In response to outrage over last week's shutdown of cell phone service in four San Francisco stations on rumors of a planned protest, BART officials have repeatedly claimed their decision was necessary to maintain public safety. BART spokesman Linton Johnson has gone so far as to invent a new Constitutional “right to safety” which trumps the First Amendment. As it happens, we are in full agreement that BART has an obligation to the safety of its passengers. We believe that working cell phones throughout the BART system do not pose a danger to riders; rather, they help to promote public safety.
Furthermore, BART riders agree with us, and if you go back to 2001, BART officials do too. BART made the decision to introduce cell phone service to trains and platforms shortly after 9/11, in response to popular demand from BART riders who saw that New Yorkers had found cell phones to be invaluable to communicating with authorities and loved ones in the midst of city-wide confusion.
And safety isn’t just about emergency situations. Every day, we rely on mobile technology to communicate for peace of mind—such as when a parent uses a cell phone to alert a babysitter that rush hour delays will prevent the timely pick up of a child.
EFF voiced its strong support for widespread availability of cell phone and wifi service in our comments to the FCC about the proposed Next Generation 911 system earlier this year:
Communications technology has made us steadily safer and safer for over
a century by making it ever cheaper and faster to tell people who can
help about problems in a timely way. The 911 system is a great triumph
that represents an important piece of this puzzle, but another piece is
simply making communications cheaper, more reliable, and more
ubiquitous. Even communications channels that cannot contact 911
services at all aid public safety by increasing the chance that someone
who can help will find out about a problem promptly.
By framing this issue as a decision between communication and safety, BART officials have presented a false choice. As one BART rider commented in the San Francisco Chronicle, “Haven’t we learned from the World Trade Center attacks that communication in any situation is necessary?”
Google announced yesterday that it has finally struck a deal with the National Music Publishers Association (NMPA) and it is calling the deal an important step forward in making sure publishers and songwriters benefit from the creative uses musicians and fans make of copyrighted compositions in YouTube videos. Equally important, the deal may reflect an increased willingness on the part of content owners to focus on how to compensate artists rather than lawyers.
That’s because the deal also settles years of litigation between Google and many music publishers over allegedly infringing works posted to YouTube. In that suit, the less-famous sibling of Viacom v. YouTube, music publishers and others seek to hold YouTube liable for the allegedly infringing acts of its users. Viacom, for its part, continues to squander its resources on a drag-out fight over activities that took place years ago (Viacom admits it is not challenging current activities on YouTube). The music publishers, by contrast, are looking forward.
While this strikes us as a generally a positive development, we continue to worry about the mechanism. The deal depends on Google’s Content ID system, which facilitates monetization but also makes it too easy for big media to run roughshod over users’ legal rights to make fair use of copyrighted works. We understand that Content ID has gotten more attractive to publishers as the technology has been improved to better identify compositions in addition to sound recordings (think of a cover of a Lady Gaga song as opposed to Lady Gaga singing that song). Note to Google: now that you've adapted the technology to better match the desires of content owners, it’s time to put your engineers and lawyers to work on another improvement: fixing Content ID (and the policies that go with it) so that monetization doesn’t come at the cost of trampling on fair uses.
Last week, TorrentFreak ran an interesting pair of posts offering opposing views on an issue that has become increasingly important with the rise of the copyright trolls: whether a person who runs an open wifi network can be held liable when others use the network for copyright infringement.
The problem with “online debates” like this is they can leave folks with the false impression that there are two equally valid approaches to a legal question. In this case, there aren't. The truth is that no court has ever found that anyone is liable simply because another user of his or her open wifi committed some legal wrong. Every day cafes, airports, libraries, laundromats, schools and individuals operate open wifi routers, happily sharing their connection with neighbors and passers by. Sometimes people use those connections for bad acts, most of the time they don’t, the world gets a valuable public service, and the open wifi providers are not liable.
