In 1986, Falco’s Rock Me Amadeus topped the charts, Madonna dedicated her hit single Papa Don’t Preach to Pope John Paul II, and a ruffle-clad David Bowie crooned along with funky Muppet goblins in Labyrinth. Meanwhile, although the World Wide Web didn’t even exist yet and cell phones were an expensive rarity, Congress was working on a new law to better protect our digital privacy by regulating when the government could access our private communications. That law, the Electronic Communications Privacy Act (ECPA), was signed on October 21, 1986.
After 25 years, ECPA is in dire need of an upgrade to reflect changing technology and ensure that the government can’t read our emails, track our cell phones, or watch where we go on the Web without first going to court and getting a search warrant. To help support the effort to reform ECPA, and in commemoration of the 25th anniversary of ECPA’s signing, EFF is joining Google, CDT, ACLU, CEI, TechFreedom, CCIA, and Americans for Tax Reform to throw the capital's most awesome party - Party Like It's 1986.
If you’re in Washington D.C., join us the evening of October 20th on Capitol Hill for an 80s-themed celebration of digital privacy: RSVP now!
Today, EFF joined nine human rights and digital freedom organizations from around the world in sending a letter to the government of Vietnam calling for the release of blogger and human rights defender Pham Minh Hoang.
Readers may remember Pham Minh Hoang from a blog post we wrote in August. Mr. Hoang is a university professor with dual French and Vietnamese citizenship who has been sentenced to three years in prison and an additional three years under house arrest, for trying to "overthrow the government." His crime was exercising a right held dear by much of the world: using the Internet to speak out. EFF, the Committee to Protect Journalists, ARTICLE 19, Reporters without Borders, and the other rights organizations are calling for the Vietnamese government to recognize Mr. Hoang's rights to free expression and release him.
Concerned individuals should send their own letters to Prime Minister Nguyen Tan Dung and the French Foreign Ministry, addresses below, to showcase the global outcry against this attack on online free speech.
October 4, 2011
Nguyen Tan Dung
Socialist Republic of Vietnam
Office of the State
1 Bach Thao
French Foreign Ministry
Ministere des Affaires etrangeres
37, Quai d’Orsay
Dear Prime Minister Nguyen Tan Dung,
We, international digital freedom and human rights organizations, call on the Government of Vietnam to release blogger, human rights defender, and lecturer Pham Minh Hoang.
Mr. Hoang, a dual French-Vietnamese citizen sentenced on August 10 to three years in prison and an additional three years house arrest, is a well-known blogger whose articles on education, the environment, and Vietnamese sovereignty in respect to China have been widely read. He is also a lecturer in applied mathematics at the Ho Chi Minh City Polytechnic Institute, an activist campaigning against bauxite mining by Chinese firms, and has participated in conferences on Vietnam’s sovereignty over the Paracel and Spratly Islands. Mr. Hoang has worked tirelessly to promote human rights and to empower and encourage civic participation among his pupils and peers.
At Mr. Hoang’s trial, Judge Vu Phi Long ruled that his writings had “blackened the image of the country” and were “aimed at overthrowing the people’s government.” Mr. Hoang, on the contrary, has claimed that he was exercising his free speech and was unaware that he had committed any crimes.
We would like to remind the Government of Vietnam that Mr. Hoang’s blogging activities, as well as his activism, are guaranteed by the Universal Declaration of Human Rights, the UN Declaration on Human Rights Defenders, and the International Covenant on Civil and Political Rights, to which Vietnam is a party to, as well as by Articles 35, 50, 53, and 69 of the Vietnamese Constitution.
We call on Vietnamese authorities to recognize Mr. Hoang’s right to expression, and to lift any charges or convictions related to his protected expressive activities, and—with these charges lifted—to ensure his release.
ACAT-France (Action des chrétiens pour l'abolition de la torture - France)
Committee of Concerned Scientists
Committee to Protect Journalists
Electronic Frontier Foundation
Front Line Defenders
Index on Censorship
Reporters Without Borders
Scholars at Risk
Now that the FCC’s “Open Internet” net neutrality rules have been published in the Federal Register, opening the door to legal challenges, the lawsuits are piling on.
