A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 404th Issue of EFFector:

• Sarasota Voters File Lawsuit for Re-vote in Congressional Race
• Barney Surrenders in Copyright Case
• California Supreme Court Rules in Favor of Free Speech on the Internet
• Brief Argues Email Deserves Same Constitutional Protections as Phone Calls, Postal Mail
• Lawsuit Seeks Answers About New International Air Passenger Data Deal
• New DMCA Exemptions Granted
• Movie Studios Sue to Stop Loading of DVDs Onto iPods
• Petition Urges Smithsonian Sunshine
• British RFID Passports Easily Hacked
• The Gifts that Keep on Giving (and Sharing, and Reusing, and Campaigning)
• EFF Seeks Legal Secretary/Assistant
• Nominate a Pioneer for EFF's 2007 Pioneer Awards!
• Nonprofit Software Development Summit in Bay Area this February
• miniLinks (8): Justice Department Watchdog to Probe its Role in Warrantless Surveillance
• Administrivia

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

Make a donation and become an EFF member today! http://eff.org/support/

Tell a friend about EFF: http://action.eff.org/site/Ecard?ecard_id=1061

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

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* Sarasota Voters File Lawsuit for Re-vote in Congressional Race

Local Voters Supported by Election Advocacy Groups Including EFF

Tallahassee, FL - Voters from Sarasota County announced last week that they are filing suit in state court in Tallahassee asking for a re-vote in Florida's 13th congressional district. The suit alleges that thousands of citizens were disenfranchised when massive undervotes plagued the tight congressional race between Democrat Christine Jennings and Republican Vern Buchanan. In a high-profile battle over former Rep. Katherine Harris' seat, the result was decided by 363 votes, yet over 18,000 ballots cast on Sarasota County's e-voting machines registered no vote in the race, an exceptional anomaly in the State.

The lawsuit was filed by a group of Sarasota County voters, both Republican and Democratic. The voters are represented by election advocacy groups, including Voter Action, People For the American Way Foundation, the Electronic Frontier Foundation and the American Civil Liberties Union (ACLU) of Florida.

"Election officials have shown remarkable disregard for the ability of voters to actually cast a ballot," said Ralph Neas, President of People For the American Way Foundation. "Casting a vote is one of our most fundamental rights, and that right was violated for thousands of Sarasota County voters. At this point holding a new election is the only appropriate option." Neas also called for statewide election reform, saying, "Florida can no longer afford to certify election results that no one trusts."

ACLU of Florida Executive Director Howard Simon noted: "For years, Gov. Jeb Bush's administration, including various Secretaries of State, has dismissed reports of problems with electronic voting machines and resisted mandating audits and other methods of ensuring that electronic voting machines are capable of performing a genuine re-count. We even had to go to court to overturn an Administrative Rule issued by the Secretary of State banning recounts in DRE Counties. Now we have mass disenfranchisement and a crisis in voter confidence in the integrity of the elections. It is likely that the faulty machines, not the voters, decided this election."

Voter Action, a national nonpartisan advocacy group focused on election integrity, has been leading legal efforts nationally to address the problems with electronic voting. "The problems in Sarasota are not unique, "said election law attorney Lowell Finley, co-director of the organization. "Across the country we have seen how these systems lose large numbers of votes, switch voters' selections on the screen, cause high undervote rates, add votes or even count votes backwards. Our democracy is too important to continue using unreliable and untrustworthy voting equipment. The people of Sarasota are standing up for their most fundamental right no matter their political affiliation. This is about protecting democracy." The suit is being filed under provisions of Florida law that permit voters to contest an election based on misconduct by election officials or on evidence that legal votes were rejected in sufficient numbers to place in doubt the outcome of the election.

The voters' lawsuit cites misconduct of election officials, including the failure of Sarasota Supervisor of Elections Kathy Dent to adequately investigate, identify or report equipment malfunctions, software malfunctions or ballot layout errors in the ES&S iVotronic touch screen voting machines, even after she received numerous complaints about the machines from voters and poll-workers during the two week period of early voting.

The lawsuit also alleges that the iVotronic voting machines were improperly certified by the Florida Secretary of State in disregard of early warnings concerning the reliability and trustworthiness of e-voting systems made by ES&S systems.

