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EFF Challenges Secret Government Order to Shut Down Media Websites

Seizure of Servers Hosting Indymedia Websites Violates the First Amendment

San Francisco, CA -- The Electronic Frontier Foundation (EFF) is representing a coalition of independent Internet journalists whose websites were shut down on Thursday, October 7, when their servers were seized by the FBI. The two servers, which were located in the United Kingdom and managed by San Antonio-based Rackspace Managed Hosting, hosted Indymedia's Internet radio station and more than 20 Indymedia websites, as well as several email lists.

The seizure was in response to a "Commissioner's Subpoena" issued at the request of a foreign government. Citing a gag order, Rackspace has provided no further details. An FBI spokesperson has confirmed that the subpoena was issued at the request of Italian and Swiss authorities. Earlier this month, the FBI made informal requests to both Rackspace and Indymedia to remove an Indymedia news story that included photos of undercover Swiss investigators posing as anti-globalization activists. At the time, the FBI admitted that the posting did not violate US law.

EFF has contacted the FBI to demand Indymedia's illegally seized servers be returned and is preparing for legal action in the event that negotiations with the FBI fail. EFF is also calling on Rackspace to challenge the government's illegal seizure. "If Rackspace stands behind its claim of providing 'Fanatical Support' to its customers, it will go to bat for Indymediaone of its biggest customersand demand that the FBI return the seized Internet servers," said Kurt Opsahl, EFF staff attorney. "Rackspace should also fight for its own rights and challenge the gag order preventing it from sharing its side of the story." A federal court in New York City recently found a similar gag order unconstitutional in Doe v. Ashcroft, the ACLU's challenge to a secret PATRIOT Act subpoena served against an Internet service provider.

"The FBI can't pull the plug on more than 20 news websites -- our modern printing presses -- based on a secret proceeding at the request of a foreign government. This is a flagrant violation of the First Amendment," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "As far as the Constitution is concerned, Indymedia has the same rights as any other news publisher. The government can't shut down the New York Times, and it can't shut down Indymedia."

The Indymedia seizure bears a striking resemblance to EFF's very first case, Steve Jackson Games v. US Secret Service. In that case, the Secret Service seized the hardware and software of Steve Jackson Games, an Austin, Texas-based computer game publisher. That seizure, which shut down an Internet bulletin board and email server in addition to disrupting the publisher's business, was found to be an illegal violation of the publisher's rights.

Contact:

  Kevin Bankston
  Attorney, Equal Justice Works / Bruce J. Ennis Fellow
  Electronic Frontier Foundation
  bankston@eff.org
  
  Kurt Opsahl
  Staff Attorney
  Electronic Frontier Foundation
  kurt@eff.org

For inquiries about Indymedia:

  Devin T. Theriot-Orr
  Edwards Sieh Smith & Goodfriend
  devin@essglaw.com

See also: FBI seizes Global Indymedia Servers. Reasons Unknown


News and headlines

Deeplinks
  • UPDATE: EFF Fights Patent Troll Demand For Save Podcasting Campaign Donor Information

    UPDATE: March 31, 2014

    Magistrate Judge Nathanael Cousins issued his written ruling granting EFF's motion to quash. It is available here.

    UPDATE: March 5, 2014

    The court held a hearing today on the subpoena. Good news: Magistrate Judge Nathanael Cousins agreed with EFF and struck down Personal Audio's demands. The judge will issue a written order shortly; we will publish as soon as we have it.

    Personal Audio can try to appeal the decision, so this fight may continue. But for now: victory!

    For decades, EFF has been fighting to make the world safe for innovation. And we’ve been fighting even longer to protect First Amendment rights to anonymity and privacy. Today, those fights came together, as we went to court to stop a patent troll from obtaining information about a specific group of EFF donors, as well as a vast swath of otherwise privileged information.

    Last year we filed a petition at the Patent and Trademark Office challenging the so-called ‘podcasting’ patent owned by Personal Audio. More than one thousand people donated to our Save Podcasting campaign to support our efforts. Our fight against Personal Audio became one of the major patent troll stories of 2013, with coverage in outlets ranging from Ars Technica to NPR’s Planet Money.

    But we aren’t the only challenge Personal Audio faces. The company is suing a number of podcasters and three major television networks in a Texas federal court. EFF is not involved in that lawsuit – but that hasn’t stopped Personal Audio from trying to use it as an excuse to target us. Specifically, Personal Audio has issued a legal demand, called a subpoena, that attempts to force us to provide information about a variety of topics including donations to our Save Podcasting campaign (the subpoena is available here), on the pretext that the information is somehow relevant to the Texas case.

    We believe that Personal Audio’s subpoena to EFF is improper for a number of reasons that are laid out in detail in our motion. Above all, we are outraged that Personal Audio is seeking to invade the privacy and associational rights of hundreds of our donors. EFF takes the privacy of its members and supporters extremely seriously—and so does the Constitution. As we explain in our motion, the First Amendment protects our donors’ right to privacy, and Personal Audio’s supposed need for the information does not trump those rights.

    Personal Audio’s tactic is also improper for several other reasons. For example, it is appears to be primarily intended to avoid the well-defined limits of the PTO discovery process. The petition we filed follows a new, streamlined and therefore relatively inexpensive process. Rather than respond to that petition following the rules of that process, Personal Audio is trying to use entirely separate litigation as an excuse to raise the stakes on EFF – something Congress never intended. If Personal Audio succeeds, we fear it will send a message that this new process can be made invasive, cumbersome and expensive after all, which will in turn discourage others from using it to challenge low quality patents. That would be a shame for all of us.

    The Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School has kindly offered to provide free, individual legal counseling to any donors to the Save Podcasting campaign who may have questions about the subpoena and their own options. The clinic can be reached at: 650 724 1900 or pmalone@law.stanford.edu. We strongly recommend that donors with questions contact the Stanford Clinic for independent legal advice.

    While some of our donors will gladly tweet about giving to EFF, others may prefer to keep such information private. We strongly support the right to make that choice, and we will do all we can to oppose Personal Audio’s demand. We will be posting any major developments regarding the subpoena on our blog.

    Related Issues: 
  • The Patent Reform We Need to See from the Senate

    This is a big week in the world of patents. The Supreme Court heard oral arguments today in Alice Corp. v. CLS Bank, a case about the eligibility of computer-implemented inventions. The outcome of this case has big implications on the future of software patents, the often broad and vague patents stockpiled by trolls and tech companies alike.

    And yet such fundamental questions of patent quality seem to be missing from the current debate in the Senate around patent reform—the second reason why this week is such a hot week for patents. The Senate Judiciary Committee is slated to mark up Senator Patrick Leahy's Patent Transparency and Improvements Act this Thursday, a bill that proposed a few solutions to the patent troll problem and is likely to feature more when discussed this week. Following on the heels of the House's bipartisan 325-91 vote in favor of the Innovation Act, the Senate hopes to offer its own fixes to a patent system that has allowed for patent trolls to run free. Patent quality—the underlying reason why trolls are able to target companies and individuals with dubious claims—is very unfortunately missing from the discussion.

    The Innovation Act offered important changes: heightened pleading, fee shifting, transparency, ending discovery abuse, and end-user protections. The first draft of the Patent Transparency and Improvements Act only covers transparency and end-user protections, though it adds important standards for patent demand letters, which are highly abused.

    This isn't enough. Here's what we want to see in the Senate's legislation:

    1. Patent Quality

    Overbroad and vague software patents are the root cause of most problems in the patent system. And yet very few lawmakers feel the need to address this issue. Senator Chuck Schumer's patent reform proposal included broadening what is known as the Covered Business Method (CBM) review, a way of challenging certain finance-related patents. Schumer's proposal—as well as a section of the Innovation Act that was removed before the final vote—would expand CBM review to all business method patents, including software-type patents. This could provide a cheaper and quicker way to deal with bad patents that have already been issued. Unfortunately, it appears that expanding CBM will not be part of Senate's bill. It should be.

    While expanding CBM review is a good idea, we need even more fundamental reform at the Patent Office to slow the flood of bad patents. This could include limiting patent continuations (the endless do-overs of patent applications), cutting down on overbroad functional claims (a feature of almost all bad software patents), and improving the quality of review.

    2. Fee Shifting

    The idea of fee shifting—when the losing party pays the winning party's fees—is already a part of patent law. Section 285 states: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." Unfortunately, the Federal Circuit has narrowly interpreted "exceptional cases" to make such fee shifting nearly impossible for defendants who defeat bad patent troll claims (which is the subject of the current Supreme Court case, Octane v. ICON).

    Since patent trolls often use the high costs of litigation to pressure their targets into settlements, a likelihood that the losing party (which, in cases litigated all the way to a final judgment, is most often the troll) will pay the other side’s fees could put a serious damper on trolls filing lawsuits in the first place. The Innovation Act includes fee shifting language, and we'd like to see the Senate's bill feature it too. We think tying fees with a joinder provision, as the Innovation Act does, is effective as well. (Joinder allows a prevailing defendant to rope in a patent trolls' parent company into the suit to make sure proper fees are awarded. Often, trolls are shell companies with no assets yet ties to a larger, wealthier entity.)

    3. Protecting End-Users

    Part of the reason why the patent troll problem seems so dire is because end users are being targeted: hotels and restaurants that offer Wi-Fi, offices that use networked scanners, podcasters. Both the Innovation Act and the Patent Transparency and Improvements Act have "customer stay" provisions. This means that if, for example, a cafe is sued by a troll for running Wi-Fi, the wireless router manufacturer can intervene, and the cafe's case will be temporarily put on hold. While these provisions are very good, we believe that stronger protections for an end user—such as immunity for customers using off-the-shelf equipment—are needed.

