Press Releases: January 2015
Federal Law Blocks Extraordinary and Burdensome Subpoena
San Francisco - A high-profile battle over whether Google must respond to an unusual and dangerous subpoena raises fundamental concerns about federal free speech law and the protections it affords hosts of online content, the Electronic Frontier Foundation (EFF) argued in an amicus brief filed today.
Attorney General Jim Hood of Mississippi issued the 79-page subpoena in October, seeking information about Google's policies and practices with respect to content it hosts, Internet searches, and more. The invasive request appeared to be based primarily on allegedly unlawful activities of third parties who use Google's services. Then in December, journalists reported that documents disclosed in the Sony hack outlined a Hollywood plot against Google, including plans to pressure Hood into aggressively investigating the search engine giant. In the face of these developments, and the Attorney General's unwillingness to narrow the request, Google sought protection from a Mississippi federal court.
"Despite the dramatic storyline, this all comes down to well-established law protecting hosts of Internet content from liability for much of what their users say and do on their platforms: Section 230 of the Communications Decency Act," said EFF Intellectual Property Director Corynne McSherry. "If CDA 230 was disregarded, and online service providers were required to respond in full to subpoenas like this one, they would inevitably face extraordinary legal costs. That would be enough for most businesses to get out of the interactive content business all together, as everything from comments on news stories to sharing of home videos could be a recipe for expensive litigation."
In the amicus brief filed today, EFF argues that Congress' express intent was to encourage the development of new communications technologies by holding online speakers responsible for what they say—instead of the soapboxes where they say it. It's a principle that has allowed the Internet and the myriad online communities it contains to thrive.
"CDA 230 is perhaps the most valuable law we have for protecting innovation and online speech," said EFF Frank Stanton Legal Fellow Jamie Williams. "The Mississippi subpoena is an obvious violation of federal statute, and the court should grant Google the protection that Congress intended."
The Center for Democracy and Technology, the Open Technology Institute, Public Knowledge, and R Street Institute joined EFF in the brief.
For the full amicus brief in Google v. Hood:
https://www.eff.org/document/amicus-brief-25
For more on CDA 230:
https://www.eff.org/issues/cda230
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Jamie Williams
Frank Stanton Legal Fellow
Electronic Frontier Foundation
jamie@eff.org
Citizens Have a Right to Challenge Laws That Violate the Fourth Amendment
San Francisco - The Electronic Frontier Foundation (EFF) today filed an amicus brief with the U.S. Supreme Court in a challenge brought by hotel owners against a Los Angeles city ordinance that allows police to access guest registers without consent, warrant, or other legal process. Supporting the hotel owners, EFF argues that people must have the right to challenge surveillance laws like these on Fourth Amendment grounds, even before police have used the law to conduct a suspicionless search.
"In an era of pervasive surveillance, the ability to challenge overbroad laws that invade privacy is more important than ever," Senior Staff Attorney and Adams Chair for Internet Rights Lee Tien said.
Central to City of Los Angeles v. Patel is a city ordinance requiring hotel operators to retain certain guest registry information, which they must make available to police officers on demand. Hotel operators aren't allowed to challenge requests for guest information in court in advance and can be punished with a jail or fine if they refuse to comply.
The U.S. Court of Appeals for the Ninth Circuit found that the ordinance violates the Fourth Amendment: individuals subject to an "administrative search"—a kind of warrantless, suspicionless search that may be performed for reasons unrelated to criminal investigations—must be allowed to object in court before they can be punished for resisting the requests. However, a dissenting opinion argued that not only does the Los Angeles ordinance satisfy the Fourth Amendment, but the Constitution does not allow the hotel owners to challenge the law until the government actually uses the law to conduct a warrantless search against them.
EFF's brief addresses the latter question, arguing that the Fourth Amendment must allow "facial" challenges to laws that authorize warrantless searches.
"There are many reasons why this is the right rule," EFF Legal Fellow Andrew Crocker said. "Facial challenges preserve individuals' constitutional rights and they guard against laws that would chill individuals' protected Fourth Amendment activity."
The Supreme Court will hear oral arguments in Patel on March 3, 2015. A recording of the argument should be available shortly after that.
For EFF's brief: https://www.eff.org/document/eff-amicus-los-angeles-v-patel
For more information on the case: https://www.eff.org/cases/city-los-angeles-v-patel
Contact:
Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org
Department of Justice to Release Analysis of Law Enforcement and Intelligence Agency Access to Census Records
San Francisco - The Electronic Frontier Foundation (EFF) has won its four-year Freedom of Information Act lawsuit over secret legal interpretations of a controversial section of the Patriot Act, including legal analysis of law enforcement and intelligence agency access to census records.
The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215.
"The public trusts that information disclosed for the census won't wind up in the hands of law enforcement or intelligence agencies," Staff Attorney Mark Rumold said. "The public has a right to know what the Office of Legal Counsel's conclusions were on this topic, and we're happy to have vindicated that important right."
In October 2011—the 10th anniversary of the signing of USA Patriot Act—EFF sued the Justice Department to gain access to all "secret interpretations" of Section 215. At earlier stages in the litigation, the Justice Department had refused to publicly disclose even the number of documents that were at issue in the case, claiming the information was classified.
In June 2013, the lawsuit took a dramatic turn after The Guardian published an order from the Foreign Intelligence Surveillance Court authorizing the bulk collection of call records data of Verizon customers. That disclosure helped EFF secure the release of hundreds of pages of legal opinions, including multiple opinions of the Foreign Intelligence Surveillance Court excoriating the NSA for disregarding the court's orders.
However, the Justice Department continued to fight for secrecy for the legal opinion over access to census data under Section 215. Last August, a federal district court judge ordered the government to disclose the OLC opinion.
"The Justice Department has made a wise decision in dismissing the appeal," Rumold said. "We filed this suit nearly four years ago to inform the public about the way the government was using Section 215. We're well overdue to have a fully informed, public debate about this provision of law, and hopefully the disclosure of this opinion will help move the public debate forward."
Although the motion for dismissal was filed today, the government has not provided EFF with the opinion. After receiving the document, EFF will also make it available through its website.
For more information on the case visit: https://www.eff.org/foia/section-215-usa-patriot-act
Contact:
Mark Rumold
Staff Attorney
Electronic Frontier Foundation
mark@eff.org
Senior Staff Attorney Lee Tien to Be New Adams Chair for Internet Rights
San Francisco - The Electronic Frontier Foundation (EFF) has received a $3 million dollar grant from the Adams Charitable Foundation to fund the new Adams Chair for Internet Rights. The donation is being held in an endowment to permanently fund a position on EFF's legal team.
EFF Senior Staff Attorney Lee Tien has been selected to be the first Adams Chair. Since joining EFF nearly 15 years ago, Tien has fought to preserve our freedom to speak, read, associate, and innovate without fear of surveillance, and for the right to develop and use technology that enhances digital civil liberties. Tien has been a key member of EFF's legal team challenging the NSA's massive expansion into domestic spying, including Hepting v. AT&T—the first major lawsuit about illegal collection of phone records data from millions of ordinary Americans, originally filed in 2006.
"EFF is grateful for the support of the Adams Charitable Foundation," said EFF Executive Director Shari Steele. "The Adams Chair for Internet Rights will provide support for EFF's legal work for years to come."
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Longtime Digital Rights Champion to Liberate Users from Digital Locks that Restrict Our Tech
San Francisco - Leading digital rights champion and author Cory Doctorow has rejoined the Electronic Frontier Foundation (EFF) to battle the pervasive use of dangerous digital rights management (DRM) technologies that threaten users' security and privacy, distort markets, confiscate public rights, and undermine innovation.
Doctorow will be a special consultant to the Apollo 1201 Project, a mission to eradicate DRM in our lifetime. Apollo 1201 will challenge the use of DRM as well as the legal structures that support it.
"Apollo was a decade-long plan to do something widely viewed as impossible: go to the moon. Lots of folks think it's impossible to get rid of DRM. But it needs to be done," said Doctorow. "Unless we can be sure that our computers do what we tell them, and don't have sneaky programs designed to take orders from some distant corporation, we can never trust them. It's the difference between 'Yes, master' and 'I CAN'T LET YOU DO THAT DAVE.'"
Working in the United States and across the globe, Doctorow will accelerate the movement to repeal laws protecting DRM, assist EFF with DRM-related litigation, and work with industry to kick-start a vibrant market in viable, legal alternatives to digital locks.
For many years, EFF has fought the use of DRM technologies, explaining that such technologies—as well as the laws that support them—impede innovation, security, and basic user rights and expectations, while failing to inhibit copyright infringement. One example of this lose-lose proposition is Section 1201 of the Digital Millennium Copyright Act (DMCA), which generally prohibits unlocking "access controls" like DRM. That ban was meant to deter illegal copying of software, but many companies have misused the law to chill competition, free speech, and fair use. Software is in all kinds of devices, from cars to coffee-makers to alarm clocks. If that software is locked down by DRM, tinkering, repairing, and re-using those devices can lead to legal risk.
Section 1201 has also put a dangerous chill on security researchers, who face potential legal penalties for finding and disclosing critical flaws in systems—from smartphones to home automation. As a result, the public gets to find out about compromising vulnerabilities too late, or not at all.
"We've seen DRM misused again and again, whether it's to thwart competition in printer-ink cartridges, to prevent videogame fans from modifying their consoles, or to block consumers from reading the parts' specifications on their own cars," said EFF Intellectual Property Director Corynne McSherry. "Cory has an unparalleled ability to show the public how bad copyright policy tramples on everyone's rights."
Doctorow worked for EFF for four years as its European Affairs Coordinator, and in 2007, he won EFF's Pioneer Award for his body of work on digital civil liberties. He's the originator of "Doctorow's Law," which has helped many around the world understand the dangers of DRM: "Anytime someone puts a lock on something you own, against your wishes, and doesn't give you the key, they're not doing it for your benefit."
"No matter how noble your cause, you can't advance it by insisting that computers everywhere be equipped with spyware to stop people from running the 'wrong' code," said Doctorow. "The bad guys will still figure out how to run that code, and everyone else will end up with critical infrastructure that, by design, treats them as untrustable attackers and, by design, lets remote parties covertly seize control of the computers around them. We all deserve a better future—one without DRM."
For more on DRM:
https://www.eff.org/issues/drm
Contacts:
Cory Doctorow
Special Consultant, Apollo 1201 Project
Electronic Frontier Foundation
cory@eff.org
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
eff.org/nsa-spying
