the extinction of both current and future gadgets, due to a mix of proposed law, litigation, and overreaching use of existing law. Lawsuits are destroying future technological progress by killing off today's best innovations."
EFF will continue to post new profiles of at-risk technologies on the Endangered Gizmos website on a regular basis. "We hope the ranks of 'saved' gizmos will grow faster than the 'endangered' list," said Seltzer. "But until laws stop killing innovation, we'll be counting the bodies."
Contact:
Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org
Washington, DC - The US Supreme Court set the date for the oral argument in
[MGM v. Grokster](http://www.eff.org/IP/P2P/MGM_v_Grokster/) for March 29, 2005, in Washington, DC. EFF is defending StreamCast Networks, the company behind the Morpheus peer-to-peer (P2P) software, against 28 of the world's largest entertainment companies.
The companies first brought this lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products in 2001, hoping to obtain a legal precedent that would hold all technology makers responsible for the infringements committed by the users of their products. The entertainment companies lost in District Court, then lost again on appeal to the Ninth Circuit Court of Appeals.
The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.
On March 29, the Supreme Court will hear oral arguments from both sides. A final ruling is expected by the end of July 2005.
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
EFF Demands Answers from DOJ about PATRIOT Act Surveillance
Washington, DC - Today the Electronic Frontier Foundation (EFF) filed a Freedom of Information Act (FOIA)
[request ](http://www.eff.org/Privacy/Surveillance/Terrorism/PATRIOT/FOIA_Request.pdf) with the FBI and other offices of the US Department of Justice, seeking the release of documents that would reveal whether the government has been using the USA PATRIOT Act to spy on Internet users' reading habits without a search warrant.
At issue is PATRIOT Section 216, which expanded the government's authority to conduct surveillance in criminal investigations using pen registers or trap and trace devices ("pen-traps"). Pen-traps collect information about the numbers dialed on a telephone but do not record the actual content of phone conversations. Because of this limitation, court orders authorizing pen-trap surveillance are easy to get -- instead of having to show probable cause, the government need only certify relevance to its investigation. Also, the government never has to inform people that they are or were the subjects of pen-trap surveillance.
PATRIOT expanded pen-traps to include devices that monitor Internet communications. But the line between non-content and content is a lot blurrier online than it is on phone networks. The DOJ has said openly that the new definitions allow pen-traps to collect email and IP addresses. However, the DOJ has not been so forthcoming about web surveillance. It won't reveal whether it believes URLs can be collected using pen-traps, despite the fact that URLs clearly reveal content by identifying the web pages being read. EFF made its FOIA request specifically to gain access to documents that might reveal whether the DOJ is using pen-traps to monitor web browsing.
"It's been over three years since the USA PATRIOT Act was passed, and the DOJ still hasn't answered the public's simple question: 'Can you see what we're reading on the Web without probable cause?'" said Kevin Bankston, EFF Staff Attorney and Bruce J. Ennis Equal Justice Works Fellow. "Much of PATRIOT is coming up for review this year, but we can never have a full and informed debate of the issues when the DOJ won't explain how it has been using these new surveillance powers."
The law firm of DLA Piper Rudnick Gray Cary assisted EFF in preparing the FOIA request and will help with any litigation if the DOJ fails to respond.
Contact:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Lawsuit Pushes for Public Access to Meetings Where E-voting Machines Are Evaluated
Austin, TX - On January 19, a Texas court is scheduled to determine whether to force the state's voting examiners to open their meetings to the public. The ACLU of Texas and a Texas voter filed a lawsuit last year, ACLU of Texas v. Geoffrey S. Connor, demanding that the public be admitted to meetings where the examiners decide which electronic voting machines to certify. While these groups waited for a response from the court, the examiners held yet another closed meeting on January 4 and 5.
"There's no technical reason for keeping these meetings closed to the public," said Dan Wallach, a Rice University computer science professor and outspoken critic of electronic voting systems. "By allowing outside experts in security, accessibility, and election procedure to attend the meetings, the voting system vendors will receive better feedback from the ultimate users of the machines. Likewise, if outside experts find problems, the state can demand the vendors address those problems before the machines are used in the field."
Recently, the Texas Safe Voting Coalition obtained videotapes of previous meetings, including one involving Diebold Election Systems, that suggest a lack of rigor and failure to address properly security and certification compliance issues. If the court grants a temporary injunction on the 19th, the voting examiners will have to admit the public to certification meetings.
