EFF has asked a federal court to reject efforts by Echostar to get the names and addresses of every customer that purchased a free-to-air satellite receiver. Echostar claims that the receiver can be modified to pirate DISH satellite TV programming. EFF argues that Echostar's demand, which seeks all purchasers regardless of whether they actually pirated DISH TV, would violate user privacy and leave innocent purchasers vulnerable to bogus legal threats.

On Sept. 29, 2008, Magistrate Judge Seeborg agreed with Freetech and EFF, refusing to allow Echostar to obtain the identity and contact information of every individual who purchased a Freetech receiver. The court concluded that "the requests for customer lists ... could lead to the perceived harassment of legitimate users and a cocomitant chilling effect on the purchase and lawful use of Freetech's FTA receivers."

In Bunnell v. Motion Picture Association of America (MPAA), EFF filed a brief with the 9th U.S. Circuit Court of Appeals arguing that federal wiretapping law protects emails from unauthorized interception while they are temporarily stored on the email servers that transmit them. This case was brought against the MPAA by the owners and operators of TorrentSpy, a search engine that let Internet users locate files on the BitTorrent peer-to-peer network. After a business dispute, one of TorrentSpy's independent contractors hacked into the company email server and configured it to copy and forward all incoming and outgoing email to his personal account, and then sold the information to the MPAA. However, the federal district court ruled that because the emails were stored in the mail server for several milliseconds during transmission, they were not technically "intercepted" under the federal Wiretap Act. In its amicus brief, EFF argues that this dangerous ruling is incorrect as a matter of law and must be overturned in order to prevent the government from engaging in similar surveillance without a court order.

No. 07-6346-CW (N.D. Cal)

FBI Withdraws Unconstitutional NSL Served on the Internet Archive

In December 2007, the Internet Archive, along with its counsel the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF), filed a lawsuit challenging a national security letter issued to the Archive. (Internet Archive, et al v Mukasey et al, No. 07-6346-CW (N.D. Cal)). The lawsuit was filed under seal due to the strict non-disclosure rules imposed by the national security letter authority. In April 2008, the government formally withdrew the unconstitutional letter and settled the case, and on May 5, 2008 the Court unsealed the case, allowing this story to become public for the first time.

In the lawsuit, the Archive challenged the constitutionality the Federal Bureau of Investigation (FBI)'s authority to impose broad and effectively permanent non-disclosure obligations on those served with NSLs. The lawsuit also challenged the FBI’s authority to issue the NSL to the Internet Archive. The NSL improperly demanded information the FBI was not entitled to obtain because the Archive is a library that is not subject to NSLs since the activity at issue was not the provision of an electronic communication service. The Archive is protected by 18 U.S.C. 2709(f), a 2006 amendment Congress made to the Electronic Communications Privacy Act to limit the FBI's ability to demand records from libraries.

The Internet Archive

The Internet Archive is a digital library, founded in 1996 with the purpose of offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format. Internet Archive’s collections includes texts, audio, moving images, and software as well as archived web pages. The Archive’s founder, Brewster Kahle, is also the Chairman of the Board of Directors as well as one of the Archive’s Digital Librarians. He is also a member of the EFF Board of Directors.

To fulfill its mission, the Archive works with national libraries, museums, universities, and the general public to collect and offer free access to materials in digital format. Some of its partners include the Library of Congress, National Archives, and the British Libraries. The Archive has collected snapshots of all public web pages, except those that have opted not to be archived, every two months for the last ten years. In addition, the Archive has digitized archival and educational movies since 1999. The Archive also accepts donated material from individual patrons.

Over the years, the Archive’s collection has proved valuable to various federal government agencies, including the Department of Justice, the FBI and the Central Intelligence Agency. Many U.S. Attorneys and other law enforcement officials find the Archive a critical resource, and the Archive has regularly received requests for information about its collections (most frequently, the Wayback Machine, a historical archive of websites).

The Archive is very protective of its patrons’ privacy. The only identifying information the Archive collects is the unverified email address supplied by the patron. The Archive does not collect the IP addresses used to submit files to the collections, nor the IP addresses of those reading, listening or watching its collection.

The National Security Letter

On November 26, 2007, an FBI Special Agent served an NSL on the Internet Archive through its legal representative, EFF. The NSL sought information about a user of the Internet Archive, including the subscriber’s name, address, and any electronic communication transactional records pertaining to the user.

The FBI attached a list of information it considers to be “electronic communication transactional records” to the NSL. Pursuant to the settlement, the list remains redacted. While the statute does not authorize NSLs for the content of communications, the redacted list does not limit itself to only non-content information.

The NSL also included a gag, prohibiting the Archive and its counsel from disclosing the existence of the letter. Indeed, the Archive was asked not to send the records through regular mail or discuss the substance of the request over the telephone.

As a result of the unconstitutional gag, the Archive’s Brewster Kahle was unable to discuss the letter and the legal issues it presented with the rest of the Archive’s Board of Directors. While Congress recently held hearing on the FBI’s misuse of national security letters, neither the Archive, the EFF nor the ACLU were able to discuss this NSL with legislators. (Both the House and the Senate are currently considering NSL reform legislation).

