EFFector 18.26: FBI's NSLs Threaten Online Speech and Privacy

[David Farber <dave () farber net>]

Begin forwarded message:

From: EFFector list <editor () eff org>
Date: August 4, 2005 9:52:51 PM EDT
To: farber () cis upenn edu
Subject: EFFector 18.26: FBI's NSLs Threaten Online Speech and Privacy
Reply-To: EFFector list <editor () eff org>


EFFector  Vol. 18, No. 26  August 4, 2005  donna () eff org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 341st Issue of EFFector:

 * FBI's "National Security Letters" Threaten Online Speech
   and Privacy
 * Secret Documents About Indymedia Server Disappearance
   Unsealed
 * Blogger Critic Has the Right to Anonymity
 * Exporting Bad Ideas: House Approves CAFTA
 * Defcon - A Slam "Dunk" for Freedom
 * miniLinks (10): Granick on "Ciscogate"
 * Administrivia

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

Help EFF protect privacy, innovation, and free speech.
Make a donation and become a member today!
 <http://secure.eff.org/support>

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

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* FBI's "National Security Letters" Threaten Online Speech
and Privacy

EFF Urges Appeals Court to Find Secret Subpoena Power
Unconstitutional

New York - EFF, joined by several civil liberties organizations
and online service providers, filed a friend-of-the-court
brief this week in the case of Doe v. Gonzales arguing that
National Security Letters (NSLs) are unconstitutional.
NSLs are secret subpoenas for communications logs, issued
directly by the FBI without any judicial oversight.  These
secret subpoenas allow the FBI to demand that online
service providers produce records of where their customers
go on the Web, as well as what they read and with whom
they exchange email.  The FBI can easily issue NSLs for
information about people who haven't committed any crimes.

A federal district court has already found NSLs unconstitutional,
and the government is now appealing the case.  In its brief
to the Second Circuit Court of Appeals, EFF argues that
these secret subpoenas imperil free speech by allowing the
FBI to track people's online activities.  In addition, NSLs
violate the First and Fourth Amendment rights of the
service providers who receive the secret government
demands.  EFF and fellow amici argue that NSLs for Internet
logs should be subject to the same strict judicial scrutiny
applied to other subpoenas that may reveal information
about the identities of anonymous speakers - or their
private reading habits and personal associations.

Yet NSLs are practically immune to judicial review.  They
are accompanied by gag orders that allow no exception for
talking to lawyers and provide no effective opportunity
for the recipients to challenge them in court.  This secret
subpoena authority, which was expanded by the USA PATRIOT
Act, could be applied to nearly any online service
provider for practically any type of record, without
a court ever knowing.

"The Constitution does not allow the FBI to secretly
demand logs about Internet users' web browsing and email
history based on vague claims of national security,"
said Kevin Bankston, EFF attorney and Equal Justice
Works/Bruce J. Ennis Fellow.  "The district court's
decision that National Security Letters are
unconstitutional should have been a wake-up call to
the House of Representatives, which just voted to
renew the PATRIOT Act without adding new checks
against abuse."

Although such protections are lacking in the PATRIOT
renewal bill that the House of Representatives recently
passed, they are included in the Senate bill.  It is not
yet clear whether those protections will be included
in the final bill when it reaches the President's desk.

EFF was joined on the brief by the Center for Constitutional
Rights, the Center for Democracy and Technology, the
Online Policy Group, Salon Media Group, Inc., Six
Apart, Ltd., the US Internet Industry Association,
and ZipLip, Inc.

For this release:
<http://www.eff.org/news/archives/2005_08.php#003872>

For the amicus brief:
<http://www.eff.org/patriot/NSL_EFF_brief.pdf>

More about NSLs:
<http://www.eff.org/patriot/sunset/505.php>

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* Secret Documents About Indymedia Server Disappearance
Unsealed

Government Order Demanded Only Logs; Web Host Rackspace
Handed Over Server

San Antonio, TX - EFF last week won a motion allowing it to
access sealed court documents about the mysterious
disappearance of two web servers used to host news websites
for Indymedia, a global collective of Independent Media
Centers (IMCs) and thousands of journalists.  After six
months of secret litigation, EFF obtained a copy of the
federal court order that resulted in the October 2004
handover of copies of Indymedia servers to the government
by Indymedia's web host.  That handover resulted in the
silencing of more than 20 news websites and radio feeds
for nearly a week.

