People have many reasons to be anonymous online, from the political to the personal. One of the most contentious uses of anonymity is in consumer reviews—some reviewers feel they need the protection of anonymity to post the truth, while some businesses claim that it fuels irresponsibility. But the First Amendment protects anonymous speech online, just as it protects the choice to hand out political flyers in person without identifying oneself.
In an amicus brief just filed in the Virginia Supreme Court, EFF explains how the law protects everyone when disagreements about anonymity move from the Internet to the courtroom.
This case concerns reviews of Hadeed Carpet Cleaning, a business in Alexandria, Virginia, posted on the review site Yelp. Hadeed filed suit against the unknown authors of seven reviews that were critical of its business. In order to proceed, Hadeed served Yelp with a subpoena to discover the identity of the seven John Does. Hadeed alleged that it had checked its customer database, and the reviews did not correspond to any actual customers. Hadeed claimed that because the Does weren’t customers, their negative reviews were false and therefore defamatory. Yelp objected, in part, on the grounds that the subpoena did not satisfy the constitutional requirements to protect the authors’ First Amendment right to anonymity. However, both the trial court and the court of appeals held that Hadeed had satisfied Virginia’s statutory procedure for unmasking anonymous speakers and denied Yelp’s motion to quash. Now the case is on appeal to the Supreme Court of Virginia.
At first blush, it might seem odd that the constitutional protection of free speech would also apply to a speaker’s choice to be anonymous. But in fact, the Supreme Court has repeatedly explained that anonymity is so important to our discourse that it should be protected by the First Amendment.
The rule has both historical and political grounding. As the Court put it in 1960, anonymous pamphlets and books “have played an important role in the progress of mankind.” Of particular note are the many anonymously published documents from the founding era of the United States, such as the Federalist Papers, which were crucial in the framing and ratification of the Constitution itself. Perhaps more important, the Court explained that remaining anonymous can protect speakers with unpopular opinions from the tyranny of the majority, which fulfills a core purpose of the Bill of Rights. In essence, protections for anonymity strengthen democracy.
From parody Twitter accounts to message boards for LBGTQ youth, the Internet is a natural home for anonymous speech. But detractors are quick to point out that anonymity makes it harder to hold authors of objectionable speech accountable. Internet users who post defamatory reviews shouldn’t be able to hide behind a veil of anonymity, they say.
It’s a valid concern, one that is embodied in First Amendment law itself. That’s why the right to anonymity is “qualified,” not absolute. But with so much of the law, the difficulty is in how to set the balance. Because the right to anonymity is so crucial in ensuring robust public discussion—a core First Amendment value—it should be given real weight. Anonymous speakers must be protected from harassment by plaintiffs who simply don’t like their message. On the other hand, valid lawsuits shouldn’t be stopped in their tracks just because the defendant is anonymous.
EFF has played an active role in helping courts set this balance, and we’ve stepped in to defend anonymous speakers who are unfairly targeted. As we argue in the new brief, the consensus that has emerged strikes a fair equilibrium: plaintiffs who seek to unmask an anonymous speaker must provide evidence to the court that their case is a strong one. Courts have slightly different ways of phrasing this requirement, but it is essential that they feel satisfied with the plaintiff’s evidence before they order an anonymous speaker to be unmasked.
Therein lies the problem with Hadeed’s claim against the anonymous Yelp reviewers. Hadeed alleged that the reviewers aren’t actually customers, but the lower courts didn’t require it to provide proof. Nor did Hadeed show how the reviews were defamatory. Whether or not what Hadeed claimed was enough under Virginia law, the First Amendment requires significantly more evidence of defamation. We hope the Supreme Court of Virginia will agree.
A special thanks to Matthew Erausquin and the firm of Consumer Litigation Associates, PC for acting as our local counsel in this case.
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San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of advocacy groups have asked a federal appeals court to block record labels' attempt to thwart federal law in Capitol v. Vimeo—a case that could jeopardize free speech and innovation and the sites that host both.
In this lawsuit, the record labels sued online video site Vimeo, alleging that dozens of sound recordings were infringed in videos posted on the site. A ruling from a district court judge earlier this year found Vimeo could be responsible for copyright infringement, and in doing so imposed new, impossibly high standards for websites hosting user-generated content. In an amicus brief filed Wednesday, EFF argues that the decision undermines the safe harbors created by the Digital Millennium Copyright Act (DMCA), and the innovation and expression those safe harbors make possible.
"The safe harbors give websites a clear set of rules. If they follow the law in their response to complaints from copyright owners, then they can predict and manage their exposure to lawsuits and other legal challenges," said EFF Intellectual Property Director Corynne McSherry. "The safe harbors are critical to the Internet's success as a forum for innovative art, discussion, and expression of all kinds, forestalling crippling litigation that would force most websites to close their doors. Yet the district court created new liability, contrary to the law and the intent of Congress."
At issue in Capitol v. Vimeo are videos that Vimeo employees viewed or interacted with, as well as pre-1972 sound recordings, which receive different copyright protection than post-1972 works. Essentially, the decision would seem to offer service providers an impossible choice: scour the website for any content that anyone could argue might include pre-1972 audio and thereby potentially lose safe harbor protections, or risk expensive copyright litigation.
"This is exactly the result that Congress was trying to avoid with the safe harbors—without them service providers unwilling to risk being sued may decide not to host videos and other works with audio at all," said EFF Staff Attorney Vera Ranieri. "We hope the appeals court steps in to reinforce the law and protect free speech and innovation online."
Also joining EFF's brief are the Center for Democracy and Technology, New Media Rights, the Organization for Transformative Works, and Public Knowledge.
For the full amicus brief:
Intellectual Property Director
Electronic Frontier Foundation
Electronic Frontier Foundation
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The Fourth Amendment protects us from “unreasonable” government searches of our persons, houses, papers and effects. How courts should determine what is and isn’t reasonable in our increasingly digital world is the subject of a new amicus brief we filed today in San Francisco federal court.
At issue is historical cell site data—the records of the cell towers a customer’s cell phone connects to. The government has long maintained that it’s unreasonable for customers to expect those records to remain private. As a result, the government argues it does not need a search warrant to obtain historical cell site records from cell phone providers.
Federal appeals courts are divided on the issue. In 2013, the Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi and Texas, ruled there was no expectation of privacy in historical cell site data. But last month, the Eleventh Circuit Court of Appeals, which covers Alabama, Florida and Georgia, reached the opposite conclusion, ruling people did have an expectation of privacy in this information.
Federal magistrate judge Nathanael Cousins in San Francisco, who is not required to follow either the Fifth or Eleventh Circuit–he’s bound to follow the Ninth Circuit which hasn’t ruled on the issue yet–recently requested the local U.S. Attorney’s office to explain why the government believed it did not need a search warrant to obtain cell site records. He invited the San Francisco Federal Defender to file a response as well, and we filed an amicus brief supporting a warrant requirement. The ACLU of Northern California and University of San Francisco law professor Susan Freiwald and EFF special counsel Marcia Hofmann also submitted amicus briefs.
A Fourth Amendment “search” is an intrusion upon something in which a person has a subjective expectation of privacy that society considers reasonable. By definition, determining whether a search is “reasonable” requires looking at what society considers to be deserving of privacy protection. So our amicus brief explains why many Americans actually expect this detailed and sensitive location information to remain private, even when it’s stored by phone companies.
It’s clear that people consider location information—which can reveal who we associate with, our patterns of movement, and things like religion, sexual practices, and political affiliations—to remain private. If someone followed you everywhere you went for long stretches of time, you’d probably call the police. While some people may choose to broadcast their location publicly, by posting a picture or “checking in” on social media, for example, historical cell site information is very different. It may show you traveling to or from a doctor or somewhere else you’d like to keep private.
But this isn’t just mere conjecture; the fact that a growing number of states are extending location privacy protection to their citizens is a gauge of societal understandings that it is reasonable to expect this information remain private. While the Fourth Amendment does not depend on state law or statutory guarantees, they are nonetheless compelling evidence of societal understandings of privacy.
Many states protect location information. Police in Hawaii, New York, Oregon and Washington require police to use a search warrant to track a person’s movement with a GPS or other electronic tracking device. In 2012, five justices of the U.S. Supreme Court’s recognized in concurring opinions in United States v. Jones that people can expect information about their movements over an extended period of time, even on public streets, remain private.
After Jones, Colorado, Maine, Minnesota, Montana and Utah passed statutes requiring law enforcement use a search warrant to obtain historical cell site information. Indiana, Virginia and Wisconsin passed laws requiring police to use a warrant if they want to track a cell phone in real time. The state high courts in Massachusetts and New Jersey ruled their respective state constitutions require police use a search warrant to obtain historical cell site records. All of this is compelling proof of Americans expectation their location information is private.
Our amicus brief also explains that the 35-year-old Supreme Court decision in Smith v. Maryland, which found a phone customer had no reasonable expectation of privacy in the phone numbers he dialed over three days, does not mean law enforcement can skirt the warrant requirement here. Our brief notes many states have rejected Smith, including California, who ruled just a few months after Smith was decided that because dialed phone numbers provide a “virtual current biography” about a person, there is an expectation of privacy in them under the state constitution. For the U.S. Attorney in San Francisco, tasked with investigating crimes occurring in Northern California and likely involving suspects throughout the Golden State, to argue that there is no expectation of privacy in historical cell site records ignores the explicit promise California has made to its citizens that certain phone records are private.
Last month, the Supreme Court in Riley v. California extended privacy protections to the contents of cell phones, settling a judicial split by prohibiting police from searching a cell phone incident to arrest. Although the court long ago ruled police could search items like a pack of cigarettes and other things that may be found on a person after they’d been arrested, the court noted that a cell phone was different, a technology that was “nearly inconceivable just a few decades ago.” One of the reasons the court believed a warrant was necessary was the ubiquity of the modern cell phone. In the past, police came across scraps of papers or diaries only sporadically. But today, 90 percent of Americans carry cell phones, the majority of which are Internet connected smartphones that contain text messages, pictures, videos, emails and other sensitive information. The court’s decision to ban searches of cell phone data incident to arrest was a response the privacy implications of technology changing the societal reality.
Judge Cousins and other federal and state courts have an opportunity to follow the Supreme Court’s lead in Riley and ensure that the Fourth Amendment keeps up with accepted expectations of privacy in California and nationwide. As more courts and state legislatures across the country identify and establish privacy guarantees for this data, it has become clear that society recognizes that an expectation of privacy in cell site records is “reasonable.” The only thing that should now be considered unreasonable is the government’s attempt to get historical cell site data without a warrant.Related Issues: PrivacyCell TrackingLocational PrivacyRelated Cases: In re Telephone Info
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Earlier today, Senator Patrick Leahy introduced a revised version of his USA FREEDOM legislation, the USA FREEDOM Act of 2014, which focuses on telephone record collection and FISA Court reform. While this bill is not a comprehensive solution to overbroad and unconstitutional surveillance, it is a strong first step. EFF urges Congress to support passage of the bill without any amendments that will weaken it.
The new legislation contains a number of key changes from the gutted House version of USA FREEDOM:
The USA FREEDOM Act of 2014 will end bulk collection of phone records under Section 215
EFF, along with other groups, made it clear that we would not support any legislation that did not effectively end bulk collection of call detail records. The Senate version of USA FREEDOM achieves this goal, by limiting collection to instances where there is reasonable suspicion that a “specific selection term” is associated with international terrorism.
The House version of USA FREEDOM used murky language around the phrase “specific selection term,” in particular, raising concerns that a “specific selection term” could include an entire zip code or other similarly broad terms. For purposes of collection of call detail records where there is reasonable suspicion, the Senate version continues to use the definition that a specific selection term is an “individual, account, or personal device.” However, for any other purpose, the term must narrowly limit the scope of a request for information, and cannot include a broad geographic region or an entire electronic communications service provider.
The USA FREEDOM Act of 2014 makes significant improvements to the FISA Court
The new USA FREEDOM makes two key changes to the secretive FISA Court process. First, we were pleased to see that it creates a special advocate position that will serve as an amicus in the court and is intended to advocate for civil liberties and privacy.
