Deeplinks
When does an online fantasy cross the line into criminal conspiracy? That’s the issue the Second Circuit Court of Appeals is currently weighing in United States v. Gilberto Valle, the so-called “cannibal cop” case. EFF filed an amicus brief in support of Valle today, arguing that finding him guilty of conspiracy based on his online statements would put us in the scary realm of “thoughtcrime.”
Valle was a New York City police officer charged with and convicted of both conspiracy to kidnap and violating the Computer Fraud and Abuse Act (“CFAA”). Earlier this month, we filed a separate amicus brief in Valle’s appeal of his CFAA conviction, arguing that it was a dangerous expansion of criminal law. But the conspiracy charges are equally troubling, stemming from discussions Valle had in chat rooms on fantasy role-playing fetish websites involving cannibalism. The government alleged that these discussions were more than just fantasy role-playing, and actually a concerted criminal plot to kidnap and eat women.
The district court judge threw out the jury's conspiracy verdict in an 118-page ruling, stating “the nearly yearlong kidnapping conspiracy alleged by the government is one in which no one was ever kidnapped, no attempted kidnapping ever took place, and no real-world, non-Internet-based steps were ever taken to kidnap anyone.” But the government has appealed the reversal of the conspiracy conviction, so we’ve filed another amicus brief in support of Valle, arguing that the trial court got it right.
The court ultimately believed—and we agree—that finding Valle guilty of conspiracy based on his online statements would hold him guilty of thoughtcrime (or “crimethink” in Newspeak). It’s understandable that a jury would find the discussions taking place in these chat rooms disgusting. Juries are instructed to leave emotion out of the deliberation room and to coldly apply the facts to the law, but that can be hard to do in cases involving controversial facts. That’s why it’s important for reviewing judges to independently examine the context of speech in order to determine whether speech loses its protected status and is fairly determined “criminal.”
That’s exactly what we tell the Second Circuit to do in our amicus brief: rather than simply deferring to the jury’s finding of guilt, the court needs to independently examine the context of the speech and determine whether it rises to conspiratorial speech that is criminal and unprotected by the First Amendment. Courts have routinely used their own independent review of speech to determine whether speech qualifies as soliciting or inciting a criminal act, slander, libel and other forms of unprotected speech. Our brief explains why it should be no different when it comes to speech alleged to be part of a criminal conspiracy. The Center for Democracy & Technology, Marion B. Brechner First Amendment Project, National Coalition Against Censorship, Pennsylvania Center for the First Amendment and a number of First Amendment and Internet law scholars also signed onto the amicus brief.
More critically, we note that this independent review is especially important in cases involving controversial facts like this one, to ensure that bad facts (and emotion-driven juries) don’t create bad law that will have an effect beyond the case at hand. The lower court’s meticulous review of the facts of the case and the speech at issue—ultimately concluding that Valle’s speech was fantasy rather than part of a true conspiracy—should serve as a blueprint for other courts looking at allegedly criminal speech. Hopefully the Second Circuit will follow the lower court’s lead and find—after conducting its own independent review—that Valle’s fantasies were not a criminal conspiracy.
Thanks to UCLA law professor Eugene Volokh of the Scott & Cyan Banister First Amendment Clinic for writing our amicus brief.
Open government advocates file requests for public records because it’s not only our right, but our duty as citizens to find out what the government is doing in our name, how officials are spending our tax dollars, what kinds of mistakes they’re making, what problems our communities face, and how we can improve society through policy changes.
Unfortunately, some public officials interpret transparency as a threat, best answered not with documents, but intimidation, insults, and other forms of retaliation.
In this fourth and final round of The Foilies—EFF’s Sunshine Week “awards” for outrageous experiences in pursuing public records—we’re focusing on how government agencies (and one rock star) lashed out at citizens and journalists for attempting to unearth unflattering truths. We’ll also cover a few cases where that behavior had consequences.
Chilliest Home Visit
Marshall County Sheriff’s Department (Tennessee)
Alex Friedmann of Prison Legal News was investigating abuses and misconduct in the Marshall County Jail by filing requests for records. That didn’t sit well with the local sheriff, Norman Dalton, who demanded Friedmann show up in person to file the request, which Friedmann pointed out was a clear contradiction of official policy. When Dalton refused to hand over the records, Friedmann sued.
