EFFector Vol. 21, No. 14  April 23, 2008  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 467th Issue of EFFector:
 * EFF Report: FBI Slowed Terror Investigation with
Improper NSL Request
 * FBI General Counsel Questioned on EFF NSL Report
 * FCC Hearings at Stanford: Towards a Consensus on ISP
Transparency?
 * Mukasey's Missed Call
 * FISA News and Updates
 * European Parliament to Sarkozy: No "Three Strikes" Here
 * Liberate the B-24 Liberator!
 * UMG Says Throwing Away Promo CDs Is Illegal
 * Visit the EFF Booth at the O'Reilly Web 2.0 Expo in San
Francisco!
 * Check out EFF at Maker Faire Bay Area in May 2008!
 * Come Hear EFF Speakers at the SanFran MusicTech Summit
on May 8!
 * miniLinks (11): Feds to Collect DNA from Every Person
They Arrest
 * Administrivia

For more information on EFF activities & alerts:
 http://www.eff.org/

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effector: n, Computer Sci. A device for producing a desired
change.

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* EFF Report: FBI Slowed Terror Investigation with Improper
NSL Request

Improper NSL Issued Upon the 'Advice and Direction of
FBIHQ'

San Francisco - The Electronic Frontier Foundation (EFF)
has found that the Federal Bureau of Investigation (FBI),
which claims that National Security Letters (NSLs) take too
long and that it needs the authority to conduct
surveillance without judicial oversight, delayed its own
investigation of a student suspected of links to terrorism
by employing an improper NSL to seek information on the
suspect, at the direction of FBI Headquarters. The FBI
failed to report the misuse for almost two years.

"This report raises important questions about the FBI's use
of these very powerful investigative tools," said EFF
Senior Staff Attorney Kurt Opsahl. "Congress should
determine why FBI headquarters insisted on an improper NSL
instead of using the appropriate tools, and why the FBI
failed to report the misuse for almost two years."

In the report, EFF used documents obtained through a
Freedom of Information Act (FOIA) request coupled with
public information to detail the bizarre turns in the FBI's
investigation of a former North Carolina State University
student. Over the span of three days in July of 2005, FBI
documents show that the bureau first obtained the
educational records of the suspect with a grand jury
subpoena. However, at the direction of FBI headquarters,
agents returned the records and then requested them again
through an improper NSL.

As expanded by the PATRIOT Act, the FBI can use NSLs to get
private records about anyone's domestic phone calls,
e-mails and financial transactions without any court
approval -- as long as it claims the information could be
relevant to a terrorism or espionage investigation.
However, NSL authority does not allow the government to
seek educational records, and the university refused the
request. The FBI finally obtained the documents again
through a second grand jury subpoena. Later in July of
2005, FBI Director Robert Mueller used the delay in
gathering the records as an example of why the FBI needed
administrative subpoena power instead of NSLs so
investigations could move faster.

"The FBI consistently asks for more power and less outside
supervision," said Opsahl. "Yet here the NSL power was
misused at the direction of FBI headquarters, and only
after review by FBI lawyers. Oversight and legislative
reforms are necessary to ensure that these powerful tools
are not abused."

Report on the Improper Use of an NSL to NC State
University:
http://www.eff.org/issues/foia/report-nsl-ncstate

Key FBI documents:
http://www.eff.org/files/filenode/07656JDB/charlotte.pdf

For more on National Security Letters:
http://www.eff.org/issues/foia/07656JDB

For this release:
http://www.eff.org/press/archives/2008/04/14

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* FBI General Counsel Questioned on EFF NSL Report

At a hearing of the House Judiciary Committee last week,
FBI General Counsel Valerie Caproni faced tough questions
about the EFF report on the abuse of a National Security
Letter (NSL) to North Carolina State University at Raleigh.

In her testimony, Caproni speculated that this misuse of
the NSL might have been the result of a "miscommunication."
However, according to a 2007 report by Caproni's Office of
the General Counsel, the FBI Charlotte Division "acted upon
the advice and direction of FBIHQ [and] Charlotte personnel
sought legal advice prior to the service of the NSL." FBI
documents show that the NSL at issue was reviewed by the
Senior Supervisory Special Agent for the Raleigh office,
and then reviewed by the Special Agent in Charge of the
Atlanta Division before being signed.

Other documents suggest extensive review and communication
over the issue.

For the video recording of Rep. Nadler questioning FBI
General Counsel Caproni about NSLs:
http://www.youtube.com/watch?v=dtrN2yQPzMA

For this complete post by EFF Senior Staff Attorney Kurt
Opsahl:
http://www.eff.org/deeplinks/2008/04/fbi-general-counsel-questioned-eff-nsl-report

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* FCC Hearings at Stanford: Towards a Consensus on ISP
Transparency?

