On Thursday, the fifth and final European Union Parliamentary committee voted to reject the Anti-Counterfeiting Trade Agreement (ACTA). This signifies a major blow to ACTA, but its standing in the EU still comes down to the European Parliament vote scheduled during the first week of July. After this final vote decides the agreement’s adoption in Europe, however, the future of ACTA for the rest of the signatory countries unfortunately remains cloudy.
Anti-Counterfeiting Trade Agreement is a plurilateral agreement designed to broaden and extend existing intellectual property (IP) enforcement laws to the Internet. While it was only negotiated between a few countries, it has global consequences. First of all, it will create new rules for the Internet, and second, its standards could be applied to other countries through the U.S.’s annual Special 301 process. Negotiated in secret, ACTA bypassed checks and balances of existing international IP norm-setting bodies, without any meaningful input from national parliaments, policymakers, or their citizens. Worse still, the agreement creates a new global institution, an "ACTA Committee", to oversee its implementation and interpretation that will be made up of unelected members with no legal obligation to be transparent in their proceedings. Both in substance and in process, ACTA embodies an outdated top-down, arbitrary approach to government that is out of step with modern notions of participatory democracy.
Thursday’s decision came from the most powerful of the five European Parliament committees, the International Trade Committee (INTA). It followed four other committee votes recommending the rejection of ACTA. These Committees, consisting of Members of European Parliament (MEPs) elected to these seats, are heavily influential on parliamentary positions on proposed legislations and resolutions. The current Rapporteur for ACTA, David Martin, who led the investigation on the impact and soundness of this agreement for the entire European Parliament, also found that ACTA needed to be rejected on the grounds that the agreement could undermine civil liberties and compel Internet service providers to act as “Internet police.”
While these recommendations for rejection substantially lessen the prospect of ACTA’s approval, the final step in the ratification process still lies in the hands of the MEPs. They are scheduled for a full parliamentary vote on July 3 or 4 to decide whether to adopt or reject the agreement. There were rumors preceding the INTA’s Thursday vote that it would be held in secret, at the behest of the European Commission. If the European Parliament’s final vote is held in secret, as ACTA proponents desire, the MEPs may be able to adopt this grossly unpopular agreement without facing any direct political consequences.
If ACTA were to fail in Europe, what would that mean for the rest of the eight signatory countries? Would ACTA still trudge along toward implementation in those countries? Unfortunately, the reality is that we truly don’t know. When asked about this issue last month at a State Department meeting with consumer rights groups, U.S. government representatives did not give a definitive answer. They claimed vaguely that they are “still looking into it” and that counterfeiting is a global issue that would not necessarily have to involve the EU. Sean Flynn from American University is optimistic, however:
The rejection of ACTA in the EU will likely end the prospects of the agreement going to effect anywhere. The robust activity in the EU Parliament is in stark contrast to the U.S. where the administration is not even seeking the Congressional vote the Constitution requires to ratify the agreement.
This could be true if the U.S. government still considered ACTA a “trade agreement,” which is an important classification that requires Congressional approval before it is legally binding in the U.S. However, the U.S. Trade Representative continues to call it a “sole executive agreement”, which means that the President can conclude this agreement without Congress ever reviewing or approving the agreement. In order to designate ACTA as a "sole executive agreement", the State Department had to follow certain procedural steps that consider the agreement's foreign policy implications and ensure that it was carried out “within constitutional and other legal limitations". EFF sent a Freedom of Information Act (FOIA) request to see whether the State Department had documented these Constitutionally-required steps – and agency responded that they had no such documents.
This is just as it sounds: the State Department is bound by the Constitution to follow certain steps if it wants to bypass Congress and designate ACTA as a “sole executive agreement” – but so far, it hasn’t fulfilled the legal requirements. Simply put, it is an unconstitutional power grab by an unaccountable Executive Branch agency. For now, it’s up to members of the Senate Finance Committee to protect the fundamental separation of powers embodied in the U.S. Constitution, and for the public to continue to be alert to this dangerous IP agreement that has skirted, and continues to skirt, democratic processes for international rulemaking.
It will be a huge victory for digital rights and the Internet at large if the European Parliament rejects this toxic international IP agreement. However, the EU’s rejection of ACTA does not necessarily mean it has been defeated for all other nations that have already signed on to the agreement. While this may sound discouraging, there is still hope. We cannot ignore how fundamentally undemocratic the process has been in drafting ACTA, especially given that its constitutionality in the U.S. is highly dubious. So even if the fight against ACTA continues after next week’s vote, there is still opportunity to challenge its global implementation.
For more updates on the European Parliment's vote on ACTA next week, visit:
Since late last year, independent newspaper Occupied Chicago Tribune (OCT) has been reporting and commenting on the Occupy movement.One glance at the website makes it very clear that OCT is not affiliated with the “original” Chicago Tribune—indeed, OCT is often critical of the paper and its coverage. This hasn’t stopped the Tribune from claiming OCT infringes its trademarks, and launching proceedings that could cause OCT to lose its domain name.
We’re confident a US court would recognize that the allegations are baseless, but the dispute will not take place in a formal court of law. Instead, the Tribune is using a rapid response process set up under the Uniform Domain Name Dispute Resolution Policy (UDRP), an international arbitration agreement to which all domain name registrars (and their customers) must agree. The UDRP is supposed to offer an alternative to litigation in local courts to settle trademark or cybersquatting complaints, yet UDRP arbitrators don’t have to respect “local laws”—such as fair use and the First Amendment—and proceedings tend to skew in favor of the large trademark holders that are known repeat players.
Moreover, the rapid-fire decision making has been abused by parties seeking to silence expressive content and speech. Once the complaint is sent to Occupied Chicago Tribune, they are given twenty days to read it, analyze the merits, and respond. From there, responses are filed, a panel is appointed, and a decision is rendered within 60 days. Combined, these aspects create variables that are intended to speed up the process and allow for fact-specific determinations, but can often create excessive burdens on First Amendment protected activities.
Despite these problems, there is some good news: several arbitrators have concluded that US law should apply to the analysis when both parties are located in the US. OCT filed their response last week refuting the claims and await the appointment of panelists. Let’s hope that happens here and that OCT’s legitimate free speech of Occupied Chicago Tribune is not curtailed.
Update: Six days after an arbitration panelist was appointed, the panelist ruled in favor of Occupied Chicago Tribune. In his opinion, the panelist stated that it is unreasonable to expect the two papers to be confusingly similar to people because the Occupy movement is a "well known" and distinguishable "international protest movement with a wide range of goals." Fortunately, the arbitration went well for Occupied Chicago Tribune, but the sheer fact that such a case could be brought forth, that valuable resources wasted by both parties, and that there was a potential for the transfer of OCT's domain to the Chicago Tribune are all indicative of problems within the UDRP system.
If you buy something, you can do with it—and do away with it—as you want. Right? The digital age is challenging this most basic of expectations in a few ways, and EFF and its allies are on the lookout. The Supreme Court will soon review a court decision that, if upheld, could put handcuffs on our ability to sell digital goods, or even physical goods with copyrighted logos or artwork, simply because the goods were manufactured outside the U.S. This case is important, but its also just a small piece of a larger assault on ownership rights. Over the past decade, courts and copyright owners have quietly been creating a world in which digital goods are never truly owned, but only licensed. And those licenses inevitably contain a plethora of legal restrictions on your ability to fully use the goods you "buy."
The petition was prompted by Kirtsaeng v. John Wiley & Sons, which is on its way to the Supreme Court. As we explained earlier this year, Kirtsaeng is a challenge to the "first sale" doctrine of copyright law. First sale says that once a given copy of a copyrighted work has been sold or given away, the copyright owner has no more legal control over that copy. That means the copyright owner can't ban resale, set a minimum resale price, or prohibit tinkering and modification. First sale is what makes used bookstores, libraries and video rentals possible.
