EFFector Vol. 21, No. 07 February 28, 2008 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 460th Issue of EFFector: * EFF, ACLU Move to Intervene in Wikileaks Case * EFF Lawsuit Demands Records of Contacts Between Former Justice Department Official and Google * Embedded Video and Your Privacy * FISA News and Updates * Google Gets Healthy * RIAA File-Sharing Complaint Fails to Support Default Judgment * CopyrightHistory.org: Copyright Before 1900 * Adobe Pushes DRM for Flash * See EFF at the O'Reilly Emerging Technology Conference and Join us for the Pioneer Awards on March 4! * EFF at Plutopia! SXSW Interactive Gathering of Tribes * miniLinks (7): Scare Tactics on President's Spying Powers * 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. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EFF, ACLU Move to Intervene in Wikileaks Case Domain Name Shutdown Harms First Amendment Right to Access Information San Francisco - The Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and the American Civil Liberties Union Foundation of Northern California (ACLU-Northern California) Tuesday filed a motion to intervene in a lawsuit where a federal judge ordered the disabling of one of the domain names associated with "Wikileaks," a website designed to give whistleblowers a forum for posting materials of public concern. In early February, Swiss bank Julius Baer filed suit in federal district court against Wikileaks for hosting 14 allegedly leaked documents regarding personal banking transactions of Julius Baer customers. Also sued was Wikileaks' domain name registrar, Dynadot LLC. On February 15, following a stipulation between Julius Baer and Dynadot, the court issued a permanent injunction, disabling the wikileaks.org domain name and preventing that domain name from being transferred to any other registrar. "Dynadot's private agreement to disable access to its customer's domain name -- and the court's endorsement of that agreement -- raise serious First Amendment concerns," said EFF Senior Staff Attorney Matt Zimmerman. "This unwarranted injunction should remind everyone who hosts critical information on the Web that such information may only remain accessible as long as your service provider or registrar is willing to stand up for you against obviously overreaching legal attacks." Wikileaks permits third parties to post corporate and government documents that they believe expose wrongdoing. For example, in the past year individuals have posted materials documenting alleged human rights abuses in China and political corruption in Kenya. The court's order effectively prevents readers who are only familiar with Wikileaks through the wikileaks.org domain name from accessing any material on the site. "Julius Baer's private dispute regarding a former employee's alleged violation of a confidentiality agreement does not warrant this attempt to block access to all material hosted on Wikileaks," said Zimmerman. "The First Amendment rights of readers who have a legitimate interest in the materials posted on the website simply cannot be treated as acceptable collateral damage to the bank's claims." In the papers filed Tuesday, the intervenors -- including EFF, the ACLU, the Project on Government Oversight (POGO), and Wikileaks user Jordan McCorkle -- asked the court for permission to intervene in order to dissolve the injunction disabling the wikileaks.org domain name. The papers were filed in consultation with and on behalf of the intervenors by Steven Mayer of the law firm of Howard Rice Nemerovski Canady Falk & Rabkin. Other attorneys on the case include Christopher Kao and Shaudy Danaye-Elmi of Howard Rice; Zimmerman, Cindy Cohn, and Kurt Opsahl of EFF; and Aden Fine and Ann Brick of the ACLU and ACLU-Northern California, respectively. At 9:00 a.m. on Friday, February 29, a federal judge in San Francisco will hear arguments regarding a related issue: whether to extend a temporary restraining order aimed at preventing the further distribution of the 14 disputed Julius Baer documents. A hearing to address Tuesday's motion to intervene and subsequent motion to dissolve the domain name permanent injunction has not yet been scheduled. Attention EFF members: If you use wikileaks.org, please send us your stories. We'd like to gather a few more to tell to the court if that's needed in the court case. You don't need to be identified (that's your choice), but you need to be an EFF member. We're especially interested in stories from folks who have used wikileaks.org for something unrelated to the Julius Baer bank documents. Email to: wikileaks-stories@eff.org For the full motion to intervene: http://www.eff.org/files/filenode/motiontointervene.pdf For this release: http://www.eff.org/press/archives/2008/02/26-0 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : EFF Lawsuit Demands Records of Contacts Between Former Justice Department Official and Google DOJ's Top Privacy Lawyer Left Government Post for Job with Online Giant Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit against the Department of Justice (DOJ) this week, demanding information about communications between the DOJ's former top privacy official and Google, the official's current employer. Jane C. Horvath was named the DOJ's first Chief Privacy and Civil Liberties Officer in February of 2006. At that time, Google was fighting a massive DOJ subpoena asking for the text of every query entered into the search engine over a one-week period. The DOJ request -- part of a court battle over the constitutionality of a law regulating adult materials on the Internet -- ignited a national debate about Internet privacy. The DOJ later scaled back its request, and a judge eventually allowed access to only 5000 random Google search queries. In a subsequent news article, Horvath was publicly critical of the DOJ's initial subpoena, saying she had privacy concerns about the massive request for information. Horvath's new job as Google's Senior Privacy Counsel was announced in August of 2007. EFF asked the DOJ for information about communications between Horvath and Google with a Freedom of Information Act (FOIA) request as Horvath prepared to leave the agency, but the DOJ has not responded to the request more than six months after it was submitted. "Google has an unprecedented ability to collect and retain very personal information about millions of Americans, and the DOJ and other law enforcement agencies have developed a huge appetite for that information," said EFF Senior Counsel David Sobel. "We want to know what discussions DOJ's top privacy lawyer had with Google before leaving her government position to join the company." EFF's suit demands records of all correspondence, email, or other communications between Horvath and Google, and asks the court to order the DOJ to immediately process the documents for release. This FOIA lawsuit is part of EFF's FLAG Project, which uses FOIA requests and litigation to expose the government's expanding use of technologies to invade privacy. Previous EFF FOIA requests have uncovered misuse of National Security Letters (NSLs) by the FBI, as well as improper FBI access to email from an entire computer network. For the full complaint against the DOJ: http://www.eff.org/files/filenode/doj_google/foia_complaint_filed.pdf For more on EFF's FLAG Project: http://www.eff.org/issues/foia For this release: http://www.eff.org/press/archives/2008/02/26 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Embedded Video and Your Privacy EFF has recently started embedding video from YouTube and elsewhere into Deeplinks and other areas of EFF.org. This posed a challenge: On one hand, embedded video is an important tool that we want to be able to use. But, on the other hand, embedded video has worrisome privacy implications that we thought we should do something about. So, we developed a script called "MyTube" to protect your privacy while browsing and viewing embedded videos on EFF.org. It prevents YouTube.com (and other third-party video-hosts) from knowing that you've been to EFF.org or reading Deeplinks unless you specifically click to watch the video. As web capabilities broaden, it's important to keep an eye on the unexpected privacy implications. Increasingly, loading a website or even using a desktop application can send information to multiple third-parties without the users' knowledge or consent. EFF encourages the web community to help us find ways to make these information leaks transparent and controllable for the average user. For examples of the script in action: http://www.eff.org/pages/UGC-test-suite For this complete post from EFF Staff Technologist Seth Schoen: http://www.eff.org/deeplinks/2008/02/embedded-video-and-your-privacy : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * FISA News and Updates The battle against telecom immunity continues in Washington DC, with a fear-mongering press blitz from the Administration and other supporters of immunity for lawbreaking telecoms. EFF Senior Staff Attorney Kurt Opsahl counters some of the many myths delivered by the White House Press Secretary Dana Perino during a recent briefing: http://www.eff.org/deeplinks/2008/02/myth-facts-about-retroactive-immunity-and-attorneys EFF Designer/Activist Hugh D'Andrade documents the "slips and stalls" perpetrated by proponents of immunity, whose yowling arguments for immunizing the telecoms are later contradicted by facts that they must acknowledge: http://www.eff.org/deeplinks/2008/02/republican-slips-and-stalls And this past week, four former senior level intelligence officials wrote to Director of National Intelligence Mike McConnell to challenge recent statements on telecom immunity and its relationship to surveillance and security: http://www.eff.org/deeplinks/2008/02/four-former-intelligence-professionals-write-dni-mcconnell For the text of the letter from the former intelligence officials to DNI Mike McConnell: http://www.nsnetwork.org/node/253 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Google Gets Healthy In its endless quest to wring value from users' personal data, Google is branching out into health records. The Internet search giant has announced a pilot project that would allow users to combine all their personal health records (PHRs) -- information about prescriptions, allergies, injuries, health history etc -- into a single new service that would be as accessible as a Gmail account. The convenience factor is clear -- the new service would make it easier for people who may have multiple health providers to make sure their doctors all have the same information. And for people who seek medical attention while traveling, the ability to bypass their HMO's byzantine bureaucracy in order to have a prescription filled might be welcome. But how sure can you be that your PHRs remain private and secure once Google or some other company has them in its vast and constantly growing database? Who has access to that data, and what laws exist to protect it? For the World Privacy Forum's recently published analysis about PHRs: http://www.worldprivacyforum.org/personal_health_records.html For the AP article previewing the Google PHR service: http://ap.google.com/article/ALeqM5iSiytvdRjss9I7Yq3uCwrwttbQxQD8UUGCE80 For this complete post: http://www.eff.org/deeplinks/2008/02/google-gets-healthy : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * RIAA File-Sharing Complaint Fails to Support Default Judgment The recording industry's litigation campaign against individual file-sharers suffered a setback earlier this month when a federal judge ruled in Atlantic v. Brennan that the boilerplate complaint used by the recording industry in these cases would not support a default judgment. Default judgments may be entered against defendants who never respond to a lawsuit, but only if the complaint lives up to certain minimum standards. In ruling that the recording industry's complaint fell short of this mark, the judge specifically rejected the recording industry's "making available" arguments, thereby endorsing the argument that EFF recently made in Atlantic v. Howell. It remains to be seen whether the recording industry has the particularized evidence necessary to back up their boilerplate complaints. But this ruling suggests that courts are not prepared to simply award default judgments worth tens of thousands of dollars against individuals based on a piece of paper backed by no evidence. For Ars Technica's summary of the legal standards involved in the ruling: http://arstechnica.com/news.ars/post/20080225-riaa-fails-again-to-get-default-judgment-in-uncontested-case.html For the judge's ruling on the RIAA's motion for default judgment: http://www.eff.org/files/atlantic_brennan_080213OrderDenyDefaultJudgment.pdf For this complete post by EFF Senior Staff Attorney Fred von Lohmann: http://www.eff.org/deeplinks/2008/02/riaa-file-sharing-complaint-fails-support-default-judgment : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * CopyrightHistory.org: Copyright Before 1900 Copyright geeks might be interested in an impressive historical project underway in the UK, sponsored by the Arts and Humanities Research Council. Housed at CopyrightHistory.org, the project is self-explanatorily entitled "Primary Sources on Copyright (1450-1900)." The project has sought to create a digital resource covering the history of copyright, from the invention of the printing press to the Berne Convention. For more about CopyrightHistory.org: http://www.copyrighthistory.org/ For more about the March 2008 CopyrightHistory.org conference taking place in London: http://www.copyrighthistory.org/news/article.php?section=26&article=584 For this post: http://www.eff.org/deeplinks/2008/02/thats-public-domain-copyright-1900 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Adobe Pushes DRM for Flash The immense popularity of sites like YouTube has unexpectedly turned Flash Video (FLV) into one of the de facto standards for Internet video. The proliferation of sites using FLV has been a boon for remix culture, as creators made their own versions of posted videos. And thus far there has been no widespread DRM standard for Flash or Flash Video formats; indeed, most sites that use these formats simply serve standalone, unencrypted files via ordinary web servers. Now Adobe, which controls Flash and Flash Video, is trying to change that with the introduction of DRM restrictions in version 9 of its Flash Player and version 3 of its Flash Media Server software. Instead of an ordinary web download, these programs can use a proprietary, secret Adobe protocol to talk to each other, encrypting the communication and locking out non-Adobe software players and video tools. We imagine that Adobe has no illusions that this will stop copyright infringement -- any more than dozens of other DRM systems have done so -- but the introduction of encryption does give Adobe and its customers a powerful new legal weapon against competitors and ordinary users through the Digital Millennium Copyright Act (DMCA). For more about Gnash, the GNU Flash movie player that may be threatened by the new DRM scheme: http://www.gnashdev.org/ For this complete post by EFF Staff Technologist Seth Schoen: http://www.eff.org/deeplinks/2008/02/adobe-pushes-drm-flash : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * See EFF at the O'Reilly Emerging Technology Conference and Join us for the Pioneer Awards on March 4! Heading to San Diego for the O'Reilly Emerging Technology Conference (ETech) next week? Plan to catch EFF's "On A Brighter Note..." panel, where EFF lawyers and activists will put on their rose-tinted spectacles and describe our best case scenarios: near-future technology that will help you defend your rights, real world policy initiatives that could help save the Net, and techniques and tricks that you can bake into your work now that will help preserve all our freedoms, for now and for good. Also, don't forget to visit our booth and grab some EFF swag during exhibit hours. And if you use code "et08eff" you will save a juicy 30% off registration fees! http://www.oreilly.com/go/et3cheff While there, join EFF in honoring Mitchell Baker and the Mozilla Foundation, Michael Geist, and Mark Klein at the 17th annual Pioneer Awards! Michael Robertson, the Founder and CEO of MP3.com, Linspire, MP3tunes, and Gizmo5, will keynote the ceremony with his talk: "What to Expect When You're Expecting... To Be Sued". Awarded every year since 1991, the Pioneer Awards recognize leaders who are extending freedom and innovation on the electronic frontier. This year, the Pioneer Awards ceremony will be held in conjunction with ETech at the San Diego Marriott Hotel and Marina on Tuesday March 4th, 2008. The event begins at 7:15 p.m. The event is open to the public. Tickets to the Pioneer Awards ceremony and Michael Robertson's keynote address are $35. You can buy your ticket in advance at: http://secure.eff.org/pioneerfundraiser TCHO is the Platinum Sponsor for the 2008 Pioneer Awards ceremony. Founded by Wired co-founder Louis Rossetto and legendary chocolatier and former technologist Timothy Childs, TCHO is "a new chocolate company for a new generation of chocolate enthusiasts." TCHO will sample a "beta release" of their dark chocolate during the awards ceremony. Attendees are invited to taste two different formulas and vote for a favorite. Feedback directly influences the formula used for the national release bar. Learn more about TCHO at: http://www.tcho.com Bronze sponsors of the 2008 Pioneer Awards ceremony include: MOG, Three Rings, JibJab, Atomic PR, Barracuda Networks. For more about ETech: http://conferences.oreillynet.com/ For more information about TCHO: http://tcho.com/ For more about the 17th Annual EFF Pioneer Awards: http://www.eff.org/awards/pioneer : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EFF at Plutopia! SXSW Interactive Gathering of Tribes Going to SXSW Interactive? Stop by the Plutopia party on March 10, 2008, and hang out with EFF! The theme of this year's gathering is "convergence, sustainability, futurism, and art." Author Bill McKibben will be delivering a talk about sustainability and local-scale enterprise; and geek comedian Heather Gold will be making a presentation alongside "Internet rockstar Jonathan Coulton, queer novelist Michelle Tea, twitter founder Ev Williams, Look Shiny's Nick Douglas, the other Internet rockstar Ben Brown, gamemaker Jane McGonigal, surprise guests and you." The event takes place on Monday March 10, 2008, at Scholz Garten, 1607 San Jacinto Blvd., Austin. It's $10 at the door or free with a costume and/or your SXSWi badge. For more about Plutopia: http://plutopia.org : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Scare tactics on president's spying powers Are White House allies playing election-year hardball on eavesdropping? http://www.newsweek.com/id/116683 ~ Is Microsoft embracing "open source"? A closer look at Microsoft's patent pledge shows their plans are not so "open" after all. http://www.softwarefreedom.org/perspectives/2006/ms-patent-promise/ ~ Network Solutions sued over domain name policy Network Solutions' policy of automatically registering searched domain names has sparked a class-action lawsuit. http://www.washingtonpost.com/wp-dyn/content/article/2008/02/26/AR2008022601062.html ~ Spying on customers was commonplace at Wisconsin utility company Employees of WE Energies routinely snooped on customers' private data. http://news.yahoo.com/s/ap/20080223/ap_on_hi_te/snooping_workers ~ RIAA marks one year of college threat-letter drive Thousands of individuals have been dragged into court, but artists are *still* waiting to get paid. http://www.news.com/8301-10784_3-9876121-7.html ~ Cell phone recording = wiretapping? A do-gooder who recorded abusive police officers was himself arrested under a controversial 'wiretapping' law http://thephoenix.com/article_ektid56680.aspx ~ AT&T billboard is "liberated" The Billboard Liberation Front has corrected an billboard so that it tells the truth about AT&T cooperation with the NSA. http://www.boingboing.net/2008/02/28/billboard-liberation-1.html : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * 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: 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. Current and back issues of EFFector are available via the Web at: http://www.eff.org/effector/
