Privacy Digest

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 »

Consent No Cure For Health Info Privacy Issues - Via CDT - PolicyBeta:

An article in the Washington Post today reported on the use by health and life insurers of identifiable prescription drug records to make coverage decisions. This data is actually acquired by companies that act as data brokers or analysts on behalf of insurers, and individuals applying for insurance consent to having their prescription drug data gathered and used for this purpose. The article further notes that the gathering of this data will be even easier when this information is stored in electronic health records.  read more »

ABA Judges Get an Earful About RIAA Litigations - Via Slashdot: Your Rights Online:

NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" --- Wired is helping to spread the word on Ray's article.

(Read Original Article - Via Slashdot: Your Rights Online.)

Net Censorship Law Struck Down Again - Via Threat Level:

A federal appeals court struck down as unconstitutional a Clinton-era law that would have forced websites with adult material to verify visitors' ages, dealing another blow to the government in a 10-year court battle over net censorship.

The 3rd U.S. Circurt Court of Appeals upheld on Tuesday a 2007 lower-court decision that the Child Online Protection Act violated the First Amendment since it was not the most effective way to keep children from visiting adult websites.

Both courts also found that the standards for material that had to be hidden from open browsing were so loosely defined that any content not suitable for a four-year-old would have been hidden behind a age-verification firewall.  read more »

New RIAA Lawsuit Defense Tactic: Admit Liability, Challenge the Law - Via Threat Level:

Here's a unique defense to a Recording Industry Association of America file sharing lawsuit: Admit liability and challenge the law under which you're being sued.

That's what a Bronx woman did Monday in New York federal court (.pdf). Denise Barker is accused of file sharing eight songs on the Kazaa network in 2004. If found liable, she faces fines under the Copyright Act of $750 to $150,000 per song.

Barker's attorney, Ray Beckerman, admitted the woman file shared and challenged the constitutionality of the Copyright Act, the law under which the RIAA sued Barker and thousands of others. The fines the act authorizes for each download is unconstitutionally excessive and against U.S. Supreme Court precedent, Beckerman said.  read more »

Federal Court Once Again Upholds Ban On Unconstitutional Internet Censorship Law - Via American Civil Liberties Union:

Decision Underscores ACLU's Decade-Long Challenge To So-Called Child Online Protection Act

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

PHILADELPHIA - In a clear victory for free speech today, a federal court once again upheld a ban on a law that would criminalize constitutionally protected speech on the Internet. The American Civil Liberties Union challenged the unconstitutional Child Online Protection Act (COPA) on behalf of a broad coalition of writers, artists and health educators who use the internet to communicate constitutionally protected speech.

"For years the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional," said Chris Hansen, Senior Staff Attorney with the ACLU First Amendment Working Group. "The government has no more right to censor the Internet than it does books and magazines."  read more »

Key Internet Censorship Law Struck Down Yet Again - Via EFF.org Updates:

The ACLU, EFF, and a coalition of plaintiffs achieved yet another victory for online free speech this week when the U.S. Court of Appeals for the Third Circuit affirmed [decision, PDF] a district court's decision [decision, PDF] granting a permanent injunction against enforcement of the Child Online Protection Act of 1998 (COPA), a federal law that would violate the First Amendment by imposing civil and criminal penalties on commercial website operators that publish sexually explicit material without also using credit card authentication or other technological measures to verify viewer age and block access by minors.  read more »

Three Ways to Fight Immunity - Via EFF.org Updates:

It’s been two weeks since the Senate’s cowardly vote to pass the FISA Amendments Act (FAA), caving in to the president’s demands. With this vote, Congress gave the president virtually all of the spying powers he has sought for so long, and delivered the one thing he demanded above all else: Immunity for his telecom buddies for their role in his illegal spying program.

EFF fought long and hard to prevent passage of immunity for the telecoms, and this vote was a serious setback for our case seeking to hold AT&T and the other telecoms accountable. But the fight is far from over. As we suggested in the immediate aftermath of the vote, Congress may have caved, but EFF has not. In the coming months and weeks, we will continue the fight against immunity on multiple fronts.

Here is a brief primer on what we are doing now to fight back against this unconstitutional bill:  read more »

Anti-Robocall Crusader Pushes For a Crackdown on Political Phone Droids - Via Threat Level:

With the general election still a few months off, the subject of robocalling is probably far from the minds of most voters. But Shaun Dakin has become a quixotic national crusader against these automated calls, and he wants to put politicos on notice.

Dakin, the founder of the non-profit National Political Do Not Contact Registry, is launching a new initiative to push California regulators to enforce its little-noted robocall rule. 

"What we're trying to do is to make politicians understand that there is a law on the books against these kinds of automated robocalls without a live person -- it's $500 per incident per violation," he says. "We want to make them realize that someone's paying attention to this."

With few exceptions, California's public utilities code says that robocalls are only legal when they're introduced by a live person. But Dakin says that the rules are never enforced, and points to the spate of robocalls conducted by the presidential candidates during this year's primaries as an example.  read more »

Embarq Response on Behavioral Advertising Comes Up Short - Via CDT - PolicyBeta:

Last week we blogged about the continuing congressional pressure facing ISPs regarding their involvement in behavioral advertising. Embarq has replied to the letter that Rep. Dingell, Rep. Barton, and Rep. Markey sent last week inquiring about the company’s trials of a new system that tracks the Web sites subscribers visit and uses that data to serve targeted advertisements to those subscribers. Press reports had indicated that Embarq was partnering with online ad network NebuAd for the test. According to a separate Embarq letter released yesterday, the trial involved 26,000 subscribers in Gardner, Kansas, and only 15 subscribers opted out.

One of the most troubling aspects of Embarq’s response concerns its approach to notice and consent. Embarq states that the company “posted a notice in the Privacy Policy that appeared on Embarq’s website.” As our recently-released legal analysis pointed out, such notice is most likely inadequate to meet the requirements set out in wiretapping laws, including the Federal Wiretap Act. This law requires an ISP to obtain its subscribers’ consent before intercepting or disclosing their communications—a standard that does not appear to have been met by Embarq.  read more »

Flying Without ID? Know What's in Your Files - Via Threat Level:

Fliers who find themselves attempting to fly without identification should prep themselves on what their old addresses were, when their wedding anniversary is and and their children's addresses.

Knowing those and other bits of personal information in public records will be key to convincing federal employees to let you past the x-ray machines onto your plane.

That's because under new rules from the Transportation Security Administration, travelers who try to fly without identification now have to do more than just let screeners paw through their bags and wand them up and down.

Now, those who left their license at home or had it stolen have to answer a series of questions relayed to the screener by employees in TSA's operations center in Virginia, where employees have access to databases of public records, including those compiled by data giant Lexis Nexis.  read more »

Accountability Now and Strange Bedfellows: The strategy and rationale - Via Salon: Glenn Greenwald:

In the 2006 mid-term elections, Americans handed The Democratic Party a sweeping, staggering, and historic victory -- as the GOP was removed from power and Democrats given control over both the House and Senate. It marked only the third time in the last 60 years that there was a change in control of the Congress. The Democrats defeated six GOP Senators, and picked up 31 House seats. Six Governorships switched from the GOP to the Democrats. Not one single Democratic incumbent in Congress and not one Democratic Governor lost -- only the second time in U.S. history in which one of the major parties failed to defeat even a single Congressional incumbent from the other party.

Since that overwhelming Democratic victory, this is what the Democratic-led Congress has done:  read more »

Interview with ACLU re: constitutional challenge to new FISA law - Via Salon: Glenn Greenwald:

(Updated below - Update II - Update III - Update IV)

This afternoon, I spoke with Jameel Jaffer, the Director of the ACLU's National Security Project, regarding the two legal proceedings commenced today by the ACLU challenging the constitutionality of the new FISA law. The roughly 20-minute discussion can be heard here.

The ACLU filed one action in the FISA court, requesting that -- contrary to how the FISA court normally works -- all proceedings regarding the constitutionality of the FISA law be open to the public and transparent, and that the proceedings be adversarial (i.e., that the ACLU -- rather than just the Government -- can participate). The other action was filed in a federal court in the Southern District of New York, alleging that the provisions which vest vast new warrantless eavesdropping powers in the President are, for multiple reasons, violative of the Fourth Amendment of the U.S. Constitution. The ACLU's lawsuits do not challenge the constitutionality of the telecom immunity provisions of the new FISA law because those sections will be challenged by EFF and local/affiliate ACLU groups in separate actions. The legal documents filed today by the ACLU are here.

In the podcast, Jaffer details exactly what warrantless surveillance powers the new FISA bill vests in the President, along with the reasons they are so pernicious.  read more »

The ‘Repeal Immunity’ Movement Begins Today - Via EFF.org Updates:

Today, EFF Senior Staff Attorney Kevin Bankston was invited to guest-blog at The Hill.com's Congress Blog on EFF's plans in the wake of the recent surveillance law overhaul:

Our long war against warrantless wiretapping has only just begun, and we will not stop until we get that legal ruling we’ve been fighting for. Wednesday we only lost a battle, not the war, and EFF’s struggle to hold the White House and the telecoms accountable for their lawbreaking will continue on multiple fronts — starting with a constitutional challenge to the immunity provisions...

While duking it out over immunity in the courts, EFF will also continue its fight in Washington, working in the next session of Congress — a Congress likely to be much different in its composition than today’s, and working with a different president — to wipe the stain of the FAA’s immunity provisions off the books.

(Read Original Article - Via EFF.org Updates.)

ACLU Thanks Senators Who Stood for the Constitution - Via American Civil Liberties Union:

Washington, DC – After a brutal loss on the FISA Amendments Act today in the Senate, the American Civil Liberties Union expressed gratitude to the senators who cast their vote against the bill.

The following can be attributed to Caroline Fredrickson, director of the ACLU Washington Legislative Office:

“There are a few senators who deserve praise for defending the Constitution today. We applaud Senators Feingold, Leahy, Dodd, and Cardin for their tireless efforts to improve this dismal legislation. We especially missed the presence of the recovering Senator Kennedy today; his speech in February was a high point in this legislative battle.  read more »