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.
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.
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.
The federal government thinks it should be able to use one warrant to hack into an untold number of computers located anywhere in the world. But EFF and others continue to make the case that the Fourth Amendment prohibits this type of blanket warrant. And courts are starting to listen.
Last week, EFF pressed its case against these broad and unconstitutional warrants in arguments before a federal court of appeals in Boston, Massachusetts. As we spelled out in a brief filed earlier this year, these warrants fail to satisfy the Fourth Amendment’s basic safeguards.
The case, U.S. v. Levin, is one of hundreds of prosecutions resulting from the FBI’s 2015 seizure and operation of a child pornography site “Playpen.” While running the site, the FBI used malware—or a “Network Investigative Technique” (NIT), as they euphemistically call it—to infect computers used to visit the site and then identify those visitors. Based on a single warrant, the FBI ended up hacking into nearly 9,000 computers, located in at least 26 different states, and over 100 countries around the world.
But that’s unconstitutional. One warrant cannot allow law enforcement to hack into thousands of computers wherever they are in the world. As law enforcement defended these blanket hacking warrants and pushed for federal rule changes to allow them—and as Congress stood by and idly let this rule change go into effect—we’ve been fighting in court to make sure that the Fourth Amendment’s protections don’t disappear as law enforcement begins to rely on hacking more and more.
And there are signs that courts are beginning to recognize the threats to privacy these warrants pose. Earlier this year, a federal magistrate judge in Minnesota found [PDF] that the warrant the FBI relied on in the Playpen case—the same warrant we were arguing against in Levin—violated the Fourth Amendment.
In the February report, Magistrate Judge Franklin Noel described how the government’s NIT fails the Fourth Amendment’s requirement that warrants describe a particular place to be searched, agreeing with arguments we’ve made to courts in other Playpen prosecutions. The warrant in this case fails to satisfy that requirement because, at the time the warrant was issued, “it is not possible to identify, with any specificity, which computers, out of all of the computers on earth, might be searched pursuant to this warrant,” Noel wrote.
He also explained how the warrant essentially flips the Fourth Amendment’s particularity requirement on its head, searching and then identifying specific computers instead of identifying specific computers and then searching them. “Only with [information gathered through the use of malware] could the Government begin to describe with any particularity the computers to be searched; however, at that point, the computer had already been searched.”
It’s encouraging that courts are beginning to agree with arguments from us and others that these warrants far exceed the Fourth Amendment’s limits on government searches.
As the Playpen prosecutions begin to work their way up to the courts of appeals, the stakes become higher. The decisions these courts reach will likely shape the contours of our constitutional protections for years to come. We’ve filed briefs in every appeal so far, and we’ll continue to make the case that unfamiliar technology and unsavory crimes can’t justify dispensing with the Fourth Amendment’s requirements altogether.
FCC Chairman Ajit Pai has proposed a plan to eliminate net neutrality and privacy for broadband subscribers. Of course, those protections are tremendously popular, so Chairman Pai and his allies have been forced to pay lip service to preserving them in “some form.” How do we know it’s just lip service? Because the plan Pai is pushing will destroy the legal foundation for net neutrality. That’s right: if Pai succeeds, the FCC won’t have the legal authority to preserve net neutrality in just about any form. And if he’s read the case law, he knows it.
Let’s break it down.
The FCC’s Proposal Makes It Impossible to Enforce Core Net Neutrality Requirements
Under the Telecommunications Act of 1996, a service can be either a “telecommunications service,” like telephone service, that lets the subscriber choose the content they receive and send without interference from the service provider, or it can be an “information service,” like cable television or the old Prodigy service, that curates and selects what content channels will be available to subscribers. The 1996 law provided that “telecommunications services” are governed by “Title II” of the Communications Act of 1934, which includes nondiscrimination requirements. “Information services” are not subject to Title II’s requirements.
Under current law, the FCC can put either label on broadband Internet service – but that choice has consequences. For years, the FCC incorrectly classified broadband access as an “information service,” and when it tried to impose even a weak version of net neutrality protections the courts struck them down. Essentially, the D.C. Circuit court explained [PDF] that it would be inconsistent for the FCC to exempt broadband from Title II’s nondiscrimination requirements by classifying it as an information service, but then impose those requirements anyway.
The legal mandate was clear: if it wanted meaningful open Internet rules to pass judicial scrutiny, the FCC had to reclassify broadband service under Title II. It was also clear to neutral observers that reclassification just made sense. Broadband looks a lot more like a “telecommunications service” than an “information service.” It entails delivering information of the subscriber’s choosing, not information curated or altered by the provider.
It took an Internet uprising to persuade the FCC that reclassification made practical and legal sense. But in the end we succeeded: in 2015, at the end of a lengthy rulemaking process, the FCC reclassified broadband as a Title II telecommunications service and issued net neutrality rules on that basis. Resting at last on a proper legal foundation, those rules finally passed judicial scrutiny [PDF].
But now, FCC Chairman Ajit Pai has proposed to reverse that decision and put broadband back under the regime for “information services” – the same regime that we already know won’t support real net neutrality rules. Abandoning Title II means the end of meaningful, enforceable net neutrality protections, paving the way for companies like Comcast or Time Warner Cable to slice up your Internet experience into favored, disfavored, and “premium” content.
Title II Is Not Overly Burdensome, Thanks to Forbearance
While we are on the subject of the legal basis for net neutrality, let’s talk about the rest of Title II. Net neutrality opponents complain that Title II involves a host of regulations that don’t make sense for the Internet. This is a red herring. The FCC has used a process called “forbearance” – binding limits on its power to use parts of Title II – to ensure that Title II is applied narrowly and as needed to address harms to net neutrality and privacy. So when critics of the FCC’s decision to reclassify tell horror stories about the potential excesses of Title II, keep in mind that those stories are typically based on powers that the FCC has expressly disavowed, like the ability to set prices for service.
What is more, Title II offers more regulatory limits than the alternative of treating broadband as an information service, at least when it comes to net neutrality. Where Title II grants specific, clear, and bounded powers that can protect net neutrality, theories that do not rely on Title II have to infer powers that aren’t clearly granted to the FCC. As proponents of limited regulation, these theories concern us. The proper way to protect neutrality is not to expand FCC discretion by stretching the general provisions of the Telecommunications Act (an approach already rejected in court), but to use a limited subset of the clear authorities laid out in Title II.
The FTC Cannot Adequately Protect the Privacy of Internet Subscribers
Reclassifying broadband as an information service not subject to Title II also creates yet another mess for subscriber privacy. The FCC crafted good rules for Internet privacy, but Congress just rejected them. But it left in place the FCC’s underlying authority to protect privacy under Title II, which leaves privacy in limbo. Abandoning Title II for broadband altogether would mean that the FCC no longer has much of a role to play in protecting broadband privacy – and it’s not clear who will fill the gap.
Some have looked to the FTC to take up the mantle, but just last year AT&T persuaded a federal appeals court that, as a company that also owned a telephone business, the FTC had no power over any aspect of AT&T. That precedent covers the entire west coast and leaves millions of Americans without recourse for privacy violations by their Internet service provider. And there’s no doubt that AT&T and others will try to extend that precedent across the country.
Tell the FCC to Keep Title II and Not Undermine Net Neutrality
The FCC is now accepting comments on its plan. Make yourself heard via DearFCC.org.