By Cindy Cohn and Michael Rosenbloom
As 2018 draws to a close, we’ve gathered together some of EFF’s key legal wins this year. Some of these wins are only stops along the way to a larger goal, but each is hard fought, whether we’re serving as counsel or amicus curiae.
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Every one of these victories helped move the needle of law in the direction of protecting your privacy and freedom of expression.
EFF Helps Protect Against Location Tracking
Carpenter v. United States: When the United States Supreme Court quotes you in upholding privacy, that’s a big win. The Supreme Court cited EFF’s amicus brief in its landmark Carpenter decision in June, holding that that the Fourth Amendment protects cell phone location information. In an opinion by Chief Justice Roberts, the Court recognized that location information, collected by cell providers like Sprint, AT&T, and Verizon, creates a “detailed chronicle of a person’s physical presence compiled every day, every moment over years.”
Perhaps the most significant part of the ruling is its explicit recognition that individuals can maintain an expectation of privacy in information that they provide to third parties. To build on this momentum, we’ve created a Surveillance Litigation Director position to head up this work, supported by EFF’s civil liberties legal team, with EFF Senior Staff Attorney Jennifer Lynch stepping into the role. Lynch will lead EFF’s tracking and development of ongoing legal cases to create the right opportunity, with an aim toward further codifying strong Fourth Amendment protections for user data collected by devices ranging from fitness trackers to license plate readers to smart meters.
Other location privacy wins:
EFF Defends Innovation and Transparency in Patents
Personal Audio: After five years, EFF achieved final victory in defending the rights of podcasters nationwide from a wrongly-issued patent. In 2013, EFF filed an inter partes review petition with the USPTO, challenging claims in patent US 8,112,504. Personal Audio, the patent-holder, claimed that the patent covered effectively all podcasting technology. After more than a thousand people donated to our Save Podcasting Campaign, we successfully persuaded the USPTO that many examples of podcasting existed years before Personal Audio’s claims, and got those claims invalidated. On May 14, 2018, the Supreme Court declined to hear Personal Audio’s appeal.
Other Patent Victories:
EFF Helps Protect Against Device Searches at the Border
Alasaad v. Duke: EFF has long recognized that the Constitution must extend to the U.S. border, especially since the devices we travel with now carry our most intimate information. In September 2017, we filed a lawsuit along with our co-counsel the ACLU, challenging border device searches on First and Fourth Amendment grounds. We represent 11 travelers from a wide variety of professional, religious, ethnic, and national backgrounds. On May 10, 2018, the court issued a groundbreaking opinion denying the government’s motion to dismiss. The court ruled that (1) our clients have standing, meaning they are the right parties to bring this case, and (2) we stated legal claims that government’s conduct violates the First and Fourth Amendments. The case has moved on to the discovery process. This initial win sets the stage for ensuring that your device privacy is protected on the border.
EFF Protects Your Right to Free Speech in Domain Names
Fucknazis.us: The “seven dirty words” should not be a censorship list for domain names. EFF represented the owner of the website fucknazis.us, which had been suspended by the .us domain name registrar, because the domain name, fucknazis.us, contained a “dirty” word. We sent a letter to Neustar, the domain name registrar, threatening a lawsuit on First Amendment grounds, since the .us domain is sponsored by NTIA, part of the U.S. Department of Commerce. Since the federal government is involved in the administration of the .us domain, that makes that domain a government forum, subject to free speech protections.
After receiving the letter, Neustar restored the fucknazis.us domain name to our client, and changed their policy to no longer suspend or ban domains for containing “dirty” words in their names.
Other Free Speech Wins:
- Imdb v. Harris District Court. (We supported a win at the District Court with an amicus brief. The case is on appeal to the Ninth Circuit and we have filed an amicus brief there as well.)
