Aggregated News

The Battle for the Web: Five Years After Egypt's #Jan25 Uprising

eff.org - Tue, 09/02/2016 - 04:24

Behind the Western-supported government of President Abdel Fattah el-Sisi’s lies a troubling trend threatening free speech in Egypt. CPJ’s latest figures list Egypt as the second highest jailer of journalists, second only to China. Eighty-two percent of all journalists in prison in Egypt used the Internet as a medium, according to the organization’s 2015 prison census. A recent report [PDF] from the Association for Freedom of Thought and Expression found 366 violations of freedom of the press in the latter six months of 2015, 36 of which related to “news networks or websites.”

It’s no surprise then that this troubling trend has reached beyond official journalists, snaring Facebook admins in its wake. 

On December 30, Facebook’s Free Basics—a smartphone app that provides users with tariff-free access to Facebook and other services—was shut down in the country, prompting speculation that the move was due to national security concerns. Both Etisalat—Facebook’s telecom partner—and the Ministry of Information claimed that the contract between the social network and the local telecom had simply expired. Buzzfeed quoted an unnamed government official as saying: “Companies don’t know how to do business in Egypt. We kill them with tea and bureaucracy until they go away.” Meanwhile, several human rights activists were also quoted as saying that the government had shut down Free Basics to “punish Facebook.”

According to the Arab Social Media Report, a publication of the Dubai School of Government, Egypt has 14 million Facebook users, which represents 24% of all users in the Arab region.

Although Free Basics has generated controversy elsewhere—particularly in India, which banned the service—for other reasons, the Egyptian government has historically shown little love for the social network. In 2011, amidst the first heady days of the uprising, they blocked Facebook. Numerous individuals have been detained for expressing themselves on the platform, while more recently it was reported that administrators of popular pages were arrested in the runup to January 25th, the fifth anniversary of the uprising that ousted long-time autocrat Mubarak.

 Visualizing Impact and Mada Masr's infographic on Egyptian press freedom

Since then, the Sisi government, which came into power after a military takeover of the democratically-elected government of Mohamed Morsi, has escalated its campaign to silence critics. On January 31, Islam Gawish—a cartoonist with 1.6 million Facebook followers—was arrested during a police raid of a newspaper office in Cairo. On February 3, human rights lawyer Gamal Eid was banned from travel. The phenomenon led a New York Times columnist to ask if social media was a destroyer or creator. In the article, Wael Ghonim (the ex-Google employee said to have kickstarted the revolution with a Facebook page) was quoted as saying:

“Five years ago, I said, ‘If you want to liberate society, all you need is the Internet.’ Today I believe if we want to liberate society, we first need to liberate the Internet.”

As Egyptians fight to liberate the Internet at home, Egyptian politics may find a new space in US culture. Bassem Youssef, whose TV show Al Bernameg reached audiences beyond Egypt’s airwaves via YouTube before it was forced off the air, will soon have his own TV program on F-Comedy, a US television network.









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Funcionarios de comercio firmaron el TPP, pero depende de los legisladores el rechazarlo

eff.org - Sat, 06/02/2016 - 09:02

Altos funcionarios de los países que participan del Tratado Trans-Pacífico (TPP en inglés) se han convocado en Nueva Zelanda esta semana para firmar el acuerdo final. Pero en realidad esta ceremonia es simplemente una formalidad. Desde noviembre del año pasado, desde el día que anunciaron un acuerdo concluido e hicieron público el texto un poco después, sabíamos que iban a hacer ésto. Los funcionarios de comercio no han rendido cuentas al público. Ellos se mantuvieron firmes excluyendo la participación pública y haciendo caso omiso a todos los pedidos de transparencia en los más de cinco años de negociaciones del TPP. Debido a este proceso opaco, los negociadores comerciales fueron capaces de cumplir con la lista de deseos de Hollywood y de las grandes compañías tecnológicas en cuanto a las políticas de regulación y sin tener que preocuparse por la forma en que éstas impactarían en la Internet o los derechos de las personas ni de sus sus dispositivos digitales.

Pero para que el TPP entre realmente en vigor, los países deben ratificarlo. Cada uno de los doce países integrantes del TPP tienen procedimientos diferentes para hacer ello, pero en los Estados Unidos, las dos cámaras del Congreso tienen que votar o rechazar el acuerdo. Debido a razones políticas y conforme a las cláusulas estipuladas por el TPP,1 el tratado no puede entrar en vigor sin la ratificación de los EE.UU. Es por eso que es tan importante que en EE.UU. los ciudadanos exijan la rendición de cuentas al Congreso sobre este tratado y urjan a sus legisladores que voten por el NO cuando el TPP les sea presentado para su aprobación.

No es probable que el Congreso de los Estados Unidos vote en la aplicación de la reglamentación del TPP (es decir, la ratificación) hasta después que la Comisión de Comercio Internacional de los Estados Unidos (ITC en inglés) emita a mediados de mayo su informe sobre los impactos económicos del tratado. En algún momento después de eso, el presidente presentará a los legisladores la aplicación de la reglamentación. Una vez que eso suceda, la Cámara de Representantes tiene 60 días a partir de la introducción del proyecto de ley para realizar una votación, y el Senado tiene otros 30 días, por lo que son unos 90 días en total para aprobar o rechazar el tratado. Esta segunda línea de tiempo sólo se iniciará cuando la Casa Blanca confíe que obtuvo los votos necesarios para su aprobación. Es por eso que es fundamental mantener una presión constante sobre los legisladores para revertir los planes del Ejecutivo para aprobar el TPP.

Una completa amenaza a los derechos, con dudosos beneficios en la economía

Mientras que los líderes de comercio han promocionado la firma del acuerdo en esta semana, el TPP continúa atrayendo a las críticas internacionales. Desde Ginebra, el experto en derechos humanos de la ONU Alfred de Zayas publicó un comunicado condenando todo el tratado, manifestando que "el TPP es fundamentalmente defectuoso y no debe ser firmado o ratificado" a menos que se garantice el derecho de los Estados a promulgar reglamentos en aras de proteger el interés público. También hizo hincapié en que los países involucrados deben reafirmar sus obligaciones internacionales de derechos humanos en el ejercicio de las disposiciones del tratado. El profesor Michael Geist de la Universidad de Ottawa ha estado escribiendo sobre el acuerdo todos los días desde el inicio del año, destacando varios problemas con el TPP -incluyendo la falta de equilibrio en el capítulo de la Propiedad Intelectual, la prohibición de evadir los cerrojos digitales en dispositivos y contenidos, y las diferentes formas en que el acuerdo podría socavar la privacidad de los usuarios.

Incluso los beneficios económicos del TPP están bajo una disputa intensa. Investigadores de la Universidad de Tufts publicaron un informe el pasado lunes en el que hallaron que el tratado conduciría a pérdidas de empleo y al aumento de la desigualdad económica. Mientras tanto, un análisis divulgado la semana pasada por el Instituto Peterson de Economía Internacional ratificó las alegaciones de la Casa Blanca que el TPP aumentaría los ingresos y el crecimiento económico en los Estados Unidos. Estos informes podrían influir en el resultado de la evaluación de la ITC sobre el TPP y, a su vez, impactar en el apoyo o desaprobación del tratado en el Congreso.

Existe un desacuerdo sobre los impactos de los contenidos sustantivos del acuerdo, pero existe un elemento seguro. Las negociaciones del TPP se llevaron a puerta cerrada, con fuerte influencia de un limitado subgrupo de las partes interesadas. Esto significó que miembros del público en general, incluidas las pequeñas empresas, emprendedores, y otros sectores menos representados, fueron excluidos en gran medida. Dado este hecho, es muy poco convincente que el TPP podría reflejar verdaderamente las preocupaciones de todos los diversos actores de la economía, muchos de los cuales pueden no ser políticamente influyentes ahora, pero que pueden estar en el terreno donde impulsarán la innovación en las próximas décadas.

Lo que es importante de recordar también es que el crecimiento económico no es el único factor por el cual debemos medir el valor o la necesidad de leyes y propuestas regulatorias. El TPP puede conducir al crecimiento de las economías nacionales en una pequeña fracción de un punto porcentual, pero, ¿es eso todo lo que importa? Por supuesto que no. Hechos como el derecho de reparar, modificar y reciclar nuestros propios dispositivos son importantes. La capacidad de expresar, criticar, retocar y volver a utilizar las obras creativas nuevas o destacadas son importantes. Es relevante, porque así las obras culturales permanecen por ley bajo llave durante tanto tiempo y que tras varias décadas, son subutilizadas o literalmente desaparecen sin haber sido preservadas.

Todas estas y otras consideraciones son importantes. Sin embargo, ellas no fueron tomadas en cuenta. Es por esto que este acuerdo es una traición a la democracia,  a todas las personas cuyas preocupaciones no han sido atendidas en estas negociaciones. En Estados Unidos al menos, tenemos que hacer que el Congreso entienda esto, ya que sólo lo oirán si proviene de sus electores, el pueblo estadounidense.

  • 1. El TPP entrará en vigencia, ya sea en 60 días después de que cualquiera de los países firmantes originales lo ratifiquen; o si eso no ocurre, dentro de dos años, en Abril de 2018, si al menos seis de los 12 países que representen el 85 por ciento del PIB combinado de los países firmantes originales han ratificado el acuerdo.

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Maryland Bill Would Protect Consumers’ Free Speech from Bad Contracts (H.B. 131)

eff.org - Thu, 04/02/2016 - 04:01

Should a company be allowed to use its own contractual fine print to take away its customers’ free speech? What fundamental rights should not be waivable?

We’ve written in the past about companies putting clauses in their form contracts that ostensibly forbid customers from posting online reviews of those companies’ products and services. Members of the Maryland House of Delegates have introduced a bill (MD H.B. 131) seeking to end the practice in Maryland. The bill’s sponsors are Dels. Jeff Waldstreicher, David Moon, Benjamin Kramer, and C.T. Wilson.

