May 31, 2011 | By Kevin Bankston

"Who Has Your Back" In Depth: Fighting For Users' Privacy Rights in Court

EFF recently launched a campaign calling on companies to stand with their users when the government comes looking for data. (If you haven’t done so, sign our petition urging companies to provide better transparency and privacy.) This article will provide a more detailed look at one of the four categories in which a company can earn a gold star in our campaign: fighting for users' privacy rights in court.

This category recognizes those companies that have gone to court to fight for their users' privacy interests in response to government demands for information--companies that have actually filed briefs and made legal arguments defending their users' privacy rights. A gold star in this category is especially important considering that in many cases, only the company itself will be in a position to challenge the government's attempt to obtain user information. Those companies that have done so publicly are deserving of public commendation.

Therefore, we gave Yahoo! a full gold star for its work last year in the Colorado federal court, fighting the Justice Department's attempt to seize a Yahoo! user's email without probable cause. Not only did Yahoo! oppose the government's demand in court, it also convinced the court to unseal the otherwise secret proceeding so that EFF could file a brief in the case. In the face of stiff opposition, the government ultimately backed down and withdrew its demand.

We also gave a gold star to Google, both for teaming up with EFF on its brief in last summer's Yahoo! email case, and for resisting a Justice Department subpoena for search logs in 2006. Amazon got a star, too, for repeatedly fighting to protect the privacy of its users' book purchases in the face of both federal and state government demands. Finally, we tipped our hat to Twitter for successfully convincing the government to allow the unsealing of a demand for information about Twitter users associated with Wikileaks, although we only awarded half a star because that success did not involve the filing of any briefs in court or rely on any legal arguments concerning users' privacy rights.

A star in this category is important and worthy of praise but it may not completely tell the story about a company's actions to protect its users. It's fair to assume that some internet companies--including some on our "Who's Got Your Back" list--have worked hard behind the scenes to protect their users, whether by informally convincing the government to withdraw or scale back requests for user information, or by opposing government demands in court proceedings that are under seal or that have not been reported. But since we have no way to confirm which companies have done so, it's impossible for us to factor such cases into our rankings. We urge companies that have quietly fought for their users' privacy in such circumstances to publicize those efforts wherever possible, and move for courts to unseal the details of such cases, so that they might earn a star in this category and be publicly recognized for their work.


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