    4. Transparency in Ownership

    It is all-but-impossible to know who owns a patent. This lack of transparency has allowed patent trolls to hide behind shell companies and feed financial gains back to obfuscated parent companies. (One notable example is Oasis Research, which "bought" a patent from Intellectual Ventures and happens to give 90% of its profits back to the company.) Knowing the web of ownership could, for example, allow a defendant to recognize previously agreed-upon licenses on the patents at hand.

    Both the Innovation Act and the Patent Transparency and Improvements Act have language to bring much-needed transparency to patent ownership. Both bills make patent owners—including trolls—disclose to the Patent Office and the court any changes in ownership or any entities with financial interests in the asserted patents. We think such changes are crucial to shining a light on the true nature of patent trolls, while giving defendants the knowledge they need to pursue a case thoroughly.

    5. Heightened Pleading

    Too often, complaints and demand letters feature vague claims of infringement that scare receivers into submission. One provision the Innovation Act has is a heightened pleading requirement. Basically, this means that any party asserting a patent has to be very clear about a few things: what patents and claims are being infringed; what processes or machines are infringing such claims; how the infringement is happening; and any previous complaint that has been filed about the asserted patents. We want to see similar language in the Senate proposal.

    6. Ending Discovery Abuse

    The discovery process during a patent trial is often egregiously expensive. Defendants have to produce and review reams of documents, while patent trolls—often shell companies with few (if any) employees—don't have nearly as many. This burden feeds into the threat of expensive litigation that trolls take advantage of.

    The Innovation Act features a provision that helps end discovery abuse. First, it delays discovery until after "claim construction," which is when courts interpret relevant patent claims. Plenty of cases are thrown out after this period when a court find that no infringement has occurred. Second, the bill's provisions limit discovery to "core documents"—only those documents likely to be relevant to the specific litigation at hand.

    The financial burden that discovery brings upon defendants is a powerful weapon for trolls. We want the Senate proposal to tackle this problem.

    7. Demand Letter Crackdown

    The biggest area where the current Senate proposal excels and the Innovation Act falls short is when it comes to demand letters. These are letters that patent owners send out to individuals and companies, alleging infringement. Many of the largest patent demand letter campaigns have included misleading and deceptive language (such as failing to disclose that patents have expired or targeting end-users already protected by a manufacturer’s license). Folks receiving these misleading demand letters sometimes settle immediately by licensing the patents they supposedly infringe, especially when the other apparent option is to engage in a multi-million dollar lawsuit. These licensing agreements usually come with gags, silencing the victims while the troll approaches their next target with more spurious claims.

    This tactic is nothing but extortionate. The Patent Transparency and Improvements Act labels such widespread sending of unreasonable letters as an unfair, deceptive trade practice, allowing the Federal Trade Commission to crack down on such bad actors.

    It's Time for Reform

    Who knows when patent reform will be brought to the tables of Congress again? We happen to be at a special point in time when every branch of government is itching for patent reform. Patent trolls have risen to be one of the biggest enemies of not just the tech world, but the business world in general. While underlying patent quality reform may be a long shot—and one we will keep aiming for—if we are going to try and surgically fix the patent troll problem, let's at least do it right.

  • Reforming Terms of Service: Microsoft Changes Its Policy on Access to User Data

    Last week we wrote about initial news reports that Microsoft had searched and disclosed the contents of a blogger’s Hotmail account as part of an internal investigation into the alleged theft of Microsoft source code and other trade secrets. Since then, EFF has been in touch with Microsoft to discuss our objections to the company’s policy regarding its access to user content. Today Microsoft announced a change to that policy:

    Effective immediately, if we receive information indicating that someone is using our services to traffic in stolen intellectual or physical property from Microsoft, we will not inspect a customer’s private content ourselves. Instead, we will refer the matter to law enforcement if further action is required.

    We commend Microsoft for its willingness to reconsider its policies, and we think it made the right decision. As many have noted, while the specific circumstances that led to this case may have been unusual, the underlying issues are common to the industry. For example, Google’s general counsel recently denied accusations that it searched a journalist’s Gmail account in order to find a leaker but asserted that Gmail’s terms of services “might legally permit such access.”

    We’ve said it repeatedly: It is wrong for companies to use terms of service to reserve vast, unnecessary rights to access and disclose user content. This remains the case even when companies don’t exercise all of these rights, or when they do so only in “exceptional circumstances.” Simply having onerous terms as written is the problem.

    To address this industry-wide issue, Microsoft has proposed a project that will propose a set of reforms related to companies’ access to and disclosure of consumers’ personal content. The project intends to bring together other Internet companies along with EFF and the Center for Democracy and Technology (CDT) and other organizations. We look forward to working with these groups to bring more privacy, security and freedom to users.

  • Dispatch from Geneva: EFF Responds to Concluding Observations from UN Human Rights Committee on NSA Pervasive Surveillance

    GenevaThe Electronic Frontier Foundation is pleased with the UN Human Rights Committee’s concluding observations from the United States’ review on its compliance with the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee is a human rights body that monitors state implementation of the obligations relevant to privacy as outlined in the ICCPR.  On March 27 the Committee released their review of the US, flagging several inadequacies with the United States’ compliance.

