The RightsCon summit is making its way back to Silicon Valley March 3-5, opening its doors to human rights experts, engineers, government representatives, and other activists from around the globe who will discuss solutions to human rights challenges. As such, a number of EFF staff members are looking forward to attending and speaking at the three-day conference, which is hosted by our friends at Access.
While EFF encourages you to attend as many RightsCon events as you can, be sure to catch the following:
Monday, March 3, 5:00PM – 6:15PM: The Web Women Want featuring Director for International Freedom of Expression, Jillian C. York
Tuesday, March 4, 12:00PM – 1:15PM: Policy Laundering: Hacking the International Innovation Policy Machine featuring Intellectual Property Director, Corynne McSherry and Global Policy Analyst, Maira Sutton
Tuesday, March 4, 12:00PM – 1:15PM: Watching the Observers: The Impact of Surveillance on Human Rights Documentarians and Journalists featuring Global Policy Analyst, Eva Galperin
Tuesday, March 4, 4:00PM – 5:00PM: Toward Accountability: Reflecting on ICT Industry Action to Protect Users Rights featuring International Director, Danny O’Brien
Tuesday, March 4, 5:15PM – 6:15PM: Demonstrate and Disobey: Protest and Civil Disobedience On and Offline featuring Staff Attorney, Hanni Fakhoury
Wednesday, March 5, 9:00AM – 10:15AM: Competition, Consumers and Trolls: Why You Should Care About Patents featuring Senior Staff Attorney, Julie Samuels
Wednesday, March 5, 10:30AM – 11:45AM: Privatized Enforcement and Corporate Censorship: The Future of Freedom of Expression featuring Director for International Freedom of Expression, Jillian C. York
Wednesday, March 5, 10:30AM – 11:45AM: Securing Justice Safely: Documenting, Distributing, and Adjudicating on Digital Human Rights Data featuring Senior Staff Attorney, Kurt Opsahl
Wednesday, March 5, 2:30PM – 3:45PM: Uncontrolled Surveillance: Regulation and the Export Controls featuring International Director, Danny O’Brien
Wednesday, March 5, 4:00PM – 5:15PM: Fire the Lawyers, Hire the Engineers! – A Debate featuring Legal Director, Cindy Cohn
Wednesday, March 5, 4:00PM – 5:15PM: Location, Location, Location: What Rights Should we Have Against Pervasive Location Tracking? featuring Senior Staff Attorney, Jennifer Lynch and Senior Staff Technologist, Seth Schoen
Aside from the aforementioned events, many members of the EFF staff will be attending RightsCon so be sure to say “hello!”
Click here to find the complete RightsCon program schedule.
Share this: || Join EFF
On back-to-back days this week, residents in Texas and Washington received some extra legal protection for the contents of their cell phones. These decisions, while only binding on law enforcement within each respective state, could play an important role on the ongoing debate on cell phone privacy specifically, and applying legal protections against unreasonable searches and seizures to new technologies generally.
Texas: a cellphone is not like a pair of pants or shoes
First, the Texas Court of Criminal Appeals ruled in State v. Granville that an inmate locked in jail maintained an expectation of privacy in the contents of his cell phone even when the phone was out of his custody and in the control of the jail guards. A Huntsville police officer arrested high-school student Anthony Granville on a misdemeanor charge, and he was locked up in jail. Three hours after his arrest, a different officer than the one who arrested him retrieved Granville's phone from the evidence locker and, without a warrant, looked through the contents of the phone for evidence of an unrelated crime.
The government attempted to justify the search by claiming that, similar to clothing worn by an inmate, once the phone was in the control of the jail officials, Granville no longer had any expectation of privacy in its contents. We filed an amicus brief explaining that a cell phone really isn't anything like a pair of pants given the immense amount of data stored on the phone, meaning that police needed to get a warrant to search it. The high court agreed with us, with Judge Cathy Cochran writing unequivocally:
[W]e conclude, as did the court of appeals, that a cell phone is not like a pair of pants or a shoe. Given modern technology and the incredible amount of personal information stored and accessible on a cell phone, we hold that a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because that cell phone is being stored in a jail property room.
Washington: A text message is like a phone call or letter
The next day, the Washington Supreme Court issued a pair of decisions in State v. Hinton and State v. Roden finding that police violated state law when, after seizing a cell phone from a suspect during a drug investigation, it monitored and responded to incoming text messages, arranging drug deals with defendants Hinton and Roden.
The state argued that neither Shawn Hinton or Jonathan Roden had an expectation of privacy in the text messages once they were sent to someone else's phone. Instead, the state argued both men had assumed the risk that their messages could be intercepted by someone else or that the person they thought they were communicating with was really someone else. EFF filed amicus briefs in both cases, explaining that the society's expectation that police won't intercept their phone calls or postal letters extends to the 21st century equivalent, the text message. The court agreed, ruling that police were unauthorized to intercept the conversation, noting that
unlike letters, which are generally delivered to the home where they remain protected from intrusion, text messages are delivered to a recipient's cell phone instantaneously and remain susceptible to exposure because of a cell phone's mobility. Just as subjecting a letter to potential interception while in transit does not extinguish a sender's privacy interest in its contents, neither does subjecting a text communication to the possibility of exposure on someone else's phone.
Cell phone privacy spreading across the country
These decisions come at a time when cell phone privacy is a hot topic in courts across the country and hopefully the strides made in Texas and Washington will be felt elsewhere. State courts are taking a more aggressive approach to safeguarding privacy than federal courts, especially when it comes to law enforcement searching and tracking cell phones. Last week, the Massachusetts Supreme Judicial Court ruled that police needed a search warrant to obtain historical cell site records from a cell phone provider. New Jersey's Supreme Court reached the same result last year. The Rhode Island Supreme Court heard argument in early February in State v. Patino, a case similar to Hinton and Roden, that involves whether a person has an expectation of privacy in text messages found on someone else's phone. State legislatures have been active too, with Maine and Montana passing legislation last year protecting cell phone location data, and Maryland and Wisconsin considering similar legislation this year. This week's decisions could also go a long way to bringing the law into the 21st century.
Most importantly, the topic of cell phone privacy will shortly be before the U.S. Supreme Court, which is considering two cases this term on whether police can search a person's cell phone incident to their arrest. The U.S. Supreme Court would be wise to follow the lead of Texas and Washington. This week's decisions both appreciated the breadth of data stored on a cell phone meant it was foolish to analogize to physical items like a pair of pants or old cases involving antiquated technologies. They rejected the false notion that the mere act of exposing a phone or text message to someone else gives the government free reign to intrude and search through the reams of data on a cell phone. Hopefully the U.S. Supreme Court will make the same conclusions, ensuring that the right to privacy in a cell phone isn't just a local right but a national one.Related Issues: PrivacySearch Incident to ArrestRelated Cases: Washington state text message privacy casesState v. PatinoState v. Granville
Share this: || Join EFF
EFF Asks For Court Records On Warner Brothers' Robo-Takedowns, As Congress Gets Ready To Hear Testimony About Copyright Enforcement Systems
This week, EFF asked a federal court in Florida to unseal records from the Disney v. Hotfile case describing Warner Brothers' system for sending takedown notices to websites. Warner, and the other plaintiffs in the case, want that information kept secret forever. But Congress is asking for input about the notice-and-takedown system created by the Digital Millennium Copyright Act, and a hearing is coming up soon. The Patent and Trademark Office is also holding public meetings on the DMCA. It'll be harder for the public to get involved in these conversations without knowing some basic information about how big copyright holders like Warner decide which files to target for takedowns. And copyright holders can't design their systems to comply with the law if basic parts of the court decisions that interpret the law are kept secret. That's why EFF asked the court to unseal these records.
Under the DMCA, copyright holders or their agents can send notices to Internet sites, declaring that some material posted by users infringes their copyright. The Internet site then has a legal incentive to take the material down, to avoid liability.(In practice, most sites respond to every DMCA notice by taking down the targeted content, even when the notices are improper.) Warner, like some other large media companies, uses some combination of web-crawling search robots and human review to find files that it claims are infringing its copyright, and then sending takedown notices to the sites that host the files.
Hotfile was a file-hosting site (a "cyberlocker") that was sued in 2011 by five major movie studios, including Warner Brothers. The studios claimed that Hotfile wasn't protected by the DMCA, and should be held responsible when Hotfile users posted infringing video files. Hotfile had set up a special Web interface for Warner to send takedown notices. Warner designed a system that apparently used robots to crawl through indexes of Hotfile content looking for movie files.
We don't know how Warner's robots work, or what they are programmed to look for. Warner claims it didn't entrust all of the copyright decisions to software, and there was some human review involved. But Hotfile accused Warner of using its system to take down files that merely had the same name as a Warner movie - even files that weren't video. And Hotfile also claimed that Warner was taking down copies of a free and open source program called JDownloader that Warner had no rights in, but simply didn't want the public to have. Judge Kathleen M. Williams looked at the evidence behind these accusations, and concluded that Warner might be liable under Section 512(f) of the DMCA. That section, which is also the basis of Stephanie Lenz's suit against Universal Music, prohibits copyright holders from sending takedowns without having a basis for believing that the material is infringing.
The court's decision meant that a jury could decide whether Warner was liable. But the parties settled on the eve of trial in November, and Hotfile shut down.
Judge Williams's decision was encouraging, but mysterious – we don’t get to see evidence of how Warner's system works and which of its improper DMCA takedown notices gave rise to liability. So we know that Warner may have crossed a line, but not how or why. Without seeing the facts that went into Judge WIlliams's decision, it doesn't help people design takedown systems that comply with the law, and it doesn't help anyone make informed arguments about the DMCA when Congress takes it up.
We can't do without informed debate. The House Judiciary Committee may hold a hearing on DMCA takedowns in early March. Lawmakers need to hear about how well the system is actually working, and whether it protects Internet users against having their speech curtailed by takedown-bots or overzealous and poorly trained reviewers. Actual data about major DMCA users like Warner is vital.
The courts are public institutions, and their proceedings should be open to the public as much as possible, according to our legal traditions and the First Amendment. We hope the Florida court will open its records on this this important issue.Related Issues: Fair Use and Intellectual Property: Defending the BalanceDMCARelated Cases: Disney v. Hotfile
Share this: || Join EFF
The European Commission's open consultation on copyright ends in less than a week on Mar. 5. It's a rare and important opportunity for anyone who uses the Internet— whether you are a student or artists, librarian or entrepreneur— to influence the future of innovation policy in the region.
The 80 question "Public Consultation on the Review of the EU Copyright Rules" can be dizzying to tackle on its own, but there are several easy-to-use platforms that can help anyone with navigating the survey.How to Submit Your Own Comments
- Let's Fix EU Copyright! — Choose from a list of categories that best describe you, and this site will give you a list of questions that may be relevant to your interests.
- Copywrongs.eu — Pick from a variety of activities and statements about your experience with copyright, and this site will select related questions for you to answer.
- Webform: Public Consultation on the review of the EU copyright rules — Use this form if you would like to answer any of the 80 questions. As you answer the questions, you can read other organizations' answers. When you're done, you can download your comments as a text document, and a pop-up will provide you with the address to email it to the European Commission.
- Przysz?o?? Prawa Autorskiego Konsultacje Europejskie —Modern Poland Foundation has created this platform to make it easy for Polish speakers to submit comments. You can answer one open-ended question about copyright, the 12 they have highlighted, or all 80 questions.
Digital rights organizations across the EU have submitted their own comments, addressing a wide range of restrictive copyright policies that afflict Internet users across the region. You can check out these various replies below:
- Copyright4Creativity, a coalition of groups, including EFF, who advocate for an EU policy of balanced copyright and exceptions, have published their response in PDF form.
- The French digital rights organization, Le Quadrature du Net, have published an English language version of its submission
- The Foundation for a Free Information Infrastructure have published its answers, connecting copyright to the goal of rewarding software development, and creating an open and free Internet.
- Finally, Swedish MEP Amelia Andersdotter gives a guide to the questionnaire and explains why this consultation matters.
Share this: || Join EFF
Export regulations on communication and educational technologies loosen for some sanctioned countries and not others—what gives?
With Coursera lifting restrictions for users of its online educational courses in Syria, but upholding restrictions for users in the sanctioned countries of Cuba, Iran, and Sudan, the need for streamlined communication technology policies for countries sanctioned by the U.S. is more necessary than ever.
Cuba, Syria, Sudan, North Korea, and Iran are all currently under heavy U.S. sanctions, which have a negative impact on what communications technologies individuals in these countries can access and use. EFF believes that all individuals should have the right to access technologies that facilitate communications. And the U.S. government recognizes the need to modify outdated sanctions that restrict vital communications and educational technologies from citizens living in U.S.-sanctioned countries. So what’s the problem?
The problem is that the U.S. government’s piecemeal approach to updating these sanctions is largely reactionary and ultimately prioritizes certain countries over others for reasons that are, to put it charitably, hard to discern.
For example, Iran recently received some relief. According to an article published by the Open Technology Institute, “the Treasury Department’s Office of Foreign Assets Control (OFAC) issued a revised General License D for Iran, clarifying a number of outstanding questions about the original license authorizing the export of hardware, software, and services that enable personal communications. The new General License D-1 replaces the May 2013 General License D, which allows companies to offer laptops, cell phones, anti-virus software, secure chat, and other tools to Iran despite comprehensive U.S. sanctions.”
So good for Iran, but why only them? Unfortunately, attempts by the Treasury and State Departments to clarify and reissue licenses in order to ameliorate confusing or unclear wording for licenses belonging to one sanctioned country leave citizens of other countries rightfully wondering why they don't receive similar treatment. OFAC never provides the basis for these relaxations, adding to the sense of unfairness.
Furthermore, even as the U.S. revises some sanctions regimes in favor of free flow of information, the disjointed way this occurs leaves many U.S. companies on the defensive—since the rules change depending on the recipient country and the penalties are so severe, companies overblock or otherwise restrict access to their products and services in order to protect themselves from liability. So the relaxation of sanctions doesn't even help those who it is intended to help. As OTI points out: “The Treasury and State Departments have previously struggled to entice U.S. companies to take advantage of existing authorizations, despite four attempts to revise and expand them since 2009.”
To fix this, the U.S. should stop the piecemeal. Any modifications to sanctions should make it easier for American companies to confidently comply with them and these modifications should apply to all sanctioned countries. They are begging for it.
Sudanese activist and blogger Dalia Haj-Omar says that the Internet is "the only platform for free civic engagement in Sudan." Meanwhile, an article on AllAfrica.com states: "This is an appeal to empower Sudanese citizens through improved access to ICTs so that they can be more proactive on issues linked to democratic transformation, humanitarian assistance and technology education -- an appeal to make the sanctions smarter."
It’s not just Sudan. Dr. Mahmud Angrini, a Syrian doctor who claims to have taken more than 20 Coursera classes so far, wrote in an email recently to Global Voices: “It's a shame for [the U.S.] to share the Syrian regime in his collective punishment against the Syrian people. Education is an essential part of the humanitarian aid that my people deserve, and now after this decision, we lost one of the last resorts that some Syrians were depending on to continue their learning. Please, if you can, let my voice reaches those who deprived us even from our simplest rights.”
Similarly, a recent piece published on Medium describes the harm being caused to Iranians by technology sanctions.
The U.S. government needs to recognize that U.S. sanctions on communication technology, especially in the piecemeal way they are being handled, are currently causing more harm than good. They need to give clear, unequivocal green light to U.S. companies that are helping people to communicate online, regardless of where they happen to live.
Related Issues: Free SpeechInnovationInternational
Share this: || Join EFF
San Francisco - The Electronic Frontier Foundation (EFF) along with Professor Pamela Samuelson of the University of California, Berkeley, urged the U.S. Supreme Court today to clean up the legal mess that is software patent law, reining in overbroad patents that are impermissibly abstract.
In front of the court is Alice Corp. v. CLS Bank, a long running case about a computer system that helps with closing financial transactions by avoiding settlement risk. In its amicus brief filed today, EFF argues that allowing a patent on this system goes against previous Supreme Court rulings that ideas like these are "abstract" and aren't legally patentable.
"It wouldn't make sense to patent simple ideas like ways of running a business or prioritizing a to-do list," said EFF Senior Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "That's basically what's under consideration here, with the small addition of a step that essentially implements it on a computer. Of course, since basically everything we do today is on the computer, letting patents like this exist shuts down entire business models."
The data on the U.S. technology industry bear this out. Since software patents have boomed, we've seen no corresponding boom in software growth and innovation; to the contrary, that growth maintained the steady pace that existed long before the advent of software patents. Instead, along with software patents, we've seen the rise of patent trolls – companies that don't make or sell anything, but shake down true creators through the loopholes in the law.
"In this case, the Supreme Court has the opportunity to implement a sensible system, limiting these broad and vague claims that do nothing besides fuel lawsuits," said Samuels. "A clear ruling here would limit one of the patent troll's favorite weapons—broad and vague software patents—and keep our innovation economy safe."
For the full amicus brief:
For more on abstract software patents:
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
Share this: || Join EFF
We've made considerable progress in our fight against patent trolls. The House, you may remember, resoundingly passed the Innovation Act last year. The President has since said he would sign it, and make a strong statement in support of reform in this year's State of the Union address. Now, we await on the Senate to act (speaking of which, have you signed our letter urging such action?).
The letters demanding these payments are often evasive, failing to include details about the patents, who owns those patents, and the products or services that allegedly infringe. They fail to give recipients the information to make rational decisions, such as whether they should pay the troll, ignore the letter, or go to court to fight it. Just hiring a lawyer to ascertain that seemingly simple information can easily cost well into the tens of thousands of dollars.
The letters raise even more fundamental concerns, too. Because they happen before a legal complaint is ever filed, they are not part of the public record. And once a settlement or license is signed, it will likely include a non-disclosure provision, prohibiting the letter's recipient from talking publicly about its contents. This means that the scope of the problem is often underreported, making it harder for policymakers to understand the true scale of the patent troll problem.
Today, we are one step closer to having a real solution to this problem. Senators McCaskill (D-Mo.) and Rockefeller (D-W.V.) introduced the Transparency in Assertion of Patents Act, an important piece of legislation that would really protect consumers and small businesses by curbing the patent demand letter problem.
The bill would:
- Require that demand letters contain certain basic information, such as a description of the patent at issue, a description of the product or service that allegedly infringes it, the names and contact information for the patent's owners, and disclosures of ongoing reexaminations or litigations involving that patent.
- Define as an illegal unfair or deceptive practice certain egregious behaviors, such as sending letters threatening litigation without a real intent to file litigation or sending letters that lack a reasonable basis in the law.
- Explicitly give state attorneys general the power to to target similar bad behavior in their own states.
- Allow the Federal Trade Commision to enforce these rules by levying penalties of $16,000 per each violation.
Making this bill law would go a long way toward stoppnig some of the worst demand-letter abuses. We applaud Sens. McCaskill and Rockerfeller and look forward to supporting this piece of legislation as it works its way through the Senate.Related Issues: PatentsPatent Trolls
Share this: || Join EFF
San Francisco - Prof. Lawrence Lessig has settled his lawsuit against an Australian record label over the use of clips of a popular song by the band Phoenix in a lecture that was later posted online. Liberation Music, which represents Phoenix in New Zealand, claimed the clips infringed copyright, demanded YouTube take down the lecture, and then threatened to sue Lessig. Represented by the Electronic Frontier Foundation (EFF) and Jones Day, Lessig fought back, asserting his fair use rights in court.
"Too often, copyright is used as an excuse to silence legitimate speech," said Lessig, who serves as the Roy L. Furman Professor of Law and Leadership at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University. "I've been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences."
The settlement requires Liberation Music to pay Lessig for the harm it caused. The amount is confidential under the terms of the settlement, but it will be dedicated to supporting EFF's work on open access, a cause of special importance to Lessig's friend, Aaron Swartz, a technologist and activist who took his own life in early 2013. The parties also worked together to improve Liberation Music's methodology for compliance with the requirements of the DMCA in the United States. Going forward, Liberation Music will adopt new policies that respect fair use.
Neither party concedes the claims or defenses of the other. Liberation Music included this statement in the settlement agreement:
"Liberation Music is pleased to amicably resolve its dispute with Professor Lessig. Liberation Music agrees that Professor Lessig's use of the Phoenix song 'Lisztomania' was both fair use under US law and fair dealing under Australian law. Liberation Music will amend its copyright and YouTube policy to ensure that mistakes like this will not happen again. Liberation Music is committed to a new copyright policy that protects its valid copyright interests and respects fair use and dealing."
A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.
As a condition of the settlement, Liberation Music submitted a declaration explaining its takedown procedures. Liberation Music had allowed a single employee to use YouTube's automatic Content ID system to initiate the takedown process and then, when Lessig challenged the takedown, threaten a lawsuit. The employee, who did not have a legal background, did not actually review Lessig's video before issuing a threat of a lawsuit.
Liberation Music's new policy will still rely on YouTube's system, but it will ensure that no takedown notice is issued without human review, including fair use considerations. Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright.
"This is the policy Liberation Music should have had from the beginning," EFF Intellectual Property Director Corynne McSherry said. "Too many content owners are issuing takedowns and manipulating content filters without respect for the rights of users. This fight may be over, but the battle continues until every content owner embraces best practices that protect fair use."
For more on this case:
About Prof. Lessig:
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including The USA is Lesterland, Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.
Intellectual Property Director
Electronic Frontier Foundation
Share this: || Join EFF
It's time for Congress to follow the Sixth Circuit's lead and update one of the main online privacy laws—the Electronic Privacy Communications Act (ECPA). In the past, the Department of Justice has used the archaic law to obtain private online communications without obtaining a probable cause warrant as the Fourth Amendment requires. A bill co-sponsored by Reps. Kevin Yoder, Tom Graves, and Jared Polis—HR 1852, The Email Privacy Act—seeks to update ECPA by requiring a probable cause warrant whenever the government wants to access your online private messages.
The bill is slowly making its way through Congress, but we can speed it up. Tell your representative right now to cosponsor the bill. The bill ensures the government can't try to (ab)use ECPA in order to obtain our private online messages.
ECPA must be updated because the government has used the law to obtain private online messages—like personal email accounts or our social media messages—older than 180 days without a probable cause warrant. The government would have to obtain a warrant if those same messages were printed out on your desk. This difference shouldn't exist. By cosponsoring The Email Privacy Act, the government can no longer neglect the fact that Fourth Amendment protections do not whither with age.
Along with EFF, fifteen other privacy advocates and companies—like the Center for Democracy and Technology and DuckDuckGo—are spurring momentum to pass HR 1852. The bill would finally accomplish one of four goals of the Digital Due Process Coalition, a collection of tech companies, start-ups, privacy advocates, and think tanks working to update ECPA to ensure that laws continue to protect the rights of users as technologies advance and usage patterns evolve.
Updating ECPA is a common-sense move. Our freedom and constitutional protections do not expire with time. Tell your Rep. now to cosponsor HR 1852 and join us in demanding for long-overdue updates to our archaic electronic privacy laws.
Share this: || Join EFF
The only thing standing in the way of patent reform is the United States Senate.
The House passed the Innovation Act in December with a bipartisan 325-91 vote. President Obama has said he'll sign the bill and asked Congress during his State of the Union to "pass a patent reform bill that allows our businesses to stay focused on innovation, not costly and needless litigation."
It's now up to the Senate to help put an end to costly, destructive patent troll litigation and threats. And they need to hear from you: you the inventor, you the entrepreneur, you the investor, and especially you the concerned individual.
Sign this letter urging the Senate to pass meaningful, comprehensive patent reform.
The most prominent bill in the Senate right now is Sen. Leahy's Patent Transparency and Improvements Act. The bill is a great first step, but it is by no means as comprehensive as the Innovation Act. (And both bills could be even stronger.) We're hoping the Senate factors in proposals to address patent quality (like in S. 866, Sen. Schumer's Patent Quality Improvement Act) as well as includes heightened pleading and fee-shifting language (like in S. 1013, Sen. Cornyn's Patent Abuse Reduction Act). All of these pieces together go a long way toward a patent reform bill that will help fix many of the system's problems.
As we continue to hear about case after case and demand letter after demand letter, it is obvious that innovative businesses and individuals are getting hit everyday—and just how necessary meaningful patent reform really is.
Let your voice be heard. Show the Senate your support for reform today. And stay tuned for more actions to come.Related Issues: PatentsLegislative Solutions for Patent ReformPatent Trolls
Share this: || Join EFF
Maryland Court Dismisses Landmark Case That Sought to Hold Cisco Responsible for Violating Human Rights
The Federal District Court in Maryland this week dismissed Du Daobin v. Cisco Systems, a case brought by Chinese dissidents alleging that Cisco knowingly customized, marketed, sold, and provided continued support and service for technologies as part of China's Golden Shield, a digital censorship and surveillance system used by the Chinese government to facilitate human rights abuses. EFF filed an amicus brief urging the court to let the case go forward and we also launched an activism campaign calling on Cisco to stand up for writer Du Daobin and human rights in China. We’re deeply disappointed by the court’s decision to dismiss the case.
While a tech company could not (and should not) be held accountable when governments misuse general use products for nefarious purposes, early evidence indicates that Cisco did much more. This included actively customizing, marketing and providing support for its monitoring and censorship technologies even as it knew that they would be used to identify, locate, and surveil Chinese democracy and religious freedom activists. The complaint also alleged that Cisco knew (as the State Department reports confirm) of China’s practice of unlawful detention, torture, and even killing of these activists. In EFF’s amicus brief, we argued that this initial evidence should be sufficient to allow the case to move forward.
The court decision was based mainly on issues not addressed by EFF in our amicus brief. Many of the issues we are most concerned with—namely, whether and how tech companies can be held to account for facilitating human rights violations—remain unresolved.
Are Corporations Really “People” Under the Law?
There have been a number of Supreme Court rulings that found corporations have similar Constitutional rights and protections as people. In particular, Citizens United v. Federal Election Commission, decided in 2010, reaffirmed the First Amendment protections for corporations, associations, and labor unions.
But even as corporations are treated as "people" under the law in many ways, companies are often not being held to account for their actions the way a person would be. We saw a striking example of this when the Supreme Court let Chevron off the hook for its role in killing peaceful protesters in Nigeria under the Torture Victim Protection Act.
Largely Sidestepping the Issues of Corporate Accountability
In the Du v. Cisco case, the Federal District Court in Maryland largely side-stepped the specific issue of when corporations can be held to account for building special technologies that are customized for repressive governments for the explicit purpose of tracking activists who then face human rights abuses like torture. The court's rulings on other legal arguments, however, are troubling for those would like to see basic accountability for those building the tools of repression.
The court first ruled that that the question of Cisco's involvement in human rights abuses in China was a "political question" that should not be addressed by the courts and pointed to the fact that the export laws and regulations allowed Cisco to export these technologies as somehow precluding a court from providing a remedy to those who are harmed by them. This is incorrect—nothing about the claims raised by the plaintiffs challenged the export decisions made by the executive branch or the export laws passed by the legislature.
Next, the court ruled that the "act of state" doctrine forbid it from ruling on whether China had abused the human rights of the plaintiffs. This doctrine states that, in general, one country should not sit judgment on another government’s official acts within its own territory. But "act of state" doctrine only applies to public, official policies of another country. Since the Chinese government has repeatedly denied that human rights abuses like the detention and torture that the plaintiffs suffered here are its official policies, the court was wrong to dismiss this case under "act of state" doctrine.
Overall, the court’s decision fails to take into account that the U.S. government on all levels, and especially the State Department, has openly and repeatedly criticized China for the very abuses at issue in this case. Moreover, neither the U.S. nor the Chinese government objected to the case going forward, something that usually happens when a case has actual political or foreign policy implications. For example, the most recent State Department report on human rights in China discusses the abuse and detainment of political prisoners like the plaintiffs:
Numerous former prisoners and detainees reported that they were beaten, subjected to electric shock, forced to sit on stools for hours on end, deprived of sleep, and otherwise subjected to physical and psychological abuse. Although ordinary prisoners were subjects of abuse, political and religious dissidents were singled out for particularly harsh treatment.
With regard to Internet surveillance and censorship, the same report stated that,
The CCP continued to increase efforts to monitor Internet use, control content, restrict information, block access to foreign and domestic Web sites, encourage self-censorship, and punish those who ran afoul of political sensitivities.
The report also noted that “Official monitoring focused on such tools as social networking, microblogging, and video-sharing sites.”
Cisco’s Assistance to China
The court also determined that the plaintiffs had not sufficiently alleged that Cisco created the Golden Shield technologies with the purpose of facilitating the abuses and gave "practical assistance" to the officials in those abuses. The court said, "the technology Cisco has allegedly customized and sold to China to assist them with these purported human rights violations is inherently neutral technology that can clearly be used in a variety of non-offensive ways."
On this point, EFF strongly disagrees and it seems that the court is willfully ignoring the allegations of the complaint. The complaint alleges both Cisco’s role in creating technology and providing assistance in ways sufficient to support the case proceeding to the discovery phase, where the extent of Cisco's knowledge and assistance could have been determined. For example, in one of the documents submitted as evidence, a marketing presentation created by Cisco to describe the benefits of its technology to the Chinese government noted that one of the goals was to "Combat Falun Gong evil religion and other hostilities." It is difficult to imagine a more direct acknowledgement and promotion of the use of a product for repression.
The Role of Tech in Upholding Human Rights
Technologies are being created and customized with the explicit purpose of helping repressive regimes track down, detain, torture and murder people. It’s time for Western companies and American officials to stop pretending this isn’t true.
Earlier this month, John Kerry met with a group of Chinese bloggers who urged him to speak out against Internet monitoring and censorship in China. According to the New York Times, Mr. Kerry, "said he had not heard the charges that American companies had helped the Chinese authorities maintain control over Internet access, but promised to look into the matter."
The protestations of ignorance from American officials and corporations like Cisco ring false to us. But we're happy to provide information to the Secretary of State should he need it.
It’s time for companies and the government to acknowledge how technology is being customized for the abuse of human rights. Let’s stop ignoring the problems and work on policies to prevent and reverse this dangerous trend.
To that end, EFF has developed "Know Your Customer" standards that can help companies avoid participating in human rights abuses.
We don’t need to wait for the courts to get this right; forward-thinking companies can adopt these standards right away, and users of technology everywhere can call on companies with which they do business to adhere to these standards of respecting human rights.Related Issues: Mass Surveillance TechnologiesState Surveillance & Human Rights
Share this: || Join EFF
Bad Facts, Really Bad Law: Court Orders Google to Censor Controversial Video Based on Spurious Copyright Claim
It's an old legal adage that bad facts lead to bad legal decisions, and today we've got a classic example in Garcia v. Google—the "Innocence of Muslims" case. Based on a copyright claim that is dubious at best, the Ninth Circuit Court of Appeals has ordered Google to take offline a video that is the center of public controversy. We can still talk about it, but we can't see what we are talking about. We're hard-pressed to think of a better example of copyright maximalism trumping free speech.
For those who haven't been following this, the case was brought by an actress, Cindy Lee Garcia, who was tricked into performing in a short anti-Islamic film (she was told the film was about something very different) and, as a result, found herself subject to death threats. Bad facts, right? Here's the bad law part: Garcia then filed a lawsuit against Google and several others, claiming the video infringed her copyright in her performance (approximately 5 seconds of a 13 minute video). Then she asked the court to require Google to take the video down. The district court wisely refused, noting that Garcia's copyright interest was unclear at best. Garcia appealed, and today the Ninth Circuit agreed with her, and ordered Google to take down all copies of the video and take reasonable steps to prevent further uploads.
How is this decision wrong? First, the ruling blows past the First Amendment concerns with the time-worn observation that "the First Amendment does not protect copyright infringement." Of course it doesn't, but neither are copyright cases immune from the same balancing test that applies to any injunction. And the standards for this kind of injunction—a classic prior restraint—are particularly high. Indeed, as the Supreme Court has observed repeatedly, injunctions that shut down speech are particularly disfavored. Court after court has held that they should not be issued where, as here, the case is "doubtful" but only where the law and the facts clearly favor an injunction.
Second, the merits of this case are indeed doubtful. Very doubtful. Garcia is claiming a copyright interest in her brief performance, a novel theory and one that doesn't work well here. After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn't seem to be one of them. Movie makers of all kinds should be worried indeed.
There are other problems with the legal analysis, but the decision is equally if not more troubling for the signal it sends. Based on nothing more than a tenuous (at best) copyright claim, the court has ordered a service provider to censor a video that has been the subject of considerable debate and comment, with only the most cursory analysis of the speech harms it will cause. If Garcia had brought a claim under virtually any other theory, we expect the court would have taken more care. Unfortunately, it seems copyright exceptionalism has won the day.Files: garcia_opinion_.pdf
Share this: || Join EFF
In a win for online fair use and the free speech it makes possible, a federal district court judge has ruled that using a campaign headshot as part of a critical, noncommercial blog post does not infringe copyright.
The case started back in April, when California Republican Party Vice Chairman Harmeet K. Dhillon sued an anonymous blogger over the use of a five year old headshot on "The Munger Games" website—a site dedicated to criticism of Charles Munger Jr., donor and current chairman of the Santa Clara County Republican Party, and his perceived political allies. The headshot was part of a post criticizing Dhillon and was originally used as part of her failed campaign for the California Assembly in 2008. Given that the use in question was obviously a lawful fair use, it appeared that the suit was motivated more by a desire to use the judicial process to unmask her critics than by any legitimate copyright concern.
The defendants asked the court to dismiss the case as a matter of law early, before the parties were forced to waste further time and money defending the case. EFF submitted an amicus brief in support, explaining that it is particularly important to call a halt to such cases quickly, lest they be used as a club to punish free speech. While some fair uses cases can be muddy, the right outcome for this one was crystal clear.
Happily, the court agreed, though it did not use quite the procedure we urged. Running through the traditional fair use factors (purpose, nature of the work, amount used, and likelihood of market harm), the court noted that while the headshot was originally created for use in a campaign, the bloggers had used it as part of their criticism of Dhillon's political views—a "paradigmatic" fair use purpose. The court rejected out of hand as a "speculative assertion" Dhillon's contention that the bloggers might have had some commercial purpose. While the work was minimally creative and the bloggers used the entire work, they had to do so to accomplish their purpose. Finally, the court concluded that the Munger Games use of the shot had no impact on any licensing market for the work. The court properly rejected Dhillon's complaint that she had stopped using the photo herself due to the negative publicity:
The plaintiff’s argument that the defendant’s use of the headshot photo in connection with the article commenting on and criticizing her political views has altered the meaning or message of the original work is, in effect, a concession that the defendant’s use was transformative under the first factor of the fair use analysis. The plaintiff’s argument does not, however, establish that the defendant’s use had any impact upon the economic market for the headshot photo . . . .
The plaintiff in this case should have known better than to waste the court’s time on such an outrageous claim. We're glad to see that Judge Illston took the wise step of dismissing the case now. But it's disappointing that she did not also choose to punish Dhillon for her misuse of the judicial process by requiring Dhillon to pay attorneys fees. Indeed, the case underscores the need for a strong federal anti-SLAPP law. It is likely no accident that Dhillon countered the criticism of her political views with a (federal) copyright infringement suit. Had she brought a similar state-law claim and lost, California's anti-SLAPP statute would likely have left her on the hook for attorney's fees. As long as federal causes of action are exempt from anti-SLAPP protections, plaintiffs will continue to be drawn to such strategies to carry out their transparently improper goals.
In the meantime, as the 2014 campaign season ramps up, let's hope our politicians take note: the best response to critical speech is still more speech, not bogus copyright claims.Related Issues: Fair Use and Intellectual Property: Defending the BalanceNo Downtime for Free SpeechRelated Cases: Dhillon v. Doe
Share this: || Join EFF
Open Letter to Tech Companies Includes 10 Principles to Protect Users From NSA Sabotage
In the past nine months, our trust in technology companies has been badly shaken. Today, in collaboration with prominent security researchers and technologists, EFF presents an open letter to technology companies, urging them to protect users from NSA backdoors and earn back the trust that has been lost.
From the Snowden revelations emerge stories of collusion between government spy agencies and the companies whose services are integral to our everyday lives. There have been disturbing allegations published by Reuters indicating that RSA, an influential information security firm, accepted a $10 million contract from NSA that included, among other items, an agreement to use what we now know to be an intentionally compromised random number generator as the default for its BSAFE cryptographic library.
A future where we cannot trust the very technologies meant to secure our communications is fundamentally unsustainable. It's time for technology companies to start helping users regain trust, with transparency and active opposition to illegal surveillance. Implementing the requisite changes in technical infrastructure and business practices may have short-term costs; however, the long-term cost of keeping users in perpetual fear of NSA sabotage is far greater.
How to Protect Your Users from NSA Backdoors: An Open Letter to Technology Companies
As security researchers, technologists, and digital rights advocates, we are deeply concerned about collaboration between government agencies and technology companies in undermining users' security. Among other examples, we are alarmed by recent allegations that RSA, Inc. accepted $10 million from NSA to keep a compromised algorithm in the default setting of a security product long after its faults were revealed. We believe that covert collusion with spy agencies poses a grave threat to users and must be mitigated with commitment to the following best practices to protect users from illegal surveillance:
- Provide public access to source code whenever possible, and adopt a reproducible build process so that others can verify the integrity of pre-compiled binaries. Both open and closed source software should be distributed with verifiable signatures from a trusted party and a path for users to verify that their copy of the software is functionally identical to every other copy (a property known as "binary transparency").
- Explain choices of cryptographic algorithms and parameters. Make best efforts to fix or discontinue the use of cryptographic libraries, algorithms, or primitives with known vulnerabilities and disclose to customers immediately when a vulnerability is discovered.
- Hold an open and productive dialogue with the security and privacy communities. This includes facilitating review and responding to productive criticism from researchers.
- Provide a clear and secure pathway for security researchers to report vulnerabilities. Fix security bugs promptly.
- Publish government request reports regularly (often these are called "Transparency Reports"). Include the most granular reporting allowed by law.
- Invest in secure UX engineering to make it as easy as possible for users to use the system securely and as hard as possible for users to use the system unsafely.
- Publicly oppose mass surveillance and all efforts to mandate the insertion of backdoors or intentional weaknesses into security tools.
- Fight in court any attempt by the government or any third party to compromise users’ security.
- Adopt a principle of discarding user data after it is no longer necessary for the operation of the business.
- Always protect data-in-transit with strong encryption in order to prevent dragnet surveillance. Follow best practices for setting up SSL/TLS on servers whenever applicable.
The Electronic Frontier Foundation in collaboration with*:
- Stephen Checkoway, Assistant Research Professor, Department of Computer Science, Johns Hopkins University
- Roger Dingledine, Project Leader, Tor Project
- Brendan Eich, Founder, Mozilla
- Matthew Green, Assistant Research Professor, Department of Computer Science, Johns Hopkins University
- Nadia Heninger, Assistant Professor, Department of Computer and Information Science, University of Pennsylvania
- Tanja Lange, Professor, Department of Mathematics and Computer Science, Technische Universiteit Eindhoven
- Nick Mathewson, Chief Architect, Tor Project
- Ruben Niederhagen, Department of Mathematics and Computer Science, Technische Universiteit Eindhoven
- Eleanor Saitta, OpenITP / IMMI
- Bruce Schneier, Security Technologist
- Christopher Soghoian, Principal Technologist, Speech, Privacy and Technology Project, American Civil Liberties Union
- Ashkan Soltani, Independent Researcher and Consultant
- Jon A. Solworth, Associate Professor, Department of Computer Science, University of Illinois at Chicago
- Brian Warner, Tahoe-LAFS Project
- Zooko Wilcox-O'Hearn, Founder and CEO, LeastAuthority.com
*Affiliations listed for identification purposes only.
Share this: || Join EFF
Nearly three months since his arrest, the Egyptian blogger, software developer and activist Alaa Abd El Fattah remains imprisoned. Charged in December with organizing a demonstration to protest the failure of the draft constitution in legislating against military court martialing of civilians, Abd El Fattah is awaiting trial in prison.
In mid-January, a group of bloggers from across the Arab region came together in Amman for the fourth iteration of the Arabloggers conference, a community which Abd El Fattah had been a part of since its beginnings in 2008. It was at this gathering that we released a statement—along with more than 40 other organizations from around the world—calling for the release of Alaa Abd El Fattah and all those unjustly detained in Egypt.
