EFFector Vol. 21, No. 09 March 14, 2008 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 462nd Issue of EFFector: * EFF Applauds House Passage of Surveillance Bill with No Telecom Immunity * FISA News and Updates * Patent Office Grants EFF's Request for Reexamination of Online Gaming Patent * Reexamination Improves Patent Quality: A Look at the Latest USPTO Filing Data * A Free Speech Double Whammy: Flawed Anti-Phishing Bill Would Dilute Trademark Fair Use and Anonymity Protections * Real ID Rebellion Roundup * Blogging WIPO: The New Development Agenda * miniLinks (8): Analysis: Firm Stance on FISA Pays Big for Democrats * 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. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EFF Applauds House Passage of Surveillance Bill with No Telecom Immunity Bill Would Allow Spying Cases to Proceed Fairly and Securely Washington, D.C. - This morning the House of Representatives passed a compromise surveillance bill that does not include retroactive immunity for phone companies alleged to have assisted in the NSA's warrantless wiretapping program. The bill would allow lawsuits like the Electronic Frontier Foundation's case against AT&T to proceed while providing specific security procedures allowing the telecom giants to defend themselves in court. The House bill succeeded 213 to 197 despite the president's threat to veto any bill that does not include immunity. "We applaud the House for refusing to grant amnesty to lawbreaking telecoms, and for passing a bill that would allow our lawsuit against AT&T to proceed fairly and securely," said Electronic Frontier Foundation (EFF) Senior Staff Attorney Kevin Bankston. "Amnesty proponents have been claiming on the Hill for months that phone companies like AT&T had a good faith belief that the NSA program was legal. Under this bill, the companies could do what they should have been able to do all along: tell that story to a judge." The Senate is expected to consider the House bill when it returns from recess on Monday, March 31. House and Senate staff are expected to spend much of the break negotiating over differences between the new House bill and a previous Senate bill that includes immunity provisions. "This newly-passed House bill represents a true compromise on the amnesty issue: customers whose privacy was violated would get their day in court, while the companies would be allowed to defend themselves despite the Administration's broad demands for secrecy," said EFF Legal Director Cindy Cohn. "We look forward to assisting the Senate in its consideration of this compromise solution, which EFF believes is the only reasonable response to the White House's attempt to evade court review of its illegal spying program and the phone companies' collaboration in it." EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the National Security Agency in widespread domestic surveillance. The Hepting case is the leading case aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government. For this release: http://www.eff.org/press/archives/2008/03/14 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * FISA News and Updates On March 10, the Wall Street Journal published an important article confirming key elements of EFF's suit against AT&T. Officials quoted in the article acknowledge a massive domestic spying operation run by the NSA and confirm that the program includes the wholesale copying of entire data streams by the telecoms, as well as the existence of a "domestic network of hubs" to coordinate the spying in different cities: http://www.eff.org/deeplinks/2008/03/wall-street-journal-confirms-key-elements-hepting-v-t The Wall Street Journal article also demonstrates that the Administration is relying upon erroneous views of electronic communications privacy law, including some that contradict the Department of Justice's own published interpretations. Our "law-checking report" confirms that, contrary to the NSA's claim, information like email subject lines, Internet searches and cell phone location information all require a warrant under law: http://www.eff.org/deeplinks/2008/03/law-checking-wsj-article-domestic-spying Among the flurry of this week's action on FISA, the House Judiciary Committee issued a strong statement dismantling flawed pro-immunity arguments and calling for deeper investigation of warrantless surveillance: http://www.eff.org/deeplinks/2008/03/house-judiciary-slams-immunity-and-calls-deeper-investigation-warrantless-surveill Thirty-four advocacy groups urged Congress to hold fast against telecom immunity in light of a new whistleblower's allegations of an unsecured gateway to wireless communications at a major telecom: http://www.eff.org/deeplinks/2008/03/34-groups-urge-congress-hold-fast-against-immunity Tash Hepting, the lead plaintiff in EFF's class-action suit against AT&T, spoke with NPR and the Wall Street Journal about his role in opposing warrantless surveillance and about how his father's experience of being surveilled as a ham radio enthusiast moved him to action: http://www.eff.org/deeplinks/2008/03/tash-hepting-speaks-out BoingBoing TV published an interview with EFF Legal Director Cindy Cohn and AT&T Whistleblower Mark Klein: http://www.eff.org/deeplinks/2008/03/boingboing-tv-interview-cindy-cohn-and-mark-klein And last week, Mark Klein was presented with an EFF Pioneer Award after being nominated by members of the public and chosen by a panel of judges. At the ceremony, EFF Legal Director Cindy Cohn delivered an inspiring introduction for a "bona fide hero": http://www.eff.org/deeplinks/2008/03/eff-legal-director-cindy-cohns-introduction-mark-klein-2008-pioneer-awards : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Patent Office Grants EFF's Request for Reexamination of Online Gaming Patent Fifth Successful Result for Patent Busting Project San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination of a bogus online gaming patent from the U.S. Patent and Trademark Office (PTO) -- the fifth successful reexamination request from EFF's Patent Busting Project. Sheldon F. Goldberg was awarded the illegitimate patent for online gaming systems that use tournament-style play, advertising, and real-time updates of ladder-rankings in multi-player games. Goldberg has used this bogus patent to coerce licensing fees from numerous small businesses. In the reexamination request, EFF along with Paul Grewal and Brad Waugh of Day Casebeer Madrid & Batchelder show that the technology covered by the Goldberg patent had been widely disseminated in the public domain for years before Goldberg made his claim. The Patent Office took quick action on the request, recognizing this substantial new question of patentability less than a month after the request was filed. "The patent process was designed to encourage invention, investment, and disclosure and was not meant to be used as a tool to threaten legitimate businesses," said EFF Intellectual Property Fellow Emily Berger. "Reexamination proceedings like these are essential in protecting the public from patents that should never have been granted in the first place." This reexamination request is part of EFF's Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. So far, the project has killed one bogus patent covering a system and method of creating digital recordings of live performances. Four more reexaminations, including this one, are under review by the USPTO due to the Patent Busting Project's efforts. "Undeserved patents cause significant harm to innovation and competition in the information age," said Paul Grewal. "We are pleased that the PTO recognized the substantial questions of patentability raised in EFF's request and look forward to the PTO's ultimate decision on the merits." Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School also carried out extensive research for the reexamination request, helping locate much of the critical evidence of prior use of technologies covered by Goldberg's patent. Members of the Netrek online gaming community also provided technical analysis and legal declarations that figured prominently in the PTO's decision to grant EFF's reexamination request. For the full reexamination order: http://w2.eff.org/patent/wanted/sheldon/reexam/goldberg-reexam-granted.PDF For more on the Patent-Busting Project: http://www.eff.org/patent/ For this release: http://www.eff.org/press/archives/2008/03/12 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Reexamination Improves Patent Quality: A Look at the Latest USPTO Filing Data The latest statistics from the United States Patent and Trademark Office (USPTO) prove what EFF has been saying for years: third party challenges to patent validity provide an invaluable check on improper and overbroad patents. According to these records, in the 25 years since ex parte reexamination became possible, the PTO has granted the vast majority of reexamination requests, finding that third party challenges raised substantial new questions of patentability. Thus, rather than overburdening the examiners, reexamination requests are helping the PTO separate the wheat from the chaff, fix mistakes and meet its stated goal: to promote innovation. Unfortunately, the success of ex parte reexamination proceedings is being overlooked in the latest draft of S.1145, the Patent Reform Act of 2007, which suggests replacing the current reexamination processes with an inadequate form of post-grant review and places undue restrictions on third party participation. This portion of the Act could essentially eliminate important public interest projects, such as EFF's Patent Busting Project, which use inter and ex parte reexamination proceedings to challenge patents that endanger the public domain. Write to your Senator about the Patent Reform Act and preserving third party reexamination: http://action.eff.org/site/Advocacy?id=361 For this complete post by EFF Intellectual Property Fellow Emily Berger (coauthored by Policy Intern Raeanne Young): http://www.eff.org/deeplinks/2008/03/reexamination-improves-patent-quality-look-latest-uspto-filing-data : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * A Free Speech Double Whammy: Flawed Anti-Phishing Bill Would Dilute Trademark Fair Use and Anonymity Protections Congress is contemplating S. 2661, a so-called 'Anti-Phishing Consumer Protection Act' (APCPA) that takes an odd view of consumer protection. The bill starts off relatively inoffensively by prohibiting the use of false information to solicit identifying data from a computer. But then it goes on to forbid the use of brand names in domain names and the use of another's domain name in emails, on websites, or in web ads; and the bill text does little to protect important noncommercial, periodic and comparative uses. To make matters worse, another provision allows any Tom, Dick or Harry to force domain name registrars to reveal a customer's personally identifying information by simply sending an email alleging that the customer has violated the new law. No need to comply with the traditional legal niceties of, say, a filed lawsuit or a subpoena that might permit the customer to go to court to protect her anonymity. A mere allegation is enough. Sure, Phishing is a problem. But you don't solve it by rewriting trademark law and depriving lawful speakers of the chance to keep their identities private. This ill-conceived legislation should be stopped in its tracks. For the full text of the bill: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.02661: For this complete post by EFF Staff Attorney Corynne McSherry: http://www.eff.org/deeplinks/2008/03/free-speech-double-whammy-flawed-anti-phishing-bill-would-dilute-trademark-fair-us : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Real ID Rebellion Roundup This week, Pedro Nava, a prominent California Assemblymember, introduced a non-binding resolution that asks California's members of Congress to oppose Real ID, the unfunded federal mandate to turn driver's licenses into national ID cards. It highlights the state's growing opposition to Real ID, as legislators and citizens begin to realize the astronomical cost and catastrophic privacy implications of participating in the federal program. The California resolution comes hot on the heels of a widely-heard NPR interview with Brian Schweitzer, the governor of Montana, who outlines his state's staunch opposition to the Real ID mandates. In the interview, he cites such concerns as state sovereignty and the absence of systems to actually facilitate Real ID. Also in the interview, Gov. Schweitzer boldly announces that his state will call the federal government's "bluff" on the issue of air travel -- the Department of Homeland Security has threatened that on May 11th, states that have not embraced Real ID will find their licensees treated differently in regards to air travel and access to federal buildings. Finally, Real ID opposition at the federal level features a budget amendment sponsored by Sen. Jon Tester (D-MT) that seeks to funnel money away from Real ID to be used to benefit veterans instead. For California Assemblymember Pedro Nava's release calling for opposition to Real ID: http://democrats.assembly.ca.gov/members/a35/press/20080311AD35PR01.htm For the NPR interview with Gov. Brian Schweitzer: http://www.npr.org/templates/story/story.php?storyId=87991791 For this post: http://www.eff.org/deeplinks/2008/03/real-id-rebellion-roundup : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Blogging WIPO: The New Development Agenda Last year, the World Intellectual Property Organization (WIPO) adopted a set of 45 ground-breaking proposals on how WIPO should reorient its operations to foster economic and social development within its 182 Member States. The Development Agenda proposals are intended to require WIPO to take a broader approach to promoting creativity and innovation, instead of focusing exclusively on maximizing intellectual property rights. The beginning of March featured the first meeting of the new WIPO committee set up to implement the Development Agenda: the Committee on Development and Intellectual Property. It has been charged with formulating a work plan to put development in the mainstream focus of WIPO's operations and activities. Expectations were naturally high. At week's end, what we can report is that there was only small progress on concrete aspects of a work plan, and that Member States will continue in informal open-ended discussions between now and the next meeting of the Committee in July. What is more interesting, and ultimately more important, is the procedure that governed this week's discussions about how to craft a work plan to implement the Development Agenda. When the WIPO General Assembly agreed to adopt the set of 45 landmark recommendations last October, we believe the outcome it intended was the reorientation of WIPO's institutional culture. Unfortunately, that commitment to change seemed less present in these recent discussions. Let's hope that this is rectified in the informal consultations that will take place in the next months and that we see projects, timelines and evaluation criteria that clearly evidence WIPO's commitment to change and accountability at the meeting in July. For the WIPO Development Agenda, adopted at the 2007 WIPO General Assembly meeting: http://www.eff.org/pages/new-wipo-development-agenda For this complete post by EFF International Policy Director Gwen Hinze: http://www.eff.org/deeplinks/2008/03/blogging-wipo-new-development-agenda : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Analysis: Firm Stance on FISA Pays Big for Democrats Confronting the President on spying powers turns out to be a better strategy than capitulation. http://arstechnica.com/news.ars/post/20080312-analysis-firm-stance-on-fisa-pays-big-dividends-for-dems.html ~ President Weakens Spying Oversight The Intelligence Oversight Board has been stripped of much of its authority -- reversing reforms of the 70s. http://www.boston.com/news/nation/washington/articles/2008/03/14/president_weakens_espionage_oversight/ ~ P4P -- New Peer-to-Peer Tech Verizon is looking into ways to enable better networks rather than impede them. http://arstechnica.com/news.ars/post/20080314-verizon-embraces-p4p-a-more-efficient-peer-to-peer-tech.html ~ First Fan-Financed Album to Be Released Slicethepie raises money from fans to fund album releases. http://www.dmwmedia.com/news/2008/03/06/music-community-slicethepie-releasing-first-fan-financed-album ~ Kentucky Lawmaker: Anonymous Posting Should Be Illegal Rep. Tim Couch has filed a bill that would make it a crime to post anonymously on the Internet. http://www.wtvq.com/content/midatlantic/tvq/video.apx.-content-articles-TVQ-2008-03-05-0011.html ~ Pacemakers Vulnerable to RFID Scams? Researches have shown that private medical information can be extracted from RFID-equipped implants. http://uwnews.org/article.asp?articleID=40358 ~ Privacy Advocates Raise Concerns Over Google-DoubleClick Deal An EU Commission cleared the merger, but privacy concerns were not part of the determination. http://www.internetnews.com/security/article.php/3733801/The+Privacy+Debate+Beyond+GoogleDoubleClick.htm ~ Humor: Diebold Accidentally Leaks 2008 Results The Onion reports that e-voting tallies have been leaked, revealing election results in advance. http://www.theonion.com/content/video/diebold_accidentally_leaks?utm_source=EMTF_Onion : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * 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: Richard Esguerra, EFF Activist richard@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/
