We and many other Internet freedom advocates have been closely watching the prosecution of Chiranuch Premchaiporn, the director of a popular alternative Thai news portal. Chiranuch, also known by her online handle Jiew, is being charged for defamation of the Thai royal family, or lèse majesté, under a particularly disquieting set of conditions.
The disturbing part about this case is that Jiew is being prosecuted not because of anything she said, but instead for being the director and webmaster of a news site where pseudonymous visitors submitted comments and posts that the Thai government considered to be inappropriate. Internet freedom advocates have documented how unclear and subjectively interpreted laws, such as those that punish lèse majesté, have been used in recent years to censor political commentary and chill freedom of expression, but what is particularly worrisome in this case is that a mere intermediary could be held liable for lèse majesté thanks to Thailand's Computer-Related Crime Act.
Followers of Internet freedom issues are probably becoming very familiar with the recurring concept of the "Internet intermediary," a way to refer to any of the the many different kinds of entities that receive, host, and transmit communications on the Internet. Free expression on the Internet relies upon Internet intermediaries having clear limitations on liability for hosting and transmitting content. Without clear, fair rules, fear of liability will force Internet intermediaries into adopting objectionable, inefficient policies, like monitoring content passing through their networks, and restricting what users can post on their platforms. Across the world, we're witnessing increasing efforts by governments and corporations to put pressure on Internet intermediaries to act as network police — pushing ISPs and websites to throttle, filter, block, monitor, and censor.
With that in mind, it's clear why the case raises serious concerns about Internet freedom in Thailand. First, Jiew is facing decades in prison simply for being a journalist and a webmaster, a distressing outcome that has Amnesty International condemning her arrest and trial. More broadly, if Jiew were convicted it could set a de facto precedent that will chill online innovation and free expression in Thailand. The threat of prosecution under Thailand's recently enacted Computer-Related Crime Act of 2007 could be used to intimidate companies and organizations that enable online speech to function, resulting in self-censorship by ISPs and websites fearful of running afoul of government censors. In his coverage of the trial, anti-censorship activist CJ Hinke sharply characterizes the climate of fear being generated by the case: "[The] Government draws its line in the sand but never tells netizens where it is so we never know when we are crossing into criminality."
For more about Jiew's plight and censorship in Thailand, follow Freedom Against Censorship Thailand's coverage of the start of her trial (Days 1, 2, 3, 4, and 5). (Due to court scheduling conflicts, the next part of her trial will resume in September.) You can also learn more about Jiew and her work from an EFF interview with her from October 2010.
Two hearings tomorrow—one in court and one in Congress—will highlight the brewing debate over whether Congress should expand federal surveillance laws to force Internet communications service providers like Facebook, Google and Skype to build technical backdoors into their systems to enable government wiretapping.
• Then, at 1:30 PST in San Francisco, EFF Staff Attorney Jennifer Lynch will argue in federal court for an end to the government’s stalling on the release of documents about the government's Internet surveillance plan that EFF is seeking under the Freedom of Information Act.
We filed that FOIA lawsuit last fall, shortly after the New York Times first revealed the FBI’s push to convince Congress to expand “CALEA”—the Communications Assistance for Law Enforcement Act of 1994—to require online communications service providers to redesign their systems to accommodate the government’s interception of internet communications. As we’ve said before, EFF thinks that any expansion of CALEA would be the very definition of a badidea, an “anti-privacy, anti-security, anti-innovation solution in search of a problem.”
The exact contours of the forthcoming proposal are unclear—the White House, the Justice Department and various agencies are apparently still haggling internally over what the Administration’s position is. However, as we discuss further here, it appears the Justice Department has been developing its strategy to update federal surveillance laws since at least 2006. And the FBI’s wish list as reported in the New York Times is dangerously expansive:
Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages.
Hopefully, the FBI’s top lawyer Valerie Caproni—the primary source for the Times’ reporting—will give more specifics about the forthcoming proposal in tomorrow morning’s Congressional hearing, as she is one of two law enforcement representatives there to plead the government’s case. Thankfully, the third witness will be renowned security and surveillance expert Dr. Susan Landau, who will be sounding alarms about the security risks posed by building wiretap-ability into our communications services.
Ironically, the very same morning that the Justice Department will testify to Congress on the issue of Internet wiretapping, it will also argue in court that the issue is not of such public concern as to warrant expedited release of CALEA-related documents in response to EFF’s FOIA lawsuit. The government says it won’t be able to release the documents that EFF is entitled to until August of 2012, by which time the debate over CALEA may have already ended; we will be asking the court to order the documents released within ten days, so that Congress and the public are fully informed on this critical and time-sensitive issue.
As tomorrow’s two hearings makes clear, the fight over the future of wiretapping on the Internet is just beginning. So stay tuned to the Deeplinks Blog to hear about the results of both hearings, as we continue to try to get to the bottom of the FBI’s plan to turn our Internet into their surveillance network.