Last week, the FCC held a second hearing in its
investigation of Comcast's use of forged RST packets to
interfere with BitTorrent and other P2P applications. At
the previous hearing at Harvard Law School, Comcast
attracted criticism for filling the auditorium with paid
attendees. This time around, the telcos declined to
participate at all. They sent proxies in their place: a
conservative think tank called the Phoenix Center,
freelance tech pundit George Ou, and one ISP: Lariat.net of
Wyoming. It's a pity that ISPs aren't willing to
participate in public debate about their own practices.

EFF has argued that the FCC should use its position of
leadership to clarify that ISPs should provide adequate
disclosure of any discriminatory network management
practices that they deploy. This kind of transparency is
essential for a properly functioning marketplace: the
public must be able to know when their software doesn't
work because it's buggy, and when it doesn't work because
of interference by an ISP. Transparency and responsiveness
are also essential for application developers to understand
the way that their applications will have to fit into ISPs'
networks.

We were very pleased to see that requirements for
disclosure and transparency seemed to command a
near-consensus among the Commissioners and those
testifying. The devil will be in the details, of course:
will disclosures be informative enough for programmers to
work with and for consumers to make good decisions?

We doubt that RST forgery will be the last "network
management" practice to spark consternation and
controversy. But we hope that in future, it won't take the
best part of a year of wrangling and an FCC proceeding
before transparency and common sense start to prevail.

For this complete post by EFF Staff Technologist Peter
Eckersley:
http://www.eff.org/deeplinks/2008/04/fcc-hearings-stanford-consensus-isp-transparency

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* Mukasey's Missed Call

Senator Leahy asked Attorney General Mukasey some tough
questions recently about a mysterious phone call that
Mukasey referenced while speaking at the Commonwealth Club
in San Francisco a few weeks ago.

After a vague, surveillance-related anecdote about a phone
call made from Afghanistan, Mukasey became very emotional,
and claimed the attacks of 9/11 were a direct result of
this intelligence failure. In other words, the Attorney
General seemed to say that the attacks on 9/11 could have
been prevented -- if only our intelligence agencies had not
been restricted by what he saw as unfair and unreasonable
civil liberties protections. This is a gross distortion of
the facts and the law, as the nation's top lawyer well
knows.

For legal analysis of the wiretap authority related to
Mukasey's call:
http://www.eff.org/deeplinks/2008/04/mukaseys-missed-call

Meanwhile, the San Francisco Chronicle has been reporting
on lawmakers' efforts to find out more about Mukasey's
story. Chronicle reporter Bob Egelko has shown in his
ongoing investigation that Mukasey's story is difficult for
many experts to understand. Some members in Congress are
speculating that the phone call may have already been
investigated -- and found to have been actually
intercepted, but simply not passed on to other intelligence
agencies.

We're pleased that both reporters and lawmakers are taking
a hard look at Mukasey's story. Congress has some tough
decisions to make about surveillance law in the coming
months, and Americans should not lose their civil liberties
to make up for the government's own failures.

For this post, with links to the San Francisco Chronicle's
coverage:
http://www.eff.org/deeplinks/2008/04/more-questions-swirl-around-mukaseys-emotional-ple

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* FISA News and Updates

FISA has been missing from the front pages of the nation's
newspapers for a while, but behind the scenes and on the
editorial pages, the story is still very much alive. The
Hill recently reported that Congressional Republicans are
changing focus away from FISA and towards economic issues.

Supporters of immunity for telecoms may have simply
realized that there are more pressing issues for the
country to address than protecting the President's
warrantless wiretapping program from judicial scrutiny. Or
was all the chest pounding of weeks past, the dire claims
of impending disaster, just empty manipulative rhetoric?
Either way, it appears that the old fail-safe tactics of
scaring the public into supporting expanded executive
powers are no longer as reliable as they once were --
although it wouldn't be surprising if the rhetoric ramps up
again this summer, about a year after the Protect America
Act was passed.

Meanwhile, the unpopularity of letting telecoms off the
hook for their role in the President's illegal spying
program couldn't be more apparent. The editorial and
opinion pages of local newspapers continue to reflect a
widespread distaste for the idea of offering immunity to
telecoms -- and not just in the "blue" states.

For the complete roundup of FISA news around the country:
http://www.eff.org/deeplinks/2008/04/fisa-news-roundup

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* European Parliament to Sarkozy: No "Three Strikes" Here

Despite last minute attempts by the French government to
divide them, European MEPs recently voted decisively
against "three strikes," the IFPI-promoted plan to create a
class of digital outcasts, forbidden from accessing the Net
if repeatedly accused by music companies of downloading
infringing content.

