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In this week’s Circuit Court column, I write about the legislative battle over changing our communications eavesdropping laws and a related issue of giving telcos immunity for illegally helping the government surveil us. This issue is so important, now that the nominee for Attorney General, Judge Michael Mukasey, says that the President does not have to obey the law if he believes it contradicts his national security responsibilities. Of course, you could argue that the laws are actually less important if the President isn’t even going to follow them. However, if that’s true, lawsuits against telcos may be the only way for the public to find out what our government is actually doing. Read more about one possible future of freedom and privacy here: What’s at Stake in the Surveillance Debate in Congress

Proposed Reporters’ Shield Law Overdue but Underpowered

This week’s Circuit Court column is about the proposed federal reporters’ shield law that just came out of the Senate Judiciary Committee. While we need a shield law, this one has a loophole for situations where the leak is criminal or tortious activity, and the loophole may just be too large for this version of a shield to do the trick.

I hope that First Amendment and reporters’ rights groups will be able to address this intelligently before consensus forms around final language for the bill. Its very easy to get caught up in the “you’re protecting criminals” rhetoric, particularly when a lot of business interests have formed a coalition to kill the bill entirely. However, the current version of the bill probably would not protect reporters even in the circumstances which have led Congress to propose this legislation in the first place. Read more here.

Did you know the government can track your movements by your cell phone? And while courts are struggling to define whether agents need probable cause to follow your prospective movements, a new decision out of the U.S. District Court in Massachusetts says they only need to show relevance to get a record of your past movements. Read more about this in my latest Wired News column Is That Big Brother In Your Pocket?

Last Tuesday, something fantastic happened. The U.S. 10th Circuit Court of Appeals gave the First Amendment some oomph in Golan v. Gonzales. The case, brought by Larry Lessig and lawyers with the Stanford Law School Center for Internet and Society, challenged section 514 of the Uruguay Round Agreements Act, or URAA, which removed thousands of books, films and musical compositions from the public domain. The 10th Circuit held that, following the Supreme Court case of Eldred v. Ashcroft, if Congress changes copyright’s “traditional contours,” courts must conduct a First Amendment review to ensure that those changes do not overly burden free expression in an unjustified manner. Removing works from the public domain is one such traditional contour, so the court sent the Golan case back to the District Court to determine whether the URAA goes too far in burdening speech.

I wrote about this case, which I was involved in when I was Executive Director of CIS, for this week’s Wired News column. You can read the full column here.

IPhones Most Revolutionary Feature: Unauthorized Hacks

Nations Soul Is at Stake in NSA Surveillance Case

Courts Turn Against Abusive Clickwrap Contracts

Wednesday’s Wired News column is about the state of the law wrt EULAs, terms of service agreements and other mass market contracting.  Two new cases suggest that courts are going to get more deeply into the business of protecting consumers from oppressive terms in these “take-it-or-leave-it” contracts.  In the column, I discuss the cases and argue this is the right approach.

Courts Should Shield Web and E-Mail Data From Nosy Cops

In today’s column I explain two new cases that take different approaches to constitutional privacy protections for digital communications depending on whether the courts understand the communications to be “content” or “transactional information”.  Which of these are protected from warrantless seizure by the government:  your email messages or a list of the websites you visit?  Read the column and find out.

Yesterday’s Wired News column, filed from our pied a terre in Amsterdam, discusses the clash between the right to privacy and the right to free speech, as represented in a lawsuit by the local royal family against a tabloid it seeks to stop from publishing photographs of the young princesses playing on the beach with their mother and nanny. You can read the whole article here.

In yesterday’s Circuit Court column “Free the Spam King” I take on the question of whether criminal prosecutions will stop spam, or are even fair. This one has engendered a lot of hate mail. It seems the only thing people hate more than child porn is spam.

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