In Kirtsaeng, the U.S. Court of Appeals for the Second Circuit said that first sale doesn't apply to copies made outside the United States, even if they were sold or given away legally and then imported into the U.S. Effectively, copies manufactured abroad—whether books, software, or physical goods with copyrighted labels or logos on them—could never be fully owned in the U.S. You could buy these goods, but you could never sell them or give them away without permission. Strange result, right? First sale is part of our intuitive understanding of what it means to buy and own something. If you've paid good money for a book, or a DVD, or whatever, or received it as a gift, it's fundamentally weird to be told that you can't lend it, or resell it as used, or give it away.
This decision gives copyright owners the ability to shut off markets for used copies, just by moving physical manufacturing abroad. It would also give manufacturers an incentive to move jobs out of the U.S. to create these legally handcuffed, non-resellable goods.
The defendant (and EFF) asked the Supreme Court to review the case, and the Court agreed. Now, we are asking the Obama administration to weigh in and protect the common-sense understanding of what it means to own something.
Kirtsaeng is not the only threat to owners' rights, though. Sellers of digital goods like software, e-books, movies, and music often try to opt out of the first sale doctrine using contracts - the shrink-wrap, clickwrap, and other forms of fine print agreements that we're inevitably presented with (and seldom read) whenever we buy digital goods. Often, those agreements say something like "this digital widget is licensed to you, not sold." The implication is that because the copyright owner hasn't "sold" you a copy, you can't lend it, or resell it, or give it away. Worse yet, you can't tinker with or modify it. Never mind that you paid for a permanent copy and the seller doesn't really expect that you'll ever give it back - the fine print claims to transform a sale into something else.
Unfortunately, several courts have ruled that this trick works. In Vernor v. Autodesk, Inc., the Ninth Circuit appeals court ruled that software licenses that "significantly restrict the user’s ability to transfer the software" and "impose notable use restrictions" turn what looks and feels like a purchase into something less.
Let's tell the courts and Congress that if it looks like a sale and feels like a sale, it's a sale. Let's sign the Citizens' Petition for Ownership Rights, to tell the Obama administration and the Attorney General to stand up for first sale at the Supreme Court. And beyond that, digital goods providers should not be able to opt out of first sale using magic words in the fine print of user agreements. Watch this space for more info on ownership rights and how you can help defend them!
In that particular case, the two young women—both of Palestinian origin—complied with officials’ requests but were nonetheless detained overnight before being deported. In another, similar case, a U.S. citizen who refused access to her email was told she was probably hiding something and was refused entry to the country. Israeli security (Shin Bet) told a reporter that “the actions taken by the agents during questioning were within the organization's authority according to Israeli law.”
Not unlike travelers to the U.S., travelers to Israel face serious privacy challenges at the border. The government generally has broad authority to search through your personal possessions, including your laptop, for any reason at all. When you cross the border to Israel, the Israeli government retains the authority to question you and examine your belongings, which it interprets as also allowing it to go through your electronic devices and computer files. More recently, authorities have also been known to demand user passwords to online accounts.
As we state in our guide to U.S. border searches:
For doctors, lawyers, and many business professionals, these border searches can compromise the privacy of sensitive professional information, including trade secrets, attorney-client and doctor-patient communications, research and business strategies, some of which a traveler has legal and contractual obligations to protect. For the rest of us, searches that can reach our personal correspondence, health information, and financial records are reasonably viewed as an affront to privacy and dignity and inconsistent with the values of a free society.
EFF recently asked Jonathan Klinger, an Israeli attorney, for his thoughts on the law and government practices that apply to searches at the Israeli border, and here is his analysis.
The Situation at the Israeli Border
At the Israeli border, there are some limited legal protections against the search itself. Based on a collection of experiences, however, it seems that mentioning these protections to border officials can be considered antagonism, and can limit your ability to enter Israel. Those concerned about the security and privacy of the information on their devices at the border should therefore use technological measures in an effort to protect their data. They can also choose not to take private data across the border with them at all, and then use technical measures to retrieve it from abroad.
There is, however, little to prevent a scenario in which one’s email is searched, as refusal to allow the search may result in deportation. With that in mind, concerned travelers should think ahead and review their online accounts before traveling.
Why Can My Devices Be Searched at the Border?
Article 7 of Israel's Basic Statute of Human Dignity and Freedom1 states that every person is entitled to his privacy, and that his property may not be searched, apart from where it is required under legal authority. This generally means that the government has to show probable cause that a crime has been committed and get a warrant before it can search a location or item in which you have a reasonable expectation of privacy; moreover, a recent Supreme Court ruling stated that there is no such thing called consensual search,2 and where there is no probable cause, the state cannot rely on a person's consent in order to search in his possessions. But searches at places where people enter or leave Israel are subject to different statutes. The two applicable statutes are the Aviation Act (Security in Civil Aviation), 19773and the General Security Service Act, 20024; the two acts altogether provide two different state authorities the right to search on a person's body and in his property. However, they do not refer to computer searches at all.
The Aviation Act allows security personnel, police officers, soldiers and members of the civil defense forces to search at border crossings if “the search is required, in [the officer's] opinion, to keep the public's safety or if he suspects that the person unlawfully carries weapons or explosives, or that the vehicle, the plane or the goods has weapons or explosives.”
Similarly, the General Security Service Act states that in order to prevent unlawful activities, secure persons or any other activity that the government authorized with the approval of the Knesset committee for the Shin Bet5 to perform, any employee of the Shin Bet (the service) may search a person's body, property, baggage or other goods and collect information, as long as the person is present.
Only in extreme cases, where there is an object that needs to be seized for a vital role in the Shin Bet's activity, can the Shin Bet also search without a person's presence.
However, nothing in these acts authorizes computer searches. Recently, the Israeli Justice office proposed a new anti-terror bill,6 which is yet to pass through the legislative process. This Anti-Terror bill does request to correct the current General Security Service act to specifically state that computers may be searched.
How the Government Searches Devices at the Border
There are three government agencies primarily responsible for inspecting travelers and items entering Israel: the General Security Service (Shin Bet), The Customs Authority and the Immigration authority.
The law gives the Shin Bet and other officials a great deal of discretion to inspect items coming into the country. There is no official policy published in respect to border search of electronic devices and accounts. And when recently requested to comment, the Shin Bet stated that its acts are “according to law.”
Keep in mind that the Shin Bet can keep your computer or copies of your data for “the time required for the seizure.” There is no specific consideration regarding forensic practices and the ways that your computer files may be copied during the seizure. This is unlike the Israeli Criminal Procedure Order (Arrest and Search), 1969,7 which deals specifically with the forensic procedures of copying computer materials and requires two witnesses for any file duplication.
The Israeli Customs Authority, under Article 184,8 allows any customs official to search every person for contraband or drugs given probable cause. Moreover, the customs official may also request urine, blood or saliva samples and request persons to undress. However, nothing in the law allows them to search through computer materials.
In short, border agents have a lot of latitude to search electronic devices at the border or take them elsewhere for further inspection for a short period of time, whether or not they suspect a traveler has done anything wrong.
We do not have the exact numbers or methods of how such searches are handled, and the Shin Bet is exempt from the Israeli Freedom of Information Act.9;However, the frequency of technology-oriented searches at the border may increase in the future. Researchers and vendors are creating tools to make forensic analysis faster and more effective, and, over time, forensic analysis will require less skill and training. Law enforcement agencies may be tempted to use these tools more often and in more circumstances as their use becomes easier.