Under H.B. 131, vendors would not be allowed to use “gag clauses” in their contracts with customers—for example, an auto repair shop in Maryland wouldn’t be allowed to use a contract that tries to restrict its customers from complaining online about its services. HB 131 is closely modeled after a law that California passed in 2014

EFF submitted a written testimony to the Maryland House of Delegates Economic Matters Committee in support of this timely bill:

H.B. 131 addresses one component of a larger issue that has troubled us for years: companies hiding terms in form contracts designed to rob customers of their rights. Whether it’s a restrictive terms-of-service agreement waiving a customer’s right to modify the software on her phone or a dentist’s contract forbidding his patient from leaving a negative review, the principle is the same: contracts should not be used to waive consumers’ rights. This is especially true when consumers don’t have a meaningful opportunity to negotiate contract terms.

We’ve been following the disturbing trend of vendors burying clauses in their contracts that bar customers from leaving reviews of their products and services. When these cases have gone to trial, courts have reliably sided with the customer; unfortunately, that hasn’t stopped the practice. For every high-profile story of a customer fighting back against this unfair business practice, there are many more stories we’ll never hear: stories of customers who simply gave up under a company’s pressure to pay a fine or delete a review. Because legal gray areas are fertile ground for legal bullying, the law should make it clear that customers have every right to speak their mind, even if a company’s form contract says otherwise.

We recommended two possible improvements to the bill. We noted that the bill only applies to “goods or services that are primarily for personal, household, or family purposes”—we’re not sure why the drafters chose to limit its scope that way.

We also suggested that the House consider addressing a related practice: some vendors claim in their form contracts to own intellectual property rights in a customer’s future reviews. The companies may then attempt to remove a negative review by filing a takedown request under the Digital Millennium Copyright Act. The Consumer Review Freedom Act, a similar bill that recently passed the U.S. Senate, would ban both practices.

Our recommendations aside, it’s great to see another state addressing anti-review contracts. Both at the state and national levels, we hope to see lawmakers do more to protect people’s rights from one-sided, unfair contracts.


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Trade Officials Sign the TPP But It's Still Up to Lawmakers to Reject It

eff.org - Wed, 03/02/2016 - 14:58

Top officials of countries involved in the Trans-Pacific Partnership (TPP) are convening in New Zealand today to sign the final agreement. But really this ceremony is just a formality. We knew since November, from the day they announced a completed deal and made the text public shortly thereafter, that they would do this. These officials have not been accountable to the public. They have remained steadfast in excluding public participation and ignoring all calls for transparency over the more than five years of TPP negotiations. Because of this opaque process, trade negotiators were able to fill the agreement with Hollywood and Big Tech's wish lists of regulatory policies without having to worry about how they would impact the Internet or people's rights over their digital devices.

But for the TPP to actually go into force, countries need to ratify it. Each of the twelve TPP countries have differing procedures for doing this, but in the U.S., both houses of Congress needs to vote up or down on the agreement. Due to both political reasons and the terms of stipulated by the TPP,1 the agreement cannot go into force without the United States' ratification. That's why it's so critical that people in the U.S. demand congressional accountability over this deal and urge their lawmakers to vote no when the TPP comes before them for approval.

The U.S. Congress is not likely to vote on the TPP implementing legislation (aka ratification) until after the International Trade Commission (ITC) comes out with its report about the agreement's economic impacts in mid-May. At some point after that, the President will submit the implementing legislation to lawmakers. Once that happens, the House has 60 days from the bill's introduction to hold a vote on it and the Senate gets another 30 days, so 90 days in total, to approve or reject it. This second timeline will only begin when the White House is confident that it has the votes lined up for its approval. That's why it's critical to apply constant pressure on lawmakers so that they will turn a cold shoulder to the Executive's plan to pass the TPP.

Absolute Threats to Rights with Questionable Benefits to the Economy

While trade leaders tout the signature of the agreement today, the TPP continues to attract international criticism. From Geneva, UN human rights expert Alfred de Zayas published a statement yesterday condemning the entire deal, saying that the "TPP is fundamentally flawed and should not be signed or ratified" unless it guarantees the right of states to enact regulations in the name of protecting the public interest. He also stressed that the countries involved must reaffirm their international human rights obligations while carrying out the provisions of the agreement. Professor Michael Geist of the University of Ottawa has been writing about the agreement every weekday since the new year, highlighting various troubles with the TPP—including the lack of balance in the Intellectual Property chapter, its ban on circumventing digital locks on devices and content, and the different ways the deal could undermine users' online privacy.

Even the economic benefits of the TPP are being hotly contested. Researchers at Tufts University released a report on Monday that found the agreement would lead to losses in employment and increased economic inequality. Meanwhile, an analysis by the Peterson Institute for International Economics published last week supported the White House's claims that it would increase incomes and economic growth in the United States. These reports could influence the outcome of the ITC's examination of the TPP, and in turn, impact congressional support or disapproval for the deal.

There's disagreement about the impacts of the substantive contents of the deal, but there is one thing for certain. The TPP negotiations were held behind closed doors with heavy influence from a limited subset of stakeholders. This meant members of the broader public, including small businesses, entrepreneurs, and other underrepresented industries, were largely excluded. So given this fact, it is pretty unconvincing that the TPP could truly reflect the concerns of all the diverse stakeholders in the economy, many of whom may not be politically influential now, but may be on the frontiers of driving innovation forward in the decades to come.

What's important to remember too is that economic growth is not the only factor by which we should measure the value or necessity of proposed laws and regulations. The TPP may lead to the growth of national economies by some small fraction of a percentage point, but is that all that matters? Of course not. Things like the right to repair, modify, and recycle our own devices matter. The ability to talk about, criticize, take apart, and reuse creative works that is new or otherwise relevant, matters. It matters whether or not culture remains locked up by the law for so long that decades of it become underutilized, or worse, literally disappear without ever getting preserved.

All of these and other considerations matter. Yet the impact the TPP will have on them was never taken into account, nor will they ever be measured or discussed. This is why this agreement is such a betrayal of democracy, of everyone whose concerns were not privileged in these negotiations. We have to make sure Congress understands this—and they only will if they hear it from the American people, their constituents.

  • 1. The TPP will enter into force either 60 days after all original signatories ratify it or, if that doesn't happen within two years, in April 2018 if at least six of the 12 countries accounting for 85 percent of the combined gross domestic product of the original signatories have ratified the agreement.

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UK’s Investigatory Powers Bill: Loopholes Within Loopholes Will Lead to Unbridled Surveillance

eff.org - Wed, 03/02/2016 - 08:20

The House of Commons Science and Tech Committee has published its report on the draft Investigatory Powers Bill, influenced by comments submitted by 50 individuals, companies, and organizations, including EFF. The report is the first of three investigations by different Parliamentary committees. While it was intended to concentrate on the technological and business ramifications of the bill, their conclusions reflect the key concern of lawmakers, companies, and human rights groups about the bill’s dangerously vague wording.

The Investigatory Powers Bill, as written, is so vague as to permit a vast range of surveillance actions, with profoundly insufficient oversight or insight into what Britain’s intelligence, military and police intend to do with their powers. It is, in effect, a carefully-crafted loophole wide enough to drive all of existing mass surveillance practice through. Or, in the words of Richard Clayton, Director of the Cambridge Cloud Cybercrime Centre at the University of Cambridge, in his submissions to the committee: “the present bill forbids almost nothing ... and hides radical new capabilities behind pages of obscuring detail.”

The bill is 192 pages long, excluding over 60 pages of explanatory notes. Our comments to the committee focused on just one aspect of the bill, what they call “equipment interference.” Despite our emphasis on just one small part of the bill, our analysis revealed multiple ambiguities and broad new powers that would allow the security and intelligence agencies, law enforcement and the armed forces, to target electronic equipment such as computers and smartphones in order to obtain data, including communications content. The bill also provides for the UK government to compel companies and individuals to comply with its surveillance demands, including those located outside Britain, and to bar companies from revealing that they were the subject of such demands. As the committee says in its conclusions, “We believe the industry case regarding public fear about ‘equipment interference’ is well founded.”

The bill also includes a new mandate for data retention whose breadth is similarly ambiguous. Terms like “internet connection records,” “telecommunications service,” “relevant communications data,” “communications content,” “technical feasibility,” and “reasonable practicable” were all criticized in the report for their vague and overbroad use. The government’s excuse is that it wants to create a “future-proof” bill, but loose language is bad for businesses trying to understand what obligations they are under. And it’s certainly bad for civil liberties when governments exploit those ambiguities to obtain or hold onto new powers.

The details of these definitions and safeguards surrounding them should not be punted into secondary legislation. As the committee notes, a disturbing degree of detail about the Investigatory Powers Bill is deferred to future “Codes of Practice.” We’ve been down this road before in the UK. IPB’s predecessor, the Regulation of Investigatory Powers Act (2000) also placed its devilish details into future statutory instruments, which were often slipped past Parliamentarians with little warning or debate. The result was years of expansion of RIPA powers, to the point where powers originally intended for the intelligence services were delegated to over four hundred public bodies. Even the head of MI5, Lady Manningham-Buller, who lobbied for the RIPA powers, was shocked by the eventual overreach:

I can remember being astonished to read that organizations such as the Milk Marketing Board, and whatever the equivalent is for eggs, would have access to some of the techniques. On the principle governing the use of intrusive techniques which invade people's privacy, there should be clarity in the law as to what is permitted and they should be used only in cases where the threat justified them and their use was proportionate.

This is why, as the committee says, “it is essential that this timetable does not slip and that the Codes of Practice are indeed published alongside the Bill so they can be fully scrutinized and debated.”

We would go further: EFF believes that a productive discussion around the Investigatory Powers Bill can only begin once all the cards are on the table. The UK government needs to answer all the questions raised by the committee, including those currently postponed to Codes of Practice, and embed those answers in a revised bill, which can then be more seriously considered, or it's destined for a future of abuse followed by dismantlement in the courts.

The series of successful challenges in the UK and EU against previous surveillance law and practice shows that vague and unbounded language cannot survive a serious challenge in the courts. If the UK government wants its surveillance rules to stand the test of time, it needs to build them on a firm foundation of clarity, necessity, and proportionality.


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Estamos con Diego. ¡Apoyemos el Acceso Abierto!

eff.org - Wed, 03/02/2016 - 02:01

Hay una batalla que está ocurriendo sobre el futuro de las publicaciones académicas, pero el impacto que este combate tendrá en el mundo será cualquier cosa menos académico. Los riesgos son altos, y hay víctimas reales.

Este 1 y 2 de Febrero, se llevarán a cabo unas audiencias orales por el caso de Diego Gómez, un estudiante colombiano que está siendo enjuiciado por compartir con sus colegas a través de Internet la tesis de maestría de otro estudiante, algo que miles de investigadores lo hacen todos los días. Diego enfrenta la posibilidad de años bajo prisión, gracias a las fuertes sanciones por la infracción de derechos de autor que Colombia implementó como parte de un acuerdo de libre comercio con los Estados Unidos del 2012.

La EFF ha sostenido durante mucho tiempo que las excesivas reglas del derecho de autor tienen un efecto paralizante sobre el derecho de las personas, especialmente en países donde la ley del derecho de autor no protege la libertad de expresión de los usuarios a través de robustas excepciones y limitaciones de uso razonable de las normas de derechos de autor.

Independientemente de las opiniones particulares sobre las sanciones del derecho de autor, sin embargo, un elemento es indiscutible: si las publicaciones de acceso abierto fueran un estándar global, Diego no estaría en los tribunales en absoluto. Los investigadores no deben correr el riesgo de penas severas por compartir la información. Es tiempo de cambios para las publicaciones.

Juntos, podemos hacer que el acceso abierto al conocimiento sea la norma en las publicaciones académicas y científicas a nivel mundial. Únete a nuestra campaña y apoya a Diego.

Apoyemos el acceso abierto en todo el mundo

Muestra tu apoyo a Diego en Twitter:

La investigación académica no debe estar restringida o costar fortunas. Apoyemos el acceso abierto https://act.eff.org/action/let-s-stand-together-to-promote-open-access-worldwide #StandWithDiego


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Stand with Diego. Support Open Access.

eff.org - Tue, 02/02/2016 - 11:01

There’s a battle taking place over the future of academic publishing, but the impact that battle will have on the world is anything but academic. The stakes are high, and there are real casualties.

Today and tomorrow, there’s an oral hearing taking place for Diego Gomez, a Colombian student being prosecuted for sharing another student’s Master’s thesis with colleagues over the Internet—something that thousands of researchers do every day. Diego faces the possibility of years in prison, thanks to the steep penalties for copyright infringement that Colombia implemented as part of a 2012 trade agreement with the United States.

EFF has long held that extreme criminal copyright rules chill people’s rights, especially in countries where copyright law doesn’t protect users’ freedom of speech through robust fair use exceptions.

Regardless of your opinion on copyright penalties, though, one thing is undebatable: if open access publishing were the global default, Diego wouldn’t be in court at all. Researchers shouldn’t risk severe penalties for sharing information. It’s time for publishing to change.

Together, we can make open access the standard for academic and scientific publishing worldwide. Join us as we stand with Diego.

Support Open Access Worldwide

Show your support for Diego on Twitter:

Academic research shouldn't be locked up or cost a fortune. Support open access. https://act.eff.org/action/let-s-stand-together-to-promote-open-access-worldwide #standwithdiego


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The Commerce Department Has Good Recommendations For Fixing Copyright Law - But More is Needed

eff.org - Sat, 30/01/2016 - 05:47

The U.S. Commerce Department released its long-awaited White Paper on fixes to copyright law yesterday and it's a pretty mixed bag. It includes some good recommendations on how Congress should change the law, but punts on some crucial enduring problems.

This paper grew out of a series of hearings in 2013 and 2014 in which EFF and other public interest organizations and academics gave evidence, along with people from the media and publishing industries. The Commerce Department panel deserves praise for inviting many different viewpoint. It covers three issues: remixes, the ability to re-sell and lend digital goods (called “first sale” rights), and copyright's civil penalties (called “statutory damages”). The paper makes some recommendations to Congress that will help promote innovation and free speech, and will hopefully help begin a conversation about other needed fixes. And the Commerce Department panel did a good job of inviting and hearing many different viewpoints. Still, their recommendations in these three areas don't go far enough to fix the problems they identify.

Legal Protection for Creative Remixes

The term 'remix' has come to stand for a wide range of creative activities that are disfavored by the current copyright regime because they rely on cultural works that are owned by others. The category includes photomanipulations, fan fiction, mashups of music and video, fan edits, redubs, video game modifications, and many other forms of expression that are ubiquitous on the Internet. Technology has made it easier than ever before for the average person to remix blockbusters and other pop culture, and remix is common way for people to highlight or critique the way they are represented or excluded in mass media—a tradition stretching back to Star Trek fanfic writers who told stories about Captain Nyota Uhura commanding the Enterprise rather than being its communications officer or stories that described Kirk and Spock in love.

These activities require copying or imitating aspects of a copyrighted work, leading some rightsholders to send cease and desist letters to remixers who criticize them, whose politics or aesthetics they disagree with, who depict adult content, or who commercialize their remix even in a way that has no impact on the market for the original.

But many remixes would be protected by the doctrine of fair use—assuming the remixer had the financial means and wherewithal to take a risk in court. Facing the risk of statutory damages and the time-consuming nature of resolving fair use cases, most remixers back down instead.

Thus, the current regime of expansive rights for copyright holders, a lack of clear safe harbors for important speech activities, and astronomical statutory damages gives copyright owners the de facto power to censor remix. The effect is aggravated by private arrangements such as YouTube's ContentID or Facebook's copyright monitoring system. ContentID, for example, uses a computer algorithm to detect copyrighted works and enables rightsholders to censor or divert profits from the speech of others, even when copyright law gives them no right to do so.

The fact that copyright law represses a crucial channel for ordinary people, including underrepresented minorities, to speak and be heard reflects a serious problem in the law. This problem should be taken just as seriously as it would be in other areas of law where certain speakers or media are chilled by government regulation.

The Commerce Department undertook to solicit public input and make recommendations regarding how copyright law could be changed to accommodate remix. We explained [PDF] the chilling effect copyright has on important remix speech and suggested a clear and narrow delineation of copyright owners' ability to restrict derivative works like remixes. The ability to control derivative works would only cover faithful adaptations such as translations, novelizations, or abridgements, and would not reach creative works using the original as inspiration or raw material. The Commerce Department panel did not discuss our recommendation in its comments.

The Task Force instead focused its discussion of remix on three categories: the creation of a remix 'safe harbor,' the development of a compulsory licensing regime for remix, and encouraging voluntary licensing practices. It concluded that no binding measures should be adopted, but that voluntary licensing and education for remixers to know their fair use rights would be valuable.

While it certainly would be valuable for all remixers to know the extent of their rights, artists who know the state of the law are often more chilled than those who assume that online norms around shared culture are reflected in the law. More knowledge about a broken system is not a great fix.

Similarly, we have little hope that licensing regimes will address the chilling effect of an overly restrictive copyright system. The trend has been for rightsholders to seek an expansion of rights to generate revenue from every use of copyrighted works that they can detect, and in the Commerce proceeding many spoke of a desire to censor uses they found offensive (a right they do not have under existing US law). Existing licensing practices can be a death knell for entire art forms: commercial sampling, for example, was decimated when artists believed they had to license samples and those licenses were not forthcoming on reasonable terms (or sometimes on any terms at all). Similarly, licensed online music was barren for years because of unwillingness to license on reasonable terms.

Although we are disappointed that the panel didn't recommend stronger protection for remixes, we will continue to advocate for the rights of ordinary people to express themselves using elements of popular culture and push back against copyright law when it sabotages the creation of new cultural works.

Re-Selling Digital Goods – the “First Sale” right

Another topic that the White Paper talks about is people’s ability to re-sell, lend, or give away digital goods. The legal term for this is “first sale” or “exhaustion of rights.” EFF and consumer groups told the Commerce Department panel that the freedoms we take for granted with physical goods, like loaning a book to a friend, selling used DVDs, or renting video games, are under regular assault in the world of digital downloads. Digital goods like ebooks, downloaded movies and games can’t easily be re-sold or given away. That’s mostly because of the fine-print “license agreements” that come with digital goods. The agreements say that we don’t actually own those downloaded goods, even after paying for them and clicking a “Buy” button. And we can lose access to “purchased” digital goods entirely when online stores and servers shut down.

EFF recommended that Congress should change the Copyright Act to make it clear that “lawful possessors” rather than “owners” have the right to sell or give away their copies, and to prevent sellers of digital goods from taking away important buyers’ rights in the fine print.

The White Paper acknowledged these problems, but also talked about newer DRM-based “family plan” and “rental” business models, and subscription-based services like Netflix and Spotify. According to the panel, these new business models “provide[] some of the benefits traditionally provided by the first sale doctrine,” but not the ease of selling or lending copies. Unfortunately, the panel concluded that it was too “difficult . . . to evaluate what consumers have lost” when the freedom to sell, lend, or give away digital goods without permission is taken away. And the panel seemed to be swayed by complaints from the movie and publishing industries that they should not have to compete with legally purchased and re-sold copies of their works.

This is disappointing. The freedom and privacy that come from having full ownership over the things we buy may be difficult to put a price tag on, but that doesn't make them unimportant. There’s lots more that can be done to preserve first sale rights for digital goods and protect buyers, particularly by making the most abusive clauses of fine-print license agreements invalid and protecting customers’ investments. The White Paper did say strongly that words like “Buy,” “Own,” and “Purchase” are misleading when all the customer gets is a “license” and some ephemeral permission to use their downloads. We hope that consumer protection agencies like the Federal Trade Commission and state consumer bureaus take notice of that.

