EFF Urges Department of Education to Uphold First Amendment Rights in University Anti-Harassment Policies
San Francisco - The Electronic Frontier Foundation (EFF) urged the Department of Education today to protect university students’ right to speak anonymously online, warning that curtailing anonymous speech as part of anti-harassment regulations would not only violate the Constitution but also jeopardize important on-campus activism.
“Battling gender and racial harassment and threats on college campuses is vitally important,” said EFF Legal Director Corynne McSherry. “But some are calling for blanket bans on the use of platforms that allow anonymous comments, and that’s a counterproductive strategy. Online anonymity is crucial for students who fear retaliation for their political and social commentary. It helps many people avoid being targets of harassment in the first place.”
EFF’s letter to the Department of Education comes after a number of groups pressed for new federal guidelines for fighting online harassment. EFF agrees with the majority of the recommendations, including ensuring prompt reporting and investigation of all reports of harassment, and disciplining and/or prosecuting perpetrators. However, preemptively removing access to anonymous online speech platforms violates all students’ First Amendment rights—threatening projects like the USG Girl Mafia at the University of Southern California, where students anonymously map locations of assault reports on campus. Anonymity was also essential for student activists at Guilford College in North Carolina, who used an online form to collect anonymous testimonials about racial violence from those who felt unsafe revealing their identities.
Additionally, online speech bans are problematic because any technical restriction—like blocking on-campus access through the university’s wireless network, or limiting where students can access particular mobile applications or websites—will not prevent any student from going off-campus or joining another wireless network to comment anonymously.
“The Internet has an unmatched ability to help groups of people organize and communicate and be a force for positive social change,” said EFF Frank Stanton Legal Fellow Aaron Mackey. “Taking away choices for anonymous speech will curtail these activities without meaningfully preventing illegal harassment and threats. We urge the Department of Education to find solutions that protect all students.”
For the full letter to the Department of Education:
Company Built Customized ‘Golden Shield’ System to Identify Falun Gong Members Who Were Later Tortured
San Francisco—The Electronic Frontier Foundation (EFF) is urging a federal appeals court to reinstate a lawsuit seeking to hold Cisco Systems accountable for aiding in human rights abuses by building the Chinese government a system that Cisco officials knew was intended to identify—and facilitate the capture and torture of—members of the Falun Gong religious minority.
In an amicus brief filed Monday with the United States Court of Appeals for the Ninth Circuit, EFF and the groups ARTICLE 19 and Privacy International argue that the plaintiffs sufficiently alleged that Cisco understood that the “Golden Shield” system (also known as The Great Firewall) it custom-built for China was an essential component of the government’s program of persecution against the Falun Gong—persecution that included online spying and tracking, detention, and torture.
In Doe v. Cisco Systems Inc., Falun Gong victims and their families sued Cisco under a law known as the Alien Tort Statute, which allows noncitizens to bring claims in U.S. federal court for violations of human rights laws. A federal judge dismissed the case, saying the plaintiffs didn’t offer enough support for their claim that Cisco knew the customized features of the Golden Shield enabling the identification and apprehension of Falun Gong practitioners specifically would ultimately lead to torture.
As EFF explains in its brief, the judge misapplied the law.
“The facts alleged by the plaintiffs are sufficient to proceed with a lawsuit claiming Cisco knew that technologies it designed from its offices in San Jose, California, would facilitate human rights abuses, and purposefully built its products to help the Chinese government carry out its program of repressing, capturing, and abusing Falun Gong members,” said EFF Staff Attorney Sophia Cope. “Company officials didn’t have to be present in China in order to assist human rights violations, and victims have a right to their day in court.’’
The Golden Shield system included a library of Falun Gong Internet activity enabling the Chinese government to identify Falun Gong members online, according to the lawsuit. The case also contains strong evidence that Cisco created systems for storing and sharing information about “forced conversion”—i.e. torture—sessions for use as training tools. The cooperation was also documented in internal marketing literature, where a Cisco engineer described the company’s commitment to China’s security objectives, including the “douzheng” of Falun Gong practitioners. Douzheng is a term describing abuse campaigns against disfavored groups comprising of persecution and torture.
“Cisco’s conduct is part of a growing trend of U.S. and European technology companies helping repressive governments become highly efficient at committing human rights violations,” said Cope. “We are asking the Ninth Circuit to recognize that victims of such abuses can seek to hold accomplices like Cisco accountable for their role in brutal persecutions.”
Government Has Created Impermissible Licensing Regime for Computer-Readable Designs
San Francisco - The government cannot require Americans to go through an export licensing scheme prior to posting and sharing 3-D printer design files online, because publishing technical information is a form of speech protected by the First Amendment, the Electronic Frontier Foundation (EFF) told a federal appeals court Thursday.
The case is Defense Distributed v. United States Department of State, in which the Texas company sued the State Department after officials warned that criminal sanctions could be brought for publishing a 3-D printable file for a one-shot plastic gun, as well as other design and documentation files without a license. The State Department claimed that publishing the files on the Internet could violate the International Traffic in Arms Regulations (ITAR), which controls the international export of defense-related technology. After suggesting Defense Distributed put in an administrative request to determine whether the files were, in fact, controlled, the State Department sat on the request for nearly two years—only acting after Defense Distributed sued. It then concluded that a license was required to publish most of the files at issue.
The export controls regime provides no opportunity for a would-be publisher to challenge in court the State Department’s determination that a license is required, or the denial of a license. In an amicus brief filed in the United States Court of Appeals for the Fifth Circuit, EFF said that the State Department’s licensing regime for speech about defense-related technologies—many of which have civilian applications—violates the First Amendment.
“The First Amendment requires that speech be allowed except in the narrowest circumstances. Here, the export controls regime does not provide for judicial oversight or require the government to prove the appropriate conditions for a prior restraint of speech. Rather, the law criminalizes as a general matter the online publication of unclassified designs and documentation about a wide range of technologies,” said EFF Staff Attorney Kit Walsh. “The Supreme Court has been very clear that any speech licensing regime has to be governed by definite standards of review, judicial oversight, and prompt deadlines. This process doesn’t contain any of those safeguards to prevent capricious censorship.”
The questions at issue in this lawsuit are a direct parallel to one of EFF’s first cases, the landmark Bernstein v. U.S. Department of State. In Bernstein, the court found that the source code for the first freely available encryption software was constitutionally protected free speech and that the government’s attempt to suppress it via export control licensing violated the First Amendment.
“The government is trying to use the same tactic it used in the 1990s to block researchers from sharing computer code online,” said Walsh. “A court first ruled more than 15 years ago that source code was speech protected by the First Amendment, in a case that held the government’s export regulations preventing its publication were unconstitutional. The Fifth Circuit should do the same for design files.”
For the full amicus brief:
New Feature Analyzes Your Web Browser and Add-Ons for Successful Tracker Blocking
San Francisco - The Electronic Frontier Foundation (EFF) launched new online tracker-testing in its Panopticlick tool today, helping you analyze the privacy protections in your Web browser.
When you visit a website, online trackers and the site itself may be able to identify you, and the records of your online activity can then be distributed among a vast network of advertising exchanges, data brokers, and tracking companies. Many people install ad- or tracker-blockers to try to protect themselves, but it can be hard to know how effective they are. Panopticlick will check your browser and your add-ons and assess the privacy protections users have in place. It can also suggest remedies for under-protected browsers.
But even if you have strong tracker blocking installed on your computer, you could still be identified by what’s called a “browser fingerprint.” That’s the combination of factors such as your operating system, your browser, and plug-ins. Panopticlick also analyzes the uniqueness of your browser to see if you are still at risk from this kind of data-gathering, even if you have privacy-protective software installed.
“Have you ever felt like ads you see online have an uncanny knowledge of your browsing habits? It’s creepy, and a sign you are being tracked,” said EFF Chief Computer Scientist Peter Eckersley. “When you visit Panopticlick and click on the ‘test me’ button, the site simulates the loading of various tracking technologies. Then you get a report to help you understand what protections you have in place, and what’s missing. Panopticlick is a great way to boost your privacy as you read, shop, and interact with websites throughout your day.”
Fighting for user privacy on the Web can feel like an uphill battle, with advertisers and marketers changing their tactics and technologies at a lightning pace. Panopticlick will also do double-duty as a research project for EFF, collecting anonymous data for technologists to analyze so they can improve privacy tools like EFF’s Privacy Badger and develop others down the road.
“Online data-gatherers use tactics that are complex, subtle, and ever-evolving,” said EFF Software Engineer Bill Budington. “Panopticlick is a way for you to help protect yourself, as well as help contribute to our understanding of online tracking more generally.”
EFF Battles Facebook’s Claims That It’s a Crime to Bypass an IP Block
San Francisco—The Electronic Frontier Foundation (EFF) will urge a federal appeals court Wednesday to reject Facebook’s claims that it’s a crime to workaround an IP address block—an interpretation of the law that could criminalize routine online behavior. EFF Legal Fellow Jamie Williams will participate in oral argument in the case, Facebook v. Power Ventures, set for 9:30 am on Dec. 9 before the United States Court of Appeals for the Ninth Circuit in San Francisco, California.
Power Ventures made a web-based tool that allowed users to log into all of their social networking accounts in one place and aggregate messages, friend lists, and other data. Facebook sued Power, claiming it violated a federal anti-hacking statute, the Computer Fraud and Abuse Act (CFAA), when it provided Facebook users a way to access their data through Power after Facebook blocked a specific IP address the company was using to connect to Facebook data. A district court sided with Facebook, finding that designing a system to work around IP address blocks could be a crime under the CFAA.
The CFAA targets unauthorized acts of breaking into computer systems to steal data and cause other harm. In Wednesday’s hearing, Williams will argue that the Ninth Circuit has already ruled that the CFAA must be interpreted narrowly to avoid transforming what was intended to be an anti-hacking statute into a law that could sweep up innocuous conduct. Criminalizing a routine process like switching IP addresses stifles innovation and harms consumers—and it’s not what Congress had in mind.
Facebook v. Power Ventures and Steven Vachani
EFF Frank Stanton Legal Fellow Jamie Williams
Wednesday, Dec. 9
Ninth Circuit Court of Appeals-James R. Browning Courthouse
Courtroom 2, 3rd Fl, Room 330
95 7th St.
San Francisco CA 94103
EFF Launches 'Spying on Students' Campaign to Raise Awareness About Privacy Risks of School Technology Tools
San Francisco—The Electronic Frontier Foundation (EFF) filed a complaint today with the Federal Trade Commission (FTC) against Google for collecting and data mining school children’s personal information, including their Internet searches—a practice EFF uncovered while researching its “Spying on Students” campaign, which launched today.
The campaign was created to raise awareness about the privacy risks of school-supplied electronic devices and software. EFF examined Google’s Chromebook and Google Apps for Education (GAFE), a suite of educational cloud-based software programs used in many schools across the country by students as young as seven years old.
While Google does not use student data for targeted advertising within a subset of Google sites, EFF found that Google’s “Sync” feature for the Chrome browser is enabled by default on Chromebooks sold to schools. This allows Google to track, store on its servers, and data mine for non-advertising purposes, records of every Internet site students visit, every search term they use, the results they click on, videos they look for and watch on YouTube, and their saved passwords. Google doesn’t first obtain permission from students or their parents and since some schools require students to use Chromebooks, many parents are unable to prevent Google’s data collection.
Google’s practices fly in the face of commitments made when it signed the Student Privacy Pledge, a legally enforceable document whereby companies promise to refrain from collecting, using, or sharing students’ personal information except when needed for legitimate educational purposes or if parents provide permission.
“Despite publicly promising not to, Google mines students’ browsing data and other information, and uses it for the company’s own purposes. Making such promises and failing to live up to them is a violation of FTC rules against unfair and deceptive business practices,” said EFF Staff Attorney Nate Cardozo. “Minors shouldn’t be tracked or used as guinea pigs, with their data treated as a profit center. If Google wants to use students’ data to ‘improve Google products,’ then it needs to get express consent from parents.”
Google told EFF that it will soon disable a setting on school Chromebooks that allows Chrome Sync data, such as browsing history, to be shared with other Google services. While that is a small step in the right direction, it doesn’t go nearly far enough to correct the violations of the Student Privacy Pledge currently inherent in Chromebooks being distributed to schools.
EFF’s filing with the FTC also reveals that the administrative settings Google provides to schools allow student personal information to be shared with third-party websites in violation of the Student Privacy Pledge. The ability to collect and potentially share student information follows children whenever they use Chrome to log into their Google accounts, whether on a parents’ Apple iPad, friend’s smartphone or home computer.
“We commend schools for bringing technology into the classroom. Chromebooks and Google Apps for Education have enormous benefits for teaching and preparing students for the future. But devices and cloud services used in schools must, without compromise or loopholes, protect student privacy,” said EFF Staff Attorney Sophia Cope. “We are calling on the FTC to investigate Google’s conduct, stop the company from using student personal information for its own purposes, and order the company to destroy all information it has collected that’s not for educational purposes.”
EFF’s “Spying on Students” project aims to educate parents and school administrators to the risks of data collection by companies supplying technology tools used by students. The website provides facts on how data is collected, a case study, links to resources for parents and school officials, and tips for improving privacy.
Michael Godbe, a Fall 2015 EFF Legal Intern, helped prepare the FTC complaint, and Annelyse Gelman, EFF activist intern, helped prepare education material for the project.
To view the FTC complaint:
For more information on EFF’s “Spying on Students” project:
New Project Will Gather Users' Stories of Censorship from Around the World
San Francisco – The Electronic Frontier Foundation (EFF) and Visualizing Impact launched Onlinecensorship.org today, a new platform to document the who, what, and why of content takedowns on social media sites. The project, made possible by a 2014 Knight News Challenge award, will address how social media sites moderate user-generated content and how free expression is affected across the globe.
