What Obama Can and Should Do to Stop Telecom Immunity

Deeplink by Kevin Bankston

Yesterday, the New York Times ran the story "Early Test for Obama on Domestic Spying Views", describing the national security-related issues facing the incoming Obama Administration. Chief among them is the issue of immunity for telecoms that illegally assisted in the National Security Agency's warrantless wiretapping program:

In perhaps the most critical test, civil liberties groups that are suing major phone companies that took part in the N.S.A. program are waiting to find out whether a federal judge will throw out the lawsuits based on immunity granted by Congress in June.

The Justice Department has already moved to take advantage of the immunity provision by certifying in court that the phone companies were complying with a presidential order. But the Electronic Frontier Foundation, a civil liberties group that has taken the lead in the lawsuit, maintains that Congress acted beyond its powers.

A hearing is set for Dec. 2. Cindy Cohn, legal director for the foundation, said that as the case moved forward the new administration could act to withdraw the immunity certification made by the Bush Justice Department.

“Nothing will be over by Jan. 20,” when Mr. Obama is inaugurated, Ms. Cohn said.

As President, it will be up to Obama whether or not the Administration wants to continue seeking dismissal of the lawsuits against AT&T and other telecoms based on the immunity provisions of the FISA Amendments Act (FAA). Specifically,

President Obama can end the immunity process. Consistent with his previous opposition to immunity — then-Senator Obama voted in favor of Senator Dodd's amendment to strip the immunity provisions out of the FAA altogether — Obama could instruct his new Attorney General to withdraw the government's motion to dismiss the lawsuits based on the immunity statute. Or,

President Obama can temporarily freeze the immunity process until he has learned all the details about the NSA program. Consistent with his support of Senator Bingaman's proposed FAA amendment to delay implementation of the immunity provisions, Obama could instruct his new Attorney General to ask the court for a temporary stay of the immunity proceedings. That would give the Administration time to review the classified details of the NSA program as well as the FAA-mandated reports about the program that are expected by this July from the Inspectors General of the Department of Justice, the NSA, and other agencies involved in the program. After having reviewed all the facts, the new administration can then re-evaluate whether it wants to continue to press for immunity in court, or drop its motion to dismiss and let the cases against the telecoms continue. Or,

President Obama can choose not to appeal if the immunity statute is found unconstitutional. If, after the hearing on December 2nd, Chief Judge Vaughn Walker of the federal Northern District of California agrees with EFF that the immunity statute is unconstitutional and denies the government's motion to dismiss, Obama could instruct his new Attorney General to not appeal that decision to the Ninth Circuit Court of Appeals.

All of these are things Obama could do — on his own and without any help from Congress — to stop the implementation of the immunity scheme that he repeatedly opposed during his presidential campaign.

These recommendations aren't EFF's alone: as part of the transition roadmap published yesterday by a broad coalition of groups including EFF, seventeen different civil liberties organizations signed onto national security surveillance recommendations that included the proposition that President Obama should "[d]irect the Attorney General to withdraw the government’s motion to dismiss pending privacy litigation brought against telecommunications carriers for assisting with unlawful warrantless surveillance, or seek a stay of those proceedings until such time as the Attorney General, based on review of the Inspectors’ General reports required by the FISA Amendments Act, determines that a grant of immunity is appropriate."

[Read the entire post]

EFF Joins with Coalition to Provide Policy Roadmap to Next President and Congress

Deeplink by Kevin Bankston

A coalition of more than 25 organizations, including EFF, yesterday released "Liberty and Security: Recommendations for the Next Administration and Congress", a comprehensive catalogue of policy recommendations on a range of critical civil liberties issues.

This collaboratively-created transition roadmap, coordinated by our friends at the Constitution Project, contains 20 chapters providing policy recommendations on a wide variety of issues, from Guantanamo Bay to warrantless wiretapping. EFF has signed on as an ally in support of the recommendations in eleven of those chapters, concerning issues within EFF's mission to protect free speech and privacy on the electronic frontier.

Most importantly, EFF has joined as a supporter of all the recommendations made in the area of "Secrecy, Surveillance, and Privacy", covering goals such as reigning in NSA spying, updating the Electronic Communications Privacy Act, and reforming the State Secrets privilege (consistent with our Privacy Agenda for the New Administration), as well as combating excessive classification and urging greater transparency in government (as previously described in our Transparency Agenda for the New Administration).

After the jump, you can find links to PDFs of all of the individual chapters of the transition catalogue where EFF has signed on as an ally; the entire document is available here [pdf]. We hope that you — and the next President and Congress — find them enlightening.

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RIAA Wins, Campuses Lose as Tennessee Governor Signs Campus Network Filtering Law

News Update by Richard Esguerra

Last week, the RIAA celebrated the signing of a ridiculous new law in Tennessee that says:

Each public and private institution of higher education in the state that has student residential computer networks shall:

[...]

[R]easonably attempt to prevent the infringement of copyrighted works over the institution's computer and network resources, if such institution receives fifty (50) or more legally valid notices of infringement as prescribed by the Digital Millennium Copyright Act of 1998 within the preceding year.

While the entertainment industry failed to get "hard" requirements for universities in the Higher Education Act passed by Congress earlier this year, the RIAA succeeded in Tennessee (and is pushing in other states) with this provision that gives Big Content the ability to hold universities hostage through the use of infringement notices. Moreover, the new rules will cost Tennessee a pretty penny -- in the cost review attached to the Tennessee bill, the state's Fiscal Review Committee estimates that the new obligations will initially cost the state a whopping $9.5 million for software, hardware, and personnel, with recurring annual costs of more than $1.5 million for personnel and maintenance. Not a penny of this will go to artists, nor to any of the record labels RIAA represents.

Unfortunately, the entertainment industry lobby seems to be succeeding, bit-by-bit, in persuading legislators to coerce universities into buying "infringement suppression" technologies -- expensive technologies that won't stop file sharing on campus networks. Even if the technologies did work (magical thinking in light of encryption), does anyone think they would somehow force students back into record stores or the iTunes Store? After all, today students on campus can swap multiple gigabytes hand-to-hand for pennies (see, e.g., blank DVD-R disks, or the price of portable hard drives, as well as the ease of copying from iPod to iPod).

It makes no sense to force universities to spend millions on technologies that will hobble innovation on campus while failing to stop file-sharing. Why not use those millions to compensate creators and copyright owners, and thereby make file-sharing legal, instead? Now, more than ever, the universities need to come forward with a collective licensing proposal that will protect their campus communities and their own bottom lines.

Meanwhile, universities under the gun should make sure to shun the hype of network filtering when possible and seek solutions more amenable to teaching and academic freedom -- our whitepaper on copyright infringement technologies on campus networks is a good place to start. For more detail, EDUCAUSE has in-depth resources on P2P, file sharing, and the Higher Education Act.

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Judge Allows Bogus Jones Day Trademark Claims to Go Forward

Legal Analysis by Corynne McSherry

In a decision that could have significant negative consequences for online speech and commerce, Judge John Darrah of the Northern District of Illinois has refused to dismiss some of the most preposterous trademark claims we've ever seen (and that's saying something).

The defendant in the case, BlockShopper.com, provides information about recent real estate transactions, including publicly available information about buyers and sellers. After BlockShopper published articles referring to two Jones Day attorneys who had recently bought homes (with links to their bios on the Jones Day firm website), the law firm sued BlockShopper, alleging that using the term "Jones Day" to refer to the firm in a headline and linking to the Jones Day website could lead to confusion over the sponsorship of the site. With amicus support from EFF, Public Citizen, Public Knowledge and the Citizen Media Law Project, BlockShopper.com argued that the uses were fully protected by fair use and the First Amendment, and that no Internet user would imagine that Jones Day was affiliated with or sponsored BlockShopper based solely on a link or a reference to the firm in a headline.

This case was a perfect candidate for early dismissal. It is based on the erroneous belief that trademark owners can prevent others from using their marks, accurately, in the ordinary course of communication, to refer to the owners themselves. Trademark law has never given a mark owner veto power over all uses of its mark, and for good reason. Online and off, trademarks—words, symbols, colors, etc—are also essential components of everyday language, used by companies, consumers and citizens to share information. If Jones Day were correct, no news site or blog could use marks to identify markholders, or links to point to further information about the markholders, without risking a lawsuit. But that is not the law, and Jones Day should know it.

