EFF update

You may have heard of the Flipper Zero. It’s marketed as a “Portable Multi-tool Device for Geeks”—a programmable portable device packed with hardware that facilitates wireless penetration testing and hacking on the go. The device, which greets its owner with an adorable cyber-dolphin on its monochrome 128x64 pixel screen, is facing problems in Brazil: despite products with similar features being available to Brazilians, the national telecoms regulator Anatel has flagged the Flipper Zero as a device that serves illicit purposes, or facilitates a crime or misdemeanor. As with other radio frequency emitting devices, when the Flipper Zero is shipped to the country, the national post office intercepts and redirects the device to Anatel for certification. Anatel then decided not to certify the equipment, and seize it as a result—not allowing the Flipper Zero to proceed to its final destination.

Maciej Łutczyk, CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0), via Wikimedia Commons

The device itself doesn’t introduce any fundamentally new technologies. All of the hardware—the infrared transceiver, RFID reader/emulator, SDR and Bluetooth LE capabilities—are available in other, perhaps more specialized products. What is novel about the Flipper Zero is its form factor and interface, which make it portable and easy to use in the field. 

The Flipper Zero has been called a hacking multi-tool. And like a physical multi-tool, there are no doubt uses of it which would facilitate committing a crime. But also like a physical multi-tool, this is no justification for banning access to the device wholesale. Laws are already in place which criminalize acts of malicious hacking. Banning trade tools will only make security systems more vulnerable by limiting the access of those working to secure these systems. The malicious hacking that concerns Anatel and that Flipper Zero would allow is dependent on systems' vulnerabilities—those are the actual problems that deserve a fix. But we can only patch security flaws once we know they exist, and that's what security research is for.

The Flipper Zero has clear uses: penetration testing to facilitate hardening of a home network or organizational infrastructure, hardware research, security research, protocol development, use by radio hobbyists, and many more. But it is likely its unique UX design that has gained the product its notoriety and garnered it media attention—the latter of which has partially contributed to a negative portrayal of its capabilities as “trouble waiting to happen and a whole lot more.”

It is this notoriety and portrayal that has Anatel focused on it as an illicit device while other hardware remains available in the country. Despite the legitimate uses of a Flipper Zero, Anatel has chosen to focus on the possibility of illegal usage of the device. Banning the device outright will result in tangible harms. Professionals will have access to tools of their trade arbitrarily limited, and (contrary to the stated goal of Anatel) may be unable to develop techniques to mitigate the potential harms done by malicious hackers with the same devices.

The creation, possession or distribution of tools related to security research should not be criminalized or otherwise restricted. As we have explained, drawing on rights recognized by the American Convention on Human Rights, cybersecurity tools are crucial to the practice of defensive security and have legitimate uses, such as identifying and testing practical vulnerabilities. Coding is a protected expressive activity and the use of computer code to examine computer systems and find security flaws is an essential step to get them patched and improve privacy and security for us all.

Denying certification to Flipper Zero doesn't prevent the use of other tools to exploit the same vulnerabilities, as it doesn't stop people from bringing a Flipper Zero from abroad in their bag without having to ship it through the Brazilian border. While Brazilian law forbids the use of radio frequency emitting devices that don't have Anatel's certification, such illegality would hardly deter a malicious hacker. Those with malicious intent would find ways to use the device without having to leave a paper trail. The agency's actions hamper those engaged in security research. We call on the Brazilian authorities to reconsider their decision and allow access to technical trade tools, including the Flipper Zero.

Electronic Frontier Foundation, Knight Institute, and Social Justice Legal Foundation say that the policy violates the rights to free speech and privacy

REDWOOD CITY, CA—The Electronic Frontier Foundation, the Knight First Amendment Institute at Columbia University, and the Social Justice Legal Foundation today filed a complaint challenging San Mateo County’s policy of digitizing and destroying physical mail sent to people in its jails.  

The lawsuit was filed on behalf of five people incarcerated in San Mateo County jails, several of their family members, and A.B.O. Comix, a collective of artists who correspond with people in jail. The complaint argues that the new mail policy violates the expressive, associational, and privacy rights of those in the county’s jails, and their family, friends, and supporters who send them letters. This lawsuit is the first major challenge to the digitization of personal mail in U.S. jails. 

"Banning physical mail is completely antithetical to the criminal justice system's goal of reducing recidivism,” said Hannah Zhao, a staff attorney at the Electronic Frontier Foundation. “Numerous studies have shown that letter-writing between incarcerated folks and loved ones outside lowers stress, reduces depression, and tightens relationships. For those in jail, communicating this way is an integral part of establishing strong interpersonal ties and feelings of community, which are universally considered to decrease the likelihood of reoffending." 

Under the current policy, the county prohibits people in jail from receiving any physical mail other than attorney communications. Members of the public must route letters to a private for-profit company, Smart Communications, which scans and stores digital copies of mail for at least seven years—even if its recipient has long been released from jail. The original letters, cards, drawings, and religious and educational materials are destroyed, while the scanned copies are retained in a database that allows the county—and anyone to whom the county has provided login credentials—to monitor, read, and search through mail for any reason, or for no reason at all.  

Incarcerated people can access digital copies of their mail through Smart Communications’ MailGuard service, but only if they agree to certain terms, and even then only through shared tablets and kiosks in public spaces. The limited availability of the tablets, and the technical problems with them, mean that incarcerated people often cannot access their mail at all.  

“Physical mail is a lifeline for people in jail, and digital copies are not a meaningful substitute. The county's ban on physical mail severs the connection that people in jail rely on to stay in touch with their families, communities, and religious leaders,” said Stephanie Krent, a staff attorney with the Knight First Amendment Institute. “The county’s digitization of mail also enables new and sophisticated surveillance against both senders and recipients of mail, posing a grave threat to freedom of expression, association, privacy, and religion behind bars.” 

San Mateo County has suggested that banning mail reduces drug use behind bars, but the complaint points to public reporting that similar policies in other states did not lead to a decrease in drug use or overdoses. Additionally, letter-writing has been linked to better outcomes for both the receivers and senders of mail, including reduced stress, closer relationships, and more opportunities upon release. 

“We are deeply concerned about the growing practice of depriving people in jail and prison of valuable personal communications that are often their only connection to the outside world,” said Pilar Gonzalez Morales, managing attorney at the Social Justice Legal Foundation. “Through this lawsuit, we seek to send a message to other jails and prisons across the country considering adopting a policy of destroying mail and replacing it with a digital surveillance program.”  

Similarly invasive digitization and destruction policies have been adopted in recent years by many jails and prisons across the nation. In 2018, Pennsylvania became the first state to begin digitizing and destroying mail using MailGuard. A group of legal organizations challenged the use of MailGuard to process legal mail, and the state quickly agreed to halt the practice. 

Lawyers on the case include, in addition to Zhao, Cara Gagliano, Aaron Mackey, and Mukund Rathi of the Electronic Frontier Foundation; in addition to Krent, Mayze Teitler and Alex Abdo of the Knight First Amendment Institute at Columbia University; and in addition to Gonzalez, Shubhra Shivpuri and Emily Olivencia-Audet of the Social Justice Legal Foundation. Silicon Valley De-Bug, Social Justice Legal Foundation’s grassroots partner and a nonprofit in San Mateo County that supports the families of incarcerated individuals, helped lead activism efforts and obtained key details about the county’s adoption of MailGuard through a public records request filed in 2021. 

For the complaint: https://eff.org/document/abo-comix-v-county-san-mateo-complaint

Contact:  HannahZhaoStaff Attorneyzhao@eff.org CaraGaglianoStaff Attorneycara@eff.org

This week, EFF asked Utah’s Governor Cox to veto a dangerous “social media regulations” bill, S.B. 152 (McKell). Utah’s bill is part of a wave of age verification laws that would make users less secure, and make internet access less private overall. EFF opposes laws that mandate age verification requirements, and Utah’s S.B. 152 would be one of the worst we’ve seen. 

S.B. 152 would require a social media company to stop a resident minor from creating an account unless they have the express consent of a parent or guardian. The law targets any site with over ten million account holders that allows a user to post their own content, and so would impact many sites that aren’t generally considered social media—for example, a site like AllTrails, which helps you find and share hiking spots, for example. 

We requested that the governor veto the bill for four main reasons: 

First, young people have a First Amendment right to information that S.B. 152 will infringe upon. If S.B. 152 is implemented as written, the majority of young Utahns will find themselves effectively locked out of much of the web. 

Second, requiring parental access to accounts of young people will harm privacy and free speech. Access to private spaces online for research, communication, and community are vitally important for young people. S.B. 152 will make too much of that privacy impossible. 

Third, S.B. 152 will endanger the privacy of all Utah users, as it requires many sites to collect and analyze private information, like government issued identification, for every user. This will lead to large platforms, many which have been regularly critiqued by Utah’s elected officials for harvesting private data, collecting even more of it. 

Fourth, this law will interfere with the broader public’s First Amendment right to receive information. Requiring that all users in Utah tie their accounts to their age, and ultimately, their identity, will lead to fewer people expressing themselves, or seeking information online. In addition, there are tens of millions of U.S. residents without a form of government-issued identification. Those in Utah would likely be age-gated offline.

You can read our full letter to the governor here.

A few months ahead of its expiration this fall, the Biden administration has announced its intention to seek renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA)—an invasive and unconstitutional law that cannot continue to exist in its current form.

On its face, Section 702 allows the government to conduct surveillance inside the United States so long as the surveillance is directed at foreigners currently located outside the United States. It also prohibits intentionally targeting Americans. Nevertheless, the NSA routinely (“incidentally”) acquires innocent Americans' communications without a probable cause warrant. In fact, FISA Court judges who approve Section 702 surveillance never learn about, let alone approve, the targets of surveillance under Section 702, and they rely entirely on certifications from the executive branch that downplay the nature of incidental surveillance of Americans. Then, rather than “minimize” the sharing and retention of Americans’ data, as Congress required, the NSA routinely shares such data with the FBI, CIA, and National Counterterrorism Center, and all agencies retain it for at least five years. Since Section 702 was last reauthorized in 2018, it has only become clearer that this provision is a rich source of warrantless government access to Americans’ phone calls, texts, and emails.

In this way, Section 702’s mass surveillance of Americans and the availability of that information to law enforcement isn’t just “incidental”—it's the primary function of the program. What should we do about a program where the byproduct of the program becomes the primary benefit to the government?

As early as 2011, the FISA Court held that the NSA's collection of Internet communications violated the Fourth Amendment because, despite targeting foreign communications, the agency was still collecting approximately 56,000 American emails a year. And yet, this collection continued. In 2021 alone, the FBI conducted up to 3.4 million warrantless searches of Section 702 data to find Americans’ communications. Congress and the FISA Court have imposed modest limitations on these “backdoor searches,” but according to several recent FISA Court opinions, the FBI has engaged in “widespread violations” of even these minimal privacy protections.

In addition to stopping the unconstitutional surveillance, Section 702 also needs new measures of transparency to enable future audits and accountability of these secretive programs. FISA has long contained procedures for private parties to sue over surveillance that violates their rights, including a mechanism for considering classified evidence while preserving national security. But, in lawsuit after lawsuit, the executive branch has sought to avoid these procedures, and the judiciary, including the Supreme Court, has adopted cramped readings of the law that create a de facto national security exception to the Constitution.

EFF is far from alone in this fight to reform Section 702. Not only are we joined by a large number of civil liberties and civil rights groups, even members of the Executive Branch’s Privacy and Civil Liberties Oversight Board (PCLOB) have announced that this program should not continue as is. PCLOB member Travis LeBlanc said at a conference, “Given what I have seen and what I know, I do have several concerns about a clean reauthorization without significant, common-sense reforms to safeguard privacy and civil liberties.”

Section 702 has become something Congress never intended: a domestic spying tool. Congress should consider ending the program entirely, but certainly not reauthorize Section 702 without critical reforms, including true accountability and oversight.

A trademark dispute between a liquor company and a maker of novelty dog toys may not sound like an important First Amendment battleground, but the latest trademark case to come before the U.S. Supreme Court could have serious consequences for online speech and political activism. Trademarks are part of our modern lexicon, and we cannot allow their owners to use the law as a censorship tool.

In Jack Daniel’s Properties v. VIP Products, Jack Daniels claims that a company infringed and diluted its trademarks by selling a parody dog toy that looks like a Jack Daniels whiskey bottle and has punny text like “BAD SPANIELS – 43% POO BY VOL.” The Ninth Circuit held that the defendant’s use of Jack Daniels’s trademarks was “expressive,” requiring application of what’s known as the Rogers test. Jack Daniels is now asking the Supreme Court to take the extreme position that no special test should apply to expressive uses of trademarks at all, essentially arguing that there’s no need to consider whether forbidding a trademark use would deprive someone of their First Amendment rights. We filed an amicus brief urging the Court to reject that argument, explaining why and how the law must protect our ability to use trademarks to critique and comment on their owners and the things they represent.

In most trademark cases, courts apply a set of six to ten factors meant to assess the likelihood that consumers will be confused—things like how well-known the plaintiff’s trademark is and how similar the plaintiff’s and defendant’s uses are. That’s consistent with the consumer protection purpose of trademark law: trademarks provide information about goods and services, so the law polices their use to prevent people from thinking they’re buying one thing but actually getting another.

But there are a few problems with applying this standard test to parodies or other expressive uses of trademarks—i.e., cases where a trademark is being used to communicate something other than the source of a product. First, the test treats avoiding confusion as the only goal, without recognizing a competing interest in free expression. Second, certain factors may be unhelpful or awkward to apply to expressive uses, or lead to counterintuitive results. And third, the many subjective factors make the outcome unpredictable and difficult to resolve early in the case, which translates to uncertainty about your legal rights and expensive litigation.

The Rogers test was developed by the courts in recognition that expressive uses of trademarks require extra free speech protections. Instead of applying the usual set of factors, the test asks just two questions: Was the use of the plaintiff’s trademark artistically relevant to the defendant’s expressive work? And did the use explicitly mislead consumers about the work’s source or content? This streamlined test gives due consideration to trademarks’ expressive value, is easy to apply, and helps get rid of bad cases early.

In addition to explaining these advantages of the Rogers test, EFF’s brief educates the Court about the role of trademarks in modern political activism. Trademarks are ubiquitous in the modern world, and the same attributes that make them useful for identifying the source of goods or services also make them a powerful expressive tool for commenting on their owners and society. Think of every SNL parody or Onion article you’ve ever seen. The use of the actual name and look of the company being critiqued makes the comments hit harder. Because it’s creative and funny, you’re more likely to remember that issue when you next encounter the company.

Our brief focuses in particular on an activism technique called “identity correction,” a form of parody involves pretending to speak for a company or organization in a way that exposes hypocrisy or a failure to take responsibility for their actions. EFF frequently provides legal help to activists using identity correction, and the Rogers test is a key shield against the trademark owner’s sword.

Discarding the Rogers test would threaten far more than the parody dog toy market; it would eliminate an important protection for a wide range of political and artistic expression. We hope the Supreme Court will recognize that and affirm the Ninth Circuit’s judgment.

EFF recently submitted comments to the U.S. National Telecommunications and Information Administration (NTIA) on "Privacy, Equity, and Civil Rights". NTIA is a unit of the U.S. Department of Commerce that advises the President on information policy. NTIA is writing a report on privacy and civil rights, and requested comments from the public.

The submission spotlights how data surveillance practices cause discrimination against vulnerable groups across the entire lifecycle of data processing: at the point of data collection; in the use of data for ad delivery and automated decision-making; and when corporate employees misuse data and thieves steal it. 

The unifying thread to this pervasive system is the processing of personal information about people from marginalized communities, and the subsequent discriminatory use by corporations and government agencies—exacerbating existing structural inequalities across society. 

One necessary approach to solving this problem is to reduce the amount of data that these entities can use to discriminate. To resist these civil rights abuses at their source, we need federal comprehensive consumer data privacy legislation.

You can read our comments here.

What would the internet look like if it weren't the greatest technology of mass surveillance in the history of mankind? Trevor Paglen wonders about this, and he makes art from it. 

%3Ciframe%20height%3D%2252px%22%20width%3D%22100%25%22%20frameborder%3D%22no%22%20scrolling%3D%22no%22%20seamless%3D%22%22%20src%3D%22https%3A%2F%2Fplayer.simplecast.com%2F04c961d3-fe06-4b98-bf70-067432bacfc3%3Fdark%3Dtrue%26amp%3Bcolor%3D000000%22%20allow%3D%22autoplay%22%3E%3C%2Fiframe%3E Privacy info. This embed will serve content from simplecast.com

  
  

You can also find this episode on the Internet Archive.

To Paglen, art is a conversation with the past and the future – artifacts of how the world looks at a certain time and place. In our time and place, it’s a world dogged by digital privacy concerns, and so his art ranges from 19th-century style photos of military drones circling like insects in the Nevada sky, to a museum installation that provides a free wifi hotspot offering anonymized browsing through a Tor network, to deep-sea diving photos of internet cables tapped by the National Security Agency. 

Paglen speaks with EFF's Cindy Cohn and Jason Kelley about making the invisible visible: creating physical manifestations of the data collection and artificial intelligence that characterize today’s internet so that people can reflect on how to make tomorrow’s internet far better for us all. 

In this episode you’ll learn about: 

• The blurred edges between art, law, and activism in creating spaces for people to think differently. 
• Exploring the contradictions of technology that is both beautiful and scary. 
• Creating an artistic vocabulary and culture that helps viewers grasp technical and political issues. 
• Changing the attitude that technology is neutral, and instead illuminating and mitigating its impacts on society. 

Trevor Paglen is an artist whose work spans image-making, sculpture, investigative journalism, writing, engineering, and numerous other disciplines with a focus on mass surveillance, data collection, and artificial intelligence. He has had one-person exhibitions at the Smithsonian Museum of American Art in Washington D.C.; the Carnegie Museum of Art in Pittsburgh; the Fondazione Prada in Milan; the Barbican Centre in London; the Vienna Secession in Vienna; and Protocinema in Istanbul. He has launched an artwork into Earth orbit, contributed research and cinematography to the Academy Award-winning film “Citizenfour,” and created a radioactive public sculpture for the exclusion zone in Fukushima, Japan. The author of several books and numerous articles, he won a 2017 MacArthur Fellowship “genius grant” and holds a B.A. from the University of California at Berkeley, an MFA from the Art Institute of Chicago, and a Ph.D. in Geography from U.C. Berkeley. 

Transcript

TREVOR PAGLEN

I often do an exercise where I look at something that I'm critical of and try to imagine what the opposite of that might look like. Try to imagine, for example, what an internet might look like if it weren't the greatest technology of mass surveillance in the history of mankind, for example. What would space flight look like if it were not entirely organized around delivering nuclear weapons? And for me, that's an exercise, not so much of trying to recreate the world in a different image, but trying to get a tiny glimpse of what a different vision of the future might be.

CINDY COHN

That’s Trevor Paglen. He’s an artist who takes many of the issues that we’re concerned with here at EFF – things like online freedom, mass surveillance and data privacy – and turns them into fine art. 

I’m Cindy Cohn, the Executive Director of the Electronic Frontier Foundation.

JASON KELLEY

And I’m Jason Kelley, EFF’s Associate Director of Digital Strategy. This is our podcast series: How to Fix the Internet.

CINDY COHN

The idea behind this show is that we're trying to fix the internet. We're trying to make our digital lives better. You know, EFF spends a lot of time talking about all the ways that things could go wrong and jumping into the fight when things do go wrong online, but what we'd like to do with this podcast, is for all of us, is to give ourselves a vision of what the world looks like if we get it right.

JASON KELLEY

Our guest this week is Trevor Paglen. And we started our conversation off by talking about one of his art pieces that tries to demonstrate just those things.  

Autonomy Cube is a sculptural piece meant to be displayed in museums or other civic spaces – but it’s not just a static sculpture for people to walk by and look at. It contains several computers that provide a free wifi hotspot that routes anonymized browsing data through a Tor network.

TREVOR PAGLEN
The proposal there was to imagine what it would look like if the internet was built from the ground up in ways that preserved different civic values, right? 

CINDY COHN
I love that piece because of this just really flipping things on its head. Even going to a museum right there, the surveillance architecture is ‘let's track everybody, see what they do and see if we can feed them more of what they like’. And what you built was exactly the opposite. Something that by design all the way down to the tor node, like all the way down to how the thing that's guiding you through the museum is talking to the museum itself is designed with you at the center and protecting you at the center.

TREVOR PAGLEN
Exactly, and in a lot of cases we were able to convince museums to run exit nodes out of them as well. So museums typically have, you know, a lot of bandwidth. And so our idea was, can you use this institution, and I think about museums as being akin to libraries, as a infrastructure with which to promote privacy preserving values, I guess.

JASON KELLEY
I wanna talk a little bit about what happens to a viewer when they go to a museum and see a piece of yours. Because you're talking about the kind of restructuring the museum itself. But then I think your work also has an impact on, you know, people who see it to rethink, sort of, different aspects of technology, for example. So I was just in Boston and went to a few museums and ran into your, um, Reaper Drone piece, which I loved. And it really stuck out for me partly because I was like, ‘oh, I'm going to talk to him soon’. But also because it just was so distinct from, a lot of the other things in the, in the area.

Right. And one of the things about it, for those who haven't seen it, is it's a photo of a sky, uh, that's a little ominous. And there's a very tiny dot that you don't really know what it is, and you probably don't even see the dot until you read the description and see that there is a drone in the photo.

Can you talk a bit about what you’re hoping to get across with that photo?

TREVOR PAGLEN
I think about art in a lot of ways, and one of the ways I think about it a lot is that when you're making art, you're learning how to see the world. You're trying to talk to the other people that are in the world, but you're also having a conversation with your ancestors, and you're having a conversation with the people in the future. And I always think about the things that I'm making as being in conversation with people before me from different times, and I think about artworks from the past as being artifacts that are trying to show us what the world looked like at that point in time. 

So we're contributing to this conversation. You're saying, oh, well this is what the sky may have looked like to you in the 19th century. This is what the sky looks like to me here in the 21st century. So for me, the drone photographs were really thinking about what is the sky now? And the drone in the sky is something that it is very specific to our moment in time. However, it is participating in this very very long tradition of, you know, art is looking at the same thing and seeing it in different ways because they’re in different moments in history and different people.

JASON KELLEY
And how did the image itself come about? 

TREVOR PAGLEN
In terms of actually how the images are made, all the drones, you know, the military kind of assassination drones, in the world are mostly are flown from Nevada. There's a military base northwest of Las Vegas, about an hour, an hour and a half drive away called Creech Air Force Base. And the drones are all flown remotely by satellite uplinks from there. And they also fly them locally. They're doing training and things like that.

And when you drive out there, you kind of park on the side of the highway. You know, it's all dirt and desert out there. And you look up at the sky and when your eyes adjust, you notice there's all kinds of things that look like insects flying around. And you know, what you're seeing is them flying drones there.

So those images that you're referring to are just made by going out to that part of the desert and mostly shooting with an eight by ten camera, like a real 19th century style film camera, the huge piece of film, and photographing the sky. And when you develop the film you see these little insect looking things in it.

And those are the drones that are flying around in the sky there. It took a while to print them properly because the printer that I was working with assumed that they were like dust or bugs or something like that, were things I didn't want in the image. He was retouching them out and I was like, wait, what?

And so it had to, it took some, a little bit of work to get the workflow right on them.

CINDY COHN
It’s interesting how you had to work so hard to make the quiet part loud.

Music transition

So I wanna talk about something that's near and dear to our hearts at EFF, which is the work that you've done to really make visible NSA's spying and NSA's mass surveillance. And one of the things you did was you learned how to scuba dive so you could go take pictures of the under sea cables.

I'm a diver myself, so that was just fantastic to hear about. You wanna talk a little bit about that imagery and why you thought it was important to kind of, again, make that invisible thing more visible.

TREVOR PAGLEN
Well, I have to give you a lot of credit here because I think that train of thought really started with the work you guys were doing in the mid-2000s with Mark Klein in the Hepting and Jewel cases that you worked on, and what was so interesting, I guess, to me about that work was saying like, no, here it's this building, it's this room, it's this piece of equipment on this cable, and that was just a, what you were articulating in that work that you did was the fact that the internet is an exquisitely material thing. It’s not clouds.

JASON KELLEY
It's not magic?

TREVOR PAGLEN
It's not magic. Right.

CINDY COHN 
So it, you know, I mean, he wasn't that wrong when he said it was a series of tubes. I have to say, I've always felt like the, you know, the criticism of that metaphor seemed always a little off to me - because it kind of is.

TREVOR PAGLEN
So when Edward Snowdown started being in touch with Laura Poitras, um, I've been friends with Laura for a long time, you know, and obviously I'd had a history of looking at government programs and mass surveillance and that sort of thing. And so Laura asked me to sort of informally be part of a group of people that were looking at these documents, and she specifically asked me to help. Research them, just trying to decode them. You know, it's these very cryptic PowerPoint slides and that sort of thing, describing infrastructures that were really unfamiliar to anybody who really wasn't a part of that industry. So trying to decode them and then trying to think about how do you create images that speak to these infrastructures that speak to these surveillance programs.

So I did a lot of work on that. One of the things that I got interested in were cable landing sites, so the places on the continents where the continents are connected to each other with internet cables, and there's –  these are sites that are not evenly distributed. There's usually a few on each coast and you know, there are places where all the internet cables come together and the Snowden documents contained a list of the places globally where NSA had put sensors in the landing stations for those cables, you know, so was showing the places where internet cables come together and where the NSA had put sensors on those choke points, for lack of a better word. And they also had a list of all the undersea cables that they had put taps on as well.

So I started going around the world and photographing the ocean at those landing sites. And again, this goes back to what I was talking about before, it's like how do you see the ocean in ways that are specific to your moment in time? And I was doing a series of images where it was just a seascape, but I was framing the seascape in such a way that if I had done my research right beneath the water would be one of these choke points, these places where the internet cables were coming together.

And then I thought, well, I could take this a little bit further. Theoretically, if I dove into the ocean here and looked at the bottom, I should be able to see these cables. And so it's a little bit easier said than done, of course. But I learned how to dive and learned how to do underwater navigation and learned a little bit of bathemetry and other things so I could sort of identify places on the ocean floor where I thought it was really likely that if indeed I'd done everything right, if indeed these cables were where they purported to be, that you'd be able to see them.

So started going out with teams of divers and basically just doing search patterns on the bottom of the ocean and, and indeed, yeah. You'd start finding these cables and started, you know, had to learn underwater photography. 

But that was, that was really what that project was, is literally just see parts of these infrastructures that are so important in terms of the role that they play in our everyday lives, but that are at the same time very difficult to see, right. In this case, for physical reasons, but also conceptually, you know, because you don't, you don't imagine that the internet is, as you said, Cindy, a series of tubes.

CINDY COHN 
Yeah. It's interesting because on the one hand, it feels so big to think of tapping into the entire internet. And that's absolutely true. But the other thing that you really brought out was how banal it is, right? Fiber optic cables don't look like anything special down there.