The decision faced by dictators to shut off the Internet (and risk economic loss) or keep their citizens online (and risk an Internet-assisted revolt) has been referred to by some as the "dictator's dilemma." In the case of Sudan, where anti-austerity protests have been raging for five days and calls to overthrow the regime have been reported, the dictator's decision is made a bit easier by the fact that only about one in ten citizens has access to the Internet.1
Thus far, there is only speculation as to whether or not the Sudanese government has shut down--or might shut down--communications networks. As reported by Global Voices, Sudanese activists and journalists in the country have heard rumors of an impending shutdown. In preparation, Twitter users in the country have been sharing the numbers for Speak to Tweet, the service that was created during the Egyptian uprising in January 2011 that allowed individuals on the ground to call a number and leave a message which was then tweeted to the public.
Also bolstering the rumors is the fact that authorities have arrested several journalists and activists over the past few days. Among those that have been detained are Maha El-Sanosi, a blogger with Global Voices (who has since been released) and a citizen journalist named Usamah who has been active on Twitter for years under the name @Simsimt. Usamah was arrested shortly after an appearance on the television program Al Jazeera Stream and his whereabouts remain unknown.
In addition to rumors of an Internet shutdown, there is also speculation that authorities are using technology to track activists and journalists. In 2011, authorities reportedly set up a Facebook page calling for protest, then used it to entrap and detain activists. There have also been reports over the past year of authorities demanding--or torturing for--the Facebook and email passwords of detainees.
As the protests continue, citizen journalists are using social media to disseminate photos, videos and news from the ground.
EFF will be keeping a close eye on developments; in the meantime, we urge activists and journalists to take security precautions when using digital communications tools. Our Surveillance Self-Defense International report provides tips on how to use technology defensively to protect oneself from government surveillance.
1. According to the most recent data from the International Telecommunications Union, Sudan's Internet penetration rate was 10.8% in 2010.
In recent weeks, the corner of the blogosphere that concerns itself with Internet-related policy has come alive with posts, comments and op-eds addressing the theory that a little-known United Nations telecom agency, the International Telecommunication Union (ITU), is gearing up for an Internet power grab. Concerns about this possibility spurred a U.S. Congressional hearing last month, and across the Atlantic, a June 19 workshop hosted at the European Parliament in Brussels provided a forum to sort out “Challenges to the Internet Governance Regime” as they relate to the ITU.
The UN agency, which is made up of 193 member states and specializes in information and communication technologies, is in the midst of preparing for a December conference where it will re-negotiate an important treaty establishing the International Telecommunication Regulations (ITRs). These regulations lay the ground rules for how big telecoms interact with one another in an international context, setting up systems for things like revenue-sharing, and have historically only dealt with telephony and never reached into the realm of Internet architecture. At Tuesday’s workshop, representatives from the European Commission, civil society organizations, Google, and other organizations were on hand to share their insights about the how this treaty revision may affect Internet governance.
William Drake, an International Fellow of the University of Zurich and expert on Internet policy, challenged the framework that has been debated so far. “It isn’t in fact the case that the UN will send in black helicopters to take over the Internet,” he assured participants. Waving a slim green booklet totaling fewer than 30 pages, he declared, “This is what all the fuss is about.” It was the latest compilation of the ITRs, the telecom rules that ITU member states last agreed upon in 1988 – long before mobile devices with Internet connectivity revolutionized the telecommunications industry.
While Drake said he thought some discussions around the revisions could be discounted because they seemed “driven by various political agendas,” he was nevertheless very clear that he viewed certain proposals as highly problematic since they would indeed result in “a restrictive effect on the Internet” if approved.
Drake’s analysis of the situation was that it has less to do with a hostile takeover and more to do with the financial upheaval that has impacted the telecommunications industry in the last couple decades. The Internet has turned the traditional business model of major phone companies on its head. Big telecoms are seeking to recover their losses, he argued, and they’re trying to redraw the lines around who and what would be regulated by the ITRs.
It reflects “an effort by telecom companies in many parts of the world to leverage a multinational institution to recover market shares that they had lost in the face of liberalization,” Drake suggested. “And in that context … many other issues are being added to the pot: cybersecurity, censorship and so forth.” As preparations for the conference move forward, many countries have tossed in their pet projects “to see what will stick,” in his view.
