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Archive for the ‘Civil Liberties’ Category

US Government challenged on Twitter records access – CNN.com

From Larry Lazo, CNN
February 16, 2011 — Updated 0251 GMT (1051 HKT)

* ACLU, Electric Frontier Foundation have filed motions in federal court
* One motion seeks to unseal court records on attempts to collect info on Twitter users
* A second motion seeks to overturn order requiring Twitter to provide user info to feds
* Civil rights groups represent three people who are focus of government investigation

Washington (CNN) — Two civil liberties groups have squared off against the government as investigators probing the WikiLeaks scandal seek to gain access to Twitter records.

Lawyers for the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) appeared in federal court in Alexandria, Virginia, Tuesday representing three people government investigators are targeting.

Two motions have been filed in the case. The first aims to unseal court records on attempts by the government to collect private records from people holding accounts with Twitter, and the second seeks to overturn a previous court order that requires Twitter to provide information about its users to the government. Defense lawyers say the government’s demand for the records violates First Amendment speech rights and Fourth Amendment privacy rights.

Birgitta Jonsdottir, a member of Iceland’s parliament, is the most high-profile of the three defendants. The other two people represented in court were WikiLeaks associates Jacob Applebaum and Rop Gonggijp. The three defendants are believed to have helped prepare a classified U.S. Army video that was published on the WikiLeaks website last year.

Defense attorneys argued that the government has not sufficiently demonstrated the need for secrecy when it comes to keeping court documents sealed. They also question the justification for the government wanting IP addresses pertaining to their clients’ use on Twitter.

The government said looking at IP addresses is no different than subpoenas of phone records. The ‘defendants are tying together privacy in the home with public movements,’ said Assistant U.S. Attorney John Davis. ‘IP addresses do not show location with precision,’ he added.

The government says its investigation is not about politics or defendants’ associations with certain invidividuals. The government did not disclose why it is seeking information on the people in question in addition to the others in the still-sealed court documents. But they did say a person’s use of Twitter is fair game and their wanting to know about it is justified.

‘Tweets are public statements,’ Davis said.

U.S. Magistrate Theresa C. Buchanan appeared to be persuaded by the government’s argument on privacy concerns, telling defense attorneys, ‘There is no expectation of privacy when using Twitter.’ Having said that, Buchanan said she would take both arguments under consideration.

The WikiLeaks website is behind the largest-ever intelligence leak in American history. Hundreds of thousands of sensitive documents have been posted on the site. Everything from details about classified military operations to commentary about various foreign heads of state has been posted on WikiLeaks.org.

Bradley Manning, a U.S. Army private suspected of being involved in the scandal, is being held in solitary confinement at the Marine Corps base in Quantico, Virginia. He is facing eight counts of violating U.S. Criminal Code for allegedly leaking a secret military video from the Iraq war that was posted on the WikiLeaks website.

WikiLeaks founder Julian Assange is in London and is fighting extradition to Sweden to face sex charges brought against him by two women.

EFF, Public Citizen And ACLU Ask Judge To Quash Mass Subpoenas From US Copyright Group: “While companies like Verizon apparently won’t stand up to protect their users’ rights against the ridiculous and overly broad mass copyright infringement lawsuit filings made by a group called US Copyright Group (really a DC-based lawfirm called Dunlap, Grubb and Weaver), Time Wadrner Cable is pushing back, but mainly on procedural issues — not in any way to stand up for the rights of those being sued. Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out.

Those three organizations filed an amicus brief with the court in the Time Warner Cable case, where they point out that there are multiple reasons why the subpoenas should be quashed. Among the many problems with the process used by USCG are the ideas of suing thousands of people in a single lawsuit and all in Washington DC. Obviously, this makes it easier and cheaper for Dunlap, but it’s not how the legal system is supposed to work. First, it only makes sense that each lawsuit should be filed individually, as each involves different circumstances. Second, they should be filed in the proper jurisdiction, not in DC. As the briefing notes:

This Court cannot consider this case unless it has personal jurisdiction over the Doe
Defendants, and it is Plaintiff’s burden to show that such jurisdiction exists. The Constitution
imposes that burden on every plaintiff as a fundamental matter of fairness, recognizing that no
defendant should be forced to have his rights and obligations determined in a jurisdiction with
which he has had no contact. These requirements ‘give[ ] a degree of predictability to the legal
system that allows potential defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them liable to suit.’ World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

Plaintiff has not met this burden. Instead, the very information upon which Plaintiff
relies as a basis for seeking the identity of the Doe defendants — their Internet Protocol (IP)
addresses — indicates that few, if any, reside in this District. If, as it appears, the vast majority of
the Doe defendants do not have sufficient minimum contacts with this jurisdiction to satisfy due
process, the Court should quash the subpoena for information about out-of-district defendants.

….

Requiring individuals from across the country to litigate in this District creates exactly
the sort of hardship and unfairness that the personal jurisdiction requirements exist to prevent. It
requires the individuals urgently to secure counsel far from home, where they are unlikely to
have contacts. In this particular instance the hardship is very clear. When the underlying claim is a single count of copyright infringement, the cost of securing counsel even to defend a
defendant’s identity is likely more than the cost of settlement, and possibly even more than the
cost of judgment if the Defendant lost in the litigation entirely.

As for lumping all of the lawsuits into a single filing, the brief shows that courts have rejected this approach in the past as unreasonable and should do so again here:

There is little doubt that Plaintiff’s joinder of more than 4,500 defendants in this single
action is improper and runs the tremendous risk of creating unfairness and denying individual
justice to those sued. Mass joinder of individuals has been disapproved by federal courts in both
the RIAA cases and elsewhere. As one court noted:

Comcast subscriber John Doe 1 could be an innocent parent whose internet access
was abused by her minor child, while John Doe 2 might share a computer with a
roommate who infringed Plaintiffs’ works. John Does 3 through 203 could be
thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs’ property and
depriving them, and their artists, of the royalties they are rightly owed. . . .

Wholesale litigation of these claims is inappropriate, at least with respect to a vast
majority (if not all) of Defendants.

BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004)
(severing lawsuit involving 203 defendants).

Rule 20 requires that, for parties to be joined in the same lawsuit, the claims against them
must arise from a single transaction or a series of closely related transactions. Specifically:

Persons . . . may be joined in one action as defendants if: (A) any right to relief is
asserted against them jointly, severally or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will
arise in the action.

Fed. R. Civ. P. 20. Thus, multiple defendants may be joined in a single lawsuit only when three
conditions are met: (1) the right to relief must be ‘asserted against them jointly, severally or in
the alternative’; (2) the claim must ‘aris[e] out of the same transaction, occurrence, or series of
transactions or occurrences’; and (3) there must be a common question of fact or law common to
all the defendants. Id.

Joinder based on separate but similar behavior by individuals allegedly using the Internet
to commit copyright infringement has been rejected by courts across the country. In LaFace
Records, LLC v. Does 1-38, No. 5:07-CV-298-BR, 2008 WL 544992 (E.D.N.C. Feb. 27, 2008),
the court ordered severance of lawsuit against thirty-eight defendants where each defendant used
the same ISP as well as some of the same peer-to-peer (‘P2P’) networks to commit the exact
same violation of the law in exactly the same way. The court explained: ‘[M]erely committing
the same type of violation in the same way does not link defendants together for purposes of
joinder.’ LaFace Records, 2008 WL 544992, at *2. In BMG Music v. Does 1-4, No. 3:06-cv-
01579-MHP, 2006 U.S. Dist. LEXIS 53237, at *5-6 (N.D. Cal. July 31, 2006), the court sua
sponte severed multiple defendants in action where the only connection between them was
allegation they used same ISP to conduct copyright infringement.

The brief also takes issue with the evidence that Dunlap presents in the USCG filings:

Moreover, Plaintiff provides no specific evidence other than its summary declarations to
establish that its investigation was done for each Doe. And such evidence ought to be readily
available, including screen shots showing the IP addresses of the Doe defendants so the Court
can see that the addresses submitted to the Court match those discovered during the
investigation, copies or real-time capture of the activities of the ‘proprietary technologies’ used,
and shots of the P2P server logs that to which Plaintiff apparently had access. Without those, the
declarations merely describe downloading activity in general, and fail to provide the Court with
real information linking each of the individuals sued to the alleged infringement.

This is a big concern because Dunlap and USCG are seeking to reveal private information based on incredibly flimsy evidence:

Robust protection for the right to engage in anonymous communication — to speak, read,
view, listen, and/or associate anonymously — is fundamental to a free society. See, e.g., Talley v.
California, 362 U.S. 60 (1960) (recognizing the First Amendment right to communicate
anonymously); McIntyre v Ohio Elections Comm’n, 514 U.S. 334 357 (1995) (same;
‘Anonymity is a shield from the tyranny of the majority.’); Lamont v. Postmaster General, 381
U.S. 301 (1965) (recognizing the First Amendment right to receive ideas in privacy). This
fundamental right enjoys the same protections whether the context for speech and association is
an anonymous political leaflet, an Internet message board or a video-sharing site. See Reno v.
ACLU, 521 U.S. 844, 870 (1997) (there is ‘no basis for qualifying the level of First Amendment
scrutiny that should be applied to’ the Internet).

Courts in this District have recognized that First Amendment protections extend to the
anonymous publication of expressive works on the Internet even where, as here, that publication
is alleged to infringe copyrights. In re Verizon Internet Servs. Inc., 257 F. Supp. 2d 244, 260
(D.D.C.), rev’d on other grounds, 351 F.3d 1229 (D.C. Cir. 2003) (hereinafter ‘Verizon’); see
also UMG Recordings, Inc., v. Does, No. 06-0652 SBA, 2006 WL 1343597, at *2 (N.D. Ca.
March 6, 2006) (citing Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564
(S.D.N.Y. 2004)). As the court in Sony noted:

Arguably, however, a file sharer is making a statement by downloading and
making available to others copyrighted music without charge and without license
to do so. Alternatively, the file sharer may be expressing himself or herself
through the music selected and made available to others. Although this is not
‘political expression’ entitled to the ‘broadest protection’ of the First
Amendment, the file sharer’s speech is still entitled to ’some level of First
Amendment protection.’

326 F. Supp. 2d at 564 (quoting Verizon) (citations omitted). The Sony court continued:
‘Against the backdrop of First Amendment protection for anonymous speech, courts have held
that civil subpoenas seeking information regarding anonymous individuals raise First
Amendment concerns.’

No one is arguing that a legitimately filed lawsuit shouldn’t entitle USCG to get the right to an individual’s information. The issue is that not nearly enough evidence is presented in these cases, and what is presented is done in a way that does not allow an individual to protect their First Amendment rights. This destroys the basic balance that the courts have established to permit such lawsuits to go forward.

The filing is an important one, and it’s unfortunate that it had to come from three public interest groups rather than the ISPs themselves. In an email from Verizon PR, in response to a question on this issue from reporter Dave Burstein, Verizon PR gave the ‘we’re just following orders’ response, and tries to suggest it goes above and beyond by giving their customers a week or less of notification to fight this on their own. Verizon (and Time Warner Cable) could be making these same arguments on behalf of their customers, and it’s a shame that they have not and, in fact, have handed over information on such flimsy proof in such questionably filed lawsuits.

Permalink

(Via Techdirt.)

EU Parliament calls for internet rights charter: “

And individual control of data

Internet users should be able to demand that their information is removed from company systems even if it was collected with their consent, the European Parliament has said. The Parliament has also called for a charter of individuals’ internet rights.…

“

(Via The Register – Public Sector.)

Mucky private chat could be illegal soon: “

Risky encounters of the IRC and Twitter kind

Could 2010 be the year when the authorities finally clamp down on the internet – and in the process abolish some fundamental liberties we have been taking for granted for a very long time? The answer from two cases – one now over, though possibly subject to appeal, the other going forward to a full hearing later this year – could be a very worrying affirmative.…

“

(Via The Register – Public Sector.)

This speech will be delivered in Strasbourg on Thursday, 08 October, 2009

Intervention Speech for the Cross-Border Internet: Consultation meeting organised by the Council of Europe, Strasbourg, 8-9 October 2009.
By Dr. Yaman Akdeniz, Associate Professor in Law, Faculty of Law, Istanbul Bilgi University.

It is a great honour to be here today in Strasbourg at the Council of Europe, and to be very close to the European Court of Human Rights. For me, as an academic working in the field of human rights and new media, in particular with regards to legal and policy issues surrounding the Internet since the mid 1990s, the role of both the Council, and the European Court has been crucially important.

I recently attended the 1st Council of Europe Conference of Ministers responsible for Media and New Communication Services A new notion of media? which took place in Reykjavik, Iceland (28-29 May 2009). It was noted by the Reykjavik Political Declaration document that “there is ongoing concern about the effective implementation in practice of Council of Europe standards on freedom of expression and information and freedom of the media.” (paragraph 9) I do strongly share these concerns.

New media historically face suspicion and are liable to excessive regulation as they spark fear of potential detrimental effects on society. For example, this has proved true for the publication and transmission of sexually explicit content through the printing press, the telegraph, telephone, post, cinema, theatre, radio, television, satellite, and video.

Today, many states are reacting negatively to the availability and dissemination of certain types of content through the new media, in particular through the Internet. Today, there remains major concern about the availability of sexually explicit content including child pornography, racist content, hate speech, terrorist propaganda, and documents related to terrorism, as well as pirated content on the Internet. Such threats resulted and continue to result with state intervention (including in the Council of Europe region) through the development of regulatory, self-regulatory, as well as technological solutions.

However, there remains growing concern about the impact of some of the regulatory solutions adopted at state level or actions taken by the Member States of the Council of Europe on fundamental human rights as enshrined by the European Convention on Human Rights.

Based on the limited effectiveness of state laws, a number of states started or starting to introduce policies to block access to websites or other content on the Internet deemed illegal which are outside their jurisdiction. However, blocking policies are not always subject to due process principles, decisions are not necessarily taken by the courts of law, and often administrative bodies or hotlines decide which content or website should be subject to blocking. Often blocking policies lack transparency, and the administrative bodies lack accountability. Therefore, increasingly, the compatibility of blocking action is questioned with regards to the fundamental right of freedom of expression. There could be a breach of Article 10 if blocking measures or filtering tools are used at state level to silence politically motivated speech on the Internet, or the criteria for blocking or filtering is secret, or the decisions of the administrative bodies and hotlines are not publicly made available for legal challenge.

The public’s right to receive information provided by mass media is widely accepted in international law. Indeed the European Court of Human Rights established that “not only does the press have the task of imparting such information and ideas, the public also has a right to receive them,” and to receive and impart information is a precondition of freedom of expression. If as the European Court of Human Rights established, freedom of expression is “one of the basic conditions for the progress of democratic societies and for the development of each individual,” the Internet is probably the best venue to realise democracy and development of each individual.

Bearing in mind that alternative views could find a more open platform on the Internet, freedom to seek and receive information and ideas, should especially be underlined as the burden on the receivers will be higher than ever if States adopt blocking and filtering policies. As was stated by the Reykjavik Political Declaration efforts have to be increased to ensure that fundamental human rights such as freedom of expression as well as privacy of communications, underpinned by the rule of law, do not fall victims to such circumstances.

Finally, I note that increasingly, there is more emphasis on involving all stakeholders (both public and private) and relevant intergovernmental and international organisations within the Internet governance models and debate. Undoubtedly, governments do have authority over public policy, while the private sector (Internet industry + the ISPs) have expertise with regards to technical issues and infrastructure. Societal, community, and human rights issues are addressed by the civil society representatives and organisations. International organisations such as the Council of Europe can co-ordinate and facilitate the development of standards together with all the relevant stakeholders. I am therefore confident that the concerns that I raise today will be addressed through the future work of the Council of Europe.

Dr. Yaman Akdeniz (LLB, MA, PhD), Associate Professor, Faculty of Law, Istanbul Bilgi University; Visiting Senior Research Fellow, School of Law, University of Leeds. Akdeniz is also the founder of Cyber-Rights.Org (http://www.cyber-rights.org) based in the UK, Cyber-Rights.Org.TR (http://www.cyber-rights.org.tr) based in Turkey, and the co-founder of BilgiEdinmeHakki.org (http://www.bilgiedinmehakki.org), a pressure group working in the field of freedom of information law in Turkey. His recent publications include Internet Child Pornography and the Law: National and International Responses (London: Ashgate, 2008: ISBN: 0 7546 2297 5), and Internet: Restricted Access: A Critical Assessment of Internet Content Regulation and Censorship in Turkey (co-authored with Kerem Altiparmak), Ankara: IHOP, 2008, at . Racism on the Internet will be published by the Council of Europe Publishing during 2009. For further information about his work see . Akdeniz can be contacted at lawya@cyber-rights.org.

McKinnon loses judicial review: “

High profile campaign suffers potentially fatal blow

Breaking news Gary McKinnon has lost a judicial review against his extradition to the United States on hacking charges.…

“

(Via The Register – Public Sector.)

UK – Call to ‘disconnect file-sharers’: “(BBC)
Persistent illegal file-sharers should be cut off from the net, an alliance of UK creative industries will tell the government later. The alliance wants the government to force internet service providers (ISPs) to disconnect users who ignore repeated warnings about sharing illegal content. John Woodward, head of the UK Film Council, said illegal file-sharing was hurting film-making and risking jobs. The coalition says more than 50% of net traffic in the UK is illegal content.

“

(Via QuickLinks Update.)

Tories fear legal dodge over comms überdatabase: “

Euro data law comes into force on Monday

Laws mandating a massive central database of email, web browsing, telephone and social networking data may already have been passed without proper scrutiny by MPs, according to the Conservatives.…

“

(Via The Register – Public Sector.)

ACLU Sues Prosecutor Over ‘Sexting’ Child Porn Charges | Threat Level from Wired.com

By Kim Zetter EmailMarch 25, 2009 | 2:12:01 PMCategories: Crime

The American Civil Liberties Union is helping three teenage girls fight back against a Pennsylvania prosecutor who has threatened to charge the girls with felony child porn violations over digital photos they took of themselves.

In a federal lawsuit filed Wednesday in Pennsylvania, ACLU lawyers accuse District Attorney George P. Skumanick, Jr. (.pdf) of violating the civil rights of the girls. The lawsuit says the threat to prosecute the minors ‘is unprecedented and stands anti-child-pornography laws on their head.’

The lawsuit comes in the wake of a string of cases around the country in which teens have been arrested on child porn charges for making and distributing nude and semi-nude photos of themselves.

At issue in the case are photos seized from student cellphones last year by officials of the Tunkhannock School District in Wyoming County, Pennsylvania. The practice of taking nude or semi-nude self-portraits and distributing them via a cellphone or the internet has come to be called ’sexting’ and has resulted in teens being arrested in a number of states under child porn production, distribution and possession charges.

The Tunkhannock case involves two photos depicting the three girls. One photo of Marissa Miller and Grace Kelly shows them two years ago at age 13 lying side by side while one talks on the phone and the other makes a peace sign with her fingers, according to the ACLU complaint. The two are photographed from the waist up and are wearing white opaque bras. A second photo shows a girl referred to in the court document as ‘Jane Doe’ photographed outside a shower with a towel wrapped around her waist. Her breasts are bared.

Last October, Tunkhannock school officials discovered that male students had been trading these and other photos, showing various states of undress, on their phones. Officials confiscated the phones and turned them over to Skumanick’s office, which began a criminal investigation.

Skumanick told an assembly of students that possessing inappropriate images of minors could be prosecuted under state child porn laws. Anyone convicted under the laws faces a possible seven year sentence and a felony conviction on their record. Under a state sex offender law, they must also register as a sex offender for 10 years and have their name and photo posted on the state’s sex offender website — the latter requirement will include juvenile offenders when the law is amended later this year.

Skumanick, who is running for re-election in May, also sent a letter to 20 students, including the three girls, who were found in possession of images. In a meeting with the students and their parents, he said he would file felony charges against the students unless they agreed to six months of probation, among other terms. He gave the parents 48 hours to agree. The parents of the three girls in the ACLU suit refused to sign.

Skumanick then threatened to charge the girls with producing child porn unless their parents agreed to the probation, and sent the teenagers to a five-week, 10-hour education program to discuss why what they did was wrong and what it means to be a girl in today’s society. The girls would also have to subject themselves to drug testing — a standard probation term in the county.

In an interview with Threat Level, Skumanick defended his actions, and said he offered the agreement in an attempt to avoid prosecution while still teaching the teens a lesson.

‘In other places around the country, they’ve simply charged [teens] and not given them an opportunity to avoid a criminal record,’ the prosecutor said. ‘Frankly, it would have been simpler to just charge them and force them to do what we wanted them to do. But then they’d end up with criminal records, and we felt this was a better approach. We were trying to do the right thing by helping them out.’

He pointed to an incident last year in Ohio to emphasize the dangers of sexting. In that case, a teenage girl killed herself over a nude photo she sent to her boyfriend, which he’d redistributed to other students, who taunted her.

‘Once these photos are out, God only know who’s going to get them,’ Skumanick said.

The ACLU of Pennsylvania is representing the three girls and their parents. In its lawsuit — filed in U.S. District Court for the Middle District of Pennsylvania — the organization charges that Skumanick violated the girls’ First Amendment rights. The lawsuit says the photos do not constitute child pornography under Pennsylvania’s criminal code since they depict no sexual activity and do not display the pubic area of the girls’ bodies.

The ACLU wants a federal judge to bar the prosecutor from charging the girls.

‘Skumanick’s threatened prosecution chills Plaintiff’s First Amendment right of expression, causing them concern about whether they may photograph their daughters, or whether the girls may allow themselves to be photographed, wearing a two-piece bathing suit,’ the ACLU wrote.

The lawsuit also claims the demand that the parents agree to place their girls in an education program violates the parents’ Fourteenth Amendment rights to direct the upbringing of their own children.

When lawyers for the parents asked for a copy of the photos that would be used to charge their children, Skumanick reportedly refused on grounds that he would be committing a crime by sharing child porn.

Skumanick still insists the images are child porn under the state law, which makes it a felony to possess or distribute images depicting a minor engaged in a sex act or the ‘lewd’ depiction of genitalia or nudity that is meant to arouse or titillate.

‘Just depicting nudity could be considered a sex act,’ he told Threat Level.

He said the photo of Miller and Kelly ‘at least constitutes open lewdness’ — which is a misdemeanor in the state — and the picture of ‘Jane Doe’ standing outside the shower ‘frankly is child porn under the statute.’ He said school administrators confiscated other pictures that showed even more nudity.

Witold Walczak, legal director for the ACLU of Pennsylvania, disagreed with Skumanick’s definition of child porn.

‘It’s not just pictures of kids that may show a little bit of flesh. It’s either got to depict sexual activity or it’s got to be some lascivious display,’ he said. ‘If you’ve just got kids standing upright outside a shower, that’s not lascivious. … If anyone needs to understand this, it’s prosecutors who have this heavy hammer they can bring down on people.’

Walczak said that ’sexting’ is a problem that parents and educators need to address. But felony charges aren’t the answer.

‘Teens are stupid and impulsive and clueless,’ he said. ‘But that doesn’t make them criminals. Child porn charges that land you on an internet registry even if you’re a juvenile? That’s a heck of a way to teach a kid a lesson about not being careless.’

He added that beyond the problem inherent in charging teens for child porn are Fourth Amendment issues related to the school district having searched the phones of his clients and other students to uncover stored images.

He said the ACLU is looking at bringing suit against school administrators either in Tunkhannock or elsewhere to challenge the searches.

This story was updated with comments from Skumanick and the ACLU.

Last call for UK liberties: “

Convention rallies support against government madness

On Saturday 28 February, several hundred activists and interested citizens got together to issue a rallying cry to all concerned by the government’s ever increasing encroachment on our traditional civil liberties. Or, if you prefer the Labour Party version: a bunch of mostly white, middle-class, middle-aged do-gooders demonstrated just how out of touch they are with the true needs of the people of Britain today.…

“

(Via The Register – Public Sector.)