Keith Henson Appeal: Time to Undo an Injustice

The well-known Scientology protester Keith Henson has filed an appeal to the Appellate Division of the Riverside County Superior Court of his criminal conviction in 2001 of misdemeanor "interfering with a religion" for picketing in front of a Scientology "base" in Hemet, CA. The ruling was roundly criticized as inconsistent with Henson's First Amendment rights to criticize Scientology: much of the evidence used against him consisted of general statements he made online that were very critical of Scientology but fell far short of the sort of "true threat" required to overcome his First Amendment rights. The trial court also limited his ability to explain his actions or present contrary evidence. The Court of Appeal should take a hard look at the case and reverse the conviction.

Scientology watchers will recall that Henson sought, and temporarily obtained, political asylum in Canada right after the verdict, then was arrested upon his return to the US in 2007.

The Church of Scientology has been one of the earliest, and most aggessive users of intellectual property and other claims to silence the speech of its online critics. This year Scientology supporters launched a raft of copyright complaints aimed at removing anti-Scientology videos on YouTube. In the Henson case there is a serious concern that the criminal law was misused in an effort not to respond to any real threats, but instead to silence one of the Church's loudest and most persistent online critics. It's time to undo that injustice.

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minilinks for 2008-12-23

• Obama's Total Information Awareness
  The New Republic says no campaign in history has ever compiled more information on its supporters.
  
• FBI Turning Cell Phones Into Eavesdropping Devices
  By remotely activating the microphone in mobile phones, the FBI has been able to eavesdrop on suspects.
  
• Analysis of the 2nd Circuit Decision on NSLs
  Eugene Volokh goes deep inside the 2nd Circuits decision to ask whether the ruling is good for free speech.
  
• RIAA President Speaks
  In an interview, Cary Sherman answers questions on the new RIAA plan to collaborate with ISPs to block users accused of piracy.
  
• Apple Bans Edgy Books From iPhone
  Apple is refusing to allow what it considers "objectionable content" to be sold through its App Store, even in book form.
  
• Fooling Speed Cameras
  High School students in Maryland have been tricking speed cameras into sending fines to innocent drivers.
  
• NSA on Facebook
  The National Security Administration wants to be your "friend."
  

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Is it Patentable?

Two months ago, in In re Bilski, the Federal Circuit rejected the notion that anything that produces a "useful, concrete, and tangible result" is potentially patentable. Instead, to be patent-eligible, an idea must be "tied to a particular machine or apparatus," or it must "transform a particular article into a different state or thing." (To qualify for a patent, it also has to meet various other requirements, such as being novel.)

As to transformation, the court noted that not just any transformation will do. The transformation "must be central to the purpose of the claimed process," and the "articles" transformed must either be "physical objects or substances" or "representative of physical objects or substances."

Today, in a one-paragraph decision in Classen Immunotherapies, Inc. v. Biogen IDEC, the Federal Circuit put those words into practice:

In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court’s grant of summary judgment that these claims are invalid under 35 U.S.C. § 101. Dr. Classen’s claims are neither "tied to a particular machine or apparatus" nor do they "transform[] a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.

Here is a claim from one of the patents that was at issue:

1. A method of determining whether an immunization schedule affects the incidence or severity of a chronic immune-mediated disorder in a treatment group of mammals, relative to a control group of mammals, which comprises:
    
• immunizing mammals in the treatment group of mammals with one or more doses of one or more immunogens, according to said immunization schedule, and
• comparing the incidence, prevalence, frequency or severity of said chronic immune-mediated disorder or the level of a marker of such a disorder, in the treatment group, with that in the control group.

The claimed method is not tied to a particular machine or apparatus, but surely "immunizing mammals" transforms particular articles. Why, then, isn't this patent eligible?

The key is that the immunizing of the mammals is not "central to the purpose of the claimed process." While of course the mammals must be immunized in order for someone to ascertain whether the immunization schedule used is effective, that immunizing isn't the point of the claimed invention. Rather, the invention is directed to analyzing the results of the immunizing. The immunizing itself is (to borrow more language from Bilski) "insignificant extra-solution activity" or merely a "data-gathering step" that cannot convert the claim into patentable subject matter.

(As an aside, this decision was issued as a "non-precedential" ruling, which means the judges did not think it added significantly to the body of law. The Classen patents reminded many patent practitioners of the patent in Lab. Corp. of Am. v. Metabolite Labs., Inc. [pdf], the 2006 case where the U.S. Supreme Court agreed to consider the scope of patent eligibility, but then dismissed for technical reasons. Perhaps the Classen judges concluded that even if the legal issue was significant in 2006, post-Bilski it was an easy call.)

It's good to see that the Federal Circuit is taking steps to ensure that the Bilski machine-or-transformation test has teeth, and cannot be avoided by mere artful drafting.

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RIAA v. The People Turns from Lawsuits to 3 Strikes

The lawsuits are ending. It's about time.

According to the Wall Street Journal, the recording industry has halted its mass litigation campaign against music fans for Internet file-sharing, a campaign that has targeted more than 35,000 Americans over more than 5 years (for a complete history of the lawsuits, see our RIAA v. The People white paper).

