The US Senate is currently debating a dangerous bill that, if passed, would have broad consequences for press freedom and the public’s right to know. EFF asks senators to stand up for government transparency and the First Amendment and vote it down.
The bill’s provisions, buried in the annual Intelligence Authorization Act, are intended to stop leaks of classified information to reporters—a premise worrying in itself—but it is written so sloppily it will also severely impair government transparency and prevent the media from reporting on national security issues.
The problems with this bill are extensive and severe. As the New York Times pointed out in an unusually forceful editorial last Friday, it has been “drafted in secret without public hearings” and bars most government employees from giving press background briefings, even if the information is unclassified—vital for media organizations when reporting on complex issues. Another provision prohibits officials from writing op-eds or appearing on television, again, even if the information is unclassified—a clear prohibition on protected speech.
Classification expert Steven Aftergood documented several specific problems with the bill’s broad definitions, most notably that the bill doesn’t differentiate between properly and improperly classified information. Even the Freedom of Information Act, which carries a broad exception for classified information, insists it must be “properly classified.”
This is especially troubling given that the government’s secrecy system has ballooned to absurd proportions, to the point where virtually every government action in the national security or foreign policy realm has been stamped classified, many times improperly. Information is regularly classified to hide embarrassing details, government waste, corruption, and even serious constitutional violations. The former head of the U.S. classification process, J. William Leonard, recently called the system “dysfunctional” because it “clearly lacks the ability to differentiate between trivial information and that which can truly damage our nation’s well-being.” The bill’s definition is virtually an invitation for government officials to further use secrecy to hide their conduct.
And if classification were used to hide such wrongdoing, “there is no exception carved out for whistle-blowers or other news media contacts that advance the public’s awareness,” as the New York Times reported. At the same time, Congress, its staff, and other high level officials are exempt from many of the bill’s provisions.
The Obama administration has already been far too aggressive in prosecuting whistleblowers—its charged more leakers than all other administrations combined—and the latest, wide ranging FBI investigation into new leaks is “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings” as the New York Times reported on its front page last Thursday. The new anti-leaks bill has the potential to permanently alter the way news media can interact with government officials. As the New York Times editorial board said in its criticism Friday, this won’t just chill the press, but potentially “undermine democracy by denying Americans access to information essential to national debate on critical issues like the extent of government spying powers and the use of torture."
Perhaps the most disturbing aspect of this bill is the fact that it has been proposed at all. As Steven Aftergood notes, “there is something incongruous, if not outrageous, about the whole effort by Congress to induce stricter secrecy in the executive branch, which already has every institutional incentive to restrict public disclosure of intelligence information.” Aftergood reminds us that, in the past, leaks led to investigations into the programs exposed and to “substantive” Congressional oversight. In stark contrast, the response to leaks in the years since September 11, 2001—by both Congress and the Executive—has been to prosecue whisteblowers—and even reporters—and to ensure even more information is kept secret from the American public.
Take, for example, the national debate on the use of classified drone strikes in overseas military operations. As the New Yorker’s Steve Coll wrote, the new book by Newsweek reporter Daniel Klaidman on President Obama’s use of classified drone strikes discusses “the first instance in American history of a sitting President speaking of his intent to kill a particular U.S. citizen without that citizen having been charged formally with a crime or convicted at trial.” Similarly, when the New York Times reported on U.S. cyberattacks against Iran—another target of recent leak investigations—the Times said the decision to engage in offensive cyberattacks was so consequential and unprecedented, that it is comparable to “the first use of atomic weapons in the 1940s.”
These are just two instances of decisions by the President which -- whether you agree with them or not-- should be debated and scrutinized in both the halls of Congress and the public sphere. Yet because they are hidden behind giant walls of secrecy, there is no oversight or accountability, and the public has no say in decision as to whether the country should be engaging in them at all.
Late Friday, Chairman of the Senate Intelligence Committee Dianne Feinstein said the committee would “reconsider” some of the proposals after receiving a firestorm of criticism last week. She should go farther and strike them entirely—they have no place in a democracy that values government transparency and prides itself on press freedom and justice under the law.
EFF believes that it is vitally important that fair use and exceptions and limitations to copyright be protected in international trade agreements. But the United States Trade Representative (USTR) is putting Fair Use at risk with restrictive language in the Trans-Pacific Trade Agreement (TPP). The US and Australia are both proposing very restrictive text, and Peru is willing to accommodate the bad language. KEI reports on the leak of the negotiating TPP text on copyright limitations and exceptions.
“Limitations and exceptions are positive enabling doctrines that function to ensure that intellectual property law fulfills its ultimate purpose of promoting essential aspects of the public interest. By limiting the private right, limitations and exceptions enable the public to engage in a wide range of socially beneficial uses of information otherwise covered by intellectual property rights—which in turn contribute directly to new innovation and economic development. Limitations and exceptions are woven into the fabric of intellectual property law not only as specific exceptional doctrines (‘fair use’ or ‘fair dealing,’ ‘specific exemptions,’ etc.), but also as structural restrictions on the scope of rights, such as provisions for compulsory licensing of patents for needed medicines.”—Washington Declaration on Intellectual Property and the Public Interest (2011)
“Among other things, this puts copyright exceptions for ‘criticism, comment, news reporting, teaching, scholarship and research’ under a restrictive three-step test, even in the areas where the Berne Convention and the TRIPS have different standards for exceptions, such as fair practice, or a total green light.”
It is critical to ensure that any language introducing the three-step test ensure that the test is not narrowly construed and also ensure that it is without prejudice to other existing limitations and exceptions that fall outside this test and that are included in international conventions. In particular, we note that the Berne Convention and the Rome Convention both have several articles that specifically provide for copyright limitations and exceptions without a 3-step test.
It is important to remember that the USTR does not represent a unified voice in the US, even though it is the executive office leading the TPP negotiations. However, the lack of transparency makes it difficult for others—including the US Congress—to participate in this debate.
The next round of negotiations will take place in Leesburg, Virginia from September 6-15, 2012. During this round the public can participate through an accreditation process that allows Direct Stakeholder Engagement—an opportunity to speak directly and one-on-one with negotiators, raise questions, and share views and briefings. During the last round, in San Diego, EFF made a series of presentations and organized events with movements such as Occupy.
As reported by Inside US Trade, on July 6, the discussion in Virginia next month could focus on some copyright issues, as the US might seek initial reactions to its new proposal on copyright limitations and exceptions. This leaked text was actually formally presented to country delegates near the end of the last formal round in July, but TPP parties were unable to have a substantive discussion about it. Negotiators may now be prepared to discuss the proposal in depth after having taken it back to their capitals for review, sources said. TPP partners may also discuss other copyright issues, such as US-proposed provisions relating to IPR enforcement on the Internet, including new language on limitations and exceptions, sources said. Sources said it was unclear which specific issues US trade officials would discuss with their counterparts in Malaysia and Vietnam this week; however, it worries other organizations working in the access to medicines and development areas, such as Public Citizen and Third World Network.
Discussion of these issues during bilateral dealmaking is a move that completely closes the TPP text to discussion with outsiders, and unfairly exploits the market power of the US to bias the outcomes of the Virginia discussions. This process also puts fair use at risk, since trade agreement provisions are subsequently pushed through Congress based on a rhetoric of international obligation, creating domestic intellectual property law behind closed doors and bypassing the democratic law making process.
If you're in the United States, urge your lawmakers to call a hearing on the contents of the TPP that will impact your digital rights, and more importantly, to vote this deal down when it comes to them for ratification:
There is a chronic lack of material in formats accessible to the world’s visually impaired and print disabled citizens. Visually impaired people face a “book famine” in which 95% of books published in rich countries and 99% in poorer countries are never converted into accessible formats such as audio, large print or braille.1 The fastest way to address this famine is to change the copyright law: create exceptions and limitations that permit shifting of content into formats accessible to the blind, and allow cross-border exchange of content in accessible formats.
Copyright maximalists argue against change, pointing out that individual countries can make these changes themselves. However, despite the discretion left open to countries by the international copyright framework, only 57 countries—representing fewer than half of WIPO’s 184 Member States—were identified as having created specific exceptions in their national laws for the benefit of the visually impaired.2 And as the Sullivan report (2007) documents, there is considerable uncertainty about the legality of importing and exporting accessible material across borders, restricting access to knowledge and requiring unnecessary duplication.
EFF believes that protecting liberties online includes making sure that all people, regardless of disability, can participate in the online world. We therefore support a binding treaty to guarantee access to copyrighted materials through a set of clear exceptions and limitations for the visually impaired. Although some are suggesting the use of international norms instead, there is no evidence that non-binding instruments actually will protect the liberties of the visually impaired. A study released in 2011 by Yale University also shows that in this context of human rights and copyright, soft law would do more harm than good and a binding treaty is needed.
We’re not the only ones calling for a treaty. And it’s seemed at times as if we were close to achieving one. But in the last World Intellectual Organization (WIPO) meeting in Geneva, from July 16 to July 25, 2012, member countries again failed to implement a treaty that enables copyright law to serve the visually impaired. And the scenario going forward looks just as bad, as this map of European countries indicates. Worse, not only is the US not helping, it has probably stalled the treaty for another year.
The meeting itself was disappointingly opaque. All through the supposedly open event, WIPO member states were still holding informal meetings that were closed to observation by even accredited organizations like EFF. The WIPO secretariat finally circulated, late in the night before the last day of negotiations, the conclusions text that follows.
a) that an inter-sessional meeting of the SCCR be held in Geneva between the 2012 General Assembly and the 25th session of the SCCR, and that funding be provided according to the usual formula, for experts from developing countries to participate in the meeting. The exact dates will be determined by the WIPO Secretariat.
b) that the item of limitations and exceptions for visually impaired persons/persons with print disabilities will continue in the 25th session of the SCCR with a view to conclude or advance substantially the text-based work on limitations and exceptions for visually impaired persons/persons with print disabilities.
c) that the General Assembly convene an extraordinary session to be held in December 2012 to evaluate the text from SCCR/25 and to make a decision on whether to convene a Diplomatic Conference in 2013.
The Committee also is moving forward with work on the "Working document on an international instrument on limitations on limitations and exceptions for visually impaired persons/persons with print disabilities" (document SCCR/23/7), and adopted a revised version contained in document SCCR/24/93
The World Blind Union is one of the organizations that has been campaigning for years now at WIPO and other venues for the removal of copyright barriers which prevent blind, partially sighted, dyslexic and other “reading disabled” people from accessing books. Even exhausted from ten days of meetings, Chris Friend of WBU told James Love of Knowledge Ecology International that his organization will keep moving their work forward.
The impact of publishers and their lobbying efforts is the most important factor in the inability of WIPO to agree on terms for a treaty. To publishers, it’s better to disenfranchise the blind than to allow any exceptions or limitations to copyright. In this video, Alan Adler (Vice President for Legal and Government Affairs for the Association of American Publishers—AAP) explains why his organization opposes a WIPO treaty on this topic.
We’re talking about a treaty to help the visually impaired, whose disability in a digital age is tantamount to a loss of liberty and full participation in the knowledge society. One of the reasons why the World Blind Union and other organizations with similar focus support the treaty is that they don’t want to be second-class citizens. How is a copyright change that makes the visually impaired full citizens in electronic society so difficult to achieve?
The Advisory Board documents show that FBI's database of facial images will provide search results automatically (the system won't need to rely on a human to check the results before forwarding them to the state or local agency) and that the FBI is developing "Universal Face Workstation software" to allow states that don't have their own "Face/Photo search capabilities" to search through the FBI's images.
After we read through the Advisory Board documents, we quickly sent Open Records requests to several of the states involved in the pilot program. The documents we received from Maryland and Hawaii further flesh out the story. For example, the Memorandum of Understanding (MOU) between Hawaii and the FBI shows that the government is building NGI to “permit photo submissions independent of arrests.” This is a problem because, the FBI has stated it wants to use its facial recognition system to "identify subjects in public datasets” and "conduct automated surveillance at lookout locations" (p.5). This suggests the FBI wants to be able to search and identify people in photos of crowds and in pictures posted on social media sites—even if the people in those photos haven’t been arrested for or even suspected of a crime. The FBI may also want to incorporate those crowd or social media photos into its face recognition database.
And an MOU between Maryland and the FBI will allow Maryland to submit photos in bulk to the database—something that Maryland described in an email as a “photo data dump.” This kind of an agreement could be used in the future to incorporate the same kind of facial identifying information already collected by 32 of 50 state DMVs solely to prevent fraud and identity theft.
