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EFF Press Release Archives

Press Releases: June 2013

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

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 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 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

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