Press Releases: August 2017
Police Have Collected Data on Millions of Law-Abiding Drivers Via License Readers
San Francisco, California—The Electronic Frontier Foundation (EFF) and the ACLU won a decision by the California Supreme Court that the license plate data of millions of law-abiding drivers, collected indiscriminately by police across the state, are not “investigative records” that law enforcement can keep secret.
California’s highest court ruled that the collection of license plate data isn’t targeted at any particular crime, so the records couldn’t be considered part of a police investigation.
“This is a big win for transparency in California,” attorney Peter Bibring, director of police practices at the ACLU of Southern California, which joined EFF in a lawsuit over the records. “The Supreme Court recognized that California’s sweeping public records exemption for police investigations doesn’t cover mass collection of data by police, like the automated scanning of license plates in this case. The Court also recognized that mere speculation by police on the harms that might result from releasing information can’t defeat the public’s strong interest in understanding how police surveillance impacts privacy."
The ruling sets a precedent that mass, indiscriminate data collection by the police can’t be withheld just because the information may contain some criminal data. This is important because police are increasingly using technology tools to surveil and collect data on citizens, whether it’s via body cameras, facial recognition cameras, or license plate readers.
The panel sent the case back to the trial court to determine whether the data can be made public in a redacted or anonymized form so drivers’ privacy is protected.
“The court recognized the huge privacy implications of this data collection,” said EFF Senior Staff Attorney Jennifer Lynch. “Location data like this, that’s collected on innocent drivers, reveals sensitive information about where they have been and when, whether that’s their home, their doctor’s office, or their house of worship.”
Automated License Plate Readers or ALPRs are high-speed cameras mounted on light poles and police cars that continuously scan the plates of every passing car. They collect not only the license plate number but also the time, date, and location of each plate scanned, along with a photograph of the vehicle and sometimes its occupants. The Los Angeles Police Department (LAPD) and the Los Angeles County Sheriff's Department (LASD) collect, on average, three million plate scans every week and have amassed a database of half a billion records.
EFF filed public records requests for a week’s worth of ALPR data from the agencies and, along with American Civil Liberties Union-SoCal, sued after both agencies refused to release the records.
EFF and ACLU SoCal asked the state supreme court to overturn a lower court ruling in the case that said all license plate data—collected indiscriminately and without suspicion that the vehicle or driver was involved in a crime—could be withheld from disclosure as “records of law enforcement investigations.”
EFF and the ACLU SoCal argued the ruling was tantamount to saying all drivers in Los Angeles are under criminal investigation at all times. The ruling would also have set a dangerous precedent, allowing law enforcement agencies to withhold from the public all kinds of information gathered on innocent Californians merely by claiming it was collected for investigative purposes.
EFF and ACLU SoCal will continue fighting for transparency and privacy as the trial court considers how to provide public access to the records so this highly intrusive data collection can be scrutinized and better understood.
For more on this case:
Full Frontal’s Ashley Nicole Black Keynotes Ceremony for Honorees Sept. 14 in San Francisco
SAN FRANCISCO, CALIFORNIA—The Electronic Frontier Foundation (EFF) announced today that whistleblower and activist Chelsea Manning, Techdirt editor and open internet advocate Mike Masnick, and IFEX executive director and global freedom of expression defender Annie Game are the distinguished winners of the 2017 Pioneer Awards, which recognize leaders who are extending freedom and innovation on the electronic frontier. This year’s honorees—a whistleblower, an editor, and an international freedom of expression activist—all have worked tirelessly to protect the public’s right to know.
The award ceremony will be held the evening of September 14 at Delancey Street’s Town Hall Room in San Francisco. The keynote speaker is Emmy-nominated comedy writer Ashley Nicole Black, a correspondent on Full Frontal with Samantha Bee who uses her unique comedic style to take on government surveillance, encryption, and freedom of information. Tickets for the ceremony are $65 for current EFF members, or $75 for non-members.
Chelsea E. Manning is a network security expert, whistleblower, and former U.S. Army intelligence analyst whose disclosure of classified Iraq war documents exposed human rights abuses and corruption the government kept hidden from the public. While serving in Iraq, Chelsea worked to release hundreds of thousands of classified war and State Department files on the Internet, including a video depicting the shooting deaths of Iraqi civilians and two Reuters reporters by U.S. troops. Chelsea’s conscience-driven leaks exposed critical information about U.S. involvement in Iraq and Afghanistan and made it available online to journalists and citizens around the world, greatly contributing to public knowledge, understanding, and discussion of the government’s actions. While serving seven years of an unprecedented 35-year sentence for leaking the documents, she became a prominent and vocal advocate for government transparency and transgender rights, both on Twitter and through her op-ed columns for The Guardian and The New York Times. She currently lives in the Washington, D.C. area, where she writes about technology, artificial intelligence, and human rights.
Mike Masnick is the founder and editor of the popular and respected Techdirt blog and an outspoken activist for digital rights, the First Amendment, and a free and open Internet. For 20 years Mike has explored the intersection of technology, policy, civil liberties, and economics, making Techdirt a must-read for its insightful and unvarnished analysis. He was a powerful voice in the fight against SOPA, and coined the term “The Streisand Effect.” Today Mike is in a fight for Techdirt’s survival—he and the weblog are targets of a $15 million libel lawsuit for publishing articles disputing claims of a man who says he invented email. The case pits Mike and Techdirt against the self-proclaimed email inventor and his lawyer, who, bankrolled by Peter Thiel, brought down Gawker. Mike has vowed to stand up for a free and independent press and fight this attempt to silence—or drive out of business—his blog for publishing First Amendment-protected opinions.
Annie Game is Executive Director of IFEX, a global network of over 115 journalism and civil liberties organizations that defends and promotes freedom of expression as a fundamental human right. IFEX exposes threats to online free expression, focuses on bringing to justice those who harm or kill journalists, and advocates for the rights of media workers, women and LGBT journalists, citizen journalists, and activists. For over 10 years Annie has led IFEX’s efforts to free imprisoned journalists, defend online activists targeted by repressive regimes, provide tools for organizing successful campaigns advocating for free expression, and expose legislation aimed at quelling free speech. Under Annie’s leadership, IFEX has begun pairing more traditional free expression organizations with their more digitized counterparts with a focus on building organizational security capacities. Annie has been activist throughout her career in the NGO sector and is also a published writer and broadcaster of satire and humor.
“It’s an honor to celebrate this year’s Pioneer Award winners and the work they’ve done to fight for transparency and the rights of all people to freely express their opinions, passions, and beliefs without fear of censorship or retaliation,” said EFF Executive Director Cindy Cohn. “In these turbulent times, it’s essential that the Internet remain free and open and a source of critical information for people around the world. This group of pioneers, often in the face of great personal risk, have stood up courageously and relentlessly for users, for freedom, and for truth. Their work is an inspiration as we continue to defend global digital rights.”
Awarded every year since 1992, EFF’s Pioneer Awards recognize the leaders who are extending freedom and innovation on the electronic frontier. Previous honorees have included Malkia A. Cyril, Aaron Swartz, Laura Poitras, and Citizen Lab.
Special thanks to Airbnb and Ron Reed for supporting EFF and the 2017 Pioneer Awards ceremony. If you or your company are interested in learning more about sponsorship, please contact firstname.lastname@example.org.
Join us for the 2017 Pioneer Awards
Outdated ‘Third Party’ Doctrine Lets Law Enforcement Violate Your Privacy
Washington, D.C - The Electronic Frontier Foundation (EFF) urged the U.S. Supreme Court today to curb law enforcement’s expansive tracking of suspects’ cell phones, arguing that police must get a warrant before collecting the detailed location data that all phones generate as part of their routine functioning.
The defendants in U.S. v. Carpenter were convicted after hundreds of days of location data collected from their wireless carriers associated them with a string of armed robberies. But investigators obtained those location records through a lower legal standard than needed for a warrant, relying on the “third-party doctrine”—an outdated legal standard that says if you voluntarily give certain information to entities like banks or the phone company, you have no expectation of privacy in the data.
“The Supreme Court developed the third-party doctrine at a time when everyone used rotary-dial, land-line phones, which couldn't reveal very much about the people who used them,” said EFF Senior Staff Attorney Jennifer Lynch. “The location data our cell phones generate now is much more detailed. As cell phones connect to cell towers and antennas hundreds of times a day, it creates a non-stop flow of information on everywhere we travel—revealing things like when we're at home, whether we're seeing a therapist, where we worship, or what kind of political meetings we might attend. This is far too sensitive information to obtain without a warrant based on probable cause.”
Judges in several states and some federal courts have already recognized that the third-party doctrine should not apply to cell site location data. Meanwhile, in two major recent decisions, the Supreme Court found that modern technology requires updated interpretations of privacy law in order to safeguard constitutional rights. In 2014, the court held that the astounding amount of sensitive data stored on smartphones requires police to obtain a warrant before accessing data on an arrestee’s device. And in a landmark 2012 decision, the court decided that using a GPS tracking device on a suspect’s car is a search under the Fourth Amendment. As it’s impossible to use mapping services, fitness trackers, or many other technologies without sharing data with third-parties, extending these decisions is critical to preserving privacy in the 21st century.
“Taking advantage of everyday conveniences shouldn’t mean that we have to relinquish our constitutional rights,” said EFF Staff Attorney Andrew Crocker. “We’ve seen the Supreme Court move in the right direction in these cases, and we hope they continue that trend here.”
For our amicus brief in U.S. v. Carpenter:
Nation’s Highest Court Being Asked for the First Time to Weigh In On Legality of NSA’s PRISM Spying
WASHINGTON, D.C.—The Electronic Frontier Foundation (EFF) asked the Supreme Court to review and overturn an unprecedented ruling allowing the government to intercept, collect, and store—without a warrant—millions of Americans’ electronic communications, including emails, texts, phone calls, and online chats.
This warrantless surveillance is conducted by U.S. intelligence agencies under Section 702 of the Foreign Intelligence Surveillance Act. The law is exceedingly broad—Section 702 allows the government to conduct surveillance of any foreigner abroad—and the law fails to protect the constitutional rights of Americans whose texts or emails are “incidentally” collected when communicating with those people.
This warrantless surveillance of Americans is unconstitutional and should be struck down.
Yet the U.S. Court of Appeals for the Ninth Circuit, ruling in U.S. v. Mohamud, decided that the Fourth Amendment doesn’t apply to Americans whose communications were intercepted incidentally and searched without a warrant. The case centered on Mohammed Mohamud, an American citizen who in 2012 was charged with plotting to bomb a Christmas tree lighting ceremony in Oregon. After he had already been convicted, Mohamud was told for the first time that information used in his prosecution was obtained using Section 702. Further disclosures clarified that the government used the surveillance program known as PRISM, which gives U.S. intelligence agencies access to communications in the possession of Internet service providers such as Google, Yahoo, or Facebook, to obtain the emails at issue in the case. Mohamud sought to suppress evidence gathered through the warrantless spying, arguing that Section 702 was unconstitutional.
In a dangerous and unprecedented ruling, the Ninth Circuit upheld the warrantless search and seizure of Mohamud’s emails. EFF, the Center for Democracy & Technology, and New America’s Open Technology Institute filed an amicus brief today asking the Supreme Court to review that decision.
“The ruling provides an end-run around the Fourth Amendment, converting sweeping warrantless surveillance directed at foreigners into a tool for spying on Americans,” said EFF Senior Staff Attorney Mark Rumold. “Section 702 is unlike any surveillance law in our country’s history, it is unconstitutional, and the Supreme Court should take this case to put a stop to this surveillance.”
Section 702, which is set to expire in December unless Congress reauthorizes it, provides the government with broad authority to collect, retain, and search Americans’ international communications, even if they don’t contain any foreign intelligence or evidence of a crime.
“We urge the Supreme Court to review this case and Section 702, which subjects Americans to warrantless surveillance on an unknown scale,” said EFF Staff Attorney Andrew Crocker. “We have long advocated for reining in NSA mass surveillance, and the ‘incidental’ collection of Americans’ private communications under Section 702 should be held unconstitutional once and for all.”