And drones look like insects in the sky. That they've managed to be simultaneously tremendously important and tremendously boring. All at the same time. And I think that there's a cognitive dissonance there that's, um, kind of important when we're thinking about, you know, how did we get to this place where at this moment in time we are so surveilled.

TREVOR PAGLEN
I think about that a lot. Like, I think about what the world would be like if there was a physical manifestation of a particularly online tracking. Like what would that look like if you could feel it? What, what would that look like if that were corporeal in one way or another? And I think it would be absolutely terrifying and nobody would put up with it for an instant.

JASON KELLEY
One of our colleagues at EFF, Dave Maass always uses this rhetorical point that, you know, if you've got a surveillance camera on a street corner, maybe you've got one, maybe you've got five, depending on the shape. Would you, you might be okay with it, but would you be okay with five police officers standing on that corner 24/7? You know, because that's essentially what it is and I, I don't know if he's the progenitor of this rhetorical point, but it always struck me as a good one, to bring that up.

CINDY COHN 
We have this project called the Atlas of Surveillance, right, where we're doing Freedom of Information Act request, and Dave leads this project to try to really make more visible what's invisible, and make sure that people who live in a community know all the ways that they're being spied upon on.

MUSIC IN

JASON KELLEY

I want to jump in here for a little mid-show break to say thank you to our sponsor.

“How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians. So a tip of the hat to them for their assistance.

MUSIC OUT

Trevor’s work reminded me of a project that I’ve been working on at EFF. We’ve been traveling to the US-Mexico border to map out and take photos of the surveillance tech that’s down there by taking photos. Obviously my photos are nowhere near as artistically satisfying as anything Trevor does – but the point is to educate people about what these parts of surveillance look like. 

And thinking about my goals for that project, it got us wondering about the responses and results that Trevor hopes to evoke from what he does.

TREVOR PAGLEN

I think that a long time ago I came to terms with the fact that art is weird. It's really different in what it kind of proposes to do than legal work or activist work. And it, you know, these are Venn diagrams and there can be blurry edges between them.

But art, art can be very strange in the sense that it's, it changes over time. How you see a painting from the 19th century is not how that painting was necessarily seen then. And this kind of goes out endlessly. And so it's very protean in terms of that relationship between an artwork and its meaning.

And the way that I think about it is much more about trying to create a vocabulary. Trying to create a sense of sense, you know, rather than saying, okay, here I'm gonna show you this image and it's, this is going to, you're gonna have some kind of political reaction to that, or it's going to inspire some kind of activist response or what, what have you. 

I think it's much more similar to what you described about saying, this is what the world looks like, or this is my interpretation of what the world looks like, and do with that what you want. But There's a thing that you have now been taught to see. And I do think that that is quite important in the long term because it changes perception, it changes the relationship between what we see and the meanings that we ascribe to it.

And this is something that I learned from working with being been trained by the generation of artists that were involved in Act Up and kind of that moment of feminism and kind of queer activism in the eighties and early nineties where so much of that project was trying to redefine what identities were, redefine who was afforded what kinds of rights. And using symbolic languages as a way to make political claims, right? But in order to make the political claim, you need to invent the vocabulary with which to do that.

CINDY COHN
I love that. I mean, I really feel like the ambient culture, right, drives so much of what's going on in the political debate, but in ways that are kind of hard to track and hard to see. And I think that art showing us things that we didn't otherwise see as part of not only helping us think about what kind of world we wanna live in, the kind of sharp political decision making, but also just creating this space where we're all sharing, you know, in some cases the reality of our time in a better way or a more truthful way, right?

By showing us what's not seen, that helps create this space where political action can happen, but it's not linear, right? Again, it's more ambient. It's more like creating the space for people to be able to think differently. You know, changing people's minds is not easy and it's not a, you know, this is one of the things that we, I think we've all learned in this time, like a linear, logical argument that takes you from point A to point B to point C  can be very helpful in certain situations. But most people's emotional state and ambient emotional state has a huge role here that just isn't gonna be reached by the very best legal argument I can craft in a brief. 

We have several artists on staff at EFF and it's for that reason, right? The imagery and this cultural strategy of how do we build a better internet is, is not just, it's not just the, the, the language we use. It's also the imagery and the way that we play it and Hugh D’Andrade, who is our art director at EFF, always tells me, you can appeal to their logic, but you often have to appeal to their lizard brain. And, I think in some ways that's a little bit of what you're doing as well, although it's not direct advocacy.

You're trying to help us all have a lizard brain that's a little more grounded in reality you know, and the things that you can't see, as well as the things that you can.

TREVOR PAGLEN
And I have to give props to you and Hugh for that as well. I mean, you guys have really been masters at creating a visual culture around the causes that you take up and the, um,  the questions that you're asking. And I, I think that's actually been enormously beneficial to you. You know, you have like literally a visual vocabulary that you've created that other people can adopt. You know, you go around a conference, you have your stickers and the logos and all this kind of stuff. It really does contribute to a culture, and I think that's really important.

JASON KELLEY
I want to talk a little bit about one other piece that you have called The Standard Head. You do a lot around AI as well. Not just surveillance, but, but artificial intelligence in a variety of ways. And um, I wonder if you could talk about just what that piece is and how it came about.

TREVOR PAGLEN
So The Standard Head is a sculpture, it's just a bust. It's pretty big. It's about five feet tall or so. I've done a lot of work around AI and computer vision and from a lot of different perspectives, and one of the things that's interesting to me is what kinds of ideal forms are assumed in an AI model, a computer vision system, what have you. In other words, what are the underlying assumptions about what something looks like or what something, you know, how something should be interpreted. 

And so The Standard Head was a sculpture that comes from excavating the history of facial recognition and the first facial recognition using, you know, digital images that I know of and, and I think are the first ones were done by a guy named, um, Woody Bledso in the early 1960s, and he ran a outfit in Palo Alto called Panoramic Research, and he had gotten a bunch of funding from the CIA to create facial recognition. He incidentally also had a bunch of funding from the CIA to work on MK Ultra experiments. He was also trying to, you know, uh, remotely control animals, I think was the other big project that he was working on. And so the CIA said, we want facial recognition to exist, here's some money, figure it out. 

And what he did was, you know, he had to have, you have to create a mathematical model of what a face is, or what a head is in order to create a computer vision system that would be able to recognize what a head is in the first place. And so what he did is something that's quite typical of how this research has been done ever since was photograph all of the people that worked in his lab, and it's all white guys, of course. And then just measure all the facial key points, which are, you know, it's a system for assigning points to faces that actually goes back to phrenology in the early 19th century. 

And so he then averaged them all together to create what the kind of ideal type of a head would be, and then use that as a template to try to measure specific heads or images of heads.

And I wanted to reconstruct that ideal type that was in this first facial recognition model. To me, this is akin to like Greek sculpture, things like that, right? At different moments in history, there's been different conceptions of what the human is, what the human should look like, and I'm really interested in that in the history of computer vision and AI models.

You see that conception change over time. So you see these experiments done by Bledsoe in the early 1960s, the next real generation of facial recognition kind of starts again in the 1990s and again,the military goes out, funds a bunch of, um, university laboratories to try to invent this stuff. The labs realize that they need a bunch of pictures of people's faces that are digitized to do the research on.

And in the 90s they do two things. They create a data set called the FERET data set, which becomes a NIST standard, and that one was made by photographing people mostly who worked at military bases in the DC area and created this huge data set of, of thousands of pictures of people that worked on military bases.

And then the second NIST data set came from mugshots. Right. So it's the nineties. You don't have Instagram. You can't just get all a bunch of selfies, who has a bunch of selfies? The FBI has a bunch of, well not selfies, but images of people made under very coercive circumstances.

 And so to me that's just, it's interesting and telling that the foundations of facial recognition are really in phenology, in CIA, MK Ultra-adjacent experiments and experiments on the faces of prisoners. Right? So recovering those histories and recovering those models is something that, for me personally, I think there's something to be learned from.

JASON KELLEY
Yeah. Yeah. I, I think a lot of people, as Cindy said, we, we make an argument that facial recognition is biased, and you can point out the, the statistics of that bias. But hearing that and getting that from maybe looking at some of your pieces, I think hits that lizard brain to say, oh, I see , I see in a different kind of ‘the vibes are off’ way that really feels wrong about, um, about its use, uh, looking at that history and things.

CINDY COHN
One of the things that I think you also bring to light, or at least walk the line of, is you know, we love technology. At EFF we're fans of tech. We want technology to make our lives better and easier. I don't wanna live in a world in which, you know, we just all pretend like there's no technology and go into the woods if there's any woods left and try to pretend like we don't have a technological benefit. And I think that trying to walk that line between loving tech and sometimes even noticing that tech is really beautiful. You know, I often think of that Leonard Cohen song, you know, ‘we're blinded by the beauty of our weapons’, right? It's very, beautiful and gorgeous to see some of the technology that is scary. Some of it's banal and we've talked about that, but some of it is really gorgeous and I was wondering how you think about that or if you think about that, like how sometimes we get romance by the beauties of our technology and we don't see the dark side and how to both recognize that and also, you know, be, you know, not be, not be romanced by it.

TREVOR PAGLEN
That's a very complex and interesting point that you're making and I totally agree with it. There's so many different ways to talk about that. I think over the years I've been criticized for, you know, people look at some of the work I do and say, you know, you're taking something that's bad and you're making it look good, or making it pretty, or making it look beautiful.

And I say, you know, if I take you out to the desert and I show you the night sky, there are few things in this world that's more beautiful than a spy satellite flickering like a star, you know, through the Milky Way on a starless night. That doesn't mean it's good. I would like to live in a world in which good things looked beautiful and bad things looked ugly, but that's just not how it works. And I think that we can live with those contradictions. And I think to me it's almost irresponsible to not inhabit that complexity. Right? But we don't live in a world that's simple. Aesthetics are not simple. 

So that's one avenue we could go down in terms of, of talking about technology in relation to aesthetics. There are many other avenues that we could go down as well, and we can think about. The fact that very often when we're talking about technology, we are very confused about what it is that we're actually talking about in the sense that, I guess in my mind, it's impossible to cordon off technology from society, from politics. There's politics IN technology, you know, um, that is literally what it's made out of. Um, we talked earlier about, you know, internet protocols, for example. Like there is a politics to the communications protocols, for example, that are used. So there's another question there about what work the aesthetics in relation to technology can do to either try to point out those politics or try to obfuscate them, right?

And these are very complex dances and I think something that we're both very interested in is, is kind of teasing out the mechanics of those dances and trying to see how technology, politics, society, and culture are interrelated by learning how to see better, I guess.

CINDY COHN
Yeah. Yeah. Well, I'm gonna circle you back to the question we started with. So let's say we start getting all of this right? We. You know,  we're building a, a society where our technologies serve us instead of serving us up. We're using, AI and machine learning in ways that are really serving us rather than the other way around.

What are the signs of things you would see as an artist or that you would maybe not see as an artist, but what, how would things look different in this moment if we were, if we were doing better. 

TREVOR PAGLEN
One of the things that I'm happy to see is I think that there is a generation of technologists, or at least technology adjacent people, that don't conceive of technology as being separate from politics. And I think this is really obvious when you're looking at machine learning kind of stuff, right? And you have the - not to create too much of a caricature - but you have this received idea in engineering that, ‘oh, we just build technology and it's neutral and it's something that's outside of society and it's a, it's a hammer and you can use it to, you know, do whatever you want.’

But I think that that idea is changing. And I think that that is becoming a more obviously untenable position to have. And I think the people that maintain that attitude increasingly look foolish, you know, in public. And I think that's a good thing. I think that that can lead to a more fruitful way of thinking about how technology changes society, and perhaps can lead towards a society in which we can understand what the implications of deploying different technologies might be, and then decide whether or not we want that. 

That's really hard to do and it's really hard to do that under, you know, market conditions or capitalism or to do in environments that are essentially unregulated. However, that is a shift that I see happening around the edges of that conversation, and I think that's a really, um, a good thing.

CINDY COHN
I love that because it comes back to the people, right? That the people who are building, the people who are thinking about, the people who are interacting with technology are the answer, right? And part of what you do is try to make that visible so that we can grow that community of people. And that's one of the things that your art is trying to do, you know, what it really means to be alive right now is to, to see some of the things that are, are, are otherwise not very well seen in our technological society. And that's gonna empower more people to take the position that they wanna build something better.

Music transition

JASON KELLEY

That was really great. I really enjoyed that conversation with Trevor to talk about art and activism and kind of how he gets in the headspace of what it is that he does, which is really amazing and I think helpful for all of us. But Cindy, what about what Trevor said really hit you when you think about this, you know, later this week, what's the part that you're gonna really take away and keep thinking about?

CINDY COHN

I think the thing that struck me that was so lovely was really about art and this idea that art is, About trying to have a conversation with the past and the future about what it's like to be alive today, and that the pictures of the drones and the pictures of the undersea cables are part of trying to capture really, what our modern life is like, not just on the surface, but you know how the sky, you know, the people have been looking and photographing and painting and creating images of the sky, trying to recreate the sky, um, for generations past and will for generations in the future.

And that right now, reaper drones, right? Like things that really murder people are part of our sky. And making that visible and capturing it is part of the artist's conversation with the past and the future. I just think that's beautiful and exactly the kind of insight that, you know, art can bring to the conversation that is, you know, quite different than what we as activists and lawyers and, you know, people who are in the daily fights really bring. It's additive.

