Stupid Patent of the Month: A Drink Mixer Attacks the Internet of Things Print
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Monday, 31 August 2015 04:21

Imagine if the inventor of the Segway claimed to own “any thing that moves in response to human commands.” Or if the inventor of the telegraph applied for a patent covering any use of electric current for communication. Absurdly overbroad claims like these would not be allowed, right? Unfortunately, the Patent Office does not do a good job of policing overly broad claims. August's Stupid Patent of the Month, U.S. Patent No. 8,788,090, is a stark example of how these claims promote patent trolling.

A patent troll called Rothschild Connected Devices Innovations, LLC (“RCDI”) owns a family of patents on a system of customizing products. Each of these patents stems from the same 2006 application. The idea is simple: connect some kind of product mixer to the Internet and allow users to make custom orders. The application suggests using the system to make beverages or shampoo.

Here’s how the application describes the invention:

The system and method of the present disclosure enables a user, e.g., a consumer, to customize products containing solids and fluids by allowing a server communicating over the global computer network, e.g., the Internet, to provide product preferences of a user to a product or a mixing device, e.g., a product or beverage dispenser.

Even in 2006, this was a spectacularly mundane idea. The application did not disclose any new networking technology. Nor did it reveal any new beverage-making technology. It just connects a product mixer to the Internet. Any claim to such a humdrum combination should be found invalid as obvious.

All of the patents in this family are pretty silly. But it get worse. RCDI’s most recently granted patent, U.S. Patent No. 8,788,090, includes an extremely broad claim. Claim 1 purports to cover any system where a “remote server” “transmits” a “product preference” to a product via a “communication module.” This is madness. RCDI is effectively claiming to have invented the idea of remote configuration … in 2006. Even if other claims in this patent family are valid (something we doubt), the Patent Office should never have allowed this claim.

Taking an extremely broad view of this patent claim, RCDI has sued a collection of companies, including ADT, Cisco, Protect America, OnStar, and Rain Bird. It seems that any company that sells products that connect to the Internet is at risk. For example, in its complaint against ADT, RCDI states that a system that allows customers to “remotely customize the operation” of a “thermostat” infringes its patent. Having supposedly invented an online beverage mixer, RCDI is now asserting its patent against the entire Internet of Things.

Even though it traces priority back to a 2006 parent application, this month's stupid patent is not the product of some earlier, less diligent, era at the Patent Office. The “continuation” application that led to this patent was filed in March 2013 and the patent issued in July 2014. This illustrates how applicants use the continuation process (which allows them to file an unlimited number of new applications based on a previous patent application) to try to get ever broader claims issued. Too often, once the Patent Office issues one patent in a family, examiners are overly lenient allowing continuation applications. This month’s winner likely would have never issued if the examiner had diligently applied KSR v. Teleflex’s prohibition on obvious combinations.

There will be no prize for guessing where RCDI has filed all of its litigation: the Eastern District of Texas. We recently explained that the Eastern District is the venue of choice for trolls. Its unique, plaintiff-friendly rules make it easier for trolls to use the cost of defense to extort settlements, even when the underlying case is weak.

We need broad patent reform to stop abusive patent litigation. We need ligation reform (including venue reform) that makes patent trolling less attractive. We also need reform at the Patent Office so that it doesn’t issue terrible patents like this in the first place. Contact your representative and tell them to pass patent reform.

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EFF to Supreme Court: Police Need a Warrant for Americans’ Cell Phone Location Records Print
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Monday, 31 August 2015 03:14
Florida Case Allowing Unconstitutional Mobile Phone Tracking Needs Review by High Court

Washington D.C.—Americans have the right to expect that digital records of their daily travels—when they left home, where they went, and how long they stayed—is private information, the Electronic Frontier Foundation (EFF) said in an amicus brief filed with the Supreme Court of the United States.

Weighing in on one of the most important digital privacy rights cases of the year, EFF is asking the court to hear arguments in Davis v. U.S., a federal criminal case from Florida that examines whether police need a search warrant to obtain historical cell site location information (CSLI). These records show law enforcement which cell phone towers your phone has connected to in the past. In this case, police obtained 67 days of records about defendant Quartavious Davis without a warrant and used them to implicate him in various robberies.

