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Whistleblower Declaration and Other Key Documents Released to Public

San Francisco - More documents detailing secret government surveillance of AT&T’s Internet traffic have been released to the public as part of the Electronic Frontier Foundation’s (EFF’s) class-action lawsuit against the telecom giant.

Some of the unsealed information was previously made public in redacted form. But after negotiations with AT&T, EFF has filed newly unredacted documents describing a secret, secure room in AT&T’s facilities that gave the National Security Agency (NSA) direct access to customers’ emails and other Internet communications. These include several internal AT&T documents that have long been available on media websites, EFF’s legal arguments to the 9th Circuit, and the full declarations of whistleblower Mark Klein and of J. Scott Marcus, the former Senior Advisor for Internet Technology to the Federal Communications Commission, who bolsters and explains EFF’s evidence.

“This is critical evidence supporting our claim that AT&T is cooperating with the NSA in the illegal dragnet surveillance of millions of ordinary Americans,” said EFF Legal Director Cindy Cohn. “This surveillance is under debate in Congress and across the nation, as well as in the courts. The public has a right to see these important documents, the declarations from our witnesses, and our legal arguments, and we are very pleased to release them.”

EFF filed the class-action suit against AT&T last year, accusing the telecom giant of illegally assisting in the NSA’s spying on millions of ordinary Americans. The lower court allowed the case to proceed and the government has now asked the 9th U.S. Circuit Court of Appeals to dismiss the case, claiming that the lawsuit could expose state secrets. EFF’s newly released brief in response outlines how the case should go forward respecting both liberty and security.

“The District Court rejected the government’s attempt to sweep this case under the rug,” said EFF Senior Staff Attorney Kurt Opsahl. “This country has a long tradition of open court proceedings, and we’re pleased that as we present our case to the Court of Appeals, the millions of affected AT&T customers will be able to see our arguments and evidence and judge for themselves.”

Oral arguments in the 9th Circuit appeal are set for the week of August 13.

For the unredacted Klein declaration:
http://eff.org/legal/cases/att/SER_klein_decl.pdf

For the internal documents:
http://eff.org/legal/cases/att/SER_klein_exhibits.pdf

For the unredacted Marcus declaration:
http://eff.org/legal/cases/att/SER_marcus_decl.pdf

For EFF’s 9th Circuit brief:
http://eff.org/legal/cases/att/9thanswerbrief.pdf

For more on the class-action lawsuit against AT&T:
http://www.eff.org/legal/cases/att/

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

More Questions About Misuse of Authority at the Justice Department

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged a judge Thursday to force the FBI to finally release records about its now documented abuse of National Security Letters (NSLs) to collect Americans’ personal information. EFF’s filing comes as an internal FBI audit revealed that the bureau’s misuse of surveillance authority has been more widespread then previously thought.

EFF sued the FBI in April after the agency failed to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs. EFF’s FOIA request came after an initial Justice Department report indicated extensive abuse of the powerful NSL tools. Now, the Washington Post has reported that a new audit identified more than 1000 potential violations made while agents collected data about domestic phone calls, emails and financial transactions of thousands of Americans. FBI officials told Post that there have likely been several thousand instances of abuse in total. This week, the FBI also released new guidelines for the use of NSLs, but that won’t fix the core problem — a law that’s ripe for abuse.

“Under the PATRIOT Act, the Bureau can use NSLs to get private records about anybody without any court approval, as long as it claims the information could be relevant to a terrorism or espionage investigation,” said Marcia Hofmann, EFF Staff Attorney. “We have heard again and again about how the FBI has misused this new power to overreach into the lives of ordinary Americans. It’s time for someone other than the Justice Department to assess the documented problems, and long past time for Congress to fix the mistake it made in the PATRIOT Act, including repealing the expanded NSL powers it gave the FBI.”

EFF’s supplemental memo to the court, filed Thursday, asked the judge to rule on a request for a preliminary injunction that would force the FBI to begin releasing information about NSL abuse to the public immediately.

For EFF’s supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

New Evidence of Misuse Prompts Immediate Response in EFF FOIA Lawsuit

Washington, D.C. - A judge ordered the FBI today to finally release agency records about its abuse of National Security Letters (NSLs) to collect Americans’ personal information. The ruling came just a day after the Electronic Frontier Foundation (EFF) urged the judge to immediately respond in its lawsuit over agency delays.

