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  • EFF Asks Court to Strike Down Unconstitutional Restraint on Our Speech

    EFF has asked a federal court to rule in its favor in a lawsuit we filed against an Australian company that sought to use foreign law to censor us from expressing our opinion about its patent. While the company, Global Equity Management (SA) Pty Ltd (GEMSA,) knows its way around U.S. courts—having filed dozens of lawsuits against big tech companies claiming patent infringement—it has failed to respond to ours. Today we asked for a default judgment, which if granted means we win the case.

    It all started when GEMSA’s patent litigation was featured in our June 2016 blog series “Stupid Patent of the Month.” The company wrote to EFF accusing us of “false and malicious slander.” It subsequently filed a lawsuit and obtained an injunction from a South Australia court ordering EFF to take down the blog post and blocking us from ever talking about any of its intellectual property.

    We have not removed the post. The South Australian injunction can’t be enforced in the U.S. under a 2010 federal law that took aim against “libel tourism,” a practice by which plaintiffs—often billionaires, celebrities, or oligarchs—sued U.S. writers and academics in countries like England where it was easier to win a defamation case.

    The Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act) says foreign orders aren’t enforceable in the United States unless they are consistent with the free speech protections provided by the U.S. and state constitutions, as well as state law. Our lawsuit, filed in U.S. District Court, Northern District of California, maintains that GEMSA’s injunction, which seeks to silence expression of an opinion, would never survive scrutiny under the First Amendment in the United States and should therefore be declared unenforceable. We stood ready to defend our right to express constitutionally protected speech.

    GEMSA, which has three pending patent lawsuits in in the Northern District of California, had until May 23 to respond to our case. That day came and went without a word. We can’t speculate as to why GEMSA hasn’t responded. To get a default judgment, we need to show that not only has GEMSA failed to answer our claims but also, regarding our claim that the South Australia injunction is unenforceable in the U.S., the law is on our side.

    We believe that we should prevail. The law does not allow companies or individuals to make an end run around the First Amendment by finding a judge in another country to sign an injunction that censors speech in the U.S. The law the Australian court applied to grant the injunction didn’t provide as much protection for EFF’s speech as American law, which means it’s unenforceable under the SPEECH Act. Additionally, the injunction is unconstitutional under American law as it prohibits all future speech by EFF about any of GEMSA’s patents. Such prohibitions are also known as prior restraints, and are allowed only in the rarest of circumstances, none of which apply here.

    Our laws also don’t allow plaintiffs to be left under a cloud of uncertainty as to their ability to speak publicly about something as important as patent litigation and reform. The Australian injunction states that failure to comply could result in the seizure of EFF’s assets and prison time for its officers. GEMSA attorneys have threatened to take the Australian injunction to American search engine companies to deindex the blog post, making the post harder to find online.

    The court should set the record straight and grant our request for a default judgment. Our laws call for no less.

    Source: EFF Asks Court to Strike Down Unconstitutional Restraint on Our Speech | Electronic Frontier Foundation


  • Border Security Overreach Continues: DHS Wants Social Media Login Information

    Now more than ever, it is apparent that U.S. Customs and Border Protection (CBP) and its parent agency, the Department of Homeland Security (DHS), are embarking on a broad campaign to invade the digital lives of innocent individuals.

    The new DHS secretary, John Kelly, told a congressional committee this week that the department may soon demand login information (usernames and passwords) for social media accounts from foreign visa applicants—at least those subject to the controversial executive order on terrorism and immigration—and those who don’t comply will be denied entry into the United States. This effort to access both public and private communications and associations is the latest move by a department that is overreaching its border security authority.

    In December 2016, DHS began asking another subset of foreign visitors, those from Visa Waiver Countries, for their social media handles. DHS defended itself by stating that not only would compliance be voluntary, the government only wanted to access publicly viewable social media posts: “If an applicant chooses to answer this question, DHS will have timely visibility of the publicly available information on those platforms, consistent with the privacy settings the applicant has set on the platforms.”

    As we wrote last fall in comments to DHS, even seeking the ability to view the public social media posts of international travelers implicates the universal human rights of free speech and privacy, and—importantly—the comparable constitutional rights of their American associates. Our objections are still salient given that DHS may soon mandate access to both public and private social media content and contacts of another group of foreigners visitors.