"Closed meetings about these controversial voting machines create a troubling perception," said Jon Lebkowsky, President of the Electronic Frontier Foundation-Austin. "How can a citizen trust a certification process that's hidden from view? This sort of thing is exactly why we have an Open Meetings Act."
If the injunction is granted, the Texas Secretary of State has promised that the state will host a "public forum" where officials will discuss for the first time the issues they considered in their private meeting earlier this month.
"Transparency in voting systems is one of the most important ways we ensure that our votes count," said Cindy Cohn, Legal Director of the Electronic Frontier Foundation (EFF), which is serving as co-counsel in the case. "Transparency needs to start from when voting machines are chosen and end with the final vote tally, including any necessary recounts."
The voting examiners are responsible for studying electronic voting machines and other voting technologies and recommending to the Secretary of State which systems should be certified for use in Texas. In the past few years, the Secretary of State has routinely adopted the recommendations of the panel, yet he has rebuffed efforts by the public to observe the proceedings, claiming that the panel is not subject to Texas' Open Meetings Act.
Here's the original
[complaint](http://www.safevoting.org/blog/archives/PetitionOpenMeetings.doc). [More](http://www.eff.org/Activism/E-voting/) on e-voting issues.
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Outcome of BnetD Case Could Eliminate Software that Extends the Gaming Experience
Eighth Circuit - Yesterday the Electronic Frontier Foundation (EFF) filed a
[brief ](http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20050112_Opening_Brief_of_Defendants.pdf) in the Eighth Circuit Court of Appeals arguing that federal law forbids videogame corporation Blizzard from interfering with gamers' ability to create new products to enhance their game experience. EFF is co-counsel for the defendants in Davidson v. Internet Gateway, a case on appeal from a district court in St. Louis. The district court held that an open-source software gaming server called [BnetD](http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/) was unlawful because its makers had violated Blizzard's End User License Agreement (EULA) and portions of the Digital Millennium Copyright Act (DMCA).
BnetD lets gamers play popular Blizzard titles like Warcraft with other gamers on servers outside of Blizzard's Battle.net service. To create BnetD, a group of volunteer programmers reverse-engineered a protocol in Battle.net, using the information to give players access to the BnetD server. Blizzard argues that this act violated a clause in its EULA that forbids reverse-engineering. In its brief, EFF argues that federal copyright law, which allows reverse-engineering in cases of fair use, trumps Blizzard's EULA. Because the BnetD programmers created a product that is interoperable with Blizzard games, their actions fall squarely within the definition of fair use. EFF also argues that the DMCA specifically allows for fair use reverse-engineering.
If it stands, the lower court's decision would make it unlawful in most cases to reverse-engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own.
"The Eighth Circuit's decision will strongly impact the health of the videogame industry," said Jason Schultz, an EFF staff attorney working on the case. "If companies are able to use EULAs and the DMCA to eliminate competition in the marketplace, videogame consumers will suffer, as will consumers of electronics in other industries affected by this ruling."
Along with EFF, Paul Grewal and Richard Lin of Day Casebeer Madrid & Batchelder LLP are serving as pro bono co-counsel to the BnetD programmers. Counsel has asked the Eighth Circuit to hear oral arguments in the case, but the court has yet to decide if it will hear them.
Contacts:
Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
Lawsuit Challenges Berkeley Election Officials in Measure R Recount
Berkeley, CA - A close proposition referendum will come under court examination in a case that highlights major problems with conducting a recount using Diebold electronic voting machines. Berkeley Measure R, the Patient's Access to Medical Cannabis Act of 2004, lost by only 191 votes after the regular election on November 2, 2004. Under the law, the proponents were entitled to seek a recount, which they did.
Instead of attempting to ensure that the votes were counted correctly, however, Alameda County election officials engaged in a "going through the motions" exercise where they merely ran the same electronic vote data through the same counting machines and, predictably, reached the same result. They did not consult the machines' audit logs, redundant memories, or any other relevant materials. Yesterday, the county announced that the recount had failed to change the result. They altered the final margin of defeat to 166 votes, attributing the change to absentee and provisional ballots -- the electronic voting machine count remained the same.
Measure R proponents Americans for Safe Access filed a lawsuit on December 30 challenging the actions of county election officials in handling the electronic voting machine portion of the recount. This suit now awaits a hearing.
"California law guarantees every voter the right to a recount and requires election officials to produce for public review all materials relevant to that recount," said Gregory Luke, attorney at the Santa Monica firm of Strumwasser & Woocher, which represents the plaintiffs Americans for Safe Access, and three individual Berkeley voters. "Because the Diebold machines purchased by Alameda County do not retain any ballots for the purpose of a recount, election officials must, at the very least, look at the information produced by the system's existing security features to give voters some circumstantial evidence that the machines performed properly and that vote data was not damaged or altered. Alameda County's refusal to allow the public to examine the audit logs and redundant memory renders the so-called 'recount' they conducted utterly meaningless."
"While it was easy to watch the recount of the paper ballots to make sure every vote was counted, the recount from the electronic voting machine was simply a 'rerun' of the original election results and gave us no assurance that the results were correct," added Debby Goldsberry of Americans for Safe Access.
"Recounts are one of the most important ways we detect vote fraud and error," said Matt Zimmerman, staff attorney for the Electronic Frontier Foundation, which is consulting on the case. "Even after Californians have voter-verified paper trails in 2006, it will be important to ensure that audit logs, redundant memory, and other security measures are checked during a recount, along with the paper trails. Banks and credit card issuers use these measures to make sure our financial transactions are safe. Our votes deserve at least as much protection."
Americans for Safe Access is the largest national grassroots coalition working to protect the rights of patients and doctors to legally use marijuana for medical purposes. Measure R would have relaxed zoning laws for dispensaries, set up a peer review committee to oversee operations at the city's dispensaries, and replaced the city's current limit with one linked to a patient's need as defined by his or her physician.
A hearing in Alameda Superior Court is currently set for March 2.
Contacts:
Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Gregory Luke
Strumwasser & Woocher LLP
gluke@strumwooch.com
Hilary McQuie
Americans for Safe Access
+1 510 486-8083 (office)
EFF Defends Rights of Reporters Who Published Asteroid News Stories on Blogs
Santa Clara, CA - Only weeks before Macworld, the nation's biggest annual trade show devoted to Apple products, Apple sent legal threats to the publishers of the Mac-centric weblogs
[AppleInsider](http://www.appleinsider.com) and [PowerPage](http://www.powerpage.org/cgi-bin/WebObjects/powerpage.woa/wa/about) for posting information about a product code-named ["Asteroid."](http://news.com.com/2061-1040_3-5465155.html?tag=nl<br />
) Apple-watchers believe this product will be announced at Macworld. The Electronic Frontier Foundation (EFF) is representing the publishers to protect their right to keep confidential the identities of the people who supplied them with the information.
On December 13, Apple
[filed suit](http://www.eff.org/Censorship/Apple_v_Does/) against "Does 1-20" in a Santa Clara court. The company obtained a court order that allows it to issue subpoenas to AppleInsider and PowerPage for the names of the "Does" who allegedly leaked the information in question. EFF is defending the publishers against these subpoenas, arguing that the anonymity of bloggers' sources is protected by the same laws that protect sources providing information to journalists.
"Bloggers break the news, just like journalists do. They must be able to promise confidentiality in order to maintain the free flow of information," said EFF Staff Attorney Kurt Opsahl. "Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society."
"I am very disappointed by Apple's behavior and its new policy of issuing legal threats to its best customers," added Jason O'Grady, publisher of PowerPage. "Is corporate paranoia really more important than the First Amendment?"
Contacts:
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Ruling in Charter Case Smashes DMCA Subpoena Powers
The Eighth Circuit Court of Appeals issued a
[decision](http://www.eff.org/IP/P2P/Charter/033802P.pdf) today that will stop entertainment corporations from gaining access to the names of people using peer-to-peer (P2P) networks unless the companies file lawsuits against them and furnish actual evidence of copyright infringement.
The case was sparked by a series of subpoenas sent by the Recording Industry Association of America (RIAA) to Missouri-based Internet service provider (ISP) Charter Communications, Inc. The record companies claimed that these subpoenas, which demanded that Charter identify customers accused of offering infringing music on P2P networks, were authorized by the Digital Millennium Copyright Act (DMCA).
The Electronic Frontier Foundation (EFF), along with 21 other groups, including the American Civil Liberties Union (ACLU), the Consumer Federation of America (CFA), and the Computer & Communications Industry Association (CCIA), filed a
["friend of the court" brief](http://www.eff.org/IP/P2P/Charter/20040126_amicus.pdf) in the Charter case, urging the Eighth Circuit to determine that the same strong protections applied to anonymous speech in other contexts also apply when copyright infringement is claimed but has not yet been proven. In a victory for privacy and anonymity, the Eighth Circuit determined that DMCA subpoenas could not be used to get this information.
