Aegean Associates, Inc.

In the midst of the major press blitz surrounding its annual I/O Conference, Google dropped some unfortunate news about its instant messaging plans. In several places around the web, the company is replacing the existing "Talk" platform with a new one called "Hangouts" that sharply diminishes support for the open messaging protocol known as XMPP (or sometimes informally Jabber), and also removes the option to disable the archiving of all chat communications. These changes represent a switch from open protocols to proprietary ones, and a clear step backward for many users.

Backsliding on Interoperability

Google's earlier full support for XMPP meant that users could chat with people on other instant message services, or even who host their own chat servers. This kind of decentralization is a good thing: it decreases lock-in to any particular service, which in turn lets the services compete on important factors like quality, uptime, or respect for user privacy.

Some users, for example, may not want to provide Google with information about the content of their messages, or even when and from where they have logged in, or to whom they are chatting frequently. Information about the people that users are chatting with can be sensitive—remember, that data was at the center of an earlier privacy backlash when Buzz, an earlier social effort, made it public by default.

Allowing federation between services lets users make these choices themselves. Here's an explanation of the importance of federation from Google's own documentation of its Talk platform, in a section called "Open Communications":

[Service choice] allows you to choose your service provider based on other more important factors, such as features, quality of service, and price, while still being able to talk to anyone you want.

Unfortunately, the same is not true with many popular IM and VOIP networks today. If the people you want to talk to are all on different IM/VOIP services, you need to sign up for an account on each service and connect to each service to talk to them.

The new Hangouts protocol raises precisely the concerns Google outlines above. Users are given only the choice to use Google's chat servers or to cut themselves off from people who do. Worse, Google users aren't presented with any notice about the change: their buddies who use jabber.org, member.fsf.org, or any number of other XMPP servers, will simply not appear as available for chat.

These changes are the result of Google dropping a particular subset of the XMPP standard—namely server-to-server federation. But for now, Google still supports client-to-server connections, which means that as long as you are logging in with a Google chat account, you can chat using any compliant application.

That's important for a number of reasons. A major one is that no official Google client supports Off-the-Record (OTR) encryption, which is increasingly a critical component of secure online communication. If both participants in a chat are using Off-the-Record encryption, they've got a secure end-to-end line, which means nobody except the two of them—including their service provider—can read their messages.

Changes to History

Unfortunately, another change from Google may force users to make a hard choice about whether to use those external clients like Pidgin, Adium, Gibberbot, or Chatsecure to chat. In particular, the dilemma comes from the way Google has changed how it archives chats and presents them to the user.

Previously, users could disable "chat history," which would prevent instant messages from being saved to to their Gmail account. Under the new settings, users who don't want to keep a copy of their conversations accessible through Gmail must disable the re-named "Hangout History" on an individual basis with each contact.1 The catch is that users can only disable Hangout History with an official Google Hangouts client.

So privacy conscious users who want to use Off-the-Record encryption where possible, but to keep messages out of their Gmail accounts in any case, are out of luck. And if they wish to continue chatting with their friends on Google chat, they can't even take their business elsewhere.

As of last week, Google is prompting users to replace the Android Talk app with Hangouts, and to switch to Hangouts within Gmail in the Chrome browser. Be advised before updating of the cost to openness of making these "upgrades."

What Should Google Do?

In public explanations of its dropping XMPP support, Google has said that it was a difficult decision necessitated by new technical demands. But even if this new protocol responds to different technical requirements, that shouldn't prevent the company from making it public and interoperable. Releasing the specifications for Google Hangouts would be a good first step. Releasing free/open source clients and servers should follow. It's clear that some of Hangouts' video features have been implemented in some very Google-specific ways. But that's no excuse for leading us toward a world where the only practical choices are proprietary chat clients and protocols.

Another easy move that would benefit users would be for Google to support Off-the-Record encryption in its official Hangout clients. If such meaningful privacy options were available to users, it might mitigate the harms of offering privacy settings only via Google's proprietary apps.

In Google's "Open Communications" documentation quoted above, the company explains why it made a commitment to open communication channels:

Google's mission is to make the world's information universally accessible and useful. Google Talk, which enables users to instantly communicate with friends, family, and colleagues via voice calls and instant messaging, reflects our belief that communications should be accessible and useful as well.

We're frustrated and disappointed to see Google take these steps back from that mission.

• 1. To be clear, even the earlier setting was far from perfect from a privacy perspective: disabling chat history only kept the logged messages out of your Gmail account, and didn't prevent other users, or Google itself, from keeping a record of the conversation.

Related Issues: PrivacySecurity
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Bad facts make bad law: it’s legal cliché that is unfortunately based on reality. We saw as much yesterday, in the case of Ryan Hart v. Electronic Arts.  Presented with a situation that just seemed unfair, the Third Circuit Court of Appeals proceeded to make a whole bunch of bad law that puts dollars ahead of speech.

Here are the facts: Electronic Arts sells a videogame called NCAA Football.; Part of the success of the game is based on its realism and detail—including its realistic digital avatars of college players.  One of those players was Ryan Hart, who played for Rutgers University from 2002 to 2005. NCAA Football did not use Hart’s name, but the game included an avatar with Hart’s Rutgers team jersey number, biographical information, and statistics. Trouble is, no one asked Hart if he wanted to be part of the game. Nor did anyone pay him for it—they couldn’t, because college players aren’t allowed to accept money for any kind of commercial activity. When Ryan discovered the game, he sued EA based on a lesser-known but pernicious legal doctrine, the right of publicity.

The right of publicity a funny offshoot of privacy law that gives a (human) person the right to limit the public use of her name, likeness and/or identity, particularly for commercial purposes like an advertisement. The original idea was that using someone's face to sell soap or gum, for example, might be embarrassing for that person and that she should have the right to prevent it. While that might makes some sense in a narrow context, states have expanded the law well beyond its original boundaries. For example, the right was once understood to be limited to name and likeness, but now it can mean just about anything that “evokes” a person’s identity, such as a phrase associated with a celebrity (like “Here’s Johnny,”) or even a robot dressed like a celebrity. And in some states, the right can now be invoked by your heirs long after you are dead and, presumably, in no position to be embarrassed by any sordid commercial associations. In other words, it’s become a money-making machine.

But there has traditionally been at least one limit on publicity claims: the First Amendment. In a nutshell, courts are supposed to balance a person’s right to control the use of her identity against others’ right to expressive speech – including videogames. Unfortunately, the Third Circuit just threw that balance way out of whack.

The good: The court recognizes that videogames are protected expression under the First Amendment, and that free speech is important. Whew!

The bad: The court embraced the wrong test for balancing a person's commercial interests against free speech. Many courts have sensibly borrowed from trademark law and found that, where the invocation of an identity is part of the expressive purpose, the court should not punish it unless it is in essence a disguised advertisement, e.g., the user is just trying to use a person's name to call attention to an product (like potato chips).

Here, the court went off in an entirely different direction, borrowing instead from copyright law to conclude that only uses that are “transformative” can be protected by the First Amendment. In copyright, whether a work is transformative, i.e., creates something new with a different purpose or character, is an important part of the fair use analysis. However, the court imported a decidely narrow approach to transformativeness: did not consider whether the game as a whole had transformative value, as one would in a copyright case, but focused solely only on how Hart's identity was used or transformed. The court reasoned that since the “digital Ryan Hart does what the actual Ryan Hart” did, i.e. play college football, there was no transformation and Hart’s economic interests trumped EA’s free speech interests. The court was also selective about what it chose to import from copyright, ignoring several other factors relevant to fair use, such as market harm and whether the underlying work is factual (if so, copyright protection is “thinner”).

As a group of video and filmmakers pointed out, the transformation test is a bad fit for publicity rights. The fair use analysis generally balances competing speech interests—those of the original and secondary authors. But there is no speech interest in cashing in on your fame. In addition, copyright law is designed to encourage creativity through economic incentives. No such additional incentive is needed for celebrities.

It’s entirely understandable that a court might sympathize with Ryan Hart. But if the court’s test was applied broadly, it could have a devastating impact on creative works that relate to real people and life stories. For example, the rationale would apply directly to political biographies or biopics like The Social Network. It could even impact news reporting. The appellate court’s decision sends a message to all creators—if you create a work that happens to evoke someone’s identify, and your use isn’t “transformative” enough, your free speech is less important than that person’s ability to milk his or her fame for everything it’s worth.

Finally, the ugly: The Third Circuit expressly embraced a very silly notion: that your name and fame are your “property.”  Nonsense—publicity rights are a limited right to control use of your identify for commercial purposes—nothing more, nothing less.  As we’ve seen with copyrights and trademarks, treating limited monopolies in certain expression this way leads people to embrace broad and dangerous new forms of protection. By treating publicity rights as equivalent to a real property right (in your home, for example), the court gave far too much weight to celebrities’ interest in control over their image and far too little weight to free speech.

Bad facts, bad law. We hope EA appeals this decision, and that the Supreme Court overturns it.

Files:  hart_v._ea_3rd_cir_decision_copy.pdfRelated Issues: Free SpeechVideo GamesIntellectual Property
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According to the New York Times, President Obama is "on the verge of backing" a proposal by the FBI to introduce legislation dramatically expanding the reach of the Communications Assistance for Law Enforcement Act, or CALEA. CALEA forces telephone companies to provide backdoors to the government so that it can spy on users after obtaining court approval, and was expanded in 2006 to reach Internet technologies like VoIP. The new proposal reportedly allows the FBI to listen in on any conversation online, regardless of the technology used, by mandating engineers build "backdoors" into communications software. We urge EFF supporters to tell the administration now to stop this proposal, provisionally called CALEA II.

The rumored proposal is a tremendous blow to security and privacy and is based on the FBI's complaint that it is "Going Dark," or unable to listen in on Internet users' communications. But the FBI has offered few concrete examples and no significant numbers of situations where it has been stymied by communications technology like encryption. To the contrary, with the growth of digital communications, the FBI has an unprecedented level of access to our communications and personal data; access which it regularly uses. In an age where the government claims to want to beef up Internet security, any backdoors into our communications makes our infrastructure weaker.

Backdoors also take away developers' right to innovate and users' right to protect their privacy and First Amendment-protected anonymity of speech with the technologies of their choice. The FBI's dream of an Internet where it can listen to anything, even with a court order, is wrong and inconsistent with our values. One should be able to have a private conversation online, just as one can have a private conversation in person.

The White House is currently debating whether or not to introduce the bill. Here's why it shouldn't:

There's Little Darkness: Few Investigations Have Been Thwarted

The starting point for new legislation should be a real, serious, and well-documented need. Despite the FBI's rhetoric, there are few concrete examples of the FBI's purported need to expand its already efficient all-seeing eye. Current law requires annual reporting by the Department of Justice (DOJ) regarding the use of the government's wiretapping powers; the report includes statistics on how often Federal law enforcement has been impeded in a court-authorized investigation by encryption or has been unable to access communications. These statistics show that this has happened only rarely. In its most recent report—from 2010—DOJ reported that encryption had only been encountered all of 12 times.

Did the encryption stop the investigation, or even prevent the wiretappers from figuring out what was being said? No. The report admits that in all of these instances, police were able to obtain the plain text of communications. Previous years' numbers are similar. Aside from government reports, in 2012 telecommunications companies also revealed that a very low percentage of law enforcement requests for user information were rejected. In AT&T's case, only 965 out of over 250,000 requests for user information were rejected. Overall, the available public statistics don't appear to support the FBI's claims about its inability to access communications.

Law Enforcement Already Has Unprecedented Access

Any requested expansion of FBI surveillance authority has to consider the overall ability of law enforcement to investigate crimes. What the FBI doesn't mention when pushing new backdoors into our communications is that now, due to the shift to digital communications, law enforcement has an unprecedented level of access to, and knowledge of, the public's communications, relationships, transactions, whereabouts, and movements. Law enforcement now can gain 24/7 monitoring of most people's movements using cell phone location data. But that's just the beginning. A glance at the Wall Street Journal's multi-year What They Know project shows some of the treasure troves of data that are being maintained about all of us. By accessing these databases and by using new electronic surveillance technologies law enforcement already has visibility into almost every aspect of our online and offline lives—capabilities beyond the wildest dreams of police officers just a few decades ago.

Indeed, former White House Chief Counselor for Privacy Peter Swire and Kenesa Ahmad argued persuasively in 2011 that, overall, "today [is] a golden age for surveillance"—regardless of whether law enforcement is assured of automatic access to each and every kind of communication, and regardless of whether individuals sometimes succeed in using privacy technologies to protect themselves against some kinds of surveillance.

First, there's information obtained from cell phones. In July 2012, the New York Times reported that federal, state, and local law enforcement officials had requested all kinds of cell phone data—including mappings of suspects’ locations—a staggering 1.3 million times in the previous year. Cell phone companies can create what amounts to detailed maps of our locations and turn them over to law enforcement. Even without asking for cell phone providers' direct assistance, law enforcement has considerable ability to use mobile devices to track us. Federal and state law enforcement have made extensive use of IMSI catchers (also popularly called “stingrays,” after the brand name of one such device). These devices can act as a fake cell phone tower, observing all devices in a certain area to find a cell phone's location in real-time, and perhaps even intercept phone calls and texts.

Laws compelling companies to divulge user information accompany these techniques. For instance, National Security Letters, served on communications service providers like phone companies and ISPs, allow the FBI to secretly demand stored data about ordinary Americans' private communications and Internet activity without any meaningful oversight or prior judicial review. And Section 215 of the PATRIOT Act allows for secret court orders to collect “tangible things” that could be relevant to a government investigation. The list of possible “tangible things” the government can obtain is seemingly limitless, and could include everything from driver’s license records to Internet browsing patterns. The FBI has even broken into individuals' computers to collect data from inside the computers themselves. More backdoors aren't needed.

Backdoors Make Us Weaker and More Vulnerable

CALEA II will force companies with messaging services—from Google to Twitter to video game developers—to insert backdoors into their platforms. But backdoors only make us weaker and more vulnerable. It's ironic that CALEA II may be proposed only months after Congress pushed “cybersecurity” legislation to protect our networks. The notion of mandating backdoors in software is the antithesis of online security, which is why some academics have called it a “ticking time bomb.”

A proposal to expand backdoors into communications software ensures that online hackers, communications company insiders, and nation-states have a direct entrance to attack—and steal from—companies and government agencies. In one notorious example, someone exploited backdoors in a Greek phone company's systems and recorded sensitive conversations involving the Prime Minister. Wiretapping backdoors even affect national security. In 2012, Wired revealed the NSA's discovery and concern that every telephone switch for sale to the Department of Defense had security vulnerabilities due to the legally-mandated wiretap implementation. If politicians are serious about online security, they will not make these security blunders even worse by bringing more sensitive communication technologies under CALEA's scope.

Just last week, an ad hoc group of twenty renowned computer security experts issued a report explaining their consensus that CALEA II proposals could seriously harm computer security. These experts said that a requirement to weaken security with deliberate backdoors “amounts to developing for our adversaries capabilities that they may not have the competence, access or resources to develop on their own.”

And now the Washington Post has reported that intruders, allegedly working on behalf of the Chinese government, broke into Google's existing surveillance systems. (In this case, the report says that the intruders learned who was targeted by these systems, rather than accessing the contents of the targets' accounts or communications—but it's easy to see that wiretap contents would ultimately represent an even bigger target, and a bigger prize. Even more exciting would be the prospect of remotely activating new wiretaps against victims of an intruder's choice.)

Internet Users Have the Right to Secure Communications

Expanding CALEA is not only a tremendous risk for our online security; it's a slap in the face of Internet users who want to protect themselves online by choosing privacy-protecting software to shield their communications. Ordinary individuals, businesses, and journalists want and often need state-of-the art software to protect their communications in an era of pervasive spying by commercial rivals, criminals, and governments around the world. The government's rhetoric takes us back to the early 1990s when US law enforcement spoke openly of banning secure encryption software to keep it out of the public's hands. EFF and others had to fight—including in the Federal courts—to establish the principle that publishing and using encryption tools is an essential matter of individual freedom and protected by the First Amendment.

Once those “crypto wars” were over, the US government seemed to accept the right of Americans to secure communications and abandon the idea of forcing innovators to dumb down these technologies. We turned our concerns to foreign governments, several of whom were trying to ban communications tools for being “too private.” (For instance, the Associated Press reported five countries threatened to ban BlackBerry services in 2010 because the services protected user privacy too well.) Americans, including the US State Department, began supporting the development and distribution of secure communications tools to foreign rights activists who need them. Now this battle may be coming home.

Even with these tools, most Americans can protect only a tiny fraction of the trail of data we leave behind electronically as we live our lives. But we still have the right to choose them and try our best to keep our private communications private.

CALEA Must Not Come Back

The government should place any proposal to expand CALEA on hold. There is little evidence the FBI is actually “going dark,” especially when balanced with all the new information they have access to about our communications. And backdoors make everyone weaker. In a time when “cybersecurity” is supposed to be a top priority in Washington, the FBI is pushing a scheme that directly undermines everyone's online security and interferes with both innovation and the freedom of users to choose the technologies that best protect them. Tell the White House now to stop the proposal in its tracks.

Related Issues: PrivacyCALEAEncrypting the WebNSA SpyingSecurity
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When most people think of a trade agreement, they're unlikely to think that it would have anything to do with regulating the Internet. For more than a decade however, the Office of the U.S. Trade Representative has included copyright enforcement in international trade deals. Such provisions empower countries to enact digital restrictions in the name of preventing illegal file sharing. In practice, these copyright measures strip Internet users of their rights to privacy, free speech, and access to knowledge and culture, and could even work to undermine their very purpose of enabling and promoting innovation and creativity.

Such provisions closely mirror the language carried in the U.S. Digital Millennium Copyright Act (DMCA). Up to this point, we have already seen over 15 years of harmful effects due to the DMCA and now there are widespread efforts in the U.S. to reform it. It's therefore both improper and contradictory for the U.S. Trade Rep to push the U.S. copyright system around the world when our own government recognizes that our system is defective.

This new animated video explains how two provisions of the Trans-Pacific Partnership (TPP) agreement's intellectual property chapter threaten users' rights. First, it creates legal incentives for Internet and online service providers to police their users' activities for copyright infringement. Second, the TPP carries rigid protections for digital rights management (DRM) in ways that could create expansive chilling effects for anyone who wishes to legally share and interact with their content and devices.

Privacy info. This embed will serve content from youtube.com

Please share this video, spread the word about this secretive multinational trade agreement, and let others know how they can help fight it.

Take Action

You can express your concern about these problems — and others — that arise from a secret copyright agenda driving international agreements by signing our petition to stop it.

Wherever you are in the world, you can sign on to this petition directed at decision-makers to demand a Fair Deal.

If you’re in the U.S., take our action to send a message to your representative to demand an end to these secret backroom negotiations.

If you're in Peru, join Hiperderecho and tell the Peruvian president that our rights on the Internet are non-negotiable.

Spread the Word

Our website “Why the Heck Should I Care About the TPP?” lays out some of the worst consequences for Internet users if this agreement were to pass.

