Group items tagged

EFF filed a brief in federal court arguing that a lower court’s ruling jeopardizes the online platforms that make the Internet a robust platform for users’ free speech. The brief, filed in the U.S. Court of Appeals for the Ninth Circuit, argues that 47 U.S.C. § 230, enacted as part of the Communications Decency Act (known simply as “Section 230”) broadly protects online platforms, including review websites, when they aggregate or otherwise edit users’ posts. Generally, Section 230 provides legal immunity for online intermediaries that host or republish speech by protecting them against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. Section 230’s immunity directly led to the development of the platforms everyone uses today, allowing people to upload videos to their favorite platforms such as YouTube, as well as leave reviews on Amazon or Yelp. It also incentivizes the creation of new platforms that can host users’ content, leading to more innovation that enables the robust free speech found online. The lower court’s decision in Consumer Cellular v. ConsumerAffairs.com, however, threatens to undermine the broad protections of Section 230, EFF’s brief argues.

In the case, Consumer Cellular alleged, among other things, that ConsumerAffairs.com should be held liable for aggregating negative reviews about its business into a star rating. It also alleged that ConsumerAffairs.com edited or otherwise deleted certain reviews of Consumer Cellular in bad faith. Courts and the text of Section 230, however, plainly allow platforms to edit or aggregate user-generated content into summaries or star ratings without incurring legal liability, EFF’s brief argues. It goes on: “And any function protected by Section 230 remains so regardless of the publisher’s intent.” By allowing Consumer Cellular’s claims against ConsumerAffairs.com to proceed, the lower court seriously undercut Section 230’s legal immunity for online platforms. If the decision is allowed to stand, EFF’s brief argues, then platforms may take steps to further censor or otherwise restrict user content out of fear of being held liable. That outcome, EFF warns, could seriously diminish the Internet’s ability to serve as a diverse forum for free speech. The Internet it is constructed of and depends upon intermediaries. The many varied online intermediary platforms, including Twitter, Reddit, YouTube, and Instagram, all give a single person, with minimal resources, almost anywhere in the world the ability to communicate with the rest of the world. Without intermediaries, that speaker would need technical skill and money that most people lack to disseminate their message. If our legal system fails to robustly protect intermediaries, it fails to protect free speech online.

Last week, the Administrative Office (AO) of the US Courts published the 2014 Wiretap Report, an annual report to Congress concerning intercepted wire, oral, or electronic communications as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. News headlines touted that the number of federal and state wiretaps for 2014 was down 1% for a total of 3,554. Of these, there were few involving encrypted communications; and for those, law enforcement agencies were in most cases able to overcome the encryption. But there is a bigger story that calls into question the accuracy of the all of the prior reports submitted to the AO and the overall data provided to Congress and the public in the Wiretap Reports. Since the Snowden revelations, more and more companies have started publishing “transparency reports” about the number and nature of government demands to access their users’ data. AT&T, Verizon, and Sprint published data for 2014 earlier this year and T-Mobile published its first transparency report on the same day the AO released the Wiretap Report. In aggregate, the four companies state that they implemented 10,712 wiretaps, a threefold difference over the total number reported by the AO. Note that the 10,712 number is only for the four companies listed above and does not reflect wiretap orders received by other telephone carriers or online providers, so the discrepancy actually is larger.

So what accounts for the huge gap in reporting? That is a question Congress and the AO should be asking prosecutors and judges who are required by law to make complete and accurate reports of the number of wiretaps conducted each year. Are wiretaps being consistently under­reported to Congress and the public? Based on the data reported by the four major carriers for 2013 and 2014, it certainly would appear to be the case.

The digital privacy world was rocked late Thursday evening when The New York Times reported on Securus, a prison telecom company that has a service enabling law enforcement officers to locate most American cell phones within seconds. The company does this via a basic Web interface leveraging a location API—creating a way to effectively access a massive real-time database of cell-site records. Securus’ location ability relies on other data brokers and location aggregators that obtain that information directly from mobile providers, usually for the purposes of providing some commercial service like an opt-in product discount triggered by being near a certain location. ("You’re near a Carl’s Jr.! Stop in now for a free order of fries with purchase!") The Texas-based Securus reportedly gets its data from 3CInteractive, which in turn buys data from LocationSmart. Ars reached 3CInteractive's general counsel, Scott Elk, who referred us to a spokesperson. The spokesperson did not immediately respond to our query. But currently, anyone can get a sense of the power of a location API by trying out a demo from LocationSmart itself. Currently, the Supreme Court is set to rule on the case of Carpenter v. United States, which asks whether police can obtain more than 120 days' worth of cell-site location information of a criminal suspect without a warrant. In that case, as is common in many investigations, law enforcement presented a cell provider with a court order to obtain such historical data. But the ability to obtain real-time location data that Securus reportedly offers skips that entire process, and it's potentially far more invasive. Securus’ location service as used by law enforcement is also currently being scrutinized. The service is at the heart of an ongoing federal prosecution of a former Missouri sheriff’s deputy who allegedly used it at least 11 times against a judge and other law enforcement officers. On Friday, Sen. Ron Wyden (D-Ore.) publicly released his formal letters to AT&T and also to the Federal Communications Commission demanding detailed answers regarding these Securus revelations.

Today we are releasing the implementation guide for EFF’s Do Not Track (DNT) policy. For years users have been able to set a Do Not Track signal in their browser, but there has been little guidance for websites as to how to honor that request. EFF’s DNT policy sets out a meaningful response for servers to follow, and this guide provides details about how to apply it in practice. At its core, DNT protects user privacy by excluding the use of unique identifiers for cross-site tracking, and by limiting the retention period of log data to ten days. This short retention period gives sites the time they need for debugging and security purposes, and to generate aggregate statistical data. From this baseline, the policy then allows exceptions when the user's interactions with the site—e.g., to post comments, make a purchase, or click on an ad—necessitates collecting more information. The site is then free to retain any data necessary to complete the transaction. We believe this approach balances users’ privacy expectations with the ability of websites to deliver the functionality users want. Websites often integrate third-party content and rely on third-party services (like content delivery networks or analytics), and this creates the potential for user data to be leaked despite the best intentions of the site operator. The guide identifies potential pitfalls and catalogs providers of compliant services. It is common, for example, to embed media from platforms like You Tube, Sound Cloud, and Twitter, all of which track users whenever their widgets are loaded. Fortunately, Embedly, which offers control over the appearance of embeds, also supports DNT via its API, displaying a poster instead and loading the widget only if the user clicks on it knowingly.

Knowledge makes the difference between willing tracking and non-consensual tracking. Users should be able to choose whether they want to give up their privacy in exchange for using a site or a  particular feature. This means sites need to be transparent about their practices. A great example of this is our biggest adopter, Medium, which does not track DNT users who browse the site and gives clear information about tracking to users when they choose to log in. This is their previous log-in panel, the DNT language is currently being added to their new interface.