EFFector Vol. 20, No. 27 July 11, 2007 editor@eff.org
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
In the 431st Issue of EFFector:
- FBI Records Show Gonzales Knew About Years of Chronic NSL Problems
- An Independence Day Resolution: Reform FOIA!
- RIAA Should Pay for Single Mom's Two-Year Ordeal
- Divided Appeals Court Rules Against ACLU on NSA Wiretapping
- YouTube Embedding and Copyright
- Visit EFF at OSCON!
- miniLinks (10): Why the iPhone Isn't Really Revolutionary
- Administrivia
For more information on EFF activities & alerts:
http://www.eff.org/
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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* FBI Records Show Gonzales Knew About Years of Chronic NSL
Problems
EFF Lawsuit Uncovers History of Surveillance Mistakes
Washington, D.C. - Documents obtained by the Electronic
Frontier Foundation (EFF) show years of chronic problems
with the Federal Bureau of Investigation's use of National
Security Letters (NSLs) to collect Americans' personal
information and that Attorney General Alberto Gonzales has
long been aware of these problems.
The documents were disclosed after EFF sued the government
under the Freedom of Information Act (FOIA) earlier this
year for records related to a scathing Justice Department
critique of FBI NSL activity. The records detail more than
40 instances of improper, unauthorized collection of
information about individuals, including unlawful access to
phone records and email. The records show that Gonzales
himself was sent several of these problem reports,
including one less than a week before he told a
congressional committee that no civil liberties abuses have
resulted from the USA PATRIOT Act. He also voiced surprise
when the Justice Department report on NSL misuse was made
public earlier this year.
"These chronic privacy problems have long been known within
the Justice Department but still were kept secret from
those who really needed to know -- members of the American
public, including those who were surveilled," said EFF
Staff Attorney Marcia Hofmann. "The FBI can't be trusted to
police its own agents. It's time for Congress to provide
oversight to protect American citizens."
The FBI's use of NSLs was expanded under the USA PATRIOT
Act in 2001, allowing federal agents to gather private
records about anyone's domestic phone calls, emails, and
financial transactions without any court approval -- as
long as an FBI agent claims that the information could be
related to a terrorism or espionage investigation. EFF
submitted a FOIA request about the reported misuse of NSLs
in March, and when no documents were forthcoming, EFF sued
the FBI for their immediate release. Last month, a judge
held that the FBI was required to release records related
to the inspector general's report beginning on July 5, with
more documents to be disclosed every 30 days. In all, 1138
pages of NSL records were released to EFF late last week in
the first batch of documents complying with the court's
order.
"This is by no means the whole story on NSL abuse," said
EFF Senior Counsel David Sobel. "We're looking forward to
receiving the rest of the documents. Americans deserve the
whole story on the FBI's deeply flawed program to issue
NSLs."
For the complete FBI documents:
http://www.eff.org/flag/07656JDB/
For initial analysis of the documents:
http://www.eff.org/deeplinks/archives/005349.php
For this release:
http://www.eff.org/news/archives/2007_07.php#005351
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* An Independence Day Resolution: Reform FOIA!
On July 4, 1966, President Lyndon Johnson signed the FOIA
into law. FOIA gave weight to a principle that is
fundamental to any democracy: the right of the people to
know what the government is doing. Forty-one years later,
FOIA remains an essential tool used by the public, public
advocacy groups (including EFF), and news organizations to
uncover information that would otherwise remain hidden from
public view.
But a recent report from the George Washington University's
National Security Archive and the Knight Foundation shows
that FOIA is far from a perfect tool of transparency in
government. The study found that requests for information
often languish in bureaucratic limbo for years -- the
oldest dates back to 1987! The National Security Archive
actually had to use FOIA to find out how many FOIA requests
were still pending.
Luckily, a new bill to reform FOIA is working its way
through Congress, supported by a broad coalition of
organizations that spans the political spectrum. The OPEN
Government Act (S. 849) brings much needed reform to FOIA
and puts in place incentives for federal agencies to
process FOIA requests in a timely fashion. The bill would
create a tracking system for FOIA requests so that they
don't get lost in the bowels of federal agencies, as well
as allowing requesters who prevail in FOIA litigation to
recover reasonable attorney fees.
Meanwhile, EFF's FOIA lawsuits are making steady strides.
Along with uncovering information about National Security
Letters, we've filed suit seeking orders, rules and
guidelines issued by the Foreign Intelligence Surveillance
Court about the Administration's warrantless surveillance
program. There will be a hearing in the case on July 26 in
Washington, DC.
