This morning, the Third Circuit Court of Appeals in Philadelphia issued its highly anticipated ruling in a hotly contested cell phone location privacy case. EFF filed a friend-of-the-court brief and participated at oral argument in the case, arguing that federal electronic privacy law gives judges the discretion to deny government requests for cell phone location data when the government fails to show probable cause that a crime has been committed.

The Third Circuit today agreed with EFF, holding that federal law allows judges the discretion to require that the government obtain a probable cause search warrant before accessing cell phone location data. The Court further agreed with EFF that location information that can be used to demonstrate or infer that someone or something was in a private space such as the home may be protected by the Fourth Amendment, rejecting the government's argument that the privacy of location records held by phone companies is never constitutionally protected. Although the court did not definitively rule on the Fourth Amendment status of cell phone location information, it made clear that under some circumstances the privacy of such data could be constitutionally protected, and that judges have the discretion to require a warrant to avoid potentially unconstitutional seizures of location data.

The appeals court has remanded the case back to the original magistrate judge that initially denied the government's request to obtain cell phone location data without probable cause, asking the lower court to shore up its original decision with new fact-finding into the government's need for the requested data and the precision of that data in identifying a person's location. EFF looks forward to participating in those proceedings and opposing any attempt by the government to appeal today's decision. Thanks to our colleagues at the Center for Democracy and Technology, the American Civil Liberties Union and the ACLU of Pennsylvania for participating with us as friends-of-the-court in this case, and special thanks to Professor Susan Freiwald of the University of San Francisco Law School, who also submitted a brief and participated at oral argument along with EFF's Kevin Bankston.

Copyright trolls are nothing new, and Righthaven is just the latest group of lawyers to try to turn copyright litigation into a business model. What these lawyers have in common is that they seek to take advantage of copyright's draconian damages in order to bully Internet users into forking over money. To anyone who has watched the file-sharing lawsuits of the last few years or the current BitTorrent cases brought by a DC law firm, the Righthaven saga is developing into a familiar, unfortunate story. It also has some especially troubling twists.

The basic pattern: Righthaven has brought over a hundred lawsuits in Nevada federal court claiming copyright infringement. They find cases by (a) scouring the Internet for parts of newspaper stories posted online by individuals, nonprofits, and others, (b) buying the copyright to that particular newspaper story, and then (c) proceeding to sue the poster for copyright infringement. Like the RIAA and USCG before them, Righthaven is relying on the fact that their victims may face huge legal bills through crippling statutory damages and the prospect of paying Righthaven's legal fees if they lose the case. Consequently, many victims will settle with Righthaven for a few thousand dollars regardless of their innocence, their right to fair use, or other potential legal defenses.

However, Righthaven is unlike other copyright trolls in some key ways:

• Righthaven is going after bloggers using text news stories for comment or discussion. Many lawsuit targets are using the newspaper articles to augment discussions about current events. Reposting all or part of news stories is part and parcel of digital commentary and discussion and usually the goal of the reposting is to share the uncopyrightable facts included in the article, not the copyrighted expression, like the specific turns of phrase used by the author. By targeting news, Righthaven's lawsuits could have a chilling effect on individuals' attempts to engage their communities in free and open discussion.
• Righthaven is fighting the basic mode of Internet debate. Other copyright trolls have involved controversy over file-sharing programs and encoded digital media, like music and movies. But Righthaven is taking aim at folks who are using elementary "copy & paste" functionalities. Online discussion survives and thrives on showing others the original text before adding a commentary or response. Accurate quoting is a virtue of Internet discussion that can minimize mischarcterization and support progress in a debate.
• Righthaven lawsuits are demanding that courts freeze and transfer the defendants' domain names. Imagine if a single copyright infringement on Huffingtonpost.com or Redstate.com could result in forfeiture of the entire domain. Effectively asking for control of all of a website's existing and future content -- instead of only targeting the allegedly infringing material -- is an overreaching remedy for a single copyright infringement not validated by copyright law or any legal precedent. This also indicates that the attorneys are willing to make overreaching claims in order to scare defendants into a fast settlement.
• Righthaven goes straight for litigation. Righthaven isn't sending cease and desist letters or DMCA takedown notices that would allow the targeted bloggers or website operators to remove or amend only the news articles owned by Righthaven. Instead, Righthaven starts with a full-fledged lawsuit in federal court with no warning. It's sue first and ask questions later, which smacks of a strategy designed to churn up legal costs and intimidate defendants into paying up immediately, rather than a strategy aimed at remedying specific copyright infringements.

Righthaven is claiming that its activities are intended to have a "deterrent effect" on the reposting of news stories online, but it's hard to resist viewing Righthaven's actions as purely business-related. In addition to the sharp legal tactics discussed above, Righthaven appears to only buy copyrights that it believes can be used for lawsuits and otherwise has no involvement in the practice of journalism.

Righthaven also appears to be soliciting other newspapers to sign on with it. But newspaper publishers who think that suing bloggers a story at a time will save journalism are sorely mistaken. Newspaper publishers have actually been having meaningful discussions about innovative business models to support real journalism. Sadly, Righthaven -- if it continues to attract clients -- threatens to derail those conversations with a sideshow proven to distract from progress.

But no matter where a newspaper may stand on the debate about journalism's future, we think it is abundantly clear that a "sue the audience" tactic is nowhere near worth considering. Newspapers should resist the temptation to put themselves into the same position as the music industry circa 2004, where futile lawsuits distracted them from the incorporating new technology and creating new ways to market product to fans.

EFF is watching Righthaven and other copyright trolls closely for overbroad tactics that hurt free speech and fair use, and abuse the legal system. We're looking for good cases to defend and will deliver more news and analysis as the issue develops.

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups and law professors have asked a California appeals court to protect craigslist from a lawsuit that could spur websites to be less helpful in responding to complaints about user behavior.

In Scott P. v. craigslist, Inc., the plaintiff complained about a series of craigslist ads he said were written by impersonators. While craigslist removed the ads within minutes of his phone calls, the plaintiff sued, contending that craigslist broke a promise to "take care of it" when the impersonators posted additional ads. In cases like these, federal law -- specifically Section 230 of the Communications Decency Act -- shields Internet forums like craigslist from liability. Section 230 was designed to encourage parties to pursue action against those who created the questionable content instead of the platform that hosted it. But the California Superior Court has ruled that this case can continue because of the plaintiff's allegations that craigslist said it would help.

Craigslist filed a writ petition with the Court of Appeal for the State of California Wednesday, arguing that the trial court should have dismissed the case because of Section 230's protections for forum hosts. In an amicus letter filed today in support of craigslist, EFF argues that the lower court reasoning could create a hole in Section 230, discouraging forum owners from helping users.

"Section 230 was a deliberate effort by Congress to encourage service providers to find innovative ways to self-regulate," said EFF Senior Staff Attorney Kurt Opsahl. "Yet craigslist is facing the prospect of extended litigation because it tried to do just that. Allowing this litigation to continue could result in websites being less helpful to users with complaints."

Additionally troublesome is the specter of further lawsuits, which could convince other Internet innovators not to host user content at all.

"Congress created Section 230 to allow for online interactivity without a flood of lawsuits. But this case could undermine the immunity that the law created," said Opsahl. "If litigation can survive merely because a plaintiff asserts that the site made a vague promise, sites may decide that allowing comments or user generated content is not worth the legal exposure. Then we'll lose the vibrant online environment that Section 230 helped create in the first place."

Joining EFF in the letter to court were the Center for Democracy and Technology, the Citizen Media Law Project, and law professors Eric Goldman, David S. Levine, David G. Post, and Jason Schultz. Separately, a group of Internet companies, including Yahoo!, Amazon, Facebook, Twitter, Google and Linkedin filed another amicus brief in support of craigslist.

For the full amicus letter:
http://www.eff.org/files/filenode/craigslist_v_sup/EFFletter9210.pdf

For more on this case:
http://www.eff.org/cases/craigslist-v-superior-court-california

Contact:

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Scary news from California's Contra Costa County — school officials there have reportedly decided to track some preschoolers with RFID chips, thanks to a federal grant supplying the funding.

According to a story from the Associated Press, the students will wear a jersey at school that has the RFID tag attached. The tag will track the children's movements and collect other data, like if the child has eaten or not. According to a Contra Costa County official, this is a cost-savings move, as teachers used to have to manually keep track of a child's attendance and meal schedule.

But of course, an RFID chip allows for far more than that minimal record-keeping. Instead, it provides the potential for nearly constant monitoring of a child's physical location. If readings are taken often enough, you could create an extraordinarily detailed portrait of a child's school day — one that's easy to imagine being misused, particularly as the chips substitute for direct adult monitoring and judgment. If RFID records show a child moving around a lot, could she be tagged as hyper-active? If he doesn't move around a lot, could he get a reputation for laziness? How long will this data and the conclusions rightly or wrongly drawn from it be stored in these children's school records? Can parents opt-out of this invasive tracking? How many other federal grants are underwriting programs like these?

These are questions that desperately need answers. California is in the middle of a terrible budget crunch, but the solution is not federally funded surveillance of children who are too young to understand the implications.

Hari Prasad, the Indian security researcher arrested for allegedly stealing an electronic voting machine, has been released on bail.

Earlier this year, an anonymous source gave the machine to Prasad and a team of researchers, who discovered critical security flaws. Under questioning by authorities last weekend, Prasad refused to divulge the identity of the source who gave them the machine. He was then arrested and reportedly charged with theft and trespass on the theory that he stole the machine himself.

According to the Indian news agency PTI, the magistrate who released Prasad on bail noted that "no offence was disclosed with Hari Prasad's arrest and even if it was assumed that [the electronic voting machine] was stolen it appears that there was no dishonest intention on his part...he was trying to show how [electronic voting] machines can be tampered with."

The court reportedly also asked the Election Commission of India to confirm or disprove Prasad's claim that the country's electronic voting machines can be compromised. If Prasad's claims are false, action could be taken against him, the magistrate said.