EFFector Vol. 20, No. 4 January 23, 2007 editor@eff.org
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
In the 410th Issue of EFFector:
- Action Alert - Tell Congress to Investigate the NSA Spying Program!
- Update on Eli Lilly Zyprexa Documents Fight
- Signs of Music Download DRM Fading
- Major Labels Block Zune Sharing of Certain Songs
- Newspaper Publisher Tries to Thwart First Amendment
- Time Running Out -- Nominate a Net Pioneer Now for EFF's 2007 Awards!
- miniLinks (8): Andy Griffith Stands Up to Warrantless Wiretapping
- *Administrivia
Make a donation and become an EFF member today!
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effector: n, Computer Sci. A device for producing a desired
change.
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* Action Alert - Tell Congress to Investigate the NSA
Spying Program!
Over five years since it first began, the NSA's massive
domestic spying program remains shrouded in secrecy. Last
week, the Bush Administration announced that it has let the
shadowy FISA court review the program, but that's not
enough -- the President must abide by the law and answer to
the traditional court system, Congress, and the American
public. Take action and demand immediate Congressional
investigations:
http://action.eff.org/fisa
Three federal courts have already rejected the government's
bogus arguments and allowed cases to go forward regarding
the secret surveillance. With its back against the wall,
the Administration has finally conceded that judicial
review should be involved at some level.
That's welcome news, but the President is still trying to
dodge meaningful oversight. While claiming that the secret
FISA court orders legalize the program, the Administration
has refused to let anyone else see the orders and confirm
key details about what they permit. EFF is skeptical that
they actually satisfy the strict requirements of current
statutes or the Fourth Amendment, considering the broad
program of dragnet surveillance alleged in our case against
AT&T for its role in the program.
Congress must do its job and help uncover the truth about
the program. Take action now to protect the checks and
balances that define our democracy:
http://action.eff.org/fisa
Learn more about EFF's case against AT&T:
http://www.eff.org/legal/cases/att
Read the Justice Department's letter to Senators Leahy and
Specter:
http://action.eff.org/site/DocServer/justicedept_FISA_letter.pdf?docID=441
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* Update on Eli Lilly Zyprexa Documents Fight
EFF was back in court January 16-17 defending the right of
an anonymous wiki contributor to post links to important
internal Eli Lilly documents about its biggest-selling
drug, Zyprexa. After hearing two days of testimony from
those involved (and not involved) with the disclosure of
the Lilly documents, the judge has ordered additional
briefs and promised a decision sometime in early February.
Unfortunately, he also extended his January 4 injunction
that bars anyone from posting the documents or information
that would "facilitate the dissemination of the documents"
(presumably, including links) to zyprexa.pbwiki.com until
he is able to issue his ruling.
The good news is that the documents continue to be readily
available on the Internet. (One law professor said he was
able to find and download them in 19 minutes.)
The bad news is that the judge's order constitutes a prior
restraint on free speech -- the court's injunction
prohibits the whole world from publishing the documents on
zyprexa.pbwiki.com. It's hard not to compare this outcome
with the Pentagon Papers case, where the Supreme Court
threw out even a temporary injunction against publication
of stolen Pentagon documents in the New York Times and
Washington Post. (It's also reminiscent of Proctor & Gamble
v. Bankers Trust, where the court threw out a prior
restraint against Business Week over documents leaked from
a lawsuit.)
But based on the evidence introduced in court, it appears
clearer than ever that Eli Lilly will not be able to
justify any ongoing restriction on publication of these
documents by those who were not involved in the initial
leak. So we are looking forward to Judge Weinstein's
ultimate ruling.
For this post and related links:
http://www.eff.org/deeplinks/archives/005081.php
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* Signs of Music Download DRM Fading
Apparently, this year's MIDEM conference, the music
industry's international trade show, took place in a
parallel universe where the major record labels may be
willing to embrace the open MP3 format. And this parallel
universe may be coming to an online store near you in 2007.