As a local TV station, WSMV, reported:
Not only did the sheriff's office deny him those requests, but Dalton admitted on the witness stand to ordering background checks on Friedmann, calling the [Tennessee Department of Safety and Homeland Security] and even going to Friedmann's house.
Friedmann won his case, while Dalton lost his reelection bid later that year.
The Guacamoia Prize
Jack White
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When the University of Oklahoma booked Jack White for a gig, the intrepid student reporters at The Oklahoma Daily filed a brief records request for the rock star’s contract. It turned out the school was paying around $80,000 for the show, but that wasn’t the only cost. White’s rider [PDF]—a list of requests musicians provide in advance of the show—made some bizarre demands, including there be no bananas on the premises and that he be provided with a bowl of homemade guacamole. He even included the specific recipe. The students published the whole thing.
Jack White didn’t take it well. During the performance he ridiculed the concept of freedom of information and the freedom of press and later his booking company blacklisted the university for future performances with its artists. White then went onto his blog to further chastise the students, writing in all lowercase:
am i disappointed in young journalists at their school paper? absolutely. but i forgive them, they’re young and have learned their lesson about truth and ethics hopefully.
Obviously the students were well within their rights to see how their tuition is being spent. In solidarity, EFF made some guacamole from the recipe—chunky, just the way White likes it.
Most Passive-Aggressive Release of Records
San Diego County District Attorney’s Office
In early 2014, a Mexican national and his cohorts were arrested for allegedly illegally funnelling money into San Diego County District Attorney Bonnie Dumanis’ campaign for mayor. The DA claimed she knew nothing about the donations, saying “I have nothing to hide,” and, indeed, public records requests for communications with or involving the donor turned up very little.
Then, during court hearings, it emerged that Dumanis had in fact written a college recommendation letter on behalf of the donor’s son. Immediately, the press filed requests under the California Public Records Act, demanding the document. Dumanis refused, claiming that the letter was private correspondence, despite the fact that it used her official title and was written on her office’s letterhead.
Only when the press joined together to threaten a lawsuit, did the District Attorney release the letter—but not to the reporters who had asked for it. Instead, one TV station scored the exclusive by saying they supported her position and promising a friendly interview that would emphasize that she didn’t break the public records law.
Best Tweeted Apology
US Navy
NBC reporter Scott MacFarlane was seeking records related to the 2013 Navy Yard shooting under the Freedom of Information Act. Then the Navy accidentally sent him internal correspondence in which the staff processing his FOIA discussed their strategy to push back against what they called a “fishing expedition,” including providing him with a “costly” estimate to influence him to narrow his FOIA request.
Now, to us, this is such a common practice across government agencies, big and small, that we just take it for granted. But what’s surprising here is how the Navy reacted when the memo went public. The Navy ordered a review of the FOIA office, sent MacFarlane a direct apology, then tweeted it out publicly:
Best Comeuppance
Metropolitan Housing Alliance (Little Rock, Arkansas)
The Arkansas Democrat-Gazette filed public records requests with the Metropolitan Housing Alliance, Little Rock’s affordable housing authority, for work orders and tenant complaints for the previous two years. The head of the agency responded with a $16,378 invoice to hire outside contractors to process the request and purchase supplies, something that isn’t allowed under the state’s Freedom of Information Act. The paper enlisted the help of the Pulaski County Prosecuting Attorney Larry Jegley to obtain an arrest warrant from a judge since Arkansas is one of the few places where breaking open records laws is a crime, in this case, a Class C Misdemeanor.
It was the first time in the Jegley’s 23-year history as prosecutor he has had to take it this far. As the newspaper reported:
"Usually, we can work things out for people to get the documents they're entitled to -- that's ultimately what it's all about," Jegley said, calling this instance with the housing agency "over the top," "outrageous" and "absolutely indicative of bad faith on the part of the agency and the responsible individuals."
Forte pleaded “not guilty,” and the case is set for trial this spring.
For earlier posts from The Foilies:
The Foilies Round 1: Foiled by the Process
The Foilies Round 2: Law Enforcement Accountability
The Foilies Round 3: Ridiculous Redactions and Records Errata
Last week, the ACLU filed a welcome additional challenge to the NSA’s warrantless Internet backbone surveillance (aka “Upstream” surveillance) on behalf of Wikimedia and a number of other media and human rights organizations. We applaud all of those involved in bringing the case. It adds another avenue of attack on one of the NSA’s most audacious programs—tapping into the very backbone of the Internet and thereby putting all of our online activities under scrutiny.
