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November 6, 2013

Advocacy Organizations Seek Immediate Court Ruling on the Legality of the NSA’s Mass Collection of Telephone Records

San Francisco - The Electronic Frontier Foundation (EFF) has provided a federal judge with testimony from 22 separate advocacy organizations detailing how the National Security Agency's (NSA) mass telephone records collection program has impeded the groups' work, discouraged their members and reduced the numbers of people seeking their help via hotlines. The declarations accompanied a motion for partial summary judgment filed late Wednesday, in which EFF asks the court to declare the surveillance illegal on two levels—the law does not authorize the program, and the Constitution forbids it.

In First Unitarian Church of Los Angeles v. NSA, EFF represents a diverse array of environmentalists, gun-rights activists, religious groups, human-rights workers, drug-policy advocates and others that share one major commonality: they each depend on the First Amendment's guarantee of free association. EFF argues that if the government vacuums up the records of every phone call—who made the call, who received the call, when and how long the parties spoke—then people will be afraid to join or engage with organizations that may have dissenting views on political issues of the day. The US government acknowledged the existence of the telephone records collection program this summer, after whistleblower Edward Snowden leaked a copy of a Foreign Intelligence Surveillance Court order authorizing the mass collection of Verizon telephone records.

"The plaintiffs, like countless other associations across the country, have suffered real and concrete harm because they have lost the ability to assure their constituents that the fact of their telephone communications between them will be kept confidential from the federal government," EFF Senior Staff Attorney David Greene said. "This has caused constituents to reduce their calling. This is exactly the type of chilling effect on the freedom of association that the First Amendment forbids."

In Wednesday's motion, EFF asks the US District Court for the Northern District of California to review the undisputed evidence at hand and rule that the NSA's "Associational Tracking Program" is not only unconstitutional, but not authorized under Section 215 of the USA PATRIOT ACT, the law the government has so far used to justify its surveillance.

The statute authorizes the government to collect information only if the information "is relevant to an authorized investigation." Because the government collects the records of every telephone call made to, from and within the United States, the vast majority of the records it collects are plainly irrelevant.

"Section 215 is a simple statute designed to give the FBI something like the subpoena power available in criminal investigations," attorney Thomas Moore, an EFF special counsel, said. "It was not intended to authorize the dragnet surveillance the NSA has undertaken. A government of the people, by the people, and for the people should not be spying on the people."

The motion could be argued as early as February 2014.

For the motion for partial summary judgment:

https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment-0

For the declarations:

https://www.eff.org/document/all-plaintiffs-declarations

Contact:

David Greene
Senior Staff Attorney
Electronic Frontier Foundation
davidg@eff.org

Selected declaration excerpts:

Rev. Rick Hoyt, First Unitarian Church of Los Angeles:

"The threat of exposure has caused potential visitors to stay away, and members to withdraw from the community, resulting in the church losing its voice and damaging our faith and our organization. Even more damaging is the effect on our neighbors, many of whom depend on the church for basic necessities such as our weekly food distribution, and life-enhancing programs such as exercise classes, and math tutoring for children. Our neighbors now fear that a simple contact with the church inquiring about a church program will bring scrutiny upon other aspects of their lives, or bring their persons to the attention of a government that they may have reason to fear."

Gene Hoffman, Jr., CalGuns Foundations, Inc:

"Many gun owners are distrustful of government or of having any record of their status as gun owners. At least one of our members is only known to us by his online alias and he would only directly contact us via telephone from a blocked number. He has not phoned since the disclosures that lead to this action.

"Many of our constituents have expressed concern about the confidentiality of the fact of their telephone communications with us. Those who do call now leave fewer details in their voicemails of the concern or issue they are calling about, forcing staff and volunteers to make additional contacts to the caller, or more quickly refer the caller to one of our outside attorneys. This creates more expense than if a non-attorney volunteer could have answered a question."

Dinah PoKempner, Human Rights Watch:

"We have experienced an increase in questions from our researchers, other staff, external partners and potential associates expressing concern about the confidentiality of the fact of their communications with HRW itself and among our staff and associates. While it is difficult to get precise information about communications that did not occur, based on the concerns raised by others, I believe that some individuals may have refrained from reporting human rights abuses to us and some partners may have refrained from contacting us due to their concerns about security and confidentiality."

Jennifer Nimer, Council on American-Islamic Relations-Ohio (CAIR-Ohio)

"Because many of the persons CAIR-OHIO represents are subject to tangible manifestations of federal government scrutiny, discretion and confidentiality in their communications and associations with us is of paramount importance to such persons. Knowing that the government is certainly logging communications such persons may have with CAIR-OHIO deters these persons form seeking our assistance.

"By virtue of this 'guilt by association' form of analysis, large swaths of the Ohio Muslim community may be subject to government scrutiny, simply by virtue of having contacted CAIR-OHIO and because of CAIR-OHIO's advocacy efforts on behalf of those wrongly accused. That is, is a CAIR—OHIO client accused or suspected by government of wrongdoing contacts us, all those who contact CAIR-OHIO – including our constituents and prospective clients – are accordingly put at risk of government scrutiny, solely through their shared association with CAIR-OHIO.

"When the very act of communicating by phone with those we aim to serve puts our constituents at risk for further government scrutiny, our organizational mission is essentially undermined."

Heidi Boghosian, National Lawyers Guild:

"Revelations of NSA surveillance in the press has caused NLG members working on litigation and advocacy to restrict discussion of legal strategy, case updates and confidential information to in-person meetings or to written correspondence sent by mail. Practical restraints on the frequency of these meetings results-in less robust information to pass between attorneys and has potentially hindered Guild members from providing as vigorous a legal representation as would have otherwise been possible with secure electronic communication channels."

Dale Gieringer, California Chapter of National Organization for the Reform of Marijuana Laws (NORML):

"California NORML experienced an abrupt drop in the number of hotline calls we received after revelation of NSA's phone surveillance program in late June. Prior to then, we received an average of about 15-20 calls daily on our hotline; afterwards, calls dropped to 5 -10 per day. This data supports our belief that the NSA program had a chilling effect on our constituents' willingness to communicate with us. Moreover, several of our members have expressed similar concerns in this regard."

Rabbi Arthur Waskow, The Shalom Center:

"I had trouble sleeping, delayed some essays and blogs I had been considering, and worried whether my actions might make trouble for nonpolitical relatives. I certainly felt a chill fall across my work of peaceable assembly, association, petition, and the free exercise of my religious convictions. Since as the Rabbinic Director of The Shalom Center I am the chief spokesperson for its religious outlook and religious work, this chilling effect has slowed down, inhibited, and distorted the expression of our religious concerns."

Berin Szoka, TechFreedom:

"For some policymakers, a change in their policy positions attributable to TechFreedom's advocacy may imply, accurately or not, an association or relationship that the policymaker might otherwise be unwilling to publicly acknowledge. This inhibition, in turn, hinders TechFreedom's ability to advocate effectively for its ideas.

"Similarly, our communications with journalists and foreign nationals is limited by the risk of disclosure. Knowing that the government will retain a record of all our communications, and the inevitable possibility of disclosure, will reduce the likelihood of such individuals working with TechFreedom on important Internet freedom issues, which are inherently trans-national and often require collaboration with foreign civil society groups and policymakers."

Dr. Deborah C. Peel, Patient Privacy Rights:

"The Associational Tracking Program activities have harmed PPR because we have experienced a decrease in communications from whistleblowers, members and users who would have requested that their communications with Plaintiff remain secret.

"PPR experienced a decrease in calls to our office phone line during the summer. For example, prior to the revelations of NSA tracking, we received on average 40 calls per month. After the NSA revelations became public, we received on average only 20 calls per month."

Tracy Rosenberg, Media Alliance:

"Several organizational members have asked to have their membership terminated and their data expunged from our database after purchasing products or services (and purchasing memberships for the purpose of receiving discounted prices on those products or services) in the wake of recent publicity about the extent of telephone metadata surveillance. Media Alliance has experienced a significant increase in the number of individuals expressing concern about the privacy of their inquiries and transactions with our organization, more than a doubling from any previous year. I have been in this position since 2007 and the increase is unprecedented. Moreover, we have had a large number of individuals go beyond expressing concern to request the end of their memberships."

Related Issues:
November 6, 2013

Julie Samuels to Press for Relief for Patent Troll Victims

Washington, DC - Electronic Frontier Foundation (EFF) attorney Julie Samuels will testify on how patent trolls harm start-ups and consumers through deceptive demand letters and legal threats at a US Senate Committee on Commerce, Science, and Transportation hearing on Thursday, Nov. 7.

Samuels, who is the Mark Cuban Chair to Eliminate Stupid Patents, will address how patent trolls' tactics amount to a shakedown racket, causing billions of dollars of economic damage each year. The trolls, also known as "patent assertion entities," neither make nor sell anything, but threaten to sue unsuspecting businesses with vague and dubious patent claims. Samuels will argue that Congress should enact statutory protections for consumers who find themselves facing patent troll threats by regulating the demands those trolls make and increasing transparency around those demands.

Who: Julie Samuels, EFF Senior Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents

What: US Senate Committee on Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety, and Insurance hearing: "Demand Letters and Consumer Protection: Examining Deceptive Practices by Patent Assertion Entities"

When: 10:00 am EST, Thursday, Nov. 7

Where: Russell Senate Office Building, Room 253, Washington, DC

Webcast: http://www.commerce.senate.gov

EFF staff will provide live commentary on the hearing via Twitter. Follow @EFFLive or visit https://twitter.com/efflive.

For the official announcement from the Senate Commerce Committee: https://eff.org/r.5chx

Related Issues:
October 24, 2013

Government Damaged the Backbone of the Internet When It Demanded Email Service’s Private Encryption Key

San Francisco - Federal law enforcement officers compromised the backbone of the Internet and violated the Fourth Amendment when they demanded private encryption keys from the email provider Lavabit, the Electronic Frontier Foundation (EFF) argues in a brief submitted Thursday afternoon to the US Court of Appeals for the Fourth Circuit. In the amicus brief, EFF asks the panel to overturn a contempt-of-court finding against Lavabit and its owner Ladar Levison for resisting a government subpoena and search warrant that would have put the private communications and data of Lavabit's 400,000 customers at risk of exposure to the government.

For nearly two decades, secure Internet communication has relied on HTTPS, a encryption system in which there are two keys: A public key that anyone can use to encrypt communications to a service provider, and a private key that only the service provide can use to decrypt the messages.

In July, the Department of Justice demanded Lavabit's private key—first with a subpoena, then with a search warrant. Although the government was investigating a single user, having access to the private key means the government would have the power to read all of Lavabit's customers' communications. The target of the investigation has not been named, but journalists have noted that the requests came shortly after reports that NSA whistleblower Edward Snowden used a Lavabit email account to communicate.

"Obtaining a warrant for a service's private key is no different than obtaining a warrant to search all the houses in a city to find the papers of one suspect," EFF Senior Staff Attorney Jennifer Lynch said. "This case represents an unprecedented use of subpoena power, with the government claiming it can compel a disclosure that would, in one fell swoop, expose the communications of every single one of Lavabit's users to government scrutiny."

EFF's concerns reach beyond this individual case, since the integrity of HTTPS is employed almost universally over the Internet, including in commercial, medical and financial transactions.

"When a private key has been discovered or disclosed to another party, all users' past and future communications are compromised," EFF Staff Technologist Dan Auerbach said. "If this was Facebook's private key, having it would mean unfettered access to the personal information of 20 percent of the earth's population. A private key not only protects communications on a given service; it also protects passwords, credit card information and a user's search engine query terms."

Initially, Levison resisted the government request. In response, a district court found Lavabit in contempt of court and levied a $5,000-per-day fine until the company complied. After Levison was forced to turn over Lavabit's key, the certificate authority GoDaddy revoked the key per standard protocol, rendering the secure site effectively unavailable to users.

Since Lavabit's business model is founded in protecting privacy, Levison shut down the service when it no longer could guarantee security to its customers.

"The government's request to Lavabit not only disrupts the security model on which the Internet depends, but also violates our Constitutional protections against unreasonable searches and seizures," EFF Staff Attorney Hanni Fakhoury said. "By effectively destroying Lavabit's legitimate business model when it complied with the subpoena, the action was unreasonably burdensome and violated the Fourth Amendment."

The deadline for the government's response brief is Nov. 12, 2013.

For EFF's full amicus brief:

https://www.eff.org/document/lavabit-amicus

Contacts:

Jennifer Lynch
   Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

October 23, 2013

StopWatching.us Coalition Releases Video to Support Oct. 26 Rally Against NSA Mass Surveillance

US Rep. John Conyers Jr., “Pentagon Papers” whistleblower Daniel Ellsberg and actor Maggie Gyllenhaal join a chorus of prominent voices calling for an end to mass suspicionless surveillance by the National Security Agency (NSA) in a new short video released by the StopWatching.us coalition. Directed by Brian Knappenberger (We Are Legion: The Story of the Hackivists) and produced by the Electronic Frontier Foundation (EFF), the PSA-style video draws parallels between the privacy invasions perpetrated by the Nixon administration and the dragnet telecommunications data collection confirmed this summer by whistleblower Edward Snowden.

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WATCH THE VIDEO HERE: https://rally.stopwatching.us/

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The video, “Stop Watching Us: The Video,” is a call to action released in support of the Stop Watching Us: Rally Against Mass Surveillance being held in Washington, DC, on Saturday, Oct. 26, the 12th anniversary of the Patriot Act. Formed in June 2013, the StopWatching.us coalition is comprised of more than 100 public advocacy organizations and companies from across the political spectrum demanding that Congress investigate the full extent of the NSA's spying programs.

“I’m very honored to help EFF and StopWatching.us get out the word and make the rally in DC as big and as informed as possible,” Knappenberger said. “This is the moment for a large scale debate on the future of this thing we all love, the Internet, the way we communicate, our relationship with our government and how technology and its progress can blend with more traditional notions of privacy, liberty and democracy.”

A diverse cast of media, academic, political and legal figures and truth-speakers unite in the video to sound the alarm over unconstitutional government surveillance. The full list, in order of appearance, includes: 

  • Daniel Ellsberg, “Pentagon Papers” whistleblower
  • Phil Donahue, television talk-show pioneer
  • US Rep. John Conyers Jr., (D-MI), ranking Democrat on the House Judiciary Committee
  • David Segal, executive director of Demand Progress
  • Maggie Gyllenhaal, actor and activist
  • Oliver Stone, director of The Untold History of the United States and Nixon
  • John Cusack, actor and activist
  • Wil Wheaton, actor and writer
  • Molly Crabapple, artist and writer
  • Jesselyn Radack, U.S. Department of Justice whistleblower and national security and human rights director at the Government Accountability Project
  • J. Kirk Wiebe, NSA whistleblower
  • Mark Klein, AT&T whistleblower who revealed the telecommunications company’s collaboration with the NSA in collecting customer data
  • Thomas Drake, NSA whistleblower
  • Cindy Cohn, Legal Director at the Electronic Frontier Foundation
  • Dan Choi, LGBTQ activist and Iraq War veteran
  • Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law School

Thomas Drake and Daniel Choi will also speak at the rally, which begins with a march from Columbus Circle to the Capitol Reflecting Pool at 12 p.m. EST on Saturday, Oct. 26. StopWatching.us will also deliver more than 500,000 signatures opposing the NSA’s mass surveillance to Congress. The coalition is calling for a full Congressional investigation of America’s surveillance programs, reform to federal surveillance law, and accountability from officials responsible for hiding this surveillance from lawmakers and the public.

