EFFector Vol. 20, No. 28  July 18, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 432nd Issue of EFFector:

• Action Alert: Senate Intel. Committee Threatening to Shelter Telcos for Illegal Spying!
• Dangerous Ruling Puts Interactive Web Services at Risk
• California Judge Tentatively 'Nullifies' Election Result
• Help EFF Examine Once-Secret FBI Docs
• Keep Your Eye on NSL Abuse Ball
• Ruling Endangers Privacy in Email and IP Addresses
• DRM-Free, MP3 Streaming Music Radio Under Attack in Royalty Negotiations
• Warner Music Drops Lawsuit, Licenses Free All-You-Can-Eat Streaming on iMeem
• How Copyright Law Talks to Fans
• EFF at OSCON Next Week!
• New Membership Shirts Now Available!
• New in the EFF Shop!
• miniLinks (10): Data Mining Report from Department of Justice
• 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/

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 http://action.eff.org/site/Ecard?ecard_id=1061

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

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* Action Alert: Senate Intel. Committee Threatening to 
Shelter Telcos for Illegal Spying!

With your help, we've made significant progress in 
pressuring Congress to scrutinize the NSA spying program. 
But the fight is far from over -- in fact, the Senate 
Intelligence Committee is now quietly considering 
legislation that could let telco giants like AT&T off the 
hook for their role in the surveillance. Take action now 
and help stop the illegal spying:
http://action.eff.org/fisa

In January 2006, EFF filed suit against AT&T for violating 
its customers' privacy and helping the NSA spy on millions 
of Americans' telephone and Internet communications. 
Recently, Congress finally made some strides towards 
checking the president's power: the Senate Judiciary 
Committee issued subpoenas to the Bush Administration for 
critical information about the surveillance program last 
month, and the Intelligence Committee in May explicitly set 
aside a proposal that could have immunized companies that 
collaborated with the government.

But now the Intelligence Committee is back in negotiations 
with the Administration about proposals that could shelter 
the telcos and threaten cases like ours. We're hearing 
credible rumors that a bill could be marked-up in closed 
session during the next few weeks.

One of your Senators is on this key committee -- call him 
or her now before it's too late:
http://action.eff.org/fisa

For more on EFF's class-action lawsuit against AT&T:
http://www.eff.org/legal/cases/att/

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Dangerous Ruling Puts Interactive Web Services at Risk

EFF Urges Appeals Court to Protect Innovation

San Francisco - The Electronic Frontier Foundation (EFF) 
has filed a brief urging the 9th U.S. Circuit Court of 
Appeals to reconsider a recent ruling that endangers 
features like search customization and user feedback on 
interactive web services.

The ruling came in a housing discrimination lawsuit against 
Roommate.com, which runs an Internet forum where users can 
search for potential roommates. A three-judge panel held 
that Roommate.com could be held liable for the activity of 
its users because it "suggested, encouraged, or solicited" 
and then sorted and categorized content that may have 
violated fair housing law. But this reasoning threatens 
both current and future Internet innovators with 
potentially insurmountable liability problems -- impacting 
everything from search engine functionality to the ability 
to tag content on media sharing sites such as YouTube and 
Flickr -- and is directly contrary to federal law. As EFF 
argued Friday in its amicus brief in support of appeal, 
Roommate.com is immune to liability for its users' 
activities under Section 230 of the Communications Decency 
Act, which specifically protects hosts of interactive 
computer services.

"Section 230 of the Communications Decency Act was passed 
specifically to help the Internet continue to grow without 
being tied down by regulation," said EFF Staff Attorney 
Matt Zimmerman. "If service providers have to worry about 
potentially crushing liability, it will strongly discourage 
the development of new tools for online users. In fact, 
many of the tools we use already would be impacted by this 
ruling, potentially crippling innovations in search and 
customization."

Search engines, for example, are designed to categorize and 
sort content -- features potentially at risk under the 
Ninth Circuit's ruling. Sites that solicit user feedback 
and opinions and allow searching by user ranking could also 
run afoul of the new ruling.

