| CARVIEW |
Press Releases: June, 2008
EFF to Testify at Congressional Hearing on Electronic Searches at U.S. Borders
Wednesday Hearing on Laptop Searches and Other Privacy Violations
Washington, D.C. - On Wednesday, June 25, at 9 a.m., members of the U.S. Senate Judiciary hearing will hold a public hearing on laptop searches and other privacy violations faced by Americans at the U.S. border.
Senior Staff Attorney Lee Tien of the Electronic Frontier Foundation will appear at Wednesday's hearing to urge more congressional investigation and oversight of the Department of Homeland Security's border search practices and policies. While the U.S. Supreme Court has ruled that customs and border agents can perform "routine" searches at the border without a warrant or even reasonable suspicion, increasingly Americans are complaining about random and invasive searches of their laptops, cell phones, and other digital devices as they come home from overseas travel. In a typical search, U.S. border officials will turn on the device and then open and review files. If agents see something of interest, they may copy data or confiscate the device -- even if the traveler is not suspected of criminal activity.
"These ongoing baseless searches of electronic devices at America's borders are not 'routine,' they're unreasonable," said Tien. "It's hard to imagine something more invasive than a wholesale copying of private files from a personal computer. We need Congress and the courts to recognize a standard for digital searches and seizures at the border that protects the privacy, property, and free speech rights of Americans in the Information Age."
WHO:
Lee Tien
Senior Staff Attorney Electronic Frontier Foundation
WHAT:
"Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel"
U.S. Senate Judiciary Subcommittee on the Constitution
WHEN:
9 a.m.
Wednesday, June 25
WHERE:
Dirksen Senate Office Building
Room 226
Washington, D.C.
For more on the hearing:
https://judiciary.senate.gov/hearing.cfm?id=3420
Contacts:
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org
EFF Urges Judge to Grant New Trial for Jammie Thomas
Court To Reconsider Baseless 'Making Available' Theory In File-Sharing Case
San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of consumer and industry groups have asked a judge to grant a new trial to Jammie Thomas, who was hit with a $222,000 judgment in a file-sharing lawsuit based in part on the recording industry's bogus "making available" theory.
Thomas' trial and the staggering financial penalty made headlines around the world. In the case, the Recording Industry Association of America (RIAA) sought to hold Thomas liable for unauthorized distribution of digital music over the Internet without having to prove that anyone actually downloaded songs from her. The RIAA argued that simply making the songs available in a shared folder on her computer was enough to impose penalties, and a jury found Thomas liable for $220,000 in October of 2007.
But earlier this year, the judge in the case said he was concerned that he might have made a mistake when he followed the RIAA's reasoning in his jury instructions and asked for more briefing on whether Thomas deserved a new trial. In an amicus brief filed today, EFF argues that the RIAA cannot take shortcuts when it takes music fans to court.
"The Copyright Act simply does not allow suing someone for attempted copyright infringement," said EFF Staff Attorney Corynne McSherry. "If the RIAA wants to continue with its mass litigation campaign, it's going to have to invest the time and resources to actually prove those cases -- if it can -- by showing that infringement actually occurred."
The RIAA has sued more than 20,000 individuals for allegedly sharing music over the Internet since it started its lawsuit campaign in 2003.
"The RIAA's specious 'making available' argument threatens to brand people as thieves when the evidence isn't really there," said EFF Senior Intellectual Property Attorney Michael Kwun. "We're pleased the judge is taking a second look at this critical question."
Joining EFF on the brief were Public Knowledge, the United States Internet Industry Association, and the Computer and Communications Industry Association.
For the full amicus brief:
https://www.eff.org/files/filenode/capitol_v_thomas/20080620EFFAmiciBrief...
