Privacy Digest

Courts Hand Yet Another Defeat to COPA - Via CDT - PolicyBeta:

Just yesterday we blogged about how the government asked the full 3rd U.S. Circuit Court of Appeals to reconsider the decision of the three-judge panel that ruled the Child Online Protection Act (COPA) unconstitutional — for the third time. Just today the court denied the government’s request for a rehearing.

The government now has the option of appealing the case to the U.S. Supreme Court, which it will surely do. But as we said yesterday, it’s time for the government to stop wasting taxpayer dollars on fruitless litigation, and instead use that money to spur the development of user empowerment technologies and to encourage parents to take control over what Internet content their children consume.

(Read Original Article - Via CDT - PolicyBeta.)

Government Refuses to Accept COPA As Unconstitutional - Via CDT - PolicyBeta:

Back in July, a federal appellate court ruled against the government once again in the long-standing case against the Child Online Protection Act. The 3rd Circuit held that the law – which would censor a significant amount of valuable online content – violates the First Amendment. Unhappy with the three-judge panel’s decision, the government has asked the full “en banc” court to reconsider the case.

While Congress had a good goal in mind when it passed COPA – to shield minors from unsavory websites – the legislation that passed was grossly over broad and imprecise, folding in online content, such as health information and Web art, that is legal under the First Amendment and recognized as valuable by most citizens.  read more »

Identity-Theft Victims Owed Duty of Care in Bank Fraud Investigations, N.J. Court Says - Via Law.com :

A bank that pursues criminal charges against an innocent third party whose identity is stolen and used to defraud the bank can be sued for negligence and malicious prosecution, an appeals court held Tuesday in a case of first impression in New Jersey.

The court, in Brunson v. Affinity Federal Credit Union, A-4439-06, ruled that financial institutions and fraud investigators have a duty to "pursue with reasonable care their responsibility for protecting not only their own customers, but non-customers who may be victims of identity theft."

The holding reversed a grant of summary judgment dismissing claims for negligence and malicious prosecution against Affinity Federal Credit Union and its fraud investigator. Plaintiff Howard Brunson was arrested and spent 13 days in custody for a check fraud scheme carried out by a person who opened an Affinity account using his identity.  read more »

Asylum-Seeker Rejected Based On Wikipedia, Appeals Court Reverts - Via Threat Level:

The Department of Homeland Security should not use the user-generated Wikipedia to decide whether an asylum seeker can enter the United States, a federal appeals court ruled Friday.

That judicial statement of the obvious (.pdf) from the 8th U.S. Circuit Court of Appeals overturned a ruling by the Board of Immigration Appeals, which said DHS committed no big foul in using a site editable by anyone with a computer to decide the fate of a woman named Lamilem Badasa.

DHS decided to deport Badasa after consulting Wikipedia to decide whether a Ethiopian travel document known as a laissez-passer was adequate to prove her identity.

Using the Wikipedia page as evidence, the government convinced an immigration judge that the document did not prove her identity, calling it a one-way travel document based on information provided by the applicant.  read more »

Boston Court's Meddling With 'Full Disclosure' Is Unwelcome - Via Wired News: Security Blanket:

In eerily similar cases in the Netherlands and the United States, courts have recently grappled with the computer-security norm of "full disclosure," asking whether researchers should be permitted to disclose details of a fare-card vulnerability that allows people to ride the subway for free.

The "Oyster card" used on the London Tube was at issue in the Dutch case, and a similar fare card used on the Boston "T" was the center of the U.S. case. The Dutch court got it right, and the American court, in Boston, got it wrong from the start -- despite facing an open-and-shut case of First Amendment prior restraint.

The U.S. court has since seen the error of its ways -- but the damage is done. The MIT security researchers who were prepared to discuss their Boston findings at the DefCon security conference were prevented from giving their talk.  read more »

Appeals Court Punts on AT&T Spying Case Appeal - Via Threat Level:

More than a year after hearing oral arguments, a federal appeals court has declined to rule on whether lawsuits targeting the president's warrantless wiretapping of Americans are too secret to be challenged in court, according to an order released Thursday.

Instead, the court deferred to Congress's recent passage of amnesty for telecoms that secretly helped the spying, returning the case to a lower court where the government will fight to have the suits dismissed using the amnesty provision.

The odd ending counts as victory for the Electronic Frontier Foundation -- which is suing AT&T for helping the government warrantlessly spy on Americans.  read more »

Appeals Court Remands Gov't Appeal in Hepting v. AT&T - Via EFF.org Updates:

Today, the United States Court of Appeals for the Ninth Circuit returned the Hepting v. AT&T case to the District Court. In a two sentence order, the court wrote:

In light of the FISA Amendments Act of 2008, Pub. L. No. 110-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

The government and AT&T had appealed Judge Vaughn Walker's June 2006 decision rejecting the argument that the state secrets privilege prevented millions of ordinary American from having their day in court. Oral argument was held August 2007.  read more »

Watch-Listed Fliers Can Sue, Appeals Court Rules - Via Threat Level:

Airline passengers on the government's no-fly list can sue the government to get their names removed, according to a federal appeals court ruling Monday that swept aside complicated judicial rules that insulated the government from lawsuits over the sprawling list of suspected terrorists.

The decision (.pdf) marks the first time that an individual has been allowed to use the court -- rather than a form mailed to a Homeland Security office  -- to contest their inclusion in the nation's secret anti-terrorism database. In a recent interview, Homeland Security chief Michael Chertoff said such court reviews would destroy the watch lists and lead to another hijacking like 9/11. Those who continually run up against the list describe the experience of trying to figure out how to get off the list as Kafkaesque.  read more »

MIT Coders' Free Speech At Stake - Via EFF.org Updates:

As regular Deeplinks readers know, EFF's Coders' Rights Project is defending the rights of three MIT students who were prevented from presenting their research on security vulnerabilities in Boston's transit fare payment system. The students were hit with a temporary restraining order that silenced their planned presentation at DEFCON.

Why this is Important

At first glance, the issues at play may appear obscure, and of interest only to technical researchers and lawyers. But as we noted in a post last week, the right to publish without pre-publication review is part of the purpose of the 1st amendment, and one of the reasons Americans fought the Revolutionary War. (The MBTA's stance is all the more ironic, considering Boston's role in that war.)  read more »

EFF Urges Judge to Lift Gag Order on MIT Students - Via EFF.org Updates:

Boston - The Electronic Frontier Foundation (EFF) urged a federal judge Tuesday to lift an unconstitutional gag order issued to three students at the Massachusetts Institute of Technology (MIT) whose academic research uncovered vulnerabilities in Boston's transit fare payment system.

A hearing on the temporary restraining order is set for 11am Thursday at the United States District Court for the District of Massachusetts in Boston.

The students -- Zack Anderson, RJ Ryan and Alessandro Chiesa -- would like to resolve this dispute amicably with the Massachusetts Bay Transit Authority (MBTA). However, it has been hard to find an amicable resolution when the students are the subjects of a vigorous lawsuit and under the restrictions of a temporary restraining order. This remains true even though the MBTA filed a motion earlier this week to modify the restraining order to only prohibit disclosure of "non-public" information.  read more »

Quick Start to “Quiet” Month - Via CDT - PolicyBeta:

August is traditionally a slow time in D.C., with Congress out of session and most policymakers looking to escape town for some vacation. But the early part of the month has already seen some significant developments for Internet policy.

First, on August 1, the FCC voted 3-2 to adopt a controversial enforcement action against Comcast for interfering with BitTorrent traffic. As I noted in July, CDT has reservations about the legal basis for the FCC’s assertion of authority to engage in such enforcement. But the kind of tactics Comcast was using pose a real threat to the openness of the Internet, and the FCC’s decision marks the first time the government has stepped in to impose some concrete limits. It’s too early to judge the full impact — in part because the agency has not yet released the actual text of the order — but clearly this is a landmark development in the public debate over Internet neutrality and network management.

Second, on August 4, the 2nd U.S. Circuit Court of Appeals issued an important decision in the case involving Cablevision’s proposed “remote storage” digital video recorder (DVR). CDT helped organize an amicus brief in the case back in 2007, because the lower court ruling that the DVR would infringe copyright threatened to cast a major cloud of copyright risk over services that provide data storage remotely.

Fortunately, the Appeals Court strongly rejected the lower court’s flawed reasoning, which dangerously blurred the line between direct and secondary liability  read more »

EFF Battles Dangerous Attempts to Circumvent Electronic Privacy Law - Via Electronic Frontier Foundation:

Email and Cell Phone Privacy Threatened in Two Separate Court Cases
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  read more »

Cablevision Scores Copyright Victory Against Hollywood - Via Threat Level:

A federal appeals court on Monday lifted an injunction against Cablevision Systems that blocked it from offering a recording service that stored programming on the cable company's own servers instead of on an viewers' in-house recording devices.

Hollywood and television programmers alleged Cablevision’s plan would directly infringe their exclusive rights to both reproduce and publicly perform their copyrighted works.  read more »

Air Force cracks software, carpet bombs DMCA - Via Ars Technica :

Last week, a US Court of Appeals upheld a ruling on software piracy. The organization doing the piracy, however, happened to be a branch of the US government, and the decision highlights the significant limits to the application of copyright law to the government charged with enforcing it. Most significantly, perhaps, the court found that because the DMCA is written in a way that targets individual infringers, the government cannot be liable for claims made under the statute.

[...]

Although Davenport did his development on a personal system at home, he began to bring beta versions of his code in for testing, and eventually started distributing his improved system within his unit, giving the software a timed expiration. A demonstration to higher-ups led to a recommendation for his immediate promotion, but that was followed by demands that the code for his software be turned over to the USAF.  read more »

Judge Hints at Mistrial in RIAA v. Jammie Thomas - Via Threat Level:

DULUTH, Minnesota -- The federal judge who presided over the nation's only peer-to-peer copyright-infringement trial announced from the bench here Monday that he is likely to declare a mistrial.

"Certainly, I have sent a signal to both sides of where I'm headed," U.S. District Judge Michael Davis said during a 70-minute hearing in which lawyers for the Recording Industry Association of America and defendant Jammie Thomas sparred over whether a jury verdict against Thomas should be overturned.

At issue is whether the RIAA needs to prove that copyrighted music offered by a defendant on a peer-to-peer network was actually downloaded by anyone. During Thomas' trial last October, Davis, on the RIAA's recommendation, instructed (.pdf) the jury that no such proof was necessary; if Thomas had the music in her Kazaa shared folder, where it could be downloaded, she could be found liable "regardless of whether actual distribution has been shown."  read more »