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June 13, 2014

Microsoft Fights to Protect Data Held on Servers in Ireland

San Francisco - The Electronic Frontier Foundation (EFF) has urged a federal court to block a U.S. search warrant ordering Microsoft to turn over a customer's emails held in an overseas server, arguing that the case has dangerous privacy implications for Internet users everywhere.

The case started in December of last year, when a magistrate judge in New York signed a search warrant seeking records and emails from a Microsoft account in connection with a criminal investigation. However, Microsoft determined that the emails the government sought were on a Microsoft server in Dublin, Ireland. Because a U.S. judge has no authority to issue warrants to search and seize property or data abroad, Microsoft refused to turn over the emails and asked the magistrate to quash the warrant. But the magistrate denied Microsoft's request, ruling there was no foreign search because the data would be reviewed by law enforcement agents in the U.S.

Microsoft appealed the decision. In an amicus brief in support of Microsoft, EFF argues the magistrate's rationale ignores the fact that copying the emails is a "seizure" that takes place in Ireland.

"The Fourth Amendment protects from unreasonable search and seizure. You can't ignore the 'seizure' part just because the property is digital and not physical," said EFF Staff Attorney Hanni Fakhoury. "Ignoring this basic point has dangerous implications – it could open the door to unfounded law enforcement access to and collection of data stored around the world."

The government has argued that allowing a U.S. judge to order the collection of data stored abroad is necessary, because international storage would make it easy for U.S. Internet companies to avoid complying with search warrants. But Microsoft asserts that the government's legal theory could hurt U.S. technology companies that are trying to do business internationally. Additionally, EFF argues in its amicus brief that the government's approach hurts Internet users globally, as it would allow the U.S. to obtain electronic records stored abroad without complying with mutual assistance treaty obligations or other nations' own laws.

"Microsoft is doing the right thing by pushing back here. It's great to see a tech giant fighting for its customers," said Fakhoury.

For the full brief in this case:
https://www.eff.org/document/eff-amicus-brief-support-microsoft

Contact:

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

June 10, 2014

Public Deserves to See Secret Law Written by Office of Legal Counsel

Washington, DC - The Electronic Frontier Foundation (EFF) today asked the Supreme Court of the United States to weigh in on a long-standing Freedom of Information Act (FOIA) lawsuit in which EFF sought to obtain a secret legal memo authorizing the FBI to obtain phone records without any legal process.

As part of the U.S. Department of Justice, the Office of Legal Counsel (OLC) issues opinions that provide the legal justification for a wide variety of executive branch activities, in ways that affect millions of Americans. The opinion sought by EFF appears to have authorized the federal government, specifically the FBI, to obtain call records without judicial approval and without citing an emergency to justify the data collection.

Some of the most controversial government practices of the past 15 years—such as torture and the targeted killing of Americans abroad—were based on OLC legal authorizations. If EFF's petition for a "writ of certiorari" is successful, the Supreme Court will have the opportunity to decide when OLC opinions should be released to the public.

"The public has a fundamental right to know how the federal government is interpreting surveillance and privacy laws," EFF Senior Counsel David Sobel said. "If the Office of Legal Counsel has interpreted away federal privacy protections in secret, the public absolutely needs access to that analysis. There is no way for the public to intelligently advocate for reforms when we're intentionally kept in the dark."

The existence of this opinion first came to light in a report issued by the Justice Department's Inspector General on the FBI's use of its surveillance authorities in national security investigations. The Inspector General's report indicated the OLC issued a determination that appeared to conflict with the Stored Communications Act, a federal privacy law that safeguards customer call records from disclosure to the government without valid legal process.

EFF submitted a FOIA request for more information. The Justice Department refused to comply and subsequently EFF filed a lawsuit in May 2011 to obtain the records. While the case was unsuccessful at the district and appeals court levels, EFF believes the issue is of such significance that it merits review by the highest court.

"OLC opinions have formed the legal basis for some incredibly controversial government actions," EFF Staff Attorney Mark Rumold said. "It can't be left to the executive branch's discretion to release these critically important opinions. We hope the Supreme Court will take the opportunity to clarify that this type of secret law has no place in a democratic society."

For the petition for writ of certiorari: https://www.eff.org/document/eff-v-doj-petition-writ-certiorari

For more on this case: https://www.eff.org/foia/foia-secret-surveillance-law-memo

Contacts:

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

David Sobel
   Senior Counsel
   Electronic Frontier Foundation
   sobel@eff.org

Related Issues:
June 6, 2014

EFF Told Court Yesterday Government Still Destroying Evidence Despite Court Order

Oakland, CA - A federal judge today ordered an emergency hearing today at 2 p.m. PT after EFF learned that the government is apparently still destroying evidence of NSA spying despite a temporary restraining order (TRO) issued by the court in March.

Yesterday afternoon, EFF filed an emergency motion with U.S. District Judge Jeffrey S. White, explaining that communications with government lawyers over the last week had revealed that the government has continued to destroy evidence relating to the mass interception of Internet communications it is conducting under Section 702 of the FISA Amendments Act. The judge responded less than two hours later, reiterating that his TRO was still in place and continues to prohibit the destruction of evidence collected under Section 702. Late Thursday evening, the government filed papers with the court, claiming that compliance with the preservation order that has been in effect since March "would cause severe operational consequences" for the NSA, "including the possible suspension of the Section 702" program.

"This TRO has been in place since March. Yet we are only hearing these excuses now," said EFF Legal Director Cindy Cohn. "Once again, the government has secretly and unilaterally reinterpreted its obligations about the evidence preservation orders, and determined that it need not comply with a federal court order, and now is asking for a blessing from the court after the fact. We are pleased that Judge White has called this emergency hearing to get to the bottom of this."

The government will appear by phone at the Oakland, California hearing.

WHAT:
Emergency Hearing in Jewel v. NSA

WHEN:
2 p.m.
Friday, June 6

WHERE:
U.S District Court
Northern District of California
Courtroom 5, Second Floor
1301 Clay Street
Oakland, CA

For the full order from Judge White:
https://www.eff.org/document/order-setting-hearing-0

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

June 6, 2014

Government Argues Court's Order Does Not Apply to Certain Categories of Surveillance

San Francisco - A federal judge asked for more briefing today after an emergency court hearing over destruction in a case challenging NSA spying from the Electronic Frontier Foundation (EFF).

Andrew Crocker, Rick Wiebe, and Cindy Cohn

Andrew Crocker, Rick Wiebe, and Cindy Cohn

"We are pleased the court is receptive to our arguments – that this is the information that court ordered the government to retain, and is an important element of our litigation," said EFF Legal Director Cindy Cohn. "It's unfortunate that the court's order today allows the government to continue destroying evidence that the government itself insists we need, but we are looking forward to giving the judge all the information he needs to come to a final decision."

U.S. District Judge Jeffrey S. White issued a temporary restraining order (TRO) blocking evidence destruction in March. But yesterday afternoon, EFF filed an emergency motion, explaining that communications with government lawyers over the last week had revealed that the government has continued to destroy evidence relating to the mass interception of Internet communications it is conducting under Section 702 of the FISA Amendments Act. Today, Judge White called an emergency hearing, where the government argued that preserving the surveillance data gathered under Section 702 would be gravely harmful to national security programs. While the TRO remains in effect, that Judge White ruled that the government nevertheless did not need to preserve data collected pursuant to Section 702 until the court makes a further ruling on the issue.

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. EFF also filed one of the first lawsuits against the surveillance program back in 2006, Hepting v. AT&T.

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

June 5, 2014

Judge Requires Explanation by Friday About Whether Government Is Still Destroying Evidence Despite Court Order

San Francisco - The Electronic Frontier Foundation (EFF) asked a judge today to schedule an emergency hearing, after learning that the government is apparently still destroying evidence of NSA spying despite a temporary restraining order (TRO) issued by the court in March. In an order issued in response this afternoon, U.S. District Judge Jeffrey S. White instructed the government not to destroy any more materials and file a brief responding to EFF's allegations by 12 p.m PT on Friday.

"In communications with the government this week, EFF was surprised to learn that the government has been continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the FISA Amendments Act even though the court explicitly ordered it to stop in March," said EFF Legal Director Cindy Cohn. "Specifically, the government is destroying content gathered through tapping into the fiberoptic cables of AT&T."

She added: "Once again, the government has apparently secretly and unilaterally reinterpreted its obligations about the evidence preservation orders, and has determined that it need not comply. Today marks a year to the day that Edward Snowden leaked documents confirming the NSA's massive spying, yet the government is still engaging in outlandish claims and gamesmanship – even destroying evidence – to block an adversarial court ruling on whether its mass spying is legal or constitutional."

EFF filed its Jewel v. NSA lawsuit in 2008. In recent weeks, declarations from the government in the Jewel case made it 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. In an emergency hearing last March over that evidence destruction, Judge White issued the current TRO, ordering the government to stop any further destruction of records or content until the matter could be sorted out.

"There can be no dispute that the government was aware of the broad scope of this TRO, and in his order this afternoon, Judge White confirmed that it reached materials gathered under Section 702," Cohn said. "We're asking Judge White to enforce the order and impose on the government whatever further measures are necessary to ensure that no further destruction of evidence occurs. It will be very interesting to see what the government says in its defense in its briefing tomorrow."

For EFF's full emergency application:
https://www.eff.org/document/plaintiffs-emergency-application-enforce-courts-tro

For the judge's order:
https://www.eff.org/document/order-re-evidence-preservation-0

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contacts:

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@eff.org

About EFF:

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. 

Related Issues:
June 2, 2014

Church Claims It Owns the Term 'Mormon'

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge to quickly resolve a dispute over the use of the term "Mormon" in an online dating site, arguing that extended litigation based on a frivolous claim could bury a small business in its infancy.

Intellectual Reserve, Inc., which manages intellectual property rights for The Church of Jesus Christ of the Latter-day Saints, has made numerous trademark claims against a website called "Mormon Match," which offers online dating services for members of the LDS church. Intellectual Reserve concedes that the term "Mormon" can be used to describe church members generally, but claims that its "family of marks" using "Mormon" (such as "Mormon Tabernacle Choir") gives it the power to silence any business that dares to use the term in commerce. In an amicus brief filed Friday, EFF argues that because "Mormon" is undisputedly a descriptive term, its use in the name of the website is fair and legal.

"The name of this service simply describes what it's doing – matching up Mormons," said EFF Intellectual Property Director Corynne McSherry. "Trademarks are supposed to be used to protect from unfair competition, not to stifle a small business or to control language."

Often, when websites or other projects get trademark complaints, the creators decide to change their content or services in order to avoid expensive litigation – even if they know they are in the right. Merely the threat of a trademark lawsuit, and the costs associated with it, is enough to chill many entrepreneurs, artists, and activists from innovative projects.

"This case can and should be dismissed now," said EFF Staff Attorney Vera Ranieri. "The specter of expensive litigation shouldn't be a tool used to coerce Internet entrepreneurs and other content creators into succumbing to meritless infringement claims."

For the full amicus brief:
https://www.eff.org/document/amicus-brief-21

Contacts:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Vera Ranieri
   Staff Attorney
   Electronic Frontier Foundation
   vera@eff.org

May 30, 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:
https://www.eff.org/document/plaintiffs-brief-re-governments-non-compliance-courts-evidence-preservation-orders

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contacts:

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@eff.org

Andrew Crocker
   Legal Fellow
   Electronic Frontier Foundation
   andrew@eff.org

May 29, 2014

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:
https://www.eff.org/foia/section-215-usa-patriot-act

Contacts:

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

Related Issues:
May 27, 2014

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:
https://www.eff.org/document/appeals-court-opinion

Contacts:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

May 27, 2014

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:
https://necessaryandproportionate.org/LegalAnalysis

For the principles:
Necessaryandproportionate.org/text

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.