However, the unsealed documents reveal that the government
never officially demanded the computer servers - the
subpoena to Rackspace only requested server log files.
This contradicts previous statements by the web host that
it took the servers offline because the government had
demanded the hardware.  The documents also contradict
Rackspace's claim that it had been ordered by the court
not to discuss publicly the government's demand.  It
cannot be determined from the unsealed documents
whether or not the government informally pressured
Rackspace to turn over the servers.

By giving the government more data than it requested, the
company not only violated the privacy of Indymedia
journalists whose information was housed on the servers,
but also undermined the free flow of information by taking
Indymedia's websites offline.  Moreover, the logs that
the government requested didn't exist, so Rackspace should
never have given the government anything at all.

"When Rackspace received a government demand to examine
logs that didn't exist, it had a responsibility to the
customer and to the principles of freedom of the press
to fight the order and resolve this without taking more
than 20 news sites off the Internet," said EFF Staff
Attorney Kurt Opsahl.

The court order served on San Antonio-based Rackspace
Managed Hosting was issued based on a treaty request
from the Italian government as part of an ongoing
criminal investigation in that country.

EFF was assisted in this case by James A. Hemphill and
W. Reid Whittliff with Graves, Dougherty, Hearon & Moody
in Austin, Texas.

For the full press release:
<http://www.eff.org/news/archives/2005_08.php#003862>

The Register: "US Court Files Reveal Italian Link to
Indymedia Server Grab":
<http://www.theregister.co.uk/2005/08/03/indymedia_texas_docs_unsealed/>

More about the Indymedia server takedown:
<http://www.eff.org/Censorship/Indymedia/>

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* Blogger Critic Has the Right to Anonymity

EFF this week joined a coalition of national public-interest
groups in an effort to shield the identity of a blogger
who posted allegedly defamatory statements about a local
town council member in Smyrna, Delaware.

In a joint friend-of-the-court brief filed with the Delaware
Supreme Court on Monday, EFF, Public Citizen, the ACLU, and
the ACLU's Delaware affiliate argued that unmasking the blogger,
identified as "Proud Citizen" and "John Doe # 1," would
violate the online critic's First Amendment rights.  The
anonymous blogger is the target of a libel lawsuit by Smyrna
City Councilman Patrick Cahill.

"The blog postings at issue here contained standard criticism
of a public official's job performance - not defamatory
statements - and it was well within John Doe No. 1's right
to make the comments," said Public Citizen attorney Paul Levy.
"We urge the court to rule that this Internet critic has a
First Amendment right to speak anonymously on the Internet."

Public Citizen press release:
<http://www.citizen.org/pressroom/release.cfm?ID=2010>

EFF's Legal Guide for Bloggers - FAQ on Defamation:
<http://www.eff.org/bloggers/lg/faq-defamation.php>

More about bloggers' rights:
<http://www.eff.org/bloggers/>

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* Exporting Bad Ideas: House Approves CAFTA

Last week the US continued to bully the world into adopting
the very worst aspects of American intellectual property and
Internet law, with the House of Representatives approving
the US - Dominican Republic - Central America Free Trade
Agreement (a.k.a. "CAFTA").  The agreement obligates
countries to enact dangerous policies that go far beyond
their obligations under international agreements, including
WTO-TRIPS.

In a move endorsed by Hollywood and special-interest software
lobbyists, the treaty requires countries to enact laws
modeled after the Digital Millennium Copyright Act (DMCA).
That means that the signatories will suffer the same harm
to innovation and consumer rights that the US has suffered.
(See "Unintended Consequences: Five Years Under the DMCA"
<http://www.eff.org/IP/DMCA/unintended_consequences.php> .)

CAFTA will also require signatories to extend copyright
protection to 70 years after the death of the author,
permit software patents, and eliminate anonymity for
website domain names owners.  The last is especially
pernicious: in countries with histories of repression,
taking away online speakers' anonymity means people
with pro-democracy or anti-corruption messages will be
vulnerable.

It's clear that a treaty like this isn't in best interests
of Latin American countries, but negotiators don't have
much of a choice.  The countries desperately need the
increased access to US markets that the treaty promises.
As it has repeatedly done before, the US is leveraging
its disproportionate bargaining power in this regional
agreement to force bad policies down other countries'
throats.

CAFTA will hurt US citizens, too.  Now US technology
manufacturers have another set of countries in which
they are forced to beg copyright holders' permission to
innovate.

