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  • NSA Internet Surveillance Under Section 702 Violates the First Amendment

    The First Amendment is too often overlooked in discussions of the National Security Agency’s vast surveillance authorities. But as Congress considers whether to reauthorize Section 702 of FISA this winter, we must remember that it’s not just our Fourth Amendment rights to privacy that are in the crosshairs, but also our First Amendment rights. These rights to anonymously speak, associate, access information, and engage in political activism are the bedrock of our democracy, and they’re endangered by the NSA’s pervasive surveillance.

    The NSA uses Section 702 to justify ongoing programs to siphon off copies of vast amounts of our communications directly from the Internet backbone as well as require system-wide searches across the information collected by major Internet companies like Google, Facebook, and Apple.

    So how does the First Amendment come to apply to mass surveillance? To understand this, we need to begin with a little history of the civil rights movement.

    As part of the backlash to the Supreme Court’s ruling striking down segregation in schools, the Attorney General of Alabama, John Patterson, brought a lawsuit against a leading civil rights organization, the National Association for the Advancement of Colored People (NAACP). The lawsuit alleged that the NAACP violated a state law requiring “foreign corporations” to file certain paperwork and get approval before practicing business in Alabama. The NAACP is a nonprofit membership organization; it didn’t file the paperwork because it believed it was exempt. While the NAACP fought the suit, the state issued a subpoena demanding detailed records from the NAACP, including membership lists and bank records. The NAACP refused to surrender its membership lists, fearing retaliatory consequences for its members. Because of this refusal, the court fined the NAACP $10,000, which after five days was raised to $100,000. The NAACP continued to fight the order for two years until the Supreme Court took up the issue, never surrendering its membership lists.

    Ultimately the NAACP was vindicated. The Supreme Court recognized that the First Amendment protected the associational privacy interests of NAACP members. It directly recognized that freely associating for advocacy or other purposes is a fundamental right. It noted that state invasions of privacy could infringe on that right: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech… Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

    The Supreme Court found that the “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

    In short, we all have the right to engage in associate with one another and to join and communicate with political and religious groups free from government surveillance.

    As our society has moved online, our associations have become digital in nature. Signing up for a membership or learning about an advocacy group often happens over a website or app. Members of modern political groups coordinate donations, activities, and information over social networks, email, and websites. When the NSA—either by itself or by working with corporate “partners”—collects the digital communications and browsing history of countless individuals, it’s also obtaining records of innocent Americans visiting activism websites, becoming members of advocacy groups, and coordinating social movements. EFF also raised this argument in our case against the mass telephone records collection by the NSA (substantially narrowed in 2015First Unitarian Church of Los Angeles v NSA.

    The surveillance of our communications systems, and thereby the surveillance of our communications, infringes on the very rights of private association upheld by the Supreme Court in 1958.

    So while the Fourth Amendment concerns about 702 and mass surveillance are important, they are not the only problem created by the law. And as Alex Abdo, an attorney at the Knight First Amendment Institute at Columbia University, argues that when it comes to confronting government surveillance, we shouldn’t expect the Fourth Amendment alone to protect our First Amendment interests. He recently wrote that “The Fourth Amendment, unlike the First, is blind to the cumulative effects of invasions of privacy that are small in isolation but substantial in combination.”

    Those cumulative effects are especially felt when it comes to the right to publish and access information freely. While the government may be forbidden from censoring online speakers and readers, the cumulative impact of pervasive digital surveillance has a chilling effect on online communities. The specter of government surveillance quells engagement in online forums, social networks, and blogs that discuss controversial, political, or unpopular positions. Knowing that the government is keeping a digital dossier of comments we leave online and articles we digitally share creates an environment in which speakers hesitate to engage in online political advocacy.

    Readers also hesitate to visit websites that may be seen as out of favor with the government, whether that’s Al Jazeera or CNN or EFF’s own site, knowing that their visit may be recorded in a government database for years to come.

    The NSA’s digital surveillance of countless law-abiding Americans also indirectly affects another key First Amendment right: our right to assembly. Today’s modern protest movements are often organized and fueled by social media and digital communication, where activists coordinate across a wide range of physical locations. The NSA’s pervasive digital surveillance challenges our values as a society that respects and safeguards the right to plan and participate in protests and other political activity, rights which are themselves baked into the First Amendment.

    The pervasive digital surveillance programs of the NSA chip away at the First Amendment protections that underpin our democracy. As Congress considers whether to reauthorize or reform Section 702 surveillance in the coming weeks, we urge them to remember that their choice will not just impact the privacy of Americans, it will have a profound impact on freedom of speech, association, and assembly protected by the First Amendment and ultimately, upon our democracy itself.

    Contact Congress today to speak out against NSA surveillance.

    Source: NSA Internet Surveillance Under Section 702 Violates the First Amendment | Electronic Frontier Foundation



  • 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