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EFF, Human Rights Watch, and Over 70 Civil Society Groups Ask Mark Zuckerberg to Provide All Users with Mechanism to Appeal Content Censorship on Facebook World’s Freedom of Expression Is In Your Hands, Groups Tell CEO San Francisco—The Electronic Frontier Foundation (EFF) and more than 70 human and digital rights groups called on Mark Zuckerberg today to add real transparency and accountability to Facebook’s content removal process. Specifically, the groups demand that Facebook clearly explain how much content it removes, both rightly and wrongly, and provide all users with a fair and timely method to appeal removals and get their content back up. While Facebook is under enormous—and still mounting—pressure to remove material that is truly threatening, without transparency, fairness, and processes to identify and correct mistakes, Facebook’s content takedown policies too often backfire and silence the very people that should have their voices heard on the platform.  Politicians, museums, celebrities, and other high profile groups and individuals whose improperly removed content can garner media attention seem to have little trouble reaching Facebook to have content restored—they sometimes even receive an apology. But the average user? Not so much. Facebook only allows people to appeal content decisions in a limited set of circumstances, and in many cases, users have absolutely no option to appeal. Onlinecensorship.org, an EFF project for users to report takedown notices, has collected reports of hundreds of unjustified takedown incidents where appeals were unavailable. For most users, content Facebook removes is rarely restored, and some are banned from the platform for no good reason. EFF, Article 19, the Center for Democracy and Technology, and Ranking Digital Rights wrote directly to Mark Zuckerberg today demanding that Facebook implement common sense standards so that average users can easily appeal content moderation decisions, receive prompt replies and timely review by a human or humans, and have the opportunity to present evidence during the review process. The letter was co-signed by more than 70 human rights, digital rights, and civil liberties organizations from South America, Europe, the Middle East, Asia, Africa, and the U.S.

A U.S. appeals court ruled on Friday that Google's massive effort to scan millions of books for an online library does not violate copyright law, rejecting claims from a group of authors that the project illegally deprives them of revenue.The 2nd U.S. Circuit Court of Appeals in New York rejected infringement claims from the Authors Guild and several individual writers, and found that the project provides a public service without violating intellectual property law.

Google argued that the effort would actually boost book sales by making it easier for readers to find works, while introducing them to books they might not otherwise have seen.A lawyer for the authors did not immediately respond to a request for comment.Google had said it could face billions of dollars in potential damages if the authors prevailed. Circuit Judge Denny Chin, who oversaw the case at the lower court level, dismissed the litigation in 2013, prompting the authors' appeal.Chin found Google's scanning of tens of millions of books and posting "snippets" online constituted "fair use" under U.S. copyright law.A unanimous three-judge appeals panel said the case "tests the boundaries of fair use," but found Google's practices were ultimately allowed under the law. "Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests)," Circuit Judge Pierre Leval wrote for the court.

The 2nd Circuit had previously rejected a similar lawsuit from the Authors Guild in June 2014 against a consortium of universities and research libraries that built a searchable online database of millions of scanned works.The case is Authors Guild v. Google Inc, 2nd U.S. Circuit Court of Appeals, No. 13-4829.

Justia.com Opinion Summary: Plaintiffs alleged that they purchased billions of dollars worth of mobile handsets containing defendants' LCD panels and that the prices they paid for those handsets were artificially inflated because defendants had orchestrated a global conspiracy to fix the prices of LCD panels. The district court certified to the court pursuant to 28 U.S.C. 1292(b) "the question whether the application of California antitrust law to claims against defendants based on purchases that occurred outside California would violate the Due Process Clause of the United States Constitution." Because the underlying conduct in this case involved not just the indirect purchase of price-fixed goods, but also the conspiratorial conduct that led to the sale of those goods, the court answered in the negative. To the extent a defendant's conspiratorial conduct was sufficiently connected to California, and was not "slight and casual," the application of California law to that conduct was "neither arbitrary nor fundamentally unfair," and the application of California law did not violate that defendant's rights under the Due Process Clause. Therefore, the court reversed the district court's order dismissing plaintiffs' California law claims and remanded for further proceedings.

Does publishing a hyperlink to freely available content amount to an illegal communication to the public and therefore a breach of creator's copyrights under European law? After examining a case referred to it by Sweden's Court of Appeal, the Court of Justice of the European Union has ruled today that no, it does not.

One such case, referred to the CJEU by Sweden’s Court of Appeal, is of particular interest to Internet users as it concerns the very mechanism that holds the web together. The dispute centers on a company called Retriever Sverige AB, an Internet-based subscription service that indexes links to articles that can be found elsewhere online for free. The problem came when Retriever published links to articles published on a newspaper’s website that were written by Swedish journalists. The company felt that it did not have to compensate the journalists for simply linking to their articles, nor did it believe that embedding them within its site amounted to copyright infringement. The journalists, on the other hand, felt that by linking to their articles Retriever had “communicated” their works to the public without permission. In the belief they should be paid, the journalists took their case to the Stockholm District Court. They lost their case in 2010 and decided to take the case to appeal. From there the Svea Court of Appeal sought advice from the EU Court. Today the Court of Justice published its lengthy decision and it’s largely good news for the Internet.

The multitude of services gives Microsoft an early edge when it comes to cloud, but the channel-enablement model for Cisco can create much greater scale than a direct to line-of-business model. The key is ensuring its resellers are fully trained in selling to line-of-business, which isn't a simple undertaking. Bottom line: With regard to cloud, Microsoft has a faster route to market, but Cisco's should give it an advantage over time.

With regards to UC, as this market transitions away from products to platforms, services will play a significant role. Cisco's services plays a role similar to IBM services. IBM's consulting group works with its top tier customers to understand how to solve business problems through compute-centric solutions. Cisco services works with its customers to create solutions through networking- and communications-related products. As more and more organizations look to leverage UC strategically, I would expect Cisco services to target its top-tier customers. The key for Cisco then is to take these solutions and push them down through its channel for scale and market share gains.

Judge Jackson is an American hero and news of his passing thumped me hard. His ruling against Microsoft and the subsequent overturn of that ruling resulted, IMHO, in two extraordinary directions that changed the world. Sure the what-if game is interesting, but the reality itself is stunning enough. Of course, Judge Jackson sought to break the monopoly. The US Court of Appeals overturn resulted in the monopoly remaining intact, but the Internet remaining free and open. Judge Jackson's breakup plan had a good shot at achieving both a breakup of the monopoly and, a free and open Internet. I admit though that at the time I did not favor the Judge's plan. And i actually did submit a proposal based on Microsoft having to both support the WiNE project, and, provide a complete port to WiNE to any software provider requesting a port. I wanted to break the monopolist's hold on the Windows Productivity Environment and the hundreds of millions of investment dollars and time that had been spent on application development forever trapped on that platform. For me, it was the productivity platform that had to be broken.

Does the National Security Agency (NSA) have the authority to collect and keep all encrypted Internet traffic for as long as is necessary to decrypt that traffic? That was a question first raised in June 2013, after the minimization procedures governing telephone and Internet records collected under Section 702 of the Foreign Intelligence Surveillance Act were disclosed by Edward Snowden. The issue quickly receded into the background, however, as the world struggled to keep up with the deluge of surveillance disclosures. The Intelligence Authorization Act of 2015, which passed Congress this last December, should bring the question back to the fore. It established retention guidelines for communications collected under Executive Order 12333 and included an exception that allows NSA to keep ‘incidentally’ collected encrypted communications for an indefinite period of time. This creates a massive loophole in the guidelines. NSA’s retention of encrypted communications deserves further consideration today, now that these retention guidelines have been written into law. It has become increasingly clear over the last year that surveillance reform will be driven by technological change—specifically by the growing use of encryption technologies. Therefore, any legislation touching on encryption should receive close scrutiny.