EFF sued the FBI in April for failing to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs as revealed in a Justice Department report. This week, more evidence of abuse was uncovered by the Washington Post, and EFF urged the judge Thursday to force the FBI to stop stalling the release of its records on the deeply flawed program.

“The reports we’ve seen so far about NSL abuse are just the tip of the iceberg,” said EFF Staff Attorney Marcia Hofmann. “FBI officials told the Washington Post that there have likely been several thousand total instances of misuse. Americans deserve answers about this scandal and how the FBI has abused its power to spy on ordinary citizens.”

Under the PATRIOT Act, the FBI can use NSLs to get private records about anyone’s domestic phone calls, e-mails and financial transactions without any court approval — as long as it claims the information could be relevant to a terrorism or espionage investigation. Without a judge’s oversight, the law is ripe for the abuse that has been uncovered in these recent reports.

“The law itself is the source of the problem. It’s time for Congress to repeal these expanded NSL powers and protect Americans from this abuse of authority,” said Hofmann.

The judge’s order requires the FBI to process 2500 pages of NSL-related records by July 5, and then 2500 pages every 30 days thereafter.

For the judge’s order:
http://www.eff.org/flag/nsl/bates_order.pdf

For EFF’s supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Landmark Ruling Gives Email Same Constitutional Protections as Phone Calls

San Francisco - The government must have a search warrant before it can secretly seize and search emails stored by email service providers, according to a landmark ruling Monday in the 6th U.S. Circuit Court of Appeals. The court found that email users have the same reasonable expectation of privacy in their stored email as they do in their telephone calls — the first circuit court ever to make that finding.

Over the last 20 years, the government has routinely used the federal Stored Communications Act (SCA) to secretly obtain stored email from email service providers without a warrant. But today’s ruling — closely following the reasoning in an amicus brief filed the by the Electronic Frontier Foundation (EFF) and other civil liberties groups — found that the SCA violates the Fourth Amendment.

“Email users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls,” said EFF Staff Attorney Kevin Bankston. “The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can’t secretly seize your emails without a warrant.”

Warshak v. United States was brought in the Southern District of Ohio federal court by Steven Warshak to stop the government’s repeated secret searches and seizures of his stored email using the SCA. The district court ruled that the government cannot use the SCA to obtain stored email without a warrant or prior notice to the email account holder, but the government appealed that ruling to the 6th Circuit. EFF served as an amicus in the case, joined by the American Civil Liberties Union and the Center for Democracy & Technology. Law professors Susan Freiwald and Patricia Bellia also submitted an amicus brief, and the case was successfully argued at the 6th Circuit by Warshak’s counsel Martin Weinberg.

For the full ruling in Warshak v. United States:
http://eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf

For EFF’s resources on the case, including its amicus brief:
http://www.eff.org/legal/cases/warshak_v_usa

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

EFF Urges Court to Protect Privacy at Border Crossings

San Francisco - The government should not search travelers’ computers at border crossings without suspicion, said the Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) in an amicus brief filed today in the 9th U.S. Circuit Court of Appeals.

Over the past several years, U.S. customs agents have been searching and even seizing travelers’ laptops when they are entering or leaving the country if the traveler fits a profile, appears to be on a government watch list, or is chosen for a random inspection. The Supreme Court has ruled that customs and border agents may perform “routine” searches at the border without a warrant or even reasonable suspicion, but EFF and ACTE argue that inspections of computers are far more invasive than flipping through a briefcase.

“Our laptop computers contain vast amounts of personal information about our lives. You may do your banking on your computer, for example, or send email to your doctor about health concerns,” said EFF Senior Staff Attorney Lee Tien. “Travelers should not be subjected to unconstitutionally invasive searches of their laptops and other electronic devices just because they are crossing the border.”

The case in front of the 9th Circuit, United States v. Arnold, arose out of a suspicionless “profile” search of Michael Timothy Arnold’s computer at Los Angeles International Airport. The search uncovered evidence of alleged child pornography, and Mr. Arnold moved to suppress the evidence as the product of an unconstitutional search. The district court ruled that the agents lacked a reasonable basis to suspect Mr. Arnold of having committed a crime, and the government appealed the ruling. Mr. Arnold is represented by the Pasadena law firm of Kaye, McLane & Bednarski, LLP. The EFF-ACTE amicus brief was prepared by Arent Fox LLP.

