Last week, the New York Timespublished twoimportant op-eds highlighting how the National Security Agency (NSA) has retained expansive powers to warrantlessly wiretap Americans after Congress passed the FISA Amendments Act in 2008. And unlike in 2005—when the exposure of the NSA’s warrantless wiretapping program provoked widespread outrage—Congress is now all but ignoring ample evidence of wrongdoing, as it debates renewing the FISA Amendments Act before it expires at the end of this year.
The first op-ed published by the Times,written by longtime national security reporter Shane Harris, recounts the controversy over the Orwellian-sounding “Total Information Awareness” (TIA) spying program proposed by former national security advisor John Poindexter in the aftermath of 9/11. The TIA aimed to “scan the world’s electronic information — including phone calls, e-mails and financial and travel records” and was widely condemned for allowing wholesale violations of Americans’ privacy. Congress, which had been more than willing to weaken privacy protections in the name of national security in other areas, voted to dismantle the program in 2003, acknowledging it went too far.
Yet, as Harris describes, "Total Information Awareness" is alive and well within the NSA. The NSA has adopted nearly all of the TIA’s features into its warrantless wiretapping program, except for two: “an application that would ‘anonymize’ data, so that information could be linked to a person only through a court order; and a set of audit logs, which would keep track of whether innocent Americans’ communications were getting caught in a digital net.”
In other words, the NSA is currently operating the same program Congress explicitly rejected over privacy concerns, with even fewer privacy protections than the original program called for.
Of course, there’s long been ample evidence the NSA has been unlawfully collecting Americans' communications since the passage of the FISA Amendments Act. As the New York Times reported in 2009, the NSA was still collecting purely domestic communications of Americans' in a "significant and systemic" way. And just last month, the NSA officially admitted for the first time that the secret FISA court ruled their surveillance had violated the Fourth Amendment of the Constitution “on at least one occasion”. As we said at the time, given the expansive power the FISA Amendment Act gives the government, one court order under the FAA could potentially violate millions of Americans’ privacy.
Despite this admission, the NSA has so far refused to give even a general estimate of the number of Americans whose communications have been surveilled under the wiretapping program (ironically claiming that providing an estimate would violate the same Americans’ privacy). And even worse, Congress has so far refused to add privacy safeguards to the FISA Amendments Act or force the NSA to become more transparent.
It’s important to remember that while the NSA disputes the extent to which they have unconstitutionally spied on Americans, there is no dispute that they retain the capabilities to collect Americans’ communications without warrants. As Cato Institute’s Julian Sanchez documented last week, the Justice Department’s own top intelligence lawyer from 2009-2011, David S. Kris, says as much in a just-published treatise on national security law he co-wrote with J. Douglas Wilson.
You can read the relevant section of the treatise here, but Sanchez aptly sums up the DOJ’s interpretation of the FISA Amendments Act: “All the law requires is that they not intentionally record the American’s calls and e-mails when they are are known in advance to be to or from another American.” And as Kris and Wilson write in their treatise, this restriction “is imperfect because location is difficult to determine in the modern world of communications, and the restriction applies only when the government ‘knows’ that the communication is domestic.” As a recent Wired investigation explained, the NSA’s tapping gear is installed in locations that will inevitably lead to large portions of domestic communications getting sucked up by the NSA.
Given the alleged loophole that allows the NSA to collect Americans’ communications without a warrant, the credible reports that the NSA has even unconstitutionally exceeded that authority, and the fact that the FISA court does not review whether communications of Americans are actually being collected, Congress has a responsibility to act now and not wait for the resolution of lengthy judicial cases. The FISA Amendment Act needs to be overhauled or voted down; Americans’ constitutional rights hang in the balance.
Recently, Senator Jon Kyl (R-AZ) introduced a new federal anti-SLAPP bill called the Free Speech Act of 2012. While the bill doesn’t go nearly far enough, EFF is encouraged to see that Congress is showing renewed interested in passing legislation to prevent so called “Strategic Lawsuits Against Public Participation” (SLAPP) that attempt to censor and chill First Amendment protected speech.
Anti-SLAPP laws are intended to stop defamation lawsuits—frequently filed by plaintiffs with deep pockets—that have little to no chance of winning, yet are aimed at pressuring the target into settling for fear of expensive litigation. Generally, the laws allow defendants who are engaged in clearly protected speech to dismiss these lawsuits early on—and in some cases, force the plaintiff to pay legal costs if the suit is frivolous—hopefully discouraging litigants from ever filing them in the first place.
Under the measure, the media could file a motion to dismiss a lawsuit that “arises in whole or in part” from reporting “on a matter of public concern or that relates to a public official or figure.”
While this provision sounds like a welcome addition to the law, unfortunately it is written far too narrowly. The provision only applies to “a representative of the news media,” and may not include bloggers, citizens journalists or other commentators on the Internet who need this protection the most.
The goal of the bil, however, is an important one, as Sen. Kyl stated during the bill's introduction. “The Free Press Act of 2012 responds to a number of recent incidents in which defamation lawsuits have been used to try to squelch criticism of particular groups and individuals,” he said.
Indeed, there have been a number of incidents in recent months where wealthy individuals have tried to combat criticism by filing frivolous lawsuits. For example, EFF successfully defended Matthew Inman, the founder of the popular webcomic The Oatmeal, after he was sued by the website FunnyJunk and lawyer Charles Carreon over baseless allegations that critical webcomics were defamatory.
Carreon’s suit could have been promptly dismissed if a strong federal anti-SLAPP statute existed. But because of Kyl’s bill’s narrow focus, Inman may not have enjoyed its protections because he is not part of the “news media.” Fortunately, Inman could have potentially used California’s anti-SLAPP statute to protect himself if Carreon had not dropped the case.
Others, however, aren’t so lucky. Currently, only 28 states have anti-SLAPP laws—some weaker than others—leaving many with little or no protection. For example, Idaho-based Jody May-Chang, an independent LGBT blogger, was threatened by billionaire Frank Vandersloot over a four-year-old blog post that relied on publicly available information. May-Chang bravely stood up to Vandersloot and refused to take her post down, but multiple bloggers in Idaho before her were forced into silence after similar threats from Vandersloot. It’s unclear whether Kyl’s new bill would have protected these Idaho bloggers either.
Sen. Kyl’s legislation clearly does not go far enough, but it is a starting point for robust, bipartisan legislation that would protect bloggers from intimidation. It also includes a broader special motion to quash subpoenas for personally identifying information if the statements in questions relate to a matter of public concern or to a public official or public figure, which would substantively strengthen the rights of anonymous or pseudonymous speakers online.
Another anti-SLAPP bill with stonger protections being discussed in Congress right now is the PETITION Act. Go here to EFF’s Action Center to send your representative a message encouraging them to support anti-SLAPP legislation, such as the PETITION Act.
The draft chapter of the Trans-Pacific Partnership Agreement on Intellectual Property—as of its current leaked version [PDF], article 16—insists that signatories provide legal incentives for Internet Service Providers (ISPs) to privately enforce copyright protection rules. The TPP wants service providers to undertake the financial and administrative burdens of becoming copyright cops, serving a copyright maximalist agenda while disregarding the consequences for Internet freedom and innovation.
TPP article 16.3 mandates a system of ISP liability that goes beyond the US Digital Millennium Copyright Act (DMCA) standards and US case law. In sum, the TPP pushes a framework beyond ACTA and possibly the spirit of the DMCA, since it opens the doors for:
Three-strikes policies and laws that require Internet intermediaries to terminate their users’ Internet access on repeat allegations of copyright infringement
Requirements for Internet intermediaries to filter all Internet communications for potentially copyright-infringing material
ISP obligations to block access to websites that allegedly infringe or facilitate copyright infringement
Efforts to force intermediaries to disclose the identities of their customers to IP rightsholders on an allegation of copyright infringement.
The TPP Puts Your Rights at Risk
Service providers are the conduits of free expression. By enabling free or low-cost platforms that enable anyone to reach an audience of millions, ISPs have democratized media and enabled innovative ideas to spread quickly—without the gatekeepers of traditional media.
Private ISP enforcement of copyright poses a serious threat to free speech on the Internet, because it makes offering open platforms for user-generated content economically untenable. For example, on an ad-supported site, the costs of reviewing each post will generally exceed the pennies of revenue one might get from ads. Even obvious fair uses could become too risky to host, leading to an Internet with only cautious and conservative content.
Moreover, the TPP insists upon notice and takedown regimes at the price of a free and open Internet. Expression is often time-sensitive: reacting to recent news or promoting a candidate for election. Online takedown requirements open the door to abuse, allowing the claim of copyright to trump the judicial system, and get immediate removal, before the merits are assessed. Put back procedures can mitigate the harm, but even a few days of downtime can strike a serious blow to freedom of expression.
