Press Releases: July 2016
Future of Technology and How It’s Used Is At Stake
Washington D.C.—The Electronic Frontier Foundation (EFF) sued the U.S. government today on behalf of technology creators and researchers to overturn onerous provisions of copyright law that violate the First Amendment.
EFF’s lawsuit, filed with co-counsel Brian Willen, Stephen Gikow, and Lauren Gallo White of Wilson Sonsini Goodrich & Rosati, challenges the anti-circumvention and anti-trafficking provisions of the 18-year-old Digital Millennium Copyright Act (DMCA). These provisions—contained in Section 1201 of the DMCA—make it unlawful for people to get around the software that restricts access to lawfully-purchased copyrighted material, such as films, songs, and the computer code that controls vehicles, devices, and appliances. This ban applies even where people want to make noninfringing fair uses of the materials they are accessing.
Ostensibly enacted to fight music and movie piracy, Section 1201 has long served to restrict people’s ability to access, use, and even speak out about copyrighted materials—including the software that is increasingly embedded in everyday things. The law imposes a legal cloud over our rights to tinker with or repair the devices we own, to convert videos so that they can play on multiple platforms, remix a video, or conduct independent security research that would reveal dangerous security flaws in our computers, cars, and medical devices. It criminalizes the creation of tools to let people access and use those materials.
Copyright law is supposed to exist in harmony with the First Amendment. But the prospect of costly legal battles or criminal prosecution stymies creators, academics, inventors, and researchers. In the complaint filed today in U.S. District Court in Washington D.C., EFF argues that this violates their First Amendment right to freedom of expression.
“The creative process requires building on what has come before, and the First Amendment preserves our right to transform creative works to express a new message, and to research and talk about the computer code that controls so much of our world,” said EFF Staff Attorney Kit Walsh. “Section 1201 threatens ordinary people with financial ruin or even a prison sentence for exercising those freedoms, and that cannot stand.”
EFF is representing plaintiff Andrew “bunnie” Huang, a prominent computer scientist and inventor, and his company Alphamax LLC, where he is developing devices for editing digital video streams. Those products would enable people to make innovative uses of their paid video content, such as captioning a presidential debate with a running Twitter comment field or enabling remixes of high-definition video. But using or offering this technology could run afoul of Section 1201.
“Section 1201 prevents the act of creation from being spontaneous,’’ said Huang. “Nascent 1201-free ecosystems outside the U.S. are leading indicators of how far behind the next generations of Americans will be if we don’t end this DMCA censorship. I was born into a 1201-free world, and our future generations deserve that same freedom of thought and expression.”
EFF is also representing plaintiff Matthew Green, a computer security researcher at Johns Hopkins University who wants to make sure that we all can trust the devices that we count on to communicate, underpin our financial transactions, and secure our most private medical information. Despite this work being vital for all Americans' safety, Green had to seek an exemption from the Library of Congress last year for his security research.
“The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said Walsh. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.”
For the complaint:
Iris Scans, Palm Prints, Face Recognition Data, and More Collected From Millions of Innocent Citizens
San Francisco—The FBI, which has created a massive database of biometric information on millions of Americans never involved in a crime, mustn’t be allowed to shield this trove of personal information from Privacy Act rules that let people learn what data the government has on them and restrict how it can be used.
The Electronic Frontier Foundation (EFF) filed comments today with the FBI, on behalf of itself and six civil liberties groups, objecting to the agency’s request to exempt the Next Generation Identification (NGI) database from key provisions of federal privacy regulations that protect personal data from misuse and abuse. The FBI has amassed this database with little congressional and public oversight, failed for years to provide basic information about NGI as required by law, and dragged its feet to disclose—again, as required by law—a detailed description of the records and its policies for maintaining them. Now it wants to be exempt from even the most basic notice and data correction requirements.
NGI includes prints and face recognition data from millions of everyday people who’ve committed no crime but have had their biometric data collected when they needed a background check for a job, applied for welfare benefits, registered for immigration, or obtained state licenses to be a teacher, realtor, or dentist. For example, NGI holds millions of photographs searchable through facial recognition and accessible by 20,000 foreign, federal, state, and municipal-level law enforcement agencies.
The public’s understanding of the FBI’s collection of biometric information is only now coming to light because the agency has been less than forthcoming about its data gathering. In June, the Government Accountability Office published an exhaustive report revealing that the FBI has access to hundreds of millions more photos of Americans than we ever thought and has been hiding that from the public in violation of federal and agency laws for years. Previously, many believed that NGI just contained criminal case records such as fingerprints and mug shots collected during arrests.
“The FBI has sidestepped the Privacy Act as it has expanded NGI, essentially saying ‘just trust us’ with highly personal and private data,” said EFF Senior Staff Attorney Jennifer Lynch. “But the FBI hasn’t proved itself to be worthy of the public’s trust. Exempting NGI from the Privacy Act will eliminate our rights to access our own records and take action against the government when it make mistakes with that data. The Privacy Act is only the barest of protection for Americans, but the FBI wants to escape from even that basic responsibility.”
The FBI refuses to recognize accuracy is an issue with face recognition or to publish any data on NGI’s accuracy rates. However, research has shown that face recognition misidentifies African Americans, ethnic minorities, women, and young people at higher rates than whites and men. This means that potential errors within NGI will likely impact people of color more frequently, especially because FBI databases include a disproportionate number of African Americans, Latinos and immigrants, thanks to well-documented racial bias among law enforcement.
This is why it’s particularly important that people be able to use the Privacy Act to learn about NGI—it ensures that people can access records the FBI has on them and allows them to take the FBI to court, if needed, to correct any inaccurate information.
“Over 2,000 Americans have signed an EFF petition objecting to the FBI’s exemption proposal, including the vague, incomplete explanation of how the FBI is maintaining our private records,” said Lynch. “Our message to the FBI is that citizens deserve the right to know what information it has on them, and the bureau must be obligated to correct inaccurate data. Its attempt to skirt these rules must be rejected.”
EFF was joined in its comments by American Civil Liberties Union, Advocacy for Principled Action in Government, Council on Arab-Islamic Relations (CAIR), Fight for the Future, National Immigration Law Center, and National Immigration Project of the National Lawyers Guild.
For our comments: