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:
https://www.eff.org/document/9th-circuit-opinion-lenz

For more on this case:
https://www.eff.org/cases/lenz-v-universal

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.’’

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:
https://www.eff.org/document/rapid-dna-foia-complaint-0

For more on DNA collection:
https://www.eff.org/foia/dna-collection

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:
https://www.eff.org/privacybadger

For more on the new Do Not Track policy:
https://www.eff.org/dnt-policy

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:
https://www.eff.org/sls

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:
https://www.eff.org/document/poitras-foia-complaint

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:
https://eff.org/cases/hemisphere

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:
https://www.eff.org/document/letter-judge-ramos

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.

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.

WHAT:

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:
http://copyright.gov/1201/2015/Final_1201_hearing_agenda_20150507.pdf

For more on EFF’s exemption requests:
https://www.eff.org/deeplinks/2015/05/eff-filings-copyright-office-highlight-unintended-consequences-dmca

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:
https://www.eff.org/special-404

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:
https://www.eff.org/document/hrw-v-dea-complaint

Contact:

Nate Cardozo
EFF Staff Attorney
nate@eff.org

Mark Rumold
EFF Staff Attorney
mark@eff.org

Dinah PoKempner
Human Rights Watch
pokempd@hrw.org

Cynthia Wong
Human Rights Watch
wongc@hrw.org

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

Contacts:

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

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

Contacts:

Adi Kamdar
   Activist
   Electronic Frontier Foundation
   adi@eff.org

Daniel Nazer
   Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents
   Electronic Frontier Foundation
   daniel@eff.org

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:
https://www.eff.org/document/amicus-brief-26

For more on NSLs:
https://www.eff.org/issues/national-security-letters

Contacts:

Kurt Opsahl
   Deputy General Counsel
   Electronic Frontier Foundation
   kurt@eff.org

Andrew Crocker
   Legal Fellow
   Electronic Frontier Foundation
   andrew@eff.org

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:

https://www.eff.org/cases/us-marshals-airborne-imsi-catchers

Contacts:

Andrew Crocker
   Legal Fellow
   Electronic Frontier Foundation
   andrew@eff.org

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

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

Contact:

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

San Francisco - The Electronic Frontier Foundation (EFF) has won its four-year Freedom of Information Act lawsuit over secret legal interpretations of a controversial section of the Patriot Act, including legal analysis of law enforcement and intelligence agency access to census records.

The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215.

"The public trusts that information disclosed for the census won't wind up in the hands of law enforcement or intelligence agencies," Staff Attorney Mark Rumold said. "The public has a right to know what the Office of Legal Counsel's conclusions were on this topic, and we're happy to have vindicated that important right."

In October 2011—the 10th anniversary of the signing of USA Patriot Act—EFF sued the Justice Department to gain access to all "secret interpretations" of Section 215. At earlier stages in the litigation, the Justice Department had refused to publicly disclose even the number of documents that were at issue in the case, claiming the information was classified.

In June 2013, the lawsuit took a dramatic turn after The Guardian published an order from the Foreign Intelligence Surveillance Court authorizing the bulk collection of call records data of Verizon customers. That disclosure helped EFF secure the release of hundreds of pages of legal opinions, including multiple opinions of the Foreign Intelligence Surveillance Court excoriating the NSA for disregarding the court's orders.

However, the Justice Department continued to fight for secrecy for the legal opinion over access to census data under Section 215. Last August, a federal district court judge ordered the government to disclose the OLC opinion.

"The Justice Department has made a wise decision in dismissing the appeal," Rumold said. "We filed this suit nearly four years ago to inform the public about the way the government was using Section 215. We're well overdue to have a fully informed, public debate about this provision of law, and hopefully the disclosure of this opinion will help move the public debate forward."

Although the motion for dismissal was filed today, the government has not provided EFF with the opinion. After receiving the document, EFF will also make it available through its website.

For more information on the case visit: https://www.eff.org/foia/section-215-usa-patriot-act

Contact:

Mark Rumold
   Staff Attorney
   Electronic Frontier Foundation
   mark@eff.org

San Francisco - Leading digital rights champion and author Cory Doctorow has rejoined the Electronic Frontier Foundation (EFF) to battle the pervasive use of dangerous digital rights management (DRM) technologies that threaten users' security and privacy, distort markets, confiscate public rights, and undermine innovation.

Doctorow will be a special consultant to the Apollo 1201 Project, a mission to eradicate DRM in our lifetime. Apollo 1201 will challenge the use of DRM as well as the legal structures that support it.

"Apollo was a decade-long plan to do something widely viewed as impossible: go to the moon. Lots of folks think it's impossible to get rid of DRM. But it needs to be done," said Doctorow. "Unless we can be sure that our computers do what we tell them, and don't have sneaky programs designed to take orders from some distant corporation, we can never trust them. It's the difference between 'Yes, master' and 'I CAN'T LET YOU DO THAT DAVE.'"

Working in the United States and across the globe, Doctorow will accelerate the movement to repeal laws protecting DRM, assist EFF with DRM-related litigation, and work with industry to kick-start a vibrant market in viable, legal alternatives to digital locks.

For many years, EFF has fought the use of DRM technologies, explaining that such technologies—as well as the laws that support them—impede innovation, security, and basic user rights and expectations, while failing to inhibit copyright infringement. One example of this lose-lose proposition is Section 1201 of the Digital Millennium Copyright Act (DMCA), which generally prohibits unlocking "access controls" like DRM. That ban was meant to deter illegal copying of software, but many companies have misused the law to chill competition, free speech, and fair use. Software is in all kinds of devices, from cars to coffee-makers to alarm clocks. If that software is locked down by DRM, tinkering, repairing, and re-using those devices can lead to legal risk.

Section 1201 has also put a dangerous chill on security researchers, who face potential legal penalties for finding and disclosing critical flaws in systems—from smartphones to home automation. As a result, the public gets to find out about compromising vulnerabilities too late, or not at all.

"We've seen DRM misused again and again, whether it's to thwart competition in printer-ink cartridges, to prevent videogame fans from modifying their consoles, or to block consumers from reading the parts' specifications on their own cars," said EFF Intellectual Property Director Corynne McSherry. "Cory has an unparalleled ability to show the public how bad copyright policy tramples on everyone's rights."

Doctorow worked for EFF for four years as its European Affairs Coordinator, and in 2007, he won EFF's Pioneer Award for his body of work on digital civil liberties. He's the originator of "Doctorow's Law," which has helped many around the world understand the dangers of DRM: "Anytime someone puts a lock on something you own, against your wishes, and doesn't give you the key, they're not doing it for your benefit."

"No matter how noble your cause, you can't advance it by insisting that computers everywhere be equipped with spyware to stop people from running the 'wrong' code," said Doctorow. "The bad guys will still figure out how to run that code, and everyone else will end up with critical infrastructure that, by design, treats them as untrustable attackers and, by design, lets remote parties covertly seize control of the computers around them. We all deserve a better future—one without DRM."

For more on DRM:
https://www.eff.org/issues/drm

Contacts:

Cory Doctorow
   Special Consultant, Apollo 1201 Project
   Electronic Frontier Foundation
   cory@eff.org

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

Alexandria, Va. - The Electronic Frontier Foundation (EFF) will argue at a public hearing Wednesday that the U.S. Patent and Trademark Office (USPTO) should invalidate key claims of a patent used by notorious patent troll Personal Audio to shake down podcasters.

Personal Audio claims it owns a patent that covers podcasting, despite the fact that many examples of what we now call podcasting existed before the patent was issued. In May 2013, EFF launched its "Save Podcasting" campaign in response to Personal Audio's spate of legal threats and lawsuits. Buoyed by support from its members and the podcasting community, EFF filed a petition challenging five claims of U.S. Patent No. 8,112,504 in October 2013.

Personal Audio is known as a "non-practicing entity"—a company that doesn't do podcasting itself but instead bases its business model on demanding license fees from actual creators, from garage podcasters to major broadcasters. At this hearing, EFF's pro bono counsel will argue before the panel of USPTO judges that Personal Audio did not invent anything new or non-obvious that should entitle Personal Audio to a patent.

What: Public Hearing in IPR 2014-00070
Date: December 17, 2014
Time: 1 p.m. ET
Where: Madison Building, East Wing
Hearing Room A
600 Dulany Street
Alexandria, VA 22314

The hearing is open to the public, although hearing badges will only be issued on a first come, first served basis. The patent office asks that visitors arrive 30 minutes early and bring identification.

EFF Staff Attorney Vera Ranieri will be available for interviews directly following the hearing.

For more on EFF's challenge: https://www.eff.org/cases/eff-v-personal-audio-llc

Contact:

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

Seattle - An appeals court will hear oral arguments in Smith v. Obama, a case filed by an Idaho nurse against a controversial National Security Agency (NSA) telephone data collection program, in Seattle on Monday, Dec. 8.

Anna Smith, a neonatal nurse from Coeur d'Alene, filed her lawsuit against President Barack Obama and several U.S. intelligence agencies in June 2013, shortly after the government confirmed that the NSA was collecting telephone records on a massive scale under Section 215 of the Patriot Act. Smith, a Verizon customer, argues the program violated her Fourth Amendment rights by amassing a wealth of detail about her familial, political, professional, religious, and intimate associations. Following a district court ruling against Smith, the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU) and the American Civil Liberties Union of Idaho joined the case as co-counsel in July 2014 to assist in crafting the appeal.

Attorney Peter Smith. Credit: Lukins & Annis

Anna Smith's husband, Peter Smith of Lukins & Annis, P.S., who filed the case and argued on Anna's behalf to the trial court, will present oral arguments before a panel of three judges (Hon. Michael Daly Hawkins, Hon. M. Margaret McKeown, and Hon. Richard C. Tallman) at the United States Court of Appeals for the Ninth Circuit.

EFF presented appellate oral arguments in a similar case, Klayman v. Obama, last month. On Dec. 18, EFF will present arguments in San Francisco in Jewel v. NSA, asking the court to find that the NSA's mass copying of Internet communications violates the Fourth Amendment. EFF's other challenge to NSA surveillance, First Unitarian Church of Los Angeles v. NSA, remains pending before a trial judge.

What: Oral Argument in Smith v. Obama

Who: Peter Smith, counsel for Anna Smith

Date: Monday, Dec. 8, 2014

Time: 9:00 am PT (Smith is third on the calendar)

Where: William K. Nakamura Courthouse
7th Floor, Courtroom 2
1010 Fifth Ave.
Seattle, WA 98104

EFF and ACLU staff will be available for interviews following the arguments.

For Smith's appellate briefs:

https://www.eff.org/document/opening-brief-0

https://www.eff.org/document/smiths-reply-brief

Contact:

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

San Francisco - The Ninth Circuit Court of Appeals ruled today that Proposition 35, a 2012 California ballot initiative that would have restricted the rights of registered sex offenders to communicate on the Internet, is likely unconstitutional. The opinion affirms an earlier district court ruling in Doe v. Harris, a lawsuit filed by the American Civil Liberties Union (ACLU) of Northern California and the Electronic Frontier Foundation (EFF) in 2012.

Proposition 35, also known as the Californians Against Sexual Exploitation Act (CASE Act), requires anyone who is a registered sex offender—even people with decades-old, low-level offenses whose offenses were not related to the Internet—to turn over a list of all their Internet user names and online service providers to law enforcement. Under the law, more than 73,000 Californians would have been forced to provide this information to the government, and report any new account or screen name within 24 hours of setting it up, even if the new screen name is their own real name. Violations would have potentially resulted in years in prison.

"The Ninth Circuit has agreed that the onerous online speech restrictions required by Prop. 35 violate the First Amendment," said Linda Lye, senior staff attorney at the ACLU of Northern California. "The portions of Prop. 35 that unconstitutionally limit what people say online won't help us end human trafficking. Anonymity is key to protecting speech by unpopular or controversial groups and allowing robust political debate."

The ACLU of Northern California and EFF filed a lawsuit the day after the law was passed in 2012, challenging these reporting requirements as a burden on the First Amendment right to free and anonymous speech. A lower court agreed with the groups in January 2013 and issued a preliminary injunction, halting enforcement of the law. Today, the Ninth Circuit upheld that lower court ruling.

"[T]he CASE Act directly and exclusively burdens speech, and a substantial amount of that speech is clearly protected under the First Amendment," Ninth Circuit Judge Jay Bybee wrote in the opinion.

The court noted that the law was overly broad, affecting speech unrelated to sexual offenses, such as "blogging about political topics and posting comments to online news articles. " This creates the "inevitable effect of burdening sex offenders' ability to engage in anonymous online speech," Bybee wrote. The court also found that there was no evidence that throwing out this part of Proposition 35 would hamper the state's ability to investigate online sex offenses.

"We're pleased the court recognized important First Amendment principles of free and anonymous speech apply to everyone, regardless of what crimes they may have committed in the past," EFF Staff Attorney Hanni Fakhoury said. "While the law may be well-intentioned, its broad language opened the door for the government to chill free speech. Restrictions targeting sex offenders are often a stepping stone for the expansion of law enforcement power against other classes of unpopular people."

The court's ruling means the preliminary injunction prohibiting enforcement of the reporting requirements of the CASE Act remains in effect.

Contact:

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

San Francisco - The Electronic Frontier Foundation (EFF) is joining a broad coalition of local and national public interest groups for a rally and forum in support of strong net neutrality rules at San Francisco City Hall on Thursday, November 20, at 5:30 pm.

"Bay Area Speaks: A People's Hearing on the Future of the Internet" comes at a key moment in the debate over net neutrality. The Federal Communications Commission (FCC) has a proposal that does not provide full protections for the Internet and could vote to enact the plan early as December. Meanwhile, President Obama has issued a statement urging the FCC to change course and reclassify the Internet as a telecommunications service. This reclassification would be the best way to achieve strong rules against blocking, throttling, and paid prioritization online, and echoes the demands of millions of Americans who have submitted their own comments to the FCC over the last few months.

Former FCC Commissioner Michael Copps will be one of the speakers at Thursday's rally, along with EFF Intellectual Property Director Corynne McSherry and many others. The event is free and open to the public, and there will be time for community comment. The public testimony will be submitted to the FCC.

What:
"Bay Area Speaks: A People's Hearing on the Future of the Internet"

Date:
Thursday, November 20

Time:
Rally – 5:30 pm
Forum – 7 pm

Where:
San Francisco City Hall
1 Dr Carlton B Goodlett Place
San Francisco, CA 94102

For more information and to RSVP:
http://www.brownpapertickets.com/event/933163

Contact:

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

San Francisco - The Electronic Frontier Foundation's Legal Director Cindy Cohn will become EFF's new executive director in April, after Executive Director Shari Steele steps down from the post she's held for 14 years.

With more than 20 years at EFF, Steele has been a driving force of the organization since its earliest days. She has overseen the growth of EFF from a handful of staffers to a 60-person organization at the forefront of every major digital rights issue the world faces today. As executive director, she built a superstar team of attorneys, technologists, and advocates, cementing EFF's reputation as one of the most respected and fiercely independent groups working for technology users' rights. During Steele's tenure, EFF's yearly budget went from less than $1 million in 1999 to almost $9 million for the fiscal year 2014-2015, and membership grew from less than 2000 dues-paying members to over 24,000.

"I've spent most of my working life at EFF, and it's hard to imagine leaving this amazing group of people," said Steele. "I'm so incredibly proud of this organization. I will miss everybody terribly as my family relocates to the Seattle area."

"Shari has been the visionary behind EFF's evolution into the critically important institution it is today. She saw the expanding need for this organization and made sure we were always ready to do this work," said EFF Chairman of the Board of Directors Brian Behlendorf. "Cindy has also been instrumental to EFF's successes, and we're pleased she will continue this vitally important work as executive director."

Cohn has been involved with EFF for over 20 years, first working on Bernstein v. Department of Justice, the successful First Amendment challenge to U.S. export restrictions on cryptography. In 2000, Cohn became legal director, and her work included spearheading EFF's groundbreaking lawsuits challenging the NSA's illegal mass surveillance of Americans and people around the world. She has been named one of the 100 most influential lawyers in America in addition to numerous other honors.

"I have been so fortunate to have worked with Cindy Cohn for the past 20 years," said Steele. "Cindy is a brilliant lawyer, a charismatic leader, and a moral compass for the organization. I am confident that EFF will continue to thrive under her leadership."

"Cindy is one of the smartest lawyers I've ever known, and a great strategist," said EFF co-founder John Gilmore. "Cindy truly understands what makes EFF successful, and we're thrilled she will lead the organization."

EFF Intellectual Property Director Corynne McSherry will take over as legal director. McSherry has been at EFF for nearly 10 years, recently testifying to Congress about the problems with the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), arguing in the D.C. Circuit against copyright trolls, and leading EFF's fight for net neutrality. In addition to serving as legal director, McSherry will continue to lead EFF's intellectual property legal team.

EFF Senior Staff Attorney David Greene will become EFF's new civil liberties director. Before joining EFF last year, Greene had been executive director of the First Amendment Project and was a founding member of the Internet Free Expression Alliance.

EFF Deputy General Counsel Kurt Opsahl will become EFF's general counsel, a post formerly held by Cohn, and will also serve as EFF's deputy executive director with duties including being the primary liaison to the Development, Finance, Technology Ops, and Operations teams. Opsahl is EFF's lead attorney on its cases challenging National Security Letters (NSLs) and recently argued against the NSLs' unconstitutional gag provisions in the United States Court of Appeals for the Ninth Circuit.

"We have big shoes to fill with Shari leaving, but thanks to her and the deep team we've built, we're ready," said Cohn. "I look forward to leading EFF into this next chapter and to helping build the movement for digital rights into a force that speaks for people worldwide."

Steele will remain as EFF's executive director until April of next year. 2015 marks EFF's 25th anniversary.

Contact:

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