Google Superbowl Ad Explains The Need for Search Privacy

Commentary by Kurt Opsahl

Google's ad during yesterday's Superbowl explained in less than a minute how the story of someone's life can be pieced together from their search queries. Using only the search terms and user's clicks of the search results, Google told the story of a user who seeks love while studying abroad in Paris, finds it, moves to Paris, marries and has a child.

Privacy info. This embed will serve content from youtube-nocookie.com.

The poignant story, along with Google's suite of search stories, masterfully illustrates how some of the most intimate information in our lives--from planning a trip to political activism--are routinely and vividly expressed in our interactions with Google, and highlights the need for that information to have strong protections.

The Superbowl ad was Google's first foray into national television advertising, and it's great that Google used this opportunity to illustrate the importance of search privacy to one of the world's largest audiences. Now that Google has shown how personal its records of user interaction are, it should follow through and protect that information from involuntary disclosure by anonymizing search queries. Microsoft's Bing is anonymizing this information after six months by deleting the entire Internet Protocol ("IP") address associated with your search queries. Google can and should anonymize search queries in the same way after six months or less.

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Know Before You Go: Tickets May Come at a Higher Price Than You Realize

Commentary by Corynne McSherry

As part of our Terms of (Ab)use project, we pay close attention to the fine print of online agreements for provisions that are potentially dangerous to consumers. We've noticed a troubling change in the way event planners restrict the rights of individuals who attend their shows. Where once these limitations had to fit on the back of a ticket, increasingly event organizers have moved their fine print online, where they are able to use even more contract law to avoid the limits of trademark and copyright law and actively control what ticket holders can say or do even after the event is over.

These burdensome terms can show up in some pretty unexpected places. Last year we noted how the Burning Man Organization (BMO) used online ticket terms to require participants to assign to BMO—in advance—the copyright to any pictures they took on the playa. Tickets for the 2010 event went on sale in mid-January, and we hoped the new terms would acknowledge the concerns we had expressed. Sadly, the new terms are just as onerous as before.

The "assignment in advance" clause is not the only burdensome provision. The BMO ticket terms limit participants' rights to use their own photos online, obliging them to take down any photos to which BMO objects for any reason and forbidding them from allowing anyone else to download or copy the photos. This means participants cannot donate their works to the public domain or to license their works, even through Creative Commons—no matter what is depicted or whether a use is noncommercial.

Even the notoriously protective Olympics allow spectators to take their own pictures or videos under their Ticket License Agreement, requiring only that the images "not be used for broadcast, publication, or any other commercial purpose." It is disappointing that the BMO cannot be at least as flexible.

Burning Man also continues to strip ticket holders of their right to make perfectly legal uses of its trademarks, forbidding participants from even using the (trademarked) term "Burning Man" on any website. In other words, participants who’d like to blog about their experiences at the event can’t use the words ”Burning Man.” Thus Burning Man uses contract law to do what it cannot under either copyright or trademark law—exert extraordinary control over participants' speech.

Why would BMO—the organizer of an “an annual experiment in temporary community dedicated to radical self-expression and radical self-reliance”—undermine speech and creativity like this? BMO claims that the terms in the Burning Man ticket agreement are necessary to protect Black Rock City’s unique culture and the privacy of its participants. Furthermore, BMO points out that the limitations are rarely enforced and they only claim copyright if the photos are used in a way BMO doesn't authorize. By claiming copyright in all photographs taken at the event, BMO can use the streamlined "notice and takedown" process enshrined in the Digital Millennium Copyright Act (DMCA) to quickly remove unapproved photos from the Internet.

But using online ticket terms for fast and easy takedown and to restrict CC-licensing and dedication to the public domain is a terrible precedent to set. As we pointed out in our post about this issue last year, doctors working with the tort reform group Medical Justice used contract law in the exact same way to censor negative reviews on Yelp and similar sites.

We understand the real challenges BMO faces in trying to preserve its noncommercial, community character. And we are aware that the current BMO enforces these terms only rarely. But a benevolent censor is still a censor—and BMO may not always be so benevolent. The bigger danger, though, is that other event organizers will take a page from the BMO/Medical Justice playbook, and assignment and abrogation of rights will become standard Terms of Ab(use) in all online contracts.

Copyright and trademark law were not intended to be used this way, and the collateral damage to speech and creativity inherent in the restrictions included in the Burning Man ticket agreement is too great. If the good folks at BMO continue to use ticket restrictions like this, Burning Man may very well become a new kind of model—not of temporary community and support for individual creative expression, but of permanent restriction on that very expression.

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Seven "Corporations of Interest" in Selling Surveillance Tools to China

Commentary by Danny O'Brien

Secretary of State Hillary Clinton's announcement of a new U.S. policy on global Internet Freedom included a bold new statement about the responsibilities of American technology companies:

...We are urging U.S. media companies to take a proactive role in challenging foreign governments' demands for censorship and surveillance. The private sector has a shared responsibility to help safeguard free expression. And when their business dealings threaten to undermine this freedom, they need to consider what’s right, not simply what’s a quick profit.

We couldn't agree more.

While Clinton focuses on media companies — meaning Internet media companies like Google, Yahoo! and Microsoft — there are plenty of other companies deserving scrutiny. Specfically, many U.S. (and multinational) technology companies may be knowingly selling Chinese authorities the surveillance equipment used to commit or facilitate human rights abuses. We think it's high time to pay attention to them as well.

The "Corporations of Interest"

Drawing from published news articles, EFF has compiled a list of seven corporations that are reportedly selling surveillance technology to the Chinese government and related entities. We're designating them "corporations of interest".

Of course, news articles alone are not absolute evidence that these companies are indeed fostering repression in China. But it's clear that China uses technology to employ rampant censorship, invasive data collection and intimidation. Learning exactly what is going on, especially in the Chinese environment of state secrecy and propaganda, is difficult. But news reports, especially those that include admissions of some level of involvement from company officials, are a sufficient basis to begin asking further questions.

1. Cisco: Cisco's deep involvement in the building of China's Golden Shield Project has been admitted by the company. Cisco's involvement has even already been raised before Congress, including the fact that Cisco engineers gave a presentation acknowledging the repressive uses for their technology that quoted their Chinese government buyers as saying that Cisco's products could be used to "combat 'Falun Gong' evil religion and other hostiles." The UK's Guardian reports that Cisco provides over 60% of all routers, switches, and network gear to China and estimates that Cisco makes $500 million annually from China.


2. Nortel: Rolling Stone and The Guardian report that Nortel has sold hardware to aid the Golden Shield Project for surveillance and censorship purposes, including working with Tsinghua University to develop speech recognition software to monitor telephone conversations.


3. Oracle: Business Week reports that Oracle has sold software to the Chinese Ministry of Public Security for criminal and ideological investigations. Oracle admits that one-third of its business in China is with the government.


4. Motorola: Business Week also reports that Motorola sold the Chinese authorities handheld devices for street cops to tap into "sophisticated data repositories" on Chinese citizens.


5. EMC: Business Week also reports that EMC sold "sophisticated data repositories" to the Chinese public security authorities. The top EMC executive in Beijing is quoted as saying, "We can expect big revenue from public security agencies" in China.


6. Sybase: Business Week also reports that Sybase sells database programs to the Shanghai police.


7. L-1 Identity Solutions: Rolling Stone reports that this Connecticut-based biometrics company sold software to Chinese companies that aids government officials in identifying individuals for purposes of criminal investigations.

The question of which companies have assisted in Chinese surveillance is just a small piece of a very large puzzle and we're quite confident that there are more than just these seven. And obviously many countries other than China are engaged in Internet surveillance — from Iran's infamous repression of political dissent, to censorship efforts across the globe, to the USA's own domestic surveillance architecture. Corporate complicity in these efforts is equally deserving of scrutiny.

It's also worth keeping in mind that surveillance is only part of the equation. Other technologies created or sold by companies may also be misused by the Chinese authorities. For instance, Internet censorship systems curtail civil liberties almost as severely as Internet surveillance systems. Research by the OpenNet Initiative has shown that censorship systems in many repressive countries have been outsourced to U.S. corporations.

The Solution

What comes next? Again, there's simply not enough publicly available information to be absolutely certain about the extent of any one company's active involvement or complicity.

So, a good first step would be for the companies in question to clear the air and come clean with the public about their behavior. There are six steps we'd like to see them take:

1. Clarify their actual relationships with the Chinese authorities engaged in surveillance and censorship of the Chinese people.


2. Publicly disclose what sorts of products and services they are selling to the Chinese government.


3. Publicly disclose whether they have been doing "customization" or otherwise facilitating targeting of human rights activists or other vulnerable groups in China.


4. Publicly disclose whether they have learned that their products and services are being used for repression.


5. Publicly disclose how much money they make selling products and services to the Chinese government.


6. Publicly disclose the steps they can take to prevent their products and services being used to violate human rights.

EFF (and presumably the State Department) will be watching closely to see whether these and other corporations selling surveillance technologies to the Chinese authorities take these steps.

And if they don't? Then it may be time for Secretary Clinton, or her allies in Congress and the Administration, to pressure them to do so.

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Blogging ACTA Across The Globe: Lessons From Korea

Commentary by Danny O'Brien

If there's one country that might have insight into what a post-ACTA future may look like, it's the Republic of Korea. Korea is known as having one of the most advanced networks in the world, but more recently it has also been the recipient of some of the strongest foreign pressure to ramp up its IP laws. Heesob Nam is a member (and former Chair) of IPLeft, a Korean digital rights activist group founded in 1999 to critique the increasingly maximalist IP rights agenda in that country, and research and present alternative policy proposals. He writes of the impact on Korea of ACTA and other international IP agreements.

For Korea, ACTA is the Anti-Commons Trade Agreement

In August 2008, our group, IPLeft, demanded that the Korean government disclose relevant information about its stance on the negotiation of ACTA. The disclosure was denied, as was our appeal. The reason for the denial was unconvincing: the disclosure, we were told, would result in "a harmful effect on a diplomatic relationship with foreign countries and severe damage to considerable national interests".

How does the participation in an international cooperation to combat the trade of "counterfeit and pirated goods" harmfully impact foreign relationships? Which national interests are to be damaged by open and transparent discussion? Unlike its attitude to civic society and the general public, it turned out that the Korean government already provided relevant information to, and sought opinions from, particular business groups from the earliest stages of the negotiation, at least from November 2007.

When it comes to ACTA, transparency and openness became principles that apply only to a small number of business interests. This is why the secrecy of ACTA is so bad: it mirrors a particular perspective that views the system of intellectual property as a means for maximizing commercial profit and which pays little attention to the broader social, cultural and economic implications of the IP system.

This imbalanced and biased approach is infused into the draft texts that we have seen. The draft chapters on civil enforcement, criminal enforcement, and border measures lack procedural justice and fairness. They improperly promote the interests of IP holders to the detriment of the other party in civil, criminal and administrative proceedings.

The provisions contained in the proposed Internet Chapter appear to impose undue obligations on ISPs. The extent to which ISPs are to be liable for copyright infringement by users is a matter of domestic cultural policy, not a trade issue. Careful balancing of interests and fine-tuning are necessary, including factors specific to local culture and environment which cannot be concluded in a closed room occupied by trade negotiators.

More significantly, the liability of ISPs is of great importance not merely for the protection of copyright: it is important for the protection and realization of everyone’s right to take part in cultural life as declared in legally binding international human rights instruments. One of our concerns about ACTA is the risk of undercutting the principle of the rule of law and the possible conflict with human rights, in particular with the right to a fair trial, the right to equality before courts and tribunals, the right to equality of arms, and the right to be presumed innocent. ACTA tries to introduce substantial changes in civil and criminal procedures. But the proposed changes give rise to issues of procedural justice and fairness, jeopardizing Korea’s obligations under the international human rights instruments, e.g., the International Covenant on Civil and Political Rights, and potentially weakening the democratic values recognized in our Constitution.

For instance, pursuant to the US-Japan joint proposal, any provisional measures such as a preliminary injunction may be rendered by judicial authorities without a prior hearing of the alleged infringer. Here, neither "irreparable harm to the right holder" nor "a demonstrable risk of evidence being destroyed" is explicitly required. Even the Customs office may take an ex-officio action to suspend the release of suspected copyright or trademark infringing goods. Moreover, right holders may be awarded a predetermined amount of damages without having a burden to show the amount of damage or even when the amount is greater than actual damage. An even more severe breach of principles of procedural justice is found in a so-called "camcorder provision" under which anyone who attempts to use an audiovisual recording device to make a copy of any part of an audiovisual work in a theater may be criminally punished. This out-of-proportion rule not only produces a direct conflict with the right to be presumed innocent but also undermines the principle of fair use or fair dealing.

National autonomy is vital in order to decide the proper level of local IP protection and enforcement. Korean IP law has undergone substantial revision due to the threat of trade sanctions from both the US and the EU since the early 1980s. This economic coercion has continued for about thirty years, and has led to an emergence of consistent domestic pressure for stronger IP protection.

Interestingly, the strongest advocates for these reforms in Korea are not the IP industries: they are the executive branches in government which claim competance over the administration of patent, trademark, and copyright. To them, stronger IP protection and enforcement is a chance to enhance their position. The unending economic pressure and the heavy reliance of our domestic economy upon exports have produced this environment. The problem is that these state actors are much more influential than other, emerging local businesses, because they possess institutional capacities and resources to promote a maximalist IP regulatory culture.

