EFF Appeals Dismissal of Warrantless Wiretapping Case: Via EFF.org Updates.

EFF today filed its appeal to the 9th Circuit Court of Appeals of the dismissal of Jewel v. NSA, the case EFF brought against the U.S. government and government officials on behalf of AT&T customers to stop the National Security Agency's illegal, unconstitutional, and ongoing mass surveillance of their communications and communications records. The case arises from the still growing stacks of evidence confirming the surveillance, including the technical documents presented by former AT&T employee Mark Klein that describe the NSA's secret mass wiretapping facility in San Francisco. [ Read more ... ]

EFF Asks Illinois Appellate Court to Block Unmasking of Anonymous Online Critic: Via EFF.org Updates.

Chicago - The Electronic Frontier Foundation (EFF) and the Media Freedom and Information Access Practicum (MFIA) at Yale Law School filed a friend-of-the-court brief today urging the Illinois Court of Appeals to block the unmasking of an anonymous online critic of a local political candidate.

The critic, commenting on a story on the website of a suburban Chicago newspaper called the Daily Herald, engaged in a heated debate with other commenters. One turned out to be the son of the village trustee candidate in Buffalo Grove, Illinois, who was discussed in the article. The candidate, Lisa Stone, who eventually won her race, asked a state court to order the newspaper to release the critic's name and address without appropriately showing that the statements directed towards her son were defamatory or otherwise illegal. Stone indicated that she may choose to subsequently file a lawsuit once she determines the critic's identity through the pre-complaint procedure.

"Because of the enormous potential for abuse, the First Amendment requires litigants to demonstrate that they have a legitimate case before they can use the courts to unmask anonymous online critics," said EFF Senior Staff Attorney Matt Zimmerman. "Insults are not enough, especially when the conversation takes place in the context of a political campaign." [ Read more ... ]

Supreme Court Takes ‘Informational Privacy’ Case: Via Threat Level.

The U.S. Supreme Court is agreeing to decide how much personal information the federal bureaucracy may acquire on its workers.

The justices, without comment, decided Monday to review a lower-court decision surrounding the concept of so-called “informational privacy.” The 9th U.S. Circuit Court of Appeals in San Francisco struck down intrusive background checks last year on nearly three dozen National Aeronautics and Space Administration contractors as being too invasive — calling them an unconstitutional, “broad inquisition.”

The checks sought information from any source surrounding their sex lives, finances and even drug use. The contractors being investigated were not privy to classified information. [ Read more ... ]

Funeral Flap: Justices Weigh Religion, Speech Rights: Via Threat Level.

The Supreme Court agreed Monday to delve into the sensitive question of whether the First Amendment protects anti-gay protesters carrying placards outside military funerals saying “America is Doomed,” “Thank God for 9/11″ and other volatile phrases like “Thank God for dead soldiers.”

The messages and picketing are part of a Kansas church’s belief that the United States’ tolerance for homosexuality is cause for soldiers’ deaths in Iraq and Afghanistan.

The case the justices decided to review Monday tests the boundaries of free speech versus freedom of religion — doctrines embodied in the First Amendment.

Without comment, the justices agreed to review last year’s federal appellate decision overturning a $5 million verdict (.pdf) in favor of a Baltimore father who sued the Westboro Baptist Church of Topeka and its pastor, Fred Phelps, in 2006. The father of Marine Lance Cpl. Matthew Snyder was awarded damages for, among other things, invasion of privacy and emotional distress for the events that occurred outside his son’s funeral at a Catholic church in Maryland. [ Read more ... ]

Appeals Court Backs EFF Push for Telecom Lobbying Documents Disclosure: Via EFF.org Updates.

San Francisco - Today a federal appeals court rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans. As the court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."

The Electronic Frontier Foundation (EFF) has been seeking records detailing the telecoms' campaign for retroactive legal immunity under the Freedom of Information Act (FOIA). Telecom immunity was enacted as part of the FISA Amendments Act of 2008.

"Today's ruling is an important one for government and corporate accountability," said EFF Staff Attorney Marcia Hofmann. "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret." [ Read more ... ]

Court Keeps White House Spy Docs Secret: Via Threat Level.

A federal appellate panel on Tuesday blocked a court order requiring disclosure of e-mail between the White House, Justice Department, National Security Agency and Office of the Director of National Intelligence — communications that paved the way for new spy legislation.

The 2008 messages were a precursor to legislation that year to kill litigation against the nation’s carriers for funneling Americans’ communications to the National Security Agency without warrants.