As legislators in DC contemplate expanding government copyright enforcement powers, there's new reason to worry that government agents are misusing the Internet policing powers they already have -- with disastrous consequences for thousands of innocent bystanders. Torrentfreak is reporting that the Department of Homeland Security's ICE agents temporarily shut down 84,000 websites, possibly by accident, in the name of shutting down just ten websites that allegedly contained child pornography.
We're still getting a handle on the details, but it appears that the government took down all sites associated with a dynamic DNS service called afraid.org, in particular subdomains beneath mooo.com. One or more of the subdomains may have been hosting child porn, but instead of seizing that subdomain alone, the takedown targeted mooo.com. What is worse, it also appears that the perfectly legal sites were temporarily plastered with a notice suggesting they trafficked in child porn.
We'll keep watching this one -- we'd really like to see the actual seizure order -- but what we've heard so far raises serious free speech problems. Simply put, an order taking down a legal website is a prior restraint on speech, and we don't generally allow such an order unless the restraint is narrowly tailored to a specific and lawful objective. This takedown appears to have been anything but "narrowly tailored."
To be clear, this government action involved allegations of child porn rather than copyright infringement, but we have certainly seen the same kind of overreaching from ICE agents in recent copyright takedowns as well. Legislators considering the future of online copyright enforcement (including effective website censorship powers) should take heed: given the collateral damage to free speech rights that can occur with existing enforcement methods, this is no time to give government agents new ways to interfere with the Internet's domain name system.
EFF, the ACLU, and others were in court Tuesday to try to block government attempts to obtain Twitter account records about three individuals in connection to its WikiLeaks investigation. We also asked the judge to reveal whether any other companies had received similar orders from the government.
As EFF Legal Director Cindy Cohn told Bloomberg today:
There are First Amendment implications because information being sought pertains to speech...We also think there are Fourth Amendment implications because some of the information reveals location.
These secret government requests for information only came to light because Twitter took steps to ensure their customers were notified and had the opportunity to respond. In fact, EFF was only able to speak publicly about the hearing and the motions we filed on behalf of our client, Icelandic Member of Parliament Birgitta Jonsdottir, after petitioning the court to lift the seal on the legal proceedings. We also asked the court Tuesday to go further with its unsealing, and make more documents public. The issues at hand -- WikiLeaks, privacy, free speech, and social networking -- are all important matters of public interest, and the orders and motions before the judge should be available to inform public debate.
The judge did not issue an order from the bench Tuesday, but will release a written order soon.
Earlier today, Secretary of State Hillary Rodham Clinton delivered a speech about Internet freedom titled, "Internet Rights and Wrongs: Choices and Challenges In A Networked World." In her remarks, Clinton built on prior statements about the U.S. Government's commitment to a free and open Internet, responding in part to the uprisings in the Middle East and Cablegate — major, ongoing international developments adding to the swell of debate about the parameters of Internet freedom.
Notably, Secretary Clinton announced that the State Department plans to award $25 million in grants to technology, tools, and training projects that support Internet freedom. Moreover, the State Department appears to be committed to diversity in the projects it awards, with Secretary Clinton stating, "We support multiple tools, so if repressive governments figure out how to target one, others are at the ready." We hope to see that commitment to diversity translate into real improvement for the best tools for online anonymity, circumvention of censorship, and the technologies that help protect lives and move ideas throughout the world.
Otherwise, while Secretary Clinton argued strongly against authoritarian regimes' attempts to control information on the Internet, she mostly steered clear of addressing the more complicated concerns about private companies and their roles and responsibilities in protecting freedom of expression on the Internet. For example, Clinton strongly criticized ironhanded tactics like jailing bloggers, filtering the Internet, and surveilling citizens through social networks. And she did touch upon the formative discussions that companies are having about corporate social responsibility and human rights. But her speech fell short of addressing the opportunities for corporations to provide meaningful protection for individuals' rights online, especially when those companies export surveillance technologies to autocratic regimes.
At times, the speech felt like a case of the right-hand of the government being unaware of the left-hand's doings. For every strong statement about preserving liberty, freedom of expression, and privacy on the global Internet, there exists a countervailing example of the United States attempting to undermine those same values: government domain name seizures, rubber-stamping of PATRIOT Act provisions in the face of widespread government abuse of national security letters, government attempts to obtain Twitter account records about three individuals in connection with its WikiLeaks investigation, and more.
Ethan Zuckerman has published an interesting analysis of Clinton's speech, and more strong articles will surely emerge in the coming days. Stay tuned to Deeplinks and the EFF Twitter feed for more Internet freedom updates.
As a reminder, COICA would give the government dramatic new copyright enforcement powers, most notably the ability to meddle with the Internet’s domain name system (DNS) and make entire websites effectively disappear, along with noninfringing content and lawful speech.
The bill’s main tool for targeting alleged infringement is suspension of domain names. We’ve gotten an early glimpse of how this provision might play out through recent enforcement efforts by U.S. Immigrations and Customs Enforcement (ICE) involving the seizure of domain names. The latest ICE action highlights an important point about COICA: the bill would take a seizure mechanism available under criminal copyright law and make it explicitly available in a civil context as well.