We're disappointed that a respected law firm like Jones Day started this outrageous litigation, but we're even more disappointed that the court didn't take this opportunity to nip it in the bud. The court said that it could not end the case at this stage because it is required to take Jones Day's allegations as true. That's not precisely so; on an early motion like BlockShopper's, a court is required to accept facts as true, but not (implausible) legal conclusions. That's because deciding the facts is up to a jury. But interpreting the law is exactly what the judge is supposed to do, and it's disheartening to see the court let this case go any further.

At any rate, by allowing the case to go forward, the court has made BlockShopper's defense much more expensive, even if BlockShopper is confident (as it should be) that it will win in the end. Thus, the court has sent a signal to news sites and blogs everywhere: no matter what the Lanham Act says, if you link to a trademark owner's site, or use a mark in a headline or post, you'd better have a pretty decent legal budget.

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FCC Unanimously Approves Use of Television "White Spaces"

News Update by Richard Esguerra

Advocates for the opening of the "white spaces" were rewarded with a resounding victory earlier this month when the FCC unanimously voted in favor of allowing unlicensed use of the unused spectrum between TV channels. (For a more complete explanation of white spaces, check out our earlier blog post.) While FCC Chairman Kevin Martin had telegraphed his support for white spaces at the conclusion of technical trials, the landslide vote opens doors for innovation and is a victory for the public over the entrenched media incumbents.

However, it's important to consider the remaining variables in play. The end goal is better wireless broadband access in America -- more Internet, in more places, at lower cost. While innovators have been given a significant green light by the FCC through this vote, there are other milestones to be met and obstacles to overcome: a possible legal challenge from the broadcasters, full implementation of spectrum avoidance technology, and FCC certification of consumer-ready devices. These will all have an effect on the amount of time it takes for white space devices to reach consumers.

Regardless, the FCC's unanimous approval is a major win for the public. It's easy to imagine the FCC playing it safe and succumbing to the incumbent broadcasters instead, closing the gates on improved wireless technology at the outset. But the current Commission's commitment to innovation, its investment in researching the technology, and the efforts of public interest groups and regular folks speaking out made the difference and is paving the way for a better future in wireless broadband.

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A Transparency Agenda for the New Administration

Legislative Analysis by Tim Jones

This is the final post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on government transparency. Previously, we've written about surveillance and intellectual property.

The past eight years have seen an increase in government secrecy and a decrease in government accountability. These factors have led to record levels of distrust in our government. Here are three steps the new leadership should take to begin to restore that trust:

1. Leverage new technology to provide authoritative government data. It's notoriously difficult or impossible to find and manage data on legislation (both passed and proposed), on election day polling locations, on the boundaries of Congressional districts, and on government spending. All of these should be made available online for the federal and state levels, in open formats, with no intellectual property restrictions on their use, distribution or ownership.

2. Review the entire information-classification infrastructure and reform it to create meaningful oversight. This system has been repeatedly abused by the White House. It leaves far too much discretion in administration hands, allowing them to "capture" legislators who want to be "in the loop," forbidding them from conducting any serious investigation into the administration's illegal or questionable practices.

3. Restore strength to the Freedom of Information Act (FOIA). Encourage government agencies to produce documents, instead of withholding documents under overbroad pretenses. This will allow the government to assist in uncovering misconduct. A good start would be to re-introduce and pass the Faster FOIA Act.

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An Innovation Agenda for the New Administration

Legislative Analysis by Tim Jones

This is the second post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on innovation, fair use and intellectual property. On Friday, we posted about privacy and surveillance, and tomorrow we'll discuss government transparency.

Today's intellectual property (IP) laws frequently fail to strike the proper balance between the rights of creators, copyright holders and the public. Powerful companies interested in maximizing their investments in intellectual property have run roughshod over the people's fair use rights. This has been especially problematic given the explosion of user generated content sites like YouTube, which celebrate creativity and innovation and actively encourage a remix culture. It is our hope that our government leaders will work to bring balance to the law. Here are some suggestions to get things started:

1. Repair the Digital Millennium Copyright Act (DMCA). Eliminate the ability of copyright holders to get statutory damages for noncommercial violations of copyright laws. Require proof of actual damages prior to any award based on copyright liability. Raise the requirements for content owners to receive preliminary injunctions against technologies in copyright cases. Congress should pass the FAIR USE Act and the Orphan Works Act.

2. Reform the U.S. Patent and Trademark Office (PTO), emphasizing its role to promote, rather than impede, innovation. Patents, by constitutional design, are supposed to "promote the Progress of Science and useful Arts." All too often today, patents are used to hold innovation hostage. Patent office procedures should be reviewed to ensure that patent examiners are being given the tools and incentives they need to challenge overbroad patent applications. Simultaneously, avenues for post-grant administrative review procedures should be broadened, ensuring that public interest groups can continue to raise post-grant challenges without restrictive time limitations on their participation.

3. Don't let the content industry use our government resources to pressure universities and others to participate in their intimidating peer-to-peer dragnet operations.

4. Show caution before regulating the use of technologies that limit consumer choice or consumer rights. In the United States and abroad, our government should advocate for policies that promote the ability of consumers to use technology they purchase however they choose.

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The WIPO Broadcasting Treaty: Back from the Dead?

Commentary by Gwen Hinze

Last year, we reported that WIPO Member States had decided to postpone holding an intergovernmental diplomatic conference to adopt the controversial Broadcasting Treaty. For us, and the many others who had expressed concern about the proposed treaty, this was welcome news. But it was short-lived. In 2008, the Broadcasting Treaty is being pushed by its supporters with a vengeance. Surprisingly, the US seems to have reversed its most recent position, and expressed support for continuing treaty negotiations so long as it includes webcasting.

Despite the fact that there has been no agreement on fundamental elements of the treaty after over 10 years of negotiations, in March there was a concerted move to resurrect negotiations, led by the European Community and Japan, with support from a set of other countries. At the September 2008 WIPO General Assembly meeting, a number of WIPO national delegates expressed support for finalizing treaty negotiations. Then in October, the long-standing WIPO Copyright Committee Chair, Mr. Jukka Liedes of Finland, produced an "informal paper" describing the process of negotiations so far, and proffered several options which would result in continuing discussions and finalization of the treaty.

Yesterday, the Broadcasting Treaty was the main topic of discussion at this week's meeting of the WIPO Standing Committee on Copyright in Geneva. In spite of the enthusiastic efforts of treaty supporters, consensus still seems quite a long way off. Several country delegations (France on behalf of the European Community, Japan, El Salvador and China) expressed support for concluding a treaty. Others repeated that the treaty must be limited to protection of signals and not grant exclusive rights, which the current draft does (Pakistan on behalf of the Asia Group, the Africa Group, South Africa, India. the US).

As in previous meetings, the most contentious issue was whether the treaty should give broadcasters and cablecasters exclusive rights over Internet retransmissions of broadcast and cablecast content. The Africa Group, China, Nigeria, India, South Africa and Egypt all opposed inclusion of webcasting or extension to Internet transmissions. Japan, the US, Australia and the Ukraine supported the extension of the treaty to the Internet.

The US delegation said that if discussions are to continue, the treaty should include webcasting. This is a reversal of the United States' most recent position, and harks back to a May 2006 meeting, where it was agreed to take out webcasting and divide the treaty into two tracks -- first, a treaty on broadcasting and cablecasting, and then second, an instrument dealing with broadcasting on the Internet -- webcasting or "netcasting", as the US had wanted, and "simulcasting", as supported by the EU.

Yesterday, the United States' delegation stated it had agreed only temporarily to limit the scope of the treaty to traditional broadcasting entities, provided that simulcasting was also excluded, and with the failure to move to a diplomatic conference in 2007, any agreement on the two-track approach had now expired. In other words, the US apparently wants to go back to 2006 and bring webcasting or "netcasting" back in to the treaty. Finally, in case there was any doubt, the North American Broadcasters' Association repeated that their strong preference is for a treaty with exclusive rights for broadcasters and extending to Internet retransmissions.

EFF and a diverse group of public interest NGOs, libraries and major U.S. tech industry players continue to oppose the current treaty draft because it's not limited to signal protection, but would instead create a new layer of exclusive intellectual property rights for broadcasters and cablecasters that would harm access to knowledge and consumers' existing rights under national copyright law, endanger citizen broadcasting on the Internet, raise competition policy concerns and stifle technological innovation. Here and here is the joint statement presented by that group to WIPO this week. And here's EFF's briefing paper on our concerns with the current treaty draft.

Discussions at WIPO wound up today, after heated discussions on the issue of copyright exceptions and limitations. Member states agreed to keep the Broadcasting Treaty on the Copyright Committee's agenda and asked WIPO to convene an information session at the next meeting in May to discuss outstanding issues. The Committee did not make a decision on the various options presented by the Chair in his informal paper. Perhaps most importantly, Member States affirmed the mandate previously provided by the WIPO General Assembly -- that the treaty must be framed on a signal-based approach, and that the convening of a diplomatic conference could be considered only after agreement has been achieved on the treaty's objectives, specific scope and objectives. We'll be back shortly with the full text of the final adopted conclusions of the meeting and our analysis of this week's key issue, copyright exceptions and limitations for the visually impaired, libraries and archives, education and innovative services.

(With many thanks to Sherwin Siy of Public Knowledge and Judit Rius Sanjuan of KEI for their notes of delegates' interventions.)

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A Privacy Agenda For The New Administration

Legislative Analysis by Tim Jones

This is the first post in a three part series directed at restoring some of the civil liberties we've lost over the past eight years. Today's post is about our privacy rights. We'll follow this up early next week with our thoughts on intellectual property rights and government transparency.

As new leaders prepare to move into the White House and Congress over the next few months, we'd like to call on them to restore Americans' privacy rights. Here's a little "wish list" we'd like to put forward:

1. Repeal or repair the FISA Amendments Act (FISAAA). There are a great many flaws in FISAAA, which was passed last Summer after a long and difficult fight. Most significantly, the provisions granting retroactive immunity from litigation to telecommunications companies complicit in the Bush Administration's warrantless wiretapping program should be repealed so that the millions of Americans who have been illegally surveilled can have their day in court.

2. Reform the Electronic Communications Privacy Act (ECPA). ECPA is a major law restricting the government's ability to surveil citizens and is in desperate need of reform. It has become dangerously out-of-sync with recent technological developments and Americans' expectation of online privacy. In particular, the privacy of personal data should not depend on how long an ISP has stored that data or whether the data is stored locally or remotely.

3. Reform the State Secrets Privilege. The State Secrets Privilege has been radically abused by the Bush Administration, particularly to shield its electronic surveillance activity from judicial review. The new administration should voluntarily reduce its use of the privilege, and work with Congress to reform the privilege and insure that claims of state secrecy are subject to independent judicial scrutiny.

4. Scale back the use of National Security Letters to gag and acquire data from online service providers. The REAL ID Act, with its requirement that Americans carry a national ID card, has been rejected by many U.S. states and should be federally repealed. Large-scale government data collection and data-mining projects like Automated Targeting System (ATS) should be reduced or eliminated. Invasive border-searches of electronic devices should be stopped.

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global minilinks for 2008-11-06

miniLinks by Danny O'Brien

• French Senate Votes for Three Strikes
  The bill still has to pass the National Assembly, however — and faces a clash with developing European law.
• No Clean Feed - Stop Internet Censorship in Australia
  The battle against the Australian goverment's plans to install compulsory filters on all Internet traffic grows in strength. Electronic Frontiers Australia offers action items for worried Aussie Net users.
• Circumvention in New Zealand
  Content Agenda summarizes what's been happening in NZ copyright law.
• Join the Public Domain Calculators
  The Open Knowledge Foundation is working on a system to determine whether works are in the public domain in your country or not. Join volunteers in Argentina, Belgium, Canada, Chile, Italy, Norway, Philippines, Sweden, Switzerland, United Kingdom, United States and add your country to the calculator.
• Internet and Freedom in Egypt
  Egyptian bloggers talk about how the Net and free speech fare in Turkey.
• UK Net Users Wrongly Accused of File-sharing Infringements
  British games companies are sending threatening letters to Internet users who have never touched a computer game.
• Linking Alone is Not Defamation in Canada, Court Declares
  The British Columbia Supreme Court asserts that websites linking to a document are not "publishing" the document for purposes of libel law. One of the defendants, p2pnet, comments.

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