"Courts across the country have recognized the critical 
role that Section 230 plays in Internet innovation," said 
Zimmerman. "The 9th Circuit should take this appeal and 
clarify that its strong protections remain in full force."

For the full amicus brief:
http://www.eff.org/legal/cases/roomate.com/EFFroommateamicus.pdf

More on Section 230 of the Communications Decency Act:
http://www.eff.org/bloggers/lg/faq-230.php

For this release:
http://www.eff.org/news/archives/2007_07.php#005361

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* California Judge Tentatively 'Nullifies' Election Result

Oakland, Calif. - Last Friday, a California judge heard 
arguments on whether to impose sanctions against Alameda 
County for botching its response to a contested race 
conducted on Diebold electronic voting machines. In a 
tentative ruling issued the day before, Judge Winifred Y. 
Smith said that she was leaning toward nullifying election 
results in the race and ordering a revote.

Americans for Safe Access and voters in the city of 
Berkeley brought a legal challenge seeking a recount after 
Measure R, an initiative addressing the operation of 
medical marijuana dispensaries, lost by fewer than 200 
votes in the 2004 election. While the lawsuit was ongoing, 
election officials returned the voting machines to supplier 
Diebold Election Systems, and 96% of the election data was 
destroyed. The Electronic Frontier Foundation (EFF) helped 
analyze the remaining data, but too many questions 
remained.

"Without examining the redundant data, audit logs, and 
chain-of-custody records, no one can confirm whether any of 
the reported malfunctions were ever resolved or whether 
vote data was manipulated or lost," said EFF Staff Attorney 
Matt Zimmerman. "As a result, no one can ever confirm 
whether the vote result announced by the county was 
correct."

Smith's tentative ruling orders the county to place Measure 
R on the ballot in the next general election, as well as to 
pay the costs for the incomplete recount. The judge heard 
arguments for both sides on Friday, and she's likely to 
announce whether her ruling becomes final within the next 
week or two.

For this release:
http://www.eff.org/news/archives/2007_07.php#005359

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* Help EFF Examine Once-Secret FBI Docs

We've already started scouring newly-released documents 
relating to the misuse of National Security Letters to 
collect Americans' private information. But don't let us 
have all fun -- you, too, can dive into the docs and help 
uncover the truth about the FBI's abuse of power! All 1138 
pages are freely downloadable (with searchable text) from 
EFF's website, and we'll be posting a new batch every 
month.

We've had over 8000 downloads so far, and the blogosphere 
is starting to light up with feedback and analysis of the 
documents, which were disclosed after EFF sued the 
government under the Freedom of Information Act (FOIA) 
earlier this year. Over at Wired, anonymous blogger "Threat 
Level" reports that much of the mischief at the FBI seems 
to be emanating from a mysterious "Room 4944." It would be 
nice to know who knew what when.

The whole point of sunshine laws like FOIA is to help the 
public hold the government accountable, and it's great to 
see individuals exercising their right to know. And don't 
forget to mention EFF if you use these documents in any 
way. We're a nonprofit organization, and our funding for 
this project depends on showing that our work is important 
and relevant. For more information about these documents or 
EFF's FLAG project, please contact EFF Staff Attorney 
Marcia Hofmann at marcia(at)eff.org.

Read the newly-released documents:
http://www.eff.org/flag/07656JDB/

Read the Wired article, FBI Patriot Act Abuse Documents: 
What Special Project Lives in FBI HQ Room 4944?:
http://blog.wired.com/27bstroke6/2007/07/fbi-patriot-act.html

For more information on EFF's FLAG Project:
http://www.eff.org/flag/

For this post:
http://www.eff.org/deeplinks/archives/005353.php

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* Keep Your Eye on NSL Abuse Ball

Last week, EFF reported that FBI records showed that 
Attorney General Alberto Gonzales knew about years of 
chronic National Security Letter problems, even before he 
testified that "[t]here has not been one verified case of 
civil liberties abuse." This carefully worded government 
talking point has led to discussions of the definition of 
"abuse."

Standard definitions of abuse include "improper use," and 
the documents themselves admit to at least "improper" 
collection of information. None of the definitions require 
intentional conduct or flagrant problems.

While the revelations certainly do seem to show, at a 
minimum, improper use, let's keep our eye on the ball. Now 
that the truth is coming out, and it's clear that there 
were significant problems and Gonzales knew about them, 
isn't it a little strange to be seeking cover from the 
definition of "abuse" rather than discussing why the AG 
didn't talk straight to the American people and Congress?

Read EFF Senior Staff Attorney Kurt Opsahl's entire post: 
http://www.eff.org/deeplinks/archives/005355.php

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* Ruling Endangers Privacy in Email and IP Addresses

The Ninth Circuit recently held in US v. Forrester that the 
Fourth Amendment does not protect against government 
surveillance of the to/from addresses of one's email 
messages, the IP addresses of websites one has visited, and 
the total volume of information transmitted to or from 
one's ISP account.

This dangerous decision relies on a faulty analogy. The 
court accepted the argument that, because it is not a 
Fourth Amendment search for the government to capture 
dialed telephone numbers with "pen registers" and "trap and 
trace devices," the same is true for capturing email 
addresses (as opposed to subject lines in email headers) 
and IP addresses. But, as we've pointed out elsewhere, the 
latter can reveal far more intimate details about Internet 
activities. Unlike a phone number, an email address can 
communicate a message (e.g., "VoteBush@aol.com" or 
"repealPatriot@eff.org") and include constitutionally 
protected content.

The court appears to grasp this distinction, but, 
unfortunately, doesn't follow it to the correct conclusion.

Read EFF's analysis:
http://www.eff.org/deeplinks/archives/005358.php

Download the Ninth Circuit decision in US v. Forrester:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F0E09BB37A97D51A88257310004D1DAC/$file/0550410.pdf?openelement

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* DRM-Free, MP3 Streaming Music Radio Under Attack in 
Royalty Negotiations

Last Friday, major label-backed licensing authority 
SoundExchange gave small and non-commercial music 
webcasters a temporary reprieve, stating that they would 
continue negotiations and not immediately enforce the 
ridiculous statutory royalty rate increase. SoundExchange 
is also negotiating a lower rate for large commercial 
stations like Pandora.

However, Net radio isn't in the clear yet. In fact, it 
appears that such negotiated lower royalty rates may come 
at a very steep price: taking away DRM-free streaming and 
your ability to lawfully record music radio.

For this post and related links:
http://www.eff.org/deeplinks/archives/005360.php

Read Wired Magazine's article:
http://www.wired.com/entertainment/music/news/2007/07/webcasters_face_music

See what the Washington Post has to say about SoundExchange:
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/12/AR2007071202169.html?hpid=topnews

For the latest report at Radio and Internet Newsletter (RAIN):
http://www.kurthanson.com/archive/news/071307/index.shtml

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* Warner Music Drops Lawsuit, Licenses Free All-You-Can-Eat 
Streaming on iMeem

After suing media-hosting and social networking site iMeem 
for copyright infringement, Warner Music has now dropped 
its claims and licensed free streaming of its catalog in 
exchange for a cut of ad revenue. Though several other 
labels had already granted such licenses, Warner is the 
first major label to do so. We don't know the specifics of 
the deal, but it appears that users of the site can now 
keep sharing, playlisting, and listening to Warner songs, 
iMeem gets to keep providing innovative ways for them to do 
so, artists get paid -- and no one gets sued in the 
process.

For the complete post and related links:
http://www.eff.org/deeplinks/archives/005357.php

Read the Information Week article:
http://www.informationweek.com/news/showArticle.jhtml?articleID=201001085

See EFF's, A Better Way Forward: Voluntary Collective 
Licensing of Music File Sharing:
http://www.eff.org/share/?f=collective_lic_wp.html

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* How Copyright Law Talks to Fans

Without fans, there would be no music industry. Most people 
in the music industry understand this -- certainly the 
artists do.

But apparently not the lawyers who work for them.

An ardent fan of the New Pornographers (a great Canadian 
indie rock band that includes Neko Case, among others) 
recently posted a copy of a forthcoming B-side to his blog 
page on MOG, which permits users to upload songs for 
streaming to others. He then received an email from Web 
Sheriff, an online copyright enforcer hired by the record 
label, Matador.

The message essentially accuses the fan of being a pirate 
and makes a veiled legal threat, all the while pretending 
to "appreciate" what it means to be a fan.

So here's our question -- do the band members know what is 
being done in their name? Have they signed off on these 
emails being sent by Web Sheriff to their fans? Are they 
getting copies of the responses that the fans send after 
getting threatened like this? (For that matter, are the 
labels's own marketing people even seeing these?) We 
suspect not.

Read EFF Senior Attorney Fred von Lohmann's full take on 
the issue:
http://www.eff.org/deeplinks/archives/005352.php

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* EFF at OSCON Next Week!

EFF will be at the O'Reilly Open Source Convention (OSCON) 
in Portland, Oregon next week on Wednesday, July 25, and 
Thursday, July 26. Come visit us at booth #121 and grab 
some cool schwag:
http://conferences.oreillynet.com/os2007/

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New Membership Shirts Now Available!

Our new EFF membership shirts have arrived. On the front 
you'll see our famous and instantly recognizable logo, and 
on the back, six icons representing our big issues: free 
speech, innovation, privacy, fair use, e-voting and 
international online freedom. Shirts are black, are 
sweatshop-free American Apparel brand, and are available in 
men's and women's styles. Join EFF (or renew your 
membership) and get one today!

Become an EFF member:
http://action.eff.org/membership

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New in the EFF Shop!

"G33k Mafia" is the debut, self-published novel by Rick 
Dakan. It is the story of Paul Reynolds, a comic-book 
artist who has been forced out of the video-game company he 
co-founded, only to find himself drawn into the hacker 
subculture by a beautiful high-tech con artist named Chloe.

Read Cory Doctorow's BoingBoing review:
http://www.boingboing.net/2006/12/12/geek_mafia_awesome_n.html

Buy Rick Dakan's geek caper "G33k Mafia" at EFF's shop:
http://secure.eff.org/shop

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* miniLinks
The week's noteworthy news, compressed.

~ Data Mining Report from Department of Justice
A DoJ report on data mining raises more questions than it 
answers.	
http://arstechnica.com/news.ars/post/20070716-data-mining-at-the-fbi-digging-for-terrorists-insurance-scammers-and-identity-thieves.html

~ In Intelligence World, a Mute Watchdog
Is the civilian Intelligence Oversight Board doing its job?
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/14/AR2007071400862.html

~ New York Plans Surveillance Veil for Downtown
100 new cameras would be added to build a London-style 
surveillance system.
http://www.nytimes.com/2007/07/09/nyregion/09ring.html?ex=1341633600&en=2644be97bd9577f9&ei=5088&partner=rssnyt&emc=rss

~ Respectful Cameras
A new type of video surveillance promises to protect the 
privacy of individuals.
http://www.technologyreview.com/Infotech/18617/?a=f

~ "I've Got Nothing to Hide"
Law Professor Daniel Solove takes on the most common 
defense of government surveillance.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565

~ Researcher: Optimal Copyright Term Is 14 Years
Cambridge University Ph.D. candidate Rufus Pollock uses 
economics formulas to calculate "optimal level for 
copyright."
http://arstechnica.com/news.ars/post/20070712-research-optimal-copyright-term-is-14-years.html

~ How a Fan Becomes a Copyfighter
An interview with EFF Senior Staff Attorney Fred von 
Lohmann.
http://www.hearsayculture.com/?p=55

~ A Better Way Forward
Fred von Lohmann's prescription for how to set up blanket 
licenses for campus downloading.
http://www.contentagenda.com/info/CA6460989.html

~ Interpol Chief Wants Databases to Track Criminals
Airlines would share passenger data -- including biometric 
data -- with Interpol under a new plan.
http://news.com.com/2100-1028_3-6196190.html

~ Seeing Yellow
Write your printer manufacturer to complain about tracking 
dots!
http://www.seeingyellow.com/

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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:
Julie Lindner, Education Outreach Coordinator
 julie@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 
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Press releases and EFF announcements & articles may be 
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