For many people who care about innovation, the sign of a successful patent system is one that leaves them alone. But lately, that's become nearly impossible. Instead, it's widely understood that if you have a successful business or product, you'll get hit with a patent threat or even a lawsuit—an unfortunate tax on innovation. Since no one is immune, it's important that parties are able to protect their own best interests, both in the courts and at the patent office (PTO).
That's precisely why parties who do not often find themselves in front of the PTO but whose day-to-day activities may depend on what's happening there should have an avenue to get involved. They should be able to challenge patents that maybe shouldn't have been granted in the first place. And that's also why EFF joined the Computer & Communications Industry Association yesterday in filing comments with the patent office protesting fee hikes for all kinds of third-party filings that would allow those types of challenges.
You might remember that earlier this year we filed similar comments, complaining about new fees for reexamination that would total more than $17,000. The somewhat good news is that the patent office appears to have listened: that fee would now be lowered for certain small entities (including non-profits like EFF) to $7,500, a number we still think is way too high. But, even worse, the fees for other types of reexamination procedures—where third parties may challenge patents that were just granted or other specific categories of patents, or institute a more adversarial reexam process—are outrageously high (in some instances, well into the tens of thousands of dollars). And those fees do not include any repreive for small business, individuals, or public interest groups.
EFF and CCIA requested that the PTO reverse course on the dangerous trend of making third-party participation in the patent office too expensive. We also recommended that the PTO adopt a fee-shifting regime, similar to that proposed in the SHIELD Act, that would allow parties who challenge bad patents to recover some of the costs and fees associated with mounting a successful challenge. In order for the system to get better, it's important that all stakeholders' voices be heard. We hope the patent office recognizes this and institutes a new fee regime that does not set the bar to entry too high for many to participate. Also, we hope you'll make your voice heard at defendinnovation.org!
This is a first for us in all of EFF's history of Freedom of Information Act (FOIA) litigation—Immigrations and Customs Enforcement (ICE) has demanded we return records it gave us more than a year ago. The release of these documents doesn't endanger national security or create a risk to an ongoing law enforcement investigation. Instead, it seems that ICE simply wants to stymie further FOIA requests from EFF as we try to get answers about the government's electronic surveillance procedures.
It started a year ago when ICE produced records in response to one of our Freedom of Information Act lawsuits. The records show that companies like Comcast, Cricket Communications, Metro PCS, Southern Linc Wireless, and T-Mobile either pushed back on or failed to comply with specific requests for information on their customers. For example, in response to one of ICE’s pen register/trap and trace orders, Southern Linc said it “did not like the wording of [the] order” and “would not give ‘real time’ ping location for [the] phone, [it] would only give 1 hour old history.” ICE also reported that it experienced “technical issues . . . on almost a daily basis” trying to get data on a suspect from Cricket Communications.” And Comcast gave ICE the runaround for a month before it turned over IP log history.
These records are the first we’ve received in response to our FOIA litigation that actually provide some of the information we asked for—specific examples of problems federal agents have faced getting companies to comply with communications surveillance orders. We filed this request two years ago after the New York Times reported that the FBI and other agencies were pushing Congress to expand the Communications Assistance for Law Enforcement Act (CALEA) to require companies like Blackberry, Skype and Google to build back doors into their systems. And ICE should be commended for releasing these records with only minimal redactions.
However, ICE should not be commended for what happened next. Based on the important information revealed in this limited set of records, we asked ICE to give us copies of all other records that looked like these. It didn’t seem like a tough request to fill, given that these seem to be standardized reports—and that we included a copy of the records so that ICE would know what to look for.
But ICE refused. First the agency argued EFF’s request was too broad—that it couldn’t possibly search through all its individual offices to find these forms (despite the fact that ICE officers seemed to be encouraged to send the forms to a central fax number). So, to lessen the burden on the agency, we narrowed our FOIA request to cover only a handful of specific ICE offices that reported having problems.
It took ICE almost a year to get back to us on the narrowed request, and when it did, its response was frustrating. Not only did the agency decide that it would still be too burdensome to conduct any kind of a search for similar records, but ICE also told us it never should have turned over the original records in the first place—and it wanted them back. The problem for ICE is, these records have already been in the public’s hands for over six months—we filed them as an exhibit (pdf) in our FOIA litigation (pdf) in March 2012, and they’re readily available on the PACER docket for the case (or from the Internet Archive).
This is yet another example of the federal government failing to comply with the letter and spirit of the Freedom of Information Act—reverting to secrecy when it should be promoting transparency. It’s hard to imagine what harm could come from the release of these documents. ICE was careful to block out any information in the records that would identify the target of the investigation, and the information that isn't blocked out seems to reinforce the government's position on CALEA.
And it’s another disappointment from an administration that lauded its commitment to transparency on the first day the President took office four years ago. We can only hope that if the President wins this tight election, he’ll use the next four years to fulfill this commitment.
EFF is urging voters in California to vote no on Proposition 35 in the upcoming election. The proposition calls for new restrictions on registered sex offenders, including that they provide a list of all Internet service providers they use and a list of all their online accounts -- such as usernames, email accounts, and Twitter handles. EFF opposes this proposition because it would create new restrictions on online speech and increased government surveillance of the online accounts for a class of individuals, creating a dangerous legislative model for policing unpopular groups in the future. While we share concerns about human trafficking and want to make sure the law is as effective as possible, we believe that censorship and increased surveillance of an entire class of people is not the right legislative fix for this troubling problem.
Many have joined EFF in opposing this proposition. In addition to the Los Angeles Times officially endorsing a 'no' vote, the paper's Editorial Board wrote a scathing criticism of the initiative, noting that while California’s law in this area "has been fine-tuned more than a dozen times over the last seven years as experience was gained," Proposition 35 would "substitute a web of poorly drafted laws that expand the sex offender registry" and "divert resources from victims." The Sacramento Bee Editorial Board also opposes the proposition, calling it "overbroad and misdirected." It also notes that previous attempts to force registered sex offenders to report all Internet identifiers were rejected by the legislature "because they impose a costly and burdensome requirement on local law enforcement agencies."
The American Civil Liberties Union has also voiced their opposition. Francisco Lobaco, legislative director for the ACLU of California, stated:
The Supreme Court has long held that the First Amendment protects the right to speak anonymously. The initiative infringes on that right of registrants to speak anonymously on the Internet, because it means a person who is convicted decades ago of a relatively minor sex offense, such as indecent exposure, or a crime that has absolutely nothing to do with either children or the use of the Internet, must now inform the police of any name he or she uses in any sort of online discussion group.
As the ACLU noted, Proposition 35 would force individuals to provide law enforcement with information about online accounts that are wholly unrelated to criminal activity – such as political discussion groups, book review sites, or blogs. In today’s online world, users may set up accounts on websites to communicate with family members, discuss medical conditions, participate in political advocacy, or even listen to Internet radio. An individual on the registered sex offender list would be forced to report each of these accounts to law enforcement within 24 hours of setting it up – or find themselves in jail. This will have a powerful chilling effect on free speech rights of tens of thousands of Californians.
While Proposition 35 facilitates government monitoring of certain online accounts, it doesn’t add safeguards for civil liberties or privacy. The proposition leaves unclear who will be tasked with reviewing these lists of online accounts for accuracy and completeness, and there are few limits on how the data could be used. There is substantial risk that law enforcement will subject these accounts to additional monitoring, and that officials might turn these lists of accounts over to ISPs or popular web services and solicit the assistance of these intermediaries in monitoring users’ online behavior. For example, if an individual on the registered sex offender list participates in an online political forum, will law enforcement actively monitor these discussion groups? Will other individuals on that forum face increased scrutiny because one of the forum members is on the registry? There are also risks to online accounts that are shared between household members – such as joint Netflix accounts – which will be subject to the same rules of reporting to the police, thus implicating the data of individuals who have committed no crime other than sharing an account with someone on the registry.
Some people who find themselves listed in sex offender registries have joined up with concerned scholars and civil libertarians to advocate for reform to the laws – and they’re using the Internet to raise awareness about the issue. Reform Sex Offender Laws, a web-based campaign launched in the late 1990's, highlights how sex offender laws erode civil liberties and disrupt normal social interactions. But Proposition 35 will stunt this type of advocacy for legislative reform, forcing activists in California who are on the registry to turn over the accounts they use for activism purposes. Regardless of your opinions about sex offender laws, our democratic society benefits when people with a wide range of views have equal rights to debate the issues of the day and discuss the best way to solve problems -- whether on a soapbox in a public square or on a Twitter account from a mobile phone.
