EFF in the News
"On the fact the pen/trap order makes no reference to a stingray or IMSI catcher at all is really troubling because this order reads like any standard pen/trap application which would be given to a cell phone provider," Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, and a former federal public defender, told Ars by e-mail.
"But of course the scope of information obtained via an IMSI catcher is potentially much greater," Fakhoury said. "So it suggest that unless the officers are telling the judges in the affidavit or when they’re in chambers swearing out the affidavit that they’re planning on using a stingray, there’s nothing to indicate what exactly law enforcement is planning to do. And of course, we find that highly problematic."
All this the government had deemed legal. But on May 7th the Second Circuit Court of Appeals ruled in favour of the American Civil Liberties Union (ACLU) in a case against the government over Section 215. Looking at metadata remains legal, the court ruled, but its “bulk collection” is not. That, says Mark Jaycox of the Electronic Frontier Foundation, a civil-liberties-minded pressure group, is a partial vindication of Mr Snowden’s whistleblowing.
“We want to have neutral platforms for speech but that comes at a price,” says Corynne McSherry, Legal Director of the Electronic Frontier Foundation (EFF).
Hanni Fakhoury, a senior staff attorney with the Electronic Frontier Foundation and a former federal public defender in San Diego, said that under California law, there are greater protections for phone records than in federal court. He cited two opinions by the state attorney general that require law enforcement agencies to obtain either a grand jury subpoena or a warrant to install a PEN register, rather than relying on a federal order, which is not reviewed by a judge.
“People have an expectation of privacy under the California Constitution for their phone records,” Fakhoury said.
“It’s a nice confluence of business pressure and public pressure to do something,” says Mark Jaycox of the Electronic Frontier Foundation.
According to Jaycox, the revelations of Edward Snowden, which showed how the U.S. government slurps up mass amounts of data from tech and phone companies, is leading more consumers to look for ways to mask their activities online. This could prove a headache for companies that depend on data to sell advertising. Meanwhile, the Snowden affair also threatens the tech industry overseas, where countries have threatened to shun U.S. cloud computing providers.
Templeton has been in the computer industry for several decades -- he's a former director with the Electronic Frontier Foundation (EFF) and founder of the world's first dot-com company -- and he's very familiar with the risks of making predictions. For him, historical accounts of past forecasts can be cringe-worthy.
This ruling prompted some rethinking of the USA Freedom Act by the Electronic Frontier Foundation (EFF). The group had previously endorsed each iteration of the act, increasingly reluctantly as it was watered down with each session. In response to the court ruling, though, EFF withdrew its support and went neutral, calling for legislators to now strengthen the act.
Mark Jaycox, a legislative analyst for EFF who has been writing about the USA Freedom Act, still has positive things to say about it, but doesn't want Congress to settle for less than it has to. It's the first reform of NSA surveillance since the 1970s. There should be more to it.
"The USA Freedom Act should be stronger," Jaycox says. "Congress should be pushing for more control for themselves and more for the public." EFF would like Congress to return to the first iteration of the act that called for a stronger adversarial position within the FISA court, not just an adviser. They want Congress to address other authorizations used to justify bulk metadata collection, not just Section 215 and National Security Letters. They want better "minimization" procedures to make sure information that isn't directly connected to an investigation is properly purged. And they want to remove an "emergency exception" that allows the government to snoop on any "non-United States person" for 72 hours without any court authorization at all.
“What happened to Garcia was awful. And we can all agree on that,” says Corynne McSherry, legal director of the Electronic Frontier Foundation, who also wrote a legal brief defending Google and YouTube in the dispute. “But the court took a bad situation for one person and made it a bad situation for a lot of people.”
Considering how everybody on the Internet knows that the mark of a good troll is that you can’t even tell if they’re for real, what constitutes threatening the president, as opposed to just exercising your constitutionally-protected free speech?
Legally speaking, that’s a grey area that will likely get a little more color in the next few weeks. “Basically, the First Amendment does not protect true threats: any statement that conveys an intent to do harm or physical injury,” Hanni Fakhoury, senior staff attorney at the Electronic Frontier Foundation, told the Daily Dot. “What makes this particularly complicated and interesting is the Supreme Court is considering a case of whether a person actually had to show the threat of harm with Elonis v. United States.”
Roberts declined to comment Monday when reached at his Denver, Colorado, office. In a statement issued through his attorney, he said his "only interest has been to improve aircraft safety."
"Given the current situation, I've been advised against saying more," said the statement provided by Nate Cardozo, a staff attorney with the San Francisco-based Electronic Frontier Foundation.