Aegean Associates, Inc.
5 The Strand, New Castle, Delaware 19720 (USA)
Reported on:
Wed, Dec 4 2013 21:49 -0400
Just because a jogger can see the outside of your home on a public street doesn’t mean you’ve surrendered all your privacy expectations in the home. However, that seemingly obvious concept is being put to the test in a federal criminal case in Washington state, which involves the constitutionality of using a camera mounted on a pole outside a house to allow the police to watch the home for almost a month. Senior District Court Judge Edward Shea invited EFF to submit an amicus brief in the case and Monday we filed our brief, arguing prolonged warrantless video surveillance violates the Fourth Amendment.
In United States v. Vargas, local police in Franklin County, Washington suspected Leonel Vargas of drug trafficking and in April 2013, installed a pole camera on a public road overlooking Vargas’ rural home. They did not get a search warrant to install or use the camera, which was pointed squarely at the front door and driveway of the home. Officers had the ability to pan the camera around and zoom in and out all from the comfort of the police station. They watched the outside of Vargas’ home for more than a month, taking notice of who visited him and what cars they were driving. They observed no criminal activity until a month after they began snooping, when officers saw him shooting a gun at beer bottles in what appeared to be target practice. Because the officer had learned earlier that Vargas was undocumented, they had probable cause to believe he had committed a federal crime by possessing a firearm. They used this surveillance to get a search warrant to enter Vargas’ home, and the search turned up drugs and guns, which form the criminal charges against Vargas.
Vargas moved to suppress the video surveillance, arguing the use of the pole camera violated the Fourth Amendment, which prohibits unreasonable searches. Since the frontyard and door of Vargas’ home is considered “curtilage,” it is entitled to the same Fourth Amendment protection as the home, where warrantless searches are considered per se unreasonable.
In defending the surveillance, the government argued that Vargas had no expectation of privacy since he exposed the front of his house to the public. But no one expects their house to be placed under invasive 24/7 video surveillance for a month. Although the U.S. Supreme Court in the 1980s previously authorized warrantless aerial surveillance in California v. Ciraolo, Dow Chemical Co. v. United States and Florida v. Riley, all of those cases involved one-time fly-overs, not continuous surveillance. Like GPS and cell phone tracking, prolonged video surveillance of a person’s home raises much more significant Fourth Amendment problems than a one-time observation. Non-stop video surveillance -- especially of a person’s home -- allows the police to determine a person’s associations and patterns of movements, information that can be extremely revealing.
The invasiveness of video surveillance has led courts to require the police to do more than just get a search warrant to engage in this kind of snooping. Law enforcement must make additional showings to the court -- similar to those necessary to obtain authorization to wiretap a phone call -- before engaging in covert video surveillance. Any other rule would allow the police free rein to silently watch and record those they dislike, waiting for someone to inevitably commit one of the myriad federal crimes. Since the police had no warrant or judicial authorization whatsoever to video record Vargas’ home for a month, the surveillance violated the Fourth Amendment and all the evidence the police seized as a result of the surveillance can’t be used against Vargas in his criminal case.
These arguments touch upon more than pole cameras. As police departments around the country get their hands on new technologies like drones and mesh networks, the ability to move around anonymously and privately will be significantly impaired. It’s crucial for courts to play a role in policing the police and their new toys by overseeing the use of these technologies.
Judge Shea will hear oral argument on the motion on February 11, 2014 at 10am at the federal courthouse in Richland, Washington.
Thanks to Robert Seines for serving as EFF’s local counsel in the case.
Related Issues: PrivacyThis week, the full House of Representatives will vote on the Innovation Act (H.R. 3309), the best troll-killing bill we've seen so far. This is a big deal: patent reform is sorely needed.
The bill passed out of the House Judiciary Committee two weeks ago with a strong, bipartisan 33-5 vote. Now that it's facing the whole House, it's time to mobilize.
Use our tool to call your representative and tell him or her to support the Innovation Act. (You can also email your member of Congress and urge them to support the bill.)
Though the bill has seen a fair number of changes over the last few weeks as it went through the markup and amendment process—and there may be more amendments coming—it remains an extremely strong force in the fight against patent trolls.
The bill makes it easier and cheaper to fight patent trolls in court, it requires trolls to make their cases for infringement publicly and clearly, and it helps protect end users and consumers when they face suits from patent trolls.
We should be clear: while this bill focuses on one part of what plagues our patent system—namely, patent trolls—we have continuing concerns about patent quality and software patents. That being said, we believe the Innovation Act offers effective fixes to an urgent problem, and we need you to tell your lawmakers to support this bill.
Related Issues: PatentsLegislative Solutions for Patent ReformPatent TrollsWe were disheartened to hear late last week that prominent Egyptian blogger, activist, and friend of EFF Alaa Abd El Fattah was arrested again. According to reports, Abd El Fattah's home was searched, his laptops seized, and wife Manal Hassan beaten by authorities when she demanded to see a warrant. Their two-year-old child was asleep in the next room at the time. On Dec. 1, his detention was extended by 15 days.
Abd El Fattah rose to prominence as one of Egypt's first bloggers, writing at http://manalaa.net/ along with his wife. Over the years, he has been a steadfast supporter of free expression, protesting against both the Mubarak dictatorship and more recently, the military regime. The charges he faces currently stem from an alleged call he made for protest against military trials of civilians.
In addition to the arrests, there were a spate of attacks against the online accounts of activists, including Mona Seif, Abd El Fattah's sister. Seif lost access to her email account after her brother's home was raided, and the Facebook page of the No Military Trials campaign—which Seif leads—was maliciously taken over. Both accounts have since been restored.
According to a rolling press release issued by activists, "the persecution of Alaa Abd El Fattah is a recurring theme in Egypt." He was jailed in 2006 for 45 days under the Mubarak regime and again in 2011 after departing San Francisco, where he spoke at the Silicon Valley Human Rights Summit. Although none of the arrests were directly related to his blogging, Alaa's prominence as a thought leader and activist stems from his online activities.
The seizure of Abd El Fattah's devices, as well as the attacks on activists' online accounts, should signal to activists the importance of securing their content. As we recently highlighted, there are lots of things activists can do to protect their data, including encrypting their hard drives, using full-disk encryption, using password lockers like KeePassX, and using two-step authentication on social media accounts. Those who know they are at risk should formulate a contingency plan determining what should be done with their online accounts in the event of their arrest.
A US citizen has become the first foreigner to be charged under the United Arab Emirates' "cybercrime" decree for a satirical video about young people in Dubai. Shezanne Casim, an Abu Dhabi resident, was arrested in April and charged with, among other things, violating Article 28 of the cybercrimes law, which bans "using information technology to publish caricatures that are 'liable to endanger state security and its higher interestes or infringe on public order'" and is punishable by imprisonment and a fine of up to 1 million dirhams (approximately 272,000 USD). The law came into effect more than one month after the video* was posted.
While on the surface the UAE claims progressiveness, rights groups know better: the country's human rights situation is in rapid decline. Digital repression is a common feature of the Gulf states, but things have become particularly worse in the Emirates since the 2012 decree. In the past few months the government has: tried to shut down an Arab-American news site hosted in Germany; arrested an Egyptian journalist and numerous citizens; and sentenced an activist to two years in prison for tweeting about a trial. Last year, the country played host to the World Conference on International Telecommunications (WCIT), where it pushed for stricter Internet controls.