Take action to support the OPEN Government Act:
http://action.eff.org/site/Advocacy?id=285
For this post and related links:
http://www.eff.org/deeplinks/archives/005346.php
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* RIAA Should Pay for Single Mom's Two-Year Ordeal
Innocent Target of File-Sharing Lawsuit Racked Up Legal
Fees Fighting Baseless Charges
Seattle - The Recording Industry Association of America
(RIAA) should pay for a single mom's two-year legal ordeal
fighting a baseless file-sharing lawsuit, the Electronic
Frontier Foundation (EFF) told Washington state court in an
amicus brief filed last week.
The nightmare began for Dawnell Leadbetter in January of
2005, when she received a letter from the RIAA that accused
her of illegally downloading copyrighted music and claiming
she owed hundreds of thousands of dollars. Leadbetter
contacted the RIAA to deny the baseless claims, and she
refused to pay any settlement monies. In response, the RIAA
sued Leadbetter, and Leadbetter hired an attorney to fight
the charges. After months of legal wrangling, the RIAA
finally dropped the case in December of 2006. But in the
meantime, Leadbetter had incurred significant attorney's
fees.
"Ms. Leadbetter isn't the only innocent Internet user that
has been ensnared by the RIAA's litigation dragnet. But she
is one of the few who have fought back, resisting RIAA
pressure to pay settlement monies for something she did not
do," said EFF Staff Attorney Jason Schultz. "The RIAA's
settlement offers are usually less that what it would cost
to defend yourself, so it's a big commitment to hire a
lawyer to clear your name. Reimbursing Ms. Leadbetter's
attorney's fees could encourage other innocent lawsuit
targets to stand up for themselves."
Since 2003, the RIAA has sued over 20,000 people for
allegedly sharing music over the Internet. The industry
uses questionable investigative methods tactics to find its
targets, and then it often employs erroneous legal theories
in its quest for settlement monies. In Ms. Leadbetter's
case, the suit against her included accusations of
"secondary liability" -- putting her on the hook for
anything that happened on her Internet account, whether she
knew about it or not.
"The RIAA knows that this legal theory is wrong. But if
innocent victims are too scared to hire an attorney and
fight back, the public could suffer under the misconception
that these bogus theories are legitimate," Schultz said.
"Awarding attorney's fees to Ms. Leadbetter helps protect
everyone's rights under copyright law."
The amicus brief was filed in U.S. District Court in
Seattle in conjunction with attorney Derek Newman of Newman
& Newman LLP.
For the full amicus brief:
http://eff.org/legal/cases/interscope_v_leadbetter
For more on the RIAA lawsuit campaign:
http://www.eff.org/share
For this release:
http://www.eff.org/news/archives/2007_07.php#005347
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* Divided Appeals Court Rules Against ACLU on NSA
Wiretapping
A federal appeals court handed down a defeat for your civil
liberties last week, ordering the dismissal of the ACLU's
case challenging the NSA's warrantless wiretapping program.
In a 2-1 ruling, the 6th U.S. Circuit Court of Appeals
found that the plaintiffs, attorneys and journalists who
had stopped communicating with their foreign clients and
sources for fear of illegal wiretapping did not have legal
standing to sue. The case was based on the President's
admissions about the warrantless wiretapping.
Judge Ronald Gilman dissented, finding that the warrantless
surveillance program violated the law and rejecting the
President's assertion of inherent authority to break laws
in the name of national security.
The court's decision threw out last year's district court
ruling, which found the NSA's Terrorist Surveillance
Program "violates the Separation of Powers doctrine, the
Administrative Procedures Act, the First and Fourth
Amendments to the United States Constitution, the Foreign
Intelligence Surveillance Act and Title III."
EFF has sued AT&T on behalf of its customers for the
telecommunications giant's role in the NSA's illegal
spying, which we allege goes beyond what the President has
directly admitted and intercepts the phone and Internet
communications of millions of ordinary Americans. Last
summer, Judge Walker rejected the government's motion to
dismiss EFF's case, along with AT&T's motion to dismiss,
and allowed the case to go forward. That ruling is on
appeal and will be heard by the 9th Circuit on August 15,
2007, in San Francisco.
For this post and related links:
http://www.eff.org/deeplinks/archives/005348.php
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* YouTube Embedding and Copyright
There seems to be a considerable amount of interest in and
confusion about the copyright law consequences of embedding
a YouTube video in your blog. In fact, the Blog Herald
recently ran a story suggesting that bloggers could be on
the hook for copyright infringement if they embed a video
that turns out to be infringing.
Well, the news really isn't that dire. In fact, we believe
that bloggers are generally pretty safe on this score, at
least until someone notifies them that an embedded video is
infringing.
First, it's important to understand what an embedded
YouTube video is -- it's a link. No copy of the YouTube
video is being stored on your server (only the HTML code
for the embed). The video stays on, and is streamed from,
YouTube's servers.
That makes the embedded YouTube video essentially
indistinguishable from the in-line image links that are
used all over the Web, including in Google's Image Search.
In the recent Perfect 10 v. Amazon ruling, the Ninth
Circuit made it very clear that where in-line links are
concerned, there is absolutely no direct copyright
infringement liability. So, for purposes of direct
infringement, the answer to one question will generally
resolve the issue: where is the copy hosted?
That leaves contributory infringement. If you link to a
video that you know is infringing, or that any reasonable
person would have known is infringing, and if your link
materially contributes to the infringement, then you could
be liable for contributory infringement -- a kind of
"aiding and abetting" liability.
The contributory infringement test should leave plenty of
breathing room for most bloggers. Two rules of thumb should
avoid most issues -- (1) don't embed videos that are
obviously infringing, and (2) consider removing embedded
videos once you've been notified by a copyright owner that
they are infringing.
If you want even more protection, you can register yourself
as the "Copyright Agent" for your blog (requires a form and
$80 payment to the U.S. Copyright Office), familiarize
yourself with the requirements of the DMCA's online service
provider "safe harbors" (the chief one for most bloggers
will be notice-and-takedown), and take advantage of the
same protections that shield Yahoo! and Google when they
link to sites that may include infringing materials.
In short, embedding YouTube videos isn't that scary from a
copyright POV, at least until a copyright owner takes the
trouble to notify you.
For this post and related links:
http://www.eff.org/deeplinks/archives/005350.php
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* Visit EFF at OSCON!
EFF will be at the O'Reilly Open Source Convention (OSCON)
in Portland, Oregon on July 25-26. Come visit us at booth
#121, and grab some schwag:
http://conferences.oreillynet.com/os2007/
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* miniLinks
The week's noteworthy news, compressed.
~ Why the iPhone Isn't Really Revolutionary
Tim Wu points out that beneath the iPhone's snazzy design
lurks a standard business model.
http://www.slate.com/id/2169352/fr/flyout
~ The "iPhone Killer" Arrives
An open source, touch-screen, Linux-based phone that can be
used with any GSM carrier.
http://blog.wired.com/monkeybites/2007/07/the-linux-power.html
~ Top Secret: We're Wiretapping You
The FBI accidentally gave a DC attorney proof that he was
being wiretapped.
http://www.wired.com/science/discoveries/news/2007/03/72811?currentPage=all
~ Judge Dismisses New York Times Lawsuit
A FOIA request on warrantless wiretapping was thrown out by
a federal judge, citing executive privilege.
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/02/AR2007070201600.html
~ Net Growth Prompts Privacy Update
The leading industrial nations adopt new guidelines on
privacy.
http://news.bbc.co.uk/2/hi/technology/6254650.stm
~ EU, U.S. to Share Passenger Data
A deal between the EU and the U.S. allows the storage of
traveler data for up to 15 years.
http://edition.cnn.com/2007/WORLD/europe/06/29/europe.data.ap/index.html
~ German Parliament Passes New Copyright Act
Reforms allow users to make personal copies, but not to
"break" DRM.
http://www.heise.de/english/newsticker/news/92318
~ Court Holds Belgian ISP Responsible for File Sharing
ISPs in Belgium are ordered to police their networks for
piracy.
http://www.macworld.com/news/2007/07/05/filesxharing/index.php
~ Digital Music Sales Flex Muscles
Does good news for digital sales mean bad news for the
traditional album?
http://arstechnica.com/news.ars/post/20070705-growing-digital-music-singles-killing-the-album.html
~ Fake Steve Jobs: How I Put Labels on a Leash
Tells the story of how the major labels handed Apple an 80%
share of the digital music market.
<http://fakesteve.blogspot.com/2007/07/music-industry-nobs-have-finally.html>
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* Administrivia
EFFector is published by:
The Electronic Frontier Foundation
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Editor:
Derek Slater, Activism Coordinator
derek@eff.org
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