District Court Rejects CDT's Challenge Of Trump's Ridiculous Executive Order On Section 230

from the no-standing dept

Back in May, you may recall, Donald Trump issued his silly executive order on Section 230 in response to Twitter adding a couple fact checks to blatant conspiracy theory nonsense that Trump was posting. A week later, the Center for Democracy and Technology (CDT) sued over the executive order, arguing that it was unconstitutional, and clearly retaliatory against Twitter.

When CDT filed the lawsuit I noted that the big question would be whether or not CDT could show standing in order to challenge the order, as it would be harder to prove that it impacted CDT directly. CDT argued that because the executive order would divert its attention and resources away from other, more important, fights regarding free speech online and government surveillance, it injured the organization.

On Friday, a judge agreed with my initial gut reaction and said that CDT failed to show standing. Basically, since the order only directed the government to do a bunch of stupid things, it didn't really impact CDT.

But Order 13,925 is most notable at this point for what it does not do. It imposes no obligation on CDT (or any other private party), but it merely directs government officials to take preliminary steps towards possible lawmaking. CDT’s claimed injury is not concrete or imminent and is thus insufficient to establish Article III standing. Even if CDT managed to clear the standing hurdle, it faces redressability and ripeness problems too. The Court will therefore dismiss this case for lack of jurisdiction.

The claim that this silly waste of time diverted resources from more serious issues doesn't impress the court:

If an organization alleges “only impairment of its advocacy,” that “will not suffice” to show standing. Turlock, 786 F.3d at 24; see also Food & Water Watch, 808 F.3d at 919 (“Our precedent makes clear that an organization’s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury.”). “This is true whether the advocacy takes place through litigation or administrative proceedings.” Turlock, 786 F.3d at 24. More, “an organization does not suffer an injury in fact where it expends resources to educate its members and others unless doing so subjects the organization to operational costs beyond those normally expended.” Food & Water Watch, 808 F.3d at 920 (cleaned up).

Though somewhat ridiculously the judge, Trevor McFadden (appointed by Donald Trump), actually throws in an incredibly silly line, claiming that CDT should be applauding Donald Trump's executive order, which he suggests (laughably) is about protecting free speech online.

CDT has not met its burden to show an injury to its interests. To begin, there does not appear to be a “direct conflict” between Order 13,925 and CDT’s stated mission. The Order expresses “the policy of the United States to foster clear ground rules promoting free and open debate on the internet.” ... CDT asserts a similar mission—to “advocat[e] in favor of First Amendment protection for speech on the Internet.” ... One would think that CDT would applaud the President’s desire to prevent online censorship. But no matter. The Court will take CDT at its word and assume that Order 13,925 directly conflicts with its interests. ... It still has not established an Article III injury.

That seems quite silly. Just because Trump's exec order claimed to be promoting free and open debate on the internet, the whole point was to move to stifle speech online, and that's what CDT was pointing out. Still, the standing point is a big one and CDT can't jump over that hurdle:

CDT has not alleged that Order 13,925 has “perceptibly impaired” its “ability to provide services.” Turlock, 786 F.3d at 24 (cleaned up). It claims that because of the Order it will have to “devote substantial resources to”: “participating in the planned FCC rulemaking proceeding,” “monitoring federal agencies’ reports,” “tracking any FTC action,” “participating in any proceedings that the Commission institutes,” and “engaging with federal and state policymakers.”...

This is plainly deficient. Circuit precedent is “clear that an organization’s use of resources for . . . advocacy is not sufficient to give rise to an Article III injury,” Food & Water Watch, 808 F.3d at 919, “whether the advocacy takes place through litigation or administrative proceedings,” Turlock, 786 F.3d at 24. CDT’s alleged injury—resources spent monitoring federal agencies, participating in their proceedings, and working with lawmakers—is one to its advocacy work, which is not a cognizable injury. ... In other words, CDT has shown that it is engaging in business as usual, not that Order 13,925 “causes an inhibition of [its] daily operations.” ...

All in all this is disappointing, but not unexpected. In the meantime, the executive order has already created its own mess in the form of the NTIA petition to the FCC to reinterpret Section 230, which the FCC, led by total hypocrite Ajit Pai, has agreed to move forward with.

CDT may not have had standing to challenge the bogus order, but the order has still created a huge mess for the open internet. It was the kind of mess that principled people could have stopped much earlier, but they all went along with it, either because they're too clueless to understand Section 230 or they're too afraid of Donald Trump pointing his angry temper tantrums in their direction. One hopes that the issue will die with the new administration, but with recent moves like appointing the author of the NTIA petition to the FCC, and some other rumors -- combined with Biden's top tech advisor pushing to ditch 230 entirely -- the trail of destruction this executive order is causing isn't likely to end any time soon.

Filed Under: donald trump, executive order, section 230, standing
Companies: cdt

Yes, You Can Believe In Internet Freedom Without Being A Shill

from the a-little-history-lesson dept

You may have noticed lately that there's an increasing (and increasingly coordinated) effort to paint today's biggest and most successful companies as some kind of systemic social threat that needs to be reined in. As veteran tech journalist John Battelle put it, tech companies frequently are assumed these days to be Public Enemy No. 1, and those of us who defend the digital world in which we now find ourselves are presumptively marked as shills for corporate tech interests.

But a deeper historical understanding of how we got to today's internet shows that the leading NGOs and nonprofit advocacy organizations that defend today's internet-freedom framework actually predate the very existence of their presumed corporate masters.

To get taste a of the current policy debate surrounding Google and other internet companies, consider the movie I Am Jane Doe, which documents the legal battle waged by anti-sex-trafficking groups and trafficking victims against the website Backpage.com. The film, which premiered this February with a congressional screening, also tracks a two-year investigation and report by the Senate Subcommittee on Investigations into the site's symbiotic relationship with traffickers.

The documentary is powerful and powerfully effective. It has managed to accomplish what few works of art can – encourage Congress to fast-track legislative action. Last month, a powerful group of 27 bipartisan cosponsors introduced new legislation targeting Backpage.com titled the Stop Enabling Sex Traffickers Act, or SESTA. While there were rumors the bill would be attached to the upcoming "must-pass" defense authorization bill, it now appears it will move through regular order, with a hearing in the Senate Commerce Committee scheduled for Sept. 19.

Some documentarians strive to be perceived as neutral chroniclers, but I Am Jane Doe producer Mary Mazzio has lobbied aggressively on behalf of the bill. The film's official website and social media accounts have also jumped into the fight, publishing legislative guides and lobbying materials, as well as rallying a coalition to go after the bill's opponents.

Here's our problem with Mazzio's blunderbuss approach: since the bill's introduction, internet-freedom advocates (including a letter by R Street, the Copia Institute and others) as well as legal academics have raised alarm bells. In particular, the bill's overly broad provisions would gut key protections for free expression and digital commerce by amending a foundational law undergirding today's internet – Section 230 of the Communications Decency Act.

If you love even parts of what the internet has to offer, you likely owe thanks in some way or other to Section 230. We don't view any statute as immune from any criticism, but we do insist that any effort to chisel away at a law expressly crafted to protect and promote freedom of speech on the internet deserves a great deal of scrutiny. The problems posed by the proposed legislation are both expansive and complex, and internet freedom groups have the expertise to highlight these complexities.

Mazzio isn't one for complexity, as her film makes it a point to smear internet-freedom groups rather than address their arguments on the merits. The producers do interview experts from the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT), but ultimately paint those experts as shills for big tech companies. They allege advocates of online free speech and expression callously oppose commonsense efforts to curb trafficking simply because they would hurt big tech's bottom line.

This kind of rhetoric has continued throughout the advocacy campaign to pass SESTA.

But the film's promoters would be well-served to pay closer attention to the facts. Defenders of Section 230 aren't "supporting Backpage," any more than advocates of Fifth Amendment rights support criminals or oppose police. They also should look closer at the history.

While it may be easy to paint Section 230 proponents as shills for big tech because some of them sometimes receive funding from tech companies, the reality is that organizations like CDT and EFF supported these policies before today's Big Tech even existed. And other nonprofits, like the foundation that hosts the immensely valuable free resource Wikipedia, don't depend on corporate funding–they're primarily funded by individual donations–yet insist that Section 230 is what made it possible for them to exist.

While Google was founded in 1998 and Backpage.com launched in 2004, both CDT and EFF, who are mischaracterized in the film as ersatz public-interest advocates, were deeply engaged in the debate way back in 1995 over the Communications Decency Act. There's perhaps no greater evidence of how relatively un-slick and un-corporate those organizations were than their self-representations in the ASCII art newsletters of this pre-Google period supporting the bill that would later become Section 230 of the CDA:

Both organizations opposed almost all the language in the CDA and both spearheaded legal efforts that led to the CDA mostly being struck down by the U.S. Supreme Court in 1997. But both also supported the Cox/Wyden amendment that would later become Section 230 of the act, which also created legal protections for "good Samaritan" blocking of offensive material. The Cox/Wyden amendment was added to the Telecommunications Act in the Senate in 1995, and signed into law by President Bill Clinton on Feb. 8, 1996.

