Skip to main content

Press Room

August 9, 2013

Court Blocks Enforcement of Dangerous New Jersey Law

Newark, NJ - A New Jersey federal district court judge granted motions for a preliminary injunction today, blocking the enforcement of a dangerous state law that would put online service providers at risk by, among other things, creating liability based on "indirect" publication of content by speech platforms.

The Electronic Frontier Foundation (EFF) argued for the injunction in court on behalf of the Internet Archive, as the statute conflicts directly with federal law and threatens service providers who enable third party speech online.

"The Constitution does not permit states to pass overbroad and vague statutes that threaten protected speech. The New Jersey statute created that threat and the court was right to block it," said EFF Senior Staff Attorney Matt Zimmerman. "Similarly, Section 230 of the Communications Decency Act prohibits the state from threatening to throw online providers in jail for what their users do and the statute violated that rule as well. We are grateful that the court recognized the importance of these bedrock principles to online libraries and other platforms that make the Internet the vital and robust tool it is today."

The New Jersey law at issue is an almost carbon-copy of a Washington state law successfully blocked by EFF and the Internet Archive last year. While aimed at combatting online ads for underage sex workers, it instead imposes stiff criminal penalties on ISPs, Internet cafes, and libraries that "indirectly" cause the publication or display of content that might contain even an "implicit" offer of a commercial sex act if the content includes an image of a minor. The penalties – up to 20 years in prison and steep fines – would put enormous pressure on service providers to block access to broad swaths of otherwise protected material in order to avoid the vague threat of prosecution.

"Within the past month, we've seen a coalition of state attorneys general ask Congress to gut CDA 230 to make way for harmful laws like New Jersey's," said Zimmerman. "This misguided proposal puts speech platforms at risk, which in turn threatens online speech itself. Law enforcement can and must pursue criminals vigorously, but attacking the platforms where people exercise their right to free speech is the wrong strategy."

Backpage.com separately filed suit against this law, represented by the law firm of Davis Wright Tremaine, who also joined today's argument.

For more on this case:
https://www.eff.org/cases/internet-archive-v-hoffman

Contact:

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

July 31, 2013

Coalition Led by Electronic Frontier Foundation Crowdsources Demand Letters

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of organizations and law schools today launched the newest tool in the fight against patent trolls: Trolling Effects (trollingeffects.org). The online resource aims to unite and empower would-be victims of patent trolls through a crowdsourced database of demand letters and to serve as a clearinghouse of information on the troll epidemic.

"Patent trolls will no longer be able to hide under a cloak of legal darkness," EFF Activist Adi Kamdar said. "Trolling Effects will shine a light on companies that abuse the patent system to shake down innovators."

Patent trolls use the threat of expensive and lengthy patent litigation to extort settlements from innovators large and small. Because the majority of these threats never become lawsuits, most of the threatening letters never show up in public dockets.

In June, the White House joined calls from Congress for more transparency around demand letters. Trolling Effects aims to provide that transparency. The site will allow demand-letter recipients to post the documents online, find letters received by others, and research who is really behind the threats. The site also features comprehensive guides to the patent system and a blueprint for patent reform. Journalists, academics, and policy makers will find the site a one-stop resource for researching the patent system.

"Trolling Effects began with the idea that people need to come together to defeat patent trolls," said EFF Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "Innovators who previously would have had to face the troll threat alone can use this new collaborative tool to share information and intelligence."

Other members of the Trolling Effects coalition include: Application Developers Alliance, Ask Patents, Engelberg Center on Innovation Law & Policy at NYU School of Law, Engine Advocacy, Public Knowledge, PUBPAT, and the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law.

Trolling Effects is one of several ways EFF is combating the troll plague on the U.S. patent system. Currently, EFF is collecting information on legislative proposals as part of its Defend Innovation project and will publish a report later this year. EFF also recently launched an effort to challenge patents held by Personal Audio, a notorious patent troll that has been shaking down podcasters across the country.

"The tide is turning on patent trolls," said EFF Staff Attorney Daniel Nazer. "The more people learn about their business practices, the more pressure we're able to put on them. It's time to shut down this business model once and for all."

Contacts:

Adi Kamdar
Activist
Electronic Frontier Foundation
adi@eff.org

Julie Samuels
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
julie@eff.org

Related Issues:
July 31, 2013

100+ Organizations Sign Thirteen Principles to Protect Human Rights

San Francisco - More than 100 organizations from across the globe – including Privacy International, Access, and the Electronic Frontier Foundation (EFF) – are taking a stand against unchecked communications surveillance, calling for the governments around the world to follow international human rights law and curtail pervasive spying.

The coalition of groups have all signed the International Principles on the Application of Human Rights to Communication Surveillance – 13 basic principles that spell out how existing human rights law applies to modern digital surveillance. Written in response to the increasing number of government surveillance standards that focus on law enforcement and "national security" priorities instead of citizens' rights, the principles include advice on how surveillance laws should respect the law, due process, and include public oversight and transparency. Current debates over government surveillance are often limited by outmoded definitions of content versus metadata, or stored data versus data in transit. The principles released today concentrate on the core issue: how human rights protect all information that reveals private information about an individual's communications.

"It's time to restore human rights to their place at the very heart of the surveillance debate," said EFF International Director Danny O'Brien. "Widespread government spying on communications interferes with citizens' ability to enjoy a private life, and to freely express themselves – basic rights we all have. But the mass metadata collected in the U.S. surveillance program, for example, makes it extraordinarily easy for the government to track what groups we associate with and why we might contact them. These principles announced today represent a global consensus that modern surveillance has gone too far and must be restrained."

The organizations signing the principles come from more than 40 different countries. The principles will be used to advocate for a change in how present laws are interpreted, and new laws are crafted.

"International human rights law binds every country across the globe to a basic respect for freedom of expression and personal privacy," said EFF International Rights Director Katitza Rodriguez. "The pervasiveness of surveillance makes standing up for our digital rights more important than ever. And we need those rights to survive in a digital world, where any state can spy on us all, in more detail than ever before. We know that surveillance laws need to be transparent and proportionate, with judicial oversight, and that surveillance should only be used when absolutely necessary. Everything we've heard about the NSA programs indicate that they fall far outside these international human rights principles."

For the International Principles on the Application of Human Rights to Communications Surveillance:
https://necessaryandproportionate.org/

For more on how the principles were developed:
https://www.eff.org/deeplinks/2013/07/thirteen-principles-for-human-rights

Contacts:

Danny O'Brien
   International Outreach Coordinator
   Electronic Frontier Foundation
   danny@eff.org

For Spanish-language interviews:
   Katitza Rodriguez
   International Rights Director
   Electronic Frontier Foundation
   katitza@eff.org
  

July 16, 2013

Broad Coalition of Organizations Team Up for Freedom of Association Lawsuit

San Francisco - Nineteen organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency (NSA) today for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by the Electronic Frontier Foundation (EFF), a group with years of experience fighting illegal government surveillance in the courts.

"The First Amendment protects the freedom to associate and express political views as a group, but the NSA's mass, untargeted collection of Americans' phone records violates that right by giving the government a dramatically detailed picture into our associational ties," said EFF Legal Director Cindy Cohn. "Who we call, how often we call them, and how long we speak shows the government what groups we belong to or associate with, which political issues concern us, and our religious affiliation. Exposing this information – especially in a massive, untargeted way over a long period of time – violates the Constitution and the basic First Amendment tests that have been in place for over 50 years."

At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by last month's publication of an order from the Foreign Intelligence Surveillance Court (FISC). The Director of National Intelligence (DNI) further confirmed that this formerly secret document was legitimate, and part of a broader program to collect all major telecommunications customers' call histories. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other "identifying information" for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006.

"People who hold controversial views – whether it's about gun ownership policies, drug legalization, or immigration – often must express views as a group in order to act and advocate effectively," said Cohn. "But fear of individual exposure when participating in political debates over high-stakes issues can dissuade people from taking part. That's why the Supreme Court ruled in 1958 that membership lists of groups have strong First Amendment protection. Telephone records, especially complete records collected over many years, are even more invasive than membership lists, since they show casual or repeated inquiries as well as full membership."

"The First Unitarian Church of Los Angeles has a proud history of working for justice and protecting people in jeopardy for expressing their political views," said Rev. Rick Hoyt. "In the 1950s, we resisted the McCarthy hysteria and supported blacklisted Hollywood writers and actors, and we fought California's 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, we gave sanctuary to refugees from civil wars in Central America. The principles of our faith often require our church to take bold stands on controversial issues. We joined this lawsuit to stop the illegal surveillance of our members and the people we serve. Our church members and our neighbors who come to us for help should not fear that their participation in the church might have consequences for themselves or their families. This spying makes people afraid to belong to our church community."

In addition to the First Unitarian Church of Los Angeles, the full list of plaintiffs in this case includes the Bill of Rights Defense Committee, Calguns Foundation, Greenpeace, Human Rights Watch, People for the American Way, and TechFreedom.

EFF also represents the plaintiffs in Jewel v. NSA, a class action case filed on behalf of individuals in 2008 aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans. Last week, a federal court judge rejected the U.S. government's latest attempt to dismiss the case, allowing the allegations at the heart of the suit to move forward under the supervision of a public federal court.

For the full complaint in First Unitarian v. NSA:
https://www.eff.org/node/75009

Contacts:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Dave Maass
   Media Relations Coordinator
   Electronic Frontier Foundation
   press@eff.org

July 9, 2013

Air-Conditioning Group Agrees Not to Claim Copyright Ownership of a Public Law

In a victory for free speech and open government, the Sheet Metal and Air Conditioning Contractors Association (SMACNA) has conceded that it will no longer use trumped up copyright claims to try to stop Public.Resource.Org (Public Resource) from publishing safety standards that have been incorporated into law.  Thanks to a lawsuit filed by the Electronic Frontier Foundation (EFF), Public.Resource.Org is now free to continue its mission of improving public access to the laws that govern our daily lives. 

Public.Resource.Org is a non-profit organization that acquires and makes available online a wide variety of public documents such as fire safety codes, food safety standards, and other regulations that have been incorporated into U.S. and international laws.  Such documents are often difficult to access otherwise, meaning the public cannot read them, much less comment on them.

In January, SMACNA demanded that Public.Resource.Org take offline a federally mandated air-duct standard, claiming the posting violated SMACNA’s copyright in the standard.  Represented by EFF, Fenwick & West LLP, and David Halperin, Public Resource fought back and asked a federal court to declare that the standards became part of the public domain once they were incorporated into law.

After initially attempting to avoid responding to the lawsuit at all, SMACNA has now surrendered and agreed to publicly affirm that it will no longer claim copyright in the standards.

“Whether it’s the Constitution or a building code, the law is part of the public domain,” said EFF Intellectual Property Director Corynne McSherry.  “We’re glad SMACNA is abandoning its effort to undermine that essential principle.”

In today’s technical world, public-safety codes are some of the country’s most important laws.  Public access to such codes can be crucial when, for example, there is an industrial accident, a disaster such as Hurricane Katrina, or when a homebuyer simply wishes to independently consider whether her house was built to code standards.  Publishing the codes online, in a readily-accessible format, also makes it possible for reporters and other interested citizens to search, excerpt, compare, and copy them.

“It’s about time Standards Development Organizations recognized that if a technical standard has been incorporated into federal law, the public has a right to read it, speak it and copy it freely,” said Public.Resource.Org founder Carl Malamud.  “We hope SMACNA has finally learned that lesson.”

For the stipulation:
https://www.eff.org/document/smacna-stipulation-and-judgment

For more on Public.Resource.Org vs. SMACNA:
https://www.eff.org/cases/publicresourceorg-v-smacna

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

July 8, 2013

Rejects Government's State Secret Privilege Claims in Jewel v. NSA and Shubert v. Obama

San Francisco - A federal judge today rejected the U.S. government's latest attempt to dismiss the Electronic Frontier Foundation's (EFF's) long-running challenge to the government's illegal dragnet surveillance programs. Today's ruling means the allegations at the heart of the Jewel case move forward under the supervision of a public federal court.

"The court rightly found that the traditional legal system can determine the legality of the mass, dragnet surveillance of innocent Americans and rejected the government's invocation of the state secrets privilege to have the case dismissed," said Cindy Cohn, EFF's Legal Director. "Over the last month, we came face-to-face with new details of mass, untargeted collection of phone and Internet records, substantially confirmed by the Director of National Intelligence. Today's decision sets the stage for finally getting a ruling that can stop the dragnet surveillance and restore Americans' constitutional rights."

In the ruling, Judge Jeffrey White of the Northern District of California federal court agreed with EFF that the very subject matter of the lawsuit is not a state secret, and any properly classified details can be litigated under the procedures of the Foreign Intelligence Surveillance Act (FISA). As Judge White wrote in the decision, "Congress intended for FISA to displace the common law rules such as the state secrets privilege with regard to matter within FISA's purview." While the court allowed the constitutional questions to go forward, it also dismissed some of the statutory claims. A status conference is set for August 23.

EFF's Jewel case is joined in the litigation with another case, Shubert v. Obama.

"We are pleased that the court found that FISA overrides the state secrets privilege and look forward to addressing the substance of the illegal mass surveillance," said counsel for Shubert, Ilann Maazel of Emery Celli Brinckerhoff & Abady LLP. "The American people deserve their day in court."

Filed in 2008, Jewel v. NSA is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. The case is supported by declarations from three NSA whistleblowers along with a mountain of other evidence. The recent blockbuster revelations about the extent of the NSA spying on telecommunications and Internet activities also bolster EFF's case.

For the full decision:
https://www.eff.org/node/74895

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contacts:

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

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

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

Related Issues:
July 1, 2013

EFF Asks Federal Appeals Court to Clear Researcher Who Revealed AT&T Security Flaw

San Francisco - A team of computer-crime legal experts on Monday filed an appeal of the federal felony conviction and lengthy prison sentence handed down to Andrew "Weev" Auernheimer, a computer researcher who revealed a massive security flaw in AT&T's website and was subsequently prosecuted under the Computer Fraud & Abuse Act (CFAA).