Ending the lawsuit campaign is long overdue. The campaign has been, by any measure, a failure. The lawsuits have not reduced unauthorized file-sharing and have not gotten a single artist paid.

But the news today is not all good. First, the recording industry will continue to press the thousands of pending lawsuits, presumably pushing for the usual four figure settlements. How is it going to feel to be the last college student to settle in a fight that the recording industry has now admitted isn't worth the candle?

More troubling is the news that the RIAA is pressuring U.S. ISPs into adopting some sort of "3 strikes" approach, similar to those it's been seeking in Europe (see, e.g., the French "digital guillotine" proposal). According the the Wall Street Journal article:

[T]he Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider's customers making music available online for others to take. Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

This means more music fans are going to be harassed by the music industry. As Wired's Elliot Van Buskirk points out:

Due process has been prohibitively expensive for the RIAA. The organization has long sought a more efficient way to exert pressure on suspected file sharers, and these new agreements will grant it that wish, saving it money and allowing it to pressure far more suspected file sharers, all without filing a single subpoena.

The recording industry's efforts to push "3 strikes" legislation in Europe have been definitively rejected by the European Parliament and by Sweden. While UK ISPs have agreed to send notices for rightsholders, they've stopped short of automatic Internet disconnection. This leaves France as the sole European aberration.

The problem is the lack of due process for those accused. In a world where hundreds of thousands (or millions) of copyright infringement allegations are automatically generated and delivered to ISPs, mistakes are going to be made (just look at the innocents, 1, 2, 3, 4, who were swept into the RIAA litigation machine). Anyone who has ever had to fight to correct an error on their credit reports will be able to imagine the trouble we're in for.

And being added to a nation-wide "Internet blacklist"—like that in the pending French legislation—is a disproportionate punishment, even for those who are "caught" file sharing. By conservative estimates, 1 in 5 American Internet users is an active file-sharer. Does the recording industry really think that banning 20% of Americans from the Internet is the right answer? Do ISPs? Or will the millions of ISP "warnings" just give rise to more encrypted and anonymized file-sharing mechanisms, all the while getting no artists paid?

We still need a better way forward, that legalizes file-sharing and gets artists paid. So, while today's news is long-overdue, the more interesting development is the recording industry's recent willingness to discuss collective licensing with universities.

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Reactions to Yahoo Data Retention Policy

Earlier today, Yahoo! announced a new data retention policy providing for anonymization of search queries — as well as page views, page clicks, ad views and ad clicks — after 90 days.

Google's response:

Google takes privacy very seriously and we aim to strike the appropriate balance between protecting our users' privacy and offering them benefits of data retention, such as better security measures and new innovations. Earlier this year, we already committed to anonymizing IP addresses in our server logs after nine months, significantly shorter than our previous 18 month retention policy. When we make changes to our policies, they are dependent on what will be best for our users both in terms of the services we provide and the respect of their privacy. It is a balance that we are continually evaluating.

Microsoft's response:

Microsoft believes all major players in the market should move to effective privacy practices and welcomes Yahoo’s steps on search anonymization following Microsoft’s call for an industry standard last week. Microsoft believes that the method of anonymization is more important than the anonymization timeframe and believes all major search engines need to adopt a high standard.

Last week, Microsoft had challenged its search engine rivals to adopt a six month policy, saying "We are prepared to make this change [to six months] but believe it is imperative that all search companies adopt the same standard to truly protect people's privacy."

Representative Ed Markey, chairman of the House Subcommittee on Telecommunications and the Internet's statement:

"Privacy is a cornerstone of freedom and I applaud Yahoo's announcement today for recognizing that consumers deserve ample privacy protections in the digital era to ensure trust and freedom on the Internet. I have been pressing online companies for greater voluntary efforts to refrain from the massive, systematic gathering of information about individual consumer web use and the long term retention of such data in a form that can identify the web habits, interests, searches, and purchases of individual Americans," said Rep. Markey.

"Today, Yahoo voluntarily sets a new standard for such privacy protection, a standard against which Microsoft, Google, and others will now be compared."

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First Interview with the NSA Whistleblower

Over the weekend, Newsweek revealed Thomas M. Tamm as the man who first blew the whistle on the Bush Administration's illegal warrantless wiretapping program. Last night, Mr. Tamm gave his first public interview on The Rachel Maddow Show:

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

I remember when I was figuring out that something was going on extra-judicially, I looked at the NSA websites, and they proudly talked about the Fourth Amendment of the Constitution: the right of the people to be secure in their persons and their places. That's part of the reason we fought the Revolutionary War.

And then... we learned that the only way we can be kept safe is for the government to break our laws? I just disagree with that. I think we are stronger and better as a nation when we follow the Constitution, when we follow the statutes, and when we follow the rule of law.

When asked whether he thought the illegal wiretapping program should result in prosecutions, Tamm put a finer point on his words about the rule of law:

Maddow: Do you think in order to move forward and pay tribute to the rule of law that their ought to be prosecutions?