Earlier this month, ICE seized another ten domain names as part of an apparent ongoing strategy connected to its Operation in Our Sites project. Needless to say, we and others have lots of questions about ICE’s alleged bases for this action, some of which ICE revealed in the affidavit it filed in support of its seizure warrant application. Our most basic concern, howeverand one which informs our concerns about COICAis whether seizure is available for this kind of alleged infringement in the first place. U.S. law permits seizure of infringing materials, and tools for infringement, only in cases of criminal copyright. Does the affidavit establish “probable cause” (the standard of proof for seizure) to believe the domain names in question were used to commit a copyright crime? We don’t think so.
Criminal copyright infringement is infringement committed “willfully” and in the context of various specific circumstances. Significantly, the websites targeted in the most recent ICE action appear to have merely linked to infringing content. That is, they did not themselves violate any of the exclusive rights of copyright owners that would constitute direct infringement. The ICE agent who signed the affidavit explicitly states that the ten seized domains point to what he calls “linking” websitesi.e., websites that contain “links to files on third party websites that contain illegal copies of copyrighted content.” (He also points out that these linking sites “are popular because they allow users to quickly browse content and locate illegal streams that would otherwise be more difficult to find.” Sound like any search engines you know?)
The specific acknowledgment that the illegal copies reside on third-party websites seems to belie the claim that the targeted sites themselves are engaged in criminal acts. Furthermore, the ICE agent assumes that re-broadcasting of TV over the Internet is necessarily illegal, even though it is the subject of ongoing legal controversy.
This blurring of the distinction between criminal and civil remedies is a troubling example of how COICA would expand copyright enforcement to the detriment of the Internet’s continue growth as a platform for innovation and expression.
Looks like the Texas courts are no place to file suit if you want to bypass due process. A few weeks ago, we reported that Mick Haig Productions had dismissed its copyright infringement lawsuit against 670 "John Does," complaining that the court's appointment of attorneys from EFF and Public Citizen had impeded its ability to prosecute its case. In a brief filed on behalf of the Does, EFF and Public Citizen had argued that Mick Haig should not be allowed to send subpoenas for the Does' identifying information, because it had sued hundreds of people in one case, in the wrong jurisdiction and without meeting the constitutional standard for obtaining identifying information. We have also raised questions about the plaintiff's conduct, as it appears it sent out subpoenas without the court's permission.
Last week, we learned that another federal judge in Texas is considering appointing attorneys to represent the Does in five mass copyright cases: Steve Hardeman LLC v. Does 1-168; Serious Bidness LLC v. Does 1-109; Funimation Entmn’t v. Does 1,337; Adult Source Media v. Does 1-247 and Harmony Films Ltd v. Does 1-739. (see below for the court's orders). In each case, Judge Royal Furgeson has ordered the plaintiff to explain, by February 28, 2011, why the court should not appoint attorneys to represent the Does in responding to the plaintiff's request for permission to send out subpoenas for the Does' identities. In several of the above cases, the court has also vacated earlier rulings authorizing such subpoenas, which means the Does' service providers are no longer required to respond to any subpoenas they may have already received.
In his orders, Judge Furgeson notes an essential feature of mass copyright litigation: unlike the normal case, in which a defendant is notified of early case developments and can intervene to protect his or her interests (such as by opposing a plaintiff's request to send out subpoenas), the Does in these cases are unlikely to have any idea a lawsuit has been filed, much less that the plaintiff is seeking their identity. Appointing an attorney ad litem for limited purposes is one way to address that problem and help ensure that the Does receive the same constitutional protections that must apply to any defendant, in any litigation. We are pleased that Judge Furgeson is considering it.
Despite the valiant efforts of liberty-defending congresspersons from both political parties, the House of Representatives has just this evening passed an extension of the three USA PATRIOT Act surveillance powers that were set to "sunset" at the end of February, by a vote of 275 to 144. Now, the Senate is our last hope to stop PATRIOT renewal and obtain meaningful PATRIOT reform. The Senate is expected to vote on a PATRIOT renewal bill this week, so contact your Senators today and urge them to vote NO on the PATRIOT Act!
Of the 144 votes against the House bill, 26 came from Republicans, who argued that the law's broad surveillance powers constitute a big government intrusion into the lives of private citizens. For example, California Republican Dana Rohrabacher said:
I believe the American people have a legitimate fear of out-of-control government. And yes, they have a legitimate fear of out-of-control prosecutors and out-of-control spy networks.
Democratic Representative Bobby Scott of Virginia added:
I do not accept the argument that in order to be safe it's necessary to give up our rights and freedoms.
Republican House Judiciary Committee Chairman Lamar Smith insisted that the House's extension of the expiring PATRIOT provisions until December 8, 2010 was "the only way to provide House members the time to study the law" and consider changes. Of course, that's exactly what Congressional leaders said in February 2010, the last time Congress renewed PATRIOT. Don't let it happen again: contact your Senators now to oppose PATRIOT renewal and demand PATRIOT reform!