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Recent EFF Legal Cases and Efforts
Our Legal Team's Docket for the last 2 years
Expansion of Wiretapping Authority
EFF is one of the over 150 members of the
In Defense of Freedom coalition that was formed to oppose the broad new
laws proposed after the September 11, 2001, attack. The EFF is concerned
that these laws were rushed through congress without significant debate and
make dramatic, permanent changes in the balance of our freedoms. EFF's
chief concerns are the addition of low-level computer intrusion and defacement
of web pages to the list of offences that allow wiretaps, something that
seems unrelated to terrorism, and the increase in the amount of surveillance
of e-mail that can be done without serious court review.
See:
EFF Senior Staff Attorney Lee Tien's
analysis of SA11752
EFF Legal Director
Cindy Cohn's Statement
EFF
press release on the issue.
EFF analysis of the
sunset provisions
EFF final analysis of the
legslation.
The Digital Millennium Copyright Act ("DMCA") was passed in 1998 over the
objections of many people, including scientists, librarians and cryptographers.
§ 1201 of the DMCA bans devices that enable circumvention of
technical protection systems, and also prohibits the circumvention of
technological protection or access control measures. More information on the
DMCA and it chilling effects may be found at
the Chilling EFFects Web page.
The DMCA is very bad news because it destroys the delicate
balance between copyright and First Amendment too heavily toward the
copyright holders. Circumvention of technical protection measures is
necessary in order to make fair use, do scientific research, and make
many kinds of ordinary, legal
uses of DVDs, such as playing them on Linux machines. (See Staff
Attorney Fred von Lohmann's
Unintended Consequences
Four Years under the DMCA. (See also Professor and EFF Board Member Pam Samuelson's
paper on why the DMCA is flawed.)
The Trusted Computer Platform Alliance (TCPA) has made news with its
system for locking down everyone's computers using integrated DRM mechanisms.
For an excellent background on this see
Dr. Ross Anderson's FAQ.
See also:
stoppoliceware.org;
Letter from
the ACM (Association for Computing Machinery); and
this article in
- Universal v.
Reimerdes (a.k.a. the NY DVD case)
Eight major motion picture studios brought a suit under the DMCA
against defendant, 2600 Magazine to enjoin it from publishing or
linking to DeCSS, a computer program that circumvents the encryption on
DVDs, called CSS. DeCSS was developed to help enable DVDs to be played
on computers running the Linux system. It also allows the
constitutionally protected fair use of DVDs, which is otherwise
prevented by the encryption.
The district court
found
that 2600 Magazine's publishing and linking to the
DeCSS code was circumvention under the DMCA, and 2600 was enjoined from doing so.
The 2nd Circuit Court of Appeals
affirmed, EFF moved for an
en banc hearing in NY; En banc denied
(Updated June 13, 2002)
At issue: Whether fair use, free software, linking and
reverse engineering will survive the digital age.
EFF's role: defending 2600 along with pro bono lead counsel Dean
Kathleen Sullivan of Stanford Law School.
- Felten v. RIAA
Professor Edward Felten and his team were frightened out of discussing their findings
that the music industry's new "security" technology is not very secure. The music
industry's claim, in part, is that Felten and his team of researchers have violated the
DMCA's anti-circumvention provisions.
EFF asked a federal court to rule that Princeton University Professor Edward Felten and his
research team have a First Amendment right to present their research on digital music
access-control technologies at the USENIX Security Conference this August in Washington, DC.
and that in the future they do not need to ask pernission each time they seek to publish
research in this area.
After the private defendants promised not to sue,
Professor Felten's team presented their paper to the USENIX conference on
August 16, 2001. The court then dismissed the case on the grounds that there
was not a current dispute between the parties, never reaching the question of
whether the DMCA was constitutional
Currently Professor Felten's team has decided to forgo ongoing appeals in
the light of government and industry assurance that academics are free to do
and publish research. EFF is monitoring the issue and if further action is
necessary we will take it. While we would have liked an
affirmative decision from the court, we still have to view this as a victory
because the opposition gave up attempts to silence the scientists.
