The United Kingdom’s draft Communications Data Bill, more commonly known as the Snoopers’ Charter, has drawn a sharp critique from the Global Network Initiative (GNI). In a submission to the UK Parliament’s Communications Data Bill Joint Scrutiny Committee, the organization outlined serious concerns with the proposed legislation, which would expand governmental powers to access the online communications of all UK citizens.
GNI is a coalition of companies, civil society organizations (including EFF), investors and academics working collaboratively to advance freedom of expression and privacy in the Information Communications and Technology (ICT) sector.
One major problem is that the UK Snoopers' Charter contains a provision requiring the generation of data specifically and only for law enforcement access, making it even more extreme than the highly problematic EU Data Retention Directive, which EFF is working to repeal. From the GNI submission:
The bill broadens the collection and retention of new data on anyone in the UK using communications services. This includes requirements to generate data—not required for business purposes and not routinely collected by providers—specifically and only for the purpose of law enforcement access. This provision goes beyond the existing requirements under the Regulatory and Investigatory Powers Act (RIPA) and the EU’s Data Retention Directive.
Furthermore, not only would the Snoopers’ Charter further erode the privacy rights of its UK citizens, GNI pointed out, it could set a negative precedent that would give authoritarian regimes a model to point to when seeking to justify surveilling their own citizens. Such an outcome could have grave consequences for human rights.
This … could set a powerful precedent for repressive regimes to follow when seeking to justify surveillance on their own populations. Regimes attempt to claim legitimacy for their actions when they are able to point to similar requirements, even if only in the form of policy statements or draft legislation, in leading democratic nations. An example of exactly this type of reaction came from China in response to statements made in Parliament by the Prime Minister David Cameron in the days following the riots in 2011 around the need to consider placing limits on social networks and allowing greater government access to user communications in certain circumstances.
And while the draft Communications Data Bill seeks to require providers to store communications data, rather than content, of users’ communications, GNI pointed out that such a distinction isn’t always so clear-cut. What's more is that in some cases, access to communications data can be just as privacy-invasive.
Technological advances are also blurring the distinction between communications data and content that is at the heart of this Bill. For example, the URL for a web address can provide considerable access to information about the type of content the user is viewing. Stakeholders must be reassured that communications data could be reliably extracted without also disclosing content. Taken alongside the expanded scope of data collection for anyone using communications services in the UK this must be considered when assessing the proportionality of the proposals.
GNI also flagged problems with the bill’s assertion of jurisdiction over communications service providers based outside the UK, in cases where UK-based users access the services.
The draft Bill could provide unintended justification for actions by other governments. … Even if other jurisdictions do not enact similar or contrary laws, UK citizens’ data could still be at jeopardy. Once other governments become aware of the storage of this additional communications data, law enforcement entities in other jurisdictions will seek to obtain it as well. If ICT companies are required to obtain and retain communications data for UK residents law enforcement entities in other jurisdictions could have a legitimate claim to seek access to it. Non-UK law enforcement entities may either try to obtain it through UK law enforcement or by exerting pressure on companies to release the data without UK cooperation.
Finally, GNI highlighted the specific problems with a reserve power proposed in the bill, which would empower the UK Home Secretary to require UK providers to capture and retain data (specifically and only for law enforcement purposes) in cases where the requirements were unable to be imposed on a non-UK provider.
Setting aside the technical challenges of whether this can be done ... this requirement could have the effect of increasing pressure on non-UK providers to cooperate with law enforcement in informal, voluntary agreements. In contrast, GNI’s Implementation Guidelines commit companies to encourage governments to be “specific, transparent and consistent in the demands, laws, and regulations” they issue.
EFF remains deeply concerned about the UK Snoopers Charter and will continue working in tandem with privacy advocates in the UK to challenge this privacy-invasive legislation.
Canada had been lobbying to enter the Trans-Pacific Partnership (TPP) agreement, and its efforts were seemingly paid off with an exclusive invite to the secretive nine-country trade agreement in June. There is no doubt that the TPP will affect many areas of the Canadian economy from agriculture to manufacturing, but the agreement would also regulate intellectual property rights and that could have big consequences for Internet users’ freedoms.
Unfortunately, the exact provisions negotiated in the TPP are still not known. In the meantime, EFF and other public interest groups have used every possible opportunity to provide analysis and inputs to policy makers about the intellectual property chapter and its impact on digital rights. We interviewed Professor Michael Geist to capture some of the main Canadian concerns specifically related to some of the most controversial intellectual property issues present in the trade agreement.