The Electronic Frontier Foundation (EFF) joined law professor Orin Kerr, Internet attorney and EFF fellow Marcia Hofmann, and Weev's trial lawyers Tor Ekeland and Mark Jaffe in filing the brief with the 3rd U.S. Circuit Court of Appeals. The appeal argues the government's flawed prosecution theory under the CFAA resulted in an improper conviction and prison sentence.

"The government set out to make an example of Auernheimer," EFF Staff Attorney Hanni Fakhoury said. "But the only message this sends to the security-research community is that if you discover a vulnerability, you could go to jail for sounding the alarm."

In 2010, Auernheimer's co-defendant Daniel Spitler discovered that AT&T had configured its servers to make the email addresses of iPad owners publicly available on the Internet. Spitler wrote a script and collected roughly 114,000 email addresses as a result of the security flaw. Auernheimer then distributed the list of email addresses to media organizations as proof of the vulnerability, ultimately forcing AT&T to acknowledge and fix the security problem.

"This case is about the freedom to surf the Internet," said Kerr, a professor at the George Washington University Law School. "Congress never intended to criminalize visiting a public website."

Nevertheless, federal prosecutors went after Auernheimer and Spitler, charging each with identity theft and conspiracy to violate the CFAA—the same law used against Internet activist Aaron Swartz, who committed suicide this year amidst a similarly heavy-handed federal prosecution. Spitler accepted a plea deal in June 2011, while Auernheimer unsuccessfully fought the charges in a trial. Auernheimer was convicted and sentenced to 41 months in prison in March.

"Auernheimer was aggressively prosecuted for an act that caused little harm and was intended to be—and ultimately was—in the public interest," Hofmann said. "The CFAA's vague language gives prosecutors great latitude to abuse their discretion and throw the book at people they simply don't like. That's as evident here as it was in the prosecution of Aaron Swartz."

Auernheimer is currently incarcerated in a Special Housing Unit at the Allenwood Federal Correctional Complex in White Deer, Penn.

"Anyone who cares about the free flow of information on the Internet should be concerned about this case," Ekeland said. "The government is criminalizing computer behavior that millions of Americans engage in every day. The government's reckless and myopic prosecution of Auernheimer for obtaining public information from a public website endangers that vital aspect of the Internet and our national economy, which depends on the free flow of information."

On June 20, Reps. Zoe Lofgren and Jim Sensenbrenner, and Sen. Ron Wyden introduced "Aaron's Law" in Congress, a bill that would reform the CFAA. One element of the legislation would reform the laws that were used to convict Auernheimer.

For the full opening brief for the appeal:
https://www.eff.org/cases/us-v-auernheimer

Contacts:

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

Marcia Hofmann
   Internet Lawyer and EFF Fellow
   Law Office of Marcia Hofmann
   marcia@marciahofmann.com

Tor Ekeland
   Tor Ekeland, P.C.
   tor@torekeland.com

June 27, 2013

Hearing Set for 10am Friday in Newark

Newark, NJ - The Internet Archive has filed a new legal challenge against a New Jersey state law that aims to make online service providers criminally liable for providing access to third parties' materials, conflicting directly with federal law and threatening the free flow of information on the Internet. A hearing on the Internet Archive's request for a preliminary injunction against the law is set for 10am Friday at the federal courthouse in Newark.

This is the second time that the Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to block enforcement of a law that's aimed at combatting online ads for underage sex workers but instead includes language that could put online libraries and other service providers at risk. The New Jersey statute is an almost carbon copy of a law successfully blocked by EFF and the Internet Archive last year.

"The Internet Archive strongly supports law enforcement efforts to combat child sex trafficking, but when lawmakers aren't careful, they can undermine the companies that foster the production and exchange of legitimate online content," said Digital Librarian Brewster Kahle, founder of the Internet Archive. "Our mission is to archive the World Wide Web and other digital materials for researchers, historians, and the general public. For us and others to do this work, we need laws whose effects fall only on lawbreakers so we can concentrate on the preservation of history."

The New Jersey law (section 12(b)(1) of the "Human Trafficking Prevention, Protection, and Treatment Act") could impose stiff penalties – up to 20 years in prison and steep fines – on ISPs, Internet cafes, and libraries that "indirectly" cause the publication, dissemination, or display of content that contains even an "implicit" offer of a commercial sex act if the content includes an image of a minor. Especially given the vagueness of the standard, service providers would feel enormous pressure to block access to broad swaths of otherwise protected material in order to minimize the risk of such harsh penalties.

The New Jersey law squarely conflicts with both the First Amendment and federal statute: Section 230 of the Communications Decency Act (CDA 230). The First Amendment bars vague criminal statutes because of the obvious risk of sweeping and improper application, as well as the resulting chilling effect on behalf of people subject to the law. Moreover, CDA 230 ensures that Internet intermediaries are protected from liability for what their users do and establishes clear national Internet policy to avoid a confusing patchwork of state laws.

"Section 230 of the Communications Decency Act requires states to direct their law enforcement efforts towards punishing criminals for their actions, not the providers of the online services that they use," said EFF Senior Staff Attorney Matt Zimmerman. "The Internet is the greatest tool for speech and communications ever invented, and it can be used for everything from inspirational to criminal purposes. However, targeting entities like the Internet Archive and other service providers for users' bad behavior is enormously shortsighted and puts at risk the socially beneficial content that their services facilitate. Congress got it right: online speech is best protected when the states leave providers alone."

"Free speech is threatened when states pass vague and draconian statutes like this one," said Frank Corrado, co-counsel with EFF on behalf of the Internet Archive in this case. "It's not enough to identify a serious problem like sex trafficking. To fight it, especially when speech is involved, the state has to be careful with its solution. The state of New Jersey clearly did not do that here."

Backpage.com, also a plaintiff in last year's successful court challenge to Washington's law, has separately filed suit asking the court to set aside the New Jersey statute.

For more on the New Jersey case, Internet Archive v. Hoffman
https://www.eff.org/cases/internet-archive-v-hoffman

For more on the Washington case, Internet Archive v. McKenna:
https://www.eff.org/cases/internetarchive-v-mckenna

Contact:

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

June 27, 2013

Author and Critic Deepens EFF's Security Expertise as NSA Scandal Intensifies

San Francisco - The Electronic Frontier Foundation (EFF) is honored to announce the newest member of its Board of Directors: renowned security expert Bruce Schneier.

Schneier is widely acclaimed for his criticism and commentary on everything from network security to national security. His insight is particularly important as we learn more and more about the unconstitutional surveillance programs from the National Security Agency and the depth and breadth of data the NSA is collecting on the public.

"EFF is one of the leading organizations fighting the government's unconstitutional spying, marshaling legal and technological expertise to battle surveillance in the courtroom and in Congress," said Schneier. "I'm excited to work together with the board and the staff as we learn more about this spying and how we can shut it down."

Schneier's first bestseller, "Applied Cryptography," was described by Wired as "the book the National Security Agency wanted never to be published." He's written a number of other influential books – including "Secrets and Lies" and "Liars and Outliers" – which, along with his monthly newsletter "Crypto-Gram" and his "Schneier on Security" blog, have reached hundreds of thousands of people with candid and lucid analysis of security issues. Schneier has also testified to Congress about the long-range security threat of unchecked presidential power.

"Bruce is one of America's premiere technologists – the person both experts and the general public turn to when they need answers to tough security questions," said EFF Executive Director Shari Steele. "We are very proud to have him join our Board of Directors to help EFF meet the challenges of the years ahead."

In addition to Schneier, EFF's Board of Directors includes John Perry Barlow, Brian Behlendorf, John Buckman, Lorrie Cranor, David Farber, John Gilmore, Brewster Kahle, Pam Samuelson, Brad Templeton, and Jonathan Zittrain.

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

June 26, 2013

Big Win in the Patent Office Curtails Troll's Lawsuit Campaign

San Francisco - The Electronic Frontier Foundation (EFF) has throttled a notorious patent used to wrongfully demand payment from cities and other municipalities that use tracking systems to tell transit passengers if their buses and trains are on time.

The United States Patent and Trademark Office (USPTO) has drastically narrowed the patent owned by ArrivalStar after EFF filed a formal request to reexamine the patent's legitimacy with the help of the Samuelson Law, Technology, and Public Policy Clinic at Berkeley Law. The ArrivalStar patent had been used as the basis for dozens of lawsuits against entities like the state of California, the city of Cleveland, and the Illinois Commuter Rail.

"This is an important victory for municipalities across the country that were faced with a tough choice: fighting an expensive lawsuit, paying ArrivalStar's settlement demands, or abandoning a public service," said EFF Staff Attorney Julie Samuels, the Mark Cuban Chair to Eliminate Stupid Patents. "We're gratified the patent office recognized that you can't patent something as obvious, broad, and vague as 'tracking something and notifying customers about it.'"

ArrivalStar had claimed its patent was based on an invention from 1999 and argued that many transit-tracking systems – as well as some package-tracking services – were infringing. But EFF and the Samuelson Clinic were able to show that as far back as 1992, public technical reports described a "Smart Bus system" that used the same methods described in the ArrivalStar patent. In the patent office's ruling, all but two of the patent's claims were struck down, fundamentally undermining any future attempts from ArrivalStar to use this patent to sue over transit-tracking systems.

"The ArrivalStar patent is an example of the current chronic misuse of software patents," said Jason Schultz, EFF Fellow and Co-Director of the Samuelson Clinic. "When the patent office issues a bad patent, it gives patent trolls a dangerous weapon to use against both small and large businesses – and in the end, consumers get fewer choices and higher prices. Even though we were eventually able to disarm this threat, a lot of damage was done in the meantime, and there are still a lot of bad patents out there."

EFF is currently working to bust a dangerous patent that a Texas company is using to shake down podcasts and podcasters like How Stuff Works and Adam Carolla, in addition to smaller podcasters. You can learn more about EFF's efforts to fix America's patent system at https://defendinnovation.org.

For the full decision from the USPTO:
https://www.eff.org/document/arrivalstar-patent-decision-uspto

Contact:

Julie Samuels
   Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   julie@eff.org

Related Issues:
June 26, 2013

Lawsuit Seeks Transparency Before Implementation of a 'Bigger, Faster and Better' Biometrics System

San Francisco - As the FBI is rushing to build a "bigger, faster and better" biometrics database, it's also dragging its feet in releasing information related to the program's impact on the American public. In response, the Electronic Frontier Foundation (EFF) today filed a lawsuit to compel the FBI to produce records to satisfy three outstanding Freedom of Information Act requests that EFF submitted one year ago to shine light on the program and its face-recognition components.

Since early 2011, EFF has been closely following the FBI's work to build out its Next Generation Identification (NGI) biometrics database, which would replace and expand upon the Integrated Automated Fingerprint Identification System (IAFIS). The new program will include multiple biometric identifiers, such as iris scans, palm prints, face-recognition-ready photos, and voice data, and that information will be shared with other agencies at the local, state, federal and international levels. The face recognition component is set to launch in 2014.

"NGI will result in a massive expansion of government data collection for both criminal and noncriminal purposes," says EFF Staff Attorney Jennifer Lynch, who testified before the U.S. Senate on the privacy implications of facial recognition technology in July of last year. "Biometrics programs present critical threats to civil liberties and privacy. Face-recognition technology is among the most alarming new developments, because Americans cannot easily take precautions against the covert, remote, and mass capture of their images."

In the complaint filed with the U.S. District Court for the Northern District of California, EFF is asking a judge to enforce EFF's FOIA requests, which were sent to the FBI in June and July of last year. The information sought includes agreements and discussions between the FBI and various state agencies regarding the face-recognition program; records addressing the reliability of face-recognition technology; and documentation of the FBI's plan to merge civilian and criminal records in a single repository. EFF is also seeking disclosure of the total number of face-recognition capable records currently in the FBI's database, as well as the proposed number at deployment.

NGI will have an unprecedented impact on Americans' privacy interests, and yet the FBI has not updated its Privacy Impact Assessment since 2008, well before it built the system and signed agreements with several states for an early roll-out of the program.

"Before the federal government decides to expand its surveillance powers, there needs to be a public debate," Lynch says. "But there can be no public debate until the details of the program are presented to the public."

For the full complaint:
https://www.eff.org/node/74758

Contact:

Jennifer Lynch
   Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

Related Issues:
June 4, 2013

Lawsuit Fighting Reference Uses Could Damage Fair Use

San Francisco - The Electronic Frontier Foundation (EFF) urged an appeals court today to affirm that the fair use doctrine protects the creation of an invaluable digital library.

For the past eight years, major university libraries have collaborated with Google to digitize their collections. One result has been 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 users to access the digitized books in their entirety – it merely does a keyword search and delivers titles and page numbers as results, enabling students and others to find the book at a library or to purchase a copy.

The Authors Guild sued HathiTrust and several universities over the service, claiming that the digitization that led to the creation of the database violates their members' copyrights. A federal court in New York correctly disagreed with the Authors Guild, ruling that digitizing the books in order to enhance research and enable access is a clear legal fair use of copyrighted material. The Authors Guild has now taken its claims to the Second U.S Circuit Court of Appeals. In an amicus brief filed today, EFF argues that accepting the Authors Guild's wrongheaded arguments could hurt fair use, innovation, and the public interest.

"Fair use is a critical part of copyright law – ensuring that copyright serves, rather than thwarts, innovation," said EFF Intellectual Property Director Corynne McSherry. "This library gives scholars and students an unparalleled ability to search and access knowledge and gives authors new audiences for their works. It's precisely the kind of project that the fair use doctrine was designed to protect."

In particular, EFF urged the appeals court to reject an argument raised in another amicus brief from the Associated Press (AP) arguing that fair use should only protect copies that are somehow "expressive" and limited to "non-commercial" uses. But this would drastically narrow the scope of fair use protection. In our digital age, copying is an integral and inescapable part of many valuable technologies.

"After all, email, web browsers, search engines, and DVRs all work by copying data to the memory of a device. If that's not fair use, then we've got a clumsy and expensive technological future coming up," said Staff Attorney Daniel Nazer. "If the Authors Guild and the AP get their way, copyright law would become a roadblock to many of the benefits it was designed to promote."

Public Knowledge and the Center for Democracy and Technology joined EFF in today's amicus brief. Rochelle Woods and Deepak Gupta from the law firm of Farella Braun and Martel LLP submitted the brief on behalf of the public interest groups.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-appeals-court

For more about Authors Guild v. Hathitrust:
https://www.eff.org/cases/authors-guild-v-hathitrust

Contacts:

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

Daniel Nazer
   Staff Attorney
   Electronic Frontier Foundation
   daniel@eff.org

May 30, 2013

Dozens of Industry Leaders Argue APIs That Are Open Are Critical to Innovation, Interoperability

San Francisco - Dozens of computer scientists urged an appeals court today to block the copyright claims over application programming interfaces (APIs) in the Oracle v. Google court battle, arguing that APIs that are open are critical to innovation and interoperability in computers and computer systems.

The Electronic Frontier Foundation (EFF) represents the 32 scientists – including leaders like MS-DOS author Tim Paterson and ARPANET developer Larry Roberts – in the amicus brief filed in the U.S. Court of Appeals for the Federal Circuit today. The group urges the court to uphold a decision from U.S. District Judge William Alsup finding that APIs are not copyrightable, explaining that Oracle's attempt to over-extend copyright coverage in its case against Google was irreconcilable with the purpose of copyright law and the nature of computer science.

"The law is already clear that computer languages are mediums of communication and aren't copyrightable. Even though copyright might cover what was creatively written in the language, it doesn't cover functions that must all be written in the same way," said EFF Staff Attorney Julie Samuels. "APIs are similarly functional – they are specifications allowing programs to communicate with each other. As Judge Alsup found, under the law APIs are simply not copyrightable material."

Furthermore, as the scientists explain in today's brief, the real-world ramifications of copyrighting APIs would be severe. All software developers use APIs to make their software work with other software. For example, your Web browser uses APIs to work with various computer operating systems so it can open files and display windows on the screen. If APIs are copyrightable, then developers can control who can make interoperable software, blocking competitors and creative new products.

"Without the compatibility enabled by APIs that are open, we would not have the vibrant computer and Internet environment we experience today, with new products and services routinely changing the way we see and interact with the world," said EFF Fellow Michael Barclay. "APIs that are open spur the development of software, creating programs that the interface's original creator might never have envisioned. We hope the appeals court rejects Oracle's appeal in this case to protect technological innovation."

For the full amicus brief:
https://www.eff.org/node/74381

For the full list of signatories:
https://www.eff.org/cases/oracle-v-google/amici

Contacts:

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

Michael Barclay
   Fellow
   Electronic Frontier Foundation
   michael@eff.org

May 30, 2013

Campaign Will Use Crowd-Power and New Law to Invalidate Patent Trolls’ Claim

San Francisco - The patent trolls have gone far enough: Starting today, the Electronic Frontier Foundation (EFF) is mounting a new, focused campaign to bust the dangerous patent that a Texas company has been using to shakedown podcasters. EFF intends to challenge the original grant of that patent before the U.S. Patent and Trademark Office by proving that the company, Personal Audio, did not really invent anything new.

Claiming it owns the patent that broadly covers podcasting technology, Personal Audio is the classic example of a patent troll that neither makes nor sells anything, but uses its patent as a weapon to threaten lawsuits and extort settlement fees. This particular troll has bullied prominent podcasts and podcasters, including How Stuff Works and Adam Carolla, in addition to smaller podcasters working out of their own homes.

"Patent trolls have been wreaking havoc on innovative companies for some time now," said EFF Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "But this particular breed of troll—targeting end users, small businesses, startups, and even individuals like podcasters for simply using everyday products—is a disturbing new threat."

EFF is partnering with the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society to use a new legal tool against this patent called the "inter partes review," which was introduced by the America Invents Act. The first step is to identify "prior art," or published examples of similar or identical ideas, that existed before October 2, 1996. EFF is putting out a call today to the podcasting community to spread the word and help us collect the prior art we need to fight this dangerous patent. EFF is also looking for financial support to take on this challenge, which—even with pro bono help—will likely cost nearly $30,000.

"A podcaster working out of a garage is unlikely to have the financial resources to fight a lawsuit," said EFF Staff Attorney Daniel Nazer. "Patent trolls like Personal Audio know this and use the threat of ruinous litigation costs as a weapon. Defeating this patent at the PTO would put an end to Personal Audio's campaign."

Because of the deep and systemic problems in the American patent system, EFF is spearheading the Defend Innovation project to advocate for reform. EFF is asking the public to sign on to our petition at defendinnovation.org and to comment on seven recommended proposals we think would make the broken system work better for software. In the meantime, EFF is doing its best to rid the world of one more bad patent in the hands of a patent troll and help out podcasters who find themselves staring down the barrel of a gun.

For more on the Save Podcasting campaign:

https://www.eff.org/deeplinks/2013/05/help-save-podcasting

For technical details of the search for prior art:

http://patents.stackexchange.com/questions/3884/call-for-prior-art-system-for-disseminating-media-content-representing-episodes

Donate to fund this campaign:

https://supporters.eff.org/donate/save-podcasting

Julie Samuels
   Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   julie@eff.org

Daniel Nazer
   Staff Attorney
   Electronic Frontier Foundation
   daniel@eff.org

May 29, 2013

Draft Proposal from W3C Could Stymie Web Innovation

San Francisco - Today the Electronic Frontier Foundation (EFF) filed a formal objection to the inclusion of digital rights management (DRM) in HTML5, arguing that a draft proposal from the World Wide Web Consortium (W3C) could stymie Web innovation and block access to content for people across the globe.

The W3C's HTML working group is creating a technical standard for HTML5, an upcoming revision to the computer language that creates webpages and otherwise displays content online. The working group has accepted a draft that includes discussion of Encrypted Media Extensions (EME), which will hard-wire the requirements of DRM vendors into the HTML standard.

"This proposal stands apart from all other aspects of HTML standardization: it defines a new 'black box' for the entertainment industry, fenced off from control by the browser and end-user," said EFF International Director Danny O'Brien. "While this plan might soothe Hollywood content providers who are scared of technological evolution, it could also create serious impediments to interoperability and access for all."

DRM standards look like normal technical standards but turn out to have quite different qualities. They fail to implement their stated intention – protecting media – while dragging in legal mandates that chill the speech of technologists, lock down technology, and violate property rights by seizing control of personal computers from their owners. Accepting EME could lead to other rightsholders demanding the same privileges as Hollywood, leading to a Web where images and pages cannot be saved or searched, ads cannot be blocked, and innovative new browsers cannot compete without explicit permission from big content companies.

EFF filed this objection as its first act as a full member of W3C. EFF's goal is to broaden the discussion of the consequences of accepting DRM-based proposals like EME for the future of the Web.

"The W3C needs to develop a policy regarding DRM and similar proposals, or risk having its own work and the future of the Web become buried in the demands of businesses that would rather it never existed in the first place," said EFF Senior Staff Technologist Seth Schoen. "The EME proposal needs to be seen for what it is: a creation that will shut out open source developers and competition, throw away interoperability, and lock in legacy business models. This is the opposite of the fair use model that gave birth to the Web."

For EFF's full Formal Objection:
https://www.eff.org/pages/drm/w3c-formal-objection-html-wg

For more on DRM in HTML5:
https://www.eff.org/deeplinks/2013/05/eff-joins-w3c-fight-drm

Contacts:

Danny O'Brien
   International Outreach Coordinator
   Electronic Frontier Foundation
   danny@eff.org

Seth Schoen
   Senior Staff Technologist
   Electronic Frontier Foundation
   seth@eff.org

May 14, 2013

EFF Urges Protection of Defendants in Case Linked to Notorious Prenda Law Firm

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged a federal appeals court today to stop a copyright troll's shakedown scheme in a case linked to the notorious Prenda Law firm.

The plaintiff in this case, AF Holdings, is seeking the identity of more than 1,000 Internet users that it claims are linked to the illegal downloading of a copyrighted pornographic film. Over the protest of the Internet service providers who received subpoenas for those identities, a lower court approved the disclosure of the names. The ISPs appealed, and today EFF filed a brief in support of that appeal. EFF is asking the U.S. District Court of Appeals for the District of Columbia Circuit to help keep the legal process fair and balanced by requiring AF Holdings to simply show that it has a good faith basis for going after these defendants.

The case is one of hundreds being pursued around the country that follow the same pattern: a copyright troll looks for IP addresses that allegedly downloaded adult films via BitTorrent, files a lawsuit against thousands of Does based on those IP addresses, seeks to subpoena the ISP for the contact information of the account holder associated with that IP address, and threatens to name the alleged infringer in a copyright lawsuit, right next to the embarrassing title of a pornographic film. The Doe is then offered a chance to settle before the lawsuit is filed, usually for a few thousand dollars. The key to the business model is flouting legal procedure by suing thousands of unrelated people—located all over the country—in a single lawsuit. For the price of a $400 filing fee and some stamps, the troll can extract thousands of dollars in settlements.

"Once AF Holdings gets the names it's looking for, then it already has what it needs to put its shakedown scheme in motion," said EFF Staff Attorney Mitch Stoltz. "For the defendants, it will come down to risking being named in a lawsuit over a pornographic movie, or settling for less than the cost of hiring an attorney. As a matter of law and basic fairness, AF Holdings needs to prove that its case is on solid ground before putting more than 1,000 of Internet users in that kind of bind."

AF Holdings is one of a number of holding companies linked to Prenda Law, a firm that is facing serious questions about its use of stolen identities and fictitious signatures on key legal documents, and making other false statements to the courts. Earlier this month, a federal judge issued sanctions of more than $81,000 against Prenda and its attorneys and referred the matter to federal prosecutors.

"We're glad that judges are catching on to this abuse of the court system," said EFF Intellectual Property Director Corynne McSherry. "But while the legal system tries to find answers about Prenda Law, AF Holdings, and other copyright trolls, it's important to remember that there are real people still being victimized by these unfair lawsuits in the meantime. We hope the appellate court will recognize that copyright owners have to follow the same rules as everyone else."

Also joining EFF's amicus brief are the American Civil Liberties Union (ACLU), the ACLU of the Nation's Capital, Public Citizen, and Public Knowledge.

For the full amicus brief:
https://www.eff.org/node/74213

Contacts:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

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

May 6, 2013

Los Angeles Police Department and County Sheriff’s Department Must Release Data Under California Public Records Act

San Francisco - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Southern California (ACLU-SC) today jointly filed suit against two Los Angeles-area law-enforcement agencies over their failure to produce records related to the use of automatic license plate readers (ALPRs).

Mounted on squad cars and telephone poles, these sophisticated camera systems read license plates and record the time, date, and location a particular car was encountered. EFF and the ACLU-SC filed requests with the Los Angeles Police Department and the Los Angeles County Sheriff's Department under the California Public Records Act seeking documents relating to policy and training on ALPRs, as well as a week's worth of ALPR data collected by the agencies in 2012. While the sheriff and police departments produced some materials, they failed to provide documents related to sharing information with other agencies, and neither agency has produced the data collected during the one-week period.

"Location-based information like license plate data can be very revealing," said EFF Staff Attorney Jennifer Lynch. "By matching your car to a particular time, date and location — and building a database of that information over time — law enforcement can learn where you work and live, what doctor you go to, which religious services you attend, and who your friends are. The public needs access to data the police actually have collected to be able to make informed decisions about how ALPR systems can and can't be used."

ALPRs can record up to 14,000 plates during a single shift. According to a June 2012 story in LA Weekly, the sheriff and police departments conduct, on average, approximately 22 scans for every one of the 7 million vehicles registered in Los Angeles County. As of June, the departments reportedly logged more than 160 million data points. While the police can use this technology to match license plates against databases to find stolen or wanted cars, the systems currently record and store information on every car, even where there's no reason to think a car is connected to any crime.

"Police can and should treat location information from ALPRs like other sensitive information. They should retain it no longer than necessary to determine if it might be relevant to a crime and get a warrant if they need to keep it any longer," ACLU-SC Senior Staff Attorney Peter Bibring says. "They should limit who can access it, who they can share it with and create an oversight system to make sure the limits are followed."

The complaint was filed in Los Angeles County Superior Court. EFF and the ACLU have asked a judge to issue a writ directing the agencies to hand over all requested records and award appropriate legal fees.

For the full complaint:

http://www.eff.org/document/aclu-sd-and-eff-v-lapd-and-lasd

Contacts:

Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org

Peter Bibring
Senior Staff Attorney
ACLU of Southern California
pbibring@aclu-sc.org

April 30, 2013

Annual Report Recognizes Service Providers' Commitment to Users in the Face of Government Data Demands

San Francisco - As you search the Internet, visit websites, and update your social media accounts, you entrust a wealth of data to service providers: your thoughts, your photos, your location, and much more. What happens when the government wants access to all of this information, held by companies like Google and Facebook and AT&T? Will these providers help you fight back against unfair demands for data about your private life?

Today the Electronic Frontier Foundation (EFF) releases its third annual report, "Who Has Your Back?," which looks at major technology service providers' commitment to users' rights in the face of government data demands. EFF's report examines 18 companies' terms of service, privacy policies, advocacy, and courtroom track records, awarding up to six gold stars for best practices in categories like "require a warrant for content," "tell users about government data demands," and "publish transparency reports."

