At the beginning of June, EFF issued its Tor Challenge, calling on individuals and organizations to set up Tor relays to strengthen the Tor network and help Internet activists all over the world. Then we added the Poster Challenge, offering a Molly Crabapple poster to anyone who set up five or more relays. Today we’re unveiling the final achievement in our Tor Challenge: the Tor Video Challenge.
Tor is a service that helps you to protect your anonymity while using the Internet. Internet activists depend on Tor to maintain their anonymity online and access websites that have been blocked by their governments. The Tor network depends on volunteers to operate relays, but setting up a relay for the first time can be a tricky and confusing process for some. That’s why EFF has launched the Tor Video Challenge.
We’re asking for participants to create instructional videos that explain how to set up Tor relays on different operating systems – and compete to win awesome prizes and props from EFF. We’ve already made the first video, showing people how to set up a Tor relay on a Mac. Now we want other videos to explain how to set up Tor on different operating systems. Be creative! Videos can be funny, cute, scary, serious – but they must show users the steps they need to take in order to run a Tor relay in one of the six operating system categories. Please see the Official Rules for minimum standards and other requirements.
The videos which are created will be useful to Internet users for months or even years to come. By taking part, you’ll be helping others help Tor – creating a ripple effect for defending online privacy and anonymity.
A panel of experts will be judging each video on accuracy and clarity, creativity and entertainment value, and how well it promotes EFF values, especially anonymity and freedom of expression. This contest is open to all US residents over the age of 18. Videos must be submitted by July 5th, 2011. We will be judging videos in the following categories: (1) Windows 7, (2) Windows XP, (3) Debian-based Linux, (4) Red Hat-based Linux, (5) Other Unix-based Operating Systems, and (6) Setting up Virtual Machines. Videos should be less than six minutes in length and must be licensed using the Creative Commons Attribution 3.0 license. Check out the detailed rules.
To enter you must upload1 an original video that you have personally created to a hosting site of your choice and send the link to email@example.com. This email must include a first and last name with your email address, and physical addresses where we can send your prize if you are the winner.2
Winners will be announced by July 12th. Winners will receive a gorgeous poster about Tor by New York artist Molly Crabapple, signed by the EFF staff. Winning videos may be showcased on our Setting Up Tor page .
Got questions? Email firstname.lastname@example.org.
1. We suggest using a video sharing site such as YouTube, Vimeo, or blip.tv that allows you to attach a Creative Commons Attribution license to your Video. You may need to register with that site. Once you have created your Video, upload it to the hosting site of your choice and take the steps necessary to make it public and licensed as Creative Commons Attribution.
In a move that could have a profound impact on Fourth Amendment law, the Supreme Court has agreed to consider a question that has split the nation's appeals courts: can the police install and use a GPS tracking device to follow a person's movements around the clock every day for a month—without a search warrant?
The Supreme Court granted certiorari (pdf) today in United States v. Jones (once known as United States v. Maynard). In this case, FBI agents planted a GPS device on Antoine Jones' car while it was on private property and tracked the location of the vehicle for a full month without a warrant. Jones challenged the surveillance tactic, arguing that it violated his Fourth Amendment right against unreasonable search and seizure.
The United States Court of Appeals for the District of Columbia Circuit ruled last summer that the government's prolonged use of the device to track Jones' car required a search warrant based on probable cause, noting, "When it comes to privacy . . . the whole may be more revealing than the parts." The court went on to explain:
It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.
EFF and the ACLU of the National Capital Area partnered on an amicus brief (pdf) in the D.C. Circuit, arguing that warrantless GPS surveillance would open the door for police to abuse their authority and continuously track anyone's physical location for any reason—without ever having to show a judge that such monitoring is justified.
Other appeals courts have grappled with the question of warrantless GPS tracking, deciding under othercircumstances that such surveillance is constitutional.
In Jones, the Supreme Court will review two specific questions:
Whether the warrantless use of a tracking device on Jones' vehicle to monitor its movements on public streets violated the Fourth Amendment, and
Whether the government violated Jones' Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
EFF will continue to be involved as the Supreme Court weighs this important case. Stay tuned...
A federal appellate court this week issued a fascinating decision on whether the much-maligned “hot news doctrine” – which confers a quasi-property right in facts -- will survive in the digital age. The answer? Yes, but barely, and not as an easy way to defend an outdated business model.
The defendant in the case, TheFlyOnTheWall.com, runs a financial news service that gathered and reported on stock recommendations from investment banking firms like Merrill Lynch, Morgan Stanley, and Lehman Brothers (the"Firms") and reported them on its website. The Firms claimed that the information was "hot news" and that Fly was free-riding on the firms' work in creating the recommendations. A federal court agreed, and ordered Fly to delay reporting of the information for two hours after the reports are released.