For the amicus brief:
For more on Section 702:
For more on NSA spying:
Whether Conducted Manually or Using Forensic Software, Cell Phone Searches Are Highly Intrusive
New Orleans, Louisiana—Searches of mobile phones, laptops, and other digital devices by federal agents at international airports and U.S. land borders are highly intrusive forays into travelers’ private information that require a warrant, the Electronic Frontier Foundation (EFF) said in a court filing yesterday.
EFF urged the U.S. Circuit Court of Appeals for the Fifth Circuit to require law enforcement officers at the border to obtain a warrant before performing manual or forensic searches of digital devices. Warrantless border searches of backpacks, purses, or luggage are allowed under an exception to the Fourth Amendment for routine immigration and customs enforcement. Yet EFF argues that, since digital devices can provide so much highly personal, private information—our contacts, our email conversations, our work documents, our schedules—agents should be required to show they have probable cause to believe that the device contains evidence of a violation of the immigration or customs laws. Only after a judge has signed off on a search warrant should border agents be allowed to rifle through the contents of cell phones, laptops, or tablets.
Digital device searches at the border have more than doubled since the inauguration of President Trump. This increase, along with the increasing number of people who carry these devices while traveling, has highlighted the need for stronger privacy rights while crossing the U.S. border.
“Our cell phones and laptops provide access to an unprecedented amount of detailed, private information, often going back many months or years, from emails to our coworkers to photos of our loved ones and lists of our closest contacts. This is light years beyond the minimal information generally contained in other kinds of personal items we might carry in our suitcases. It’s time for courts and the government to acknowledge that examining the contents of a digital device is highly intrusive, and Fourth Amendment protections should be strong, even at the border,” said EFF Staff Attorney Sophia Cope.
EFF filed its brief with the U.S. Court of Appeals for the Fifth Circuit in U.S. v. Molina-Isidoro. In that case, Maria Isabel Molina-Isidoro’s cell phone was manually searched at the border, supporting her prosecution for attempting to import methamphetamine into the country.
The Supreme Court has held that cell phones hold “the privacies of life,” and police need a warrant to search the contents of a phone seized during an arrest. The same principle should apply to the digital devices seized at the border, EFF told the appeals court.
“Any search of data stored on a digital device, whether performed using special forensic software or conducted manually after obtaining and entering the owner’s password, provides access to a person’s entire private life,” said EFF Senior Staff Attorney Adam Schwartz.
EFF is urging the court to find that the extraordinary privacy interests that travelers have in their digital devices render warrantless searches of those devices unreasonable under the Fourth Amendment. Border agents should be required to show they have sufficient cause for this immense invasion of privacy.
For more about digital privacy at the U.S. border:
Personal Audio Didn’t Invent Anything New, EFF Argued
San Francisco, California—The Electronic Frontier Foundation (EFF) won a court ruling today affirming that an infamous podcasting patent used by a patent troll to threaten podcasters big and small was properly held invalid by the U.S. Patent and Trademark Office (USPTO).
A unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Federal Circuit will, for now, keep podcasting safe from this patent.
In October 2013, EFF filed a petition at the USPTO challenging the so-called podcasting patent owned by Personal Audio and asking the court to use an expedited process for taking a second look at the patent. More than one thousand people donated to our Save Podcasting campaign to support our efforts.
EFF's petition showed that Personal Audio did not invent anything new and, in fact, other people were podcasting years before Personal Audio first applied for a patent. In preparation for this filing, EFF solicited help from the public to find prior art or earlier examples of podcasting.
In April 2015, the Patent Office invalidated all the challenged claims of the podcasting patent, finding that the patent should not have been issued in light of two earlier public disclosures, one relating to CNN news clips and one relating to CBC online radio broadcasting.
Personal Audio challenged the Patent Office decision, but the Court of Appeals for the Federal Circuit agreed with us that the patent did not represent an invention, and podcasting was known before Personal Audio’s patent was applied for.
“We’re pleased that the Federal Circuit agreed that the podcasting patent is invalid,” said Daniel Nazer, Staff Attorney at EFF and the Mark Cuban Chair to Eliminate Stupid Patents. “We appreciate all the support the podcasting community gave in fighting this bad patent.”
“Although we’re happy that this patent is still invalid, Personal Audio could seek review at the Supreme Court,” said Vera Ranieri, Staff Attorney at EFF. “We’ll be there if they do.”
For more on this case: