San Francisco - The Obama administration formally adopted the Bush administration's position that the courts cannot judge the legality of the National Security Agency's (NSA's) warrantless wiretapping program, filing a motion to dismiss Jewel v. NSA late Friday.

In Jewel v. NSA, the Electronic Frontier Foundation (EFF) is challenging the agency's dragnet surveillance of millions of ordinary Americans. The Obama Justice Department claims in its motion that litigation over the wiretapping program would require the government to disclose privileged "state secrets." These are essentially the same arguments made by the Bush administration three years ago in Hepting v. AT&T, EFF's lawsuit against one of the telecom giants complicit in the NSA spying.

"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," said EFF Senior Staff Attorney Kevin Bankston. "But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."

For the full motion to dismiss:
http://www.eff.org/files/filenode/jewel/jewelmtdobama.pdf

For more on Jewel v. NSA:
http://www.eff.org/cases/jewel

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org

Philadelphia - The Electronic Frontier Foundation (EFF) urged a U.S. appeals court Monday to block the government's repeated attempts to seize cell phone location information -- a record of where the cell phone user travels throughout each day -- without a warrant in violation of communications privacy statutes and the Constitution.

In September of last year, a federal court affirmed that location information stored by a mobile phone provider is legally protected and that a judge can and should require law enforcement to show probable cause in order to access the stored data. However, the government appealed that decision to the 3rd U.S. Circuit Court of Appeals.

Cell phone providers store an extraordinary amount of data about where you are when making or receiving a call, based on the cell towers your phone uses. In the amicus brief filed Monday, EFF argues that Electronic Communications Privacy Act and the Fourth Amendment protect this location information from unfettered search and seizure.

"The government argues that federal law requires judges to approve their applications for location information from cell phone companies -- even if the police don't have probable cause to obtain this sensitive information," said EFF Civil Liberties Director Jennifer Granick. "Courts have the right under statute -- and the duty under the Constitution -- to demand that the government obtain a search warrant before seizing this private location data."

The American Civil Liberties Union (ACLU), the ACLU Foundation of Pennsylvania, and the Center for Democracy and Technology (CDT) joined EFF's brief.

For the full amicus brief:
http://www.eff.org/files/filenode/celltracking/Filed%20Cell%20Tracking%20Brief.pdf

For more on cell phone tracking:
http://www.eff.org/issues/cell-tracking

Contact:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

San Francisco - In celebration of Sunshine Week, the Electronic Frontier Foundation (EFF) today launched a sophisticated search tool that allows the public to closely examine thousands of pages of documents the organization has pried loose from secretive government agencies. The documents relate to a wide range of cutting-edge technology issues and government policies that affect civil liberties and personal privacy.

EFF's document collection -- obtained through requests and litigation under the Freedom of Information Act (FOIA) -- casts light on several controversial government initiatives, including the FBI's Investigative Data Warehouse and DCS 3000 surveillance program, and the Department of Homeland Security's Automated Targeting System and ADVISE data-mining project. The documents also provide details on Justice Department collection of communications routing data, Pentagon monitoring of soldiers' blogs, mismatches in the Terrorist Screening Center's watchlist, and FBI misuse of its national security letter subpoena authority.

The new search capability enables visitors to EFF's website to conduct keyword searches across the universe of government documents obtained by EFF, maximizing the value of the material.

"Until recently, documents obtained under FOIA often gathered dust in filing cabinets," said David Sobel, EFF Senior Counsel and director of the organization's FOIA Litigation for Accountable Government (FLAG) Project. "We believe that government information should be widely available and easy to research, and our new search engine makes that a reality."

EFF is launching the tool during national Sunshine Week, an annual, non-partisan event that promotes government transparency. The celebration is particularly significant this year, because it comes after eight years of a presidential administration that was widely criticized for its secrecy and two months into a new administration that has promised "unprecedented" openness.

"We welcomed President Obama's declaration -- on his first full day in office -- that he will work to make the federal government more open and participatory," EFF Staff Attorney Marcia Hofmann said. "There's certainly a lot of work to do -- so much government activity has been hidden from public view in the name of 'national security' and the 'war on terror.'"

For the new FOIA document search tool:
http://www.eff.org/issues/foia/search

For more on EFF's FLAG Project:
http://www.eff.org/issues/foia

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) launched its Surveillance Self-Defense project today -- an online how-to guide for protecting your private data against government spying. You can find the project at http://ssd.eff.org.

EFF created the Surveillance Self-Defense site to educate Americans about the law and technology of communications surveillance and computer searches and seizures, and to provide the information and tools necessary to keep their private data out of the government's hands. The guide includes tips on assessing the security risks to your personal computer files and communications, strategies for interacting with law enforcement, and articles on specific defensive technologies such as encryption that can help protect the privacy of your data.

"Despite a long and troubling history in this country of the government abusing its surveillance powers, most Americans know very little about how the law protects them or about how they can take steps to protect themselves against government surveillance," said EFF Senior Staff Attorney Kevin Bankston. "The Surveillance Self-Defense project offers citizens a legal and technical toolkit with tips on how to defend themselves in case the government attempts to search, seize, subpoena or spy on their most private data."

Surveillance Self-Defense details what the government can legally do to spy on your computer data and communications, and what you can legally do to protect yourself against such spying. It addresses how to protect not only the data stored on your computer, but also the data you communicate over the phone or the Internet and data about your communications that are stored by third party service providers.

"You can imagine the Internet as a giant vacuum cleaner, sucking up all of the private information that you let near it. We want to show people the tools they can use to encrypt and anonymize data, protecting themselves against government surveillance," said EFF Staff Technologist Peter Eckersley. "Privacy is about mitigating risks and making tradeoffs. Every decision you make about whether to save an email, chat online, or search with or sign into Google has privacy implications. It's important to understand those implications and make informed decisions based on them, and we hope that Surveillance Self-Defense will help you do that."

Surveillance Self-Defense was created with the support of the Open Society Institute.

For Surveillance Self-Defense:
http://ssd.eff.org

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Peter Eckersley
Staff Technologist
Electronic Frontier Foundation
pde@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) called on the Federal Trade Commission (FTC) today to mitigate the damage that digital rights management (DRM) technologies cause consumers.

In public comments submitted to the FTC today, EFF explained how DRM, backed by the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), impedes innovation and thwarts consumers' rights to make full use of their digital music, movies, software, and videogames. EFF urged the commission to study DRM's effect on competition in the marketplace, investigate whether the effects of DRM are fully disclosed to consumers, and promote a set of "Best Practices" that, if followed, would help alleviate the burdens of DRM for consumers.

Industry leaders argue that DRM is necessary to protect sales of digital media, but DRM systems are consistently and routinely broken almost immediately upon their introduction.

"DRM does not prevent piracy," said EFF Staff Attorney Corynne McSherry. "At this point, DRM seems intended to accomplish a very different purpose: giving some industry leaders unprecedented power to influence the pace and nature of innovation and upsetting the traditional balance between the interests of copyright owners and the interests of the public. The best way to fix the problem is to get rid of DRM on consumer products and reform the DMCA, but the steps we're suggesting will help protect technology users and future technology innovation in the meantime."

EFF's comments were filed in conjunction with the FTC's Town Hall on DRM, set for March 25 in Seattle. The Town Hall is free and open to the public.

For EFF's full comments to the FTC:
http://www.eff.org/files/filenode/DRM/DRMCOMMENTS_final.pdf

For more on the FTC Town Hall on DRM:
http://www.ftc.gov/opa/2008/12/drm.shtm

Contact:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) submitted a petition to the U.S. Copyright Office today signed by more than 8200 people demanding that the office lift the legal cloud hanging over cell phone customers who modify their phones.

The petition was part of EFF's reply comment in the 2009 Copyright Office rulemaking, convened every three years to consider exemptions to the Digital Millennium Copyright Act's (DMCA) ban on circumvention of digital rights management (DRM) restrictions. The comments follow EFF's initial exemption requests, filed with the Copyright Office in December, that are aimed freeing cell phones from the software locks that stifle competition and cripple consumers. EFF also represents The Wireless Alliance, ReCellular and FlipSwap, phone recyclers and resellers that rely on phone unlocking to keep functional devices in the hands of consumers and out of landfills.

Cell phone manufacturers and service providers routinely use software locks on mobile phones to prevent customers from connecting to new service providers or running the software of their choosing. While hundreds of thousands of cell phone owners have modified their phones so they can use their devices the way they want to, the threat of litigation under the circumvention provisions of the DMCA threatens to drive this activity underground. For example, EFF's proposed exemptions would eliminate the risk of DMCA liability for those who "unlock" or "jailbreak" their iPhones.

"The DMCA is supposed to protect copyrighted works, not reduce competition and consumer choice," said EFF Civil Liberties Director Jennifer Granick. "Cell phone users need a clear message from the Copyright Office that modification is protected."

EFF also submitted a white paper explaining how Apple implements restrictions on the iPhone and T-Mobile implements restrictions on its Android G1 phone. Many of the petition signers also sent their own stories of frustration directly to the Copyright Office.

"Through our FreeYourPhone.org website, we heard a lot of stories of consumers and developers who want to innovate and create new tools for mobile phones," said EFF Intellectual Property Attorney Fred von Lohmann. "The DMCA shouldn't be used to prevent advances in cell phone technology. Who knows what exciting new feature you might not ever get to use because of the threat of litigation?"

In addition to the cell phone submissions, EFF also requested an exemption to protect the video remix culture currently thriving on Internet sites like YouTube. The filing asks for a DMCA exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial works.

The Copyright Office will hold public hearings on the DMCA exemption requests in Washington, DC, and California in the spring, and the final rulemaking order will be issued in October.

For EFF's full comments:
http://www.eff.org/files/filenode/dmca_2009/EFF2009replycomment_0.pdf

For more on the DMCA rulemaking:
http://www.eff.org/cases/2009-dmca-rulemaking

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Washington, D.C. - The Office of the United States Trade Representative (USTR) is withholding hundreds of documents about a secret intellectual property enforcement treaty currently under negotiation between the U.S. and more than a dozen other countries.

In a pending federal lawsuit, the Electronic Frontier Foundation (EFF) and Public Knowledge are demanding that background documents on the Anti-Counterfeiting Trade Agreement (ACTA) be released under the Freedom of Information Act (FOIA). But the USTR has claimed that more than 1300 pages should be withheld because they implicate national security or expose the USTR's deliberative processes. The USTR has released only 159 pages for public viewing.

ACTA raises serious concerns about citizens' civil liberties and privacy rights. The contents and text of ACTA remain secret, but a document leaked to the public last year shows that ACTA could include stronger criminal measures, increased customs border search powers, and requirements for Internet service providers to cooperate with copyright holders. Some public suggestions from content companies have included requiring ISPs to engage in filtering of their customers' Internet communications for potentially copyright-infringing material, mandatory disclosure of personal information about alleged copyright infringers, and adoption of "Three Strikes" policies requiring ISPs to automatically terminate customers' Internet access upon a repeat allegation of copyright infringement.

"ACTA could lead to new invasive monitoring of Internet communications by your ISP and raises serious potential due process concerns for Internet users," said EFF International Policy Director Gwen Hinze. "Because ACTA is to be adopted as an Executive Agreement, it will bypass normal processes of Congressional oversight. Therefore, it is crucial that citizens have access to information about its contents in a timely manner. The USTR's decision to withhold documents that citizens are entitled to see as a matter of law prevents citizens from evaluating ACTA's impact on their lives and expressing their opinions to their political leaders before it's a fait accompli."

Despite the vast amount of relevant information that was withheld, the documents that were released disclosed some interesting information about ACTA, including records revealing U.S. government policy that ACTA documents should only be shown to government officials or others who work closely with a country's consultation process. The records also show that the U.S. government intends to "hold ACTA documents in confidence for a fixed period after negotiations conclude." But not everyone has been kept in the dark about ACTA. Officials from the USTR met privately with the major U.S. proponents of the treaty: the Global Leadership Group of the International Chamber of Commerce's Business Action to Stop Counterfeiting and Piracy and the Coalition Against Counterfeiting and Piracy at least three times in 2008.

EFF and Public Knowledge first made their FOIA request of the USTR in June of 2008. After the agency dragged its feet in responding, EFF and Public Knowledge filed suit in federal court in Washington, DC, in September of 2008. EFF plans to ask the court to stay further action in the case pending the release of new guidelines by the Attorney General implementing President Obama's January 21 memorandum stating that all agencies "should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government."

"We are disappointed with the USTR's response so far," said Public Knowledge Staff Attorney Sherwin Siy. "With the guidance of this new policy, we hope that the USTR will reassess its less-than-forthcoming compliance with our FOIA request and provide the public with the much-needed transparency and accountability about this important global agreement."

For the significant documents released under FOIA:
http://www.eff.org/fn/directory/6661/328

For more on this case:
http://www.eff.org/cases/eff-and-public-knowledge-v-ustr

For more on ACTA:
http://www.eff.org/issues/acta/

Contacts:

Gwen Hinze
International Policy Director
Electronic Frontier Foundation
gwen@eff.org

Eddan Katz
International Affairs Director
Electronic Frontier Foundation
eddan@eff.org

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

San Francisco - The Electronic Frontier Foundation (EFF) is asking for the public's help in its new campaign to free cell phones from the software locks that stifle competition and cripple consumers. The campaign's website is FreeYourPhone.org.

Hundreds of thousands of cell phone owners have modified their phones to connect to a new service provider or run the software of their choosing, and many more would like to. But the threat of litigation under the Digital Millennium Copyright Act (DMCA) has driven them underground.

The DMCA prohibits "circumventing" technical protection measures used to protect copyrighted works. But many cell phone manufacturers and service providers build these software locks to protect their business models instead of copyrighted material.

"Apple locks its iPhone to AT&T and prevents users from installing any software that has not been pre-approved by Apple," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Consumers need a DMCA exemption to lift the cloud of legal risk that otherwise serves only to reduce competition and consumer choice."

Every three years, the U.S. Copyright Office convenes a rulemaking to consider granting exemptions to the DMCA's ban on circumvention to mitigate the consumer harm. EFF has already filed exemption requests with the Copyright Office addressing the issues, but the rulemaking proceeding also accepts public comments about the proposals.

"Companies are using the DMCA to threaten customers out of exercising their consumer rights," said EFF Civil Liberties Director Jennifer Granick. "The Copyright Office needs to hear real stories about how these software locks frustrate consumers and developers."

On FreeYourPhone.org, people can sign EFF's petition to the Copyright Office and share their stories about cell phone frustrations. EFF will also help people officially submit those stories to the Copyright Office before the February 2 deadline. The Copyright Office will hold public hearings on the DMCA exemption requests in Washington, DC, and California in the spring, and the final rulemaking order will be issued in October.

For more on the Free Your Phone campaign:
http://www.FreeYourPhone.org

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination of an illegitimate music patent from the U.S. Patent and Trademark Office (PTO). This was the sixth reexamination request filed by EFF's Patent Busting Project and the sixth time the PTO has granted EFF's request.

Seer Systems was awarded this patent for a system and method for joining different musical data types together in a file, distributing them over the Internet, and then playing that file. In the reexamination request, EFF, along with the law firm Day Casebeer Madrid & Batchelder, show that descriptions of this technology were published a number of times before Seer Systems made its claim—including in a book written by Seer's own founder and the named inventor of the patent, Stanley Jungleib.

"Mr. Jungleib encouraged others to use the techniques he described in his book and sought patent protection only after those ideas had entered the public domain," said EFF Senior Intellectual Property Attorney Michael Kwun. "It's unfortunate that Seer Systems didn't call Mr. Jungleib's book and the other prior art we cited to the PTO's attention before the patent issued."

Seer Systems now has the opportunity to file comments defending the patent, and then the PTO will determine whether to invalidate the patent. The PTO has narrowed or revoked roughly 70% of patents it has decided to reexamine.

"Unmeritorious patents can place significant barriers in the way of innovation in the digital age," said Paul Grewal of the Day Casebeer firm. "The PTO quite rightly concluded that there are substantial questions of patentability raised by our request, and we look forward to the PTO's ultimate decision on this patent."

Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School provided substantial assistance on this reexamination request, carrying out detailed research, preparing an initial claim chart, locating and analyzing a critical piece of prior art cited in the request, and drafting the prior art description that EFF posted on its website. The Seer patent being challenged is U.S. Patent No. 5,886,274, and the reexamination has been assigned the control number 90/009,299.

This reexamination request is part of EFF's Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. So far, the project has killed one patent covering a system and method of creating digital recordings of live performances. Five more patents are under review by the PTO due to the Patent Busting Project's efforts.

For the full reexamination order:
http://w2.eff.org/patent/wanted/seer/seer-reexam-granted.pdf

For more on the Patent Busting Project:
http://www.eff.org/patent/

Contacts:

Michael Kwun
Senior Intellectual Property Attorney
Electronic Frontier Foundation
michael@eff.org

Paul Grewal
Partner
Day Casebeer Madrid & Batchelder
pgrewal@daycasebeer.com

San Francisco - The Electronic Frontier Foundation (EFF) along with Public Citizen and Public Knowledge urged a U.S. court of appeals Wednesday to reject jewelry-maker Tiffany's attempt to rewrite trademark law and create new barriers for online commerce and communication.

Tiffany sued the online marketplace eBay, claiming that eBay should be held liable for trademark infringement when sellers offer counterfeit Tiffany goods on the eBay site. The evidence in the case showed that eBay quickly takes down listings when Tiffany sends notice that it believes a specific item is not genuine. However, Tiffany wants eBay to police listings on its own and to be held responsible for any counterfeit items it missed.

"Millions of Americans use sites like eBay and craigslist to buy and sell goods," said EFF Senior Intellectual Property Attorney Michael Kwun. "If Tiffany had its way, sites like eBay would be responsible for figuring out whether items its users are selling -- items eBay itself never sees -- are authentic or counterfeit. That's an impossible task."

A judge correctly rejected Tiffany's claims earlier this year. In an amicus brief filed with the 2nd U.S. Circuit Court of Appeals Wednesday, EFF asks the court to reject Tiffany's new attempts to expand trademark law.

"The Internet has created new opportunities for communication, and trademarks are an integral part of this exchange," said EFF Staff Attorney Corynne McSherry. "But if intermediaries have to take on the burden of policing trademarks, many Internet service providers will take the easy route and remove any posting that is even remotely suspicious. That would effectively quash the extraordinary growth of online commerce and speech."

For the full amicus brief:
http://www.eff.org/files/filenode/tiffany_v_ebay/effamicus.pdf

For more on this case:
http://www.eff.org/cases/tiffany-v-ebay

Contacts:

Michael Kwun
Senior Intellectual Property Attorney
Electronic Frontier Foundation
michael@eff.org

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

San Francisco - On Tuesday, December 2, at 10 a.m., the Electronic Frontier Foundation (EFF) will challenge the constitutionality of a federal law aimed at granting immunity to telecommunications companies participating in illegal domestic surveillance.

At Tuesday's hearing, EFF will argue that the flawed FISA Amendments Act (FAA) improperly attempts to take away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law. Signed by President Bush earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court in September and is demanding that the cases be dismissed.

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency. EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 46 outstanding lawsuits concerning the government's warrantless surveillance program.

Also Tuesday, in the afternoon, the court will hear the arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the government illegally wiretapped calls between the charity and its lawyers.

For more information about attending the hearing, please contact press@eff.org.

WHAT:
Hepting v. AT&T and other NSA telecommunications records lawsuits

WHEN:
Tuesday, December 2
10 a.m.

WHERE:
450 Golden Gate Ave., Courtroom 6
San Francisco, CA 94102

For more on EFF's case against AT&T:
http://www.eff.org/nsa/hepting

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Frankfort, KY - The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) urged a Kentucky Court of Appeals Wednesday to vacate a lower court's order authorizing the seizure of more than 100 Internet domain names associated with websites operating around the globe. The seizure, and the lower court's exercise of jurisdiction over global domain names, threatens free speech across the Internet. In a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to "seize" 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country. Unless the sites screened out Kentucky users, the court held, the seizure order was proper.

In its amicus brief filed with the Court of Appeals on Wednesday in support of a writ vacating the judge's order, EFF, CDT, and the ACLU argue that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. The brief argues that the seizure order was invalid because it threatened to impede access to a broad range of materials protected by the First Amendment.

"The court's theory -- that a state court can order the seizure of Internet domain names regardless of where the site was registered -- is not only wrong but dangerous," said EFF Senior Staff Attorney Matt Zimmerman. "If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site's content is in some way inconsistent with local law, the laws of the world's most repressive regimes will effectively control cyberspace."

As part of his ruling, the judge in Kentucky held that the domain names could be seized if they refused to implement "geographic blocks" to prevent Kentucky users from accessing the material. However, no such reliable filters exist, and even poor ones cost thousands of dollars. Any order requiring their use would unconstitutionally burden First Amendment rights.

"If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," said John Morris, general counsel for CDT. "Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States."

"A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior," said David Friedman, ACLU of Kentucky General Counsel.

For the full amicus brief:
http://www.eff.org/files/filenode/ky_v_domainnames/amicusbriefky.pdf

For more on this case:
http://www.eff.org/cases/commonwealth-kentucky-v-141-internet-domain-names

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

San Francisco - Ten years ago Tuesday, the Digital Millennium Copyright Act (DMCA) was signed into law. In a report released to mark the anniversary, the Electronic Frontier Foundation (EFF) documents the ways in which this controversial law has harmed fair use, free speech, scientific research, and legitimate competition.

"Unintended Consequences: Ten Years Under the DMCA" focuses on the most notorious aspect of the law: its ban on "circumventing" digital rights management (DRM) and "other technical protection measures." Instead of protecting against copyright infringement, this ban has routinely been used to stymie consumers, scientists, and small businesses. "Unintended Consequences" collects reports of the law's most egregious abuses over the last decade. In 2003, for example, Lexmark used the DMCA to block distribution of chips that allow the refilling of laser toner cartridges. In 2006, computer security researchers at Princeton delayed disclosure of a dangerous hidden program in some Sony CDs based on fears of DMCA liability. Meanwhile, the DMCA has not prevented digital piracy. DRM systems are consistently and routinely broken almost immediately upon their introduction.

"Over the last ten years, the DMCA has done far more harm to fair use, free speech, scientific research, and competition than it has to digital piracy. Measured from the perspective of the public, it's been a decade of costs, with no benefits," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The music industry has given up on DRM, and Hollywood now relies on DRM principally to stop innovation that it doesn't like. It's time for Congress to consider giving up on this failed experiment to back up DRM systems with misguided laws."

For "Unintended Consequences: Ten Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca

For more on the DMCA:
http://www.eff.org/issues/dmca

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) Thursday challenged the constitutionality of a law aimed at granting retroactive immunity to telecommunications companies that participated in the president's illegal domestic wiretapping program.

In a brief filed in the U.S. District Court in San Francisco, EFF argues that the flawed FISA Amendments Act (FAA) violates the federal government's separation of powers as established in the Constitution and robs innocent telecom customers of their rights without due process of law. Signed into law earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that either the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court last month.

"The immunity law puts the fox in charge of the hen house, letting the Attorney General decide whether or not telecoms like AT&T can be sued for participating in the government's illegal warrantless surveillance," said EFF Senior Staff Attorney Kevin Bankston. "In our constitutional system, it is the judiciary's role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive's. The Attorney General should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans."

In the public version of his certification to the court, Attorney General Mukasey asserted that the government had no "content-dragnet" program that searched for keywords in the body of communications. However, the government did not deny the dragnet acquisition of the content of communications. In support of its opposition, EFF provided the court with a summary of thousands of pages of documents demonstrating the broad dragnet surveillance of millions of innocent Americans' communications. Eight volumes of exhibits accompanied the detailed summary, including eyewitness accounts and testimony under oath.

"We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law," said EFF Senior Staff Attorney Kurt Opsahl. "Intelligence agencies, telecoms, and the Administration want to sweep this case under the rug, but the Constitution won't permit it."

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

The constitutional challenge is set to be heard on December 2.

For the full brief:
http://www.eff.org/files/filenode/att/immunityoppocorrected.pdf

For the summary of evidence:
http://www.eff.org/files/filenode/att/section1006summary101608_0.pdf

For more on the NSA spying:
http://www.eff.org/issues/nsa-spying

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

San Francisco - Five years after the Recording Industry of America (RIAA) began its massive litigation campaign against music fans suspected of sharing copyrighted music files over the Internet, the campaign has failed to get artists paid or reduce peer-to-peer (P2P) file sharing. Meanwhile, the legal foundation of the campaign is being questioned by several federal courts.

Since September of 2003, the recording industry has leveled legal threats against close to 30,000 American music fans. In a report released today, "RIAA v. The People: Five Years Later," the Electronic Frontier Foundation (EFF) presents a comprehensive overview of the RIAA's litigation campaign and concludes that it is hurting music fans and artists alike, without making a dent in unauthorized file-sharing. The report notes increasing skepticism by courts, academics and state watchdog groups about the RIAA's investigation tactics and legal theories. For example, judges have repeatedly rejected the RIAA's "making available" theory, the notion that merely having a music file in a "shared" folder on a computer constitutes copyright infringement, even if no one ever copies the file. Just last week, a federal judge ordered a new trial for Jammie Thomas, found liable for more than $220,000 because the jury had been instructed erroneously that liability could be premised on this "making available" theory.

"If the RIAA wants to keep suing hundreds of people each month and collecting these huge settlements, it can't take shortcuts," said EFF Staff Attorney Corynne McSherry. "It's not enough to say the law 'could have been' broken and demand thousands of dollars to make the accusation go away. The recording industry must prove its case and show that infringement actually occurred."

EFF's report collects evidence that suggests that the lawsuit campaign has not reduced file sharing. Downloading from P2P networks continues unabated, while some people simply choose to share files in ways that are harder to monitor, like burning and exchanging CDs among friends. EFF continues to call on the RIAA to help artists get paid for their creative work by embracing a voluntary collective licensing program, which would collect a reasonable, regular payment from music fans in exchange for the right to share music freely.

"More than 30,000 Americans have been targeted for legal action by the recording industry without putting a single penny into the pockets of any artists," said EFF Senior Staff Attorney Fred von Lohmann. "At the same time, everyone agrees that P2P file-sharing is more popular than ever. The RIAA's litigation campaign arbitrarily punishes tens of thousands of people for what tens of millions are doing. It's futile and unfair. It is high time that the recording industry let fans pay them a reasonable fee for the P2P file sharing that we all know has become a fact of Internet life."

For the full report "RIAA v. The People: Five Years Later":
http://www.eff.org/wp/riaa-v-people-years-later

For EFF's "A Better Way Forward" paper, discussing voluntary collective licensing alternatives:
http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing

For more on the litigation campaign:
http://www.eff.org/riaa-v-people

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

San Francisco - Recently obtained documents show that last year the Department of Homeland Security quietly reversed a two-decades-old policy that restricted customs agents from reading and copying the personal papers carried by travelers, including U.S. citizens. The documents were made public today by the Asian Law Caucus (ALC) and Electronic Frontier Foundation (EFF), which sued the government under the Freedom of Information Act (FOIA) to obtain policies governing the searches and questioning of travelers at the nation’s borders.

The documents show that in 2007, Customs and Border Protection (CBP) loosened restrictions on the examination of travelers' documents and papers that had existed since 1986. While CBP agents could previously read travelers' documents only if they had "reasonable suspicion" that the documents would reveal violations of agency rules, in 2007 officers were given the power to "review and analyze" papers without any individualized suspicion. Furthermore, whereas CBP agents could previously copy materials only where they had "probable cause" to believe a law had been violated, in 2007 they were empowered to copy travelers' papers without suspicion of wrongdoing and keep them for a "reasonable period of time" to conduct a border search. The new rules applied to physical documents as well as files on laptop computers, cell phones, and other electronic devices.

In July 2008, the Department of Homeland Security made public a new policy on examining travelers' papers and electronic devices that finalized many of the changes first implemented in 2007. The agency did not disclose, however, how much the new policy deviated from rules that had been in place since 1986. The FOIA documents from ALC's and EFF's suit included the original policy, which had been adopted after a group of U.S. citizens challenged the practices of the 1980s as violating First Amendment rights.

"For more than 20 years, the government implicitly recognized that reading and copying the letters, diaries, and personal papers of travelers without reason would chill Americans' rights to free speech and free expression," said Shirin Sinnar, ALC staff attorney. "But now customs officials can probe into the thoughts and lives of ordinary travelers without any suspicion at all."

In February 2008, ALC and EFF sued the Department of Homeland Security for failing to disclose its policies on searching and questioning travelers at U.S. borders. ALC, a San Francisco-based civil rights organization, received more than two dozen complaints since last year from U.S. travelers, mostly of Muslim, South Asian, or Middle Eastern origin, who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, these individuals said that CBP agents examined their books, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. The documents from the FOIA request show that CBP's wide latitude to collect this data attracted significant attention from other law enforcement agencies that sought to access it.

"Your laptop computer likely contains a massive amount of private information such as personal emails, financial data or confidential business records," said EFF Staff Attorney Marcia Hofmann. "The Department of Homeland Security has given its agents increasingly broad authority to search, copy, and store that information. Congress needs to step in now to stop these invasive practices and protect travelers' privacy."

The newly released documents, which total 661 pages, also reveal that:

* In 2004, CBP adopted a directive on responding to "potential terrorists" seeking to enter the United States. The directive, which was revised in 2006, called for intensive questioning and document review of individuals who were flagged as "known or suspected" terrorists.

* CBP appears to have no policy constraining agents from questioning travelers on their religious practices or political views, in spite of the fact that many travelers have complained about being grilled on such First Amendment-protected activities.

* According to the Tucson, Arizona, field office of CBP, a database developed within that office to gather and disseminate intelligence on possible terrorists was to serve as a model for a national database.

ALC and EFF plan to challenge the government's withholding of portions of many of these documents in federal district court this fall.

For the complete set of FOIA documents and more detailed analysis:
http://www.eff.org/cases/foia-litigation-border-searches.

To interview an individual questioned or searched by CBP:
Contact Shirin Sinnar at 415-848-7714 or shirins@asianlawcaucus.org

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Shirin Sinnar
Staff Attorney
Asian Law Caucus
shirins@asianlawcaucus.org

Washington, D.C. - The Electronic Frontier Foundation (EFF) and Public Knowledge have filed suit against the Office of the United States Trade Representative (USTR), demanding information about a secret intellectual property enforcement treaty that the government has put on a fast track to completion.

The United States, Canada, the European Community, Switzerland, Japan, the Republic of Korea, Singapore, Australia, New Zealand, Mexico, Jordan, Morocco, and the United Arab Emirates are currently negotiating the Anti-Counterfeiting Trade Agreement (ACTA). The full text of the treaty remains secret, but a document leaked to the public shows that ACTA could include criminal measures, increased border search powers, and encouragement for Internet service providers to cooperate with copyright holders. Despite the significant impact ACTA could have on consumers and the lack of official information available to the public, treaty proponents want a deal signed by the end of the year.

"ACTA raises serious concerns for citizens' civil liberties and privacy rights," said EFF International Policy Director Gwen Hinze. "This treaty could potentially change the way your computer is searched at the border or spark new invasive monitoring from your ISP. People need to see the full text of ACTA now, so that they can evaluate its impact on their lives and express that opinion to their political leaders. Instead, the USTR is keeping us in the dark while talks go on behind closed doors."

Because of the questions raised by ACTA, EFF and Public Knowledge filed a request under the Freedom of Information Act (FOIA) in June for records on the treaty and the negotiations surrounding the deal. EFF and Public Knowledge later clarified the scope of their request in July in response to concerns raised by the USTR. But the USTR still failed to provide any relevant documents.

"The lack of transparency in this process is incredibly alarming," said Public Knowledge Staff Attorney Sherwin Siy. "Whatever form ACTA eventually takes, we can be sure it will be used to justify further international agreements and laws. The agreement text needs to be made public to ensure that it doesn't encroach upon the rights of users, consumers, and citizens to access knowledge, information, and content."

Earlier this week, EFF and Public Knowledge joined more than 100 public interest organizations from around the world calling for answers about ACTA. The coalition is asking for treaty negotiators to immediately publish the draft text of the agreement, as well as pre-draft discussion papers.

For the full complaint:
http://www.eff.org/files/filenode/EFF_PK_v_USTR/USTRcomplaint.pdf

For more on ACTA:
http://www.eff.org/issues/acta/

Contacts:

Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
gwen@eff.org

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

San Francisco - In an unprecedented victory for cell phone privacy, a federal court has affirmed that cell phone location information stored by a mobile phone provider is protected by the Fourth Amendment and that the government must obtain a warrant based on probable cause before seizing such records.

The Department of Justice (DOJ) had asked the federal court in the Western District of Pennsylvania to overturn a magistrate judge's decision requiring the government to obtain a warrant for stored location data, arguing that the government could obtain such information without probable cause. The Electronic Frontier Foundation (EFF), at the invitation of the court, filed a friend-of-the-court brief opposing the government's appeal and arguing that the magistrate was correct to require a warrant. Wednesday, the court agreed with EFF and issued an order affirming the magistrate's decision.

EFF has successfully argued before other courts that the government needs a warrant before it can track a cell phone's location in real-time. However, this is the first known case where a court has found that the government must also obtain a warrant when obtaining stored records about a cell phone's location from the mobile phone provider.

"Cell phone providers store an increasing amount of sensitive data about where you are and when, based on which cell towers your phone uses when making a call. Until now, the government has routinely seized these records without search warrants," said EFF Senior Staff Attorney Kevin Bankston. "This landmark ruling is hopefully only the first of many. Just as magistrates across the country have begun denying government requests to track cell phones in real-time without warrants, based on arguments first made by EFF, so too do we hope this decision will spark new scrutiny of the government's unconstitutional seizure of stored cell phone location records."

The American Civil Liberties Union (ACLU), the ACLU Foundation of Pennsylvania, and the Center for Democracy and Technology (CDT) joined EFF's brief.

For Wednesday's decision:
http://www.eff.org/files/filenode/celltracking/lenihanorder.pdf

For the full amicus brief in the cell phone records case:
http://www.eff.org/files/filenode/celltracking/LenihanAmicus.pdf

For the magistrate's order:
http://www.eff.org/files/filenode/celltracking/criminalapplicationorder_finalopinion.pdf

For more on cell phone tracking:
http://www.eff.org/issues/cell-tracking

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal court Friday to reject efforts by Echostar to get the names and addresses of every customer that purchased a free-to-air satellite receiver. Echostar claims that the receiver can be modified to pirate DISH satellite TV programming. EFF argues that Echostar's demand, which seeks all purchasers regardless of whether they actually pirated DISH TV, would violate user privacy and leave innocent purchasers vulnerable to bogus legal threats.

The demand for customer records came up in a lawsuit between Echostar, the company behind the DISH satellite TV service, and Freetech, Inc., the manufacturer of Coolsat free-to-air satellite receivers. As part of the suit, Echostar subpoenaed 17 distributors of Coolsat receivers, demanding the names, addresses, phone numbers, email addresses, and other information of every person who purchased a Coolsat receiver over the last five years.

"Innocent customers should not be dragged into federal litigation just because they bought a product that other, less scrupulous purchasers may be hacking for unlawful purposes," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The court should recognize the privacy interests of these customers, especially since Echostar does not need these customer lists in order to have its day in court against Freetech."

In recent years, satellite TV companies, record labels, and movie studios have all engaged in dragnet litigation tactics that threaten individuals with costly lawsuits unless they pay significant financial sums to "settle" the dispute. These mass litigation campaigns leave innocent consumers trapped between paying a "settlement" for something they did not do or facing even higher legal costs to prove their innocence. Satellite TV provider DirecTV pioneered this approach in 2001, threatening more than 120,000 individuals with legal action and commencing more than 24,000 federal lawsuits, often with no evidence other than the fact that the individual purchased multi-purpose devices that could be used for piracy.

"Once the names of Freetech customers are disclosed to Echostar, there may be little that any court can do to protect these people from harassment, settlement demands, and legal expenses," said EFF Senior Staff Attorney Matt Zimmerman. "This may be the last chance the court has to protect the privacy of these individuals."

For the full amicus brief:
http://www.eff.org/files/filenode/echostar_v_freet/EFFamicusEchostarvFreetech.pdf

For more on Echostar v. Freetech:
http://www.eff.org/cases/echostar-v-freetech

Contacts:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Las Vegas - Three students at the Massachusetts Institute of Technology (MIT) were ordered this morning by a federal court judge to cancel their scheduled presentation about vulnerabilities in Boston's transit fare payment system, violating their First Amendment right to discuss their important research.

The Electronic Frontier Foundation (EFF) represents Zack Anderson, RJ Ryan and Alessandro Chiesa, who were set to present their findings Sunday at DEFCON, a security conference held in Las Vegas. However, the Massachusetts Bay Transit Authority (MBTA) sued the students and MIT in United States District Court in Massachusetts on Friday, claiming that the students violated the Computer Fraud and Abuse Act (CFAA) by delivering information to conference attendees that could be used to defraud the MBTA of transit fares. This morning District Judge Douglas P. Woodlock, meeting in a special Saturday session, ordered the trio not to disclose for ten days any information that could be used by others to get free subway rides.

"We wanted to share our academic work with the security community and had planned to withhold a key detail of our results so that a malicious attacker could not use our research for fraudulent purposes," said Anderson. "We're disappointed that the court is preventing us from presenting our findings even with this safeguard."

Vulnerabilities in magnetic stripe and RFID card payment systems implemented by many urban transit systems are generally known. The student research applied this information to the specific case of Boston's Charlie Card and Charlie Ticket, and the project earned an A from renowned computer scientist and MIT professor Dr. Ron Rivest.

The court relied on a federal law aimed at computer intrusions in issuing its order, holding that even discussing the flaws at a public conference constituted a "transmission" of a computer program that could harm the fare collection system.

"The court's order is an illegal prior restraint on legitimate academic research in violation of the First Amendment," said EFF Civil Liberties Director Jennifer Granick. "The court has adopted an interpretation of the statute that is blatantly unconstitutional, equating discussion in a public forum with computer intrusion. Security and the public interest benefit immensely from the free flow of ideas and information on vulnerabilities. More importantly, squelching research and scientific discussion won't stop the attackers. It will just stop the public from knowing that these systems are vulnerable and from pressuring the companies that develop and implement them to fix security holes."

This case is part of EFF's Coders' Rights Project, launched just this week to protect programmers and developers from legal threats hampering their cutting-edge research. EFF will seek relief for the researchers in the courts.

For the full temporary restraining order:
http://www.eff.org/files/filenode/MIT%20students%20TRO.pdf

For more on the Coders' Rights Project:
http://www.eff.org/issues/coders

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) has filed friend-of-the-court briefs in two key electronic privacy cases that threaten to expand the government's spying authority.

In the first case, Bunnell v. Motion Picture Association of America (MPAA), EFF filed a brief with the 9th U.S. Circuit Court of Appeals arguing that federal wiretapping law protects emails from unauthorized interception while they are temporarily stored on the email servers that transmit them. This case was brought against the MPAA by the owners and operators of TorrentSpy, a search engine that let Internet users locate files on the BitTorrent peer-to-peer network. After a business dispute, one of TorrentSpy's independent contractors hacked into the company email server and configured it to copy and forward all incoming and outgoing email to his personal account and then sold the information to the MPAA. However, the federal district court ruled that because the emails were stored on the mail server for several milliseconds during transmission, they were not technically "intercepted" under the federal Wiretap Act. In its amicus brief filed Friday, EFF argues that this dangerous ruling is incorrect as a matter of law and must be overturned in order to prevent the government from engaging in similar surveillance without a court order.

"The district court's decision, if upheld, would have dangerous repercussions far beyond this single case," said EFF Senior Staff Attorney Kevin Bankston. "That court opinion -- holding that the secret and unauthorized copying and forwarding of emails while they pass through an email server is not an illegal interception of those emails -- threatens to wholly eviscerate federal privacy protections against Internet wiretapping and to authorize the government to conduct similar email surveillance without getting a wiretapping order from a judge."

The second case concerns a request by the Department of Justice (DOJ) to a federal magistrate judge in Pennsylvania for authorization to obtain cell phone location tracking information from a mobile phone provider without probable cause. The magistrate instead demanded that the DOJ obtain a search warrant based on probable cause, and the DOJ appealed that decision to the federal district court in the Western District of Pennsylvania. In an amicus brief filed Thursday, EFF urged the district court to uphold the magistrate's ruling and protect cell phone users' location privacy.

"Location information collected by cell phone companies can provide an extraordinarily invasive glimpse into the private lives of cell phone users. Courts have the right under statute -- and the duty under the Fourth Amendment -- to demand that the government obtain a search warrant based on probable cause before seizing such sensitive information," said Bankston. "This is only the latest of many cases where EFF has been invited to brief judges considering secret surveillance requests that aren't supported by probable cause. We hope this court recognizes the serious Fourth Amendment questions that are raised by warrantless access to cell phone location information and affirms the magistrate's denial of the government's surveillance request."

The American Civil Liberties Union (ACLU), the ACLU-Foundation of Pennsylvania, and the Center for Democracy and Technology (CDT) also joined EFF's brief.

For the full amicus brief in Bunnell v. MPAA:
http://www.eff.org/files/filenode/Bunnell_v_MPAA/BunnellAmicus.pdf

For the full amicus brief in the cell phone records case:
http://www.eff.org/files/filenode/celltracking/LenihanAmicus.pdf

For more on cell phone tracking:
http://www.eff.org/issues/cell-tracking

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

San Francisco - Hours before the Federal Communications Commission (FCC) is expected to take action against Comcast for violating the FCC's net neutrality principles, the Electronic Frontier Foundation (EFF) is releasing "Switzerland," a software tool for customers to test the integrity of their Internet communications.

The FCC action, expected later today, is a response to formal complaints regarding efforts by Comcast to interfere with its subscribers' use of BitTorrent to share files over the Internet. These interference efforts were first documented and disclosed in October 2007 by EFF, the Associated Press, and a concerned Internet user, Robb Topolski. EFF subsequently urged the FCC to declare Comcast's efforts inconsistent with the Commission's 2005 "Internet Policy Statement," which sets a benchmark for neutral treatment of Internet traffic.

"The sad truth is that the FCC is ill-equipped to detect ISPs interfering with your Internet connection," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "It's up to concerned Internet users to investigate possible network neutrality violations, and EFF's Switzerland software is designed to help with that effort. Comcast isn't the first, and certainly won't be the last, ISP to meddle surreptitiously with its subscribers' Internet communications for its own benefit."

"Until now, there hasn't been a reliable way to tell if somebody -- a hacker, an ISP, corporate firewall, or the Great Firewall of China -- is modifying your Internet traffic en route," said Peter Eckersley, EFF Staff Technologist and designer of Switzerland. "The few tests available have been for narrow and specific kinds of interference, or have required tremendous amounts of advanced forensic labor. Switzerland is designed to make general-purpose ISP testing faster and easier."

Part of EFF's "Test your ISP" project, Switzerland is an open source, command-line software tool designed to detect the modification or injection of packets of data by ISPs. Switzerland detects changes made by software tools believed to be in use by ISPs such as Sandvine and AudibleMagic, advertising systems like FairEagle, and various censorship systems. Although currently intended for use by technically sophisticated Internet users, development plans aim to make the tool increasingly easy to use.

For more information and to download the Switzerland software:
http://www.eff.org/testyourisp/switzerland

For more about EFF's "Test Your ISP" Project:
http://www.eff.org/testyourisp

Contacts:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Peter Eckersley
Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Washington, D.C. - The U.S. Senate this afternoon passed the FISA Amendments Act, broadly expanding the president's warrantless surveillance authority and unconstitutionally granting retroactive immunity to telecommunications companies that participated in the president's illegal domestic wiretapping program. The House of Representatives passed the same bill last month, and President Bush is expected to sign the legislation into law shortly.

"It is an immeasurable tragedy that just after its return from the Fourth of July holiday, the Senate has chosen to pass a bill that betrays the spirit of 1776 by radically expanding the president's spying powers and granting immunity to the companies that colluded in his illegal surveillance program," said Senior Staff Attorney Kevin Bankston of the Electronic Frontier Foundation (EFF). "This so-called compromise bill represents a shameful capitulation to the overreaching demands of an imperial president. As Senator Leahy put it in yesterday's debate, the retroactive immunity provision of the bill upends the scales of justice and makes Congress and the courts handmaidens to the White House's cover-up of its illegal surveillance program."

The FISA Amendments Act won passage after several amendments intended to remove or modify the bill's immunity provision failed to pass. One amendment, offered by Senator Christopher Dodd, would have stripped immunity from the bill altogether. Another, introduced by Senator Jeff Bingaman, would have stayed the pending cases against the telecoms and delayed the implementation of the immunity provision until the Inspectors General of the Department of Justice and other U.S. government intelligence agencies finished their investigation into the spying program, thereby preventing Congress from granting immunity in the dark.

"We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president's illegal surveillance is not over," said EFF Senior Staff Attorney Kurt Opsahl. "Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans' rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future."

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

For more information on the NSA spying:
http://www.eff.org/issues/nsa-spying

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Washington, D.C. - On Wednesday, June 25, at 9 a.m., members of the U.S. Senate Judiciary hearing will hold a public hearing on laptop searches and other privacy violations faced by Americans at the U.S. border.

Senior Staff Attorney Lee Tien of the Electronic Frontier Foundation will appear at Wednesday's hearing to urge more congressional investigation and oversight of the Department of Homeland Security's border search practices and policies. While the U.S. Supreme Court has ruled that customs and border agents can perform "routine" searches at the border without a warrant or even reasonable suspicion, increasingly Americans are complaining about random and invasive searches of their laptops, cell phones, and other digital devices as they come home from overseas travel. In a typical search, U.S. border officials will turn on the device and then open and review files. If agents see something of interest, they may copy data or confiscate the device -- even if the traveler is not suspected of criminal activity.

"These ongoing baseless searches of electronic devices at America's borders are not 'routine,' they're unreasonable," said Tien. "It's hard to imagine something more invasive than a wholesale copying of private files from a personal computer. We need Congress and the courts to recognize a standard for digital searches and seizures at the border that protects the privacy, property, and free speech rights of Americans in the Information Age."

WHO:
Lee Tien
Senior Staff Attorney Electronic Frontier Foundation

WHAT:
"Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel"
U.S. Senate Judiciary Subcommittee on the Constitution

WHEN:
9 a.m.
Wednesday, June 25

WHERE:
Dirksen Senate Office Building
Room 226
Washington, D.C.

For more on the hearing:
http://judiciary.senate.gov/hearing.cfm?id=3420

Contacts:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org