EFF:How can TPP affect Internet users in Canada? Are you concerned with the "three-strikes" approach?
Geist: If the TPP were to adopt a three-strikes approach, this would run completely counter to current Canadian law and repeated assurances from the Canadian government that it does not believe such an approach strikes the right balance in copyright. The recent Canadian copyright reforms adopted a notice-and-notice approach—which many believe does a better job of preserving free speech online than the US notice-and-takedown system. Despite consistent pressure from rights holders to add a penalty element to notice-and-notice that could include account termination, the government repeatedly insisted that it had no plans for Internet termination. If the TPP were to impose such an approach, it would undo much of the balance the government tried to strike during the most recent round of reforms.
Geist: While Canada has adopted restrictive anti-circumvention rules modeled after the US DMCA, they do not include criminal provisions for individual users. Moving toward criminal penalties for non-commercial circumvention would require changes to current Canadian law and would similarly run counter to repeated assurances from government officials that it had no plans to do so. In fact, government MPs [members of parliament] and ministers often quickly corrected commentators who inaccurately claimed that individuals could face criminal sanction for circumvention.
Geist: It could. The USTR has made much of its inclusion of a limitations and exceptions clause. However, the current Canadian fair dealing rules as interpreted by the Canadian Supreme Court as "users' rights," offer far greater flexibility for consumers and innovative businesses. If the USTR proposal were adopted, it could start the process of restricting users' rights, contrary to Canada's highest court.
EFF: Canada passed a copyright reform law, Bill C-11, in June. Why has Canada adopted a notice-and-notice system? If Canada joins TPP, would it reject the notice-and-takedown system the USTR is pushing for in order to move all countries to a DMCA-like system?
Geist: Canada has gone through several copyright reforms and each has adopted the notice-and-notice approach. The approach has been used on an informal basis for many years in Canada and statistics indicate that it is very effective in educating users about the limits of copyright law without the need for draconian sanctions. Obviously, the TPP would pressure Canada to adopt notice-and-takedown, which experience suggests raises free speech concerns. Other TPP members have also adopted notice-and-notice (i.e. Chile), so I would expect to see opposition to an attempt to create universal notice-and-takedown.
EFF:Do you have any other thoughts on TPP?
Geist:What is striking about this round of negotiations is that the Canadian delegation is again excluded from the discussions. The terms of entry were very severe and there are real questions about the value of the TPP and the significant costs, particularly in the intellectual property arena.
Specifically, given Canada’s late entry into the TPP process, the US was able to extract two onerous conditions that Prime Minister Stephen Harper downplayed as the “accession process.” First, Canada will not be able to reopen any chapters where agreement has already been reached among the current nine TPP partners. This means Canada has already agreed to be bound by TPP terms without having had any input. Since the TPP remains secret, the government can’t even tell us what has been agreed upon. Second, Canada has second-tier status in the negotiations as the US has stipulated that Canada will not have “veto authority” over any chapter. This means that should the other nine countries agree on terms, Canada would be required to accept them.
Join EFF and more than 25,000 people in sending a message to Congress members to demand an end to these secret backdoor negotiations:
UPDATE: This morning, rather than face contempt charges, Twitterhanded overthe data requested by the government, under seal, to the New York Criminal Court. Twitter was faced with a terrible choice between giving ground on its fight for user privacy, or risk a potentially expensive contempt of court citation. According to reporters at the hearing, Judge "Sciarrino said Friday that he will keep the records sealed at least until a Sept. 21 hearing." Hopefully this will give Twitter and Harris enough time to take this to a higher level court, and make sure that this Judge's dangerous decision gets a thorough review before it is too late.
Twitter's ongoing battle to demand that law enforcement request sensitive user information with a search warrant rather than a subpoena has taken a strange and dangerous turn. An ill-advised order from the judge presiding over the case means that either Twitter must disclose data without a warrant, or risk a potentially expensive contempt of court citation.
Unfortunately, Judge Sciarrino has now tried to stop Twitter's challenge to his order disclosing the information. First, he denied Twitter's request to delay disclosure until the case found its way through the appellate process. Then he threatened to hold Twitter in contempt of court if it didn't turn over the data to the government by Friday, September 14. And to put further pressure on Twitter, it ordered it to disclose its earnings statements for the last two quarters, in order to determine an appropriate fine. Of course, if Twitter were to disclose Harris' information to the DA, the privacy damage would be done. The government would likely argue that this moots the appeal, and use that as a basis to prevent the appeals court from ruling on the important legal issues.
Putting Twitter between a rock (turn the data over without a warrant) and a hard place (be held in contempt of court and face a potentially expensive fine) before the complicated legal issues at stake have been resolved by the appeals court is a miscarriage of justice. If Judge Sciarrino is worried that Twitter is making a mountain out of a molehill by continuing to press its challenge to the subpoena, the same has to be asked of the prosecutors who are using a misdemeanor disorderly conduct arrest that occurred more than a year ago as a pretense to obtain a wealth of information. The attempt to obtain this information from Twitter is to prove a point not even really contested: whether Harris was on the bridge during the protest.
This case was shaping up to be a constitutional showdown on a contested and unclear area of the law. Judges much higher up the judicial chain have been wrestling with the complicated issues brought about by the explosion of information turned over to third parties. In her concurring opinion in United States v. Jones, Justice Sotomayor of the U.S. Supreme Court wrote that she "would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." If a Supreme Court justice is thinking about the issues here, why would a state trial court force Twitter into a position where it has to abandon its court case seeking clarity or risk a massive fine in deciding to pursue its appeal? Some have already questioned whether Judge Sciarrino is the right judge to pass on this landmark case.
No matter what Twitter does, it will lose. At a time when companies need to feel empowered to stand up for user privacy, Judge Sciarrino's actions have made it difficult for Twitter to do that. We urge companies not to falter in the face of this setback, and continue to fight for the users.
Privacy rights face a crisis. Governments around the world have been taking overreaching, fear-based surveillance measures against essential online freedoms. Organizing an international resistance demands a complex understanding of both the latest online surveillance trends and of long-standing threats to privacy. Every year, Freedom Not Fear continues to organize a broad international protest against these threats to our civil liberties, and challenge the hyperbolic rhetoric of fear that permeates the security and privacy debate. This September 14th-17th, concerned European Internet users will descend on Brussels to participate in an international week of action against invasive surveillance initiatives. Events will also be staged in Luxembourg and Sydney. Freedom Not Fear’s slogan: Stop the surveillance mania!
EFF is joining the campaign to call attention to pervasive global surveillance measures and to spotlight the movements that have sprung up to oppose them. EFF will be posting articles regularly over the next week, starting today. You can follow our series by subscribing to EFF onTwitter, identi.ca, Facebook, Google Plus or by checking back to this page. We’ll be listing the articles below.
The Freedom Not Fear movement emerged out of widespread European outrage at the EU's 2006 Mandatory Data Retention Directive — an EU law requiring ISPs and telcos to store, for a minimum of six months to two years, data such as who communicates with whom, when, where, and how. In practice, data has often been stored for longer. Large databases continue to be fed with personal data on millions of innocent Europeans, threatening anonymity, privacy, and the confidentiality of journalists’ sources. Since its origins in 2008, Freedom Not Fear has developed the general message: fundamental rights like privacy, free expression, due process, and democratic participation are jeopardized when reactionary, fear-driven surveillance systems penetrate our societies.
NOTE: On Sept. 14 – 17, activists with the Freedom Not Fear movement will stage an international week of action to oppose various forms of surveillance. EFF is spending this week examining surveillance trends and spotlighting movements that have sprung up in opposition. You can follow our series here.
In Buenos Aires, Argentinian privacy activists have joined the Freedom not Fear Global Week of Action alongside with Freedom Not Fear events in Brussels, Sydney and Luxembourg. On Saturday, Sept. 15th, Fundacion Via Libre will host a workshop dedicated to training journalists and activists on secure communications: anonymous browsing, email and desktop encryption. Fundación Vía Libre is a civil rights advocacy group working to protect human rights, access to knowledge and due process in cyberspace. In the last few years, the Argentinean Foundation has campaigned against mandatory data retention regimes, opposed a mandatory biometric system, and promoted encryption technologies and the use of free software by the Argentinean government.
As Beatriz Busaniche of Fundacion Via Libre noted, the Argentinean government has enhanced its mass surveillance capabilities in the last few years:
“In the name of public security, Argentina has adopted State mass surveillance policies, including the heightened monitoring of public spaces, mandatory national biometrics ids, government-issued bus card allowing the tracking of bus riders. We need the right to know how government surveillance technologies are being used against us, and what type of information is being collected. More than ever, the protection of privacy and transparency is particularly vital for our country. This is why we are joining the International Week of Action as to call attention to Argentinean surveillance program.”