EFF Staff Attorney Wendy Seltzer noted that the RIAA has already changed its tactics for the better in current suits against filesharers. In these new cases, record companies generally file suit against "John Does." Said Seltzer, "In the 'Doe' lawsuits RIAA members are currently filing, a judge oversees the discovery process and can help protect ISP customers before their names are revealed." EFF has filed amicus briefs in several of the Doe cases, and some judges have limited the record labels' discovery of identities through mass lawsuits.
In December 2003, the DC Circuit ruled that the RIAA could not use the DMCA's non-judicial subpoenas to obtain subscriber identities from ISP Verizon Internet Services, Inc. "Charter should be congratulated for following in the footsteps of Verizon in standing up for the privacy of its users," said EFF Legal Director Cindy Cohn. The US Supreme Court rejected the RIAA's appeal of the Verizon case. Today's Eighth Circuit decision is an explicit endorsement of the DC Circuit's ruling.
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org
San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce that it has been funded by the
[Omidyar Network](http://www.omidyar.net), an organization that invests to help catalyze social change. This investment represents a partnership between two groups sharing key values and beliefs, and, ultimately, the goal of making a positive difference in the world.
"EFF's efforts are instrumental in preserving people's civil liberties as they extend to the online world," said Doug Solomon, Vice President of Investments at Omidyar Network. "The Internet, by design, is 'of the people, by the people, for the people,' and innovation depends on it staying that way."
"We hope that this is the beginning of a long and productive relationship," said EFF Director of Development Terri Forman. "Omidyar Network partners are dedicated to empowering innovation through bottom-up efforts. This perspective is very much a part of EFF's values."
Added EFF Executive Director Shari Steele, "We're pleased to join the many excellent groups that have already partnered with Omidyar Network."
About Omidyar Network
[Omidyar Network](http://www.omidyar.net) seeks out investments that are "of the people, by the people, for the people." The Network is founded on the simple core belief that every individual has the power to make a difference. The Network exists for one single purpose: So that more and more people discover their own power to make good things happen. Since June 2004, Omidyar Network has funded efforts in a number of areas: microfinance, bottom-up media, open source, intellectual property, and electronic voting.
Contacts:
Terri Forman
Development Director
Electronic Frontier Foundation
terri@eff.org
Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org
Civil Liberties Group to Support Development of Anonymous Internet Communications System
San Francisco - Today the Electronic Frontier Foundation (EFF) announced that it is becoming a sponsor of
[Tor](http://tor.eff.org), a technology project that helps organizations and individuals engage in anonymous communication online. Tor is a network-within-a-network that protects communication from a form of surveillance known as "traffic analysis."
Traffic analysis tracks where data goes and when, as well as how much is sent, rather than the content of communications. Knowing the source and destination of Internet traffic allows others to track a person's behavior and interests. This can impact privacy in obvious and secondary ways. For example, an e-commerce site could choose to charge you more for particular items based on your country or institution of origin. It could also threaten your job or physical safety by revealing who and where you are.
"EFF is a great organization to work with," said Roger Dingledine, Tor's project leader, who, along with Nick Mathewson, is also a core developer. "EFF understands the importance of anonymity technology for everyone -- from the average web surfer, to journalists for community sites like Indymedia, to people living under oppressive regimes. With their support and experience, we can focus on making Tor useful and usable by everyone."
"The Tor project is a perfect fit for EFF, because one of our primary goals is to protect the privacy and anonymity of Internet users," said EFF Technology Manager Chris Palmer. "Tor can help people exercise their First Amendment right to free, anonymous speech online. And unlike many other security systems, Tor recognizes that there is no security without user-friendliness -- if the mechanism is not accessible, nobody will use it. Tor strikes a balance between performance, usability, and security."
Using Tor can help people anonymize web browsing and publishing, instant messaging, Secure Shell (SSH) protocol, and more. Tor also provides a platform on which software developers can build new applications with built-in anonymity, safety, and privacy features.
[Non-technical introduction](http://tor.eff.org/overview.html) to Tor. [Technical introduction](http://tor.eff.org/cvs/tor/doc/design-paper/tor-design.html) to Tor.
