The White House Has Gone Full Doublespeak on Fast Track and the TPP Print
Written by Administrator   
Friday, 06 March 2015 04:29

Sen. Ron Wyden and Sen. Orrin Hatch are now in a stand-off over a bill that would put secretive trade deals like the Trans-Pacific Partnership (TPP) agreement on the Fast Track to passage through Congress. The White House meanwhile, has intensified their propaganda campaign, going so far as to mislead the public about how trade deals—like the TPP and its counterpart, the Transatlantic Trade and Investment Partnership (TTIP)—will effect the Internet and users' rights. They are creating videos, writing several blog posts, and then this week, even sent out a letter from an "online small business owner" to everyone on the White House's massive email list, to further misinform the public about Fast Track.

In a blog post published this week, the White House flat out uses doublespeak to tout the benefits of the TPP, even going so far as to claim that without these new trade agreements, "there would be no rules protecting American invention, artistic creativity, and research". That is pure bogus, much like the other lies the White House has been recently saying about its trade policies. Let's look at the four main myths they have been saying to sell lawmakers and the public on Fast Track for the TPP.

Myth #1: TPP Is Good for the Internet

First, there are the claims that this agreement will create "stronger protections of a free and open Internet". As we know from previous leaks of the TPP's Intellectual Property chapter, the complete opposite is true. Most of all, the TPP's ISP liability provisions could create greater incentives for Internet and content providers to block and filter content, or even monitor their users in the name of copyright enforcement. What they believe are efforts toward protecting the future of the Internet are provisions they're advocating for in this and other secret agreements on the "free flow of information". In short, these are policies aimed at subverting data localization laws.

Such an obligation could be a good or a bad thing, depending on what kind of impact it could have on national censorship, or consumer protections for personal data. It's a complicated issue without an easy solution—which is exactly why this should not be decided through secretive trade negotiations. These "free flow of information" rules have likely been lobbied for by major tech companies, which do not want laws to restrict them on how they deal with users' data. It is dishonest to say that what these tech companies can do with people's data is good for all users and the Internet at large.

Myth #2: Fast Track Would Strengthen Congressional Oversight

The second, oft-repeated claim is that Fast Track would strengthen congressional oversight—which is again not true. The U.S. Trade Representative has made this claim throughout the past couple months, including at a Senate Finance Committee hearing in January when he said:

TPA puts Congress in the driver’s seat to define our negotiating objectives and strengthens Congressional oversight by requiring consultations and transparency throughout the negotiating process.

Maybe we could believe this if the White House had fought for Fast Track before delegates began negotiating the TPP and TTIP. Maybe it could also have been true if that bill had ensured that Congress members had easy access to the text and kept a close leash on the White House throughout the process to ensure that the negotiating objectives they had outline were in fact being met in the deal. However, we know from the past several years of TPP negotiations, that Congress has largely been shut out of the process. Many members of Congress have spoken out about the White House's strict rules that have made it exceedingly difficult to influence or even see the terms of these trade deals.

The only way Fast Track could really put "Congress in the driver's seat" over trade policy would be if it fully addressed the lack of congressional oversight over the TPP and TTIP thus far. Lawmakers should be able to hold unlimited debate over the policies being proposed in these deals, and if it comes to it, to amend their provisions. It would be meaningless if the new Fast Track bill enabled more congressional oversight, but if it did not apply to agreements that are ongoing or almost completed.

Myth #3: Small Online Businesses Would Benefit from Fast Track

Then the third misleading claim is that Fast Track would help small businesses. Their repetition of this has become louder amid increasing public awareness that the TPP has primarily been driven by major corporations. What may be good for established multinational companies could also benefit certain small online businesses as well. The White House says that tariffs are hindering small online businesses from selling their products abroad, but research has shown that the kinds of traditional trade barriers, like tariffs, that past trade agreements were negotiated to address are already close to non-existent. Therefore it is unclear what other kind of benefits online businesses would see from the TPP.

Even if there were some benefits, there are many more ways that the TPP could harm small Internet-based companies. The TPP's copyright provisions could lead to policies where ISPs would be forced to implement costly systems to oversee all users' activities and process each takedown notice they receive. They could also discourage investment in new innovative start-ups, even those that plan to "play by the rules", due to the risk that companies would have to sink significant resources into legal defenses against copyright holders, or face heavy deterrent penalties for infringement established by the TPP.

Myth #4: TPP and Other Secret Trade Deals Are a National Security Issue

The last, and most confounding of the White House's assertions is that the TPP and TTIP are an "integral part" of the United States' national security strategy, because its "global strategic interests are intimately linked with [its] broader economic interests." As we have seen with the U.S. government's expansive surveillance regime, "national security" is often invoked for policies even if they directly undermine our civil liberties. It is hard to argue with the administration whether the TPP and TTIP are in fact in the United States' economic or strategic interests, since only they are allowed to see the entire contents of these agreements. Either way, it seems like a huge stretch to say that we can trust the White House and major corporate representatives to determine, in secret, what is in fact good digital policy for the country and the world. We may be hearing this line more and more in the coming weeks as the White House becomes more desperate to legitimize the need for Fast Track to pass the TPP and TTIP.


The fact that the White House has resorted to distorting the truth about its trade policies is enough to demonstrate how little the administration values honesty and transparency in policy making, and how much the public stands to lose from these agreements negotiated in secret. The more they try and espouse the potential gains from Fast Track—while the trade agreements this legislation would advance remain secret—the more reason we ought to be skeptical. If the TPP is so great and if Fast Track would in fact enable more democratic oversight, why are the contents of either of them still not public?


If you're in the United States, take action to stop TPP and other anti-user trade deals from getting fast-tracked through Congress by contacting your lawmaker about trade promotion authority:

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A Way Forward: Bruce Schneier’s Data and Goliath Explains Where Our Privacy is Now, and How We Fix It Print
Written by Administrator   
Friday, 06 March 2015 02:46

EFF is honored to have renowned security technologist Bruce Schneier as a member of our board and a collaborator for nearly 20 years. But even if we’d never met him, we’d still be incredibly excited about the release of his new book, Data and Goliath.

Schneier has been providing detailed analyses of cryptography, big data, NSA leaks, security flaws, and more for decades (when he’s not terrifying NSA Director Mike Rogers with deceptively simple questions about security). What’s exceptional about his writing and his is that he manages to be well-researched, in-depth, and accurate while remaining accessible to non-technical readers.

That’s why Data and Goliath is such an exciting book. On top of the ongoing avalanche of stories of cyberwarfare, data breaches and corporate snooping, the Snowden revelations have left many people confused and cynical about protecting their own privacy. Too many believe that nothing can be done to regain some of the privacy and power over our own lives that we have lost to ubiquitous mass surveillance. Worse, politics of fear have cowed citizens, congressmen and judges alike from claiming their important roles in oversight of national intelligence techniques and agencies.

Schneier’s book fights against all of this. He walks the reader through the big picture clearly and understandably, explaining how we got here, what we know (and still don't) and what it all means for our collective future. Schneier explains how data creation, collection, and analysis, by the government and by third parties, are ubiquitous features of modern life. More importantly, he puts this new reality into context by explaining what’s at stake, and offers solutions for government, corporations—and everyday people. Data and Goliath also pushes back on the hype about big data that we see on both the commercial and the governmental side—that it’s benign, inevitable, and uniformly positive.

It’s easy to feel daunted by the substantial threats to privacy and civil liberties that we are facing as a society. That’s exactly why Data and Goliath is so essential.  Knowledge is power. Armed with the knowledge Schneier shares in his book, anyone can join the conversation EFF and other advocates have been having, in the courts and elsewhere, about how to think seriously and honestly about our current digital surveillance state and more importantly, how to build a digital society run by the consent of the governed.

Related Issues: 

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Government "Clarifies" Its Stance on NSL Gag Orders Print
Written by Administrator   
Thursday, 05 March 2015 04:54

It seems the government doesn't know where it stands when it comes to national security letters (NSLs).

National security letters are the investigative tool that the FBI uses to obtain information from companies as part of national security-related investigations. NSLs never have to be reviewed by a judge before being issued, and they almost always include gag orders that prevent the recipient from discussing the NSL. If you've been following our national security letter cases, you know that the government had to retract a statement made before the Ninth Circuit that minimized the devastating effect of these gag orders. Unfortunately, it seems that wasn't the last time the government made a misleading statement about gag orders.

In its Signals Intelligence Reform 2015 Anniversary Report, the government proudly announced to the world:

"[T]he FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close." (emphasis added).

This might lead you to believe that the government's purported reforms were in place. Not so much. In a February 12 letter to the Ninth Circuit, unsealed yesterday, the government explained:

The FBI is in the process of formulating and drafting guidelines for the implementation of the policy described in the Report. Because this process is not yet complete, the potential applicability of the new policy to the NSLs at issue in the above-referenced appeals remains to be determined. We will advise the Court when this additional information becomes available.

The government should not be telling everyone that reforms are in place "now," when the truth is something different. 

Even if this new policy was actually implemented, it would not solve the deep constitutional problems with National Security Letters. To learn more about how NSLs work and why we're fighting them, check out our FAQ.

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A New Bill in Paraguay Would Destroy Online Privacy Print
Written by Administrator   
Thursday, 05 March 2015 02:16

Today, the Paraguayan House of Representatives postponed for eight days a mandatory data retention proposal. The bill, if passed, will require Paraguayan telecom providers to store highly personal information about their customers Internet use, for one year, for possible future access by law enforcement agencies.

The bill was introduced last year under the flimsy pretext that this measure is urgently needed to prevent crime. These weak, but repeated arguments are a tried and tested technique, fomenting a culture of fear of ceaseless war or terrorism, in order to justify arbitrary and totalitarian incursions on civil liberties. We've read about it in George Orwell's 1984, we've heard about it being practiced by oppressive regimes, and now we're witnessing it first-hand in a democratic country such as Paraguay.

Paraguayans have not taken this threat lying down. TEDIC, a Paraguayan digital rights organization, has launched a grassroots website called Pyrawebs to expose this threat and to mobilize ordinary Internet users to stop it. Internet users have been calling the bill Pyrawebs, alluding to the digital version of pyragues, informers who monitored the civilian population on behalf of ex-dictator, Alfredo Stroessner.

 Paraguayan Maricarmen Sequera, TEDIC Executive Director, raised her concerns, telling EFF: 

“We urge members to vote for the rejection of #Pyrawebs next Thursday. If the bill is left unaddressed in the next session, there will be a fictitious approval. In other words, it will be approved without debate”  

Jazmin Acuña, TEDIC project director, writing from the Paraguayan parliament told EFF:

"For us, today’s parliamentary results show commendable progress. Every day there are more of us who believe in, and fight for a truly free Internet.  We appreciate that today several deputies spoke in a form that is consistent with the principles of democracy, freedom and privacy, and have expressed their resounding rejection of #pyrawebs. We hope that the rest of the Parliamentary representatives vote against this bill in the next session”

From her Twitter account, congresswoman and human rights lawyer Olga Ferreira tweeted:

“What happened with the postponement is a small example of what determined people can achieve by pushing back against #pyrawebs”

She further tweeted:

“We have one week to campaign against #pyrawebs. Let’s make it worthwhile so [Congress] feels the pressure”.

TEDIC has developed a simple document explaining “10 Myths about Pyrawebs” that all parliamentarians should read.

