Aggregated News

Proposed Anti-Terror Law in France Would Erode Civil Liberties - Sat, 13/09/2014 - 02:10

A proposed anti-terrorism law in France has freedom of expression advocates concerned.  The bill, as our friends at La Quadrature du Net frame it, “institutes a permanent state of emergency on the Internet,” providing for harsher penalties for incitement or “glorification” of terrorism conducted online.  Furthermore, the bill (in Article 9) allows for “the possibility for the administrative authority to require Internet service providers to block access to sites inciting or apologizing for terrorism” without distinguishing criteria or an authority to conduct the blocking.

Apart from specific concerns that the bill treats online speech as distinct from other speech, other provisions are just as problematic. For example, while Article 4 refers to “provocation aux actes de terrorisme” or “incitement to terrorism”—a clearly defined legal concept—it also refers to “apologie du terrorisme” or “apologizing” or “glorifying” terrorism, implying a condemnation of opinions alone rather than any overt acts, as Reporters Without Borders points out.  La Quadrature du Net’s mini-site on the bill addresses further concerns (in French).

Anti-terror laws have been used in various countries around the world to prosecute individuals for their speech about unpopular ideas. In the United States, the prosecution of Tarek Mehanna—a young Muslim who translated and posted material referred to by prosecutors as “Al Qaeda propaganda”—involved the use of conspiracy and so-called “material support” laws. In Ethiopia, anti-terror laws have been used to silence journalists and are currently being used to prosecute the dissident Zone9 Bloggers. And the list goes on.

France’s attempt to “cleanse” the Internet of terrorist content isn’t a first in the EU either. In 2012, a leaked document showed that the European Commission sought to make use of private Internet companies to remove terrorist content, without oversight or accountability.

While terrorism itself is a serious concern, it is far too often invoked as the justification for a broader clamp down on civil liberties. We support La Quadrature du Net in opposing this dangerous bill and encourage our French readers to check out their mini-site for information on the bill and how to fight back against it.

Related Issues: Free SpeechInternational
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The #InternetSlowdown Was Epic - Fri, 12/09/2014 - 05:10
The #InternetSlowdown Was EpicCandace ClementSeptember 11, 2014 The Internet Slowdown drove more than 2 million emails and nearly 300,000 calls to Congress. And so many pro-Net Neutrality comments were filed (722,364 to be exact) that the FCC's site broke (again).
Categories: Aggregated News

EFF to Sen. Wyden: Stand Up for Users and Fix the Secretive Trade Deal Process - Thu, 11/09/2014 - 07:33

EFF was in Washington DC this week to deliver our Fast Track petition to Senator Ron Wyden, and we've asked him to fix the secretive, Hollywood-captured process that taints current trade negotiations and leads to international agreements with draconian copyright provisions. At the time of the delivery, the petition was signed by 4,950 US users.*

Sen. Wyden has been a vocal advocate for the public to have access to the trade negotiations. One of the most notable moments was from a Senate Finance Committee hearing in 2012, where he challenged the US Trade Representative (USTR) on the secrecy that shrouds the Trans-Pacific Partnership (TPP) agreement. He even suggested, during the course of that hearing, that the text affecting Internet users' rights should be available online in real time.

Now that he's the Chair of the Senate Finance Committee, he holds the influence to introduce a new bill that could fundamentally change the process that has led to anti-user trade deals like the TPP.

That's why we need Sen. Wyden to continue to defend users' rights in Congress, by working towards more open, transparent, and participatory trade negotiations. This is the letter we delivered to Sen. Wyden's office yesterday, in which we outline some crucial fixes to the current process. Below each ask is a brief explanation for why we made that specific demand.

Dear Senator Wyden:

As constituents, consumers, and Internet users, we call on you to defend users' rights as you work to develop a new trade authority proposal. Democratic and transparent negotiating procedures are essential to protect those rights and the future of our Internet. Thus, any such proposal must include:

• Easy, ongoing access to negotiating texts by all Congress members and their staff with proper security clearance and timely public release of concluded provisions following each round of negotiations;

Sen. Wyden has been the most outspoken about the fact that Congress members have severely limited access to the text, in contrast to corporate representatives who sit on trade advisory committees. While Congress members themselves are able to view the text, they must do so in a private room. They are prohibited from taking notes or bringing their legislative aides, who are experts on those policy matters, even when they have proper security clearance. Most lawmakers are far from being fluent in the language of digital policy. So even if they can see the text it's unlikely they can make many pertinent comments, let alone identify the issues that might be the most alarming for Internet users.

We ask that Sen. Wyden require a regular publication of concluded provisions because there is simply no reason to keep such terms secret. And as we mentioned above, he even said so himself. Internet users should know what is going on in these deals so we can decide for ourselves whether those rules are acceptable. In democracies, it's the people who get to decide the rule of law—not trade bureaucrats beholden to powerful industries.

• Ongoing, up-to-date publication of detailed summaries of the USTR's specific proposals being submitted in negotiations;

We have the right to know what kind of copyright provisions the USTR is proposing in our name. Based on leaks of the TPP, as well as past international deals the USTR has struck with other nations, we have every reason to be critical about its stance on digital policies. It has been shamefully complicit with big publishers and the corporate entertainment industries to push for more extreme provisions than almost any of its negotiating partners.

• Regular publication of agendas and transcripts of meetings and of all communications between USTR officials and all stakeholders, including industry groups;

The reason why trade agreements now have such extreme, draconian copyright rules is because of the cozy relationship between the USTR and corporate interests. As public officials, they have a duty to disclose their communication with all stakeholders. This would substantially improve the transparency of the process from its earlier stages when the USTR formulates its policy objectives, and decides whose interests it will represent at the negotiating table.

• Mandatory negotiating objectives that balance users' rights with those of private industry, including requirements to enact safeguards for free speech, privacy, and access to knowledge;

The USTR sets overarching objectives for its trade agreements, and as you'd guess, they have always reiterated the "strong protection of Intellectual Property rights". There is no reason why they cannot balance those concerns and also prioritize these core rights for Internet users.

• Congressional certification that negotiating objectives have been met before negotiations are concluded with only the pacts that have been so certified qualifying for expedited consideration;

In the event the USTR does re-examine its seemingly myopic concern for Hollywood, and accordingly re-authorizes its negotiation objectives, then someone needs to hold the USTR accountable. Congress could be in the position to ensure that these negotiation objectives are met. Otherwise, there will be no chance that Congress would even vote on the trade agreement without holding full hearings and debates on the content of those deals.

• Congressional approval of trade agreement texts before they can be signed by a president so that Congress explicitly authorizes a president to enter into a pact only after ensuring that an agreement’s contents are acceptable.

Under the old, expired versions of Fast Track, presidents could sign off on a trade agreement without Congressional approval. Congress had given up its constitutionally mandated role to oversee foreign commerce, and were limited to voting up or down on a deal with barely any time to debate the contents of those agreements. Such a system violates the separation of powers of the federal government. The Executive branch—which the USTR falls under—cannot have sole authority over US trade policy.

We stand opposed to any new version of trade authority that does not include these critical guarantees of transparency, inclusiveness and accountability. Additionally, provisions in current trade negotiations must not be considered closed until these transparency and oversight mechanisms have been put in place.

If enacted, these procedural fixes would not lead to a perfect process, but it's a start. Sen. Wyden, who has been so outstanding on calling out the procedural problems in the TPP, now has the rare opportunity to make things better. We're counting on him to do that, and ensure that for the first time, users' rights take front seat in the trade policy debate.

* This number is the result of eliminated duplicates and omission of non-US signers.

Related Issues: Fair Use and Intellectual Property: Defending the BalanceInternationalTrans-Pacific Partnership Agreement
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An Open Internet Is Essential to a Free Internet: Why Net Neutrality Should Matter To Everyone - Thu, 11/09/2014 - 06:31

Right now the FCC is considering a set of rules that would allow Internet providers to offer faster access to some websites that can afford to pay.  We need to stop them.

Let’s start with the obvious: The Internet is how we communicate and how we work, learn new things, and find out where to go and how to get there. It keeps us connected to those we love and informed of political events that affect our everyday lives.

At EFF, we have fought for almost 25 years to protect a free and open Internet.  We depend on the Internet for everything we do, from our efforts to reform broken copyright laws, to our ongoing battles to end the NSA’s illegal mass surveillance.  More fundamentally, we know that the open Internet makes possible not just our activism, but the work of many others around the world.

That’s why we’re fighting tooth and nail to defend a concept known as net neutrality. Net neutrality means that Internet providers should treat all data that travels over their networks equally, rather than slowing down or even blocking access to sites of their choosing.

Good net neutrality rules would forbid Internet providers from discriminating against sites that cannot afford to pay a toll for preferential treatment, or sites that are critical of Internet providers or undermine their business models.

That threat is real. In 2005, for example, Canadian ISP Telus , blocked access to a website that was used to plan actions by the Telecommunications Workers Union during a strike. And in 2007, AT&T deleted Eddy Vedder’s criticism of George W. Bush during a webcasted Pearl Jam concert.  Although AT&T was technically acting in the capacity of a content provider, content providers and Internet providers have merged dramatically in the past few years, resulting in the lines becoming uncomfortably blurred. This sort of censorship threatens both innovation and free speech.

Fighting for the Users

Right now the entire architecture of the Internet is under threat. The FCC is about to make a decision that will determine whether or not Internet providers will be allowed to offer faster access to some websites, while leaving others in the slow-lane

We’re calling on the FCC to do the right thing and not allow for rampant discrimination online. Specifically, we’re telling the FCC that the Internet needs to be treated as part of our essential communications infrastructure, and that means regulating it as such to protect net neutrality.

Net neutrality is central to all of our efforts to protect and defend digital rights. Let’s go through a handful of EFF’s issues to explain how.

The Risk to Privacy Conscious Services

Without net neutrality, Internet providers may interfere with access to privacy protecting services and websites or encrypted traffic. We have the right to encrypt our communications because privacy is a human right and it’s protected in the US Constitution. Yet, in the past we saw Comcast blocking encrypted traffic to BitTorrent. And in Canada, the broadband provider Rogers Hi-Speed Internet blocked and throttled all encrypted file transfers over their network for five years.

Use of encrypted browsing prevents Internet providers from injecting ads into the pages you view and prevents them from logging your activities to sell to marketers, so they have an economic incentive to keep it easy to spy on you. Without net neutrality, there’s no telling what privacy-enabling tools will become unusable at the whim of Internet providers.

An increasing trend in privacy-conscious products is the move to technologies where sensitive data is self hosted, hosted by friends, or resides on an anonymous decentralized network instead of on the servers of a company that law enforcement can easily compel to turn over your data without telling you first.

But many ISPs have rules against people running "servers" at home, prohibiting people from making use of the upstream bandwidth they've paid for. If all bits were treated equally, then it wouldn’t matter whether the traffic originated with a server. In other words, if users pay for their bandwidth, then they should be able to use it however they want.

Without good net neutrality protections, we fear that privacy conscious services will be significantly affected, not only because small companies and free software communities most likely won’t be able to afford fast-lane access, but also because Internet providers may degrade such services for their own business reasons.

Copyright Policing from Internet Providers

Copyright is routinely cited as an excuse for corporate and government censorship of the Internet. When Comcast blocked all encrypted traffic to BitTorrent back in 2007, they claimed it was because BitTorrent was used for copyright infringement – never mind the many non-infringing uses that were also blocked. Good net neutrality rules would prevent that kind of policing from ISPs, as well as unilateral decisions by ISPs to degrade or block access to sites they allege are infringing or promote infringement.

This is a particular concern as more Internet providers expand into content production and distribution. Network discrimination could be used to herd users towards services the ISPs offer, like Verizon’s RedBox, rather than their competitors. Again, good net neutrality rules would not allow Internet providers to direct users to one site over another by speeding up or slowing down online traffic.

Copyright has caused problems for net neutrality before. We’ve seen bad net neutrality rules with giant holes carved out for ISPs to discriminate based on copyright infringement, such as the 2010 Open Internet order. Carve-outs for copyright are antithetical to the principles of net neutrality, and we’re calling on the FCC to create application agnostic, bright line anti-discrimination rules.

Access to Information

Transparency can be a powerful tool. One of our core visions for a more transparent political environment is for government data, court documents and interpretations of the law to be readily accessible online. Access to the law shouldn’t be slower than, say, viewing an entertainment website. But without strong net neutrality rules, Internet providers are likely to offer faster access to some websites while impeding our access to information.

The Future of Our Internet

The open Internet is central to projects of social justice and political change. Our democracy cannot afford network discrimination. Money and the whims of Internet providers shouldn’t determine who is able to speak to whom and at what rate.

Join us as we call on the FCC to do the right thing: treat all traffic that travels over the Internet equally. The Internet is our future. It’s how we communicate, innovate, and organize to better our world. Take action now, before it’s too late.

Visit to submit your comments to the FCC before the September 15th deadline. It’s our Internet, and we’re going to fight to protect it.

Related Issues: File SharingFree SpeechInnovationNet NeutralitySurveillance and Human RightsNSA Spying
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More Than 70 Public Interest Organizations and Companies Urge Congress to Update Email Privacy Law - Thu, 11/09/2014 - 05:43

EFF, along with more than 70 civil liberties organizations, public interest groups, and companies sent two letters to the House and Senate leadership today. One supported HR 1852, the bipartisan Email Privacy Act, and the other supported Senate companion bill S. 607, the Electronic Communications Privacy Act Amendments Act of 2013 (.pdf). The bills aim to update the Electronic Communications Privacy Act (ECPA), an archaic law that's been used by the government to obtain emails without getting a probable cause warrant. The bills are sponsored by a wide range of lawmakers like Senators Patrick Leahy and Mike Lee, and Representatives Kevin Yoder, Tom Graves, and Jared Polis.

The letters are part of a larger push from the Digital Due Process Coalition to pass the two bills. The Email Privacy Act in the House has over 260 cosponsors, while the Senate bill is ready for a final vote. Both bills will codify the precedent set by the Sixth Circuit, which ruled in US v. Warshak that users have a reasonable expectation of privacy in their email. The bills ensure the government must obtain a warrant in all contexts before it looks at your private online messages.

The coalition letters urge congressional leaders to set a vote on both bills. The letters also encourage passing the bills since they

would  eliminate  outdated  discrepancies  between  the  legal process for  government  access  to  data  stored  locally  in  one’s  home  or  office  and  the  process  for  the  same  data  stored  with  third  parties in  the  Internet  “cloud.”

Signers include the American Civil Liberties Union, Microsoft, Google, Rackspace, Dropbox, Freedomworks, Apple, the Electronic Frontier Foundation, and others.

Join us now in helping push the bills forward by emailing your lawmaker and telling them to cosponsor the bills!

Related Issues: PrivacyLocational Privacy
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Senators and Other Experts to Appeals Court: NSA's Phone Records Program Is a Massive Invasion of Privacy - Wed, 10/09/2014 - 22:38

Smith v. Obama, a challenge to the NSA’s warrantless collection of phone records, currently before the Ninth Circuit Court of Appeals, has received some high-profile support. In six amicus briefs filed yesterday, a range of groups add depth to our argument that the NSA’s activities are an extraordinary invasion of the privacy of innocent Americans.