The US and the UAE in particular share a cozy relationship; just last month, Secretary of State John Kerry reasserted that the two countries "are friends." That said, the UAE's actions are in direct contradiction to the Internet freedom principles espoused by the State Department. While the State Department is "monitoring the case," we think they should do more and call directly on their friend to release Casim. Friends don't let friends jail people for speech.
*The video can be viewed here. Individuals located in the UAE are not advised to click the link.
Related Issues: Free SpeechBloggers Under FireInternationalWhen a group of students from Iowa State University (ISU) contacted us earlier this month about forming an ISU Digital Freedom group, they were facing an unexpected problem: despite their simple goal of fostering a healthy conversation around freedom-enhancing software, the university administration denied them official recognition. The university has since granted the Digital Freedom group the green-light to meet on campus, but under unduly restrictive conditions. These students’ story is instructive to students around the country and the world who are concerned about online privacy.
The administration initially denied the Digital Freedom Group's proposal because it did not want ISU students either to advocate for or participate in the “secrecy network” Tor, and would not permit the student group to use any “free software designed to enable online anonymity.” The students had not proposed that a Tor node be established on campus. Rather they asked that they be able to provide a forum to “discuss, learn and practice techniques to anonymize and protect digital communication.”
The students were told they had to gain clearance from the Iowa State University attorneys and security clearance from the university's Chief Information Officer. They were ultimately successful, and Iowa State University is now home to its very own Digital Freedom Group.
EFF strongly supports the formation of student groups like the Digital Freedom Group that aim to discuss and learn about methods for secure and private use of the Internet. We submit this open letter to campus activity review boards across the world that may feel a similar hesitation on the topic of online anonymity and privacy. Students, professors, and staff from other universities are invited to contact us [ students@eff.org ] with stories of misguided, speech-chilling policies.
University administrations around the world,
A healthy conversation about online privacy should never be stifled. Yet we've heard too many stories of students whose efforts to initiate these conversations have faced roadblocks from university administrators fearful of encryption and anonymity software.
But the time has come now to embrace these technologies, not blindly reject them. There is nothing to fear about online privacy and the various tools available to achieve it.
The demonization of technology because of a few bad actors is a dangerous path. Think about it: the classification of a computer as a machine designed for cybercrime, makes no more sense than maligning cell phones because drug dealers use them to make illegal sales. Instead, we should encourage ethical and responsible use of technologies. The best way to do this is through meaningful conversation that explains how technologies function and the myriad ways technology is and can be utilized.
Tor, in particular, was originally developed by the U.S. Naval Research Laboratory for the purposes of protecting government communications. But today it is used to serve a variety of needs. Journalists use Tor to protect the anonymity of their sources; Internet users in countries where information is censored use Tor to circumvent oppressive firewalls; lawyers use iTor to exchange sensitive information relating to a case; corporations use Tor to protect trade secrets; and people use Tor everyday to have conversations about topics they might feel uncomfortable discussing without the protection anonymity provides. The technology is popular among survivors of rape or gang violence and medical patients who want to take part in online communities, but may only wish do so anonymously.
Anonymous speech has a long history in democratic societies, particularly when used by those whose politically contentious views might have put them ill-at-ease amongst their contemporaries (like Mark Twain, Voltaire, and George Orwell—all pen names). The Federalist Papers were written under the collective pen name Publius to protect the identities of the individual authors. In a similar fashion, Tor gives people the opportunity to discuss anything, freely and without fear of being tracked or chastised for their opinions.
There are other free software tools that we consider to be good hygiene for a privacy-conscious user, like GPG email encryption, which is used to keep email communication private from malicious hackers or unconstitutional government surveillance. There is also our HTTPS Everywhere browser extension, designed to encrypt data that travels between a user's computer and a website. These practices are not designed to cloak criminals from the view of law-enforcement. Rather, they are intended to make experiences online as trustworthy as possible, despite the fact that the interactions occur across great distances between people and organizations that may never meet in the physical sense.
Conversations about online privacy and security should be encouraged, and never silenced. The more that students understand how security threats function and the myriad ways they can protect their communications and identity, the less vulnerable they are to cybercrime or unwanted surveillance. Privacy technologies can be introduced as a framework grounded in ethical applications and First Amendment principles.
Please never hesitate to contact the Electronic Frontier Foundation with questions about online privacy or anonymity tools, and more importantly, think twice before ever limiting what students can and cannot discuss openly, especially when it comes to the use of technology. Healthy and open dialogue about how students can, should, and do use existing technologies is far better than forcing secrecy, which may only serve to promote notions of criminality about Internet practices that, if used properly, serve to enhance and protect our basic rights online.
Securely and sincerely,
The Electronic Frontier Foundation
PS: Please see and share our “Myths and Facts About Tor” document for a deeper discussion about the oft-misunderstood software.
Related Issues: Free SpeechAnonymityPrivacyDo Not TrackEncrypting the WebSecurity
Sitting on the wire, the NSA has the ability to track and make a record of every website you visit. Today, the Huffington Post revealed that the NSA is using this incredible power to track who visits online porn websites, and to use this information to discredit those it deems dangerous. Their porn habits would then be "exploited to undermine a target's credibility, reputation and authority."
The story was illustrated with six individuals, none of whom are designated terrorists themselves. Instead, they are deemed "radicalizers," people—two of which the NSA itself characterized as a "well-known media celebrity" and a "respected academic"—whose speeches and postings allegedly incite hatred or promote offensive jihad.
The report raises the specter of abusing online viewing records to discredit other political opponents of the US government. The NSA document was reviewed not just by the NSA and counter-terrorism officials, but by entities like the Department of Commerce and the US Trade Representative. The USTR negotiates treaties (like the controversial Trans-Pacific Partnership), and one could certainly imagine that the leverage from this program could be useful in pushing for the US position. In fact, EFF and three dozen civil society groups have already asked the NSA to explain if they are spying on those advocating for the public interest in US trade policy.
Stewart Baker, former general counsel of the NSA, is quoted as saying one should not worry that the program would be used domestically, because we can count on our officials to know better. Baker forgets that the US government's past is replete with examples of abusing spying powers for domestic political gain.
As Cato Fellow Julian Sanchez points out, there is a lengthy and disturbing history of abuse. FBI Director "J. Edgar Hoover maintained a notorious 'Sex Deviate' file filled with salacious bits of information on the sexual proclivities of prominent Americans: actors, columnists, activists, members of Congress, and even presidents." Hoover used that information to ensure appropriations for the FBI and expand his political power. Likewise, the ACLU remembers the government's spying on the activities of Martin Luther King Jr., which "sought to compile a dossier of embarrassing information about King's private sex life that the government could (and did) employ to discredit King and obstruct his political efforts."
The administration keeps on attempting to justify the NSA spying by claiming there is oversight from the other branches of government. But, as Pentagon Papers whistleblower Daniel Ellsberg noted in the Why Care About NSA Spying video, spying makes a mockery of that separation. How can that oversight be meaningful if the NSA's huge storehouse of information contains the private viewing habits of every senator, representative, and judge? When the only protection against abuse is internal policies, there is no serious oversight. Congress needs to take action now to rein in the spying.
Related Issues: PrivacyNSA SpyingWe're one step closer in winning the fight against the human rights violations posed by mass surveillance. On Tuesday, the United Nations Third Committee adopted a resolution reaffirming the right to privacy in the digital age and stressing the importance of the right to seek, receive, and impart information.
Entitled "The right to privacy in the digital age," the draft resolution introduced by Brazil and Germany does not name specific countries, but is aimed at upholding the right to privacy for everyone at a time when the United States and the United Kingdom have been conducting sweeping mass surveillance on billions of innocent individuals around the world from domestic soil.
The draft resolution, adopted by consensus by over 50 states, welcome the recommendations of Frank LaRue, UN Special Rapporteur on Free Expression. La Rue's report, published earlier this year, makes the case that privacy is an essential requirement for the realization of the right to free expression:
Undue interference with individuals' privacy can both directly and indirectly limit the free development and exchange of ideas.... An infringement upon one right can be both the cause and consequence of an infringement upon the other.
The draft resolution calls upon all states:
While we see this as a small victory for privacy, we must note that the resolution was weakened by the United States and its allies who stripped out a sentence that explicitly defined mass surveillance as a violation of human rights. The US also tried (and failed) to remove any suggestion that privacy protestions apply extraterritorially. The final text of the draft resolution noted that states have only "deep concerns" with the "negative impacts" of surveillance and collection of personal data, at home and abroad, when carried out on a mass scale.
This draft resolution is important in restating an already accepted international legal principle: states must comply with their own commitments under human rights law when exercising their power outside their borders. In other words, if a state is conducting extraterritorial surveillance it remains bound to upholding the right to privacy for everyone. The resolution will make it harder for the US and its Five Eyes allies to claim that their international human rights obligations stop at their borders. As a coalition of civil society including EFF previously said, "Just as modern surveillance transcends borders, so must privacy protections."
If adopted, this will be the first resolution by the general assembly on the right to privacy. The last time that the right to privacy was examined by a multinational division of the UN was in 1988. It therefore represents an excellent opportunity for States to update their understandings of international human rights law in the context of the massive technological advances that have taken place over the last 25 years. The 193-member general assembly is expected to vote on the non-binding resolution next month.
To join our fight to end mass surveillance, please sign the petition endorsing the Necessary and Proportionate Principles.
Related Issues: Free SpeechInternationalInternational Privacy StandardsState Surveillance & Human RightsPrivacyOn Halloween of this year, EFF and EarthRights International (ERI) filed an appeal in the Second Circuit (PDF) to protect the rights of dozens of environmental activists, journalists, and attorneys from a sweeping subpoena to Microsoft issued by the Chevron Corporation. Both the Republic of Ecuador (PDF) and a group consisting of Human Rights Watch, Automattic, a pair of anonymous bloggers, and academics Ethan Zuckerman and Rebecca McKinnon (PDF) filed amicus briefs in support of our appeal.
UPDATE: On November 22, EFF and ERI filed a related appeal in the Ninth Circuit (PDF) on our motion to quash Chevron's subpoenas to Google and Yahoo.
By way of background, the subpoenas at issue only the latest chapter in a two-decade battle over damage caused by oil drilling in Ecuador that should have ended with a $19 billion judgment against Chevron in 2011. Although the judgment was upheld on appeal in the Ecuadorian Supreme Court, the oil giant continues to fight with a RICO conspiracy suit filed in New York against 50 individuals involved in the case. In the new case, which is halfway through a bizarre trial now, Chevron claims that the Ecuadorian judgment was obtained through fraud. However, Chevron has not alleged that EFF's and ERI’s clients have engaged in that alleged fraud themselves.
Chevron’s subpoenas are directed at Microsoft, Google, and Yahoo and demand information related to the owners of 101 email accounts, including their names, mailing address and billing information, and the IP addresses associated with every login over a nine-year period.
The scale of Chevron’s subpoenas are truly massive; nine years’ worth of data will allow the oil company to paint a fairly precise picture of the movements as well as personal and political associations of the activists, journalists, and attorneys whose speech it dislikes. The request has serious implications for the future of political speech and environmental advocacy, especially when the targets are people who haven’t been accused of wrongdoing, as is the case here.
A year ago, EFF and ERI moved to quash Chevron's subpoenas on the grounds that they violated the First Amendment’s protections for anonymous speech and free association.
Unfortunately, in June of this year, Lewis Kaplan, a federal district judge in New York, ruled that the Chevron's overly broad subpoena to Microsoft did not violate the First Amendment on the grounds that none of our clients were Americans. Judge Kaplan held (PDF) that Chevron’s request to pierce the anonymity of dozens of environmental advocates and map their locations over the course of nine years does not burden their First Amendment rights.
EFF and ERI objected because the judge was wrong on the facts and wrong on the law (PDF): Not only is one of our clients American, but the First Amendment’s protections extend to all of Chevron’s targets. This sweeping subpoena would grant it access to the names, locations, and relationships of activists, journalists, and attorneys—information protected by the First Amendment. If Chevron actually needed any of the information it seeks to prove the case, the company might potentially have been entitled to some of it. But because the targets are people Chevron has not accused of wrongdoing, the company has no need for the data it demands. Chevron vehemently disagrees with what our clients have to say and has used this subpoena in an attempt to intimidate them into silence. Chevron’s tactic has no basis in the law, and it won’t work.
Our motion to quash Chevron’s subpoenas to Yahoo! and Google was heard by a court here in the Northern District of California. In that case, Judge Nathanael Cousins ruled (PDF) that although the subpoenas were overly broad, they did not burden our clients' First Amendment rights. We appealed Judge Cousins' ruling to the Ninth Circuit. Chevron's response is due December 20.
Related Issues: Free SpeechRelated Cases: Chevron v. DonzigerWall Street Journal columnist L. Gordon Crovitz wrote a misleading and error-filled column about NSA surveillance on Monday, based on documents obtained by EFF through our Freedom of Information Act lawsuit. Since we’ve been poring over the documents for the last week, we felt it was important to set the record straight about what they actually reveal.
Crovitz:
Edward Snowden thought he was exposing the National Security Agency's lawless spying on Americans. But the more information emerges about how the NSA conducts surveillance, the clearer it becomes that this is an agency obsessed with complying with the complex rules limiting its authority.
That’s an interesting interpretation of the recently released documents, given that one of the two main FISA court opinions released says the NSA was engaged in “systemic overcollection” of American Internet data for years, and committed “longstanding and pervasive violations of the prior orders in this matter.” The court summarized what it called the government’s “frequent failures to comply with the [surveillance program’s] terms” and their “apparent widespread disregard of [FISA court imposed] restrictions.”
Crovitz:
[The documents] portray an agency acting under the watchful eye of hundreds of lawyers and compliance officers.
Again, this is not what the actual FISA court opinions portray. “NSA’s record of compliance with these rules has been poor,” and “those responsible for conducting oversight failed to do so effectively,” FISA court Judge Bates wrote in the key opinion released last week. In another FISA court opinion from 2009, released two months ago, the NSA admitted that not a single person in the entire agency accurately understood or could describe the NSA’s whole surveillance system to the court.
