Oversight Report on FBI’s Use of Patriot Act Highlights Need for Intelligence Reform at Crucial Moment Print
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Friday, 22 May 2015 09:39

The Justice Department’s Office of the Inspector General (OIG) yesterday released another report on the Federal Bureau of Investigation’s use of Section 215 of the Patriot Act between 2007 and 2009. The report was long delayed due to declassification and redaction issues, but the timing is appropriate considering that the Senate is spending the waning hours of its legislative session considering the impending expiration of Section 215. 

That’s because the OIG report heightens the case for meaningful reform of the intelligence community by undermining many of the flimsy defenses offered by defenders of the status quo. Above all, the report demonstrates that secrecy and lack of oversight in the administration of surveillance laws is perhaps as significant as outright misuse.

Section 215 is most famously the authority that the National Security Agency claims allows it to conduct mass collection of Americans’ telephone records. A federal appeals court recently ruled that this interpretation was “unprecedented and unwarranted” and that the NSA’s program was illegal. However, the FBI is actually the agency that administers the law, presenting applications for the collection of information to the secretive Foreign Intelligence Surveillance Court (FISC) on behalf of NSA, as well as the FBI itself.

When the Patriot Act was reauthorized in 2005, Congress sought to address some concerns about Section 215 by mandating review by the OIG. The new report is the third to discuss the FBI’s use of Section 215, and it revisits some of the problems uncovered by the previous reports. Most egregiously, the FBI took seven years to obey a law intended to protect Americans’ privacy.  The 2005 reauthorization required the FBI to adopt particularized “minimization procedures” to limit the amount of private information retained and disseminated by the FBI under Section 215 by no later than March 2006. But the FBI didn’t do so until March 2013. During that time, of course, the FBI was continually assisting the NSA by filing applications for ongoing mass collection of telephone records, using an illegal interpretation of Section 215.

But the new report also shows that government’s unauthorized interpretation of the “relevance” provision in Section 215 wasn’t the only strained statutory reading of the law. During its seven years of foot-dragging over Section 215 minimization procedures, the FBI instead used a set of “Interim Procedures” that incorporated existing FBI National Security Investigations (NSI) Guidelines and “construed” them to meet the new requirements of the 2005 reauthorization. But “FBI agents were already required to comply with the NSI Guidelines in their entirety,” so “the Interim Procedures did not add any new requirements.” In other words, the FBI unilaterally decided it could meet a new duty imposed by Congress by declaring its preexisting duty was enough.

As bad as the FBI’s years-long failure to comply with the law are the failures of the FBI’s overseers. The OIG first noted the problems with the FBI’s Interim Procedures in its 2008 report, but not until 2009 did the FISC, the court charged with evaluating the FBI’s 215 applications, take notice and ask the FBI to explain. Given that it still took another four years for the FBI to adopt the final procedures and that the FISC uniformly continued approving 215 applications all the while, it’s not clear the FISC’s involvement mattered much.

Nor does the ultimate outcome of this story instill much confidence in the process. Even the final Section 215 minimization procedures from 2013 contain key language allowing retention of information “necessary to understand foreign intelligence.” As the report notes, this standard is undefined and is subject to open-ended interpretation by government lawyers, risking undermining the minimizations procedures’ privacy protections

As we’ve described at length, the FISC is hamstrung by its secrecy and the one-sided nature of its proceedings, something this report illustrates in detail. Moreover, the OIG itself had repeated difficulty obtaining certain information for its reports because the FBI claimed that it was not allowed to disclose this information for “oversight purposes.”

The new OIG report also has large swaths of information redacted from the public version, and some of these redactions are troubling for anyone who favors robust oversight. For example, the report discusses the use of Section 215 for bulk surveillance—a fact the government only officially acknowledged after Edward Snowden disclosed proof—but the only unredacted information in this section of the report concerns the NSA’s phone records program. Despite the redactions, it is clear that Section 215 is used for bulk collection of other records, something that has been previously reported. Other examples abound: the report notes that the FBI employs a “classified directive” to define the term “U.S. Person” and that the agency cannot definitively say what information counts as “metadata.” The withholding of this information from public scrutiny confounds true oversight, including any attempt to do an accounting of how many Americans are subject to surveillance under Section 215.

Public debate about surveillance reform and Section 215 has understandably focused on the NSA and the phone records program. The OIG report, however, is an excellent reminder of several key points as we continue to fight: 1) Our concerns about the NSA should not cause us to ignore the FBI’s role in illegal surveillance; 2) Section 215 is about much more than bulk collection of phone records; and 3) so long as the intelligence and law enforcement communities can easily hide behind “it’s classified,” true reform will be a long way off.

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Why Mitch McConnell Cannot Be Allowed to Decide the Fate of the Patriot Act Print
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Friday, 22 May 2015 07:55

Senate Majority Leader Mitch McConnell has made it clear this week that, while the Senate is rapidly approaching recess, the Senate “will stay in [session] until a deal is struck to extend” the Patriot Act. McConnell has also introduced legislation for both long-term and short-term reauthorization of the Patriot Act’s expiring provisions. It seems that McConnell is trying to bully the entire Senate into passing short-term reauthorization, giving him more time to further weaken reform efforts.

A look at McConnell’s history makes this unblinking support of unconstitutional surveillance less surprising. But what is impressive is his commitment to supporting untenable positions. He acts as if the Snowden leaks, which helped expose just how out of control NSA spying is, as well as the recent Second Circuit decision holding that the NSA’s telephone records program was unlawful, never happened. 

This was especially apparent today, when McConnell stood on the Senate floor and rattled off a litany of the exaggerated threats that NSA defenders have been relying on to scare Americans into submission: ISIL, Al Qaeda, Al Shabaab, safe havens in Syria for extremists, and safehouses in Yemen for terrorists. He wrapped it up with an all time greatest hits of NSA defenders, explaining why he thinks we need bulk collection (more on that below).

So what was McConnell saying pre-Snowden? An op-ed he wrote in support of Patriot Act reauthorization in 2007 shows that he hasn’t changed his tune at all in eight years. In fact, he practically could have been reading sections of the article as he stood on the Senate floor today to defend NSA spying. And earlier this month, he said, “This has been a very important part of our effort to defend the homeland since 9/11.” In 2011, after President Obama signed the most recent Patriot Act extension, he claimed that the Patriot Act has “ kept us safe for nearly a decade and Americans today should be relieved and reassured to know that these programs will continue.” That’s been his position all along, without regard to the what the rest of Americans (or the world, for that matter) think, after all they’ve learned about NSA overreach .

Here’s why, in his own words (which apparently are evergreen, no matter how much we find out about NSA spying abuses), McConnell is clearly the wrong person to be calling the shots when it comes to NSA reform:

McConnell: Intelligence officials tell us the Patriot Act is as valuable today as the day it was signed. They have given us real-world examples of its positive impact in discovering and disrupting terrorist plots overseas and at home.

While intelligence officials have certainly maintained that surveillance under the Patriot Act is valuable, we (and Mitch McConnell) know those claims are overblown, and sometimes simply false. Although surveillance under the Patriot Act has been shrouded in secrecy, because of Snowden’s leaks, claims about the efficacy of these programs have come under scrutiny. The specific contention that “54 attacks have been stopped” by bulk phone records collection has been thoroughly debunked. In fact, Sen. Patrick Leahy forced former NSA director Keith Alexander to admit that the “54 attacks” claim was inaccurate in front of Congress.

Independent studies from the President’s Review Group, the Privacy and Civil Liberties Oversight Board, and the New America Foundation have all made it clear: we don’t need bulk phone records collection.  

McConnell: After all, the best piece of evidence is the one that is most obvious and most important: not a single successful attack on U.S. soil since the morning we awoke to the danger and acted on it in our laws. 

While this may have been accurate in 2007, it is, unfortunately, not true now. The Boston Marathon bombing was a tragic example of a terrorist attack on U.S. soil. After the attack, there were questions about whether the FBI could have done more, but the FBI made it clear that there was nothing else it could have done. And while some have claimed that’s because of the legal limits on what the FBI can do (more on that below), Rep. Jim Sensenbrenner very sensibly pointed out that mass records collection can actually be detrimental: “It didn't stop the Boston Marathon Massacre. Sometimes too much information means that what you are looking for is actually a very small needle in a very large hay stack. You can be drowned in too much information.”

And while the Boston Marathon bombing got a justifiably significant amount of media attention, there’s also an epidemic of domestic terrorism against American Muslims that’s getting little attention. In particular, the arson of mosques has become more and more widespread. This kind of terrorism isn't what Section 215 of the Patriot Act was aimed at addressing. But domestic terrorism was a significant focus of other provisions of the law. Yet these crimes are never talked about in the same breath as the Patriot Act—and that’s not only because terrorism against Muslims is low on the media and government’s list of concerns. It’s also because hate crimes against Muslims have dramatically increased since the passage of the Patriot Act, not decreased. There’s no official government estimate of how many of these qualify as terrorism. But under the definition from Section 802 of the Patriot Act itself, nearly any hate crime would qualify.[1] This epidemic of terrorism simply doesn’t fit into the contrived narrative of why we need the Patriot Act. But since these are terrorist attacks against Americans, McConnell might want to focus on this blatant homeland security failure, instead of trying to reauthorize a program of limited usefulness.

McConnell: [The provisions in the Patriot Act] removed bureaucratic barriers that had kept intelligence officials and criminal investigators from sharing information, a simple but major shift that FBI director Robert Mueller has credited with "significantly alter[ing] the landscape for conducting terrorism investigations.”

The oft-repeated claim that had the Patriot Act been in place before 9/11, the NSA would have been able to stop the attack is simply false. According to a 2004 report from the 9/11 Commission, authored by Senior Counsel Barbara Grewe, which the government did not declassify until five years after it was written:

The information sharing failures in the summer of 2001 were not the result of legal barriers but of the failure of individuals to understand that the barriers did not apply to the facts at hand. Simply put, there was no legal reason why the information could not have been shared.

These problems still persist. According to the Government Accountability Office website, as of 2015 “The sharing of terrorism-related information has been designated as high risk [for fraud, waste, and abuse, or mismanagement] because the government faces formidable challenges in analyzing and disseminating this information in a timely, accurate, and useful manner.”

McConnell:Indeed, alarmist concerns notwithstanding, the Patriot Act is one of the most important and overdue pieces of legislation in a generation. My guess is that most Americans were more alarmed to discover that arcane laws once hobbled intelligence agents from tracing terrorist phone calls than they are by the streamlined practice of it now.

McConnell was certainly right when he said the Patriot Act is one of the most important pieces of legislation in a generation. But that’s not because of the reasons he may have thought. It’s one of the most important pieces of legislation in a generation because it is under the guise of the Patriot Act that the NSA has committed some of the most blatantly unconstitutional surveillance this country has ever grappled with.

And he’s also wrong about how Americans feel about surveillance. A recent study by Global Strategy Group (commissioned by ACLU) found:

By nearly a 2:1 margin (60%  modify, 34%  preserve), Americans  believe the  Patriot Act should not  be  reauthorized in its current  form. With broad, bipartisan support across all ages, ideologies and political parties, voters are rejecting  the  argument that the Patriot Act should be preserved with no changes because of potential terrorist threats. 

What’s more, the 2004 Grewe report made it clear that it was actually a severe lack of understanding of what McConnell is calling “arcane laws,”—in particular Foreign Intelligence Surveillance Act [FISA]—that led to intelligence failures. Agents missed information-sharing opportunities because of an “overabundance of caution” on the sharing of information by the NSA, as well as a failure to use all the tools available. For instance, the FBI knew it had reason to be concerned about would-be 9/11 hijacker Zacarias Moussaoui. But because they had considered starting an investigation that might require a FISA warrant, when it came to using a criminal warrant to get the information they needed “they just did not think about that option at the time.”  

When it came to sharing information about the movements of hijacker Khalid al-Mihdhar, the report explains: “everyone was confused about the rules governing the sharing and use of information gathered in intelligence channels.” What’s more, in the years, months, and days before 9/11, the NSA already had access to a massive database of Americans’ call records. Analysts—at NSA or CIA—could have easily searched the database for calls made from the U.S. to the safehouse in Yemen. They simply didn't.

What should be most alarming to Americans is the level of incompetence that these failures, which could have possibly prevented the tragedy of 9/11, demonstrate. Yet these same intelligence agencies continue to conduct invasive, overbroad surveillance and ask for ever more authority—without ever really addressing the problems that led to their massive failure in 2001.

McConnell: If there is one lesson from Sept. 11 that we should have learned by now, it is that the people who protect us from terrorism should have more, not fewer, tools to do their jobs. The Patriot Act and FISA are among the most valuable. It is time we acknowledged as much.

Senator McConnell’s bald-faced use of the tragedy of 9/11 as an excuse for surveillance programs that trample on the Constitution is as repugnant now as it was then. EFF has always thought that bulk collection was unconstitutional—that’s why we’ve been suing the NSA since 2008, years before the first Snowden leak. And now, unlike then, the truth has been very clearly demonstrated. Of course, it’s not because the government decided to come clean. We know the truth because of those leaks and because of all the transparency work being done by privacy advocates. Quality over quantity must be the rule for surveillance tools. The people who protect us from terrorism should have tools that actually work, while maintaining the privacy and civil rights of all Americans. If you agree, call Congress now and let them know.






[1] "Domestic terrorism" means activities with the following three characteristics:

  • Involve acts dangerous to human life that violate federal or state law;
  • Appear intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination. or kidnapping; and
  • Occur primarily within the territorial jurisdiction of the U.S.


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The Unexpected Policy Laundering Implications of the Garcia v. Google Dissent Print
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Friday, 22 May 2015 06:13

The Ninth Circuit Court of Appeals this week sensibly, if belatedly, reversed its mistaken order requiring Google to take down a controversial video based on a specious copyright claim. But there’s more to this story than the free speech win. Unfortunately, Judge Alex Kozinski's dissent points to an alarming policy laundering trend in its reliance on the Beijing Treaty for Audiovisual Performances, a deeply problematic international agreement that the United States has signed but not yet ratified.

Two major factors make Judge Kozinski's dependence on the Beijing Treaty a stretch. For one, the Treaty doesn't even go into effect until 24 more countries ratify it. For another, he cites specifically to the Patent and Trademark Office Fact Sheet—and as the majority notes, that agency "lacks legal authority to interpret and administer the Copyright Act."

All of that said, the really troubling part about Judge Kozinski's Beijing Treaty citation is that it may herald a new and particularly pernicious form of policy laundering.

The scholar Margot Kaminski explained how that might be the case earlier this year, after Judge Kozinski mentioned the Beijing Treaty during Garcia oral arguments. The concerns she outlined then are even more resonant now:

Policy laundering—the idea that policy makers can use international law to make legal changes domestically—is familiar to IP attorneys. But such laundering has occurred in the past when Congress used new international obligations as justification for altering domestic law. Judge Kozinski’s thinking … would create a new, sleeker, opportunity for policy laundering, one in which Congress is almost entirely uninvolved.

Supporters of secretive agreements like the Trans-Pacific Partnership (TPP) argue that they don't require a change to U.S. law. Because new policies won't end up getting laundered in, they claim, transparency is less important.

Judge Kozinski's argument demonstrates the problem with that reasoning. Even if you take negotiators' word that they're hewing close to U.S. law, they're still engaging in what Kaminski has elsewhere dubbed “regulatory paraphrasing”: because they're not transcribing U.S. law verbatim, they're necessarily making interpretations. Those interpretations can make non-obvious but important changes, like transforming a standard into a rule, or vice-versa.

Ambiguities in the law, which should properly be interpreted by judges, end up getting settled by negotiators and the corporate lobbyists that influence them. When judges cite these interpretations, it can close the policy laundering loop, crystallizing policy made through an inappropriate (and often secretive) legal process. We saw hints of it from the Solicitor General in the Aereo Supreme Court argument, and we see it too with legislators who bring up possible conflicts with international agreements as an argument against domestic reform.

Judge Kozinski has written compelling and impressive dissents before—the 1993 White v. Samsung is a classic in the genre. Unfortunately, in Garcia he missed the mark. We’re glad the majority rejected arguments and chose instead to support traditional copyright principles.

Related Cases: 

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Victory: Photo Hobbyist Prevails Over Junk-Patent Bully Print
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Written by Administrator   
Friday, 22 May 2015 03:12
Garfum Abandons Case Against ‘Vote-For-Your-Favorite’ Online Competitions

Camden, New Jersey – Patent bully Garfum has abandoned its lawsuit against an online photo hobbyist, just one day after a federal judge set the date for a face-off in court against lawyers for the Electronic Frontier Foundation (EFF).

EFF together with Durie Tangri LLP represent, which has hosted user-submitted photos and run competitions for the best since 2003. In 2007, a company called applied for a patent on the “Method of Sharing Multi-Media Content Among Users in a Global Computer Network.” The patent takes the well-known concept of a competition by popular vote and applies it to the modern context of generic computer networks, and Garfum claims that it covers the rights to online competitions on social networks where users vote for the winner—despite the fact that courts have ruled that this kind of abstract idea using generic computer technology cannot be patented.

Garfum used this patent to accuse EFF’s client of infringement, filing a federal lawsuit without warning. EFF moved to dismiss the complaint earlier this year, arguing that the junk patent should be declared invalid. But after all the briefing had been completed and just one day after the court scheduled a hearing on the motion to dismiss, Garfum capitulated: it dropped its case with a promise not to sue again rather than defend its patent before a judge.

“We’re pleased that Garfum has abandoned its claims against our client. But it’s a travesty that this case was ever filed in the first place,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “Our client began running online ‘favorite photo’ competitions years before this patent was filed. The idea that you could patent this abstract idea, find innocent enthusiasts online and demand settlement money—and then slink away once challenged and before the court issues a ruling—goes against any sense of fair play.”

“Patent bullies count on not having to defend their weak patents in a court of law. They drive up costs with baseless lawsuits and then bow out before getting a decision they don’t like,” said EFF Staff Attorney Vera Ranieri. “So while we are glad our client doesn’t have to worry about Garfum anymore, there’s still a lot of work to do the fight against bad patents.”

Joe Gratz of the law firm Durie Tangri LLP and Frank Corrado of Barry, Corrado & Grassi, PC are co-counsel with EFF.

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Daniel Nazer
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California Attorney General Locks Down Wiretap and Other Criminal Justice Data Print
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Friday, 22 May 2015 01:55

The California Attorney General's office is required every year to compile details on each state-level wiretap order filed by local prosecutors. 

Mandated by the legislature as a transparency measure in the highly secret process of electronic surveillance, the annual California Electronic Interceptions Report is a wellspring of information for criminal justice research. But this year, the California Department of Justice (CADOJ) says that, from here on out, this report—and in fact potentially all of its criminal justice data—will only be issued as locked PDFs, significantly limiting the public’s ability to analyze the information in alternative formats.

California Attorney General Kamala Harris' new policy is a slap in the face to transparency and is a step in the opposite direction of the nationwide trend to embrace open data.

The 2014 California Electronic Interceptions Report, released last month, clocks in at 168 pages, with data on electronic surveillance from around the state presented in a series of complex tables, some spanning more than 30 pages. For each wiretap, the document outlines how many people were affected, how many communications were intercepted, the costs of the surveillance, and the number of arrests and the amount of property and drug seized as a result of the investigation. 

Download ZIP file of the California Electronic Interceptions Report PDF files 2009 - 2014. 

Download ZIP file of California Electronic Interceptions Report DOC files 2009 - 2013. 

Among the highlights:

  • California law enforcement agencies filed 971 wiretap applications in 2014, a increase of more than 44 percent compared to 2013. 
  • Wiretap orders led to approximately 480 arrests, the largest portion of which were drug related. Only 41 people were convicted in 2014 as a result of that surveillance.
  • Riverside County remains the leader in wiretaps in the state, with 624 orders filed in 2014. That’s far more than every other reporting county combined. That’s also more than four times the number of wiretaps applied for by Los Angeles County, the state’s most populous county.
  • Wiretaps in California in 2014 cost a total of $31 million, of which $28 million was spent on personnel and $3.1 was spent on equipment, supplies, and installation fees. This represents a 17% increase over 2013.
  • 35 counties, including San Francisco, San Mateo, and Santa Cruz, reported filing no wiretap applications at all.

This information can be spotted with the naked eye, but much more information would be available if the researchers could analyze the data in a machine-readable format.

CADOJ offers little explanation regarding the massive expansion of wiretaps in the state, providing only a single page of cheerleading for all the drug trafficking seizures and arrests reported by law enforcement. In this introduction to the report, CADOJ staff recommends that the sprawling tables “should be read in conjunction with one another to evaluate the impact intercepts have on public safety.” However, the department's decision to published the document as a locked PDF impedes researchers’ ability to conduct exactly this type of impact analysis.

Last year, when EFF filed a California Public Records Request for the raw electronic interceptions data, CADOJ anticipated it would be extremely time-consuming to export. Instead, EFF and CADOJ agreed on an expedient compromise: it would provide EFF with the Microsoft Word document version of the reports, from which it would be much easier for to extract the data.

This year, we filed a CPRA request with the CADOJ requesting the data on the same terms. No deal, they said:

… our Office has changed its security protocol regarding reports and other documents that are made available electronically to members of the public on our public web site. Now, all such reports and documents appearing on our public website are only made available to members of the public in a locked PDF format. We have made this change in order to better protect the security and integrity of the data in our public records.

This new policy position will have significant ramifications for public access to criminal justice data across the board. The position also sets a precedent for local law enforcement around the state to make it more difficult for the public to access data.

It is also wrong as matter of law. In California, state agencies are required to produce records in “any electronic format in which it holds the information.” But the CADOJ is citing a section of the law that says agencies don’t have to hand over records in electronic format that would “jeopardize or compromise the security or integrity of the original record.”

We formally asked CADOJ to explain how, exactly, providing either a Word document, spreadsheet, or other data file jeopardizes the security or integrity of the data any more than publishing a PDF. After all, a PDF can be as easily doctored as any other file.

A month later, CADOJ has yet to respond.

Right now, it would take significant expertise to scrape all the data from the electronic intercept reports from a PDF while maintaining the accuracy of the information. When we asked Steven Rich, database editor for investigations at the Washington Postfor his evaluation, he wrote back: 

It's possible to get the data out of the PDF but it's an amazing amount of work to get it in a usable form. This is an insanely difficult format, given that the file, based on the metadata, came out of Word. The only format worse than a PDF in this case is a scanned PDF.

If the California Attorney General were to release the data openly, it would provide the public with a variety of ways to view how wiretaps are conducted in California. For example, the public could learn:

  • in aggregate, the number of people whose communications were intercepted across the state;
  • in aggregate, the number of communications that were intercepted across the state;
  • the total percentage of communications that were actually incriminating, versus communications that were irrelevant;
  • the number of wiretaps in which the agency did not provide any information required by law; and
  • trends in how wiretap use compares year over year, county by county.

Open data would also allow for outside researchers and organizers to create interactive systems for searching and analyzing the data, which could uncover many more interesting trends and anomalies and create new opportunities for public oversight of the criminal justice system. 

The California Attorney General’s office ought to rethink its policies immediately. The state legislature is currently considering new data collection powers for CADOJ regarding issues such as racial profiling and police use of force—most of which declare from the get-go that these records should be public.

Rather than worry about the integrity of the data, CADOJ should be worrying about its own integrity when it come to transparency in California’s criminal justice system.

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La Regulación de Inteligencia en Colombia Se Raja en los Derechos Humanos Print
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Thursday, 21 May 2015 12:34

En la actualidad, cada vez los Estados cuentan con más medios tecnológicos para vigilar las comunicaciones de las personas debido a los constantes avances tecnológicos. Ahora más que nunca, los Estados cuentan con una mayor capacidad para realizar vigilancia simultánea, pasiva, invasiva y de larga escala. Esto plantea un riesgo para distintos derechos reconocidos en las constituciones de los Estados y en tratados internacionales de Derechos Humanos ratificados por ellos.

Así inicia el informe “Vigilancia de las comunicaciones por la autoridad y protección de los derechos fundamentales en Colombia” elaborado por Katitza Rodríguez, directora internacional de derechos humanos de la Electronic Frontier Foundation (EFF) y el abogado colombiano Juan Camilo Rivera, quienes señalan como la regulación de inteligencia en Colombia se está rajando en el tema de Derechos Humanos.

El informe es el resultado de una investigación realizada por la Electronic Frontier Foundation, la Comisión Colombiana de Juristas, y la Fundación Karisma. En el análisis que ofrece el informe, se establece cómo en Colombia no hay suficientes garantías legales ni suficiente transparencia gubernamental que permitan proteger los derechos fundamentales en el ejercicio de actividades de vigilancia estatal.

El documento hace parte de una iniciativa global liderada por 350 organizaciones de la sociedad civil, que fue originalmente materializada en los 13 Principios Internacionales sobre la aplicación de los Derechos Humanos a la vigilancia de las comunicaciones, el cual ha sido citado en el último informe de la Comisionada de Derechos Humanos de Naciones Unidas sobre la privacidad en la era digital y el informe de privacidad de la relatora de libertad de expresión de la Comisión Interamericana de Derechos Humanos.

Durante la elaboración del informe, Rodríguez de EFF dejó en claro que es el momento de que los Estados cumplan las obligaciones internacionales de Derechos Humanos cuando conducen actividades de vigilancia, así como recomendaciones que para que autoridades las tomen en cuenta a fin de que la vigilancia masiva y descontrolada no tenga cabida. 

Mateo Gómez, de la Comisión Colombiana de Juristas, sobre las recomendaciones del informe:

“Urgen a las instancias de control de las actividades de inteligencia y contrainteligencia del Congreso colombiano, no solo a que verifiquen que labores de vigilancia persigan fines legítimos, sino a que además se corrobore que estas sean necesarias, idóneas y proporcionales.”

El documento hace una descripción de la forma cómo se afectan los derechos fundamentales en Colombia, cuando los operadores de servicios de telecomunicaciones tales como Claro, Telefónica o ETB, son obligados por ley a retener datos de sus usuarios por un período mínimo de 5 años. Un plazo exagerado desde todo punto de vista, si se considera que la Corte Europea de Justicia (CEJ) de la Unión Europea declaró inválida la directiva que establecía la obligación de retener datos por un mínimo de 6 meses y un máximo de 2 años.

El informe hace un llamado para garantías legales frente a la vigilancia masiva, teniendo en cuenta escándalos recientes en Colombia:

“Los cambios que se hicieron después de las chuzadas del DAS no evitaron los cuestionamientos a PUMA, ni nos permitieron saber qué pasó realmente en Andrómeda. Eso sí, demostraron que la seguridad nacional se persigue con una exacerbada vigilancia llena de cámaras de seguridad, información biométrica, monitoreo de comunicaciones y recopilación de datos para saberlo todo de todos, sin contrapesos.”

La socialización de este trabajo se realizará ante las principales instituciones públicas que tienen a su cargo la regulación, ejercicio o control de la vigilancia de las comunicaciones el 22 de mayo.

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Federal Anti-SLAPP Bill Introduced in the House Print
Written by Administrator   
Thursday, 21 May 2015 10:43

A bipartisan group of representatives, including Reps. Blake Farenthold (R-TX) and Anna Eshoo (D-CA), recently introduced the SPEAK FREE Act of 2015, a bill that would help protect victims of Strategic Lawsuits Against Public Participation, also known as SLAPPs.

Plaintiffs who bring SLAPPS are not primarily interested in winning the lawsuits. Instead, their goal is to harass, intimidate, and ultimately silence critics through the drama, cost and time-consuming nature of litigation. Anti-SLAPP laws provide defendants with a procedural mechanism to quickly dismiss the case and, often, to obtain attorneys fees, thereby creating a disincentive for plaintiffs to file harassing lawsuits that target speech.

EFF has followed for a long time the problem of SLAPPs in the online space, including against speakers who wish to remain anonymous. There are all kinds of SLAPPs brought against all kinds of defendants. In one case, EFF defended the creator of the online comic The Oatmeal after he was sued for defamation for criticizing the rival humor website FunnyJunk.

The most significant aspect of the SPEAK FREE Act is the breadth of its applicability. The bill would authorize the transfer of cases originally brought in state court to federal court. This “removal” authority would be beneficial to defendants who are sued in state court in the 22 states that do not have an anti-SLAPP law, as well as in states with weaker anti-SLAPP laws. Authorizing the removal of cases to federal court would be a powerful means of enabling SLAPP defendants to invoke the federal procedural defense created by the SPEAK FREE Act.

A federal anti-SLAPP law would also significantly advance the free speech interests of defendants originally sued in federal court. A federal anti-SLAPP law is needed because state anti-SLAPP laws do not apply to cases in federal court based on federal law. For cases in federal court that include some or all state law claims, there is a split in precedent: the DC Circuit, for example, said that DC’s local anti-SLAPP law cannot be applied to cases in federal court that are based on state law; whereas, other circuits have said that state anti-SLAPP laws can be applied to state claims in federal court cases. A federal anti-SLAPP law would apply to all relevant cases filed in (or removed to) federal court.

Once a case is in federal court, the SPEAK FREE Act would allow a SLAPP defendant to quickly end the case by filing a special motion to dismiss. Importantly, the bill would also provide protection for a SLAPP defendant who wishes to remain anonymous by authorizing the filing of a motion to quash a plaintiff’s request for the defendant’s personally identifying information (such a request is usually sent to an online service provider).

In the special motion to dismiss, the defendant would have to make “a prima facie showing that the claim at issue arises from an oral or written statement or other expression by the defendant that was made in connection with an official proceeding or about a matter of public concern.”

A “matter of public concern” is broadly defined as an issue related to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace. The intent is to protect a wide variety of speakers, including online reviewers who find themselves as defendants in the typical modern SLAPP.

In order to overcome the motion to dismiss and enable the case to move forward, the plaintiff would have to demonstrate that “the claim is likely to succeed on the merits.”

The judge would be able to consider the “pleadings and affidavits stating the facts on which the liability or defense is based,” similar to the summary judgment standard in federal court. The judge would also be permitted to order targeted discovery if needed to decide the motion to dismiss, but full discovery would be paused (“stayed”) during the consideration of the motion.

If the defendant wins the special motion to dismiss, the judge would be required to dismiss the case with prejudice (the plaintiff cannot file the case again) and award the defendant reasonable attorneys fees, litigation costs, and expert witness fees. However, if the defendant loses the motion and the judge finds that it was “frivolous” or was “solely intended to cause unnecessary delay,” the judge would have to award reasonable attorneys fees, litigation costs, and expert witness fees to the plaintiff.

The judge would be required to rule on the special motion to dismiss within 30 days of the motion being briefed or argued. The idea is to force a speedy resolution when a case implicates free speech interests. The party that loses the motion would be permitted to immediately appeal the decision.

The bill includes some exceptions where a defendant would not be permitted to file a special motion to dismiss the case: when the plaintiff brings a claim in the public interest; when the plaintiff is the government in an enforcement action; and when the defendant is a business being sued for speech about its product or service or that of a competitor (such as false advertising).

A federal anti-SLAPP law would be an important addition to existing constitutional and statutory law that protects free speech online, including the Supreme Court’s creation of the higher actual malice standard under the First Amendment for allegations of defamation of public officials and public figures; courts’ application of the First Amendment to protect anonymous speakers; and Section 230, which largely protects Internet intermediaries from being held liable for illegal content posted by their users.

EFF applauds the bipartisan effort of the representatives who introduced the SPEAK FREE Act. We hope Congress will quickly act on this important legislation.

Disclosure: I am on the board of directors of the Public Participation Project, which advocates for a federal anti-SLAPP law.

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Africa's Worst New Internet Censorship Law Could be Coming to South Africa Print
Written by Administrator   
Thursday, 21 May 2015 00:18

Only once in a while does an Internet censorship law or regulation come along that is so audacious in its scope, so misguided in its premises, and so poorly thought out in its execution, that you have to check your calendar to make sure April 1 hasn't come around again. The Draft Online Regulation Policy recently issued by the Film and Publication Board (FPB) of South Africa is such a regulation. It's as if the fabled prude Mrs. Grundy had been brought forward from the 18th century, stumbled across on her first excursion online, and promptly cobbled together a law to shut the Internet down. Yes, it's that bad.

But don't just take our word for it—read some of its provisions for yourself. First, the regulation applies, in the first instance, to films and games (regardless of subject matter), as well as to publications containing certain loosely-described forms of sex, violence and hate speech. As to these types of content:

5.1.1 Any person who intends to distribute any film, game, or certain publication in the Republic of South Africa shall first comply with section 18(1) of the Act by applying, in the prescribed manner, for registration as film or game and publications distributor.

5.1.2 In the event that such film, game or publication is in a digital form or format intended for distribution online using the internet or other mobile platforms, the distributor may bring an application to the Board for the conclusion of an online distribution agreement, in terms of which the distributor, upon payment of the fee prescribed from time to time by the Minister of DOC as the Executive Authority, may classify its online content on behalf of the Board, using the Board's classification Guidelines and the Act …

If you are a video blogger creating films from your basement, the prospect of FPB officers knocking on your door to classify your videos probably isn't that appealing. So, being the forward-thinkers that they are, without actually providing an exception for user-generated content (or a sensible definition of it), the FPB provides an alternative system which places the burden of classifying such content onto Internet intermediaries:

7.5 In the event that such content is a video clip on YouTube or any other global digital media platform, the Board may of its own accord refer such video clip to the Classification Committee of the Board for classification.

7.7 Upon classification, the Board shall dispatch a copy of the classification decision and an invoice payable by the online distributor within 30 days, in respect of the classification of the content in question.

A few definitions are in order here: an “online distributor” could be a South African ISP, which might have no connection with the “global digital media platform” that actually hosts the content. Nonetheless, the ISP is assumed to have the capacity to take down the original video, and to upload a new, classified, version containing the FPB's logo:

7.10 The online distributor shall, from the date of being notified by the Board in writing of the classification decision, take down the unclassified video clip, substitute the same with the one that has been classified by the Board, and display the Film and Publication Board Logo and classification decision as illustrated in clause 5.1.6.

Oh, but it gets worse. Since classification rules already apply to offline films, games and proscribed publications, the regulation purports to be doing nothing more than to be extending the classification scheme to online versions of those materials, so that anyone distributing them over the Internet also has to obtain a license to do so. But then there's this:

7.4 With regard to any other content distributed online, the Board shall have the power to order an administrator of any online platform to take down any content that the Board may deem to be potentially harmful and disturbing to children of certain ages.

That's right, any online platform can be ordered to take down any content distributed online that the Board may deem to be potentially harmful and disturbing. Traditional publishers are subject to no such sweeping, extrajudicial censorship power.

What kind of content might we be talking about here? Much of the preamble of the document talks about sex. Indeed, sex sells, and it sells censorship legislation as well as it sells cigarettes and soft drinks. However the regulation, even on its face, goes much further. Its background section gives an example of non-sexual videos that, even under the current law, were issued a classification by the FPB—videos depicting a Pretorian pastor “ordering members of his congregation, some of whom were minors, to graze like cattle and drink petrol to prove that humans can eat anything provided by God”. Under the new proposed regulation, the FPB could simply order such videos—which are obviously newsworthy—to be removed from the Internet.

“Draconian” is a word that we use quite often on Deeplinks, but by any standard of draconian, this proposed regulation is it. It bears all the hallmarks of being the response to a wish-list from a single, puritanical special interest group, without taking the other broader free speech rights of the public into account.

Thankfully, section 195 of the South African Constitution does direct the public administration that “People's needs must be responded to, and the public must be encouraged to participate in policy-making”, and in accordance with this directive, the proposed Draft Online Regulation Policy has been opened for public comment, which remains open until July 15. Local groups like Right to Know have already been mobilizing against the proposal, and are collecting supporters for a petition and social media campaign, which EFF heartily endorses.

South Africa is one of Africa's largest and fastest growing economies, and for it to adopt such an extreme preemptive Internet censorship regulation would be a serious setback for South Africa's burgeoning online industry, as well as, needless to say, a serious blow to human rights. If you are South African, or have any friends or colleagues who are, please take action by signing the Right to Know petition, and spreading the word about this looming threat.

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