"Transparency reports have become an industry standard practice among major technology companies since we started issuing this report in 2011," said EFF Senior Staff Attorney Marcia Hofmann. "Through those reports, we've learned more about law enforcement requests for user data. We publish this annual report to encourage companies to let users know how data flows to the government, and to encourage companies to stand up for their users."

EFF's report shows that more and more Internet companies are formally promising to give users notice about law enforcement requests for information unless prohibited by law or court order. We also found a dramatic increase in the number of companies publishing law enforcement guidelines for making data requests. This year, two companies—Twitter and Sonic.net—received a full six stars, while Verizon earned no stars.

"There's a lot to celebrate in this report, but also plenty of room for improvement," said EFF Staff Attorney Nate Cardozo. "Service providers hold huge amounts of our personal data, and the government shouldn't be able to fish around in this information without good reason and a court making sure there's no abuse. This report should be a wake-up call to Internet users that they need more protection from the companies they trust with their digital communications."

For the full report "Who Has Your Back?":
https://www.eff.org/who-has-your-back-2013

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

Update: The original version of this press release said that Myspace did not receive any stars.  However, since the publication of our original report, a representative from the company has notified us about previously published law enforcement guidelines and a court case in which Myspace fought for the rights of its users. Because those guidelines and court filings are publicly available, and because the guidelines make clear that Myspace requires a warrant for the content of communications, we have amended our report to give Myspace the three relevant stars.

Related Issues:
April 24, 2013

EFF Outlines Five Ways the FAA Can Protect the Public and Ensure Transparency

San Francisco - The Federal Aviation Administration's (FAA's) proposed privacy requirements for domestic drone test sites are not robust enough to protect the public, the Electronic Frontier Foundation (EFF) argues in its official comments filed with the agency this week. EFF Staff Attorney Jennifer Lynch outlines five key recommendations to safeguard privacy and civil liberties while allowing unmanned-aerial-system operators to explore the potentials of the emerging technology.

"When it comes to drones, the FAA needs to examine privacy issues with the same rigor it applies to flight and mechanical safety," said Lynch, who has filed two successful lawsuits against the federal government over drone-related Freedom of Information Act requests. "Just as vague safety regulations for drones could result in damage to life or property, vague privacy measures could harm civil liberties."

President Barack Obama signed the FAA Modernization and Reform Act last year, which included a requirement that the agency start the process of integrating drones into the National Airspace system through a test-site program. The FAA plans to authorize six separate test sites for drones in the U.S. Mindful of the growing public interest in the civil-liberties implications of domestic aerial surveillance, the FAA recently released proposed privacy requirements for operators of these sites. However, the FAA's proposal falls short of truly protecting privacy for members of the general public who may be caught by the drones' surveillance cameras during test flights.

In the comments submitted today, EFF says:

1. The FAA should develop a model privacy policy and provide it to test-site operators.

2. Test-site operators should be required to report the surveillance and data-capturing capabilities of each drone.

3. Test-site operators should measure the surveillance capabilities and limits for each drone.

4. The FAA should not limit its privacy-protecting regulations to the test-site program but should extend them across its entire drone authorization process.

5. The public must have meaningful access to the wealth of drone data collected by the FAA.

"We're looking for specificity and transparency," Lynch said. "Testing sites should not only disclose what data they plan to collect, but what kind of data these drones are capable of collecting. And the public should have access to that information."

For the full comments submitted to the FAA:
https://www.eff.org/document/effs-comments-faa

For more information about EFF's work on drones:
https://www.eff.org/foia/faa-drone-authorizations

Contact:

Jennifer Lynch
   Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

Related Issues:
April 9, 2013

EFF Fights for Cell Phone Privacy in Washington State

San Francisco - The Electronic Frontier Foundation (EFF) urged the Washington State Supreme Court Monday to recognize that text messages are "the 21st Century phone call" and require that law enforcement officers obtain a warrant before reading texts on someone's phone.

"Text messages are a ubiquitous form of communication, and their context can be as private as any telephone conversation," said EFF Staff Attorney Hanni Fakhoury. "We use texts to talk to our wives and husbands, our kids, our co-workers, and more. Police should not be able to sift through these personal exchanges on a whim – they must show probable cause and get a warrant before accessing this information."

In this case, police seized a cell phone during a drug investigation and monitored incoming messages. Officers responded to several texts, setting up meetings that resulted in two arrests, without first getting a warrant. Prosecutors have argued that no warrant was required because there should be no expectation of privacy in text messages, as anyone can pick up someone else's phone and read what's stored there. But in two related amicus briefs filed Monday, EFF argues that searching the phone for the texts without a warrant clearly violates the Constitution.

"The state argues that just because someone can intercept a communication, you should reasonably expect that communication to be intercepted. That's a dangerous way to interpret the Fourth Amendment," said Fakhoury. "The prosecutors' theory would eviscerate any privacy protections in the digital age. We're asking the Washington State Supreme Court here to recognize what's at stake and to require a warrant before allowing officers to read text messages on a cell phone."

Venkat Balasubramani of FOCAL PLLC in Seattle, Washington, served as EFF's local counsel in the cases.

For the full amicus briefs:
https://www.eff.org/cases/washington-state-text-message-privacy-cases

Contacts:

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

Related Issues:
March 25, 2013

EFF Urges Appeals Court to Protect the Rights of TV Innovators

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court Friday to protect the rights of start-up innovators working to improve TV viewing and other entertainment experiences, arguing that big content companies should not be allowed to block add-on technology with baseless copyright claims.

At issue in the 9th U.S. Circuit Court of Appeals is whether TV networks can shut down a TV streaming service called Aereokiller, which sends over-the-air television signals to users' personal computing devices. The networks claim that Aereokiller violates copyright by retransmitting their signals. In the amicus brief filed Friday, EFF asks the court to look to recent court rulings that have blocked TV networks' various attempts to quash new products and constrict viewers' rights.

"Many of the services that Hollywood is trying to shut down are simply conceptually moving the antenna that used to be on your roof to their roof," said EFF Staff Attorney Mitch Stoltz. "TV viewers have a right to choose when and how they watch free TV – and courts have recognized that. Networks can't block consumer choices just because they didn't think of it first and want a cut of the profits from someone else's idea."

EFF's brief argues that without consistent rulings supporting TV viewers' legal and customary rights, start-up innovators and others won't enter the market.

"This isn't just about the products and services that are being developed today," said Stoltz. "It's about what innovators could come up with tomorrow, if they aren't discouraged by TV networks trying to claim copyright infringement when it just doesn't apply. We're asking the court here to prevent Hollywood from twisting the law at the expense of viewers' customary rights."

For the full brief in this case:
https://www.eff.org/document/amicus-brief-17

Contact:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

March 20, 2013

SB 467 Requires Law Enforcement to Obtain a Warrant Before Seizing Private Electronic Communications

Sacramento - Senator Mark Leno today announced the introduction of groundbreaking new legislation that protects email privacy. Senate Bill 467, sponsored by the Electronic Frontier Foundation (EFF), requires state law enforcement agencies to obtain a warrant before asking service providers to hand over a private citizen's emails.

"No law enforcement agency could obtain someone's mail or letters that were delivered to their home without first securing a search warrant, but that same protection is surprisingly not extended to our digital life," said Senator Leno, D-San Francisco. "Both state and federal privacy laws have failed to keep up with the modern electronic age, and government agencies are frequently able to access sensitive and personal information, including email, without adequate oversight. SB 467 repairs the existing holes in California's digital protection laws, ensuring that electronic communications can only be accessed by law enforcement with a warrant."

EFF has long been concerned with law enforcement claims that investigators do not need a search warrant to obtain any email that has been opened or has been stored on a server for 180 days. The U.S. Department of Justice's Office of Legal Policy recently announced it would support changes to federal law that would require a warrant in such cases. While this is a step in the right direction, updated state laws are still needed in order to protect consumers and the email services they use.

"California, the home of many technology companies, should be a leader in protecting the privacy of people's electronic communications," said EFF Staff Attorney Hanni Fakhoury. "Many of the state's technology companies have already indicated that they require a search warrant before disclosing the contents of communications. With SB 467, the warrant requirement becomes the status quo for all electronic communication providers and all law enforcement agencies across the state. We're happy to work with Senator Leno in ensuring our privacy protections keep up with the rapid changes in technology."

The bill is also supported by the ACLU of California.

"Californians shouldn't have to choose between using modern technology and protecting their privacy," said Nicole Ozer, Technology & Civil Liberties Policy Director of the ACLU of California. "SB 467 would ensure that content stored in the cloud receives the same level of protection as content stored on a laptop or in a desk drawer."

Contacts:

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

Ali Bay
   Office of Senator Mark Leno
   ali.bay@sen.ca.gov

Related Issues:
March 18, 2013

Hacker Who Revealed Security Flaw in AT&T Servers Sentenced to 3.5 Years in Prison

San Francisco - Andrew "Weev" Auernheimer today was sentenced to 41 months in federal prison for revealing to media outlets that AT&T had configured its servers to allow the harvesting of iPad owners' unsecured email addresses. The Electronic Frontier Foundation (EFF) is joining Auernheimer's legal team to litigate his appeal before the Third Circuit Court of Appeals, arguing that fundamental problems with computer crime law result in unfair prison sentences like the one in this case.

In 2010, Auernheimer's co-defendant Daniel Spitler discovered that AT&T deliberately configured its servers so that when they were queried with a number that matched an iPad's SIM card identifier, AT&T would reveal the email address of the iPad's owner. Spitler wrote a script that used the security hole to collect roughly 120,000 email addresses. Then Auernheimer sent a list of the email addresses to several journalists to spotlight the security problem. AT&T subsequently fixed the vulnerability.

The government charged Spitler and Auernheimer with conspiracy to violate the federal Computer Fraud and Abuse Act (CFAA) and identity theft law. Spitler reached a plea deal with the government in June 2011. In November, Auernheimer was convicted of two felonies after Spitler testified against him.

"Weev is facing more than three years in prison because he pointed out that a company failed to protect its users' data, even though his actions didn't harm anyone," EFF Senior Staff Attorney Marcia Hofmann said. "The punishments for computer crimes are seriously off-kilter, and Congress needs to fix them."

EFF has long criticized the CFAA for its vague language, broad sweep, and heavy penalties. Since the tragic death of programmer and Internet activist Aaron Swartz in January, EFF has redoubled its efforts to reform the law.

"Weev's case shows just how problematic the Computer Fraud and Abuse Act is," EFF Staff Attorney Hanni Fakhoury said. "We look forward to reversing the trial court's decision on appeal. In the meantime, Congress should amend the CFAA to make sure we don't have more Aaron Swartzs and Andrew Auernheimers in the future."

Other attorneys on Auernheimer's appellate team are Tor Ekeland and Mark H. Jaffe of Tor Ekeland P.C., Nace Naumoski, and Professor Orin Kerr of the George Washington University Law School.

For more on this case:
https://www.eff.org/cases/us-v-auernheimer

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

March 15, 2013

Court Finds NSL Statutes Violate First Amendment and Separation of Powers

San Francisco - A federal district court judge in San Francisco has ruled that National Security Letter (NSL) provisions in federal law violate the Constitution. The decision came in a lawsuit challenging a NSL on behalf of an unnamed telecommunications company represented by the Electronic Frontier Foundation (EFF).

In the ruling publicly released today, Judge Susan Illston ordered that the Federal Bureau of Investigation (FBI) stop issuing NSLs and cease enforcing the gag provision in this or any other case. The landmark ruling is stayed for 90 days to allow the government to appeal.

"We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," said EFF Senior Staff Attorney Matt Zimmerman. "The government's gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience."

EFF's NSL legal team. From left: Mark Rumold, Kurt Opsahl, Cindy Cohn, Matt Zimmerman and Nate Cardozo.

The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters -- on its own authority and without court approval -- to telecommunications companies demanding information about their customers. The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.

In today's ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional. In addressing the concerns of the service provider, the court noted: "Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate."

"The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power," said EFF Legal Director Cindy Cohn. "The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security."

EFF first brought this challenge on behalf of its client in May of 2011.

For the full order:
https://www.eff.org/document/nsl-ruling-march-14-2013

For more on this case:
https://www.eff.org/cases/re-matter-2011-national-security-letter

Contacts:

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

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

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

Related Issues:
March 12, 2013

EFF continues to chronicle harm in “Unintended Consequences” white paper

San Francisco - Fifteen years after Congress passed the Digital Millennium Copyright Act, and just as legislators and the public are debating the law's dangerous impact on consumers who want to unlock their cell phones, the evidence of much broader negative effects continues to mount. In its latest update to the comprehensive white paper, "Unintended Consequences: Fifteen Years Under the DMCA," the Electronic Frontier Foundation (EFF) catalogs how content owners have misused the DMCA to threaten fair use, free speech, research, competition and innovation.

EFF's research highlights how the DMCA's prohibition on "circumventing" digital rights management (DRM) and "other technical protection measures" has been used to intimidate scientists and inventors and stifle fair uses, harming both business and consumer interests. The latest update to the chronicle of DMCA overreach includes new case studies, including several that illustrate how the law impacts engineers working with video-game consoles.

"It is great to see the new awareness of the issues with cell phone unlocking, but phones are just the tip of the iceberg of problems the DMCA has created," EFF Intellectual Property Director Corynne McSherry said. "It kills aftermarkets, interferes with legitimate research, and squelches creativity in new media."

Highlights:

• In 2010, Sony sued a group of researchers, including hacker George Hotz (a.k.a. Geohot), who had helped expose security flaws in the Playstation 3 that would enable users to run Linux on their machines again — something Sony previously supported but then tried to prevent.

• In 2011, Sony threatened the Norway-based website Gitorious.org, an online collaborative space for the open-source community, when its users initiated projects involving the Playstation 3 console. Citing a lack of resources to fight Sony, Gitorious not only removed the projects, but it also blocked search requests for "playstation," "sony " and "ps3."

• In 2011, Activision threatened hacker Brandon Wilson when he published research on the workings of a scanning device that was part of one of the company's video games. Activision's claim that Wilson's research would allow users to unlock game content without purchase was unwarranted, but it nevertheless succeeded in pressuring Wilson to remove his research from his blog and to abandon his work on the project.

"Section 1201 has done a lot more harm than good," McSherry said. "It's long past time to fix it, or, even better, get rid of it altogether." Outraged users can go to http://fixthedmca.org/ to find out how they can help.

The white paper is available here as a pdf.

Contacts:

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

Related Issues:
March 11, 2013

Prenda Law Firm attempts to silence critics DieTrollDie and FightCopyrightTrolls

San Francisco - The Electronic Frontier Foundation (EFF) is joining with attorney Charles Lee Mudd Jr. to represent two blogs caught up in a bizarre lawsuit filed by Paul Duffy and Prenda Law LLC, Duffy's copyright troll law firm.

Copyright trolls try to make money by suing Internet users under various copyright laws. Their tactics include targeting large groups of anonymous "John Doe" defendants for downloading files on BitTorrent, seeking their identities, and exploiting the massive damages in copyright law in order to pressure defendants into settling quickly.

Duffy and his firm's tactics are frequent subjects of criticism on FightCopyrightTrolls (fightcopyrighttrolls.com) and DieTrollDie (dietrolldie.com), two watchdog blogs maintained by anonymous authors.

Late last month, Duffy and Prenda Law filed two separate defamation lawsuits in Illinois state court, which have since been removed to federal courts in the Northern and Southern districts of Illinois. The complaints claim the bloggers and their commenters defamed Duffy and his firm, despite the free speech protections guaranteed by the First Amendment.

"These lawsuits are a blatant attempt to abuse the legal process to punish critics," said EFF Staff Attorney Mitch Stoltz.

Immediately after filing the suits, Duffy served a subpoena on Automattic Inc., the company that owns the Wordpress blogging platform. The subpoena seeks the IP addresses of everyone who ever visited the two websites, threatening the privacy of the bloggers and their readers. On Friday, Automattic rejected the subpoena in a letter to Duffy, calling it "legally deficient and objectionable" and a violation of the First Amendment right to speak anonymously.

"Not only is the subpoena improper under the First Amendment, it fails to comply with the simple rules for pre-trial discovery," EFF Staff Attorney Nate Cardozo added.

Automattic has stated unequivocally that it will not turn over any information until the bloggers' challenge to the lawsuit has played out in court. In order to protect this right to anonymity, EFF and the Mudd Law Office will not publicly release the names of their clients in this suit.

"Critics of the copyright troll business model have the right to speak anonymously without their identities being exposed to the trolls," said Kurt Opsahl, EFF Senior Staff Attorney. "These sweeping subpoenas create a chilling effect among those who have spoken out against Prenda."

Notorious copyright troll John Steele previously filed a similar lawsuit against the two blogs but dropped the suit last week without explanation.

Contacts:

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

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Related Issues:
February 27, 2013

EFF and High-Tech Innovators Demand Hearings on SHIELD Act

Washington, D.C. - A coalition of entrepreneurs, investors, and innovators have joined the Electronic Frontier Foundation (EFF) and Engine Advocacy today in requesting that Congress schedule hearings on patent trolls and the SHIELD Act, introduced in the U.S. House of Representatives to quash the rash of patent lawsuit abuse.

In an open letter to the House Committee on the Judiciary, the coalition—including investor Mark Cuban and Reddit co-founder Alexis Ohanian—explains how patent trolls are chilling innovation, which in turn stifles job growth in the expanding tech sector. Researchers estimate that the U.S. economy took at least a $29 billion hit in 2011 due to patent trolls, which make no products but instead assert patents as their sole business model.

"We have a shameful situation in this country, with patents and patent litigation hurting both competition and innovation. That's bad for both consumers and small businesses," said Cuban. "The time for Congress to act is now."

The letter expresses the coalition's support for the SHIELD (Saving High-Tech Innovators from Egregious Legal Disputes) Act, a bipartisan bill from Rep. Peter DeFazio and Rep. Jason Chaffetz that would create real and appropriate consequences for patent lawsuit abuse. Under the Act, if a patent troll loses in court because the patent is found to be invalid or there is no infringement, then the troll pays the other side's legal costs, which often reach into the millions of dollars.

"It's time to force these trolls to take responsibility for the damage they cause with their bogus claims," said Julie Samuels, EFF Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents. "The introduction of the SHIELD Act sends an important message to patent trolls: their business model is dangerous and their days are numbered."

In addition to Cuban and Ohanian, managing directors of prominent venture capital firms the Foundry Group and Union Square Ventures also signed the letter. They're joined by David Cohen, founder and CEO of Techstars, as well as Paul Sieminski, general counsel to Auttomatic, which is the company behind the popular blogging platform Wordpress, among other signers.

For the full open letter:
https://www.eff.org/document/open-letter-shield-act

Contacts:

Julie Samuels
   Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   julie@eff.org

Rebecca Jeschke
   Media Relations Director and Digital Rights Analyst
   Electronic Frontier Foundation
   press@eff.org

Related Issues:
February 22, 2013

Wrongheaded Copyright Claim Blocks Online Posting of Important Technical Standards

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal judge today to protect the free speech rights of an online archive of laws and legal standards after a wrongheaded copyright claim forced the removal of a document detailing important technical standards required by the federal government and several states.

EFF and co-counsel David Halperin represent Public.Resource.Org, Inc., a non-profit organization that improves the public's access to laws and codes that affect their lives. As part of its work, Public Resource acquires and makes available public safety documents such as fire safety codes, food safety standards, and other regulations that have been incorporated into U.S. and international laws. But last month, the association of Sheet Metal and Air Conditioning Contractors (SMACNA) claimed an online post of a federally-mandated 1985 standard on air-duct leakage violated its copyright and demanded the post be removed. The standards are a crucial element of U.S. federal energy conservation efforts and an integral part of model codes, such as the International Energy Conservation Code. After a threat of legal action from SMACNA, Public Resource took down the document until a court could affirm its right to publish the information.

"The public has a right to meaningful access to the laws that govern their lives," said Carl Malamud, the president and founder of Public Resource. "Technical standards like the ones in this document have the force of law, and people need to know them in order to comply with regulatory obligations, keep the public safe, and avoid costly penalties. The right of citizens to read and speak the law is fundamental to an informed citizenry in the United States and throughout the world. Ignorance of the law is no excuse, which means we have to be able to read the law."

In a petition for declaratory and injunctive relief filed today, EFF and Public Resource asked the court to rule that posting the standards does not infringe any copyright.

"Building codes and other technical specifications touch our lives every day, and Public Resource is helping to make it easier for us to access and understand how they affect us," said EFF Intellectual Property Director Corynne McSherry. "We're asking the judge today to let Public Resource continue its important work in increasing the public's access to the laws and regulations that govern us."

For the full petition:
https://www.eff.org/node/73298

Contacts:

Carl Malamud
   President and Founder
   Public Resource
   carl@media.org

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

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

February 21, 2013

Longtime Internet Activist to Focus on Global Issues

San Francisco - Digital-rights activist Danny O'Brien is back at the Electronic Frontier Foundation (EFF), rejoining the organization as its new International Director.

O'Brien will head up global strategy at EFF at a time when digital rights and freedoms are under attack across the globe. O'Brien said he's seen the effects of many of EFF's traditional concerns in privacy, free speech, and innovation play out around the world – from Internet kill switches and targeted malware aimed at vulnerable users, to privacy-invasive biometric tracking, to damaging international treaties that quash free expression.

"The last few years have been incredibly transformative for international digital rights. They've gone from theoretical threats to practical realities," O'Brien said. "The policy issues EFF works on are becoming day-to-day issues for everyone around the world."

O'Brien has a particular interest in the rights of Internet users in repressive regimes, where governments are using the rise of trackable mobile devices and a filtered Internet to control their citizens, not empower them.

"What I really don't want to happen is for people to look back at this time as the 'Golden Age' of Internet freedom because in the future we failed to stand up against a new world of threats to civil liberties," he said.

O'Brien has spent the last three years defending at-risk online reporters as the Internet advocacy coordinator at the Committee to Protect Journalists. From 2005 to 2007, O'Brien served as an EFF activist before becoming the organization's international outreach coordinator, a position he held until 2009. He is also a co-founder of the Open Rights Group, which advocates for digital civil liberties in his native Britain.

"Protecting digital rights is a global effort in our interconnected world," said EFF Executive Director Shari Steele. "We are so pleased that Danny has brought his wealth of talent and experience back to EFF to help with this important work."

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Related Issues:
February 11, 2013

EFF Urges Strict Rules to Protect Drivers’ Data

San Francisco - The Electronic Frontier Foundation (EFF) urged the National Highway Traffic Safety Administration (NHTSA) today to include strict privacy protections for data collected by vehicle "black boxes" to protect drivers from long-term tracking as well as the misuse of their information.

Black boxes, more formally called event data recorders (EDRs), can serve a valuable forensic function for accident investigations, because they can capture information like vehicle speed before the crash, whether the brake was activated, whether the seat belt was buckled, and whether the airbag deployed. NHTSA is proposing the mandatory inclusion of black boxes in all new cars and light trucks sold in America. But while the proposed rules would require the collection of data in at least the last few seconds before a crash, they don't block the long-term monitoring of driver behavior or the ongoing capture of much more private information like audio, video, or vehicle location.

"The NHTSA's proposed rules fail to address driver privacy in any meaningful way," said EFF Staff Attorney Nate Cardozo. "These regulations must include more than minimum requirements of what should be collected and stored – they need a reasonable maximum requirement as well."

The current NHTSA proposal mandates a boilerplate notice to consumers that "various systems" are being monitored. The plan also calls for a commercial tool to be made available to allow user access to black box data. In its comments submitted to the NHTSA today, EFF calls for complete and comprehensive disclosure of data collection as well as a free and open standard to access black box information.

"The information collected by EDRs is private and must remain private until the car owner consents to its use," said Cardozo. "Consumers deserve full disclosure of what is being collected, when, and how, as well as an easy and free way of accessing this data on their own. Having to buy access to your own data is not reasonable. "

In addition to submitting its own comments to the NHTSA today, EFF also joined the Electronic Privacy Information Center and a broad coalition of privacy, consumer rights, and civil rights organizations in comments urging the NHTSA to adopt specific, privacy-protecting amendments to its proposed rules.

For EFF's full comments submitted to the NHTSA:
https://www.eff.org/document/effs-comments-nhtsa-about-black-boxes-cars

Contact:

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

Related Issues:
February 4, 2013

Law Enforcement Should Not Gather Genetic Information Without a Warrant

San Francisco - The Electronic Frontier Foundation (EFF) urged the Supreme Court Friday to block DNA collection from everyone arrested for a crime, arguing that law enforcement must get a warrant before forcing people to give samples of their genetic material.

EFF's amicus brief was filed Friday in Maryland v. King – a case challenging a law in the state of Maryland that requires DNA collection from all arrestees, whether they are ultimately convicted of a crime or not. Maryland officials claim that DNA is necessary for definitive identification, but they do not use the sample to "identify" the arrestee. Instead, they use the sample for other investigatory purposes – retaining and repeatedly accessing the wealth of personal information disclosed by an individual's genetic material despite lacking individualized suspicion connecting the arrestee to another crime. This violates the Fourth Amendment.

"Your DNA is the roadmap to an extraordinary amount of private information about you and your family," said EFF Staff Attorney Jennifer Lynch. "It contains data on your current health, your potential for disease, and your family background. For government access to personal information this sensitive, the Fourth Amendment requires a warrant."

In addition to Maryland, 27 states and the federal government have laws that mandate DNA collection from anyone arrested, even if they are not yet convicted of a crime. EFF has filed amicus briefs in a number of cases challenging these unconstitutional laws. Meanwhile, the Supreme Court has shown increasing sensitivity to the power of sophisticated technology to undermine traditional privacy protections.

"Let's say you were picked up by police at a political protest and arrested, but then released and never convicted of a crime. Under these laws, your genetic material is held in a law enforcement database, often indefinitely," said EFF Senior Staff Attorney Lee Tien. "This is an unconstitutional search and seizure."

The Supreme Court is set to hear arguments in Maryland v. King later this month.

For the full brief in Maryland v. King:
https://www.eff.org/document/amicus-brief-16

Contacts:

Jennifer Lynch    Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

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

January 23, 2013

EFF and Perkins Coie File Petition to Cancel Registration of 'Gaymer' Trademark

San Francisco - A group of Reddit "gaymers" are fighting to protect the name of their online forum after a website operator managed to register the term as a trademark and then claimed the group's Reddit forum infringed his trademark rights. In a petition filed with the U.S. Patent and Trademark Office (USPTO) today, the group asks the USPTO to cancel the "gaymer" trademark registration so that people around the world can continue to use the word without interference.

The Electronic Frontier Foundation (EFF) and the law firm Perkins Coie represent the Reddit gaymers – members of the lesbian, gay, bisexual, and transgendered community who have an active interest in video games. The group was spurred into action after blogger Chris Vizzini – who registered the trademark after creating a website targeting the gaymer community at gaymer.org – sent a cease-and-desist letter complaining about the long-running subreddit group called r/gaymers.

"This registration should never have been granted," said EFF Intellectual Property Director Corynne McSherry. "Gaymer is a common term that refers to members of this vibrant gaming community, and we are happy to help them fight back and make sure the term goes back to the public domain where it belongs."

As today's petition notes, the term "gaymer" had been in widespread use for years before Vizzini applied for a trademark. In fact, there's even a GaymerCon conference.