Powerfully, Senators Ron Wyden, Mark Udall, and Martin Heinrich—members of the committee charged with overseeing the NSA—write that they “have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through means that caused far less harm to the privacy interests of millions of Americans.” This echoes statements made by numerous officials, including President Obama himself, and it is crucial to countering the arguments in this case about the national security importance of the NSA’s program.

Other briefs expand on the problems with the government’s legal arguments in Smith and discuss how bulk surveillance causes specific harms to privacy and other constitutional values. In a brief filed by the Electronic Privacy Information Center (EPIC), a group of leading legal and technical experts discuss the history of information generated by telephone calls and the rise of modern call records, the “metadata” collected by the NSA. The brief thoroughly debunks the government’s claims that forty-year-old legal rules allowing limited collection of records can justify the highly revealing program at issue here. Briefs by the Reporters Committee for the Freedom of the Press, the National Association of Criminal Defense Lawyers and the PEN American Center respectively explore the specific harms to reporter-source relationships, attorney-client communications and the Sixth Amendment right to counsel, and the profound chilling effect on freedom of expression. Finally, a brief by the Center for National Security Studies explains that the statute used by the government, Section 215 of the USA PATRIOT Act, also cannot justify this program.

The court will consider these arguments as the briefing in Smith continues. A hearing is expected in November 2014.

Related Cases: Smith v. Obama
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Fair Use FTW! Fox Copyright Claim Fails to Suppress TVEyes’ Media Monitoring Service - Wed, 10/09/2014 - 09:32

In a fantastic victory for fair use and common sense, a federal court has rejected Fox’s effort to use copyright and the largely moribund “hot news” doctrine to shut down a video “clipping” service, TVEyes. TVeyes creates a searchable database of TV and radio station broadcasts. Subscribers can search the database and view a portion of the original broadcast in which their search terms appear. The database enables research, commentary, and criticism that would otherwise be impossible for many of its users.

In July of 2013, Fox News sued TVEyes for copyright infringement and “hot news misappropriation.” Despite ample evidence that customers were using TVEyes’ service for protected purposes such as analysis and criticism, and that it did not substitute for any real Fox content, Fox insisted that customers might abuse TVeyes to view Fox News without authorization, in ten minute increments. 

Fortunately, the law is on TVEyes’ side, thanks in part to the Second Circuit’s decision in Authors Guild v. HathiTrust. In that case, as in this one, courts have recognized the importance of enabling fair uses by downstream users. TVEyes’ copying and making available of all of Fox News’ broadcast content was integral to its purpose of creating a complete and useful database of such information.

The court also declined Fox’s invitation to resuscitate and enlarge the doctrine of “hot news misappropriation,” a theory of liability that has long been out of favor with most courts because it creates a quasi-property right over newsworthy facts, something that is obviously in tension with the First Amendment. The court correctly found that the hot news doctrine could not apply here because TVEyes was not passing off Fox’s content as its own. Without that element of free-riding, TVEyes’ copying of information was governed exclusively by copyright law, rather than state law of misappropriation.

The court did not throw the case out altogether. The court decided it needed more evidence regarding whether certain additional features on TVEyes’ service for saving, sharing, and searching the content undermine its fair use claim. In the one troubling part of an otherwise sterling decision, the court concludes that:

“While the evidence shows that this feature [search by date and time] does not pose any threat of market harm to Fox News, the record fails to show that it is crucial or integral to TVEyes’ transformative purpose.”

This sets the bar too high. A defendant doesn’t have to establish that every element of its use is “crucial” to its appropriate purpose, especially if there is no threat of harm. Offering a different mode of search seems clearly relevant to legitimate purposes such as research, and courts should provide breathing room to exercise First Amendment rights like fair use, rather than second-guessing whether every element was “crucial” to the user’s purpose or message.

On balance, however, this is a great decision. Once again, fair use helps shelter free speech and access to knowledge in the face of maximalist copyright claims.

Files:  tveyes_sj_opinion.pdfRelated Issues: Fair Use and Intellectual Property: Defending the BalanceDigital VideoRelated Cases: Barclays v TheFlyOnTheWall.comAuthors Guild v. HathiTrust
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Towards an Internet Nation? - Wed, 10/09/2014 - 08:09

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

These are the opening words of the Declaration of Independence of Cyberspace, written by EFF co-founder and board member, John Perry Barlow almost two decades ago. The document is more of a visionary dream than a political program, and doesn't shape EFF's policy on a day to day level (indeed, Barlow himself has said that he would write it differently today). Yet it continues to resonate strongly for many.

The Declaration featured in a closing address by Professor Milton Mueller of Syracuse University delivered at this year's Internet Governance Forum (IGF), which wound up last week in Istanbul, Turkey. "Clearly," Mueller asserted, "the Internet provides the basis for a community with its own interests, an incipient identity, its own norms and modes of living together. And it is only a small step from community to nation." Addressing an assemblage of government ministers, industry heads and users from around the world, Mueller suggested, "maybe John Perry Barlow's Declaration of the Independence of Cyberspace is worth a second look."

Across the world, others are also thoroughly dissatisfied with the current state of Internet governance—yes, even with the IGF itself. Although often praised by insiders as being a useful discussion forum where public and private stakeholders can broaden their knowledge of Internet policy issues and their appreciation of other points of view, the tangible results of this knowledge exchange have been thin on the ground.

The result has been a recent flourishing of independent Internet governance initiatives, all presented with the earnest disclaimer that they do not intend to duplicate the IGF—but which nevertheless address areas well within the scope of the IGF's original mandate. These include an independent global meeting called NETmundial this April, not one but two global expert panels, an initiative of the World Economic Forum, and alongside the IGF meeting in Istanbul the Internet Ungovernance Forum (IUF), which EFF supported.

One of the motivations behind the organization of this inaugural IUF is that the policy of the United Nations—with which the IGF remains linked—has been interpreted as preventing Forum participants from "naming and shaming" particular countries over human rights abuses, and proposals for workshops at this year's IGF that would focus on the host country, Turkey, were refused by organizers on this basis. With no other space to voice their concerns about pervasive censorship and curtailment of freedom of expression in Turkey, participants were essentially forced into holding an independent event.

Speaking at the IUF, Web activist Harry Halpin explained the need for an alternative event with the claim that "discussions at the IGF are exclusionary". None other than Julian Assange, appearing by video link at the event, went still further, claiming that the IGF, in its support of the powerful, was really functioning as an "Internet Censorship Forum". Whilst this might sound like hyperbole, the IGF's structure has shown a low tolerance for dissent, with a record of removing posters on Chinese censorship at the 2009 meeting in Egypt and excluding host country activists as at the 2012 meeting in Azerbaijan.

Others find the IGF's most serious deficits not in the discussions that it excludes, but in the fact that the discussions it does facilitate do not go anywhere. The IGF has yet to develop the capacity to issue any non-binding principles or recommendations that could guide other actors and institutions, in the same way that governmental bodies such as the United Nations Human Rights Council do.

Mueller's thesis —not so far from Barlow's—is that we ought not to have to rely on such government-led bodies to lay down principles for the global Internet, but that the future lies in the Internet developing its own capacity for self-governance, through a loose network of bodies in which all stakeholders, whether public and private, participate on an equal footing. For some, the appeal of the IGF lies in its potential, currently unrealized, to act as a hub of such a network.

These are subversive ideas, to be sure—and we need to think about them carefully, whilst also thinking through the implications of their alternatives. EFF generally focus less of our time and attention on the evolution of institutional Internet governance, and more on fighting for substantive rights and freedoms through the structures that we already have. But this is not the same as to accept that existing governance structures are perfect, or that rights and freedoms on the global Internet might yet be best safeguarded by new models which did not directly proceed from the affairs and interests of nation states. As John Perry Barlow presciently wrote:

We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.