On Friday, Verizon appealed the order in the Washington, D.C., Court of Appeals, arguing that the FCC overstepped its authority in issuing its net neutrality order. Verizon had filed a related claim back in January shortly after the rules were first released, but the court held that suit prior to Federal Register publication was premature. MetroPCS at the time lost a similar challenge on this basis; it has yet to refile post-publication.
Earlier in the week, Free Press filed a petition in the First Circuit for review of the rules. However, Free Press argued that the order doesn’t go far enough, objecting foremost to the relaxed requirements for wireless as opposed to wireline providers. (We agree this distinction is unwarranted.) At least three other groups have also contended that the rules need to be strengthened, with challenges in the Third, Fourth and Ninth Circuits.
These are the same rules that EFF weighed in on when they were first issued by the FCC in December. While we wholeheartedly support net neutrality in principle, we were concerned on two fronts about the Commission’s efforts. We objected to the FCC’s alleged bases for jurisdiction, which would seem to give it more or less unbridled authority to regulate the Internet. We also objected to the substance of the rules, which are riddled with loopholes that would blunt their effect. These include exemptions to the no-blocking requirements for efforts “to address copyright infringement”enabling traffic discrimination in the guise of protecting against unlawful contentand concessions for managed or special services, as well as the carve-outs for wireless operators. On the other hand, many noncommercial broadband Internet providers could be bound by the rules, discouraging public-minded Internet initiatives and innovation by imposing the burdens of FCC compliance.
The rules are due to go into effect November 20. But given past federal court rejection of similar FCC authority arguments and the legal challenges to date, we're not anticipating any quick resolutions.
Update: A Spanish translation of this post is available here.
Chilling Speech Through Violence
Bloggers in the Mexican border town of Nuevo Laredo are being terrorized by the Los Zetas drug cartel, which is trying to silence citizens who speak out against drug-related violence. On the morning of September 24th, police found the headless and mutilated body of a woman with a note referencing an alleged pseudonym, “La Nena de Laredo” (“Laredo Girl”), which she had used to post on Nuevo Laredo en Vivo ("Nuevo Laredo Live"). The woman, who has been identified in some reports as Maria Macias and in others as Marisol Marcias Castaneda, was reportedly an administrative manager at the Prima Hoy newspaper, and also moderated a chat room on Nuevo Laredo en Vivo.
The murder of "La Nena de Laredo" is the second such incident in the border town in as many weeks. On September 14th, police found two bodies hanging from a pedestrian bridge. Signs hanging near the bodies indicated that the still-unidentified man and woman had been killed in retaliation for denouncing the cartel’s activities on a social network. Because the bodies remain unidentified, it is impossible to confirm that the victims really did post to the social networking site, but the message to would-be bloggers, citizen journalists, and whistleblowers is loud and clear.
Throughout Mexico, traditional media outlets are no strangers to threats, kidnappings, and violence against journalists; such threats have often had the effect of forcing journalists to refrain from coverage of violence stemming from the drug trade. In some parts of Mexico, websites such as Blog del Narco and Frontera al Rojo Vivo and social media sites such as Facebook and Twitter are able to provide news about drug-related violence that is not being covered in local newspapers or on television. Posters sometimes use nicknames or pseudonyms to protect their identities, but the murder of "La Nena de Laredo" suggests that such measures are insufficient.
Pseudonyms, Tor, and HTTPS
EFF recommends that bloggers who are concerned about their security and safety should post under a pseudonym, use Tor to prevent eavesdroppers from seeing the sites they visit and prevent websites from collecting data that might reveal their physical location, and use HTTPS to encrypt their private communications when possible.
Some social media sites, such as Facebook and Google Plus, have policies that forbid the use of pseudonyms. These policies do not prevent users from making pseudonymous accounts, but they leave users vulnerable to account suspension. Both Facebook and Google Plus will suspend accounts if other users report them as pseudonymous or fake; it only takes a trivial effort by malicious parties to silence the opposition or quash dissent. Google Plus has instituted a grace period before suspension takes effect, which gives users the opportunity to export their data, but Google may not always apply its grace period consistently. Pseudonymous Facebook users may find themselves suspended without warning and without the opportunity to export their content or social graphs. Twitter, on the other hand, allows pseudonyms.
The good news is that Facebook, Twitter, and Google Plus all support HTTPS. To be sure that your connection to these services is encrypted at all times, EFF suggests using the HTTPS Everywhere extension for the Firefox browser. Note that some third-party applications on Facebook can cause an encrypted connection to "break."
Many of the local forums and social networking sites that ordinary Mexicans use to exchange news about drug cartel violence offer limited support for HTTPS or do not support it at all. Users should be circumspect about posting to these sites, keeping in mind that their chat room conversations and login credentials may be intercepted and read. Administrators of such websites can help to protect their users by taking the following steps:
Support the use of pseudonyms in forums and chat rooms.
Encourage users to download the Tor browser bundle and use Tor when viewing or posting to your site.
Minimize logging. Do not log the IP addresses of visitors to your site.
Support HTTPS throughout your site.
Configure your site to use HTTPS by default.
It is unclear what level of technological sophistication the drug cartels have brought to bear against social media users at this time, but it is clear that the cartels have access to considerable resources.
Twitter Rumors Prompt Legislation
In the meantime, Mexican politicians are facing criticism for going after rumors of violence instead of pursuing the real thing. In August, Gilberto Martinez Vera and Maria de Jesus Bravo Pagola were arrested in the state of Veracruz after they used Twitter to spread rumors of kidnappings and shootings at a local school. The charges against them included terrorism and sabotage, crimes that carry penalties of up to 30 years in jail. The arrest prompted widespread protests from civil liberties and human rights groups, who pointed out that the charges were vastly disproportionate to the alleged crime. The two were eventually released and the charges dropped, but not before Veracruz passed legislation creating a new offense of “Public Disturbance,” carrying a prison sentence of 1 to 4 years and a fine. Because the new additional the penal code was made after the incident had already taken place, Vera and Pagola cannot be charged with the new crime. The state of Tabasco has passed a similar law, mandating up to two years in jail for provoking “chaos or social insecurity” through telephone calls or online postings.
For now, individuals in Mexico using online platforms to criticize, satirize, or shed light on drug cartel violence are facing grave threats. EFF will continue to watch these developing threats to online freedom of expression in Mexico, encourage sites to take steps to protect the privacy and security of their users, and help users take steps to protect themselves.
Update: A significant edit was made to the original piece on which this commentary is based. See * for additional information.
In a recent Washington Timeseditorial titled “Internet trolls, Anonymity and the First Amendment,” Gayle Falkenthal declared that “the time has come to limit the ability of people to remain anonymous” online.* She argued that any benefit to online pseudonyms has long since dissipated and anonymous commenters have polluted the Internet “with false accusations and name-calling attacks.” Newspapers, she wrote, should ban them entirely.
This argument is not only inaccurate, it's also dangerous: online anonymity, while allowing trolls to act with impunity, also protects a range of people, from Syrian dissidents to small-town LGBT activists and plenty of others in between.
Unfortunately, many newspapers have already banned anonymous comments, and while not all have offered an explicit reasoning for their policies, "civility" is often cited as justification in discussions on online anonymity.
Of course, online civil discourse is something to strive for. Anyone who’s spent time reading YouTube comment threads is aware of the vitriolic bile spewing from the keyboards of largely anonymous masses. And it is a truism that when people speak using their true identity, they are more likely to think about the consequences of their speech.
But while identification brings about a greater sense of safety for some, for others, it presents a great risk. Think, for example, of victims of domestic abuse, whose online safety is predicated on not revealing their identity or location. Or the small-town schoolteacher who fears revealing her political views to her local community but seeks solidarity online. Or the gay teenager who wants to explore communities online but isn’t quite ready to come out. Or the myriad other examples compiled by the Geek Feminism blog.
Contrary to Ms. Falkenthal’s assertion that “The First Amendment guarantees freedom of speech, but not anonymity,” the Supreme Court has made these same arguments about safety and anonymity for decades. In 1960, the Court explicitly upheld a speaker’s right to remain anonymous,
In Talley v. California, Justice Black wrote “Anonymous pamphlets, leaflets, brochures, and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”
And in 1995, the Court upheld online speakers’ First Amendment right to remain anonymous, emphasizing, “protections for anonymous speech are vital to democratic discourse.” The court went on to say anonymous speech “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society.”
