EFF in the News
The policy is “supposed to be strongly in favor of disclosure,” said Andrew Crocker, a staff attorney at the Electronic Frontier Foundation, an advocacy group that sued to declassify the government’s review process. “It should at some point disclose it to Apple so it can fix it,” he said. “Anything else is showing the policy itself doesn’t work as they say it works.”
“One of the central questions of the study is whether the safe harbors are working as intended, and the answer is largely yes,” said EFF Legal Director Corynne McSherry. “The safe harbors were supposed to give rightsholders streamlined tools to police infringement, and give service providers clear rules so they could avoid liability for the potentially infringing acts of their users. Without those safe harbors, the Internet as we know it simply wouldn’t exist, and our ability to create, innovate, and share ideas would suffer.”
“A lot of it is up to DOJ and how they want to play it,” Andrew Crocker, a staff attorney for the Electronic Frontier Foundation, told BuzzFeed News. Since the Justice Department withdrew its San Bernardino case, the legal dispute over the limits of the All Writs Act, and how it might be wielded to force web companies to bypass their own encryption, remains unresolved. But even if the government can get into several types of Apple phones, the ability to invoke the AWA can serve as a crucial tool for law enforcement against other technology companies, like Google, Crocker said.
Jennifer Lynch, Senior Staff Attorney with the Electronic Frontier Foundation, an organization defending human rights in the digital age with focus on freedom of expression and user privacy, provided a civil liberties counterargument to data driven ‘predictive policing’—that in preventing victimization through crime, the police are victimizing whole communities. This encompasses limits on freedom of movement, suspicion of police, fear of authorities, and inability to feel safe in a targeted policing environment. To that effect, Lynch spoke of the GIGO (‘garbage in, garbage out) phenomenon where data entered is faulty and data analyzed is faulty. With only 50% of crimes reported, and more complex ones, such as rape, never reported, we cannot place our decision-making and ethical choices behind data reasoning, Lynch reasoned. Moreover, the biases behind these algorithms could not be ignored when the average American commits three felonies a day, with only some of those felonies policed. Adding to that, historically the NYPD, LAPD, and CPD have accumulated racially charged information, all of which has informed crime data which is fed into the system. Unaware how data is gathered due to both traditional police secrecy and private sector secrecy, limiting the rights of a defendant to be able to question the technology used to accuse him or her of a crime is another civil liberties question.
"In a criminal case, if the Federal Bureau of Investigation uses a technique, there's going to be questions about divulging that technique or chain of custody to the defense", says Andrew Crocker, a staff attorney with the Electronic Frontier Foundation, a digital rights group in San Francisco.
“No computer program can make accurate calls on what’s free speech and what’s not,” said Mitch Stoltz, a senior staff attorney at the Electronic Frontier Foundation. “You can’t encode the Supreme Court into a computer program.”
Apple officials said on a call with reporters last week that if the iPhone in question was accessed, the company would want to know how so it can improve its encryption techniques. Declining to turn over such details to Apple engineers would "leave ordinary users at risk from malicious third parties who also may use the vulnerability," says Steve Crocker, staff attorney for the Electronic Frontier Foundation.
Andrew Crocker, a staff attorney with the Electronic Frontier Foundation, said it was "perhaps a long shot" that the government might disclose the method under the Vulnerabilities Equities Process.
"Given the profile of this case, it is an important test for the government's disclosure policy and whether it is willing to provide more transparency about how it goes about weighing disclosure against intelligence or law enforcement uses of zero days," Crocker told Ars.
Electronic Frontier Foundation is "disappointed ... that Netflix didn't explain this earlier, since we believe that all companies should be clear and transparent with their customers about what to expect when it comes to the services they subscribe to," said Jeremy Gillula, staff technologist at the at privacy-rights organization.
Earlier this month, digital rights group the Electronic Frontier Foundation (EFF) filed a strongly worded amicus brief arguing that the warrant used by the FBI for its use of malware to identify visitors of a dark web child pornography site was “unconstitutional,” and qualified as a broad, “general warrant.”