Fwd: EFFector 18.37: Court Issues Surveillance Smack-Down to Justice Department

Oct. 27, 2005

Type: discussion

Begin forwarded message:
>
> EFFector Vol. 18, No. 37 October 27, 2005 [email protected]
>
> A Publication of the Electronic Frontier Foundation
> ISSN 1062-9424
>
> In the 353rd Issue of EFFector:
>
> * Court Issues Surveillance Smack-Down to Justice Department
> * Plan for Internet "Backdoors" Draws Coordinated Attack
> * Want to Take a Bite Out of the DMCA? Now's the Time
> * First Annual P2P Litigation Summit, November 3
> * The Patent System of the Future?
> * Spring Legal Internships at EFF
> * Stanford Center for Internet and Society Mailing List
> * miniLinks (10): Open Letter to Yahoo's Jerry Yang
> * Staff Calendar: 10.30.05 - Fred von Lohmann at Eastern
> District of California Judicial Conference in Monterey, CA;
> 11.3.05 - Cindy Cohn, Corynne McSherry, and Allison Navone at
> P2P Litigation Summit in Chicago; 11.4.05 - Cindy Cohn at IP
> Law Association of Chicago, Fred von Lohmann at Advanced
> Software Law and Practice in San Francisco, Cory Doctorow at
> Center for Brazilian Studies, Oxford
> * Administrivia
>
> For more information on EFF activities & alerts:
> <http://www.eff.org/>
>
> Make a donation and become an EFF member today!
> <http://secure.eff.org/support>
>
> Tell a friend about EFF:
> <http://action.eff.org/site/Ecard?ecard_id61>
>
> : . : . : . : . : . : . : . : . : . : . : . : . : . : . :
>
> * Court Issues Surveillance Smack-Down to Justice Department
>
> No Cell Phone Location Tracking Without Probable Cause
>
> New York–Agreeing with a brief submitted by EFF, a federal
> judge forcefully rejected the government's request to track
> the location of a mobile phone user without a warrant.
>
> Strongly reaffirming an earlier decision, Federal Magistrate
> James Orenstein in New York comprehensively smacked down
> every argument made by the government in an extensive, fifty-
> seven page opinion issued this week. Judge Orenstein decided,
> as EFF has urged, that tracking cell phone users in real time
> required a showing of probable cause that a crime was being
> committed. Judge Orenstein's opinion was decisive, and
> referred to government arguments variously as "unsupported,"
> "misleading," "contrived," and a "Hail Mary."
>
> "This is a true victory for privacy in the digital age, where
> nearly any mobile communications device you use might be
> converted into a tracking device," said EFF Staff Attorney
> Kevin Bankston. "Combined with a similar decision this month
> from a federal court in Texas, I think we're seeing a
> trend–judges are starting to realize that when it comes to
> surveillance issues, the DOJ has been pulling the wool over
> their eyes for far too long."
>
> Earlier this month, a magistrate judge in Texas, following
> the lead of Orenstein's original decision, published his own
> decision denying a government application for a cell phone
> tracking order. That ruling, along with Judge Orenstein's
> two decisions, revealed that the DOJ has routinely been
> securing court orders for real-time cell phone tracking
> without probable cause and without any law authorizing the
> surveillance.
>
> "The Justice Department's abuse of the law here is probably
> just the tip of the iceberg," said EFF Staff Attorney Kurt
> Opsahl. "The routine transformation of your mobile phone
> into a tracking device, without any legal authority, raises
> an obvious and very troubling question: what other new
> surveillance powers has the government been creating out of
> whole cloth and how long have they been getting away with
> it?"
>
> The government is expected to appeal both decisions and EFF
> intends to participate as a friend of the court in each case.
>
> For the full text of Judge Orenstein's new opinion, and the
> similar Texas opinion:
> <http://www.eff.org/legal/cases/USA_v_PenRegister>
>
> For this release:
> <http://www.eff.org/news/archives/2005_10.php#004090>
>
> : . : . : . : . : . : . : . : . : . : . : . : . : . : . :
>
> * Plan for Internet "Backdoors" Draws Coordinated Attack
>
> The FCC's new tech mandate requiring Internet backdoors is
> wrong in so many ways, we cannot even keep count. A few
> choice ways, in lawyer-speak, is that it exceeds the FCC's
> authority, is arbitrary, capricious, unsupported by the
> evidence, and is contrary to law. EFF and six other groups
> have now teamed up to stop it.
>
> The coalition has petitioned an appeals court to review the
> FCC ruling that would expand the Communications Assistance to
> Law Enforcement Act (CALEA) to broadband ISPs and VoIP
> providers, forcing them to build insecure backdoors into
> their networks. Law enforcement says it needs the backdoors
> because, they argue, it's just too hard for them to intercept
> all the communications that they need. But that kind of easy
> access will also endanger the privacy of innocent people,
> stifle innovation, and risk the Internet as a forum for free
> and open expression.
>
> EFF has already argued against this expansion of CALEA in
> several rounds of comments to the FCC, and we'll be there
> every step of the way during the court battle.
>
> Petition from EFF and other groups:
> <http://www.cdt.org/digi_tele/20051025caleapetition.pdf>
>
> More on FCC and CALEA:
> <http://www.eff.org/news/archives/2005_09.php#004011>
>
> : . : . : . : . : . : . : . : . : . : . : . : . : . : . :
>
> * Want to Take a Bite Out of the DMCA? Now's the Time
>
> As part of the Digital Millennium Copyright Act (DMCA),
> Congress instructed the U.S. Copyright Office to consider
> every three years whether we need exemptions to the DMCA's
> blanket ban on circumventing "technological protection
> measures" (aka Digital Rights Management or DRM) used to lock
> up copyrighted works. So if you want to make a legitimate
> use of a piece of media, but have been turned back by DRM and
> the DMCA, now is your chance to take your case to the
> Copyright Office and try to make the world a happier and
> safer place for the next three years. As two-time-
> successful-exemption-requester Seth Finkelstein says: "The
> lawsuit you prevent may be your own."
>
> The Copyright Office is soliciting exemption proposals for
> the next three-year period, 2006-2009. Proposals must be
> submitted to the Copyright Office by no later than December
> 1, 2005.
>
> Keep in mind that–as in the two previous rule-makings–you'll
> have to overcome some obstacles to convince the Copyright
> Office and Librarian of Congress to grant you an exemption.
> These include:
>
> 1. The Copyright Office can recommend exemptions only to the
> DMCA's ban on acts of circumvention, not to the ban on
> trafficking in tools of circumvention. So if you are
> interested in an exemption that would allow you to distribute
> circumvention tools (like DVD back-up software), you're out
> of luck.
>
> 2. You have to prove that your intended activity is not
> otherwise an infringement of copyright law and specifically
> identify the DRM technology that is getting in your way.
>
> 3. You have to identify a "class" of copyrighted works to
> which your exemption would apply. The Copyright Office
> requires that you do this by defining a subset of works of
> authorship. You are not allowed to frame the class by
> reference to particular non-infringing uses of those works,
> or by attributes of the users. For example, the Copyright
> Office has rejected past requests for exemptions for
> "classroom uses" of DVDs, while granting exemptions for
> computer programs protected by malfunctioning copy-protection
> dongles.
>
> These are just a few of the sometimes bewildering array of
> limitations on the Copyright Office's willingness to
> entertain exemption proposals. The best way to understand
> the requirements is to read up on the links below. If, after
> reviewing these, you think you might have something that
> qualifies, EFF would like to hear from you. Please email
> exemption class proposals to dmca2006-proposals @eff.org by
> November 24.
>
> Finkelstein describes his experience:
> <http://www.eff.org/IP/DMCA/finkelstein_on_dmca.html>
>
> Official Federal Register notice:
> <http://www.copyright.gov/fedreg/2005/70fr57526.html>
>
> Report on rule-making from 2003:
> <http://www.copyright.gov/1201/docs/registers-recommendation.pdf>
>
> The four exemptions granted in 2003:
> <http://www.copyright.gov/fedreg/2003/68fr2011.pdf>
>
>
> : . : . : . : . : . : . : . : . : . : . : . : . : . : . :
>
> * Join us: First Annual P2P Litigation Summit, November 3
>
> In September 2003, members of the Recording Industry
> Association of America (RIAA) filed the first wave of
> lawsuits against individual peer-to-peer (P2P) file-sharers.
> Two years and 14,000 lawsuits later, both P2P file-sharing
> and file-sharing litigation continue unabated, and members of
> the Motion Picture Association of America (MPAA) are now
> suing individual Internet users, as well. It's time to step
> back and consider where this litigation has been, where it's
> going, and whether there is a better way forward.
>
> EFF is co-sponsoring the First Annual P2P Litigation Summit,
> to be held on Thursday, November 3, 2005, at Northwestern
> University School of Law in Chicago, Illinois. We'd love to
> see you there.
>
> The daylong roundtable discussion brings together public and
> private defense attorneys, clients, investigators, advocates,
> and academics to discuss the latest developments in peer-to-
> peer litigation. How do the RIAA and MPAA go about
> identifying plaintiffs? What are the most effective legal
> strategies and tactics? Is it better to settle immediately
> or fight it out in the courts? How is this impacting the
> individuals sued? What is the role of ISPs in this quagmire?
> Should Congress step in and, if so, what legislation is
> needed? Are there other ways to compensate authors for their
> works?
>
> More information, and to register:
> <http://www.signmeup.com/51363>
>
> : . : . : . : . : . : . : . : . : . : . : . : . : . : . :
>
> * The Patent System of the Future?
>
> For those following the E.U. software patent directive, U.S.
> Patent and Trademark Office reform proposals, and the
> substantive patent law harmonization merriment at WIPO,
> here's your chance to meet the Trilateral PTOs. Join the
> European Patent Office, the Japan Patent Office and the USPTO
> for a meeting with users on "The Patent System of the Future:
> The Role of the Trilateral Offices" in Munich, November 17.
>
> For more information and to register:
> <http://www.trilateral.net/meet_users/index.php>
>
> : . : . : . : . : . : . : . : . : . : . : . : . : . : . :
>
> * Spring Legal Internships at EFF
>
> EFF invites outstanding law students to apply for Spring
> internship positions at our high-energy office in San
> Francisco. You can work with EFF's legal team to litigate
> cutting-edge issues surrounding new technologies. Interns
> assist in all aspects of litigation and advocacy, including
> legal research, factual investigation, and drafting of
> memoranda and briefs, while also helping with policy
> research, client counselling, and the development of public
> education materials. EFF's docket ranges across the
> technological and legal landscape, from file-sharing to
> electronic voting to the USA PATRIOT Act.
>
> Spring internships are two full days per week and last 10-12
> weeks. First and second-year law students are encouraged to
> apply, including students enrolled in non-US schools.
>
> For details:
> <http://www.eff.org/about/opportunities/legalinterns/>
>
> : . : . : . : . : . : . : . : . : . : . : . : . : . : . :
>
> * Stanford Center for Internet and Society Mailing List
>
> Stanford Law School Center for Internet and Society lost its
> mailing list. (Oops!)
>
> To subscribe, or re-subscribe:
> <http://cyberlaw.stanford.edu/list/>
>
> For the first issue of The Packets Newsletter:
> <http://cyberlaw.stanford.edu/packets/vol_3_no_1/>
>
> : . : . : . : . : . : . : . : . : . : . : . : . : . : . :
>
>
> * Staff Calendar
> For a complete listing of EFF speaking engagements (with
> locations and times), please visit the full calendar:
> <http://www.eff.org/calendar/>
>
> October 30
> Fred von Lohmann speaking at the Eastern District of
> California 2005 Judicial Conference in Monterey, CA
>
> November 3
> Cindy Cohn, Corynne McSherry, and Allison Navone speaking at
> the P2P Litigation Summit in Chicago
> <http://www.eff.org/IP/P2P/p2p_litigation_summit.php>
>
> November 4
> Cindy Cohn speaking at the Intellectual Property Law
> Association in Chicago
> <http://www.iplac.org</a>
> Fred von Lohmann speaking at the Advanced Software Law and
> Practice in San Francisco
> <http://www.marcusevans.com/events/CFEventinfo.asp?EventID