EFFector, Vol. 14, No. 39; Dec. 17, 2001

EFFector Vol. 14, No. 39 Dec. 17, 2001 editors@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 199th Issue of EFFector:

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Government Agrees to Defer Prosecution of Dmitry Sklyarov

Russian Programmer Freed, Must Testify Against Employer

Electronic Frontier Foundation Media Release

For Immediate Release: Thursday, December 13, 2001

San Jose - U.S. Federal Court Judge Ronald Whyte today signed a court agreement permitting Russian programmer Dmitry Sklyarov to return to his native land after a five-month enforced stay in the U.S. The agreement should eventually clear him of all charges brought against him for distributing software that permits electronic book owners to convert the Adobe e-book format so they can make use of e-books without access restrictions.

As part of the agreement, Sklyarov will testify for the government in the case that remains against Elcomsoft, Sklyarov's employer. He will likely testify on behalf of Elcomsoft as well.

"Dmitry programmed a format converter which has many legitimate uses, including enabling the blind to hear e-books," explained EFF Intellectual Property Attorney Robin Gross. "The idea that he faced prison for this is outrageous."

"There was a tremendous outpouring of grassroots support for Dmitry and against the current U.S. copyright law, and EFF is proud to have been part of such a successful effort," stated EFF Executive Director Shari Steele. "I'm disappointed, however, that the government has decided to string this along instead of admitting its mistake in bringing these charges against Dmitry in the first place."

EFF weakened the case against Sklyarov by negotiating with Adobe representatives on July 20, 2001, resulting in a statement from Adobe saying that the company no longer wished to pursue any case against Sklyarov. EFF also met with representatives of the U.S. Department of Justice for the Northern District of California on July 27 pursuing negotiations aimed at dropping all charges against Sklyarov and securing his immediate release from jail.

The 27-year-old programmer was arrested on July 16 and held in jail until August 6, when he was released on $50,000 bail on condition he remain in California.

Sklyarov, who has been living in San Mateo with his wife and two children pending resolution of the case, has often expressed his eagerness to return to Russia.

Sklyarov's case is the first time a programmer was jailed simply for coding and distributing software. The software developer faced up to 25 years in prison under the Digital Millennium Copyright Act (DMCA) in the first criminal prosecution brought under the controversial statute which forbids distributing technology or information that can be helpful in bypassing technological restrictions. The case is one of a series of cases brought under the DMCA, a law many experts feel pushes the balance of copyright law too far toward the companies holding the copyrights and away from traditional fair use of copyrighted materials, for example in research and education.

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California Court Decides E-mail Pampleteer Case

You Could Be Sued for Sending Unwanted E-mail

Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, December 11, 2001

Sacramento, California - A split California Court of Appeal decided yesterday that companies can sue those who send unwanted e-mail to their employees once the company warns them not to send more e-mail.

The case, called Intel v. Hamidi, arises from six e-mail messages sent by Ken Hamidi during a two-year period to worldwide employees of Intel. The messages admittedly did no harm to Intel's computer systems and caused no delays in its computer services. Nonetheless, in a 34 page opinion, the Third Appellate District Court in California ruled that sending unwanted e-mails was an illegal "trespass."

"If left standing, this ruling effectively breaks the Internet," said Cindy Cohn, Legal Director of the Electronic Frontier Foundation, which submitted an amicus brief in the case. "Anyone who sends e-mail messages after having been told not to could risk a lawsuit from recipients."

"Mr. Hamidi is a high-tech pampleteer. An injunction preventing him from sending his messages when those messages did not harm Intel's computer system violates his First Amendment rights," added Ann Brick of the ACLU of Northern California, who argued the case on behalf of Hamidi. The ACLU also submitted an amicus brief in the case.

One of the judges dissented from the majority and, agreeing with the ACLU and EFF, wrote:

"Under Intel's theory, even lovers' quarrels could turn into trespass suits by reason of the receipt of unsolicited letters or calls from the jilted lover. Imagine what happens after the angry lover tells her fiancée not to call again and violently hangs up the phone. Fifteen minutes later the phone rings. Her fiancée wishing to make up? No, tresspass to chattel."

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About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world:
http://www.eff.org/

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NY Court Rules Online Coverage Protected Speech

Praises Electronic Frontier Foundation Court Brief

Electronic Frontier Foundation Media Release

For Immediate Release: Monday, December 10, 2001

San Francisco - A New York court agreed with the Electronic Frontier Foundation (EFF) Dec. 5 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.

"This court finds that Narco News is a media defendant and is entitled to heightened protection under the First Amendment," the decision states.

"We're pleased that the court flatly rejected attempts to treat Internet reporters differently than reporters in the real world," said EFF Legal Director Cindy Cohn.

The EFF had filed an amicus brief in support of Narconews.com in the case brought by Banamex, referred to by the court decision.

"Banamex attempted to squash Narco News Bulletin's right to freely report public interest news," commented Thomas Lesser, attorney for Narconews.com. "By ruling that bare allegations alone cannot support a defamation lawsuit, the judge properly dismissed the case outright, recognizing that defamation lawsuits by their nature chill First Amendment rights."

[Note: Though the court is called the "Supreme Court" of its district, it is the NY equivalent of what most states call Superior Court, and is roughtly the state equivalent of a federal District Court.]

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USAPA Sunset Provisions Could Leave Congress in the Dark

Ongoing Oversight of Anti-Terrorism Law Called For

Introduction:

The USA Patriot Act (USAPA) represents a sweeping increase in the power of both domestic law enforcement and international intelligence agencies. With almost no debate and a suspension of the normal review processes, Congress opened the door for a much more in surveillance of both American citizens and immigrants.

During the abbreviated legislative process, several members of Congress expressed concern about its breadth, about the lack of debate and the suspension of normal Congressional processes. As a result of these concerns, USAPA ¤224 was added. This section, appropriately titled "Sunset," set an expiration date of December 31, 2005 for several of the surveillance provisions of the new law. The Sunset provision was intended to give Congress and the public the chance to evaluate how law enforcement exercised some of its broad new powers and to decide whether the serious reduction of American privacy and civil liberties enacted by USAPA was worthwhile.

Yet without a vigilant public and diligent exercise of power by Congress, there will be no objective factual basis on which to evaluate the impact of USAPA. This is because little or no reporting is currently required by intelligence agencies or law enforcement about how they use these new powers.

EFF urges Congress members, especially those of the Intelligence and Judiciary Committees, to exercise their plenary powers to hold oversight hearings and require ongoing comprehensive reports about how these new powers are being used and that, whenever possible, the information contained in those reports be provided to the public. Such hearings should begin immediately, since the powers granted by USAPA are already being used. They should continue periodically through 2005 and, if necessary, beyond that date.

Support EFF This Holiday Season!

As the holiday season of giving approaches, we ask that you support the Electronic Frontier Foundation (EFF) and the work that we do. EFF has been fighting to protect rights in cyberspace for over 11 years. No organization has our track record for effective advocacy in the online world. And at no time have we needed your support more.

The current legal/political climate is very difficult for civil liberties. Indeed, many of the rights that EFF and others have fought so hard to secure are in jeopardy of disappearing. EFF is fully engaged in preserving existing rights and in fighting new legislation that would curtail individual liberties. These efforts along multiple fronts press hard upon our resources, and we need your support to ensure that a rational voice for individual rights continues to be heard.

Please Resubmit Nominations for the EFF Pioneer Awards

We are re-issuing this call for nominations, as an unforeseen complication with our mail system silently prevented the receipt of nominations submitted up until Mon., Dec. 9. We have corrected this problem. If you submitted a nomination before that date, please re-submit it. Thank you and apologies for the inconvenience.

In every field of human endeavor, there are those dedicated to expanding knowledge, freedom, efficiency, and utility. Many of today's brightest innovators are working along the electronic frontier. To recognize these leaders, the Electronic Frontier Foundation established the Pioneer Awards for deserving individuals and organizations. The Pioneer Awards are international and nominations are open to all. The deadline for nominations this year is Feb. 15, 2002 (see nomination criteria and instructions below).

You may send as many nominations as you wish, but please use one e-mail per nomination. You may submit your entries to us via e-mail to: pioneer@eff.org. Just tell us:

You may attach supporting documentation as RTF files, Microsoft Word documents, or other common binary formats, or as plain text. Individuals, or representatives of organizations, receiving an EFF Pioneer Award will be invited to attend the ceremony at the Foundation's expense.

There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply:

The 11th annual EFF Pioneer Awards will be presented in San Francisco, California, in conjunction with the 12th Conference on Computers, Freedom, and Privacy (CFP2002). All nominations will be reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.

DMCA Slogan Contest - Help Protect the Intellectual Commons

The DMCA affects every American, indeed, every human on the planet. The problem is that the average person doesn't realize this. EFF wants the input of our supporters to come up with slogans that will raise the mainstream consciousness to the destructive effects of the DMCA and inspire us all to continue the fight for free expression.

Put on your thinking caps, summon the creative muse and submit ideas for slogans and "soundbytes" to help us fight the DMCA. If your idea is chosen, you will win your choice of vintage EFF T-shirts. Send your entry to slogan@eff.org. Thanks for your help.

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Editors:
Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster
editors@eff.org

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