On Monday, the Florida Elections Canvassing Commission certified Vern Buchanan as the winner of the Congressional District 13 race by 363 votes, despite the fact that electronic ballots cast by more than 18,000 people in Sarasota County showed no vote for either candidate in a high profile congressional race. This is an undervote rate of more than 16%, compared to an undervote rate of 2.5% in the paper absentee ballots and 1% in the U.S. Senate race on the same electronic ballot.

At a public hearing hosted last Thursday by PFAWF, ACLU of Florida, Voter Action, Common Cause, and Fair Vote Florida, numerous voters in Sarasota County reported that when the summary screen appeared on the ES&S voting machines they were assigned to use, their vote had not been recorded. Some voters were able to go back and record a vote, but others believe they were never given a meaningful opportunity to cast a vote in that race.

The lawsuit notes that absentee ballots, which are cast on paper instead of the computerized touch screen voting machine, did not reflect a similar lack of votes in the congressional race in Sarasota, and that other counties in the same congressional district -- which used different voting equipment -- did not experience the same massive undercount in the congressional race.

"The voters of the 13th Congressional District deserve to know for sure who they elected," said Electronic Frontier Foundation Staff Attorney Matt Zimmerman. "Voters should not have to take the word of vendors and election officials when serious problems emerge that call into question the accuracy of the results. This suit is designed to help voters find out what really happened."

For more on EFF's e-voting work and a copy of the filing: http://www.eff.org/Activism/E-voting/

For this release: http://www.eff.org/news/archives/2006_11.php#005020

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* Barney Surrenders in Copyright Case

Purple Dinosaur Backs Off and Pays Up; Free Speech Rights Preserved

San Francisco - The corporate owners of the popular children's television character Barney the Purple Dinosaur have agreed to withdraw their baseless legal threats against a website publisher who parodied the character and to compensate him for fees expended in defending himself.

The agreement settles a suit filed by the Electronic Frontier Foundation (EFF) in August on behalf of Dr. Stuart Frankel against Lyons Partnership, owners of the Barney character. Frankel received repeated, meritless cease-and- desist letters from Lyons, claiming his online parody violated copyright and trademark law. EFF's suit asked the court to declare that Frankel's parody was a noninfringing fair use protected by the First Amendment.

"We wish we hadn't had to file a lawsuit to finally get Barney's lawyers to stop harassing a man who was just expressing his opinion about a cultural phenomenon," said EFF Staff Attorney Corynne McSherry. "Hopefully Lyons Partnership has learned its lesson and will have more respect for fair use in the future."

This settlement is the latest development in EFF's ongoing campaign to protect online free speech from the chilling effects of bogus copyright claims. Earlier this month, EFF filed suit against Michael Crook -- a man who claimed copyright infringement in an effort to censor his online critics.

"Those who misuse copyright should know that they can be sued for doing so," said McSherry. "This settlement should send a message to those who want to use copyright law as a pretext for censorship."

EFF was assisted in this case by Elizabeth Rader, James d'Auguste, and Brian Carney, attorneys with the firm of Akin, Gump, Strauss, Hauer & Feld LLP, which is defending Dr. Frankel's free speech rights on a pro bono basis.

For the original complaint: http://www.eff.org/legal/cases/barney/frankel_v_lyons_complaint.pdf

For more on Barney's copyright abuses: http://www.eff.org/legal/cases/barney/

For this release: http://www.eff.org/news/archives/2006_11.php#005024

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* California Supreme Court Rules in Favor of Free Speech on the Internet

San Francisco - In a victory for free speech on the Internet, the California Supreme Court ruled last week that no provider or user of an interactive computer service may be held liable for putting material on the Internet that was written by someone else. In doing so, the Court overruled an earlier decision by the Court of Appeal.

This ruling affirms that blogs, websites, listservs, and ISPs like Yahoo!, as well as individuals like defendant Ilena Rosenthal, are protected under Section 230 of the federal Communications Decency Act (CDA), which explicitly states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

"By reaffirming that Congress intended to grant protection under Section 230 to those who provide a forum for the views of others, the Court has ensured that the Internet will remain a vibrant forum for debate and the free exchange of ideas," said Ann Brick, staff attorney at the ACLU of Northern California. "Any other ruling would have inevitably made speech on the Internet less free."

The issue raised in Barrett v. Rosenthal was whether Section 230's protection applies to individuals who frequently use the Internet to pass on information obtained elsewhere, whether by forwarding an email written by someone else or, as was the case in Barrett, posting an email from someone else to a newsgroup. The ACLU-NC and the Electronic Frontier Foundation (EFF) filed an amicus brief in the California Supreme Court arguing that Section 230 means what it says and applies to "users" of interactive computer services as well as "providers."

