SUMMARY OF EFF DISCUSSION WITH SF-IMC\r\nOctober 24, 2001, San Francisco, California\r\n<\/p>
\r\nLee Tien, Will Doherty, and Seth Schoen from the Electronic Frontier\r\nFoundation attended a San Francisco Indymedia general meeting on\r\nWednesday, October 24th for an informal chat about Internet spying,\r\nsecret government activities, and freedom of speech. These are my\r\nnotes from that meeting. They are kind of scattered, and represent\r\nonly what I got out of the conversation. I am not a lawyer, and the\r\nEFF folks spoke only about hypothetical situations. None of this is\r\nlegal advice; if you need that, contact an attorney. This is also\r\ncentered around US law only. Thanks to EFF for allowing this\r\ninformation to flow freely. - gekked@blackflag.net\r\n<\/p>
\r\nLee Tien began by describing his relationship with IMC. Lee first\r\nheard about Indymedia in April 2001, when FBI and Secret Service\r\nagents visited the Seattle IMC during the anti-FTAA riots in Quebec\r\nCity. The FBI ordered Indymedia to turn over millions of IP addresses\r\nfrom people using the website during the protests. EFF and other\r\nprivacy activist organizations offered pro-bono legal aid to\r\nIndymedia. Eventually, the FBI withdrew their order.\r\n<\/p>
\r\nSince then, a relationship between Indymedia and EFF has developed\r\nbecause of Indymedia's unique use of online tools for collaborative\r\nand open publishing around the world. And, participants in Indymedia\r\nare thrilled to have the opportunity to work with a legendary internet\r\nrights group.\r\n<\/p>
\r\nThe discussion went on with a legal overview of surveillance statutes.\r\nLee described some of the \"statute regimes\" that exist: Title III\r\n(from the 1968 Wiretap Act), pen trap orders (from the 1986 Electronic\r\nCommunications Privacy Act), and the 1978 Foreign Intelligence\r\nSurveillance Act (FISA).\r\n<\/p>
\r\nThe requirements and reach of wiretap\/surveillance orders vary with\r\neach statute:\r\n<\/p>
\r\nTitle III orders require probable cause and they permit surveillance\r\nof content (like listening to a telephone conversation). The\r\ngovernment must eventually inform you that they have obtained a Title\r\nIII wiretap.\r\n<\/p>
\r\nPen trap orders do not require probable cause, but are limited to\r\ndialing, routing, and signaling information (like a list of phone\r\nnumbers that a person has called or received, but not the content of\r\nthe conversations). The government does not ever have to disclose that\r\nthey obtained a pen trap order against someone.\r\n<\/p>
\r\nFISA orders require probable cause, but not within the context of\r\nFourth Amendment protections. FISA orders must only show probable\r\ncause that a foreign agent or foreign power is at work. FISA orders\r\nare obtained in a secret court.\r\n<\/p>
\r\nApplying laws written for telephone wiretapping to the internet has\r\nintroduced legal grey areas. For instance, pen trap orders are easier\r\nto get but they are not supposed to include any content, just routing\r\ninformation. But while an email header or website url could be\r\nconsidered routing information, they also contain content (for\r\ninstance, the email subject). Knowing every website that a person goes\r\nto is certainly more than routing information. These issues are still\r\nlegally unresolved.\r\n<\/p>
\r\nIn addition, if Carnivore and other Internet spying orders are\r\nobtained with a pen trap order, you will never know if you are being\r\nsurveiled (as you would under Title III). Additional concerns surround\r\nthe lack of auditing and oversight for Internet spying orders.\r\n<\/p>
\r\nFurthermore, as Congress passes legislation allowing increased sharing\r\nof information between law enforcement agencies, the legal boundaries\r\nset by these statute divisions are blurring.\r\n<\/p>
\r\nAll of these legal protections are further diminished by the success\r\nrate of law enforcement in obtaining these orders. Between 1968 and\r\n1996, over 20,000 Title III orders were approved, and only 28 were\r\ndenied.\r\nhttp:\/\/www.epic.org\/privacy\/wiretap\/stats\/taps_denied.html\r\n<\/p>
