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September 15, 2014

EFF Takes on Net Neutrality's Critics in New Comments to FCC

San Francisco - The Electronic Frontier Foundation (EFF) urged the Federal Communications Commission (FCC) today to see through misinformation from Internet service providers (ISPs) and protect the open Internet.

EFF's formal response to the ISPs' claims are part of the FCC's public comment period for its proposed new rules that would allow for so-called "Internet fast lanes" – a dangerous plan that would allow unfair Internet traffic discrimination and undermine net neutrality. The FCC has received over 1.7 million comments on the issue, with over 127,000 delivered through EFF's DearFCC.org comment tool.

"The FCC is going down a dangerous path, risking future Internet expression and innovation, and the big ISPs are encouraging the commission every step of the way," said EFF Intellectual Property Director Corynne McSherry. "Will the FCC respond to the pleas of more than a million Internet users and do its part to protect net neutrality? Or will it open the door to a tiered Internet, with ISPs serving as gatekeepers for their subscribers?"

In comments submitted today, EFF reiterated that the FCC must reclassify broadband as a "common carrier" service, which would allow the commission to enforce rules like the ones that insure fair and equal telephone service. Some ISPs, including cable Internet provider Comcast, have argued against the reclassification, telling the FCC that a recent court decision gives the commission all it needs to protect the open Internet. But that claim is based on a complete misreading of the court's ruling.

"What the court actually said was that the current classification of the Internet would not allow the FCC to ban unreasonable discrimination of network traffic," said EFF Staff Attorney Mitch Stoltz. "The court gave the FCC a roadmap for protecting the open Internet, and it starts with reclassification, not preserving the status quo."

ISPs' comments to the FCC also fought against service-performance transparency, claiming detailed information about network traffic would confuse consumers instead of helping them—essentially arguing that consumers were too uninformed to know what was good for them. Another outrageous claim came from cell phone providers responding to calls from EFF and others to handle mobile Internet traffic without discrimination. The providers argued that there was no current problem in the mobile space, despite obvious examples like AT&T blocking the FaceTime app.

"The Internet is an unprecedented global platform for free expression, commerce, and communications of all kinds. We can't let a few powerful companies throttle it," said EFF Staff Technologist Jeremy Gillula. "The FCC must correct its course and protect our access to this invaluable resource."

For the full comments to the FCC:
https://www.eff.org/document/reply-comments

For more on net neutrality:
https://www.eff.org/issues/net-neutrality

Contacts:

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

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

Jeremy Gillula
   Staff Technologist
   Electronic Frontier Foundation
   jeremy@eff.org

Related Issues:
August 27, 2014

Wizards, Browncoats, Sherlockians, and Other Creative Communities Join EFF in “Project Secret Identity” Photo Campaign

Atlanta - The Electronic Frontier Foundation (EFF), sci-fi blog io9, and a coalition of fan communities are launching "Project Secret Identity," a cosplay photo campaign to raise awareness of the importance of anonymity and privacy during the annual pop culture convention Dragon Con in Atlanta, Georgia, Aug. 29 - Sept. 1.

The campaign, online at ProjectSecretIdentity.org, is supported by a cross-fandom coalition of organizations, including: Southeastern Browncoats, a Firefly-inspired non-profit; the Harry Potter Alliance, an activism organization; the Baker Street Babes, a Sherlock Holmes fan group and podcast; Wattpad, a community of readers and writers; and the Organization for Transformative Works, a fan-culture advocacy organization.

"Whether it's the 'Eye of Sauron' in The Lord of the Rings or 'The Machine' in Person of Interest, genre culture has long explored and criticized mass surveillance," said EFF Investigative Researcher Dave Maass. "The last year's worth of stories about the NSA have read too much like dystopian fiction. In response, we need to focus the imaginations of fans to advocate for a future where free expression is protected through privacy and anonymity. "

During the campaign, cosplayers around the world can use ProjectSecretIdentity.org to post photos of themselves in costume bearing pro-anonymity slogans, such as "I Have the Right to a Secret Identity" and "Privacy is Not a Fantasy." Dragon Con attendees can also stop by the Project Secret Identity photo stations at EFF's table (second floor at the Hilton Atlanta) and the Southeastern Browncoats' booth (#1000 at AmericasMart).

"In J.K. Rowling's novels, Voldemort came to power not only through coercion, but by monitoring, controlling, and censoring the Wizarding World's lines of communication," Harry Potter Alliance Executive Director Paul DeGeorge said. "In the real world, there is no charm-protected room where we can meet and organize in secret. What we have is the Internet and we need to fight to keep it free and secure."

"Freedom from oppressive governments is central to the ethos of the Firefly fandom," said Serenity Richards, captain of the Southeastern Browncoats. "By standing up for anonymity today, we can prevent 'The Alliance' from becoming a reality in the future."

The activism campaign coincides with Dragon Con's Electronic Frontiers Forum, a track of panels on the intersection of technology with free speech and privacy. EFF Deputy General Counsel Kurt Opsahl will present an update to his acclaimed presentation, "Through a PRISM, Darkly: Everything we know about NSA spying," which debuted at the Chaos Communication Congress in Hamburg, Germany in December 2013. Opsahl and Maass will also speak on a number of discussion panels, covering issues ranging from police searches of cell phones to the Freedom of Information Act.

EFF will also support screenings of Terms and Conditions May Apply, a 2013 documentary about Web site terms of service, and The Internet's Own Boy, Brian Knappenberger's 2014 documentary about the late Internet activist Aaron Swartz.

Founded in 1987, Dragon Con is expected to draw more than 62,000 attendees this year.

For EFF's schedule at Dragon Con:
https://www.eff.org/event/eff-goes-dragon-con

Contact:

Dave Maass
Media Relations Coordinator and Investigative Researcher
Electronic Frontier Foundation
press@eff.org

Cosplay photos:

Top: Kiba Shiruba as "Cyber" Frey from Fisheye Placebo. (High resolution)

EFF Investigative Researcher Dave Maass as Harry Tuttle from Brazil. (High resolution)

Hannah Grimm as Chell from Portal. (High resolution)

Related Issues:
August 20, 2014

EFF to Honor Former U.N. Special Rapporteur Frank LaRue, U.S. Rep. Zoe Lofgren, and artist Trevor Paglen at San Francisco Ceremony Featuring the Yes Men

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the distinguished winners of the 2014 Pioneer Awards: United Nations Special Rapporteur Frank LaRue, U.S. Rep. Zoe Lofgren, and groundbreaking counter-surveillance artist Trevor Paglen.

The award ceremony will be held the evening of October 2 at the Lodge at the Regency Center in San Francisco. Keynote speakers will be Jacques Servin and Igor Vamos, better known as the Yes Men, who are known for their elaborate parodies and impersonations to fight government and corporate malfeasance

Frank LaRue is the former U.N. Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. From his appointment in 2008 to the end of his term in 2014, LaRue brought technology to the forefront of the fight for free expression around the world, declaring that access to the Internet is a fundamental human right and highlighting the importance of uncensored communication and anonymous speech in increasingly filtered and tracked networks. LaRue also fought the global "book famine" for people with visual and reading disabilities, advocating for an international Treaty of the Blind to reform over-restrictive copyright that hindered the production and distribution of books in accessible formats. Last year, LaRue published a highly influential report on the dangers of widespread state surveillance, arguing that privacy is an essential requirement for true freedom of expression. Before taking his post at the U.N., LaRue spent years working on human rights issues, including bringing genocide cases against the military dictatorship in his native Guatemala in 2000 and 2001.

For nearly 20 years, Rep. Zoe Lofgren has been a crucial voice in Congress on technology, innovation, and free speech—defending the free and open Internet, fighting for privacy and free speech, and blocking dangerous copyright laws while pushing for sensible alternatives. Lofgren rallied congressional opposition to the Stop Online Piracy Act (SOPA), one of the defining moments of Internet activism. Currently, Lofgren is fighting to reform some of the worst legal threats to our digital rights: the Electronic Communications Privacy Act, which regulates our email privacy with outdated standards; the Digital Millennium Copyright Act, which has been used to block phone unlocking, jailbreaking, and our freedom to tinker; and the Computer Fraud and Abuse Act, the law used to unfairly prosecute Aaron Swartz. Lofgren chairs the California Democratic Congressional Delegation, the largest delegation in Congress.

Trevor Paglen is an artist whose work uses methods from science, journalism, and other disciplines in an attempt to "see" the historical moment we live in. Paglen's groundbreaking projects exposing government secrecy have included documenting U.S. government drone flights, using high-end optical systems to photograph top-secret governmental sites, and tracking classified spacecraft in Earth's orbit. In a recent project, Paglen photographed the National Security Agency, the National Reconnaissance Office, and the National Geospatial-Intelligence Agency, releasing the images without restriction for public use. Paglen's visual art has been exhibited at the Metropolitan Museum of Art in New York, the Tate Modern in London, and the San Francisco Museum of Modern Art, among many other places. Paglen is also the author of five books, including Torture Taxi, an early look at the CIA's extraordinary rendition program.

"Each of our Pioneer Award winners has helped the world understand how technology and civil liberties are interwoven into our lives, and each is still working to protect our freedom and fight abuses," EFF Executive Director Shari Steele said. "We are so proud to be able to present them with this year's Pioneer Awards."

Tickets to the Pioneer Awards, which includes access to the general reception and ceremony, are $65 for EFF members and $75 for non-members. Also available are tickets for a special, advance reception featuring some past and present Pioneer Award winners as well as keynoters, the Yes Men. The special advance reception tickets are $250, which includes entry for the ticket holder plus a guest.

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 Aaron Swartz, Glenn Greenwald and Laura Poitras, Tim Berners-Lee, and the Tor Project, among many others.

To buy tickets to the Pioneer Awards: https://supporters.eff.org/civicrm/event/register?id=87

Contact:

Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org

August 20, 2014

Americans Deserve Full Protection of the Fourth Amendment for their Telephone Records, Groups Argue

Washington, DC - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) today filed an amicus brief in Klayman v. Obama, a high-profile lawsuit that challenges mass surveillance, arguing that Americans' telephone metadata deserves the highest protection of the Fourth Amendment.

Larry Klayman, conservative activist and founder of Judicial Watch and Freedom Watch, was among the first plaintiffs to sue the National Security Agency (NSA) over the collection of telephone metadata from Verizon customers that was detailed in documents released by Edward Snowden. In December 2013, Judge Richard Leon issued a preliminary ruling that the program was likely unconstitutional, and the case is currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit.

In the new amicus brief in Klayman v. Obama, the EFF and ACLU lawyers repudiate arguments by U.S. officials that the records are "just metadata" and therefore not as sensitive as the contents of phone calls. Using research and new case law, the civil liberties groups argue that metadata (such as who individuals called, when they called, and how long they spoke) can be even more revealing than conversations when collected en masse.

"Metadata isn't trivial," EFF Legal Fellow Andrew Crocker says. "Collected on a massive scale over a broad time period, metadata can reveal your political and religious affiliations, your friends and relationships, even whether you have a health condition or own guns. This is exactly the kind of warrantless search the Fourth Amendment was intended to prevent."

The brief explains that changes in technology, as well as the government's move from targeted to mass surveillance, mean that the holding of the 1979 Supreme Court case Smith v. Maryland that the government relies on (often called the "third-party doctrine") does not apply. Instead, EFF and the ACLU point to a series of recent key decisions—including the Supreme Court decisions in United States v. Jones in 2012 and Riley v. California in 2014—in which judges ruled in favor of requiring a warrant for electronic search and seizure.

"Dragnet surveillance is and has always has been illegal in the United States," says ACLU Staff Attorney Alex Abdo. "Our country's founders rebelled against overbroad searches and seizures, and they would be aghast to see the liberties they fought hard to enshrine into our Constitution sacrificed in the name of security. As even the president himself has recognized, we can keep the nation safe without surrendering our privacy."

EFF and the ACLU have each litigated numerous First and Fourth Amendment lawsuits related to NSA surveillance and together represent Idaho nurse Anna Smith in a similar case currently on appeal in the Ninth Circuit Court of Appeals called Smith v. Obama. The ACLU is a plaintiff in a case currently pending before the Second Circuit Court of Appeals, ACLU v. Clapper, to be heard on Sept. 2. EFF has two cases—Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA—before the U.S. District Court for Northern District of California.

For the amicus brief:
https://www.eff.org/document/eff-and-aclu-amicus-brief-klayman

Contacts:

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

Related Issues:
August 5, 2014

The Internet's Own Boy Director Brian Knappenberger Releases Short Doc as Senate Introduces New Reform Bill

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San Francisco - The Electronic Frontier Foundation (EFF) today released a video by acclaimed documentarian Brian Knappenberger (The Internet's Own Boy) that explores how and why an unlikely coalition of advocacy organizations launched an airship over the National Security Agency's Utah data center. The short documentary explains the urgent need to rein in unconstitutional mass surveillance, just as the U.S. Senate has introduced a new version of the USA FREEDOM Act.

The video, Illegal Spying Below, is available for re-use under a Creative Commons Attribution 4.0 license here: https://www.youtube.com/watch?v=EsEkmHRbThk

At dawn on June 27, EFF, Greenpeace, and the Tenth Amendment Center launched an airship above the NSA's $1.2-billion data center in Bluffdale, Utah. The 135-foot-long airship carried a banner bearing a downward arrow and the words, "Illegal Spying Below," to bring attention to the facility as well as StandAgainstSpying.org, a website showing how members of Congress voted on legislation that would restrict mass surveillance.

"While it is only one of several data centers, for many people the Bluffdale facility has become a symbol out-of-control, unconstitutional, dragnet surveillance, as well as a threat to the environment," Knappenberger says. "I thought it was important to document this audacious attempt to raise awareness of this secretive facility and pressure Congress to rein in the NSA."

The action prompted thousands of people to contact their members of Congress about NSA surveillance. More than 30 articles were written about the airship, and those articles were collectively shared more than 51,000 times over social media within 72 hours.

"This video shows how a common threat to the freedom of association drew our three organizations together, despite very different missions," EFF Activism Director Rainey Reitman said. "Now it's time for Congress to build a diverse coalition to pass meaningful reform. We launched an airship, they need to land a bill on the president's desk."

Viewers are encouraged to use StandAgainstSpying.org, a site supported by more than 22 organizations, to review their elected representatives' record on surveillance and to send tweets to members of Congress to support meaningful surveillance reform.

Contact:

Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org

About Brian Knappenberger: 

Brian Knappenberger is a writer, director and producer who has created award winning investigative documentaries and feature films for PBS FRONTLINE/World, National Geographic, Bloomberg Television and the Discovery Channel. His new film about the life and death of Aaron Swartz, The Internet's Own Boy, debuted at Sundance and is available through iTunes at https://eff.org/r.cyoz. Knappenberger also runs the award winning production company Luminant Media.

Related Issues:
July 30, 2014

EFF Asks Appeals Court to Protect Free Speech and Innovation in Capitol v. Vimeo

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of advocacy groups have asked a federal appeals court to block record labels' attempt to thwart federal law in Capitol v. Vimeo—a case that could jeopardize free speech and innovation and the sites that host both.

In this lawsuit, the record labels sued online video site Vimeo, alleging that dozens of sound recordings were infringed in videos posted on the site. A ruling from a district court judge earlier this year found Vimeo could be responsible for copyright infringement, and in doing so imposed new, impossibly high standards for websites hosting user-generated content. In an amicus brief filed Wednesday, EFF argues that the decision undermines the safe harbors created by the Digital Millennium Copyright Act (DMCA), and the innovation and expression those safe harbors make possible.

"The safe harbors give websites a clear set of rules. If they follow the law in their response to complaints from copyright owners, then they can predict and manage their exposure to lawsuits and other legal challenges," said EFF Intellectual Property Director Corynne McSherry. "The safe harbors are critical to the Internet's success as a forum for innovative art, discussion, and expression of all kinds, forestalling crippling litigation that would force most websites to close their doors. Yet the district court created new liability, contrary to the law and the intent of Congress."

At issue in Capitol v. Vimeo are videos that Vimeo employees viewed or interacted with, as well as pre-1972 sound recordings, which receive different copyright protection than post-1972 works. Essentially, the decision would seem to offer service providers an impossible choice: scour the website for any content that anyone could argue might include pre-1972 audio and thereby potentially lose safe harbor protections, or risk expensive copyright litigation.

"This is exactly the result that Congress was trying to avoid with the safe harbors—without them service providers unwilling to risk being sued may decide not to host videos and other works with audio at all," said EFF Staff Attorney Vera Ranieri. "We hope the appeals court steps in to reinforce the law and protect free speech and innovation online."

Also joining EFF's brief are the Center for Democracy and Technology, New Media Rights, the Organization for Transformative Works, and Public Knowledge.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-23

Contacts:

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

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

July 25, 2014

Graphic Explains to Court and the Public How the NSA Seizes and Searches Innocent Americans' Communications

San Francisco - The Electronic Frontier Foundation (EFF) today presented a federal court with a detailed explanation of how the NSA taps into the Internet backbone and requested the judge rule that the agency is violating the Fourth Amendment by copying and searching the collected data.

EFF argues there are now enough agreed-upon facts in our lawsuit, Jewel v. NSA, to reach a constitutional conclusion. To shed light on how the mass surveillance violates the Fourth Amendment, EFF crafted a new infographic that details each stage of the surveillance. The graphic is freely available for republication.

"We believe there is enough on the record now for the judge to rule that both the initial mass seizure and the subsequent searching of the content of Internet communications are unconstitutional," EFF Legal Director Cindy Cohn said. "By installing fiber-optic splitters on the Internet backbone, and then searching through tens of millions of Internet communications it collects, the NSA is conducting suspicionless and indiscriminate mass surveillance that is like the abusive 'general warrants' that led the nation's founders to enact the Fourth Amendment."

Jewel v. NSA was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and other AT&T customers. EFF has amassed a mountain of evidence to support the case, including documents provided by former AT&T telecommunications technician Mark Klein showing that the company has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Telecommunications specialist and former FCC technical adviser J. Scott Marcus also has given expert testimony confirming the mass, domestic nature of the collection. Other whistleblowers—including Thomas Drake, Bill Binney and Edward Snowden—have revealed more detail about how this technique works and feeds data into the NSA's massive collection of communications. Over the last year, the government has confirmed that it searches the content of much of what it collects as part of its "upstream" activities without a warrant. Instead, it currently claims the searches are justified under Section 702 of the FISA Amendments Act.

"By sitting on the Internet 'backbone' at key junctures, the government is operating a digital dragnet—a technological surveillance system that makes it impossible for ordinary Americans not suspected of any wrongdoing to engage in a fully private online conversation, to privately read online, or to privately access any online service," Cohn said. "The Constitution was written to ensure that Americans felt secure in their papers, digital or otherwise, and we're asking the judge to rule that the NSA's mass seizures and searches are illegal."

EFF is also currently fighting with the NSA over its failure to preserve evidence, including years of Internet-backbone data it collected, as well as telephone records and Internet metadata. Jewel v. NSA is one of three of EFF's cases aimed at ending NSA spying. The two others are First Unitarian Church of Los Angeles v. NSA and Smith v. NSA.

Note on Graphic: The graphic is available under the Creative Commons Attribution License. Attribute to Electronic Frontier Foundation/Hugh D'Andrade.

For the full brief:
https://www.eff.org/document/plaintiffs-jewel-knutzen-and-waltons-motion-partial-summary-judgment

For the infographic:
https://eff.org/r.4tmr

Contact:

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

July 21, 2014

Add-On for Firefox and Chrome Prevents Spying by Ads, Social Widgets, and Hidden Trackers

San Francisco - The Electronic Frontier Foundation (EFF) has released a beta version of Privacy Badger, a browser extension for Firefox and Chrome that detects and blocks online advertising and other embedded content that tracks you without your permission.

Privacy Badger was launched in an alpha version less than three months ago, and already more than 150,000 users have installed the extension. Today's beta release includes a feature that automatically limits the tracking function of social media widgets, like the Facebook "Like" button, replacing them with a stand-in version that allows you to "like" something but prevents the social media tool from tracking your reading habits.

"Widgets that say 'Like this page on Facebook' or 'Tweet this' often allow those companies to see what webpages you are visiting, even if you never click the widget's button," said EFF Technology Projects Director Peter Eckersley. "The Privacy Badger alpha would detect that, and block those widgets outright. But now Privacy Badger's beta version has gotten smarter: it can block the tracking while still giving you the option to see and click on those buttons if you so choose."

EFF created Privacy Badger to fight intrusive and objectionable practices in the online advertising industry. Merely visiting a website with certain kinds of embedded images, scripts, or advertising can open the door to a third-party tracker, which can then collect a record of the page you are visiting and merge that with a database of what you did beforehand and afterward. If Privacy Badger spots a tracker following you without your permission, it will either block all content from that tracker or screen out the tracking cookies.

Privacy Badger is one way that Internet users can fight the decision that many companies have made to ignore Do Not Track requests, the universal Web tracking opt-out you can enable in your browser. Privacy Badger enforces users' preferences whether these companies respect your Do Not Track choice or not. Advertisers and other third-party domains that are blocked in Privacy Badger can unblock themselves by making a formal commitment to respect their users' Do Not Track requests.

"Users who install Privacy Badger aren't just getting more privacy and a better browsing experience for themselves—they are providing incentives for improved privacy practices and respect for Do Not Track choices across the Internet," said Eckersely. "Using Privacy Badger helps to make the Web as a whole better for everyone."

EFF wishes to thank Professor Franziska Roesner at the University of Washington for exceptional work in enhancing Privacy Badger's widget-handling algorithms.

To install the beta version of Privacy Badger:
https://www.eff.org/privacybadger

Contact:

Peter Eckersley
   Technology Projects Director
   Electronic Frontier Foundation
   pde@eff.org

July 16, 2014

Agency Must Abandon Dangerous Traffic-Discrimination Plan

San Francisco - The Electronic Frontier Foundation (EFF) has told the Federal Communications Commission (FCC) that the agency must abandon its current, dangerous plan to allow for Internet traffic discrimination. Instead, EFF is urging the FCC to reclassify the Internet as a "common carrier" and also to restrict itself to limited and tightly bounded regulation.

In formal comments submitted to the FCC, EFF argues that defending the neutral Internet is critical to protecting new online applications and services – innovations that have made the Internet a global platform for free expression and commerce of every kind.

"An open, neutral, and fast Internet has sparked an explosion of innovation in everything from shopping to the way we exchange ideas and debate potential political change," said EFF Intellectual Property Director Corynne McSherry. "But its founding principles are now under threat. It's time for users to take action to protect our Internet."

The FCC has long promised to take steps to protect the open Internet, but earlier this year the agency announced a net neutrality proposal that would allow for so-called "Internet fast lanes." The plan claims to promote a neutral Internet, but embraces a "commercially reasonable" standard for network management, allowing ISPs to make special deals that would give some services privileged access to subscribers.

EFF believes that market competition should be the first line of defense against abusive ISP practices like non-neutral behavior. But because most Americans have only one or two realistic choices for residential broadband, normal market forces might not prevent discriminatory policies.

In its formal comments, EFF outlines a better way to protect the open Internet. A crucial piece is classifying broadband as a "telecommunications service" instead of an "information service," allowing the FCC to enforce "common carrier" rules like the ones that ensure fair and equal telephone service. At the same time, the FCC should only regulate narrowly, with clear rules. To prevent over-regulation, the FCC should explicitly "forbear" from applying many rules better suited for telephone service than Internet service – an official procedure the FCC has used in the past. In the meantime, the FCC can do more to require real transparency about broadband provider practices, as well as take steps to restore the open access rules that helped spark the early growth of the Internet.

"The FCC's current course is dangerous. It could undermine what makes the Internet the groundbreaking technology that it is," said EFF Staff Attorney Mitch Stoltz. "It's time for the FCC to leave its flawed proposal aside and work on a better plan to support the open Internet."

The FCC is taking comment from the general public until September 10. You can send your views in through EFF's tool at DearFCC.org. So far, hundreds of thousands of people have submitted comments to the FCC, and the agency's site was only working intermittently Tuesday because of the large amount of traffic.

For EFF's full comments to the FCC:
https://www.eff.org/document/effs-formal-comments-fcc

To submit your own comments:
https://dearfcc.org

Contacts:

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

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

Related Issues:
July 16, 2014

Court of Appeals Agrees to Expedite Case Over Telephone Records Collection

Coeur d'Alene, Idaho - The Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU) and the American Civil Liberties Union of Idaho have announced they will join Anna Smith's legal team in her challenge of the government's bulk collection of the telephone records of millions of innocent Americans.

Smith, an emergency neonatal nurse and pregnant mother of two, filed her suit against President Obama and several U.S. intelligence agencies shortly after the government confirmed revelations that the National Security Agency (NSA) was conducting bulk collection of telephone records under Section 215 of the Patriot Act. Smith, a customer of Verizon wireless, one of the companies that was ordered to disclose records to the NSA, argued the program violated her First and Fourth Amendment rights by collecting a wealth of detail about her familial, political, professional, religious and intimate associations.

"When I found out that the NSA was collecting records of my phone calls, I was shocked," said Smith, who is also represented by her husband, Peter J. Smith IV, and Idaho State Rep. Luke Malek. "I have heard of other governments spying indiscriminately on their own citizens, but I naively thought it did not happen in America. I believe who I call, when I call them, and how long we talk is not something the government should be able to get without a warrant. I sued because I believe the Constitution protects my calls from government searches. I am thrilled that the American Civil Liberties Union and Electronic Frontier Foundation agreed to assist us in this case. What Americans can reasonably expect to remain private is an issue of monumental importance."

When U.S. District Judge Lynn Winmill dismissed Smith's case, he expressed grave concerns about the privacy implications of the NSA's surveillance but said that he believed that a 1979 Supreme Court case about targeted surveillance tied his hands. Smith is now appealing to the Ninth Circuit Court of Appeals.

EFF and the ACLU have each litigated numerous First and Fourth amendment lawsuits, including ongoing cases over this very NSA program. The ACLU is a plaintiff in a case currently pending before the Second Circuit Court of Appeals to be heard in early September. EFF has two cases before the Northern California federal court. Smith v. Obama represents another opportunity to halt this mass surveillance.

"Anna Smith proves that a single citizen has the power to stand up for her rights and challenge the government when it tramples them," EFF Legal Director Cindy Cohn said. "EFF is proud to lend our expertise in pursuing her appeal, which could very well be one of the cases that makes it to the Supreme Court."

The court has granted Smith's motion to expedite the case, with the opening brief due on Sept. 2, 2014.

"The call records program needlessly invades the privacy of millions of people," said ACLU Deputy Legal Director Jameel Jaffer. "Even the President has acknowledged that the NSA does not need to collect information about every phone call in order to track the associations of suspected terrorists. Dragnet surveillance on this scale is both unconstitutional and unnecessary."

Contacts:

Dave Maass
   Media Relations Coordinator
   Electronic Frontier Foundation
   press@eff.org

Steve Smith
   Associate Director for Strategic Communications
   American Civil Liberties Union
   media@aclu.org

Peter J. Smith
   Media Relations Coordinator
   psmith@lukins.com

Related Issues:
July 1, 2014

Government Needs to Reveal Decision-Making Process for Publicizing Vulnerabilities

San Francisco - The Electronic Frontier Foundation (EFF) today filed a Freedom of Information Act (FOIA) lawsuit against the NSA and the Office of the Director of National Intelligence (ODNI) to gain access to documents showing how intelligence agencies choose whether to disclose software security flaws known as "zero days."

A zero day is a previously unknown security vulnerability in software or online services that a researcher has discovered, but the developers have not yet had a chance to patch. A thriving market has emerged for these zero days; in some cases governments—including the United States—will purchase these vulnerabilities, which they can use to gain access to targets' computers.