We don't have long: there are only 8 days left before the mandatory data retention bill is approved or rejected, and if Paraguayans, TEDIC, and their allies can't convince enough politicians to defeat it before then, it will be another blow for online privacy that takes Paraguayans further down the path towards becoming a repressive surveillance state. Tweet #pyrawebs, contact @TEDICpy, and if you are Paraguayan, visit today to demand that your representative vote against this draconian bill.

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EFF Joins Civil Society and Computer Security Experts to Call for Rejection of Flawed Cybersecurity Legislation Print
Written by Administrator   
Wednesday, 04 March 2015 08:00

EFF has joined 26 civil society organizations and 22 computer security experts in a letter that calls on the Senate Select Committee on Intelligence to reject the Cybersecurity Information Sharing Act of 2015 (CISA).

CISA, currently only available in draft form, is yet another iteration of the infamous Cyber Intelligence Sharing and Protection Act (CISPA), first introduced in 2011. These pieces of legislation have all been introduced under the auspices of increased computer and network security. But instead of providing increased funding for security research, providing funding for security training for federal government employees, or any of the other ways computer and network security could be made better, they have focused on information sharing, without addressing the privacy and civil liberties implications that entails.

CISA is no different. It would grant companies more power to obtain “cyber threat indicators" and to disclose that data to the government without a warrant—hence its reputation as a “cyber-surveillance” bill. In fact, as the letter points out, CISA “requires real time dissemination to military and intelligence agencies, including the NSA.” In other words, cyberthreats shared with any agency would be automatically shared with the NSA.

Under CISA, all of this would happen without real privacy protections for Internet users. As the letter emphasizes:

CISA does not effectively require private entities to strip out information that identifies a specific person prior to sharing cyber threat indicators with the government, a fundamental and important privacy protection.

But CISA allows the shared information to be used for purposes that have nothing to do with cybersecurity, including “a wide range of crimes involving any level of physical force, including those that involve no threat of death or significant bodily harm,”  compounding the potential negative privacy impact.

CISA would also authorize companies to launch countermeasures against potentially innocent users—without requiring that companies are responsible for any harm they cause to innocent users:

countermeasures must be “operated on” one’s own information systems, but may have off-networks effects – including harmful effects to external systems – so long as the countermeasures do not “intentionally” destroy other entities’ systems. . . CISA permits companies to recklessly deploy countermeasures that damage networks belonging to innocent bystanders, such as a hospital or emergency responders that attackers use as proxies to hide behind, so long as the deploying company does not intend that the countermeasure result in harm.

To compound this provision, like its previous iterations, CISA contains overbroad immunity from lawsuits for corporations that share information or deploy countermeasures—effectively ensuring that they have little incentive to minimize these activities.

You can read the full text of the letter and see the signatories here. The SSCI is expected to mark up CISA soon. And while we’re hopeful that it will be defeated, CISA’s past iterations have faced several veto threats from President Obama, a petition with over 800,000 signatures, and a widespread online campaign dubbed "Stop Cyber Spying Week." That means we need your voice to defeat this version, too. Take action today: tell your Senator to oppose reintroduction of a bill that invades the privacy and civil liberties of everyday Internet users while failing to truly make the Internet safer.

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The STRONG Patents Act Is a Prime Example of Weak Reform Print
Written by Administrator   
Wednesday, 04 March 2015 03:47

"Reform" refers to making changes in something in order to improve it. The STRONG Patents Act, introduced yesterday by Sens. Coons, Durbin, and Hirono, claims to be a "reform" bill—in reality, it would achieve the exact opposite.

As we note in our recent whitepaper, Defend Innovation, we should primarily tackle the root problem of most patent issues: the abundance of poor quality patents. Important tools exist already to challenge bad patents, and these should be strengthened and made less expensive. The STRONG Patents Act's major "reform," however, cripples these means of limiting or scrapping patents that are poor quality.

First, it imposes standing requirements that would bar groups like EFF from challenging bad patents in the public interest. The bill states that you would only be able to challenge patents in an adversarial proceeding at the Patent Office (meaning you get to be there to argue back against what the patent owner says) if you have been sued or if you are "charged with infringement." A measure like this would have effectively stopped EFF from engaging in our Save Podcasting campaign against the patent troll Personal Audio. 

This is bad. EFF, through sites like Trolling Effects and those who reach out to us, is in an important position to notice when a bunch of startups and end users are receiving particularly egregious demand letters or suits. Although we can’t challenge every awful patent we see (we simply don’t have the resources), the STRONG Patents Act would prevent us from stepping in to meaningfully challenge any bad patent. The ability for public interest groups like us to do so is critical—patent owners could otherwise craft their demands to make it less worthwhile or feasible for any one accused party to challenge a patent. Affected individuals—podcasters, for example—simply don't have the resources to dispute the patents themselves.

On top of this change, the bill would make administrative challenges to patents more expensive by saddling challengers with costly discovery burdens. Sen. Coons' website claims that this is an attempt to "minimize abusive behavior," but the Patent Trial and Appeal Board already has authority to order discovery if there is a real basis to suspect abuse. The recently created post-grant review proceedings are an efficient and fair alternative to ruinously expensive district court litigation. The last thing we need is a law that undermines one of the few sensible parts of the patent system.

The STRONG Patents Act has a few positive provisions, such as helping clamp down on patent demand letters, but ultimately it is not the reform we need. In most regards, it's a step in the wrong direction. It ignores the biggest problems with the patent system today, namely the bad patents that have proliferated in recent years that are being abused by patent trolls. We need reform that addresses the worst actors and better levels the playing field—reform like the Innovation Act. Tell Congress to reject these fake fixes and to support the Innovation Act today.

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EFF to UN: You Need a Privacy Watchdog Print
Written by Administrator   
Tuesday, 03 March 2015 18:19

EFF joined more than sixty civil liberties organizations and public interest groups from across the world yesterday in calling upon the world's governments to support the creation of a United Nations Special Rapporteur on the right to privacy.

The special rapporteurs are independent experts appointed by the Human Rights Council and serve in their personal capacities. The establishment of a special rapporteur on the right to privacy is a key step that the United Nations can take to ensure that the right to privacy is given meaning and practical application in the light of technological developments. A special rapporteur would play a critical role in developing common understandings and furthering a considered and substantive interpretation of the right to privacy in a variety of settings.

The right to privacy is one of the few civil and political rights without specialist attention from a United Nations mandate holder. Privacy is an independent right, enshrined in a variety of international human rights treaties. There is a pressing need to better articulate the content of this right as part of international human rights law and produce guides on its interpretation, particularly as modern technologies are enabling communications surveillance—and consequent interference with this right—on an unprecedented and damaging scale.

The coalition letter states:

“The UN General Assembly resolution on the right to privacy in the digital age – adopted by consensus on 18 December 2014 - encourages the [Human Rights Council (HRC)] to consider the possibility of establishing a special procedure on the right to privacy. (...)

The UN General Assembly, the UN High Commissioner for Human Rights and existing special procedure mandate holders have all recognized the pressing need to provide continuous, systematic and authoritative guidance on the scope and content of the right to privacy as enshrined in article 12 of UDHR and article 17 of ICCPR. Significantly, all of them have identified the need to assess and monitor the ongoing implementation of this right.

The current lack of a dedicated thematic special procedure on the right to privacy hinders the capacity of the HRC to provide leadership in protecting and promoting this right (...). A Special Rapporteur on the right to privacy would fill this significant institutional gap and enable the HRC to take a leading role in identifying and clarifying principles, standards and best practices regarding the promotion and protection of the right to privacy.”

EFF and coalition partners have been calling for the establishment of a special rapporteur on the right to privacy for a while. We'll be keeping you informed on the discussions on the right to privacy being held by the U.N Human Rights Council in its 28th session in Geneva, which ends on March 27th.

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You Can't Block Apps on the Free and Open Brazilian Internet Print
Written by Administrator   
Monday, 02 March 2015 11:01

Brazil's Marco Civil law contains vigorous language intended to protect free expression, and a stable, secure and neutral network in Brazil. But as we have noted before, such laws must be interpreted and enforced appropriately to be effective. A good Internet law can quickly turn bad if incorrectly or improperly applied.

Last week, a Brazilian municipal judge sought to wield one part of the Marco Civil—its section on mandatory data retention—in a way we think undermines the rest of the law. Judge Luiz de Moura Correia of the Brazilian state of Piauí ordered Brazilian Internet and mobile connectivity providers to block access to the WhatsApp mobile-messaging application within 24 hours. The judge told journalists the injunction was intended to “compel the company that owns the app to assist with investigations by the state police.”

Correia's decision would have affected millions of innocent Brazilians who rely on WhatsApp as a messaging service. It would have served as a disturbing indication that in the pursuit of one aim of the Marco Civil, the courts can trample over the freedom of users to communicate online, and the freedom of the Net and the tools used to access it to remain uncensored.

Brazilian local courts have had a long history of issuing such broad and disruptive injunctions in their attempts to force Internet intermediaries to comply with state investigations or orders. Two examples have become especially well-known. In 2007, after YouTube failed to take down a clip of Brazilian supermodel Daniela Cicarelli, a São Paulo state court issued an order that led to the entire YouTube service being blocked by Brasil Telecom. In 2012, a Judge in Mato Grosso do Sul ordered a 24-hour suspension of Google and an arrest order for the head of Google Brasil after the company failed to remove videos critical of a mayoral candidate.

It was in this earlier atmosphere of random and disruptive court orders that the Marco Civil was born: an attempt to create a general and consistent set of principles under which the Brazilian Internet would be governed. The Marco Civil goes to great lengths to establish that Brazilian law should treat the Internet as a force for free expression, with the stability of the network and the protection of privacy as key "disciplines" of the new law.

Unfortunately, Judge Correia used the most freedom-unfriendly parts of the new law as the justification for his order. The Marco Civil includes a series of punishments that can be ordered against companies that do not comply with various regulations, including warnings, fines, service suspension and outright prohibition. Judge Correia's order selected the most severe of these sanctions, and interpreted it as authorizing censorship orders to ISPs.

The injunction against WhatsApp was halted on Thursday by an appeals court, the Piauí Court of Justice, which determined that the injunction was unreasonable because of the disproportionate effect of a suspension of service would have thousands of Brazilians unconnected with the local investigation.

As Paulo Rená, director of IBIDEM, activist and former manager of the Marco Civil consultation process, told EFF:

The measure itself lacks explicit or implicit support within the principles granted by the law, which ensures the social purpose of the Internet, the citizenship in digital media, the preservation of stability, security and network functionality, and the collective interest.

Legal experts Ronaldo Lemos and Celina Beatriz, both of the Insituto de Tecnologia e Sociedad do Rio (ITS Rio), also questioned the propriety of ordering ISPs to shut down access to a service, telling Brazilian press that the blocking of the service was not a remedy authorized by the law.

Moreover, Brazil has ratified the International Covenant on Civil and Political Rights as well as the Inter-American convention on human rights, which both protect free expression, and it can only be limited in very narrow cases and when necessary and proportionate.

Judges and lawmakers around the world continue to reach for censorship and mandatory blocking to enforce local law on a global Internet. It's a clumsy, disproportionate response that sacrifices the rights of millions and the promise of an uncensored Internet to exact the narrowest of concessions. Overturning the order sends the right signal about the Internet's future; but the fact that such injunctions can still be made in the first place, and users faced with censorship of foreign apps and services, even in the home of the Marco Civil, shows how far we have to go.

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