As John Oliver and others have observed, the net neutrality debate is plagued with jargon—“reclassification,” “Title II,” “information service vs. telecommunications service,” and so on. But there’s one bit of jargon we need to hear more often: “forbearance.”
As we explained yesterday, forbearance is the process by which the Federal Communications Commission (FCC) expressly commits NOT to apply certain rules. It can choose to do that where enforcement of a given rule is not necessary to ensure reasonable and nondiscriminatory practices, or to protect consumers, and forbearance is consistent with the public interest. Normally the FCC forbears in response to a specific petition from a service provider but it can also do so on its own.
Updated: July 1st at 6:30PM to add information about traffic correlation attacks.
We posted last week about the Tor Challenge and why everyone should use Tor. Since we started our Tor Challenge two weeks ago we have signed up over 1000 new Tor relays. But it appears that there are still some popular misconceptions about Tor. We would like to take this opportunity to dispel some of these common myths and misconceptions.
Last week, an online community for sex workers disappeared from the Internet. Visit SFRedbook.com, MyPinkBook.com, or MyRedBook.com right now, and you’ll only find the seals of the law enforcement agencies—the FBI, the DOJ, and the IRS—that seized the sites as part of a prostitution and money laundering investigation.
The seizure is part of a disturbing trend of targeting sex workers, but more than that, it is an attack on the rights to free speech and free association exercised by a diverse group of people, many of whom have nothing to do with the alleged crimes.
Just as you take steps to protect your personal safety and health while engaging in real-life encounters, a sex worker should also be mindful of the dangers of the online world.
As we wrote in a separate blog post today, the sex worker forum MyRedBook, along with its companion sites, have been seized by the FBI in connection with a criminal indictment. This could potentially mean that sensitive user data is in the hands of law enforcement.
We will be watching the situation closely to see how it develops. In the meantime, we hope that sex workers take advantage of some of the tools other vulnerable communities have used to keep themselves safer from government oppression.
No tool is foolproof, but we believe the following may be helpful:
EFF is pleased by the adoption of a resolution by the United Nations Human Rights Council (UNHRC) reaffirming the “promotion, protection and enjoyment of human rights on the Internet.” The resolution — sponsored by Brazil, Tunisia, Nigeria, Turkey, Sweden, and the United States—was adopted by consensus at the twenty-sixth session of the UNHRC and supported by a total of 82 member states. Last month, EFF joined 62 civil society groups in calling on the UN to uphold fundamental rights online.
The Privacy and Civil Liberties Oversight Board (PCLOB) issued a legally flawed and factually incomplete report late Tuesday that endorses Section 702 surveillance. Hiding behind the “complexity” of the technology, it gives short shrift to the very serious privacy concerns that the surveillance has rightly raised for millions of Americans. The board also deferred considering whether the surveillance infringed the privacy of many millions more foreigners abroad.
The main battlefield for the net neutrality fight right now is at the Federal Communications Commission (FCC), in a “rulemaking” underway this summer, which asks for public comment about a new set of proposed rules that the FCC claims will protect the open Internet. This process is one of the most important ways Internet users, businesses, trade groups, and public interest organizations can make their voice heard in this critically important national debate. To help that along, let's take a close look at the process and the proposal the FCC has put on the table.
"Are you being blocked?" asks Open Rights Group's (ORG) newly-revamped website, "Blocked!" The site, which relaunched today, allows users to test whether their websites are being blocked by one of the UK's 10 major Internet service providers (ISPs). Anyone who suspects their website to be a target of the ISPs' filters can detect a block by simply entering the URL of their site into the search bar provided.
The project seeks to address the problems of arbitrary blocking of websites prompted by concerns about child protection, copyright, and other issues. As ORG explains:
Do you own an Android device? Is it less than three years old? If so, then when your phone’s screen is off and it’s not connected to a Wi-Fi network, there's a high risk that it is broadcasting your location history to anyone within Wi-Fi range that wants to listen.
Coordinated enforcement of intellectual property (IP) rights—copyright, patents and trade marks—has been an elusive goal for Europe. Back in 2005, the European Commission struggled to introduce a directive known as IPRED2 that would criminalize commercial-scale IP infringements, but abandoned the attempt in 2010 due to jurisdictional problems. IP maximalists took another run at it through ACTA, the Anti-Counterfeiting Trade Agreement, but that misguided treaty was roundly defeated in 2012 when the European Parliament rejected it, 478 votes to 39.
Learning about Linux is not a crime—but don’t tell the NSA that. A story published in German on Tagesschau, and followed up by an article in English on DasErste.de today, has revealed that the NSA is scrutinizing people who visit websites such as the Tor Project’s home page and even Linux Journal. This is disturbing in a number of ways, but the bottom line is this: the procedures outlined in the articles show the NSA is adding "fingerprints"—like a scarlet letter for the information age—to activities that go hand in hand with First Amendment protected activities and freedom of expression across the globe.
What we know
In early March, Yangon—the former capital of Myanmar (Burma)—played host to a conference held by the East-West Center, called "Challenges of a Free Press." The event (which I attended) featured speakers from around the world, but was more notable for its local speakers, including Aung San Suu Kyi and Nay Phone Latt, a blogger who spent four years as a political prisoner before being released under a widespread presidential amnesty in 2012. In a country where the Internet was heavily censored for many years, online freedom was discussed with surprising openness, although concerns about hate speech on platforms like Facebook were raised repeatedly.
Philip Johnson is Chief Intellectual Property Counsel of Johnson & Johnson, one of the largest pharmaceutical companies in the world. He is also a representative member of the Coalition for 21st Century Patent Reform, the leading trade group opposing patent reform this past year.
And now he's rumored to be next in line to be the director of the United States Patent and Trademark Office.
EFF is in Ottawa this week for the Trans-Pacific Partnership (TPP) negotiations, to influence the course of discussions over regressive digital policy provisions in this trade agreement that could lead to an increasingly restrictive Internet. But this round is different from the others—the secrecy around the talks is wholly unprecedented. The Canadian trade ministry, who is hosting this round of talks, has likely heightened the confidentiality due to the mass public opposition that is growing against this undemocratic, corporate-driven trade deal.
Recent debate about network neutrality has largely focused on how to make sure broadband providers don’t manipulate their customers’ Internet connections (or as John Oliver put it, how to prevent “cable company f*ckery”). But in today’s world of smartphones and tablets people are spending less of their time on the Internet typing at a computer and more of it swiping on a smartphone. This is why it’s critically important for net neutrality principles to apply to mobile broadband too.
The Intercept published an article last night describing secret foreign intelligence surveillance targeting American citizens. One of those citizens, Nihad Awad, is the executive director and founder of the Council on American-Islamic Relations (CAIR), the nation’s leading Muslim advocacy and civil rights organization and a long-time client of EFF.
In response, EFF Staff Attorney Mark Rumold stated:
EFF unambiguously condemns government surveillance of people based on the exercise of their First Amendment rights. The government’s surveillance of prominent Muslim activists based on constitutionally protected activity fails the test of a democratic society that values freedom of expression, religious freedom, and adherence to the rule of law.
Today, EFF and its partners in the global Our Fair Deal coalition join together with an even more diverse international network of creators, innovators, start-ups, educators, libraries, archives and users to release two new open letters to negotiators of the Trans-Pacific Partnership (TPP).
The TPP, although characterized as a free trade agreement, is actually far broader in its intended scope. Amongst many changes to which it could require the twelve negotiating countries to agree are a slate of increased rights and privileges for copyright rights holders.
Wikipedia readers and editors can now enjoy a higher level of long-term privacy, thanks to the Wikimedia Foundation's rollout last week of forward secrecy on its encrypted connections. Forward secrecy is an important Web privacy protection; we've been tracking its implementation across many popular sites with our Encrypt the Web Report. And though it may sound like an obscure technical switch, the impact is dramatic: forward secrecy ensures that every new connection uses unique and ephemeral key information, so traffic intercepted once can't later be decrypted if the private key gets compromised.
There is a lot in our current patent system that is in need of reform. The Patent Office is too lax in granting patents. Federal Circuit case law has consistently favored patentees. Another part of this problem is the forum shopping by patentees that leads to a disproportionate number of cases being filed in the Eastern District of Texas.
When EFF joined with a coalition of partners to fly an airship over the NSA's Utah Data Center, the goal was to emphasize the need for accountability in the NSA spying debate. In particular, we wanted to point people to our new Stand Against Spying scorecard for lawmakers. But while we were up there, we got a remarkable and unusual view.
When faced with a digital emergency—whether someone has hijacked your social media account or your website is being DDoSed—it can be difficult for non-technical people to discern what the problem is and what the appropriate next steps may be for seeking help. To help fill this niche in the universe of privacy and security guides, a group of NGOs ( including EFF, Hivos, Internews, VirtualRoad, and CIRCL) have teamed up to write a guide that combines advice for self-assessment with advice for “first responders” to help non-technical users all over the world identify and respond to their digital emergencies.
EFF asked the Second Circuit Court of Appeals today to reject a last-ditch attempt by the Authors Guild to block the Google Books project and rewrite the rules of fair use.
This is a long-running case that culminated in a tremendous victory in November. After years of litigation, Judge Denny Chin ruled that Google Books does not infringe copyrights in the books it indexes. But the Authors Guild appealed Judge Chin’s clear-headed decision. EFF—joined by Public Knowledge and the Center for Democracy and Technology—filed an amicus brief with the appeals court today, asking the court to affirm the decision below and help ensure that fair use continues to operate as a crucial safety valve for innovation.
Last week, Microsoft completed a legal attack on two large and quite nasty botnets by obtaining a court order transferring 23 domain names to Microsoft’s control. The botnets went down and the Internet was a better place for it. But in doing so, Microsoft also took out the world’s largest dynamic DNS provider using a dangerous legal theory and without any prior notice to Vitalwerks Internet Solutions—the company that runs No-IP.com—or to the millions of innocent users who rely on No-IP.com every day.
After months of waiting, a Ninth Circuit panel has finally responded to Google's plea, supported by public interest groups (including EFF), journalists, librarians, other service providers, and law professors, to reconsider its disastrous opinion in the case of Garcia v. Google. The good news is that we managed to get the panel to revisit its opinion. The bad news is that it essentially doubled down.
Due to the unprecedented secrecy surrounding the Trans-Pacific Partnership (TPP) negotiations taking place this week in Ottawa, there was no formal opportunity to engage with negotiators about the concerns that EFF and many others have expressed—over issues such as the extension of copyright protection by 20 years, and the delegation of ISPs as copyright police with the power to remove content and terminate accounts.
Yesterday, a new patent reform bill passed out of subcommittee in the House. The bill, called the Targeting Rogue and Opaque Letters Act, or TROL Act, deals with the problem of misleading patent demand letters. While we are pleased that Congress is still taking an interest in patent trolls, this particular bill would achieve very little and is no substitute for real reform.
Imagine that you watched a police officer in your neighborhood stop ten completely ordinary people every day just to take a look inside their vehicle or backpack. Now imagine that nine of those people are never even accused of a crime. They just happened to be in the wrong place at the wrong time. Even the most law-abiding person would eventually protest this treatment. In fact—they have.1
The House Judiciary seems to have pulled from a grab bag in scheduling the next hearing in its series reviewing various aspects of copyright law for reform. Tomorrow's session is titled "Moral Rights, Termination Rights, Resale Royalty, and Copyright Term," covering four very distinct areas of law and policy.
Update: A few hours after we posted this, New Mexico Corrections Department informed us that inmate Eric Aldaz's Facebook-related disciplinary infractions have been thrown out. More information at the bottom.
Like more than a billion other people on the planet, Eric Aldaz had a Facebook profile. What made Aldaz’s profile different from most is that he was unable to post to it himself: he didn’t hold the login credentials or even have any kind of access to the Internet. He is an inmate of the New Mexico Corrections Department (NMCD) and his family maintained the page on his behalf.
EFF joined a group of thirty-five civil society organizations, companies, and security experts that sent a letter on Monday encouraging President Obama to veto S. 2588, the Cybersecurity Information Sharing Act (“CISA”) of 2014. The letter states:
CISA fails to offer a comprehensive solution to cybersecurity threats. Further, the bill contains inadequate protections for privacy and civil liberties. Accordingly, we request that you promptly pledge to veto CISA.
In the flurry of activity yesterday surrounding the FCC’s comment deadline on the net neutrality debate, members of Congress are quietly trying to slip through a bill that will block the development of real alternatives for high-speed Internet.
Representative Marsha Blackburn introduced an amendment late last night that aims to limit FCC authority to preempt state laws that restrict or prohibit municipal and community high-speed Internet projects or investment.
Blackburn’s amendment will go up for a vote today, so we must act now to tell our representatives how important it is that cities and communities maintain their right to build their own communications infrastructure.
Update: As predicted, DRIP has already become law: it received royal assent on Thursday July 17, 2014.
The UK government is currently forcing through Parliament a wide-ranging set of changes to that country's digital surveillance and data retention law. The pace of the progression of the new amendments, called the Digital Retention and Investigatory Powers Bill (or "DRIP") has been astounding. Introduced without warning last Friday, if not opposed by peers in Britain's House of Lords, it looks like it may become law within the week.
The UN High Commissioner for Human Rights has released an excellent report today on the right to privacy in the digital age, blasting the digital mass surveillance that has been taking place, unchecked, by the U.S., the U.K, and other world governments. The report is issued in response to a resolution passed with unanimous approval by the United Nations General Assembly in November 2013. That resolution was introduced by Brazil and Germany and sponsored by 57 member states.
The Yorba Foundation, a non-profit group that produces open source Linux desktop software, reported last week that it was denied tax-exempt 501(c)(3) status by the IRS. The group had waited nearly five years for a decision. The IRS stated that, because the software Yorba develops can be used commercially, the organization has a substantial non-exempt purpose and is disqualified from tax-exempt status. We think the IRS’ decision rests on a fundamental misunderstanding of open source software.
In Call of Duty: Black Ops II, players engage in a variety of missions. In some, they encounter nonfiction characters, including a character based on General Manuel Noriega, the former military dictator of Panama. As with movies or books, a creator of a video game might include real-world people as part of its historical narrative, to heighten realism, or for purposes of political satire or social commentary. The First Amendment should provide robust protection for this kind of creative expression. But some terrible court decisions regarding the so-called ‘right of publicity’ have opened the door to censorship by persons depicted in creative works.
The Federal Communications Commission is about to make a critical decision about whether Internet providers will be allowed to discriminate against certain websites. The issue is network neutrality—the principle that Internet providers must treat all data that travels over their networks equally. On Tuesday, EFF filed comments with the FCC to weigh-in on this critical debate.
Without network neutrality, companies like Comcast and Verizon will be permitted to charge websites to reach users faster. This would be a disaster for the open Internet. When new websites can’t get high-quality service, they’ll be less likely to reach users and less likely to succeed. The result: a less diverse Internet.
EFF has filed the final brief in its dispute with the government over evidence preservation in Jewel v. NSA against mass surveillance. As the brief explains, the government has admitted to destroying years of evidence of its mass spying, and this destruction continues today. In fact, at an emergency hearing in June, the government claimed that it was incapable of complying with a court order to preserve evidence relating to the mass interception of Internet communications it is conducting under Section 702 of the FISA Amendments Act.
“What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?"
That’s the question John Napier Tye, a former State Department section chief for Internet freedom, calls on the government to answer in his powerful op-ed published today by the Washington Post. In it, Tye calls the NSA's surveillance operations abroad, conducted under Executive Order 12333, a threat to American democracy, stating that this power “authorizes collection of the content of communications, not just metadata, even for U.S. persons.”
EFF is releasing an experimental hacker alpha release of wireless router software specifically designed to support secure, shareable Open Wireless networks. We will be officially launching the Open Wireless Router today at the HOPE X (Hackers on Planet Earth) conference in New York City, aiming to bring aboard members of the hacker community. This release is a work in progress and is intended only for developers and people willing to deal with the bleeding edge.
July 10 marks one year since EFF and a coalition of hundreds of experts and human rights activists put the finishing touches on the Necessary and Proportionate Principles.
More than 100,000 people will descend on San Diego Comic-Con this week, including yours truly representing the Electronic Frontier Foundation. If you’re one of the the lucky badge-holders with an interest in protecting Internet freedom, I’d love to chat with you and give you a sticker (while supplies last, obviously). Our friends at Alaska Robotics and musician Marian Call have generously offered us a spot at their table. You can find me there (#1134 in the main exhibition hall) from 2 - 3 pm on Friday, Saturday and Sunday.
But EFF isn’t the only opportunity at SDCC to ponder issues of surveillance, tech policy, free speech, and intellectual property. We’ve compiled this schedule of panels worth checking out this year.
In the TV series Person of Interest, two government artificial intelligence programs—one gone rogue—can access virtually every surveillance camera across New York City, including privately operated ones in places like parking garages, hotels, and apartment complexes. The creators of the show try to stay one step ahead of modern technology. So the question is: do cities really create networks of interconnected private and public security cameras?
Yesterday, ProPublica reported on new research by a team at KU Leuven and Princeton on canvas fingerprinting. One of the most intrusive users of the technology is a company called AddThis, who are employing it in “shadowing visitors to thousands of top websites, from WhiteHouse.gov to YouPorn.com.” Canvas fingerprinting allows sites to get even more identifying information than we had previously warned about with our Panopticlick fingerprinting experiment.
In many parts of the developing world, students face barriers to access academic materials. Libraries are often inadequate, and schools and universities are often unable to pay dues for expensive, specialized databases. For these students, the Internet is a vital tool and resource to access materials that are otherwise unavailable to them. Yet despite the opportunities enabled by the Internet, there are still major risks to accessing and sharing academic resources online.
A current situation in Colombia exemplifies this problem: a graduate student is facing four to eight years in prison for sharing an academic article on the Internet. He wasn't making a personal profit from sharing the article—he simply intended for other scientists like him to be able to access and cite this scientific research.
Today, the House Judiciary Committee is holding a hearing on "remedies" in copyright law—that is, the penalties, injunctions, and other means of challenging and penalizing alleged infringement. This is hugely important: fixing copyright’s remedy provisions (like excessive, unpredictable monetary penalties and government seizures of domain names) is key to ensuring that copyright does its job—helping to encourage creativity—without unduly interfering with free speech and innovation.
EFF's position on net neutrality simply calls for all data that travels over the Internet to be treated equally. This means that we oppose ISPs blocking content based on its source or destination, or discriminating against certain applications (such as BitTorrent), or imposing special access fees that would make it harder for small websites to reach their users. We have called for the FCC to assume firm legal authority to protect the neutrality of the net from these sorts of abuses, while explicitly forbearing from going any further to regulate the Internet.
Yesterday we filed a motion for partial summary judgment in our long running Jewel v. NSA case, focusing on the government's admitted seizure and search of communications from the Internet backbone, also called "upstream." We've asked the judge to rule that there are two ways in which this is unconstitutional under the Fourth Amendment:
Human Rights Watch and the ACLU today published a terrific report documenting the chilling effect on journalists and lawyers from the NSA's surveillance programs entitled: "With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law and American Democracy." The report, which is chock full of evidence about the very real harms caused by the NSA's surveillance programs, is the result of interviews of 92 lawyers and journalists, plus several senior government officials.
It's increasingly rare for Congress to actually pass bills into law, but Friday brought some good news from Capitol Hill: More than a year after the exemption covering phone unlocking expired and a White House petition on the topic collected some 114,000 signatures, a narrow bill offering a limited carve-out for consumers unlocking phones made its way to the President's desk to be signed into law.