Hey, Texas Instruments -- Stop Digging Holes

Texas Instruments (TI) ultimately failed to stand behind their misguided claim that calculator hobbyists violated copyright law by having public, online discussions about techniques to get more functionality from TI calculators. Yet the company continues to dig itself into new holes by issuing more improper take-down letters.

Several weeks ago, TI sent a barrage of letters claiming that the calculator enthusiasts' discussions about the discovery of calculator operating system signing keys -- and the keys themselves -- violated the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). TI demanded that the posts be taken down. EFF sent a letter to TI on behalf of three such bloggers, explaining why the company's legal claim was wrong, and stated that the men would restore their posts absent legitimate objection from the company. TI ignored both the letter and the deadline, and so the posts are now back online. Mr. Smith's post is here, Mr. Wilson's here, and Mr. Cross's here. You can find EFF's letter to TI here.

While it's no surprise that TI gave up when it found itself in the legal wrong, it is scandalous that the company continues to send its improper demands to other bloggers and hosting companies. In fact, TI has sent an identical take-down demand to Mr. Smith's university complaining about the same OS keys having been posted on our client's student webpage, and demanding that the school take the materials down from that URL. Today, Mr. Smith filed a DMCA Section 512 counternotice to continue the fight. Hopefully other calculator hobbyists who have received TI's baseless demands will consider standing up against the erroneous claim that reverse-engineered OS signing keys are illegal numbers that can not be published, discussed or linked to.

[Permalink]

Ninth Circuit Grants Stay in EFF Case Seeking Telecom Lobbying Documents

Today the Ninth Circuit postponed a court-ordered deadline for the Office of the Director of National Intelligence and the Department of Justice to turn over documents concerning a legislative push to give telecom carriers legal immunity for their participation in the government's warrantless surveillance program.

The order comes after three unsuccessful attempts by the government to delay disclosure of the documents under the Freedom of Information Act (FOIA) pending the Solicitor General's decision whether or not to appeal.

In its fourth request for a stay, the government indicated that it will appeal a couple aspects of the district court's order to release the documents, namely the court's decision that the agencies must release certain communications exchanged within the Executive Branch and the identities of representatives of telecom carriers within the documents responsive to EFF's FOIA requests.

The Solicitor General has not yet decided whether to appeal other parts of the order, including the district court's determination that the government must release communications between the agencies and members of Congress. Today's order from the Ninth Circuit gives the government until November 9 to decide.

The Ninth Circuit will consider the government's appeal on an expedited schedule, with oral argument slated for the week of January 11, 2010.

The practical effect of today's order is that important documents shedding light on the telecoms' push for retroactive immunity will not be available to the public as Congress debates whether to repeal that immunity, at least until January.

[Permalink]

UPDATED: Once Again, Government Moves to Delay Release of Telecom Lobbying Documents

This evening, the Director of National Intelligence and the Department of Justice filed yet another emergency motion with the Ninth Circuit, asking for a stay of the deadline to release telecom immunity lobbying documents, less than 24 hours before the documents are due to be released to the public.

Almost simultaneously, a report appeared on Politico.com, claiming that the government will be releasing some documents, while fighting in court to hide the remainder. Despite this report, the government's motion seeks to delay disclosure of all the documents, and no new documents have been released just yet.

For those following this saga, this is deja vu all over again. Last week, when the documents were due to be turned over by Friday, October 9, the government asked the Court of Appeals for a stay, a motion that was denied by the Ninth Circuit in short order. Later that same afternoon, the government asked Federal District Court Judge Jeffrey White for an additional delay, a request that Judge White ultimately denied, giving the government a new deadline of Friday, October 16, by 4 p.m. Pacific time.

This has been a long fight -- since 2007, EFF has been working towards the release of these records after media reports revealed an extensive lobbying campaign seeking immunity for telecoms that participated in the government's unlawful surveillance program. As we've said before, we look forward to receiving the documents and making them public so that they can play a much-needed role in the active congressional debate over repealing telecom immunity.

UPDATED October 16, 3:15pm: Friday morning, EFF filed opposition to the government's motion. The government then filed a reply.

3:50pm: In order to give itself more time to decide whether to grant the requested stay, the Ninth Circuit Court has extended the deadline for disclosure of documents another week, until 5pm PT on Friday October 23.

[Permalink]

Federal Court Denies Government Attempt to Delay Release of Telecom Records. Again.

Today a federal district court denied the government's latest emergency motion asking for a 30-day stay in last Friday's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. The new deadline is October 16, at 4 p.m. Pacific time. We sought the records pursuant to the Freedom of Information Act.

On September 24, Judge Jeffrey White had ordered the Director of National Intelligence and Department of Justice to turn over many of the records we requested by Friday, October 9, 2009. Last week, the agencies asked him to postpone his order while the government decided whether or not to appeal, which EFF opposed. Judge White denied the motion.

