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EFF's Deeplinks Blog: Noteworthy news from around the internet
Updated: 6 days 18 hours ago

EFF and ACLU Ask Ninth Circuit to Overturn Government’s Censorship of Twitter’s Transparency Report

Fri, 10/09/2020 - 15:46

Citing national security concerns, the government is attempting to infringe on Twitter's First Amendment right to inform the public about secret government surveillance orders. For more than six years, Twitter has been fighting in court to share information about law enforcement orders it received in 2014. Now, Twitter has brought that fight to the Ninth Circuit Court of Appeals. EFF, along with the ACLU, filed an amicus brief last week to underscore the First Amendment rights at stake.

In 2014, Twitter submitted a draft transparency report to the FBI to review. The FBI censored the report, banning Twitter from sharing the total number of foreign intelligence surveillance orders the government had served within a six-month period. In response, Twitter filed suit in order to assert its First Amendment right to share that information.

Over half a decade of litigation later, the trial court judge resolved the case in April by dismissing Twitter’s First Amendment claim. Among the several concerning aspects of the opinion, the judge spent devoted only a single paragraph to analyzing Twitter’s First Amendment right to inform the public about law enforcement orders for its users’ information.

That single paragraph was not only perfunctory, but incorrect. The lower court failed to recognize one of the most basic rules underpinning the right to free speech in this country: the government must meet an extraordinarily exacting burden in order to censor speech before that speech occurs, which the Supreme Court has called “the most serious and least tolerable infringement on First Amendment rights.”

As we explained in our amicus brief, to pass constitutional scrutiny, the government must prove that silencing speech before it occurs is necessary to avoid harm that is not only extremely serious but is also imminent and irreparable. But the lower court judge concluded that censoring Twitter’s speech was acceptable without finding that any resulting harm to national security would be either imminent or irreparable. Nor did the judge address whether the censorship was actually necessary, and whether less-restrictive alternatives could mitigate the potential for harm.

This cursory analysis was a far cry from the extraordinarily exacting scrutiny that the First Amendment requires. We hope that the hope that the Ninth Circuit will say the same.

Related Cases: Twitter v. Holder

Facebook’s Most Recent Transparency Report Demonstrates the Pitfalls of Automated Content Moderation

Thu, 10/08/2020 - 12:17

In the wake of the coronavirus pandemic, many social media platforms shifted their content moderation policies to rely much more heavily on automated tools. Twitter, Facebook and YouTube all ramped up their machine learning capabilities to review and identify flagged content in efforts to ensure the wellbeing of their content moderation teams and the privacy of their users. Most social media companies rely on workers from the so-called global South to review flagged content, usually under precarious working conditions and without adequate protections from the traumatic effects of their work. While the goal to protect workers from being exposed to these dangers while working from home is certainly legitimate, automated content moderation still poses a major risk to the freedom of expression online.

Wary of the negative effects the shift towards more automated content moderation might have on users’ freedom of expression, we called on companies to make sure that this shift would be temporary. We also emphasized the importance of meaningful transparency, notice, and robust appeals processes in these unusual times called for in the Santa Clara Principles.

While human content moderation doesn’t scale and comes with high social costs, it is indispensable. Automated systems are simply not capable of consistently identifying content correctly. Human communication and interactions are complex, and automated tools misunderstand the political, social or interpersonal context of speech all the time. That is why it is crucial that algorithmic content moderation is supervised by human moderators and that users can contest takedowns. As Facebook’s August 2020 transparency report shows, the company’s approach to content moderation during the coronavirus pandemic has been lacking in both human oversight and options for appeals. While the long-term impacts are not clear, we’re highlighting some of the effects of automated content moderation across Facebook and Instagram as detailed in Facebook’s report.

Because this transparency report omits key information, it remains largely impossible to analyze Facebook’s content moderation policies and practices.  The transparency report merely shares information about the broad categories in which deleted content falls, and the raw numbers of taken down, appealed, and restored posts. Facebook does not provide any insights on its definitions of complex phenomena like hate speech or how those definitions are operationalized. Facebook is also silent on the materials with which human and machine content moderators are trained and about the exact relationship between—and oversight of—automated tools and human reviewers.

We will continue to fight for real transparency. Without it there cannot be real accountability.

Inconsistent Policies Across Facebook and Instagram

While Facebook and Instagram are meant to share the same set of content policies, there are some notable differences in their respective sections of the report. The report, which lists data for the last two quarters of 2019 and the first two of 2020, does not consistently report the data on the same categories across the two platforms. Similarly, the granularity of data reported for various categories of content differs depending on platform.

More troubling, however, is what seems to be differences in whether users had access to appeal mechanisms. When content is removed on either Facebook or Instagram, people typically have the option to contest takedown decisions. Typically, when the appeals process is initiated, the deleted material is reviewed by a human moderator and the takedown decision can get reversed and content reinstated. During the pandemic, however, that option has been seriously limited, with users receiving notification that their appeal may not be considered. According to the transparency report, there were zero appeals on Instagram during the second quarter of 2020 and very few on Facebook.

The Impact of Banning User Appeals

While the company also occasionally restores content on its own accord, user appeals usually trigger the vast majority of content that gets reinstated. An example: in Q2, more than 380 thousand posts that allegedly contained terrorist content were removed from Instagram, fewer than in Q1 (440k). While around 8100 takedowns were appealed by users in Q1, that number plummeted to zero in Q2. Now, looking at the number of posts restored, the impact of the lack of user appeals becomes apparent: during the first quarter, 500 pieces of content were restored after an appeal from a user, compared to the 190 posts that were reinstated without an appeal. In Q2, with no appeal system available to users, merely 70 posts of the several hundred thousand posts that allegedly contained terrorist content were restored.

Meanwhile, on Facebook, very different numbers are reported for the same category of content. Facebook acted on 8.7 million pieces of allegedly terrorist content, and of those, 533 thousand were later restored, without having been triggered by a user appeal. In comparison, in Q1, when user appeals were available, Facebook deleted 6.3 million pieces of terrorist content. Of those takedowns, 180.1 thousand were appealed, but even more—199.2 thousand—pieces of content were later restated. In other words, far fewer posts that allegedly contained terrorist content were restored on Instagram where users couldn't appeal takedowns than on Facebook, where appeals were allowed.

Blunt Content Moderation Measures Can Cause Real Harm

Why does this matter? Often, evidence of human rights violations and war crimes gets caught in the net of automated content moderation as algorithms have a hard time differentiating between actual “terrorist” content and efforts to record and archive violent events. This negative impact of automated content detection is disproportionately borne by Muslim and Arab communities. The significant differences in how one company enforces its rules relating to terrorist or violent and extremist content across two platforms highlights how difficult it is to deal with the problem of violent content through automated content moderation alone. At the same time, it also underpins the fact that users can’t expect to get treated consistently across different platforms, which may increase problems of self-censorship.

Another example of the shortcoming of automated content removals: in Q2, Instagram removed around half a million images that it considered to fall into the category of child nudity and sexual exploitation. That is a significantly lower number compared to Q1, when Instagram removed about one million images. While Facebook’s report acknowledges that its automated content moderation tools struggle with some types of content, the effects seem especially apparent in this category of content. While in Q1, many takedowns of alleged child sexual abuse images were successfully appealed by users (16.2 thousand), only 10 pieces of deleted content were restored during the period in which users could not contest takedowns. These discrepancies in content restoration suggest that much more content that has been wrongfully taken down remained deleted, imperiling the freedom of expression of potentially millions of users. They also show the fundamentally important role of appeals to guard users’ fundamental rights and hold companies accountable for their content moderation policies.

The Santa Clara Principles on Transparency and Accountability in Content Moderation—which are currently undergoing an assessment and evaluation process following an open comment period—offer a set of baseline standards that we believe every company should strive to adopt. Most major platforms endorsed the standards in 2019, but just one—Reddit—has implemented them in full.

Facebook has yet to clarify whether its shift towards more automated content moderation is indeed temporary, or here to stay. Regardless, the company must ensure that user appeals will be reinstated. In the meantime, it is crucial that Facebook allow for as much transparency and public oversight as possible.

The Selective Prosecution of Julian Assange

Wed, 10/07/2020 - 18:32

As the extradition hearing for Wikileaks Editor-in-Chief Julian Assange unfolds, it is increasingly clear that the prosecution of Assange fits into a pattern of governments selectively enforcing laws in order to punish those who provoke their ire. As we see in Assange’s case and in many others before this, computer crime laws are especially ripe for this form of politicization.

The key evidence in the U.S. government’s cybercrime conspiracy allegations against Assange is a brief conversation between Julian Assange and Chelsea Manning in which the possibility of cracking a password is discussed, Manning allegedly shares a snippet of that password with Assange, and Assange apparently attempts, but fails, to crack it.  While breaking into computers and cracking passwords in many contexts is illegal under the Computer Fraud and Abuse Act, few prosecutors would ever bother to bring a case for such an inconsequential activity as a failed attempt to reverse a hash. But the government has doggedly pursued charges against Assange for 10 years, perhaps because they fear that prosecuting Assange for publishing leaked documents is protected by the First Amendment and is a case they are likely to lose.  

