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August 14, 2012

Defendant Pushes to Exclude Cell Phone Location Data Obtained Without a Warrant

San Francisco - A federal district court is poised to determine whether the government can use cell phone data obtained without a warrant to establish an individual's location. In an amicus brief filed Monday, the Electronic Frontier Foundation (EFF) and the Center for Democracy & Technology (CDT) argue that this form of surveillance is just as unconstitutional as the warrantless GPS tracking the U.S. Supreme Court already shot down in this case.

"Location data is extraordinarily sensitive. It can reveal where you worship, where your family and friends live, what sort of doctors you visit, and what meetings and activities you attend," said EFF Senior Staff Attorney Marcia Hofmann. "Whether this information is collected by a GPS device or a mobile phone company, the government should only be able to get it with a warrant based on probable cause that's approved by a judge."

In U.S. v. Jones, FBI agents planted a GPS device on a car and then tracked its position every ten seconds for 28 days without a valid search warrant. In a landmark decision earlier this year, the Supreme Court ruled that this violated the Fourth Amendment. The case is now back in the trial court, where Jones is moving to suppress six months of cell phone location data that government investigators obtained – yet again – without a warrant. In Monday's brief, EFF and CDT argue that the Fourth Amendment doesn't allow government investigators to collect cell phone data to track users' locations over a prolonged period of time without a warrant. This right isn't defeated even if cell phone users disclose their locations to service providers when their phones connect to a cell phone tower.

"As Justice Sonia Sotomayor said in the Jones GPS Supreme Court decision, the idea that privacy rights are forfeited simply by giving them to a third party is 'ill-suited to the digital age,'" said EFF Staff Attorney Hanni Fakhoury. "If the government gets its way here, it could jeopardize any expectation of privacy we have in our private movements."

For the full amicus brief in U.S. v. Jones:
https://www.eff.org/document/amicus-eff-and-cdt

Contacts:

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

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

August 1, 2012

Ignoring Fair Use Doctrine, Authors Guild Suit Tries to Block Valuable Resource

San Francisco - The Electronic Frontier Foundation (EFF) filed an amicus brief today urging a federal court to find that the fair use doctrine shelters Google's Book Search "snippet" project from copyright infringement claims from the Authors Guild. EFF was joined by three associations representing over 100,000 libraries, the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries.

For years, Google has been cooperating with libraries to digitize books for a searchable database available to the public. Google Book Search now includes over 12 million works that users can search for keywords. Results include titles, page numbers, and small snippets of text. Google Book Search has become an extraordinarily valuable tool for librarians, scholars, and amateur researchers of all kinds. For example, librarians surveyed about Google Book Search said the service can help them find valuable research sources inside their own libraries as well as lead them to rare books they can borrow from other institutions. Many librarians say that they have purchased new books for their collections after discovering them through using Google Book Search. However, the Authors Guild argues that its members are due compensation in exchange for their books being digitized and included in the database – even though blocking Google Book Search's digitization wouldn't bring any author any additional revenue.

"Google Book Search is a reference tool that helps people find books. It doesn't take the place of sales," said EFF Fellow Michael Barclay. "The fair use doctrine allows for services like Google Book Search – they cause no economic harm and serve the welfare of the public."

The amicus brief filed today is part of EFF's long involvement in Authors Guild v. Google. In 2009 EFF and a coalition of authors and publishers objected to a proposed broad settlement of the case that would have created a business for Google selling access to whole books, based on the failure of the settlement to protect the privacy of readers. A judge rejected that broad settlement last year. Now Google seeks approval of the more narrow search and snippet project, and EFF agrees that the fair use doctrine applies.

"Google Book Search is a digital update to the old card catalog that helps libraries, helps researchers, and ultimately helps authors reach their audiences," said EFF Legal Director Cindy Cohn. "We hope the court protects Google Book Search – and the researchers and other readers who depend on it – from these meritless copyright claims."

For the full amicus brief in Authors Guild v. Google:
https://www.eff.org/document/amicus-brief-eff-and-library-associations

Contact:

Michael Barclay
   Fellow
   Electronic Frontier Foundation
   michael@eff.org

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

July 27, 2012

Says Statute Likely Violates First Amendment, Federal Communications Decency Act

Seattle - Today, a federal district court judge granted a motion by the Internet Archive to block enforcement of an overbroad Washington state anti-sex trafficking statute that could make online service providers criminally liable for providing access to third parties' offensive materials.

The Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to invalidate SB 6251, a law aimed at combatting advertisements for underage sex workers but with vague and overbroad language that is squarely in conflict with federal law. EFF last week appeared in federal district court in Seattle to argue that the court should grant a preliminary injunction barring enforcement of the criminal statute while the lawsuit is ongoing. The court today agreed with the Internet Archive, finding that the statute likely violated the First, Fifth, and Fourteenth Amendments, the dormant Commerce Clause, and Section 230 of the Communications Decency Act.

"We are grateful that the Court agreed with our concerns about the gravity of the structural problems with this statute," said Senior Staff Attorney Matt Zimmerman. "While everyone involved in this case agrees that sex trafficking is an abhorrent practice, the approach used in this statute to combat the problem is fundamentally and irretrievably flawed. States cannot make those who provide access to online information -- like libraries or Internet Service Providers (ISPs) -- responsible for the illegal behavior of third party users, under threat of criminal penalties. Prosecuting criminals themselves will always be the better approach."

SB 6251 was passed with the hope of criminalizing the dissemination of underage sex trafficking ads and imposing a requirement to confirm the ages of individuals in such ads prior to publication. The law, however, is fraught with problems. As written, the vaguely-worded statute -- making it a felony to "directly or indirectly" provide access to any material that might constitute an "explicit or implicit" commercial offer for sex -- could be read to apply not only to posters but to neutral entities that provide access to online information, including ISPs, Internet cafes, and libraries. This would result in a chilling effect as such entities begin feeling pressured to censor protected online speech in order to safely stay on the right side of an unclear law. The Internet Archive is particularly concerned with any statute that seeks to make intermediaries responsible for content created by third parties -- the Internet Archive itself currently makes available over 150 billion archived web pages from 1996 to the present and has no practical ability to screen its collection for illegal content.

With the statute now enjoined, the plaintiffs (including Backpage.com, which has filed a separate complaint challenging the legality of the law) will now move for a final declaration by the court that the statute is illegal.

For the order granting preliminary injunction barring enforcement of SB 6251:
https://www.eff.org/node/71321

For more on this case:
https://www.eff.org/cases/internetarchive-v-mckenna

Contacts:

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

July 25, 2012

Statute Criminalizes Speech in Violation of the First Amendment

San Francisco - The Electronic Frontier Foundation (EFF) is urging a Washington State judge to dismiss "cyberstalking" charges stemming from rude comments left on a blog. In an amicus brief filed today, EFF argues that the case is based on an unconstitutional law that criminalizes free speech.

The defendant in the case, Brandy Edwards, created an online dating profile under a pseudonym and used it to communicate with Amanda Westmont, the ex-wife of a friend of Edwards. Months later – after the online relationship ended – Edwards posted three critical comments on Westmont's publicly accessible blog, still using the pseudonym. Employing obscenities, the posts referred to Westmont as "full of herself," a "nutcase," and a "whack-job."

Westmont deleted the posts and reported them to the police. A year later, Edwards was charged with two counts of "cyberstalking" under Washington State law. The first charge is based on Edwards anonymously and repeatedly communicating with Westmont for the purpose of "harassing and embarrassing" another person, although the conversation was consensual. The second charge is based on Edwards' use of "obscene" language for the purpose of "harassing or embarrassing." The problem with the Washington State statute is that it outlaws anonymous or obscene speech intended to "embarrass" without defining what that broad term means. In the brief filed today, EFF argues that the law is unconstitutional and the case should be dismissed.

"While we may not like a lot of what people say online, the First Amendment allows for rudeness and other impolitic comments," said EFF Staff Attorney Hanni Fakhoury. "The way this law is written, it could end up criminalizing things like posting a negative review on a website like Yelp."

Venkat Balasubramani of FOCAL PLLC in Seattle, Washington, is EFF's local counsel in the case.

For the full amicus brief:
https://www.eff.org/node/71310/

Contact:

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

Related Issues:
July 16, 2012

Growing Biometric Databases Threaten Privacy and Civil Liberties

Washington, D.C. - Electronic Frontier Foundation (EFF) Staff Attorney Jennifer Lynch will testify this week at a Senate hearing on facial recognition technology and the privacy and civil liberties risks associated with rapidly growing biometric databases. The hearing is set for Wednesday, July 18, at 2:30 p.m.

Facial recognition technology is becoming increasingly sensitive and sophisticated, creating new ways for government and private entities to identify and track people throughout the United States. Meanwhile, databases used by law enforcement, social networking sites, and other entities both public and private are growing larger every day. In her testimony Wednesday, Lynch will discuss how the increasing use of facial recognition technology presents unique risks to Americans' privacy and civil liberties, and what we can do to protect rights and freedoms going forward.

Other witnesses at Wednesday's hearing include Maneesha Mithal, Associate Director of the Federal Trade Commission's Division of Privacy and Identity Protection; Jerome M. Pender, Deputy Assistant Director of the Criminal Justice Information Services Division of the Federal Bureau of Investigation; and Rob Sherman, Facebook's Manager of Privacy and Public Policy. The hearing is part of the Senate Judiciary Committee's Subcommittee on Privacy, Technology, and the Law, chaired by Senator Al Franken.

WHO:

Jennifer Lynch

Staff Attorney, Electronic Frontier Foundation

 

WHAT:

“What Facial Recognition Technology Means for Privacy and Civil Liberties”

U.S. Senate Judiciary Committee, Subcommittee on Privacy, Technology, and the Law

 

WHEN:

2:30 p.m.

Wednesday, July 18

 

WHERE:

Dirksen Senate Office Building, Room 226

Washington, DC 20002 

 

For more on the hearing:

http://www.judiciary.senate.gov/hearings/hearing.cfm?id=daba530c0e84f5186d785e4894e78220

Related Issues:
July 9, 2012

Authors Guild Suit Against Reference Uses Flies in the Face of Fair Use

San Francisco - The Electronic Frontier Foundation (EFF) has joined several national library associations in urging a federal court to find that the fair use doctrine permitted the creation of a valuable digital library.

Although the case was filed long after the more famous Google Books lawsuit, Authors Guild v. HathiTrust presents a similar issue: whether digitization of books without granting full text access to the public is a legal fair use of copyrighted material. For the past seven years, major university libraries have been collaborating with Google to digitize their collections, with one result being the creation of the HathiTrust Digital Library (HDL). Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections. With the exception of some patrons who have disabilities, HDL does not allow for users to access books in their entirety – it simply does a search for keywords and delivers titles and page numbers as results. Nonetheless, the Authors Guild claims its members are due compensation in exchange for being included in the collection. In an amicus brief filed Friday, EFF and the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries argue that the copying of books for a database like the HDL is a clear case of fair use, and obviously in the public interest.

"The HDL doesn't give most users whole copies of a book. Instead, libraries use the HDL to search for books titles that they should borrow or purchase for their users," said EFF Intellectual Property Director Corynne McSherry. "This is a highly detailed map – a reference tool – and doesn't take the place of book sales. This is just the kind of fair use that copyright law is supposed to protect."

For the full amicus brief in The Authors Guild v. HathiTrust:
https://www.eff.org/node/71166

Contact:

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

Related Issues:
July 3, 2012

Suit Was Blatant Retaliation Against a Public Critic

San Francisco - Attorney Charles Carreon dropped his bizarre lawsuit against The Oatmeal creator Matthew Inman today, ending his strange legal campaign against Inman's humorous and creative public criticism of a frivolous cease and desist letter that Carreon wrote on behalf of his client Funny Junk.

The Electronic Frontier Foundation (EFF) and co-counsel Venkat Balasubramani represented Inman in the case. While Carreon's lawsuit was purportedly about whether Inman's online fundraising campaign for the American Cancer Society and the National Wildlife Federation complies with California regulations, it was really a classic SLAPP – a strategic lawsuit against public participation.

"Matthew Inman spoke out against Carreon's threat of a frivolous lawsuit, in a very popular and very public way," said EFF Senior Staff Attorney Kurt Opsahl. "This was nothing more than a meritless attempt to punish Inman for calling attention to his legal bullying. We called him out on this in our briefs, so it's no surprise that Carreon was left with no choice but to dismiss."

The extraordinarily public dispute between Inman and Carreon started in 2011, when Inman published a blog post condemning the website FunnyJunk for posting hundreds of his comics without crediting or linking back to The Oatmeal. A year later, Carreon – the attorney for FunnyJunk – served Inman with a letter claiming the post was defamatory and demanding The Oatmeal pay $20,000 and agree to never speak the words Funny Junk again.

Inman publicly annotated the cease and desist letter with a scathing critique of its facts and logic and posted it on The Oatmeal. Furthermore, instead of paying Carreon's baseless demand for $20,000, Inman decided instead to start a fundraising campaign called Operation BearLove Good, Cancer Bad through the Indiegogo fundraising platform to benefit the American Cancer Society and the National Wildlife Federation. The fundraiser's goal was $20,000, to match Carreon's demand, but the final total was over $200,000.

"Inman sparked a flood of charity donations, and yet Carreon still tried to punish him for making fun of his baseless legal threats by dragging him through the court system," said EFF Intellectual Property Director Corynne McSherry. "We're very pleased that Carreon has seen that his lawsuit had no merit, and hope that this is the end of his abuse of the legal system."

For the notice of voluntary dismissal:
https://www.eff.org/node/71150

For more on this case:
https://www.eff.org/cases/carreon-v-inman

Contacts:

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

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

July 2, 2012

EFF Asks Court to Reject Stale State Secret Arguments So Case Can Proceed

San Francisco - Three whistleblowers – all former employees of the National Security Agency (NSA) – have come forward to give evidence in the Electronic Frontier Foundation's (EFF's) lawsuit against the government's illegal mass surveillance program, Jewel v. NSA.

In a motion filed today, the three former intelligence analysts confirm that the NSA has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers, such as the "secret room" at the AT&T facility in San Francisco first disclosed by retired AT&T technician Mark Klein in early 2006.

"For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people," said EFF Legal Director Cindy Cohn. "Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We're extremely pleased that more whistleblowers have come forward to help end this massive spying program."

The three former NSA employees with declarations in EFF's brief are William E. Binney, Thomas A. Drake, and J. Kirk Wiebe. All were targets of a federal investigation into leaks to the New York Times that sparked the initial news coverage about the warrantless wiretapping program. Binney and Wiebe were formally cleared of charges and Drake had those charges against him dropped.

Jewel v. NSA is back in district court after the 9th U.S. Circuit Court of Appeals reinstated it in late 2011. In the motion for partial summary judgment filed today, EFF asked the court to reject the stale state secrets arguments that the government has been using in its attempts to sidetrack this important litigation and instead apply the processes in the Foreign Intelligence Surveillance Act that require the court to determine whether electronic surveillance was conducted legally.

"The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret," said EFF Senior Staff Attorney Lee Tien. "Yet the government keeps making the same 'state secrets' claims again and again. It's time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance."

For the full motion for partial summary judgment:
https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment

For more on this case:
https://www.eff.org/cases/jewel

Contacts:

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

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

June 26, 2012

Abraham Sofaer Joins EFF in Fight for Return of Property

Alexandria, VA - The Electronic Frontier Foundation (EFF), assisted by retired federal judge and former State Department legal adviser Abraham D. Sofaer, will ask a federal judge Friday to order the return of data to Kyle Goodwin, a Megaupload user who lost all access to his files when the cloud storage service was shut down by the U.S. government.

Megaupload.com and related sites were seized in January as part of a copyright infringement investigation. But in addition to the alleged illegal activity by some Megaupload users, many innocent customers used the service to store legal material. The government has failed to help Goodwin and other lawful Megaupload users get access to their data, despite months of legal wrangling. In Friday's hearing, EFF and Sofaer will ask the court to establish a procedure by which innocent users will be able to reclaim their property, as is routinely required in the seizure of non-digital items.

WHAT:
Motion hearing in USA v. Dotcom

WHEN:
Friday, June 29
10 a.m.

WHERE:
Albert V. Bryan U.S. Courthouse
401 Courthouse Square
Alexandria, VA 22314
Judge Liam O'Grady – Courtroom 700

Contacts:

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

Related Issues:
June 21, 2012

Baseless Suit Claims Online Trademark Infringement and ‘Cyber-Vandalism’

The Electronic Frontier Foundation (EFF) is joining with attorney Venkat Balasubramani of the law firm Focal PLLC to represent The Oatmeal creator Matthew Inman in a bizarre lawsuit targeting the online comic strip’s fundraising campaign in support of the American Cancer Society and the National Wildlife Federation.

“I have a right to express my opinion, whether Mr. Carreon likes it or not,” said Inman.  “While the lawsuit may be silly, the harm it can do is very real.”

Inman started his campaign last week as part of a protest over legal threats he received from the website FunnyJunk.  In 2011, Inman published a blogpost noting that FunnyJunk had posted many of his comics without crediting or linking back to The Oatmeal.  A year later, FunnyJunk claimed the post was defamatory and demanded $20,000 in damages.  Inman crafted a unique response, which included some comic art.  Instead of paying the baseless demand, Inman asked for donations for the American Cancer Society and the National Wildlife Federation.  The campaign raised more than $200,000 so far.  

An attorney for FunnyJunk, Charles Carreon, has now responded with a lawsuit filed on his own behalf.  Carreon’s suit names Inman, the two charities, and the online fundraising platform IndieGoGo, claiming trademark infringement and incitement to “cyber-vandalism.”

“This lawsuit is a blatant attempt to abuse the legal process to punish a critic,” said EFF Intellectual Property Director Corynne McSherry.  “We're very glad to help Mr. Inman fight back.”

June 19, 2012

Broken Patent System Needs Seven Big Fixes to Protect Inventors

San Francisco - Patents are supposed to foster innovation, but modern software patents have been weaponized against inventors. Today the Electronic Frontier Foundation (EFF) is launching "Defend Innovation," a new patent reform project to promote seven fixes for America's patent system.

"The software patent system is broken. Patents are supposed to help promote new inventions and ideas, but software patents are chronically misused to limit competition, quash new tools and products, and shake down companies big and small," said EFF Staff Attorney Julie Samuels. "It's time for Internet users, inventors, activists, and academics to team up and fix the problem."

EFF has posted seven proposals for software patent reform at Defendinnovation.org, including shortening the term for software patents from 20 years to no more than five years, allowing winning parties in litigation to recover fees and costs, and ensuring that infringers who arrive at a patented idea independently aren't held liable, for example. EFF is asking the public to sign on to the proposals and to make additional comments of their own. Additionally, we're calling on individual inventors, lawyers, and academics to give feedback, and we're asking technology companies to continue the conversation with in-person meetings with EFF staff. EFF will take the results from these comments and meetings and create a whitepaper to help educate lawmakers and others about the full reach of the problem and next steps forward to fix it.

"The U.S. Patent Office is overwhelmed and underfunded, and issues questionable patents every day – patents that hurt innovators and consumers alike," said EFF Activism Director Rainey Reitman. "It's time for the technology community to work together to create a blueprint for reforming the broken software patent system."

Help EFF Defend Innovation:
https://defendinnovation.org/

Contacts:

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

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

Related Issues:
June 18, 2012

Expanded International Team Brings New Breadth to Global Digital Rights Issues

San Francisco - Carolina Rossini has joined the Electronic Frontier Foundation (EFF) as its International Intellectual Property Director, bringing more than ten years of experience in global IP law and policy to EFF's international team.

Carolina Rossini is a Brazilian attorney focused on Internet and IP law and policy, cooperation theory, international copyright and patent negotiations, and open licensing in emerging technologies. She is a member of the IP Global Agenda Council for the World Economic Forum, a board member of the Brazilian Internet Institute, and the founder of OER-Brazil, which works with policymakers to enact open access and open educational resource polices in Brazil and beyond. Rossini previously was a Fellow at the Berkman Center at Harvard University coordinating the Industrial Cooperation Project. She also worked on open innovation strategies at the University of Sao Paulo, and was an IP professor at FGV Law School and part of Creative Commons Brazil. Her first six years out of law school were spent working as an in-house transactional telecom and Internet policy lawyer for Terra Networks in Brazil and Spain. Carolina has also worked for the Wikimedia Foundation, shaping strategies to increase community engagement and foundation presence in Brazil.

"We're at a critical moment in international IP policy. People around the world have been galvanized by IP-maximalist trade agreements that threaten basic rights of Internet users," said Rossini. "EFF has always been on the front lines of the fight against these back-room deals, working hard to ensure that technology empowers consumers, creators, innovators, and citizens. I'm extraordinarily happy to join EFF's international team."

Rossini joins an expanded international team that brings new depth to EFF's work on global digital rights issues, including International Freedom of Expression Director Jillian York and Coordinator Eva Galperin, International Rights Director Katitza Rodriguez and Coordinator Rebecca Bowe, and International IP Coordinator Maira Sutton. Gwen Hinze, EFF's former International IP Director, will continue to work with the team as a Fellow.

"In our increasingly interconnected world, protecting digital rights is a global effort," said EFF Executive Director Shari Steele. "We're proud to welcome Carolina to EFF, and we're excited about the work we're doing to protect freedom everywhere."

Contact:

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

Related Issues:
June 15, 2012

EFF Calls Foul on Bogus 'Negligence' Claim

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge today to reject a porn troll's ploy to make a Wi-Fi provider responsible for the purported copyright infringement of another user.

Liberty Media Holdings (LMH) is suing two roommates in New York, alleging the illegal downloading of a pornographic film, even though LMH argues that only one made the infringing copy. Remarkably, LMH claims that the non-downloading roommate is also responsible for copyright infringement, simply because the Internet subscription is in his name and he might have known his roommate sometimes made illegal downloads.

"This theory is absurd," said EFF Staff Attorney Mitch Stoltz. "Decades of copyright law make it clear – to be guilty of infringement you have to do more than just provide an Internet connection – you have to contribute actively to the infringement. This is a ridiculous attempt at expanding copyright law so it's easier for copyright trolls to extract more money from more innocent people."

Copyright trolls attempt to game the legal process, using improper claims and procedures to pressure alleged copyright infringers into settling lawsuits against them even where they have legitimate defenses. If LMH is successful with this latest ploy, Internet users across the country would suffer. Every day, cities, cafes, libraries, schools, and individuals operate open Wi-Fi networks, sharing their connection with the public. This is a valuable public service, part of federal policy to promote universal, convenient access to the Internet, and also promotes public safety. But if Wi-Fi providers could be held responsible for users' behavior, public access to the Internet would be sharply reduced because of liability fears.

"We've all been in a spot when we needed a few quick minutes online – when we were lost, for example, or had to send an urgent email," said EFF Intellectual Property Director Corynne McSherry. "More open Wi-Fi is a public good that we should support. We can't let the copyright trolls bend the law here. All of us who use the Internet throughout the day could lose out."

Thanks to Ray Beckerman for his assistance as local counsel.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-11

Contacts:

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

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

Related Issues:
June 15, 2012

Statute Puts Online Libraries and Other Service Providers at Risk

Seattle - The Internet Archive has filed a federal challenge to a new Washington State law that intends to make online service providers criminally liable for providing access to third parties' offensive materials.

The Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to block the enforcement of SB 6251, a law aimed at combatting advertisements for underage sex workers but with vague and overbroad language that is squarely in conflict with federal law. Procedurally, the Internet Archive lawsuit was filed as an intervention into a similar suit, Backpage.com v. McKenna, filed last week.

"The Internet Archive, as an online library, archives the World Wide Web and other digital materials for researchers, historians, and the general public," said Brewster Kahle, Digital Librarian and founder of the Internet Archive. "We strongly support law enforcement efforts to combat child sex trafficking, but this new law could endanger libraries and other entities that bring access to websites and user-generated content."

SB 6251 was passed with the hope of criminalizing the dissemination of underage sex trafficking ads and imposing a requirement to confirm the ages of individuals in such ads prior to publication. The law, however, is fraught with problems. As written, the vaguely-worded statute – making it a felony to "directly or indirectly" provide access to any material that might constitute an "explicit or implicit" commercial offer for sex – could be read to apply not only to posters but to neutral entities that provide access to online information, including ISPs, Internet cafes, and libraries. This would result in a chilling effect as such entities begin feeling pressured to censor protected online speech in order to safely stay on the right side of the unclear law.

Washington's new statute also squarely conflicts with established federal law – Section 230 of the Communications Decency Act – that was passed with the dual aims of protecting Internet intermediaries from liability for most of what their users do and establishing a clear, national Internet policy to avoid the development of a confusing patchwork of state laws. If allowed to stand, SB 6251 would undermine this important Congressional policy decision that directly fosters free speech, innovation, and the dissemination of knowledge online. It would also set a dangerous precedent allowing individual states to regulate the Internet as each sees fit, establishing a speech-chilling "race to the bottom" with service providers restricting speech according to the most invasive state law on the books. Indeed, in the wake of SB 6251's passage, Tennessee passed a similar bill set to go into effect in July, and New York and New Jersey are considering their own proposed legislation.

"Laws passed with the laudable goal of combatting such a pernicious practice as child sex trafficking can nonetheless inflict collateral damage on the First Amendment," said EFF Senior Staff Attorney Matt Zimmerman. "Legislatures must do more than simply identify serious social ills but also prescribe solutions that are consistent with other important values. Clear legal protections for hosts and disseminators of third party content are bedrock legal principles that allow free speech to flourish online. While well intentioned, laws like SB 6251 simply take the wrong, dangerous approach."

Thanks to Venkat Balasubramani and Focal PLLC for their assitance as local counsel.