"Courts have consistently interpreted Section 230 to provide broad protections for the platforms upon which free speech has flourished online," said EFF Staff Attorney Kurt Opsahl. "By reversing the Court of Appeal, the California Supreme Court has brought California back in line with other jurisdictions and reaffirmed the critical rule that the soapbox is not liable for what the speaker has said."

In January 2004, in Barrett v. Rosenthal, the Court of Appeal for the First District overruled the dismissal of a defamation lawsuit filed against an activist for her re- publication on the Internet of someone else's words. The court refused to extend any protection under Section 230, which was expressly enacted "to promote the continued development of the Internet and other interactive computer services" in a manner "unfettered by Federal or State regulation."

"The Supreme Court's opinion strengthens protection for speech on the Internet" said Mark Goldowitz, director of the California Anti-SLAPP Project and counsel for Rosenthal. "Justice Corrigan's opinion protects against the 'heckler's veto' chilling speech on the Internet."

For the full decision, see EFF's website at: http://www.eff.org/legal/cases/Barrett_v_Rosenthal/ruling.p df

For this release: http://www.eff.org/news/archives/2006_11.php#005017

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* Brief Argues Email Deserves Same Constitutional Protections as Phone Calls, Postal Mail

EFF Fights to Shield Email from Secret Government Searches

San Francisco - The government must have a search warrant before it can search and seize emails stored by email service providers, according to a friend-of-the-court brief filed last week by the Electronic Frontier Foundation (EFF) and a coalition of civil liberty groups. EFF filed the brief in support of a landmark district court decision finding that the federal Stored Communications Act (SCA) violates the Fourth Amendment by allowing secret, warrantless searches and seizures of email stored with a third party.

EFF's amicus brief was filed in Warshak vs. United States, a case brought in the Southern District of Ohio federal court by Steven Warshak to stop the government's repeated secret searches and seizures of his stored email using the SCA. The district court ruled that the government cannot use the SCA to obtain stored email without a warrant or prior notice to the email account holder. The government, which has routinely used the SCA over the past 20 years to secretly obtain stored email without a warrant, appealed the decision to the 6th U.S. Circuit Court of Appeals. That court is now primed to be the first circuit court ever to decide whether email users have a "reasonable expectation of privacy" in their stored email.

"Email users clearly expect that their inboxes are private, but the government argues the Fourth Amendment doesn't protect emails at all when they are stored with an ISP or a webmail provider like Hotmail or Gmail," said EFF Staff Attorney Kevin Bankston. "EFF disagrees. We think that the Fourth Amendment applies online just as strongly as it does offline, and that your email should be as safe against government intrusion as your phone calls, postal mail, or the private papers you keep in your home."

The EFF brief was also signed by the American Civil Liberties Union, the ACLU of Ohio, and the Center for Democracy and Technology.

For the full amicus brief: http://eff.org/legal/cases/warshack_v_usa/warshack_amicus.pdf

For this release: http://www.eff.org/news/archives/2006_11.php#005022

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* Lawsuit Seeks Answers About New International Air Passenger Data Deal

Department of Homeland Security Dodges Records' Disclosure

Washington DC - The FLAG Project at the Electronic Frontier Foundation (EFF) filed suit against the Department of Homeland Security (DHS) last week, demanding information about a new agreement on the handling of air passenger data from flights between the European Union (EU) and the United States.

Two years ago, the U.S. and EU made a controversial deal requiring airlines to give DHS access to detailed passenger information from EU flights to and from the U.S. In May, the European Court of Justice struck down the agreement, finding it at odds with EU law. But the U.S. and EU reached a new agreement last month that will give U.S. law enforcement and intelligence agencies greater access to the data than the previous deal did. EFF filed its suit after DHS failed to respond to a Freedom of Information Act (FOIA) request for records about the handling of data under the new agreement, including how they are maintained, used, disclosed, and secured.

"Travelers may give up a lot of personal information when they make flight reservations," said EFF Staff Attorney Marcia Hofmann. "Those traveling between Europe and the United States deserve to know who gets to see that data, how the information is protected, and whether those practices comply with EU law."

EFF's FLAG Project uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy. Previous lawsuits have demanded information about the FBI's huge database of personal information, as well as records on the FBI's electronic surveillance systems.

"When federal agencies don't comply with the FOIA's requirements, they may conceal activities and programs that raise serious legal issues and put Americans' privacy at risk," said Hofmann. "The Department of Homeland Security must abide by the law and give the public information about the new passenger data agreement."

For the FOIA complaint filed against the Department of Homeland Security: http://www.eff.org/flag/dhs/dhs_complaint.pdf?

For more on the FLAG Project: http://www.eff.org/flag

For this release: http://www.eff.org/news/archives/2006_11.php#005018

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* New DMCA Exemptions Granted

The Copyright Office/Library of Congress today issued its determination in the latest triennial Digital Millennium Copyright Act (DMCA) exemption rule-making. Six exemptions were granted, the largest number so far.

Unfortunately, just as we predicted, all the proposed exemptions that would benefit consumers were denied (space- shifting, region coding, backing up DVDs). So, while we're pleased that film professors, archivists, cellphone recyclers, and security researchers were able to successfully navigate the exemption process, it appears that digital consumers still have no choice but to get Congress to amend the DMCA. We look forward to Rep. Rick Boucher reintroducing his DMCA reform bill in the new Congress next year.

For more details and related links: http://www.eff.org/deeplinks/archives/005021.php

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* Movie Studios Sue to Stop Loading of DVDs Onto iPods

The Motion Picture Association of America (MPAA) studios are at it again, snatching away our fair use rights so they can sell them back to us for an additional fee.

In a lawsuit filed in federal court in New York, Paramount Pictures v. Load 'N Go Video, the MPAA member companies have sued a small business for loading DVDs onto personal media players (e.g., iPod Video) on behalf of customers.

Although this lawsuit happens to be aimed at Load 'N Go, the DMCA theory in the complaint makes it crystal clear that the MPAA believes it is just as illegal for you to do the same thing for yourself at home. Apparently, Hollywood believes that you should have to re-purchase all your DVD movies a second time if you want to watch them on your iPod.

This lawsuit is just the latest example of the entertainment industry taking aim not at "pirates," but rather at the legitimate fair use rights of music and movie fans. For more information on the suit and related links: http://www.eff.org/deeplinks/archives/005010.php

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* Petition Urges Smithsonian Sunshine

Back in April 2006, it came to light that the Smithsonian Institution had signed an exclusive 30-year deal with Showtime Networks, Inc. to create a new cable channel. The catch? It effectively would give Showtime exclusive access to the Smithsonian collections for certain uses. This represents a serious threat to the public domain materials contained in the priceless Smithsonian collections.

Now the Smithsonian is urging the Congressional committees that oversee it to simply forget about the controversy. Apparently, Smithsonian representatives are telling Congress that the Showtime contract "has to date created no problems" and "there is no further opposition." This is particularly outrageous in light of the fact that the General Accounting Office is currently finalizing a report about the Showtime deal. Until the report comes out, it is premature to let the Smithsonian off the hook.

Fortunately, Carl Malamud of the Center for American Progress assembled an open letter to the relevant members of Congress. To read the petition: http://public.resource.org/smithsonian_congress.html

For this post and related links: http://www.eff.org/deeplinks/archives/004994.php

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* British RFID Passports Easily Hacked

New passports issued in the UK contain Radio Frequency Identification (RFID) chips, supposedly for purposes of increased security. But a report in the British newspaper The Guardian found the passports surprisingly easy to read and copy. Using a device purchased for Boducts and services that aid your freedom to tinker, share, improve and learn seriously. Some of the goods offered are more aspirational than practical holiday gifts: you'll be hard put to track down the OpenMako unrestricted GSM phone, or Chumby, a prototype hackable alarm clock, in time for Christmas. But popular open products from Neuros, Magnatune's DRM-free FLAC audio, the open source MediaPortal Windows media center, and Rockbox, the free firmware replacement for most MP3 players, show just how vibrant a market can be when it casts off DRM shackles and sets about re-asserting user control. And then there's Make's highly sensible suggestion of a $100 donation to the EFF -- the perfect gift for those few friends of yours who aren't already members.

For the gift guide: http://www.makezine.com/blog/archive/2006/11/the_open_source_1.html

To support EFF: http://www.eff.org/support

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* EFF Seeks Legal Secretary/Assistant

Done your time in the big law firm and looking for a change? EFF is looking for a legal secretary/legal assistant to join our team and support our attorneys in San Francisco.

Requirements: three or more years as a litigation secretary, expert abilities with Word (especially styles and generating tables), experience with legal filings, formatting, proofs of service, etc., ease with e-mail, Adobe Acrobat and the web, ability to work on Mac and PC. Our ideal candidate is a self-starter with strong organizational skills, capable of handling numerous and varied tasks simultaneously.

Duties include: * Drafting correspondence * Preparing and filing of paper and electronic documents in courts across the country * Administration of law student internship program * Formatting and word processing for policy papers and pleadings * Maintaining our calendar and conflicts list * Assistance with travel arrangements * Updating legal reference materials

Please send your resume and a short writing sample, such as a business letter or short pleading, to legalsecretary@eff.org.

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* Nominate a Pioneer for EFF's 2007 Pioneer Awards!

EFF established the Pioneer Awards to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology. This is your opportunity to nominate a deserving individual or group to receive a Pioneer Award for 2007.

The International Pioneer Awards nominations are open both to individuals and organizations from any country. Nominations are reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.

How to Nominate Someone for a 2007 Pioneer Award:

You may send as many nominations as you wish, but please use one email per nomination. Please submit your entries via email to pioneer@eff.org. We will accept nominations until January 15, 2007.

Simply tell us:

1. The name of the nominee,

2. The phone number or email address or website by which the nominee can be reached, and, most importantly,

3. Why you feel the nominee deserves the award.

Nominee Criteria:

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

1. The nominees must have contributed substantially to the health, growth, accessibility, or freedom of computer-based communications.

2. To be valid, all nominations must contain your reason, however brief, for nominating the individual or organization and a means of contacting the nominee. In addition, while anonymous nominations will be accepted, ideally we'd like to contact the nominating parties in case we need further information.

3. The contribution may be technical, social, economic, or cultural.

4. Nominations may be of individuals, systems, or organizations in the private or public sectors.

5. Nominations are open to all (other than current members of EFF's staff and board or this year's award judges), and you may nominate more than one recipient. You may also nominate yourself or your organization.

6. Persons or representatives of organizations receiving an EFF Pioneer Award will be invited to attend the ceremony at EFF's expense.

More on the EFF Pioneer Awards: http://www.eff.org/awards/pioneer/

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* Nonprofit Software Development Summit in Bay Area This February

Are you involved in developing software for nonprofit and non-governmental organizations? Want to be? A new Non-Profit Software Development Summit will be held February 21-23, 2007, in Oakland, California. Learn more about the event here: http://aspirationtech.org/events/devsummit

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* miniLinks The week's noteworthy news, compressed.

~ Justice Department Watchdog to Probe its Role in Warrantless Surveillance "After conducting initial inquiries into the program, we have decided to open a program review that will examine the department's controls and use of information related to the program." http://www.cbsnews.com/stories/2006/11/27/politics/main2210357.shtml

~ Browser Caches Aren't Possession, Says Ninth Circuit If you don't know an image is there, you can't possess it. http://www.dashlog.com/logs/tinker/?cid=5474

~ UK Advised to Reject Copyright Extension Much to the annoyance of its entrenched music industry. http://www.openrightsgroup.org/press-releases/gowers-leak-copyright-term...

~ Second Life, Copybot, and the Takedown Gun Ed Felten proposes a unique solution to copying problems in the virtual world: a gun that shoots law, not bullets. http://www.freedom-to-tinker.com/?p=1091

~ Europe's Privacy Czars Rule Against SWIFT The Belgian financial clearinghouse should not have responded to US requests to hand over financial data. http://www.privacyinternational.org/article.shtml?cmd[347]=x-347-546365

~ Will Executive Hubris Lead to Problems for DoJ in Court? VP Cheney makes remarkably broad arguments to Federalist Society about wartime powers. http://www.thecarpetbaggerreport.com/archives/9101.html#more-9101

~ Copyright Levies Changing Across World Europe is rethinking the idea of blanket levies on media. http://www.iht.com/articles/2006/11/22/business/ptend23.php

~ Newsweek on the Anti-DRM Movement "In six years of tracking piracy, we've never seen a statistical difference in piracy of a popular song that was released without DRM and a popular song that was released with DRM," says Eric Garland, CEO of the market research firm BigChampagne. http://www.msnbc.msn.com/id/15818852/site/newsweek/

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation 454 Shotwell Street San Francisco CA 94110-1914 USA +1 415 436 9333 (voice) +1 415 436 9993 (fax) http://www.eff.org/

Editor: Derek Slater, Activist derek@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.

Current and back issues of EFFector are available via the Web at: http://www.eff.org/effector/

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