Press Releases
Federal Circuit Revisiting Troubling Ruling That Helps Foster Increased Patent Litigation
San Francisco - The Electronic Frontier Foundation (EFF) urged the full Federal Circuit today to throw out the dangerous patents it previously held valid in CLS Bank v. Alice Corp, arguing that the court's earlier decision goes against the law and helps foster the recent dramatic increase in patent litigation. In the amicus brief filed today, EFF proposes that the court require patent owners to claim what they actually invent and nothing more.
"The Patent Act doesn't protect abstract ideas because it would lead to harmful monopolies on simple ideas, like ways of running a business or cooking a meal," said Staff Attorney Julie Samuels. "Yet we're still routinely seeing patents issued based on abstract ideas, and having those patents upheld in some courts. In an environment like this, it should be no surprise that company after company decides to buy a lottery ticket in the guise of a dubious software patent and see if it can hit the jackpot. The Federal Circuit has a chance to help curb this new rash of patent lawsuits."
The patents in CLS Bank cover a computer system that helps with closing financial transactions by avoiding settlement risk. A lower court found this invention so abstract to be unpatentable. But this spring, the Federal Circuit disagreed on appeal, finding that implementation of the invention on a computer system made it non-abstract. The Federal Circuit finding goes against a Supreme Court ruling that adding conventional steps – like implementing something on a computer – does not alone make an abstract idea patentable.
"Patent lawsuits are very common, straining businesses large and small, and acting as a tax on innovation," said EFF Fellow Michael Barclay. "These lawsuits are fueled by dangerous and contradictory rulings from the Federal Circuit on what constitutes a patentable invention. We're asking the court to implement a sensible system, limiting patent owners to what they actually invented, instead of all-too-common broad and vague claims that make no sense and give no guidance to innovators."
Public Knowledge joined EFF in this amicus brief.
For the full brief in CLS Bank v. Alice Corp:
https://www.eff.org/node/72780
Contacts:
Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org
Michael Barclay
Fellow
Electronic Frontier Foundation
michael@eff.org
Statute Threatened Operation of Online Libraries and Other Services
San Francisco - Today, Washington state officials announced that they have dropped their defense of a law aimed at combatting online sex trafficking ads by targeting Internet service providers, conceding that the statute was unconstitutional and violated federal law. After a challenge by the Internet Archive and Backpage.com, a permanent injunction barring enforcement of the law will officially go into effect when the federal district court approves the stipulations and proposed orders filed today.
The Electronic Frontier Foundation (EFF) and co-counsel Venkat Balasubramani represented the Internet Archive in the federal lawsuit that struck down SB 6251, a law passed by the Washington legislature in 2012 despite its obvious potential to curtail legitimate speech. For example, the vague and overbroad statute threatened to impose felony liability not only on those directly engaged in illegal acts but also on those who "indirectly" caused to be "disseminated" any "implicit" offers for commercial sex acts. That could potentially affect services that merely provide access to information, like web hosts, ISPs, or online libraries, impeding their ability to operate. Moreover, the statute directly conflicted with Section 230 of the Communications Decency Act (CDA 230), a federal law that bars states from holding online service providers responsible for the acts of their users.
"Threatening to throw service providers in jail for what their users say or do is misguided, incredibly harmful to online free expression generally, and violates federal law," said EFF Senior Staff Attorney Matt Zimmerman. "We are grateful that the state of Washington has agreed that this statute cannot and will not be enforced against the Internet Archive or anyone else."
The Internet Archive and Backpage.com first filed separate challenges to SB 6251 in June, seeking to block both the state attorney general and county prosecutors from enforcing the statute. In July, federal district court judge Ricardo Martinez granted a preliminary injunction, agreeing that the statute likely violated the First, Fifth, and Fourteenth Amendments as well as conflicted with CDA 230. When approved, today's stipulations and orders will convert the preliminary injunction into a permanent one, rendering the statute unenforceable against anyone.
"The protection offered by CDA 230 has allowed YouTube to host user-uploaded videos, Craigslist to host classified ads, Facebook and Twitter to offer social networking, and the Internet Archive to offer billions of archived webpages documenting the evolution of the Internet," said EFF Staff Attorney Nate Cardozo. "While everyone involved in this case agrees with the goal of SB 6251, overbroad laws that create potential liability for general purpose Internet service providers and forums is not the right way to hold sex traffickers accountable."
For the full settlement order:
https://www.eff.org/node/72784
For more on this case:
https://www.eff.org/cases/internetarchive-v-mckenna
For more on CDA 230:
https://www.eff.org/issues/cda230/
Contacts:
Nate Cardozo
Staff Attorney
Electronic Frontier Foundation
nate@eff.org
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Civil Liberties Groups Urge Judge to Block Unconstitutional Internet Provisions in New Law
San Francisco - Today the ACLU of Northern California (ACLU-NC) and the Electronic Frontier Foundation (EFF) filed a federal class-action lawsuit to block implementation of unconstitutional provisions of Proposition 35 – a ballot measure passed by California voters Tuesday that restricts the legal and constitutionally protected speech of all registered sex offenders in California.
Proposition 35 requires anyone who is a registered sex offender – even people with decades-old, low-level offenses like misdemeanor indecent exposure and people whose offenses were not related to the Internet – to turn over a list of all their Internet identifiers and service providers to law enforcement. While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments. Under the law, more than 73,000 Californians must immediately provide this information to law enforcement, and must 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 can result in years in prison.
Proposition 35's online speech regulations are overly broad and violate the First Amendment, both because they prohibit anonymous speech and because the reporting requirements burden all sorts of online speech, even when the speaker is using his own real name as a screen name.
"The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us," said Michael Risher, staff attorney at the ACLU-NC. "Stopping human trafficking is a worthy goal, but this portion of Prop 35 won't get us there."
The suit was filed Wednesday in U.S. District Court for the Northern District of California on behalf of two individuals required to register as sex offenders and a non-profit organization, California Reform Sex Offender Laws – a group that believes that no sexual abuse is ever acceptable and that laws that paint all sex offenders with one broad brush are counter-productive. The California Reform website allows people to comment on posts and they regularly do so, generally under pseudonyms.
"Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics," said EFF Staff Attorney Hanni Fakhoury. "When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets."
Even before Tuesday's vote, California's sex offender statute was already very broad, with a lifetime registration requirement for even low-level convictions like nude erotic dancing on stage at a bar. The state has the tools to determine who presents a risk to public safety and who doesn't – but this statute applies to everybody, no matter what the risk.
"We're asking the judge today to block the illegal provisions of Prop 35," said Risher.
For the full complaint:
https://www.eff.org/document/complaint-24
Contacts:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Rebecca Farmer
Media Relations Director
ACLU of Northern California
rfarmer@aclunc.org
Government Shares Drones with Law Enforcement Agencies Across the Country
San Francisco - The Electronic Frontier Foundation (EFF) filed suit against the Department of Homeland Security (DHS) Tuesday, demanding answers about how and why it loans out its Predator drones to other law enforcement agencies across the country.
Customs and Border Protection (CBP) – a division of DHS – uses the unmanned drones inside the U.S. to patrol the borders with surveillance equipment like video cameras, infrared cameras, heat sensors, and radar. But recent news articles as well as a report from DHS itself show CBP is expanding its surveillance work, flying Predator drone missions on behalf of a diverse group of local, state, and federal law enforcement agencies – including a county sheriff's department in North Dakota, the Texas Rangers, the Bureau of Land Management, and the Department of Defense.
EFF filed a Freedom of Information Act (FOIA) request asking for more information about these drone flights, but DHS has yet to respond to the request. EFF's lawsuit asks for an immediate response, including records and logs of CBP drone flights conducted in conjunction with other agencies.
"We've seen bits and pieces of information on CBP's Predator drones, but Americans deserve the full story," said EFF Staff Attorney Jennifer Lynch. "Drones are a powerful surveillance tool that can be used to gather extensive data about you and your activities. The public needs to know more about how and why these Predator drones are being used to watch U.S. citizens."
Also on Tuesday, EFF filed a second FOIA lawsuit with the Federal Aviation Administration (FAA), demanding the latest data on certifications and authorizations the agency has issued for public drone flights in the U.S. After EFF filed its first lawsuit in January, the FAA agreed to turn over similar data, and that process is still ongoing. But the agency's slow response has meant that much of the information is outdated long before EFF receives it, and without a new request, records from most of 2012 would not be included.
"FAA's foot-dragging means we can't get a real-time picture of drone activity in the U.S.," said Lynch. "If officials could release their records in a timely fashion – or publish it as a matter of routine on the FAA website – we could stop filing these FOIA requests and lawsuits."
For the full FOIA lawsuits:
https://www.eff.org/node/72156
https://www.eff.org/node/72155
For more about drones and privacy:
https://www.eff.org/foia/faa-drone-authorizations
Contacts:
Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
Join the New Open Wireless Movement
San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of nine other groups launched the Open Wireless Movement today – a new project to promote a landscape of shared, wireless Internet.
"We envision a world where sharing one's Internet connection is the norm," said EFF Activist Adi Kamdar. "A world of open wireless would encourage privacy, promote innovation, and benefit the public good, giving us network access whenever we need it. And everyone – users, businesses, developers, and Internet service providers – can get involved to help make it happen."
The Open Wireless Movement site at openwireless.org gives users of all kinds technological and legal information around opening up a wireless network, including how-to guides and responses to common myths. The site includes specialized information for households, small businesses, developers, and Internet Service Providers. The Open Wireless Movement coalition is also working to develop router technology making it easier for people open their networks without losing quality of Internet access or compromising security.
"The frustrating thing about wireless networks today is that they're everywhere – there can be dozens of them bouncing around you at any given instant – but you're locked out of almost all of them," said EFF Technology Projects Director Peter Eckersley. "We realized that the Internet would work much better, and many amazing new kinds of devices would be possible, if just a small fraction of them could be opened. So we started a movement to make that happen"
The Open Wireless Coalition consists of the Electronic Frontier Foundation, Fight for the Future, Free Press, Internet Archive, NYCwireless, the Open Garden Foundation, OpenITP, the Open Spectrum Alliance, the Open Technology Institute, and the Personal Telco Project.
For more on the Open Wireless Movement:
https://www.openwireless.org
Contacts:
Peter Eckersley
Technology Projects Director
Electronic Frontier Foundation
pde@eff.org
Adi Kamdar
Activist
Electronic Frontier Foundation
adi@eff.org
EFF Backs New York-Based Aereo TV in Battle to Stay in Business
New York - The Electronic Frontier Foundation (EFF) urged a federal appeals court Friday not to shut down Aereo, a startup that lets customers send local broadcast television to Internet-connected devices, arguing that consumers have the right to watch free broadcast TV with the technology of their choice.
Broadcasters and TV networks – including ABC, Fox, Univision, Disney, CBS, NBC, and PBS – sued Aereo for copyright infringement in March, claiming that Aereo should be paying them license fees. The trial court declined to shut Aereo down during the lawsuit, and the broadcasters appealed. Now, the appeals court will decide whether Aereo can stay open while the case goes forward. EFF, along with Public Knowledge and the Consumer Electronics Association (CEA), filed a friend of the court brief Friday, asking the appeals court to reject the networks' bogus copyright claims and protect the rights of consumers.
"Just because Aereo's system sends TV signals to customers doesn't mean that Aereo needs permission from the broadcasters," said EFF Staff Attorney Mitch Stoltz. "Personal TV transmissions don't violate copyright – it's a private use that copyright law doesn't reach. This is just a craven attempt by TV executives to profit from technology that they didn't think of first."
Aereo's system works with thousands of dime-sized antennas installed on a Brooklyn rooftop. Each customer is assigned a single antenna that he or she can control, and the signal from that antenna travels over the Internet to the customer's devices. Aereo has explained in court that it simply takes the place of "rabbit ears" or a rooftop antenna, but the networks argued that Aereo should be treated like a cable system that must get permission from and pay fees to broadcasters.
In deciding not to shut Aereo down pending trial, Judge Alison Nathan of the Southern District of New York said that Aereo's system was similar to another technology that survived a court challenge: Cablevision's "remote DVR" system, which in 2008 was found not to infringe copyright law. Like Aereo, Cablevision took equipment that customers traditionally put in their homes – in that case, digital video recorders – and moved them to the company's offices. Judge Nathan ruled that the appeals court's decision in the Cablevision case also applied to Aereo.
"Broadcasters have exclusive use of a scarce public resource – the airwaves – and that privilege carries with it a responsibility to serve the public. Obviously, the public benefits by having alternative ways to enjoy TV content," said EFF Intellectual Property Director Corynne McSherry. "Judge Nathan reached the right result and we hope the appeals court does too."
EFF co-wrote its brief with John Bergmayer and Sherwin Siy of Public Knowledge.
For the full amicus brief in WNET v. Aereo:
https://www.eff.org/document/appeals-court-amici-curiae-brief-eff-pk-and-cea
Contacts:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Copyright Office Announces Exemptions to Mitigate DMCA Harms
San Francisco - The Electronic Frontier Foundation (EFF) won renewal of critical exemptions to the Digital Millennium Copyright Act (DMCA) in a ruling published today, including the upholding of jailbreaking rights for smartphones as well as new and expanded legal protections for video remixing.
"The DMCA creates a cloud of legal uncertainty over American consumers – whether they are tinkerers, artists, or just looking to make their gadgets work better," said EFF Intellectual Property Director Corynne McSherry. "The ruling from the Copyright Office today goes a long way towards mitigating some of the DMCA's most grievous harms."
Crucial support for the successful request on behalf of video remix artists – carving out new legal protection for this important art form – was provided by the Organization for Transformative Works (OTW). The OTW gathered evidence and presented testimony about the DMCA's adverse impact on several communities of remix creators, who use short clips from movies to build new creative works. The Copyright Office's decision broadens EFF's previously successful exemption request, which allows for taking short excerpts from DVDs in creating noncommercial works, by also protecting the use of clips from online streaming or downloading services.
"Remix videos are thriving on YouTube and other sites, offering dynamic criticism and commentary on popular movies as well as popular culture. It's a great example of how new technologies foster free expression, yet the anti-circumvention provisions of the DMCA endanger these important works," said McSherry. "We're thrilled that the Copyright Office broke new ground in protecting remix artists. We can't let misguided federal law block a new form of art and expression."
The Copyright Office also renewed EFF's exemption request that protects smartphone jailbreaking, liberating phone owners to run operating systems and applications from any source, not just those approved by the manufacturer. However, the Copyright Office declined to expand that exemption to tablets and video game consoles, arguing that the category of "tablets" is not well defined and that jailbreaking video game consoles might lead to more copyright infringement.
"If you bought your gadget, you own it, and you should be able to install whatever software you please without facing potential legal threats," said EFF Senior Staff Attorney Marcia Hofmann. "We're pleased the Copyright Office renewed our smartphone jailbreaking exemption request, but we're disappointed that it couldn't see that consumers deserve the same rights for all the gadgets they own. We'll be back with more exemption requests in the next rulemaking, and we're hopeful the Copyright Office will keep moving in the right direction."
The Copyright Office's rulemaking process is conducted every three years in order to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works. While the DMCA still chills competition, free speech, and fair use, today's exemptions help give consumers and artists protection from the law's extensive reach.
EFF would like to acknowledge the invaluable assistance of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, in drafting the jailbreaking exemption requests.
For the full ruling from the copyright office:
https://www.eff.org/node/72131
For more on our exemption requests:
https://www.eff.org/cases/2012-dmca-rulemaking
Contacts:
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Warrant Materials Sought to Help Innocent Party Regain His Property
Alexandria, VA - The Electronic Frontier Foundation (EFF), on behalf of its client Kyle Goodwin, asked a federal court yesterday to unseal warrant-related documents surrounding the loss of access to Mr. Goodwin's data after the government shut down Megaupload.com. Goodwin used Megaupload's cloud-based storage system for his small business reporting on high school sporting events in Ohio. The site's servers housing Mr. Goodwin's data were frozen as part of a government seizure in January of this year—since then, Mr. Goodwin and others like him have had no access to their data.
Mr. Goodwin has consistently asked the court for the return of his property. In response, the court recently asked Mr. Goodwin and the government to provide additional information on how such a hearing might proceed.
"The government engaged in a overbroad seizure, denying Mr. Goodwin access to his data, along with likely millions of others who have never been accused of wrongdoing," said Julie Samuels, EFF Staff Attorney. "Access to the government's warrant application and related materials can help us learn how this could have happened and provide assistance in our efforts to get Mr. Goodwin his property back."
In running his small business, Goodwin stored video footage on Megaupload servers as a backup to his hard drive and so he could share those large files with his producers all over Ohio. Earlier this year, the FBI shut down Megaupload.com and executed search warrants on the company's servers, locking out all Megaupload customers in the process. When Goodwin's hard drive crashed, he could not get access to any of his own video files, which he needed to conduct his business.
"Unsealing the court documents in this case is not only important to Mr. Goodwin, it is critical to the ongoing public and Congressional debate about the U.S. government's increasing use of its seizure power in intellectual property cases," added Cindy Cohn, EFF's Legal Director. "A court in New Zealand recently upbraided the authorities who conducted similar seizures for failing to protect innocent people whose property was obviously likely to be swept up. The questions raised by the New Zealand court about overbroad seizures should also be asked, and answered, here in the U.S."
EFF was assisted by co-counsel Abraham Sofaer of the Hoover Institution and John Davis of Williams Mullen.
For the full motion to unseal:
https://www.eff.org/document/motion-unseal
For more on the Megaupload Data Seizures:
https://www.eff.org/cases/megaupload-data-seizure
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org
Oil Giant Demands Years of Private Email Account Information from Activists, Journalists, and Attorneys
San Francisco - The Electronic Frontier Foundation (EFF) and EarthRights International (ERI) asked judges in California and New York today to quash subpoenas issued by Chevron Corporation to three email providers demanding identifying information about the users of more than 100 email accounts, including environmental activists, journalists, and attorneys. The information Chevron wants could be used to create a detailed map of the individuals' locations and associations over nearly a decade.
The subpoenas are the latest salvo in the long-running battle over damage caused by oil drilling in Ecuador. After years of litigation, an Ecuadorian court last year imposed a judgment of over $17 billion on Chevron for dumping toxic waste into Amazon waterways and causing massive harm to the rainforest. Instead of paying, Chevron sued more than 50 people who were involved in the Ecuador lawsuit, claiming they were part of a conspiracy to defraud the oil giant. None of the individuals represented by EFF and ERI has been sued by Chevron or accused of wrongdoing.
"Environmental advocates have the right to speak anonymously and travel without their every move and association being exposed to Chevron," said Marcia Hofmann, EFF Senior Staff Attorney. "These sweeping subpoenas create a chilling effect among those who have spoken out against the oil giant's activities in Ecuador."
The motions to quash filed today asked the courts to reject the subpoenas, pointing out that anonymous speakers who are not parties in a lawsuit receive particularly strong First Amendment protections. EFF first won court recognition of this protection in Doe v. 2theMart.com in 2001. Chevron's subpoenas also violate the legal protections for the right of association for political action that were developed during the civil rights era.
"The courts have long recognized that forcing activists to reveal their names and political associations will chill First Amendment rights and can only be done in the most extreme situations," added Marco Simons, Legal Director of ERI, which has provided legal assistance to third parties affected by the Chevron litigation in two international proceedings. "We look forward to having those longstanding principles applied in this case so that people can engage in journalism and political activism and assist in litigation against environmental destruction without fear that their identities and personal email information will be put at risk."
EFF and ERI are challenging the subpoenas to Google and Yahoo! in the U.S. District Court for the Northern District of California and the subpoena to Microsoft in the U.S. District Court for the Northern District of New York. Peter Henner is local counsel working with EFF and ERI in New York.
For the motion to quash in the Northern District of California: https://www.eff.org/document/nd-cal-motion-quash
For the motion to quash in the Northern District of New York: https://www.eff.org/document/ndny-motion-quash
For more information about the case and supporting documents: https://www.eff.org/cases/chevron-v-donziger
Contacts:
Nate Cardozo
Staff Attorney
Electronic Frontier Foundation
nate@eff.org
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
About EFF:
The Electronic Frontier Foundation is the leading organization protecting civil liberties in the digital world. Founded in 1990, we defend free speech online, fight illegal surveillance, promote the rights of digital innovators, and work to ensure that the rights and freedoms we enjoy are enhanced, rather than eroded, as our use of technology grows. EFF is a member-supported organization. Find out more at https://www.eff.org.
About ERI:
EarthRights International is a nonprofit, nongovernmental organization that uses legal and advocacy tools to defend human rights and the environment. We specialize in fact-finding, legal actions against perpetrators of abuses, training for grassroots and community leaders, and advocacy campaigns that seek to end environmental and human rights abuses. To learn more, including ERI’s involvement in other aspects of the Chevron litigation, please visit: http://www.earthrights.org.
Home Movie of Toddler Dancing to Prince Song Sparked Bogus Copyright Claim
San Jose, CA - On Tuesday, October 16, at 3 p.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose, California to rule that Universal Music Corp. violated the law when it sent YouTube a takedown demand over a home movie of a toddler dancing to a Prince song.
Tuesday's oral argument is in Lenz v. Universal, a case that started back in 2007, when Stephanie Lenz first posted the video to share with family and friends. In the 29-second clip, Lenz's young son is dancing in the family kitchen to "Let's Go Crazy," which is playing on a stereo in the background. Remarkably, Universal Music Publishing Group claimed that the video violated copyright law, and had the video yanked from YouTube.
Lenz fought back with the help of EFF, filing a lawsuit asking the court to hold Universal accountable for YouTube to take down her fair use. In a key victory early in the case, the court held that content owners must consider fair use before sending copyright takedown notices.
In Tuesday's hearing, EFF Intellectual Property Director Corynne McSherry will ask the court to grant Lenz's motion for summary judgment in this case and rule that Universal's takedown was improper and an abuse of the Digital Millennium Copyright Act (DMCA).
"Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music," said McSherry. "Content companies need to be held accountable when their heavy-handed tactics squash fair use rights. We hope the judge gives Ms. Lenz the closure she deserves, and shows content owners they can't trample over users' rights."
WHAT:
Lenz v. Universal
WHEN:
Tuesday, October 16
3 p.m.
WHERE:
United States District Court, Northern District of California
Courtroom 3, 5th Floor
280 South 1st Street
San Jose, CA 95113
For the full background on Lenz v. Universal, including the most recent motions:
https://www.eff.org/cases/lenz-v-universal
Contact:
Adi Kamdar
Activist
Electronic Frontier Foundation
adi@eff.org
Government Wants to Collect Months of Location Data Without a Warrant
New Orleans - The Electronic Frontier Foundation (EFF) will urge a federal appeals court Tuesday to recognize cell phone users' privacy rights and require that the government obtain a warrant before collecting cell phone location information. The oral argument is set for 9 a.m. on October 2nd in New Orleans.
At issue in Tuesday's hearing are government requests for judicial orders authorizing the disclosure of 60 days of location data from two separate cell phone companies as part of a routine law enforcement investigation. A magistrate judge denied the request, saying the government needed to apply for a search warrant supported by probable cause to obtain the information. The district court judge agreed with the magistrate's finding, and the government appealed the decision to the U.S. Court of Appeals for the 5th Circuit.
In this case – and in many others across the U.S. – the government claims that cell phone users give up their privacy rights because they have voluntarily disclosed their physical location to the cell phone providers every time a phone connects to the provider's cell tower. Government attorneys argue this means investigators do not need a warrant to get access to location history. However, this theory undermines privacy in nearly any networked communication. At Tuesday's hearing, EFF Staff Attorney Hanni Fakhoury will argue that obtaining a warrant for cell location data is essential to ensuring Fourth Amendment protections.
Tuesday's hearing comes just weeks after the U.S. Court of Appeals for the 6th Circuit allowed the government access to cell phone location records without a warrant. That conflicts with a 2010 decision from the U.S. Court of Appeals for the 3rd Circuit, which ruled that a court could require the government to obtain a search warrant to access location information. The case being argued Tuesday is just the third case to reach the federal appellate courts on this issue, and the conflicting circuit court decisions could encourage Supreme Court attention.
WHAT:
Oral argument In Re: Application for Historical Cell Site Data
WHEN:
Tuesday, October 2
9 a.m.
WHERE:
John Minor Wisdom United States Court of Appeals Building
Room 265
600 Camp Street
New Orleans, LA 70130
Contacts:
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Patent Troll Files Flurry of Lawsuits Over Widely Used Transit-Arrival Systems
San Francisco - The Electronic Frontier Foundation (EFF) is challenging a dangerous patent used to wrongfully demand payment from cities and other municipalities that employ public tracking systems to tell transit passengers if their bus or train is on time.
Today, EFF with the help of the Samuelson Law, Technology, and Public Policy Clinic at Berkeley Law, filed a request with the United States Patent and Trademark Office (USPTO), urging reexamination of the legitimacy of the ArrivalStar patent – used as a basis for dozens of recent lawsuits against entities like the state of California, the city of Cleveland, and the Illinois Commuter Rail.
ArrivalStar claims its patents are based on an invention from 1999 and argues that many widely used transit-tracking systems – as well as some package-tracking services used by delivery and shipping companies – are infringing. But in the reexamination request filed today, EFF and the Samuelson Clinic show that as far back as 1992, public technical reports described a "Smart Bus system" that used the same methods as those included in the ArrivalStar patent.
"ArrivalStar apparently believes that the broad language of their patents could potentially cover any system that tracks a vehicle or a package and notifies a customer of the status. Even if you could patent something that broad and vague – and we think you can't – you certainly can't patent something that was invented by other people years before," said EFF Staff Attorney Julie Samuels. "Yet because of this particularly baseless patent, municipalities across the country are being forced to choose whether they will fight an expensive lawsuit, pay ArrivalStar's settlement demands, or abandon a public service. This is not how the patent system is supposed to work."