For the full motion to intervene:
https://www.eff.org/node/71002

For the full complaint from the Internet Archive:
https://www.eff.org/node/71003

Contact:

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

May 31, 2012

EFF Charts the Privacy and Transparency Practices of the Internet's Biggest Companies

For Immediate Release: Thursday, May 31, 2012

San Francisco - When you use the Internet, you entrust your thoughts, experiences, locations, and more to companies like Google, Twitter, and Facebook. But what happens when the government asks these companies to hand over your private information? Will the company stand with you? Today, the Electronic Frontier Foundation (EFF) releases its second annual "When the Government Comes Knocking, Who Has Your Back?" report – this time as a white paper and chart tracking some of the Internet's biggest service providers on their public commitments to their users' privacy and security.

Increasingly, federal law enforcement agents are demanding that Internet companies provide their users' data as part of government investigations – sometimes fairly, sometimes unfairly. EFF's report examines 18 companies' terms of service, privacy policies, public representations, advocacy, and courtroom track records, awarding them gold stars for best practices in categories like "tell users about government data demands" and "fight for user privacy in courts."

"This year, we saw a big increase in the number of companies making a public promise to their users to inform them whenever possible when the government comes knocking," said EFF Legal Director Cindy Cohn. "This notice gives users the chance to fight back against government overreaches and to defend themselves if investigators want to unfairly fish around in their personal information. It appears that promising to notify your customers of government data demands is on the way to becoming an industry standard for responsible companies."

EFF first published its chart last year to recognize exemplary practices by some companies. We were pleased to see that Facebook, Dropbox, and Twitter have each upgraded their practices in the past year. Sonic.net, an ISP based in Santa Rosa, California, earned a gold star in every category. Cloud storage sites Dropbox and SpiderOak and business networking site LinkedIn also fared well, earning recognition in three categories each.

"Online service providers are the guardians of some of your most intimate data – everything from your messages, to location information, to the identities of your family and friends," said EFF Senior Staff Attorney Marcia Hofmann. "We wanted to acknowledge companies that are adopting best practices and taking exceptional steps to defend their users against government overreaches in the courts and in Congress."

In addition to upgrading their own practices, many Internet companies have joined with civil liberties groups into a powerful coalition working to clarify outdated privacy laws so that there is no question about when the government needs a warrant to access sensitive users data.

"This year, we saw a number of major Internet companies join the Digital Due Process coalition, which is aimed at getting Congress to make lasting improvements in the laws that protect our electronic privacy," said EFF Activism Director Rainey Reitman. "This should be a wakeup call to Congress to clarify outdated laws so there is no question that government agents need a court-ordered warrant before accessing sensitive location data, email content, and documents stored in the cloud."

For the full report "When the Government Comes Knocking, Who Has Your Back?":
https://www.eff.org/pages/who-has-your-back

Last year's report can be viewed here:
https://www.eff.org/pages/when-government-comes-knocking-who-has-your-back-2011

Contacts:

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

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

Related Issues:
May 29, 2012

Internet Forum Can't Be Held Liable for What Commenters Post on Online

San Francisco - The Electronic Frontier Foundation (EFF) asked a judge today to block a reality TV star's attempts to censor critical comments about her company on a popular online fashion blog.

Corri McFadden, star of the VH1 show "House of Consignment," filed suit against Purseblog.com in a California federal court after a commenter accused McFadden's company, eDrop-Off, of "shill bidding" – making bogus bids to inflate the prices of designer goods the company sells in online auctions. But California has strong legal protections against lawsuits filed to chill participation in publicly significant discussions, and now McFadden is asking the court in California to let her dismiss the lawsuit without any penalty so that she can pursue it in a state with more favorable law. In a friend-of-the-court brief filed Friday, EFF urged the court in California not to let McFadden off the hook.

"This is a classic SLAPP suit – strategic litigation against public participation – and McFadden should have to face California's tough anti-SLAPP law, which lets defendants move to strike frivolous lawsuits and recover costs and fees if they win," said EFF Senior Staff Attorney Marcia Hofmann. "The plaintiffs set the stage by choosing to file their suit in California. The court should finish the case there as well, protecting Purseblog.com's speech rights by applying California law."

Additionally, the federal Communications Decency Act (CDA), as interpreted by the Ninth U.S. Circuit Court of Appeals, contains uniquely strong protections for free speech online, shielding hosts of online forums from liability for the speech of their users.

"Congress decided that speakers – not their soapboxes – should be responsible for what they say," said EFF Senior Staff Attorney Matt Zimmerman. "That's why the Internet hosts such an incredible diversity of content today. If sites could be held legally responsible for anything anyone said on them, no one would allow users to post controversial views online."

For the full brief in eDrop-Off v. Burke et al.:
https://www.eff.org/document/amicus-brief-9

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

May 23, 2012

New White Paper from EFF and the Immigration Policy Center Outlines Privacy and Security Concerns

San Francisco - Today the Immigration Policy Center (IPC) and the Electronic Frontier Foundation (EFF) release "From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond." The paper outlines the current state of U.S. government collection of biometric information and the problems that could arise from these growing databases of records. It also points out how immigrant communities are immediately affected by the way this data is collected, stored, and shared.

There is a growing push to link biometric collection with immigration enforcement. The U.S. Department of Homeland Security (DHS) takes approximately 300,000 fingerprints per day from non-U.S. citizens crossing the border into the United States, and it collects biometrics from noncitizens applying for immigration benefits and from immigrants who have been detained. In addition, state and local law enforcement officers regularly collect fingerprints and DNA, as well as face prints and even iris scans. All of these government databases are growing and are being increasingly interconnected. For example, the Secure Communities program takes the fingerprints of people booked into local jails, matches them to prints contained in large federal immigration databases, and then uses this information to deport people.

"Some people believe biometrics and databases are the silver-bullets that will solve the immigrant enforcement dilemma. But biometrics are not infallible, and databases contain errors. These problems can result in huge negative consequences for U.S. citizens and legal immigrants mistakenly identified," said Michele Waslin, Senior Policy Analyst at the IPC.

"Biometric data collection can lead to racial profiling and can disproportionately affect immigrants," said EFF Staff Attorney Jennifer Lynch. "It also gives the government a new way to find and track people throughout the United States. The government needs to act now to limit unnecessary biometric collection and address the serious privacy issues regarding the amount and type of data collected, as well as what triggers that data collection, with whom the data is shared, and the security of that data."

For the full white paper "From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities":
https://www.eff.org/document/fingerprints-dna-biometric-data-collection-us-immigrant-communities-and-beyond

For "From Fingerprints to DNA: By the Numbers":
https://www.eff.org/document/fingerprints-dna-numbers

For more on biometrics:
https://www.eff.org/issues/biometrics

Contacts:

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

Related Issues:
May 23, 2012

Bogus Copyright Infringement Claims Could Add Up to Fewer Choices, Higher Prices

New York - The Electronic Frontier Foundation (EFF) is urging a federal judge not to let television networks squash an innovative streaming service with a bogus copyright infringement lawsuit.

In an amicus brief filed today, EFF and Public Knowledge asked the court to block a preliminary injunction that could prevent Aereo Inc. from establishing a customer base in New York City, arguing that shutting down the service at this early stage sends a dangerous message to other start-up companies working to improve consumers' TV viewing experience.

"The threat of lengthy litigation would discourage any business from working to add value to the television viewing experience, leaving the market in the hands of a few established players," said EFF Staff Attorney Mitch Stoltz. "Remember, these are the same folks who tried to keep VCRs off the market years ago, and more recently fought viciously against remote DVRs, which allow cable subscribers access to content they've already bought but is stored elsewhere. This is yet another attempt by TV networks to profit from, control, or stop new technology they didn't think of first."

Aereo lets users in New York watch local channels by renting their own small antenna located at the Aereo facility, with the signal from the antenna sent over the Internet to that single user. The TV networks argue that this somehow constitutes a public performance and therefore infringes their copyright, even though it would be perfectly legal for someone to install their own antenna and run a wire to a TV set without paying a fee to anyone.

"All Aereo is doing, conceptually, is moving the rabbit ears from your roof to theirs," said EFF Senior Staff Attorney Kurt Opsahl. "Yet the TV networks want to play games with the law to get a cut of the profits or shut it down. We're asking the court to consider the legal and customary rights of television viewers, as well as the threats a preliminary injunction could bring to future innovation."

For the full brief in WNET v. Aereo Inc.:
https://www.eff.org/node/70851

Contacts:

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

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

May 9, 2012

Copyright Office to Hear Public Testimony in Washington, D.C. and Los Angeles

Washington, D.C. and Los Angeles - Experts from the Electronic Frontier Foundation (EFF) will testify at public hearings held by the U.S. Copyright Office this month, urging officials to renew and expand the critical exemptions to the Digital Millennium Copyright Act (DMCA) that the Copyright Office granted in 2009 in response to EFF's requests to protect the rights of American consumers who modify electronic gadgets and make remix videos.

EFF Staff Technologist Dan Auerbach will testify on Friday, May 11th, in Washington, D.C., demonstrating the technology of "jailbreaking" – liberating gadgets to run operating systems and applications from any source, not just those approved by the manufacturer. On Thursday, May 17th, in Los Angeles, EFF Senior Staff Attorney Marcia Hofmann will testify about why it's important to clarify the legality of jailbreaking smart phones, tablets, and videogame consoles. At the same hearing in Los Angeles, EFF Intellectual Property Director Corynne McSherry will testify to why artists and critics deserve legal protection for creating and using short excerpts of video content to make new works of commentary and criticism. Hofmann and McSherry will testify again on June 4 and June 5 in Washington, D.C., to respond to opponents of EFF's exemption requests.

EFF's testimony is part of the Copyright Office's rulemaking process, convened every three years to consider exemptions to the DMCA's prohibitions on "circumventing" digital rights management (DRM) and "other technical protection measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Exemptions are meant to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials. In 2009, EFF won exemptions for jailbreaking smartphones and for artists who remix videos. EFF filed new exemption requests in 2011, seeking to renew and expand the 2009 rulings.

WHAT:

Public hearings on DMCA Rulemaking

WHEN AND WHERE:

May 11 – 10 a.m.
Copyright Hearing Room, LM-408
James Madison Building, Library of Congress
101 Independence Ave. SE.
Washington, D.C.

May 17 – 9 a.m.
Moot Courtroom, Room 1310
University of California, Los Angeles, School of Law
405 Hilgard Avenue
Los Angeles, CA

For more on the DMCA rulemaking and EFF's testimony:
https://www.eff.org/deeplinks/2012/05/2012-dmca-rulemaking-primer

Contact:

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

Related Issues:
May 7, 2012

Speculative Claims Against Yelp Barred by Federal Law

San Francisco - The Electronic Frontier Foundation (EFF) is urging a federal appeals court to block an attempt by disgruntled businesses to make an end-run around the federal law that protects Yelp and other online forums from liability for their users' reviews. In a friend-of-the-court brief filed with the U.S. Court of Appeals for the 9th Circuit Friday, EFF argues that the strong protections for hosts of forums in Section 230 of the Communications Decency Act (CDA) must be upheld to foster free speech online.

CDA 230 protects online service providers from liability and lawsuits over user-generated content, except in very narrow circumstances where the providers created or developed content themselves. In this case, several businesses filed suit against Yelp, claiming without factual support that the popular review site manipulated and manufactured reviews in order to coerce businesses to advertise on the website. A lower court already found that mere speculation of interference with public reviews was insufficient to evade the broad protection Congress created for online forums, and granted Yelp's motion to dismiss the case. In its amicus brief, EFF argued that lowering the standards for when a forum like Yelp has to be dragged through litigation would effectively chill online speech.

"The broad protections provided by CDA 230 are one of the main reasons we have so much speech online," said EFF Senior Staff Attorney Matt Zimmerman. "If online service providers like Yelp could be held liable for material posted by any one of their millions of users merely upon thin claims of 'manipulation,' providers would feel pressured to censor or eliminate forums altogether. The result is fewer places for people to participate online and a loss all of us who rely on user reviews and other user-generated material."

"The goal of Congress in enacting CDA 230 was clear: to ensure the Internet is a robust platform for users' free speech," said Senior Staff Attorney Marcia Hofmann. "Users post millions of reviews on Yelp each year, but sites like this wouldn't exist without CDA 230's protections. We're asking the appeals court to make sure that sites like Yelp continue to thrive and remain vigorous forums for Internet users to share opinions and recommendations."

For the full amicus brief in Levitt v. Yelp:
https://www.eff.org/document/amicus-brief-7

Contacts:

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

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

April 18, 2012

EFF White Paper Outlines How Businesses Can Avoid Assisting Repressive Regimes

San Francisco - It's time for technology companies that sell surveillance and filtering equipment to step up and ensure they aren't helping governments in committing human rights violations. In a white paper released today entitled "Human Rights and Technology Sales," EFF outlines how corporations can avoid assisting repressive regimes.

The paper calls on companies to increase transparency of their dealings with potentially repressive regimes and to implement "Know Your Customer" standards for auditing technology sales, including review of the purchasing government's technical questions and customization requests. If the review indicates that the technologies or transactions may be used to facilitate human rights violations, the company should refrain from participating.

"Authoritarian governments around the world often rely on technologies built in North America and Europe to spy on their citizens – including listening in to cell phone calls, scanning crowd photographs with facial recognition tools, and monitoring mobile networks with voice recognition technology. These can have deadly ramifications for activists and others in repressive regimes," said EFF Director for International Freedom of Expression Jillian York. "We're asking companies to take responsibility for the uses that governments make of their products, instead of acting like 'repression's little helper.'"

There is ample evidence that sophisticated technology facilitates human rights abuses, and dozens of corporations are implicated. For example, Narus – a subsidiary of The Boeing Company – was revealed to have sold sophisticated surveillance equipment to Egypt, and California's Blue Coat Systems' equipment was being used in Syria. On the other hand, companies such as Websense have implemented programs to prevent their tools from being complicit in human rights abuses.

In the meantime, Congress has taken note of the problem. A House subcommittee has passed the Global Online Freedom Act (GOFA), which would require disclosure from companies about their human rights practices and limit the export of technologies that "serve the primary purpose of" facilitating government surveillance or censorship to countries designated as "Internet-restricting."

"GOFA is far from perfect, but it's an important step in protecting human rights and freedom of expression around the world," said EFF Activist Trevor Timm. "Tools available today can allow governments to track and spy every person in a country. Other software can block entire categories of websites, preventing citizens from accessing vital information. Technology companies have a responsibility to try to prevent their services from being used in this way."

For the full white paper "Human Rights and Technology Sales":
https://www.eff.org/document/human-rights-and-technology-sales

For more on the Global Online Freedom Act:
https://www.eff.org/deeplinks/2012/04/global-online-freedom-act

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

Trevor Timm
   Activist
   Electronic Frontier Foundation
   trevor@eff.org

April 16, 2012

Internet Advocacy Coalition Announces Twitter Campaign to Fight Privacy-Invasive Bill

San Francisco - Civil liberties organizations are launching a week of Internet-wide protests today against the Cyber Intelligence Sharing and Protection Act of 2011 (CISPA), the controversial cybersecurity legislation that would negate existing privacy laws and allow companies to share user data with the government without a court order.

The coalition is urging the public to take part in a Twitter protest directed at their lawmakers. The Electronic Frontier Foundation (EFF) has created an interactive tool for people to find their representatives and their Twitter handles, and to share how CISPA's privacy invasions would affect their day-to-day lives.

"CISPA would allow ISPs, social networking sites, and anyone else handling Internet communications to monitor users and pass information to the government without any judicial oversight," said EFF Activism Director Rainey Reitman. "The language of this bill is dangerously vague, so that personal online activity – from the mundane to the intimate – could be implicated."

The campaign will use the hashtags #CongressTMI and #CISPA. In addition to the Twitter protest, organizations are planning letters of opposition and publishing articles outlining the civil liberties implications of the bill.

"Some people believe that we have to sacrifice civil liberties in order to shore up cybersecurity, but that's misunderstanding both issues," said EFF Senior Staff Attorney Lee Tien. "Giving companies carte blanche to bypass federal law does not make us safer – it puts us at more risk."

CISPA is sponsored by Representatives Mike Rogers (R-MI) and C.A. “Dutch” Ruppersberger (D-MD).  Stop Cyber Spying Week participants are calling on Congress to reject legislation that sacrifices civil liberties in the name of security, and specifically to reject any legislation that:
* Uses dangerously vague language to define the breadth of data that can be shared with the government.  
* Hands the reins of America’s cybersecurity defenses to the NSA, an agency with no transparency and little accountability.
* Allows data shared with the government to be used for purposes unrelated to cybersecurity.

Participating groups include Access Now, American Civil Liberties Union, American Library Association, Avaaz, Bill of Rights Defense Committee, Canadian Internet Policy and Public Interest Clinic, Center for Democracy and Technology, The Constitution Project, Demand Progress, Electronic Frontier Foundation, Fight for the Future, Free Press, OpenMedia.ca, Open the Government, Privacy Rights Clearinghouse, Reporters Without Borders, Reverse Robo Call, Sunlight Foundation, Techdirt, and TechFreedom.

To take action against CISPA:
http://cyberspying.eff.org/

Contact:

Access Now
   Mike Rispoli
   Campaign and Media Strategy
   mike@accessnow.org

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

Fight for the Future
   Tiffiniy Cheng
   Co-Director
   tycheng@gmail.com

Free Press Action Fund
   Jenn Ettinger
   Media Manager
   jettinger@freepress.net

Reporters Without Borders
   Delphine Halgand
   DC Representative
   dcdesk@rsf.org

Reverse Robo Call
   Shaun Dakin
   CEO
   shaun@reverserobocall.com

Sunlight Foundation
   Gabriela Schneider
   Communications Director
   gschneider@sunlightfoundation.com

Related Issues:
April 11, 2012

Agencies Agree to Pay Damages, Delete Seized Data

Berkeley, CA - Two radical groups have settled their lawsuits over an armed, over-broad police raid after the law enforcement agencies agreed to delete improperly seized computer data and pay $100,000 in damages and attorney's fees. Moreover, the University of California-Berkeley Police Department (UCBPD) acknowledged that at the time of the raid one of the groups qualified for federal protections designed to protect journalists, publishers, and other distributors of information from police searches, despite the police's persistent denial of that status throughout the lawsuit.

UCBPD and the FBI raided the building housing the Long Haul, an alternative library, Infoshop and community center in Berkeley, in August of 2008 as part of an investigation into e-mail threats sent to UC animal researchers that allegedly came from public-access computers in the building. Agents conducted an armed search of both public and private rooms – cutting or unscrewing locks that protected private offices – and removed every computer from the building. The raid team seized clearly unrelated computers from behind the locked doors of the Slingshot collective, a division of Long Haul that has published the Slingshot newspaper for 24 years as well as the Slingshot Organizer, and from the office of East Bay Prisoner Support (EBPS), which published materials about prisoners' struggles. However, the federal Privacy Protection Act specifically protects publishers from search and seizure except in narrow, unrelated circumstances. The Long Haul and EBPS collectively filed suit and were represented by the Electronic Frontier Foundation (EFF) and the ACLU of Northern California.

As part of today's settlement, the UCPD:

* Conceded that it has no information that either the Long Haul or EBPS was connected with the e-mail threats;
* Acknowledged that the Long Haul was at the time of the raid a publisher protected by the Privacy Protection Act, designed to prevent against such searches; and
* Agreed to expand the scope and coverage of improved training regarding the provisions of the Privacy Protection Act that were first imposed in the wake of the 2008 raid. 

Both the UCPD and the FBI also agreed to:

* Destroy the data they seized as part of the raid; and
* Pay a total of $100,000 in damages and attorneys’ fees caused by the raid.

"We hope that in view of this lawsuit and this favorable settlement, law enforcement will think twice before they raid other radical spaces on flimsy pretenses," said Jesse Palmer, a long-time participant in Long Haul operations. "The raid was an abuse of power. The police refused to show Long Haul representatives a copy of the search warrant, prevented anyone from watching what they were taking during the raid, and preferred to cut locks rather than accept our offer to unlock doors. The raid was a fishing expedition and an attempt to intimidate and harass radicals undertaken by the FBI and UCPD, but as the settlement demonstrates, it was the police who broke the law. We've done nothing wrong."

"I have no faith that this agreement will change the attitudes or behaviors of the UC police or the FBI," said EBPS representative Patrick Lyons. "From kicking in our door and stealing our stuff, to the now-infamous UC Davis pepper spray incident, it is clear that the UC cops are at war with radicals, anarchists, and activists, and that will not change. I do, however, think that it is important that when they attack us, we fight back. I sincerely appreciate the hard work of EFF and the ACLU because in this situation our best weapon was our ability to make the UC police and FBI spend huge amounts of money defending their actions and concealing their agenda."

Long Haul and EBPS plan to donate $500 of their portion of the settlement to the Occupy Oakland Anti-Repression Committee to assist others targeted by the police for their political beliefs.

The Long Haul is an all-volunteer collective that operates a community space with free computer access, a historical archive, and a lending library of radical books to members of the public at its Infoshop in Berkeley, California. They have been at their current location since 1979 and have been a 501(c)(3) tax exempt educational organization since 1994. EBPS publishes a newsletter of prisoners' writings and distributes literature to prisoners.

For the full settlement agreement:
https://www.eff.org/document/settlement-agreement-0

Contacts:

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

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

Related Issues:
April 10, 2012

Innocent Customers Deserve to Have Their Files Returned

Alexandria, VA - The Electronic Frontier Foundation (EFF) will ask a federal judge on Friday to establish a process that would allow lawful users of Megaupload's cloud storage service to get their files back. The hearing in USA v. Dotcom is set for 9 a.m. on April 13th at the federal courthouse in Alexandria, Virginia.

In January of this year, the U.S. government shut down Megaupload.com and related sites as part of a copyright infringement investigation. But in addition to the alleged illegal activity by some users of Megaupload, there were also innocent customers that used the service to store lawful material – users who have been blocked from accessing their data for months. At Friday's hearing, EFF Staff Attorney Julie Samuels will argue that Megaupload's customers deserve a court-approved procedure to retrieve their property before it's deleted.

WHAT:
Motion hearing in USA v. Dotcom

WHEN:
Friday, April 13
9 a.m.

WHERE:
Albert V. Bryan U.S. Courthouse
401 Courthouse Square
Alexandria, VA 22314
Judge Liam O'Grady - Courtroom 700

Contacts:

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

Related Issues:
April 10, 2012

Ninth Circuit Blocks Dangerous Interpretation of Federal Statute

San Francisco - A federal appeals court today rejected a dangerous interpretation of the federal anti-hacking law, dismissing charges that would have criminalized any employee's use of a company's computers in violation of corporate policy.

The Electronic Frontier Foundation (EFF) filed an amicus brief in this case, U.S. v. Nosal, urging the court to come to this conclusion as part of its ongoing work to ensure fair application of the federal Computer Fraud and Abuse Act (CFAA).

"Basing criminal liability on violations of private computer use policies can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved," said the opinion by Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals.

In Nosal, the government prosecuted an ex-employee of an executive recruiting firm on the theory that he induced current company employees to use their legitimate credentials to access a proprietary database and provide him with information in violation of corporate computer-use policy. The government claimed that the violation of policy constituted a violation of the CFAA, a law with criminal penalties.

EFF argued in its amicus brief that turning mere violations of company policies into computer crimes could potentially create a massive expansion of the law – making millions of law-abiding workers criminals for innocent activities like sending a personal e-mail or checking sports scores from a work computer, and leaving them vulnerable to prosecution at the government's whim. The court agreed in an en banc decision, replacing a ruling last year in which a three-judge panel found that disloyal employees who breach computer use policies run afoul of the CFAA.

"We shouldn't have to live at the mercy of our local prosecutor," said the opinion. "Employees who call family members from their work phones will become criminals if they send an email instead. Employees can sneak in the sports section of the New York Times to read at work, but they'd better not visit ESPN.com."

"This is an important victory for all Americans who use computers at work," said EFF Senior Staff Attorney Marcia Hofmann. "Violating a private computer use policy shouldn't be crime, just as violating a website's terms of use shouldn't be a crime. These policies are often vague, arbitrary, confusing and contradictory. Putting people on the hook for criminal liability when they violate these agreements would leave millions of law-abiding computer users vulnerable to federal prosecution."

"EFF has been fighting these aggressive government hacking arguments for years," said EFF Staff Attorney Hanni Fakhoury. "We're happy to see the court recognize that the government overreached here, and it issued a thoughtful decision that protects the rights of users."

Full for the opinion in U.S. v. Nosal:
https://www.eff.org/node/70244

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

March 30, 2012

Case Raises Key Questions About User Rights in Cloud-Based Storage

San Francisco - A small business owner who used Megaupload's cloud-based storage system as part of his daily operations has asked a federal court to establish a process that would allow him and other lawful Megaupload users to get their files back. The procedure would help rectify the collateral damage caused by the government's seizure of Megaupload.com as part of a copyright infringement investigation.

The Electronic Frontier Foundation (EFF) represents Kyle Goodwin, who runs a business reporting on high school sporting events in Ohio. Goodwin stored his video footage on Megaupload's servers as a backup to his hard drive. In January, the FBI shut down Megaupload.com and executed search warrants on the company's servers, locking out all Megaupload customers in the process. When Goodwin's hard drive crashed, he could not get access to any of his own video files, which he needed to conduct his business.

"The court can help make Mr. Goodwin – an innocent party here – whole again," said EFF Staff Attorney Julie Samuels. "With government seizures growing, we're likely to see more and more cases like this, where lawful customers of a cloud service lose property in a federal copyright case. We're hoping the court will set an important precedent to protect users from overzealous government agents."

Megaupload was leasing some of its servers from hosting company Carpathia, and after the government finished its examination of the servers, it told Carpathia it was free to delete the contents. This week, Carpathia moved for a protective order that would allow for an approved procedure for customers to retrieve their files before deletion. The brief EFF filed today was in support of that motion, urging the judge to expedite the return of rightful property to Goodwin and other lawful Megaupload users.

"Mr. Goodwin has suffered a significant loss to his business, through no fault of his own." said EFF Intellectual Property Director Corynne McSherry. "Megaupload's innocent users deserve an opportunity to get their important data back before it's destroyed forever."

EFF was assisted by co-counsel Abraham Sofaer of the Hoover Institution and John Davis of Williams Mullen.

For the full brief:
https://www.eff.org/document/brief-interested-party-kyle-goodwin

Contacts:

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

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

Related Issues:
March 22, 2012

EFF Argues that Subpoenas Threaten Users' Anonymous Speech Rights

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court Wednesday to block administrative subpoenas from the Securities and Exchange Commission (SEC) that would reveal the identities of three pseudonymous Gmail users without meeting the legal standards for identifying anonymous speakers.

In an amicus brief filed in the U.S. Court of Appeals for the Ninth Circuit, EFF argued that the SEC failed to support its subpoenas with sufficient evidence to demonstrate a compelling need for the information that would overcome the emailers' constitutional right to speak anonymously.

"The First Amendment provides a baseline level of protection for speakers who choose to communicate their messages to the world anonymously or pseudonymously," said EFF Senior Staff Attorney Matt Zimmerman. "Lawbreakers may not hide behind the First Amendment, but investigating agencies cannot force companies like Google to disclose the identities of their customers who are speakers without demonstrating the investigation is legitimate. Here, the SEC has failed to provide anything but speculation that a law was even broken."

The SEC's subpoenas are part of an investigation into a potential "pump and dump" scheme involving Jammin' Java, Inc. which saw its stock price soar and plummet within a short period of time in late 2010 and early 2011. The SEC has argued that "online newsletters" potentially containing "materially misleading information" were distributed around the time of the stock price fluctuation. However, the SEC has not explained why it has targeted the Gmail account holders, nor has it even identified any newsletters in question, much less link the users to any allegedly illegal activities. In Wednesday's amicus filing, EFF explained why it would be particularly dangerous to allow government agencies the ability to investigate speakers without demonstrating a legitimate need for the information.

"Agencies like the SEC wield enormous powers to intrude into the private lives of Americans," Zimmerman said. "Especially because such agencies can ordinarily issue subpoenas without the direct oversight of the courts, courts must ensure that First Amendment rights be given full effect."

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

For more on anonymity:
https://www.eff.org/issues/anonymity

Contact:

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

March 19, 2012

Recent Supreme Court Ruling Brings New Questions About Long-Term Surveillance

San Francisco - The Electronic Frontier Foundation (EFF) joined the American Civil Liberties Union (ACLU) Foundation and the ACLU Foundation of Texas Friday in backing a judge who required a search warrant before approving the seizure of two months of cell phone location data by law enforcement.

In this case, the government asked a magistrate judge to approve a request to two cell phone companies for 60 days of cell phone location records as part of a routine law enforcement investigation. The judge denied the request, saying it was necessary for the government to get a warrant based on probable cause before it could obtain the records. In an amicus brief filed in the U.S. Court of Appeals for the 5th Circuit, EFF argues that the judge was correct, as getting a warrant is essential to ensuring Fourth Amendment protections.

"The Supreme Court ruled earlier this year in United States v. Jones that the GPS tracking of a vehicle without a warrant violates the reasonable expectation of privacy guaranteed by the Fourth Amendment to the Constitution. This is a very similar situation," said EFF Staff Attorney Hanni Fakhoury. "People carry their cell phones with them wherever they go, all day long. Records of where we've been can reveal information about our health, our religion, our hobbies, and our politics. As technology advances, these records will become only more detailed and intrusive."

The government claims that cell phone users voluntarily disclose their physical location to their service provider every time their phone connects to a cell phone tower, meaning they give up their privacy rights under the "third-party doctrine." However, this theory would undermine privacy in nearly any networked communication. In fact, in the Jones case, Justice Sonia Sotomayor expressed concern about the third-party doctrine, writing that it was "ill-suited to the digital age."

"The judge in this case has a right to demand probable cause before allowing access to this sensitive information," Fakhoury said. "This is a powerful tool that police should be able to use in criminal investigations, but only after they can get a warrant based on probable cause."

The Center for Democracy and Technology (CDT) and the National Association of Criminal Defense Lawyers (NACDL) also signed on to Friday's brief.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-us-court-appeals-5th-circuit

For more on cell phone tracking:
https://www.eff.org/issues/cell-tracking

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

March 13, 2012

Pornographic Film Companies Abusing the Law to Get Quick Settlements

San Francisco - The Electronic Frontier Foundation (EFF) is backing Internet service providers (ISPs) in an effort to quash subpoenas issued in a predatory lawsuit over the alleged illegal downloading of adult material.

The American Civil Liberties Union Foundation and the ACLU of the Nation's Capitol joined EFF in the amicus brief submitted today, arguing that AF Holdings unfairly sued more than a thousand unnamed Internet users in the District of Columbia, even though the users were located all over the country. AF Holdings argues that it is allowed to obtain the identities of the ISPs' customers in D.C., because they might reside in the District or the alleged infringement may have occurred there. But the ISPs that were subpoenaed – including Cox, AT&T, and Verizon – told the court that it was easy to discover that only 20 of the IP addresses were associated with Washington, D.C.

"AF Holdings could have found out where the IP addresses at issue were probably located simply by using a geo-location service that costs about $8 per thousand addresses," said EFF Intellectual Property Director Corynne McSherry. "But the company didn't do that, because its doesn't want to know. Following the rules would make its job harder, requiring it to file lawsuits across the country against thousands of individuals rather than suing all Does at once. Thousands of lawsuits just doesn't fit the copyright troll business model."

Today's brief is the latest in EFF's efforts to stop copyright trolls – content owners and lawyers who team up to extract settlements from thousands of defendants at a time. Typically, once the identities of suspected infringers are obtained from ISPs, plaintiffs send settlement letters offering to make the accusations go away for a few thousand dollars, a sum considerably smaller than what defendants would need to fight the case in court. In addition to the problem of jurisdiction, many of these cases also lump hundreds of defendants together, making it even harder for Internet users to defend themselves. When you consider the added stigma over association with pornography, you can see how the deck is stacked against subpoena targets.

"Once these copyright trolls get names from ISPs, the cases are essentially over," said EFF Staff Attorney Mitch Stoltz. "We can't let them continue to game the system with these shoddy lawsuits. We're asking the judge to force AF Holdings to play by the rules and respect the rights of each and every defendant."

For the full amicus brief:
https://www.eff.org/document/amicus-brief-6

For more about copyright trolls: https://www.eff.org/issues/copyright-trolls
https://www.eff.org/issues/copyright-trolls

Contacts:

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

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

Related Issues:
March 13, 2012

EFF and Other Groups Led Campaign for Neutrality in Payment Services

San Francisco - Payment service provider PayPal has announced a new speech-friendly policy for online book sales, reversing plans to shut off payment processing to publishers of certain forms of erotic literature.

"Free speech in the 21st Century depends on a chain of electronic service providers, and financial services like PayPal play a critical role in the unfettered exchange of information and ideas in the digital world," said Rainey Reitman, Activism Director of the Electronic Frontier Foundation (EFF). "We are so glad that PayPal has clarified its policy, and won't interfere with lawful access to legal content."

EFF joined the National Coalition Against Censorship, American Booksellers Foundation for Free Expression, the ACLU of California and other groups in calling on PayPal to support free speech after online publishers and retailers – including Book Strand, Smashwords, and eXessica – were notified that their accounts would be closed unless they stopped selling any erotic books containing descriptions of rape, incest, and bestiality. In an open letter to PayPal, the coalition told the company that this would severely restrict the public's access to a wide range of legal material.

Today, PayPal announced that it would focus its policy on e-books that contain potentially illegal images under U.S. law – not on text-only descriptions. Also, PayPal says it will no longer demand that publishers remove all books in a category. Instead, it will identify specific books that might violate the law, and give the site operator or author opportunity to respond and challenge the notice.

"The Internet cannot be a true global forum for expression if private companies that provide communication and payment services operate as morality police," said EFF Senior Staff Attorney Lee Tien. "The Internet is a global forum where ideas can be freely aired, exchanged, and criticized. We're especially pleased that PayPal will only target specific works and not entire websites."

For PayPal's statement:
https://www.thepaypalblog.com/2012/03/update-paypal%E2%80%99s-acceptable-use-policy

For the coalition letter to PayPal:
https://www.eff.org/deeplinks/2012/03/free-speech-coalition-calls-paypal-back-misguided-book-censorship-policy

Contacts:

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

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

Related Issues:
March 6, 2012

Warner Must Take Responsibility for Baseless Copyright Infringement Notices

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge Monday to reject arguments from Warner Brothers Entertainment claiming that the company's automated scheme to send copyright infringement notices absolves it of responsibility for the system's major flaws.

In this case, Warner is accused of sending thousands of takedown notices for content it did not own to a cyber-locker site called Hotfile. Hotfile asked for damages under the Digital Millennium Copyright Act (DMCA), which holds copyright users accountable if they send takedown notices in bad faith. However, Warner insists that while it knew it was issuing some bad takedown requests with its semi-automated system, the errors should be excused by the court because a computer made the mistake – not a human. In an amicus brief filed Monday, EFF argues that Warner cannot wash its hands of its responsibility for the improper removal of content from Hotfile's servers.

"Hotfile's customers unfairly lost access to content because of Warner's bogus takedowns. But under Warner's theory, any company could sidestep accountability for abusing the DMCA by simply outsourcing the process to a computer," said EFF Intellectual Property Director Corynne McSherry. "In fact, the companies would have a perverse incentive to dumb down the process, removing human review. What Warner is doing here is a ploy to undermine the DMCA provisions that protect Internet users from overbroad and indiscriminate takedowns like the ones it issued."

The publicly available facts in this case indicate that Warner's system only considered the title of the work – not nearly enough information to base a good faith belief of any copyright infringement. Warner's system took down files with words in their titles like "The Box," "The Town," and "Unknown," apparently without checking to see if the file was a Warner movie or a child's book report or something else. EFF told the court Monday that Warner knew this driftnet technique would inevitably cause a substantial amount of lawful content to be removed from Hotfile.

"Cloud storage sites like Hotfile are becoming increasingly important," said EFF Staff Attorney Mitch Stoltz. "But improper takedowns like Warner's undermine their usefulness. Companies must be held responsible when their sloppy processes hurt other businesses and Internet users."

For the full amicus brief:
https://www.eff.org/document/amicus-brief-5

Contacts:

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

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

Related Issues:
February 28, 2012

Firefox Browser Extension Detects and Notifies Users of Encryption Weaknesses

San Francisco - The Electronic Frontier Foundation (EFF) launched the 2.0 version of HTTPS Everywhere for the Firefox browser today, including an important new update that warns users about web security holes.

The "Decentralized SSL Observatory" is an optional feature that detects encryption weaknesses and notifies users when they are visiting a website with a security vulnerability – flagging potential risk for sites that are vulnerable to eavesdropping or "man in the middle" attacks.

"In recent weeks, an unexpected weakness in the encryption used by many routers, firewalls and VPN devices made big news," said EFF Technology Projects Director Peter Eckersley. "The new version of HTTPS Everywhere for Firefox will let users know when they connect to a website or device that has a security problem – including weak key problems like the ones that were disclosed two weeks ago – giving people the information they need to protect themselves."

The HTTPS Everywhere browser extension has already been installed more than a million times since it was first launched in 2010 in collaboration with the Tor Project. HTTPS Everywhere helps secure web use by encrypting connections to more than 1,400 websites, using carefully crafted rules to switch sites from HTTP to HTTPS whenever possible, increasing your security and privacy. Without HTTPS, your online reading habits and activities are vulnerable to eavesdropping, and your accounts are vulnerable to hijacking.

"EFF and the Tor Project created HTTPS Everywhere to make it easier for people to keep their usernames, passwords, and browser histories secure and private. Now, the 2.0 release also gives Internet users more information about deeper security problems they couldn't spot on their own," said Eckersley. "This is an extra level of protection that we encourage Firefox users to download, install, and use."

The user interface for HTTPS Everywhere for Firefox has now been translated into 12 languages, as browser security is critical in countries around the world.

Also available today is a beta version of HTTPS Everywhere for the Chrome browser. The Chrome release includes the increased encryption features available in the Firefox version, but it does not yet notify users of weak key vulnerabilities and other certificate problems.

To download or update HTTPS Everywhere:
https://www.eff.org/https-everywhere

Contact:

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

Related Issues:
February 24, 2012

Privilege Against Self-Incrimination Applies to Act of Decrypting Data

San Francisco - A federal appeals court has found a Florida man's constitutional rights were violated when he was imprisoned for refusing to decrypt data on several devices. This is the first time an appellate court has ruled the 5th Amendment protects against forced decryption – a major victory for constitutional rights in the digital age.

In this case, titled United States v. Doe, FBI agents seized two laptops and five external hard drives from a man they were investigating but were unable to access encrypted data they believed was stored on the devices via an encryption program called TrueCrypt. When a grand jury ordered the man to produce the unencrypted contents of the drives, he invoked his Fifth Amendment privilege against self-incrimination and refused to do so. The court held him in contempt and sent him to jail.