It's not just that Google and Backpage weren't around when Section 230 became law. Facebook wasn't founded until 2004, YouTube wasn't founded until 2005 and Twitter wasn't founded until 2006. This isn't just a coincidence. Our vibrant online ecosystem exists because of Section 230 and the liability protections it affords to online platforms. It is the law that made today's internet possible.

The Internet Association, a tech trade association that has helped lead industry opposition to SESTA, is mostly made up of tech companies (like Google, Facebook, Twitter, Airbnb, Yelp, Snap and Pinterest) that found success after the CDA and that rely, in one form or another, on its intermediary liability protections for user generated content. And keep in mind that it's not just tech giants that oppose SESTA's language amending Section 230. It's dozens of startups and medium-sized companies, too.

Indeed, as outlined in this letter from internet-freedom advocates, there are good reasons to think SESTA's proposed changes are hastily conceived and ill-suited to address the problems they purport to solve. Sex trafficking is a horrible crime, but Section 230 already does not protect sites like Backpage if they deliberately facilitate criminal acts. The limited immunity afforded to online platforms by Section 230 does not apply to any federal criminal law, nor should it apply to state criminal law if platforms are acting in bad faith. Furthermore, a 2015 amendment to sections of the federal code governing sex trafficking should make it even easier for federal prosecutors to go after sites that host ads for trafficking, although we still need time for the courts to interpret how it is applied.

The DOJ already has the power under current law–even without SESTA–to prosecute Backpage and its founders. Indeed, lawyers for Backpage acknowledged that "indictments may issue anytime" from a federal grand jury in Arizona. If they don't, it's the proper role of Congress to hold a hearing and ask Attorney General Jeff Sessions why they aren't prosecuting this case or those like it.

If we need additional resources for the FBI or the DOJ's criminal and civil rights divisions to investigate and prosecute these cases, that's a conversation worth having. It also bears examining whether Congress should clarify the standards for platforms that contribute to the development of user content, given the different interpretations among the circuits.

But what we're seeing in the "I Am Jane Doe" advocacy campaign is that SESTA's proponents don't want to have substantive conversations about the law. Instead, they want to create their own "fake news" version of what the issues are and rush their bill to passage, no matter the consequences.

Both the intended and unintended consequences of SESTA could be catastrophic. In effect, the law threatens to undermine all of Section 230's benefits to the global internet ecosystem in order to make it easier to prosecute Backpage and its founders, who seem likely to end up in jail no matter what. While today's tech giants will likely have the resources to navigate this in some form, the barriers it sets up could mean the next wave of internet platforms never come–and the ones that we have left are further incentivized to restrict speech. Rather than open a dialogue about current cases and the state of the law and how to refine Section 230's protections, SESTA proponents want to rush in with a legislative chainsaw to carve out vast new liabilities for online platforms–the same platforms that provide us with the internet we love and upon which we all now rely.

If Congress rushes to pass SESTA without listening to the substantive arguments of the bill's critics, it will be making a catastrophic mistake.

Mike Godwin is a senior fellow with the R Street Institute who worked extensively on the CDA at EFF in the mid-1990s. Godwin later worked for the Center for Democracy and Technology as well. Zach Graves is technology policy director at the R Street Institute.

Filed Under: cda 230, free speech, internet, internet freedom, section 230, sesta
Companies: cdt, eff, google

Complaint Filed Over Sketchy VPN Service

from the deceptive-trade-practices dept

VPNs are important... for some situations. Unfortunately, the message that many have received in hearing about the importance of VPNs is that they somehow "protect your privacy." But that's always been wrong. They just move the privacy questions somewhere else. And sometimes it's a sketchy place. A few months back we discussed this very issue with some security experts on our podcast. All VPNs do is create a secure tunnel from where you are to somewhere else. That's useful if you don't want other people sitting in the Starbucks with you to pick up your unencrypted traffic (or other people in your hotel on the hotel WiFi), but it doesn't solve anything on larger privacy questions. The always excellent SwitfOnSecurity summed it up nicely recently:

Basically, you're just moving the risk elsewhere, and you're trusting whoever your VPN provider is -- and they may very well be worse than whatever it is you're trying to avoid. The specific use case that's almost never recommended is using a VPN on your home network (with a few specific exceptions). You may not trust Comcast/AT&T/whatever, but they may actually be a lot more serious about protecting you than a fly-by-night VPN provider.

