Microsoft action takes down Cryptome

R.A. Hettinga rah at
Thu Feb 25 13:01:22 PST 2010



Politics and Law
February 25, 2010 9:57 AM PST
Microsoft action takes down Cryptome Web site
by Lance Whitney

The Web site Cryptome, which publishes sensitive corporate and government
files, has been taken down by its provider after Microsoft complained of
copyright infringement over the publication of one of its documents.

Cryptome often posts documents detailing the surveillance activities that
companies and government agencies perform on behalf of law enforcement
officials. These documents, which Cryptome refers to as "lawful spying
guides," explain what information companies reveal about its customers when
requested by legal authorities. Many of these documents are specifically
written for law enforcement officials to guide them on obtaining customer
information from a company--what to ask for, how to ask for it, and how to
analyze it.

After one such document, Microsoft's Surveillance Guide, appeared on the
Cryptome Web site, Microsoft asked the site's owner, John Young, to take it
down, alleging copyright infringement. After Young refused, the site's host,
Network Solutions, sent him a notice citing the Digital Millennium Copyright
Act (DMCA) and telling him to get rid of the copyrighted material, or his site
would be removed. Young still refused, and so Cryptome was taken offline

After the take-down, an alternate site was quickly set up under the name, and most of the documents from the old site have
since been re-posted. Young has also included mirrors to other Web sites where
people can still read Microsoft's Surveillance Guide. A notice on the new site
says that "Network Solutions shut and has placed a 'legal lock'
on the domain name, preventing its transfer, until the 'dispute' is settled."
So Young can't use the Cryptome domain name.

In his initial response to the actions of Microsoft and Network Solutions,
Young filed a counter-notification on Wednesday, backing up his belief that
publication of Microsoft's file does not infringe upon any copyright.

"The file has not been removed because Microsoft has improperly claimed
copyright violation for the file, which provides information that allows users
of Microsoft products to protect their privacy and personal data security
against abust of trust by Microsoft," wrote Young in his letter.

At this point, the ball is in Microsoft's court. Under the terms of the DMCA,
Network Solutions has to reinstate the Cryptome site in another 10 to 14 days
unless Microsoft responds with a notice of litigation. In short, if Microsoft
wants to pursue this, it has to take Young to court.

The threat of a court case might worry most people, but Young seems to welcome
it. "We're now waiting to go to court with Microsoft," he told CNET. "We hope
they'll do it rather than backing off. We think this is an important issue
that needs to be litigated."

Young said he wants to challenge the abuse of copyright claims by Microsoft
and other companies, which he believes are being used in an improper way.
Copyright infringement is meant to protect intellectual property, noted Young,
but he feels the documents he publishes on his site don't fall under that

Further, since these documents concern the public and they're available to law
enforcement, Young believes they should be publicly available, either through
the Freedom of Information Act or by other means. Companies and law
enforcement officials would naturally argue that these documents should remain
private so they're not available to criminals. But Young feels the majority of
customers and other people affected by these documents are not criminals.

Young also pointed out that most companies do publish law enforcement files
and similar documents for the public to see. It's only a few companies that
keep them private. Yahoo is another firm that filed a complaint against Young
for posting an internal document. But he said he stood firm against the

"Yahoo tried to bluff us into taking a document down claiming copyright when
they didn't have one," Young said. "There are other firms abusing this because
it's very cheap to just send out an e-mail to an ISP for a take-down rather
than go to litigation."

Young also believes that the response from Network Solutions to take down the
file or get shut down is solely the provider's doing. "Network Solutions has
set up a draconian response, which is to try to scare you into taking a
document down as though it's required by the DMCA. But it turns out there's a
lot of latitude in the DMCA. So [Network Solutions] is abusing it as well as

Young said he believes the documents that he publishes are indications that
companies are bending over backwards to placate law enforcement officials
because they're afraid of being targeted by them. And he feels that
Microsoft's Surveillance Guide goes much further in holding the hands of law
enforcement than the typical document.

How does Young draw the line between publishing a document that's truly
sensitive and private versus a document that the public may have a right to
view? "That's all we do, is walk that line," he said. "We can spot it pretty
well. We've been following the DMCA since the time it was proposed and the
time of its passage. And we've seen the increasing abuse of it."

Young said that most of the documents he posts are sent to him from people who
have gotten access to them. But many are already available on the Web. The
Microsoft document came from a Web site that specialized in training law

Despite Young's desire to go to court to prove his point, the latest word from
Microsoft is that the company may be backing down. A Microsoft spokesperson
sent CNET the following comment:
"Like all service providers, Microsoft must respond to lawful requests from
law enforcement agencies to provide information related to criminal
investigations. We take our responsibility to protect our customers privacy
very seriously, so have specific guidelines that we use when responding to law
enforcement requests. In this case, we did not ask that this site be taken
down, only that Microsoft copyrighted content be removed. We are requesting to
have the site restored and are no longer seeking the document's removal."

When informed of Microsoft's response, Young seemed disappointed at the
prospect of not going to court. In an e-mail response, he said: "My position,
upright, of course, we want Microsoft to take the lead on opening up all
lawful spying guides and that is likely to require court action so Microsoft,
Net Solutions, Google and the others can say they are doing so under duress of
the court and public opinion--that way law enforcement cannot accuse them of
violating confidential agreements too easily."

He further said that DMCA needs to be modified to avoid including
non-criminals in broad copyright dragnets aimed at actual criminals.

"And the draconian procedures worked out among ISPs and copyright holders need
to be relaxed or subject to challenge," he added. "These procedures appear to
be private, to save costs, and to speed results by bluffing, and are not
required by the DMCA."

Lance Whitney wears a few different technology hats--journalist, Web
developer, and software trainer. He's a contributing editor for Microsoft
TechNet Magazine and writes for other computer publications and Web sites. You
can follow Lance on Twitter at @lancewhit. Lance is a member of the CNET Blog
Network, and he is not an employee of CNET.

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