In the brief filed Monday, EFF and other advocacy groups argue that the ubiquity of cell phone use in this country—along with a clear increase in law enforcement demands for cell site records and conflicting court rulings about the need for search warrants—means the U.S. Supreme Court should grant review in Davis’s case.

“It’s time for law enforcement to recognize that Americans’ physical location information is sensitive, and private, and protected by the Fourth Amendment’s guarantee against unreasonable searches and seizures,’’ said EFF Senior Staff Attorney Hanni Fakhoury. “Cell phones are an integral part of modern life and carry detailed information about where we go and when we travel. Many federal and state courts have already ruled that cell site information is protected under the Fourth Amendment. We are urging this country’s highest court to afford all Americans this important protection from law enforcement unless there’s a search warrant.’’

The request for Supreme Court review comes after the U.S. Court of Appeals for the Eleventh Circuit found Davis did not have an expectation of privacy in historical cell site records, meaning police did not need to obtain a search warrant before requesting and receiving his location data. This decision conflicts both with an earlier decision from the Florida Supreme Court, and a later decision from the U.S. Court of Appeals for the Fourth Circuit, which found people do have an expectation of privacy in these records, so police need a warrant to get them. More critically, the Eleventh Circuit’s decision ignores the modern reality of cell phone use: nearly everyone carries one, leaving a digital trail that could potentially be accessed at any time. Without a strong ruling from the highest court, the public and police are left with conflicting guidance about the level of constitutional protection for this sensitive location information.

“The U.S. Supreme Court has already ruled in Riley v. California that cell phones hold vast amounts of private information, potentially the sum of an individual’s private life, and searching that data requires a search warrant,’’ said EFF Senior Staff Attorney Jennifer Lynch. ‘’We believe it’s high time that the government recognize that cell phones not only hold our private data, they also generate data—stored with cell phone companies—about our private movements and travels. The government shouldn’t be allowed unfettered access to this information without first going to court and obtaining a warrant.’’

Senior Staff Attorney
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Users to USTR: Don't Sign Away Our Ability to Fix the Orphan Works Problem Print
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Monday, 31 August 2015 03:13

The United States' excessive copyright terms have led to an orphan works crisis in this country. Tens of thousands of books, films, music recordings, and other cultural works across decades have been made completely inaccessible by copyright's strict monopoly, which can last more than 140 years. That casts a shroud of legal uncertainty over orphan works—works where the author or rightsholder cannot be identified or located—which makes using, preserving, or sharing them risky and essentially renders them culturally invisible and forbidden.

Earlier this year, the Register of Copyrights issued a report about this very problem called Orphan Works and Mass Digitization. In it, the Register of Copyrights acknowledges a need to do something about the fact that "orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace." The report includes a discussion of several proposals that could expand access to orphan works. One proposal is to put limits on the legal consequences for those who do anything technically infringing, in order to make it less daunting to take a chance and use them.

In the midst of this overdue discussion about how to address this issue the Trans-Pacific Partnership (TPP) threatens to undermine Congress' own ability to create practical solutions to fix it. The leaked TPP's Intellectual Property chapter has revealed heavy-handed civil and criminal penalties that could go beyond existing U.S. law to treat even noncommercial uses of copyrighted content, including of orphan works, as illegal and criminal.

In light of this, EFF has joined as signatory to a letter that calls on the U.S. Trade Representative not to agree to any provisions in the TPP that could prevent Congress from enacting fixes to address the orphan works problem. Other signatories to the letter are Authors Alliance, Creative Commons, Knowledge Ecology International, and New Media Rights.

EFF stands for more comprehensive reforms to our copyright laws that would also help with the orphan works problem—such as shortening the term to, at most, the international standard length of Life+50 years, and a requirement that copyright holders proactively register (and renew registration on) their works so that they don't merely fall into a cultural black hole. But in the absence of those, we can't let the White House pass more rules that would keep so many creative works lost and invisible for years. That's why we urge the USTR to ensure that the TPP does not bind us to inflexible, restrictive rules that would undermine congressional efforts towards enacting incremental fixes to this copyright crisis.


Civil Society Letter on TPP Remedies Over Orphan Works [PDF] - August 31, 2015

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Justice Delayed: Ninth Circuit Sends EFF’s NSL Cases Back for Consideration Under USA Freedom Print
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Monday, 31 August 2015 00:48

Often overlooked in discussions of the USA Freedom Act passed in June are the changes made to the National Security Letter (NSL) statute. The law addresses some of the more obvious problems with NSLs but fails, by a long shot, to bring them up to the standard required by the U.S. Constitution. Most critically, USA Freedom did not fix the problem of overbroad, potentially eternal gag orders, or the fact that the NSL statute relegates the court to little more than a rubber stamp.

Sadly, in a ruling made public last week, the U.S. Court of Appeals for the Ninth Circuit in San Francisco used these minimal USA Freedom Act changes as cause for another delay in considering the constitutionality of NSLs in two of EFF’s flagship cases.

The result is that the gag orders, which have already muzzled our clients for several years, will continue into the foreseeable future. The gags have prevented our clients from participating fully in the debate around USA Freedom and will continue to prevent them from participating in the ongoing public debate about national security surveillance in general and NSLs in particular with the power and authority that comes from speaking as a recipient.  

While we’re extremely disappointed, we will continue to push forward to get the gags lifted, allow our heroic clients to speak freely, and seek to have the NSL statute declared unconstitutional. 

What are NSLs and How Did USA Freedom (Not) Change Them?

The NSL statutes allow the government, based only on the FBI’s authority, to issue a secret letter to communications service providers, including telephone and Internet services. The letter requires providers to turn over subscriber and other basic non-content information about their customers. No judge is involved.

If that weren’t bad enough, NSLs also allow the government to place a gag on the recipient providers, preventing them from telling their affected customers about the request, but also preventing them from telling the public that they’ve even received a letter. This prior restraint violates the First Amendment.

EFF’s Heroic, Unnamed Clients

EFF currently represents two service providers in First Amendment challenges to the statutes, which raise questions of the substance of the laws and also the incredibly overbroad gag provisions. One of our clients has now been gagged since 2011—over 4 years—from discussing even the fact that it received a letter; the other has been gagged for over 2 years.

EFF scored a groundbreaking victory against the unconstitutional NSLs in 2013. A federal district court here in San Francisco held that the NSL statutes were unconstitutional on several grounds, chiefly that they violate the First Amendment. The injunction was stayed pending appeal, and it seemed that the decision stood a good chance of being upheld after the appellate argument in October 2014 (audio).

But then the executive branch asked Congress to include some superficial changes in USA Freedom. These changes basically codify parts of a procedure the FBI was already using after a previous ruling in New York, while not bringing its actual practices to the level required by the First Amendment.

What Didn’t USA Freedom Do

USA Freedom did very little to the core of these statutes. As we argued to the Ninth Circuit after USA Freedom passed, the law still:

·      Creates a prior restraint on our clients that doesn’t follow the procedural protections created by the seminal Supreme Court case Freedman v. Maryland. Under Freedman, the First Amendment requires the government to seek prior judicial approval for a gag and requires a “prompt” decision by the court, a standard that has plainly been violated here by the years-long gag on our clients. While the law does require a so-called “reciprocal notice” practice—one that the government had already voluntarily adopted—even that procedure fails to meet constitutional standards. It still doesn’t require the government to seek judicial review first or limit the time frame for review. It also still gives the court very little leeway to review the government’s decision to issue a gag.

·      Allows the government to gag recipients based upon the mere assertion that a harm “may result,” a boundless, subjective term rather than a showing that the gag is objectively and definitely  “necessary” to prevent a harm.

·      Authorizes overbroad, open-ended gags, preventing even a general statement that the recipient has received an NSL. Even under USA Freedom, there is no specific provision causing the gag to expire when any threat has ended, instead punting to the government to create new procedures for review “at appropriate intervals,” a term entirely defined by the government.

·      Still allows the government to self-issue NSLs with no prior judicial review, in violation of the First and Fifth Amendments.

Even though EFF was neutral on USA Freedom, and even supported earlier versions, we were clear that the law did not do enough to reform the intelligence community. NSLs were one of the ways that the law fell short.  Even so, the Ninth Circuit’s decision to delay a final decision in these cases is especially disappointing to us and to our clients. After years of intense litigation, our clients remain under an unconstitutional gag and, in a turn of events only Kafka could love, they were unable to participate in a meaningful way in the Congressional debate about whether they should be gagged. Their ongoing inability to speak despite congressional action is a testament to the necessity of applying the Constitution and ensuring speedy judicial review. Speedy or not, we’ll fight on.

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Calling All Cosplayers: Project Secret Identity Returns to Dragon Con Print
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Monday, 31 August 2015 00:02

Project Secret Identity is back. 

EFF is returning to Dragon Con, the science fiction and fantasy convention in Atlanta, Georgia, for a Labor Day weekend of cosplay activism. This year’s privacy campaign will be even more sensational thanks to our partners at Access Now and the support of the Harry Potter Alliance, Southeastern Browncoats, and Gizmodo.

What: Project Secret Identity at Dragon Con

Who: EFF Activist Nadia Kayyali, EFF Investigative Researcher Dave Maass,  and EFF Staff Attorney Kit Walsh; Access Now’s Senior Legislative Manager Nathan White and U.S. Policy Manager Amie Stepanovich

When: Sept. 4 -7, 2015

Where: Atlanta, Georgia (Hilton Atlanta)

Costuming is a highly visible form of expression that simultaneously preserves anonymity. So, in many ways, cosplay represents the ultimate amalgam of privacy and free speech, both of which are constantly under threat. Dragon Con, as a fantasy convention renown for its cosplay and home to the Electronic Frontiers Forum, is the perfect venue for rallying the fandoms.

Project Secret Identity (online at asks cosplayers to pose for photos while bearing signs emblazoned with pro-privacy and Internet freedom slogans, such as “I Have a Right to a Secret Identity” and “Privacy is Not a Fantasy.”  If you’re at Dragon Con, stop by our table at the Hilton and we’ll snap a few shots. If you’re a cosplayer staying home, just submit your pictures online. All the photos will appear on the site, with the best of the best showcased here at EFF and on Gizmodo.

In addition to our own cosplaying, EFF and Access Now will participate in more than a dozen panels on digital freedom as part of the Electronic Frontiers Forum track. Our talks include examinations of domestic surveillance, net neutrality, car hacking, journalism in the post-Snowden era, and DIY government transparency. Bookmark our full schedule. 

Over at our tables at the Hilton concourse, our team can also give tips for protecting yourself online, help you figure out what surveillance police are using in your community, and walk you through the various kinds of regulatory proposals that could harm or help Internet freedom. It will also be a great opportunity to start or renew your membership.

You can also spot our contingent marching in the annual Dragon Con cosplay parade on Saturday morning.

More than 70 attendees participated in Project Secret Identity in 2014. Check out last year’s gallery of spectacular cosplayers

Related Issues: 

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Appeals Court Falls for Government’s Shell Game in NSA Spying Case Print
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Friday, 28 August 2015 06:26

The U.S. Court of Appeals for the D.C. Circuit’s opinion today in Klayman v. Obama is highly disappointing and, worse, based on a mistaken concern about the underlying facts. The court said that since the plaintiffs' phone service was provided by one subsidiary of Verizon—Verizon Wireless—rather than another—Verizon Business—they couldn't prove that they had standing to sue. The court sent the case back to U.S. District Judge Richard Leon to give the Klayman plaintiffs an opportunity to prove that their records were in fact collected. The appeals court did not rule one way or the other of the constitutionality of the mass collection program.

As an initial matter, recent releases by the government make clear that the plaintiffs' records were in fact collected. Earlier this month, in response to a Freedom of Information request from the New York Times, the government released documents confirming that it does indeed collect bulk telephone records from Verizon Wireless under Section 215. Specifically, the formally-released documents reference orders to Verizon Wireless as of September 29, 2010, when they had to report a problem to the Foreign Intelligence Surveillance Court.

This should mean that the plaintiffs records were collected, at least as of 2010, but likely long before and after. The government should give up its shell game here and admit the time frame that it collected the Klayman plaintiffs records, along with all other Verizon Wireless customers.

But more importantly, the government’s telephone records collection was, by design, a mass collection program. Famously, then NSA Director Keith Alexander told Congress that "you need the haystack to find the needle." Admittedly then, the records of millions of innocent Americans were collected.

Yet despite this, the court allowed itself to be blinded. The court declined to consider the critically important questions of whether the U.S. Constitution allows the government to secretly shift from targeted to mass surveillance of the telephone calls (and associations) of Americans. It surrendered its role to ensure that the law is justly interpreted and applied and that the government act within the Constitution. Instead, it endorsed the government’s argument that no public, adversarial court can review its actions unless those seeking review can prove with some certainty that they were one of the millions whose records were collected. The court thus joined the government in requiring that one challenging the mass collection perform an almost impossible task—proving the still secret details of an admitted mass surveillance program in order to have a court determine whether it is constitutional.

The ruling is a letdown, especially since the court seemed interested in addressing the underlying questions about the government's ability to collect the records during the oral argument in November 2014, in which I was allowed to participate on behalf of EFF and the ACLU. We'll have a later post explaining likely future steps in the case and how this fits in with the passage of USA FREEDOM Act. EFF will continue to fight to hold the NSA accountable for mass collection of Americans' private information. Our phone and Internet networks should be protected from unfettered government spying.

Related Issues: 
Related Cases: 

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Russia's Wikipedia Ban Buckles Under HTTPS Encryption Print
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Friday, 28 August 2015 05:39

Dueling forces of encryption and government censorship came to a head in Russia this week in the form of an order to block Wikipedia. One Wikipedia article in particular (about charas hashish) was deemed to run afoul of the country's restrictions on content related to drugs. This is just the latest in a deeply troubling campaign of censorship—but because the Wikimedia Foundation uses HTTPS-encrypted connections for all of its sites, the government was left with only the option of ordering the entire site blocked, or leaving the offending page accessible.

The Russian Wikipedia article on charas hashish.

That's because HTTPS encryption protects not just the contents of the communications between browsers and the web sites they're visiting, but also the specific pages on those sites—in other words, everything "after the slash" in a URL.

Contrast that to when you visit an unencrypted site, like a New York Times article: that connection can be monitored by your ISP, the network operator (like your employer, if you're on a work network), or even others on the same wireless connection. There are obvious privacy implications here—after all, that's a lot of people that can look over your shoulder—but also, if you combine that eavesdropping ability with a governmental power to mandate blocks, the result is censorship that can be very granular. Visits to a particular page can be identified and blocked; even keywords in the text of a web page can trigger censorship.

That leads to the argument that granular censorship is preferable in certain cases, because more material is allowed to stay up and accessible. A major counter-argument to that point has long been that blocking large chunks of the Internet is more disruptive, and not as easily enforced, and so less likely to happen at all. Extreme censorship measures are more visible: they encourage residents in those countries to note the existence of censorship, and learn about and adopt censorship circumvention technologies, which are in may cases also more secure against government snooping, and nudges governments away from blocking altogether.

These two arguments were both set forward when the Wikimedia Foundation was considering implementing HTTPS across all its sites. Ultimately, the policy preferred by supporters of the second argument prevailed, and Wikimedia adopted full HTTPS. This week's example of Wikipedia in Russia is one of the first few test cases of governments forced into an all-or-nothing blocking choice; fortunately, it provides at least anecdotal evidence that the theory works. After just a few hours of blocks, Russia reverted its policy, claiming the material had been taken down. (It hadn't, according to Wikipedia editors, though the title and URL of the page had been changed.)

This isn't the first time censorship efforts have been dialed back in the face of HTTPS leading to governments conspicuously overblocking. The government of China briefly suspended access to Github over a handful of software repositories, but relented in the face of public pushback. Similarly, the government of Iran has only occasionally blocked Google services, despite its now-discontinued Reader serving as a proxy for unfiltered news from the open web.

The case for news sites to adopt this kind of encryption, then, is obvious. Unfortunately, for a handful of reasons, the major outlets have been slow to do so. Independent publications like Techdirt and The Intercept were early adopters; The Washington Post became the first major general news organization to do so earlier this summer.

Of course, while HTTPS encryption and other censorship-resistant technologies can help, it would be an oversimplification to boil these issues down to purely technical questions. Countries can block foreign sites en mass, and encourage self-censoring domestic alternatives to emerge. Local sites are much more vulnerable not only to government demands to remove data, but more insidious forms of control. For instance, , Russia has also instituted a data retention mandate for sites, set to go into effect on September 1, which includes provisions that will oblige foreign sites to store their logs on local servers, or risk blocking.

Encrypting traffic on the wire is important, but it matters far less if law enforcement can demand you keep—and hand over—access records.That's one reason we oppose data retention mandates where they're proposed—including, recently, in Paraguay and Peru. It's also an important reminder to encourage more users to learn how to use anonymity software, like Tor, to better protect themselves from data collection. But the same calculus may well operate with Russia's data retention bill. Will Russia consistently enforce compliance, or will the economic and popular cost of blocking major websites stay their hand? Will foreign companies, out of fear of being locked out of Russia's market, decide to hand over their users' data to the Russian authorities? Or will they stand firm as Wikipedia did with https, and see the authorities blink?

Online censorship and surveillance are just one element in a pattern of human rights abuses. Web site operators and members of the online community bear an important responsibility to encourage the kinds of security measures that can protect people—and when facing off against invasive measures, may have more power than they realize.

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Read more... The Fastest, Most Impactful Tool to Fight the California Virtual Currency License Print
Written by Administrator   
Friday, 28 August 2015 05:12

Californians, please help us stop A.B. 1326 

We’re deeply concerned about A.B. 1326, a misguided virtual currency licensing proposal moving quickly through the California legislature. We’ve blogged about the problems with the bill, urged supporters to send emails to their legislators, and released a coalition letter from 17 companies and nonprofits to educate lawmakers about the issues with the proposed license. 

Today, we’re proud to join friends at and Fight for the Future in announcing a new campaign to stop the virtual currency license: No Bitcoin License.

No Bitcoin License is hosted by and uses CallPower technology to connect you to your state senator. If you are in California, just visit the website, enter your phone number, and you’ll be connected to your lawmaker’s office. There’s a super short script on the site for you to follow.

Visit No Bitcoin License.

Phone calls can make a huge difference in campaigns like this. State senators get contacted far less often than you would think. Even just 10 calls to a single state senator’s office can be highly influential. 

That means your decision to pick up the phone could be exactly what we need to slow down this bill, or stop it altogether.

Why should you care?

  • A.B. 1326 is so vague that it’s hard to know which companies and businesses it will affect;
  • A.B. 1326 is technically inaccurate;
  • Bitcoin experts haven’t had adequate opportunity to weigh in on the bill because there hasn’t been even one full informational hearing to discuss the merits of the proposal;
  • The bill grants sweeping authority to the Commission of Business Oversight to reject license applications—including provision license applications—without administrative appeal;
  • A.B. 1326 would implicate video game currencies and smart contracts; and
  • The bill's focus on a single technology, Bitcoin, will be illogical and ill-suited if applied to other virtual currencies, and thus threatens to chill innovation around current and future alternative virtual currencies. 

Worst of all, passing this bill now locks California into an early stage in the development of virtual currency technology, before we have a good sense of where the technology and its uses are headed.

We still have a chance to stop this bill. If you’re in California, please speak out. And if you’re not in California, please help spread the word. 

Visit No Bitcoin License.

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