Yesterday, following on his ruling this Spring that the NSA's warrantless wiretapping of an Islamic charity's lawyers in 2004 violated federal surveillance law, Judge Vaughn Walker in the Northern District of California federal court issued his final order in the case of Al-Haramain Islamic Foundation v. Obama. The order granted the plaintiffs an award of $2.5 million in money damages and well-earned attorneys' fees for the government's violation of the Foreign Intelligence Surveillance Act, the same law underlying many of the claims in EFF's ongoing lawsuits against the NSA's mass surveillance program, Hepting v. AT&T and Jewel v. NSA. As one of the plaintiffs said of the ruling to the Associated Press, "the system worked."
The system has indeed workedfor the two attorneys wiretapped in this case as part of the so-called "Terrorist Surveillance Program" that the government has admitted to. But, as EFF has alleged in its cases based on widespread news reports and whistleblower evidence, the full scope of the NSA's warrantless wiretappingcryptically referred to as "Other Intelligence Activities" in the Inspectors General report on the broader President's Surveillance Programimplicates the privacy rights of millions of Americans, rights that EFF is still seeking to vindicate in its lawsuits on behalf of AT&T customers. Both the Jewel and Hepting cases are currently on appeal to the Ninth Circuit Court of Appeals and awaiting the scheduling of oral argument; depending on whether the government appeals yesterday's decision, the Al-Haramain case may soon be joining them.
At the beginning of this year EFF identified a dozen important trends in law, technology and business that we thought would play a significant role in shaping digital rights in 2010, with a promise to revisit our predictions at the end of the year. Now, as 2010 comes to a close, we're going through each of our predictions one by one to see how accurate we were in our trend-spotting. Today, we're looking back on Trend #8, Congress, where we predicted:
In retrospect, 2009 wasn't disastrous for online civil liberties in federal technology law. With Washington entirely distracted by health care reform, a lot of the most problematic proposed federal technology legislation was delayed, postponed or temporarily forgotten.
In 2010, we may not be so lucky. Key provisions of the Patriot Act, having recently been granted a three-month extension, are up for re-authorization before April 1. The Snowe-Rockefeller Cybersecurity Act, which would grant the President the power to disconnect the Internet, is likely to return sometime in 2010. And, with immigration reform considered a top priority for Congress this year, we can expect to see the national identification card scheme REAL ID (or its twin, PASS ID) again soon.
Admittedly, predicting a tough year in Congress for civil liberties was a no-brainer: As Mark Twain put it, "No man's life, liberty, or property are safe while the legislature is in session." However, other than the disappointing one-year re-authorization of the USA PATRIOT Act--which passed in the Spring with little debate and without a single reform being added to that surveillance law despite a hefty record of demonstrated government abuses--our digital civil liberties actually made it through the Congressional year relatively unscathed. As predicted, cybersecurity remained a hot issue with severalbills in play and a lot of overheated rhetoric about the risk to the U.S. from a "electronic pearl harbor", but no bill passed. And, happily contrary to our predictions, plans for a national ID card appear to have stalled, hopefully permanently.
The biggest threat to online freedom this year came in a form we didn't expect: Senator Leahy's Combating Online Infringements and Counterfeits Act ("COICA") internet censorship and copyright bill, which was unanimously approved by the Senate Judiciary Committee despite fierce opposition from EFF and others. That bill or something like it will certainly rear its head early in the new year. We also got a preview of perhaps the biggest Congressional battle for civil libertarians in 2011 when the FBI made clear its intention to seek an expansion of its wiretapping capabilities next year through an expansion of CALEA, the Communications Assistance for Law Enforcement Act. That law currently requires phone companies, broadband carriers and interconnected VOIP providers to design their systems to be easily wiretappable by the government. Now, the FBI wants to expand that surveillance tech mandate to require surveillance backdoors for all Internet communications, with particularly grave implications for the privacy of encrypted communications.
But there were also some bright spots in the Congressional record this year that point toward good things in 2011. First, Representative Bobby Rush introduced a broad consumer privacy protection bill that garnered support not only from privacy advocates but even some major online businesses like Microsoft and eBay, and as chairman of the House Commerce Subcommittee he also held a hearing on the possibility of legislation to support a "Do Not Track" technology to give online consumers control over how they are monitored online, setting up online consumer privacy as a major issue for the next session. In another positive development, EFF teamed up with other civil liberties organizations and major internet companies to form the Digital Due Process ("DDP") coalition and press Congress to update the antiquated Electronic Communications Privacy Act of 1986 ("ECPA"). Working with the DDP coalition, EFF is pushing Congress to make clear that if the government wants to secretly seize the contents of your webmail account or enlist the phone company to track the location of your cell phone, it needs to have a search warrant based on probable cause. Prompted by the debut of the DDP coalition's principles, Congressheldfourhearings on the issue of ECPA reform in 2010, with reform bills expected in the New Year.