Contact:
Chris Palmer
Technology Manager
Electronic Frontier Foundation
chris@eff.org
The US Supreme Court today granted certiorari in
[MGM v. Grokster](http://www.eff.org/IP/P2P/MGM_v_Grokster/). The Court will hear oral arguments in the case in March 2005. The Electronic Frontier Foundation (EFF) represents one of the defendants in the case, StreamCast Networks, makers of the Morpheus peer-to-peer (P2P) software application.
"The copyright law principles set out in the Sony Betamax case have served innovators, copyright industries, and the public well for 20 years," said Fred von Lohmann, senior intellectual property attorney at EFF. "We at EFF look forward to the Supreme Court reaffirming the applicability of Betamax in the 21st century."
EFF, ACLU Ask California Supreme Court to Restore Free Speech Protections for Internet Users and Service Providers
California - Last week the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Northern California (ACLU) filed a
[friend-of-the-court brief](http://www.eff.org/Censorship/SLAPP/Defamation_abuse/Barrett_v_Clark/20041124_BarrettAmicusFinal.pdf) in a case that could undermine a federal statute protecting the free speech of bloggers, Internet service providers, and other individuals who use the Internet to post content written by others. The case in question is a libel suit filed against women's health advocate Ilena Rosenthal after she posted a controversial opinion piece on a Usenet news group. The piece was written not by Rosenthal, but by Tim Bolen, a critic of plaintiff Terry Polevoy.
In their brief, EFF and the ACLU argue that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others. Similar attempts to eliminate the protections created by Section 230 have almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors. The case is being reviewed by the California Supreme Court.
Lawyers for the plaintiffs argue that Rosenthal is liable because posting the comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit. If the court finds in favor of the plaintiffs, the implications for free speech online are far-reaching. Bloggers could be held liable when they quote other people's writing, and website owners could be held liable for what people say in message boards on their sites. The end result is that many people would simply cease to publish or host websites. In its brief, EFF argues that "the specter of civil liability chills the speech" of Internet service providers and users, and will inevitably lead to "protective self-censorship."
"Every other jurisdiction addressing Section 230 has given effect to Congress' broad protections and Internet speech has flourished as a result," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeals upset this settled law and we are simply asking the California Supreme Court to set things right."
"Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," said ACLU Staff Attorney Ann Brick. "The vitality of the Internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable."
Contacts:
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Stella Richardson
Media Relations Director
ACLU Northern California
srichardson@aclunc.org
Northern California - A federal judge in California has put a roadblock in front of the movie studios' lawsuits targeting filesharers.
Last week, members of the Motion Picture Association of America (MPAA) filed eleven lawsuits against hundreds of people they accused of using file-sharing networks to share infringing copies of movies. They sued groups of "Does"
identified by numerical IP address and requested discovery of names from the users' ISPs. A Northern District of California judge found this bulldozer process improper, ordering the case to be put on hold for all but one of the defendants.
Judge William Alsup
[ruled ](http://www.eff.org/IP/P2P/MPAA_v_ThePeople/20041123_20thv12_order_severing_cases.pdf) that because claims against the 12 defendants were unrelated, yoking the defendants together into one big case was improper. "Such joinder may be an attempt to circumvent the filing fees by grouping
defendants into arbitrarily-joined actions but it could nonetheless appear improper under Rule 20," the order states. The Electronic Frontier Foundation has filed friend-of-the-court briefs objecting to similar misjoinder in many of the cases filed by the Recording Industry Association of America (RIAA) against alleged infringers.
"This decision helps to give due process rights to the Internet users accused of infringement," said EFF Staff Attorney Wendy Seltzer. "Lumping them together makes it more difficult for everyone to defend against these claims." EFF is also concerned about the movie studios' failure to produce evidence of infringement against even Doe #1 in this case.
Contact:
Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org
New "Pseudo Copyright" for Broadcasters Will Harm the Global Public Interest
Geneva - This week, the World Intellectual Property Organization (WIPO) will hold a
[committee meeting](http://www.wipo.int/meetings/en/details.jsp?meeting_id=6312) to debate the merits of its proposed "Treaty on the Protection of Broadcasting Organizations." The Electronic Frontier Foundation (EFF) will be there to urge delegates to reject aspects of the treaty that would impoverish the public domain and thwart innovation.