With this allegation, the government is attempting to dodge around the First Amendment protections by painting Assange as a malicious hacker and charge him for conspiracy to violate computer crime law. This is a pattern we’ve seen before.

Cybercrime laws are a powerful tool used by authoritarian governments to silence dissent, including going after journalists who challenge government authority. The Committee to Protect Journalists has documented how a computer crime law in Nigeria was used to harass and press charges against five bloggers who criticized politicians and businessmen. Human Rights Watch has described how the Saudi Arabian government used vague language in an anti-cybercrime law to prosecute Saudi citizens who used social media to speak out against government abuses. And in Ecuador, Amnesty International has joined EFF in raising awareness about the case of Ola Bini, a Swedish open source software developer who garnered government ire and is now facing a politically-motivated prosecution for supposed computer crime violations.

This is in alignment with EFF’s 2016 whitepaper examining the prosecution history of Arab countries such as Jordan, Saudi Arabia, and Tunisia. We found these governments selectively enforced anti-terrorism and cybercrime laws in order to punish human rights attorneys, writers, activists, and journalists. The pattern we identified was that authorities would first target an activist or journalist they wanted to silence, and then find a law to use against them. As we wrote, “The system results in a rule by law rather than rule of law: the goal is to arrest, try, and punish the individual—the law is merely a tool used to reach an already predetermined conviction.”

Cybercrime laws can turn innocent exploration, and journalistic inquiry into sinister-sounding (and disproportionately punished) felonies, just because they take place in a digital environment that lawmakers and prosecutors do not understand. The Intercept’s Micah Lee described the computer crime charges against Assange as “incredibly flimsy.” The conspiracy charge is rooted in a chat conversation in which Manning and Assange discussed the possibility of cracking a password. Forensic evidence and expert testimony make it clear that not only did Assange not crack this password, but that Manning only ever provided Assange with a piece of a password hash – from which it would have been impossible to derive the original password. 

Furthermore, recent testimony by Patrick Eller, a digital forensics examiner, raises questions about whether the alleged password cracking attempt had anything to do with leaking documents at all, especially since the conversation took place after Manning had already leaked the majority of the files she sent to Wikileaks.

Testimony from the Chelsea Manning court martial make it clear that lots of soldiers in Manning’s unit were routinely using their government computers to download music, play games, download chat software, and install other software programs they found useful, all of which was not permitted on these machines. This included logging into computers under an administrator account and then installing what they wanted, and sometimes deleting the administrator account, so that the military sysadmin had to wipe and reimage computers again and again. Eller even noted that one of Manning’s direct supervisors even asked Manning to download and install software on her computer. Indeed, the activity Assange is accused of was not even important enough to be included in the formal CFAA charges leveled against Manning.

Prosecutors don’t go after every CFAA violation, nor do they have the resources to do so. They can choose to pursue specific CFAA cases that draw their attention. And Assange, having published a wealth of documents that embarrassed the United States government and showed widespread misconduct, has been their target for years.

Assange is charged with 18 violations of the law. The majority of these counts relate to obtaining classified government information and disclosing that information to the world. As we’ve written before, the First Amendment strongly protects the rights of journalists, including Assange, to publish truthful information of clear public interest that they merely receive from whistleblowers, even when the documents are illegally obtained. This has been upheld in the Supreme Court cases New York Times Co. v. United States (finding the government could not enjoin the New York Times from publishing Vietnam war documents from whistleblower Daniel Ellsberg) and Bartnicki v. Vopper (in which a radio journalist was not liable for publishing recordings of union conversations plotting potential violence). Indeed, Wikileaks had every right to publish the leaked documents they received, and to work directly with a source in the process just as any journalist could.

The lone conspiracy to commit a computer crime allegation has become a major focus of attention in this case, and in fact a computer crime was the only charge against Assange when he was first arrested. The charge is drawing that attention because it’s the only charge that isn’t directly about receiving and publishing leaks. But as the court assesses these charges against Assange, we urge them to see this case within the context of a repeated, known pattern of governments enforcing computer crime law selectively and purposely in order to punish dissenting voices, including journalists. Journalism is not a crime, and journalism practiced with a computer is not a cyber-crime, no matter how U.S. prosecutors might wish it were

Alleged chat between Chelsea Manning and Julian Assange

Related Cases: Bank Julius Baer & Co v. Wikileaks

California League of Cities Should Reject Misguided Section 230 Resolution

Wed, 10/07/2020 - 15:48

The past few months have seen plenty of attempts to undermine Section 230, the law that makes a free Internet possible. But now we’re seeing one from a surprising place: the California League of Cities.

To be clear, the League of Cities, an association of city officials from around the state, doesn’t have the power to change Section 230 or any other federal law. But if Congress were to actually follow their lead, the policies that the League is considering approving would be disastrous for the freedom of California residents.

Section 230 states that websites and online services can’t be sued or prosecuted based on content created by their users. This straightforward regulation is based on the simple fact that you are responsible for your own speech online.

This week, the League will consider a resolution proposed by the city of Cerritos, which would effectively force website owners, large or small, to surveil their sites and remove content that “solicits criminal activity.” If they don’t, they would lose Section 230 protections and be exposed to civil suits, as well as state-level criminal prosecutions, for their users’ misdeeds. The resolution goes further, requiring websites and apps to help police with the “identification and apprehension” of people deemed (by the police) to be soliciting crime of any kind.

The Cerritos proposal is based on a crime that never happened. According to the proposal, Cerritos police responded to an anonymous posting on Instagram, inviting followers to “work together to loot Cerritos [M]all.” Nothing happened, but the city of Cerritos has now asked the League to endorse dramatic changes to federal law in order to give police vast new powers.

If the vague allegation that a website was used by city residents to "solicit criminal activity" is enough to expose that website to prosecutions and lawsuits, it will result in widespread Internet censorship. If Congress were to pass such an amendment to Section 230, it would provide a lever for government officials to eliminate protest and rally organizing via social media. Online platforms would be coerced into performing police surveillance of residents in cities throughout California. That’s the last thing we need during a year when millions of Americans have taken to the streets protesting police abuses.

Two California League of Cities committees have considered and passed the resolution, despite considerable opposition. On Sept. 29, the League’s Public Safety Committee met and passed the resolution by an 19-18 vote. EFF spoke at those committee meetings and delivered a letter [PDF] expressing our opposition to committee members.

If California municipalities want to weigh in on Internet regulation that will have national ramifications, they should do so in a way that benefits their residents—like legislation that could protect net neutrality, or reduce the digital divide.

Instead, the City of Cerritos and a few allies are urging the League to ask for a new type of Internet. It would be one in which their own residents are under constant surveillance online, and local newspapers and blogs would have to either close their online discussion sections, or patrol them for behavior that might offend local police.

We hope League members vote against this resolution, and send Congress a message that Californians want an Internet that respects users’ rights—not one focused on doing the police’s work for them.  

 

 

 

Privacy Badger Is Changing to Protect You Better

Wed, 10/07/2020 - 14:02

Privacy Badger was created to protect users from pervasive non-consensual tracking, and to do so automatically, without relying on human-edited lists of known trackers. While our goals remain the same, our approach is changing. It is time for Privacy Badger to evolve.

Thanks to disclosures from Google Security Team, we are changing the way Privacy Badger works by default in order to protect you better. Privacy Badger used to learn about trackers as you browsed the Web. Now, we are turning “local learning” off by default, as it may make you more identifiable to websites or other actors. If you wish, you can still choose to opt in to local learning and have the exact same Badger experience as before. Regardless, all users will continue to benefit from Privacy Badger’s up-to-date knowledge of trackers in the wild, as well as its other privacy-preserving features like outgoing link protection and widget replacement.

Google Security Team reached out to us in February with a set of security disclosures related to Privacy Badger’s local learning function. The first was a serious security issue; we removed the relevant feature immediately. The team also alerted us to a class of attacks that were enabled by Privacy Badger’s learning. Essentially, since Privacy Badger adapts its behavior based on the way that sites you visit behave, a dedicated attacker could manipulate the way Privacy Badger acts: what it blocks and what it allows. In theory, this can be used to identify users (a form of fingerprinting) or to extract some kinds of information from the pages they visit. This is similar to the set of vulnerabilities that Safari’s Intelligent Tracking Prevention feature disclosed and patched late last year.

To be clear: the disclosures Google’s team shared with us are purely proof-of-concept, and we have seen no evidence that any Privacy Badger users have had these techniques used against them in the wild. But as a precaution, we have decided to turn off Privacy Badger’s local learning feature by default.

From now on, Privacy Badger will rely solely on its “Badger Sett” pre-trained list of tracking domains to perform blocking by default. Furthermore, Privacy Badger’s tracker database will be refreshed periodically with the latest pre-trained definitions. This means, moving forward, all Privacy Badgers will default to relying on the same learned list of trackers for blocking.

How does Privacy Badger learn?