Because of the deep and systemic problems in the American patent system, EFF has launched the Defend Innovation project to advocate for reform. EFF is asking the public to sign on to our petition at defendinnovation.org and to comment on seven recommended proposals we think would make the broken system work better for software.
"The patent office issues bad software patents every day, and those patents are hurting American businesses and consumers and hindering innovation," said Samuels. "It's time to create a blueprint for reform."
For the full reexamination request:
https://www.eff.org/document/reexamination-request-arrivalstar-patent
For EFF's Defend Innovation project:
https://defendinnovation.org/
Contact:
Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org
Government Withholding Information About Unconstitutional Spying at NSA
Washington, D.C. - The Electronic Frontier Foundation (EFF) sued the Department of Justice (DOJ) today, demanding answers about illegal email and telephone call surveillance at the National Security Agency (NSA).
The FISA Amendments Act (FAA) of 2008 gave the NSA expansive power to spy on Americans' international email and telephone calls. However, last month, in a letter to Senator Ron Wyden, a government official publicly disclosed that the NSA's surveillance had gone even further than what the law permits, with the Foreign Intelligence Surveillance Court (FISC) issuing at least one ruling calling the NSA's actions unconstitutional. The government further disclosed that the FISC had determined the government's surveillance violated the spirit of the law on at least one occasion, as well. EFF's Freedom of Information Act (FOIA) lawsuit seeks disclosure of any written opinions or orders from FISC discussing illegal government surveillance, as well as any briefings to Congress about those violations.
"For years we've seen news reports in the New York Times and other outlets about widespread government spying going beyond the broad powers granted in the FAA, but we've yet to get any real answers about what is going on," said EFF Open Government Legal Fellow Mark Rumold. "When law-breaking is allowed to remain secret, there's no accountability or way to monitor future abuses. It's time for the government to come clean and tell us about the NSA's unconstitutional actions."
The surveillance provisions in the FAA will sunset at the end of this year unless Congress reauthorizes the law. The pending congressional debate on reauthorization makes it all the more critical that the government release this information on the NSA's actions.
"As Congress gears up to reconsider the FAA, the American public needs to know how the law has been misused," said EFF Senior Counsel David Sobel. "The DOJ should follow the law and release this information to the American public."
EFF represents the plaintiffs in Jewel v. NSA, a class-action lawsuit challenging the underlying legality and constitutionality of the government's warrantless surveillance program. That case is currently being briefed in federal court in San Francisco.
For the full complaint:
https://www.eff.org/document/complaint-19
Contacts:
Mark Rumold
Open Government Legal Fellow
Electronic Frontier Foundation
mark@eff.org
David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org
EFF to Honor Andrew (bunnie) Huang, Jérémie Zimmermann, and the Tor Project at San Francisco Ceremony
San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the distinguished winners of its 2012 Pioneer Awards: hardware hacker Andrew (bunnie) Huang, anti-ACTA activist Jérémie Zimmermann, and the Tor Project – the organization behind the groundbreaking anonymity tool Tor.
The award ceremony will be held the evening of September 20 at Project One Gallery in San Francisco. The founding developer of WordPress, Matt Mullenweg, will be the keynote speaker.
Andrew (bunnie) Huang is an activist who takes a push-and-pull approach to open hardware: he contributes original open designs and also liberates closed designs. Huang's book on reverse engineering, "Hacking the Xbox," is a widely respected tool for hardware hackers. Huang has also released an open implementation of a man-in-the-middle attack on HDCP – enabling overlays on encrypted video without circumventing access controls. As part of his long-term advocacy for users' rights, Huang worked with EFF to help encourage more than 25,000 people to ask the Copyright Office for the right to install the software of their choice on their smartphones, tablets, and video game consoles. Huang serves as a Research Affiliate for the MIT Media Lab and a technical advisor for several hardware startups and MAKE magazine, and he shares his experiences manufacturing hardware in China through his blog.
Jérémie Zimmermann is the co-founder of La Quadrature du Net, an influential French advocacy group defending the rights and freedoms of citizens on the Internet. Zimmermann has been instrumental in the fight against the Anti-Counterfeiting Trade Agreement (ACTA), a far-reaching international treaty that would curtail many Internet freedoms in favor of extremist intellectual property protectionism. Zimmermann has worked tirelessly to spread the word about ACTA and the ways in which it would put a chokehold on Internet and digital rights. This July, after years of secretive negotiations, ACTA was defeated in the European Parliament. Zimmermann has also worked on numerous other technology policy topics, including freedom of expression, copyright, regulation of telecommunications, and online privacy.
The Tor Project is a group of software developers and other advocates who maintain Tor, free software that helps Internet users circumvent Internet censorship and protect their anonymity. Tor enables activists, journalists, and others to keep websites from tracking them and to connect to uncensored news sites and services. Tor's hidden services let users publish web sites and do other online work without needing to reveal their locations. Tor also enables software developers to create new communication tools with built-in privacy features. Ongoing global trends in law, policy, and technology threaten anonymity as never before and undermine our ability to speak and read freely online, but the groundbreaking work from the Tor Project helps users everywhere improve the safety of their online communications.
"Every year, our Pioneer Awards celebrate those who have made a difference for digital freedom. We are extraordinarily proud of this year's winners and their unflagging dedication to protecting the rights of technology users around the world," said EFF Executive Director Shari Steele. "Whether it's your right to reverse engineer a game console, or to avoid the interference of overbroad IP enforcement, or to block websites or governments from tracking your every online move, these winners are working hard to protect our online freedom. We're honored they will be at our annual awards ceremony on September 20."
Tickets to the Pioneer Awards are $75 and can be purchased online at https://www.eff.org/awards/pioneer. Also available are tickets to a special VIP event featuring the Pioneer Award winners and keynoter Matt Mullenweg. In addition to being founding developer of WordPress – the open source blogging software that runs millions of sites around the world – Mullenweg also started Automattic, Akismet, Gravatar, bbPress, IntenseDebate, and BuddyPress.
Awarded every year since 1992, EFF's Pioneer Awards recognize leaders who are extending freedom and innovation on the electronic frontier. Previous honorees include Tim Berners-Lee, Senator Ron Wyden, Limor "Ladyada" Fried, Linus Torvalds, and Tunisian blogging collective Nawaat, among many others. Sponsors of this year's Pioneer Awards include Adobe, JibJab, JunkEmailFilter.com, and Orrick, Herrington & Sutcliffe LLP.
To buy tickets to the Pioneer Awards:
https://www.eff.org/awards/pioneer
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
EFF Manual Outlines How Keep Your Content Online in Case of a Denial of Service Attack
San Francisco - Denial of service attacks – flooding websites with traffic in order to make them unavailable to the public – have become an increasingly popular way to take down or block Internet content. A new online guide from the Electronic Frontier Foundation (EFF) outlines how website operators can fend off these attacks and keep their sites alive and accessible.
"Denial of service attacks have been used by governments to silence online criticism as well as by activists protesting companies and organizations they don't like," said EFF Director for International Freedom of Expression Jillian York. "Major websites often have the resources to keep running during a denial of service attack, but smaller sites – such as those belonging to independent media or human rights organizations – are sometimes taken down permanently. Our online guide is aimed at leveling the playing field."
EFF's "Keeping Your Site Alive" guide includes tips on choosing an appropriate webhost to provide the security and technical assistance needed to weather an attack. The guide also gives advice on how to back up and mirror content so it can be made available elsewhere in case the site is compromised, and includes tutorial videos with background information on the technical concepts involved. Denial of service attacks are an issue for websites across the globe, so EFF's guide is available in many different translations, including Chinese, Russian, Persian, and Arabic.
"Lack of resources or knowledge can mean some websites are more vulnerable than others," said EFF International Freedom of Expression Coordinator Eva Galperin. "We want to give website operators around the world the tools they need to protect their content and stay online."
For EFF's guide "Keeping Your Site Alive":
https://www.eff.org/keeping-your-site-alive
Contacts:
Eva Galperin
International Freedom of Expression Coordinator
Electronic Frontier Foundation
eva@eff.org
Jillian York
Director for International Freedom of Expression
Electronic Frontier Foundation
jillian@eff.org
Defendant Pushes to Exclude Cell Phone Location Data Obtained Without a Warrant
San Francisco - A federal district court is poised to determine whether the government can use cell phone data obtained without a warrant to establish an individual's location. In an amicus brief filed Monday, the Electronic Frontier Foundation (EFF) and the Center for Democracy & Technology (CDT) argue that this form of surveillance is just as unconstitutional as the warrantless GPS tracking the U.S. Supreme Court already shot down in this case.
"Location data is extraordinarily sensitive. It can reveal where you worship, where your family and friends live, what sort of doctors you visit, and what meetings and activities you attend," said EFF Senior Staff Attorney Marcia Hofmann. "Whether this information is collected by a GPS device or a mobile phone company, the government should only be able to get it with a warrant based on probable cause that's approved by a judge."
In U.S. v. Jones, FBI agents planted a GPS device on a car and then tracked its position every ten seconds for 28 days without a valid search warrant. In a landmark decision earlier this year, the Supreme Court ruled that this violated the Fourth Amendment. The case is now back in the trial court, where Jones is moving to suppress six months of cell phone location data that government investigators obtained – yet again – without a warrant. In Monday's brief, EFF and CDT argue that the Fourth Amendment doesn't allow government investigators to collect cell phone data to track users' locations over a prolonged period of time without a warrant. This right isn't defeated even if cell phone users disclose their locations to service providers when their phones connect to a cell phone tower.
"As Justice Sonia Sotomayor said in the Jones GPS Supreme Court decision, the idea that privacy rights are forfeited simply by giving them to a third party is 'ill-suited to the digital age,'" said EFF Staff Attorney Hanni Fakhoury. "If the government gets its way here, it could jeopardize any expectation of privacy we have in our private movements."
For the full amicus brief in U.S. v. Jones:
https://www.eff.org/document/amicus-eff-and-cdt
Contacts:
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Ignoring Fair Use Doctrine, Authors Guild Suit Tries to Block Valuable Resource
San Francisco - The Electronic Frontier Foundation (EFF) filed an amicus brief today urging a federal court to find that the fair use doctrine shelters Google's Book Search "snippet" project from copyright infringement claims from the Authors Guild. EFF was joined by three associations representing over 100,000 libraries, the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries.
For years, Google has been cooperating with libraries to digitize books for a searchable database available to the public. Google Book Search now includes over 12 million works that users can search for keywords. Results include titles, page numbers, and small snippets of text. Google Book Search has become an extraordinarily valuable tool for librarians, scholars, and amateur researchers of all kinds. For example, librarians surveyed about Google Book Search said the service can help them find valuable research sources inside their own libraries as well as lead them to rare books they can borrow from other institutions. Many librarians say that they have purchased new books for their collections after discovering them through using Google Book Search. However, the Authors Guild argues that its members are due compensation in exchange for their books being digitized and included in the database – even though blocking Google Book Search's digitization wouldn't bring any author any additional revenue.
"Google Book Search is a reference tool that helps people find books. It doesn't take the place of sales," said EFF Fellow Michael Barclay. "The fair use doctrine allows for services like Google Book Search – they cause no economic harm and serve the welfare of the public."
The amicus brief filed today is part of EFF's long involvement in Authors Guild v. Google. In 2009 EFF and a coalition of authors and publishers objected to a proposed broad settlement of the case that would have created a business for Google selling access to whole books, based on the failure of the settlement to protect the privacy of readers. A judge rejected that broad settlement last year. Now Google seeks approval of the more narrow search and snippet project, and EFF agrees that the fair use doctrine applies.
"Google Book Search is a digital update to the old card catalog that helps libraries, helps researchers, and ultimately helps authors reach their audiences," said EFF Legal Director Cindy Cohn. "We hope the court protects Google Book Search – and the researchers and other readers who depend on it – from these meritless copyright claims."
For the full amicus brief in Authors Guild v. Google:
https://www.eff.org/document/amicus-brief-eff-and-library-associations
Contact:
Michael Barclay
Fellow
Electronic Frontier Foundation
michael@eff.org
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Says Statute Likely Violates First Amendment, Federal Communications Decency Act
Seattle - Today, a federal district court judge granted a motion by the Internet Archive to block enforcement of an overbroad Washington state anti-sex trafficking statute that could make online service providers criminally liable for providing access to third parties' offensive materials.
The Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to invalidate SB 6251, a law aimed at combatting advertisements for underage sex workers but with vague and overbroad language that is squarely in conflict with federal law. EFF last week appeared in federal district court in Seattle to argue that the court should grant a preliminary injunction barring enforcement of the criminal statute while the lawsuit is ongoing. The court today agreed with the Internet Archive, finding that the statute likely violated the First, Fifth, and Fourteenth Amendments, the dormant Commerce Clause, and Section 230 of the Communications Decency Act.
"We are grateful that the Court agreed with our concerns about the gravity of the structural problems with this statute," said Senior Staff Attorney Matt Zimmerman. "While everyone involved in this case agrees that sex trafficking is an abhorrent practice, the approach used in this statute to combat the problem is fundamentally and irretrievably flawed. States cannot make those who provide access to online information -- like libraries or Internet Service Providers (ISPs) -- responsible for the illegal behavior of third party users, under threat of criminal penalties. Prosecuting criminals themselves will always be the better approach."
