January 27, 2005

Texas Court Orders Voting Examiners' Meetings Opened to Public

Requires "Sunshine" in Process of Choosing E-voting Machines

Texas - A Texas court ruled today that state voting examiners may no longer bar the public from their meetings. In the case, ACLU of Texas v. Connor, the plaintiffs argued that the Texas Open Meetings Act should apply to meetings of the voting examiners. These meetings are used to decide what kinds of electronic voting machines will be used in upcoming elections. The Electronic Frontier Foundation (EFF) was co-counsel in the case.

"The court rightly rejected Texas' policy of shutting the public out of the processes for selecting voting technologies. The need for public trust in our election systems cannot be overstated, and this is a terrific step forward for the voters of Texas," said EFF Staff Attorney Matt Zimmerman.

The voting examiners are responsible for studying electronic voting machines and other voting technologies and recommending to the Secretary of State which systems should be certified for use in Texas. In the past few years, the Secretary of State routinely adopted the recommendations of the panel yet rebuffed efforts by the public to observe the proceedings, claiming that the panel is not subject to Texas' Open Meetings Act.

"I'm not at all surprised at this ruling," added Jon Lebkowsky of EFF-Texas, one of the plaintiffs in the case. "What surprised me was that the meetings weren't open in the first place!"

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 proper security and certification compliance issues.

"This ruling allows specialists in areas including computer security, accessibility, and minority rights to offer their own skills to complement the state's official election examiners," said Dan Wallach, an assistant professor in the Department of Computer Science at Rice University and outspoken critic of poorly designed electronic voting systems.

More on e-voting here.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Posted at 11:20 AM


January 24, 2005

EFF Announces Endangered Gizmos List

Project Demonstrates How Bad Law Ruins the Environment for Innovation

San Francisco - A new project of the Electronic Frontier Foundation (EFF) highlights the way misguided laws and lawsuits can pollute the environment for technological innovation. "Endangered Gizmos" is a natural history of technologies from the Betamax VCR to filesharing software that have been threatened or extinguished through ruthless litigation. The "Endangered Gizmos List" gives readers the vital statistics on a host of gadgets, along with steps they can take to save those that haven't yet been killed off.

The list also includes devices that have been saved by good laws. The VCR, for example, was rescued from extinction by the Supreme Court's landmark ruling in Universal v. Sony, which shielded the Sony Betamax VCR from being declared unlawful simply because people could use it to infringe copyright.

"Endangered Gizmos" debuts the same day that the opening briefs are being filed in MGM v. Grokster, a Supreme Court case the outcome of which could render extinct several currently legal technologies. The public-education project complements EFF's work defending StreamCast Networks in that case.

"This isn't about saving one or two geeky gadgets. It's about fostering technological development by letting products be designed by technologists, rather than Congress and the courts," said EFF Staff Attorney Wendy Seltzer. "What we're seeing is the beginning of the extinction of both current and future gadgets, due to a mix of proposed law, litigation, and overreaching use of existing law. Lawsuits are destroying future technological progress by killing off today's best innovations."

EFF will continue to post new profiles of at-risk technologies on the Endangered Gizmos website on a regular basis. "We hope the ranks of 'saved' gizmos will grow faster than the 'endangered' list," said Seltzer. "But until laws stop killing innovation, we'll be counting the bodies."

Contact:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Posted at 12:10 AM


January 20, 2005

Supreme Court Date Set for Grokster

Washington, DC - The US Supreme Court set the date for the oral argument in MGM v. Grokster for March 29, 2005, in Washington, DC. EFF is defending StreamCast Networks, the company behind the Morpheus peer-to-peer (P2P) software, against 28 of the world's largest entertainment companies.

The companies first brought this lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products in 2001, hoping to obtain a legal precedent that would hold all technology makers responsible for the infringements committed by the users of their products. The entertainment companies lost in District Court, then lost again on appeal to the Ninth Circuit Court of Appeals.

The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

On March 29, the Supreme Court will hear oral arguments from both sides. A final ruling is expected by the end of July 2005.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Posted at 02:40 PM


January 14, 2005

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 of DLA Piper Rudnick Gray Cary assisted EFF in preparing the FOIA request and will help with any litigation if the DOJ fails to respond.

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Posted at 09:27 AM

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.

"Closed meetings about these controversial voting machines create a troubling perception," said Jon Lebkowsky, President of the Electronic Frontier Foundation-Austin. "How can a citizen trust a certification process that's hidden from view? This sort of thing is exactly why we have an Open Meetings Act."

If the injunction is granted, the Texas Secretary of State has promised that the state will host a "public forum" where officials will discuss for the first time the issues they considered in their private meeting earlier this month.

"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."

The voting examiners are responsible for studying electronic voting machines and other voting technologies and recommending to the Secretary of State which systems should be certified for use in Texas. In the past few years, the Secretary of State has routinely adopted the recommendations of the panel, yet he has rebuffed efforts by the public to observe the proceedings, claiming that the panel is not subject to Texas' Open Meetings Act.

Here's the original complaint.

More on e-voting issues.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Posted at 09:13 AM


January 13, 2005

Will Blizzard Destroy the Future of Videogames?

Outcome of BnetD Case Could Eliminate Software that Extends the Gaming Experience

Eighth Circuit - Yesterday the Electronic Frontier Foundation (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, an 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."

Along with EFF, Paul Grewal and Richard Lin of Day Casebeer Madrid & Batchelder LLP are serving as pro bono co-counsel to the BnetD programmers. Counsel has asked the Eighth Circuit to hear oral arguments in the case, but the court has yet to decide if it will hear them.

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Posted at 10:10 AM


January 12, 2005

Sham Recount Process on Diebold E-voting Machines

Lawsuit Challenges Berkeley Election Officials in Measure R 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. Yesterday, the county announced that the recount had failed to change the result. They altered the final margin of defeat to 166 votes, attributing the change to absentee and provisional ballots -- the electronic voting machine count remained the same.

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.

"California law guarantees every voter the right to a recount and requires election officials to produce for public review all materials relevant to that recount," said Gregory Luke, attorney at the Santa Monica firm of Strumwasser & Woocher, which represents the plaintiffs Americans for Safe Access, and three individual Berkeley voters. "Because the Diebold machines purchased by Alameda County do not retain any ballots for the purpose of a recount, election officials must, at the very least, look at the information produced by the system's existing security features to give voters some circumstantial evidence that the machines performed properly and that vote data was not damaged or altered. Alameda County's refusal to allow the public to examine the audit logs and redundant memory renders the so-called 'recount' they conducted utterly meaningless."

"While it was easy to watch the recount of the paper ballots to make sure every vote was counted, the recount from the electronic voting machine was simply a 'rerun' of the original election results and gave us no assurance that the results were correct," added Debby Goldsberry of Americans for Safe Access.

"Recounts are one of the most important ways we detect vote fraud and error," said Matt Zimmerman, staff attorney for the Electronic Frontier Foundation, 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."

Americans for Safe Access is the largest national grassroots coalition working to protect the rights of patients and doctors to legally use marijuana for medical purposes. Measure R would have relaxed zoning laws for dispensaries, set up a peer review committee to oversee operations at the city's dispensaries, and replaced the city's current limit with one linked to a patient's need as defined by his or her physician.

A hearing in Alameda Superior Court is currently set for March 2.

Contacts:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Gregory Luke
Strumwasser & Woocher LLP
gluke@strumwooch.com

Hilary McQuie
Americans for Safe Access
+1 510 486-8083 (office)

Posted at 09:33 AM


January 10, 2005

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." Apple-watchers believe this product will be announced at Macworld. The Electronic Frontier Foundation (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?"

Contacts:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Posted at 10:21 AM


January 04, 2005

Music Industry Must Respect Privacy of Filesharers

Ruling in Charter Case Smashes DMCA Subpoena Powers

The Eighth Circuit Court of Appeals issued a decision today that will stop entertainment corporations from gaining access to the names of people using peer-to-peer (P2P) networks unless the companies file lawsuits against them and furnish actual evidence of copyright infringement.

The case was sparked by a series of subpoenas sent by the Recording Industry Association of America (RIAA) to Missouri-based Internet service provider (ISP) Charter Communications, Inc. The record companies claimed that these subpoenas, which demanded that Charter identify customers accused of offering infringing music on P2P networks, were authorized by the Digital Millennium Copyright Act (DMCA).

The Electronic Frontier Foundation (EFF), along with 21 other groups, including the American Civil Liberties Union (ACLU), the Consumer Federation of America (CFA), and the Computer & Communications Industry Association (CCIA), filed a "friend of the court" brief in the Charter case, urging the Eighth Circuit to determine that the same strong protections applied to anonymous speech in other contexts also apply when copyright infringement is claimed but has not yet been proven. In a victory for privacy and anonymity, the Eighth Circuit determined that DMCA subpoenas could not be used to get this information.

EFF Staff Attorney Wendy Seltzer noted that the RIAA has already changed its tactics for the better in current suits against filesharers. In these new cases, record companies generally file suit against "John Does." Said Seltzer, "In the 'Doe' lawsuits RIAA members are currently filing, a judge oversees the discovery process and can help protect ISP customers before their names are revealed." EFF has filed amicus briefs in several of the Doe cases, and some judges have limited the record labels' discovery of identities through mass lawsuits.

In December 2003, the DC Circuit ruled that the RIAA could not use the DMCA's non-judicial subpoenas to obtain subscriber identities from ISP Verizon Internet Services, Inc. "Charter should be congratulated for following in the footsteps of Verizon in standing up for the privacy of its users," said EFF Legal Director Cindy Cohn. The US Supreme Court rejected the RIAA's appeal of the Verizon case. Today's Eighth Circuit decision is an explicit endorsement of the DC Circuit's ruling.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Posted at 05:12 PM