A new international treaty will add another layer of legal restrictions on audiovisual performances by giving the performers—actors, musicians, dancers and others—a new copyright-like right that will exist alongside copyright.
WIPO has praised the Beijing Treaty for “safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video” and “providing a clearer international legal framework for their protection.” It also claimed that:
[The treaty] will strengthen the economic rights of film actors and other performers and could provide extra income from their work. It will potentially enable performers to share proceeds with producers for revenues generated internationally by audiovisual productions. It also will grant performers moral rights to prevent lack of attribution or distortion of their performances.
David Kappos, head of the USPTO also said in a blog post:
It [the treaty] will not disrupt American motion picture companies’ global distribution networks. It represents a win-win for labor and industry, allowing them to work even more closely in fighting global piracy. Ratification by the United States and key trading partners will also give American stakeholders another mechanism to promote protection of the intellectual property in their films.
Under this treaty, the agreed term of protection for performers (Art. 14) will be “at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed.” Article 13 provides limitations and exceptions to copyright, essentially leaving it to national law. And Article 15 on technological protection measures contains a complicated footnote clarifying that limitations and exceptions must be respected.
One disturbing aspect of this treaty is that the advocates of ever-stronger copyright law in the U.S., like the entertainment industry, can use it to push for new U.S. laws. Today, there is no such thing as "performers' rights" under U.S. law. Performers may be able to prevent unauthorized fixation of their performances and have whatever rights they collectively negotiate with producers. But the works are only encumbered by copyright, which is held by "authors.” This treaty could be used by the usual suspects (including the MPAA, which cheered its passage in Beijing) to insist that Congress create a whole new system of rights for performers—separate from copyright, yet equally draconian. Indeed, while the WIPO Performances and Phonograms Treaty granted a similar right to music performers, those rights were implemented in a fairly balanced manner, whereas the Beijing Treaty reopens the door for a fresh lobbying opportunity with unpredictable results.
But why would the MPAA—which represents the major Hollywood studios—want a new system of rights for the actors with whom the studios often battle? The answer can be found in the fine print. The Beijing Audiovisual Treaty allows the "performers' rights" to be transferred to the producers. That transfer can be included in the standard terms of an actor's contract and could even be automatic. So, the "performer's rights" could ultimately go to the same companies that hold the copyright. It's hard to see whom that would benefit, other than lawyers.
Other parts of the treaty could also be used to push for some unfortunate changes to U.S. law as part of the steady march towards ever-stronger and intricated copyright system. The treaty calls for a "Right of Making Available of Fixed Performances," which means that individuals could get sued for merely posting a file on the Internet, even if no one downloads it. A pointed by Hannibal Travis:
WIPO Audiovisual Treaty threaten the Internet by potentially outlawing remix culture and fair use of existing content. Many YouTube videos are mashups of news, entertainment, or public affairs videos with additional commentary or montage. There are already precedents for using the removal of “rights management information” from a remix in an attempt to censor artists and other creators of fair use works.
The U.S. Copyright Act does not contain a "making available" right, and only a few widely criticized court decisions suggest that such a right exists. Other U.S. cases that have considered the issue, including in the case against alleged file sharer Jammie Thomas-Rasset, has rejected this theory. Copyright owners, particularly the major record labels, support this right because it would lower their burden of proof in Internet copyright cases. Now, the copyright lobby may return to Capitol Hill with the Beijing Treaty in hand, insisting that Congress create a new "making available" right to comply with the treaty. And we raise this concern based on Article 5 and 16 of the Beijing Treaty, which can undermine fair use.
Article 16 of the WIPO Audiovisual Treaty requires parties to provide civil remedies against those who negligently facilitate the distribution, importation for distribution, communication or making available to the public, “performances or copies of performances fixed in audiovisual fixations knowing that electronic rights management information has been removed or altered without authority.” This would appear to prohibit, for example, the use of clips of news, films, or television shows with the copyright notices, credits, or contractual use terms intentionally omitted, even when the clips are used in transformative works such as documentary films, news reports, parodies, lip-synching videos, etc. Existing U.S. law has a copyright management information provision (17 U.S.C. s. 1202(a)), but it requires intentional removal or alteration of the information for purposes of infringement, not mere negligence.
Specifically, the USPTO said the implementation of the Beijing Audiovisual Treaty “may require some technical amendments of the Copyright Act, in particular where Title 17 refers to existing international copyright obligations" (“points of attachment” for parties to this treaty under U.S. law).
We've seen this before. The anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) started with a WIPO treaty and were subsequently pushed through Congress based on rhetoric of international obligation. It is a trick that effectively allows international bodies to create domestic intellectual property law behind closed doors and bypass the democratic law making process.
With respect to anti-circumvention provisions, in particular, Article 15 of the Beijing Treaty could be used to establish sanctions for additional Digital Rights Management (DRM) technologies to protect the new “performers’ rights” for works that would not otherwise be subject to DRMs. As was the case with the DMCA, this could prevent important fair use applications of the material. The treaty could also limit the very scope of fair use and other copyright exceptions. While Article 13 of the Beijing Treaty allows signatories to extend their national “limitations or exceptions” in copyright to “performer’s rights,” in practice this issue too can be subject to heavy lobbying by the entertainment industry.
The Beijing Treaty could also create pressure for a "rental right" for audiovisual performances, raising the cost of video rentals or limiting them to favored companies. It could further expand "moral rights" for performers, a form of copyright that U.S. law mostly rejects.
Given the many different ways this treaty could be used to expand the copyright regime to restrict creative or otherwise legitimate uses of content, it is important to push back against the copyright lobby in the implementation of this treaty. Let’s be vigilant in making sure that the Beijing Treaty is not used to expand domestic copyright law or to create a new copyright-like legal regime.
The Russian Duma overwhelmingly approved the controversial Internet regulation Bill № 89417-6. 441. A total of 441 out of 450 deputies representing all four party factions within the Duma, voted to support the bill. The regulations set forth within the bill, including the creation of a national blacklist and legal partnership with a content-monitoring bureau, are expected to go into effect in January after President Putin signs the bill into law.
Prime Minister Medvedev promoted the ruling at a meeting with United Russia party leadership in Moscow, and stated that the Internet “should be regulated by a set of rules, which mankind has yet to work out, and it's a very difficult process because we cannot regulate everything, nor can we leave [the Internet] outside the legal realm.” These remarks are very much at odds with Medvedev’s speech 2011 speech at the World Economic Forum in Davos, where he said that “Russia will not support initiatives that put in doubt freedom in the Internet, freedom which is based on the requirements of morality and law.” Last week’s United Russia meeting, Medvedev also spoke of “basic rights and freedoms” such as the “right to be protected against harmful content.”
The blacklist bill has been criticized for the speed with which it was rushed through the Duma; less than a week passed between the initial reading of the amendments on July 6 and its passage after the third reading on July 11. In the final version of the bill, child pornography, suicide how-to instructions, and drug propaganda could all be blocked if the offending content is not removed within 24 hours of an official notice to site owners.
In the final reading, the Duma removed the portion of the bill that criminalized “extremist” online content. This may have been a response to major websites on the RuNet—including Russian-language Wikipedia and LiveJournal—going dark to protest the bill. However, the Duma gave preliminary approval last week to an anti-libel and slander bill that would designate many rights and campaign NGOs as “foreign agents,” and it also recently passed a law that increased the fines for public protesters. EFF is deeply concerned about this alarming trend towards legislating Internet censorship in Russia and will continue to keep an eye on the situation as it develops.
