Many news reports have focused on Section 215 of the Patriot Act (used to collect all Americans' calling records) and Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FAA) (used to collect phone calls, emails and other Internet content) as the legal authorities supporting much of the NSA's spying regime. Both laws were passed by Congress and are overseen by the Foreign Intelligence Surveillance Court (FISA court). However, it's likely that the NSA conducts much more of its spying under the President's claimed inherent powers and only governed by a document originally approved by President Reagan titled Executive Order 12333.
Last week, the group behind the copyright monitoring and enforcement system commonly known as "Six Strikes" released some data about its operations for the first time. The Center for Copyright Information (CCI), a group created and funded by major movie studios, music labels, and Internet service providers revealed that their Copyright Alert System (CAS) sent more than 1.3 million accusations of copyright infringement to about 722,000 Internet subscribers. The report also said that over 60,000 of those subscribers received some kind of penalty from their ISP.
The Supreme Court issued two unanimous patent opinions today, both overruling the Federal Circuit. The cases are Nautilus, Inc. v. Biosig Instruments, Inc. and Limelight Networks, Inc. v. Akamai Technologies, Inc.
In Nautilus, the Supreme Court rejected the Federal Circuit’s test for determining whether a patent claim was sufficiently “definite.” The Federal Circuit’s test, now unacceptable, would have found a claim indefinite only if it were “insolubly ambiguous.” In practice, this was a standard that was rarely, if ever, met.
Over the past year, as the Snowden revelations have rolled out, the government and its apologists have developed a set of talking points about mass spying that the public has now heard over and over again. From the President, to Hilary Clinton to Rep. Mike Rogers, Sen. Dianne Feinstein and many others, the arguments are often eerily similar.
But as we approach the one year anniversary, it’s time to call out the key claims that have been thoroughly debunked and insist that the NSA apologists retire them.
So if you hear any one of these in the future, you can tell yourself straight up: “this person isn’t credible,” and look elsewhere for current information about the NSA spying. And if these are still in your talking points (you know who you are) it’s time to retire them if you want to remain credible. And next time, the talking points should stand the test of time.
1. The NSA has Stopped 54 Terrorist Attacks with Mass Spying
Back in April, the Supreme Court issued a significant ruling in a case called Octane Fitness that makes it easier for defendants to collect attorney’s fees when they win patent suits. We predicted this decision could be bad news for patent trolls who bring weak cases and use the high cost of defense to extort settlements. Last Friday, Judge Denise Cote of the Southern District of New York awarded attorney’s fees to the startup FindTheBest after it defeated a patent troll. The decision shows that Octane, in the hands of a thoughtful judge alert to patent troll abuse, can provide (at least some) justice.
On June 4, 2014, one day before the anniversary of the Snowden revelations, Poland celebrates 25 years since the fall of an authoritarian regime. On this occasion, President Obama is visiting Poland and meeting with many heads of states—including officials who were affected by the mass surveillance scandal carried out by the NSA.
California, you did it.
As of this morning, with 22,353 of 22,353 precincts reporting, voters approved Proposition 42, a ballot measure that ensures that local agencies must comply with the California Public Records Act (CPRA). The final tally for the Public's Right to Know Act was 61.5 percent for, 38.5 percent against—a landslide for transparency.
June 5, 2013 was when the world heard from Snowden. This year, it's your turn to speak out.
On June 5, 2013 the Guardian newspaper published the first of Edward Snowden's astounding revelations. The secret court order that conclusively showed that the US government was collecting the phone records of millions of innocent Verizon customers. It was the first of a continuous stream of stories that pointed out what we’ve suspected for a long time: that the world’s digital communications are being continuously spied upon by nation states with precious little oversight.
Today, a group of over 400 organizations and experts, along with 350,000 individuals, continue to rally in support of the 13 International Principles on the Application of Human Rights to Communications Surveillance (the Necessary and Proportionate Principles) a year to the day after Edward Snowden first revealed how governments are monitoring individuals on a massive scale. The international experts who supported the Necessary and Proportionate Principles has issued a press release containing quotes from professionals weighing in on the need to end the mass surveillance.
For Immediate Release: Thursday, June 05, 2014
It’s been one year since the Guardian first published the Foreign Intelligence Surveillance Court order, leaked by former NSA contractor Edward Snowden, that demonstrated that the NSA was conducting dragnet surveillance on millions of innocent people. Since then, the onslaught of disturbing revelations, from disclosures, admissions from government officials, Freedom of Information Act requests, and lawsuits, has been nonstop. On the anniversary of that first leak, here are 65 things we know about NSA spying that we did not know a year ago:
1. We saw an example of the court orders that authorize the NSA to collect virtually every phone call record in the United States—that’s who you call, who calls you, when, for how long, and sometimes where.
With almost double the population of the United States—packed into a much smaller land area—the eleven countries of Southeast Asia are home to more than eight out of every hundred people in the world.
Two Southeast Asian countries, Indonesia and the Philippines, are in the top ten global users of Facebook. Another, Brunei, is amongst the top ten global users of Twitter. A fourth, Singapore, was the first country to offer a commercial ADSL (wired broadband) service. In this highly connected region, citizens have taken every opportunity to engage online with each other, their governments, and the rest of the world.
Last month the FCC released its proposal for America’s new network neutrality rules. Unfortunately, the agency’s proposal included rules that would permit Internet providers to prioritize certain websites, e.g., make deals with some services for a faster and better path to subscribers. While the FCC claims it is not endorsing such deals, the proposed rules will inevitably be read as exactly that.
Update (September 5, 2014): The court denied our motion for leave to file an amicus brief.
It’s election season across the country, and candidates and their supporters are angling for attention in races big and small. Political speech is particularly important in a democracy, and EFF recently weighed in on an important case that demonstrates how over-broad anti-impersonation laws can wrongfully silence vigorous online debate and discussion.
Students are rising up and fighting to protect our Internet. In response to our call to action, seventeen university groups from across the United States have published open letters about the real chilling effects mass surveillance is having right now on academic freedom and life on campus.
Book review and discussion questions for reading groups
In No Place to Hide, Glenn Greenwald shows that a modern investigative reporter doesn’t just need the courage to take on the United States government and established media. He also needs a whole lot of crypto.
Fair use enjoyed a major victory in court today. In Authors Guild v. HathiTrust, the Second Circuit Court of Appeals handed down a decision that strongly underscores a fair use justification for a major book scanning program. For those counting along at home, today's decision marks another in a serious streak of judicial findings of fair use for mass book digitization, including Authors Guild v. Google, Cambridge University Press v. Becker, and the district court opinion in the HathiTrust case itself.
There has been plenty of bad news when it comes to NSA spying, so it’s encouraging when the news is good. At the end of May, the House Committee on Science, Space, and Technology signaled the beginning of the end for NSA’s effort to undermine encryption, passing an amendment that extricates the NSA from the National Institute of Standards and Technology’s (NIST) work on encryption standards.
In September of last year, ProPublica, the Guardian, and the New York Times broke the story that the NSA had systematically “circumvented or cracked much of the encryption, or digital scrambling” that protects the Internet, “collaborating with technology companies in the United States and abroad to build entry points into their products.”
One of the most unnerving things about modern communications technology is the way devices constantly leak information about their physical whereabouts—to mobile carriers, network operators, e-mail providers, web sites, governments, even shopping mall owners. Many of these information leakages are simple historical accidents. The designers of technologies never considered that technical standards would let everyone around you notice your device's presence. They never considered that technical choices would let web sites infer when two people are (or aren't) spending the night in the same residence, or let your phone company follow you around virtually from moment to moment.
EFF is shocked and dismayed by the 15-year jail term handed down today in absentia to Egyptian blogger and activist Alaa Abd El Fattah and 24 other co-defendants, on charges of unlawful protest and attacking a police officer. The judgment was not expected to be made until 10am, but proceedings began at 9am.
It has been one year since the first Snowden disclosure and in lieu of this first anniversary, world privacy expert and publisher of The Privacy Surgeon, Simon Davies, conceived and published a report titled “A Crisis of Accountability: A global analysis of the impact of the Snowden revelations.” The report includes contributions from individual countries, summarizing the extent to which the Snowden revelations have produced tangible changes. Additionally, the analysis discusses what needs to happen, moving forward, to enact substantial change in light of these disclosures.
Copyright law began in England in 1710. At that time, copyright only limited you from copying—it didn't limit you from making a derivative work, such as a translation or a fan homage (such as the many spin-offs of Gulliver's Travels that flourished after its 1726 publication). It didn't attempt to control your personal use of the products in which copyright works were embodied (books had no DRM!). If you wanted to comment on a work, or parody it, copyright owners had no say in how much of the original work you could use, or how widely you could share or perform your commentary.
Wouldn't it be great if copyright law was like that again?
Earlier this month, the Senate took patent reform off the table for this legislative session. The Senate leadership did this despite the fact that a strong bill passed in the House with overwhelming support. And thousands of constituents have called for meaningful reform to finally put an end to patent trolling.
Thailand’s military took over the country in a coup d'état last month. As part of its seizure of the apparatus of government, it has also taken steps to extend its control over the country’s Internet users. The army immediately “asked for the cooperation” of Thai ISPs to block over 200 new web sites, including independent sites such as Prachatai, and, briefly, Facebook.
The last few years have seen many examples of patents hindering, rather than helping innovation. Patent trolls run rampage while some big companies spend more money on patent wars than research and development. This is why it is so encouraging when companies commit to openness, ensuring their patents do not obstruct future innovation.
The Office of the United States Trade Representative published its updated objectives for the Trans-Pacific Partnership (TPP) agreement, including its priorities in the Intellectual Property (IP) chapter of the multilateral trade agreement. Its new objectives in copyright enforcement mostly contain some vague rhetorical changes while continuing to bolster bloated claims about the necessity of IP enforcement for the U.S. economy without any commitment to protecting users' rights. The U.S. Trade Rep's language reflect the underlying, ongoing problem with the executive agency's misplaced priorities on negotiating international trade deals.
EFF recently kicked off our second Tor Challenge, an initiative to strengthen the Tor network for online anonymity and improve one of the best free privacy tools in existence. The campaign—which we've launched with partners at the Freedom of the Press Foundation, the Tor Project, and the Free Software Foundation—is already off to a great start. In just the first few days, we've seen over 600 new or expanded Tor nodes—more than during the entire first Tor Challenge.
This is great news, but how does it affect you? To understand that, we have to dig into what Tor actually is, and what people can do to support it. Support can come in many forms, too. Even just using Tor is one of the best and easiest things a person can do to preserve privacy and anonymity on the Internet.
In the Ethiopian community, bloggers, journalists, and activists are all targets of increasing levels of surveillance and intimidation. The Ethiopian government has used its monopoly on telecommunications to restrict its citizens rights to privacy and freedom of expression. The websites of opposition parties, independent media sites, blogs, and several international media outlets are routinely blocked by government censors and radio and television stations are routinely jammed. Bloggers, including six members of the Zone Nine Blogging collective, are harassed, threatened, and jailed if they don't "tone down" their writings.
Last Thursday, the best legal minds in the Bay Area gathered to participate in EFF's Seventh Annual Cyberlaw Pub Trivia Night. Over 110 lawyers and friends attended, making this our largest trivia night to date. Competition was fierce as teams put their heads together to test their knowledge of the legal minutiae occurring in the spaces where the law meets technology. Teams included representatives from a host of major technology law firms and Internet companies, representing the best and the brightest luminaries of cyberlaw. The seven rounds of questions were written collaboratively as EFF's attorneys, technologists and activists joined forces to pull trivial details from the rich canon of privacy, free speech, and intellectual property law with sections focusing on patents, Supreme Court oral arguments, and NSA programs.
Please join us in congratulating this year's trivia masterminds:
When courts issue new decisions about how law enforcement can obtain records and data from companies, it's not just the police who have to follow the new rules. The companies that turn over the data have a big role to play in ensuring that the law is followed. A new court decision requiring police to use a search warrant in order to obtain cell tracking records underscores the importance phone companies can play in extending important privacy protections throughout the country.
On May 25, 2014, a Vietnamese blogger and human rights activist, Tran Thi Nga, was seriously injured during a violent attack in Hanoi, a local human rights organization reported.
Tran Thi Nga, a savvy social media user in documenting human right abuses in Vietnam, was returning home after visiting fellow blogger Nguyen Tuong Thuy when five men—now suspected to be undercover police members—surrounded her motor bike, on which she was riding with her two children, the report said. The assailants attacked Tran Thi Nga in front of her children and chased her before beating her with a metal pole. The blogger sustained serious injuries to her knee, arm, and back.
The NSA may seem like an intimidating giant, but it has a serious Achilles' heel— the enormous budget it claims from taxpayer dollars every year. While change to the actual words of the laws that govern NSA surveillance seems to be a difficult task, a group of representatives have decided to take the battle to the bank.
A neutral Internet—one where Internet service providers (ISPs) can’t unfairly limit our access to parts of the Net, create special fast lanes for some services, or otherwise handle data in non-neutral ways—will require more than just rules that prohibit bad conduct. We’re also going to need real transparency.
Transparency is the crucial first step toward meaningful network neutrality. Without a detailed and substantive window into how providers are managing their networks, users will be unable to determine the reason why some webpages are slow to load. New services that hope to reach those users will have a harder time figuring out if there is some artificial barrier in place, and competitors won’t know whether and how they can offer better options (assuming some kind of competitive environment exists).
EFF sent a letter this week opposing SB 962, a bill by California Senator Mark Leno that mandates every phone that will be sold in the state to have a "kill switch"—a technological solution that would remotely disable a smartphone if, say, it were stolen or lost. Despite our concerns, the bill passed out of committee in the Assembly.
There's a simple reason why we opposed this particular bill—and why we almost always oppose bills with technological mandates. Technology is fast; the law is slow. While there is an important place for policy in a world where the Internet and devices are readily available to both consumers and government actors, institutionalizing specific technical solutions—such as making every cell phone manufacturer feature a "kill switch" program—is risky.
UPDATE: June 18, 2014
Yesterday, the Email Privacy Act, H.R. 1852, reached 218 co-sponsors in the House of Representatives. That's great news, since 218 is the crucial number representing a majority of members of the House. It also means that there's no better time to demand that the House leadership allow the bill to come to a vote.
Exactly one year ago, Amy Ngai of the Sunlight Foundation visited EFF's offices in San Francisco to introduce our staff to the rather large and versatile collection of transparency tools they've developed. Midway through her presentation, there was a moment when you could clearly perceive several pieces click into place in our activism team's collective mind. Sunlight is developing new technologies for engaging with Congress and the legislative process, while EFF has been at the forefront of mobilizing the online community to defend Internet freedom. With a shared hacker and tinkerer mentality and a love of exposing government secrets, a natural partnership was formed.
In a long-awaited decision, the Supreme Court issued its opinion in Alice Corp. v. CLS Bank today, striking down an abstract software patent. Essentially, the Court ruled that adding “on a computer” to an abstract idea does not make it patentable. Many thousands of software patents—particularly the vague and overbroad patents so beloved by patent trolls—should be struck down under this standard. Because the opinion leaves many details to be worked out (such as the scope of an “abstract idea”), it might be a few years until we understand its full impact.
Today, the US House of Representatives passed an amendment to the Defense Appropriations bill designed to cut funding for NSA backdoors. The amendment passed overwhelmingly with strong bipartisan support: 293 ayes, 123 nays, and 1 present.
Currently, the NSA collects emails, browsing and chat history under Section 702 of the FISA Amendments Act, and searches this information without a warrant for the communications of Americans—a practice known as "backdoor searches." The amendment would block the NSA from using any of its funding from this Defense Appropriations Bill to conduct such warrantless searches. In addition, the amendment would prohibit the NSA from using its budget to mandate or request that private companies and organizations add backdoors to the encryption standards that are meant to keep you safe on the web.
The Supreme Court of British Columbia has ordered Google to remove entire domains from its search results—a decision that could have enormous global implications on free expression. This is the latest of several instances of courts exercising dangerous jurisdictional overreach, where they have applied local laws to remove content on the Internet. Not only did the Court order Google to delete the site from its search results on the Canadian “Google.ca” domain, it went even further by demanding it censor the domain worldwide by deleting every instance of the site from its global index.
A bipartisan coalition of 38 civil liberties and public interest organizations, including the Electronic Frontier Foundation, sent a letter to Congress yesterday that draws a line in the sand on NSA reform. The coalition made it clear that it cannot support the watered-down version of the USA FREEDOM Act passed in the House of Representatives without significant changes to the legislation, and outlined clear steps that Congress can take to address problems with the bill.
This weekend at the U.S. Conference of Mayors annual meeting in Dallas, some mayors will take a strong stand in support of net neutrality. According to an op-ed by Mayors Ed Lee of San Francisco and Ed Murray of Seattle, the city leaders are unveiling a resolution calling on the FCC to preserve an open Internet.
This is good and welcome news. The mayors get it: a free and open Internet is critically important for the health of U.S. cities. “The Internet has thrived because of its openness and equality of access,” reads the mayors’ op-ed. “It has spurred great innovation, while providing a level playing field for its users. It allows everyone the same chance to interact, to participate, to compete.”
Last month, we harshly criticized Twitter for responding to questionable legal orders from Russia and Pakistan to take down content. We argued that the company that once called itself “the free speech wing of the free speech party” had caved in the midst of corporate expansion.
We are therefore pleased to see that Twitter has reversed course on its approach to Pakistan. As the New York Times reported, Twitter explained its decision in a statement issued to Chilling Effects. The statement reads:
Some of the world’s most recognized companies began on college campuses. Think of Facebook, invented by Mark Zuckerberg while an undergraduate at Harvard, or Microsoft, started by Bill Gates when he was a college sophomore.
Yet universities are not necessarily the most welcoming places for student innovation. Harvard reprimanded Zuckerberg for “breaching security” and hacking into dorm websites to obtain photos of students for an early version of Facebook. Luckily, the university did not involve law enforcement, but they certainly could have.
Nominations are now open for EFF’s 23rd Annual Pioneer Awards, to be presented this fall in San Francisco. EFF established the Pioneer Awards in 1992 to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology. Nominations are open until midnight on Wednesday, July 2. Nominate the next Pioneer Award winner today!
Big law should not be a big bully. Last week, the nation’s largest law firm, Jones Day, tried to use trademark law to censor a website critical of Detroit’s emergency manager (a former Jones Day partner). As is typical, since the website criticized the firm, it included a Jones Day trademark. The law firm responded with an ominous cease and desist letter demanding that its trademarks be removed from the site.
The U.S. Supreme Court’s 1979 decision of Smith v. Maryland turned 35 years old last week. Since it was decided, Smith has stood for the idea that people have no expectation of privacy in information they expose to others. Labeled the third party “doctrine” (even by EFF itself), Smith has come up over and over in the debates surrounding electronic surveillance and NSA spying.
Thailand's censorship regime has grown ever more pervasive since the military took over last month, with punishments aimed at both speakers and consumers of prohibited media. On the streets, Thais have been arrested for wearing the wrong message on a T-shirt, or reading George Orwell's "1984" in public. Online, according to the regime's own reports, hundreds of new websites have been added to the Thai government's official blacklist including politics and news sites covering the coup. Now the authorities are deceiving Internet users into disclosing their personal details, including email addresses and Facebook profile information, when they try to visit these prohibited sites.
The FBI plans to roll out the face recognition component of its massive Next Generation Identification (NGI) biometrics database this summer—but the Bureau has six years of catching up to do in explaining to Americans exactly how it plans to collect, use and protect this data. Today we called on Attorney General Eric Holder to do just that.
As we explained in the letter:
The murky copyright situation surrounding phone unlocking could get a little bit clearer, thanks to the new and somewhat improved Unlocking Consumer Choice and Wireless Competition Act, a bipartisan bill in the Senate.
As a refresher: the notion that phone unlocking might violate copyright law comes from an ill-conceived section of the Digital Millennium Copyright Act (DMCA) that prevents the circumvention of technical measures around copyrighted works. If such measures are understood to include restrictions on phone software, then unlocking may violate the DMCA—an outcome Congress never intended.