San Francisco - The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive's founder to speak out for the first time about his battle against the record demand.

"The free flow of information is at the heart of every library's work. That's why Congress passed a law limiting the FBI's power to issue NSLs to America's libraries," said Brewster Kahle, founder and Digital Librarian of the Internet Archive. "While it's never easy standing up to the government -- particularly when I was barred from discussing it with anyone -- I knew I had to challenge something that was clearly wrong. I'm grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands."

The NSL was served on the Archive -- a digital library recognized by the state of California -- and its attorneys in November of 2007. The letter asked for personal information about one of the Archive's users, including the individual's name, address, and any electronic communication transactional records pertaining to the user. Kahle, who is also a member of EFF's Board of Directors, decided to fight the NSL because it exceeded the FBI's limited authority to issue such demands to libraries.

The Archive responded to the letter by handing over only publicly available documents and simultaneously filing a lawsuit challenging the letter. This lawsuit is the first known challenge to an NSL served on a library since Congress amended the national security letter provision in 2006 to limit the FBI's power to demand records from libraries.

The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive's Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI's misuse of NSLs.

"This is a great victory for the Archive and also the Constitution," said Melissa Goodman, staff attorney with the ACLU. "It appears that every time a national security letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records. In the absence of much needed judicial oversight – and with recipients silenced and the public in the dark – there is nothing to stop the FBI from abusing its NSL power."

"A miscarriage of justice was prevented here because the Archive decided to fight the unlawful demand for information and unconstitutional gag," said EFF Staff Attorney Marcia Hofmann. "The big question is, how many other improper NSLs have been issued by the FBI and never challenged?"

NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or "gagged," from disclosing that they have received the letters. The ACLU has challenged this Patriot Act statute in federal court in two other cases where the judges found the gags unconstitutional: one involving an Internet Service Provider (ISP); the second a group of librarians. In the ISP case, the district court invalidated the entire NSL statute. The U.S. Court of Appeals for the Second Circuit is expected to hear oral arguments in the government's appeal of that case next month.

Since the Patriot Act was passed in 2001, relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase, to nearly 200,000 between 2003 and 2006. EFF's investigations have uncovered multiple NSL misuses, including an improper NSL issued to North Carolina State University.

Last year Representative Jerrold Nadler (D-NY) introduced H.R. 3189, the "National Security Letters Reform Act of 2007." Senator Russell Feingold (D-WI) introduced a Senate bill of the same name (S. 2088). Both bills are aimed at narrowing the statute by enacting limits on when and how NSLs can be used and bringing the gag order provision in line with the Constitution.

In addition to Goodman and Hofmann, attorneys on the case are Jameel Jaffer and Danielle Tully of the ACLU National Security Project, Ann Brick of the ACLU of Northern California, and Kurt Opsahl of EFF.

For the newly unsealed documents (still partially redacted):
http://www.eff.org/cases/archive-v-mukasey?docs

For more information about this case:
http://www.eff.org/cases/archive-v-mukasey

For more information on NSLs:
http://www.eff.org/issues/foia/07656JDB

Contacts:

For Brewster Kahle:
Paul Hickman
Internet Archive
info@archive.org

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

James Freedland or Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org

San Francisco - The Electronic Frontier Foundation (EFF) and the law firm of Sheppard Mullin Richter & Hampton Thursday filed a motion to dismiss a lawsuit brought against the operator of the popular online encyclopedia Wikipedia, arguing that federal law immunizes it against suits over statements made by its users.

Literary agent Barbara Bauer filed a complaint in New Jersey Superior Court in January against Wikipedia posters as well as the site itself, claiming in part that the Wikimedia Foundation was liable for statements identifying her as one the "dumbest of the twenty worst" agents and that she had "no documented sales at all." In court papers filed Thursday, Wikimedia argues that under Section 230 of the Communications Decency Act, operators of "interactive computer services" such as Wikipedia cannot be held liable for users' comments. In addition, Wikimedia argues that the statements are protected speech under the First Amendment and New Jersey law.

The ability to utilize the collaborative input of its users without fear of costly lawsuits is essential to Wikipedia's ongoing success, said Wikimedia Foundation General Counsel Mike Godwin.

"We provide a platform through Wikipedia for smart citizens to give their knowledge back to a larger culture," Godwin said. "Our ability to offer citizens that platform is what's at stake in this case."

Since it was signed into law over a decade ago, courts across the country have consistently applied the protections of Section 230 broadly, fulfilling Congress' intent "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation."

"Congress passed Section 230 of the Communications Decency Act in order to protect websites' operators like Wikipedia from suits like this one," said James Chadwick of Sheppard Mullin. "It's simple but it's fundamental: Congress has decided that Internet censorship isn't the answer, so websites aren't liable for statements posted by their users."

Section 230's blanket protection of sites like Wikipedia does not mean that alleged defamation on the Internet cannot be challenged in court. Instead, the law requires that litigants direct their efforts at the speakers themselves and not the forums where statements were made.

"Wikipedia continues to be a tremendous resource for people around the globe," added EFF Senior Staff Attorney Matt Zimmerman. "Without strong liability protection, it would be difficult for Wikipedia to continue to provide a platform for user-created encyclopedia content."

For the full motion to dismiss: http://www.eff.org/files/filenode/wikimedia/motiontoquashmemo-wikimedia....

Contacts:

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

Mike Godwin
General Counsel
Wikimedia Foundation
mgodwin@wikimedia.org

James Chadwick
Partner
Sheppard Mullin Richter & Hampton
jchadwick@sheppardmullin.com

San Francisco - The Electronic Frontier Foundation (EFF) and a broad coalition, including civil rights groups, professional associations and technologists, called on Congress today to hold oversight hearings on the Department of Homeland Security's search and seizure of electronic devices at American borders.

The press has widely reported disturbing stories about U.S. citizens subject to intrusive searches of their laptops and cell phones. But a recent court decision found that customs officials can search travelers' computers at the border without suspicion or cause. In a letter sent to the House and Senate Homeland Security and Judiciary committees today, the coalition urges lawmakers to consider passing legislation to prevent abusive search practices by border agents and to protect all Americans from suspicionless digital border inspections.

"Our computers, cell phones, and other electronic devices hold a vast amount of personal information like financial data, health histories, and personal emails and letters," said EFF Staff Attorney Marcia Hofmann. "In a free country, the government cannot have unlimited power to read, seize, and store this information without any oversight."

So far, the Department of Homeland Security has refused to release its policies and procedures for conducting these intrusive searches. EFF and the Asian Law Caucus have filed suit against the Department of Homeland Security to obtain the information through the Freedom of Information Act.

"Your privacy could be at risk even if you don't travel yourself. Your financial institution, your insurer, and other enterprises hold extensive personal data about you and your family," said EFF Senior Staff Attorney Lee Tien. "If agents of those groups travel internationally, your information could be exposed to officials at the border or potentially copied and stored in government databases. Americans should know how and why electronic data is seized and kept by the government, and who is able to access it at the border and in the years afterwards."

In addition to EFF, the coalition signing today's letter includes more than 40 organizations and individuals, including the Association for Corporate Travel Executives, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Rutherford Institute, and prominent technologists such as Bruce Schneier and Whitfield Diffie.

For the full letter to Congress:
http://www.eff.org/press/archives/2008/05/01/border-search-open-letter

For more on EFF's suit on border searches:
http://www.eff.org/cases/foia-litigation-border-searches

Contacts:

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

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

San Francisco - The Electronic Frontier Foundation (EFF) is urging Microsoft Corporation to fix the problems it will cause when it shuts down the MSN Music validation servers, making it impossible for customers to transfer their music files to new computers or even upgrade their operating system.

In an open letter sent to Microsoft Chief Executive Officer Steve Ballmer today, EFF outlines five steps Microsoft must take to make things right for MSN Music customers -- including a issuing a public apology, providing refunds or replacement music files, and launching a substantial publicity campaign to make sure all customers know their options.

"MSN Music customers trusted Microsoft when it said that this was a safe way to buy music, and that trust has been betrayed," said EFF Staff Attorney Corynne McSherry. "If Microsoft is prepared to treat MSN Music customers like this, is there any reason to suppose that future customers won't get the same treatment?"

MSN Music sold song downloads encumbered with digital rights management (DRM), allowing the music to be played only on approved devices. If you upgraded your computer or operating system, you needed to "reauthorize" your music files with MSN Music's DRM server. But last week, Microsoft announced that it would deactivate those servers because of the complexity of maintaining the technology -- meaning that customers face losing the ability to play their purchased music if they get a new computer or if the hard drive crashes on the old one. Microsoft's only suggestion for customers so far is to export all purchases onto a CD and then recopy it back onto new computers.

"Microsoft is asking its customers to spend more time, labor, and money to make degraded copies of music that was purchased in good faith," said EFF Executive Director Shari Steele. "This outcome was easily foreseeable from the moment Microsoft chose to wrap MSN Music files in DRM. Microsoft customers should not have to pay for Microsoft's bad business decisions."

EFF's letter also calls on Microsoft to eliminate DRM from its Zune music service now -- or at least to publicly commit to compensating future customers for the inevitable future DRM debacles.

"With MSN Music, Microsoft has admitted just how expensive, clumsy, and unfair DRM is. It's time for Microsoft to reject this sloppy technology, and for customers to demand something better," McSherry said.

For the full open letter:
http://www.eff.org/press/archives/2008/04/28/microsoft-open-letter

Contact:

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