The Archive’s Response

On December 17, 2007 the Archive responded to the NSL, voluntarily providing the publicly-available information responsive to the government’s request. However, because the NSL authority in the ECPA is unconstitutional and because the Archive is a library, the Archive simultaneously filed a lawsuit challenging the NSL in court.

The NSL statute violates the First Amendment by investing the FBI with the authority to suppress speech without meaningful judicial review and definite and objective standards, and by failing to require that gag orders issued under the statute be narrowly tailored to a compelling government interest.

The NSL law also violates the principle of separation of powers by effectively transferring to the executive branch the final authority to determine whether speech should or should not be suppressed.

The Archive remained open to settlement and the FBI (through its counsel at the Department of Justice) eventually agreed to withdraw the unconstitutional NSL, including the unconstitutional gag imposed with the NSL. The negotiations took approximately four months. Once the case was settled, the Archive and the FBI jointly moved to unseal the case, and filed redacted versions of the key documents on the public docket.

The Archive’s challenge was the first case to assert the protections for libraries set forth the NSL reforms of 2006. While the government issues tens of thousands of NSLs each year, only three NSL recipients - to our knowledge - have ever challenged an NSL and this is the first public instance where a recipient of an NSL successfully pushed back and got the government to withdraw an unconstitutional demand issued under the revised statute.

Facts About the Archive

The Internet Archive has had over 500,000 registered patrons. It is not necessary to become a patron to view or download materials.

The Internet Archive first began archiving the web in 1996.

Some of the films available on the Internet Archive are The Battleship Potemkin, The Birth of a Nation and Night of the Living Dead.

Over 400,000 scanned public domain books are made available in an easily browsable and printable format.

The Internet Archive is digitizing around 1,000 public domain books each day.
Live Music Archive holds a collection of almost 50,000 concert recordings in lossless audio formats.

The Prelinger Archive has one of the largest collections of "ephemeral" (advertising, educational, industrial and amateur) films in the world.

The Internet Archive is a 501(c)(3) nonprofit organization. It receives in-kind and financial donations from a variety of sources, including, but not limited to: Alexa Internet, the Kahle/Austin Foundation, the Alfred P. Sloan Foundation, the William and Flora Hewlett Foundation, and individuals.

This page collects pleadings and other information from the multi-district litigation that apply to all of the cases or that are not otherwise included in the specific case pages for the multi-district litigation arising from the warrantless wiretapping.

This includes decisions that affect all of the cases together, case administration orders and related information, and information about the cases that are currently stayed or that have been dismissed

For information about specific cases or categories of cases that are still pending, follow the links below:

Background: The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive, illegal program to wiretap and data-mine Americans' communications. In May, 2006, many other cases were filed against a variety of telecommunications companies. Subsequently the Multi-District Litigation Panel of the federal courts transferred approximately 40 cases to the Northern District of California federal court.

Key Documents and Court Orders

• Motion to Dismiss Order
• Order granting in part and denying in part the motion to stay PDF
• Public Unredacted Klein Declaration
• Public Unredacted Marcus Declaration

Defending free speech and privacy, EFF has helped the ACLU and an unnamed Internet service provider (ISP) challenge the constitutionality of "National Security Letters" (NSLs), a key power under the USA PATRIOT Act.

Update On 6/18/07: Sixth Circuit issues opinion upholding district court's injunction against secret warrantless seizures of email

In Warshak v. USA, EFF is fighting to make sure that your email is as safe against government intrusion as your phone calls, postal mail, or the private papers you keep in your home.

• Ropp Ruling October 8, 2004

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman allegedly ordered two employees to configure the email processing software so that all incoming email sent from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. On August 11, 2005, the /en banc/ First Circuit Court of Appeals ruled that Councilman could be prosecuted under the Wiretap Act.

On April 21st, the Ninth Circuit held in United States v. Arnold that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely to use the opinion to argue that almost every property search at the border is constitutionally acceptable.

EFF filed an amicus brief in the case, arguing that laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Not only are laptops capable of storing vast amounts of information, the information tends to be of the most personal sort, including letters, finances, diaries, photos, and web surfing histories. Prior border search cases distinguished between "routine" suspicionless searches and invasive "non-routine" searches that require reasonable suspicion. Our amicus brief and the lower court opinion relied on these cases to say that the government must also have some cause to search laptops. The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.

The defendant has time to petition the Ninth Circuit to rehear the case en banc, and the Court might agree to do so. The panel included a District Court judge sitting by designation. Additionally, the opinion sets up Arnold's reliance on cases protecting highly private areas like the home from suspicionless searches as a straw man and then knocks the argument down by pointing out "the simple fact that one cannot live in a laptop". This strained and strange argument suggests that Arnold is not the last word on border searches of laptops. In the meantime, travelers carrying their corporation's trade secrets, personal emails, or health and financial information are at risk of arbitrary and capricious fishing expeditions at the border.

(aka Movies Studios v. TorrentSpy)

On June 22, 2007, 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.