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EFF Press Release Archives

Press Releases: July 2011

July 29, 2011

EFF Files Amicus Brief to Defend Free Speech on Social Networks

San Francisco - EFF filed a friend-of-the-court brief today urging a federal court to block the government's use of the federal anti-stalking law to prosecute a man for posting criticism of a public figure to Twitter.

At issue is a federal law originally enacted to criminalize traveling across state lines for the purpose of stalking. In 2005, the law was modified to make the "intentional infliction of emotional distress" by the use of "any interactive computer service" a crime. In this case, the government has presented the novel and dangerous theory that the use of a public communication service like Twitter to criticize a well-known individual can result in criminal liability based on the personal sensibilities of the person being criticized.

"Wielding the threat of criminal sanctions to punish the pointed, online criticism of public figures is not only bad policy, it is unconstitutional," said EFF Senior Staff Attorney Matt Zimmerman. "While true threats can and should be opposed, public speech about prominent people must be vigorously protected."

In the brief, EFF argues that an indictment of a Twitter user pursuant to the federal anti-stalking statute violates the First Amendment, not only because the speech is protected, but also because the language of the statute is unconstitutionally vague.

"The idea that the government should police every inflammatory word spoken online chills freedom of speech and goes against decades of First Amendment case law," said EFF Staff Attorney Hanni Fakhoury. "The court must recognize social network users' right to speak freely online, even if that speech is unpopular or offensive to some."

For the full amicus brief in US v. Cassidy:
https://www.eff.org/files/filenode/us_v_cassidy/eff_amicus_cassidy.pdf

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

Contacts:

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

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

Related Issues:
July 27, 2011

EFF Urges Appeals Court to Block Unconstitutional Federal Law

San Francisco - The forced collection of DNA samples from arrestees without search warrants violates their Fourth Amendment right to privacy, the Electronic Frontier Foundation (EFF) told a federal appeals court in an amicus brief filed Monday.

A federal law mandates DNA collection as a condition for bail for people who have been arrested for felonies. The FBI receives the DNA samples, conducts an analysis, and places a profile into CODIS, a national database. Those who are not eventually convicted of a crime must make a request if they want their information removed from the FBI's system, while the data collected without cause from other individuals remains permanently. In its amicus brief filed with the 9th U.S. Circuit Court of Appeals, EFF argues that this collection and storage is unconstitutional, violating the Fourth Amendment prohibition on baseless search and seizure of private information.

"DNA reveals an extraordinary amount of private information about you—your family background, your current health, your future propensity for disease, and possibly even your behavioral tendencies," said EFF Staff Attorney Hanni Fakhoury. "This data is bound to get even more sensitive as technology advances and we learn more about DNA."

The widespread data collection mandated by this unconstitutional law was upheld by a three-judge panel from the 9th Circuit. If the law is not struck down by the en banc court, it could open the door to other expansions of warrantless DNA collection.

"The government is collecting these genetic profiles without warrants and storing them in a database freely accessed by federal and state law enforcement agencies across the country," said EFF Staff Attorney Jennifer Lynch. "We urge the 9th Circuit to reverse the opinion and strike down this sweeping law."

The Center for Constitutional Rights, the National Immigration Project of the National Lawyers Guild, and Generations Ahead joined EFF in Monday's amicus brief.

For the full amicus brief in US v. Pool:
https://www.eff.org/files/filenode/usa_v_pool/eff_pool_amicus.pdf

Contacts:

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

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

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July 8, 2011

EFF Urges Court to Uphold Privilege Against Self-Incrimination

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court in Colorado today to block the government's attempt to force a woman to enter a password into an encrypted laptop, arguing in an amicus brief that it would violate her Fifth Amendment privilege against self-incrimination.

A defendant in this case, Ramona Fricosu, is accused of fraudulent real estate transactions. During the investigation, the government seized an encrypted laptop from the home she shares with her family, and then asked the court to compel Fricosu to type the password into the computer or turn over a decrypted version of her data. But EFF told the court today that the demand is contrary to the Constitution, forcing Fricosu to become a witness against herself.

"Decrypting the data on the laptop can be, in and of itself, a testimonial act -- revealing control over a computer and the files on it," said EFF Senior Staff Attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

The government has offered Fricosu some limited immunity in this case, but has not given adequate guarantees that it won't use the information on the computer against her.

"Our computers now hold years of email with family and friends, Internet browsing histories, financial and medical information, and the ability to access our online services like Facebook. People are right to use passwords and encryption to safeguard this data, and they deserve the law's full protection against the use of it against them," said EFF Staff Attorney Hanni Fakhoury. "This could be a very important case in applying Americans' Fifth Amendment rights in the digital age."

For the full amicus brief:
https://www.eff.org/files/filenode/us_v_fricosu/fricosuamicus7811.pdf

Contacts:

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

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

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