EFF in the News
The American Civil Liberties Union and the Electronic Frontier Foundation see more nefarious implications of the instruments, known as Radio Frequency Identification Devices. The groups wrote Tuesday to the inspector general for the U.S. Department of Health and Human Services, asking questions about the decision to track little kids with devices they said be read up to 300 feet away, making them “more vulnerable to stalking and kidnapping.”
But Julie Samuels, staff attorney at the Electronic Frontier Foundation, says such technologies seem overly invasive. "Taking a photo of the user from their phones without the user knowing, reading someone's heartbeat -- that sounds crazy to me. Apple talks in the patent about storing that information, which they call highly sensitive data. They can store it and wipe your phone out if someone steals it. But what if someone doesn't steal it? What do they do with that sensitive data?"
"Through this now years-long struggle, Craigslist's legal position has been and remains absolutely, unequivocally correct: the Communications Decency Act of 1996 (or CDA) grants providers of 'interactive computer services' an absolute shield against state criminal law liability stemming from material posted by third parties," EFF senior staff attorney Matt Zimmerman wrote in that blog post. "Put simply, the law ensures that the virtual soapbox is not liable for what the speaker says: merely creating a forum in which users post ads that may violate state law plainly does not lead to liability for a Web site operator.
While privacy advocates see it as a victory, there are still outstanding issues. "What the court didn't rule on was whether or not the fourth amendment always protects cell phone tracking data records. The court didn't rule whether government always needed a warrant to obtain this data," said Kevin Bankston, senior staff attorney of the EFF. "There isn't a clear nationwide standard on this yet. It's been constitutional avoidance. In this case, the court didn't answer that question."
Kevin Bankston, an attorney with the Electronic Frontier Foundation, an advocacy group that had filed an amicus brief in the case, welcomed the verdict.
"The SCA allows the government to obtain cell location data without a warrant. This ruling holds that under the statutes, courts have the discretion to instead require the government to show probable cause and get a warrant [when needed,]" Bankston said.
"This decision gives the front-line judges new tools to exercise oversight and to raise the bar when the government seeks cell phone location data," he said.
It’s been a controversial story thanks in part to Craigslist’s “we’re being censored” battle cry. Many people have come to the site’s defense, including Danah Boyd and the Electronic Frontier Foundation. Attorney Matt Zimmerman of the EFF writes:
Through this now years-long struggle, Craigslist’s legal position has been and remains absolutely, unequivocally correct: the Communications Decency Act of 1996 (or CDA) grants providers of “interactive computer services” an absolute shield against state criminal law liability stemming from material posted by third parties. Put simply, the law ensures that the virtual soapbox is not liable for what the speaker says: merely creating a forum in which users post ads that may violate state law plainly does not lead to liability for a web site operator.
Currently there's still a debate on whether the Fourth Amendment applies to phone records. "This decision does not definitively answer the question of the Fourth Amendment status of cell phone [location records]," said Electronic Frontier Foundation attorney Kevin Bankston.
Rebecca Jeschke with the Electronic Frontier Foundation says that before a parent decides to try this technology, they need to ask some hard questions of the company that's offering it.
"They need to know what kind of information is being gathered. How long is it being kept. Who has access to it. When is it going to get deleted," Jeschke cautioned.
Julie Samuels, a staff attorney at the Electronic Frontier Foundation, did point out that Allen is taking an unusual approach. Usually, someone trying to enforce patents will go after smaller players who have fewer resources to defend themselves, to establish a record of settlements and licensing agreements to bolster their position against larger players.
In this case, Allen went after the biggest companies in the industry, who have legions of attorneys and plenty of money to wage a long fight.
"You typically don't sue Google and Facebook upfront like that," she said. "They've shown they're willing to fight these things. It's an interesting strategy. It seems like something else is going on. They did this in a very loud way."
"Well, it's not what I would have written," said Cindy Cohn, EFF's legal director. "I think the letters are much better than they were, but I don't think [DGW] has done a great job of explaining what is happening"...
When asked what people who find themselves accused by Voltage should do, Cohn advised them to go to EFF's site where they can find information about attorneys, many of whom charge a fee, but have experience in this field.