Press Releases
New Brief Urges Justices to Protect Citizens from Warrantless Analysis of Genetic Material
San Francisco - People have a Fourth Amendment right to privacy when it comes to their genetic material, the Electronic Frontier Foundation (EFF) argues in an amicus brief filed this week with the Supreme Court of the United States.
EFF is asking the Supreme Court to hear arguments in Raynor v. State of Maryland, a case that examines whether police should be allowed to collect and analyze "inadvertently shed" DNA without a warrant or consent, such as swabbing cells from a drinking glass or a chair. EFF argues that genetic material contains a vast amount of personal information that should receive the full protection of the Constitution against unreasonable searches and seizures.
"As human beings, we shed hundreds of thousands of skin and hair cells daily, with each cell containing information about who we are, where we come from, and who we will be," EFF Senior Staff Attorney Jennifer Lynch said. "The court must recognize that allowing police the limitless ability to collect and search genetic material will usher in a future where DNA may be collected from any person at any time, entered into and checked against DNA databases, and used to conduct pervasive surveillance."
Glenn Raynor's genetic material was collected and tested without his knowledge or consent after he agreed to an interview at a police station as part of a criminal investigation. The police didn't have probable cause to arrest Raynor, and he refused to provide a DNA sample. After he left the station, police swabbed the armrest of the chair where he had been sitting to collect his skin cells without his knowledge. The police then extracted a DNA profile from the cells and used it to connect him to the crime. The Maryland Court of Appeals ruled that this collection was lawful, and Raynor petitioned the Supreme Court for review. EFF's brief supports Raynor's petition.
The sophistication and speed of DNA analysis technology is advancing exponentially as the costs of the technology drop. These advances, EFF argues, raise significant questions for privacy and civil liberties. DNA can reveal sensitive personal health information and can allow police to identify a person's relatives, turning family members into inadvertent "genetic informants" on each other. Some researchers have also postulated that DNA can determine race, sexual orientation, intelligence, and even political predispositions.
"Law enforcement should not be able to amass giant databases of genetic material they find lying around," EFF Senior Staff Attorney Hanni Fakhoury said. "The Supreme Court should review this case and consider it within the context of emerging technologies that could significantly affect the privacy rights of every American."
For EFF's amicus brief:
https://www.eff.org/document/amicus-brief-27
Contact:
Jennifer Lynch
Senior Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
EFF Asks Court to Invalidate Junk Patent on 'Vote-for-Your-Favorite' Online Competitions
San Francisco - The Electronic Frontier Foundation (EFF), together with Durie Tangri LLP, is defending a photo hobbyist against an outrageous patent suit from a company that claims to hold the rights to online competitions on social networks where users vote for the winner.
“It’s part of our job to identify stupid patents and to try to get rid of them, and this is one of the silliest I have ever seen,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “Our client has been running ‘vote-for-your-favorite-photo’ polls for years, just for fun and the love of photography. The idea that you could patent this abstract idea—and then demand a settlement to go away—goes against both patent law and common sense.”
EFF’s client runs Bytephoto.com, which has hosted user-submitted photos and run competitions for the best since 2003. In 2007, a company called Garfum.com applied for a patent on the “Method of Sharing Multi-Media Content Among Users in a Global Computer Network.” The patent, U.S. Pat. No. 8,209,618, takes the well-known concept of a competition by popular vote and applies it to the modern context of generic computer networks—despite the fact that courts have ruled that this kind of abstract idea using generic computer technology cannot be patented.
In September of last year, Garfum used this patent to accuse EFF’s client of infringement, and filed suit. In the motion to dismiss the complaint, EFF argues that the patent should be declared invalid.
“Patents like this improperly interfere with the ability of people to use the Internet to do things they’ve been doing in the analog world for generations. Here, this patent is interfering with the age-old tradition of like-minded enthusiasts getting together to celebrate their hobbies,” said EFF Staff Attorney Vera Ranieri. “Demanding a payout for infringement on an obviously bad patent like this one isn’t just unfair. It acts as a chilling effect against those who would want to use the Internet to expand their community.”
“Patent bullies sue with weak patents and pick on defendants that can’t afford to prove their innocence,” said Nazer. “We’re glad we can help our client fight back against Garfum’s abuse.”
Joe Gratz of the law firm Durie Tangri LLP and Frank Corrado of Barry, Corrado & Grassi, PC are co-counsel with EFF.
For the full motion to dismiss:
https://www.eff.org/document/motion-dismiss-3
For more on this case:
https://www.eff.org/cases/garfum-v-reflections-ruth
Contacts:
Daniel Nazer
Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
daniel@eff.org
Vera Ranieri
Staff Attorney
Electronic Frontier Foundation
vera@eff.org
EFF’s Clients’ Identities Must Remain Secret, But Still Speak Out About Unconstitutional Gag Orders
San Francisco - Two companies who must remain anonymous about their fight against secret government demands for information known as national security letters (NSLs) are backing Twitter's lawsuit over its rights to publish information about NSLs it may have received. The companies—a telecom and an Internet company—are represented by the Electronic Frontier Foundation (EFF).
Twitter filed its suit in October, saying users deserved to know certain basic facts about NSLs that the government did or did not serve on the social media company. NSLs—issued by the federal government but not approved by a judge—almost always contain a gag order barring the companies from notifying their customers or the public that any demands have been made.
The companies represented by EFF also want to go public with some details of their fights against NSLs, including their corporate identities and what they have done to protect their customers from unreasonable collection of information. In an amicus brief filed today, they argue that the gag orders are an unconstitutional prior restraint on free speech and a serious infringement of their First Amendment rights. However, the government continues to maintain that even identifying EFF's clients as having received an NSL might endanger national security.
"The Supreme Court as well as courts across the land have recognized that a prior restraint—preventing speech in the first instance instead of imposing a penalty after the speech—is a serious and dangerous step," said EFF Legal Fellow Andrew Crocker. "Yet with NSLs, we have prior restraints imposed at the government's whim, without any judicial oversight or review. Our clients want to talk about their experience with these NSLs, but the government is unconstitutionally shielding itself from any criticism or critique of their procedures."
In 2013, a federal district court judge in San Francisco agreed with EFF and its clients that the NSL provisions were unconstitutional, and barred any future NSLs and accompanying gag orders. That ruling was stayed pending appeal, however, and the district court has subsequently enforced additional NSLs while EFF is arguing the case in the United States Court of Appeals for the Ninth Circuit.
"The district court in our case against national security letters was right—the First Amendment forbids the FBI from gagging service providers from openly discussing such invasive, secretive, and unaccountable activities," said EFF Deputy General Counsel Kurt Opsahl. "On behalf of our clients, we are asking this court to reach the same conclusion, and allow the public to get information they need about law enforcement activities."
For the full brief in Twitter v. Holder:
https://www.eff.org/document/amicus-brief-26
For more on NSLs:
https://www.eff.org/issues/national-security-letters
Contacts:
Kurt Opsahl
Deputy General Counsel
Electronic Frontier Foundation
kurt@eff.org
Andrew Crocker
Legal Fellow
Electronic Frontier Foundation
andrew@eff.org
Justice Department Must Provide Records of Aircraft-mounted Cell Tower Simulators
San Francisco - The Electronic Frontier Foundation (EFF) today filed a Freedom of Information Act (FOIA) lawsuit to shine light on the U.S. Marshals Service's (USMS) use of small aircraft mounted with controversial cell-phone tracking systems.
The Wall Street Journal revealed last year that the Marshals have been flying small, fixed-wing Cessna planes mounted with IMSI catchers—devices that emulate cell phone towers and are able to capture the locational data of tens of thousands of cell phones during a single flight. The planes—in the air since 2007—reportedly were based out of five metropolitan airports and shared by multiple agencies within the U.S. Department of Justice, even as sources within the agency questioned the legality of the program.
In the press, IMSI catchers are also known as "stingrays," a name taken from the "Stingray II" device manufactured by Harris Corporation, or "dirtboxes," a nickname for Boeing subsidiary Digital Receiver Technology's "DRT" devices. Across the country, the Justice Department has intervened in local public records battles to prevent the release of information about these technologies, employing tactics such as signing nondisclosure agreements with state and local law enforcement agencies, seizing records held by those agencies, and withholding key pieces of information about the technology from judges and criminal defendants.
A week after the Wall Street Journal story kicked off a media firestorm, EFF filed a comprehensive FOIA request with Justice Department and FBI over the USMS program, seeking a wide variety of records, including policies, procedures, training materials, communications about the legality of the program, and documentation of each use of the spy planes. As of this filing, the Justice Department has produced no records in response to the request or offered a timeline for release of the documents.
"These devices pose obvious privacy concerns, but the government has been opaque about its use of stingrays,” EFF Legal Fellow Andrew Crocker said. “It's time to do away with the secrecy."
For more information and documents related to the suit, visit:
https://www.eff.org/cases/us-marshals-airborne-imsi-catchers
Contacts:
Andrew Crocker
Legal Fellow
Electronic Frontier Foundation
andrew@eff.org
Jennifer Lynch
Senior Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
Copyright Office to Consider EFF’s Exemption Requests under Section 1201 of the Digital Millennium Copyright Act
San Francisco - The Electronic Frontier Foundation (EFF) filed petitions with the U.S. Copyright Office seeking to keep users who remix DVD content or jailbreak their devices from losing their legal safe harbors and to establish new rights for those who need to circumvent "access control" or "digital rights management" (DRM) technologies for activities such as conducting security research, repairing cars, and resuscitating old video games. The petitions were submitted as part of the complex, triennial rulemaking process that determines exemptions from Section 1201 of the Digital Millennium Copyright Act (DMCA).
With the passage of the DMCA in 1998, Congress created "anti-circumvention" measures, ostensibly designed to prevent people from undermining DRM for purposes of copyright infringement. Recognizing that the law could impede lawful and important uses of copyrighted works, Congress included a provision in which the Copyright Office and Librarian of Congress are tasked with deciding which activities should and should not be exempted every three years through a complicated legal process.
The rulemaking process allows organizations like EFF to fight for the rights that digital businesses and consumers should already have. Even when petitions are successful, groups such as EFF still need to fight for each exemption to be reinstated each cycle.
In the 2015 petitions, EFF focuses on these uses:
- Conducting security and safety research and performing repairs and customization on vehicles, where access to onboard computers is typically restricted (https://eff.org/r.knqu and https://eff.org/r.jb4u)
- Creating fair use remixes of videos from locked sources, including DVDs and Blu-ray discs, as well as from online streaming sites (https://eff.org/r.bytr)
- Jailbreaking phones and tablets to run operating systems and applications not specifically authorized by the manufacturer (https://eff.org/r.7jpk and https://eff.org/r.tydf)
- Modifying older video games that require a centralized authentication server, after that server has been taken offline (https://eff.org/r.7vmq)
"The DMCA shouldn't keep vehicle owners from looking under the hood," said Staff Attorney Kit Walsh, lead drafter of the petitions relating to vehicles. "We all benefit when independent repair shops have the knowledge they need to compete, when experts are able to check for safety issues, and when enthusiasts can come up with car mods and share their knowledge with the world."
This rulemaking is the fifth held by the Copyright Office, and the fourth time EFF has fought for exemptions. In 2006, EFF did not participate and instead focused on revealing how ineffective and burdensome the process is for consumers, innovators, repairers, and creators.
"Section 1201 of the DMCA has essentially given the Librarian of Congress control over what we can and can't do with our own electronic devices," EFF Staff Attorney Mitch Stoltz, lead drafter of the jailbreaking petitions. "The DMCA was supposed to protect against copyright infringement, but the law, including the labyrinthine exemption process, chills all kinds of lawful activities completely unrelated to infringement."
Opponents to the exemptions have 45 days to file responses, after which EFF will have another 30 days to provide counter-replies. After that, the Copyright Office is expected to issue its recommendations in the fall, with the Librarian of Congress making final decisions.
In January, EFF separately launched the Apollo 1201 Project, in which author and digital-rights champion Cory Doctorow will work with EFF to repeal laws protecting DRM, assist EFF with DRM-related litigation, and partner with industry to develop viable, legal alternatives to digital restrictions.
EFF's remix petition was drafted and co-submitted with the Organization for Transformative Works. EFF’s remaining petitions received invaluable assistance from the NYU Technology Law & Policy Clinic, attorney Marcia Hofmann, and former EFF intern Kendra Albert.
For more information on the 2015 rulemaking, visit:
https://www.eff.org/cases/2015-dmca-rulemaking
Contact:
Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org
Citizens Have a Right to Challenge Laws That Violate the Fourth Amendment
San Francisco - The Electronic Frontier Foundation (EFF) today filed an amicus brief with the U.S. Supreme Court in a challenge brought by hotel owners against a Los Angeles city ordinance that allows police to access guest registers without consent, warrant, or other legal process. Supporting the hotel owners, EFF argues that people must have the right to challenge surveillance laws like these on Fourth Amendment grounds, even before police have used the law to conduct a suspicionless search.
"In an era of pervasive surveillance, the ability to challenge overbroad laws that invade privacy is more important than ever," Senior Staff Attorney and Adams Chair for Internet Rights Lee Tien said.
Central to City of Los Angeles v. Patel is a city ordinance requiring hotel operators to retain certain guest registry information, which they must make available to police officers on demand. Hotel operators aren't allowed to challenge requests for guest information in court in advance and can be punished with a jail or fine if they refuse to comply.
The U.S. Court of Appeals for the Ninth Circuit found that the ordinance violates the Fourth Amendment: individuals subject to an "administrative search"—a kind of warrantless, suspicionless search that may be performed for reasons unrelated to criminal investigations—must be allowed to object in court before they can be punished for resisting the requests. However, a dissenting opinion argued that not only does the Los Angeles ordinance satisfy the Fourth Amendment, but the Constitution does not allow the hotel owners to challenge the law until the government actually uses the law to conduct a warrantless search against them.
EFF's brief addresses the latter question, arguing that the Fourth Amendment must allow "facial" challenges to laws that authorize warrantless searches.
"There are many reasons why this is the right rule," EFF Legal Fellow Andrew Crocker said. "Facial challenges preserve individuals' constitutional rights and they guard against laws that would chill individuals' protected Fourth Amendment activity."
The Supreme Court will hear oral arguments in Patel on March 3, 2015. A recording of the argument should be available shortly after that.
For EFF's brief: https://www.eff.org/document/eff-amicus-los-angeles-v-patel
For more information on the case: https://www.eff.org/cases/city-los-angeles-v-patel
Contact:
Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org
Federal Law Blocks Extraordinary and Burdensome Subpoena
San Francisco - A high-profile battle over whether Google must respond to an unusual and dangerous subpoena raises fundamental concerns about federal free speech law and the protections it affords hosts of online content, the Electronic Frontier Foundation (EFF) argued in an amicus brief filed today.
Attorney General Jim Hood of Mississippi issued the 79-page subpoena in October, seeking information about Google's policies and practices with respect to content it hosts, Internet searches, and more. The invasive request appeared to be based primarily on allegedly unlawful activities of third parties who use Google's services. Then in December, journalists reported that documents disclosed in the Sony hack outlined a Hollywood plot against Google, including plans to pressure Hood into aggressively investigating the search engine giant. In the face of these developments, and the Attorney General's unwillingness to narrow the request, Google sought protection from a Mississippi federal court.
"Despite the dramatic storyline, this all comes down to well-established law protecting hosts of Internet content from liability for much of what their users say and do on their platforms: Section 230 of the Communications Decency Act," said EFF Intellectual Property Director Corynne McSherry. "If CDA 230 was disregarded, and online service providers were required to respond in full to subpoenas like this one, they would inevitably face extraordinary legal costs. That would be enough for most businesses to get out of the interactive content business all together, as everything from comments on news stories to sharing of home videos could be a recipe for expensive litigation."
In the amicus brief filed today, EFF argues that Congress' express intent was to encourage the development of new communications technologies by holding online speakers responsible for what they say—instead of the soapboxes where they say it. It's a principle that has allowed the Internet and the myriad online communities it contains to thrive.
"CDA 230 is perhaps the most valuable law we have for protecting innovation and online speech," said EFF Frank Stanton Legal Fellow Jamie Williams. "The Mississippi subpoena is an obvious violation of federal statute, and the court should grant Google the protection that Congress intended."
The Center for Democracy and Technology, the Open Technology Institute, Public Knowledge, and R Street Institute joined EFF in the brief.
For the full amicus brief in Google v. Hood:
https://www.eff.org/document/amicus-brief-25
For more on CDA 230:
https://www.eff.org/issues/cda230
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Jamie Williams
Frank Stanton Legal Fellow
Electronic Frontier Foundation
jamie@eff.org
Department of Justice to Release Analysis of Law Enforcement and Intelligence Agency Access to Census Records
San Francisco - The Electronic Frontier Foundation (EFF) has won its four-year Freedom of Information Act lawsuit over secret legal interpretations of a controversial section of the Patriot Act, including legal analysis of law enforcement and intelligence agency access to census records.
The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215.
"The public trusts that information disclosed for the census won't wind up in the hands of law enforcement or intelligence agencies," Staff Attorney Mark Rumold said. "The public has a right to know what the Office of Legal Counsel's conclusions were on this topic, and we're happy to have vindicated that important right."
In October 2011—the 10th anniversary of the signing of USA Patriot Act—EFF sued the Justice Department to gain access to all "secret interpretations" of Section 215. At earlier stages in the litigation, the Justice Department had refused to publicly disclose even the number of documents that were at issue in the case, claiming the information was classified.
In June 2013, the lawsuit took a dramatic turn after The Guardian published an order from the Foreign Intelligence Surveillance Court authorizing the bulk collection of call records data of Verizon customers. That disclosure helped EFF secure the release of hundreds of pages of legal opinions, including multiple opinions of the Foreign Intelligence Surveillance Court excoriating the NSA for disregarding the court's orders.
However, the Justice Department continued to fight for secrecy for the legal opinion over access to census data under Section 215. Last August, a federal district court judge ordered the government to disclose the OLC opinion.
"The Justice Department has made a wise decision in dismissing the appeal," Rumold said. "We filed this suit nearly four years ago to inform the public about the way the government was using Section 215. We're well overdue to have a fully informed, public debate about this provision of law, and hopefully the disclosure of this opinion will help move the public debate forward."
Although the motion for dismissal was filed today, the government has not provided EFF with the opinion. After receiving the document, EFF will also make it available through its website.
For more information on the case visit: https://www.eff.org/foia/section-215-usa-patriot-act
Contact:
Mark Rumold
Staff Attorney
Electronic Frontier Foundation
mark@eff.org
Senior Staff Attorney Lee Tien to Be New Adams Chair for Internet Rights
San Francisco - The Electronic Frontier Foundation (EFF) has received a $3 million dollar grant from the Adams Charitable Foundation to fund the new Adams Chair for Internet Rights. The donation is being held in an endowment to permanently fund a position on EFF's legal team.
EFF Senior Staff Attorney Lee Tien has been selected to be the first Adams Chair. Since joining EFF nearly 15 years ago, Tien has fought to preserve our freedom to speak, read, associate, and innovate without fear of surveillance, and for the right to develop and use technology that enhances digital civil liberties. Tien has been a key member of EFF's legal team challenging the NSA's massive expansion into domestic spying, including Hepting v. AT&T—the first major lawsuit about illegal collection of phone records data from millions of ordinary Americans, originally filed in 2006.
"EFF is grateful for the support of the Adams Charitable Foundation," said EFF Executive Director Shari Steele. "The Adams Chair for Internet Rights will provide support for EFF's legal work for years to come."
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Longtime Digital Rights Champion to Liberate Users from Digital Locks that Restrict Our Tech
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
First Public Court Challenge to “Upstream” Internet Spying
Oakland - The Electronic Frontier Foundation (EFF) will argue on Friday before a federal court that the National Security Agency (NSA) is violating the Fourth Amendment by copying and searching data that it collects by tapping into the Internet backbone. The hearing on a motion for partial summary judgment in Jewel v. NSA will be at 9 am on Dec. 19 before Judge Jeffrey White at the federal courthouse in Oakland.
Jewel 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 technician Mark Klein, which show that the company has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Other whistleblowers—including Thomas Drake, Bill Binney and Edward Snowden—have revealed more detail about how this technique feeds data into the NSA's massive databases of communications. Since June 2013, the government has confirmed that it searches much of the content it collects as part of its "upstream" collection without a warrant. The government claims the content searches are justified under Section 702 of the FISA Amendments Act and do not violate the Fourth Amendment.
Under the government's legal theory, it can copy virtually all Internet communications and then search them from top to bottom for specific "identifiers"—all without a warrant or individualized suspicion—as long as it does so quickly using only automated processes.
EFF Special Counsel Richard Wiebe will argue before the court that the Fourth Amendment definitively bars this type of dragnet. As EFF presented in its motion, enough information now exists on the record for the court to rule that the government's technique represents an unconstitutional search and seizure.
What: Motion for Partial Summary Judgment
Who: Richard Wiebe, EFF Special Counsel
Date: Friday, Dec. 19, 2014
Time: 9:00 am
Where: Oakland Federal Courthouse
Courtroom 5, 2nd Floor
1301 Clay St.
Oakland, CA
Wiebe and EFF staff attorneys will be available for comment immediately following the hearing.
For more on Jewel v. NSA: https://www.eff.org/cases/jewel
Contact:
Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org
Battle to Stop Patent Troll Reaches Oral Argument
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
Groups Demand That Negotiators Release Text of Secret Trade Deal
Washington, D.C. - The Electronic Frontier Foundation (EFF) has joined dozens of civil society groups from around the world in calling for the release of the secret text of the Trans-Pacific Partnership (TPP)—a massive proposed trade agreement that could quash digital rights for Internet users everywhere in the name of intellectual property protection.
A representative from OpenMedia International is presenting a letter from the coalition to several TPP delegates on Thursday and Friday at the TPP negotiations in Washington, D.C. The letter demands open debate and oversight of the trade deal, which threatens to extend restrictive intellectual property laws across the globe and rewrite international rules on its enforcement.
"The TPP has been under negotiation for five years, but the only real information we have about it has been through leaks," said EFF Global Policy Analyst Maira Sutton. "Those leaks show extremely troubling provisions, including expanding laws that hurt fair use and free speech along with a number of privacy-threatening enforcement proposals. We've recently seen the European Union take bold new steps to enable real public participation in its trade agreement negotiations with the United States, and it's time for TPP ministers to follow their lead, stop the secrecy, and release official drafts of the TPP text."
The most recent leak of the TPP confirmed that draft provisions on anti-circumvention could restrict tinkerers and makers from modifying legally purchased electronic devices, and that language on service-provider liability could encourage companies to scour all customers' communications just to track down any potential copyright infringement. The leak also revealed new, dangerously vague text on the misuse of trade secrets, which could be used to enact harsh criminal punishments against anyone who reveals or even accesses information through a "computer system" that is considered "confidential." This language could have alarming consequences if nations are obligated to enact new laws that could be used to crack down on journalists and whistle blowers.
"Twelve countries are involved in the TPP negotiations, but because of the interconnected nature of global communications, this agreement stands to hurt people around the world," EFF Senior Global Policy Analyst Jeremy Malcolm said. "We need transparency and real public debate now."
For the full letter to TPP negotiators:
https://www.eff.org/document/tpp-transparency-letter-dec-2014
For more on the TPP:
https://www.eff.org/issues/tpp
Contact:
Maria Sutton
Global Policy Analyst
Electronic Frontier Foundation
maira@eff.org
EFF, ACLU Support Smith in Fighting Mass Surveillance Before Ninth Circuit
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 & AnnisAnna 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
Faulty Decision from Ninth Circuit Panel Endangers Free Speech, Historical Record
San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of technology and free speech organizations are asking the United States Court of Appeals for the Ninth Circuit to fix a disastrously wrongheaded copyright ruling that required an online service provider to take offline—and keep offline—a controversial video that has been the center of a global debate.
This case, Garcia v. Google, centers on "The Innocence of Muslims," a short video on YouTube that sparked protests worldwide in the fall of 2012 with its anti-Islamic content. The video was even linked for a time to the attack on an American diplomatic compound in Benghazi, Libya, although that was later refuted.
"The Innocence of Muslims" includes a five-second performance from an actress named Cindy Lee Garcia, who says she was tricked into appearing in the film. Garcia sued Google under copyright law, insisting she had a copyright interest in her performance and demanding that Google take the video off YouTube and all other platforms. A district court refused to order the removal, noting that Garcia was not likely to succeed with her claim. A three-judge panel from the Ninth Circuit agreed that the claim was "debatable," but still ordered Google to remove all copies of "Innocence of Muslims" until the case was resolved.
"Based on an absurd copyright claim, the Ninth Circuit issued a order requiring an online platform to edit the historical record," said EFF Intellectual Property Director Corynne McSherry. "The ruling may have been well-intentioned, but it was both bad law and bad policy and that will have dangerous consequences for future creators."
The ruling shocked many in the legal and creative communities, and Google appealed the panel's ruling to the full Ninth Circuit. In an amicus brief filed in that appeal today, EFF argues that the panel's order violates basic legal procedure, ignores the public's free speech rights, and undermines core copyright principles.
"Ms. Garcia understandably wants to distance herself from this film. She was hoodwinked, and she has legal options to hold the producer of this film to account. However, copyright infringement is not one of those options," said EFF Staff Attorney Vera Ranieri. "If allowed to prevail, this case will prompt abuse of the copyright system and chill protected speech."
The American Civil Liberties Union, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, the Center for Democracy and Technology, New Media Rights, and Public Knowledge joined EFF in this brief.
For the full amicus brief in Garcia v. Google:
https://www.eff.org/document/amicus-brief-24
For more on this case:
https://www.eff.org/cases/garcia-v-google-inc
Contact:
Vera Ranieri
Staff Attorney
Electronic Frontier Foundation
vera@eff.org
Non-Profit to Offer One-Click Process to Implement Secure Web Browsing
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
ACLU of Northern California, EFF Prevail in Appeal Over Internet Restrictions for Registered Sex Offenders
San Francisco - The Ninth Circuit Court of Appeals ruled today that Proposition 35, a 2012 California ballot initiative that would have restricted the rights of registered sex offenders to communicate on the Internet, is likely unconstitutional. The opinion affirms an earlier district court ruling in Doe v. Harris, a lawsuit filed by the American Civil Liberties Union (ACLU) of Northern California and the Electronic Frontier Foundation (EFF) in 2012.
Proposition 35, also known as the Californians Against Sexual Exploitation Act (CASE Act), requires anyone who is a registered sex offender—even people with decades-old, low-level offenses whose offenses were not related to the Internet—to turn over a list of all their Internet user names and online service providers to law enforcement. Under the law, more than 73,000 Californians would have been forced to provide this information to the government, and report any new account or screen name within 24 hours of setting it up, even if the new screen name is their own real name. Violations would have potentially resulted in years in prison.
"The Ninth Circuit has agreed that the onerous online speech restrictions required by Prop. 35 violate the First Amendment," said Linda Lye, senior staff attorney at the ACLU of Northern California. "The portions of Prop. 35 that unconstitutionally limit what people say online won't help us end human trafficking. Anonymity is key to protecting speech by unpopular or controversial groups and allowing robust political debate."
The ACLU of Northern California and EFF filed a lawsuit the day after the law was passed in 2012, challenging these reporting requirements as a burden on the First Amendment right to free and anonymous speech. A lower court agreed with the groups in January 2013 and issued a preliminary injunction, halting enforcement of the law. Today, the Ninth Circuit upheld that lower court ruling.
"[T]he CASE Act directly and exclusively burdens speech, and a substantial amount of that speech is clearly protected under the First Amendment," Ninth Circuit Judge Jay Bybee wrote in the opinion.
The court noted that the law was overly broad, affecting speech unrelated to sexual offenses, such as "blogging about political topics and posting comments to online news articles. " This creates the "inevitable effect of burdening sex offenders' ability to engage in anonymous online speech," Bybee wrote. The court also found that there was no evidence that throwing out this part of Proposition 35 would hamper the state's ability to investigate online sex offenses.
"We're pleased the court recognized important First Amendment principles of free and anonymous speech apply to everyone, regardless of what crimes they may have committed in the past," EFF Staff Attorney Hanni Fakhoury said. "While the law may be well-intentioned, its broad language opened the door for the government to chill free speech. Restrictions targeting sex offenders are often a stepping stone for the expansion of law enforcement power against other classes of unpopular people."
The court's ruling means the preliminary injunction prohibiting enforcement of the reporting requirements of the CASE Act remains in effect.
Contact:
Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org
EFF Joins Local and National Groups in Call to Protect the Internet
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
EFF Files Amicus Brief on Behalf of Tech Pioneers in Oracle v. Google Court Battle
San Francisco - The Electronic Frontier Foundation (EFF) filed a brief with the Supreme Court of the United States today, arguing on behalf of 77 computer scientists that the justices should review a disastrous appellate court decision finding that application programming interfaces (APIs) are copyrightable. That decision, handed down by the U.S. Court of Appeals for the Federal Circuit in May, up-ended decades of settled legal precedent and industry practice.
Signatories to the brief include five Turing Award winners, four National Medal of Technology winners, and numerous fellows of the Association for Computing Machinery, IEEE, and the American Academy of Arts and Sciences. The list also includes designers of computer systems and programming languages such as AppleScript, AWK, C++, Haskell, IBM S/360, Java, JavaScript, Lotus 1-2-3, MS-DOS, Python, Scala, SmallTalk, TCP/IP, Unix, and Wiki.
"The Federal Circuit's decision was wrong and dangerous for technological innovation," EFF Intellectual Property Director Corynne McSherry said. "Excluding APIs from copyright protection has been essential to the development of modern computers and the Internet. The ruling is bad law, and bad policy."
Generally speaking, APIs are specifications that allow programs to communicate with each other. So when you type a letter in a word processor, and hit the print command, you are using an API that lets the word processor talk to the printer driver, even though they were written by different people.
The brief explains that the freedom to re-implement and extend existing APIs has been the key to competition and progress in both hardware and software development. It made possible the emergence and success of many robust industries we now take for granted—for example, mainframes, PCs, and workstations/servers—by ensuring that competitors could challenge established players and advance the state of the art.
The litigation began several years ago when Oracle sued Google over its use of Java APIs in the Android OS. Google wrote its own implementation of the Java APIs, but, in order to allow developers to write their own programs for Android, Google's implementation used the same names, organization, and functionality as the Java APIs.
In May 2012, Judge William Alsup of the Northern District of California ruled that the Java APIs are not subject to copyright. The court understood that ruling otherwise would have allowed Oracle to tie up "a utilitarian and functional set of symbols" that provides the basis for so much of the innovation and collaboration we all rely on today. The Federal Circuit disagreed, holding that Java's API packages were copyrightable, although it sent the case back to the trial court to determine whether Google's copying was nonetheless a lawful fair use.
"For decades, computer scientists and the courts have all understood that copyright doesn't protect APIs," EFF Special Counsel Michael Barclay said. "We hope that the Supreme Court will review this case and reverse the Federal Circuit's misguided opinion, which up-ended decades of industry practice and threatens the basic principles upon which our technology sector was built."
For EFF's amicus brief:
https://www.eff.org/document/amicus-brief-computer-scientists-scotus
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Michael Barclay
Special Counsel
Electronic Frontier Foundation
michael@eff.org
Longtime ED Shari Steele to Step Down After 22 Years at EFF
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
EFF's 'Secure Messaging Scorecard' Rates Digital Communication Tools
San Francisco - In the face of widespread Internet data collection and surveillance, we need a secure and practical means of talking to each other from our phones and computers. Many companies offer "secure messaging" products - but how can users know if these systems actually secure? The Electronic Frontier Foundation (EFF) released its Secure Messaging Scorecard today, evaluating dozens of messaging technologies on a range of security best practices.
"The revelations from Edward Snowden confirm that governments are spying on our digital lives, devouring all communications that aren't protected by encryption," said EFF Technology Projects Director Peter Eckersley. "Many new tools claim to protect you, but don't include critical features like end-to-end encryption or secure deletion. This scorecard gives you the facts you need to choose the right technology to send your message."
The scorecard includes more than three dozen tools, including chat clients, text messaging apps, email applications, and technologies for voice and video calls. EFF examined them on seven factors, like whether the message is encrypted both in-transit and at the provider level, and if the code is audited and open to independent review. Six of these tools scored all seven stars, including ChatSecure, CryptoCat, Signal/Redphone, Silent Phone, Silent Text, and TextSecure. Apple's iMessage and FaceTime products stood out as the best of the mass-market options, although neither currently provides complete protection against sophisticated, targeted forms of surveillance. Many options—including Google, Facebook, and Apple's email products, Yahoo's web and mobile chat, Secret, and WhatsApp—lack the end-to-end encryption that is necessary to protect against disclosure by the service provider. Several major messaging platforms, like QQ, Mxit, and the desktop version of Yahoo Messenger, have no encryption at all.
"We're focused on improving the tools that everyday users need to communicate with friends, family members, and colleagues," said EFF Staff Attorney Nate Cardozo. "We hope the Secure Messaging Scorecard will start a race-to-the-top, spurring innovation in stronger and more usable cryptography."
The Secure Messaging Scorecard is part of EFF's new Campaign for Secure and Usable Cryptography, and was produced in collaboration with Julia Angwin at ProPublica and Joseph Bonneau at the Princeton Center for Information Technology Policy.
For the full Secure Messaging Scorecard:
https://www.eff.org/secure-messaging-scorecard
Contacts:
Peter Eckersley
Technology Projects Director
Electronic Frontier Foundation
pde@eff.org
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Ridiculous Exemption Process Forces Consumers to Beg for Basic Rights
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
Court Should Rule That Mass Telephone Records Collection Is Unconstitutional in Klayman v. Obama
Washington, D.C. - The Electronic Frontier Foundation (EFF) will appear before a federal appeals court next week to argue the National Security Agency (NSA) should be barred from its mass collection of telephone records of million of Americans. The hearing in Klayman v. Obama is set for 9:30 am on Tuesday, Nov. 4 in Washington, D.C.
Appearing as an amicus, EFF Legal Director Cindy Cohn will present oral argument at the U.S. Court of Appeals for the District of Columbia Circuit on behalf of EFF and the American Civil Liberties Union (ACLU), which submitted a joint brief in the case.
Conservative activist and lawyer Larry Klayman filed the suit in the aftermath of the first Edward Snowden disclosure, in which The Guardian revealed how the NSA was collecting telephone records on a massive scale from the telecommunications company Verizon. In December, District Court Judge Richard Leon issued a preliminary injunction in the case, declaring that the mass surveillance program was likely unconstitutional.
EFF argues that the call-records collection, which the NSA conducts with claimed authority under Section 215 of the USA PATRIOT Act, violates the Fourth Amendment rights of millions of Americans. Separately, EFF is counsel in two other lawsuits against the program—Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA—and is co-counsel with the ACLU in a third, Smith v. Obama.
What: Oral Argument in Klayman v. Obama
Who: EFF Legal Director Cindy Cohn
When: 9:30 am (ET), Nov. 4, 2014
Where: E. Barrett Prettyman U.S. Courthouse and William B. Bryant Annex
Courtroom 20
333 Constitution Ave., NW
Washington, D.C. 20001
For background and legal documents:
https://www.eff.org/cases/klayman-v-obama
The audio of the oral arguments is expected to be available on the court's website sometime after the hearing: http://www.cadc.uscourts.gov/recordings/recordings.nsf/
Contact:
Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org
Wordpress, NameCheap Receive Five Stars in New EFF Scorecard
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 EnlargeEFF 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
EFF Releases Updated Guide to Privacy and Security for Internet Users Worldwide
San Francisco - The Electronic Frontier Foundation (EFF) launched its updated "Surveillance Self-Defense" report today, a comprehensive how-to guide to protecting yourself from electronic spying for Internet users all over the world.
"Everyone has something to protect, whether its from the government or stalkers or data-miners," said EFF International Director Danny O'Brien. "Surveillance Self-Defense will help you think through your personal risk factors and concerns—is it an authoritarian government you need to worry about, or an ex-spouse, or your employer?—and guide you to appropriate tools and practices based on your specific situation."
Surveillance Self-Defense includes briefings on important security issues, tutorials on using specific privacy software like PGP and OTR, and guides for specific categories of users, like human rights activists or journalism students. People who are just beginning to upgrade their communications privacy can choose the "Security Starter Pack."
"The Internet and other electronic communications have empowered people all over the globe to speak out and make connections in world-changing ways," said EFF Director for International Freedom of Expression Jillian York. "But this has also opened new opportunities for tracking and exposure. Surveillance Self-Defense will teach you to think critically about your Internet use and make good choices even as the technology changes around you."
Surveillance Self-Defense was first launched in 2009, aimed at educating Americans about the law and technology of communications surveillance. The new report expands, revises, and updates the old guide for use across the globe with support from the Ford Foundation. EFF spoke and worked with experts and activists from across the world, from MIT to the Middle East, in developing the guide. The entire Surveillance Self-Defense project is available in English, Spanish, and Arabic, with more languages available soon.
For the Surveillance Self-Defense guide:
https://ssd.eff.org
Contacts:
Eva Galperin
International Freedom of Expression Coordinator
Electronic Frontier Foundation
eva@eff.org
Danny O'Brien
International Outreach Coordinator
Electronic Frontier Foundation
danny@eff.org
Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation
katitza@eff.org.
Jillian York
Director for International Freedom of Expression
Electronic Frontier Foundation
jillian@eff.org
Privacy, Economic and Free Speech Flaws in Proposed Bitcoin Regulatory Scheme
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
Sites Highlight How Opponents of Mass Surveillance Around the World Lead by Example
San Francisco - The Electronic Frontier Foundation (EFF) today launched IFightSurveillance.org, a new site showcasing digital privacy advocates from around the world who are leading the fight against mass surveillance. The site includes figures from the organization's growing list of Counter-Surveillance Success Stories, a set of guides showing how individuals and organizations have taken on state and corporate spying in their own countries—and won.
Translated into 16 languages, IFightSurveillance.org highlights images and quotes from activists, business leaders, lawyers, and technologists. Examples include:
- Vladan Sobjer, whose organization, SHARE Defense, helps Serbians learn about encryption.
- Ron Deibert, whose group, the Citizen Lab, analyzes malware and digital threats to vulnerable groups from Bahrain to Iran.
- Anne Roth, whose own unjust surveillance by German law enforcement led her to work for better protections for her fellow citizens.
"Too often, the debate over surveillance is seen as a 'domestic' issue, only of concern to citizens of the country doing the spying," EFF International Director Danny O'Brien said. "The truth is that mass surveillance isn't confined to national borders, and neither is the response to it. Technologists, activists, and Internet users are all working to fight back against mass surveillance. Wherever you are, whoever you are, there are people close to you working to stop the spying, and you can join them."
The site provides five concrete steps activists can take, including using encryption software to protect themselves, supporting a decentralized Internet, and signing onto the 13 "Necessary and Proportionate Principles," a global framework to protect human rights in an age of mass surveillance. Visitors are encouraged to use the site's social media tools to share their stories of standing up for privacy and to learn about the more than 400 privacy rights organization that have endorsed the 13 principles.
IFightSurveillance.org's companion site, Counter-Surveillance Success Stories (http://www.eff.org/csss), delves into greater detail about the work of the global coalition, spotlighting battles for privacy in Zimbabwe as well as countries across North America and Europe.
Links:
I Fight Surveillance: https://ifightsurveillance.org
Counter-Surveillance Success Stories: https://www.eff.org/csss
Contact:
Danny O'Brien
International Director
Electronic Frontier Foundation
danny@eff.org
Ninth Circuit Court of Appeals to Stream October 8 Hearing on Key Patriot Act Tool
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:
No Single Country Should Have Veto Power Over Global Search Results
Vancouver, Canada - The Electronic Frontier Foundation (EFF) filed a brief with the British Columbia Court of Appeal in Canada on Monday weighing in on a ruling that Google must block certain entire websites from its search results around the world.
EFF intervened in Equustek Solutions v. Morgan Jack after a trial court ruled in June that Google must remove links to full websites that contained pages selling a product that allegedly infringed trade secret rights. The injunction not only applied to Google's Canada-specific search, Google.ca, but to all of its searches around the world. Google had offered to remove 345 URLs but would not block the entire category of websites, because they contained pages that "may be used for any number of innocent purposes."
Such a broad injunction sets a dangerous precedent, especially where the injunction is likely to conflict with the laws of other nations. In its brief, EFF explains how the trial court's injunction decision would have likely violated the U.S. Constitution and constituted an improper "mandatory injunction" under case law in California, where Google is based. By blocking entire websites, Canadian courts potentially censor innocent content that U.S. Internet users have a constitutional right to receive.
"The scope of the Canadian court's order could chill speech across the Internet," EFF Staff Attorney Vera Ranieri said. "If a Canadian court is able to block search results around the world, it sets a precedent that nations with authoritarian restrictions on speech can also impose their own rules on the global Internet."
"We hope the court considers how the ruling affects the public interest in free expression," EFF Intellectual Property Director Corynne McSherry said. "No single country should have veto power over Internet speech."
EFF filed the brief with the assistance of pro bono counsel David Wotherspoon of Fasken Martineau DuMoulin, LLP. The appeal will be argued over three days in the last week of October.
For the filing:
https://www.eff.org/document/eff-factum-equustek-v-morgan-jack
Contacts:
Vera Ranieri
Staff Attorney
Electronic Frontier Foundation
vera@eff.org
New Jersey Prosecutors Issue Flawed Subpoena for Tidbit Source Code
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
'Anti-Circumvention' Provisions Harm Users, Researchers, Innovators, and More
Washington, D.C. - Electronic Frontier Foundation (EFF) Intellectual Property Director Corynne McSherry will testify Wednesday at a congressional hearing on the Digital Millennium Copyright Act (DMCA) and the dangerous "anti-circumvention" provisions that harm users, researchers, innovators, and more.
The anti-circumvention language of Section 1201 of the DMCA has been used to threaten those who unlock or jailbreak their phones, block aftermarket competition in toner cartridges and video came console accessories, and narrow the public's fair use rights. In her testimony Wednesday, McSherry will argue that the costs of this law far outweigh the benefits, and that best way to fix Section 1201 is to get rid of it entirely. Short of that, the anti-circumvention provisions should be reformed so that it is focused clearly on copyright infringement.
Wednesday's hearing is part of the House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet.
WHO:
Corynne McSherry
Intellectual Property Director, Electronic Frontier Foundation
WHAT:
"Chapter 12 Under Title 17"
The House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet
WHEN:
10 a.m.
Wednesday, September 17
WHERE:
2141 Rayburn House Office Building
Washington, D.C. 20515
For more on the hearing:
http://judiciary.house.gov/index.cfm/2014/9/hearing-chapter-12-of-title-17
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
EFF Takes on Net Neutrality's Critics in New Comments to FCC
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
Wizards, Browncoats, Sherlockians, and Other Creative Communities Join EFF in “Project Secret Identity” Photo Campaign
Atlanta - The Electronic Frontier Foundation (EFF), sci-fi blog io9, and a coalition of fan communities are launching "Project Secret Identity," a cosplay photo campaign to raise awareness of the importance of anonymity and privacy during the annual pop culture convention Dragon Con in Atlanta, Georgia, Aug. 29 - Sept. 1.
The campaign, online at ProjectSecretIdentity.org, is supported by a cross-fandom coalition of organizations, including: Southeastern Browncoats, a Firefly-inspired non-profit; the Harry Potter Alliance, an activism organization; the Baker Street Babes, a Sherlock Holmes fan group and podcast; Wattpad, a community of readers and writers; and the Organization for Transformative Works, a fan-culture advocacy organization.
"Whether it's the 'Eye of Sauron' in The Lord of the Rings or 'The Machine' in Person of Interest, genre culture has long explored and criticized mass surveillance," said EFF Investigative Researcher Dave Maass. "The last year's worth of stories about the NSA have read too much like dystopian fiction. In response, we need to focus the imaginations of fans to advocate for a future where free expression is protected through privacy and anonymity. "
During the campaign, cosplayers around the world can use ProjectSecretIdentity.org to post photos of themselves in costume bearing pro-anonymity slogans, such as "I Have the Right to a Secret Identity" and "Privacy is Not a Fantasy." Dragon Con attendees can also stop by the Project Secret Identity photo stations at EFF's table (second floor at the Hilton Atlanta) and the Southeastern Browncoats' booth (#1000 at AmericasMart).
"In J.K. Rowling's novels, Voldemort came to power not only through coercion, but by monitoring, controlling, and censoring the Wizarding World's lines of communication," Harry Potter Alliance Executive Director Paul DeGeorge said. "In the real world, there is no charm-protected room where we can meet and organize in secret. What we have is the Internet and we need to fight to keep it free and secure."
"Freedom from oppressive governments is central to the ethos of the Firefly fandom," said Serenity Richards, captain of the Southeastern Browncoats. "By standing up for anonymity today, we can prevent 'The Alliance' from becoming a reality in the future."
The activism campaign coincides with Dragon Con's Electronic Frontiers Forum, a track of panels on the intersection of technology with free speech and privacy. EFF Deputy General Counsel Kurt Opsahl will present an update to his acclaimed presentation, "Through a PRISM, Darkly: Everything we know about NSA spying," which debuted at the Chaos Communication Congress in Hamburg, Germany in December 2013. Opsahl and Maass will also speak on a number of discussion panels, covering issues ranging from police searches of cell phones to the Freedom of Information Act.
EFF will also support screenings of Terms and Conditions May Apply, a 2013 documentary about Web site terms of service, and The Internet's Own Boy, Brian Knappenberger's 2014 documentary about the late Internet activist Aaron Swartz.
Founded in 1987, Dragon Con is expected to draw more than 62,000 attendees this year.
For EFF's schedule at Dragon Con:
https://www.eff.org/event/eff-goes-dragon-con
Contact:
Dave Maass
Media Relations Coordinator and Investigative Researcher
Electronic Frontier Foundation
press@eff.org
Cosplay photos:
Top: Kiba Shiruba as "Cyber" Frey from Fisheye Placebo. (High resolution)
EFF Investigative Researcher Dave Maass as Harry Tuttle from Brazil. (High resolution)
Hannah Grimm as Chell from Portal. (High resolution)
EFF to Honor Former U.N. Special Rapporteur Frank LaRue, U.S. Rep. Zoe Lofgren, and artist Trevor Paglen at San Francisco Ceremony Featuring the Yes Men
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
Americans Deserve Full Protection of the Fourth Amendment for their Telephone Records, Groups Argue
Washington, DC - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) today filed an amicus brief in Klayman v. Obama, a high-profile lawsuit that challenges mass surveillance, arguing that Americans' telephone metadata deserves the highest protection of the Fourth Amendment.
Larry Klayman, conservative activist and founder of Judicial Watch and Freedom Watch, was among the first plaintiffs to sue the National Security Agency (NSA) over the collection of telephone metadata from Verizon customers that was detailed in documents released by Edward Snowden. In December 2013, Judge Richard Leon issued a preliminary ruling that the program was likely unconstitutional, and the case is currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit.
In the new amicus brief in Klayman v. Obama, the EFF and ACLU lawyers repudiate arguments by U.S. officials that the records are "just metadata" and therefore not as sensitive as the contents of phone calls. Using research and new case law, the civil liberties groups argue that metadata (such as who individuals called, when they called, and how long they spoke) can be even more revealing than conversations when collected en masse.
"Metadata isn't trivial," EFF Legal Fellow Andrew Crocker says. "Collected on a massive scale over a broad time period, metadata can reveal your political and religious affiliations, your friends and relationships, even whether you have a health condition or own guns. This is exactly the kind of warrantless search the Fourth Amendment was intended to prevent."
The brief explains that changes in technology, as well as the government's move from targeted to mass surveillance, mean that the holding of the 1979 Supreme Court case Smith v. Maryland that the government relies on (often called the "third-party doctrine") does not apply. Instead, EFF and the ACLU point to a series of recent key decisions—including the Supreme Court decisions in United States v. Jones in 2012 and Riley v. California in 2014—in which judges ruled in favor of requiring a warrant for electronic search and seizure.
"Dragnet surveillance is and has always has been illegal in the United States," says ACLU Staff Attorney Alex Abdo. "Our country's founders rebelled against overbroad searches and seizures, and they would be aghast to see the liberties they fought hard to enshrine into our Constitution sacrificed in the name of security. As even the president himself has recognized, we can keep the nation safe without surrendering our privacy."
EFF and the ACLU have each litigated numerous First and Fourth Amendment lawsuits related to NSA surveillance and together represent Idaho nurse Anna Smith in a similar case currently on appeal in the Ninth Circuit Court of Appeals called Smith v. Obama. The ACLU is a plaintiff in a case currently pending before the Second Circuit Court of Appeals, ACLU v. Clapper, to be heard on Sept. 2. EFF has two cases—Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA—before the U.S. District Court for Northern District of California.
For the amicus brief:
https://www.eff.org/document/eff-and-aclu-amicus-brief-klayman
Contacts:
Andrew Crocker
Legal Fellow
Electronic Frontier Foundation
andrew@eff.org
The Internet's Own Boy Director Brian Knappenberger Releases Short Doc as Senate Introduces New Reform Bill
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.
EFF Asks Appeals Court to Protect Free Speech and Innovation in Capitol v. Vimeo
San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of advocacy groups have asked a federal appeals court to block record labels' attempt to thwart federal law in Capitol v. Vimeo—a case that could jeopardize free speech and innovation and the sites that host both.
In this lawsuit, the record labels sued online video site Vimeo, alleging that dozens of sound recordings were infringed in videos posted on the site. A ruling from a district court judge earlier this year found Vimeo could be responsible for copyright infringement, and in doing so imposed new, impossibly high standards for websites hosting user-generated content. In an amicus brief filed Wednesday, EFF argues that the decision undermines the safe harbors created by the Digital Millennium Copyright Act (DMCA), and the innovation and expression those safe harbors make possible.
"The safe harbors give websites a clear set of rules. If they follow the law in their response to complaints from copyright owners, then they can predict and manage their exposure to lawsuits and other legal challenges," said EFF Intellectual Property Director Corynne McSherry. "The safe harbors are critical to the Internet's success as a forum for innovative art, discussion, and expression of all kinds, forestalling crippling litigation that would force most websites to close their doors. Yet the district court created new liability, contrary to the law and the intent of Congress."
At issue in Capitol v. Vimeo are videos that Vimeo employees viewed or interacted with, as well as pre-1972 sound recordings, which receive different copyright protection than post-1972 works. Essentially, the decision would seem to offer service providers an impossible choice: scour the website for any content that anyone could argue might include pre-1972 audio and thereby potentially lose safe harbor protections, or risk expensive copyright litigation.
"This is exactly the result that Congress was trying to avoid with the safe harbors—without them service providers unwilling to risk being sued may decide not to host videos and other works with audio at all," said EFF Staff Attorney Vera Ranieri. "We hope the appeals court steps in to reinforce the law and protect free speech and innovation online."
Also joining EFF's brief are the Center for Democracy and Technology, New Media Rights, the Organization for Transformative Works, and Public Knowledge.
For the full amicus brief:
https://www.eff.org/document/amicus-brief-23
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Vera Ranieri
Staff Attorney
Electronic Frontier Foundation
vera@eff.org
Graphic Explains to Court and the Public How the NSA Seizes and Searches Innocent Americans' Communications
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
Add-On for Firefox and Chrome Prevents Spying by Ads, Social Widgets, and Hidden Trackers
San Francisco - The Electronic Frontier Foundation (EFF) has released a beta version of Privacy Badger, a browser extension for Firefox and Chrome that detects and blocks online advertising and other embedded content that tracks you without your permission.
Privacy Badger was launched in an alpha version less than three months ago, and already more than 150,000 users have installed the extension. Today's beta release includes a feature that automatically limits the tracking function of social media widgets, like the Facebook "Like" button, replacing them with a stand-in version that allows you to "like" something but prevents the social media tool from tracking your reading habits.
"Widgets that say 'Like this page on Facebook' or 'Tweet this' often allow those companies to see what webpages you are visiting, even if you never click the widget's button," said EFF Technology Projects Director Peter Eckersley. "The Privacy Badger alpha would detect that, and block those widgets outright. But now Privacy Badger's beta version has gotten smarter: it can block the tracking while still giving you the option to see and click on those buttons if you so choose."
EFF created Privacy Badger to fight intrusive and objectionable practices in the online advertising industry. Merely visiting a website with certain kinds of embedded images, scripts, or advertising can open the door to a third-party tracker, which can then collect a record of the page you are visiting and merge that with a database of what you did beforehand and afterward. If Privacy Badger spots a tracker following you without your permission, it will either block all content from that tracker or screen out the tracking cookies.
Privacy Badger is one way that Internet users can fight the decision that many companies have made to ignore Do Not Track requests, the universal Web tracking opt-out you can enable in your browser. Privacy Badger enforces users' preferences whether these companies respect your Do Not Track choice or not. Advertisers and other third-party domains that are blocked in Privacy Badger can unblock themselves by making a formal commitment to respect their users' Do Not Track requests.
"Users who install Privacy Badger aren't just getting more privacy and a better browsing experience for themselves—they are providing incentives for improved privacy practices and respect for Do Not Track choices across the Internet," said Eckersely. "Using Privacy Badger helps to make the Web as a whole better for everyone."
EFF wishes to thank Professor Franziska Roesner at the University of Washington for exceptional work in enhancing Privacy Badger's widget-handling algorithms.
To install the beta version of Privacy Badger:
https://www.eff.org/privacybadger
Contact:
Peter Eckersley
Technology Projects Director
Electronic Frontier Foundation
pde@eff.org
Court of Appeals Agrees to Expedite Case Over Telephone Records Collection
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
Agency Must Abandon Dangerous Traffic-Discrimination Plan
San Francisco - The Electronic Frontier Foundation (EFF) has told the Federal Communications Commission (FCC) that the agency must abandon its current, dangerous plan to allow for Internet traffic discrimination. Instead, EFF is urging the FCC to reclassify the Internet as a "common carrier" and also to restrict itself to limited and tightly bounded regulation.
In formal comments submitted to the FCC, EFF argues that defending the neutral Internet is critical to protecting new online applications and services – innovations that have made the Internet a global platform for free expression and commerce of every kind.
"An open, neutral, and fast Internet has sparked an explosion of innovation in everything from shopping to the way we exchange ideas and debate potential political change," said EFF Intellectual Property Director Corynne McSherry. "But its founding principles are now under threat. It's time for users to take action to protect our Internet."
The FCC has long promised to take steps to protect the open Internet, but earlier this year the agency announced a net neutrality proposal that would allow for so-called "Internet fast lanes." The plan claims to promote a neutral Internet, but embraces a "commercially reasonable" standard for network management, allowing ISPs to make special deals that would give some services privileged access to subscribers.
EFF believes that market competition should be the first line of defense against abusive ISP practices like non-neutral behavior. But because most Americans have only one or two realistic choices for residential broadband, normal market forces might not prevent discriminatory policies.
In its formal comments, EFF outlines a better way to protect the open Internet. A crucial piece is classifying broadband as a "telecommunications service" instead of an "information service," allowing the FCC to enforce "common carrier" rules like the ones that ensure fair and equal telephone service. At the same time, the FCC should only regulate narrowly, with clear rules. To prevent over-regulation, the FCC should explicitly "forbear" from applying many rules better suited for telephone service than Internet service – an official procedure the FCC has used in the past. In the meantime, the FCC can do more to require real transparency about broadband provider practices, as well as take steps to restore the open access rules that helped spark the early growth of the Internet.
"The FCC's current course is dangerous. It could undermine what makes the Internet the groundbreaking technology that it is," said EFF Staff Attorney Mitch Stoltz. "It's time for the FCC to leave its flawed proposal aside and work on a better plan to support the open Internet."
The FCC is taking comment from the general public until September 10. You can send your views in through EFF's tool at DearFCC.org. So far, hundreds of thousands of people have submitted comments to the FCC, and the agency's site was only working intermittently Tuesday because of the large amount of traffic.
For EFF's full comments to the FCC:
https://www.eff.org/document/effs-formal-comments-fcc
To submit your own comments:
https://dearfcc.org
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Government Needs to Reveal Decision-Making Process for Publicizing Vulnerabilities
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
Flight Promotes StandAgainstSpying.org, New Site Calling on Congress to Act
Bluffdale, UT - The environmental campaigning group Greenpeace, digital rights watchdog Electronic Frontier Foundation (EFF) and the Tenth Amendment Center (TAC) joined forces today to fly an airship over the NSA's data center in Utah to protest the government's illegal mass surveillance program.
Greenpeace flew its 135-foot-long thermal airship over the Bluffdale, UT, data center early Friday morning, carrying the message: "NSA Illegal Spying Below" along with a link steering people to a new web site, StandAgainstSpying.org, which the three groups launched with the support of a separate, diverse coalition of over 20 grassroots advocacy groups and Internet companies. The site grades members of Congress on what they have done, or often not done, to rein in the NSA.
"Rights rise or fall together," Greenpeace Senior IT Campaigner Gary Cook said. "Greenpeace has learned firsthand that people cannot protect their right to clean air and water if our civil rights – including the right to free association and the right to be free of unreasonable searches – are stripped away."
"The public needs to be brought into the Congressional debate around surveillance reform happening right now," EFF Activism Director Rainey Reitman said. "We're flying an airship over the Utah data center, which has come to symbolize the NSA's collect-it-all approach to surveillance, and demanding an end to the mass spying. It's time for bold action in defense of our privacy."
"Our right to privacy is not a partisan issue. It's a human rights issue," said Michael Boldin, executive director and founder of the Tenth Amendment Center. "This coalition gives great hope for the future because it shows that people across the political spectrum can set aside differences to work together for common cause."
Greenpeace is a co-plaintiff on a lawsuit filed against the NSA by a broad coalition of membership and political advocacy organizations, represented by EFF, for violating their First Amendment right of association by illegally collecting their call records.
Photos of the airship flight are available here under a Creative Commons Attribution license:
https://www.eff.org/files/2014/06/27/8.14.68_utah_airship_flight.1137.jpg
https://www.eff.org/files/2014/06/27/8.14.68_utah_airship_flight.2072.jpg
https://www.eff.org/files/2014/06/27/8.14.68_utah_airship_flight.1051.jpg
https://www.eff.org/files/2014/06/27/8.14.68_utah_airship_flight.1108.jpg
Please attribute to Greenpeace.
Contacts:
Rainey Reitman
Activism Director
Electronic Frontier Foundation
rainey@eff.org
David Pomerantz
Greenpeace
david.pomerantz@greenpeace.org
Diverse Coalition Reveals Lawmakers Who Aced, Failed and Were Missing in the Debate Over Mass Spying
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
Justices Rule Changing Technology Demands Limits for Police but Requires Permission from TV Broadcasters
San Francisco - The U.S. Supreme Court issued two big rulings in important technology cases today.
In a groundbreaking decision on cell phone privacy, the court set powerful limits for police searches of cell phones, ruling in two consolidated cases that law enforcement must get a warrant before accessing the data on an arrested person's cell phone. The Electronic Frontier Foundation (EFF) filed amicus briefs in both of the cell phone search cases that were at issue in today's decision.
"These decisions are huge for digital privacy," EFF Staff Attorney Hanni Fakhoury said. "The court recognized that the astounding amount of sensitive data stored on modern cell phones requires heightened privacy protection, and cannot be searched at a police officer's whim. This should have implications for other forms of government electronic searches and surveillance, tightening the rules for police behavior and preserving our privacy rights in our increasingly digital world."
In its opinion, the court confirmed the importance of the warrant requirement, writing "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."
EFF also filed an amicus brief in American Broadcasting Companies v. Aereo, a case where TV-streaming company Aereo was innovating when and how consumers watch television programs. The court decided, incorrectly we believe, that Aereo needed copyright holders' permission to stream free over-the-air broadcast TV shows, creating new uncertainty for cloud storage systems and other new technologies that transmit content.
"With this ruling, the Supreme Court said that technology companies can't rely on the words of the Copyright Act—companies can follow the letter of the law but still get shut down if a court decides that their business is somehow similar to a cable company," said EFF Staff Attorney Mitch Stoltz. "This decision will make it harder for new independent media technologies to get launched and funded without the blessing of major media companies, and that's a loss for all of us."
EFF will have in-depth analysis of both these cases on its Deeplinks blog coming soon.
Contacts:
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Microsoft Fights to Protect Data Held on Servers in Ireland
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
Public Deserves to See Secret Law Written by Office of Legal Counsel
Washington, DC - The Electronic Frontier Foundation (EFF) today asked the Supreme Court of the United States to weigh in on a long-standing Freedom of Information Act (FOIA) lawsuit in which EFF sought to obtain a secret legal memo authorizing the FBI to obtain phone records without any legal process.
As part of the U.S. Department of Justice, the Office of Legal Counsel (OLC) issues opinions that provide the legal justification for a wide variety of executive branch activities, in ways that affect millions of Americans. The opinion sought by EFF appears to have authorized the federal government, specifically the FBI, to obtain call records without judicial approval and without citing an emergency to justify the data collection.
Some of the most controversial government practices of the past 15 years—such as torture and the targeted killing of Americans abroad—were based on OLC legal authorizations. If EFF's petition for a "writ of certiorari" is successful, the Supreme Court will have the opportunity to decide when OLC opinions should be released to the public.
"The public has a fundamental right to know how the federal government is interpreting surveillance and privacy laws," EFF Senior Counsel David Sobel said. "If the Office of Legal Counsel has interpreted away federal privacy protections in secret, the public absolutely needs access to that analysis. There is no way for the public to intelligently advocate for reforms when we're intentionally kept in the dark."
The existence of this opinion first came to light in a report issued by the Justice Department's Inspector General on the FBI's use of its surveillance authorities in national security investigations. The Inspector General's report indicated the OLC issued a determination that appeared to conflict with the Stored Communications Act, a federal privacy law that safeguards customer call records from disclosure to the government without valid legal process.
EFF submitted a FOIA request for more information. The Justice Department refused to comply and subsequently EFF filed a lawsuit in May 2011 to obtain the records. While the case was unsuccessful at the district and appeals court levels, EFF believes the issue is of such significance that it merits review by the highest court.
"OLC opinions have formed the legal basis for some incredibly controversial government actions," EFF Staff Attorney Mark Rumold said. "It can't be left to the executive branch's discretion to release these critically important opinions. We hope the Supreme Court will take the opportunity to clarify that this type of secret law has no place in a democratic society."
For the petition for writ of certiorari: https://www.eff.org/document/eff-v-doj-petition-writ-certiorari
For more on this case: https://www.eff.org/foia/foia-secret-surveillance-law-memo
Contacts:
Mark Rumold
Staff Attorney
Electronic Frontier Foundation
mark@eff.org
David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org
EFF Told Court Yesterday Government Still Destroying Evidence Despite Court Order
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
Government Argues Court's Order Does Not Apply to Certain Categories of Surveillance
San Francisco - A federal judge asked for more briefing today after an emergency court hearing over destruction in a case challenging NSA spying from the Electronic Frontier Foundation (EFF).
Andrew Crocker, Rick Wiebe, and Cindy Cohn"We are pleased the court is receptive to our arguments – that this is the information that court ordered the government to retain, and is an important element of our litigation," said EFF Legal Director Cindy Cohn. "It's unfortunate that the court's order today allows the government to continue destroying evidence that the government itself insists we need, but we are looking forward to giving the judge all the information he needs to come to a final decision."
U.S. District Judge Jeffrey S. White issued a temporary restraining order (TRO) blocking evidence destruction in March. But yesterday afternoon, EFF filed an emergency motion, 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. Today, Judge White called an emergency hearing, where the government argued that preserving the surveillance data gathered under Section 702 would be gravely harmful to national security programs. While the TRO remains in effect, that Judge White ruled that the government nevertheless did not need to preserve data collected pursuant to Section 702 until the court makes a further ruling on the issue.
EFF has been litigating against illegal NSA surveillance for more than eight years. Jewel v. NSA is a case brought on behalf of AT&T customers who were subject to unconstitutional NSA spying. In First Unitarian Church of Los Angeles v. NSA, EFF represents 22 groups whose First Amendment rights to association are violated by the NSA program. EFF also filed one of the first lawsuits against the surveillance program back in 2006, Hepting v. AT&T.
For more on Jewel v. NSA:
https://www.eff.org/cases/jewel
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Judge Requires Explanation by Friday About Whether Government Is Still Destroying Evidence Despite Court Order
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.
Pages
eff.org/nsa-spying
