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Is This Justice? Charging an Eight Grader with a Felony for “Hacking” Print
Written by Administrator   
Friday, 17 April 2015 03:24

A 14-year-old eighth grader in Florida, Domanik Green, has been charged with a felony for “hacking” his teacher’s computer. The “hacking” in this instance was using a widely known password to change the desktop background of his teacher’s computer with an image of two men kissing. The outrage of being charged with a felony for what essentially amounts to a misguided prank should be familiar to those who follow how computer crimes are handled by our justice system.

Usually, when it comes to bad laws related to computer hacking, or unauthorized access, the focus is the federal Computer Fraud and Abuse Act (CFAA). However, this instance highlights that many states have their own version of the federal statute, with their own overbroad and insensible language, including Florida.

In fact, the Florida statute is even harsher than the CFAA. A lowest level offense under CFAA (1030(c)(2)(A)) is a misdemeanor, but in Florida, the lowest level offense (815.06(2)(A)) is a felony. Furthermore, the Florida statue also neglects to define what “authorized” or “unauthorized” means, and under these facts a reasonable person may think they are authorized if the passwords had been widely used by students.

In explaining why felony charges were brought against the teenager, Pasco County Sheriff Chris Nocco stated:

Even though some might say this is just a teenage prank, who knows what this teenager might have done...

The teacher’s computer reportedly had sensitive encrypted information related to the Florida Comprehensive Assessment Test (FCAT). However, the school and the sheriff have admitted that they found no evidence that the student tampered with or even intended to tamper with those files. Additionally, it has been reported that the school had terrible operational security where weak passwords, teachers entering passwords in front of students, and students regularly using teacher credentials, was prevalent. This further highlights the complications of using a statue to prosecute crimes that does not clearly define what it aims to criminalize.

Undeterred, the Sheriff goes on to say:

If information comes back to us and we get evidence (that other kids have done it), they're going to face the same consequences…

The arbitrary practice of how computer crime laws are applied is not just an exclusive feature of federal prosecutorial discretion, but local law enforcement also engages in such behavior. The idea of giving prosecutors and police discretion on charging decisions is generally seen as a good thing, but the plight of Domanik Green shows otherwise. The aggressive use of discretion here could have long-lasting consequences for a 14-year old child who will deal with the consequences of a felony­­—difficult job prospects, loss of voting rights, inability to carry a firearm, etc.—for a juvenile prank.

Charging decisions and punishment should be proportional to the harm a person causes. The only thing that “making an example” out of Domanik Green accomplishes is to make an example of how out of whack our computer crime laws—and the prosecutorial discretion that accompanies it—are. We call on Pasco County to do the sensible thing and not ruin Domanik Green’s life. This is not justice.


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EFF's Podcasting Patent Win Highlights a Disturbing Trend Print
Written by Administrator   
Friday, 17 April 2015 01:54

It's time to take a closer look at EFF's recent victory against bogus patents and highlight what we and others concerned about our patent system are up against. The United States Patent and Trademark Office (USPTO), acting on our request for review, last week invalidated claims from a patent Personal Audio LLC was using to assert that it invented podcasting.  At stake was the right of bloggers, podcasters, and broadcasters to air content, including popular shows like "This American Life"  and "Stuff You Should Know," online and operate their websites free of costly "settle or we’ll sue" threats from Personal Audio. The USPTO's decision works to stop the self-described "holding company" from using these patent claims to go after more companies, after previously targeting comedian and podcaster Adam Corolla, CBS, and others with patent lawsuits.

Personal Audio claimed that it invented the process of updating a website regularly with new, related content creating a series or episodes—basically podcasting—in 1996. EFF proved to the USPTO that claiming ownership over this process was preposterous—putting a series of shows online for everyone to enjoy had been around since at least 1993. Early examples include Internet pioneer Carl Malamud’s "Geek of the Week," although the USPTO relied on publications discussing the work of the Canadian Broadcasting Corporation (CBC) and CNN’s online news program.

Personal Audio’s patent is part of a disturbing trend involving claims of invention and ownership over obvious processes lacking the kind of innovation for which the patent system was created to nurture and protect. We’re seeing entities claiming they invented all types of technologies that are nothing more than a formerly paper-based task making the natural progression to the digital world.  These ''inventions'' include things like the screen that asks users ''are you sure'' before paying bills online. That patent’s claims, asserted by Joao Bock Transactions Systems, are written in vague terms describing a ''processing device'' that ''processes information regarding a banking transaction'' and ''generates a signal containing information for authorizing or disallowing the transaction.''

