August 05, 2005

FCC Issues Rule Allowing FBI to Dictate Wiretap-Friendly Design for Internet Services

Tech Mandates Force Companies to Build Backdoors into Broadband, VoIP

Washington, DC - Today the Federal Communications Commission (FCC) issued a release announcing its new rule expanding the reach of the Communications Assistance to Law Enforcement Act (CALEA). The ruling is a reinterpretation of the scope of CALEA and will force Internet broadband providers and certain Voice-over-IP (VoIP) providers to build backdoors into their networks that make it easier for law enforcement to wiretap them. The Electronic Frontier Foundation (EFF) has argued against this expansion of CALEA in several rounds of comments to the FCC on its proposed rule.

CALEA, a law passed in the early 1990s, mandated that all telephone providers build tappability into their networks, but expressly ruled out information services like broadband. Under the new ruling from the FCC, this tappability now extends to Internet broadband providers as well.

Practically, what this means is that the government will be asking broadband providers - as well as companies that manufacture devices used for broadband communications – to build insecure backdoors into their networks, imperiling the privacy and security of citizens on the Internet. It also hobbles technical innovation by forcing companies involved in broadband to redesign their products to meet government requirements.

"Expanding CALEA to the Internet is contrary to the statute and is a fundamentally flawed public policy," said Kurt Opsahl, EFF staff attorney. "This misguided tech mandate endangers the privacy of innocent people, stifles innovation, and risks the functionality of the Internet as a forum for free and open expression."

At the same time, the Department of Justice (DOJ) is asking airlines to build similar backdoors into the phone and data networks on airplanes. EFF and the Center for Democracy and Technology (CDT) submitted joint comments to the FCC arguing against the DOJ's unprecedented and sweeping new technology design mandates and anticipatory wiretapping system.

The FCC's new proposal to expand CALEA to airline broadband illustrates the fallacy of law enforcement's rationale for its CALEA request. The DOJ takes the position that broadband has "substantially replaced" the local telephone exchange, but this claim is reduced to the point of absurdity aboard an airplane and opens the door for CALEA to cover just about anything.


Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation

Posted at 05:49 PM

August 04, 2005

FBI’s "National Security Letters" Threaten Online Speech and Privacy

EFF Urges Appeals Court to Find Secret Subpoena Power Unconstitutional

New York - The Electronic Frontier Foundation, joined by several civil liberties organizations and online service providers, filed a friend-of-the-court brief yesterday in the case of Doe v. Gonzales arguing that National Security Letters (NSLs) are unconstitutional. NSLs are secret subpoenas for communications logs, issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers produce records of where their customers go on the Web, as well as what they read and with whom they exchange email. The FBI can even issue NSLs for information about people who haven't committed any crimes.

A federal district court has already found NSLs unconstitutional, and the government is now appealing the case. In its brief to the Second Circuit Court of Appeals, EFF argues that these secret subpoenas imperil free speech by allowing the FBI to track people's online activities. In addition, NSLs violate the First and Fourth Amendment rights of the service providers who receive the secret government demands. EFF and its cosigners argue that NSLs for Internet logs should be subject to the same strict judicial scrutiny applied to other subpoenas that may reveal information about the identities of anonymous speakers – or their private reading habits and personal associations.

Yet NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.

"The Constitution does not allow the FBI to secretly demand logs about Internet users' Web browsing and email history based on vague claims of national security," said EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. "The district court's decision that National Security Letters are unconstitutional should have been a wake-up call to the House of Representatives, which just voted to renew the PATRIOT Act without adding new checks against abuse."

Although such protections are lacking in the PATRIOT renewal bill that the House of Representatives recently passed, they are included in the Senate bill. It is not yet clear whether those protections will be included in the final bill when it reaches the President's desk.

EFF was joined on the brief by the Center for Constitutional Rights, the Center for Democracy and Technology, the Online Policy Group, Salon Media Group, Inc., Six Apart, Ltd., the US Internet Industry Association, and ZipLip, Inc.


Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation

Posted at 10:10 AM

August 03, 2005

Internet Critic of Delaware Politician Has Right to Anonymity

Message Board Poster Criticized Smyrna Town Council Member’s Job Performance

NOTE: This is a press release from Public Citizen, which EFF is recirculating for your information.

Washington, DC - A person who posted Internet messages criticizing a Delaware politician's leadership skills has a right to remain anonymous, Public Citizen urged the Supreme Court of Delaware today in a "friend of the court" brief. The American Civil Liberties Union, the Electronic Frontier Foundation and the American Civil Liberties Union of Delaware also joined the friend of the court brief.

The Internet critic, known in court documents as John Doe No. 1, posted two messages on the Smyrna/Clayton Issues Blog (web log) in September 2004. The messages stated that Patrick Cahill, a member of the Smyrna Town Council, had diminished leadership skills, energy and enthusiasm, and referred to Cahill's "character flaws," "mental deterioration," and "failed leadership." John Doe No. 1, known as "Proud Citizen" on the blog, also stated, "Gahill [sic] is…paranoid."

On November 2, Cahill and his wife sued John Doe No. 1 and three other anonymous critics, claiming that John Doe No. 1 had accused Cahill of suffering from "mental defects and diseases," and that the misspelling of his name implied he was "engaging in extramarital, homosexual affairs." Without notice to the critics, the Cahills sought to identify the critics through a subpoena to the Internet access provider, which notified the four critics of the subpoena.

John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure would violate his First Amendment right to criticize a public official anonymously, but the trial court denied the motion. John Doe No. 1 appealed.

Public Citizen, which has been a strong defender of First Amendment rights on the Internet, urged the court to allow John Doe No. 1 to remain anonymous. Blogs provide individuals such as Cahill the opportunity to immediately respond to postings they believe are false or misleading at no cost, argued Paul Alan Levy, a Public Citizen attorney. Further, courts have ruled that subpoenas seeking the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet.

"The blog postings at issue here contained standard criticism of a public official's job performance – not defamatory statements – and it was well within John Doe No. 1's right to make the comments," Levy said. "We urge the court to rule that this Internet critic has a First Amendment right to speak anonymously on the Internet."

Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of Wilmington, Delaware, served as local counsel.


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Posted at 11:59 AM

August 02, 2005

Secret Documents About Indymedia Server Disappearance Unsealed

Government Order Demanded Only Logs; Web Host Rackspace Handed Over Server

San Antonio, TX - The Electronic Frontier Foundation (EFF) last week won a motion allowing it to access sealed court documents about the mysterious disappearance of two web servers used to host news websites for Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists. After six months of secret litigation, EFF obtained a copy of the federal court order that resulted in the October 2004 handover of copies of Indymedia servers to the government by Indymedia's web host. That handover resulted in the silencing of more than 20 news websites and radio feeds for nearly a week.

However, the unsealed documents reveal that the government never officially demanded the computer servers -- the subpoena to Rackspace only requested server log files. This contradicts previous statements by the web host that it took the servers offline because the government had demanded the hardware. The documents also contradict Rackspace's claim that it had been ordered by the court not to discuss publicly the government's demand. It cannot be determined from the unsealed documents whether or not the government informally pressured Rackspace to turn over the servers. By giving the government more data than it requested, the company not only violated the privacy of Indymedia journalists whose information was housed on the servers, but also undermined the free flow of information by taking Indymedia's websites offline. Moreover, the logs that the government requested didn't exist, so Rackspace should never have given the government anything at all.

"When Rackspace received a government demand to examine logs that didn't exist, it had a responsibility to the customer and to the principles of freedom of the press to fight the order and resolve this without taking more than 20 news sites off the Internet," said Kurt Opsahl, EFF staff attorney.

"Rackspace may claim to provide its customers with 'fanatical support,' but in this case it looks like it was more interested in serving the government," added Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "Despite these new revelations, a key question remains: Did government agents intentionally mislead the web host into thinking it had to hand over complete copies of the Indymedia servers?"

The court order served on San Antonio-based Rackspace Managed Hosting was issued based on a treaty request from the Italian government as part of an ongoing criminal investigation in that country.

EFF was assisted in this case by James A. Hemphill and W. Reid Whittliff with Graves, Dougherty, Hearon & Moody in Austin, Texas.

Read the Commissioner's subpoena here.

Read the order unsealing the documents here.

There are many more unsealed documents here .


Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation

Posted at 02:32 PM