For the full amicus brief:
http://www.eff.org/legal/cases/US_v_arnold/arnold_amicus.pdf

Contact:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Vote to Authorize Subpoenas Sets Stage for Showdown Over Illegal Surveillance

San Francisco - The Senate Judiciary Committee voted today to authorize subpoenas related to the National Security Agency (NSA)’s domestic spying program, setting the stage for a Congressional showdown over the surveillance of millions of ordinary Americans. The subpoenas demand certain legal documents that the Administration has withheld despite Congress’ repeated requests.

“This subpoena authorization is a critical first step toward uncovering the full extent of the NSA’s illegal spying and the role that telecommunications companies like AT&T played in it,” said EFF Staff Attorney Kevin Bankston. “Considering that it’s been almost six years since the NSA started spying on Americans without warrants and over a year since that spying was revealed publicly, these subpoenas are long overdue. It’s high time for Congress to get to the bottom of this mess.”

The Electronic Frontier Foundation (EFF) is suing AT&T for illegally assisting in the NSA spying. The government has asked the 9th U.S. Circuit Court of Appeals to dismiss EFF’s case, claiming that the lawsuit could expose state secrets.

“Our case against AT&T includes evidence from a former employee that points to a massive spying program impacting millions of people — a program far broader than the government has admitted to,” said Bankston. “Americans deserve to know the truth about the NSA program.”

For more on the class-action lawsuit against AT&T:
http://www.eff.org/legal/cases/att/

Contacts:

Derek Slater
Acting Media Coordinator
Electronic Frontier Foundation
derek@eff.org

Public Interest Groups Urge Court to Block Radical Expansion of Discovery Rules

San Francisco - The Electronic Frontier Foundation (EFF) and Center for Democracy and Technology (CDT) urged a California court Friday to overturn a dangerous ruling that would require an Internet search engine to create and store logs of its users’ activities as part of electronic discovery obligations in a civil lawsuit.

The ruling came in a copyright infringement lawsuit filed by motion picture studios against TorrentSpy, a popular search engine that indexes materials made publicly available via the Bit Torrent file sharing protocol. TorrentSpy has never logged its visitors’ Internet Protocol (IP) addresses. Notwithstanding this explicit privacy policy, a federal magistrate judge has now ordered TorrentSpy to activate logging and turn the logged data over to the studios.

“This unprecedented ruling has implications well beyond the file sharing context,” said EFF Staff Attorney Corynne McSherry. “Giving litigants the power to rewrite their opponent’s privacy policies poses a risk to all Internet users.”

The magistrate judge incorrectly reasoned that, because the IP addresses exist in the Random Access Memory (RAM) of TorrentSpy’s webservers, they are “electronically stored information” that must be collected and turned over to the studios under the rules of federal discovery.

This decision could reach every function carried out by a digital device. Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM.

“In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information,” said EFF Senior Staff Attorney Fred von Lohmann. “There is no reason why the rules should be different simply because a company uses digital technologies.”

The decision also threatens to radically increase the burdens that companies face in federal lawsuits, potentially forcing them to create and store an avalanche of data, including computer server logs, digital telephone conversations, and drafts of documents never saved or sent.

The magistrate judge in the case has stayed her order while TorrentSpy appeals the ruling. The case is Columbia Pictures Industries v. Bunnell, No. 06-01093 FMC, pending in the U.S. District Court for the Central District of California before Judge Florence-Marie Cooper.

For the full amicus brief:
http://www.eff.org/legal/cases/torrentspy/EFF_CDT_amicus.pdf

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Innocent Target of File-Sharing Lawsuit Racked Up Legal Fees Fighting Baseless Charges

Seattle - The Recording Industry Association of America (RIAA) should pay for a single mom’s two-year legal ordeal fighting a baseless file-sharing lawsuit, the Electronic Frontier Foundation (EFF) told Washington state court in an amicus brief filed Thursday.

The nightmare began for Dawnell Leadbetter in January of 2005, when she received a letter from the RIAA that accused her of illegally downloading copyrighted music and claiming she owed hundreds of thousands of dollars. Leadbetter contacted the RIAA to deny the baseless claims, and refused to pay any settlement monies. In response, the RIAA sued Leadbetter, and Leadbetter hired an attorney to fight the charges. After months of legal wrangling, the RIAA finally dropped the case in December of 2006. But in the meantime, Leadbetter had incurred significant attorney’s fees.

