The Office of the United States Trade Representative (USTR) released its annual Special 301 report on Monday, a review of other countries’ intellectual property laws and enforcement standards. The Report lists countries that are singled out for having “bad” intellectual property policies on a tiered set of “watch lists”: the Watch List and the Priority Watch List. The USTR uses the threat of placement on one of these Watch Lists to pressure other countries to adopt heightened copyright, trademark and patent laws that mirror or in some cases exceed U.S. law. By being placed on this list, the USTR hints at the possibility of trade law repercussions. Although it does not directly lead to imposition of trade sanctions (as is the case for the top Priority Country designation), being put on the watch lists or singled out for an “out of cycle” review does lead to increased scrutiny and bilateral pressure for trading partners to change their laws.
What’s particularly obnoxious about the watch lists and the annual Special 301 process is that countries are being asked to adopt very particular implementations of international legal standards and interpretations of controversial parts of U.S. law that only reflect the interests of intellectual property (IP) rightsholder industries. At the same time, they do not provide any evidence that such implementation is necessary as a matter of international law, or even good policy. For instance, countries have been listed for introducing copyright exceptions and limitations that would be permitted under international law or even U.S. law, such as fair use that facilitates the creation of user-generated content and technological innovation. This is why, outside the U.S., the annual Special 301 reports are seen as a one-sided and arbitrary mechanism the USTR uses to bully countries into enacting intellectual property laws through a vague and opaque process that directly manifests the desires of the copyright industries.
So how exactly does the USTR determine which countries deserve the Special 301 treatment? It hasn't published its criteria, but the final determinations seem to follow recommendations made every year by Big Pharma and the International Intellectual Property Alliance on behalf of their member content industries. Failure to “adequately” implement the 1996 WIPO Internet treaties (which is code for failing to adopt DMCA-style bans on bypassing digital locks) seems to feature quite regularly. This year, Canada, India, and Israel all made it on to the Priority Watch List for this reason. Similarly, failing to “adequately” address “online piracy” gets repeat mention. In previous years, countries (e.g. Chile, Israel) have been listed for trying to introduce copyright exceptions such as fair use.
For the first time in 2010, the USTR opened up the submission process to provide an opportunity for public interest advocates to file responses to private rightsholders’ interest reports. EFF and Public Knowledge submitted recommendations to address gross deficiencies in the process, including the complete lack of transparency in their standards for determining “adequate and effective [intellectual property rights] protection”.1 Moreover, we recommended that an independent external review of country data and statistics occurs to determine the true sources of “concerns” claimed in the report. The USTR has continued to accept comments and have held public hearings before the Special 301 subcommittee. However, the lack of any substantial objective assessment or increased transparency in the process, demonstrates that these have essentially made no impact on this process.
What’s so disheartening is that there’s evidence that this list is in fact effective in ratcheting up copyright laws around the world. Spain is commended in this year’s report for passing its highly controversial website shutting and blocking “Sustainable Economy” Law. As we’ve noted before (here and here) that leaked diplomatic cables published on Wikileaks show that the US pressured successive Spanish government administrations to pass the controversial law under threat of being listed on the Special 301 Watch List, and more recently, being upgraded to the Priority Watch List. Before the passage of this law, Spain had been on the pragmatic side of copyright legislation. As the legislation was getting passed, digital activists and Internet rights lawyers recognized that in practice, enforcement of the law would skirt due process, violate personal privacy, and limit free expression. The passage of the law sparked countrywide protests and even a boycott of all artists and studios that supported the legislation, but to no avail. Since Spain had met the requests of U.S. officials and IP rightsholder groups, it is not listed in either of the 2012 report’s watch list.
Mike Masnick of Techdirt has covered the publication of the Special 301 Report for several years, rightfully criticizing the ridiculously blatant demonstration of corporate influence over U.S. foreign copyright policies. He wrote about the 2011 report last year:
The really sickening part in all of this is that the USTR makes no effort to determine what sorts of IP laws are effective or reasonable. None. It just pushes other countries to ratchet up their IP laws to more and more draconian levels. Basically, if anyone thinks they have a better idea on how intellectual property laws should be done, the US government shames them with this report.
As Michael Geist noted in his blogpost on this year’s Special 301 Report, Canada already has strong copyright laws and enforcement penalties, but the USTR has continually listed Canada on the Priority Watch List to pressure it into adopting particular measures sought by US rightsholders. He says this undermines the credibility of the entire Special 301 process in the eyes of other governments. Geist made a submission with Public Knowledge to the USTR this year. It said [pdf]:
...the USTR should be guided by U.S. law in evaluating the laws of other countries. Viewed from a U.S. law perspective, Canadian copyright laws provide adequate and effective protection to US IP rights owners... Furthermore, Canadian authorities effectively enforce copyright laws. Consequently, rates of infringement in Canada are low and the markets for creative works are expanding. Placement of Canada on the Special 301 Watch List or Priority Watch List in the face of this evidence would be unjustified. It would only lead to undermining the legitimacy of the Special 301 process.
It’s not news that the USTR’s activities reflect the fact that this and previous administrations have been doing the bidding of the big content industry lobbyists for many years. The Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership agreement (TPP), and free trade agreements between the U.S. and dozens of countries around the world reflect the special interests and lobbying power of the Big Content and Big Pharma rightsholder industries. The Special 301 process has proven to be a durable and extremely effective mechanism for pressuring other governments to enact over-reaching copyright laws, to the detriment of citizens’ rights around the world and the US technology sector’s export markets. But in light of this year’s events, the 2012 Special Report underscores the urgent need for our foreign policy on IP to be based on fair and transparent process and an objective assessment of empirical evidence.
The campaign of attacks targeting Syrian opposition activists on the Internet has taken a new turn. Since the beginning of the year, Syrian opposition activists have been targeted using severalTrojans, which covertly install spying software onto the infected computer, as well as a multitude of YouTube and Facebook login credentials. Last week, TrendMicro's Malware Blog described a website which purportedly offered Skype encryption software, but was actually a Trojan that installed DarkComet 3.3, a remote administration tool that allows an attacker to capture webcam activity, disable the notification setting for certain antivirus programs, record key strokes, steal passwords, and more--and sends that sensitive information to an address in Syrian IP space. This week, EFF has found an almost identical website located at http://skype-encryption.sytes.net/, shown in the screenshot below.
Clicking "download" downloads the fake Skype encryption application, called "Skype Encryption v2.1," shown in the screenshot below.
Launching the application produces a window that gives you the option to "Encrypt" or "DeCrypt," shown in the screenshot below.
When you click "Encrypt," the application launches a message asking you to please wait while it encrypts your connection, shown in the screenshot below. To be clear, this application does not encrypt anything. Instead of encrypting your Skype traffic, the application downloads a Trojan from http://188.8.131.52/SkypeEncryption/Download/skype.exe. This is the same Syrian IP address used in attacks described by TrendMicro, Symantec, Cyber Arabs, and in several of EFF's blog posts.
Once your connections are allegedly encrypted, the application launches a window that says, "Your Connections are Now Completely Encrypted ! ..... Enjoy," as shown in the screenshot below.
Syrian Internet users should be especially careful about downloading applications from unfamiliar websites. The fake Skype encryption site showed many obvious signs that it might not be legitimate, from the misspelling of "encryption" to the abuse of Comic Sans, but we can expect future attacks to be more sophisticated.
Kuwait’s Information Minister, Minister Sheikh Mohammad al-Mubarak Al-Sabah, announced last week that Kuwait plans to pass new laws regulating the use of social networking sites such as Twitter in order to “safeguard the cohesiveness of the population and society.” The Information Minister’s announcement reflects growing panic over comments in social media deemed to incite the mounting sectarian tension between Sunnis and Shi’ites throughout the region.
Even without additional regulatory powers, the Kuwaiti government has cracked down on social media in the last year, especially Twitter. Writer Mohammad al-Mulaifi has been held for more than a month over accusations of "insulting the Muslim Shi'ite minority" on Twitter, a charge which for another activist, Mubarak Al-Bathali, resulted in a prison sentence of three years—later commuted to six months. In the summer of 2011, Nasser Abul spent three months in prison for criticizing the Bahraini and Saudi royal families on Twitter. In December of 2011, the Interior Ministry—perhaps unclear on the difference between suspension of accounts and blocking—announced that it had asked the Ministry of Communications to “suspend all anonymous accounts” on Twitter. There is no indication that the Ministry of Communications has complied with this request, possibly because Twitter’s verified accounts are limited to celebrities and brands—sorting out all of the anonymous accounts on Twitter would be a non-trivial task for the Ministry to take on.
Until now, the Internet in Kuwait has been relatively free compared to other countries in the Gulf region. The OpenNet Initiative describes the Kuwaiti media as “the most outspoken in the Arab world,” though they go on to point out that journalists are expected to exercise self-censorship when covering matters related to the Emir and the royal family. The Ministry of Communication regulates ISPs in Kuwait, forcing them to block pornography, anti-religion, anti-tradition, and anti-security websites. The Ministry also censors sites considered to "incite terrorism and instability," blocking websites that are critical of the government or seen to support terrorism.
What form these new regulations on free speech will take is as yet unclear, but the Ministry of Information's announcement strongly suggests that we may see additional regulation of speech that is seen as contributing to sectarian tensions as well as broader attacks on anonymous speech. EFF will continue to keep a careful eye on these worrisome developments in the Gulf region.
In the wake of the infamous Bay Area Transit Authority (BART) shutdown of cell phone service during a protest in August of last year, the FCC opened a notice of inquiry on the issue and asked for public comment last month.Since the incident in August, BART has issued its own cell phone shutdown policy, which EFF has criticized as still allowing shutdowns in situations clearly protected by the First Amendment.
As EFF said at the time, the actions of the BART authorities in August were more akin to former Egyptian President Hosni Mubarak than that of a government mandated by the Constitution to respect the free speech of its citizens. The First Amendment clearly prevents the government from censoring communications in only the most narrow of categories: by demonstrating “a direct, immediate, and irreparable harm to the Nation or its people.” Absent that, any wireless service interruption will inevitably restrain many innocent Americans ability to communicate and endanger free expression.
In addition, the federal Communications Act forbids both network interruptions by government and carriers or other private parties from interrupting or interfering with wireless service. And a substantial line of cases in California have held that state and local governments cannot disconnect telecommunications services “based solely upon the suspicion of disfavored or even illegal activity.”
It’s clear that a shutdown of communications is antithetical to the laws this country is built on. In our petition, we detail several situations—from countries like Egypt to Panama to Syria—of foreign governments using its power to shutdown communications services in a variety of situations. As we argue to the FCC, if the federal or state government in the US engages in the same type of practices, they “would be emulating—and providing a dangerously legitimating example for—authoritarian regimes across the world that have engaged in or would like to engage in wireless service interruptions to stifle free expression.”
It’s important to note that shutdowns of wireless service negatively affect both the public’s First Amendment rights and public safety. Individuals communicate using wireless services for a host of reasons—whether to make dinner plans with friend or family, contact emergency services, organize a protest, or use theInternet to check the news. BART argued at the time that they shutdown wireless service to protect passengers safety. Yet the cell phone shutdown violated not only the free speech of the protesters, but also that of the passengers in the train who also couldn’t use their phones to call their families.Safety and free speech are not mutually exclusive; in contrast, they are intertwined, and by shutting down cell phone service in August, BART threatened both.
We hope the FCC will respond promptly to our comments and rule once and for all that neither the government or private wireless services can shut down wireless service once as a matter of policy.
Read the entire comment submitted by EFF, Public Knowledge, and CDT below.
It seems that the government's thirst for high tech surveillance can't be quenched. First, came the NSA's warrantless wiretap program. Then it was CISPA. Now, its warrantless video surveillance in the home. And just like we stood up against the NSA and CISPA, yesterday we told the Ninth Circuit Court of Appeals that invasive warrantless home video surveillance violates the Fourth Amendment.
Ricky Wahchumwah, a tribal member of the Yakima Nation, was suspected of selling bald and gold eagle feathers, as well as the feathers and pelts of other migratory birds, in violation of federal law. As part of its investigation, a undercover agent from the U.S. Fish and Wildlife Service went to Wahchumwah's house, pretending to be interested in buying feathers and pelts. Wahchumwah let him in his house, not knowing that the agent was secretly recording everything with a tiny video camera hidden in his clothes. The agent proceeded to capture two hours of video of Wachumwah's home, including interactions between Wachumwah and his partner and children, and was even left alone by Wachumwah for periods of time, who did not suspect he was being recorded.