Contact:

Katitza Rodriguez
   International Rights Director
   Electronic Frontier Foundation
   katitza@eff.org

Siobhan Sheerin
   Press Officer
   ARTICLE 19
   siobhan@article19.org

May 15, 2014

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":
https://www.eff.org/who-has-your-back-government-data-requests-2014

For the Silk analysis:
https://transparency-reports.silk.co/

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Correction: An earlier version of this report accidentally omitted Twitter from the list of companies that received six stars in last year's report.

May 1, 2014

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

Related Issues:

Contact:

Mark
Rumold
Senior Staff Attorney
April 11, 2014

Important Decision Impacts Constitutional Rights in the Internet Age

San Francisco - A federal appeals court overturned the conviction of Andrew "weev" Auernheimer, the computer researcher who was charged with violating the Computer Fraud and Abuse Act (CFAA) after he exposed a massive security flaw in AT&T's website.

Auernheimer was represented on appeal by the Electronic Frontier Foundation (EFF), Professor Orin Kerr of George Washington University, and attorneys Marcia Hofmann, and Tor Ekeland. In an opinion issued this morning by the U.S. Court of Appeals for the Third Circuit, Judge Michael Chagares wrote that the government should not have charged Auernheimer in New Jersey, which had no direct connection to AT&T or Auernheimer.

"We're thrilled that the Third Circuit reversed Mr. Auernheimer's conviction," EFF Staff Attorney Hanni Fakhoury said. "This prosecution presented real threats to security research. Hopefully this decision will reassure that community."

In 2010, Auernheimer's co-defendant, Daniel Spitler, discovered that AT&T had configured its servers to make the email addresses of iPad owners publicly available on the Internet. Spitler wrote a script and collected roughly 114,000 email addresses as a result of the security flaw. Auernheimer then distributed the list of email addresses to media organizations as proof of the vulnerability, ultimately forcing AT&T to acknowledge and fix the security problem.

Federal prosecutors charged Auernheimer and Spitler with identity theft and conspiracy to violate the CFAA in New Jersey federal court. Spitler accepted a plea deal, while Auernheimer unsuccessfully fought the charges in a jury trial. Auernheimer began serving a 41-month prison sentence in March 2013.

On appeal, Auernheimer's defense team argued that accessing a publicly available website does not constitute unauthorized access to a computer under the CFAA. They also argued that Auernheimer should not have been charged in New Jersey. At the time they were obtaining email addresses, Auernheimer was in Arkansas, Spitler was in California and AT&T's servers were in Georgia and Texas.

The court agreed with Auernheimer that charging the case in New Jersey was improper and reversed his conviction and ordered him released from prison. Although it did not directly address whether accessing information on a publicly available website violates the CFAA, the court suggested that there may have been no CFAA violation, since no code-based restrictions to access had been circumvented.

"Today's decision is important beyond weev's specific case," added Fakhoury. "The court made clear that the location of a criminal defendant remains an important constitutional limitation, even in today's Internet age."

For the opinion: https://www.eff.org/document/appellate-court-opinion

Contact:

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

April 11, 2014

Decision About “Innocence of Muslims” Video Could Be Disastrous for Free Speech

San Francisco - The Electronic Frontier Foundation (EFF) is urging a federal appeals court to reconsider its decision to order Google to take down the controversial "Innocence of Muslims" video while a copyright lawsuit—based on a claim that the Copyright Office itself has rejected—is pending. As EFF explains, the decision sets a dangerous precedent that could have disastrous consequences for free speech.

"Innocence of Muslims" sparked protests worldwide in the fall of 2012. For a time, its anti-Islamic content was even linked to the violent attack on an American diplomatic compound in Benghazi, Libya, although that was later refuted. An actress named Cindy Lee Garcia, after being tricked into appearing in the film for just five seconds, claimed she held a copyright in that performance. She sued Google for copyright infringement and asked the court to order Google to take the video offline. The district court refused, noting that it could not restrain speech massed on nothing more than a highly debatable copyright claim. On appeal, a three-judge panel of the United States Court of Appeals for the Ninth Circuit agreed that the copyright claim was not strong, but nonetheless ordered Google to take down all copies of the video. It even issued a gag order, preventing Google from talking about the controversial decision for a full week.

"This video is a matter of extreme public concern–the center of a roiling, global debate," EFF Intellectual Property Director Corynne McSherry said. "The injunction in place now means we can still talk about the video–but we can't see what we are actually talking about. While the injunction stretched the First Amendment beyond its intent, the gag order snapped it in half. It delayed the public and the press from discovering this unprecedented copyright decision, and prevented others from challenging the ruling."

In an amicus brief filed today, EFF argues that the full appeals court must reconsider the earlier decision in order to protect free speech in the debate over the film and also to safeguard the future of free expression online.

"This decision means that any number of creative contributors–from actors to makeup artists to set designers–could be entitled to royalties and even control over the distribution of works they were paid to contribute to," said EFF Staff Attorney Nate Cardozo. "Such a rule would stifle creative expression for big studios and amateur filmmakers alike. While we can understand Garcia's desire to distance herself from this film, copyright law is not designed to address the harm she suffered by suppressing the global debate on a matter of public concern."

The American Civil Liberties Union, Public Knowledge, the Center for Democracy and Technology, New Media Rights, the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries joined EFF in this brief.

For the full amicus brief:

https://www.eff.org/document/garcia-v-google-amicus

For more on Garcia v. Google:

https://www.eff.org/cases/garcia-v-google-inc

Contacts:

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Related Issues:
April 11, 2014

Shake Down of BitTorrent Users Abuses Justice System

Washington, DC - The Electronic Frontier Foundation (EFF) will ask a federal appeals court at a hearing on Monday, April 14, to prevent a notorious copyright troll from obtaining the identities of more than 1,000 Internet users.

Speaking on behalf of EFF, the American Civil Liberties Union, the ACLU of the Nation's Capital, Public Citizen and Public Knowledge, EFF Intellectual Property Director Corynne McSherry will urge the Court of Appeals for the District of Columbia to reverse a district court decision that allowed the plaintiff to seek identifying information for thousands of "John Does" without complying with basic procedural rules.

The coalition of public interest groups filed an amicus brief in May 2013 in support of several Internet service providers that are resisting subpoenas for user records. Representatives for those providers will offer the principal argument. However, the court took the unusual step of allowing amici to appear and argue as well.

AF Holdings, the plaintiff in the case, is seeking the identities of individuals that it claims may have illegally downloaded a copyrighted adult film. The case is one of hundreds being pursued around the country that follow the same pattern, which judges have described as "essentially an extortion scheme." A copyright troll looks for IP addresses that may have been used to download films (usually 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.

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. AF Holdings will have an opportunity to address the court but has so far not designated a representative for the hearing.

WHAT: Oral Argument in AF Holdings v. Does

WHO: Corynne McSherry, Intellectual Property Director, EFF

Benjamin Fox, Partner, Morrison & Foerster LLP, counsel for ISPs

WHERE: U.S. District Court of Appeals for the District of Columbia Circuit

625 Indiana Ave NW, Washington, DC 20004

WHEN: Monday, April 14, 2014 9:30 A.M. EST

For more information on our case, including the amicus brief: https://www.eff.org/cases/af-holdings-v-does

Contacts:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Related Issues:
April 9, 2014

New EFF Project Tackles Electronic Medical Records and Inherent Risks to Your Privacy

San Francisco - The digitization of medical records is being pitched to the public as a way to revolutionize healthcare. But rapid technological innovation and lagging privacy laws are leaving patients – and their most sensitive information – vulnerable to exposure and abuse, especially in this age of "big data." The Electronic Frontier Foundation (EFF) is launching a new medical privacy project today to identify the emerging issues and to give advocates the information they need to fight for stronger protections for patients.

"You assume that the decision about when to disclose medical data – like if you've had an abortion or have a serious heart condition – is yours and yours alone. But that information may be circulated in the process of paying for and providing treatment, or as part of mandated reporting," said EFF Senior Staff Attorney Lee Tien. "As the American medical establishment moves towards complete digitization of patient records, it's important to take a hard look on what that means for everyone's privacy, and what we should do about it."

EFF's project explores the unsettled areas of medical privacy law and technology, including a primer on how law enforcement might get access to your health information, or how the government might be able to collect it by claiming that it's necessary for national security. There's also a detailed discussion of public health reporting systems and how federal health laws give patients some rights but take others away. EFF will add more topics in the months to come.

"Genetic testing provides a striking example of some of the challenges we face with protecting medical data. Genetic data is uniquely identifiable and can be easily obtained from cells we shed every day," says EFF Activism Director Rainey Reitman. "But we have weak laws protecting this highly sensitive data."

EFF's work on the medical privacy project is supported by a grant from the Consumer Privacy Rights Fund of the Rose Foundation for Communities and the Environment.

For EFF's full medical privacy project:
https://www.eff.org/issues/medical-privacy

Contacts:

Lee Tien
   Senior Staff Attorney
   Electronic Frontier Foundation
   tien@eff.org

Rainey Reitman
   Activism Director
   Electronic Frontier Foundation
   rainey@eff.org

Related Issues:
April 2, 2014

Copyright Law Shouldn't Control How and Where Viewers Watch TV

San Francisco - The Electronic Frontier Foundation (EFF) today filed an amicus brief in American Broadcasting Companies v. Aereo, a case before the United States Supreme Court that could have a lasting impact on broadcast technology and viewers' ability to choose how and when they watch their favorite television programs. Public Knowledge, the Consumer Electronics Association, and Engine Advocacy all joined the brief, asking the Supreme Court to leave room for innovation in digital technology.

Through Aereo, consumers rent access to a unique TV antenna that is connected to the Internet, allowing them to stream free-to-air shows privately on their connected computers and devices. Perceiving a threat to the television industry, four broadcasting networks sued Aereo, claiming the company violated copyright law by making a "public performance" of the programs without a license. Both a federal trial court and an appellate court ruled in Aereo's favor; EFF is asking the Supreme Court to do the same.

"The networks would like the court to expand copyright law far beyond what Congress intended," EFF Staff Attorney Mitch Stoltz said. "The networks' interpretation of the law would strip away the commercial freedom that led to the home stereo, the VCR, all manner of personal audio and video technology and to Internet services of many kinds."

In the new brief, EFF argues that Aereo does not make "public performances," but rather provides a way for individual users to make "private, personal transmissions," which are not covered by U.S. copyright law. In constructing the law this way, Congress intended to leave room for new businesses outside of the media conglomerates to create new innovation in personal video technology.

"The stakes in this case are bigger than just the survival of one startup company," said Stoltz. "Broadcasters want the Supreme Court to give them control over any technology that touches a TV signal. But copyright was never intended to do that."

For the full Supreme Court brief:
https://www.eff.org/document/amicus-brief-20

Contact:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Related Issues:
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 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 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

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

Related Issues:
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

February 27, 2014

‘Abstract Ideas’ Patents Hurt Technology Industry

San Francisco - The Electronic Frontier Foundation (EFF) along with Professor Pamela Samuelson of the University of California, Berkeley, urged the U.S. Supreme Court today to clean up the legal mess that is software patent law, reining in overbroad patents that are impermissibly abstract.

