The Indian Telecommunications Minister met on Monday afternoon with top officials of Internet companies and social media sites, including the Indian units of Facebook, Google, Microsoft, and Yahoo, to compel them to filter offensive content. The New York Times reported that Minister Kapil Sibal met with executives to discuss the possibility for their companies to create internal mechanisms that would prevent any comments the state deemed “disparaging, inflammatory or defamatory” towards political and religious figures.
The companies ultimately told Sibal that it would be impossible to put this in place, especially given the massive amount of data that they would have to oversee. In response to the companies’ position, Sibal declared that they would take policy measures to enact their strategy, though he wasn’t specific on what form this law would take. According to the New York Times, state officials there have already plans “to set up its own unit to monitor information posted on Web sites and social media sites.”
This was a follow-up to two previous meetings. In the first, six weeks ago, legal counsel from Facebook and top Internet service providers met with Sibal to address his concerns over a Facebook page that criticized Sonia Gandhi, president of the Congress Party. Sibal made clear in a second meeting in November that he expected the companies to create human-based, not technological, mechanisms to prescreen and block all “objectionable” material. Despite these repeated meetings and the Minister’s wish to see companies create voluntary systems to block content, the companies remained insistent they do not want to be responsible for deciding what content is appropriate or not appropriate for the Internet.
It is unclear whether the state will cite existing laws in order to legitimize these plans for blocking content. In the past decade, the Indian Parliament adopted the Information Technology Act (ITA) and subsequent amendments, as well as other administrative regulations called the Information Technology Rules (ITR) in order to enact stiffer policies to uphold copyright law in India. It is possible that these laws are used to monitor and block content with little or no oversight.
The Center for Internet and Society (CIS) has monitored content removal requests from the Indian state, comparing the Indian Department of Information (DIT) reports with Google’s transparency reports. They found that there was a big difference in the treatment of blocking versus content removal, as well as the much larger number of content removal requests as compared to blocking. This may indicate that while the ITA regulates blocking, it does not cover the forcible removal of content. CIS concludes from their analysis that “the DIT is not providing us all the relevant information on blocking, or is not following the law.”
While Indian authorities were not able to urge companies to create content blocking mechanisms, it is very possible that they may begin to legitimize their plans under the guise of copyright enforcement. It is currently unclear whether they have the legal mechanisms in place to legally censor content online in the name of political or religious defamation. As we have seen all over the world however, they may simply re-appropriate these existing laws in order to roll forward with their plans to censor Indian citizens at will.
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For ongoing Twitter updates on the story, follow the hashtag #KapilSibal
Related Issues: Free SpeechInternationalLast September, in a case initiated by the Belgian Anti-Piracy Federation (BAF), an Antwerp Court of Appeals ordered two major fixed broadband providers (Telenet and Belgacom) to block access to the Pirate Bay at the DNS level. In November, the BAF sent a letter to other Belgian ISPs, threatening legal action unless they also blocked access to the Pirate Bay.
Earlier this week, a Belgian Internet watchdog group (NURPA) reported that one of the three major mobile Internet providers in Belgium, Base, complied with the letter and voluntarily started blocking access to the Pirate Bay.1 Base denies these reports, but users who try to access the Pirate Bay are served a "stop page" with the following text, in Dutch, French, German, and English: "You have been redirected to this stop page because the website you are trying to visit offers content that is considered illegal according to Belgian legislation." The only way offered for the owner or administrator of the website to object is via fax.
This worrisome trend of voluntary blocking (not exclusive to Belgium) seems to be in sharp contrast with the more recent (November 24th) Scarlet v. Sabam decision by the European Court of Justice (ECJ). In this case — which originated in Belgium — the Court ruled that requiring ISPs to filter traffic over their network violates users’ privacy and their freedom to receive and impart information. Although the ECJ had not issued a final judgment at the time the Belgian case was decided, the Advocate General had already released an opinion.
The Belgian judge, though, deemed the case before the ECJ irrelevant, making a distinction between filtering and blocking. These two types of censorship often appear identical to the end user, but the court argued that they are different technically and legally. Filtering implies the monitoring of traffic in order to remove specific content. Blocking, on the other hand, would only require indiscriminately restricting access to a given domain. The Belgian (Pirate Bay) case concerned (DNS) blocking, whereas the European case concerned filtering. According to the Belgian judge, DNS blocking would not constrain fundamental liberties. But while blocking does not raise as many privacy concerns as filtering does, all other concerns remain very relevant. Without even going in to the dangers of interfering in such an essential component of the Internet, (DNS) blocking access to a website as a whole violates individual freedom to impart and receive information. It also ignores the fact that copyright is not an absolute right and is subject to important exceptions.
The ruling by the Antwerp court and the voluntary decision by mobile Internet provider Base clearly demonstrate the one-sidedness of the debate. Neither end-users nor civil society are consulted, and ISPs simply do not have the proper incentives to protect consumer’s rights. The economic impact of erasing a domain name in their database is negligible compared to having to filter all Internet traffic over their network. Especially when other ISPs are doing the same thing, it might make more sense to comply with right-holders breathing down your neck instead of respecting civil rights. At the moment, it is still unclear what impact the Scarlet v. Sabam case will have, but if we want to maintain a free and open Internet, we have to put important safeguards into place.
Thailand
Clicking “like” on Facebook in Thailand can potentially land you in prison. The Thai Minister of Information and Communication Technology declared last Tuesday that they will begin charging Facebook users for “liking” or sharing content that could be deemed offensive to the Thai throne, the sentence for which could run anywhere between three to 15 years in prison. Thailand has strict lèse-majesté laws that imprison individuals for criticizing or speaking ill of the throne to any extent. Since Thailand’s Computer Crime Act was enacted in 2007,1 Internet intermediaries have also come under fire for being responsible for hosting said offensive material. The Act gives authorities the ability to block so-called “harmful” websites and charge owners of these intermediary spaces for simply hosting the content. Not only are the provisions of this law dangerously vague, it allows authorities to enact harsh penalties to anyone who engages in online political debate.
