The Electronic Frontier Foundation - Essay Example

? The Electronic Frontier Foundation is an organization that protects civil liberties with regards to electronic information. Founded in 1990, the organization proclaims to be on the cutting edge on free speech issues, privacy, consumer rights and innovation issues (eff.org). The EFF is made up of lawyers, activists, policy experts and technologists. The primary way that they work is that they defend individuals in court, bring and defend lawsuits, even taking on the United States government and large corporations (eff.org). Moreover, the EFF takes on legislation that they consider to be detrimental through their action center. The organization is a non-profit organization that relies upon donations for their existence. One of the major areas that EFF attends to is privacy rights. In 2008, the EFF challenged the NSA policy of wiretapping, suing the NSA to end the surveillance of Americans and hold the government officials accountable who pursue these measures. The two cases that they brought were Jewel v. NSA and Hepting v. AT&T. These cases involved a lawsuit against the NSA for directly conducting surveillance on ordinary Americans. Hepting v. AT&T involved a lawsuit against the telecommunications giant because it was helping the government in surveillance measures. These cases were dismissed due to governmental immunity, and is currently on appeal in the 9th Circuit (eff.org). The EFF has also argued in a Senate Judiciary Committee that warrantless searches of individuals’ laptops and other electronic devices are not considered to be a routine search, despite the fact that the Supreme Court found that border guards can conduct a routine search of people who are crossing the border. These are searches that can be conducted without a warrant or either a reasonable suspicion of any criminal wrongdoing. They also testified in front of the Senate Judiciary Committee that taking data from an individual’s laptop or other electronic device should be considered to be a seizure under the Fourth Amendment’s prohibition of searches and seizures (eff.org). Additionally, the EFF has urged the senate to put more oversight on border guards. EFF has also argued, successfully, in a Pennsylvania court that the information stored by cell phone providers as to the location of an individual is protected by the Fourth Amendment, therefore the government has to have a warrant based upon probable cause in order to obtain theses records. The government appealed this decision to the Third Circuit Court of Appeals, and this is currently being considered by this Court (eff.org). The EFF also has worked to protect e-mail privacy, stating that the Department of Justice’s policy of requiring an e-mail provider to save prospective e-mails with only a subpoena and a court order not based upon probable cause is illegal, as the government needs to, under the Fourth Amendment, obtain a search warrant based upon probable cause, and this warrant needs to describe exactly what it is that the government is trying to obtain. In this case, the EFF filed an amicus brief in the case, as the case was brought by Steven Warshak (eff.org). The EFF also has helped consumers by helping them get proactive. The way that they do this is by publishing an on-line guide for consumers that helps them understand what is acceptable and what is not when it comes to on-line and electronic issues. This is called Surveillance Self-Defense (SSD). In particular, this organization helps educate consumers about government spying on computers, as well as data that is obtained through electronic means such as cell phones, and communications stored by third parties (eff.org). Moreover, the EFF also has launched a program to aid people in foreign lands about their rights regarding privacy concerns (eff.org). Free speech is another broad issue that the EFF. They have resisted the misuse of the Digital Millennium Copyright Act. The DMCA gives providers immunity when they take down content, while not providing for a way to resist this. The EFF notes that there is a fair use doctrine that states that there are certain uses of copyrighted material that can be used legally. Examples of this are parodies and inserting news clips into video news reports (eff.org). The EFF also defended an animal rights group called “Showing Animals Kindness and Respect” (SHARK) when a rodeo group demanded that certain videos that demonstrated animal abuse be taken down, and these videos were taken down, even though the rodeo group did not have a copyright on these materials (eff.org). Another example is a lawsuit that was filed by radio personality Michael Savage against the Council on American-Islamic Relations, when the CAIR used clips of Savage’s shows in an attempt to criticize him. The lawsuit was dismissed because this was considered to be fair use, and Michael Savage’s lawsuit was groundless (eff.org). Moreover, the EFF has launched a Coder’s Rights Project. This is a project that protects innovation by protecting individuals who are researchers whose work is inhibited or prevented by serious legal challenges. To this end, the EFF defended three MIT students who were ordered not to give a presentation about security vulnerabilities in the Boston Transit System. This case was settled, with both sides agreeing to work together to make the Boston Transit System better and safer (eff.org). The EFF also protects intellectual property rights. One example of this is the “first sale doctrine.” This is a doctrine that protects individuals who, after lawfully purchasing a CD, book or DVD, can sell, give away or lend it without permission from the copyright owner. EFF defended Troy Augusto, who sold, on Ebay, promotional CDs that he legitimately bought from used record stores. In a lawsuit brought against Mr. Augusto by Universal Music Group, EFF defended Mr. Augusto and got the case against him dismissed (eff.org). Innovation is another broad area that the EFF gets involved in. One of these areas is in patent-busting, when these patents threaten internet innovation. Part of this is patent reform. Another is the argument that software developers should not be held liable for misuse of copyrighted information when the developers did not actively promote this misuse. This case was a case against Limewire, which is a popular file-sharing website (eff.org). Conclusion The EFF is a useful organization in that there is a need to protect privacy, patents, innovation and free speech. Especially in an age where there are threats to these aspects on-line communication on a constant basis. That said, the federal government also has legitimate reasons to do what they do. The federal government is working hard to protect our country from another attack, which is why it might be important to search certain individuals’ laptops, for example. The federal government must have some kind of suspicion that something criminal is afoot to go through the process of searching these laptops – they do not do things randomly. Therefore, thwarting this might be detrimental to our national security. Likewise warrantless wire-tapping – the government has their reasons for doing this, and these reasons have to do with national security, which is something that should be of primary importance. It would be one thing if the government is conducting these kinds of means randomly, but that is not the case – the government has to have some kind of suspicion that there was something criminal, or else they would be putting everybody under surveillance. Therefore, privacy needs should be balanced with the government’s needs to keep us all safe. NSA Wiretapping and the PATRIOT Act Electronic surveillance is established under the auspices of the USA PATRIOT ACT, which was enacted in the United States after 9/11 (Herman, 2005, p. 3). There are four provision of the USA PATRIOT ACT the implicate privacy rights, two of which will be discussed here. The first of these provision is Section 215, which authorizes the government to “acquire records and intangible things from custodians – including educational or financial institutions, Internet service providers, or even indignant librarians – under a court order” (Herman, 2005, p. 17). Any record at all can be obtained under this provision, without a showing of suspicion (Herman, 2005, p. 18). Once the affiant states that the information sought is relevant to a terrorism investigation, this information may be obtained ex parte (Herman, 2005, p. 18). What's more, nobody can disclose to the target that this information is being sought, and there is no time limit on this “gag rule.” (Herman, 2005, p. 19). The National Security Agency (NSA) began warrantless wiretapping, without judicial oversight, in 2002 under the tutelage of President George Bush, seemingly in violation of the Foreign Intelligence Surveillance Act, which required court orders before engaging in such surveillance. This has enraged privacy advocates. (Adler, 2007, p. 2). This was a secret program that engaged in electronic surveillance without prior judicial authorization. (Avery, 2008, p. 1). The President justified this act by stating that it was part of a “Terrorist Surveillance Program,” (TSP) and claimed executive privilege in doing so. (Sims, 2006, p. 101). These actions were deemed illegal by many commentators and privacy advocates, who states that the FISA clearly requires judicial oversight, consistent with the Fourth Amendment's prohibition on unreasonable searches and seizures. The FISA states that “the United States must seek authorization from the FISA court if electronic surveillance is to be conducted within the United States of if communications of United States persons within the United States are being targeted.” (Sims, 2007, p. 167). The administration stated that the program intercepted calls between citizens of the United States and Al-Quaeda operatives. While these communications do not require a court order if the target is outside of the United States, it does require one of the target is in the United States. (Sims, 2007, p. 168). The Administration's justification for these warrantless searches is that they are authorized by the Authorization for Use of Military Force (AUMF), or, alternatively, the FISA is unconstitutional, two theories that have been debunked by privacy advocates and courts alike. (Sims, 2007, pp. 168-169). The precedent that the Administration set for warrantless wiretapping is dangerous and illegal. It seems as if anybody can be warrantlessly wiretapped under this abuse of power, if a person is even tangentially related to terrorists organizations. Kennedy & Swire contend that broadening the state statutes to include terrorism makes these statutes ripe for abuse, as shown by the federal tendency to define terrorism and terroristic activities loosely to encompass “unpopular political expression” that is equated with support for terrorism. (Kennedy, C. & Swire, P., 2003, p. 110). Conclusion As stated above, warrantless wiretapping seems to be important to maintaining national security. That said, if it is abused, it can set a dangerous precedent, as Kennedy and Swire pointed out. If the government uses the wiretapping to chill political expression, then this is one way that the warrantless wiretapping becomes abusive and should not be done. The government and the individuals’ rights should therefore be balanced. On-Line File Sharing A major source of copyright infringement is the use of peer to peer software to share files with other users – commonly called “illegal downloading.” This really is a problem, in my view, much more so than sampling. Internet piracy is the cause of falling CD sales across the board, as sales have steadily fallen year to year since piracy began. (Music Industry Blames Huge Illegal Download Market for Ever-falling Sales). The largest academic survey, commission by the University of Hertfordshire found that teenagers and students have, on average, more than 800 illegally copied songs on their digital music players. (Sabbagh, 2008). One of the problems with illegal downloads is that young people, who make up a large percentage of the illegal downloaders, are simply confused about copyright laws. They learn how to operate their peer-to-peer music sharing programs while being confused about what is lawful and what is not. (Palfrey et al., 2009, p. 80). The young, called “Digital Natives” tend to feel that the law is unreasonable, and they also tend to be unaware that what they are doing is illegal. (Palfrey et al., 2009, p. 80). For instance, the young people who were interviewed by Palfrey, et al. found that the “digital natives” who were interviewed found that the majority of young people did not understand the nuances of copyright law, such as the participants how believed that peer-to-peer file sharing was illegal and wrong, but actions such as burning CDs was acceptable and legal. (Palfrey et al., 2009, p. 85). The young people also did not understand that copyrighted content that is available on YouTube is illegal to upload and play. They further did not see their role in the illegal copyright infringement – that Grokster and other file-sharing sites, or the person who posts illegal videos, are the only ones who are to blame for copyright infringement, not the people who perpetuate these infringements by downloading from the illegal sites or downloading the illegal videos and posting them to their Facebook Page. (Palfrey et al. 2009, p. 86). They felt that it wasn't a copyright infringement if, say, less than 2,000 people see it, and rationalize it by stating that illegal downloads are helpful for the artists, as it gives them additional publicity. (Palfrey et al. 2009, p, 86). There has been a number of cases that concern file-sharing. One such case is MGM v. Grokster, a United States Supreme Court case that states that content owners can not only sue the individuals who illegally download music, but also companies that distribute the “software which facilitates illegal music downloading”. (Beckerman-Rodau, 2006, p. 922). The court looked at a variety of factors in making their unanimous decision, including that Grokster knew that their software was used for peer-to-peer file sharing; that Grokster enabled its user to download copyrighted material, and promoted this to users; that Grokster made no effort to impede the downloading of copyrighted material; and that their business model depended upon users downloading copyrighted material – Grokster's revenue was exclusively from advertisers on its site, and these advertising rates increased with the number of users. Therefore, the more users downloading copyrighted material, the better. (Beckerman-Rodau, 2006, p. 930). Conclusion On-line file sharing, which includes not just swapping music, but swapping DVDs and other electronic resources over the internet is a destructive practice that has a chilling effect on the entertainment industry. This is one area of copyright law that should be more rigidly enforced, because these industries are losing money to this practice, which, in turn, means that upcoming artists might not have the support that they would have had. On-Line Terms of Service There are issues that involve data collecting, which means that companies collect data on individuals, data that can be used against these individuals and can be stolen, which opens these individuals open to have their data stolen. There are a number of different remedies for this, and one is for the customer to have knowledge that this is occurring. To be successful at doing this, the customer