This Wednesday, November 16, the disastrous "Stop Online Piracy Act" (SOPA) heads to the House Judiciary committee. In case you need a refresher, SOPA could allow the U.S. government and private corporations to create a blacklist of censored websites, and cut many more off from their ad networks and payment providers. This bill is bad news, and its supporters are trying to push it through before ordinary citizens realize just how much damage it can cause.
If you run a website, you too can join in the protest. One easy way is to go to the American Censorship Day website, which Fight for the Future runs, and follow the instructions there to grab their code to embed on your page. On Wednesday, that code will give visitors the chance to write or call their representatives and sign up for future updates from Fight for the Future without leaving your site. Starting Saturday, Fight for the Future will also post instructions on how to “black out” your site logo as a second method of protest.
The Intelligence Oversight Board, or IOB, is a Presidentially appointed, independent, civilian oversight board charged with ensuring that intelligence investigations comply with laws, executive orders, and internal agency procedures. Toward the end of the Bush Administration, the IOB’s oversight responsibilities were largely gutted, shifting primary responsibility to the Director of National Intelligence. However, shortly after taking office, President Obama rolled back those changes, restoring many of the IOB’s important oversight functions.
Nearly two years after making those changes, though, President Obama still had not announced any appointments to the IOB, nor made clear that any of the members of the President’s Intelligence Advisory Board – the larger Presidential intelligence advisory board of which the IOB is a component – were serving on the IOB. Given the IOB’s renewed importance in the intelligence oversight process, its proper functioning is vital to ensure that intelligence agencies are operating within the bounds of the law.
In September, EFF sued the DNI for failing to respond to the request. A week after we filed suit, DNI produced three documents (pdf) that they claimed satisfied our request.
DNI’s production consisted of the bios of three PIAB members – Chuck Hagel, Lester Lyles, and David Boren – with the words “IOB Chair” or “IOB Member” hand-written on the page.
Another consisted of a press release (pdf) announcing appointments to the PIAB, with the words “IOB Mbrs: Hagel (chair), Boren, and Lyles” written on the press release.
The final document was a list of suggested invitees for DNI’s 2010 holiday party. The list is primarily made up of PIAB members, and the fact that Hagel, Boren, and Lyles also serve on the IOB is noted parenthetically.
So, according to DNI, the IOB currently has three members. Determining if the IOB even had members was EFF’s primary goal from the outset, and we’re pleased we were at least able to learn that much. But the government’s treatment of our request and the documents it produced may raise more questions than they answer.
For example, are those documents really the only responsive records in DNI’s possession? Our FOIA request was fairly broad: we asked for all records “reflecting [t]he composition [or] membership” of the IOB. In response, DNI produced two documents that don’t even mention the IOB (aside from the hand-written notations) and a list of holiday party invitees. If those are the only records reflecting the composition of the IOB, it certainly does not suggest that the DNI and the IOB are working closely to ensure that a robust intelligence oversight program is in place. On the other hand, if those aren’t the only responsive records, it means DNI isn’t complying with its legal obligations under FOIA.
Another question: why the unnecessary secrecy? EFF only filed the request after the White House failed to answer a reporter’s questions about the IOB’s membership. Then, it took DNI eight months and the filing of a lawsuit in federal court to produce 12 pages of entirely uncontroversial material. There simply aren’t legitimate reasons for this type of information stonewalling.
Our litigation is still pending, and it’s our hope that some of these questions will be answered by DNI. But, above all else, it’s our hope that the IOB is satisfying its important oversight responsibilities.
Egypt imprisons Alaa, other pro-democracy bloggers
EFF recently highlighted the case of Alaa Abd El Fattah, one of Egypt’s most influential pro-democracy bloggers, who is now serving fifteen days in jail for refusing to be interrogated by military prosecutors. His supposed crime? Accusing the military of having a direct role in the killing of 27 people during a Coptic Christian protest in October. As the Guardian reported, Alaa’s claim “appears to be supported by extensive witness reports and video footage.”
On Wednesday, Alaa smuggled a letter out of prison and had it published in papers around the world. The letter, which accused the police of torturing his fellow prisoners, increased international pressure on the Egyptian military which, in response, announced hundreds of civilians convicted in military courts since the revolution in January would be set free. But as the Guardian reported, Alaa’s wife criticized the announcement as just “a drop in the ocean.” Since longtime dictator Hosni Mubarak gave up power, more than 12,000 civilians have been given military trials, including other prominent bloggers such as Maikel Nabil Sanad.
Sanad has been in jail and on a hunger strike for more than seventy days now, protesting his alleged “crime”: daring to write, 'The army and the people were never one hand'—a fact that has become increasingly clear, as the army postponed his trial yet again to November 13.
EFF continues to call on the Egyptian authorities to release Abd El Fattah and Sanad, and every other civilian imprisoned for attempting to exercise their inherent right to freedom of speech.