One essay, by attorney Nicholas Ranallo, recognizes as much. Ranallo reviews the standard theories of copyright liability and concludes that no, operating an open wifi network does not make you liable for the activities of others using the network. The other piece, by attorney Marc Randazza, ignores those traditional theories in favor of an unprecedented claim based on negligence and a 1932 case about boats.
It's a creative theory. It's also wrong.
First, there is no negligence theory of copyright liability. Zip, none, nada. Only direct, vicarious and contributory (which includes inducement) (check Ranallo’s post for details on these). In fact, at least one federal judge has opined that the latter theories, called secondary or indirect liability, are also legally improper.
Second, even if there were such a theory, the operators of an open wifi network are a mere conduit for the communications of others, and often enjoy statutory immunities. Under the Digital Millennium Copyright Act, there is a safe harbor for service providers who offer “the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” That definition fits a provider of free public wifi as easily as a traditional DSL provider. Therefore, the open wifi operator may be able to claim the “safe harbor” protection from copyright liability offered by Section 512(a). There are certain prerequisites for this protection, but they are not difficult to meet.
Perhaps hoping to avoid this limitation, the essay suggests that operators can be held liable under a general tort theory of negligence (meaning, it's not a copyright claim, just a general injury claim). But that approach immediately crashes against another legal wall. Section 230 of the Communications Decency Act offers broad immunity from tort claims (including negligence) to providers of “interactive computer services” for claims arising from the activities of their users. The statute’s broad definition of interactive computer service includes “specifically a service or system that provides access to the Internet.” (emphasis added).
We would be shocked if any federal judge affirmed this negligence theory, and, even if a trial court judge did make the error, it would surely be corrected on appeal.
Unfortunately, no judge may ever be able to rule on it. The piece sets out one reason why: if a defendant claims the alleged infringement was the result of others using his network, the copyright owner may attempt to seize all of the defendant’s computers and depose his family, friends and neighbors. (Indeed, Randazza ominously touts avoidance of these heavy-handed tactics as a “benefit” of accepting his odd legal theory.) Query whether these tactics would be legally proper, for a host of reasons that go beyond this particular post, but for many open-wifi network operators, the expense and hassle of mounting a perfectly valid defense will not be worth the candle.
Randazza claims this negligence theory helps his clients enforce their rights against individuals who use the "open wifi defense" as an excuse to avoid liability for their own infringing activities. However, dishonest defendants are not a new problem for the law, and the solution is not to conjure up meritless legal claims that intimidate honest wifi operators.
The Electronic Frontier Foundation would like to thank all of the attendees at this year's Black Hat USA, Security BSidesLV, and DEF CON conferences in Las Vegas. We are humbled by the infosec community's outpouring of generosity to sustain EFF's work defending coders rights and upholding our freedoms online.
With the help of our donors and creative community efforts, we were able to raise over $85,000 for protection of online rights! This amount is comprised almost entirely of modest contributions, so thanks to everyone who renewed their EFF membership or threw a few bucks in the bucket. Every dollar and reference to our work makes a big difference in the life of an organization like ours. We are especially grateful to:
Our DEF CON 19 Getaway Contest participants (who raised nearly $8,000 together!), and our contest sponsors and prize donors: DEF CON, iSEC Partners, Vegas 2.0, and Ninja Networks (we <3 u BarKode!).
The Vegas 2.0 organizers and volunteers for helming their seventh annual blockbuster EFF fundraiser party theSummit, and raising a record $24,000 in a matter of hours! Thanks to the Google Data Liberation Front for sponsoring their bar.
Independent fundraisers at DEF CON, including: Stealth for bringing back the Hackers and Guns firearms training simulation; information desk staffers for taking up a collection; and DEF CON Kids for raising $900, while teaching hacklings about responsible disclosure.
Nate and Trey for dedicating their DEF CON weekend to the Diebold Accuvote TSx e-voting machine and its many vulnerabilities. Through unflagging determination, they along with e-voting expert Alex Halderman began decrypting past election results and educated onlookers about the machine.
Jeff Moss and the Black Hat and DEF CON teams for their ongoing support in our fight to protect you.
In a town known for excess, we were impressed by the goodwill shown to EFF and beyond. Cheers to everyone who got chopped by Mohawk-Con to benefit charity (we hope you chose us!), thanks to the DEF CON Scavenger Hunt for including EFF, and much respect to those who joined the Be the Match bone marrow donor registry.
But your opportunity to give isn't over! The DEF CON skateboard deck auction is back! The deck is signed by DEF CON 19 speakers and tech luminaries including Mikko, Hypponen, Major Malfuntion, Jericho, Renderman, Mouse, Schuyler Towne, Myrcurial, and many more. Proceeds will be divided between EFF and the Online Privacy Foundation. Help us cross the $5,000 mark to bring the total this year to $90,000! Click the image below to check out the auction.
Donors like you fund our activism and our work in the courts so every bit helps. Learn more about the continuing fight for your rights in cases like U.S. v. Fricosu, in which we argue that law enforcement should not be able to compel the defendant to give up the password to her encrypted computer. Information about this case and more affecting the security community can be found on our Coders Rights page. And don't forget that you can contact EFF if you have questions about presenting your security research. Thank you for supporting this important work.
Dan Ward, attorney to pro-democracy activist and blogger Du Daobin, issued a statement yesterday that noted the efficacy of EFF's campaign to spread awareness about Cisco’s responsibilities to stand up for human rights:
As I have previously stated, recent events lead us to believe that the safety of our clients in Du v. Cisco is dependent, in no small part, on the fact that the world is watching.
We were heartened to know that the actions of EFF supporters are safeguarding the lives and safety of activists in China. If you haven’t done so already, please sign our petition calling on Cisco to stand up for human rights and intervene on behalf of Du Daobin. By sending Cisco these emails, we can help keep Du Daobin and the other plaintiffs in the case safe — so they can argue their precedent-setting legal case against Cisco Systems.
We’re also glad to see that news outlets are beginning to report on the issue and educate their readers about the upcoming lawsuit and the dangers facing the plaintiffs involved. The Sydney Morning Herald published a
">lengthy article about the case against Cisco yesterday:
Cisco has publicly stated that it helped the CCP build its Golden Shield and Policenet systems. In the legal complaint, seen by Fairfax Media, Cisco is accused of training Chinese engineers in how to use its technology to carry out surveillance of online activity and suppress dissident activity.
"With the assistance of Cisco, the CCP is now capable of detecting, identifying and tracking perceived threats to the CCP's power, and blocking 'harmful' websites," the complaint reads.
EFF will continue to follow developments around Du Daobin and his co-plaintiffs, and we'll be exploring the issue of corporate social responsibility in future blog posts. Please do your part to help keep these activists safe by signing our petition and sharing the petition with others.
In Egypt, an activist and blogger is facing trial for a Tweet. Asmaa Mahfouz, a prominent young activist, is facing trial by court martial for defaming the ruling Supreme Council of Armed Forces (SCAF) by posting to Twitter:
If the judiciary doesn't give us our rights, nobody should be surprised if militant groups appear and conduct a series of assassinations because there is no law and there is no judiciary.
According to a statement from Reporters without Borders, Mahfouz is also being charged with inciting violence, disturbing public order and spreading false information via her Twitter account. Mahfouz has defended her statements, saying "There is no truth in these accusations, I was only warning the military council that the absence of justice will lead to chaos."
EFF condemns the decision of the SCAF to prosecute Mahfouz and urges the Egyptian military to respect the right to free expression.
Argentinian telecoms regulator issues notice to ISPs to block websites
According to a report in TechEye, Argentina’s National Telecommunications Commission (CNC) has responded to an order (in Spanish) from Federal Judge Sergio Torres to block two websites by issuing a directive to local ISPs. The judge’s decision was in response to the creation of two websites--leakymails.com and leakymails.blogspot.com--that linked to allegedly leaked emails from members of the Argentine government.
Interestingly, as the latter website is hosted on a Google product, Argentine authorities could have issued a request to Google to remove the content, as they have done in the past.
Rather than ridding the Internet of offending content, blocking the sites appears to have triggered the Streisand Effect; on Twitter, @LeakyMails has been posting links to mirrored versions of the blocked content.
As Renata Avila argues on Global Voices Advocacy, "the order to preemptively block a Website before a criminal conviction might be against the American Convention on Human Rights, a binding treaty for Argentina, which establishes on its article 13 ‘Freedom of Thought and Expression’."
Article 13 also provides that the exercise of such rights shall not be subject to prior censorship but shall be subject to subsequent imposition of liability.
In July, EFF noted an escalation in online censorship in Pakistan. As the country’s Constitution guarantees the right to free speech (with a few notable exceptions, including a prohibition on the publication and display of obscene content), this latest trend toward repression of political speech is particularly troubling.
Join us on Wednesday, August 31st at Burning Man! EFF's Speakeasy events are free, informal member gatherings that give you a chance to mingle with fellow EFF supporters and meet the people behind the world's leading digital civil liberties organization. It is also our chance to thank you, the EFF members who make this work possible. In the spirit of Burning Man, EFF is welcoming all supporters, well-wishers, and friends on the playa to gather and celebrate online (and offline) freedom.
Speakeasy: Burning Man takes place during the Playa Talks on Digital Freedom and Human Rights held at Camp Above the Limit in the Crystal Cavern, a large geodesic dome festooned with 18-foot fluorescent crystals. As is customary at Burning Man, bring your own cup, contribute some libations or snacks to this communal event, and leave no trace after you depart.
This week, EFF has seen censorship stories move closer and closer to home — first Iran, then the UK, and now San Francisco, an early locus of the modern free speech movement. Operators of the Bay Area Rapid Transit system (BART) shut down cell phone service to four stations in downtown San Francisco yesterday in response to a planned protest. Last month, protesters disrupted BART service in response to the fatal shooting of Charles Blair Hill by BART police on July 3rd. Thursday’s protest failed to materialize, possibly because the disruption of cell phone service made organization and coordination difficult.
Early reports indicated that BART cut off cell phone service by approaching carriers directly and asking them to turn service off. Later statements by James Allison, deputy chief communications officer for BART, assert “BART staff or contractors shut down power to the nodes and alerted the cell carriers” after the fact. AT&T, Sprint, Verizon, and T-Mobile have not yet made comment as to whether or not they were complicit in the shutdown.
Obviously, we'd like to know exactly what the carriers said to BART, but many other unanswered questions remain as well. Was pulling the plug on people's phones a quick, on-the-spot decision, or part of a protest-response plan vetted by BART's lawyers? Who decided that blocking all cellphone calls at these BART stations was the right response to news that there might be a protest? Were the carriers ever in the loop about this plan or action? Who decided that the news of this planned protest justified the shutdown? How do we know this isn't going to happen again?
Indeed, BART said today that it had instituted the following rules, including:
No person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms.
What does that mean? We can't talk?
One thing is clear, whether it’s BART or the cell phone carriers that were responsible for the shut-off, cutting off cell phone service in response to a planned protest is a shameful attack on free speech. BART officials are showing themselves to be of a mind with the former president of Egypt, Hosni Mubarak, who ordered the shutdown of cell phone service in Tahrir Square in response to peaceful, democratic protests earlier this year. Free speech advocates have called out British Prime Minister David Cameron for considering new, broad censorship powers over social networks and mobile communication in the UK, and we are appalled to see measures that go beyond anything Cameron has proposed being used here in the United States.
Cell phone service has not always been available in BART stations. The advent of reliable service inside of stations is relatively recent. But once BART made the service available, cutting it off in order to prevent the organization of a protest constitutes a prior restraint on the free speech rights of every person in the station, whether they’re a protester or a commuter. Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.