The Advisory Board documents contain other concerning information. For example, one document discusses the FBI’s plans to combine civil and criminal biometrics records by giving them a single searchable “master name” or unique identifying number. As we’ve noted, criminal and civil records have always been kept separate in the past. While this may be a function of the differences in how each type of print is collected and stored, it has effectively meant that civil prints—collected for employment verification, for background checks, for federal jobs, and even to become a lawyer in California—have not been automatically searched every time criminal prints are checked against the database. That will all change once FBI implements its unique identity system. Although FBI states that “the criminal and civil files will remain logically separated...[to] ensure that retained civil submissions remain untainted by criminal submissions” it’s hard to see how this is functionally true, given that civil files will be searched at the same time as criminal files.
Another document discusses the federal government's extensive biometrics sharing relationships with other countries. It notes that the FBI's Global Initiatives Unit has already collected over 990,000 records from foreign partners, with over 600,000 of those coming from Afghanistan. The FBI already has information sharing relationships with 77 countries, (p.2), but CJIS is now trying to partner with "Visa Waiver Program countries" like Ireland, Spain and Australia to allow automatic access to each other's biometric databases on a "hit/no hit basis." This kind of access has already been set up to connect the German and US biometric databases.2
And finally, as NDLON has discussed in greater detail, the documents show just how far the FBI and DHS partnership has progressed to maximize datasharing as part of the Secure Communities program.For example, NDLON notes that FBI has mobile devices that permit searches of the entire IDENT database in the field. These mobile devices may subject individuals to immigration background checks without ever being arrested or booked.
The FBI has not updated the Privacy Impact Assessment (PIA) for its photo database since 2008—well before signing MOUs with the states to share face recognition data and before the development and deployment of NGI’s facial recognition capabilities. As EFF recently testified during a Senate Subcommittee hearing on facial recognition, Americans should be very concerned about the government’s plans to build up its facial recognition capabilities:
Facial recognition takes the risks inherent in other biometrics to a new level...[it] allows for covert, remote, and mass capture and identification of images, and the photos that may end up in a database include not just a person’s face but also what she is wearing, what she might be carrying, and who she is associated with.
Without an updated PIA, it is impossible to tell exactly how the FBI plans to acquire and use facial recognition data now and in the future. However, given the information in these new documents and the FBI's broad goals for face recognition data, the time is right for laws that limit face recognition data collection.
To see all the documents, go to our landing page for NGI and click on "Documents" in the middle toolbar.
1. The FBI’s CJIS Division manages the FBI’s biometrics databases, including its legacy fingerprint database (IAFIS) and NGI. CJIS’s Advisory Policy Board is charged with reviewing the “policy, technical, and operational issues related to CJIS Division programs” and makes recommendations to the FBI’s director. The Advisory Board is made up of 34 representatives from state, local, and tribal criminal justice agencies, and includes representatives from national security, and prosecutorial, judicial, and correctional sectors of the criminal justice system. It meets twice a year—generally in open meetings announced in the Federal Register—though it appears the materials from those meetings are generally only distributed to attendees and through an online system “only available to persons duly employed by a law enforcement, criminal justice, or public safety agency/department, and whose position requires secure communication with other agencies.”
2. The documents state the connection won't be operational until Germany addresses some "remaining internal details."
Frivolous, abusive legal attempts to intimidate and silence online critics are hardly rare. From school superintendents to developers to mayors to businesses, bogus lawsuits are often tempting tools for those looking to expose and embarrass critics or simply intimidate them into silence. While we've seen many ridiculous lawsuits filed in recent years aimed at improperly unmasking anonymous online speakers, however, an action filed in the Northern District of California last month stands out given its unusually high number of abusive elements (even for a "John Doe" case).
On July 6, Northcliffe Media Limited, a UK newspaper conglomerate owned by the publisher of the Daily Mail, filed suit in federal district court after its CEO Steve Auckland was parodied in a series of spoof Twitter accounts such as @unstevedorkland. The Twitter feeds, featuring a thumbnail photo of George Clooney (a nod to Auckland's apparent resemblance to the superstar actor—decide for yourself), mocked the CEO and operations at the company, documenting (presumably) fictitious exchanges with Northcliffe employees and portraying the executive as pompous and out-of-touch. Instead of ignoring the feeds (which, at the time, had only a handful of followers), Auckland and Northcliffe filed suit and promptly followed it with a subpoena to Twitter for the identity of the user. And what a suit it was.