SB 6251 was passed with the hope of criminalizing the dissemination of underage sex trafficking ads and imposing a requirement to confirm the ages of individuals in such ads prior to publication. The law, however, is fraught with problems. As written, the vaguely-worded statute -- making it a felony to "directly or indirectly" provide access to any material that might constitute an "explicit or implicit" commercial offer for sex -- could be read to apply not only to posters but to neutral entities that provide access to online information, including ISPs, Internet cafes, and libraries. This would result in a chilling effect as such entities begin feeling pressured to censor protected online speech in order to safely stay on the right side of an unclear law. The Internet Archive is particularly concerned with any statute that seeks to make intermediaries responsible for content created by third parties -- the Internet Archive itself currently makes available over 150 billion archived web pages from 1996 to the present and has no practical ability to screen its collection for illegal content.
With the statute now enjoined, the plaintiffs (including Backpage.com, which has filed a separate complaint challenging the legality of the law) will now move for a final declaration by the court that the statute is illegal.
For the order granting preliminary injunction barring enforcement of SB 6251:
https://www.eff.org/node/71321
For more on this case:
https://www.eff.org/cases/internetarchive-v-mckenna
Contacts:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Statute Criminalizes Speech in Violation of the First Amendment
San Francisco - The Electronic Frontier Foundation (EFF) is urging a Washington State judge to dismiss "cyberstalking" charges stemming from rude comments left on a blog. In an amicus brief filed today, EFF argues that the case is based on an unconstitutional law that criminalizes free speech.
The defendant in the case, Brandy Edwards, created an online dating profile under a pseudonym and used it to communicate with Amanda Westmont, the ex-wife of a friend of Edwards. Months later – after the online relationship ended – Edwards posted three critical comments on Westmont's publicly accessible blog, still using the pseudonym. Employing obscenities, the posts referred to Westmont as "full of herself," a "nutcase," and a "whack-job."
Westmont deleted the posts and reported them to the police. A year later, Edwards was charged with two counts of "cyberstalking" under Washington State law. The first charge is based on Edwards anonymously and repeatedly communicating with Westmont for the purpose of "harassing and embarrassing" another person, although the conversation was consensual. The second charge is based on Edwards' use of "obscene" language for the purpose of "harassing or embarrassing." The problem with the Washington State statute is that it outlaws anonymous or obscene speech intended to "embarrass" without defining what that broad term means. In the brief filed today, EFF argues that the law is unconstitutional and the case should be dismissed.
"While we may not like a lot of what people say online, the First Amendment allows for rudeness and other impolitic comments," said EFF Staff Attorney Hanni Fakhoury. "The way this law is written, it could end up criminalizing things like posting a negative review on a website like Yelp."
Venkat Balasubramani of FOCAL PLLC in Seattle, Washington, is EFF's local counsel in the case.
For the full amicus brief:
https://www.eff.org/node/71310/
Contact:
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Growing Biometric Databases Threaten Privacy and Civil Liberties
Washington, D.C. - Electronic Frontier Foundation (EFF) Staff Attorney Jennifer Lynch will testify this week at a Senate hearing on facial recognition technology and the privacy and civil liberties risks associated with rapidly growing biometric databases. The hearing is set for Wednesday, July 18, at 2:30 p.m.
Facial recognition technology is becoming increasingly sensitive and sophisticated, creating new ways for government and private entities to identify and track people throughout the United States. Meanwhile, databases used by law enforcement, social networking sites, and other entities both public and private are growing larger every day. In her testimony Wednesday, Lynch will discuss how the increasing use of facial recognition technology presents unique risks to Americans' privacy and civil liberties, and what we can do to protect rights and freedoms going forward.
Other witnesses at Wednesday's hearing include Maneesha Mithal, Associate Director of the Federal Trade Commission's Division of Privacy and Identity Protection; Jerome M. Pender, Deputy Assistant Director of the Criminal Justice Information Services Division of the Federal Bureau of Investigation; and Rob Sherman, Facebook's Manager of Privacy and Public Policy. The hearing is part of the Senate Judiciary Committee's Subcommittee on Privacy, Technology, and the Law, chaired by Senator Al Franken.
WHO:
Jennifer Lynch
Staff Attorney, Electronic Frontier Foundation
WHAT:
“What Facial Recognition Technology Means for Privacy and Civil Liberties”
U.S. Senate Judiciary Committee, Subcommittee on Privacy, Technology, and the Law
WHEN:
2:30 p.m.
Wednesday, July 18
WHERE:
Dirksen Senate Office Building, Room 226
Washington, DC 20002
For more on the hearing:
http://www.judiciary.senate.gov/hearings/hearing.cfm?id=daba530c0e84f5186d785e4894e78220
Authors Guild Suit Against Reference Uses Flies in the Face of Fair Use
San Francisco - The Electronic Frontier Foundation (EFF) has joined several national library associations in urging a federal court to find that the fair use doctrine permitted the creation of a valuable digital library.
Although the case was filed long after the more famous Google Books lawsuit, Authors Guild v. HathiTrust presents a similar issue: whether digitization of books without granting full text access to the public is a legal fair use of copyrighted material. For the past seven years, major university libraries have been collaborating with Google to digitize their collections, with one result being the creation of the HathiTrust Digital Library (HDL). Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections. With the exception of some patrons who have disabilities, HDL does not allow for users to access books in their entirety – it simply does a search for keywords and delivers titles and page numbers as results. Nonetheless, the Authors Guild claims its members are due compensation in exchange for being included in the collection. In an amicus brief filed Friday, EFF and the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries argue that the copying of books for a database like the HDL is a clear case of fair use, and obviously in the public interest.
"The HDL doesn't give most users whole copies of a book. Instead, libraries use the HDL to search for books titles that they should borrow or purchase for their users," said EFF Intellectual Property Director Corynne McSherry. "This is a highly detailed map – a reference tool – and doesn't take the place of book sales. This is just the kind of fair use that copyright law is supposed to protect."
For the full amicus brief in The Authors Guild v. HathiTrust:
https://www.eff.org/node/71166
Contact:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Suit Was Blatant Retaliation Against a Public Critic
San Francisco - Attorney Charles Carreon dropped his bizarre lawsuit against The Oatmeal creator Matthew Inman today, ending his strange legal campaign against Inman's humorous and creative public criticism of a frivolous cease and desist letter that Carreon wrote on behalf of his client Funny Junk.
The Electronic Frontier Foundation (EFF) and co-counsel Venkat Balasubramani represented Inman in the case. While Carreon's lawsuit was purportedly about whether Inman's online fundraising campaign for the American Cancer Society and the National Wildlife Federation complies with California regulations, it was really a classic SLAPP – a strategic lawsuit against public participation.
"Matthew Inman spoke out against Carreon's threat of a frivolous lawsuit, in a very popular and very public way," said EFF Senior Staff Attorney Kurt Opsahl. "This was nothing more than a meritless attempt to punish Inman for calling attention to his legal bullying. We called him out on this in our briefs, so it's no surprise that Carreon was left with no choice but to dismiss."
The extraordinarily public dispute between Inman and Carreon started in 2011, when Inman published a blog post condemning the website FunnyJunk for posting hundreds of his comics without crediting or linking back to The Oatmeal. A year later, Carreon – the attorney for FunnyJunk – served Inman with a letter claiming the post was defamatory and demanding The Oatmeal pay $20,000 and agree to never speak the words Funny Junk again.
Inman publicly annotated the cease and desist letter with a scathing critique of its facts and logic and posted it on The Oatmeal. Furthermore, instead of paying Carreon's baseless demand for $20,000, Inman decided instead to start a fundraising campaign called Operation BearLove Good, Cancer Bad through the Indiegogo fundraising platform to benefit the American Cancer Society and the National Wildlife Federation. The fundraiser's goal was $20,000, to match Carreon's demand, but the final total was over $200,000.
"Inman sparked a flood of charity donations, and yet Carreon still tried to punish him for making fun of his baseless legal threats by dragging him through the court system," said EFF Intellectual Property Director Corynne McSherry. "We're very pleased that Carreon has seen that his lawsuit had no merit, and hope that this is the end of his abuse of the legal system."
For the notice of voluntary dismissal:
https://www.eff.org/node/71150
For more on this case:
https://www.eff.org/cases/carreon-v-inman
Contacts:
Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
EFF Asks Court to Reject Stale State Secret Arguments So Case Can Proceed
San Francisco - Three whistleblowers – all former employees of the National Security Agency (NSA) – have come forward to give evidence in the Electronic Frontier Foundation's (EFF's) lawsuit against the government's illegal mass surveillance program, Jewel v. NSA.
In a motion filed today, the three former intelligence analysts confirm that the NSA has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers, such as the "secret room" at the AT&T facility in San Francisco first disclosed by retired AT&T technician Mark Klein in early 2006.
"For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people," said EFF Legal Director Cindy Cohn. "Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We're extremely pleased that more whistleblowers have come forward to help end this massive spying program."
The three former NSA employees with declarations in EFF's brief are William E. Binney, Thomas A. Drake, and J. Kirk Wiebe. All were targets of a federal investigation into leaks to the New York Times that sparked the initial news coverage about the warrantless wiretapping program. Binney and Wiebe were formally cleared of charges and Drake had those charges against him dropped.
Jewel v. NSA is back in district court after the 9th U.S. Circuit Court of Appeals reinstated it in late 2011. In the motion for partial summary judgment filed today, EFF asked the court to reject the stale state secrets arguments that the government has been using in its attempts to sidetrack this important litigation and instead apply the processes in the Foreign Intelligence Surveillance Act that require the court to determine whether electronic surveillance was conducted legally.
"The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret," said EFF Senior Staff Attorney Lee Tien. "Yet the government keeps making the same 'state secrets' claims again and again. It's time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance."
For the full motion for partial summary judgment:
https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment
For more on this case:
https://www.eff.org/cases/jewel
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org
Abraham Sofaer Joins EFF in Fight for Return of Property
Alexandria, VA - The Electronic Frontier Foundation (EFF), assisted by retired federal judge and former State Department legal adviser Abraham D. Sofaer, will ask a federal judge Friday to order the return of data to Kyle Goodwin, a Megaupload user who lost all access to his files when the cloud storage service was shut down by the U.S. government.
Megaupload.com and related sites were seized in January as part of a copyright infringement investigation. But in addition to the alleged illegal activity by some Megaupload users, many innocent customers used the service to store legal material. The government has failed to help Goodwin and other lawful Megaupload users get access to their data, despite months of legal wrangling. In Friday's hearing, EFF and Sofaer will ask the court to establish a procedure by which innocent users will be able to reclaim their property, as is routinely required in the seizure of non-digital items.
WHAT:
Motion hearing in USA v. Dotcom
WHEN:
Friday, June 29
10 a.m.
WHERE:
Albert V. Bryan U.S. Courthouse
401 Courthouse Square
Alexandria, VA 22314
Judge Liam O'Grady – Courtroom 700
Contacts:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Baseless Suit Claims Online Trademark Infringement and ‘Cyber-Vandalism’
The Electronic Frontier Foundation (EFF) is joining with attorney Venkat Balasubramani of the law firm Focal PLLC to represent The Oatmeal creator Matthew Inman in a bizarre lawsuit targeting the online comic strip’s fundraising campaign in support of the American Cancer Society and the National Wildlife Federation.
“I have a right to express my opinion, whether Mr. Carreon likes it or not,” said Inman. “While the lawsuit may be silly, the harm it can do is very real.”
Inman started his campaign last week as part of a protest over legal threats he received from the website FunnyJunk. In 2011, Inman published a blogpost noting that FunnyJunk had posted many of his comics without crediting or linking back to The Oatmeal. A year later, FunnyJunk claimed the post was defamatory and demanded $20,000 in damages. Inman crafted a unique response, which included some comic art. Instead of paying the baseless demand, Inman asked for donations for the American Cancer Society and the National Wildlife Federation. The campaign raised more than $200,000 so far.
An attorney for FunnyJunk, Charles Carreon, has now responded with a lawsuit filed on his own behalf. Carreon’s suit names Inman, the two charities, and the online fundraising platform IndieGoGo, claiming trademark infringement and incitement to “cyber-vandalism.”
“This lawsuit is a blatant attempt to abuse the legal process to punish a critic,” said EFF Intellectual Property Director Corynne McSherry. “We're very glad to help Mr. Inman fight back.”
Broken Patent System Needs Seven Big Fixes to Protect Inventors
San Francisco - Patents are supposed to foster innovation, but modern software patents have been weaponized against inventors. Today the Electronic Frontier Foundation (EFF) is launching "Defend Innovation," a new patent reform project to promote seven fixes for America's patent system.
"The software patent system is broken. Patents are supposed to help promote new inventions and ideas, but software patents are chronically misused to limit competition, quash new tools and products, and shake down companies big and small," said EFF Staff Attorney Julie Samuels. "It's time for Internet users, inventors, activists, and academics to team up and fix the problem."
EFF has posted seven proposals for software patent reform at Defendinnovation.org, including shortening the term for software patents from 20 years to no more than five years, allowing winning parties in litigation to recover fees and costs, and ensuring that infringers who arrive at a patented idea independently aren't held liable, for example. EFF is asking the public to sign on to the proposals and to make additional comments of their own. Additionally, we're calling on individual inventors, lawyers, and academics to give feedback, and we're asking technology companies to continue the conversation with in-person meetings with EFF staff. EFF will take the results from these comments and meetings and create a whitepaper to help educate lawmakers and others about the full reach of the problem and next steps forward to fix it.
"The U.S. Patent Office is overwhelmed and underfunded, and issues questionable patents every day – patents that hurt innovators and consumers alike," said EFF Activism Director Rainey Reitman. "It's time for the technology community to work together to create a blueprint for reforming the broken software patent system."
Help EFF Defend Innovation:
https://defendinnovation.org/
Contacts:
Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org
Rainey Reitman
Activism Director
Electronic Frontier Foundation
rainey@eff.org
Expanded International Team Brings New Breadth to Global Digital Rights Issues
San Francisco - Carolina Rossini has joined the Electronic Frontier Foundation (EFF) as its International Intellectual Property Director, bringing more than ten years of experience in global IP law and policy to EFF's international team.
Carolina Rossini is a Brazilian attorney focused on Internet and IP law and policy, cooperation theory, international copyright and patent negotiations, and open licensing in emerging technologies. She is a member of the IP Global Agenda Council for the World Economic Forum, a board member of the Brazilian Internet Institute, and the founder of OER-Brazil, which works with policymakers to enact open access and open educational resource polices in Brazil and beyond. Rossini previously was a Fellow at the Berkman Center at Harvard University coordinating the Industrial Cooperation Project. She also worked on open innovation strategies at the University of Sao Paulo, and was an IP professor at FGV Law School and part of Creative Commons Brazil. Her first six years out of law school were spent working as an in-house transactional telecom and Internet policy lawyer for Terra Networks in Brazil and Spain. Carolina has also worked for the Wikimedia Foundation, shaping strategies to increase community engagement and foundation presence in Brazil.
"We're at a critical moment in international IP policy. People around the world have been galvanized by IP-maximalist trade agreements that threaten basic rights of Internet users," said Rossini. "EFF has always been on the front lines of the fight against these back-room deals, working hard to ensure that technology empowers consumers, creators, innovators, and citizens. I'm extraordinarily happy to join EFF's international team."
Rossini joins an expanded international team that brings new depth to EFF's work on global digital rights issues, including International Freedom of Expression Director Jillian York and Coordinator Eva Galperin, International Rights Director Katitza Rodriguez and Coordinator Rebecca Bowe, and International IP Coordinator Maira Sutton. Gwen Hinze, EFF's former International IP Director, will continue to work with the team as a Fellow.
"In our increasingly interconnected world, protecting digital rights is a global effort," said EFF Executive Director Shari Steele. "We're proud to welcome Carolina to EFF, and we're excited about the work we're doing to protect freedom everywhere."
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
EFF Calls Foul on Bogus 'Negligence' Claim
San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge today to reject a porn troll's ploy to make a Wi-Fi provider responsible for the purported copyright infringement of another user.
Liberty Media Holdings (LMH) is suing two roommates in New York, alleging the illegal downloading of a pornographic film, even though LMH argues that only one made the infringing copy. Remarkably, LMH claims that the non-downloading roommate is also responsible for copyright infringement, simply because the Internet subscription is in his name and he might have known his roommate sometimes made illegal downloads.
"This theory is absurd," said EFF Staff Attorney Mitch Stoltz. "Decades of copyright law make it clear – to be guilty of infringement you have to do more than just provide an Internet connection – you have to contribute actively to the infringement. This is a ridiculous attempt at expanding copyright law so it's easier for copyright trolls to extract more money from more innocent people."
Copyright trolls attempt to game the legal process, using improper claims and procedures to pressure alleged copyright infringers into settling lawsuits against them even where they have legitimate defenses. If LMH is successful with this latest ploy, Internet users across the country would suffer. Every day, cities, cafes, libraries, schools, and individuals operate open Wi-Fi networks, sharing their connection with the public. This is a valuable public service, part of federal policy to promote universal, convenient access to the Internet, and also promotes public safety. But if Wi-Fi providers could be held responsible for users' behavior, public access to the Internet would be sharply reduced because of liability fears.
"We've all been in a spot when we needed a few quick minutes online – when we were lost, for example, or had to send an urgent email," said EFF Intellectual Property Director Corynne McSherry. "More open Wi-Fi is a public good that we should support. We can't let the copyright trolls bend the law here. All of us who use the Internet throughout the day could lose out."
Thanks to Ray Beckerman for his assistance as local counsel.
For the full amicus brief:
https://www.eff.org/document/amicus-brief-11
Contacts:
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Statute Puts Online Libraries and Other Service Providers at Risk
Seattle - The Internet Archive has filed a federal challenge to a new Washington State law that intends to make online service providers criminally liable for providing access to third parties' offensive materials.
The Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to block the enforcement of SB 6251, a law aimed at combatting advertisements for underage sex workers but with vague and overbroad language that is squarely in conflict with federal law. Procedurally, the Internet Archive lawsuit was filed as an intervention into a similar suit, Backpage.com v. McKenna, filed last week.
"The Internet Archive, as an online library, archives the World Wide Web and other digital materials for researchers, historians, and the general public," said Brewster Kahle, Digital Librarian and founder of the Internet Archive. "We strongly support law enforcement efforts to combat child sex trafficking, but this new law could endanger libraries and other entities that bring access to websites and user-generated content."
SB 6251 was passed with the hope of criminalizing the dissemination of underage sex trafficking ads and imposing a requirement to confirm the ages of individuals in such ads prior to publication. The law, however, is fraught with problems. As written, the vaguely-worded statute – making it a felony to "directly or indirectly" provide access to any material that might constitute an "explicit or implicit" commercial offer for sex – could be read to apply not only to posters but to neutral entities that provide access to online information, including ISPs, Internet cafes, and libraries. This would result in a chilling effect as such entities begin feeling pressured to censor protected online speech in order to safely stay on the right side of the unclear law.
Washington's new statute also squarely conflicts with established federal law – Section 230 of the Communications Decency Act – that was passed with the dual aims of protecting Internet intermediaries from liability for most of what their users do and establishing a clear, national Internet policy to avoid the development of a confusing patchwork of state laws. If allowed to stand, SB 6251 would undermine this important Congressional policy decision that directly fosters free speech, innovation, and the dissemination of knowledge online. It would also set a dangerous precedent allowing individual states to regulate the Internet as each sees fit, establishing a speech-chilling "race to the bottom" with service providers restricting speech according to the most invasive state law on the books. Indeed, in the wake of SB 6251's passage, Tennessee passed a similar bill set to go into effect in July, and New York and New Jersey are considering their own proposed legislation.
"Laws passed with the laudable goal of combatting such a pernicious practice as child sex trafficking can nonetheless inflict collateral damage on the First Amendment," said EFF Senior Staff Attorney Matt Zimmerman. "Legislatures must do more than simply identify serious social ills but also prescribe solutions that are consistent with other important values. Clear legal protections for hosts and disseminators of third party content are bedrock legal principles that allow free speech to flourish online. While well intentioned, laws like SB 6251 simply take the wrong, dangerous approach."
Thanks to Venkat Balasubramani and Focal PLLC for their assitance as local counsel.
For the full motion to intervene:
https://www.eff.org/node/71002
For the full complaint from the Internet Archive:
https://www.eff.org/node/71003
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
EFF Charts the Privacy and Transparency Practices of the Internet's Biggest Companies
For Immediate Release: Thursday, May 31, 2012
San Francisco - When you use the Internet, you entrust your thoughts, experiences, locations, and more to companies like Google, Twitter, and Facebook. But what happens when the government asks these companies to hand over your private information? Will the company stand with you? Today, the Electronic Frontier Foundation (EFF) releases its second annual "When the Government Comes Knocking, Who Has Your Back?" report – this time as a white paper and chart tracking some of the Internet's biggest service providers on their public commitments to their users' privacy and security.
Increasingly, federal law enforcement agents are demanding that Internet companies provide their users' data as part of government investigations – sometimes fairly, sometimes unfairly. EFF's report examines 18 companies' terms of service, privacy policies, public representations, advocacy, and courtroom track records, awarding them gold stars for best practices in categories like "tell users about government data demands" and "fight for user privacy in courts."
"This year, we saw a big increase in the number of companies making a public promise to their users to inform them whenever possible when the government comes knocking," said EFF Legal Director Cindy Cohn. "This notice gives users the chance to fight back against government overreaches and to defend themselves if investigators want to unfairly fish around in their personal information. It appears that promising to notify your customers of government data demands is on the way to becoming an industry standard for responsible companies."
EFF first published its chart last year to recognize exemplary practices by some companies. We were pleased to see that Facebook, Dropbox, and Twitter have each upgraded their practices in the past year. Sonic.net, an ISP based in Santa Rosa, California, earned a gold star in every category. Cloud storage sites Dropbox and SpiderOak and business networking site LinkedIn also fared well, earning recognition in three categories each.
"Online service providers are the guardians of some of your most intimate data – everything from your messages, to location information, to the identities of your family and friends," said EFF Senior Staff Attorney Marcia Hofmann. "We wanted to acknowledge companies that are adopting best practices and taking exceptional steps to defend their users against government overreaches in the courts and in Congress."
In addition to upgrading their own practices, many Internet companies have joined with civil liberties groups into a powerful coalition working to clarify outdated privacy laws so that there is no question about when the government needs a warrant to access sensitive users data.
"This year, we saw a number of major Internet companies join the Digital Due Process coalition, which is aimed at getting Congress to make lasting improvements in the laws that protect our electronic privacy," said EFF Activism Director Rainey Reitman. "This should be a wakeup call to Congress to clarify outdated laws so there is no question that government agents need a court-ordered warrant before accessing sensitive location data, email content, and documents stored in the cloud."
For the full report "When the Government Comes Knocking, Who Has Your Back?":
https://www.eff.org/pages/who-has-your-back
Last year's report can be viewed here:
https://www.eff.org/pages/when-government-comes-knocking-who-has-your-back-2011
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Rainey Reitman
Activism Director
Electronic Frontier Foundation
rainey@eff.org
Internet Forum Can't Be Held Liable for What Commenters Post on Online
San Francisco - The Electronic Frontier Foundation (EFF) asked a judge today to block a reality TV star's attempts to censor critical comments about her company on a popular online fashion blog.
Corri McFadden, star of the VH1 show "House of Consignment," filed suit against Purseblog.com in a California federal court after a commenter accused McFadden's company, eDrop-Off, of "shill bidding" – making bogus bids to inflate the prices of designer goods the company sells in online auctions. But California has strong legal protections against lawsuits filed to chill participation in publicly significant discussions, and now McFadden is asking the court in California to let her dismiss the lawsuit without any penalty so that she can pursue it in a state with more favorable law. In a friend-of-the-court brief filed Friday, EFF urged the court in California not to let McFadden off the hook.
"This is a classic SLAPP suit – strategic litigation against public participation – and McFadden should have to face California's tough anti-SLAPP law, which lets defendants move to strike frivolous lawsuits and recover costs and fees if they win," said EFF Senior Staff Attorney Marcia Hofmann. "The plaintiffs set the stage by choosing to file their suit in California. The court should finish the case there as well, protecting Purseblog.com's speech rights by applying California law."
Additionally, the federal Communications Decency Act (CDA), as interpreted by the Ninth U.S. Circuit Court of Appeals, contains uniquely strong protections for free speech online, shielding hosts of online forums from liability for the speech of their users.
"Congress decided that speakers – not their soapboxes – should be responsible for what they say," said EFF Senior Staff Attorney Matt Zimmerman. "That's why the Internet hosts such an incredible diversity of content today. If sites could be held legally responsible for anything anyone said on them, no one would allow users to post controversial views online."
For the full brief in eDrop-Off v. Burke et al.:
https://www.eff.org/document/amicus-brief-9
Contacts:
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Bogus Copyright Infringement Claims Could Add Up to Fewer Choices, Higher Prices
New York - The Electronic Frontier Foundation (EFF) is urging a federal judge not to let television networks squash an innovative streaming service with a bogus copyright infringement lawsuit.
In an amicus brief filed today, EFF and Public Knowledge asked the court to block a preliminary injunction that could prevent Aereo Inc. from establishing a customer base in New York City, arguing that shutting down the service at this early stage sends a dangerous message to other start-up companies working to improve consumers' TV viewing experience.
"The threat of lengthy litigation would discourage any business from working to add value to the television viewing experience, leaving the market in the hands of a few established players," said EFF Staff Attorney Mitch Stoltz. "Remember, these are the same folks who tried to keep VCRs off the market years ago, and more recently fought viciously against remote DVRs, which allow cable subscribers access to content they've already bought but is stored elsewhere. This is yet another attempt by TV networks to profit from, control, or stop new technology they didn't think of first."
Aereo lets users in New York watch local channels by renting their own small antenna located at the Aereo facility, with the signal from the antenna sent over the Internet to that single user. The TV networks argue that this somehow constitutes a public performance and therefore infringes their copyright, even though it would be perfectly legal for someone to install their own antenna and run a wire to a TV set without paying a fee to anyone.
"All Aereo is doing, conceptually, is moving the rabbit ears from your roof to theirs," said EFF Senior Staff Attorney Kurt Opsahl. "Yet the TV networks want to play games with the law to get a cut of the profits or shut it down. We're asking the court to consider the legal and customary rights of television viewers, as well as the threats a preliminary injunction could bring to future innovation."
For the full brief in WNET v. Aereo Inc.:
https://www.eff.org/node/70851
Contacts:
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
New White Paper from EFF and the Immigration Policy Center Outlines Privacy and Security Concerns
San Francisco - Today the Immigration Policy Center (IPC) and the Electronic Frontier Foundation (EFF) release "From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond." The paper outlines the current state of U.S. government collection of biometric information and the problems that could arise from these growing databases of records. It also points out how immigrant communities are immediately affected by the way this data is collected, stored, and shared.
There is a growing push to link biometric collection with immigration enforcement. The U.S. Department of Homeland Security (DHS) takes approximately 300,000 fingerprints per day from non-U.S. citizens crossing the border into the United States, and it collects biometrics from noncitizens applying for immigration benefits and from immigrants who have been detained. In addition, state and local law enforcement officers regularly collect fingerprints and DNA, as well as face prints and even iris scans. All of these government databases are growing and are being increasingly interconnected. For example, the Secure Communities program takes the fingerprints of people booked into local jails, matches them to prints contained in large federal immigration databases, and then uses this information to deport people.
"Some people believe biometrics and databases are the silver-bullets that will solve the immigrant enforcement dilemma. But biometrics are not infallible, and databases contain errors. These problems can result in huge negative consequences for U.S. citizens and legal immigrants mistakenly identified," said Michele Waslin, Senior Policy Analyst at the IPC.
"Biometric data collection can lead to racial profiling and can disproportionately affect immigrants," said EFF Staff Attorney Jennifer Lynch. "It also gives the government a new way to find and track people throughout the United States. The government needs to act now to limit unnecessary biometric collection and address the serious privacy issues regarding the amount and type of data collected, as well as what triggers that data collection, with whom the data is shared, and the security of that data."
For the full white paper "From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities":
https://www.eff.org/document/fingerprints-dna-biometric-data-collection-us-immigrant-communities-and-beyond
For "From Fingerprints to DNA: By the Numbers":
https://www.eff.org/document/fingerprints-dna-numbers
For more on biometrics:
https://www.eff.org/issues/biometrics
Contacts:
Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
Copyright Office to Hear Public Testimony in Washington, D.C. and Los Angeles
Washington, D.C. and Los Angeles - Experts from the Electronic Frontier Foundation (EFF) will testify at public hearings held by the U.S. Copyright Office this month, urging officials to renew and expand the critical exemptions to the Digital Millennium Copyright Act (DMCA) that the Copyright Office granted in 2009 in response to EFF's requests to protect the rights of American consumers who modify electronic gadgets and make remix videos.
EFF Staff Technologist Dan Auerbach will testify on Friday, May 11th, in Washington, D.C., demonstrating the technology of "jailbreaking" – liberating gadgets to run operating systems and applications from any source, not just those approved by the manufacturer. On Thursday, May 17th, in Los Angeles, EFF Senior Staff Attorney Marcia Hofmann will testify about why it's important to clarify the legality of jailbreaking smart phones, tablets, and videogame consoles. At the same hearing in Los Angeles, EFF Intellectual Property Director Corynne McSherry will testify to why artists and critics deserve legal protection for creating and using short excerpts of video content to make new works of commentary and criticism. Hofmann and McSherry will testify again on June 4 and June 5 in Washington, D.C., to respond to opponents of EFF's exemption requests.
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 protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Exemptions are meant to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials. In 2009, EFF won exemptions for jailbreaking smartphones and for artists who remix videos. EFF filed new exemption requests in 2011, seeking to renew and expand the 2009 rulings.
WHAT:
Public hearings on DMCA Rulemaking
WHEN AND WHERE:
May 11 – 10 a.m.
Copyright Hearing Room, LM-408
James Madison Building, Library of Congress
101 Independence Ave. SE.
Washington, D.C.
May 17 – 9 a.m.
Moot Courtroom, Room 1310
University of California, Los Angeles, School of Law
405 Hilgard Avenue
Los Angeles, CA
For more on the DMCA rulemaking and EFF's testimony:
https://www.eff.org/deeplinks/2012/05/2012-dmca-rulemaking-primer
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Speculative Claims Against Yelp Barred by Federal Law
San Francisco - The Electronic Frontier Foundation (EFF) is urging a federal appeals court to block an attempt by disgruntled businesses to make an end-run around the federal law that protects Yelp and other online forums from liability for their users' reviews. In a friend-of-the-court brief filed with the U.S. Court of Appeals for the 9th Circuit Friday, EFF argues that the strong protections for hosts of forums in Section 230 of the Communications Decency Act (CDA) must be upheld to foster free speech online.
CDA 230 protects online service providers from liability and lawsuits over user-generated content, except in very narrow circumstances where the providers created or developed content themselves. In this case, several businesses filed suit against Yelp, claiming without factual support that the popular review site manipulated and manufactured reviews in order to coerce businesses to advertise on the website. A lower court already found that mere speculation of interference with public reviews was insufficient to evade the broad protection Congress created for online forums, and granted Yelp's motion to dismiss the case. In its amicus brief, EFF argued that lowering the standards for when a forum like Yelp has to be dragged through litigation would effectively chill online speech.
"The broad protections provided by CDA 230 are one of the main reasons we have so much speech online," said EFF Senior Staff Attorney Matt Zimmerman. "If online service providers like Yelp could be held liable for material posted by any one of their millions of users merely upon thin claims of 'manipulation,' providers would feel pressured to censor or eliminate forums altogether. The result is fewer places for people to participate online and a loss all of us who rely on user reviews and other user-generated material."
"The goal of Congress in enacting CDA 230 was clear: to ensure the Internet is a robust platform for users' free speech," said Senior Staff Attorney Marcia Hofmann. "Users post millions of reviews on Yelp each year, but sites like this wouldn't exist without CDA 230's protections. We're asking the appeals court to make sure that sites like Yelp continue to thrive and remain vigorous forums for Internet users to share opinions and recommendations."
For the full amicus brief in Levitt v. Yelp:
https://www.eff.org/document/amicus-brief-7
Contacts:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
EFF White Paper Outlines How Businesses Can Avoid Assisting Repressive Regimes
San Francisco - It's time for technology companies that sell surveillance and filtering equipment to step up and ensure they aren't helping governments in committing human rights violations. In a white paper released today entitled "Human Rights and Technology Sales," EFF outlines how corporations can avoid assisting repressive regimes.
The paper calls on companies to increase transparency of their dealings with potentially repressive regimes and to implement "Know Your Customer" standards for auditing technology sales, including review of the purchasing government's technical questions and customization requests. If the review indicates that the technologies or transactions may be used to facilitate human rights violations, the company should refrain from participating.
"Authoritarian governments around the world often rely on technologies built in North America and Europe to spy on their citizens – including listening in to cell phone calls, scanning crowd photographs with facial recognition tools, and monitoring mobile networks with voice recognition technology. These can have deadly ramifications for activists and others in repressive regimes," said EFF Director for International Freedom of Expression Jillian York. "We're asking companies to take responsibility for the uses that governments make of their products, instead of acting like 'repression's little helper.'"
There is ample evidence that sophisticated technology facilitates human rights abuses, and dozens of corporations are implicated. For example, Narus – a subsidiary of The Boeing Company – was revealed to have sold sophisticated surveillance equipment to Egypt, and California's Blue Coat Systems' equipment was being used in Syria. On the other hand, companies such as Websense have implemented programs to prevent their tools from being complicit in human rights abuses.
In the meantime, Congress has taken note of the problem. A House subcommittee has passed the Global Online Freedom Act (GOFA), which would require disclosure from companies about their human rights practices and limit the export of technologies that "serve the primary purpose of" facilitating government surveillance or censorship to countries designated as "Internet-restricting."
"GOFA is far from perfect, but it's an important step in protecting human rights and freedom of expression around the world," said EFF Activist Trevor Timm. "Tools available today can allow governments to track and spy every person in a country. Other software can block entire categories of websites, preventing citizens from accessing vital information. Technology companies have a responsibility to try to prevent their services from being used in this way."
For the full white paper "Human Rights and Technology Sales":
https://www.eff.org/document/human-rights-and-technology-sales
For more on the Global Online Freedom Act:
https://www.eff.org/deeplinks/2012/04/global-online-freedom-act
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Trevor Timm
Activist
Electronic Frontier Foundation
trevor@eff.org
Internet Advocacy Coalition Announces Twitter Campaign to Fight Privacy-Invasive Bill
San Francisco - Civil liberties organizations are launching a week of Internet-wide protests today against the Cyber Intelligence Sharing and Protection Act of 2011 (CISPA), the controversial cybersecurity legislation that would negate existing privacy laws and allow companies to share user data with the government without a court order.
The coalition is urging the public to take part in a Twitter protest directed at their lawmakers. The Electronic Frontier Foundation (EFF) has created an interactive tool for people to find their representatives and their Twitter handles, and to share how CISPA's privacy invasions would affect their day-to-day lives.
"CISPA would allow ISPs, social networking sites, and anyone else handling Internet communications to monitor users and pass information to the government without any judicial oversight," said EFF Activism Director Rainey Reitman. "The language of this bill is dangerously vague, so that personal online activity – from the mundane to the intimate – could be implicated."
The campaign will use the hashtags #CongressTMI and #CISPA. In addition to the Twitter protest, organizations are planning letters of opposition and publishing articles outlining the civil liberties implications of the bill.
"Some people believe that we have to sacrifice civil liberties in order to shore up cybersecurity, but that's misunderstanding both issues," said EFF Senior Staff Attorney Lee Tien. "Giving companies carte blanche to bypass federal law does not make us safer – it puts us at more risk."
CISPA is sponsored by Representatives Mike Rogers (R-MI) and C.A. “Dutch” Ruppersberger (D-MD). Stop Cyber Spying Week participants are calling on Congress to reject legislation that sacrifices civil liberties in the name of security, and specifically to reject any legislation that:
* Uses dangerously vague language to define the breadth of data that can be shared with the government.
* Hands the reins of America’s cybersecurity defenses to the NSA, an agency with no transparency and little accountability.
* Allows data shared with the government to be used for purposes unrelated to cybersecurity.
Participating groups include Access Now, American Civil Liberties Union, American Library Association, Avaaz, Bill of Rights Defense Committee, Canadian Internet Policy and Public Interest Clinic, Center for Democracy and Technology, The Constitution Project, Demand Progress, Electronic Frontier Foundation, Fight for the Future, Free Press, OpenMedia.ca, Open the Government, Privacy Rights Clearinghouse, Reporters Without Borders, Reverse Robo Call, Sunlight Foundation, Techdirt, and TechFreedom.
To take action against CISPA:
http://cyberspying.eff.org/
Contact:
Access Now
Mike Rispoli
Campaign and Media Strategy
mike@accessnow.org
Electronic Frontier Foundation
Rainey Reitman
Activism Director
rainey@eff.org
Fight for the Future
Tiffiniy Cheng
Co-Director
tycheng@gmail.com
Free Press Action Fund
Jenn Ettinger
Media Manager
jettinger@freepress.net
Reporters Without Borders
Delphine Halgand
DC Representative
dcdesk@rsf.org
Reverse Robo Call
Shaun Dakin
CEO
shaun@reverserobocall.com
Sunlight Foundation
Gabriela Schneider
Communications Director
gschneider@sunlightfoundation.com
Agencies Agree to Pay Damages, Delete Seized Data
Berkeley, CA - Two radical groups have settled their lawsuits over an armed, over-broad police raid after the law enforcement agencies agreed to delete improperly seized computer data and pay $100,000 in damages and attorney's fees. Moreover, the University of California-Berkeley Police Department (UCBPD) acknowledged that at the time of the raid one of the groups qualified for federal protections designed to protect journalists, publishers, and other distributors of information from police searches, despite the police's persistent denial of that status throughout the lawsuit.
UCBPD and the FBI raided the building housing the Long Haul, an alternative library, Infoshop and community center in Berkeley, in August of 2008 as part of an investigation into e-mail threats sent to UC animal researchers that allegedly came from public-access computers in the building. Agents conducted an armed search of both public and private rooms – cutting or unscrewing locks that protected private offices – and removed every computer from the building. The raid team seized clearly unrelated computers from behind the locked doors of the Slingshot collective, a division of Long Haul that has published the Slingshot newspaper for 24 years as well as the Slingshot Organizer, and from the office of East Bay Prisoner Support (EBPS), which published materials about prisoners' struggles. However, the federal Privacy Protection Act specifically protects publishers from search and seizure except in narrow, unrelated circumstances. The Long Haul and EBPS collectively filed suit and were represented by the Electronic Frontier Foundation (EFF) and the ACLU of Northern California.
As part of today's settlement, the UCPD:
* Conceded that it has no information that either the Long Haul or EBPS was connected with the e-mail threats;
* Acknowledged that the Long Haul was at the time of the raid a publisher protected by the Privacy Protection Act, designed to prevent against such searches; and
* Agreed to expand the scope and coverage of improved training regarding the provisions of the Privacy Protection Act that were first imposed in the wake of the 2008 raid.
Both the UCPD and the FBI also agreed to:
* Destroy the data they seized as part of the raid; and
* Pay a total of $100,000 in damages and attorneys’ fees caused by the raid.
"We hope that in view of this lawsuit and this favorable settlement, law enforcement will think twice before they raid other radical spaces on flimsy pretenses," said Jesse Palmer, a long-time participant in Long Haul operations. "The raid was an abuse of power. The police refused to show Long Haul representatives a copy of the search warrant, prevented anyone from watching what they were taking during the raid, and preferred to cut locks rather than accept our offer to unlock doors. The raid was a fishing expedition and an attempt to intimidate and harass radicals undertaken by the FBI and UCPD, but as the settlement demonstrates, it was the police who broke the law. We've done nothing wrong."
"I have no faith that this agreement will change the attitudes or behaviors of the UC police or the FBI," said EBPS representative Patrick Lyons. "From kicking in our door and stealing our stuff, to the now-infamous UC Davis pepper spray incident, it is clear that the UC cops are at war with radicals, anarchists, and activists, and that will not change. I do, however, think that it is important that when they attack us, we fight back. I sincerely appreciate the hard work of EFF and the ACLU because in this situation our best weapon was our ability to make the UC police and FBI spend huge amounts of money defending their actions and concealing their agenda."
Long Haul and EBPS plan to donate $500 of their portion of the settlement to the Occupy Oakland Anti-Repression Committee to assist others targeted by the police for their political beliefs.
The Long Haul is an all-volunteer collective that operates a community space with free computer access, a historical archive, and a lending library of radical books to members of the public at its Infoshop in Berkeley, California. They have been at their current location since 1979 and have been a 501(c)(3) tax exempt educational organization since 1994. EBPS publishes a newsletter of prisoners' writings and distributes literature to prisoners.
For the full settlement agreement:
https://www.eff.org/document/settlement-agreement-0
Contacts:
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Innocent Customers Deserve to Have Their Files Returned
Alexandria, VA - The Electronic Frontier Foundation (EFF) will ask a federal judge on Friday to establish a process that would allow lawful users of Megaupload's cloud storage service to get their files back. The hearing in USA v. Dotcom is set for 9 a.m. on April 13th at the federal courthouse in Alexandria, Virginia.
In January of this year, the U.S. government shut down Megaupload.com and related sites as part of a copyright infringement investigation. But in addition to the alleged illegal activity by some users of Megaupload, there were also innocent customers that used the service to store lawful material – users who have been blocked from accessing their data for months. At Friday's hearing, EFF Staff Attorney Julie Samuels will argue that Megaupload's customers deserve a court-approved procedure to retrieve their property before it's deleted.
WHAT:
Motion hearing in USA v. Dotcom
WHEN:
Friday, April 13
9 a.m.
WHERE:
Albert V. Bryan U.S. Courthouse
401 Courthouse Square
Alexandria, VA 22314
Judge Liam O'Grady - Courtroom 700
Contacts:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Ninth Circuit Blocks Dangerous Interpretation of Federal Statute
San Francisco - A federal appeals court today rejected a dangerous interpretation of the federal anti-hacking law, dismissing charges that would have criminalized any employee's use of a company's computers in violation of corporate policy.
The Electronic Frontier Foundation (EFF) filed an amicus brief in this case, U.S. v. Nosal, urging the court to come to this conclusion as part of its ongoing work to ensure fair application of the federal Computer Fraud and Abuse Act (CFAA).
"Basing criminal liability on violations of private computer use policies can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved," said the opinion by Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals.
In Nosal, the government prosecuted an ex-employee of an executive recruiting firm on the theory that he induced current company employees to use their legitimate credentials to access a proprietary database and provide him with information in violation of corporate computer-use policy. The government claimed that the violation of policy constituted a violation of the CFAA, a law with criminal penalties.
EFF argued in its amicus brief that turning mere violations of company policies into computer crimes could potentially create a massive expansion of the law – making millions of law-abiding workers criminals for innocent activities like sending a personal e-mail or checking sports scores from a work computer, and leaving them vulnerable to prosecution at the government's whim. The court agreed in an en banc decision, replacing a ruling last year in which a three-judge panel found that disloyal employees who breach computer use policies run afoul of the CFAA.
"We shouldn't have to live at the mercy of our local prosecutor," said the opinion. "Employees who call family members from their work phones will become criminals if they send an email instead. Employees can sneak in the sports section of the New York Times to read at work, but they'd better not visit ESPN.com."
"This is an important victory for all Americans who use computers at work," said EFF Senior Staff Attorney Marcia Hofmann. "Violating a private computer use policy shouldn't be crime, just as violating a website's terms of use shouldn't be a crime. These policies are often vague, arbitrary, confusing and contradictory. Putting people on the hook for criminal liability when they violate these agreements would leave millions of law-abiding computer users vulnerable to federal prosecution."
"EFF has been fighting these aggressive government hacking arguments for years," said EFF Staff Attorney Hanni Fakhoury. "We're happy to see the court recognize that the government overreached here, and it issued a thoughtful decision that protects the rights of users."
Full for the opinion in U.S. v. Nosal:
https://www.eff.org/node/70244
Contacts:
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Case Raises Key Questions About User Rights in Cloud-Based Storage
San Francisco - A small business owner who used Megaupload's cloud-based storage system as part of his daily operations has asked a federal court to establish a process that would allow him and other lawful Megaupload users to get their files back. The procedure would help rectify the collateral damage caused by the government's seizure of Megaupload.com as part of a copyright infringement investigation.
The Electronic Frontier Foundation (EFF) represents Kyle Goodwin, who runs a business reporting on high school sporting events in Ohio. Goodwin stored his video footage on Megaupload's servers as a backup to his hard drive. In January, the FBI shut down Megaupload.com and executed search warrants on the company's servers, locking out all Megaupload customers in the process. When Goodwin's hard drive crashed, he could not get access to any of his own video files, which he needed to conduct his business.
"The court can help make Mr. Goodwin – an innocent party here – whole again," said EFF Staff Attorney Julie Samuels. "With government seizures growing, we're likely to see more and more cases like this, where lawful customers of a cloud service lose property in a federal copyright case. We're hoping the court will set an important precedent to protect users from overzealous government agents."
Megaupload was leasing some of its servers from hosting company Carpathia, and after the government finished its examination of the servers, it told Carpathia it was free to delete the contents. This week, Carpathia moved for a protective order that would allow for an approved procedure for customers to retrieve their files before deletion. The brief EFF filed today was in support of that motion, urging the judge to expedite the return of rightful property to Goodwin and other lawful Megaupload users.
"Mr. Goodwin has suffered a significant loss to his business, through no fault of his own." said EFF Intellectual Property Director Corynne McSherry. "Megaupload's innocent users deserve an opportunity to get their important data back before it's destroyed forever."
EFF was assisted by co-counsel Abraham Sofaer of the Hoover Institution and John Davis of Williams Mullen.
For the full brief:
https://www.eff.org/document/brief-interested-party-kyle-goodwin
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org
EFF Argues that Subpoenas Threaten Users' Anonymous Speech Rights
San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court Wednesday to block administrative subpoenas from the Securities and Exchange Commission (SEC) that would reveal the identities of three pseudonymous Gmail users without meeting the legal standards for identifying anonymous speakers.
In an amicus brief filed in the U.S. Court of Appeals for the Ninth Circuit, EFF argued that the SEC failed to support its subpoenas with sufficient evidence to demonstrate a compelling need for the information that would overcome the emailers' constitutional right to speak anonymously.
"The First Amendment provides a baseline level of protection for speakers who choose to communicate their messages to the world anonymously or pseudonymously," said EFF Senior Staff Attorney Matt Zimmerman. "Lawbreakers may not hide behind the First Amendment, but investigating agencies cannot force companies like Google to disclose the identities of their customers who are speakers without demonstrating the investigation is legitimate. Here, the SEC has failed to provide anything but speculation that a law was even broken."
The SEC's subpoenas are part of an investigation into a potential "pump and dump" scheme involving Jammin' Java, Inc. which saw its stock price soar and plummet within a short period of time in late 2010 and early 2011. The SEC has argued that "online newsletters" potentially containing "materially misleading information" were distributed around the time of the stock price fluctuation. However, the SEC has not explained why it has targeted the Gmail account holders, nor has it even identified any newsletters in question, much less link the users to any allegedly illegal activities. In Wednesday's amicus filing, EFF explained why it would be particularly dangerous to allow government agencies the ability to investigate speakers without demonstrating a legitimate need for the information.
"Agencies like the SEC wield enormous powers to intrude into the private lives of Americans," Zimmerman said. "Especially because such agencies can ordinarily issue subpoenas without the direct oversight of the courts, courts must ensure that First Amendment rights be given full effect."
For the full amicus brief:
https://www.eff.org/document/amicus-brief-eff
For more on anonymity:
https://www.eff.org/issues/anonymity
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Recent Supreme Court Ruling Brings New Questions About Long-Term Surveillance
San Francisco - The Electronic Frontier Foundation (EFF) joined the American Civil Liberties Union (ACLU) Foundation and the ACLU Foundation of Texas Friday in backing a judge who required a search warrant before approving the seizure of two months of cell phone location data by law enforcement.
In this case, the government asked a magistrate judge to approve a request to two cell phone companies for 60 days of cell phone location records as part of a routine law enforcement investigation. The judge denied the request, saying it was necessary for the government to get a warrant based on probable cause before it could obtain the records. In an amicus brief filed in the U.S. Court of Appeals for the 5th Circuit, EFF argues that the judge was correct, as getting a warrant is essential to ensuring Fourth Amendment protections.
"The Supreme Court ruled earlier this year in United States v. Jones that the GPS tracking of a vehicle without a warrant violates the reasonable expectation of privacy guaranteed by the Fourth Amendment to the Constitution. This is a very similar situation," said EFF Staff Attorney Hanni Fakhoury. "People carry their cell phones with them wherever they go, all day long. Records of where we've been can reveal information about our health, our religion, our hobbies, and our politics. As technology advances, these records will become only more detailed and intrusive."
The government claims that cell phone users voluntarily disclose their physical location to their service provider every time their phone connects to a cell phone tower, meaning they give up their privacy rights under the "third-party doctrine." However, this theory would undermine privacy in nearly any networked communication. In fact, in the Jones case, Justice Sonia Sotomayor expressed concern about the third-party doctrine, writing that it was "ill-suited to the digital age."
"The judge in this case has a right to demand probable cause before allowing access to this sensitive information," Fakhoury said. "This is a powerful tool that police should be able to use in criminal investigations, but only after they can get a warrant based on probable cause."
The Center for Democracy and Technology (CDT) and the National Association of Criminal Defense Lawyers (NACDL) also signed on to Friday's brief.
For the full amicus brief:
https://www.eff.org/document/amicus-brief-us-court-appeals-5th-circuit
For more on cell phone tracking:
https://www.eff.org/issues/cell-tracking
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
EFF and Other Groups Led Campaign for Neutrality in Payment Services
San Francisco - Payment service provider PayPal has announced a new speech-friendly policy for online book sales, reversing plans to shut off payment processing to publishers of certain forms of erotic literature.
"Free speech in the 21st Century depends on a chain of electronic service providers, and financial services like PayPal play a critical role in the unfettered exchange of information and ideas in the digital world," said Rainey Reitman, Activism Director of the Electronic Frontier Foundation (EFF). "We are so glad that PayPal has clarified its policy, and won't interfere with lawful access to legal content."
EFF joined the National Coalition Against Censorship, American Booksellers Foundation for Free Expression, the ACLU of California and other groups in calling on PayPal to support free speech after online publishers and retailers – including Book Strand, Smashwords, and eXessica – were notified that their accounts would be closed unless they stopped selling any erotic books containing descriptions of rape, incest, and bestiality. In an open letter to PayPal, the coalition told the company that this would severely restrict the public's access to a wide range of legal material.
Today, PayPal announced that it would focus its policy on e-books that contain potentially illegal images under U.S. law – not on text-only descriptions. Also, PayPal says it will no longer demand that publishers remove all books in a category. Instead, it will identify specific books that might violate the law, and give the site operator or author opportunity to respond and challenge the notice.
"The Internet cannot be a true global forum for expression if private companies that provide communication and payment services operate as morality police," said EFF Senior Staff Attorney Lee Tien. "The Internet is a global forum where ideas can be freely aired, exchanged, and criticized. We're especially pleased that PayPal will only target specific works and not entire websites."
For PayPal's statement:
https://www.thepaypalblog.com/2012/03/update-paypal%E2%80%99s-acceptable-use-policy
For the coalition letter to PayPal:
https://www.eff.org/deeplinks/2012/03/free-speech-coalition-calls-paypal-back-misguided-book-censorship-policy
Contacts:
Rainey Reitman
Activism Director
Electronic Frontier Foundation
rainey@eff.org
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org
Pornographic Film Companies Abusing the Law to Get Quick Settlements
San Francisco - The Electronic Frontier Foundation (EFF) is backing Internet service providers (ISPs) in an effort to quash subpoenas issued in a predatory lawsuit over the alleged illegal downloading of adult material.
The American Civil Liberties Union Foundation and the ACLU of the Nation's Capitol joined EFF in the amicus brief submitted today, arguing that AF Holdings unfairly sued more than a thousand unnamed Internet users in the District of Columbia, even though the users were located all over the country. AF Holdings argues that it is allowed to obtain the identities of the ISPs' customers in D.C., because they might reside in the District or the alleged infringement may have occurred there. But the ISPs that were subpoenaed – including Cox, AT&T, and Verizon – told the court that it was easy to discover that only 20 of the IP addresses were associated with Washington, D.C.
"AF Holdings could have found out where the IP addresses at issue were probably located simply by using a geo-location service that costs about $8 per thousand addresses," said EFF Intellectual Property Director Corynne McSherry. "But the company didn't do that, because its doesn't want to know. Following the rules would make its job harder, requiring it to file lawsuits across the country against thousands of individuals rather than suing all Does at once. Thousands of lawsuits just doesn't fit the copyright troll business model."
Today's brief is the latest in EFF's efforts to stop copyright trolls – content owners and lawyers who team up to extract settlements from thousands of defendants at a time. Typically, once the identities of suspected infringers are obtained from ISPs, plaintiffs send settlement letters offering to make the accusations go away for a few thousand dollars, a sum considerably smaller than what defendants would need to fight the case in court. In addition to the problem of jurisdiction, many of these cases also lump hundreds of defendants together, making it even harder for Internet users to defend themselves. When you consider the added stigma over association with pornography, you can see how the deck is stacked against subpoena targets.
"Once these copyright trolls get names from ISPs, the cases are essentially over," said EFF Staff Attorney Mitch Stoltz. "We can't let them continue to game the system with these shoddy lawsuits. We're asking the judge to force AF Holdings to play by the rules and respect the rights of each and every defendant."
For the full amicus brief:
https://www.eff.org/document/amicus-brief-6
For more about copyright trolls: https://www.eff.org/issues/copyright-trolls
https://www.eff.org/issues/copyright-trolls
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Warner Must Take Responsibility for Baseless Copyright Infringement Notices
San Francisco - The Electronic Frontier Foundation (EFF) urged a federal judge Monday to reject arguments from Warner Brothers Entertainment claiming that the company's automated scheme to send copyright infringement notices absolves it of responsibility for the system's major flaws.
In this case, Warner is accused of sending thousands of takedown notices for content it did not own to a cyber-locker site called Hotfile. Hotfile asked for damages under the Digital Millennium Copyright Act (DMCA), which holds copyright users accountable if they send takedown notices in bad faith. However, Warner insists that while it knew it was issuing some bad takedown requests with its semi-automated system, the errors should be excused by the court because a computer made the mistake – not a human. In an amicus brief filed Monday, EFF argues that Warner cannot wash its hands of its responsibility for the improper removal of content from Hotfile's servers.
"Hotfile's customers unfairly lost access to content because of Warner's bogus takedowns. But under Warner's theory, any company could sidestep accountability for abusing the DMCA by simply outsourcing the process to a computer," said EFF Intellectual Property Director Corynne McSherry. "In fact, the companies would have a perverse incentive to dumb down the process, removing human review. What Warner is doing here is a ploy to undermine the DMCA provisions that protect Internet users from overbroad and indiscriminate takedowns like the ones it issued."
The publicly available facts in this case indicate that Warner's system only considered the title of the work – not nearly enough information to base a good faith belief of any copyright infringement. Warner's system took down files with words in their titles like "The Box," "The Town," and "Unknown," apparently without checking to see if the file was a Warner movie or a child's book report or something else. EFF told the court Monday that Warner knew this driftnet technique would inevitably cause a substantial amount of lawful content to be removed from Hotfile.
"Cloud storage sites like Hotfile are becoming increasingly important," said EFF Staff Attorney Mitch Stoltz. "But improper takedowns like Warner's undermine their usefulness. Companies must be held responsible when their sloppy processes hurt other businesses and Internet users."
For the full amicus brief:
https://www.eff.org/document/amicus-brief-5
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Firefox Browser Extension Detects and Notifies Users of Encryption Weaknesses
San Francisco - The Electronic Frontier Foundation (EFF) launched the 2.0 version of HTTPS Everywhere for the Firefox browser today, including an important new update that warns users about web security holes.
The "Decentralized SSL Observatory" is an optional feature that detects encryption weaknesses and notifies users when they are visiting a website with a security vulnerability – flagging potential risk for sites that are vulnerable to eavesdropping or "man in the middle" attacks.
"In recent weeks, an unexpected weakness in the encryption used by many routers, firewalls and VPN devices made big news," said EFF Technology Projects Director Peter Eckersley. "The new version of HTTPS Everywhere for Firefox will let users know when they connect to a website or device that has a security problem – including weak key problems like the ones that were disclosed two weeks ago – giving people the information they need to protect themselves."
The HTTPS Everywhere browser extension has already been installed more than a million times since it was first launched in 2010 in collaboration with the Tor Project. HTTPS Everywhere helps secure web use by encrypting connections to more than 1,400 websites, using carefully crafted rules to switch sites from HTTP to HTTPS whenever possible, increasing your security and privacy. Without HTTPS, your online reading habits and activities are vulnerable to eavesdropping, and your accounts are vulnerable to hijacking.
"EFF and the Tor Project created HTTPS Everywhere to make it easier for people to keep their usernames, passwords, and browser histories secure and private. Now, the 2.0 release also gives Internet users more information about deeper security problems they couldn't spot on their own," said Eckersley. "This is an extra level of protection that we encourage Firefox users to download, install, and use."
The user interface for HTTPS Everywhere for Firefox has now been translated into 12 languages, as browser security is critical in countries around the world.
Also available today is a beta version of HTTPS Everywhere for the Chrome browser. The Chrome release includes the increased encryption features available in the Firefox version, but it does not yet notify users of weak key vulnerabilities and other certificate problems.
To download or update HTTPS Everywhere:
https://www.eff.org/https-everywhere
Contact:
Peter Eckersley
Technology Projects Director
Electronic Frontier Foundation
pde@eff.org
Federal Law and First Amendment Protect Criticism of Attorneys and Law Firms
San Francisco - The Electronic Frontier Foundation (EFF) has filed suit in federal court to block threats aimed at LawyerRatingz.com, a website that allows Internet users to write comments and rate attorneys.
A Florida law firm – the Law Offices of Adrian Philip Thomas, P.A. – claims to have lost business based upon negative ratings and reviews posted on LawyerRatingz.com, which included complaints about Mr. Thomas, his billing rates, and his proposed contingency fees. The firm repeatedly threatened legal action against LawyerRatingz.com unless all comments – positive or negative – were removed from the site. LawyerRatingz.com, represented by EFF, filed suit Wednesday against Thomas and his firm, asking for a judicial ruling that LawyerRatingz.com is not legally responsible for material posted by third parties as well as an end to the baseless legal threats.
"Mr. Thomas's claims are meritless and run afoul of bedrock legal principles protecting website operators," said EFF Senior Staff Attorney Matt Zimmerman. "Section 230 of the Communications Decency Act categorically protects providers of 'interactive computer services' from suits such as this one seeking to make them responsible for the speech of their users. Without such protections, valuable sites like LawyerRatingz.com – or Facebook or Yelp or individual blogs that rely upon user comments – simply could not exist."
This is the latest example of legal threats issued to website operators that imply heightened reputational rights on behalf of professionals, such as doctors and lawyers, and demanding that critical reviews be removed. In a 2011 case, a California dentist sued review site Yelp, seeking to hold it responsible for critical reviews posted by a former patient. The case was ultimately dismissed and the dentist was forced to pay the reviewer's and Yelp's attorneys' fees. A website developed by Santa Clara and Berkeley law schools, DoctoredReviews.com, documents efforts by doctors to prohibit critical reviews of their care. In the declaratory relief suit filed Wednesday, LawyerRatingz.com argues that complaints about third party posts have to be taken up with reviewers themselves.
"CDA 230 plainly provides legal protection against these kinds of threats, but small website operators are nonetheless coerced by meritless demands that would ordinarily be too expensive to litigate," Zimmerman said. "Given the critical role played by intermediaries such as LawyerRatingz.com in providing platforms for Internet users to express their views, it is important to give force to those protections and encourage website operators to fight against baseless claims like these."
For the full complaint:
https://www.eff.org/document/complaint-6
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Privilege Against Self-Incrimination Applies to Act of Decrypting Data
San Francisco - A federal appeals court has found a Florida man's constitutional rights were violated when he was imprisoned for refusing to decrypt data on several devices. This is the first time an appellate court has ruled the 5th Amendment protects against forced decryption – a major victory for constitutional rights in the digital age.
In this case, titled United States v. Doe, FBI agents seized two laptops and five external hard drives from a man they were investigating but were unable to access encrypted data they believed was stored on the devices via an encryption program called TrueCrypt. When a grand jury ordered the man to produce the unencrypted contents of the drives, he invoked his Fifth Amendment privilege against self-incrimination and refused to do so. The court held him in contempt and sent him to jail.
The Electronic Frontier Foundation (EFF) filed an amicus brief under seal, arguing that the man had a valid Fifth Amendment privilege against self-incrimination, and that the government's attempt to force him to decrypt the data was unconstitutional. The 11th U.S. Circuit Court of Appeals agreed, ruling that the act of decrypting data is testimonial and therefore protected by the Fifth Amendment. Furthermore, the government's limited offer of immunity in this case was insufficient to protect his constitutional right, because it did not extend to the government's use of the decrypted data as evidence against him in a prosecution.
"The government's attempt to force this man to decrypt his data put him in the Catch-22 the 5th Amendment was designed to prevent – having to choose between self-incrimination or risking contempt of court," said EFF Senior Staff Attorney Marcia Hofmann. "We're pleased the appeals court recognized the important constitutional issues at stake here, and we hope this ruling will discourage the government from using abusive grand jury subpoenas to try to expose data people choose to protect with encryption. "
A similar court battle is ongoing in Colorado, where a woman named Ramona Fricosu has been ordered by the court to decrypt the contents of a laptop seized in an investigation into fraudulent real estate transactions. EFF also filed a friend of the court brief in that case, arguing that Fricosu was being forced to become a witness against herself. An appeals court recently rejected her appeal, and she has been ordered to decrypt the information this month.
"As we move into an increasingly digital world, we're seeing more and more questions about how our constitutional rights play out with regards to the technology we use every day," said EFF Staff Attorney Hanni Fakhoury. "This is a case where the appeals court got it right – protecting the 5th Amendment privilege against self-incrimination."
John Doe was represented by Chet Kaufman of the Federal Public Defender's Office in Tallahassee.
For the full court ruling:
https://www.eff.org/document/opinion
Contacts:
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Copyright Lawsuit Threatened Essential Tool for Engineers Around the World
San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce that a copyright lawsuit threatening an important database of time zone information has been dismissed. The astrology software company that filed the lawsuit, Astrolabe, has also apologized and agreed to a 'covenant not to sue' going forward, which will help protect the database from future baseless legal actions and disruptions.
Software engineers around the world depend on the time zone database to make sure that time-stamps for email and other files work correctly no matter where you are. However, last September, Astrolabe filed a lawsuit against Arthur David Olson and Paul Eggert – the researchers who coordinated the database's development for decades – because the database includes information from an atlas in which Astrolabe claimed to own copyright. But facts – like what time the sun rises – are not copyrightable. EFF, along with co-counsel Adam Kessel and Olivia Nguyen at the Boston office of Fish & Richardson P.C, promptly signed on to defend Olson and Eggert and protect this essential tool. In January, EFF advised Astrolabe that Olson and Eggert would move for sanctions if Astrolabe did not withdraw its complaint. Today's dismissal followed.
In a statement, Astrolabe said, "Astrolabe's lawsuit against Mr. Olson and Mr. Eggert was based on a flawed understanding of the law. We now recognize that historical facts are no one's property and, accordingly, are withdrawing our Complaint. We deeply regret the disruption that our lawsuit caused for the volunteers who maintain the TZ database, and for Internet users."
"It's a fundamental principle of copyright law that facts are not copyrightable, and Astrolabe should have known that," said EFF Intellectual Property Director Corynne McSherry. "While the lawsuit should never have been filed, we're pleased that the legal threat to an important resource has been eliminated.
"We are grateful that EFF and its co-counsel at Fish & Richardson were able to step in and assist us, so that we could help ensure the TZ database would continue to be available," said Eggert and Olson.
For more on this case:
https://www.eff.org/cases/astrolabe-v-olson
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Pages
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