[IP] EFFector 18.37: Court Issues Surveillance Smack-Down to Justice Department
Begin forwarded message:
From: EFFector list <editor@xxxxxxx>
Date: October 27, 2005 6:48:13 PM EDT
To: farber@xxxxxxxxxxxxx
Subject: EFFector 18.37: Court Issues Surveillance Smack-Down to
Justice Department
Reply-To: EFFector list <editor@xxxxxxx>
EFFector Vol. 18, No. 37 October 27, 2005 editor@xxxxxxx
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
In the 353rd Issue of EFFector:
* Court Issues Surveillance Smack-Down to Justice Department
* Plan for Internet "Backdoors" Draws Coordinated Attack
* Want to Take a Bite Out of the DMCA? Now's the Time
* First Annual P2P Litigation Summit, November 3
* The Patent System of the Future?
* Spring Legal Internships at EFF
* Stanford Center for Internet and Society Mailing List
* miniLinks (10): Open Letter to Yahoo's Jerry Yang
* Staff Calendar: 10.30.05 - Fred von Lohmann at Eastern
District of California Judicial Conference in Monterey, CA;
11.3.05 - Cindy Cohn, Corynne McSherry, and Allison Navone at
P2P Litigation Summit in Chicago; 11.4.05 - Cindy Cohn at IP
Law Association of Chicago, Fred von Lohmann at Advanced
Software Law and Practice in San Francisco, Cory Doctorow at
Center for Brazilian Studies, Oxford
* Administrivia
For more information on EFF activities & alerts:
<http://www.eff.org/>
Make a donation and become an EFF member today!
<http://secure.eff.org/support>
Tell a friend about EFF:
<http://action.eff.org/site/Ecard?ecard_id=1061>
: . : . : . : . : . : . : . : . : . : . : . : . : . : . :
* Court Issues Surveillance Smack-Down to Justice Department
No Cell Phone Location Tracking Without Probable Cause
New York--Agreeing with a brief submitted by EFF, a federal
judge forcefully rejected the government's request to track
the location of a mobile phone user without a warrant.
Strongly reaffirming an earlier decision, Federal Magistrate
James Orenstein in New York comprehensively smacked down
every argument made by the government in an extensive, fifty-
seven page opinion issued this week. Judge Orenstein decided,
as EFF has urged, that tracking cell phone users in real time
required a showing of probable cause that a crime was being
committed. Judge Orenstein's opinion was decisive, and
referred to government arguments variously as "unsupported,"
"misleading," "contrived," and a "Hail Mary."
"This is a true victory for privacy in the digital age, where
nearly any mobile communications device you use might be
converted into a tracking device," said EFF Staff Attorney
Kevin Bankston. "Combined with a similar decision this month
from a federal court in Texas, I think we're seeing a
trend--judges are starting to realize that when it comes to
surveillance issues, the DOJ has been pulling the wool over
their eyes for far too long."
Earlier this month, a magistrate judge in Texas, following
the lead of Orenstein's original decision, published his own
decision denying a government application for a cell phone
tracking order. That ruling, along with Judge Orenstein's
two decisions, revealed that the DOJ has routinely been
securing court orders for real-time cell phone tracking
without probable cause and without any law authorizing the
surveillance.
"The Justice Department's abuse of the law here is probably
just the tip of the iceberg," said EFF Staff Attorney Kurt
Opsahl. "The routine transformation of your mobile phone
into a tracking device, without any legal authority, raises
an obvious and very troubling question: what other new
surveillance powers has the government been creating out of
whole cloth and how long have they been getting away with
it?"
The government is expected to appeal both decisions and EFF
intends to participate as a friend of the court in each case.
For the full text of Judge Orenstein's new opinion, and the
similar Texas opinion:
<http://www.eff.org/legal/cases/USA_v_PenRegister>
For this release:
<http://www.eff.org/news/archives/2005_10.php#004090>
: . : . : . : . : . : . : . : . : . : . : . : . : . : . :
* Plan for Internet "Backdoors" Draws Coordinated Attack
The FCC's new tech mandate requiring Internet backdoors is
wrong in so many ways, we cannot even keep count. A few
choice ways, in lawyer-speak, is that it exceeds the FCC's
authority, is arbitrary, capricious, unsupported by the
evidence, and is contrary to law. EFF and six other groups
have now teamed up to stop it.
The coalition has petitioned an appeals court to review the
FCC ruling that would expand the Communications Assistance to
Law Enforcement Act (CALEA) to broadband ISPs and VoIP
providers, forcing them to build insecure backdoors into
their networks. Law enforcement says it needs the backdoors
because, they argue, it's just too hard for them to intercept
all the communications that they need. But that kind of easy
access will also endanger the privacy of innocent people,
stifle innovation, and risk the Internet as a forum for free
and open expression.
EFF has already argued against this expansion of CALEA in
several rounds of comments to the FCC, and we'll be there
every step of the way during the court battle.
Petition from EFF and other groups:
<http://www.cdt.org/digi_tele/20051025caleapetition.pdf>
More on FCC and CALEA:
<http://www.eff.org/news/archives/2005_09.php#004011>
: . : . : . : . : . : . : . : . : . : . : . : . : . : . :
* Want to Take a Bite Out of the DMCA? Now's the Time
As part of the Digital Millennium Copyright Act (DMCA),
Congress instructed the U.S. Copyright Office to consider
every three years whether we need exemptions to the DMCA's
blanket ban on circumventing "technological protection
measures" (aka Digital Rights Management or DRM) used to lock
up copyrighted works. So if you want to make a legitimate
use of a piece of media, but have been turned back by DRM and
the DMCA, now is your chance to take your case to the
Copyright Office and try to make the world a happier and
safer place for the next three years. As two-time-
successful-exemption-requester Seth Finkelstein says: "The
lawsuit you prevent may be your own."
The Copyright Office is soliciting exemption proposals for
the next three-year period, 2006-2009. Proposals must be
submitted to the Copyright Office by no later than December
1, 2005.
Keep in mind that--as in the two previous rule-makings--you'll
have to overcome some obstacles to convince the Copyright
Office and Librarian of Congress to grant you an exemption.
These include:
1. The Copyright Office can recommend exemptions only to the
DMCA's ban on acts of circumvention, not to the ban on
trafficking in tools of circumvention. So if you are
interested in an exemption that would allow you to distribute
circumvention tools (like DVD back-up software), you're out
of luck.
2. You have to prove that your intended activity is not
otherwise an infringement of copyright law and specifically
identify the DRM technology that is getting in your way.
3. You have to identify a "class" of copyrighted works to
which your exemption would apply. The Copyright Office
requires that you do this by defining a subset of works of
authorship. You are not allowed to frame the class by
reference to particular non-infringing uses of those works,
or by attributes of the users. For example, the Copyright
Office has rejected past requests for exemptions for
"classroom uses" of DVDs, while granting exemptions for
computer programs protected by malfunctioning copy-protection
dongles.
These are just a few of the sometimes bewildering array of
limitations on the Copyright Office's willingness to
entertain exemption proposals. The best way to understand
the requirements is to read up on the links below. If, after
reviewing these, you think you might have something that
qualifies, EFF would like to hear from you. Please email
exemption class proposals to dmca2006-proposals @eff.org by
November 24.
Finkelstein describes his experience:
<http://www.eff.org/IP/DMCA/finkelstein_on_dmca.html>
Official Federal Register notice:
<http://www.copyright.gov/fedreg/2005/70fr57526.html>
Report on rule-making from 2003:
<http://www.copyright.gov/1201/docs/registers-recommendation.pdf>
The four exemptions granted in 2003:
<http://www.copyright.gov/fedreg/2003/68fr2011.pdf>
: . : . : . : . : . : . : . : . : . : . : . : . : . : . :
* Join us: First Annual P2P Litigation Summit, November 3
In September 2003, members of the Recording Industry
Association of America (RIAA) filed the first wave of
lawsuits against individual peer-to-peer (P2P) file-sharers.
Two years and 14,000 lawsuits later, both P2P file-sharing
and file-sharing litigation continue unabated, and members of
the Motion Picture Association of America (MPAA) are now
suing individual Internet users, as well. It's time to step
back and consider where this litigation has been, where it's
going, and whether there is a better way forward.
EFF is co-sponsoring the First Annual P2P Litigation Summit,
to be held on Thursday, November 3, 2005, at Northwestern
University School of Law in Chicago, Illinois. We'd love to
see you there.
The daylong roundtable discussion brings together public and
private defense attorneys, clients, investigators, advocates,
and academics to discuss the latest developments in peer-to-
peer litigation. How do the RIAA and MPAA go about
identifying plaintiffs? What are the most effective legal
strategies and tactics? Is it better to settle immediately
or fight it out in the courts? How is this impacting the
individuals sued? What is the role of ISPs in this quagmire?
Should Congress step in and, if so, what legislation is
needed? Are there other ways to compensate authors for their
works?
More information, and to register:
<http://www.signmeup.com/51363>
: . : . : . : . : . : . : . : . : . : . : . : . : . : . :
* The Patent System of the Future?
For those following the E.U. software patent directive, U.S.
Patent and Trademark Office reform proposals, and the
substantive patent law harmonization merriment at WIPO,
here's your chance to meet the Trilateral PTOs. Join the
European Patent Office, the Japan Patent Office and the USPTO
for a meeting with users on "The Patent System of the Future:
The Role of the Trilateral Offices" in Munich, November 17.
For more information and to register:
<http://www.trilateral.net/meet_users/index.php>
: . : . : . : . : . : . : . : . : . : . : . : . : . : . :
* Spring Legal Internships at EFF
EFF invites outstanding law students to apply for Spring
internship positions at our high-energy office in San
Francisco. You can work with EFF's legal team to litigate
cutting-edge issues surrounding new technologies. Interns
assist in all aspects of litigation and advocacy, including
legal research, factual investigation, and drafting of
memoranda and briefs, while also helping with policy
research, client counselling, and the development of public
education materials. EFF's docket ranges across the
technological and legal landscape, from file-sharing to
electronic voting to the USA PATRIOT Act.
Spring internships are two full days per week and last 10-12
weeks. First and second-year law students are encouraged to
apply, including students enrolled in non-US schools.
For details:
<http://www.eff.org/about/opportunities/legalinterns/>
: . : . : . : . : . : . : . : . : . : . : . : . : . : . :
* Stanford Center for Internet and Society Mailing List
Stanford Law School Center for Internet and Society lost its
mailing list. (Oops!)
To subscribe, or re-subscribe:
<http://cyberlaw.stanford.edu/list/>
For the first issue of The Packets Newsletter:
<http://cyberlaw.stanford.edu/packets/vol_3_no_1/>
: . : . : . : . : . : . : . : . : . : . : . : . : . : . :
* Staff Calendar
For a complete listing of EFF speaking engagements (with
locations and times), please visit the full calendar:
<http://www.eff.org/calendar/>
October 30
Fred von Lohmann speaking at the Eastern District of
California 2005 Judicial Conference in Monterey, CA
November 3
Cindy Cohn, Corynne McSherry, and Allison Navone speaking at
the P2P Litigation Summit in Chicago
<http://www.eff.org/IP/P2P/p2p_litigation_summit.php>
November 4
Cindy Cohn speaking at the Intellectual Property Law
Association in Chicago
<http://www.iplac.org</a>
Fred von Lohmann speaking at the Advanced Software Law and
Practice in San Francisco
<http://www.marcusevans.com/events/CFEventinfo.asp?EventID=9788>
Cory Doctorow speaking at the Center for Brazilian Studies at
the University of Oxford, England
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* miniLinks
miniLinks features noteworthy news items from around the
Internet.
~ An Open Letter to Yahoo's Jerry Yang
The full text of the powerful, damning message to Yahoo's
co-founder, from Beijing dissident Liu Xiaobo.
<http://cicus.org/news/newsdetail.php?id=5421>
~ Lack of a Broadcast Flag Boosts HDTV Tuners
"With the broadcast flag being struck down...tuner card
manufacturers are aggressively doing HDTV TV tuner card
products for retail," says a software PVR developer.
<http://www.betanews.com/article/SnapStream_Software_Goes_HighDef/
1130272522>
~ Digital Copyright Law Unclear Shocker
Can you sell your CDs and keep your ripped music? Copyright
expert Bill Patry steps in on the legality of selling your
CDs after making digital copies.
<http://williampatry.blogspot.com/2005/10/first-sale-hard-copies-and-
digital.html>
~ Doctorow on Europe's Coming Broadcast Flag
O'Reilly reports on Cory's speech at EuroOSCON
<http://www.oreillynet.com/pub/a/network/2005/10/21/doctorow-on-
europe-broadcast-flag.html>
~ Patent Office Three-Way, November 17, Munich
State what you think of software and business practice
patents to the heads of Japanese, US, and EU patent offices.
<http://www.trilateral.net/meet_users/index.php>
~ Authors for Google Print
Jason Kottke on an author who wants her publisher to
cooperate with Google Print, not sue it.
<http://www.kottke.org/05/10/google-print-lawsuit>
~ Bill Gates Against "Anti-Consumer" DRM
Blu-ray copy-protection crosses the line (handily drawn a
little away from Microsoft's own DRM).
<http://www.dailyprincetonian.com/archives/2005/10/14/news/13474.shtml>
~ CALEA Goes to College
Schools are balking against the costs of wire-tapping their
students.
<http://www.nytimes.com/2005/10/23/technology/23college.html>
~ EULAs I Have Known
Tom's Guide takes a look at some of the more egregious EULA
terms they've seen.
<http://www.tgdaily.com/2005/10/22/rtf_eula/>
~ Iranian Blogger Receives 124 Lashes
The Committee to Protect Bloggers has more info and a show of
support HTML snippet to include on your site.
<http://committeetoprotectbloggers.civiblog.org/blog/_archives/
2005/10/22/13>
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* Administrivia
EFF Privacy Policy:
<http://www.eff.org/policy/>
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