In front of the court is Alice Corp. v. CLS Bank, a long running case about a computer system that helps with closing financial transactions by avoiding settlement risk. In its amicus brief filed today, EFF argues that allowing a patent on this system goes against previous Supreme Court rulings that ideas like these are "abstract" and aren't legally patentable.

"It wouldn't make sense to patent simple ideas like ways of running a business or prioritizing a to-do list," said EFF Senior Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "That's basically what's under consideration here, with the small addition of a step that essentially implements it on a computer. Of course, since basically everything we do today is on the computer, letting patents like this exist shuts down entire business models."

The data on the U.S. technology industry bear this out. Since software patents have boomed, we've seen no corresponding boom in software growth and innovation; to the contrary, that growth maintained the steady pace that existed long before the advent of software patents. Instead, along with software patents, we've seen the rise of patent trolls – companies that don't make or sell anything, but shake down true creators through the loopholes in the law.

"In this case, the Supreme Court has the opportunity to implement a sensible system, limiting these broad and vague claims that do nothing besides fuel lawsuits," said Samuels. "A clear ruling here would limit one of the patent troll's favorite weapons—broad and vague software patents—and keep our innovation economy safe."

For the full amicus brief:
https://www.eff.org/document/amicus-brief-supreme-court-alice-v-cls-bank

For more on abstract software patents:
https://www.eff.org/cases/abstract-patent-litigation

Contact:

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

Related Issues:
February 27, 2014

Liberation Music Will Fix Its Copyright Policies and Pay Compensation

San Francisco - Prof. Lawrence Lessig has settled his lawsuit against an Australian record label over the use of clips of a popular song by the band Phoenix in a lecture that was later posted online. Liberation Music, which represents Phoenix in New Zealand, claimed the clips infringed copyright, demanded YouTube take down the lecture, and then threatened to sue Lessig. Represented by the Electronic Frontier Foundation (EFF) and Jones Day, Lessig fought back, asserting his fair use rights in court.

"Too often, copyright is used as an excuse to silence legitimate speech," said Lessig, who serves as the Roy L. Furman Professor of Law and Leadership at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University. "I've been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences."

The settlement requires Liberation Music to pay Lessig for the harm it caused. The amount is confidential under the terms of the settlement, but it will be dedicated to supporting EFF's work on open access, a cause of special importance to Lessig's friend, Aaron Swartz, a technologist and activist who took his own life in early 2013. The parties also worked together to improve Liberation Music's methodology for compliance with the requirements of the DMCA in the United States. Going forward, Liberation Music will adopt new policies that respect fair use.

Neither party concedes the claims or defenses of the other. Liberation Music included this statement in the settlement agreement:

"Liberation Music is pleased to amicably resolve its dispute with Professor Lessig. Liberation Music agrees that Professor Lessig's use of the Phoenix song 'Lisztomania' was both fair use under US law and fair dealing under Australian law. Liberation Music will amend its copyright and YouTube policy to ensure that mistakes like this will not happen again. Liberation Music is committed to a new copyright policy that protects its valid copyright interests and respects fair use and dealing."

A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.

As a condition of the settlement, Liberation Music submitted a declaration explaining its takedown procedures. Liberation Music had allowed a single employee to use YouTube's automatic Content ID system to initiate the takedown process and then, when Lessig challenged the takedown, threaten a lawsuit. The employee, who did not have a legal background, did not actually review Lessig's video before issuing a threat of a lawsuit.

Liberation Music's new policy will still rely on YouTube's system, but it will ensure that no takedown notice is issued without human review, including fair use considerations. Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright.

"This is the policy Liberation Music should have had from the beginning," EFF Intellectual Property Director Corynne McSherry said. "Too many content owners are issuing takedowns and manipulating content filters without respect for the rights of users. This fight may be over, but the battle continues until every content owner embraces best practices that protect fair use."

For more on this case:
https://www.eff.org/cases/lawrence-lessig-v-liberation-music

About Prof. Lessig:

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including The USA is Lesterland, Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.

Contact:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

February 18, 2014

Senior Staff Technologist Seth Schoen Will Speak at Wednesday Conference

Washington, D.C. - Electronic Frontier Foundation (EFF) Senior Staff Technologist Seth Schoen will warn attendees at a Federal Trade Commission (FTC) conference Wednesday that most people don't realize the current extent of mobile device tracking and just how sensitive cell phone location data can be. The conference is set for 10 a.m. on Wednesday, February 17 at the FTC Conference Center.

"The ability for marketers and others to recognize where a particular device is located is actually an unintended consequence of technologies like wifi," said Schoen. "It's not a designed-in feature – it's something that people are taking advantage of, and it should be viewed as a security problem and fixed."

WHAT:
FTC Spring Privacy Series: Mobile Device Tracking

WHEN:
Wednesday, February 17
10 a.m.

WHERE:
FTC Conference Center
601 New Jersey Avenue, NW
Washington, D.C. 20001

WHO:
Senior Staff Technologist Seth Schoen
Electronic Frontier Foundation

For the full FTC announcement:
http://www.ftc.gov/news-events/events-calendar/2014/02/spring-privacy-series-mobile-device-tracking

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Related Issues:
February 18, 2014

Months of Electronic Espionage Put American Citizen and Family at Risk

Washington, D.C. - An American citizen living in Maryland sued the Ethiopian government today for infecting his computer with secret spyware, wiretapping his private Skype calls, and monitoring his entire family's every use of the computer for a period of months. The Electronic Frontier Foundation (EFF) is representing the plaintiff in this case, who has asked the court to allow him to use the pseudonym Mr. Kidane – which he uses within the Ethiopian community – in order to protect the safety and wellbeing of his family both in the United States and in Ethiopia.

"We have clear evidence of a foreign government secretly infiltrating an American's computer in America, listening to his calls, and obtaining access to a wide swath of his private life," said EFF Staff Attorney Nate Cardozo. "The current Ethiopian government has a well-documented history of human rights violations against anyone it sees as political opponents. Here, it wiretapped a United States citizen on United States soil in an apparent attempt to obtain information about members of the Ethiopian diaspora who have been critical of their former government. U.S. laws protect Americans from this type of unauthorized electronic spying, regardless of who is responsible."

A forensic examination of Mr. Kidane's computer showed that the device had been infected when he opened a Microsoft Word document that contained hidden malware. The document had been an attachment to an email message sent by agents of the Ethiopian government and forwarded to Mr. Kidane. The spyware contained in the attachment was a program called FinSpy, a suite of surveillance software marketed exclusively to governments by the Gamma Group of Companies. In the several months FinSpy was on Mr. Kidane's computer, it recorded a vast array of activities conducted by users of the machine. Traces of the spyware inadvertently left on his computer show that information – including recordings of dozens of Skype phone calls – was surreptitiously sent to a secret control server located in Ethiopia and controlled by the Ethiopian government.

The infection appears to be part of a systematic program by the Ethiopian government to spy on perceived political opponents in the Ethiopian diaspora around the world. Reports from human rights agencies and news outlets have detailed Ethiopia's campaign of international espionage, aimed at jailing opposition and undermining dissent. But Ethiopia is not alone. CitizenLab – a group of researchers based at the University of Toronto, Canada – has found evidence that governments around the world use FinSpy and other technologies to spy on human rights and democracy advocates across the globe.

"The problem of governments violating the privacy of their political opponents through digital surveillance is not isolated – it's already big and growing bigger," said EFF Legal Director Cindy Cohn. "Yet despite the international intrigue and genuine danger involved in this lawsuit, at bottom it's a straightforward case. An American citizen was wiretapped at his home in Maryland, and he's asking for his day in court under longstanding American laws."

In the complaint filed in U.S. District Court in Washington, D.C., today, Mr. Kidane asks for a jury trial as well as damages for violations of the U.S. Wiretap Act and state privacy law. The Ethiopian Embassy in Washington received a courtesy copy of the lawsuit, and the District Court will formally serve the Ethiopian Foreign Ministry in Addis Ababa with copies of the papers in both English and Amharic.

Richard M. Martinez, Mahesha P. Subbaraman, and Samuel L. Walling of Robins, Kaplan, Miller & Ciresi L.L.P. are assisting EFF as co-counsel on this case.

For the full complaint in Kidane v. Ethiopia:
https://www.eff.org/document/complaint-32

For more on this case:
https://www.eff.org/cases/kidane-v-ethiopia

Contacts:

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@eff.org

January 27, 2014

Use of Campaign Photo on Political Blog Is Clearly 'Fair Use'

San Francisco - The Electronic Frontier Foundation (EFF) is urging a federal court to dismiss a politically motivated copyright lawsuit.

The case started in April, when California Republican Party Vice Chairman Harmeet K. Dhillon sued an anonymous blogger over the use of a five-year-old campaign photo in a critical post on "The Munger Games" website – a site dedicated to criticism of donor and current chairman of the Santa Clara County Republican Party of Silicon Valley, Charles Munger, Jr. However, the use of the photo is clearly allowed under the "fair use doctrine," which ensures that copyrighted works can be used by others for purposes including criticism and commentary.

"The fair use doctrine protects what Jon Stewart and Steven Colbert do with copyrighted material every night – they use it to illustrate, explain, and amuse. Fair use is a basic building block for free speech, and the Munger Games blogger has as much right to fair use as a TV star," said EFF Intellectual Property Director Corynne McSherry. "This lawsuit is not about copyright infringement but simply a bald attempt to intimidate a political blogger, and the court should shut it down now."

In its amicus brief filed Friday, EFF asked the judge to end this case quickly and decisively, as allowing the lawsuit to proceed would discourage other bloggers from exercising their First Amendment rights to criticize political figures.

"Protection for political criticism and commentary lies at the heart of the First Amendment," said EFF Senior Staff Attorney Matt Zimmerman. "Courts should be highly skeptical of attempts to punish speakers engaged in this kind of political speech. While the blogger in this case is fighting back, copyright lawsuits are expensive and others may be intimidated from speaking in the future. EFF urges the court to dismiss this meritless suit as soon as possible."

For the full amicus brief in Dhillon v. Doe:

https://www.eff.org/document/amicus-brief-19

Contacts:

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

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Related Issues:
January 13, 2014

Latest Filing in Jewel v. NSA Demands Documents Government Is Trying to Conceal

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal court on Friday to order the Department of Justice (DOJ) to release more thorough information about the dragnet electronic surveillance being conducted by the National Security Agency (NSA). The filing in EFF's long-standing case, Jewel v. NSA, also argues that the DOJ must stop pretending that information revealed and publicly acknowledged about government surveillance over the last seven months is still secret.

"The government has now publicly admitted much about its mass spying, but its filings before the court still try to claim broad secrecy about some of those same admissions," EFF Legal Director Cindy Cohn said. "It's long past time for the Department of Justice to stop using overblown secrecy claims to try to prevent an open, adversarial court from deciding whether the NSA's spying is constitutional."

Since the Jewel case was first filed in 2008, the government has used claims of state secrets to fight court review. Last year, documents revealed by former NSA contractor Edward Snowden confirmed many of the case's allegations. As a result of the Snowden disclosures, Judge Jeffrey White of the U.S. District Court for the Northern District of California ordered the government to review all of its filings and release everything that was no longer secret. The court also ordered the government to explain the effects of the disclosures on the case. The DOJ filed its response on December 20, releasing eight, still-heavily redacted, declarations. The government also submitted new declarations, but those declarations largely ignored, and failed to explain the impact of, the flood of new information concerning the NSA's surveillance operations revealed through the press, congressional hearings, or the administration's website icontherecord.tumblr.com.

In our response, EFF argues that the DOJ did not comply with the judge's order and that the agency's submissions fell far short of an accurate and comprehensive presentation of the facts—especially with regard to the "upstream" program where the NSA accesses communications as they flow across the Internet backbone, the participation of AT&T in NSA surveillance, and the lack of demonstrated effectiveness of the bulk collection programs.

"The court ordered the government to review for release all previously secret filings in this case, yet there are still secret documents in the record," EFF Staff Attorney Mark Rumold said. "We at least deserve an explanation for why we can't have access to those documents. Our plaintiffs, as well as the general public, have a right to know what the government has been telling the court in secret."

For the filing: https://www.eff.org/document/plaintiffs-response-defendants-public-declarations

For the accompanying declaration: https://www.eff.org/document/rumold-declaration-all-exhibits-iso-plaintiffs-response-defendants-public-declarations

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

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

Related Issues:
December 12, 2013

People+ Can Continue to Use CC Licensed Material And CrunchBase Improves Its Legal Terms

San Francisco - Mobile app startup People+ and free technology-industry database CrunchBase have settled their dispute over data collected under the Creative Commons Attribution License, allowing both companies to continue their work.

The Electronic Frontier Foundation (EFF) represents People+, a company making apps for iOS and Google Glass. In its iOS app, People+ used materials from the free CrunchBase database, which includes information on technology companies, people, and investors. The CrunchBase database was licensed under a Creative Commons Attribution License, allowing anyone to use the data as long as the author receives credit. However, CrunchBase also claimed the right to shut down some uses of their materials – a position at odds with the Creative Commons license – and CrunchBase demanded that People+ stop using the data.

Fortunately, the norms and values of the open content community were a roadmap to resolving the argument. After discussions among CrunchBase, People+, and EFF, People+ will continue to use the material it has gathered under the Creative Commons Attribution License. Going forward, CrunchBase has revised its terms of service and now licenses its content under the Creative Commons Attribution-NonCommercial license, which will require a separate license for commercial uses.

"Offering content under the most permissive CC license while claiming the right to shut down uses they didn't like was a bit misleading," said EFF Staff Attorney Mitch Stoltz. "CrunchBase's new terms of service are clearer and more in line with the best practices of the open content community. The new terms should allow developers to re-use and build on the CrunchBase dataset with greater confidence."

"We are thrilled with the outcome and are looking forward to continue growing the app and the company far beyond this controversy," said Peter Berger, People+ co-founder and CEO.

Creative Commons is a suite of standardized licenses for creative work, providing a simple way for authors and artists to keep "some rights reserved" – like the right to receive credit and the right to prevent commercial uses – while allowing their work to spread freely on the Internet and be re-used by others without the threat of legal trouble.

"We are grateful to the Electronic Frontier Foundation for playing an instrumental role in updating the CrunchBase Terms of Service," said CrunchBase President Matt Kaufman. "At their suggestion, we adopted Creative Commons 4.0 and open content best practices. These updates provide more clarity to our community and provide a stronger foundation from which to build and extend the CrunchBase dataset."

"We are very pleased we could work with People+ and CrunchBase to resolve this issue," said EFF Senior Staff Attorney Kurt Opsahl. "Creative Commons licensing is a mainstay of creativity and collaboration in the digital age, and having the system work smoothly is to everyone's benefit."

Contacts:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Kurt Opsahl
   Senior Staff Attorney
   Electronic Frontier Foundation
   kurt@eff.org

November 26, 2013

Petition Urges Support for 13 International “Necessary and Proportionate” Principles

San Francisco - An international coalition of human rights and privacy organizations today launched an action center to oppose mass surveillance on the global stage: necessaryandproportionate.org/take-action. The new petition site went live just as the United Nations voted on a resolution to recognize the need for the international community to come to terms with new digital surveillance techniques.

The Electronic Frontier Foundation (EFF), along with Access and Privacy International, took a leadership role in developing the campaign. The new action center allows individuals from around the world to sign their names to a petition in support of the "International Principles on the Application of Human Rights to Communications Surveillance." Also known as the "Necessary and Proportionate Principles," the document outlines 13 policies that governments must follow to protect human rights in an age of digital surveillance—including acknowledgement that communications surveillance threatens free speech and privacy and should only be carried out in exceptional cases and under the rule of law.

Once the signatures are collected, the organizations will deliver the petition to the UN, world leaders and global policymakers. Over 300 organizations, plus many individual experts, have already signed the petition.

"Surveillance can and does threaten human rights, " EFF International Rights Director Katitza Rodriguez said. "Even laws intended to protect national security or combat crime will inevitably lead to abuse if left unchecked and kept secret. The Necessary and Proportionate Principles set the groundwork for applying human rights values to digital surveillance techniques through transparency, rigorous oversight and privacy protections that transcend borders."

Today, the UN Third Committee unanimously adopted Resolution A/C.3/68/L.45, "The Right to Privacy in the Digital Age." Sponsored by 47 nations, the non-binding resolution recognizes the importance of privacy and free expression and how these core principles of democracy may be threatened when governments exploit new communications technologies.

"While not as strong as the original draft resolution, the United Nations resolution is a meaningful and very positive step for the privacy rights of individuals, no matter what country they call home," Rodriguez said. "We will be watching to see if countries such as China, Russia or even the US use the resolution to legitimize their mass surveillance programs. That is why it's important for nations to go further and comply with the Necessary and Proportionate principles."

The organizations behind the Action Center include Access, Chaos Computer Club, Center for Internet & Society-India, Center for Technology and Society at Fundação Getulio Vargas, Digitale Gesellschaft, Digital Courage, EFF, OpenMedia.ca, Open Rights Group, Fundacion Karisma, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, SHARE Foundation, and Privacy International.

EFF's web development team designed the action center using the same activism platform the organization has successfully deployed in campaigns on the state and federal level in the US, this time adapting it to the scale of an international movement.

For more information on the petition and principles, read Rodriguez's blog post.

Contact:

Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation
katitza (at) eff.org

November 25, 2013

DC Appeals Court to Hear FOIA Lawsuit Against the Department of Justice

Washington, DC - Lawyers from the Electronic Frontier Foundation (EFF) will appear before the US Court of Appeals for the District of Columbia Circuit on Tuesday morning to argue for the release of a secret legal opinion on the federal government’s surveillance authority. For nearly three years, EFF has sought, under the Freedom of Information Act (FOIA), the disclosure of a document produced by the Office of Legal Counsel (OLC) that the FBI claims provides it with the authority to obtain private call-detail records in "certain circumstances," without any legal process or a qualifying emergency.

Who: EFF Staff Attorney Mark Rumold, who will be delivering the oral argument, and EFF Senior Counsel David Sobel

What: Oral argument in Electronic Frontier Foundation v. US Department of Justice (Case Number 12-5363)

When: 9:30 am (EST), Tuesday, Nov. 26, 2013

Where: Barrett Prettyman US Courthouse
333 Constitution Ave., NW Washington, DC 20001.
US Court of Appeals Courtroom - Judges Srinivasan, Edwards, & Sentelle

Media Availability: EFF attorneys will be available for comment immediately after the hearing at the courthouse.

In January 2010, the US Department of Justice's Office of the Inspector General released a report on the FBI's use of "exigent letters and other informal requests" to obtain telephone records from phone companies. The report described an OLC opinion that determined the federal government could obtain call records without legal process and without citing an emergency situation to justify the data collection. The OLC's determination appears to directly conflict with the Stored Communications Act, a federal privacy law that safeguards customer call records from disclosure to the government without valid legal process.

EFF submitted a FOIA request for the documents in February 2011, which the DOJ rejected. EFF filed its lawsuit in DC in May 2011 and appealed when the district court sided with government.

"The public has a fundamental right to know how the federal government is interpreting federal surveillance and privacy laws," Staff Attorney Mark Rumold said. "These interpretations affect wide swaths of society—the public, communications providers, and federal agencies—and the government cannot be allowed to shield its interpretations of law from public scrutiny. Secret surveillance law simply has no place in a democratic society."

Contacts:

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

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

November 20, 2013

EFF: Appeals Court Must Uphold Immunity for Websites That Host Third-Party Content

Cincinatti, Ohio - The Electronic Frontier Foundation (EFF) and a coalition of free speech advocates filed an amicus brief supporting thedirty.com's appeal of a defamation ruling that contradicts protections for website operators contained in Section 230 of the Communications Decency Act (CDA). In the brief, filed in the US Court of Appeals for the Sixth Circuit on Tuesday, the coalition argues that websites—even those that host offensive gossip—cannot be held liable for information posted by third parties.

The case centers around a 2009 message that a visitor posted to thedirty.com alleging that a teacher and a cheerleader for the Cincinnati Bengals had "slept with every" player on the football team. The subject of the post, Sarah Jones, then sued the site's operator, Dirty World LLC, and its editor and publisher, Nik Richie. A district court denied thedirty.com's claim of immunity under the CDA on the basis that the site "encouraged" defamatory content from third parties. A jury subsequently awarded Jones $338,000.

The ruling, if upheld, would have serious ramifications for free speech on the Internet. Since the passage of the CDA in 1996, courts have consistently held that website operators may be held responsible for unlawful material posted by users only if those operators directly solicited or induced the content. In this case, the district court denied immunity to the website based on other factors such as the website's name and cultivation of a negative atmosphere. The court's holding could open the door to lawsuits against a wide array of websites that host critical speech, including sites that display consumer reviews or reports of malfeasance.

"In order for speech to be protected online, the platforms that carry speech need to be strongly and unquestionably protected," EFF Senior Staff Attorney Matt Zimmerman said. "Website operators should not and cannot lose legal immunity for being offensive. They can only be held liable if they engaged in actionable behavior themselves. Here, that did not happen."

In addition to EFF, four groups joined the friend-of-the-court brief: ACLU of Kentucky, Center for Democracy & Technology, Digital Media Law Project and Public Participation Project. Wendy Seltzer and Adam Holland of the Berkman Center for Internet & Society at Harvard University and the Chilling Effects Clearinghouse also signed onto the brief.

"Section 230 gives website operators the certainty that they can offer platforms for user speech without the risk of spending every day litigating over comment sections," ACLU Staff Attorney Lee Rowland said. "The trial court's incorrect decision risks eroding that certainty."

For the full amicus brief:
https://www.eff.org/document/amicus-brief-sarah-jones-v-dirty-world

Contacts:

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

November 19, 2013

Inventors Listed on Nearly 200 Patents Call on Congress to Pass Legislation to Fix the Patent Troll Problem

Update: The initial letter incorrectly listed Dan Lang of Cisco as a signatory. Lang did not sign on. The initial letter has also been updated to include Pokeware founder Maryse Thomas.

San Francisco - Fifty inventors, technologists and entrepreneurs joined Engine Advocacy and the Electronic Frontier Foundation (EFF) today in requesting that Congress immediately pass meaningful patent reform legislation to curb the growing patent troll problem.

The signatories are collectively listed as inventors on nearly 200 patents, many of which cover software inventions. They expressed support for patent reform. Congress is currently pursuing several approaches that have the potential to curb the chilling effect on innovation posed by trolls and improve patent quality.

"Broad, vague patents covering software-type inventions—some of which we ourselves are listed as inventors on—are a malfunctioning component of America's inventive machinery," the inventors write. "This is particularly the case when those patents end up in the hands of non-practicing patent trolls." The inventors believe that "software patents are doing more harm than good," and they urge Congress to pass legislation that would curb patent troll abuses, which pose an immediate threat to innovation and the promise of technology.

"It's time to force these trolls to take responsibility for the damage they cause with their dangerous claims," said inventor Derek Parham, who helped organize the letter. "We need legislation that will put a stop to the patent troll business model once and for all."

In addition to Parham, many prominent engineers and entrepreneurs signed the letter, including Twitter co-founder Evan Williams; Facebook co-founder Dustin Moskovitz; former Principal Engineer at Qualcomm Ranganathan Krishnan; and Quantcast's co-founder Paul Sutter.

"The time for meaningful reform is now," said Julie Samuels, EFF Senior Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents. "We hope Congress will hear these engineers and inventors and so many others and pass legislation that ends the patent troll problem once and for all."

For the full open letter: https://www.eff.org/document/inventorslettersupportpatentreform

Contacts:

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

Eva Arevuo
   Engine
   eva@engine.is

November 11, 2013

NY Attorney General Subpoena Amounts to Unlawful “Fishing Expedition”

Albany, NY - The Electronic Frontier Foundation (EFF) and the Center for Democracy & Technology (CDT) have filed a friend-of-the-court brief supporting Airbnb's petition to set aside a sweeping New York State Attorney General subpoena that demands information about virtually all Airbnb users who make real estate available for rent in the state. In the brief filed Friday, EFF and CDT highlight both the overreaching nature of the subpoena as well as the critical need for courts to carefully review government efforts to indiscriminately sweep up information about large numbers of Internet users.

In October, NY State Attorney General Eric Schneiderman issued a sweeping subpoena seeking identification, financial, and other information on effectively all New York Airbnb "Hosts," those users offering living space for rent. The attorney general explained in later legal filings that he was seeking such information because he believed that some of Airbnb's Hosts had violated state occupancy and tax laws. However, the subpoena sought information about all Hosts that offered accommodations in New York from 2010 to the present, making no effort to exclude those users who plainly fell outside the laws at issue.

"Indiscriminate subpoenas that seek the identity and other personal information of thousands of Internet users without specific justification are improper and should be quashed," EFF Senior Staff Attorney Matt Zimmerman said. "It is not enough for the state to speculate that some Airbnb users might have broken some law at some unknown point. An online service's users deserve to be protected from fishing expeditions like this one."

In the brief, EFF and CDT discuss how broad subpoenas to Internet intermediaries such as Airbnb are particularly concerning as users whose information is sought ordinarily have little practical ability to challenge such subpoenas, even if they are unlawful. They further argue that, while Airbnb's efforts to block the subpoena are commendable in this instance, users should not have to rely on companies to defend against government overreach and courts should themselves play an active, skeptical role holding the government to task.

"Just because the technology collects the data and makes it easy to disclose doesn't mean the government is entitled to it all," said Gregory T. Nojeim, director of CDT's Project on Freedom, Security and Technology. "Whether it's a secret application from the NSA or a subpoena from a state official, courts need to reject or substantially narrow bulk data demands from government officials."

For more information, including original case documents, see https://www.eff.org/cases/airbnb-inc-v-eric-schneiderman

Contacts:

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

About EFF:

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.

https://www.eff.org

About Center for Democracy and Technology:

The Center for Democracy & Technology is a non-profit public interest organization working to keep the Internet open, innovative, and free. With expertise in law, technology, and policy, CDT seeks practical solutions to enhance free expression and privacy in communications technologies. CDT is dedicated to building consensus among all parties interested in the future of the Internet and other new communications media.

http://www.cdt.org

Related Issues:
November 6, 2013

Advocacy Organizations Seek Immediate Court Ruling on the Legality of the NSA’s Mass Collection of Telephone Records

San Francisco - The Electronic Frontier Foundation (EFF) has provided a federal judge with testimony from 22 separate advocacy organizations detailing how the National Security Agency's (NSA) mass telephone records collection program has impeded the groups' work, discouraged their members and reduced the numbers of people seeking their help via hotlines. The declarations accompanied a motion for partial summary judgment filed late Wednesday, in which EFF asks the court to declare the surveillance illegal on two levels—the law does not authorize the program, and the Constitution forbids it.

In First Unitarian Church of Los Angeles v. NSA, EFF represents a diverse array of environmentalists, gun-rights activists, religious groups, human-rights workers, drug-policy advocates and others that share one major commonality: they each depend on the First Amendment's guarantee of free association. EFF argues that if the government vacuums up the records of every phone call—who made the call, who received the call, when and how long the parties spoke—then people will be afraid to join or engage with organizations that may have dissenting views on political issues of the day. The US government acknowledged the existence of the telephone records collection program this summer, after whistleblower Edward Snowden leaked a copy of a Foreign Intelligence Surveillance Court order authorizing the mass collection of Verizon telephone records.

"The plaintiffs, like countless other associations across the country, have suffered real and concrete harm because they have lost the ability to assure their constituents that the fact of their telephone communications between them will be kept confidential from the federal government," EFF Senior Staff Attorney David Greene said. "This has caused constituents to reduce their calling. This is exactly the type of chilling effect on the freedom of association that the First Amendment forbids."

In Wednesday's motion, EFF asks the US District Court for the Northern District of California to review the undisputed evidence at hand and rule that the NSA's "Associational Tracking Program" is not only unconstitutional, but not authorized under Section 215 of the USA PATRIOT ACT, the law the government has so far used to justify its surveillance.

The statute authorizes the government to collect information only if the information "is relevant to an authorized investigation." Because the government collects the records of every telephone call made to, from and within the United States, the vast majority of the records it collects are plainly irrelevant.

"Section 215 is a simple statute designed to give the FBI something like the subpoena power available in criminal investigations," attorney Thomas Moore, an EFF special counsel, said. "It was not intended to authorize the dragnet surveillance the NSA has undertaken. A government of the people, by the people, and for the people should not be spying on the people."

The motion could be argued as early as February 2014.

For the motion for partial summary judgment:

https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment-0

For the declarations:

https://www.eff.org/document/all-plaintiffs-declarations

Contact:

David Greene
Senior Staff Attorney
Electronic Frontier Foundation
davidg@eff.org

Selected declaration excerpts:

Rev. Rick Hoyt, First Unitarian Church of Los Angeles:

"The threat of exposure has caused potential visitors to stay away, and members to withdraw from the community, resulting in the church losing its voice and damaging our faith and our organization. Even more damaging is the effect on our neighbors, many of whom depend on the church for basic necessities such as our weekly food distribution, and life-enhancing programs such as exercise classes, and math tutoring for children. Our neighbors now fear that a simple contact with the church inquiring about a church program will bring scrutiny upon other aspects of their lives, or bring their persons to the attention of a government that they may have reason to fear."

Gene Hoffman, Jr., CalGuns Foundations, Inc:

"Many gun owners are distrustful of government or of having any record of their status as gun owners. At least one of our members is only known to us by his online alias and he would only directly contact us via telephone from a blocked number. He has not phoned since the disclosures that lead to this action.

"Many of our constituents have expressed concern about the confidentiality of the fact of their telephone communications with us. Those who do call now leave fewer details in their voicemails of the concern or issue they are calling about, forcing staff and volunteers to make additional contacts to the caller, or more quickly refer the caller to one of our outside attorneys. This creates more expense than if a non-attorney volunteer could have answered a question."

Dinah PoKempner, Human Rights Watch:

"We have experienced an increase in questions from our researchers, other staff, external partners and potential associates expressing concern about the confidentiality of the fact of their communications with HRW itself and among our staff and associates. While it is difficult to get precise information about communications that did not occur, based on the concerns raised by others, I believe that some individuals may have refrained from reporting human rights abuses to us and some partners may have refrained from contacting us due to their concerns about security and confidentiality."

Jennifer Nimer, Council on American-Islamic Relations-Ohio (CAIR-Ohio)

"Because many of the persons CAIR-OHIO represents are subject to tangible manifestations of federal government scrutiny, discretion and confidentiality in their communications and associations with us is of paramount importance to such persons. Knowing that the government is certainly logging communications such persons may have with CAIR-OHIO deters these persons form seeking our assistance.

"By virtue of this 'guilt by association' form of analysis, large swaths of the Ohio Muslim community may be subject to government scrutiny, simply by virtue of having contacted CAIR-OHIO and because of CAIR-OHIO's advocacy efforts on behalf of those wrongly accused. That is, is a CAIR—OHIO client accused or suspected by government of wrongdoing contacts us, all those who contact CAIR-OHIO – including our constituents and prospective clients – are accordingly put at risk of government scrutiny, solely through their shared association with CAIR-OHIO.

"When the very act of communicating by phone with those we aim to serve puts our constituents at risk for further government scrutiny, our organizational mission is essentially undermined."

Heidi Boghosian, National Lawyers Guild:

"Revelations of NSA surveillance in the press has caused NLG members working on litigation and advocacy to restrict discussion of legal strategy, case updates and confidential information to in-person meetings or to written correspondence sent by mail. Practical restraints on the frequency of these meetings results-in less robust information to pass between attorneys and has potentially hindered Guild members from providing as vigorous a legal representation as would have otherwise been possible with secure electronic communication channels."

Dale Gieringer, California Chapter of National Organization for the Reform of Marijuana Laws (NORML):

"California NORML experienced an abrupt drop in the number of hotline calls we received after revelation of NSA's phone surveillance program in late June. Prior to then, we received an average of about 15-20 calls daily on our hotline; afterwards, calls dropped to 5 -10 per day. This data supports our belief that the NSA program had a chilling effect on our constituents' willingness to communicate with us. Moreover, several of our members have expressed similar concerns in this regard."

Rabbi Arthur Waskow, The Shalom Center:

"I had trouble sleeping, delayed some essays and blogs I had been considering, and worried whether my actions might make trouble for nonpolitical relatives. I certainly felt a chill fall across my work of peaceable assembly, association, petition, and the free exercise of my religious convictions. Since as the Rabbinic Director of The Shalom Center I am the chief spokesperson for its religious outlook and religious work, this chilling effect has slowed down, inhibited, and distorted the expression of our religious concerns."

Berin Szoka, TechFreedom:

"For some policymakers, a change in their policy positions attributable to TechFreedom's advocacy may imply, accurately or not, an association or relationship that the policymaker might otherwise be unwilling to publicly acknowledge. This inhibition, in turn, hinders TechFreedom's ability to advocate effectively for its ideas.

"Similarly, our communications with journalists and foreign nationals is limited by the risk of disclosure. Knowing that the government will retain a record of all our communications, and the inevitable possibility of disclosure, will reduce the likelihood of such individuals working with TechFreedom on important Internet freedom issues, which are inherently trans-national and often require collaboration with foreign civil society groups and policymakers."

Dr. Deborah C. Peel, Patient Privacy Rights:

"The Associational Tracking Program activities have harmed PPR because we have experienced a decrease in communications from whistleblowers, members and users who would have requested that their communications with Plaintiff remain secret.

"PPR experienced a decrease in calls to our office phone line during the summer. For example, prior to the revelations of NSA tracking, we received on average 40 calls per month. After the NSA revelations became public, we received on average only 20 calls per month."

Tracy Rosenberg, Media Alliance:

"Several organizational members have asked to have their membership terminated and their data expunged from our database after purchasing products or services (and purchasing memberships for the purpose of receiving discounted prices on those products or services) in the wake of recent publicity about the extent of telephone metadata surveillance. Media Alliance has experienced a significant increase in the number of individuals expressing concern about the privacy of their inquiries and transactions with our organization, more than a doubling from any previous year. I have been in this position since 2007 and the increase is unprecedented. Moreover, we have had a large number of individuals go beyond expressing concern to request the end of their memberships."