For more on Capitol v. Thomas:
https://www.eff.org/cases/capitol-v-thomas
Contacts:
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Michael Kwun
Senior Intellectual Property Staff Attorney
Electronic Frontier Foundation
michael@eff.org
House Caves, Approves Fake 'Compromise' on Telecom Immunity
EFF Condemns House Vote, Looks to Senate for Leadership
Washington, D.C. - Privacy rights and the rule of law took a serious blow today when the House of Representatives passed blanket retroactive immunity for phone companies that participated in the president's warrantless surveillance program. The FISA Amendments Act, H.R. 6304, which House Leadership rushed to the floor today after its introduction yesterday, passed by a vote of 293 to 129. The Senate is expected to vote on the bill next week.
The bill was touted as a bipartisan "compromise" on the issues of electronic surveillance and immunity. But in fact it requires dismissal of lawsuits against companies like AT&T that participated in the program as long as the companies received a piece of paper from the government indicating that the surveillance had been authorized by the president and was determined to be lawful.
"Immunity for telecom giants that secretly assisted in the NSA's warrantless surveillance undermines the rule of law and the privacy of every American," said EFF Senior Staff Attorney Kevin Bankston. "Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying. If this legislation passes the Senate and is signed into law, the American people will have lost their last best chance to discover the true scope of the president's wiretapping program and to determine whether or not the law was broken."
"We are deeply disappointed that the House Leadership, which was so courageous in its previous opposition to telecom immunity, caved to the Administration's fear-mongering and put this seriously flawed legislation on the floor for a vote," said Bankston. "We look to leaders in the Senate who value the rule of law to stand up and strongly oppose this blanket immunity for telecom lawbreakers, and in particular urge Senator Barack Obama to lead his party in rejecting this false compromise."
EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of the millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.
Contacts:
Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
EFF Urges Congress to Reject Final 'Compromise' on Telco Immunity
Secret Bill's Text Finally Available, Vote in House Likely Tomorrow
Washington, D.C. - EFF calls on members of the House of Representatives to vote "NO" on H.R.6304, the FISA Amendments Act of 2008, which the House is expected to vote on tomorrow. The text of the bill was released today, and it contains blanket retroactive immunity for telcos that broke the law by cooperating with the NSA's warrantless surveillance program.
"Whatever gloss might be put on it, the so-called 'compromise' on immunity is anything but: the current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review," said EFF Senior Staff Attorney Kevin Bankston. "We call on all members of Congress to reject this sham compromise and maintain the rule of law, rather than deprive the millions of ordinary Americans whose privacy rights were violated of their day in court."
EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of the millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.
For the full text of the FISA Amendments Act:
https://www.eff.org/files/filenode/att/FISAINTRO_001_xml.pdf
For EFF's analysis of the immunity bill's provisions:
https://www.eff.org/files/AnalysisHR6304-v5.pdf
Contacts:
Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
EFF Speaks Out Against Telecom Immunity Deal
Proposal in Congress Would Let Telecoms Off the Hook for Illegal Spying
Washington, D.C. - Congress is widely reported to have struck a deal on legislation to amend the Foreign Intelligence Surveillance Act (FISA) that includes immunity for telecommunications companies that helped the government illegally spy on millions of ordinary Americans. Today, the Electronic Frontier Foundation (EFF) held a press conference with the ACLU to emphasize that this much-touted "compromise" is a sham aimed at letting both the government and the telecoms off the hook for violating the law and the Constitution.
"Whatever gloss might be put on it, the so-called 'compromise' on immunity is anything but: the current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review," said EFF Senior Staff Attorney Kevin Bankston. "We call on all members of Congress to reject this sham compromise and maintain the rule of law, rather than deprive the millions of ordinary Americans whose privacy rights were violated of their day in court."
EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of the millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.
For Kevin Bankston's complete statement on the FISA deal from today's press conference:
https://www.eff.org/files/filenode/EFF_bankston.pdf
Contacts:
Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
Anonymity Preserved for Creator of MySpace 'Spoof' Profiles
Petition Withdrawn After EFF Files Amicus Brief
Cook County, IL - The president of a Chicago suburb has dropped his attempt to obtain the identity of an anonymous MySpace user after the Electronic Frontier Foundation (EFF) filed an amicus brief detailing how the petition violated both the First Amendment and a federal statute that protects the privacy of online users.
In May, Cicero, IL, Town President Larry Dominick asked a Cook County Circuit Court judge to order the disclosure of the identity of the author of two MySpace profiles that allegedly included defamatory comments and unnamed privacy violations. EFF stepped in and asked the judge to reject Dominick's request, arguing that any attempt to unmask the anonymous speaker would violate the author's First Amendment right to remain anonymous unless Dominick could demonstrate a viable legal claim. In addition, the federal Stored Communications Act prohibits government entities such as Dominick -- who brought the petition in his official government capacity -- from obtaining identifying customer information through the ordinary civil discovery process.
"We are grateful that Mr. Dominick has chosen to abandon his misguided attempt to unmask a critic through the use of the legal system," said EFF Senior Staff Attorney Matt Zimmerman. "While litigants may pursue claims against speakers who have truly engaged in defamatory speech, it is not enough -- especially for an elected official -- to walk into court and demand the identity of an anonymous speaker supported with nothing but a vague allegation of wrongdoing."
EFF was assisted in this matter by Charles Mudd, Jr., and Sophie Dye of Mudd Law Offices in Chicago.
For the order dismissing the petition:
https://www.eff.org/files/filenode/dom_v_myspace/2008-06-13%20Order.pdf
For more on anonymity:
https://www.eff.org/issues/anonymity
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Judges Urged to Curtail Random Searches of Travelers' Laptops
EFF Asks for Review of Flawed Appeals Court Ruling
San Francisco - The Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) urged an appeals court today to review a flawed decision allowing random and invasive searches of travelers' computers at the U.S. border.
The news media has reported extensively on these searches as well as the surprise and anger felt by American travelers when they are singled out for inspection. In a typical search, U.S. border officials will turn on the computer and then open and review files. If agents see something of interest, they may confiscate the computer, copy its contents, and sometimes provide a copy to the Department of Justice -- even when the traveler is not suspected of criminal activity. In some cases, travelers have never gotten their computers back from the government.
In an amicus brief filed today, EFF and ACTE asked the full 9th U.S. Circuit Court of Appeals to rehear and reverse an appeals panel decision in United States v. Arnold, which upheld this blanket search and seizure power. While the U.S. Supreme Court has ruled that customs and border agents can perform "routine" searches at the border without a warrant or even reasonable suspicion, these ongoing baseless searches of electronic devices at America's borders are unconstitutionally invasive.
"Searching a laptop is very different from searching a briefcase. Your computer contains a vast amount of information about your private life, including details about your family, your finances, and your health," said EFF Senior Staff Attorney Lee Tien. "All that information can be easily copied, transferred, and stored in government databases, just because you were chosen for a random inspection."
These suspicionless laptop searches and data seizures violate the Fourth Amendment's prohibition against unreasonable search and seizure. The unique nature of electronic information stored on computers and other portable devices requires the courts to recognize a standard that protects the privacy of Americans in the Information Age.
"The implications of unfettered data collection are staggering," said ACTE Executive Director Susan Gurley. "Border authorities may now systematically collect all information on every laptop computer, BlackBerry, or other device carried across our border. The government can then store and search all that data without any justification or oversight by any court. This simply does not square with the Fourth Amendment."
The EFF-ACTE amicus brief was prepared by Arent Fox LLP.
For the full amicus brief:
https://www.eff.org/files/filenode/US_v_arnold/amicusjune08.pdf
For more on US v. Arnold:
https://www.eff.org/cases/us-v-arnold
Contacts:
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org
Susan Gurley
Executive Director
Association of Corporate Travel Executives
susan@acte.org
Judge Shoots Down Universal's Bogus Infringement Allegations
Ruling Affirms Right to Resell Promo CDs
San Francisco - A federal judge has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores.
Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs. At issue was whether the "promotional use only, not for sale" labels on those CDs could trump Augusto's right to resell materials that he owns, guaranteed by copyright law's "first sale" doctrine.
