Anonymous Critics' Identities Protected

Free Speech Prevails When Over 100 Defendants Are Dropped from Suit in Utah

Utah - Private information about anonymous online critics was protected this week when a Utah man dropped his lawsuit against people who had allegedly made critical comments about him on message boards and blogs, including the Yahoo! SCOX board. The plaintiff in the case had asked the court to let him use the subpoena process to unmask his anonymous "John Doe" critics.

The Electronic Frontier Foundation (EFF) and the ACLU of Utah opposed his efforts, filing a friend-of-the-court brief arguing that the First Amendment prohibits such subpoenas unless the court first confirms the merits of the litigant's claims. The Utah District Court agreed and demanded that the plaintiff submit additional information showing his good faith efforts to contact the defendants, the likelihood of jurisdiction, and the viability of his claims. Instead, the plaintiff declined to submit the requested information and dismissed the anonymous Yahoo! message board defendants from the case.

"In keeping with the nationwide trend, the Utah District Court recognized that an online speaker's identity should not be exposed unless the litigant can show that the claims are viable and that the litigant has no other way of getting the information," said EFF Staff Attorney Corynne McSherry. "The court made the right call."

The plaintiff stated on his website that he had decided "anonymous speech is worth protecting." EFF agrees.

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

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

Sun's "Open Media Commons" Is More Like a Gated Community

EFF Warns Consumers That Digital Rights Management Is Incompatible with Fair Use

San Francisco, CA - On Monday, Sun Microsystems announced its new "Open Media Commons," a digital rights management (DRM) project that the company claims will foster sharing of media while protecting copyrights. However, Sun has offered no evidence that its DRM system will be any better than the Microsoft DRM that it's supposed to challenge.

"No one woke up this morning and said, 'I wish Sun would figure out a way to let me do less with my music and movies,'" said Cory Doctorow, the Electronic Frontier Foundation's European Affairs Coordinator. "DRM doesn't sell hardware, software, or movies. The only reason to build DRM is to trade your users' freedoms for a bit of favor from the entertainment companies, a promise that they'll generously allow your record player to play their records -- provided it meets with their approval. If Sun wants to ship technology that competes with Microsoft DRM, it should start by asserting that copyright holders never get to design the record players their records play on."

Any software system, open or not, that blocks users from making legal use of digital content is not consumer friendly. And DRM systems are notorious for blocking people from making fair uses of content by preventing the duplication of all works, even if those works are in the public domain, are being copied for educational purposes, or are publicly owned materials such as government-gathered facts. Because the Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent DRM, there is no lawful way for people to override DRM systems -- even if they are doing it to make legal copies.

Sun says one of its goals with Open Media Commons is specifying "open, royalty-free digital rights management and codec standards" to "ensur[e] intellectual property protection." The problem with this approach is that making DRM "open" and "royalty-free" doesn't make it any less capable of restricting the public's rights under copyright.

Using "commons" in the name is unfortunate, because it suggests an online community committed to sharing creative works. DRM systems are about restricting access and use of creative works. A better way to protect the public's ability to make fair use of their media is to support the Digital Media Consumers' Rights Act (DMCRA, HR 1201). That bill would permit people to circumvent DRM on media in order to make a legal use of that media.

Contacts:

Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

Seth Schoen
Staff Technologist
Electronic Frontier Foundation
seth@eff.org

Digital Artists Deserve the Right to Copy Movies

EFF Asks Federal Court to Save Fair Use on "Intermediate Copies"

Colorado - Yesterday the Electronic Frontier Foundation asked the Colorado Federal District Court to rule that copying an entire movie to a computer to make a new, lawful work is fair use. The case, Huntsman v. Soderbergh, involves the companies Family Flicks and Play It Clean Video, which make and distribute copies of movies with sexual and violent content removed. To make these "clean" copies of popular films, the companies must first make an "intermediate copy" of the entire movie on a computer in order to edit it.

Members of the Motion Picture Association of America (MPAA), along with several prominent film directors, claim that copying movies in order to make them "clean" is copyright infringement. In a friend-of-the-court brief, EFF argues that as long as making clean movies is not itself an infringing activity, the practice of making intermediate copies should be considered non-infringing also.

This is a important point, because intermediate copies are crucial to the process of creating new copyrighted works. A documentary filmmaker, for instance, might need to make temporary intermediate copies of movies in order to get footage for a film. In the software industry, the process of duplicating a copyrighted work to make an original work is known as reverse engineering, and it has been ruled a fair use in several courts.

"People who make movies should have the same rights software engineers have had for years," said EFF Staff Attorney Jason Schultz. "Fair use makes new art possible."

Contacts:

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

EFF Wants You to Make Online Anonymity Easy

Announcing the Tor Graphical User Interface Competition

San Francisco - Now information designers can make it easier for people to protect themselves online. The developers of Tor, a software tool for communicating anonymously online, today announced the Tor graphical user interface (GUI) competition. Entrants will create a usable and aesthetically pleasing GUI for the Tor program, which will allow people to install and configure Tor easily and monitor the software's performance while it's running.

"Security depends on knowing what's working correctly and what isn't," said Roger Dingledine, Tor project leader. "A good interface tells users what's going on so they can make smart decisions."

Tor, which is currently being developed with support from the Electronic Frontier Foundation, helps anonymize web browsing and publishing, instant messaging, IRC, SSH, and other applications that use the TCP protocol. Tor also provides a platform on which software developers can build new applications with built-in anonymity, safety, and privacy features.

The competition has two phases. First, there will be a design competition where entrants can submit mock-up sketches of good interfaces. Second, there will be a competition to create working implementations of good interfaces. People are encouraged to submit to either phase or both phases. Winning entries will be open source, exhibit strong graphic design, and include an intuitive and simple interface. Students, freelancers, and professionals at all levels are encouraged to enter. Everyone who enters will get a free Tor t-shirt, and the best sketches and working implementations will be published on the Tor website.

The competition winners will be announced at the 2006 SOUPS conference.

Contact:

Chris Palmer
Technology Manager
Electronic Frontier Foundation
chris@eff.org

Anonymous Online Critics Should Not Be Silenced by Lawsuit

EFF Opposes Subpoenas Seeking to Reveal the Identities of Web Writers, Bloggers

Utah - A case brought in a US district court by a Utah man threatens to undermine the First Amendment right to speak anonymously on issues of public concern. In Merkey v. Yahoo SCOX et al., the plaintiff requested an expedited process for serving subpoenas that would unmask anonymous "John Doe" critics who participated in a discussion of another court case, in which Utah-based technology company The SCO Group, Inc., is suing IBM.

The Electronic Frontier Foundation (EFF), along with the American Civil Liberties Union (ACLU) of Utah, has filed a friend-of-the-court brief in the case, arguing that a court must review the merits of a litigant's claims before legal process can expose the true names of online Does.

"Frivolous litigation shouldn't be used to circumvent the First Amendment," said EFF Staff Attorney Corynne McSherry. "Before an online speaker is exposed, litigants must show that the anonymous poster's identity is central to their claims, that those claims are viable, and that the litigant can acquire the information in no other manner."

The case arose out of several anonymous postings that appeared in a Yahoo group, as well as the weblogs Groklaw and IP-Wars.net.

Contact:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Service Technicians Can’t Snoop on Your Hard Drive for the Government

EFF Weighs in on Computer Privacy Case in Washington

Washington - Imagine if the law permitted the people who service your computer to share all the personal information on your hard drive with the police, without your consent and without a search warrant. A case on appeal to the Washington State Court of Appeals, State v. Westbrook, threatens to allow just that, turning your friendly neighborhood computer repair technician into a government informer.

Last week, the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief in support of the respondent, Robert Westbrook, arguing that citizens have a reasonable expectation of privacy in the contents of their computers, and that their Fourth Amendment rights don't disappear when a computer is delivered to a technician for servicing.