But with so many VPN providers out there, it's not always clear how legit they are, and there certainly have been rumors and complaints about some of them. Now, the Center for Democracy and Technology (CDT) has filed an FTC complaint against one of the more well known VPN providers, Hotspot Shield VPN. You can read the short complaint yourself, but the short version is CDT says that Hotspot Shield VPN makes claims about privacy that are... not accurate, and argues that these are deceptive trade practices.

Hotspot Shield makes strong claims about the privacy and security of its data collection and sharing practices. CEO David Gorodyansky has stated that “we never log or store user data.” The company’s website promises “Anonymous Browsing” and notes that Hotspot Shield keeps “no logs of your online activity or personal information.” Hotspot Shield further differentiates itself from “...disreputable providers [that] are able to offer free VPN services [ ] because they make their money tracking and selling their users’ activities” by claiming that “Hotspot Shield neither tracks nor sells customers’ information.”

Take a wild guess what's coming next...

While connection logs can be designed to be minimally privacy-invasive, Hotspot Shield engages in logging practices around user connection data, beyond troubleshooting technical issues. The service uses this information to “identify [a user’s] general location, improve the Service, or optimize advertisements displayed through the Service.” IP addresses, unique device identifiers, and other “application information” are regularly collected by Hotspot Shield.

And then this:

While insisting that it does not make money from selling customer data, Hotspot Shield promises to connect advertisers to unique users that are frequent visitors of travel, retail, business, and finance websites. Moreover, these entities have access to IP addresses and device identifiers collected via Hotspot Shield. Even if Hotspot Shield only provides “hashed” or “proxy” IP addresses to these partners, third parties can also link information about web-viewing habits while using the Hotspot Shield by cross-referencing cookies, identifiers, or other information.

And more:

Contrary to Hotspot Shield’s claims, the VPN has been found to be actively injecting JavaScript codes using iframes for advertising and tracking purposes. An iframe, or “inline frame,” is an HTML tag that can be used to embed content from another site or service onto a webpage; iframes are frequently used to insert advertising, but can also be used to inject other malicious or unwanted code onto a webpage.

Further analysis of Hotspot Shield’s reverse-engineered source code revealed that the VPN uses more than five different third-party tracking libraries, contradicting statements that Hotspot Shield ensures anonymous and private web browsing.

But, wait, there's more...

Additional research has revealed that Hotspot Shield further redirects e-commerce traffic to partnering domains. For example, when a user connects through the VPN to access specific commercial web domains, including major online retailers like and , the application can intercept and redirect HTTP requests to partner websites that include online advertising companies.

And just one more thing...

Consumers have reported instances of credit card fraud after purchasing the “Elite” paid-version of Hotspot Shield VPN. One consumer reported “thousands of dollars” in credit card charges, as well as other suspicious online activity.

There's even more in the complaint, but those are some highlights. CDT claims that these are deceptive trade practices. Of course, the FTC doesn't need to do anything here. Such a complaint is basically asking the FTC to investigate and do something, and the FTC doesn't always do so. But at the very least, it may wake some people up about being careful which VPNs they use.

Filed Under: ftc, privacy, truth in advertising, vpn
Companies: cdt, hotspot shield vpn

DHS Confirms There Will Be More And Greater Intrusiveness During Border Searches

from the welcome-to-America,-land-of-the-heavily-surveilled dept

DHS boss John Kelly continues to push for ultimate government intrusiveness, whether at the borders where the CBP will handle the getting all up in your everything, or at airports, where the TSA will examine the hell out of travelers' electronics while overlooking explosives, guns, and other more dangerous contraband.

The DHS is no longer perched atop a slippery slope. It's enthusiastically sliding down it with both hands in the air. The Center for Democracy and Technology asked the DHS the same questions a few legislators have: what are you doing to protect the rights of US citizens at the border? The answer, in the form of a noncommittal letter, is an official shrug of indifference.

Back in March, CDT, along with more than 50 other civil society groups and trade associations, wrote a letter to Department of Homeland Security Secretary John Kelly urging that he back away from DHS proposals to use border searches as a tool to collect passwords and other social media information. Today we received a response. Unfortunately, the reply largely ducks our concerns, ignoring the main issues at play and doing little to shed light on the government’s plans or put to rest controversy about its contentious proposal. This non-answer is deeply troubling because it seems to indicate that Customs and Border Protection (CBP, which is a sub agency of DHS) is doing nothing to change course from a recent, dangerous trend: the use of the U.S. border as a tool to conduct broad surveillance.