While we are deeply concerned for the victims of sex trafficking, this proposition unconstitutionally compromises the free speech rights of an entire class of individuals and creates new avenues for government monitoring of online communities. We ask voters in California to come out to the polls on Tuesday and join us in voting no on Proposition 35.
After nearly two years of non-stop social unrest and protests against the ruling monarchy, things have taken a precipitous turn for the worse for civil liberties in Bahrain this week. Martial law rules have been in effect in the tiny Gulf nation since late last year, but on Tuesday, the government took the remarkable step of declaring a ban on all public rallies and demonstrations--a move government spokesman, Fahad al-Binali claims is “temporary” and intended to “calm things down” after the recent deaths of protesters and police officers.
The US State Department condemned the declaration as an attack on Bahraini citizen’s universal human rights to free expression and association. State Department spokesman Mark Toner expressed “deep concern,” adding that he urged the government of Bahrain to "work with responsible protest leaders to find a way for peaceful and orderly demonstrations to take place. The decision to curb these rights is contrary to Bahrain's professed commitment to reform and will not help advance national reconciliation nor build trust among all parties.” The US has a strong interest in maintaining stability in Bahrain, which hosts the US Navy’s 5th Fleet.
British minister for the Middle East and North Africa Alistair Burt joined the chorus of disapproval, calling the move “excessive” and reminding the monarchy that “peaceful protest is a democratic right.” U.N. Secretary-General Ban Ki-moon was somewhat more forceful in his criticism, pointing out that the restrictions violate international human rights standards, including respect for freedom of expression, peaceful assembly and association, and urging the government to lift them immediately.
Rather than lifting the restrictions, the Bahraini government has continued full steam ahead. On Thursday, a civil court sentenced an online activist to a six-month prison term on charges of insulting the King in a Twitter post. The activist, whose name was not released, was one of four people arrested weeks ago for the same crime. The court is expected to rule in the other three activists’ cases next week. In addition to the sentence, the Bahrain News Agency reports that the court ordered the confiscation of the activist’s laptop and cell phone, which may result in the unearthing of evidence that might result in additional charges.
In the meantime, the arrests continue. On Friday, Photojournalist Mazen Mahdi reported that Said Yousif Almuhafda, head of Monitoring for the Bahrain Centre for Human Rights had been detained while taking part in a peaceful protest in the village of Duraz, in defiance of the ban on public protest.
EFF joins with the US State Department, Great Britain, and the United Nations, and countless human rights organizations including Amnesty International in condemning the Bahraini government’s ongoing attacks on its citizens’ right to freedom of assembly and free expression. We will continue to keep a close eye on the situation as it develops.
It's not uncommon for copyright licenses to include a bit of overblown legalese about how the contract applies "throughout the known universe." Usually that bit of sci-fi language is just meant to cover all the bases, but what if it actually gets put to the test? Year Zero, published this summer to rave reviews, explores that question, taking on draconian U.S. copyright law from an extraterrestrial perspective.
(He should know a thing or two about the intricacies and oddities of copyright law: Reid was also the founder of Listen.com, which created the Rhapsody digital music service.)
In the book, the protagonist Nick Carter is a junior lawyer at a big-time entertainment law firm. While Year Zero is a work of fiction, the firm's actions sound familiar enough: they push for overbroad and draconian copyright laws, and work with studios and record labels to enforce those laws through ridiculous lawsuits.
His career is going smoothly until he receives a visit from by a group of unusual potential clients. They're unusual not just because they're seeking an incredibly large deal — licenses to make unlimited reproductions of all of the world's music output, forever — but also because they're aliens, obsessed with our tunes.
In the story, as Carter goes to great lengths to try to help them, he encounters challenges along the way from absurdities that have been worked into the law over the years. In many cases, it was firms like his that worked these loopholes and hurdles into legislation. Much of the book's humor lies in the truth that, while we take much of the system for granted, it makes very little sense when you have to explain it to somebody totally unfamiliar, or even from another planet.
That's the same brand of humor on display in Reid's widely discussed TED talk from earlier this year, "The $8 Billion iPod." Some parts of the copyright discussion have gotten so disconnected from reality that just saying them out loud is funny.
But in the tradition of Douglas Adams or Terry Pratchett, there are plenty more laugh lines throughout the book. Nick Carter is fast-talking even when he's in over his head — a position he seems to find himself in a lot. And the aliens keep him on his toes, at times reflecting his own culture back at him, and at times seeming just as out-of-this-world as they truly are.
In all, Year Zero is a very funny examination of human culture and U.S. copyright, and reflects the kind of intimate knowledge that comes from an in-depth background in the tech and copyright world. We're looking forward to hearing more thoughts from Rob Reid at our Geek Reading event. If you're in San Francisco, you should join us!
This week marks the first time in five years since the last Privacy and Civil Liberties Oversight Board (PCLOB) meeting. The board is an independent body within the President's office that is supposed to ensure privacy and civil liberties in the creation and implementation of US law and policy and executive branch actions against terrorism, but has languished for some time due to Presidential neglect.
On Wednesday, the board solicited public feedback for its agenda after the Senate finally confirmed four nominees in August. We hope the PCLOB embraces its role and becomes a forceful oversight mechanism by focusing on the government's surveillance regime—like the NSA's warrantless wiretapping—and secret legal analyses that undergird much of the government's domestic spying policies.
The PCLOB can shine a light in the dark corners of the federal government and should focus on uncovering the secret analyses behind much of our post-9/11 surveillance state. One instance is the FBI's secret interpretation of Section 215 of the USA PATRIOT Act, which allows the FBI to force businesses to turn over “any tangible thing” in relation to a terrorism or intelligence investigation. In a letter sent to the Department of Justice (DOJ), several Senators repeatedlywarned about DOJ's use of Section 215 of the PATRIOT Act to support what government attorneys called a “sensitive collection program” that would make Americans "surprised and angry." EFF is suing the government to uncover this secret legal interpretation, and we urge the PCLOB to assist us in the fight by working to uncover this secret legal interpretation. At the three-hour meeting, organizations including NYU's Brennan Center for Justice, the Federation of American Scientists, and the Center for Democracy and Technology also insisted the board review the government's use of Section 215.
In addition, the organizations at the hearing urged the PCLOB to review policies surrounding drones. Drones offer frightening surveillance capabilities that more and more government agencies are beginning to use. We also urge the PCLOB to assess the civil liberties implications of domestic drones, which EFF's Transparency Project has already begun work on by uncovering the law enforcement agencies that fly drones. But more could done. And the PCLOB is in a prime position to review, revise, and even offer drone policy—and government wide policy—that respects privacy and civil liberties.
NSA's warrantless wiretapping program has been going on for 11 years and EFF's lawsuit against it for six. The renewal of the PCLOB presents an opportunity to uncover more information about the NSA's dragnet warrantless wiretapping of Americans citizens and the government's wider use of the Foreign Intelligence Surveillance Act (FISA), a law shamefully expanded after pressure to legalize certain portions of the NSA’s warrantless wiretapping program. Both are intricately connected. In a letter to Sen. Ron Wyden (D-OR), the Director of National Intelligence (DNI) indicated that the Foreign Intelligence Surveillance Court agreed with Wyden that the government had “circumvented the spirit of the law” while spying. The spying is so secret that Congress has exercised little public oversight over it. Beyond the lawsuits already filed about warrantless wiretapping, the letter—in and of itself—should serve as a catalyst for the PCLOB to uncover more information about the violations, the government's use of the Foreign Intelligence Surveillance Act, and relevant FISA Court opinions. If it doesn't, the testimony of, among others, the ACLU and The Constitution Project—both of which asked the board to investigate FISA and warrantless wiretapping—should persuade the board to begin an investigation.
The PCLOB could bring much needed transparency to government surveillance actions, legal analyses, and procedures. Not only can the board report to the public and recommend revisions to current laws and policies, but it can also "continually review" the implementation and creation of policies by issuing proposed corrections and admonitions—all while consulting with the public. A published report from the PCLOB can serve as an early warning system for the public.
Its reemergence is a step in the right direction, but even with the meeting, the office is without a full-time chair because the Senate has failed to confirm President Obama's nomination. Without one, the PCLOB can not hire full-time staff, but must rely on temporary staff. Over the next few months, we hope that the Senate confirms President Obama's nomination so that the board can work full-speed ahead on uncovering many of the abuses, and current policies, of our post-9/11 surveillance state.
Earlier this fall, payment provider Stripe suspended the account of the Nifty Archive Alliance, a nonprofit entity that supports the Nifty Erotic Stories Archive, a free, volunteer-supported website hosting a wide range of erotic fiction for the GLBTO (Gay, Lesbian, Bisexual, Transgender & Others) community. While the content may be NSFW, all of the erotic literature is constitutionally protected speech under the First Amendment.
Stripe initially suspended the non-profit because they believed that some of the content on Nifty.org might violate Stripe’s agreements with Visa and MasterCard. After hearing about the suspension, which affected the entire site, not just the controversial contents, EFF reached out to Stripe and urged the payment processor to reinstate payment processing for the site. After several productive discussions with Stripe, we are pleased to announce that Stripe has reinstated Nifty’s account and will continue to process payments for a website that hosts constitutionally protected speech. This is a victory for online speech and another reminder that third party intermediaries—like payment processors—can serve as the gatekeepers of online speech. Overly restrictive policies can result in removal of speech that the government is prohibited from censoring.
This isn’t the first time we’ve encountered a payment processor occupying the role of Internet censor. In 2011, Visa, MasterCard, and Paypal shut down the accounts of the whistleblower website Wikileaks, creating an unofficial financial blockade against the controversial site even though it had not been charged with any crime. And in February of this year, PayPal threatened to cut off independent e-book publisher Smashwords unless it agreed to stop selling legal fiction that explored issues of rape, incest, and bestiality. EFF, National Coalition Against Censorship, and American Booksellers for Free Expression led a coalition of free speech groups in fighting back and successfully convinced PayPal that constitutionally protected fiction shouldn't be censored by third party payment processors.
Similar to Smashwords, Nifty Archives ran into trouble because it provides an online space for controversial erotic fiction. In addition to fiction themed around gay, lesbian, bisexual, and transgender issues, a portion of Nifty’s site is dedicated to bestiality fiction. Stripe suspended Nifty’s account because it feared that the bestiality fiction would run afoul of the Visa and MasterCard brand protection rules. MasterCard’s rules, for example, ban "sale of a product or service, including an image, which is patently offensive and lacks serious artistic value (such as, by way of example and not limitation, images of nonconsensual sexual behavior, sexual exploitation of a minor, nonconsensual mutilation of a person or body part, and bestiality)."
Visa and MasterCard’s brand protection rules are subject to a wide range of interpretation. Questions about what erotic stories are overly offensive or not sufficiently artistic beg for interpretation, and we are concerned that payment processors might be choosing to shut down sites that host entirely legal fiction out of fear of violating these agreements with the upstream providers.
Literature and art have long provided refuge for exploring a range of human emotions through metaphor, mythology, and fantasy. Some of the most respected works of literature in our culture have dealt with issues of rape, bestiality, and incest—works such as Nabokov’s Lolita, numerous Greek myths, and even the Bible. While US courts once routinely found books obscene, including many now considered great works, modern jurisprudence recognizes that erotic fiction, even that dealing with taboo subjects, can have serious literary and artistic value, and be protected by the First Amendment.
However, while the Constitution may prevent the government from censoring controversial works of erotic fiction, it does not prevent payment processors from shutting off the accounts of legal publishers. And as our literary traditions and fictional experiments move into digital spaces, there are ever-increasing opportunities for third party service providers’ rules to supersede the First Amendment and censor speech.
We’re glad to report that Stripe reinstated Nifty and has adopted a policy that upholds constitutionally protected speech. Like PayPal earlier this year, Stripe was willing to change its policy to ensure that legal fiction was not censored. We hope that other online intermediaries will adopt similar stances when it comes to permitting legal fiction.
Note: EFF has recently started using Stripe as a payment processor for our donations.
With the launch of our new Transparency Project, we’ve made the information we’ve received easier to access and added new tools to help you learn about the government and file your own requests for information.
The new name—Transparency Project—reflects the fact that EFF’s work has expanded far beyond filing and litigating federal Freedom of Information Act requests. While that work still makes up a solid core of what our Transparency Team does, we also seek information from state and local governments, regularly report on transparency issue more broadly, and provide tools to help you find out more about our government and what it’s up to.
The new Transparency Project section of our website helps to promote these goals. Some of the new features include:
New and improved document search capabilities, including the ability to limit your search to specific topics, issues, agencies, document types, and years, and to see statistics on how many documents fall into each of these categories
Thumbnail images of the first page of each document and snippets of text to let you see your search terms in context