At issue: The DMCA clearly limits scientific freedom, an extremely
valuable part of the First Amendment.
EFF's role: Pay for, serve as co-counsel, and coordinate the case.
-
U.S. v. Elcomsoft
(formerly U.S. v. Sklyarov)
The case involves Advanced eBook Processor (AEBPR) software legally developed
by Dmitry Sklyarov, in Russia, for his Russian employer Elcomsoft. According
to the company's website, the software permits eBook owners to translate
from Adobe's secure eBook format into the more common Portable Document
Format (PDF). The company maintains that the software only works on
legitimately purchased eBooks. Dmitry Sklyarov was arrested when he came to the
United States to give a talk on computer security and the case has proceeded
from there.
Currently the U.S. has dropped charges against Dmitry in return for testimony
which he would have provided for Elcomsoft anyway. Dmitry is presently back in
Russia.
On December 17, 2002, Elcomsoft was
found not guilty in an important victory for programmers and
the right to innovate.
What was at issue: Whether it is legal to build software tools with
substantial non-infringing uses, and whether U.S. law supersedes that of other
sovereign nations.
EFF's role:
EFF acted as amicus in this case.
EFF amicus brief
(updated June 14, 2002)
As part of our continuing efforts to spur discussion about the legal
issues involved in peer-to-peer systems, we offer former EFF Staff Attorney
Robin Gross's insight
into the recent Napster decision, and a white paper summary written
by Fred von Lohmann, formerly a fellow at the Berkeley Center for Law and
Technology and now EFF's Senior IP Counsel, discussing post-Napster legal
tips for peer-to-peer developers. We urge any developers of such
systems who have further questions about the legal and policy issue
surrounding P2P to talk to us directly.
The right to speak and post anonymously online is being threatened by
companies and individuals who have begun using civil subpoenas to demand
that the speaker's Internet service provider reveal his or her identity.
Unlike criminal warrants, civil subpoenas do not require showing of
probable cause or any other court review. The cases we have generally
worked on involve people who anonymously posted comments on chatrooms
for publicly traded companies and have subsequently been targeted by
employers or other parties who want their identities revealed.
-
Kesler v. Doe
The EFF filed an amicus brief in the California Court of Appeal in support
of a John Doe, "Mezzzman," who was sued by the president of Metalclad after
posting messages critical of him on a Yahoo message board. Mezzzman
brought a motion under a California law, called the anti-SLAPP law
(Strategic Lawsuits Against Public Participation), designed to allow
defendants in cases aimed at silencing their speech to quickly dispose of
the case. The case is anticipated to be the first to consider the
application of the California law to anonymous Internet speech.
AT ISSUE: Whether and how California's law protecting speakers against
lawsuits aimed at silencing them applies to anonymous speakers on the
Internet.
EFF Role: Amicus Curiae on its own behalf. Pro Bono counsel for Mezzzman
is Ryan Roth of the lawfirm of Paul, Hastings, Janofsky & Walker LLP in Los
Angeles, CA
(June 14, 2002)
- Pre-Paid Legal v. Sturtz et al.
In this case Pre-Paid Legal wanted to uncover the identies of two John/Jane Does through a deposition
to discover whether they are the same people who are being sued in the main legal case.
http://www.eff.org/Legal/Cases/PrePaid_Legal_v_Sturtz/
EFF and the John/Jane Does were successful in blocking discovery and the court is in the process of
writing the order. (August 21, 2001)
- In re:
2TheMart.com
In a precedent-setting ruling on free speech in cyberspace, a federal court in
Seattle upheld the right to speak anonymously on the Internet. U.S. District Court
Judge Thomas Zilly quashed a subpoena
seeking to force an Internet service provider to disclose the identity of persons who
spoke anonymously on an Internet message board. (See EFF's press release .)
The decision was the first in the country to address the standard for
compliance with a subpoena where the "J. Doe" (who used the pseudonym
NoGuano) was not a party to the case, and no allegations of liability
against Doe had been made. The court held that the identities would
not be turned over unless (1) the subpoena was issued in good faith
and not for any improper purpose; (2) the information sought relates
to a core claim or defense; (3)the identifying information is directly
and materially relevant to that core or defense; and (4) information
sufficient to establish or disprove that claim or defense is
unavailable from any other source.
