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EFFector - Volume 19, Issue 12 - Action Alert: Stop Congress from XXXing with Free Speech!

EFFector Vol. 19, No. 12 March 31, 2006

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 373th Issue of EFFector:

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

Action Alert: Stop Congress from XXXing with Free Speech!

The Cyber Safety for Kids Act of 2006 (S.2426), introduced in March, would require all commercial websites in the United States with material deemed "harmful to minors" (in other words, sexually explicit content that is legal for adults) to move to a dedicated ".xxx"-style adult domain within six months of the bill becoming law or face civil penalties.

The bill won't impact most adult websites, because the majority of them are hosted outside United States jurisdiction. Yet it certainly will damage free speech online and violate the First Amendment. Legitimate websites showing lawful content that might be offensive to some groups would feel the chilling choice: select a normal Net domain and risk a heavy fine for obscenity, or be herded into an .XXX ghetto. And obscenity would be in the eye of the Secretary of Commerce: sex education sites or teenage advocacy groups could easily be caught up in a political fight.

The Cyber Safety for Kids Act is not just an unconstitutional restraint on free speech, it's bad for Internet governance, too. The US government would set a dangerous precedent that could cause equally worrying reactions from other countries fighting for control of ICANN, the domain naming authority. The politics of international top-level domains are complex enough without Congress wading in with its ideas of decency.

Policy groups across the political spectrum - from the ACLU to the Family Research Council - have problems with the Cyber Safety for Kids Act. Tell your Senator to leave the Net and free speech alone, and oppose this bill.

Write to your Senator now:
http://action.eff.org/site/Advocacy?id=219

EFF Motion in AT&T Surveillance Case Draws Government's Eye

DOJ Demands First Look at Documents It Claims Might Be Classified

San Francisco - The Electronic Frontier Foundation (EFF) filed a motion for a preliminary injunction in its class- action lawsuit against AT&T today. However, much of the evidence that was to be included in the motion--as well as the legal arguments based on that evidence--was held back temporarily at the request of the Department of Justice (DOJ). While the government is not a party to the case, DOJ attorneys told EFF that even providing the evidence under seal to the court--a well-established procedure that prohibits public access and permits only the judge and the litigants to see the evidence--might not be sufficient security.

EFF's motion seeks to stop AT&T from violating the law and the privacy of its customers by disclosing to the government the contents of its customers' communications, as part of the National Security Agency's (NSA's) massive and illegal program to wiretap and data-mine Americans' communications. The motion was supported by a number of internal AT&T documents that the government now claims might include classified information.

EFF will seek the Court's permission to publicly release the preliminary injunction motion and supporting documents, and hopes to have redacted versions available after further discussions with the government.

"Openness in court proceedings is fundamental to a free society," said EFF Staff Attorney Kurt Opsahl. "The facts supporting our motion are not classified and are important to the public debate over the propriety of the NSA domestic spying program. The public deserves to know the truth."

The NSA program came to light in December, when the New York Times reported that the President had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies, including AT&T. This surveillance is ongoing, and today's injunction motion seeks to stop the spying while the case is pending.

"AT&T's wholesale diversion of communications into the hands of the NSA violates federal wiretapping laws and the Fourth Amendment," said EFF Staff Attorney Kevin Bankston. "More than just threatening individuals' privacy, AT&T's shameful choice to allow the government to spy on millions of ordinary Americans' communications is a threat to the Constitution itself. We are asking the Court to put a stop to it now."

In the lawsuit, EFF is representing the class of all AT&T residential customers nationwide. Working with EFF in the lawsuit are the law firms Traber & Voorhees, Lerach Coughlin Stoia Geller Rudman & Robbins LLP and the Law Office of Richard R. Wiebe.

For the motion for preliminary injunction:
Brief and some evidence NOT AVAILABLE BY DOJ REQUEST

For more on EFF's suit:
http://www.eff.org/legal/cases/att/

For this release:
http://www.eff.org/news/archives/2006_03.php#004514

"Email -- Should the Sender Pay?": EFF Fundraiser, Debate Between Esther Dyson and Danny O'Brien

In light of AOL's adopting a "certified" email system, EFF is hosting a debate on the future of email. With distinguished entrepreneur Mitch Kapor moderating, EFF Activist Coordinator Danny O'Brien and renowned tech expert Esther Dyson will discuss the potential consequences if people have to pay to send email. Would the Internet deteriorate as a platform for free speech? Would spam or phishing decline?

WHEN:
Thursday, April 20th, 2006
7:00 p.m. to 8:30 p.m.

WHAT:
"Email - Should the Sender Pay?"

WHO:
Danny O'Brien
Danny O'Brien is the Activist Coordinator for the EFF. His job is to help our membership in making their voice heard: in government and regulatory circles, in the marketplace, and with the wider public. Danny has documented and fought for digital rights in the UK for over a decade, where he also assisted in building tools of open democracy like Fax Your MP. He co-edits the award-winning NTK newsletter, has written and presented science and travel shows for the BBC, and has performed a solo show about the Net in the London's West End.

Esther Dyson
Esther Dyson is editor at large at CNET Networks, where she is responsible for its monthly newsletter, Release 1.0, and its PC Forum, the high-tech market's leading annual executive conference. As editor at large, she also contributes insight and content to CNET Networks' other properties. She sold her business, EDventure Holdings, to CNET Networks in early 2004. Previously, she had co-owned EDventure and written/edited Release 1.0 since 1983. Recently, Esther authored a New York Times editorial called "You've Got Goodmail," defending a sender-pays model for the future of email.

Mitch Kapor
Mitchell Kapor is the President and Chair of the Open Source Applications Foundation, a non-profit 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 the founder of Lotus Development Corporation and the designer of Lotus 1-2-3, the "killer application" which made the personal computer ubiquitous in the business world in the 1980's. In 1990, Kapor co-founded EFF.

WHERE:
Roxie Film Center
3117 16th Street, San Francisco
(between Valencia and Guerrero)
Tel: (415) 863-1087

See the link below for a map: http://www.roxie.com/directions.cfm

Local Muni are the 22 and 53 (both at 16th & Valencia), 33 (18th & Valencia), 14 (16th & Mission), 49 (16th & Mission). BART stops one block east at 16th & Mission.

Public Parking is available on Hoff Street, off of 16th between Valencia and Mission at very reasonable rates.

This fundraiser is open to the general public. The suggested donation is $20. No one will be turned away for lack of funds.

Please RSVP to events@eff.org

Adaptive Path is the generous sponsor of this fundraising event. Founded in 2001, Adaptive Path is a leading user experience consulting, research, and training firm that has provided services to a range of clients, including Fortune 100 corporations, pure-Web startups, and established nonprofit organizations. The company is headquartered in San Francisco. To learn more about Adaptive Path, visit the company website at:
http://www.adaptivepath.com

To learn more about the DearAOL campaign against AOL's planned system:
http://www.dearaol.com

For Esther Dyson's editorial, "You've Got Goodmail":
http://www.nytimes.com/2006/03/17/opinion/17dyson.html

Hearing Set for Key Bloggers' Rights Case

On April 20, a California Court of Appeal will hear arguments in Apple v. Does, a case with broad implications for all journalists. EFF is fighting to ensure that bloggers and other online writers get the same rights as offline journalists and can protect the confidentiality of their sources.

As you may recall, 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 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." O'Grady, represented by EFF, asked the court to stop the subpoena of his ISP to reveal his confidential sources.

In a decision whose sweeping terms threaten every journalist, whether publishing in print, radio, television, or on the Internet, the trial court held that the mere assertion of a trade secret removes the strong First Amendment-based protection for a journalist's confidential sources and unpublished information. EFF petitioned the Court of Appeals to correct the trial court's mistake and restore the previously well-settled constitutional protections for a journalist's confidential information, upon which the practice of journalism and the freedom of the press depend.

On June 2, 2005, the California Court of Appeal issued an Order to Show Cause, asking Apple to show the Court "why a peremptory writ should not issue as requested in the petition" that EFF filed on behalf of these online journalists. The Court has now set an April 20, 2006 hearing in San Jose, California on this important issue.

For more on this case:
http://www.eff.org/Censorship/Apple_v_Does/

To learn about EFF's Bloggers' Rights campaign:
http://www.eff.org/bloggers/

FEC Protects Bulk of Internet Speech From Campaign Finance Rules

On Monday, the Federal Election Commission voted unanimously to adopt new regulations that would leave Internet-related activities largely untouched by campaign finance rules. Monday's vote marked the culmination of a series of events put into motion in September 2004 when a federal district court ruled that the FEC couldn't categorically exempt the Internet from federal campaign finance rules and forced the agency to draw up new rules accordingly.

The new rules are a big win for bloggers and other online speakers. When the proposed rules were first announced, bloggers across the spectrum raised concerns that the FEC might intrude too far, imposing burdensome record keeping regulations and potentially chilling online speakers who wanted to discuss political issues or coordinate volunteers. Frequently forgotten, however, was the fact that the FEC had expressed little interest in adopting any kind of Internet regulations in the first place. Indeed, the 2004 court ruling chastised the agency for shielding the Internet more than federal law allowed.

The final rules should put most of the immediate free speech concerns of bloggers to rest. As the introduction to the final rules note, "These final rules therefore implement the regulatory requirements mandated by the Shays District decision by focusing exclusively on Internet advertising that is placed for a fee on another person's website." The FEC has interpreted campaign finance laws (and the admonition of the district court) extremely narrowly, limiting rules regarding spending limits and reporting requirements to instances where paid advertisements are placed on the Internet. Unless they take money in exchange for political advertisements, the bulk of online speakers will remain unaffected by the rule changes.

The new regulations will go into effect in a little over a month.

To read the regulations:
http://www.fec.gov/agenda/2006/mtgdoc06-20.pdf

Read EFF's Election Law for Bloggers FAQ:
http://www.eff.org/bloggers/lg/faq-election.php

DMCA Rulemaking Hearings Underway

Last Thursday, the Copyright Office held the first in a series of hearings on its triennial DMCA Anti-Circumvention Rulemaking in Palo Alto, CA. Every three years, the Copyright Office solicits proposals to exempt specified classes of works from the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. Though EFF believes that this process is too broken to address consumer interests sufficiently, we still support granting exemptions that can help limit the DMCA's damage. Seventy-four such proposals were submitted in the current proceeding, two of which were discussed at last week's hearing.

Jennifer Granick of the Stanford Cyberlaw Clinic made the case for an exemption supporting legitimate competition in the cell phone market by allowing consumers to use their phones with whatever provider they like. Many mobile phone carriers include protection measures on their handsets that prevent customers from switching to another provider. Granick explained how consumers and organizations like the Wireless Alliance, which offers refurbished mobile phones to developing nations, could access rival networks through circumvention. The DMCA imposes liability on this legitimate use, despite the fact that it implicates none of the copyright holder's exclusive rights. A recent lawsuit filed by mobile phone provider Tracfone against a competitor substantiates this threat.

Meanwhile, the Internet Archive sought an exemption for computer software and video games distributed in obsolete formats or that require obsolete hardware or operating systems as a condition of access. In the 2003 rulemaking, the Archive received such an exemption, and Archive founder and EFF Boardmember Brewster Kahle explained at the hearing why the existing exemption should be renewed and expanded. As old machines like Amigas and Apple 68K become increasingly unavailable and obsolete, the preservation of the software that ran on those systems has become more necessary and difficult.

Of course, a representative of copyright trade organizations including the RIAA, MPAA, and BSA was on hand to resist these proposals to curb the DMCA's harms. Significantly, representative Steven Metalitz offered only minimal opposition to the cell phone exemption, conceding the environmental and anti-competitive harms of the firmware locks and acknowledging that DRM schemes for securing audio and video content on mobile phones can be separated from firmware controls. However, Metalitz argued that the Archive's exemption should be significantly limited, applying only to games and software not available in a non- obsolete format. While Section 108 of the Copyright Act classifies a work as "obsolete" if it is available only on the second-hand market, Metalitz suggested that a much narrower definition be used.

The rulemaking hearings will continue next week in Washington, D.C.

To read the exemption proposals:
http://www.copyright.gov/1201/2006/comments/index.html

For EFF's report on how the rulemaking process is flawed:
http://www.eff.org/IP/DMCA/copyrightoffice/DMCA_rulemaking_broken.pdf

For EFF's DMCA exemption reply comments:
http://www.copyright.gov/1201/2006/reply/05lohmann.pdf

miniLinks

miniLinks features noteworthy news items from around the Internet.

The Gagged ISP Operator
The CEO of an ISP talks (as much as he or she can legally do so) about receiving a National Security Letter.
http://www.aclu.org/safefree/general/24732res20060323.html

Free Software's White Knight
ZDNet interviews Eben Moglen, the FSF's general counsel.
http://news.zdnet.com/2100-3513_22-6051589.html

Russian Software Developer Beats Pirate in Boxing Ring
Now that's what we'd call a protection measure.
http://mosnews.com/news/2006/03/23/beatpirate.shtml

Come to FreedomHEC!
Immediately after Microsoft's depressingly restriction- obsessed WinHEC, Don Marti is organizing a DRM-free alternative for systems developers in Seattle.
http://business.newsforge.com/article.pl?sid=06/03/24/1359228&from=rss

Intellectual Property Run Amok
A great list of IP oddities from Mother Jones.
http://motherjones.com/news/exhibit/2006/03/intellectual_property.html

Digging Up the DRM Debate
Mac Observer editors duke it out over DRM.
http://www.macobserver.com/article/2006/03/25.1.shtml

Free Hao Wu
Chinese authorities have arrested blogger and filmmaker Hao Wu.
http://ethanzuckerman.com/haowu/

The Night John Lennon Died
Ren Bucholz spots an historic tape-recording that the audio flag would have forbidden.
http://ipaction.org/blog/2006/03/night-john-lennon-died.html

Let the World See Your Tax Data
IRS will allow preparers to sell your tax data, says the Philadelphia Inquirer.
http://www.philly.com/mld/inquirer/business/14147002.htm

Podcasting in the UK
European collection agencies are experimenting with charges for podcasters.
http://www.theregister.co.uk/2006/03/21/podcast_licensing_scheme/

Should the Internet Play Favorites?
The Washington Post discusses network neutrality and the AOL-Goodmail furor.
http://www.washingtonpost.com/wp-dyn/content/article/2006/03/24/AR2006032400256.html

RIAA Doesn't Get to Randomly Hunt Through Everyone's
Computers Judge lets a defendant hire her own forensics expert to examine her PC.
http://www.techdirt.com/articles/20060320/0216205.shtml

FBI Pushed to Consider Warrantless Physical Searches
After 9-11, the FBI was told that "black bag jobs" could be legal, says US News.
http://www.usnews.com/usnews/news/articles/060327/27fbi.htm

Self-Destructing RFIDs With Cell Phones
The kill code for RFIDs can be extracted by remote power analysis -- possibly even using a mobile phone.
http://www.wisdom.weizmann.ac.il/~yossio/rfid/

Court Subpoenas Deleted GMail Messages
Remember: Google never forgets.
http://www.discourse.net/archives/2006/03/google_never_forgets.html

Administrivia

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derek@eff.org

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