Section 309 of the intel authorization bill describes “procedures for the retention of incidentally acquired communications.” It establishes retention guidelines for surveillance programs that are “reasonably anticipated to result in the acquisition of [telephone or electronic communications] to or from a United States person.” Communications to or from a United States person are ‘incidentally’ collected because the U.S. person is not the actual target of the collection. Section 309 states that these incidentally collected communications must be deleted after five years unless they meet a number of exceptions. One of these exceptions is that “the communication is enciphered or reasonably believed to have a secret meaning.” This exception appears to be directly lifted from NSA’s minimization procedures for data collected under Section 702 of FISA, which were declassified in 2013. 

While Section 309 specifically applies to collection taking place under E.O. 12333, not FISA, several of the exceptions described in Section 309 closely match exceptions in the FISA minimization procedures. That includes the exception for “enciphered” communications. Those minimization procedures almost certainly served as a model for these retention guidelines and will likely shape how this new language is interpreted by the Executive Branch. Section 309 also asks the heads of each relevant member of the intelligence community to develop procedures to ensure compliance with new retention requirements. I expect those procedures to look a lot like the FISA minimization guidelines.

Three cases that likely lay the groundwork for a major privacy battle at the U.S. Supreme Court are pending before federal appeals courts, whose judges are taking their time announcing whether they believe the dragnet collection of Americans' phone records is legal. It’s been more than five months since the American Civil Liberties Union argued against the National Security Agency program in New York, three months since legal activist Larry Klayman defended his thus far unprecedented preliminary injunction win in Washington, D.C., and two months since Idaho nurse Anna Smith’s case was heard by appeals judges in Seattle. At the district court level, judges handed down decisions about a month after oral arguments in the cases. It’s unclear what accounts for the delay. It’s possible judges are meticulously crafting opinions that are likely to receive wide coverage, or that members of the three-judge panels are clashing on the appropriate decision.

Attorneys involved in the cases understandably are reluctant to criticize the courts, but all express hope for speedy resolution of their fights against alleged violations of Americans’ Fourth Amendment rights.

Though it’s difficult to accurately predict court decisions based on oral arguments, opponents of the mass surveillance program may have reason for optimism.

The Federal Communications Commission is poised to ruin the free Internet on a technicality. The group is expected to introduce new net neutrality laws that would allow companies to pay for better access to consumers through deals similar to the one struck by Netflix and Comcast earlier this year. The argument is that those deals don’t technically fall under the net neutrality umbrella, so these new rules won’t apply to them even though they directly affect the Internet. At least the commission is being upfront about its disinterest in protecting the free Internet.

The Verge notes that the proposed rules will offer some protections to consumers: The Federal Communication Commission’s proposal for new net neutrality rules will allow internet service providers to charge companies for preferential treatment, effectively undermining the concept of net neutrality, according to The Wall Street Journal. The rules will reportedly allow providers to charge for preferential treatment so long as they offer that treatment to all interested parties on “commercially reasonable” terms, with the FCC will deciding whether the terms are reasonable on a case-by-case basis. Providers will not be able to block individual websites, however. The goal of net neutrality rules is to prevent service providers from discriminating between different content, allowing all types of data and all companies’ data to be treated equally. While it appears that outright blocking of individual services won’t be allowed, the Journal reports that some forms of discrimination will be allowed, though that will apparently not include slowing down websites.

Re/code summarizes the discontent with these proposed rules: Consumer groups have complained about that plan because they’re worried that Wheeler’s rules may not hold up in court either. A federal appeals court rejected two previous versions of net neutrality rules after finding fault in the FCC’s legal reasoning. During the latest smackdown, however, the court suggested that the FCC had some authority to impose net neutrality rules under a section of the law that gives the agency the ability to regulate the deployment of broadband lines. Internet activists would prefer that the FCC just re-regulate Internet lines under old rules designed for telephone networks, which they say would give the agency clear authority to police Internet lines. Wheeler has rejected that approach for now. Phone and cable companies, including Comcast, AT&T and Verizon, have vociferously fought that idea over the past few years.

Europe’s highest court on Tuesday struck down an international agreement that allowed companies to move digital information like people’s web search histories and social media updates between the European Union and the United States. The decision left the international operations of companies like Google and Facebook in a sort of legal limbo even as their services continued working as usual.The ruling, by the European Court of Justice, said the so-called safe harbor agreement was flawed because it allowed American government authorities to gain routine access to Europeans’ online information. The court said leaks from Edward J. Snowden, the former contractor for the National Security Agency, made it clear that American intelligence agencies had almost unfettered access to the data, infringing on Europeans’ rights to privacy. The court said data protection regulators in each of the European Union’s 28 countries should have oversight over how companies collect and use online information of their countries’ citizens. European countries have widely varying stances towards privacy.

Data protection advocates hailed the ruling. Industry executives and trade groups, though, said the decision left a huge amount of uncertainty for big companies, many of which rely on the easy flow of data for lucrative businesses like online advertising. They called on the European Commission to complete a new safe harbor agreement with the United States, a deal that has been negotiated for more than two years and could limit the fallout from the court’s decision.

Some European officials and many of the big technology companies, including Facebook and Microsoft, tried to play down the impact of the ruling. The companies kept their services running, saying that other agreements with the European Union should provide an adequate legal foundation.But those other agreements are now expected to be examined and questioned by some of Europe’s national privacy watchdogs. The potential inquiries could make it hard for companies to transfer Europeans’ information overseas under the current data arrangements. And the ruling appeared to leave smaller companies with fewer legal resources vulnerable to potential privacy violations.

Gagging orders in the FBI's National Security Letters are all above board and constitutional, a California court has ruled. These security letters are typically sent to internet giants demanding information on whoever is behind a username or email address. Crucially, these requests include clauses that prevent the organizations from warning specific subscribers that they are under surveillance by the Feds. Cloudflare and Credo Mobile aren't happy with that, and – with the help of rights warriors at the EFF – challenged the gagging orders. Despite earlier successes in their legal battle, the 9th US Circuit Court of Appeals ruled [PDF] on Monday that the gagging orders do not trample on First Amendment rights.

The FBI dishes out thousands of National Security Letters (NSLs) every year; they can simply be issued by a special agent in charge in a bureau field office, and don’t require judicial review. They allow the Feds to obtain the name, address, and records of any services used – but not the contents of conversations – plus billing records of a person, and forbid the hosting company from telling the subject, meaning those under investigation can’t challenge the decision. It used to be the case that companies couldn’t even mention the existence of the NSL system for fear of prosecution. However, in 2013 a US district court in San Francisco ruled that such extreme gagging violated the First Amendment. That decision came after Google, and later others, started publishing the number of NSL orders that had been received, in defiance of the law. In 2015 the Obama administration amended the law to allow companies limited rights to disclose NSL orders, and to set a three-year limit for the gagging order. It also set up a framework for companies to challenge the legitimacy of NSL subpoenas, and it was these changes that caused the appeals court verdict in favor of the government.

This month, the United States District Court for the District of Columbia ruled that the Department of Homeland Security must make its plan to shut off the Internet and cellphone communications available to the American public. You, of course, may now be thinking: What plan?! Though President Barack Obama swiftly disapproved of ousted Egyptian President Hosni Mubarak turning off the Internet in his country (to quell widespread civil disobedience) in 2011, the US government has the authority to do the same sort of thing, under a plan that was devised during the George W. Bush administration. Many details of the government’s controversial “kill switch” authority have been classified, such as the conditions under which it can be implemented and how the switch can be used. But thanks to a Freedom of Information Act lawsuit filed by the Electronic Privacy Information Center (EPIC), DHS has to reveal those details by December 12 — or mount an appeal. (The smart betting is on an appeal, since DHS has fought to release this information so far.) Yet here’s what we do know about the government’s “kill switch” plan:

What are the constitutional problems? Civil liberties advocates argue that kill switches violate the First Amendment and pose a problem because they aren’t subject to rigorous judicial and congressional oversight. “There is no court in the loop at all, at any stage in the SOP 303 process,” according to the Center for Democracy and Technology. ”The executive branch, untethered by the checks and balances of court oversight, clear instruction from Congress, or transparency to the public, is free to act as it will and in secret.” David Jacobs of EPIC says, “Cutting off communications imposes a prior restraint on speech, so the First Amendment imposes the strictest of limitations…We don’t know how DHS thinks [the kill switch] is consistent with the First Amendment.” He adds, “Such a policy, unbounded by clear rules and oversight, just invites abuse.”

A federal judge in Idaho has upheld the constitutionality of the National Security Agency's program that gathers massive quanities of data on the telephone calls of Americans. The ruling Tuesday from U.S. District Court Judge B. Lynn Winmill leaves the federal government with two wins in lawsuits decided since the program was revealed about a year ago by ex-NSA contractor Edward Snowden. In addition, one judge handling a criminal case ruled that the surveillance did not violate the Constitution. Opponents of the program have only one win: U.S. District Court Judge Richard Leon's ruling in December that the program likely violates the Fourth Amendment. In the new decision, Winmill said binding precedent in the Ninth Circuit holds that call and email metadata are not protected by the Constitution and no warrant is needed to obtain it.

"The weight of the authority favors the NSA," wrote Winmill, an appointee of President Bill Clinton. Winmill took note of Leon's contrary decision and called it eloquent, but concluded it departs from current Supreme Court precedent — though perhaps not for long. "Judge Leon’s decision should serve as a template for a Supreme Court opinion. And it might yet," Winmill wrote as he threw out the lawsuit brought by an Idaho registered nurse who objected to the gathering of data on her phone calls. Winmill's opinion (posted here) does not address an argument put forward by some critics of the program, including some lawmakers: that the metadata program violates federal law because it does not fit squarely within the language of the statute used to authorize it.

The government and police regularly use location data pulled off of cell phone towers to put criminals at the scenes of crimes—often without a warrant. Well, an appeals court ruled today that the practice is unconstitutional, in one of the strongest judicial defenses of technology privacy rights we've seen in a while.  The United States Court of Appeals for the Eleventh Circuit ruled that the government illegally obtained and used Quartavious Davis's cell phone location data to help convict him in a string of armed robberies in Miami and unequivocally stated that cell phone location information is protected by the Fourth Amendment. "In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy," the court ruled in an opinion written by Judge David Sentelle. "The obtaining of that data without a warrant is a Fourth Amendment violation."

In Davis's case, police used his cell phone's call history against him to put him at the scene of several armed robberies. They obtained a court order—which does not require the government to show probable cause—not a warrant, to do so. From now on, that'll be illegal. The decision applies only in the Eleventh Circuit, but sets a strong precedent for future cases.

Indeed, the decision alone is a huge privacy win, but Sentelle's strong language supporting cell phone users' privacy rights is perhaps the most important part of the opinion. Sentelle pushed back against several of the federal government's arguments, including one that suggested that, because cell phone location data based on a caller's closest cell tower isn't precise, it should be readily collectable.  "The United States further argues that cell site location information is less protected than GPS data because it is less precise. We are not sure why this should be significant. We do not doubt that there may be a difference in precision, but that is not to say that the difference in precision has constitutional significance," Sentelle wrote. "That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy." The court also cited the infamous US v. Jones Supreme Court decision that held that attaching a GPS to a suspect's car is a "search" under the Fourth Amendment. Sentelle suggested a cell phone user has an even greater expectation of location privacy with his or her cell phone use than a driver does with his or her car. A car, Sentelle wrote, isn't always with a person, while a cell phone, these days, usually is.

WASHINGTON (AP) -- The Obama administration has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods, The Associated Press has learned. Citing security reasons, the U.S. has intervened in routine state public records cases and criminal trials regarding use of the technology. This has resulted in police departments withholding materials or heavily censoring documents in rare instances when they disclose any about the purchase and use of such powerful surveillance equipment. Federal involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures about classified federal surveillance programs.

One well-known type of this surveillance equipment is known as a Stingray, an innovative way for law enforcement to track cellphones used by suspects and gather evidence. The equipment tricks cellphones into identifying some of their owners' account information, like a unique subscriber number, and transmitting data to police as if it were a phone company's tower. That allows police to obtain cellphone information without having to ask for help from service providers, such as Verizon or AT&T, and can locate a phone without the user even making a call or sending a text message. But without more details about how the technology works and under what circumstances it's used, it's unclear whether the technology might violate a person's constitutional rights or whether it's a good investment of taxpayer dollars. Interviews, court records and public-records requests show the Obama administration is asking agencies to withhold common information about the equipment, such as how the technology is used and how to turn it on. That pushback has come in the form of FBI affidavits and consultation in local criminal cases.

"These extreme secrecy efforts are in relation to very controversial, local government surveillance practices using highly invasive technology," said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union, which has fought for the release of these types of records. "If public participation means anything, people should have the facts about what the government is doing to them." Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement "coordinate with the FBI the acquisition and use of the equipment." Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies. A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. "As a government contractor, our solutions are regulated and their use is restricted," spokesman Jim Burke said.

Four months from now, at the same time that the National Security Agency finally abandons the massive domestic telephone dragnet exposed by whistleblower Edward Snowden, it will also stop perusing the vast archive of data collected by the program. The NSA announced on Monday that it will expunge all the telephone metadata it previously swept up, citing Section 215 of the U.S.A Patriot Act. The program was ruled illegal by a federal appeals court in May. In June, Congress voted to end the program, but gave the NSA until the end of November to phase it out. The historical metadata —  records of American phone calls showing who called who, when, and for how long — will be put out of the reach of analysts on November 29, although technical personnel will have access for three more months. The program started 14 years ago, and operated under rules requiring data be retained for five years, and then destroyed.

The only possible hold-up, ironically, would be if any of the civil lawsuits prompted by the program prohibit the destruction of the data. “The telephony metadata” will be “preserved solely because of preservation obligations in pending civil litigation,” the Office of the Director of National Intelligence announced. “As soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.” ACLU staff attorney Alex Abdo told The Intercept his organization is “pleased that the NSA intends to purge the call records it has collected illegally.” But, he added: “Even with today’s pledge, the devil may be in the details.”

The National Security Agency doesn’t think it’s relevant that its dragnet of American telephone data — information on who’s calling who, when, and for how long — was ruled illegal back in May. An American Civil Liberties Union lawsuit is asking the Second Circuit Court of Appeals, which reached that conclusion, to immediately enjoin the program. But the U.S. government responded on Monday evening, saying that Congressional passage of the USA Freedom Act trumped the earlier ruling. The Freedom Act ordered an end to the program — but with a six-month wind-down period.

The ACLU still maintains that even temporary revival is a blatant infringement on American’s legal rights. “We strongly disagree with the government’s claim that recent reform legislation was meant to give the NSA’s phone-records dragnet a new lease on life,” said Jameel Jaffer, the ACLU’s deputy legal director in a statement. “The appeals court should order the NSA to end this surveillance now.  It’s unlawful and it’s an entirely unnecessary intrusion into the privacy of millions of people.” On Monday, the Obama administration announced that at the same time the National Security Agency ends the dragnet, it will also stop perusing the vast archive of data collected by the program. Read the U.S. government brief responding to the ACLU below: