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### EFF Quashes Patent Troll’s Subpoena for Donor Records, Collects 5,000 Signatures in Support of Patent Reform
[San Francisco - Electronic Frontier Foundation (EFF) Staff Attorney ](https://www.eff.org/files/styles/medium/public/2014/03/10/daniel_nazer_-_color_large.jpg?itok=Ywzyre8Z) [Daniel Nazer](https://www.eff.org/about/staff/daniel-nazer)has become the new "Mark Cuban Chair to Eliminate Stupid Patents." Nazer succeeds former Senior Staff Attorney Julie Samuels and will lead EFF's campaign to reform the patent system and smash patent trolls. Samuels has left EFF to become the new executive director of [Engine Advocacy](http://engine.is/), one of EFF's key partners in defending innovation in the start-up sector.
Entrepreneur and Dallas Mavericks owner Mark Cuban
[funded](https://www.eff.org/press/releases/eff-patent-project-gets-half-million-dollar-boost-mark-cuban-and-notch) the title and Nazer's position with a $250,000 donation in 2012. Together, Nazer and Samuels, along with the other members of EFF's Intellectual Property team, have worked tirelessly to reform the patent system on multiple fronts, including in the courts, in Congress, at the White House, and before the US Patent and Trademark Office. On Wednesday, Nazer scored a [victory](https://www.eff.org/deeplinks/2014/01/eff-fights-patent-troll-demand-eff-podcast-donor-information) against Personal Audio when a judge agreed to quash the notorious patent troll's subpoena for the names of donors who supported EFF's Save Podcasting campaign.
"This is an exciting time to be working on patent reform," said Nazer, who practiced law at Keker & Van Nest LLP before joining EFF at the start of 2013. "The next few months could see new legislation, important Supreme Court decisions, and action from the president. We need to make sure we get real reform that stops the flood of abusive patent troll litigation. I look forward to building on Julie Samuel's success as the Mark Cuban Chair to Eliminate Stupid Patents."
One of the first items of business will be to push Congress to pass meaningful reform. With the Innovation Act overwhelmingly passing in the House (by a vote of 325 to 91), it is now the Senate's turn. Over 5,000 inventors, entrepreneurs, investors, and concerned citizens have signed
[EFF's letter](https://www.eff.org/deeplinks/2014/03/thousands-urge-senate-pass-quality-patent-reform) urging the Senate to act. EFF will continue to develop [TrollingEffects.org](http://trollingeffects.org/), an online clearinghouse of crowd-sourced intelligence on patent trolls launched last year in collaboration with a coalition of organizations and law schools.
"Daniel has been an invaluable colleague, and I know he will head up EFF's patent work with dedication and success," Samuels said. "I look forward to continuing to collaborate with him, and the entire EFF patent team, as we all work toward fixing a broken patent system."
For a high resolution image of Daniel Nazer with formal bio:
[https://www.eff.org/about/staff/daniel-nazer](https://www.eff.org/about/staff/daniel-nazer)
### Contact:
Daniel Nazer
Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
daniel@eff.org
### Legal Briefings Still Under Seal After Government Demands for Secrecy
San Francisco - The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals. The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security.
While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.
“The NSL statute allows the FBI to demand potentially protected information without any court oversight,” EFF Senior Staff Attorney Matt Zimmerman said. “Furthermore, it permits the FBI to independently gag recipients so that NSL recipients like our clients have no ability to notify their customers or the public that any demands were made, let alone that they went to court to stop them. Our clients strongly desire to bring their unique perspectives to the ongoing national discussion on intrusive government spying, and they have timely and relevant information to contribute to that debate. However, the FBI’s unconstitutional NSL authority prevents these companies from exercising their rights and taking part in this critically important conversation.”
In
[March 2013](https://www.eff.org/deeplinks/2013/03/depth-judge-illstons-remarkable-order-striking-down-nsl-statute) a federal district court judge in San Francisco agreed with EFF and ruled the NSL provisions unconstitutional, barring future NSLs and accompanying gag orders. That ruling was stayed pending appeal, however, and the district court has subsequently enforced separate NSLs—including NSLs issued to both EFF clients—and indicates that it will continue to do so until the Ninth Circuit rules on EFF’s challenges.
“The fight over NSLs and the government’s dangerous practice of bypassing meaningful review by the judicial branch is not an academic one—real people and real companies are involved, battling for their constitutional rights and the rights of their users,” Zimmerman said. “The district court was right: the First Amendment prevents the FBI from engaging in such invasive, secretive, and unaccountable activities. We are eager to explain to the Court of Appeals why it should come to the same conclusion.”
EFF also recently re-launched its Frequently Asked Questions page on National Security Letters. Read it at:
[https://www.eff.org/issues/national-security-letters-faq](https://www.eff.org/issues/national-security-letters-faq)
For more on the National Security Letter cases:
[https://www.eff.org/cases/re-matter-2011-national-security-letter](https://www.eff.org/cases/re-matter-2011-national-security-letter)
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
[mattz@eff.org](mailto:mattz@eff.org)
### Two Big Cases Could Protect Software Innovators – and Their Customers – From Patent Lawsuits
San Francisco - The Electronic Frontier Foundation (EFF) urged the U.S. Supreme Court to crack down on patent trolls and the schemes they use to perpetuate their lawsuits in two amicus briefs filed today.
"Patent trolls and their payoff demands depend on a flawed U.S. patent system," said EFF Senior Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "The cases the Supreme Court is tackling this term are prime examples of patent lawsuits gone awry. We're asking the justices today to enforce the law and protect new businesses, new gadgets, and the customers who use these products and services by providing clear rules that crack down on patent trolls."
In Nautilus v. Biosig Instruments, the Supreme Court could curtail vague and ambiguous patents that are currently allowed by the Federal Circuit. Under that standard, patent claims can stand even if "reasonable people can disagree" over the patent's meaning, and no matter "however difficult that task may be" to understand it. This has sparked a rash of vague patents, and EFF asked justices in today's brief to restore the Patent Act's requirement that patent claims be clear.
"Vague patents are extraordinarily prevalent in software, and they are a favorite tool of patent trolls," said EFF Staff Attorney Daniel Nazer. "If you can cleverly craft an ambiguous patent, you can stretch the claims later to cover all sorts of things you hadn't thought of at the time. Clarifying the law here and requiring definite claims is a straightforward, substantial way to improve patent quality and reduce shake-down patent litigation."
Limelight Networks v. Akamai Technologies involves a patent question over Limelight's content-distribution network, which allows for server-side storage of web content. Limelight's customers perform one of the steps of the patent at issue – tagging the remote content – but Akamai wants to enforce its patent anyway. In the brief filed today, EFF argues that Akamai's legal strategy could create a new category of patent defendants: end-users who unknowingly performed one of the steps.
"Imagine what would happen if using a piece of software or other service sold to you legally could result in a major patent infringement case," said Samuels. "Luckily, courts thus far have instituted a common-sense rule protecting end-users and consumers, and we're hopeful the Supreme Court will keep up this trend."
So far this term, EFF has filed four amicus briefs with the Supreme Court on patent and patent troll issues. Last week, EFF urged the court to rein in overbroad patents that are impermissibly abstract in Alice Corp. v. CLS Bank. In December, EFF filed a brief in Octane Fitness, LLC v. Icon Health & Fitness, Inc., urging the court to make it easier for prevailing defendants to get attorney's fees in patent cases.
For the full brief in Nautilus v. Biosig:
[https://www.eff.org/document/nautilus-v-biosig-amicus-supreme-court](https://www.eff.org/document/nautilus-v-biosig-amicus-supreme-court)
For the full brief in Limelight v. Akamai:
[https://www.eff.org/document/limelight-v-akamai-amicus-supreme-court](https://www.eff.org/document/limelight-v-akamai-amicus-supreme-court)
Contacts:
Julie Samuels
Senior Staff Attorney
The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
julie@eff.org
Daniel Nazer
Staff Attorney
Electronic Frontier Foundation
daniel@eff.org
### ‘Abstract Ideas’ Patents Hurt Technology Industry
San Francisco - The Electronic Frontier Foundation (EFF) along with Professor Pamela Samuelson of the University of California, Berkeley, urged the U.S. Supreme Court today to clean up the legal mess that is software patent law, reining in overbroad patents that are impermissibly abstract.
In front of the court is Alice Corp. v. CLS Bank, a long running case about a computer system that helps with closing financial transactions by avoiding settlement risk. In its amicus brief filed today, EFF argues that allowing a patent on this system goes against previous Supreme Court rulings that ideas like these are "abstract" and aren't legally patentable.
"It wouldn't make sense to patent simple ideas like ways of running a business or prioritizing a to-do list," said EFF Senior Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "That's basically what's under consideration here, with the small addition of a step that essentially implements it on a computer. Of course, since basically everything we do today is on the computer, letting patents like this exist shuts down entire business models."
The data on the U.S. technology industry bear this out. Since software patents have boomed, we've seen no corresponding boom in software growth and innovation; to the contrary, that growth maintained the steady pace that existed long before the advent of software patents. Instead, along with software patents, we've seen the rise of patent trolls – companies that don't make or sell anything, but shake down true creators through the loopholes in the law.
"In this case, the Supreme Court has the opportunity to implement a sensible system, limiting these broad and vague claims that do nothing besides fuel lawsuits," said Samuels. "A clear ruling here would limit one of the patent troll's favorite weapons—broad and vague software patents—and keep our innovation economy safe."
For the full amicus brief:
[https://www.eff.org/document/amicus-brief-supreme-court-alice-v-cls-bank](https://www.eff.org/document/amicus-brief-supreme-court-alice-v-cls-bank)
For more on abstract software patents:
[https://www.eff.org/cases/abstract-patent-litigation](https://www.eff.org/cases/abstract-patent-litigation)
Contact:
Julie Samuels
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
julie@eff.org
### Liberation Music Will Fix Its Copyright Policies and Pay Compensation
San Francisco - Prof. Lawrence Lessig has settled his lawsuit against an Australian record label over the use of clips of a popular song by the band Phoenix in a lecture that was later posted online. Liberation Music, which represents Phoenix in New Zealand, claimed the clips infringed copyright, demanded YouTube take down the lecture, and then threatened to sue Lessig. Represented by the Electronic Frontier Foundation (EFF) and Jones Day, Lessig fought back, asserting his fair use rights in court.
"Too often, copyright is used as an excuse to silence legitimate speech," said Lessig, who serves as the Roy L. Furman Professor of Law and Leadership at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University. "I've been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences."
The settlement requires Liberation Music to pay Lessig for the harm it caused. The amount is confidential under the terms of the settlement, but it will be dedicated to supporting EFF's work on open access, a cause of special importance to Lessig's friend, Aaron Swartz, a technologist and activist who took his own life in early 2013. The parties also worked together to improve Liberation Music's methodology for compliance with the requirements of the DMCA in the United States. Going forward, Liberation Music will adopt new policies that respect fair use.
Neither party concedes the claims or defenses of the other. Liberation Music included this statement in the settlement agreement:
"Liberation Music is pleased to amicably resolve its dispute with Professor Lessig. Liberation Music agrees that Professor Lessig's use of the Phoenix song 'Lisztomania' was both fair use under US law and fair dealing under Australian law. Liberation Music will amend its copyright and YouTube policy to ensure that mistakes like this will not happen again. Liberation Music is committed to a new copyright policy that protects its valid copyright interests and respects fair use and dealing."
A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.
As a condition of the settlement, Liberation Music submitted a declaration explaining its takedown procedures. Liberation Music had allowed a single employee to use YouTube's automatic Content ID system to initiate the takedown process and then, when Lessig challenged the takedown, threaten a lawsuit. The employee, who did not have a legal background, did not actually review Lessig's video before issuing a threat of a lawsuit.
Liberation Music's new policy will still rely on YouTube's system, but it will ensure that no takedown notice is issued without human review, including fair use considerations. Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright.
"This is the policy Liberation Music should have had from the beginning," EFF Intellectual Property Director Corynne McSherry said. "Too many content owners are issuing takedowns and manipulating content filters without respect for the rights of users. This fight may be over, but the battle continues until every content owner embraces best practices that protect fair use."
For more on this case:
[ https://www.eff.org/cases/lawrence-lessig-v-liberation-music](//www.eff.org/cases/lawrence-lessig-v-liberation-music)
About Prof. Lessig:
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including The USA is Lesterland, Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.
Contact:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
### Months of Electronic Espionage Put American Citizen and Family at Risk
Washington, D.C. - An American citizen living in Maryland sued the Ethiopian government today for infecting his computer with secret spyware, wiretapping his private Skype calls, and monitoring his entire family's every use of the computer for a period of months. The Electronic Frontier Foundation (EFF) is representing the plaintiff in this case, who has asked the court to allow him to use the pseudonym Mr. Kidane – which he uses within the Ethiopian community – in order to protect the safety and wellbeing of his family both in the United States and in Ethiopia.
"We have clear evidence of a foreign government secretly infiltrating an American's computer in America, listening to his calls, and obtaining access to a wide swath of his private life," said EFF Staff Attorney Nate Cardozo. "The current Ethiopian government has a well-documented history of human rights violations against anyone it sees as political opponents. Here, it wiretapped a United States citizen on United States soil in an apparent attempt to obtain information about members of the Ethiopian diaspora who have been critical of their former government. U.S. laws protect Americans from this type of unauthorized electronic spying, regardless of who is responsible."
A forensic examination of Mr. Kidane's computer showed that the device had been infected when he opened a Microsoft Word document that contained hidden malware. The document had been an attachment to an email message sent by agents of the Ethiopian government and forwarded to Mr. Kidane. The spyware contained in the attachment was a program called FinSpy, a suite of surveillance software marketed exclusively to governments by the Gamma Group of Companies. In the several months FinSpy was on Mr. Kidane's computer, it recorded a vast array of activities conducted by users of the machine. Traces of the spyware inadvertently left on his computer show that information – including recordings of dozens of Skype phone calls – was surreptitiously sent to a secret control server located in Ethiopia and controlled by the Ethiopian government.
The infection appears to be part of a systematic program by the Ethiopian government to spy on perceived political opponents in the Ethiopian diaspora around the world. Reports from human rights agencies and news outlets have detailed Ethiopia's campaign of international espionage, aimed at jailing opposition and undermining dissent. But Ethiopia is not alone. CitizenLab – a group of researchers based at the University of Toronto, Canada – has found evidence that governments around the world use FinSpy and other technologies to spy on human rights and democracy advocates across the globe.
"The problem of governments violating the privacy of their political opponents through digital surveillance is not isolated – it's already big and growing bigger," said EFF Legal Director Cindy Cohn. "Yet despite the international intrigue and genuine danger involved in this lawsuit, at bottom it's a straightforward case. An American citizen was wiretapped at his home in Maryland, and he's asking for his day in court under longstanding American laws."
In the complaint filed in U.S. District Court in Washington, D.C., today, Mr. Kidane asks for a jury trial as well as damages for violations of the U.S. Wiretap Act and state privacy law. The Ethiopian Embassy in Washington received a courtesy copy of the lawsuit, and the District Court will formally serve the Ethiopian Foreign Ministry in Addis Ababa with copies of the papers in both English and Amharic.
Richard M. Martinez, Mahesha P. Subbaraman, and Samuel L. Walling of Robins, Kaplan, Miller & Ciresi L.L.P. are assisting EFF as co-counsel on this case.
For the full complaint in Kidane v. Ethiopia:
[https://www.eff.org/document/complaint-32](https://www.eff.org/document/complaint-32)
For more on this case:
[https://www.eff.org/cases/kidane-v-ethiopia](https://www.eff.org/cases/kidane-v-ethiopia)
Contacts:
Nate Cardozo
Staff Attorney
Electronic Frontier Foundation
nate@eff.org
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
### Senior Staff Technologist Seth Schoen Will Speak at Wednesday Conference
Washington, D.C. - Electronic Frontier Foundation (EFF) Senior Staff Technologist Seth Schoen will warn attendees at a Federal Trade Commission (FTC) conference Wednesday that most people don't realize the current extent of mobile device tracking and just how sensitive cell phone location data can be. The conference is set for 10 a.m. on Wednesday, February 17 at the FTC Conference Center.
"The ability for marketers and others to recognize where a particular device is located is actually an unintended consequence of technologies like wifi," said Schoen. "It's not a designed-in feature – it's something that people are taking advantage of, and it should be viewed as a security problem and fixed."
WHAT:
FTC Spring Privacy Series: Mobile Device Tracking
WHEN:
Wednesday, February 17
10 a.m.
WHERE:
FTC Conference Center
601 New Jersey Avenue, NW
Washington, D.C. 20001
WHO:
Senior Staff Technologist Seth Schoen
Electronic Frontier Foundation
For the full FTC announcement:
[ http://www.ftc.gov/news-events/events-calendar/2014/02/spring-privacy-series-mobile-device-tracking](//www.ftc.gov/news-events/events-calendar/2014/02/spring-privacy-series-mobile-device-tracking)
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
### Use of Campaign Photo on Political Blog Is Clearly 'Fair Use'
San Francisco - The Electronic Frontier Foundation (EFF) is urging a federal court to dismiss a politically motivated copyright lawsuit.
The case started in April, when California Republican Party Vice Chairman Harmeet K. Dhillon sued an anonymous blogger over the use of a five-year-old campaign photo in a critical post on "The Munger Games" website – a site dedicated to criticism of donor and current chairman of the Santa Clara County Republican Party of Silicon Valley, Charles Munger, Jr. However, the use of the photo is clearly allowed under the "fair use doctrine," which ensures that copyrighted works can be used by others for purposes including criticism and commentary.
"The fair use doctrine protects what Jon Stewart and Steven Colbert do with copyrighted material every night – they use it to illustrate, explain, and amuse. Fair use is a basic building block for free speech, and the Munger Games blogger has as much right to fair use as a TV star," said EFF Intellectual Property Director Corynne McSherry. "This lawsuit is not about copyright infringement but simply a bald attempt to intimidate a political blogger, and the court should shut it down now."
In its amicus brief filed Friday, EFF asked the judge to end this case quickly and decisively, as allowing the lawsuit to proceed would discourage other bloggers from exercising their First Amendment rights to criticize political figures.
"Protection for political criticism and commentary lies at the heart of the First Amendment," said EFF Senior Staff Attorney Matt Zimmerman. "Courts should be highly skeptical of attempts to punish speakers engaged in this kind of political speech. While the blogger in this case is fighting back, copyright lawsuits are expensive and others may be intimidated from speaking in the future. EFF urges the court to dismiss this meritless suit as soon as possible."
For the full amicus brief in Dhillon v. Doe:
[https://www.eff.org/document/amicus-brief-19 ](https://www.eff.org/document/amicus-brief-19%20)
### Contacts:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
[mattz@eff.org](mailto:mattz@eff.org)
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
[corynne@eff.org](mailto:corynne@eff.org)
### Latest Filing in Jewel v. NSA Demands Documents Government Is Trying to Conceal
San Francisco - The Electronic Frontier Foundation (EFF) asked a federal court on Friday to order the Department of Justice (DOJ) to release more thorough information about the dragnet electronic surveillance being conducted by the National Security Agency (NSA). The filing in EFF's long-standing case,
[Jewel v. NSA](https://www.eff.org/cases/jewel), also argues that the DOJ must stop pretending that information revealed and publicly acknowledged about government surveillance over the last seven months is still secret.
"The government has now publicly admitted much about its mass spying, but its filings before the court still try to claim broad secrecy about some of those same admissions," EFF Legal Director Cindy Cohn said. "It's long past time for the Department of Justice to stop using overblown secrecy claims to try to prevent an open, adversarial court from deciding whether the NSA's spying is constitutional."
Since the Jewel case was first filed in 2008, the government has used claims of state secrets to fight court review. Last year, documents revealed by former NSA contractor Edward Snowden confirmed many of the case's allegations. As a result of the Snowden disclosures, Judge Jeffrey White of the U.S. District Court for the Northern District of California ordered the government to review all of its filings and release everything that was no longer secret. The court also ordered the government to explain the effects of the disclosures on the case. The DOJ filed its response on December 20, releasing eight, still-heavily redacted, declarations. The government also submitted new declarations, but those declarations largely ignored, and failed to explain the impact of, the flood of new information concerning the NSA's surveillance operations revealed through the press, congressional hearings, or the administration's website icontherecord.tumblr.com.
In our response, EFF argues that the DOJ did not comply with the judge's order and that the agency's submissions fell far short of an accurate and comprehensive presentation of the facts—especially with regard to the "upstream" program where the NSA accesses communications as they flow across the Internet backbone, the participation of AT&T in NSA surveillance, and the lack of demonstrated effectiveness of the bulk collection programs.
"The court ordered the government to review for release all previously secret filings in this case, yet there are still secret documents in the record," EFF Staff Attorney Mark Rumold said. "We at least deserve an explanation for why we can't have access to those documents. Our plaintiffs, as well as the general public, have a right to know what the government has been telling the court in secret."
For the filing:
[https://www.eff.org/document/plaintiffs-response-defendants-public-declarations](https://www.eff.org/document/plaintiffs-response-defendants-public-declarations)
For the accompanying declaration:
[https://www.eff.org/document/rumold-declaration-all-exhibits-iso-plaintiffs-response-defendants-public-declarations](https://www.eff.org/document/rumold-declaration-all-exhibits-iso-plaintiffs-response-defendants-public-declarations)
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Mark Rumold
Staff Attorney
Electronic Frontier Foundation
mark@eff.org
### People+ Can Continue to Use CC Licensed Material And CrunchBase Improves Its Legal Terms
San Francisco - Mobile app startup People+ and free technology-industry database CrunchBase have settled their dispute over data collected under the Creative Commons Attribution License, allowing both companies to continue their work.
The Electronic Frontier Foundation (EFF) represents People+, a company making apps for iOS and Google Glass. In its iOS app, People+ used materials from the free CrunchBase database, which includes information on technology companies, people, and investors. The CrunchBase database was licensed under a Creative Commons Attribution License, allowing anyone to use the data as long as the author receives credit. However, CrunchBase also claimed the right to shut down some uses of their materials – a position at odds with the Creative Commons license – and CrunchBase demanded that People+ stop using the data.
Fortunately, the norms and values of the open content community were a roadmap to resolving the argument. After discussions among CrunchBase, People+, and EFF, People+ will continue to use the material it has gathered under the Creative Commons Attribution License. Going forward, CrunchBase has revised its terms of service and now licenses its content under the Creative Commons Attribution-NonCommercial license, which will require a separate license for commercial uses.
"Offering content under the most permissive CC license while claiming the right to shut down uses they didn't like was a bit misleading," said EFF Staff Attorney Mitch Stoltz. "CrunchBase's new terms of service are clearer and more in line with the best practices of the open content community. The new terms should allow developers to re-use and build on the CrunchBase dataset with greater confidence."
"We are thrilled with the outcome and are looking forward to continue growing the app and the company far beyond this controversy," said Peter Berger, People+ co-founder and CEO.
Creative Commons is a suite of standardized licenses for creative work, providing a simple way for authors and artists to keep "some rights reserved" – like the right to receive credit and the right to prevent commercial uses – while allowing their work to spread freely on the Internet and be re-used by others without the threat of legal trouble.
"We are grateful to the Electronic Frontier Foundation for playing an instrumental role in updating the CrunchBase Terms of Service," said CrunchBase President Matt Kaufman. "At their suggestion, we adopted Creative Commons 4.0 and open content best practices. These updates provide more clarity to our community and provide a stronger foundation from which to build and extend the CrunchBase dataset."
"We are very pleased we could work with People+ and CrunchBase to resolve this issue," said EFF Senior Staff Attorney Kurt Opsahl. "Creative Commons licensing is a mainstay of creativity and collaboration in the digital age, and having the system work smoothly is to everyone's benefit."
Contacts:
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
### Petition Urges Support for 13 International “Necessary and Proportionate” Principles
San Francisco - An international coalition of human rights and privacy organizations today launched an action center to oppose mass surveillance on the global stage:
[necessaryandproportionate.org/take-action](https://necessaryandproportionate.org/take-action/eff). The new petition site went live just as the United Nations voted on a resolution to recognize the need for the international community to come to terms with new digital surveillance techniques.
The Electronic Frontier Foundation (EFF), along with Access and Privacy International, took a leadership role in developing the campaign. The new action center allows individuals from around the world to sign their names to a petition in support of the "
[International Principles on the Application of Human Rights to Communications Surveillance](https://en.necessaryandproportionate.org/TEXT)." Also known as the "Necessary and Proportionate Principles," the document outlines 13 policies that governments must follow to protect human rights in an age of digital surveillance—including acknowledgement that communications surveillance threatens free speech and privacy and should only be carried out in exceptional cases and under the rule of law.
Once the signatures are collected, the organizations will deliver the petition to the UN, world leaders and global policymakers. Over 300 organizations, plus many individual experts, have already signed the petition.
"Surveillance can and does threaten human rights, " EFF International Rights Director Katitza Rodriguez said. "Even laws intended to protect national security or combat crime will inevitably lead to abuse if left unchecked and kept secret. The Necessary and Proportionate Principles set the groundwork for applying human rights values to digital surveillance techniques through transparency, rigorous oversight and privacy protections that transcend borders."
Today, the UN Third Committee unanimously adopted
[Resolution A/C.3/68/L.45](http://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/68/L.45/Rev.1), "The Right to Privacy in the Digital Age." Sponsored by 47 nations, the non-binding resolution recognizes the importance of privacy and free expression and how these core principles of democracy may be threatened when governments exploit new communications technologies.
"While not as strong as the
[original draft resolution](https://www.eff.org/deeplinks/2013/11/brazil-and-germany-propose-un-resolution-condemning-global-threat-mass), the United Nations resolution is a meaningful and very positive step for the privacy rights of individuals, no matter what country they call home," Rodriguez said. "We will be watching to see if countries such as China, Russia or even the US use the resolution to legitimize their mass surveillance programs. That is why it's important for nations to go further and comply with the Necessary and Proportionate principles."
The organizations behind the Action Center include Access, Chaos Computer Club, Center for Internet & Society-India, Center for Technology and Society at Fundação Getulio Vargas, Digitale Gesellschaft, Digital Courage, EFF, OpenMedia.ca, Open Rights Group, Fundacion Karisma, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, SHARE Foundation, and Privacy International.
EFF's web development team designed the action center using the same activism platform the organization has successfully deployed in campaigns on the state and federal level in the US, this time adapting it to the scale of an international movement.
For more information on the petition and principles, read Rodriguez's
[blog post](//www.eff.org/deeplinks/2013/11/demand-end-mass-surveillance-support-peoples-principles).
### Contact:
Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation
[katitza (at) eff.org](mailto:katitza@eff.org)
### DC Appeals Court to Hear FOIA Lawsuit Against the Department of Justice
Washington, DC - Lawyers from the Electronic Frontier Foundation (EFF) will appear before the US Court of Appeals for the District of Columbia Circuit on Tuesday morning to argue for the release of a secret legal opinion on the federal government’s surveillance authority. For nearly three years, EFF has sought, under the Freedom of Information Act (FOIA), the disclosure of a document produced by the Office of Legal Counsel (OLC) that the FBI claims provides it with the authority to obtain private call-detail records in "certain circumstances," without any legal process or a qualifying emergency.
**Who:** EFF Staff Attorney Mark Rumold, who will be delivering the oral argument, and EFF Senior Counsel David Sobel
**What:** Oral argument in Electronic Frontier Foundation v. US Department of Justice (Case Number 12-5363)
**When:** 9:30 am (EST), Tuesday, Nov. 26, 2013
**Where:** Barrett Prettyman US Courthouse
333 Constitution Ave., NW Washington, DC 20001.
US Court of Appeals Courtroom - Judges Srinivasan, Edwards, & Sentelle
**Media Availability:** EFF attorneys will be available for comment immediately after the hearing at the courthouse.
In January 2010, the US Department of Justice's Office of the Inspector General released a report on the FBI's use of "exigent letters and other informal requests" to obtain telephone records from phone companies. The report described an OLC opinion that determined the federal government could obtain call records without legal process and without citing an emergency situation to justify the data collection. The OLC's determination appears to directly conflict with the Stored Communications Act, a federal privacy law that safeguards customer call records from disclosure to the government without valid legal process.
EFF submitted a FOIA request for the documents in February 2011, which the DOJ rejected. EFF filed its lawsuit in DC in May 2011 and appealed when the district court sided with government.
"The public has a fundamental right to know how the federal government is interpreting federal surveillance and privacy laws," Staff Attorney Mark Rumold said. "These interpretations affect wide swaths of society—the public, communications providers, and federal agencies—and the government cannot be allowed to shield its interpretations of law from public scrutiny. Secret surveillance law simply has no place in a democratic society."
### Contacts:
Mark Rumold
Staff Attorney
Electronic Frontier Foundation
[mark@eff.org](mailto:mark@eff.org)
David Sobel
Senior Counsel
Electronic Frontier Foundation
[sobel@eff.org](mailto:sobel@eff.org)
### EFF: Appeals Court Must Uphold Immunity for Websites That Host Third-Party Content
Cincinatti, Ohio - The Electronic Frontier Foundation (EFF) and a coalition of free speech advocates filed an amicus brief supporting thedirty.com's appeal of a defamation ruling that contradicts protections for website operators contained in Section 230 of the Communications Decency Act (CDA). In the brief, filed in the US Court of Appeals for the Sixth Circuit on Tuesday, the coalition argues that websites—even those that host offensive gossip—cannot be held liable for information posted by third parties.
The case centers around a 2009 message that a visitor posted to thedirty.com alleging that a teacher and a cheerleader for the Cincinnati Bengals had "slept with every" player on the football team. The subject of the post, Sarah Jones, then sued the site's operator, Dirty World LLC, and its editor and publisher, Nik Richie. A district court denied thedirty.com's claim of immunity under the CDA on the basis that the site "encouraged" defamatory content from third parties. A jury subsequently awarded Jones $338,000.
The ruling, if upheld, would have serious ramifications for free speech on the Internet. Since the passage of the CDA in 1996, courts have consistently held that website operators may be held responsible for unlawful material posted by users only if those operators directly solicited or induced the content. In this case, the district court denied immunity to the website based on other factors such as the website's name and cultivation of a negative atmosphere. The court's holding could open the door to lawsuits against a wide array of websites that host critical speech, including sites that display consumer reviews or reports of malfeasance.
"In order for speech to be protected online, the platforms that carry speech need to be strongly and unquestionably protected," EFF Senior Staff Attorney Matt Zimmerman said. "Website operators should not and cannot lose legal immunity for being offensive. They can only be held liable if they engaged in actionable behavior themselves. Here, that did not happen."
In addition to EFF, four groups joined the friend-of-the-court brief: ACLU of Kentucky, Center for Democracy & Technology, Digital Media Law Project and Public Participation Project. Wendy Seltzer and Adam Holland of the Berkman Center for Internet & Society at Harvard University and the Chilling Effects Clearinghouse also signed onto the brief.
"Section 230 gives website operators the certainty that they can offer platforms for user speech without the risk of spending every day litigating over comment sections," ACLU Staff Attorney Lee Rowland said. "The trial court's incorrect decision risks eroding that certainty."
For the full amicus brief:
[https://www.eff.org/document/amicus-brief-sarah-jones-v-dirty-world](https://www.eff.org/document/amicus-brief-sarah-jones-v-dirty-world)
### Contacts:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
[mattz@eff.org](mailto:mattz@eff.org)
### Inventors Listed on Nearly 200 Patents Call on Congress to Pass Legislation to Fix the Patent Troll Problem
*Update: The initial letter incorrectly listed Dan Lang of Cisco as a signatory. Lang did not sign on. The initial letter has also been updated to include Pokeware founder Maryse Thomas.*
San Francisco - Fifty inventors, technologists and entrepreneurs joined Engine Advocacy and the Electronic Frontier Foundation (EFF) today in requesting that Congress immediately pass meaningful patent reform legislation to curb the growing patent troll problem.
The signatories are collectively listed as inventors on nearly 200 patents, many of which cover software inventions. They expressed support for patent reform. Congress is currently pursuing several approaches that have the potential to curb the chilling effect on innovation posed by trolls and improve patent quality.
"Broad, vague patents covering software-type inventions—some of which we ourselves are listed as inventors on—are a malfunctioning component of America's inventive machinery," the inventors write. "This is particularly the case when those patents end up in the hands of non-practicing patent trolls." The inventors believe that "software patents are doing more harm than good," and they urge Congress to pass legislation that would curb patent troll abuses, which pose an immediate threat to innovation and the promise of technology.
"It's time to force these trolls to take responsibility for the damage they cause with their dangerous claims," said inventor Derek Parham, who helped organize the letter. "We need legislation that will put a stop to the patent troll business model once and for all."
In addition to Parham, many prominent engineers and entrepreneurs signed the letter, including Twitter co-founder Evan Williams; Facebook co-founder Dustin Moskovitz; former Principal Engineer at Qualcomm Ranganathan Krishnan; and Quantcast's co-founder Paul Sutter.
"The time for meaningful reform is now," said Julie Samuels, EFF Senior Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents. "We hope Congress will hear these engineers and inventors and so many others and pass legislation that ends the patent troll problem once and for all."
For the full open letter:
[https://www.eff.org/document/inventorslettersupportpatentreform](https://www.eff.org/document/inventorslettersupportpatentreform)
### Contacts:
Julie Samuels
Senior Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
[julie@eff.org](mailto:julie@eff.org)
Eva Arevuo
Engine
[eva@engine.is](mailto:eva@engine.is)
### NY Attorney General Subpoena Amounts to Unlawful “Fishing Expedition”
Albany, NY - The Electronic Frontier Foundation (EFF) and the Center for Democracy & Technology (CDT) have filed a friend-of-the-court brief supporting Airbnb's petition to set aside a sweeping New York State Attorney General subpoena that demands information about virtually all Airbnb users who make real estate available for rent in the state. In the brief filed Friday, EFF and CDT highlight both the overreaching nature of the subpoena as well as the critical need for courts to carefully review government efforts to indiscriminately sweep up information about large numbers of Internet users.
In October, NY State Attorney General Eric Schneiderman issued a sweeping subpoena seeking identification, financial, and other information on effectively all New York Airbnb "Hosts," those users offering living space for rent. The attorney general explained in later legal filings that he was seeking such information because he believed that some of Airbnb's Hosts had violated state occupancy and tax laws. However, the subpoena sought information about all Hosts that offered accommodations in New York from 2010 to the present, making no effort to exclude those users who plainly fell outside the laws at issue.
"Indiscriminate subpoenas that seek the identity and other personal information of thousands of Internet users without specific justification are improper and should be quashed," EFF Senior Staff Attorney Matt Zimmerman said. "It is not enough for the state to speculate that some Airbnb users might have broken some law at some unknown point. An online service's users deserve to be protected from fishing expeditions like this one."
In the brief, EFF and CDT discuss how broad subpoenas to Internet intermediaries such as Airbnb are particularly concerning as users whose information is sought ordinarily have little practical ability to challenge such subpoenas, even if they are unlawful. They further argue that, while Airbnb's efforts to block the subpoena are commendable in this instance, users should not have to rely on companies to defend against government overreach and courts should themselves play an active, skeptical role holding the government to task.
"Just because the technology collects the data and makes it easy to disclose doesn't mean the government is entitled to it all," said Gregory T. Nojeim, director of CDT's Project on Freedom, Security and Technology. "Whether it's a secret application from the NSA or a subpoena from a state official, courts need to reject or substantially narrow bulk data demands from government officials."
For more information, including original case documents, see
[https://www.eff.org/cases/airbnb-inc-v-eric-schneiderman](https://www.eff.org/cases/airbnb-inc-v-eric-schneiderman)
### Contacts:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
[mattz@eff.org](mailto:mattz@eff.org)
### About EFF:
The Electronic Frontier Foundation is the leading organization protecting civil liberties in the digital world. Founded in 1990, we defend free speech online, fight illegal surveillance, promote the rights of digital innovators, and work to ensure that the rights and freedoms we enjoy are enhanced, rather than eroded, as our use of technology grows. EFF is a member-supported organization.
### About Center for Democracy and Technology:
The Center for Democracy & Technology is a non-profit public interest organization working to keep the Internet open, innovative, and free. With expertise in law, technology, and policy, CDT seeks practical solutions to enhance free expression and privacy in communications technologies. CDT is dedicated to building consensus among all parties interested in the future of the Internet and other new communications media.
### Julie Samuels to Press for Relief for Patent Troll Victims
Washington, DC - Electronic Frontier Foundation (EFF) attorney Julie Samuels will testify on how patent trolls harm start-ups and consumers through deceptive demand letters and legal threats at a US Senate Committee on Commerce, Science, and Transportation hearing on Thursday, Nov. 7.
Samuels, who is the Mark Cuban Chair to Eliminate Stupid Patents, will address how patent trolls' tactics amount to a shakedown racket, causing billions of dollars of economic damage each year. The trolls, also known as "patent assertion entities," neither make nor sell anything, but threaten to sue unsuspecting businesses with vague and dubious patent claims. Samuels will argue that Congress should enact statutory protections for consumers who find themselves facing patent troll threats by regulating the demands those trolls make and increasing transparency around those demands.
**Who**: Julie Samuels, EFF Senior Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents
**What:** US Senate Committee on Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety, and Insurance hearing: "Demand Letters and Consumer Protection: Examining Deceptive Practices by Patent Assertion Entities"
**When:** 10:00 am EST, Thursday, Nov. 7
**Where:** Russell Senate Office Building, Room 253, Washington, DC
**Webcast:** [http://www.commerce.senate.gov](http://www.commerce.senate.gov)
EFF staff will provide live commentary on the hearing via Twitter. Follow @EFFLive or visit
[https://twitter.com/efflive](https://twitter.com/efflive).
For the official announcement from the Senate Commerce Committee:
[https://eff.org/r.5chx](https://eff.org/r.5chx)
### Advocacy Organizations Seek Immediate Court Ruling on the Legality of the NSA’s Mass Collection of Telephone Records
San Francisco - The Electronic Frontier Foundation (EFF) has provided a federal judge with testimony from 22 separate advocacy organizations detailing how the National Security Agency's (NSA) mass telephone records collection program has impeded the groups' work, discouraged their members and reduced the numbers of people seeking their help via hotlines. The declarations accompanied a motion for partial summary judgment filed late Wednesday, in which EFF asks the court to declare the surveillance illegal on two levels—the law does not authorize the program, and the Constitution forbids it.
In
[First Unitarian Church of Los Angeles v. NSA](https://www.eff.org/cases/first-unitarian-church-los-angeles-v-nsa), EFF represents a diverse array of environmentalists, gun-rights activists, religious groups, human-rights workers, drug-policy advocates and others that share one major commonality: they each depend on the First Amendment's guarantee of free association. EFF argues that if the government vacuums up the records of every phone call—who made the call, who received the call, when and how long the parties spoke—then people will be afraid to join or engage with organizations that may have dissenting views on political issues of the day. The US government acknowledged the existence of the telephone records collection program this summer, after whistleblower Edward Snowden leaked a copy of a Foreign Intelligence Surveillance Court order authorizing the mass collection of Verizon telephone records.
"The plaintiffs, like countless other associations across the country, have suffered real and concrete harm because they have lost the ability to assure their constituents that the fact of their telephone communications between them will be kept confidential from the federal government," EFF Senior Staff Attorney David Greene said. "This has caused constituents to reduce their calling. This is exactly the type of chilling effect on the freedom of association that the First Amendment forbids."
In Wednesday's motion, EFF asks the US District Court for the Northern District of California to review the undisputed evidence at hand and rule that the NSA's "Associational Tracking Program" is not only unconstitutional, but not authorized under Section 215 of the USA PATRIOT ACT, the law the government has so far used to justify its surveillance.
The statute authorizes the government to collect information only if the information "is relevant to an authorized investigation." Because the government collects the records of every telephone call made to, from and within the United States, the vast majority of the records it collects are plainly irrelevant.
"Section 215 is a simple statute designed to give the FBI something like the subpoena power available in criminal investigations," attorney Thomas Moore, an EFF special counsel, said. "It was not intended to authorize the dragnet surveillance the NSA has undertaken. A government of the people, by the people, and for the people should not be spying on the people."
The motion could be argued as early as February 2014.
For the motion for partial summary judgment:
[https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment-0](https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment-0)
For the declarations:
[https://www.eff.org/document/all-plaintiffs-declarations](https://www.eff.org/document/all-plaintiffs-declarations)
### Contact:
David Greene
Senior Staff Attorney
Electronic Frontier Foundation
davidg@eff.org
Selected declaration excerpts:
**Rev. Rick Hoyt, First Unitarian Church of Los Angeles:**
"The threat of exposure has caused potential visitors to stay away, and members to withdraw from the community, resulting in the church losing its voice and damaging our faith and our organization. Even more damaging is the effect on our neighbors, many of whom depend on the church for basic necessities such as our weekly food distribution, and life-enhancing programs such as exercise classes, and math tutoring for children. Our neighbors now fear that a simple contact with the church inquiring about a church program will bring scrutiny upon other aspects of their lives, or bring their persons to the attention of a government that they may have reason to fear."
**Gene Hoffman, Jr., CalGuns Foundations, Inc:**
"Many gun owners are distrustful of government or of having any record of their status as gun owners. At least one of our members is only known to us by his online alias and he would only directly contact us via telephone from a blocked number. He has not phoned since the disclosures that lead to this action.
"Many of our constituents have expressed concern about the confidentiality of the fact of their telephone communications with us. Those who do call now leave fewer details in their voicemails of the concern or issue they are calling about, forcing staff and volunteers to make additional contacts to the caller, or more quickly refer the caller to one of our outside attorneys. This creates more expense than if a non-attorney volunteer could have answered a question."
**Dinah PoKempner, Human Rights Watch:**
"We have experienced an increase in questions from our researchers, other staff, external partners and potential associates expressing concern about the confidentiality of the fact of their communications with HRW itself and among our staff and associates. While it is difficult to get precise information about communications that did not occur, based on the concerns raised by others, I believe that some individuals may have refrained from reporting human rights abuses to us and some partners may have refrained from contacting us due to their concerns about security and confidentiality."
**Jennifer Nimer, Council on American-Islamic Relations-Ohio (CAIR-Ohio)**
"Because many of the persons CAIR-OHIO represents are subject to tangible manifestations of federal government scrutiny, discretion and confidentiality in their communications and associations with us is of paramount importance to such persons. Knowing that the government is certainly logging communications such persons may have with CAIR-OHIO deters these persons form seeking our assistance.
"By virtue of this 'guilt by association' form of analysis, large swaths of the Ohio Muslim community may be subject to government scrutiny, simply by virtue of having contacted CAIR-OHIO and because of CAIR-OHIO's advocacy efforts on behalf of those wrongly accused. That is, is a CAIR—OHIO client accused or suspected by government of wrongdoing contacts us, all those who contact CAIR-OHIO – including our constituents and prospective clients – are accordingly put at risk of government scrutiny, solely through their shared association with CAIR-OHIO.
"When the very act of communicating by phone with those we aim to serve puts our constituents at risk for further government scrutiny, our organizational mission is essentially undermined."
**Heidi Boghosian, National Lawyers Guild:**
"Revelations of NSA surveillance in the press has caused NLG members working on litigation and advocacy to restrict discussion of legal strategy, case updates and confidential information to in-person meetings or to written correspondence sent by mail. Practical restraints on the frequency of these meetings results-in less robust information to pass between attorneys and has potentially hindered Guild members from providing as vigorous a legal representation as would have otherwise been possible with secure electronic communication channels."
**Dale Gieringer, California Chapter of National Organization for the Reform of Marijuana Laws (NORML):**
"California NORML experienced an abrupt drop in the number of hotline calls we received after revelation of NSA's phone surveillance program in late June. Prior to then, we received an average of about 15-20 calls daily on our hotline; afterwards, calls dropped to 5 -10 per day. This data supports our belief that the NSA program had a chilling effect on our constituents' willingness to communicate with us. Moreover, several of our members have expressed similar concerns in this regard."
**Rabbi Arthur Waskow, The Shalom Center:**
"I had trouble sleeping, delayed some essays and blogs I had been considering, and worried whether my actions might make trouble for nonpolitical relatives. I certainly felt a chill fall across my work of peaceable assembly, association, petition, and the free exercise of my religious convictions. Since as the Rabbinic Director of The Shalom Center I am the chief spokesperson for its religious outlook and religious work, this chilling effect has slowed down, inhibited, and distorted the expression of our religious concerns."
"For some policymakers, a change in their policy positions attributable to TechFreedom's advocacy may imply, accurately or not, an association or relationship that the policymaker might otherwise be unwilling to publicly acknowledge. This inhibition, in turn, hinders TechFreedom's ability to advocate effectively for its ideas.
"Similarly, our communications with journalists and foreign nationals is limited by the risk of disclosure. Knowing that the government will retain a record of all our communications, and the inevitable possibility of disclosure, will reduce the likelihood of such individuals working with TechFreedom on important Internet freedom issues, which are inherently trans-national and often require collaboration with foreign civil society groups and policymakers."
**Dr. Deborah C. Peel, Patient Privacy Rights:**
"The Associational Tracking Program activities have harmed PPR because we have experienced a decrease in communications from whistleblowers, members and users who would have requested that their communications with Plaintiff remain secret.
"PPR experienced a decrease in calls to our office phone line during the summer. For example, prior to the revelations of NSA tracking, we received on average 40 calls per month. After the NSA revelations became public, we received on average only 20 calls per month."
**Tracy Rosenberg, Media Alliance:**
"Several organizational members have asked to have their membership terminated and their data expunged from our database after purchasing products or services (and purchasing memberships for the purpose of receiving discounted prices on those products or services) in the wake of recent publicity about the extent of telephone metadata surveillance. Media Alliance has experienced a significant increase in the number of individuals expressing concern about the privacy of their inquiries and transactions with our organization, more than a doubling from any previous year. I have been in this position since 2007 and the increase is unprecedented. Moreover, we have had a large number of individuals go beyond expressing concern to request the end of their memberships."
### Government Damaged the Backbone of the Internet When It Demanded Email Service’s Private Encryption Key
San Francisco - Federal law enforcement officers compromised the backbone of the Internet and violated the Fourth Amendment when they demanded private encryption keys from the email provider Lavabit, the Electronic Frontier Foundation (EFF) argues in a brief submitted Thursday afternoon to the US Court of Appeals for the Fourth Circuit. In the amicus brief, EFF asks the panel to overturn a contempt-of-court finding against Lavabit and its owner Ladar Levison for resisting a government subpoena and search warrant that would have put the private communications and data of Lavabit's 400,000 customers at risk of exposure to the government.
For nearly two decades, secure Internet communication has relied on HTTPS, a encryption system in which there are two keys: A public key that anyone can use to encrypt communications to a service provider, and a private key that only the service provide can use to decrypt the messages.
In July, the Department of Justice demanded Lavabit's private key—first with a subpoena, then with a search warrant. Although the government was investigating a single user, having access to the private key means the government would have the power to read all of Lavabit's customers' communications. The target of the investigation has not been named, but journalists have noted that the requests came shortly after reports that NSA whistleblower Edward Snowden used a Lavabit email account to communicate.
"Obtaining a warrant for a service's private key is no different than obtaining a warrant to search all the houses in a city to find the papers of one suspect," EFF Senior Staff Attorney Jennifer Lynch said. "This case represents an unprecedented use of subpoena power, with the government claiming it can compel a disclosure that would, in one fell swoop, expose the communications of every single one of Lavabit's users to government scrutiny."
EFF's concerns reach beyond this individual case, since the integrity of HTTPS is employed almost universally over the Internet, including in commercial, medical and financial transactions.
"When a private key has been discovered or disclosed to another party, all users' past and future communications are compromised," EFF Staff Technologist Dan Auerbach said. "If this was Facebook's private key, having it would mean unfettered access to the personal information of 20 percent of the earth's population. A private key not only protects communications on a given service; it also protects passwords, credit card information and a user's search engine query terms."
Initially, Levison resisted the government request. In response, a district court found Lavabit in contempt of court and levied a $5,000-per-day fine until the company complied. After Levison was forced to turn over Lavabit's key, the certificate authority GoDaddy revoked the key per standard protocol, rendering the secure site effectively unavailable to users.
Since Lavabit's business model is founded in protecting privacy, Levison shut down the service when it no longer could guarantee security to its customers.
"The government's request to Lavabit not only disrupts the security model on which the Internet depends, but also violates our Constitutional protections against unreasonable searches and seizures," EFF Staff Attorney Hanni Fakhoury said. "By effectively destroying Lavabit's legitimate business model when it complied with the subpoena, the action was unreasonably burdensome and violated the Fourth Amendment."
The deadline for the government's response brief is Nov. 12, 2013.
For EFF's full amicus brief:
[https://www.eff.org/document/lavabit-amicus](https://www.eff.org/document/lavabit-amicus)
### Contacts:
Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
[jlynch@eff.org](mailto:jlynch@eff.org)
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
[hanni@eff.org](mailto:hanni@eff.org)
### StopWatching.us Coalition Releases Video to Support Oct. 26 Rally Against NSA Mass Surveillance
[US Rep. John Conyers Jr., “Pentagon Papers” whistleblower Daniel Ellsberg and actor Maggie Gyllenhaal join a chorus of prominent voices calling for an end to mass suspicionless surveillance by the National Security Agency (NSA) in a new short video released by the StopWatching.us coalition. Directed by Brian Knappenberger (](https://www.eff.org/files/2013/10/23/maggie_large.png) *We Are Legion: The Story of the Hackivists*) and produced by the Electronic Frontier Foundation (EFF), the PSA-style video draws parallels between the privacy invasions perpetrated by the Nixon administration and the dragnet telecommunications data collection confirmed this summer by whistleblower Edward Snowden. ![ mytubethumb](https://www.eff.org/files/mytube/yt_aGmiw_rrNxk.jpg)
![ play](https://www.eff.org/sites/all/modules/contrib/mytube/play.png)
[Privacy info.](https://www.eff.org/deeplinks/2008/02/embedded-video-and-your-privacy)This embed will serve content from [youtube.com](//www.youtube.com/embed/aGmiw_rrNxk)
WATCH THE VIDEO HERE:
[https://rally.stopwatching.us/](https://rally.stopwatching.us/)
EMBED CODE: <iframe width="640" height="480" src="//
[www.youtube-nocookie.com/embed/aGmiw_rrNxk](https://www.youtube-nocookie.com/embed/aGmiw_rrNxk)" frameborder="0" allowfullscreen></iframe>
The video, “Stop Watching Us: The Video,” is a call to action released in support of the Stop Watching Us: Rally Against Mass Surveillance being held in Washington, DC, on Saturday, Oct. 26, the 12
th anniversary of the Patriot Act. Formed in June 2013, the StopWatching.us coalition is comprised of more than 100 public advocacy organizations and companies from across the political spectrum demanding that Congress investigate the full extent of the NSA's spying programs.
“I’m very honored to help EFF and StopWatching.us get out the word and make the rally in DC as big and as informed as possible,” Knappenberger said. “This is the moment for a large scale debate on the future of this thing we all love, the Internet, the way we communicate, our relationship with our government and how technology and its progress can blend with more traditional notions of privacy, liberty and democracy.”
A diverse cast of media, academic, political and legal figures and truth-speakers unite in the video to sound the alarm over unconstitutional government surveillance. The full list, in order of appearance, includes:
**Daniel Ellsberg**, “Pentagon Papers” whistleblower **Phil Donahue**, television talk-show pioneer **US Rep. John Conyers Jr.,**(D-MI), ranking Democrat on the House Judiciary Committee **David Segal**, executive director of Demand Progress **Maggie Gyllenhaal**, actor and activist **Oliver Stone**, director of *The Untold History of the United States*and *Nixon* **John Cusack**, actor and activist **Wil Wheaton**, actor and writer **Molly Crabapple**, artist and writer **Jesselyn Radack**, U.S. Department of Justice whistleblower and national security and human rights director at the Government Accountability Project **J. Kirk Wiebe**, NSA whistleblower **Mark Klein**, AT&T whistleblower who revealed the telecommunications company’s collaboration with the NSA in collecting customer data **Thomas Drake**, NSA whistleblower **Cindy Cohn**, Legal Director at the Electronic Frontier Foundation **Dan Choi**, LGBTQ activist and Iraq War veteran **Lawrence Lessig,**Roy L. Furman Professor of Law and Leadership at Harvard Law School
Thomas Drake and Daniel Choi will also speak at the rally, which begins with a march from Columbus Circle to the Capitol Reflecting Pool at 12 p.m. EST on Saturday, Oct. 26. StopWatching.us will also deliver more than 500,000 signatures opposing the NSA’s mass surveillance to Congress. The coalition is calling for a full Congressional investigation of America’s surveillance programs, reform to federal surveillance law, and accountability from officials responsible for hiding this surveillance from lawmakers and the public.
For more information on the full list of organizations involved in the coalition and the joint letter sent to Congress, please visit:
[https://stopwatching.us/](https://stopwatching.us/).
More information about the rally is available here:
[https://rally.stopwatching.us](https://rally.stopwatching.us).
To speak to a StopWatching.us spokesperson about the video, please contact Christina DiPasquale at 202.716.1953 or
[Christina@fitzgibbonmedia.com](mailto:Christina@fitzgibbonmedia.com).
### Massive Crowdsourcing Effort Leads to Strong Petition Before the USPTO
San Francisco - The Electronic Frontier Foundation (EFF) today filed a formal challenge to the so-called "podcasting patent" used by a patent troll to shake down podcasters big and small for licensing fees. The petition for inter partes review, presented today to the US Patent and Trademark Office (USPTO), is the first legal filing in EFF's "
[Save Podcasting](https://www.eff.org/deeplinks/2013/05/help-save-podcasting)" campaign launched in May.
In January 2013, Personal Audio, LLC, began suing a number of podcasters, including comedian Adam Carolla (The Adam Carolla Show) and three major television networks, claiming they infringe U.S. Patent No. 8,112,504. In addition to filing these lawsuits, Personal Audio has sent demand letters to a variety of podcasters demanding that they pay a license fee. Because Personal Audio's business model is entirely based on leveraging its patents and it does not do any podcasting itself, the company fits the definition of a "non-practicing entity," or—as everyone from EFF to the White House calls these entities—a "
[patent troll](https://trollingeffects.org/)."
"As we show in our petition, Personal Audio is not the true inventor of this technology and should not be demanding a payout from today's podcasters," EFF Staff Attorney Daniel Nazer said. "If you look into the history of podcasting, you won't see anything about Personal Audio."
[Today's petition shows that Personal Audio did not invent anything new, and, in fact, other people were podcasting years before Personal Audio first applied for a patent. In preparation for this filing, EFF solicited help from the public to find prior art, or earlier examples of podcasting. In the petition, EFF cites three examples: Internet Pioneer Carl Malamud's "Geek of the Week" online radio show and online broadcasts by CNN and the Canadian Broadcasting Corporation (CBC).
](https://www.eff.org/files/2013/10/16/geekoftheweek.jpg)
Members of the public donated $76,160 to fund this
[campaign](https://supporters.eff.org/donate/save-podcasting), an amount more than double what EFF originally requested when it launched its "Save Podcasting" fundraiser in May. EFF partnered with attorneys working pro bono and the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society to craft the petition. The donated funds will be used to pay the fees and costs associated with the petition, which are primarily Patent Office filing fees. Any funds remaining after the fees are paid will go towards EFF's ongoing patent reform work.
"Bad patents like this one slow down innovation—exactly the opposite of what the patent system was intended to do," said EFF Senior Staff Attorney Julie Samuels, the Mark Cuban Chair to Eliminate Stupid Patents. "We are thrilled to challenge this bad patent and make the world safer for creators and podcasters."
EFF's "Patent Busting Project" is part of a larger effort to defend innovation through both legal and legislative means.
For the petition:
[https://www.eff.org/document/podcasting-petition-inter-partes-review](https://www.eff.org/document/podcasting-petition-inter-partes-review)
For Personal Audio's U.S. Patent No. 8,112,504
[http://www.google.com/patents/US8112504](http://www.google.com/patents/US8112504)
### Contacts:
Daniel Nazer
Staff Attorney
Electronic Frontier Foundation
[daniel@eff.org](mailto:daniel@eff.org)
Julie Samuels
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
julie@eff.org
### Citing Concerns Over NSA’s Impact on Corporate Members, EFF Leaves Industry Group
San Francisco - The Electronic Frontier Foundation (EFF) today withdrew from the
[Global Network Initiative](http://www.globalnetworkinitiative.org/) (GNI), citing a fundamental breakdown in confidence that the group's corporate members are able to speak freely about their own internal privacy and security systems in the wake of the National Security Agency (NSA) [surveillance revelations](https://www.eff.org/nsa-spying).
EFF has been a civil society member of the multi-stakeholder human rights group since GNI was
[founded in 2008](https://www.eff.org/files/filenode/gni/signon_letter.txt) to advance freedom of expression and privacy in the global information and communication technologies sector. While much has been accomplished in these five years, EFF can no longer sign its name on joint statements knowing now that GNI's corporate members have been blocked from sharing crucial information about how the US government has meddled with these companies' security practices through programs such as [PRISM](https://www.eff.org/deeplinks/2013/06/what-we-need-to-know-about-prism) and [BULLRUN](https://www.eff.org/deeplinks/2013/09/crucial-unanswered-questions-about-nsa-bullrun-program).
"We know that many within the industry do not like or approve of such government interference, and GNI has, in statements, made it clear that member companies want permission from the US government to engage in greater transparency," EFF's International Director Danny O'Brien and Director for International Freedom of Expression Jillian C. York write in a
[letter](https://www.eff.org/document/gni-resignation-letter-0) to GNI leadership. "However, until serious reforms of the US surveillance programs are in place, we no longer feel comfortable participating in the GNI process when we are not privy to the serious compromises GNI corporate members may be forced to make. Nor do we currently believe that audits of corporate practice, no matter how independent, will uncover the insecurities produced by the US government's—and potentially other governments'—behavior when operating clandestinely in the name of national security."
EFF's involvement with GNI included helping to define its founding principles over two years of negotiations;
[ coordinating opposition](https://www.eff.org/deeplinks/2012/09/uk-snoopers-charter-draws-sharp-critique-global-advocates) to the United Kingdom's Communications Data Bill in 2011; releasing a [paper](https://www.eff.org/deeplinks/2011/09/new-paper-sets-forth-principles-and-practices) addressing free-speech issues surrounding account deactivation and content removal; and collaborating with fellow members in internal international technical and policy analysis. However, EFF can no longer stand behind the credibility of what had been one of GNI's most significant achievements—third-party privacy and freedom of expression [assessments](https://www.eff.org/deeplinks/2012/05/global-network-initiative-gets-inside-look-tech-firms%E2%80%99-human-rights-practices) of service providers, including Google, Microsoft and Yahoo.
Moving forward, EFF plans to continue to provide guidance to the GNI and engage companies directly, but as an external organization. EFF supports the other organizations and individuals that continue to work within the GNI for the free speech and privacy rights of users worldwide.
"Although EFF is taking a step back, GNI can still serve an important role as a collaborative project between human rights groups, companies, investors and academics," York said. "If the United States government truly supports international 'Internet freedom,' it would recognize the damage its policies are doing to weaken such efforts and the world's confidence in American companies."
For the text of the letter:
[https://www.eff.org/document/gni-resignation-letter-0](https://www.eff.org/document/gni-resignation-letter-0)
### Contacts:
Jillian York
Director for International Freedom of Expression
Electronic Frontier Foundation
jillian@eff.org
### Privacy Advocates Call Upon UN Member States to End Mass Internet Spying Worldwide
Geneva - At the 24th Session of the United Nations Human Rights Council on Friday, six major privacy NGOs, including the Electronic Frontier Foundation (EFF), warned nations of the urgent need comply with international human rights law to protect their citizens from the dangers posed by mass digital surveillance.
The groups launched the "International Principles on the Application of Human Rights to Communications Surveillance" at a side event on privacy hosted by the governments of Austria, Germany, Hungary, Liechtenstein, Norway, and Switzerland. The text is available in 30 languages at
[http://necessaryandproportionate.org](http://necessaryandproportionate.org).
"Governments around the world are waking up to the risks unrestrained digital surveillance pose to free societies," EFF International Rights Director Katitza Rodriguez said during the official presentation of the principles. "Privacy is a human right and needs to be protected as fiercely as all other rights. States need to restore the application of human rights to communications surveillance."
The document was the product of a year-long negotiation process between Privacy International, the Electronic Frontier Foundation, Access, Human Rights Watch, Reporters Without Borders, and the Association for Progressive Communications. The document spells out how existing human rights law applies to modern digital surveillance and gives lawmakers and observers a benchmark for measuring states' surveillance practices against long-established human rights standards. The principles have now been endorsed by over 260 organizations from 77 countries, from Somalia to Sweden.
Included in the 13 principles are tenets such as:
**Necessity:** State surveillance must be limited to that which is necessary to achieve a legitimate aim.
**Proportionality:** Communications surveillance should be regarded as a highly intrusive act and weighed against the harm that would be caused to the individual's rights.
**Transparency:** States must be transparent about the use and scope of communications surveillance. Public Oversight: States need independent oversight mechanisms.
**Integrity of Communications and Systems:** Because compromising security for state purposes always compromises security more generally, states must not compel ISPs or hardware and software vendors to include backdoors or other spying capabilities.
EFF and its co-signers will use the principles to advocate at national, regional and international levels for a change in how present surveillance laws are interpreted and new laws are crafted, including urging the United States government to re-engineer its domestic surveillance program to comply with international human rights law.
The event, "How to Safeguard the Right to Privacy in the Digital Age," featured speakers including Navi Pillay, the United Nations High Commissioner for Human Rights--who highlighted the recent scandals over British and US surveillance programs in her introductory remarks to the Human Rights Council this week—and Frank La Rue, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. Earlier this year, LaRue released a report that details the widespread use of state surveillance of communications in several countries, stating that such surveillance severely undermines a citizenry's ability to enjoy private lives, freely express themselves and exercise their other fundamental human rights.
"Member states of the Human Rights Council should assess their surveillance laws and bring them into compliance with the 13 benchmarks," Rodriguez says. "We must put an end to unchecked, suspicionless, mass spying online."
### Contacts:
Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation
[katitza@eff.org](mailto:katitza@eff.org)
### National Lawyers Guild, Patient Privacy Rights and The Shalom Center Among 22 Groups Asserting Right to Free Association
San Francisco - Five new groups—including civil-rights lawyers, medical-privacy advocates and Jewish social-justice activists—have joined a lawsuit filed by the Electronic Frontier Foundation (EFF) against the National Security Agency (NSA) over the unconstitutional collection of bulk telephone call records. With today's amended complaint, EFF now represents 22 entities in alleging that government surveillance under Section 215 of the Patriot Act violates Americans' First Amendment right to freedom of association.
The five entities joining the
[First Unitarian Church of Los Angeles v. NSA lawsuit](https://www.eff.org/cases/first-unitarian-church-los-angeles-v-nsa) before the U.S. District Court for the Northern District of California are: Acorn Active Media, the Charity and Security Network, the National Lawyers Guild, Patient Privacy Rights and The Shalom Center. They join an already diverse coalition of groups representing interests including gun rights, environmentalism, drug-policy reform, human rights, open-source technology, media reform and religious freedom.
"The First Amendment guarantees the freedom to associate and express political views as a group," EFF legal director Cindy Cohn said. "The NSA undermines that right when it collects, without any particular target, the phone records of innocent Americans and the organizations in which they participate. In order to advocate effectively, these organizations must have the ability to protect the privacy of their employees and members."
In June,
*The Guardian* newspaper published a secret order from the Foreign Intelligence Surveillance Court (FISC) that authorized the wholesale collection of phone records of all Verizon customers, including the numbers involved in each call, the time and duration of the call, and "other identifying information." Government officials subsequently confirmed the document's authenticity and acknowledged the order was just one of a series issued on a rolling basis since at least 2006.
EFF originally filed the lawsuit on June 16, arguing the tracking program allows the government to compile detailed connections between people and organizations that have no correlation to national security investigations. Along with adding the new plaintiffs, the amended complaint also adds new information about "contact chaining" searches through the vast trove of phone records, adds James B. Comey as a defendant now that he is the head of the FBI, and makes some additional changes.
For Rabbi Arthur Waskow of The Shalom Center, the revelations come with a sense of déjà vu.
"Jewish tradition for at least the last 2,000 years has celebrated the right of privacy of the people against surveillance by a ruler," Waskow said. "A generation ago, I joined with other antiwar activists to successfully sue the FBI over its 'COINTELPRO' program, which violated our right to assemble in opposition to the Vietnam War. Now, as director of The Shalom Center—a religious organization advocating for peace, social justice and environmental sustainablility—I am concerned that the NSA has greatly surpassed the FBI in undermining our Constitutional rights."
The National Lawyers Guild, a public-interest legal association that has defended civil rights for more than 75 years, notes that surveillance has substantially impeded its ability to communicate with those seeking legal assistance.
"Applied on a massive scale, government surveillance becomes a form of oppression," the Guild's Executive Director Heidi Boghosian said. "Knowing that we are likely monitored, we have curbed our electronic interactions. Sensitive discussions about cases are confined to in-person meetings and letters. We have no illusions that our hotline for individuals visited by the FBI is private; we don't even ask for specific details for fear of government eavesdropping."
EFF also represents the plaintiffs in Jewel v. NSA, a class-action case filed on behalf of individuals in 2008 aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans. The Jewel case is set for a conference with the Court on September 27 in San Francisco.
For the amended complaint:
[https://www.eff.org/document/first-unitarian-church-los-angeles-v-nsa-amended-complaint](https://www.eff.org/document/first-unitarian-church-los-angeles-v-nsa-amended-complaint)
### Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
[cindy@eff.org](mailto:cindy@eff.org)
Rabbi Arthur Waskow
Director
The Shalom Center
[awaskow@theshalomcenter.org](mailto:cindy@eff.org)
### Original Patriot Act Author Says Call-Data Collection Exceeds Congressional Intent
San Francisco - The Electronic Frontier Foundation (EFF) today filed a brief on behalf of
[Rep. Jim Sensenbrenner (R-WI)](http://sensenbrenner.house.gov/), the author of the original USA PATRIOT Act, in a case brought by the American Civil Liberties Union (ACLU) against the National Security Agency (NSA). In the brief, Sensenbrenner argues that Congress never intended the Patriot Act to permit the NSA's collection of the records of every telephone call made to, from and within the United States. Sensenbrenner urges the court to deny the NSA's motion to dismiss and grant the ACLU's motion for a preliminary injunction, which would halt the program until the case is decided.
In early June,
*The Guardian *published a classified document leaked by former NSA contractor Edward Snowden detailing how the agency is vacuuming up call data from the Verizon phone network under the auspices of Section 215 of the Patriot Act. Within days, [the ACLU filed a lawsuit](https://www.aclu.org/national-security/aclu-v-clapper-challenge-nsa-mass-phone-call-tracking) to defend Americans' rights to privacy, due process, and free speech. Meanwhile, a coalition of legislators— [led by Sensenbrenner](sensenbrenner.house.gov/news/documentsingle.aspx?DocumentID=346324), who served as Chairman of the House Judiciary Committee when the Patriot Act passed— [openly criticized] the agency's practices as far exceeding the surveillance authority granted by Congress.
"I stand by the Patriot Act and support the specific targeting of terrorists by our government, but the proper balance has not been struck between civil rights and American security," said Sensenbrenner, who chaired the House Judiciary Committee during the Patriot Act debates. "A large, intrusive government-however benevolent it claims to be-is not immune from the simple truth that centralized power threatens liberty. Americans are increasingly wary that Washington is violating the privacy rights guaranteed to us by the Fourth Amendment."
In July, EFF filed
[a separate lawsuit against the NSA](https://www.eff.org/cases/first-unitarian-church-los-angeles-v-nsa) on behalf of 18 diverse organizations, including gun advocates, environmentalists and churches, arguing that Section 215 violates the First Amendment right to association. Today's brief in the ACLU case is another prong in EFF's robust strategy to end the collection of millions of innocent Americans' telecommunications data.
"Congress did not grant intelligence agencies unbounded record-collecting authority," EFF Senior Staff Attorney David Greene said. "The law was crafted to allow the NSA to obtain only records that were relevant to 'an authorized investigation.' The NSA admits that the vast majority of the records it collects bear no relation to terrorism. The program's limitless scope vastly exceeds what Congress intended."
For the full
*amicus *brief:
[https://www.eff.org/document/aclu-v-clapper-amicus-brief](https://www.eff.org/document/aclu-v-clapper-amicus-brief)
### Contacts:
David Greene
Senior Staff Attorney
Electronic Frontier Foundation
[davidg@eff.org](davidg@eff.org)
Ben Miller
Communications Director
Rep. Jim Sensenbrenner (WI-05)
[benmiller@mail.house.gov](mailto:benmiller@mail.house.gov)
### Legal Threats Dropped in Battle Over Term to Describe Gay Gamers
San Francisco - In a big win for gay gamers around the world, a blogger has surrendered his bogus trademark claim on the word 'gaymer,' freeing online forums, conventions, and others to use the descriptive term without fear of legal threats and interference.
The Electronic Frontier Foundation (EFF) and the law firm Perkins Coie represented a group of Reddit gaymers – members of the lesbian, gay, bisexual, and transgendered community who have an active interest in videogames – after their long-running Reddit forum called r/gaymers was the target of a cease-and-desist letter complaining about their use of the term. It turns out blogger Chris Vizzini, who started a website called gaymer.org in 2006, had registered a trademark on 'gaymer' even though it had been in widespread use long before Vizzini started his website. With the help of EFF and Perkins Coie, the Reddit gamers asked the U.S. Patent and Trademark Office (USPTO) to cancel the trademark in January of this year. Vizzini ultimately decided to surrender the mark, which was officially revoked this week.
"Gaymer is a term that everyone can use – including Vizzini – and we're pleased that there is no legal question about that now," said EFF Intellectual Property Director Corynne McSherry. "But the real tragedy is that this term was ever registered for a trademark in the first place. You shouldn't have to go through a big legal battle to use a word you've used for years. The PTO must get more vigilant about the trademarks it allows to be registered in order to protect everyone's free speech rights."
"Trademark is supposed to protect consumers from confusion, not to shut down discussion spaces and the names they have rallied around," said Zack Karlsson, the r/gaymer community's representative in the trademark challenge. "We were shocked that anyone would try to assert ownership rights in 'gaymer' and felt the term belonged to the public, not Mr. Vizzini."
"We are thrilled with this result," said Judy Jennison, lead counsel for Perkins Coie. "It's been a privilege to work with EFF and Zack to clean up the registry and support an open discussion."
Cancellation from USPTO:
[https://www.eff.org/document/cancellation](https://www.eff.org/document/cancellation)
For more on this case:
[https://www.eff.org/cases/petition-cancel-gaymer-trademark](https://www.eff.org/cases/petition-cancel-gaymer-trademark)
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
### EFF Sues Liberation Music for Forcing Harvard Professor’s Video Off YouTube
San Francisco - The Electronic Frontier Foundation (EFF) today filed suit against an Australian record company for misusing copyright law to remove a lecture by Harvard Law School professor Lawrence Lessig from YouTube. With co-counsel Jones Day, EFF is asking a federal judge in Massachusetts to rule that the video is lawful fair use, to stop Liberation Music from making further legal threats, and to award damages.
"The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them," Lessig said. "I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight."
A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.
Copyright law allows for the fair use of works for purposes such as criticism, comment, teaching, and scholarship. Professor Lessig's use of the "Lisztomania" clips in his lecture was a classic example of fair use and was not copyright infringement.
Earlier this year, Liberation Music, which claims to own the license to the Phoenix song, began the process to block the video through YouTube's copyright infringement system. After the company submitted a DMCA takedown notice, Lessig filed a counter-notice that asserted the clips were fair use. After Liberation Music threatened to sue Lessig, he retracted the notice. But Lessig did not concede this issue. Instead, he enlisted EFF's help to take Liberation Music to court.
"There's a long and sorry history of content owners abusing copyright to take down fair uses, but this one is particularly shocking," said EFF Intellectual Property Director Corynne McSherry. "Based on nothing more than a few clips illustrating Internet creativity, Liberation Music took down an entire lecture by one of the leading experts in the world on copyright and fair use. This kind of abuse has to stop."
### About Prof. Lessig:
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.
For the full complaint:
[https://www.eff.org/document/lessig-v-liberation-music-complaint](https://www.eff.org/document/lessig-v-liberation-music-complaint)
For Liberation Music's email to Prof. Lessig:
[https://www.eff.org/document/lessig-v-liberation-music-exhibit-b](https://www.eff.org/document/lessig-v-liberation-music-exhibit-b)
### Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
[corynne@eff.org](mailto:corynne@eff.org)
Daniel Nazer
Staff Attorney
Electronic Frontier Foundation
[daniel@eff.org](mailto:daniel@eff.org)
[Late Digital Rights Activist, International Access to Knowledge Advocate, and NSA Spying Journalists Win EFF Pioneer Awards](/vi/press/releases/late-digital-rights-activist-international-access-knowledge-advocate-and-nsa-spying)
### EFF to Honor Aaron Swartz, James Love, and Glenn Greenwald and Laura Poitras Next Month in San Francisco Ceremony
San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the distinguished winners of the 2013 Pioneer Awards: late digital rights activist Aaron Swartz, international access to knowledge advocate James Love, and Glenn Greenwald and Laura Poitras – the journalists behind the blockbuster stories detailing extensive spying by the U.S. National Security Agency (NSA).
The award ceremony will be held the evening of September 19 at the Lodge at the Regency Center in San Francisco. Renowned academic, author, and activist Professor Lawrence Lessig will be the keynote speaker.
Pioneer award winners Glenn Greenwald and Laura Poitras brought the world clear and credible news and analysis about the massive domestic surveillance programs currently conducted by the NSA – transforming leaked documents by whistleblower Edward Snowden into riveting narrative that everyone could understand. These blockbuster stories exposed a web of convoluted, invasive spying on phone call history, email connections, and other communications data, sparking outrage across the globe and unprecedented admissions by the U.S. government about the extent of the surveillance. Greenwald worked as a constitutional and civil rights litigator before turning to journalism. He was the first recipient of the I.F. Stone Award for Independent Journalism and won the 2010 Online Journalism Award. Poitras is a documentary filmmaker and has won a Peabody Award for her work, as well as a 2012 MacArthur Fellowship. She has also been nominated for both an Academy Award and an Emmy Award. Greenwald and Poitras are both founding board members of the Freedom of the Press Foundation, which supports and defends transparency journalism.
James Love is one of the leading champions in the international battle for access to knowledge, defending everyone's right to free speech, privacy, fair competition, and health across the globe for more than 20 years. As the director of Knowledge Ecology International (KEI), Love was instrumental in the adoption of a global intellectual property treaty for people with reading and visual disabilities this year. Love tirelessly fought strong resistance from the intellectual property rightsholder community, and the result enshrines fair use rights – in this case, the right to transform reading material into accessible formats – into an international treaty for the first time in history. Love has been a crucial defender of users' rights against trade agreements with restrictive copyright provisions like TPP and ACTA, and is also fighting against the content industry's efforts to expand new, copyright-like rights over content to broadcasters. Additionally, as a civil society leader in Washington, D.C., he advocates for open, transparent rulemaking.
Aaron Swartz's achievements and influence on the Internet and its activist community are profound, despite his untimely death at age 26 earlier this year. Swartz co-authored the RSS web feed format when he was 14 and was one of the early architects of Creative Commons. He was a developer of the Internet Archives' Open Library and one of the co-creators of the online news site Reddit. Swartz founded the online activism group Demand Progress, which was a critical part of the successful campaign blocking the SOPA and PIPA Internet censorship bills. Swartz was also a committed activist for the cause of open access to government and government-funded information. In 2011, Swartz was accused of downloading millions of academic articles from the online archive JSTOR, allegedly without "authorization" even though his access to JSTOR through MIT's open network was authorized by JSTOR's contract with MIT. He faced 13 felony counts of hacking and wire fraud, including some under the draconian Computer Fraud and Abuse Act (CFAA). After two years of fighting the charges, Swartz tragically took his own life this past January.
"Aaron was nominated for a Pioneer Award regularly over the years, and we always thought we'd have a long time to give it to him – he had done amazing work so far, and we knew that over time he would continue to contribute to building a better future for the Internet and digital rights," said EFF Legal Director Cindy Cohn. "All of EFF is heartbroken at his passing and that we didn't seize the opportunity to give Aaron this honor while he was still with us. But we'll do our best to celebrate his life and do justice to his giant body of work."
"What all of this year's Pioneer Award winners have in common is the desire to democratize the flow of information, and they have all made the world a better, fairer place through their tireless efforts," said EFF Executive Director Shari Steele. "We are so proud to be able to honor them and their extraordinary achievements at the ceremony on September 19th."
Tickets to the Pioneer Awards are $65 for EFF members and $75 for non-members. Also available are tickets to a special advance reception featuring past and present Pioneer Award winners, special guests, and keynoter Lawrence Lessig, who spent more than a decade leading the fight for intellectual property reform and now is part of the campaign to reform computer crime law in the wake of his friend Aaron Swartz's death.
Awarded every year since 1992, EFF's Pioneer Awards recognize the leaders who are extending freedom and innovation on the electronic frontier. Previous honorees include Tim Berners-Lee, the Tor Project, Limor "Ladyada" Fried, Linus Torvalds, and Tunisian blogging collective Nawaat, among many others. Sponsors of this year's Pioneer Awards include Automattic, Inc., Facebook, SaurikIT, JunkEmailFilter.com, JibJab, and Pinterest.
To buy tickets to this Pioneer Awards:
[https://www.eff.org/awards/pioneer/2013/tickets](https://www.eff.org/awards/pioneer/2013/tickets)
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
### EFF, Fenwick & West, and Durie Tangri Team Up to Defend Right to Access and Share Safety Standards
San Francisco - In an ongoing effort to protect free speech and the right of the public to examine the rules and regulations that govern our society, the Electronic Frontier Foundation (EFF) today announced it will defend open-government advocate Carl Malamud and the organization he founded,
[Public.Resource.Org](https://www.eff.org/cases/publicresourceorg-v-smacna), against a copyright lawsuit filed by three standards development organizations. Fenwick & West LLP, Durie Tangri LLP, and David Halperin join EFF as co-counsel.
On August 3, the National Fire Protection Association, ASTM International and the American Society of Heating, Refrigerating and Air Conditioning Engineers filed a lawsuit with a federal court in Washington, D.C., alleging "massive copyright infringement" by Public.Resource.Org for publishing codes and standards that have been incorporated into law. EFF argues such standards must be treated as part of the public domain, and Public.Resource.Org has a constitutional right to ensure government accountability by making the documents publicly available.
"Standards organizations get huge benefits from having their standards adopted as mandatory by federal and state regulators," EFF Staff Attorney Mitch Stoltz said. "But those benefits don't include the right to control access to those laws."
This isn't the first time Public.Resource.Org has faced legal threats for its work. In
[Public.Resource.Org v. SMACNA](https://www.eff.org/cases/publicresourceorg-v-smacna), a standards development organization claimed that it held the copyright in federally mandated air-duct standards and that Malamud's site violated its copyright by publishing them online. EFF and co-counsel Fenwick & West and David Halperin stepped in to litigate the case, and SMACNA promptly backed down.
The stakes are even higher this time around. The standards in question are crucial to the public's interest in fire and electrical safety. Public access to such codes is important when, for example, there is an industrial accident or natural disaster, or when a homebuyer wants to double-check that a house was built to code. Public.Resource.Org publishes the codes in a user-friendly format for not only interested citizens, but reporters, researchers, and business owners.
"Private organizations shouldn't control who can read the law, or where and how they can access it," Stoltz said. "The law belongs to all of us."
With decades of experience as a transparency advocate and eight books under his belt, Malamud founded Public.Resource.Org in Sebastopol, CA, in 2007 and currently serves as the nonprofit's president. In recent years, the organization has focused on obtaining and publishing a variety of legal documents and court decisions to make the law and justice system more accessible to the public.
"Technical standards incorporated into law are some of the most important rules of our modern society," Malamud said. "In a democracy, the people must have the right to read, know, and speak about the laws by which we choose to govern ourselves."
### Contact:
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
[mitch@eff.org](mailto:mitch@eff.org)
### Court Blocks Enforcement of Dangerous New Jersey Law
Newark, NJ - A New Jersey federal district court judge granted motions for a preliminary injunction today, blocking the enforcement of a dangerous state law that would put online service providers at risk by, among other things, creating liability based on "indirect" publication of content by speech platforms.
The Electronic Frontier Foundation (EFF) argued for the injunction in court on behalf of the Internet Archive, as the statute conflicts directly with federal law and threatens service providers who enable third party speech online.
"The Constitution does not permit states to pass overbroad and vague statutes that threaten protected speech. The New Jersey statute created that threat and the court was right to block it," said EFF Senior Staff Attorney Matt Zimmerman. "Similarly, Section 230 of the Communications Decency Act prohibits the state from threatening to throw online providers in jail for what their users do and the statute violated that rule as well. We are grateful that the court recognized the importance of these bedrock principles to online libraries and other platforms that make the Internet the vital and robust tool it is today."
The New Jersey law at issue is an almost carbon-copy of a Washington state law successfully blocked by EFF and the Internet Archive last year. While aimed at combatting online ads for underage sex workers, it instead imposes stiff criminal penalties on ISPs, Internet cafes, and libraries that "indirectly" cause the publication or display of content that might contain even an "implicit" offer of a commercial sex act if the content includes an image of a minor. The penalties – up to 20 years in prison and steep fines – would put enormous pressure on service providers to block access to broad swaths of otherwise protected material in order to avoid the vague threat of prosecution.
"Within the past month, we've seen a coalition of state attorneys general ask Congress to gut CDA 230 to make way for harmful laws like New Jersey's," said Zimmerman. "This misguided proposal puts speech platforms at risk, which in turn threatens online speech itself. Law enforcement can and must pursue criminals vigorously, but attacking the platforms where people exercise their right to free speech is the wrong strategy."
Backpage.com separately filed suit against this law, represented by the law firm of Davis Wright Tremaine, who also joined today's argument.
For more on this case:
[https://www.eff.org/cases/internet-archive-v-hoffman](https://www.eff.org/cases/internet-archive-v-hoffman)
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
### Coalition Led by Electronic Frontier Foundation Crowdsources Demand Letters
San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of organizations and law schools today launched the newest tool in the fight against patent trolls: Trolling Effects (
[trollingeffects.org](https://trollingeffects.org/)). The online resource aims to unite and empower would-be victims of patent trolls through a crowdsourced database of demand letters and to serve as a clearinghouse of information on the troll epidemic.
"Patent trolls will no longer be able to hide under a cloak of legal darkness," EFF Activist Adi Kamdar said. "Trolling Effects will shine a light on companies that abuse the patent system to shake down innovators."
Patent trolls use the threat of expensive and lengthy patent litigation to extort settlements from innovators large and small. Because the majority of these threats never become lawsuits, most of the threatening letters never show up in public dockets.
In June, the White House joined calls from Congress for more transparency around demand letters. Trolling Effects aims to provide that transparency. The site will allow demand-letter recipients to post the documents online, find letters received by others, and research who is really behind the threats. The site also features comprehensive guides to the patent system and a blueprint for patent reform. Journalists, academics, and policy makers will find the site a one-stop resource for researching the patent system.
"Trolling Effects began with the idea that people need to come together to defeat patent trolls," said EFF Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "Innovators who previously would have had to face the troll threat alone can use this new collaborative tool to share information and intelligence."
Other members of the Trolling Effects coalition include: Application Developers Alliance, Ask Patents, Engelberg Center on Innovation Law & Policy at NYU School of Law, Engine Advocacy, Public Knowledge, PUBPAT, and the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law.
Trolling Effects is one of several ways EFF is combating the troll plague on the U.S. patent system. Currently, EFF is collecting information on legislative proposals as part of its Defend Innovation project and will publish a report later this year. EFF also recently launched an effort to challenge patents held by Personal Audio, a notorious patent troll that has been shaking down podcasters across the country.
"The tide is turning on patent trolls," said EFF Staff Attorney Daniel Nazer. "The more people learn about their business practices, the more pressure we're able to put on them. It's time to shut down this business model once and for all."
Contacts:
Adi Kamdar
Activist
Electronic Frontier Foundation
adi@eff.org
Julie Samuels
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
julie@eff.org
### 100+ Organizations Sign Thirteen Principles to Protect Human Rights
San Francisco - More than 100 organizations from across the globe – including Privacy International, Access, and the Electronic Frontier Foundation (EFF) – are taking a stand against unchecked communications surveillance, calling for the governments around the world to follow international human rights law and curtail pervasive spying.
The coalition of groups have all signed the International Principles on the Application of Human Rights to Communication Surveillance – 13 basic principles that spell out how existing human rights law applies to modern digital surveillance. Written in response to the increasing number of government surveillance standards that focus on law enforcement and "national security" priorities instead of citizens' rights, the principles include advice on how surveillance laws should respect the law, due process, and include public oversight and transparency. Current debates over government surveillance are often limited by outmoded definitions of content versus metadata, or stored data versus data in transit. The principles released today concentrate on the core issue: how human rights protect all information that reveals private information about an individual's communications.
"It's time to restore human rights to their place at the very heart of the surveillance debate," said EFF International Director Danny O'Brien. "Widespread government spying on communications interferes with citizens' ability to enjoy a private life, and to freely express themselves – basic rights we all have. But the mass metadata collected in the U.S. surveillance program, for example, makes it extraordinarily easy for the government to track what groups we associate with and why we might contact them. These principles announced today represent a global consensus that modern surveillance has gone too far and must be restrained."
The organizations signing the principles come from more than 40 different countries. The principles will be used to advocate for a change in how present laws are interpreted, and new laws are crafted.
"International human rights law binds every country across the globe to a basic respect for freedom of expression and personal privacy," said EFF International Rights Director Katitza Rodriguez. "The pervasiveness of surveillance makes standing up for our digital rights more important than ever. And we need those rights to survive in a digital world, where any state can spy on us all, in more detail than ever before. We know that surveillance laws need to be transparent and proportionate, with judicial oversight, and that surveillance should only be used when absolutely necessary. Everything we've heard about the NSA programs indicate that they fall far outside these international human rights principles."
For the International Principles on the Application of Human Rights to Communications Surveillance:
[https://necessaryandproportionate.org/](https://necessaryandproportionate.org/)
For more on how the principles were developed:
[https://www.eff.org/deeplinks/2013/07/thirteen-principles-for-human-rights](https://www.eff.org/deeplinks/2013/07/thirteen-principles-for-human-rights)
Contacts:
Danny O'Brien
International Outreach Coordinator
Electronic Frontier Foundation
danny@eff.org
For Spanish-language interviews:
Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation
katitza@eff.org
### Broad Coalition of Organizations Team Up for Freedom of Association Lawsuit
San Francisco - Nineteen organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency (NSA) today for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by the Electronic Frontier Foundation (EFF), a group with years of experience fighting illegal government surveillance in the courts.
"The First Amendment protects the freedom to associate and express political views as a group, but the NSA's mass, untargeted collection of Americans' phone records violates that right by giving the government a dramatically detailed picture into our associational ties," said EFF Legal Director Cindy Cohn. "Who we call, how often we call them, and how long we speak shows the government what groups we belong to or associate with, which political issues concern us, and our religious affiliation. Exposing this information – especially in a massive, untargeted way over a long period of time – violates the Constitution and the basic First Amendment tests that have been in place for over 50 years."
At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by last month's publication of an order from the Foreign Intelligence Surveillance Court (FISC). The Director of National Intelligence (DNI) further confirmed that this formerly secret document was legitimate, and part of a broader program to collect all major telecommunications customers' call histories. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other "identifying information" for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006.
"People who hold controversial views – whether it's about gun ownership policies, drug legalization, or immigration – often must express views as a group in order to act and advocate effectively," said Cohn. "But fear of individual exposure when participating in political debates over high-stakes issues can dissuade people from taking part. That's why the Supreme Court ruled in 1958 that membership lists of groups have strong First Amendment protection. Telephone records, especially complete records collected over many years, are even more invasive than membership lists, since they show casual or repeated inquiries as well as full membership."
"The First Unitarian Church of Los Angeles has a proud history of working for justice and protecting people in jeopardy for expressing their political views," said Rev. Rick Hoyt. "In the 1950s, we resisted the McCarthy hysteria and supported blacklisted Hollywood writers and actors, and we fought California's 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, we gave sanctuary to refugees from civil wars in Central America. The principles of our faith often require our church to take bold stands on controversial issues. We joined this lawsuit to stop the illegal surveillance of our members and the people we serve. Our church members and our neighbors who come to us for help should not fear that their participation in the church might have consequences for themselves or their families. This spying makes people afraid to belong to our church community."
In addition to the First Unitarian Church of Los Angeles, the full list of plaintiffs in this case includes the Bill of Rights Defense Committee, Calguns Foundation, Greenpeace, Human Rights Watch, People for the American Way, and TechFreedom.
EFF also represents the plaintiffs in Jewel v. NSA, a class action case filed on behalf of individuals in 2008 aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans. Last week, a federal court judge rejected the U.S. government's latest attempt to dismiss the case, allowing the allegations at the heart of the suit to move forward under the supervision of a public federal court.
For the full complaint in First Unitarian v. NSA:
[https://www.eff.org/node/75009](https://www.eff.org/node/75009)
Contacts:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org
### Air-Conditioning Group Agrees Not to Claim Copyright Ownership of a Public Law
In a victory for free speech and open government, the Sheet Metal and Air Conditioning Contractors Association (SMACNA) has conceded that it will no longer use trumped up copyright claims to try to stop Public.Resource.Org (Public Resource) from publishing safety standards that have been incorporated into law. Thanks to
[a lawsuit](https://www.eff.org/cases/publicresourceorg-v-smacna) filed by the Electronic Frontier Foundation (EFF), [Public.Resource.Org](https://public.resource.org) is now free to continue its mission of improving public access to the laws that govern our daily lives.
Public.Resource.Org is a non-profit organization that acquires and makes available online a wide variety of public documents such as fire safety codes, food safety standards, and other regulations that have been incorporated into U.S. and international laws. Such documents are often difficult to access otherwise, meaning the public cannot read them, much less comment on them.
In January, SMACNA demanded that Public.Resource.Org take offline a federally mandated air-duct standard, claiming the posting violated SMACNA’s copyright in the standard. Represented by EFF, Fenwick & West LLP, and David Halperin, Public Resource fought back and asked a federal court to declare that the standards became part of the public domain once they were incorporated into law.
After initially attempting to avoid responding to the lawsuit at all, SMACNA has now surrendered and agreed to publicly affirm that it will no longer claim copyright in the standards.
“Whether it’s the Constitution or a building code, the law is part of the public domain,” said EFF Intellectual Property Director Corynne McSherry. “We’re glad SMACNA is abandoning its effort to undermine that essential principle.”
In today’s technical world, public-safety codes are some of the country’s most important laws. Public access to such codes can be crucial when, for example, there is an industrial accident, a disaster such as Hurricane Katrina, or when a homebuyer simply wishes to independently consider whether her house was built to code standards. Publishing the codes online, in a readily-accessible format, also makes it possible for reporters and other interested citizens to search, excerpt, compare, and copy them.
“It’s about time Standards Development Organizations recognized that if a technical standard has been incorporated into federal law, the public has a right to read it, speak it and copy it freely,” said Public.Resource.Org founder Carl Malamud. “We hope SMACNA has finally learned that lesson.”
For the stipulation:
[https://www.eff.org/document/smacna-stipulation-and-judgment](https://www.eff.org/document/smacna-stipulation-and-judgment)
For more on Public.Resource.Org vs. SMACNA:
[https://www.eff.org/cases/publicresourceorg-v-smacna](https://www.eff.org/cases/publicresourceorg-v-smacna)
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
[corynne@eff.org](mailto:corynne@eff.org)
### Rejects Government's State Secret Privilege Claims in Jewel v. NSA and Shubert v. Obama
San Francisco - A federal judge today rejected the U.S. government's latest attempt to dismiss the Electronic Frontier Foundation's (EFF's) long-running challenge to the government's illegal dragnet surveillance programs. Today's ruling means the allegations at the heart of the Jewel case move forward under the supervision of a public federal court.
"The court rightly found that the traditional legal system can determine the legality of the mass, dragnet surveillance of innocent Americans and rejected the government's invocation of the state secrets privilege to have the case dismissed," said Cindy Cohn, EFF's Legal Director. "Over the last month, we came face-to-face with new details of mass, untargeted collection of phone and Internet records, substantially confirmed by the Director of National Intelligence. Today's decision sets the stage for finally getting a ruling that can stop the dragnet surveillance and restore Americans' constitutional rights."
In the ruling, Judge Jeffrey White of the Northern District of California federal court agreed with EFF that the very subject matter of the lawsuit is not a state secret, and any properly classified details can be litigated under the procedures of the Foreign Intelligence Surveillance Act (FISA). As Judge White wrote in the decision, "Congress intended for FISA to displace the common law rules such as the state secrets privilege with regard to matter within FISA's purview." While the court allowed the constitutional questions to go forward, it also dismissed some of the statutory claims. A status conference is set for August 23.
EFF's Jewel case is joined in the litigation with another case, Shubert v. Obama.
"We are pleased that the court found that FISA overrides the state secrets privilege and look forward to addressing the substance of the illegal mass surveillance," said counsel for Shubert, Ilann Maazel of Emery Celli Brinckerhoff & Abady LLP. "The American people deserve their day in court."
Filed in 2008, Jewel v. NSA is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. The case is supported by declarations from three NSA whistleblowers along with a mountain of other evidence. The recent blockbuster revelations about the extent of the NSA spying on telecommunications and Internet activities also bolster EFF's case.
For the full decision:
[https://www.eff.org/node/74895](https://www.eff.org/node/74895)
For more on Jewel v. NSA:
[https://www.eff.org/cases/jewel](https://www.eff.org/cases/jewel)
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org
### EFF Asks Federal Appeals Court to Clear Researcher Who Revealed AT&T Security Flaw
San Francisco - A team of computer-crime legal experts on Monday filed an appeal of the federal felony conviction and lengthy prison sentence handed down to Andrew "Weev" Auernheimer, a computer researcher who revealed a massive security flaw in AT&T's website and was subsequently prosecuted under the Computer Fraud & Abuse Act (CFAA).
The Electronic Frontier Foundation (EFF) joined law professor Orin Kerr, Internet attorney and EFF fellow Marcia Hofmann, and Weev's trial lawyers Tor Ekeland and Mark Jaffe in filing the brief with the 3rd U.S. Circuit Court of Appeals. The appeal argues the government's flawed prosecution theory under the CFAA resulted in an improper conviction and prison sentence.
"The government set out to make an example of Auernheimer," EFF Staff Attorney Hanni Fakhoury said. "But the only message this sends to the security-research community is that if you discover a vulnerability, you could go to jail for sounding the alarm."
In 2010, Auernheimer's co-defendant Daniel Spitler discovered that AT&T had configured its servers to make the email addresses of iPad owners publicly available on the Internet. Spitler wrote a script and collected roughly 114,000 email addresses as a result of the security flaw. Auernheimer then distributed the list of email addresses to media organizations as proof of the vulnerability, ultimately forcing AT&T to acknowledge and fix the security problem.
"This case is about the freedom to surf the Internet," said Kerr, a professor at the George Washington University Law School. "Congress never intended to criminalize visiting a public website."
Nevertheless, federal prosecutors went after Auernheimer and Spitler, charging each with identity theft and conspiracy to violate the CFAA—the same law used against Internet activist Aaron Swartz, who committed suicide this year amidst a similarly heavy-handed federal prosecution. Spitler accepted a plea deal in June 2011, while Auernheimer unsuccessfully fought the charges in a trial. Auernheimer was convicted and sentenced to 41 months in prison in March.
"Auernheimer was aggressively prosecuted for an act that caused little harm and was intended to be—and ultimately was—in the public interest," Hofmann said. "The CFAA's vague language gives prosecutors great latitude to abuse their discretion and throw the book at people they simply don't like. That's as evident here as it was in the prosecution of Aaron Swartz."
Auernheimer is currently incarcerated in a Special Housing Unit at the Allenwood Federal Correctional Complex in White Deer, Penn.
"Anyone who cares about the free flow of information on the Internet should be concerned about this case," Ekeland said. "The government is criminalizing computer behavior that millions of Americans engage in every day. The government's reckless and myopic prosecution of Auernheimer for obtaining public information from a public website endangers that vital aspect of the Internet and our national economy, which depends on the free flow of information."
On June 20, Reps. Zoe Lofgren and Jim Sensenbrenner, and Sen. Ron Wyden introduced "Aaron's Law" in Congress, a bill that would reform the CFAA. One element of the legislation would reform the laws that were used to convict Auernheimer.
For the full opening brief for the appeal:
[https://www.eff.org/cases/us-v-auernheimer](https://www.eff.org/cases/us-v-auernheimer)
Contacts:
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Marcia Hofmann
Internet Lawyer and EFF Fellow
Law Office of Marcia Hofmann
marcia@marciahofmann.com
Tor Ekeland
Tor Ekeland, P.C.
tor@torekeland.com
### Hearing Set for 10am Friday in Newark
Newark, NJ - The Internet Archive has filed a new legal challenge against a New Jersey state law that aims to make online service providers criminally liable for providing access to third parties' materials, conflicting directly with federal law and threatening the free flow of information on the Internet. A hearing on the Internet Archive's request for a preliminary injunction against the law is set for 10am Friday at the federal courthouse in Newark.
This is the second time that the Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to block enforcement of a law that's aimed at combatting online ads for underage sex workers but instead includes language that could put online libraries and other service providers at risk. The New Jersey statute is an almost carbon copy of a law successfully blocked by EFF and the Internet Archive last year.
"The Internet Archive strongly supports law enforcement efforts to combat child sex trafficking, but when lawmakers aren't careful, they can undermine the companies that foster the production and exchange of legitimate online content," said Digital Librarian Brewster Kahle, founder of the Internet Archive. "Our mission is to archive the World Wide Web and other digital materials for researchers, historians, and the general public. For us and others to do this work, we need laws whose effects fall only on lawbreakers so we can concentrate on the preservation of history."
The New Jersey law (section 12(b)(1) of the "Human Trafficking Prevention, Protection, and Treatment Act") could impose stiff penalties – up to 20 years in prison and steep fines – on ISPs, Internet cafes, and libraries that "indirectly" cause the publication, dissemination, or display of content that contains even an "implicit" offer of a commercial sex act if the content includes an image of a minor. Especially given the vagueness of the standard, service providers would feel enormous pressure to block access to broad swaths of otherwise protected material in order to minimize the risk of such harsh penalties.
The New Jersey law squarely conflicts with both the First Amendment and federal statute: Section 230 of the Communications Decency Act (CDA 230). The First Amendment bars vague criminal statutes because of the obvious risk of sweeping and improper application, as well as the resulting chilling effect on behalf of people subject to the law. Moreover, CDA 230 ensures that Internet intermediaries are protected from liability for what their users do and establishes clear national Internet policy to avoid a confusing patchwork of state laws.
"Section 230 of the Communications Decency Act requires states to direct their law enforcement efforts towards punishing criminals for their actions, not the providers of the online services that they use," said EFF Senior Staff Attorney Matt Zimmerman. "The Internet is the greatest tool for speech and communications ever invented, and it can be used for everything from inspirational to criminal purposes. However, targeting entities like the Internet Archive and other service providers for users' bad behavior is enormously shortsighted and puts at risk the socially beneficial content that their services facilitate. Congress got it right: online speech is best protected when the states leave providers alone."
"Free speech is threatened when states pass vague and draconian statutes like this one," said Frank Corrado, co-counsel with EFF on behalf of the Internet Archive in this case. "It's not enough to identify a serious problem like sex trafficking. To fight it, especially when speech is involved, the state has to be careful with its solution. The state of New Jersey clearly did not do that here."
Backpage.com, also a plaintiff in last year's successful court challenge to Washington's law, has separately filed suit asking the court to set aside the New Jersey statute.
For more on the New Jersey case, Internet Archive v. Hoffman
[https://www.eff.org/cases/internet-archive-v-hoffman](https://www.eff.org/cases/internet-archive-v-hoffman)
For more on the Washington case, Internet Archive v. McKenna:
[https://www.eff.org/cases/internetarchive-v-mckenna](https://www.eff.org/cases/internetarchive-v-mckenna)
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
### Author and Critic Deepens EFF's Security Expertise as NSA Scandal Intensifies
San Francisco - The Electronic Frontier Foundation (EFF) is honored to announce the newest member of its Board of Directors: renowned security expert Bruce Schneier.
Schneier is widely acclaimed for his criticism and commentary on everything from network security to national security. His insight is particularly important as we learn more and more about the unconstitutional surveillance programs from the National Security Agency and the depth and breadth of data the NSA is collecting on the public.
"EFF is one of the leading organizations fighting the government's unconstitutional spying, marshaling legal and technological expertise to battle surveillance in the courtroom and in Congress," said Schneier. "I'm excited to work together with the board and the staff as we learn more about this spying and how we can shut it down."
Schneier's first bestseller, "Applied Cryptography," was described by Wired as "the book the National Security Agency wanted never to be published." He's written a number of other influential books – including "Secrets and Lies" and "Liars and Outliers" – which, along with his monthly newsletter "Crypto-Gram" and his "Schneier on Security" blog, have reached hundreds of thousands of people with candid and lucid analysis of security issues. Schneier has also testified to Congress about the long-range security threat of unchecked presidential power.
"Bruce is one of America's premiere technologists – the person both experts and the general public turn to when they need answers to tough security questions," said EFF Executive Director Shari Steele. "We are very proud to have him join our Board of Directors to help EFF meet the challenges of the years ahead."
In addition to Schneier, EFF's Board of Directors includes John Perry Barlow, Brian Behlendorf, John Buckman, Lorrie Cranor, David Farber, John Gilmore, Brewster Kahle, Pam Samuelson, Brad Templeton, and Jonathan Zittrain.
Contact:
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
### Big Win in the Patent Office Curtails Troll's Lawsuit Campaign
San Francisco - The Electronic Frontier Foundation (EFF) has throttled a notorious patent used to wrongfully demand payment from cities and other municipalities that use tracking systems to tell transit passengers if their buses and trains are on time.
The United States Patent and Trademark Office (USPTO) has drastically narrowed the patent owned by ArrivalStar after EFF filed a formal request to reexamine the patent's legitimacy with the help of the Samuelson Law, Technology, and Public Policy Clinic at Berkeley Law. The ArrivalStar patent had been used as the basis for dozens of lawsuits against entities like the state of California, the city of Cleveland, and the Illinois Commuter Rail.
"This is an important victory for municipalities across the country that were faced with a tough choice: fighting an expensive lawsuit, paying ArrivalStar's settlement demands, or abandoning a public service," said EFF Staff Attorney Julie Samuels, the Mark Cuban Chair to Eliminate Stupid Patents. "We're gratified the patent office recognized that you can't patent something as obvious, broad, and vague as 'tracking something and notifying customers about it.'"
ArrivalStar had claimed its patent was based on an invention from 1999 and argued that many transit-tracking systems – as well as some package-tracking services – were infringing. But EFF and the Samuelson Clinic were able to show that as far back as 1992, public technical reports described a "Smart Bus system" that used the same methods described in the ArrivalStar patent. In the patent office's ruling, all but two of the patent's claims were struck down, fundamentally undermining any future attempts from ArrivalStar to use this patent to sue over transit-tracking systems.
"The ArrivalStar patent is an example of the current chronic misuse of software patents," said Jason Schultz, EFF Fellow and Co-Director of the Samuelson Clinic. "When the patent office issues a bad patent, it gives patent trolls a dangerous weapon to use against both small and large businesses – and in the end, consumers get fewer choices and higher prices. Even though we were eventually able to disarm this threat, a lot of damage was done in the meantime, and there are still a lot of bad patents out there."
EFF is currently working to bust a dangerous patent that a Texas company is using to shake down podcasts and podcasters like How Stuff Works and Adam Carolla, in addition to smaller podcasters. You can learn more about EFF's efforts to fix America's patent system at
[https://defendinnovation.org](https://defendinnovation.org).
For the full decision from the USPTO:
[https://www.eff.org/document/arrivalstar-patent-decision-uspto](https://www.eff.org/document/arrivalstar-patent-decision-uspto)
Contact:
Julie Samuels
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
julie@eff.org
### Lawsuit Seeks Transparency Before Implementation of a 'Bigger, Faster and Better' Biometrics System
San Francisco - As the FBI is rushing to build a "bigger, faster and better" biometrics database, it's also dragging its feet in releasing information related to the program's impact on the American public. In response, the Electronic Frontier Foundation (EFF) today filed a lawsuit to compel the FBI to produce records to satisfy three outstanding Freedom of Information Act requests that EFF submitted one year ago to shine light on the program and its face-recognition components.
Since early 2011, EFF has been closely following the FBI's work to build out its Next Generation Identification (NGI) biometrics database, which would replace and expand upon the Integrated Automated Fingerprint Identification System (IAFIS). The new program will include multiple biometric identifiers, such as iris scans, palm prints, face-recognition-ready photos, and voice data, and that information will be shared with other agencies at the local, state, federal and international levels. The face recognition component is set to launch in 2014.
"NGI will result in a massive expansion of government data collection for both criminal and noncriminal purposes," says EFF Staff Attorney Jennifer Lynch, who testified before the U.S. Senate on the privacy implications of facial recognition technology in July of last year. "Biometrics programs present critical threats to civil liberties and privacy. Face-recognition technology is among the most alarming new developments, because Americans cannot easily take precautions against the covert, remote, and mass capture of their images."
In the complaint filed with the U.S. District Court for the Northern District of California, EFF is asking a judge to enforce EFF's FOIA requests, which were sent to the FBI in June and July of last year. The information sought includes agreements and discussions between the FBI and various state agencies regarding the face-recognition program; records addressing the reliability of face-recognition technology; and documentation of the FBI's plan to merge civilian and criminal records in a single repository. EFF is also seeking disclosure of the total number of face-recognition capable records currently in the FBI's database, as well as the proposed number at deployment.
NGI will have an unprecedented impact on Americans' privacy interests, and yet the FBI has not updated its Privacy Impact Assessment since 2008, well before it built the system and signed agreements with several states for an early roll-out of the program.
"Before the federal government decides to expand its surveillance powers, there needs to be a public debate," Lynch says. "But there can be no public debate until the details of the program are presented to the public."
For the full complaint:
[https://www.eff.org/node/74758](https://www.eff.org/node/74758)
Contact:
Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
### Lawsuit Fighting Reference Uses Could Damage Fair Use
San Francisco - The Electronic Frontier Foundation (EFF) urged an appeals court today to affirm that the fair use doctrine protects the creation of an invaluable digital library.
For the past eight years, major university libraries have collaborated with Google to digitize their collections. One result has been the HathiTrust Digital Library (HDL). Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections. With the exception of some patrons who have disabilities, HDL does not allow users to access the digitized books in their entirety – it merely does a keyword search and delivers titles and page numbers as results, enabling students and others to find the book at a library or to purchase a copy.
The Authors Guild sued HathiTrust and several universities over the service, claiming that the digitization that led to the creation of the database violates their members' copyrights. A federal court in New York correctly disagreed with the Authors Guild, ruling that digitizing the books in order to enhance research and enable access is a clear legal fair use of copyrighted material. The Authors Guild has now taken its claims to the Second U.S Circuit Court of Appeals. In an amicus brief filed today, EFF argues that accepting the Authors Guild's wrongheaded arguments could hurt fair use, innovation, and the public interest.
"Fair use is a critical part of copyright law – ensuring that copyright serves, rather than thwarts, innovation," said EFF Intellectual Property Director Corynne McSherry. "This library gives scholars and students an unparalleled ability to search and access knowledge and gives authors new audiences for their works. It's precisely the kind of project that the fair use doctrine was designed to protect."
In particular, EFF urged the appeals court to reject an argument raised in another amicus brief from the Associated Press (AP) arguing that fair use should only protect copies that are somehow "expressive" and limited to "non-commercial" uses. But this would drastically narrow the scope of fair use protection. In our digital age, copying is an integral and inescapable part of many valuable technologies.
"After all, email, web browsers, search engines, and DVRs all work by copying data to the memory of a device. If that's not fair use, then we've got a clumsy and expensive technological future coming up," said Staff Attorney Daniel Nazer. "If the Authors Guild and the AP get their way, copyright law would become a roadblock to many of the benefits it was designed to promote."
Public Knowledge and the Center for Democracy and Technology joined EFF in today's amicus brief. Rochelle Woods and Deepak Gupta from the law firm of Farella Braun and Martel LLP submitted the brief on behalf of the public interest groups.
For the full amicus brief:
[https://www.eff.org/document/amicus-brief-appeals-court](https://www.eff.org/document/amicus-brief-appeals-court)
For more about Authors Guild v. Hathitrust:
[https://www.eff.org/cases/authors-guild-v-hathitrust](https://www.eff.org/cases/authors-guild-v-hathitrust)
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Daniel Nazer
Staff Attorney
Electronic Frontier Foundation
daniel@eff.org
### Campaign Will Use Crowd-Power and New Law to Invalidate Patent Trolls’ Claim
San Francisco - The patent trolls have gone far enough: Starting today, the Electronic Frontier Foundation (EFF) is mounting
[a new, focused campaign](https://www.eff.org/deeplinks/2013/05/help-save-podcasting%20) to bust the dangerous patent that a Texas company has been using to shakedown podcasters. EFF intends to challenge the original grant of that patent before the U.S. Patent and Trademark Office by proving that the company, Personal Audio, did not really invent anything new.
Claiming it owns the patent that broadly covers podcasting technology, Personal Audio is the classic example of a patent troll that neither makes nor sells anything, but uses its patent as a weapon to threaten lawsuits and extort settlement fees. This particular troll has bullied prominent podcasts and podcasters, including How Stuff Works and Adam Carolla, in addition to smaller podcasters working out of their own homes.
"Patent trolls have been wreaking havoc on innovative companies for some time now," said EFF Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "But this particular breed of troll—targeting end users, small businesses, startups, and even individuals like podcasters for simply using everyday products—is a disturbing new threat."
EFF is partnering with the Cyberlaw Clinic at Harvard's
[Berkman Center for Internet and Society](https://cyber.law.harvard.edu/) to use a new legal tool against this patent called the "inter partes review," which was introduced by the America Invents Act. The first step is to identify " [prior art](http://patents.stackexchange.com/questions/3884/call-for-prior-art-system-for-disseminating-media-content-representing-episodes%20)," or published examples of similar or identical ideas, that existed before October 2, 1996. EFF is putting out a call today to the podcasting community to spread the word and help us collect the prior art we need to fight this dangerous patent. EFF is also looking for [financial support](https://supporters.eff.org/donate/save-podcasting%20) to take on this challenge, which—even with pro bono help—will likely cost nearly $30,000.
"A podcaster working out of a garage is unlikely to have the financial resources to fight a lawsuit," said EFF Staff Attorney Daniel Nazer. "Patent trolls like Personal Audio know this and use the threat of ruinous litigation costs as a weapon. Defeating this patent at the PTO would put an end to Personal Audio's campaign."
Because of the deep and systemic problems in the American patent system, EFF is spearheading the Defend Innovation project to advocate for reform. EFF is asking the public to sign on to our petition at defendinnovation.org and to comment on seven recommended proposals we think would make the broken system work better for software. In the meantime, EFF is doing its best to rid the world of one more bad patent in the hands of a patent troll and help out podcasters who find themselves staring down the barrel of a gun.
For more on the Save Podcasting campaign:
[https://www.eff.org/deeplinks/2013/05/help-save-podcasting](https://www.eff.org/deeplinks/2013/05/help-save-podcasting)
For technical details of the search for prior art:
[ http://patents.stackexchange.com/questions/3884/call-for-prior-art-system-for-disseminating-media-content-representing-episodes](http://patents.stackexchange.com/questions/3884/call-for-prior-art-system-for-disseminating-media-content-representing-episodes)
Donate to fund this campaign:
[https://supporters.eff.org/donate/save-podcasting](https://supporters.eff.org/donate/save-podcasting)
Julie Samuels
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
[julie@eff.org](mailto:julie@eff.org)
Daniel Nazer
Staff Attorney
Electronic Frontier Foundation
[daniel@eff.org](mailto:daniel@eff.org)
### Dozens of Industry Leaders Argue APIs That Are Open Are Critical to Innovation, Interoperability
San Francisco - Dozens of computer scientists urged an appeals court today to block the copyright claims over application programming interfaces (APIs) in the Oracle v. Google court battle, arguing that APIs that are open are critical to innovation and interoperability in computers and computer systems.
The Electronic Frontier Foundation (EFF) represents the 32 scientists – including leaders like MS-DOS author Tim Paterson and ARPANET developer Larry Roberts – in the amicus brief filed in the U.S. Court of Appeals for the Federal Circuit today. The group urges the court to uphold a decision from U.S. District Judge William Alsup finding that APIs are not copyrightable, explaining that Oracle's attempt to over-extend copyright coverage in its case against Google was irreconcilable with the purpose of copyright law and the nature of computer science.
"The law is already clear that computer languages are mediums of communication and aren't copyrightable. Even though copyright might cover what was creatively written in the language, it doesn't cover functions that must all be written in the same way," said EFF Staff Attorney Julie Samuels. "APIs are similarly functional – they are specifications allowing programs to communicate with each other. As Judge Alsup found, under the law APIs are simply not copyrightable material."
Furthermore, as the scientists explain in today's brief, the real-world ramifications of copyrighting APIs would be severe. All software developers use APIs to make their software work with other software. For example, your Web browser uses APIs to work with various computer operating systems so it can open files and display windows on the screen. If APIs are copyrightable, then developers can control who can make interoperable software, blocking competitors and creative new products.
"Without the compatibility enabled by APIs that are open, we would not have the vibrant computer and Internet environment we experience today, with new products and services routinely changing the way we see and interact with the world," said EFF Fellow Michael Barclay. "APIs that are open spur the development of software, creating programs that the interface's original creator might never have envisioned. We hope the appeals court rejects Oracle's appeal in this case to protect technological innovation."
For the full amicus brief:
[https://www.eff.org/node/74381](https://www.eff.org/document/amicus-brief-computer-scientists)
For the full list of signatories:
[https://www.eff.org/cases/oracle-v-google/amici](https://www.eff.org/cases/oracle-v-google/amici)
Contacts:
Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org
Michael Barclay
Fellow
Electronic Frontier Foundation
michael@eff.org
### Draft Proposal from W3C Could Stymie Web Innovation
San Francisco - Today the Electronic Frontier Foundation (EFF) filed a formal objection to the inclusion of digital rights management (DRM) in HTML5, arguing that a draft proposal from the World Wide Web Consortium (W3C) could stymie Web innovation and block access to content for people across the globe.
The W3C's HTML working group is creating a technical standard for HTML5, an upcoming revision to the computer language that creates webpages and otherwise displays content online. The working group has accepted a draft that includes discussion of Encrypted Media Extensions (EME), which will hard-wire the requirements of DRM vendors into the HTML standard.
"This proposal stands apart from all other aspects of HTML standardization: it defines a new 'black box' for the entertainment industry, fenced off from control by the browser and end-user," said EFF International Director Danny O'Brien. "While this plan might soothe Hollywood content providers who are scared of technological evolution, it could also create serious impediments to interoperability and access for all."
DRM standards look like normal technical standards but turn out to have quite different qualities. They fail to implement their stated intention – protecting media – while dragging in legal mandates that chill the speech of technologists, lock down technology, and violate property rights by seizing control of personal computers from their owners. Accepting EME could lead to other rightsholders demanding the same privileges as Hollywood, leading to a Web where images and pages cannot be saved or searched, ads cannot be blocked, and innovative new browsers cannot compete without explicit permission from big content companies.
EFF filed this objection as its first act as a full member of W3C. EFF's goal is to broaden the discussion of the consequences of accepting DRM-based proposals like EME for the future of the Web.
"The W3C needs to develop a policy regarding DRM and similar proposals, or risk having its own work and the future of the Web become buried in the demands of businesses that would rather it never existed in the first place," said EFF Senior Staff Technologist Seth Schoen. "The EME proposal needs to be seen for what it is: a creation that will shut out open source developers and competition, throw away interoperability, and lock in legacy business models. This is the opposite of the fair use model that gave birth to the Web."
For EFF's full Formal Objection:
[https://www.eff.org/pages/drm/w3c-formal-objection-html-wg](https://www.eff.org/pages/drm/w3c-formal-objection-html-wg)
For more on DRM in HTML5:
[https://www.eff.org/deeplinks/2013/05/eff-joins-w3c-fight-drm](https://www.eff.org/deeplinks/2013/05/eff-joins-w3c-fight-drm)
Contacts:
Danny O'Brien
International Outreach Coordinator
Electronic Frontier Foundation
danny@eff.org
Seth Schoen
Senior Staff Technologist
Electronic Frontier Foundation
seth@eff.org
### 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](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
### Los Angeles Police Department and County Sheriff’s Department Must Release Data Under California Public Records Act
San Francisco - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Southern California (ACLU-SC) today jointly filed suit against two Los Angeles-area law-enforcement agencies over their failure to produce records related to the use of automatic license plate readers (ALPRs).
Mounted on squad cars and telephone poles, these sophisticated camera systems read license plates and record the time, date, and location a particular car was encountered. EFF and the ACLU-SC filed requests with the Los Angeles Police Department and the Los Angeles County Sheriff's Department under the California Public Records Act seeking documents relating to policy and training on ALPRs, as well as a week's worth of ALPR data collected by the agencies in 2012. While the sheriff and police departments produced some materials, they failed to provide documents related to sharing information with other agencies, and neither agency has produced the data collected during the one-week period.
"Location-based information like license plate data can be very revealing," said EFF Staff Attorney Jennifer Lynch. "By matching your car to a particular time, date and location — and building a database of that information over time — law enforcement can learn where you work and live, what doctor you go to, which religious services you attend, and who your friends are. The public needs access to data the police actually have collected to be able to make informed decisions about how ALPR systems can and can't be used."
ALPRs can record up to 14,000 plates during a single shift. According to a June 2012 story in LA Weekly, the sheriff and police departments conduct, on average, approximately 22 scans for every one of the 7 million vehicles registered in Los Angeles County. As of June, the departments reportedly logged more than 160 million data points. While the police can use this technology to match license plates against databases to find stolen or wanted cars, the systems currently record and store information on every car, even where there's no reason to think a car is connected to any crime.
"Police can and should treat location information from ALPRs like other sensitive information. They should retain it no longer than necessary to determine if it might be relevant to a crime and get a warrant if they need to keep it any longer," ACLU-SC Senior Staff Attorney Peter Bibring says. "They should limit who can access it, who they can share it with and create an oversight system to make sure the limits are followed."
The complaint was filed in Los Angeles County Superior Court. EFF and the ACLU have asked a judge to issue a writ directing the agencies to hand over all requested records and award appropriate legal fees.
For the full complaint:
[http://www.eff.org/document/aclu-sd-and-eff-v-lapd-and-lasd](http://www.eff.org/document/aclu-sd-and-eff-v-lapd-and-lasd)
### Contacts:
Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
[jlynch@eff.org](mailto:jlynch@eff.org)
Peter Bibring
Senior Staff Attorney
ACLU of Southern California
[pbibring@aclu-sc.org ](mailto:pbibring@aclu-sc.org )
### Annual Report Recognizes Service Providers' Commitment to Users in the Face of Government Data Demands
San Francisco - As you search the Internet, visit websites, and update your social media accounts, you entrust a wealth of data to service providers: your thoughts, your photos, your location, and much more. What happens when the government wants access to all of this information, held by companies like Google and Facebook and AT&T? Will these providers help you fight back against unfair demands for data about your private life?
Today the Electronic Frontier Foundation (EFF) releases its third annual report, "Who Has Your Back?," which looks at major technology service providers' commitment to users' rights in the face of government data demands. EFF's report examines 18 companies' terms of service, privacy policies, advocacy, and courtroom track records, awarding up to six gold stars for best practices in categories like "require a warrant for content," "tell users about government data demands," and "publish transparency reports."
"Transparency reports have become an industry standard practice among major technology companies since we started issuing this report in 2011," said EFF Senior Staff Attorney Marcia Hofmann. "Through those reports, we've learned more about law enforcement requests for user data. We publish this annual report to encourage companies to let users know how data flows to the government, and to encourage companies to stand up for their users."
EFF's report shows that more and more Internet companies are formally promising to give users notice about law enforcement requests for information unless prohibited by law or court order. We also found a dramatic increase in the number of companies publishing law enforcement guidelines for making data requests. This year, two companies—Twitter and Sonic.net—received a full six stars, while Verizon earned no stars.
"There's a lot to celebrate in this report, but also plenty of room for improvement," said EFF Staff Attorney Nate Cardozo. "Service providers hold huge amounts of our personal data, and the government shouldn't be able to fish around in this information without good reason and a court making sure there's no abuse. This report should be a wake-up call to Internet users that they need more protection from the companies they trust with their digital communications."
For the full report "Who Has Your Back?":
[https://www.eff.org/who-has-your-back-2013](https://www.eff.org/who-has-your-back-2013)
Contacts:
Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org
Nate Cardozo
Staff Attorney
Electronic Frontier Foundation
nate@eff.org
**Update:** *The original version of this press release said that Myspace did not receive any stars. However, since the publication of our original report, a representative from the company has notified us about previously published law enforcement guidelines and a court case in which Myspace fought for the rights of its users. Because those guidelines and court filings are publicly available, and because the guidelines make clear that Myspace requires a warrant for the content of communications, we have amended our report to give Myspace the three relevant stars.*
### EFF Outlines Five Ways the FAA Can Protect the Public and Ensure Transparency
San Francisco - The Federal Aviation Administration's (FAA's) proposed privacy requirements for domestic drone test sites are not robust enough to protect the public, the Electronic Frontier Foundation (EFF) argues in its official comments filed with the agency this week. EFF Staff Attorney Jennifer Lynch outlines five key recommendations to safeguard privacy and civil liberties while allowing unmanned-aerial-system operators to explore the potentials of the emerging technology.
"When it comes to drones, the FAA needs to examine privacy issues with the same rigor it applies to flight and mechanical safety," said Lynch, who has filed two successful lawsuits against the federal government over drone-related Freedom of Information Act requests. "Just as vague safety regulations for drones could result in damage to life or property, vague privacy measures could harm civil liberties."
President Barack Obama signed the FAA Modernization and Reform Act last year, which included a requirement that the agency start the process of integrating drones into the National Airspace system through a test-site program. The FAA plans to authorize six separate test sites for drones in the U.S. Mindful of the growing public interest in the civil-liberties implications of domestic aerial surveillance, the FAA recently released proposed privacy requirements for operators of these sites. However, the FAA's proposal falls short of truly protecting privacy for members of the general public who may be caught by the drones' surveillance cameras during test flights.
In the comments submitted today, EFF says:
1. The FAA should develop a model privacy policy and provide it to test-site operators.
2. Test-site operators should be required to report the surveillance and data-capturing capabilities of each drone.
3. Test-site operators should measure the surveillance capabilities and limits for each drone.
4. The FAA should not limit its privacy-protecting regulations to the test-site program but should extend them across its entire drone authorization process.
5. The public must have meaningful access to the wealth of drone data collected by the FAA.
"We're looking for specificity and transparency," Lynch said. "Testing sites should not only disclose what data they plan to collect, but what kind of data these drones are capable of collecting. And the public should have access to that information."
For the full comments submitted to the FAA:
[https://www.eff.org/document/effs-comments-faa](https://www.eff.org/document/effs-comments-faa)
For more information about EFF's work on drones:
[https://www.eff.org/foia/faa-drone-authorizations](https://www.eff.org/foia/faa-drone-authorizations)
Contact:
Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
### EFF Fights for Cell Phone Privacy in Washington State
San Francisco - The Electronic Frontier Foundation (EFF) urged the Washington State Supreme Court Monday to recognize that text messages are "the 21st Century phone call" and require that law enforcement officers obtain a warrant before reading texts on someone's phone.
"Text messages are a ubiquitous form of communication, and their context can be as private as any telephone conversation," said EFF Staff Attorney Hanni Fakhoury. "We use texts to talk to our wives and husbands, our kids, our co-workers, and more. Police should not be able to sift through these personal exchanges on a whim – they must show probable cause and get a warrant before accessing this information."
In this case, police seized a cell phone during a drug investigation and monitored incoming messages. Officers responded to several texts, setting up meetings that resulted in two arrests, without first getting a warrant. Prosecutors have argued that no warrant was required because there should be no expectation of privacy in text messages, as anyone can pick up someone else's phone and read what's stored there. But in two related amicus briefs filed Monday, EFF argues that searching the phone for the texts without a warrant clearly violates the Constitution.
"The state argues that just because someone can intercept a communication, you should reasonably expect that communication to be intercepted. That's a dangerous way to interpret the Fourth Amendment," said Fakhoury. "The prosecutors' theory would eviscerate any privacy protections in the digital age. We're asking the Washington State Supreme Court here to recognize what's at stake and to require a warrant before allowing officers to read text messages on a cell phone."
Venkat Balasubramani of FOCAL PLLC in Seattle, Washington, served as EFF's local counsel in the cases.
For the full amicus briefs:
[https://www.eff.org/cases/washington-state-text-message-privacy-cases](https://www.eff.org/cases/washington-state-text-message-privacy-cases)
Contacts:
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
### EFF Urges Appeals Court to Protect the Rights of TV Innovators
San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court Friday to protect the rights of start-up innovators working to improve TV viewing and other entertainment experiences, arguing that big content companies should not be allowed to block add-on technology with baseless copyright claims.
At issue in the 9th U.S. Circuit Court of Appeals is whether TV networks can shut down a TV streaming service called Aereokiller, which sends over-the-air television signals to users' personal computing devices. The networks claim that Aereokiller violates copyright by retransmitting their signals. In the amicus brief filed Friday, EFF asks the court to look to recent court rulings that have blocked TV networks' various attempts to quash new products and constrict viewers' rights.
"Many of the services that Hollywood is trying to shut down are simply conceptually moving the antenna that used to be on your roof to their roof," said EFF Staff Attorney Mitch Stoltz. "TV viewers have a right to choose when and how they watch free TV – and courts have recognized that. Networks can't block consumer choices just because they didn't think of it first and want a cut of the profits from someone else's idea."
EFF's brief argues that without consistent rulings supporting TV viewers' legal and customary rights, start-up innovators and others won't enter the market.
"This isn't just about the products and services that are being developed today," said Stoltz. "It's about what innovators could come up with tomorrow, if they aren't discouraged by TV networks trying to claim copyright infringement when it just doesn't apply. We're asking the court here to prevent Hollywood from twisting the law at the expense of viewers' customary rights."
For the full brief in this case:
[https://www.eff.org/document/amicus-brief-17](https://www.eff.org/document/amicus-brief-17)
Contact:
Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org
### SB 467 Requires Law Enforcement to Obtain a Warrant Before Seizing Private Electronic Communications
Sacramento -
[Senator Mark Leno](http://sd11.senate.ca.gov/news/2013-03-20-new-leno-legislation-protects-email-privacy) today announced the introduction of groundbreaking new legislation that protects email privacy. Senate Bill 467, sponsored by the Electronic Frontier Foundation (EFF), requires state law enforcement agencies to obtain a warrant before asking service providers to hand over a private citizen's emails.
"No law enforcement agency could obtain someone's mail or letters that were delivered to their home without first securing a search warrant, but that same protection is surprisingly not extended to our digital life," said Senator Leno, D-San Francisco. "Both state and federal privacy laws have failed to keep up with the modern electronic age, and government agencies are frequently able to access sensitive and personal information, including email, without adequate oversight. SB 467 repairs the existing holes in California's digital protection laws, ensuring that electronic communications can only be accessed by law enforcement with a warrant."
EFF has long been concerned with law enforcement claims that investigators do not need a search warrant to obtain any email that has been opened or has been stored on a server for 180 days. The U.S. Department of Justice's Office of Legal Policy recently announced it would support changes to federal law that would require a warrant in such cases. While this is a step in the right direction, updated state laws are still needed in order to protect consumers and the email services they use.
"California, the home of many technology companies, should be a leader in protecting the privacy of people's electronic communications," said EFF Staff Attorney Hanni Fakhoury. "Many of the state's technology companies have already indicated that they require a search warrant before disclosing the contents of communications. With SB 467, the warrant requirement becomes the status quo for all electronic communication providers and all law enforcement agencies across the state. We're happy to work with Senator Leno in ensuring our privacy protections keep up with the rapid changes in technology."
The bill is also supported by the ACLU of California.
"Californians shouldn't have to choose between using modern technology and protecting their privacy," said Nicole Ozer, Technology & Civil Liberties Policy Director of the ACLU of California. "SB 467 would ensure that content stored in the cloud receives the same level of protection as content stored on a laptop or in a desk drawer."
Contacts:
Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org
Ali Bay
Office of Senator Mark Leno
ali.bay@sen.ca.gov

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