The official citation for the case is: John Doe v. 2themart.com Inc., 140 F. Supp.
2d 1088, 1092 n.2 (W.D. Wash 2001);
The temporary url to the decision
is at
http://www.eff.org/Temp/20010427_2themart_order.tif . The format is a multi-page fax
format and we will post an html format when one becomes available, at
http://www.eff.org/Legal/Cases/2TheMart_case/ .
On June 19, 2001 the Ninth Circuit denied 2TheMart's petition to
take an interlocutory (pretrial) appeal of the decision.
(updated June 14, 2001)
At
issue: Whether civil subpoenas
can be used to intimidate individuals who are not even parties to the case into self-censoring
their online speech and bully service providers into forsaking the
rights of their users to speak freely.
EFF's role: Pro bono defense for one of the anonymous posters along with
Aaron Caplan at the ACLU of Washington.
- Medinex_v._Awe2bad4mdnx
In this case, the EFF defended critics of a dot com company. On
May 7, 2001 the EFF, along
with San Francisco law firm Farella, Braun &
Martel, filed a motion in the Federal District Court in
the Northern District of California to defend the right
of anonymous critics to express their views online
without fear of arbitrary disclosure of their identity.
The motion sought to prevent an Idaho company called
Medinex Systems, Inc. from learning the identities of
14 John Does who participated on a Yahoo! message board. On May 21, 2001, Medinex
dismissed the suit before a hearing could be held. (update May 21, 2001)
At
issue: Whether civil subpoenas
can be used to chill online speech and bully service providers into forsaking the
rights of their users to speak freely.
EFF's role: Pro bono defense for the anonymous posters along with Farella, Braun &
Martel.
-
Rural/Metro v. Doe
EFF represented a Doe in this case, where Plaintiff Rural/Metro Corporation issued a
third-party subpoena to online service provider Yahoo! Inc. requiring Yahoo to reveal
the identities and portions of the online correspondence of individuals who participated
in a public discussion concerning
Rural/Metro's business held on a Yahoo message board. Without setting forth a single
message, or indeed a single fact, Rural/Metro alleged that Does posted false,
misleading and/or deceptive information about Rural/Metro, that Does may possibly
sometime in the future reveal unspecified trade secrets belonging to Rural/Metro.
(Updated September 25, 2001)
Rural/Metro withdrew their request.
At issue: Whether civil subpoenas can be used to intimidate individuals into
self-censoring their online speech and chill constitutionally protected anoynmous
speech.
EFF's role: Pro bono defense along with attorney
Nicole Berner of Jenner & Block .
-
Hritz v. Jane Doe
EFF defended a "Jane Doe", who anonymously made several comments on
a Yahoo! message board devoted to AK Steel (formerly Armco Steel).
Among these messages were statements that John Hritz, executive vice
president and general counsel for AK Steel, was too litigious. Hritz
served AOL Online (AOL) with a subpoena seeking the identity of Jane
Doe.
EFF sought to remove the case to federal court. It was returned to state court.
Currently the case is dormant. Hritz has not sought Jane Doe's name a second
time. (Updated September 25, 2001)
At issue: Whether civil subpoenas can be used to intimidate
individuals into self-censoring their online speech and bully service
providers into forsaking the rights of their users to speak freely.
EFF's role: Probono defense along with consumer group
Public
Citizen and help from
Hogan & Hartson.
-
HighSchoolNation.com
HighSchoolNation.com: EFF, along with the ACLU of Northern
California and San Francisco's Farella, Braun & Martel are representing a
high school student who was threatened with expulsion, criminal charges and
civil charges for hosting a website where students could anonymously rate
their teachers. The school and the local police attempted to convince the
student to turn over identifying information about posters of allegedly
defamatory and threatening messages and to disable the website. EFF pointed
out that, under the Electronic Communications Privacy Act, the student is
prevented from turning over this information without a subpoena and that
under the Communications Decency Act section 230 he cannot be held civilly
liable for the allegedly defamatory messages of others.