Share our infographic about the TPP! We have versions in both English and Spanish.

var mytubes = new Array(1); mytubes[1] = '%3Ciframe src=%22http://www.youtube.com/embed/KOSYMWf2drE?rel=1%26amp;autoplay=1%26amp;wmode=opaque%26?autoplay=1%22 width=%22400%22 height=%22250%22 class=%22video-filter video-youtube vf-kosymwf2dre%22 frameborder=%220%22%3E%3C/iframe%3E'; Related Issues: Intellectual PropertyInternationalTrans Pacific Partnership Agreement
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Today, EFF filed a motion in a secret court.

This secret court isn’t in a developing nation, struggling beneath a dictatorship. It’s not in a country experimenting for the first time with a judiciary and the rule of law. And, as Wired recently noted, it’s “not in Iran or Venezuela, as one might expect.” No, the court is here, in the United States (it’s in Washington, D.C., in fact). It’s called the Foreign Intelligence Surveillance Court (or the FISC), and it reviews the federal government’s applications to conduct surveillance in national security cases. It’s comprised of 11 district court judges from around the country, and its opinions and orders are the law of the United States, like other federal courts.

But the FISC is different from typical courts in one fundamental way: almost everything about the FISC is secret.1 In fact, just being able to publicly say that we filed a motion with the FISC is unusual. Most proceedings are done ex parte (in this context, meaning just with the government and the judge), and any non-governmental parties involved in proceedings are typically forbidden from ever disclosing it. Even when the FISC finds that the government has acted illegally, so far, that illegality has been been kept hidden from public scrutiny and accountability.

EFF is trying to change that. We filed a lawsuit under the Freedom of Information Act (FOIA) after the Department of Justice refused to disclose a FISC opinion we requested. The FISC opinion held that the government engaged in surveillance that was unconstitutional and violated the spirit of federal surveillance laws. We only know the opinion exists because Senators, like Ron Wyden and Mark Udall, essentially forced the government to publicly acknowledge its existence.

So why did EFF file something with the FISC? In response to our FOIA lawsuit—and in an attempt to justify hiding the government’s unconstitutional conduct—the DOJ pointed to the FISC. The DOJ argued the FISC’s procedural rules prohibited DOJ from releasing the opinion under FOIA. But, five years earlier (in response to a separate case brought by the ACLU), the FISC itself said FOIA was the proper avenue to access FISC opinions. In fact, in that case, the DOJ argued that FOIA was the only way the public could access the opinions. So we filed a motion with the FISC to allow that court to definitively resolve whether its rules prohibit the disclosure of its opinions.

But, for the time being, a DOJ-imposed Catch-22 blocks the public from knowing more about the government’s illegal surveillance. According to the DOJ, we can’t use FOIA, because the FISC rules prevent it; and we can’t go to the FISC, because the FISC says FOIA is the proper avenue. If Joseph Heller were alive today, he would be impressed. So, too, would Franz Kafka. A public trapped between conflicting rules and a secret judicial body, with little transparency or public oversight, seems like a page ripped from The Trial.

In fact, simply figuring out how to file the motion was a bit of a nightmare. Not surprisingly, there’s no e-filing with the FISC or public mailing address to send the motion. All we had was a phone number. And all we could do was leave messages and hope the court staff would return our calls.

But, sadly, this isn’t a work of dystopian fiction. This is a product of our democratic system. The government may assert that FISC opinions can’t be disclosed because they would reveal the legal limits of our nation’s intelligence collection capabilities, but the fact that we are a nation of laws is not a vulnerability our enemies may exploit. It is among our greatest national assets.

Granted, it’s likely that some of the information contained within FISC opinions should be kept secret; but, when the government hides court opinions describing unconstitutional government action, America’s national security is harmed: not by disclosure of our intelligence capabilities, but through the erosion of our commitment to the rule of law.

• 1. Another difference is the very limited subject-matter jurisdiction of the court. Although the subject matter of the issues before it is certainly unique, in the federal system, having a restricted jurisdiction is not unique to the FISC

Related Issues: NSA SpyingTransparencyRelated Cases: FISC Orders on Illegal Government Sureveillance
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Today, Sen. John Cornyn (R-Texas) introduced the Patent Abuse Reduction Act, a wide-ranging bill targeting abusive litigation tactics—a favorite tool of the patent troll. 

The good news first. The bill would do significant harm to the patent troll business model, making it harder to be a troll and easier to fight one in court. Patent trolls have long taken advantage of the fact that patent litigation is expensive (costing into the millions of dollars) and can take years, draining companies of resources. Patent trolls are in the very business of litigation and deploy a variety of techniques (shell companies and contingency fee arrangements, for example) to keep their own costs much lower.

The proposed legislation would level this playing field by incorporating one of our favorite reforms, fee shifting. This means that if a party accused of infringing a patent actually fights back in court and wins, the troll could be on the hook. (Unfortunately, the legislation doesn't require the suing party to post a bond—an important tool for deterring patent trolls.) The bill also includes provisions limiting the type and amount of discovery a troll can get and what kind of information a troll needs to disclose at the outset of a lawsuit. The latter is particularly promising because it would force patent trolls to do true due diligence before they sue and to name who is really behind the lawsuit (information that is currently quite difficult to find). These provisions make the troll's case more expensive and takes away another of its favorite tools—secrecy.

The not-so-good news is that these reforms are all litigation focused and, thus, limited. We believe the problem is much bigger. The bill does not address patent quality and fails to consider what the Patent Office could do to help those facing lawsuit threats. It does not include protection for end users, consumers who find themselves staring down patent trolls over widely available technologies. And it fails to address the very root of the problem by not considering whether we should be able to patent software to begin with.

We will continue to raise those issues and fight those fights. In the meantime, we are encouraged to see the introduction of large scale-reform that would go to the heart of the patent troll business model. We hope that those policy makers who have publicly recognized the patent troll problem will join in the upcoming debate on this important legislation.

Files:  patent_abuse_reduction_act.pdfRelated Issues: PatentsPatent Trolls
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There is exciting news out of the Green Mountain State this week: folks in Vermont are so fed up with patent troll abuse that they are taking matters into their own hands. With trolls filing thousands of lawsuits every year and blanketing the country in threat letters, states are looking for ways to protect victims—especially small entities that lack the resources to defend against a patent suit. Vermont is tackling trolls on two separate fronts.

First, the State Attorney General has filed a groundbreaking complaint against the infamous scanner troll MPHJ Technology, alleging unfair and deceptive acts under Vermont's Consumer Protection Act (PDF of the complaint). The tale of the scanner troll is one of the most outrageous patent stories of the year. This troll hides behind an alphabet soup of shell companies and sends demand letters to small businesses all over the country demanding $1,000 per employee for the privilege of using scanners and email.

The Attorney General has zeroed in on letters the scanner troll sent to nonprofits that assist developmentally disabled Vermonters. The AG alleges that the scanner troll did not conduct due diligence before sending these letters and made deceptive statements about its threats of suit and whether other companies had taken a license. At its heart, the complaint alleges that the scanner troll is sending these demand letters in bad faith. To our knowledge, this is the first time a state attorney general has taken action like this against a patent troll. We will watch this case with interest.

Not content to strike back against a single troll, Vermont is also poised to pass a bill dealing with the problem as a whole. The Vermont House and Senate recently passed a bill to combat "bad faith assertions of patent infringement" (H.299, PDF). And the latest word is that Vermont's governor is about to sign it into law.

This bill requires patent demand letters to be specific about the claim being violated, to be particular about how the target is violating the patent, and to give targets a reasonable estimate of the damage costs coupled with a reasonable time to respond. (It's funny: patent trolls usually have broad demands, are vague about violations, and pressure their targets to respond hastily with their purses open.) If a court finds a demand to be meritless or deceptive, they can swing down with full force and lay heavy fines on the bad actors, who are more than likely patent trolls.

This bill could solve some of the patent troll problems in Vermont. Unfortunately, it raises some serious constitutional questions around preemption (the doctrine that federal law invalidates state law when they are in conflict) and federal due process (which generally protects the right to take cases to court or make demands when they're sent in good faith). Vermont lawyer Justin McCabe at Green Mountain IP has a good analysis of the bill's pros and cons.

Apart from important constitutional considerations, passage of the Vermont bill demonstrates just how much patent reform is in the spotlight. Fixes on the national level are popping up like daisies, and—not surprisingly at all—they all attempt to tackle the troll problem from completely different angles. While we admire these bills' creativity, the obvious takeaway from this fact is that there are a lot of areas of the patent system that are very, very broken. So let's take a step back and push for real, comprehensive change.

Related Issues: InnovationPatentsPatent Trolls
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With patent trolls and patent wars creating a massive drag on innovation, a number of companies have investigated ways to navigate the patent system while still promoting openness and competition. Twitter has been especially active in this space—both by fighting back against patent trolls and in giving its own developers a voice through its Innovator’s Patent Agreement (IPA).

When Twitter first proposed the IPA we welcomed it as a creative way to ensure that patents do not fall into the hands of trolls or otherwise become used as weapons. Under the IPA, when a developer assigns a patent to Twitter, the company promises that it will only use the patent for defensive purposes. If the patent is asserted for any other reason, Twitter needs the inventor’s permission. This means that the inventor won’t later be surprised and disappointed to discover her work has been weaponized for an offensive lawsuit. The promise of the IPA is designed to stay with the patent so, even if Twitter sells or otherwise transfers the patent to another company, the inventor can still veto offensive use (this makes the patent effectively useless for trolls).

Today Twitter officially launched the IPA by applying it to U.S. Patent No. 8,448,084 (on pull-to-refresh technology). On the one hand, we are far from thrilled to see money and time devoted to adding one more twig to the thicket of software patents. But today's patent landscape has pressured companies into arming themselves with defensive portfolios. Agreements like the IPA can be a strong signal that a company remains committed to competing in the marketplace rather than the courts. Others are already following Twitter’s lead. We are thrilled to see that four firms—Stack Exchange, Tell Apart, Jelly and Lift—have already said they will apply the IPA to their own patents.

We still need fundamental changes to the patent system to deal with the flood of low quality software patents and the explosion of patent trolling.  But the IPA is a promising development and a great way to empower innovators. If the IPA is widely adopted we should see fewer lawsuits, more competition, and inventors having a bigger voice.

Related Issues: InnovationPatents
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The journalism world has been rightly outraged by the Justice Department dragging the Associated Press (and now a Fox News reporter) into one of its sprawling leak investigations. As we wrote last week, by obtaining the call records of twenty AP phone lines, “the Justice Department has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news."

But there are several other important lessons that this scandal can teach us besides how important free and uninhibited newsgathering is to the public’s right to know.

1.  Weak Privacy Laws That Doomed AP Affect Everyone

The AP detailed in its letter to the Justice Department how its privacy was grossly invaded even though the government accessed only the call records of its reporters and not the content of their conversations. We completely agree. Unfortunately, this isn’t just a problem in the AP investigation. Law enforcement agencies routinely demand and receive this information about ordinary Americans over long periods of time without any court involvement whatsoever, much less a full warrant.

For example, according to information released by the phone companies to Rep. Ed Markey, Sprint alone received a staggering 500,000 subpoenas for call records data last year.

The DOJ's decision to dive into these call records shows the growing need to update our privacy laws to eliminate the outmoded Third Party Doctrine—which holds that anything you give to a service provider, or that a service provider collects as part of providing you a service—can retain no reasonable expectation of privacy. In an era where email is stored by our providers, cellphone companies keep records that track our location and cloud services hold our documents, it’s long past time to bring our interpretation of the Fourth Amendment and statutory electronic privacy laws in compliance with the 21st Century.  

In response to the AP scandal, a bipartisan coalition in Congress just introduced a bill to partially fix this problem called The Telephone Records Protection Act. The bill would require the Justice Department to get a judge’s approval before seeking these records. At EFF, we think the government should have to go even further than a court order: a judicial warrant showing the kind of probable cause required by the Fourth Amendment should be the standard. But this bill is certainly an improvement over administrative subpoenas, which don’t need a sign-off from a judge at all and allow the Executive branch to seek information without any external check.

2.  Phone Companies May Give Up Your Information Without Telling You

As the New York Times reported, the AP is still examining if and when any telephone companies tried to push back on the overbroad requests for its call records. “But at least two of the journalists’ personal cellphone records were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena,” the Times said. And it also seems clear that the AP itself wasn’t given notice before their phone company turned over the records.  

In EFF’s 2013 “Who Has Your Back” report, which tracks several ways in which communications companies can help protect user privacy, we give a star for promising to notify users about government demands for data whenever whenever the company is not legally prevented from doing so. Notably, Verizon does not have such a notification policy and did not receive a star. In fact, Verizon was the only company to receive zero stars.  

This isn’t a small problem or just a problem for journalists. Verizon received 260,000 similar subpoenas for call records last year. The government requests this information with regularity, and given the phone companies control the data, communications company policies are all that stand between you and governmental overreach. 

Users should demand that their communications companies notify them when the government comes seeking information, unless they are legally barred by a court order.

3.  Government often Overstates National Security Claims, Overclassifies Information

We’ve written many times about the many ways “national security” has been invoked—and exaggerated—in order to cover up government embarrassment or wrongdoing, or to assert powers that would normally not be granted under the Constitution. The government routinely overclassifies information that should never be secret, according to reports commissioned by the White House itself.

The most glaring example for EFF is our lawsuit over the NSA warrantless wiretapping program, where the government won’t admit or deny that the program even exists, citing the danger to national security, despite thousands of pages of public evidence. The government has argued the same thing in cases about torture and the CIA drone program where, many times, the same information that they claim is secret is on the front pages of the nation’s newspapers.

In the AP’s case, while Attorney General Holder says this leak put “lives at risk,” John Brennan said the opposite around the time of the story (“Brennan said the plot was never a threat to the U.S. public or air safety,” reported Reuters). The AP also held its story for six days until the CIA told them it was safe to publish and the White House had a news conference planned the day after the story to announce the successful counterterrorism operation.

As the late Supreme Court Justice Hugo Black once said, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

4.  There’s Not Much Recourse For Prosecutorial Misconduct

In this case, just like the case of Aaron Swartz, there has been widespread criticism that the Justice Department has abused its authority and aggressively pursued parties in an unprofessional manner. As we detailed last week, it seems the Justice Department didn’t follow its own guidelines when issuing subpoenas for the reporters records, or at least went to the very edge of its own guidelines.

Just like in the Swartz case, the specific prosecutor has a history of over-aggressive prosecutions (even being accused of overzealous prosecution by Eric Holder himself when he was in private practice). Yet when Congress asked Holder at a hearing about the allegations, just like in the Swartz case, he did not admit to any wrongdoing, and was able to deflect questions about his department’s handling of the case. Unfortunately, there is not much recourse for meaningful remedy for the public in these situations, and this case is just the latest example.

5.  Journalists Need to be Pro-Active in Protecting Their Digital Security

In an age where warrantless surveillance is skyrocketing and governments potentially have access to an astonishing amount of information, journalists must learn to proactively protect both themselves and their sources.

The Committee to Protect Journalists Journalist Security Guide is an excellent place to start. It addresses concerns faced by journalists working inside the United States and internationally.

Wired published an op-ed last week about the care one needs to take from the source’s end if one wishes to send information to the press undetected. Much of the advice is applicable to reporters talking to sources as well. Additionally, the New Yorker has just released a promising—but un-tested—anonymous leak submission system, coded by Aaron Swartz before he tragically died in January. In certain circumstances physical mail remains the safest option.

Overall, the final lesson is that journalists, and sources, need to take security seriously. Trusting that the government won’t come after you because you’re engaged in journalism, serving the public interest, or helping reveal wrongdoing is plainly not sufficient.

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EFF has been on the ground in Lima, Peru for the 17th round of Trans-Pacific Partnership (TPP) negotiations. The TPP is a secretive, multinational trade agreement, and one chapter carries overreaching copyright enforcement provisions that pose a huge threat to the Internet and users' access to devices and digital content.

This is a video from a protest outside the J.W. Marriott where TPP talks are taking place. Katitza Rodriguez, EFF's International Rights Director, talks about how U.S. negotiators of the TPP aim to create a global norm of copyright enforcement by mirroring terms of the Digital Millennium Copyright Act in this treaty. This impacts the U.S. and other countries' ability to maintain or enact their own balanced innovation policies. Besides a few leaks of previous drafts, the text of the agreement is completely secret and civil society continues to be shut out of the process.

Privacy info. This embed will serve content from youtube-nocookie.com

If you’re in the U.S., please also send a message to your representative to demand an end to these secret backdoor negotiations:

Don’t Let Them Trade Away Our Internet Freedoms

Sign our petition to Michael Froman, the next head of the U.S. trade office leading negotiations in the TPP. We demand that he usher in a new age of transparency as the next US Trade Representative:

Stop USTR Secrecy

And if you're in Peru, join Hiperderecho and tell the Peruvian president that our rights over the Internet are non-negotiable:

Pidamos juntos límites no negociables

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Representative Ted Deutch (D-FL) introduced a new transparency bill last week called the End Anonymous Patents Act (H.R. 2024, PDF)—the third piece of legislation in the last year to take on the problem of patent trolls.

The bill sets out to solve what Professor Colleen Chien refers to as the "Who Owns What" problem: we currently don't have an effective way of confirming who owns a particular patent, nor do we know what patents a particular person or company owns. A combination of poor record-keeping infrastructure and practices, as well as scheming businesses that transfer patent ownership to shell companies, has resulted in a hazy patent system where the lack of transparency has become a competitive tool. Rep. Deutch's bill provides a welcome fix to a legitimate problem with patent transparency, but repairing one component still leaves us with a broken machine. Real patent reform must be bigger.

The law already requires parties to file notice when a patent's ownership is transferred at the Patent Office, but this bill would put real teeth in these provisions (which are often ignored) by making sure a patentee cannot collect damages if they had failed to meet this requirement. The term "real party in interest" means the person or entity that would benefit from a lawsuit; this bill would require real parties in interest to be disclosed to the Patent Office, including disclosure of "any entity that has the legal right to enforce the patent through an infringement action." For example, the patent troll Intellectual Ventures notoriously hides behind more than 2,000 shell companies. This shell game allows parties who benefit from settlements and licenses to remain secret the whole time, and such companies have the ability to hide until an infringement case passes their way.

Currently, the patent system's structure makes it nearly impossible to know which patent belongs to what company. An excellent study by Tom Ewing and Robin Feldman called "The Giants Among Us" attempts to map out Intellectual Ventures' thousands of shell companies to great difficulty and incomplete success. This doesn't make any sense. The patent system relies on what's known as the "patent bargain," an exchange of exclusive rights for an invention in exchange for public disclosure about the invention. This stems straight from the Constitution, which gives the government the ability to "promote the progress of science and useful arts" while also securing rights for inventors. Navigating the current patent system in a way that actually promotes progress requires an awareness of the competitive landscape. But right now, knowing who owns what is far from easy.

All of this patent subterfuge—coupled with a system that promotes such schemes—has created a state of play where litigation is favored over competition.

The Patent Office's record-keeping problem is a known one, and there have been multiple solutions put forth to fix it. EFF's Defend Innovation campaign, which includes seven proposals that provide crucial fixes to the patent system, features a separate fix that includes the disclosure of not only patent ownership records but also licenses (barring relevant trade secrets). That being said, Rep. Deutch's End Anonymous Patents bill provides a necessary step towards transparency in the patent system.