According to the International Herald Tribune, "Executives
of several technology companies ... said ... that a move
toward the sale of unrestricted digital files in the MP3
format from at least one of the four major record companies
could come within months." While the RIAA's Mitch Bainwol
pretended that fully interoperable digital rights
management (DRM) could exist, the article recounts many
examples that demonstrate "a new appreciation in the
[music] industry for unrestricted copies, which could be
sold as singles or through subscription services or made
freely available on advertising-supporting Internet sites."
The major labels should have gotten this clue long, long
ago. Unfortunately, it remains clear that the major record
labels aren't ready to eschew DRM entirely. They're once
again in Congress pushing for a backdoor DRM mandate for
satellite and digital radio as well as webcasting.
The labels may finally be hearing your disdain for DRM at
online music stores -- make your voice heard in Congress
now by opposing mandatory radio DRM:
http://action.eff.org/site/Advocacy?id=221
For this post and related links:
http://www.eff.org/deeplinks/archives/005084.php
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* Major Labels Block Zune Sharing of Certain Songs
DRM may be fading for music downloads, but, in the
meantime, it's still giving music fans a raw deal.
Microsoft is trying to set its Zune media player apart from
the iPod by showcasing its remarkably limited sharing
feature. Many reviews have harped on how shared songs can
only be played three times over three days. But the
restrictions are actually even worse -- if you read the
fine print, you'll find that "The Zune to Zune sharing
feature may not be available for all audio files on your
device."
In fact, Engadget reports that certain songs bought at
Microsoft's own store cannot take advantage of Zune's
sharing. All the songs come wrapped in DRM, and apparently
Microsoft doesn't tell customers at the time of purchase
whether songs can be shared or not.
The Zunerama blog tested the sharing feature on the top 50
songs sold at the Zune Marketplace, and 29 songs produced
this message: "Can't send some songs because of rights
restrictions."
As usual, when you buy DRMed media, you may be getting much
less than the online music service has promised.
For this post and related links:
http://www.eff.org/deeplinks/archives/005083.php
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* Newspaper Publisher Tries to Thwart First Amendment
The Santa Barbara News-Press needs a lesson in the First
Amendment. Insisting that an anonymous comment posted for a
few hours on a news blog skewed a labor unionization vote,
the publisher of the newspaper is demanding that Google
disclose the blogger's account information.
It all started last September, three months after several
editors walked off the job amid allegations that News-Press
owner and co-publisher Wendy McCaw had improperly
interfered in editorial decisions. The remaining employees
were struggling to form a union to negotiate with McCaw,
and McCaw did not take kindly to the unionization effort or
even commentary about it. In fact, she has sued two
newspapers based on their coverage of the labor dispute and
threatened defamation suits against individual citizens who
posted pro-union signs in their windows. The legal campaign
has made headlines around the country.
Enter pseudonymous blogger Sara de la Guerra. Sara reports
and comments on current events in Santa Barbara and has
been critical of McCaw's anti-union tactics. In early
September, a third party submitted a comment advocating
various acts of cybersabotage against News-Press
management. The comment was taken down within hours, but
News-Press later issued a press release quoting and
complaining about the comment.
When the employees then voted to form a union, News-Press
filed objections with the National Labor Relations Board,
arguing that the comment had influenced the election. Three
months later, just a few days before the hearing on the
objections, News-Press issued a subpoena to Google seeking
information relating to Sara's account.
News-Press has apparently forgotten a basic principle of
the journalistic profession--respect for the First
Amendment, which protects the right to anonymous speech.
Court after court has recognized that discovery requests
that seek to pierce the anonymity of online speakers must
be carefully scrutinized. Moreover, courts have recognized
the need for a particularly high level of protection when
the discovery request seeks information about a nonparty.
Such protection is especially important here, given McCaw's
proclivity for retaliating against critics. Sara's
important but fragile anonymity interests must be shielded
unless News-Press can show that its claims are viable and
that the requested evidence is necessary to advance those
claims.
