At the risk of repeating ourselves, the current patent system is broken. There's considerable evidence to support this claim, too—whether it's innovation-destroying patent trolls or certified "chaos" in legal battles among tech giants. More than 10,000 people have signed onto our Defend Innovation campaign, helpfully providing their thoughts on what works and what doesn't with the patent system, and what kinds of changes would really make things better.
These fixes can only come, however, with thorough evidence and analysis, which is why we have kicked off our Defend Innovation campaign. Another crucial ingredient is scholarship on the issue. Professor Colleen Chien of Santa Clara University School of Law is conducting a short Patent Demand Survey, and she's looking for your help in collecting relevant data. Professor Chien's research is an important step in understanding—and teaching others, including policy makers—the scope of the patent problem. It is crucial that those whose lives are affected by patents participate. We can't say it enough: we highly encourage those who have received patent demands to fill this confidential survey out.
We need entrepreneurs and engineers who have been affected by patents to tell their stories. Too often, startups are afraid (oftentimes for good reason) to publicly discuss the undesirable patent situations they find themselves in for fear of being targeted by trolls. And nearly all settlements with trolls require that alleged infringers sign nondisclosure agreements, meaning the world never finds out about the harm that has occurred.
We've been encouraged recently to see fixes to the system coming from within and without. For examples, private parties have developed tools to hack the system, making it work for engineers and companies who would rather not engage in the patent process. The Defensive Patent License (DPL) and Twitter's Innovator's Patent Agreement (IPA) are two prominent examples.
Two Congressmen also recently introduced the SHIELD Act, which creates a fee-shifting scheme for patent lawsuits: a plaintiff must have a good-faith believe that a defendant is infringing a valid patent, otherwise it must pay for the winning party's fees. Though we support this bill, it is an incremental change to a system that needs more sweeping reform. To that end, we've proposed our own additional suggestions on how to fix the system at https://defendinnovation.org.
It is exciting to see so many good ideas for revamping a broken patent system. Anecdotes serve to inspire, but thorough scholarly analysis is necessary too. If you or your business has been affected by patent demands, tell your story. When we are able to cite such scholarship in our legal briefs, our comments, and our blog posts, we make it that much harder for others to deny just how necessary it is to fix our broken patent system.
In the weeks since our post, a number of organizations have come out in support, petitioning the Ethiopian government to free Nega and drop the charges against him. The International Press Institute has submitted a letter signed by prominent journalists from all over the world, while Freedom Now filed a petition with the UN Working Group on Arbitrary Detention. A group of 32 IFEX member organizations has also sent an appeal for Nega's release.
As Martin Luther King, Jr. once wrote, "Injustice anywhere is a threat to justice everywhere." It is imperative that we speak out against threats to freedom of expression wherever they occur.
More Activists Convicted on Protest-Related Charges in Oman
The dozens of writers, activists, and bloggers who have been arrested on charges connected to their calls for greater freedoms in Oman in May and early June of 2012 have been brought to trial, convicted, and sentenced in recent weeks. The latest—a group of twelve activists—were sentenced on Wednesday in Oman’s capital, Muscat. Eleven were given a year’s prison and a 200 Riyal ($520) fine for participating in a peaceful protest. One was given a year’s prison sentence for insulting the Sultan. All twelve are expected to be released on bail pending appeal.
In June, seven other activists were given prison terms and fines, and more than twenty others were arrested in connection with protests calling for change. EFF will keep a close eye on the fate of these activists. If they wind up behind bars, EFF will join Amnesty International in calling for their immediate and unconditional release.
Nepalese Government Website Compromised, Altered to Serve Malware
The same vulnerability was used in the compromise of the Amnesty International UK website and the Institute for National Security Studies site in Israel in May. The Websense report shows evidence that the attack against the Nepalese government websites may be connected to the attack against Amnesty International UK, and that both attacks send data back to a domain in China.
EFF has reported extensively on state-sponsored malware that targets activists and their supporters. We will continue to issue periodic advisories in order to help vulnerable users avoid infection.
Russian Government Wiretaps Dissident Blogger Alexei Navalny
When Russian anti-corruption blogger Alexei Navalny found a bug hidden inside the wall molding in his office last week, he was not surprised. Russian security services have a long history of extensive surveillance of activists and dissidents, especially those who was outspokenly critical of the Putin regime. Before calling the police, Navalny posted this video of himself and his colleagues taking the surveillance device apart.
Upon inspection, the police reportedly found a microphone as well as a hidden camera attached to a power source and a transmitter. Police could be heard on the video saying that the device was being operated remotely. Navalny has faced possible arrest, trial, and ten years in prison on charges stemming from an alleged embezzlement scheme, but which Navalny and his supporters claim is an attempt to silence him.
The wiretapping of Navalny is part of a broader trend of surveillance and intimidation of the Putin regime’s critics in Russia since his re-election as President. The Kremlin has stepped up the arrest of dissidents, including the punk band Pussy Riot and passed new laws aimed at curbing free speech on the Internet. EFF will continue to keep an eye on developments.
In just a few hours, protestors are set to march to the headquarters of Bay Area Rapid Transit (BART) to mark the anniversary of last year's cell service shutdown. A year ago this week, responding to planned protests throughout the BART system, the transit authority cut off cell phone service in four stations in downtown San Francisco. We were among many to draw the connection between BART and Hosni Mubarak, former president of Egypt, who was in the midst of disabling communication networks to quell protests around the same time:
One thing is clear, whether it’s BART or the cell phone carriers that were responsible for the shut-off, cutting off cell phone service in response to a planned protest is a shameful attack on free speech. BART officials are showing themselves to be of a mind with the former president of Egypt, Hosni Mubarak, who ordered the shutdown of cell phone service in Tahrir Square in response to peaceful, democratic protests earlier this year.
Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.
It’s important to note that shutdowns of wireless service negatively affect both the public’s First Amendment rights and public safety. ... Safety and free speech are not mutually exclusive; in contrast, they are intertwined, and by shutting down cell phone service in August, BART threatened both.
The final cell service interruption policy (pdf), implemented in December may be an improvement, but it is still problematic. To its credit, this policy would likely have prevented the August shutdowns. It limits the circumstances under which cell service may be interrupted to situations where there is "strong evidence of imminent unlawful activity" and "the interruption will substantially reduce the likelihood of such unlawful activity." It also requires that the interruption is "essential" for the protection of safety, and that it is "narrowly tailored."
That said, BART management could abuse some vague language to curtail legitimate speech without real justification. The document provides "illustrative examples," but acknowledges that other circumstances might qualify. And while BART's new general manager Grace Crunican has made clear that she would not authorize a shutdown in a situation like last August's protest, that promise does little to guarantee, for example, that her successor won't.
For those protesting today, our Cell Phone Guide for Protestors may prove useful. Even a year later, BART's actions still serve as a potent reminder of communication networks and the danger to free speech their cutoff can pose.
Responding to Outreach by EFF and the ACLU of Northern California, Facebook Corrects Error and Affirms its Goal of Providing a Politically-Neutral Platform for Election Issues, Including Marijuana Reform
Last week, news outlets reported that Facebook was rejecting ads by advocacy groups working on marijuana policy reform. The ads in question showed marijuana leaves, sometimes with photos of Barack Obama and Mitt Romney, and urged viewers to join campaigns to make marijuana reform an election issue. Several versions of similar Facebook ads were submitted by Students for Sensible Drug Policy and Just Say Now, but both groups were initially rejected. After EFF and the ACLU of Northern California reached out to Facebook about the issue, Facebook did the right thing and restored the ads.
Facebook has publicly established guidelines that state that a Facebook advertisement "may not promote tobacco or tobacco-related products, including cigarettes, cigars, chewing tobacco, tobacco pipes, hookahs, hookah lounges, rolling papers, vaporized tobacco delivery devices and electronic cigarettes." But the language from the banned ads said simply things like: "Registered to vote? Make your voice heard on historic marijuana ballot measures this November" Another read "Marijuana Reform in 2012 | Obama and Romney are mum on marijuana reform. Learn how to make them start talking." Rather than advocate for marijuana usage, the banned ads urged users to get involved with fighting for reform.
EFF and the ACLU of Northern California reached out to Facebook to draw more internal attention to the fact that the company was censoring speech that was clearly political in nature. Facebook confirmed that the ads were erroneously rejected, that they do not violate Facebook’s policies, and that they would be quickly reinstated.1 EFF is pleased by Facebook’s prompt action to correct this error and we applaud its ongoing commitment to providing a politically neutral platform for political discussion in the approaching election season. However, given this error, and the need for our intervention, we also urge Facebook to carefully audit its ad review program to ensure that similar legitimate speech is not censored from its network.
For instance, those who have advertisements rejected by Facebook can submit an appeal here. This will result in a review by additional members of Facebook, and give Facebook an opportunity to correct any human errors in its policy enforcement. Unfortunately, this form is difficult to find in the help section of the Facebook website. Individuals who have ads rejected are informed via email and provided a link to Facebook’s Prohibited Content – neither the email nor the webpage provide any information about the appeals process. To ensure that individuals whose ad campaigns are erroneously removed can quickly appeal the decision, we urge Facebook to clearly link to the appeal page on its Prohibited Content page. In addition, they should clearly describe the appeals process in the emails rejecting the advertisements, so that similar issues can get resolved more quickly.
Facebook has over 900 million users, including elected officials and even EFF using the platform for political advocacy. It has a legal right to decide whether to permit or censor speech on its own domain, but Facebook also has an opportunity to create an online space where political discussions can flourish. As more of our speech—political and otherwise—moves into online forums like reddit, Facebook, and Twitter, these companies will be faced with the responsibility of arbitrating what type of speech will and won’t be permitted. Valuable political speech such as these policy advertisements, which unequivocally benefit the public discourse, could be subject to the vicissitudes of arbitrary company policies. While we’re glad to see free speech prevailing in this case, we hope that Facebook and other Internet companies continue to rise to the challenge of providing neutral, speech-protecting platforms as political and social engagement moves from town squares to comment threads.
While EFF has continually criticized the the Obama administration for their lack of transparency, it's becoming clear that as much—if not more—blame rests with Congress. As we explained recently, new "anti-leaks" legislation proposed in the Senate would restrict press freedoms, markedly increase government secrecy, and do significant damage to the public’s right-to-know. But the Senate has passed other laws increasing secrecy in recent years, and has blocked other proposals that would increase openness in government, as classification expert Steven Aftergood detailed in this excellent blog post.
Congress has so far refused to increase disclosure around FISA and warrantless wiretapping, despite the government’s admission that they have, “on at least one occasion,” violated the law. Congress has also prohibited bulk declassification that has led to the National Declassification Center falling far short of its declassification goals, and removed disclosure provisions in the Intelligence Authorization Act.
NCIS Pressures Wired'sDanger Room to Give Up Sources, Censor
In what has to be the most absurd leak investigation ever, last week, Wired'sDanger Room blog revealed they were questioned several times by the Naval Criminal Investigations Service (NCIS) about a document they published on their website five years ago—yes, five years. The document in question was a 2006 request by Marines in Iraq for an advanced laser system and is marked ”For Official Use Only." The document, which was never even classified, described an “energy weapon that doesn’t exist,” and as Danger Room said, “reads almost like a spoof of the laser system out of Real Genius.”
Despite this, for the past six months NCIS has been asking Wired to reveal the source of the document, and even asked them to take down the post. Danger Room, commendably, through its attorney, "declined to provide the information, or to answer any questions related to the reporting of the story." The story is a good example of just how ridiculous leak hysteria has infected the government—even if the material is a five year-old unclassified document.
Senate Finally Acts on Privacy and Civil Liberties Board
The Senate confirmed four of the five nominees to the Privacy and Civil Liberties Oversight Board (PCLOB), a panel created in 2004 to serve as an advisory board to the executive branch. Jim Dempsey, Elisabeth Collins Cook, Rachel Brand, and Patricia Wald were all confirmed as part-time members. The board has not had any members for the past four years and still lacks a chair—which prevents them from exercising their full power. President Obama has nominated David Medine for the latter position, but the Senate did not act on the nomination.
In 2009, we called on President Obama to prioritize the nomination of board members so that the PCLOB could contribute to ongoing debates over government surveillance, cybersecurity, and more. After four years of being dormant, the board will finally come back into operation, albeit not at full strength.
A Brief, Shining Moment For Government Transparency
And, last but certainly not least, we would be remiss if we didn’t highlight a bright spot in government transparency. Last year, EFF submitted Freedom of Information Act requests to DHS Federal Law Enforcement Training Center (FLETC), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) seeking information about the agencies’ use of data extraction devices to search cell phones and laptops. To its credit, FLETC produced nearly two thousand pages of records in response to the request in a little under a year (somewhat beyond the 20-day FOIA requirement, but better late than never). In contrast, ICE found no responsive records; and, while CBP initially located 96 responsive pages, the agency withheld every page in full. EFF appealed that decision to the FOIA appeals branch within CBP.
The response to our appeal was a well-written, thoughtful, eight-page letter outlining the specific exemption claims (some pages were released with redactions) and the reasons supporting those redactions. At the beginning of CBP’s analysis, on page two of the appeal, CBP wrote:
In his first day in office, President Barack Obama issued a memorandum that made clear that his administration would dedicate itself to the principles that motivated Congress to enact the FOIA. The President explained that “accountability requires transparency” and demanded that federal agencies “adopt a presumption in favor of disclosure in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.”
Hear, hear! It’s fantastic to see President Obama’s transparency mandate embraced and put into action by a federal agency. Unfortunately, as a recent Washington Post analysis of FOIA requests showed, this type of response is far too rare. If only more FOIA analyses started from this assumption, there’s no question FOIA would be a better tool for holding our government accountable.
So, while we normally use this space to highlight the ridiculousness of government secrecy, it’s also important to acknowledge those government officials that take their obligation to transparency seriously. CBP FOIA Appeals Branch and DHS FLETC – thank you (at least this time) for helping contribute to transparent and accountable government.
1. And, in fact, EFF had previously litigated with CBP—and lost—over the five pages that were withheld in full.
As we noted last June, the World Intellectual Property Organization (WIPO) Broadcast Treaty—which is a restrictive copyright treaty that aims to create and extend rights to signals of broadcasters and webcasters, and possibly creating serious problems for freedom of expression —is back. Although it has been revamped, it still incorporates the two most controversial proposals from the original treaty text. As concluded by an analysis comissioned by UNESCO back in 2006:
"[T]he Draft Broadcasting Treaty would give broadcasters and cablecasters (and possibly webcasters) broad rights which in parallel with technological measures and ambiguity as to protected subject-matter could prevent or restrict the flow of information with respect to materials which may not be protected by copyright, such as news of the day, or which are in the public domain, because their term of protection has expired or in relation to materials created by third parties who do not wish to prevent dissemination of the latter. Thus, the Draft Treaty may undermine the balance between the economic interests of broadcasting and cablecasting organizations and freedom of expression values." 1
The last WIPO meeting in July solidified the course of the negotiations, proceeding on the basis of a single draft text released on July 24th called the “chair’s non-paper” [pdf]. The treaty will apply to “traditional broadcasters”, but what that actually means is still a source of disagreement. Japan, for instance, wants "traditional broadcasters" to include TV and radio but not webcasts. Japan says these proposals are supported by Brazil and India. However, the US position reaches back to 2005, and pushes for a “technologically neutral” approach, which would expand the definition of traditional broadcasting to include cablecasters and webcasters.
Here’s what the US delegate said during the WIPO discussions reafirming US expansive agenda for the Treaty:
“In our view, a treaty that does not provide protection against signal theft using new forms of technology would not be worth concluding in the 21 the century. Any treaty should be technologically neutral in the sense the piracy is accomplished. This is a different question from which entities are covered by the treaty. The latter is an issue of subject matter protection while the former is an issue of scope of rights. Those delegates that are not yet ready to go beyond protection for traditional broadcasters may nevertheless find it important to protect their traditional broadcasters against unscrupulous actors who stream their signal over the Internet.”2
To be clear, this approach would basically cover any kind of broadcasting, from cable, satellite, and web. It means that a vast new set of rights, unsupported by empirical study, would simply be created out of thin air to regulate broadcast content. We live in a world where we rely on empirical studies of cause and effect to make pragmatic, sound policy: such as to estimate environmental impacts on buildings, to project business returns on products, and even to design ad campaigns. It’s deeply irresponsible to not do the same with digital policymaking. There needs to be a non-partisan panel to review the overall “environmental” impact of a new explosion of broadcasting rights on the digital commons and the web.
All countries, except India, showed support for the chair’s non-paper as the basis for work moving forward. The remaining countries believe that the coming rounds of negotiations will clean up the text to ensure it is not applicable to webcasters. India, on the other hand, saw such profound problems with the text that it said it could not agree to work with it even as a foundation for future negotiations.
During the last hours of the meeting, the WIPO Committee pursued discussions that led to the adoption of a single text titled “Working document for a treaty on the protection of broadcasting organizations” (which has not been published as of today)3. This working document will constitute the basis of further discussions to be undertaken in November in Geneva, which WIPO hopes will conclude with a consensus document to be signed as a treaty early 2013. If WIPO convenes this conference it is because members have reached a decision and a new treaty may be born.
This procedural detail is a really important one — despite there being no international consensus, WIPO is pushing for a treaty to be signed quickly. This is actually a cruel trend in other WIPO negotiations. In the past, it has seemed like the WIPO bureaucracy has pushed for a conclusion of treaties just because they have been in negotiation for a long period of time. For example, another long-running negotiation led to the adoption of a treaty about performance rights that was opposed by many.
We urge country Members to say no to the WIPO Broadcasting treaty—as they have said in the past. We continue to believe the preferable model for addressing these issues is the narrower signal-based approach in the Brussels Satellite Convention.
Giving broadcasters an unprecedented set of legal privileges is a sure-fire way to damage speech and innovation on the global Internet. Granting broadcasters, cablecasters and webcasters exclusive rights to authorize retransmissions of broadcasts over the Internet will allow them to block competition and innovation by allowing them to control the types of devices that can receive transmissions, and it will create new liability risks for Internet intermediaries that retransmit information on the Internet. If "signal piracy" is the concern, then a narrow, signal-focused approach is what is needed, not a global replication of the existing copyright regime.
EFF has opposed the draft WIPO Broadcasting Treaty since 2004 because it grants broadcasters and cablecasters intellectual property rights in their signals, in addition to the copyrights held by the creators of the works and that apply independent of copyright. It also requires countries to create overly broad laws prohibiting circumvention of technological protection measures. Taken together, this will allow broadcasters to restrict access to public domain works, add complexity to copyright clearance regimes for creators of podcasts and documentary films, and interfere with consumers’ ability to make in-home recordings permitted under national copyright law. It will also harm competition and innovation by allowing broadcasters and cablecasters to control the types of devices that can receive transmissions, and create new liability risks for intermediaries that retransmit information on the Internet.
In 2005-2006 we reached out to Intel, Google, Verizon, AT& T and US Telecom about our concerns with the proposed IP rights based treaty, and helped build a public interest – tech sector coalition with over 40 members that resulted in the US delegation to WIPO withdrawing its support for the current IP rights-based treaty. In previous years, EFF, with a hand from Cory Doctorow, organized and delivered two petitions signed by over 2000 podcasters from around the world.
In 2007, the treaty stalled at WIPO as the result of mounting concern about the impact of the treaty. However, it is now moving forward again. A new with “elements of a proposed treaty” and were tabled at the June 2011 WIPO Standing Committee on Copyright and Related Rights meeting. It called for the scope of the treaty to be expanded, to cover webcasting, which raises a number of concerns for Internet policy.
The renewed interest in the Broadcasting Treaty has been spurred both by complaints from incumbent broadcasting organizations, and a campaign from the WIPO Secretariat to conclude the Treaty after more than 12 years of negotiations with no consensus. The Secretariat commissioned three studies, organized several regional seminars, and in April held an informal consultation, which led to the creation of a new document with "elements" for a treaty. Meanwhile a new treaty proposal from South Africa was submitted, and sports broadcasters have been lobbying hard for a treaty in Geneva.
1. The Draft WIPO Broadcasting Treaty and its impact on Freedom of Expression. Commissioned by UNESCO and prepared by Patricia Akester. e-Copyright Bulletin. April – June 2006. Available at http://unesdoc.unesco.org/images/0014/001464/146498e.pdf
2. Quoted from the live transcript at the following URL which is no longer available: http://www.streamtext.net/player?Event=WIPO
Earlier this summer, we applauded Google for releasing detailed stats about content removal requests from copyright holders. Now that we know how they are going to use that data, we are less enthusiastic. Today, Google announced that it would use copyright takedown notices made under the DMCA1 as what it calls a "signal” on search results. Specifically, those "signals" will demote certain websites in search results.
We wish we had some more details to illustrate just what that means, but unfortunately the process is pretty opaque. What we know: sites that have a “high number of removal notices” of takedown notices that result in actual takedowns will show up lower in some search results, though they will not be removed. What we don’t know: what is a “high number”? How does Google plan to make these determinations? Oh, and one other thing we do know, one that is particularly troubling: there will be no process or recourse for sites who have been demoted.
In particular, we worry about the false positives problem. For example, we’ve seen the government wrongly target sites that actually have a right to post the allegedly infringing material in question or otherwise legally display content. In short, without details on how Google’s process works, we have no reason to believe they won’t make similar, over-inclusive mistakes, dropping lawful, relevant speech lower in its search results without recourse for the speakers.
Takedown requests are nothing more than accusations of copyright infringement. No court or other umpire confirms that the accusations are valid (although copyright owners can be liable for bad-faith accusations). Demoting search results – effectively telling the searcher that these are not the websites you’re looking for – based on accusations alone gives copyright owners one more bit of control over what we see, hear, and read.
Of course, Google is not seizing domain names, as the government does. And it’s not removing sites from its search results altogether at copyright owners’ request, as SOPA would have required. To its credit, Google says that it will respect counter-notices, and won’t demote results based on takedowns that are rightfully disputed. But this is little comfort. Google’s opaque policies not only threaten lawful sites, but they undermine our confidence in its search results.
1. The Digital Millennium Copyright Act shields websites against most copyright suits based on material posted by their users, provided that the site takes certain actions, including taking down content when a copyright holder sends a valid request.