Related Issues:
November 6, 2013

Julie Samuels to Press for Relief for Patent Troll Victims

Washington, DC - Electronic Frontier Foundation (EFF) attorney Julie Samuels will testify on how patent trolls harm start-ups and consumers through deceptive demand letters and legal threats at a US Senate Committee on Commerce, Science, and Transportation hearing on Thursday, Nov. 7.

Samuels, who is the Mark Cuban Chair to Eliminate Stupid Patents, will address how patent trolls' tactics amount to a shakedown racket, causing billions of dollars of economic damage each year. The trolls, also known as "patent assertion entities," neither make nor sell anything, but threaten to sue unsuspecting businesses with vague and dubious patent claims. Samuels will argue that Congress should enact statutory protections for consumers who find themselves facing patent troll threats by regulating the demands those trolls make and increasing transparency around those demands.

Who: Julie Samuels, EFF Senior Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents

What: US Senate Committee on Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety, and Insurance hearing: "Demand Letters and Consumer Protection: Examining Deceptive Practices by Patent Assertion Entities"

When: 10:00 am EST, Thursday, Nov. 7

Where: Russell Senate Office Building, Room 253, Washington, DC

Webcast: http://www.commerce.senate.gov

EFF staff will provide live commentary on the hearing via Twitter. Follow @EFFLive or visit https://twitter.com/efflive.

For the official announcement from the Senate Commerce Committee: https://eff.org/r.5chx

Related Issues:
October 24, 2013

Government Damaged the Backbone of the Internet When It Demanded Email Service’s Private Encryption Key

San Francisco - Federal law enforcement officers compromised the backbone of the Internet and violated the Fourth Amendment when they demanded private encryption keys from the email provider Lavabit, the Electronic Frontier Foundation (EFF) argues in a brief submitted Thursday afternoon to the US Court of Appeals for the Fourth Circuit. In the amicus brief, EFF asks the panel to overturn a contempt-of-court finding against Lavabit and its owner Ladar Levison for resisting a government subpoena and search warrant that would have put the private communications and data of Lavabit's 400,000 customers at risk of exposure to the government.

For nearly two decades, secure Internet communication has relied on HTTPS, a encryption system in which there are two keys: A public key that anyone can use to encrypt communications to a service provider, and a private key that only the service provide can use to decrypt the messages.

In July, the Department of Justice demanded Lavabit's private key—first with a subpoena, then with a search warrant. Although the government was investigating a single user, having access to the private key means the government would have the power to read all of Lavabit's customers' communications. The target of the investigation has not been named, but journalists have noted that the requests came shortly after reports that NSA whistleblower Edward Snowden used a Lavabit email account to communicate.

"Obtaining a warrant for a service's private key is no different than obtaining a warrant to search all the houses in a city to find the papers of one suspect," EFF Senior Staff Attorney Jennifer Lynch said. "This case represents an unprecedented use of subpoena power, with the government claiming it can compel a disclosure that would, in one fell swoop, expose the communications of every single one of Lavabit's users to government scrutiny."

EFF's concerns reach beyond this individual case, since the integrity of HTTPS is employed almost universally over the Internet, including in commercial, medical and financial transactions.

"When a private key has been discovered or disclosed to another party, all users' past and future communications are compromised," EFF Staff Technologist Dan Auerbach said. "If this was Facebook's private key, having it would mean unfettered access to the personal information of 20 percent of the earth's population. A private key not only protects communications on a given service; it also protects passwords, credit card information and a user's search engine query terms."

Initially, Levison resisted the government request. In response, a district court found Lavabit in contempt of court and levied a $5,000-per-day fine until the company complied. After Levison was forced to turn over Lavabit's key, the certificate authority GoDaddy revoked the key per standard protocol, rendering the secure site effectively unavailable to users.

Since Lavabit's business model is founded in protecting privacy, Levison shut down the service when it no longer could guarantee security to its customers.

"The government's request to Lavabit not only disrupts the security model on which the Internet depends, but also violates our Constitutional protections against unreasonable searches and seizures," EFF Staff Attorney Hanni Fakhoury said. "By effectively destroying Lavabit's legitimate business model when it complied with the subpoena, the action was unreasonably burdensome and violated the Fourth Amendment."

The deadline for the government's response brief is Nov. 12, 2013.

For EFF's full amicus brief:

https://www.eff.org/document/lavabit-amicus

Contacts:

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

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

October 23, 2013

StopWatching.us Coalition Releases Video to Support Oct. 26 Rally Against NSA Mass Surveillance

US Rep. John Conyers Jr., “Pentagon Papers” whistleblower Daniel Ellsberg and actor Maggie Gyllenhaal join a chorus of prominent voices calling for an end to mass suspicionless surveillance by the National Security Agency (NSA) in a new short video released by the StopWatching.us coalition. Directed by Brian Knappenberger (We Are Legion: The Story of the Hackivists) and produced by the Electronic Frontier Foundation (EFF), the PSA-style video draws parallels between the privacy invasions perpetrated by the Nixon administration and the dragnet telecommunications data collection confirmed this summer by whistleblower Edward Snowden.

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WATCH THE VIDEO HERE: https://rally.stopwatching.us/

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The video, “Stop Watching Us: The Video,” is a call to action released in support of the Stop Watching Us: Rally Against Mass Surveillance being held in Washington, DC, on Saturday, Oct. 26, the 12th anniversary of the Patriot Act. Formed in June 2013, the StopWatching.us coalition is comprised of more than 100 public advocacy organizations and companies from across the political spectrum demanding that Congress investigate the full extent of the NSA's spying programs.

“I’m very honored to help EFF and StopWatching.us get out the word and make the rally in DC as big and as informed as possible,” Knappenberger said. “This is the moment for a large scale debate on the future of this thing we all love, the Internet, the way we communicate, our relationship with our government and how technology and its progress can blend with more traditional notions of privacy, liberty and democracy.”

A diverse cast of media, academic, political and legal figures and truth-speakers unite in the video to sound the alarm over unconstitutional government surveillance. The full list, in order of appearance, includes: 

  • Daniel Ellsberg, “Pentagon Papers” whistleblower
  • Phil Donahue, television talk-show pioneer
  • US Rep. John Conyers Jr., (D-MI), ranking Democrat on the House Judiciary Committee
  • David Segal, executive director of Demand Progress
  • Maggie Gyllenhaal, actor and activist
  • Oliver Stone, director of The Untold History of the United States and Nixon
  • John Cusack, actor and activist
  • Wil Wheaton, actor and writer
  • Molly Crabapple, artist and writer
  • Jesselyn Radack, U.S. Department of Justice whistleblower and national security and human rights director at the Government Accountability Project
  • J. Kirk Wiebe, NSA whistleblower
  • Mark Klein, AT&T whistleblower who revealed the telecommunications company’s collaboration with the NSA in collecting customer data
  • Thomas Drake, NSA whistleblower
  • Cindy Cohn, Legal Director at the Electronic Frontier Foundation
  • Dan Choi, LGBTQ activist and Iraq War veteran
  • Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law School

Thomas Drake and Daniel Choi will also speak at the rally, which begins with a march from Columbus Circle to the Capitol Reflecting Pool at 12 p.m. EST on Saturday, Oct. 26. StopWatching.us will also deliver more than 500,000 signatures opposing the NSA’s mass surveillance to Congress. The coalition is calling for a full Congressional investigation of America’s surveillance programs, reform to federal surveillance law, and accountability from officials responsible for hiding this surveillance from lawmakers and the public.

For more information on the full list of organizations involved in the coalition and the joint letter sent to Congress, please visit: https://stopwatching.us/.

More information about the rally is available here: https://rally.stopwatching.us.

To speak to a StopWatching.us spokesperson about the video, please contact Christina DiPasquale at 202.716.1953 or Christina@fitzgibbonmedia.com.

Related Issues:
October 16, 2013

Massive Crowdsourcing Effort Leads to Strong Petition Before the USPTO

San Francisco - The Electronic Frontier Foundation (EFF) today filed a formal challenge to the so-called "podcasting patent" used by a patent troll to shake down podcasters big and small for licensing fees. The petition for inter partes review, presented today to the US Patent and Trademark Office (USPTO), is the first legal filing in EFF's "Save Podcasting" campaign launched in May.

In January 2013, Personal Audio, LLC, began suing a number of podcasters, including comedian Adam Carolla (The Adam Carolla Show) and three major television networks, claiming they infringe U.S. Patent No. 8,112,504. In addition to filing these lawsuits, Personal Audio has sent demand letters to a variety of podcasters demanding that they pay a license fee. Because Personal Audio's business model is entirely based on leveraging its patents and it does not do any podcasting itself, the company fits the definition of a "non-practicing entity," or—as everyone from EFF to the White House calls these entities—a "patent troll."

"As we show in our petition, Personal Audio is not the true inventor of this technology and should not be demanding a payout from today's podcasters," EFF Staff Attorney Daniel Nazer said. "If you look into the history of podcasting, you won't see anything about Personal Audio."

Today's petition shows 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 the petition, EFF cites three examples: Internet Pioneer Carl Malamud's "Geek of the Week" online radio show and online broadcasts by CNN and the Canadian Broadcasting Corporation (CBC).

Members of the public donated $76,160 to fund this campaign, an amount more than double what EFF originally requested when it launched its "Save Podcasting" fundraiser in May. EFF partnered with attorneys working pro bono and the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society to craft the petition. The donated funds will be used to pay the fees and costs associated with the petition, which are primarily Patent Office filing fees. Any funds remaining after the fees are paid will go towards EFF's ongoing patent reform work.

"Bad patents like this one slow down innovation—exactly the opposite of what the patent system was intended to do," said EFF Senior Staff Attorney Julie Samuels, the Mark Cuban Chair to Eliminate Stupid Patents. "We are thrilled to challenge this bad patent and make the world safer for creators and podcasters."

EFF's "Patent Busting Project" is part of a larger effort to defend innovation through both legal and legislative means.

For the petition:
https://www.eff.org/document/podcasting-petition-inter-partes-review

For Personal Audio's U.S. Patent No. 8,112,504
http://www.google.com/patents/US8112504

Contacts:

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

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

October 10, 2013

Citing Concerns Over NSA’s Impact on Corporate Members, EFF Leaves Industry Group

San Francisco - The Electronic Frontier Foundation (EFF) today withdrew from the Global Network Initiative (GNI), citing a fundamental breakdown in confidence that the group's corporate members are able to speak freely about their own internal privacy and security systems in the wake of the National Security Agency (NSA) surveillance revelations.

EFF has been a civil society member of the multi-stakeholder human rights group since GNI was founded in 2008 to advance freedom of expression and privacy in the global information and communication technologies sector. While much has been accomplished in these five years, EFF can no longer sign its name on joint statements knowing now that GNI's corporate members have been blocked from sharing crucial information about how the US government has meddled with these companies' security practices through programs such as PRISM and BULLRUN.

"We know that many within the industry do not like or approve of such government interference, and GNI has, in statements, made it clear that member companies want permission from the US government to engage in greater transparency," EFF's International Director Danny O'Brien and Director for International Freedom of Expression Jillian C. York write in a letter to GNI leadership. "However, until serious reforms of the US surveillance programs are in place, we no longer feel comfortable participating in the GNI process when we are not privy to the serious compromises GNI corporate members may be forced to make. Nor do we currently believe that audits of corporate practice, no matter how independent, will uncover the insecurities produced by the US government's—and potentially other governments'—behavior when operating clandestinely in the name of national security."

EFF's involvement with GNI included helping to define its founding principles over two years of negotiations; coordinating opposition to the United Kingdom's Communications Data Bill in 2011; releasing a paper addressing free-speech issues surrounding account deactivation and content removal; and collaborating with fellow members in internal international technical and policy analysis. However, EFF can no longer stand behind the credibility of what had been one of GNI's most significant achievements—third-party privacy and freedom of expression assessments of service providers, including Google, Microsoft and Yahoo.

Moving forward, EFF plans to continue to provide guidance to the GNI and engage companies directly, but as an external organization. EFF supports the other organizations and individuals that continue to work within the GNI for the free speech and privacy rights of users worldwide.

"Although EFF is taking a step back, GNI can still serve an important role as a collaborative project between human rights groups, companies, investors and academics," York said. "If the United States government truly supports international 'Internet freedom,' it would recognize the damage its policies are doing to weaken such efforts and the world's confidence in American companies."

For the text of the letter:

https://www.eff.org/document/gni-resignation-letter-0

Contacts:

Jillian York
Director for International Freedom of Expression
Electronic Frontier Foundation
jillian@eff.org

September 20, 2013

Privacy Advocates Call Upon UN Member States to End Mass Internet Spying Worldwide

Geneva - At the 24th Session of the United Nations Human Rights Council on Friday, six major privacy NGOs, including the Electronic Frontier Foundation (EFF), warned nations of the urgent need comply with international human rights law to protect their citizens from the dangers posed by mass digital surveillance.

The groups launched the "International Principles on the Application of Human Rights to Communications Surveillance" at a side event on privacy hosted by the governments of Austria, Germany, Hungary, Liechtenstein, Norway, and Switzerland. The text is available in 30 languages at http://necessaryandproportionate.org.

"Governments around the world are waking up to the risks unrestrained digital surveillance pose to free societies," EFF International Rights Director Katitza Rodriguez said during the official presentation of the principles. "Privacy is a human right and needs to be protected as fiercely as all other rights. States need to restore the application of human rights to communications surveillance."

The document was the product of a year-long negotiation process between Privacy International, the Electronic Frontier Foundation, Access, Human Rights Watch, Reporters Without Borders, and the Association for Progressive Communications. The document spells out how existing human rights law applies to modern digital surveillance and gives lawmakers and observers a benchmark for measuring states' surveillance practices against long-established human rights standards. The principles have now been endorsed by over 260 organizations from 77 countries, from Somalia to Sweden.

Included in the 13 principles are tenets such as:

Necessity: State surveillance must be limited to that which is necessary to achieve a legitimate aim.

Proportionality: Communications surveillance should be regarded as a highly intrusive act and weighed against the harm that would be caused to the individual's rights.

Transparency: States must be transparent about the use and scope of communications surveillance. Public Oversight: States need independent oversight mechanisms.

Integrity of Communications and Systems: Because compromising security for state purposes always compromises security more generally, states must not compel ISPs or hardware and software vendors to include backdoors or other spying capabilities.

EFF and its co-signers will use the principles to advocate at national, regional and international levels for a change in how present surveillance laws are interpreted and new laws are crafted, including urging the United States government to re-engineer its domestic surveillance program to comply with international human rights law.

The event, "How to Safeguard the Right to Privacy in the Digital Age," featured speakers including Navi Pillay, the United Nations High Commissioner for Human Rights--who highlighted the recent scandals over British and US surveillance programs in her introductory remarks to the Human Rights Council this week—and Frank La Rue, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. Earlier this year, LaRue released a report that details the widespread use of state surveillance of communications in several countries, stating that such surveillance severely undermines a citizenry's ability to enjoy private lives, freely express themselves and exercise their other fundamental human rights.

"Member states of the Human Rights Council should assess their surveillance laws and bring them into compliance with the 13 benchmarks," Rodriguez says. "We must put an end to unchecked, suspicionless, mass spying online."

Contacts:

Katitza Rodriguez
   International Rights Director
   Electronic Frontier Foundation
   katitza@eff.org

September 10, 2013

National Lawyers Guild, Patient Privacy Rights and The Shalom Center Among 22 Groups Asserting Right to Free Association

San Francisco - Five new groups—including civil-rights lawyers, medical-privacy advocates and Jewish social-justice activists—have joined a lawsuit filed by the Electronic Frontier Foundation (EFF) against the National Security Agency (NSA) over the unconstitutional collection of bulk telephone call records. With today's amended complaint, EFF now represents 22 entities in alleging that government surveillance under Section 215 of the Patriot Act violates Americans' First Amendment right to freedom of association.

The five entities joining the First Unitarian Church of Los Angeles v. NSA lawsuit before the U.S. District Court for the Northern District of California are: Acorn Active Media, the Charity and Security Network, the National Lawyers Guild, Patient Privacy Rights and The Shalom Center. They join an already diverse coalition of groups representing interests including gun rights, environmentalism, drug-policy reform, human rights, open-source technology, media reform and religious freedom.

"The First Amendment guarantees the freedom to associate and express political views as a group," EFF legal director Cindy Cohn said. "The NSA undermines that right when it collects, without any particular target, the phone records of innocent Americans and the organizations in which they participate. In order to advocate effectively, these organizations must have the ability to protect the privacy of their employees and members."

In June, The Guardian newspaper published a secret order from the Foreign Intelligence Surveillance Court (FISC) that authorized the wholesale collection of phone records of all Verizon customers, including the numbers involved in each call, the time and duration of the call, and "other identifying information." Government officials subsequently confirmed the document's authenticity and acknowledged the order was just one of a series issued on a rolling basis since at least 2006.

EFF originally filed the lawsuit on June 16, arguing the tracking program allows the government to compile detailed connections between people and organizations that have no correlation to national security investigations. Along with adding the new plaintiffs, the amended complaint also adds new information about "contact chaining" searches through the vast trove of phone records, adds James B. Comey as a defendant now that he is the head of the FBI, and makes some additional changes.

For Rabbi Arthur Waskow of The Shalom Center, the revelations come with a sense of déjà vu.

"Jewish tradition for at least the last 2,000 years has celebrated the right of privacy of the people against surveillance by a ruler," Waskow said. "A generation ago, I joined with other antiwar activists to successfully sue the FBI over its 'COINTELPRO' program, which violated our right to assemble in opposition to the Vietnam War. Now, as director of The Shalom Center—a religious organization advocating for peace, social justice and environmental sustainablility—I am concerned that the NSA has greatly surpassed the FBI in undermining our Constitutional rights."

The National Lawyers Guild, a public-interest legal association that has defended civil rights for more than 75 years, notes that surveillance has substantially impeded its ability to communicate with those seeking legal assistance.

"Applied on a massive scale, government surveillance becomes a form of oppression," the Guild's Executive Director Heidi Boghosian said. "Knowing that we are likely monitored, we have curbed our electronic interactions. Sensitive discussions about cases are confined to in-person meetings and letters. We have no illusions that our hotline for individuals visited by the FBI is private; we don't even ask for specific details for fear of government eavesdropping."

EFF also represents the plaintiffs in Jewel v. NSA, a class-action case filed on behalf of individuals in 2008 aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans. The Jewel case is set for a conference with the Court on September 27 in San Francisco.

For the amended complaint:
https://www.eff.org/document/first-unitarian-church-los-angeles-v-nsa-amended-complaint

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Rabbi Arthur Waskow
Director
The Shalom Center
awaskow@theshalomcenter.org

Related Issues:
September 4, 2013

Original Patriot Act Author Says Call-Data Collection Exceeds Congressional Intent

San Francisco - The Electronic Frontier Foundation (EFF) today filed a brief on behalf of Rep. Jim Sensenbrenner (R-WI), the author of the original USA PATRIOT Act, in a case brought by the American Civil Liberties Union (ACLU) against the National Security Agency (NSA). In the brief, Sensenbrenner argues that Congress never intended the Patriot Act to permit the NSA's collection of the records of every telephone call made to, from and within the United States. Sensenbrenner urges the court to deny the NSA's motion to dismiss and grant the ACLU's motion for a preliminary injunction, which would halt the program until the case is decided.

In early June, The Guardian published a classified document leaked by former NSA contractor Edward Snowden detailing how the agency is vacuuming up call data from the Verizon phone network under the auspices of Section 215 of the Patriot Act. Within days, the ACLU filed a lawsuit to defend Americans' rights to privacy, due process, and free speech. Meanwhile, a coalition of legislators—led by Sensenbrenner, who served as Chairman of the House Judiciary Committee when the Patriot Act passed—openly criticized the agency's practices as far exceeding the surveillance authority granted by Congress.

"I stand by the Patriot Act and support the specific targeting of terrorists by our government, but the proper balance has not been struck between civil rights and American security," said Sensenbrenner, who chaired the House Judiciary Committee during the Patriot Act debates. "A large, intrusive government-however benevolent it claims to be-is not immune from the simple truth that centralized power threatens liberty. Americans are increasingly wary that Washington is violating the privacy rights guaranteed to us by the Fourth Amendment."

In July, EFF filed a separate lawsuit against the NSA on behalf of 18 diverse organizations, including gun advocates, environmentalists and churches, arguing that Section 215 violates the First Amendment right to association. Today's brief in the ACLU case is another prong in EFF's robust strategy to end the collection of millions of innocent Americans' telecommunications data.

"Congress did not grant intelligence agencies unbounded record-collecting authority," EFF Senior Staff Attorney David Greene said. "The law was crafted to allow the NSA to obtain only records that were relevant to 'an authorized investigation.' The NSA admits that the vast majority of the records it collects bear no relation to terrorism. The program's limitless scope vastly exceeds what Congress intended."

For the full amicus brief:

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

Contacts:

David Greene
Senior Staff Attorney
Electronic Frontier Foundation
davidg@eff.org

Ben Miller
Communications Director
Rep. Jim Sensenbrenner (WI-05)
benmiller@mail.house.gov

Related Issues:
August 22, 2013

EFF Sues Liberation Music for Forcing Harvard Professor’s Video Off YouTube

San Francisco - The Electronic Frontier Foundation (EFF) today filed suit against an Australian record company for misusing copyright law to remove a lecture by Harvard Law School professor Lawrence Lessig from YouTube. With co-counsel Jones Day, EFF is asking a federal judge in Massachusetts to rule that the video is lawful fair use, to stop Liberation Music from making further legal threats, and to award damages.

"The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them," Lessig said. "I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight."

A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.

Copyright law allows for the fair use of works for purposes such as criticism, comment, teaching, and scholarship. Professor Lessig's use of the "Lisztomania" clips in his lecture was a classic example of fair use and was not copyright infringement.

Earlier this year, Liberation Music, which claims to own the license to the Phoenix song, began the process to block the video through YouTube's copyright infringement system. After the company submitted a DMCA takedown notice, Lessig filed a counter-notice that asserted the clips were fair use. After Liberation Music threatened to sue Lessig, he retracted the notice. But Lessig did not concede this issue. Instead, he enlisted EFF's help to take Liberation Music to court.

"There's a long and sorry history of content owners abusing copyright to take down fair uses, but this one is particularly shocking," said EFF Intellectual Property Director Corynne McSherry. "Based on nothing more than a few clips illustrating Internet creativity, Liberation Music took down an entire lecture by one of the leading experts in the world on copyright and fair use. This kind of abuse has to stop."

About Prof. Lessig:

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.

For the full complaint:

https://www.eff.org/document/lessig-v-liberation-music-complaint

For Liberation Music's email to Prof. Lessig:

https://www.eff.org/document/lessig-v-liberation-music-exhibit-b

Contacts:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

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

Related Issues:
August 22, 2013

Legal Threats Dropped in Battle Over Term to Describe Gay Gamers

San Francisco - In a big win for gay gamers around the world, a blogger has surrendered his bogus trademark claim on the word 'gaymer,' freeing online forums, conventions, and others to use the descriptive term without fear of legal threats and interference.

The Electronic Frontier Foundation (EFF) and the law firm Perkins Coie represented a group of Reddit gaymers – members of the lesbian, gay, bisexual, and transgendered community who have an active interest in videogames – after their long-running Reddit forum called r/gaymers was the target of a cease-and-desist letter complaining about their use of the term. It turns out blogger Chris Vizzini, who started a website called gaymer.org in 2006, had registered a trademark on 'gaymer' even though it had been in widespread use long before Vizzini started his website. With the help of EFF and Perkins Coie, the Reddit gamers asked the U.S. Patent and Trademark Office (USPTO) to cancel the trademark in January of this year. Vizzini ultimately decided to surrender the mark, which was officially revoked this week.

"Gaymer is a term that everyone can use – including Vizzini – and we're pleased that there is no legal question about that now," said EFF Intellectual Property Director Corynne McSherry. "But the real tragedy is that this term was ever registered for a trademark in the first place. You shouldn't have to go through a big legal battle to use a word you've used for years. The PTO must get more vigilant about the trademarks it allows to be registered in order to protect everyone's free speech rights."

"Trademark is supposed to protect consumers from confusion, not to shut down discussion spaces and the names they have rallied around," said Zack Karlsson, the r/gaymer community's representative in the trademark challenge. "We were shocked that anyone would try to assert ownership rights in 'gaymer' and felt the term belonged to the public, not Mr. Vizzini."

"We are thrilled with this result," said Judy Jennison, lead counsel for Perkins Coie. "It's been a privilege to work with EFF and Zack to clean up the registry and support an open discussion."

Cancellation from USPTO:
https://www.eff.org/document/cancellation

For more on this case:
https://www.eff.org/cases/petition-cancel-gaymer-trademark

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

August 21, 2013

EFF to Honor Aaron Swartz, James Love, and Glenn Greenwald and Laura Poitras Next Month in San Francisco Ceremony

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the distinguished winners of the 2013 Pioneer Awards: late digital rights activist Aaron Swartz, international access to knowledge advocate James Love, and Glenn Greenwald and Laura Poitras – the journalists behind the blockbuster stories detailing extensive spying by the U.S. National Security Agency (NSA).

The award ceremony will be held the evening of September 19 at the Lodge at the Regency Center in San Francisco. Renowned academic, author, and activist Professor Lawrence Lessig will be the keynote speaker.

Pioneer award winners Glenn Greenwald and Laura Poitras brought the world clear and credible news and analysis about the massive domestic surveillance programs currently conducted by the NSA – transforming leaked documents by whistleblower Edward Snowden into riveting narrative that everyone could understand. These blockbuster stories exposed a web of convoluted, invasive spying on phone call history, email connections, and other communications data, sparking outrage across the globe and unprecedented admissions by the U.S. government about the extent of the surveillance. Greenwald worked as a constitutional and civil rights litigator before turning to journalism. He was the first recipient of the I.F. Stone Award for Independent Journalism and won the 2010 Online Journalism Award. Poitras is a documentary filmmaker and has won a Peabody Award for her work, as well as a 2012 MacArthur Fellowship. She has also been nominated for both an Academy Award and an Emmy Award. Greenwald and Poitras are both founding board members of the Freedom of the Press Foundation, which supports and defends transparency journalism.

James Love is one of the leading champions in the international battle for access to knowledge, defending everyone's right to free speech, privacy, fair competition, and health across the globe for more than 20 years. As the director of Knowledge Ecology International (KEI), Love was instrumental in the adoption of a global intellectual property treaty for people with reading and visual disabilities this year. Love tirelessly fought strong resistance from the intellectual property rightsholder community, and the result enshrines fair use rights – in this case, the right to transform reading material into accessible formats – into an international treaty for the first time in history. Love has been a crucial defender of users' rights against trade agreements with restrictive copyright provisions like TPP and ACTA, and is also fighting against the content industry's efforts to expand new, copyright-like rights over content to broadcasters. Additionally, as a civil society leader in Washington, D.C., he advocates for open, transparent rulemaking.

Aaron Swartz's achievements and influence on the Internet and its activist community are profound, despite his untimely death at age 26 earlier this year. Swartz co-authored the RSS web feed format when he was 14 and was one of the early architects of Creative Commons. He was a developer of the Internet Archives' Open Library and one of the co-creators of the online news site Reddit. Swartz founded the online activism group Demand Progress, which was a critical part of the successful campaign blocking the SOPA and PIPA Internet censorship bills. Swartz was also a committed activist for the cause of open access to government and government-funded information. In 2011, Swartz was accused of downloading millions of academic articles from the online archive JSTOR, allegedly without "authorization" even though his access to JSTOR through MIT's open network was authorized by JSTOR's contract with MIT. He faced 13 felony counts of hacking and wire fraud, including some under the draconian Computer Fraud and Abuse Act (CFAA). After two years of fighting the charges, Swartz tragically took his own life this past January.

"Aaron was nominated for a Pioneer Award regularly over the years, and we always thought we'd have a long time to give it to him – he had done amazing work so far, and we knew that over time he would continue to contribute to building a better future for the Internet and digital rights," said EFF Legal Director Cindy Cohn. "All of EFF is heartbroken at his passing and that we didn't seize the opportunity to give Aaron this honor while he was still with us. But we'll do our best to celebrate his life and do justice to his giant body of work."

"What all of this year's Pioneer Award winners have in common is the desire to democratize the flow of information, and they have all made the world a better, fairer place through their tireless efforts," said EFF Executive Director Shari Steele. "We are so proud to be able to honor them and their extraordinary achievements at the ceremony on September 19th."

Tickets to the Pioneer Awards are $65 for EFF members and $75 for non-members. Also available are tickets to a special advance reception featuring past and present Pioneer Award winners, special guests, and keynoter Lawrence Lessig, who spent more than a decade leading the fight for intellectual property reform and now is part of the campaign to reform computer crime law in the wake of his friend Aaron Swartz's death.

Awarded every year since 1992, EFF's Pioneer Awards recognize the leaders who are extending freedom and innovation on the electronic frontier. Previous honorees include Tim Berners-Lee, the Tor Project, Limor "Ladyada" Fried, Linus Torvalds, and Tunisian blogging collective Nawaat, among many others. Sponsors of this year's Pioneer Awards include Automattic, Inc., Facebook, SaurikIT, JunkEmailFilter.com, JibJab, and Pinterest.

To buy tickets to this Pioneer Awards:
https://www.eff.org/awards/pioneer/2013/tickets

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

August 20, 2013

EFF, Fenwick & West, and Durie Tangri Team Up to Defend Right to Access and Share Safety Standards

San Francisco - In an ongoing effort to protect free speech and the right of the public to examine the rules and regulations that govern our society, the Electronic Frontier Foundation (EFF) today announced it will defend open-government advocate Carl Malamud and the organization he founded, Public.Resource.Org, against a copyright lawsuit filed by three standards development organizations. Fenwick & West LLP, Durie Tangri LLP, and David Halperin join EFF as co-counsel.

On August 3, the National Fire Protection Association, ASTM International and the American Society of Heating, Refrigerating and Air Conditioning Engineers filed a lawsuit with a federal court in Washington, D.C., alleging "massive copyright infringement" by Public.Resource.Org for publishing codes and standards that have been incorporated into law. EFF argues such standards must be treated as part of the public domain, and Public.Resource.Org has a constitutional right to ensure government accountability by making the documents publicly available.

"Standards organizations get huge benefits from having their standards adopted as mandatory by federal and state regulators," EFF Staff Attorney Mitch Stoltz said. "But those benefits don't include the right to control access to those laws."

This isn't the first time Public.Resource.Org has faced legal threats for its work. In Public.Resource.Org v. SMACNA, a standards development organization claimed that it held the copyright in federally mandated air-duct standards and that Malamud's site violated its copyright by publishing them online. EFF and co-counsel Fenwick & West and David Halperin stepped in to litigate the case, and SMACNA promptly backed down.

The stakes are even higher this time around. The standards in question are crucial to the public's interest in fire and electrical safety. Public access to such codes is important when, for example, there is an industrial accident or natural disaster, or when a homebuyer wants to double-check that a house was built to code. Public.Resource.Org publishes the codes in a user-friendly format for not only interested citizens, but reporters, researchers, and business owners.

"Private organizations shouldn't control who can read the law, or where and how they can access it," Stoltz said. "The law belongs to all of us."

With decades of experience as a transparency advocate and eight books under his belt, Malamud founded Public.Resource.Org in Sebastopol, CA, in 2007 and currently serves as the nonprofit's president. In recent years, the organization has focused on obtaining and publishing a variety of legal documents and court decisions to make the law and justice system more accessible to the public.

"Technical standards incorporated into law are some of the most important rules of our modern society," Malamud said. "In a democracy, the people must have the right to read, know, and speak about the laws by which we choose to govern ourselves."

Contact:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Related Issues:
August 9, 2013

Court Blocks Enforcement of Dangerous New Jersey Law

Newark, NJ - A New Jersey federal district court judge granted motions for a preliminary injunction today, blocking the enforcement of a dangerous state law that would put online service providers at risk by, among other things, creating liability based on "indirect" publication of content by speech platforms.

The Electronic Frontier Foundation (EFF) argued for the injunction in court on behalf of the Internet Archive, as the statute conflicts directly with federal law and threatens service providers who enable third party speech online.

"The Constitution does not permit states to pass overbroad and vague statutes that threaten protected speech. The New Jersey statute created that threat and the court was right to block it," said EFF Senior Staff Attorney Matt Zimmerman. "Similarly, Section 230 of the Communications Decency Act prohibits the state from threatening to throw online providers in jail for what their users do and the statute violated that rule as well. We are grateful that the court recognized the importance of these bedrock principles to online libraries and other platforms that make the Internet the vital and robust tool it is today."

The New Jersey law at issue is an almost carbon-copy of a Washington state law successfully blocked by EFF and the Internet Archive last year. While aimed at combatting online ads for underage sex workers, it instead imposes stiff criminal penalties on ISPs, Internet cafes, and libraries that "indirectly" cause the publication or display of content that might contain even an "implicit" offer of a commercial sex act if the content includes an image of a minor. The penalties – up to 20 years in prison and steep fines – would put enormous pressure on service providers to block access to broad swaths of otherwise protected material in order to avoid the vague threat of prosecution.

"Within the past month, we've seen a coalition of state attorneys general ask Congress to gut CDA 230 to make way for harmful laws like New Jersey's," said Zimmerman. "This misguided proposal puts speech platforms at risk, which in turn threatens online speech itself. Law enforcement can and must pursue criminals vigorously, but attacking the platforms where people exercise their right to free speech is the wrong strategy."

Backpage.com separately filed suit against this law, represented by the law firm of Davis Wright Tremaine, who also joined today's argument.

For more on this case:
https://www.eff.org/cases/internet-archive-v-hoffman

Contact:

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

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