These principles are, of course, nothing new and date back to our country’s birth. Yet Ms. Falkenthal says, “When our nation was being formed, Thomas Paine and Benjamin Franklin stood behind their incendiary, treasonous views in public even at the risk of being hanged for what they said,” implying that the Founding Fathers would be against online anonymity if they were alive today.
However, Ms. Falkenthal herself later admits that Paine actually wrote his most influential work Common Sense anonymously, just as Franklin got his start writing under a name that was not his own, the pseudonym “Mrs. Silence Dogood.”
But no example illustrates the importance of anonymity more than The Federalist Papers. The series of essays, published in the nation’s most popular newspapers in 1778 under the pseudonym “Publius,” were instrumental in the ratification of the Constitution. Yet it was not until after Alexander Hamilton’s death in 1804 that the public discovered the essays had been written by Hamilton, along with James Madison and John Jay.
Lest readers believe that the age of the pseudonym is dead, more recently, the right to anonymity was vital for protesters in the Arab Spring: Wael Ghonim, the Google executive who was detained for more than a week in the height of Egypt’s uprising, had anonymously created the Facebook page “We are all Khaled Saeed,” widely credited as the driving force behind the successful revolution.
Bloggers in Syria are now faced with the same risks as Ghonim amidst a brutal crackdown on anti-government protests.
The complex questions currently faced by newspapers have been addressed before. One event in the earlier, pre-social media days of blogging brought to the forefront a discussion around online civil discourse. Back in 1997, following anonymous death threats made to prominent blogger and game developer Kathy Sierra, publishing magnate Tim O’Reilly proposed a Blogger’s Code of Conduct to improve discourse in the blogosphere. Though the code would have prohibited anonymity, requiring users to sign up with an e-mail address, it allowed one to display publicly a handle or username in lieu of a "real" name.
Sierra recently weighed in on the debate, stating “I am for preserving pseudonymity, and believe that eliminating it will never stop the worst of the trolls, griefers, haters, and stalkers. There are far better ways to help reduce the worst of anonymity-fueled behavior online including plain old moderation.”
Indeed, comment moderation is a simple and low-resource method by which newspapers can ensure comments remain civil. Most newspapers with large online readership, from the New York Times, to the UK’s Guardian, implement comment moderation in some form.
There will always be those for whom a name is not a barrier toward acting abusively; for those with little to lose, there’s no reason to hide. Inversely, those who stand to lose a lot by identifying online are those who need pseudonyms the most, to speak their mind freely, without fear of retribution.
*Authors' Note: Since the Washington Times first published Ms. Falkenthal's article on September 26, she has since edited the meaning of this key sentence without noting the change in the body of the piece. In the comments section, she admits she added the words "on someone else's website" to the end of this sentence, claiming it was not her "intent in saying the First Amendment doesn't guarantee anonymity was NOT meant to be global." This change was prompted by commenters who noticed the error - many of whom, it should be pointed out, were completely anonymous.
The year was 1986. Top Gun was the top movie, Super Mario Bros. 2 was the hot videogame, practically no one had ever heard of email, and mobile phones were clunky and expensive novelties the size of a brick.
On October 21st of that year, the President signed into law the Electronic Communications Privacy Act or "ECPA", to better protect our electronic privacy against unwarranted government snooping.
ECPA was forward-looking when Congress passed it, considering that the World Wide Web hadn't even been invented yet and that if you were savvy enough to have email you probably dialed up to a BBS to get it. But now, eons later in Internet time, technology has passed the law by.
ECPA has become outdated and the privacy standards that it applies to new technologies are unclear and often too weak. For example, the law doesn’t specifically address cell phone location tracking at all, and it allows the government to seize most emails without ever having to go to a judge. Meanwhile, no one is perfectly sure how it applies to newer online services like social networks and search engines. This gap between the law and the technology ultimately leaves everyone's privacy at risk.
Now, in the 21st century, when we store years-worth of our private emails in the Internet “cloud” and are all carrying tracking devices in our pockets in the form of our cell phones, we need an electronic privacy law upgrade that sends a clear message to law enforcement:
We at EFF have come together with a broad coalition of major Internet companies like Google and Microsoft and privacy organizations like the Center for Democracy & Technology and ACLU as part of the Digital Due Process coalition. The DDP coalition’s overriding goal is to transmit one simple message to Congress: If the government wants to track our cell phones, or see what web sites we’ve visited, or rummage through our Hotmail, or read our private messages on Facebook, or otherwise invade our electronic privacy, it should have to go to a judge and get a search warrant based on probable cause.