With Rep. Deutch's bill, Sen. Schumer's Patent Quality Improvement Act, and Reps. DeFazio's and Chaffetz' SHIELD Act, there are now three proposed fixes to the patent troll problem. While we should support these patches with full force, let's take advantage of this renewed interest in overhauling the patent system to tackle the larger issues that have led to the problems we're seeing today.

Files:  deutch-end-patent-anonymity.pdfRelated Issues: PatentsPatent Trolls
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Today, we’re happy to announce that we will be accepting Bitcoin donations through our website. You can use them to make one-time donations, set up monthly donations or get an EFF membership (which includes awesome membership swag like EFF hats and digital freedom t-shirts).

While we are accepting Bitcoin donations, EFF is not endorsing Bitcoin.  EFF does not typically endorse products or services, and we certainly do not endorse any of the electronic payment methods that we currently accept (credit cards, PayPal, and now BitPay).

With respect to Bitcoin as a technology, there is clearly a lot more to be said. Currently it seems that Bitcoin, while innovative, has a number of limitations and weaknesses in its design, and might yet turn out to be just the first draft for future crypto-currencies.1 However, as an organization that supports cryptographic experimentation, we believe the best answer to Bitcoin's potential shortcomings is for others to come along and offer superior alternatives.

Along the way, we want to give our supporters as much flexibility as possible in making donations to EFF. You can click to make a donation to EFF by credit card, PayPal, Bitcoin, and, in the future, hopefully many other payment systems as well.

How We Got Here

Two years ago, EFF decided to stop taking Bitcoins for a number of reasons and returned the coins to the community via the Bitcoin faucet and promised to investigate further. Since then, we’ve been watching the public debate around Bitcoins, seeing the ecosystem develop around them, and conducting our own research on the possible legal issues.

Here were some of the factors we considered when making this decision:

Censorship by payment intermediaries is an ongoing problem for free speech online – so it makes sense to start diversifying the available options. EFF has long tried to identify and fortify the weakest links for speech online, and payment processors remain a significant problem.  We’ve seen payment processors with policies that ban speech that would be strongly protected under the First Amendment, that arbitrarily enforce those policies, and that offer no process at all for reinstating closed accounts, much less the sort of due process that the government would have to engage in to shut down speech. We’ve seen payment providers cave to pressure from government officials to shut down accounts. We’ve seen payment intermediaries shut off accounts to censor First Amendment-protected online content. And we’ve seen legislators propose misguided censorship legislation that would have put payment providers in the position of actively shutting down the accounts of individuals accused of copyright infringement. Because of this, we’re generally interested in ways of diversifying the market around payment options, so that a handful of big market players won’t be able to exercise such a stranglehold over online speech.

You can now give Bitcoins to EFF in the same way that you can give stock.  EFF has long had a policy that converts gifts of stock and items like cars into cash immediately on receipt. We try to convert your donations into action as soon as possible. Another factor in our decision to take Bitcoins is availability of services like BitPay, which accepts donations for EFF and automatically converts those into dollars which we receive and can immediately put to use. It is akin to the way Stripe processes credit card donations on eff.org, but also akin to the way you can donate a car to EFF.

This relieves EFF of the burden of managing the Bitcoin account. It also ensures that we’re never hanging on to a large quantity of Bitcoins, which was a problem two years ago—we had enough sitting in the account that we likely could have affected the market had we dumped it all at once. The BitPay service also means that our policy and processing are consistent across different types of donations. Most importantly, it allows us to focus on what we do—protect rights online—and ensures that we don’t have a financial stake in the outcome of a digital rights issue, such as whether a particular company does well or the value of Bitcoins grows or takes a dip.

Our research and FinCEN’s guidance removed a key risk to EFF. Both our internal research and the recent report by FinCEN2 have confirmed that, as a user of Bitcoin or any virtual currency, EFF itself is likely not subject to regulation. While some have raised concerns about the FinCEN ruling, and noted that it’s not binding, it did confirm our own analysis of risk to us as a user and reduced our concerns that by accepting Bitcoins EFF risked moving away from its role as a defender of innovators and into the role as a possible defendant.

Our members keep politely asking for it. Ultimately, EFF needs to make independent decisions to do what is technically and legally best for supporting liberty online.  Sometimes that means taking on positions or defending views that are unpopular—including those that are unpopular with our members. But we're pleased to be able to provide our members with something they have asked for—repeatedly and passionately—when it’s possible for us.

We already accept lots of unusual forms of donations. Right now, you can donate a car to EFF (PDF), or airline miles, or proceeds from your book, or even stock from your company. We’re happy today to add one more way for digital rights enthusiasts to support our work.

Click here to donate now.

EFF at Bitcoin 2013 Also, if you're planning on attending the Bitcoin 2013 conference in San Jose this weekened, please say hello. We (Rainey and Seth) will both be at the conference, and Rainey will be speaking about financial censorship on a panel on Saturday. Check the schedule on the website for details.

• 1. A full discussion of the strengths and weaknesses of the Bitcoin design will have to wait for a future blog post, but we note here that Bitcoin is very often not anonymous in the ways users might believe or expect, because (for instance) the network doesn't actively conceal the IP addresses from which transactions were initiated; its expenditure of large amounts of computational resources may turn out to be unnecessary; and its monetary policy is controversial and arguably designed to incentivize adoption and holding of the currency, rather than maximizing valuable economic transactions. The fact that Bitcoin is subject to criticism should not be surprising; it would have been much more surprising if the first widely used cryptographic currency had been perfect, and very active research continues on ways of improving Bitcoin or creating new crypto-currencies with other properties.
• 2. Note that we are not endorsing FinCEN's guidance as a matter of law or policy.

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To steal a line from Rep. Virginia Foxx, the gentlewoman from North Carolina: This is our shocked face.

Far be it for us to complain about Congress making noise about press freedom and improper surveillance, but c'mon—it's about darned time someone other than Sen. Ron Wyden and Rep. Zoe Lofgren stood up for civil liberties. It's just too bad that something like the Department of Justice's subpoenas for Associated Press phone records has to happen first before our elected leaders take notice.

But, better late than never. Shock is reverberating through the halls of Congress, particularly in yesterday's Justice Department oversight hearing in the House Judicary Committee, where Attorney General Eric Holder denied knowledge of (and culpabality in) the AP leak investigation. Some of the outcry is policital, for sure, with Republicans jumping on the opportunity to pair AP subpoena revelations with news of the IRS targeting conservative groups and new information related to the Benghazi attack. We'll stow our cynicism for now and embrace the outrage where we find it, especially if it results in the passage of the newly introduced Telephone Records Protection Act.

So how much outrage is there? We used the Sunlight Foundation's handy tool, Scout, to search Congressional speeches to measure the snowballing fury at the DOJ among members of Congress. Here are some of the highlights.

Rep. Ted Poe (R-TX) in a floor speech titled "State Secrets vs. Freedom of the Press":

Mr. Speaker, when I went to the Soviet Union in the 1980s, the Communist leaders told me that they believed in and had a free press and they also had free speech. However, I also learned that Soviet law prohibited these freedoms when they jeopardized state secrets--or national security, as we call it in America. The state-secret provision was so broad the Soviet press and speech were gagged and shackled. They certainly were not free.

Now we learn that our Department of Justice improperly seized without notice phone records of over 100 Associated Press journalists--all in the name of national security concerns.

To me, this is a clear violation of the spirit and letter of the First Amendment. These actions border on the Soviet method of legalizing these freedoms but never allowing them. So it's time to revisit U.S. law and require in all cases judicial review where these types of records are seized.

We cannot allow our government to arbitrarily abolish the First Amendment in the name of ``state secrets.''

And that's just the way it is.

Sen. Marco Rubio (R-FL):

Then the revelation on Monday that the Justice Department of the United States--think about that, the chief law enforcement agency of the country--had issued this blanket search of the phone records of I think the Nation's largest reporting group, the Associated Press. I understand if they were going after a leak that endangered America and security; that is one thing. We can have a debate about that. But they went much further than that. It was a blanket request of all of these phone calls, including the switchboard. Pretty outrageous.

...For example, you think about some of our most precious freedoms--the First Amendment right to free speech. Think about if you are a reporter at the Associated Press. Think about if you are a source--unrelated to national security--to the Associated Press. Think about if you are a whistleblower, someone who is blowing the whistle on government activity because you work in the government and you think what the government is doing is wrong. Think about that for a second.

Now, all of a sudden, what are you afraid of? I am not calling that reporter back because their phone might be tapped, my number might show up on their records, because the Justice Department has just shown they are willing to do that. Think about the chilling effect that sends up and down the government.

If there is wrongdoing somewhere in the government right now, people are probably afraid to blow the whistle because they are afraid they are being surveilled by the Justice Department or that the person they are talking to is being surveilled. That is how outrageous this is.

Rep. Virginia Foxx (R-NC):

The administration's apologists are in a panic. They claim the President is not responsible for any of this wrongdoing. The President, who made a career touting government as the solution to most every problem, now solicits our understanding. It seems the leviathan is rather unwieldy and difficult to manage.

This is my shocked face.

Rep. Jeff Fortenberry (R-NE):

[W]e are learning that the Department of Justice seized phone records of Associated Press reporters, including records of their personal phone lines. Now, the ability to wiretap and probe needs to be in place in narrow circumstances, but the wide-ranging nature of what happened raises a number of questions, questions that beg us to ask: How do we protect the freedom of the press?

