Press Releases: April 2016
Copyright Laws Are No Obstacle to New Devices, Despite Cable Company Claims
Washington, D.C.—The Electronic Frontier Foundation (EFF) urged the Federal Communications Commission (FCC) to adopt robust, consumer-friendly “Unlock the Box” rules that will give Americans access to more innovative, useful, and creative devices and software for watching pay cable and satellite television.
The FCC’s proposed “Unlock the Box” rules will allow any manufacturer to create and market devices or apps that will connect consumers to their cable or satellite TV feeds. The proposal will lead to a new generation of navigation devices that let viewers search and play shows on cable, online services, or over-the-air broadcasts from a single clicker, app, or box.
“Unlock the Box” is a long-overdue effort to open up the closed world of TV set-top boxes to competition. For decades pay-TV customers have had no choice but to rent set-top boxes—and while the cost of the TVs and computers they use for viewing has dropped by 90 percent, the cost of cable set-top boxes that often contain three-generations-old technology have risen 185 percent. Recently, some pay-TV companies have begun making some programming available through apps on other devices, but they remain in complete control of the design and function of those apps, while competitors are locked out.
In comments to the FCC today, EFF urged adoption of “Unlock the Box” rules that maintain user privacy, allow testing by security researchers, and steer clear of loopholes that would enable cable and satellite TV companies to use copyright and other laws to maintain control over consumer devices for navigating TV viewing.
“Clunky, technologically-backwards rental set-top boxes that cost consumers an average of $231 a year and earn billions for cable companies are a frozen artifact of a bygone era. A handful of companies now maintain a monopoly over how consumers access the programming they pay for,’’ said EFF Senior Staff Attorney Mitch Stoltz. “Competition will drive innovation in features and allow consumers to vote with their dollars for devices that are easier to use, have more sophisticated search functions, and integrate multiple sources of programming.”
Cable and satellite companies, movie studios and other major media companies allege “Unlock the Box” rules will lead to unauthorized access to their content, and that building tools for finding and viewing TV content should require permission.
This is nonsense, EFF told the FCC today. The proposed rules don’t permit consumers to access content they haven’t paid for or authorize copying or distribution of TV programming. Copyright laws don’t give rightsholders the power to control the features of your home video devices, or to dictate how you can find and watch the programming that you pay for.
EFF is also urging the FCC to ensure that manufactures of new navigation tools are subject to strong privacy standards that will give consumers the same protections they currently have. EFF warned against giving cable and satellite TV companies authority to decide which devices comply with consumer protection rules—this would only give them another opportunity to attempt to control the device market or exclude competition.
“Consumers need privacy protections, and while competitive device makers aren’t subject to FCC regulations we believe they should be subject to the same legal standards for privacy as cable and satellite TV companies,” said EFF Senior Staff Attorney Lee Tien. “For too long every effort to improve the pay-TV experience for consumers has been derailed by companies that control set-top boxes. If ‘Unlock the Box’ rules are implemented, consumers will be the winners.”
EFF Will Appeal to Protect First Amendment Rights
San Francisco - A federal judge has unsealed her ruling that National Security Letter (NSL) provisions in federal law—as amended by the USA FREEDOM Act—don’t violate the Constitution. The ruling allows the FBI to continue to issue the letters with accompanying gag orders that silence anyone from disclosing they have received an NSL, often for years. The Electronic Frontier Foundation (EFF) represents two service providers in challenging the NSL statutes, who will appeal this decision to the United States Court of Appeals for the Ninth Circuit.
“Our heroic clients want to talk about the NSLs they received from the government, but they’ve been gagged—one of them since 2011,” said EFF Deputy Executive Director Kurt Opsahl. “This government silencing means the service providers cannot issue open and honest transparency reports and can’t share their experiences as part of the ongoing public debate over NSLs and their potential for abuse. Despite this setback, we will take this fight to the appeals court, again, to combat USA FREEDOM’s unconstitutional NSL provisions.”
This long-running battle started in 2011, after one of EFF’s clients challenged an NSL and the gag order it received. In 2013, U.S. District Court Judge Susan Illston issued a groundbreaking decision, ruling that the NSL power was unconstitutional. However, the government appealed, and the Ninth Circuit found that changes made by the USA FREEDOM Act passed by Congress last year required a new review by the District Court.
In the decision unsealed this week, the District Court found that the USA FREEDOM Act sufficiently addressed the facial constitutional problems with the NSL law. However, she also ruled that the FBI had failed to provide a sufficient justification for one of our client’s challenges to the NSLs. After reviewing the government’s justification, the court found no “reasonable likelihood that disclosure … would result in danger to the national security of the United States,” or other asserted dangers, and prohibited the government from enforcing that gag. However, the client still cannot identify itself because the court stayed this portion of the decision pending appeal.
“We are extremely disappointed that the superficial changes in the NSL statutes were determined to be good enough to meet the requirements of the First Amendment,” said EFF Staff Attorney Andrew Crocker. “NSL recipients still can be gagged at the FBI’s say-so, without any procedural protections, time limits or judicial oversight. This is a prior restraint on free speech, and it’s unconstitutional.”