EFF collaborated with activists across Europe to
co-ordinate support for Internet users' rights and wrote to
all MEPs to point out the real dangers of graduated
response and to urge a vote for both parts. French Net
activists, including the new Squaring the Net initiative,
contacted their MEPs en masse to oppose the French
Government's recommendation.

Both parts of the amendment passed.

The entertainment industry originally intended the Bono
Report on the Cultural Industries to be a stalking horse
for their new approach, encouraging MEPs to insert language
that would show support for copyright extension, ban Net
users, and censor the Net in the interests of
rightsholders.

Instead, it has turned into a watershed -- a clear
rejection of the strategy of forcing the telecommunications
industry to act as a private police force for the
entertainment lobby, a positive endorsement of the Net's
free flow of information, and a positive agenda for
copyright reform. It seems the music industry will remain
the only group to believe that spying, filtering and
punishing your own customers is a good idea, either for
business or for society as a whole.

For this complete post by EFF International Outreach
Coordinator Danny O'Brien:
http://www.eff.org/deeplinks/2008/04/european-parliament-sarkozy-no-three-strikes-here

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* Liberate the B-24 Liberator!

Who owns the B-24, the bomber that helped win World War II?
U.S. taxpayers paid for it, Consolidated Aircraft built it,
U.S. military pilots flew it, but Lockheed Martin says it
owns the bomber -- or at least it owns the name.

Some may already be familiar with the case of John
MacNeill, the respected graphic artist and illustrator who
had several digital images of classic military aircraft
removed from TurboSquid, a stock images site, after
Lockheed Martin claimed the images infringed its
trademarks. The central mark at issue? The term "B-24,"
which Lockheed managed to register as a mark for use in
connection with scale models of airplanes. That's right,
Lockheed Martin claims the right to control use of the term
"B-24" in connection with models of, um, B-24s.

It is perplexing that this mark was granted in the first
place, given that the term "B-24" is nothing more than a
U.S. military model number used to describe the plane
itself. MacNeill's situation is a perfect example of why we
need that rule. If Lockheed had its way, no one could
create 3-D images (or anything else that could be construed
as a "model") of famous military aircraft -- from the B-24
to the F-117 Nighthawk, also known as the Stealth fighter.

Trademark owners -- and the service providers they try to
intimidate -- need to learn that a trademark registration
doesn't give you a right to control everyday use of regular
descriptive terms. Hoping to provide a little of that
necessary education, we've sent an open letter to
Lockheed's licensing agency, demanding that they withdraw
their improper objections so that Mr. MacNeill can go about
his perfectly legitimate business.

For the open letter from EFF to Lockheed Martin's licensing
agency:
http://www.eff.org/files/filenode/MacNeillLetter%20040908.pdf

For this complete post by EFF Staff Attorney Corynne
McSherry:
http://www.eff.org/deeplinks/2008/04/liberate-b-24-liberator

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* UMG Says Throwing Away Promo CDs Is Illegal

In a brief filed in federal court, Universal Music Group
(UMG) states that, when it comes to the millions of
promotional CDs ("promo CDs") that it has sent out to music
reviewers, radio stations, DJs, and other music industry
insiders, throwing them away is "an unauthorized
distribution" that violates copyright law. Yes, you read
that right -- if you've ever received a promo CD from UMG,
and you don't still have it, UMG thinks you're a pirate.

This revelation came in a brief for summary judgment filed
by UMG against Troy Augusto. Augusto buys collectible promo
CDs at used record stores around Los Angeles and resells
them on eBay. UMG sued him last year, claiming that the
"promotional use only" labels on the CDs mean that UMG owns
them forever and that any resale infringes copyright. EFF
took Augusto's case to fight for the proposition that a
copyright owner can't take away a consumer's first sale
rights just by putting a label on a CD. In other words, EFF
believes that if you bought it, or if someone gave it to
you, you own it.

For EFF's legal perspective on the issue of "promo CDs" in
UMG v. Augusto:
http://www.eff.org/files/filenode/umg_v_augusto/AugustoMSJBrief.pdf

For this complete post by EFF Senior Staff Attorney Fred
Von Lohmann:
http://www.eff.org/deeplinks/2008/04/umg-says-throwing-away-promo-cds-illegal

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* Visit the EFF Booth at the O'Reilly Web 2.0 Expo in San
Francisco!

The Web 2.0 Expo takes place April 22 to 25 at the Moscone
Center in San Francisco, and EFF will be there! The Web 2.0
Expo "takes the pulse of the Web ecosystem and looks to its
future, training a spotlight across the Web 2.0 universe to
illuminate how the Internet Revolution is being created and
delivered." The sessions focus on vital issues facing web
innovators and entrepreneurs today: development, user
experience, open platforms, financing, and more.

