EFF: Digital Rights Groups Demand Deletion of Unlawful Filtering Mandate From Proposed EU Copyright Law

Digital Rights Groups Demand Deletion of Unlawful Filtering Mandate From Proposed EU Copyright Law

Today EFF and 56 other civil society organizations have sent an open letter [PDF] to European lawmakers outlining our grave concerns with Article 13 of the proposed new Directive on Copyright in the Digital Single Market, which would impose a new responsibility on Internet platforms to filter content that their users upload. The letter explains:

Article 13 introduces new obligations on internet service providers that share and store user-generated content, such as video or photo-sharing platforms or even creative writing websites, including obligations to filter uploads to their services. Article 13 appears to provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications if they are to have any chance of staying in business. …

Article 13 would force these companies to actively monitor their users’ content, which contradicts the “no general obligation to monitor” rules in the Electronic Commerce Directive. The requirement to install a system for filtering electronic communications has twice been rejected by the Court of Justice, in the cases Scarlet Extended (C 70/10) and Netlog/Sabam (C 360/10). Therefore, a legislative provision that requires internet companies to install a filtering system would almost certainly be rejected by the Court of Justice because it would contravene the requirement that a fair balance be struck between the right to intellectual property on the one hand, and the freedom to conduct business and the right to freedom of expression, such as to receive or impart information, on the other.

European Commission Foreshadows More Of the Same To Come

Article 13 is bad enough as a copyright filtering mandate. But what makes the proposal even more alarming is that it won’t stop there. If we lose the battle against the use of upload filters for copyright, we’ll soon see a push for a similar mandate on platforms to filter other types of content, beginning with ill-defined “hate speech” and terrorist content, and ending who knows where. Evidence for this comes in the form of a Communication on Tackling Illegal Content Online, released last month. The Communication states:

Online platforms should do their utmost to proactively detect, identify and remove illegal content online. The Commission strongly encourages online platforms to use voluntary, proactive measures aimed at the detection and removal of illegal content and to step up cooperation and investment in, and use of, automatic detection technologies.

The Communication also talks up the possibility of “so-called ‘trusted flaggers’, as specialised entities with specific expertise in identifying illegal content,” being given special privileges to initiate content removal. However, we already have bodies that have expertise in identifying illegal content. They’re called courts. As analyses of the Communication by European Digital Rights (EDRi), the Center for Democracy and Technology (CDT), and Intellectual Property Watch point out, shifting the burden of ruling on the legality of content from courts onto private platforms and their “trusted flaggers” will inevitably result in over-removal by those platforms of content that a court would have found to be lawful speech.

The Communication clearly foreshadows future legislative measures as soon as 2018 if no significant progress is made by the platforms in rolling out automated filtering and trusted flagging procedures on a “voluntary” basis. This means that the Communication, although expressed to be non-binding, is not really “voluntary” at all, but rather a form of undemocratic Shadow Regulation by the unelected European Commission. And the passage of the upload filtering mandate in the Digital Single Market Directive would be all the encouragement needed for the Commission to press forward with its broader legislative agenda.

The Link Tax Paid To Publishers … That Publishers Don’t Want

The upload filtering mandate in Article 13 isn’t the only provision of the proposed Directive that concerns us. Another provision of concern, Article 11, would impose a new “link tax” payable to news publishers on websites that publish small snippets of news articles to contextualize links to those articles. Since we last wrote about this, an interesting new report has come out providing evidence that European publishers—who are the supposed beneficiaries of the link tax—actually oppose it. The report also states:

[T]here is little evidence that the decline in newspaper revenues has anything to do with the activities of news aggregators or search engines (that appear as the primary targets of the new right). In fact, it is widely recognised that there are two reasons for the decline in newspaper revues: changes in advertising practice associated with the Internet (but not especially related to digital use of new material on the Internet); and the decline in subscriptions, which may be in part related to the decision of press publishers to make their products available on the Internet. These are simply changes in the newspaper market that have little, if anything, to do with the supposed “unethical” free riding of other internet operators.

The European Parliament’s Civil Liberties (LIBE) Committee is due to vote on its opinion on the Digital Single Market proposals this Thursday, 19 October. Although it’s not the final vote on these measures, it could be the most decisive one, since a recommendation for deletion of Article 11 and Article 13 at the LIBE committee would be influential in convincing the lead committee (the Legal Affairs or JURI Committee) to follow suit.

Digital rights group OpenMedia has provided a click-to-call tool that you can use, available in EnglishFrenchGermanSpanish, and Polish, to express your opposition to the upload filtering mandate and the link tax. If you are European or have European friends or colleagues, please do take this opportunity to speak out and oppose these proposals, which could change the Internet as we know it in harmful and unnecessary ways.

Published October 16, 2017 at 05:12PM
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Battistoni Italian Specialty Meats, LLC, Retira Productos De Salami Y Capocollo Por Posible Contaminación Con Material Extraño

Battistoni Italian Specialty Meats, LLC, Retira Productos De Salami Y Capocollo Por Posible Contaminación Con Material Extraño
Battistoni Italian Specialty Meats, LLC, un establecimiento localizado en Buffalo, N.Y., está retirando del mercado aproximadamente 22,630 libras de productos de Genoa Salami y Capocollo listos para comer (ready-to-eat o RTE) que podrían estar contaminados con material extraño.

Published October 14, 2017 at 10:29AM
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Vermont Livestock Slaughter And Processing Llc, Retira Productos De Carne Molida De Res Debido A Una Posible Contaminación Con E.Coli O157:H7

Vermont Livestock Slaughter And Processing Llc, Retira Productos De Carne Molida De Res Debido A Una Posible Contaminación Con E.Coli O157:H7
Vermont Livestock Slaughter and Processing, LLC, un establecimiento localizado en Ferrisburg, Vt., está retirando del mercado aproximadamente 133 libras de productos de carne molida de res que podrían estar contaminados con E. coli O157:H7.

Published October 13, 2017 at 02:26PM
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J & B Sausage Company, Inc. Retira Productos De Carne Res Desmenuzada Completamente Cocidos Debido A Una Posible Contaminación Con Material Extraño

J & B Sausage Company, Inc. Retira Productos De Carne Res Desmenuzada Completamente Cocidos Debido A Una Posible Contaminación Con Material Extraño
J & B Sausage Company, Inc., haciendo negocios como J Bar B Foods, un establecimiento localizado en Waelder, Texas, está retirando del mercado aproximadamente 12,816 libras de productos de carne de res desmenuzada completamente cocidos que podría estar contaminada con materiales extraños, específicamente plástico.

Published October 13, 2017 at 05:29AM
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EFF: USA Liberty Act Won’t Fix What’s Most Broken with NSA Internet Surveillance

USA Liberty Act Won’t Fix What’s Most Broken with NSA Internet Surveillance

A key legal linchpin for the National Security Agency’s vast Internet surveillance program is scheduled to disappear in under 90 days. Section 702 of FISA—enacted in 2008 with little public awareness about the scope and power of the NSA’s surveillance of the Internet—supposedly directs the NSA’s powerful surveillance apparatus toward legitimate foreign intelligence targets overseas. Instead, the surveillance has been turned back on us. Despite repeated inquiries from Congress, the NSA has yet to publicly disclose how many Americans are impacted by this surveillance. 

With the law’s sunset looming, Congress is taking up the issue. The USA Liberty Act, introduced by Representatives Goodlatte (R-Va.), John Conyers (D-Mich.), Jim Sensenbrenner (R-Wis.), and others, may offer a chance to address some of the worst abuses of NSA Internet surveillance even as it reauthorizes some components of the surveillance for another six years. 

But the first draft of the bill falls short.

The bill doesn’t effectively end the practice of “backdoor searching,” when government agents—including domestic law enforcement not working on issues of national security—search through the NSA-gathered communications of Americans without any form of warrant from a judge. It doesn’t institute adequate transparency and oversight measures, and it doesn’t deal with misuse of the state secrets privilege, which has been invoked to stave off lawsuits against mass surveillance.  

Perhaps most importantly, the bill won’t curtail the NSA’s practices of collecting data on innocent people. 

The bill does make significant changes to how and when agents can search through data collected under 702. It also institutes new reporting requirements, new defaults around data deletion, and new guidance for amicus engagement with the FISA Court. But even these provisions do not go far enough. 

Congress has an opportunity and a responsibility to rein in NSA surveillance abuses. This is the first time, since 2013 reporting by the Washington Post and the Guardian changed the worldwide perception of digital spying, that Congress must vote on whether to reauthorize Section 702. Before this debate moves ahead, leaders in the House Judiciary Committee should fix the shortcomings in this bill. 

The Problems of 702

Section 702 is supposed to give the NSA authority to engage in foreign intelligence collection. The NSA is only allowed to target non-Americans located outside U.S. borders. This legal authority has been the basis for two controversial data collection programs:

  • Upstream surveillance: data collection that siphons off copies of digital communications directly from the “Internet backbone,” the high-capacity fiber-optic cables run by telecommunications companies like AT&T that transmit the majority of American digital communications.
  • PRISM (also known as “downstream surveillance”): data collection gathered from the servers of major Internet service providers, such as Google, Facebook, and Apple.

These programs flourished under President Bush and President Obama. As the Washington Post reported, their NSA director took an expansive view on data collection:

“Rather than look for a single needle in the haystack, his approach was, ‘Let’s collect the whole haystack,’ ” said one former senior U.S. intelligence official who tracked the plan’s implementation. “Collect it all, tag it, store it. . . . And whatever it is you want, you go searching for it.”

Unfortunately, the Liberty Act won’t address most of these fundamental problems.  Here’s an analysis of some of the key provisions in the bill, and we’ll have future articles exploring specific topics in more detail.

Leaving the Backdoor Ajar

Agents for the NSA, CIA, and FBI have long rifled through the communications collected under Section 702, which include American communications, as well as the communications of foreigners who have no connection to crime or national security threats. With no approval from a judge, they’re able to search this database of communications using a range of personal identifiers, then review the contents of communications uncovered in those searches. Government agents can then use these results to build a case against someone, or they may simply review it without prosecution.

Ordinarily, if the FBI wants to intercept or collect a U.S. person’s communications, they must first get permission from a judge. But as a result of Section 702, the FBI today reviews NSA-collected communications of U.S. persons without permission from a judge. Privacy advocates call this the “backdoor search loophole.” 

This practice violates the Fourth Amendment right to privacy against unreasonable searches and seizures. And it can be difficult to prove because government agents may not disclose when they use evidence from the 702 database in prosecutions or for any other purposes. 

The first draft of the Liberty Act doesn’t resolve the problem. It still allows government agents—including domestic law enforcement agents—to query the 702 database, including using identifiers associated with American citizens, such as the email address of an American. The main improvement is that when an agent conducts a query looking for evidence of a crime, she must obtain a probable cause warrant from a judge to access the results. 

But the warrant requirement is limited due to a number of troubling carve-outs. First, this court oversight requirement won’t be triggered except for those searches conducted to find evidence of a crime. No other searches for any other purposes will require court oversight, including when spy agencies search for foreign intelligence, and when law enforcement agencies explore whether a crime occurred at all.

Metadata—how many communications are sent, to whom, at what times—won’t require court oversight at all.  In fact, the Liberty Act doesn’t include the reforms to metadata queries the House had previously passed (which unfortunately did not pass the Senate). In the Massie-Lofgren Amendment, which passed the House twice, agents who conducted queries for metadata would be required to show the metadata was relevant to an investigation. That relevance standard is not in the Liberty Act.

Finally, some may interpret vague language in the bill as putting responsibility for assessing probable cause in the hands of the Attorney General, the main governmental prosecutor, rather than in the hands of the FISA Court. This language should be clarified to ensure the judge’s role in approving the applications is the same as in other FISA proceedings.

Targeting Procedures

The bill will require the NSA to exercise “due diligence in determining whether a person targeted is a non-United States person reasonably believed to be located outside of the United States,” and requires agents to consider the “totality of the circumstances” when making that evaluation.

At face value, this sounds promising. We do want the NSA to exercise due diligence when evaluating targets of surveillance. However, this provision is more of a fig leaf than a real fix, because even if targeting is improved, it won’t resolve the problem of Americans’ communications being collected. Right now, countless Americans are surveilled through so-called “incidental collection.” This means that while the official target was a non-American overseas, American communications are swept up as well. Even though Americans were never the intended “target,” their emails, chats, and VOIP calls end up in a database accessible to the NSA, FBI, and others. Tightening up targeting won’t address this problem.

In addition, the bill doesn’t change the NSA’s practice of intercepting communications of countless innocent foreigners outside the United States. People outside our national borders are not criminals by default and should not be treated as if they were. If the United States wants to uphold our obligations to human rights under the International Covenant on Civil and Political Rights, we must respect the basic privacy and dignity of citizens of other countries. That means not vacuuming up as many communications as possible for all foreigners overseas. This is an especially pressing issue now, as the European Union decides whether to limit how European data can be held by American companies. The recently enacted Privacy Shield falls short of the privacy commitments enshrined in European law. 

Retention of Communications

After the NSA uses Section 702 to collect vast quantities of communications, the NSA stores these records for years to come. Every day the NSA holds these sensitive records is a day they can be misused by rogue government employees or deployed by agency leadership in new ways as part of inevitable “mission creep.” That’s why privacy advocates call for legislation that would require the NSA to purge these Section 702 communications by a fixed deadline, except for specific communications reasonably determined by analysts to have intelligence or law enforcement value.

Unfortunately, the Liberty Act does not solve this problem. Rather, it would only require that if the NSA determines that a communication lacks foreign intelligence value, then the NSA must purge it within 90 days. However, it’s unclear how often the NSA reviews its collected data to assess its foreign intelligence value. Since the bill requires no review, this provision may have little practical effect.

Whistleblowers Left Unprotected

Whistleblowers like Thomas Drake, Mark Klein, Bill Binney, and Edward Snowden were fundamental to the public’s understanding of NSA surveillance abuses. But they risked their careers and often their freedom in the process. The United States has a pressing need to improve protections for whistleblowers acting in the public good—including federal contractors who may be witness to wrongdoing.

The Liberty Act includes a section that would extend certain whistleblower protections to federal contractors. However, these protections only apply to “lawful disclosure” to a handful of government officers, such as the Director of National Intelligence. It does not provide any protection when a whistleblower speaks to the media or to advocacy organizations such as EFF.

Furthermore, the bill only protects whistleblowers against “personnel action,” so whistleblowers could still face criminal prosecution. The Espionage Act—a draconian law from 1917 with penalties including life in prison or the death penalty—has become the tool de jour to intimidate and punish public-interest whistleblowers. The Liberty Act will provide whistleblowers no protection against prosecution under the Espionage Act. 

To make matters worse, the bill also creates new penalties for the unauthorized removal or retention of classified documents, including when done negligently. This will likely be another tool used to go after whistleblowers. This section of the bill must be significantly narrowed or cut. 

Ending “About” Collection 

The National Security Agency announced in April the end of a controversial form of spying known colloquially as “about surveillance.” After collecting data directly from the backbone of the Internet and doing a rough filter, government agents use key selector terms about targeted persons to search through this massive trove of data. In the past, these searches would not merely search the address lines (the to and from section of the communications) but would directly search the full contents of the communications, so that any mention of a selector in the body of the email would be returned in the results. Thus, communications of people who were not surveillance targets, and were not communicating with surveillance targets, were included in the results. 

The NSA was unable to find a way to conduct this type of “about” searching while adhering to restrictions imposed by the FISA Court, and thus the agency discontinued the practice in April. However, this is currently a voluntary policy, and the agency could begin again. In fact, NSA Director Mike Rogers testified before Congress in June that he might recommend that Congress reinstitute the program in the future.

The Liberty Act codifies the end of “about surveillance.” It provides that the NSA must limit its targeting “to communications to or from the targeted person.” While the NSA’s upstream program will still collect the communications passing through the Internet backbone, including the communications of vast numbers of innocent U.S. and foreign citizens, the end of “about” surveillance will reduce the number of communications stored in the 702 database. 

Other Positive Changes in the Bill 

Critically, unlike some other pending reauthorization proposals, the Liberty Act will maintain Section 702’s “sunset,” ensuring that Congress must review, debate, and vote on this issue again in six years. Permanent reauthorization, which we strongly oppose, would prevent this Congressional check on executive overreach.

The Liberty Act makes some other modest improvements to the NSA’s surveillance practices. It gives the Privacy and Civil Liberties Oversight Board the ability to function without an appointed chair, which has been a persistent problem with this accountability body. It also puts in place new reporting requirements. 

The bill would require the FISA Court to appoint an amicus curiae to assist it in reviewing the annual “certification” from the Attorney General and the Director of National Intelligence regarding the NSA’s Section 702 targeting and minimization procedures. This would be a helpful check on this currently one-sided process. However, the FISA Court could dispense with this check whenever it found the amicus appointment “not appropriate” – a nebulous test that could neuter this new safeguard.