would have to be sophisticated, with considerable expertise in privacy issues, and would have to put in substantial time and effort. This is such a daunting task that most do not undertake it, and hope that somebody else will hold the company's feet to the fire. (Swire). One way to get around these issues is for companies to provide a privacy policy to the consumers who are doing business with them. A privacy policy “is a document in which a company discloses the manner in which it deals with the personal identifying information of its customers and other website visitors.” (Sprague & Ciocchetti, 2009, p. 118). Companies can, and should, post these policies on their websites, in plain language, and these policies should contain information that states how that company collects, stores and uses PII (Sprague & Ciocchetti, 2009, p. 118). This would provide the necessary transparency so that consumers can discern what each businesses privacy policy is and how each business uses personal information, and this would presumably help the “pure market” model to succeed. That said, there are challenges that face these disclosures. The first is that consumers do not really read them or take them seriously (Sprague & Ciocchetti, 2009, p. 121). The second is that these disclosures may be amended at any time, and these amendments are considered binding even on the consumers who entered into business under the previous privacy terms. (Sprague & Ciocchetti, 2009, p. 121-122). A particularly egregious example of this is that AT& T revised its privacy policy to state that that the PII collected is now considered the property of AT&T. This amendment is binding on the individuals who signed up under the previous privacy policy (Sprague & Ciocchetti, 2009, p. 127). The third is that companies do not want to waste valuable space on their home page with a privacy policy, so they post a link to their privacy policy. Users generally do not take the extra step to access these links (Sprague & Ciocchetti, p. 126). The fourth is that the privacy policies generally have loopholes and “wiggle room.” (Sprague & Ciocchetti, p. 126). Some obvious remedies to these problems include putting the disclosures into plain and clear language, avoiding legalese, and putting the disclosures into layers that are short and summarized (Sprague & Ciocchetti, p. 126). “Plain language”means avoiding the following: “long sentences; passive voice; weak verbs; superfluous words; legal and financial jargon; numerous defined terms; abstract words; unnecessary details; and unreadable design and layout.” (Sprague & Ciocchetti, p. 132). Another remedy is to put the privacy policy on the home page, display it prominently, AND post a link that is labeled with the word “privacy” in large letters so that it stands out (Sprague & Ciocchetti, p. 132). The third remedy is that companies must prominently disclose all privacy amendments on its website, and contact all consumers who signed up under the previous privacy policy by e-mail (Sprague & Cochetti, p. 130). Conclusion These on-line disclosures are one way that customers can understand their rights with regards to data sharing. However, in order for this to work, customers actually have to read these disclosures and care about what they are saying. Otherwise, these on-line disclosures are protecting nobody but the actual website that is displaying them. Sources Used Avery, M. 2008, “The Constitutionality of Warrantless Electronic Surveillance of Suspected Foreign Threats to the National Security of the United States,” Legal Studies Research Paper Series, Suffolk Law School, web accessed 20 February 2011, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1139072 Electronic Frontier Foundation. Web accessed 20 February 2011, available at: http://www.eff.org/ Herman, S. 2005, “The USA PATRIOT Act and the Submajoritarian Fourth Amendment,” Brooklyn Law School Legal Studies Research Paper, No. 34. Kennedy, C. & Swire, P. 2003, “State Wiretaps and Electronic Surveillance After September 11,” Hastings Law Journal, vol. 54. “Music Industry Blames Huge Illegal Download Market for Ever-Falling Sales.” Telegraph.co.uk. web accessed 22 February 2011. Available at: http://www.telegraph.co.uk/finance/newsbysector /mediatechnologyandtelecoms/media/7048795/Music-industry-blames-huge-illegal-download-market-for-ever-falling-sales.html Palfrey, J., Gasser U., Simun, M. and Barnes, R. “Youth, Creativity and Copyright in the Digital Age.” International Journal of Learning and Media. Vol. 1, No. 2. June 2009: 79-97. Sabbagh, D. “Average Teenager's iPod has 800 Illegal Music Tracks.” 16 June 2008. Web accessed 20 February 2011. Available at: http://technology.timesonline. co.uk/tol/news /tech_and_web/personal_tech/article4144585.ece Sims, J. 2007, “How the Bush Administration's Warrantless Surveillance Program Took the Constitution on an Illegal, Unnecessary, and Unrepetentant Joyride, UCLA Law Journal of International and Foreign Affairs, vol. 12, no. 163, pp. 163-179. Swire, P., “Markets, Self-Regulation, and Government Enforcement in the Protection of Personal Information.” Web accessed 20 February 2011. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=11472 Read More