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EFF Press Release Archives

Press Releases: July 2012

July 27, 2012

Says Statute Likely Violates First Amendment, Federal Communications Decency Act

Seattle - Today, a federal district court judge granted a motion by the Internet Archive to block enforcement of an overbroad Washington state anti-sex trafficking statute that could make online service providers criminally liable for providing access to third parties' offensive materials.

The Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to invalidate SB 6251, a law aimed at combatting advertisements for underage sex workers but with vague and overbroad language that is squarely in conflict with federal law. EFF last week appeared in federal district court in Seattle to argue that the court should grant a preliminary injunction barring enforcement of the criminal statute while the lawsuit is ongoing. The court today agreed with the Internet Archive, finding that the statute likely violated the First, Fifth, and Fourteenth Amendments, the dormant Commerce Clause, and Section 230 of the Communications Decency Act.

"We are grateful that the Court agreed with our concerns about the gravity of the structural problems with this statute," said Senior Staff Attorney Matt Zimmerman. "While everyone involved in this case agrees that sex trafficking is an abhorrent practice, the approach used in this statute to combat the problem is fundamentally and irretrievably flawed. States cannot make those who provide access to online information -- like libraries or Internet Service Providers (ISPs) -- responsible for the illegal behavior of third party users, under threat of criminal penalties. Prosecuting criminals themselves will always be the better approach."

SB 6251 was passed with the hope of criminalizing the dissemination of underage sex trafficking ads and imposing a requirement to confirm the ages of individuals in such ads prior to publication. The law, however, is fraught with problems. As written, the vaguely-worded statute -- making it a felony to "directly or indirectly" provide access to any material that might constitute an "explicit or implicit" commercial offer for sex -- could be read to apply not only to posters but to neutral entities that provide access to online information, including ISPs, Internet cafes, and libraries. This would result in a chilling effect as such entities begin feeling pressured to censor protected online speech in order to safely stay on the right side of an unclear law. The Internet Archive is particularly concerned with any statute that seeks to make intermediaries responsible for content created by third parties -- the Internet Archive itself currently makes available over 150 billion archived web pages from 1996 to the present and has no practical ability to screen its collection for illegal content.

With the statute now enjoined, the plaintiffs (including Backpage.com, which has filed a separate complaint challenging the legality of the law) will now move for a final declaration by the court that the statute is illegal.

For the order granting preliminary injunction barring enforcement of SB 6251:
https://www.eff.org/node/71321

For more on this case:
https://www.eff.org/cases/internetarchive-v-mckenna

Contacts:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

July 25, 2012

Statute Criminalizes Speech in Violation of the First Amendment

San Francisco - The Electronic Frontier Foundation (EFF) is urging a Washington State judge to dismiss "cyberstalking" charges stemming from rude comments left on a blog. In an amicus brief filed today, EFF argues that the case is based on an unconstitutional law that criminalizes free speech.

The defendant in the case, Brandy Edwards, created an online dating profile under a pseudonym and used it to communicate with Amanda Westmont, the ex-wife of a friend of Edwards. Months later – after the online relationship ended – Edwards posted three critical comments on Westmont's publicly accessible blog, still using the pseudonym. Employing obscenities, the posts referred to Westmont as "full of herself," a "nutcase," and a "whack-job."

Westmont deleted the posts and reported them to the police. A year later, Edwards was charged with two counts of "cyberstalking" under Washington State law. The first charge is based on Edwards anonymously and repeatedly communicating with Westmont for the purpose of "harassing and embarrassing" another person, although the conversation was consensual. The second charge is based on Edwards' use of "obscene" language for the purpose of "harassing or embarrassing." The problem with the Washington State statute is that it outlaws anonymous or obscene speech intended to "embarrass" without defining what that broad term means. In the brief filed today, EFF argues that the law is unconstitutional and the case should be dismissed.

"While we may not like a lot of what people say online, the First Amendment allows for rudeness and other impolitic comments," said EFF Staff Attorney Hanni Fakhoury. "The way this law is written, it could end up criminalizing things like posting a negative review on a website like Yelp."

Venkat Balasubramani of FOCAL PLLC in Seattle, Washington, is EFF's local counsel in the case.

For the full amicus brief:
https://www.eff.org/node/71310/

Contact:

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

Related Issues:
July 16, 2012

Growing Biometric Databases Threaten Privacy and Civil Liberties

Washington, D.C. - Electronic Frontier Foundation (EFF) Staff Attorney Jennifer Lynch will testify this week at a Senate hearing on facial recognition technology and the privacy and civil liberties risks associated with rapidly growing biometric databases. The hearing is set for Wednesday, July 18, at 2:30 p.m.

Facial recognition technology is becoming increasingly sensitive and sophisticated, creating new ways for government and private entities to identify and track people throughout the United States. Meanwhile, databases used by law enforcement, social networking sites, and other entities both public and private are growing larger every day. In her testimony Wednesday, Lynch will discuss how the increasing use of facial recognition technology presents unique risks to Americans' privacy and civil liberties, and what we can do to protect rights and freedoms going forward.

Other witnesses at Wednesday's hearing include Maneesha Mithal, Associate Director of the Federal Trade Commission's Division of Privacy and Identity Protection; Jerome M. Pender, Deputy Assistant Director of the Criminal Justice Information Services Division of the Federal Bureau of Investigation; and Rob Sherman, Facebook's Manager of Privacy and Public Policy. The hearing is part of the Senate Judiciary Committee's Subcommittee on Privacy, Technology, and the Law, chaired by Senator Al Franken.

WHO:

Jennifer Lynch

Staff Attorney, Electronic Frontier Foundation

 

WHAT:

“What Facial Recognition Technology Means for Privacy and Civil Liberties”

U.S. Senate Judiciary Committee, Subcommittee on Privacy, Technology, and the Law

 

WHEN:

2:30 p.m.

Wednesday, July 18

 

WHERE:

Dirksen Senate Office Building, Room 226

Washington, DC 20002 

 

For more on the hearing:

http://www.judiciary.senate.gov/hearings/hearing.cfm?id=daba530c0e84f5186d785e4894e78220

Related Issues:
July 9, 2012

Authors Guild Suit Against Reference Uses Flies in the Face of Fair Use

San Francisco - The Electronic Frontier Foundation (EFF) has joined several national library associations in urging a federal court to find that the fair use doctrine permitted the creation of a valuable digital library.

Although the case was filed long after the more famous Google Books lawsuit, Authors Guild v. HathiTrust presents a similar issue: whether digitization of books without granting full text access to the public is a legal fair use of copyrighted material. For the past seven years, major university libraries have been collaborating with Google to digitize their collections, with one result being the creation of the HathiTrust Digital Library (HDL). Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections. With the exception of some patrons who have disabilities, HDL does not allow for users to access books in their entirety – it simply does a search for keywords and delivers titles and page numbers as results. Nonetheless, the Authors Guild claims its members are due compensation in exchange for being included in the collection. In an amicus brief filed Friday, EFF and the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries argue that the copying of books for a database like the HDL is a clear case of fair use, and obviously in the public interest.

"The HDL doesn't give most users whole copies of a book. Instead, libraries use the HDL to search for books titles that they should borrow or purchase for their users," said EFF Intellectual Property Director Corynne McSherry. "This is a highly detailed map – a reference tool – and doesn't take the place of book sales. This is just the kind of fair use that copyright law is supposed to protect."

For the full amicus brief in The Authors Guild v. HathiTrust:
https://www.eff.org/node/71166

Contact:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Related Issues:
July 3, 2012

Suit Was Blatant Retaliation Against a Public Critic

San Francisco - Attorney Charles Carreon dropped his bizarre lawsuit against The Oatmeal creator Matthew Inman today, ending his strange legal campaign against Inman's humorous and creative public criticism of a frivolous cease and desist letter that Carreon wrote on behalf of his client Funny Junk.

The Electronic Frontier Foundation (EFF) and co-counsel Venkat Balasubramani represented Inman in the case. While Carreon's lawsuit was purportedly about whether Inman's online fundraising campaign for the American Cancer Society and the National Wildlife Federation complies with California regulations, it was really a classic SLAPP – a strategic lawsuit against public participation.

"Matthew Inman spoke out against Carreon's threat of a frivolous lawsuit, in a very popular and very public way," said EFF Senior Staff Attorney Kurt Opsahl. "This was nothing more than a meritless attempt to punish Inman for calling attention to his legal bullying. We called him out on this in our briefs, so it's no surprise that Carreon was left with no choice but to dismiss."

The extraordinarily public dispute between Inman and Carreon started in 2011, when Inman published a blog post condemning the website FunnyJunk for posting hundreds of his comics without crediting or linking back to The Oatmeal. A year later, Carreon – the attorney for FunnyJunk – served Inman with a letter claiming the post was defamatory and demanding The Oatmeal pay $20,000 and agree to never speak the words Funny Junk again.

Inman publicly annotated the cease and desist letter with a scathing critique of its facts and logic and posted it on The Oatmeal. Furthermore, instead of paying Carreon's baseless demand for $20,000, Inman decided instead to start a fundraising campaign called Operation BearLove Good, Cancer Bad through the Indiegogo fundraising platform to benefit the American Cancer Society and the National Wildlife Federation. The fundraiser's goal was $20,000, to match Carreon's demand, but the final total was over $200,000.

"Inman sparked a flood of charity donations, and yet Carreon still tried to punish him for making fun of his baseless legal threats by dragging him through the court system," said EFF Intellectual Property Director Corynne McSherry. "We're very pleased that Carreon has seen that his lawsuit had no merit, and hope that this is the end of his abuse of the legal system."

For the notice of voluntary dismissal:
https://www.eff.org/node/71150

For more on this case:
https://www.eff.org/cases/carreon-v-inman

Contacts:

Kurt Opsahl
   Senior Staff Attorney
   Electronic Frontier Foundation
   kurt@eff.org

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

July 2, 2012

EFF Asks Court to Reject Stale State Secret Arguments So Case Can Proceed

San Francisco - Three whistleblowers – all former employees of the National Security Agency (NSA) – have come forward to give evidence in the Electronic Frontier Foundation's (EFF's) lawsuit against the government's illegal mass surveillance program, Jewel v. NSA.

In a motion filed today, the three former intelligence analysts confirm that the NSA has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers, such as the "secret room" at the AT&T facility in San Francisco first disclosed by retired AT&T technician Mark Klein in early 2006.

"For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people," said EFF Legal Director Cindy Cohn. "Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We're extremely pleased that more whistleblowers have come forward to help end this massive spying program."

The three former NSA employees with declarations in EFF's brief are William E. Binney, Thomas A. Drake, and J. Kirk Wiebe. All were targets of a federal investigation into leaks to the New York Times that sparked the initial news coverage about the warrantless wiretapping program. Binney and Wiebe were formally cleared of charges and Drake had those charges against him dropped.

Jewel v. NSA is back in district court after the 9th U.S. Circuit Court of Appeals reinstated it in late 2011. In the motion for partial summary judgment filed today, EFF asked the court to reject the stale state secrets arguments that the government has been using in its attempts to sidetrack this important litigation and instead apply the processes in the Foreign Intelligence Surveillance Act that require the court to determine whether electronic surveillance was conducted legally.

"The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret," said EFF Senior Staff Attorney Lee Tien. "Yet the government keeps making the same 'state secrets' claims again and again. It's time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance."

For the full motion for partial summary judgment:
https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment

For more on this case:
https://www.eff.org/cases/jewel

Contacts:

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@eff.org

Lee Tien
   Senior Staff Attorney
   Electronic Frontier Foundation
   tien@eff.org

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