Statutory Damages – Copyright's Broken Penalty Regime

The White Paper also called out copyright law’s massive and unpredictable civil penalties (called “statutory damages”) as a problem that needs a legislative fix. (We agree!) Copyright allows courts to impose damages of up to $30,000 per work, or $150,000 if the infringement is willful, without the copyright holder ever having to prove that they were harmed. That sort of giveaway to plaintiffs doesn’t exist in almost any other area of law, and most countries don’t allow it for copyright.

The White Paper quoted evidence that EFF and many others submitted about the unfairness of statutory damages and the chilling effect they have on innovation. It shows that damages awards often have little or no connection to the actual harm caused by infringement. It also shows that damages amounts for the same type of conduct vary widely and often exceed even large corporations’ ability to pay, making copyright lawsuits a game of financial Russian roulette. And the White Paper mentions how the threat of massive statutory damages fuels the abusive behavior of copyright trolls.

The big media and entertainment companies don’t want rational and predictable copyright penalties, because the current regime gives them a big club to wield against technology companies and innovations in digital media technology that they don’t control. The White Paper quoted their stonewalling responses as well, but didn’t give in to them.

The panel heard lots of proposals for how to fix statutory damages. It recommended three of them:

  • Add guidelines to the statute to help judges set the amount of statutory damages.

  • Strengthen the “innocent infringer” defense so that those who rely on fair use and other important limitations to copyright won’t risk massively large damages; and

  • For online businesses whose users interact with many different copyrighted works, allow judges to calculate damages as a whole rather than per work.

These recommendations are welcome, but they don’t go far enough. The “innocent infringer” defense only lowers the minimum amount of damages that judges can award per work—it doesn’t affect the maximum (schools, libraries, and archives get a bit more protection). That means that an artist or innovative business that relied on fair use in a reasonable way could face ruinous penalties of up to $30,000 per work if a court ultimately disagreed with their fair use rationale. It means that artists and innovators in digital media would still face unnecessary risks. Even the “innocent infringer's” minimum penalty of $200 per work may be disproportionate and unfair if the copyright holder suffered no actual harm.

A better approach would be to eliminate statutory damages entirely when a defendant reasonably relies on fair use or on copyright’s other limitations. That would avoid a chilling effect on speech and innovation. Congress should also separate compensation and punishment into two different damages calculations, the way that most other areas of the law do. And Congress should change the definition of “willful” infringement to something more like the one used in patent law. Today, even relying on a good-faith fair use rationale is sometimes called willful infringement, and that must stop. The White Paper doesn’t rule out these approaches, but only says that more discussion is needed.

We welcome that discussion.  Let's hope this long-awaited document helps move it forward.


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Stupid Patent of the Month: Sharing Your Hard Copy Documents, but on a Social Network

eff.org - Sat, 30/01/2016 - 04:38

Back when you were a kid, you may (depending on your age) have checked books out of your library using a circulation card. The cards, like the one pictured to the right, would allow the librarian to keep track of the books, who had them, and when they were expected back at the library.

(Ohio Univ Libraries / CC BY-NC-ND 2.0)

This month’s Stupid Patent is awarded to Xerox, who on January 19, 2016 was awarded a patent on essentially the library circulation card, but done electronically.

The patent, U.S. Patent No. 9,240,000, is entitled “Social Network for Enabling the Physical Sharing of Documents.” The patent discusses what it sees as a problem with current methods of sharing documents. Specifically, it says that “systems and methods which enable the sharing of documents among people working in proximate locations, while still promoting worker efficiency and independence, is [sic] needed.” In addition, “there is still a need for an efficient social networking platform which is organization specific and which allows members of an organization to know what other members sitting in the same organizational space are reading, what documents they are amendable to sharing, and to which documents they are providing physical access.”

And how does the patent solve these problems? Claim 11 details one way:

11. A computing system for enabling a physical sharing of a hard copy of a document, comprising:

[a] a plurality of programmatic instructions stored on a medium, wherein, when said plurality of programmatic instructions are executed, cause a client computing device to present a first graphical user interface to a user, wherein said first graphical user interface comprises a plurality of printing options for printing the document, wherein said first graphical user interface comprises an input for receiving an indication by the user that the user is willing to physically share the hard copy of the document within a predefined period of time; and

[b] a computing device for hosting at least a portion of a social network comprising a profile page of the user, wherein said computing device receives at least one of a characteristic of the hard copy of the document, in response to the user indicating a willingness to physically share the hard copy and publishes said characteristic on the profile page of the user, wherein said profile page is accessible to everyone who is connected to the user in a social network, and wherein said characteristic include at least one of title, date, location of document, or location of printing.

This claim is a good example of patent-speak. For various reasons, patent claims are often written in long, obfuscating language that tends to make them difficult to understand for anyone who isn’t a patent lawyer. To be clear: patent lawyers will rightly tell you that every word in a claim is important. This is true. But what is also true is that often times claims include terms—such as “plurality of programmatic instructions stored on a medium”—that are essentially meaningless outside the patent system.

Claim 11, when given a plain English translation, reads something like this:

A computer that, [a] via a GUI, asks the user whether they want to print something using through a variety of methods, and to note whether they want to share the document once printed, for a certain amount of time and [b] if the user says they want to share it, updates the user’s status on their profile page that tells people the name of the paper, the date it will be available and where.

This claim reads as merely a computerized version of the library’s circulation card. A library purchases a book (similar to the printing of claim 11). The library then offers it to one of its patrons, who then decides they would like to borrow it for a certain amount of time. The patron brings the book to the counter, the card is filled out with the patron number and due date, and then placed in the file of all the cards for other patrons to search if they’re looking for that book and when it will become available.

We just gave Xerox a patent on what amounts to sharing a book, but electronically. When considered this way, it is clear that Xerox’s patent is a stupid patent. It deserves our censure. But more importantly, this patent issued this month, on an “invention” from 2011. Ultimately this patent is one of hundreds or thousands of patents that don’t describe actual inventions, but rather just rehash old, obvious ideas “on a computer” using confusing language. The failure of the patent office to prevent this patent from issuing is regrettable, and shows just how dysfunctional our patent system is.


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Medium's Sitewide Encryption Confronts Censorship in Malaysia

eff.org - Fri, 29/01/2016 - 07:44

Blogging platform Medium is now blocked in Malaysia, apparently in an effort to censor an investigative news outlet critical of the government. The Sarawak Report has mirrored its articles on Medium at least since its own site was blocked in mid-2015, when it published allegations of corruption.

Medium's legal team has done an admirable job keeping the relevant post online in the face of government demands. It's published an account saying the company "stand[s] by investigative journalists" and that the post will stay up until it "receive[s] an order from a court of competent jurisdiction." But this story also demonstrates the censorship-resistant properties of online encryption like HTTPS, which Medium has enabled across its entire site.

That's because HTTPS conceals information both about what particular page readers are viewing, as well as the contents of that page, from people snooping on their connection. That's important, because unencrypted connections can face a wide range of eavesdroppers, all the way from other people sitting in the same coffee shop, to members of the same household, to employers providing a computer at work, to Internet service providers, to governments—anybody who can insert themselves between you and the website you're trying to visit.

With an encrypted connection, those eavesdroppers get only the domain of the site—in this case, medium.com—not which particular blogger or article you're reading. That makes for more privacy, in that particular reading habits are not as easily surveilled and analyzed.

Of course, the eavesdroppers also can't read the contents of the pages. In the case of news sites, like the Sarawak Report, that might seem like a moot point. After all, unlike private messages, the contents of the articles are visible for anyone who looks through the site. But taken together, these two properties mean that the government can't analyze individual pages in transit for keywords to trigger blocks.

As a result, governments seeking to block individual pages are forced to make much more conspicuous and disruptive moves against entire domains. On numerous occasions, we've seen those governments back away from wholesale censorship where granular censorship was not an option—in China, it was GitHub; in Iran, it was Google Reader (serving as a proxy for general news sites); and last summer in Russia, it was Wikipedia.

So it's important that sites turn on HTTPS by default. And some—though still far too few—have begun to do so. The Washington Post has started across some sections of its site. The New York Times made an impassioned call for news outlets to implement it by the end of 2015, but still hasn't made the transition. Sites like Techdirt, The Intercept, and EFF's own Deeplinks have long been HTTPS-only. The Freedom of the Press Foundation, which helps develop and fund tools to protect press freedom and reader privacy, has encouraged more news sites to follow suit.

Medium and the Sarawak Report have made a good choice in using infrastructure that is harder for would-be censors to subvert. For people affected by this local block, we recommend reading up on tools like Tor, which can be used to circumvent censorship and anonymize your traffic.


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Why Are Universities Fighting Open Education?

eff.org - Fri, 29/01/2016 - 04:31
A Tired Argument Over Software Patents Is Holding Up Common-Sense Reforms

In December, over 3,000 of you rallied in support in support of a proposed Department of Education (ED) policy that would make ED-funded educational resources a lot more accessible to educators and students around the world.

You weren’t the only ones: the Free Software Foundation, Creative Commons, Public Knowledge, the Software Freedom Conservancy, and numerous other pro-user groups spoke up. Together, we all sent a loud message: Team Internet is on the side of open education.

Browsing through all 147 comments, a pattern quickly emerges. Open web advocates, open education groups, and many education professionals all support the idea of ED-funded resources being shared widely under open licenses (though we might quibble on a few specific details). One group kept confusing us, though: universities. Why were some universities opposing a rule that would directly benefit their students and faculty?

When you dig a bit deeper, it looks like universities’ opposition to open licensing has nothing to do with students’ access to educational resources. What’s really playing out is a longstanding fight over how universities use patents—more specifically, software patents. Open education just happens to be caught in the crossfire.

Open Licensing Mandates Make Sense

Under ED’s proposed policy, those who receive grants from ED would be required to share the educational resources they create under an open license. If ED funds your work, you must share it under a license that allows anyone to use, edit, and redistribute it. The proposal doesn’t name a specific license, but the wording is clearly referring to the Creative Commons Attribution license (CC BY), which most people consider the standard for open educational resources. For software, the license would also have to let people access and modify the source code.

The proposal is a huge step in the right direction. The Executive Branch funds billions of dollars’ worth of copyrighted content through various departmental grant programs. Those grants are intended to benefit the public, but most of the public rarely even sees the results, let alone uses them. We’d love to see the proposed policy become a model for similar rules at other government agencies or even an across-the-board federal mandate.

The proposed policy also doesn’t disadvantage grantees as much you might think. In the notice, the Department of Education pointed out that relatively few grantees sell or license their grant-funded materials to third parties. It could even give an additional benefit to the grantees that do sell their educational materials: the rule change would provide them with a selection of openly licensed educational works to supplement their own (the majority of which aren’t commercially available elsewhere).

The Association of American Universities (AAU), the Association of Public Land-grant Universities, the Association of University Technology Managers, and the Council on Governmental Relations published a statement in opposition to the rule change, and a handful of schools have recycled their talking points.

As Lindsey Tepe points out in Forbes, the comments reflect a divide within colleges. Many universities’ leadership opposes the rule change, but university research libraries almost unanimously support it. It makes us wonder whether schools are getting advice from the right people on campus.

Software Patents Ruin Everything

The AAU statement questions “whether the Department has the legal authority under 35 USC 212 to issue a requirement to openly license all computer software source code developed with grant funds.” This is a reference to a law enacted in 1980, commonly known as the Bayh-Dole Act. Before Bayh-Dole, universities couldn’t apply for patents for inventions created using federal funding; instead, the government itself was responsible for patenting federally funded inventions [.pdf]; when it did so, it would only let others use them under nonexclusive licenses.

After Bayh-Dole, a whole industry of university tech transfer offices began to appear. Each tech transfer program has its own policies—some are more flexible and friendly to the inventors’ wishes than others—but they all ostensibly exist to sell or license faculty inventions to third parties. Some of them also assert their patents directly, as the University of Wisconsin-Madison did in its recent suit against Apple.

It’s important to note here that the ED proposal doesn’t touch patents at all. Since the proposal covers software, it’s possible that grantees might want to apply for patents for a few of the works covered under the policy. But there’s nothing in the proposal to stop them from doing that: not every open source license that would comply with the policy requires that creators give up patent assertion rights.

It’s not surprising—though it is disappointing—to see lobbying organizations representing tech transfer opposing open education policies. Those same organizations have been familiar names in the patent debate for a long time, working against reforms that would limit patent owners’ ability to bring frivolous lawsuits against innovators.

In essence, their stance has been that any reform that makes patent litigation less lucrative for plaintiffs will also curb universities’ ability to monetize their patents. They don’t say this, but history would suggest that they’re interested in protecting the value of software patents for whoever the highest bidder is, even if that’s an unsavory entity.

Though universities tout technology transfer as a way to fund further education and research, the reality is that the majority of tech transfer offices lose money for their schools. At most universities, the tech transfer office locks up knowledge and innovation, further expands the administration (in a sector that has seen massive growth in administrative jobs while academic hiring remains flat), and then loses money.

Here’s the underlying problem: again and again, university tech transfer offices want to have it both ways. They insist that their directive isn’t to make money; it’s to use the market to bring their inventions to the world quickly and at scale. But they—or the lobbyists representing them—oppose the very reforms that would stimulate innovation, not slow it down. These reforms are aimed squarely at patent trolls, companies that exist for no other purpose than to amass patents and use them to demand money from innovators. University opposition is particularly frustrating given that it is purportedly on behalf of offices that are a net loss for most schools.

Does Your School Speak for You?

Let’s return to the Department of Education policy. We don’t think that a challenge to it under Bayh-Dole would be successful. The proposed rule doesn’t take away any of schools’ current rights under the law.

There is a potential risk that grantees could patent an ED-funded piece of software, share it under an open license, and then assert the patent against licensees, essentially creating a trap for licensees. ED could help solve that problem by requiring that the university include a disclosure of any relevant patents alongside the license.

Realistically, though, we’re talking about very rare cases here. The vast majority of works that ED funds aren’t (and shouldn’t be) patentable. It’s frustrating that software patents are the issue that’s holding up a common-sense policy change.

On the other hand, this argument will continue to come up every time we talk about open licensing mandates for publicly funded works—including, hopefully, ones in departments that fund a lot more tech than ED does. Let’s get it right this time.

The public should be free to use publicly funded works without copyright, software patents, or any other entanglements getting in the way. A strong open licensing policy at ED—without any sort of carveout for software—will set the right standard for future Executive Branch licensing mandates.

When schools consistently oppose policies that stimulate open access and innovation—and when the drivers of that opposition contribute very little to those schools’ academic lives or financial sustainability—students and faculty should start asking why.


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25 Civil Liberties Organizations Call for Open Hearings on Section 702 Surveillance

eff.org - Thu, 28/01/2016 - 08:16

The House Judiciary Committee has plans for a “members only” meeting next week to discuss Section 702 of the FISA Amendment Acts, the law the NSA relies on to operate its notorious PRISM surveillance program and to tap into the backbone of the Internet, also known as “upstream” collection.

While we wish that “members only” meant that Congressional watchdogs would all don vintage jackets from the 1980s while reining in the NSA, the sad truth is that our elected representatives are once again cutting out the public from an important debate over mass surveillance.

Today, EFF joined two dozen civil liberties, human rights, and transparency organizations in sending a letter to House Judiciary Leaders demanding that they open the hearing, at least in part, to the public.

Here’s the text of the letter

Dear Chairman Goodlatte and Ranking Member Conyers,

The undersigned organizations appreciate the promise you made during the debates on USA Freedom to hold hearings on Section 702 of the Foreign Intelligence Surveillance Act. We believe that robust congressional oversight of the implementation of this statute, which is used to acquire the communications of Americans and people around the world alike without a warrant, is critical. We were surprised when we recently learned that you may soon hold a hearing in a classified format, outside of public view. Doing so for the entirety of the hearing neither fully satisfies the promise to hold hearings nor permits the public debate that this nation deserves. Rather, it continues the excessive secrecy that has contributed to the surveillance abuses we have seen in recent years and to their adverse effects upon both our civil liberties and economic growth.

All congressional proceedings should be conducted in accordance with this country’s highest principles of transparency and openness. Indeed, no committee should ever hold a classified hearing or briefing, when it can hold all or part of the hearing as an open, unclassified session. The Intelligence, Armed Services, and the Judiciary Committees of both chambers have been able to hold open hearings on matters of national security, deferring only those questions that require classified answers into a closed hearing. This judicious use of closed sessions meets the dual purposes of providing robust oversight and protecting national security.

In the case of Section 702 implementation oversight, a completely closed hearing is unnecessary to provide members with an adequate understanding of how the law is currently implemented by the executive branch and whether that exceeds Congress' original intent.

As you know, when the FISA Amendments Act was written, the deliberations happened largely in open session. Subsequently, executive branch officials have testified about the act in open session on at least six occasions1 since it was written.

The Privacy and Civil Liberties Oversight Board has published an unclassified report on the implementation of the statute. The government has itself declassified numerous relevant documents, including legal analyses and judicial interpretations. And, following the Snowden disclosures, the Senate Judiciary Committee held several public hearings on NSA surveillance programs, which included discussion of Section 702.

In today's global communications environment, disclosures of information about how Section 702 operates have confirmed the validity of many of the public’s and civil society's concerns that this statute implicates the privacy rights of millions of people in the US and around the world who communicate with friends and colleagues abroad, including human rights activists who rely on secure communications for their safety. The way Section 702 is utilized also affects journalists who interact with confidential sources to report on issues in the public interest, and criminal defendants whose prosecutions may involve the use of evidence derived from intelligence surveillance.

In all of these circumstances and many more, it is up to Congress to ensure that the Administration is not violating the rule of law and the rights we all hold dear.

We urge you to change the designation of your upcoming session on Section 702 to “open,” consistent with Congress's constitutional oversight role, long standing congressional practice, and principles of transparency and justice. To the extent that the committee goes forward with the closed hearing, we urge you to fulfill your prior commitment by promptly holding public hearings, which include representation and engagement of privacy, civil liberties, and human rights organizations. 

... 

Sincerely,

Access Now

American-Arab Anti-Discrimination Committee (ADC)

American Civil Liberties Union

American Library Association

Amnesty International USA

Brennan Center for Justice

Californians Aware

Center for Democracy &Technology

Constitutional Alliance

The Constitution Project

Cyber Privacy Project

Electronic Frontier Foundation

Electronic Privacy Information Center (EPIC)

Essential Information

Fight for the Future

Free Press Action Fund

Government Accountability Project

Human Rights Watch

National Coalition Against Censorship

National Security Archive

New America’s Open Technology Institute

Niskanen Center

OpenTheGovernment.org

Project On Government Oversight

Reporters Committee for Freedom of the Press

Restore The Fourth

R Street Institute

For more on Section 702, check out how the government uses Section 702 for mass surveillance.

Related Cases: Jewel v. NSAFirst Unitarian Church of Los Angeles v. NSA
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Data Privacy Day: Take Charge of Your Family’s Privacy

eff.org - Thu, 28/01/2016 - 04:55

Thursday, January 28, is Data Privacy Day—a day dedicated to promoting and raising awareness of privacy and data protection around the globe. It commemorates the January 28, 1981 signing of Convention 108, the first legally binding international treaty dealing with privacy and data protection. And it’s a great day to take charge of not only your own privacy, but also the privacy of any school children in your life.

We recently launched Spying on Students—an online resource dedicated to helping students, parents, teachers, and school administrators learn more about the privacy issues surrounding school-issued devices and cloud services. The website—part of our new campaign to promote student privacy—provides useful guides for adjusting privacy settings on mobile devices. It also answers common questions about the legal and technological landscape regarding student privacy and offers suggestions on how you can connect with other concerned parents.

As we reported last week, our student privacy campaign—including the complaint we filed with the Federal Trade Commission (FTC) about Google’s unauthorized collection of personal information from school children via Chromebooks and Google Apps for Education (GAFE)—caught the attention of Senator Al Franken, a ranking member of the Senate Judiciary Subcommittee on Privacy, Technology and the Law. He responded by writing a letter to Google CEO Sundar Pichai asking for information about GAFE’s privacy practices.

But for our student privacy campaign to succeed, we need the support of parents. On this Data Privacy Day, take the time to check out the resources we’ve compiled and regain control of your children’s privacy. And spread the word about student privacy by sharing our resources with other parents.

It’s critical that parents understand their, and their children’s, rights—especially in a world where parents may be asked by schools to waive those rights before their youngsters are permitted to use technology in the classroom. We’ve even seen third parties encourage parents to give schools consent to release their children’s information to those very third parties. Recently, in Utah, the United Way of Salt Lake City partnered with other local organizations on a campaign to do just that—i.e., encourage parents to sign forms consenting to the disclosure of student information to outside organizations. The Family Educational Rights and Privacy Act (FERPA) requires school to get such parental consent before disclosing student information to third parties. But before signing such a form, parents should know exactly what they are agreeing to, consider all their options, and make informed choices. Ads like the United Way’s—which direct parents to simply sign any consent forms that a school might send home and which are sponsored by third parties rather than the school—inappropriately discourage parents from seeking all the information they need.  

As part of our student privacy campaign, we also launched a nationwide survey to collect information from parents and other concerned individuals regarding the practices and disclosure policies of K-12 schools. We’ve heard from hundreds of parents, but we still need help to collect even more useful information about what’s happening on the ground in schools across the country. Join the fight to protect student privacy by filling out our survey today.


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The Case of the Missing Comma: Why Congress Must Fix FOIA’s Law Enforcement Exemption

eff.org - Wed, 27/01/2016 - 07:17

As Congress considers big changes to the Freedom of Information Act, a court’s decision on Monday underscores how some of the best ways to fix the ailing transparency statute are really small—like adding a comma.

Last fall in Naji Hamdan v. U.S. Department of Justice, the U.S. Court of Appeals for the Ninth Circuit read the lack of a comma in FOIA’s law enforcement exemption to limit public access to investigatory techniques and procedures.

EFF thought that decision was wrong, both because it misread FOIA’s text and legislative history and because it emphasized technical form over the statute’s goal of ensuring robust access to government records.  We filed a brief asking the court to reconsider its decision, but the court denied the effort in a summary opinion on Monday.

For Mr. Hamdan, the denial means that an American citizen may never learn the extent to which law enforcement and national security agencies knew about or were otherwise complicit in his detention and torture abroad. For the broader public, however, the decision could result in greater secrecy surrounding law enforcement’s use of controversial investigatory techniques and procedures.

Court Vexed by the Absence of a Comma

Like many laws, the text of FOIA tries to distill abstract principles—in this case, government transparency—into plain English that the public, government agencies, and courts can apply to particular cases. Just like any writing, however, statutes can suffer from poor drafting, bad grammar, and incorrect punctuation that courts must then parse.

This issue was front and center in Hamdan, as the court had to decide how to interpret FOIA Exemption 7(E), which allows agencies to withhold law enforcement records that:

would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law

Courts have interpreted the exemption in two ways. The first interpretation, which EFF believes is the right one, reads the entire sentence as being subject to the last clause that states "if such disclosure could reasonably be expected to risk circumvention of the law." In other words, records concerning both "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions" can only be withheld if "disclosure could reasonably be expected to risk circumvention of the law."

Courts following this interpretation have required agencies to show that the particular techniques and procedures at issue in the FOIA request would, if disclosed, potentially give lawbreakers a roadmap on how to evade law enforcement or otherwise break the law.

The second interpretation, which the Ninth Circuit adopted in Hamdan, starts by noting that there is a comma between "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions." Because of that comma, the courts reason, the two categories of records are distinct. Next, the courts note that there is no comma between "guidelines for law enforcement investigation or prosecutions" and the phrase "if such disclosure could reasonably be expected to risk circumvention of the law."

Under this interpretation, the Hamdan court reasoned that because there is no comma between the circumvention risk clause, and because Exemption 7(E) treats "techniques and procedures" and "guidelines" as two distinct categories of records, the circumvention risk clause applies only to the "guidelines" category of records. Or, to put it another way, the lack of a comma in the second half of the exemption means that "techniques and procedures" can be withheld without agencies having to show that "disclosure could reasonably be expected to risk circumvention of the law."

Confused? So were we. The upshot of the Hamdan court’s intense focus on punctuation (or the lack thereof) means that law enforcement agencies no longer have to explain why particular investigatory techniques and procedures should remain secret. Instead, agencies can just withhold them.

A Comma Will Dispel the Confusion

We think the court’s ruling was wrong, particularly given the history of Exemption 7(E) and FOIA’s guiding principles that presume all records are public and that the exemptions should be read narrowly.

That said, if the lack of a comma led to the absurd result in Hamdan, Congress could insert a comma into Exemption 7(E) (as seen below in red brackets) to reverse the decision and require agencies to once again justify their withholding of investigatory techniques and procedures. The statute would thus read as permitting law enforcement to withhold records that:

would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions[,] if such disclosure could reasonably be expected to risk circumvention of the law

The comma would dispel ambiguity that the circumvention risk requirement applies to both categories of records described in Exemption 7(E). Agencies would thus have to provide a justification for withholding investigatory techniques and procedures.

The comma fix would still allow agencies to withhold legitimate techniques and procedures that might actually cause criminals to evade investigations—it just would not allow them to blithely assert Exemption 7(E).

We think the comma fix is one of the easiest changes Congress can make as it is considering a large overhaul of FOIA. That’s why we’ve included it in the list of amendments we’d like the Senate add to the current bill. It’s not a monumental change to FOIA, but it’s an important one that helps restore the public’s right to know what its government is doing.


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Hacking the Patent System: Improved, Expanded Guide to Patent Licensing Alternatives

eff.org - Wed, 27/01/2016 - 03:54

We're pleased to announce the 2016 edition of Hacking the Patent System, a guide to alternative patent licensing produced by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF and Engine. First published in 2014, the guide provides a high-level overview of several tools that inventors and innovators could use to avert unnecessary and costly patent litigation (or at least to avoid trollish behavior themselves).

The tools we cover fall roughly into three categories: defensive patent aggregators, defensive patent pledges, and insurance. Generally speaking, defensive aggregators use the pooled resources of member companies to purchase patents that may otherwise have been purchased by trolls. These include organizations such as Allied Security Trust, RPX, and Unified Patents.

Defensive patent pledges involve commitments to only use patents defensively or to assert one’s patents only under certain circumstances. Some pledges create a sort of demilitarized zone for patents: for example, when a company signs onto the Defensive Patent License (DPL), it promises not to offensively assert its patents against other company that has also agreed to the DPL. Other pledges place limits on the patent owner’s ability to sue anyone for infringement. For example, Twitter’s Innovator’s Patent Agreement involves a guarantee to employees that if they assign an invention to Twitter, the patent on that invention will not be used to sue anyone offensively without the inventor’s permission.

For this edition, we’ve added a new section on patent litigation insurance. This insurance is exactly what the name implies: customers pay a fee in order to receive legal assistance if and when they are threatened or sued by a patent owner. Although patent litigation insurance has existed in some form for several years, it has become increasingly popular as of late. In October, defensive patent aggregator Unified Patents launched an optional insurance plan for its members at a much lower premium than other insurance offerings, making it a viable option for startups.

Another big change since 2014 is the rise in companies making public commitments to open their patent portfolios to the public. Shortly after the first edition of Hacking the Patent System, Tesla made waves with its commitment to use its patents only defensively; since then, several other companies have followed suit (with various strings attached). We’ve added a new section on these individual pledges.

Patent hacking isn’t a substitute for patent reform. These hacks help keep some patents out of the hands of trolls but they don’t come close to preventing all the harms caused by software patents. As long as the flood of software patents continues, some will end up in the hands of trolls and other bad actors. While we applaud the rise in open patent licensing, we will continue to push for reforms to make the patent system into the engine of innovation that it should be.

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"No Cost" License Plate Readers Are Turning Texas Police into Mobile Debt Collectors and Data Miners

eff.org - Wed, 27/01/2016 - 03:35

Vigilant Solutions, one of the country’s largest brokers of vehicle surveillance technology, is offering a hell of a deal to law enforcement agencies in Texas: a whole suite of automated license plate reader (ALPR) equipment and access to the company’s massive databases and analytical tools—and it won’t cost the agency a dime.

Even though the technology is marketed as budget neutral, that doesn’t mean no one has to pay. Instead, Texas police fund it by gouging people who have outstanding court fines and handing Vigilant all of the data they gather on drivers for nearly unlimited commercial use.

ALPR refers to high-speed camera networks that capture license plate images, convert the plate numbers into machine-readable text, geotag and time-stamp the information, and store it all in database systems. EFF has long been concerned with this technology, because ALPRs typically capture sensitive location information on all drivers—not just criminal suspects—and, in aggregate, the information can reveal personal information, such as where you go to church, what doctors you visit, and where you sleep at night.

Vigilant is leveraging H.B. 121, a new Texas law passed in 2015 that allows officers to install credit and debit card readers in their patrol vehicles to take payment on the spot for unpaid court fines, also known as capias warrants. When the law passed, Texas legislators argued that not only would it help local government with their budgets, it would also benefit the public and police. As the bill’s sponsor, Rep. Allen Fletcher, wrote in his official statement of intent:

[T]he option of making such a payment at the time of arrest could avoid contributing to already crowded jails, save time for arresting officers, and relieve minor offenders suddenly informed of an uncollected payment when pulled over for a routine moving violation from the burden of dealing with an impounded vehicle and the potential inconvenience of finding someone to supervise a child because of an unexpected arrest. 