    In a dispatch from Geneva, EFF’s International Rights Director, Katitza Rodriguez, welcomes the Committee’s observations and urges the United States to conform to the recommendations.  Rodriguez states, “It’s imperative the United States comply with its human rights treaty obligations, specifically Article 17 of the ICCPR, which protect the right of privacy for everyone in the same manner, within or outside US borders, regardless of nationality or place of residence.”

    It's very disappointing that the United States maintain its views that its human rights obligations under the ICCPR do not extend to its actions abroad, a view that defeats the object and purpose of the treaty. The Committee agreed and reiterates that the United States has an extraterritorial duty to protect human rightsincluding the right to privacy— to its action abroad regardless of the nationality or location of the individuals. 

    The Committee rightly criticized the current system of oversight for NSA surveillance activities, highlighting concern with the judicial interpretations of the Foreign Intelligence Surveillance Act (FISA) and secret rulings of the Foreign Intelligence Surveillance Court (FISC). These secret rulings prevent individuals from knowing the law with sufficient precision. Knowledge of and clarity in the law is a crucial principle that is clearly defined in our 13 Necessary and Proportionate Principles

    Additionally, the Committee criticized Obama’s policy directive (PPD-28) because it offers only limited protection against excessive surveillance for non-US persons. The Committee correctly pointed out that those affected have no access to adequate remedies in case of abuse.

    The Human Rights Committee’s concluding observations call upon the United States to implement the following recommendations:

    • Take all necessary measures to ensure that surveillance activities, both within and outside the United States, conform to the obligations under the ICCPR, including Article 17.  Any interference with the right to privacy must comply with the principles of legality, proportionality, and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance;

    • Ensure that any interference with the right to privacy be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to, and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise, specifying, in detail, the precise circumstances in which any such interference may be permitted, the procedures for authorizing such surveillance, the categories of persons who may be placed under surveillance, the limits on the duration of surveillance, and the procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse.

    • Reform the current system of oversight over surveillance activities to ensure its effectiveness by providing, for example, judicial involvement in authorization or monitoring of surveillance measures, and  establishing strong and independent oversight mandates with a view to prevent abuses;
    • Refrain from imposing mandatory retention of data by third parties;
    • Ensure that affected persons have access to effective remedies in cases of abuse.

    EFF urges the US to implement the UN Human Rights Committee’s concluding observations and employ its recommendations in order to ensure equal protections for the rights of individuals in the United States and abroad.

    Full text available here

  • When Is a Tor Block Not a Tor Block?

    As Turkey prepares for elections on Sunday, Turkish Prime Minister Recep Tayyip Erdoğan continues to double down on Internet censorship. A week after Turkish ISPs blocked Twitter Turkey's telecommunications authority has blocked YouTube. The block began to be rolled out hours after a leaked recording published anonymously on YouTube purported to show a conversation in which Turkey's foreign minister, spy chief, and a top general appear to discuss scenarios that could lead to a Turkish attack against militants in Syria.

    The fallout from the Erdoğan government's censorship spree has not been limited to platforms that host embarrassing political content. When Turkish Internet users handily circumvented the original Twitter block by using Google's DNS servers, Google's DNS was itself blocked. Now it appears that just as Turkey's ISPs are rolling out a block on YouTube, they are also blocking access to the Tor Project's website, where users can download the Tor Browser Bundle. The Tor browser is a powerful tool in the censorship circumvention toolbox because it is exceptionally difficult to filter Tor traffic.

    Mirror Mirror

    For users in Turkey who have already downloaded the Tor Browser Bundle, censorship circumvention should continue without a hitch. And for the users who have not yet done so, it's not too late. The Tor project's website has many mirrors—copies of the website hosted at other locations—that make the Browser Bundle available.

    EFF hosts its own mirror at https://tor.eff.org/.

    Some other mirrors include:

    https://tor.spline.inf.fu-berlin.de/

    https://tor.myrl.net/

    https://www.tor.lu/

    https://tor.crazyhaze.de/

    Supporters of censorship circumvention can run their own mirrors by following Tor's instructions.

    Don't Get Backdoored

    When the official distribution channel for a security or censorship circumvention tool is blocked, there is a very real danger of fake or backdoored copies of the tool being distributed under the guise of real tools. Be sure to download your tools only from websites using HTTPS, and only from trusted sources such as the sites on this list. Beware of software which is distributed via IM, Skype message, or email, as well as links posted to Facebook groups.

    Related Issues: 
  • New Report on Ethiopia Examines the Off-the-Shelf Surveillance State

    Rumors of the extent of Ethiopia’s digital surveillance and censorship state have echoed around the information security community for years. Journalists such as Eskinder Nega have spoken of being shown text messages, printouts of emails, and recordings of their own telephone conversations by the Ethiopian security services. From within the country, commentators connected growing telecommunications surveillance to the increasing presence of Chinese telecommunications company ZTE. Externally, analysis of the targeted surveillance of exiled Ethiopians have turned up surveillance software built and sold by Western companies, such as FinFisher and Hacking Team. Observers of the country’s national Internet censorship have reported keyword filtering of websites and blocking of Tor nodes that reveal a sophisticated national firewall conducting deep packet inspection.  It has taken Human Rights Watch’s excellent in-country research, however, to bring flesh to the bones of this speculation in their new, comprehensive 145-page report, “‘They Know Everything We Do’: Telecom and Internet Surveillance in Ethiopia”, led by Felix Horne and Cynthia Wong.

    Collecting credible evidence from exiled activists (including EFF’s pseudonymous client, Mr. Kidane, who is suing the Ethiopian government for covertly installing spyware on his computer in the United States, surveilling his Skype conversations and Google searches), detailed descriptions and screenshots of internal Ethiopian Telecommunications wiretapping software, and testimony from Ethiopia’s own whistleblowers from within their security service, the report paints a picture of a regime just beginning to flex its digital surveillance muscles.

    The sophistication of this surveillance seems unlikely for a nation in the bottom twenty of countries by GDP per capita. But just as the country’s leaders have, for two decades, pursued a rapid economic development policy in an attempt to accelerate out of the poverty, so they have also thrown equal effort into creating a speedily expanding, state-of-the-art surveillance state -- and with the tacit Western acceptance that being one of the United States’ regional allies in the war against terrorism brings.

    Ethiopia’s position as an American ally gives it the opportunity to purchase technology made in the West to carry out its campaigns of censorship and surveillance. The report singles out Hacking Team (based in Italy) and Gamma/FinFisher (based in the UK and Germany) whose command and control servers have been discovered running in Ethiopia and whose surveillance software has been found infecting computers belonging to opposition figures, which may have been targeted using Ethiopia’s broad and much-abused anti-terrorism laws. Ethiopia has also bolstered its surveillance capabilities with drones built by Israeli company Bluebird Systems. This research, conducted mostly by Citizen Lab, is not new, but presented in its entirety, it shows a growing body of evidence linking surveillance products built in the West to human rights violations in Ethiopia.

    And as if the West is not enough, there’s always China. HRW presents compelling evidence that shows that China’s ZTE has provided telecommunications equipment and software that gives the Ethiopian authorities one-click-wiretapping of any of its phone users. Screenshots of extra fields on ZTE’s ZSmart customer relations management tool appear to show that Ethiopia’s telco administrators can check customers against a “blacklist,” and digitally record calls with the press of a single button.

    Ethiopia’s censorship system has always shown similarities to China’s own great firewall: connections are dropped after keywords in a similar fashion to China’s blockade. Soon after Tor was detected by its unique protocol signature in China, Ethiopia joined it in being able to block the anonymising software. These features could simply be a result of Ethiopia’s censorship teamquickly adopting new techniques — or it could mean that Ethiopia is one of the few countries that benefits from the direct export of Great Firewall technology.

    No matter where the skills and technologies originate from, Human Rights Watch’s report demonstrates, for the first time to this level of detail, that pervasive surveillance and censorship is no longer constrained by either cost nor local technological development. We live in a world where both the richest countries in the world and the poorest are exploring the limits of mass, pervasive, digital surveillance. In both cases - and for slightly different meanings of the phrase - money is no object. Only the global enforcement of individual privacy rights and the aggressive funding and development of defensive technology will stop every country from demanding and procuring their own ubiquitous surveillance state. And being a global citizen will mean not just weighing convenience against your desire for privacy from the prying eyes of the NSA, but prying eyes of every other government with a few hundred thousand dollars to spend.

  • 404 Day: A Day of Action Against Censorship in Libraries

    Join EFF on April 4th for 404 Day, a nation-wide day of action to call attention to the long-standing problem of Internet censorship in public libraries and public schools. In collaboration with the MIT Center for Civic Media and the National Coalition Against Censorship, we are hosting a digital teach-in with some of the top researchers and librarians working to analyze and push back against the use of Internet filters on library computers.

    For over a decade public libraries and public schools have been censoring the Internet by blocking and blacklisting websites to be in compliance with the Children's Internet Protection Act (CIPA). The law was passed to encourage public libraries and schools to filter child pornography and obscene or “harmful to minors” images from the library’s Internet connection in exchange for federal funding.

    Unfortunately, aggressive interpretations of CIPA have resulted in extensive and unnecessary censorship in our cherished public libraries, often because libraries, for fear of violating the law, go beyond the legal requirements of CIPA when implementing content filters. As a result, students and library patrons across the country are routinely and unnecessarily blocked from accessing constitutionally protected websites, like the websites of art museums or sites with vitally important health information.

    CIPA requires libraries that accept federal funds from the e-rate program and grants from Library Services and Technology Act to adopt an Internet safety policy that incorporates the use of filtering and blocking software on public and staff computers.

    The intent of the law is that the filters will block access to access to obscene content and child pornography and prevent minors from accessing explicit sexual images that lack any serious artistic, political, literary, or scientific value. However, Internet filters lead to First Amendment violations, because Internet filters cannot possibly make the legal distinctions between assertedly “harmful,” but constitutionally protected, content, and content that can legally be prohibited. Examples of lawful content being blocked by Internet filters abound. Websites have been blocked that host medical information about breast cancer, chicken breasts, and even a New York Times article about Internet gambling all due to keyword blocking.

    Aside from CIPA, an additional problem arises with libraries that have implemented discretionary filtering. Libraries have blocked websites about Wiccan, Native American spirituality, and astrology, as well as the sites that contain information about LGBTQ communities, youth tobacco usage, art galleries, and Second Amendment advocacy. While adult patrons can request for library filters to be turned off, all too often patrons have no idea that their library’s Internet is censored. And to make matters worse, sometimes librarians are unaware of how to turn filters off. Many librarians do not have access to lists of what's being filtered or the reasoning behind it.

    And when it comes to blocking obscene images, filters are often ineffective. A study (PDF) conducted by the San Jose Public Library of available filtering technology in 2008 showed that images of an adult sexual nature continued to display despite the use of filters because of the way image search engines show thumbnails that are not treated as images by filtering programs and often can be expanded to full size.

    The deficiency of filters made headlines in 2011 when Homesafe, a network level filter provided by an ISP in Britain designed to block adult sexual content failed to block Pornhub, which offers thousands of free explicit videos and is ranked as the third largest pornography provider on the web.

    This is why EFF is calling on librarians, students, and concerned library patrons across the country to take action on 404 Day to raise awareness and call attention to banned websites and Internet censorship in libraries. Please join us at 12:00pm PST/ 3:00pm EST for a digital teach-in featuring Deborah Caldwell-Stone, Director of Intellectual Freedom at the American Library Association, Chris Peterson from MIT's Center for Civic Media and the National Coalition Against Censorship, and Sarah Houghton, blogger and Director of the San Rafael Public Library in Northern California for an in-depth discussion about banned websites in public schools and libraries. EFF's own April Glaser will moderate, and we'll post a link for the teach-in on EFF's site prior to the event, but for now, mark your calendars!

    But that's only half of it: bloggers and librarians across the country are invited to write about their experiences with blocked websites, CIPA, and Internet filtering. EFF will link to and share blogposts written for 404 Day on our website and use our megaphone to raise awareness, share stories, and start conversations about how librarians might deal with filtering and censorship in their libraries. Let us know if you want to write a blogpost for 404 Day or send a link when it's written to april@eff.org so we can include it in our list and spread the word.

    In our teach-in we'll talk about research that's being conducted to understand how and why certain websites are blacklisted, what librarians have done to oppose Internet censorship in their library system, how to inform patrons about filters used in their libraries, and discuss the specific requirements of CIPA and legal challenges to library censorship.

    That's why Chris Peterson's investigative research like the Mapping Information Access Project is critically important. He's part of a team that is submitting Freedom of Information Act requests to public libraries and schools to uncover practices of Internet filtering. Another one of our digital teach-in participants, Deborah Caldwell-Stone, a lawyer with the ALA, has long written about and investigated CIPA and related First Amendment violations that result from websites blocked in libraries. Sarah Houghton, the Director of San Rafael Public Library, will share her story of how she lobbied her library system (in San Jose at the time) to not install Internet filters on their computers.

    So be sure to pencil in your calendars for our digital teach-in on 404 Day, blog about it, invite your friends to blog about it, share it on social media, and help us call attention to censorship in libraries and schools. CIPA might be over a decade old, but that doesn't mean that library Internet censorship is permanent. Together, we can raise awareness and call attention to this critically important issue. Join us.

    Want to blog on April 4th for 404 Day? Email april@eff.org to let us know.

    Related Issues: 
  • EFF Urges Turkey to Revoke Twitter Ban

    Following his pledge to “wipe out” Twitter last week, Turkish Prime Minister Recep Tayyip Erdoğan ordered ISPs to block the site, which they did by tweaking DNS settings and redirecting traffic from the page to a government blockpage.  

    The move was futile; Turkish Internet users have been dealing with censorship for many years and were immediately able to circumvent the ban.  Within hours, Turkey’s prolific Twitter users had created hashtags like #TurkeyblockedTwitter, which subsequently landed on the trending topics list.  Despite the block, more than an estimated half million tweets were posted within ten hours.

    By Saturday, authorities had tightened the ban, blocking Google DNS and the IP addresses assigned to Twitter.com.  In doing so, they made it more difficult to circumvent the ban; whereas before, Twitter users could simply change their DNS settings, they now must use a virtual private network (VPN), Twitter’s SMS service, a web proxy, or Tor.  

    Just as Twitter has seen a surge in the number of Turkish users, Tor use has markedly increased in Turkey.  According to Tor’s internal metrics, connections from Turkey via Tor have nearly doubled in the past few days. EFF recommends that Turkish users who would like to circumvent government censorship do so by downloading and using the Tor Browser Bundle. Tor is an especially censorship-resistant technology, and will continue to circumvent censorship even if Turkey blocks other websites, DNS servers, VPNs, or proxies. While Iran and China are both engaged in an elaborate cat-and-mouse game with Tor developers—finding new ways to identify and block Tor traffic even as Tor developers find new ways to get around them—Turkey is unlikely at this point to engage in such behavior.