JASON KELLEY

Yeah, yeah. I think that we are often kind of in the weeds and his exercise is a way of getting out of those weeds and just looking at, well, to mix my metaphors at the forest instead of  the individual trees. But it was really beautiful and really helpful.

CINDY COHN
Yeah. And you know, of course, I completely agree with you that what Trevor is doing is a form of activism and comes from a place of really wanting to make our world better. And I think that I also really liked his looking at the things he doesn't like about the internet and trying to reverse them.

And all the way down to the museums, right? Thinking about how museums could be a place of service to us rather than a place of tracking to us. And how that’s possible and even, you know, making art out of it.

Theme music in

JASON KELLEY

Well that’s it for this episode of How to Fix the Internet.

Thank you so much for listening. If you want to get in touch about the show, you can write to us at podcast@eff.org or check out the EFF website to become a member or donate, or look at some of the merch we have available. I don’t know where you are, but it’s cold here and a hoodie is just right for wearing indoors and outdoors.

This podcast is licensed Creative Commons Attribution 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators. You can find their names and links to their music in our episode notes, or on our website at eff.org/podcast. 

Our theme music is by Nat Keefe of BeatMower with Reed Mathis

How to Fix the Internet is supported by the Alfred P. Sloan Foundation's program in public understanding of science and technology. 

I’m Jason Kelley…

CINDY COHN

And I’m Cindy Cohn.

Theme music out

ANNOUNCER

This podcast is licensed Creative Commons Attribution 4.0 International, and includes the following music licensed Creative Commons Attribution 3.0 Unported by its creators

CommonGround by airtone featuring simonlittlefield.

Additional beds and alternate theme remixes by Gaëtan Harris.

EFF Intern Reema Moussa authored this post.

In our highly digitized society, online speech like posts, messages, and emails, can be taken out of context, repackaged in ways that distort or completely lose their meaning, and spread far beyond the intended recipients.

With this in mind, we are urging the Supreme Court to rule that any time the government seeks to prosecute someone for threatening violence against another person, it must show that the speaker subjectively intended to threaten before their speech can be considered a "true threat" not protected by the First Amendment.

In a brief filed with the Student Press Law Center, we argued that people should not face prison time because they misjudged how many people would see their speech or how an unintended recipient would react to the speech

The First Amendment requires that true threats are only those in which a speaker subjectively intends to threaten someone, so as to prevent protected speech such as humor, art, misunderstandings, satire, and misrepresentations, we told the court.

True threats are one of the very few categories of speech that has no constitutional protection. For this reason, it is important that true threats be narrowly defined. But to date, the Supreme Court has not decided the required state of mind a speaker must have. Some state and lower courts require that the speaker have a subjective intent to threaten the person when they speak. But other courts, and some state laws, believe the First Amendment only requires that an objectively reasonable person would perceive the statement to be a threat of violence.

The Supreme Court is considering a case called Counterman v. Colorado to resolve this question. The Court previously considered the question in 2014 in Elonis v United States, in which EFF also filed a friend of the court brief, but ultimately decided that case on other grounds.

In our Counterman brief, we argue that the First Amendment requires the subjective standard, particularly given the decontextualization that readily occurs in online communication, and social media in particular.

What’s more, speech that a reasonable person may interpret as a violent threat includes much protected and valuable speech. There is no historical First Amendment exception for violent language in general. To be clear, EFF and the Student Press Law Center do not challenge the need to have a true threats exception to the First Amendment. We acknowledge the seriousness of true threats and the speech-inhibiting effects they can have.

But the requirement of a subjective intent to threaten remains necessary to distinguish these true threats from the misunderstandings and artistic expression discussed above, striking the proper balance between protected and unprotected speech.

Online communication, while providing countless benefits and opportunities for connection and collaboration in our digitized society, also poses challenges for understanding each other. As speech spreads on online platforms, its original context is easily obscured and often lost completely.

And it's difficult to control just who our audience is. Even if an account is limited to those who are in our network of friends, trusted confidants, or contacts, it can be difficult to limit the spread of virtual messages through screenshotting, reposting, and engagement with that content.

As our brief states:

“A speaker’s subjective intent standard is also a practical necessity when dealing with social media and other online communications because a purely objective standard, negligence or otherwise, does not account for the ways in which communication on the Internet can strip speech of vital context, necessary to understand the words’ full meaning, or how quickly speech can be recontextualized from the time it is first posted online until it ultimately reaches a person who interprets the speech as threatening. Indeed, the original speaker may have never intended for the that recipient to see the speech that caused them fear.”

The Supreme Court is scheduled to hear arguments in the case on April 19, with a decision expected in June.

 

The Department of Homeland Security’s Inspector General has released a troubling new report detailing how federal agencies like Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI), and the Secret Service have conducted surveillance using cell-site simulators (CSS) without proper authorization and in violation of the law. Specifically, the office of the Inspector General found that these agencies did not adhere to federal privacy policy governing the use of CSS and failed to obtain special orders required before using these types of surveillance devices. 

Even under exigent circumstances, where law enforcement use of technologies that track cell-phone use are deemed immediately necessary, law enforcement must still get a pen register order. The pen register order is required by statute and policy even though exigency otherwise excuses police from having to obtain a conventional warrant. The Inspector General noted that the agencies didn't follow the rules in these cases either.

Cell-site simulators, also known as "Stingrays" or IMSI catchers, are devices that masquerade as legitimate cell-phone towers, tricking phones within a certain radius into connecting to the device rather than a tower. 

Cell-site simulators operate by conducting a general search of all cell phones within the device’s radius, in violation of basic constitutional protections. Law enforcement use cell-site simulators to pinpoint the location of phones with greater accuracy than phone companies. Cell-site simulators can also log IMSI numbers (unique identifying numbers) of all of the mobile devices within a given area. 

Unfortunately, the report redacts crucial information regarding the total number of times that each agency used CSS with and without a warrant, and when they used the devices to support external information. The OIG should release this information to the public: knowing the aggregate totals would not harm any active investigation, but rather inform public debate over the agencies' reliance on this invasive technology. Make no mistake, cell-site simulators are mass surveillance that draws in the cell signal and collects data on every phone in the vicinity. 

The fact that government agencies are using these devices without the utmost consideration for the privacy and rights of individuals around them is alarming but not surprising. The federal government, and in particular agencies like HSI and ICE, have a dubious and troubling relationship with overbroad collection of private data on individuals. In 2022 we learned that HSI and ICE had used overly-broad warrants to collect bulk financial records concerning people sending money across international borders through companies like Western Union. Mass surveillance of this kind is a massive violation of privacy and has elicited the concern of at least one U.S. senator hoping to probe into these tactics. 

Most people carry cell phones on them at any given moment. EFF will continue to fight against careless government use of cell-site simulators, and we will continue to monitor federal agencies that rely on secrecy and a strategic ignorance of the law in order to wield powerful and overly broad surveillance powers and technologies.

Illustrations by Chelsea Saunders, produced in collaboration with the Nib.

March 21, 2023 Update: A past version of this comic depicted Harriet Tubman writing. This has been amended to show Harriet Tubman dictating her words to a collaborator.

From the days of chattel slavery until the modern Black Lives Matter movement, Black communities have developed innovative ways to communicate to fight back against oppression.

EFF's Director of Engineering, Alexis Hancock, documented this important history of codes, ciphers, underground telecommunications and even dance in a blog post that became one of our favorite articles of 2021. In collaboration with The Nib and illustrator Chelsea Saunders, we now have adapted "Coded Resistance" into comic form to further explore the stories of slave revolts, the coded songs of Harriet Tubman, civil rights era strategies for circumventing "Ma Bell," and the use of modern day technology to document police abuse. The comic is available below, as well as on the EFF Instagram feed, and also via The Nib.

Our hope is that by combining images and text, we can help bring the history of resistance to surveillance to life. And like all EFF content, it's shareable and remixable under a Creative Commons - Attribution license. If you enjoy the comic and would like to see more illustrated takes on our blog posts, let us know!

1. Authors: Florida State College at Jacksonville and Scott Matthews. African American History and Culture. Pressbooks, https://fscj.pressbooks.pub/africanamericanhistory/#main.
2. Scott, Julius S. The Common Wind: Afro-American Currents in the Age of the Haitian Revolution. Verso Books, 2018.
3. Dunn, Richard S. (2014). A Tale of Two Plantations: Slave Life and Labor in Jamaica and Virginia. Harvard University Press. pp. 333–337
4. When I Die I Shall Return to My Own Land: The New York Slave Revolt of 1712. Westholme Publishing./Dunn, Richard S. (2014). A Tale of Two Plantations: Slave Life and Labor in Jamaica and Virginia. Harvard University Press. pp. 333–337
5. “FBI Records: The Vault — COINTELPRO Black Extremist Part 07 of 23.” FBI Vault, https://vault.fbi.gov/cointel-pro/cointel-pro-black-extremists/cointelpro-black-extremists-part-07-of/view.

Intern Reema Moussa contributed to this blog post.

As government agencies increasingly use digital tools to track citizens and immigrants, we need to use the Freedom of Information Act (FOIA) to make that surveillance transparent. But while the government opens its databases to public scrutiny, it must also protect individual privacy.

Late last month, the Second Circuit Court of Appeals held that U.S. Immigration and Customs Enforcement (ICE) must be transparent and respect privacy by producing deidentified data on how it arrests, classifies, detains, and deports immigrants. The court agreed with plaintiff American Civil Liberties Union (ACLU) that ICE must also replace Alien Identification Numbers (A-Numbers), exempt from FOIA because they would identify individual immigrants, with unique but random identifiers.

This allows the public to “track datapoints pertaining to individual, unidentified aliens,” according to the court. It held that since ICE can use an A-number to get all enforcement records from its databases on an immigrant, so should the public, while respecting that individual’s privacy. The Court found this substitution of unique identifiers “does not alter the content of any record” (not required by FOIA), “but only preserves the computer function necessary to afford the public access” (required by FOIA). The court cited many examples from EFF’s amicus brief of other courts ordering the government to use such “anonymization techniques,” including unique identifiers, blurring faces in videos, and scrambling identifying data.  

The Second Circuit also cited and agreed with EFF’s amicus brief that the E-FOIA Amendments required ICE to substitute unique identifiers because that is the “form or format” ACLU requested and it is “readily reproducible.” ACLU even provided the simple lines of code that ICE could run to substitute out the exempt A-numbers. The court explained that Congress “expected agencies to take reasonable steps to effect retrieval in the requested form or format, even if that required some conversion of data.”

What if we told you the Stupid Patent of the Month has a sponsor, but we don’t know who it is? That would seem shady, wouldn’t it? 

This month’s stupid patent, U.S. Patent No. 9,986,435, was brought to you—to all of us, really—from the murky depths of the litigation finance industry. Originally assigned to a shell company linked to giant patent troll Intellectual Ventures, this patent was sold off and is now in the hands of Mellaconic IP LLC, a recently-created Texas shell company. Mellaconic has sued more than 40 companies over claims that a vast array of HR software infringes their patent.

Here is Mellaconic’s key patent claim: 

1. A method to perform an action, comprising:

receiving, by a first device located at a first geographical location, one or more messages that indicate geographical location information of a second device located at a second geographical location, and

include a request for a first action to be performed by the first device, wherein the one or more messages are received from the second device, and wherein the geographical location information of the second device acts as authentication to allow the first action to be performed by the first device; and

autonomously performing, based at least on the received one or more messages, by the first device, the authenticated first action.

In other words: A device receives a request from a second device to take action. That action may or may not be performed, depending on the location of the second device. 

Mellaconic’s lawyers say this applies to something hourly workers do every week: clock in and clock out of their jobs. Even though their patent doesn’t even discuss clocking in—and despite the fact that clocking in has happened since, well, clocks—they’ve sued a huge swathe of U.S.-based companies that market human resources and payroll software. 

For instance, they sued Paychex, saying that the Paychex server is the first device, and the second device is a mobile user with the Paychex Flex app, which, like many HR apps, allows for clocking in and out of a job. Same thing for Hi Bob, a smaller HR company that Mellaconic sued in August. They’ve repeated this allegation—that clocking in (but with an app!) equals infringement of their patent, which means the companies owe money to the people behind Mellaconic.  

Who’s Making Money From This Patent? 

Mellaconic, like so many patent trolls, has been able to hide its true beneficiaries. Most of the 40 companies that Mellaconic sued have likely paid to settle, because their cases ended within a few months, before any significant hearings. That suggests many defendants settled for less than the hundreds of thousands (potentially even millions) of dollars that it would have cost to fight off this stupid patent. 

Unusually in this case, a Delaware federal judge overseeing some of Mellaconic’s cases has insisted that the supposed owner come to testify in court. That’s what led Hau Bui, a Texas restaurateur and food-truck owner who says he owns Mellaconic, to travel to Delaware in November and testify under oath in federal court. 

But Hau Bui has now said under oath (see transcript p. 87) that he hasn’t paid anything for Mellaconic’s patent, nor the other patents it hasn’t yet sued over. He hasn’t paid anything to Mellaconic’s lawyers (p. 96), or any other litigation expenses. And Bui said he only collects 5 percent of Mellaconic’s settlement money (p. 91), which has amounted to about $11,000 (p. 98).

Bui was promised this “passive income” stream by Linh Dietz, a person whose name has come up at every stage of the Delaware investigation, and is linked to IP Edge, a large-scale patent troll. Every supposed “owner” of the patent troll entities who have testified in Delaware acquired their patents, for free, by talking to Dietz and signing paperwork she provided. 

Patent Trolls Have A Growing Network of Secret Funders

IP Edge is far from the only player in the vast world of patent trolling, which continues to account for the great majority of patent lawsuits against tech companies—more than 88% in 2022. Why do these lawsuits keep coming even while overall patent litigation is going down? 

In part, it’s because there is nothing stopping aggressive litigation finance from paying out money to fund patent lawsuits, in the hopes that “investing” in a broad campaign of patent lawsuits will pay off a big return. Unified Patents, a company that sells patent defense services, recently estimated that about 30% of all patent lawsuits are now backed by third-party financing.  

That’s one reason why EFF, along with other public interest groups, filed a brief stating that the Delaware investigation must be allowed to continue. The lawyers working for Mellaconic and related shell companies are doing everything they can to shut it down. They appealed to the Federal Circuit, twice, and were rejected both times. 

The public deserves to know more about patent trolls that are using our public courts to seek rents for innovations they had nothing to do with. That’s especially true as litigation finance helps spread lawsuits over patented “inventions” like clocking in on an app. 

This post was written by intern Devin Sullivan.

Should it be a federal crime to encourage an undocumented immigrant to remain in the country? In a friend of the court brief filed today with the U.S. Supreme Court, we argue that such a prohibition is facially unconstitutional on First Amendment grounds that it would sweep up and prohibit constitutionally protected speech.

Our brief was filed in United States v. Hansen, a challenge to the Encouragement Provision in 8 U.S.C. § 1324(a)(1)(A)(iv), which makes it a federal crime to “encourage or induce” an undocumented immigrant to “reside” in the United States, if one knows that such “coming to, entry, or residence” in the U.S. will be in violation of the law. Effectively, the provision silences the speech of all U.S. persons who wish to support or cheer on others pursuing the American dream.

Filed on behalf of EFF, Immigrants Rising, Defending Rights & Dissent, and Woodhull Freedom Foundation, the brief supports defendant Helamand Hansen. Hansen is arguing that the Supreme Court should affirm a decision by the U.S. Federal Court of Appeals for the Ninth Circuit, which found that the Encouragement Provision violated the First Amendment under the overbreadth doctrine.

This principle, in First Amendment jurisprudence, applies when a regulation of speech sweeps too broadly and prohibits a substantial amount of protected as well as non-protected speech. According to the Ninth Circuit, the Encouragement Provision is unconstitutionally overbroad because it prohibits, for example, “encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services” or “providing certain legal advice to undocumented immigrants.”

We argue that the Ninth Circuit was correct, emphasizing the online speech rights of hundreds of immigration advocacy and services organizations which the Encouragement Provision threatens. For example, Informed Immigrant, which also filed a brief supporting Hansen, “maintains a Know Your Rights section in its online resource library with a wide range of information for undocumented immigrants and their families, including information about their rights inside and outside their homes, what to do if someone you know is arrested, how to prepare your family in the event of an immigration raid, and guidance for finding a lawyer.” If the Encouragement Provision is upheld, this type of speech, and any similar speech that emboldens undocumented immigrants online, will be silenced.

We further emphasize in the brief that protected online speech directed to undocumented immigrants is especially vulnerable to the Encouragement Provision’s vagaries because online speakers rely on numerous intermediaries that don’t want to risk violating the statute. All online speakers rely on intermediaries like domain name registers, web hosts, and social media platforms. To avoid the risk of the Encouragement Provision’s criminal penalty and the burden of having to defend even meritless charges, intermediaries will likely censor users’ speech if it so much as approaches illegality.

In our brief, we argue that when platforms face the threat of criminal penalties, “this inevitably results in the heckler’s veto, whereby any user can effectively censor another user by notifying the intermediary that the other user’s speech is unlawful, regardless of the merits of that notice.” This means that, if the Encouragement Provision is upheld, the speech of countless immigrants and immigrant rights advocates on the internet will be chilled.

United States v. Hansen is set for oral arguments on March 23, 2023. Several years ago, in United States v. Sineneng-Smith, the U.S. Supreme Court declined to rule on this very same First Amendment issue, finding that the defendant in that case had not properly raised it. We hope that this time, the U.S. Supreme Court takes the opportunity to recognize the free speech rights of many individuals on an issue so highly contested in political debate.

For the brief: https://www.eff.org/document/us-v-hansen-eff-brief

 

 

 

 

 

 

 

 

 

 

In a partial victory for police accountability, the U.S. Court of Appeals for the Fourth Circuit held that the First Amendment protects a passenger who livestreams the traffic stop of the car he is traveling in. EFF filed an amicus brief in Sharpe v. Winterville in 2021 in support of the plaintiff. Unfortunately, the Fourth Circuit’s opinion is not a total win for First Amendment rights because the court curtailed the plaintiff’s ability to hold the individual officers accountable.

After police officers tased, choked, and severely beat Dijon Sharpe during a traffic stop, he decided that next time he was in a car that was pulled over, he would livestream and record the encounter. Ten months later, in October 2018, Sharpe, sitting in the passenger seat of a stopped car, took out his phone and started livestreaming on Facebook.

When an officer saw that he was livestreaming, he grabbed Sharpe and tried to take the phone. The officer explained that Sharpe was free to record the encounter, but he could not livestream due to supposed concerns about officers’ real-time safety (a policy later ascribed to the city of Winterville, NC). Sharpe sued to vindicate his First Amendment rights.

The Good News: The Fourth Circuit Held That the First Amendment Protects the Right to Livestream and Record Police Officers

It’s great that the Fourth Circuit held that individuals have a First Amendment right to livestream their own traffic stops. The court rightly acknowledged, “Creating and disseminating information is protected speech under the First Amendment.”

In so holding, the Fourth Circuit stated “we agree” with other courts that have recognized that the First Amendment “cover[s] recording—particularly when the information involves matters of public interest like police encounters … Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record.”

This is consistent with several other circuits that have held that the First Amendment protects the recording of on-duty police: First, Third, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh. The Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) has rightly expanded the First Amendment rights of individuals living within its jurisdiction.

The Fourth Circuit Should Have Applied Strict Scrutiny

Although the Fourth Circuit held that a First Amendment right exists to livestream traffic stops, it arrived at that conclusion using a vague scrutiny analysis that generally considered the governmental interest in officer safety and how “tailored” the prohibition on livestreaming is to that interest.

The court declined to decide whether prohibiting livestreaming is a content-based restriction, requiring strict scrutiny—the highest standard of First Amendment analysis, under which most governmental speech restrictions are struck down—or is a content-neutral restriction requiring intermediate scrutiny, a less rigorous standard of review.

We believe that strict scrutiny should apply because prohibiting livestreaming (or recording) police encounters is based on content—the actions of police officers specifically. The court should have created a high bar for the government here by holding that strict scrutiny is the appropriate standard of review.

This is important because this case is only at the pleading stage—that is, Sharpe’s allegations were considered, but no evidence has yet been proffered by either side. When this case goes back to the district court, it’s possible that the city will provide compelling evidence that concerns around real-time officer safety are significant in the context of livestreaming. The defendants argue that “livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter.” As the Fourth Circuit stated, “This officer-safety interest might be enough to sustain the policy. But on this record we cannot yet tell.” If the Fourth Circuit had explicitly held that the more rigorous standard of strict scrutiny applies, it would have made it more likely that Sharpe will prevail on his First Amendment claim in the district court.

The upside is that the Fourth Circuit held that Sharpe’s First Amendment claim survives regardless of whether the prohibition on livestreaming traffic stops is content-based or content-neutral—meaning that the government’s interest in officer safety is still a weak one even under a lower, more deferential (to the government) standard of review.

We agree that the city’s attempt to evade liability should fail under any standard of review. While officer safety is important, livestreaming police does not endanger officer safety. Police have long been trained to manage unfolding events that are subject to live media coverage, including political protests and traffic chases. If an officer has individualized suspicion that a particular motorist is using their device to summon an accomplice to undermine the officer’s control of the scene, then the officer might seize the device, whether the motorist is communicating by text message or livestream. But livestreaming is not per se dangerous, and First Amendment rights do not yield to speculative concerns.

“Controversial” Doctrines Thwart the Vindication of Constitutional Rights

A very disappointing aspect of the case is that the Fourth Circuit thwarted Sharpe’s ability to hold the individual officers accountable. And Sharpe’s ability to hold the city of Winterville accountable for the officers’ First Amendment violation isn’t guaranteed.

Qualified Immunity Strikes Again

The Fourth Circuit held that qualified immunity bars Sharpe from obtaining monetary compensation (“damages”) directly from the officers for the constitutional violation, finding that it was not “clearly established” at the time of the traffic stop that prohibiting Sharpe from livestreaming violated the First Amendment.

Notwithstanding seven other circuits generally protecting the right to record the police, the court stated that there was no controlling or persuasive authority that held “with specificity” that the First Amendment protects livestreaming of one’s own traffic stop.

EFF opposes qualified immunity, and there’s a growing movement to overrule the judicially created doctrine that allows government officials to avoid accountability for constitutional violations.

Municipal Accountability Is Not Guaranteed

Sharpe also seeks to hold the city of Winterville responsible for the actions of its employee police officers. Although the Fourth Circuit held that Sharpe’s First Amendment claim against the city survives and that the case must go back to the district court, it’s not guaranteed that Sharpe will prevail against the city.

Unfortunately, to require a local government to pay damages, it’s not enough that an on-duty local government employee violated an individual’s constitutional rights. According to another judicially created doctrine, municipalities can’t be held vicariously liable for the constitutional violations of their employees. To hold a government entity responsible, an employee’s constitutional violation must have been pursuant to an official municipal “policy or custom,” according to the U.S. Supreme Court in a wrongly-decided case called Monell v. Department of Social Services of the City of New York (1978).

Thus, Sharpe must provide evidence, when the case goes back to the district court, that the officers interfered with the livestreaming of his own traffic stop pursuant to an official police department—and by extension, city—policy.

The Fourth Circuit found Sharpe’s allegation of such a policy plausible, stating, “It is a reasonable inference that absent a policy the two officers would not have taken the same course.” But this remains to be established in the trial court.

The Fourth Circuit rightly acknowledged the frustration that many litigants feel when seeking justice for their constitutional rights being violated:

Plaintiffs seeking redress … for a violation of their constitutional rights must walk through a narrow gate. The doctrines of qualified immunity and Monell liability for local governments substantially diminish their chances. Both doctrines are controversial. They have been criticized for being atextual, ahistorical, and driven by policy considerations. But they are also binding.

We need new legislation both to end qualified immunity, which wrongly protects law-breaking officers, and to end municipal immunity, which wrongly protects the cities that employ them. When police violate digital rights and other human rights, the victims must be made whole with damages, payable by both the officers and the city. This will incentivize officers to respect the Constitution and incentivize cities to ensure that they do so. And this will ensure that courts continue to develop constitutional law that meets the new challenges posed by emergent technologies.

Too often we let the rich and powerful dictate what technology’s future will be, from Mark Zuckerberg’s Metaverse to Elon Musk’s neural implants. But what if we all were empowered to use our voices and perspectives to imagine a better world in which we all can thrive while creating and using technology as we choose? 

That idea guides Deji Bryce Olukotun’s work both as a critically acclaimed author and as a tech company’s social impact chief. Instead of just envisioning the oligarch-dominated dystopia we fear, he believes speculative fiction can paint a picture of healthy, open societies in which all share in technology’s economic bounty. It can also help to free people’s imaginations to envision more competitive, level playing fields. Then we can use those diverse visions to guide policy solutions, from antitrust enforcement to knocking down the laws that stymie innovation. 

Olukotun speaks with EFF’s Cindy Cohn and Jason Kelley about rejecting the inevitability of the tech future that profit-driven corporate figureheads describe, and choosing instead to exercise the right to imagine our own future and leverage that vision into action. 

%3Ciframe%20scrolling%3D%22no%22%20seamless%3D%22%22%20src%3D%22https%3A%2F%2Fplayer.simplecast.com%2F61de2f6f-5a34-4190-b5c7-328a0f785d6f%3Fdark%3Dfalse%26amp%3Bcolor%3D000000%22%20width%3D%22100%25%22%20height%3D%2252px%22%20frameborder%3D%22no%22%20allow%3D%22autoplay%22%3E%3C%2Fiframe%3E Privacy info. This embed will serve content from simplecast.com

  
  

This episode is also available on the Internet Archive.

In this episode you’ll learn about:  

• The influence of George W. Bush’s presidency and Silicon Valley’s rapid expansion on Olukotun’s seminal “Nigerians in Space.” 
• The value in envisioning a “post-scarcity” world. 
• Using speculative fiction to more accurately portray the long, complicated arc of civil liberties battles. 
• The importance of stakeholder-based activism in advancing solutions to critical issues from protecting democracy to combatting climate change. 

Deji Bryce Olukotun is the author of two novels and his fiction has appeared in five book collections. His novel “After the Flare” won the 2018 Philip K. Dick special citation and was chosen as one of the best books of 2017 by The Guardian, The Washington Post, Syfy.com, Tor.com, Kirkus Reviews, among others. A former Future Tense Fellow at New America, Olukotun is Head of Social Impact at Sonos, leading the audio technology company’s grantmaking and social activations. He previously worked at the digital rights organization Access Now, where he drove campaigns on fighting internet shutdowns, cybersecurity, and online censorship. Olukotun graduated from Yale College and Stanford Law School, and earned a Master’s in creative writing at the University of Cape Town. 

Music

Music for How to Fix the Internet was created for us by Nat Keefe of Beatmower with Reed Mathis. This podcast is licensed Creative Commons Attribution 4.0 International, and includes the following music licensed Creative Commons Attribution 3.0 Unported by their creators: 

http://dig.ccmixter.org/files/djlang59/37792

Drops of H2O ( The Filtered Water Treatment ) by J.Lang (c) copyright 2012 Licensed under a Creative Commons Attribution (3.0) license. Ft: Airtone

http://ccmixter.org/files/NiGiD/62475

Chrome Cactus by Martijn DeBoer (c) copyright 2020 Licensed under a Creative Commons Attribution (3.0) license.

__________________________________

http://ccmixter.org/files/JeffSpeed68/56377

Smokey Eyes by Stefan Kartenberg (c) copyright 2017 Licensed under a Creative Commons Attribution (3.0) license. Ft.: KidJazz

Transcript

DEJI BRYCE OLUKOTUN 
When you imagine your own future, it opens up possibilities. But a lot of futuristic thinking actually emanates from very powerful people. So Big Tech, you can think of the Elon Musks of the world presenting a vision as if it is going to happen and it's inevitable.

We sometimes mistake this futurist thinking as fact, when there's an agenda behind it. So, Elon Musk for example, saying that brain neural interfaces are inevitable. Or you see it in the crypto space: crypto's inevitable, the metaverse, you name it. There might be some validity to these futures that people are imagining. There might be some good experiences that benefit everyone, but there's often an agenda and we lose that. 

So we all deserve the ability to imagine these futures for ourselves and for our communities because if we just cede ground and say, well, that's the vision, the metaverse is coming, well, it's going to look like the person who is pushing that metaverse forward and not necessarily represent a lot of people and what they want or what they need.

CINDY COHN

That’s Deji Bryce Olukotun. He’s a science-fiction novelist with a background in policy, law and activism. Deji’s done a lot of work around protecting digital freedom and internet access, but he also spends a lot of time thinking about how important it is for all of us to imagine the world we want to live in for OURSELVES – as opposed to just accepting the inevitability of the visions of the future given to us by the rich and powerful.

I’m Cindy Cohn, the Executive Director of the Electronic Frontier Foundation.

JASON KELLEY

And I’m Jason Kelley, EFF’s Associate Director of Digital Strategy. This is our podcast: How to Fix the Internet.

CINDY COHN

The idea behind this show is that we're trying to fix the internet. We're trying to make our digital lives better. EFF spends a lot of time warning about all the ways that things could go wrong and jumping into the fight when things do go wrong online, but what we'd like to do with this podcast, is to give ourselves a vision of what the world looks like if we start to get it right.

JASON KELLEY 

Our guest today is Deji Bryce Olukotun. In addition to being a sci fi novelist, he currently works at Sonos, after spending a few years at AccessNow – a digital rights organization that works to protect digital freedom and internet access all over the world.

We started the conversation by getting him to tell us a bit about his background in activism and policy.

DEJI BRYCE OLUKOTUN

My journey to AccessNow really began actually at PEN America, which is a free expression organization, where I helped develop some of their technology policy work with a great thinker named Larry Seams. And I got to work with, with writers all over the world who were wrestling with some of the issues of digital technologies and privacy. So that was kind of my step into AccessNow they actually provided us with a digital security training while I was there to help writers and, and activists better understand how we could protect ourselves, you know, from a free expression standpoint. AccessNow is really an inspiring place to work.

And what we focused on was advocacy in the global context. And we, we tried to develop, um, policy strategies, but be very informed by, um, what was happening in affected communities. So rather than try to tell people what to do, find out what they're working on and then develop campaigns to support their work. So we wanted to be a value add, essentially.

And the internet shutdown campaign was really free expression at scale. So these are critical moments in democracies, elections, protests and governments would shut down the internet to try to clamp down on free expression. And unfortunately it still continues today, but the activism around it is even better. So it's kind of a hopeful story in some senses.

CINDY COHN 

We love Access now. EFF partners with access now on lots of things. And it's been so great to see the Keep It On Coalition and the other work that Access Now does, you know, both broadly and narrowly really take the global human rights view in a way that is just completely complementary to the work we do at EFF we just, we are so happy to be part of a movement now. So what are you focussed on right now? 

DEJI BRYCE OLUKOTUN

Right now my focus is a little bit more broad and it's informed by a fellowship at the Center for Science and Imagination at, um, Arizona State. It's just a really wonderful futurist kind of think tank that tries to think about social issues and social impact as well. So moving beyond just science fiction for science fiction's sake, and trying to think how can we apply futurist thinking towards the social issues of today, and empower more people to share their voices and their perspectives.

CINDY COHN

That's great. I mean, it's very complementary to what we're trying to do here with this podcast, I think, and I know that one of the things you're thinking about now is competition and antitrust, and how we can think about those narratives in ways that are, are better suited towards actually making the kind of change we wanna make in the world. Can you talk a little bit about that?

DEJI BRYCE OLUKOTUN

Because of my work in my day job, uh, I work for a company called Sonos. We're an audio technology company. I learned a lot about competition and what does it mean for innovation in the US and around the world. We've been working with actually a great coalition of nonprofits and companies and different stakeholders. The type of model that EFF and AccessNow are known for - this kind of multi-stakeholder model to develop some bipartisan, moderate legislation. And there's some bills that are in Congress, which we are supportive of, but I think on the science fiction side of it, throughout this process and being able to engage with officials on this issue, first of all, it was sort of, you know, do we have a problem? That's part of it. So maybe I should lay that case out first, which is that we do have a lot of consolidation. We have four or five companies that have valuations that we've never seen before. But it's not so much the size of big tech companies, but actually the conduct, and I think that's important for people to understand is, while big companies do draw more scrutiny and they should, I think, have some accountability and have eyes on them because of their power, that's actually really not what's at stake here.

It's the behavior and, and the conduct. And that's the way competition law looks at it. There's some legislation that we think would go a long way to dealing with some of the harms that we've seen, which EFF has, has documented and a number of other non-profits have as well.

But I think on the science fiction side, asI've been doing that work and having the opportunity to engage with people involved in this conversation, including lawmakers, it struck me that, you know, we have a lot of futurist visions. And by that I mean different science fiction stories that imagine a different kind of future for us.

But on the antitrust side, we're a little bit lacking. We tend to tell one kind of story, and that story is the evil corporate villain, you know, who will do anything.  It's one dominant corporation maybe wrestling for technology. And the only way you can do anything is to take the whole system down. 

And to me, as someone who's, you know, been close to these conversations, that feels like a little bit of a failure on our part. It's good storytelling to have the evil corporation, but antitrust and the tools we've developed over the past, you know, 125, 150 years are actually very thoughtful. And they're designed for the system we live in. So, you know, the question that I've been asking is what can we do to paint, you know, a more positive portrait of that so you don't have to take the whole system down. But flipping the vision from the evil corporation, what would it look like to have a healthy market, um, or an open market. Still celebrate the things that groups like EFF support, human rights and so on. And I think that, um, right now we're missing that and it's a little bit of a challenge. 

CINDY COHN

So can we flip it? What would it look like? What would the story look like if we got it right? Because I do think you're onto something here. 

DEJI BRYCE OLUKOTUN

I'll say that I'm on the beginning of this journey here. So I was at an event a couple weeks ago called Anticipation in Arizona. And there were a lot of economists there. So I presented this idea to them to hear their feedback. I would say we're still figuring it out.

I can tell you what it looks like today, which would be that you want people who come up with the good ideas and, you know, that could have some, uh, support, whether it's a product or a service or something like that, has a chance to succeed and doesn't just get stamped out by firms that are gigantic and can just squash 'em because they want to. 

I'm not an economist. But I do like the, you know, the challenge here is, okay, we have a system we live in today. We actually have some tools we've developed, which are pretty good and they just haven't been updated for the digital age. So what can we do to help imagine and get to a better place?

And I experienced this first hand when talking with the decision makers who were looking at this legislation. And it struck me. So much of policy is speculative. You can design a really wonderful bill, and get, you know, good stakeholder input. But at a certain point, no one knows exactly what the consequences are gonna be. We have good hunches and, you know, the more input and voices you get attached to that legislation or whatever it is, the more likely it'll succeed. But there's a speculative moment. You know, you have to pass the bill and make it become a law. And then you have to kind of hope for the best. And that's the moment of imagination where, at least on this issue, I think we could use more work. 

CINDY COHN

Yeah, I think that that's really right. And I agree with you at this insight that part of the policy work we need to do is to give a vision of a different world. We, like you, have felt a lot that people –  and that includes the policy makers – are really stuck. And I think until we can free people's imaginations to envision a more competitive level playing field world, the more we can then start pointing them towards the kinds of policy solutions, whether that's reanimating antitrust, you know, knocking down the Computer Fraud and Abuse Act and Terms of Service Abuse and Section 12 and one of the DMCA, all of which are wielded regularly to try to block competitors or just mar you know, pure market power to try to squash people.

All of the levers that we talk about here about change, they don't get pulled unless people have a vision of the better world that they could get at the end of it.

DEJI BRYCE OLUKOTUN

I agree completely, and I think, you know, one interesting thing about science fiction is it, it opens up pretty broadly. So people give the example of Star Trek being a post scarcity world. There's a great book called Economic Science Fictions, which I relied on in developing my thinking, um, that pointed out in video games, which is a little bit of an understudied kind of speculative space where people aren't just imagining a world, they get to experience it in some way.

That post scarcity, you know, the sense that, you know, money's kind of obsolete and you're just dealing with other ways of creating things. Science fiction does look at that and their are interesting other economic models. And I think those are all valid and they're important for us to imagine a better future in that sense.

But the tools we have already are actually pretty good. And I think that's the, you know, the, the place where I'd like to see a little bit of emphasis. And, you know, one other kind of point that I wanted to make is that we all have the right to imagine our own future, and that's a very important empowering point.

CINDY COHN

I think that's so important and I think one of the things that we are trying to help People think about is, is not just one future, but multiple futures, right?

And again, technology isn't magic. It isn't gonna magically make us make the right choices, but it can set a ground floor that lets us make some of these good choices if we decide to.

JASON KELLEY 

Let’s take a quick moment to say thank you to our sponsor. “How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians. So a tip of the hat to them for their assistance.

I’ve been reading Deji’s first novel, Nigerians in Space, and I was struck by how  he speaks about that common futurist narrative, where we battle against a massive conglomerate run by an evil billionaire … and how that’s not necessarily a helpful way to imagine the future. In his work, Deji tries to step outside of that by imagining something totally different.

DEJI BRYCE OLUKOTUN

I wrote Nigerians in Space, I started it, um, now 14 years ago, which makes me feel a little bit old. But I wrote it while I was living in South Africa, there were a couple things happening.

One was, uh, being American abroad during the George W. Bush presidency, you weren't automatically popular. In fact, I was usually on the defensive side of conversations. Celebrate the values that I hold, you know, dear, and, um, but because of all the politics happening. So that was one thing. But then the other thing was observing from afar the rapid rise of, you know, Silicon Valley and, um, everything that was happening and. I grew up and my father studied chemistry, went on to do biotech. I grew up surrounded by a lot of, um, African and black scientists and thinkers. So it hit me that, um, I didn't see them represented in the stories that, um, I read and enjoyed or, you know, whether it's on screen or, um, And, uh, that I wanted to tell that story in some way.

So at the time there was a healthy conversation in, uh, throughout Africa around brain drain that some of the best talent had left Africa because there weren't opportunities trained abroad and then never came back for whatever reason. And, um, that was kind of the origin  of the story. 

JASON KELLEY

We read a Slate piece that you, that you, wrote about how you put together this kind of fictional universe where Nigeria had a space program, and then you were in Nigeria and you met a person who actually worked for their existing real life space program. Do you want to talk a little bit about what the kind of experience is? It's just a fascinating and surreal thing that seemed to have happened to you.

DEJI BRYCE OLUKOTUN

I was friends with someone who was trying to create a kind of tech hub in Nigeria, and he's the one who introduced me to this scientist. So that's how I was able to just kind of pop over there, while I was visiting, um, in Abuja. But it was a surreal experience. I met a really kind and fascinating scientist, Dr. Agbola, um, who had trained at NASA, just like the main character in. Um, and was given an opportunity to lead, uh, the space program or part of it in Nigeria. And he was really kind, showed me around, spoke frankly with me. 

Cut to, you know, a few years later. Just a couple weeks ago I was having lunch with a Nigerian attorney who worked for the Nigerian Space program and also worked in Canada and is now based in the US. Um, there are many Nigerian science fiction writers now, um, who have, uh, are telling great original stories, drawing from their context and their culture.

And that's actually one reason why I've pulled back a little bit from writing about Nigeria personally because I thought, well, I wanted to sort of create and open some doors and the doors have been opened. there was a hashtag called “When Aliens Land in Nigeria” or something like that.

And they told me it was inspired by my book. Not necessarily cuz they read the book, but they saw the title and it, it led to, you know, on Twitter this hashtag I'll take, I'll take what I can. But I feel like it's really broken open. There are other authors like Nnedi Okorofor for, um, who is a pioneer of Africa based science fiction, so I don't wanna overclaim, but it's a very healthy space right now and it's not just happening in Nigeria. You know, it's unlocked conversations around futurism all over the world, there's a lot happening right now. It's a very exciting time for science fiction storytelling, and speculative fiction storytelling.

CINDY COHN 

I don't know if you've thought about this a little bit, but one of the things that I think about in terms of speculative fiction and fiction and kind of,  civil liberties causes, uh, freedom of expression is that we're often challenged to try to actually capture a little bit more how hard and long some of these fights are. Right? The kind of normal narrative arc isn't really how it works for those of us who do this kind of work. And, um, have you thought a little bit about how to capture that? Because I think I, I worry that unless. Envisioning a future where, you know, uh, we'll put it this way, I worry that if we're only envisioning futures where that neat narrative arc by the, you know, third commercial, everything is worked up and then all you have is the day Numa. Um, that that isn't, Serving us in terms of inspiring people to get involved in the, in the, you know, kind of the more messy reality of these long battles for freedom of expression and other rights.

DEJI BRYCE OLUKOTUN

You raise a really interesting point, Cindy, that, you know, my personal experience of working on some of these issues is there'll be starts and stops. There's the initial excitement and momentum where folks are gathering maybe a small victory and then almost a reaction from the, the forces that, you know trying to change and it becomes a long, a much longer experience. 

So I think you're right. It's a great challenge. I can say that, you know, the new storytelling kind of unlocked by shows like The Wire and Breaking Bad, you know, the multi-season, visually, at least in, in television, you know, they're now allowing for more nuance and to be able to tell a more complex story like that. I think novels have always had that possibility. 

I have a four month baby at home.The one thing I could do was, was watch tv. It was impossible to, you know, read a book at the same time as, you know, this kind of squirming baby trying to bottle feed and stuff like that. And I've been watching this series Andor and there are a couple of kind of monologues in there, within the Star Wars Disney Universe. And I think they're really poignant, talking about the long battle, what it does to you when you're just fighting all the time, that you have to kind of adapt some of the mentality of the person you may be fighting against.

You know, Star Wars universe is much more binary and it's good and evil and that's how it's set up. But I was actually quite moved by that and I thought it did capture that feeling as an activist that, um, when the, when the victories aren't so clear and simple, we talked about the Keep It On Campaign at Access now that I helped start. And it's a really wonderful campaign and I look at the people who are still involved today. Their tactics are more sophisticated. The advocacy is better. They've had clear victories, legislative and policy victories, and yet  the internet continues to be shut down. So I think you raise a really important point, that the sort of grit and desire to stay with these, um, efforts could use more treatment in fiction and storytelling. 

CINDY COHN 

Yeah, I mean, I don't think, I imagine a future in which, you know, we, we don't need access now and we don't need eff. Because everything is magically perfect. I don't know. I mean, sure, that's fine. I could go run my blues bar somewhere. But I think that for me anyway, in thinking about this, like the better future still has the need for people to do these, uh, this kind of work, these kinds of campaigns.

Instead, I think the power differential will be better in our different world. Civil society will have a baked in place at the table and the resources necessary to bring the voice of the community or individuals impacted into the conversation in a way that we do today and we do pretty well considering how under-resourced we are but will actually be structurally built in to more systems. 

DEJI BRYCE OLUKOTUN

No, I'm in complete agreement and you know, one reason why I was excited. Cindy to go to, um, to work for Sonos, where I work now, is that I had collaborated with Lush Cosmetics. They make, uh, they're kind of famous for their bath bombs, um, you know, bars of soap you drop in and fizz up and we collaborated at Access now with Lush and I, I got to see their commitment to advocacy and so I felt, well, I'd seen that the campaign we were running got better because of our collaboration. They lended their resources to help us tell the story better. They taught us new ways of marketing and thinking about reaching audiences. You know, that's one reason why I wanted to go to Sonos is to continue working in that way.

But I think one thing that I've also learned being on, on the corporate side is the value of, of many stakeholders crafting something together and that that will never go away. And the best, laws and policies I really do believe benefit from that input. so I'm very committed to that. And I think there are great groups like EFF and Access now and events where people can come together. I do, you know, have concern about capture of some of those spaces that what once felt like multi-stakeholder conversations are actually all funded and supported by certain voices. I'm also concerned about, you know, the fundamentals of our democracy, what's happening, uh, for voting in elections. And climate change is a real thing that I'm grateful I've been able to push forward at Sonos. You know, we launched a climate plan like other companies, um, which is a lot harder than it sounds to actually, uh, put some real commitments behind it and not just, um, say you're doing something and then not follow up.

But I'm really hopeful at the same time that some of these very large challenges, um, we know what they are now, where people have drawn lines in the sand, they've told us, you know, we know that climate is an existential thing. We know that having an election that we all agree to, uh, you know, the results is an existential thing for our democracy and all the work that needs to happen.

And in some ways I'm very hopeful about that cuz it shows us where we should be engaging. And the people who are engaging are very well organized and smart about it.

CINDY COHN 

That's great. Deji, thank you so much for coming on and talking with us. I really appreciate your thoughtfulness and, um, all the multiplicity of perspectives you bring to some of these, these fights that we're, we're, we've all been in for a long time.

DEJI BRYCE OLUKOTUN

Thank you, Cindy and Jason. I'm so inspired by the work of EFF and I appreciate being able to have this conversation with you today.

JASON KELLEY
That was a really fun conversation. And now I have a huge list of books that I need to read. But for that moment, what stood out to you as kind of one of the things you'll be thinking about now that we've had this conversation and telling people that kind of clicked for you in talking to Deji?

CINDY COHN

I think the one thing I will take away is that we need to interrogate who's giving us our visions of the future and recognize what's going on underneath those statements of inevitability.

JASON KELLEY

Yeah.I was really struck by that just realization that you take any of the kind of tech that is seemingly inevitable at this moment, whether it's the metaverse, uh, brain implants, you know, who, who knows what he mentioned, um, and other things. And you realize that there are people who. Who are saying it's inevitable, who stand to make a lot of profit from it, regardless of kind of how effective and interesting and useful and interoperable and all these other things. It is. Um, and what Daisy said, uh, specifically was we have the right to imagine our own futures. And I think that's, that's the, that's the point that I'm going to remember is just that, that if anyone is trying to stop you from doing that, you have to really think about why. 

JASON KELLEY

Well that’s it for this episode of How to Fix the Internet.

Thank you so much for listening. If you want to get in touch about the show, you can write to us at podcast@eff.org or check out the EFF website to become a member or donate or pick up some merch. It’s been said that EFF is a clothing company with a law firm on the side because people love the hoodies. 

This podcast is licensed Creative Commons Attribution 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators. You can find their names and links to their music in our episode notes, or on our website at eff.org/podcast. 

Our theme music is by Nat Keefe of BeatMower with Reed Mathis

How to Fix the Internet is supported by the Alfred P. Sloan Foundation's program in public understanding of science and technology. 

Thank you so much for listening and for supporting digital rights. 

We’ll see you next week with another episode.

I’m Jason Kelley…

CINDY COHN

And I’m Cindy Cohn.

CREATIVE COMMONS MUSIC CREDITS

This podcast is licensed Creative Commons Attribution 4.0 International, and includes the following music licensed Creative Commons Attribution 3.0 Unported by its creators:

Drops of H2O (The Filtered Water Treatment ) by J.Lang featuring Airtone

Chrome Cactus by Martijn DeBoer 

Smokey Eyes by Stefan Kartenberg featuring KidJazz

Additional beds and alternate theme remixes by Gaëtan Harris

The patent examination process is rife with problems. Too often, patent law supports applicants seeking unwarranted monopolies—not the public interest. That’s why we get things like Amazon’s patent on white-background photography. This is especially true when it comes to software and so-called “business methods,” a catchall term for patents that are often granted for trivial innovations on well-known concepts, like financial hedging. 

Fees from patent applicants pay about 85 percent of the budget of the U.S. Patent and Trademark Office, and the office very much serves those “customers” who are seeking patents—not the public. 

In sum, there’s a very long way to go before the patent examination process becomes fair to the public. However, there are a few ways the process could be changed that we believe would deliver outsized results. That’s why when the U.S. Patent and Trademark Office (USPTO) asked for public feedback on how to improve the examination process, we were glad for the opportunity to weigh in with our comments. 

Don’t Penalize Submissions Of Technology By Third Parties

The America Invents Act, passed in 2012, brought important changes to the patent system, including a review process on granted patents called inter partes review, or IPR. While the IPR process isn’t perfect, and needs to be strengthened, it’s been a big success in getting some of the worst patents out of the system, more cheaply and effectively than a court case. 

The IPR system works because it lets other people submit evidence of “prior art,” a legal term for technology that pre-exists a particular patent. This system of allowing third parties to submit prior art is how EFF was able to knock out the infamous “podcasting patent” that was being used to hold up podcasters. 

But why isn’t the patent office listening to outside experts before granting unwarranted patents? The truth is, outside parties are allowed to submit prior art. But use of this process is very rare. A recent study looked at 10,000 issued patents and found only 14 that included outside prior art submissions. The same study found that out of a body of 1,600 third-party submissions that were accepted by USPTO, only 12.96% of those references were actually used by the examiners. 

The Patent Office should welcome valuable information submitted by independent experts, who aren’t out to gain a patent. But independent submissions like this can backfire on the persons who submit them. That’s because overworked patent examiners often ignore the submitted prior art, but it remains in the public record. When there’s a dispute later on, such as in an IPR, the examiner is presumed to have considered all those submitted references. Thus, submitting prior art can raise the burden of invalidating a bad patent later on. Often, it’s smart strategy for a potential patent defendant to wait and use their prior art in litigation, or in an IPR. 

This should be an easy fix, at least for the IPR process, which is under USPTO control. Examiners should not be presumed to have looked at prior art unless they actually cite the reference and rely on it during the examination process. 

Don’t Allow Patent Claims to be Changed Mid-Examination Without Good Reason

One USPTO tradition that would be shocking to outsiders is that it’s allowed to change the nature of patent claims midway through the process, even if they change the claims to describe something that wasn’t supported in their original disclosure. The manual that governs patent prosecution states that an applicant “should show support in the original disclosure”—but they don’t have to. Often, they don’t. While ultimately the examiner should only allow claims that are described by the disclosure, letting the applicant skip this step means more unsupported claims that fall through the cracks during the examination process.

Applicants shouldn’t be allowed to change the rules of the game midway through—especially when they’re the ones who made the original invention disclosure. If the claims are changed, the applicant should have to explain how they are supported in the original disclosure. If they can’t, they shouldn’t be allowed to make the changes. 

In many ways, there’s a fundamental one-sidedness to the patent application process. What the USPTO calls a “final rejection” of an application is far from final. In fact, there’s no limit to the number of times applicants can return and insist that they be allowed to change their application, and have it considered again. 

Insisting that amended or added claims have support in the original application won’t fix this one-sidedness, but it could prevent some of the most egregious outcomes. 

Earlier this week, the U.S. Patent and Trademark Office extended the comment period for this matter. The full list of questions to be considered in this request can be viewed on the Federal Register, and comments can be submitted at Regulations.gov until Feb. 28, 2023. 

• Read EFF’s Full Comments

The Supreme Court next week will hear two cases — Gonzalez v. Google on Tuesday, Feb. 21, and Twitter v. Taamneh on Wednesday, Feb. 22 — that could dramatically affect users’ speech rights online.  

Nearly everyone who speaks online relies on Section 230, a 1996 law that promotes free speech online. Because users rely on online intermediaries as vehicles for their speech, they can communicate to large audiences without needing financial resources or technical know-how to distribute their own speech. Section 230 plays a critical role in enabling online by speech by generally ensuring that those intermediaries are not legally responsible for what is said by others.  

Section 230’s reach is broad: It protects users as well as small blogs and websites, giants like Twitter and Google, and any other service that provides a forum for others to express themselves online. Courts have repeatedly ruled that Section 230 bars lawsuits against users and services for sharing or hosting content created by others, whether by forwarding email, hosting online reviews, or reposting photos or videos that others find objectionable. Section 230 also protects the curation of online speech, giving intermediaries the legal breathing room to decide what type of user expression they will host and to also take steps to moderate content as they see fit.  

But if the plaintiffs in these cases convince the Court to narrow the legal interpretation of Section 230 and increase platforms’ legal exposure for generally knowing harmful material is present on their services, the significant protections that Congress envisioned in enacting this law would be drastically eroded. Many online intermediaries would intensively filter and censor user speech, others may simply not host user content at all, and new online forums may not even get off the ground. 

Here's some useful background on these extremely important cases: 

Gonzalez v. Google 

• EFF’s amicus brief, joined by the American Library Association, the Association of Research Libraries, the Freedom to Read Foundation, and the Internet Archive
  
• EFF's blog post explaining our brief: EFF Tells Supreme Court: User Speech Must Be Protected
  
• Amicus brief of Sen. Ron Wyden and former Rep. Christopher Cox, co-authors of Section 230
  
• Background on Gonzalez v. Google 
  

Twitter v. Taamneh 

• Amicus brief of EFF, Center for Democracy & Technology, American Civil Liberties Union, American Civil Liberties Union Foundation of Northern California, Knight First Amendment Institute at Columbia University, R Street Institute, and Reporters Committee for Freedom of the Press
  
• EFF's blog post explaining our brief: The Supreme Court Must Protect Internet Users’ Rights to Access Controversial Information Online
• Background on Twitter v. Taamneh
  

 Section 230 

• EFF’s fuller explanation of Section 230’s importance 
• A one-pager on Section 230
  
• A detailed refutation of arguments against Section 230
  
• A review of key legal precedents regarding Section 230
  
• EFF's blog post: Don’t Blame Section 230 for Big Tech’s Failures. Blame Big Tech. 
  
• EFF’s whitepaper on the importance of Section 230, as well as the need to pivot to robust rules around online competition, data privacy, and interoperability

What started with a simple public records request became a journey into the absurd depths of Mexican bureaucracy. But we emerged victorious, and learned a lot about how a city experimented with a dangerous surveillance tool.

Filing public records requests for government information is a vital tool that EFF uses to shed light on law enforcement use of surveillance technologies. When a government agency hides crucial information about their surveillance policies and practices, it harms the democratic rights of the people whose data is collected and exploited.

In the United States, we rely on the Freedom of Information Act and state-level open government laws to obtain records from government agencies, but many other countries also have similar public records laws—including Mexico.

Mexican and U.S. authorities frequently collaborate and share resources, and surveillance techniques deployed by law enforcement on one side of the border often flow across to the other. In 2021, we investigated this flow of technology starting with a predictive policing program that we learned that police had launched in General Escobedo, a city in the border state of Nuevo Leon.

Predicción Delictiva–Predictive Policing, Mexican-style

Predictive policing refers to using algorithms and sometimes artificial intelligence to predict where crimes may occur or to identify who might commit them. These systems ingest a variety of data sources—such as surveillance data, crime reports, emergency calls, criminal records and social media—depending on which vendor is providing the technology.

This technology is flawed pseudo-science at best: the public safety equivalent of snake oil. Because the technology feeds off a biased and flawed data loop, it can result in pushing police toward communities that already are over-policed, such as communities of color, unhoused individuals, and immigrants.

We knew that General Escobedo, a municipality on the outskirts of Monterrey, had a predictive policing project because a government official publicly spoke about the program at a September 2018 meeting, according to records we found on the General Escobedo administration's website. According to the minutes of the meeting:

"En esa búsqueda de innovar para mejorar hemos incorporado una nueva herramienta a nuestro modelo policial consolidado, apreciado en el país y en el extranjero, predicción delictiva, PredPol. Que ha sido posible desarrollar porque somos el único municipio que tiene los registros estadísticos necesarios, sin esta información es imposible realizarlo, a partir de este próximo 12 de octubre con esta herramienta se nos permitirá predecir con altas probabilidades de acierto, donde se cometerá el próximo delito y por lo tanto evitarlo."

English translation: 

"In this search to innovate, to improve, we have incorporated a new tool to our consolidated police model, which is valued in the country and abroad, crime prediction, PredPol. This  has been possible to develop because we are the only municipality that has the necessary statistical records, and without this information it is impossible to do so, from this coming October 12 this tool will allow us to predict with high probability of accuracy where the next crime will be committed and therefore avoid it."

While the project was promoted as a technological miracle for public safety, we were determined to learn how it worked, how much it cost, who was providing the technology, and what problems it might cause. And to get that information, we needed to request records regarding the project’s development. 

FOIA in Mexico

Mexico maintains a National Transparency Platform, through which people—including people who don't live in Mexico—can file public records requests. In October 2021, we submitted such a request to learn about how General Escobedo’s predictive policing system was implemented.

Before we delve into the absurdity, we need to be fair: The National Transparency Platform is a very useful tool. As an interface, it was easy to use and it efficiently facilitated a line of communication between the EFF team and the government officials responsible for ensuring information is released.

Filing the information request was probably the only simple part of this process. Then the problems began. Even if the software system is slick, transparency depends on the people who respond on the other end and how enthusiastic they are to fulfill your records request.

The first answer we received from officials in Escobedo was disheartening: Inexistencia de Información. The records didn't exist—or so they claimed.

We didn't believe this for a minute: How could a program receive an October 12, 2018 launch date without a long paper trail leading up to it? Like in many countries, the laws and rules at the national and state levels in Mexico require government-related institutions or those receiving public funds to keep records of any undertaken activities within their powers, including contracts and agreements, budget expenditure, approved programs, funding, and working plans.

But the flat denial of records wasn't even the most absurd part.

To try to prove they had done due diligence and met the requirements of Mexican public record laws, local officials sent us a photo essay of their "exhaustive search" ("búsqueda exhaustiva") for the records. For example: 

Here they are outside the Secretaría de Seguridad Ciudadana building, where the records might be kept.

And now they're outside the door of the Dirección de Análisis e Investigación Policial (the directorate for police research and analysis).

Here they are searching for records on a computer.

And here they are looking in the drawer where they keep their mugs and coffee.

We had to look twice at that image: Were they really looking in the snack drawer for our documents? 

We went carefully through the photos, and we noticed that they did include screengrabs of documents that would've been responsive to our request: the first page of a slide presentation from the project kick-off and the cover of a user's manual relating to the predictive policing project, named Sistema de Predicción de Delitos (SPRED).

It made no sense: they showed us screengrabs of documents and then claimed that they didn't exist. Were they gaslighting us? 

So We Appealed

We appealed to what was then called  Nuevo León's Comisión de Transparencia y Acceso a la Información (COTAI - in English, the Commission for Transparency and Access to Information). Recently, it was renamed Instituto Estatal de Transparencia, Acceso a la Información y Protección de Datos Personales (INFONL- in English, the State Institute for Transparency, Access to Information, and Data Protection). This is the state's agency charged with ensuring access to information and adjudicating such appeals.

COTAI held two hearings on our request via Zoom. Both hearings were closed to the public, and only the person whose name was on the original request was allowed to attend on behalf of EFF. 

No representatives from General Escobedo bothered to attend the first hearing, which frustrated both EFF and COTAI. When they attended the second hearing, municipal staff laid out their position: The SPRED  program belonged to the previous administration and the current one decided to discontinue the project. Therefore, they did not have further information about the program, they claimed; they also claimed that the slide presentation and manual found in the search were only drafts, and therefore did not need to be released under law.

We insisted on getting access, and asked for a document showing that the project had been dropped.

By General and State law (art. 18 e 19) , state agents must document any act deriving from their powers or functions. As a result, the law presumes that such information exists, and, if not, the Transparency Commission may order state agents to produce the respective document (art. 43 (III), General law; art. 57 (III), State law). So if the municipal administration decides to discontinue a project described in a government action plan with public funds assigned, there must be documentation of that decision. 

We explained our reasoning to COTAI, which agreed with us and ordered the city of General Escobedo to conduct another search for any information they had about the project.

What We Learned

Following our successful appeal, General Escobedo finally provided us with documents showing that the project was a collaboration between the city and the Universidad Autónoma de Nuevo León (Autonomous University of Nuevo León). The documents included the SPRED kick-off presentation, agreements between Escobedo and the university, and a slew of invoices and payments. 

According to the presentation, the goal of the project was "to develop a mathematical model for crime prediction, the management of reported crimes and the visualization on maps of historical data and predictions for the municipality of General Escobedo, Nuevo León." The presentation also included a map showing the flow of data, including crime reports and historical crime data. 

According to the presentation, Escobedo's C5 center (Centro de Coordinación Integral, de Control, Comando, Comunicaciones y Cómputo del Estado)—a type of high-tech public safety facility—would provide data from emergency calls. Meanwhile, the city's public safety agencies would provide data from police patrols. The administrative department would further collect feedback from public safety personnel.  In addition, the system would be basing its models on five years worth of historical crime data.

What the presentation did not cover is any of the risks or pitfalls of this kind of model, nor did it include any steps officials would take to mitigate the potential harms. For example, if the algorithm is trained using five years of crime data—but that crime data was based on biased policing practices—the software could be expected to exacerbate that bias. Training an algorithm with emergency calls can also create problems in terms of equity, since that data can also be biased: Some communities may be less likely to call police when they experience or witness crimes, due to past negative interactions with law enforcement or the fear that police may be corrupt.

The records did show that the program represented a huge waste of public money. According to the agreement, Escobedo committed to pay up $5,220,000 (pesos, and including taxes) to the university for the project, and the records include a number of invoices and receipts showing at least $4,000,000 (pesos) checks were issued.

However, Escobedo refused to provide the SPRED manual to us, claiming that it could not be released due to its status as copyrighted work. We've seen similar problems in the U.S., with police agencies exploiting copyright exceptions to thwart public access to records. There was also a technical annex to the agreement between Escobedo and the university that we wanted to see; Escobedo provided both the manual and the technical annex to COTAI for review, but we are still awaiting its release.

In Conclusion

On one hand, we were pleased that Mexico's access-to-information law allowed us to (eventually) review relevant information about the program. Despite the hurdles we faced, Mexican public records law does have important safeguards that enabled us to effectively appeal the original denial. And COTAI proved its value by exerting its authority in favor of transparency, though it also decided not to disclose some of the documents that it received and reviewed. We were further heartened by the fact that Mexico allowed us—as non-Mexico residents—to access public information.

On the other hand, we are concerned with how this government entity developed a surveillance program and then delayed for many months any public accountability and related spending. This unfortunately reflects a trend we see across Mexico and around the world.

We owe a debt of gratitude to Article 19 México y Centroamérica, for sharing their prior experience with Mexico's transparency laws, and helping us navigate the byzantine appeals process. 

EFF proudly joins ACLU California Action and If/When/How to co-sponsor new California legislation to protect people seeking abortion and gender-affirming care from dragnet-style digital surveillance. A coalition of more than 25 reproductive justice, civil liberties, and privacy groups are supporting the bill at introduction. 

Support A.B. 793

Stop All Digital Dragnet Surveillance of Vulnerable People

Assemblymember Mia Bonta (D-Oakland) on Monday introduced AB 793, a bill to prevent unconstitutional searches of people's data. 

“With states across the country passing anti-abortion and anti-trans legislation, it’s vital that California shore up our protections against digital tracking of vulnerable people seeking healthcare,” Bonta said. “This legislation will put a stop to unconstitutional ‘reverse warrants’ – preserving our digital privacy and protecting Californians’ right to live life on our own terms.” 

AB 793 targets a type of dragnet surveillance that can compel tech companies to search their records and reveal the identities of all people who have driven down a certain street or looked up a particular keyword online. These demands, known as “reverse demands”, “geofence warrants,” or “keyword warrants,” enable local law enforcement in states across the country to request the names and identities of all people whose digital data shows they’ve spent time near a California abortion clinic or searched for information about gender-affirming care online. 

Between 2018 and 2020, Google alone received more than 5,700 reverse demands from states that now have anti-abortion and anti-LGBTQ legislation on the books. As a worldwide leader in technology and innovation, California is uniquely positioned to divest from digital surveillance that would target people for having an abortion or seeking reproductive and gender-affirming care. 

With the introduction of AB 793, California joins the vanguard of states that have taken action to protect people from reverse warrants, including New York, Massachusetts, and Missouri. The California Assembly will hear the bill sometime in March. 

You can read more about AB 793 on Bonta’s website, and Californians can act now to urge their lawmakers to support the bill.

Support A.B. 793

Stop All Digital Dragnet Surveillance of Vulnerable People

In January 2020, former New York City Mayor Bill de Blasio announced New York City’s Internet Master Plan, setting a path to deliver broadband for low-income New Yorkers by investing in public fiber infrastructure. The plan was a clear response to the gap created from systemic digital redlining (an industry practice EFF has called for governments to ban) that every American city deals with today. Shortly after the announcement by de Blasio, the COVID-19 pandemic hit and the made the need for public fiber into low-income areas greater than ever before.

In response, former union workers at Spectrum opted to build their own broadband cooperative called People’s Choice Communications, to deliver free high-speed access. This was unequivocally a good thing. The de Blasio Administration itself was even in the process of contracting with the worker-owned cooperative to build new networks. But since the election of Mayor Eric Adams, this critical progress has not only come to a halt, it is also now actively being undermined, to the benefit of large cable corporations. Instead of pursuing long term solutions to low-income access, as outlined by the Internet Master Plan, Mayor Adams has abandoned that plan. Now, the Adams administration is pushing an extraordinarily wasteful proposal dubbed “Big Apple Connect,” that literally just hands money over to cable companies.

Mayor Adam’s New Big Apple Connect Program is Akin to Lighting Tax Money on Fire

Let's be crystal clear: Going from a plan to invest millions into building public infrastructure to a plan to subsidize cable companies is a gigantic waste. Building multi-generational public infrastructure that can eventually deliver free access is the only means of achieving long-term sustainable support. Giving money to cable companies to pay their inflated bills will build nothing, and it won't deliver 21st century infrastructure to those most denied it. It simply pads the profits of companies that have long-neglected these communities and failed to improve access—even when granted money to do so.

The original NYC proposal captures exactly what needs to be done to deliver permanent solutions. It would have created infrastructure that can lead to the creation of more local solutions like the People’s Choice Communications. NYC’s population density makes it attractive to small, local providers because there is such high demand for broadband that even small networks can find customers. Accessible fiber that is provisioned on an open and affordable basis dramatically lowers the barrier to entering the broadband market. This would both create competition and drive down prices for everyone, not just low-income people, as new entrants enter the market delivering gigabit-level connectivity. 

You Have to Invest in the Future and Not Subsidize the Past

As if all of that wasn't aggravating enough, now we know that the Adams administration is actively dismantling equipment that People's Choice Cooperative installed in public housing. This equipment offers free unsubsidized broadband access—sometimes at speeds greater than legacy cable connections. Why? To make space for expensive, subsidized cable. No government entity should be taking access away from people. But the existence of a free, unsubsidized connection would not only embarrassingly raise questions about the Big Apple Connect program’s entire premise, but also threaten the cable monopoly of high prices for inferior speeds across the country.

Fiber infrastructure requires a one-time installation cost so that a network can be useful for broadband purposes for decades to come. It is more efficient than legacy infrastructure and is set on a trajectory to deliver faster speeds at lower prices. This is why the Biden Administration made clear in its own infrastructure program that “only end to end fiber” can deliver future proof access. Every dollar spent on building out end-to end fiber will not need to be spent again to enable connectivity in the future. By contrast, every dollar spent on subsidizing legacy, obsolete infrastructure is a waste. This is why slower networks will cost more in the long term, and why public investments like Big Apple Connect are entirely the wrong idea. Mayor Adams should stop removing local choices for broadband access such as People’s Choice Communications, abandon the Big Apple Connect boondoggle, and re-embrace the long-term vision set out with the Internet Master Plan.