Tamm: I certainly think it ought to be looked at. I really do... It offends me, that we feel that we're not strong enough as a country, that our laws are not strong enough, that our Congress is not strong enough, that our courts are not strong enough to protect us... I think it should be looked at very seriously.

Like AT&T; whistleblower Mark Klein's interview with Keith Olbermann earlier this year, it's a great reminder of the basic principles at stake in the fight to hold telcos accountable for illegal spying.

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EFF, FIRE and Others Urge Michigan State to Respect Student Speech in "Spammer" case

The Electronic Frontier Foundation, FIRE (Foundation for Individual Rights in Education) and ten other civil liberties organizations today sent an open letter today to Michigan State University (MSU) President Lou Anna K. Simon in defense of MSU student government leader Kara Spencer. Ms. Spencer was formally warned by MSU and labeled a "spammer" for sending e-mails to 391 faculty members raising concerns about a controversial change in the university's calendar.

MSU's email policy prohibits the sending of unsolicited e-mail "for personal purposes, advertising or solicitations, or political statements or purposes" to more than about 20-30 recipients without prior approval of University officials. EFF and the other organizations noted that, especially by prohibiting "political statements" such as Ms. Spencer's based on their content, the public university policy is constitutionally suspect. The policy also improperly grants unfettered discretion to MSU in selecting which messages can be sent to multiple students and faculty by requiring prior administration approval.

In signing today's open letter, EFF and the other organizations agree that MSU's actions against Ms. Spencer is "egregiously wrongheaded." They ask that President Simon immediately overturn the finding that Ms. Spencer is a spammer, since that label implies criminal wrongdoing. The organizations also offered to assist MSU in developing a constitutional acceptable use policy for the university.

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Yahoo To Anonymize Logs After 90 Days, Compared to Google's 9 Months

Today, Yahoo upped the ante when it comes to protecting search engine users' privacy, announcing a new data retention policy providing for anonymization of search queries — as well as page views, page clicks, ad views and ad clicks — after 90 days. This announcement comes on the heels of Google's announcement in September that it would be anonymizing its logs after 9 months.

It's always good to see search companies competing to provide more privacy to their users, and with this aggressive move, Yahoo has sent a serious shot across Google's bow. Yahoo has shown that a retention period shorter than Google's — much shorter than Google's — is an achievable goal for a major search engine. This announcement should be followed by another from Google, promising to match or beat Yahoo's retention period. If it isn't, though, legislators, regulators and privacy advocates should demand an answer from Google to the question: "If Yahoo can do it, why can't you?"

Unfortunately, it's hard to gauge the true privacy impact of this policy change until we know exactly what steps Yahoo will be taking to anonymize the data. The devil's in the details, and if Yahoo's anonymization process isn't robust enough, this new logging policy may end up being more privacy PR than privacy protection. Fully anonymizing IP addresses and cookie data can be tricky, and even if that data is thrown away completely, there's still the possibility of individuals being identified based on the content of their search queries, as AOL's search data spill demonstrated.

So, as Yahoo finalizes its policy plans, it should take a look at EFF's newly-revised Best Practices for Online Service Providers, which recommends a range of techniques to strongly anonymize online user data. Hopefully, we'll see the details of Yahoo's plan soon, as well as new announcements from other search engines trying to keep up in this accelerating privacy competition. Internet users have long trusted search engines and internet portals like Yahoo and Google with the privacy of their most intimate and sensitive data, and we're glad to see those companies finally vying to earn that trust.

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The Twelve Days of EFF

We'd like to share this animated holiday greeting titled the 12 Days of EFF to celebrate the season and thank our friends and supporters for a good year in the fight for digital rights.

Thanks and happy holidays!

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Second Circuit Rules Against National Security Letter Gag Orders

Today, the federal Second Circuit Court of Appeals gave another setback to the Bush Administration's claims for sweeping new Executive powers. The court found the National Security Letter (NSL) statute's gag provision unconstitutional in Doe v. Mukasey. The NSL law allows the government to seek your electronic communications transactional records from your ISP without obtaining a court order. The gag provisions required the recipient of a NSL to stay quiet as long as the government desired, with only a fig leaf of judicial review.

The fig leaf was not good enough to satisfy the First Amendment. The Second Circuit struck down the statute's truncated judicial review provisions, which required the court to treat the FBI's assertions as conclusive absent evidence of bad faith. In addition, the government was required to initiate judicial proceedings to enforce the gag, instead of the ISP who received the NSL. The Court also construed several controversial aspects of the NSL statute narrowly, substantially reducing the scope of the FBI's gag power.

The Second Circuit allowed the FBI to continue to issue NSL to communications service providers, but only pursuant to the new narrower interpretation. The Court did not address the Fourth Amendment implications of NSLs, since the government had withdrawn the NSL at issue before the court ruled, leaving the gag order as the only live issue. District Court Judge Marrero's prior decision is also worth reading.

The ACLU represents the Doe plaintiff subject to the gag order. EFF, along with the National Security Archive, submitted an amicus brief in support of the Doe plaintiff.

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