Human Rights Coalition Speaks Out Against UAE Bloggers’ Conviction
Meanwhile in UAE, the trial of the five bloggers arrested in April for signing a petition for pro-democratic reforms continued as they reasserted their boycott of the proceedings.
According to Reporters Without Borders, the activists, including prominent blogger, Ahmed Mansoor, were charged with “threatening state security, undermining public order and insulting the president, the vice-president and the crown prince of Abu Dhabi.” They have continually refused to attend hearings in protest. The bloggers claimed they are only on trial for political reasons and that they’ve been mistreated in detention. Reporters Without Borders also accused UAE of deliberately extending the trial for more than six months with the intent of indefinite detainment.
On Thursday, a coalition of human rights organizations released a statement condemning the perverse due process conditions of the court. A report released by the coalition accused the UAE prosecutors of prejudicial interruptions of the defense, ignoring the defense’s motions, and denying the men confidential meetings with their lawyers.
As the Syrian government continues to crackdown on pro-democracy protests, bloggers are increasingly becoming government targets. Reporters Without Borders released a list of 22 bloggers who are currently imprisoned while indicating “the list is almost certainly incomplete.”
The Committee to Protect Journalists also highlighted two bloggers from Syria who have recently gone missing. Journalist Lina Saleh Ibrahim, a business reporter for Tishreen, and Wael Yousef Abaza, a freelance journalist, have both been missing since October 25th.
EFF joins Reporters Without Borders and the Committee to Project Journalists in condemning the detainment of journalists and bloggers reporting on Syria’s pro-democracy protests. We also reiterate CPJ’s statement about the missing journalists, "The government [of Syria] must immediately clarify whether it is holding these journalists, and if so, why."
US State Department Weighs In on Blue Coat and Websense Steps Up
As we reported last week, despite their initial implausible denials, Blue Coat Systems now admits that their censorship and surveillance software has been found in the government-controlled Syrian Telecommunications Establishment. The US State Department spokesperson has now said in a press conference that they are “reviewing the information that [they] have and monitoring the facts,” noting that the U.S. has very strict controls on most exports to Syria. This is good news, but we hope they will also engage their colleagues in the Commerce and Treasury Departments who have more clear authority to enforce the export controls sanctions regimes.
Especially in light of the ongoing surveillance and human rights violations in Syria, Blue Coat’s shifting story, and the log files showing ongoing connections between Blue Coat and the machines in Syria, the public deserves a transparent accounting of how the Blue Coat technology ended up in Syria, what Blue Coat knew about it and when they knew about it. We hope that State Department’s concerns are only the beginning of this process.
Blue Coat, like many other technology companies, currently does not have a corporate policy against selling to governments engaging in censorship or surveillance against democracy activists, and as we noted before, only seems interested in the export sanctions, not whether its technologies are actually being used as part of state oppression.
In contrast, Websense just issued a clear human rights policy and a challenge to other technology companies to match it. Websense says:
Websense does not sell to governments or Internet Service Providers (ISPs) that are engaged in government-imposed censorship. Government-mandated censorship projects will not be engaged by Websense. If Websense does win business and later discovers that it is being used by the government, or by ISPs based on government rule, to engage in censorship of the Web and Web content, we will remove our technology and capabilities from the project.
The exact parameters may be different for companies more focused on surveillance than censorship, but the thrust here is the right one. In fact, Websense says that it refused to engage in a transaction that looks a lot like what Blue Coat says occurred:
And just last month, we detected—and blocked—two attempts to use our software using cloaked addresses in Europe that were actually fronts for entities in Syria, a country subject to trade sanctions by the United States. This is not rocket science, but it does take some moral fiber, smart people, commitment, and follow-through.
Websense is pointing to the technology sector in the direction of promoting freedom; BlueCoat represents the aiding oppressors. The choice for other tech companies is clear, and kudos to Websense for leading the way.
During the past week, momentum against the House’s draconian copyright bill has gained steam, as venture capitalists, Internet giants and major artists have denounced it for handing corporations unprecedented power to censor countless websites and stifle free speech. In response, the bill’s big-pocketed supporters have gone on the offensive, attempting to mislead the public about the bill’s true reach. In a particularly egregious example, the Chamber of Commerce posted an attack on its website insisting that the Stop Online Piracy Act (SOPA) is not a “blacklist bill."
Before they even saw the House bill, they started calling it the “New Internet Blacklist Bill.” Blacklist? That sounds pretty bad. But before we get carried away, let’s take a look at the actual language of the actual legislation. Can YOU find a blacklist? No? Can you find a list of ANY kind? No?
Of course the word “blacklist” does not appear in the bill’s text—the folks who wrote it know Americans don’t approve of blatant censorship. The early versions of PROTECT-IP, the Senate’s counterpart to SOPA, did include an explicit Blacklist Provision, but this transparent attempt at extrajudicial censorship was so offensive that the Senate had to re-write that part of the bill. However, provisions that encourage unofficial blacklisting remained, and they are still alive and well in SOPA.
First, the new law would allow the Attorney General to cut off sites from the Internet, essentially “blacklisting” companies from doing business on the web. Under section 102, the Attorney General can seek a court order that would force search engines, DNS providers, servers, payment processors, and advertisers to stop doing business with allegedly infringing websites.
Second, the bill encourages private corporations to create a literal target list—a process that is ripe for abuse. Under Section 103 (cleverly entitled the “market based” approach), IP rightsholders can take action by themselves, by sending notices directly to payment processors—like Visa, Mastercard, and PayPal—demanding that they cut off all payments to the website. Once notice is delivered to the payment processor, that processor has only five days to act.1 The payment processor, and not the rightsholder, is then responsible for notifying the targeted website. So by the time Visa or Mastercard—who will no doubt be receiving many of these notices—processes the notice, informs the website, and the website decides whether to file a counter notice, the five days will almost certainly have elapsed. The website will then be left without a revenue source even if it did nothing wrong.
Third, section 104 of SOPA also allows payment processors to cut websites off voluntarily—even if they haven’t received a notice. Visa and Mastercard cannot be held accountable if they cease processing payments to any site, as long as they have a “reasonable belief” that the website is engaged in copyright violations of any kind. Hmm, wonder how long it will take big media to publicly post a list of allegedly infringing sites, and start pressuring payment processors to cut them off? As long the payment processors are willing to comply, the rightsholders can essentially censor anyone they see fit. Even well-meaning payment processors might do this to avoid liability down the road.
The potential for rampant abuse is obvious—whether it’s a frivolous claim that wouldn’t withstand the scrutiny of the official process or an attempt to put an emerging competitor at an extreme disadvantage.
Clearly, contrary to the Chamber of Commerce’s rhetoric, SOPA gives rightsholders many ways to blacklist a website: they can hope the attorney general acts, they can cut off a website with a notice, or they can give notice unofficially and let the payment processors do their dirty work for them. Please help keep the Internet free and take action to help stop this bill!
1. This same provision applies to advertisers when the alleged infringing website does not rely on payment processors for revenue.
Make your end-of-year donation go twice as far! Give to the Electronic Frontier Foundation's EFF on Mission Building Fund Campaign before December 31st, and EFF will receiving a matching gift from the Brin Wojcicki Foundation — up to a total of $500,000! Contributions to EFF from new donors will be matched dollar for dollar; contributions from current supporters will be matched for the increase in gift. So bump up your donation and double your impact!
Your doubled donation will enable us to transform our newly-purchased building at 2567 Mission Street in San Francisco into a permanent home for digital rights protection. Renovations will include much-needed conference and collaborative areas, workspace for the EFF team, and improvements necessary to bring the aging building up to modern code. Now there's twice as much reason to give a little extra this holiday season!
Help us meet the $500,000 challenge by donating to EFF today and specifying that you'd like the qualified portion of your contribution to support the building fund. Simply select EFF on Mission on your donation form to participate! For more information, check out our FAQ.
Today, EFF's Twitter account received its 50,000th follower. That’s 50,000 people who care about the future of civil liberties -- at least enough to keep tabs on EFF through our Twitter feed. And while there are surely a few spam bots in there, we’re glad to seeso many thousands of people showing their allegiance to digital rights.
We use Twitter as a communication tool and also as a feedback mechanism, so we can educate people about digital rights and also hear back from our Twitter friends. While we don’t respond to every message directed our way on Twitter, we do read them and try to incorporate that feedback in future posts.
We wanted to commemorate the 50,000th follower on Twitter - and what better way than with a cute animal dressed up in EFF shwag? So pictured below is Kodi, our canine outreach coordinator. Kodi is an eight-year-old Newfoundland who lives with EFF legal director Cindy Cohn. He enjoys sprawling in front of the offices of the legal team, scaring new interns, eating peanut butter, and defending civil liberties. He's featured in the very chic EFF baseball cap and superhero-blue EFF member shirt. If you want to emulate Kodi's civil-liberties-loving fashion sense, check out the EFF store.
In the past week, the larger Internet community has joined EFF in sounding the alarm about the new copyright bill, now known as the Stop Online Piracy Act (SOPA), as it makes its way through the U.S. House. The bill threatens to transform copyright law, pushing Internet intermediaries—from Facebook to your ISP—to censor whole swaths of the Internet. SOPA could forever alter social networks, stifle innovation and creativity, and destroy jobs, which is why Rep. Zoe Lofgren wasn’t exaggerating when she said SOPA “would mean the end of the Internet as we know it."
But this bill could also have a huge impact on the work of human rights advocates and whistleblowers who depend on online tools to protect their anonymity and speak out against injustice. Platforms created to provide anonymity software to human rights activists across the world, as well as next generation WikiLeaks-style whistleblower sites, could be major casualties of this bill—all in the name of increasing Hollywood’s bottom line.
Under SOPA, private companies will be able to force payment processors to shut down payments to websites by merely claiming the site “engages in, enables or facilitates” infringement. This broad provision could target websites behind important Internet projects such as Tor, the anonymity network that has been vital for protecting activists from government surveillance in Tunisia and Egypt. While Tor is designed to promote free expression, privacy, and human rights (and has had an amazing impact on the Arab Spring), it can unfortunately also be used to mask one’s IP address when downloading copyrighted content, such as music. Corporations concerned about users illegally downloading music could use SOPA to force Visa and Mastercard to cut off donations to Torproject.org—despite Tor’s aim to facilitate human rights activism, not piracy.
Political and human rights video hosting sites like EngageMedia, which is committed to raising awareness about social justice and the environment in the Asian Pacific region, might also be under threat. If a single video on the site arguably contains infringing content (keep in mind that only a portion of a site has to be engaging in infringement), an IP rightsholder could reach out to Paypal and demand it shut down EngageMedia’s account.
We’ve seen the effect of this kind of action before, in the recent attack on WikiLeaks. In December, WikiLeaks started publishing its cache of leaked State Department cables, which also exposed many human rights violations. The First Amendment barred the government from censoring WikiLeaks directly, but that didn’t stop Senator Joe Lieberman from pressuring private companies to stop doing business with WikiLeaks. The media organization lost its domain name and servers. Then Visa, Mastercard, and PayPal stopped processing their donations—cutting off 97% of the global payment processing market for Wikileaks. As Harvard Law Professor Yochai Benkler put it, “This…allowed [the government] to obtain results (for the state) that the state is prohibited by law from pursuing directly.”
Last week, WikiLeaks announced that it would have to temporarily suspend its publishing operations because of this private-sector censorship, despite the fact that the organization has not been convicted, or even formally accused of, any crime. A similar fate awaits the next WikiLeaks if SOPA passes—even if the government never gets involved or has a legal leg to stand on.
Emerging nonprofit whistleblower sites could find themselves in the jaws of SOPA if they post any documents related to corporate corruption or law breaking, if those documents contain trade secrets or are copyrightable. In 2010, Microsoft unsuccessfully tried to knock the whistleblower website Cryptome offline in a comparable situation. Now, the offended corporation may simply send a notice to the payment processor alleging the posted documents violate their rights and the processors will have five days to cut off the whistleblowing site’s service. Those sites could be starved out of existence before they can ever gain traction to defend themselves. Potential whistleblowers wishing to prevent the next Enron could be shut out of the Internet, even though the Enron whistleblower herself has said how important sites like WikiLeaks can be for exposing corporate wrongdoing.
It’s unclear whether SOPA’s authors intended it to cover these websites that are vital to whistleblowing and human rights. If they didn’t, they need to press re-set; and next time, consult with the numerous Internet communities the bill could affect, rather than exclusively Hollywood lobbyists. But the immediate need is clear: the bill must be killed. If you care about free speech and a free Internet, act now!
Today, EFF, along with CCIA and Red Hat, filed a brief urging the entire Federal Circuit to rehear Ultramercial v. Hulu, a case that found an abstract idea patentable when it was tied to the Internet or other computer programming. Cases like this one make bad law, and unfortunately it’s innovators and consumers who will feel that law's harshest effects.
Last month, we wrote about some recent Federal Circuit cases dealing with the question of what subject matter is too abstract to be patentable – the same question, you may remember, that was at issue in the Bilski case. Unfortunately, these post-Bilski cases have further muddied an already confusing legal question and have led to some really bad patents.
Topping that list is the patent at issue in Ultramercial v. Hulu. There, the patent claiming an 11-step process for distributing “media products that are covered by intellectual property rights protection” that essentially consists of pairing the content with an ad and restricting access until the user views the ad. Because the process would take place on the Internet, the Federal Circuit found the patent was not impermissibly abstract, stating that many of claimed steps “are likely to require intricate and complex computer programming” and that “certain of these steps clearly require specific application to the Internet and a cyber-market environment.”
Of course, if all it takes to make an abstract idea a non-abstract invention is to tie it to the Internet or a “cyber-market environment” then we are going to face even more abstract patents for "technologies" that happen to relate to the Internet. This is unacceptable, and runs directly contrary to the Supreme Court admonition in Bilski that if “a high enough bar is not set when considering [the types of] patent applications” we see in the “Information Age,” then “patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change.”
We hope the Federal Circuit will agree to hear the case again so we can convince them to reverse this dangerous trend.