Controversies over content takedowns seem to bubble up every few weeks, with users complaining about censorship of political speech, nudity, LGBT content, and many other subjects. The passionate debate about these takedowns reveals a larger issue: social media sites have an enormous impact on the public sphere, but are ultimately privately owned companies. Each corporation has their own rules and systems of governance that control users’ content, while providing little transparency about how these decisions are made.
At Onlinecensorship.org, users themselves can report on content takedowns from Facebook, Google+, Twitter, Instagram, Flickr, and YouTube. By cataloging and analyzing aggregated cases of social media censorship, Onlinecensorship.org seeks to unveil trends in content removals, provide insight into the types of content being taken down, and learn how these takedowns impact different communities of users.
“We want to know how social media companies enforce their terms of service. The data we collect will allow us to raise public awareness about the ways these companies are regulating speech,” said EFF Director for International Freedom of Expression and co-founder of Onlinecensorship.org Jillian C. York. “We hope that companies will respond to the data by improving their regulations and reporting mechanisms and processes—we need to hold Internet companies accountable for the ways in which they exercise power over people’s digital lives.”
York and Onlinecensorship.org co-founder Ramzi Jaber were inspired to action after a Facebook post in support of OneWorld’s “Freedom for Palestine” project disappeared from the band Coldplay’s page even though it had received nearly 7,000 largely supportive comments. It later became clear that Facebook took down the post after it was reported as “abusive” by several users.
“By collecting these reports, we’re not just looking for trends. We’re also looking for context, and to build an understanding of how the removal of content affects users’ lives. It’s important companies understand that, more often than not, the individuals and communities most impacted by online censorship are also the most vulnerable,” said Jaber. “Both a company’s terms of service and their enforcement mechanisms should take into account power imbalances that place already-marginalized communities at greater risk online.”
Onlinecensorship.org has other tools for social media users, including a guide to the often-complex appeals process to fight a content takedown. It will also host a collection of news reports on content moderation practices.
Law Allows DNA Collection From Arrestees Before They’re Charged, Convicted
San Francisco—Californians who’ve merely been arrested and not charged, much less convicted of a crime, have a right to privacy when it comes to their genetic material, EFF said in an amicus brief filed Nov. 13 with the state’s highest court.
EFF is urging the California Supreme Court to hold that the state’s arrestee DNA collection law violates privacy and search and seizure protections guaranteed under the California constitution. The law allows police to collect DNA from anyone arrested on suspicion of a felony—without a warrant or any finding by a judge that there was sufficient cause for the arrest. The state stores arrestees’ DNA samples indefinitely, and allows access to DNA profiles by local, state, and federal law enforcement agencies.
EFF is weighing in on People v. Buza, a case involving a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. EFF argues that the state should not be allowed to collect DNA from arrestees because our DNA contains our entire genetic makeup—private and personal information that maps who we are, where we come from, and who we are related to. Arrestees, many of whom will never be charged with or convicted of a crime, have a right to keep this information out of the state’s hands.
“Nearly a third of those arrested for suspected felonies in California are later found to be innocent in the eyes of the law. Hundreds of thousands of Californians who were once in custody but never charged still have their DNA stored in law enforcement databases, subject to continuous searches,” said EFF Senior Staff Attorney Jennifer Lynch. “This not only violates the privacy of those arrested, it could impact their family members who may someday be identified through familial searches. The court must recognize that warrantless and suspicionless DNA collection from arrestees puts us on a path towards a future where anyone’s DNA can be gathered, searched, and used for surveillance.”
California officials argue that the court should follow the lead of the U.S. Supreme Court, which ruled in Maryland v. King that citizens’ privacy rights are outweighed by the government’s need to use DNA to identify arrestees, just as it uses fingerprints.
But DNA samples contain our entire genome—fingerprints don’t. What’s more, Maryland limits DNA collection to those arrested and subsequently charged for serious offenses—in 2013 that amounted to 17,400 arrests. In California, all of the nearly 412,000 felony arrests that same year were subject to DNA collection. Maryland also prohibits familial searches and requires DNA samples to be automatically expunged from databases and destroyed if a person is never charged with or convicted of the crime leading to arrest. California law doesn’t prohibit familial searches, and the state makes it extremely difficult for citizens to have their DNA records removed from the system.
“A lower court in this case correctly recognized that California’s DNA collection law deeply intrudes on the privacy interests of arrestees. The California Supreme Court should come to the same conclusion and strike it down,” said Lynch.
Law professors at UC Davis School of Law, New York University School of Law, Georgia State University College of Law, and UC Berkeley School of Law, as well the Office of the Maryland Public Defender and the National Association of Criminal Defense Lawyers joined EFF in filing the brief.
U.S. House Judiciary Committee Hosts Discussion in Santa Clara
Santa Clara, California—On Monday, Nov. 9, at 2 p.m., Electronic Frontier Foundation (EFF) Staff Attorney Kit Walsh will participate in a roundtable discussion about U.S. copyright laws convened by the House Judiciary Committee, which is undertaking the first comprehensive review of the nation’s copyright laws since the 1960s.
Copyright was intended to promote creativity, but the law has not developed to support the explosion of creativity enabled by new technologies. Too often, copyright is instead being abused to shut down innovation, creative expression, and even everyday activities like tinkering with your car. At the roundtable discussion being held at Santa Clara University on Monday, Walsh will speak about reforming Section 1201 of the Digital Millennium Copyright Act (DMCA), an overbroad law that locks device owners out of their software and media. Walsh will also discuss the need to reduce the exorbitant “statutory damages” available to copyright claimants—even when rightsholders suffered no harm—so that users of copyrighted works do not face a financial death sentence if they misstep in exercising their rights to remix and tinker. Finally, she will discuss how Congress can ensure that one-sided click-through agreements don’t strip users of their freedoms under copyright law or the right to resell things they’ve purchased.
Monday’s roundtable discussion is the latest in a series of hearings and talks, hosted by House Judiciary Committee Chairman Bob Goodlatte, and joined by creators, innovators, technology professionals, and users of copyrighted works. Goodlatte announced in 2013 that the committee would conduct a review of U.S. copyright laws to determine whether they are still working in the digital age to reward creativity and innovation.
House Judiciary Committee Roundtable Discussion on U.S. Copyright Laws
EFF Staff Attorney Kit Walsh
Monday, Nov. 9, 2015, 2 p.m.
Santa Clara University
500 El Camino Real
Santa Clara, California
Exemption Requests Also Approved for Tweaking Abandoned Videogames, Jailbreaking Phones and Tablets, and Remixing Videos
Washington, D.C. - The Librarian of Congress has granted security researchers and others the right to inspect and modify the software in their cars and other vehicles, despite protests from vehicle manufacturers. The Electronic Frontier Foundation (EFF) filed the request for software access as part of the complex, triennial rulemaking process that determines exemptions from Section 1201 of the Digital Millennium Copyright Act (DMCA).
Because Section 1201 prohibits unlocking “access controls” on the software, car companies have been able to threaten legal action against anyone who needs to get around those restrictions, no matter how legitimate the reason. While the copyright office removed this legal cloud from much car software research, it also delayed implementation of the exemption for one year.
“This ‘access control’ rule is supposed to protect against unlawful copying,” said EFF Staff Attorney Kit Walsh. “But as we’ve seen in the recent Volkswagen scandal—where VW was caught manipulating smog tests—it can be used instead to hide wrongdoing hidden in computer code. We are pleased that analysts will now be able to examine the software in the cars we drive without facing legal threats from car manufacturers, and that the Librarian has acted to promote competition in the vehicle aftermarket and protect the long tradition of vehicle owners tinkering with their cars and tractors. The year-long delay in implementing the exemptions, though, is disappointing and unjustified. The VW smog tests and a long run of security vulnerabilities have shown researchers and drivers need the exemptions now.”
EFF also won an exemption for users who want to play video games after the publisher cuts off support. For example, some players may need to modify an old video game so it doesn’t perform a check with an authentication server that has since been shut down. The Librarian also granted EFF’s petition to renew a previous exemption to jailbreak smartphones, and extended that to other mobile devices, including tablets and smartwatches. This clarifies the law around jailbreaking, making clear that users are allowed to run operating systems and applications from any source, not just those approved by the manufacturer. EFF also won the renewal and partial expansion of the exemptions for remix videos that use excerpts from DVDs, Blu-Ray discs, or downloading services.
“We’re pleased that the Librarian of Congress and the Copyright Office have expanded these legal protections to users of newer products like tablets, wearable computers, and Blu-Ray discs,” said EFF Senior Staff Attorney Mitch Stoltz.
Today’s ruling is a victory for users, artists, and researchers. However, the laborious process required to remove a legal cloud over clear fair uses highlights the need for fundamental reforms.
“It’s absurd that we have to spend so much time, every three years, filing and defending these petitions to the copyright office. Technologists, artists, and fans should not have to get permission from the government—and rely on the contradictory and often nonsensical rulings—before investigating whether their car is lying to them or using their phone however they want,” said EFF Legal Director Corynne McSherry. “But despite this ridiculous system, we are glad for our victories here, and that basic rights to modify, research, and tinker have been protected.”
EFF's remix petition was drafted and co-submitted with the Organization for Transformative Works. EFF’s remaining petitions received invaluable assistance from the NYU Technology Law & Policy Clinic, attorney Marcia Hofmann, and former EFF intern Kendra Albert.
For the full ruling from the Library of Congress:
For more on the DMCA rulemaking:
EFF Battles Against Government Stalling in Jewel v. NSA
Pasadena, CA - The Electronic Frontier Foundation (EFF) will urge an appeals court Wednesday to reject the government’s attempts to block an appeal in Jewel v. NSA, EFF’s long-running lawsuit battling unconstitutional mass surveillance of Internet and phone communications. The hearing is set for 2:00 pm on October 28 before the United States Court of Appeals for the Ninth Circuit in Pasadena, California.
At issue in the appeal is the NSA’s tapping into the fiber optic cables of America’s telecommunications companies—a digital dragnet that subjects millions of ordinary people to government spying on their online activities. A mountain of evidence from whistleblowers and the government itself confirms the Internet backbone spying, yet a district court judge ruled earlier this year that there wasn’t enough publicly available information to rule if the program is constitutional.
EFF appealed to the Ninth Circuit, but the government claims that the appeal is premature and entwined with other issues that are still being litigated in the lower court. EFF Special Counsel Richard Wiebe will argue Wednesday that the appeals court should reject the government’s delay tactics, and finally address whether backbone spying is legal and constitutional.
Jewel v. NSA
EFF Special Counsel Richard Wiebe
Wednesday, Oct. 28
Richard H. Chambers US Court of Appeals
125 South Grand Avenue
Pasadena, CA 91105
Groups Appeal Lower Court Ruling Finding Police Agencies Don’t Have To Disclose Records
San Francisco—The Electronic Frontier Foundation (EFF) and the ACLU Foundation of Southern California (ACLU SoCal) are urging California’s highest court to rule that license plate data, collected indiscriminately on millions of drivers by police across the state, are not investigative records and should be made available to the public.
EFF and ACLU SoCal argued in a brief filed today with the California Supreme Court that citizens need access to automated license plate reader (ALPR) records to understand exactly how this intrusive technology is used.
ALPRs are high-speed cameras mounted on light poles and police cars that continuously scan the plates of every passing car. They collect not only the license plate number but also the time, date, and location of each plate scanned, along with a photograph of the vehicle and sometimes its occupants. The Los Angeles Police Department (LAPD) and the Los Angeles County Sheriff's Department (LASD) collect, on average, three million plate scans every week and have amassed a database of half a billion records.
EFF filed public records requests for a week’s worth of ALPR data from the agencies and, along with ACLU SoCal, sued after both refused to release the records.
EFF and ACLU SoCal are now asking the state supreme court to overturn a ruling in the case from a lower court that said all license plate data—collected indiscriminately and without suspicion that the vehicle or driver was involved in a crime—could be withheld from disclosure as “records of law enforcement investigations.”
“That argument is tantamount to saying all drivers in Los Angeles are under criminal investigation at all times,’’ said EFF Senior Staff Attorney Jennifer Lynch. “The ruling sets a troubling standard that would not just allow these agencies to keep ALPR data from the public but could also allow the police to keep data and footage from other surveillance technologies—from body cameras to drones to face recognition—from ever being scrutinized.”
“Drivers would be surprised to learn that they are under investigation every time they drive in public,” said Peter Bibring, director of police practices at the ACLU SoCal. “The Fourth Amendment was added to the U.S. Constitution exactly to prevent law enforcement from conducting mass, suspicionless investigations under ‘general warrants’ that target no specific person or place and never expire.”
Senior Staff Attorney
Electronic Frontier Foundation
Director of Communications
ACLU of Southern California
+1 213-977-9500 x247
Police Should Not Have Unfettered Access To Patients’ Sensitive Prescription Drug Records
San Francisco—The Electronic Frontier Foundation (EFF) is urging the California Supreme Court to rule that law enforcement agents need a warrant to search records revealing which Californians were prescribed controlled substances to treat conditions such as anxiety, pain, attention disorders, and insomnia.
In an amicus brief filed today, EFF told the state’s highest court that law enforcement agencies should be required to seek a judge’s approval to access such records. Controlled substance prescription records contain highly sensitive information about patients’ medical history and should be afforded the same degree of privacy as any other medical records.
“Patients are prescribed controlled substances to treat post-traumatic stress disorder, ADHD, and extreme pain from surgeries. They should be secure that no one but their medical professionals can access that information without a judge’s approval,” said EFF Frank Stanton Legal Fellow Jamie Williams. “Granting law enforcement unfettered access to prescription drugs records violates the Fourth Amendment and the California Constitution and puts the privacy of all Californians at risk.”
In the case Lewis v. Superior Court (Medical Board of California), a doctor sued the medical board for accessing his patients’ prescription records from the Controlled Substance Utilization Review and Evaluation System (CURES) database without a warrant or any suspicion of patient wrongdoing.
