EFF in the News
In these and other cases, however, the White House is fighting outside groups like the ACLU, Citizens for Responsibility and Ethics in Washington, and the Electronic Frontier Foundation, which it can try to stonewall in the courts with relatively little press attention.
Privacy groups like the Electronic Frontier Foundation have pushed Congress to stop border officers from searching laptops, cell phones and other electronic devices without probable cause when people enter or return to the country.
Today's lawsuit is not the first time the DHS has been pressed for more information on its policies relating to border laptop searches. The Electronic Frontier Foundation (EFF) and the Asian Law Caucus had filed a similar FOIA lawsuit in February 2008, in which they had sought similar data from the CBP.
In response to that lawsuit, the CBP released about 600 pages worth of information on its policies relating to border laptop searches, said Marcia Hoffman, an attorney for EFF. (The documents are available on EFF's site.)
"It gave us some insight into their policies and procedures around border searches," Hoffman said. What the documents showed was that until fairly recently DHS had not thought about how policies covering other forms of searches applied to digital information, she said. Following the EFF and Asian Law Caucus lawsuit, the CBP also published a formal note describing its policy regarding border searches.
The problem with the location-based services is that it affects a skittishness in people. Concepts like location-based services that send "bits of data back to Google" tend to make people nervous. Electronic Frontier Foundation has a great report on the intersection of location services and privacy.
EFF attorney Matt Zimmerman says the developer is targeting people "solely based on their critical speech and nothing else." He adds that the developer has no reason to think that any of the Web commenters are involved in the lawsuit. "This would be like going into the neighborhood that is affected by this development project and subpoenaing every resident because -- who knows? -- maybe the resident might have information relevant to their case," he says.
"As opposed to 20 years ago, everyone’s moving online the general discussion that they’d have had with their friends in the lunchroom," says Electronic Frontier Foundation senior staff attorney Matt Zimmerman. "Are we really saying that it’s the job of the courts to monitor these kinds of tit-for-tat, silly, pointless insults?"
Matt Zimmerman, senior staff attorney at the Electronic Frontier Foundation, which advocates for the rights of anonymous speech, said there are tools people can use to try to hide their footprints online. But none is 100 percent effective, he said.
That leaves some online writers who use pseudonyms in the stressful situation of not knowing if or when their real names will be revealed.
Matt Zimmerman, senior staff attorney at the Electronic Frontier Foundation in San Francisco, said of the Cohen case:
"The notion that you can use the court as your personal private investigator to out anonymous critics is a dangerous precedent to set. This doesn't change the rules ... but I think the practical impact is that litigious people will see this as a green light to try to out critics. It's one of those bad facts make bad law cases. The court looked at the type of statements being made and the person wasn't engaging in very defensive behavior and unfortunately that affected the court's outcome. ... What the court was reacting to was what was more sympathetic, which was the plaintiff."
The co-signers of the Aug. 1 request include representatives from OpenTheGovernment.org, Federation of American Scientists, Citizens for Responsibility and Ethics in Washington and the Electronic Frontier Foundation.
The Electronic Frontier Foundation, the ACLU of Northern California and the Consumer Watchdog advocacy group wrote to Google to ask the company to "assure Americans that Google will maintain the security and freedom that library patrons have long had: to read and learn about anything... without worrying that someone is looking over their shoulder or could retrace their steps".