A Few More Missing Pieces 

Many vital fixes to the worst surveillance abuses of the NSA are missing from this bill. 

Congress should clear a pathway for individuals to contest privacy abuses by the NSA. This includes ensuring that Americans whose data may have been “incidentally” collected by the NSA under Section 702 have legal standing to go to court to challenge this violation of their constitutional rights. It also requires an overhaul of the controversial state secrets privilege, a common law doctrine that government agencies have invoked to dismiss, or refuse to provide evidence in, cases challenging mass surveillance.

Congress should crack down on “incidental collection,” and ensure the communications of innocent Americans are not collected in the first place. 

Finally, we need to empower the FISA court to review and approve the targets of NSA surveillance. Currently, the NSA receives only general guidelines from the FISA Court, with no individual review of specific targets and selector terms. This means the NSA has little obligation to defend its choice of targets, resulting in little recourse when agents are over-inclusive of inappropriate targets. 

Next steps for the Judiciary Committee 

Congress still has time to get this right. This bill hasn’t gone to markup yet, and the Judiciary Committee is likely to amend the bill before passing it to the floor. We urge the Judiciary Committee members to make changes to the bill to address these shortcomings.

As public awareness of NSA surveillance practices has grown, so too has public outrage. That outrage is the fuel for meaningful change. We passed one bill to begin reining in surveillance abuses in 2015, and from that small victory springs the political will for the next, more powerful reform. Join EFF in calling on Congress to rein in these surveillance abuses, and defend privacy for Internet users of today and in the years to come. 

Speak out.

Published October 16, 2017 at 03:35PM
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EFF: Q&A with Professor Xaioxing Xi, Victim of Unjust Surveillance

Q&A with Professor Xaioxing Xi, Victim of Unjust Surveillance

Professor Xiaoxing Xi, a physics professor with Temple University, was the subject of government surveillance under a FISA order. During September’s Color of Surveillance Hill briefing, Professor Xi told his story of the devastating impact of government surveillance on his life.

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Professor Xi faced a prosecution that was later dropped because there was no evidence that he had engaged in any wrongdoing. Ever since this invasive surveillance against him, he has become an outspoken advocate against race-based surveillance and prosecution.

We asked Professor Xi to elaborate on the surveillance against him and the effect it had on him, his family, and his scientific work. 

Q: People assume their private communications are not visible to others, but it’s become more and more clear that the government is surveilling countless Americans. How did you feel when you learned that the government had been reading your private emails, listening to your private phone calls, and conducting electronic surveillance? 

It was frightening. I knew from the beginning that their charges against me were completely wrong, but we were fearful till the end that they might twist something I wrote in my emails or something I said over the phone to send me to jail. I also felt like I was being violated. When you lose your privacy, it’s like being forced to walk around naked.

Q: Does knowing you had been surveilled cause you concern now, years later? Do you still worry you’re under surveillance?

Yes, my whole family are still seriously concerned about our emails being read and phone calls being listened to. People tell us that it is very unlikely we are still being surveilled, and they are probably right. Once violated, it is very difficult to shake off the fear. We watch every word we write and say, so that we don’t give them excuses to “pick bones out of an egg,” and life is very stressful like this.

Q: Your children were still young when this happened, especially your daughter. How did your family feel about all this? How were they affected?

They were shaken by guns being pointed at them and seeing me snatched away in handcuffs. Everyone was traumatized by this experience, like the sky was falling upon us. My wife was very courageous, trying to shield the children from the harm, even though she herself was under tremendous stress. My elder daughter was a chemistry major, and now she works in a civil rights organization trying to raise the awareness of people about the injustices immigrants face. My younger daughter tries to go about her life like nothing has happened, but we worry about the long term effect on her.

Q: How has your scientific work been affected by this horrible and unjust surveillance and prosecution?

It damaged my scientific research significantly. My reputation is now tainted and the opportunities for me to advance in the scientific community are more limited. My current research group is just a tiny fraction of what I used to have. In addition, I worry about routine academic activities being misconstrued by the government and I am scared to put my name on forms required for obtaining funding and managing research. 

Add your voice. Join EFF in speaking out against mass surveillance. 

Speak Out

Published October 16, 2017 at 12:59PM
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Published October 16, 2017 at 02:33PM
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