EFF has learned about a new proposal for European law that takes aim at online streaming services, but which will strike a serious blow to creators and their fans. The proposal, which would effectively ban online streaming services from hosting works under free licenses, could spell an end to services like the Luxembourg-based Jamendo that offers access to free music online, and raise new barriers to offering freely-licensed works on other streaming platforms.
This is all part of Europe's proposed new Digital Single Market Directive, which is presently doing the rounds of the three European institutions (the European Commission, European Parliament, and Council of the European Union) that will have to reach agreement on its final text. As part of this process, proposals for amendment to the Commission's original draft are coming up from several of the committees of the European Parliament. We've previously sounded the alarm about other aspects of this Directive, including its misguided link tax and plans for an upload filtering mandate, both of which are the subject of ongoing compromise negotiations.
But this latest amendment proposal, coming out of left field, would be added to another section of the Directive, that proposes to ensure fair remuneration to authors for the use of their works, an objective that EFF otherwise supports. The Parliamentary committee leading the negotiations is the Legal Affairs (JURI) committee, but other committees are preparing opinions on the draft and can also propose their own amendments to it. This proposal has come from the Committee on Culture and Education (CULT). Although the text of the proposal is not available online, as it is under discussion by the Rapporteur and Shadow Rapporteurs of the CULT behind closed doors, EFF has obtained a copy, which says:
Member States shall ensure that, when authors and performers transfer or assign the right of making available to the public of their works or other subject-matter for online on-demand services, they retain the right to obtain fair remuneration derived from the direct exploitation of their works present in the catalogue of those services.
The right of an author or performer to obtain fair remuneration for the making available of his/her work as described in paragraph 1 cannot be waived.
In short, this creates what amounts to a tax on copyright works made available on online streaming services, payable to the collecting societies that administer copyright on behalf of authors and performers (though the tax itself is separate from the copyright holder's economic rights). The tax cannot be waived by the authors or performers themselves, which means that even if they want to make their works available for streaming online for free, the law would tie their hands and prohibit this. The streaming site would still be required to set aside money for "fair remuneration" of the authors and performers, whether they want this or not.
The proposal seems to be modeled on a similar amendment that was introduced in Chile last year, and which unfortunately passed soon after we wrote about it, without any substantive debate. It's not unusual for measures such as this to pop up in Europe or America after a smaller country adopts them. The recording industry's IP maximalist agenda is a global one, and it often makes sense for them to establish a precedent somewhere else in the world where resistance to their proposals may be weaker, before pushing it out to larger economies.
This amendment would eliminate one of the few advantages that small and independent artists enjoy in promoting their work online—the ability to make it available for free. For some such artists, the free online availability of their work builds up a fan base to support future licensing deals, concert tours, and merchandise sales. Others may release some or all of their work for free for non-economic reasons, such as to communicate a message, or simply for the love of their art. Certainly, not all artists do this. But the law as it exists at present at least offers them a choice. Either they can license their work to streaming platforms for money, or they can make it available to such platforms for free. But if this amendment passes, that choice will be taken away from them.
The losers from this proposal are fourfold. Perhaps the biggest losers are the creators themselves, who will face new barriers between their art and their fans and collaborators. The streaming services will also lose out, as they will face higher expenses and will no longer be able to operate non-commercially even if they only carry freely licensed content. Fans, of course, will suffer because of the reduced legal availability of free music and video online. And even the copyright industry will suffer, as the increased costs of legal streaming services may cause creators and fans to shift back to peer to peer file sharing, where copyright infringing works are also exchanged.
Since this proposal enjoys the support of a majority of the European political groups in the CULT, if nothing changes then it is very likely to pass that committee at least. The next meeting of the Shadow Rapporteurs is on Tuesday May 16, we have no time to waste in sounding the alarm about how misguided and destructive this amendment is. A list of the CULT members who are considering the proposal can be found here, complete with email and social media contact details.
