The U.S. Supreme Court earlier this week heard oral argument in two cases involving whether the police, after arresting someone, can search his or her cell phone without a search warrant. Although the police have been allowed to do a limited search of a person after they’ve been arrested, this exception to the Fourth Amendment’s warrant requirement was never intended to cover the massive amounts of sensitive information on a cell phone. But as the oral arguments made clear, the government is relying on dangerous misconceptions about cell phone technology in an attempt to justify a significant privacy intrusion.
The Issues Before the Supreme Court
EFF is launching a new extension for Firefox and Chrome called Privacy Badger. Privacy Badger automatically detects and blocks spying ads around the Web, and the invisible trackers that feed information to them. You can try it out today:
Today is Press Freedom Day. We, along with dozens of organizations, take this opportunity to highlight the cases of journalists and bloggers in danger around the world. But World Press Freedom day is more than that. Any journalist, online or off, will tell you that their freedom to report depends not just on their own safety, but on the safety of a network of contributors and supporters. Confidential sources risk their jobs, their own freedom, or even their lives to provide the leads that end up as a story. Editors, publishers, and Internet hosting services in many countries share legal risks with reporters when they are threatened with joint liability. Readers, too, are a target: to play their part in press freedom they must feel safe that they can read controversial material without fearing that their choices of reading matter won't be logged and later used against them.
Last week, the White House released its report on big data and its privacy implications, the result of a 90-day study commissioned by President Obama during his January 17 speech on NSA surveillance reforms. Now that we’ve had a chance to read the report we’d like to share our thoughts on what we liked, what we didn’t, and what we thought was missing.
What We Liked
Support for ECPA Reform
In Mexico City last week, protestors formed a human chain to demonstrate their opposition to Ley de Telecomunicaciones y Radiodifusión, the telecommunications and broadcasting law that President Enrique Peña Nieto introduced at the end of March. The protest came on the heels of a Global Day of Action Against Censorship in Mexico and a March Against Silence which drew thousands of protestors.
In the latest legislative move to rein in NSA surveillance, Rep. Jim Sensenbrenner today released new language for the USA FREEDOM Act that will be reviewed this Wednesday by the House Judiciary Committee. If passed, the bill will move forward for the full House for a vote.
EFF Senior Staff Attorney Lee Tien issued this statement on the proposed "manager's amendment" text:
While we are still analyzing the bill, Rep. Jim Sensenbrenner's new language is a potentially powerful approach to stopping the mass collection of phone records under the Patriot Act—amending several legal provisions that the government can use to secretly learn about our phone calls. We're happy that the House of Representatives remains actively engaged in this crucial debate, and urge the House Judiciary Committee to help move surveillance reform forward.
EVENT TODAY: We're taking this day to educate people about the threats of DRM and the current policy challenges we face around DRM. We just completed a live video discussion at 10:00 AM PDT / 1:00 PM EDT to learn more about these fights and what we can do to take back our rights to control over the digital media and devices that we own. EFF Staff Attorney Mitch Stoltz, International Director Danny O'Brien, and Global Policy Analyst Maira Sutton were featured on this live discussion moderated by Activist April Glaser.
DRM and the laws that back it up actively undermine our computer security. On this Day Against DRM, the first one since we learned about the US government’s efforts to sabotage the integrity of our cryptography and security technology, it's more important than ever to consider how the unintended consequences of copyright enforcement make us all less safe.
Laws that make it illegal to interfere with digital rights management (DRM) technologies—also known as “anti-circumvention” laws—are already much too broad and restrictive in most countries. Unfortunately, the US Trade Representative is working hard to expand its reach even more using the Trans-Pacific Partnership (TPP) agreement. The TPP’s anti-circumvention provisions, if adopted, would introduce new barriers to users’ abilities to tinker with their devices and content, even for entirely lawful purposes.
EFF and the ACLU of Pennsylvania have joined forces to file an amicus brief in a long-running challenge to two criminal statutes that unconstitutionally limit the free expression of millions of adults who use the Internet and other electronic forms of communication. These statutes bring the threat of criminal sanctions for private, lawful speech and also violate important privacy rights, including both the First and the Fourth Amendment of the Constitution.
One of the bitterest struggles against DRM is still taking place on the Web's own home turf — at the World Wide Web Consortium, the Web's own standards organization. Last year, the consortium accepted as in scope the development of Encrypted Media Extensions, an addition to the HTML5 standard intended to support DRM within browsers. EME envisages a future where restricted content could be served within Web pages, apparently as a fully-fledged element of the Web ecosystem, but locked away from user control or fair use, and controlled by tools that can override user preferences.
As centers of learning, universities are places where the exploration and investigation of new and often controversial topics is encouraged, where freedom of speech and thought should flourish.
Under mass government surveillance, academic freedom and freedom of speech are severely chilled. When the government is monitoring communications, social media activity, and phone calls, students are less likely to organize and be politically active.
That’s why we invite university communities across country to organize and raise their voices to join the call to stop the NSA’s illegal mass surveillance by writing and signing onto open letters to express deep concern about the effects of NSA spying on campus.
This statement was updated at 2:35 PM PST 5/7/14.
Earlier today, the House Judiciary Committee passed a revised version of the USA FREEDOM Act. We’re pleased by Congress’ strong step toward ending bulk surveillance of phone records of Americans. This bill is a good start toward reforming an out-of-control surveillance state, and we urge members of Congress to support it as the bill moves forward through the legislative process.
The USA FREEDOM Act includes a definition of call detail records which excludes cell site location data, a provision that will help safeguard the location privacy of millions of Americans from mass NSA surveillance. However, we remain concerned that the bill allows prospective collection—collection of records that have not yet been created—up to 180 days.
This blog post was updated at 5:10 pm PST 5/8/14.
The most recent disclosure of classified NSA documents revealed that the British spy agency GCHQ sought unfettered access to NSA data collected under Section 702 of the FISA Amendments Act. Not only does this reveal that the two agencies have a far closer relationship than GCHQ would like to publicly admit, it also serves as a reminder that surveillance under Section 702 is a real problem that has barely been discussed, much less addressed, by Congress or the President.
[caption]EFF's Yan Zhu, Maira Sutton, April Glaser and Mark Burdett at
UPDATE 5/8/14: It appears that Aspen has changed course. After a day of fierce criticism, it now says it will give students the option of buying the physical casebook or participating in its ‘Connected Casebook’ program. The program is still very problematic, however, as students who choose it will pay full price for a book they can’t keep or resell, and these books will likely be wastefully pulped. The requirement to return books still appears to be an unenforceable condition designed to defeat first sale. We’ll continue to monitor the situation – Aspen’s move looks like the first step of a longer campaign to keep students from exercising their right to resell textbooks and undermine the used book market.
A group of United States Senators and Representatives is asking Internet advertising networks to create a blacklist of alleged "piracy sites" and refuse to serve ads to those sites. If this idea sounds familiar, that's probably because it was an integral part of the infamous Stop Online Piracy Act, or SOPA, legislation that was stopped in its tracks two years ago after a massive protest by Internet users.
We're still digesting today's lengthy decision in the Oracle v. Google appeal, but we're disappointed—and worried. The heart of the appeal was whether Oracle can claim a copyright on Java APIs and, if so, whether Google infringed that copyright. According to the Federal Circuit today, the answer to both questions was a qualified yes—with the qualification being that Google may have a fair use defense.
In the 36-year existence of the Foreign Intelligence Surveillance Act (FISA), the government has never disclosed classified FISA materials—the specific applications for surveillance and the factual affidavits that support the surveillance request—to a criminal defendant. That all changed in January 2014 when a federal judge in Chicago ordered the government to turn over surveillance applications and affidavits to the attorneys representing Adel Daoud, a 19 year-old accused of attempting to blow up a bar in Chicago.
During the aftermath of World War II, months before the adoption of the Universal Declaration of Human Rights and the formation of the United Nations, states in the Americas gathered to create the very first international human rights instrument of the modern era. In the midst of military regimes across Latin America, the American Declaration of the Rights and Duties of Man was established in 1948, setting out the obligations for States to promote and protect human rights in the American hemisphere. A few years later, in 1969, States ratified the American Convention on Human Rights, also known as the Pact of San Jose.
It’s been hard to go a day without hearing news about the Chairman of the FCC, Tom Wheeler, and his highly contested plan for the future of network neutrality. Google and Netflix signed a letter with nearly 150 other Internet companies calling on the FCC to reconsider its plan, which would purportedly bless the creation of “Internet fast lanes.” Over a million people across the country have spoken out against that idea, worried that a “pay to play” Internet will be less hospitable to competition, innovation, and expression.
Whether you’re filling out a mail-in ballot or planning to rock the polling station in person on election day (June 3), if you’re a California voter we urge you to please vote "yes" on Prop. 42.
This statewide ballot measure would ensure that local agencies, such as cities and counties, obey the California transparency laws that guarantee the public’s right to access government documents and attend government meetings.
It's official: the last holdout for the open web has fallen. Flanked on all sides by Google, Microsoft, Opera, and (it appears) Safari's support and promotion of the EME DRM-in-HTML standard, Mozilla is giving in to pressure from Hollywood, Netflix, et al, and will be implementing its own third-party version of DRM. It will be rolled out in Desktop Firefox later this year. Mozilla's CTO, Andreas Gal, says that Mozilla "has little choice." Mozilla's Chair, Mitchell Baker adds, "Mozilla cannot change the industry on DRM at this point."
The European Court of Justice has been taking a stronger role this year in calculating how human rights apply to new technology, most recently with decisions repealing the EU's digital data retention directive. Now, in Google Spain v. Mario Costeja González, it has outlined how Europeans might have public information about them deleted from search engine listings — even if that data is available elsewhere, part of the legal record, and true.
Today the FCC is meeting to discuss new rules that could determine the future of network neutrality. There’s been a lot of news circulating about what the FCC’s plan will contain. We’ll have some analysis to share shortly.
In the meantime, though, Internet users need to tell the FCC that we want real net neutrality, and we don’t want net discrimination. Visit DearFCC.org to submit comments to the FCC’s official Open Internet docket. Fill out the form to submit your comments, and tell the FCC you oppose rules that will stifle Internet innovation and creativity.
For the past two years, EFF has been pushing Congress to pass legislation to rein in patent trolls. Starting with the introduction of the Shield Act in 2012, momentum has built for patent reform. And we saw dramatic results in December of last year when the House overwhelmingly passed the Innovation Act. Since then, the ball has been in the Senate’s court. But weeks and months have gone by without a comparable bill being introduced in the Senate Judiciary Committee.
There’s good news: the nationwide outcry against the Federal Communications Commission’s troublesome proposal for new Open Internet rules is clearly having an impact. At a public meeting this morning, commissioners were factoring in questions that—according to previous accounts—weren’t on the table only days ago. The bad news: the FCC still is considering a set of rules that will allow Internet providers to discriminate how we access websites with only vague and uncertain limits, endangering network neutrality and threatening the vibrant growth of the Internet.
If you say anything remotely critical about the Ecuadorian government, you may face a copyright takedown. A shady law firm in Spain called Ares Rights has been sending Digital Millennium Copyright Act (DMCA) takedown notices on behalf of several Ecuadorian state officials, targeting documentaries, tweets, and search results that include images of those officials, alleging copyright infringement. Most of the companies receiving these requests, including Google, Twitter, and Vimeo, have unfortunately responded by automatically removing the content. Some have re-instated removed works after a successful counter-notice was filed by the uploaders.
Students are starting to speak out about how mass surveillance affects life on campus. Two different open letters from students—at the University of Oregon and New York University—have been published in the last two weeks. And both point to the real life consequences of mass government surveillance on academic freedom and life on campus.
"The US government had built a system that has as its goal the complete elimination of electronic privacy worldwide” Glenn Greenwald, No Place To Hide: Edward Snowden, the NSA, and the U.S. Surveillance State
June 5th marks the first anniversary of the beginning of the Edward Snowden revelations–a landmark event in global awareness of the worldwide spying machine. It has been a year where the world has learned specific details of how the NSA and its four closest allies in the Five Eyes partnership (United Kingdom, Canada, Australia, and New Zealand) have been spying on much of the world's digital communications. What have we learned?
FCC Chairman Tom Wheeler is about to get an earful on net neutrality. He’s testifying at a hearing in front of the House Subcommittee on Communications and Technology tomorrow, and Congress members from both sides of the aisle are asking for constituents to contribute questions at the hearing as well using the hashtag #AskWheeler.
It's always a pleasure when anything patent-related enters the mainstream. Recently, Stephen Colbert took on the absurd inventions that companies attempt to patent.
In this case, the host of Comedy Central's The Colbert Report lampoons Amazon's new patent on a method of photography in front of a white background.
If you’ve been imagining NSA surveillance as something distant, with analysts sitting in remote data centers quietly analyzing metadata—stop now. NSA surveillance has become a part of day-to-day law enforcement fabric in the United States. The Snowden disclosures that were made public as part of Glenn Greenwald’s book No Place to Hide drive this point home, and they emphasize why we need real change to government surveillance, not minor reforms.
For the second year in a row, Investigative Reporters and Editors solicited nominations from the public for one of the least coveted prizes in government: the Golden Padlock. The award recognizes “the most secretive publicly-funded agency or person in the United States,” and the U.S. Border Patrol last year took home the inaugural honor for stonewalling Freedom of Information Act requests related to agent-involved shootings along the border.
Say it ain't so, Google. Two weeks ago, the awesome activists at the Peng! Collective launched a funny and smart satirical site, google-nest.org, which purported to offer a host of new Google "products," pairing the launch with a public announcement at the Re:publica 2014 conference in Berlin. The spoof site included products such as Google Trust (data “insurance”), Google Bee (personal drones), Google Hug (location-based crowdsourced hug matching) and Google Bye (an online profile for the afterlife). The goal: raise awareness about Google's privacy policies, which Peng! believes are hypocritical. The spoof was great success, prompting a wave of commentary and coverage that recognized it for the satire that it was.
EFF and Other Civil Liberties Organizations Call on Congress to Support Uncompromising Reform
Since the introduction of the USA FREEDOM Act, a bill that has over 140 cosponsors, Congress has been clear about its intent: ending the mass collection of Americans' calling records. Many members of Congress, the President's own review group on NSA activities, and the Privacy and Civil Liberties Oversight Board all agree that the use of Section 215 to collect Americans' calling records must stop. Earlier today, House Leadership reached an agreement to amend the bipartisan USA FREEDOM Act in ways that severely weaken the bill, potentially allowing bulk surveillance of records to continue. The Electronic Frontier Foundation cannot support a bill that doesn't achieve the goal of ending mass spying. We urge Congress to support uncompromising NSA reform and we look forward to working on the Senate's bipartisan version of the USA FREEDOM Act.
Today, Bassel (Safadi) Khartabil is celebrating his 33rd birthday in prison. This day is the 799th since the young software developer was detained in Damascus, Syria. That’s nearly 800 days that Bassel has not been able to write code, or tweet, or hug his family, or do any of the other things that he should have been doing over the past few years.
Patent reform suffered a massive setback today when Senator Patrick Leahy, as chair of the Judiciary Committee, announced that he is taking patent reform “off the agenda.” We understand that other senators—particularly Sens. Chuck Schumer and John Cornyn—were still working hard to reach a bipartisan deal. Just as they were ready to release a new bill, Leahy stepped in to kill the process.
The Ninth Circuit Court of Appeals has put police on notice: an automatic license plate reader (ALPR) alert, without human verification, is not enough to pull someone over.
Last week, the appellate court issued an important opinion in Green v. City & County of San Francisco, a civil rights lawsuit that calls into question whether technology alone can provide the basis for reasonable suspicion under the Fourth Amendment. The panel overturned a lower court ruling in favor of San Francisco and its police department, allowing the case to go to trial.
A case of computer error
In 2012, when Twitter announced in a blog post that it was launching a system that would allow the company to take down content on a country-by-country basis—as opposed to taking it down across the entire Twitter network—EFF defended that decision as the least terrible option. After all, when a company refuses to comply with an official government request, the government's response is often to block an entire platform.
Update (January 2016): There’s a new, expanded edition of Hacking the Patent System for 2016.
EFF and Public Knowledge have submitted comments to the Copyright Office, urging it to clarify the legality of using so-called "orphan works"—works that may or may not still be restricted by copyright, but for which the rightsholder is difficult or impossible to identify and locate. The orphan works problem has been widely recognized, and as we note in the comments, there is a clear consensus that the public needs more access to these sorts of books, photographs, films, and other materials.
Finally, some good news from Congress this week. Patent and surveillance reform may be suffering setbacks, but open access may be recovering thanks to a new provision passed yesterday that mandates a solid public access policy for NASA, NSF, NIST, the National Weather Service, and the Office of Science of the Department of Energy.
The House Committee on Science, Space, and Technology marked up H.R. 4186, the Frontiers in Innovation, Research, Science and Technology (FIRST) Act. This science funding bill was controversial for a number of reasons, but we have been focused on one part: Section 303, dealing with public access to scientific research.
Every day cafes, airports, libraries, laundromats, schools and individuals operate “open” Wi-Fi routers, sharing their connection with neighbors and passers-by at no charge. The City of San Francisco recently deployed a free, public Wi-Fi network along a three-mile stretch of Market Street. Sometimes people use those connections for unauthorized activities. Most of the time they don’t, and the world gets a valuable public service of simple, ubiquitous Internet access.
The Organization for Economic Cooperation and Development (OECD) is an organisation of 34 developed-country governments that work together to promote economic progress and trade through information sharing and research. This week it turned its attention to copyright, patents and other forms of so-called intellectual property, at a workshop on “Society's Gain from the Intellectual Property Exchange.” EFF attended as an invited expert.
Historically, Cambodia has been fairly lax in enacting legislation that stifles freedom of expression online—unlike its neighbors of Vietnam and Thailand— but with more Cambodian citizens gaining access to the Internet, the Cambodian People's Party (CPP) has attempted to control dissenting views and "immoral actions" online through the drafting of a cybercrime law. A leaked copy of the legislation, which was initially drafted in 2012, revealed some serious threats to fundamental freedoms by making certain speech and other actions online punishable by fine and prison time.