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EFFector Vol. 20, No. 25 June 25, 2007 editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 429th Issue of EFFector:

* Ten Years After ACLU v. Reno: Free Speech Still Needs
Defending
* Action Alert - Stop the National ID Expansion!
* Dangerous Ruling Forces Search Engine to Log Users
* Congress Set to Uncover Truth About NSA Spying Program
* Travelers Deserve Protection from Baseless Laptop
Searches
* Blogging WIPO: Broadcasting Treaty Deferred Indefinitely
* DVD Home Media Server, We Hardly Knew You
* Viacom Nets, Releases Another Fair Use Dolphin
* miniLinks (14): Former FISA Judge Criticizes Wiretap
Program
* Administrivia

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

Make a donation and become an EFF member today!
http://eff.org/support/

Tell a friend about EFF:
http://action.eff.org/site/Ecard?ecard_id=1061

effector: n, Computer Sci. A device for producing a desired
change.

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* Ten Years After ACLU v. Reno: Free Speech Still Needs
Defending

Online free speech faces many threats today, but the
Internet's incredible abundance and variety of expression
might never have blossomed to begin with if the first major
court battle had gone the wrong way.

Tuesday marks the ten-year anniversary of the U.S. Supreme
Court's landmark decision in Reno v. ACLU, which recognized
that free speech on the Internet merits the highest
standards of Constitutional protection. EFF participated as
both plaintiff and co-counsel in the case, which
successfully challenged the online censorship provisions of
the Communications Decency Act (CDA) of 1996. The Court's
decision -- its first involving the Internet -- was issued
on June 26, 1997.

The CDA fight was one of the first big rallying points for
online freedom. When the law passed, thousands of websites
turned their backgrounds black in protest. EFF launched its
"blue ribbon" campaign and millions of websites around the
world joined in support of free speech online. Even today,
you can find the blue ribbon throughout the Web.

EFF Senior Counsel David Sobel, who served as co-counsel in
the case, notes: "The Reno decision defined the First
Amendment for the 21st century. The Court wrote on a clean
slate and established the fundamental principles that
govern free speech issues in the electronic age."

EFF's work over the past ten years demonstrates that while
the technology might evolve, threats to online expression
persist and core First Amendment principles must be
vigilantly defended. The CDA was a crystal clear case of
unconstitutional government censorship, and the challenges
today are sometimes more complex. EFF's efforts today
include:

* Intermediaries: EFF fights to protect Internet
middlemen -- like hosting services, search engines, and
ISPs -- from overreaching liability, so that creators of
amazing free speech tools don't have to worry about being
held responsible for everything that Internet users say.
* "Fair Use": EFF defends "fair use" of copyrighted
material, including its ongoing campaign to counter bogus
copyright takedowns on YouTube and elsewhere.
* Bloggers' Rights: EFF promotes bloggers' rights
through litigation and distribution of a comprehensive
legal guide.
* Anonymous speech: EFF supports online anonymity,
primarily through representation of defendants in "John
Doe" lawsuits filed by large corporations and thin-skinned
public officials who want to intimidate their anonymous
critics.
* "Right to Know": EFF uses the Freedom of Information
Act to promote the public's "right to know" and facilitate
informed and open debate on technology and civil liberties
issues.

The fight against direct government censorship of online
speech continues, too. EFF continues to participate in the
pending litigation against the Children's Online Protection
Act (COPA), a slightly narrower but still gravely dangerous
version of the CDA that the Supreme Court has twice
enjoined.

While it can sometimes seem that there are more fronts than
ever in the fight for free speech online, the battles we
face today would be much, much harder without that first
victory in ACLU v. Reno. With your help, we'll fight to
make sure that ten years from now, we can look back and see
how today's battles helped pave the way for an even better
future online.

For the Reno v. ACLU decision:
nla_internal_1423469.jpg a news article on the "Turn the Web" black protest:
http://www.wired.com/wired/archive/4.05/scans.html

For the Blue Ribbon campaign:
http://www.eff.org/br/

For this post and more related links:
http://www.eff.org/deeplinks/archives/005335.php

Support EFF and become a member today!
http://www.eff.org/support/

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* Action Alert: Stop the National ID Expansion!

Thousands of individuals and sixteen states have already
told the federal government to dump the privacy-invasive
REAL ID Act, which would standardize drivers' licenses into
a national ID and create databases linking the records
together. But instead of listening to the public, members
of Congress are renewing their efforts to ram the unfunded
mandate down everyone's throats. A provision smuggled into
the major immigration reform bill would effectively force
every American to present a standardized national ID in
order to get a job and establish a huge "employment
verification" system filled with personal information.