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Judge White also noted that, even if the government had actually appealed, "in order to obviate the need for the parties to appear once again before this Court before seeking the same redress on appeal, the Court has addressed the pertinent factors it would analyze in denying a motion to stay this action pending appeal," and found the "equities weigh in favor of denial of a stay."

In particular, the Court noted the "current administration’s pointed directive on transparency in government, and the public’s renewed interest in the question of legal immunity for the telecommunications companies that participated in the warrantless wiretapping program while considering currently pending legislation repealing the amendments to FISA, the Court finds that the public interest lies in favor of disclosure."

[Permalink]

UPDATE: Appeals Court Denies Government Motion to Delay Release of Telecom Lobbying Documents

Today, the 9th U.S. Circuit Court of Appeals denied the government's emergency motion asking for a 30-day stay in today's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. A district court imposed that deadline in our long running Freedom of Information Act case. The government filed another emergency motion in the district court this afternoon following the 9th Circuit decision, again asking for stay pending its decision on whether or not to appeal. You can find more background in yesterday's blog post and we'll post any more information as soon as we get it.
UPDATE: The district court held the matter over until next week, when it will decide whether a further stay is warranted.

[Permalink]

UPDATE: Government Files Emergency Motion to Delay Release of FOIA Documents

A couple weeks ago we told you about a victory in our long-running Freedom of Information Act (FOIA) litigation for documents detailing telecommunications carriers' lobbying efforts to get off the hook for their role in the government's warrantless electronic surveillance of millions of ordinary Americans. On September 24, a federal judge ordered the Director of National Intelligence and Department of Justice to turn over many of the records we requested by Friday, October 9, 2009.

EFF began working to force the release of the records in 2007 after media reports revealed an extensive lobbying campaign seeking immunity for telecoms that participated in the government's unlawful surveillance program. As Judge Jeffrey White noted, his decision "is consistent with" President Obama's directive on FOIA, issued on his first full day in office, which adopted a presumption in favor of disclosure and promised “a new era of open government.”

Nevertheless, after Judge White ordered disclosure of the documents, the agencies asked him to postpone his order for 60 days while the government ruminated over the pros and cons of appealing to the Ninth Circuit, which EFF opposed. The agencies also asked the court to reconsider the decision. Yesterday, Judge White denied both of the government's motions, clearing the way for the government to release the documents tomorrow, as originally ordered. So far, the government hasn't appealed, and the clock is ticking.

We look forward to receiving the documents tomorrow so that they can be part of the active congressional debate over repealing telecom immunity. Assuming the government doesn't attempt further delay tactics, we intend to post the files here as soon as we get them. Stay tuned...

UPDATE: Late Thursday, the DOJ and ODNI filed an emergency motion asking for a 30-day stay while the agencies consider an appeal. EFF opposed the motion Friday morning, and the government filed a reply around noon PT. We'll post any additional updates here as soon as they become available.

[Permalink]

Federal Court Partially Invalidates One of EFF Most Wanted Patents: Acacia Research Streaming Media

Ten claims from the Acacia Research Streaming Media Patent have been invalidated by the U.S.District Court for the Northern District of California. The Court invalidated the remaining claims that had been asserted in the litigation, after several others had been dropped from the suit by Acacia. EFF was not involved in the case, which was brought by Acacia against leading satellite and cable companies, Echostar, DirectTV, Time Warner Cable and CSC Holdings, Inc. Similar claims in related patents will also be invalid under the Court's analysis.

Invalidation by litigation is a different process for busting a patent than the reexamination procedure that EFF uses, but the end result is the same: the patent is ended and harassment of others using the patented technology must cease.

EFF thanks the cable and satellite companies for fighting off this bad patent, which also had been used by Acacia Research to threaten colleges and universities. This marks the seventh patent targeted by EFF that has either been busted, invalidated, narrowed or had a reexam granted.

[Permalink]

Prompted by EFF Lawsuit, FBI (Partially) Releases Domestic Surveillance Guidelines

The Federal Bureau of Investigation has released a heavily censored version of its controversial Domestic Investigations and Operations Guidelines (DIOG), which became effective on December 1, 2008. EFF requested public disclosure of the guidelines under the Freedom of Information Act in December and, after more than six months passed with no response, we filed suit against the Department of Justice in June 2009. In response to the lawsuit, the Bureau agreed to answer EFF's disclosure request no later than October 13, and the court ordered it to do so. The FBI’s partial release of the DIOG complies with the court's order to respond to our request.

The 258-page document implements the Attorney General’s Guidelines for Domestic FBI Operations, the most recent version of which was issued late last year by former Attorney General Michael B. Mukasey. For 33 years, the FBI's domestic surveillance activities have been conducted according to a set of guidelines promulgated and revised by successive Attorneys General. Initially crafted by Edward Levi in 1976, the first set of guidelines were put into place to curb the invasive techniques of the FBI's Counterintelligence Programs (“COINTELPRO”) of the 1960s and 1970s.

The Mukasey guidelines, among other things, gave the FBI the authority to open investigative “assessments” of any American without any factual predicate or suspicion. Such “assessments” allow the use of intrusive techniques to surreptitiously collect information on people suspected of no wrongdoing and no connection with any foreign entity. These inquiries may include the collection of information from online sources and commercial databases, and the use of grand jury subpoenas to obtain telephone and email subscriber information.

In light of the invasive techniques that can be used as part of an “assessment,” it is disturbing that large portions of Section 5 of the DIOG, which governs the conduct of “assessments,” has been blacked out by the FBI in the publicly accessible version of the guidelines. The withholding of this information is particularly troubling when the Bureau concedes in a released portion of the DIOG that “assessments” are undertaken with "no particular factual predication," a standard which the agency itself admits is "difficult to define." It is also notable that the FBI has withheld virtually all of the section of the DIOG (Section 16) that governs “undisclosed participation” by FBI agents and informants in political and civic organizations.

The extensive withholding of critical parts of the DIOG conflicts with public assurances made by FBI and Justice Department officials. In a letter to Senate Select Committee on Intelligence Chairman John D. Rockefeller IV, dated December 15, 2008, Valerie Caproni, the General Counsel of the FBI, noted that “we understand that the expansion of techniques available . . . has raised privacy and civil liberties concerns [but] we believe that our policies and procedures will mitigate those concerns.” Ms. Caproni stated that the FBI will “reassess the policy judgments made in the DIOG in one year.” She stated that the reassessment will be “informed by our experience in the coming year, as well as by comments and suggestions received from Congress and interested parties.” More recently, in an interview about the DIOG posted on the FBI website, Ms. Caproni said, “to the extent that the public has comments and concerns, they should let us know because nothing is written in stone and we hope we’ve gotten it right but if we haven’t gotten it right, our goal is to make it right.” Similarly, Assistant Attorney General for National Security David S. Kris promised in his confirmation hearing that “input from Congress and the public” would play an important role in the reassessment of the DIOG that is scheduled to occur at the end of this year.

EFF agrees that the DIOG – the blueprint for the FBI’s use of invasive techniques – should be the subject of a full and informed public debate. To that end, we plan to continue to pursue our pending FOIA litigation to challenge the FBI’s decision to withhold substantial portions of the document.

[Permalink]

Privacy in Online Behavioral Tracking and Targeting - It's Time to Protect Consumers

EFF and a coalition of other consumer and privacy groups called on Congress today to protect Americans' privacy from invasive online behavioral tracking and targeting.

In letters sent to the House Energy and Commerce Committee and two subcommittees, the groups delivered a legislative primer:

"Tracking people’s every move online is an invasion of privacy. It’s like being followed by an invisible stalker – individuals aren’t aware that it’s happening, who is tracking them, and how the information will be used. They’re not asked for their consent and have no meaningful control over the collection and use of their information, often by third-parties with which they have no relationships."

These third-parties – companies like Omniture, Double Click, AdBrite – can can combine online activity across the Web with offline data, creating detailed profiles and serving ads based on users' behavior. As people increasingly use the Internet for health, financial, and other services, deeply personal information becomes available to advertisers.

Another reason to be concerned about behavioral tracking is the threat of inappropriate data collection by the government, which often gets private information about ordinary citizens from private companies. Limiting commercial tracking of our online activities may also help protect against this threat.

Self-regulation by advertisers is not enough – legislation is needed to protect consumers. The coalition's recommendations outline what these laws need to ensure: that sensitive information is not collected or used for behavioral tracking and targeting, that websites and ad networks can't collect or use data for more than 24 hours without the consumer opting in, and that the data can't be used to affect anyone's credit, employment, or insurance.

The recommendations appear all the more urgent in light of worrying new revelations from earlier this month on the leakage of private and personal information from social networking sites to advertising and tracking companies. (More on this in a post next week.)

We hope that Congress pays close attention to these issues and recommendations.

[Permalink]

The New York Times on Government Website Privacy

Today's New York Times includes their editorial board's take on revising government web tracking policy. Their recommendations align closely with those we made in coordination with The Center for Democracy and Technology earlier this month:

Officials say they recognize that people must be told that their use of Web sites is being tracked — and be given a chance to opt out. More is needed. The government should commit to displaying such notices prominently on all Web pages — and to making it easy for users to choose not to be tracked.

It must promise that tracking data will be used only for the purpose it was collected for: if someone orders a pamphlet on living with cancer, it should not end up in a general database. Information should be purged regularly and as quickly as possible. These rules must apply to third parties that operate on government sites.

The Obama administration is working to better harness the power of the Internet to deliver government services. That is good. But it needs to be mindful that people should be able to get help and be assured that their privacy is being vigilantly protected.

Last week, CDT's Alissa Cooper summarized our recommendations in detail on CDT's PolicyBeta blog.

[Permalink]