Nothing ever really came of this case and the high school student was not
prosecuted or expelled.
At issue: Protection of anonymity of speakers on a website forum;
webmaster protection for hosting a free speech website.
EFF Role: Legal representation of the high school student.
-
Auerbach v. ICANN
Auerbach v. ICANN: EFF represents a member of the ICANN Board of Directors
in a lawsuit that seeks to force ICANN management to grant him some reasonable
access to corporate records. Karl Auerbach, the North American Elected Director
of the Internet Corporation for Assigned Names and Numbers (ICANN) began
asking for corporate records in December 2000, shortly after he was elected
to the Board. ICANN management dragged its feet for nine months, then issued a
new "policy" -- never brought before the Board for discussion or vote --
requiring Auerbach to sign a non-disclosure agreement that placed Auerbach's
ability to discuss the records at the discretion of ICANN management.
Carl Auerbach won and was given access to the documents.
At issue: ICANN's accountability to the public begins with
accountability to its own Board of Directors
EFF Role: Counsel to Mr. Auerbach along with Attorney James Tyre.
-
Ford v. Great Domains
Using laws intended to prevent "cybersquatting", Ford sued
several independent Web site operators whose domain names contain, in
part, the words "volvo", "ford" and "jaguar", but whose content and
appearance vastly differ from Ford's corporate sites. In the most
egregious example, Ford is accusing www.jaguarcenter.com-a site about
big cats created by a child- of trademark infringement. See also the Detroit
Free Press article about this case.
EFF defendents have challenged jurisdiction, stating it was unfair to
force all of them - several of whom live abroad - to defend the case in Detroit.
The court denied the motion and allowed limited discovery into the jurisdictional
issues.
At issue: Protecting the right to publish on the Internet
without fear of being unfairly sued for trademark infringment;
preventing "domain name hijacking", in which large corporations use
their resources to effectively steal desired domain names from
individuals who may not be able to afford to defend themselves.
EFF's role: Defending several of those charged, along with
pro bono assistance from Eric Grimm and David Lowenschuss in Michigan.
Resolution:Ford settled allowing several EFF defendants to keep their
domains; the rest let their registrations lapse. No money changed hands. After
EFF objected, Ford also dropped its claims against all un-served defendants.
(Moved to recent_legal June 14, 2002)
- Heathmount
Corporation v. Technodome.com
This case addressed whether the in rem provisions of the
Anti-Cybersquatting Consumer Protection Act (ACPA) are
unconstitutional because they violate due process guarantees. In this
case, Heathmount Corporation, a Canadian entertainment company, used the
ACPA to file an in rem action in a Virginia court. Heathmount
charged the owner of two domain names, Techodome.com and
DestinationTechnodome.com, with cyberpiracy. The defendant lives in
Canada and has no links with the United States; the same is
true of the plaintiffs. Since neither the plaintiff nor the defendant
has any real ties to Virginia, is it within due process to force the
defendant to defend the action there?
Technodome withdrew and the case was dismissed as moot.
(updated January 30, 2002)
At issue: That due process guarantees are preserved in
domain name disputes.
EFF's Role: Defending Technodome along with pro bono counsel
Eric Grimm.
-
FleetBoston Financial Corp v. FleetBostonFinancial.com (Link forthcoming)
This case concerned an attempt to sue a domain name in Boston under the
in rem statute discussed in Heathmount, above. The registrant of the
domain name lived in Brazil and had no contacts to Boston.
At issue: That due process guarantees are preserved in domain
name disputes.
EFF's Role: Filed an amicus brief with help of pro bono
counsel Eric Grimm
Disposition: On March 28, 2001, the District Court held that
in rem statute could not support case filed in Boston when
neither the registrar, registry or domain name authority was located
there.
- American
Amusement v. Kendrick
This case considered an Indianapolis ordinance that censored arcade video
games based upon "violent content". The Seventh Circuit
decision
overturned
the district court's finding that an Indianapolis video game censorship law
was constitutional.
At issue: First Amendment rights are threatened by this kind
of censorship.
EFF's role: Working with Robert-Corn Revere and Ronald
Wiltsie II of Hogan & Hartson to
oppose this ordinance. EFF filed an amicus
brief with the 7th Circuit. The
7th Circuit reversed the District Court decision on March 23, 2001,
adopting a strong endorsement of the First Amendment rights of children
and the legal analysis urged by the EFF amicus. This case is over and
EFF is again on the winning side. (updated September 25, 2001)
Active Case
- Public Records
One of the next privacy battles will be about whether to put public
records up on Web sites, and if posted at all, how much of the public
record will be up on the site. For example, bankruptcy records, which
are public records, typically include social security numbers of the
parties who have declared bankruptcy. By including social security
numbers for all to see, the threat of identity theft to the individual
is greatly increased.
At issue: preserving both personal privacy (and certain
legitimate business interests) on the one hand, while also preserving
the public's, and especially journalists', rights of access to public
record court documents. While the seeming incompatibility of these
goals is not a new debate, it is certainly one that is coming to a
head.
EFF's role: EFF is participating in the Judicial Conference
Study's call for comments on the issue.
- EFF, et al., v. FCC
(CALEA Case)
EFF is part of a civil liberties coalition to defeat The
Communications Assistance for Law Enforcement Act (CALEA), a 1999 order
granting the FBI extensive new wiretapping powers. Agency filings are
ongoing.
At issue: CALEA violates 4th Amendment rights to privacy,
potentially giving law enforcement more information than they are
entitled to.
EFF's role: EFF and other privacy and civil liberties groups
are organized to fight CALEA.
One of the favorite tactics of well financed entities when facing embarassing
information is to seek to silence the adversary through expensive lawsuits.
-
Kesler v. Doe
The EFF filed an amicus brief in the California Court of Appeal in support
of a John Doe, "Mezzzman," who was sued by the president of Metalclad after
posting messages critical of him on a Yahoo message board. Mezzzman
brought a motion under a California law, called the anti-SLAPP law
(Strategic Lawsuits Against Public Participation), designed to allow
defendants in cases aimed at silencing their speech to quickly dispose of
the case. In early February 2002 the case the case settled before the court
ruled on the appeal.
AT ISSUE: Whether and how California's law protecting speakers against
lawsuits aimed at silencing them applies to anonymous speakers on the
Internet.
EFF Role: Amicus Curiae on its own behalf. Pro Bono counsel for Mezzzman
is Ryan Roth of the lawfirm of Paul, Hastings, Janofsky & Walker LLP in Los
Angeles, CA (February 20, 2002).
-
Banco Nacional de Mexico v. Narco News, Giordano, et al.
In this case Banco Nacional de Mexico is seeking to silence
Narco News
because of stories published alleging connection to the cocaine trade of one
of the heads of the Banco. After they couldn't get a judgment in Mexico, they
went venue shopping and brought a new suit in New York alleging libel.
At issue: (1) the ability of foreign plaintiffs to forum shop abusively,
subjecting online, independent journalists to foreign laws and distant fora that
will chill the Internet’s free press; and (2) the freedom of online journalists
to republish articles on the Internet from publications in the offline realm
without unreasonably being subjected to liability.
On December 5, 2001, the New York Supreme Court of New York
agreed
with the Electronic Frontier Foundation (EFF) that online journalists have the
same First Amendment protections as offline journalists. The court dismissed
a case seeking to hold Narconews.com liable for defamation for its coverage
of claims that the president of the Banamex, the Bank of Mexico, was engaging
in the drug trade.
EFF's role: EFF submitted
a
Friend of the Court(amicus) brief supporting dismissal of narconews.com
libel claims.(July 16, 2001)
Copyright and ISP Liability
(Active case only)
- Als Scan v.
RemarQ
This case deals with a copyright owner seeking to compel an online
service provider to remove/disable access to two entire news groups
merely by alleging that they contained unspecified articles that
infringe copyrighted works. EFF submitted an amicus brief asking for a rehearing
which was denied. This case is over (updated July 6, 2001)
At issue: Service-provider responsibility for user copyright
infringements poses a threat to free speech on the Internet.
EFF's role: EFF submitted an amicus
brief on behalf of RemarQ.
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