EFF in the News
"We seriously doubt that this bill is constitutional," said Lee Tien, a senior staff attorney with the Electronic Frontier Foundation. "A law that essentially requires you to hand over your phone to a cop in a roadside situation without a warrant is a non-starter."
Nate Cardozo, Senior Staff Attorney at the Electronic Frontier Foundation, an organization that defends civil liberties in the digital world
"The U.S. government is unlawfully and unconstitutionally preventing Microsoft from telling its users about surveillance activity," said Lee Tien, senior staff attorney for Internet Rights at the Electronic Frontier Foundation (EFF). "We deserve to know when the government is collecting data about our digital lives."
Coming from Microsoft, the lawsuit helps educate the court on the severity of the issue and shed some light on how secret orders are affecting users, according to Tien. "Large providers like [Microsoft] have a view of the Internet, of the cloud, and of the U.S. government's practices and tactics that most companies (or groups like EFF) don't have," he said. "[Microsoft] can clearly and authoritatively tell the court, as it has, about how often it is gagged, and for how long."
"At the end of the day, when you are being investigated by the government, you should know about the investigation so you can prepare a defense," said Mark Jaycox of the Electronic Frontier Foundation, a digital rights group.
Microsoft's challenge of that practice was also praised by Andrew Crocker, staff attorney for the Electronic Frontier Foundation. "In nearly all cases, indefinite gag orders are an unconstitutional prior restraint on free speech and infringe on First Amendment rights," Crocker told us via e-mail through a spokesperson. "Microsoft's complaint shows it receives a staggering number of these orders. We look forward to assisting in this important lawsuit."
The rule could run up against First Amendment issues. Dave Maass, a researcher with the Electronic Frontier Foundation who has studied inmate social media regulations, said he thought the rule was unconstitutionally broad.
“This policy violates the free speech rights of both the inmates and the family members and friends of inmates,” Maass said. “I don’t think it’s appropriate for a prison to tell someone on the outside what they can and can’t post when it doesn’t involve criminal activity.”
Andrew Crocker, staff attorney at the Electronic Frontier Foundation, a digital rights group, said changes in the new discussion draft were minimal and the bill still threatened Internet security because companies would only be able to comply by weakening encryption in all their products.
Lee Tien, senior staff attorney at the Electronic Frontier Foundation (EFF), agrees that the technology is ripe for misuse.
"I think a law that essentially requires you to hand over your phone to a cop in a roadside situation without a warrant is a non-starter. I know that the supporters of this law talk about how it is designed to keep police away from these sensitive areas of your life. But really, that’s ridiculous. They’re human and they stray or make errors in judgment," he said.
Both Lieberman and Tien also mentioned that police officers looking to investigate a driver's phone use can obtain call and texting records with time stamps from phone companies.
Though trip data may not include names, it still could be used in conjunction with other data to identify drivers and passengers, said Andrew Crocker, a staff attorney with the Electronic Frontier Foundation in San Francisco.
"I think it's always concerning when location data and other possibly identifying data is being shared by third parties about you," he said.
In a phone interview, Mitch Stoltz, senior staff attorney at the Electronic Frontier Foundation, said the NAA's claim falls into a bit of a gray area. "Cases have gone both ways on this point," he said, noting that in some instances where websites have presented content in a frame, that's been considered infringement.
"If the claim that the publishers are making is everyone must view their pages exactly as intended, that's dangerous," said Stoltz, because an adverse ruling could affect screen readers and other tools for customizing Web content.