Second, it directs the Office of the Director of National Intelligence, in consultation with the Attorney General, to declassify “significant” FISA Court opinions. We would have preferred that this process be overseen directly by the Attorney General, with input from the FISA Court itself. On the other hand, the new USA FREEDOM bill actually defines “significant” (the original USA FREEDOM bill did not), and this definition includes any novel interpretation of “specific selection term.”
The legislation also makes several other improvements. When USA FREEDOM was originally introduced, we were concerned that it would codify “about” searches—the practice of searching for any communication that references a target, in addition to communications to and from a target. We were deeply concerned that this controversial practice would be written into law, and glad that the Senate version removes any reference to that form of searching.
The new legislation also has some small improvements to the initiation and judicial review procedure for national security letters—secretive FBI orders for data that are accompanied by gag orders—as well as pen register and trap-and-trace devices. The bill creates new reporting requirements for the government—including a requirement that the government estimate how many U.S. persons have been affected by backdoor warrantless searches of information collected under the authority of Section 702 of the FISA Amendments Act. And finally, the bill creates a new option for companies to report on national security requests.
What the USA FREEDOM Act of 2014 doesn't do
First and foremost, the USA FREEDOM Act of 2014 does not adequately address Section 702 of the FISA Amendments Act, the problematic 2008 law that the government argues gives it the right to engage in mass Internet surveillance. We remain committed to reform of Section 702. We intend to pursue further reforms to end the NSA’s abuse of this authority.
The legislation also does not affect Executive Order 12333, which has been interpreted by the NSA to allow extensive spying both on foreigners and U.S. citizens abroad. Strictly speaking, we don’t need Congress to fix this—the President could do it himself—but legislation would ensure that a later President couldn’t reinstate 12333 on her or his own.
The legislation may not completely end suspicionless surveillance. With respect to call detail records, it allows the NSA to get a second set of records (a second “hop”) with an undefined “direct connection” to the first specific selection term. Because the “direct connection” standard is vague, the government may seek to construe that phrase to mean less than reasonable suspicion.
Finally, as with all legislation up to this point, the new USA FREEDOM continues to exclude meaningful protections for the rights of non-U.S. persons.
A meaningful first step
The USA FREEDOM Act of 2014 is a real first step because it creates meaningful change to NSA surveillance right now, while paving the way for the public to get more information about what the NSA is doing. We believe that this legislation will help ensure that the NSA reform conversation in Congress continues, rather than shutting it down. That’s why we urge Congress to support the Senate version of USA FREEDOM and pass it without any changes that will weaken its provisions.
Please help us pass this bill. Speak out today.Related Issues: NSA SpyingPATRIOT ActPen Trap
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It's increasingly rare for Congress to actually pass bills into law, but Friday brought some good news from Capitol Hill: More than a year after the exemption covering phone unlocking expired and a White House petition on the topic collected some 114,000 signatures, a narrow bill offering a limited carve-out for consumers unlocking phones made its way to the President's desk to be signed into law.
This is a win for consumers. There was near universal agreement that the restrictions were unreasonable, ranging from a White House statement calling a phone unlocking allowance "common sense," to a partial solution from the FCC, to a Congressional hearing on phone unlocking and the DMCA. EFF worked with a broad coalition of individuals, companies, and public interest groups to convert that common goal into real policy and to keep dangerous language from the House proposal out of the final version of the bill.
But this is also just a tiny step toward what should be the real goal: fundamental reform of the misguided law that is the heart of the problem. The reason the phone unlocking's legality is even unclear is because of a Digital Millennium Copyright Act (DMCA) provision that prohibits the circumvention of technical measures that restrict copyrighted content. In the case of phones, that copyrighted content could include the actual software running the phone.
Of course, consumers want to be able to unlock their phones so they can use them with the carrier of their choice, and that has nothing to do with copyright infringement. Enforcing the business models of telephone companies is way out beyond what copyright law is supposed to do. Unfortunately, it's not that unusual an application of the DMCA's anti-circumvention provisions. In the 16 years since the DMCA became law, it’s done little to hinder infringements but a lot to shut down innovation and free speech.
The safety valve in that section of the DMCA is a rulemaking procedure that takes place every three years, where members of the public can argue for the Librarian of Congress to grant specific exemptions to the law. An exemption for phone unlocking had been granted in the past, but in the 2012 rulemaking, it was only extended for several months until early 2013.
The legislation we passed last week effectively corrects that error, granting an exemption for the remainder of this three-year term. But it does nothing to address the underlying problem: Copyright law is being used to as a tool against competition and innovation. Further, it gives little consolation to others burned by the DMCA's anticircumvention rules.
With the next round of rulemaking expected to take place in the next year, even this narrow victory could be short-lived. The law requires each exemption to be argued from scratch each time, and there's no shortcut process for "renewing" an already granted exemption. Practically speaking, the Librarian of Congress has been given a strong signal from the legislature on the need for a phone unlocking exemption, but there will still be a time-consuming process of formally making the case. The outcome is important, but in many cases that process is a waste of time for everybody involved.
A much better solution would be to reform that section of the law altogether. Even if we cannot come to a compromise that simply strips the anticircumvention rules out of the law, we should be able to condition their application to cases where there might actually be infringement.
Such a solution is possible. The bill that passed last week was only one of several proposed solutions to the phone-unlocking problem. Representative Zoe Lofgren's bill, the Unlocking Technology Act, took this much better fundamental approach. And even with the urgency of phone unlocking off the table, Lofgren's proposal would be an extremely important improvement to a profoundly broken section of copyright law.
This issue, bubbling under the surface for a long time, is increasingly important as more and more of our appliances, devices, and goods could face the phone unlocking problem: if everything's got a layer of copyrighted software, our ability to own and operate the stuff we own can face hurdles from the DMCA. Our right to repair, to tinker, to repurpose, to resell, all are affected.
As in years past, EFF will push for the best possible exemptions in the triennial rulemaking. But it is also increasingly clear that the rulemaking is not a workable “safety valve.” Last week's phone unlocking success was a partial victory, but users deserve more. Whether it comes from Lofgren's Unlocking Technology Act or elsewhere, we will continue to push for that reform.Related Issues: Fair Use and Intellectual Property: Defending the BalanceDMCADMCA RulemakingInnovationDRM
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Human Rights Watch and the ACLU today published a terrific report documenting the chilling effect on journalists and lawyers from the NSA's surveillance programs entitled: "With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law and American Democracy." The report, which is chock full of evidence about the very real harms caused by the NSA's surveillance programs, is the result of interviews of 92 lawyers and journalists, plus several senior government officials.
This report adds to the growing body of evidence that the NSA's surveillance programs are causing real harm. It also links these harms to key parts of both U.S. constitutional and international law, including the right to counsel, the right of access to information, the right of association and the free press. It is a welcome addition to the PEN report detailing the effects on authors, called Chilling Effects: How NSA Surveillance Drives US Writers to Self-Censor and the declarations of 22 of EFF's clients in our First Unitarian Church of Los Angeles v. NSA case.
The HRW and ACLU report documents the increasing treatment of journalists and lawyers as legitimate surveillance targets and surveys how they are responding. Brian Ross of ABC says:
There’s something about using elaborate evasion and security techniques that’s offensive to me—that I should have to operate as like a criminal, like a spy.
The report also notes that the government increasingly likens journalists to criminals. As Scott Shane of the New York Times explains:
To compare the exchange of information about sensitive programs between officials and the media, which has gone on for decades, to burglary seems to miss the point. Burglary is not part of a larger set of activities protected by the Constitution, and at the heart of our democracy. Unfortunately, that mindset is sort of the problem.
Especially striking in the report is the disconnect between the real stories of chilling effects from reporters and lawyers and the skeptical, but undocumented, rejections from senior government officials. The reporters explain difficulties in building trust with their sources and the attorneys echo that with stories about the difficulties building client trust. The senior government officials, in contrast, just say that they don't believe the journalists and appear to have thought little, if at all about the issues facing lawyers.
Thanks to ACLU and HRW for adding the important faces of journalists and lawyers to the growing list of people directly harmed by NSA surveillance.Related Issues: Free SpeechNSA SpyingRelated Cases: Jewel v. NSAFirst Unitarian Church of Los Angeles v. NSA
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Yesterday we filed a motion for partial summary judgment in our long running Jewel v. NSA case, focusing on the government's admitted seizure and search of communications from the Internet backbone, also called "upstream." We've asked the judge to rule that there are two ways in which this is unconstitutional under the Fourth Amendment:
- The admitted seizure of communications from the Internet backbone, for which we have government admissions plus the evidence we received long ago from Mark Klein.
- The government's admitted search of the entire communications stream, including the content of communications.
We're very proud of this motion (especially the infographic), and we're hoping that this shifts the conversation around the world to how the surveillance actually happens, rather than the U.S. government's self-serving word games about it.
As this motion progresses, here are a few points to keep in mind:
1) Government Admissions: This motion is based almost entirely on the government's formal, acknowledged admissions. This is because a Motion for Partial "Summary Judgment," such as this one, cannot be decided if the parties disagree about material facts. It is a common litigation strategy to make a motion based upon the undisputed facts so that the court can rule on an important legal issue, even if there are other facts that are not yet agreed upon.
In essence, we are saying that even if you accept the government's own descriptions of its internet backbone spying, the spying is still unconstitutional. You can see which formal government statements we're relying on at pages 4-9 of the motion, some of which are directly attached in the Declaration of Richard Wiebe.
That doesn't mean that EFF thinks that the government's current description is correct or complete about what they are actually doing. We've watched the government play fast and loose with the facts—and even outright lie to Congress—too many times for that. In this case, many careful watchers of the government believe that the government isn't actually filtering out some wholly domestic traffic—stage 2 in our brief—or at least isn't doing it in the way it says it is. But because to win this motion we do not need the judge to decide whether the government is telling the truth about the filtering, we have included stage 2 in our description. Our argument is that the government's searching violates the Fourth Amendment even if stage 2 occurs.
2) Domestic backbone only: This motion is based on the domestic backbone surveillance as it has been described in the government's released documents, including Foreign Intelligence Surveillance Court opinions. This is what the government sometimes calls "upstream" and claims is allowed by FISA Amendments Act section 702 (50 USC 1881a). To be clear, this motion does not address other areas of government mass surveillance. For example, we know that the government also conducts sweeping mass collection outside of the United States of both Americans' and foreigners' communications under Executive Order 12333 as well as other kinds of surveillance inside the U.S. This motion is just about the Fourth Amendment violations due to domestic surveillance through tapping into the Internet backbone.
Note also that EFF does not think section 702 of the FISA Amendments Act actually authorizes the backbone collection. Section 702 says nothing about mass seizure and searches, much less authorizes them. But in any event, the orders of the FISC issued under section 702 are not the warrants that the Fourth Amendment requires—so the technique is unconstitutional even if 702 applies.
3) Backbone collection isn't just at the telecommunications "border": One reason that many people, including our expert J. Scott Marcus, don't believe that the government is simply searching through international or foreign-to-foreign communications when it engages in backbone collection is that those collections aren't just happening at the US "border" for communications. The "border" for these purposes would be where the undersea fiber optic cables come up out of the ocean and satellite links come down into the country. For example, none of the undersea cables land in San Francisco, as shown by these maps: Transpacific Cable Landings: Western US, which is a blow up of this cool interactive map. Nor, according to expert analysis, would it be the right location to intercept satellite feeds into and out of the country. Meanwhile, a screenshot of a Snowden slide from a Brazilian news report shows that the government has a large number of collection points in the US heartland, far from any international border.
There are lots of other reasons to be skeptical of the government's claims, but our point in the motion is that even if they are limiting their searches to communications that cross the border, the searches are still unconstitutional. This is because they admittedly includes Americans' communications when they speak to someone abroad or access a website hosted abroad, something we talk about on pages 6-8 of the motion and also again on pages 19-20 in footnote 22.
4) Word games to watch out for: As we try to make clear in the motion, especially at footnote 13, the government uses a very different definition of "collect" or "acquire" than most people do, limiting "collection" or "acquisition" to stage 4, when the communications are actually stored in the government's database. An easy place to see this is in DNI Clapper's explanation for denying to Senator Wyden that the U.S. government is “collecting” data on millions or hundreds of millions of Americans. Clapper told NBC's Andrea Mitchell: “[T]here are honest differences on the semantics when someone says ‘collection’ to me, that has a specific meaning, which may have a different meaning to him [Senator Wyden].” DNI Clapper's position is not new. A 1982 Department of Defense manual says that information is considered to be collected only after it has been “received for use by an employee of a DoD intelligence component,” and that “[d]ata acquired by electronic means is ‘collected’ only when it has been processed into intelligible form,” without regard to when the information was initially acquired by a surveillance device.
These are just four things that may help you keep track of the discussion as this fight continues.Related Issues: NSA SpyingRelated Cases: Jewel v. NSA
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San Francisco - The Electronic Frontier Foundation (EFF) today presented a federal court with a detailed explanation of how the NSA taps into the Internet backbone and requested the judge rule that the agency is violating the Fourth Amendment by copying and searching the collected data.
EFF argues there are now enough agreed-upon facts in our lawsuit, Jewel v. NSA, to reach a constitutional conclusion. To shed light on how the mass surveillance violates the Fourth Amendment, EFF crafted a new infographic that details each stage of the surveillance. The graphic is freely available for republication.
"We believe there is enough on the record now for the judge to rule that both the initial mass seizure and the subsequent searching of the content of Internet communications are unconstitutional," EFF Legal Director Cindy Cohn said. "By installing fiber-optic splitters on the Internet backbone, and then searching through tens of millions of Internet communications it collects, the NSA is conducting suspicionless and indiscriminate mass surveillance that is like the abusive 'general warrants' that led the nation's founders to enact the Fourth Amendment."
Jewel v. NSA was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and other AT&T customers. EFF has amassed a mountain of evidence to support the case, including documents provided by former AT&T telecommunications technician Mark Klein showing that the company has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Telecommunications specialist and former FCC technical adviser J. Scott Marcus also has given expert testimony confirming the mass, domestic nature of the collection. Other whistleblowers—including Thomas Drake, Bill Binney and Edward Snowden—have revealed more detail about how this technique works and feeds data into the NSA's massive collection of communications. Over the last year, the government has confirmed that it searches the content of much of what it collects as part of its "upstream" activities without a warrant. Instead, it currently claims the searches are justified under Section 702 of the FISA Amendments Act.
"By sitting on the Internet 'backbone' at key junctures, the government is operating a digital dragnet—a technological surveillance system that makes it impossible for ordinary Americans not suspected of any wrongdoing to engage in a fully private online conversation, to privately read online, or to privately access any online service," Cohn said. "The Constitution was written to ensure that Americans felt secure in their papers, digital or otherwise, and we're asking the judge to rule that the NSA's mass seizures and searches are illegal."
EFF is also currently fighting with the NSA over its failure to preserve evidence, including years of Internet-backbone data it collected, as well as telephone records and Internet metadata. Jewel v. NSA is one of three of EFF's cases aimed at ending NSA spying. The two others are First Unitarian Church of Los Angeles v. NSA and Smith v. NSA.
Note on Graphic: The graphic is available under the Creative Commons Attribution License. Attribute to Electronic Frontier Foundation/Hugh D'Andrade.
For the infographic:
Electronic Frontier Foundation
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EFF's position on net neutrality simply calls for all data that travels over the Internet to be treated equally. This means that we oppose ISPs blocking content based on its source or destination, or discriminating against certain applications (such as BitTorrent), or imposing special access fees that would make it harder for small websites to reach their users. We have called for the FCC to assume firm legal authority to protect the neutrality of the net from these sorts of abuses, while explicitly forbearing from going any further to regulate the Internet.
Do we maintain this same position internationally? Absolutely. Users from around the world suffer the same sorts of problems—such as the blocking of VoIP services in the Caribbean, to the recently-defeated proposal to authorize a tiered Internet in Mexico, to deals that Spotify is striking with providers in countries such as Austria to offer flat-rate access to its own music streaming service, while users pay full price for competing services. In all of these cases, just like in the US, the result is to tilt the playing field in favor of deep-pocketed incumbents, and against startups and noncommercial content providers.
Does this mean that the same strategies that we are advocating in favour of net neutrality in the US should also apply to the rest of the world? Well, no. There is, of course, no international equivalent of the FCC (nor would we want one), so that rules out the option of global net neutrality rules—though there are global multi-stakeholder bodies discussing the development of non-binding principles or guidelines for net neutrality, which EFF is following.
This makes net neutrality regulation a domestic issue, and the correct approach to take will vary based on each country's circumstances. For example, countries like Japan, the Netherlands and Canada already have open access policies that require competitors to share access to network infrastructure on fair terms. In some cases (such as Australia, Sweden and Singapore) this has been accompanied by functional or structural separation of the dominant telecommunications operator, and/or by significant public funding for a national broadband network.
In yet other countries (such as South Korea and Hong Kong, China) competition flourishes even in the absence of open access or net neutrality rules, thanks in part to low barriers to entry for new broadband service providers resulting from those countries' smaller geographies, along with a low-cost regulatory environment. Open internet rules in these countries may not be such a priority as it is in the United States, where the broadband market is less competitive—and as EFF knows well, regulating without good reason can introduce new problems.
But in countries where threats to net neutrality have emerged or can be clearly seen on the horizon, this can provide good reason to support narrow, targeted open Internet rules.Digital divide
Where things get more complicated is that there is a second problem that prevents users from around the world from accessing the Internet on fair terms. It's called the digital divide. This simply means that due to a combination of high access prices and low incomes, the cost of an unrestricted, neutral Internet connection in many countries is unaffordable to most. In some of those same countries, a solution offered by mobile providers is to offer “zero rating” of popular services.
What is zero rating? Similar to “fast lane discrimination”, where content providers pay a network provider to prioritize their content on its network, a service that is zero rated can be accessed for free from a (usually mobile) subscriber's device. In contrast, accessing competing services will eat into the subscriber's capped data allowance, or will incur extra fees if that allowance has been used up.
Services that are typically zero rated by providers in developing countries include the world's biggest Web properties—Google, Facebook and Twitter—as well as messaging services like WhatsApp, KakaoTalk and WeChat that can reduce the high cost of communicating through phone calls and SMS messages.
The zero rating of a Internet service is negotiated between the content provider and the network, and in most cases the terms of this negotiation are kept secret. An exception is the non-profit Wikipedia, which although certainly also a big Web property, does operate transparently in its negotiations with providers, and neither pays nor receives payment in exchange for its zero rating.
It goes without saying that users will be much more inclined to access a zero rated service than one for which they need to pay, and that this tilts the playing field in favor of the zero rated content owner. On its face, this isn't neutral at all. Yet some have argued that it is worth allowing poor consumers to access at least part of the Internet, even if they are shut out from accessing the rest of it because they can't afford to do so.
However, we worry about the downside risks of the zero rated services. Although it may seem like a humane strategy to offer users from developing countries crumbs from the Internet's table in the form of free access to walled-garden services, such service may thrive at the cost of stifling the development of low-cost, neutral Internet access in those countries for decades to come.
Zero-rating also risks skewing the Internet experience of millions (or billions) of first-time Internet users. For those who don't have access to anything else, Facebook is the Internet. On such an Internet, the task of filtering and censoring content suddenly becomes so much easier, and the potential for local entrepreneurs and hackers to roll out their own innovative online services using local languages and content is severely curtailed.
Sure, zero rated services may seem like an easy band-aid fix to lessen the digital divide. But do you know what most stakeholders agree is a better approach towards conquering the digital divide? Competition—which we can foster through rules that reduce the power of telecommunications monopolies and oligopolies to limit the content and applications that their subscribers can access and share. Where competition isn't enough, we can combine this with limited rules against clearly impermissible practices like website blocking.
This is the vision of net neutrality that EFF is working towards, both in the United States and around the world. We firmly believe that all the world's citizens deserve access to an open, neutral and secure Internet, in all its chaotic, offensive and wonderful glory. Whilst we appreciate the intent behind efforts such as Wikipedia Zero, ultimately zero rated services are a dangerous compromise.Related Issues: Net NeutralityInternational
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