“Ms. Leadbetter isn’t the only innocent Internet user that has been ensnared by the RIAA’s litigation dragnet. But she is one of the few who have fought back, resisting RIAA pressure to pay settlement monies for something she did not do,” said EFF Staff Attorney Jason Schultz. “The RIAA’s settlement offers are usually less that what it would cost to defend yourself, so it’s a big commitment to hire a lawyer to clear your name. Reimbursing Ms. Leadbetter’s attorney’s fees could encourage other innocent lawsuit targets to stand up for themselves.”

Since 2003, the RIAA has sued over 20,000 people for allegedly sharing music over the Internet. The industry uses questionable investigative methods tactics to find its targets, and then often employs erroneous legal theories in its quest for settlement monies. In Ms. Leadbetter’s case, the suit against her included accusations of “secondary liability” — putting her on the hook for anything that happened on her Internet account, whether she knew about it or not.

“The RIAA knows that this legal theory is wrong. But if innocent victims are too scared to hire an attorney and fight back, the public could suffer under the misconception that these bogus theories are legitimate,” Schultz said. “Awarding attorney’s fees to Ms. Leadbetter helps protect everyone’s rights under copyright law.”

The amicus brief was filed in U.S. District Court in Seattle in conjunction with attorney Derek Newman of Newman & Newman LLP.

For the full amicus brief:
http://eff.org/legal/cases/interscope_v_leadbetter

For more on the RIAA lawsuit campaign:
http://www.eff.org/IP/P2P/?f=riaa-v-thepeople.html

Contact:

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org

EFF Lawsuit Uncovers History of Surveillance Mistakes

Washington, D.C. - Documents obtained by the Electronic Frontier Foundation (EFF) show years of chronic problems with the Federal Bureau of Investigation’s use of National Security Letters (NSLs) to collect Americans’ personal information and that Attorney General Alberto Gonzales has long been aware of these problems.

The documents were disclosed after EFF sued the government under the Freedom of Information Act (FOIA) earlier this year for records related to a scathing Justice Department critique of FBI NSL activity. The records detail more than 40 instances of improper, unauthorized collection of information about individuals, including unlawful access to phone records and email. The records show that Gonzales himself was sent several of these problem reports, including one less than a week before he told a congressional committee that no civil liberties abuses have resulted from the USA PATRIOT Act. He also voiced surprise when the Justice Department report on NSL misuse was made public earlier this year.

“These chronic privacy problems have long been known within the Justice Department but still were kept secret from those who really needed to know — members of the American public, including those who were surveilled,” said EFF Staff Attorney Marcia Hofmann. “The FBI can’t be trusted to police its own agents. It’s time for Congress to provide oversight to protect American citizens.”

The FBI’s use of NSLs was expanded under the USA PATRIOT Act in 2001, allowing federal agents to gather private records about anyone’s domestic phone calls, emails, and financial transactions without any court approval — as long as an FBI agent claims that the information could be related to a terrorism or espionage investigation. EFF submitted a FOIA request about the reported misuse of NSLs in March, and when no documents were forthcoming, EFF sued the FBI for their immediate release. Last month, a judge held that the FBI was required to release records related to the inspector general’s report beginning on July 5, with more documents to be disclosed every 30 days. In all, 1138 pages of NSL records were released to EFF late last week in the first batch of documents complying with the court’s order.

“This is by no means the whole story on NSL abuse,” said EFF Senior Counsel David Sobel. “We’re looking forward to receiving the rest of the documents. Americans deserve the whole story on the FBI’s deeply flawed program to issue NSLs.”

For the complete FBI documents and more analysis:
http://www.eff.org/flag/07656JDB/

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Friday Hearing to Finalize Sanctions, Revote in Contested Election

Oakland, Calif. - On Friday, July 13, at 9:30 a.m., a California judge will rule on sanctions against Alameda County for botching its response to a contested race conducted on Diebold electronic voting machines. In a tentative ruling issued Thursday, Judge Winifred Y. Smith said that the election results in the race were “nullified” and ordered a revote.

Americans for Safe Access and voters in the city of Berkeley brought a legal challenge seeking a recount after Measure R, an initiative addressing the operation of medical marijuana dispensaries, lost by fewer than 200 votes in the 2004 election. While the lawsuit was ongoing, election officials returned the voting machines to supplier Diebold Election Systems, and 96% of the election data was destroyed. The Electronic Frontier Foundation (EFF) helped analyze the remaining data, but too many questions remained.

“Without examining the redundant data, audit logs, and chain-of-custody records, no one can confirm whether any of the reported malfunctions were ever resolved or whether vote data was manipulated or lost,” said EFF Staff Attorney Matt Zimmerman. “As a result, no one can ever confirm whether the vote result announced by the county was correct.”

Smith’s tentative ruling orders the county to place Measure R on the ballot in the next general election, as well as to pay the costs for the incomplete recount. That ruling is likely to be finalized after Friday’s hearing.

What:
Americans for Safe Access vs. County of Alameda

When:
9:30 a.m.
Friday, July 13, 2007

Where:
Wiley Manuel Courthouse
Department 114
661 Washington Street
Oakland, CA

Contacts:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Gregory G. Luke
Attorney
Strumwasser & Woocher LLP
gluke@strumwooch.com

Rebecca Saltzman
Chief of Staff
Americans for Safe Access
rebecca@safeaccessnow.org

Caleb Dardick
CDA Strategies
caleb@cdastrategies.com

EFF Urges Appeals Court to Protect Innovation

San Francisco - The Electronic Frontier Foundation (EFF) has filed a brief urging the 9th U.S. Circuit Court of Appeals to reconsider a recent ruling that endangers features like search customization and user feedback on interactive web services.

The ruling came in a housing discrimination lawsuit against Roommate.com, which runs Internet forum where users can search for potential roommates. A three-judge panel held that Roommate.com could be held liable for the activity of its users because it “suggested, encouraged, or solicited” and then sorted and categorized content that may have violated fair housing law. But this reasoning threatens both current and future Internet innovators with potentially insurmountable liability problems — impacting everything from search engine functionality to the ability to tag content on media sharing sites such as YouTube and Flickr — and is directly contrary to federal law. As EFF argued Friday in its amicus brief in support of appeal, Roommate.com is immune to liability for its users’ activities under Section 230 of the Communications Decency Act, which specifically protects hosts of interactive computer services.

“Section 230 of the Communications Decency Act was passed specifically to help the Internet continue to grow without being tied down by regulation,” said EFF Staff Attorney Matt Zimmerman. “If service providers have to worry about potentially crushing liability, it will strongly discourage the development of new tools for online users. In fact, many of the tools we use already would be impacted by this ruling, potentially crippling innovations in search and customization.”

Search engines, for example, are designed to categorize and sort content, features potentially at risk under the Ninth Circuit’s ruling. Sites that solicit user feedback and opinions and allow searching by user ranking could also run afoul of the new ruling.

“Courts across the country have recognized the critical role that Section 230 plays in Internet innovation,” said Zimmerman. “The 9th Circuit should take this appeal and clarify that its strong protections remain in full force.”

For the full amicus brief:
http://www.eff.org/legal/cases/roomate.com/EFFroommateamicus.pdf

More on Section 230 of the Communications Decency Act:
http://www.eff.org/bloggers/lg/faq-230.php

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Justice Department Withholds Records on Electronic Surveillance

Washington, D.C. - On Thursday, July 26, at 11 a.m., the Electronic Frontier Foundation (EFF) will argue for the release of court orders that supposedly authorize the government’s highly controversial electronic domestic surveillance program that intercepts and analyzes millions of Americans’ communications.

The White House first acknowledged the surveillance program’s existence in 2005, claiming that it could be conducted without warrants or judicial authorization of any kind. But in January of this year, Attorney General Alberto Gonzales announced that the Foreign Intelligence Surveillance Court (FISC) had authorized collection of some communications and that the surveillance program would now operate under its approval. EFF filed a Freedom of Information Act (FOIA) request with Department of Justice (DOJ) for the FISC orders and other records concerning the purported changes in the program, but when the DOJ did not comply, EFF filed suit in federal court.

Thursday’s hearing, before Chief Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia, will include oral arguments from both EFF and the DOJ.

WHAT:
EFF v. Department of Justice

WHEN:
11 a.m.
Thursday, July 26

WHERE:
United States District Court for the District of Columbia
Courtroom 25A
333 Constitution Avenue, N.W.
Washington, D.C. 20001

For more on EFF’s lawsuit:
http://www.eff.org/flag/07403TFH

Contact:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org