The copyright troll Righthaven has brought over 190 casesand countingagainst bloggers, online journalists and others since March of this year. While EFF has taken on two of these cases directly (Democratic Underground and DiBiase) we have also been attempting to help those sued to secure counsel. If the tactics of these trolls trouble you and you are a member of the bar with experience in copyright litigation, these defendants need your help.
What’s Righthaven? Righthaven is a Nevada company operated by Las Vegas attorney Steven Gibson, whose “sole purpose” is “suing blogs and websites.”. It searches the Internet for bloggers and websites that contain posts with content from certain newspapers. When it finds one, it purportedly buys the copyright from the newspaper publisher, applies for a copyright registration, and then files a lawsuit against the blogger or website. Its current partners include the Las Vegas Review-Journal (owned by Stephens Media LLC, who helped form the company) and the Denver Post.
Just as in many other copyright troll shakedowns, Righthaven relies on the threat of enormous copyright statutory damages (up to $150,000) to scare defendants, often individual bloggers operating non-commercial websites, into a quick settlements. They also threaten to seize the domain names, a threat without basis in law. Even if a blogger has meritorious defenses, the costs of defending can often be overwhelming - unless the blogger has pro bono counsel to help even the odds.
The pace at which EFF is hearing from Righthaven defendants is increasing, and we and our cooperating attorneys are presently working at capacity. We need more attorneys versed in copyright issues to whom we can refer people who need pro bono help defending themselves from Righthaven. EFF has already briefed several of these issues in the cases we're handling and those resources are available to counsel. Almost all of the cases are filed in the District of Nevada and we do have good links to possible local counsel.
If you are an attorney interested in representing Righthaven defendants, please contact Rebecca Reagan at firstname.lastname@example.org.
This week, EFF will introduce new annual membership levels and benefits. The most exciting part is that new and renewing members at the Copper Level or higher will receive an EFF Member Card! Back by popular demand, the EFF Member Card lets you show your commitment to online civil liberties.
The majority of EFF's funding comes from passionate individuals like you, so we like to offer members tokens of our appreciation. Choose from several free gifts, including t-shirts available exclusively to EFF members. EFF membership lasts for 12 months and you can select a gift every time you renew! All members receive a "Proud Member" bumper sticker and discounts on General Admission to EFF events!
In addition, EFF members who choose to accept email enjoy these benefits:
EFFector, EFF's weekly e-newsletter, providing up-to-date information about important legal battles, news, and events,
Action Alerts to notify you about urgent issues,
Invitations to members-only Speakeasy gatherings,
A digital EFF Member badge for your site or blog,
A 10% discount at EFF's online store,
A Magnatune.com gift card for DRM-free music, and
Discounts on Make Magazine, No Starch Press books, and Take Control eBooks.
The last four items are included in a one-time email message which arrives within three weeks of joining. Your information is never shared, swapped, or sold to these organizations or any others. Join or renew on our site! Alternatively, feel free to give a one-time donation. EFF is a 501(c)(3) charitable organization. Our tax ID number is 04-3091431. Your gift is tax deductible to the full extent provided by law.
Thank you for keeping EFF strong for over twenty years. Become a card-carrying member of EFF and take a stand for digital rights today!
At the beginning of this year EFF identified a dozen important trends in law, technology and business that we thought would play a significant role in shaping digital rights in 2010, with a promise to revisit our predictions at the end of the year. Now, as 2010 comes to a close, we're going through each of our predictions one by one to see how accurate we were in our trend-spotting. Today, we're looking back on Trend #5, Location Privacy, where we predicted:
In 2010, awareness of location privacy as an issue will enter the mainstream in the U.S. as a critical mass of end users voluntarily adopt technologies that use or share their physical location — and start to wonder who has access to this information. Many more courts will grapple with these questions this year, building upon the important 2009 decisions in the Connolly case in Massachusetts and the Weaver case in New York. EFF is awaiting the decision in U.S. v. Jones in the Court of Appeals for the District of Columbia, where we asked a court to limit law enforcement use of these devices.
