Obsidian Finance Group who won a round in court against a blogger for defamation says the blogger does not deserve a new trial. A court awarded Obsidian$2.5 million in damages for one post.

The blogger is seeking to appeal the award with the Electric Frontier Foundation filing an amicus brief arguing the judgment was a threat to free speech. -db

From the Courthouse News Service, February 6, 2012, by Nick McCann.

Full story

The Electronic Frontier Foundation is petitioning a federal judge to protect the anonymity of individuals involved in a copyright lawsuit over porn downloading.

An adult film company wants to determine the identities of 1495 Internet users. The judge ordered the individuals suing to protect their anonymity to reveal their identities before the suit could proceed. -db

From a commentary for the Electronic Frontier Foundation, January 30, 2012.

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The American Civil Liberties Union and the Electronic Frontier Foundation are set to file an appeal concerning the U.S. government’s attempts to obtain Twitter records in their investigation of WikiLeaks.

The ACLU and EFF are seeking to prevent the government from sealing records of their efforts to obtain private information of Internet users without a warrant. -db

From a press release by the Electronic Frontier Foundation, January 20, 2012.

Full release

Google has filed an amicus brief in the appeal of a Righthaven case to the 9th U.S. Circuit Court of Appeals arguing for flexibility in applying the fair use doctrine.

The case under appeal pitted Righthaven against the Center for Intercultural Organizing over the Center’s posting of a Las Vegas Review-Journal article. -db

From the Courthouse News Service, January 16, 2012, by Maria Dinzeo.

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It now appears now that Congressional bills to protect copyright on the Internet will be embroiled in a long, intense struggle even as President Barack Obama declared his opposition to key elements of the bills.

The technology industry opposes the bills out of concern that they will stifle free speech and innovation. -db

From The New York Times, January 15, 2012, by Jenna Wortham and Somini Sengupta with contribution from Nick Bilton.

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The Electric Freedom Foundation is suing the Department of Transportation for its records on drones operating in U.S. airspace. EFF claims the drones are used for surveillance of U.S.  citizens and are a matter of great public concern. -db

From The Washington Post, January 13, 2012, by Jason Ukman.

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Faulty computer security and their own inexperience with encryption pose problems for journalists in keeping their notes and sources from authorities.

With the right surveillance technology, it is easy these days to gain access to reporters’ telephone, Skype, e-mails and instant messaging. -db

From a commentary in the Columbia Journalism Review, January 9, 2012, by Alysia Santo.

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There were four cases over the Freedom of Information Act that promoted transparency in 2011 according to the Electronic Freedom Foundation.

The cases were Milner v. Department of Navy, FCC v. AT&T, Islamic Shura Council of S. Cal. v. FBI and National Day Laborer Organizing Network v. ICE.

From a commentary for the Electronic Frontier Foundation, December 31, 2011, by Jennifer Lynch and Mark Rumold.

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The U.S. Circuit Court of Appeals in Washington, D.C. ruled that the CIA had the right to refuse to confirm or deny existence of records named in a Freedom of Information Act request. The refusal is called a Glomar response.

The CIA had refused to provide information to a US. citizen seeking information on his grandfather, an Iceland citizen who allegedly was associated with the Icelandic Communist Party. -db

From The Reporters Committee for Freedom of the Press, December 22, 2011, by You-Jin Han.

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A federal judge rejected a claim against a man who relentlessly pursued a religious leader on Twitter in a groundbreaking case on free speech and cyberstalking.

The judge said while the speech inflicted “substantial emotional distress,” “nucomfortable speech” was protected under the First Amendment. -db

From The New York Times, December 15, 2011, by Somini Sengupta.

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Leading Constitutional scholars say the online piracy legislation currently before Congress throttles constitutional rights, writes Corynne McSherry for the Electronic Freedom Foundation.

She says the revised legislation only gives lip service to the First Amendment and denies due process and free speech in ways described by the scholars. -db

From a commentary for the Electronic Freedom Foundation, December 14, 2011, by Corynne McSherry.

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Righthaven’s methods in pursuing copyright violations turned out to be bogus and unfair resulting in its bankruptcy, but, says Jeffrey D. Neuburger in MediaShift, it would be too bad if the company did not survive long enough to pursue appeals lest newspapers lose ground in receiving just compensation for their work. -db

From a commentary for MediaShift, December 1, 2011, by Jeffrey D. Neuburger.

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The webcast of the House Judiciary Committee’s hearing on the Stop Online Piracy Act or SOPA was of such poor quality that the Internet community was effectively shut out until the question and answer period.

The community is also concerned that the committee is only asking one representative of the technology sector to testify. -db

From a commentary for the Electronic Freedom Foundation, November 16, 2011, by Rainey Reitman.

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The Justice Department has refused a request by the Electronic Frontier Foundation for an important legal opinon on the use of “exigent letters,” a method of requesting information that includes telephone company records.

In refusing to disclose the legal opinion, the DOJ cited national security concerns. -db

From Politico, November 11, 2011, by Josh Gerstein.

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The Stop Online Piracy Act (SOPA) under consideration in Congress could result in extensive Internet censorship and threaten the work of human rights advocates and whistleblowers, argues Trevor Timm, an Electronic Frontier Foundation lawyer.

“[SOPA]threatens to transform copyright law, pushing Internet intermediaries—from Facebook to your ISP—to censor whole swaths of the Internet. SOPA could forever alter social networks, stifle innovation and creativity, and destroy jobs…” and even bring about the end of the Internet as we know it, says Timm. -db

From a commentary for the Electronic Frontier Foundation, November 2, 2011 , by Trevor Timm.

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The Electronic Freedom Foundation sued the Department of Justice for its failure to release documents detailing its interpretation and use of Section 215 of the U.S.A. Patriot Act. The section allows the FBI to obtain a court order for “any tangible thing” related to a terrorism investigation.

The EFF claims the government has been misusing the Patriot Act to investigate citizens without their knowledge. -db

From the Courthouse News Service, October 27, 2011, by Maria Dinzeo.

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A bipartisan anti-piracy bill introduced in the House of Representatives has the backing of the entertainment industry who want to expel copyright-infringing web sites from the Internet.

Internet companies and digital rights groups say the bill is heavy handed and poses a serious threat to free speech and innovation. -db

From CNet News, October 26, 2011, by Declan McCullagh.

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The Electronic Frontier Foundation is suing the government for records of who is on the Intelligence Oversight Board, the civilian board responsible for reviewing misconduct reports for federal intelligence agencies.

The suit  is part of EFF’s ongoing investigation of intelligence violations as Congress considers changes to current oversight laws. -db

From a press release from the Electronic Frontier Foundation, September 27, 2011.

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To promote Internet freedom and free speech around the world, the Electronic Freedom Foundation is urging the U.S. government to lift export restrictions on communication tools.

Recently the Obama administration has suspended transactions with the Syrian government as part of U.S. sanctions of the oppressive regime but with the attendant effect of depriving Syrian citizens wishing to protest of access to Google products, Java and such hosting services as Rackspace and SuperGreenHosting. -db

From a commentary for the Electronic Frontier Foundation, September 26, 2011, by Jillian York, co-authored by Cindy Cohn.

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A coalition including the Electronic Frontier Foundation (EFF) filed a brief asking a federal appeals court to prevent the government from using the “state secrets” argument to dismiss a lawsuit challenging warrantless surveillance.

In a press release, EFF described the lawsuit brought by a Muslim group,  “The Al-Haramain Islamic Foundation alleges in its lawsuit that federal agents illegally wiretapped calls between the charity and its lawyers. The government has refused to confirm or deny any court order authorizing surveillance, arguing only that the state secrets privilege protects the government from any litigation.” -db

From a press release from the Electronic Frontier Foundation, September 22, 2011.

Full release

President Barack Obama has done nothing to fulfill his promise to curtail warrantless spying and in fact wants Congress to renew powers given to the federal government to conduct the surveillance.

Writing a commentary for Wired, Ryan Singel quotes Julian Sanchez of the Cato Institute on the effectiveness of the spying, “We have become so accustomed to talking about the balance between civil liberties and security that we begin to assume that the more our liberties are invaded, the more secure we are, when there is very little evidence that is the case.” -db

From a commentary in Wired, September 11, 2011, by Ryan Singel.

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The Electronic Freedom Foundation and the American Civil Liberties Union won a victory in court as the D.C. Circuit Court of Appeals ruled that the federal government must produce documents concerning criminal prosecutions in which the government obtained cell phone site locations without a warrant.

The court found that the release of the documents would serve the public interest,  “…disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool.” -db

From a commentary for the Electronic Freedom Foundation, September 10, 2011, by Mark Rumold.

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The controversial copyright  troll, Righthaven, has not filed a lawsuit in two months after punishing court rulings against the company. The firm began over a year ago supposedly to buy copyrights from news media and file suits to stop copyright infringements.

Although Righthaven is appealing the court decisions that held that it had no legal standing to file the suits, its operations are at a standstill as the appeal cases take months and years to come before a judge. -db

From Wired, September 7, 2011, by David Kravets.

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The United Nations will begin discussion this week about online freedom of expression after hearing a special report that advocates protecting privacy and anonymous speech online.

The UN report questions the use of surveillance under the guise of national security or counter-terrorism. The report’s author, Frank La Rue, said surveillance measures “often [take] place for political, rather than security reasons in an arbitrary and covert manner.” -db

From a commentary from the Electronic Freedom Foundation, May 31, 2011, by Katitza Rodriguez.

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Electronic Frontier Foundation Senior Staff Attorney Kurt Opsahl says that in obtaining  from a federal district court an agreement between Righthaven and Stephens Media, it discovered that although Righthaven claimed in its suits for copyright infringement that it held exclusive rights to reproduce and distribute Stephens Media news articles, that the agreement stated that Righthaven “shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.”

Opsahl thinks Righthaven lacks standing to sue since copyright law does not allow suits for infringement unless  rights to reproduce and distribute a work are actually being infringed.

Righthaven is attempting to create a business model of  suing bloggers for copyright infringement. It does not write the news articles but instead trolls the Internet, looking for news articles published by Stephens Media or Media News Group and then gets the publisher to “assign” the copyright so it can file a lawsuit. -db

From a commentary from the Electronic Frontier Foundation, April 18, 2011, by Kurt Opsahl.

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The Electronic Frontier Foundation in San Francisco  is urging attendance at a public hearing tonight. The San Francisco Entertainment Commission is proposing to require all venues with an occupancy of over 100 people to record the faces of all patrons and employees and scan their ID’s for storage in a database which they must hand over to law enforcement on request. If adopted, these rules would pose a grave threat to the rights of freedom of association, due process, and privacy in San Francisco.

The Entertainment Commission will consider adopting rules concerning security at places of entertainment and one time events at its regular meeting on April 12, 2011, at 6:30 PM in Room 400, City Hall, 1 Dr. Carlton B. Goodlett Place, San Francisco. Public Notice

EFF will also present comments in person at the hearing If you can’t attend the hearing, the EFF invites you to email your comments to Jocelyn.Kane@sfgov.org.

The House Oversight Committee is investigating Freedom of Information Act requests processed by the Department of Homeland Security (DHS). The Electronic Freedom Foundation (EFF)  complained last October that the department was targeting certain requesters which included journalists and activist groups for extra layers of review.

EFF also says that the DHS not only failed to produce records on a timely basis but also withheld documents. -db

From a commentary from the Electronic Frontier Foundation, March 30, 2011, by Jennifer Lynch.

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A Nevada federal district judge ruled that an Oregon non-profit organization had fair use right to an article from the Las Vegas Review-Journal that it posted on its website.

In making the ruling, the judge explained that the article was being used by Righthaven only for the sake of bringing lawsuits and was not serving the intention of the Copyright Act, “to encourage and protect creativity.” -db
From the Electronic Freedom Foundation, March 21, 2011, by Kurt Opsahl.

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A staff attorney for the Electronic Frontier Foundation says that WiliLeaks dramatic release of classified government documents aside, it still crucial to government accountability for people working within government to come forth with stories of excesses and for citizens to exercise their rights under freedom of information laws.

EFF’s Jennifer Lynch lists some recent cases favorable to open government and offers help and advice for those wanting information on government dealings. -db

From a commentary from the Electronic Frontier Foundation, March 13, 2011, by Jennifer Lynch.

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A federal judge ordered Twitter to release records of three of its users in a U.S. government investigation of WikiLeaks.

In an article in PC Magazine, Chloe Albanesius quotes Elecronic Frontier Foundation legal director Cindy Cohn on the implications of the order, “We’re disappointed that the court did not recognize that people using digital tools deserve basic privacy and that the government should be required to meet a high standard before it demands private information about you from the online services you use, be they Twitter, Facebook, Gmail or Skype.” -db

From PC Magazine, March 11, 2011, by Chloe Albanesius.

Full Story

Electronic Freedom Foundation’s Technology Director Chris Palmer says that a number of projects are underway to reduce centralization on the Internet and improve security and accessibility for the public. -db

Electronic Freedom Foundation
Commentary
December 14, 2010
By Chris Palmer

The past few weeks have highlighted the vulnerability of centralized information systems to censorship: online speech is only as strong as the weakest intermediary. Sites hosting legitimate speech were caught up in an anti-counterfeiting raid by the Department of Homeland Security, Every DNS stopped hosting WikiLeaks.org’s DNS, Amazon refused hosting service to WikiLeaks, and independent protesters conducted denial-of-service attacks on businesses refusing service to WikiLeaks.

If the Combating Online Infringements and Counterfeits Act (COICA; the internet censorship bill introduced in the US Senate) or something like it passes, the threat centralization poses to First Amendment-protected speech may be unavoidable. Corrective action — designing, implementing, and deploying robust, fault-tolerant architectures — will improve the security and availability of the internet infrastructure generally, to the benefit of all.

What, then, can digital activists do to protect speech on the internet? Fortunately, there are a bunch of technical projects dedicated to reducing centralization in the internet infrastructure. Some are in the idea stage, some are up and running, and some are in-between. All of them could use help: development, documentation, security review, server infrastructure, testing, and evangelizing. EFF urges technologists of all stripes and skill levels to work on potential solutions to the centralization problem.

In this post I’ll summarize a few interesting projects, but this list is hardly exhaustive.

The Dot-P2P Project, an alternative DNS hierarchy that resists censorship. The project aims to create a new top-level domain, .p2p, and name-resolution software that will hook into the normal client DNS resolver. (However, the new software will not interfere with name resolution for traditional TLDs like .com and .net.) Dot-p2p developers expect the .p2p service infrastructure to be mobile and hence flexible under attack; by contrast, administration is currently expected to be centralized. However, the developers would like to see a design for decentralized administration as well.

The Tahoe Least-Authority File System, a highly fault-tolerant, secure internet filesystem. Historically, network filesystems such as SMB/CIFS and NFS have been both centralized (having a single server) and insecure (lacking any authentication, confidentiality, or integrity for the data). Previous work, such as The Coda Filesystem and Mazières’ SFS, has attempted to address these problems. Tahoe-LAFS is a new effort in this area with an innovative, fine-grained internet-strength security model. Tahoe-LAFS could be used as the basis for a censorship-resistant, confidential, tamper-resistant publishing platform. Transported over Tor, it could also be anonymous.

The Tor Project, an anonymizing overlay network. Although better-known than the other projects described in this post, Tor remains a fruitful project to work on and there is plenty of work left to do. In particular, the use of Tor hidden services lags behind the use of Tor on the client side for many reasons, including performance and the need for more server infrastructure. And to help defeat censorship systems, there is always a need for more people run Tor Bridge Relays.

BitCoin, a decentralized internet currency. Digital cash systems, usually based on cryptographic “proof of work” schemes, have been around since 1990. Some digital cash systems are anonymous or pseudonymous (using e.g. Chaum’s blind signatures), but not all are. Historically, digital cash systems have not succeeded; BitCoin is a new attempt that may be promising. You can download and run the code now, and you can indeed buy things with BitCoins.

It may be that some or all of these projects do not succeed, or succeed only partially. That is to be expected — decentralizing and hardening the internet infrastructure and applications against censorship is an ongoing research and development project. The only way to progress is gradually and with effort, but the payoff could be huge.

Copyright 2010 Electronic Freedom Foundation     FAC Content Use Policy

Hackers have disrupted the Web sites and services of a number of companies including MasterCard, Visa and PayPal for withdrawing services in support of WikiLeaks. -db

New York Times
December 8, 2010
By Ashlee Vance and Miguel Helft

A hacking free-for-all has exploded on the Web, and Facebook and Twitter are stuck in the middle.

On Wednesday, anonymous hackers took aim at companies perceived to have harmed WikiLeaks after its release of a flood of confidential diplomatic documents. MasterCard, Visa and PayPal, which had cut off people’s ability to donate money to WikiLeaks, were hit by attacks that tried to block access to the companies’ Web sites and services.

To organize their efforts, the hackers have turned to sites like Facebook and Twitter. That has drawn these Web giants into the fray and created a precarious situation for them.

Both Facebook and Twitter — but particularly Twitter — have received praise in recent years as outlets for free speech. Governments trying to control the flow of information have found it difficult to block people from voicing their concerns or setting up meetings through the sites.

At the same time, both Facebook and Twitter have corporate aspirations that hinge on their ability to serve as ad platforms for other companies. This leaves them with tough public relations and business decisions around how they should handle situations as politically charged as the WikiLeaks developments.

Some internet experts say the situation highlights the complexities of free speech issues on the Internet, as grassroots Web companies evolve and take central control over what their users can make public. Clay Shirky, who studies the Internet and teaches at New York University, said that although the Web is the new public sphere, it is actually “a corporate sphere that tolerates public speech.”

Marcia Hofmann, a lawyer at the Electronic Frontier Foundation, said, “Any Internet user who cares about free speech or has a controversial or unpopular message should be concerned about the fact that intermediaries might not let them express it.”

She added, “Your free speech rights are only as strong as the weakest intermediary.”

The problem came into relief on Wednesday, through an effort called Operation Payback, organized by a group calling itself Anonymous. The group spent much of the day posting notes on Facebook and Twitter that told followers which companies to single out and that documented hacking successes.

But Facebook banned one of the group’s pages, saying that using the site to organize hacking attacks like that violated its terms of use. The group went on Twitter to complain.

A Facebook spokesman issued a statement saying that the company was “sensitive to content that includes pornography, bullying, hate speech, and threats of violence” and would “take action on content that we find or that’s reported to us that promotes unlawful activity.”

In an interview Wednesday morning, Joe Sullivan, Facebook’s chief security officer, addressed WikiLeaks’s own presence on the site. He said the company had not received any official requests to disable pages or accounts associated with the WikiLeaks organization.

Facebook generally resists requests by governments or advocacy groups to take down material if that content is not illegal or does not violate Facebook’s terms of service, which prohibit attacks on individuals or incitements to violence.

“Facebook is a place where people come to talk about all sorts of things, including controversial topics,” Mr. Sullivan said. It was not clear whether anyone had asked Facebook to take down the Operation Payback page.

Twitter allowed the Operation Payback account to stay active most of Wednesday. But the group’s account was disabled late in the day, after it posted a link to a file that provided thousands of consumer credit card numbers, according to a person with direct knowledge of the situation.

A Twitter spokesman declined to discuss the details of the situation. “We don’t comment about the specific actions we take around user accounts,” he said.

The company is not overly concerned about hackers’ attacking Twitter’s site, he said, explaining that it faces security issues all the time and has technology to deal with the situation.

Twitter is in a particularly delicate situation because its founders have celebrated their service’s role in political protest and free speech. They have not been shy about trying to capitalize on the good will engendered by playing that role.

WikiLeaks’s own Twitter account remains active, and it is the group’s main channel for reaching supporters and the media.

Last week, Amazon.com fell into a similar position when it decided to stop storing files for WikiLeaks. Advocates of WikiLeaks complained that Amazon.com was bowing to political pressure to cut the organization from its Web services. An Amazon.com spokesman said the company was simply banning an organization that had violated its terms of service by trying to distribute documents it did not own.

The last week has given rise to a hacking war in which groups have blocked access to WikiLeaks’s Web sites by bombarding them with requests.

And now the WikiLeaks supporters have responded in kind, flying the freedom of speech banner as the motivation for their actions.

Claire Cain Miller contributed reporting.

Copyright 2010 The New York Times Company     FAC Content Use Policy

Several public interest groups are lining up for Google in its fight against a lawsuit by Rosetta Stone because they say the suit tries to silence competition and stifle criticism. -db

Online Media Daily
December 6, 2010
By Wendy Davis

First Amendment advocates and digital rights groups have weighed in on Google’s side in a lawsuit by Rosetta Stone challenging the search giant’s practice of allowing companies to use trademarks to trigger AdWords ads.

“Both Google and typical advertisers make fair use of Rosetta Stone’s marks. Therefore, Google is not liable for trademark infringement,” Public Knowledge and the Electronic Frontier Foundation argue in a friend-of-the-court brief filed Monday with the Fourth Circuit Court of Appeals.

Earlier this year, U.S. District court Judge Gerald Bruce Lee in Alexandria, Va. dismissed Rosetta Stone’s trademark infringement lawsuit against Google, ruling that the search company’s use of Rosetta Stone’s name didn’t confuse consumers.

Rosetta Stone recently asked the appellate court to reverse that ruling. The language learning company argues that it should be able to stop others from “free-riding” on its brand name, and that Google’s practices confuse consumers. Rosetta Stone drew support in its appeal from several outside businesses, including Ford Motor Co. and Viacom.

The public interest groups who back Google argue that Rosetta Stone “seeks to change the scope of trademark law, and to grant itself the right to cripple advertising platforms and silence competitors.”

Public Knowledge and the EFF argue that Rosetta Stone can’t itself decide which uses of its trademark are “authorized.” Rather, they argue, trademark law allows Google to use Rosetta Stone’s name in AdWords because that type of use doesn’t leave consumers confused.

Advocacy group Public Citizen filed a separate friend-of-the-court brief in support of Google.

“Trademark law protects consumers’ ability to distinguish the goods of companies whose quality they have learned to trust, but should not be used to prevent consumers from criticizing or learning about criticisms and competing products,” writes Public Citizen (which is representing MediaPost in an unrelated case).

“The fundamental flaw in Rosetta’s submission is its apparent assumption that any member of the public who uses a search engine to conduct a search using the term ‘Rosetta Stone’ must necessarily be searching for Rosetta’s official site, and only for that site, and hence is likely to experience confusion about whether all of the ensuing search results are linked to Rosetta’s own site,” Public Citizen adds. “The underlying assumption is wrong. To the contrary, it is common knowledge that an Internet user who employs a search engine and uses a search term that is in common use is likely to receive a listing of hundreds or even thousands of websites relating to their search terms.”

Copyright 2010 MediaPost Communications     FAC Content Use Policy

Righthaven, the company of lawyers that sues blogs and websites for posting articles from client newspapers, has announced it would no longer sue when the posting constitutes an excerpt. -db

Wired
November 18, 2010
By David Kravets

Copyright troll Righthaven this week promised to narrow its lawsuit campaign in the face of a courtroom defeat, when a judge ruled that a real estate website made “fair use” of a newspaper article from the Las Vegas-Review Journal.

Righthaven is the lawyer-heavy company based in Las Vegas that sprang to life last spring for the sole purpose of suing blogs and websites that repost, or even excerpt, Las Vegas-Review Journal articles without permission. It has filed about 150 lawsuits, and settled dozens of them in its favor.

But the company reached a snag when the Realty One Group fought back, winning a summary dismissal weeks ago. A Nevada judge agreed with the real estate firm’s argument that eight of 30 sentences from a Review Journal story about the real estate market qualified as fair use of the material.

With that precedent set, Righthaven no longer plans to sue websites for posting brief excerpts of newspaper articles, the company told a different federal judge in a separate case this week. “Righthaven does not anticipate filing any future lawsuits founded upon infringements of less than 75 percent of a copyrighted work, (.pdf) regardless of the outcome of the instant litigation,” Righthaven wrote the court.

There is no bright-line rule on how much one can excerpt from copyrighted content without breaching the Copyright Act, which carries fines of up to $150,000 per violation. But Righthaven told the Nevada court it “anticipates that the number of Righthaven copyright suits premised upon partial (rather than full, or nearly full) textual reproductions will continue to decline in the immediate future.”

The mea culpa, of sorts, came in a case that pits Righthaven against the political community site Democratic Underground. Righthaven filed the lawsuit after a user posted four paragraphs from a 34-paragraph Review-Journal story on Sharron Angle, the unsuccessful Republican Nevada candidate for Senate.

The Electronic Frontier Foundation jumped in to defend Democratic Underground and counter-sued Righthaven for abusing copyright law.

Righthaven on Monday asked U.S. District Judge Roger Hunt to dismiss its original claim against Democratic Underground, and the EFF’s counterclaim, essentially crying “no harm, no foul.” It asks that Democratic Underground and the EFF not be awarded legal fees and costs, because Righthaven claims it still could win if it really wanted to.

Neither the EFF nor Righthaven immediately responded for comment.

Righthaven’s lawsuits frequently take advantage of a loophole in the Digital Millennium Copyright Act. Many of its more than 150 lawsuits arise not from articles posted by a website’s proprietors but from comments and forum posts by the site’s readers. Under the DMCA, a website normally enjoys effective immunity from civil copyright liability for user content, provided it promptly removes infringing material at the request of a rightsholder.

But to dock that legal safe harbor, a site has to register an official contact point for DMCA takedown notices, a process that involves filling out a form and mailing a $105 check to the government. An examination of Righthaven’s lawsuits targeting user content suggests it’s specifically going after sites that failed to fill out that paperwork.

Copyright 2010 Condé Nast Digital     FAC Content Use Policy

The Electronic Frontier Foundation has obtained information that the U.S. Citizenship and Immigration Services is using sites such as Facebook to investigate citizenship petitions. -db

The Reporters Committee for Freedom of the Press
October 13, 2010
By Stephen Miller

The Electronic Frontier Foundation, a digital civil liberties group based in San Francisco, has received information through a federal Freedom of Information Act request documenting how U.S. Citizenship and Immigration Services uses social networking sites to investigate petitions for citizenship.

EFF obtained a June 20 Citizen and Immigration Services memo shedding insight into how social networking sites are used by agencies and what kind of individual information can be taken from them.

From October through November 2009, EFF sent a series of FOIA requests to more than six governmental agencies asking for information on how they monitor social networking sites including Facebook, MySpace, Twitter and Flickr.

The requests sprang from research on the topic that had been done in conjunction with the University of California, Berkeley’s Boalt Hall School of Law, said Jennifer Lynch, attorney with EFF.

“We had been working with criminal defense attorneys at the clinic . . . and they had been talking about how social networking sites were coming up in the cases that they were working on,” she said.

When the agencies failed to fulfill the group’s requests, EFF filed a lawsuit claiming a violation of FOIA and wrongful withholding of agency records.

As agencies released responsive documents throughout the course of the ongoing litigation, EFF become aware of what it calls a “potentially deceptive and unethical approach to collecting information.”

“What we were concerned about was how agencies were going about using the sites. Were they searching for just publicly available information? Were they somehow getting access to peoples’ private information?” Lynch said.

Sources within the U.S. Department of Homeland Security state that the department relies entirely on publicly available information and does not engage in any kind of “friending” on social media sites. However, the June 20 memo stated that “Narcissistic tendencies in many people fuels a need to have a large group of ‘friends’ link to their pages and many of these people accept cyber-friends that they don’t even know. This provides an excellent vantage point for FDNS [Fraud Detection and National Security agents] to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities.”

The Department of Homeland Security website provides information on its monitoring of social networking, which it purports to use only for the purposes of situational awareness. For example, a man trapped in a building during the earthquake in Haiti was saved because a post of his on Twitter that included his location was read by rescuers.

In terms of immigration, Department of Homeland Security sources said that the department may use publicly available information posted to a citizenship applicant’s Facebook page to determine if they are lying to the government about their marital status.

The lawsuit requesting further access to the documents requested by EFF is pending.

Copyright 2010 The Reporters Committee for Freedom of the Press     FAC Content Use Policy

Electronic Freedom Foundation’s senior staff attorney says that Craigslist has cooperated with law enforcement in identifying sex traffickers operating on its site and should not be bullied by threats from state attorneys general into compromising Internet freedom. -db

Electronic Freedom Foundation
Commentary
September 8, 2010
By Matt Zimmerman

On Saturday, after years of pressure from law enforcement officials, Internet classified ad web site Craigslist bowed to demands to remove its “Adult Services” section which critics charged encouraged prostitution and other sex-related crimes. Or at least it appears that it did. Without explanation, following the latest in a series of open letters from state attorneys general decrying the third party content permitted on the site, Craigslist replaced the “Adult Services” link that formerly appeared on the front page of the site with a white-on-black “censored” bar. Whether this move will substantially affect the rate of illegal prostitution across the country remains to be seen. Many, even some of Craigslist’s critics, appear to have their doubts. If nothing else, however, this latest turn in the AGs v. Craigslist saga underscores the misguided nature of the AGs’ tactics as well as the fundamental disagreement that we (and Congress) have with the AGs’ vision of how the Internet should operate.

Through this now years-long struggle, Craigslist’s legal position has been and remains absolutely, unequivocally correct: the Communications Decency Act of 1996 (or CDA) grants providers of “interactive computer services” an absolute shield against state criminal law liability stemming from material posted by third parties. Put simply, the law ensures that the virtual soapbox is not liable for what the speaker says: merely creating a forum in which users post ads that may violate state law plainly does not lead to liability for a web site operator.

The federal statutory immunity upon which Craigslist relies is not some clever loophole. Rather, the intermediary immunity provided by the CDA represents a conscious policy decision by Congress to protect individuals and companies who would otherwise be vulnerable targets to litigants who want to silence speech to which they object, illegal or not. We agree with Congress that a federal policy of holding lawbreakers liable for their own illegal behavior instead of holding intermediaries responsible for the illegal acts of others is the right one, both as a matter of fairness as well as an effective strategy by which speech and innovation can be encouraged and rewarded.

This clear protection plays an essential role in how the Internet functions today, protecting every interactive web site operator — from Facebook to Craigslist to the average solo blog operator — from potentially crippling legal bills and liability stemming from comments or other material posted to web sites by third parties. Moreover, if they were obligated to pre-screen their users’ content, wide swaths of First Amendment-protected speech would inevitably be sacrificed as web site operators, suddenly transformed into conservative content reviewers, permitted only the speech that they could be sure would not trigger lawsuits (or intimidating visits from the attorney general). The ability to encourage speech of all sorts without fear of legal reprisal is a feature of the CDA 230 world, not a shortcoming, one that encourages the publication of a diverse range of viewpoints and not just those of rich and cautious media companies who can afford the financial risk of publication.

As the chief law enforcement officers of their respective states, the attorneys general certainly know that their legal threats are completely meritless. Yet these and other law enforcement officers have shown little regard for what the law actually requires and have instead embarked on a vigorous campaign to strong-arm a company into submission based on bogus legal threats that nonetheless play well to many of their constituents. This strategy might amount to good politics, especially in an election year, but it continues to show remarkable disdain for the bedrock legal principles that have largely served the Internet well over the past 15 years.

It didn’t have to be this way. Over the past two years, Craigslist repeatedly offered to go far above and beyond their legal obligations to work with law enforcement officials, offering to manually screen ads, require working phone and credit card numbers from ad posters (thereby creating digital footprints by which lawbreakers could be tracked), and help identify missing persons. Not surprisingly, however, having offered to do more than the law required but less than the AGs demanded, the AGs kept coming back for more, some flatly stating that the essential protections offered by CDA 230 should be repealed.

At least two lessons can be drawn from this latest skirmish in the battle between Craigslist and its critics. First, there sadly appears to be little upside to working with many of these law enforcement officials to resolve such important Internet policy disagreements. At each step of this public debate, the AGs have inevitably rewarded completely voluntary, non-mandatory offers of cooperation from Craigslist with further demands and insults. What possible motivation will other companies have to work with law enforcement to address similar concerns in the future?

Second, and more importantly, supporters of the First Amendment should loudly voice their opposition to this type of misguided rhetoric from elected officials. While Craigslist may have “voluntarily” shuttered its Adult Services section, they did so under constant threat from government officials who continually promised meritless lawsuits and even criminal prosecution if their target did not comply. No one (including Craigslist) disputes that sex trafficking is a reprehensible practice that should be vigorously opposed. The dispute lies in whether law enforcement officials should be permitted to bully and dragoon private web site operators into becoming de facto censors. Many, including EFF, profoundly disagree with the prospect of such a reimagined Internet, and the AGs at minimum owe it to the public to be honest about the First Amendment impact of what they are proposing.

Copyright 2010 Electronic Freedom Foundation     FAC  Content Use Policy

Righthaven, a company that sues bloggers who repost news content without prermission, has expanded its operation to a second newspaper chain, the Arkansas-based WEHCO Media. -db

Wired
August 30, 2010
By David Kravets

A Las Vegas company established to sue bloggers who clip news content is expanding its operations to a second newspaper chain.

Righthaven LLC has struck a deal with Arkansas-based WEHCO Media to expand its copyright litigation campaign, in which bloggers and aggregators across the country are being sued on allegations of infringement.

Until now, Righthaven CEO Steve Gibson’s sole announced client had been Nevada-based Stephens Media. Righthaven has issued more than 100 lawsuits since its spring inception on behalf of the Las Vegas Review Journal — Stephens’ flagship.

“I can tell you we also have near finalization for contracts with a substantial number of other publishers,” Gibson said in a telephone interview. He declined to divulge their names until Righthaven begins filing suits on their behalf.

The Electronic Frontier Foundation has received “several dozen” inquiries from Righthaven defendants seeking legal representation, said Eva Galperin, the EFF’s referral coordinator.

“We’re up to our armpits in Righthaven defendants,” she said in a telephone interview.

The EFF, she said, has yet to take a case and has been helping the defendants obtain other counsel, she said.

For its part, WEHCO controls 28 papers, including the Arkansas Democrat-Gazette in Little Rock, and 13 cable stations largely in the south. Its president, Paul Smith, said in a Democrat-Gazette story last week that “it’s a pretty serious matter when someone takes your copy, information you’ve spent a lot of money to produce.”

Smith did not return a telephone message seeking comment.

In July, Gibson told Threat Level that more Righthaven clients would be forthcoming. He also gave a brief accounting of how Righthaven works. Borrowing a page from patent trolls, Righthaven acquires the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission.

Righthaven usually demands $75,000, but will settle for a few thousand dollars.

Copyright 2010 Condé Nast Digital         FAC Content Use Policy

A new “E-Personation” bill now in the California legislature would make it a crime to personate someone online to “harm” that person. EFF claims that the law would severely restrict online parodies criticizing government and big corporations. -db

Electronic Frontier Foundation
Commentary
August 22, 2010
By Corynne McSherry

A bill that could undermine a new and important form of online activism has quietly worked its way through the California legislature. If signed by the governor, the new law would make it a crime to impersonate someone online in order to “harm” that person. In other words, it could be illegal to create a Facebook or Twitter account with someone else’s name, and then use that account to embarrass that person (including a corporate person like British Petroleum or the U.S. Chamber of Commerce, or a public official).

Here’s the problem: temporarily “impersonating” corporations and public officials has become an important and powerful form of political activism, especially online. For example, the Yes Men, a group of artists and activists, pioneered “identity correction,” posing as business and government representatives and making statements on their behalf to raise popular awareness of the real effects of those entities’ activities, like the failure to DuPont to adequately compensate victims of the Bhopal disaster and the U.S. government’s destruction of public housing units in New Orleans.

These sorts of actions regularly receive widespread media coverage, sparking further public debate. Last year, the activists staged a thinly veiled hoax, presenting themselves at a press conference and on a website as the Chamber of Commerce and, in direct opposition to the Chamber’s actual position, promising to stop lobbying against strong climate change legislation. (Not amused, the Chamber promptly sued the Yes Men based on a trumped-up trademark complaint; EFF is defending the activists.)

Others have taken a similar approach, using spoof sites and identity correction to raise awareness about community issues, environmental threats, and, most recently, the historical roots of Haiti’s economic problems. Unfortunately, the targets of the criticism, like the Chamber, have responded with improper legal threats and lawsuits. It would be a shame if Senator Simitian’s bill added another tool to their anti-speech arsenal.

Proponents of the bill insist that there is no free speech problem because the new law would only apply to “credible” impersonations. That argument misses the point – identity correction depends on initial credibility, just as it also depends on prompt exposure.

What is worse, the bill is not needed. Sponsors of the bill say that victims of online harassment and defamation have little legal recourse. That’s simply not true. Laws against fraud and defamation are already on the books, and they apply online as well as offline. Moreover, judges and juries applying those laws have the benefit of an extensive body of jurisprudence aimed at limiting their impact on legitimate free speech.

We urge Governor Schwarzenegger not to sign this dangerous bill.

Copright 2010 Electronic Frontier Foundation  FAC Content Use Policy

Through its Freedom of Information Act lawsuit, the Electronic Frontier Foundation has revealed that the FBI and CIA are aggressively perfecting their ability to probe social networks and the Internet for intelligence data much of which is outside the law enforcement context. -db

Electronic Frontier Foundation
Commentary
August 16, 2010
By Tim Wayne

In the midst of recent controversies over Facebook’s privacy settings, it’s easy to forget how much personal information is available from other sources on the Internet. But the government remembers. EFF recently received a number of documents from the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) highlighting the government’s ability to scour not only social networks, but record each and every corner of the Internet. These documents were released in the second of a series of government disclosures resulting from EFF’s Freedom of Information Act (FOIA) lawsuit in which EFF, with the help of UC Berkeley’s Samuelson Clinic, sought information on the procedures and guidelines employed by government agencies when conducting social network monitoring or investigations.

As an example of the government’s substantial information collection capability, several documents [PDF] in the CIA’s disclosure discuss the CIA’s so-called Open Source Center, established in 2005, which has been collecting information from publicly accessible Internet sources such as blogs, chat rooms and social networking sites, in addition to monitoring radio and television programs. The Open Source Center’s website, opensource.gov, bills itself as the “US Government’s premier provider of foreign open source intelligence.” It is accessible to almost 15,000 local, state, and federal government employees and offers products ranging from reports and analysis on publicly available information dating back to the mid-90s, video reports and internet clips, translations, and media mapping and hot spot analysis.

In the other document [PDF] included in this release, FBI emails reveal the FBI’s interest in the University of Arizona’s Dark Web Project, an attempt by computer scientists to “systematically collect and analyze all terrorist-generated content on the Web.” Information in the document describes the Dark Web Project as especially effective in employing spiders to search Internet forums and find hidden web sites in the “corners of the Internet.” In addition to being able to search the Internet for content, the Dark Web Project is developing a tool called Writeprint that claims to help identify the creators of anonymous online content. The FBI emails reveal an interest in applying the Dark Web Project’s tools to the FBI’s own “operational analysis and exploitation of data, including web forums.”

As EFF and the Samuelson Clinic continue to seek information about law enforcement investigation techniques used on the Internet, we hope to learn more about how the government uses this information and especially how long it plans to keep it. In the meantime, however, it is clear that government investigators are collecting a wealth of information though the Internet in general and outside of the law enforcement context. It is also a good reminder that while social networks and other websites have privacy settings, the Internet does not. Stay tuned here for the next release.

Copyright 2010 Electronic Frontier Foundation

In the wake of a disturbing e-mail falsely attributed to a Silicon Valley leader, A California state senator is introducing a law to make malicious e-mail impersonations a misdemeanor. -db

San Francisco Chronicle
August 9, 2010
By Alejandro Martínez-Cabrera

Two months ago, a San Jose Mercury News reporter received a profanity-laced e-mail critical of one of her stories. More than a year before, a similar e-mail was sent to a long mailing list of hundreds of Silicon Valley industry, labor, political and community leaders.

The sender of the e-mails appeared to be Carl Guardino, the chief executive of the Silicon Valley Leadership Group, which represents the high-tech industry. The problem: He didn’t actually send it.

“This absolutely misrepresented me in a very harmful way,” he said. “It was completely out of character and it depicted me in a very bad light.”

Guardino was the victim of online impersonation, and he soon found out he wasn’t alone – friends, colleagues and relatives had stories of usurped identities and tarnished reputations. Unfortunately for them, the state law on impersonation was written in 1872 and is not equipped to deal with the digital age.

But a bill making its way through the Legislature is looking to change that. Inspired by Guardino’s story, state Sen. Joe Simitian, D-Palo Alto, introduced a bill in June that would make it a misdemeanor to maliciously impersonate someone.

If Simitian’s bill passes, online impersonations with the purpose “of harming, intimidating, threatening or defrauding” would be punishable with a maximum fine of $1,000 and one year in jail.

But while supporters believe the law urgently needs to be updated to punish and deter malicious impersonators, privacy advocates worry that such legislation might easily cross the line and threaten people’s First Amendment rights.

Political commentary

Simitian said his bill is not going after those who create fake Barack Obama Facebook profiles for political commentary, or the likes of Fake Steve Jobs, Newsweek writer Daniel Lyons who poses as Apple’s chief executive in his satirical blog.

Instead, the bill is meant to deal with miscreants whose impersonations range from the naughty to the outright sinister.

In recent years, impersonators have tweeted under the names of Maya Angelou, Kanye West and St. Louis Cardinals’ manager Tony La Russa, to name a few. Revenge-seekers and pranksters have embarrassed their victims in front of potential employers and created smears that are difficult to remove from the Web. Students have posed as teachers to harass other kids.

In one case in December, a Wyoming woman was raped in her home by a man responding to a Craigslist ad looking for “a real aggressive man with no concern for women” to fulfill a rape fantasy. However, she didn’t post the ad – it had been her disgruntled ex-boyfriend, a Marine stationed in California who was posing as her. Similar stories abound, online abuse experts said.

‘No recourse’

The Internet “makes it so easy for stalkers and harassers to ruin somebody’s life with a few keystrokes, and there’s little to no recourse for victims to try and undo the damage,” said Jayne Hitchcock, president of the volunteer organization Work to Halt Online Abuse, who was a victim of cyberstalking.

No one seems to know how widespread the problem is, but Hitchcock said she has noted more complaints about MySpace, Twitter, Facebook and e-mail impersonations.

“I probably see it more often than I’d like to through our organization,” she said.

But when it comes to addressing the problem, not everybody is convinced Simitian’s approach is the best. Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, said the scope of Simitian’s bill was defined too loosely and could have a negative effect on freedom of speech. For one, she said, the definition of harm needs to be narrowed.

“Harm is a pretty broad term. That could just mean that you undermined a politician’s reputation. I’m concerned that the nature of ‘harm’ is too vaguely defined,” she said.

McSherry also expressed concern that the bill would not protect some forms of parody and satire on the Internet that involve impersonation.

For instance, she pointed to the Yes Men, activists that the foundation is representing in a lawsuit filed against them by the U.S. Chamber of Commerce. In October, the group held a fake news conference posing as chamber representatives who promised the organization would no longer lobby against climate-change legislation.

“It was a very effective form of satire that was really useful in provoking some form of debate,” McSherry said. “I don’t think it’s Sen. Simitian’s intent to shut down this form of freedom of speech but I believe it’s what this bill can do.”

Simitian’s bill names “credible” impersonators that act without consent, but, McSherry said, “Just requiring that an impersonation is credible is not going far enough to protect the type of political speech I’m talking about.”

And even though she supports the spirit of Simitian’s bill, Hitchcock questions whether it’s enforceable, considering the need to educate law enforcers on online abuse issues and the jurisdictional problems relating to cybercrimes.

“Unless the victim and the harasser are both in California, it’s going to need a lot of collaboration between law enforcement agencies and the states. And if (the impersonator) is in another country, good luck. But it’s a start,” she said.

Hard to enforce

Danielle Keats Citron, a law professor at the University of Maryland who has written extensively about the role of the law and online abuse, believes the proposed law will have challenges based on the enforcement difficulties and the broadness of its interpretation.

But even if the bill in its current form becomes law, Citron said, the statute might have an overall positive effect. At its most basic level, the measure might help change attitudes about what’s permissible, she said.

“The legislation is trying to take the lead on this emerging technology that people are abusing, and teaching them how to treat each other,” she said. “It’s an important point we shouldn’t forget.”

She added: “But we also have to get the law right.”

Copyright 2010 Hearst Communications Inc.