EFF's European supporters are urged to contact their representatives with a simple message: to oppose any amendment to the Digital Single Market Directive that would create a new unwaiveable right to fair remuneration on online streaming platforms. The future of free culture in Europe depends upon it.
Police in California have your data literally at their fingertips.
They can sit at a computer terminal or in their squad car and check your DMV records, your criminal records, your parking citations, any restraining orders you’ve filed or have been filed against you. They can search other state databases and even tap into the FBI’s trove. If you’ve got a snowmobile, they can look up that registration too. Much of this personal data they can access through a smartphone app.
Is there a name for this information network? Yes, it’s really boring: the California Law Enforcement Telecommunications System (CLETS). Most people pronounce it “Clets.”
Is anybody doing anything about CLETS misuse? Yes and no. Certainly EFF has been making noise about privacy violations involving CLETS. The government, not so much.
For years, we’ve pushed for better data to track when California cops misuse CLETS data. We have filed request after request for misuse data under the California Public Records Act. We’ve sent letters, met with staff, assisted journalists, and spoken up during public meetings to demand state officials overseeing these databases take some sort of action. This is the third report we’ve published on misusedata.
Yet state officials have made zero progress in addressing widespread database misconduct. No hearings on misuse have been held, no disciplinary actions have been taken, and the horror stories continue to mount.
Who are these state officials? Get ready for another boring acronym: the CLETS Advisory Committee (CAC). Yes, CAC is an acronym containing an acronym. Most people pronounce it “Cack.”
CAC was created by the California legislature decades ago to oversee CLETS as part policy body, part disciplinary board. It comes under the California Department of Justice and works hand in hand with CADOJ’s Criminal Justice Information Services department. CAC has 11 members, with more than half being appointed by special interest groups that lobby for law enforcement and municipalities. That means CAC is controlled by groups that are predisposed to support—not punish—their members. As a result, the body has gone out of its way to pass policies that police ask for, while simultaneously taking a largely hands-off approach to discipline.
It used to be that CADOJ and CAC investigated violations, but several years back they handed off that responsibility to the individual agencies that subscribe to CLETS. Nowadays each of those agencies is required to file disclosures about each investigation they conduct, including an annual summary for CAC to review. Then CAC decides whether further administrative action is necessary
Or at least that’s how it’s supposed to work. CAC has not even looked at the misuse data in years, and consequently, they’ve taken no action whatsoever against anyone or any department—not even a “don’t do it again” warning letter.
What’s even worse is that they’ve been remarkably lax about whether agencies need to file anything about CLETS violations at all. This year some of the state’s largest law enforcement agencies failed to file the mandated paperwork. Meanwhile, agencies that do report often list investigations as “pending,” but never follow-up with the eventual outcome as required.
So, when EFF obtained the latest round of misuse data, we knew it would be bad. But we also knew it would be incomplete—the tip of a very large, blue iceberg.
Police agencies disclosed that a total of 159 misuse investigations were launched in 2016. Of those, 117 investigations found that police had in fact abused CLETS. Another 39 cases were listed as pending conclusion. That means there were only a small number of cases—potentially in single digits—where an investigation cleared the officer.
Let’s focus on those 117 cases of confirmed misuse. They represent a 14.5% increase over misuse in 2015, and a 50% increase over 2011.
In 27 cases, the misuse was so severe that the offending police officer either resigned or was terminated. Three cases resulted in a misdemeanor conviction, and three cases resulted in a felony conviction.
In 24 cases, no action was taken to discipline the offending officer at all. In 28 cases, the result was “counseling.” Another 21 mystery cases were listed as “other” action having been taken, leaving the public in the dark.
When we opened the data file, two agencies immediately jumped out as repeat offenders.
First, there was the Oakland Police Department, who for the first time since we’ve been collecting data, actually turned in their disclosures. That’s the good news.
The bad news is that they reported 17 cases of CLETS misuse—the highest number for any agency in at least seven years. These are likely related to the ongoing, expansive scandal in which at least one OPD officer is accused of providing CLETS records to a teenage sex worker whom he—and many other officers—allegedly sexually exploited.