Charged with violating the Bald and Golden Eagle Protection Act and the Lacey Act, Wahchumwah moved to suppress the video evidence as an unreasonable search under the Fourth Amendment. The trial judge denied his motion, ruling that since Wahchumwah let the agent into his house, and the agent could testify to everything he saw in the house, Wahchumwah had no expectation of privacy. Wahchumwah appealed this decision to the Ninth Circuit, and we filed an amicus brief supporting him.
As we explain in our brief, a video camera can capture far more detail than a human eye. And unlike the human mind, a video camera doesn't forget. After all, if an officer's observations were sufficient, there would be no need for the video camera in the first place. Building on the Supreme Court's landmark decision inUnited States v. Jones, which ruled the Fourth Amendment prohibited the warrantless use of GPS surveillance to monitor a person's car on public roads for 28 days, we make two main arguments.
First, the initial appellate opinion in Jones issued by the D.C. Circuit (at the time called United States v. Maynard) explained that although a person may reveal discrete parts of his movements when driving in public, "the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil." While the Supreme Court affirmed the D.C. Circuit under a trespass theory instead, the D.C. Circuit's astute point applies equally to video surveillance. Even if Wahchumwah permitted the undercover agent into his home, it would be extremely unlikely that Wahchumwah, or anyone else, would expect that his house guest was secretly video recording every little detail. And that meant even if Wahchumwah consented to the agent entering his house, he certainly did not consent to secret video surveillance.
Second, as Justice Sotomayor said in her concurring opinion in Jones, the fact that technology allows the government to cheaply and efficiently aggregate data in ways that were impractical in the past has the potential to "alter the relationship between citizen and government in a way that is inimical to democratic society.” While it is technically possible to follow someone for 28 days continuously, it is expensive and difficult. GPS technology now allows the government to track someone wherever they go and as long as they want, all from the comforts of the police station. A video camera does the same thing. Sure, its possible for someone to enter a house and write down everything they remembered seeing hours later when they leave the house. But a video camera is capable of aggregating an enormous amount of data that would be difficult for human senses to replicate. When a video camera secretly enters the home, it can capture things like the mail on your coffee table, the books on a shelf, or the pictures on your wall. And the whole point of a camera is to record and save for another day, allowing the government to not have to rely on the human mind's tendency to forget. It can rewind again and again to examine every minute detail of the house.
In the past, such intensive video surveillance was reserved for serious, violent crimes. Today, its being used by Fish and Wildlife officers to investigate misdemeanors. A search warrant requirement strikes the right balance between the government's need to investigate crime, and the public's right to privacy -- particularly in the home, the most private of all places. Hopefully, the Ninth Circuit will reverse the trial court, and eradicate this invasive warrantless surveillance once and for all.
Our movie industry has created some memorable monsters on screen. But Hollywood, and the major music labels, also helped create a very real kind of monster - copyright trolls who coerce settlements from Internet subscribers using intimidation and our out-of-whack copyright laws. Last Friday, EFF Senior Staff Technologist Seth Schoen took the witness stand in AF Holdings v. Does to explain to a federal judge why BitTorrent users should be able to hold on to their constitutional rights when targeted by trolls. Although some courts have put the brakes on the trolls' schemes, there's no Hollywood ending in sight yet. As the entertainment industries continue to push for ever-stronger copyright through treaties, private agreements, Congress and state legislatures, it's time to ask - how will Hollywood help protect us from the trolls?
The current crop of copyright trolls sue anywhere from 20 to 5,000 "John Doe" defendants in a single lawsuit, pinned to a list of Internet Protocol addresses that they claim to have seen downloading copyrighted movies using BitTorrent. Then, with the courts' permission, they send subpoenas to Internet service providers for the names and addresses of subscribers. The trolls then send threatening letters, demanding settlement payments to "make this go away" or face being dragged into court - often in a faraway state. Over 200,000 U.S. residents have been caught up in these suits, with many undoubtedly settling simply to end the harassment.
The trolls are, of course, following a trail blazed by the major music labels through the Recording Industry Association of America. Beginning around 2003, they sued about 35,000 people, using the courts' subpoena powers as a private investigation service to find names and addresses. The RIAA ended its lawsuit campaign in 2008, apparently realizing the damage that suing its own fans had done to the industry's image.
It was perhaps inevitable that the vacuum would be filled by opportunists with no public image to protect. Since 2008, troll lawyers have sued about six times more people than the RIAA ever did, and pursued them even more aggressively, probably netting millions in settlements. Some have faced court settlements for cutting corners in court procedure, and one was even caught practicing law without a license. But this scheme wouldn't be a viable business model without the draconian imbalances of U.S. copyright law and legal precedent that the entertainment industries and their lobbyists have pushed through Congress and the courts.
For starters, the statutory penalty for sharing even one copyrighted work - say one song - is as much as $150,000. It's no surprise that many people choose to settle for several thousand dollars rather than risk a bankrupting court judgment - even if they broke no law. The entertainment industries insist that we need these gargantuan penalties to deter infringement, but the same "statutory damages" provisions are the knobby club in the hands of the trolls.
Then there's the legal doctrine of "secondary liability." The movie and recording industries are constantly pressing for broader liability for intermediaries, Internet sites and services, and makers of tools and software. Copyright trolls use these concepts to disregard actual copyright infringers and instead go after the owners of Internet accounts, who are often easier to find. The trolls suggest, using the rhetoric of secondary liability, that merely allowing others to use one's Internet connection, or operating an open Wi-Fi node, makes one liable for any copyright infringement. This isn't the law, but the trolls don't warn their marks about that. Often, even those who understand secondary liability, or can afford hiring a lawyer, choose to pay a settlement for someone else's alleged infringement rather than risk a lengthy and expensive trial, even if they would prevail.
Then there's the very concept of lawsuits aimed at dozens or thousands of "John Doe" Internet account holders. Plaintiffs in these suits often group together Internet users from all over the country and obtain their identities from ISPs by court order. Doing this requires trampling on jurisdiction rules that keep people from being unfairly forced to defend themselves far from home, joinder rules that guarantee every defendant is treated as an individual, and the First Amendment, which gives us a right to communicate anonymously. The RIAA's lawsuit campaign also disregarded these legal safeguards. After the RIAA opened this door, the trolls lumbered in.
Finally, the entertainment industries have spent decades, and millions of lobbying and advertising dollars, to promote the simple but flawed idea that if copyright law promotes creativity, then ever-more-extreme copyright law will promote even more. According to this philosophy, the importance of preventing even the most inconsequential copyright infringement justifies chilling free speech, unmasking anonymous Internet users, wholesale regulation of the Internet … and setting loose the trolls. This worldview was on full display at a hearing last week in the D.C. federal district court, when ISPs, assisted by the EFF, tried to quash subpoenas for Internet users' identities. EFF's Seth Schoen matched wits with pornography financier AF Holdings's expert on the workings of BitTorrent and Internet forensics, and the plaintiff's attorney defended his litigation tactics as an acceptable way to "stop piracy."
Although there will always be people willing to use the legal system as part of a shakedown, copyright trolls are a monster created in Hollywood. Naturally, the entertainment industry's spokespeople, lobbyists, and other mouthpieces don't discuss how the laws, treaties, court precedents, and private enforcement agreements they spend millions to promote will be misused by opportunists. But when the next SOPA, PIPA, ACTA, TPP, graduated response agreement, or state-level copyright bill comes along, let's ask Hollywood and its allies how they plan to keep trolls confined to the big screen.
No sooner did a mandatory data retention law go into effect in Austria this month than thousands of Austrians banded together in a swift opposition campaign to overturn it.The Austrian law originated as the misshapen offspring of the 2006 European Data Retention Directive. Led by AK Vorrat Austria, a working group against mandatory data retention, the pushback against this mass-surveillance law demonstrates that opposition remains alive and well six years after the European Union adopted the infamous Directive.
The Austrian data retention law compels all ISPs and telcos operating in Austria to retain everyone's incoming and outgoing phone numbers, IP addresses, location data, and other key telecom and Internet traffic data. The information is collected for all citizens, rather than just those suspected criminal activity. In many cases, the data is handed over to law enforcement.