Where to begin? The complaint is nothing short of ridiculous.
Bogus "hacking" allegations. Northcliffe opined that the problem with the spoof accounts weren't that they made fun of the CEO but that the information included must have been the result of computer hacking in violation of federal and (California) state anti-hacking statutes. What computers were hacked and when? Northcliffe doesn't say, but it points out that some of the information tweeted was "not publicly known" and therefore speculates without a shred of evidence that "the only way that such information could be obtained was by hacking into an email account at Plaintiff's business." (It completelly ignores, for example, that the accounts could simply have been set up by a disgruntled employee or someone else who is privy to Northcliffe gossip.) Unfortunately for Northcliffe, speculation of this sort doesn't cut it in federal court and such claims would have promptly been thrown out.
Mystery claims of "defamation." Northcliffe also argued that some of "UnSteveDorkland's" tweets were defamatory. Which ones? Again, Northcliffe won't say. As a First Amendment matter—and the First Amendment is squarely at play as U.S. courts won't order relief for foreign claims inconsistent with the First Amendment—plaintiffs need to actually identify what online statements they are claiming are defamatory and explain why. Moreover, as Auckland is a public figure, Northcliffe would have the burden of proving that any "defamatory" statements were indeed false. This claim too failed on its face.
Meritless "online impersonation" allegations. Northcliffe also argued that the Twitter user somehow "credibly" impersonated Auckland in violation of a controversial new California statute aimed at stamping out identity theft and other malicious instances of online impersonation. Even leaving aside the statute's questionable constitutionality, it would have been all but impossible for Northcliffe to show that readers would somehow confuse the musings of "UnSteveDorkland" with the upset CEO. (Perhaps the accounts of late night fast food consumption hit a bit too close to home.)
Unathorized subpoenas. The complaint was anything but serious and seemingly just a pretext to issue a subpoena to unmask the CEO's critic. That subpoena strategy is bad enough when courts are involved—litigation is expensive and judges sometimes get it wrong. But Northcliffe's attorneys shockingly issued a subpoena to Twitter without even waiting for court permission. Attorneys self-issue subpoenas in federal cases by invoking the power of the federal courts and are not literally issued by courts themselves, but attorneys correspondingly have what the Ninth Circuit Court of Appeals has called a "grave responsibility to ensure that [the subpoena power] is not abused." Indeed, the Fifth Circuit Court of Appeals recently affirmed a $32,000 sanctions order in an EFF case in which the opposing counsel did something similar. In the Northfield case, the plaintiff just ignored its obligations to get court permission first and went ahead and tried to subpoena the information from Twitter before anyone knew what was happening.
Luckily, UnSteveDorkland had help. Frank Sommers of the San Francisco firm of Sommers & Schwartz LLP filed a motion to quash on Tuesday, pointing out not only the legal deficiency of the complaint but also the serious misconduct regarding the issuance of the subpoena. Two short days later, Northcliffe not only withdrew its subpoenas, it dropped the case entirely. It remains to be seen whether they'll try again but, Streisand Effect reaffirmed, UnSteveDorkland will have far more attention for his musings in the meantime than he or she possibly could have hoped for before the case began.
Last week, the former Soviet nation of Tajikistan made headlines for having launched a program of Internet censorship. In fact, the country has been known to selectively block websites for political reasons for several years; this latest news actually involves the introduction of a "volunteer-run body that would monitor the Internet for citizens who criticize President Imomali Rakhmon."
In the same week, however, there was news of new censorship in the wake of conflict in the eastern autonomous province of Gorno-Badakhshan. According to Eurasianet, telecommunications lines to the province were cut on July 24 and the website of Asia-Plus, the country's largest independent news agency, has been blocked. It was also reported that several ISPs had blocked YouTube.Early in 2012, authorities in the country also briefly blocked Facebook.
We urge the Tajik government to restore access to these sites.
Nigeria's Senate President Calls for Censorship
In Nigeria, where online censorship has not previously been reported, Senate President David Mark is calling for authorities to clamp down on social media in light of its being used to "demean leaders." Mark is no stranger to Internet regulation; for years the Senator has pushed for cybercrime legislation in the West African country, calling cybercrime a "crime against humanity." Still, at a time when a major cybercrime bill was on the table in Nigeria, the OpenNet Initiative stated that the Nigerian government "appears to be primarily concerned with fighting cybercrime, and not with regulating online content."
In light of Mark's recent remarks, that may no longer be true. EFF will be keeping a close eye on Nigeria as this story develops.
Morocco Arrests Another Netizen
Morocco has arrested yet another netizen, at least the third so far this year. The young man, whose name has not been made public, was arrested in mid-July for reportedly publishing cartoons depicting the Prophet in the form of different animals. Online news site eMarrakesh reported that the young man's arrest was ordered, in a rather ironic twist, by Minister of Justice and Freedom Mustapha Rashid.
As we've written before, there are three red lines that journalists and netizens in Morocco may be at risk for crossing: Insulting the monarchy or Islam, and denying Morocco's sovereignty over the disputed Western Sahara.
Vietnamese Blogger's Mother Protests Daughter's Imprisonment By Self-Immolating
The mother of imprisoned Vietnamese blogger Ta Phong Tan died earlier this week after setting herself on fire to protest her daughter's detention on charges spreading anti-state propaganda. Ta Phong Tan, a former police officer who documented social injustice on her blog Conglysuthat (Vietnamese for "Justice and Truth"), was arrested in September of 2011, according to the France-based exile support group Vietnam Committee on Human Rights. She was also a member of the Free Journalists Network of Vietnam, a press freedom group that Nguyen Van Hai helped found and which now operates from exile. She is due to stand trial this week in Ho Chi Minh City. The Vietnamese government exerts tight control over the media and has little tolerance for criticism. If found guilty, Ta Phong Tan could face up to 20 years in prison.
"We are deeply sorry to learn of the tragic death of Ta Phong Tan's mother, Dang Thi Kim Lieng, and send our condolences to the family," said Bob Dietz, CPJ's Asia program coordinator. "This serves as a shocking reminder that Vietnam's campaign against bloggers and journalists exacts an unbearable emotional toll on the individuals involved." EFF joins CPJ in extending our condolences and will keep a close eye on Ta Phong Tan's upcoming trial.
The Cybersecurity Act of 2012 (S 3414) Defeated in Senate Vote this Morning
This morning, the US Senate defeated the Cybersecurity Act of 2012, a bill that would have given companies new rights to monitor our private communications and pass that data to the government. The bill sponsors were 8 votes short of the 60 votes necessary to end debate on the bill (vote breakdown here). This is a victory for Internet freedom advocates everywhere. Hundreds of thousands of individuals emailed, tweeted, called, and sent Facebook messages to Senators asking them to defend privacy in the cybersecurity debate. Those voices were heard loud and clear in the halls of Congress today. EFF extends our heartfelt thanks to everyone who fought with us on this issue.
We can all be proud today that there was no law enacted on our watch that would have compromised the online privacy rights of Internet users in the name of cybersecurity.
We beat the bill, and we changed the conversation
Pressure from civil liberties groups and Internet users didn’t just defeat the bill – it changed the conversation around cybersecurity in fundamental ways. Working together, we convinced the bill sponsors to put privacy protections into the final version of the Cybersecurity Act, which made it superior to any of the other cybersecurity bills being considered by Congress. While the bill still had big problems, there were new privacy protections such as limitations that prevented data collected for cybersecurity purposes from being used to prosecute unrelated crimes. Those privacy protections were created as a direct result of pressure from the netroots.
Internet users also found they had powerful friends in the Senate. Senators Al Franken, Richard Durbin, Chris Coons, Bernie Sanders, Daniel Akaka, Ron Wyden and Richard Blumenthal championed civil liberties fixes to the bill. Senator Wyden, in particular, opposed the bill on privacy grounds, stating:
Today’s vote was one in which Senators were asked to sacrifice Internet users’ privacy and civil liberties for weak proposals to improve cyber security; I voted no.
And Senators Al Franken and Rand Paul sponsored an amendment that would have removed the most privacy-invasive provisions of the bill. These champions of online rights helped us in the cybersecurity fight – and will hopefully stand with us again in defending civil liberties the next time this issue arises.
Vigilance: no cyber spying today, no cyber spying ever
Today, we celebrate. But threats are on the horizon.
Congress has been working to pass cybersecurity legislation for years – and for years, EFF has fought to ensure that civil liberties weren’t sacrificed in the process. This year was the hardest fight of all: Congress got closer than ever to enacting a cybersecurity bill that could threaten the privacy of our online communications. We fought back with everything we had and defeated the bill, but they’ll be back – either this fall or next year.
And we’ll be ready for them.
It is the commitment and passion of EFF members that is necessary to defending against this type of anti-freedom legislation. Without those voices, we would never have beaten back SOPA, HR 1981, or the Cybersecurity Act. Thank you for making this possible.
EFF is committed to defending our online freedoms against all threats, and the majority of our funding comes from individuals making small donations. If you believe in the work we’re doing to safeguard liberty in the digital age, please make a donation or become a member. We’ll use your financial support to advocate for users, innovation, and civil liberties.
We’ve built a coalition of advocacy groups from all sides of the political spectrum willing to do what it takes to defend our online rights. Many of them are partners who worked with us to defeat SOPA. We’re thankful to groups and companies like American Civil Liberties Union, American Library Association, Center for Democracy and Technology, Competitive Enterprise Institute, Demand Progress, Fight for the Future, Free Press, Liberty Coalition, Mozilla, Reporters without Borders, TechFreedom, Techdirt and many, many others. We know that whenever fundamental freedoms are threatened, they will dive once more unto the breach to fight fearlessly for what’s best for Internet freedom. Thank you!
The idea behind copyright is simple — it is supposed to be a balance in the service of the public interest. There's a trade-off: for accepting a restriction on certain speech, the public benefits from the production of more new creative works each year. That delicate equation is complicated by many factors, and the right policy should find the balance of copyright scope and duration, limitations and exceptions like fair use, and the appropriate remedies in case of infringement.
But in fact, copyright policies almost universally lack the serious cost-benefit analysis that must precede any evidence-based proposal. And indeed, while the unintended costs are clear to anybody who has observed abuse of, say, the DMCA takedown system, the evidence that these policies create incentives — or even prevent harm — is less forthcoming.
Last week Julian Sanchez of the Cato Institute posted a thought-provoking piece that questions the similar calculation at the core of national security rhetoric. In the area of security, he asks, are we actually getting a "trade-off" for all the costs we incur to the country’s budget and our personal liberty? Sanchez convincingly argues that we haven’t been working towards a balance between those two ideas at all. Liberty is consistently discarded in the name of “security,” and the resulting policies don't actually make us safer. A dialogue that focuses only on striking a balance between these two ideas fails to address more fundamental questions about our policy.
It makes sense, then, that one typical response to bad copyright policy developments — and there are many — is to say that those developments skew this balance the wrong way, favoring the incentives and rewards for rightsholders more than is necessary to maximize creative production. But that approach overlooks the fact that many of the worst copyright proposals, like those that come out of content lobbying groups like the RIAA and the Motion Picture Association of America (MPAA) do worse than a skewed balance. Rather, they fail to strike any kind of balance at all, curtailing speech and fundamental online rights without a corresponding increase in the incentive to create new works.
Similarly, when the 1998 Copyright Term Extension Act — sometimes called the "Mickey Mouse Protection Act" because it kept the world's most famous rodent out of the public domain — was challenged in the Supreme Court, some of the world's leading economists lined up in a brief [pdf] to question the premise that the public benefited from retroactive term extension at all. Once again, the costs to the public are clear: we all suffer from a poorer public domain with no clear gains in return. Worse, these examples are the rule and not the exception. Many elements of policy today — from DMCA's problematic section 1201 to the unconstitutional ICE seizures of websites — and dozens more failed proposals — like the "Hollywood Hacking bill" or the broadcast flag — fit this pattern.
Compared to the trade-off of security and liberty, the question at the heart of copyright policy is an easy one: How do we optimize the incentive to create new works while minimizing the cost to our freedom of speech and ability to innovate? Unfortunately, sane policy developments that work toward this end are all too rare.