"Trademarks have one primary purpose: to protect consumers from confusion about the source of goods or services," said EFF Staff Attorney Julie Samuels. "This registration isn't being used to protect consumers – it's being used to threaten free speech."

For the full petition to cancel:
https://www.eff.org/document/petition

For more from r/gaymers:
http://www.reddit.com/r/gaymers/comments/174ooy/update_rgaymers_is_fighting_back_the_trademark/

Contacts:

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

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

January 22, 2013

When Law Enforcement Tracks Cars, Both Passengers and Drivers Deserve Privacy Protections

San Francisco - The Electronic Frontier Foundation (EFF) urged the high court of Massachusetts today to protect the rights of passengers in cars that law enforcement are tracking with GPS surveillance technology, arguing that both the driver and the passenger of a car have legal standing to challenge the collection of sensitive location data gathered by the GPS devices.

In Commonwealth v. Rousseau, police obtained a search warrant to install a GPS device on a car owned by a suspect in a number of arsons throughout the state. Ultimately, the owner of the car and his frequent passenger – Rousseau – were charged with a number of crimes, but both moved to challenge the search warrant. They argued that the police had made material misrepresentations in obtaining the search warrant, and as a result the GPS evidence should be excluded from the trial.

Although the trial court agreed that police had misrepresented the facts in order to get the search warrant, it upheld it anyway. Additionally, the court found that Rousseau had no legal ability – or standing – to challenge the GPS evidence because he was merely a passenger. But in an amicus brief filed today, EFF argues that critical privacy questions affect everyone who is traveling in a tracked vehicle, and they should all have the opportunity to protect themselves and their location data, whether they are a driver or passenger in the car.

"Location data communicates a huge amount of personal information to law enforcement," said EFF Staff Attorney Hanni Fakhoury. "Where you go throughout the day could point to your religious affiliation, who your family and friends are, your medical conditions, and your political leanings. It's only fair that everyone who is caught up in this extraordinarily invasive surveillance has the right to contest its gathering and use, particularly when that evidence is used by the state to try and throw someone into jail for decades."

Police are increasingly employing persistent locational tracking – through GPS, cell phone records, or other, more aggressive tools like cell tower dumps and "stingrays" – as part of routine criminal investigations. As this kind of evidence-gathering becomes more widespread, it's important to ensure that individuals who are targets of the data-collection dragnet have the legal right to challenge whether the surveillance has been done properly.

"The idea that you lose your right to challenge the use of invasive technology designed to track your location simply because you were in the passenger seat of a car rather than the driver's seat is ludicrous," said Fakhoury. "Giving police this sort of windfall based solely on which car seat a person is in ignores the reality that everyone has an expectation of privacy in their movements, and it only encourages police to aggressively gather a digital dossier of someone's movements. Proper court oversight is necessary to protect the Fourth Amendment, and that's all we're asking for here."

Thanks to Kit Walsh at the Cyberlaw Clinic at Harvard Law School's Berkman Center for Internet and Society for assistance with writing and filing the brief.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-15

Related Issues:
January 18, 2013

AP Argues for Dangerously Narrow View of Fair Use in Battle Over News-Tracking Service

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge today to protect fair use of news coverage and reject the Associated Press' (AP's) dangerously narrow view of what is "transformative" in a copyright court battle over a news-tracking service.

In Associated Press v. Meltwater, AP claims its copyrights are infringed when Meltwater, an electronic news clipping service, includes excerpts of AP stories in search results for its clients seeking reports of news coverage based on particular keywords. In its argument, AP asks the court to accept an extraordinarily narrow view of fair use – the doctrine that allows for the use of copyrighted material for purposes of commentary, criticism, or other transformative uses – by claiming that Meltwater's use of copyrighted excerpts cannot be "transformative" fair use unless they are also "expressive." In an amicus brief filed today, EFF argues that AP's theory would restrict the use and development of services that allow users to find, organize, and share public information.

"There are lots of examples of important fair uses that wouldn't fit under AP's cramped definition of a 'transformative' use," said EFF Senior Staff Attorney Kurt Opsahl. "Time-shifting – like what you do when you record something on your DVR to watch later – isn't 'expressive,' but courts have found it a clear fair use. Because fair use plays such an essential role in facilitating online innovation and expression, we're asking the court to follow the law and reject this flawed theory from AP."

The Stanford Fair Use Project served as counsel for EFF in filing today's brief, which was also joined by Public Knowledge.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-14

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

December 19, 2012

New Funds Dedicated to Protecting Innovation and Reforming Software Patents

San Francisco - America's broken patent system needs major reform to protect innovators and the public. Today, the Electronic Frontier Foundation (EFF) is announcing a major new boost to its patent work: a half-million dollars in funding from entrepreneur Mark Cuban and game developer Markus "Notch" Persson.

"The current state of patents and patent litigation in this country is shameful," said Cuban, owner of the Dallas Mavericks. "Silly patent lawsuits force prices to go up while competition and innovation suffer. That's bad for consumers and bad for business. It's time to fix our broken system, and EFF can help. So that's why part of my donation funds a new title for EFF Staff Attorney Julie Samuels: 'The Mark Cuban Chair to Eliminate Stupid Patents'."

Cuban's $250,000 donation also funds the hire of a new attorney experienced in patent reform and high profile patent litigation: Daniel Nazer, who will join EFF in January as a Staff Attorney. The rest of EFF's seasoned intellectual property team includes Intellectual Property Director Corynne McSherry, Senior Staff Attorney Kurt Opsahl, and Staff Attorney Mitch Stoltz. The team is also assisted by EFF fellows Michael Barclay and Jason Schultz.

Persson's separate donation of $250,000 cements EFF's ability to tackle the systemic problems with software patents. With a blend of lawyers, technologists, and activists, EFF will push for reform in the courts, through activism campaigns, and by educating the public and politicians about what is wrong with software patents and what needs to change.

"Temporary fixes aren't good enough – we need deep and meaningful reform to protect software development and keep it as free and democratic as possible," said Persson, creator of the popular videogame Minecraft. "New games and other technological tools come from improving on old things and making them better – an iterative process that the current patent environment could shut down entirely. This is a dangerous path we're on, and I'm glad to help EFF move us in the right direction."

EFF's Defend Innovation project is already at the forefront of patent reform. Defend Innovation promotes seven fixes for America's patent system, including shortening the term for software patents, allowing winning parties in litigation to recover fees and costs, and protecting inventors who independently arrive at a patented idea. Defend Innovation joins EFF's other longstanding work in the patent space, such as its Patent Busting Project and its involvement in patent litigation.

"Patent controversies dominated technology news this year, and now more than ever, it's clear that something needs to change," said EFF Executive Director Shari Steele. "We are so honored that these two inventors came to us separately with their contributions and their confidence, and we're excited about fixing software patents."

For EFF's Defend Innovation project:
https://defendinnovation.org/

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Related Issues:
December 7, 2012

Federal Circuit Revisiting Troubling Ruling That Helps Foster Increased Patent Litigation

San Francisco - The Electronic Frontier Foundation (EFF) urged the full Federal Circuit today to throw out the dangerous patents it previously held valid in CLS Bank v. Alice Corp, arguing that the court's earlier decision goes against the law and helps foster the recent dramatic increase in patent litigation. In the amicus brief filed today, EFF proposes that the court require patent owners to claim what they actually invent and nothing more.

"The Patent Act doesn't protect abstract ideas because it would lead to harmful monopolies on simple ideas, like ways of running a business or cooking a meal," said Staff Attorney Julie Samuels. "Yet we're still routinely seeing patents issued based on abstract ideas, and having those patents upheld in some courts. In an environment like this, it should be no surprise that company after company decides to buy a lottery ticket in the guise of a dubious software patent and see if it can hit the jackpot. The Federal Circuit has a chance to help curb this new rash of patent lawsuits."

The patents in CLS Bank cover a computer system that helps with closing financial transactions by avoiding settlement risk. A lower court found this invention so abstract to be unpatentable. But this spring, the Federal Circuit disagreed on appeal, finding that implementation of the invention on a computer system made it non-abstract. The Federal Circuit finding goes against a Supreme Court ruling that adding conventional steps – like implementing something on a computer – does not alone make an abstract idea patentable.

"Patent lawsuits are very common, straining businesses large and small, and acting as a tax on innovation," said EFF Fellow Michael Barclay. "These lawsuits are fueled by dangerous and contradictory rulings from the Federal Circuit on what constitutes a patentable invention. We're asking the court to implement a sensible system, limiting patent owners to what they actually invented, instead of all-too-common broad and vague claims that make no sense and give no guidance to innovators."

Public Knowledge joined EFF in this amicus brief.

For the full brief in CLS Bank v. Alice Corp:
https://www.eff.org/node/72780

Contacts:

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

Michael Barclay
   Fellow
   Electronic Frontier Foundation
   michael@eff.org

Related Issues:
December 6, 2012

Statute Threatened Operation of Online Libraries and Other Services

San Francisco - Today, Washington state officials announced that they have dropped their defense of a law aimed at combatting online sex trafficking ads by targeting Internet service providers, conceding that the statute was unconstitutional and violated federal law. After a challenge by the Internet Archive and Backpage.com, a permanent injunction barring enforcement of the law will officially go into effect when the federal district court approves the stipulations and proposed orders filed today.

The Electronic Frontier Foundation (EFF) and co-counsel Venkat Balasubramani represented the Internet Archive in the federal lawsuit that struck down SB 6251, a law passed by the Washington legislature in 2012 despite its obvious potential to curtail legitimate speech. For example, the vague and overbroad statute threatened to impose felony liability not only on those directly engaged in illegal acts but also on those who "indirectly" caused to be "disseminated" any "implicit" offers for commercial sex acts. That could potentially affect services that merely provide access to information, like web hosts, ISPs, or online libraries, impeding their ability to operate. Moreover, the statute directly conflicted with Section 230 of the Communications Decency Act (CDA 230), a federal law that bars states from holding online service providers responsible for the acts of their users.

"Threatening to throw service providers in jail for what their users say or do is misguided, incredibly harmful to online free expression generally, and violates federal law," said EFF Senior Staff Attorney Matt Zimmerman. "We are grateful that the state of Washington has agreed that this statute cannot and will not be enforced against the Internet Archive or anyone else."

The Internet Archive and Backpage.com first filed separate challenges to SB 6251 in June, seeking to block both the state attorney general and county prosecutors from enforcing the statute. In July, federal district court judge Ricardo Martinez granted a preliminary injunction, agreeing that the statute likely violated the First, Fifth, and Fourteenth Amendments as well as conflicted with CDA 230. When approved, today's stipulations and orders will convert the preliminary injunction into a permanent one, rendering the statute unenforceable against anyone.

"The protection offered by CDA 230 has allowed YouTube to host user-uploaded videos, Craigslist to host classified ads, Facebook and Twitter to offer social networking, and the Internet Archive to offer billions of archived webpages documenting the evolution of the Internet," said EFF Staff Attorney Nate Cardozo. "While everyone involved in this case agrees with the goal of SB 6251, overbroad laws that create potential liability for general purpose Internet service providers and forums is not the right way to hold sex traffickers accountable."

For the full settlement order:
https://www.eff.org/node/72784

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

For more on CDA 230:
https://www.eff.org/issues/cda230/

Contacts:

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

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

November 7, 2012

Civil Liberties Groups Urge Judge to Block Unconstitutional Internet Provisions in New Law

San Francisco - Today the ACLU of Northern California (ACLU-NC) and the Electronic Frontier Foundation (EFF) filed a federal class-action lawsuit to block implementation of unconstitutional provisions of Proposition 35 – a ballot measure passed by California voters Tuesday that restricts the legal and constitutionally protected speech of all registered sex offenders in California.

Proposition 35 requires anyone who is a registered sex offender – even people with decades-old, low-level offenses like misdemeanor indecent exposure and people whose offenses were not related to the Internet – to turn over a list of all their Internet identifiers and service providers to law enforcement. While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments. Under the law, more than 73,000 Californians must immediately provide this information to law enforcement, and must report any new account or screen name within 24 hours of setting it up, even if the new screen name is their own real name. Violations can result in years in prison.

Proposition 35's online speech regulations are overly broad and violate the First Amendment, both because they prohibit anonymous speech and because the reporting requirements burden all sorts of online speech, even when the speaker is using his own real name as a screen name.

"The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us," said Michael Risher, staff attorney at the ACLU-NC. "Stopping human trafficking is a worthy goal, but this portion of Prop 35 won't get us there."

The suit was filed Wednesday in U.S. District Court for the Northern District of California on behalf of two individuals required to register as sex offenders and a non-profit organization, California Reform Sex Offender Laws – a group that believes that no sexual abuse is ever acceptable and that laws that paint all sex offenders with one broad brush are counter-productive. The California Reform website allows people to comment on posts and they regularly do so, generally under pseudonyms.

"Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics," said EFF Staff Attorney Hanni Fakhoury. "When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets."

Even before Tuesday's vote, California's sex offender statute was already very broad, with a lifetime registration requirement for even low-level convictions like nude erotic dancing on stage at a bar. The state has the tools to determine who presents a risk to public safety and who doesn't – but this statute applies to everybody, no matter what the risk.

"We're asking the judge today to block the illegal provisions of Prop 35," said Risher.

For the full complaint:
https://www.eff.org/document/complaint-24

Contacts:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Rebecca Farmer
   Media Relations Director
   ACLU of Northern California
   rfarmer@aclunc.org

October 31, 2012

Government Shares Drones with Law Enforcement Agencies Across the Country

San Francisco - The Electronic Frontier Foundation (EFF) filed suit against the Department of Homeland Security (DHS) Tuesday, demanding answers about how and why it loans out its Predator drones to other law enforcement agencies across the country.