The bill was supported by criminal justice reform groups such as the Texas Criminal Justice Coalition, but it also raised concerns by respected criminal justice blogger Scott Henson of Grits For Breakfast, who theorized that the law, combined with ALPR technology, could allow police officers to “cherry pick drivers with outstanding warrants instead of looking for current, real-time traffic violations.”

He further asked:

Are there enough departments deploying license plate readers to cause concern? Will they use them in such a fashion? How will anyone know? Is it possible to monitor—or better, measure—any shift in on-the-ground police priorities resulting from the new economic incentives created by the bill?

As it turns out, contracts between between Vigilant and Guadalupe County, the City of Orange, and the City of Kyle in Texas reveal that Henson was right to worry.

The “warrant redemption” program works like this. The agency is given no-cost license plate readers as well as free access to LEARN-NVLS, the ALPR data system Vigilant says contains more than 2.8-billion plate scans and is growing by more than 70-million scans a month. This also includes a wide variety of analytical and predictive software tools. Also, the agency is merely licensing the technology; Vigilant can take it back at any time. 

The government agency in turn gives Vigilant access to information about all its outstanding court fees, which the company then turns into a hot list to feed into the free ALPR systems. As police cars patrol the city, they ping on license plates associated with the fees. The officer then pulls the driver over and offers them a devil’s bargain: get arrested, or pay the original fine with an extra 25% processing fee tacked on, all of which goes to Vigilant.1 In other words, the driver is paying Vigilant to provide the local police with the technology used to identify and then detain the driver. If the ALPR pings on a parked car, the officer can get out and leave a note to visit Vigilant’s payment website.

But Vigilant isn’t just compensated with motorists’ cash. The law enforcement agencies are also using the privacy of everyday drivers as currency.

From Vigilant Solutions contract with City of Kyle

Buried in the fine print of the contract with Vigilant is a clause that says the company also get to keep a copy of all the license-plate data collected by the agency, even after the contract ends. According the company's usage and privacy policy, Vigilant “retains LPR data as long as it has commercial value.” Vigilant can sell or license that information to other law enforcement bodies and potentially use it for other purposes. (See clarification at bottom.)

In early December 2015, Vigilant issued a press release bragging that Guadalupe County had used the systems to collect on more than 4,500 warrants between April and December 2015. In January 2016, the City of Kyle signed an identical deal with Vigilant. Soon after, Guadalupe County upgraded the contract to allow Vigilant to dispatch its own contractors to collect on capias warrants.

Update: Buzzfeed has published an in-depth report on how police in Port Arthur, Texas also use Vigilant Solutions ALPR technology to collect fines. 

Alarmingly, in December, Vigilant also quietly issued an apology on its website for a major error:  

During the second week of December, as part of its Warrant Redemption Program, Vigilant Solutions sent several warrant notices – on behalf of our law enforcement partners – in error to citizens across the state of Texas. A technical error caused us to send warrant notices to the wrong recipients. 

These types of mistakes are not acceptable and we deeply apologize to those who received the warrant correspondence in error and to our law enforcement customers.

Vigilant is right: this is not acceptable. Yet, the company has not disclosed the extent of the error, how many people were affected, how much money was collected that shouldn’t have been, and what it’s doing to inform and make it up to the people affected. Instead, the company simply stated that it had “conducted a thorough review of the incident and have implemented several internal policies.”

We’re unlikely to get answers from the government agencies who signed these contracts. To access Vigilant’s powerful online data systems, agencies agree not to disparage the company or even to talk to the press without the company’s permission:

From Vigilant Solutions LEARN-NVLS User Agreement

You shall not create, publish, distribute, or permit any written, electronically transmitted or other form of publicity material that makes reference to the LEARN LPR Database Server or this Agreement without first submitting the material to Vigilant and receiving written consent from Vigilant thereto…

You agree not to use proprietary materials or information in any manner that is disparaging. This prohibition is specifically intended to preclude you from cooperating or otherwise agreeing to allow photographs or screenshots to be taken by any member of the media without the express consent of LEARN-NVLS. You also agree not to voluntarily provide ANY information, including interviews, related to LEARN products or its services to any member of the media without the express written consent of LEARN-NVLS.

You might very well ask at this point about the legality of this scheme. Vigilant anticipated that and provided the City of Kyle with a slide titled “Can I Really Do This?” which cited a law that they believe allows for the 25% surcharge.

The law states that a county or municipality “may only charge a fee for the access or service if the fee is designed to recover the costs directly and reasonably incurred in providing the access or service.” 

We believe that a 25% fee is not reasonable and doesn’t recover just the direct costs, since the fee is actually paying for the whole ALPR system, including surveillance capabilities unrelated to warrant redemption, such as access to the giant LEARN-NVLS database and software suite.

Beyond that, the system raises a whole host of problems:

  • It turns police into debt collectors, who have to keep swiping credit cards to keep the free equipment.
  • It turns police into data miners, who use the privacy of local drivers as currency.
  • It not-so-subtly shifts police priorities from responding to calls and traffic violations to responding to a computer’s instructions.
  • Policy makers and the public are unable to effectively evaluate the technology since the contract prohibits police from speaking honestly and openly about the program.
  • The model relies on debt: there’s no incentive for criminal justice leaders to work with the community to reduce the number of capias warrants, since that could result in losing the equipment.
  • People who have committed no crimes whatsoever have their driving patterns uploaded into a private system and no opportunity to control or watchdog how that data is disseminated. 

There was a time where companies like Vigilant marketed ALPR technology as a way to save kidnapped children, recover stolen cars, and catch violent criminals. But as we’ve long warned, ALPRs in fact are being deployed for far more questionable practices.

The Texas public should be outraged at the terrible deals their representatives are signing with this particular surveillance contractor, and the legislature should reexamine the unintended consequences of the law they passed last year.

Update January 28, 2016: We have updated this piece to include the City of Orange's contract with Vigilant Solutions. 

Clarification January 28, 2016: We originally stated that data collected under this program may be sold "potentially to private companies such as insurance firms and repossession agencies." Vigilant generally agrees in its contracts and policies that ALPR data collected by law enforcement agencies will only be shared with (i.e. sold to) other law enforcement agencies. However, data collected by Vigilant directly may be shared for a variety of purposes, including insurance and repossession. We used the word "potentially" because it gets murky when it comes to ALPR systems licensed to law enforcement that are not the property of the agency, but rather are Vigilant's property attached to a police vehicle. Vigilant's contract with the City of Kyle, for example, allows Vigilant to use the data "in accordance with, and pursuant to, a permissible purpose set forth under the federal Drivers Privacy Protection Act (DPPA)." The DPPA includes many permissible purposes, such as insurance purposes and or private investigations, but it also usually only regulates vehicle registration data, the information that would allow you to connect a name or addresses to license plates. Vigilant itself notes in its materials that DPPA regulates connecting personal information to a license plate, but argues LPR data on its own is fair game because "there is no reasonable expectation of privacy." It's also unclear how Vigilant treats data collected by Vigilant employees and contractors on behalf of law enforcement agencies, as is the case in Guadalupe County. Vigilant's policies also allow the company to retroactively change its usage rules at anytime. 

  • 1. The contracts are inconsistent on how this fee breaks down. For example, the City of Kyle contract lists 5% of "credit card processing," 5% for "credit card handling," and 15% for a "vendor transaction fee."
Related Cases: Automated License Plate Readers- ACLU of Southern California & EFF v. LAPD & LASDAutomated License Plate Readers (ALPR)
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So What About Those Phone Records Now? EFF Writes to FISA Court

eff.org - Tue, 26/01/2016 - 10:48

Now that the mass collection of telephone records by the NSA under Section 215 of the Patriot Act has ended due to the passage of USA Freedom, the question has arisen: what should the NSA do with the big mass of records that it already has? The secret FISA Court recently asked the government what it thinks should happen, and EFF sent a letter to the FISA Court (by way of the Department of Justice, asking that it be conveyed to the Court) giving our perspective.

EFF, and our clients, are in the thick of these questions because of our two pending cases, Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA. In both cases, we sought not only the end of the mass telephone records program, but also a remedy for the past 14 years that the records were illegally collected. In both cases, we have orders from the court requiring the government to preserve relevant evidence, including our clients' call records.

We sued to stop the government from collecting the records in the first place, so we would obviously like to see those records destroyed as soon as possible, even as our lawsuits continue.

But here’s where it gets weird. The government continues to maintain that, despite the admitted "mass" nature of the telephone records collection, no one (other than Verizon Business customers during a three month window in 2013) can sue because they do not have sufficient proof that their records were actually collected.1

Seriously. Even after a two-year, public debate about NSA surveillance and Congressional action about the mass telephone records program. Even after the President, other members of the executive branch, Congress, the press, and the public fully and freely discussed the fact that the government was gathering the records of millions of Americans. After all that, the government continues to claim that there's still not enough publicly known to demonstrate "standing" to sue.

So what to do? In our letter, we explained to the secret FISA court that we are willing to discuss options that will allow destruction of the records in ways that still preserve our ability to prosecute the cases. In fact, we've offered to do that since March, 2014, when the question of evidence preservation in the phone records cases first came up. But, so far, the government has been unwilling to seriously discuss options.

The government appears to want us to agree to let them destroy the best evidence proving that millions of Americans were illegally monitored without agreeing to a plan that would allow the legality of that collection to be considered by a court. We can't and won't do that, of course. But we know there are practical ways to preserve judicial review without requiring the government to keep the illegally collected records of millions of innocent Americans.

We hope the FISA court will require the government to get serious about a plan to actually destroy the phone records—including those still lingering in its various databases—while ensuring that the courts can still consider our constitutional challenge to 14 years of NSA telephone records collection from millions of innocent Americans.

  • 1. And the government has even challenged the standing to sue of those Verizon Business subscribers in our cases.
Related Cases: Jewel v. NSAFirst Unitarian Church of Los Angeles v. NSA
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No One Owns The Law. Everyone Owns The Law.

eff.org - Tue, 26/01/2016 - 08:49

Last week, as part of EFF’s annual Copyright Week, we wrote about the need for transparency in creating copyright restrictions in the international arena. As a current legal battle shows, however, it is equally important that copyright restrictions not interfere with transparency and open access to the law itself.