A state court in Los Angeles found that the patients’ privacy rights hadn’t been violated. An appeals court agreed, holding that patients can’t expect prescription records to be as private as medical records because they know, or should know, that California monitors the flow of controlled substances.
“The California Supreme Court should overrule the decision to downgrade patients’ expectation of privacy over controlled substance prescription records,’’ said EFF Senior Staff Attorney Lee Tien. “The court should require law enforcement to obtain a warrant supported by probable cause to access these sensitive records.”
Wednesday Hearing On EFF Demand to Disclose Export Applications for Surveillance Technology
Stanford, California—On Wednesday, October 21, at 12:45 pm, the Electronic Frontier Foundation (EFF) will urge a federal appeals court to order the U.S. government to disclose information about its role in facilitating exports of American-made surveillance tools to foreign nations.
The hearing is part of a Freedom of Information Act (FOIA) lawsuit against the U.S. Commerce Department, which denied a request seeking disclosure of export applications for surveillance technologies. The agency has argued that it could withhold the documents under a 1979 law—even though that law expired in 2001. In July 2013, a federal judge agreed with EFF, finding the lapsed law did not justify withholding the information. He ordered the records disclosed, and the government appealed that decision.
At Wednesday’s hearing, EFF Staff Attorney Mark Rumold will argue that the government can’t resurrect dead laws to keep information from the public. “EFF’s FOIA request would shed light on the role our government plays when technology companies export spying equipment to nations that don’t respect human rights. The government can’t rely on a law that expired almost 15 years ago to hide this critical information from the public,’’ said Rumold.
The hearing is being held at Stanford Law School in a special sitting of the U.S. Court of Appeals for the Ninth Circuit.
EFF v. U.S. Department of Commerce
Wednesday, Oct. 21
Stanford Law School
Room 80 Moot Courtroom
559 Nathan Abbott Way
Stanford, CA 94305
For more on this case:
Adzerk Joins Coalition Delivering Stronger Privacy and a Way Forward in the Ad Blocking Impasse
San Francisco – Online advertising company Adzerk will offer compliance with EFF's new “Do Not Track” (DNT) standard for Web browsing starting this week, significantly strengthening the coalition of companies using the policy standard to better protect people from sites that try to secretly follow and record users’ Internet activity. Adzerk serves billions of ad impressions per month, and customers using its technology include Reddit, BitTorrent, and Stack Overflow.
The Electronic Frontier Foundation (EFF) and privacy company Disconnect launched the new DNT standard last month, joined by innovative publishing site Medium, major analytics service Mixpanel, popular ad- and tracking-blocking extension AdBlock, and private search engine DuckDuckGo.
“Adzerk is an important new member of the Do Not Track coalition, helping to protect millions of Internet users and others from stealthy online tracking and exploitation of their reading history,” said EFF Chief Computer Scientist Peter Eckersley. “We are thrilled that consensus keeps growing in the online advertising community: clear and fair practices are essential not only for privacy, but for the ongoing health of the industry.”
DNT is a preference you can set on Firefox, Chrome, or other Web browsers as well as in the iOS or FirefoxOS mobile operating systems, which signals to websites that you want to opt-out of tracking of your online activities. DNT works in tandem with software like Privacy Badger and Disconnect, which not only set the DNT flag but also block trackers and ads that do not respect it. Adzerk is the first online advertising company that is offering its customers—the websites and other online services that show ads—the ability to opt-in to using DNT, which would pass the extra tracking protection on to the sites’ users.
Tracking by advertisers and other third parties is ubiquitous on the Web today, and typically occurs without the knowledge, permission, and consent of Internet users. However, you can see the evidence of this tracking when the online ads you see on one site seem to be based on what you looked at on another site. Meanwhile, the underlying records and profiles of your online activity are distributed between a vast network of advertising exchanges, data brokers, and tracking companies.
“Many websites get much of their operating revenue from online ads, yet the groundswell of discomfort from users about how their private information is being collected and used is leading to a boom in ad-blocking technologies. We need to find a way for privacy and advertising to work together,” said Adzerk Chief Executive Officer James Avery. “The new Do Not Track gives us a way to provide publishers with ads that respect users' privacy and online choices, and which as a result will be visible in more users' browsers”
For more on Do Not Track:
For more on the ad-blocker debate:
Activists Targeted by Governments Need Support From Global Digital Community
San Francisco—The Electronic Frontier Foundation (EFF) today launched the Offline project, a campaign devoted to digital heroes—coders, bloggers, and technologists—who have been imprisoned, tortured, and even sentenced to death for raising their voices online or building tools that enable and protect free expression on the Internet.
The Offline project initially presents five cases of silenced pioneers, including the personal stories of technologists like Saeed Malekpour, a Canadian programmer who wrote software for uploading photos to the Web. While visiting Iran, Malekpour was kidnapped, thrown in prison, beaten, tortured, and given a death sentence by an Iranian court. His case, and other cases of coders and online journalists imprisoned by governments for their work in the digital world, have received little attention in the mainstream media and online community.
Offline aims to change that by collecting these important stories and providing links and resources about what the online community can do to support them, defend their names, and keep them safe. More cases will be added to the project in the future.
“Oppressive regimes are silencing those whose work or voices they wish to squelch by throwing them in jail. Offline will shed much-needed attention on these technologists and encourage digital citizens to join campaigns advocating for their freedom," said Danny O’Brien, EFF’s international director. “We see a clear connection between innovators who work to build an open Internet in relative safety and colleagues doing similar work who have been silenced and cut off from the online world we share. We hope to strengthen that association in order to help keep all technologists safe regardless of where they live or travel."
Offline was created in response to an alarming increase in the number of technologists detained or threatened with prison for their work. Another example is tech pioneer Bassel Khartabil, a Palestinian-Syrian software developer who wrote and shared free code as well as information about his home country of Syria. He was arrested and charged in a bid to stifle access to news and free expression.
“It's a tragedy that our friend and co-developer Bassel is imprisoned, when Syria and the world so badly need his skills and commitment to open, peaceful collaboration," said Jon Phillips, Bassel’s colleague and organizer of the #freebassel campaign. “Until he is free, maintaining the visibility of his situation is vital to shielding him from harm and keeping his spirits up."
Advocacy and campaigns on behalf of imprisoned technologists can make a difference. Saeed Malekpour’s original death penalty was reduced to life imprisonment in 2012 after an international outcry over his sentencing.
“Our past experience has shown that when you shine a light on these prisoners of conscience, sentences are often reduced and conditions improved," said Jillian C. York, EFF’s director for international freedom of expression.
Net Neutrality Rules Under Attack by U.S. Telecommunications Providers
Washington—The Electronic Frontier Foundation (EFF) is asking a federal appeals court to approve Federal Communications Commission (FCC) net neutrality rules that prevent Internet service providers from interfering with and censoring content on the Web.
U.S. telecommunication providers sued the FCC in Washington D.C. federal circuit court after the FCC published the rules, called the Open Internet Order, earlier this year. Among other things, service providers and their supporters argue that the order strips telecom companies of control over which speech they transmit.
In an amicus brief filed in the case today, EFF and the American Civil Liberties Union (ACLU) explain that the order is an appropriately-tailored measure that protects the Internet’s open and robust "marketplace of ideas" without placing excessive or inappropriate restrictions on telecommunications providers or regulating their speech or messages.
"The openness of the Internet has transformed our civic life, our culture, and our economy, and net neutrality is essential to ensuring that ISP gatekeepers do not undermine the freedom of speech and access to knowledge we enjoy online," said EFF Staff Attorney Kit Walsh. "Internet service providers stand between subscribers and the rest of the world, giving them the power to interfere with our communications in order to further their own interests. We’re urging the court to approve rules that protect users’ rights to freely express themselves and access information online."
The FCC net neutrality order prohibits ISPs from blocking or degrading service—which they may do to thwart competition or increase profits—or charging tolls for speedier traffic to certain websites. By narrowly focusing regulation on ISPs acting as conduits for the speech of others and operating in a dysfunctional market shaped by government subsidies, the net neutrality order appropriately protects customers’ freedoms.
"In addition to supporting the order’s bright-line rules against blocking, throttling, and paid prioritization, we are also urging the court to clarify other aspects of the order so as to provide clear boundaries on the FCC’s discretion," said EFF Legal Director Corynne McSherry. "The FCC should focus on whether ISPs interfere with freedom of expression and whether they discriminate with respect to the content and sources of web traffic. That focus will help strike the right balance and limit the risk that the FCC might abuse its power to impede, rather than promote, innovation and free speech."
Appeals Court Affirms That Copyright Owners Must Consider Fair Use in Online Takedowns
San Francisco – A federal appeals court in San Francisco today affirmed that copyright holders must consider whether a use of material is fair before sending a takedown notice. The ruling came in Lenz v. Universal, often called the “dancing baby” lawsuit.
The Electronic Frontier Foundation (EFF) represents Stephanie Lenz, who—back in 2007—posted a 29-second video to YouTube of her children dancing in her kitchen. The Prince song “Let’s Go Crazy” was playing on a stereo in the background of the short clip. Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (DMCA), claiming that the family video infringed the copyright in Prince’s song. EFF sued Universal on Lenz’s behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use.
Today, the United States Court of Appeals for the Ninth Circuit ruled that copyright holders like Universal must consider fair use before trying to remove content from the Internet. It also rejected Universal’s claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss.
“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” said EFF Legal Director Corynne McSherry. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”
Today’s ruling in the Lenz case comes at a critical time. Heated political campaigns—like the current presidential primaries—have historically led to a rash of copyright takedown abuse. Criticism of politicians often includes short clips of campaign appearances in order to make arguments to viewers, and broadcast networks, candidates, and other copyright holders have sometimes misused copyright law in order to remove the criticism from the Internet.
“The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends,” said McSherry. “We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”
Keker & Van Nest LLP serves as co-counsel on Lenz v. Universal.
For the full decision from the Ninth Circuit:
For more on this case:
Warrants Should Be Required to Search Cell Phones, Computers
Richmond, Virginia—The Electronic Frontier Foundation (EFF) is urging a federal appeals court to rule that government agents need a warrant to search cell phones, computers, and other personal electronic devices at the border.
In an amicus brief filed today in the United States Court of Appeals for the Fourth Circuit, EFF said that digital devices hold the most intimate details of our personal and professional lives—from conversations with friends and coworkers, to our financial information, and photos and videos of our family. This highly sensitive and personal information, stored on the devices themselves or on computer servers located miles away, can be accessed in just a few clicks, putting electronic devices in a totally different category than the suitcases, backpacks or wallets we travel with.
''Anyone coming back into the country from vacation or a business trip can have his or her smartphone, laptop, or tablet seized, and emails, texts, photos, videos, and voicemails rifled through and retained, without a warrant or any suspicion that a crime has been committed,’’ said EFF Staff Attorney Sophia Cope. “This violates Fourth Amendment protections against unreasonable searches and seizures. The Supreme Court recognized last year in Riley v. California that modern digital devices contain unprecedented amounts of highly personal information and ruled that police need a warrant to search devices found on people they arrest. The same standard should apply when border agents want to search devices we carry with us while traveling.’’
EFF is weighing in on the Maryland case of U.S. v. Saboonchi, which involves evidence taken without a warrant from cell phones and a flash drive belonging to an Iranian-American U.S. citizen returning from vacation at Niagara Falls. Law enforcement officials used information found on the devices—which could hold the equivalent of dozens of suitcases worth of documents—to charge him with violating export control laws.
EFF’s brief explains that the Fourth Amendment’s border search exception allows warrantless searches at the U.S. border only for the purposes of enforcing immigration and customs laws. That means agents may check travelers’ passport and immigration documents, and search luggage for physical contraband like drugs or items subject to import duties.
''Searches conducted for the purpose of ordinary criminal law enforcement aren’t covered by the border search exception,’’ said EFF Senior Staff Attorney Hanni Fakhoury. “The border search exception is not meant to be a loophole for law enforcement to obtain troves of personal information without a warrant.’’
Florida Case Allowing Unconstitutional Mobile Phone Tracking Needs Review by High Court
Washington D.C.—Americans have the right to expect that digital records of their daily travels—when they left home, where they went, and how long they stayed—is private information, the Electronic Frontier Foundation (EFF) said in an amicus brief filed with the Supreme Court of the United States.
Weighing in on one of the most important digital privacy rights cases of the year, EFF is asking the court to hear arguments in Davis v. U.S., a federal criminal case from Florida that examines whether police need a search warrant to obtain historical cell site location information (CSLI). These records show law enforcement which cell phone towers your phone has connected to in the past. In this case, police obtained 67 days of records about defendant Quartavious Davis without a warrant and used them to implicate him in various robberies.
In the brief filed Monday, EFF and other advocacy groups argue that the ubiquity of cell phone use in this country—along with a clear increase in law enforcement demands for cell site records and conflicting court rulings about the need for search warrants—means the U.S. Supreme Court should grant review in Davis’s case.
“It’s time for law enforcement to recognize that Americans’ physical location information is sensitive, and private, and protected by the Fourth Amendment’s guarantee against unreasonable searches and seizures,’’ said EFF Senior Staff Attorney Hanni Fakhoury. “Cell phones are an integral part of modern life and carry detailed information about where we go and when we travel. Many federal and state courts have already ruled that cell site information is protected under the Fourth Amendment. We are urging this country’s highest court to afford all Americans this important protection from law enforcement unless there’s a search warrant.’’