EFF Helps Protect Fair Use Online
Lenz v. Universal: After more than 11 years, EFF and Universal Music Publishing Group reached a favorable settlement in 2018 in what was often known as the “Dancing Baby” case. In 2007, YouTube removed a 29-second video posted by Stephanie Lenz of her young son dancing, with “Let’s Go Crazy,” by Prince, playing in the background. This video was an obvious fair use. Representing Lenz, EFF filed a lawsuit against Universal, to set a precedent that copyright holders cannot use the Digital Millennium Copyright Act (DMCA) to quickly remove such fair uses.
During the litigation, the Ninth Circuit made a key ruling that still stands today, that a copyright holder had to consider whether a work including copyrighted material is a fair use before sending a takedown notice.
Other Copyright Victories:
EFF Helps Free the Law
ASTM v. Public Resource: We believe that the laws that we all must follow should be available for all to know. EFF represented Public.Resource.Org (“PRO”) against several organizations which had created technical standards which were incorporated into state laws. When PRO wanted to publish the text of those standards, which had become binding state law, those organizations got an injunction against PRO, arguing that they held the copyright in those laws.
In July, the Court of Appeals for the D.C. Circuit dissolved the injunction against PRO. Although the court did not address whether those laws were in fact copyrightable, it did rule that PRO’s act of publishing the law was likely to be a fair use even if the laws were copyrighted. The Appeals court then remanded this case back to the District Court to take another look at fair use, putting “a heavy thumb on the scale in favor of an unrestrained ability to say what the law is.”
EFF Helps Fight Overbroad Use of Computer Crimes Laws
Defending the Fourth Amendment
Naperville Smart Meter Assoc. v. Naperville: Smart energy meters record a home’s energy usage with far more precision than traditional meters. While this leads to increased energy efficiency, it also lets whoever has access to that data unprecedented power to understand what is happening inside your home. EFF filed an amicus brief in Naperville Smart Meter Assoc. v. Naperville, arguing that the government’s collection of smart meter data is a search, and thus subject to Fourth Amendment protections. The Seventh Circuit agreed, recognizing that because smart meters record thousands of usage readings per month, they implicate the Fourth Amendment in ways that traditional meters do not.
The Stranger Unsealing Case: The United States government routinely asks courts for electronic surveillance warrants and other orders under seal. Although custom and the First Amendment general require judicial records and proceedings to be open to the public, these materials are kept secret, meaning that the public cannot scrutinize or challenge them if the government abuses its powers.
In November 2017 we filed a petition to unseal some of these secret surveillance materials on behalf of Pulitzer Prize-winning alternative weekly newspaper The Stranger. Because of our challenge, the U.S. Attorney’s Office and the Clerk of the Court in Seattle agreed to create new standards for docketing and unsealing these types of surveillance orders. This gives us the opportunity to understand how many sealed requests the government is making and ask for other documents to be unsealed.
Webster v. Hennepin: In April, the Minnesota Supreme Court ruled that a government agency cannot simply ignore requests that it considers burdensome. In 2015, EFF and MuckRock began a campaign to track mobile biometric technology use by law enforcement. Tony Webster requested that Hennepin County law enforcement search their email databases for several keywords, including “face recognition” and “iris scan.” Law enforcement ignored his request, and in the ensuing litigation, EFF submitted a brief in support of Webster’s request.
The Minnesota Supreme Court in its ruling also let stand an intermediate appellate court ruling that a Public Records Act request asking for basic keyword searches were not burdensome.
Other Government Transparency Victories:
EFF Helps Create Governmental Accountability with Digital Data
Law Enforcement Fake Facebook Profiles: Since Facebook has decided that users must use a real or “authentic” name “to create a safe environment where people and trust and hold one another accountable,” it is critical that this policy applies to everyone, including the police. Undercover police officers from many departments create accounts with fake names and information for surveillance purposes. After EFF raised this issue, Facebook sent a warning to the Memphis Police Department, which had been revealed in a lawsuit to have used fake profiles to spy on activists.
Other Government Accountability Victories:
Together with you, we have made some big and small wins this year to protect your civil liberties, both online and off. We look forward to working to defend your rights in 2019.