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In our 720 issue:
A federal case in California has revealed that the FBI has been working for several years to cultivate informants in Best Buy’s national repair facility in Brooks, Kentucky, including reportedly paying eight Geek Squad employees as informants. According to court records, the scheme would work as follows: customers with computer problems would take their devices to the Geek Squad for repair. Once Geek Squad employees had the devices, they would surreptitiously search the unallocated storage space on the devices for evidence of suspected child porn images and then report any hits to the FBI for criminal prosecution
We think the FBI’s use of Best Buy Geek Squad employees to search people’s computers without a warrant threatens to circumvent people’s constitutional rights. That’s why we filed a Freedom of Information Act (FOIA) lawsuit against the FBI seeking records about the extent to which it directs and trains Best Buy employees to conduct warrantless searches of people’s devices.
EFF has long been concerned about law enforcement using private actors, such as Best Buy employees, to conduct warrantless searches that the Fourth Amendment plainly bars police from doing themselves. The key question is at what point does a private person’s search turn into a government search that implicates the Fourth Amendment.
Lawmakers should know how the laws they pass impact their constituents. That’s especially true when the law would reauthorize a vast Internet and telephone spying program that collects information about millions of law-abiding Americans.
But that’s exactly what the Intelligence Community wants Congress to do when it considers reauthorizing a sweeping electronic surveillance authority under the expiring Section 702, as enacted by the FISA Amendments Act, before the end of the year.
Intelligence officials have been promising Congress they would provide lawmakers with an estimate of the number of American communications that are collected under Section 702. That estimate is a critical piece of information for lawmakers to have as they consider whether and how to reauthorize and reform the warrantless Internet surveillance of millions of innocent Americans in the coming months.
But during a hearing on Section 702 in front of the Senate Intelligence Committee, Director of National Intelligence Dan Coats, despite previous assurances, said he won’t be providing that estimate out of national security and, ironically, privacy concerns.
EFF's work on a secret tracking code embedded in many printed documents is back in the news, as journalists and experts have recently focused on the fact that a scanned document published by The Intercept contained tiny yellow dots. Those dots allow the document's origin and date of printing to be ascertained, which could have played a role in the arrest of Reality Leigh Winner, accused of leaking the document.
EFF has previously researched this tracking technology at some length; our work on it has helped bring it to public attention, including in a somewhat hilarious video.
While this tracking technology is pervasive in color laser printers--thanks to secret agreements between governments and the printer industry--it's quite possible that printer dots did not play any role in this investigation at all. However the government identified its suspect in this case, it's worth remembering that forensic techniques are very powerful and can often reveal the origins of documents in unexpected ways.
EFF Updates
A Day of Action to Save Net Neutrality
Net neutrality is under assault once again, with the Federal Communications Commission looking to reverse the legal underpinnings of its 2015 rules that keep ISPs from blocking or slowing customers' access to certain websites and services. It’s our Internet, and we will defend it. If you remember the censor bar of the online protests opposing SOPA in 2012 or the spinning wheel of Internet Slowdown Day in 2014, you know that the Internet can rise up and force regulators to listen in times of great need. Now is such a time. Mark your calendars for a day of digital protest on July 12.
EFF Asks Court to Dismiss Terrorism Claims Against Twitter
Holding Twitter responsible for users' discussions of terrorist activities would threaten the First Amendment as well as legal protections for Internet platforms, EFF recently told a federal court. In a brief filed to the U.S. Court of Appeals for the Ninth Circuit, we argued that Twitter should not be held legally responsible for providing material support to terrorists by providing accounts to users who discussed and promoted terrorism. Finding Twitter responsible would impede on the First Amendment right of Internet users to access unpopular speech, the First Amendment right of Twitter to publish unpopular speech, and Section 230, as enacted by the Communications Decency Act, which protects Internet platforms from being held responsible for their users' actions.
Federal Circuit Hits Stupid Patent Owner With Fee Award
Patent litigation abuse thrives when patent trolls can force defendants into making a hard choice: pay the troll (even though the claim is absurd) or potentially pay even more to your lawyers to fight the case in court. This week, the Federal Circuit issued an encouraging ruling that will make it harder to use this gambit. Overturning a contrary decision by the patent-friendly Eastern District of Texas, the appellate court required a notorious patent troll that appears to be practicing this model to pay the defendant’s attorney’s fees. This case should make it at least a little bit easier easier for defendants to choose not to pay the troll.
Comcast Continues to Fight Net Neutrality Protections
If you've been following the network neutrality debate at all, you've probably seen Comcast's campaign to rewrite its long history of opposing net neutrality protections. But the company's own statements to Congress, the FCC, and to the courts make Comcast's true goal abundantly clear: free rein to use its market power to become an Internet gatekeeper. Despite their recent public statements in support of the idea of net neutrality, Comcast has repeatedly pushed back on rules that would protect Internet users' ability to do what they want online.
Supreme Court Takes Up Cell Phone Tracking Case
The Supreme Court has said it will take up a cell phone tracking case, giving the court the chance to apply Fourth Amendment privacy protections to cell phone location data. The case, United States v. Carpenter, involves long-term, retrospective tracking of a person’s movements using information generated by his cell phone and gives the court an opportunity to continue its recent pattern of applying Fourth Amendment protections to sensitive digital data. It may also limit or even reevaluate the so-called “Third Party Doctrine,” which the government relies on to justify warrantless tracking and surveillance in a variety of contexts. EFF filed an amicus brief urging the Supreme Court to take Carpenter and a related case, so we’re hopeful the Court will rule in favor of strong constitutional protections.
The State Department's Plan to Search Visa Applicants' Social Media Accounts
EFF, the Brennan Center for Justice and others are joining forces to oppose yet another federal program to scrutinize the social media accounts of foreign visitors to the United States. Specifically, in an attempt to uncover would-be terrorists, the U.S. State Department has empowered consular officials to ask visa applicants who raise preliminary suspicions to disclose the existence of the social media accounts, and the identifiers or handles associated with those accounts, that the applicants have used over the past five years. These proposals threaten the digital privacy and freedom of expression of innocent foreign travelers, and the many U.S. citizens who communicate with them.
miniLinks
First Amendment Group Criticizes Trump for Twitter Blocking
The Knight First Amendment Institute has written to President Donald Trump, warning him that his blocking of Twitter users on his @realDonaldTrump account could violate the Constitution's free speech protections.
U.S. Lawmakers Look at WannaCry Attacks
A House committee will hold a hearing this week on the global WannaCry ransomware attacks last month.
'The Long, Lonely Road of Chelsea Manning'
Following her recent commutation, The New York Times Magazine profiles Chelsea Manning, including her decision to disclose classified information in 2010 and the resulting time she spent in prison.
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Editor:
Kate Tummarello, Policy Analyst
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