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EFF Press Release Archives

EFF Press Release Archives

Press Releases: June 2016

June 21, 2016

Changes to Rule 41 Will Greatly Increase Law Enforcement Hacking, Surveillance

San Francisco—The Electronic Frontier Foundation (EFF), the Tor Project, and dozens of other organizations are calling today on citizens and website operators to take action to block a new rule pushed by the U.S. Justice Department that would greatly expand the government’s ability to hack users’ computers and interfere with anonymity on the web.

EFF and over 40 partner organizations are holding a day of action for a new campaign——to engage citizens about the dangers of Rule 41 and push U.S. lawmakers to oppose it. The process for updating these rules—which govern federal criminal court processes—was intended to deal exclusively with procedural issues. But this year a U.S. judicial committee approved changes in the rule that will expand judicial authority to grant warrants for government hacking.

“The government is attempting to use a process designed for procedural changes to expand its investigatory powers,” said EFF Activism Director Rainey Reitman. “Make no mistake: these changes to Rule 41 will result in a dramatic increase in government hacking. The government is trying to avoid scrutiny and sneak these new powers past the public and Congress through an obscure administrative process.”

Right now, Rule 41 only authorizes federal magistrate judges to issue warrants to conduct searches in the judicial district where the magistrate is located. The new Rule 41 would for the first time authorize magistrates to issue warrants when “technological means,” like Tor or virtual private networks (VPNs), are obscuring the location of a computer. In these circumstances, the rule changes would authorize warrants to remotely access, search, seize, or copy data on computers, wherever in the world they are located.

“Tor users worldwide could be affected by these new rules,” said Kate Krauss, Director of Public Policy and Communications for the Tor Project. “Tor is used by journalists, members of Congress, diplomats, and human rights activists who urgently need its protection to safeguard their privacy and security—but these rules will give the Justice Department new authority to snoop into their computers."

The changes to Rule 41 would also take the unprecedented step of allowing a court to issue a warrant to hack into the computers of innocent Internet users who are themselves victims of a botnet, EFF and its partners said in a letter to members of Congress today.

EFF and its partners launched, a campaign page outlining problems with the changes to Rule 41 and listing over 40 Internet companies, digital privacy providers, and public interest groups that support the project. The coalition is asking website owners to embed on their sites unique code that will display a banner allowing people to email members of Congress or sign a petition opposing Rule 41. The groups are also calling on citizens to speak out against Rule 41 on social media and blogs. The aim is to send a message to Congress that it should not authorize this expansion of government hacking and must reject Rule 41 changes.

For the coalition letter:



Activism Director

Senior Staff Attorney

June 7, 2016

‘Total Profits’ Damage Awards For Infringing Design Patents Are Excessive, Unfair

Washington, D.C.—The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court today to reverse a ruling that required Samsung to pay Apple all the profits it earned from smartphones that infringed three basic design patents owned by the iPhone maker.

The $399-million damage award against Samsung, upheld by the United States Court of Appeals for the Federal Circuit in the Apple v. Samsung patent lawsuit, should be thrown out, EFF told the court in an amicus brief filed today with Public Knowledge and The R Street Institute. Forcing defendants to give up 100% of their profits for infringing designs that may only marginally contribute to a product’s overall look and functionality will encourage frivolous lawsuits and lead to excessive damage awards that will raise prices for consumers and deter innovation.

The smartphone design patents at issue in the case include a black rectangular front face with round corners, another for a similar face with a rim and a colorful grid of 16 icons.

"The patent system is supposed to offer fair reward for inventors, not excessive, unfair compensation that threatens our access to technology,” said Vera Ranieri, EFF Staff Attorney. "Such massive windfalls for patent holders will encourage more frivolous lawsuits."

A jury in 2012 held that Samsung’s phones infringed Apple’s utility and design patents; Apple was originally granted $1.05 billion in damages—that amount was later reduced. Samsung appealed to the Federal Circuit, which interpreted, wrongly EFF asserts, that under the Patent Act patent owners are entitled to the entire profit from products that use the patented design. Samsung, EFF, and other technology companies and public interest groups sought and won Supreme Court review of the case.

A more balanced alternative to the improper "winner takes all" approach adopted by the Federal Circuit would be to base damages on how much the infringing designs contributed to the overall value of the smartphones Samsung sold, EFF said.

If the Federal Circuit’s decision is allowed to stand it will create incentives for more design patent lawsuits to flood the courts. Any product or technology that may infringe on a design patent—regardless of whether the infringed design contributes just 1% of the value of a complex product and or whether the patent was intentionally infringed—could trigger the “total profit” rule and allow the patent holder claim 100% of all the profits from the product.

"The Federal Circuit’s reading of the Patent Act was flawed, and we’re asking the Supreme Court to adopt an interpretation that more appropriately balances the interests of patent holders, the industry, and the public," said Ranieri. "There’s good reason to believe that the Federal Circuit’s interpretation will create a cottage industry of abusive patent lawsuits that will enrich clever lawyers at the expense of the public."

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