EFF European Affairs Coordinator Cory Doctorow will present a
[letter](http://www.eff.org/IP/WIPO/?f=20041117_open_letter.html) to the committee on behalf of 20 technology companies and organizations that oppose including [new webcasters' rights](http://www.wipo.int/documents/en/meetings/2004/sccr/pdf/sccr_11_3.pdf) in the treaty.
"This coalition shatters the illusion that there is a technology consensus on this issue," said Doctorow.
The new pseudo-copyright for webcasters would curtail the public's ability to archive news footage or re-use broadcast material that is in the public domain. It would also require that all media players be closed-source, proprietary, and subject to the oversight and approval of the movie studios. EFF is joining several other non-government organizations (NGOs) in proposing an
[alternative draft](http://www.cptech.org/ip/wipo/ngo-broadcast-proposal-v2.8.pdf) of the treaty -- one that targets the problem of signal theft rather than adds these new rights.
Doctorow will also speak at the meeting about
[how digital rights management (DRM) technologies hinder technological progress](http://www.eff.org/IP/WIPO/20041113_TPM_SCCR.pdf). The proposed treaty would add DRM provisions for broadcasters similar to those the much-criticized US Digital Millennium Copyright Act (DMCA) gives to copyright holders.
In October, WIPO made a positive move by adopting a
["development agenda"](http://www.southcentre.org/info/southbulletin/bulletin88/bulletin88-04.htm) proposed by a number of developing countries and NGOs. This agenda makes explicit the organization's responsibility for considering the social and economic impact of its decisions. Doctorow will urge the organization to apply the public-interest principles outlined in the agenda to its consideration of DRM.
Doctorow will be live-blogging the WIPO meeting at the
[EFF website](http://www.eff.org/deeplinks).
Contacts:
Gwen Hinze
Staff Attorney
Electronic Frontier Foundation
gwen@eff.org
Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org
Washington, DC - A national coalition of voting rights and computer security experts will hold a post-election press conference to provide a preliminary analysis of electronic voting problems and solutions, and their implications for increasing voters' confidence in the legitimacy of elections.
Speakers will be:
- Kim Alexander, California Voter Foundation
- Lillie Coney, National Committee for Voting Integrity/Electronic Privacy Information Center
- David Dill, Ph.D., Verified Voting Foundation
- Will Doherty, Verified Voting Foundation/Election Incident Reporting System
- Chellie Pingree, Common Cause
- Matt Zimmerman, Electronic Frontier Foundation
WHEN: Thursday, November 18, 2004, 10:30 a.m. to 12:00 p.m.
WHERE: Cabinet Room, Beacon Hotel and Corporate Quarters (formerly Governor's House Hotel) 1615 Rhode Island Avenue, N.W., Washington, D.C. (Metro Stop: Dupont Circle or Farragut North)
The Election Verification Project is a coalition of technology, legal and voting rights organizations promoting transparency and accountability in the voting process. The Project advances reforms that reduce computerized voting risks, and fosters public confidence in the integrity and accuracy of the electoral process.
The California Voter Foundation is a nonprofit, nonpartisan organization promoting and applying the responsible use of technology to improve the democratic process. CVF-NEWS is a free, electronic newsletter featuring news and updates about the California Voter Foundation's projects and activities.
Contacts:
Faye Anderson
Election Verification Project
(718) 369-6059 cell
Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Georgia - Electronic Frontier Foundation, Public Citizen, the American Civil Liberties Union, and ACLU Georgia filed an
[amicus brief](http://www.eff.org/IP/P2P/RIAA_v_ThePeople/JohnDoe/20041115_Arista-Memo.pdf) yesterday supporting Cox Communication, Inc.'s efforts to protect the rights of its Internet customers. Cox moved to quash a subpoena from several record companies in a case called Arista Records, Inc. v. Does 1-100, which seeks the identities of Cox subscribers. Cox does not provide Internet service in Georgia, where the 100 Does were sued.
The amicus brief notes that it is unfair to force people living outside of Georgia to come to Georgia to defend their rights and also that it is unfair for the record companies to sue 100 people in the same lawsuit simply because it saves the record company money.
"Cox is taking an important step to protect the privacy of its customers," said EFF Staff Attorney Wendy Seltzer. "It's a basic matter of due process that Internet users should not have to seek counsel across the country in order to protect their right to anonymous speech."
EFF, Public Citizen, and the ACLU have joined in several briefs
[in similar cases](http://www.eff.org/IP/P2P/riaa-v-thepeople.php) arguing that due process must not be given short shrift in the record industry's lawsuit campaign.
The motion picture industry has started filing copycat suits across the country that are similarly flawed.
Contact:
Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org
Government Claims Need for Secrecy, Rebuffs Call for Open Access
San Antonio, TX - Today the Electronic Frontier Foundation (EFF) filed a
[reply brief](http://www.eff.org/Censorship/Indymedia/20041115_Indymedia_Reply.pdf) in a federal court in Texas supporting its motion to unseal a secret court order. That order had led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists.
EFF filed its reply after the United States Attorney's Office in San Antonio, Texas, filed
[an opposition brief](http://www.eff.org/Censorship/Indymedia/20041109_indymedia_govt_response.pdf) urging the federal court to refuse EFF's request to unseal. The opposition brief argued that secrecy was required to protect "an ongoing criminal terrorist investigation" and that the confidentiality provisions of a Mutual Legal Assistance Treaty (MLAT) trumped the rights of Indymedia in this case.
This marks the first time that the federal government has formally admitted to the secret order's existence. In its reply brief, EFF reminded the government that treaties are limited by the Bill of Rights, including the First Amendment right of access to court proceedings.
On October 7, the federal government
[secretly seized Indymedia's servers](http://www.eff.org/Censorship/Indymedia/) from San Antonio-based Rackspace Managed Hosting. Issued at the request of a foreign government, the seizure order resulted in more than 20 IMC websites and 10 streaming radio feeds being taken offline. Neither Rackspace nor the government has formally identified the foreign country that initiated the request, but language quoted in the government's refusal of EFF's first request matches a [US treaty with Italy](http://www.usextradition.com/italy_mlat.htm). Morena Plazzi, a deputy public prosecutor in Bologna, admitted that she requested server logs from Indymedia, but denied requesting a seizure.
"There are serious questions about whether the government or Rackspace overreached in responding to Italy's request," said Kurt Opsahl, EFF Staff Attorney. "The public needs to see the order so we can understand what went wrong and take steps to prevent this unconstitutional silencing of protected speech from happening again."
"The government's brief tacitly admits Italy issued the order, and the Italian government admits it sought information from Indymedia's servers," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "By keeping the order secret, the government appears to be trying to hide serious procedural errors that led to the seizure, rather than legitimately protecting the secrecy of a 'terrorism' investigation."
Contacts:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
EFF White Paper Reports on Collateral Damage to Free Expression in the Fight Against Spam
San Francisco - Today the Electronic Frontier Foundation (EFF) released a white paper (
[HTML](http://www.eff.org/wp/?f=SpamCollateralDamage.html) -
"When tools designed to prevent unwanted email also prevent wanted email from being delivered, or when anti-spam tools favor well-funded speakers over others, something fundamental to the health of Internet communication has been broken," write the authors of the paper, EFF Legal Director Cindy Cohn and EFF Policy Analyst Annalee Newitz, in the introduction. The paper goes on to explain how anti-spam technologies, such as blocklists, server-side filtering, bonded sender programs, and email authentication schemes like Sender-ID and DomainKeys, are often misused.
But there are solutions to the problem. In a section on best practices, EFF suggests ways that Internet Service Providers (ISPs) and other organizations handling email delivery can stop spam while preserving free speech. Recommendations include putting spam filtering preferences under the control of end users and making anti-spam mechanisms like blocklists more transparent. Also included are guidelines for email list managers that will reduce the likelihood that their mail will get incorrectly labeled as spam.
"Anti-spam technologies protect us against unwanted messages, but we need to do more to ensure that they don't also prevent us from receiving wanted speech," said Newitz. "Overbroad anti-spam measures have a significant impact on noncommercial mailing lists used by parents, political organizers, artists, and others. When anti-spam measures prevent people from participating in such communities, we need to rethink how we use them."
"Noncommercial mailing lists are one of the truly important free speech tools on the Internet, yet increasingly they face unfair, unseen, and unaccountable barriers due to overbroad and reckless anti-spam efforts," added Cohn. "If the government treated free speech this poorly, the First Amendment would be in serious trouble. We should demand better from those in the anti-spam community."
EFF has worked with several groups running noncommercial email lists that have signed on to the paper as a way of showing their support for its findings and recommendations. Now that the paper has been released to the public, EFF is calling on more email list owners and ISPs to sign on and change their practices to ensure that while they take steps to protect against spam, they also protect free speech.
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org
Expanded Powers for Law Enforcement Are Dangerously Vague, Invasive
Earlier this week, the Electronic Frontier Foundation (EFF) filed
[comments ](http://www.eff.org/Privacy/Surveillance/CALEA/20041108_CALEAComments.pdf) with the Federal Communications Commission (FCC) objecting to the agency's plan to expand the reach of a law that forces communications service providers to build surveillance backdoors into their networks.
The
[Communications Assistance to Law Enforcement Act](http://www.eff.org/Privacy/Surveillance/CALEA/) (CALEA), passed in 1994, forced telephone companies to redesign their network architectures to make wiretapping easier. It expressly did not regulate data traveling over the Internet. But earlier this year, law enforcement agencies petitioned the FCC to expand CALEA's reach to cover broadband providers so that it would be easier for law enforcement to tap Internet "phone calls" via Voice over Internet Protocol (VoIP) applications such as Vonage, as well as online "conversations" using various kinds of instant messaging (IM) programs like AOL Instant Messenger (AIM). The FCC responded with a "notice of proposed rulemaking" (NPRM), which proposes to introduce surveillance technology mandates to broadband Internet access and "managed" VoIP.
In its comments, EFF argues that this transformation in CALEA goes against the letter and the spirit of the law as it was originally written, which expressly ruled out information services like broadband.
"The NPRM relegates Congress' exclusion of information services to so much spilt ink," read the comments. Moreover, EFF argues, the rationale that law enforcement uses to justify its request -- that broadband has "significantly replaced" the telephone network -- is a misrepresentation that opens the door for CALEA to cover just about anything. "Any service that arguably replaces any portion of the prior telephony regime must look down the barrel of CALEA compliance."
In addition, the technological changes required by an expanded CALEA would undermine Internet security and subject new technologies to government review before they can be adopted for use with current Internet devices.
"Law enforcement already has the legal and technological means to access communications on the Internet," said EFF Staff Attorney Kurt Opsahl. "Expanding CALEA to cover broadband communication is not only unnecessary, it will retard innovation while depriving people of their privacy and security on the Internet."
Reply comments are due December 7.
Contact:
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a
[friend-of-the-court brief](http://www.eff.org/legal/cases/US_v_Councilman/20041112_Councilman_Brief.pdf) in a case that could have a profound effect on the privacy of Internet communications.
The brief argues that the decision in
[US v. Councilman](http://www.eff.org/legal/cases/US_v_Councilman/), soon to be reheard by the full First Circuit, should be overturned. A panel of First Circuit judges previously ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their knowledge or consent.
The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent to his customers from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this interception did not violate federal law, stating that "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."
Authored by law professor and online privacy expert Orin Kerr, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), the American Library Association (ALA), the American Civil Liberties Union (ACLU), and the Center for National Security Studies. These groups argue that the earlier Councilman decision disrupts the traditional understanding of Internet surveillance laws and raises significant constitutional questions under the Fourth Amendment.
"The First Circuit's original decision effectively rewrote the field of Internet surveillance law in ways that Congress never intended," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."
The original panel decision has been withdrawn pending the First Circuit's rehearing of the case, which will take place in December.
Contact:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org
Funding for Charities Should Not Be Tied to Screening
Washington, DC - The Electronic Frontier Foundation (EFF) today joined the American Civil Liberties Union (ACLU) and a number of other nonprofit organizations in filing for an injunction from the US District Court in Washington, DC, to stop the federal government from requiring the charities to use blacklists in order to receive payroll donations from federal employees. The groups argue that the new requirement, which was implemented without any notice or public comment period, is not authorized by statute and violates the First and Fifth Amendments.
The Combined Federal Campaign (CFC) enables federal employees to contribute easily to their favorite nonprofit organizations through automatic payroll deductions. In 2003 alone, this program brought over $248 million to thousands of charities. Earlier this year, the government for the first time began requiring all organizations participating in the CFC to certify that they have screened every employee and expenditure against a series of blacklists created by the government on the basis of secret information. Charities that refuse to sign the certification cannot participate in the CFC, even if they meet all other requirements.
"The government can't force charities to become its 'anti-terrorism enforcers' simply because federal employees donate to those charities," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "EFF refuses to violate the privacy of its clients and employees by screening them against secretly compiled blacklists. It was wrong during the McCarthy era, and it's wrong now."
EFF participated in the CFC program for two years prior to the blacklist certification requirement but withdrew from the program earlier this year in protest.
Contacts:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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