The Freedom Not Fear movement comes at a time when there is a need for increased international awareness of mass surveillance practices, which are ascendant as our personal data becomes easier to collect, store, and trade. Privacy rights activism and government transparency have never been more crucial than now in Argentina. This is why EFF is glad to see Fundacion Via Libre joining the movement.
Secret negotiations over the Trans-Pacific Partnership agreement (TPP) continued this week in a golf resort outside Washington DC, and the process continues to be as secret and undemocratic as ever. TPP is yet another example of how the US entertainment and pharma industry are pressuring lawmakers to push forward overprotective intellectual property laws that will also put the Internet and its users at risk.
Last Sunday, EFF was at the negotiations to participate in the “stakeholder” events hosted by the Office of the US Trade Representative (USTR). There were noticeably more organizations and companies present at the three-hour stakeholder tabling session than the last round of negotiations in San Diego.
EFF had roughly 25 delegates and representatives come by the table to engage with us on our concerns with this agreement. We provided them with materials analyzing the agreement based upon leaked texts, and explained how the TPP would impact digital rights in their countries. The Stop the Trap coalition projected public comments on one of the walls of the large hotel conference room, while other stakeholders were protesting outside.
Maira Sutton and Carolina Rossini speaking to a delegate.
Carolina Rossini, EFF’s International Intellectual Property Director, spoke to negotiators at the stakeholder presentation about how the TPP would create incentives for ISPs to police the Internet, and how this will effect users’ right to free speech, privacy, and innovation. A copy of the presentation is available here. Her presentation was followed by the International Intellectual Property Alliance, a coalition of trade associations that supports the expansion of copyright protection and enforcement, with a presentation titled “TPP & IPR: Myths and Realities.” More interestingly, the Walt Disney Company made a presentation titled “Creativity, Brought to you by Copyright,” which asserted that creativity and innovation is not possible without copyright protection. The full schedule of stakeholder presentations is available here.
Carolina Rossini presenting on TPP and ISP liability
The stakeholder engagement events in the morning were followed by a stakeholder briefing in the afternoon. The briefing allowed registered individuals from civil society and the public to ask questions of and make comments to eight out of the nine negotiators who represent a TPP country. The press was barred from the room. Roughly 25 people rose from the audience to ask questions to the trade delegates during the 90-minute briefing period. As predicted, they were not transparent about the talks, revealed little new information, and delegates also refused to make any comments based on leaked version of texts—the only text EFF and other public interest organizations have had access to. It is difficult for public stakeholders to ask accurate questions or receive any substantive answers when the content of the agreement continues to be shrouded in secrecy.
Rossini asked the USTR about its claims that the TPP’s intellectual property chapter will provide for fair use in its IP chapter, and how those public statements starkly contrast with the recent leaked TPP chapter that shows that the US delegation is in fact pushing for provisions that will restrict non-US countries from enacting fair use. Further, they neglected to comment on the fact that the leaked test has the potential to limit US fair use to the three-step test restrictions. In response, the lead negotiator for the USTR dodged the question and stated that they would not comment on issues raised by text EFF has “purportedly” received. The representative did acknowledge that fair use would be discussed during the week's meetings.
The last question of the briefing came from EFF’s International Intellectual Property Coordinator, Maira Sutton, who raised from the crowd and asked the lead negotiator how they justify pushing for ever more restrictive copyright laws in the agreement even though it has become clear, with the defeat of ACTA in Europe, that users are sick and tired of international agreements regulating their Internet through overprotective intellectual property provisions (see video below). In response, the lead negotiator for the US stated that the standard for copyright regulation in international agreements has been the US Digital Millennium Copyright Act (DMCA). They claimed that the DMCA was legislated fairly and is an effective model for copyright enforcement in the US. The representatives' answer contradicted the fact that EFF and others have been arguing for years that the DMCA is fraught with problems. Sutton responded that based upon what we saw in the recent leaked text on fair use, developing countries would not be able to implement such copyright laws as soundly given that the three-step test language restricts signatory nations from determining and establishing fair use as they see fit.
International venues such as the World Intellectual Property Organization (WIPO) already exist to address issues regarding the Internet and intellectual property in a multilateral and transparent way. The US Trade Representative's office recognizes that it could never obtain international agreement from the 182 member countries of WIPO to many of the proposals in TPP. Initiatives like the TPP allow the content industry to work within privileged channels of communication with the USTR to skirt open democratic processes that would likely prevent them from getting the IP regulations of their dreams. EFF is concerned with this forum shifting, even more in a moment that a positive agenda for exceptions and limitations is been pushed for within WIPO.
The 2008 law was originally passed to push the NSA warrantless wiretapping scandal under the rug. When the correct response was to strengthen American’s privacy protections, Congress instead severely weakened them. The FISA Amendments Act allows the NSA warrantless access to Americans communicating with a “target” overseas as long as the conversation deals with “foreign intelligence information”—a broad term that can mean virtually anything. Nor is the scope of an order narrow: one general court order from a FISA court potentially gives the NSA access to the communications of millions of people for a year. It’s the type of broad, untargeted search the Fourth Amendment was explicitly written to prevent.
Worse, we know the government has taken the powers given to them in this already unconstitutional bill and gone above and beyond them. In 2009, the New York Times reported the NSA was still collecting purely domestic communications in a “significant and systematic” way after the original bill passed in 2008. And it was revealed a couple months ago that the secret FISA court has ruled “on at least one occasion” that the government’s surveillance under the law had violated the Fourth Amendment.
Yet these facts were ignored by many of the representatives supporting the bill. As Cato Institute’s Julian Sanchez documents during the House debate, many made incorrect or false statements claiming the FISA Amendments Act only affects foreigners and not US-based citizens, that there’s no evidence Americans’ communications have been collected under the law, and that there is substantive oversight that prevents the NSA for abusing its powers.
Of course, the House could have amended the bill to make those statements true, yet they refused. They could have mandated the government release redacted versions of FISA court opinions, at least one of which we know ruled the NSA was engaged in unconstitutional surveillance. The House could also have forced NSA reveal a general estimate of how many Americans’ privacy have been violated. Or they could have required an individual warrant standard for the American side of the communications. None of these amendments were even were allowed to be voted on.
The fight to stop the warrantless wiretapping of American citizens now moves to the Senate, where just today, a bipartisan group of 13 Senators—led by Sen. Ron Wyden—sent a letter to the NSA demanding answers to a series questions about how many Americans have been illegally spied on, and how they’ll prevent it in the future. Wyden has also commendably put a hold on the bill in the Senate, and he says he will not remove it until the NSA gives the American public more information on its activities.
EFF urges the rest of the Senate to stand up for the Constitution and reject the FISA Amendments Act.
According to news reports published earlier today, the French anti-piracy law has claimed its first victim. The individual, described by TorrentFreak as a “craftsman from a small village in eastern France,” was convicted of allowing his WiFi connection to be used to download songs without obtaining prior permission from the copyright owners. Under the three-strikes law in France, known as Hadopi1 this could leave the man liable for up to a 1,500 euro fine. He could also have his Internet connection shut off while still being forced to continue to pay for the connection (the so-called “double pain”). The court found the man guilty, settling on a 150 euro fine. Thankfully, the court declined to suspend his Internet connection. While we were heartened that the individual's Internet connection was not suspended, EFF condemns the ongoing application of Hadopi, which along with similar copyright legislation threatens our rights to access and publish content freely online. This ruling serves as further evidence that such three-strikes laws must be repealed.
The man explained to the court that he himself did not download the music. Rather, his soon-to-be-ex-wife downloaded Rihanna songs. However, as Guillaume Champeau of Numerama explained to TorrentFreak, just because the man did not engage in any illegal downloading doesn’t stop the French law from punishing him: “By saying he knew she was downloading infringing content, but didn’t prevent her from doing so, he self-incriminated.”
The Hadopi law has been widely criticized as being extremely expensive and largely ineffective. The French culture minister has stated that the program costs some 12 million euros per year and employs 60 officials—yet this is the first actual conviction to take place since the law was enacted in 2009.
This same minister has also indicated in public statements intentions to defund the government agency responsible for administering the three-strikes law in France. As we stated last month, defunding the agency is not enough: the three-strikes bill itself should be repealed. This conviction further proves that, funding questions aside, having the three-strikes law on the books leaves the door open for innocent individuals to face criminal prosecution even when they don’t engage in illegal downloading. This law creates an affirmative authority to secure one’s Internet connection, creating an impetus for closed and/or carefully monitored networks—making a world of ubiquitous open wireless that much harder to achieve.
As we explain on our Global Censorship Chokepoints site, Hadopi is one of several three-strikes laws that would let rightsholders shut off the Internet connections of individuals accused of copyright infringement. These draconian laws, criticized by UN Rapporteur of Freedom of Expression, are spreading across the globe and have already resulted in numerous Internet disconnections in South Korea. EFF and a coalition of organizations worldwide are working to track the spread of this legislation and coordinate advocacy efforts to stop these laws through our Global Censorship Chokepoints site.
1.Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet