EFFector Vol. 20, No. 27 July 11, 2007 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 431st Issue of EFFector:
- FBI Records Show Gonzales Knew About Years of Chronic NSL Problems
- An Independence Day Resolution: Reform FOIA!
- RIAA Should Pay for Single Mom's Two-Year Ordeal
- Divided Appeals Court Rules Against ACLU on NSA Wiretapping
- YouTube Embedding and Copyright
- Visit EFF at OSCON!
- miniLinks (10): Why the iPhone Isn't Really Revolutionary
- 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. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * FBI Records Show Gonzales Knew About Years of Chronic NSL Problems EFF Lawsuit Uncovers History of Surveillance Mistakes Washington, D.C. - Documents obtained by the Electronic Frontier Foundation (EFF) show years of chronic problems with the Federal Bureau of Investigation's use of National Security Letters (NSLs) to collect Americans' personal information and that Attorney General Alberto Gonzales has long been aware of these problems. The documents were disclosed after EFF sued the government under the Freedom of Information Act (FOIA) earlier this year for records related to a scathing Justice Department critique of FBI NSL activity. The records detail more than 40 instances of improper, unauthorized collection of information about individuals, including unlawful access to phone records and email. The records show that Gonzales himself was sent several of these problem reports, including one less than a week before he told a congressional committee that no civil liberties abuses have resulted from the USA PATRIOT Act. He also voiced surprise when the Justice Department report on NSL misuse was made public earlier this year. "These chronic privacy problems have long been known within the Justice Department but still were kept secret from those who really needed to know -- members of the American public, including those who were surveilled," said EFF Staff Attorney Marcia Hofmann. "The FBI can't be trusted to police its own agents. It's time for Congress to provide oversight to protect American citizens." The FBI's use of NSLs was expanded under the USA PATRIOT Act in 2001, allowing federal agents to gather private records about anyone's domestic phone calls, emails, and financial transactions without any court approval -- as long as an FBI agent claims that the information could be related to a terrorism or espionage investigation. EFF submitted a FOIA request about the reported misuse of NSLs in March, and when no documents were forthcoming, EFF sued the FBI for their immediate release. Last month, a judge held that the FBI was required to release records related to the inspector general's report beginning on July 5, with more documents to be disclosed every 30 days. In all, 1138 pages of NSL records were released to EFF late last week in the first batch of documents complying with the court's order. "This is by no means the whole story on NSL abuse," said EFF Senior Counsel David Sobel. "We're looking forward to receiving the rest of the documents. Americans deserve the whole story on the FBI's deeply flawed program to issue NSLs." For the complete FBI documents: http://www.eff.org/flag/07656JDB/ For initial analysis of the documents: http://www.eff.org/deeplinks/archives/005349.php For this release: http://www.eff.org/news/archives/2007_07.php#005351 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * An Independence Day Resolution: Reform FOIA! On July 4, 1966, President Lyndon Johnson signed the FOIA into law. FOIA gave weight to a principle that is fundamental to any democracy: the right of the people to know what the government is doing. Forty-one years later, FOIA remains an essential tool used by the public, public advocacy groups (including EFF), and news organizations to uncover information that would otherwise remain hidden from public view. But a recent report from the George Washington University's National Security Archive and the Knight Foundation shows that FOIA is far from a perfect tool of transparency in government. The study found that requests for information often languish in bureaucratic limbo for years -- the oldest dates back to 1987! The National Security Archive actually had to use FOIA to find out how many FOIA requests were still pending. Luckily, a new bill to reform FOIA is working its way through Congress, supported by a broad coalition of organizations that spans the political spectrum. The OPEN Government Act (S. 849) brings much needed reform to FOIA and puts in place incentives for federal agencies to process FOIA requests in a timely fashion. The bill would create a tracking system for FOIA requests so that they don't get lost in the bowels of federal agencies, as well as allowing requesters who prevail in FOIA litigation to recover reasonable attorney fees. Meanwhile, EFF's FOIA lawsuits are making steady strides. Along with uncovering information about National Security Letters, we've filed suit seeking orders, rules and guidelines issued by the Foreign Intelligence Surveillance Court about the Administration's warrantless surveillance program. There will be a hearing in the case on July 26 in Washington, DC. Take action to support the OPEN Government Act: http://action.eff.org/site/Advocacy?id=285 For this post and related links: http://www.eff.org/deeplinks/archives/005346.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * RIAA Should Pay for Single Mom's Two-Year Ordeal Innocent Target of File-Sharing Lawsuit Racked Up Legal Fees Fighting Baseless Charges Seattle - The Recording Industry Association of America (RIAA) should pay for a single mom's two-year legal ordeal fighting a baseless file-sharing lawsuit, the Electronic Frontier Foundation (EFF) told Washington state court in an amicus brief filed last week. The nightmare began for Dawnell Leadbetter in January of 2005, when she received a letter from the RIAA that accused her of illegally downloading copyrighted music and claiming she owed hundreds of thousands of dollars. Leadbetter contacted the RIAA to deny the baseless claims, and she refused to pay any settlement monies. In response, the RIAA sued Leadbetter, and Leadbetter hired an attorney to fight the charges. After months of legal wrangling, the RIAA finally dropped the case in December of 2006. But in the meantime, Leadbetter had incurred significant attorney's fees. "Ms. Leadbetter isn't the only innocent Internet user that has been ensnared by the RIAA's litigation dragnet. But she is one of the few who have fought back, resisting RIAA pressure to pay settlement monies for something she did not do," said EFF Staff Attorney Jason Schultz. "The RIAA's settlement offers are usually less that what it would cost to defend yourself, so it's a big commitment to hire a lawyer to clear your name. Reimbursing Ms. Leadbetter's attorney's fees could encourage other innocent lawsuit targets to stand up for themselves." Since 2003, the RIAA has sued over 20,000 people for allegedly sharing music over the Internet. The industry uses questionable investigative methods tactics to find its targets, and then it often employs erroneous legal theories in its quest for settlement monies. In Ms. Leadbetter's case, the suit against her included accusations of "secondary liability" -- putting her on the hook for anything that happened on her Internet account, whether she knew about it or not. "The RIAA knows that this legal theory is wrong. But if innocent victims are too scared to hire an attorney and fight back, the public could suffer under the misconception that these bogus theories are legitimate," Schultz said. "Awarding attorney's fees to Ms. Leadbetter helps protect everyone's rights under copyright law." The amicus brief was filed in U.S. District Court in Seattle in conjunction with attorney Derek Newman of Newman & Newman LLP. For the full amicus brief: http://eff.org/legal/cases/interscope_v_leadbetter For more on the RIAA lawsuit campaign: http://www.eff.org/share For this release: http://www.eff.org/news/archives/2007_07.php#005347 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Divided Appeals Court Rules Against ACLU on NSA Wiretapping A federal appeals court handed down a defeat for your civil liberties last week, ordering the dismissal of the ACLU's case challenging the NSA's warrantless wiretapping program. In a 2-1 ruling, the 6th U.S. Circuit Court of Appeals found that the plaintiffs, attorneys and journalists who had stopped communicating with their foreign clients and sources for fear of illegal wiretapping did not have legal standing to sue. The case was based on the President's admissions about the warrantless wiretapping. Judge Ronald Gilman dissented, finding that the warrantless surveillance program violated the law and rejecting the President's assertion of inherent authority to break laws in the name of national security. The court's decision threw out last year's district court ruling, which found the NSA's Terrorist Surveillance Program "violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the Foreign Intelligence Surveillance Act and Title III." EFF has sued AT&T on behalf of its customers for the telecommunications giant's role in the NSA's illegal spying, which we allege goes beyond what the President has directly admitted and intercepts the phone and Internet communications of millions of ordinary Americans. Last summer, Judge Walker rejected the government's motion to dismiss EFF's case, along with AT&T's motion to dismiss, and allowed the case to go forward. That ruling is on appeal and will be heard by the 9th Circuit on August 15, 2007, in San Francisco. For this post and related links: http://www.eff.org/deeplinks/archives/005348.