Wikimedia, the non-profit that operates Wikipedia, succinctly explained in a blog post why the NSA’s “collect it all” mentality is dangerous: it forces Wikipedia users to “look over their shoulders before searching, pause before contributing to controversial articles, or refrain from sharing verifiable but unpopular information.”
The Upstream surveillance challenged by Wikimedia is also challenged in EFF’s longstanding lawsuit, Jewel v. NSA. (Laura Poitras’ Academy Award-winning documentary Citizenfour even features a hearing in the Jewel case back in 2011.) Jewel is a class action on behalf of ordinary Americans brought in San Francisco federal court, whereas the Wikimedia case was filed by non-profit organizations and is pending in Maryland federal court.
Both cases are now supported by the NSA’s public admissions that what it calls Upstream involves copying Internet traffic—including e-mails, chat, web browsing and other communications—as the data traverses the fiber optic backbone of the Internet. As our graphic below shows—adapted slightly from one we used in Jewel and based on admissions contained in previously secret court orders (pdf) and the Privacy and Civil Liberties Oversight Board report (pdf) and other sources—the NSA sits between Internet users, such as Wikipedia visitors and editors, and web servers like Wikipedia’s. It intercepts their communications in order to copy and then analyze and filter them. (Links to the government admissions and other documents supporting this graphic are available here.) This includes reviewing both the content and the metadata of messages retained past an initial filter.
The NSA claims that Section 702 of the FISA Amendments Act (FAA) authorizes them to collect your communications involving “non-US persons,” but of course you have a right to have a private conversation with someone abroad and to access information stored on a website hosted abroad without the government involved at all. And even by the government’s own description, its Internet backbone collection routinely sweeps up and searches through the content of a tremendous number of purely domestic communications, where the requirement to get a warrant is unequivocal.
Like the Wikimedia plaintiffs, EFF has argued in Jewel that Internet backbone surveillance violates Internet users’ constitutional rights. Specifically, we argue that by copying traffic from the backbone, the NSA has improperly seized communications, and by then searching the copied material for “selectors” such as e-mail addresses, it has carried out an unreasonable search in violation of the Fourth Amendment.
Last month, however, the court issued a disappointing decision on the Upstream collection in Jewel. The court wrote that despite reams of public evidence, including the government’s own admissions, the plaintiffs had failed to paint a complete enough picture of the program to establish their standing. It also said that the additional information needed was just too secret to serve as a basis for a court decision about whether the constitution has been violated. As a result, the District Court found that a “full and fair adjudication” of our clients' Fourth Amendment claims would require consideration of evidence covered by the state secrets privilege and would risk harm to national security.
We disagree with this ruling and will continue to pursue our claims. We believe it is dangerous in a democracy to allow claims of secrecy to prevent evaluation of whether the government has invaded the constitutional rights of millions of innocent Americans. Such secrecy is especially inappropriate when it is used to preclude consideration of a program that is already widely acknowledged by the government. Moreover, the law actually provides a mechanism for considering secret evidence concerning electronic surveillance without harm to national security, and this same court had previously ruled that this mechanism largely displaced the state secrets privilege.
Most importantly, however, we are loudly cheering on our colleagues at the ACLU, Wikimedia and others in their challenge to Upstream collection. We need to reaffirm that our constitutional rights aren’t subject to a national security exception and reinstate the bedrock American freedom of innocent people to engage in private conversation.
The Senate Intelligence Committee advanced a terrible cybersecurity bill called the Cybersecurity Information Sharing Act of 2015 (CISA) to the Senate floor last week. The new chair (and huge fan of transparency) Senator Richard Burr may have set a record as he kept the bill secret until Tuesday night. Unfortunately, the newest Senate Intelligence bill is one of the worst yet.
Cybersecurity bills aim to facilitate information sharing between companies and the government, but their broad immunity clauses for companies, vague definitions, and aggressive spying powers make them secret surveillance bills. CISA marks the fifth time in as many years that Congress has tried to pass "cybersecurity" legislation. Join us now in killing this bill.
The newest Senate Intelligence bill joins other cybersecurity information sharing legislation like Senator Carper's Cyber Threat Sharing Act of 2015. All of them are largely redundant. Last year, President Obama signed Executive Order 13636 (EO 13636) directing the Department of Homeland Security (DHS) to expand current information sharing programs. In February, he signed another Executive Order encouraging regional cybersecurity information sharing and creating yet another Cyber Threat Center. Despite this, members of Congress like Senators Dianne Feinstein and Richard Burr continue to introduce bills that would destroy privacy protections and grant new spying powers to companies.
New Countermeasures and Monitoring Powers
Aside from its redundancy, the Senate Intelligence bill grants two new authorities to companies. First, the bill authorizes companies to launch countermeasures (now called "defensive measures" in the bill) for a "cybersecurity purpose" against a "cybersecurity threat." "Cybersecurity purpose" is so broadly defined that it means almost anything related to protecting (including physically protecting) an information system, which can be a computer or software. The same goes for a "cybersecurity threat," which includes anything that "may result" in an unauthorized effort to impact the availability of the information system.
Even with the changed language, it's still unclear what restrictions exist on "defensive measures." Since the definition of "information system" is inclusive of files and software, can a company that has a file stolen from them launch "defensive measures" against the thief's computer? What's worse, the bill may allow such actions as long as they don't cause "substantial" harm. The bill leaves the term "substantial" undefined. If true, the countermeasures "defensive measures" clause could increasingly encourage computer exfiltration attacks on the Internet—a prospect that may appeal to some "active defense" (aka offensive) cybersecurity companies, but does not favor the everyday user.
Second, the bill adds a new authority for companies to monitor information systems to protect an entity's hardware or software. Here again, the broad definitions could be used in conjunction with the monitoring clause to spy on users engaged in potentially innocuous activity. Once collected, companies can then share the information, which is also called “cyber threat indicators,” freely with government agencies like the NSA.
Sharing Information with NSA
Such sharing will occur because under this bill, DHS would no longer be the lead agency making decisions about the cybersecurity information received, retained, or shared to companies or within the government. Its new role in the bill mandates DHS send information to agencies—like the NSA—"in real-time." The bill also allows companies to bypass DHS and share the information immediately with other agencies, like the intelligence agencies, which ensures that DHS's current privacy protections won’t be applied to the information. The provision is ripe for improper and over-expansive information sharing.
Overbroad Use of Information
Once the information is sent to any government agency (including local law enforcement), it can use the information for reasons other than for cybersecurity purposes. The provisions grant the government far too much leeway in how to use the information for non-cybersecurity purposes. The public won’t even know what information is being collected, shared, or used because the bill will exempt all of it from disclosure under the Freedom of Information Act.
In 2012, the Senate negotiated a much tighter definition in Senator Lieberman's Cybersecurity Act of 2012. The definition only allowed law enforcement to use information for a violation of the Computer Fraud and Abuse Act, an imminent threat of death, or a serious threat to a minor. The Senate Intelligence Committee's bill—at the minimum—should've followed the already negotiated language.
Near-Blanket Immunity
The bill also retains near-blanket immunity for companies to monitor information systems and to share the information as long as it's conducted according to the act. Again, "cybersecurity purpose" rears its overly broad head since a wide range of actions conducted for a cybersecurity purpose are allowed by the bill. The high bar immunizes an incredible amount of activity. Existing private rights of action for violations of the Wiretap Act, Stored Communications Act, and potentially the Computer Fraud and Abuse Act would be precluded or at least sharply restricted by the clause. It remains to be seen why such immunity is needed when just a few months ago, the FTC and DOJ noted they would not prosecute companies for sharing such information. It's also unclear because we continue to see companies freely share information among each other and with the government both publicly via published reports, information sharing and analysis centers, and private communications.
A Fatally Flawed Bill
This fatally flawed bill must be stopped. It's not a cybersecurity, but a surveillance bill. And it can be voted on at any time. Get in touch with your Senator, tell them to vote no on the bill, and to not cosponsor the Senate Intelligence Committee's Cybersecurity Information Sharing Act of 2014.
This week is Sunshine Week, an annual celebration to promote government transparency and access to information. As a public interest organization dedicated to these ideals, EFF continues to call on Congress to update the Freedom of Information Act, a key tool for citizens to obtain federal government records and to hold federal agencies accountable.