The Thai government is making extensive use of this Act, going after Thai netizens that they accuse of speaking ill of the King and the regime. Human rights groups say nearly 300 people have been charged with lèse-majesté offenses since 2006. Just last week, a 61-year old retired truck driver battling mouth cancer was sentenced to 20 years in jail for sending text messages with supposed offensive content.
We reiterate that the charges against these individuals are not only gross violations of free speech and privacy rights, they are effectively impairing their society both economically and socially. The Thai state needs to recognize that they are playing with quicksand by enacting such strict, antiquated laws to enforce state nationalism.
Bahrain
This fall, 63 Bahraini students were expelled from school for “participating in unlicensed gatherings and marches,” the evidence of which was pulled from their Facebook accounts which they reportedly used to organize pro-democracy protests in February. Bahrain Polytechnic is a government-owned tertiary school that was created by a Royal Decree 2008. After the protests, the school required the students to sign a code of conduct asserting political activities needed to be kept off campus to ensure it remained a “neutral” and “safe” space.
The Ministry of Education’s investigation lasted four weeks, during which state investigators showed students paper records of their online activities on Facebook. The supposed offenses ranged from peacefully demonstrating at the protests at Pearl Roundabout to “liking” a page on Facebook. One Australian tutor at the school who happened to live right next to the protests was fired for filming the protests and sharing them on Youtube. They terminated the teacher’s contract for supposedly supporting pro-democracy protests.
Bahrain arrested several bloggers and social media users earlier this year, and even blocked access to individual Twitter accounts in early 2010. EFF joins Human Rights Watch in condemning the Bahraini Ministry of Education for targeting students, faculty, and staff for expressing their personal political beliefs.
Vietnam
Good news finally arrives from Vietnam this week, as a Vietnamese court reduced the jail sentence of blogger and human rights activist Professor Pham Minh Hoang from three years to 17 months. He’ll be released from jail in January 2012, followed by the 3 years of house arrest he was originally sentenced with in August of this year. As we reported last August, Hanoi authorities arrested Professor Huang and accused him of damaging their country’s image, and a judge ruled that Hoang had been involved in activities to overthrow the government. Professor Hoang had written 33 articles on his blog under the pseudonym Phan Kien Quoc, writing about various social and political issues in his country, including advocating the need for his country to stop attacking the right to freedom of expression and uphold human rights in their country.
There has been a recent wave of excessive jail sentences given to those criticizing the Vietnamese Communist regime. His sentence was light compared to others however, both because he is dual citizen with France, and because he admitted that although he was a member to Viet Tan, he was not acting under the instruction of the banned pro-democracy group, which the state considers to be a terrorist organization. Vietnam continues to violate its obligations as a signatory to the International Covenant on Civil and Political Rights, and even fails to follow its own constitutional articles guaranteeing freedom of expression and freedom of association.
In November, EFF joined human rights and digital freedom organizations in sending a joint letter to the Director General of Vietnam’s Ministry of Foreign Affairs denouncing the Vietnamese government’s imprisonment of bloggers. We urged them to recognize Pham Minh Hoang's human rights to freedom of expression and release him. We are heartened that this reduced sentence brings him several months closer to freedom.
United Kingdom
The British government published its new "cyber-security" strategy this week, which includes the use of bans on social networks such as Facebook and Twitter for those who have been accused of misusing the Internet for criminal means.
Even more alarming, the strategy includes a plan to introduce surveillance technology that could be used to inform the authorities when banned users are breaking the bail or sentencing conditions that have been set on their Internet use:
4.28 In addition, the Ministry of Justice and the Home Office will consider and scope the development of a new way of enforcing these orders, using ‘cyber-tags’ which are triggered by the offender breaching the conditions that have been put on their Internet use, and which will automatically inform the police or probation service. If the approach shows promise we will look at expanding cyber-sanctions to a wider group of offenders.
Prime Minister David Cameron's position on Internet freedom has been staggeringly inconsistent. On one hand, he has publicly pledged his commitment to a free and open Internet, saying "Governments mustn't use cyber security as an excuse for censorship." On the other, he has called on his government to explore the possiblility of shutting off access to social media in case of civil unrest. The proposed ban on social media use sounds like just another method of trying to achieve the kind of Internet censorship Cameron called for in the wake of the London riots.
Syria
More good news from Area SpA, an Italian company that had been helping to build an Internet surveillance system in Syria. The company has reportedly pulled out of the project. Area SpA's involvement first came to light as the result of a Bloomberg investigative report which found that the company had contracted with Syrian intelligence agents to develop an Internet surveillance system "with the power to intercept, scan and catalog virtually every e-mail that flows through the country." The Italian company has come under pressure from human rights groups to end their involvement in the project. We're glad to see that the pressure has worked.
Syria's existing Internet surveillance systems, which include hardware from Silicon Valley-based Blue Coat, have aided President Bashar al-Assad's regime in his crackdown on protest. More than 100 Syrians have died in detention, and information gathered through Area SpA's Internet surveillance system would have been used against people being detained and tortured, according to Nadim Houry, senior Human Rights Watch researcher for the Middle East and North Africa.
An official statement from Area SpA claims that the system they had been contracted to work on was never completed, had never been operational, and as a result, could not have contributed to any repressive actions.
Myanmar
Last of all, more evidence has come to light indicating that Blue Coat's Internet surveillance tools are being used in Myanmar/Burma. Citizen Labs' original report, which described the use of Blue Coat devices in Syria and Myanmar, prompted an investigation by the U.S. Department of Commerce to determine if the company had prior knowledge that its equipment was being used by the Syrian government. The additional evidence gathered by Citizen Lab provides further confirmation that Blue Coat devices are currently being used in Myanamar. A message displayed by Burmese ISP Yatanarpon Teleport references Blue Coat in the URL and is consistent with the way that Blue Coat devices display notifications to users. Combined with the evidence presented in the report, these findings present a strong case that Blue Coat devices are actively being used in Myanmar.
Myanmar, which is governed by a military junta, is on a list of countries with which the U.S. government carefully resticts trade, but it is unclear if the sale of Blue Coat devices to Myanmar breaches these restrictions. Internet access is Myanmar is heavily censored. During a violent crackdown on protest in 2007, Myanmar became the first country to shut off its Internet entirely. Strong evidence that Blue Coat devices are in use in Myanmar is the first step in holding the Silicon Valley-based company accountable for contributing to Internet surveillance and political repression.
The Association of American Publishers and the Recording Industry Association of America have decided to cozy up to a copyright troll, filing an amicus brief in the Ninth Circuit appeal of Righthaven v. Hoehn. The Hoehn case is one of many decisions where a district court dismissed the case brought by copyright troll Righthaven. Indeed, Righthaven has lost on the merits every single time a court has considered its arguments (before six judges and counting). In Hoehn, the court correctly found both that Righthaven did not own the Las Vegas Review-Journal news article at issue and that his use was a fair use under copyright law.
The AAP and RIAA do not weigh in on Righthaven's sham copyright assignment from Stephens Media, the publisher of the Review-Journal. Rather, they devote their brief to civil proceedure, arguing it was error for the court to even consider whether the use was fair. They assert that the problem was "relying upon Righthaven ... to rebut the defendant's assertions" on market harm, instead of relying on Stephens Media, the true owner.
This conclusion is a bit dubious. In another Righthaven troll case, EFF represents Democratic Underground, who counterclaimed for declaratory relief against Stephens Media, the publisher of the Review-Journal articles. Faced with our Motion for Summary Judgment on fair use, Stephens Media conceded that the use was fair.
In Hoehn, Democratic Underground, and other Righthaven cases, the use was a non-infringing fair use under the copyright law. That conclusion stems not from who argues, but from the Copyright Act and the caselaw that allow for certain uses without authorization of the copyright owner. The AAP and RIAA are upset not becasue the court failed to follow their view of civil procedure, but becasue they want to take a good fair use case—what they call a "disturbing precedent"—off the books.
Files: RIAA and AAP's motion for leave to file amicus brief RIAA and AAP amicus briefYesterday, EFF asked the U.S. Copyright Office to grant an exemption to the Digital Millennium Copyright Act for “jailbreaking” smart phones, tablets, and video game consoles. The exemptions are designed to dispel any legal clouds that might prevent users from running applications and operating systems that aren’t approved by the device manufacturer. The exemptions stem from section 1201 of the DMCA, which prohibits circumvention of “a technological measure that effectively controls access to a work protected under this title.”
In 2009, over strident opposition from Apple, EFF won an exemption from the Copyright Office for users who wish to jailbreak iPhones and other smartphones. Due in part to this ruling, a vibrant jailbreaking community has developed online that has immeasurably improved innovation, security, and privacy in these devices.
So why might Apple and other manufacturers still oppose the process? That’s a great question. When Apple first fought one's legal ability to jailbreak, they claimed it would cut into their business model and ruin their ability to make money. But Apple profits are at an all-time high by every relevant metric.
In fact, rather than hurting companies like Apple, the jailbreaking community often ends up helping them, as Apple and other manufacturers later adopt many features they rejected at first. Let’s take a look back at all the benefits jailbreaking has brought both manufacturers and users of smartphones, and why they should be expanded to tablets and video game consoles like the PlayStation 3, Nintendo Wii, and Xbox 360.
Innovation
By all accounts, the jailbreaking community has greatly improved smartphone usability. For example, the community developed applications—first rejected by Apple—that allowed older versions of the iPhone to record video. Jailbreakers were also the first to successfully configure keyboards to wirelessly connect with the smartphone. Apple later adopted both of these features.
This pattern of imitation has been followed in a host of other innovations introduced by the jailbreaking community stretching from the design of the user interface to the management of applications on the phone. As David Kravets of Wired said, “those hacks include pulldown notifications, home-screen camera access and wireless syncing,” to name a few.
Security
Security fixes developed by the jailbreaking community protect smartphone users when the manufacturer is slow to fix vulnerabilities or doesn’t fix them at all.
When a security flaw was discovered when iPhone’s web browser opened PDF files, Apple was slow to patch it. Users who didn’t want to wait for the manufacturer to fix the problem had a better way to protect themselves: jailbreak their phones to install an “unauthorized” patch created by an independent developer.
But the 2011 DigiNotar debacle is the clearest example of why jailbreaking is so vital. Until recently, DigiNotar was a certificate authority—an organization that issues digital certificates used to authenticate and secure communications between various services online, such as credit card transactions. But in September, it was hacked and started issuing fraudulent certificates, allowing malicious users to compromise devices and services. Early versions of Android didn’t update automatically, leaving users with older operating systems no recourse except to jailbreak their phones so they could protect themselves.
Privacy
In an era of increased worries about privacy on mobile devices, the jailbreaking community has also been vital in securing users’ privacy when manufacturers won’t.
Jailbreakers were the first to introduce an unauthorized app on the iPhone that hid text messages from automatically appearing on the front screen for anyone to see who was nearby. Jailbreakers were also responsible for introducing a patch that prevented Apple's unauthorized logging of detailed location data on iPhones. Similarly, on the Android, an unauthorized application called LBE Privacy Guard allows for personal research and monitoring of sensitive data that third-party applications may try to access. But these privacy-protective applications are only available to users who jailbreak their devices.
The popularity of tablets has exploded over the past few years, and EFF wants users of devices such as the iPad and NOOK to have the same benefits as smartphone users have enjoyed for the past three years.
But that’s not all. We are also applying for an exemption for video game consoles.
Video Game Consoles
Manufacturers of video game consoles like the PlayStation 3, Xbox, and Nintendo Wii also limit users’ operating system and software options, even when there is no evidence that other programs will infringe copyright. Our exemption would allow users to run the operating system of their choice on their consoles, as well as “homebrew” applications.
Video game consoles have powerful computer processors that can allow a user to run them as an inexpensive alternative to a desktop. Researchers, and even the U.S. military, turned clusters of PS3s into powerful supercomputers back when Sony supported the installation of alternative operating systems. But Sony axed that option with a 2010 firmware update, and PS3s can no longer run Linux without being jailbroken. Indeed, earlier this year Sony went so far as to sue several researchers for publishing information about security holes that would let people install and run Linux on their own PS3s. We hope the exemption we’re seeking will clarify that people can run the operating system and applications of their choice on their own boxes.
EFF implores Apple, Sony, and others to support these exceptions to the DMCA to improve user experience and keep their users’ information private and secure.
Related Issues: Free SpeechDRMDMCA
Just last year, the Humble Indie Bundle blazed onto the gaming scene with what seemed like an impossible business model: allow customers to pay what they want for DRM-free games, and let them choose how to distribute their contribution between the developers, the organizers, and two worthy tech charities. People supported EFF for online rights protection and Child's Play, which supplies games, toys, books, and cash to children’s hospitals. The result has been nothing short of miraculous, and we are happy to announce that the digital goodness is back with The Humble Frozen Synapse Bundle!
This iteration features the innovative tactical strategy game Frozen Synapse plus the game soundtrack. To sweeten the pot, customers who choose to give more than the average amount will also receive the entire Humble Frozenbyte Bundle suite, including Trine, Shadowgrounds: Survivor, Shadowgrounds, Splot, and Jack Claw!
We at EFF would like to extend our sincere gratitude to the generous gamers and forward-thinking indie game developers who have proven that a business can have a conscience, satisfy its customers, and thrive.
In what is becoming a well-settled pattern, Righthaven again finds itself on the losing end of a motion, with its case thrown out and owing the defendant – here, Leland Wolf, proprietor of the It Makes Sense Blog – costs and attorneys' fees for bringing a baseless copyright case. The lawsuit, Righthaven v. Wolf, is also notable for being the leading case among more than 50 that were filed in Colorado. Pending a motion to dismiss, the Colorado court stayed the remaining cases. With this ruling, the court has hopefully rung the death knell for the other remaining live cases in that district (joining the Nevada cases that have also been dismissed.)
Some background: In March, Righthaven sued Mr. Wolf for alleging infringing a Denver Post photograph titled “TSA Agent performs enhanced pat-downs," by virtue of a parody of the photo posted on his blog. Mr. Wolf moved to dismiss the case for lack of subject matter jurisdiction; EFF filed an amicus brief supporting that motion, explaining that Righthaven lacks ownership of any exclusive right granted under Section 106 of the Copyright Act.
Judge John L. Kane agreed, holding that Righthaven assigned to the Denver Post’s parent “the bare right to sue for infringement – no more, no less.” As such, Righthaven was neither a “legal owner” nor a “beneficial owner” of the copyright, and consequently could not bring a suit under the Copyright Act.
To its credit, the court also recognized the enormous pressure the prospect of statutory damages (on top of the expense of litigation) can place on defendants, even those with meritorious defenses, and called out Righthaven’s business model for the settlement mill that it tried to be:
[A] party with a bare right to sue may file numerous infringement actions of questionable merit with the intention of extorting settlement agreements from innocent users. This possibility becomes even more likely when the financial viability of the entity filing suit depends upon the proceeds from settlement agreements and infringement suits. Even though copyright law expressly provides for an award of costs and reasonable attorney fees to a party prevailing in its defense of a meritless infringement action, the economic realities of securing counsel and paying in advance the costs of litigation turns this remedy into a Potemkin Village. Both fundamentally and practically, the reality is at odds with the constitutional prioritization of public access to copyrighted works.
The court’s opinion also highlighted the important balance that the copyright laws are intended to protect. Specifically,
[C]opyright law necessarily balances the derivative goals of rewarding the creative labor of authors of original works with the primary goal of promoting further creativity by allowing public access to copyrighted works.
We are pleased that the Court refused to allow Righthaven to proceed with a lawsuit based on a copyright that it never owned and never had any plans to exploit. Finding otherwise would frustrate the important balance the court highlighted, and “the public interest in access to copyrighted materials.” Well done, Judge Kane.
Books are books whether we read them in a library or on a Kindle or iPad, but California laws are lagging when it comes to protecting reader privacy in the digital age. That's why EFF is a supporter of the Reader Privacy Act, a bill that has passed the California legislature and is awaiting Governor Brown's signature to become law.
Who's looking over Californians' digital shoulder and why does it matter? You can take our quiz to find out what's at risk -- and how Californians can protect their private reading records. Then tell Governor Brown to sign the Reader Privacy Act to ensure Californians don’t have to compromise their privacy when downloading electronic books, using online book services or even buying books from their local bookstore.
San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against the Office of the Director of National Intelligence (ODNI) demanding records of who is on the Intelligence Oversight Board (IOB) -- the presidentially appointed, civilian panel in charge of reviewing all misconduct reports for American intelligence agencies.
The IOB is supposed to alert the president and attorney general when it spots behavior that is unlawful or contrary to executive order. However, in his nearly three years in office, President Obama has not yet announced any appointments to the IOB. EFF's suit comes after the ODNI refused to respond to a Freedom of Information Act (FOIA) request for membership, vacancies, and other information about the IOB made earlier this year.
"The IOB has a critically important mission – civilian oversight of America's intelligence activities. The board exists to make sure government agencies are not overstepping their authority and abusing citizens' rights," said EFF Open Government Legal Fellow Mark Rumold. "History has shown that intelligence agencies overseeing their own behavior is like the fox guarding the henhouse. If the IOB is ineffective, impaired, or short-staffed, that's information Americans need to know."
EFF's ongoing FOIA litigation work has already uncovered widespread violations in intelligence investigations. Most recently, EFF revealed that the U.S. Army issued three National Security Letters (NSLs) for phone records, even though the law authorizes only the FBI to make these extraordinary requests for information. EFF also obtained documents detailing how the Army improperly attempted to investigate participants at a law school conference on Islamic law.
"We're trying to create a picture of the federal government's intelligence violations as Congress considers updates and changes to current surveillance law and oversight," said EFF Staff Attorney Jennifer Lynch. "Part of that picture is who is on the IOB. We're asking the government to follow the law and release the records on IOB membership."
For the full complaint in EFF v. ODNI:
https://www.eff.org/files/filenode/FOIA_IOB/ODNIIOBComplaint_92711.pdf
For more on the Defense Department intelligence violations:
https://www.eff.org/foia/intelligence-agencies-misconduct
Contacts:
Mark Rumold
Open Government Legal Fellow
Electronic Frontier Foundation
mark@eff.org
Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
EFF has long complained about export restrictions by the U.S. Departments of Treasury and Commerce that deny citizens access to vital communications tools. In the past, this has affected, among others, Zimbabwean activists trying to obtain hosting providers, Syrian businesspeople networking on LinkedIn, and ordinary Iranians trying to download web browsers.
The government has been responding, albeit in piecemeal fashion: in 2010, technology companies were granted a general license from the Department of Treasury’s Office of Foreign Assets Control (OFAC) to export communications tools that could “boost Internet-based communication” and the “free flow of information” Iranian, Sudanese, and Cuban citizens – but since then we’ve seen a wave of democracy activism reach Syria too, something EFF commented upon in July.
Syria Two-Step
Now we've seen some movement on Syria, but not enough. On August 18, amidst increasing regime violence toward opposition forces, the White House issued an Executive Order blocking a new range of transactions, including (Section 2(b)) “the exportation, re-exportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any services to Syria,” in light of the Syrian government’s escalating violence against civilians. This seemed like very bad news for Syrians who want to use communications tools to help with the protests.
Fortunately, recognizing the importance of communications tools and social networks to Syrian activists, the State Department’s Office of Foreign Assets Control (OFAC) quickly issued a general license allowing the export of “certain services incident to Internet-based communications.” The license specifically notes that transactions that are not otherwise exempt from certain earlier prohibitions, and that are related to the exchange of personal communications over the Internet, are permitted. Examples specifically laid out in the license include instant messaging, chat and email, social networking, photo- and video-sharing, web browsing, and blogging. The license also lays out what is not authorized for exportation, and while the language is a little unclear, it appears to allow export of technologies and services for all purposes other than those for commercial endeavors – so democracy activists should be in the clear.
But the story doesn’t end there. Restrictions from the Department of Commerce’s Bureau of Industry and Security (BIS) still appear to prevent communications tools and services from being exported to Syrians without a license. We think that because of these restrictions, Syrians still cannot access Google products Chrome and Earth, cannot download Java, among various other tools, and cannot use hosting services like Rackspace, SuperGreenHosting and others.
So the Treasury Department’s OFAC is out of the way, but the Commerce Department’s BIS restrictions remain, meaning that companies are still blocking certain communications tools from getting to Syrians. And until the government makes the bigger step of stopping the piecemeal nature of their relaxation of restrictions, we’ll have the same problems we’ve long complained about. These sorts of export restrictions are overbroad and contain elements which have no effect on the Syrian regime, while preventing Syrian citizens from accessing a wealth of tools that are available to their activist counterparts in neighboring countries and around the world. Furthermore, the penalties that result in violations of the regulations can be severe, so amidst confusing regulations, companies appear to be implementing broad restrictions on their services rather than run any risk. This happened recently when the open-source platform SourceForge blocked the IP addresses of users in five sanctioned countries.
What Needs to Happen
Two things ought to be done here, as soon as possible. First, and most importantly, the government -- the whole government -- should remove the license requirements and restrictions for communications technologies used by democracy activists. In the short term this should happen for Syria, in light of the ongoing struggle there. In the longer term, it’s time for the U.S. to stop this piecemeal approach and affirmatively allow unlicensed distribution of communications tools and services to people in all countries of the world.
Second, companies hesitant about allowing Syrians to use communications tools and services should take the simple steps necessary to seek a BIS license. While we don't think that such licenses should be required, the process is in fact quite simple, and frankly, the Syrians cannot wait. A company that wishes to export to Syria can file an online application with the Commerce Department’s Bureau of Industry and Security (BIS) for a license, which then should be resolved within 90 days. While registration is required before applying, any company that has ever gotten an export license before is likely already registered. Alternatively, companies may also request “interpretative guidance” as to whether or not they require a license from BIS, which takes only 30 days.
EFF Wants to Help
Given the situation on the ground in Syria, we need to focus there first. We reiterate our call for the Obama administration to affirmatively make clear throughout its various agencies that providing digital communications and information tools to citizens around the world, especially those under repressive governments, is not only legal, but encouraged. And in the meantime, we challenge those companies who are concerned about the BIS restrictions to take the simple steps necessary to apply for a license. In fact, we think this is so important that EFF would be willing to help a company that wants to take these steps but doesn’t have the resources to do it. Companies should contact EFF's Legal Director, Cindy@eff.org, if you'd like our help.
Sign now and we will add your name to this petition and also send a letter to your Representatives and Senators in time for the 25th anniversary of ECPA being signed into law:
Petiton language:
The government should be required to go to a judge and get a warrant before it can read our email, access private photographs and documents we store online, or track our location using our mobile phones. Please support legislation that would update the Electronic Communications Privacy Act of 1986 (ECPA) to require warrants for this sensitive information and to require the government to report publicly on the use of its surveillance powers.
ECPA was forward-looking when it was signed into law in October of 1986, considering that the World Wide Web hadn't even been invented yet. But now, ECPA has become outdated. The privacy standards that it applies to new technologies are unclear and weak. For example, the law doesn't specifically address cell phone location tracking at all, and it allows the government to seize most emails without ever having to go to a judge. Meanwhile, no one is perfectly sure how it applies to newer online services like social networks and search engines.
This gap between the law and the technology ultimately leaves us all at risk. Add your name now to sign the petition supporting ECPA reform, and feel free to add a personalized intro to the text below that will be sent to your legislators before the 25th anniversary of ECPA.
San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court in an amicus brief today to order the return of two domain names seized by the U.S. government in violation of the First Amendment.
The domain names -- Rojadirecta.com and Rojadirecta.org, owned by Spanish company Puerto 80 -- were seized by U.S. Immigration and Customs Enforcement (ICE) as part of "Operation in Our Sites," an initiative ICE claims will help stop piracy. It appears ICE targeted the sites because they contained links to live sport video streams, but the domain seizures impeded access to all of the content on the websites, including obviously non-infringing content like user-created forums, discussions, and technical tutorials. Prior to the seizure, Spanish courts found that Puerto 80 had not violated copyright law.
"Domain name seizures are blunt instruments that cause unacceptable collateral damage to free speech rights," said EFF Senior Staff Attorney Matt Zimmerman. "Web site operators must have the confidence that government actions ostensibly targeting copyright infringement are undertaken legally. We urge the Court of Appeals to ensure that that happens."
Puerto 80 first tried to work with ICE and other U.S. government authorities to resolve the matter without court involvement, but when that was unsuccessful, petitioned the district court to return the domain names. The judge rejected the request, and so Puerto 80 appealed to the 2nd U.S. Circuit Court of Appeals.
"ICE's domain name seizures, including this one, are occurring without meaningful court oversight, with no chance for the targets to defend themselves before their websites are taken down and a highly cumbersome process for challenge afterwards," said EFF Intellectual Property Director Corynne McSherry. "The government should stop these seizures until they comply with the law."
The Center for Democracy and Technology and Public Knowledge joined EFF's amicus brief.
For the full amicus brief:
https://www.eff.org/files/filenode/puerto80_v_US/rojaamicus92311.pdf
For more on Puerto 80 v. U.S.:
https://www.eff.org/cases/puerto-80-v-us
Contacts:
Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
Yesterday the Senate Judiciary Committee approved a trio of data security and data breach notification bills. One of the bills, which was sponsored by Committee Chairman Senator Leahy, includes a crucial amendment [pdf] to clarify that it's not illegal under the notoriously vague Computer Fraud and Abuse Act to violate agreements like website terms of service or acceptable use policies.
A bipartisan coalition of senators (including Chairman Leahy himself) voted for the amendment to the anti-hacking law, which private litigants and prosecutors alike have creatively used to try to punish violations of terms of use over the past few years in cases like United States v. Drew, Facebook v. Power Ventures, United States v. Lowson, and United States v. Nosal.
EFF, along with a group of civil liberties organizations and scholars, has twice urged [pdfs] the committee to ensure the CFAA doesn't punish ordinary computer users who happen to breach terms of use.
EFF is thankful to Senators Franken and Grassley for introducing this important amendment, which we believe is a huge step in the right direction. But the legislation could be better still. As the bill is currently written, government employees who violate employment agreements remain vulnerable to contract-based prosecutions under the CFAA. We urge Congress to protect all computer users against such charges, no matter where they work.
Earlier this week, digital activists alerted us to a concerning situation in Austin, Texas: officers at the local police department had announced a plan to search out all of the individuals running open wifi connections in Austin and warn them about potential dangers of running an open network. Thankfully, quick mobilization by our friends at EFF Austin helped stall this plan before it could take effect.
The officers at the Austin Police Department reportedly planned to seek out open wifi networks and then "make contact with residents who have open wireless connections and teach them the importance of securing them." They listed concerns such as exceeding the number of connections permitted by your ISP or being vulnerable to having someone piggy-back on your Internet connection to engage in illegal activity. To us, the police officers' plan was basically wardriving coupled with unsolicited scare-tactics from law enforcement agents. We’re also skeptical about the police’s role in educating users about ISP terms of service, which we submit is hardly the best use of law enforcement’s limited resources.
We were particularly concerned and disappointed by the Austin Police Department’s bleak characterization of open wifi. While the APD officers were keen to educate users about the potential negative ramifications of running an open wifi network, they failed to let people know that there are numerous societal benefits to opening your network. Anyone who has been lost in a city wishing they could snag an Internet connection for a map can attest to the benefits of having an open network connection. And many others, like security expert Bruce Schneier, have called for open wifi because it’s just plain polite.
We echo EFF Austin's comments on this issue:
Missing from the cited analysis is any recognition of potential benefits to be gained from publicly sharing one’s wireless access point. Lately, the virtues of contributing to any shared commons tends to be overshadowed by fears of bad actors (both real and imagined).
As we’ve discussed before, the current state of closed wifi networkings is a tragedy of the commons. If people had mechanisms for opening their wireless connections without jeopardizing bandwidth or privacy, we could all enjoy a world where people in most urban or semi-urban places could easily access the Internet, and even rural areas could be dotted with open networks. That’s why EFF has called for an open wifi movement—advocating for a world in which people could share their wifi connections with others without excessive burdens on their bandwidth or increased security risks. Our movement needs both technical solutions and a shift in social expectations. We’re pleased that a coalition of interested groups and technologists has begun to form around this issue, and we’re looking forward to launching a joint effort in the coming months.
For now, we urge the Austin Police Department to keep in mind the myriad benefits of open and freely available Internet access to the people of Austin.
This week brings new restrictions in Syria and Pakistan, while watchdog group Freedom House releases a new brief on the growing challenges to Internet freedom.
Syria Blocks WordPress
This has been a tumultuous year for Syrians and for the Syrian Internet. In response to protests beginning in February, the Syrian government unblocked Facebook, Blogspot, and YouTube for the first time since 2007. While some observers saw it as a move toward a freer Internet, others viewed it as better enabling surveillance; the latter turned out to be right.
Now, amidst a new wave of protests, the Syrian government has reverted to their old methods, blocking WordPress on at least one ISP. But as one circumvention-savvy Syrian Twitter user said, "They blocked WordPress… as if people are still using the Syrian proxy." If you want to help support Syrian Internet users, one thing you can do is set up a Tor relay.
Pakistan Inches Closer to Facebook Ban
Pakistan, no stranger to Internet censorship, has made new moves this week to block Facebook and other social sites. First, Interior Minister Rehman Malik threatened to block Google and YouTube, saying that if the companies weren't willing to help Pakistan fight terrorism, then the country would have to resort to blocking (ignoring, of course, the fact that Pakistanis are well-versed in circumvention technology).
Then, as the result of a previously filed petition, the Lahore High Court ordered the Ministry of Information and Technology to block Facebook, on the grounds that "Islamic values are being derogated in the name of information that is hurting feeling of billions of Muslims." Facebook famously refused to remove cartoons depicting the Prophet Mohammed in May 2010, resulting in temporary bans on Facebook in Pakistan and several other countries. Free expression activists in the country--who reported a temporary outage of Facebook and Twitter early Friday--have stated that blocking Facebook will "affect civil liberties, [as well as] minorities, and human rights defenders" that use the site for their work.
For a local take on what's happening in Pakistan, editor Jahanzaib Haque has an opinion piece in the Express Tribune, taking a look at the various ways in which Pakistani authorities are trying to curb speech. Haque writes:
All the government is actually doing — by condoning this across-the-board banning of sites and monitoring in cyberspace — is stepping on the rights of its citizens, and impinging on their freedom of information and expression, and privacy.
Freedom House issues new report on growing challenges to Internet freedom
Freedom House is a watchdog group that issues yearly reports on the state of Internet freedom worldwide. Today, in anticipation of the upcoming Internet Governance Forum, they've released a brief by Daniel Calingaert, Deputy Director of Programs for the organization, on the growing challenges to Internet freedom.
Highlighting important challenges to free expression, such as "just-in-time" blocking, intermediary liability, surveillance, and government-enabled cyberattacks, Calingaert makes several recommendations to the U.S. and European governments to strengthen Internet freedom. Namely, he recommends:
EFF shares several of Freedom House's concerns and are thrilled to see discussions taking place around these issues, particularly the export of surveillance and censorship technology, an issue that we're currently tackling as well.
Join the Electronic Frontier Foundation (EFF) and Technology Liberation Front (TLF) for a special joint happy hour this Wednesday, September 14th in Washington DC!
EFF Senior Staff Attorney Kevin Bankston, who just argued the Jewel v NSA warrantless wiretapping case in front of the Ninth Circuit Court of Appeals, will be in DC working to advance EFF's legislative priorities like fighting the new mandatory data retention bill and pushing for an upgrade to electronic privacy law. He hopes to see as many of you as he can while he's there!
Speakeasy/Alcohol Liberation Front: Washington DC
EFF & TLF Happy Hour
Wednesday, September 14th, 2011 from 5:30-8 PM
Find us at Johnny's Half Shell on Capitol Hill! For questions please contact membership@eff.org. Attendees must be 21 or older. No-host bar. Space is limited.
Johnny's Half Shell
400 North Capitol Street NW
Washington, DC 20001
202-737-0400
About TLF:
Founded in 2005, the Technology Liberation Front is a group tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. In the spirit of our light-hearted brand, we hold Alcohol Liberation Fronts from time to time to celebrate both technologies of freedom and the freedom of technologies.
About EFF:
EFF's Speakeasy events are informal gatherings that give you a chance to mingle with local members and meet the people behind the world's leading digital civil liberties organization. And it is also our chance to meet the EFF members who make this work possible.
See you there!
Today, Northern District of Texas District Court Judge David C. Godbey granted EFF's and Public Citizen's sanctions motion against Evan Stone, attorney for Mick Haig Productions, who improperly issued subpoenas to ISPs without court permission in order to obtain the identities of alleged file sharers. The court's blistering opinion speaks for itself, and should be read in full. The court includes a brief overview of its findings thusly:
To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed [EFF and Public Citizen] to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the Court was taking too long to make a decision. All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions.
We agree.
In keeping with a growing trend, this week Federal Judge Bernard Zimmerman of the Northern District of California severed 5,010 Doe Defendants from a single case—effectively dismissing all but one defendant. EFF participated in the case as amicus.
This case, like many we’ve seen around the country, involved a pornographic work. Plaintiff sued more than 5,000 individuals anonymously based only on their ISP addresses, for allegedly exchanging an infringing file over a BitTorrent network. The copyright owner claimed that participation in BitTorrent “swarm” was a form of conspiracy, meaning it could sue everyone at once in California.
The court disagreed, vehemently, but that may not be the most notable aspect of the ruling. At least as remarkable is the court’s concern that mass copyright litigation is not really “litigation” but rather gaming of the judicial system to extract settlements. Discussing various public reports about copyright troll practices, for example, the court noted:
Article 1, section 8 of the Constitution authorizes Congress to enact copyright laws "to promote the Progress of Science and the useful Arts." If all the concerns about these mass Doe lawsuits are true, it appears that the copyright laws are being used as part of a massive collection scheme and not to promote useful arts.
The court’s analysis stressed the unfair pressure mass copyright litigation puts on defendants scattered all over the country:
Plaintiff, well aware of the difficulties out-of-state and out-of-district defendants would face if required to appear in San Francisco, has nonetheless sent them settlement demands which apparently inform them that they have been sued in this District. The defendants are left with a decision to defend themselves in San Francisco or hire an attorney to do so. This does not comport with the “principles of fundamental fairness,” . . ..
The ruling also noted the “logistical nightmare” these lawsuits create for courts, concluding:
[P]laintiff’s desire to enforce its copyright in what it asserts is a cost-effective manner does not justify perverting the joinder rules to create the management and logistical problems discussed above and then offer to settle with Doe defendants so that they can avoid digging themselves out of the morass plaintiff is creating.
Well said.
Unfortunately, the plaintiff in this case has had access to the defendants’ information for months, and has allegedly already settled with about 70 individuals. But even here there is some good news: the judge ordered the plaintiff to inform all defendants (except for the one that remains in the case) that they have been severed from the case by September 20, 2011. This should allow these 5,000 individuals to breathe (at least temporarily) a sigh of relief.
We hope more courts will follow Judge Zimmerman’s lead and help put a stop to these abusive lawsuits.
EFF is sending an open letter to the Korean Communications Standards Commission condemning attempts to shut the public out of their work and urging them to embrace online freedom of expression.
In South Korea, even the censors are being censored. Professor K.S. Park, who sits on South Korea’s nine-member Internet content regulatory board, has found his own blog under threat of censorship when he used it as platform to speak out for transparency and free expression.
South Korea is one of few global democracies that has enacted substantial controls on online communications. Earlier, the country’s Telecommunications Business Act (1991), which states that ‘‘a person in use of telecommunications shall not make communications with contents that harm the public peace and order or social morals and good customs”, as well as the Information and Communication Ethics Committee (ICEC), formed in 1995, set the stage for government restrictions on a wide variety of online content. Furthermore, the country’s anti-communist National Security Law (NSL), enacted in 1948, justifies the censorship of websites related to North Korea or communism. These nebulous, overbroad laws can be interpreted not only to cover content deemed obscene, but also content that is political or historical in nature.
The Korean Constitutional Court struck down the Telecommunications Business Act provision for being too vague, warning about the risk of censorship associated with the ICEC regime.
Korean Communications Standards CommissionHowever, unabashed, the South Korean government has merely replaced ICEC with another administrative body whose job it is to apply new, vague legal standards to the Internet. Made up of nine members appointed by the president, the Korean Communications Standards Commission (KCSC) was created to regulate Internet content. The KCSC describes its own role as protecting “internet users' rights and prevent circulation of illegal and detrimental information in the cyberworld”, but in reality has been used to control a broad scope of content, including gambling sites, and sites containing allegedly defamatory content. South Korea has also enacted considerable surveillance measures, as well as a restriction on online anonymity that is being challenged in the Constitutional Court.
Professor K.S. Park is a member of KCSC, one of three members suggested by the opposition party. Prof. Park is a scholar with a long history of defending online freedom of expression, and he organized the constitutional challenge against the rule abolishing online anonymity. As a member of KCSC, Prof. Park meets with the eight other members twice a week to review URLs that have been flagged by the community. Prof. Park has long argued that the KCSC has too much authority to prevent people from accessing expressive content on the web. As a member of the censorship board, he works to steer KCSC into a more lenient interpretation of the censorship laws. Often, he is unsuccessful, and content that he has determined non-harmful to the public is banned.
In July, Prof. Park decided to begin exploring the nuances of these censorship choices in his blog. Believing that a censorship regime is terrible but a secret censorship regime is even worse, he used his blog to educate people about the types of content that were being removed from the Internet in South Korea. He would publish a sample of the type of content that had been removed and include a legal discussion of the removal choice. For example, Prof. Park posted non-sexual pictures of human male anatomy, such as those found in sex education books, along with the argument that such images are not obscene and that even by the conservative Korean standards it's enough to just place age-restrictions on access. Six of his fellow commissioners rejected the argument.
As a result, in August, Prof. Park found his own blog on the roster of sites to be considered by the KCSC board. He inveighed the board for attempting to choke off his free expression. Ultimately, his own blog became the subject of debate amongst the other board members. In an act of compromise, Prof. Park has modified his previous blog entries to remove the "offensive" content and removed the blog from the board’s deliberation, but other members of the board have officially vowed to take actions against his blog in the future.
If Prof. Park’s blog is removed from the Internet, it will be a double blow for the people of South Korea. Not only will another valuable website be banned, but the people of South Korea will lose their only practical method of overseeing the work of the KCSC and holding the board accountable for its online censorship choices. While it is true that the board meetings are open to public viewing, the sheer volume of censorship (i.e. close to 10,000 URLs a month) makes it unwieldy for public oversight. Furthermore, the authors of the censored URLs are not given an opportunity to defend themselves in the censorship deliberations. For the most part, the public isn't participating in the censorship choices made by KCSC because access to the process is so cumbersome, resulting in a regulatory board with no meaningful public oversight.
The UN Human Rights Council’s Special Rapporteur on Freedom of Expression, Frank La Rue, has stated [PDF] that "censorship measures should never be delegated to a private entity" and that "no State should use or force intermediaries to undertake censorship on its behalf,” noting the KCSC as a "quasi-State and quasi private entity" tasked with just that. Indeed, the KCSC lacks transparency and accountability, relying solely on a board of nine individuals to determine what online content is appropriate for Korean viewers. And as Prof. Park’s story illustrates, dissent is not tolerated.
The EFF is deeply troubled by the rise of administrative boards to censor the Internet—now extant in Turkey, Australia, India and South Korea. We are sending an open letter to the Korean Communications Standards Commission condemning attempts to shut the public out of their work and urging them to embrace transparency and online freedom of expression. Click here to read the letter. It is our hope that international pressure, combined with the public outcry in South Korea, can help expose the flaws of this administrative censorship regime and restore real freedom of expression to the South Korean Internet.
Current Electronic Frontier Foundation (EFF) members and donors are invited to join Director for International Freedom of Expression Jillian York and Senior Activist Richard Esguerra at a secret location in New York City for drinks on Sunday, September 11th. Both Jillian and Richard will be speaking at the Open Video Conference that weekend at New York Law School. Find out about our latest work in intellectual property, online activism in the U.S. and abroad, and EFF's continuing fight to defend your privacy.
EFF's Speakeasy events are free, informal gatherings that give you a chance to mingle with local members and meet the people behind the world's leading digital civil liberties organization. It is also our chance to thank you, the EFF members who make this work possible.
SPEAKEASY: New York City
EFF Members-Only Happy Hour
Sunday, September 11, 2011 from 6-8 PM
New York-area members will receive a personal invitation with location details by email on Tuesday, September 6th. Your guests are welcome, but space is limited. Attendees must be 21 or older. No-host bar. For more information, contact membership@eff.org.
Not a member, or let your membership lapse this year? There's still time to sign up today at https://www.eff.org/join!
