EFFector 17.33: Misguided Copyright Bill Moving Through Congress

[David Farber <dave () farber net>]

Begin forwarded message:

From: EFFector list <editor () eff org>
Date: September 10, 2004 12:29:09 AM EDT
To: "farber () central cis upenn edu" <farber () central cis upenn edu>
Subject: EFFector 17.33: Misguided Copyright Bill Moving Through 
Congress
Reply-To: editor () eff org

EFFector  Vol. 17, No. 33  September 10, 2004  donna () eff org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 305th Issue of EFFector:

 * Misguided Copyright Bill Moving Through Congress
 * EFF Files Brief in Email Privacy Case: Councilman Case
   Should Be Heard Before Full Court
 * Log Not, Subpoena Not: No-Logging Policy Helps Indymedia
   Protect Free Speech
 * Maryland E-voting Update - the Good, the Bad, and the Ugly
 * Only 54 Days Until the Election - Register to Vote Now!
 * MiniLinks (14): Save Betamax by Calling Out the Induce Act
 * Administrivia

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

To join EFF or make an additional donation:
 <https://secure.eff.org/>

EFF is a member-supported nonprofit.  Please sign up as a
member today!

: . : . : . : . : . : . : . : . : . : . : . : . : . : . :

* Misguided Copyright Bill Moving Through Congress

San Francisco, CA - The House Judiciary Committee has marked
up and reported out H.R. 4077, the Piracy Deterrence and
Education Act (PDEA).  The measure is now ready for a vote
by the entire House of Representatives.  The Senate has
taken no action on any companion bill.

The PDEA would impose criminal penalties on those who share
more than 1,000 infringing files on a peer-to-peer network.
Recent surveys by Ruckus Network show that the average
college student who uses P2P file-sharing software shares
1,100 files.  The legislation would also have the Department of
Justice foot the bill for sending warning notices to 10,000
filesharers.

"Tens of millions of Americans continue to use P2P networks,"
said Fred von Lohmann, senior intellectual property attorney
at EFF.  "Turning college kids into criminals is not going
to change that reality, any more than the 4,000 lawsuits
against file-sharing music fans has.  This is a business
problem, not a FBI problem."

EFF has proposed a collective licensing solution that offers
an alternative to criminalizing the behavior of millions
of Americans.

MSNBC article: "House Panel Okays Copyright, Spyware Bills":
<http://msnbc.msn.com/id/5945126/>

EFF white paper: "A Better Way Forward: Voluntary
Collective Licensing of Music File Sharing":
<http://www.eff.org/share/collective_lic_wp.php>

EFF action alert to stop the PDEA:
<http://action.eff.org/stop_pdea>

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* EFF Files Brief in Email Privacy Case

Councilman Case Should Be Heard Before Full Court

Boston, MA - Last Friday, EFF submitted a friend-of-the-court
brief in a case that will have a profound effect on the
privacy of Internet communications.

The brief argues that US v. Councilman, previously
decided by a panel of First Circuit judges, should be
reheard by the entire First Circuit Court of Appeals.
In the earlier panel decision, the court ruled that it
does not violate criminal wiretap laws when an email
service provider monitors the content of users'
incoming messages without their consent.

The defendant in the case, Bradford Councilman, is a
bookseller who offered email service to his customers.
Councilman configured the email processing software so
that all incoming email sent from Amazon.com, a
competitor, was secretly copied and sent to his personal
email account before it arrived in the intended
recipient's mailbox.  The court ruled that this is
legal.  As the panel itself stated in the ruling, "it
may well be that the protections of the Wiretap Act
have been eviscerated as technology advances."

Co-authored by Orin Kerr and Peter Swire, law
professors specializing in Internet privacy issues, the
amicus brief is co-signed by EFF, the Center for
Democracy and Technology (CDT), the Electronic Privacy
Information Center (EPIC), and the American Library
Association (ALA).  Amici argue that a rehearing is
necessary because the Councilman decision disrupts
the traditional understanding of Internet surveillance
laws, raising significant constitutional questions
under the Fourth Amendment.

"This court decision has repercussions far beyond a
single criminal prosecution," said Kevin Bankston, EFF
attorney and Equal Justice Works/Bruce J. Ennis Fellow.
"The panel decision effectively rewrites the field of
Internet surveillance law in ways that Congress never
intended.  If private service providers like Councilman
can avoid the Wiretap Act's criminal prohibition against
interception by a technicality in the way the messages
are transmitted, it follows that the government will
also be able to monitor our communications without
having to ask a judge for a wiretap order.  If the
decision is allowed to stand, it will eliminate the
Wiretap Act as the primary curb against private and
government snooping on the Internet."

For this release:
<http://www.eff.org/news/archives/2004_09.php#001878>

Amicus brief in US v. Councilman:
<http://www.eff.org/cgi/tiny?urlID=239>
(EFF, PDF file)

Washington Post article: "Court Limits Privacy of Email
Messages":
<http://www.eff.org/cgi/tiny?urlID=240>
(Registration unfortunately required.)

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* Log Not, Subpoena Not: No-Logging Policy Helps Indymedia
Protect Free Speech

The freedom to publish anonymously has been critical to
our democracy since the time of the Federalist Papers.
Last week, Online Service Provider (OSP) Indymedia helped
defend this freedom through a no-logging policy designed
to protect the privacy and anonymity of its users
and website visitors.

The Department of Justice served a grand jury subpoena
to Calyx Internet Access, which hosts Indymedia's New York
website, as part of an investigation into the posting
of a list of delegates at the Republican National
Convention - a list published on Indymedia websites
as well as elsewhere on the Web.  The investigation seemed
intended to chill First Amendment-protected expression,
but because they had nothing to disclose, Calyx and
Indymedia were not chilled.  Calyx was able to turn over
all of the information it had - the email addresses of
four Indymedia administrators - and avoid being called to
testify before the grand jury.  The Indymedia
administrators, in turn, could rest assured that the
organization's servers contained no further information
for the investigation.

Indymedia adopted its no-logging policy at EFF's advice
after it was targeted several years ago in an FBI
investigation of the anti-FTAA protests in Seattle.
As the organization's FAQ states, Indymedia sites are
spread across many servers, and Indymedia does not log
the identifying Internet Protocol (IP) addresses of
website visitors.  In addition, it offers anonymous and
pseudonymous posting as well as posting associated
with a registered email address, which it does record.

"Anonymity has always been essential to what Indymedia is
trying to do, because we want to empower all citizens to
make their own news and write about what they find to be
important," said Indymedia administrator Brian Szymanski
to Wired News.  "We have whistle blowers, or victims of
government harassment, and sometimes they need to be
protected by anonymity."

For those who offer online services and are concerned
about users' privacy and free speech but haven't yet
adopted similar policies, EFF has prepared a road map -
a set of legal and technical recommendations for
appropriately limiting the computer logs you keep.
Follow the links below to learn more and to read our
white paper outlining "best practices" for OSPs aiming
to safeguard private data and preserve the freedom of
expression online.

EFF white paper: "Best Practices for Online Service
Providers":
<http://www.eff.org/osp/20040819_OSPBestPractices.pdf>

Wired article: "Feds Hunt Source of GOP Data":
<http://www.wired.com/news/print/0,1294,64808,00.html>

For the original version of this piece online:
<http://www.eff.org/deeplinks/archives/001880.php>

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* Maryland E-voting Update - the Good, the Bad, and the
Ugly

A few weeks ago, we reported on a hearing in Schade v.
Maryland State Board of Elections, et al., a court case
that calls into question the legality of paperless
voting machines under Maryland law, which requires paper
ballots.

The bad news is that the judge denied the request that
Maryland voters be given the option to vote on paper
in the upcoming November election.  It's a terrible
decision, and the court had to ignore two esteemed
security experts and embrace some pretty outrageous
falsehoods to do it.  For example, the ruling found
that "all experts agree" that Direct Recording Electronic
(DRE) machines are more secure than paper ballots, even
optical-scan systems; that votes cast on DREs have
been counted "accurately"; and that recounts have
been "perfectly accurate."

"None of these things are true," said EFF Legal Director
Cindy Cohn.  "Expert reports generally indicate that
optical-scan systems are the most secure.  Moreover, as
Michael Wertheimer testified, regardless of what future
systems could do, the current Diebold system gets an 'F'
in security.  As to the assertion that DREs always count
'accurately,' EFF's amicus brief presents more than 20
instances in which, at best, this assertion is open to
serious question.  Finally, the statement that recounts
have been accurate is stunning, given that DREs leave
nothing to recount.  They simply reprint the results
that the machine tabulated in the first instance.
That's not the same thing as a recount under any
reasonable definition of the word."

The good news is that the hearing has pushed the state
to adopt, and the court to endorse, a number of
common-sense security measures, including "parallel"
testing on election day, encrypting information as
it passes between machines, changing passwords (they
were previously all the same!), and taking steps to
ensure the external security of the machines.

"These measures should have been adopted a long time ago,
but it appears that pressure from the court case led
the state finally to do so," said Cohn.  "Now voting
officials will have to face the judge if they fail to
implement them."

The case is on the fast-track for appeal, with an
emergency hearing scheduled before the Maryland Supreme
Court for Tuesday, September 14.  In the appeal, EFF
will once again serve as primary author of an amicus
brief to support security in electronic voting, joined
by Common Cause, People for the American Way,
VerifiedVoting.org, the Center for Constitutional
Rights, American Families United, and VotersUnite!

For more about e-voting and the Maryland case:
<http://www.eff.org/Activism/E-voting/>

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* Only 54 Days Until the Election - Register to Vote Now!

The election is only 54 days away.  Are you sure your name
appears on the voter rolls?

Every vote will be vital in determining the course that
America takes in the future, but you can't vote if
you're not properly registered.  This year, millions of
new voters are being registered nationwide.  EFF has
partnered with Working Assets to register voters for the
upcoming election.  Don't wait until the last minute to
register - if you do, you may arrive at the poll on
election day only to find that your name is not on the
list!  Click here to register to vote or update your
registration now:

<http://www.yourvotematters.org/EFF>

It's easy, it's quick, and when you register to vote or
update your registration, Working Assets will make a
donation to EFF.  Thank you for all of your support and
for taking a moment to help increase civic
participation!

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* miniLinks
miniLinks features noteworthy news items from around the
Internet.

~ Republicans Oppose National ID
From the official 2004 Republican Party Platform: "As
tagging and tracking citizens is inconsistent with
American freedom, we oppose the creation of a national
identification card or system."  We couldn't possibly
agree more:
<http://www.cbsnews.com/htdocs/pdf/GOP2004platform.pdf>

~ Canada Considers Broadcast Flag
Michael Geist gives his perspective on the move:
<http://www.eff.org/cgi/tiny?urlID=242>
(Toronto Star)

~ Save Betamax by Calling Out the Induce Act
The folks at Downhill Battle want you to call Congress
on the harm the Induce Act would cause to innovation,
and they've made it easy with the "Save Betamax"
campaign:
<http://www.savebetamax.org/>

~ Gag-Happy Government Wants ACLU to Shut Up
The USA PATRIOT Act allows the government to issue
"National Security Letters," which carry a gag-order
for the recipient that prevents the disclosure that
one has been received.  But the DoJ has interpreted
this to mean that the ACLU, in its work to examine
how the letters are being (ab)used, can't publicly
quote from published Supreme Court opinions or refer
even vaguely to the circumstances of its case:
<http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=16275&c=262>

~ ...And Arguments About Secret Law Kept Secret
EFF co-founder John Gilmore is suing the government
over secret laws governing airport searches and ID
requirements, but the Department of Justice wants to
keep the everyone - even Gilmore's lawyers - in the
dark about what the rules actually say:
<http://www.cnn.com/2004/LAW/09/06/airline.id.ap/index.html>

~ "Lion" Bites Mouse
Disney lost the latest scuffle in a South African
lawsuit charging that the entertainment giant is
the main offender in exploiting "The Lion Sleeps
Tonight," a song that was evidently copied note-for-note
from a deceased migrant farm worker.  Piracy indeed,
Mr. Eisner:
<http://www.eff.org/cgi/tiny?urlID=243>
(Herald Sun)

~ State of California Sues Diebold for False Claims
The state is joining a civil suit filed by two
voting rights activists:
<http://www.eff.org/cgi/tiny?urlID=244>
(Tri-Valley Herald)

~ More Independent Software Turns iTunes into P2P
Playground
MyTunes Redux allows iTunes users to share song files
with multiple computers, not just stream music:
<http://news.com.com/2100-1027_3-5349272.html>

~ Court to Hear First "Warspamming" Case
That long, ugly word means "finding an open wireless
network and sending spam therefrom":
<http://uk.news.yahoo.com/040907/152/f22q8.html>

~ Why Grokster Rocks
The executive director of Harvard Law School's Berkman
Center for Internet & Society explains why the
Grokster opinion makes sense for the future of
innovation:
<http://www.eff.org/cgi/tiny?urlID=245>
(Boston Globe; registration unfortunately required.)

~ Patents Are Killing Software Innovation
So Martin Brampton argues in this fine op-ed:
<http://zdnet.com.com/2100-1104_2-5342291.html>

~ Netflix to Download Movies to Your TiVo
We're pleasantly surprised that Netflix was able to get
licensing permission for this neat little trick:
<http://www.msnbc.msn.com/id/5915470/site/newsweek/>

~ One Music Store to Rule Them All
Gates & Co. last week revealed MSN Music - the latest way
to buy music that won't play on your iPod:
<http://www.eff.org/cgi/tiny?urlID=246>
(Salon; registration or ad-view unfortunately required.)

~ ...Unless You Get Back to Basics
Say, by burning your purchases to CD, then ripping them
to an open format like MP3:
<http://www.eff.org/deeplinks/archives/001881.php>

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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 http://www.eff.org/

Editor:
Donna Wentworth, Web Writer/Activist
 donna () eff org

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