With this power, these government agencies have introduced new laws in Korea which may well be used to support controversial provisions currently being discussed in Guadalajara, Mexico. Examples include a filtering obligation imposed on certain online service providers, and a "graduated response" rule under which the Minister of Culture can suspend or terminate the Internet account of a repeat infringer or even shut down a website that the repeat infringer is using. Advocates claim that the shutting-down provision is incorporated in the US-Korea Free Trade Agreement (and Side Letters) (currently awaiting ratification), and may possibly be pushed by the US in modified form during the ACTA negotiations. If ACTA is concluded with an inspiration of such provisions and applied to Korea under the name of international harmony, our effort to reform the copyright system would be undermined, and opportunities for democratic policy discussion at local level would be lost.

Contrary to the beliefs of ACTA negotiators, stronger, criminal enforcement rules can create unintended consequences among the general public. In Korea, following the introduction of these new laws, reports of criminal copyright infringement skyrocketed from 14,838 to 90,979 between 2005 and 2008. Among these, juveniles victims occupied 24% in 2008, an increase from 1.9% in 2005.

This reported increase, however, does not represent a rapid rise of the unauthorized use of copyrighted material by juveniles. Rather, it shows how criminal sanctions can be misused. Under the Korean Copyright Act, any unauthorized acts of reproduction or distribution of copyrighted works can invoke a criminal liability. This wide coverage of criminal sanction paves the way to abuse or misuse of criminal enforcement. ACTA is no different in this sense. In order to be "willful copyright piracy" under ACTA, an infringing activity needs to be "on a commercial scale". But commercial scale is defined so broadly that it covers activities with "no direct or indirect motivation of financial gain". With this broad definition, the infringement on a commercial scale may include almost every unauthorized use of copyrighted work. So, for instance, those who download a single piece of music may risk criminal penalties. In other words, ACTA opens the door to the global misuse of criminal enforcement rules, beyond even what we've seen in Korea.

Here, criminal sanctions have become a sort of new business model for lawyers acting for copyright holders (mainly music and film industries). They monitor Internet users and send warning letters to suspected individuals threatening a criminal action. In exchange for not taking the criminal action, they ask for a cash settlement. Criminal enforcement procedures provide copyright holders with leverage; using the threat of criminal action as leverage for the settlement negotiation as the initiation of criminal procedure is triggered by a complaint by the right holder. Among the 90,979 complaints in 2008, 56% were settled out of court.

ACTA risks exporting Korea's criminal enforcement regime, while importing the worst of other countries' IP laws. But that's not the only reason to oppose it. A trade agreement that breaches procedural justice, fairness, transparency, and proportionality is not Anti-Counterfeiting: it's Anti-Commons.

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Blogging ACTA Across The Globe: The View from France

Commentary by Danny O'Brien

Today is day three of the seventh round of ACTA negotiations, currently taking place in Guadalajara, Mexico.

La Quadrature Du Net is a French advocacy group formed to promote digital rights and online freedom. Its name comes by analogy between the unsolvable mathematical problem of "squaring the circle", and similarly impossible attempts to "effectively control the flow of information in the digital age by the law and the technology without harming public freedoms, and damaging economic and social development". In our ongoing series of perspectives on ACTA from around the globe, today Jérémie Zimmermann and Félix Tréguer of La Quadrature du Net describe how the trade agreement undermines democratic challenges to IP policies in France and beyond.

ACTA: An agreement between lobbyists who hate democracy

For the past fifteen years, with the advent of the networked society, we have seen a growing confrontation between rightsholders, whose business-models rely on the control of culture, and ordinary citizens. Recently, a new battle has emerged, as a growing number of policy-making arenas consider implementing "three-strikes" schemes and Net filtering practices to deter filesharing.

In these important debates, citizens and public-interest groups have scored a few successes, convincing lawmakers that such proposals are at their core irreconciliable with fundamental rights and freedoms. Our own victories include amendment 138 in the Telecoms Package by the European Parliament &mdash which provided that no restriction on users' access to the Internet could be imposed without a judicial decision —, and the groundbreaking first decision of the French Constitutional Council on HADOPI, stating that the French Declaration of the Rights of Man implied the "freedom to access [public online communication] services". 1.

However, in the face of such opposition in traditional democratic forums, rightstholder lobbyists 2 have pushed for a global agreement that would establish extremist IP enforcement standards to all signatory countries.

As a result of this effort, ACTA is being negotiated outside of the traditional and relatively transparent IPR policy-making arenas, such as the WTO or WIPO. As made clear by a leaked summary of the draft Internet chapter of ACTA written by the Commission, this multilateral agreement could impose three-strikes schemes and Internet filtering practices:

To benefit from safe-harbours, ISPs need to put in place policies to deter unauthorised storage and transmission of IP infringing content (ex: clauses in customers' contracts allowing, inter alia, a graduated response).