The Personal Audio patent we challenged described an ''apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available.'' The company’s lawyer sought to convince the USPTO that CNN’s online news show wasn’t an example of  invalidating ''prior art''—patent lingo for the same or pretty much the same invention—because the CNN broadcasts were about different things,  such as saving whales one day and bad weather in California on the next. This, Personal Audio argued, meant that CNN didn’t show a system with episodes. Sound like a stretch? Here’s how USPTO Administrative Patent Judge Trenton Ward reacted to that reasoning at the December oral arguments hearing in our case: ''So are you saying an episode indicates a series that must be watched in a specific order?'' he asked Personal Audio attorney Michael Femal. ''You can watch them out of order if you would like to, Your Honor, but there is a given order to episodes,'' Femal said. Even a show like Twilight Zone isn’t episodic because each program tells a different story, Femal continued, to which Ward responded, ''Twilight Zone, no episodes in Twilight Zone?''

The judge may have felt he was entering the Twilight Zone as Femal then went on to argue that the earliest podcasters didn’t explain they were using servers to put their content online, and since the patent distinguishes that podcasting involves servers, that meant it invented podcasting first. CNN described its system as an internet newsroom ''accessed via the World Wide Web,'' Ward told Femal. ''It is your argument that a person of skill in the art reading that would not understand that that would require a server..?'' Ward asked. (A ''person of skill'' is patent lingo for someone familiar with the technology at issue. The concept is used to determine whether the technology is truly an invention or obvious to a skilled person.)  Femal said people would realize that a processor was involved but would have no idea ''what is behind the curtain.''

In their April 10 decision, Judge Ward and his two fellow patent judges rejected Personal Audio’s arguments that episodes must be in a given order and have the same theme and also ruled that claiming computers are used to post to the web ''would be trivial to'' a person familiar with how the Internet works. The fact that time and money is spent arguing these obvious points is part of what’s wrong with our patent system. Our fight to shield podcasting from Personal Audio’s bogus patent sword was supported by more than a thousand people who donated to our Save Podcasting campaign. The company tried to get a federal judge to force us to disclose the donors—but we successfully persuaded the judge to reject that request, and ultimately won our petition before the USPTO to invalidate the patent. The case highlights once again how badly reform is needed to fix our patent system so that true innovation is encouraged, rewarded, and protected and costly fights over whether the Internet relies on computers are a thing of the past.


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Fast Track Bill Would Legitimize White House Secrecy and Clear the Way for Anti-User Trade Deals Print
Written by Administrator   
Thursday, 16 April 2015 06:51

Following months of protest, Congress has finally put forth bicameral Fast Track legislation today to rush trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) through Congress. Sens. Orrin Hatch and Ron Wyden, and Rep. Paul Ryan, respectively, introduced the bill titled the Bipartisan Congressional Trade Priorities and Accountability Act of 2015. With Fast Track, lawmakers will be shirking their constitutional authority over trade policy, letting the White House and the U.S. Trade Representative pass Internet rules in back room meetings with corporate industry groups. If this passes, lawmakers would only have a small window of time to conduct hearings over trade provisions and give a yea-or-nay vote on ratification of the agreement without any ability to amend it before they bind the United States to its terms.

Don't Fast Track Train Image

The Fast Track bill contains some minor procedural improvements from the version of the bill introduced last year. However, these fixes will do little to nothing to address the threats of restrictive digital regulations on users rights in the TPP or TTIP. The biggest of these changes is language that would create a new position of Chief Transparency Officer that would supposedly have the authority to “consult with Congress on transparency policy, coordinate transparency in trade negotiations, engage and assist the public, and advise the United States Trade Representative on transparency policy.”

However, given the strict rules of confidentiality of existing, almost completed trade deals and those outlined in the Fast Track bill itself, we have no reason to believe that this officer would have much power to do anything meaningful to improve trade transparency, such as releasing the text of the agreement to the public prior to the completion of negotiations. As it stands, the text only has to be released to the public 60 days before it is signed, at which time the text is already locked down from any further amendments.

There is also a new "consultation and compliance" procedure, about which Public Citizen writes [pdf]:

The bill’s only new feature in this respect is a new “consultation and compliance” procedure that would only be usable after an agreement was already signed and entered into, at which point changes to the pact could be made only if all other negotiating parties agreed to reopen negotiations and then agreed to the changes (likely after extracting further concessions from the United States). That process would require approval by 60 Senators to take a pact off of Fast Track consideration, even though a simple majority “no” vote in the Senate would have the same effect on an agreement.

Thus, essentially the Fast Track bill does the same as it ever did—tying the hands of Congress so that it is unable to give meaningful input into the agreement during its drafting, or to thoroughly review the agreement once it is completed.

A main feature of the bill is its negotiation objectives, which set the parameters within which the President is authorized to negotiate the agreement. If Congress considers that the text ultimately deviates from these objectives, it can vote the agreement down. Some of these negotiation objectives have been added or changed since the previous Fast Track bill, but none of these provide any comfort to us on the troubling issues from the Intellectual Property, E-Commerce, and Investment chapters of the TPP. Indeed, some of the new text raise concerns. For example:

  • Governments are to “refrain from implementing trade-related measures that impede digital trade in goods and services, restrict cross-border data flows, or require local storage or processing of data”. Data flows and the location of the processing of data aren't solely or even primarily trade issues; they are human rights issues that can affect privacy, free expression and more. The discussion about whether laws that require local storage and processing of certain kinds of sensitive personal data are protective of user rights, for instance, cannot take place in the secret enclaves of a trade negotiation. The bill does allow for exceptions as required to further "legitimate policy objectives", but only where these "are the least restrictive on trade" and "promote an open market environment".
  • Trade secrets collected by governments are to be protected against disclosure except in "exceptional circumstances to protect the public, or where such information is effectively protected against unfair competition". But there are other cases in which there may be an important public interest in the disclosure of such trade secrets, such as where they reveal past misdeeds, or throw transparency onto the activities of corporations executing public functions.

But more troubling than what has been included in the negotiating objectives, is what has been excluded. There is literally nothing to require balance in copyright, such as the fair use right. On the contrary; if a country's adoption of a fair use style right causes loss to a foreign investor, it could even be challenged as a breach of the agreement, under the investor-state dispute settlement (ISDS) provisions. Further, the "Intellectual Property" section of today's bill is virtually identical to the version introduced in 2002, and what minor changes there are do not change the previous text's evident antipathy for fair use. So while the new bill has added, as an objective, "to ensure that trade agreements foster innovation and promote access to medicines," an unchanged objective is "providing strong enforcement of intellectual property rights." What happens if those two objectives are in conflict? For example, in many industries, thin copyright and patent restrictions have proven to be more conducive to innovation than the thick, "strong" measures the bill requires. Some of our most innovative industries have been built on fair use and other exceptions to copyright—and that's even more obvious now than it was in 2002. The unchanged language suggests the underlying assumption of the drafters is that more IP restrictions mean more innovation and access, and that's an assumption that's plainly false.

All in all, we do not see anything in this bill that would truly remedy the secretive, undemocratic process of trade agreements. Therefore, EFF stands alongside the huge coalition public interest groups, professors, lawmakers, and individuals who are opposed to Fast Track legislation that would legitimize the White House's corporate-captured, backroom trade negotiations. The Fast Track bill will likely come to a vote by next week—and stopping it is one sure-fire way to block the passage of these secret, anti-user deals.

If you're on Twitter, help us call on influential members of Congress to come out against this bill.

Additional Resources:

Read the text of the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 here.

Read about all of our concerns with the TPP agreement:


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On the Clipper Chip's Birthday, Looking Back on Decades of Key Escrow Failures Print
Written by Administrator   
Thursday, 16 April 2015 05:07

On this day in 1993, the Clinton White House introduced the Clipper Chip, a plan for building in hardware backdoors to communications technologies. The chip would be used in American secure voice equipment, giving law enforcement agencies the explicit ability to decrypt its traffic using a key stored by the government. The White House promised that only law enforcement with proper "legal authorization" could access that key—and thus, the contents of the communications.

Obviously, the Clipper Chip never took hold. Key escrow generally encountered massive public opposition, and the security of the Clipper Chip specifically was demonstrated to be fundamentally flawed [PDF] by security researchers like Matt Blaze. By 1996 the Clipper Chip proposal was dead; one might hope, too, that the government would give up the idea of mandating backdoors into encrypted communications. Of course, as anybody who is following the current debate over encryption, privacy, and law enforcement knows, that was not the case.

Key escrow was a bad idea in 1993. It was a bad idea when the National Security Agency began attempting to covertly insert backdoors into cryptographic standards from 2000 on. It was a bad idea when the Obama administration indicated a desire to legislate key escrow in 2010. And it's a bad idea now, coming from law enforcement agencies like the FBI and supported by the NSA, to insert new backdoors that a so-called government "golden key" can unlock. (Because time is a flat circle, it's worth noting that the phrase "Golden Key" also dates back nearly 20 years—as the name of an EFF coalition campaign against, you guessed it, key escrow.)

The FBI has complained about the impending doom of communications "going dark" for decades now. You can read FBI testimony from the 1990s that is virtually indistinguishable from the same misguided statements today. As the overwhelming majority of security experts will tell you, inserting backdoors in the security software we rely on makes us all less safe. As we articulated over 20 years ago, "key escrow" is really "key surrender," and isn't part of a coherent security strategy. And that's just one of the epic failures the come from government efforts to regulate cryptography.

It does a disservice to the public to call the current brouhaha over backdoors a "debate." In a debate, different sides present facts and arguments, and somebody can win. The FBI, the NSA, and others have retreated from that strategy. After all, the facts are in on crypto backdoors—they are not necessary, they do not work, and they make us less safe. As we look back over EFF's 25 years, and the 22 years since the Clipper Chip entered the scene, let's hope we can finally make these pointless and dangerous proposals a thing of the past.


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EFF at 25: Remembering the Case that Established Code as Speech Print
Written by Administrator   
Thursday, 16 April 2015 03:49

In honor of EFF's 25th anniversary, we're highlighting pivotal moments from the fight for digital civil liberties. EFF members have made it possible for EFF's attorneys and activists to champion digital rights in courts and beyond—please donate to EFF to ensure we can continue to fight for the users.

One of EFF's first major legal victories was Bernstein v. Department of Justice, a landmark case that resulted in establishing code as speech and changed United States export regulations on encryption software, paving the way for international e-commerce. We represented Daniel J. Bernstein, a Berkeley mathematics Ph.D. student, who wished to publish an encryption algorithm he developed, the source code for a program to run the algorithm, and a mathematical paper describing and explaining the algorithm.

At the time—the early 90s—the US government designated encryption software as a "munition" to be regulated for national security purposes with intensive export restrictions, based on a litany of fear-mongering, techno-ignorant reasons. The law required Bernstein to submit his ideas, register as an arms dealer, and apply for a export license merely to publish his work online. (Infuriatingly, the State Department also warned him they would deny him a license if he actually applied, because his technology was too secure.)

So, EFF assembled a crack legal team and, in February of 1995, sued the US government on behalf of Bernstein. Not only did these regulations chill the speech of individuals like Daniel Bernstein, they hampered American business by limiting the export of encryption technologies and methods. Then, as now, EFF saw clearly the importance of protecting speech online and the necessity of encryption to building a web with privacy and security protections.

The court eventually ruled that the export control laws on encryption violated Bernstein's First Amendment rights by prohibiting his constitutionally protected speech, leading to regulatory changes that made it easier to publish encryption software online without the approval of the US government. Along the way, Judge Marilyn Hall Patel in the Northern District of California issued the crucial first ruling that found that code is speech and so is protected by the First Amendment.

This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French....Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it...

-Judge Patel, April 15, 1996

Today it may seem obvious that communication using programming languages is protected by the First Amendment. But before this decision, no judge had formalized that principle in a ruling. Bernstein helped pave the way for the growing use of encryption that makes web browsing and activities like banking and shopping more secure, and its recognition of code as speech helped build the legal foundation for online rights being recognized alongside offline ones.

For EFFers, this case resonates beyond those important results: one of the lawyers on that crack legal team was Cindy Cohn, who became our longtime legal director and recently moved to the Executive Director position.


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Want to Record The Cops? Know Your Rights Print
Written by Administrator   
Thursday, 16 April 2015 03:17

There are some very disturbing videos circulating the Internet right now, depicting the deaths of unarmed civilians at the hands of trained, armed men. Many of these videos even show individuals being shot in the back, or as they try to flee.

These are videos of police officers in America killing unarmed black men like Oscar Grant and Eric Garner. And, as the most recent case shows, without these recordings, much of America might not have any idea exactly how much of a problem this is.

Citizen videos of law enforcement encounters are more valuable than ever. And for those who are wondering—it is legal to record the police.

The police don’t always seem aware of this. There have been incidents across the country of police telling people to stop filming, and sometimes seizing their camera or smartphone, or even arresting them, when they don’t comply.

In the most recent citizen-filmed incident to gain widespread media attention, on April 4, white police officer Michael Slager shot and killed 50-year-old black man Walter Scott in the back as he ran away in North Charleston, South Carolina. Bystander Feiden Santana filmed the encounter, which started with a traffic stop. After Santana’s video surfaced, the officer was arrested and charged with murder. Santana said that he is scared of what might happen to him. He also considered deleting the video, and doing nothing with it. And Santana is not the only person who may be intimidated by the prospect of filming the police, with good reason.

That’s why, in addition to EFF Attorney Sophia Cope's legal analysis highlighting some of the recent case law establishing the right to film police officers, we’re sharing some basic information cop watchers should know.

What Courts Have Said

Courts across the country have held that there is a First Amendment right to openly record the police. Courts have also held, however, that individuals cannot interfere with police operations, and that wiretapping statutes that prohibit secretly recording may apply to recording the police. But underlying these decisions is the understanding that recording the police is constitutionally protected.

Know Your Rights and Be Safe

While it has been established that individuals have the right to record the police, what happens on the street frequently does not match the law. Also, if you’re thinking about filming the police, it’s likely you’ll have more police encounters than you otherwise would. 

The National Lawyers Guild (NLG) is a bar association that does police accountability work. The National Lawyers Guild Legal Observer program is focused on watching the police at protests. CopBlock and Cop Watch are loosely organized groups that have chapters across the country, and provide resources on filming the police everyday. 

Here are the most essential things to keep in mind:

  • Stay calm and courteous, even though the situation may be stressful. Remember—if you get arrested or get into an altercation with the police, you won’t be able to keep filming them!
  • Be sure that you are not interfering with police operations, and stand at a safe distance from any encounter you film.
  • Your right to record audio surreptitiously of police carrying out their duties in public may vary from state to state. You should check your state law to know the fullest extent of your rights, but the lowest risk way to record is to hold your device in plain view of the officers.
  • Do not lie to police officers. If they ask whether you are recording, answer honestly.
  • If the police start interacting with you, treat the encounter as you would any encounter with law enforcement—in fact, you may want to be extra careful, since as the repeated incidents of police seizing cameras and smartphones demonstrate, it may make you more of a target.
  • If you are at a demonstration, police will often issue a dispersal order—in general, they will declare a protest an unlawful assembly and tell people to live. Unless you are granted permission to stay, that order applies to you, too. If you do not comply, you should expect to be arrested.
  • While it is not legal for an officer to order you to move because you are recording, they may still order you to move. If you do not comply you could be arrested. If you do want to comply, consider complying with the smallest movement possible, and verbally confirming that you are complying with their orders. For example, if you are standing five feet from an officer, and they say “You need to move back,” you might want to consider calmly saying “yes, officer, I am moving back” while taking a few steps back.

Below are some helpful resources and tips related to interacting with and filming the police from these groups and EFF:

  • The National Lawyers Guild (NLG) “Know Your Rights” pamphlet (available in multiple languages) provides basic information you should know for interacting with the police.
  • The NLG Legal Observer Program training manual has tips for filming the police at protests, many of which are useful for filming any encounter.
  • Cop Watch has resources and examples here.
  • EFF’s Know Your Rights guide provides information on what you need to know if the police want to search your electronic devices.

Why Focus on Citizen Recording When Departments Are Implementing Bodycams? 

As the conversation about police accountability continues to take place across the country, body cameras are often proposed as a solution, and they are getting a lot of attention in the news right now. “Bodycam” recordings have made a difference in some cases. But many transparency and accountability advocates including EFF, have expressed reasonable doubts about their efficacy.  States are trying to grapple with the many privacy issues they raise, mostly by considering exempting the footage from public records act requests. And while “bodycams” may be a contentious subject, there’s little doubt that it is citizen footage of law enforcement encounters that has really fueled the current debate about police accountability.