The request for Supreme Court review comes after the U.S. Court of Appeals for the Eleventh Circuit found Davis did not have an expectation of privacy in historical cell site records, meaning police did not need to obtain a search warrant before requesting and receiving his location data. This decision conflicts both with an earlier decision from the Florida Supreme Court, and a later decision from the U.S. Court of Appeals for the Fourth Circuit, which found people do have an expectation of privacy in these records, so police need a warrant to get them. More critically, the Eleventh Circuit’s decision ignores the modern reality of cell phone use: nearly everyone carries one, leaving a digital trail that could potentially be accessed at any time. Without a strong ruling from the highest court, the public and police are left with conflicting guidance about the level of constitutional protection for this sensitive location information.
“The U.S. Supreme Court has already ruled in Riley v. California that cell phones hold vast amounts of private information, potentially the sum of an individual’s private life, and searching that data requires a search warrant,’’ said EFF Senior Staff Attorney Jennifer Lynch. ‘’We believe it’s high time that the government recognize that cell phones not only hold our private data, they also generate data—stored with cell phone companies—about our private movements and travels. The government shouldn’t be allowed unfettered access to this information without first going to court and obtaining a warrant.’’
Ceremony for Honorees on September 24 in San Francisco
San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the distinguished winners of the 2015 Pioneer Awards: the late international privacy expert Caspar Bowden, the human rights and global security researchers at The Citizen Lab, international Internet access champions Anriette Esterhuysen and the Association for Progressive Communications (APC), and digital community advocate Kathy Sierra.
The award ceremony will be held the evening of September 24 at Delancey Street’s Town Hall in San Francisco. Tickets will be $125 for current EFF members, or $175 for non-members.
The late Caspar Bowden was a visionary and advocate for privacy, pressing for solutions to the greatest surveillance challenges of our generation long before others even saw the problem. In the 1990s, he worked within Britain’s Labour Party, encouraging it to adopt an explicitly pro-encryption political platform. When the party backed down from that stance, Bowden co-founded the Foundation for Information Policy Research, which worked independently to fix the damage of Britain's new surveillance laws. For many years, Bowden was a chief privacy adviser at Microsoft. In that capacity he cautioned the company and others that the increasing use of “the cloud” would leave billions vulnerable to pervasive surveillance. He warned the world about the global dangers of corporate data collection, retention, and easily abused American surveillance law. Before Bowden’s untimely death earlier this year, he worked as an independent advocate for information privacy rights, advised the European Parliament, and served as a Tor board member.
The Citizen Lab is an interdisciplinary laboratory based at the Munk School of Global Affairs, University of Toronto, Canada focusing on advanced research at the intersection of information and communication technologies, human rights, and global security. In recent years, it has become a powerful force in identifying and examining state-sponsored surveillance malware, drawing much-needed public attention to the role that surveillance and malware technologies play in facilitating human rights abuses worldwide. Their groundbreaking and peer-reviewed research has put a spotlight on both the companies that sell the technologies and the governments that use these tools to facilitate repression. Citizen Lab has produced numerous independent reports on censorship and surveillance in popular social media platforms, instant messaging applications, and search engines. It has also refined network measurement methods for performing Internet-wide scans to “fingerprint” country-level installations of Internet filtering, deep packet inspection, and surveillance products. Founded in 2001, the Citizen Lab is a recipient of the 2014 MacArthur Foundation Award for Creative and Effective Institutions, among many other awards.
Anriette Esterhuysen is the executive director of the Association for Progressive Communications (APC), an international network working with information and communications technologies to support social justice and development around the world. APC’s 68 members in 46 countries—primarily in the global south—have pioneered access to email and online information tools for activists across the globe. APC’s women's rights program has been a leader in the use of technology for women’s empowerment, and its groundbreaking Internet Rights Charter has endeavored to keep human rights on the agenda in Internet policy at national, regional, and global levels. Prior to joining APC, Esterhuysen was a human rights activist in South Africa and helped establish email and Internet connectivity in Africa. She served on the Advisory Committee of the UN Economic Commission for Africa’s African Information Society Initiative and was a member of the UN's Information and Communications Technologies Task Force. Esterhuysen was inducted into the Internet Hall of Fame in 2013, and she currently serves on the Global Commission on Internet Governance.
Kathy Sierra has been teaching programming and interaction design since the late 1980s. She founded the award-winning developer community Javaranch in 1996, a site that went on to become the largest online programmer community for more than a decade. She designed the innovative Head First series of programming books, whose adoption of a broad array of teaching methods widened the range of computer users who learned to take full control of their devices, and included the longest-running technology best-seller on Amazon. Sierra’s work has focused on creating skillful users and building sustainable communities of those users, guiding people up the learning curve and advising on how to keep disagreements from sabotaging online groups. She was one of the first community leaders to address and describe in detail how to cultivate and navigate community growth: balancing clear rules with freedom of expression and privacy to support continuous learning. Sierra has devoted the last 20 years to urging others to create more humane software and online services, working to widen the digital world to a larger audience.
“This extraordinary group of winners have all focused on the users, striving to give everyone the access, power, community, and protection they need in order to create and participate in our digital world,” said EFF Executive Director Cindy Cohn. “This group has worked tirelessly to bring to life a future where new technologies don’t compromise privacy or safety, or leave anyone behind. We are so proud to honor them with Pioneer Awards, and we’re deeply grateful for the work they’ve done.”
Awarded every year since 1992, EFF’s Pioneer Awards recognize the leaders who are extending freedom and innovation on the electronic frontier. Previous honorees have included Aaron Swartz, Glenn Greenwald and Laura Poitras, Richard Stallman, and Anita Borg.
Sponsors of the 2015 Pioneer Awards include Adobe, Automattic, Facebook, No Starch Press, and O’Reilly Media.
To buy tickets to the Pioneer Awards:
For more on the Pioneer Awards:
FBI Says It Can’t Find Any Documents Responsive to FOIA Requests Even Though Congress Has Been Briefed For Years
San Francisco—The Electronic Frontier Foundation (EFF) filed a Freedom of Information Act (FOIA) lawsuit against the Department of Justice (DOJ) and the FBI to gain access to documents revealing the government’s plans to use Rapid DNA. The FBI said it found no records responsive to EFF’s FOIA requests, even though it’s been working to roll out Rapid DNA and lobbying Congress to approve nationwide use for more than five years.
Rapid DNA analyzers—laser printer-sized, portable machines that allow anyone to process a DNA sample in as little as 50 minutes—are the newest frontier in DNA collection and profiling in law enforcement. With Rapid DNA, the police can collect a a DNA sample from a suspect, extract a profile, and match that profile against a database in less time than it takes to book someone—and it’s all done by non-scientists in the field, well outside an accredited lab.
“EFF has long been concerned about the privacy risks associated with collecting, testing, storing and sharing of genetic data. The use of Rapid DNA stands to vastly increase the collection of DNA, because it makes it much easier for the police to get it from anyone they want, whenever they want. The public has a right to know how this will be carried out and how the FBI will protect peoples’ privacy,” said Jennifer Lynch, EFF senior staff attorney. ‘’Rapid DNA can’t accurately extract a profile from evidence containing commingled body fluids, increasing the risk that people could be mistakenly linked to crimes they didn’t commit.’’
The FBI has been working with manufacturers for years on a program to develop Rapid DNA and incorporate Rapid DNA profiles into a national DNA database used by crime labs and law enforcement agencies across the country. While some local police stations are already using Rapid DNA, the FBI can’t allow Rapid DNA profiles generated outside accredited laboratories into the database or the Combined DNA Index System (CODIS) until lab validation rules are modified and Congress amends DNA laws—something the agency and Rapid DNA technology makers have been lobbying lawmakers for.
Despite briefing Congress and discussing plans at biometric conferences, the FBI hasn’t disclosed full information about its Rapid DNA project. EFF filed FOIA requests with the FBI seeking documents from 2012 to the present about these plans.
“Incredibly, the FBI told us it found no records responsive to our requests. Even though it has been funding and working with manufacturers to develop the technology, and has a whole webpage devoted to the subject, the FBI said it couldn’t locate a single document about this major effort to use Rapid DNA,” said Lynch. “The FBI shouldn’t be allowed to hide its plans to develop a technology that could have a huge impact on genetic privacy. We are asking a court to order DOJ to turn over documents we requested so we and the communities where Rapid DNA is being deployed can review the program.”
For this complaint:
For more on DNA collection:
Human Rights Watch Battling Illegal Surveillance of Americans’ International Phone Calls
Update: This hearing has been vacated. In an order issued late Thursday, the judge indicated he would decide the government's motion based on the parties' briefs.
Los Angeles - On Monday, August 17, at 1:30 pm, the Electronic Frontier Foundation (EFF) will urge a federal district court in Los Angeles to allow Human Rights Watch to proceed with its lawsuit against the Drug Enforcement Agency (DEA) for illegally collecting records of its telephone calls to certain foreign countries.
As a nonpartisan organization fighting human rights abuses, Human Rights Watch’s work often requires communicating by telephone with its sources around the world. Those sources, who are often victims or witnesses of human rights abuses, often put themselves at risk simply by speaking to an international human rights organization.
Earlier this year, the organization learned from government statements and news reports that the DEA had collected records of HRW’s international calls for over two decades, along with those of millions of other Americans. The DEA’s bulk collection of call records reached into the billions, covering calls to over a hundred countries—occurring without judicial oversight or approval or the public’s knowledge. News reports suggested the DEA’s bulk collection program even served as the model on which the NSA’s call records program was based.
While the DEA’s program began as an effort in the “war on drugs,” it grew to reach far beyond drug prosecutions. News reports further revealed that Americans’ calling records were searched and shared with other law enforcement agencies, including the FBI and the Department of Homeland Security. In fact, the DEA’s massive telephone records collection was revealed in an export restriction prosecution having nothing to do with drugs.
Human Rights Watch filed suit in April, seeking an injunction against any future operation of the program and the destruction of all illegally collected records. The DEA asked the court to dismiss the case in June, claiming that the program was over, so the court need not review it. In the hearing Monday, EFF Staff Attorney Mark Rumold will argue that the case must continue in order to ensure that all of the call records are fully purged from all of the government’s systems.
HRW v. DEA
Monday, August 17
Edward R. Roybal Federal Building and United States Courthouse
255 East Temple Street
Los Angeles, CA 90012-3332
For more on this case:
Browser Add-On Prevents Data Collection from Ads and Other Hidden Trackers
San Francisco - The Electronic Frontier Foundation (EFF) today released Privacy Badger 1.0, a browser extension that blocks some of the sneakiest trackers that try to spy on your Web browsing habits.
More than a quarter of a million users have already installed the alpha and beta releases of Privacy Badger. The new Privacy Badger 1.0 includes blocking of certain kinds of super-cookies and browser fingerprinting—the latest ways that some parts of the online tracking industry try to follow Internet users from site to site.
“It’s likely you are being tracked by advertisers and other third parties online. You can see some of it when it’s happening, such as ads that follow you around the Web that seem to reflect your past browsing history,” said EFF Staff Technologist Cooper Quintin, lead developer of Privacy Badger. “Those echoes from your past mean you are being tracked, and the records of your online activity are distributed to other third parties—all without your knowledge, control, or consent. But Privacy Badger 1.0 will spot many of the trackers following you without your permission, and will block them or screen out the cookies that do their dirty work.”
Privacy Badger 1.0 works in tandem with the new Do Not Track (DNT) policy, announced earlier this week by EFF and a coalition of Internet companies. Users can set the DNT flag—in their browser settings or by installing Privacy Badger—to signal that they want to opt-out of online tracking. Privacy Badger won’t block third-party services that promise to honor all DNT requests.
“With DNT and Privacy Badger 1.0, Internet users have important new tools to make their desires about online tracking known to the websites they visit and to enforce those desires by blocking stealthy online tracking and the exploitation of their reading history,” said EFF Chief Computer Scientist Peter Eckersley, leader of the DNT project. “It’s time to put users back in control and stop surreptitious, intrusive Internet data collection. Installing Privacy Badger 1.0 helps build a leaner, cleaner, privacy-friendly Web.”
To download Privacy Badger 1.0:
For more on the new Do Not Track policy:
EFF Web Portal Provides In-Depth Resources About License Plate Readers, Biometric Collection, and Other High-Tech Surveillance Tools
San Francisco – Responding to a troubling rise in law enforcement’s use of high-tech surveillance devices that are often hidden from the communities where they’re used, the Electronic Frontier Foundation (EFF) today launched the Street-Level Surveillance Project (SLS), a Web portal loaded with comprehensive, easy-to-access information on police spying tools like license plate readers, biometric collection devices, and “Stingrays.’’
The SLS Project addresses an information gap that has developed as law enforcement agencies deploy sophisticated technology products that are supposed to target criminals but that in fact scoop up private information about millions of ordinary, law-abiding citizens who aren’t suspected of committing crimes. Government agencies are less than forthcoming about how they use these tools, which are becoming more and more sophisticated every year, and often hide the facts about their use from the public. What’s more, police spying tools are being used first in low-income, immigrant, and minority communities—populations that may lack access to information and resources to challenge improper surveillance.
“Law enforcement agencies at the federal, state, and local level are increasingly using sophisticated tools to track our cell phone calls, photograph our vehicles and follow our driving patterns, take our pictures in public places, and collect our fingerprints and DNA. But the public doesn’t know much about those tools and how they are used,’’ said EFF Senior Staff Attorney Jennifer Lynch. “The SLS Project provides a simple but in-depth look at how these surveillance technologies work, who makes and uses them, and what kind of data they are collecting. We hope that community groups, advocacy organizations, defense attorneys, and individuals all take advantage of the information we’ve gathered.”
The SLS Project website went live today with extensive information on biometric technologies which collect fingerprints, DNA, and face prints as well as on automated license plate readers (ALPRs)—cameras mounted on patrol cars and on city streets that scan and record the plates of millions of cars across the country. Each topic includes explainers, FAQs, infographics, and links to EFF’s legal work in courts and legislatures. Information about “Stingrays’’—devices that masquerade as cell phone towers and trick mobile phones into connecting with them to track phone locations in real time—drones, and other surveillance technologies will be added in the coming months.
“The public has heard or read so much about NSA spying, but there’s a real need for information and resources about surveillance tools being used by local law enforcement on our home turf. These technologies are often adopted in a shroud of secrecy, but communities deserve to understand these technologies and how they may be violating our rights,’’ said EFF Activist Nadia Kayyali. “The SLS Project is a much-needed tool that can help communities under surveillance start a conversation about how to advocate for limiting or stopping their use.’’
For Street-Level Surveillance Project:
Policy Offers Stronger Privacy Protection and Promotes Advertising Best Practices
San Francisco - The Electronic Frontier Foundation (EFF), privacy company Disconnect and a coalition of Internet companies have announced a stronger “Do Not Track” (DNT) setting for Web browsing—a new policy standard that, coupled with privacy software, will better protect users from sites that try to secretly follow and record their Internet activity, and incentivize advertisers and data collection companies to respect a user’s choice not to be tracked online. The EFF and Disconnect’s partners in this launch are the innovative publishing site Medium, major analytics service Mixpanel, popular ad- and tracker-blocking extension AdBlock, and private search engine DuckDuckGo.
“We are greatly pleased that so many important Web services are committed to this powerful new implementation of Do Not Track, giving their users a clear opt-out from stealthy online tracking and the exploitation of their reading history,” said EFF Chief Computer Scientist Peter Eckersley. “These companies understand that clear and fair practices around analytics and advertising are essential not only for privacy but for the future of online commerce.”
DNT is a preference you can set on Firefox, Chrome, or other Web browsers as well as in the iOS and FirefoxOS mobile operating systems to signal to websites that you want to opt-out of tracking of your online activities. Tracking by advertisers and other third parties is commonplace on the Web today, and typically occurs without the knowledge, permission, or consent of Internet users. You can see evidence of this when ads appear around the Web that are eerily based upon your past browsing habits; meanwhile, the underlying records and profiles of your online activity are distributed between a vast network of advertising exchanges, data brokers, and tracking companies. The new DNT standard is not an ad- or tracker-blocker, but it works in tandem with these technologies.
“The failure of the ad industry and privacy groups to reach a compromise on DNT has led to a viral surge in ad blocking, massive losses for Internet companies dependent on ad revenue, and increasingly malicious methods of tracking users and surfacing advertisements online,” said Disconnect CEO Casey Oppenheim. “Our hope is that this new DNT approach will protect a consumer’s right to privacy and incentivize advertisers to respect user choice, paving a path that allows privacy and advertising to coexist.”
For the full Do Not Track policy:
Democracy.io Streamlines a Complicated System into a Quick and Easy Process
San Francisco - The Electronic Frontier Foundation (EFF) has created a new tool that makes emailing your congressional lawmakers a quick and easy process. Democracy.io simplifies and streamlines the current fractured system for contacting lawmakers, allowing you to message your two senators and your representative from a single website.
“Democracy thrives when the voices of Internet users are heard in Washington. The easier it is for you to reach your member of Congress, the better,” said EFF Activism Director Rainey Reitman. “With Democracy.io, you can send one message to both your senators and your representative right away, instead of tracking down three different forms on three different websites. We are proud to open this tool to the public and increase lawmakers’ awareness of how their constituents really feel.”
At Democracy.io, you enter your home address, and a quick look-up provides the names of your three congressional lawmakers. You then can choose any or all of those lawmakers, and send them whatever message you’d like. Democracy.io follows best practices for protecting the privacy of users, and all of the code is licensed under the AGPL, which means people can create new versions with different features. EFF does not control or influence the messages sent through Democracy.io.
“Being able to contact your elected representatives is a critical component of a healthy democracy. Making sure that it’s a simple and rewarding process should be one of Congress’s priorities, but unfortunately it doesn’t seem to even be on their radar,” said EFF Tech Fellow Sina Khanifar. “Advocacy organizations that can afford it have long had access to tools for delivering bulk constituent messages, but those solutions are expensive for regular citizens. Democracy.io helps to fill in that gap by giving people an easy way to have their voices heard in Washington. Hopefully the tool will also remind lawmakers that they can and should be building sites like these already."
EFF wrote the backend system that delivers the messages to Congress with inspiration from work by the Participatory Politics Foundation. Delivery is made possible by the open source “contact-congress” dataset that was started by the Sunlight Foundation and completed with help from over 100 EFF volunteer web developers. The dataset is now maintained by EFF, the Sunlight Foundation, and Action Network.
Ethiopia Claims that Foreign Governments Have Legal Right to Wiretap Americans
Washington, D.C. - On Tuesday, July 14, at 2 pm, the Electronic Frontier Foundation (EFF) will urge a federal court to allow an American to proceed with his lawsuit against the Ethiopian government for infecting his computer with secret spyware, wiretapping his private calls, and monitoring his family’s every use of the computer for weeks on end.
EFF is representing the plaintiff in this case, who has been given permission by the court to allow him to use his pseudonym Mr. Kidane in order to protect the safety and well-being of his family both in the United States and Ethiopia. The Ethiopian government’s U.S. lawyers have asked to have the case dismissed, claiming that foreign governments have a right wiretap Americans inside their own homes without court oversight, a right that not even the U.S. government claims for itself. EFF Staff Attorney Nate Cardozo will argue Tuesday that Ethiopia must answer in court for the illegal spying on Mr. Kidane. The case is also supported by the law firm of Robins, Kaplan, Miller and Ciresi, LLP.
The spyware that EFF’s experts found on Mr. Kidane’s computer appears to be part of a systemic campaign by the Ethiopian government to spy on perceived political opponents. The malware in this case was a program called FinSpy, surveillance software marketed exclusively to governments by the Gamma Group of Companies. Just recently, leaked documents have shown that a competing spyware company called Hacking Team has also provided covert surveillance software to Ethiopia, which was used to spy on journalists critical to the current government.
Kidane v. Ethiopia
Tuesday, July 14
United States District Court for the District of Columbia
333 Constitution Ave NW
Washington, DC 20001
For more on this case:
Poitras, Filmmaker Behind Snowden Documentary CITIZENFOUR, Searched and Questioned Every Time She Entered U.S. From 2006 to 2012
Washington, D.C. – Academy and Pulitzer Prize Award-winning documentary filmmaker Laura Poitras sued the Department of Justice (DOJ) and U.S. transportation security agencies today demanding they release records documenting a six-year period in which she was searched, questioned, and often subjected to hours-long security screenings at U.S. and overseas airports on more than 50 occasions. The Electronic Frontier Foundation (EFF) is representing Poitras in a Freedom of Information Act (FOIA) lawsuit against the Department of Homeland Security, DOJ, and the Office of the Director of National Intelligence.
“I’m filing this lawsuit because the government uses the U.S. border to bypass the rule of law,” said Poitras. “This simply should not be tolerated in a democracy. I am also filing this suit in support of the countless other less high-profile people who have also been subjected to years of Kafkaesque harassment at the borders. We have a right to know how this system works and why we are targeted.”
Poitras is a professional journalist who won an Academy Award this year for her documentary film “CITIZENFOUR” about NSA whistleblower Edward Snowden, shared in the 2014 Pulitzer for Public Service for NSA reporting, and is a recipient of a MacArthur Foundation “genius” grant. During frequent travel from 2006 to 2012 for work on her documentary films, Poitras was detained at the U.S. border every time she entered the country.
During these detentions, she was told by airport security agents that she had a criminal record (even though she does not), that her name appeared on a national security threat database, and, on one occasion, that she was on the U.S. government’s No Fly List. She’s had her laptop, camera, mobile phone, and reporter notebooks seized and their contents copied, and was once threatened with handcuffing for taking notes during her detention after border agents said her pen could be used as a weapon. The searches were conducted without a warrant and often without explanation, and no charges have ever been brought against Poitras.
After years of targeting by security agents, Poitras last year filed FOIA requests for records naming or relating to her, including case files, surveillance records, and counterterrorism documents. But the agencies have either said they have no records, denying or ignoring her appeals for further searches, or haven’t responded at all to her requests. For example, the FBI, after not responding to Poitras’ FOIA request for a year, said in May it had located only six pages relevant to the request—and that it was withholding all six pages because of grand jury secrecy rules.
“The government used its power to detain people at airports, in the name of national security, to target a journalist whose work has focused on the effects of the U.S. war on terror,” said David Sobel, EFF senior counsel. “In refusing to respond to Poitras’ FOIA requests and wrongfully withholding the documents about her it has located, the government is flouting its responsibility to explain and defend why it subjected a law-abiding citizen—whose work has shone a light on post-9/11 military and intelligence activities—to interrogations and searches every time she entered her country.”
The detentions ended in 2012 after journalist Glenn Greenwald published an article about Poitras’ experiences and a group of documentary filmmakers submitted a petition to DHS protesting her treatment.
“We are suing the government to force it to disclose any records that would show why security officials targeted Poitras for six years, even though she had no criminal record and there was no indication that she posed any security risk,” said Jamie Lee Williams, an EFF attorney and the organization’s Frank Stanton Legal Fellow. “By spurning Poitras’ FOIA requests, the government leaves the impression that her detentions were a form of retaliation and harassment of a journalist whose work has focused on U.S. policy in the post-9/11 world.”
Poitras’ documentary films include the 2006 Oscar-nominated “My Country, My Country”—a story about the Iraq war told through an Iraqi doctor and political candidate in Baghdad who was an outspoken critic of U.S. occupation. Poitras also directed and produced the Emmy-nominated “The Oath,” a 2010 documentary film about Guantanamo Bay prison and the interrogation of Osama bin Laden’s former bodyguard days after 9/11. Poitras’ latest film, “CITIZENFOUR,” about Snowden and NSA mass surveillance, earned her a Director’s Guild of America Award and an Oscar.
For the full complaint:
Federal and State Authorities Withhold Documents About Access to AT&T Phone Data
San Francisco – The Electronic Frontier Foundation (EFF) today filed lawsuits against the U.S. Department of Justice and the California Attorney General’s office demanding records that shed light on a secret drug enforcement program that allows federal and local law enforcement agents to obtain citizens’ phone call records from AT&T.
The ''Hemisphere'' program, which is funded by the Drug Enforcement Administration (DEA) and the White House’s Office of National Drug Control Policy (ONDCP), places AT&T employees within law enforcement agencies to help investigators get quick access to call records stored with the company, according to a New York Times report from 2013. Hemisphere covers all calls passing through an AT&T switch—not just those made by AT&T customers—and includes calls going back to 1987, the Times revealed. Investigators using the program were urged to ''keep the program under the radar'' and use the call records in such a way as to keep Hemisphere’s information ''walled off'' from public scrutiny, according to government documents disclosed by the Times.
EFF filed Freedom of Information Act and Public Records Act requests last year, looking for answers about Hemisphere. But the Justice Department and the California Attorney General released only heavily and improperly redacted records, withholding important information about the program and how it is used by law enforcement. In lawsuits filed in both state and federal court in San Francisco today, EFF asked judges to order the Justice Department and California to turn over the requested records.
''The federal government, specifically the Drug Enforcement Administration, has taken pains to hide its use of Hemisphere, telling police agencies to 'never refer to Hemisphere in any official document,''' said Hanni Fakhoury, EFF senior staff attorney. ''The public has a right to know about this vast phone call records program.''
White House records disclosed by the New York Times revealed that Hemisphere is coordinated in part through the California Attorney General’s Los Angeles Regional Criminal Information Clearing House (LACLEAR), an intelligence support center for Los Angeles drug enforcement activities.
EFF’s request under the California Public Records Act asked LACLEAR for documents about its involvement in Hemisphere, including training materials, contracts between it and federal agencies, and communications about the use of program between LACLEAR and federal and state agencies. However, after a lengthy delay, LACLEAR produced only 99 pages of PowerPoint presentations about training—many of which were redacted in full to hide the names of police squads that used Hemisphere and the law enforcement agencies involved in the Hemisphere request process.
The Justice Department similarly withheld documents, providing only heavily redacted, and essentially worthless, records after EFF filed its FOIA request in February 2014.
''These lawsuits seek transparency over a program that allows law enforcement agencies to tap into a vast phone record database without court oversight,'' said Jennifer Lynch, EFF senior staff attorney. ''The agencies are misusing public records laws to hide information that is crucial to understanding how the Hemisphere program is being used.''
For more on these cases:
‘Dancing Baby’ Case Fights DMCA Takedown Abuse
San Francisco - On Tuesday, July 7, at 9 am, the Electronic Frontier Foundation (EFF) will urge an appeals court in San Francisco to confirm that Internet users—from Ms. Lenz to remix artists to scholars to documentary filmmakers—have real protection against baseless content takedowns.
Lenz v. Universal is often called the “dancing baby” case. It started in 2007, when Stephanie Lenz posted a 29-second video to YouTube of her children dancing in her kitchen, with the Prince song “Let’s Go Crazy” playing on a stereo in the background. Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (DMCA), claiming that the family video infringed the copyright in Prince’s song. EFF sued Universal on Lenz’s behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use. In the hearing at the United States Court of Appeals for the Ninth Circuit in San Francisco on Tuesday, EFF Legal Director Corynne McSherry will tell the court that copyright owners must consider fair use before sending a takedown notice, or face legal liability.
Lenz’s video is back on YouTube as this long-running court battle continues, but the issues at stake are very timely. Earlier this month, a British newspaper tried to use a DMCA notice to take down criticism of a story it had published. Additionally, heated political campaigns—like the upcoming presidential primaries—have historically led to a rash of DMCA takedown abuse, as criticism of politicians often include short clips of campaign appearances in order to make their argument to viewers.
Keker & Van Nest LLP serves as co-counsel on the case.
Lenz v. Universal
Tuesday, July 7
United States Court of Appeals for the Ninth Circuit
James R. Browning U.S. Courthouse
Courtroom 3, 3rd Floor Room 307
95 7th Street,
San Francisco, CA 94103
For the “dancing baby” video:
For more on this case:
U.S. Battle Over Leaked Emails Leads to Threats to ‘Respublika’ Site
San Francisco - Online news publisher Respublika has asked a federal judge in New York to clarify that officials in Kazakhstan can’t use a U.S. court order in a battle over leaked emails to censor news stories that are critical of the Kazakhstan government. The Electronic Frontier Foundation (EFF) is representing Respublika, a longtime target of Kazakhstan intimidation and persecution because of its investigative reporting on President Nursultan Nazarbayev’s regime.
“An American court order is being misused to silence worldwide discussion and debate over a foreign government’s actions,” said EFF Civil Liberties Director David Greene. “For years, Kazakhstan has tried to shut down Respublika and harassed its founders, and we’re asking the judge to put a stop to Kazakhstan’s use of the court’s ruling as another tool in this censorship campaign.”
The case began in March, when Kazakhstan sued dozens of unnamed individuals in a New York district court for allegedly breaking into government computers and stealing thousands of messages sent from Gmail accounts. The judge in the case issued a preliminary injunction, forbidding these unnamed individuals from disseminating, using, or viewing the material.
Respublika, like many news outlets around the world, reported on the emails after others had posted them publicly. But Kazakhstan government attorneys have since sent multiple letters to the newspaper’s web host, demanding the removal of dozens of articles. Earlier this month, Kazakhstan went further, claiming that the court order required that Respublika’s entire site be disabled. The government also subpoenaed Facebook as well as the newspaper’s web host and domain registrar to obtain personal identifying information about the authors and readers of Respublika’s articles. To date, 47 articles have been removed and are no longer available to readers in the United States, Kazakhstan, and around the world.
This abuse and misuse of the court’s order is just the latest in Kazakhstan’s decade-long persecution of Respublika and those associated with it. Respublika has been driven out of Kazakhstan and subjected to an almost constant stream of coordinated DDoS attacks, and its founders have been subject to extreme harassment and intimidation.
Kazakstan is one of two countries still in the running to host the 2022 Winter Olympics. Earlier this week, the New York Times reported on how concerns about free expression and human rights might affect the country’s bid.
“Kazakhstan came to a U.S. court—where the First Amendment protects the publication of material even if a source obtained that material illegally—but it’s flouting our law. Kazakhstan officials are unilaterally deciding to whom the order applies and what the consequences are,” said Jamie Lee Williams, EFF Frank Stanton Legal Fellow. “The Respublika journalists simply did what they are supposed to do: report on information and events that affect people’s lives. Kazakhstan must not be allowed to censor their speech in this way.”
For the full letter to the judge:
Annual Survey Delves Deeper into Practices of Apple, Google, Twitter, and More
San Francisco - Our digital lives are leaving data trails through social networking sites, email providers, Internet service providers, and mobile apps. But which companies fight the hardest to protect their customers from government data grabs of this sensitive information? Today, the Electronic Frontier Foundation (EFF) released its fifth annual “Who Has Your Back” report, charting tech companies’ commitment to the next frontier of user privacy.
“Who Has Your Back” evaluates 24 companies, awarding up to five stars in categories like “tell users about government data requests” and “publicly disclose the company’s data retention policies.” Nine companies earned stars in every category available to them: Adobe, Apple, CREDO, Dropbox, Sonic, Wickr, Wikimedia, Wordpress.com, and Yahoo.
“We entrust countless intimate details about our personal life to digital service providers. Often it’s corporate policies, not legal safeguards, that are our best defense against government intrusion,” said EFF Activism Director Rainey Reitman. “Technology companies must have the strongest possible policies to protect privacy, and we’re impressed that this group of nine has stepped up and met our ambitious new standards.”
This year’s “Who Has Your Back” marks a new era in EFF’s annual report. The best practices that we outlined in earlier years have become tech industry standards. So this year, the first star includes the all the main principles from prior reports rolled into a single category called “Industry-accepted best practices.” Four new categories hold companies to an even higher standard of supporting their users’ privacy.
In the months that EFF has been talking to companies to develop “Who Has Your Back,” there has already been significant improvement in privacy practices. For example, just days ago Amazon released its first-ever transparency report.
But it’s not all good news. For more than a year, EFF has urged Google and Twitter to commit to telling users about government data requests, even when that notice must be delayed due to an ongoing emergency or a gag order, but both companies have yet to improve their policies and earn a star. WhatsApp received only one star despite notice last year from EFF that it was going to be included in “Who Has Your Back” and an acquisition by Facebook that gave it plenty of resources to protect its customers.
“Every day, our digital lives require us to trust the digital services we use more and more, and consumers deserve clear and reliable information about policies and procedures that protect them,” said EFF Staff Attorney Nate Cardozo. “It’s time for all companies to take their users’ privacy seriously and reach the new standards we’ve laid out in ‘Who Has Your Back.’”
For the full report on “Who Has Your Back?”:
Fight Over Music Streaming Site Shows Music Labels’ Overreach
New York – The Electronic Frontier Foundation (EFF) urged a federal court in an emergency hearing and a written filing this week to block the recording industry’s move to force Internet infrastructure companies into becoming copyright police with far-reaching restraining orders.
EFF represents CloudFlare, a service that speeds up websites and protects them from malicious attacks. One of its clients runs a website calling itself Grooveshark, which sprung up after a court shut down the more well known music sharing site Grooveshark. Citing trademark and copyright infringement, a group of record companies including Atlantic, Sony, Universal, and Warner Bros. convinced a New York judge to issue a sealed temporary restraining order. According to the record companies, the order requires service providers of every kind to help take down the new Grooveshark site—even companies like CloudFlare who cannot control their users’ web content or domain names. CloudFlare called EFF to bring the court process into the open and force the recording industry into a fair fight.
“Just because you are providing a service to a website doesn’t mean you should be roped into policing it,” said EFF Staff Attorney Mitch Stoltz. “Copyright holders should not be allowed to blanket infrastructure companies with blocking requests, co-opting them into becoming private trademark and copyright police.”
In the emergency hearing Tuesday, EFF and co-counsel from the firm of Goodwin Procter argued that blocking orders must follow a clear and open legal process, and can’t be directed to companies like CloudFlare. U.S. District Court Judge Alison Nathan ruled at that hearing that the proceedings must continue unsealed. In further briefing yesterday, EFF and Goodwin Procter opposed the restraining order. Judge Nathan is likely to make a decision about whether to target an order at CloudFlare within the next week.
“The record labels may want to stamp out every incarnation of Grooveshark, but a single court order that puts legal responsibilities on the entire Internet is not the way to do it,” said Stoltz.
Garfum Abandons Case Against ‘Vote-For-Your-Favorite’ Online Competitions
Camden, New Jersey – Patent bully Garfum has abandoned its lawsuit against an online photo hobbyist, just one day after a federal judge set the date for a face-off in court against lawyers for the Electronic Frontier Foundation (EFF).
EFF together with Durie Tangri LLP represent Bytephoto.com, which has hosted user-submitted photos and run competitions for the best since 2003. In 2007, a company called Garfum.com applied for a patent on the “Method of Sharing Multi-Media Content Among Users in a Global Computer Network.” The patent takes the well-known concept of a competition by popular vote and applies it to the modern context of generic computer networks, and Garfum claims that it covers the rights to online competitions on social networks where users vote for the winner—despite the fact that courts have ruled that this kind of abstract idea using generic computer technology cannot be patented.
Garfum used this patent to accuse EFF’s client of infringement, filing a federal lawsuit without warning. EFF moved to dismiss the complaint earlier this year, arguing that the junk patent should be declared invalid. But after all the briefing had been completed and just one day after the court scheduled a hearing on the motion to dismiss, Garfum capitulated: it dropped its case with a promise not to sue Bytephoto.com again rather than defend its patent before a judge.
“We’re pleased that Garfum has abandoned its claims against our client. But it’s a travesty that this case was ever filed in the first place,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “Our client began running online ‘favorite photo’ competitions years before this patent was filed. The idea that you could patent this abstract idea, find innocent enthusiasts online and demand settlement money—and then slink away once challenged and before the court issues a ruling—goes against any sense of fair play.”
“Patent bullies count on not having to defend their weak patents in a court of law. They drive up costs with baseless lawsuits and then bow out before getting a decision they don’t like,” said EFF Staff Attorney Vera Ranieri. “So while we are glad our client doesn’t have to worry about Garfum anymore, there’s still a lot of work to do the fight against bad patents.”
Joe Gratz of the law firm Durie Tangri LLP and Frank Corrado of Barry, Corrado & Grassi, PC are co-counsel with EFF.
For more on this case:
Copyright Office to Hear Public Testimony in Los Angeles and Washington, D.C.
Los Angeles and Washington, D.C. - Experts from the Electronic Frontier Foundation (EFF) will testify at public hearings held by the U.S. Copyright Office this week and next, urging officials to grant and expand critical exemptions to the Digital Millennium Copyright Act (DMCA). The exemptions will secure the right to access and tinker with devices in a variety of ways, from jailbreaking their tablets, to repairing their cars, to playing old video games and making remix videos.
EFF Staff Attorney Kit Walsh will testify Tuesday that legal restrictions on tinkering with the software in your car are preventing people and businesses from repairing and customizing vehicles as well as conducting needed security and safety research. Walsh will tell a Copyright Office panel that restricting access to onboard computers in cars, trucks, and tractors drives up costs for vehicle owners and stifles innovation. On Wednesday, May 20, EFF Staff Attorney Mitch Stoltz will urge the panel to grant DMCA exemptions to allow modification of older video games abandoned by manufacturers. On Thursday, May 21, Stoltz will ask the panel to renew exemptions for jailbreaking phones and tablets to run operating systems and applications of their choosing, even if those are not specifically authorized by device manufacturers.
The DMCA hearings continue next week at the Library of Congress in Washington, D.C. On May 28, EFF Legal Director Corynne McSherry will testify in support of creating fair use remixes of videos from locked sources, including DVDs and Blu-ray discs, as well as from online streaming sites.
EFF's testimony is part of the Copyright Office's rulemaking process, convened every three years to consider exemptions to the DMCA's prohibitions on "circumventing" digital rights management (DRM) and other “technical protection measures" used to restrict access to copyrighted works. While the DMCA’s circumvention ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. EFF has filed petitions with the Copyright Office showing how these restrictions interfere with consumers’ rights to tinker with goods they own, from autos to smartphones. In past years, EFF successfully petitioned for the right to jailbreak your phone and use DVD video for fair use remixes.
Public Hearings on DMCA Rulemaking
WHEN AND WHERE:
May 19 - 10:45 am – Vehicle software (security and safety research)
2 pm – Vehicle software (diagnosis, repair, and modification)
May 20 - 1:45 pm – Abandoned video games
May 21 - 10:15 am – Jailbreaking mobile phones
UCLA School of Law, Room 1314
385 Charles E. Young Drive East
Los Angeles, CA 90095
May 28 - 1:45 PM – Remix videos
Mumford Room, James Madison Building of the Library of Congress
101 Independence Ave. SE.
Washington, D.C. 20540
For the full hearing agenda:
For more on EFF’s exemption requests:
Appeals Court Decision Should Push Congress to Strengthen Protections Against Mass Surveillance, EFF Says
San Francisco - A federal appeals court today ruled that the NSA's bulk collection of phone records is illegal, saying Congress didn't authorize collection of a ''staggering'' amount of information on Americans. The decision by a three-judge panel of the U.S.Court of Appeals for the 2nd Circuit overturns a judge's ruling dismissing ACLU's challenge to Section 215 of the Patriot Act, ACLU v. Clapper.
''This is a great and welcome decision and ought to make Congress pause to consider whether the small changes contained in the USA Freedom Act are enough,'' said Cindy Cohn, executive director of Electronic Frontier Foundation (EFF). ''The 2nd Circuit rejected on multiple grounds the government's radical reinterpretation of Section 215 that underpinned its secret shift to mass seizure and search of Americans' telephone records. While the court did not reach the constitutional issues, it certainly noted the serious problems with blindly embracing the third-party doctrine—the claim that you lose all constitutional privacy protections whenever a third-party, like your phone company, has sensitive information about your actions."
"Now that a court of appeal has rejected the government's arguments supporting its secret shift to mass surveillance, we look forward to other courts—including the Ninth Circuit in EFF's Smith v. Obama case—rejecting mass surveillance as well," said EFF Legislative Analyst Mark Jaycox. "With the deadline to reauthorize section 215 looming, we also call on Congress to both expressly adopt the interpretation of the law given by the court and to take further steps to rein in the NSA and reform the Foreign Intelligence Surveillance Court."
U.S. Trade Regulators’ Criticism of Other Nations’ IP Practices is Flawed, Biased
San Francisco – Overly broad intellectual property (IP) laws in Russia, Colombia, and Pakistan—which U.S. trade regulators say aren’t tough enough—stifle access to innovation and threaten artists, students, and creators around the globe with prison, censorship, and state prosecution, the Electronic Frontier Foundation (EFF) said in a new report released today.
EFF’s “Special 404 Report” is a response to the “Special 301 Report”—a deeply flawed annual assessment of international intellectual property rights policies released by the Office of the U.S. Trade Representative (USTR) today. The Special 301 Report is used to pressure countries to adopt IP laws supported by some powerful business interests.
In a first-of-its-kind analysis countering the USTR’s “name and shame” tactics, EFF demonstrates how the Special 301 Report paints a one-sided picture of IP rights and fails to disclose the damaging results of draconian IP policies. Examples include a human rights activist in Russia who was targeted by prosecutors using criminal copyright law, a biologist in Colombia who faces prison for sharing research, and students in Pakistan who struggle to exercise their rights under local law to study academic papers.
“The Special 301 Report is built on an opaque process that echoes the desires of certain members of private industry, like Hollywood rights holders,” said Jeremy Malcolm, EFF senior global policy analyst. “It’s meant to push countries to adopt stiffer IP laws, even if such laws aren’t in the best interests of the citizens of that country. Our report shows how, in countries targeted by the USTR report, stringent intellectual property laws have had shameful and frightening consequences.’’
EFF’s 404 report—named after the error code that appears on the web to show browsers that something is missing—features case studies from Canada, Chile, Pakistan, Romania, Colombia, and Russia. In addition to showing the chilling effects of copyright policies that the Special 301 Report condemns as not tough enough, the 404 report also highlights how flexible fair use interpretations can benefit communities, culture, and the economy. Additionally, EFF covers flaws in the USTR report, including lack of balance, questionable legal basis, lack of set criteria for analyzing copyright policies, and exclusion of a means by which countries can challenge findings.
“Our report puts a human face on the victims of defective IP policy, and tells the story of Diego Gomez, a masters student in Colombia who could be jailed and face huge fines after the government criminally prosecuted him for sharing an academic paper on Scribd,’’ said Maira Sutton, EFF global policy analyst. “Countries around the globe should be skeptical when considering the recommendations of the USTR Special 301 Report and push for fair use and open access when adopting and enforcing IP laws.”
For the full report visit:
Ruling from USPTO Invalidates All Claims Used to Threaten Podcasters
San Francisco - The U.S. Patent and Trademark Office (USPTO) invalidated key claims in the so-called “podcasting patent” today after a petition for review from the Electronic Frontier Foundation (EFF)—a decision that significantly curtails the ability of a patent troll to threaten podcasters big and small.
“We’re grateful for all the support of our challenge to this patent. Today is a big victory for the podcasting community” said EFF Staff Attorney Daniel Nazer, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. “We’re glad the Patent Office recognized what we all knew: ‘podcasting’ had been around for many years and this company does not own it.”
The “podcasting patent” became big news in 2013, when a company called Personal Audio, LLC, began demanding licensing fees from podcasters including comedian Adam Carolla and three major television networks. Personal Audio doesn’t do podcasting itself, but instead used its patent to claim infringement and collect payouts from actual creators.
In petitions filed with Patent Office, EFF showed that Personal Audio did not invent anything new before it filed its patent application, and, in fact, other people were podcasting for years previously. Earlier examples of podcasting include Internet pioneer Carl Malamud's "Geek of the Week" online radio show and online broadcasts by CNN and the Canadian Broadcasting Corporation (CBC).
“We have a lot to celebrate here,” said EFF Staff Attorney Vera Ranieri. “But unfortunately, our work to protect podcasting is not done. Personal Audio continues to seek patents related to podcasting. We will continue to fight for podcasters, and we hope the Patent Office does not give them any more weapons to shake down small podcasters.”
EFF partnered with attorneys working pro bono and the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society to craft the petition for review with the USPTO.
For the full decision on the Personal Audio “podcasting patent”:
EFF Lawsuit Challenges Drug Enforcement Administration Surveillance of International Call Records
Los Angeles — Human Rights Watch, a nonpartisan organization that fights human rights abuses across the globe, filed suit against the U.S. Drug Enforcement Administration late Tuesday for illegally collecting records of its telephone calls to certain foreign countries as part of yet another government bulk surveillance program. The group is represented by the Electronic Frontier Foundation (EFF), which has launched a series of legal challenges against unconstitutional government surveillance.
“The DEA’s program of untargeted and suspicionless surveillance of Americans’ international telephone call records—information about the numbers people call, and the time, date, and duration of those calls—affects millions of innocent people, yet the DEA operated the program in secret for years,’’ said EFF Staff Attorney Nate Cardozo. “Both the First and Fourth Amendment protect Americans from this kind of overreaching surveillance. This lawsuit aims to vindicate HRW’s rights, and the rights of all Americans, to make calls overseas without being subject to government surveillance.”
The DEA disclosed the existence of its surveillance for the first time in January, after a federal judge ordered the government to reveal more information about the program. The agency made the disclosure in a criminal case against a man accused of violating export restrictions on goods to Iran. In a declaration filed in the case, a DEA agent described the then-secret program of collecting telephone records of calls made from the U.S. to “designated foreign countries’’ that are connected with international drug trafficking. The declaration revealed that DEA relied on administrative subpoenas to amass the database of Americans’ call records. The DEA obtained the records without judicial oversight or approval.
News reports say the program, run by the DEA’s special operations division, began its bulk collection in the 1990s, using the collected records to create a database for domestic criminal probes. The information was shared with other law enforcement agencies, including the FBI and the Department of Homeland Security for reasons unrelated to drug trafficking, media reports said. Although the DEA has indicated the program was “suspended” in 2013, this suit seeks to ensure the program is permanently terminated, that it cannot restart, and that all of HRW’s illegally collected records have been purged from all government systems.
Human Rights Watch and its staff work regularly on issues in countries linked to drug trafficking, communicating with victims or witnesses to human rights abuses.
“Human Rights Watch often works with people in dire circumstances around the world. Our sources are sometimes in life or death situations, and speaking out can make them a target,” said Dinah PoKempner, general counsel of Human Rights Watch. “Who we communicate with and when we communicate with them is often extraordinarily sensitive—and it’s information that we would never turn over to the government lightly.”
“The NSA isn’t the only federal agency collecting Americans’ call records in bulk,” said EFF staff attorney Mark Rumold. “The DEA’s program is yet another example of federal agencies overreaching their surveillance authority in secret. We are asking the court to require the government to destroy the records it illegally collected no matter where they are held, and to declare—once and for all—that bulk collection of Americans’ records is unconstitutional.’’
EFF also represents plaintiffs in First Unitarian v. NSA, a case filed in 2013; Jewel v. NSA, a class action case filed in 2008; and Smith v. Obama, a lawsuit from an Idaho emergency neonatal nurse. Those lawsuits challenge NSA programs of dragnet surveillance of millions of ordinary Americans.
For the full complaint in Human Rights Watch v DEA:
EFF Staff Attorney
EFF Staff Attorney
Human Rights Watch
Human Rights Watch
New 'Best Practice' Roadmap to Protect Rights and Promote Innovation
Manila - An international coalition launched the “Manila Principles for Intermediary Liability” today—a roadmap for the global community to protect online freedom of expression and innovation around the world.
“All communication across the Internet is facilitated by intermediaries: service providers, social networks, search engines, and more. These services are all routinely asked to take down content, and their policies for responding are often muddled, heavy-handed, or inconsistent. That results in censorship and the limiting of people’s rights,” said Electronic Frontier Foundation (EFF) Senior Global Policy Analyst Jeremy Malcolm, who helped spearhead the principles. “Our goal is to protect everyone’s freedom of expression with a framework of safeguards and best practices for responding to requests for content removal.”
EFF, Centre for Internet Society India, Article 19, and other global partners unveiled the principles today at RightsCon, a major international conference on the Internet and human rights held this week in Manila. The framework outlines clear, fair requirements for content removal requests and details how to minimize the damage a takedown can do. For example, if content is restricted because it’s unlawful in one country or region, then the scope of the restriction should be geographically limited as well. The principles also urge adoption of laws shielding intermediaries from liability for third-party content, which encourages the creation of platforms that allow for online discussion and debate about controversial issues.
“People ask for expression to be removed from the Internet for various reasons, good and bad, claiming the authority of myriad local and national laws. It’s easy for important, lawful content to get caught in the crossfire,” said Jyoti Panday from the Centre for Internet and Society India. “We hope these principles empower everyone—from governments, to intermediaries, to the public—to fight back when online expression is censored.”
The principles and supporting documents can be found online at https://www.manilaprinciples.org, where other organizations and members of the public can also express their own endorsement of the principles.
California Court of Appeal to Hear Oral Arguments in Public Records Lawsuit
Los Angeles - Electronic Frontier Foundation (EFF) Senior Staff Attorney Jennifer Lynch will argue the public has a right to know how Los Angeles police are tracking their locations with automatic license plate readers (ALPRs) at a hearing before the California Court of Appeal in Los Angeles on Wednesday.
Automatic license plate readers include cameras mounted on patrol cars and at fixed locations, such as street lights, that collect the license plate numbers of every car that comes into view, along with the time, date, and location of the plate scan. In the aggregate, these data points have the potential to reveal personal information about drivers, such as where they live, where they work, what doctors they visit, and where they worship.
Since May 2013, EFF and the ACLU Foundation of Southern California have been fighting in court to obtain one week's worth of raw data collected by ALPR systems operated by the Los Angeles Police Department and Los Angeles County Sheriff's Department in an effort to shine light on this privacy-invasive technology. In October 2014, EFF appealed a lower court ruling that found the police agencies did not have to release the data under the California Public Records Act.
What: Oral Arguments in American Civil Liberties Union Foundation of Southern California et al .v. Superior Court of Los Angeles County
Who: Jennifer Lynch, EFF Senior Staff Attorney
Date: Wed., March 11, 2015 Time: 1:30 pm
Where: California 2nd District Court of Appeal, Division 3
Ronald Reagan State Building
300 S. Spring Street 2nd Floor, North Tower
Los Angeles, CA 90013
EFF and ACLU were supported by amicus briefs filed by media organizations and transparency groups, including the Northern California Chapter of the Society of Professional Journalists, Reporters Committee for Freedom of the Press, Californians Aware, California Newspaper Publishers Association, Los Angeles Times, and the McClatchy Company.
For EFF's appeal: https://www.eff.org/document/alpr-records-appeal-eff-aclu-v-lapd-lasd
For more information: https://www.eff.org/foia/automated-license-plate-readers
Senior Staff Attorney
Electronic Frontier Foundation
Lawmakers Must Reform Flawed System that Enables Demand Letter Abuse
Washington, D.C. - Electronic Frontier Foundation (EFF) Staff Attorney Vera Ranieri will testify Thursday at a congressional hearing on patent demand letters. Lawmakers will consider what they should do to reform the flawed patent system, which currently allows unscrupulous patent assertion entities, or trolls, to use unfair and deceptive demand letters to extort undeserved settlements from legitimate businesses.
Armed with vague and overbroad patents that never should have issued, patent trolls pressure small businesses to pay unjustifiable licensing fees. Businesses receiving these demand letters often lack the resources to fight back or to coordinate with others faced with similar demands. In her testimony Thursday, Ranieri will urge Congress to enact measures to protect small businesses from abusive and deceptive demand letters, including enacting disclosure requirements that would help both lawmakers and the public to understand the damage patent trolls do to America's economy.
Thursday's testimony is part of EFF's long-running activism against bad patents and abuse of the patent system. Earlier this week, EFF released its “Defend Innovation” whitepaper, explaining two-and-a-half years' worth of research on the challenges facing innovators under the current patent regime, along with concrete suggestions of measures policymakers should take in the coming year.
The patent demand letter hearing is scheduled to be webcast at http://energycommerce.house.gov/hearings.
WHAT: Congressional hearing: "Update: Patent Demand Letter Practices and Solutions" House Committee on Energy and Commerce, Subcommittee on Commerce, Manufacturing, and Trade
EFF Staff Attorney Vera Ranieri
Thursday, February 26
10:15 am ET
2322 Rayburn House Office Building
For the Defend Innovation whitepaper:
Electronic Frontier Foundation
Media Relations Director
Electronic Frontier Foundation
New ‘Defend Innovation’ Whitepaper Addresses Vague Software Patents, Patent Trolls
San Francisco - The U.S. patent system is in crisis, but there are clear steps Congress and the White House can take to mitigate the impact of vague patents, patent trolls, and a weak legal process to protect competition and creativity, the Electronic Frontier Foundation (EFF) explains in a new report released today.
The "Defend Innovation" whitepaper is the culmination of two-and-a-half years worth of research, drawing from the stories, expertise, and ideas of more than 16,500 people who agree that the current patent system is broken. Split into two parts, the report covers both the challenges facing innovators under the current patent regime, as well as concrete measures that policymakers must take in the coming year.
"Fixing the current patent mess will require concerted action, but it can be done," EFF Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents Daniel Nazer said. "Now more than ever, there is both the need and the will for real and lasting reform."
In the first part of the report, EFF provides in-depth analysis of how overbroad and vague software patents, combined with an insufficient review process by the U.S. Patent and Trademark Office, have hindered rather than supported innovation. This broken regime has created an environment ripe for abuse by patent trolls, also known as "patent assertion entities," that sue or threaten to sue businesses for patent infringement, even though these entities don't make or sell a product themselves. The explosion in software patents has also led to a patent arms race, in which companies acquire broad patents for defensive purposes.
"The U.S. Patent and Trademark Office is issuing far too many weak and overbroad patents, particularly on software," EFF Staff Attorney Vera Ranieri said. "Instead of promoting innovation, these patents become hidden landmines for companies that bring new products to market."
In the second part of the report, EFF prescribes six legislative reforms that would begin to fix the patent system. These include:
- Ensuring there are inexpensive and efficient tools for challenging the validity of issued patents
- Passing a comprehensive patent reform bill, such as the Innovation Act
- Ending the Federal Circuit's exclusive jurisdiction over patent cases
- Passing legislation to discourage bad actors from sending frivolous demand letters
In addition, EFF is calling on private companies to adopt alternative patent licensing schemes that can help prevent patent abuse.
"All three branches of government, as well as individuals and companies, have a part to play when it comes to patent reform," EFF Activist Adi Kamdar said. "Right now, we need legislation that clamps down on litigation abuse by patent trolls and bad actors, and empowers those on the defensive end of frivolous lawsuits to fight back swiftly and cheaply."
The "Defend Innovation" report is one part in EFF's multifaceted campaign to reform the patent system, which also includes the website TrollingEffects.org, the "Stupid Patent of the Month" blog series, and legal effort to invalidate the so-called "podcasting patent."