Some ideas, such as proposed cybersecurity provisions put forward by Russia, could reinforce state surveillance power, Drake said. Taken as a whole, he added, the proposed regulatory revisions would essentially subject “everybody involved in providing Internet services” to the ITRs.
Andrea Glorioso, an Italian Policy Officer with the European Commission, touched on the geopolitical context out of which these proposals have emerged, acknowledging that some proposals are being advanced by nations that are unhappy with the status quo.
“We do believe that the Internet has become so essential on the global stage that we need to be thinking seriously about the geopolitical balance that this entails,” he said. “And what I’m trying to say here is that even though we are broadly fine with the current setup of global Internet governance, we also believe that we need to engage in a dialogue with those parts of the world that are not fine with the current setup. … At the end of the day, when we go to a discussion where numbers are counted, we need to count the numbers. What we are trying to achieve here is dialogue.”
Meanwhile, comments from members of civil society organizations also shed some light on how European stakeholders are framing the debate. Joe McNamee, EU Advocacy Coordinator of European Digital Rights (EDRi), aired criticism both of the ITU and the U.S. Government, which has positioned itself as an opponent to any ITU efforts to subject the Internet to new regulatory controls.
The ITU, McNamee said, “is fundamentally unsuitable for the regulation of the Internet. It’s slow-moving, it’s closed, and its high corporate membership fees can only be seen as a way of selling influence in the organization. It’s so closed that it’s not even possible for citizens to gain access to their documents without paying for them,” he added, giving a nod to civil society organizations’ public demand several weeks ago for greater ITU transparency.
The U.S. has positioned itself against expanded ITU powers over the Internet, but McNamee also doled out a harsh critique of the U.S.’s own Internet-related policy proposals, invoking the now-defunct Stop Online Piracy Act (SOPA) which was hotly debated by Congress earlier this year.
McNamee seemed convinced that the bureaucratic ITU would do its best to subject Internet-related entities to the ITRs as a kind of power grab. Paraphrasing “a wise person,” he said, “old bureaucracies don’t die, they file themselves in a different folder. Their next folder is the Internet, unfortunately.”
The debate surrounding the ITU and its upcoming renegotiation of the ITRs continues on. While Drake and McNamee clearly believe a problem for Internet freedom is looms on the horizon with the negotiation of the ITRs, Milton Mueller of the Internet Governance Project noted in this blog that as long as the ITU boundaries are kept within international telecommunication services, the worst consequences could be avoided.
EFF agrees. If we don’t maintain this distinction, we face the prospect of bringing an intergovernmental organization into Internet governance. ITU's mandate should be kept as it is: International telecommunications service. The ITRs' definitions should not be amended to include Internet services or cyber-security as part of international telecommunications. It’s also important to ensure that any changes made to the way telecom companies interconnect don’t empower monopolistic companies to act as gatekeepers to Internet services.
These issues will culminate at the treaty-writing forum in December, when the ITU’s World Conference on International Telecommunications (WCIT-12) is held in Dubai. The ITRs were last updated in 1988, so any problematic provisions that make their way into the treaty renegotiation this winter will stay with us for a very long time, and could shape things for decades to come. The highly bureaucratic ITU is subject to political influence, and the agenda of an industry that is worried about preserving its bottom line. In this context, it is negotiating proposals without transparency and behind closed doors. Therefore, civil society organizations must remain alert, and push back against any measures that could have a restrictive effect on the Internet. EFF will continue monitoring this issue, particularly as it pertains to cybersecurity.
Yesterday, a House Committee grabbed national attention by voting to approve a recommendation that Attorney General Eric Holder be held in contempt of Congress. The vote stemmed from the Department of Justice’s repeated refusals to release documents concerning the handling of an investigation known as “Fast and Furious” – a botched DOJ law enforcement operation aimed at slowing the flow of illegal weapons from the United States to drug cartels in Mexico. In an effort to head off a contempt vote, President Obama asserted “executive privilege” on Wednesday in an attempt to legitimize the DOJ’s refusal to disclose the requested documents. Multiplereportsnoted that this was the first time the President had asserted the privilege since taking office.
If only that were true of the entire executive branch. Unfortunately, the DOJ asserts the privilege in EFF’s FOIA cases all the time. So Congress, we know what you’re going through, we feel your pain, and we’ve got a way you can fix the problem.
If Congress really wants to send a message to the DOJ, it should forget about a contempt vote and focus on a long-term solution: cabining the Executive’s ability to assert the privilege in the first place.
In general, evidentiary privileges protect the compelled disclosure of information in formal government proceedings. Some of the more familiar privileges are the attorney-client privilege, the privilege against self-incrimination, and the doctor-patient privilege. The executive branch, too, has its own set of privileges, which come in a few different varieties, all with differing legal foundations and scope. For example, the presidential communications privilege (sometimes referred to, confusingly, as the executive privilege) is constitutionally grounded and, when invoked, protects any document or communication between, or generated for, the President and his closest advisors. Another type of privilege available to the Executive, the state secrets privilege, is not constitutionally grounded but, instead, has its roots in the common law. The state secrets privilege can only be used to withhold information concerning foreign relations and military affairs.
The privilege asserted by the President on Wednesday is the deliberative process privilege (pdf), a common law-based privilege that, properly applied, is applicable to a narrower and more specific type of record than the presidential communications privilege, yet is available to a larger swath of the executive branch. The deliberative process privilege only protects internal, executive branch communications created in the course of government policy formation. The rationale behind the privilege is that, if executive officials are not allowed to keep some internal deliberations secret, officials will be inhibited from freely expressing ideas and opinions; and, as a result of this inhibition, the process of policy formulation will be less robust and resulting government policies will suffer.
In the abstract, the privilege makes sense. However, in practice – and in EFF’s FOIA cases in particular – the DOJ’s assertion of the privilege rarely aligns with the underlying rationale.
For example, in our FOIA lawsuit over a secret DOJ Office of Legal Counsel legal opinion setting forth the FBI's authority under federal surveillance law, the DOJ asserted the deliberative process privilege (along with other FOIA exemptions) to withhold the binding opinion in its entirety. The DOJ invoked the privilege despite the fact that the memo was a final version (as opposed to a draft), despite the fact that the opinion had been distributed outside DOJ to other government agencies and to members of Congress and their staffs; and despite the fact that the memo shapes and interprets the privacy rights of citizens under federal law. In effect, the DOJ relied on the privilege, at least in part, to hide a body of secret surveillance law from EFF and the American public.
In another case involving the deliberative process privilege, EFF sued to obtain records related to the High Level Contact Group – a joint EU and U.S. working group tasked with negotiating a set of common principles on the transnational sharing of citizens’ personal information for law enforcement purposes. EFF sought all DOJ records that reflected the negotiating positions of the EU and the U.S. – positions which were necessarily disclosed outside the DOJ (to officials of foreign governments, no less) simply by virtue of the nature of bilateral negotiations. Again, the DOJ claimed the deliberative process privilege protected much of the requested information. According to the DOJ’s interpretation of the privilege, while disclosure of the information to foreign government officials was no problem at all, disclosure to EFF and the American public would cause grave harm to the agency’s deliberative process. These types of assertions of the privilege turn its legitimate rationale on its head, only serving to obstruct the public’s ability to know what its government is up to.
At its essence, nearly every FOIA case EFF litigates is identical to the battle playing out right now between Congress and the Executive. Congress has requested documents to shed light on government practices and to keep the executive branch accountable to the public. Instead of being forthcoming and transparent, the Executive has instead chosen to rely on a tenuous interpretation of the deliberative process privilege to stymie the process and obstruct the public’s ability to hold executive officials truly accountable.
