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EFF Press Release Archives

Press Releases: March 2014

March 18, 2014

Government Claims EFF's Lawsuits Don't Cover Ongoing Surveillance – Raising Fears Key Documents May Have Been Destroyed

UPDATE: Judge White today continued his temporary restraining order in these two cases until a more permanent order could be put in place. The question of whether the government improperly destroyed evidence so far will be briefed over the next several weeks.

San Francisco - The Electronic Frontier Foundation (EFF) will fight disturbing new government claims in an emergency court hearing Wednesday – claims that may imply records documenting ongoing government surveillance have been destroyed despite a judge's order.

Over the last several weeks, EFF has been battling to ensure that evidence of the NSA surveillance program will be preserved as part of its two cases challenging the illegal government spying: Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA. But in a court filing late Monday, the government made shocking new assertions, arguing that its obligation to preserve evidence was limited to aspects of the original Bush-era spying program, which the government contends ended eight years ago with a transition to FISA court orders.

"This argument simply does not make sense. EFF has been demanding an injunction to stop this illegal spying program, regardless of the government's shifting justifications," said EFF Legal Director Cindy Cohn, who will argue in front of U.S. District Court Judge Jeffrey S. White at the hearing Wednesday. "But these government claims aren't just nonsensical – they are extremely worrisome and dangerous. The government is suggesting it may have destroyed years' worth of evidence about its illegal spying, justified by its own secret interpretation of our case. This is about more than just phone records; it's about evidence concerning all of the government's spying. EFF is asking the court for a full accounting of just what is going on here, and it's time for the government to come clean."

EFF has been litigating against illegal NSA surveillance for more than eight years. Jewel v. NSA is a case brought on behalf of AT&T customers who were subject to unconstitutional NSA spying. In First Unitarian Church of Los Angeles v. NSA, EFF represents 22 groups whose First Amendment rights to association are violated by the NSA program.

WHAT:
Oral Argument in Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA

WHO:
EFF Legal Director Cindy Cohn

WHERE:
Courtroom of District Judge Jeffrey S. White
San Francisco Courthouse
Courtroom 11, 19th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

WHEN:
Wednesday, March 19th
2 p.m. PDT

For the full government brief on evidence preservation:
https://www.eff.org/document/government-defendants-response-evidence-preservation-brief

For EFF's response:
https://www.eff.org/document/plaintiffs-reply-brief-re-preservation-evidence

High resolution image: (from left to right) Co-counsel Aram Antaramian, EFF Senior Staff Attorney David Greene, EFF Staff Attorney Nate Cardozo, EFF Legal Director Cindy Cohn, EFF Senior Staff Attorney Kurt Opsahl, Co-counsel Richard Wiebe, EFF Legal Fellow Andrew Crocker.

Contacts:

Rebecca Jeschke or Dave Maass
   Media Relations
   Electronic Frontier Foundation
   press@eff.org

March 18, 2014

Two Hearings This Week: Appeal of Andrew “weev” Auernheimer CFAA Conviction in Philadelphia; License Plate Reader Records Case in Los Angeles

UPDATE: The Los Angeles hearing has been postponed until April.

Courts in Los Angeles and Philadelphia will hear arguments about coder's rights and the collection of license plate data in noteworthy Electronic Frontier Foundation (EFF) cases this week.

Andrew "weev" Auernheimer Case CFAA Case:

On Wednesday, George Washington University law professor Orin Kerr will argue on behalf of computer security researcher Andrew "weev" Auernheimer, who was prosecuted under the Computer Fraud and Abuse Act after he revealed a massive security flaw in AT&T's website. EFF is part of Auernheimer's appeals team, and Staff Attorney Hanni Fakhoury will be in attendance and available for interviews.

WHAT: Oral Argument in U.S. v. Andrew Auernheimer

WHERE: Third Circuit Court of Appeals
Albert Branson Maris Courtroom
601 Market Street, 19th Floor Philadelphia, PA 19106

WHEN: Wednesday, March 18 10 a.m. EDT

For background on Auernheimer's appeal: https://www.eff.org/cases/us-v-auernheimer

Lawsuit Over License Plate Reader Records:

UPDATE: This hearing has been postponed until April.

On Friday, EFF Senior Staff Attorney Jennifer Lynch and ACLU of Southern California Senior Staff Attorney Peter Bibring will argue for the release of Los Angeles automatic license plate reader records in this California Public Records Act lawsuit.

WHAT: Oral Argument in EFF and ACLU of Southern California v. Los Angeles Police Department and Los Angeles Sheriff's Department

WHERE: Los Angeles County Superior Court
Judge James Chalfant, Department 85
Stanley Mosk Courthouse
111 North Hill St. Los Angeles, CA 90012

WHEN: Friday, March 21, 9:30 a.m. PDT

For background on EFF's case: https://www.eff.org/foia/automated-license-plate-readers

Contacts:

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

Jennifer Lynch
   Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

March 13, 2014

EFF Represents Computer Scientists in Explaining Why “It Is Not Just Metadata”

San Francisco - Representing a large group of top computer science experts and professors, the Electronic Frontier Foundation (EFF) today submitted a brief to a federal appeals court supporting the American Civil Liberties Union's lawsuit over the NSA's mass call records collection program. At the core of the brief is the argument that metadata matters.

Intelligence officials have often downplayed privacy concerns over the NSA's interpretation of Section 215 of the Patriot Act by stating that the agency does not collect the "content" of calls, but only the metadata—who a person called, when, how long the conversation lasted and other information. EFF's brief begins with the line "It is not just metadata," and goes on to explain how metadata collected on a massive scale can often reveal more personal information about an individual than content. The brief outlines how metadata can show patterns of behavior, political and religious affiliations, and other personal details, especially when combined with other data sources.

"The metadata the government collects isn't just a list of numbers dialed and times—it's a window into the lives of millions of Americans," EFF Staff Attorney Mark Rumold said. "The law should provide the highest level of protection for this kind of information. The technology experts who signed the brief provide a valuable perspective for the court to consider."

The ACLU filed its lawsuit against the Director of National Intelligence, NSA, Department of Defense, Department of Justice and FBI last year after former intelligence contractor Edward Snowden revealed a secret legal order allowing for the indiscriminate capture of call metadata from Verizon Business Services.

EFF represents 17 professors who signed onto the brief, including: Profs. Harold Abelson and Ron Rivest of the Department of Electrical Engineering and Computer Science at the Massachusetts Institute of Technology; Prof. Andrew Appel, chair of Princeton University's computer science department; Prof. Steven Bellovin of Columbia University's computer science department; and Matthew Blaze, an associate professor in the University of Pennsylvania's Computer and Information Science Department. Other experts signed on to the brief come from Johns Hopkins University, the University of Michigan, Rice University and Purdue.

"Metadata equals surveillance," said security expert and EFF board member Bruce Schneier, another signer of the brief. "It's who we talk to, what we read, and where we go. When the president says 'don't worry, it's only metadata,' what he's really saying is that you're all under surveillance."

While EFF is acting as amicus in this case, it also has two ongoing lawsuits of its own that challenge NSA surveillance. In First Unitarian v. NSA, EFF represents 22 groups whose First Amendment rights to association are violated by the NSA program. Jewel v. NSA is a case on behalf of AT&T customers who were subject to the unconstitutional NSA spying.

For the text of the amicus brief:

https://www.eff.org/document/computer-scientists-amicus-aclu-v-clapper

Contacts:

Mark Rumold
   Staff Attorney
   Electronic Frontier Foundation
   mark@eff.org

March 11, 2014

Changing Technology Demands New Rules for Police

San Francisco - The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court Monday to set limits on warrantless searches of cell phones, arguing in two cases before the court that changing technology demands new guidelines for when the data on someone's phone can be accessed and reviewed by investigators.

The amicus briefs were filed in Riley v. California and U.S. v. Wurie. In both cases, after arresting a suspect, law enforcement officers searched the arrestee's cell phone without obtaining a warrant from a judge. Historically, police have been allowed some searches "incident to arrest" in order to protect officers' safety and to preserve evidence. However, in the briefs filed Monday, EFF argues that once a cell phone has been seized, the police should be required to get a search warrant to look through the data on the phone.