For the full report visit: https://www.eff.org/document/defend-innovation-how-fix-our-broken-patent-system
For more information on EFF's Defend Innovation project: https://defendinnovation.org
Electronic Frontier Foundation
Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
New Brief Urges Justices to Protect Citizens from Warrantless Analysis of Genetic Material
San Francisco - People have a Fourth Amendment right to privacy when it comes to their genetic material, the Electronic Frontier Foundation (EFF) argues in an amicus brief filed this week with the Supreme Court of the United States.
EFF is asking the Supreme Court to hear arguments in Raynor v. State of Maryland, a case that examines whether police should be allowed to collect and analyze "inadvertently shed" DNA without a warrant or consent, such as swabbing cells from a drinking glass or a chair. EFF argues that genetic material contains a vast amount of personal information that should receive the full protection of the Constitution against unreasonable searches and seizures.
"As human beings, we shed hundreds of thousands of skin and hair cells daily, with each cell containing information about who we are, where we come from, and who we will be," EFF Senior Staff Attorney Jennifer Lynch said. "The court must recognize that allowing police the limitless ability to collect and search genetic material will usher in a future where DNA may be collected from any person at any time, entered into and checked against DNA databases, and used to conduct pervasive surveillance."
Glenn Raynor's genetic material was collected and tested without his knowledge or consent after he agreed to an interview at a police station as part of a criminal investigation. The police didn't have probable cause to arrest Raynor, and he refused to provide a DNA sample. After he left the station, police swabbed the armrest of the chair where he had been sitting to collect his skin cells without his knowledge. The police then extracted a DNA profile from the cells and used it to connect him to the crime. The Maryland Court of Appeals ruled that this collection was lawful, and Raynor petitioned the Supreme Court for review. EFF's brief supports Raynor's petition.
The sophistication and speed of DNA analysis technology is advancing exponentially as the costs of the technology drop. These advances, EFF argues, raise significant questions for privacy and civil liberties. DNA can reveal sensitive personal health information and can allow police to identify a person's relatives, turning family members into inadvertent "genetic informants" on each other. Some researchers have also postulated that DNA can determine race, sexual orientation, intelligence, and even political predispositions.
"Law enforcement should not be able to amass giant databases of genetic material they find lying around," EFF Senior Staff Attorney Hanni Fakhoury said. "The Supreme Court should review this case and consider it within the context of emerging technologies that could significantly affect the privacy rights of every American."
For EFF's amicus brief:
Senior Staff Attorney
Electronic Frontier Foundation
EFF’s Clients’ Identities Must Remain Secret, But Still Speak Out About Unconstitutional Gag Orders
San Francisco - Two companies who must remain anonymous about their fight against secret government demands for information known as national security letters (NSLs) are backing Twitter's lawsuit over its rights to publish information about NSLs it may have received. The companies—a telecom and an Internet company—are represented by the Electronic Frontier Foundation (EFF).
Twitter filed its suit in October, saying users deserved to know certain basic facts about NSLs that the government did or did not serve on the social media company. NSLs—issued by the federal government but not approved by a judge—almost always contain a gag order barring the companies from notifying their customers or the public that any demands have been made.
The companies represented by EFF also want to go public with some details of their fights against NSLs, including their corporate identities and what they have done to protect their customers from unreasonable collection of information. In an amicus brief filed today, they argue that the gag orders are an unconstitutional prior restraint on free speech and a serious infringement of their First Amendment rights. However, the government continues to maintain that even identifying EFF's clients as having received an NSL might endanger national security.
"The Supreme Court as well as courts across the land have recognized that a prior restraint—preventing speech in the first instance instead of imposing a penalty after the speech—is a serious and dangerous step," said EFF Legal Fellow Andrew Crocker. "Yet with NSLs, we have prior restraints imposed at the government's whim, without any judicial oversight or review. Our clients want to talk about their experience with these NSLs, but the government is unconstitutionally shielding itself from any criticism or critique of their procedures."
In 2013, a federal district court judge in San Francisco agreed with EFF and its clients that the NSL provisions were unconstitutional, and barred any future NSLs and accompanying gag orders. That ruling was stayed pending appeal, however, and the district court has subsequently enforced additional NSLs while EFF is arguing the case in the United States Court of Appeals for the Ninth Circuit.
"The district court in our case against national security letters was right—the First Amendment forbids the FBI from gagging service providers from openly discussing such invasive, secretive, and unaccountable activities," said EFF Deputy General Counsel Kurt Opsahl. "On behalf of our clients, we are asking this court to reach the same conclusion, and allow the public to get information they need about law enforcement activities."
For the full brief in Twitter v. Holder:
For more on NSLs:
Deputy General Counsel
Electronic Frontier Foundation
Electronic Frontier Foundation
EFF Asks Court to Invalidate Junk Patent on 'Vote-for-Your-Favorite' Online Competitions
San Francisco - The Electronic Frontier Foundation (EFF), together with Durie Tangri LLP, is defending a photo hobbyist against an outrageous patent suit from a company that claims to hold the rights to online competitions on social networks where users vote for the winner.
“It’s part of our job to identify stupid patents and to try to get rid of them, and this is one of the silliest I have ever seen,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “Our client has been running ‘vote-for-your-favorite-photo’ polls for years, just for fun and the love of photography. The idea that you could patent this abstract idea—and then demand a settlement to go away—goes against both patent law and common sense.”
EFF’s client runs Bytephoto.com, which has hosted user-submitted photos and run competitions for the best since 2003. In 2007, a company called Garfum.com applied for a patent on the “Method of Sharing Multi-Media Content Among Users in a Global Computer Network.” The patent, U.S. Pat. No. 8,209,618, takes the well-known concept of a competition by popular vote and applies it to the modern context of generic computer networks—despite the fact that courts have ruled that this kind of abstract idea using generic computer technology cannot be patented.
In September of last year, Garfum used this patent to accuse EFF’s client of infringement, and filed suit. In the motion to dismiss the complaint, EFF argues that the patent should be declared invalid.
“Patents like this improperly interfere with the ability of people to use the Internet to do things they’ve been doing in the analog world for generations. Here, this patent is interfering with the age-old tradition of like-minded enthusiasts getting together to celebrate their hobbies,” said EFF Staff Attorney Vera Ranieri. “Demanding a payout for infringement on an obviously bad patent like this one isn’t just unfair. It acts as a chilling effect against those who would want to use the Internet to expand their community.”
“Patent bullies sue with weak patents and pick on defendants that can’t afford to prove their innocence,” said Nazer. “We’re glad we can help our client fight back against Garfum’s abuse.”
Joe Gratz of the law firm Durie Tangri LLP and Frank Corrado of Barry, Corrado & Grassi, PC are co-counsel with EFF.
For the full motion to dismiss:
For more on this case:
Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
Electronic Frontier Foundation
Justice Department Must Provide Records of Aircraft-mounted Cell Tower Simulators
San Francisco - The Electronic Frontier Foundation (EFF) today filed a Freedom of Information Act (FOIA) lawsuit to shine light on the U.S. Marshals Service's (USMS) use of small aircraft mounted with controversial cell-phone tracking systems.
The Wall Street Journal revealed last year that the Marshals have been flying small, fixed-wing Cessna planes mounted with IMSI catchers—devices that emulate cell phone towers and are able to capture the locational data of tens of thousands of cell phones during a single flight. The planes—in the air since 2007—reportedly were based out of five metropolitan airports and shared by multiple agencies within the U.S. Department of Justice, even as sources within the agency questioned the legality of the program.
In the press, IMSI catchers are also known as "stingrays," a name taken from the "Stingray II" device manufactured by Harris Corporation, or "dirtboxes," a nickname for Boeing subsidiary Digital Receiver Technology's "DRT" devices. Across the country, the Justice Department has intervened in local public records battles to prevent the release of information about these technologies, employing tactics such as signing nondisclosure agreements with state and local law enforcement agencies, seizing records held by those agencies, and withholding key pieces of information about the technology from judges and criminal defendants.
A week after the Wall Street Journal story kicked off a media firestorm, EFF filed a comprehensive FOIA request with Justice Department and FBI over the USMS program, seeking a wide variety of records, including policies, procedures, training materials, communications about the legality of the program, and documentation of each use of the spy planes. As of this filing, the Justice Department has produced no records in response to the request or offered a timeline for release of the documents.
"These devices pose obvious privacy concerns, but the government has been opaque about its use of stingrays,” EFF Legal Fellow Andrew Crocker said. “It's time to do away with the secrecy."
For more information and documents related to the suit, visit:
Electronic Frontier Foundation
Senior Staff Attorney
Electronic Frontier Foundation
Copyright Office to Consider EFF’s Exemption Requests under Section 1201 of the Digital Millennium Copyright Act
San Francisco - The Electronic Frontier Foundation (EFF) filed petitions with the U.S. Copyright Office seeking to keep users who remix DVD content or jailbreak their devices from losing their legal safe harbors and to establish new rights for those who need to circumvent "access control" or "digital rights management" (DRM) technologies for activities such as conducting security research, repairing cars, and resuscitating old video games. The petitions were submitted as part of the complex, triennial rulemaking process that determines exemptions from Section 1201 of the Digital Millennium Copyright Act (DMCA).
With the passage of the DMCA in 1998, Congress created "anti-circumvention" measures, ostensibly designed to prevent people from undermining DRM for purposes of copyright infringement. Recognizing that the law could impede lawful and important uses of copyrighted works, Congress included a provision in which the Copyright Office and Librarian of Congress are tasked with deciding which activities should and should not be exempted every three years through a complicated legal process.
The rulemaking process allows organizations like EFF to fight for the rights that digital businesses and consumers should already have. Even when petitions are successful, groups such as EFF still need to fight for each exemption to be reinstated each cycle.
In the 2015 petitions, EFF focuses on these uses:
- Conducting security and safety research and performing repairs and customization on vehicles, where access to onboard computers is typically restricted (https://eff.org/r.knqu and https://eff.org/r.jb4u)
- Creating fair use remixes of videos from locked sources, including DVDs and Blu-ray discs, as well as from online streaming sites (https://eff.org/r.bytr)
- Modifying older video games that require a centralized authentication server, after that server has been taken offline (https://eff.org/r.7vmq)
"The DMCA shouldn't keep vehicle owners from looking under the hood," said Staff Attorney Kit Walsh, lead drafter of the petitions relating to vehicles. "We all benefit when independent repair shops have the knowledge they need to compete, when experts are able to check for safety issues, and when enthusiasts can come up with car mods and share their knowledge with the world."
This rulemaking is the fifth held by the Copyright Office, and the fourth time EFF has fought for exemptions. In 2006, EFF did not participate and instead focused on revealing how ineffective and burdensome the process is for consumers, innovators, repairers, and creators.
"Section 1201 of the DMCA has essentially given the Librarian of Congress control over what we can and can't do with our own electronic devices," EFF Staff Attorney Mitch Stoltz, lead drafter of the jailbreaking petitions. "The DMCA was supposed to protect against copyright infringement, but the law, including the labyrinthine exemption process, chills all kinds of lawful activities completely unrelated to infringement."
Opponents to the exemptions have 45 days to file responses, after which EFF will have another 30 days to provide counter-replies. After that, the Copyright Office is expected to issue its recommendations in the fall, with the Librarian of Congress making final decisions.
In January, EFF separately launched the Apollo 1201 Project, in which author and digital-rights champion Cory Doctorow will work with EFF to repeal laws protecting DRM, assist EFF with DRM-related litigation, and partner with industry to develop viable, legal alternatives to digital restrictions.
EFF's remix petition was drafted and co-submitted with the Organization for Transformative Works. EFF’s remaining petitions received invaluable assistance from the NYU Technology Law & Policy Clinic, attorney Marcia Hofmann, and former EFF intern Kendra Albert.
For more information on the 2015 rulemaking, visit:
Media Relations Coordinator
Electronic Frontier Foundation
Citizens Have a Right to Challenge Laws That Violate the Fourth Amendment
San Francisco - The Electronic Frontier Foundation (EFF) today filed an amicus brief with the U.S. Supreme Court in a challenge brought by hotel owners against a Los Angeles city ordinance that allows police to access guest registers without consent, warrant, or other legal process. Supporting the hotel owners, EFF argues that people must have the right to challenge surveillance laws like these on Fourth Amendment grounds, even before police have used the law to conduct a suspicionless search.
"In an era of pervasive surveillance, the ability to challenge overbroad laws that invade privacy is more important than ever," Senior Staff Attorney and Adams Chair for Internet Rights Lee Tien said.
Central to City of Los Angeles v. Patel is a city ordinance requiring hotel operators to retain certain guest registry information, which they must make available to police officers on demand. Hotel operators aren't allowed to challenge requests for guest information in court in advance and can be punished with a jail or fine if they refuse to comply.
The U.S. Court of Appeals for the Ninth Circuit found that the ordinance violates the Fourth Amendment: individuals subject to an "administrative search"—a kind of warrantless, suspicionless search that may be performed for reasons unrelated to criminal investigations—must be allowed to object in court before they can be punished for resisting the requests. However, a dissenting opinion argued that not only does the Los Angeles ordinance satisfy the Fourth Amendment, but the Constitution does not allow the hotel owners to challenge the law until the government actually uses the law to conduct a warrantless search against them.
EFF's brief addresses the latter question, arguing that the Fourth Amendment must allow "facial" challenges to laws that authorize warrantless searches.
"There are many reasons why this is the right rule," EFF Legal Fellow Andrew Crocker said. "Facial challenges preserve individuals' constitutional rights and they guard against laws that would chill individuals' protected Fourth Amendment activity."
The Supreme Court will hear oral arguments in Patel on March 3, 2015. A recording of the argument should be available shortly after that.
For EFF's brief: https://www.eff.org/document/eff-amicus-los-angeles-v-patel
For more information on the case: https://www.eff.org/cases/city-los-angeles-v-patel
Media Relations Coordinator
Electronic Frontier Foundation