The decision by the 9th U.S. Circuit Court of Appeals reverses a California judge who ordered disclosure of those e-mails and the names of telco company lobbyists who pushed for the legislation. The Electronic Frontier Foundation, a civil rights group in San Francisco, sought the e-mail and lobbyist information under a Freedom of Information Act claim. [ Read more ... ]

EFF Fights for Cell Phone Users' Privacy in Thursday Hearing: Via EFF.org Updates.

Philadelphia - The Electronic Frontier Foundation (EFF) will be arguing this Thursday before the U.S. Court of Appeals for the 3rd Circuit in Philadelphia, urging the court to block a government attempt to seize telephone company records detailing a cell phone user's past locations without first getting a search warrant. [ Read more ... ]

Lawyers Challenge Lowered Amount of ‘Shocking’ File Sharing Award: Via Threat Level.

Lawyers for a music file sharer said Monday they would challenge a judge’s order reducing from $1.92 million to $54,000 the amount their client, Jammie Thomas-Rasset, must pay the recording industry for copyright infringement of 24 songs.

The appeal concerns Friday’s head-spinning order by U.S. District Judge Michael Davis. The Minnesota federal judge dramatically lowered the amount a jury in June ordered Thomas-Rasset to pay — after being found liable in what at the time was the nation’s first Recording Industry Association of America file sharing case to reach trial. Most of the RIAA’s 30,000 lawsuits were settled out of court for a few thousand dollars during the record companies’ six-year litigation campaign, which is winding down.

Joe Sibley, Thomas-Rasset’s attorney, said in a telephone interview that even the reduced amount of damages is unconstitutionally excessive. It’s a penalty of 2,250 times an assumed $1 cost of a music download. [ Read more ... ]

Judge Tosses NSA Spy Cases: Via Threat Level.

A federal judge is dismissing lawsuits accusing the government of teaming with the nation’s telcos to funnel Americans’ electronic communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker’s decision was a major blow to the two suits testing warrantless eavesdropping and executive branch powers implemented following the 2001 terror attacks. The San Francisco judge said the courts are not available to the public to mount that challenge.

“A citizen may not gain standing by claiming a right to have the government follow the law,” (.pdf) Walker ruled late Thursday.

He noted that the plaintiffs include most every American connected to the internet or to have used a telephone — meaning the lawsuits boil down to a “general grievance” and are barred. The decision came days after a government audit showed the telecom companies and FBI collaborated for four years, between 2003 and 2007, to violate federal wiretapping laws. [ Read more ... ]

EFF Plans Appeal of Jewel v. NSA Warrantless Wiretapping Case: Via EFF.org Updates.

San Francisco - A federal judge has dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency's mass surveillance of millions of ordinary Americans' phone calls and emails.

"We're deeply disappointed in the judge's ruling," said EFF Legal Director Cindy Cohn. "This ruling robs innocent telecom customers of their privacy rights without due process of law. Setting limits on Executive power is one of the most important elements of America's system of government, and judicial oversight is a critical part of that." [ Read more ... ]

Salon Radio: Critical state secrets hearing today: Via Salon: Glenn Greenwald.

(updated below w/transcript - Update II)

[link to recorder fixed]

The case of Mohamed v. Jeppesen -- brought by five victims of Bush's torture/rendition program against the Boeing subsidiary that shipped them to be tortured -- was the Obama DOJ's first test of its commitment to restore basic accountability and the rule of law.  Back in February, it resoundingly failed that test when they demanded that the case be dismissed in its entirety by invoking the same radicalized version of the "state secrets" privilege which the Bush DOJ, to great controversy, repeatedly invoked.  That was the first sign that things would go terribly awry with Obama's rule of law and civil liberties record.  This warped rendition of the "state secrets" doctrine transforms it from a long-standing, simple evidentiary privilege (i.e., this specific document is too sensitive to use in the litigation) into a sweeping, dangerous shield of immunity for government lawbreaking (i.e., courts have no right to review the legality of the crimes we commit in secret). 

The Obama administration now insists that courts must dismiss lawsuits alleging presidential lawbreaking whenever the CIA Director claims the lawsuit would jeopardize state secrets; or, as the ACLU Brief puts it, "torture victims must be denied a day in court based on an Affidavit submitted by their torturers."  The Obama DOJ has gone on to invoke that same Bush-created version of the secrecy theory to demand dismissal of numerous other cases alleging various types of lawbreaking by the Executive Branch. [ Read more ... ]

Lawsuit Challenging Unconstitutional Spying Should Be Reinstated, Says ACLU: Via American Civil Liberties Union.

FISA Amendments Act Must Be Subject To Judicial Review

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

NEW YORK – The American Civil Liberties Union filed a brief late Wednesday arguing that its lawsuit challenging an unconstitutional government spying law should be reinstated. The ACLU and the New York Civil Liberties Union filed the landmark lawsuit in July 2008 to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls by the millions, without a warrant and without suspicion of any kind.

"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," said Jameel Jaffer, Director of the ACLU National Security Project. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws." [ Read more ... ]

The Turducken Approach to Privacy Law / A Call to Clear the Tangled Thicket of Privacy Law : Via NYTimes.com > Privacy.

In June, the metaphor of the turducken made its first appearance in American jurisprudence.

“It’s a bit like building a dinosaur from a jawbone or skull fragment,” a dissenting federal appeals court judge wrote of his colleagues’ expansive reasoning, “and the result looks more like a turducken.”

[...]

The dissenter was Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in San Francisco. He is a master of the dissent that might as well be a petition for Supreme Court review of the majority’s decision. This one, protesting his court’s refusal to rehear a case about the privacy rights of employees, said the law in that area had become a tangled thicket. [ Read more ... ]

GPS and Privacy Rights: Via Editorial - NYTimes.com .

A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.

Antoine Jones was charged with being part of an interstate drug conspiracy. The government obtained evidence against Mr. Jones by putting a GPS device on his Jeep. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. The government responded that the evidence was admissible because it did not need to get a court order at all. [ Read more ... ]

A court decision that reflects what type of country the U.S. is: Via Salon: Glenn Greenwald.

It's not often that an appellate court decision reflects so vividly what a country has become, but such is the case with yesterday's ruling by the Second Circuit Court of Appeals in Arar v. Ashcroft (.pdf).  Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal's McGill University, he has lived in Canada since he's 17 years old.  In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was "rendered" -- despite his pleas that he would be tortured -- to Syria, to be interrogated and tortured.  He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.  Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.  I've appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria. [ Read more ... ]

Once Again, Government Moves to Delay Release of Telecom Lobbying Documents: Via EFF.org Updates.

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. [ Read more ... ]

It’s Still A Duck: Court Re-Affirms That First Sale Doctrine Can Apply to “Licensed” Software: Via EFF.org Updates.

Building on a prior ruling, a federal court has re-affirmed that a Seattle man was not infringing copyright law by re-selling software he obtained from an Autodesk customer.

The ruling is bound to frustrate the copyright industries, which have struggled for years to convince courts and their customers that the only thing you “buy” when you buy software is a limited and temporary right to use that software under certain conditions. In other words, they claim buyers aren’t owners.

The distinction is no mere technicality. Under the Copyright Act, owners of copyrighted material are given substantial rights in the particular copies they purchase. [ Read more ... ]

The Government Isn’t Above the Law: Via Blog of Rights: Official Blog of the American Civil Liberties Union.

Or at least it shouldn’t be. Today we filed an appeal of our lawsuit challenging the constitutionality of the FISA Amendments Act (FAA), the law passed last summer that essentially legalized former President Bush’s warrantless wiretapping of Americans’ international phone calls and emails. In August, U.S. District Court Judge John G. Koeltl for the Southern District of New York dismissed our case on "standing" grounds, ruling that the plaintiffs — among them journalists, lawyers and nongovernmental organizations who engage in sensitive international communication which they have reason to fear will be intercepted by the government — did not have the right to challenge the new surveillance law because they could not prove that their own communications had been monitored under it. [ Read more ... ]

Attorneys Can See Classified Info in Coffee Table Spy Suit: Via Threat Level.

A federal judge in Washington has ordered the government to grant security clearances to lawyers on both sides of a lawsuit claiming illegal spying against a DEA agent, in a ruling that challenges the government’s long-held claim that the executive branch alone has the authority to determine who can access classified material.

The attorneys in the case, which was noted by Secrecy News, need the security clearances to obtain classified knowledge held by their clients so they can adequately argue the lawsuit, the judge said, in an August 26 ruling supported by attorneys on both sides of the lawsuit, but bitterly opposed by the government.

On Thursday, a federal appeals court ordered an emergency stay of the order pending an appeal by the Justice Department. [ Read more ... ]

Want a Wiretap Warrant? No Problem, Court Says: Via Threat Level.

Despite refusing to “endorse” the government’s tactics in securing a warrant for a wiretap, a federal appeals court is ruling that authorities could use the fruits of their questionable eavesdropping in prosecuting an alleged drug dealer.

The 2nd U.S. Circuit Court of Appeals overturned a lower-court judge who last year suppressed the 50 grams of crack cocaine that was evidence in the case against a man originally suspected of plotting terrorism against the United States. The lower court said a magistrate judge erroneously issued the warrant, breaching the Omnibus Crime Control and Safe Streets Act of 1968, which was designed to strike a balance between law enforcement and “the privacy rights of the individual.” [ Read more ... ]

FCC enforcing imaginary laws in P2P ruling, says Comcast: Via Law & Disorder Section - Ars Technica.

Almost a year ago, Comcast pledged that it would sue the Federal Communications Commission over its Order sanctioning the cable ISP for peer-to-peer throttling. Now, the company has filed its case with the United States Court of Appeals for the District of Columbia Circuit. Although Comcast's legal arguments are complex, the crux is simple: there were and still are no statutes or credible regulations that support the Commission's authority to act on this matter, the company says. [ Read more ... ]

Another Court Deals Major Blow to DVD Copying: Via Threat Level.

A California appeals court on Wednesday overturned a lower court ruling that had paved the way for a $10,000 DVD copying system called Kaleidescape and other products from the company with the same name.

The 6th District Court of Appeal in San Jose, California, was the second court in two days to rule that companies are bound (.pdf) by the entire Content Scramble System licensing regime, which prevents duplicating DVDs.

A San Francisco federal judge ruled late Tuesday that RealNetworks’ DVD-copying software was a breach of the Content Scramble System license, which is required for DVDs and computers to play DVDs. The license allows DVD players to descramble the encrypted code on a DVD, but the license prohibits the duplication of a DVD. Both RealNetworks and Kaleidescape claimed a loophole in the CSS license allowed the copying of DVDs. [ Read more ... ]

John Yoo’s Dragnet: Via Blog of Rights: Official Blog of the American Civil Liberties Union.

(Cross-posted to CBSNews.com and Daily Kos.)

In a recent Wall Street Journal piece, former Justice Department lawyer John Yoo defends the Bush administration’s warrantless wiretapping program with the claim that, after the September 2001 terrorist attacks, the government needed the ability to monitor communications to and from Osama bin Laden.

It is no surprise that Yoo defends the warrantless wiretapping program; as a lawyer for the Bush administration’s Office of Legal Counsel, he wrote the secret legal memos that professed to supply a basis for it. But Yoo’s public defense of the program obscures what’s really at stake.

When the warrantless wiretapping program was [ Read more ... ]

Feds Say ‘Dragnet’ Surveillance Lawsuit Threatens Security: Via Threat Level.

SAN FRANCISCO – Citing the state secrets privilege and other legal claims, the Obama administration urged a federal judge here Wednesday to dismiss a lawsuit claiming Americans’ electronic communications are being siphoned to the National Security Agency without warrants.

During a two-hour hearing, a top-ranking Justice Department litigator declined to confirm or deny the existence of what the Electronic Frontier Foundation described in its lawsuit as ongoing “dragnet” surveillance, which the EFF hopes the lawsuit will stop.

“President Obama inherited a number of surveillance activities,” Anthony Coppolino, special litigation counsel for the administration, told U.S. District Judge Vaughn Walker. “There remain rare occasions where the privilege has to be invoked to prevent harms to national security.”

Coppolino added that the government is immune from lawsuits regarding the conduct at issue. Surveillance, he said, “is the crown jewel of the National Security Agency.”

Walker did not tip his hat on whether he would toss the case. But history suggests he may not. Still, even if the case survives its initial stage, the EFF has a long road to travel before actually proving its case. [ Read more ... ]

9th Circuit Fills Prescription for Religious Refusals at the Pharmacy: Via Blog of Rights: Official Blog of the American Civil Liberties Union.

(Originally posted at RH Reality Check.)

Last week, the U.S. Court of Appeals for the 9th Circuit lifted the injunction (PDF) on the Washington State pharmacy rules that protect a patient’s right to access medication without discrimination or delay. This is good news for the millions of women seeking to purchase contraception at pharmacies.

Across the country, we hear stories of individual pharmacists and pharmacies refusing to fill prescriptions based on a religious objection. Many times these stories come from patients trying to fill prescriptions for birth control, including emergency contraception.

Because the ACLU is committed to the health care needs of patients and the religious freedom of individual pharmacy employees, we advocate for solutions that protect both. [ Read more ... ]