Related Issues: InternationalInternet Governance Forum
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From reddit to Pornhub, Websites Slow Down for Net Neutrality on September 10 - Wed, 10/09/2014 - 07:39

You know the net neutrality conversation is breaking new ground when even the porn sites are weighing in. And that's just what we're seeing: Major adult platforms Pornhub and Redtube are joining an online protest on September 10, calling for stronger protections for net neutrality. They’re teaming up with dozens of digital rights organizations, including EFF, Demand Progress, and Fight for the Future, as well as other Internet companies like Etsy, reddit and Mozilla, in a digital day of action designed to bring the net neutrality debate to hundreds of thousands of Internet users worldwide.

Net neutrality— the idea that Internet service providers (ISPs) should treat all data that travels over their networks equally—got major attention this Spring when the FCC released proposed regulatory guidelines that left Internet users and companies alike deeply concerned. The proposal included new language giving ISPs leeway to create a “fast lane” for certain websites (i.e. websites with deep pockets that were willing to shell out more money for faster access to users).

But you can’t have a fast lane without also having a slower lane. And that means everyday websites—including journalistic websites and start-up companies that could compete with established web services—could be slow to load, even as our expectations for loading speed leap ahead in the coming years.

That’s why the protest on September 10 will showcase a slow-lane Internet, by putting graphics of “page loading” warnings on participating sites. (Don’t worry—Pornhub promises it won’t actually load pages more slowly.)

For months, the FCC has been collecting comments from the public about its proposed net neutrality guidelines, and hundreds of thousands of people have already spoken out.  But we’re fast approaching the deadline for public engagement through the rulemaking process: September 15 is the end of the public comment period.

That’s why the day of action on September 10 is so important—it’s our last big push to get the general public to speak out about net neutrality before the deadline.

We’ve already made a huge impact. The Sunlight Foundation recently analyzed over 800,000 comments submitted to the FCC about net neutrality– and found that more than 99% of them supported stronger protections for neutrality. The September 10 day of action will help rally people from across the web to speak out, and help create such a ruckus that the FCC cannot ignore our call to amend its proposed rules—and force Congress to take note as well.

How You Can Join

On September 10, we’ll have a custom banner on EFF’s website.

It’ll look like this, and link to our site where you can submit comments to the FCC:

If you run a website, embed the code here to show your support:

<script type="text/javascript">
    var _bftn_options = { animation: 'banner', theme: 'dark' }
<script src=""     async></script>

Another great way to spread the word is through social media. Please consider tweeting and posting about net neutrality both in the lead up to September 10 and on the day of action.
Want to read more about this issue? We’ve got a ton of blog posts that can help get you up to speed.  

Related Issues: Net Neutrality
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Coursera Takes a Positive Step Forward in Cuba and Sudan - Tue, 09/09/2014 - 00:37

Back in June, we urged companies offering educational or communications tools to apply for licenses to make their products available in Sudan. Last week, we were thrilled to learn that Coursera—an online educational course provider that Sudanese activists have told us is "in great demand"—successfully applied for and was granted a license from the Office of Foreign Assets Control (OFAC) granting them permission to offer courses in Sudan and Cuba.

While EFF is critical of the piecemeal approach undertaken by the U.S. government in updating sanctions provisions to allow for greater access to technology, we can't ignore the fact that the licensing process often provides more immediate relief to individuals and organizations in sanctioned countries like Sudan. The positive response from Sudanese online has been palpable, despite the fact that certain courses in science, technology, engineering and math remain inaccessible. In a country where even universities are turning to online courses as a supplement, the impact of Coursera's decision cannot be underestimated.

We commend Coursera for taking initiative and urge other companies to do the same.

Related Issues: International
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Two Privacy Bills Move as Congress Returns From Vacation - Fri, 05/09/2014 - 08:13

After all its hard work this year Congress is almost done with its summer recess. Lawmakers are due back Sept. 8 and have much to tackle. Two bills are of paramount importance to EFF: one—the USA FREEDOM Act—must be passed by Congress, while the other—the Cybersecurity Information Sharing Act (CISA)—must be killed.

The USA FREEDOM Act is a good first step to rein in the NSA's "Business Records" program, which collects Americans' calling records using Section 215 of the Patriot Act. Since July, we've urged people to contact their senators to cosponsor the bill. We've even created a scorecard to help you figure out where your member of Congress stands.

On the other side is CISA, a privacy-invasive cybersecurity bill written by the Senate Intelligence Committee to facilitate the sharing of computer threats between companies and the government. The bill grants companies broad legal immunity to spy on users and share their information with government agencies like the NSA. This zombie bill—just like previous cybersecurity bills—must be killed.

One Step Forward and Two Steps Back

The USA FREEDOM Act is an important step forward for privacy. First, it would stop the government from sending court orders to phone companies for all of their customers' calling records. The bill also introduces much needed institutional changes to the secretive court overseeing the spying called the Foreign Intelligence Surveillance Court (FISA court). Lastly, the bill introduces transparency requirements by mandating the government report on the number of orders obtained by the FISA court and by allowing companies to report on the number of orders they receive. There are still problems with the bill, but it's an important piece of legislation that starts to solve some of the problems revealed by the Edward Snowden disclosures.

Unfortunately, Senator Feinstein's Cybersecurity Act, if passed, would take us two steps backward. Every year, "information sharing" bills are introduced in Congress and every year they fail due to broad immunity clauses for companies, vague definitions, and aggressive spying powers. The current Cybersecurity Act is the fourth time in four years that Congress has tried to pass “information sharing” legislation.

The current version of CISA neglects much of what we've learned from Edward Snowden, such as how information obtained using Section 702 of the Foreign Intelligence Surveillance Act is used for cybersecurity. The bill also suffers from some of the same exact faults as previous bills, which includes overly broad legal immunity for companies to share personal information with the government and with other private companies.

Congress Must Kill CISA and Pass USA FREEDOM

Both bills deal with important privacy issues, but are on completely opposite sides of the debate. Congress can do the right thing by pushing forward with the USA FREEDOM Act and passing much needed NSA reform. Tweet your Senator to support the USA FREEDOM Act. After that, send them an email asking them to not support CISA.

Related Issues: PrivacyCyber Security LegislationNSA Spying
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EFF to PCLOB: Inform the Public About the President's Executive Order 12333 Spying - Fri, 05/09/2014 - 08:06

EFF, joined by Access, filed public comments last week urging the Privacy and Civil Liberties Oversight Board (PCLOB) to tackle the unknown spying activities occurring under Executive Order 12333 (EO 12333). The Executive Order is supposed to protect Americans from presidentially-directed spying; however, despite the protections, EO 12333 is being used for mass spying that collects Americans' communications, address books, and other information.

The letter urges the PCLOB to expand its investigation into EO 12333 and

explore the entire scope of surveillance conducted thereunder, the entire gamut of policies overseeing such collection, and what reforms could be implemented to narrow this authority.

The comments also touch on other topics including the impact of Presidential Policy Directive 28, the efficacy of the surveillance programs, the US government's severe overclassification problem, and the US government's failure to fully implement the International Principles on the Application of Human Rights to Communications Surveillance.

In a separate filing, we also talked about the problems with Suspicious Activity Reporting (SAR) as a functional standard for information sharing between law enforcement agencies. We urged the board to thoroughly examine the standards that govern SAR and the way in which these standards have been applied.

The PCLOB plays an important role in informing the public about intelligence and law enforcement activities, and we hope it continues to offer highly detailed public reports. The comments come due just as Congress ends its summer vacation and has a chance to advance an NSA reform bill called the USA FREEDOM Act. Tell your Senator now to cosponsor the bill by tweeting at them, sending them an email, or even setting up an in-district meeting.

Related Issues: PrivacyNSA Spying
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Militarization, Surveillance, and Profit: How Grassroots Groups are Fighting Urban Shield - Thu, 04/09/2014 - 08:55

While all eyes are on the disturbing evidence of police militarization in Ferguson, are you paying attention to what’s happening with law enforcement in your own back yard?

In the San Francisco Bay Area, the answer is yes. A coalition of community groups has come together to call attention to Urban Shield, a four-day long “preparedness” exercise for law enforcement and other agencies that will take place from September 4-8.  They’ve organized a week of education, including a march and demonstration outside of the event on Friday, September 5. To these community groups, Urban Shield represents state violence and political repression, not public safety.

The reasons for protesting Urban Shield are clear. It is one of the ways that local law enforcement gets access to, and romanced by, military and surveillance technologies like the ones we've seen turned against protesters in Ferguson, as well as low-level crimes, across the country.

Urban Shield is coordinated by the for-profit company Cytel Group, and in addition to training exercises, it also functions as a marketplace and testing site for new militarized technologies. The accompanying trade show includes exhibitors from armored vehicle manufacturers to a “counter-terrorism magazine.” In 2013, companies were encouraged “to place their products and technology directly into the hands of SWAT, Fire, EOD, and EMS professionals.” Vending at Urban Shield is touted as a way to get “invaluable real-time feedback for vendor product[s]” since “at the end of every scenario the teams are questioned concerning the benefits and drawbacks of each piece of technology used in that scenario.” It’s unsurprising that Urban Shield has a "try it out" component for law enforcement, since there is an incredible amount of profit to be made from such products, often with federal funds (i.e. taxpayer dollars) footing the bill.

The event is part of the federal Urban Areas Security Initiative (UASI). UASI is a grant program administered by the federal Department of Homeland Security’s Homeland Security Grant Program (the same program that funds fusion centers). In the San Francisco Bay Area, the grants are coordinated by the Bay Area UASI, a regional coordinating body. UASI grants are supposed to go to “planning, organization, equipment, training, and exercise needs of high-threat, high-density Urban Areas.” The grants have gone to law enforcement agencies all over the country— but the program has been the subject of scathing critique from grassroots groups and lawmakers.

Much of the criticism around UASI is that the grants enable purchases of equipment that no community should adopt without a public conversation. The obvious examples are armored vehicles and so-called “less-lethal” weapons like tear gas and rubber bullets, like those used to violently suppress demonstrators in Ferguson. But UASI funds can also be used to purchase sophisticated surveillance equipment that, absent safeguards, could allow local law enforcement to spy on activists before demonstrations ever take place, or to racially profile people of color in communities like Oakland. Senator Tom Coburn’s 2012 report “Safety at Any Price” lists some of the equipment that has been purchased with UASI money, and it reads like a laundry list of privacy advocates’ concerns: surveillance cameras, mobile fingerprinting devices, automated license plate readers, armored vehicles, and drones. To make matters worse, as Senator Coburn's report points out, there is no evidence that these purchases make anyone safer.

It should also be noted that Urban Shield is not limited to the San Francisco area. Boston and Austin also participate in similar trainings, as has Jordan. And Jordan isn’t the only international connection. As the Urban Shield website boasts, “In 2014, teams from Singapore and South Korea will participate.” Teams in the past have included the French National Police and teams from Israel, Brazil, Jordan, and Bahrain. Police departments from across the country participate as well, including SWAT teams from Newark, Dallas, Chicago, and Travis County, Texas.

None of this has escaped the attention of organizers, who have made it clear that Urban Shield is linked to surveillance of activists and violence against communities of color across the country, but also to political repression internationally. In their words: “The line between police and military is blurring as parallel military tactics are being deployed globally to repress dissent and increase state control over people who are calling for freedom and justice.”

Related Issues: Mass Surveillance TechnologiesSurveillance DronesStudent and Community Organizing
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Newly Revealed NSA Program ICREACH Extends the NSA's Reach Even Further - Thu, 04/09/2014 - 06:46

­Turns out, the DEA and FBI may know what medical conditions you have, whether you are having an affair, where you were last night, and more—all without any knowing that you have ever broken a law.

That’s because the DEA and FBI, as part of over 1000 analysts at 23 U.S. intelligence agencies, have the ability to peer over the NSA’s shoulder and see much of the NSA’s metadata with ICREACH. Metadata is transactional data about communications, such as numbers dialed, email addresses sent to, and duration of phone calls, and it can be incredibly revealing. ICREACH, exposed by a release of Snowden documents in The Intercept, is a system that enables sharing of metadata by “provid[ing] analysts with the ability to perform a one-stop search of information from a wide variety of separate databases.” It’s the latest in a string of documents that demonstrate how little the intelligence community distinguishes between counter-terrorism and ordinary crime—and just how close to home surveillance may really be.

The documents describe ICREACH as a “one-stop shopping tool for consolidated communications metadata analytic needs.” ICREACH brings together various databases with a single search query, allowing analysts to search literally billions of records. The tool allows sharing of “more than 30 different kinds of metadata on emails, phone calls, faxes, internet chats, and text messages, as well as location information collected from cellphones.” It is intended to include data from Five Eyes partners as well. While the program shares data obtained under Executive Order 12333, it includes data from U.S. persons.

ICREACH grew out of CRISSCROSS and PROTON, older tools that allowed the CIA, DEA, FBI, DIA, and NSA to share metadata. Metadata sharing in CRISSCROSS started with only date, time, duration, calling number, and called number. PROTON, which expanded CRISSCROSS, allowed sharing of far more information, including latitude and longitude coordinates, email headers, and travel records like flight numbers. The system had compatibility issues, and NSA never added the additional information PROTON could handle. PROTON also appears to have the capacity for sophisticated data analysis: “PROTON tools find other entities that behave in a similar manner to a specific target.”

While data sharing may seem innocuous, and perhaps even necessary, the melding of domestic law enforcement and national security agencies deserves far more attention. The blending of the war on drugs and the war on terror, and domestic and international law enforcement, and the move from targeted to mass, suspicionless surveillance, is leading to a place where everyone is a suspect and can be targeted at any time.

As The Intercept article pointed out, one serious concern is that data obtained through ICREACH could be used for parallel construction— the practice through which the DEA obscures the source of tips it receives from the NSA and then passes on to other law enforcement agencies. The DEA will “recreate” investigative trails,  and hide the source of the information from defense lawyers, judges, and prosecutors. With parallel construction, NSA data can be used in ordinary criminal investigations, without any way to challenge the collection of that data in court. This runs blatantly counter to notions of due process and the right to a fair trial, to question and confront witnesses, and have competent counsel.

The ICREACH system makes it even easier for law enforcement to use communications data collected by NSA without revealing the source. While domestic law enforcement agencies can already get some of the kinds of data in ICREACH without a warrant, they at least have to serve a subpoena or national security letter on a telecommunications provider. A subpoena requires court approval, and either type of process can be challenged in court. Instead, with ICREACH, any approved analyst at a partner agency can access the data in secret with just a few keystrokes, and with little possibility of judicial review.

That data could then be used in a variety of ways, without revealing the NSA as the original source of the information. With a traffic stop or anonymous informant as pretext, domestic law enforcement could initiate an investigation, conduct physical searches, visit targets, and more.

Even more disturbing: the cops on your block may be getting ICREACH data passed on to them. The information sharing movement goes beyond just big federal agencies. There are myriad channels through which state and local law enforcement agencies can get the information agencies like the FBI and DHS have. The FBI works directly with local law enforcement through Joint Terrorism Task Forces (JTTFs). Through JTTF memoranda of understanding, officers from police departments across the country work directly under the FBI’s command and agree not to talk about the work they do. Similarly, local agencies and federal agencies share intelligence information through fusion centers, where local law enforcement can access DHS and FBI databases, among others.   

The Constitution was intended to constrain the government’s investigative authority. The national security state has created a gaping hole in those protections. Although the government has argued that it has bent the rules around surveillance only in the name of national security, the lines of what is appropriate information to share between various agencies continue to get blurrier. Without some safeguards, the same surveillance architecture that targets “terrorists” can be used to target everyday lawbreakers.

The rallying cry from law enforcement is always the need to catch criminals. But constitutional constraints like no unreasonable searches and seizures and the right to the assistance of counsel exist specifically because of the societal agreement that the need to curb government abuse is worth occasionally letting a guilty person go.

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Host a Screening and Discussion About The Internet’s Own Boy - Thu, 04/09/2014 - 06:15

If you’ve haven’t had a chance to see the incredible documentary The Internet’s Own Boy, then go do that as soon as possible. It’s wonderful. And if you have seen it, encourage your friends to watch it too.  

One of the best things you can do after seeing the film is organize a screening for your community. To help, we made some tips on how to host a successful viewing party and put together some questions to help guide a thoughtful discussion after the film.

You can download and print the discussion questions below to take with you to the screening. We also have a template email sign-up sheet to help you jumpstart a local mailing list of people in your community who want to engage deeper in the movement to defend our digital rights.

Organize a Successful Screening

Organizing a viewing party for The Internet’s Own Boy boils down to finding a date and a space with the proper projection equipment and doing outreach.

Decide if you’d like to have an open discussion afterwards with everyone, or a more organized event, such as a panel discussion featuring local activists and experts that can delve deeper into the issues discussed in the film. Some ideas for speakers include local professors, librarians, or digital rights activists in your community. Feel free to email if you’d like help finding good speakers in your area.

For whatever you decide, here’s a short checklist of everything you’ll want to make sure to have squared away before promoting the event:

  • Venue: Is it the proper size for the expected crowd?
  • Screening equipment:  Is there a projector, the proper cables and a sound system? If needed, are there microphones?
  • Seating: Be sure that there are enough chairs or places for people to lounge.
  • Timing: Find a date and time that will be most likely to accommodate the most people.

Next you’ll want to think about promotion. If it’s a larger, public event, consider submitting a listing to your local weekly paper and getting on their calendar. You may also want to get on the calendar for your community or college radio station. Make flyers, post them around town, and be sure to promote heavily on social media. Event pages on social media sites are often very useful.

There might also be some local mailing lists or community leaders who can share the event with their crew.

Materials for Your Screening

You’ll most likely want a number of promotional materials, like images and graphics to share online. Printing some physical flyers and posters might also be helpful. The Internet Archive has thumbnail images from the film that you can use to create flyers.

Also, don’t forget to have an email sign-up sheet. After the screening, you can use it to start a mailing list to share news and organize future digital rights events and actions.

Many may wish for some informational resources to get a better grasp of the issues discussed in the film. Here’s a list to links of one-pagers you can have on-hand and printed.

  • The Computer Fraud and Abuse Act (PDF)
  • Demand Open Access to Research (PDF)
  • End the NSA’s Illegal Spying (PDF)
  • Coders’ Rights Project (PDF)

Discussion Questions

The Internet’s Own Boy raises many important questions on topics that may be new to some viewers. Whether you’re watching this in a classroom or in a community setting, these questions can help to guide a discussion after the film. We recommend reading our explanation of some of the issues raised in the film before leading a discussion.

Creative Commons:

  • Has anyone in the room used or reused a creative work without knowing the copyright?
  • What would an Internet without homemade music videos and memes made from screenshots be like? What if everyone always had to ask for permission first?
  • Does fair use of creative works really make it impossible for the creators of those works to make a living? Who actually makes money off of copyright?

Open Access and Open Government:

  • Does anyone have a story to share about trying to access resources that are supposed to be a matter of public record, like court documents?
  • How are some communities disproportionally affected by policies that close access to information?

Stopping SOPA:

  • Anyone remember the Stop Online Privacy Act (SOPA) or what it was like to see a website blacked out? What lessons did the Stop SOPA campaign teach us?
  • What is the relationship between copyright and censorship?

The Computer Fraud and Abuse Act (CFAA):

  • According to the government, it is illegal under the CFAA to violate a website’s terms of service. Does knowing this mean that any of us will start to read the terms of service?
  • Does knowing that there are such outdated and misused laws on the books have a chilling effect on your likelihood to share information?

Next steps:

  • Does your university have an open access policy? Are you an artist who is going to start using Creative Commons?
  • What are your concerns about the future of the Internet? Are you ready to get involved in a digital campaign or contact your elected officials about your concerns?
  • If you want to get involved, but have reservations as to what to do next, what are those? What can we do to continue to raise awareness about these issues?
  • How will you keep learning about fair use and copyright, unjust computer crime laws, open access, and other digital rights issues?

Follow up!

Be sure to collect email addresses of everyone who came to the event and follow up by inviting them to join a mailing list. Check back frequently on to learn about our many campaigns and ways to get involved in the fight to protect our digital rights.





Related Issues: SOPA/PIPA: Internet Blacklist LegislationOpen AccessComputer Fraud And Abuse Act ReformStudent and Community Organizing
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Anna Smith Tells the Ninth Circuit: “NSA Spying is Unconstitutional.” Appeals Court to Consider Mass Telephone Records Collection - Thu, 04/09/2014 - 05:24

The NSA’s mass collection of telephone call detail records violates the Fourth Amendment, Anna Smith, the plaintiff in Smith v. Obama, told the Ninth Circuit yesterday, in the third challenge to the so-called section 215 program to reach a court of appeals. The opening brief concludes: “The surveillance imposed on Americans by the call-records program is anathema to this country’s constitutional tradition, and the privacy intrusions the program works are unprecedented in our history.”

Mrs. Smith filed her lawsuit in Idaho federal court on June 12, 2013, after The Guardian published irrefutable proof that the NSA is collecting telephone records of millions of innocent Americans, purportedly under the authority of section 215 of the USA PATRIOT Act. Reluctantly, the district court dismissed her claims on June 6, 2014, explaining that it felt  “constrained” because of a 1979 case, Smith v. Maryland, involving the recording of the phone numbers dialed by a criminal suspect over the course of a few days.

Mrs. Smith has appealed to the Ninth Circuit, and her original counsel, Peter J. Smith and Luke Malek, were joined by EFF, the ACLU and the ACLU of Idaho.

"The opening brief presents a clear argument as to why the daily collection of a record of who Anna calls, who calls Anna, and how long she talks violates a reasonable expectation of privacy,” said Peter Smith. “Anna is grateful for the hard work that EFF and ACLU are doing to protect her constitutional rights."

The brief urges the Ninth Circuit to reject Smith v. Maryland as controlling precedent for the NSA’s mass collection of Americans’ telephone records given the tremendous differences between that thirty-five year old case and the government’s current practices. It notes that here, unlike Smith and similar cases, the government is collecting masses of data about the millions of people who use telephones rather than collecting targeted information about a single person suspected of criminal activity. The government collects this data about people like Ms. Smith, who has never been suspected of criminal or terrorist activity, over many years rather than just a few days. The government then aggregates that data to give a much more invasive picture of both individuals and groups.

The brief also notes that the Supreme Court has just confirmed in Riley v. California that analog-era precedents, such as those involving primitive pen registers in Smith, should not be mechanically applied to digital-era surveillance. This is especially true where, as in the searches of cellphones at issue in Riley, the consequences of government access are so much more invasive—allowing the government to tell when people are awake and asleep, when and how often they talk to clergy, doctors, lawyers, family, political contacts and lovers. As the brief explains, “The National Security Agency’s call-records program bears no resemblance to the targeted and narrowly circumscribed surveillance that the Supreme Court upheld in Smith. Indeed, the idea that Smith tacitly authorized the government permanently to impose a system of pervasive and intrusive surveillance on hundreds of millions of innocent Americans is beyond untenable.”

The government’s opposition is to be filed by October 2, 2014. A hearing is anticipated for November 2014.  The Second Circuit heard oral argument in the ACLU’s other challenge to the telephone records collection, ACLU v. Clapper, on September 2, 2014, and the D.C. Circuit has set hearing in the third case, Klayman v. Obama, for November 4, 2014. 

Related Cases: Smith v. Obama
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Secrecy Trumps Public Debate in New Ruling On LA's License Plate Readers - Thu, 04/09/2014 - 02:07

Co-Authored with Peter Bibring, Senior Staff Attorney at the ACLU Foundation of Southern California

In a ruling that will harm the public’s ability to engage in an informed debate over the use of automated license plate readers (ALPR) in California, a judge late last week rejected EFF and the ACLU Foundation of Southern California’s argument that the Los Angeles Police Department and Los Angeles County Sheriff’s Department should hand over a week's worth of license plate data.

But the ruling isn’t what you might think—the court didn’t decide that location information is too private and too sensitive to release to the public. Instead, the court held that the ALPR data qualifies as the kind of investigative record police can keep secret and that the harm to law enforcement investigations from disclosing data outweighs the value to the public of seeing what data police collect on them.  If you think that sounds like a big, blank check to California police to build surveillance programs outside of public scrutiny, you’re right.

What We Know about ALPRs

LAPD and LASD’s ALPR cameras are mounted on squad cars and at fixed locations around the region. They automatically record not just the license plate of every vehicle that passes, but also its time, date and location and a photograph of the car when its plate was scanned. These systems can collect data on hundreds of plates per minute and create a detailed picture of the comings and goings of everyday people.

LAPD and LASD admitted at our court hearing that they collect—combined and on average—data on nearly 3 million cars per week. This amounts to nearly half of all vehicles registered in Los Angeles. The agencies store this data for anywhere from two to five years—whether or not the plates are ever linked to a crime—and share it with nearly 30 other law enforcement agencies around the region. Because the data includes location information, it can become very revealing over time. It can show not only where you live and work, but also your political and religious beliefs, your social and sexual habits, your visits to the doctor, and your associations with others.

The ACLU has reported that only about .2% of plates scanned by ALPR systems are ever linked to any wrongdoing, and only 3% of those (3 out of every 50,000 plates scanned) are linked to crimes other than licensing or emissions violations. But the LA agencies claimed in court that every one of these records was part of a vast investigation into stolen vehicles and other crimes and could not be disclosed to the public—even with redactions in place to protect drivers’ privacy. Unfortunately, the court agreed.

Everyone is Under Investigation, Always.

We think drivers would be surprised to learn that they are under investigation every time they drive in public. Most people think of an “investigation” as being targeted in some way—looking for the culprit in a specific crime and focusing on a particular person or group of people police have reason to think might be involved in criminal activity. An “investigation” doesn’t usually involve collecting facts on every single person police can contact.  In fact, the Fourth Amendment was added to the U.S. Constitution exactly to prevent law enforcement from conducting mass, suspicionless investigations under “general warrants” that target no specific person or place and never expire.

ALPR scans look a lot like these general warrants. Even though LAPD and LASD argued that the records were collected as part of investigations into stolen vehicles and other crimes, the plate scans are not triggered by any level of suspicion at all. Instead, ALPR cameras scan every plate that comes into view—automatically—whether the squad car is in the police parking lot or driving past a mosque. The officer in the squad car does nothing to focus the camera or program it to take a picture of one vehicle rather than another. At the instant any plate is photographed, not even the computer system itself—let alone the officer—has any reason to think the plate is linked to a crime. And the cameras are on and collecting data during the officer’s entire shift. If this is really a police investigation, then it’s exactly the type of investigation the Fourth Amendment was designed to prevent.

The court appears to disregard these facts, however. It held that because cops may pick specific neighborhoods to drive in or routes to follow with their camera-equipped cars, ALPR data generated by mobile cameras is targeted and “is not the indiscriminate recording of license plates.” Not only is this a fundamental misunderstanding of how these systems operate, it is an important error for our case; the court later suggests that if ALPR data were indiscriminate, “it might not constitute a record of investigation” and thus would not be exempt from disclosure under the California Public Records Act (CPRA).

Is Secrecy Better than Transparency?

Perhaps more troubling is the court’s second reason for withholding records—its holding that the threat to ongoing investigations from revealing the data “substantially outweighed” the public interest in seeing the information the police collect.

There’s little in the record to suggest that historical ALPR data is really useful for ongoing investigations. ALPRs are used mostly for alerting police in real-time when a car linked with unlawful activity (from licensing violations to serious crime) is nearby, so the officer can write a ticket, make an arrest, or recover the car. But that activity wouldn’t be hindered by providing the public with a list of the vehicles ALPRs had scanned. The two agencies provided only a couple of anecdotal examples where they asserted that consulting the historical ALPR database proved useful to an investigation. And they provided no real evidence or explanation on how making the data public could threaten ongoing investigations—especially given that they could redact any data associated with plates on a "hot list." Presumably, criminals already know that their cars have license plates and might be spotted by police.

More importantly, if this data does reveal patterns of surveillance, that is even more reason for the cops to be required to release it. We sought this data in the first place because we believe that disclosure of a limited amount of data the cops collect through ALPR systems—data from one week in 2012—is necessary to inform the public debate about the appropriate use of and limitations on these systems. We think seeing the actual datapoints is the best way to understand exactly how and where cops use these cameras. For example, without the raw data, we can’t learn whether cops are scanning more plates in Compton than in Beverly Hills or scanning specific vehicles’ plates multiple times. Also, seeing those millions of data points plotted on a map of the greater LA area makes the sheer volume and intrusiveness of the surveillance apparent in a way that is more powerful than merely reciting the number of ALPR cameras in use or plate scans collected each week.

As the court noted, the CPRA “was intended to safeguard the accountability of government to the public . . . and makes public access to government records a fundamental right of citizenship.” This access provides a necessary check against government secrecy and the arbitrary exercise of official power and—because of the power the police wield—is no more necessary than when the records concern police conduct. Californians should have access to this data because it could reveal patterns of policing. Without the data, the public cannot fully determine whether the police are using ALPR systems appropriately—or in a manner that violates civil rights.

The court’s ruling in the case is dangerous because it means that the police can institute broad, suspicionless, and indiscriminate surveillance practices—practices that scoop up sensitive data on millions of law-abiding citizens—without any possibility of public review. Under the court’s ruling, you can’t request even the ALPR data police have collected about your own car. The CPRA was intended to ensure government accountability; with a ruling like this, the public’s ability to be a check against arbitrary and discriminatory police practices is severely weakened.

- Court Order — EFF & ACLU v. City & County of Los Angeles

Related Issues: PrivacyLocational PrivacyTransparencyRelated Cases: Automated License Plate Readers (ALPR)
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Right to Know: The PACER Mess And How to Clean It - Wed, 03/09/2014 - 09:40

PACER (Public Access to Court Electronic Records) is the government-run online system used by lawyers, the press, and the public to access public federal court records in the United States. The administrators of that system recently announced that a huge number of documents from five federal courts have been permanently removed from its database and are no longer publicly viewable. For one circuit court, only documents filed within the last 2.5 years are now available; for two other circuit courts, documents now go back only 4 years. 