Rep. Jim Himes (D-CT) in a floor speech titled "Freedom of the Press":

Mr. Speaker, it is the fashion amongst many of us to blame the press for our troubles, and that's, of course, because the press reports our troubles. At their best, the media keeps us honest, it keeps us in our constitutional lanes, and it reports our failures. It is essential for democracy. There is a reason why freedom of the press is not the Second or Fourth or 10th Amendment. It's the First Amendment.So, Mr. Speaker, I am profoundly concerned over the Department of Justice's overbroad and chilling behavior with respect to the Associated Press. Seeking records for 20 phone lines, giving the AP no notice, refusing at this point to discuss their behavior feels to me like overreach.Mr. Speaker, it's time for the Department of Justice to stand back. You can imagine that there is somebody out there today who has a failure to report who is chilled and says, I will not do that because of the approach that the Department of Justice has taken.Mr. Speaker, I am proud to serve in the very core of democracy, but this Chamber rests on foundations, and a key part of that foundation is a free and competent press.

Rep. Morgan Griffith (R-VA):

Well, we once had a political party known as the Know-Nothings. We now have a President who wants us to believe that he knows nothing...He wants us to believe that he knows nothing about the Department of Justice subpoenaing 2 months of the Associated Press' phone records. 

What has happened to the days in America when Democratic President Harry Truman proudly placed a placard on his desk that said: "The buck stops here''? Perhaps, sadly, we have returned to the days where the question to the President of the United States ought to be: What did you know and when did you know it?

Sen. Deb Fischer (R-NE):

Just yesterday we learned of another breach of public trust and another potential violation of our First Amendment freedom--the freedom of the press. Press reports indicate the Department of Justice secretly obtained extensive telephone records of reporters and editors for the Associated Press in what the head of the news organization called a ``massive and unprecedented intrusion'' into how news organizations gather the news. According to the Associated Press's legal counsel, the records obtained included those from reporters working out of the House of Representatives press gallery.

While it is unclear at this point how many reporters were targeted and why, the effect of this data gathering is clear: intimidation of the press and suppression of free speech.

This is unacceptable. A free and unfettered press is vital to any democracy. Moreover, the scope of this information gathering is simply beyond the pale--and likely beyond precedent.

Update: Rep. Hank Johnson asked us to include some of the remarks he prepared for the judiciary hearing. 

Rep. Hank Johnson (D-GA):

I strongly believe that Congress must protect the free flow of information and ideas under the First Amendment. This is why I voted for the Free Flow of information Act, a federal shield law that would have required judicial oversight over media subpoenas.  This vital legislation, which was blocked by Republicans in the Senate and opposed by some of the same Members of the Committee who are shocked by the AP investigation, would likely have avoided much of the alarm caused by this investigation.

Protecting the freedom of the press also requires that we strike a careful balance in preventing national security leaks where there is a very real threat to American lives.  As a member of the Armed Services Committee, I am acutely aware of the threats that face our Nation and the need for confidentiality when confronting these threats.

The public outcry in response to the AP investigation also illustrates the public’s alarm with the lack of privacy protections for our everyday communications.  Every day, the phone records of countless Americans are subject to criminal investigations without a warrant based on probable cause.  Investigators need only a subpoena to obtain the numbers you call and receive, as well as emails and text messages that are more than 180 days old.  Warrantless surveillance brings us ever-closer to the surveillance state described by George Orwell where “every sound you made was overheard,—and, except in darkness, every moment scrutinized.”

This issue demonstrates the urgent necessity to modernize laws that have been outpaced by technology and the ease of collecting massive amounts information about Americans.  We need to modernize the Electronic Communications Privacy Act of 1986 by requiring a warrant for surveillance involving communications, phone records, and movements.  We need to update the Espionage Act of 1917 to limit prosecutions to cases involving real harms to our national security.

Related Issues: Free Speech
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Today EFF joins organizations from the around the world representing a diversity of interests in launching a new coalition to ask for A Fair Deal on intellectual property (IP) in the Trans-Pacific Partnership Agreement (TPP). The coalition has launched a website at www.OurFairDeal.org calling for TPP negotiators to “reject copyright proposals that restrict the open Internet, access to knowledge, economic opportunity and our fundamental rights.” The TPP meetings are taking place in Lima, Peru this week until May 25th, and EFF has been on the ground working with groups to fight those provisions and demand a seat at the table at these secretive negotiations.

The TPP is a trade agreement being negotiated by Australia, Brunei, Canada, Chile, Japan, Peru, Malaysia, Mexico, New Zealand, Singapore, Vietnam, and the United States. The changes to copyright required by the TPP would reduce access to information and restrict the ability to innovate, both on and offline.

Susan Chalmers from InternetNZ announced the coalition yesterday:

“A fair deal on copyright in the TPP takes into account the interests of internet users, libraries and archives, those with disabilities, educators and business innovators as well as creators. We’re all part of the Internet economy. The Fair Deal coalition is promoting fair copyright standards for the TPP that reflect the needs of the broadest cross-section of society.”

Negotiators are hoping the meetings will “accelerate” the closed-door process. New reports indicate copyright provisions are a “challenging” issue for those behind the Trans-Pacific Partnership agreement.

Between them, members of the Fair Deal coalition represent the interests of Internet users, schools, universities, artists, libraries and archives, the visually impaired, consumers, information technology firms, Internet businesses, and those who believe in the power of open source software and the open Internet as a driving force for innovation, development and socially responsible economic growth. Coalition members include industry groups, digital rights advocates, academics and human rights organizations.

The coalition hopes that TPP negotiators will consider adopting a new approach that:

• Promotes access to knowledge, innovation, and weightless economies,   
• Respects fundamental rights like due process, privacy, and free speech, and
• Recognizes the realities and full opportunities of the Internet.

Steve Anderson, Executive Director of OpenMedia.org says:

“Unrestricted access to the open internet is fundamental to participation in 21st century society. Trade agreements must not require termination of Internet access for infringement of copyright or encourage ISPs to police Internet use.”

Executive Officer for the Australian Digital Alliance, Ellen Broad, noted the need to make sure any copyright standards agreed to in the TPP could keep pace with digital change:

“Countries around the world are currently looking at their own copyright regimes and asking, ‘are these working in the digital age?’ And the answer has been no. The internet has changed so much about the way we create, disseminate and access content: it’s essential the TPP not lock in 20th century copyright standards, but focus on a healthy internet future - for both creators and consumers, distributors and innovators.”

“Copyright laws across all of the TPP countries are already strong enough” says Jeremy Malcolm, Senior Policy Officer of Consumers International. “Indeed in many of those countries, inflexible copyright rules have been identified as a straightjacket on creativity and innovation. Plans to extend copyright even further through the TPP are exactly the opposite approach to what consumers need.”

Claudio Ruiz, executive director of Chilean ONG Derechos Digitales, states “TPP is very bad news for the rights of citizen and consumers. Increased protection standards regarding copyright cause serious detriment to the access to knowledge and culture. A 'Fair Deal' should look better access for the public and not more onerous conditions to use new technologies around access to knowledge.”

About the Fair Deal Coalition

Starting at first in New Zealand and then connecting with organizations and people internationally, a group of individuals from the fields of Internet policy, art, information technology and law got together to discuss a TPP campaign with a copyright focus. What resulted was the idea of a fair deal, one that opens up trade opportunities for TPP member states but doesn’t force copyright and other IP-related changes on us that could damage our future.

Founding members of the Fair Deal coalition include:

Affinity Bridge, Australian Digital Alliance, Australian Library  & Information Association, Association for Progressive Communications (APC), Internet NZ, BCFIPA, The Canadian Internet Policy and Public Interest Clinic (CIPPIC), Consumers International, Council of Canadians, Creative Freedom, Demand Progress, Derechos Digitales, Electronic Frontiers Australia, Electronic Frontiers Foundation (EFF), Fight for the Future, Gen Why Media, Hiperderecho, Library & Information Society of New Zealand, NZRise, NZOSS, OpenMedia.org, Public Citizen, Public Knowledge, Royal New Zealand Foundation of the Blind, Scoop, Tech Liberty NZ, TechDirt, Tuanz, TradeMe.

 

 

Related Issues: Intellectual PropertyInternationalTrans Pacific Partnership Agreement
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An expanded edition of EFFector, EFF's almost-weekly newsletter.

I’m Danny O’Brien, EFF’s new International Director. Five years ago, I worked on the EFF team that identified the threat of ACTA, a secret global intellectual property treaty we discovered was being used to smuggle Internet control provisions into the laws of over thirty countries. Together with an amazing worldwide coalition of activists from Europe to South Korea, we beat back that threat.

I’m writing to you today to explain what's happening with the new ACTA: the Trans-Pacific Partnership (TPP). TPP has been around since the Bush administration, but recently the pace has picked up, with governments saying they want to get the agreement signed and done by the end of this year.

Global activism can stop TPP, but preventing the endless merry-go-round of new IP treaties means tackling the problem at its roots. I'd like to describe what we're doing on both those fronts, and how you can help. But first, I'd like you to meet this gentleman:

Meet Michael Froman: The Most Important Man in Global Copyright

This is Michael Froman, and barring a scandal, he's about to be the new United States Trade Representative (USTR). The U.S. Trade Representative negotiates international trade agreements on behalf of the United States. Congress has one opportunity to ask him questions at his nomination hearing.

They should take full advantage of it. Right now, the only reason the public knows anything about what the USTR is doing on IP is that whistleblowers participating in the treaty process have leaked what they can. (Congressman Darrell Issa re-published the leaks on his own office site, over the USTR's objections).

Those documents show that the American proposals for the Trans-Pacific Partnership would export the worst of modern U.S. copyright law, and thwart other countries' ability to create laws that best meet their domestic needs:

• The proposed rules could prevent individuals from circumventing DRM—the technical barriers put in place to make copying, accessing, and sharing copyrighted content more difficult. This would hinder technical fixes necessary to make content accessible for the blind or to unlock your phone.
• It contains provisions that would, by default, regulate "temporary" reproductions of copyrighted files, thereby restricting all kinds of intrinsic functions of your computer.
• It increases copyright terms well beyond international standards, adding some 20 years to copyright terms worldwide, potentially robbing the public domain of decades of cultural works.
• In many countries, an allegation of infringement is not enough to get material taken offline. TPP’s proposals, by contrast, put in place a system (similar to the one we have in the U.S.) that encourages ISPs to take down content based on nothing but a notice. We’ve seen how that can be abused here—do we really want to export it wholesale?

