Archive for category first amendment
Anti-Counterfeiting Trade Agreement: Analysis
Posted by Margot in Blogosphere, Privacy, Surveillance, first amendment, lamp on March 25, 2010
I’ve written up in detail my comments on the new acta text.
The text reads like a debate between countries. Most of the more salient issues are still up in the air; I’ve tried to pinpoint those issues along with the varying takes on them by different negotiators.
Recurring themes include: 1) regulatory capture by private industries of government resources such as courts and border officials; 2) significant privacy concerns sparked by “sharing” information with rights holders and other countries during investigations; 3) expansion of US law internationally despite contradicting decisions in other jurisdictions; and 4) blatant disregard for existing international IP institutions and norms.
These, in shorter form, are some of the important features to note:
1. ACTA imposes mandatory statutory damages in civil copyright law. Australia, Mexico, and New Zealand do not want this provision, as their law does not include statutory damages (which have been shown in the US to often be grossly disproportionate to the harm done).
2. Privacy in civil cases: accused infringers must produce evidence of the “means of production and distribution” during civil proceedings. The EU proposes that this mandate be subject to data privacy protections.
3. Smaller de minimis exception in border measures: TRIPS provides an exception for the import of “small quantities of goods of a non-commercial nature”. ACTA would further limit this exception to quantities “reasonably attributable to personal use of the traveler”, exempting gifts for other people rather than tying de minimis to non-commerciality as TRIPS does.
4. Ex officio action at the border: Under TRIPS, countries may optionally mandate ex officio action (customs-official-initiated action, rather than by a party) only once a prima facie case of infringement has been shown. ACTA as proposed by the US mandates such ex officio action by all countries (”shall” instead of “may”), and refers to “suspected” counterfeit goods rather than goods for which a prima facie case of infringement has been shown. The government is doing the work of private parties before a substantial case has been established.
5. Privacy: Releasing personally identifying information of border crossers to rights holders without process: TRIPS stated that identifying information be disclosed to rights holders only after a determination that goods were infringing “on the merits of a case”. ACTA as proposed by the US allows release of such information as part of an investigation, once the goods have been confiscated rather than once guilt has been at least initially established.
6. Demands on the court and on border officials: ACTA proposes a fast turn around by the courts in these cases, and encourages governments to absorb storage and application fees to avoid burdening rights holders.
7. Expanding the definition of criminal copyright infringement internationally. TRIPS had a “commercial scale” requirement for criminal copyright infringement. The United States understands “commercial scale” in its domestic law to include acts done for “private financial gain”- which rights holders argue includes downloading pirated music for no cost. The US wants “private financial gain” included in ACTA, and also wants a category of “significant willful infringements that have no direct or indirect motivation of financial gain”- again targeting music and movie filesharing.
8. ACTA enlarges the scope of international criminal law sanctions to mandate imprisonment. TRIPS allowed countries to chose between criminal fines and prison terms, and set no minimum standards for either. ACTA mandates “penalties that include actual sentences of imprisonment” and includes a negotiator’s note requiring countries to “encourage competent authorities” to “impose penalties… including imposition of actual terms of imprisonment.”
9. ACTA exports the Digital Millenium Copyright ACT (DMCA), which includes the US’s understanding of third party liability for copyright infringement, inconsistent with other jurisdictions. New Zealand, for example, notes that it does not find search engine activity to be copyright infringing, and therefore questions why this provision regarding third party liability exists in reference to search engines. Mexico notes that takedown must be requested “by a competent authority”, not a party. Japan also notes that these provisions are not currently consistent with its jurisdiction.
10. Exceptions and limitations, and fair use: The US asks for a note including reference to exceptions and limitations (at the discretion of countries according to the Berne Convention and TRIPs) and fair use (a US concept); the EU wishes to include exceptions and limitations in the actual text of the agreement.
11. DMCA technological circumvention measures. The US wants to expand DMCA criminalization of technological circumvention (”hacking” digital rights management (DRM)). The EU wants to striek the criminalization aspect of this, limiting to civil remedies. Japan explicitly notes that its laws currently allow for circumvention in certain cases; New Zealand notes that circumvention of noncopyrighted works is not a crime, and access control is not a right given to copyright holders.
12. International cooperation: ACTA mandates cooperation between countries in criminal IP infringement cases. The EU proposes “particular attention… to infringing goods detrimental to… health and safetly.” This potentially targets the distribution of generic medicines.
13. Information sharing between countries: parties are debating whether countries “may” or “shall” share information during investigations. This could be extremely problematic for countries with different standards of privacy norms and laws.
14. Paternalistic crafting of domestic legislation: Countries must work with countries not party to ACTA to craft domestic legislation that brings them in line with ACTA. Canada wishes to strike this provision.
15. Officially fostering dialogue with private party righs holders: The US wants to establish formal mechanisms for authorities to hear the view of rights holders. Again, this looks like the government doing work on behalf of private entities.
16. Transparency of process- with major discretional exceptions: Exceptions to transparency of ACTA-mandated investigations include whether they would be “contrary to … domestic laws or policy” or “the public interest”- extremely vague, governmentally discretionary terms.
17. A new IP institution to Preserve ACTA? The ACTA “Committee” would oversee disputes, amendments to ACTA, and supervise implimentation. This disadvantages those devleoping countries who are not original signatories to the agreement.
18. Only five states are required for ratification. Effectively, the five most powerful can rush to sign on to terms everybody else will have to take on later.
MFIA Amicus in Illinois First Amendment case- with EFF
Posted by Margot in Newspapers, Privacy, first amendment, lamp, news on March 23, 2010
The Media Freedom and Information Practicum is proud to announce that, along with EFF, it has filed a friend-of-the-court brief urging the Illinois Court of Appeals to block the unmasking of an anonymous online critic of a local political candidate in the comments section of a local newspaper’s website.
Battle Over Message Board Flame War Must Not Circumvent the First Amendment
The First Amendment provides qualified protection for anonymous speakers. MFIA and EFF encourage the court to recognize such protection by instituting the same process established by other courts across the country (see, eg, Dendrite).
The viability of newspaper websites as forums for such political discussion and whistleblowing is at stake, along with fundamental First Amendment values inherent in the protection of political speech.
For the full brief, click here.
Gaining Access to ICE’s Varick Detention Center
Posted by Steve in Blogosphere, first amendment, lamp, open access on February 13, 2010
Just wanted to flag a MFIA victory – journalist Jacqueline Stevens, who writes for the Nation, will be given a tour of the Varick Detention Center in NYC next week (ICE had denied her previous requests for access). Approval came a day after the ACLU and the New York Civil Liberties Union sent a letter to ICE on behalf of the Nation, the Nation Institute, and Ms. Stevens, requesting that Ms. Stevens be granted access to the center in accordance with ICE’s own regulations and First Amendment access principles. We here at the MFIA practicum helped gather the information and write the letter, so we’re all very excited about the recent developments.
This is an important step in better understanding what goes on in detention centers around the country. Check out more details here on Ms. Stevens’ blog.
why surveillance matters
Posted by Margot in Privacy, Surveillance, first amendment, lamp on October 13, 2009
As a follow-up to Nabiha’s great post on terrorism and open access:
As Nabiha said, our interest in terrorism-related issues has to do with the barriers the government places to access.
Our interest in surveillance speaks more generally to the democratic conditions necessary for newsgathering. Newsgatherers cannot properly gather news if they know that they’re being watched. And journalists and protestors are often the deliberate targets of surveillance, alongside more conventional “threats”; see Ken Krayeske’s experience, or the experience of anti-war protestors with the TALON database.
what we do and why terrorism matters
Posted by Nabiha in first amendment, lamp, open access on October 12, 2009
Our projects include a lot of national security-oriented topics, including Guantanamo, fusion centers, and the like. One might wonder — hell, we’ve wondered — how this intersects with our core mission to support newsgatherers. In an Information Society Project Ideas Lunch last week, Jack Balkin hit the nail on the head: the current onslaught of secrecy, under the guise of national security, is just the most recent incarnation of the desire to suppress open information. Our projects will fluctuate to respond to the realities of the day. Right now, it just so happens that terrorism is a popular excuse for keeping information under wraps, and as such, inaccessible to the newsgatherers who want to write about it.
On that note, I was thrilled to find this report on the Centre for the Freedom of the Media website. The Speaking of Terror report, drafted for the Council of Europe, outlines anti-terror laws have stifled freedom of expression and media operation in Europe. Anyone know of anything similar written about the United States? I’d love to read it.
Can Judicial Openness Initiatives Disqualify Judges from Access Cases?
Posted by patrick in Newspapers, cases, first amendment, lamp, open access, secret dockets on October 10, 2009
The Supreme Court has refused to indulge a stay sought by the Bridgeport Roman Catholic Diocesan Corporation which would have kept 12,000 pages of court records and depositions in a long-running CT clergy abuse case from public view.
The judgment sought to be stayed, Rosado v. Bridgeport Roman Catholic Diocesan Corp., raises some fascinating access issues, including an institutional-reform question which I haven’t seen elsewhere. Does a judge’s participation on an open access task force mandate recusal by creating an appearance of impropriety in deciding open access questions?
Here, the Connecticut Supreme Court held that the trial judge’s failure to recuse himself in Rosado, despite his involvement with the Judicial Branch’s Public Access Task Force, did not amount to abuse of discretion:
“A trial judge has no affirmative duty to step down from a case merely on the basis of membership on a task force unless the agenda of the task force is inconsistent with the judge’s duty to judge impartially. Case law confirms that service on a commission concerned with improving the legal system and the administration of justice, without more, is not a basis for disqualification, even if the subject matter generally relates to the area of the law at issue in the case at hand.”
Good call, CT. An adverse ruling on this issue would certainly chill bench-led openness efforts. In this case, the precedent appears extensive and clear, but Justice Sullivan’s spirited dissent demonstrates how the “appearance of impropriety” standard can be stretched to embrace reform initiatives. Several features of the task force’s design were extremely important to the majority ruling, including instructions to consider privacy interests as well as disclosure interests. Take note, other states seeking to institute openness initiatives, lest you design a task force which might jeopardize judges’ ability to hear access cases.
The next steps, as the New York Times reports, will be unsealing hearings in the Connecticut Superior Court. We will follow those with interest.
General shout-out to the Sunlight Foundation
Posted by Margot in first amendment, lamp, open access on October 8, 2009
The Sunlight Foundation is committed to exactly the kind of transparency principles that journalism traditionally serves. Their projects include: compiling a list of people seeking tax breaks on imports from Congress; building a completely indexed and cross-referenced depository of federal documents; running the numbers on sources of Congressional wealth; opening bills to online, public review.
“The Sunlight Foundation is a non-partisan non-profit dedicated to using the power of the Internet to catalyze greater government openness and transparency.”
Jimmy Wales of Wikipedia, on newsgathering
Posted by Margot in Blogosphere, business models, first amendment, lamp on October 8, 2009
I had the pleasure of attending a talk by Jimmy Wales, co-founder of Wikipedia, yesterday. I took the opportunity to ask him about Wikipedia’s relationship to legacy journalism, and his thoughts about the decrease in newsgathering, and what systems might take its place.
Because of its system of cross-references to “reliable” outside sources, Wikipedia depends on the continuation of newsgathering journalism or its equivalent.
Wales affirmed that Wikipedia has no intention of replacing newsgathering. He posits, however, a reimagination of the role of newspapers, splitting what he sees as the current “hybrid system of journalism” into parts. Some of these parts may be better (or at least more cheaply) handled by non-legacy media. Wales believes that opeds, for example, could be dropped out of newspapers and left to the blogs, since the papers (according to him) serve only a distributive function. Wales also cites sports journalism as something that could be taken over by citizen writers, due to the publicly accessible nature of the events, and the high nonmonetary incentives for writer-fans. (It’s of course debatable whether the editorial and accreditation functions of newspapers could be adequately replicated in the blogosphere…)
However, Wales emphasizes the need for certain kinds of traditional journalism to continue: the day-to-day gruntwork of political reporting, for example. The question is not just one of motivation or resources– Wales also sees a need for objectivity, rather than cause-motivated reporting.
This reflects a general consensus that even at the basis of the newest of new media, there’s still a real need for objective newsgathering– whether by newspapers or by reliable freelancers in all sorts of media forms. These are the resources that form the basis for informed political discussion– resources that a democracy can’t afford to lose.
DHS Databases & Speech
Posted by Adri in first amendment on October 7, 2009
Comparative Case Studies of Radical Rhetoric, according to the government’s own description, “is a research effort funded by the Department of Homeland Security (DHS), Directorate of Science and Technology (S&T), Human Factors/Behavioral Sciences Division (HFD). The goal of the research project is to determine whether various characteristics of the rhetoric expressed by groups are related to the groups’ likelihood of engaging in violent extremist activity. Researchers will collect personally identifiable information during this research effort.”
Let’s repeat that. This is an analysis of pure rhetoric, performed upon expression that is connected to personally identifiable information, in order to arrive at predictive conclusions about people who express that kind of rhetoric. Needless to say, the program raises some troublesome First Amendment worries.
The program analyzes papers, speeches, and publications of various groups. On a new media note, it will also analyze content on the political party Hizb ut-Tahrir’s website.
The DHS’s Privacy Impact Assessment of the program can be found here.
Of FOIA & Free Access
Posted by Adri in Privacy, first amendment, lamp on October 6, 2009
It’s a point of no contention to folks here at LAMP that court documents are and should be legally required to be in the public domain. But public domain currently means paying 8 cents a page to read docs on PACER — the federal judiciary’s Public Access to Court Electronic Records database. This law student can personally attest that the system is, simply put, really annoying to use. ( WIRED Magazine has described the interface as feeling like something designed for the DMV).
Open gov activists have responded to the unwieldiness of PACER by proliferating a variety of alternative online law libraries, a trend that will be discussed in a Yale ISP/ACS talk today entitled: “RECAPture the Law: The Growing Movement to Free the Electronic Record,” by Princeton’s Stephen Schultze and Harlan Yu.
There’s a dark side to this sunshine story, however . . . Last fall, a 22-year-old programmer named Aaron Swartz took advantage of the government’s offering of a free PACER trial period to run a script on a library computer that downloaded (or in the FBI’s language, “exfiltrated”) massive compilations of federal court records to be released the public. When the government realized what was up, they initiated a criminal investigation of Swartz, obtaining his identity, phone number, and home address from Amazon.com — even considering staking out his house. How did Swartz find out about the investigation of him? Through a Freedom of Information Act request for his file.
For you citizen journalists and programmers out there who are curious about what your own file may hold, you can find template FOIA requests at the FBI’s FOIA / Privacy Act website. Don’t let them stonewall you by asking you to send in fingerprints either — you shouldn’t need that unless you are specifically requesting your NCIC criminal record.