The Second Circuit Court of Appeals reversed that holding. After a lengthy disquisition on the history of the doctrine (including a detailed analysis of its own landmark decision in NBA v. Motorola, most of which it treated as dicta, or nonbinding), the court found that the tort survives only in the narrow circumstance (the opinion uses the term “narrow” repeatedly) where a party is truly “free-riding.” Otherwise it is preempted by the Copyright Act, which forbids ownership claims in facts, or news of the day.
Free-riding, the court stressed, is not a matter of “fairness” or morality. The Firms had complained vociferously that Fly’s rapid reporting on their recommendations – made possible in part by new technologies – was impairing their traditional business model, which, they said, depends upon controlling the dissemination of their research reports. Said the court:
The adoption of a new technology that injures or destroys present business models is commonplace. Whether fair or not, that cannot, without more, be prevented by application of the misappropriation tort.
Fly, the court decided, was not free-riding because it was reporting on the fact of the Firms’ recommendations -- not attempting to pass those recommendations off as its own.
The Firms are making news; Fly, despite the Firms’ understandable desire to protect their business model, is breaking it.
Several amici, including EFF (joined by Citizen Media Law Project and Public Citizen), Google, and Twitter, had urged the court to consider the doctrine in light of the First Amendment. The court largely declined. Too bad – it still seems strange to us that this vestigial doctrine that clearly impacts speech about news of the day has never received First Amendment scrutiny. That scrutiny seems especially necessary now, when the Internet is increasingly allowing Americans to publicly gather, share, and comment on the news of the day. Misuse of the "hot news" doctrine could stifle this extraordinary growth of free expression.
This is a pretty good outcome nonetheless: the high bar that the court sets for applying this dangerous doctrine will help ensure it is rarely used.
Efforts to harness law enforcement resources in the service of copyright enforcement continueapace. Last Thursday, the so-called "illegal streaming” bill passed the Senate Judiciary Committee (although that's still some way away from becoming law). The bill would increase criminal copyright penalties to allow jail time of up to five years for infringing a copyright by “publicly performing” the copyrighted work, such as playing a sporting event broadcast or motion picture. (Currently, the maximum criminal penalty for unlawful public performance is a fine and/or prison sentence of up to one year.) Fortunately, there are limitations on when the new criminal penalties would apply. For example, only 10 or more unlawful public performances within a 180-day period would trigger the provisions. In addition, the current criminal statute contains basic thresholds such as a requirement that the infringement be willful.
The basis for the bill appears to derive from a list of legislative requests issued earlier this year by the Obama Administration’s IP Enforcement Coordinator, including a recommendation to establish that online streaming of infringing content can be punished as a felony. The push to increase penalties from misdemeanor (which they are now) to felony (which they would be under the bill) apparently is being driven in part by abelief that law enforcement will be more motivated to prosecute crimes that have more severe penalties, no matter that the criminal laws are supposed to be designed to deter and punish bad guys, not instigate good guys. We have to question the judiciousness of devoting spare government resources to prosecuting this kind of activity. It seems to us that illegal public performance is the kind of economic concern that can be effectively managed through existing civil remedies. Moreover, criminal copyright prosecutions need to show all the elements of civil copyright infringement, something civil courts are traditionally much better versed in.
In general, a “public performance” of a work under the Copyright Act occurs when a work is performed before a substantial gathering of people (for example, a concert) or when the work is transmitted in a way that it can be accessed by members of the public, even if individuals receive the performance in different places or at different times (for example, a TV broadcast).
As an initial matter, it’s hard to narrow the kinds of activities such a bill could potentially encompass. Practically speaking we wouldn’t expect to see most of these pursued or prevailing; however, uncertainty and the fear of prosecution and defense expenses could well discourage innovation in online services and lawful speech.
For example, while the legislation conceivably could capture hosting platforms like YouTube and caching services like Akamai, the lack of volitional conduct on the services’ part likely exonerates them. Presumably, too, one who merely embeds or links to a video would not be deemed to be making a public performance. Although at least one court has found copyright infringement where a website streamed content inline from another website, we believe that case was wrongly decided. On the other hand, ongoing law enforcement efforts to invoke provisions of the criminal law to seize domain names of websites that link to streaming content suggest that linking may yet be a target.
Online video distributors and providers of subscription TV services who rely on statutory licenses may have more pronounced concerns given that a violation of those licenses might appear to risk triggering the felony provisions. Likewise, copyright holders may use the threat of prosecution as leverage against broadcasters who transmit content pursuant to a license under dispute.
As for the individual who believes she is making a fair use of copyrighted work, she’ll want to be pretty confident or hope she can argue other thresholds in the bill are not met. It doesn’t seem likely this is the kind of activity prosecutors will pursue; then again, who wants to take a chance on five years’ jail time?
