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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Today, the House Judiciary Committee is holding a hearing on "remedies" in copyright law—that is, the penalties, injunctions, and other means of challenging and penalizing alleged infringement. This is hugely important: fixing copyright’s remedy provisions (like excessive, unpredictable monetary penalties and government seizures of domain names) is key to ensuring that copyright does its job—helping to encourage creativity—without unduly interfering with free speech and innovation.
To help the Judiciary Committee, and to explain why fixing this part of copyright law is so important, EFF is releasing a white paper today. Collateral Damages explains how copyright’s system of “statutory damages” chills free speech and harms innovation. Statutory damages are automatic penalties of $750 to $150,000 per infringed work that a judge or jury can award to copyright holders without the copyright holders having to present any proof of their actual harm. This system leads to excessive penalties, like $222,000 against a home Internet user for sharing 24 copyrighted songs. It’s also wildly unpredictable, with vastly different amounts being awarded by different juries for the same conduct, making lawsuits a gamble.
Collateral Damages lays out some of the problems this system causes. The threat of excessive and unpredictable damages is why many filmmakers struggle to obtain the liability insurance their financial backers require. It's part of why innovators with new products that necessarily use and improve on creative work can't find investors. And it's one of the main reasons why so many unscrupulous lawyers have turned to copyright trolling to turn a failing movie or pornographic video into a litigation cash cow.
Copyright doesn't need these excessive penalties to accomplish its purpose. EFF’s whitepaper suggests some ways that Congress can fix statutory damages, including requiring evidence of harm when it’s available and eliminating statutory damages for those who rely on fair use in a reasonable way.
Statutory damages are likely to be a major topic at today’s hearing, and also at roundtable discussions that the Department of Commerce is holding next week: in Los Angeles on July 28 and Berkeley, California on July 29.
Six years ago, a federal judge implored Congress to reform copyright's penalties. Let's hope Congress is finally ready to listen.Related Issues: Fixing Copyright? The 2013-2014 Copyright Review Process
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