The NSL statutes have been highly controversial since their use was expanded under the USA PATRIOT Act. With an NSL, the FBI—on its own, without any judge’s approval—can issue a secret letter to communications service providers, requiring the service to turn over subscriber and other basic non-content information about their customers. The gag orders that the FBI routinely issues along with an NSL have hampered discussion and debate about the process.
For the full unsealed order:
For more on National Security Letters:
All Significant FISC Orders Must Be Declassified Under USA FREEDOM
San Francisco—The Electronic Frontier Foundation (EFF) filed a Freedom of Information (FOIA) lawsuit today against the Justice Department to shed light on whether the government has ever used secret court orders to force technology companies to decrypt their customers’ private communications, a practice that could undermine the safety and security of devices used by millions of people.
The lawsuit argues that the DOJ must disclose if the government has ever sought or obtained an order from the Foreign Intelligence Surveillance Court (FISC) requiring third parties—like Apple or Google—to provide technical assistance to carry out surveillance.
The suit separately alleges that the agency has failed to turn over other significant FISC opinions that must be declassified as part of surveillance reforms that Congress enacted with the USA FREEDOM Act.
EFF filed its FOIA requests in October and March amid increasing government pressure on technology companies to provide access to customers’ devices and encrypted communications for investigations. Although the FBI has sought orders from public federal courts to create a backdoor to an iPhone, it is unclear to what extent the government has sought or obtained similar orders from the FISC. The FISC operates mostly in secret and grants nearly every government surveillance request it receives.
The FBI’s controversial attempt to force Apple to build a special backdoor to an iPhone after the San Bernardino attacks underscored EFF’s concerns that the government is threatening the security of millions of people who use these devices daily. Many citizens, technologists and companies expressed similar outrage and concern over the FBI’s actions.
Given the public concern regarding government efforts to force private companies to make their customers less secure, EFF wants to know whether similar efforts are happening in secret before the FISC. There is good reason to think so. News outlets have reported that the government has sought FISC orders and opinions requiring companies to turn over source code so that federal agents can find and exploit security vulnerabilities for surveillance purposes.
Whether done in public or in secret, forcing companies to weaken or break encryption or create backdoors to devices undermines the safety and security of millions of people whose laptops and smartphones contain deeply personal, private information, said EFF Senior Staff Attorney Nate Cardozo.
“If the government is obtaining FISC orders to force a company to build backdoors or decrypt their users’ communications, the public has a right to know about those secret demands to compromise people’s phones and computers,” said Cardozo. “The government should not be able to conscript private companies into weakening the security of these devices, particularly via secret court orders.”
In addition to concerns about secret orders for technical assistance, the lawsuit is also necessary to force the government to comply with the USA FREEDOM Act, said EFF Senior Staff Attorney Mark Rumold. Transparency provisions of the law require FISC decisions that contain significant or novel legal interpretations to be declassified and made public. However, the government has argued that USA FREEDOM only applies to significant FISC decisions written after the law was passed.
“Even setting aside the existence of technical assistance orders, there’s no question that other, significant FISC opinions remain hidden from the public. The government’s narrow interpretation of its transparency obligations under USA FREEDOM is inconsistent with the language of the statute and Congress’ intent,’’ said Rumold. “Congress wanted to bring an end to secret surveillance law, so it required that all significant FISC opinions be declassified and released. Our lawsuit seeks to hold DOJ accountable to the law.”
For the full complaint:
Safe Harbors Work for Rightsholders and Service Providers
Washington, D.C. - Content takedowns based on unfounded copyright claims are hurting online free expression, the Electronic Frontier Foundation (EFF) told the U.S. Copyright Office Friday, arguing that any reform of the Digital Millennium Copyright Act (DMCA) should focus on protecting Internet speech and creativity.
EFF’s written comments were filed as part of a series of studies on the effectiveness of the DMCA, begun by the Copyright Office this year. This round of public comments focuses on Section 512, which provides a notice-and-takedown process for addressing online copyright infringement, as well as “safe harbors” for Internet services that comply.
“One of the central questions of the study is whether the safe harbors are working as intended, and the answer is largely yes," said EFF Legal Director Corynne McSherry. “The safe harbors were supposed to give rightsholders streamlined tools to police infringement, and give service providers clear rules so they could avoid liability for the potentially infringing acts of their users. Without those safe harbors, the Internet as we know it simply wouldn’t exist, and our ability to create, innovate, and share ideas would suffer.”
As EFF also notes in its comments, however, the notice-and-takedown process is often abused. A recent report found that the notice-and-takedown system is riddled with errors, misuse, and overreach, leaving much legal and legitimate content offline. EFF’s comments describe numerous examples of bad takedowns, including many that seemed based on automated content filters employed by the major online content sharing services. In Friday’s comments, EFF outlined parameters endorsed by many public interest groups to rein in filtering technologies and protect users from unfounded blocks and takedowns.
“A significant swath of lawful speech is getting blocked from the Internet, just because it makes use of a copyrighted work,” said EFF Staff Attorney Kit Walsh. “The Internet needs fewer bad copyright claims—not more burdensome copyright laws—to protect speech.”
For EFF’s full comments to the copyright office: