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

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

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

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

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

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

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

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

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

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

Contacts:

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

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

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

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

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

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

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

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

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

Contact:

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

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

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

Attorney Peter Smith. Credit: Lukins & Annis

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

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

What: Oral Argument in Smith v. Obama

Who: Peter Smith, counsel for Anna Smith

Date: Monday, Dec. 8, 2014

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

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

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

For Smith's appellate briefs:

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

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

Contact:

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

San Francisco - The Electronic Frontier Foundation (EFF) is helping to launch a new non-profit organization that aims to dramatically increase secure Internet browsing. Let's Encrypt is scheduled to offer free server certificates beginning in summer 2015.

"This project should boost everyday data protection for almost everyone who uses the Internet," said EFF Technology Projects Director Peter Eckersley. "Right now when you use the Web, many of your communications—your user names, passwords, and browsing histories—are vulnerable to hackers and others. By making it easy, fast, and free for websites to install encryption for their users, we will all be safer online."

Currently, most Internet traffic is unencrypted, meaning most interactions you have with websites leave your accounts vulnerable to eavesdropping by everyone from a minimally competent hacker to the U.S. government. The HTTPS protocol—in contrast to HTTP—encrypts your connection and verifies the authenticity of sites, protecting your data and personal information. EFF has been campaigning successfully for a number of years to spread HTTPS from payment pages and banking sites to email, social networking, and other types of sites. But there are still hundreds of millions of domains that lack this protection.

The new Let's Encrypt project aims to solve that. Let's Encrypt is a new free certificate authority, which will begin issuing server certificates in 2015. Server certificates are the anchor for any website that wants to offer HTTPS and encrypted traffic, proving that the server you are talking to is the server you intended to talk to. But these certificates have historically been expensive, as well as tricky to install and bothersome to update. The Let's Encrypt authority will offer server certificates at zero cost, supported by sophisticated new security protocols. The certificates will have automatic enrollment and renewal, and there will be publicly available records of all certificate issuance and revocation.

Let's Encrypt will be overseen by the Internet Security Research Group (ISRG), a California public benefit corporation. ISRG will work with Mozilla, Cisco Systems Inc., Akamai, EFF, and others to build the much-needed infrastructure for the project and the 2015 launch.

"The Let's Encrypt certificate authority will dramatically increase the ability of websites around the world to implement HTTPS, increasing the security of hundreds of millions of Internet users every day," said Eckersley.

For Let's Encrypt:
https://letsencrypt.org

For more on Let's Encrypt and how it will work:
https://www.eff.org/deeplinks/2014/11/certificate-authority-encrypt-entire-web

Contacts:

Peter Eckersley
   Technology Projects Director
   Electronic Frontier Foundation
   pde@eff.org

Josh Aas
   Let's Encrypt
   press@letsencrypt.org

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

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

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

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

Date:
Thursday, November 20

Time:
Rally – 5:30 pm
Forum – 7 pm

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

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

Contact:

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

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

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

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

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

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

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

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

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

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

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

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

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

Contact:

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

San Francisco - The Electronic Frontier Foundation (EFF) filed six exemption requests with the U.S. Copyright Office today, part of the elaborate, every-three-year process to right the wrongs put in place by the Section 1201 of the Digital Millennium Copyright Act (DMCA). EFF's requests received crucial assistance from the Organization for Transformative Works, the NYU Technology Law & Policy Clinic, attorney Marcia Hofmann, and former EFF intern Kendra Albert.

Two of EFF's requests this year are on behalf of people who need to access the software in cars so they can do basic things like repair, modify, and test the security of their vehicles. Because Section 1201 of the DMCA prohibits unlocking "access controls"—also known as digital rights management (DRM)—on the software, car companies can threaten anyone who needs to get around those restrictions, no matter how legitimate the reason.

"The DMCA was supposed to help protect against copyright infringement, but it's been abused to interfere with all kinds of lawful activities that have nothing to do with infringement," said EFF Intellectual Property Director Corynne McSherry. "Software is in all kinds of devices, from cars to coffee-makers to alarm clocks. If that software is locked down by DRM, it's likely that you can't tinker, repair, and re-use those objects without incurring legal risk."

EFF's other requests this rulemaking include one for users who want to continue to play "abandoned" video games. For example, some users may need to modify an old video game so it doesn't perform a check with an authentication server that has since been shut down. EFF has also asked the Copyright Office to renew previous exemptions issued for jailbreaking smartphones, and extend them to tablets and other mobile devices—liberating them to run operating systems and applications from any source, not just those approved by the manufacturer. EFF also asked for renewal and partial expansion of the exemptions for remix videos that use excerpts from DVDs, Blu-Ray discs, or downloading services.

"These requests highlight some of the ways that Section 1201 of the DMCA has given the Librarian of Congress a veto on innovation and creativity," said EFF Staff Attorney Mitch Stoltz. "We and many other organizations will have to spend the next year begging the Copyright Office to make sure copyright law doesn't stop user choice and creative expression."

EFF's exemption requests are part of the regular rulemaking process from the Library of Congress and the Copyright Office. Congress created this system to act as a "safety valve" to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials. But that safety valve is hugely flawed. The every-three-year procedure is burdensome and confusing, with high hurdles to success. Even if an exemption is granted, supporters still have to come back to get it renewed or expanded, as technology develops.

"Technologists and artists should not have to get permission from Washington before they create, learn, and innovate, especially when the window to seek permission only comes once every three years," said EFF Staff Attorney Kit Walsh. "This rulemaking isn't the 'safety valve' we need to defend free speech and innovation from Section 1201. But until the law is fixed, we'll do our part to fight for those rights before the Copyright Office and in the courts."

For the full petitions:
https://www.eff.org/cases/2015-dmca-rulemaking

Contacts:

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

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Kit Walsh
   Staff Attorney
   Electronic Frontier Foundation
   kit@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) today released a new report and scorecard that shows what online service providers are doing to protect users from baseless copyright and trademark complaints.

"Who Has Your Back: When Copyright and Trademark Bullies Threaten Free Speech" [PDF] examines how online service providers handle copyright and trademark-based takedown requests. The report expands upon EFF's influential "Who Has Your Back" annual report covering how online service providers protect users' data from government requests.

"When a private citizen or corporation wants to silence speech on a major online platform, the quickest method is often a copyright or trademark complaint," EFF Director of Copyright Activism Parker Higgins said. "EFF has worked for many years to help people whose speech is unfairly targeted by these sorts of complaints, and we've seen how important it is that speech platforms have policies that help protect lawful users."

Click to Enlarge

EFF examined 13 companies and issued stars if they met the baseline standards for what a service can do to defend its users' speech against copyright and trademark bullies. The services could receive a maximum of five stars, based on criteria including publicly documented procedures for responses to DMCA takedown notices and counter-notices, how the services handle trademark disputes, and if the company issued detailed transparency reports.

Automattic's Wordpress.com and NameCheap were the only two companies to receive five out of five stars. However, two other companies were recognized for going the extra mile: Etsy, for providing educational guides, and Twitter, for publishing regular and thorough transparency reports. Overall, 10 companies did not publish adequate transparency reports, highlighting an information black hole for consumers. Additionally, four companies missed a star for their counter-notice practices—a critical procedure for restoring content that may have been taken down without cause.

"Major online platforms are essential to online expression, so their policy decisions can have a huge impact on public discourse," EFF Intellectual Property Director Corynne McSherry said. "As users choose which platforms will host their updates, writing, images, and videos, they ought to know which of these services have publicly committed to treating their speech fairly and even helping them fight back against bullies that would try to take it down."

For the report:
https://www.eff.org/pages/who-has-your-back-copyright-trademark-2014

For the shareable infographic:
https://www.eff.org/files/who-has-your-back-copyright-trademark-header.png

Contact:

Parker Higgins
   Director of Copyright Activism
   Electronic Frontier Foundation
   parker@eff.org

San Francisco - The Electronic Frontier Foundation (EFF), along with reddit and the Internet Archive, today filed formal comments with the New York State Department of Financial Services opposing the state's proposed regulations for digital currencies such as Bitcoin. In the letter, EFF argues that on top of damaging privacy and harming innovation, New York's "BitLicense" regulatory scheme also risks infringing on First Amendment rights to freedom of expression and association.

The State of New York is currently considering BitLicense, a sprawling regulatory framework that would mandate licenses for a wide range of companies in the digital currency space. The regulations would force applicants to submit significant personal information to the state, including fingerprints and head-shot photographs. The policy would also require these companies to maintain detailed records about all transactions for 10 years, including identity data of users.

"Digital currencies such as Bitcoin strengthen privacy and are resistant to censorship," EFF Activism Director Rainey Reitman said. "We should consider this a feature, not a bug; it's an innovative way of importing some of the civil liberties protections we already enjoy offline into the digital world."

EFF notes that digital currency protocols are used for more than just payments—they have expressive and associational uses, too. Bitcoin-like systems are used for organizing and engaging with groups or communities. In addition, Bitcoin block chains frequently contain political speech, such as famous quotes and portraits of prominent historical figures. As currently written, EFF argues, the BitLicense regulations place an unacceptable burden on free speech and association.

"The courts have long recognized that code is speech protected by the First Amendment," EFF Special Counsel Marcia Hofmann said. "At their core, digital currency protocols are code. Attempts to regulate code must include robust protections to ensure constitutionally protected speech is not stifled, and the BitLicense proposal would undermine those First Amendment principles."

On Oct. 15, EFF launched an online activism campaign encouraging Internet users to oppose the BitLicense proposal by submitting comments to the New York State Department of Financial Services.

For the text of EFF's comments:
https://www.eff.org/document/bitlicense-comments-eff-internet-archive-and-reddit

For EFF's activism campaign:
https://www.eff.org/deeplinks/2014/10/beware-bitlicense-new-yorks-virtual-currency-regulations-invade-privacy-and-hamper

Contact:

Rainey Reitman
   Activism Director
   Electronic Frontier Foundation
   rainey@eff.org

Update: The court announced early Wednesday that it will not livestream the audio of the NSL case.  Audio available here http://www.ca9.uscourts.gov/media/view.php?pk_id=0000013407.

San Francisco, CA - The Electronic Frontier Foundation (EFF) will urge a federal appeals court next week to uphold a groundbreaking ruling that the National Security Letter (NSL) provisions of the USA Patriot Act are unconstitutional. The hearing is set for 9 a.m. on October 8 in San Francisco.

Months before Edward Snowden kicked off the international debate over electronic surveillance, EFF scored a major victory when a federal judge ordered the FBI to cease its practice of issuing NSLs—demands to telecommunication providers to provide information about their users that are not approved in advance by a judge.

The lower court found that the gag orders, which are almost always issued by the FBI in tandem with the NSLs, violate the First Amendment. In EFF's cases, these gag orders have forced EFF's clients to keep their identities hidden, preventing them from discussing the NSLs publicly or even revealing their involvement in this case. The court also found that the limited, after-the-fact judicial review procedures violate the separation of powers.

EFF Senior Staff Attorney Kurt Opsahl will deliver oral arguments at the hearing at the United States Court of Appeals for the Ninth Circuit. Audio of the arguments will be live streamed through the court's website. The identity of the clients will not be disclosed in Wednesday's hearing.

What: Oral Arguments in Under Seal v. Eric Holder, Jr. (consolidated cases)

Who: EFF Senior Staff Attorney Kurt Opsahl

When: 9 a.m. PT, Oct. 8, 2014

Where: James R. Browning Courthouse, Courtroom 4
95 7th Street
San Francisco, CA

Opsahl will be available for interviews at the courthouse immediately after the hearing.

Applications to bring a camera into the courtroom must be submitted by the close of business on Friday, Oct. 3. Details at: http://www.ca9.uscourts.gov/news_media/

Live oral arguments will be streamed at:
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000006581

For EFF's briefs:
https://www.eff.org/files/2014/03/27/nsl.13-15957.13-16731.secondoffourbriefs.redacted.0320141.pdf

https://www.eff.org/files/2014/07/08/casesqw.reply_.brief_.redacted.pdf

For more on NSLs, visit our NSL Frequently Asked Questions page:
https://www.eff.org/issues/national-security-letters/faq

Contact:

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

Newark, NJ - Electronic Frontier Foundation (EFF) Staff Attorney Hanni Fakhoury will appear before a New Jersey Superior Court judge on Monday, Sept. 22 to oppose a subpoena issued to MIT students over their prize-winning Bitcoin mining program, Tidbit.

Tidbit was designed to serve as an alternative to viewing online advertising by allowing website users to help mine Bitcoins for the site they're visiting instead. It was developed in late 2013 by Jeremy Rubin and fellow classmates at MIT for the Node Knockout Hackathon, where the program ultimately won an award for innovation. The creators never made the program fully functional, serving only as a "proof of concept."

In December 2013, the New Jersey Division of Consumer Affairs issued a subpoena to Rubin, requesting he turn over Tidbit's past and current source code, as well as other documents and agreements with any third parties. It also issued 27 formal written questions requesting additional documents and ordering Rubin to turn over information such as the names and identities of all Bitcoin wallet addresses associated with Tidbit, a list of all websites running Tidbit's code, and the name of anybody whose computer mined for Bitcoins through the use of Tidbit.

EFF represents Rubin and Tidbit in opposing the unjustifiably broad subpoena. In court, Fakhoury will argue three points:

- The State of New Jersey's attempts to target out-of-state activity is unconstitutional.

- New Jersey has no jurisdiction over Rubin or Tidbit.

- If the subpoena is upheld, Rubin and Tidbit must receive immunity. Otherwise, the court would be forcing Rubin and Tidbit to testify against themselves in violation of the Fifth Amendment to the U.S. Constitution and New Jersey state law.

"While the state certainly has a right to investigate consumer fraud, threatening out of state college students with subpoenas isn't the way to do it," Fakhoury said. "The students have disbanded their award-winning project. As MIT students and faculty have warned, the fear that any state can issue broad subpoenas to any student anywhere in the country will have a chilling effect on campus technological innovation beyond Tidbit."

What: Motion Hearing in Rubin v. New Jersey

Who: Hanni Fakhoury, EFF Staff Attorney

Date: Monday, Sept. 22

Time: 1:30 p.m. ET

Location: Courtroom of the Honorable Gary Furnari

Essex County Historic Court House, Courtroom 211

470 Martin Luther King Jr. Blvd., Newark, NJ 07102

For the motion: https://www.eff.org/files/2014/02/03/rubin_v._nj_brief.pdf

Contacts:

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) urged the Federal Communications Commission (FCC) today to see through misinformation from Internet service providers (ISPs) and protect the open Internet.

EFF's formal response to the ISPs' claims are part of the FCC's public comment period for its proposed new rules that would allow for so-called "Internet fast lanes" – a dangerous plan that would allow unfair Internet traffic discrimination and undermine net neutrality. The FCC has received over 1.7 million comments on the issue, with over 127,000 delivered through EFF's DearFCC.org comment tool.

"The FCC is going down a dangerous path, risking future Internet expression and innovation, and the big ISPs are encouraging the commission every step of the way," said EFF Intellectual Property Director Corynne McSherry. "Will the FCC respond to the pleas of more than a million Internet users and do its part to protect net neutrality? Or will it open the door to a tiered Internet, with ISPs serving as gatekeepers for their subscribers?"

In comments submitted today, EFF reiterated that the FCC must reclassify broadband as a "common carrier" service, which would allow the commission to enforce rules like the ones that insure fair and equal telephone service. Some ISPs, including cable Internet provider Comcast, have argued against the reclassification, telling the FCC that a recent court decision gives the commission all it needs to protect the open Internet. But that claim is based on a complete misreading of the court's ruling.

"What the court actually said was that the current classification of the Internet would not allow the FCC to ban unreasonable discrimination of network traffic," said EFF Staff Attorney Mitch Stoltz. "The court gave the FCC a roadmap for protecting the open Internet, and it starts with reclassification, not preserving the status quo."

ISPs' comments to the FCC also fought against service-performance transparency, claiming detailed information about network traffic would confuse consumers instead of helping them—essentially arguing that consumers were too uninformed to know what was good for them. Another outrageous claim came from cell phone providers responding to calls from EFF and others to handle mobile Internet traffic without discrimination. The providers argued that there was no current problem in the mobile space, despite obvious examples like AT&T blocking the FaceTime app.

"The Internet is an unprecedented global platform for free expression, commerce, and communications of all kinds. We can't let a few powerful companies throttle it," said EFF Staff Technologist Jeremy Gillula. "The FCC must correct its course and protect our access to this invaluable resource."

For the full comments to the FCC:
https://www.eff.org/document/reply-comments

For more on net neutrality:
https://www.eff.org/issues/net-neutrality

Contacts:

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

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Jeremy Gillula
   Staff Technologist
   Electronic Frontier Foundation
   jeremy@eff.org

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the distinguished winners of the 2014 Pioneer Awards: United Nations Special Rapporteur Frank LaRue, U.S. Rep. Zoe Lofgren, and groundbreaking counter-surveillance artist Trevor Paglen.

The award ceremony will be held the evening of October 2 at the Lodge at the Regency Center in San Francisco. Keynote speakers will be Jacques Servin and Igor Vamos, better known as the Yes Men, who are known for their elaborate parodies and impersonations to fight government and corporate malfeasance

Frank LaRue is the former U.N. Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. From his appointment in 2008 to the end of his term in 2014, LaRue brought technology to the forefront of the fight for free expression around the world, declaring that access to the Internet is a fundamental human right and highlighting the importance of uncensored communication and anonymous speech in increasingly filtered and tracked networks. LaRue also fought the global "book famine" for people with visual and reading disabilities, advocating for an international Treaty of the Blind to reform over-restrictive copyright that hindered the production and distribution of books in accessible formats. Last year, LaRue published a highly influential report on the dangers of widespread state surveillance, arguing that privacy is an essential requirement for true freedom of expression. Before taking his post at the U.N., LaRue spent years working on human rights issues, including bringing genocide cases against the military dictatorship in his native Guatemala in 2000 and 2001.

For nearly 20 years, Rep. Zoe Lofgren has been a crucial voice in Congress on technology, innovation, and free speech—defending the free and open Internet, fighting for privacy and free speech, and blocking dangerous copyright laws while pushing for sensible alternatives. Lofgren rallied congressional opposition to the Stop Online Piracy Act (SOPA), one of the defining moments of Internet activism. Currently, Lofgren is fighting to reform some of the worst legal threats to our digital rights: the Electronic Communications Privacy Act, which regulates our email privacy with outdated standards; the Digital Millennium Copyright Act, which has been used to block phone unlocking, jailbreaking, and our freedom to tinker; and the Computer Fraud and Abuse Act, the law used to unfairly prosecute Aaron Swartz. Lofgren chairs the California Democratic Congressional Delegation, the largest delegation in Congress.

Trevor Paglen is an artist whose work uses methods from science, journalism, and other disciplines in an attempt to "see" the historical moment we live in. Paglen's groundbreaking projects exposing government secrecy have included documenting U.S. government drone flights, using high-end optical systems to photograph top-secret governmental sites, and tracking classified spacecraft in Earth's orbit. In a recent project, Paglen photographed the National Security Agency, the National Reconnaissance Office, and the National Geospatial-Intelligence Agency, releasing the images without restriction for public use. Paglen's visual art has been exhibited at the Metropolitan Museum of Art in New York, the Tate Modern in London, and the San Francisco Museum of Modern Art, among many other places. Paglen is also the author of five books, including Torture Taxi, an early look at the CIA's extraordinary rendition program.

"Each of our Pioneer Award winners has helped the world understand how technology and civil liberties are interwoven into our lives, and each is still working to protect our freedom and fight abuses," EFF Executive Director Shari Steele said. "We are so proud to be able to present them with this year's Pioneer Awards."

Tickets to the Pioneer Awards, which includes access to the general reception and ceremony, are $65 for EFF members and $75 for non-members. Also available are tickets for a special, advance reception featuring some past and present Pioneer Award winners as well as keynoters, the Yes Men. The special advance reception tickets are $250, which includes entry for the ticket holder plus a guest.

Awarded every year since 1992, EFF's Pioneer Awards recognize the leaders who are extending freedom and innovation on the electronic frontier. Previous honorees include Aaron Swartz, Glenn Greenwald and Laura Poitras, Tim Berners-Lee, and the Tor Project, among many others.

To buy tickets to the Pioneer Awards: https://supporters.eff.org/civicrm/event/register?id=87

Contact:

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

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San Francisco - The Electronic Frontier Foundation (EFF) today released a video by acclaimed documentarian Brian Knappenberger (The Internet's Own Boy) that explores how and why an unlikely coalition of advocacy organizations launched an airship over the National Security Agency's Utah data center. The short documentary explains the urgent need to rein in unconstitutional mass surveillance, just as the U.S. Senate has introduced a new version of the USA FREEDOM Act.

The video, Illegal Spying Below, is available for re-use under a Creative Commons Attribution 4.0 license here: https://www.youtube.com/watch?v=EsEkmHRbThk

At dawn on June 27, EFF, Greenpeace, and the Tenth Amendment Center launched an airship above the NSA's $1.2-billion data center in Bluffdale, Utah. The 135-foot-long airship carried a banner bearing a downward arrow and the words, "Illegal Spying Below," to bring attention to the facility as well as StandAgainstSpying.org, a website showing how members of Congress voted on legislation that would restrict mass surveillance.

"While it is only one of several data centers, for many people the Bluffdale facility has become a symbol out-of-control, unconstitutional, dragnet surveillance, as well as a threat to the environment," Knappenberger says. "I thought it was important to document this audacious attempt to raise awareness of this secretive facility and pressure Congress to rein in the NSA."

The action prompted thousands of people to contact their members of Congress about NSA surveillance. More than 30 articles were written about the airship, and those articles were collectively shared more than 51,000 times over social media within 72 hours.

"This video shows how a common threat to the freedom of association drew our three organizations together, despite very different missions," EFF Activism Director Rainey Reitman said. "Now it's time for Congress to build a diverse coalition to pass meaningful reform. We launched an airship, they need to land a bill on the president's desk."

Viewers are encouraged to use StandAgainstSpying.org, a site supported by more than 22 organizations, to review their elected representatives' record on surveillance and to send tweets to members of Congress to support meaningful surveillance reform.

Contact:

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

About Brian Knappenberger: 

Brian Knappenberger is a writer, director and producer who has created award winning investigative documentaries and feature films for PBS FRONTLINE/World, National Geographic, Bloomberg Television and the Discovery Channel. His new film about the life and death of Aaron Swartz, The Internet's Own Boy, debuted at Sundance and is available through iTunes at https://eff.org/r.cyoz. Knappenberger also runs the award winning production company Luminant Media.

San Francisco - The Electronic Frontier Foundation (EFF) today presented a federal court with a detailed explanation of how the NSA taps into the Internet backbone and requested the judge rule that the agency is violating the Fourth Amendment by copying and searching the collected data.

EFF argues there are now enough agreed-upon facts in our lawsuit, Jewel v. NSA, to reach a constitutional conclusion. To shed light on how the mass surveillance violates the Fourth Amendment, EFF crafted a new infographic that details each stage of the surveillance. The graphic is freely available for republication.

"We believe there is enough on the record now for the judge to rule that both the initial mass seizure and the subsequent searching of the content of Internet communications are unconstitutional," EFF Legal Director Cindy Cohn said. "By installing fiber-optic splitters on the Internet backbone, and then searching through tens of millions of Internet communications it collects, the NSA is conducting suspicionless and indiscriminate mass surveillance that is like the abusive 'general warrants' that led the nation's founders to enact the Fourth Amendment."

Jewel v. NSA was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and other AT&T customers. EFF has amassed a mountain of evidence to support the case, including documents provided by former AT&T telecommunications technician Mark Klein showing that the company has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Telecommunications specialist and former FCC technical adviser J. Scott Marcus also has given expert testimony confirming the mass, domestic nature of the collection. Other whistleblowers—including Thomas Drake, Bill Binney and Edward Snowden—have revealed more detail about how this technique works and feeds data into the NSA's massive collection of communications. Over the last year, the government has confirmed that it searches the content of much of what it collects as part of its "upstream" activities without a warrant. Instead, it currently claims the searches are justified under Section 702 of the FISA Amendments Act.

"By sitting on the Internet 'backbone' at key junctures, the government is operating a digital dragnet—a technological surveillance system that makes it impossible for ordinary Americans not suspected of any wrongdoing to engage in a fully private online conversation, to privately read online, or to privately access any online service," Cohn said. "The Constitution was written to ensure that Americans felt secure in their papers, digital or otherwise, and we're asking the judge to rule that the NSA's mass seizures and searches are illegal."

EFF is also currently fighting with the NSA over its failure to preserve evidence, including years of Internet-backbone data it collected, as well as telephone records and Internet metadata. Jewel v. NSA is one of three of EFF's cases aimed at ending NSA spying. The two others are First Unitarian Church of Los Angeles v. NSA and Smith v. NSA.

Note on Graphic: The graphic is available under the Creative Commons Attribution License. Attribute to Electronic Frontier Foundation/Hugh D'Andrade.

For the full brief:
https://www.eff.org/document/plaintiffs-jewel-knutzen-and-waltons-motion-partial-summary-judgment

For the infographic:
https://eff.org/r.4tmr

Contact:

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@eff.org

Coeur d'Alene, Idaho - The Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU) and the American Civil Liberties Union of Idaho have announced they will join Anna Smith's legal team in her challenge of the government's bulk collection of the telephone records of millions of innocent Americans.

Smith, an emergency neonatal nurse and pregnant mother of two, filed her suit against President Obama and several U.S. intelligence agencies shortly after the government confirmed revelations that the National Security Agency (NSA) was conducting bulk collection of telephone records under Section 215 of the Patriot Act. Smith, a customer of Verizon wireless, one of the companies that was ordered to disclose records to the NSA, argued the program violated her First and Fourth Amendment rights by collecting a wealth of detail about her familial, political, professional, religious and intimate associations.

"When I found out that the NSA was collecting records of my phone calls, I was shocked," said Smith, who is also represented by her husband, Peter J Smith IV, and Idaho State Rep. Luke Malek. "I have heard of other governments spying indiscriminately on their own citizens, but I naively thought it did not happen in America. I believe who I call, when I call them, and how long we talk is not something the government should be able to get without a warrant. I sued because I believe the Constitution protects my calls from government searches. I am thrilled that the American Civil Liberties Union and Electronic Frontier Foundation agreed to assist us in this case. What Americans can reasonably expect to remain private is an issue of monumental importance."

When U.S. District Judge Lynn Winmill dismissed Smith's case, he expressed grave concerns about the privacy implications of the NSA's surveillance but said that he believed that a 1979 Supreme Court case about targeted surveillance tied his hands. Smith is now appealing to the Ninth Circuit Court of Appeals.

EFF and the ACLU have each litigated numerous First and Fourth amendment lawsuits, including ongoing cases over this very NSA program. The ACLU is a plaintiff in a case currently pending before the Second Circuit Court of Appeals to be heard in early September. EFF has two cases before the Northern California federal court. Smith v. Obama represents another opportunity to halt this mass surveillance.

"Anna Smith proves that a single citizen has the power to stand up for her rights and challenge the government when it tramples them," EFF Legal Director Cindy Cohn said. "EFF is proud to lend our expertise in pursuing her appeal, which could very well be one of the cases that makes it to the Supreme Court."

The court has granted Smith's motion to expedite the case, with the opening brief due on Sept. 2, 2014.

"The call records program needlessly invades the privacy of millions of people," said ACLU Deputy Legal Director Jameel Jaffer. "Even the President has acknowledged that the NSA does not need to collect information about every phone call in order to track the associations of suspected terrorists. Dragnet surveillance on this scale is both unconstitutional and unnecessary."

Contacts:

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

Steve Smith
   Associate Director for Strategic Communications
   American Civil Liberties Union
   media@aclu.org

Peter J. Smith
   Media Relations Coordinator
   psmith@lukins.com

San Francisco - The Electronic Frontier Foundation (EFF) today filed a Freedom of Information Act (FOIA) lawsuit against the NSA and the Office of the Director of National Intelligence (ODNI) to gain access to documents showing how intelligence agencies choose whether to disclose software security flaws known as "zero days."

A zero day is a previously unknown security vulnerability in software or online services that a researcher has discovered, but the developers have not yet had a chance to patch. A thriving market has emerged for these zero days; in some cases governments—including the United States—will purchase these vulnerabilities, which they can use to gain access to targets' computers.

In April 2014, Bloomberg News published a story alleging that the NSA had secretly exploited the "Heartbleed" bug in the OpenSSL cryptographic library for at least two years before the public learned of the devastating vulnerability. The government strongly denied the report, claiming it had a developed a new "Vulnerability Equities Process" for deciding when to share vulnerabilities with companies and the public. The White House's cybersecurity coordinator further described in a blog post that the government had "established principles to guide agency decision-making" including "a disciplined, rigorous and high-level decision-making process for vulnerability disclosure." But the substance of those principles has not been shared with the public.

EFF filed a FOIA request for records related to these processes on May 6 but has not yet received any documents, despite ODNI agreeing to expedite the request.

"This FOIA suit seeks transparency on one of the least understood elements of the U.S. intelligence community's toolset: security vulnerabilities," EFF Legal Fellow Andrew Crocker said. "These documents are important to the kind of informed debate that the public and the administration agree needs to happen in our country."

Over the last year, U.S. intelligence-gathering techniques have come under great public scrutiny. One controversial element has been how agencies such as the NSA have undermined encryption protocols and used zero days. While an intelligence agency may use a zero day it has discovered or purchased to infiltrate targeted computers or devices, disclosing its existence may result in a patch that will help defend the public against other online adversaries, including identity thieves and foreign governments that may also be aware of the zero day.

"Since these vulnerabilities potentially affect the security of users all over the world, the public has a strong interest in knowing how these agencies are weighing the risks and benefits of using zero days instead of disclosing them to vendors," Global Policy Analyst Eva Galperin said.

For the complaint:
https://www.eff.org/document/eff-v-nsa-odni-complaint

Contacts:

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

Eva Galperin
   Global Policy Analyst
   Electronic Frontier Foundation
   eva@eff.org

San Francisco, CA - A coalition of 22 organizations from across the political spectrum today launched StandAgainstSpying.org, an interactive website that grades members of Congress on what they have done, or often not done, to rein in the NSA.

Led by the Electronic Frontier Foundation (EFF), the Sunlight Foundation and Greenpeace, the coalition aims to inspire constituents to hold their elected officials accountable on mass surveillance reform, as well as give lawmakers the opportunity to improve their positions. Using a report card-style format, the grading criteria included whether the legislator was a sponsor of the USA FREEDOM Act or, in the case of the House of Representatives, voted for the "Amash Amendment" to defund NSA mass surveillance. Legislators had multiple avenues for receiving high marks.

Of the 100 senators and 433 representatives included, 241 members (45 percent) received "A" grades. However, 188 members (35 percent) flunked the scorecard, while another 77 members (14 percent) received question marks for taking no measurable action.

Website visitors can enter their zip codes to look up their congressional members' scores. They then are encouraged to tweet directly at their members of Congress, thanking them for defending privacy or asking them to do more in the fight against mass spying. Additionally, all visitors can sign an open letter to President Barack Obama urging him to end the mass surveillance programs immediately, without waiting for Congress to act.

"We must hold members of Congress accountable by making clear to the public who in Congress is standing up for surveillance reform, who is acting as a roadblock, and who is failing to take a stand," EFF Activism Director Rainey Reitman said. "More Americans than ever now think the NSA has gone too far. The American people—and frankly people all over the world—can't wait any longer for Congress to rein in the NSA."

EFF built StandAgainstSpying.org after analyzing the key NSA reform bills in Congress and weighting the prominent proposals on the degree to which they would end mass data collection. Sunlight Foundation technologists populated the site with data from its repository of Congressional actions.

"Just as the Internet has become an avenue for surveillance, it is also a mechanism for the public to hold the government accountable for its unchecked secrecy," said John Wonderlich, policy director at the nonpartisan Sunlight Foundation. "People care about secrecy and state power and are willing to stand up and demand reform."

More than 18 groups and companies with diverse interests joined Greenpeace, EFF, Tenth Amendment Center (TAC) and Sunlight Foundation as partners in launching StandAgainstSpying.org, including Association of Alternative Newsmedia, Bill of Rights Defense Committee, Council on American-Islamic Relations, Demand Progress, Fight for the Future, FreedomWorks, Free Press Action Fund, Freedom of the Press Foundation, Libertarian Party, Liberty Coalition, Open Media, PEN America, reddit, Restore the Fourth, Taskforce.is, TechFreedom and ThoughtWorks.

The launch of the scorecard also coincided with a joint campaign by Greenpeace, EFF and TAC to fly an airship over the NSA data center in Bluffdale, UT, which carried a sign that read "NSA Illegal Spying Below" with a link to StandAgainstSpying.org.

For information and photos of the airship's flight over the data center earlier today will be available shortly.

Contacts:

Rainey Reitman
   Activism Director
   Electronic Frontier Foundation
   press@eff.org

David Pomerantz
   Greenpeace Electronic Frontier Foundation
   david.pomerantz@greenpeace.org

Andy Stepanian
   Fitzgibbon Media
   andy@fitzgibbonmedia.com
  

San Francisco - The Electronic Frontier Foundation (EFF) has urged a federal court to block a U.S. search warrant ordering Microsoft to turn over a customer's emails held in an overseas server, arguing that the case has dangerous privacy implications for Internet users everywhere.

The case started in December of last year, when a magistrate judge in New York signed a search warrant seeking records and emails from a Microsoft account in connection with a criminal investigation. However, Microsoft determined that the emails the government sought were on a Microsoft server in Dublin, Ireland. Because a U.S. judge has no authority to issue warrants to search and seize property or data abroad, Microsoft refused to turn over the emails and asked the magistrate to quash the warrant. But the magistrate denied Microsoft's request, ruling there was no foreign search because the data would be reviewed by law enforcement agents in the U.S.

Microsoft appealed the decision. In an amicus brief in support of Microsoft, EFF argues the magistrate's rationale ignores the fact that copying the emails is a "seizure" that takes place in Ireland.

"The Fourth Amendment protects from unreasonable search and seizure. You can't ignore the 'seizure' part just because the property is digital and not physical," said EFF Staff Attorney Hanni Fakhoury. "Ignoring this basic point has dangerous implications – it could open the door to unfounded law enforcement access to and collection of data stored around the world."

The government has argued that allowing a U.S. judge to order the collection of data stored abroad is necessary, because international storage would make it easy for U.S. Internet companies to avoid complying with search warrants. But Microsoft asserts that the government's legal theory could hurt U.S. technology companies that are trying to do business internationally. Additionally, EFF argues in its amicus brief that the government's approach hurts Internet users globally, as it would allow the U.S. to obtain electronic records stored abroad without complying with mutual assistance treaty obligations or other nations' own laws.

"Microsoft is doing the right thing by pushing back here. It's great to see a tech giant fighting for its customers," said Fakhoury.

For the full brief in this case:
https://www.eff.org/document/eff-amicus-brief-support-microsoft

Contact:

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

Oakland, CA - A federal judge today ordered an emergency hearing today at 2 p.m. PT after EFF learned that the government is apparently still destroying evidence of NSA spying despite a temporary restraining order (TRO) issued by the court in March.

Yesterday afternoon, EFF filed an emergency motion with U.S. District Judge Jeffrey S. White, explaining that communications with government lawyers over the last week had revealed that the government has continued to destroy evidence relating to the mass interception of Internet communications it is conducting under Section 702 of the FISA Amendments Act. The judge responded less than two hours later, reiterating that his TRO was still in place and continues to prohibit the destruction of evidence collected under Section 702. Late Thursday evening, the government filed papers with the court, claiming that compliance with the preservation order that has been in effect since March "would cause severe operational consequences" for the NSA, "including the possible suspension of the Section 702" program.

"This TRO has been in place since March. Yet we are only hearing these excuses now," said EFF Legal Director Cindy Cohn. "Once again, the government has secretly and unilaterally reinterpreted its obligations about the evidence preservation orders, and determined that it need not comply with a federal court order, and now is asking for a blessing from the court after the fact. We are pleased that Judge White has called this emergency hearing to get to the bottom of this."

The government will appear by phone at the Oakland, California hearing.

WHAT:
Emergency Hearing in Jewel v. NSA

WHEN:
2 p.m.
Friday, June 6

WHERE:
U.S District Court
Northern District of California
Courtroom 5, Second Floor
1301 Clay Street
Oakland, CA

For the full order from Judge White:
https://www.eff.org/document/order-setting-hearing-0

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contact:

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

San Francisco - The Electronic Frontier Foundation (EFF) asked a judge today to schedule an emergency hearing, after learning that the government is apparently still destroying evidence of NSA spying despite a temporary restraining order (TRO) issued by the court in March. In an order issued in response this afternoon, U.S. District Judge Jeffrey S. White instructed the government not to destroy any more materials and file a brief responding to EFF's allegations by 12 p.m PT on Friday.

"In communications with the government this week, EFF was surprised to learn that the government has been continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the FISA Amendments Act even though the court explicitly ordered it to stop in March," said EFF Legal Director Cindy Cohn. "Specifically, the government is destroying content gathered through tapping into the fiberoptic cables of AT&T."

She added: "Once again, the government has apparently secretly and unilaterally reinterpreted its obligations about the evidence preservation orders, and has determined that it need not comply. Today marks a year to the day that Edward Snowden leaked documents confirming the NSA's massive spying, yet the government is still engaging in outlandish claims and gamesmanship – even destroying evidence – to block an adversarial court ruling on whether its mass spying is legal or constitutional."

EFF filed its Jewel v. NSA lawsuit in 2008. In recent weeks, declarations from the government in the Jewel case made it clear that the government has destroyed five years of the content it collected between 2007 and 2012, three years worth of the telephone records it seized between 2006 and 2009, and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended the Internet records seizures. In an emergency hearing last March over that evidence destruction, Judge White issued the current TRO, ordering the government to stop any further destruction of records or content until the matter could be sorted out.

"There can be no dispute that the government was aware of the broad scope of this TRO, and in his order this afternoon, Judge White confirmed that it reached materials gathered under Section 702," Cohn said. "We're asking Judge White to enforce the order and impose on the government whatever further measures are necessary to ensure that no further destruction of evidence occurs. It will be very interesting to see what the government says in its defense in its briefing tomorrow."

For EFF's full emergency application:
https://www.eff.org/document/plaintiffs-emergency-application-enforce-courts-tro

For the judge's order:
https://www.eff.org/document/order-re-evidence-preservation-0

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contacts:

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@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. 

San Francisco - The Electronic Frontier Foundation (EFF) told a federal court today that there was no doubt that the government has destroyed years of evidence of NSA spying – the government itself has admitted to it in recent court filings. In a brief filed today in response to this illegal destruction, EFF is asking that the court make an "adverse inference" that the destroyed evidence would show that plaintiffs communications and records were in fact swept up in the mass NSA spying programs.

EFF filed its first lawsuit challenging illegal government spying in 2006. The current dispute arises from Jewel v. NSA, EFF's 2008 case that challenges the government's mass seizure of three kinds of information: Internet and telephone content, telephone records, and Internet records, all going back to 2001. EFF's brief notes that the government's own declarations make clear that the government has destroyed five years of the content it collected between 2007 and 2012, three years worth of the telephone records it seized between 2006 and 2009, and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended the Internet records seizures.

"The court has issued a number of preservation orders over the years, but the government decided – without consent from the judge or even informing EFF – that those orders simply don't apply," said EFF Legal Director Cindy Cohn. "Regular civil litigants would face severe sanctions if they so obviously destroyed relevant evidence. But we are asking for a modest remedy: a ruling that we can assume the destroyed records would show that our plaintiffs were in fact surveilled by the government."

The government's reinterpretation of EFF's lawsuits and the preservation orders came to light in March, when government lawyers revealed secret court filings from 2007. In these filings, the government unilaterally claimed that EFF's lawsuits only concerned the original Bush-era spying program, which was done purely on claims of executive power. Without court approval, much less telling EFF, the government then decided that it did not need even to preserve evidence of the same mass spying done pursuant to FISA court orders, which were obtained in 2004 for Internet records, 2006 for telephone records, and 2007 for mass content collection from fiber optic cables.

"EFF and our clients have always had the same simple claim: the government's mass, warrantless surveillance violates the rights of all Americans and must be stopped. The surveillance was warrantless under the executive's authority and it is still warrantless under the FISA court, as those orders are plainly not warrants." said Cohn. "The government's attempt to limit our claims based upon their secret, shifting rationales is nothing short of outrageous, and their clandestine decision to destroy evidence under this flimsy argument is rightly sanctionable. Nevertheless, we are simply asking the court to ensure that we are not harmed by the government's now-admitted destruction of this evidence."

For the full brief on the government's non-compliance:
https://www.eff.org/document/plaintiffs-brief-re-governments-non-compliance-courts-evidence-preservation-orders

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contacts:

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy@eff.org

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

Washington, D.C. - Striking a crushing blow against a legal linchpin of the copyright troll business model, a federal appeals court held today that copyright holders may not abuse the legal process to obtain the identities of thousands of Internet users.

"This decision is a crucial victory," said Electronic Frontier Foundation (EFF) Intellectual Property Director Corynne McSherry. "We are thrilled that a higher court has recognized that it is unfair to sue thousands of people at once, in a court far from home, based on nothing more than an allegation that they joined a BitTorrent swarm."

The plaintiff in this case, AF Holdings, sought the identities of more than 1,000 Internet users that it claims are linked to the illegal downloading of a copyrighted pornographic film. Over the protest of the Internet service providers that received subpoenas for those identities, a lower court approved the disclosure of the names. EFF, joined by the American Civil Liberties Union, the ACLU of the Nation's Capital, Public Citizen, and Public Knowledge, urged the U.S. Court of Appeals for the District of Columbia Circuit to reverse that ruling and help keep the legal process fair and balanced by requiring AF Holdings to show it has a good faith basis for going after these defendants.

This same coalition has fought for years in courts around the country to explain how the trolls were abusing the legal process to extort settlements from unsuspecting John Does. While several district courts have agreed, this is the first time a federal appeals court has weighed in.

The case is one of hundreds around the country that follow the same pattern. A copyright troll looks for IP addresses that may have been used to download films (often adult films) via BitTorrent, files a single lawsuit against thousands of "John Doe" defendants based on those IP addresses, then seeks to subpoena the ISPs for the contact information of the account holders associated with those IP addresses. The troll then uses that information to contact the account holders and threatens expensive litigation if they do not settle promptly. Faced with the prospect of hiring an attorney and litigating the issue, often in a distant court, most subscribers—including those who may have done nothing wrong—will choose to settle rather than fight.

"Once a troll gets the names it's looking for, then it already has what it needs to put its shakedown scheme in motion," EFF Staff Attorney Mitch Stoltz said. "For the defendants, it will come down to risking being named in a lawsuit over a pornographic movie, or settling for less than the cost of hiring an attorney. As a matter of law and basic fairness, a copyright plaintiff needs to show that its case is on solid ground before putting hundreds of Internet users into that kind of bind."

AF Holdings is linked to Prenda Law, a firm that is facing allegations that it used stolen identities and fictitious signatures on key legal documents and made other false statements to the courts.

For the text of the opinion:
https://www.eff.org/document/appeals-court-opinion

Contacts:

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

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

San Francisco - Technology companies are privy to our most sensitive information: our conversations, photos, location data, and more. But which companies fight the hardest to protect your privacy from government data requests? Today, the Electronic Frontier Foundation (EFF) releases its fourth annual "Who Has Your Back" report, with comprehensive information on 26 companies' commitments to fighting unfair demands for customer data. The report examines the privacy policies, terms of service, public statements, and courtroom track records of major technology companies, including Internet service providers, email providers, social networking sites, and mobile services.

"The sunlight brought about by a year's worth of Snowden leaks appears to have prompted dozens of companies to improve their policies when it comes to giving user data to the government," said EFF Activism Director Rainey Reitman. "Our report charts objectively verifiable categories of how tech companies react when the government seeks user data, so users can make informed decisions about which companies they should trust with their information."

EFF's report awards up to six gold stars for best practices in categories like "require a warrant for content" and "publish transparency reports." Last year, just two companies we surveyed earned a full six stars – Sonic, a California ISP, and Twitter.* This year, Apple, CREDO Mobile, Dropbox, Facebook, Google, Microsoft, and Yahoo all joined Sonic and Yahoo in receiving six full stars, and several others – LinkedIn, Pinterest, SpiderOak, Tumblr, Wickr and Wordpress – only missed getting all six stars because they did not have to bring public court battles on behalf of their users.

This year, the majority of the companies surveyed have made a formal commitment to inform users when their data was sought, a welcome safeguard that gives users the information they need to fight on their own. This shows that the technology industry is adopting a best practice pioneered by Twitter, which in 2010 fought for the right to tell its users about a government order for their information as part of the WikiLeaks investigation.

Additionally, 20 of the companies EFF reviewed published transparency reports detailing government requests for user data, which is a striking increase from last year, when only seven companies in EFF's report published them. This is now a new standard in the tech industry: corporations are actively and voluntarily working to shed light on the government attempts to access user data. However, it's not all good news in this year's report. Photo-messaging application Snapchat received only one star – particularly troubling due to the sensitive nature of photos and the company's young user base.

"Snapchat joins AT&T and Comcast in failing to require a warrant for government access to the content of communications. That means the government can obtain extraordinarily sensitive information about your activities and communications without convincing a judge that there is probable cause to collect it," said EFF Staff Attorney Nate Cardozo. "We urge these companies to change course and give their users this simple and needed protection from government overreach."

As part of this year's report, EFF collaborated with data analysis company Silk to help explore trends in government access requests. Silk's analysis provides a simple mechanism for reporters and the general public to explore corporate transparency reports, shedding light on which companies receive the most data requests, which companies push back against government data requests, and which countries are most aggressive in demanding user data.

For the full report "Who Has Your Back":
https://www.eff.org/who-has-your-back-government-data-requests-2014

For the Silk analysis:
https://transparency-reports.silk.co/

Contact:

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

Correction: An earlier version of this report accidentally omitted Twitter from the list of companies that received six stars in last year's report.