Looks like we hit the nail on the head with this one. As we recounted just last month in the post "Location, Location, Location", location privacy was a huge issue this year both in thecourts and in Congress. It's also been a big focus of our work here at EFF, where we brought home two major courtvictories that strengthened your rights against location tracking by the government, whether through your cell phone or a GPS device attached to your car. (One of those victories was in the US v. Jones case that we mentioned in January, now referred to as US v. Maynard.) We've also been working hard as part of the Digital Due Process coalition to convince Congress to update the law and make absolutely clear that government agents that want to track your location must get a search warrant first. These issues will only get hotter in 2011 as location privacy bills are expected to be introduced in Congress and more court battles are expected to pop up. First up: a showdown in Houston where EFF will be filing a brief in early January opposing the government's appeal of a magistrate judge's pro-privacy cell phone tracking decision.
Online privacy continues to be a hot topic in Washington, D.C. A few weeks ago, the Federal Trade Commission (FTC) issued a staff report calling for greater protection of online consumer privacy. A House subcommittee heard testimony on the increasingly popular idea of “do not track” for the Internet. Soon thereafter, Microsoft announced a new tracking protection mechanism for Internet Explorer 9.
Yesterday, the Department of Commerce chimed in with its own “green paper” on online privacy, which echoes many of the concerns we’ve discussed here—in particular, the enormous gap between consumer privacy expectations and business reality in the online environment, where increasingly sophisticated yet largely hidden tracking mechanisms are routinely deployed against the general public. Everyone agrees that there’s a problem.
However, there’s still no agreement on what should be done about it. To its credit, the Commerce Department (and many of the companies that commented on the original notice of inquiry) strongly supported greater adherence to the well-known Fair Information Practice Principles. We were also glad to see that the Commerce Department expressly discussed the need to reform the Electronic Communications Privacy Act given the rise of cloud computing and growing concern about law enforcement access to data traversing or stored by service providers, consistent with the goals of the Digital Due Process coalition that EFF is helping to steer.
We think that approach has serious problems. Agency rulemaking is by no means ideal, but it is governed by law and yields legal rules subject to judicial review based on a defined administrative record. Multi-stakeholder negotiation is more political, and such a political consensus may only lead to general principles that are hard to enforce. It’s also less accountable to the facts; we’re concerned about how it would get verifiable information about commercial surveillance technologies, practices and data flows. Nor is it clear that businesses would follow voluntary codes of conduct. Multi-stakeholder negotiation may have a place within agency rulemaking, but it doesn’t strike us as a substitute for enforceable rules.
We expect to comment on the green paper, and encourage others to as well. Comments are due Jan. 28, 2011 and can be submitted to email@example.com.
Viacom’s appeal of the district court’s decision in Viacom v. YouTube is well underway, and now the amicus briefs supporting Viacom have been filed as well. The arguments in Viacom’s opening brief largely rehash many of the same arguments Viacom madeunsuccessfullythe first time around: Generalized awareness of some infringing content, and failure to take down such unidentified content, disqualifies a service provider from the DMCA’s safe harbors; YouTube’s compliance with the DMCA proves its DMCA-disqualifying ability to control the infringing activity on its network; DMCA protection for YouTube’s “storage” of uploaded content does not include the display of the content on the site; and so on.
Amici chime in with their familiar doomsday refrain. For instance, the American Federation of Musicians’ filing states: "YouTube is more than a widespread infringer of copyrights; it was a catalyst and engine for copyright infringement on a global scale, unleashing a Pandora’s box of illegal activity that will continue to threaten the output of America’s creative industries for years to come." Other briefs make similarly dire predictions.
This kind of language would not have been surprising five years ago. Big media has a long history of knee-jerk opposition to disruptive innovation. But it’s curious that Viacom and its supporters should still be so determined to kill a platform that’s become a revenue source for the media industry. Content owners including Viacom and other amici are making real money from their share of YouTube advertising dollars (which is doubtless one of the reasons Viacom is not seeking redress for activities after mid-2008). YouTube reports that “[h]undreds of partners are making six figures a year.” Media companies use YouTube as well to promote their proprietary content for indirect profit. Importantly, independent artists are also among the content owners who useand indeed, often rely onYouTube for a promotional and financial forum. Were it not for the DMCA safe harbors, this creative and financial engine could not sustain itself.
Let’s be clear: as we’ve previously noted, Viacom and its supporters are seeking a re-write of the DMCA that would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is copyright infringement committed on eBay every day by some users? Do people use Microsoft's Bing to find infringing materials? Sure. Obviously these services are also enormously beneficial to businesses and consumers. But they (and many other) online services would not exist without the DMCA safe harbors.
And because they exist, Hollywood and the recording industry have a chance to benefit from new business models they were unable to come up with themselves. Why not embrace them? Because despite decades of evidence to the contrary, big media can’t get over the idea that the only acceptable media innovation environment is one that starts with innovators begging permission from Hollywood.
EFF will be filing our own brief in support of YouTube, and we’re hopeful that, in addition to standing firm on the DMCA, the court of appeals will note YouTube’s growing role in creating revenue opportunities for creators, both big and small.
It’s no secret that the US government has used its annual Special 301 Report to intimidate other countries into adopting more stringent copyright and patent laws by singling out particular countries for their "bad" intellectual property policies, and naming them on a tiered set of "watch lists". Listing results in heightened political pressure and in some cases, the potential for trade sanctions, which encourages foreign trading partners to change their laws to mirror those in the US. But now some of the cables provided by WikiLeaks to Spanish newspaper El Pais confirm that the US government has pushed other countries to adopt measures that go beyond US law, unleashing the fury of Spanish Internet users.
A set of cables reported on by El Pais make clear that the US government played a key role in Spain’s controversial website blocking law – the 2009 Sustainable Economy Bill, which the Spanish government is now trying to sneak it through a Committee in a pre-holiday session on 21st December. (Spanish readers, please see Action you can take below).
El Pais reports that in February 2008 the US government threatened to put Spain on the annual Special 301 Watch List issued by the Office of the US Trade Representative unless the new Spanish government announced new measures to address Internet piracy, including a law that requires ISPs to terminate the Internet access of subscribers accused three times of file sharing - like the French “HADOPI” Three Strikes law.
“We propose to tell the new government that Spain will appear on the Watch List if it does not do three things by October 2008. First, issue a [Government of Spain] announcement stating that internet piracy is illegal, and that the copyright levy system does not compensate creators for copyrighted material acquired through peer-to-peer file sharing. Second, amend the 2006 “circular” that is widely interpreted in Spain as saying that peer-to-peer file sharing is legal. Third, announce that the GoS will adopt measures along the lines of the French and/or UK proposals aimed at curbing Internet piracy by the summer of 2009.”
Let’s be clear what this means; a US official apparently pressured the government of Spain to adopt novel and untested legislative measures that have never been proposed in the US Congress, and as the other cables published by El Pais show, did so at the request of US IP rightsholders.
The “French proposal” mentioned in the cable is the controversial 2009 HADOPI law, which provides for the French authority, the Haute Autorite pour la Diffusion des Oeuvres et la Protection des droits sur Internet, to send notices to ISPs recommending that they suspend the Internet accounts of users at identified IP addresses for up to a year, on the third allegation of copyright infringement.
The “UK Proposal” appears to be a reference to UK IP rightsholders’ demands that ISPs disconnect their subscribers after three allegations of copyright infringement in consultations that were convened by the UK government’s Department of Business, Enterprise and Regulatory Reform in 2007-2008, following a recommendation in the landmark Gowers report on UK IP law reform. Those consultations and a subsequent agreement were the precursor to the Digital Economy Act enacted in early 2010. The UK ultimately decided not to adopt Three Strikes. (To date, only the governments of France and South Korea have passed these novel laws, but a draft law is pending in New Zealand). The Digital Economy Act requires ISPs to forward notices of alleged infringement to their subscribers, but does not currently require ISPs to disconnect their subscribers upon a third allegation of copyright infringement – although it leaves open the possibility that the UK government could require such “technical measures” in the future.
The cables show that the US Embassy in Madrid had devised a detailed “roadmap” in 2007 with short, medium and long-term strategies to increase pressure upon Spain to take action to strengthen IP laws by the March 2008 elections. This would “require continued constant high-level attention from Embassy and occasional help from Washington agencies over the coming 3 to 4 years”, including meetings with visiting US government officials from the USPTO and State Department.