Stop by the booth between sessions to chat and support EFF!

For more about the Web 2.0 Expo in San Francisco:
http://en.oreilly.com/webexsf2008/public/content/home

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* Check out EFF at Maker Faire Bay Area in May 2008!

Last year, EFF had a blast hanging out at Maker Faire, a
DIY-centric festival put together by Make Magazine and
Craft Magazine. We liked it so much that we're returning
for this year's event at the San Mateo Fairgrounds on May 3
and 4! Come to the fairgrounds to experience the endless
creativity exhibited by the do-it-yourselfers, then check
in with EFF to learn more about our latest work and pick up
some great EFF swag!

For more about Maker Faire:
http://makerfaire.com/

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* Come Hear EFF Speakers at the SanFran MusicTech Summit on
May 8!

The SanFran MusicTech Summit brings together the leading
developers in the music and technology space, along with
musicians, entrepreneurs, members of the press, investors,
service providers, and the organizations who work with them
at the convergence of culture and commerce. Joining other
digital thought leaders will be EFF Senior Staff Attorney
Fred Von Lohmann on a panel discussing "Copyright Issues in
Music Law," as well as EFF Advisory Board member Jim
Griffin.

The Summit takes place on Thursday, May 8, at San
Francisco's Hotel Kabuki.
If you register with the code "eff", you'll receive 10%
off!

For more about the SanFran MusicTech Summit:
http://www.sanfranmusictech.com

For the SanFran MusicTech Summit registration page:
http://sanfranmusictech.inticketing.com/evinfo.php?eventid=23706

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* miniLinks
The week's noteworthy news, compressed.

~ Feds to Collect DNA from Every Person They Arrest
Anyone arrested by the feds would have their DNA included
in a massive database.
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/04/16/national/w135304D42.DTL

~ Chertoff Says Fingerprints Aren't 'Personal Data'
Homeland Security Secretary Michael Chertoff told the
Canadian press that fingerprints should not be considered
private.
http://thinkprogress.org/2008/04/16/chertoff-fingerprints/

~ Domestic Satellite Surveillance Coming Soon
The Department of Homeland Security is set to begin using a
new domestic spy program using advanced satellite
technology.
http://www.washingtonpost.com/wp-dyn/content/article/2008/04/11/AR2008041103655_pf.html

~ Warning on Storage of Health Records
Two leading researchers warn that plans for electronic
health records from Google and Microsoft pose a threat to
online privacy.
http://www.nytimes.com/2008/04/17/business/17record.html
(log-in may be required)

~ Alaska Joins Real ID Refuseniks
The state legislature passed legislation rejecting the
federal Real ID Act.
http://www.sitnews.us/0408news/041208/041208_realid.html

~ Access Denied: Report on Internet Censorship Around the
World
A new study looks at Internet filtering practices in dozens
of countries around the world.
http://www.boingboing.net/2008/04/17/access-denied-report.html

~ Pirate Bay Launches Uncensored Blogger Service
The new service promises to provide a platform for free
speech and unpopular ideas.
http://torrentfreak.com/baywords-pirate-bay-blog-080416/

~ Microsoft Proposes New Ad Privacy Structure
The software giant has put forward five self regulatory
principals to guide privacy policy for third party
advertising.
http://www.out-law.com//default.aspx?page=9046

~ Newspapers Argue for First Amendment Right to Snoop on
Readers
A newspaper group claims attempts to limit behavioral
targeting violate First Amendment principals.
http://bits.blogs.nytimes.com/2008/04/14/newspapers-argue-for-first-amendment-right-to-snoop-on-readers/index.html
(log-in to facilitate snooping may be required)

~ RIAA vs. Homeless Man
The latest victim of an RIAA lawsuit is a man who lives in
a homeless shelter.
http://recordingindustryvspeople.blogspot.com/2008/04/riaa-sues-homeless-man-makes-sewer.html

~ Six Misconceptions About Orphaned Works
A blogger dissects the debates and exposes myths about
Orphan Works legislation.
http://maradydd.livejournal.com/374886.html

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
 http://www.eff.org/

Editor:
Richard Esguerra, EFF Activist
 richard@eff.org

Membership & donation queries:
 membership@eff.org

General EFF, legal, policy, or online resources queries:
 information@eff.org

Reproduction of this publication in electronic media is
encouraged. Signed articles do not necessarily represent
the views of EFF. To reproduce signed articles
individually, please contact the authors for their express
permission.
Press releases and EFF announcements & articles may be
reproduced individually at will.