For more information on the full list of organizations involved in the coalition and the joint letter sent to Congress, please visit: https://stopwatching.us/.

More information about the rally is available here: https://rally.stopwatching.us.

To speak to a StopWatching.us spokesperson about the video, please contact Christina DiPasquale at 202.716.1953 or Christina@fitzgibbonmedia.com.

Related Issues:
October 16, 2013

Massive Crowdsourcing Effort Leads to Strong Petition Before the USPTO

San Francisco - The Electronic Frontier Foundation (EFF) today filed a formal challenge to the so-called "podcasting patent" used by a patent troll to shake down podcasters big and small for licensing fees. The petition for inter partes review, presented today to the US Patent and Trademark Office (USPTO), is the first legal filing in EFF's "Save Podcasting" campaign launched in May.

In January 2013, Personal Audio, LLC, began suing a number of podcasters, including comedian Adam Carolla (The Adam Carolla Show) and three major television networks, claiming they infringe U.S. Patent No. 8,112,504. In addition to filing these lawsuits, Personal Audio has sent demand letters to a variety of podcasters demanding that they pay a license fee. Because Personal Audio's business model is entirely based on leveraging its patents and it does not do any podcasting itself, the company fits the definition of a "non-practicing entity," or—as everyone from EFF to the White House calls these entities—a "patent troll."

"As we show in our petition, Personal Audio is not the true inventor of this technology and should not be demanding a payout from today's podcasters," EFF Staff Attorney Daniel Nazer said. "If you look into the history of podcasting, you won't see anything about Personal Audio."

Today's petition shows that Personal Audio did not invent anything new, and, in fact, other people were podcasting years before Personal Audio first applied for a patent. In preparation for this filing, EFF solicited help from the public to find prior art, or earlier examples of podcasting. In the petition, EFF cites three examples: Internet Pioneer Carl Malamud's "Geek of the Week" online radio show and online broadcasts by CNN and the Canadian Broadcasting Corporation (CBC).

Members of the public donated $76,160 to fund this campaign, an amount more than double what EFF originally requested when it launched its "Save Podcasting" fundraiser in May. EFF partnered with attorneys working pro bono and the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society to craft the petition. The donated funds will be used to pay the fees and costs associated with the petition, which are primarily Patent Office filing fees. Any funds remaining after the fees are paid will go towards EFF's ongoing patent reform work.

"Bad patents like this one slow down innovation—exactly the opposite of what the patent system was intended to do," said EFF Senior Staff Attorney Julie Samuels, the Mark Cuban Chair to Eliminate Stupid Patents. "We are thrilled to challenge this bad patent and make the world safer for creators and podcasters."

EFF's "Patent Busting Project" is part of a larger effort to defend innovation through both legal and legislative means.

For the petition:
https://www.eff.org/document/podcasting-petition-inter-partes-review

For Personal Audio's U.S. Patent No. 8,112,504
http://www.google.com/patents/US8112504

Contacts:

Daniel Nazer
Staff Attorney
Electronic Frontier Foundation
daniel@eff.org

Julie Samuels
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
julie@eff.org

October 10, 2013

Citing Concerns Over NSA’s Impact on Corporate Members, EFF Leaves Industry Group

San Francisco - The Electronic Frontier Foundation (EFF) today withdrew from the Global Network Initiative (GNI), citing a fundamental breakdown in confidence that the group's corporate members are able to speak freely about their own internal privacy and security systems in the wake of the National Security Agency (NSA) surveillance revelations.

EFF has been a civil society member of the multi-stakeholder human rights group since GNI was founded in 2008 to advance freedom of expression and privacy in the global information and communication technologies sector. While much has been accomplished in these five years, EFF can no longer sign its name on joint statements knowing now that GNI's corporate members have been blocked from sharing crucial information about how the US government has meddled with these companies' security practices through programs such as PRISM and BULLRUN.

"We know that many within the industry do not like or approve of such government interference, and GNI has, in statements, made it clear that member companies want permission from the US government to engage in greater transparency," EFF's International Director Danny O'Brien and Director for International Freedom of Expression Jillian C. York write in a letter to GNI leadership. "However, until serious reforms of the US surveillance programs are in place, we no longer feel comfortable participating in the GNI process when we are not privy to the serious compromises GNI corporate members may be forced to make. Nor do we currently believe that audits of corporate practice, no matter how independent, will uncover the insecurities produced by the US government's—and potentially other governments'—behavior when operating clandestinely in the name of national security."

EFF's involvement with GNI included helping to define its founding principles over two years of negotiations; coordinating opposition to the United Kingdom's Communications Data Bill in 2011; releasing a paper addressing free-speech issues surrounding account deactivation and content removal; and collaborating with fellow members in internal international technical and policy analysis. However, EFF can no longer stand behind the credibility of what had been one of GNI's most significant achievements—third-party privacy and freedom of expression assessments of service providers, including Google, Microsoft and Yahoo.

Moving forward, EFF plans to continue to provide guidance to the GNI and engage companies directly, but as an external organization. EFF supports the other organizations and individuals that continue to work within the GNI for the free speech and privacy rights of users worldwide.

"Although EFF is taking a step back, GNI can still serve an important role as a collaborative project between human rights groups, companies, investors and academics," York said. "If the United States government truly supports international 'Internet freedom,' it would recognize the damage its policies are doing to weaken such efforts and the world's confidence in American companies."

For the text of the letter:

https://www.eff.org/document/gni-resignation-letter-0

Contacts:

Jillian York
Director for International Freedom of Expression
Electronic Frontier Foundation
jillian@eff.org

September 20, 2013

Privacy Advocates Call Upon UN Member States to End Mass Internet Spying Worldwide

Geneva - At the 24th Session of the United Nations Human Rights Council on Friday, six major privacy NGOs, including the Electronic Frontier Foundation (EFF), warned nations of the urgent need comply with international human rights law to protect their citizens from the dangers posed by mass digital surveillance.

The groups launched the "International Principles on the Application of Human Rights to Communications Surveillance" at a side event on privacy hosted by the governments of Austria, Germany, Hungary, Liechtenstein, Norway, and Switzerland. The text is available in 30 languages at http://necessaryandproportionate.org.

"Governments around the world are waking up to the risks unrestrained digital surveillance pose to free societies," EFF International Rights Director Katitza Rodriguez said during the official presentation of the principles. "Privacy is a human right and needs to be protected as fiercely as all other rights. States need to restore the application of human rights to communications surveillance."

The document was the product of a year-long negotiation process between Privacy International, the Electronic Frontier Foundation, Access, Human Rights Watch, Reporters Without Borders, and the Association for Progressive Communications. The document spells out how existing human rights law applies to modern digital surveillance and gives lawmakers and observers a benchmark for measuring states' surveillance practices against long-established human rights standards. The principles have now been endorsed by over 260 organizations from 77 countries, from Somalia to Sweden.

Included in the 13 principles are tenets such as:

Necessity: State surveillance must be limited to that which is necessary to achieve a legitimate aim.

Proportionality: Communications surveillance should be regarded as a highly intrusive act and weighed against the harm that would be caused to the individual's rights.

Transparency: States must be transparent about the use and scope of communications surveillance. Public Oversight: States need independent oversight mechanisms.

Integrity of Communications and Systems: Because compromising security for state purposes always compromises security more generally, states must not compel ISPs or hardware and software vendors to include backdoors or other spying capabilities.

EFF and its co-signers will use the principles to advocate at national, regional and international levels for a change in how present surveillance laws are interpreted and new laws are crafted, including urging the United States government to re-engineer its domestic surveillance program to comply with international human rights law.

The event, "How to Safeguard the Right to Privacy in the Digital Age," featured speakers including Navi Pillay, the United Nations High Commissioner for Human Rights--who highlighted the recent scandals over British and US surveillance programs in her introductory remarks to the Human Rights Council this week—and Frank La Rue, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. Earlier this year, LaRue released a report that details the widespread use of state surveillance of communications in several countries, stating that such surveillance severely undermines a citizenry's ability to enjoy private lives, freely express themselves and exercise their other fundamental human rights.

"Member states of the Human Rights Council should assess their surveillance laws and bring them into compliance with the 13 benchmarks," Rodriguez says. "We must put an end to unchecked, suspicionless, mass spying online."

Contacts:

Katitza Rodriguez
   International Rights Director
   Electronic Frontier Foundation
   katitza@eff.org

September 10, 2013

National Lawyers Guild, Patient Privacy Rights and The Shalom Center Among 22 Groups Asserting Right to Free Association

San Francisco - Five new groups—including civil-rights lawyers, medical-privacy advocates and Jewish social-justice activists—have joined a lawsuit filed by the Electronic Frontier Foundation (EFF) against the National Security Agency (NSA) over the unconstitutional collection of bulk telephone call records. With today's amended complaint, EFF now represents 22 entities in alleging that government surveillance under Section 215 of the Patriot Act violates Americans' First Amendment right to freedom of association.

The five entities joining the First Unitarian Church of Los Angeles v. NSA lawsuit before the U.S. District Court for the Northern District of California are: Acorn Active Media, the Charity and Security Network, the National Lawyers Guild, Patient Privacy Rights and The Shalom Center. They join an already diverse coalition of groups representing interests including gun rights, environmentalism, drug-policy reform, human rights, open-source technology, media reform and religious freedom.

"The First Amendment guarantees the freedom to associate and express political views as a group," EFF legal director Cindy Cohn said. "The NSA undermines that right when it collects, without any particular target, the phone records of innocent Americans and the organizations in which they participate. In order to advocate effectively, these organizations must have the ability to protect the privacy of their employees and members."

In June, The Guardian newspaper published a secret order from the Foreign Intelligence Surveillance Court (FISC) that authorized the wholesale collection of phone records of all Verizon customers, including the numbers involved in each call, the time and duration of the call, and "other identifying information." Government officials subsequently confirmed the document's authenticity and acknowledged the order was just one of a series issued on a rolling basis since at least 2006.

EFF originally filed the lawsuit on June 16, arguing the tracking program allows the government to compile detailed connections between people and organizations that have no correlation to national security investigations. Along with adding the new plaintiffs, the amended complaint also adds new information about "contact chaining" searches through the vast trove of phone records, adds James B. Comey as a defendant now that he is the head of the FBI, and makes some additional changes.

For Rabbi Arthur Waskow of The Shalom Center, the revelations come with a sense of déjà vu.

"Jewish tradition for at least the last 2,000 years has celebrated the right of privacy of the people against surveillance by a ruler," Waskow said. "A generation ago, I joined with other antiwar activists to successfully sue the FBI over its 'COINTELPRO' program, which violated our right to assemble in opposition to the Vietnam War. Now, as director of The Shalom Center—a religious organization advocating for peace, social justice and environmental sustainablility—I am concerned that the NSA has greatly surpassed the FBI in undermining our Constitutional rights."

The National Lawyers Guild, a public-interest legal association that has defended civil rights for more than 75 years, notes that surveillance has substantially impeded its ability to communicate with those seeking legal assistance.

"Applied on a massive scale, government surveillance becomes a form of oppression," the Guild's Executive Director Heidi Boghosian said. "Knowing that we are likely monitored, we have curbed our electronic interactions. Sensitive discussions about cases are confined to in-person meetings and letters. We have no illusions that our hotline for individuals visited by the FBI is private; we don't even ask for specific details for fear of government eavesdropping."

EFF also represents the plaintiffs in Jewel v. NSA, a class-action case filed on behalf of individuals in 2008 aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans. The Jewel case is set for a conference with the Court on September 27 in San Francisco.

For the amended complaint:
https://www.eff.org/document/first-unitarian-church-los-angeles-v-nsa-amended-complaint

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Rabbi Arthur Waskow
Director
The Shalom Center
awaskow@theshalomcenter.org

Related Issues:
September 4, 2013

Original Patriot Act Author Says Call-Data Collection Exceeds Congressional Intent

San Francisco - The Electronic Frontier Foundation (EFF) today filed a brief on behalf of Rep. Jim Sensenbrenner (R-WI), the author of the original USA PATRIOT Act, in a case brought by the American Civil Liberties Union (ACLU) against the National Security Agency (NSA). In the brief, Sensenbrenner argues that Congress never intended the Patriot Act to permit the NSA's collection of the records of every telephone call made to, from and within the United States. Sensenbrenner urges the court to deny the NSA's motion to dismiss and grant the ACLU's motion for a preliminary injunction, which would halt the program until the case is decided.

In early June, The Guardian published a classified document leaked by former NSA contractor Edward Snowden detailing how the agency is vacuuming up call data from the Verizon phone network under the auspices of Section 215 of the Patriot Act. Within days, the ACLU filed a lawsuit to defend Americans' rights to privacy, due process, and free speech. Meanwhile, a coalition of legislators—led by Sensenbrenner, who served as Chairman of the House Judiciary Committee when the Patriot Act passed—openly criticized the agency's practices as far exceeding the surveillance authority granted by Congress.

"I stand by the Patriot Act and support the specific targeting of terrorists by our government, but the proper balance has not been struck between civil rights and American security," said Sensenbrenner, who chaired the House Judiciary Committee during the Patriot Act debates. "A large, intrusive government-however benevolent it claims to be-is not immune from the simple truth that centralized power threatens liberty. Americans are increasingly wary that Washington is violating the privacy rights guaranteed to us by the Fourth Amendment."

In July, EFF filed a separate lawsuit against the NSA on behalf of 18 diverse organizations, including gun advocates, environmentalists and churches, arguing that Section 215 violates the First Amendment right to association. Today's brief in the ACLU case is another prong in EFF's robust strategy to end the collection of millions of innocent Americans' telecommunications data.

"Congress did not grant intelligence agencies unbounded record-collecting authority," EFF Senior Staff Attorney David Greene said. "The law was crafted to allow the NSA to obtain only records that were relevant to 'an authorized investigation.' The NSA admits that the vast majority of the records it collects bear no relation to terrorism. The program's limitless scope vastly exceeds what Congress intended."

For the full amicus brief:

https://www.eff.org/document/aclu-v-clapper-amicus-brief

Contacts:

David Greene
Senior Staff Attorney
Electronic Frontier Foundation
davidg@eff.org

Ben Miller
Communications Director
Rep. Jim Sensenbrenner (WI-05)
benmiller@mail.house.gov

Related Issues:
August 22, 2013

Legal Threats Dropped in Battle Over Term to Describe Gay Gamers

San Francisco - In a big win for gay gamers around the world, a blogger has surrendered his bogus trademark claim on the word 'gaymer,' freeing online forums, conventions, and others to use the descriptive term without fear of legal threats and interference.

The Electronic Frontier Foundation (EFF) and the law firm Perkins Coie represented a group of Reddit gaymers – members of the lesbian, gay, bisexual, and transgendered community who have an active interest in videogames – after their long-running Reddit forum called r/gaymers was the target of a cease-and-desist letter complaining about their use of the term. It turns out blogger Chris Vizzini, who started a website called gaymer.org in 2006, had registered a trademark on 'gaymer' even though it had been in widespread use long before Vizzini started his website. With the help of EFF and Perkins Coie, the Reddit gamers asked the U.S. Patent and Trademark Office (USPTO) to cancel the trademark in January of this year. Vizzini ultimately decided to surrender the mark, which was officially revoked this week.

