Press Releases: May 2014
EFF Urges Judge to Rule Destroyed Evidence Would Show Clients Were Surveilled
San Francisco - The Electronic Frontier Foundation (EFF) told a federal court today that there was no doubt that the government has destroyed years of evidence of NSA spying – the government itself has admitted to it in recent court filings. In a brief filed today in response to this illegal destruction, EFF is asking that the court make an "adverse inference" that the destroyed evidence would show that plaintiffs communications and records were in fact swept up in the mass NSA spying programs.
EFF filed its first lawsuit challenging illegal government spying in 2006. The current dispute arises from Jewel v. NSA, EFF's 2008 case that challenges the government's mass seizure of three kinds of information: Internet and telephone content, telephone records, and Internet records, all going back to 2001. EFF's brief notes that the government's own declarations make clear that the government has destroyed five years of the content it collected between 2007 and 2012, three years worth of the telephone records it seized between 2006 and 2009, and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended the Internet records seizures.
"The court has issued a number of preservation orders over the years, but the government decided – without consent from the judge or even informing EFF – that those orders simply don't apply," said EFF Legal Director Cindy Cohn. "Regular civil litigants would face severe sanctions if they so obviously destroyed relevant evidence. But we are asking for a modest remedy: a ruling that we can assume the destroyed records would show that our plaintiffs were in fact surveilled by the government."
The government's reinterpretation of EFF's lawsuits and the preservation orders came to light in March, when government lawyers revealed secret court filings from 2007. In these filings, the government unilaterally claimed that EFF's lawsuits only concerned the original Bush-era spying program, which was done purely on claims of executive power. Without court approval, much less telling EFF, the government then decided that it did not need even to preserve evidence of the same mass spying done pursuant to FISA court orders, which were obtained in 2004 for Internet records, 2006 for telephone records, and 2007 for mass content collection from fiber optic cables.
"EFF and our clients have always had the same simple claim: the government's mass, warrantless surveillance violates the rights of all Americans and must be stopped. The surveillance was warrantless under the executive's authority and it is still warrantless under the FISA court, as those orders are plainly not warrants." said Cohn. "The government's attempt to limit our claims based upon their secret, shifting rationales is nothing short of outrageous, and their clandestine decision to destroy evidence under this flimsy argument is rightly sanctionable. Nevertheless, we are simply asking the court to ensure that we are not harmed by the government's now-admitted destruction of this evidence."
For the full brief on the government's non-compliance:
For more on Jewel v. NSA:
Electronic Frontier Foundation
Electronic Frontier Foundation
EFF Faces Off Against Department of Justice in Federal Court in Oakland
Oakland - At a hearing on Tuesday, June 3, Electronic Frontier Foundation (EFF) Staff Attorney Mark Rumold will argue before a judge that the U.S. Department of Justice (DOJ) must release key legal opinions of the Foreign Intelligence Surveillance Court (FISC) regarding Section 215 of the Patriot Act—the law the National Security Agency (NSA) uses to collect telephone records on a massive scale.
EFF filed the Freedom of Information Act lawsuit against the DOJ to obtain "secret interpretations" of Section 215 in October 2011, 18 months before the public leak of the FISC order that showed how the NSA indiscriminately obtained call metadata from Verizon. So far, the court has ordered the government to release hundreds of pages of previously secret documents, including FISA court opinions that excoriated the NSA for misusing its mass surveillance database for years.
The June 3 hearing may determine whether the DOJ will be forced to release further records, some of which may shine light on other undisclosed mass surveillance programs.
"This hearing, almost a year to the day after the first article appeared in The Guardian about the NSA's use of Section 215, shows how far we've come in a year," Rumold said. "But it also shows how far we have left to go. Now, the public has much more information about the government's bulk collection of Americans' records, but other significant legal opinions and other collection programs still remain secret. The public needs access to this information, and the public needs that access now."
What: Motion for Summary Judgment
Date: Tuesday, June 3
Time: 2:00 p.m.
Place: Courtroom 1, 4th Floor
Ronald V. Dellums Federal Building
1301 Clay Street, Oakland, CA 94612
Judge: Hon. Yvonne Gonzalez Rogers
For more on EFF's 215 cases:
Electronic Frontier Foundation
EFF and ARTICLE 19 Urges Governments to Preserve Fundamental Freedoms in the Age of Mass Surveillance
San Francisco and London – As the global debate over the intelligence programs revealed by Edward Snowden approaches its first anniversary, the Electronic Frontier Foundation (EFF) and ARTICLE 19 today published a new legal analysis of the Necessary & Proportionate Principles, a guiding framework for countries to apply international human rights law to communications surveillance.
Currently, there are few legal or technological constraints on international monitoring, data gathering, and use of digital communications. This report serves as important context and background as states around the world discuss the future of privacy.
"As our everyday interactions, activities and communications now emit a continuous stream of revealing information, the question has become: how do we preserve fundamental freedoms in the digital age?” EFF International Rights Director Katitza Rodriguez said. “This paper explains how and why we must rein in unchecked surveillance state at home and abroad and protect the freedoms of everyone, regardless of citizenship or statelessness."
Thomas Hughes, executive director of ARTICLE 19, added: "Mass surveillance violates our rights to freedom of expression and privacy. Almost a year after the Snowden revelations, little to no progress has been made in ensuring that surveillance practices meet international legal standards. This report shows that mass surveillance laws must be overhauled as a matter of urgency."
The Necessary & Proportionate Principles were launched in July 2013 after a year of consultation between privacy advocates and technology experts, and have since gathered momentum across the globe and in the United Nations itself. More than 400 organizations and 300,000 individuals have endorsed the principles, which articulate how unchecked surveillance power can threaten privacy, association and free expression
The background paper:
For the principles:
About the Electronic Frontier Foundation:
The Electronic Frontier Foundation is the leading organization protecting civil liberties in the digital world. Founded in 1990, we defend free speech online, fight illegal surveillance, promote the rights of digital innovators, and work to ensure that the rights and freedoms we enjoy are enhanced, rather than eroded, as our use of technology grows. EFF is a member-supported organization. Find out more at https://www.eff.org.
About ARTICLE 19
ARTICLE 19 is an independent human rights organization that works around the world to protect and promote the right to freedom of expression and the right to freedom of information. It takes its name from Article 19 of the Universal Declaration on Human Rights. ARTICLE 19 monitors threats to freedom of expression in different regions of the world, as well as national and global trends and develops long-term strategies to address them and advocates for the implementation of the highest standards of freedom of expression, nationally and globally.
International Rights Director
Electronic Frontier Foundation
Copyright Holders Can't Abuse Legal System to Pressure Thousands of Internet Users to Pay Unfair Settlements
Washington, D.C. - Striking a crushing blow against a legal linchpin of the copyright troll business model, a federal appeals court held today that copyright holders may not abuse the legal process to obtain the identities of thousands of Internet users.
"This decision is a crucial victory," said Electronic Frontier Foundation (EFF) Intellectual Property Director Corynne McSherry. "We are thrilled that a higher court has recognized that it is unfair to sue thousands of people at once, in a court far from home, based on nothing more than an allegation that they joined a BitTorrent swarm."
The plaintiff in this case, AF Holdings, sought the identities of more than 1,000 Internet users that it claims are linked to the illegal downloading of a copyrighted pornographic film. Over the protest of the Internet service providers that received subpoenas for those identities, a lower court approved the disclosure of the names. EFF, joined by the American Civil Liberties Union, the ACLU of the Nation's Capital, Public Citizen, and Public Knowledge, urged the U.S. Court of Appeals for the District of Columbia Circuit to reverse that ruling and help keep the legal process fair and balanced by requiring AF Holdings to show it has a good faith basis for going after these defendants.
This same coalition has fought for years in courts around the country to explain how the trolls were abusing the legal process to extort settlements from unsuspecting John Does. While several district courts have agreed, this is the first time a federal appeals court has weighed in.
The case is one of hundreds around the country that follow the same pattern. A copyright troll looks for IP addresses that may have been used to download films (often adult films) via BitTorrent, files a single lawsuit against thousands of "John Doe" defendants based on those IP addresses, then seeks to subpoena the ISPs for the contact information of the account holders associated with those IP addresses. The troll then uses that information to contact the account holders and threatens expensive litigation if they do not settle promptly. Faced with the prospect of hiring an attorney and litigating the issue, often in a distant court, most subscribers—including those who may have done nothing wrong—will choose to settle rather than fight.
"Once a troll gets the names it's looking for, then it already has what it needs to put its shakedown scheme in motion," EFF Staff Attorney Mitch Stoltz said. "For the defendants, it will come down to risking being named in a lawsuit over a pornographic movie, or settling for less than the cost of hiring an attorney. As a matter of law and basic fairness, a copyright plaintiff needs to show that its case is on solid ground before putting hundreds of Internet users into that kind of bind."
AF Holdings is linked to Prenda Law, a firm that is facing allegations that it used stolen identities and fictitious signatures on key legal documents and made other false statements to the courts.
For the text of the opinion:
Intellectual Property Director
Electronic Frontier Foundation
Electronic Frontier Foundation
EFF Survey Shows Improved Privacy and Transparency Policies of the Internet's Biggest Companies
San Francisco - Technology companies are privy to our most sensitive information: our conversations, photos, location data, and more. But which companies fight the hardest to protect your privacy from government data requests? Today, the Electronic Frontier Foundation (EFF) releases its fourth annual "Who Has Your Back" report, with comprehensive information on 26 companies' commitments to fighting unfair demands for customer data. The report examines the privacy policies, terms of service, public statements, and courtroom track records of major technology companies, including Internet service providers, email providers, social networking sites, and mobile services.