The Spanish government apparently did not act fast enough on US demands. The US made good on their threat to add Spain to the Watch List in the US Trade Representative’s Special 301 Report in 2008 and 2009. In November 2009, the Spanish government proposed a new anti-piracy law, the Sustainable Economy Bill, which raises serious concerns for Spanish citizens’ rights of due process, privacy and freedom of expression. The good news is that the proposed legislation does not require ISPs to adopt Three Strikes Internet disconnection of individuals. However, the bad news is that it follows the recent trend towards imposing obligations on Internet intermediaries to block content. Similar laws have been proposed in the U.S. (COICA) and the UK (through the reserved powers in the Digital Economy Act).
The proposed Sustainable Economy law would allow a new government Commission to direct ISPs to block service or remove content on websites after receiving complaints on certain grounds. These include national defense, public order, public safety, public health, protection of minors, and “safeguarding IP rights”. It would also require ISPs to respond to requests from authorized entities for the identification and disclosure of persons responsible for IP infringements – an issue that IP rightsholders had pursued and lost in the 2008 European Court of Justice’s ruling in Promusica v. Telefonica.
A US Embassy cable from December 2009 describes the massive Internet community protests that soon followed the introduction of the legislation. It notes that the Government of Spain had “disavowed any intention to implement a graduated response regime such as contemplated in recently enacted legislation in France. Their specific intent is rather to impede access to infringing content.” The cable reports back to Washington officials on the respective reactions of senior representatives of the recording industry and motion picture industry, the local affiliates of the International Federation of Phonographic Industries and the Motion Picture Association of Europe. Many content providers, including the President of the Federation for Intellectual Property in Audiovisual works (FAP) , reportedly thought that the legislation was the most that could currently be achieved and would pave the way for more stringent laws in the future, but the Spanish music industry representative was not satisfied, claiming that “this limitation [i.e., the legislation’s failure to oblige ISPs to adopt a Three Strikes Internet disconnection regime] will leave users free to continue in unauthorized P2P downloading”.
After the Spanish Parliament failed to adopt the legislation in 2009, Spain was again put on the Watch List in the USTR’s Special 301 Report in April 2010. The reasons given reiterate each of the points of contention described in the cables:
“Spain will remain on the Watch List in 2010. The United States remains concerned about particularly significant Internet piracy in Spain, and strongly urges prompt and effective action to address the issue. The Spanish government has not amended portions of a 2006 Prosecutor General Circular that appears to decriminalize illegal peer-to-peer file sharing of infringing materials, contributing to a public misperception in Spain that such activity is lawful. Spain’s existing legal and regulatory framework has not led to cooperation between Internet service providers (ISPs) and rights holders to reduce online piracy. On the contrary, rights holders in Spain report an inability to obtain information necessary to prosecute online IPR infringers, further reducing their ability to seek appropriate remedies. Spain’s legal system also generally does not result in criminal penalties for intellectual property infringement. The United States is encouraged by some recent positive developments in Spain, including the establishment of an Inter-Ministerial Commission with a mandate to propose changes in Spanish law and policy that will strengthen efforts to reduce Internet piracy. In January 2010, the Commission proposed legislation that would allow a committee based in the Ministry of Culture to request that an ISP block access to infringing materials hosted online. The United States urges Spain to continue taking positive steps to address Internet piracy, and will closely monitor progress in the next year.”
This is how the entertainment industry works with the US government to bully governments to create harmonized laws that continuously ratchet up copyright protection, one country at a time.
The Sustainable Economy Bill will be debated in the Committee of Economy and Finance of Spain’s Congress next Tuesday, 21st December, just before the holiday recess. It could then be adopted by the Senate by the end of February 2011.
The past is behind us, but the future is in your hands. If you are a Spanish citizen, call your Congressional representative and demand that this legislation be debated in open Parliament with the full attention that it deserves, not adopted by sleight of hand because of background political pressure. Our Spanish friends ask that you focus on representatives of the independent parties (some of whom have called for the Bill to be debated in a plenary session) - the Catalonian party (CIU), the Vasc Party (PNV), and the Canarian Island Pary (CC). More information is available at Asociacion de Internautas' campaign page; Red-SoS and here, and follow @La_EX_ on Twitter.
UPDATE December 21st, 2010: Victory! The Committee of Economy and Finance in Spain's Congress has just stripped the website shut-down provision from the Sustainable Economy Bill. More details at El Pais and follow on Twitter at #sindegate, #leysinde. Thank you to all who took action!
It’s worth remembering that it was the cables provided by Wikileaks to El Pais that brought to light the US’s role in pressing for the anti-downloading law which would have set up an extra-judicial process to shut down websites.