The proposal is set for a floor vote next week -- call your
Senator now to stop the national ID expansion:
http://action.eff.org/site/Advocacy?id=303

This bill realizes one of our main fears about REAL ID --
once in place, uses of the IDs and database will inevitably
expand to facilitate a wide range of tracking and
surveillance activities. Remember, the Social Security
number started innocuously enough, but it has become a
prerequisite for a host of government services and been co-
opted by private companies to create massive databases of
personal information.

The proposed employment verification system is bound to
contain errors impacting millions of Americans, and, along
with inevitable delays implementing REAL ID, that could
present unnecessary hurdles when you apply for a job. The
verification system would also make your private
information more vulnerable to government misuse, security
breaches, and identity theft.

The more uses created for REAL ID, the harder it becomes to
get the Act off the books entirely. Tell your Senators to
fix this part of the immigration bill by supporting Senate
Amendments 1236 and 1441:
http://action.eff.org/site/Advocacy?id=303

To learn more about what's wrong with REAL ID, see EFF's
issue page:
http://www.eff.org/Privacy/ID/RealID/

For the ACLU's REAL ID webpage:
http://www.realnightmare.org/

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* Dangerous Ruling Forces Search Engine to Log Users

Public Interest Groups Urge Court to Block Radical
Expansion of Discovery Rules

San Francisco - The Electronic Frontier Foundation (EFF)
and Center for Democracy and Technology (CDT) urged a
California court Friday to overturn a dangerous ruling that
would require an Internet search engine to create and store
logs of its users' activities as part of electronic
discovery obligations in a civil lawsuit.

The ruling came in a copyright infringement lawsuit filed
by motion picture studios against TorrentSpy, a popular
search engine that indexes materials made publicly
available via the Bit Torrent file sharing protocol.
TorrentSpy has never logged its visitors' Internet Protocol
(IP) addresses. Notwithstanding this explicit privacy
policy, a federal magistrate judge has now ordered
TorrentSpy to activate logging and turn the logged data
over to the studios.

"This unprecedented ruling has implications well beyond the
file sharing context," said EFF Staff Attorney Corynne
McSherry. "Giving litigants the power to rewrite their
opponent's privacy policies poses a risk to all Internet
users."

The magistrate judge incorrectly reasoned that, because the
IP addresses exist in the Random Access Memory (RAM) of
TorrentSpy's webservers, they are "electronically stored
information" that must be collected and turned over to the
studios under the rules of federal discovery.

This decision could reach every function carried out by a
digital device. Every keystroke at a computer keyboard, for
example, is temporarily held in RAM, even if it is
immediately deleted and never saved. Similarly, digital
telephone systems make recordings of every conversation,
moment by moment, in RAM.

"In the analog world, a court would never think to force a
company to record telephone calls, transcribe employee
conversations, or log other ephemeral information," said
EFF Senior Staff Attorney Fred von Lohmann. "There is no
reason why the rules should be different simply because a
company uses digital technologies."

The decision also threatens to radically increase the
burdens that companies face in federal lawsuits,
potentially forcing them to create and store an avalanche
of data, including computer server logs, digital telephone
conversations, and drafts of documents never saved or sent.

The magistrate judge in the case has stayed her order while
TorrentSpy appeals the ruling. The case is Columbia
Pictures Industries v. Bunnell, No. 06-01093 FMC, pending
in the U.S. District Court for the Central District of
California before Judge Florence-Marie Cooper.

Read the full amicus brief:
http://www.eff.org/legal/cases/torrentspy/EFF_CDT_amicus.pdf

For this post:
http://www.eff.org/news/archives/2007_06.php#005334

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* Congress Set to Uncover Truth About NSA Spying Program

Vote to Authorize Subpoenas Sets Stage for Showdown Over
Illegal Surveillance

San Francisco - The Senate Judiciary Committee voted
Thursday to authorize subpoenas related to the National
Security Agency (NSA)'s domestic spying program, setting
the stage for a Congressional showdown over the
surveillance of millions of ordinary Americans. The
subpoenas demand certain legal documents that the
Administration has withheld despite repeated requests from
Congress.

"This subpoena authorization is a critical first step
toward uncovering the full extent of the NSA's illegal
spying and the role that telecommunications companies like
AT&T played in it," said EFF Staff Attorney Kevin Bankston.
"Considering that it's been almost six years since the NSA
started spying on Americans without warrants and over a
year since that spying was revealed publicly, these
subpoenas are long overdue. It's high time for Congress to
get to the bottom of this mess."

The Electronic Frontier Foundation (EFF) is suing AT&T for
illegally assisting in the NSA spying. The government has
asked the 9th U.S. Circuit Court of Appeals to dismiss
EFF's case, claiming that the lawsuit could expose state
secrets.

"Our case against AT&T includes evidence from a former
employee that points to a massive spying program impacting
millions of people -- a program far broader than the
government has admitted to," said Bankston. "Americans
deserve to know the truth about the NSA program."

For more on EFF's class-action lawsuit against AT&T:
http://www.eff.org/legal/cases/att/

For this post:
http://www.eff.org/news/archives/2007_06.php#005329

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* Travelers Deserve Protection from Baseless Laptop
Searches

EFF Urges Court to Protect Privacy at Border Crossings

San Francisco - The government should not search travelers'
computers at border crossings without suspicion, said the
Electronic Frontier Foundation (EFF) and the Association of
Corporate Travel Executives (ACTE) in an amicus brief filed
today in the 9th U.S. Circuit Court of Appeals.

Over the past several years, U.S. Customs Agents have been
searching and even seizing travelers' laptops when they are
entering or leaving the country if the traveler fits a
profile, appears to be on a government watch list, or is
chosen for a random inspection. The Supreme Court has ruled
that customs and border agents may perform "routine"
searches at the border without a warrant or even reasonable
suspicion, but EFF and ACTE argue that inspections of
computers are far more invasive than flipping through a
briefcase.

"Our laptop computers contain vast amounts of personal
information about our lives. You may do your banking on
your computer, for example, or send email to your doctor
about health concerns," said EFF Senior Staff Attorney Lee
Tien. "Travelers should not be subjected to
unconstitutionally invasive searches of their laptops and
other electronic devices just because they are crossing the
border."

The case in front of the 9th Circuit, United States v.
Arnold, arose out of a suspicionless "profile" search of
Michael Timothy Arnold's computer at Los Angeles
International Airport. The search uncovered evidence of
alleged child pornography, and Mr. Arnold moved to suppress
the evidence as the product of an unconstitutional search.
The district court ruled that the agents lacked a
reasonable basis to suspect Mr. Arnold of having committed
a crime, and the government appealed the ruling. Mr. Arnold
is represented by the Pasadena law firm of Kaye, Mc*** &
Bednarski, LLP. The EFF-ACTE amicus brief was prepared by
Arent Fox LLP.

For the full amicus brief:
http://www.eff.org/legal/cases/US_v_arnold/arnold_amicus.pdf

For this post:
http://www.eff.org/news/archives/2007_06.php#005324

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* Blogging WIPO: Broadcasting Treaty Deferred Indefinitely

Negotiations on the proposed WIPO Broadcasting Treaty ended
in Geneva on Friday with some welcome news. WIPO Member
States agreed to recommend that the WIPO General Assembly
postpone the high-level intergovernmental Diplomatic
Conference at which the draft treaty could have been
adopted, and move discussions back to regular committee
meetings, down a significant notch from the last two
"Special Session" meetings.

Apart from pulling the plug on a diplomatic conference that
seemed doomed for failure, Friday's decision also provides a
much-needed opportunity for WIPO to start focusing on other
initiatives, such as facilitating access to knowledge,
evaluating the impact of legally-enforced technological
protection measures on exceptions and limitations, and
Chile's 2004 proposal for mandatory exceptions and
limitations to copyright law for education, the disabled
and libraries and archives.

Read EFF's briefing paper on the latest treaty draft:
http://www.eff.org/IP/WIPO/broadcasting_treaty/EFF_wipo_briefing_paper_062007.pdf

Read the Open Letter to WIPO:
http://dearwipo.com/

For EFF's WIPO Broadcasting Treaty page:
http://www.eff.org/IP/WIPO/broadcasting_treaty/

For the entire update and related links:
http://www.eff.org/deeplinks/archives/005333.php

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* DVD Home Media Server, We Hardly Knew You

In April, a California court ruled that Kaleidescape did
not violate its contract with the DVD Copy Control
Association (DVD CCA) by distributing a device that rips
and plays DVDs. But now the DRM licensing authority, which
is mostly controlled by movie studios, is planning to
change the contract and more clearly forbid DVD ripping.

Make no mistake: the VCR, TiVo, iPod, and myriad other
technologies could have faced Kaleidescape's fate if the
entertainment industry had been able to infect TV and music
with DRM sooner. This is also the fate that awaits all
future television technologies if DRM is baked in thanks to
the broadcast flag and CableCARD.

For EFF's Broadcast Flag page:
http://www.eff.org/IP/broadcastflag/

For EFF's page on DRM for Digital Cable and Satellite
http://www.eff.org/IP/pnp/

Read the complete post:
http://www.eff.org/deeplinks/archives/005330.php

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* Sony Disconnects

In May 2004, Sony opened up its own store for selling
digital music: Sony Connect. From the start, the service
was plagued with self-inflicted woes. Thanks to Sony's use
of DRM and a proprietary music format (ATRAC), music bought
through Sony Connect could only be played on Sony's
expensive digital music players. And those devices came
loaded with software that was awkward and hard to use.

Not surprisingly, Sony is rumored to be pulling the plug on
Sony Disconnect, or at least downsizing it. In any case,
the problems of Sony's premiere music service make a point
that deserves emphasis: customers don't like having their
options limited and being herded into using poorly designed
technology.

Of course, these dangers exist whenever you buy DRMed music
from any vendor. You're locked into the limited array of
players that the DRM is compatible with, and, if that DRM
some day is entirely unsupported, you're out of luck.

Read EFF Activist Hugh D'Andrade's complete analysis and
related links:
http://www.eff.org/deeplinks/archives/005328.php

For EFF's "The Customer Is Always Wrong: A User's Guide to
DRM in Online Music":
http://www.eff.org/IP/DRM/guide/

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* Viacom Nets, Releases Another Fair Use Dolphin

When a company like Viacom sends more than 160,000 DMCA
takedown notices to YouTube, there is a risk that some fair
use "dolphins" will get caught along with the infringing
"tuna." Well, another "dolphin" got caught up in the DMCA
takedown driftnet.

Last week, Paramount Pictures (a unit of Viacom) apparently
sent a DMCA takedown notice to YouTube, resulting in the
removal of the hugely popular video "10 Things I Hate About
Commandments," an example of the new genre of movie trailer
mashups that has blossomed on YouTube.

So after the creators contacted EFF, we urged them to test
out the "dolphin hotline," which Viacom created after
getting into hot water for mistakenly taking down
MoveOn.org's "Stop the Falsiness" video.

Find out what happened in EFF Staff Attorney Fred von
Lohmann's complete post:
http://www.eff.org/deeplinks/archives/005327.php

Watch the video "10 Things I Hate About Commandments" on
YouTube:
http://www.youtube.com/watch?v=u1kqqMXWEFs

Read more about EFF's lawsuit against Viacom:
http://www.eff.org/legal/cases/moveon_v_viacom/

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* miniLinks
The week's noteworthy news, compressed.

~ Former FISA Judge Criticizes Wiretap Program
Judge Lamberth says "you can't trust the executive."
http://www.nytimes.com/2007/06/24/washington/24judge.html?ex=1340337600&en=17176b6b4f93cc82&ei=5090&partner=rssuserland&emc=rss

~ Video of Judge Lamberth's speech:
http://www.ala.org/ala/washoff/washevents/woannual/annualconfwo.cfm

~ Justice Dept. vs. States on Phone Privacy
Can the feds stop states from investigating whether telcos
helped the NSA spy on Americans?
http://www.latimes.com/news/printedition/asection/la-na-tap21jun21,1,7897952.story?coll=la-news-a_section

~ Google Transparency
Google's new Public Policy Blog discusses... Google's
Public Policy!
http://googlepublicpolicy.blogspot.com/

~ Google Asks Government to Fight Censorship
Are free speech restrictions also trade barriers?
http://www.examiner.com/a-794215%7EGoogle_Asks_Gov_t_to_Fight_Censorship.html

~ DRM-Free Sales Boom
EMI reports that sales of some albums are up as much as
350% now that MP3 tracks without DRM are available.
http://www.theinquirer.net/default.aspx?article=40443

~ DRM Rises from the Dead
The Blu-ray Disc Association is promoting the use of DRM on
DVDs.
http://www.engadgethd.com/2007/06/20/bd-drm-is-now-available-for-blu-ray

~ Googling for Downloads
Music downloaders are circumventing P2P restrictions at
universities by using Google instead.
http://www.slyck.com/news.php?story=1507

~ iPhone Lowdown
Preventng iPhone owners from installing software may hurt
their privacy.
http://www.educatedguesswork.org/movabletype/archives/2007/06/a_very_sweet_so.html

~ My Career as a TV Freeloader
A Slate article describes how to tap into the neighbor's
on-demand television.
http://www.slate.com/id/2167389

~ Censorship and the DMCA
How console manufacturers can shut down games they don't
like.
http://www.techliberation.com/archives/042509.php

~ An Obituary for Weedshare
A radical way to buy and share music that never took off.
http://www.openbusiness.cc/2007/06/11/weedshare-rip/

~ Vonage and Spam
Vonage is harvesting names from their refer-a-friend
program to send spam promotions.
http://www.damniwish.com/2007/06/vonage-spams-cu.html

~ CAN-SPAM With Nifty Web App
Mailinator enables you to retrieve email without providing
any personal data.
http://mailinator.com/

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
http://www.eff.org/

Editor:
Julie Lindner, Education Outreach Coordinator
julie@eff.org

Membership & donation queries:
membership@eff.org

General EFF, legal, policy, or online resources queries:
information@eff.org

Reproduction of this publication in electronic media is
encouraged. Signed articles do not necessarily represent
the views of EFF. To reproduce signed articles
individually, please contact the authors for their express
permission.
Press releases and EFF announcements & articles may be
reproduced individually at will.

Current and back issues of EFFector are available via the
Web at:
http://www.eff.org/effector/

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