Today EFF filed a "friend of the court" brief (pdf) urging the Ninth Circuit Court of Appeals to reconsider its troubling decision (pdf) that employees face jail time when they access work computers for purposes that violate company policy.
In United States v. Nosal, the former employee of an executive recruiting firm convinced current employees to access the company's proprietary database and pass along information that he could use for competitive advantage. The company's computer-use policy, however, said that employees were only allowed to access the database to further the company's business interests. The government prosecuted the former employee under the federal Computer Fraud and Abuse Act (CFAA), arguing that his accomplices had authority to access the database for some purposes, but exceeded that authority when they accessed it for a purpose that violated corporate policy. Unfortunately, the Ninth Circuit agreed.
This is a dangerous precedent because it gives employers the power to make behavior illegal just by saying in a written policy that it's not allowed. For example, a worker could be sued or prosecuted for reading personal email or checking the score of a baseball game if her employer's policy says that company computers may be used only for work.
That might sound far-fetched, but it's not. Earlier this year, a company sued (pdf) a former employee under the CFAA for making too much personal use of the Internet at work in violation of company policy—apparently in retaliation for a wrongful termination lawsuit that she filed first. The court dismissed (pdf) the company's claim, but Nosal gives a solid foothold to those who would make similar arguments in the future.
We hope the Ninth Circuit will reconsider its approach in this case. The CFAA is broad enough already—it shouldn't be interpreted to criminalize the everyday behavior of millions of employees and (potentially) Internet users.
Starting next month, the vast majority of Australia’s Internet users will find their access censored, following a decision by the country’s two largest providers--Telstra and Optus--as well as two smaller ISPs (itExtreme and Webshield), to voluntarily block more than 500 websites from view.
The decision from the two ISPs comes after numerous failed attempts by the Australian government to set up a centralized filtering plan.
In the new voluntary scheme, ISPs will block sites containing “the appropriate subsection of the Australian Communications and Media Authority (ACMA) blacklist as well as child abuse URLs that are provided by reputable international organisations,” according to News.com.au.
The problem with such a plan is multi-layered: First, there is no transparency in the selection of URLs to be blacklisted, and no accountability from the regulatory bodies creating the blacklists. The “reputable international organizations” providing child abuse URLs have not been named, but may include the Internet Watch Foundation, a UK-based organization that in 2008 advised UK ISPs to block a Wikipedia page containing an album cover from the 1970s that they deemed might be illegal.
The ACMA itself has run into problems with its blacklist as well. After Wikileaks published the regulator’s blacklist in 2009, it was discovered that the list contained the website of a Queensland-based dentist, as well as numerous other sites unrelated to child sexual abuse or illegal pornography.
Second, filtering does little to curb the trade of child pornography, much of which is traded across peer to peer networks and VPNs. Filtering it from the world wide web may simply push it further underground.
Third, there appears to be no appeals process in the Australian ISPs’ scheme, thereby making it difficult for sites erroneously caught up in the filter to challenge the block.
Lastly, the introduction of a filter sets precedent for the ISPs to filter more sites in the future at the behest of the ACMA. If the ACMA were to make the decision that sites deemed "indecent" or politically controversial--for example--should be off-limits, would the ISPs comply?
This month, the New York Timesreported that the FBI has updated its internal domestic investigations guidelines to provide its agents with “significant new powers.” According to the Times, this update will provide agents with “more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.” These changes are especially troubling as they come on the heels of the Obama Administration’s efforts to extend FBI Director Robert Mueller’s term and on recent reports that the Bureau has once again engaged in controversial surveillance activities directed at “prominent peace activists and politically-active labor organizers.”
The FBI’s Domestic Investigations and Operations Guide (also known as the “DIOG”) is a collection of procedures, standards, approval levels, and explanations, created by the FBI, that implements current Attorney General’s Guidelines as they apply to Bureau investigations.
The Bureau most recently updated the DIOG in 2008, after then-Attorney General Mukasey introduced new AG Guidelines that reduced restrictions on certain surveillance protocols by allowing agents to open investigative “assessments” on Americans and American organizations. As we wrote in a blog post at the time, these assessments, which are still in use today, “allow the use of intrusive techniques to surreptitiously collect information on people suspected of no wrongdoing and no connection with any foreign entity.” Even though the DIOG impacts all domestic investigations, the FBI failed to release the 2008 DIOG publicly until EFF filed a FOIA request and later a lawsuit in 2009.
The recent announcement that FBI has once again updated the DIOG to further relax restrictions on invasive investigatory techniques follows the Obama Administration’s push to extend the 10-year term of the FBI Director, which is set to expire this year. The convergence of these two events—the amendment to the DIOG and the proposed extension of the FBI Director’s term—is important. Both were put in place 35 years ago in direct response to the extensive FBI abuses that occurred in the 60s and 70s during the nearly 50-year reign of the FBI’s first director, J. Edgar Hoover.
In the last few years, the DOJ Inspector General found in several reports available here, here, here, and here (all pdfs) that the FBI engaged in significant abuses during Director Mueller’s term as well, including investigating domestic advocacy organizations and engaging in illegal electronic surveillance practices that resulted in what the DOJ IG described as "an egregious breakdown" in the FBI's responsibility to comply with the Electronic Communications Privacy Act. Last fall, the IG also investigated and uncovered “significant abuses and cheating” on an exam that all FBI agents, analysts, and technicians must take on implementing the DIOG, (SeeInvestigation of Allegations of Cheating on the FBI’s Domestic Investigations and Operations Guide (DIOG) Exam, September 2010 (pdf) at p. 30), suggesting the Bureau does not take seriously the training of its staff on these important rules.
None of these events inspire confidence that the Bureau is doing as much as it should to protect our civil liberties. Although Valerie Caproni, the FBI’s general counsel, has described the latest changes to the DIOG as “more like fine-tuning than major changes,” the changes would allow much broader FBI surveillance of our private and protected activities with much less oversight. In one of the most problematic changes, agents will now be allowed to search for information about a person in a commercial or law enforcement database without any firm evidence for suspecting criminal or terrorist activity and without making any record of their search. Not requiring agents to put information uncovered from these searches into F.B.I. files unless they later opened an assessment will undoubtedly make it much harder to detect and prevent agents from using these databases for non-intelligence related purposes and may in fact overstep the AG Guidelines by creating a new “pre-assessment” stage.
The new Guidelines include additional important changes. For example, the Times notes “the new manual says an agent or an informant may surreptitiously attend up to five meetings” of any group, including those organized for political purposes, before the agent or informant is subject to any rules that would restrict such speech-suppressing activities. The FBI used these tactics recently to infiltrate activists’ circles in the Midwest and Arizona by posing as a lesbian mother to befriend lesbians with small children and by infiltrating political meetings to befriend anarchists. Further, the new Guidelines will relax restrictions on administering lie-detector tests and searching people’s trash and will also allow agents to use secret surveillance squads repeatedly to track targets..
Although the Times provides some information on the new Guidelines, the FBI has not yet made the 2011 DIOG available to the public. This was the same story three years ago, before EFF filed its FOIA lawsuit. At that time the Bureau repeatedlystated its interest in public and lawmaker comments on the 2008 updates, despite the fact that it never made a complete copy available to the public (even the 2008 version released to EFF (available here) was heavily redacted). The Bureau also stated at the time that it “had very substantial outreach to privacy and civil liberties groups”—as if to imply that consulting with these groups ensured the DIOG would protect Americans’ privacy and civil liberties and thus these groups had added their stamp of approval.
We hope the FBI is not planning to repeat this charade in 2011. On Friday, Senators Leahy and Grassley sent a letter to FBI Director Robert Mueller, urging the FBI to provide an updated briefing to the Senate Judiciary Committee on proposed changes to the DIOG. Apparently, the Committee has not been briefed on the revisions since sometime last year.
The Senate Judiciary Committee approved an extension to Mueller’s term on June 16, and Congress will vote on it some time before August 3. It is crucial that Congress and the public at large have access to the new DIOG before that time so that Americans can fully analyze and debate the implications of the unprecedented (and perhaps unconstitutional) proposal to extend the FBI Director’s term.
Apple has been much maligned in the press recently for filing a patent application covering a camera system with infrared technology that could, among other things, allow the recording functionality to be shut off by a third party. For example, in its application, Apple shows how the technology could be used to "prevent illegal image capturing" at a rock concert.
To us, this sounds like a familiar story: one where the content industry pressures technology companies—or, Congress—to limit fans’ ability to access and share their content, even when that sharing is perfectly legal. As we’ve said before, it’s a real shame when the promise of innovation is stifled by Hollywood’s demands.
But this time, there is an even more real threat. The availability of mobile phones with video capability has allowed activists around the world the ability to capture and disseminate important footage, often in the absence of news reporting. If a government were to gain access to and utilize Apple’s technology, the result could mean disastrous consequences.
Of course, in merely prosecuting a patent application, Apple has not signaled any concrete plans to actually use this technology. And the technology does promise some exciting features, too, like allowing users to take a photo of an object (say, an item in a store or exhibit in a museum) and get instant information on that object, and allowing for watermarking (which would make it easy to tag all photos and video from a certain timeframe as, say, “Miami 2011”).
To be clear, we should not fear this one patent application, but rather the larger technology that may be captured by governments and implemented in widespread standards that could have serious consequences, for example, by shutting down citizens’ ability to capture and disseminate video. The technology in this patent just may be a harbinger of that, and—for that reason—we will continue to watch it closely.