The head of OPD’s internal affairs department filed the hard copy of the disclosure with CADOJ. However, when we called OPD’s public affairs division, a spokesperson challenged the numbers, staying that only 1 misuse case was found in 2016, while the remaining 16 are still pending. That’s still bad and possibly even worse, if it turns out OPD provided wildly inaccurate data to CADOJ.
The Yuba County Probation Department—a very small agency in central-northern California—also drew our attention. In 2015, they broke the record with 15 violations of CLETS policy, all of which resulted in only “counseling” for the officers who broke the rules. CADOJ ignored our request for a public hearing on this. Facing no action to deter further violations, Yuba reported another six cases of misuse in 2016—again with counseling as the only outcome.
What was missing from the data also jumped out at us. The Los Angeles Police Department for the seventh year in a row filed no misuse disclosures with the state. Typically, the San Diego County Sheriff’s Office conducts more investigations into CLETS misuse than any other agency. This time, they did not file anything at all.
Oversight on Hold
Will this be the year CADOJ and the CLETS Advisory Committee finally steps up to protect our privacy? Probably not. In December, CADOJ failed to produce historical misuse statistics as requested by CAC, so the committee agreed to postpone discussion until its next meeting. However, since CAC reduced its meetings to the statutory minimum of two per year, it won’t meet again until this summer. The year will be half over and, if the trend continues, many, many more people will have had their privacy invaded by misbehaving police.
One thing you can count on: EFF will continue to pressure these state officials, and if we can’t get them to do their jobs, then it’s time for the legislature to find someone else who can.
A Note on CLETS and the California Values Act
EFF has fielded a lot of questions recently about CLETS as legislators consider S.B. 54, the California Values Act. The bill, among other measures to protect immigrants, would limit the federal government’s access to California’s law enforcement databases for the purposes of immigration enforcement. CLETS would clearly fall into that category.
During the bill-making process, S.B. 54 was amended to allow immigration officials to access criminal history information via CLETS. EFF is very concerned that this CLETS provision would create a backdoor to the very data the bill was designed to protect. While S.B. 54 may still protect some Californians’ data accessible through CLETS from immigration officials, implementation of those protections would require an oversight body with the motivation to enforce the law.
That oversight body would be—you guessed it—the same CLETS Advisory Committee that refuses to take any action on database abuse by police officers. In fact, several of the organizations that have seats on CAC—including the California Peace Officers’ Association and the California State Sheriffs’ Association—are actively lobbying against S.B. 54.
EFF supports S.B. 54 and believes it will do much to protect the data of California residents. However, we hope that as lawmakers build a firewall against data misuse by the feds, they take a close look at the officials who would be watching the CLETS gateway.
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was one of the most fiercely contested treaty negotiations at the World Intellectual Property Organization (WIPO). Representatives of publishers and other copyright holder groups spent years unashamedly lobbying against an instrument that would provide access to the written word to blind and other print disabled users. Despite their efforts to derail the negotiations, the treaty was finally agreed in 2013, and came into force last year.
But that wasn't the end of it. An important step towards the realization of the treaty's benefits is the implementation of the treaty by the countries where the books for adaptation into accessible formats are published. It happens that a large proportion of those books, especially those in French (which is spoken in many parts of Africa) and in Spanish (spoken throughout Latin America), originate from Europe. Therefore many blind and print disabled users have eagerly awaited Europe's implementation of the Marrakesh Treaty to unlock its many promised benefits.
Publishers as well have been keenly aware of the importance of Europe's implementation of the treaty. They have been lobbying European lawmakers to implement it in the narrowest way that the treaty allows. This week, a breakthrough was reached when lawmakers from the three European institutions (the European Parliament, the Council of the European Union, and the European Commission) reached a compromise on the text of the Directive that will implement the treaty.