Keep Taping

As North Charleston Pastor Nelson Rivers said: “If not for the video, we would still be following the narrative from the officer. If not for this video, the story would be entirely different.” Scott’s family agrees. After watching the video, his brother stated: “I think that if that man never showed the video we would not be at the point that we’re at right now.” And North Charleston Councilwoman Dorothy Williams had this to say: “I'm asking all the citizens of North Charleston to continue taping.”

You don’t have to live in North Charleston to know why that’s a good idea.

Disclosure: Nadia Kayyali serves as the Vice-President for the National Lawyers Guild SF Bay Area Chapter, has served on the NLG’s national board, and has been involved with the NLG legal observer program nationally for over four years.


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Police Must Respect the Right of Citizens to Record Them Print
Written by Administrator   
Thursday, 16 April 2015 03:15

“I’m asking all the citizens of North Charleston to continue taping.”

That is what Councilwoman Dorothy Williams said in response to the shooting death of Walter Scott. She and others recognize that the story would have been very different without the video showing that a white police officer shot the unarmed black man several times in the back as he ran away from a traffic stop in North Charleston, South Carolina. Both NBC News and Huffington Post imagined the story absent the video.

The tragic encounter was filmed by 23-year-old bystander Feiden Santana. After Santana released his video, the officer was arrested and charged with murder. Santana decided to share the video with Scott’s family because he knew it contradicted the official police account.

This case exemplifies why an important component of police accountability is the ability of citizens to record officers carrying out their public duties. Thankfully Santana was not harassed for wielding his cell phone, but many people have been: officers have ordered people to stop recording, seized their devices, deleted the photos or video/audio recordings, and even arrested people.

The Justice Department report on the Ferguson Police Department issued last month chronicled a pattern of abusive and unconstitutional behavior by police officers when citizens tried to record them (see pages 26-28). One officer arrested a woman after she began recording her husband’s arrest by the officer. As the report explains, “The officer became irate, declaring, ‘you don’t videotape me!’”

Some federal appeals courts and the Justice Department have recognized the right of citizens to record the police, although the Supreme Court has not squarely ruled on the issue. Recent cases have specifically addressed recording the police in the age of the cell phone, which can record pictures, video and audio (with audio recording implicating wiretap laws).

In 2011, the U.S. Court of Appeals for the First Circuit issued an opinion in Glik v. Cunniffe. Simon Glik had used his cell phone to record both video and audio of Boston police officers arresting another man. The officers then arrested Glik for making the recording, but the charges were later dropped. Glik sued the officers and the City of Boston for violating his constitutional rights.

The First Circuit held that the First Amendment “unambiguously” protects the right of citizens to record the police – and government officials generally – carrying out their official duties in public. The court stated, “Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.”

The details of the case are important. Relying on the fact that Glik had stood about 10 feet away from the officers, the court stated, “Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”

The First Circuit also held that the Boston police violated the Fourth Amendment because they did not have probable cause to arrest Glik. Because Glik’s recording of the other man’s arrest included audio, the officers accused Glik of violating the Massachusetts wiretap statute. Massachusetts is an “all-party consent” state, meaning that all parties to a conversation must consent to it being recorded; whereas the federal Wiretap Act and other states’ laws are “one-party consent” statutes, meaning that only one party to a conversation needs to consent to it being recorded.

The First Circuit noted that although the Massachusetts wiretap statute protects both private and public conversations (notwithstanding the First Amendment), it only prohibits “secret” audio recording where the parties to a conversation are unaware that they are being recorded. By contrast, the court found that the officers were on notice: Glik held his cell phone – “a device commonly known to record audio” – in “plain view” of the officers and one officer, in fact, knew that Glik was recording audio because the officer asked Glik if he was doing so and Glik replied in the affirmative.

Thus, the court held that Glik did not violate the Massachusetts wiretap statute because he did not make the audio recording surreptitiously – even though the officers were engaged in a public “conversation” with the arrestee and no one consented to being recorded. (In 2014, a Massachusetts woman was charged with violating the wiretap statute for making a secret audio recording of her own arrest by hiding her smartphone in her purse, but the charge was later dropped.)

In 2012, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in ACLU of Illinois v. Alvarez. The ACLU challenged the constitutionality of the Illinois wiretap statute, which, like the Massachusetts law, protected both private and public conversations and required the consent of all parties to a conversation. Unlike the Massachusetts wiretap statute, however, the Illinois statute prohibited all audio recording, not only surreptitious audio recording. The ACLU of Illinois was fearful of prosecution because it intended to record police officers performing their official duties in public as part of an accountability program.

The Seventh Circuit granted a preliminary injunction and held that the Illinois wiretap statute likely violated the First Amendment because it prohibited the audio recording – a “medium of expression” – of public conversations of police officers where no privacy interests existed. The court said that the Illinois legislature was not justified in “criminalizing this particular method of preserving and publishing the public communications of these public officials.” Though it was not central to the decision, the court also noted that the ACLU’s plan was to openly – not surreptitiously – record police officers in public.

The Seventh Circuit was quick to emphasize, however, that the right to record the police is not a right to interfere with police operations. The court said, “Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.” Thus, “While an officer surely cannot issue a ‘move on’ order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law enforcement needs.”

In line with these federal cases, in March 2014, the Illinois Supreme Court held in two cases that the state wiretap statute was unconstitutional under the First Amendment precisely because it protected public conversations where the parties had no expectation of privacy, and it criminalized even open recording where the parties were on notice that their conversation was being recorded.  

In December, the Illinois legislature sought to cure the constitutional deficiencies of the wiretap statute: it narrowed the law to make it a crime to record a private conversation in a surreptitious manner. While it may be difficult to determine when parties have a reasonable expectation of privacy and thus are having a “private” conversation even in a public place, we hope that this law will not be used to justify the arrest of Illinois citizens making audio recordings of police officers carrying out their official duties in public.

Last year, the city of Baltimore settled with Christopher Sharp for $250,000 after he filed a lawsuit alleging violations of his constitutional rights. Police officers had seized his cell phone and deleted his recordings, which included the arrest of one of his friends by the officers.

In that case, to the delight of civil libertarians, the Justice Department twice weighed in to defend citizens’ rights: in a statement of interest filed in the district court, and in a letter sent to the Baltimore Police Department. In the statement of interest, the Justice Department wrote, “The First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties.”

The statement of interest also addressed the seizure of Sharp’s cell phone, explaining that under the Fourth Amendment the police cannot seize a cell phone (or other device) without a warrant unless the officer has probable cause to believe that the device holds evidence of a crime and there is an emergency (i.e., “exigent circumstances”) justifying a warrantless seizure. Even if the warrantless seizure is justified, the police may not search the device without a warrant based on probable cause – and they certainly may not delete files.

If a person is arrested (which Sharp was not), the police may not search a cell phone simply based on the fact of the arrest – they must generally obtain a warrant from a judge.

In 2012, partially in response to the Sharp case, EFF joined a letter to Attorney General Eric Holder calling on law enforcement authorities to respect the First Amendment right of citizens to record the police.

Unfortunately, Baltimore police apparently have not learned their lesson. In December, a woman filed a lawsuit after she was allegedly pulled from her car and tased while attempting to record the arrest of another man.

The District of Columbia Police Department is a good example of a robust policy directing officers to respect the right of citizens to record the police. Issued in 2012, the heart of the policy states, “The Metropolitan Police Department recognizes that members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.”

EFF urges more police departments and more courts to recognize the clear First Amendment right of citizens to record police officers carrying out their public duties.

See my colleague Nadia Kayyali’s related blog post that includes tips and resources on how to safely record and interact with the police.


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What If MLK’s “Letter from Birmingham Jail” Had Been a Facebook Post? Print
Written by Administrator   
Thursday, 16 April 2015 02:29

“Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?”

- Martin Luther King, Jr., “Letter from Birmingham City Jail”

April 16, 1963

Martin Luther King Jr.’s “Letter from Birmingham City Jail” is considered by many civil-rights historians to be one of the seminal writings of the era, on par with King’s “I Have a Dream” speech. But while King’s moving oration at the Lincoln Memorial was delivered directly to thousands, his impassioned letter was composed in solitary confinement and would not have seen the light of day without the help of several brave and dedicated intermediaries.

In the spring of 1963, King was arrested after he and others in the racial equality movement defied a court injunction against public protesting. From behind bars, he obtained a copy of a joint-statement written by white religious leaders criticizing his methods. King felt compelled to respond. As the daughters of King’s attorney, Arthur Shores, explain in their father’s biography, King scribbled his response in the margins of old newspapers and on toilet paper and other paper scraps; his lawyers smuggled the notes out of the jail to be transcribed, then they smuggled the edits back into the jail for King to review. Eventually, the letter made it onto the pages of several influential newspapers. 

 If King were a prisoner in the state of Alabama today, those supporters may very well have first published the letter on King’s Facebook page. But under current Alabama law, that would have been a crime:

Section 14-11-70

Prohibited activities; violations.

(a) No inmate in the custody of the Department of Corrections or city and county jails shall establish or maintain an account on any Internet-based social networking website.

(b) For purposes of this section, social networking website means an Internet-based website that has any of the following capabilities:

(1) Allows users to create web pages or profiles about themselves that are available to the general public or to any other users.

(2) Offers a mechanism for communication among users, such as a forum, chat room, electronic mail, or instant messaging.

(c) Any inmate or other person working in conjunction with a state correction's inmate who violates this section shall be guilty of a misdemeanor, punishable by a fine not to exceed five hundred dollars ($500).

Alabama’s law not only forbids inmates from having active social networking profiles, but it also defines “social networking” so broadly that it encompasses any site that offers web-based email. And any person who assists a state inmate in accessing a social networking website, such as acting as a go-between, could also face prosecution. (King, however, was a city inmate.)

Alabama is only one of many states that have enacted regulations barring inmates from accessing social media, and many other states have consequences far harsher than Alabama’s $500 fine. For example:

  • In New Mexico, state Corrections Department regulations forbid inmates from accessing the Internet through third parties. One inmate was sentenced to 90 days in solitary confinement after his family updated his Facebook page.
  • In Indiana, a prisoner was sent to solitary confinement, and his sister was cut off from communicating with him, after she posted a videogram he had made through the prison’s communications system to Facebook as part of a social media campaign to raise attention for his case.
  • In South Carolina, hundreds of inmates have been sentenced to solitary confinement for accessing Facebook—both through intermediaries and contraband cell phones—with some receiving decades-long sentences. The South Carolina Department of Corrections has also sent hundreds of takedown requests to Facebook, successfully getting Facebook to suspend inmate accounts—an alarming new censorship trend.

In defending these policies, corrections officials argue that inmates can use Facebook to plan criminal activities and harass victims. But banning all online or social media speech by inmates is far too broad and restrictive of a measure to deal with such a narrow problem. While such uses of social media should be addressed, this is not a strong enough reason to indiscriminately ban all inmate speech over social media or on the Internet. Inmates have First Amendment rights, too. 

Social media can be beneficial to the rehabilitation process by allowing inmates to maintain connections with the outside world, including their support network of families and friends. And as we have already seen, society benefits when prisoners are able to engage in public debate. Rev. Martin Luther King Jr. is only one example. Chelsea Manning and Barrett Brown are two others.

Since being sentenced to 35 years in prison for being a Wikileaks source, Manning has contributed insightful essays to The Guardian’s Comment if Free opinion blog, with covers issues ranging from ISIS and CIA torture to the treatment of transgender individuals in prison. Manning also recently joined Twitter (@xychelsea); she composes tweets over the phone to her communications consultants at FitzGibbon Media, who then transcribe and post the comments online.

Similarly, journalist Barrett Brown, who has been incarcerated for crimes stemming from an FBI investigation into the high-profile breach of an intelligence contractor’s data systems, also has been publishing articles while in custody. His work has appeared in publications such as The Daily Beast and Vice, as well as the Free Barrett Brown Tumblr page. Alarmingly, earlier this month, his access to the prison email system was abruptly cut off after he began corresponding with journalist Glenn Greenwald about contributing pieces to The Intercept.  

Inmates may lose many liberties when they enter the correction system, but the ability to participate in debate online should not be one of them. Censorship of prisoners is also censorship of society at large because it deprives the public of the freedom to read the long letters, consider the long thoughts, and hear the long prayers of people who have lost their freedom.  

Related Issues: 

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