Al-Haramain Warrantless Spying Case Can Proceed

Today, Chief Judge Vaughn Walker of the United States District Court in San Francisco denied the government's third motion to dismiss the Al-Haramain v. Bush litigation. The ruling means that the case can proceed and the court also set up a process to allow the Al Haramain plaintiffs to prosecute the case while protecting classified information.

Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA).

In late 2007, the 9th Circuit Court of Appeals ruled that despite the disclosure, the "Sealed Document" itself was a state secret, but sent the case back to the District Court to determine whether the FISA law nonetheless allowed the case to go forward, under a doctrine called "preemption." Last summer, the Court had ruled that FISA does preempts the state secrets privilege, and gave Al-Haramain the right to amend its complaint to show that they were "aggrieved persons" within the meaning of FISA through evidence other than the Sealed Document. If they could do so, the case could proceed.

In today's ruling, the Court held that in their amended complaint the Al-Haramain plaintiffs had presented sufficient evidence that they were "aggrieved persons" and rejected the Government's claims to the contrary, saying: "Without a doubt, plaintiffs have alleged enough to plead 'aggrieved persons' status so as to proceed to the next step in proceedings . . ."

In order to allow litigation to proceed while keeping the secrets under wraps, the Court ordered the government to arrange security clearances for Al-Haramain's attorneys. The Court also ordered the government to allow Judge Walker to review the Sealed Document in his chambers by January 19th. Finally, the Court required the government to review the classified submissions in the case, and declassify as much as possible. The Court will schedule a hearing later this month to plan next steps.

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First Interview with the NSA Whistleblower

Over the weekend, Newsweek revealed Thomas M. Tamm as the man who first blew the whistle on the Bush Administration's illegal warrantless wiretapping program. Last night, Mr. Tamm gave his first public interview on The Rachel Maddow Show:

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I remember when I was figuring out that something was going on extra-judicially, I looked at the NSA websites, and they proudly talked about the Fourth Amendment of the Constitution: the right of the people to be secure in their persons and their places. That's part of the reason we fought the Revolutionary War.

And then... we learned that the only way we can be kept safe is for the government to break our laws? I just disagree with that. I think we are stronger and better as a nation when we follow the Constitution, when we follow the statutes, and when we follow the rule of law.

When asked whether he thought the illegal wiretapping program should result in prosecutions, Tamm put a finer point on his words about the rule of law:

Maddow: Do you think in order to move forward and pay tribute to the rule of law that their ought to be prosecutions?

Tamm: I certainly think it ought to be looked at. I really do... It offends me, that we feel that we're not strong enough as a country, that our laws are not strong enough, that our Congress is not strong enough, that our courts are not strong enough to protect us... I think it should be looked at very seriously.

Like AT&T whistleblower Mark Klein's interview with Keith Olbermann earlier this year, it's a great reminder of the basic principles at stake in the fight to hold telcos accountable for illegal spying.

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EFF, FIRE and Others Urge Michigan State to Respect Student Speech in "Spammer" case

The Electronic Frontier Foundation, FIRE (Foundation for Individual Rights in Education) and ten other civil liberties organizations today sent an open letter today to Michigan State University (MSU) President Lou Anna K. Simon in defense of MSU student government leader Kara Spencer. Ms. Spencer was formally warned by MSU and labeled a "spammer" for sending e-mails to 391 faculty members raising concerns about a controversial change in the university's calendar.

MSU's email policy prohibits the sending of unsolicited e-mail "for personal purposes, advertising or solicitations, or political statements or purposes" to more than about 20-30 recipients without prior approval of University officials. EFF and the other organizations noted that, especially by prohibiting "political statements" such as Ms. Spencer's based on their content, the public university policy is constitutionally suspect. The policy also improperly grants unfettered discretion to MSU in selecting which messages can be sent to multiple students and faculty by requiring prior administration approval.

In signing today's open letter, EFF and the other organizations agree that MSU's actions against Ms. Spencer is "egregiously wrongheaded." They ask that President Simon immediately overturn the finding that Ms. Spencer is a spammer, since that label implies criminal wrongdoing. The organizations also offered to assist MSU in developing a constitutional acceptable use policy for the university.

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Second Circuit Rules Against National Security Letter Gag Orders

Today, the federal Second Circuit Court of Appeals gave another setback to the Bush Administration's claims for sweeping new Executive powers. The court found the National Security Letter (NSL) statute's gag provision unconstitutional in Doe v. Mukasey. The NSL law allows the government to seek your electronic communications transactional records from your ISP without obtaining a court order. The gag provisions required the recipient of a NSL to stay quiet as long as the government desired, with only a fig leaf of judicial review.

The fig leaf was not good enough to satisfy the First Amendment. The Second Circuit struck down the statute's truncated judicial review provisions, which required the court to treat the FBI's assertions as conclusive absent evidence of bad faith. In addition, the government was required to initiate judicial proceedings to enforce the gag, instead of the ISP who received the NSL. The Court also construed several controversial aspects of the NSL statute narrowly, substantially reducing the scope of the FBI's gag power.

The Second Circuit allowed the FBI to continue to issue NSL to communications service providers, but only pursuant to the new narrower interpretation. The Court did not address the Fourth Amendment implications of NSLs, since the government had withdrawn the NSL at issue before the court ruled, leaving the gag order as the only live issue. District Court Judge Marrero's prior decision is also worth reading.

The ACLU represents the Doe plaintiff subject to the gag order. EFF, along with the National Security Archive, submitted an amicus brief in support of the Doe plaintiff.

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The Whistleblower Who Kick-Started Domestic Spying Revelations

Remember how shocked you were back in December of 2005 when you learned that the government was spying on Americans' phone calls and emails without warrants? The whistleblower who apparently kicked off that New York Times investigation has come forward, and his story is a timely lesson on how important -- and frightening -- it can be to do the right thing.

This weekend, Newsweek published the remarkable saga of Thomas M. Tamm, a former prosecutor in the Department of Justice who saw evidence of illegal domestic surveillance of U.S. citizens. When his questions to superiors went unanswered, Tamm decided to blow the whistle -- calling the New York Times from a pay phone. James Risen and Eric Lichtblau eventually won the Pulitzer Prize for their work in uncovering the scandal that touched the highest levels of our government.

The Risen and Lichtblau investigation sparked another important development: it showed former AT&T employee Mark Klein the context of the work he did in a secret room in San Francisco. Mr. Klein decided the time had come for him to blow the whistle himself. His evidence formed the backbone of our class-action lawsuit against AT&T.

But this whistleblowing does not come without risk. The Newsweek article includes a harrowing account of an FBI raid on Tamm's home. And he is still worried about facing legal charges for his actions. But without Tamm, America may have never learned about this massive illegal spying by the National Security Agency, and we all owe him our thanks.

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

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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FCC Unanimously Approves Use of Television "White Spaces"

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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Google Reaches Settlement With Authors and Publishers Over Google Book Search

Today, Google announced a settlement with authors and publishers in the class action lawsuits over Google Book Search. The settlement still needs to be approved by a New York federal court, but under the plan, Google will:

• pay authors and publishers $125 million, part of which will be used to create a Book Rights Registry allowing copyright owners to register their works and receive a share of subscriptions, book sales and ad revenues;
• allow users to purchase full books, saved to an "electronic bookshelf;"
• will offer institutional subscriptions, including a free online portal for public libraries;
• will point users to locations to buy or borrow searched books.

The settlement also says that authors and publishers will be able to activate "preview" and "purchase" modes for books that are in-print and copyrighted, as well as monetize out-of-print books that are digitized by Google.

You can find more information from the settlement agreement website, the official Google blog, the Authors Guild (advocacy organization for authors), and the Association of American Publishers (trade association for U.S. commercial publishers)

Stay tuned for more as we digest the complete settlement agreement.

UPDATE: We have posted our additional thoughts about the settlement agreement here.

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EFF's "Yellow Dots of Mystery" on Instructables

Since late 2004, EFF has been warning the public about "printer dots" -- tiny yellow dots that appear on documents produced by many color laser printers and copiers. These yellow dots form a coded pattern on every page the printer produces and can be used to identify specific details about a document; for example, the brand, model, and serial number of the device that printed it and when it was printed. In short, the printer dots are a surveillance tool that can link each printed page to the printer that printed it.

To help individuals learn more about printer dots and how to find them, EFF posted a video and tutorial to Instructables, titled, "Yellow Dots of Mystery: Is Your Printer Spying on You?". You can also watch the video here:

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Printer dot surveillance is a disturbing end run around individuals' right to anonymous speech. Anonymity is a vital freedom -- it can help political or religious speakers, labor organizers, or whistleblowers avoid retribution for their beliefs and opinions. Around the world, anonymity is an important practical protection for dissidents and religious groups against persecution by repressive governments.

Furthermore, it's deeply troubling that printer manufacturers implemented this surveillance mechanism under the table after secret meetings between government representatives and technology manufacturers. Printer companies don't disclose the tracking to their customers and so the existence of these yellow tracking dots remains secret.

In the meantime, you can do your part by spreading the word about printer dots, sending EFF samples from your own color laser printers, and contacting manufacturers to express your privacy concerns directly through the Seeing Yellow site. And of course, you can support our work on privacy, anonymity, and free speech issues by becoming an EFF member.

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FCC Chair Supports Moving Forward on White Space Tech

Last Wednesday, Federal Communications Commission (FCC) Chairman Kevin Martin spoke in favor of opening up "white spaces" at a press conference while the FCC's Office of Engineering and Technology (OET) published its much-anticipated report on white space technology trials. The Commissioners also announced plans to vote on white spaces at their next meeting, November 4th, although predictably, white space opponents have requested a delay of the vote.

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