And therein lies the rub: The hearing to which the
information would be relevant was held two weeks ago, with
no reference to the subpoena. Thus, even assuming the
information was relevant to some claim, the need for that
information has passed.
EFF has written a letter to the NLRB judge explaining the
free speech interests at stake and asking him to confirm
the subpoena is moot. Here's hoping that the judge will
bring a quick end to this dangerous skirmish in the News-
Press' anti-union campaign.
For this post and related links:
http://www.eff.org/deeplinks/archives/005079.php
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* Time Running Out -- Nominate a Net Pioneer Now for EFF's
2007 Awards!
EFF established the Pioneer Awards to recognize leaders on
the electronic frontier who are extending freedom and
innovation in the realm of information technology. This is
your opportunity to nominate a deserving individual or
group to receive a Pioneer Award for 2007.
The International Pioneer Awards nominations are open both
to individuals and organizations from any country.
Nominations are reviewed by a panel of judges chosen for
their knowledge of the technical, legal, and social issues
associated with information technology.
How to Nominate Someone for a 2007 Pioneer Award:
You may send as many nominations as you wish, but please
use one email per nomination. Please submit your entries
via email to pioneer@eff.org. We will now accept
nominations until January 30, 2007.
Simply tell us:
1. The name of the nominee,
2. The phone number or email address or website by which
the nominee can be reached, and, most importantly,
3. Why you feel the nominee deserves the award.
Nominee Criteria:
There are no specific categories for the EFF Pioneer
Awards, but the following guidelines apply:
1. The nominees must have contributed substantially to the
health, growth, accessibility, or freedom of computer-based
communications.
2. To be valid, all nominations must contain your reason,
however brief, for nominating the individual or
organization and a means of contacting the nominee. In
addition, while anonymous nominations will be accepted,
ideally we'd like to contact the nominating parties in case
we need further information.
3. The contribution may be technical, social, economic, or
cultural.
4. Nominations may be of individuals, systems, or
organizations in the private or public sectors.
5. Nominations are open to all (other than current members
of EFF's staff and board or this year's award judges), and
you may nominate more than one recipient. You may also
nominate yourself or your organization.
6. Persons or representatives of organizations receiving an
EFF Pioneer Award will be invited to attend the ceremony at
EFF's expense.
More on the EFF Pioneer Awards:
http://www.eff.org/awards/pioneer/
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* miniLinks
The week's noteworthy news, compressed.
~ Andy Griffith Stands Up to Warrantless Wiretapping
Mayberry's privacy rights more secure than the modern
United States.
http://www.youtube.com/watch?v=4CvoC551i2E
~ How Do New NSA Spy Warrants Work? One Expert Speculates
Jim Dempsey tries to work out what it might mean.
http://blog.wired.com/27bstroke6/2007/01/how_do_innovati.html
~ Your Privacy Law Role-Call
All the new privacy bills on their way to Congress, as
collected by PogoWasRight.
http://www.pogowasright.org/staticpages/index.php?page=20061217075935498
~ Brewster Kahle's Orphan Works Case Denied
Professor Chris Sprigman offers legal analysis.
http://www.publicknowledge.org/node/799
~ Music Industry Wants to Sue Euro ISPs
Litigation against third-parties expected "in weeks rather
than months."
http://news.independent.co.uk/business/news/article2162919.ece
~ VirginMega Adopts DRM-Free MP3 on its Music Store
France is first country in which major store switches from
WMA to MP3.
http://www.djing.com/news/1926/virginmega-adopts-drm-free-mp3-on-its-music-store/
~ German, French Orgs Unite Against DRM
Consumer groups claim iTunes' FairPlay is anti-competitive.
http://www.macleans.ca/culture/news/shownews.jsp?content=e012247A
~ eMusic Surpasses 250,000 Subscribers...
...while unencumbered music sales go up and up.
http://playlistmag.com/news/2007/01/22/emusic/index.php
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* Administrivia
EFFector is published by:
The Electronic Frontier Foundation
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Editor:
Derek Slater, Activist
derek@eff.org
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