The main sticking points were whether the Directive would require those who adapt works into accessible formats to pay compensation to the publishers of the original works, whether there should be a ban on creating accessible copies of works when copies are also commercially available, and whether only "authorized entities" would be permitted to create accessible-format works. On most of these issues the interests of blind and print disabled users have prevailed, with one exception: Individual European countries may require that publishers be paid compensation when adaptations of works are made by authorized entities such as charities and libraries in that country. Recital 11 of the text of the compromise Directive summarizes the effect of this:
Member States should only be allowed to provide for compensation schemes regarding the permitted uses of works and other protected subject-matter by authorised entities. In order to avoid burdens for beneficiary persons, prevent barriers to the cross-border dissemination of accessible format copies and excessive requirements on authorised entities, it is important that the possibility for Member States to provide for such compensation schemes is limited.
Compensation schemes should therefore not require payments by beneficiary persons. They should only apply to uses by authorised entities established in the territory of the Member State providing for such a scheme and they should not require payments by authorised entities established in other Member States or third countries that are parties to the Marrakesh Treaty. ... Account should also be taken of the particular circumstances of each case, resulting from the making of a particular accessible format copy. Where the harm to a rightholder would be minimal, no obligation for payment of compensation may arise.
It would have been better if the Directive had simply ruled out the need for payment of compensation for the adaptation of works for blind and print disabled users. In almost all cases, adapting copyright works for the blind is undertaken from a motive of compassion, not profit. Indeed, if there were profit in it, blind users would not be suffering the "book famine" that results in them having access to only 1% of published books in accessible formats in poor countries, and only 7% in rich countries.
Nevertheless, the implementing Directive will not impose payment conditions on foreign entities or those from other EU member states, which will likely mean that most of the adaptation of works for blind and print disabled users will be conducted in countries that do not impose a requirement of compensation. Even works that are meant for users within such a country will likely be imported from overseas. The right to import adapted works from other countries is a key feature of the Marrakesh Treaty, and a feature that the European Directive will preserve.
Overall then, despite being somewhat tarnished by the self-interested demands of publishers, the overdue implementation of the Marrakesh Treaty in Europe is to be welcomed. Its success affirms the consensus of WIPO member states that international law on copyright shouldn't be in the service of copyright holders alone, but needs to reflect a balance of interests of creators and users, including disadvantaged users such as those who are blind, vision impaired, and print disabled.
On May 9, the Public Safety Committee of the Oakland City Council voted unanimously to approve a proposed “Surveillance and Community Safety Ordinance.” The measure, passed on to the Council by the city’s Privacy Advisory Commission, is modeled on a law enacted in spring 2016 by Santa Clara County and could set a new standard for municipal reforms seeking transparency, oversight, and accountability to restrain otherwise unrestrained surveillance.
The measure could set a new standard for municipal reforms seeking transparency, oversight, and accountability to restrain otherwise unrestrained surveillance.
Once approved by the full Council, the ordinance will require the Oakland Police Department to seek City Council approval before adopting or deploying new surveillance technologies. The measure will also provide community members with an opportunity to comment on such proposals, and the use policies for these technologies, before the City Council makes its decisions.
Importantly, these requirements will apply to any surveillance platform, even ones that have yet to be developed and might not emerge for several years. The measure’s device-neutral requirements for transparency and public process will ensure local democratic control over the adoption and use of powerful spying technologies into the future.
Supporters of the measure packed the council room on Monday, and spanned a number of organizations across the community representing a variety of constituencies and perspectives.
Unfettered surveillance doesn't just waste public money and abuse our civil liberties. It endangers lives. Trump has access to tools that would make the Stasi and KGB envious. We must institutionalize limits to surveillance, prohibit secret uses, require maximum oversight and transparency, and impose penalties for misconduct.
Catherine Crump, co-director of UC Berkeley's Center for Law and Technology has similarly emphasized that the problem inheres in secrecy, and that public process can help prevent potential violations of rights and liberties.