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * YouTube Embedding and Copyright There seems to be a considerable amount of interest in and confusion about the copyright law consequences of embedding a YouTube video in your blog. In fact, the Blog Herald recently ran a story suggesting that bloggers could be on the hook for copyright infringement if they embed a video that turns out to be infringing. Well, the news really isn't that dire. In fact, we believe that bloggers are generally pretty safe on this score, at least until someone notifies them that an embedded video is infringing. First, it's important to understand what an embedded YouTube video is -- it's a link. No copy of the YouTube video is being stored on your server (only the HTML code for the embed). The video stays on, and is streamed from, YouTube's servers. That makes the embedded YouTube video essentially indistinguishable from the in-line image links that are used all over the Web, including in Google's Image Search. In the recent Perfect 10 v. Amazon ruling, the Ninth Circuit made it very clear that where in-line links are concerned, there is absolutely no direct copyright infringement liability. So, for purposes of direct infringement, the answer to one question will generally resolve the issue: where is the copy hosted? That leaves contributory infringement. If you link to a video that you know is infringing, or that any reasonable person would have known is infringing, and if your link materially contributes to the infringement, then you could be liable for contributory infringement -- a kind of "aiding and abetting" liability. The contributory infringement test should leave plenty of breathing room for most bloggers. Two rules of thumb should avoid most issues -- (1) don't embed videos that are obviously infringing, and (2) consider removing embedded videos once you've been notified by a copyright owner that they are infringing. If you want even more protection, you can register yourself as the "Copyright Agent" for your blog (requires a form and $80 payment to the U.S. Copyright Office), familiarize yourself with the requirements of the DMCA's online service provider "safe harbors" (the chief one for most bloggers will be notice-and-takedown), and take advantage of the same protections that shield Yahoo! and Google when they link to sites that may include infringing materials. In short, embedding YouTube videos isn't that scary from a copyright POV, at least until a copyright owner takes the trouble to notify you. For this post and related links: http://www.eff.org/deeplinks/archives/005350.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Visit EFF at OSCON! EFF will be at the O'Reilly Open Source Convention (OSCON) in Portland, Oregon on July 25-26. Come visit us at booth #121, and grab some schwag: http://conferences.oreillynet.com/os2007/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Why the iPhone Isn't Really Revolutionary Tim Wu points out that beneath the iPhone's snazzy design lurks a standard business model. http://www.slate.com/id/2169352/fr/flyout ~ The "iPhone Killer" Arrives An open source, touch-screen, Linux-based phone that can be used with any GSM carrier. http://blog.wired.com/monkeybites/2007/07/the-linux-power.html ~ Top Secret: We're Wiretapping You The FBI accidentally gave a DC attorney proof that he was being wiretapped. http://www.wired.com/science/discoveries/news/2007/03/72811?currentPage=all ~ Judge Dismisses New York Times Lawsuit A FOIA request on warrantless wiretapping was thrown out by a federal judge, citing executive privilege. http://www.washingtonpost.com/wp-dyn/content/article/2007/07/02/AR2007070201600.html ~ Net Growth Prompts Privacy Update The leading industrial nations adopt new guidelines on privacy. http://news.bbc.co.uk/2/hi/technology/6254650.stm ~ EU, U.S. to Share Passenger Data A deal between the EU and the U.S. allows the storage of traveler data for up to 15 years. http://edition.cnn.com/2007/WORLD/europe/06/29/europe.data.ap/index.html ~ German Parliament Passes New Copyright Act Reforms allow users to make personal copies, but not to "break" DRM. http://www.heise.de/english/newsticker/news/92318 ~ Court Holds Belgian ISP Responsible for File Sharing ISPs in Belgium are ordered to police their networks for piracy. http://www.macworld.com/news/2007/07/05/filesxharing/index.php ~ Digital Music Sales Flex Muscles Does good news for digital sales mean bad news for the traditional album? http://arstechnica.com/news.ars/post/20070705-growing-digital-music-singles-killing-the-album.html ~ Fake Steve Jobs: How I Put Labels on a Leash Tells the story of how the major labels handed Apple an 80% share of the digital music market. <http://fakesteve.blogspot.com/2007/07/music-industry-nobs-have-finally.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: Derek Slater, Activism Coordinator 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/ Click here to change your email address: http://action.eff.org/addresschange This newsletter is printed on 100% recycled electrons.