You can help us get that critical message to Congress just in time for ECPA’s 25th anniversary on October 21st. Join EFF, ACLU, CDT, the Bill of Rights Defense Committee, Americans for Tax Reform, the Competitive Enterprise Institute and TechFreedom in the fight to upgrade ECPA for the 21st century and sign our joint petition today.
And if you've already signed the petition, please remember to share it with your friends and social networking sites.
Just last year, the Humble Indie Bundle blazed onto the gaming scene with what seemed like an impossible business model: allow customers to pay what they want for DRM-free games, and let them choose how to distribute their contribution between the developers, the organizers, and two worthy tech charities. People supported EFF for online rights protection and Child's Play, which supplies games, toys, books, and cash to children’s hospitals. The result has been nothing short of miraculous, and we are happy to announce that the digital goodness is back with The Humble Frozen Synapse Bundle!
This iteration features the innovative tactical strategy game Frozen Synapse plus the game soundtrack. To sweeten the pot, customers who choose to give more than the average amount will also receive the entire Humble Frozenbyte Bundle suite, including Trine, Shadowgrounds: Survivor, Shadowgrounds, Splot, and Jack Claw!
We at EFF would like to extend our sincere gratitude to the generous gamers and forward-thinking indie game developers who have proven that a business can have a conscience, satisfy its customers, and thrive.
In what is becoming a well-settledpattern, Righthaven again finds itself on the losing end of a motion, with its case thrown out and owing the defendant – here, Leland Wolf, proprietor of the It Makes Sense Blog – costs and attorneys' fees for bringing a baseless copyright case. The lawsuit, Righthaven v. Wolf, is also notable for being the leading case among more than 50 that were filed in Colorado. Pending a motion to dismiss, the Colorado court stayed the remaining cases. With this ruling, the court has hopefully rung the death knell for the other remaining live cases in that district (joining the Nevada cases that have also been dismissed.)
Some background: In March, Righthaven sued Mr. Wolf for alleging infringing a Denver Post photograph titled “TSA Agent performs enhanced pat-downs," by virtue of a parody of the photo posted on his blog. Mr. Wolf moved to dismiss the case for lack of subject matter jurisdiction; EFF filed an amicus brief supporting that motion, explaining that Righthaven lacks ownership of any exclusive right granted under Section 106 of the Copyright Act.
Judge John L. Kane agreed, holding that Righthaven assigned to the Denver Post’s parent “the bare right to sue for infringement – no more, no less.” As such, Righthaven was neither a “legal owner” nor a “beneficial owner” of the copyright, and consequently could not bring a suit under the Copyright Act.
To its credit, the court also recognized the enormous pressure the prospect of statutory damages (on top of the expense of litigation) can place on defendants, even those with meritorious defenses, and called out Righthaven’s business model for the settlement mill that it tried to be:
[A] party with a bare right to sue may file numerous infringement actions of questionable merit with the intention of extorting settlement agreements from innocent users. This possibility becomes even more likely when the financial viability of the entity filing suit depends upon the proceeds from settlement agreements and infringement suits. Even though copyright law expressly provides for an award of costs and reasonable attorney fees to a party prevailing in its defense of a meritless infringement action, the economic realities of securing counsel and paying in advance the costs of litigation turns this remedy into a Potemkin Village. Both fundamentally and practically, the reality is at odds with the constitutional prioritization of public access to copyrighted works.
The court’s opinion also highlighted the important balance that the copyright laws are intended to protect. Specifically,
[C]opyright law necessarily balances the derivative goals of rewarding the creative labor of authors of original works with the primary goal of promoting further creativity by allowing public access to copyrighted works.
We are pleased that the Court refused to allow Righthaven to proceed with a lawsuit based on a copyright that it never owned and never had any plans to exploit. Finding otherwise would frustrate the important balance the court highlighted, and “the public interest in access to copyrighted materials.” Well done, Judge Kane.