Several advocates addressed the discriminatory impact of surveillance. For instance, Tracy Rosenberg of the Media Alliance noted, “Without lifting the veil of secrecy surrounding use of surveillance technologies upon vulnerable groups, we cannot have truly safe communities. This ordinance is all about genuine public safety – for all of us who live, work in, and visit Oakland.” Christina Sinha, who co-leads the National Security and Civil Rights Program of Asian Americans Advancing Justice, also suggested that the ordinance could help support the rights of marginalized communities.
EFF Grassroots Advocacy Coordinator Camille Ochoa reminded Council members, “Effective policing can only be built upon trust. Trust is fostered when we build processes that are transparent and responsive to the will of the people. This ordinance is a step in the right direction.”
Having gained the committee’s approval, the ordinance will next go to the full Council to consider before a vote later this year on a date to be determined.
Local and state governments regularly collect personal information about us and store it in databases–often without our knowledge and consent. Even when government has a seemingly benevolent purpose for doing so, government all too often reuses that data in a manner that hurts us.
Given Pres. Donald Trump’s promise to deport millions of immigrants, and a surge in immigration enforcement against people not engaged in criminal activity, we fear California databases will be misused to target immigrants communities. Many state and local government agencies have databases that the federal government might try to use to identify, locate, and deport immigrants.
That’s why EFF supports S.B. 54, the California Values Act. This bill would bar California law enforcement agencies (including state, local, and school police) from sharing their databases for purposes of immigration enforcement.
In April, the California Senate approved S.B. 54 and sent it on the California Assembly. EFF has renewed its support for S.B. 54. We hope you will, too.
Recent events in Providence, RI demonstrate both how a sustained grassroots campaign can create opportunities for civil rights and civil liberties, and also how quickly those opportunities can be derailed by institutional actors. While the latest City Council decision delayed reform efforts and frustrated community members, policymakers will return in a few weeks to the crucial questions they deferred.
The Council’s April 27 vote effectively placed on hold a wide-ranging reform measure it had unanimously supported only a week before.
After three years of advocacy uniting communities across Providence, the City Council on April 20 voted unanimously to adopt a set of groundbreaking protections for civil rights and civil liberties, including digital civil liberties. The proposed Community Safety Act (CSA) would, among other things, require police to justify any instance of targeted electronic surveillance, protect the rights of residents to observe and record police activities, and ensure due process protections for individuals otherwise arbitrarily included in gang databases.
Within a week of its April 20 vote, however, increasingly strident objections by the local police union drove the Council to reverse itself on April 27, deciding by a vote of 9-5 to table the ordinance until June 1. The Council’s April 27 vote effectively placed on hold a wide-ranging reform measure it had unanimously supported only a week before, deferring to forthcoming recommendations by a working group created by the Council to suggest potential amendments.
A letter from the Providence Fraternal Order of Police to the Council the day before the April 27 vote reveals the chasm separating the perspectives of residents responding to the needs of communities. It reflects an attitude of entitlement among public safety officials who seem to view civil rights and civil liberties as impediments to their work, rather then the defining cornerstones of the society they pledge themselves to serve and protect.
In the letter, the executive board of the Providence Fraternal Order of Police express incredulity at the prospect that community members would feel the need to be kept safe from police, overlooking years of continuing controversy inflamed by recurring incidents of arbitrary and unaccountable police violence across the country.
As a matter of unfortunate fact, law-abiding Americans do increasingly feel the need to be kept safe from police. That’s why tens of thousands have taken to the streets responding to incidents of police violence. That’s also why local legislators around the country are taking action to ensure transparency and enable civilian oversight of police, impose limits on the use of surveillance devices, and refine procedures for seemingly "routine" searches to buttress fundamental constitutional protections that have been widely eroded in practice.
Negotiations with the working group will continue over the course of this month, until the Council revisits the CSA and the working group's recommendations on June 1. Providence community members will discover then whether their elected leaders answer to them, or instead to groups representing the police. For his part, Mayor Jorge Elorza has reiterated his intent to sign the proposed Community Safety Act into law should the Council ultimately stand by its prior decision.
The Electronic Frontier Foundation and the ACLU of California joined forces with California State Sen. Joel Anderson (R-Alpine) on Tuesday to testify in favor of S.B. 712, a bill that would have allowed drivers to cover their license plates when parked in order to protect their travel patterns from private companies operating automated license plate readers (ALPRs).
The Senate Transportation and Housing Committee heard testimony on how private ALPR companies are collecting massive amounts of data on innocent people's driving patterns and selling it for profit. Despite learning how this data may be misused to target vulnerable communities by the federal government, a Democratic majority voted to kill the bill 6-5.
The bill would have adjusted current law, which allows drivers to cover their entire vehicles (for example with a tarp), so that a driver can cover just a portion: the plate. Police would still have the ability to lift the cover to inspect the plate, and since the measure only applied to parked vehicles, it would not have affected law enforcement's ability to collect data on moving vehicles.
Here's the text of EFF's opening testimony from the hearing:
Mr. Chair and Members.
My name is Dave Maass, and I represent the Electronic Frontier Foundation, a sponsor of S.B. 712. EFF is a non-profit organization that defends civil liberties as the world becomes a more digital place.
I am a researcher who investigates police technology. My previous work has resulted in agencies fixing insecure surveillance cameras, a federal fraud investigation into child-safety software, and increased disclosure of misuse of police databases.
Since November, not a week has gone by when I haven’t been asked the same questions: How do we protect our communities from being targeted? More chillingly, they ask: Do we need to start building a new Underground Railroad?
I immediately think about the massive amount of data being collected by automated license plate readers operated by private companies: billions and billions of data points mapping out our travel patterns. These companies rent this data to law enforcement but they also sell it to the private sector. Lenders examine travel patterns before approving a loan. Insurers look at travel patterns before quoting a rate. Collections agencies use it to hunt down debtors.
A user could easily key in the address of a mosque, an immigration law clinic, an LGBT health center to reveal whole networks of vulnerable communities. A user could program the system to identify associates and get real time alerts about a driver’s whereabouts.
In 1972, voters agreed that we have an inalienable right to pursue and obtain privacy. Your predecessors in the legislature explicitly stated this amendment would protect us from computerized mass surveillance by police and private companies.
SB 712 allows Californians to cover our plates when our vehicles are lawfully parked. This is a balanced approach that would not affect how police use ALPR technology to monitor moving vehicles.
Today you are voting on whether we can exercise our constitutional right to privacy against advanced surveillance systems logging our travel patterns. Thank you for this opportunity. I respectfully ask for your aye vote.
These senators voted in favor of the legislation: Sens. Anthony Cannella (R-Ceres), Ted Gaines (R-El Dorado), Mike Morrell (R-Rancho Cucamonga), Nancy Skinner (D-Berkeley), and Scott Wiener (D-San Francisco). EFF thanks these lawmakers for their support for motorists’ location privacy.
Voting in opposition were: Sens. Ben Allen (D-Santa Monica), Toni Atkins (D-San Diego), Jim Beall (D-San Jose), Mike McGuire (D-Healdsburg), Richard Roth (D-Riverside), and Bob Wieckowski (D-Fremont). Several cited vague public safety and parking enforcement concerns.
Some of these senators acknowledged the threat to our privacy caused by ALPR companies and suggested that different, perhaps more robust legislation was necessary. EFF looks forward to taking these senators at their word and pursuing further privacy protections next session.
The FBI is the country’s top law enforcement agency and serves the public, not the president. As defenders of the rule of law, we have deep concerns about President Trump's firing of FBI Director James Comey. We disagreed with the director on many issues, including his consistent push for backdoors into our electronic communications and devices and a general weakening of encryption, which is crucial to protecting Americans' privacy and security. But we are deeply troubled about Director Comey’s termination and what it says about the independence of the office and its ability to conduct fair investigations, including into threats to our digital security and the integrity of our elections. The next FBI director must be a strong, independent voice for the Constitution and the public interest.