In April 2014, Bloomberg News published a story alleging that the NSA had secretly exploited the "Heartbleed" bug in the OpenSSL cryptographic library for at least two years before the public learned of the devastating vulnerability. The government strongly denied the report, claiming it had a developed a new "Vulnerability Equities Process" for deciding when to share vulnerabilities with companies and the public. The White House's cybersecurity coordinator further described in a blog post that the government had "established principles to guide agency decision-making" including "a disciplined, rigorous and high-level decision-making process for vulnerability disclosure." But the substance of those principles has not been shared with the public.

EFF filed a FOIA request for records related to these processes on May 6 but has not yet received any documents, despite ODNI agreeing to expedite the request.

"This FOIA suit seeks transparency on one of the least understood elements of the U.S. intelligence community's toolset: security vulnerabilities," EFF Legal Fellow Andrew Crocker said. "These documents are important to the kind of informed debate that the public and the administration agree needs to happen in our country."

Over the last year, U.S. intelligence-gathering techniques have come under great public scrutiny. One controversial element has been how agencies such as the NSA have undermined encryption protocols and used zero days. While an intelligence agency may use a zero day it has discovered or purchased to infiltrate targeted computers or devices, disclosing its existence may result in a patch that will help defend the public against other online adversaries, including identity thieves and foreign governments that may also be aware of the zero day.

"Since these vulnerabilities potentially affect the security of users all over the world, the public has a strong interest in knowing how these agencies are weighing the risks and benefits of using zero days instead of disclosing them to vendors," Global Policy Analyst Eva Galperin said.

For the complaint:
https://www.eff.org/document/eff-v-nsa-odni-complaint

Contacts:

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

Eva Galperin
   Global Policy Analyst
   Electronic Frontier Foundation
   eva@eff.org

Related Issues:
June 27, 2014

Flight Promotes StandAgainstSpying.org, New Site Calling on Congress to Act

Bluffdale, UT - The environmental campaigning group Greenpeace, digital rights watchdog Electronic Frontier Foundation (EFF) and the Tenth Amendment Center (TAC) joined forces today to fly an airship over the NSA's data center in Utah to protest the government's illegal mass surveillance program.

Greenpeace flew its 135-foot-long thermal airship over the Bluffdale, UT, data center early Friday morning, carrying the message: "NSA Illegal Spying Below" along with a link steering people to a new web site, StandAgainstSpying.org, which the three groups launched with the support of a separate, diverse coalition of over 20 grassroots advocacy groups and Internet companies. The site grades members of Congress on what they have done, or often not done, to rein in the NSA.

"Rights rise or fall together," Greenpeace Senior IT Campaigner Gary Cook said. "Greenpeace has learned firsthand that people cannot protect their right to clean air and water if our civil rights – including the right to free association and the right to be free of unreasonable searches – are stripped away."

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"The public needs to be brought into the Congressional debate around surveillance reform happening right now," EFF Activism Director Rainey Reitman said. "We're flying an airship over the Utah data center, which has come to symbolize the NSA's collect-it-all approach to surveillance, and demanding an end to the mass spying. It's time for bold action in defense of our privacy."

"Our right to privacy is not a partisan issue. It's a human rights issue," said Michael Boldin, executive director and founder of the Tenth Amendment Center. "This coalition gives great hope for the future because it shows that people across the political spectrum can set aside differences to work together for common cause."

Greenpeace is a co-plaintiff on a lawsuit filed against the NSA by a broad coalition of membership and political advocacy organizations, represented by EFF, for violating their First Amendment right of association by illegally collecting their call records.

Photos of the airship flight are available here under a Creative Commons Attribution license:

https://www.eff.org/files/2014/06/27/8.14.68_utah_airship_flight.1137.jpg

https://www.eff.org/files/2014/06/27/8.14.68_utah_airship_flight.2072.jpg

https://www.eff.org/files/2014/06/27/8.14.68_utah_airship_flight.1051.jpg

https://www.eff.org/files/2014/06/27/8.14.68_utah_airship_flight.1108.jpg

Please attribute to Greenpeace.

Contacts:

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

David Pomerantz
   Greenpeace
   david.pomerantz@greenpeace.org

Andy Stepanian
   Fitzgibbon Media
   andy@fitzgibbonmedia.com
  

Related Issues:
June 27, 2014

Diverse Coalition Reveals Lawmakers Who Aced, Failed and Were Missing in the Debate Over Mass Spying

San Francisco, CA - A coalition of 22 organizations from across the political spectrum today launched StandAgainstSpying.org, an interactive website that grades members of Congress on what they have done, or often not done, to rein in the NSA.

Led by the Electronic Frontier Foundation (EFF), the Sunlight Foundation and Greenpeace, the coalition aims to inspire constituents to hold their elected officials accountable on mass surveillance reform, as well as give lawmakers the opportunity to improve their positions. Using a report card-style format, the grading criteria included whether the legislator was a sponsor of the USA FREEDOM Act or, in the case of the House of Representatives, voted for the "Amash Amendment" to defund NSA mass surveillance. Legislators had multiple avenues for receiving high marks.

Of the 100 senators and 433 representatives included, 241 members (45 percent) received "A" grades. However, 188 members (35 percent) flunked the scorecard, while another 77 members (14 percent) received question marks for taking no measurable action.

Website visitors can enter their zip codes to look up their congressional members' scores. They then are encouraged to tweet directly at their members of Congress, thanking them for defending privacy or asking them to do more in the fight against mass spying. Additionally, all visitors can sign an open letter to President Barack Obama urging him to end the mass surveillance programs immediately, without waiting for Congress to act.

"We must hold members of Congress accountable by making clear to the public who in Congress is standing up for surveillance reform, who is acting as a roadblock, and who is failing to take a stand," EFF Activism Director Rainey Reitman said. "More Americans than ever now think the NSA has gone too far. The American people—and frankly people all over the world—can't wait any longer for Congress to rein in the NSA."

EFF built StandAgainstSpying.org after analyzing the key NSA reform bills in Congress and weighting the prominent proposals on the degree to which they would end mass data collection. Sunlight Foundation technologists populated the site with data from its repository of Congressional actions.

"Just as the Internet has become an avenue for surveillance, it is also a mechanism for the public to hold the government accountable for its unchecked secrecy," said John Wonderlich, policy director at the nonpartisan Sunlight Foundation. "People care about secrecy and state power and are willing to stand up and demand reform."

More than 18 groups and companies with diverse interests joined Greenpeace, EFF, Tenth Amendment Center (TAC) and Sunlight Foundation as partners in launching StandAgainstSpying.org, including Association of Alternative Newsmedia, Bill of Rights Defense Committee, Council on American-Islamic Relations, Demand Progress, Fight for the Future, FreedomWorks, Free Press Action Fund, Freedom of the Press Foundation, Libertarian Party, Liberty Coalition, Open Media, PEN America, reddit, Restore the Fourth, Taskforce.is, TechFreedom and ThoughtWorks.

The launch of the scorecard also coincided with a joint campaign by Greenpeace, EFF and TAC to fly an airship over the NSA data center in Bluffdale, UT, which carried a sign that read "NSA Illegal Spying Below" with a link to StandAgainstSpying.org.

For information and photos of the airship's flight over the data center earlier today will be available shortly.

Contacts:

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

David Pomerantz
   Greenpeace Electronic Frontier Foundation
   david.pomerantz@greenpeace.org

Andy Stepanian
   Fitzgibbon Media
   andy@fitzgibbonmedia.com
  

Related Issues:
June 25, 2014

Justices Rule Changing Technology Demands Limits for Police but Requires Permission from TV Broadcasters

San Francisco - The U.S. Supreme Court issued two big rulings in important technology cases today.

In a groundbreaking decision on cell phone privacy, the court set powerful limits for police searches of cell phones, ruling in two consolidated cases that law enforcement must get a warrant before accessing the data on an arrested person's cell phone. The Electronic Frontier Foundation (EFF) filed amicus briefs in both of the cell phone search cases that were at issue in today's decision.

"These decisions are huge for digital privacy," EFF Staff Attorney Hanni Fakhoury said. "The court recognized that the astounding amount of sensitive data stored on modern cell phones requires heightened privacy protection, and cannot be searched at a police officer's whim. This should have implications for other forms of government electronic searches and surveillance, tightening the rules for police behavior and preserving our privacy rights in our increasingly digital world."

In its opinion, the court confirmed the importance of the warrant requirement, writing "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."

EFF also filed an amicus brief in American Broadcasting Companies v. Aereo, a case where TV-streaming company Aereo was innovating when and how consumers watch television programs. The court decided, incorrectly we believe, that Aereo needed copyright holders' permission to stream free over-the-air broadcast TV shows, creating new uncertainty for cloud storage systems and other new technologies that transmit content.

"With this ruling, the Supreme Court said that technology companies can't rely on the words of the Copyright Act—companies can follow the letter of the law but still get shut down if a court decides that their business is somehow similar to a cable company," said EFF Staff Attorney Mitch Stoltz. "This decision will make it harder for new independent media technologies to get launched and funded without the blessing of major media companies, and that's a loss for all of us."

EFF will have in-depth analysis of both these cases on its Deeplinks blog coming soon.

Contacts:

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

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

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

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

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

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

Legal Briefings Still Under Seal After Government Demands for Secrecy

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

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

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

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

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

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

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

Contact:

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

March 3, 2014

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

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

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

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

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
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

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

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:
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

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