"Gaymer is a term that everyone can use – including Vizzini – and we're pleased that there is no legal question about that now," said EFF Intellectual Property Director Corynne McSherry. "But the real tragedy is that this term was ever registered for a trademark in the first place. You shouldn't have to go through a big legal battle to use a word you've used for years. The PTO must get more vigilant about the trademarks it allows to be registered in order to protect everyone's free speech rights."

"Trademark is supposed to protect consumers from confusion, not to shut down discussion spaces and the names they have rallied around," said Zack Karlsson, the r/gaymer community's representative in the trademark challenge. "We were shocked that anyone would try to assert ownership rights in 'gaymer' and felt the term belonged to the public, not Mr. Vizzini."

"We are thrilled with this result," said Judy Jennison, lead counsel for Perkins Coie. "It's been a privilege to work with EFF and Zack to clean up the registry and support an open discussion."

Cancellation from USPTO:
https://www.eff.org/document/cancellation

For more on this case:
https://www.eff.org/cases/petition-cancel-gaymer-trademark

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

August 22, 2013

EFF Sues Liberation Music for Forcing Harvard Professor’s Video Off YouTube

San Francisco - The Electronic Frontier Foundation (EFF) today filed suit against an Australian record company for misusing copyright law to remove a lecture by Harvard Law School professor Lawrence Lessig from YouTube. With co-counsel Jones Day, EFF is asking a federal judge in Massachusetts to rule that the video is lawful fair use, to stop Liberation Music from making further legal threats, and to award damages.

"The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them," Lessig said. "I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight."

A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.

Copyright law allows for the fair use of works for purposes such as criticism, comment, teaching, and scholarship. Professor Lessig's use of the "Lisztomania" clips in his lecture was a classic example of fair use and was not copyright infringement.

Earlier this year, Liberation Music, which claims to own the license to the Phoenix song, began the process to block the video through YouTube's copyright infringement system. After the company submitted a DMCA takedown notice, Lessig filed a counter-notice that asserted the clips were fair use. After Liberation Music threatened to sue Lessig, he retracted the notice. But Lessig did not concede this issue. Instead, he enlisted EFF's help to take Liberation Music to court.

"There's a long and sorry history of content owners abusing copyright to take down fair uses, but this one is particularly shocking," said EFF Intellectual Property Director Corynne McSherry. "Based on nothing more than a few clips illustrating Internet creativity, Liberation Music took down an entire lecture by one of the leading experts in the world on copyright and fair use. This kind of abuse has to stop."

About Prof. Lessig:

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.

For the full complaint:

https://www.eff.org/document/lessig-v-liberation-music-complaint

For Liberation Music's email to Prof. Lessig:

https://www.eff.org/document/lessig-v-liberation-music-exhibit-b

Contacts:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Daniel Nazer
Staff Attorney
Electronic Frontier Foundation
daniel@eff.org

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August 21, 2013

EFF to Honor Aaron Swartz, James Love, and Glenn Greenwald and Laura Poitras Next Month in San Francisco Ceremony

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the distinguished winners of the 2013 Pioneer Awards: late digital rights activist Aaron Swartz, international access to knowledge advocate James Love, and Glenn Greenwald and Laura Poitras – the journalists behind the blockbuster stories detailing extensive spying by the U.S. National Security Agency (NSA).

The award ceremony will be held the evening of September 19 at the Lodge at the Regency Center in San Francisco. Renowned academic, author, and activist Professor Lawrence Lessig will be the keynote speaker.

Pioneer award winners Glenn Greenwald and Laura Poitras brought the world clear and credible news and analysis about the massive domestic surveillance programs currently conducted by the NSA – transforming leaked documents by whistleblower Edward Snowden into riveting narrative that everyone could understand. These blockbuster stories exposed a web of convoluted, invasive spying on phone call history, email connections, and other communications data, sparking outrage across the globe and unprecedented admissions by the U.S. government about the extent of the surveillance. Greenwald worked as a constitutional and civil rights litigator before turning to journalism. He was the first recipient of the I.F. Stone Award for Independent Journalism and won the 2010 Online Journalism Award. Poitras is a documentary filmmaker and has won a Peabody Award for her work, as well as a 2012 MacArthur Fellowship. She has also been nominated for both an Academy Award and an Emmy Award. Greenwald and Poitras are both founding board members of the Freedom of the Press Foundation, which supports and defends transparency journalism.

James Love is one of the leading champions in the international battle for access to knowledge, defending everyone's right to free speech, privacy, fair competition, and health across the globe for more than 20 years. As the director of Knowledge Ecology International (KEI), Love was instrumental in the adoption of a global intellectual property treaty for people with reading and visual disabilities this year. Love tirelessly fought strong resistance from the intellectual property rightsholder community, and the result enshrines fair use rights – in this case, the right to transform reading material into accessible formats – into an international treaty for the first time in history. Love has been a crucial defender of users' rights against trade agreements with restrictive copyright provisions like TPP and ACTA, and is also fighting against the content industry's efforts to expand new, copyright-like rights over content to broadcasters. Additionally, as a civil society leader in Washington, D.C., he advocates for open, transparent rulemaking.

Aaron Swartz's achievements and influence on the Internet and its activist community are profound, despite his untimely death at age 26 earlier this year. Swartz co-authored the RSS web feed format when he was 14 and was one of the early architects of Creative Commons. He was a developer of the Internet Archives' Open Library and one of the co-creators of the online news site Reddit. Swartz founded the online activism group Demand Progress, which was a critical part of the successful campaign blocking the SOPA and PIPA Internet censorship bills. Swartz was also a committed activist for the cause of open access to government and government-funded information. In 2011, Swartz was accused of downloading millions of academic articles from the online archive JSTOR, allegedly without "authorization" even though his access to JSTOR through MIT's open network was authorized by JSTOR's contract with MIT. He faced 13 felony counts of hacking and wire fraud, including some under the draconian Computer Fraud and Abuse Act (CFAA). After two years of fighting the charges, Swartz tragically took his own life this past January.

"Aaron was nominated for a Pioneer Award regularly over the years, and we always thought we'd have a long time to give it to him – he had done amazing work so far, and we knew that over time he would continue to contribute to building a better future for the Internet and digital rights," said EFF Legal Director Cindy Cohn. "All of EFF is heartbroken at his passing and that we didn't seize the opportunity to give Aaron this honor while he was still with us. But we'll do our best to celebrate his life and do justice to his giant body of work."

"What all of this year's Pioneer Award winners have in common is the desire to democratize the flow of information, and they have all made the world a better, fairer place through their tireless efforts," said EFF Executive Director Shari Steele. "We are so proud to be able to honor them and their extraordinary achievements at the ceremony on September 19th."

Tickets to the Pioneer Awards are $65 for EFF members and $75 for non-members. Also available are tickets to a special advance reception featuring past and present Pioneer Award winners, special guests, and keynoter Lawrence Lessig, who spent more than a decade leading the fight for intellectual property reform and now is part of the campaign to reform computer crime law in the wake of his friend Aaron Swartz's death.

Awarded every year since 1992, EFF's Pioneer Awards recognize the leaders who are extending freedom and innovation on the electronic frontier. Previous honorees include Tim Berners-Lee, the Tor Project, Limor "Ladyada" Fried, Linus Torvalds, and Tunisian blogging collective Nawaat, among many others. Sponsors of this year's Pioneer Awards include Automattic, Inc., Facebook, SaurikIT, JunkEmailFilter.com, JibJab, and Pinterest.

To buy tickets to this Pioneer Awards:
https://www.eff.org/awards/pioneer/2013/tickets

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

August 20, 2013

EFF, Fenwick & West, and Durie Tangri Team Up to Defend Right to Access and Share Safety Standards

San Francisco - In an ongoing effort to protect free speech and the right of the public to examine the rules and regulations that govern our society, the Electronic Frontier Foundation (EFF) today announced it will defend open-government advocate Carl Malamud and the organization he founded, Public.Resource.Org, against a copyright lawsuit filed by three standards development organizations. Fenwick & West LLP, Durie Tangri LLP, and David Halperin join EFF as co-counsel.

On August 3, the National Fire Protection Association, ASTM International and the American Society of Heating, Refrigerating and Air Conditioning Engineers filed a lawsuit with a federal court in Washington, D.C., alleging "massive copyright infringement" by Public.Resource.Org for publishing codes and standards that have been incorporated into law. EFF argues such standards must be treated as part of the public domain, and Public.Resource.Org has a constitutional right to ensure government accountability by making the documents publicly available.

"Standards organizations get huge benefits from having their standards adopted as mandatory by federal and state regulators," EFF Staff Attorney Mitch Stoltz said. "But those benefits don't include the right to control access to those laws."

This isn't the first time Public.Resource.Org has faced legal threats for its work. In Public.Resource.Org v. SMACNA, a standards development organization claimed that it held the copyright in federally mandated air-duct standards and that Malamud's site violated its copyright by publishing them online. EFF and co-counsel Fenwick & West and David Halperin stepped in to litigate the case, and SMACNA promptly backed down.

The stakes are even higher this time around. The standards in question are crucial to the public's interest in fire and electrical safety. Public access to such codes is important when, for example, there is an industrial accident or natural disaster, or when a homebuyer wants to double-check that a house was built to code. Public.Resource.Org publishes the codes in a user-friendly format for not only interested citizens, but reporters, researchers, and business owners.

"Private organizations shouldn't control who can read the law, or where and how they can access it," Stoltz said. "The law belongs to all of us."

With decades of experience as a transparency advocate and eight books under his belt, Malamud founded Public.Resource.Org in Sebastopol, CA, in 2007 and currently serves as the nonprofit's president. In recent years, the organization has focused on obtaining and publishing a variety of legal documents and court decisions to make the law and justice system more accessible to the public.

"Technical standards incorporated into law are some of the most important rules of our modern society," Malamud said. "In a democracy, the people must have the right to read, know, and speak about the laws by which we choose to govern ourselves."

Contact:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

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August 9, 2013

Court Blocks Enforcement of Dangerous New Jersey Law

Newark, NJ - A New Jersey federal district court judge granted motions for a preliminary injunction today, blocking the enforcement of a dangerous state law that would put online service providers at risk by, among other things, creating liability based on "indirect" publication of content by speech platforms.

The Electronic Frontier Foundation (EFF) argued for the injunction in court on behalf of the Internet Archive, as the statute conflicts directly with federal law and threatens service providers who enable third party speech online.

"The Constitution does not permit states to pass overbroad and vague statutes that threaten protected speech. The New Jersey statute created that threat and the court was right to block it," said EFF Senior Staff Attorney Matt Zimmerman. "Similarly, Section 230 of the Communications Decency Act prohibits the state from threatening to throw online providers in jail for what their users do and the statute violated that rule as well. We are grateful that the court recognized the importance of these bedrock principles to online libraries and other platforms that make the Internet the vital and robust tool it is today."

The New Jersey law at issue is an almost carbon-copy of a Washington state law successfully blocked by EFF and the Internet Archive last year. While aimed at combatting online ads for underage sex workers, it instead imposes stiff criminal penalties on ISPs, Internet cafes, and libraries that "indirectly" cause the publication or display of content that might contain even an "implicit" offer of a commercial sex act if the content includes an image of a minor. The penalties – up to 20 years in prison and steep fines – would put enormous pressure on service providers to block access to broad swaths of otherwise protected material in order to avoid the vague threat of prosecution.

"Within the past month, we've seen a coalition of state attorneys general ask Congress to gut CDA 230 to make way for harmful laws like New Jersey's," said Zimmerman. "This misguided proposal puts speech platforms at risk, which in turn threatens online speech itself. Law enforcement can and must pursue criminals vigorously, but attacking the platforms where people exercise their right to free speech is the wrong strategy."

Backpage.com separately filed suit against this law, represented by the law firm of Davis Wright Tremaine, who also joined today's argument.

For more on this case:
https://www.eff.org/cases/internet-archive-v-hoffman

Contact:

Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz@eff.org

July 31, 2013

Coalition Led by Electronic Frontier Foundation Crowdsources Demand Letters

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of organizations and law schools today launched the newest tool in the fight against patent trolls: Trolling Effects (trollingeffects.org). The online resource aims to unite and empower would-be victims of patent trolls through a crowdsourced database of demand letters and to serve as a clearinghouse of information on the troll epidemic.

"Patent trolls will no longer be able to hide under a cloak of legal darkness," EFF Activist Adi Kamdar said. "Trolling Effects will shine a light on companies that abuse the patent system to shake down innovators."

Patent trolls use the threat of expensive and lengthy patent litigation to extort settlements from innovators large and small. Because the majority of these threats never become lawsuits, most of the threatening letters never show up in public dockets.

In June, the White House joined calls from Congress for more transparency around demand letters. Trolling Effects aims to provide that transparency. The site will allow demand-letter recipients to post the documents online, find letters received by others, and research who is really behind the threats. The site also features comprehensive guides to the patent system and a blueprint for patent reform. Journalists, academics, and policy makers will find the site a one-stop resource for researching the patent system.

"Trolling Effects began with the idea that people need to come together to defeat patent trolls," said EFF Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "Innovators who previously would have had to face the troll threat alone can use this new collaborative tool to share information and intelligence."

Other members of the Trolling Effects coalition include: Application Developers Alliance, Ask Patents, Engelberg Center on Innovation Law & Policy at NYU School of Law, Engine Advocacy, Public Knowledge, PUBPAT, and the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law.

Trolling Effects is one of several ways EFF is combating the troll plague on the U.S. patent system. Currently, EFF is collecting information on legislative proposals as part of its Defend Innovation project and will publish a report later this year. EFF also recently launched an effort to challenge patents held by Personal Audio, a notorious patent troll that has been shaking down podcasters across the country.

"The tide is turning on patent trolls," said EFF Staff Attorney Daniel Nazer. "The more people learn about their business practices, the more pressure we're able to put on them. It's time to shut down this business model once and for all."

Contacts:

Adi Kamdar
Activist
Electronic Frontier Foundation
adi@eff.org

Julie Samuels
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
julie@eff.org

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July 31, 2013

100+ Organizations Sign Thirteen Principles to Protect Human Rights

San Francisco - More than 100 organizations from across the globe – including Privacy International, Access, and the Electronic Frontier Foundation (EFF) – are taking a stand against unchecked communications surveillance, calling for the governments around the world to follow international human rights law and curtail pervasive spying.

The coalition of groups have all signed the International Principles on the Application of Human Rights to Communication Surveillance – 13 basic principles that spell out how existing human rights law applies to modern digital surveillance. Written in response to the increasing number of government surveillance standards that focus on law enforcement and "national security" priorities instead of citizens' rights, the principles include advice on how surveillance laws should respect the law, due process, and include public oversight and transparency. Current debates over government surveillance are often limited by outmoded definitions of content versus metadata, or stored data versus data in transit. The principles released today concentrate on the core issue: how human rights protect all information that reveals private information about an individual's communications.

"It's time to restore human rights to their place at the very heart of the surveillance debate," said EFF International Director Danny O'Brien. "Widespread government spying on communications interferes with citizens' ability to enjoy a private life, and to freely express themselves – basic rights we all have. But the mass metadata collected in the U.S. surveillance program, for example, makes it extraordinarily easy for the government to track what groups we associate with and why we might contact them. These principles announced today represent a global consensus that modern surveillance has gone too far and must be restrained."

The organizations signing the principles come from more than 40 different countries. The principles will be used to advocate for a change in how present laws are interpreted, and new laws are crafted.

"International human rights law binds every country across the globe to a basic respect for freedom of expression and personal privacy," said EFF International Rights Director Katitza Rodriguez. "The pervasiveness of surveillance makes standing up for our digital rights more important than ever. And we need those rights to survive in a digital world, where any state can spy on us all, in more detail than ever before. We know that surveillance laws need to be transparent and proportionate, with judicial oversight, and that surveillance should only be used when absolutely necessary. Everything we've heard about the NSA programs indicate that they fall far outside these international human rights principles."

For the International Principles on the Application of Human Rights to Communications Surveillance:
https://necessaryandproportionate.org/

For more on how the principles were developed:
https://www.eff.org/deeplinks/2013/07/thirteen-principles-for-human-rights

Contacts:

Danny O'Brien
   International Outreach Coordinator
   Electronic Frontier Foundation
   danny@eff.org

For Spanish-language interviews:
   Katitza Rodriguez
   International Rights Director
   Electronic Frontier Foundation
   katitza@eff.org
  

July 16, 2013

Broad Coalition of Organizations Team Up for Freedom of Association Lawsuit

San Francisco - Nineteen organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency (NSA) today for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by the Electronic Frontier Foundation (EFF), a group with years of experience fighting illegal government surveillance in the courts.

"The First Amendment protects the freedom to associate and express political views as a group, but the NSA's mass, untargeted collection of Americans' phone records violates that right by giving the government a dramatically detailed picture into our associational ties," said EFF Legal Director Cindy Cohn. "Who we call, how often we call them, and how long we speak shows the government what groups we belong to or associate with, which political issues concern us, and our religious affiliation. Exposing this information – especially in a massive, untargeted way over a long period of time – violates the Constitution and the basic First Amendment tests that have been in place for over 50 years."

At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by last month's publication of an order from the Foreign Intelligence Surveillance Court (FISC). The Director of National Intelligence (DNI) further confirmed that this formerly secret document was legitimate, and part of a broader program to collect all major telecommunications customers' call histories. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other "identifying information" for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006.

"People who hold controversial views – whether it's about gun ownership policies, drug legalization, or immigration – often must express views as a group in order to act and advocate effectively," said Cohn. "But fear of individual exposure when participating in political debates over high-stakes issues can dissuade people from taking part. That's why the Supreme Court ruled in 1958 that membership lists of groups have strong First Amendment protection. Telephone records, especially complete records collected over many years, are even more invasive than membership lists, since they show casual or repeated inquiries as well as full membership."

"The First Unitarian Church of Los Angeles has a proud history of working for justice and protecting people in jeopardy for expressing their political views," said Rev. Rick Hoyt. "In the 1950s, we resisted the McCarthy hysteria and supported blacklisted Hollywood writers and actors, and we fought California's 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, we gave sanctuary to refugees from civil wars in Central America. The principles of our faith often require our church to take bold stands on controversial issues. We joined this lawsuit to stop the illegal surveillance of our members and the people we serve. Our church members and our neighbors who come to us for help should not fear that their participation in the church might have consequences for themselves or their families. This spying makes people afraid to belong to our church community."

In addition to the First Unitarian Church of Los Angeles, the full list of plaintiffs in this case includes the Bill of Rights Defense Committee, Calguns Foundation, Greenpeace, Human Rights Watch, People for the American Way, and TechFreedom.

EFF also represents the plaintiffs in Jewel v. NSA, a class action case filed on behalf of individuals in 2008 aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans. Last week, a federal court judge rejected the U.S. government's latest attempt to dismiss the case, allowing the allegations at the heart of the suit to move forward under the supervision of a public federal court.

For the full complaint in First Unitarian v. NSA:
https://www.eff.org/node/75009

Contacts:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Dave Maass
   Media Relations Coordinator
   Electronic Frontier Foundation
   press@eff.org

July 9, 2013

Air-Conditioning Group Agrees Not to Claim Copyright Ownership of a Public Law

In a victory for free speech and open government, the Sheet Metal and Air Conditioning Contractors Association (SMACNA) has conceded that it will no longer use trumped up copyright claims to try to stop Public.Resource.Org (Public Resource) from publishing safety standards that have been incorporated into law.  Thanks to a lawsuit filed by the Electronic Frontier Foundation (EFF), Public.Resource.Org is now free to continue its mission of improving public access to the laws that govern our daily lives. 

Public.Resource.Org is a non-profit organization that acquires and makes available online a wide variety of public documents such as fire safety codes, food safety standards, and other regulations that have been incorporated into U.S. and international laws.  Such documents are often difficult to access otherwise, meaning the public cannot read them, much less comment on them.

In January, SMACNA demanded that Public.Resource.Org take offline a federally mandated air-duct standard, claiming the posting violated SMACNA’s copyright in the standard.  Represented by EFF, Fenwick & West LLP, and David Halperin, Public Resource fought back and asked a federal court to declare that the standards became part of the public domain once they were incorporated into law.

After initially attempting to avoid responding to the lawsuit at all, SMACNA has now surrendered and agreed to publicly affirm that it will no longer claim copyright in the standards.

“Whether it’s the Constitution or a building code, the law is part of the public domain,” said EFF Intellectual Property Director Corynne McSherry.  “We’re glad SMACNA is abandoning its effort to undermine that essential principle.”

In today’s technical world, public-safety codes are some of the country’s most important laws.  Public access to such codes can be crucial when, for example, there is an industrial accident, a disaster such as Hurricane Katrina, or when a homebuyer simply wishes to independently consider whether her house was built to code standards.  Publishing the codes online, in a readily-accessible format, also makes it possible for reporters and other interested citizens to search, excerpt, compare, and copy them.

“It’s about time Standards Development Organizations recognized that if a technical standard has been incorporated into federal law, the public has a right to read it, speak it and copy it freely,” said Public.Resource.Org founder Carl Malamud.  “We hope SMACNA has finally learned that lesson.”

For the stipulation:
https://www.eff.org/document/smacna-stipulation-and-judgment

For more on Public.Resource.Org vs. SMACNA:
https://www.eff.org/cases/publicresourceorg-v-smacna

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

July 8, 2013

Rejects Government's State Secret Privilege Claims in Jewel v. NSA and Shubert v. Obama

San Francisco - A federal judge today rejected the U.S. government's latest attempt to dismiss the Electronic Frontier Foundation's (EFF's) long-running challenge to the government's illegal dragnet surveillance programs. Today's ruling means the allegations at the heart of the Jewel case move forward under the supervision of a public federal court.

"The court rightly found that the traditional legal system can determine the legality of the mass, dragnet surveillance of innocent Americans and rejected the government's invocation of the state secrets privilege to have the case dismissed," said Cindy Cohn, EFF's Legal Director. "Over the last month, we came face-to-face with new details of mass, untargeted collection of phone and Internet records, substantially confirmed by the Director of National Intelligence. Today's decision sets the stage for finally getting a ruling that can stop the dragnet surveillance and restore Americans' constitutional rights."

In the ruling, Judge Jeffrey White of the Northern District of California federal court agreed with EFF that the very subject matter of the lawsuit is not a state secret, and any properly classified details can be litigated under the procedures of the Foreign Intelligence Surveillance Act (FISA). As Judge White wrote in the decision, "Congress intended for FISA to displace the common law rules such as the state secrets privilege with regard to matter within FISA's purview." While the court allowed the constitutional questions to go forward, it also dismissed some of the statutory claims. A status conference is set for August 23.

EFF's Jewel case is joined in the litigation with another case, Shubert v. Obama.

"We are pleased that the court found that FISA overrides the state secrets privilege and look forward to addressing the substance of the illegal mass surveillance," said counsel for Shubert, Ilann Maazel of Emery Celli Brinckerhoff & Abady LLP. "The American people deserve their day in court."

Filed in 2008, Jewel v. NSA is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. The case is supported by declarations from three NSA whistleblowers along with a mountain of other evidence. The recent blockbuster revelations about the extent of the NSA spying on telecommunications and Internet activities also bolster EFF's case.

For the full decision:
https://www.eff.org/node/74895

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contacts:

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@eff.org

Kurt Opsahl
   Senior Staff Attorney
   Electronic Frontier Foundation
   kurt@eff.org

Lee Tien
   Senior Staff Attorney
   Electronic Frontier Foundation
   tien@eff.org

Related Issues:
July 1, 2013

EFF Asks Federal Appeals Court to Clear Researcher Who Revealed AT&T Security Flaw

San Francisco - A team of computer-crime legal experts on Monday filed an appeal of the federal felony conviction and lengthy prison sentence handed down to Andrew "Weev" Auernheimer, a computer researcher who revealed a massive security flaw in AT&T's website and was subsequently prosecuted under the Computer Fraud & Abuse Act (CFAA).

The Electronic Frontier Foundation (EFF) joined law professor Orin Kerr, Internet attorney and EFF fellow Marcia Hofmann, and Weev's trial lawyers Tor Ekeland and Mark Jaffe in filing the brief with the 3rd U.S. Circuit Court of Appeals. The appeal argues the government's flawed prosecution theory under the CFAA resulted in an improper conviction and prison sentence.

"The government set out to make an example of Auernheimer," EFF Staff Attorney Hanni Fakhoury said. "But the only message this sends to the security-research community is that if you discover a vulnerability, you could go to jail for sounding the alarm."

In 2010, Auernheimer's co-defendant Daniel Spitler discovered that AT&T had configured its servers to make the email addresses of iPad owners publicly available on the Internet. Spitler wrote a script and collected roughly 114,000 email addresses as a result of the security flaw. Auernheimer then distributed the list of email addresses to media organizations as proof of the vulnerability, ultimately forcing AT&T to acknowledge and fix the security problem.

"This case is about the freedom to surf the Internet," said Kerr, a professor at the George Washington University Law School. "Congress never intended to criminalize visiting a public website."

Nevertheless, federal prosecutors went after Auernheimer and Spitler, charging each with identity theft and conspiracy to violate the CFAA—the same law used against Internet activist Aaron Swartz, who committed suicide this year amidst a similarly heavy-handed federal prosecution. Spitler accepted a plea deal in June 2011, while Auernheimer unsuccessfully fought the charges in a trial. Auernheimer was convicted and sentenced to 41 months in prison in March.

"Auernheimer was aggressively prosecuted for an act that caused little harm and was intended to be—and ultimately was—in the public interest," Hofmann said. "The CFAA's vague language gives prosecutors great latitude to abuse their discretion and throw the book at people they simply don't like. That's as evident here as it was in the prosecution of Aaron Swartz."

Auernheimer is currently incarcerated in a Special Housing Unit at the Allenwood Federal Correctional Complex in White Deer, Penn.

"Anyone who cares about the free flow of information on the Internet should be concerned about this case," Ekeland said. "The government is criminalizing computer behavior that millions of Americans engage in every day. The government's reckless and myopic prosecution of Auernheimer for obtaining public information from a public website endangers that vital aspect of the Internet and our national economy, which depends on the free flow of information."

On June 20, Reps. Zoe Lofgren and Jim Sensenbrenner, and Sen. Ron Wyden introduced "Aaron's Law" in Congress, a bill that would reform the CFAA. One element of the legislation would reform the laws that were used to convict Auernheimer.

For the full opening brief for the appeal:
https://www.eff.org/cases/us-v-auernheimer

Contacts:

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

Marcia Hofmann
   Internet Lawyer and EFF Fellow
   Law Office of Marcia Hofmann
   marcia@marciahofmann.com

Tor Ekeland
   Tor Ekeland, P.C.
   tor@torekeland.com

June 27, 2013

Hearing Set for 10am Friday in Newark

Newark, NJ - The Internet Archive has filed a new legal challenge against a New Jersey state law that aims to make online service providers criminally liable for providing access to third parties' materials, conflicting directly with federal law and threatening the free flow of information on the Internet. A hearing on the Internet Archive's request for a preliminary injunction against the law is set for 10am Friday at the federal courthouse in Newark.

This is the second time that the Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to block enforcement of a law that's aimed at combatting online ads for underage sex workers but instead includes language that could put online libraries and other service providers at risk. The New Jersey statute is an almost carbon copy of a law successfully blocked by EFF and the Internet Archive last year.

"The Internet Archive strongly supports law enforcement efforts to combat child sex trafficking, but when lawmakers aren't careful, they can undermine the companies that foster the production and exchange of legitimate online content," said Digital Librarian Brewster Kahle, founder of the Internet Archive. "Our mission is to archive the World Wide Web and other digital materials for researchers, historians, and the general public. For us and others to do this work, we need laws whose effects fall only on lawbreakers so we can concentrate on the preservation of history."

The New Jersey law (section 12(b)(1) of the "Human Trafficking Prevention, Protection, and Treatment Act") could impose stiff penalties – up to 20 years in prison and steep fines – on ISPs, Internet cafes, and libraries that "indirectly" cause the publication, dissemination, or display of content that contains even an "implicit" offer of a commercial sex act if the content includes an image of a minor. Especially given the vagueness of the standard, service providers would feel enormous pressure to block access to broad swaths of otherwise protected material in order to minimize the risk of such harsh penalties.

The New Jersey law squarely conflicts with both the First Amendment and federal statute: Section 230 of the Communications Decency Act (CDA 230). The First Amendment bars vague criminal statutes because of the obvious risk of sweeping and improper application, as well as the resulting chilling effect on behalf of people subject to the law. Moreover, CDA 230 ensures that Internet intermediaries are protected from liability for what their users do and establishes clear national Internet policy to avoid a confusing patchwork of state laws.

"Section 230 of the Communications Decency Act requires states to direct their law enforcement efforts towards punishing criminals for their actions, not the providers of the online services that they use," said EFF Senior Staff Attorney Matt Zimmerman. "The Internet is the greatest tool for speech and communications ever invented, and it can be used for everything from inspirational to criminal purposes. However, targeting entities like the Internet Archive and other service providers for users' bad behavior is enormously shortsighted and puts at risk the socially beneficial content that their services facilitate. Congress got it right: online speech is best protected when the states leave providers alone."

"Free speech is threatened when states pass vague and draconian statutes like this one," said Frank Corrado, co-counsel with EFF on behalf of the Internet Archive in this case. "It's not enough to identify a serious problem like sex trafficking. To fight it, especially when speech is involved, the state has to be careful with its solution. The state of New Jersey clearly did not do that here."

Backpage.com, also a plaintiff in last year's successful court challenge to Washington's law, has separately filed suit asking the court to set aside the New Jersey statute.

For more on the New Jersey case, Internet Archive v. Hoffman
https://www.eff.org/cases/internet-archive-v-hoffman

For more on the Washington case, Internet Archive v. McKenna:
https://www.eff.org/cases/internetarchive-v-mckenna

Contact:

Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz@eff.org

June 27, 2013

Author and Critic Deepens EFF's Security Expertise as NSA Scandal Intensifies

San Francisco - The Electronic Frontier Foundation (EFF) is honored to announce the newest member of its Board of Directors: renowned security expert Bruce Schneier.

Schneier is widely acclaimed for his criticism and commentary on everything from network security to national security. His insight is particularly important as we learn more and more about the unconstitutional surveillance programs from the National Security Agency and the depth and breadth of data the NSA is collecting on the public.

"EFF is one of the leading organizations fighting the government's unconstitutional spying, marshaling legal and technological expertise to battle surveillance in the courtroom and in Congress," said Schneier. "I'm excited to work together with the board and the staff as we learn more about this spying and how we can shut it down."

Schneier's first bestseller, "Applied Cryptography," was described by Wired as "the book the National Security Agency wanted never to be published." He's written a number of other influential books – including "Secrets and Lies" and "Liars and Outliers" – which, along with his monthly newsletter "Crypto-Gram" and his "Schneier on Security" blog, have reached hundreds of thousands of people with candid and lucid analysis of security issues. Schneier has also testified to Congress about the long-range security threat of unchecked presidential power.

"Bruce is one of America's premiere technologists – the person both experts and the general public turn to when they need answers to tough security questions," said EFF Executive Director Shari Steele. "We are very proud to have him join our Board of Directors to help EFF meet the challenges of the years ahead."

In addition to Schneier, EFF's Board of Directors includes John Perry Barlow, Brian Behlendorf, John Buckman, Lorrie Cranor, David Farber, John Gilmore, Brewster Kahle, Pam Samuelson, Brad Templeton, and Jonathan Zittrain.

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

June 26, 2013

Big Win in the Patent Office Curtails Troll's Lawsuit Campaign

San Francisco - The Electronic Frontier Foundation (EFF) has throttled a notorious patent used to wrongfully demand payment from cities and other municipalities that use tracking systems to tell transit passengers if their buses and trains are on time.

The United States Patent and Trademark Office (USPTO) has drastically narrowed the patent owned by ArrivalStar after EFF filed a formal request to reexamine the patent's legitimacy with the help of the Samuelson Law, Technology, and Public Policy Clinic at Berkeley Law. The ArrivalStar patent had been used as the basis for dozens of lawsuits against entities like the state of California, the city of Cleveland, and the Illinois Commuter Rail.

"This is an important victory for municipalities across the country that were faced with a tough choice: fighting an expensive lawsuit, paying ArrivalStar's settlement demands, or abandoning a public service," said EFF Staff Attorney Julie Samuels, the Mark Cuban Chair to Eliminate Stupid Patents. "We're gratified the patent office recognized that you can't patent something as obvious, broad, and vague as 'tracking something and notifying customers about it.'"

ArrivalStar had claimed its patent was based on an invention from 1999 and argued that many transit-tracking systems – as well as some package-tracking services – were infringing. But EFF and the Samuelson Clinic were able to show that as far back as 1992, public technical reports described a "Smart Bus system" that used the same methods described in the ArrivalStar patent. In the patent office's ruling, all but two of the patent's claims were struck down, fundamentally undermining any future attempts from ArrivalStar to use this patent to sue over transit-tracking systems.

"The ArrivalStar patent is an example of the current chronic misuse of software patents," said Jason Schultz, EFF Fellow and Co-Director of the Samuelson Clinic. "When the patent office issues a bad patent, it gives patent trolls a dangerous weapon to use against both small and large businesses – and in the end, consumers get fewer choices and higher prices. Even though we were eventually able to disarm this threat, a lot of damage was done in the meantime, and there are still a lot of bad patents out there."

EFF is currently working to bust a dangerous patent that a Texas company is using to shake down podcasts and podcasters like How Stuff Works and Adam Carolla, in addition to smaller podcasters. You can learn more about EFF's efforts to fix America's patent system at https://defendinnovation.org.

For the full decision from the USPTO:
https://www.eff.org/document/arrivalstar-patent-decision-uspto

Contact:

Julie Samuels
   Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   julie@eff.org

Related Issues:
June 26, 2013

Lawsuit Seeks Transparency Before Implementation of a 'Bigger, Faster and Better' Biometrics System

San Francisco - As the FBI is rushing to build a "bigger, faster and better" biometrics database, it's also dragging its feet in releasing information related to the program's impact on the American public. In response, the Electronic Frontier Foundation (EFF) today filed a lawsuit to compel the FBI to produce records to satisfy three outstanding Freedom of Information Act requests that EFF submitted one year ago to shine light on the program and its face-recognition components.

Since early 2011, EFF has been closely following the FBI's work to build out its Next Generation Identification (NGI) biometrics database, which would replace and expand upon the Integrated Automated Fingerprint Identification System (IAFIS). The new program will include multiple biometric identifiers, such as iris scans, palm prints, face-recognition-ready photos, and voice data, and that information will be shared with other agencies at the local, state, federal and international levels. The face recognition component is set to launch in 2014.

"NGI will result in a massive expansion of government data collection for both criminal and noncriminal purposes," says EFF Staff Attorney Jennifer Lynch, who testified before the U.S. Senate on the privacy implications of facial recognition technology in July of last year. "Biometrics programs present critical threats to civil liberties and privacy. Face-recognition technology is among the most alarming new developments, because Americans cannot easily take precautions against the covert, remote, and mass capture of their images."

In the complaint filed with the U.S. District Court for the Northern District of California, EFF is asking a judge to enforce EFF's FOIA requests, which were sent to the FBI in June and July of last year. The information sought includes agreements and discussions between the FBI and various state agencies regarding the face-recognition program; records addressing the reliability of face-recognition technology; and documentation of the FBI's plan to merge civilian and criminal records in a single repository. EFF is also seeking disclosure of the total number of face-recognition capable records currently in the FBI's database, as well as the proposed number at deployment.

NGI will have an unprecedented impact on Americans' privacy interests, and yet the FBI has not updated its Privacy Impact Assessment since 2008, well before it built the system and signed agreements with several states for an early roll-out of the program.

"Before the federal government decides to expand its surveillance powers, there needs to be a public debate," Lynch says. "But there can be no public debate until the details of the program are presented to the public."

For the full complaint:
https://www.eff.org/node/74758

Contact:

Jennifer Lynch
   Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

Related Issues:
June 4, 2013

Lawsuit Fighting Reference Uses Could Damage Fair Use

San Francisco - The Electronic Frontier Foundation (EFF) urged an appeals court today to affirm that the fair use doctrine protects the creation of an invaluable digital library.

For the past eight years, major university libraries have collaborated with Google to digitize their collections. One result has been the HathiTrust Digital Library (HDL). Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections. With the exception of some patrons who have disabilities, HDL does not allow users to access the digitized books in their entirety – it merely does a keyword search and delivers titles and page numbers as results, enabling students and others to find the book at a library or to purchase a copy.

The Authors Guild sued HathiTrust and several universities over the service, claiming that the digitization that led to the creation of the database violates their members' copyrights. A federal court in New York correctly disagreed with the Authors Guild, ruling that digitizing the books in order to enhance research and enable access is a clear legal fair use of copyrighted material. The Authors Guild has now taken its claims to the Second U.S Circuit Court of Appeals. In an amicus brief filed today, EFF argues that accepting the Authors Guild's wrongheaded arguments could hurt fair use, innovation, and the public interest.

"Fair use is a critical part of copyright law – ensuring that copyright serves, rather than thwarts, innovation," said EFF Intellectual Property Director Corynne McSherry. "This library gives scholars and students an unparalleled ability to search and access knowledge and gives authors new audiences for their works. It's precisely the kind of project that the fair use doctrine was designed to protect."

In particular, EFF urged the appeals court to reject an argument raised in another amicus brief from the Associated Press (AP) arguing that fair use should only protect copies that are somehow "expressive" and limited to "non-commercial" uses. But this would drastically narrow the scope of fair use protection. In our digital age, copying is an integral and inescapable part of many valuable technologies.

"After all, email, web browsers, search engines, and DVRs all work by copying data to the memory of a device. If that's not fair use, then we've got a clumsy and expensive technological future coming up," said Staff Attorney Daniel Nazer. "If the Authors Guild and the AP get their way, copyright law would become a roadblock to many of the benefits it was designed to promote."

Public Knowledge and the Center for Democracy and Technology joined EFF in today's amicus brief. Rochelle Woods and Deepak Gupta from the law firm of Farella Braun and Martel LLP submitted the brief on behalf of the public interest groups.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-appeals-court

For more about Authors Guild v. Hathitrust:
https://www.eff.org/cases/authors-guild-v-hathitrust

Contacts:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Daniel Nazer
   Staff Attorney
   Electronic Frontier Foundation
   daniel@eff.org

May 30, 2013

Campaign Will Use Crowd-Power and New Law to Invalidate Patent Trolls’ Claim

San Francisco - The patent trolls have gone far enough: Starting today, the Electronic Frontier Foundation (EFF) is mounting a new, focused campaign to bust the dangerous patent that a Texas company has been using to shakedown podcasters. EFF intends to challenge the original grant of that patent before the U.S. Patent and Trademark Office by proving that the company, Personal Audio, did not really invent anything new.

Claiming it owns the patent that broadly covers podcasting technology, Personal Audio is the classic example of a patent troll that neither makes nor sells anything, but uses its patent as a weapon to threaten lawsuits and extort settlement fees. This particular troll has bullied prominent podcasts and podcasters, including How Stuff Works and Adam Carolla, in addition to smaller podcasters working out of their own homes.

"Patent trolls have been wreaking havoc on innovative companies for some time now," said EFF Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "But this particular breed of troll—targeting end users, small businesses, startups, and even individuals like podcasters for simply using everyday products—is a disturbing new threat."

EFF is partnering with the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society to use a new legal tool against this patent called the "inter partes review," which was introduced by the America Invents Act. The first step is to identify "prior art," or published examples of similar or identical ideas, that existed before October 2, 1996. EFF is putting out a call today to the podcasting community to spread the word and help us collect the prior art we need to fight this dangerous patent. EFF is also looking for financial support to take on this challenge, which—even with pro bono help—will likely cost nearly $30,000.

"A podcaster working out of a garage is unlikely to have the financial resources to fight a lawsuit," said EFF Staff Attorney Daniel Nazer. "Patent trolls like Personal Audio know this and use the threat of ruinous litigation costs as a weapon. Defeating this patent at the PTO would put an end to Personal Audio's campaign."

Because of the deep and systemic problems in the American patent system, EFF is spearheading the Defend Innovation project to advocate for reform. EFF is asking the public to sign on to our petition at defendinnovation.org and to comment on seven recommended proposals we think would make the broken system work better for software. In the meantime, EFF is doing its best to rid the world of one more bad patent in the hands of a patent troll and help out podcasters who find themselves staring down the barrel of a gun.

For more on the Save Podcasting campaign:

https://www.eff.org/deeplinks/2013/05/help-save-podcasting

For technical details of the search for prior art:

http://patents.stackexchange.com/questions/3884/call-for-prior-art-system-for-disseminating-media-content-representing-episodes

Donate to fund this campaign:

https://supporters.eff.org/donate/save-podcasting

Julie Samuels
   Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   julie@eff.org

Daniel Nazer
   Staff Attorney
   Electronic Frontier Foundation
   daniel@eff.org

May 30, 2013

Dozens of Industry Leaders Argue APIs That Are Open Are Critical to Innovation, Interoperability

San Francisco - Dozens of computer scientists urged an appeals court today to block the copyright claims over application programming interfaces (APIs) in the Oracle v. Google court battle, arguing that APIs that are open are critical to innovation and interoperability in computers and computer systems.

The Electronic Frontier Foundation (EFF) represents the 32 scientists – including leaders like MS-DOS author Tim Paterson and ARPANET developer Larry Roberts – in the amicus brief filed in the U.S. Court of Appeals for the Federal Circuit today. The group urges the court to uphold a decision from U.S. District Judge William Alsup finding that APIs are not copyrightable, explaining that Oracle's attempt to over-extend copyright coverage in its case against Google was irreconcilable with the purpose of copyright law and the nature of computer science.

"The law is already clear that computer languages are mediums of communication and aren't copyrightable. Even though copyright might cover what was creatively written in the language, it doesn't cover functions that must all be written in the same way," said EFF Staff Attorney Julie Samuels. "APIs are similarly functional – they are specifications allowing programs to communicate with each other. As Judge Alsup found, under the law APIs are simply not copyrightable material."

Furthermore, as the scientists explain in today's brief, the real-world ramifications of copyrighting APIs would be severe. All software developers use APIs to make their software work with other software. For example, your Web browser uses APIs to work with various computer operating systems so it can open files and display windows on the screen. If APIs are copyrightable, then developers can control who can make interoperable software, blocking competitors and creative new products.

"Without the compatibility enabled by APIs that are open, we would not have the vibrant computer and Internet environment we experience today, with new products and services routinely changing the way we see and interact with the world," said EFF Fellow Michael Barclay. "APIs that are open spur the development of software, creating programs that the interface's original creator might never have envisioned. We hope the appeals court rejects Oracle's appeal in this case to protect technological innovation."

For the full amicus brief:
https://www.eff.org/node/74381

For the full list of signatories:
https://www.eff.org/cases/oracle-v-google/amici

Contacts:

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

Michael Barclay
   Fellow
   Electronic Frontier Foundation
   michael@eff.org

May 29, 2013

Draft Proposal from W3C Could Stymie Web Innovation

San Francisco - Today the Electronic Frontier Foundation (EFF) filed a formal objection to the inclusion of digital rights management (DRM) in HTML5, arguing that a draft proposal from the World Wide Web Consortium (W3C) could stymie Web innovation and block access to content for people across the globe.

The W3C's HTML working group is creating a technical standard for HTML5, an upcoming revision to the computer language that creates webpages and otherwise displays content online. The working group has accepted a draft that includes discussion of Encrypted Media Extensions (EME), which will hard-wire the requirements of DRM vendors into the HTML standard.

"This proposal stands apart from all other aspects of HTML standardization: it defines a new 'black box' for the entertainment industry, fenced off from control by the browser and end-user," said EFF International Director Danny O'Brien. "While this plan might soothe Hollywood content providers who are scared of technological evolution, it could also create serious impediments to interoperability and access for all."

DRM standards look like normal technical standards but turn out to have quite different qualities. They fail to implement their stated intention – protecting media – while dragging in legal mandates that chill the speech of technologists, lock down technology, and violate property rights by seizing control of personal computers from their owners. Accepting EME could lead to other rightsholders demanding the same privileges as Hollywood, leading to a Web where images and pages cannot be saved or searched, ads cannot be blocked, and innovative new browsers cannot compete without explicit permission from big content companies.

EFF filed this objection as its first act as a full member of W3C. EFF's goal is to broaden the discussion of the consequences of accepting DRM-based proposals like EME for the future of the Web.

"The W3C needs to develop a policy regarding DRM and similar proposals, or risk having its own work and the future of the Web become buried in the demands of businesses that would rather it never existed in the first place," said EFF Senior Staff Technologist Seth Schoen. "The EME proposal needs to be seen for what it is: a creation that will shut out open source developers and competition, throw away interoperability, and lock in legacy business models. This is the opposite of the fair use model that gave birth to the Web."

For EFF's full Formal Objection:
https://www.eff.org/pages/drm/w3c-formal-objection-html-wg

For more on DRM in HTML5:
https://www.eff.org/deeplinks/2013/05/eff-joins-w3c-fight-drm

Contacts:

Danny O'Brien
   International Outreach Coordinator
   Electronic Frontier Foundation
   danny@eff.org

Seth Schoen
   Senior Staff Technologist
   Electronic Frontier Foundation
   seth@eff.org

May 14, 2013

EFF Urges Protection of Defendants in Case Linked to Notorious Prenda Law Firm

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged a federal appeals court today to stop a copyright troll's shakedown scheme in a case linked to the notorious Prenda Law firm.

The plaintiff in this case, AF Holdings, is seeking the identity of more than 1,000 Internet users that it claims are linked to the illegal downloading of a copyrighted pornographic film. Over the protest of the Internet service providers who received subpoenas for those identities, a lower court approved the disclosure of the names. The ISPs appealed, and today EFF filed a brief in support of that appeal. EFF is asking the U.S. District Court of Appeals for the District of Columbia Circuit to help keep the legal process fair and balanced by requiring AF Holdings to simply show that it has a good faith basis for going after these defendants.

The case is one of hundreds being pursued around the country that follow the same pattern: a copyright troll looks for IP addresses that allegedly downloaded adult films via BitTorrent, files a lawsuit against thousands of Does based on those IP addresses, seeks to subpoena the ISP for the contact information of the account holder associated with that IP address, and threatens to name the alleged infringer in a copyright lawsuit, right next to the embarrassing title of a pornographic film. The Doe is then offered a chance to settle before the lawsuit is filed, usually for a few thousand dollars. The key to the business model is flouting legal procedure by suing thousands of unrelated people—located all over the country—in a single lawsuit. For the price of a $400 filing fee and some stamps, the troll can extract thousands of dollars in settlements.

"Once AF Holdings gets the names it's looking for, then it already has what it needs to put its shakedown scheme in motion," said EFF Staff Attorney Mitch Stoltz. "For the defendants, it will come down to risking being named in a lawsuit over a pornographic movie, or settling for less than the cost of hiring an attorney. As a matter of law and basic fairness, AF Holdings needs to prove that its case is on solid ground before putting more than 1,000 of Internet users in that kind of bind."

AF Holdings is one of a number of holding companies linked to Prenda Law, a firm that is facing serious questions about its use of stolen identities and fictitious signatures on key legal documents, and making other false statements to the courts. Earlier this month, a federal judge issued sanctions of more than $81,000 against Prenda and its attorneys and referred the matter to federal prosecutors.

"We're glad that judges are catching on to this abuse of the court system," said EFF Intellectual Property Director Corynne McSherry. "But while the legal system tries to find answers about Prenda Law, AF Holdings, and other copyright trolls, it's important to remember that there are real people still being victimized by these unfair lawsuits in the meantime. We hope the appellate court will recognize that copyright owners have to follow the same rules as everyone else."

Also joining EFF's amicus brief are the American Civil Liberties Union (ACLU), the ACLU of the Nation's Capital, Public Citizen, and Public Knowledge.

For the full amicus brief:
https://www.eff.org/node/74213

Contacts:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

May 6, 2013

Los Angeles Police Department and County Sheriff’s Department Must Release Data Under California Public Records Act

San Francisco - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Southern California (ACLU-SC) today jointly filed suit against two Los Angeles-area law-enforcement agencies over their failure to produce records related to the use of automatic license plate readers (ALPRs).

Mounted on squad cars and telephone poles, these sophisticated camera systems read license plates and record the time, date, and location a particular car was encountered. EFF and the ACLU-SC filed requests with the Los Angeles Police Department and the Los Angeles County Sheriff's Department under the California Public Records Act seeking documents relating to policy and training on ALPRs, as well as a week's worth of ALPR data collected by the agencies in 2012. While the sheriff and police departments produced some materials, they failed to provide documents related to sharing information with other agencies, and neither agency has produced the data collected during the one-week period.

"Location-based information like license plate data can be very revealing," said EFF Staff Attorney Jennifer Lynch. "By matching your car to a particular time, date and location — and building a database of that information over time — law enforcement can learn where you work and live, what doctor you go to, which religious services you attend, and who your friends are. The public needs access to data the police actually have collected to be able to make informed decisions about how ALPR systems can and can't be used."

ALPRs can record up to 14,000 plates during a single shift. According to a June 2012 story in LA Weekly, the sheriff and police departments conduct, on average, approximately 22 scans for every one of the 7 million vehicles registered in Los Angeles County. As of June, the departments reportedly logged more than 160 million data points. While the police can use this technology to match license plates against databases to find stolen or wanted cars, the systems currently record and store information on every car, even where there's no reason to think a car is connected to any crime.

"Police can and should treat location information from ALPRs like other sensitive information. They should retain it no longer than necessary to determine if it might be relevant to a crime and get a warrant if they need to keep it any longer," ACLU-SC Senior Staff Attorney Peter Bibring says. "They should limit who can access it, who they can share it with and create an oversight system to make sure the limits are followed."

The complaint was filed in Los Angeles County Superior Court. EFF and the ACLU have asked a judge to issue a writ directing the agencies to hand over all requested records and award appropriate legal fees.

For the full complaint:

http://www.eff.org/document/aclu-sd-and-eff-v-lapd-and-lasd

Contacts:

Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org

Peter Bibring
Senior Staff Attorney
ACLU of Southern California
pbibring@aclu-sc.org

April 30, 2013

Annual Report Recognizes Service Providers' Commitment to Users in the Face of Government Data Demands

San Francisco - As you search the Internet, visit websites, and update your social media accounts, you entrust a wealth of data to service providers: your thoughts, your photos, your location, and much more. What happens when the government wants access to all of this information, held by companies like Google and Facebook and AT&T? Will these providers help you fight back against unfair demands for data about your private life?

Today the Electronic Frontier Foundation (EFF) releases its third annual report, "Who Has Your Back?," which looks at major technology service providers' commitment to users' rights in the face of government data demands. EFF's report examines 18 companies' terms of service, privacy policies, advocacy, and courtroom track records, awarding up to six gold stars for best practices in categories like "require a warrant for content," "tell users about government data demands," and "publish transparency reports."

"Transparency reports have become an industry standard practice among major technology companies since we started issuing this report in 2011," said EFF Senior Staff Attorney Marcia Hofmann. "Through those reports, we've learned more about law enforcement requests for user data. We publish this annual report to encourage companies to let users know how data flows to the government, and to encourage companies to stand up for their users."

EFF's report shows that more and more Internet companies are formally promising to give users notice about law enforcement requests for information unless prohibited by law or court order. We also found a dramatic increase in the number of companies publishing law enforcement guidelines for making data requests. This year, two companies—Twitter and Sonic.net—received a full six stars, while Verizon earned no stars.

"There's a lot to celebrate in this report, but also plenty of room for improvement," said EFF Staff Attorney Nate Cardozo. "Service providers hold huge amounts of our personal data, and the government shouldn't be able to fish around in this information without good reason and a court making sure there's no abuse. This report should be a wake-up call to Internet users that they need more protection from the companies they trust with their digital communications."

For the full report "Who Has Your Back?":
https://www.eff.org/who-has-your-back-2013

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

Update: The original version of this press release said that Myspace did not receive any stars.  However, since the publication of our original report, a representative from the company has notified us about previously published law enforcement guidelines and a court case in which Myspace fought for the rights of its users. Because those guidelines and court filings are publicly available, and because the guidelines make clear that Myspace requires a warrant for the content of communications, we have amended our report to give Myspace the three relevant stars.

Related Issues:
April 24, 2013

EFF Outlines Five Ways the FAA Can Protect the Public and Ensure Transparency

San Francisco - The Federal Aviation Administration's (FAA's) proposed privacy requirements for domestic drone test sites are not robust enough to protect the public, the Electronic Frontier Foundation (EFF) argues in its official comments filed with the agency this week. EFF Staff Attorney Jennifer Lynch outlines five key recommendations to safeguard privacy and civil liberties while allowing unmanned-aerial-system operators to explore the potentials of the emerging technology.

"When it comes to drones, the FAA needs to examine privacy issues with the same rigor it applies to flight and mechanical safety," said Lynch, who has filed two successful lawsuits against the federal government over drone-related Freedom of Information Act requests. "Just as vague safety regulations for drones could result in damage to life or property, vague privacy measures could harm civil liberties."

President Barack Obama signed the FAA Modernization and Reform Act last year, which included a requirement that the agency start the process of integrating drones into the National Airspace system through a test-site program. The FAA plans to authorize six separate test sites for drones in the U.S. Mindful of the growing public interest in the civil-liberties implications of domestic aerial surveillance, the FAA recently released proposed privacy requirements for operators of these sites. However, the FAA's proposal falls short of truly protecting privacy for members of the general public who may be caught by the drones' surveillance cameras during test flights.

In the comments submitted today, EFF says:

1. The FAA should develop a model privacy policy and provide it to test-site operators.

2. Test-site operators should be required to report the surveillance and data-capturing capabilities of each drone.

3. Test-site operators should measure the surveillance capabilities and limits for each drone.

4. The FAA should not limit its privacy-protecting regulations to the test-site program but should extend them across its entire drone authorization process.

5. The public must have meaningful access to the wealth of drone data collected by the FAA.

"We're looking for specificity and transparency," Lynch said. "Testing sites should not only disclose what data they plan to collect, but what kind of data these drones are capable of collecting. And the public should have access to that information."

For the full comments submitted to the FAA:
https://www.eff.org/document/effs-comments-faa

For more information about EFF's work on drones:
https://www.eff.org/foia/faa-drone-authorizations

Contact:

Jennifer Lynch
   Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

Related Issues:
April 9, 2013

EFF Fights for Cell Phone Privacy in Washington State

San Francisco - The Electronic Frontier Foundation (EFF) urged the Washington State Supreme Court Monday to recognize that text messages are "the 21st Century phone call" and require that law enforcement officers obtain a warrant before reading texts on someone's phone.

"Text messages are a ubiquitous form of communication, and their context can be as private as any telephone conversation," said EFF Staff Attorney Hanni Fakhoury. "We use texts to talk to our wives and husbands, our kids, our co-workers, and more. Police should not be able to sift through these personal exchanges on a whim – they must show probable cause and get a warrant before accessing this information."

In this case, police seized a cell phone during a drug investigation and monitored incoming messages. Officers responded to several texts, setting up meetings that resulted in two arrests, without first getting a warrant. Prosecutors have argued that no warrant was required because there should be no expectation of privacy in text messages, as anyone can pick up someone else's phone and read what's stored there. But in two related amicus briefs filed Monday, EFF argues that searching the phone for the texts without a warrant clearly violates the Constitution.

"The state argues that just because someone can intercept a communication, you should reasonably expect that communication to be intercepted. That's a dangerous way to interpret the Fourth Amendment," said Fakhoury. "The prosecutors' theory would eviscerate any privacy protections in the digital age. We're asking the Washington State Supreme Court here to recognize what's at stake and to require a warrant before allowing officers to read text messages on a cell phone."

Venkat Balasubramani of FOCAL PLLC in Seattle, Washington, served as EFF's local counsel in the cases.

For the full amicus briefs:
https://www.eff.org/cases/washington-state-text-message-privacy-cases

Contacts:

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

Related Issues:
March 25, 2013

EFF Urges Appeals Court to Protect the Rights of TV Innovators

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court Friday to protect the rights of start-up innovators working to improve TV viewing and other entertainment experiences, arguing that big content companies should not be allowed to block add-on technology with baseless copyright claims.

At issue in the 9th U.S. Circuit Court of Appeals is whether TV networks can shut down a TV streaming service called Aereokiller, which sends over-the-air television signals to users' personal computing devices. The networks claim that Aereokiller violates copyright by retransmitting their signals. In the amicus brief filed Friday, EFF asks the court to look to recent court rulings that have blocked TV networks' various attempts to quash new products and constrict viewers' rights.

"Many of the services that Hollywood is trying to shut down are simply conceptually moving the antenna that used to be on your roof to their roof," said EFF Staff Attorney Mitch Stoltz. "TV viewers have a right to choose when and how they watch free TV – and courts have recognized that. Networks can't block consumer choices just because they didn't think of it first and want a cut of the profits from someone else's idea."

EFF's brief argues that without consistent rulings supporting TV viewers' legal and customary rights, start-up innovators and others won't enter the market.

"This isn't just about the products and services that are being developed today," said Stoltz. "It's about what innovators could come up with tomorrow, if they aren't discouraged by TV networks trying to claim copyright infringement when it just doesn't apply. We're asking the court here to prevent Hollywood from twisting the law at the expense of viewers' customary rights."

For the full brief in this case:
https://www.eff.org/document/amicus-brief-17

Contact:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

March 20, 2013

SB 467 Requires Law Enforcement to Obtain a Warrant Before Seizing Private Electronic Communications

Sacramento - Senator Mark Leno today announced the introduction of groundbreaking new legislation that protects email privacy. Senate Bill 467, sponsored by the Electronic Frontier Foundation (EFF), requires state law enforcement agencies to obtain a warrant before asking service providers to hand over a private citizen's emails.

"No law enforcement agency could obtain someone's mail or letters that were delivered to their home without first securing a search warrant, but that same protection is surprisingly not extended to our digital life," said Senator Leno, D-San Francisco. "Both state and federal privacy laws have failed to keep up with the modern electronic age, and government agencies are frequently able to access sensitive and personal information, including email, without adequate oversight. SB 467 repairs the existing holes in California's digital protection laws, ensuring that electronic communications can only be accessed by law enforcement with a warrant."

EFF has long been concerned with law enforcement claims that investigators do not need a search warrant to obtain any email that has been opened or has been stored on a server for 180 days. The U.S. Department of Justice's Office of Legal Policy recently announced it would support changes to federal law that would require a warrant in such cases. While this is a step in the right direction, updated state laws are still needed in order to protect consumers and the email services they use.

"California, the home of many technology companies, should be a leader in protecting the privacy of people's electronic communications," said EFF Staff Attorney Hanni Fakhoury. "Many of the state's technology companies have already indicated that they require a search warrant before disclosing the contents of communications. With SB 467, the warrant requirement becomes the status quo for all electronic communication providers and all law enforcement agencies across the state. We're happy to work with Senator Leno in ensuring our privacy protections keep up with the rapid changes in technology."

The bill is also supported by the ACLU of California.

"Californians shouldn't have to choose between using modern technology and protecting their privacy," said Nicole Ozer, Technology & Civil Liberties Policy Director of the ACLU of California. "SB 467 would ensure that content stored in the cloud receives the same level of protection as content stored on a laptop or in a desk drawer."

Contacts:

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

Ali Bay
   Office of Senator Mark Leno
   ali.bay@sen.ca.gov

Related Issues:
March 18, 2013

Hacker Who Revealed Security Flaw in AT&T Servers Sentenced to 3.5 Years in Prison

San Francisco - Andrew "Weev" Auernheimer today was sentenced to 41 months in federal prison for revealing to media outlets that AT&T had configured its servers to allow the harvesting of iPad owners' unsecured email addresses. The Electronic Frontier Foundation (EFF) is joining Auernheimer's legal team to litigate his appeal before the Third Circuit Court of Appeals, arguing that fundamental problems with computer crime law result in unfair prison sentences like the one in this case.

In 2010, Auernheimer's co-defendant Daniel Spitler discovered that AT&T deliberately configured its servers so that when they were queried with a number that matched an iPad's SIM card identifier, AT&T would reveal the email address of the iPad's owner. Spitler wrote a script that used the security hole to collect roughly 120,000 email addresses. Then Auernheimer sent a list of the email addresses to several journalists to spotlight the security problem. AT&T subsequently fixed the vulnerability.

The government charged Spitler and Auernheimer with conspiracy to violate the federal Computer Fraud and Abuse Act (CFAA) and identity theft law. Spitler reached a plea deal with the government in June 2011. In November, Auernheimer was convicted of two felonies after Spitler testified against him.

"Weev is facing more than three years in prison because he pointed out that a company failed to protect its users' data, even though his actions didn't harm anyone," EFF Senior Staff Attorney Marcia Hofmann said. "The punishments for computer crimes are seriously off-kilter, and Congress needs to fix them."

EFF has long criticized the CFAA for its vague language, broad sweep, and heavy penalties. Since the tragic death of programmer and Internet activist Aaron Swartz in January, EFF has redoubled its efforts to reform the law.

"Weev's case shows just how problematic the Computer Fraud and Abuse Act is," EFF Staff Attorney Hanni Fakhoury said. "We look forward to reversing the trial court's decision on appeal. In the meantime, Congress should amend the CFAA to make sure we don't have more Aaron Swartzs and Andrew Auernheimers in the future."

Other attorneys on Auernheimer's appellate team are Tor Ekeland and Mark H. Jaffe of Tor Ekeland P.C., Nace Naumoski, and Professor Orin Kerr of the George Washington University Law School.

For more on this case:
https://www.eff.org/cases/us-v-auernheimer

Contacts:

Marcia Hofmann
   Senior Staff Attorney
   Electronic Frontier Foundation
   marcia@eff.org

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

March 15, 2013

Court Finds NSL Statutes Violate First Amendment and Separation of Powers

San Francisco - A federal district court judge in San Francisco has ruled that National Security Letter (NSL) provisions in federal law violate the Constitution. The decision came in a lawsuit challenging a NSL on behalf of an unnamed telecommunications company represented by the Electronic Frontier Foundation (EFF).

In the ruling publicly released today, Judge Susan Illston ordered that the Federal Bureau of Investigation (FBI) stop issuing NSLs and cease enforcing the gag provision in this or any other case. The landmark ruling is stayed for 90 days to allow the government to appeal.

"We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," said EFF Senior Staff Attorney Matt Zimmerman. "The government's gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience."

EFF's NSL legal team. From left: Mark Rumold, Kurt Opsahl, Cindy Cohn, Matt Zimmerman and Nate Cardozo.

The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters -- on its own authority and without court approval -- to telecommunications companies demanding information about their customers. The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.

In today's ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional. In addressing the concerns of the service provider, the court noted: "Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate."

"The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power," said EFF Legal Director Cindy Cohn. "The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security."

EFF first brought this challenge on behalf of its client in May of 2011.

For the full order:
https://www.eff.org/document/nsl-ruling-march-14-2013

For more on this case:
https://www.eff.org/cases/re-matter-2011-national-security-letter

Contacts:

Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz@eff.org

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@eff.org

Kurt Opsahl
   Senior Staff Attorney
   Electronic Frontier Foundation
   kurt@eff.org

Related Issues:
March 12, 2013

EFF continues to chronicle harm in “Unintended Consequences” white paper

San Francisco - Fifteen years after Congress passed the Digital Millennium Copyright Act, and just as legislators and the public are debating the law's dangerous impact on consumers who want to unlock their cell phones, the evidence of much broader negative effects continues to mount. In its latest update to the comprehensive white paper, "Unintended Consequences: Fifteen Years Under the DMCA," the Electronic Frontier Foundation (EFF) catalogs how content owners have misused the DMCA to threaten fair use, free speech, research, competition and innovation.

EFF's research highlights how the DMCA's prohibition on "circumventing" digital rights management (DRM) and "other technical protection measures" has been used to intimidate scientists and inventors and stifle fair uses, harming both business and consumer interests. The latest update to the chronicle of DMCA overreach includes new case studies, including several that illustrate how the law impacts engineers working with video-game consoles.

"It is great to see the new awareness of the issues with cell phone unlocking, but phones are just the tip of the iceberg of problems the DMCA has created," EFF Intellectual Property Director Corynne McSherry said. "It kills aftermarkets, interferes with legitimate research, and squelches creativity in new media."

Highlights:

• In 2010, Sony sued a group of researchers, including hacker George Hotz (a.k.a. Geohot), who had helped expose security flaws in the Playstation 3 that would enable users to run Linux on their machines again — something Sony previously supported but then tried to prevent.

• In 2011, Sony threatened the Norway-based website Gitorious.org, an online collaborative space for the open-source community, when its users initiated projects involving the Playstation 3 console. Citing a lack of resources to fight Sony, Gitorious not only removed the projects, but it also blocked search requests for "playstation," "sony " and "ps3."

• In 2011, Activision threatened hacker Brandon Wilson when he published research on the workings of a scanning device that was part of one of the company's video games. Activision's claim that Wilson's research would allow users to unlock game content without purchase was unwarranted, but it nevertheless succeeded in pressuring Wilson to remove his research from his blog and to abandon his work on the project.

"Section 1201 has done a lot more harm than good," McSherry said. "It's long past time to fix it, or, even better, get rid of it altogether." Outraged users can go to http://fixthedmca.org/ to find out how they can help.

The white paper is available here as a pdf.

Contacts:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Related Issues:
March 11, 2013

Prenda Law Firm attempts to silence critics DieTrollDie and FightCopyrightTrolls

San Francisco - The Electronic Frontier Foundation (EFF) is joining with attorney Charles Lee Mudd Jr. to represent two blogs caught up in a bizarre lawsuit filed by Paul Duffy and Prenda Law LLC, Duffy's copyright troll law firm.

Copyright trolls try to make money by suing Internet users under various copyright laws. Their tactics include targeting large groups of anonymous "John Doe" defendants for downloading files on BitTorrent, seeking their identities, and exploiting the massive damages in copyright law in order to pressure defendants into settling quickly.

Duffy and his firm's tactics are frequent subjects of criticism on FightCopyrightTrolls (fightcopyrighttrolls.com) and DieTrollDie (dietrolldie.com), two watchdog blogs maintained by anonymous authors.

Late last month, Duffy and Prenda Law filed two separate defamation lawsuits in Illinois state court, which have since been removed to federal courts in the Northern and Southern districts of Illinois. The complaints claim the bloggers and their commenters defamed Duffy and his firm, despite the free speech protections guaranteed by the First Amendment.

"These lawsuits are a blatant attempt to abuse the legal process to punish critics," said EFF Staff Attorney Mitch Stoltz.

Immediately after filing the suits, Duffy served a subpoena on Automattic Inc., the company that owns the Wordpress blogging platform. The subpoena seeks the IP addresses of everyone who ever visited the two websites, threatening the privacy of the bloggers and their readers. On Friday, Automattic rejected the subpoena in a letter to Duffy, calling it "legally deficient and objectionable" and a violation of the First Amendment right to speak anonymously.

"Not only is the subpoena improper under the First Amendment, it fails to comply with the simple rules for pre-trial discovery," EFF Staff Attorney Nate Cardozo added.

Automattic has stated unequivocally that it will not turn over any information until the bloggers' challenge to the lawsuit has played out in court. In order to protect this right to anonymity, EFF and the Mudd Law Office will not publicly release the names of their clients in this suit.

"Critics of the copyright troll business model have the right to speak anonymously without their identities being exposed to the trolls," said Kurt Opsahl, EFF Senior Staff Attorney. "These sweeping subpoenas create a chilling effect among those who have spoken out against Prenda."

Notorious copyright troll John Steele previously filed a similar lawsuit against the two blogs but dropped the suit last week without explanation.

Contacts:

Kurt Opsahl
   Senior Staff Attorney
   Electronic Frontier Foundation
   kurt@eff.org

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Related Issues:
February 27, 2013

EFF and High-Tech Innovators Demand Hearings on SHIELD Act

Washington, D.C. - A coalition of entrepreneurs, investors, and innovators have joined the Electronic Frontier Foundation (EFF) and Engine Advocacy today in requesting that Congress schedule hearings on patent trolls and the SHIELD Act, introduced in the U.S. House of Representatives to quash the rash of patent lawsuit abuse.

In an open letter to the House Committee on the Judiciary, the coalition—including investor Mark Cuban and Reddit co-founder Alexis Ohanian—explains how patent trolls are chilling innovation, which in turn stifles job growth in the expanding tech sector. Researchers estimate that the U.S. economy took at least a $29 billion hit in 2011 due to patent trolls, which make no products but instead assert patents as their sole business model.

"We have a shameful situation in this country, with patents and patent litigation hurting both competition and innovation. That's bad for both consumers and small businesses," said Cuban. "The time for Congress to act is now."

The letter expresses the coalition's support for the SHIELD (Saving High-Tech Innovators from Egregious Legal Disputes) Act, a bipartisan bill from Rep. Peter DeFazio and Rep. Jason Chaffetz that would create real and appropriate consequences for patent lawsuit abuse. Under the Act, if a patent troll loses in court because the patent is found to be invalid or there is no infringement, then the troll pays the other side's legal costs, which often reach into the millions of dollars.

"It's time to force these trolls to take responsibility for the damage they cause with their bogus claims," said Julie Samuels, EFF Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents. "The introduction of the SHIELD Act sends an important message to patent trolls: their business model is dangerous and their days are numbered."

In addition to Cuban and Ohanian, managing directors of prominent venture capital firms the Foundry Group and Union Square Ventures also signed the letter. They're joined by David Cohen, founder and CEO of Techstars, as well as Paul Sieminski, general counsel to Auttomatic, which is the company behind the popular blogging platform Wordpress, among other signers.

For the full open letter:
https://www.eff.org/document/open-letter-shield-act

Contacts:

Julie Samuels
   Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   julie@eff.org

Rebecca Jeschke
   Media Relations Director and Digital Rights Analyst
   Electronic Frontier Foundation
   press@eff.org

Related Issues:
February 22, 2013

Wrongheaded Copyright Claim Blocks Online Posting of Important Technical Standards

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal judge today to protect the free speech rights of an online archive of laws and legal standards after a wrongheaded copyright claim forced the removal of a document detailing important technical standards required by the federal government and several states.

EFF and co-counsel David Halperin represent Public.Resource.Org, Inc., a non-profit organization that improves the public's access to laws and codes that affect their lives. As part of its work, Public Resource acquires and makes available public safety documents such as fire safety codes, food safety standards, and other regulations that have been incorporated into U.S. and international laws. But last month, the association of Sheet Metal and Air Conditioning Contractors (SMACNA) claimed an online post of a federally-mandated 1985 standard on air-duct leakage violated its copyright and demanded the post be removed. The standards are a crucial element of U.S. federal energy conservation efforts and an integral part of model codes, such as the International Energy Conservation Code. After a threat of legal action from SMACNA, Public Resource took down the document until a court could affirm its right to publish the information.

"The public has a right to meaningful access to the laws that govern their lives," said Carl Malamud, the president and founder of Public Resource. "Technical standards like the ones in this document have the force of law, and people need to know them in order to comply with regulatory obligations, keep the public safe, and avoid costly penalties. The right of citizens to read and speak the law is fundamental to an informed citizenry in the United States and throughout the world. Ignorance of the law is no excuse, which means we have to be able to read the law."

In a petition for declaratory and injunctive relief filed today, EFF and Public Resource asked the court to rule that posting the standards does not infringe any copyright.

"Building codes and other technical specifications touch our lives every day, and Public Resource is helping to make it easier for us to access and understand how they affect us," said EFF Intellectual Property Director Corynne McSherry. "We're asking the judge today to let Public Resource continue its important work in increasing the public's access to the laws and regulations that govern us."

For the full petition:
https://www.eff.org/node/73298

Contacts:

Carl Malamud
   President and Founder
   Public Resource
   carl@media.org

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz@eff.org

February 21, 2013

Longtime Internet Activist to Focus on Global Issues

San Francisco - Digital-rights activist Danny O'Brien is back at the Electronic Frontier Foundation (EFF), rejoining the organization as its new International Director.

O'Brien will head up global strategy at EFF at a time when digital rights and freedoms are under attack across the globe. O'Brien said he's seen the effects of many of EFF's traditional concerns in privacy, free speech, and innovation play out around the world – from Internet kill switches and targeted malware aimed at vulnerable users, to privacy-invasive biometric tracking, to damaging international treaties that quash free expression.

"The last few years have been incredibly transformative for international digital rights. They've gone from theoretical threats to practical realities," O'Brien said. "The policy issues EFF works on are becoming day-to-day issues for everyone around the world."

O'Brien has a particular interest in the rights of Internet users in repressive regimes, where governments are using the rise of trackable mobile devices and a filtered Internet to control their citizens, not empower them.

"What I really don't want to happen is for people to look back at this time as the 'Golden Age' of Internet freedom because in the future we failed to stand up against a new world of threats to civil liberties," he said.

O'Brien has spent the last three years defending at-risk online reporters as the Internet advocacy coordinator at the Committee to Protect Journalists. From 2005 to 2007, O'Brien served as an EFF activist before becoming the organization's international outreach coordinator, a position he held until 2009. He is also a co-founder of the Open Rights Group, which advocates for digital civil liberties in his native Britain.

"Protecting digital rights is a global effort in our interconnected world," said EFF Executive Director Shari Steele. "We are so pleased that Danny has brought his wealth of talent and experience back to EFF to help with this important work."

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Related Issues:
February 11, 2013

EFF Urges Strict Rules to Protect Drivers’ Data

San Francisco - The Electronic Frontier Foundation (EFF) urged the National Highway Traffic Safety Administration (NHTSA) today to include strict privacy protections for data collected by vehicle "black boxes" to protect drivers from long-term tracking as well as the misuse of their information.

Black boxes, more formally called event data recorders (EDRs), can serve a valuable forensic function for accident investigations, because they can capture information like vehicle speed before the crash, whether the brake was activated, whether the seat belt was buckled, and whether the airbag deployed. NHTSA is proposing the mandatory inclusion of black boxes in all new cars and light trucks sold in America. But while the proposed rules would require the collection of data in at least the last few seconds before a crash, they don't block the long-term monitoring of driver behavior or the ongoing capture of much more private information like audio, video, or vehicle location.

"The NHTSA's proposed rules fail to address driver privacy in any meaningful way," said EFF Staff Attorney Nate Cardozo. "These regulations must include more than minimum requirements of what should be collected and stored – they need a reasonable maximum requirement as well."

The current NHTSA proposal mandates a boilerplate notice to consumers that "various systems" are being monitored. The plan also calls for a commercial tool to be made available to allow user access to black box data. In its comments submitted to the NHTSA today, EFF calls for complete and comprehensive disclosure of data collection as well as a free and open standard to access black box information.

"The information collected by EDRs is private and must remain private until the car owner consents to its use," said Cardozo. "Consumers deserve full disclosure of what is being collected, when, and how, as well as an easy and free way of accessing this data on their own. Having to buy access to your own data is not reasonable. "

In addition to submitting its own comments to the NHTSA today, EFF also joined the Electronic Privacy Information Center and a broad coalition of privacy, consumer rights, and civil rights organizations in comments urging the NHTSA to adopt specific, privacy-protecting amendments to its proposed rules.

For EFF's full comments submitted to the NHTSA:
https://www.eff.org/document/effs-comments-nhtsa-about-black-boxes-cars

Contact:

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

Related Issues:
February 4, 2013

Law Enforcement Should Not Gather Genetic Information Without a Warrant

San Francisco - The Electronic Frontier Foundation (EFF) urged the Supreme Court Friday to block DNA collection from everyone arrested for a crime, arguing that law enforcement must get a warrant before forcing people to give samples of their genetic material.

EFF's amicus brief was filed Friday in Maryland v. King – a case challenging a law in the state of Maryland that requires DNA collection from all arrestees, whether they are ultimately convicted of a crime or not. Maryland officials claim that DNA is necessary for definitive identification, but they do not use the sample to "identify" the arrestee. Instead, they use the sample for other investigatory purposes – retaining and repeatedly accessing the wealth of personal information disclosed by an individual's genetic material despite lacking individualized suspicion connecting the arrestee to another crime. This violates the Fourth Amendment.

"Your DNA is the roadmap to an extraordinary amount of private information about you and your family," said EFF Staff Attorney Jennifer Lynch. "It contains data on your current health, your potential for disease, and your family background. For government access to personal information this sensitive, the Fourth Amendment requires a warrant."

In addition to Maryland, 27 states and the federal government have laws that mandate DNA collection from anyone arrested, even if they are not yet convicted of a crime. EFF has filed amicus briefs in a number of cases challenging these unconstitutional laws. Meanwhile, the Supreme Court has shown increasing sensitivity to the power of sophisticated technology to undermine traditional privacy protections.

"Let's say you were picked up by police at a political protest and arrested, but then released and never convicted of a crime. Under these laws, your genetic material is held in a law enforcement database, often indefinitely," said EFF Senior Staff Attorney Lee Tien. "This is an unconstitutional search and seizure."

The Supreme Court is set to hear arguments in Maryland v. King later this month.

For the full brief in Maryland v. King:
https://www.eff.org/document/amicus-brief-16

Contacts:

Jennifer Lynch    Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

Lee Tien    Senior Staff Attorney
   Electronic Frontier Foundation
   tien@eff.org

January 23, 2013

EFF and Perkins Coie File Petition to Cancel Registration of 'Gaymer' Trademark

San Francisco - A group of Reddit "gaymers" are fighting to protect the name of their online forum after a website operator managed to register the term as a trademark and then claimed the group's Reddit forum infringed his trademark rights. In a petition filed with the U.S. Patent and Trademark Office (USPTO) today, the group asks the USPTO to cancel the "gaymer" trademark registration so that people around the world can continue to use the word without interference.

The Electronic Frontier Foundation (EFF) and the law firm Perkins Coie represent the Reddit gaymers – members of the lesbian, gay, bisexual, and transgendered community who have an active interest in video games. The group was spurred into action after blogger Chris Vizzini – who registered the trademark after creating a website targeting the gaymer community at gaymer.org – sent a cease-and-desist letter complaining about the long-running subreddit group called r/gaymers.

"This registration should never have been granted," said EFF Intellectual Property Director Corynne McSherry. "Gaymer is a common term that refers to members of this vibrant gaming community, and we are happy to help them fight back and make sure the term goes back to the public domain where it belongs."

As today's petition notes, the term "gaymer" had been in widespread use for years before Vizzini applied for a trademark. In fact, there's even a GaymerCon conference.

"Trademarks have one primary purpose: to protect consumers from confusion about the source of goods or services," said EFF Staff Attorney Julie Samuels. "This registration isn't being used to protect consumers – it's being used to threaten free speech."

For the full petition to cancel:
https://www.eff.org/document/petition

For more from r/gaymers:
http://www.reddit.com/r/gaymers/comments/174ooy/update_rgaymers_is_fighting_back_the_trademark/

Contacts:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

January 22, 2013

When Law Enforcement Tracks Cars, Both Passengers and Drivers Deserve Privacy Protections

San Francisco - The Electronic Frontier Foundation (EFF) urged the high court of Massachusetts today to protect the rights of passengers in cars that law enforcement are tracking with GPS surveillance technology, arguing that both the driver and the passenger of a car have legal standing to challenge the collection of sensitive location data gathered by the GPS devices.

In Commonwealth v. Rousseau, police obtained a search warrant to install a GPS device on a car owned by a suspect in a number of arsons throughout the state. Ultimately, the owner of the car and his frequent passenger – Rousseau – were charged with a number of crimes, but both moved to challenge the search warrant. They argued that the police had made material misrepresentations in obtaining the search warrant, and as a result the GPS evidence should be excluded from the trial.

Although the trial court agreed that police had misrepresented the facts in order to get the search warrant, it upheld it anyway. Additionally, the court found that Rousseau had no legal ability – or standing – to challenge the GPS evidence because he was merely a passenger. But in an amicus brief filed today, EFF argues that critical privacy questions affect everyone who is traveling in a tracked vehicle, and they should all have the opportunity to protect themselves and their location data, whether they are a driver or passenger in the car.

"Location data communicates a huge amount of personal information to law enforcement," said EFF Staff Attorney Hanni Fakhoury. "Where you go throughout the day could point to your religious affiliation, who your family and friends are, your medical conditions, and your political leanings. It's only fair that everyone who is caught up in this extraordinarily invasive surveillance has the right to contest its gathering and use, particularly when that evidence is used by the state to try and throw someone into jail for decades."

Police are increasingly employing persistent locational tracking – through GPS, cell phone records, or other, more aggressive tools like cell tower dumps and "stingrays" – as part of routine criminal investigations. As this kind of evidence-gathering becomes more widespread, it's important to ensure that individuals who are targets of the data-collection dragnet have the legal right to challenge whether the surveillance has been done properly.

"The idea that you lose your right to challenge the use of invasive technology designed to track your location simply because you were in the passenger seat of a car rather than the driver's seat is ludicrous," said Fakhoury. "Giving police this sort of windfall based solely on which car seat a person is in ignores the reality that everyone has an expectation of privacy in their movements, and it only encourages police to aggressively gather a digital dossier of someone's movements. Proper court oversight is necessary to protect the Fourth Amendment, and that's all we're asking for here."

Thanks to Kit Walsh at the Cyberlaw Clinic at Harvard Law School's Berkman Center for Internet and Society for assistance with writing and filing the brief.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-15

Related Issues:
January 18, 2013

AP Argues for Dangerously Narrow View of Fair Use in Battle Over News-Tracking Service

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge today to protect fair use of news coverage and reject the Associated Press' (AP's) dangerously narrow view of what is "transformative" in a copyright court battle over a news-tracking service.

In Associated Press v. Meltwater, AP claims its copyrights are infringed when Meltwater, an electronic news clipping service, includes excerpts of AP stories in search results for its clients seeking reports of news coverage based on particular keywords. In its argument, AP asks the court to accept an extraordinarily narrow view of fair use – the doctrine that allows for the use of copyrighted material for purposes of commentary, criticism, or other transformative uses – by claiming that Meltwater's use of copyrighted excerpts cannot be "transformative" fair use unless they are also "expressive." In an amicus brief filed today, EFF argues that AP's theory would restrict the use and development of services that allow users to find, organize, and share public information.

"There are lots of examples of important fair uses that wouldn't fit under AP's cramped definition of a 'transformative' use," said EFF Senior Staff Attorney Kurt Opsahl. "Time-shifting – like what you do when you record something on your DVR to watch later – isn't 'expressive,' but courts have found it a clear fair use. Because fair use plays such an essential role in facilitating online innovation and expression, we're asking the court to follow the law and reject this flawed theory from AP."

The Stanford Fair Use Project served as counsel for EFF in filing today's brief, which was also joined by Public Knowledge.

For the full amicus brief:
https://www.eff.org/document/amicus-brief-14

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

December 19, 2012

New Funds Dedicated to Protecting Innovation and Reforming Software Patents

San Francisco - America's broken patent system needs major reform to protect innovators and the public. Today, the Electronic Frontier Foundation (EFF) is announcing a major new boost to its patent work: a half-million dollars in funding from entrepreneur Mark Cuban and game developer Markus "Notch" Persson.

"The current state of patents and patent litigation in this country is shameful," said Cuban, owner of the Dallas Mavericks. "Silly patent lawsuits force prices to go up while competition and innovation suffer. That's bad for consumers and bad for business. It's time to fix our broken system, and EFF can help. So that's why part of my donation funds a new title for EFF Staff Attorney Julie Samuels: 'The Mark Cuban Chair to Eliminate Stupid Patents'."

Cuban's $250,000 donation also funds the hire of a new attorney experienced in patent reform and high profile patent litigation: Daniel Nazer, who will join EFF in January as a Staff Attorney. The rest of EFF's seasoned intellectual property team includes Intellectual Property Director Corynne McSherry, Senior Staff Attorney Kurt Opsahl, and Staff Attorney Mitch Stoltz. The team is also assisted by EFF fellows Michael Barclay and Jason Schultz.

Persson's separate donation of $250,000 cements EFF's ability to tackle the systemic problems with software patents. With a blend of lawyers, technologists, and activists, EFF will push for reform in the courts, through activism campaigns, and by educating the public and politicians about what is wrong with software patents and what needs to change.

"Temporary fixes aren't good enough – we need deep and meaningful reform to protect software development and keep it as free and democratic as possible," said Persson, creator of the popular videogame Minecraft. "New games and other technological tools come from improving on old things and making them better – an iterative process that the current patent environment could shut down entirely. This is a dangerous path we're on, and I'm glad to help EFF move us in the right direction."

EFF's Defend Innovation project is already at the forefront of patent reform. Defend Innovation promotes seven fixes for America's patent system, including shortening the term for software patents, allowing winning parties in litigation to recover fees and costs, and protecting inventors who independently arrive at a patented idea. Defend Innovation joins EFF's other longstanding work in the patent space, such as its Patent Busting Project and its involvement in patent litigation.

"Patent controversies dominated technology news this year, and now more than ever, it's clear that something needs to change," said EFF Executive Director Shari Steele. "We are so honored that these two inventors came to us separately with their contributions and their confidence, and we're excited about fixing software patents."

For EFF's Defend Innovation project:
https://defendinnovation.org/

Contact:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Related Issues:
December 7, 2012

Federal Circuit Revisiting Troubling Ruling That Helps Foster Increased Patent Litigation

San Francisco - The Electronic Frontier Foundation (EFF) urged the full Federal Circuit today to throw out the dangerous patents it previously held valid in CLS Bank v. Alice Corp, arguing that the court's earlier decision goes against the law and helps foster the recent dramatic increase in patent litigation. In the amicus brief filed today, EFF proposes that the court require patent owners to claim what they actually invent and nothing more.

"The Patent Act doesn't protect abstract ideas because it would lead to harmful monopolies on simple ideas, like ways of running a business or cooking a meal," said Staff Attorney Julie Samuels. "Yet we're still routinely seeing patents issued based on abstract ideas, and having those patents upheld in some courts. In an environment like this, it should be no surprise that company after company decides to buy a lottery ticket in the guise of a dubious software patent and see if it can hit the jackpot. The Federal Circuit has a chance to help curb this new rash of patent lawsuits."

The patents in CLS Bank cover a computer system that helps with closing financial transactions by avoiding settlement risk. A lower court found this invention so abstract to be unpatentable. But this spring, the Federal Circuit disagreed on appeal, finding that implementation of the invention on a computer system made it non-abstract. The Federal Circuit finding goes against a Supreme Court ruling that adding conventional steps – like implementing something on a computer – does not alone make an abstract idea patentable.

"Patent lawsuits are very common, straining businesses large and small, and acting as a tax on innovation," said EFF Fellow Michael Barclay. "These lawsuits are fueled by dangerous and contradictory rulings from the Federal Circuit on what constitutes a patentable invention. We're asking the court to implement a sensible system, limiting patent owners to what they actually invented, instead of all-too-common broad and vague claims that make no sense and give no guidance to innovators."

Public Knowledge joined EFF in this amicus brief.

For the full brief in CLS Bank v. Alice Corp:
https://www.eff.org/node/72780

Contacts:

Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation
   julie@eff.org

Michael Barclay
   Fellow
   Electronic Frontier Foundation
   michael@eff.org

Related Issues:
December 6, 2012

Statute Threatened Operation of Online Libraries and Other Services

San Francisco - Today, Washington state officials announced that they have dropped their defense of a law aimed at combatting online sex trafficking ads by targeting Internet service providers, conceding that the statute was unconstitutional and violated federal law. After a challenge by the Internet Archive and Backpage.com, a permanent injunction barring enforcement of the law will officially go into effect when the federal district court approves the stipulations and proposed orders filed today.

The Electronic Frontier Foundation (EFF) and co-counsel Venkat Balasubramani represented the Internet Archive in the federal lawsuit that struck down SB 6251, a law passed by the Washington legislature in 2012 despite its obvious potential to curtail legitimate speech. For example, the vague and overbroad statute threatened to impose felony liability not only on those directly engaged in illegal acts but also on those who "indirectly" caused to be "disseminated" any "implicit" offers for commercial sex acts. That could potentially affect services that merely provide access to information, like web hosts, ISPs, or online libraries, impeding their ability to operate. Moreover, the statute directly conflicted with Section 230 of the Communications Decency Act (CDA 230), a federal law that bars states from holding online service providers responsible for the acts of their users.

"Threatening to throw service providers in jail for what their users say or do is misguided, incredibly harmful to online free expression generally, and violates federal law," said EFF Senior Staff Attorney Matt Zimmerman. "We are grateful that the state of Washington has agreed that this statute cannot and will not be enforced against the Internet Archive or anyone else."

The Internet Archive and Backpage.com first filed separate challenges to SB 6251 in June, seeking to block both the state attorney general and county prosecutors from enforcing the statute. In July, federal district court judge Ricardo Martinez granted a preliminary injunction, agreeing that the statute likely violated the First, Fifth, and Fourteenth Amendments as well as conflicted with CDA 230. When approved, today's stipulations and orders will convert the preliminary injunction into a permanent one, rendering the statute unenforceable against anyone.

"The protection offered by CDA 230 has allowed YouTube to host user-uploaded videos, Craigslist to host classified ads, Facebook and Twitter to offer social networking, and the Internet Archive to offer billions of archived webpages documenting the evolution of the Internet," said EFF Staff Attorney Nate Cardozo. "While everyone involved in this case agrees with the goal of SB 6251, overbroad laws that create potential liability for general purpose Internet service providers and forums is not the right way to hold sex traffickers accountable."

For the full settlement order:
https://www.eff.org/node/72784

For more on this case:
https://www.eff.org/cases/internetarchive-v-mckenna

For more on CDA 230:
https://www.eff.org/issues/cda230/

Contacts:

Nate Cardozo
   Staff Attorney
   Electronic Frontier Foundation
   nate@eff.org

Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz@eff.org

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