It was also at this meeting that our friends at 7iber—a Jordanian media organization that also fights for digital rights—created the following video in solidarity with Alaa:Privacy info. This embed will serve content from youtube-nocookie.com
var mytubes = new Array(1); mytubes = '%3Ciframe src=%22//www.youtube-nocookie.com/embed/iLbfcJgcnyc?autoplay=1%22 allowfullscreen=%22%22 frameborder=%220%22 height=%22369%22 width=%22650%22%3E%3C/iframe%3E'; Related Issues: Free SpeechBloggers Under FireInternational
Share this: || Join EFF
In the latest blow to patent trolls, 42 state and territorial attorneys general—that's right, 42!—wrote a letter today calling on the Senate to pass meaningful patent reform. As the AGs write:
So-called patent trolls stifle innovation and harm our economy by making dubious claims of patent infringement and using the threat of expensive litigation to extort money from small businesses and nonprofits. We have received many complaints from these businesses and nonprofits, our constituents, who are desperate for relief from the misuse of the patent system. While these threats were once focused on tech businesses, they are now levied at all manner of businesses, including banks, hospitals, restaurants and hotels.
You might remember that states such as Vermont, Nebraska, Minnesota, and New York have long been leaders in the fight to take on patent trolls. They've been particularly effective because they often are in the best position to know the harm their citizens and local businesses are facing. It is encouraging to see nearly every state's attorney general call on the Senate to pass patent reform. We think they are right, and we hope that the United States Senate is listening.Related Issues: PatentsPatent Trolls
Share this: || Join EFF
The U.S. Trade Rep announced last week that it will create a new “Public Interest Trade Advisory Committee,” in an attempt to allow public interest groups to provide more input into U.S. proposals in trade agreements like the Trans-Pacific Partnership (TPP). That aim is important, and underserved by many USTR policies, but this proposal is an inadequate remedy to fix the gross imbalance of influence from corporate interests.
The main problem with these Trade Advisory Committees (TACs) is that all of their members are forced to sign non-disclosure agreements. This means that any civil society representative who joins this new TAC would be legally restricted from being able to discuss or publicly advocate on the provisions she has seen. The system is designed to be a Catch-22 to keep out real public oversight: public interest advocates may join to advance the public interest in these negotiations, but doing so would mean agreeing to put a gag on themselves. What makes this arrangement even more opaque are strict rules of TACs exempting communications between negotiators and industry lobbyists from Freedom of Information Act requests.
These committees are divided into three tiers: the first is the Advisory Committee for Trade Policy and Negotiations, made up of 32 members representing various industries, interest groups, and trade associations—20 of whom are corporate representatives. The second tier has four committees that are more public interest directed, as they do not strictly represent business interests. It includes committees on labor issues and another on trade and environmental policy. The most influential TACs are those on the third tier, the 16 Industry Trade Advisory Committees (ITACs). This group is divided into different policy areas including energy, e-commerce, and yes, one on “intellectual property.”
The proposed Public Interest TAC would be on the second tier. One issue is that committees in the second tier are not afforded the same access to meetings as those in the third, corporate-dominated tier. But a more fundamental issue is that all public interest representatives are grouped into one separated committee. That means civil society representatives from a wide range of policy issues will all be heaped together. Representatives of the public interest need to have a seat at the table where specific policy issues are being discussed and requested on the industries' behalf. If there are 16 separate ITACs and one public interest committee, some interests will be more strongly represented.
No big surprise, the idea to segregate public interested groups like this came from a proposal pushed forth by the chairs of the Industry TACs. Back in 2010, the Obama administration was considering including non-corporate reps in these third-tier, policy specific TACs. The industry reps joined together to oppose this proposal. They wrote:
We note that the ITACs were created and designed to present the views and interests of the producing sectors of the U.S. economy. ITACs are charged with giving highly technical advice. Exports are created by business, investments are created by business, and good, high-paying jobs are created by businesses...We believe it’s important that any changes in the ITAC advisory membership reform be done understanding that the key point of this whole system is to be sure that the negotiators understand the needs of businesses.
At least the corporate advisors were frank about it. This system isn't designed to represent broader public interest issues; rather, it's there to streamline lobbying by corporations to get the policies they want into trade deals. So then they go on to propose the following:
You’ve got two options. You can open up the existing ITACs and bring in NGOs and other non-industry groups. We strongly disagree with that option. Option two is to set up another committee, or group of committees, within the present three-tiered structure that would provide a forum for seeking the advice of NGOs and other non-industry groups.
That misstates the problem. Public interest groups have provided no shortage of "advice" to the U.S. Trade Rep on what should and shouldn't be in trade agreements. The real issue is that these trade agreements continue to prioritize corporate policies at the expense of users and the millions of individuals who will be affected by their extreme copyright policies.
As long as U.S. trade negotiators give favorable treatment to corporations, they'll continue to neglect the public interest groups' input on trade policy. That conflict is especially ironic given that our positions on the TPP provisions are directly concerned with innovation, investment, and job creation. This is nowhere clearer than in our criticism against the U.S. proposals on ISP liability, DRM, and its proposal to expand the standard of copyright term lengths even farther.
Trade deals that uphold corporate interests above all other concerns are not going to be improved by a slight tweak in the current process. This new Public Interest TAC is far from enough to address the gross lack of transparency in this process—and worse, will likely be used as a fig leaf to justify the U.S. Trade Rep's ongoing cozy relationships with industry groups in the other existing TACs. EFF will not legitimize this back-room lobbying process only to be ignored by the U.S. Trade Rep, or be limited by a Non-Disclosure Agreement. As members of civil society, it is our job to report and explain what is going on in secret proceedings to the public so we can work to stop bad law altogether.
If you're in the US: use this tool to contact your lawmakers, call your representatives, and help us stop Congress from putting TPP on the Fast Track.Fair Use and Intellectual Property: Defending the BalanceInternationalTrans-Pacific Partnership Agreement
Share this: || Join EFF