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EFF Press Release Archives

Press Releases: December 2011

December 29, 2011

Justices Find that Spied-On Telephone Customers Have the Right to Sue

San Francisco - The 9th U.S. Circuit Court of Appeals today blocked the government's attempt to bury the Electronic Frontier Foundation's (EFF's) lawsuit against the government's illegal mass surveillance program, returning Jewel v. NSA to the District Court for the next step.

The court found that Jewel had alleged sufficient specifics about the warrantless wiretapping program to proceed. Justices rejected the government's argument that the allegations about the well-known spying program and the evidence of the Folsom Street facility in San Francisco were too speculative.

"Since the dragnet spying program first came to light, we have been fighting for the chance to have a court determine whether it is legal," said EFF Legal Director Cindy Cohn. "Today, the Ninth Circuit has given us that chance, and we look forward to proving the program is an unconstitutional and illegal violation of the rights of millions of ordinary Americans."

Also today, the court upheld the dismissal of EFF's other case aimed at ending the illegal spying, Hepting v. AT&T, which was the first lawsuit against a telecom over its participation in the dragnet domestic wiretapping. The court found that the so-called "retroactive immunity" passed by Congress to stop telecommunications customers from suing the companies is constitutional, in part because the claims remained against the government in Jewel v. NSA.

"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," said EFF Senior Staff Attorney Kurt Opsahl. "It is disappointing that today's decision endorsed the rights of telecommunications companies over those over their customers."

Today's decision comes nearly exactly six years after the first revelations of the warrantless wiretapping program were published in the New York Times on December 16, 2005. EFF will now move forward with the Jewel litigation in the Northern District of California federal court. The government is expected to raise the state secrets privilege as its next line of defense but this argument has already been rejected in other similar cases.

For the full opinion in Jewel:
https://www.eff.org/files/filenode/20111229_9C_Jewel_Opinion.pdf

For the full opinion in Hepting:
https://www.eff.org/files/filenode/20111229_9C_Hepting_Opinion.pdf

Contact:

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

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December 20, 2011

Cartoon Take on 'What What (In the Butt)' Does Not Infringe Copyright

San Francisco - The Electronic Frontier Foundation (EFF) backed Viacom Monday in a lawsuit over a parody of a popular online video called "What What (In the Butt)," arguing that South Park's reimagining of the work is a clear case of fair use and that the district court's early dismissal of the case was correct.

South Park aired the "What What" parody in a 2008 episode critiquing the popularity of absurd online videos. Two years later, copyright owner Brownmark Films sued Viacom and Comedy Central, accusing South Park of infringement. A federal judge dismissed the case, calling it a clear fair use. Brownmark appealed to the 7th U.S Circuit Court of Appeals, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious. In an amicus brief filed Monday, EFF argued that Brownmark is asking for a standard that would chill free speech and encourage frivolous litigation.

"Brownmark is asking the appeals court for a rule that would make it much more difficult to resolve easy fair uses cases quickly. That would discourage artists and others from fighting claims, no matter how baseless, or even engaging in the fair use in the first place," said EFF Fellow Michael Barclay. "The judge in this case got it exactly right: when the fair use is obvious, the case should be decided right away."

Courts in the 9th and the 10th circuits have already decided that it's proper to dismiss some copyright cases during the pleading stages on fair use and other grounds. These rulings are important in fighting back copyright trolls, who depend on the threat of legal costs to encourage people to settle cases even though they might have legitimate defenses.

"Fair use – using some copyrighted material for the purposes of art, education, or commentary – is an important part of how we communicate today. We see it everyday in segments on The Daily Show, in political advertisements, and in 'remix' videos on YouTube," said EFF Staff Attorney Julie Samuels. "We can't let litigious copyright holders chill free speech by making it more expensive."

For the full amicus brief in Brownmark v Comedy Partners:
https://www.eff.org/files/filenode/Brownmark_v_Comedy_Partners_CA7_amicus-brief_as-filed.pdf

Contacts:

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

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

December 20, 2011

EFF's New Guide Helps Travelers Defend Their Data Privacy

San Francisco - Anytime you travel internationally, you risk a broad, invasive search of your laptop, phone, and other digital devices – including the copying of your data and seizing of your property for an indefinite time. To help travelers protect themselves and their private information during the busy holiday travel period, the Electronic Frontier Foundation (EFF) released a new report today with important guidance for safeguarding your personal data at the U.S border.

Thanks to protections enshrined in the U.S. Constitution, the government generally can't snoop through your laptop for no reason. But the federal government claims those privacy protections don't cover travelers at the U.S. border, allowing agents to take an electronic device, search through all the files, and keep it for further scrutiny – without any suspicion of wrongdoing whatsoever. For business travelers, that could expose sensitive information like trade secrets, doctor-patient and attorney-client communications, and research and business strategies. For others, the data at risk includes personal health histories, financial records, and private messages and photos of family and friends. EFF's new report, "Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices," outlines potential ways to protect that private information, including minimizing the data you carry with you and employing encryption.

"Different people need different kinds of precautions for protecting their personal information when they travel," said EFF Senior Staff Technologist Seth Schoen. "Our guide helps you assess your personal risks and concerns, and makes recommendations for various scenarios. If you are traveling over the U.S. border soon, you should read our guide now and get started on taking precautions before your trip."

Over the past few years, Congress has weighed several bills to protect travelers from suspicionless searches at the border, but none has had enough support to become law. You can join EFF in calling on the Department of Homeland Security to publish clear guidelines for what they do with sensitive traveler information collected in digital searches by signing our petition. You can also test your knowledge about travelers' privacy rights and help spread the word about the risks by taking our border privacy quiz.