Two FOIA reform bills are pending in Congress. The Senate bill is the FOIA Improvement Act of 2015 (S. 337), which the Senate Judiciary Committee passed in February. The House bill, the FOIA Oversight and Implementation Act of 2015 (H.R. 653), has yet to be considered by the House Committee on Oversight and Government Reform.
An important aspect of both bills is that they narrow Exemption 5, which permits an agency to withhold inter-agency or intra-agency “pre-decisional” memos and other documents that reflect the agency’s “deliberative process” in reaching a final decision. Congress’ legitimate policy goal in enacting Exemption 5 was to permit some level of confidentiality in order to promote candor among agency employees.
Both bills create a time limit for documents withheld under Exemption 5, meaning that even if Exemption 5 technically applies to records, if the records are older than 25 years from the date of the FOIA request, the agency cannot withhold them from disclosure. The House bill goes a step further and requires disclosure of “records that embody the working law, effective policy, or the final decision of the agency.”
These reforms are important, particularly the language in the House bill, because Exemption 5 has been inappropriately used by many federal agencies to withhold documents that are arguably final decisions. The exemption has been used by the Justice Department, in particular, to withhold opinions by the Office of Legal Counsel (OLC), which is considered the authoritative source on how the Executive Branch interprets the law.
We lost a FOIA lawsuit last year that sought to obtain an OLC opinion that authorized the FBI’s use of “National Security Letters” to obtain citizens’ call logs without legal process and contrary to existing law. The ACLU and the New York Times won a similar lawsuit to obtain the OLC opinion authorizing the “targeted killing” of Americans only because the government had voided its ability to invoke Exemption 5 when it made various public statements about the targeted killing program.
One disappointing aspect of the FOIA reform bills is that they do not include a public interest balancing test for Exemption 5. Such language was originally included in the Senate bill last Congress, but it was stripped out at the last minute and not included in either bill this Congress. A public interest balancing test would require the disclosure of records if the public interest in doing so outweighs the agency’s interest in withholding the documents. This would give federal judges the power to order disclosure even if the agency appropriately invokes Exemption 5. The House bill does include language that directs the agencies to generally consider “whether the release of the records would be in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.”
If FOIA made clear that agencies cannot withhold documents that reflect the “working law, effective policy, or the final decision of the agency,” and agencies and judges must consider the public interest in disclosure even if Exemption 5 technically applies, perhaps we would have won our lawsuit and the ACLU and New York Times would not have had to rely on unique facts to win their case. Without public access to OLC opinions, which have also authorized torture and warrantless wiretapping, the federal government creates a body of secret law, which is antithetical to a democratic society.
Notwithstanding the importance of narrowing the scope of Exemption 5, it is important to note that FOIA exemptions are generally discretionary, meaning that even if an exemption technically applies to a request, an agency has the discretion to disclose the records anyway. The FOIA reform bills would force greater transparency by codifying the Obama administration’s policy that agencies should implement FOIA under a presumption of openness and that records should only be withheld if the agencies can “reasonably foresee” harm from disclosure, not merely because an exemption technically applies. This would prohibit future administrations from shifting to a less transparent FOIA policy, which was the case with the last Bush administration.
The FOIA reform bills also strengthen the Office of Government Information Services (OGIS), also known as the FOIA ombudsman, that works with requesters and agencies to resolve FOIA disputes in order to avoid costly litigation. Both bills clarify that OGIS can issue its annual report (with recommendations for how agencies can improve FOIA implementation) without obtaining prior approval from any other Executive Branch agency or office, which has been a problem in the past. The Senate bill also provides that OGIS can issue advisory opinions on disputes between requesters and agencies at anytime, either pursuant to its own discretion or a request from a party (current law only authorizes advisory opinions pursuant to OGIS’s discretion and after mediation fails).
Finally, both bills mandate the creation of a “consolidated online request portal” to provide the public with a “one-stop shop” for submitting FOIA requests to federal agencies, which is already underway by a few select agencies at FOIAonline.
While the FOIA reform bills could go further in improving FOIA implementation, they both offer meaningful changes that would enhance government transparency and advance the public’s right to know. We urge Congress to be true to the spirit of Sunshine Week and pass FOIA reform legislation as soon as possible.
Government agencies sure love their black markers.
For transparency activists, receiving overly redacted documents is a guilty pleasure. Sure, we'd all prefer to have the records unmarred by secrecy (except for narrow occasions, such as when the black-outs legitimately protect people's privacy), but sometimes those redactions are the first indication that we've hit pay dirt. Other times, these redactions provide comic relief.
In anticipation of Sunshine Week, EFF called for the public to submit the most absurd redactions they've seen for for The Foilies, our new “awards” for shenanigans in the Freedom of Information process. The big takeaway from the nominations we received: redactions can be unintentional conceptual art.
Most Surreal Retirement Party
Federal Bureau of Intelligence
USA Today reporter Brad Heath submitted a FOIA request to the FBI for documents related to a retirement party, to which he believed a certain controversial figure had been invited. Rather than just rejecting the record request altogether, to the agency's credit, the FBI's FOIA team went through the photos one by one, adding white squares to mask the faces of all the attendees in an admirable attempt to balance transparency and confidentiality.
The result: a surreal photo album from the Blockhead family reunion.
Worth noting for future redactors: faces are censored with boxes, but hugs and kisses on the cheek are censored with irregular hexagons.
For the full batch, click here. For the just as hilariously redacted slideshow that was reportedly shown at the party, click here.
Tiniest Font
U.S. State Department
We'll let ProPublica journalist T. Christian Miller explain the back story of this gem:
This was a State Department cable returned as part of a request of all cables from the U.S. Embassy in Liberia to the State Department between 2005 and present. The cables were an important source of information in ProPublica and Frontline’s project called Firestone and the Warlord about how the iconic American tire company helped finance warlord Charles Taylor’s rise to power. In fairness, the State Dept. delivered only one cable in this format, with type so tiny I called it Lilliputian Font, maybe 4 pt in actual size. So it was probably an accident. But it was about the “worst forms of child labor in Liberia.” So who knows?
Most Ironic Literary Redaction
Tie: Ibrahim v. DHS opinion and Seattle Public Schools
Ask us to choose between Kafka and Orwell and you'll get a hung jury. But instead of throwing the case out, we're just going to split the foil down the middle.
The first is from an infamous "No Fly" case, in which a Malaysian professor, Rahinah Ibrahim, sued to get her name taken off the Department of Homeland Security's No Fly list, since it had wound up there by accident. After an eight-year battle, Ibrahim received a favorable decision from the judge last year. The version of the opinion made public was chockful of redactions, including this deliciously ironic one:
(h/t Ars Technica)
Technically the second request was just a few days outside our cut off point, but we're making an exception because it's just too perfect to hold for another year. This one was nominated by Isaiah Earhart, a parent of a child in the Seattle Public Schools system, who was seeking information about administration of the school's robotics club in 2014. The text of the email was redacted under an attorney-client privilege exemption, but note the ironic signature quote:
Most Mysterious Mystery Meat
Chicago Public Schools
Monica Eng of WBEZ filed a records to learn what kind of ingredients make up school lunches fed to students. Chicago Public Schools came back with this frustratingly vague response:
Burlington County Times staff writer Sharon Lurye, who sent in this nomination, commented, "No need to worry about what's in the mystery meat in the cafeteria. These chicken nuggets are guaranteed to be made only from 100% chicken nuggets." According to Eng, the school district released the actual list of ingredients a few days later after the Illinois Attorney General got involved.
For other posts from The Foilies:
The Foilies Round 1: Foiled by the Process
The Foilies Round 2: Law Enforcement Accountability
The Supreme Court took a major step in cutting back on abstract software patents last June when it issued its landmark ruling in Alice Corp. v. CLS Bank. In essence, the court said that abstract ideas implemented by conventional computer process are not eligible for patent protection. Since then, the PTO has attempted to write guidance applying the law to pending patent applications. Unfortunately, the PTO has floundered and continues to grant far too many invalid patents. This week EFF filed public comments asking the Office to do more to ensure its examiners apply the new law.
In our comments, we criticize the PTO’s latest statement on Alice. The main problem with the PTO’s interim guidance on patent eligibility is that it doesn’t really provide much guidance. Faced with the challenge of applying recent rulings, the Office simply summarizes a series of court decisions without explaining how examiners should apply them to new applications. Even worse, the PTO has included some old decisions from lower courts that are, at the very least, questionable law after Alice.
We think the PTO should instead focus on explaining how Alice has changed the law. Most important is to emphasize to examiners that abstract ideas and functions implemented by conventional computer processes are no longer patent eligible. Prior Federal Circuit authority held that a programmed general purpose computer was a patent-eligible machine. That is no longer the law.
Our comments identify a number of recently-issued patents that should not have been granted after the Alice ruling. For example, US Patent No. 8,978,130 was just issued and is basically a patent on getting parental permission (but over a computer with authorization codes). Figure 7 from this patent is shown here. Back in 2013, the examiner rejected a number of the proposed claims writing: “Examiner advices [sic] the applicant to add hardware (i.e., micro-processor or computer processor) to the claim language.” Under now-overruled law, it was often enough to simply tack on generic hardware to save an abstract software patent claim. Alice changed that. Nevertheless, the examiner never revisited the eligibility issue and allowed the patent.
The Supreme Court’s decision in Alice will only help if the PTO applies it diligently. Even bad patents are useful to trolls as litigation weapons since they are so expensive to overturn. To cut the problem off at the source, we need the PTO to stop the flood of invalid software patents.
Last year, the current President of the European Commission, Jean-Claude Junker, declared that his number one priority was to “create a digital single market for consumers and businesses,” in which “consumers can access music, movies and sports events on their electronic devices wherever they are in Europe and regardless of borders”.
This is a dream that many Europeans share, and is reflected in the draft report for the European Parliament put together by Julia Reda, which EFF commented on last month. Reda's proposals to the Commission provide a road-map for how to get from here to there—from a convoluted system of 28 different markets, each with different copyright rules, towards a system where licensing rules and users' rights are harmonized, much as they are between the 50 United States.
Reda's report, which is one of two reports on copyright that the European Parliament is preparing as non-binding inputs for the Commission, has drawn proposed amendments from four of the Committees of the Parliament. Votes on those amendments are coming up between March 24 and May 7 (the full complexity of this process is illustrated in the diagram below, prepared by our friends at EDRI, who also have a document pool with more information).
The majority of the proposed amendments from other Parliamentarians are disheartening for Europeans wishing to see real copyright reform. The amendments would gut the report of some of its key recommendations, including that copyright limitations and exceptions should be unified across Europe, that there should be a European version of “fair use”, and that DRM should not be allowed to inhibit users from accessing works in ways that copyright law allows.
Many of these proposals make high-sounding references to the need to preserve Europe's cultural diversity. This sounds good on the surface, but these are actually an argument in favor of retaining 28 different sets of copyright laws, all with their own distinct sets of copyright limitations and exceptions. This would make the dream of a single European digital market all but impossible.
One of the problems behind the lack of vision displayed by these European Parliamentarians is that they have not been exposed to a balanced cross-section of views of all stakeholders. In particular, a new cross-cutting Working Group on Intellectual Property Rights and Copyright Reform, which contains representatives from all of the groups who have commented on Reda's report, is being briefed only by a narrow retinue of lobbyists and analysts who hold views favorable to rightsholders.
Today, EFF joined 23 other organizations and networks in writing to the Coordinator of the Working Group, Jean-Marie Cavada, to ask that it ensure a more balanced representation of views going forward. The letter states:
Making copyright rules future-proof requires a holistic approach. This can only be achieved if the full spectrum of stakeholders is adequately represented and given a chance to speak in front of Members of Parliament who will ultimately be tasked with passing new copyright legislation.
It will still be an uphill battle to achieve meaningful copyright reform for Europe's almost 800 million citizens—the process of European lawmaking is slow, baroque, and beset with weak points where compromises can creep in. But a good first step in keeping the dream of a digital single market for Europeans alive would be to ensure that copyright users, and not just rightsholder lobbyists, get a fair chance to be heard.
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- Section 230 of the Communications Decency Act
- Social Networks
- SOPA/PIPA: Internet Blacklist Legislation
- Student and Community Organizing
- Surveillance and Human Rights
- Surveillance Drones
- Terms Of (Ab)Use
- Test Your ISP
- The "Six Strikes" Copyright Surveillance Machine
- The Global Network Initiative
- The Law and Medical Privacy
- Trans-Pacific Partnership Agreement
- Travel Screening
- TRIPS
- Trusted Computing
- Video Games
- Wikileaks
- WIPO
- Transparency
- Uncategorized
eff.org/nsa-spying