Customs and Border Protection (CBP) – a division of DHS – uses the unmanned drones inside the U.S. to patrol the borders with surveillance equipment like video cameras, infrared cameras, heat sensors, and radar. But recent news articles as well as a report from DHS itself show CBP is expanding its surveillance work, flying Predator drone missions on behalf of a diverse group of local, state, and federal law enforcement agencies – including a county sheriff's department in North Dakota, the Texas Rangers, the Bureau of Land Management, and the Department of Defense.

EFF filed a Freedom of Information Act (FOIA) request asking for more information about these drone flights, but DHS has yet to respond to the request. EFF's lawsuit asks for an immediate response, including records and logs of CBP drone flights conducted in conjunction with other agencies.

"We've seen bits and pieces of information on CBP's Predator drones, but Americans deserve the full story," said EFF Staff Attorney Jennifer Lynch. "Drones are a powerful surveillance tool that can be used to gather extensive data about you and your activities. The public needs to know more about how and why these Predator drones are being used to watch U.S. citizens."

Also on Tuesday, EFF filed a second FOIA lawsuit with the Federal Aviation Administration (FAA), demanding the latest data on certifications and authorizations the agency has issued for public drone flights in the U.S. After EFF filed its first lawsuit in January, the FAA agreed to turn over similar data, and that process is still ongoing. But the agency's slow response has meant that much of the information is outdated long before EFF receives it, and without a new request, records from most of 2012 would not be included.

"FAA's foot-dragging means we can't get a real-time picture of drone activity in the U.S.," said Lynch. "If officials could release their records in a timely fashion – or publish it as a matter of routine on the FAA website – we could stop filing these FOIA requests and lawsuits."

For the full FOIA lawsuits:
https://www.eff.org/node/72156
https://www.eff.org/node/72155

For more about drones and privacy:
https://www.eff.org/foia/faa-drone-authorizations

Contacts:

Jennifer Lynch
   Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

October 30, 2012

Join the New Open Wireless Movement

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of nine other groups launched the Open Wireless Movement today – a new project to promote a landscape of shared, wireless Internet.

"We envision a world where sharing one's Internet connection is the norm," said EFF Activist Adi Kamdar. "A world of open wireless would encourage privacy, promote innovation, and benefit the public good, giving us network access whenever we need it. And everyone – users, businesses, developers, and Internet service providers – can get involved to help make it happen."

The Open Wireless Movement site at openwireless.org gives users of all kinds technological and legal information around opening up a wireless network, including how-to guides and responses to common myths. The site includes specialized information for households, small businesses, developers, and Internet Service Providers. The Open Wireless Movement coalition is also working to develop router technology making it easier for people open their networks without losing quality of Internet access or compromising security.

"The frustrating thing about wireless networks today is that they're everywhere – there can be dozens of them bouncing around you at any given instant – but you're locked out of almost all of them," said EFF Technology Projects Director Peter Eckersley. "We realized that the Internet would work much better, and many amazing new kinds of devices would be possible, if just a small fraction of them could be opened. So we started a movement to make that happen"

The Open Wireless Coalition consists of the Electronic Frontier Foundation, Fight for the Future, Free Press, Internet Archive, NYCwireless, the Open Garden Foundation, OpenITP, the Open Spectrum Alliance, the Open Technology Institute, and the Personal Telco Project.

For more on the Open Wireless Movement:
https://www.openwireless.org

Contacts:

Peter Eckersley
   Technology Projects Director
   Electronic Frontier Foundation
   pde@eff.org

Adi Kamdar
   Activist
   Electronic Frontier Foundation
   adi@eff.org

Related Issues:
October 29, 2012

EFF Backs New York-Based Aereo TV in Battle to Stay in Business

New York - The Electronic Frontier Foundation (EFF) urged a federal appeals court Friday not to shut down Aereo, a startup that lets customers send local broadcast television to Internet-connected devices, arguing that consumers have the right to watch free broadcast TV with the technology of their choice.

Broadcasters and TV networks – including ABC, Fox, Univision, Disney, CBS, NBC, and PBS – sued Aereo for copyright infringement in March, claiming that Aereo should be paying them license fees. The trial court declined to shut Aereo down during the lawsuit, and the broadcasters appealed. Now, the appeals court will decide whether Aereo can stay open while the case goes forward. EFF, along with Public Knowledge and the Consumer Electronics Association (CEA), filed a friend of the court brief Friday, asking the appeals court to reject the networks' bogus copyright claims and protect the rights of consumers.

"Just because Aereo's system sends TV signals to customers doesn't mean that Aereo needs permission from the broadcasters," said EFF Staff Attorney Mitch Stoltz. "Personal TV transmissions don't violate copyright – it's a private use that copyright law doesn't reach. This is just a craven attempt by TV executives to profit from technology that they didn't think of first."

Aereo's system works with thousands of dime-sized antennas installed on a Brooklyn rooftop. Each customer is assigned a single antenna that he or she can control, and the signal from that antenna travels over the Internet to the customer's devices. Aereo has explained in court that it simply takes the place of "rabbit ears" or a rooftop antenna, but the networks argued that Aereo should be treated like a cable system that must get permission from and pay fees to broadcasters.

In deciding not to shut Aereo down pending trial, Judge Alison Nathan of the Southern District of New York said that Aereo's system was similar to another technology that survived a court challenge: Cablevision's "remote DVR" system, which in 2008 was found not to infringe copyright law. Like Aereo, Cablevision took equipment that customers traditionally put in their homes – in that case, digital video recorders – and moved them to the company's offices. Judge Nathan ruled that the appeals court's decision in the Cablevision case also applied to Aereo.

"Broadcasters have exclusive use of a scarce public resource – the airwaves – and that privilege carries with it a responsibility to serve the public. Obviously, the public benefits by having alternative ways to enjoy TV content," said EFF Intellectual Property Director Corynne McSherry. "Judge Nathan reached the right result and we hope the appeals court does too."

EFF co-wrote its brief with John Bergmayer and Sherwin Siy of Public Knowledge.

For the full amicus brief in WNET v. Aereo:
https://www.eff.org/document/appeals-court-amici-curiae-brief-eff-pk-and-cea

Contacts:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

October 26, 2012

Copyright Office Announces Exemptions to Mitigate DMCA Harms

San Francisco - The Electronic Frontier Foundation (EFF) won renewal of critical exemptions to the Digital Millennium Copyright Act (DMCA) in a ruling published today, including the upholding of jailbreaking rights for smartphones as well as new and expanded legal protections for video remixing.

"The DMCA creates a cloud of legal uncertainty over American consumers – whether they are tinkerers, artists, or just looking to make their gadgets work better," said EFF Intellectual Property Director Corynne McSherry. "The ruling from the Copyright Office today goes a long way towards mitigating some of the DMCA's most grievous harms."

Crucial support for the successful request on behalf of video remix artists – carving out new legal protection for this important art form – was provided by the Organization for Transformative Works (OTW). The OTW gathered evidence and presented testimony about the DMCA's adverse impact on several communities of remix creators, who use short clips from movies to build new creative works. The Copyright Office's decision broadens EFF's previously successful exemption request, which allows for taking short excerpts from DVDs in creating noncommercial works, by also protecting the use of clips from online streaming or downloading services.

"Remix videos are thriving on YouTube and other sites, offering dynamic criticism and commentary on popular movies as well as popular culture. It's a great example of how new technologies foster free expression, yet the anti-circumvention provisions of the DMCA endanger these important works," said McSherry. "We're thrilled that the Copyright Office broke new ground in protecting remix artists. We can't let misguided federal law block a new form of art and expression."

The Copyright Office also renewed EFF's exemption request that protects smartphone jailbreaking, liberating phone owners to run operating systems and applications from any source, not just those approved by the manufacturer. However, the Copyright Office declined to expand that exemption to tablets and video game consoles, arguing that the category of "tablets" is not well defined and that jailbreaking video game consoles might lead to more copyright infringement.

"If you bought your gadget, you own it, and you should be able to install whatever software you please without facing potential legal threats," said EFF Senior Staff Attorney Marcia Hofmann. "We're pleased the Copyright Office renewed our smartphone jailbreaking exemption request, but we're disappointed that it couldn't see that consumers deserve the same rights for all the gadgets they own. We'll be back with more exemption requests in the next rulemaking, and we're hopeful the Copyright Office will keep moving in the right direction."

The Copyright Office's rulemaking process is conducted every three years in order to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works. While the DMCA still chills competition, free speech, and fair use, today's exemptions help give consumers and artists protection from the law's extensive reach.

EFF would like to acknowledge the invaluable assistance of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, in drafting the jailbreaking exemption requests.

For the full ruling from the copyright office:
https://www.eff.org/node/72131

For more on our exemption requests:
https://www.eff.org/cases/2012-dmca-rulemaking

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

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

October 23, 2012

Warrant Materials Sought to Help Innocent Party Regain His Property

Alexandria, VA - The Electronic Frontier Foundation (EFF), on behalf of its client Kyle Goodwin, asked a federal court yesterday to unseal warrant-related documents surrounding the loss of access to Mr. Goodwin's data after the government shut down Megaupload.com. Goodwin used Megaupload's cloud-based storage system for his small business reporting on high school sporting events in Ohio. The site's servers housing Mr. Goodwin's data were frozen as part of a government seizure in January of this year—since then, Mr. Goodwin and others like him have had no access to their data.

Mr. Goodwin has consistently asked the court for the return of his property. In response, the court recently asked Mr. Goodwin and the government to provide additional information on how such a hearing might proceed.

"The government engaged in a overbroad seizure, denying Mr. Goodwin access to his data, along with likely millions of others who have never been accused of wrongdoing," said Julie Samuels, EFF Staff Attorney. "Access to the government's warrant application and related materials can help us learn how this could have happened and provide assistance in our efforts to get Mr. Goodwin his property back."

In running his small business, Goodwin stored video footage on Megaupload servers as a backup to his hard drive and so he could share those large files with his producers all over Ohio. Earlier this year, the FBI shut down Megaupload.com and executed search warrants on the company's servers, locking out all Megaupload customers in the process. When Goodwin's hard drive crashed, he could not get access to any of his own video files, which he needed to conduct his business.

"Unsealing the court documents in this case is not only important to Mr. Goodwin, it is critical to the ongoing public and Congressional debate about the U.S. government's increasing use of its seizure power in intellectual property cases," added Cindy Cohn, EFF's Legal Director. "A court in New Zealand recently upbraided the authorities who conducted similar seizures for failing to protect innocent people whose property was obviously likely to be swept up. The questions raised by the New Zealand court about overbroad seizures should also be asked, and answered, here in the U.S."

EFF was assisted by co-counsel Abraham Sofaer of the Hoover Institution and John Davis of Williams Mullen.

For the full motion to unseal:
https://www.eff.org/document/motion-unseal

For more on the Megaupload Data Seizures:
https://www.eff.org/cases/megaupload-data-seizure

Contacts:

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

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

Related Issues:
October 22, 2012

Oil Giant Demands Years of Private Email Account Information from Activists, Journalists, and Attorneys

San Francisco - The Electronic Frontier Foundation (EFF) and EarthRights International (ERI) asked judges in California and New York today to quash subpoenas issued by Chevron Corporation to three email providers demanding identifying information about the users of more than 100 email accounts, including environmental activists, journalists, and attorneys. The information Chevron wants could be used to create a detailed map of the individuals' locations and associations over nearly a decade.

The subpoenas are the latest salvo in the long-running battle over damage caused by oil drilling in Ecuador. After years of litigation, an Ecuadorian court last year imposed a judgment of over $17 billion on Chevron for dumping toxic waste into Amazon waterways and causing massive harm to the rainforest. Instead of paying, Chevron sued more than 50 people who were involved in the Ecuador lawsuit, claiming they were part of a conspiracy to defraud the oil giant. None of the individuals represented by EFF and ERI has been sued by Chevron or accused of wrongdoing.

"Environmental advocates have the right to speak anonymously and travel without their every move and association being exposed to Chevron," said Marcia Hofmann, EFF Senior Staff Attorney. "These sweeping subpoenas create a chilling effect among those who have spoken out against the oil giant's activities in Ecuador."

The motions to quash filed today asked the courts to reject the subpoenas, pointing out that anonymous speakers who are not parties in a lawsuit receive particularly strong First Amendment protections. EFF first won court recognition of this protection in Doe v. 2theMart.com in 2001. Chevron's subpoenas also violate the legal protections for the right of association for political action that were developed during the civil rights era.

"The courts have long recognized that forcing activists to reveal their names and political associations will chill First Amendment rights and can only be done in the most extreme situations," added Marco Simons, Legal Director of ERI, which has provided legal assistance to third parties affected by the Chevron litigation in two international proceedings. "We look forward to having those longstanding principles applied in this case so that people can engage in journalism and political activism and assist in litigation against environmental destruction without fear that their identities and personal email information will be put at risk."

EFF and ERI are challenging the subpoenas to Google and Yahoo! in the U.S. District Court for the Northern District of California and the subpoena to Microsoft in the U.S. District Court for the Northern District of New York. Peter Henner is local counsel working with EFF and ERI in New York.

For the motion to quash in the Northern District of California: https://www.eff.org/document/nd-cal-motion-quash

For the motion to quash in the Northern District of New York: https://www.eff.org/document/ndny-motion-quash

For more information about the case and supporting documents: https://www.eff.org/cases/chevron-v-donziger

Contacts:

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

About EFF:

The Electronic Frontier Foundation is the leading organization protecting civil liberties in the digital world. Founded in 1990, we defend free speech online, fight illegal surveillance, promote the rights of digital innovators, and work to ensure that the rights and freedoms we enjoy are enhanced, rather than eroded, as our use of technology grows. EFF is a member-supported organization. Find out more at https://www.eff.org.