"We store detailed records of our lives on our laptops and our phones. But the courts have diminished our constitutional right to privacy at the border," said EFF Senior Staff Attorney Marcia Hofmann. "It's time for travelers to take action and protect themselves and their private information during international trips."

For Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices:
https://www.eff.org/wp/defending-privacy-us-border-guide-travelers-carrying-digital-devices

To take the border privacy quiz:
https://www.eff.org/pages/border-search-quiz

To sign the petition
https://action.eff.org/o/9042/p/dia/action/public/?action_KEY=8341

Contacts:

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

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

December 15, 2011

Twitter Criticism of Public Figures Protected by First Amendment

San Francisco - A federal district court judge in Maryland today blocked the government's use of a federal anti-stalking law to prosecute a man for posting insults and criticism of a public figure to Twitter, ruling that "the First Amendment protects speech even when the subject or manner of expression is uncomfortable and challenges conventional religious beliefs, political attitudes or standards of good taste."

The Electronic Frontier Foundation (EFF) filed an amicus brief in this case, arguing that the revised federal anti-stalking statute – expanded in 2006 as part of the Violence Against Women Act to criminalize causing emotional distress by means of an "interactive computer service" – was unconstitutionally vague and ran afoul of First Amendment protections as an unlawful content-based restriction. EFF argued that even though some criticism of public figures may be offensive, emotional distress was not a sufficient basis on which to criminalize speech.

"Speech on social networking sites – as with speech anywhere – has the potential to inform and enlighten as well as to outrage," said Senior Staff Attorney Matt Zimmerman. "It is imperative that courts recognize and uphold First Amendment protections in order to give all manner of expression sufficient breathing space to thrive online. No speaker should be threatened with prosecution – let alone held in jail as Mr. Cassidy was here – on the basis of allegations of 'offensive' speech."

Judge Roger W. Titus ruled today that the expanded federal statute was unconstitutional as applied to the use of Twitter to publicly post criticism of the religious leader discussed in this case. While she is not named in court documents, the judge noted that she "is not merely a private individual but rather an easily identifiable public figure that leads a religious sect, and that many of the Defendant's statements relate to [the sect's] beliefs and [her] qualifications as a leader." Citing the Supreme Court's seminal 1964 ruling in New York Times Co. v. Sullivan, the court noted that "the fundamental importance of the free flow of ideas and opinions on matters of public concern is the core of the First Amendment Protections, even where speech includes 'vehement, caustic, and sometimes unpleasantly sharp attacks.'"

"We are grateful that the court recognized the critical First Amendment issues at stake in this case," said Staff Attorney Hanni Fakhoury. "Law enforcement may have disagreed with the tone and content of Mr. Cassidy's speech, but the police hauling a Twitter user to jail for offending a public figure was the greater harm."

Having found the statute to violate the First Amendment as applied in this case, Judge Titus declined to rule on whether the statute was facially unconstitutional. William Cassidy will be released next week unless the government seeks a stay and appeals the ruling.

For the full order in U.S. v. Cassidy:
https://www.eff.org/files/filenode/cassidy-order-121511.pdf

Contacts:

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

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

November 30, 2011

Copyright Office Should Expand Legal Protections for Jailbreakers and Video Artists

San Francisco - The Electronic Frontier Foundation (EFF) urged the U.S. Copyright Office today to renew and expand the critical exemptions to the Digital Millennium Copyright Act (DMCA) granted last year in response to EFF's requests to protect the rights of American consumers who modify electronic gadgets and make remix videos.

In the exemption requests filed today, EFF asked the Copyright Office to protect the "jailbreaking" of smartphones, electronic tablets, and video game consoles – liberating them to run operating systems and applications from any source, not just those approved by the manufacturer. EFF also asked for legal protections for artists and critics who use excerpts from DVDs or downloading services to create new, remixed works. These exemptions build on and expand exemptions that EFF won last year for jailbreakers and remix artists.

"The DMCA is supposed to block copyright infringement. But instead it can be misused to threaten creators, innovators, and consumers, discouraging them from making full and fair use of their own property," said EFF Intellectual Property Director Corynne McSherry. "Hobbyists and tinkerers who want to modify their phones or video game consoles to run software programs of their choice deserve protection under the law. So do artists and critics who use short excerpts of video content to create new works of commentary and criticism. Copyright law shouldn't be stifling such uses – it should be encouraging them."

EFF's requests are part of the Copyright Office's rulemaking process, convened every three years to consider exemptions to the DMCA's prohibitions on "circumventing" digital rights management (DRM) and "other technical protection measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Exemptions are meant to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials.

"We were thrilled that EFF won important exemptions to the DMCA in the last rulemaking," said EFF Senior Staff Attorney Marcia Hofmann. "But technology has evolved over the last three years, and so it's important to expand these exemptions to cover the real-world uses of smartphones, tablets, video game consoles, DVDs, and video downloads."

In drafting the requests, EFF had the invaluable assistance of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, and the Organization for Transformative Works.

The Copyright Office will hold hearings on the proposed DMCA exemptions in the spring of 2012, with a final rulemaking order expected in October 2012.

For the full exemption requests:
https://www.eff.org/files/filenode/2012_dmca_exemption_requests_no_appendix.pdf

For more on DMCA rulemaking:
https://www.eff.org/issues/dmca-rulemaking

Contacts:

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

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

Related Issues:
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