--- EFFector list <editor@eff.org> wrote:
EFFector Vol. 18, No. 2 January 14, 2005
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 318th Issue of EFFector:
* Can the FBI Monitor Your Web Browsing Without a Warrant?
* Apple Can't Strongarm Bloggers
* Will Blizzard Destroy the Future of Video Games?
* Texas Election System Examiners' Meetings Shrouded in Secrecy
* Sham Recount Process on Diebold E-voting Machines
* It's Not Too Late to Nominate a Pioneer for EFF's 2005
Pioneer Awards!
* MiniLinks (15): Wish They All Could Be California Laws
* Administrivia
For more information on EFF activities & alerts: <http://www.eff.org/>
To join EFF or make an additional donation: <https://secure.eff.org/>
EFF is a member-supported nonprofit. Please sign up as a member today!
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* Can the FBI Monitor Your Web Browsing Without a Warrant?
EFF Demands Answers from DOJ about PATRIOT Act Surveillance
Washington, DC - Today the Electronic Frontier Foundation(EFF)
filed a Freedom of Information Act (FOIA) request with the FBI
and other offices of the US Department of Justice,
seeking the release of documents that would reveal whether
the government has been using the USA PATRIOT Act to spy
on Internet users' reading habits without a search warrant.
At issue is PATRIOT Section 216, which expanded the government's
authority to conduct surveillance in criminal investigations
using pen registers or trap and trace devices ("pen-traps").
Pen-traps collect information about the numbers dialed
on a telephone but do not record the actual content
of phone conversations. Because of this limitation,
court orders authorizing pen-trap surveillance are easy to get
- instead of having to show probable cause, the government
need only certify relevance to its investigation.
Also, the government never has to inform people that they are
or were the subjects of pen-trap surveillance.
PATRIOT expanded pen-traps to include devices that monitor Internet
communications. But the line between non-content and content
is a lot blurrier online than it is on phone networks.
The DOJ has said openly that the new definitions
allow pen-traps to collect email and IP addresses.
However, the DOJ has not been so forthcoming about web surveillance.
It won't reveal whether it believes URLs can be collected
using pen-traps, despite the fact that URLs clearly reveal
content by identifying the web pages being read. EFF made its
FOIA request specifically to gain access to documents that might
reveal whether the DOJ is using pen-traps to monitor web browsing.
"It's been over three years since the USA PATRIOT Act was passed,
and the DOJ still hasn't answered the public's simple question:
'Can you see what we're reading on the Web without probable cause?'"
said Kevin Bankston, EFF Staff Attorney
and Bruce J. Ennis Equal Justice Works Fellow.
"Much of PATRIOT is coming up for review this year, but we can
never have a full and informed debate of the issues when the DOJ
won't explain how it has been using these new surveillance powers."
The law firm,DLA Piper Rudnick Gray Cary assisted EFF in preparing the
FOIA request and will help with any litigation if the DOJ fails to
respond.
FOIA request:
<http://www.eff.org/cgi/tiny?urlID=378>
For this release:
<http://www.eff.org/news/archives/2005_01.php#002213>
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* Apple Can't Strongarm Bloggers
EFF Defends Rights of Reporters Who Published Asteroid
News Stories on Blogs
Santa Clara, CA - Only weeks before Macworld, the nation's
biggest annual trade show devoted to Apple products, Apple
sent legal threats to the publishers of the Mac-centric
weblogs AppleInsider and PowerPage for posting information
about a product code-named "Asteroid." EFF is representing
the publishers to protect their right to keep confidential
the identities of the people who supplied them with the
information.
On December 13, Apple filed suit against "Does 1-20" in a
Santa Clara court. The company obtained a court order that
allows it to issue subpoenas to AppleInsider and PowerPage
for the names of the "Does" who allegedly leaked the
information in question. EFF is defending the publishers
against these subpoenas, arguing that the anonymity of
bloggers' sources is protected by the same laws that protect
sources providing information to journalists.
"Bloggers break the news, just like journalists do. They
must be able to promise confidentiality in order to
maintain the free flow of information," said EFF Staff
Attorney Kurt Opsahl. "Without legal protection, informants
will refuse to talk to reporters, diminishing the power
of the open press that is the cornerstone of a free society."
"I am very disappointed by Apple's behavior and its new
policy of issuing legal threats to its best customers,"
added Jason O'Grady, publisher of PowerPage. "Is corporate
paranoia really more important than the First Amendment?"
For this release:
<http://www.eff.org/news/archives/2005_01.php#002190>
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* Will Blizzard Destroy the Future of Videogames?
Outcome of BnetD Case Could Eliminate Software that
Extends the Gaming Experience
Eighth Circuit - This week EFF filed a brief in the Eighth
Circuit Court of Appeals arguing that federal law forbids
videogame corporation Blizzard from interfering with gamers'
ability to create new products to enhance their game
experience. EFF is co-counsel for the defendants in Davidson
v. Internet Gateway, a case on appeal from a district court
in St. Louis. The district court held that an open-source
software gaming server called BnetD was unlawful because
its makers had violated Blizzard's End User License
Agreement (EULA) and portions of the Digital Millennium
Copyright Act (DMCA).
BnetD lets gamers play popular Blizzard titles like Warcraft
with other gamers on servers outside of Blizzard's
Battle.net service. To create BnetD, a group of volunteer
programmers reverse-engineered a protocol in Battle.net,
using the information to give players access to the
BnetD server. Blizzard argues that this act violated a
clause in its EULA that forbids reverse-engineering. In
its brief, EFF argues that federal copyright law, which
allows reverse-engineering in cases of fair use, trumps
Blizzard's EULA. Because the BnetD programmers created a
product that is interoperable with Blizzard games, their
actions fall squarely within the definition of fair use.
EFF also argues that the DMCA specifically allows for fair
use reverse-engineering.
If it stands, the lower court's decision would make it
unlawful in most cases to reverse-engineer any commercial
software program, thus making it impossible to create new
programs that interoperate with older ones. This
squeezes consumer choice out of the marketplace by
essentially allowing companies to outlaw competitors'
products that interact with their own.
"The Eighth Circuit's decision will strongly impact the
health of the videogame industry," said Jason Schultz,
the EFF staff attorney working on the case. "If companies
are able to use EULAs and the DMCA to eliminate
competition in the marketplace, videogame consumers
will suffer, as will consumers of electronics in other
industries affected by this ruling."
For the full press release:
<http://www.eff.org/news/archives/2005_01.php#002211>
For the EFF brief:
<http://www.eff.org/cgi/tiny?urlID=369>
(PDF)
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* Texas Election System Examiners' Meetings Shrouded in
Secrecy
Lawsuit Pushes for Public Access to Meetings Where E-voting
Machines Are Evaluated
Austin, TX - On January 19, a Texas court is scheduled to
determine whether to force the state's voting examiners
to open their meetings to the public. The ACLU of Texas
and a Texas voter filed a lawsuit last year, ACLU of
Texas v. Geoffrey S. Connor, demanding that the public
be admitted to meetings where the examiners decide
which electronic voting machines to certify. While
these groups waited for a response from the court, the
examiners held yet another closed meeting on January 4
and 5.
"There's no technical reason for keeping these meetings
closed to the public," said Dan Wallach, a Rice
University computer science professor and outspoken
critic of electronic voting systems. "By allowing
outside experts in security, accessibility, and election
procedure to attend the meetings, the voting system
vendors will receive better feedback from the ultimate
users of the machines. Likewise, if outside experts
find problems, the state can demand the vendors
address those problems before the machines are used in
the field."
Recently, the Texas Safe Voting Coalition obtained
videotapes of previous meetings, including one involving
Diebold Election Systems, that suggest a lack of rigor
and failure to address properly security and
certification compliance issues. If the court grants a
temporary injunction on the 19th, the voting examiners
will have to admit the public to certification
meetings.
"Transparency in voting systems is one of the most important
ways we ensure that our votes count," said Cindy Cohn,
Legal Director of the Electronic Frontier Foundation (EFF),
which is serving as co-counsel in the case. "Transparency
needs to start from when voting machines are chosen and
end with the final vote tally, including any necessary
recounts."
For the full press release:
<http://www.eff.org/news/archives/2005_01.php#002212>
For the complaint:
<http://www.safevoting.org/blog/archives/PetitionOpenMeetings.doc>
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* Sham Recount Process on Diebold E-voting Machines
Lawsuit Challenges Berkeley Election Officials in
Referendum Recount
Berkeley, CA - A close proposition referendum will come
under court examination in a case that highlights major
problems with conducting a recount using Diebold electronic
voting machines. Berkeley Measure R, the Patient's
Access to Medical Cannabis Act of 2004, lost by only
191 votes after the regular election on November 2,
2004. Under the law, the proponents were entitled to
seek a recount, which they did.
Instead of attempting to ensure that the votes were counted
correctly, however, Alameda County election officials
engaged in a "going through the motions" exercise where
they merely ran the same electronic vote data through
the same counting machines and, predictably, reached
the same result. They did not consult the machines'
audit logs, redundant memories, or any other relevant
materials.
Measure R proponents Americans for Safe Access filed a
lawsuit on December 30 challenging the actions of county
election officials in handling the electronic voting
machine portion of the recount. This suit now awaits
a hearing.
"Recounts are one of the most important ways we detect
vote fraud and error," said Matt Zimmerman, staff attorney
for the Electronic Frontier Foundation (EFF), which is
consulting on the case. "Even after Californians have
voter-verified paper trails in 2006, it will be important
to ensure that audit logs, redundant memory, and other
security measures are checked during a recount, along
with the paper trails. Banks and credit card issuers use
these measures to make sure our financial transactions
are safe. Our votes deserve at least as much protection."
A hearing in Alameda Superior Court is currently set for
March 2.