About ERI:

EarthRights International is a nonprofit, nongovernmental organization that uses legal and advocacy tools to defend human rights and the environment. We specialize in fact-finding, legal actions against perpetrators of abuses, training for grassroots and community leaders, and advocacy campaigns that seek to end environmental and human rights abuses. To learn more, including ERI’s involvement in other aspects of the Chevron litigation, please visit: http://www.earthrights.org.

Related Issues:
October 11, 2012

Home Movie of Toddler Dancing to Prince Song Sparked Bogus Copyright Claim

San Jose, CA - On Tuesday, October 16, at 3 p.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose, California to rule that Universal Music Corp. violated the law when it sent YouTube a takedown demand over a home movie of a toddler dancing to a Prince song.

Tuesday's oral argument is in Lenz v. Universal, a case that started back in 2007, when Stephanie Lenz first posted the video to share with family and friends. In the 29-second clip, Lenz's young son is dancing in the family kitchen to "Let's Go Crazy," which is playing on a stereo in the background. Remarkably, Universal Music Publishing Group claimed that the video violated copyright law, and had the video yanked from YouTube.

Lenz fought back with the help of EFF, filing a lawsuit asking the court to hold Universal accountable for YouTube to take down her fair use. In a key victory early in the case, the court held that content owners must consider fair use before sending copyright takedown notices.

In Tuesday's hearing, EFF Intellectual Property Director Corynne McSherry will ask the court to grant Lenz's motion for summary judgment in this case and rule that Universal's takedown was improper and an abuse of the Digital Millennium Copyright Act (DMCA).

"Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music," said McSherry. "Content companies need to be held accountable when their heavy-handed tactics squash fair use rights. We hope the judge gives Ms. Lenz the closure she deserves, and shows content owners they can't trample over users' rights."

WHAT:
Lenz v. Universal

WHEN:
Tuesday, October 16
3 p.m.

WHERE:
United States District Court, Northern District of California
Courtroom 3, 5th Floor
280 South 1st Street
San Jose, CA 95113

For the full background on Lenz v. Universal, including the most recent motions:
https://www.eff.org/cases/lenz-v-universal

Contact:

Adi Kamdar
   Activist
   Electronic Frontier Foundation
   adi@eff.org

September 28, 2012

Government Wants to Collect Months of Location Data Without a Warrant

New Orleans - The Electronic Frontier Foundation (EFF) will urge a federal appeals court Tuesday to recognize cell phone users' privacy rights and require that the government obtain a warrant before collecting cell phone location information. The oral argument is set for 9 a.m. on October 2nd in New Orleans.

At issue in Tuesday's hearing are government requests for judicial orders authorizing the disclosure of 60 days of location data from two separate cell phone companies as part of a routine law enforcement investigation. A magistrate judge denied the request, saying the government needed to apply for a search warrant supported by probable cause to obtain the information. The district court judge agreed with the magistrate's finding, and the government appealed the decision to the U.S. Court of Appeals for the 5th Circuit.

In this case – and in many others across the U.S. – the government claims that cell phone users give up their privacy rights because they have voluntarily disclosed their physical location to the cell phone providers every time a phone connects to the provider's cell tower. Government attorneys argue this means investigators do not need a warrant to get access to location history. However, this theory undermines privacy in nearly any networked communication. At Tuesday's hearing, EFF Staff Attorney Hanni Fakhoury will argue that obtaining a warrant for cell location data is essential to ensuring Fourth Amendment protections.

Tuesday's hearing comes just weeks after the U.S. Court of Appeals for the 6th Circuit allowed the government access to cell phone location records without a warrant. That conflicts with a 2010 decision from the U.S. Court of Appeals for the 3rd Circuit, which ruled that a court could require the government to obtain a search warrant to access location information. The case being argued Tuesday is just the third case to reach the federal appellate courts on this issue, and the conflicting circuit court decisions could encourage Supreme Court attention.

WHAT:
Oral argument In Re: Application for Historical Cell Site Data

WHEN:
Tuesday, October 2
9 a.m.

WHERE:
John Minor Wisdom United States Court of Appeals Building
Room 265
600 Camp Street
New Orleans, LA 70130

Contacts:

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

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Related Issues:
September 14, 2012

Patent Troll Files Flurry of Lawsuits Over Widely Used Transit-Arrival Systems

San Francisco - The Electronic Frontier Foundation (EFF) is challenging a dangerous patent used to wrongfully demand payment from cities and other municipalities that employ public tracking systems to tell transit passengers if their bus or train is on time.

Today, EFF with the help of the Samuelson Law, Technology, and Public Policy Clinic at Berkeley Law, filed a request with the United States Patent and Trademark Office (USPTO), urging reexamination of the legitimacy of the ArrivalStar patent – used as a basis for dozens of recent lawsuits against entities like the state of California, the city of Cleveland, and the Illinois Commuter Rail.

ArrivalStar claims its patents are based on an invention from 1999 and argues that many widely used transit-tracking systems – as well as some package-tracking services used by delivery and shipping companies – are infringing. But in the reexamination request filed today, EFF and the Samuelson Clinic show that as far back as 1992, public technical reports described a "Smart Bus system" that used the same methods as those included in the ArrivalStar patent.

"ArrivalStar apparently believes that the broad language of their patents could potentially cover any system that tracks a vehicle or a package and notifies a customer of the status. Even if you could patent something that broad and vague – and we think you can't – you certainly can't patent something that was invented by other people years before," said EFF Staff Attorney Julie Samuels. "Yet because of this particularly baseless patent, municipalities across the country are being forced to choose whether they will fight an expensive lawsuit, pay ArrivalStar's settlement demands, or abandon a public service. This is not how the patent system is supposed to work."

Because of the deep and systemic problems in the American patent system, EFF has launched the Defend Innovation project to advocate for reform. EFF is asking the public to sign on to our petition at defendinnovation.org and to comment on seven recommended proposals we think would make the broken system work better for software.

"The patent office issues bad software patents every day, and those patents are hurting American businesses and consumers and hindering innovation," said Samuels. "It's time to create a blueprint for reform."

For the full reexamination request:
https://www.eff.org/document/reexamination-request-arrivalstar-patent

For EFF's Defend Innovation project:
https://defendinnovation.org/

Contact:

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

Related Issues:
August 30, 2012

Government Withholding Information About Unconstitutional Spying at NSA

Washington, D.C. - The Electronic Frontier Foundation (EFF) sued the Department of Justice (DOJ) today, demanding answers about illegal email and telephone call surveillance at the National Security Agency (NSA).

The FISA Amendments Act (FAA) of 2008 gave the NSA expansive power to spy on Americans' international email and telephone calls. However, last month, in a letter to Senator Ron Wyden, a government official publicly disclosed that the NSA's surveillance had gone even further than what the law permits, with the Foreign Intelligence Surveillance Court (FISC) issuing at least one ruling calling the NSA's actions unconstitutional. The government further disclosed that the FISC had determined the government's surveillance violated the spirit of the law on at least one occasion, as well. EFF's Freedom of Information Act (FOIA) lawsuit seeks disclosure of any written opinions or orders from FISC discussing illegal government surveillance, as well as any briefings to Congress about those violations.

"For years we've seen news reports in the New York Times and other outlets about widespread government spying going beyond the broad powers granted in the FAA, but we've yet to get any real answers about what is going on," said EFF Open Government Legal Fellow Mark Rumold. "When law-breaking is allowed to remain secret, there's no accountability or way to monitor future abuses. It's time for the government to come clean and tell us about the NSA's unconstitutional actions."

The surveillance provisions in the FAA will sunset at the end of this year unless Congress reauthorizes the law. The pending congressional debate on reauthorization makes it all the more critical that the government release this information on the NSA's actions.

"As Congress gears up to reconsider the FAA, the American public needs to know how the law has been misused," said EFF Senior Counsel David Sobel. "The DOJ should follow the law and release this information to the American public."

EFF represents the plaintiffs in Jewel v. NSA, a class-action lawsuit challenging the underlying legality and constitutionality of the government's warrantless surveillance program. That case is currently being briefed in federal court in San Francisco.

For the full complaint:
https://www.eff.org/document/complaint-19

Contacts:

Mark Rumold
   Open Government Legal Fellow
   Electronic Frontier Foundation
   mark@eff.org

David Sobel
   Senior Counsel
   Electronic Frontier Foundation
   sobel@eff.org

Related Issues:
August 27, 2012

EFF to Honor Andrew (bunnie) Huang, Jérémie Zimmermann, and the Tor Project at San Francisco Ceremony

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the distinguished winners of its 2012 Pioneer Awards: hardware hacker Andrew (bunnie) Huang, anti-ACTA activist Jérémie Zimmermann, and the Tor Project – the organization behind the groundbreaking anonymity tool Tor.

The award ceremony will be held the evening of September 20 at Project One Gallery in San Francisco. The founding developer of WordPress, Matt Mullenweg, will be the keynote speaker.

Andrew (bunnie) Huang is an activist who takes a push-and-pull approach to open hardware: he contributes original open designs and also liberates closed designs. Huang's book on reverse engineering, "Hacking the Xbox," is a widely respected tool for hardware hackers. Huang has also released an open implementation of a man-in-the-middle attack on HDCP – enabling overlays on encrypted video without circumventing access controls. As part of his long-term advocacy for users' rights, Huang worked with EFF to help encourage more than 25,000 people to ask the Copyright Office for the right to install the software of their choice on their smartphones, tablets, and video game consoles. Huang serves as a Research Affiliate for the MIT Media Lab and a technical advisor for several hardware startups and MAKE magazine, and he shares his experiences manufacturing hardware in China through his blog.

Jérémie Zimmermann is the co-founder of La Quadrature du Net, an influential French advocacy group defending the rights and freedoms of citizens on the Internet. Zimmermann has been instrumental in the fight against the Anti-Counterfeiting Trade Agreement (ACTA), a far-reaching international treaty that would curtail many Internet freedoms in favor of extremist intellectual property protectionism. Zimmermann has worked tirelessly to spread the word about ACTA and the ways in which it would put a chokehold on Internet and digital rights. This July, after years of secretive negotiations, ACTA was defeated in the European Parliament. Zimmermann has also worked on numerous other technology policy topics, including freedom of expression, copyright, regulation of telecommunications, and online privacy.

The Tor Project is a group of software developers and other advocates who maintain Tor, free software that helps Internet users circumvent Internet censorship and protect their anonymity. Tor enables activists, journalists, and others to keep websites from tracking them and to connect to uncensored news sites and services. Tor's hidden services let users publish web sites and do other online work without needing to reveal their locations. Tor also enables software developers to create new communication tools with built-in privacy features. Ongoing global trends in law, policy, and technology threaten anonymity as never before and undermine our ability to speak and read freely online, but the groundbreaking work from the Tor Project helps users everywhere improve the safety of their online communications.

"Every year, our Pioneer Awards celebrate those who have made a difference for digital freedom. We are extraordinarily proud of this year's winners and their unflagging dedication to protecting the rights of technology users around the world," said EFF Executive Director Shari Steele. "Whether it's your right to reverse engineer a game console, or to avoid the interference of overbroad IP enforcement, or to block websites or governments from tracking your every online move, these winners are working hard to protect our online freedom. We're honored they will be at our annual awards ceremony on September 20."

Tickets to the Pioneer Awards are $75 and can be purchased online at https://www.eff.org/awards/pioneer. Also available are tickets to a special VIP event featuring the Pioneer Award winners and keynoter Matt Mullenweg. In addition to being founding developer of WordPress – the open source blogging software that runs millions of sites around the world – Mullenweg also started Automattic, Akismet, Gravatar, bbPress, IntenseDebate, and BuddyPress.

Awarded every year since 1992, EFF's Pioneer Awards recognize leaders who are extending freedom and innovation on the electronic frontier. Previous honorees include Tim Berners-Lee, Senator Ron Wyden, Limor "Ladyada" Fried, Linus Torvalds, and Tunisian blogging collective Nawaat, among many others. Sponsors of this year's Pioneer Awards include Adobe, JibJab, JunkEmailFilter.com, and Orrick, Herrington & Sutcliffe LLP.

To buy tickets to the Pioneer Awards:
https://www.eff.org/awards/pioneer

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

August 22, 2012

EFF Manual Outlines How Keep Your Content Online in Case of a Denial of Service Attack

San Francisco - Denial of service attacks – flooding websites with traffic in order to make them unavailable to the public – have become an increasingly popular way to take down or block Internet content. A new online guide from the Electronic Frontier Foundation (EFF) outlines how website operators can fend off these attacks and keep their sites alive and accessible.

"Denial of service attacks have been used by governments to silence online criticism as well as by activists protesting companies and organizations they don't like," said EFF Director for International Freedom of Expression Jillian York. "Major websites often have the resources to keep running during a denial of service attack, but smaller sites – such as those belonging to independent media or human rights organizations – are sometimes taken down permanently. Our online guide is aimed at leveling the playing field."

EFF's "Keeping Your Site Alive" guide includes tips on choosing an appropriate webhost to provide the security and technical assistance needed to weather an attack. The guide also gives advice on how to back up and mirror content so it can be made available elsewhere in case the site is compromised, and includes tutorial videos with background information on the technical concepts involved. Denial of service attacks are an issue for websites across the globe, so EFF's guide is available in many different translations, including Chinese, Russian, Persian, and Arabic.

"Lack of resources or knowledge can mean some websites are more vulnerable than others," said EFF International Freedom of Expression Coordinator Eva Galperin. "We want to give website operators around the world the tools they need to protect their content and stay online."

For EFF's guide "Keeping Your Site Alive":
https://www.eff.org/keeping-your-site-alive

Contacts:

Eva Galperin
   International Freedom of Expression Coordinator
   Electronic Frontier Foundation
   eva@eff.org

Jillian York
   Director for International Freedom of Expression
   Electronic Frontier Foundation
   jillian@eff.org

Related Issues:

Pages

Subscribe to EFF Press Releases
JavaScript license information