Though this change appears to be part of PACER’s attempt to join the 21st Century—the removal is part of PACER’s migration to its NextGen system, which is incompatible with the decades-old legacy systems holding these records—it stands in sharp contrast to the Supreme Court’s acknowledgement in Nixon v. Warner Communications that the public has “a common-law right of access to judicial records” and to PACER’s own mission of making records more accessible.1

The removal of the files of five U.S. federal courts from its system deserves to be lambasted for many reasons (don’t worry: we’ll get to that below). But it can also serve as an important—and, we hope, enticing—invitation to the affected courts: Given that the removed documents are already digitized as PDFs and that numerous organizations have offered to host the documents for free, we encourage the courts to publish their records elsewhere and finally make their public records truly accessible to the public.

The Mess

PACER’s removal of records on August 11 has been an undeniable mess. First, the removal happened a mere day after the plan was announced. And the initial announcement didn’t even provide all of the details of the change (a screenshot of the original is available here).

Given that PACER is the one-and-only system for Public Access to Court Electronic Records—including a number of important civil rights decisions the records of which were removed—more notice should have been given.

Second, this shift marks a serious step back, even for PACER.

PACER has long drawn the ire of open-government activists like the late Aaron Swartz and Public.Resource.Org’s Carl Malamud for charging users to access public documents (10 cents per page for search results and 10 cents per page for documents retrieved). These charges quickly add up—both for users and for PACER. In fact, according to a 2009 New York Times report, PACER had a surplus of $150 million. We believe PACER should not charge people to access the law. These records have the potential to impact people’s lives on a daily basis, and the fact that the fees have resulted in a profit is absurd.

The Cleaning Solution

For years, activists like Swartz and Malamud attempted to free court records for the public. In 2008, Malamud raised funds to put 50 years of federal appellate court records online, while encouraging other activists to do the same. Swartz heeded the call and wrote a program to download records that 17 libraries were offering for free as part of a pilot trial. Swartz’s program so alarmed those in charge that they shut the pilot program down, and the FBI even conducted a politically-charged investigation, though no charges were filed.

Since then, tools have emerged to assist in liberating court records. One such tool is RECAP, a Firefox and Chrome extension that allows PACER users to donate the documents they view to the Internet Archive, which can then be accessed by other users without incurring fees. The Free Law Project and Princeton University’s Center for Information Technology Policy maintain the extension.

In response to the current PACER mess, several organizations, including the Free Law Project and Public.Resource.Org, have sent letters to the Chief Judge of each affected court, requesting the removed records so they can make them available once again to journalists, researchers, lawyers, and the general public.

These organizations are giving the courts the opportunity not only to make the records available online again but, even better, to make them available online for free. The courts have nothing to lose and much to gain by fulfilling this request: the records are already digitized, and simply need to be hosted somewhere. The Free Law Project and Public.Resource.Org are offering to do just that, and at absolutely no cost to the courts, litigants, academics, or the public. We urge the courts to take these organizations up on their offer.

  • 1. PACER notes that people who wish to obtain the deleted records can still do so the old-fashioned way, by requesting hard copies directly from the court. But, given that these records are already digitized and were previously available online, this marks an absurd regression.
Related Issues: Open Access
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Top 20 Cosplay Activists from Project Secret Identity at Dragon Con - Wed, 03/09/2014 - 07:28

Over Labor Day weekend, more than 75 cosplayers at Dragon Con became Internet freedom heroes for real, using their fantastic costumes to highlight how anonymity and privacy are crucial to free expression.

It was all part of Project Secret Identity, a cross-fandom activism campaign organized by EFF, io9, the Southeastern Browncoats, the Harry Potter Alliance, the Baker Street Babes, Wattpad and the Organization for Transformative Works. Even avatars from virtual worlds organized a march online in solidarity.

Choosing just 20 of the best images was a superhuman task in itself, so hop over to to see the full selection.

Gamora from Guardians of the Galaxy

Black Panther and Storm from the Marvel universe

Tank Girl

Psylocke from the Marvel Universe

A Clockwork Joker

Jase Robertson from Duck Dynasty

A Giant Jayne's Hat from Firefly

Star-Lord from Guardians of the Galaxy

Pam from Archer

Oberyn Martell and Ellaria Sand from Game of Thrones

Red Lantern and Green Lantern from the DC universe

Jayne from Firefly

Draconian from Dragon Ball

Charles Zi Brittania from Code Geass

Splicer from Bio Shock

Red Green and Raven from the DC universe

Professor Kai Drakken, Steampunk

HUNK and Lady HUNK from Resident Evil

Draco Malfoy from Harry Potter

A Rococo Punk

Pikachu from Pokémon

Related Issues: Free SpeechAnonymity
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Supreme Court Sends Stupid Software Patent Back To Federal Circuit, Again - Wed, 03/09/2014 - 05:38

Update: On August 28, 2014, EFF asked the Federal Circuit for permission to file a short amicus brief in this appeal. Our brief argues that the Supreme Court’s decision in Alice v. CLS Bank requires that Ultramercial’s patent on showing ads before content (but on the Internet!) be invalidated as abstract. Since this case has bounced back and forth between the Supreme Court and the Federal Circuit, this is now the fourth amicus brief EFF has prepared arguing that the patent is invalid.

Is adding “do it on the Internet” enough to make an abstract idea patentable? That’s the question for the Federal Circuit when it considers, for the third time, Ultramercial’s idiotic patent on showing an online advertisement before a “media product.” The Ultramercial case is the first big test for the Supreme Court’s landmark ruling in Alice v. CLS Bank. If the patent stands, the Federal Circuit will be insisting on business as usual. If it falls, many other abstract software and Internet patents should soon fall with it.

The Ultramercial case has been bouncing around the federal courts for years. In 2010, a trial court held the patent invalid on the grounds it claimed an abstract idea. On appeal, the Federal Circuit reversed, finding the patent non-abstract because it “clearly require[s] specific application to the Internet and a cyber-market environment.” The Supreme Court then sent the case back to the Federal Circuit for reconsideration. In a remarkable decision by former Chief Judge Randall Rader, the lower court thumbed its nose at Supreme Court authority and upheld the patent for a second time. The defendants returned to the Supreme Court. EFF filed an amicus brief urging the Court to take the case and find the patent abstract.

While the second Ultramercial petition was pending, the Supreme Court decided Alice v CLS Bank, holding that adding “do it on a computer” does not make an otherwise abstract idea patentable. Today, rather than issue a ruling on the merits in Ultramercial, the Supreme Court issued what's known as a "GVR order," sending the case back to the Federal Circuit (again) for reconsideration in light of its Alice ruling.

In a sane world, Ultramercial would be an easy case. Tying an abstract idea to the Internet (or even a “cyber-market environment”) should not render it patentable. Also, courts must not be conned by the faux-complexity of the claims. The Supreme Court cautioned in Alice that patent eligibility should not “depend simply on the draftsman’s art.” The techno-babble in Ultramercial’s patent, and the Federal Circuit’s credulous treatment of it, is a good example of exactly the opposite.

Patents like this one, which are the favorite weapon of patent trolls, should never have been granted in the first place. But since the USPTO has already flooded the system with thousands of similarly vague and abstract patents, we need courts to strike them down before they do any more damage. And we need judges to rule early in litigation (like here and here) so that defendants—especially small businesses and startups—don’t have to spend millions to defeat a bad patent.

Back in 2010, after the original trial court decision, Mike Masnick of Techdirt wrote that the Ultramercial case would be “worth watching.” Since then, the patent has become a poster child for stupid software patents. Nearly four years later, we’re still watching to see if the courts will protect innovators from a patent that should never have issued.

Files:  eff_motion_amicus_brief_-_ultramercial_v_wildtangent_-_8-28-2014.pdfRelated Issues: PatentsPatent TrollsInnovation
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