EFFector Vol. 20, No. 23  June 13, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 427th Issue of EFFector:

• Action Alert - Stop the SPY Act!
• Action Alert - Dear WIPO: Don't Break Internet Broadcasting
• Secret Surveillance Evidence Unsealed in AT&T Spying Case
• Representatives Threaten to Subpoena NSA Documents
• Spoon-Bending 'Paranormalist' Ramps Up Illegal Attacks on Online Critic
• 20th Century Fox v. Cablevision: Remote Computing Under Siege
• A Better Way Forward on University P2P
• Update on Immigration Bill: Attempt to Expand National ID Nightmare Stalled
• An Update on the Innards of iTunes Plus Files
• ATI Downgrades Its Tuners and Its Customers
• miniLinks (11): EFF Privacy Advocate Sited in Google Street View
• 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 - Stop the SPY Act!

The SPY Act is supposed to help stop spyware, deceptive 
adware, and other malicious software, but it is unlikely to 
do any good and could actually make things worse. If 
enacted, it would block lawsuits similar to the one EFF 
brought against Sony-BMG for infecting customers' computers 
with privacy-invasive copy protection. Don't let badware 
makers off the hook -- tell Congress to go back to the 
drawing board and draft a more sensible law:
http://action.eff.org/site/Advocacy?id=301

Both the Federal Trade Commission and Department of Justice 
have said that they already have the authority they need to 
go after badware vendors, and this bill doesn't add any 
funds or significant tools for federal enforcement. 

At the same time, the bill would stunt states' enforcement, 
preempting most of their stricter badware laws. For acts 
covered by the bill, state statutes (including consumer 
protection laws) wouldn't be available to consumers 
themselves as grounds for a lawsuit. And this bill would 
leave enforcement exclusively in the hands of federal 
bureaucrats, specifically barring private citizens (and 
organizations like EFF working on their behalf) from 
fighting back in the courts. 

This is a terrible move. If Congress is serious about 
enacting tough laws against deceptive and malicious 
programs, it should create incentives that would 
*encourage* private citizens to pursue the bad guys. The 
federal government and state attorneys general can't 
possibly take on the entire job alone. 

Congress should also focus on protecting anti-badware tool 
companies from harassing lawsuits brought by spyware and 
adware vendors. After all, badware removal programs are 
doing far more to protect your computer than the federal 
government ever will. Unfortunately, this bill does nothing 
to help sustain these helpful tools.

The SPY Act has already passed the House, but with your 
help we can make the Senate understand that they need to do 
better:
http://action.eff.org/site/Advocacy?id=301

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* Dear WIPO: Don't Break Internet Broadcasting

In 2006, the World Intellectual Property Organization 
(WIPO) was inches away from finalizing a treaty that would 
have crippled Internet broadcasting. Called the WIPO 
Broadcasting Treaty, it gave traditional broadcasters and 
cablecasters new copyright-like rights over their signals. 
Under the Treaty, video hosting websites like YouTube could 
suddenly face new legal liability and innovative products 
like the SlingBox could face crippling lawsuits.

In an astounding turnaround, WIPO Member States told the 
WIPO Secretariat to rewrite the Treaty and make it focus 
more narrowly on broadcast signal protection. Thanks to the 
efforts of technology companies, independent podcasters and 
activists, the delegates agreed that the treaty shouldn't 
be premised on creating new rights. Instead, any new treaty 
should be based simply on protecting against theft of 
broadcast signals, which transmit radio and television 
content over airwaves. This was a huge victory for 
podcasters, their fans, and other innovative businesses 
that are pushing audio and video on the web.

But in May of this year, WIPO released a "new" draft of the 
treaty that looks disconcertingly like the old one. Sure, 
there was some tinkering around the edges, but the Treaty 
still gives broadcasters and cablecasters new exclusive 
rights, and it still expands broadcast signal protection to 
include transmission over the Internet. Worse, it includes 
an expanded technological protection measure provision that 
opens the door to a U.S. Broadcast Flag-style technology 
mandate law, which would give Hollywood the power to 
control how you receive and use content.

Don't let WIPO get away with this shell game. It promised 
to draft a narrow treaty, and it should be held to that 
promise. Sign our petition today and help stop WIPO's 
Internet-breaking treaty!

More info:
http://www.dearwipo.com/

Sign the Petition:
http://www.dearwipo.com/petition

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* Secret Surveillance Evidence Unsealed in AT&T Spying Case

Whistleblower Declaration and Other Key Documents Released 
to Public

San Francisco - More documents detailing secret government 
surveillance of AT&T's Internet traffic have been released 
to the public as part of the Electronic Frontier 
Foundation's (EFF's) class-action lawsuit against the 
telecom giant.

Some of the unsealed information was previously made public 
in redacted form. But after negotiations with AT&T, EFF has 
filed newly unredacted documents describing a secret, 
secure room in AT&T's facilities that gave the National 
Security Agency (NSA) direct access to customers' emails 
and other Internet communications. These include several 
internal AT&T documents that have long been available on 
media websites, EFF's legal arguments to the 9th Circuit, 
and the full declarations of whistleblower Mark Klein and 
of J. Scott Marcus, the former Senior Advisor for Internet 
Technology to the Federal Communications Commission, who 
bolsters and explains EFF's evidence.

"This is critical evidence supporting our claim that AT&T 
is cooperating with the NSA in the illegal dragnet 
surveillance of millions of ordinary Americans," said EFF 
Legal Director Cindy Cohn. "This surveillance is under 
debate in Congress and across the nation, as well as in the 
courts. The public has a right to see these important 
documents, the declarations from our witnesses, and our 
legal arguments, and we are very pleased to release them."

EFF filed the class-action suit against AT&T last year, 
accusing the telecom giant of illegally assisting in the 
NSA's spying on millions of ordinary Americans. The lower 
court allowed the case to proceed, and the government has 
now asked the 9th U.S. Circuit Court of Appeals to dismiss 
the case, claiming that the lawsuit could expose state 
secrets. EFF's newly released brief in response outlines 
how the case should go forward respecting both liberty and 
security.

"The District Court rejected the government's attempt to 
sweep this case under the rug," said EFF Senior Staff 
Attorney Kurt Opsahl. "This country has a long tradition of 
open court proceedings, and we're pleased that as we 
present our case to the Court of Appeals, the millions of 
affected AT&T customers will be able to see our arguments 
and evidence and judge for themselves."

Oral arguments in the 9th Circuit appeal are set for the 
week of August 13.

For the unredacted Klein declaration:
http://eff.org/legal/cases/att/SER_klein_decl.pdf

For the internal documents:
http://eff.org/legal/cases/att/SER_klein_exhibits.pdf

For the unredacted Marcus declaration:
http://eff.org/legal/cases/att/SER_marcus_decl.pdf

For EFF's 9th Circuit brief:
http://eff.org/legal/cases/att/9thanswerbrief.pdf

For more on the class-action lawsuit against AT&T:
http://www.eff.org/legal/cases/att/

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* Representatives Threaten to Subpoena NSA Documents

Last week, Congressional representatives threatened to 
subpoena information regarding the NSA's illegal domestic 
spying program. The Administration has repeatedly refused 
to comply with requests for documents including the 
President's orders authorizing the program and legal 
opinions related to it. It's long past time that Congress 
issued subpoenas and forced the Administration's hand.

EFF is also working through the courts to uncover the truth 
about the secret program and stop the illegal spying. 
Alongside our case against AT&T, we separately sued the 
Department of Justice under the Freedom of Information Act 
demanding records about secret new court orders that the 
President announced in January. EFF filed a brief in the 
case last week:
http://eff.org/flag/EFF_sj_opp.pdf

Read the New York Times article:
http://www.nytimes.com/2007/06/08/washington/08nsa.html?ei=5090&en=577ed941b46acf04&ex=1338955200&adxnnl=1&partner=rssuserland

For this post and related links:
http://www.eff.org/deeplinks/archives/005299.php

Tell Congress to investigate the illegal spying:
http://action.eff.org/fisa

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* Spoon-Bending 'Paranormalist' Ramps Up Illegal Attacks on 
Online Critic

More Bogus Copyright Claims in Uri Geller's Frivolous 
Lawsuit

San Francisco - The Electronic Frontier Foundation (EFF) 
urged a judge Monday to dismiss a frivolous lawsuit filed 
by Uri Geller -- the "paranormalist" famous for seemingly 
bending spoons with his mind -- because of its blatant 
attempt to silence critic Brian Sapient with bogus 
copyright claims.

Geller's quest to shut down Sapient's criticism started 
when Sapient uploaded video to YouTube challenging Geller's 
assertions about his mental powers. The 14-minute segment 
came from a NOVA television program, but Geller and his 
corporation Explorologist Ltd. claimed the video infringed 
its own copyrights and had the video removed from YouTube. 
Sapient filed a counter-notice under the Digital Millennium 
Copyright Act (DMCA), had the video restored to YouTube, 
and sued Geller for misrepresentation.

As Sapient was challenging Geller's meritless claims, 
Explorologist filed a separate lawsuit against Sapient. The 
suit includes more bogus charges, with many of them based 
on the assertion that Explorologist has the copyright to 
eight seconds of the introductory footage in the NOVA 
video. EFF's motion to dismiss the case points out the 
numerous holes in this claim, arguing that even if it were 
true, eight seconds is a classic fair use -- especially 
given the critical purposes of the use. The brief also 
argues that Section 230 of the Communications Decency Act 
protects Sapient from infringement claims and other charges 
in Explorologist's complaint, immunizing Sapient as the 
publisher of third-party content.

"Copyright law is meant to protect creative artists, not 
hypersensitive public figures who don't like criticism," 
said EFF Senior Staff Attorney Jason Schultz. "The First 
Amendment does not allow Geller or his corporation to 
silence legitimate discussion of his abilities."

Meanwhile, Sapient's lawsuit against Geller is still 
pending before the Northern District of California. The 
suit asks for damages due to Geller's DMCA violation, a 
declaratory judgment that the NOVA video does not infringe 
Geller's copyrights, and Geller to be restrained from 
bringing any further legal action against Sapient in 
connection to the clip.

For the full motion to dismiss Geller's suit:
http://eff.org/legal/cases/sapient_v_geller/sapient_motiontodismiss.pdf

For more on Sapient v. Geller:
http://eff.org/legal/cases/sapient_v_geller 

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* 20th Century Fox v. Cablevision: Remote Computing Under 
Siege

Most people assume that consumers have a fair use right to 
time shift television to watch at a later time. As a 
result, lots of companies now sell digital video recorders 
(DVRs) that enable you to do this, including TiVo, and it's 
generally accepted that selling DVRs is perfectly legal. 
(Of course, the movie studios still don't like it, as 
demonstrated by their lawsuit against ReplayTV.)

Should the answer be any different if a cable company gives 
a subscriber the ability to record programs to a remote 
server, rather than to a hard drive sitting in the DVR in 
her living room?

Unfortunately, at least one judge in 20th Century Fox v. 
Cablevision seems to think so. If he's right, then lots of 
remote computing services could be in serious legal 
trouble. What if someone uses Amazon's EC2 service to 
commit copyright infringement? Is Amazon automatically 
liable, even if it had no idea? What about Google Apps? 
What about drugstore photo printing kiosks where customers 
can send their photos for automatic printing and pick-up? 
These are all examples of the kinds of tools that consumers 
can now remotely control in order to make copies.

On Friday, EFF joined a number of organizations in filing 
an amicus brief urging the Second Circuit Court of Appeals 
in New York to overturn the lower court ruling. 

Read the amicus brief:
http://www.eff.org/legal/cases/studios_v_cablevision/CDF_et_al_amicus.pdf

For the original version of this post and related links:
http://www.eff.org/deeplinks/archives/005301.php

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* A Better Way Forward on University P2P

With the RIAA suing 400 college students each month (on top 
of its continuing campaign against non-collegiate 
filesharers) and Congress calling for more surveillance of 
university networks, it's high time that the university 
community offer up a sensible alternative to the RIAA's 
dystopian vision. EFF Senior Staff Attorney Fred von 
Lohmann wrote an editorial with a suggestion along those 
lines, published in last Wednesday's Washington Post, which 
echoes a proposal we've long been advocating to solve the 
P2P dilemma more generally:

    "At its heart, this is a fight about money, not about 
morality. We should have the universities collect the cash, 
pay it to the entertainment industry and let the students 
do what they are going to do anyway. In exchange, the 
entertainment industry should call off the lawyers and 
lobbyists, leaving our nation's universities to focus on 
the real challenges facing America's next generation of 
leaders."

Read Fred von Lohmann's entire Washington Post Editorial, 
"Copyright Silliness on Campus":
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/05/AR2007060501761.html

For this post and related links:
http://www.eff.org/deeplinks/archives/005291.php

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* Update on Immigration Bill: Attempt to Expand National ID 
Nightmare Stalled

We've warned that, once the REAL ID Act is implemented, 
uses of the standardized national ID and associated 
databases would inevitably expand far beyond their initial 
purpose and facilitate a wide range of surveillance 
activities. In fact, mission creep is already happening -- 
look no further than the immigration bill that went before 
the Senate last week, which would in effect have required 
individuals to show a REAL ID or a U.S. passport in order 
to get a job.

Fortunately, the immigration bill stalled last week. But, 
we'll keep you up to date if this dangerous REAL ID 
expansion comes back.

REAL ID is fundamentally flawed and needs to be repealed, 
not expanded. Tell Congress to repeal REAL ID now:
http://action.eff.org/site/Advocacy?id=275

To learn more about what's wrong with REAL ID, see our 
issue page:
http://www.eff.org/Privacy/ID/RealID/

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* An Update on the Innards of iTunes Plus Files

Last week, we told you how iTunes Plus files seem to 
exhibit some strange variations above and beyond the widely 
reported purchaser's name and email address/Apple ID. We've 
since had time to look at these files more closely, and we 
can say a little more about what's going on inside.

To learn more about EFF's latest findings:
http://www.eff.org/deeplinks/archives/005292.php

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* ATI Downgrades Its Tuners and Its Customers

There's nothing more fun than upgrading to a new version of 
your software. You get new bugfixes, new features, and, of 
course, the ever-fascinating release notes. That's where 
owners of ATI video cards will learn that the latest update 
to ATI's Catalyst drivers now offers "improved TV quality 
and Broadcast Flag support which enables full US 
terrestrial DTV support".

It's a little unclear from that README whether the new 
support is for a new, hardware revision of ATI's Theater 
650 digital TV tuner, or simply a new software 
implementation of the digital TV copy control for current 
owners of the Theater 650. However you look at it, though, 
"broadcast flag support" is hardly an upgrade.

Read the entire analysis:
http://www.eff.org/deeplinks/archives/005289.php

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* miniLinks
The week's noteworthy news, compressed.

- EFF Privacy Advocate Sited in Google Street View
EFF Staff Attorney Kevin Bankston was caught in Google 
Street View smoking a cigarette.
http://blog.wired.com/27bstroke6/2007/06/eff_privacy_adv.html

- Beware of That Man Between You and Your Google Desktop
Google Desktop's integration of web and desktop could 
create security problems.
http://blogs.zdnet.com/security/?p=253

- A Race to the Bottom: Privacy Ranking of Internet Service 
Companies
Privacy International ranks Google, Microsoft, and other 
major Internet companies on privacy concerns.
http://www.privacyinternational.org/article.shtml?cmd%5B347%5D=x-347-553961

- Lawyers Dig into FasTrak Data
FasTrak data can be subpoenaed and used in court for any 
reason.
http://www.insidebayarea.com/ci_6062226?source=rss_viewed

- A Patent Lie
In a NY Times opinion piece, Timothy Lee asks whether 
patent law is stifling innovation.
http://www.nytimes.com/2007/06/09/opinion/09lee.html?ex=1339041600&en=a2f3d8f1f3cfcb61&ei=5090&partner=rssuserland&emc=rss

- Editorial: FTC Obligated to Set Internet Standards
The San Jose Mercury News says the FTC should set standards 
to protect privacy on the Internet.
http://www.mercurynews.com/opinion/ci_6081246?nclick_check=1

- Belgian Biometric Passport Does Not Get a Pass
Belgium's biometric passports do not have adequate security 
features.
http://www.dice.ucl.ac.be/crypto/passport/index.html

- Does Digital Fingerprinting Work?: An Investigative 
Report
Digital Fingerprinting is supposed to stop copyright 
infringement. But does it even work?
http://newteevee.com/2007/06/08/does-digital-fingerprinting-work-an-investigative-report/

- Fun With Small Print
By using these MiniLinks, you agree to abide by the terms 
of this agreement...
http://www.linuxworld.com/community/?q=node/618

- iTunes Data Trail
How much personal info do you give up with your downloads?
http://www.mtv.com/news/articles/1561780/20070606/id_0.jhtml

- Un-watermarking iTunes Plus
A new program strips out personal data saved with your iTunes 
tracks.
http://playlistmag.com/weblogs/ipodblog/index.php#58287

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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:
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