A Sinister Side-Letter to Require Strict Takedown Procedures
If the copyright maximalists have their way, the TPP will include a “side-letter,” an agreement annexed to the TPP to bind the countries to strict procedures enabling copyright owners to insist material are removed from the Internet. This strict notice-and-takedown regime is not new—in 2004, Chile rejected the same proposal in its bilateral trade agreement with the United States. Without the shackles of the proposed requirements, Chile then implemented a much more balanced takedown procedure in its 2010 Copyright Law, which provides greater protection to Internet users’ expression and privacy than the DMCA’s copyright safe harbor regime.
These strict rules are not only bad public policy, but have the potential to impinge on national sovereignty by imposing, through a non-transparent process, significant changes in existing national law, such as the Chile judicial takedown system or the Canadian system where ISPs provide a conduit for notices, but not extra-judicial takedowns. Where a country has implemented a system more balanced than the DMCA, the TPP should not overrule popular legislative process or bring a one-size fits all approach for substantive and procedural rules.
TPP’s Safe Guards Are Not Safe
By introducing a series of ISP liability safeguards, the TPP may promote the actual extension of ISPs' secondary liability, something the entertainment and publishing industries dearly want. In a 2011 testimonial on whether Malaysia should join the TPP, the International Intellectual Property Alliance (IIPA) made clear that approach [PDF], seeking to bring new intermediary liability along with a strictly limited safe harbor.
Intermediary liability is not universally recognized. The Office of the US Trade Representative—the agency leading the TPP negotiations—has recognized that creating limitations on liability encourages countries to adopt intermediary liability in the first instance. Indeed, if countries want to get off of the US intellectual property blacklist (the Special 301 report: a review of other countries’ intellectual property laws and enforcement standards), the USTR suggests that adopting the TPP can solve their problems. From the 11 negotiating TPP Countries, 5 are in the 301-2012 list [PDF] (Chile, Brunei, Peru, Mexico, Vietnam).
The UN and the European Court of Justice Agree that Human Rights Are at Stake
We’re not the only ones who see this as a threat to Internet freedom. Both the UN Special Rapporteur on Freedom of Opinion and Expression and the European Court of Justice agree. In addition, Article 19 of the Universal Declaration of Human Rights should still be the guiding light for TPP. It declares:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
To allow people to hold opinions without interference, and to seek, receive and impart information, it is critical to have a policy infrastructure that does not impose liability on Internet intermediaries. By forcing intermediaries to become much more than service providers, many of these proposals attempt to make Internet intermediaries the sole arbiter and enforcer of the law instead of courts and judges. ISPs are not well equipped to make these decisions, and these proposals lack the due process rights that are so critical in the courtroom.
To the extent that governments wish to deputize Internet Intermediaries to enforce public policy objectives, the intermediaries must abide by the due process standards that apply to governments. At a minimum, this includes transparency, accountability, accuracy, precisely targeted measures that don’t cause collateral damage, a timely and affordable means of redress, and fairness and proportionality of cost distribution. The most appropriate role for Internet intermediaries is limited to forwarding notices of alleged infringement to their customers, and then allowing the judicial system to determine the subsequent steps. This includes protecting the identity of the user.
Through the support of people like you, we've beaten back SOPA, PIPA and ACTA. We can do the same to the TPP, by shining a light on the copyright maximalists agenda, by explaining the implications of these back room deals, and—with your support—we can prevent the slow erosion of liberty on the Internet.
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:
South Korea’s renewed crackdown on free speech on the Internet has been in the news lately. In a recent article, the New York Times highlighted the democratic, Internet-savvy country’s “vigilant army of online censors” which it says would not be out of place in China. The report specifically calls out censorship of statements that are seen as critical of the government or disrespectful of the President, including a man whose Twitter account was blocked because he called President Lee Myung-bak a curse word and another who had his account blocked for using a pseudonym that translated to “Lee Myung-bak bastard.” Korea’s censorship board is empowered to act with impunity, deleting content without ever notifying the author. And regulators have only grown more zealous, removing more than 53,000 Internet posts in 2011, up from 15,000 in 2008.
The report also describes Korea’s criminal defamation law as a key tool in stifling online dissent. United Nations special rapporteur on freedom of expression, Frank LaRue described his concerns in a 2011 report, saying “Many criminal defamation suits are brought for statements that are true and are in the public interest.”
EFF has long been troubled by the rising tide of Internet censorship in South Korea. This Week In Internet Censorship has oftenfeatured South Korean as a bad actor, and we are glad to see the news media catching on.
Burmese Government Abolishes Pre-Censorship, Still Has Plenty of Censorship Left Over
This week, the Burmese government announced to the editors of weekly journals that they would no longer be required to submit their articles to the state censorship board before publication. While this concession might count as a small step towards media freedom in the country whose military junta has recently eased its grip on power, media censorship is still very much alive in Burma, on the Internet and elsewhere.
The censorship board will continue operations, monitoring the news in all its forms, and the other regulatory frameworks remain in place. Key to the suppression of freedom of expression on the Internet is the 2004 Electronic Transactions Act, which makes it “unlawful to use electronic transactions technology to send or receive information relating to state security.” In 2008, closed courts used this law to deliver prison sentences to dissident bloggers and activists, including prominent blogger Nay Phone Blatt, who received a sentence totaling 20 years. The OpenNet Initiative reports that “the Electronic Transactions Law also constituted part of the 59-year sentence handed to Maung Thura, comedian, film director, and blogger, who was convicted for circulating his footage of relief work after Cyclone Nargis on DVD and the Internet, as well for criticizing government aid efforts in interviews with overseas media.”
EFF joins the Committee to Protect Journalists in calling for the abolition of the censorship board as a first step towards meaningful media reform in Burma. There is still a long way to go.
Malaysian Government Vows to Review Internet Censorship Law in Response to Blackout Protest
On August 14th, thousands of Malaysians participated in a protest inspired by last year’s blackout campaign against SOPA/PIPA. The threat to Internet freedom that had Malaysians blacking out their website to express their opposition was a recent amendment to the Evidence Act 1950, known as S114A, which they say poses a grave threat to freedom of expression on the Internet.
S114A, titled “Presumption of Fact in Publication”, holds (1) those who own, administrate, or edit websites open to public contributors, such as online forums or blogs; (2) those who provide webhosting services or Internet access; and (3) those who own the computer or mobile device used to publish content online, will be accountable for content published through their services, on their sites, or ‘in their name'. Furthermore, those alleged to have posted illicit or defamatory content are assumed to be guilty until proven innocent, turning the ‘innocent until proven guilty' logic of judicial due process on its head.
The protest prompted Malaysian Prime Minister Mohd Najib Tun Razak to tweet:
I have asked Cabinet to discuss section 114A of the Evidence Act 1950. Whatever we do we must put people first .
Gerakan Deputy President Dato’ Chang Ko Youn has also announced that he supports the government’s move to review S114A, though he also appeared to urge self-censorship, stating that he “also hopes that the netizens will be more self-restraint and responsible while publishing comments or sharing information through the cyberspace… Cyberspace is not a wild wild West. One must be responsible for what he or she says and writes.”
EFF and Craig Newmark's team at craigconnects have created an infographic about Section 230 of the controversial Communications Decency Act (CDA) of 1996. Though many provisions of the CDA was rightfully found to be unconstitutional, Section 230 remained, allowing the Internet to flourish while fostering free speech.
CDA 230 provides websites, blogs, and social networks that host speech with protection against a range of laws that might otherwise hold them legally responsible for what their users say and do.
CDA 230 is a fundamental shield that allows Yelp to host reviews, Craigslist to host classified ads, and Facebook and Twitter to host users' posts. Without it, websites and Internet Service Providers would be costlier, operate with less efficiency, and be motivated to censor.
Check out why CDA 230 is so important in the infographic below:
Information, media, and educational professionals, as well as government executives and members of the public met at the International Conference Media and Information Literacy for Knowledge Societies in Moscow, Russia last June. UNESCO, the International Federation of Library Associations and Institutions (IFLA), and other state and non-state agencies held this conference in order to raise awareness of the significance, scale, and topicality of media and information literacy advocacy.
This document was produced through a collaborative process involving participants from 40 countries:
" The changing media landscape and the rapid growth in information are affecting individuals and societies now more than ever. In order to succeed in this environment, and to resolve problems effectively in every facet of life, individuals, communities and nations should obtain a critical set of competencies to be able to seek, critically evaluate and create new information and knowledge in different forms using existing tools, and share these through various channels. This literacy creates new opportunities to improve quality of life. However, individuals, organizations, and societies have to address existing and emerging barriers and challenges to the free and effective use of information, including, but not exhausted by, the following:
This literacy creates new opportunities to improve quality of life. However, individuals, organizations, and societies have to address existing and emerging barriers and challenges to the free and effective use of information, including,
but not exhausted by, the following:
* Limited capacities, resources and infrastructure;
* Censorship, limited information in the public domain, commercialization, privatization, and monopolization of information;
* Lack of respect for cultural and linguistic diversity;
* Excessive and inappropriate legal barriers to accessing, distributing and owning information;
* Lack of awareness of long-term preservation of information, particularly personal digital information; and
* Lack of cross-sectorial and interdisciplinary collaboration among stakeholders (between librarians and media educators, between mass media outfits and academic organizations, etc.)"
Media and Information Literacy is a basic human right in an increasingly digital, interdependent, and global world, and promotes greater social inclusion. It can bridge the gap between the information rich and the information poor. Media and Information Literacy empowers and endows individuals with knowledge of the functions of the media and information systems and the conditions under which these functions are performed.
The final declaration is now available. The set of presentations and texts that provided the background leading to the declarati
As you’ve likely heard, Apple and Samsung continue to duke it out in what commentators have calledthe “patent trial of the century.” The case involves more than three dozen devices (such as iPhones, iPads, and Galaxy phones and tablets) and various patents, allegedly covering Apple’s designs, “double-click-to-zoom,” 3G technology, and various other functionalities. But what’s really at stake?
Apple argues that it’s been harmed to the tune of $2.5 billion (!) and seeks to have Samsung’s products banned from the market. Samsung claims that Apple owes it at least $400 million in back royalties. Right now, the companies’ fates lie in the hands of the jury, but it’s not Apple or Google who stands to suffer the most harm: it’s the consumer.
Depending on how the case turns out, consumers could find themselves with fewer choices, since — if Apple has its way — the Galaxy products will be off the market. (In fact, the judge in this case already enjoined the sale of the Galaxy Nexus phone, but the injunction was stayed pending the outcome of this trial.) Less competition is bad for consumers, and those who already own Galaxy products could find themselves with a more limited market for accessories and repairs.
This lawsuit has garnered much attention, but it’s just the latest in a long line of intellectual property cases between parties big and small that abuse the system and misallocate valuable resources (you might remember such recent hits at Oracle v. Googleand the Eolasdebacle). The high costs of this litigation — usually well into the millions of dollars in a single case before any damages are even awarded — are often spread over many lawsuits, as parties take these fights to courts all over the country and the world. And it's not just the costs of litigation, but that companies feel a need to grow their own patent arsenal defensively. Taken together, these outrageous patent expenses are often ultimately borne by the consumer in the form of higher prices. Even worse, each dollar that is spent on lawyers and litigation costs is not spent on growing businesses, investing in R&D, hiring more employees, or otherwise benefitting our recovering economy.
Our patent system is intended to incentivize innovation, in theory at least. Lately it’s become little more than a tool to squelch competition, and it’s not just the Apples and the Samsungs of the world who find themselves fighting these battles. It’s also small and innovative companies, local governments, foreign companies trying to make it in America, hobbyists, and even individual developers. The problems are particularly acute in the world of software: it turns out that software patents are nearly five times more likely to be the subject of litigation as other patents. In fact, lawsuits surrounding software patents have more than tripled since 1999.
Apple v. Samsung is not the problem in itself, but it’s a symptom of a broken system. You can find some of our proposals to fix it at defendinnovation.org. We also support pending legislation that would make it tougher to bring bad lawsuits and a little easier to fight back and other self-help remedies for those who don’t want to waste their time and money fighting bad software patents. But it won’t be until the consumers stand up and take on this fight, too, that we will see real change.
It's that time again! South by Southwest has launched their Panel Picker, inviting the Internet community to help select the panels that will be featured at the next festival. There are quite a few panels this year featuring EFF staff and friends. We've highlighted a few of them below. Check them out and vote them up if you want to see them in Austin!
Our Director of International Freedom of Expression Jillian York and Jennifer Lynch team up with academics from the University of Texas and the University of Georgia to talk about "CryptoWars Deja Vu." This panel looks at the new wave of export controls on communications tools and what tech companies can do to ensure that people world wide can have access to technology that protects their rights.
In "Drones Gone Wild," EFF Activists Trevor Timm and Parker Higgins will be joined by Ryan Calo from the University of Washington Law School and Nabiha Syed from the New York Times to talk about the future of drones and privacy.
Senior Staff Attorney Marcia Hofmann is proposing a solo talk on "Legal Bootcamp for Mobile Developers." She'll cover jailbreaking, reverse engineering, storing user information, and intercepting communications. If you're in the mobile development space, this stuff is vital to know.
Activist Adi Kamdar is teaming up with Parker Phinney of Sneakpeeq to provide a master class on the amazing art of improv and how it can help with creativity and team building.