    What does it mean?

    A number of publications have suggested that the ban has “backfired,” or called it an example of the Streisand effect.  Neither camp is entirely correct: To have backfired, the ban would have had to result in increased opposition (as it has elsewhere) to the censorship, something we haven’t quite seen (yet).  And to represent the Streisand effect, the ban would’ve needed to have the effect of making the recent corruption allegations more visible; but as Henry Farrell pointed out in the Washington Post:

    Most Turks who were potentially interested in Prime Minister Recep Tayyip Erdogan’s recorded phone calls knew about them already. The tapped conversations have been the topic of widespread gossip and speculation in Turkey for weeks. This information would not have languished in obscurity if the Twitter ban hadn’t happened.

    To the contrary, analyst Zeynep Zileli Rabanea suggested that those who liked Erdoğan’s policies already “will only like him more after what they consider to be a courageous stand up against the West and Turkey's critics.”

    Indeed, Erdoğan’s move is not simply in response to the corruption leaks.  In an interview with Al Jazeera English, AKP member Burhan Kuzu stated that the ban was a response to Twitter’s refusal to “implement the principles it uses for the US, United Kingdom, France, Canada, et cetera for Turkey”; that is, by failing to block specific content in response to Turkish legal orders.  “This is the most important issue for us,” said Kuzu. “There are insults, swearing and porn about Turkish citizens on Twitter.”

    An (il)legal order?

    Although Turks may be accustomed to online censorship at this point, a recent study by PewResearch’s Global Attitudes Project suggested that support for uncensored Internet access is quite high, at 58% (only 6% of respondents said it was “not important at all,” while 23% abstained or said they didn’t know).

    In fact, Turkey’s own president, Abdullah Gül, has spoken out against the ban, fittingly, on Twitter.  He also seemed to recognize its futility, saying that it was “not technically possible to block access to platforms used all over the world.”

    As President, Gül has veto power over laws, but as experts have pointed out, there is no law that justifies the ban on Twitter.  Internet Law No. 5651—passed in 2007—prohibits online content in eight different categories and authorizes the Turkish Supreme Council for Telecommunications and IT (TIB) to block a website when there’s “adequate suspicion” that the site hosts illegal content.  In this case, however, there does not seem to be a legal order backing up the ban.

    Turkish civil society isn’t merely live-tweeting the ban.  On Monday, the Turkish Journalists’ Association filed a complaint in a local Ankara court arguing that the ban was in violation of free expression.  In Istanbul, a similar case was filed at the Constitutional Court of Turkey, which has the authority to revoke the ban.

    Twitter has proved invaluable in Turkey and around the world for sharing information, organizing actions, and simply connecting with friends.  EFF unequivocally opposes Turkey’s attempts to stifle speech and urges the Turkish government to restore access to Twitter immediately.

    Image: Recep Tayyip Erdogan - Twitter Splatter by DonkeyHotey, released under Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)

  • There Are Lots of Legit Reasons to Look at Pornography: New Restrictions on NIH Grants Are Unscientific And Possibly Illegal

    There was a moralistic, unnecessary, and wholly unscientific new restriction enacted on funding for the National Institute of Health as part of the appropriations bill passed in January. The new legislative mandate forces researchers who rely on government funding to place anti-pornography filters on their computer networks. There are serious potential consequences, such as filters overblocking sites that are anatomical rather than pornographic in nature as well as lost funding for scientific research that may legitimately need to access pornographic sites.  The end result? Members of Congress, rather than the scientific community, imposing restrictions on what researchers should be investigating.

    The Consolidated Appropriations Act was signed into law on January 17, 2014 and determines the funding for a range of government agencies and projects. Included in this act is a budget for the National Institute of Health, which itself is an enormous source of support for scientific research of all stripes. The new mandate has a provision stating that, “None of the funds made available in this Act may be used to maintain or establish a computer network unless such network blocks the viewing, downloading, and exchanging of pornography” and then provides a carve-out for criminal investigations.

    This restriction is likely a reaction to a long-running controversy around NIH-funded research projects that involved pornographic websites. In particular, the University of Minnesota Men’s INTernet Study’s (MINTS) SexPulse research program, which was investigating ways of promoting safe sex practices among men who have sex with men (MSM), has been heavily criticized by conservative groups for integrating safe-sex surveys and education onto pornographic websites. But this debate isn’t new; back in 2004 the director of NIH was responding to criticism of NIH-backed research into pornography and prostitution, saying he “fully support[s] NIH’s continued investment in research on human sexuality.”

    There are both legal and policy reasons why the restriction is ill-advised.  First, the law.

    Generally, the government cannot engage in direct censorship; the First Amendment prohibits it from doing so.  However, Congress passed a law called the Children’s Internet Protection Act (CIPA) which required schools and libraries that receive so-called E-Rate funding to have Internet filtering software as a condition of funding.  In 2003, in United States v. American Library Association, the Supreme Court held that CIPA was constitutional.

    We are unaware of any court challenges to the new NIH mandate, but there are many important differences between it and CIPA.

    First, the NIH mandate applies to “pornography,” a layperson’s term that is not defined either in the mandate or elsewhere in the law.  By contrast, CIPA filtering is limited to three specific categories: obscenity, child pornography, and material that is harmful to minors.  All of those are terms defined in CIPA itself or elsewhere in the law, and the scope of all three combined generally is considered to be less broad than common understandings of pornography.  (For example, a typical Playboy centerfold might be pornographic to some, but is not obscene, child pornography, or harmful to minors.)

    Second, unlike the NIH mandate, CIPA has two important limitations.  Even when a filter is required, it can be turned off on request by an adult user.  CIPA also has a specific exemption for bona fide research or other lawful purposes, but the NIH mandate has none.  The only exemption from the NIH mandate is for law enforcement purposes.

    Thus, notwithstanding the CIPA case, there are reasons to question the legality of the new NIH mandate.

    But apart from the law, and regardless of how you feel about research that involves pornography, there are two important reasons why everyone should oppose this new federal restriction on medical research:

    1. Internet filters are inaccurate. As we noted when discussing the Children’s Internet Protection Act, filters block far more than explicit websites. Filters have been known to block LGBTQ-themed sites, websites for art museums, information on teen smoking, Second Amendment advocacy sites, and even sites about role playing games
      By throwing these filters onto the computers of research institutions across the nation, we run the risk of inadvertently blocking all sorts of legitimate content from scientists engaged in research.
    2. Filters are secretive.  One way to ensure that Internet filters aren’t blocking non-pornographic content (such as anatomy websites or sites covering issues like testicular and breast cancers) is to have transparency around what content is actually being blocked. Unfortunately, most Internet filters hide their blacklists and algorithms, claiming trade secrets. This means that U.S. scientists will, by and large, have no simple, objective way to choose the least-censoring Internet filter possible. And we, the American public, have no simple, objective way of seeing how many non-pornographic websites are being blocked by this new restriction.

    Perhaps most importantly, researchers ought to be able to access pornographic material. While it may make some people uncomfortable, there are research topics that unquestionably benefit from access to pornographic websites. For example, there are research projects examining the spread of HIV associated with viewing pornography depicting unprotected anal intercourse, research examining whether frequent pornography viewing has a relationship to sexual aggression for certain groups of men, and studies on a potential relationship between men's pornography consumption and their attitudes supporting violence against women

     These and no doubt countless other areas of investigation could potentially be hindered by unwieldy restrictions on federal grants for research.

     Congress shouldn’t dictate what topics are worthy of investigation. Excising Internet pornography from the realm of things researchers should examine when working to understand the human body and mind places unnecessary barriers on scientific curiosity. 

    Let’s support rigorous, uncensored scientific research. 

    Upcoming event: EFF, in collaboration with Center for Civic Media at MIT and the National Coalition Against Censorship, is hosting a day of action and digital teach-in about the Children’s Internet Protection Act and filters in libraries. Learn more

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  • EFF Statement on Proposals to Overhaul NSA Spying

    Today we learned that the Obama administration and the House Intelligence Committee are both proposing welcome and seemingly significant changes to the mass telephone records collection program.  Both the Obama administration and the Intelligence Committee suggest that mass collection end with no new data retention requirements for telephone companies. This is good news, but we have not seen the details of either and details, as we have learned, are very important in assessing suggested changes to the NSA’s mass spying. 

    But comparing what we know, it appears that the Obama administration's proposal requires significantly more judicial review—not just reviewing procedures but reviewing actual search requests—so it's preferable to the Intelligence Committee’s approach.

    Yet a new legislative proposal isn’t necessary here.  There is already a bill ending bulk collection. It's called the USA FREEDOM Act by Judiciary Committee chairs Sen. Patrick Leahy and Rep. Jim Sensenbrenner. It's a giant step forward and better than either approach floated today since it offers more comprehensive reform, although some changes are still needed.  We urge the administration and the Intelligence Committees to support the USA FREEDOM.

    Or better still, we urge the Administration to simply decide that it will stop misusing section 215 of the Patriot Act and section 702 of the FISA Amendments Act and Executive Order 12333 and whatever else it is secretly relying on to stop mass spying.  The executive branch does not need congressional approval to stop the spying; nothing Congress has done compels it to engage in bulk collection.  It could simply issue a new Executive Order requiring the NSA to stop.

    Also, the Obama administration does not go beyond the telephone records programs, which are important, but are only a relatively small piece of the NSA's surveillance and, by itself won’t stop mass surveillance.  We continue to believe that comprehensive public review is needed through a new Church Committee to ensure that all of the NSA's mass surveillance is brought within the rule of law and the constitution. Given all the various ways that the NSA has overreached, piecemeal change is not enough.

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