For the full press release:
<http://www.eff.org/news/archives/2005_01.php#002210>
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* It's Not Too Late to Nominate a Pioneer for EFF's 2005
Pioneer Awards!
There's still time to tell us who you think deserves an
EFF Pioneer Award this year! We will continue to accept
nominations until February 1, 2005.
EFF established the Pioneer Awards in 1992 to recognize
leaders on the electronic frontier who are extending
freedom and innovation in the realm of information
technology. This year's award ceremony will be held in
Seattle in conjunction with the Computers, Freedom and
Privacy conference (CFP), which takes place April 12-15.
For details on criteria and how to nominate a Pioneer,
check out the Pioneer Awards website:
<http://www.eff.org/awards/pioneer/>
CFP 2005 website:
<http://www.cfp2005.org/>
EFF is seeking sponsorship for this year's Pioneer Awards.
If your company or group is interested, please contact
Terri Forman at tforman@eff.org
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* miniLinks
miniLinks features noteworthy news items from around the
Internet.
~ Wish They All Could Be California Privacy Laws
Ryan Singel on how California had a pretty good year for
privacy laws in 2004:
<http://www.wired.com/news/privacy/0,1848,66165,00.html>
~ The Price of Surveillance, Measured in Pounds
The London Internet Exchange (LINX), a consortium of ISPs,
argues that the cost of a proposed EU plan to mandate
data retention would amount to a tax to support
government snooping:
<http://www.net4nowt.com/isp_news/news_article.asp?News_ID=2592>
~ French Security Researcher Could Be Jailed for Finding Bugs
Guillaume Tena found and wrote about exploits in a piece
of antivirus software, and its publisher has now
initiated two lawsuits against the researcher. If
found guilty, Tena could spend six months and jail and
be fined almost a million euros:
<http://www.eff.org/cgi/tiny?urlID=379>
(ZDNet)
~ More On Why to Thank Poland
The controversial EU software patent directive was supposed
to be rubber stamped, but Poland's opposition plus a letter
from 61 MEPs has thrown its future into (welcome) doubt:
<http://www.eff.org/cgi/tiny?urlID=377>
(TechWorld)
~ Verizon Blocks Email from UK, Parts of Europe
It would have been kinda nice if they'd told their customers...
<http://www.wired.com/news/ebiz/0,1272,66226,00.html>
~ CNN: The Most Trusted Name in Censorship
The news organization has sued several Internet sites for
allowing users to translate CNN stories into Arabic.
The sites provide automated translation engines like
Altavista's BabelFish, but CNN has decided to only
target operators in the Arab world:
<http://japantoday.com/e/?content=news&cat=8&id=231980>
~ LokiTorrents v. Hollywood
One of the Internet's most popular BitTorrent sites is
looking to raise money for its impending legal fight
against the MPAA:
<http://news.com.com/2100-1025_3-5508073.html>
~ Your Boss Can Search Your Computer Without a Warrant
A Washington appeals court has ruled that employees
don't have an expectation of privacy for material
stored on a work computer:
<http://news.com.com/2100-1030_3-5513266.html>
~ RIAA Slapped Again for Ignoring Due Process
No more shotgun lawsuits - another appeals court has
ruled that the RIAA must file individual "John Doe"
lawsuits against alleged copyright infringers:
<http://www.eff.org/cgi/tiny?urlID=370>
(Bloomberg)
~ 8th Circuit: VoIP Can't Be Regulated as Phone Service
This trend may help infant services like Vonage and
Skype run with the monster telcos:
<http://www.eff.org/cgi/tiny?urlID=373>
(AP)
~ Big Software Urges Congress to Regulate ISPs
Citing piracy concerns, the Business Software Alliance
(BSA) has asked Congress to amend the Digital
Millennium Copyright Act (DMCA) to force Internet
service providers to play the heavy for copyright
holders:
<http://www.eff.org/cgi/tiny?urlID=374>
(Washington Post; reg. unfortunately required.)
~ The iTunes Made Me Do It
A California man is suing Apple Computer for using its
monopoly power to force him to buy an iPod. It may
sound farfetched as an antitrust claim, but it's
a good example of how digital rights management (DRM)
can push consumers into doing something they normally
wouldn't:
<http://www.eff.org/cgi/tiny?urlID=375>
(Washington Post; reg. unfortunately required.)
~ Unsigned, Sealed, Delivered
The Maine Supreme Court recently heard arguments in a case
involving the right to send anonymous email:
<http://news.mainetoday.com/apwire/D87I4DM80-10.shtml>
...as did a district court in Texas, which found that an
anonymous email user has the right to stay anonymous,
even in the face of a defamation lawsuit:
<http://www.eff.org/cgi/tiny?urlID=376>
(The New Standard)
~ It's All Downhill from Here
The Boston Globe has short piece on our favorite agitprop
group, Downhill Battle:
<http://www.eff.org/cgi/tiny?urlID=372>
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* 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:
Donna Wentworth, Web Writer/Activist
donna@eff.org