The letter [PDF] from the DHS explains almost nothing, while assuring CDT all of this is completely above board. But, as Chris Calabrese of CDT points out, we've come a long way from physical strip searches. Searches of travelers' electronic devices are far more intrusive. And yet, the DHS still seems to feel device searches are no different than taking a look in a vehicle's trunk or opening up a suitcase. Check out the spin job being done here: intrusive device searches are just a team effort on behalf of America and Americans should just be more willing to pitch in.

All items entering the country are subject to inspection, and CBP may seek the traveler's assistance in presenting his or her effects including electronic devices in a condition that allows inspection of the item and its contents. This inspection may include searching computers, disks, drives, tapes, mobile phones, and other communication devices, cameras, music and other media players, and any other electronic or digital devices. In instances where an electronic device, or portions of the content on the device, are locked or password-protected or otherwise not readily available for inspection, CBP may take Iawful measures, as appropriate, to inspect the device and its contents consistent with longstanding authority to perform border searches. These practices are consistent with various laws authorizing searches and detention…

The DHS has reduced "exposing your entire digital life" to "presenting effects." This isn't an answer to CDT's queries. It's just propaganda.

The DHS also unhelpfully points to a 2009 Privacy Impact Assessment, which covers the search of electronic devices at the border. Again, this does little more than inform readers many of their rights are gone and won't be coming back. After spending several pages saying DHS/CBP will do all it can to minimize intrusion, protect harvested data/communications, and require badges and such to prevent unlawful access to seized digital goods, the report closes with the sheet handed to travelers when their devices have been taken by CBP officers. It states, in plain English, that CBP officers can perform suspicionless searches of electronics and hope it morphs into a justified search by the time the CBP is done searching them.

CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if there is no probable cause to seize information after review, CBP will not retain any copies.

As Calabrese points out, none of this seems likely to make the nation safer, much less minimize Constitutional violations.

As we told DHS back in March, the practical result is that border crossing will require full digital disclosure – exposing not just our personal information but also the tools we use to bank, communicate, and participate in our digital lives. This will not just infringe on free expression and privacy, but will also expose our personal information to the federal government who has a terrible track record of keeping such information safe. Ironically, it’s unlikely to have any security value, since bad actors conceal their accounts and the government drowns in information from innocent people.

The DHS has no answers. Things will get worse and are unlikely to get better. It's easy for government power to expand but almost impossible for it to retract. Since terrorism will always exist in one form or another, the government will always be able to justify mission creep and the further diminishment of civil liberties.

Filed Under: border searches, dhs, electronics, homeland security, john kelly
Companies: cdt

As Feared: House Guts USA Freedom Act, Every Civil Liberties Organization Pulls Their Support

from the tragic dept

As we feared would happen, the House, under pressure from the White House, has completely watered down the USA FREEDOM Act. After a long (and, we've heard, contentious) battle among the different players, the bill that's moving to the floor tomorrow is even less useful than the already weakened version that passed out of both the House Judiciary and Intelligence Committees. Following the revelation of the new version of the bill late Tuesday, basically every civil liberties organization pulled their support for the bill.

• EFF: Since the introduction of the USA FREEDOM Act, a bill that has over 140 cosponsors, Congress has been clear about its intent: ending the mass collection of Americans' calling records. Many members of Congress, the President's own review group on NSA activities, and the Privacy and Civil Liberties Oversight Board all agree that the use of Section 215 to collect Americans' calling records must stop. Earlier today, House Leadership reached an agreement to amend the bipartisan USA FREEDOM Act in ways that severely weaken the bill, potentially allowing bulk surveillance of records to continue. The Electronic Frontier Foundation cannot support a bill that doesn't achieve the goal of ending mass spying. We urge Congress to support uncompromising NSA reform and we look forward to working on the Senate's bipartisan version of the USA FREEDOM Act.
  
  
• CDT: Today, the Leadership of the House of Representatives gave the green light to an amendment to the USA FREEDOM Act that would significantly weaken the bill's ban on the government's bulk collection of data, despite the broader consensus that bulk collection must end. The Center for Democracy & Technology (CDT) and other civil liberties groups long supported the USA FREEDOM Act, but have withdrawn their support for the House version of the bill.
  
  "This legislation was designed to prohibit bulk collection, but has been made so weak that it fails to adequately protect against mass, untargeted collection of Americans' private information. The bill now offers only mild reform and goes against the overwhelming support for definitively ending bulk collection," said CDT President and CEO Nuala O'Connor.
  
  
• Open Technology Institute: "House leaders should have allowed a vote on the compromise version of the USA FREEDOM Act that was already agreed to, rather than undermining their own members and caving in to the intelligence community's demands. We recognize the need for the USA FREEDOM Act to move forward now, in order to avoid a worse bill or no bill at all. However, we cannot in good conscience support this weakened version of the bill, where key reforms -- especially those intended to end bulk collection and increase transparency -- have been substantially watered down. We're gravely disappointed that rather than respecting the wishes of the unanimous Judiciary and Intelligence Committees, the House leadership and the Obama Administration have chosen to disrupt the hard-fought compromise that so many of us were willing to support just two weeks ago.
  
  "The original USA FREEDOM Act was a great leap forward on surveillance reform, and the compromise version of two weeks ago was still a big step forward, but today's version is merely leaning in the right direction. Much of what has been weakened in the House version of USA FREEDOM will have to be restored in the Senate before the privacy and civil liberties community will be willing to support this bill again."
  
  
• Access: Today, the U.S. House of Representatives' Rules Committee reported a dramatically different version of the USA FREEDOM Act meant to reform NSA surveillance activities than what was unanimously approved by both the House Judiciary and Intelligence Committees two weeks ago.
  
  Yesterday, Access expressed its concern after learning that House leaders and Obama administration met over the weekend to negotiate the bill and commented, "The version we fear could now be negotiated in secret and introduced on the House floor may not move us forward on NSA reform."
  
  "It's greatly disappointing to witness House leaders succumb to the pressure applied by the Obama administration and others, turning its back on the compromise version of USA Freedom that so many supported just two weeks ago. The USA FREEDOM Act had previously passed through two committees before being secretly watered down behind closed doors. Access is forced to withdraw our support of the USA FREEDOM Act," said Amie Stepanovich, Senior Policy Counsel at Access.

This is unfortunate on many, many levels. I know many who are more cynical will suggest that this was the inevitable end to the process, but that's not true. A much stronger bill had the opportunity to move forward, but the White House -- despite President Obama's own promises -- put pressure on the House to change the bill and significantly weaken it. Basically, the White House has now made it clear that for all its talk about respecting the constitution and civil liberties, when it comes time to actually show real leadership, it won't do it, and instead will back efforts that make a mockery of basic civil liberties.

Filed Under: congress, nsa, privacy, surveillance, usa freedom act
Companies: access, cdt, eff, oti

New York's Attorney General Shouldn't Be Able To Go On A Fishing Expedition Through AirBnB Hosts

from the that's-not-how-the-law-works dept

In an odd bit of timing, I happen to be writing this post in a nice studio apartment in Midtown Manhattan, which I was able to rent via AirBnB, which has turned out to be a great find. I'm in NYC for a conference and some meetings, and while the conference offered a "special rate" on a hotel, this better located, much nicer, full studio apartment was more than $100 cheaper per night. The owner is a really nice guy who's able to make some money renting out this apartment -- and he's legitimately worried that NY is going to shut this down. And yet, as we noted last month, NY's grandstanding attorney general (is there any other kind?), Eric Schneiderman, has demanded that AirBnB turn over information on every host in NY in an insane fishing trip. His office claims it's just looking for "bad" AirBnB users -- mainly those doing "long-term illegal rentals," but that shouldn't allow for a massive fishing trip into the activities of the 15,000 hosts in the state of NY.

The EFF and CDT have now filed an excellent brief arguing that Schneiderman has no right to this vast treasure trove of information.

"Indiscriminate subpoenas that seek the identity and other personal information of thousands of Internet users without specific justification are improper and should be quashed," EFF Senior Staff Attorney Matt Zimmerman said. "It is not enough for the state to speculate that some Airbnb users might have broken some law at some unknown point. An online service's users deserve to be protected from fishing expeditions like this one."

In the brief, the groups argue that this is a threat to plenty of people's privacy.

While Airbnb has opposed the subpoena, innocent third parties should not have to rely on a company to protect their private interests.... The Attorney General has not curtailed its request to what it is legitimately entitled to receive, and this type of unfettered dragnet collection of user records should be denied.

Hopefully, the court will quash this overbroad subpoena, and NY will make it clear that merely renting out your place doesn't subject you to random fishing expeditions for information from the state's attorney general.

Filed Under: eric schneiderman, fishing expedition, ny
Companies: airbnb, cdt, eff

The USPTO's Reality Distortion Field: Web Filter Blocks Critics Like EFF, Welcomes Maximalist Lobbyists

from the but-techdirt's-available dept

Updated: At 5pm ET, the USPTO called Jamie to say that a contractor had set this up, and after reviewing their policies, they had stopped blocking such sites...

Well this is bizarre. Jamie Love from KEI was over at the US Patent and Trademark Office (USPTO) for a meeting about "global negotiations on intellectual property and access to medicine." The meeting itself was held in a room that it uses for the USPTO's Global Intellectual Property Academy (GIPA), and there is free WiFi for people to use. Love tried to log onto his own website... and found that it was being blocked as a "political/activist group."

Access Denied (content_filter_denied)

Your request was denied because this URL contains content that is categorized as: "Political/Activist Groups" which is blocked by USPTO policy. If you believe the categorization is inaccurate, please contact the USPTO Service Desk and request a manual review of the URL.

For assistance, contact USPTO OCIO IT Service Desk. (io-proxy4)

Love then checked a bunch of other sites... and noticed a rather distressing pattern. For public interest groups who advocate that the existing copyright/patent system is broken, the websites were all blocked. ACLU, EFF, Public Knowledge, Public Citizen, CDT... all blocked. However, if you're a lobbyist for maximalism? No problem! MPAA, RIAA, IIPA, IPI, PHRMA, BSA... come on through. They do allow Creative Commons. Thankfully (for us, at least), they don't seem to block blogs that talk about this stuff. Techdirt is allowed, as are things like BoingBoing, Groklaw and Larry Lessig and Michael Geist's blogs. Though, oddly, a bunch of political sites (DailyKos, TPM, RedState, Rush Limgaugh's site) are blocked.

It may be an "over active" filter -- but it does seem particularly disturbing that all those groups who fight for the public's rights on the very issues the USPTO is dealing with on a regular basis have their sites completely blocked.

Filed Under: advocacy, uspto, web filter
Companies: aclu, bsa, cdt, eff, iipa, ipi, kei, mpaa, phrma, public citizen, public knowledge, riaa

New Filing Explains How Domain Seizures Violate The First Amendment

from the hello-prior-restraint dept

We've already covered how Puerto 80, the company that runs Rojadirecta, has challenged the government's seizure of its domain. The arguments presented by the company focused on a few different aspects of the law, and, obviously, focused mainly on what's most likely to get the domain returned. That meant that, while it mentioned both, it didn't spend too much time on two larger issues associated with the Rojadirecta seizures: (1) that it appears to violate the First Amendment's ban on "prior restraint" of speech and (2) that Rojadirecta was declared legal (twice) in Spain, and ignoring that sets a dangerous precedent.

Thankfully, the EFF, CDT and Public Knowledge have filed amici briefs that dig into both of these issues in great detail. I've embedded the filing below, and it's worth reading, as it does a very detailed and well annotated and cited explanation for why such seizures, prior to any adversarial hearing, violate the First Amendment. The whole thing is worth reading, but here's a snippet:

The impact on speech resulting from domain-name seizure is far beyond what is necessary to further the government interest. The government alleges that links (located on pages accessible through Petitioner�s domain names) to infringing content -- i.e., pointers to content accessible elsewhere on the Internet -- constituted criminal copyright infringement.... By seizing Petitioner�s domain names, however, the government blocked access to all content contained on Petitioner�s site, including obviously non-infringing content, such as user-created forums, discussions, and technical tutorials....

This tactic, as discussed above in Section III, was dramatic and unprecedented. While the government may pursue actions that further important interests, �it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.� Vill. of Schaumburg v. Citizens for a Better Env�t, 444 U.S. 620, 637 (1980) (citing Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620 (1976)). �Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone . . . .� NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted).

Separately, it digs into the larger issues related to the fact that the site was found to be legal in Spain, something that the challenge from Puerto 80 mentions, but does not spend much time on. Here, however, the amici filing points out that this presents a big legal problem for the US government in supporting these seizures. Again, the entire argument is worth reading, but a quick snippet:

Decisions of foreign courts are not binding on the U.S. judiciary; however, it is a �well-settled rule� that unless the findings offend fundamental standards of procedural fairness or public policy, foreign judgments are generally conclusive. See Telenor Mobile Commc�ns AS v. Storm LLC, 584 F.3d 396, 408 (2d Cir. 2009) (citing Ackermann v. Levine, 788 F.2d 830, 837 (2d Cir. 1986)); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 457 (2d Cir. 1985) (�comity will be granted to the decision or judgment of a foreign court if it is shown that the foreign court is a court of competent jurisdiction, and that the laws and public policy of the forum state and the rights of its residents will not be violated.� (emphasis added)). Cf. Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 631 (2d Cir. 1976) (holding that �a foreign judgment may not be collaterally attacked �upon the mere assertion of the party that the judgment was erroneous in law or in fact�� and requiring �[c]lear and convincing evidence� to attack a foreign judgment) (internal citations omitted))....

[....]

In the case of Rojadirecta, that standard was not applied, much less met. There is no reason to believe the Spanish rulings were procedurally unsound or offensive to public policy. Indeed, on the limited facts available in the record, U.S. copyright law may have dictated the same outcome, at least in the context of criminal infringement.

Separately, it notes that the consequence of ignoring such foreign judgments may do serious harm to US interests abroad, as it will enable other countries to do the same thing to US citizens and companies.

The effect may be felt well beyond the commercial context. Simply put, if the United States courts allow � with no adversarial hearing and on a low legal standard � the seizure of foreign-based content that is lawful in the home country, then that will set an example for other countries to seek to seize U.S.-based speech that is perfectly lawful in this country. As one example, U.S.-based websites have provided a crucial safe haven for political speech, including speech that is critical of foreign governments, in part because U.S. law offers strong protections for political commentary. If such a website were seized by a foreign government (even though the content is hosted in the U.S.), that action would likely be subject to intense criticism, including disapproval by the U.S. government. Unfortunately, it would be all too easy for the foreign censor to cite to the circumstances of this case as reason to ignore such criticism. Once the United States goes down the path of seizing websites hosted around the world, we will be less able to complain when other countries turn around and do the same thing to speech hosted here.

The filing also notes the oddity of the US government not mentioning the Spanish rulings in its affidavit to seize the sites, which suggests one of two things: that the ICE/DOJ folks hid this rather important fact or that that they didn't bother doing even the most basic investigation to find that information out.

Filed Under: domain seizures, first amendment, free speech, prior restraint, rojadirecta
Companies: cdt, eff, public knowledge, puerto 80

Public Citizen, EFF, CDT And CMLP Team Up To Question Recent Ruling On Section 230 Safe Harbor

from the this-is-important dept

A few weeks back, we wrote about a court ruling that said that Yahoo was protected against actions by users, thanks to Section 230 safeharbors, but that the company had effectively given up some of that protection by promising to remove some content. While the bigger issues in the case seemed to have been decided reasonably, some noticed that many of the finer points in the ruling were both sloppy and troubling. Eric Goldman ran down the details of the problems with the ruling. Now it appears that Yahoo is appealing not the major point of the case, but those specific troubling points made in the ruling, which could severely limit the effectiveness of using Section 230 to protect against frivolous lawsuits.

The issue may certainly sound like inside baseball, but it's important to anyone who runs an online service of any kind. Traditionally, when receiving a mistargeted lawsuit that tries to pin liability on a service provider, rather than the actual user, it's common to file a motion to dismiss based on section 230 safe harbors. However, in this ruling, the court said that you couldn't raise section 230 in a motion to dismiss, and that it could only be used as an "answer" and thus required a more involved (and potentially much more costly) procedure of asking the court for a ruling in the case, rather than just a dismissal. That would significantly raise the cost to many site owners in trying to dismiss these sorts of mistargeted lawsuits. It's nice to see a long list of defenders of the public and the internet sign on to explain to the court why this dicta is incorrect. Public Citizen, EFF, CDT and the Citizen Media Law Project all joined in with an amicus brief. Hopefully the court realizes the earlier sloppy ruling was a mistake, and the ability to dismiss using Section 230 safe harbors remains.

Filed Under: affirmative defense, barnes, safe harbors, section 230
Companies: cdt, cmlp, eff, public citizen, yahoo

EFF, ACLU Ask Court To Strike Down Kentucky's Domain Name Seizure

from the good-for-them dept

You may recall that a judge recently allowed Kentucky's governor to seize a bunch of domain names that were related to gambling -- even if neither the owners nor the servers were based in Kentucky -- setting a terrible precedent. That's why it's good to see the EFF, the ACLU and the Center for Democracy and Technology (CDT) team up yet again to ask an appeals court to overturn this decision. Hopefully the appeals court recognizes how truly awful the original decision was, and notes how it seems to violate multiple clauses of the Constitution.

Filed Under: domain names, gambling, governor, kentucky, online gambling
Companies: aclu, cdt, eff