It's true that the number of compliance officers at the NSA has increased in recent years, but as the Washington Post reported, so has the number of privacy violations.
Crovitz:
These documents disprove one of Mr. Snowden's central claims: "I, sitting at my desk, certainly had the authority to wiretap anyone, from you or your accountant, to a federal judge, to even the president if I had a personal email," he told the Guardian, a British newspaper.
Here, Crovitz is setting up a strawman. Snowden wasn’t talking about the NSA’s legal authority, but their technical authority to conduct such searches. Snowden was likely referring to XKeyScore, which the Guardian reported allowed NSA analysts to “search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals.”
We actually have a specific example that proves Snowden’s point. As the New York Times reported in 2009, an NSA analyst “improperly accessed” former President Bill Clinton’s personal email. More recently, we’ve learned that the NSA analysts abused the agency vast surveillance powers to spying on ex-spouses or former lovers.
Crovitz:
The NSA also released the legal arguments the Justice Department used in 2006 to justify collection of phone metadata-the telephone number of the calling and called parties and the date, time and duration of the call.
...
Metadata collection is about connecting the dots linking potential terrorist accomplices. The Clinton administration created barriers to the use of metadata, which the 9/11 Commission concluded let the terrorists avoid detection. Since then, metadata has helped stop dozens of plots, including an Islamist plan to blow up the New York Stock Exchange in 2008.
Again, not true. As Intelligence Committee members Sen. Ron Wyden and Sen. Mark Udall have continually emphasized, there is “no evidence” that the phone metadata program is effective at stopping terrorists. Independent analyses have come to the same conclusion. When called out on that number in a Congressional hearing, even NSA Director Keith Alexander admitted the number was exaggerated.
The only “disrupted plot” the NSA can point to that was solely the work of the phone metadata program was a case where a man from San Diego sent a few thousand dollars to the al-Shabaab organization in Africa in 2008. In other words, the metadata did not disrupt an active terrorist plot inside the US at all.
Crovitz:
The declassified brief from 2006 made clear that such metadata "would never even be seen by any human being unless a terrorist connection were first established," estimating that "0.000025% or one in four million" of the call records "actually would be seen by a trained analyst."
The major 2009 FISA court opinion released in September, that apparently Mr. Crovitz either didn’t read or conveniently left out of his piece, showed that the NSA had been systematically querying part of this phone records database for years for numbers that the agency did not have a “reasonable articulable suspicion” were involved in terrorism—as they were required to have by the FISA court. Of the more than 17,000 numbers that the NSA was querying everyday, the agency only had “reasonable articulable suspicion” for approximately 1,800 of them.
The FISA court concluded, five years after the metadata program was brought under a legal framework, that it had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.”
These documents clearly do not paint a picture of an agency with a clean privacy record and a reputation for following court rules, as Mr. Crovitz claims, and in fact, they show why it is vital Congress passes substantive NSA reform immediately. You can go here to take action.
Related Issues: NSA SpyingIn 2013, we learned digital surveillance by world governments knows no bounds. Their national intelligence and other investigative agencies can capture our phone calls, track our location, peer into our address books, and read our emails. They do this often in secret, without adequate public oversight, and in violation of our human rights.
We won’t stand for this anymore.
Over the past year, nearly 300 organizations have come together to support the International Principles on the Application of Human Rights to Communications Surveillance. These 13 Principles establish a clear set of guidelines that establish the human rights obligations of governments engaged in communications surveillance.
These Principles were developed through months of consultation with technology, privacy, and human rights experts from around the world, and have the backing of hundreds of organizations from around the globe. But today, these Principles are about to receive their most important endorsement: the people’s.
Several of the civil society organizations behind these Principles have come together to launch an Action Center to enable people around the world to lend their name and support to the Principles. We will deliver this petition of signatures to the United Nations, world leaders, and other policymakers who need to hear the voice of the people demanding an end to mass surveillance.
The Principles make clear:
The organizations behind the Action Center include Access, Chaos Computer Club, Center for Internet & Society-India, Center for Technology and Society at Fundação Getulio Vargas, Digitale Gesellschaft, Digital Courage, Electronic Frontier Foundation, OpenMedia.ca, Open Rights Group, Fundacion Karisma, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, SHARE Foundation and Privacy International. Your signatures will be kept in accordance with our privacy policies.
Support the principles by adding your signature, and encouraging those around you to do the same.
SUMMARY OF THE PRINCIPLES
LEGALITY
Limits on the right to privacy must be set out clearly and precisely in laws, and should be regularly reviewed to make sure privacy protections keep up with rapid technological changes.
LEGITIMATE AIM
Communications surveillance should only be permitted in pursuit of the most important state objectives.
NECESSITY
The State has the obligation to prove that its communications surveillance activities are necessary to achieving a legitimate objective.
ADEQUACY
A communications surveillance mechanism must be effective in achieving its legitimate objective.
PROPORTIONALITY
Communications surveillance should be regarded as a highly intrusive act that interferes with the rights to privacy and freedom of opinion and expression, threatening the foundations of a democratic society. Proportionate communications surveillance will typically require prior authorization from a competent judicial authority.
COMPETENT JUDICIAL AUTHORITY
Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
DUE PROCESS
Due process requires that any interference with human rights is governed by lawful procedures which are publicly available and applied consistently in a fair and public hearing.
USER NOTIFICATION
Individuals should be notified of a decision authorising surveillance of their communications and be provided an opportunity to challenge such surveillance before it occurs, except in certain exceptional circumstances.
TRANSPARENCY
The government has an obligation to make enough information publicly available so that the general public can understand the scope and nature of its surveillance activities. The government should not generally prevent service providers from publishing details on the scope and nature of their own surveillance-related dealings with State.
PUBLIC OVERSIGHT
States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance. Oversight mechanisms should have the authority to access all potentially relevant information about State actions.
INTEGRITY OF COMMUNICATIONS AND SYSTEMS
Service providers or hardware or software vendors should not be compelled to build surveillance capabilities or backdoors into their systems or to collect or retain particular information purely for State surveillance purposes.
SAFEGUARDS FOR INTERNATIONAL COOPERATION
On occasion, States may seek assistance from foreign service providers to conduct surveillance. This must be governed by clear and public agreements that ensure the most privacy-protective standard applicable is relied upon in each instance.
SAFEGUARDS AGAINST ILLEGITIMATE ACCESS
There should be civil and criminal penalties imposed on any party responsible for illegal electronic surveillance and those affected by surveillance must have access to legal mechanisms necessary for effective redress. Strong protection should also be afforded to whistleblowers who expose surveillance activities that threaten human rights.
Related Issues: InternationalState Surveillance & Human RightsSan Francisco - An international coalition of human rights and privacy organizations today launched an action center to oppose mass surveillance on the global stage: necessaryandproportionate.org/take-action. The new petition site went live just as the United Nations voted on a resolution to recognize the need for the international community to come to terms with new digital surveillance techniques.
The Electronic Frontier Foundation (EFF), along with Access and Privacy International, took a leadership role in developing the campaign. The new action center allows individuals from around the world to sign their names to a petition in support of the "International Principles on the Application of Human Rights to Communications Surveillance." Also known as the "Necessary and Proportionate Principles," the document outlines 13 policies that governments must follow to protect human rights in an age of digital surveillance—including acknowledgement that communications surveillance threatens free speech and privacy and should only be carried out in exceptional cases and under the rule of law.
Once the signatures are collected, the organizations will deliver the petition to the UN, world leaders and global policymakers. Over 300 organizations, plus many individual experts, have already signed the petition.
"Surveillance can and does threaten human rights, " EFF International Rights Director Katitza Rodriguez said. "Even laws intended to protect national security or combat crime will inevitably lead to abuse if left unchecked and kept secret. The Necessary and Proportionate Principles set the groundwork for applying human rights values to digital surveillance techniques through transparency, rigorous oversight and privacy protections that transcend borders."
Today, the UN General Assembly's unanimously adopted Resolution A/C.3/68/L.45, "The Right to Privacy in the Digital Age." Sponsored by 47 nations, the non-binding resolution recognizes the importance of privacy and free expression and how these core principles of democracy may be threatened when governments exploit new communications technologies.
"While not as strong as the original draft resolution, the United Nations resolution is a meaningful and very positive step for the privacy rights of individuals, no matter what country they call home," Rodriguez said. "We will be watching to see if countries such as China, Russia or even the US use the resolution to legitimize their mass surveillance programs. That is why it's important for nations to go further and comply with the Necessary and Proportionate principles."
The organizations behind the Action Center include Access, Chaos Computer Club, Center for Internet & Society-India, Center for Technology and Society at Fundação Getulio Vargas, Digitale Gesellschaft, Digital Courage, EFF, OpenMedia.ca, Open Rights Group, Fundacion Karisma, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, SHARE Foundation, and Privacy International.
EFF's web development team designed the action center using the same activism platform the organization has successfully deployed in campaigns on the state and federal level in the US, this time adapting it to the scale of an international movement.
For more information on the petition and principles, read Rodriguez's blog post.
Contact:Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation
katitza@eff.org 415-800-4985
After more than two years of community discussions and many drafts, the nonprofit Creative Commons has released a new version of its popular copyright license suite. These licenses allow rightsholders to release some of the exclusive rights associated with copyright while retaining others, in a way that’s easy for re-users, indexable by computers, and that stands up to legal review in many countries.
Version 4.0 accomplishes some ambitious goals, but sticks to the spirit of earlier licenses, so that it shouldn't disrupt existing uses. In several places, the text has been clarified to better reflect the way the public uses the licenses in practice. The attribution requirements, for example, have been slightly adjusted to better accommodate the way re-users are typically providing attribution, by expressly allowing attribution to come in the form of a link to a separate "credits" page.
Among the most notable changes, version 4.0 breaks with the earlier practice of "porting" licenses to different jurisdictions, and is now designed to work all over the world. In the same vein, Creative Commons will provide official translations of the license deeds so that licensors and licensees can read the text in the local languages.
That change works towards another goal of the 4.0 license suite: to be flexible and robust enough to support new uses for many years without requiring any major version updates. Version 3.0 was released in February 2007 and has worked effectively for the last five years; the hope is that this new version can be used for even longer.
One of the primary reasons to use a popular license suite like Creative Commons instead of writing your own set of permissions is that it reduces the problem of "license proliferation." The planned longevity of Creative Commons 4.0 licenses also keeps with that goal, giving licensors plenty of time to get on the latest version.
Encouragingly, Creative Commons reached this final version through a completely transparent process. Goals were laid out in public discussions at a 2011 global summit, and continued in blog posts, open meetings, and mailing lists for the following two years. As a result, the licenses have the legitimacy of public consensus and the motivations for changes are well understood.
Contrast that process with the secretive copyright policy discussions happening in closed backroom negotiation sessions for trade agreements like the Trans-Pacific Partnership (TPP), and it's clear why groups like EFF understand that the "official" approach is broken. Creative Commons licenses are real legal documents that set effective policy for hundreds of millions of works across the Web—there's no reason they can't also be a model for effective and transparent policy-making.
It was a welcome development then, if not a major surprise, to see Creative Commons issue a policy statement last month supporting fundamental copyright reform around the globe.
Between that policy statement and the new licenses, Creative Commons is doing good work towards enabling its long-held vision of universal access to research and education, and full participation in culture. EFF is a proud to use Creative Commons licenses for all the original material on our site.
image by Creative Commons, used under CC BY 4.0.
Related Issues: Intellectual PropertyWe’ve heard from lots of folks who are passionately concerned about the NSA’s mass spying, but are struggling to get their friends and family to understand the problem and join the over a half-million people who have demanded change through stopwatching.us and elsewhere.
Of course, you can show them the Stop Watching Us video and this great segment from Stephen Colbert. And if you’d like a detailed refresher on all the ways NSA is conducing mass surveillance, ProPublica has a handy explainer here.
You can also check out this new video from filmmaker Brian Knappenberger (writer and director of We Are Legion: the Story of the Hacktivists):
Note: clicking this thumbnail will take you to the New York Times' website.
But you also need to be prepared to respond to the common refrains of folks confused, nonplussed, or simply exhausted from the headlines. So here’s a cheat sheet to help you talk about the NSA spying when you’re with family and friends.
I have nothing to hide from the government, so why should I worry?
There are a few ways to respond to this, depending on what you think will work best for the person raising the question.
Isn’t the NSA using the mass spying to stop terrorists?
Even the NSA cannot point to a single terrorist attack they’ve stopped using the Patriot Act phone surveillance program that sweeps up virtually every phone record in the United States. They’ve thrown out many numbers claiming that the information was helpful in some capacity, including repeatedly claiming that it thwarted some 54 attacks, but those numbers have been thoroughly debunked.
The only remaining example the NSA points to is known as the “Zazi case.” However, in that case, the Associated Press reported that the government could have easily stopped the plot without the NSA program, under authorities that comply with the Constitution. Sens. Ron Wyden and Mark Udall have been saying this for a long time.
That’s the point here: we can stop terrorists with law enforcement authorities that this country has been using for decades. We don’t need to upend the Constitution to keep the nation safe.
The government will not abuse its power.
Some people believe that the government will never abuse its power, especially when the party they support is in office. You should remind these people that the government has a long history of overstretching its surveillance powers and using that information to try to blackmail people. Example of this include the NSA spying on Martin Luther King Jr., Muhammad Ali, and even some sitting senators in the 1960s. Imagine how Sen. Joe McCarthy’s investigations might have gone if he had access to this kind of spying.
We already have evidence of abuse of power. We know that the NSA analysts were using their surveillance powers to track their ex-wives and husbands, and other love interests. They even had a name for it, LOVEINT. The FISA court has also cited the NSA for violating or ignoring court orders for years at a time. And those are just self-reported abuses. An independent investigation might reveal even more.
Allowing mass spying is patriotic.
Stopping untargeted seizure of information is one of the key reasons we fought the War of Independence and drafted the Fourth Amendment. During colonial times, the "crime" was tax evasion—remember the Boston Tea Party? The British crown issued Writs of Assistance, which were general warrants that allowed the British authorities to search through anyone’s papers in order to find those who were skirting the taxes. American patriot James Otis Jr. argued against the “hated writs” but lost his case in the British courts. John Adams noted that from that case, “the child independence was born.”
Since that time, warrants have had to specify the persons and places searched. Mass surveillance by the NSA does neither. In short, one of our countries’ founding principles is the prohibition on mass searches and seizures.
Kids today (or my friends) post everything they do on Facebook or Twitter, why should we care if the government can see too?
What people choose to put on Facebook or Twitter (or Instagram or Tumblr or some other service) is almost always curated. People put the best or sometimes the worst things that happen to them online, but studies show they still keep things private, and restrict the audience for other information. A new poll shows young people may even be more privacy conscious than older adults.
We all know someone whose Facebook feed continued to show happy pictures even as they went through a terrible breakup or divorce. The point of privacy is control over the information that is available about you. Some people choose to share more, some choose to share less, but nearly everyone wants the power to pick and choose what information is available about them to their friends and to strangers, like future employers or NSA agents.
Google and Facebook have my information, so why shouldn’t the NSA?
There are many privacy problems with how the giant Internet companies gather and use so much of your personal data. However, Google and Facebook do not have the power to arrest you and, unlike government surveillance, there are other choices for communication tools. For example, you can use DuckDuckGo instead of Google search.
Remember: while we may not like how companies collect a lot of our information, they are not under the same requirement to follow the Fourth Amendment. We need to protect the private information held by companies too, but the Constitution provides a foundation that always protects our communications from the prying eyes of government.
It’s just metadata, so why should I care?
For the mass phone record collection program, the NSA has said it is not “listening in” to telephone calls. Instead they are collecting a record of everyone you call, who calls you, when you’re on the phone, the length of your phone call, and at times, even your location.
This "metadata" can be as invasive as the content of your conversations. It can reveal your religious and political views, who you are dating (and when you break up), who your spouse and children are, your movements, and even information your closest friends and family don’t know, such as medical conditions.
Additionally, the government is getting more than just metadata. We also know the government has obtained online content, including email, under separate programs, and used the data based on a guess that you are 51 percent likely to be foreign, by scanning large a portion of the total number of emails entering and exiting the United States. Metadata is only a part of the government spying programs.
This sucks, but there’s nothing I can do!
Actually there is plenty you can do! First, join the over half-million others and sign our petition at stopwatching.us. Then call your representative in Congress—there are bills going through Congress right now that could curtail some of this spying and bring real transparency and accountability to the NSA. There are also some that need to be opposed so we don’t end up legalizing much of this illegal surveillance.
There’s lots you can do to fight NSA surveillance. But one of the most important things you can do is explain why this issue is important to friends and family. So please share this guide widely.
Related Issues: NSA SpyingThe latest supporters of robust patent reform—the kind that we're optimistic will come out of the Innovation Act—are more than 60 law professors. These professors, led by by Prof. Brian J. Love, sent a letter to Congress today joining the chorus of many disparate groups, such as venture capitalists and inventors, who have called on Congress to pass reform that would stem the harm patent trolls are wreaking on the innovation economy.
As the professors write:
Brazen patent owners have been known to assert patents they actually do not own or, conversely, to go to great lengths to hide the fact that they actually do own patents being used in abusive ways. Some patent owners have also sought double recovery by accusing companies selling or using products made by manufacturers that already paid to license the asserted patent. Still others have threatened or initiated litigation without first disclosing any specific information about how, if at all, their targets arguably infringe the asserted patents.
The professors' letter will especially resonate because as they write:
We also wish to stress that as scholars and researchers we have no direct financial stake in the outcome of legislative efforts to reform our patent laws. We do not write on behalf of any specific industry or trade association. Rather, we are motivated solely by our own convictions informed by years of study and research that the above proposals will on net advance the best interests of our country as a whole.
It looks likely that the House of Representatives will be voting on the Innovation Act before the end of 2013. We hope you'll join EFF, 60+ law professors, and the many, many others who think the world will be better off if it becomes law.
Files: prof_ltr_nov_25.pdfRelated Issues: PatentsLegislative Solutions for Patent ReformPatent TrollsPrivacy may not be the only casualty of the National Security Agency’s massive surveillance program. Major sectors of the US economy are reporting financial damage as the recent revelations shake consumer confidence and US trade partners distance themselves from companies that may have been compromised by the NSA or, worse, are secretly collaborating with the spy agency. Member of Congress, especially those who champion America’s competitiveness in the global marketplace, should take note and rein in the NSA now if they want to stem the damage.
The Wall Street Journal recently reported that AT&T’s desired acquisition of the European company Vodafone is in danger due to the company’s well-documented involvement in the NSA’s data-collection programs. European officials said the telecommunications giant would face “intense scrutiny” in its bid to purchase a major cell phone carrier. The Journal went on to say:
“Resistance to such a deal, voiced by officials in interviews across Europe, suggests the impact of the NSA affair could extend beyond the diplomatic sphere and damage US economic interests in key markets.”
In September, analysts at Cisco Systems reported that the fallout “reached another level,” when the National Institute of Standards and Technology (NIST) told companies not to use cryptographic standards that may have been undermined by the NSA’s BULLRUN program. The Cisco analysts said that if cryptography was compromised “it would be a critical blow to trust required across the Internet and the security community.”
This forecast was proven true in mid-November, when Cisco reported a 12 percent slump in its sales in the developing world due to the NSA revelations. As the Financial Times reported, new orders fell by 25 percent in Brazil and 30 percent in Russia and Cisco predicts its overall sales could drop by as much 10 percent this quarter. Cisco executives were quoted saying the NSA’s activities have created "a level of uncertainty or concern" that will have a deleterious impact on a wide-range of tech companies.
It is hard for civil libertarians to shed tears over AT&T losing business because of NSA spying, considering the company allowed the NSA to directly tap into its fiber optic cables to copy vast amounts of innocent Americans’ Internet traffic. AT&T was also recently revealed as having partnered with both the DEA and the CIA on separate mass surveillance programs. It is also hard to feel sorry for Cisco, which stands accused of helping China spy on dissidents and religious minorities. But the fact that the spying is hurting these major companies is indicative of the size of the problem.
This summer, European Parliament’s civil liberties committee was presented with a proposal to require every American website to place surveillance notices to EU citizens in order to force the US government to reverse course:
“The users should be made aware that the data may be subject to surveillance (under FISA 702) by the US government for any purpose which furthers US foreign policy. A consent requirement will raise EU citizen awareness and favour growth of services solely within EU jurisdiction. This will thus have economic impact on US business and increase pressure on the US government to reach a settlement.” [emphasis ours]
Meanwhile, Telenor, Norway’s largest telecom provider has reportedly halted its plans to move its customers to a US-based cloud provider. Brazil seems to be moving ahead to create its own email service and require US companies locate an office there if they wish to do business with Brazilian customers.
Laws like this mean that companies like Google “could be barred from doing business in one of the world’s most significant markets,” according to Google’s director for law enforcement and information security at Google, Richard Selgado. Google has been warning of this as far back as July, when in FISA court documents it argued that the continued secrecy surrounding government surveillance demands would harm its business.
Many commentators have been warning about the economic ramifications for months. Princeton technologist Ed Felten, who previously at the Federal Trade Commission, best explained why the NSA revelations could end up hurting US businesses:
“This is going to put US companies at a competitive disadvantage, because people will believe that U.S. companies lack the ability to protect their customers—and people will suspect that U.S. companies may feel compelled to lie to their customers about security.”
The fallout may worsen. One study released shortly after the first Edward Snowden leaks said the economy would lose $22 to $35 billion in the next three years. Another study by Forrester said the $35 billion estimate was too low and pegged the real loss figure around $180 billion for the US tech industry by 2016.
Much of the economic problem stems for the US government’s view that it’s open season when it comes to spying on non-U.S. persons. As Mark Zuckerberg said in September, the government’s position is“don’t worry, we’re not spying on any Americans. Wonderful, that’s really helpful for companies trying to work with people around the world.” Google’s Chief Legal Officer David Drummond echoed this sentiment last week, saying:
“The justification has been couched as 'Don't worry. We're only snooping on foreigners.' For a company like ours, where most of our business and most of our users are non-American, that's not very helpful."
Members of Congress who care about the US economy should take note: the companies losing their competitive edge due to NSA surveillance are mainstream economic drivers. Just as their constituents are paying attention, so are the customers who vote with their dollars. As Sen. Ron Wyden remarked last month, “If a foreign enemy was doing this much damage to the economy, people would be in the streets with pitchforks.”
Related Issues: NSA SpyingWashington, DC - Lawyers from the Electronic Frontier Foundation (EFF) will appear before the US Court of Appeals for the District of Columbia Circuit on Tuesday morning to argue for the release of a secret legal opinion on the federal government’s surveillance authority. For nearly three years, EFF has sought, under the Freedom of Information Act (FOIA), the disclosure of a document produced by the Office of Legal Counsel (OLC) that the FBI claims provides it with the authority to obtain private call-detail records in "certain circumstances," without any legal process or a qualifying emergency.
Who: EFF Staff Attorney Mark Rumold, who will be delivering the oral argument, and EFF Senior Counsel David Sobel
What: Oral argument in Electronic Frontier Foundation v. US Department of Justice (Case Number 12-5363)
When: 9:30 am (EST), Tuesday, Nov. 26, 2013
Where: Barrett Prettyman US Courthouse
333 Constitution Ave., NW Washington, DC 20001.
US Court of Appeals Courtroom - Judges Srinivasan, Edwards, & Sentelle
Media Availability: EFF attorneys will be available for comment immediately after the hearing at the courthouse.
In January 2010, the US Department of Justice's Office of the Inspector General released a report on the FBI's use of "exigent letters and other informal requests" to obtain telephone records from phone companies. The report described an OLC opinion that determined the federal government could obtain call records without legal process and without citing an emergency situation to justify the data collection. The OLC's determination appears to directly conflict with the Stored Communications Act, a federal privacy law that safeguards customer call records from disclosure to the government without valid legal process.
EFF submitted a FOIA request for the documents in February 2011, which the DOJ rejected. EFF filed its lawsuit in DC in May 2011 and appealed when the district court sided with government.
"The public has a fundamental right to know how the federal government is interpreting federal surveillance and privacy laws," Staff Attorney Mark Rumold said. "These interpretations affect wide swaths of society—the public, communications providers, and federal agencies—and the government cannot be allowed to shield its interpretations of law from public scrutiny. Secret surveillance law simply has no place in a democratic society."
Contacts:Mark Rumold
Staff Attorney
Electronic Frontier Foundation
mark@eff.org
David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org
“Oh no!” said the email that went round the EFF office on Friday. Could it be true that the Beastie Boys had unleashed the legal hounds to shut down a parody ad that uses the group's classic misogynistic ditty, “Girls”? Surely not. As remix pioneers, the Beastie Boys are the veterans of many legal battles against copyright maximalists. The Beastie Boys aren’t copyright bullies, they fight those bullies. Right?
Wrong, at least this time. The Beastie Boys and Universal Music have indeed accused the video's creator, toy company GoldieBlox, of copyright infringement. Happily, GoldieBlox not only refused to be intimidated, it decided to go on the offensive, filing a complaint asking a federal court to declare that the ad was a lawful fair use.
It's unclear how strong the legal threats were—they aren’t attached to the complaint—but GoldieBlox is clearly worried not just about an infringement lawsuit, but any effort to abuse the DMCA to take down the video just as the holiday shopping season gets under way.
The Beastie Boys famously object to the use of their music in any advertising. Adam Yauch explicitly mentioned it in his will. Nonetheless, GoldieBlox should win on the merits. Here’s why.
The fair use analysis turns on four factors, considered together in light of the purposes of copyright. The first factor, the purpose of the use, considers whether the use transforms the original work to create something new and different and also, to a lesser extent, whether it is commercial. In this case, the use is clearly transformative. GoldieBlox describes itself as a company “on a mission to inspire the next generation of female engineers.” To promote its toys and its mission, it took a song that has been widely criticized for its characterization of women and rewrote the lyrics to tell a different story. Instead of “Girls, to do the dishes; Girls, to clean up my room” (the original lyrics), we hear “Girls, to build a spaceship; Girls, to code the new app” etc. There's an obvious commercial element – it’s an advertisement - but that doesn’t end the analysis, especially when the use is highly transformative. This factor favors GoldieBlox.
The second factor considers the nature of the original work: whether it is more or less creative, and whether it is published or unpublished. Copyright tends to give greater protection to creative works like “Girls,” but that need for protection may be mitigated where, as here, a song is long since published and the creator has had ample chance for compensation. This one is a draw, or at most slightly favors the Beastie Boys.
The third factor considers whether GoldieBlox used more of the original work than needed for the purpose. This factor also favors GoldieBlox. The ad uses the instantly recognizable basic tune, but strips out the drum beat and original vocals. While it runs two minutes (most of the length of the original published recording), that’s no more or less than necessary to let the Rube Goldberg machine depicted in the ad run its course. GoldieBlox could have made a less intricate machine, of course, but that would have undermined the purpose of showing the amazing creative engineering girls can do.
As for the fourth factor, market harm, it’s hard to imagine what market is harmed. Sure, the Beastie Boys may have a potential market for licensing songs for commercials (albeit one they chose not to pursue), but this is different—the purpose is an explicit parody. As the Supreme Court has recognized, critical transformative uses rarely if ever supplant markets for the original material.
Taken together, the factors favor fair use. Moreover, the video furthers the purposes of copyright. It serves the public interest by advancing political criticism and debate regarding sexist stereotypes about girls and engineering. What is more, it’s a classic example of growing the cultural commons by remaking existing cultural works to create new insights and expression. That kind of creativity what fair use is for. And it’s part of what made the Beastie Boys great.
On the merits, then, the fair use analysis is solid. But expect to hear this counterargument: that one of the most basic “copyrights” is the right to control how your work is used—including whether it is used at all. Proponents of this kind of claim will often invoke J.D. Salinger’s steadfast opposition to any adaptions of his works. But the argument forgets that every copyright set out in the Copyright Act is subject to numerous exceptions – including fair use. Copyright ≠ total control.
Sorry, Beastie Boys, you got this one wrong. We hope you and Universal Music do the right thing—or that a court does it for you.
Journalists, bloggers and others who speak out against the powerful risk terrible repercussions for their work. Around the world, they face physical intimidation, violent attacks, and even murder for speaking out.
When such crimes are committed against those who exercise their right to free speech, the perpetrators all too often go unpunished. Those who are meant to enforce the law turn a blind eye. The oppressors can act with absolute impunity.
Every November 23rd, free speech organizations around the world draw attention to these travesties of justice in a Day To End Impunity. The number of uninvestigated crimes and unsolved murders of journalists makes for depressing reading—as does the slow but inexorable increase in victims who are targeted for their online work. Since 1993, the Committee to Protect Journalists have recorded the deaths of twenty-nine online reporters who were murdered for their work. Seventeen of those crimes went unsolved and unpunished.
But in a digital world, it's not just crimes of physical violence that can chill speech. The spread of surveillance technology means that crimes against privacy can be used to intimidate or limit the work of free speech, too.
Investigative reporter Khadija Ismayilova has been a constant irritant to the ruling cliques of Azerbaijan, exposing corruption and graft in the very highest levels of government. Shortly after CNBC reported on her investigations into the wealth of the family of President Ilham Aliyev, intimate videos recorded by a surveillance camera hidden in her bedroom were distributed online. It was a clear attempt to discredit her.
Those who planted that camera were never punished. Instead, Ismayilova herself has forced by a local court to sweep the streets of her country, completing a 220 hour community service punishment for attending a peaceful protest in Baku.
In Venezuela and Russia, opposition reporters' private phone conversations are selectively played on the state media. In Russia, lawyer and blogger Alexei Navalny found a surveillance device in his home.
In the United States, PEN American Center has documented the effect of apparently uncontrolled surveillance on reporters and writers in the United States. Elsewhere, agents of the "Five Eyes" governments are apparently spying on the internet traffic of users in other countries, in direct contravention of local laws, and with complete impunity.
Crimes against privacy are a small but growing part of the selective lawlessness that is deployed against writers and creators in order to silence them. Surveillance is a more shadowy form of lawlessness than, for instance, the vicious and unresolved mass murder of 32 journalists in Sri Lanka in 2009, which the Day against Impunity memorializes. But, in a century where governments have conspired to weaken privacy protections online, and have chosen to diminish the illegality and immorality of ubiquitous surveillance, its specter will only grow in power and importance.
Free speech needs privacy. Unlawful surveillance against writers and speakers must be investigated and punished, and never excused or ignored. We cannot let a culture of impunity grow around crimes of surveillance.
To find out how you can help in the fight against impunity, see the Day Against Impunity website.
Related Issues: Free SpeechBloggers Under FireInternationalState Surveillance & Human RightsCivil society groups are coming out in force against the secretive Trans-Pacific Partnership (TPP) negotiations, following Wikileaks' publication of the “Intellectual Property” chapter. The leaked chapter confirmed our worst fears that TPP carries Hollywood's wishlist of policies, including provisions to encourage ISPs to police user activities and liability for users for simply bypassing digital locks on content and devices for legal purposes. Public interest groups and advocates are making a renewed demand for transparency in negotiations and ask that negotiators ensure users' interests are fairly balanced against those of Big Content.
As part of the Fair Deal Coalition, representing Internet users, schools, libraries, people with disabilities, tech firms, and others, we have sent an open letter to TPP negotiators and government leaders asking them to reject the restrictive copyright provisions as seen in the August 2013 leaked text. As they stand, the harmful proposals—set forth mostly by the U.S. and Australia—would limit the open Internet, access to knowledge, harm future innovation, and impose some of the worst features of U.S. copyright law on other countries, without the corresponding limits. In the letter, we ask that negotiators and government representatives stand for users' interests, and respect fundamental rights like due process, privacy, and free speech. The letter is co-signed by over two dozen groups from around the world and has been sent to the leaders of all 12 negotiating countries.
Trade Negotiations Must be TransparentEFF also signed on to a letter led by the Sunlight Foundation to urging government leaders to conduct any further TPP negotiations in a way that upholds the democratic principles of openness and accountability:
In order to ensure that democratic principles are preserved, policy makers, civil society, and members of the public must be given the opportunity to have a level of participation and engagement in this process that is at least equal to that of industry representatives. Attempting to conduct international negotiations in secret has proven untenable in the past, with public opposition swelling when details of the plans are apparently leaked by those in positions of power who share these concerns. We believe that it is time for governments around the world live up to their own rhetoric and extend their commitments to openness and public participation to the Trans-Pacific Partnership and any future negotiations.
The main problem with the TPP is that trade delegates are negotiating this agreement behind closed doors under the undue influence of major entertainment companies and other corporate interests. Most of the 700 members on Trade Advisory Committees are corporate lawyers, and they have almost unlimited access to see and comment on draft texts. Meanwhile, civil society groups have only leaked documents to know what is being proposed in the TPP.
Wikileaks' publication of the “Intellectual Property” chapter is an opportunity for public interest advocates to make these threats known to the public. But it's important to note that there are other chapters on investor rights and e-commerce that are also deeply worrisome. We still do not know how negotiations over those chapters are proceeding and we may not even have a chance to see their text until the agreement is finished and can’t be changed.
The public has a right to know when their government representatives are proposing regulations in their name, especially when it deals with non-trade issues like digital copyright enforcement that will distort or prevent reforms to domestic law. We want to see the drafts of TPP, and the U.S. government’s negotiating position, released after every round of negotiation. Leaks are far from a sufficient substitute for true transparency and a participatory public process.
If you're in the U.S., help us to demand that our lawmakers oppose fast-track. Let's ask Congress to call for a hearing and exercise their authority to oversee the U.S. trade office’s secret copyright agenda.
~
Other Public Interest Statements on TPP:
Big news in patent reform: the Innovation Act, our favorite troll-killing bill, has cleared its first major political hurdle. Yesterday, the House Judiciary Committee resoundingly voted 33-5 to send the bill to the floor. Better yet, the amendment process added back in two pieces we worried were missing—demand letter reform and covered businessed method patent (CBM) review.
First, the good news: this bill is the best shot we've had at meaningful patent reform yet. Specifically, the Innovation Act is designed to target the patent troll problem, something Congress chose to entirely ignore the last time it addressed patents. It includes a provision that would, in certain circumstances, shift fees away to winning parties from the troll who brought the suit and lost. It would also require that trolls present the basic facts about their case the outset, such as who owns the patent and what products allegedly infringe it. It would allow consumers facing trolls to put litigation on hold while the suppliers and manufacturers of products and services at issue fight the fight at hand.
We believe simple common-sense reforms like these would go a long way toward restoring fairness in the system by giving defendants access to information and the tools they need to fight back against trolls.
Second, the news is not all good: in the negotiations leading up to yesterday's vote, the important fee-shifting provision got watered down. And while demand letters and CBM were included at the last minute, those provisions have been so weakened as to barely do anything (indeed, in the case of CBM, the Innovation Act now merely includes a study to investigate that procedure instead of including the necessary expansion to keep it alive). That said, the fact that these provisions remain in the bill at all is important, particularly as we look to the Senate where more bills that squarely address these issues are pendng (more on demand letters here and CBM here).
Stay tuned. Things are moving quickly and we remain cautiously optimistic that we are getting closer to meaningful patent reform.
Related Issues: PatentsLegislative Solutions for Patent ReformPatent Trolls