Treaties like this also help to fossilize existing U.S. law and force other countries to sign up for American missteps. Momentum in D.C. for rolling back copyright terms and DRM law is growing, but opponents of those changes have argued that lawmakers can't undo their own mistakes—because, they say, we've already signed onto IP trade agreements that we supposedly can't undo.

What We're Doing

We're asking U.S. senators to use the nomination process to grill Froman about the USTR’s IP plans, and we’re petitioning him directly to adopt meaningful transparency and stop using trade agreements to push aggressive IP programs worldwide.

Could Froman really reform U.S. trade agreement strategies? Yes, but only if he and the Administration face coordinated pressure from American politicians and citizens plus resistance from other countries pushing back against American demands.

Which brings us to why EFF's Maira Sutton and Katitza Rodriguez are remotely working right now—from Lima, the capital of Peru.

Yara TPP!

Starting today, the U.S. Trade Rep and negotiators from 10 other countries are meeting in Lima to take part in the latest round of negotiations for TPP.

We beat them there. Kat is our International Rights Director. She's also Peruvian. She's spent the last month in Lima working with fellow Peruvian technologists, makers and artists, highlighting how TPP will affect them. She has been working with the other groups fighting TPP on the ground, including Hiperderecho, Peru's own digital rights activism group.

The result? An explosion in information and public debate in Peru about TPP. Kat has written Spanish language editorials, met with Peruvian politicians, journalists, students, free software advocates and filmmakers. Lima's hackerspace, Escuelab, hosted a two-day hackathon that produced memes and microsites that explain TPP to fellow Peruvians and the world. There's even the inevitable Peruvian TPP Downfall video. Other hackerspaces took part around the world, producing sites with titles like http://whytheheckshouldicareaboutthetpp.com/.

The slogan and hashtag of Peruvians' digital rights activists is "#yaratpp", a slang term which means (roughly) "Warning! TPP!". Peruvians have joined the fight at Nonegociable.pe, asking their President to set clear non-negotiable lines to ensure that Peruvians' fundamental freedoms are respected in the TPP negotiations.

Help Us Stop the TPP – and the IP Treaty Tarpit

The TPP negotiators are on deadline in Lima. They've already said TPP's IP chapter is one of the "more challenging issues that remain." It's more challenging still when the host country is demanding to know why this trade agreement would undermine local entrepreneurs and artists. Meanwhile, politicians back in the U.S. are demanding a closer look at their head negotiator's IP stance.

Like battling ACTA, stopping the TPP and its descendants is going to be a long-term fight that will take a worldwide effort. But you can help us today by taking advantage of the Froman nomination to speak truth to power.

Sign our petition demanding that Froman usher in a new age of transparency as the next US Trade Representative:

Stop USTR Secrecy

If you’re in the U.S., please also send a message to your representative to demand an end to these secret backdoor negotiations:

Don’t Let Them Trade Away Our Internet Freedoms

And if you're in Peru, join Hiperderecho and tell the Peruvian president that our rights over the Internet are non-negotiable:

Pidamos juntos límites no negociables

Stay tuned to the Deeplinks blog for more updates on the fight for sensible global copyright policy.

Related Issues: InternationalTrans Pacific Partnership Agreement
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Last week’s big decision in CLS Bank v. Alice saw a divided Federal Circuit tackle the patentability of software. Five judges voted to strike down patent claims to a “computer system” programmed to implement a financial transaction. But five judges would have upheld the claims. With the case seemingly headed to the Supreme Court, what’s at stake?

The key question in CLS Bank was whether an abstract idea (such as using an escrow agent as part of a financial transaction) can be patented if, instead of claiming the idea itself, the applicant claims a computer system that implements the idea. (Of course, the law precludes patent protection for laws of nature, natural phenomena, and abstract ideas.) In a thoughtful opinion by Judge Lourie, five members of the Federal Circuit held that merely “appending generic computer functionality” to an otherwise abstract concept is not enough to make it non-abstract, or somehow patentable.

The other members of the court reacted to this suggestion with alarm. Warning of a “free fall of the patent system,” Judge Moore wrote:

Let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.

Perhaps more significantly, Judge Moore claimed that this “would decimate the electronics and software industries.” These are dramatic claims. But will the sky fall if we get rid of abstract software patents?

It is important to realize that software patents and the software industry are not the same thing. As Judge Moore’s own scholarship shows, patent issuance is “a poor measure of innovation value.” And there are straightforward economic reasons why patents and software are a bad fit. Far from being an incentive, software patents tend to operate as a barrier to entry and a tax on innovation. As Bill Gates wrote back in 1991: “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

Recent events in New Zealand confirm that the software industry does not need patents. With the strong backing of its IT community, the NZ government is clarifying its law to ensure that software is not patentable. It will add the following language to its patent act:

(1) A computer program is not an invention and not a manner of manufacture for the purposes of this Act.(2) Subsection (1) prevents anything from being an invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a patent or an application relates to a computer program as such.(3) A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.

The head of NZ’s largest software company welcomed the move, explaining that “software patents are counter-productive, often used obstructively and get in the way of innovation."

Almost 20 years ago, in a case called In Re Alappat, the Federal Circuit held that an algorithm implemented in a general-purpose computer is patentable. That case opened the floodgates to software patents, which, in turn, have led to the rise of the patent troll. Software patents by their nature are vague and often broad, giving trolls a powerful tool to use to threaten lawsuits and demand licensing fees. More often than not, these trolls neither make nor sell anything, but are quite successful at shaking down creators and creating a chilling effect on innovation. There’s great momentum lately to fix the troll problem, but, to be sure, the root of that problem is software patents themselves.

Ultimately, we hope the United States Supreme Court will decide that Section 101 of the Patent Act does not allow for abstract ideas to become patentable simply by implementing these ideas in a general purpose computer or on the Internet. There is no reason to fear that such a ruling would decimate the software industry. To the contrary, it would more likely remove a barrier to innovation.

Related Issues: Patents
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Today, trade negotiators from 11 countries meet again to secretively draft the terms of the Trans-Pacific Partnership agreement (TPP). The TPP is a sprawling multinational trade agreement that includes expansive and unfair copyright provisions. If signed, the TPP will entrench these digital enforcement measures as a global standard, leading to harsh regulations that would be disastrous for Internet users worldwide.

EFF is on the ground in Lima, Peru for the 17th round of negotiations. As with all the previous TPP talks, the public is completely excluded from the process. We're here to educate and call attention to this secretive agreement until they make these negotiations transparent and democratic. As long as they continue to shut out digital rights groups, it will be impossible for them design pragmatic innovation policy that addresses our users' concerns.

As during the  ACTA negotiations, Hollywood and other Big Content industries have a stronghold over international policymakers. As a result, U.S. trade delegates are pushing forth provisions that, if enforced, would have huge chilling effects on everyone including innovators, hackers, makers, students, researchers, and people with reading and learning disabilities. These provisions are designed to limit how anyone can share and interact with digital content so they will impact everyone.

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What You Can Do Take Action

Wherever you are, sign this letter to demand that USTR nominee Michael Froman usher in a new age of transparency as the next US Trade Representative.

If you’re in the U.S., take our action to send a message to your representative to demand an end to these secret backroom negotiations.

If you're in Peru, join Hiperderecho and tell the Peruvian president that our rights on the Internet are non-negotiable.

Spread the Word

This week, we launched a new tool to help you spread the word. It’s called “Why the Heck Should I Care About the TPP?” and it lays out some of the worst consequences that would result if this agreement were to pass.

Share our infographic about the TPP! We have versions in both English and Spanish.

 

 

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This article has been written by Miguel Morachimo, Executive Director, Hiperderecho and Katitza Rodriguez, EFF International Rights Director

Hoy día nuestro gobierno se reunirá en Lima con los representantes de Estados Unidos y otros diez estados para discutir el Acuerdo de Asociación Transpacífico (TPP). Este es un nuevo acuerdo comercial en negociación entre los países del Asía Pacífico muy poco discutido en nuestro país. Sin embargo, en países como Japón, Chile o Nueva Zelanda es objeto de intenso debate porque su texto no sólo habla de libre comercio sino también regula temas tan delicados como acceso a medicamentos, libertad de expresión e innovación en entornos digitales.

El texto del acuerdo es secreto aunque hace dos años se filtró el capítulo de Propiedad Intelectual propuesto por Estados Unidos, que contenía disposiciones alarmantes para los derechos fundamentales, la innovación tecnológica y la Internet. Para muchos académicos y usuarios de Internet, esta propuesta remite al polémico proyecto de ley SOPA o al tratado ACTA, ambos rechazados mayoritariamente por afectar libertades y derechos en línea. Con el TPP, Estados Unidos regresa sobre la misma estrategia y plantea exportar algunos de los peores aspectos de su ley de derechos de autor.

La respuesta del gobierno peruano hasta ahora ha sido asegurar que el TPP no es distinto del Tratado de Libre Comercio (TLC) suscrito con Estados Unidos en el 2007. Sin embargo, nada respalda esta declaración ya que no conocemos el texto real del tratado y el capítulo de propiedad intelectual filtrado hace dos años, aunque similar en estructura, va más allá que nuestro TLC con Estados Unidos en varios aspectos. Peor aún, todo lo que conocemos tiene dos años de antigüedad y fue solo la propuesta inicial de Estados Unidos. Nos preocupa el espacio que pueden tener los países dominantes en la negociación luego de que muchos países como Perú han anticipado su entusiasmo por firmar el TPP a toda costa.

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La propuesta de Estados Unidos amplía todavía más los plazos y supuestos de protección, reduce excepciones que favorecen al público en general y plantea endurecer aún más varias de las ya estrictas medidas de aplicación de los derechos de autor del TLC. Así, por ejemplo, obliga que los intermediarios en Internet (como las empresas prestadoras de servicio o las propias páginas web) colaboren con los titulares de contenidos protegidos por derechos de autor retirando, bloqueando e identificando a los usuarios que comentan infracciones en sus redes. La negativa a formar parte de este sistema de privado de justicia puede conllevar responsabilidad por parte de las empresas intermediarias. Este es un tema que ya estaba en nuestro TLC, que todavía no hemos implementado localmente, y que Estados Unidos podría intentar llevar más allá, en vista de sus recientes proyectos legislativos sobre el tema (ej. SOPA, PIPA, ACTA). Un sistema privado de justicia no sólo ponen en riesgo la libertad de expresión y la privacidad de los usuarios de Internet sino que también significan una carga excesiva para la mayoría de empresas intermediarias en Internet, lo que aumenta los costos para cualquier emprendedor empresa local nueva o start up que desea hacer negocios por Internet.

De la misma manera, se establece una prohibición amplia de romper las cerraduras digitales o medidas de protección tecnológica que se colocan en los soportes o archivos que contienen obras (e.g. software, libros y videos). Esta disposición crea un nuevo derecho de acceso a una obra digital, una protección que está por encima de la protección del derechos de autor. La norma responsabiliza a quien rompa un candado digital que controla el acceso a las obras protegidas incluso si aquel acceso no está asociado a una infracción a los derechos de autor (e.g. copiar y pegar un extracto de un libro electrónico o ripear un DVD de música y pasarlo a tu iPod), salvo un número sumamente limitado de excepciones. Una aplicación estricta de esta norma colocaría a discapacitados visuales, investigadores, usuarios de software libre y desarrolladores informáticos en la ilegalidad. Si bien estas disposiciones tienen el propósito legítimo de proteger a los titulares de derechos de autor contra el uso no autorizado de sus obras digitales, disposiciones similares en los Estados Unidos han demostrado ser demasiado amplias, y en los últimos 15 años se han utilizado para muchos fines diferentes a los previstos por el Congreso de EE.UU. que no tienen nada que ver con el uso de obras no autorizadas por los derechos de autor.

Pero los acuerdos internacionales de derechos de autor como el TPP no solo afectan a usuarios y empresas locales de Internet. También significan un obstáculo para las reformas tan necesarias a la ley de derecho de autor en Perú, donde no existen suficiente excepciones para el uso legítimo de obras en el entorno digital ni siquiera para que las bibliotecas públicas o privadas presten películas. Sin embargo, sí tenemos una excepción escrita que permite que las tiendas que venden televisores puedan exhibir series o películas al público.  Asumir obligaciones internacionales también asfixian nuestra libertad para crear y mejorar nuestras propias leyes haciéndose más difícil cambiar nuestras leyes locales al atarse a un estándar legal que no elegimos democráticamente y que no se adapta a nuestras necesidades locales. Incluso si esas obligaciones internacionales no se trasladan a las normas locales inmediatamente, estarán a disposición de grupos de presión y lobbystas para que obliguen a nuestro Congreso y autoridades a adoptarlas o detener reformas positivas y modernas bajo pena de sanciones internacionales.

No nos oponemos al libre comercio ni a la apertura de mercados. Nos oponemos a que los tratados de libre comercio regulen libremente nuestros derechos y libertades esenciales de espaldas al público en general. Creemos que medidas de ese tipo pueden tener un efecto negativo en la inversión local, nuestra economía y nuestros derechos fundamentales. Si tú también crees que el Estado debe de fijar límites no negociables en el TPP, te pedimos que te unas a la petición en línea propuesta por un grupo de organizaciones de la sociedad civil ingresando a http://www.nonegociable.pe/. Con el TPP, Todos Podemos Perder.

Más información

TPP: Todos Podemos Perder por Katitza Rodríguez y Miguel Morachimo (resumen ejecutivo para la prensa)

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EFF Urges Protection of Defendants in Case Linked to Notorious Prenda Law Firm

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged a federal appeals court today to stop a copyright troll's shakedown scheme in a case linked to the notorious Prenda Law firm.

The plaintiff in this case, AF Holdings, is seeking the identity of more than 1,000 Internet users that it claims are linked to the illegal downloading of a copyrighted pornographic film. Over the protest of the Internet service providers who received subpoenas for those identities, a lower court approved the disclosure of the names. The ISPs appealed, and today EFF filed a brief in support of that appeal. EFF is asking the U.S. District Court of Appeals for the District of Columbia Circuit to help keep the legal process fair and balanced by requiring AF Holdings to simply show that it has a good faith basis for going after these defendants.

The case is one of hundreds being pursued around the country that follow the same pattern: a copyright troll looks for IP addresses that allegedly downloaded adult films via BitTorrent, files a lawsuit against thousands of Does based on those IP addresses, seeks to subpoena the ISP for the contact information of the account holder associated with that IP address, and threatens to name the alleged infringer in a copyright lawsuit, right next to the embarrassing title of a pornographic film. The Doe is then offered a chance to settle before the lawsuit is filed, usually for a few thousand dollars. The key to the business model is flouting legal procedure by suing thousands of unrelated people—located all over the country—in a single lawsuit. For the price of a $400 filing fee and some stamps, the troll can extract thousands of dollars in settlements.

"Once AF Holdings gets the names it's looking for, then it already has what it needs to put its shakedown scheme in motion," said EFF Staff Attorney Mitch Stoltz. "For the defendants, it will come down to risking being named in a lawsuit over a pornographic movie, or settling for less than the cost of hiring an attorney. As a matter of law and basic fairness, AF Holdings needs to prove that its case is on solid ground before putting more than 1,000 of Internet users in that kind of bind."

AF Holdings is one of a number of holding companies linked to Prenda Law, a firm that is facing serious questions about its use of stolen identities and fictitious signatures on key legal documents, and making other false statements to the courts. Earlier this month, a federal judge issued sanctions of more than $81,000 against Prenda and its attorneys and referred the matter to federal prosecutors.

"We're glad that judges are catching on to this abuse of the court system," said EFF Intellectual Property Director Corynne McSherry. "But while the legal system tries to find answers about Prenda Law, AF Holdings, and other copyright trolls, it's important to remember that there are real people still being victimized by these unfair lawsuits in the meantime. We hope the appellate court will recognize that copyright owners have to follow the same rules as everyone else."

Also joining EFF's amicus brief are the American Civil Liberties Union (ACLU), the ACLU of the Nation's Capital, Public Citizen, and Public Knowledge.

For the full amicus brief:
https://www.eff.org/node/74213

Contacts:

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

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The public lost another battle in the U.S. v. Aaron Swartz case, this one over transparency. On May 13, 2013, the U.S. District Court judge handling the prosecution sided with the government, the Massachusetts Institute of Technology and JSTOR and refused to make public any information in the case that any of these three entities wished to keep under seal. The ruling effectively grants the Department of Justice, MIT and JSTOR a veto over what the public gets to know about the investigation. 

The decision stems from the government's controversial prosecution of Aaron Swartz, the brilliant activist and Internet pioneer, who died in January. The government brought a myriad of charges against Swartz, most notably under the draconian Computer Fraud and Abuse Act (CFAA). After his tragic death, there were widespread calls for an investigation into prosecutorial misconduct and reform of the CFAA, and in response, Swartz's lawyers had asked the court to unseal the vast majority of evidence in the case since all charges have been dismissed for months.

The specific information at issue is identifying information for JSTOR, MIT and certain law enforcement personnel, along with any information "identifying and sentitive network information." As Swartz's attorneys have noted, the proposed redactions includes job titles and other information needed to understand who was talking to whom in the voluminous email traffic, and it's impossible to follow what happened in the course of the prosecution without it. This information is vital in understanding how involved MIT was in the prosecution and at what level in the institution, when and how JSTOR was involved and whether the Justice Department's repeated public assertions that everything in the prosecution proceeded normally were accurate.

The Court gave short shrift to the great public interest here, dismissing it as significantly less important than the vague and largely unspecified "incidents of harassment and retaliation" claimed by the government, MIT and JSTOR. The judge used these alleged incidents as justification for removing nearly all identifying information of those involved—regardless of how likely they were to be actual targets for retaliation. It is difficult to believe that this case posed a bigger threat of retaliation than other federal cases involving violent offenses or organized crime, such that broad witness secrecy is required even after the case has ended.

Similarly, it seems unlikely that in a prosecution say, for a burglary, the victim would be able to prevent public access to any facts about how the incident occurred (was a crowbar used? a fake key?). Yet, here the court allowed MIT and JSTOR to prevent any information from being released about the broad term "sensitive network information." 

The big losers in this case are the countless number of Americans of who have raised legitimate and serious concerns about the prosecution of Aaron Swartz and who have urged Congress to reform the CFAA.  With the facts and identities locked away, and only selectively revealed to Congress by the three entities most interested in defending the prosecution, how can those of us pushing for reform lawmakers determine what changes are needed? How can we respond to the government's repeated claims that nothing went awry here?  The result of this decision excuses accountability by denying the public access to the facts it needs to engage in the democratic process and fix the law.

The Court did note that if Congress wishes to know more, it can ask JSTOR, MIT or the government "on a case by case basis." We hope that members of Congress, who just received a secret briefing from the DOJ, will take the court up on this offer and, to the extent they are thwarted, go back to the court for further relief.

Files:  Swartz Motion to Modify Protective Order Swartz Order Modifying Protective Order in PartRelated Issues: Computer Fraud And Abuse Act ReformTransparency
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