"The sunlight brought about by a year's worth of Snowden leaks appears to have prompted dozens of companies to improve their policies when it comes to giving user data to the government," said EFF Activism Director Rainey Reitman. "Our report charts objectively verifiable categories of how tech companies react when the government seeks user data, so users can make informed decisions about which companies they should trust with their information."
EFF's report awards up to six gold stars for best practices in categories like "require a warrant for content" and "publish transparency reports." Last year, just two companies we surveyed earned a full six stars – Sonic, a California ISP, and Twitter.* This year, Apple, CREDO Mobile, Dropbox, Facebook, Google, Microsoft, and Yahoo all joined Sonic and Yahoo in receiving six full stars, and several others – LinkedIn, Pinterest, SpiderOak, Tumblr, Wickr and Wordpress – only missed getting all six stars because they did not have to bring public court battles on behalf of their users.
This year, the majority of the companies surveyed have made a formal commitment to inform users when their data was sought, a welcome safeguard that gives users the information they need to fight on their own. This shows that the technology industry is adopting a best practice pioneered by Twitter, which in 2010 fought for the right to tell its users about a government order for their information as part of the WikiLeaks investigation.
Additionally, 20 of the companies EFF reviewed published transparency reports detailing government requests for user data, which is a striking increase from last year, when only seven companies in EFF's report published them. This is now a new standard in the tech industry: corporations are actively and voluntarily working to shed light on the government attempts to access user data. However, it's not all good news in this year's report. Photo-messaging application Snapchat received only one star – particularly troubling due to the sensitive nature of photos and the company's young user base.
"Snapchat joins AT&T and Comcast in failing to require a warrant for government access to the content of communications. That means the government can obtain extraordinarily sensitive information about your activities and communications without convincing a judge that there is probable cause to collect it," said EFF Staff Attorney Nate Cardozo. "We urge these companies to change course and give their users this simple and needed protection from government overreach."
As part of this year's report, EFF collaborated with data analysis company Silk to help explore trends in government access requests. Silk's analysis provides a simple mechanism for reporters and the general public to explore corporate transparency reports, shedding light on which companies receive the most data requests, which companies push back against government data requests, and which countries are most aggressive in demanding user data.
For the full report "Who Has Your Back":
For the Silk analysis:
Media Relations Director
Electronic Frontier Foundation
Correction: An earlier version of this report accidentally omitted Twitter from the list of companies that received six stars in last year's report.
Debate Over Mass Surveillance Hampered by Undisclosed FISA Court Decisions
San Francisco - In a continuing campaign to uncover the government's secret interpretations of the surveillance laws underlying the National Security Agency (NSA)'s spying programs, the Electronic Frontier Foundation (EFF) today filed another lawsuit against the Department of Justice, demanding that the government hand over key Foreign Intelligence Surveillance Court (FISA court) opinions and orders.
"We can't have an informed debate about mass surveillance with access to only half the story," EFF Staff Attorney Mark Rumold said. "The government's secret interpretation of laws and the Constitution needs to end. Disclosure of the opinions we've requested will be an important step towards providing the public with the information it needs to meaningfully debate the propriety of these programs."
In recent months, the U.S. intelligence community has sought to repair its image by posting FISA court decisions and other documents on a new Tumblr site, icontherecord.tumblr.com. While this looks like an altruistic attempt to provide transparency, government officials often fail to acknowledge that the documents are primarily being made public in response to successful FOIA litigation from organizations such as EFF.
So far, EFF's FOIA lawsuits have forced the government to disclose FISA court opinions detailing how the NSA violated court orders and the Fourth Amendment, as well other troubling facts and insight about the operations of these programs. We have also learned of the existence of other records and opinions that EFF believes should be made public.
"With all the disclosures that have taken place over the past year, there's no valid reason these opinions are still secret," EFF Senior Counsel David Sobel said. "The government's refusal to provide these opinions looks more like an attempt to control public opinion about the NSA's operations, rather than protecting any legitimate intelligence sources or methods. "
EFF has yet to receive key documents in response to four outstanding FOIA requests. Among the most significant records EFF is seeking in this FOIA suit:
- The FISA court's "Raw Take" order, which was revealed in documents released by Edward Snowden. According to the New York Times, this secret 2002 order weakened restrictions on sharing private data, allowing federal intelligence agencies to share unfiltered information about Americans.
- Two FISA court opinions from 2007 that first authorized, then later stopped, the NSA's warrantless content collection program approved by President George W. Bush.
- The first FISA court opinion from 2008 that analyzed the legality of NSA surveillance under Section 702 of the FISA Amendments Act.
EFF has also requested any still-secret Foreign Intelligence Surveillance Court of Review (FISCR) decisions and appeals from the FISCR to the Supreme Court on NSA surveillance.
For the complaint: https://www.eff.org/document/eff-v-doj-fisc-opinion-foia-2014
For more information and the underlying FOIA requests: https://www.eff.org/foia/fisc-orders-illegal-government-surveillance