From the beginning, Privacy Badger has recognized trackers by their sneaky, privacy-invading behavior. Privacy Badger is programmed to look for tracking heuristics—specific actions that indicate someone is trying to identify and track you. Currently, the things Privacy Badger looks for are third-party cookies, HTML5 local storage “supercookies” and canvas fingerprinting. When local learning is enabled, Privacy Badger looks at each site you visit as you browse the Web and asks itself, “Does anything here look like a tracker?” If so, it logs the domain of the tracker and the domain of the website where the tracker was seen. If Privacy Badger sees the same tracker on three different sites, it starts blocking that tracker.

But for some time now, Privacy Badger hasn’t just learned in your browser: it also came preloaded with data about common trackers on the Web. Badger Sett is an automated version of Privacy Badger that we use daily to visit thousands of the most popular sites on the Web. Each new installation of Privacy Badger comes with the list of trackers collected from the latest Badger Sett scan. This way, when you install it for the first time, it immediately starts blocking known trackers.

What were the disclosures?

The first Google Security Team disclosure was a security vulnerability based on a feature we added in July 2019: detection of first-to-third-party cookie sharing (pixel cookie sharing). Because of the way Privacy Badger checked first-party cookie strings against outgoing third-party request URLs, it would have been possible in certain circumstances for an attacker to extract first-party cookie values by issuing thousands of consecutive requests to a set of attacker-controlled third-party domains. We immediately removed the first-to-third-party cookie heuristic from Privacy Badger’s local learning in order to patch the vulnerability. (We have continued using that heuristic for pre-training in Badger Sett, where it does not expose any sensitive information.)

The second set of disclosures described a set of attacks that can be carried out against any kind of heuristic learning blocker. These attacks hinge on an adversary having the ability to force a particular user’s instance of Privacy Badger to identify arbitrary domains as trackers (setting state), as well as the ability to determine which domains a user’s Privacy Badger has learned to block (reading back the state). The disclosures were similar to the ones Google previously reported about Apple’s Intelligent Tracking Protection (ITP) feature.

One attack could go something like this: a Privacy Badger user visits a malicious webpage. The attacker then uses a script to cause the user’s Privacy Badger to learn to block a unique combination of domains like fp-1-example.com and fp-24-example.com. If the attacker can embed code on other websites, they can read back this fingerprint to track the user on those websites.

In some cases, the ability to detect whether a particular domain has been blocked (like a dedicated content server for a particular bank) could reveal whether a user has visited particular sites, even if the attacker doesn’t run code on those sites.

More information on this style of attack can be found in the researchers’ paper. Since Privacy Badger learns in much the same way that Safari’s ITP did, it was vulnerable to the same class of attack.

What is changing?

Since the act of blocking requests is inherently observable by websites (it’s just how the Web works), the best way to prevent this class of attacks is for Privacy Badger to disable local learning by default and use the same block list for all of its users. Websites will always be able to detect whether a given domain was blocked or not during your visit. However, websites should not be able to set Privacy Badger state, nor should they be able to distinguish between individual Privacy Badger users by default.

Before today, every Privacy Badger user would start with a set of known trackers (courtesy of Badger Sett), then continue finding information about new trackers over time. A new installation of Privacy Badger would start with data from the most recent Badger Sett scan before its release, but future updates would not modify the tracker list in any way.

Now, by default, Privacy Badger will no longer learn about new trackers based on your browsing. All users (with the default settings) will use the same tracker-blocking list, generated by Badger Sett. In future updates to Privacy Badger, we plan to update everyone’s tracker lists with new data compiled by Badger Sett. That means users who do not opt in to local learning will continue receiving information about new trackers we discover, keeping their Badgers up-to-date.

For anyone who opts back in to local learning, Privacy Badger will work exactly as it has in the past. These users will continue blocking trackers based on what their own Privacy Badger instance learns, and they will not receive automatic tracker list updates from EFF.

The trackers included in the pre-trained Badger Sett list are compiled using the same techniques Privacy Badger has always used: browsing to real websites, observing the behavior of third-party domains on those sites, and logging the trackers among them. Regardless of how you choose to use Privacy Badger, it will continue to adapt to the state of trackers in the wild.

Why is local learning still an option?

Privacy Badger is meant to be a no-configuration-necessary, mostly install-and-forget kind of tool. We feel comfortable turning off local learning because we believe the majority of Privacy Badger’s protection is already captured by the pre-trained list, and we don’t want to expose users to any potential risk without informed opt-in. But we’re leaving local learning as an option because we think it presents a reasonable tradeoff that users should be able to make for themselves.

The main risk of enabling local learning is that a bad actor can manipulate Privacy Badger’s state in order to create a unique identifier, a kind of Privacy Badger-specific fingerprint. A tracker that does this can then identify the user across sites where the tracker can run JavaScript. Additionally, local learning enables a limited form of history sniffing where the attacker can try to determine whether a Privacy Badger user had previously visited a particular website by seeing how many strikes it takes for Privacy Badger to learn to block a (legitimate) third-party domain that appears only on that website. We see these as serious concerns but not showstoppers to local learning altogether.

There are already many other kinds of information the browser discloses that can be used for fingerprinting. Most common fingerprinters use a combination of techniques, often wrapped up in a single script (such as FingerprintJS). Detecting any one of the techniques in use is enough for Privacy Badger to flag the domain as a fingerprinter. Compared with existing methods available to bad actors, fingerprinting Privacy Badger’s local learning is likely to be less reliable, more resource-intensive, and more visible to users. Going forward, it will only apply to the small subset of Web users who have Privacy Badger installed and local learning enabled. Furthermore, if caught, companies will face reputational damage for exploiting users’ privacy protections.

The risk of history sniffing is also not unique to Privacy Badger. Known history sniffing attacks remain in both Firefox and Chrome. Exploiting Privacy Badger to ascertain bits of users’ history will be limited to Privacy Badger users with local learning enabled, and to websites which use unique third-party domains. This is then further limited by Privacy Badger’s pre-training (did the user visit the domain, or was the domain visited in pre-training?) and Privacy Badger’s list of domains that belong to the same entity (domains on that list will always be seen as first party by Privacy Badger and thus immune to this exploit). Existing browser history sniffing attacks are not bound by these limitations.

Some users might want to opt back in to local learning. The pre-trained list is designed to learn about the trackers present on thousands of the most popular sites on the Web, but it does not capture the “long tail” of tracking on websites that are less popular. If you regularly browse websites overlooked by ad/tracker blocker lists, or if you prefer a more hands-on approach, you may want to visit your Badger’s options page and mark the checkbox for learning to block new trackers from your browsing.

The future

Privacy Badger still comes with all of its existing privacy benefits like outgoing link tracking protections on Google and Facebook and click-to-activate replacements for potentially useful third-party widgets.

In the coming months, we will work on expanding the reach of Badger Sett beyond U.S.-centric websites to capture more trackers in our pre-trained lists. We will keep improving widget replacement, and we will add new tracker detection mechanisms.

In the longer term, we will be looking into privacy-preserving community learning. Community learning would allow users to share the trackers their Badgers learn about locally to improve the tracker list for all Privacy Badger users.

Thanks again to Artur Janc, Krzysztof Kotowicz, Lukas Weichselbaum and Roberto Clapis of Google Security Team for responsibly disclosing these issues.

Activists Sue San Francisco for Wide-Ranging Surveillance of Black-Led Protests Against Police Violence

Wed, 10/07/2020 - 12:46
Violating San Francisco’s Surveillance Technology Ordinance, SFPD Secretly Used Camera Network to Spy on People Protesting Police Killing of George Floyd

San Francisco—Local activists sued San Francisco today over the city police department’s illegal use of a network of more than 400 non-city surveillance cameras to spy on them and thousands of others who protested as part of the Black-led movement against police violence.

The Electronic Frontier Foundation (EFF) and the ACLU of Northern California represent Hope Williams, Nathan Sheard, and Nestor Reyes, Black and Latinx activists who participated in and organized numerous protests that crisscrossed San Francisco, following the police killing of George Floyd.

During the first week of mass demonstrations in late May and early June, the San Francisco Police Department (SFPD), in defiance of a city ordinance, tapped into a sprawling camera network run by a business district to conduct live mass surveillance without first going through a legally required public process and obtaining permission from the San Francisco Board of Supervisors.

“San Francisco police have a long and troubling history of targeting Black organizers going back to the 1960s,” said EFF Staff Attorney Saira Hussain. “This new surveillance of Black Lives Matter protesters is exactly the kind of harm that the San Francisco supervisors were trying to prevent when they passed a critical surveillance technology ordinance last year. And still, with all eyes watching, SFPD brazenly decided to break the law.”

“In a democracy, people should be able to freely protest without fearing that police are spying and lying in wait,” said Matt Cagle, Technology and Civil Liberties Attorney at the ACLU of Northern California. “Illegal, dragnet surveillance of protests is completely at odds with the First Amendment and should never be allowed. That the SFPD flouted the law to spy on activists protesting the abuse and killing of Black people by the police is simply indefensible.”

“Along with thousands of people in San Francisco, I took to the streets to protest police violence and racism and affirm that Black lives matter,” said Hope Williams, the lead plaintiff in this lawsuit and a protest organizer. “It is an affront to our movement for equity and justice that the SFPD responded by secretly spying on us. We have the right to organize, speak out, and march without fear of police surveillance.”

Records obtained and released by EFF in July show SFPD received a real-time remote link to more than 400 surveillance cameras. The vast camera network is operated by the Union Square Business Improvement District (USBID), a non-city entity. These networked cameras are high definition, allow remote zoom and focus capabilities, and are linked to a software system that can automatically analyze content, including distinguishing between when a car or a person passes within the frame.

The lawsuit calls on a court to order San Francisco to enforce the Surveillance Technology Ordinance and bring the SFPD back under the law. San Francisco’s Surveillance Technology Ordinance was enacted in 2019 following a near unanimous vote of the Board of Supervisors.

The plaintiffs, all of whom participated in protests against police violence and racism in May and June of 2020, are:

  • Hope Williams, a Black San Francisco activist. Williams organized and participated in several protests against police violence in San Francisco in May and June 2020.
  • Nathan Sheard, a Black San Francisco activist and community organizer at EFF. In his personal capacity, Sheard attended one protest and helped connect protestors with legal support in May and June 2020.
  • Nestor Reyes, a Latinx activist, native San Franciscan, and community healer. Reyes organized and participated in several protests against police violence in San Francisco in May and June 2020.

For the complaint:
https://www.eff.org/document/williams-v-san-francisco-complaint

Link to video statement of attorneys and client:
https://youtu.be/8gYd9oZzdHg

Case pages:
EFF case page
ACLU case page

For more on police spying tech:

Contact:  SairaHussainStaff Attorneysaira@eff.org press@aclunc.org

Announcing Global Privacy Control in Privacy Badger

Wed, 10/07/2020 - 08:00

Today, we’re announcing that the upcoming release of Privacy Badger will support the Global Privacy Control, or GPC, by default.

GPC is a new specification that allows users to tell companies they'd like to opt out of having their data shared or sold. By default, Privacy Badger will send the GPC signal to every company you interact with alongside the Do Not Track (DNT) signal. Like DNT, GPC is transmitted through an HTTP header and a new Javascript property, so every server your browser talks to and every script it runs will know that you intend to opt out of having your data shared or sold. Compared with ad industry-supported opt-out mechanisms, GPC is simple, easy to deploy, and works well with existing privacy tools.

DNT vs. GPC

Do Not Track is an older proposed web standard, meant to tell companies that you don't want to be tracked in any way. (Learn more about what we mean by "tracking" here). Privacy Badger was built around DNT, and will continue to send a DNT signal along with every request your browser makes. Privacy Badger gives third-party companies a chance to comply with DNT by adopting EFF’s DNT policy, and blocks those that look like they're tracking you anyway.

If DNT already expresses your intent to opt out of tracking, why do we need GPC? When DNT was developed, many websites simply ignored users’ requests not to be tracked. That's why Privacy Badger has to act as an enforcer: trackers that don't want to comply with your wishes get blocked. Today, users in many jurisdictions, including California, Nevada, and the European Economic Zone, have the legal right to opt out of some kinds of tracking. That's where GPC comes in. 

GPC is an experimental new protocol for communicating opt-out requests that align with privacy laws. For example, the California Consumer Privacy Act gives California residents the right to opt out of having their data sold. By sending the GPC signal, Privacy Badger is telling companies that you would like to exercise your rights. And while Privacy Badger only enforces DNT compliance against third-party domains, GPC applies to everyone—the first-party sites you visit, and any third-party trackers they might invite in.

GPC is a new proposal, and it hasn't been standardized yet, so many sites will not respect it right away. Eventually, we hope GPC will represent a legally-binding request to all companies in places with applicable privacy laws.

To stop tracking, first ask, then act

The CCPA and other laws are not perfect, and many of our users continue to live in places without strong legal protections. That’s why Privacy Badger continues to use both approaches to privacy. It asks websites to respect your privacy, using GPC as an official request under applicable laws and DNT to express what our users actually want (to opt out of all tracking). It then blocks known trackers, who refuse to comply with DNT, from loading at all.

Starting this release, Privacy Badger will begin setting the GPC signal by default. Users can opt out of sending this signal, along with DNT, in their Privacy Badger settings. In addition, users can disable Privacy Badger on individual first-party sites in order to stop sending the GPC signal to those sites.

House Antitrust Report Is a Bold Prescription for Curing Big Tech’s Ills

Tue, 10/06/2020 - 23:30

The long-awaited report[pdf] by the House Judiciary Committee staff[1] on Big Tech’s monopoly power hits all the right notes—and just a few wrong ones. Following a year of hearings and research, the staff of the Subcommittee on Antitrust found that Facebook, Google, Amazon, and Apple all have either significant market power or outright monopoly power in a variety of markets. Many of the report’s recommendations echo calls EFF has also made, proof of just how obviously effective, needed, and common-sense they are.

The power of Big Tech weakens innovation, erodes privacy, and undermines “political and economic liberties,” says the report. We’re pleased to see the report go beyond U.S. antitrust law’s narrow focus on consumer prices. The report also recommends many of the interventions that EFF has championed: new requirements for interoperability, a tougher standard for approving mergers and acquisitions, and stepping up the DOJ and Federal Trade Commission enforcement of the antitrust laws.

Interoperability as a Remedy

EFF has long been pointing out the value of interoperability as a monopoly-killer and innovation promoter that harnesses the skills of diverse and widely distributed entrepreneurs, without the central planning of governments or giant tech firms. That’s why we’re pleased that one of the committee’s recommendations is to require the Big Tech firms to allow their services to interoperate with competitors, breaking the power of network effects. Policies to promote compatible products are “an important complement, not substitute, to vigorous antitrust enforcement,” says the report.

Privacy Focus

The report explains how “the persistent collection and misuse of consumer data” by Big Tech firms is a sign of their monopoly power and gets worse the closer to monopoly a company gets. For example, major privacy scandals and data breaches haven’t caused many people to stop using Facebook, which is evidence of the social network’s monopoly power. People continue to use Facebook not because they trust it, but because it’s where their friends and family are. The lack of competition has allowed the Big Tech firms to create a “race to the bottom” on privacy. Importantly, the report connects this to antitrust analysis: while most Facebook and Google services are free to the consumer, poor privacy protection means a lower-quality product that customers wouldn’t accept if they had alternatives. That’s a harm that antitrust laws can address.

Get Tougher on Mergers

The report also recommends raising the bar on approval of mergers and acquisitions by the dominant tech platforms through a burden-shift: before acquiring nascent tech firms, the Big Tech companies would need to prove that the acquisition would not increase monopoly power or substantially decrease competition. This shift is another measure that EFF has long supported, because it makes sense: merging firms always have the most information about impacts on consumers and competition, information that enforcers often have difficulty obtaining, especially with limited budgets for litigation.

For News Media, It’s Goliath vs. Goliath

The report stumbles when it makes recommendations about preserving news media in the face of declining advertising revenues. The report recommends offering news media companies an exemption from the antitrust laws, allowing them to join as a bloc to negotiate some form of payments from Big Tech news aggregators. The problem with this is that U.S. news media is itself a highly concentrated industry. Exempting another set of giant firms from antitrust scrutiny will tend to shift money from one set of monopolists to another, without providing more media diversity for consumers. The report recognizes that such exemptions are “disfavored” and may run contrary to the goals of antitrust law.

Overall, the Judiciary Committee report is a strong, evidence-based prescription for fixing antitrust law to help address the problems of Big Tech. We hope the conversation continues, with good changes to the law and increased enforcement yet to come.

[1] While much of the effort that led to the report was bipartisan, the final report was issued by the majority (Democratic) committee staff.

Orders from the Top: The EU’s Timetable for Dismantling End-to-End Encryption

Tue, 10/06/2020 - 16:49

The last few months have seen a steady stream of proposals, encouraged by the advocacy of the FBI and Department of Justice, to provide “lawful access” to end-to-end encrypted services in the United States. Now lobbying has moved from the U.S., where Congress has been largely paralyzed by the nation’s polarization problems, to the European Union—where advocates for anti-encryption laws hope to have a smoother ride. A series of leaked documents from the EU’s highest institutions show a blueprint for how they intend to make that happen, with the apparent intention of presenting anti-encryption law to the European Parliament within the next year.

The public signs of this shift in the EU—which until now has been largely supportive toward privacy-protecting technologies like end-to-end encryption—began in June with a speech by Ylva Johansson, the EU’s Commissioner for Home Affairs.

Speaking at a webinar on “Preventing and combating child sexual abuse [and] exploitation”, Johansson called for a “technical solution” to what she described as the “problem” of encryption, and announced that her office had initiated “a special group of experts from academia, government, civil society and business to find ways of detecting and reporting encrypted child sexual abuse material.”

The subsequent report was subsequently leaked to Politico. It includes a laundry list of tortuous ways to achieve the impossible: allowing government access to encrypted data, without somehow breaking encryption.

At the top of that precarious stack was, as with similar proposals in the United States, client-side scanning. We’ve explained previously why client-side scanning is a backdoor by any other name. Unalterable computer code that runs on your own device, comparing in real-time the contents of your messages to an unauditable ban-list, stands directly opposed to the privacy assurances that the term “end-to-end encryption” is understood to convey. It’s the same approach used by China to keep track of political conversations on services like WeChat, and has no place in a tool that claims to keep conversations private.

It’s also a drastically invasive step by any government that wishes to mandate it. For the first time outside authoritarian regimes, Europe would be declaring which Internet communication programs are lawful, and which are not. While the proposals are the best that academics faced with squaring a circle could come up with, it may still be too aggressive to politically succeed as  enforceable regulation—even if tied, as Johannsson ensured it was in a subsequent Commission communication, to the fight against child abuse.

But while it would require a concerted political push, EU’s higher powers are gearing up for such a battle. In late September, Statewatch published a note, now being circulated by the current EU German Presidency, called “Security through encryption and security despite encryption”, encouraging the EU’s member states to agree to a new EU position on encryption in the final weeks of 2020.

While conceding that “the weakening of encryption by any means (including backdoors) is not a desirable option”, the Presidency’s note also positively quoted an EU Counter-Terrorism Coordinator (CTC) paper from May (obtained and made available by German digital rights news site NetzPolitik.org), which calls for what it calls a “front-door”—a “legal framework that would allow lawful access to encrypted data for law enforcement without dictating technical solutions for providers and technology companies”.

The CTC highlighted what would be needed in order to legislate this framework:

The EU and its Member States should seek to be increasingly present in the public debate on encryption, in order to inform the public narrative on encryption by sharing the law enforcement and judicial perspective…

This avoids a one-sided debate mainly driven by the private sector and other nongovernmental voices. This may involve engaging with relevant advocacy groups, including victims associations that can relate to government efforts in that area. Engagement with the [European Parliament] will also be key to prepare the ground for possible legislation.

A speech by Commissioner Johannsson tying defeating secure messaging to protecting children; a paper spelling out “technical solutions” to attempt to fracture the currently unified (or “one-sided”) opposition; and, presumably in the very near future, once the EU has published its new position on encryption, a concerted attempt to lobby members of the European Parliament for this new legal framework: these all fit the Counter-Terrorist Coordinators’ original plans.

We are in the first stages of a long anti-encryption march by the upper echelons of the EU, headed directly toward Europeans’ digital front-doors. It’s the same direction as the United Kingdom, Australia, and the United States have been moving for some time. If Europe wants to keep its status as a jurisdiction that treasures privacy, it will need to fight for it.

California Community Leaders Call on Governor to Help Get State Broadband Up to Speed

Tue, 10/06/2020 - 15:57
Gov. Gavin Newsom Should Convene a Special Session to Pass Universal Access Law Before End of Year

Sacramento - More than 60 California community leaders—including public officials, businesses, education advocates, and civil rights groups—have joined the Electronic Frontier Foundation (EFF) and Common Sense Media to call on California Governor Gavin Newsom to convene a special legislative session to pass universal broadband access legislation this year.

The COVID-19 pandemic has accentuated California's longstanding broadband access crisis. More than 2 million Californians lack access to high-speed broadband today. As KQED recently reported, that includes some 1.2 million students across the state who lack adequate Internet access to do their work.

“Children should not be forced to do homework in fast food restaurant parking lots in the middle of a pandemic, and workers should not be forced to struggle with decades-old Internet infrastructure or literally no broadband access at all,” said Electronic Frontier Foundation’s Senior Legislative Counsel Ernesto Falcon.

The people of California need help, and the state should move forward now to begin the work needed to finally close the digital divide. Newsom himself has identified this as a pressing issue, recently signing an executive order to establish a state goal of 100 mbps download speeds for all Californians, a standard that meets the demands of today’s Internet use.

“Governor Newsom’s Executive Order sets us on the right course of connecting everyone to high-speed access. Now we need his help in pushing the legislature to deliver the money and changes needed in law to deliver on his promise,” said Falcon. “If he heeds our call to invoke a special session on broadband access, this coalition stands ready to push the legislature to follow his leadership.”

For the letter:
https://www.eff.org/document/letter-gov-newsom-special-session-broadband

For more information:
https://www.eff.org/deeplinks/2020/09/join-more-fifty-california-groups-calling-urgent-action-broadband-access

Supreme Court Hearing in Oracle v Google: Will the High Court Fix the Federal Circuit's Mess?

Tue, 10/06/2020 - 15:37

On Wednesday the U.S. Supreme Court will hear oral arguments in the long-running case of Oracle v. Google. We’ll be following closely, and looking for signs that the Court will reverse the Federal Circuit’s dangerous decisions in this ground-breaking litigation. And then we’ll be waiting and hoping the Court will issue an opinion explaining that giving copyright protection to Application Programming Interfaces (APIs) is a bad idea or, if that protection exists, that reimplementing them is a lawful fair use.

To summarize the last nine years: Oracle claims a copyright on the Java APIs, and that Google infringed that copyright by using certain Java APIs in the Android OS. When it created the Android OS, Google wrote its own version of Java. But in order to allow developers to write their own programs for Android, Google used certain specifications of the Java APIs. Since APIs are, generally speaking, specifications that let programs talk to each other, it would strike at the heart of innovation and collaboration in technology to declare them copyrightable.

EFF has filed numerous amicus briefs supporting Google and, more importantly, the pro-innovation stance it is taking in this case. As we’ve explained before, the two Federal Circuit opinions are a disaster for innovation in computer software. Its first decision--that APIs are entitled to copyright protection--ran contrary to the views of most other courts and the long-held expectations of computer scientists. Indeed, excluding APIs from copyright protection was essential to the development of modern computers and the Internet.

Then the second decision made things worse. The Federal Circuit's first opinion had at least held that a jury should decide whether Google’s use of the Java APIs was fair, and in fact a jury did just that. But Oracle appealed again, and in 2018 the same three Federal Circuit judges reversed the jury's verdict and held that Google had not engaged in fair use as a matter of law. Having gone to the trouble of sending this case to trial, at enormous expense to the parties and the court system, you might think the Federal Circuit would respect the jury’s decision. It did not. In the court’s view, the jury’s finding was simply advisory.

That ruling created enormous legal uncertainty for any software developer thinking about reimplementing pre-existing APIs. If the first Federal Circuit opinion means that APIs are copyrightable, and the second opinion means that a jury isn’t allowed to decide that using a competitor’s APIs is a fair use, then there are few, if any, ways that a second competitor can enter a market with an API-compatible product. 

Much of the argument Wednesday may be focused on a more procedural question: whether the Federal Circuit overstepped when it substituted its judgment for that of the jury on the second round. The Supreme Court asked for additional briefing on the standard of review, i.e., whether the Federal Circuit should have simply considered whether the jury’s conclusion was reasonable and, if it was, allowed the verdict to stand.

But we are hoping the final ruling takes a bolder step, and clarifies, once and for all, that the APIs at issue simply weren’t copyrightable in the first place. A ruling for Google on fair use grounds would set a good precedent for the next developer of API-compatible software to argue that their use is also fair. But those arguments take time, money, lawyers, and, thanks to the outrageous penalties associated with copyright infringement, come with a substantial risk. And beyond all those knowable costs, wedging a layer of copyright permissions culture into API compatibility comes with serious unknowable costs: how many developers will abandon ideas for competitive software because the legal risks are too great? Huge corporations like Google can take those chances. Small startups – and their investors – will not.

The Federal Circuit created a dangerous precedent that will only discourage competition and innovation just when we need it most. The Supreme Court can and should fix this mess.

 

 

 

 

 

 

 

Related Cases: Oracle v. Google

Come Back with a Warrant for my Virtual House

Mon, 10/05/2020 - 13:33

Virtual Reality and Augmented Reality in your home can involve the creation of an intimate portrait of your private life.  The VR/AR headsets can request audio and video of the inside of our house, telemetry about our movements, depth data and images that can build a highly accurate geometrical representation of your place, that can map exactly where that mug sits on your coffee table, all generated by a simultaneous localization and mapping (SLAM) system.  As Facebook’s Reality Labs explains, their “high-accuracy depth capture system, which uses dots projected into the scene in infrared, serves to capture the exact shape of big objects like tables and chairs and also smaller ones, like the remote control on the couch.” VR/AR providers can create “Replica re-creations of the real spaces that even a careful observer might think are real,” which is both the promise of and the privacy problem with this technology.

If the government wants to get that information, it needs to bring a warrant. 

Nearly twenty years ago, the Supreme Court examined another technology that would allow law enforcement to look through your walls into the sanctity of your private space—thermal imaging. In Kyllo v. United States, the Court held that a thermal scan, even from a public place outside the house, to monitor the heat emanating in your home was a Fourth Amendment search, and required a warrant.  This was an important case, building upon some earlier cases, like United States v. Karo, which found a search when the remote activation of a beeper showed a can of ether was inside a home. 

More critically, Kyllo established the principle that new technologies1 that can “explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant.” A VR/AR setup at home can provide a wealth of information—“details  of the home”—that was previously unknowable without the police coming in through the door.

This is important, not just to stop people from seeing the dirty dishes in your sink, or the politically provocative books on your bookshelf.  The protection of your home from government intrusion is essential to preserve your right to be left alone, and to have autonomy in your thoughts and expression without the fear of Big Brother breathing down your neck. While you can choose to share your home with friends, family or the public, the ability to make that choice is a fundamental freedom essential to human rights.

Of course, a service provider may require sharing this information before providing certain services.  You might want to invite your family to a Covid-safe housewarming, their avatars appearing in a exact replica of your new home, sharing the joy of seeing your new space. To get the full experience and fulfill the promise of the new technology, the details of your house—your furnishings, the art on your walls, the books on your shelf may need to be shared with a service provider to be enjoyed by your friends. And, at the same time, creating a tempting target for law enforcement wanting to look inside your house. 

Of course, the ideal would be that strong encryption and security measures would protect that information, such that only the intended visitors to your virtual house could get to wander the space, and the government would be unable to obtain the unencrypted information from a third-party.  But we also need to recognize that governments will continue to press for unencrypted access to private spaces. Even where encryption is strong between end points, governments may, like the United Kingdom, ask for the ability to insert an invisible ghost to attend the committee of correspondence meeting you hold in your virtual dining room. 

While it is clear that monitoring the real-time audio in your virtual home requires a wiretap order, the government may argue that they can still observe a virtual home in real-time. Not so.  Carpenter v. United States provides the constitutional basis to keep the government at bay when the technology is not enough.  Two years ago, in a landmark decision, the Supreme Court established that accessing historical records containing the physical locations of cellphones required a search warrant, even though they were held by a third-party. Carpenter cast needed doubt on the third-party doctrine, which allows access to third-party held records without a warrant, noting that “few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.”

Likewise, when the third-party doctrine was created in 1979, few could have imagined a society in which VR/AR systems can map, in glorious three dimensional detail, the interior of one’s home and their personal behavior and movements, conveying to the VR/AR service provider a detailed and comprehensive record of the goings on of a person’s house. Carpenter and Kyllo stand strongly for requiring a warrant for any information created by your VR/AR devices that shows the interior of your private spaces, regardless of whether that information is held by a service provider.

In California, where many VR/AR service providers are based, CalECPA generally requires a warrant or wiretap order before the government may obtain this sensitive data from service providers, with a narrow exception for subpoenas, where “access to the information via the subpoena is not otherwise prohibited by state or federal law.”  Under Kyllo and Carpenter, warrantless access to your home through VR/AR technology is prohibited by the ultimate federal law, the Constitution.

We need to be able to take advantage of the awesomeness of this new technology, where you can have a fully formed virtual space—and invite your friends to join you from afar—without creating a dystopian future where the government can teleport into a photo-realistic version of your house, able to search all the nooks and crannies measured and recorded by the tech, without a warrant. 

Carpenter led to a sea change in the law, and since has been cited in hundreds of criminal and civil cases across the country, challenging the third-party doctrine for surveillance sources, like real-time location tracking, 24/7 video cameras and automatic license plate readers. Still the development of the doctrine will take time. No court has yet ruled on a warrant for a virtual search of your house.  For now, it is up to the service providers to give a pledge, backed by a quarrel of steely-eyed privacy lawyers, that if the government comes to knock on your VR door, they will say “Come back with a warrant.” 



  • 1. Kyllo used the phrase “device that is not in general public use,” which sets up an unfortunate and unnecessary test that could erode our privacy as new technologies become more widespread. Right now, the technology to surreptitiously view the interior of a SLAM-mapped home is not in general use, and even when VR and AR are ubiquitous, courts have recognized that technologies to surveil cell phones are not “in general public use,” even though the cell phones themselves are.

Judge Upends Vallejo’s Use of a Stingray

Fri, 10/02/2020 - 16:18

Cops in Vallejo have put their controversial cell-phone surveillance tool back in the box, after a judge released a tentative ruling (which the judge might or might not later finalize or amend) that they'd acquired it in violation of state law. The case was brought by Oakland Privacy,  the EFF Pioneer Award Winning organization and Electronic Frontiers Alliance member. They allege  that the city of Vallejo, California, may not use its cellular surveillance tool (often called a cell site simulator or stingray) because the police failed to get explicit approval from the city council, following input from residents, of an adequate privacy policy governing its use. According to the tentative ruling (again, it is not final), police must acquire from Vallejo City council a “resolution or ordinance authorizing a specific usage and privacy policy regarding that technology and meeting the requirements” of the state statute. 

The City Council assembled via teleconference in spring 2020, amidst a state-wide pandemic related shelter-in-place order, to vote for the purchase of this controversial piece of surveillance equipment. It did so without adequately obtaining input from the public. 

What’s worse, the city council approved the purchase in violation of state law (S.B. 741) regulating the acquisition of such technology. To ensure democratic control over whether police may obtain cell-site simulators, the California legislature passed it in 2015. EFF advocated to enact it. The law prohibits local government agencies from acquiring cell-site simulators without the local governing body approving a specific privacy and usage policy that “is consistent with respect for an individual’s privacy and civil liberties.” This policy needs to be available to the public, published online, and voted on during an open hearing. But the Vallejo city council did not consider and approve such a policy when it purported to approve purchase of the technology. 

After the judge’s tentative ruling, the Vallejo City Council announced it would be putting a privacy and use policy for this already-purchased machine on the docket for public discussion on October 27. As Oakland Privacy writes on their blog, “This meeting will provide an opportunity for Vallejo residents to read, review and comment upon the policy prior to adoption by the City.” We urge members of the public to turn out and voice their concerns about Vallejo police obtaining expensive new surveillance technology that can intrude on privacy, chill free speech, and disparately burden people of color.

A cell-site simulator pretends to act as a cell tower in order to locate cellular devices that connect to it. Cell phones in an area connect to the device rather than the actual tower, allowing police to see unique identifiers that could be used to identify or track people. Police most commonly use cell site simulators to locate a known phone in an unknown location (for example, to find a person wanted on a warrant), or to identify the unknown phones in a known location (for example, to learn the identity of protesters at a rally). After borrowing such a device from another agency, the Vallejo Police Department argued it needed its own, and proposed spending $766,000 on cell-site simulator devices from KeyW Corporation, along with a vehicle in which police would install it.

Police claim that cell-site simulators are a valuable tool in fighting terrorism and crime--but the truth is police often use them to target low-level infractions. For example, Maryland police deployed a stingray to collect information on the customers of a pizza shop in an attempt to find the thief that absconded with around $50 worth of chicken wings and subs. Worse, there are serious concerns that police use stingrays to identify people who exercise their First Amendment right to attend political demonstrations and protests.

Oakland Privacy’s lawsuit is an important test of CCOPS (Community Control Over Police Surveillance) ordinances, which cities around the country are adopting in order to ensure democratic control over what technology their police departments are able to acquire and use. 

We applaud this tentative ruling as a sign that protective CCOPS ordinances can prevent police from acquiring and using invasive technology without any oversight or accountability. And we applaud Oakland Privacy for bringing this case. 

Urgent: EARN IT Act Introduced in House of Representatives

Fri, 10/02/2020 - 09:27

The dangerous EARN IT Act passed the Senate Judiciary Committee last month, and now it’s been introduced in the House of Representatives.

Take Action

Tell Congress to Reject the Earn It Act

We need your help to stop this anti-speech, anti-security bill. Email your elected officials in both chambers of Congress today and ask them to publicly oppose the EARN IT Act.

The EARN IT Act would allow all 50 state legislatures, as well as U.S. territories and Washington D.C., to pass laws that would regulate the Internet. By breaking Section 230 of the Communications Decency Act, the EARN IT bill would allow small website owners to be sued or prosecuted under state laws, as long as the prosecution or lawsuit somehow related to crimes against children.

We know how websites will react to this. Once they face prosecution or lawsuits based on other peoples’ speech, they’ll monitor their users, and censor or shut down discussion forums. 

The bill also creates an advisory commission on Internet “best practices” that will be dominated by Attorney General William Barr and law enforcement agencies. Barr’s view on Internet “best practices” is well known—he wants to break encryption and let police read every message sent online.

Public outcry has already forced amendments into the EARN IT Act that purport to defend encryption—but they’re full of loopholes. That window dressing doesn’t fix the bill’s many flaws. 

Take Action

Tell Congress to Reject the Earn It Act

The Online Content Policy Modernization Act Is an Unconstitutional Mess

Thu, 10/01/2020 - 17:41

EFF is standing with a huge coalition of organizations to urge Congress to oppose the Online Content Policy Modernization Act (OCPMA, S. 4632). Introduced by Sen. Lindsey Graham (R-SC), the OCPMA is yet another of this year’s flood of misguided attacks on Internet speech (read bill [pdf]). The bill would make it harder for online platforms to take common-sense moderation measures like removing spam or correcting disinformation, including disinformation about the upcoming election. But it doesn’t stop there: the bill would also upend longstanding balances in copyright law, subjecting ordinary Internet users to up to $30,000 in fines for everyday activities like sharing photos and writing online, without even the benefit of a judge and jury.

The OCPMA combines two previous bills. The first—the Online Freedom and Viewpoint Diversity Act (S. 4534)—undermines Section 230, the most important law protecting free speech online. Section 230 enshrines the common-sense principle that if you say something unlawful online, you should be the one held responsible, not the website or platform where you said it. Section 230 also makes it clear that platforms have liability protections for the decisions they make to moderate or remove online speech: platforms are free to decide their own moderation policies however they see fit. The OCPMA would flip that second protection on its head, shielding only platforms that agree to confine their moderation policies to a narrowly tailored set of rules. As EFF and a coalition of legal experts explained to the Senate Judiciary Committee:

This narrowing would create a strong disincentive for companies to take action against a whole host of disinformation, including inaccurate information about where and how to vote, content that aims to intimidate or discourage people from casting a ballot, or misleading information about the integrity of our election systems. S.4632 would also create a new risk of liability for services that “editorialize” alongside user-generated content. In other words, sites that direct users to voter-registration pages, that label false information with fact-checks, or that provide accurate information about mail-in voting, would face lawsuits over the user-generated content they were intending to correct.

It's easy to see the motivations behind the Section 230 provisions in this bill, but they simply don’t hold up to scrutiny. This bill is based on the flawed premise that social media platforms’ moderation practices are rampant with bias against conservative views; while a popular meme in some right-wing circles, this view doesn’t hold water. There are serious problems with platforms’ moderation practices, but the problem isn’t the liberal silencing the conservative; the problem is the powerful silencing the powerless. Besides, it’s absurd to suggest that the situation would somehow be improved by putting such severe limits on how platforms moderate; the Internet is a better place when multiple moderation philosophies can coexist, some more restrictive and some more freeform.

The government forcing platforms to adopt a specific approach to moderation is not just a bad idea; in fact; it’s unconstitutional. As EFF explained in its own letter to the Judiciary Committee:

The First Amendment prohibits Congress from directly interfering with intermediaries’ decisions regarding what user-generated content they host and how they moderate that content. The OCPM Act seeks to coerce the same result by punishing services that exercise their rights. This is an unconstitutional condition. The government cannot condition Section 230’s immunity on interfering with intermediaries’ First Amendment rights.

Sen. Graham has also used the OCPMA as his vehicle to bring back the CASE Act, a 2019 bill that would have created a new tribunal for hearing “small” ($30,000!) copyright disputes, putting everyday Internet users at risk of losing everything simply for sharing copyrighted images or text online. This tribunal would exist within the Copyright Office, not the judicial branch, and it would lack important protections like the right to a jury trial and registration requirements. As we explained last year, the CASE Act would usher in a new era of copyright trolling, with copyright owners or their agents sending notices en masse to users for sharing memes and transformative works. When Congress was debating the CASE Act last year, its proponents laughed off concerns that the bill would put everyday Internet users at risk, clearly not understanding what a $30,000 fee would mean to the average family. As EFF and a host of other copyright experts explained to the Judiciary Committee:

The copyright small claims dispute provisions in S. 4632 are based upon S. 1273, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (“CASE Act”), which could potentially bankrupt millions of Americans, and be used to target schools, libraries and religious institutions at a time when more of our lives are taking place online than ever before due to the COVID-19 pandemic. Laws that would subject any American organization or individual — from small businesses to religious institutions to nonprofits to our grandparents and children — to up to $30,000 in damages for something as simple as posting a photo on social media, reposting a meme, or using a photo to promote their nonprofit online are not based on sound policy.

The Senate Judiciary Committee plans to consider the OCPMA soon. This bill is far too much of a mess to be saved by amendments. We urge the Committee to reject it.

Vote for EFF on CREDO's October Ballot

Thu, 10/01/2020 - 12:35

Right now you can help EFF receive a portion of a $150,000 donation pool just by casting your vote! EFF is one of the three nonprofits featured in CREDO's giving group this month, so if you vote for EFF by October 31 you will direct a bigger piece of the donation pie toward protecting online freedom.

Since its founding, CREDO's mobile, energy, long distance, and credit card services customers have raised more than $90 million for charity. Their mobile customers generate the funds as they use paid services, and each month CREDO encourages the public to choose from three nonprofit recipients that drive positive change.

Anyone in the U.S. can visit the CREDO Donations site and vote for EFF, so spread the word! The more votes we receive, the higher our share of this month's donation pool.

EFF is celebrating its 30th year of fighting for technology users, and your rights online have never mattered more than they do today. Your privacy, access to secure tools, and free expression play crucial roles in seeing us through the pandemic, protecting human rights, and ensuring a brighter future online. Help defend digital freedom and vote for EFF today!

Broad Coalition Urges Court Not to Block California’s Net Neutrality Law

Wed, 09/30/2020 - 19:25

After the federal government rolled back net neutrality protections for consumers in 2017, California stepped up and passed a bill that does what FCC wouldn’t: bar telecoms from blocking and throttling Internet content and imposing paid prioritization schemes. The law, SB 822, ensures that that all Californians have full access to all Internet content and services—at lower prices.

Partnering with the ACLU of Northern California and numerous other public interest advocates, businesses and educators, EFF filed an amicus brief today urging a federal court to reject the telecom industry’s attempt to block enforcement of SB 822. The industry is claiming that California’s law is preempted by federal law—despite a court ruling that said the FCC can’t impose nationwide preemption of state laws protecting net neutrality.

Without legal protections, low-income Californians who rely on mobile devices for internet access and can’t pay for more expensive content are at a real disadvantage. Their ISPs could inhibit full access to the Internet, which is critical for distance learning, maintaining small businesses, and staying connected. Schools and libraries are justifiably concerned that without net neutrality protections, paid prioritization schemes will degrade access to material that students and public need in order to learn. SB 822 addresses that by ensuring that large ISPs do not take advantage of their stranglehold on Californians’ Internet access to slow or otherwise manipulate Internet traffic.

The large ISPs also have a vested interest in shaping Internet use to favor their own subsidiaries and business partners, at the expense of diverse voices and competition. Absent meaningful competition, ISPs have every incentive to leverage their last-mile monopolies to customers’ homes and bypass competition for a range of online services. That would mean less choice, lower quality, and higher prices for Internet users—and new barriers to entry for innovators. SB 822 aims to keep the playing field level for everyone.

These protections are important all of the time, but doubly so in crises like the ones California now faces: a pandemic, the resulting economic downturn, and a state wildfire emergency. And Internet providers have shown that they are not above using emergencies to exploit their gatekeeper power for financial gain. Just two years ago, when massive fires threatened the lives of rescuers, emergency workers, and residents, the Santa Clara fire department found that it’s “unlimited” data plan was being throttled by Verizon. Internet access on a vehicle the department was using to coordinate its fire response slowed to a crawl. When contacted, the company told firefighters that they needed to pay more for a better plan.

Without SB 822, Californians – and not just first responders – could find themselves in the same situation as the Santa Clara Fire Department: unable, thanks to throttling or other restrictions, to access information they need or connect with others. We hope the court recognizes how important SB 822 is and why the telecom lobby shouldn’t be allowed to block its enforcement.

Related Cases: California Net Neutrality Cases - American Cable Association, et al v. Xavier Becerra and United States of America v. State of California

Tell the Department of Homeland Security: Stop Collecting DNA and other Biometrics

Tue, 09/29/2020 - 12:25

Update (9/30/20): EFF submitted a request to extend the comment deadline by 30 days since federal agencies must generally provide the public a 60-day comment period. If the extension is granted, we will update this page accordingly.

We need your help. On September 11, 2020, the Department of Homeland Security (DHS) announced its intention to significantly expand both the number of people required to submit biometrics during routine immigration applications and the types of biometrics that individuals must surrender. This new rule will apply to immigrants and U.S. citizens alike, and to people of all ages, including, for the first time, children under the age of 14. It would nearly double the number of people from whom DHS would collect biometrics each year, to more than six million. The biometrics DHS plans to collect include palm prints, voice prints, iris scans, facial imaging, and even DNA—which are far more invasive than DHS’s current biometric collection of fingerprints, photographs, and signatures.  (For an incisive summary of the proposed changes, click here.)

DHS has given the public until October 13, 2020 to voice their concerns about this highly invasive and unprecedented proposal. If you want your voice heard on this important issue, you must submit a comment through the Federal Register. Your visit to their website and comment submission are subject to their privacy policy which you can read here.

Take action

fill out the form to tell the Department of Homeland Security not to expand the collection DNA and other biometrics

Immigrating to the United States, or sponsoring your family member to do so, should not expose your most intimate and sensitive personal data to the U.S. government. But that’s what this new rule will do, by permitting DHS to collect a range of biometrics at every stage of the “immigration lifecycle.” The government does not, and should not, take DNA samples of every person born on U.S. soil—so why should it do the same for immigrants coming to the United States or U.S. citizens seeking to petition a family member?  

We cannot allow the government to normalize, justify, or develop its capacity for the mass collection of DNA and other sensitive biometrics. This move by DHS brings us one step closer to mass dragnet genetic surveillance. It also risks that people’s biometric information will be vulnerable to breach or future misuse by expanding the types of biometrics collected from each individual, storing all data together in one database, and using a unique identifier to link several biometrics to each person. The U.S. government has shown time and time again that it cannot protect our personal data. In 2019, DHS admitted that the images of almost 200,000 people taken for its face recognition pilot, as well as automated license plate reader data, were released onto the dark web after a cyberattack compromised a subcontractor. In 2015, the Office of Personnel Management admitted a breach of 5.6 million fingerprints, in addition to the SSNs and other personal information of more than 25 million Americans. We cannot run the risk of similar infiltrations happening again with people’s DNA, voice prints, iris scans, or facial imaging.

Click the external link and tell DHS: I oppose the proposed rulemaking, which would allow the Department of Homeland Security to vastly increase the types of biometrics it collects, as well as double the number of people from whom it collects such biometrics, including children. These actions create security and privacy risks, put people in the United States under undue suspicion, and make immigrants and their U.S. citizen family members vulnerable to surveillance and harassment based on race, immigration status, nationality, and religion.

Take action

fill out the form to tell the Department of Homeland Security not to expand the collection DNA and other biometrics

California Community Leaders Call for Urgent Action on Broadband Access—Add Your Organization to the List

Tue, 09/29/2020 - 12:13

More than fifty California organizations, businesses, and public officials—including the AARP of California, the San Francisco Tech Council, the California Center for Rural Policy, the Khan Academy, and a number of California cities and counties—join Common Sense Kids Action and EFF in urging Governor Gavin Newsom to call the legislature back into a special session to address the state’s digital divide.

The COVID-19 pandemic has accentuated California's longstanding broadband access crisis. Governor Newsom himself has identified this as a pressing issue, with a recent executive order to establish a state goal of 100 mbps download speeds for all Californians. More than 2 million Californians lack access to high-speed broadband today. As KQED recently reported, that includes some 1.2 million students across the state who lack adequate Internet access to do their work. In a nationwide survey from Common Sense on the “homework gap,” 12 percent of teachers say a majority of their students lack home access to the internet or a computer to do schoolwork at home, though 20 percent of K-2 students and 41 percent of high school students need broadband internet access outside of school at least once a week.

And that’s in a normal year. But this is not a normal year. Lack of access has become an emergency for students today as schooling becomes remote in response to the pandemic. Many students with no access at home have been cut off from school computer labs, libraries, or other places where they may usually get the access they need. This type of situation is exactly what led to the viral pictures of two Salinas students—who clearly wanted to learn—doing their school work on the sidewalk outside the local Taco Bell.

It doesn’t have to be like this. California, home to the world’s fifth-largest economy, has solutions available. In this past legislative session, Sen. Lena Gonzalez built broad support for a deal that would have secured more than 100 million dollars a year to secure access to high-speed Internet for families, first responders, and seniors across the state. EFF and Common Sense were proud to sponsor that bill, but despite support from the California Senate and the governor’s office, California Assembly leadership refused to hear the bill and stopped it at the last moment.

California families face these problems every day—regardless of whether their representatives are willing to help them or not. But the people of California need help, and the state should move forward now to begin the work needed to finally close the digital divide.

The following organizations have already joined the call, and we hope Governor Newsom will listen.

If your organization also believes that California cannot wait to start closing the digital divide, please reach out to Senior Legislative Counsel Ernesto Falcon or Legislative Activist Hayley Tsukayama to add your name to the list. 

Signers:

AARP California

Access Humboldt

Access Now

California Center for Rural Policy

Canal Alliance

Central Coast Broadband Consortium

City of Daly City

City of Farmersville

City Council Member, City of Gonzales

City of Greenfield

City of Watsonville

Consumer Reports

Common Sense Kids Action

Council Member, City of Gonzales

County of Monterey

EraseTheRedline Inc.

Electronic Frontier Foundation

Fight for the Future

Founder Academy

Gigabit Libraries Network

GoNoodle

Great School Choices

Indivisible Sacramento

InnovateEDU

Intertie Inc.

Khan Academy

King City Mayor Pro tempore

LA Tech4Good

Latino Community Foundation

MakeKnowledge

Mayor, City of Huron

Mayor, City of Soledad

MediaJustice

Modesto City Councilmember, District 2

Monkeybrains

Monterey County Supervisor, District 1

My Yute Soccer

National Cristina Foundation

National Digital Inclusion Alliance

National Hispanic Media Coalition

New America's Open Technology Institute

Oakland African American Chamber of Commerce

Open Door Community Health Centers

OpenMedia

Peninsula Young Democrats

Public Knowledge

San Francisco Tech Council

School on Wheels

Schools, Health & Libraries Broadband (SHLB) Coalition

The Education Trust-West

The Greenlining Institute

Mayor, Town of Colma

Trueblood Strategy

Bust 'Em All: Let's De-Monopolize Tech, Telecoms AND Entertainment

Mon, 09/28/2020 - 12:22

The early 1980s were a period of tremendous foment and excitement for tech. In the four years between 1980 and 1984, Americans met:

But no matter how exciting things were in Silicon Valley during those years, even more seismic changes were afoot in Washington, D.C., where a jurist named Robert Bork found the ear of President Reagan and a coterie of elite legal insiders and began to fundamentally reshape US antitrust law.

Bork championed an antitrust theory called "the consumer welfare standard," which reversed generations of American competition law, insisting that monopolies and monopolistic conduct were rarely a problem and that antitrust law should only be invoked when there was "consumer harm" in the form of higher prices immediately following from a merger or some other potentially anti-competitive action.

Tech and lax antitrust enforcement grew up together. For 40 years, we've lived through two entwined experiments: the Internet and its foundational design principle that anyone should be able to talk to anyone using any protocol without permission from anyone else; and the consumer welfare standard, and its bedrock idea that monopolies are not harmful unless prices increase.

It's not a pretty sight. Forty years on and much of the dynamism of technology has been choked out of the industry, with a few firms attaining seemingly permanent dominance over our digital lives, maintaining their rule by buying or merging with competitors, blocking interoperability, and holding whole markets to ransom.

Thankfully, things are starting to change. Congress's long-dormant appetite for fighting monopolists is awakening, with hard-charging hearings and far-reaching legislative proposals.

And yet... Anyone who hangs out in policy circles has heard the rumors: this was all cooked up by Big Cable, the telecom giants who have been jousting with tech over Net Neutrality, privacy, and every other measure that allowed the public to get more value out of the wires in our homes or the radio signals in our skies without cutting in the telecoms for a piece of the action.

Or perhaps it's not the telecoms: maybe it's Big Content, the giant, hyper-consolidated entertainment companies (five publishers, four movie studios, three record labels), whose war on tech freedom has deep roots: given all their nefarious lobbying and skullduggery, is it so hard to believe they'd cook up a fake grassroots campaign to defang Big Tech under color of reinvigorating antitrust?

In any event, why selectively enforce competition laws against tech companies, while leaving these other sectors unscathed?

Why indeed? Who said anything about leaving telecoms or entertainment untouched by antitrust? The companies that make up those industries are in desperate need of tougher antitrust enforcement, and we're here for it.

Who wouldn't be? Just look at the telecoms industry, where cable and phone companies have divided up the nation like the Pope dividing up the "New World," so that they never have to compete head to head with one another. This sector is the reason that Americans pay more for slower broadband than anyone else in the world, and the pandemic has revealed just how bad this is.

When Frontier declared bankruptcy early in the Covid-19 crisis, its disclosures revealed the extent to which American families were being victimized by these monopolies: Frontier's own planning showed that it could earn $800,000,000 in profits by providing 100gb fiber to three million households, but it did not, because the company's top execs were worried that spending money to build out this profitable fiber would make the company's share price dip momentarily, and since a) these execs are mostly paid in stock; and b) none of those households had an alternative, Frontier left nearly $1 billion on the table and three million households on ancient, unreliable, slow Internet connections.

The big telcos and cable operators are in sore need of adult supervision, competitive pressure, and Congressional hearings.

And things are no better in the world of entertainment, where a string of mergers —most recently the nakedly anticompetitive Disney-Fox merger—has left performers and creators high and dry, with audiences hardly faring any better.

Anyone who tells you that we shouldn't fight tech concentration because the telecom or entertainment industry is also monopolistic is missing the obvious rejoinder: we should fight monopoly in those industries, too.

In boolean terms, trustbusting tech, entertainment, and cable is an AND operation, not a XOR operation.

Besides, for all their public performance of hatred for one another, tech, content, and telcos are perfectly capable of collaborating to screw the rest of us. If you think tech isn't willing to sell out Net Neutrality, you need to pay closer attention. If you think that tech is the champion who'll keep the entertainment lobby from installing automated copyright filters, think again. And if you think all competing industries aren't colluding in secret to rig markets, we've got some disturbing news for you.

Surviving the 21st Century is not a matter of allying yourself with a feudal lord—choosing Team Content, Team Tech, or Team Telecomand hoping that your chosen champion will protect you from the depredations of the others.

If we're gonna make it through this monopolistic era of evidence-free policy that benefits a tiny, monied minority at the expense of the rest of us, we need to demand democratic accountability for market abuses, demand a pluralistic market where dominant firms are subjected to controls and penalties, where you finally realize birthright of technological self-determination.

If Big Cable and Big Content are secretly gunning for Big Tech with antitrust law, they're making a dangerous bet: that trustbusting will be revived only to the extent that it is used to limit Big Tech, and then it will return to its indefinite hibernation. That's not how this works. Even if tech is where the new trustbusting era starts, it's not where it will end.

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