Austrian activists took advantage of a two-year delay of the implementation of this ill-conceived Directive in their country by mapping out their opposition strategy in advance. They sought to leverage a two tier strategy to beat back the Data Retention Directive at the European level, and to fight against theAustrian data retention law at the national level.
One day before the law entered into force, Austrian activists organized funeral marches to protest this anti-privacy, anti-anonymity, anti-free expression law.
Now, just weeks after the Directive officially went into effect, its future hangs in the balance as a pair of efforts calling for its reversal speed toward Austria’s Constitutional Court. Austrian activists are seeking to overturn the legality of the Austrian law with a mass complaint filed with Austria’s Constitutional Court. With nearly 7,000 supporters formally signed on and 18,000 declaring their intent to join, that effort that is shaping up to be “the biggest complaint in the history of the republic,” according to European Digital Rights (EDRi), a coalition of 32 privacy and civil rights organizations working in the European Union, including EFF. AK Vorrat Austria initially announced that it hoped to bring 1,000 individuals together to sign onto the complaint – and surpassed that goal in two days’ time.
But activists aren’t stopping there. On a parallel track, AK Vorrat Austria has already gathered 100,000 signatures for a citizens’ initiative calling for their government to work towards the abolishment of the EU Directive. The signatures are enough to meet the required threshold to force the issue to be considered by the National Council, Austria’s legislative branch of government.
Andreas Kirsch, President of European Digital Rights (EDRi) and of the Austrian Association for Internet users (VIBE!AT), noted that this is the first time activists have taken advantage of a new tool that allows citizens to sign petitions on the parliament website. "So the parliament not only has the pressure of 100,000 citizens but also of the success of their own new instrument for direct political participation," he explained. "They therefore need to show that they take our concerns seriously." He said a hearing could take place as early as June.
This isn’t the first time this Directive has sparked an uproar in Europe. When it first became clear that the EU was going to cave to governmental lobbying interests from the U.S. and UKand enact a sweeping law that would effectively legitimize mass surveillance, the Freedom not Fear movement responded with massive street protests in Germany and across Europe.
The opposition continues, and is only growing. Courts in Romania, Germany, and the Czech Republic have declared their national laws derived from the EU Directive to be unconstitutional, while a court in Ireland has referred a case to the European Court of Justice—the highest Court in Europe for matters related to European Union law—questioning the legality of the overall EU Data Retention Directive. The European Data Protection Supervisor Peter Hustinx has called the Directive “the most privacy-invasive instrument ever adopted by the EU in terms of scale and the number of people it affects.” Despite all this, the European Commission is still defending it even though it has not been able to provide any evidence that the Directive is necessary, and therefore legal, in the European Union.
Austrian Association for Internet users (VIBE!AT), the Ludwig Boltzmann Institute of Human Rights and several other Austrian activists are encouraging all concerned Austrians to join this fight. Austrians can join the mass complaint against the Austrian data retention law by filling out the declaration form by May 18, available at verfassungsklage.at.
Meanwhile, all Austrians age 16 and older should support the citizens’ initiative online at zeichnemit.at (in German) to call for the abolishment of the EU data retention directive. Take Action: Sign the citizens' initiative now. Tell the Austrian government to fight for the repeal of the European Data Retention Directive in Brussels.
"We were able to demonstrate – in combination with the ACTA demonstrations – that a large number of citizens oppose a further increase of government surveillance," Kirsch said, "and that the time of anti-terror hysteria is finally over."
Note: This post has been updated from an earlier version.
EFF gives a heartfelt thank you to the reddit community, which just raised over $7,500 for digital rights! Yesterday, a commenter on reddit politics asked "Why don't we form an Internet Freedom Association like the NRA has for firearms?" observing that "[t]hose in power know and have witnessed the populist organizing power the internet can have which is why they are in a rush to try to take control of it." Precisely. An astute redditor commented that the Electronic Frontier Foundation fights privacy threats like CISPA each day and the public should donate to support the cause. As a result, EFF received over 200 separate donations over the past 24 hours!
We're making great progress so let's keep the pressure on! If you haven't taken a moment to become an EFF member this year, please do it today. EFF has been the voice of reason in digital rights debates for over two decades, so especially if YANAL, keep supporting the expert legal team that has your back. Thank you.