EFFector Vol. 20, No. 42  October 22, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 446th Issue of EFFector:

• Action Alert: Call Congress and Fight Telecom Immunity!
• EFF Suit Demands Telecom Lobbying Records from Director of National Intelligence
• Senate Committee Caves in to Telecom Amnesty Related Issues
• EFF Document Summarizes Evidence of NSA Spying
• Telecoms File Letters on House Committee's Inquiries on Warrantless Wiretapping
• Qwest CEO: NSA Punished Qwest for Refusing to Participate in Illegal Surveillance--Pre-9/11!
• Citizens' Video Clip Questions GOP Candidates on Warrantless Wiretapping -- Vote For It!
• Is Comcast Jamming Users' BitTorent and Gnutella Traffic?
• YouTube's Copyright Filter: New Hurdle for Fair Use?
• miniLinks (7): U.S. Voters Oppose Warrantless Wiretapping
• Administrivia

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 http://www.eff.org/

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* Action Alert: Call Congress and Fight Telecom Immunity!

Last week, the battleground over dangerous surveillance 
legislation broadened from just the House of 
Representatives to both chambers of Congress. Despite 
extensive public outcry, telecom immunity is on the 
bargaining table and being written into draft legislation. 
Take action on EFF's two action alerts targeting both the 
House and Senate!

Last week in the House, the Administration's allies 
scuttled a floor vote on the RESTORE Act because it did not 
provide amnesty for lawbreaking telecoms. RESTORE will 
likely be taken up again this week, as Administration and 
telecom lobbyists continue to press for immunity. It is 
imperative that you tell your Representative to stand firm 
in the face of procedural tricks -- no telecom immunity in 
RESTORE!
http://action.eff.org/site/Advocacy?id=321

Meanwhile, last Thursday, the Senate Intelligence Committee 
approved a surveillance bill that includes immunity for 
telecoms that broke the law at the President's request. 
Senators Feingold and Wyden voted against passing the bill, 
and a limited number of Senators not on the committee have 
spoken out against telecom immunity, including senators 
Chris Dodd and Joe Biden. The surveillance bill is going to 
the Senate Judiciary Committee next. Call your Senators on 
the committee and demand their leadership in protecting 
your rights and fighting telecom immunity!
http://action.eff.org/site/Advocacy?id=325

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* EFF Suit Demands Telecom Lobbying Records from Director 
of National Intelligence

Lawsuit Filed as Congress Debates Letting Industry Off the 
Hook for Illegal Spying

San Francisco - The Electronic Frontier Foundation (EFF) 
filed suit against the Office of the Director of National 
Intelligence (ODNI) Wednesday, demanding any information 
about telecommunications companies' efforts to get off the 
hook for their role in the government's illegal electronic 
surveillance of millions of ordinary Americans.

Congress is currently considering granting amnesty to the 
telecoms -- a blatant attempt to derail lawsuits aimed at 
holding the companies responsible for knowingly violating 
federal privacy laws with warrantless wiretapping and the 
illegal transfer of vast amounts of personal data to the 
government. EFF represents the plaintiffs in Hepting v. 
AT&T, one of dozens of class-action suits accusing the 
telecoms of violating customers' rights by illegally 
assisting the National Security Agency with this domestic 
surveillance.

News reports have described an elaborate lobbying campaign 
by the telecoms to drum up support for legislation that 
would hold them unaccountable for their actions, and 
Director of National Intelligence Mike McConnell has 
publicly voiced his support for amnesty. But McConnell's 
office has not yet responded to EFF's Freedom of 
Information Act (FOIA) requests to disclose records about 
this lobbying activity.

"Congress is debating amnesty for the telecoms right now -- 
amnesty that could imperil judicial review of a very 
controversial government program, as well as threaten 
class-action lawsuits that impact millions of Americans," 
said EFF Staff Attorney Marcia Hofmann. "We deserve to know 
what kind of lobbying has gone on behind the scenes before 
lawmakers make this critical decision."

EFF's suit asks for the immediate disclosure of ODNI's 
telecom lobbying records, including any documents 
concerning briefings, discussions, or other contacts 
officials have had with representatives of 
telecommunications companies or members of Congress. This 
lawsuit comes just two weeks after EFF filed a similar FOIA 
suit against the Department of Justice for withholding 
records on telecom lobbying.

For the full complaint:
http://www.eff.org/files/filenode/foia_C0705278/ODNI_complaint.pdf

For more on our FOIA work:
http://www.eff.org/issues/foia

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

For this release:
http://www.eff.org/press/archives/2007/10/17

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* Senate Committee Caves in to Telecom Amnesty Related 
Issues

The Senate Select Committee on Intelligence approved a bill 
including amnesty for phone companies that assisted the NSA 
in its illegal warrantless surveillance program late 
Thursday -- amnesty that is intended to kill pending cases 
against the telecoms, such as EFF's class action lawsuit 
against AT&T.

If this bill passes, it would immunize the companies' 
lawbreaking if it were done based on an authorization by 
the president, foolishly undermining the very purpose of 
the Foreign Intelligence Surveillance Act (FISA). As EFF 
Legal Director Cindy Cohn explains in a recent Salon 
interview, FISA was passed after Watergate and the spying 
scandals of the seventies to ensure that the president 
could never unilaterally decide to spy on Americans' 
communications. For Congress to now say, "It's OK if the 
president said so" would be a striking abdication of its 
authority. Congress should let the courts address the 
critical legal questions raised by the NSA's warrantless 
wiretapping program -- especially the question of whether 
the president and the phone companies are bound by 
Congress' laws in this area. Instead, some lawmakers seem 
intent on shooting their own branch of government in the 
foot by assisting in the Administration's cover-up and 
preventing the court's enforcement of Congress' law.

Now that the intelligence committee has approved the bill, 
it will be referred to the Senate Judiciary Committee for 
further consideration. However, Connecticut Senator Chris 
Dodd has announced that he will put a "hold" on the bill to 
prevent it from being considered by the full Senate. We are 
pleased Senator Dodd has taken a stand for Americans' 
privacy rights. This amnesty provision is essentially an 
admission that the telecoms did indeed violate the law at 
the president's request and did so on a massive scale. If 
the NSA program were truly narrowly targeted at terrorist 
suspects, as the president claims, the carriers would not 
need this unprecedented bailout. Now is the time to tell 
lawmakers to say no to immunity -- pick up the phone and 
take action:
http://action.eff.org/site/Advocacy?id=325

Read Greenwald's Salon interview with EFF Legal Director 
Cindy Cohn here:
http://www.salon.com/opinion/greenwald/2007/10/17/amnesty/index.html

Read the New York Times article, "Senate Deal on Immunity 
for Phone Companies": (Registration unfortunately 
required.)
http://www.nytimes.com/2007/10/18/washington/18nsa.html?ex=1350360000&en=e41edce7fb935f5a&ei=5090&partner=rssuserland&emc=rss

For this post and related links:
http://www.eff.org/deeplinks/2007/10/senate-committee-caves-telecom-amnesty

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* EFF Document Summarizes Evidence of NSA Spying

EFF recently published a one-page document summarizing the 
evidence that is the centerpiece of EFF's Hepting v. AT&T 
case. Information for the document came from previously 
secret evidence that was unsealed this summer, including 
the declarations of whistleblower Mark Klein and EFF's 
expert witness, J. Scott Marcus, a former Senior Advisor 
for Internet Technology to the Federal Communications 
Commission. The document includes the following diagram, a 
straightforward illustration of how a massive portion of 
innocent Americans' communications were put under the 
control of the NSA:
http://www.eff.org/files/filenode/att/ATT_onepg_3.pdf

For those who haven't already seen it, the PBS Frontline 
documentary "Spying on the Home Front" explores the 
evidence in clear, concise detail. The 10-minute portion 
that strictly covers the evidence can be found here:
http://www.pbs.org/wgbh/pages/frontline/homefront/view/3.html

You can stream the whole documentary for free and without 
DRM from the Frontline website:
http://www.pbs.org/wgbh/pages/frontline/homefront/view/

For this post:
http://www.eff.org/deeplinks/2007/10/eff-document-summarizes-evidence-nsa-spying

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* Telecoms File Letters on House Committee's Inquiries on 
Warrantless Wiretapping

The telecoms have returned letters to the House Energy and 
Commerce Committee's requests for information about secret 
warrantless wiretapping programs. The responses seem to 
have failed to significantly advance the Committee's 
investigation on government surveillance programs, 
prompting a diplomatic response from Representative Bart 
Stupak, chairman of the Subcommittee on Oversight and 
Investigations: "While I recognize the unique legal 
constraints the telecommunications companies face regarding 
what information they may disclose, important questions 
remain unanswered about how the Administration induced or 
compelled them to participate in NSA's eavesdropping 
program."

As part of the same investigation, the House Energy and 
Commerce Committee solicited comments from EFF as part of 
the committee's investigation of the controversial program. 
EFF submitted a response on October 12, 2007.

For EFF's full comments to the House Committee on Energy 
and Commerce:
http://eff.org/Privacy/Surveillance/FISA/committee_letter.pdf

For the Washington Post article, "Verizon Says It Turned 
Over Data Without Court Orders": (Registration 
unfortunately required.)
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/15/AR2007101501857.html?nav=rss_email/components

For Wired Threat Level's roundup summarizing all the 
telecom's letters:
http://blog.wired.com/27bstroke6/2007/10/telcos-respond-.html

For this post and related links:
http://www.eff.org/deeplinks/2007/10/telecoms-file-letters-house-committees-inquiries-warrantless-wiretapping

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* Qwest CEO: NSA Punished Qwest for Refusing to Participate 
in Illegal Surveillance--Pre-9/11!

When Qwest refused the NSA's illegal request that it hand 
over its customers' data without a warrant, the NSA wasn't 
happy. According to former Qwest CEO Joseph Nacchio, the 
government hit back for the telecom's refusal by denying 
them lucrative contracts worth hundreds of millions of 
dollars.

The details emerging from the backrooms where telecoms and 
the government conspire together make it increasingly clear 
that now is the time for Congress to act. Investigations 
into what the telecoms knew and when they knew it should be 
continued, and no wiretapping legislation should be passed 
until Congress and the public have the full story of what 
has happened in the last six years.

Read the Washington Post story: (Registration unfortunately 
required.)
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/12/AR2007101202485.html

For this post and related links:
http://www.eff.org/deeplinks/2007/10/qwest-ceo-nsa-punished-qwest-refusing-participate-illegal-surveillance-pre-9-11

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* Citizens' Video Clip Questions GOP Candidates on 
Warrantless Wiretapping -- Vote For It!

On November 28, the Republican candidates for President 
will face questions from the public in the form of user-
generated video clips uploaded to YouTube. (A similar event 
was held by Democrats last July.) We hope the candidates 
get to hear from Kim LeBiavant, who has a very important 
question regarding warrantless wiretaps:
http://www.youtube.com/watch?v=Ghf1ILZQ2Ls

Help make sure the candidates hear this question by voting 
for it at:
http://www.10questions.com/

For this post:
http://www.eff.org/deeplinks/2007/10/citizens-video-clip-questions-gop-candidates-warrantless-wiretapping-vote-it

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* Is Comcast Jamming Users' BitTorent and Gnutella Traffic?

Last week, the Associated Press reported that Comcast is 
interfering with users' ability to run file-sharing 
applications over its network.

We spoke to Comcast last month and understood them to deny 
that they are doing this, so we've been running our own 
tests.

On Friday, we posted about some experiments showing that 
Comcast is forging packets in order to interfere with its 
customers' use of BitTorrent. There have been reports of 
strange things happening with other protocols, and we've 
been running some tests on two other file transfers 
protocols in particular -- HTTP (which is used by the World 
Wide Web) and Gnutella. Comcast has also been strenuous in 
telling us, "We don't target BitTorrent". Perhaps not. 
Perhaps what they're doing is even worse.

Read the AP report:
http://news.yahoo.com/s/ap/20071019/ap_on_hi_te/comcast_data_discrimination

Read what EFF's technologists discovered in the complete 
post:
http://www.eff.org/deeplinks/2007/10/comcast-also-jamming-gnutella-and-lotus-notes

For our previous post:
http://www.eff.org/deeplinks/2007/10/eff-tests-agree-ap-comcast-forging-packets-to-interfere

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* YouTube's Copyright Filter: New Hurdle for Fair Use?

Google has announced its long-awaited copyright filtering 
(or "video identification," if you prefer) mechanism for 
YouTube. Based on initial reports and discussions with 
Google, the system will be good news for copyright owners 
and bad news for people who post unauthorized verbatim 
copies of popular copyrighted material. But what about the 
fair users, who have made YouTube the platform of choice 
for remix culture? Unfortunately, it looks like YouTube's 
solution may put them in jeopardy.

Find out more in EFF Senior Staff Attorney Fred von 
Lohmann's complete analysis here:
http://www.eff.org/deeplinks/2007/10/youtubes-copyright-filter-new-hurdle-fair-use

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* miniLinks
The week's noteworthy news, compressed.

~ U.S. Voters Oppose Warrantless Wiretapping
A recent poll found that a majority of voters across the 
political spectrum are opposed to warrantless wiretaps.
http://www.upi.com/International_Security/Emerging_Threats/Briefing/2007/10/16/poll_us_voters_oppose_bush_wiretap_law/6209/

~ Key Senator Flush with Telecom Cash
Senator Rockefeller supports immunity for telecoms while 
taking their cash.
http://blog.wired.com/27bstroke6/2007/10/dem-pushing-spy.html

~ Josh Wolf on Journalist's Shield Law
Will the Free Flow of Information Act do enough to protect 
bloggers?
http://blogs.cnet.com/8301-13508_1-9798084-19.html

~ Microchips Used to Track Students
A UK school is experimenting with using microchips embedded 
in school uniforms to track students.
http://www.timesonline.co.uk/tol/news/uk/education/article2698062.ece

~ New Zealander Beats Amazon in Copyright Battle
The U.S. Patent Office rules that Amazon does not have 
exclusive rights to one-click shopping.
http://www.tv3.co.nz/News/Story/tabid/209/articleID/37300/Default.aspx

~ File Sharing Fuels Brazil's Techno Scene
Musicians in Brazil are encouraging fans to download and 
share their music.
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/10/19/entertainment/e115616D75.DTL

~ Cartoon: Why Are Democrats Caving on Wiretaps?
Cartoonist Steve Sack asks what Democrats have to gain by 
supporting Bush's wiretap policies.
http://www.comics.com/editoons/sack/archive/sack-20071012.html

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* Administrivia

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

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