In our 714 issue:
Following President Trump’s confusing executive order on terrorism and immigration, there have been reports that border agents at airports were searching the cell phones of passengers arriving from the Middle East, including U.S. permanent residents. We’re concerned that this indicates an expansion of the already invasive digital practices of U.S. Customs and Border Protection, so we’re asking for your digital border search stories.
Searching through Americans’ social media data and personal devices intrudes upon both First and Fourth Amendment rights. As part of our work to combat what we believe to be unconstitutional practices at the border, and to better understand how the Trump Administration’s new policies may be changing border practices, we would like to hear your stories.
Please let us know if a U.S. official at the border examined your cell phone, laptop, or other digital device; asked for your device’s passcode or ordered you to unlock or decrypt it; or asked for your social media handles. We would like to hear from everyone, but especially if you are a citizen or permanent resident (green card holder) of the United States.
Can foreign governments spy on Americans in America with impunity? That was the question in front of the U.S. Court of Appeals for the District of Columbia Circuit last week, when EFF and others went to court in Kidane v. Ethiopia.
Despite the numerous issues on appeal, the argument focused on whether U.S. courts have jurisdiction to hear a case brought by an American citizen for wiretapping and invasion of his privacy that occurred in his living room in suburban Maryland. As we've argued, the question of whether U.S. courts can provide a remedy to an American who was wiretapped shouldn't turn on where the eavesdropper was sitting, but rather where the actual wiretapping occurred.
Ethiopia's lawyer took the position that the country should be able to do anything to Americans in America, even set off a car bomb, as long as Ethiopia didn’t have a human agent in the United States. One judge asked what would happen if Ethiopia mailed a letter bomb into the United States to assassinate an opponent, or hacked an American's self-driving car, causing it to crash. Ethiopia didn't hesitate: their counsel said that they could not be sued for any of those.
The Supreme Court already has a list of digital civil liberties issues to consider in the near future, and that list is likely to grow. If confirmed, President Donald Trump’s nominee to fill the late Justice Antonin Scalia’s seat on the Supreme Court—Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit—will be in a position to make crucial decisions affecting our basic rights to privacy, free expression, and innovation.
On the privacy front, the Supreme Court is being asked to consider a pair of cases dealing with law enforcement obtaining cell phone location records: the U.S. v. Graham ruling out of the Fourth Circuit Court of Appeals and the U.S. v. Carpenter out of the Sixth Circuit Court of Appeals. On free speech, the court is set to hear arguments on Packingham vs. North Carolina and consider the constitutionality of a North Carolina law that bans registered sex offenders from using online social media platforms that minors also access.
When it comes to intellectual property issues, the court has agreed to hear arguments in a case centered around where patent infringement lawsuits can be brought and arguments in a case about whether a patent holder can put limits on how a customer can use, resell, tinker with, or analyze a patented product a customer has purchased. The court is also being asked to hear arguments in cases that consider how copyright holders should be held accountable for unreasonable infringement claims and whether the Patent Office's appeals board uses the correct standard when determining obviousness of issued patents.
News and Government Sites Switch to HTTPS
The last year has seen enormous progress in encrypting the web. Two categories in particular have made extraordinary strides: news sites—including Wired, BuzzFeed, The New York Times, and The Guardian—and U.S. government sites.The common thread between the news industry’s huge progress and the federal government’s huge progress in deploying HTTPS? Metrics. Reports like like EFF’s 2013 Encrypt the Web Report, the General Service Administration's Pulse, and Freedom of the Press Foundation's Secure the News provide important insight into how much progress is being made and an incentive for individual sites to improve.
California Advances Bills to Protect Residents Data from Federal Government
The California Senate recently moved forward with two new state bills that would create a database firewall between California and the federal government. One, S.B. 54, would prevent law enforcement agencies in California from sharing department databases or private information with the federal government for immigration enforcement and would require state agencies to update their confidentiality polices so that they stop collecting or sharing unnecessary data about every Californian. Another, S.B. 31, would prevent local and state government agencies from collecting data, sharing data, or using resources to participate in any program that would create a registry of people based on their religion, ethnicity, or national origin.
We Want a Copyright Office that Serves the Public
The Copyright Office, and those who lead it, should serve the public as a whole, not just major media and entertainment companies. In comments to the leadership of the House Judiciary Committee this week, we told Congress that if it restructures the Copyright Office, it has to put in safeguards against the agency becoming nothing more than a cheerleader for large corporate copyright holders.
Federal Court Says Public Safety Laws Can Be Locked Behind Paywalls
Everyone should be able to read the law, discuss it, and share it with others, without having to pay a toll or sign a contract. Unfortunately, a federal district court has recently said otherwise, ruling that private organizations can use copyright to control access to huge portions of our state and federal laws. In its ruling, the court ordered Public.Resource.Org—which posts public documents, including regulations created through private standards organizations and later made into law—to stop providing public access to these key legal rules.
Copyright Alert System Closure Leaves Questions
The Copyright Alert System has called it quits, but questions remain about what, if anything, will replace the private agreement between several large Internet service providers (ISPs) and big media and entertainment companies. That agreement allowed the media and entertainment companies to monitor those ISPs' subscribers' peer-to-peer network traffic for potential copyright infringement, and imposed penalties on subscribers accused of infringing. EFF had serious concerns with the program from the start, and we welcome its retirement. But we’re not celebrating just yet.
An Unsatisfying Update on Operation Choke Point
EFF recently received dozens of pages of documents in response to a FOIA request we submitted about Operation Choke Point, a Department of Justice project to pressure banks and financial institutions into cutting off service to certain businesses. While Operation Choke Point was purportedly aimed at shutting down fraudulent online payday loan companies, we became concerned that this campaign could also affect legal online businesses. Unfortunately, the response from the Department of Justice leaves many questions unanswered.
Judges Split on Data Stored Abroad
A federal judge has ordered Google to turn over users' emails stored in servers located abroad in compliance with search warrants, despite the fact that a federal court said last year that Microsoft did not have to turn over data stored abroad, Reuters reports.
Behind the Scenes at the FBI
The Intercept does a deep dive into the largely-unknown rules governing the FBI.
Cyber Executive Order Delayed
President Donald Trump delayed the signing of an executive order that was reportedly aimed at bolstering the federal government's cybersecurity protections, according to Bloomberg.
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Kate Tummarello, Policy Analyst
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