But, at least in the FOIA context, Congress can fix the problem. Instead of wasting time with a symbolic (and, ultimately, pyrrhic) contempt vote, Congress should act to change the deliberative process privilege through statute. Unlike the presidential communications privilege, the deliberative process privilege is not constitutionally based, so a law cabining the Executive’s invocation of the privilege is less likely to create constitutional separation-of-powers problems. So, for example, Congress could amend FOIA to require a Court – whenever the deliberative process privilege is invoked to withhold information – to balance the public interest in disclosure of the information against the magnitude of the potential harm to the executive agency’s deliberations. This type of balancing is already used in other FOIA exemptions and would go a long way towards preventing some of the more egregious invocations of the privilege. A balancing test would also provide an agency enough space to rely on the privilege when it is being legitimately invoked, yet would prevent agencies, in case after case, from simply repeating the same generic and speculative assertions of harm to agency deliberations.
So Congress, if you’re serious about sending a message to the Attorney General and the DOJ, forget about the contempt vote. Instead, hit them where it counts: their FOIA exemptions.
Two days ago, EFF launched Defend Innovation, outlining seven proposals to address the egregious abuses of software patents. Since we launched, we’ve already received an amazing response (the initial traffic overwhelmed our servers) and now we’re watching as more and more people sign the petition and leave comments. This campaign isn’t just about our proposals – it’s also about creating a space for the tech community, inventors, academics, and others to express their concerns and suggestions for dealing with the patent system. The comments we collect will be the basis for a whitepaper we’ll use to educate lawmakers and the public about the problems with the software patent system – and how we can address them.
Here is a sample of what we've seen so far:
Many people are worried about patent trolls, or corporate entities that buy up patents with no intention of ever using them for anything other than collecting rents and settlements. We've written about the problems patent trolls pose to innovation before.
Steven Baker, a patent owner in Austin, TX, comments:
The real evils start when patents can be bought and sold by companies who have no interest in using the technology - have no intention of ever making a product - and exist only to game the legal system for profit. This kind of behavior is abusive and does absolutely nothing to encourage innovation or to boost the nations bottom-line.
Other people voice their support for our second proposal, which calls for patent trolls to pay the fees and costs of those people they wrongfully sue for infringement. Nathan Hourt, a software developer at Rensselaer Polytechnic Institute, suggests that such measures should go even further:
Patent trolls ought not get away with breaking up a target's workflow, intimidating them, wasting their time, and potentially damaging their public image for nothing but some paltry legal fees that didn't stop them from suing in the first place. When the plaintiff's claims in a patent suit are found to be invalid, the plaintiff should be required to pay to the defendant at least triple the damages they were seeking. This would serve to offset the harm done to the defendant, as well as even further reducing the risk of patent trolling. Another benefit is that it would encourage plaintiffs to think twice about whether the damages they seek in a patent suit are reasonable.
Jesse Carlaftes, a senior systems engineer in Tuscon, points out one of the major issues with the software patent process - that those approving the patents often do not have the specialized knowledge needed to make an accurate judgment about the validity of the patent:
Software patents generally cover ideas, and not implementations as currently defined in patent law. Patent Approvers are not well versed enough in Comp Science to determine novelty of an idea. Too many common ideas are patented with the simple modifier 'in software/internet/phone/etc'
Christopher Perry, a computer programmer in Okemos, Minnesota, draws attention in his comment to the challenges the current software patent regime present for small businesses:
The current patent system makes it nearly impossible for small businesses to take off. In order to mitigate risk, each developer realistically needs a team of patent lawyers in support to let the developer know that the idea that just popped into their head is covered by a patent already. The patent waters are unnavigable for an individual and small business and has created a system where established businesses can crush new competition, not through the act of competing, but by legally prohibiting the competing endeavor to event start….
This kind of feedback is incredibly valuable to EFF on our fact-finding mission to find out how the tech community feels about software patents and what Congress (and others) need to do to address these problems. Please join the conversation. Visit defendinnovation.org, review the proposals and comments, and add your voice to the growing movement that is seeking real solutions to the problems arising from software patents.