    Moreover, as a practical matter, such vetting is unlikely to weed out terrorists as they would surely scrub their social media accounts prior to seeking entry into the U.S.

    Such border security overreach doesn’t stop there.

    There have been several reports recently of CBP agents demanding access to social media information and digital devices of both American citizens and legal permanent residents. Most disturbing are the invasive searches of Americans’ cell phones, where CBP has been accessing social media apps that may reveal private posts and relationships, as well as emails, texts messages, browsing history, contact lists, photos—whatever is accessible via the phone.

    Such border searches of Americans’ digital devices and cloud content are unconstitutional absent individualized suspicion, specifically, a probable cause warrant. In light of the DHS secretary’s statements this week, we fear that DHS may soon take the next step down this invasive path and demand the login information for American travelers’ online accounts so that the government can peruse private, highly personal information without relying on access to a mobile device.

    Source: Border Security Overreach Continues: DHS Wants Social Media Login Information | Electronic Frontier Foundation


  • FBI Search Warrant That Fueled Massive Government Hacking Was Unconstitutional

    Appeals Court Should Find Warrant Violated Fourth Amendment Protections

    Boston—An FBI search warrant used to hack into thousands of computers around the world was unconstitutional, the Electronic Frontier Foundation (EFF) told a federal appeals court today in a case about a controversial criminal investigation that resulted in the largest known government hacking campaign in domestic law enforcement history.

    The Constitution requires law enforcement officers seeking a search warrant to show specific evidence of a possible crime, and tie that evidence to specific persons and places they want to search. These fundamental rules protect people from invasions of privacy and police fishing expeditions.

    But the government violated those rules while investigating “Playpen,” a child pornography website operating as a Tor hidden service. During the investigation, the FBI secretly seized servers running the website and, in a controversial decision, continued to operate it for two weeks rather than shut it down, allowing thousands of images to be downloaded. While running the site, the bureau began to hack its visitors, sending malware that it called a “Network Investigative Technique” (NIT) to visitors’ computers. The malware was then used to identify users of the site. Ultimately, the FBI hacked into 8,000 devices located in 120 countries around the world. All of this hacking was done on the basis of a single warrant. The FBI charged hundreds of suspects who visited the website, several of whom are challenging the validity of the warrant.

    In a filing today in one such case, U.S. v. Levin, EFF and the American Civil Liberties Union of Massachusetts urged the U.S. Court of Appeals for the First Circuit to rule that the warrant is invalid and the searches it authorized unconstitutional because the warrant lacked specifics about who was subject to search and what locations and specific devices should be searched. Because it was running the website, the government was already in possession of information about visitors and their computers. Rather than taking the necessary steps to obtain narrow search warrants using that specific information, the FBI instead sought a single, general warrant to authorize its massive hacking operation. The breadth of that warrant violated the Fourth Amendment.

    “No one questions the need for the FBI to investigate serious crimes like child pornography. But even serious crimes can’t justify throwing out our basic constitutional principles. Here, on the basis of a single warrant, the FBI searched 8,000 computers located all over the world. If the FBI tried to get a single warrant to search 8,000 houses, such a request would unquestionably be denied. We can’t let unfamiliar technology and unsavory crimes lead to an erosion of everyone’s Fourth Amendment rights,” said EFF Senior Staff Attorney Mark Rumold.

    EFF filed a brief in January in a similar case in the Eighth Circuit Court of Appeals, and will be filing briefs in Playpen cases in the Third and Tenth Circuits in March. Some trial courts have upheld the FBI’s actions in dangerous decisions that, if ultimately upheld, threaten to undermine individuals’ constitutional privacy protections over information on personal computers. 

    “These cases will be cited for the future expansion of law enforcement hacking in domestic criminal investigations, and the precedent is likely to impact the digital privacy rights of all Internet users for years to come,” said Andrew Crocker, EFF Staff Attorney. “Recent changes to federal rules for issuing warrants may allow the government to hack into thousands of devices at a time. These devices can belong not just to suspected criminals but also to victims of botnets and other hacking crimes. For that reason, courts need to send a very clear message that vague search warrants that lack the required specifics about who and what is to be searched won’t be upheld.”

    Source: FBI Search Warrant That Fueled Massive Government Hacking Was Unconstitutional, EFF Tells Court | Electronic Frontier Foundation