In dismissing UMG's lawsuit late Tuesday, U.S. District Court Judge S. James Otero ruled that the promo CDs are gifts distributed by UMG, as they are mailed free and unsolicited to thousands of people without any expectation or intention of their return. The first sale doctrine says that once the copyright owner sells or gives away a copy of a CD, DVD, or book, the recipient is entitled to resell that copy without further permission.
"This is a very important ruling for consumers, and not just those who buy or sell used CDs," said EFF Staff Attorney Corynne McSherry. "The right of first sale also protects libraries, used bookstores, and businesses that rent movies and videogames. This ruling affirms and protects the traditional balance between the rights of copyright owners and the rights of the public."
"It was clear to the court that these CDs were the property of Mr. Augusto, and therefore he had the right to resell them," said Joseph C. Gratz, attorney with Keker & Van Nest. "Copyright holders can't strip consumers of their first sale rights just by sticking a 'Not for Sale' label on a CD."
Mr. Augusto's victory comes almost one hundred years to the day after the United States Supreme Court's June 1, 1908 decision in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), established the first sale doctrine as a central part of American copyright law.
EFF has long fought efforts to override the first sale doctrine, arguing in 2004 that Lexmark should not be permitted to use a "label license" to prohibit the resale of laser printer toner cartridges.
For the full order:
https://www.eff.org/files/filenode/umg_v_augusto/LA07CV03106SJO-O.pdf
For more analysis:
https://www.eff.org/deeplinks/2008/06/liberation-day-promo-cds-victory-um...
Contacts:
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Joseph C. Gratz
Attorney
Keker & Van Nest, LLP
jgratz@kvn.com
Animal Welfare Group Battles Online Censorship of Rodeo Videos
Bogus Copyright Claims Used to Block YouTube Critique of Animal Mistreatment
Chicago - The Electronic Frontier Foundation (EFF) asked a federal court today to protect the free speech rights of an animal welfare group after its video critiques of animal treatment at rodeos were removed from YouTube due to sham copyright claims.
The group Showing Animals Respect and Kindness (SHARK) is a non-profit organization that videotapes and photographs rodeos in order to expose animal abuse, injuries, and deaths. SHARK posted more than two dozen videos to YouTube to publicize this animal mistreatment. But the Professional Rodeo Cowboys Association (PRCA) filed takedown demands for 13 of the videos under the Digital Millennium Copyright Act (DMCA), claiming the videos infringed their copyrights. YouTube consequently removed the videos and canceled SHARK's entire YouTube account, even though the PRCA has no copyright claim in live rodeo events.
"The PRCA may not like it when our clients raise tough questions about how animals are treated at rodeos, " said EFF Staff Attorney Corynne McSherry. "But this copyright claim is completely baseless, and made simply to block the public from seeing SHARK's controversial videos. The PRCA can't be permitted to silence its critics through a misuse of the law."
Because of the baseless copyright claims, SHARK's videos were unavailable to the public for approximately two weeks. In a lawsuit filed today, EFF asks the court to affirm that SHARK's videos do not infringe any of the PRCA's copyrights, and to hold the PRCA accountable for lodging these spurious claims.
"We can't let the PRCA continue to interfere with SHARK's free speech rights," said SHARK investigator Michael Kobliska. "It's simply not right for us to waste our time and money dealing with these baseless DMCA takedowns that block our message from getting out to the public."
This lawsuit is part of EFF's No Downtime for Free Speech Campaign, which works to protect online expression in the face of baseless copyright claims. EFF has seen people and organizations increasingly misusing the DMCA to demand that material be removed from the Internet without providing any proof of infringement. Furthermore, service providers -- fearful of monetary damages and legal hassles -- often comply with these requests without double-checking them, despite the cost to free speech and individual rights.
"We must stop the abuse of the DMCA," said EFF Intellectual Property Fellow Emily Berger. "Those bringing meritless copyright claims must be held accountable so that free speech can continue to flourish online."
Charles Lee Mudd Jr. of Mudd Law Offices in Chicago and the John Marshall Law School Center for Information Technology & Privacy Law are also representing SHARK in this suit.
For the full complaint in SHARK v. PRCA: https://www.eff.org/files/filenode/SHARK_v_PRCA/08cv3314comp.pdf
For more on EFF's No Downtime for Free Speech Campaign: https://www.eff.org/issues/ip-and-free-speech
Contacts:
Emily Berger
Intellectual Property Fellow
Electronic Frontier Foundation
emily@eff.org
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Michael Kobliska
SHARK Investigator
mkobliska@sharkonline.org
Leading Intellectual Property Attorney Joins EFF
Michael Kwun Brings Years of Litigation Experience to EFF's Legal Team
San Francisco - Michael Kwun has joined the Electronic Frontier Foundation (EFF) as a new Senior Intellectual Property Staff Attorney, bringing years of copyright, trademark, and patent litigation experience to EFF's legal team.
Kwun comes to EFF from Google. As the company's Managing Counsel, Litigation, he was responsible for defending Google in copyright cases about YouTube, Google Book Search, and Google Image Search; trademark cases about Google AdWords; and patent cases in connection with a wide variety of Google products.
"EFF has always fought to protect new innovations from bogus legal claims that stifle creativity, kill competition, and limit consumer choice," said Kwun. "I'm looking forward to tackling these important cases with the rest of EFF's legal team."
Before joining Google, Kwun was an associate at the law firm Keker & Van Nest, where he worked one of the early cases challenging Digital Millennium Copyright Act (DMCA) subpoenas issued by the Recording Industry Institute of America (RIAA). Kwun is also a long-time geek; his first publication was a short computer program that appeared in a Commodore computer enthusiast magazine in 1985.
"Michael brings a wealth of experience in copyright, trademark, and patent law to EFF," said EFF Executive Director Shari Steele. "We're so glad that he has chosen to join our legal team and help with this important work."
Kwun also sits on the board of directors of the East Bay Community Law Center, which provides legal services to the low-income community and hands-on clinical education for law students. Kwun received his J.D. degree from the Boalt Hall School of Law and his undergraduate degree from the University of Michigan.
Contacts:
Michael Kwun
Senior Intellectual Property Staff Attorney
Electronic Frontier Foundation
michael@eff.org
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
EFF Asks Judge to Block Unmasking of MySpace User
Battle Over 'Spoof' Profiles Must Not Circumvent First Amendment, Federal Law
Cook County, IL - The Electronic Frontier Foundation (EFF) asked a judge in Illinois Wednesday to reject an attempt to identify an anonymous MySpace user who allegedly posted fake profiles of an Illinois official because the request would violate both the First Amendment and federal statute.
In May, Cicero Town President Larry Dominick asked a Cook County Circuit Court judge to order the disclosure of the identities of the author of two MySpace profiles that allegedly included defamatory comments and unnamed privacy violations. In its amicus brief, however, EFF argues that the petition violates the First Amendment right to remain anonymous until a litigant can demonstrate a viable legal claim.
"The First Amendment protects not only the right to speak but to speak anonymously," said EFF Senior Staff Attorney Matt Zimmerman. "If Mr. Dominick's claims are legitimate, he may be able to obtain the identifying information that he seeks. Until he meets his burden, however -- including, among other things, attempting to notify the author of this court action and identifying the allegedly defamatory statements at issue -- the court should not grant his request. The First Amendment requires courts to guard against attempts to unmask critics who have simply made statements litigants don't like, especially when such requests are made by elected officials."
In addition, federal law also bars Mr. Dominick's request. Passed to protect the communications and records of users of services such as MySpace, the Stored Communications Act categorically prohibits government entities from obtaining identifying customer information through the ordinary civil discovery process.
"Federal law imposes stiff penalties on government entities that violate the privacy of online users without meeting strict requirements," said Zimmerman. "So far, Mr. Dominick -- bringing this action in his official capacity as town president -- hasn't met those standards."
For the full amicus brief:
https://www.eff.org/files/filenode/dom_v_myspace/Motion%20AC%20filed.pdf
For more on this case:
https://www.eff.org/cases/dominick-v-my-space
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