El Salvador, Guatemala, and Honduras have approved the
agreement, while Nicaragua, Costa Rica, and the Dominican
Republic have yet to vote on it.  EFF continues
to offer assistance to countries around the world to
evaluate and resist the US export of these kinds of
harmful laws.

For this piece online:
<http://www.eff.org/deeplinks/archives/003874.php#003874>

CNET: "Copyright Lobbyists Strike Again":
<http://news.com.com/2010-1071_3-5811025.html>

More about free trade agreements:
<http://www.eff.org/IP/FTAA/>

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* Defcon - A Slam "Dunk" for Freedom

A big THANK YOU to the folks at Defcon and everyone who
participated last week in the dunk tank, parties, and
other shenanigans that raised $13,000 for EFF!  In
addition, huge thanks to Landon Fuller and the Bacula
Project for helping to raise money for EFF:
<http://article.gmane.org/gmane.comp.sysutils.backup.bacula.announce/63>

Grassroots fundraising efforts like these give EFF the
energy (and funds!) to keep on fighting the good fight
- defending free speech, fair use, innovation, and
privacy on the electronic frontier.  By supporting EFF,
you help carry the banner to protect digital civil
liberties.

If you're coming to LinuxWorld next week, we encourage
you to stop by the EFF booth and give till you feel good
- every penny goes toward keeping the Internet safe and
free!

LinuxWorld Conference & Expo:
<http://www.linuxworldexpo.com/live/12/>

Donate to EFF and become a member today!
<http://secure.eff.org/support>

Post script: Speaking of banners, we appear to be missing
the very large EFF banner that was at Defcon (see
<http://flickr.com/photos/wseltzer/29426343/> ).
If you have the banner, we would appreciate its return
- or, at least, photos of its travels!

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

~ Granick on "Ciscogate"
The talented criminal law attorney who has been helping
Michael Lynn defend himself from legal threats for sharing
information about Cisco's security problems provides
an eye-opening look at the range of legal tools that can be
leveraged to silence people:
<http://www.eff.org/cgi/tiny?urlID=527>
(The Shout)

~ Risks Digest Celebrates 20 Years of Publication
From the Strategic Defense Initiative to RFIDs in social
security cards, Peter Neumann's newsletter keeps spotting
the flaws:
<http://catless.ncl.ac.uk/Risks/23.96.html>

~ Coloc-lateral damage
When ISP Telus blocked its customers from viewing the website
of the labor union it was fighting, it also blocked 766
other sites using the same IP address - including a
breast cancer charity:
<http://www.opennetinitiative.net/bulletins/010/>

~ A Big List Against a Bigger List
Activists are gathering names in an EU-wide petition
launched this week to protest planned data-retention
regulations:
<http://www.dataretentionisnosolution.com/>

~ Copycrime
...while the European Parliament considers *criminal*
prosecution for copyright infringement.  Is it Europe's
turn for crazy laws this week?
<http://www.groklaw.net/article.php?story=20050801162431352>

~ Battle Brewing Over Network Neutrality
Susan Crawford provides a short history of "acromonious
acronyms" in the copyfight - bad laws like the notorious
"Hollings bill" (or CBDTPA) - and proposes adding another
to the list: the "Broadband Investment and Consumer
Choice Act" (or BICCA):
<http://scrawford.blogware.com/blog/_archives/2005/7/29/1089499.html>

~ Skilled in the Art of Push Polls
Screenshots of a curious poll by Microsoft regarding
pursuing Red Hat for alleged patent violations:
<http://www.mit.edu/~mherdeg/pushpoll/>

~ By Reading This License You Agree to Get Scared
Sun engineer reads his own company's license terms, gets
freaked enough to persuade Sun lawyers to drop it:
<http://weblogs.java.net/blog/timboudreau/archive/2005/07/ 
when_engineers.html>

~ Solution to Government Inefficiency: More Red Tape
Senator Ensign introduces a bill that would make municipal
broadband more, not less, complicated to get right:
<http://www.ipdemocracy.com/archives/2005/07/31/index.php#000270>

~ Why Bill Gates Wants 3,000 New Patents
Historian Randal Stross on Microsoft's fresh hunger for
patents - IP protection "so powerful that Thomas Jefferson
believed that it should be granted in only a few select
cases":
<http://www.nytimes.com/2005/07/31/business/yourmoney/31digi.html>
(Registration unfortunately required.)

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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+1 415 436 9993 (fax)
 http://www.eff.org/

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

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