As Congress and the President rush to re-authorize the dangerous FISA Amendments Act (FAA)—the law shamefully passed after pressure to legalize certain portions of the NSA’s warrantless wiretapping program—EFF has been sounding the alarm that Americans’ communications are still being unconstitutionally collected by the government without a warrant. On Friday, the Office of the Director of National Intelligence, (DNI) begrudgingly agreed, acknowledging that, “on at least one occasion” the secret FISA court “held that some collection…used by the government was unreasonable under the Fourth Amendment.”
In a letter to Sen. Ron Wyden (D-OR), the DNI declassified three statements at the request of the Senator, one of which indicated that the FISA Court agreed with Wyden that the government had “circumvented the spirit of the law.” Wired called it a “federal sidestep of a major section of the Foreign Intelligence Surveillance Act,” and the Wall Street Journal confirmed it “represented the first time the government has acknowledged U.S. spy activities violated the constitution since the passage of” the FAA in 2008.
This is vital information, as Congress is in the midst of debate over extending Section 702 of the FAA before it expires at the end of the year. Section 702 severely weakened privacy protections for Americans communicating overseas, and may have swallowed protections against surveillance of our domestic communications as well.
But it’s also important to take a step back here to understand how we know this and why that process is deeply troubling. Apparently, the secret FISA court—at some point—ruled that the government was violating the Constitution. When? We have no idea. How many Americans were affected? We don’t know that either. As Cato Institute’s Julian Sanchez pointed out, these requests can be incredibly broad—a single incident could potentially impact millions of Americans. Were there any remedies or was the NSA just given a slap on the wrist? Again, we don’t know.
And remember, the declassified statement says “on at least one occasion” so there very likely could be more. Previously, the NSA told Sen. Wyden it was not possible to count the number of Americans affected by FAA surveillance. Rather unbelievably, the NSA also stated that even a general estimate of how many people the NSA had spied on would somehow violate the privacy of those same Americans.
Wyden had been warning the American people for months in vague terms that the government was overstepping its bounds in its interpretation of 702. Now, the only reason we’ve learned the barest minimum about of the sidestepping of a public law and the Bill of Rights is because the very same government agency that was responsible for the wrongdoing allowed it.
Congress can and should force the administration to answer all of these questions in public, so that we can allow the democratic process to determine whether 702 should be extended.
Of course, many major news outlets had been reporting since just after the FAA passed (here, here, and here for starters) that Americans’ communications were still being collected by the NSA without a warrant. Yet Congress has steadfastly refused to fix the problem. Both House and Senate committees recently voted down amendments that would have added privacy safeguards and transparency requirements to the law, claiming no such evidence existed.
Sen. Wyden, on the other hand, has been alleging that “section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens.” But Wyden’s amendment that would have required a warrant to search the communications of a specific American was voted down 13-2 after Intelligence committee chairman Dianne Feinstein insisted there was no such loophole. Sen. Feinstein’s assurances seem to conflict with the DNI’s statement.
Similarly, when Rep. John Conyers implored his House colleagues to vote for an amendment requiring the government give a general estimate how many times Americans’ communications had been collected without a warrant, Rep. Dan Lungren (R-California) shot back: “What evidence is there that it is being used to spy on Americans?” The amendment failed 11-20.
Congress may be able to ignore reports in the media that the NSA is still collecting Americans’ emails, but it should not ignore the admission from the DNI itself. Congress must now drastically overhaul this law to prevent further abuses of the Constitution or vote down entirely.
Saudi Arabia: Expanding anti-blasphemy laws to social media content
Saudi Arabia is considering updated regulations that criminalize insulting Islam. Saudi news outlet Al-Watan reported that the appointed Shura Council will study the potential for new laws to “combat the criticism of the basic tenets of Islamic sharia” over the next two months, given recent “violations over social networks on the Internet” of existing anti-blasphemy laws.
The announcement of the Shura study comes four months after Saudi journalist Hamza Kashgari was detained for certain tweets about the Prophet Mohammed. Blasphemy can be punishable by death under current Saudi law. Kashgari recanted his statements, deleted his account, and fled the country to avoid the death penalty, but he was extradited from Malaysia and currently awaits trial.
Twitter was blocked in Saudi Arabia until 2008, and use has skyrocketed since then. In June of this year alone, the number of users grew by 3000 percent. While Twitter remains important for facilitating online dialogue about political reforms in the country and the broader region, tension arises when politics become especially intertwined with religion. Many new Saudi Twitter-users are religious clerics; Mohammad al Arefe, a conservative Islamic scholar, has 1.8 million followers.
Saudi news analyst Jamal Khashoggi said that if new regulatory proposals come out of the study, the public and the media should be able to give input. He told Al-Watan, "I don't want anything to affect my freedom and we don't want Saudi Arabia to be another Iran."
China: Intermediary video-hosting websites forced to self-censor videos
On July 9, the Chinese State Administration of Radio, Film, and Television (SARFT) has published new censorship guidelines that require video-hosting websites to pre-screen videos for vulgar, violent, or pornographic content. SARFT handed down the new rules as part of published answers to reporters’ frequently asked questions about video content. The stated goal of the policy is to protect Chinese youth and promote higher quality videos over those with “poor style.”
While content regulation is nothing new in China, the intermediary liability for user-uploaded content creates a new challenge for websites. The SARFT article does not describe how the administration will enforce site owners’ liability for outside user-generated content. Many larger Western video-hosting websites, such as Youtube, are already blocked in China, and larger sites already hire pre-screeners who examine uploaded content. The liability rule will mainly affect smaller Chinese video hosts that have fewer resources to devote to pre-screening uploaded videos.
Sweden: Teliosonera agrees to independent review of its human rights risk profile
The Danish Institute for Human Rights (DIHR) has engaged with Swedish telecom giant Teliasonera in order to “support and review its human rights impact assessment.” The forthcoming report will review freedom of expression and privacy issues within Teliasonera’s operations, and will also assess its “consequential mitigation plan” for any negative impacts.
Teliasonera’s image with respect to human rights issues requires a serious makeover after the release of the exposé documentary ”Black Boxes” by Swedish news show Uppdrag Granskning. Teliasonera affiliates in post-Soviet countries such as Azerbaijan, Georgia, and Uzbekistan would provide local and national law enforcement agencies with unfettered access to users’ private calling data, text messages, and location information—even without a court order. At the time, Teliasonera maintained that their policy was to comply with law enforcement requests in all instances. Unfortunately, authoritarian regimes in politically tumultuous countries do not always build the laws themselves in such a way that considers due process for citizens.
Eija Pitkänen, Head of Corporate Responsibility at Teliasonera , stated in a press release that the company was pleased to work with DIHR, and that it would “gain from their respected human rights expertise and at the same time get valuable third party input.” It remains to be seen how DIHR’s human rights appraisal process will prevent law enforcement agencies from requesting unlimited user data from telecom companies, unless Teliasonera is willing to shift its business to markets in countries with stronger legal privacy protections.
United Arab Emirates: Online activist deported to Thailand without legal charges
Emirati blogger Ahmed Abdul Khaleq has been stripped of his residency and deported to Thailand after having been detained since May. Khaleq was one of five online activists to be detained and arrested for “threatening state security” in April of last year. The activists were freed by a presidential order at the end of 2011, but it appears that the charges against them had not been officially dropped. Khaleq has not been charged with any new crimes for this most recent detention and deportation.
The Abu Dhabi public prosecutor’s office is reportedly investigating a group suspected of plotting "to commit crimes against state security.” Unlike other countries in the region, the UAE has seen more online calls for political reform than street protests. Still, law enforcement authorities have sharply increased web monitoring of groups urging for democratizing measures. In Khaleq’s words, activists have been detained and deported because they “talked about the rights of the stateless people in the UAE.”
This discussion on exceptions and limitations began with a proposal from the Chilean Ministry of Education, and was eventually incorporated into SCCR’s main agenda but was split into three access areas: education, the visually impaired, and libraries and archives. Chile asked WIPO to include the subject of exceptions and limitations to copyright and related rights for the purposes of education, libraries and archives, and disabled persons on the agenda of the Committee and "to strengthen international understanding of the need to have adequate limitations, learning from existing models and moving towards agreement on exceptions and limitations for public interest purposes, which, like minimum standards, were to be envisaged in all legislation for the benefit of the international community".
Most of the Member States agree to first adopt a specific treaty for the blind, in order for it to become a precedent for dealing with the other two themes, education and libraries and archives. Countries such as Egypt, Brazil, Mexico, the EU, and the United States are in favor of moving forward with the treaty of the blind independent from discussions over other types of exceptions and limitations. A representative from United States has even gone as far to refer to a possible treaty on education as a “monster” and defended its current domestic copyright policies during its comments in an attempt to show that such a treaty would not be necessary:
"Like the EU we would like to emphasize that our educational system in the United States is supported by a vibrant commercial market for education and research materials as well as a set of exceptions and limitations in our copyright law including the doctrine of fair use and specific provisions for teachers and students. Together the commercial market through licensing and voluntary agreements and the exception limitations and exceptions in our copyright law provide the critical access to information, research, and creative expression needed to enable full participation in our information society."1
It is great that the U.S. delegate thinks that and makes such an affirmation at WIPO, however, the claim that the U.S. copyright fair use system provides “full participation” is actually not true. For instance, U.S. laws upholding digital locks (AKA digital rights management [DRM]) have always prevented educators from lawfully accessing content. Even under U.S. law, where educational purposes can in certain circumstances count as fair use, the tools to break digital locks themselves are banned from distribution.
Moreover, we have seen how educational institutions in the U.S., out of fear, would enact restrictive policies on content access, in order to avoid the threat of a copyright lawsuit. A state university was sued by an academic publisher for failing to pay blanket license fees—the legal requirement of which is itself dubious—and faced 75 counts of infringement. In order to protect themselves from further liability, they preemptively enacted new content restrictions, even though the judge ultimately held that only 5 of those cases were actually infringing on copyright. Undoubtedly, this case is one of the many countless instances where copyright has proven to be a chilling effect on access to information and learning. For other nations involved in the WIPO negotiations that do not even have positive case laws or any fair use policies, the impact on educational access to digital content could be much more dire. Thus EFF, during its participation at the SCCR meeting last week in Geneva, has urged state Members to move forward with a treaty on exceptions and limitations that are appropriate to the needs of teachers, students, and self-learners in the digital age. For that, we have put together a joint statement with more than 18 organizations from around the world.
Joint Statement on Digital Access to Content
EFF, Knowledge Ecology International, Public Knowledge, and along with other civil society groups, librarians and universities around the world, are now fighting for digital access rights for education that will address the technological realities of the current and coming generations.
"(...) Education should be accessible for all without barriers of space, time, or cost. Digital technologies, from the portable computer to mobile phones to tablets, are being introduced as crucial educational tools in countries ranging from South Korea to Nigeria, from Brazil to the USA. Educational materials and, therefore, its market, is increasingly becoming digital and policymakers must consider this trend when drafting copyright exceptions and limitations in a way that is appropriate for future generations and the digital age.
The increasing adoption of Information and Communication Technologies (ICTs) in the classroom and in libraries and archives has proven that teachers, learners, researchers, librarians and archivists need rights to access, use, remix, text-mine, exchange, and collaborate on educational materials. Similar rights must be ensured beyond the classroom and library or archive, taking into account the growing importance of e-learning, online communication, and the increasing practice of exchanging educational and other information content across geographical and institutional borders.
The international copyright system has recognized the need for exceptions and limitations from its earliest days. Without these, the copyright system would not be able to achieve its fundamental purpose of encouraging creation and innovation for the benefit of all humankind. (...)"
From the earliest days of the Berne Convention, the international copyright system has recognized exceptions and limitations to copyright. All copyright systems across the world, to varying degrees, are focused on promoting the creation and dissemination of knowledge. Exceptions and limitations are an important part of an efficiently functioning copyright system. They allow creators to access and build upon the knowledge generated by others. Without exceptions and limitations, the copyright system would not be able to achieve its fundamental purpose of spurring creation and innovation for the benefit of all humankind. Exceptions and limitations also serve a second critical function: they allow countries to create tailored access regimes, to meet national needs and public priorities, such as exceptions for distance education to foster learning, capacity building, and development.
A new multilateral means of creating mandatory minimum exceptions and limitations to international copyright law is required to foster education, libraries and archives and facilitate uses by disabled persons, and to re-balance the international copyright regime to serve the needs of all the world’s citizens. ~ Additional resources:
For more than a year now, EFF has encouraged mainstream press publications like the New York Times to aggressively defend WikiLeaks’ First Amendment right to publish classified information in the public interest and denounce the ongoing grand jury investigating WikiLeaks as a threat to press freedom.
Well, we are now seeing why that is so important: at a House Judiciary subcommittee hearing on July 11th, some members of Congress made it clear they also want New York Times journalists charged under the Espionage Act for their recent stories on President Obama’s ‘Kill List’ and secret US cyberattacks against Iran. During the hearing, House Republicans “pressed legal experts Wednesday on whether it was possible to prosecute reporters for publishing classified information,” according to the Los Angeles Times.
In addition, the Washingtonian’s Shane Harris reported a month ago that a “senior” Justice Department official “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”
Leaks big and small have been happening for decades—even centuries—and the most recent are comparable to several others. No journalist has ever been prosecuted under the Espionage Act and it has generally been accepted, even by Congress's own research arm, that the publication of government secrets by the press is protected speech under the First Amendment. Yet the government is actively investigating WikiLeaks and now threatening others for just that.
The mainstream media may see little in common with Assange’s digital publication methods or his general demeanor, but what he is accused of is virtually indistinguishable from what other reporters and newspapers do every day: poke, prod, and cajole sources within the government to give up classified information that newspapers then publish to inform the public of the government’s activities.
It’s clear the WikiLeaks and major newspapers can’t be distinguished in their critics’ own statements. House committee witness Army Col. Ken Allard, echoing the claims by multiple members of Congress during the WikiLeaks controversy, called the ‘kill list’ and cyberattack leaks “unprecedented” in American history. And much like previous comments about Julian Assange, Allard likened New York Times reporter David Sanger to a spy, saying he was “systematically penetrating the Obama White House as effectively as any foreign agent.”
Similarly, Senator Dianne Feinstein’s recent comments advocating the prosecution of WikiLeaks under the Espionage Act in no sense apply to one media organization but not the other. Salon’s Glenn Greenwald demonstrated this by replacing phrase “Mr. Assange” with “New York Times” in Sen. Feinstein’s statement to the Australian paper The Sydney Morning Herald:
The head of the US Senate’s powerful intelligence oversight committee has renewed calls for [The New York Times] to be prosecuted for espionage. . . .
”I believe [The New York Times] has knowingly obtained and disseminated classified information which could cause injury to the United States,” the chairwoman of the Senate Select Committee on Intelligence, Dianne Feinstein, said in a written statement provided to the Herald. ”[It] has caused serious harm to US national security, and  should be prosecuted accordingly.”
In this case, like many others, Congress has invoked the vague, catchall phrase “national security” in an attempt to curtail rights that have existed for decades. As we’ve previously pointed out, “national security” has been used as an excuse to weaken constitutional protections in laws such as the Patriot Act and CISPA, but it’s also been used in attempts to threaten press freedom.
In 2006, shortly after the New York Timesfirst exposed the NSA’s illegal warrantless wiretapping program, Attorney General Alberto Gonzales told ABC News he was contemplating charging Times reporters under the Espionage Act because of the perceived harm to “national security.” Of course, the investigation didn’t hurt national security, but it did inform the American people of an unconstitutional program that later sparked Congressional hearings, and many ongoing lawsuits (including EFF’s). It also won the New York Timesthe Pulitzer Prize.
The same exaggerated “national security” arguments were made during the Pentagon Papers case and manyotherinstances as well. Yet as New York Times editor-in-chief Jill Abramson remarked in the wake of these new leaks, "No story about details of government secrets has come near to demonstrably hurting the national security in decades and decades.”
Still, the nation’s largest editorial boards—the New York Times, Washington Post, and Wall Street Journal—have been silent on the dangers of the WikiLeaks grand jury. If the mainstream media thought they were protected by the 1st Amendment while WikiLeaks could be prosecuted, they should now be on clear notice that the government makes no such distinction.
If the mainstream media leaves Wikileaks to hang, their own necks are at risk too.
FAA Releases Thousands of Pages of Drone Records to EFF
In response to EFF’s Freedom of Information Act lawsuit, which has already uncovered the list of all entities licensed to fly domestic drones, last week, the FAA released the certificates of authorization and other records related to those authorizations for 18 state and federal agencies flying drones, totaling thousands of pages of newly uncovered records.
The newest batch of FAA documents mainly address safety issues with drone flights, but spur many unanswered questions about the privacy implications of drones. EFF continues to look through the documents and will report on them shortly.
Review of Classification System Yields Elimination of Over 400 Classification Guides
After a two-year review of the classification system ordered by President Obama, the Pentagon finally released a published report. The report reveals that the Department of Defense (DOD) eliminated 413 of its 2,070 classification guides. The guides are intended to provide classification instructions for programs and issue areas. The Navy, the department with the largest number of classification guides at 988, eliminated close to 250. Despite the elimination, there are still over 1,600 guides at the DOD that mandate when to classify and redact information. The elimination helps streamline classification, but the sheer number of guides provides further evidence for the argument that government processes encourage the routineoverclassification of documents.
Drake's Attorneys Support Relief From Protective Order
Last week we reported on a government response to a motion filed by Thomas Drake's attorneys in which the government argued that an expert witness, J. William Leonard, Bush's former classification czar, must file a FOIA request in order to speak publicly about the contents of a now declassified email he viewed and spoke about while serving as an expert witness in the case. Leonard wants to be lifted from the order so that he can discuss the contents of the email as a classic example of overclassification. In their response to the government, Drake's attorneys argued that even if Leonard were to receive the document via a FOIA request, he must still be relieved from the court protective order to discuss the contents of the email. The lawyers also noted that the government has not only already declassified the email, but also admitted to having a public-ready version of the email. With both briefs filed, the decision is left up to the court and should be ruled on shortly.
Congressional Push to Look Into Cell Phone Requests
After it was revealed that law enforcement agencies demanded cell phone data, including text messages, caller location, and other information 1.3 million times from service providers, House Democrats are pushing for a hearing on whether consumer privacy is being adequately protected by law enforcement officials and wireless carriers. The letter (PDF) urges Republicans to hold a hearing and notes how phone companies profit off the demands because they charge law enforcement for each request. EFF has consistently warned about the potential abuse of such demands.
Canada’s online surveillance bill may be on hold for now, but a recent news article confirms that a rather formidable figure has been angling for its return: Richard Fadden, head of the Canadian equivalent of the FBI. Fadden, director of the Canadian Security Intelligence Service (CSIS), wrote in a letter that the highly contentious Bill C-30 was “vital” to protecting national security. The letter was sent to Public Safety Minister Vic Toews, the driver behind Bill C-30, in late February. It was released to the Canadian Press in response to a request filed under the Access to Information Act.
As EFF has noted before, Bill C-30 would introduce new police powers allowing Canadian authorities easy access to individuals’ online activities, including the power to force Internet companies to hand over private customer data without a warrant. It would also pave the way for gag orders preventing online service providers from notifying subscribers that their private data has been disclosed — a move that would make it impossible for users to seek legal recourse for privacy violations.
Similar gag orders are frequently imposed in the United States, when the FBI issues national security letters (NSLs) seeking customer information. In a case EFF has taken on to challenge an NSL statute on behalf of a telecommunications company that received one of these secret letters in 2011, fundamental due process and First Amendment issues arising from these gag order provisions are a central concern.
Toews, the bill’s proponent, has made some outrageous claims about Bill C-30. Early on, he stated that opponents of the bill were either with him, "or with the child pornographers,” an apparent attempt to paint the legislation merely as a tool to combat online predators. Yet this framing of the issue was roundly rejected by stakeholders – as EFF reported back in February, internal documents reveal that even the government’s own analysts have claimed the powers in question were actually needed for non-criminal investigations.
In spite of this, Fadden made it clear in his letter that he’s eager to see the bill return to Parliament. He offered to help draft revisions to the legislation to strengthen accountability measures, and stated that his agency is available “to support this process through all legislative stages.”
This did not come as a great surprise to Canadian privacy advocates. “CSIS has been a strong (but silent) supporter of the legislation for quite some time,” said Tamir Israel, of the Canadian Internet Policy and Public Interest Clinic (CIPPIC). “Unfortunately, [Fadden’s] statement … offers little that will make this legislation palatable to Canadians. CSIS already has very broad surveillance powers and they have yet to make the case that these new powers are, in fact, necessary for them to continue to do their job.”
Fadden’s focus on strengthening accountability fails to address the endemic problems in Bill C-30. British Columbia Privacy Commissioner Elizabeth Denham hit on the inherent problems with this approach in her assessment of prior government attempts to fix Bill C-30 by introducing stronger accountability:
I appreciate these changes attempt to improve the legislation. However, they remain premised on, and leave unaltered, the Bill’s fundamental flaw; that law enforcement can obtain an array of personal information about citizens, including real names, home addresses, unlisted numbers, email addresses and IP addresses from Internet service providers, without a warrant.
The Ontario Privacy Commissioner has also issued a detailed outline of what it would take to fix Bill C-30. And Denham’s perspective is shared by a broad cross-section of Canadians.
“If there's one lesson Toews should have learned from the huge public outcry via the over 145,000+ who have spoken out through the StopSpying.ca petition and social media, it is that the government needs to make an effort to consult Canadians on issues relating to online privacy,” said Steve Anderson of OpenMedia.ca. “Canadians know this online spying bill will provide a range of authorities with the private information of any Canadian, at anytime, without a warrant. The fact is Vic Toews’ online spying plan is invasive, costly and poorly thought out.”
More recently, Toews claimed that Bill C-30 would have helped law enforcement apprehend accused killer Luka Magnotta, who has been charged in the gruesome murder of a Chinese university student. But Dr. Michael Geist, an expert in Internet and E-Commerce law and law professor at the University of Ottawa, immediately debunked this assertion:
“There is simply no question that law enforcement can obtain the necessary warrant on customer name and address information (if an ISP refused as part of an investigation) and police have presumably obtained warrants for far more detailed information. Moreover, the surveillance capabilities at ISPs mandated by C-30 - which focus on real-time surveillance - appear completely irrelevant given that Magnotta fled to France. In fact, reports indicate that there were early warnings about Magnotta and the video openly available that were dismissed by police.”
For his part, Israel characterized Toews’ statements as “more posturing from the Ministry of Justice and more crude attempts to leverage inflammatory issues in order to justify unnecessary and excessive powers.”
EFF continues to stand with Canadian privacy advocates who remain wary of Bill C-30’s return. We will continue to keep an eye on this legislation, which may be revisited once Parliament is back in session this coming fall.