The Electronic Frontier Foundation (EFF) filed an amicus brief under seal, arguing that the man had a valid Fifth Amendment privilege against self-incrimination, and that the government's attempt to force him to decrypt the data was unconstitutional. The 11th U.S. Circuit Court of Appeals agreed, ruling that the act of decrypting data is testimonial and therefore protected by the Fifth Amendment. Furthermore, the government's limited offer of immunity in this case was insufficient to protect his constitutional right, because it did not extend to the government's use of the decrypted data as evidence against him in a prosecution.

"The government's attempt to force this man to decrypt his data put him in the Catch-22 the 5th Amendment was designed to prevent – having to choose between self-incrimination or risking contempt of court," said EFF Senior Staff Attorney Marcia Hofmann. "We're pleased the appeals court recognized the important constitutional issues at stake here, and we hope this ruling will discourage the government from using abusive grand jury subpoenas to try to expose data people choose to protect with encryption. "

A similar court battle is ongoing in Colorado, where a woman named Ramona Fricosu has been ordered by the court to decrypt the contents of a laptop seized in an investigation into fraudulent real estate transactions. EFF also filed a friend of the court brief in that case, arguing that Fricosu was being forced to become a witness against herself. An appeals court recently rejected her appeal, and she has been ordered to decrypt the information this month.

"As we move into an increasingly digital world, we're seeing more and more questions about how our constitutional rights play out with regards to the technology we use every day," said EFF Staff Attorney Hanni Fakhoury. "This is a case where the appeals court got it right – protecting the 5th Amendment privilege against self-incrimination."

John Doe was represented by Chet Kaufman of the Federal Public Defender's Office in Tallahassee.

For the full court ruling:
https://www.eff.org/document/opinion

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

Related Issues:
February 24, 2012

Federal Law and First Amendment Protect Criticism of Attorneys and Law Firms

San Francisco - The Electronic Frontier Foundation (EFF) has filed suit in federal court to block threats aimed at LawyerRatingz.com, a website that allows Internet users to write comments and rate attorneys.

A Florida law firm – the Law Offices of Adrian Philip Thomas, P.A. – claims to have lost business based upon negative ratings and reviews posted on LawyerRatingz.com, which included complaints about Mr. Thomas, his billing rates, and his proposed contingency fees. The firm repeatedly threatened legal action against LawyerRatingz.com unless all comments – positive or negative – were removed from the site. LawyerRatingz.com, represented by EFF, filed suit Wednesday against Thomas and his firm, asking for a judicial ruling that LawyerRatingz.com is not legally responsible for material posted by third parties as well as an end to the baseless legal threats.

"Mr. Thomas's claims are meritless and run afoul of bedrock legal principles protecting website operators," said EFF Senior Staff Attorney Matt Zimmerman. "Section 230 of the Communications Decency Act categorically protects providers of 'interactive computer services' from suits such as this one seeking to make them responsible for the speech of their users. Without such protections, valuable sites like LawyerRatingz.com – or Facebook or Yelp or individual blogs that rely upon user comments – simply could not exist."

This is the latest example of legal threats issued to website operators that imply heightened reputational rights on behalf of professionals, such as doctors and lawyers, and demanding that critical reviews be removed. In a 2011 case, a California dentist sued review site Yelp, seeking to hold it responsible for critical reviews posted by a former patient. The case was ultimately dismissed and the dentist was forced to pay the reviewer's and Yelp's attorneys' fees. A website developed by Santa Clara and Berkeley law schools, DoctoredReviews.com, documents efforts by doctors to prohibit critical reviews of their care. In the declaratory relief suit filed Wednesday, LawyerRatingz.com argues that complaints about third party posts have to be taken up with reviewers themselves.

"CDA 230 plainly provides legal protection against these kinds of threats, but small website operators are nonetheless coerced by meritless demands that would ordinarily be too expensive to litigate," Zimmerman said. "Given the critical role played by intermediaries such as LawyerRatingz.com in providing platforms for Internet users to express their views, it is important to give force to those protections and encourage website operators to fight against baseless claims like these."

For the full complaint:
https://www.eff.org/document/complaint-6

Contact:

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

February 22, 2012

Copyright Lawsuit Threatened Essential Tool for Engineers Around the World

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce that a copyright lawsuit threatening an important database of time zone information has been dismissed. The astrology software company that filed the lawsuit, Astrolabe, has also apologized and agreed to a 'covenant not to sue' going forward, which will help protect the database from future baseless legal actions and disruptions.

Software engineers around the world depend on the time zone database to make sure that time-stamps for email and other files work correctly no matter where you are. However, last September, Astrolabe filed a lawsuit against Arthur David Olson and Paul Eggert – the researchers who coordinated the database's development for decades – because the database includes information from an atlas in which Astrolabe claimed to own copyright. But facts – like what time the sun rises – are not copyrightable. EFF, along with co-counsel Adam Kessel and Olivia Nguyen at the Boston office of Fish & Richardson P.C, promptly signed on to defend Olson and Eggert and protect this essential tool. In January, EFF advised Astrolabe that Olson and Eggert would move for sanctions if Astrolabe did not withdraw its complaint. Today's dismissal followed.

In a statement, Astrolabe said, "Astrolabe's lawsuit against Mr. Olson and Mr. Eggert was based on a flawed understanding of the law. We now recognize that historical facts are no one's property and, accordingly, are withdrawing our Complaint. We deeply regret the disruption that our lawsuit caused for the volunteers who maintain the TZ database, and for Internet users."

"It's a fundamental principle of copyright law that facts are not copyrightable, and Astrolabe should have known that," said EFF Intellectual Property Director Corynne McSherry. "While the lawsuit should never have been filed, we're pleased that the legal threat to an important resource has been eliminated.

"We are grateful that EFF and its co-counsel at Fish & Richardson were able to step in and assist us, so that we could help ensure the TZ database would continue to be available," said Eggert and Olson.

For more on this case:
https://www.eff.org/cases/astrolabe-v-olson

Contacts:

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

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

Related Issues:
February 10, 2012

Users Beware: Many Sites Have Serious Security Holes

San Francisco - Millions of people use Internet dating sites to search for love and connection every day, but it could come a big cost for their privacy and security. The Electronic Frontier Foundation (EFF) has found that many services are taking shortcuts in safeguarding users' profiles and other sensitive data.

In "Six Heartbreaking Truths About Online Dating Privacy," EFF identifies serious security holes and counter-intuitive privacy settings that could expose daters' private information. For example, your dating profile – including your photo – can hang around long after you think you've taken yourself off the market. Some sites are also sucking up the vast quantity of data their users share and selling it to online marketers. If you aren't careful, your profile can also be indexed by Google, perhaps popping up in search results if you have an unusual nickname or other unique ways of describing yourself.

"Whether you signed up on a lark or maintained an active profile for years, you may be exposing more information about yourself than you know," said EFF Activism Director Rainey Reitman. "There are a number of ways your online dating profile can be connected to your real identity, exposing things like religious and political beliefs, drug and alcohol use, and sexual preferences. That's why we created this list of the biggest risks, and included some simple tips for online daters who want to protect themselves."

As part of its campaign to raise awareness about the privacy and security risks on popular online dating sites, EFF analyzed the security practices of eight major sites. Many of the most popular sites, like eHarmony and Match.com, don't offer secure access through HTTPS by default, and OkCupid doesn't provide HTTPS access at all. That means every OkCupid username, email, chat session, search, and page viewed are all transmitted in plaintext instead of in encrypted form.

"OkCupid says it can limit who sees your profile – for example, users who identify as gay or bisexual may opt out of being seen by straight people," said EFF Senior Staff Technologist Seth Schoen. "But without HTTPS, the fact that you identify as gay and don't want to be seen by some groups is sent in plaintext, making it easy for someone with the right skills to uncover it. Major sites like Twitter and Facebook have implemented HTTPS recently to protect their users. But dating sites like OkCupid are sadly lagging behind."

Six Heartbreaking Truths About Online Dating Privacy:
https://www.eff.org/deeplinks/2012/02/six-heartbreaking-truths-about-online-dating-privacy

Comparing Privacy and Security Practices on Online Dating Sites:
https://www.eff.org/deeplinks/2012/02/comparing-privacy-and-security-online-dating-sites

Tell OkCupid to Protect Users' Privacy:
https://www.eff.org/deeplinks/2012/02/hey-okcupid-how-about-some-ssl-love

Rainey Reitman
   Activist
   Electronic Frontier Foundation
   rainey@eff.org

Seth Schoen
   Senior Staff Technologist
   Electronic Frontier Foundation
   seth@eff.org

Related Issues:
February 10, 2012

Staggering Financial Penalty for Sharing 24 Songs Is Unreasonable, Unpredictable, and Hurts Innovation

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of libraries and public interest groups have asked an appeals court to affirm the downsized copyright damage award in Capitol v. Thomas-Rasset – the first individual file-sharing case to go to trial.

Juries in this long-running case have come up with different damage awards against Jammie Thomas-Rasset for sharing 24 songs: one for $220,000 and then, when the case was retried, another for a staggering $1.5 million. Last year, a federal judge reduced the award to $54,000, calling the jury's verdict "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." However, Capitol Records did not agree and appealed the judge's ruling to the 8th U.S. Circuit Court of Appeals.

In an amicus brief in support of Thomas-Rasset filed today, EFF explains that statutory damage awards must pass constitutional due process review. Without that review, damages are incredibly unpredictable and can discourage reasonable uses of copyrighted material that involve any legal risk.

"Copyright law should encourage innovation, creativity and the dissemination of information," said EFF Intellectual Property Director Corynne McSherry. "But fear of crushing liability if you guess wrong about whether a court will decide you are protected by fair use can chill experimentation and the creation of new consumer products and services. We don't know what will be the next YouTube, Spotify, or Pandora – and we'll never know if creators of technology are scared away from developing new ideas."

EFF also asked the court to affirm the district court's rejection of Capitol's "making available" theory, which claims that a person legally "distributes" a work if she simply makes it available to the public.

"The Copyright Act is very clear: a work isn't 'distributed' unless someone actually downloads it," said EFF Fellow Michael Barclay. "In essence, the labels want the courts to give them a pass on proving a crucial part of their case."

EFF's brief was joined by the Internet Archive, the Association of Research Libraries, the Association of College and Research Libraries, the American Library Association, and Public Knowledge.

For the full amicus brief in Capitol v. Thomas-Rasset:
https://www.eff.org/document/amicus-brief-8th-circuit-court-appeals

Contacts:

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

Michael Barclay
   Fellow
   Electronic Frontier Foundation
   michael@eff.org

Related Issues:
February 2, 2012

EFF Formally Requests Retention of Materials Stored on Megaupload’s Services

San Francisco - The Electronic Frontier Foundation (EFF) today formally requested the preservation of the data seized when the U.S. government shut down Megaupload.com and related sites, notifying the court and attorneys involved in the case that Megaupload's innocent users deserve a fair process to control and retrieve their lawful material.

"The government knows that Megaupload had many customers who followed the law. Yet it gave those users no notice that their data was at risk and no information about how they might be able to eventually get that data back," said EFF Staff Attorney Julie Samuels. "Our client, and the many other innocent Megaupload users, are entitled to a clear process for obtaining access to their own property, and the first step is to make sure that property is not deleted or damaged until the court can sort this out."

Instead of assisting the innocents caught up in the seizure, the U.S government summarily announced this week that it had finished its examination of Megaupload's servers and announced that the companies that owned those servers – Carpathia and Cogent – were free to delete the contents. The government even stated that deletions could start as soon as February 2, leaving innocent users with very little time to protect themselves. Thankfully, both hosting services have agreed not to destroy users' data for the time being, and it appears that Megaupload is trying in good faith to help users get access. But there is still no clear path for customers to get their content back.

"Megaupload's innocent users are entitled to access their property," said EFF Legal Director Cindy Cohn. "We hope that everyone involved can work together to comply with the law and ensure basic fairness to the millions of people who have done nothing wrong."

This week, Carpathia Hosting and EFF announced that Carpathia created a website at www.megaretrieval.com so that Megaupload’s lawful customers could contact EFF and provide information about the scope of the issue and the material made unavailable by the seizure.  If you are one of these users, are based in the United States, and are looking for legal help retrieving your data, please email your contact information to megauploadmissing@eff.org.

For the full letter sent to the court:
https://www.eff.org/document/letter-court

For more on this case:
https://www.eff.org/cases/megaupload-data-seizure

Contacts:

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

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

Related Issues:
January 30, 2012

Defendants Told They Must Reveal Their Identities Before Fighting to Protect Anonymity

San Francisco - The Electronic Frontier Foundation (EFF) has asked a federal judge in Washington, D.C., to protect the identities of individuals sued in a mass copyright lawsuit involving pornographic materials.

In this case, adult film company Hard Drive Productions sued 1495 unnamed Internet users, claiming they illegally downloaded copyrighted pornographic material. Some of these defendants moved to quash subpoenas aimed at revealing their identity. Many filed those motions under seal, to protect their anonymity until the motions are decided.

Last month, a judge issued a "Catch-22" order, requiring these individuals to reveal their identities before their motions – which were made to protect their identities – could proceed. In a friend of the court brief filed Monday, EFF argues that this requirement could induce defendants to settle their lawsuits in order to avoid the embarrassment, humiliation, or expense, instead of getting to the merits of the case.

"These subpoenas need to be considered in the context in which this case was brought," said EFF Staff Attorney Mitch Stoltz. "The plaintiffs here hope to take advantage of the stigma associated with pornography – as well as the threat of an expensive court battle – to induce people to settle no matter what their defenses might be. If defendants can't fight the exposure of their identities without exposing their identities, then the plaintiffs have already won."

The case is one of a growing number of mass copyright lawsuits that do not appear to be filed with any intention of litigating them. Instead, once identities of suspected infringers are obtained from ISPs, the plaintiffs send settlement letters offering to make the lawsuit go away for a few thousand dollars. A ruling on whether a film company may obtain identities of anonymous Internet users may be the last chance for defendants to be heard by the court.

EFF's brief explains both the speech implications of the ruling and the importance of the court rules that protect defendants, given the numerous ways these mass lawsuits violate due process.

"All that the plaintiffs need here to pursue their settlement shake-down scheme is the identity of the anonymous defendants," said EFF Intellectual Property Director Corynne McSherry. "These defendants have a First Amendment right to argue for their anonymity without the court forcing them to moot that argument from the start. We're asking for these motions to quash to go forward without requiring them to be unsealed, and we're also asking the court to throw this case out given the basic due process flaws."

For the full amicus brief:
https://www.eff.org/document/amicus-brief-hard-drive-productions-v-does-1-1495

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contacts:

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

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

January 25, 2012

EFF Launches Petition Campaign for Expanded DMCA Exemptions

San Francisco - The Electronic Frontier Foundation (EFF) is asking the public to join the campaign to keep and widen exemptions EFF obtained in 2010 to the Digital Millennium Copyright Act (DMCA) to help remove a cloud of legal uncertainty hanging over folks who modify electronic gadgets and make remix videos.

"The DMCA is supposed to block copyright infringement, but it's been misused to threaten tinkerers and users who just want to make their devices more secure and more functional," said EFF Senior Staff Attorney Marcia Hofmann. "The U.S. Copyright Office should hear from concerned Americans who want to run software of their choice on the gadgets of their choice."

"The Internet has helped foster extraordinary and powerful new forms of commentary that rely, in part, on the ordinary activity of borrowing clips of news and popular culture," said EFF IP Director Corynne McSherry. "This is part of our everyday political debate and should be protected by copyright law, not discouraged."

The exemptions EFF won for smartphones and remix videos in 2010 will expire if they are not renewed. So in December, EFF filed comments urging the Copyright Office to not only renew the exemptions, but expand them. Specifically, EFF asked that the office protect the "jailbreaking" of smartphones, electronic tablets, and video game systems – freeing them to run operating systems and applications from any source. EFF also asked for legal protections for artists and critics who use excerpts from DVDs or Internet video services to create new, remixed works.

Now, the Copyright Office is asking for public comment on the proposed exemptions and EFF is seeking the public's help. In EFF's Jailbreaking Is Not a Crime campaign, you can sign a letter written by author and hacker bunnie Huang, advocating for expanded jailbreaking exemptions to protect security researchers and other tinkerers and innovators. In the Rip. Mix. Make. Campaign, you can join video artist, educator, and author Kirby Ferguson in calling for wider exemptions for breaking video encryption for creative purposes.

Both campaigns are part of the official comment period of the Copyright Office's rulemaking process, convened every three years to consider exemptions to the DMCA's prohibitions on "circumventing" digital rights management and "other technical protection measures" used to protect copyrighted works. In passing the DMCA, Congress allowed the Copyright Office to create certain kinds of exemptions to help mitigate the harms the law causes to legitimate, non-infringing use of copyrighted materials.

"Overreaching copyright law can hurt Americans' free expression and innovation rights. That's what we are fighting in Congress with the Internet blacklist bills like SOPA and PIPA, and it's what we are fighting here," said EFF Staff Attorney Mitch Stoltz. "Please help Kirby defend the right to rip, mix, and make, and join bunnie in telling the Copyright Office that jailbreaking is not a crime."

For Jailbreaking Is Not a Crime:
https://www.jailbreakingisnotacrime.org/

For Rip. Mix. Make.:
https://www.ripmixmake.org/

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

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

Related Issues:
January 23, 2012

EFF Amicus Brief Argued that Government Installation and Use of GPS is a Search

San Francisco - In a unanimous decision, the U.S. Supreme Court has confirmed that Americans have constitutional protections against GPS surveillance by law enforcement, holding in U.S. v. Jones that GPS tracking is a "search" under the Fourth Amendment.

In Jones, FBI agents planted a GPS device on a car and then tracked the position of the vehicle every ten seconds for a full month without court oversight. In its ruling today, the Supreme Court held that those actions violated the Fourth Amendment. The majority opinion did not address whether tracking that did not require the physical attachment of a device to property also constitutes a search. However, the concurring opinions of Justices Alito and Sotomayor show a majority of the judges agreed that such surveillance could violate the Fourth Amendment.

"This is a important ruling for all Americans," said Senior Staff Attorney Marcia Hofmann of the Electronic Frontier Foundation (EFF). "The Supreme Court has unanimously confirmed that the Constitution prevents unbridled police use of new technologies to monitor our movements."

EFF and the Center for Democracy and Technology filed an amicus brief in the case, arguing that GPS tracking is fundamentally different from and more invasive than other surveillance technologies the court has allowed before, and that law enforcement use of GPS without a warrant violates Americans' reasonable expectations of privacy. The amicus brief was joined by Roger L. Easton, considered the father of GPS, and other technologists.

EFF was particularly gratified to see Justice Sotomayor, in concurrence, raising concerns about the failure of the Fourth Amendment caselaw to keep up with the realities of today's digital technologies. She said: "People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

EFF's brief was authored by Andrew Pincus of Mayer Brown LLP and The Yale Law School Supreme Court Clinic. In addition to Roger Easton, the brief was signed by Professor Matt Blaze of the University of Pennsylvania, Professor Andrew J. Blumberg of the University of Texas at Austin, and Professor Norman M. Sadeh of Carnegie Mellon University.

For the full decision from the Supreme Court:
https://www.eff.org/files/filenode/scotusjones.pdf

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

January 20, 2012

Appeal Aims to Unseal Secret Orders to Other Internet Companies

Richmond, VA - Fighting to make public government efforts to obtain Internet users' private information without a warrant, today the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) plan to file an appeal in the legal battle over the records of several Twitter users in connection with the government's WikiLeaks investigation.

The ACLU and EFF represent Icelandic parliament member Birgitta Jonsdottir. The appeal, filed jointly with other Twitter users Jacob Appelbaum and Rop Gonggrijp, challenges U.S. District Judge Liam O'Grady's November decision refusing to unseal or publicly list all orders that may have been sent to companies other than Twitter and any related motions and court orders.

"These people want to try to protect their privacy and their First Amendment rights, and the government should not be able to prevent that by hiding court records. Our courts are public. Secret court orders and secret court dockets should not be permitted, except in extraordinary circumstances," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "This case is just one example of the unfortunate recent trend to make our court processes less open and transparent."

In light of the district court’s denial of a stay, Jonsdottir and the other Twitter users involved in the case did not appeal the judge's decision requiring Twitter to turn over their records.

Attorneys for Jonsdottir are Fine of the ACLU, Rebecca Glenberg of the ACLU of Virginia and Cindy Cohn, Lee Tien and Marcia Hofmann of EFF. The motions were joined by attorneys from the law firm Keker & Van Nest LLP and the Law Office of John D. Cline on behalf of Jacob Appelbaum and Rop Gonggrijp, respectively, as well as local counsel in Virginia.

For the full brief:
https://www.eff.org/files/filenode/PublicBrief.pdf

For more on this case:
https://www.eff.org/cases/government-demands-twitter-records

Contacts:

Josh Bell
   ACLU
   media@aclu.org

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

January 18, 2012

EFF Urges Judge to Block Facebook's Dangerous Claims

San Francisco - The Electronic Frontier Foundation (EFF) urged a district court judge Tuesday to block Facebook's attempts to criminalize an add-on service that helped users aggregate all of their social networking data in one place.

Power Ventures created a web-based tool to let users view information from different social networking accounts in the same browser window, enabling them to get a complete picture of what's happening across various platforms. Facebook has been trying to kill the service for several years and is currently claiming that criminal computer intrusion laws were violated when Facebook's users logged into their Facebook accounts automatically using Power's aggregation tool. In an amicus brief filed Tuesday, EFF argues that Facebook's claims are wrong legally and dangerous as a matter of policy.

"Facebook wants to prevent users from choosing follow-on innovation that it doesn't like, so it's asking the court to broaden computer crime laws in ways that would let it manufacture and cherry-pick lawsuits against users and competitors," said EFF Senior Staff Attorney Marcia Hofmann. "Facebook's position would create legal uncertainty for tech start-ups everywhere, stifling innovation and competition. No one would want to challenge a behemoth like Facebook with the specter of criminal charges looming over interoperability."

The court has already recognized the danger of criminalizing violations of a website's terms of use. But now Facebook makes an even broader claim: that the mere design of a tool can violate both the Computer Fraud and Abuse Act (CFAA) and California computer crime law if it might be used to circumvent a technical block later. Facebook also demands a staggering $18 million in damages because Power gave Facebook users an option to use Facebook's "event" feature to invite friends to try Power's service. Facebook claims that feature -- by Facebook's own design -- violates the CAN-SPAM Act.

"Under its CAN-SPAM theory, Facebook -- or any other designer of a 'captive' email system -- could design a system that fails to meet CAN-SPAM and then claim that any commercial event notification is a violation of federal law," said EFF Legal Director Cindy Cohn. "This is an outrageous and dangerous misuse of the law, especially in this age of social networks and internal messaging systems. We're asking the court to reject it."

For the full amicus brief:
https://www.eff.org/files/filenode/Facebook_PV_Amicus_Brief.pdf

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

January 13, 2012

Copyright Troll's Infringement Cases Have No Legal Standing

San Francisco - The Electronic Frontier Foundation (EFF) filed two briefs in the 9th U.S. Circuit Court of Appeals today in its ongoing battle to end copyright troll Righthaven LLC's litigation campaign.

Since its founding in January 2010, Righthaven has brought hundreds of copyright infringement lawsuits, even though it does not create, produce or distribute any content. Instead, Righthaven claimed it was assigned the copyrights from Stephens Media, publisher of the Las Vegas Review-Journal and other newspapers. In the course of its work fighting the Righthaven cases, EFF unearthed a document showing the copyright assignment was a sham, and that Righthaven never owned the copyrights it sued over. As a result, many of Righthaven's bogus cases have been dismissed in district court.

While many defendants paid settlements, Righthaven has never won a single case on the merits and has been ordered to pay over $200,000 for defendants' attorneys fees and $5,000 in sanctions. Righthaven's domain name, righthaven.com, was auctioned to help pay these judgments, and founder and CEO, Las Vegas attorney Steven A. Gibson, is currently being investigated by the Nevada State Bar. However, Righthaven is now looking to the Ninth Circuit to salvage its dangerous business model.

"These cases should never have been filed in the first place. They are based on a sham copyright assignment, run roughshod over fair use, and have abused the legal system by forcing bloggers and web sites to pay cost of defense settlements," said EFF Senior Staff Attorney Kurt Opsahl. "It's obvious Righthaven's litigation scheme has failed, and we urge the appeals court to deny Righthaven's last ditch effort to resuscitate its business model."

The first brief filed today is in Righthaven v. DiBiase. EFF, along with the law firm of Wilson Sonsini Goodrich & Rosati and attorney Chad Bowers, represent Thomas DiBiase, a former prosecutor who was sued for a post on his blog that provides resources for homicide prosecutors in difficult-to-solve murder cases. The case was dismissed in June, and in its motion filed today, EFF urges the court to uphold that dismissal.

Also today EFF filed an amicus brief in Righthaven v. Center for Intercultural Organizing. This case was dismissed in April, with the judge ruling that the non-profit organization's use of the news article was a non-infringing fair use. Righthaven appealed, seeking to rewrite fair use law to vastly expand the scope of infringement. In today's brief, EFF is joined by the Digital Media Law Project of Harvard University, Public Knowledge, and 11 professors in urging the appeals court to reject Righthaven's erroneous view of the law.

"When a small non-profit in Oregon posted a short, factual news article on its blog, it caused no harm to Righthaven or the to Las Vegas Review-Journal," said Opsahl. "It was a classic fair use, not a cause for a federal lawsuit."

The professors who joined the brief are: Patricia Aufderheide of the American University School of Communication; Annemarie Bridy of the University of Idaho College of Law; Thomas G. Field, Jr., of the University of New Hampshire School of Law; Eric Goldman of the Santa Clara University School of Law; William T. Gallagher of Golden Gate University School of Law; Greg Lastowka of Rutgers School of Law-Camden; Michael L. Rustad of Suffolk University Law School; Matthew Sag of Loyola University of Chicago School of Law; Jason Schultz of the University of California's Boalt Hall School of Law; Rebecca Tushnet of Georgetown University Law Center; and Jane K. Winn of the University of Washington School of Law.

Google also filed an amicus brief opposing Righthaven's fair use analysis in the CIO Case and urged the Ninth Circuit to affirm the District Court.

For the full brief in Righthaven v. DiBiase:
https://www.eff.org/document/righthaven-v-dibiase-ninth-circuit-brief

For the full brief in Righthaven v. CIO:
https://www.eff.org/files/filenode/RH_CIO_EFF_AMICI_BRIEF.pdf

For Google's amicus brief:
https://www.eff.org/files/filenode/googerighthavencioamicus.pdf

Contact:

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

January 12, 2012

EFF Urges Court to Grant New Trial for Blogger

San Francisco - The Electronic Frontier Foundation (EFF) urged an Oregon district court in a friend-of-the-court brief filed Wednesday to overturn a multi-million dollar defamation verdict against a blogger that could chill free speech.

In December, a jury found Montana blogger Crystal Cox liable for defaming Oregon lawyer David Padrick in a highly critical blog post and awarded him $2.5 million in damages. In the brief filed Tuesday, EFF supported several arguments raised by Cox in her motion for a new trial, arguing that the court applied the wrong First Amendment defamation standard and that the jury's award was excessive and unsupported by the evidence. Under the First Amendment, EFF argued, all speakers are entitled to the same defamation standard, regardless of their media status. Moreover, as most of the plaintiff's "reputational harm" came as the result of protected speech, the jury's $2.5 million verdict was unsupportable.

"The Supreme Court has repeatedly made clear that the mainstream press does not enjoy any special First Amendment privilege beyond that enjoyed by other speakers," said EFF Senior Staff Attorney Matt Zimmerman. "Whether or not Ms. Cox is a journalist, the First Amendment requires that a jury must find evidence that a defamation defendant was at least negligent, and the jury was not instructed to do so here."

EFF also urged the district court to reconsider its unnecessary finding that Cox, as an unaffiliated and self-proclaimed "investigatory blogger," was not engaged in a "medium of communication" protected by the Oregon shield law. The shield law, passed years before the advent of the popular Internet, does not explicitly mention web activities but was intended to broadly cover alternate publication channels and allow those engaged in distributing information to the public to protect their sources.

"The question of whether a blogger is a journalist or part of the 'media' is an important question, frequently hinging on whether a blogger is engaged in journalism, not on what medium she uses," added Zimmerman. "Such a question was irrelevant here, however, because the primary question here was whether the statements were defamatory, not the identity of her 'source.' The court's finding only serves to muddy the waters about the rights of online journalists and should be withdrawn."

EFF was assisted in this case by Rick Mc Leod of Klarquist Sparkman, LLP.

For the full amicus brief:
https://www.eff.org/files/filenode/coxamicus.pdf

Contacts:

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

January 12, 2012

Frivolous Case Threatens Essential Tool for Engineers Around the World

San Francisco - The Electronic Frontier Foundation (EFF) has demanded the withdrawal of a bogus copyright infringement lawsuit against the operators of a database of time zone information relied on by software engineers across the globe.

Last September, an astrology software company called Astrolabe filed the suit against Arthur David Olson and Paul Eggert, the researchers who coordinated the database's development for decades. Astrolabe claimed that its copyrights were infringed, because the database relies in part on information in an atlas in which Astrolabe claims to own copyright. Notified of the threat, Olsen took the database offline, leaving users and developers without a critical tool to determine local time for time-stamping emails and other files.

EFF signed on to defend both researchers against this absurd lawsuit. It's a fundamental principle of copyright law that facts are not copyrightable, and Astrolabe should have known that was all the researchers took from the atlas. Today, EFF has asked for Astrolabe to officially withdraw the lawsuit or face a motion for sanctions.

"The law requires litigants to conduct a reasonable inquiry into the facts and the law before filing a lawsuit like this," said EFF Staff Attorney Mitch Stoltz. "It's clear Astrolabe never did that basic research. The result was a frivolous lawsuit that left computer users all over the world without an important resource that keeps computers working accurately and efficiently."

The database is now back online. But this case underscores how bogus copyright infringement claims can interfere with the underpinning of technological tools we rely on every day.

"Developers depend on this tool to help your computer run correctly no matter what time zone you are in," said EFF Intellectual Property Director Corynne McSherry. "This essential public resource was put at risk by a ridiculous lawsuit that should never have been filed. We're calling on Astrolabe to do the right thing and withdraw its complaint."

The law firm of Fish & Richardson is assisting EFF in this case.

For the full letter to Astrolabe:
https://www.eff.org/files/LTTMolloy.pdf

For more on this case:
https://www.eff.org/cases/astrolabe-v-olson

Contacts:

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

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

January 10, 2012

Government Withholds Information on Drone Flight Authorizations

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against the U.S. Department of Transportation (DOT), demanding data on certifications and authorizations the agency has issued for the operation of unmanned aircraft, also known as drones.

Drones are designed to carry surveillance equipment – including video cameras, infrared cameras and heat sensors, and radar – that can allow for sophisticated and almost constant surveillance. They can also carry weapons. Traditionally, drones have been used almost exclusively by military and security organizations. However, the U.S. Customs and Border Protection uses drones inside the United States to patrol the U.S. borders, and state and local law enforcement are increasingly using unmanned aircraft for investigations into things like cattle rustling, drug dealing, and the search for missing persons.

Any drone flying over 400 feet needs a certification or authorization from the Federal Aviation Administration, part of the DOT. But there is currently no information available to the public about who specifically has obtained these authorizations or for what purposes. EFF filed a Freedom of Information Act request in April of 2011 for records of unmanned aircraft activities, but the DOT so far has failed to provide the information.

"Drones give the government and other unmanned aircraft operators a powerful new surveillance tool to gather extensive and intrusive data on Americans' movements and activities," said EFF Staff Attorney Jennifer Lynch. "As the government begins to make policy decisions about the use of these aircraft, the public needs to know more about how and why these drones are being used to surveil United States citizens."

Dozens of companies and research organizations are working to develop even more sophisticated drones, so their use is poised for a dramatic expansion in the coming years. Meanwhile, news reports indicate that the FAA is studying ways to integrate more drones into the national airspace because of increased demand from federal, state, and local governments. EFF's lawsuit asks for immediate response to our FOIA request, including the release of data on any certificates and authorizations issued for unmanned aircraft flights, expired authorizations, and any applications that have been denied.

"The use of drones in American airspace could dramatically increase the physical tracking of citizens – tracking that can reveal deeply personal details about our private lives," said Lynch. "We're asking the DOT to follow the law and respond to our FOIA request so we can learn more about who is flying the drones and why."

For the full complaint:
https://www.eff.org/files/filenode/EFFDroneComplaint.pdf

For more on this case:
https://www.eff.org/deeplinks/2012/01/drones-are-watching-you

Contact:

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

December 29, 2011

Justices Find that Spied-On Telephone Customers Have the Right to Sue

San Francisco - The 9th U.S. Circuit Court of Appeals today blocked the government's attempt to bury the Electronic Frontier Foundation's (EFF's) lawsuit against the government's illegal mass surveillance program, returning Jewel v. NSA to the District Court for the next step.

The court found that Jewel had alleged sufficient specifics about the warrantless wiretapping program to proceed. Justices rejected the government's argument that the allegations about the well-known spying program and the evidence of the Folsom Street facility in San Francisco were too speculative.

"Since the dragnet spying program first came to light, we have been fighting for the chance to have a court determine whether it is legal," said EFF Legal Director Cindy Cohn. "Today, the Ninth Circuit has given us that chance, and we look forward to proving the program is an unconstitutional and illegal violation of the rights of millions of ordinary Americans."

Also today, the court upheld the dismissal of EFF's other case aimed at ending the illegal spying, Hepting v. AT&T, which was the first lawsuit against a telecom over its participation in the dragnet domestic wiretapping. The court found that the so-called "retroactive immunity" passed by Congress to stop telecommunications customers from suing the companies is constitutional, in part because the claims remained against the government in Jewel v. NSA.

"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," said EFF Senior Staff Attorney Kurt Opsahl. "It is disappointing that today's decision endorsed the rights of telecommunications companies over those over their customers."

Today's decision comes nearly exactly six years after the first revelations of the warrantless wiretapping program were published in the New York Times on December 16, 2005. EFF will now move forward with the Jewel litigation in the Northern District of California federal court. The government is expected to raise the state secrets privilege as its next line of defense but this argument has already been rejected in other similar cases.

For the full opinion in Jewel:
https://www.eff.org/files/filenode/20111229_9C_Jewel_Opinion.pdf

For the full opinion in Hepting:
https://www.eff.org/files/filenode/20111229_9C_Hepting_Opinion.pdf

Contact:

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

Related Issues:
December 20, 2011

Cartoon Take on 'What What (In the Butt)' Does Not Infringe Copyright

San Francisco - The Electronic Frontier Foundation (EFF) backed Viacom Monday in a lawsuit over a parody of a popular online video called "What What (In the Butt)," arguing that South Park's reimagining of the work is a clear case of fair use and that the district court's early dismissal of the case was correct.

South Park aired the "What What" parody in a 2008 episode critiquing the popularity of absurd online videos. Two years later, copyright owner Brownmark Films sued Viacom and Comedy Central, accusing South Park of infringement. A federal judge dismissed the case, calling it a clear fair use. Brownmark appealed to the 7th U.S Circuit Court of Appeals, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious. In an amicus brief filed Monday, EFF argued that Brownmark is asking for a standard that would chill free speech and encourage frivolous litigation.

"Brownmark is asking the appeals court for a rule that would make it much more difficult to resolve easy fair uses cases quickly. That would discourage artists and others from fighting claims, no matter how baseless, or even engaging in the fair use in the first place," said EFF Fellow Michael Barclay. "The judge in this case got it exactly right: when the fair use is obvious, the case should be decided right away."

Courts in the 9th and the 10th circuits have already decided that it's proper to dismiss some copyright cases during the pleading stages on fair use and other grounds. These rulings are important in fighting back copyright trolls, who depend on the threat of legal costs to encourage people to settle cases even though they might have legitimate defenses.

"Fair use – using some copyrighted material for the purposes of art, education, or commentary – is an important part of how we communicate today. We see it everyday in segments on The Daily Show, in political advertisements, and in 'remix' videos on YouTube," said EFF Staff Attorney Julie Samuels. "We can't let litigious copyright holders chill free speech by making it more expensive."

For the full amicus brief in Brownmark v Comedy Partners:
https://www.eff.org/files/filenode/Brownmark_v_Comedy_Partners_CA7_amicus-brief_as-filed.pdf

Contacts:

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

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

December 20, 2011

EFF's New Guide Helps Travelers Defend Their Data Privacy

San Francisco - Anytime you travel internationally, you risk a broad, invasive search of your laptop, phone, and other digital devices – including the copying of your data and seizing of your property for an indefinite time. To help travelers protect themselves and their private information during the busy holiday travel period, the Electronic Frontier Foundation (EFF) released a new report today with important guidance for safeguarding your personal data at the U.S border.

Thanks to protections enshrined in the U.S. Constitution, the government generally can't snoop through your laptop for no reason. But the federal government claims those privacy protections don't cover travelers at the U.S. border, allowing agents to take an electronic device, search through all the files, and keep it for further scrutiny – without any suspicion of wrongdoing whatsoever. For business travelers, that could expose sensitive information like trade secrets, doctor-patient and attorney-client communications, and research and business strategies. For others, the data at risk includes personal health histories, financial records, and private messages and photos of family and friends. EFF's new report, "Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices," outlines potential ways to protect that private information, including minimizing the data you carry with you and employing encryption.

"Different people need different kinds of precautions for protecting their personal information when they travel," said EFF Senior Staff Technologist Seth Schoen. "Our guide helps you assess your personal risks and concerns, and makes recommendations for various scenarios. If you are traveling over the U.S. border soon, you should read our guide now and get started on taking precautions before your trip."

Over the past few years, Congress has weighed several bills to protect travelers from suspicionless searches at the border, but none has had enough support to become law. You can join EFF in calling on the Department of Homeland Security to publish clear guidelines for what they do with sensitive traveler information collected in digital searches by signing our petition. You can also test your knowledge about travelers' privacy rights and help spread the word about the risks by taking our border privacy quiz.

"We store detailed records of our lives on our laptops and our phones. But the courts have diminished our constitutional right to privacy at the border," said EFF Senior Staff Attorney Marcia Hofmann. "It's time for travelers to take action and protect themselves and their private information during international trips."

For Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices:
https://www.eff.org/wp/defending-privacy-us-border-guide-travelers-carrying-digital-devices

To take the border privacy quiz:
https://www.eff.org/pages/border-search-quiz

To sign the petition
https://action.eff.org/o/9042/p/dia/action/public/?action_KEY=8341

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

Seth Schoen
   Senior Staff Technologist
   Electronic Frontier Foundation
   seth@eff.org

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