In a democracy, no one owns the law—or to put it another way, everyone owns the law. If a judge claimed that she should be paid a toll every time someone copied a passage from one of her decisions, we would find it absurd. If the lobbyist who wrote sections of your city’s business code announced he could decide, at any time, to sharply limit public access to those sections, he would be run out of town. The right to read the law—and just as important, the right to copy, discuss, and share the law—is essential to the rule of law itself.

But six huge industry associations are trying to undermine that principle, insisting that it doesn’t apply to a growing category of law: laws that began as private standards but are later incorporated into federal and state regulations. Insisting that they own a copyright in these laws, they’ve joined forces to stop a tiny non-profit, Public.Resource.Org, from posting them online.

Public Resource has a simple and important mission: to make government more accessible, including the law. Along with documents like tax filings and government-produced videos (check out the famous 1951 “duck and cover” film here), Public Resource posts federal rules about safety and product design that are initially created through private standards development organizations (SDOs) and later incorporated into federal and state laws. In 2013, three SDOs sued Public Resource, claiming that only they have the right to say who can copy dozens of standards incorporated into law, and at what price. These are some of the most important laws governing our daily lives and the safety of the buildings and products we encounter, yet copies are expensive to obtain. And while the SDOs put some of the standards online, they load up their sites with registration requirements, copy restrictions, and difficult user interfaces in a deliberate attempt to make the sites hard to use.

In 2014, three more SDOs sued Public Resource over a standard for designing tests. That standard is part of the U.S. Department of Education’s rules for handing out billions of dollars in financial aid for students, yet the groups that published it make it hard to find and buy, in order to boost sales of a new edition. It’s not available online anywhere right now, so finding out what the law is means tracking down an increasingly rare used copy.

Copyright cannot trump the essential public interest in accessing and sharing the law.  So this winter, EFF and attorneys at Fenwick & West are fighting back, asking the U.S. District Court for the District of Columbia to rule that Public Resource has the right to put these important laws online in standard formats, free of copy protections and cumbersome user interfaces. Other courts, including the Supreme Court, have long since declared that no one owns the law. We hope this court will do the same.

The Roman emperor Caligula published his tax laws only in narrow places, in very small letters, to prevent his subjects from actually being able to read them. While standards development organizations have nobler goals than those of a famously corrupt emperor, deliberately making the law more difficult for ordinary people to find, read, and discuss is still a big problem for our democracy. If we must all abide by the law—including the law of building safety, product safety, energy efficiency, and high-stakes testing—then we must all have the ability to access it freely, without fees or restrictions.

Related Cases: Freeing the Law with Public.Resource.Org
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EFF to Court: Accessing Cell Phone Location Records Without A Warrant Violates the Constitution

eff.org - Tue, 26/01/2016 - 03:35
Citizens Rightfully Expect Privacy in Data That Reveals Their Whereabouts

Chicago—The Electronic Frontier Foundation (EFF) is urging a federal appeals court in Chicago to rule that police need a warrant to access cell phone location records that can reveal our everyday travels—when we leave home, where we go and whom we visit.

In an amicus brief filed Friday in the United States Court of Appeals for the Seventh Circuit, EFF, the American Civil Liberties Union (ACLU), and ACLU of Wisconsin said cell phone location information—data that show where our phones are at a given time and date—generates a comprehensive picture of a person’s movements. Because we carry our phones with us wherever we go, these data can reveal intensely personal information like when we see the doctor, attend a political meeting, or visit friends. Americans have the right to expect that this information remain private and beyond the reach of law enforcement officers unless they first obtain a search warrant.

In this case, U.S. v. Patrick, a Wisconsin man was charged with being a felon in possession of a weapon. Police tracked the man down in real time using location information from his cell phone—obtained either from a phone company or possibly collected using a cell-site simulator, devices known as Stingrays that trick mobile phones into connecting with them. He was located in a car where a gun was found at his feet and arrested. In the brief filed Friday, EFF and the ACLU explain to the court that real-time cell phone location tracking violates the Fourth Amendment’s prohibition against unreasonable search and seizures.

“This is the first time this federal appeals court, whose rulings affect Illinois, Wisconsin and Indiana, is considering whether citizens have an expectation of privacy in real-time cell phone location records,’’ said EFF Senior Staff Attorney Jennifer Lynch. “This case comes as we are seeing a groundswell of recognition that this information is private. Legislatures in the three states covered by the Seventh Circuit have all now prohibited warrantless real-time cell phone. California and at least eight other states also require warrants for real-time tracking.”

There have been conflicting rulings over this issue on the federal level. In 2014 the U.S. Court of Appeals for the Eleventh Circuit in Atlanta ruled that there’s no expectation of privacy in historical cell site location records, so police don’t need a warrant to get them, while the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, last year ruled the opposite.

The U.S. Supreme Court has already recognized that data about where we go can be incredibly revealing and that cell phones hold vast amounts of private information—potentially the sum of an individual’s private life. The court ruled that searching a cell phone found during an arrest and tracking a car using GPS now both require a search warrant.

“The Seventh Circuit should follow the Supreme Court’s lead and recognize that police shouldn’t have unfettered access to records that that can reveal our every move. Law enforcement must be required to get a warrant before accessing the vast amount of private information generated by cell phone location records,’’ said EFF Senior Staff Attorney Adam Schwartz.

Tags: Street Level SurveillanceStingraysCell-site simulatorscell site location informationContact:  JenniferLynchSenior Staff Attorneyjlynch@eff.org AdamSchwartzSenior Staff Attorneyadam@eff.org
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Transparent and Participatory Processes Are Vital to Creating Copyright Rules that Work for Everyone

eff.org - Sat, 23/01/2016 - 06:08

If copyright is to succeed in promoting the creation and dissemination of culture, then it needs to address the diverse needs of creators, fans, and critics. Copyright law achieves this in some jurisdictions through policies such as fair use, but more often than not it fails to address the concerns of anyone who isn't a copyright holder. Much of the blame for why copyright grows increasingly out of touch with how people experience culture lies with a lack of transparency in, and industry capture of, copyright policymaking.

Nowhere is this problem more apparent than in international trade agreements. For years, the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and other copyright industry groups have taken advantage of trade venues to pass copyright rules that would not otherwise survive public scrutiny. Trade negotiations have historically been closed in order to allow negotiators to discuss import tariffs and other market barriers to the trade of goods without political interference. However, the scope of issues covered by these deals have broadened significantly over the years. They have come to include policies on copyright, data transfers, telecommunications, and more. Even as trade agreements now cover all kinds of digital regulations that can affect how lawmakers can set domestic policy, the negotiations have remained entirely closed off from the public.

The most recent, glaring example of this is the Trans-Pacific Partnership (TPP) agreement. Only after more then seven years of negotiations was the official completed text of the trade agreement finally released for the public to see. Up to that point, only leaks revealed what was being discussed in the closed-door meetings. Meanwhile, Trade Advisory Committees, which consist of advisors for big corporations, had ample opportunity to view and comment on draft texts.

When we dug into the text last November, we were able to confirm that the U.S. Trade Representative (USTR) was correct in claiming that the TPP would not obligate the U.S. to reform its current copyright rules. But that's also exactly what's wrong with the deal: It threatens to elevate the harshest elements of the United States' current copyright rules as an international standard, forcing other countries to enact more extreme copyright policies—and potentially preventing the U.S. from considering necessary reform in the future.

This is how international plurilateral agreements and dozens of already-signed bilateral trade deals have come to contain the entertainment industry's wish list of copyright enforcement policies.

The USTR could have at least published portions of the agreement as they were being considered, so that we could have accurately conveyed to the trade agency how the TPP's copyright rules could do much more harm than good. If the USTR had simply invited experts to explain the pitfalls of the U.S. Digital Millennium Copyright Act (DMCA), which has created so many unintended negative consequences for people's freedom of expression, access to knowledge, and digital security, would they have set these rules into the TPP?

And yet despite our repeated calls to open up the text and enable public input into the process, the trade office stuck to their course and continued to give privileged access to a few influential industries. As you'd expect, that utterly skewed the agreement in these elite interests' favor. In the end, that meant that we had no choice but to do everything we could to stop the entire deal.

On February 4, representatives from all twelve TPP countries will convene in New Zealand to sign the agreement. Once it's signed it still has to get through ratification to go into effect, and each country has its own process. The TPP will enter into force either 60 days after all original signatories ratify it or, if that doesn't happen within two years, in April 2018 if at least six of the 12 countries accounting for 85 percent of the combined gross domestic product of the original signatories have ratified the agreement.

That's all to say that the fight isn't over. We can defeat the TPP if we can convince enough countries to reject it at this next stage. Making sure the U.S. Congress does not approve implementing legislation (aka ratification), will be key to stopping the momentum of the deal getting approved by the other TPP countries.

That's why we're asking people based in the U.S. to get in touch with their congressional representatives and urge them to reject the TPP when it comes up for a vote, or to at least call for a hearing over the digital provisions that undermine the public interest and user rights.

Meanwhile, EFF is looking to the bigger picture: assembling a meeting of experts from around the world who will meet in Brussels next week to craft concrete strategies to prevent the continued use of trade agreements to usurp democratic control over Internet-related rule making.

Defeating the TPP is about preventing bad copyright rules from becoming further entrenched as an international standard. But it's also about sending a message to policymakers loud and clear: If they are ever going to be serious about creating innovation policy that works for all, they have to get serious about transparency and democratic rule making. If they don't, they're going to continue to meet public opposition against illegitimate rules that sacrifice culture and knowledge for all, in the name of protecting powerful incumbent industries.

~

Take action now and call on your Congress members to hold congressional hearings about the contents of the TPP immediately, and demand that they reject the deal when the agreement comes up for an eventual ratification vote:

 
 

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.


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