When Westbrook dropped off his personal computer at a Gateway Computer store for servicing, a technician saw private files on the computer that he thought might be illegal. Gateway called the police, who searched through personal files on Westbrook's hard drive looking for more evidence -- before ever getting a warrant. The trial court found, and EFF argues in its brief to the appeals court, that this violated Westbrook's Fourth Amendment rights.

"Customers who drop off their computers for servicing reasonably expect that their private data won't be handed over to the police without a warrant," said EFF Staff Attorney Kurt Opsahl. "Allowing computer technicians to snoop on people's private data is like putting surveillance cameras in dressing rooms. The violation of so many people's privacy far outweighs any benefits that might be gained. It would mean you couldn't use a personal computer for personal business."

EFF was assisted on the brief by criminal appeals specialist Suzanne Lee Elliott of Seattle, who served as local counsel.

Contact:

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

Victory in US v. Councilman Case

Appeals Court Preserves Email Privacy

Massachusetts - In a long-awaited decision, the full First Circuit Court of Appeals today overturned a First Circuit panel decision that had allowed an email service provider to secretly monitor the content of users' incoming messages without violating federal wiretap law. The Electronic Frontier Foundation (EFF) and other privacy organizations submitted briefs in the case urging that the earlier decision be reheard by all seven First Circuit judges.

The defendant in the case, Bradford Councilman, is a seller of rare and used books who also offered email service to customers. Councilman had secretly configured this system to copy all customer email coming from Amazon.com, his competitor, and send it to him. The original First Circuit panel had declared this action to be legal because the messages were in "electronic storage" on the defendant's system for a few milliseconds when they were copied. Thus, the panel argued, Councilman was not in violation of the Wiretap Act. Instead, the panel said that only the Stored Communications Act (SCA) applied to his activities. And the SCA does not place any limits on a communications provider's access to customers' stored messages.

The full court's new decision makes clear that even though emails are stored in computer memory during transmission, it is still criminal to intercept those messages without the user's permission or a court-issued wiretap order. The Wiretap Act doesn't apply merely to communications that are tapped from the wire, but also covers communications that are in "transient electronic storage that is intrinsic to the communication process," according to the court.

"Today's decision reaffirms that email providers can't snoop on their customers' incoming messages any time they like, and that the law protects the privacy of your email just as much as it protects the privacy of your phone calls," says Kevin Bankston, EFF attorney and Equal Justice Works Fellow. "The First Circuit correctly recognized that when law professors, privacy activists, the Department of Justice, and the drafters of the law all agree on what the wiretap statute means, as was the case here, they probably know what they're talking about."

Contacts:

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

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

EFF Announces Two New Hires

Corynne McSherry Joins Legal Staff; Nicole Nguyen Heads Membership

San Francisco, CA - The Electronic Frontier Foundation (EFF) is pleased to announce the addition of two people to our staff. Corynne McSherry, a Staff Attorney, will be filling out the organization's legal team of intellectual property experts. Nicole Nguyen joins EFF's development team as Membership Coordinator, working on outreach campaigns and membership drives.

McSherry specializes in intellectual property and contract issues. Prior to joining EFF, she was a civil litigator at the law firm of Bingham McCutchen, LLP. She has a Ph.D from the University of California at San Diego and a J.D. from Stanford Law School. While in law school, Corynne published "Who Owns Academic Work: Battling for Control of Academic Intellectual Property" (Harvard University Press).

Before joining EFF, Nguyen worked as a Program Representative for the Haas School of Business at the University of California, Berkeley, and as a Senior International Assignment Consultant for Cendant Mobility. She has a Bachelor of Arts in Economics and a minor in Political Science (with emphasis in International Relations) from the University of California, Irvine.

"We're thrilled to have brought Corynne and Nicole on board," said EFF Executive Director Shari Steele. "With their track records and skills, we're sure they'll make great additions to our team."

EFF currently has 26 employees, including two who are based outside the US and working on international issues.

Contact:

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

FCC Issues Rule Allowing FBI to Dictate Wiretap-Friendly Design for Internet Services

Tech Mandates Force Companies to Build Backdoors into Broadband, VoIP

Washington, DC - Today the Federal Communications Commission (FCC) issued a release announcing its new rule expanding the reach of the Communications Assistance to Law Enforcement Act (CALEA). The ruling is a reinterpretation of the scope of CALEA and will force Internet broadband providers and certain Voice-over-IP (VoIP) providers to build backdoors into their networks that make it easier for law enforcement to wiretap them. The Electronic Frontier Foundation (EFF) has argued against this expansion of CALEA in several rounds of comments to the FCC on its proposed rule.

CALEA, a law passed in the early 1990s, mandated that all telephone providers build tappability into their networks, but expressly ruled out information services like broadband. Under the new ruling from the FCC, this tappability now extends to Internet broadband providers as well.

Practically, what this means is that the government will be asking broadband providers - as well as companies that manufacture devices used for broadband communications – to build insecure backdoors into their networks, imperiling the privacy and security of citizens on the Internet. It also hobbles technical innovation by forcing companies involved in broadband to redesign their products to meet government requirements.

"Expanding CALEA to the Internet is contrary to the statute and is a fundamentally flawed public policy," said Kurt Opsahl, EFF staff attorney. "This misguided tech mandate endangers the privacy of innocent people, stifles innovation, and risks the functionality of the Internet as a forum for free and open expression."

At the same time, the Department of Justice (DOJ) is asking airlines to build similar backdoors into the phone and data networks on airplanes. EFF and the Center for Democracy and Technology (CDT) submitted joint comments to the FCC arguing against the DOJ's unprecedented and sweeping new technology design mandates and anticipatory wiretapping system.

The FCC's new proposal to expand CALEA to airline broadband illustrates the fallacy of law enforcement's rationale for its CALEA request. The DOJ takes the position that broadband has "substantially replaced" the local telephone exchange, but this claim is reduced to the point of absurdity aboard an airplane and opens the door for CALEA to cover just about anything.

Contact:

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

FBI’s "National Security Letters" Threaten Online Speech and Privacy

EFF Urges Appeals Court to Find Secret Subpoena Power Unconstitutional

New York - The Electronic Frontier Foundation, joined by several civil liberties organizations and online service providers, filed a friend-of-the-court brief yesterday in the case of Doe v. Gonzales arguing that National Security Letters (NSLs) are unconstitutional. NSLs are secret subpoenas for communications logs, issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers produce records of where their customers go on the Web, as well as what they read and with whom they exchange email. The FBI can even issue NSLs for information about people who haven't committed any crimes.

A federal district court has already found NSLs unconstitutional, and the government is now appealing the case. In its brief to the Second Circuit Court of Appeals, EFF argues that these secret subpoenas imperil free speech by allowing the FBI to track people's online activities. In addition, NSLs violate the First and Fourth Amendment rights of the service providers who receive the secret government demands. EFF and its cosigners argue that NSLs for Internet logs should be subject to the same strict judicial scrutiny applied to other subpoenas that may reveal information about the identities of anonymous speakers – or their private reading habits and personal associations.

Yet NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.

"The Constitution does not allow the FBI to secretly demand logs about Internet users' Web browsing and email history based on vague claims of national security," said EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. "The district court's decision that National Security Letters are unconstitutional should have been a wake-up call to the House of Representatives, which just voted to renew the PATRIOT Act without adding new checks against abuse."

Although such protections are lacking in the PATRIOT renewal bill that the House of Representatives recently passed, they are included in the Senate bill. It is not yet clear whether those protections will be included in the final bill when it reaches the President's desk.

EFF was joined on the brief by the Center for Constitutional Rights, the Center for Democracy and Technology, the Online Policy Group, Salon Media Group, Inc., Six Apart, Ltd., the US Internet Industry Association, and ZipLip, Inc.

Contacts:

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

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

Internet Critic of Delaware Politician Has Right to Anonymity

Message Board Poster Criticized Smyrna Town Council Member’s Job Performance

NOTE: This is a press release from Public Citizen, which EFF is recirculating for your information.

Washington, DC - A person who posted Internet messages criticizing a Delaware politician's leadership skills has a right to remain anonymous, Public Citizen urged the Supreme Court of Delaware today in a "friend of the court" brief. The American Civil Liberties Union, the Electronic Frontier Foundation and the American Civil Liberties Union of Delaware also joined the friend of the court brief.

The Internet critic, known in court documents as John Doe No. 1, posted two messages on the Smyrna/Clayton Issues Blog (web log) in September 2004. The messages stated that Patrick Cahill, a member of the Smyrna Town Council, had diminished leadership skills, energy and enthusiasm, and referred to Cahill's "character flaws," "mental deterioration," and "failed leadership." John Doe No. 1, known as "Proud Citizen" on the blog, also stated, "Gahill [sic] is…paranoid."

On November 2, Cahill and his wife sued John Doe No. 1 and three other anonymous critics, claiming that John Doe No. 1 had accused Cahill of suffering from "mental defects and diseases," and that the misspelling of his name implied he was "engaging in extramarital, homosexual affairs." Without notice to the critics, the Cahills sought to identify the critics through a subpoena to the Internet access provider, which notified the four critics of the subpoena.

John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure would violate his First Amendment right to criticize a public official anonymously, but the trial court denied the motion. John Doe No. 1 appealed.

Public Citizen, which has been a strong defender of First Amendment rights on the Internet, urged the court to allow John Doe No. 1 to remain anonymous. Blogs provide individuals such as Cahill the opportunity to immediately respond to postings they believe are false or misleading at no cost, argued Paul Alan Levy, a Public Citizen attorney. Further, courts have ruled that subpoenas seeking the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet.

"The blog postings at issue here contained standard criticism of a public official's job performance – not defamatory statements – and it was well within John Doe No. 1's right to make the comments," Levy said. "We urge the court to rule that this Internet critic has a First Amendment right to speak anonymously on the Internet."

Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of Wilmington, Delaware, served as local counsel.

Contact:

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

Secret Documents About Indymedia Server Disappearance Unsealed

Government Order Demanded Only Logs; Web Host Rackspace Handed Over Server

San Antonio, TX - The Electronic Frontier Foundation (EFF) last week won a motion allowing it to access sealed court documents about the mysterious disappearance of two web servers used to host news websites for Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists. After six months of secret litigation, EFF obtained a copy of the federal court order that resulted in the October 2004 handover of copies of Indymedia servers to the government by Indymedia's web host. That handover resulted in the silencing of more than 20 news websites and radio feeds for nearly a week.

However, the unsealed documents reveal that the government never officially demanded the computer servers -- the subpoena to Rackspace only requested server log files. This contradicts previous statements by the web host that it took the servers offline because the government had demanded the hardware. The documents also contradict Rackspace's claim that it had been ordered by the court not to discuss publicly the government's demand. It cannot be determined from the unsealed documents whether or not the government informally pressured Rackspace to turn over the servers. By giving the government more data than it requested, the company not only violated the privacy of Indymedia journalists whose information was housed on the servers, but also undermined the free flow of information by taking Indymedia's websites offline. Moreover, the logs that the government requested didn't exist, so Rackspace should never have given the government anything at all.

"When Rackspace received a government demand to examine logs that didn't exist, it had a responsibility to the customer and to the principles of freedom of the press to fight the order and resolve this without taking more than 20 news sites off the Internet," said Kurt Opsahl, EFF staff attorney.

"Rackspace may claim to provide its customers with 'fanatical support,' but in this case it looks like it was more interested in serving the government," added Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "Despite these new revelations, a key question remains: Did government agents intentionally mislead the web host into thinking it had to hand over complete copies of the Indymedia servers?"

The court order served on San Antonio-based Rackspace Managed Hosting was issued based on a treaty request from the Italian government as part of an ongoing criminal investigation in that country.

EFF was assisted in this case by James A. Hemphill and W. Reid Whittliff with Graves, Dougherty, Hearon & Moody in Austin, Texas.

Read the Commissioner's subpoena here.

Read the order unsealing the documents here.

There are many more unsealed documents here .

Contacts:

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

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