"Allowing investigators to search a phone at this point – after the device has been secured by law enforcement but before going to a judge and showing probable cause – is leaving 21st Century technology outside the protections of the Fourth Amendment," said EFF Staff Attorney Hanni Fakhoury. "If we're going to truly have privacy in the digital age, we need clear, common-sense guidelines for searches of digital devices, with meaningful court oversight of when and how these searches can be conducted."

In the not-so-distant past, our pockets and purses carried only limited information about our lives. But in the age of the smartphone, we are walking around with a complete, detailed history of our work schedules, our medical concerns, our political beliefs, and our financial situations. Our phones include pictures of family gatherings, videos of friends, apps that help manage our health and our money, and email and text messages from both our personal and professional lives.

"Our phones include an extraordinary amount of sensitive information – our past, our present, our plans for the future," said Fakhoury. "We can't let investigators rummage through this data on a whim. It's time for the Supreme Court to recognize the important role that judicial oversight must play in searches of cell phones incident to arrest."

Today's brief was filed in conjunction with the Center for Democracy and Technology. The brief was authored with the assistance of Andrew Pincus of Mayer Brown LLP and the Yale Law School Supreme Court Clinic.

For the full brief filed in Riley and Wurie:
https://www.eff.org/document/amicus-brief-supreme-court

For more on search incident to arrest:
https://www.eff.org/issues/search-incident-arrest

Contact:

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

March 10, 2014

EFF Quashes Patent Troll’s Subpoena for Donor Records, Collects 5,000 Signatures in Support of Patent Reform

San Francisco - Electronic Frontier Foundation (EFF) Staff Attorney Daniel Nazer has become the new "Mark Cuban Chair to Eliminate Stupid Patents." Nazer succeeds former Senior Staff Attorney Julie Samuels and will lead EFF's campaign to reform the patent system and smash patent trolls. Samuels has left EFF to become the new executive director of Engine Advocacy, one of EFF's key partners in defending innovation in the start-up sector.

Entrepreneur and Dallas Mavericks owner Mark Cuban funded the title and Nazer's position with a $250,000 donation in 2012. Together, Nazer and Samuels, along with the other members of EFF's Intellectual Property team, have worked tirelessly to reform the patent system on multiple fronts, including in the courts, in Congress, at the White House, and before the US Patent and Trademark Office. On Wednesday, Nazer scored a victory against Personal Audio when a judge agreed to quash the notorious patent troll's subpoena for the names of donors who supported EFF's Save Podcasting campaign.

"This is an exciting time to be working on patent reform," said Nazer, who practiced law at Keker & Van Nest LLP before joining EFF at the start of 2013. "The next few months could see new legislation, important Supreme Court decisions, and action from the president. We need to make sure we get real reform that stops the flood of abusive patent troll litigation. I look forward to building on Julie Samuel's success as the Mark Cuban Chair to Eliminate Stupid Patents."

One of the first items of business will be to push Congress to pass meaningful reform. With the Innovation Act overwhelmingly passing in the House (by a vote of 325 to 91), it is now the Senate's turn. Over 5,000 inventors, entrepreneurs, investors, and concerned citizens have signed EFF's letter urging the Senate to act. EFF will continue to develop TrollingEffects.org, an online clearinghouse of crowd-sourced intelligence on patent trolls launched last year in collaboration with a coalition of organizations and law schools.

"Daniel has been an invaluable colleague, and I know he will head up EFF's patent work with dedication and success," Samuels said. "I look forward to continuing to collaborate with him, and the entire EFF patent team, as we all work toward fixing a broken patent system."

For a high resolution image of Daniel Nazer with formal bio:
https://www.eff.org/about/staff/daniel-nazer

Contact:

Daniel Nazer
   Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   daniel@eff.org

March 3, 2014

Legal Briefings Still Under Seal After Government Demands for Secrecy

San Francisco - The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals.  The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security. 

While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.

“The NSL statute allows the FBI to demand potentially protected information without any court oversight,” EFF Senior Staff Attorney Matt Zimmerman said.  “Furthermore, it permits the FBI to independently gag recipients so that NSL recipients like our clients have no ability to notify their customers or the public that any demands were made, let alone that they went to court to stop them.  Our clients strongly desire to bring their unique perspectives to the ongoing national discussion on intrusive government spying, and they have timely and relevant information to contribute to that debate. However, the FBI’s unconstitutional NSL authority prevents these companies from exercising their rights and taking part in this critically important conversation.”

In March 2013 a federal district court judge in San Francisco agreed with EFF and ruled the NSL provisions unconstitutional, barring future NSLs and accompanying gag orders.  That ruling was stayed pending appeal, however, and the district court has subsequently enforced separate NSLs—including NSLs issued to both EFF clients—and indicates that it will continue to do so until the Ninth Circuit rules on EFF’s challenges. 

“The fight over NSLs and the government’s dangerous practice of bypassing meaningful review by the judicial branch is not an academic one—real people and real companies are involved, battling for their constitutional rights and the rights of their users,” Zimmerman said.  “The district court was right: the First Amendment prevents the FBI from engaging in such invasive, secretive, and unaccountable activities.  We are eager to explain to the Court of Appeals why it should come to the same conclusion.”

EFF also recently re-launched its Frequently Asked Questions page on National Security Letters. Read it at: https://www.eff.org/issues/national-security-letters-faq

For more on the National Security Letter cases: https://www.eff.org/cases/re-matter-2011-national-security-letter

Contact:

Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz@eff.org

March 3, 2014

Two Big Cases Could Protect Software Innovators – and Their Customers – From Patent Lawsuits

San Francisco - The Electronic Frontier Foundation (EFF) urged the U.S. Supreme Court to crack down on patent trolls and the schemes they use to perpetuate their lawsuits in two amicus briefs filed today.

"Patent trolls and their payoff demands depend on a flawed U.S. patent system," said EFF Senior Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "The cases the Supreme Court is tackling this term are prime examples of patent lawsuits gone awry. We're asking the justices today to enforce the law and protect new businesses, new gadgets, and the customers who use these products and services by providing clear rules that crack down on patent trolls."

In Nautilus v. Biosig Instruments, the Supreme Court could curtail vague and ambiguous patents that are currently allowed by the Federal Circuit. Under that standard, patent claims can stand even if "reasonable people can disagree" over the patent's meaning, and no matter "however difficult that task may be" to understand it. This has sparked a rash of vague patents, and EFF asked justices in today's brief to restore the Patent Act's requirement that patent claims be clear.

"Vague patents are extraordinarily prevalent in software, and they are a favorite tool of patent trolls," said EFF Staff Attorney Daniel Nazer. "If you can cleverly craft an ambiguous patent, you can stretch the claims later to cover all sorts of things you hadn't thought of at the time. Clarifying the law here and requiring definite claims is a straightforward, substantial way to improve patent quality and reduce shake-down patent litigation."

Limelight Networks v. Akamai Technologies involves a patent question over Limelight's content-distribution network, which allows for server-side storage of web content. Limelight's customers perform one of the steps of the patent at issue – tagging the remote content – but Akamai wants to enforce its patent anyway. In the brief filed today, EFF argues that Akamai's legal strategy could create a new category of patent defendants: end-users who unknowingly performed one of the steps.

"Imagine what would happen if using a piece of software or other service sold to you legally could result in a major patent infringement case," said Samuels. "Luckily, courts thus far have instituted a common-sense rule protecting end-users and consumers, and we're hopeful the Supreme Court will keep up this trend."

So far this term, EFF has filed four amicus briefs with the Supreme Court on patent and patent troll issues. Last week, EFF urged the court to rein in overbroad patents that are impermissibly abstract in Alice Corp. v. CLS Bank. In December, EFF filed a brief in Octane Fitness, LLC v. Icon Health & Fitness, Inc., urging the court to make it easier for prevailing defendants to get attorney's fees in patent cases.

For the full brief in Nautilus v. Biosig:
https://www.eff.org/document/nautilus-v-biosig-amicus-supreme-court

For the full brief in Limelight v. Akamai:
https://www.eff.org/document/limelight-v-akamai-amicus-supreme-court

Contacts:

Julie Samuels
   Senior Staff Attorney
   The Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   julie@eff.org

Daniel Nazer
   Staff Attorney
   Electronic Frontier Foundation
   daniel@eff.org

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