\r\nThe discussion moved to the USA Act, PATRIOT Act and other\r\nanti-terrorism bills currently being passed in the U.S. Congress. Lee\r\nTien described the frustration of civil liberties advocates since\r\nSeptember 11th. Around October 16th or 17th, the legislation\r\nnegotiations were whisked off the floor and moved to behind closed\r\ndoors. The civil rights community has not seen drafts since then. The\r\nUSA PATRIOT Act (HR3162) passed the House on October 24 and the Senate\r\non October 25 and was signed into law by President Bush.\r\nhttp:\/\/thomas.loc.gov\/cgi-bin\/bdquery\/z?d107:h.r.03162:\r\n<\/p>
\r\nA question was asked about this legislation's impact on encryption.\r\nSen. Judd Gregg (New Hampshire-R) had called for government backdoors\r\nin encryption two days after September 11th, but quickly gave up. No\r\nfurther language regarding encryption technology has been added to the\r\nanti-terrorism legislation being considered by Congress.\r\nhttp:\/\/www.wired.com\/news\/conflict\/0,2100,47635,00.html\r\n<\/p>
\r\nA question was asked about liability regarding IMC's open publishing\r\nmodel. It is very clear from a legal perspective that ISPs and\r\nwebsites have no communicative tort liability (defamation, slander,\r\netc.) for content posted by Internet users. However, ISPs and websites\r\ndo have a responsibility to remove copyrighted material, illegally\r\nobscene, child pornographic, or possibly harmful to minors material,\r\nor threatening criminal material. \r\n<\/p>
\r\nFor copyrighted materials, there is a \"safe harbor\" provision in the\r\nDigital Millenium Copyright Act. This means that there is a notice and\r\ntakedown procedure for copyrighted materials. To ensure compliance\r\nwith DMCA, websites should provide a contact email address where DMCA\r\nviolation notices can be sent. The \"safe harbor\" provisions of DMCA\r\napply only if the ISP removes the copyrighted materials in response to\r\na complaint and replaces them in response to a counter-complaint. The\r\n\"safe harbor\" provisions do not apply to materials posted by ISP\r\nemployees, or likely even in this case IMC volunteers.\r\n<\/p>
\r\nA question was asked about general inquiries from law enforcement\r\nabout criminal activities. In particular, the question was referred to\r\na specific incident regarding Flagstaff police contacting Indymedia\r\nabout a vandalism investigation. A general answer was given, which is\r\nthat no email communications should be ignored. The response can be as\r\nsimple as \"talk to my lawyer,\" but no request should be ignored.\r\nhttp:\/\/arizona.indymedia.org\/front.php3?article_id=1613\r\n<\/p>
\r\nA question was asked about an ISP's legal responsibility to keep\r\nserver logs. Currently, there is no requirement for any ISP in the\r\nUnited States to maintain server activity logs. Lee suggested that\r\nthis could be changing soon, and that the UK and Dutch governments\r\nwere leading the charge towards this requirement.\r\n<\/p>
\r\nA question was asked about rumors that Internet users have been\r\nexperiencing slowdowns, and that they call their ISP, who tell them\r\nthat a \"government-installed box is slowing down our network.\" It was\r\ndecided by the techs in the room that Carnivore could not really\r\ncreate a network slow-down, that it is just dumping data. However,\r\nhypothetically, Internet surveillance devices could impact an end\r\nuser's network performance.\r\n<\/p>\n","contact":"","link":"","address":"","phone":"","parent_id":0,"mime_type":"text\/html","summary":"Notes from a meeting between the Electronic Frontier Foundation and Indymedia. Lots of good information about your civil rights online.","numcomment":0,"fileurl":"\/uploads\/2001\/11\/summary_of.html","filesize":"7.1 kibibytes","article_url":"\/news\/2001\/11\/12675.php"},"attachments":[],"comments":[]}