The Kafkaesque battle of Soulseek and PayPal

Does your business follow copyright law to the best of its ability? Not good enough. At least that was the case for one long-standing peer-to-peer network, which had its payment processing shut down after more than 14 years of being a loyal PayPal customer.

A version of this article was originally published on EFF Deeplinks.

Does your business follow copyright law to the best of its ability? Not good enough. At least that was the case for one long-standing peer-to-peer network, which had its payment processing shut down after more than 14 years of being a loyal PayPal customer.

Soulseek, a peer-to-peer file-sharing network, faced a Kafkaesque battle with PayPal. When its donors were cut off from making payments to Soulseek, the network struggled to figure out what it had done wrong—or even get a response from PayPal to its questions. Thankfully, Soulseek reached out to EFF. We got in touch with Paypal and helped convince them to reinstate the network.

PayPal did the right thing by restoring Soulseek’s account, and we commend them for that. But we’re also concerned: it’s not scalable for EFF to intervene whenever a law-abiding website is shut off from a payment provider (as we have done with an online bookseller and a short story archive). In addition, we think of Soulseek’s situation as indicative of a larger trend of Web censorship, as websites that haven’t violated any laws are choked of funds—a situation that was disastrous for WikiLeaks and is currently tightening a noose around the electronic neck ofBackpage.com.

Soulseek describes itself as “an ad-free, spyware free, just plain free file sharing network for Windows, Mac and Linux.” The passion project of a husband and wife team, Soulseek itself doesn’t host files for users. Instead, users can join the network, connect with one another, and share files directly.

The platform is donation-driven. Without ads or fees, the service relies on the good will of the community to contribute back to keeping Soulseek going. While hardly profitable, this has been enough to keep the servers running and the software updated for many years.

And that was all fine, until the summer of 2015.

Not Granting Pre-approval at This Time

Instead, Roz Arbel, who runs the site with her husband Nir, heard from users who were unable to send in donations using MasterCard. I spoke with Roz in November and she briefed me on what happened. Roz called PayPal, and spoke to a general support agent. Through that agent, Roz learned that PayPal had sent Soulseek a questionnaire because, as Roz reported hearing from the PayPal representative, MasterCard was coming down on PayPal regarding filesharing networks.

Roz hadn’t seen any questionnaire from PayPal, so they sent a new one over. Roz was assured that service would be reinstated within 48 hours after the questionnaire was completed and returned.

Roz and Nir answered the questions promptly (see below for a list of the questions) and sent the questionnaire back. Most of the questions related to copyright infringement and whether the site was taking the necessary precautions to stay on the right side of the law. Soulseek has existed for as long as it has in large part because it has complied with the Digital Millennium Copyright Act’s safe harbor provisions. For example, Soulseek has a DMCA agent and a policy of blocking user accounts that get repeated copyright infringement notifications.

A week went by with no word from PayPal. It was now October, and Soulseek had been limping along without donations from MasterCard users. Roz again contacted PayPal. This time she heard from a representative of the company that the questionnaire had been received, but nobody inside PayPal had looked at it. Roz was assured that it would be escalated and dealt with immediately.

Within an hour, Soulseek received an email from PayPal stating that the account was being permanently limited. Funds could be withdrawn, but Soulseek would not be able to receive donations through PayPal. No reasons were provided for this decision. There wasn’t even a phone number.

As Roz and Nir Arbel explained in a blog post,

We have asked repeatedly for an explanation of this behavior, but we have been stonewalled at every turn, and have received only form emails telling us that we needed to be “pre-approved” for an account. When we asked what we need to do to be pre-approved, they emailed back and said that they are “not granting pre-approval at this time.”

After this, Roz reached out to EFF. We were able to connect with PayPal and discuss our concerns about the situation. We were happy that PayPal was willing to reverse its decision.

A Little Bit of SOPA

Payment networks blacklisting those accused of copyright infringement without due process is not a new idea. In fact, we saw something remarkably similar in SOPA, the notorious Internet blacklist bill introduced in 2011:

[A] payment network provider shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after delivery of a notification under paragraph (4), that are designed to prevent, prohibit, or suspend its service from completing payment transactions involving customers located within the United States and the Internet site, or portion thereof, that is specified in the notification under paragraph (4). (text)

One of the most troublesome aspects of SOPA was that it did not require a neutral magistrate to consider the merits of a case and then rule on whether a site was actually engaged in copyright infringement. Instead, SOPA empowered payment providers to start shutting down websites as soon as they received written notification from a copyright holder.

This was a bogus idea in 2011, and was defeated in the single most powerful Internet protest to date. So Congress knows that the Internet community won’t stomach this type of censorship, and hasn’t dared to move a similar bill since.

Instead we’re seeing this sort of thing: quiet pressure from content holders aimed at putting pieces of SOPA into place without actually passing a bill.

These kinds of actions come with real costs. As Roz said in a phone interview, “It’s drastically reduced the number of donations we receive. It’s free for our users but it’s not free for us…we’re not doing anything wrong. We’re totally above board, and we’ve always tried to be.”

Free Speech On the Line

While the First Amendment imposes strict limitations on how the government can squelch online speech, corporations have more leeway. The argument, of course, is that consumers have choices about the companies they patronize, and companies also have certain First Amendment rights to choose what sorts of customers they want to allow.

When it comes to payment providers, that’s not exactly true.

Payment platforms are currently extremely centralized, creating what in practice is a duopoly. MasterCard and Visa are behemoth payment service providers, able to dictate through their internal policies what types of speech will and won’t be acceptable online. Other payment providers, including smaller entities like PayPal, Stripe, and many of the Bitcoin payment service providers, are bound by their agreements to Visa and MasterCard.

Until another payment alternative gains widespread popularity in processing online payments, websites are beholden to the terms set up by MasterCard and Visa. So the idea of consumer choice is entirely false.

Threats to free expression online can come in many forms, but shutting down or limiting a law-abiding website is censorship. While the situation with Soulseek turned out well in the end, we’re concerned about the many websites we haven’t heard from that may be facing similar problems. It’s time for the payment providers to start erring on the side of supporting legal speech and let courts—not arbitrary corporate policies—decide what content should be censored.

 

Questionnaire from PayPal (provided by Roz Arbel)

  1. Business Overview. Please provide a general overview of your business, identifying all related website URLs or apps, describing the services you offer and how revenue is earned, and indicating how you use or would like to use PayPal’s services. (The terms “you” and “your” refer to your business in the remainder of this questionnaire.)
  2. Typical Usage. Please describe the kinds of files that are most often stored or transferred using your services (indicating, for example, typical file types, sizes, content and/or other relevant attributes) and, to the extent of your knowledge, the typical purposes that your customers have for using your services.
  3. Incentives for Uploaders. Do you offer rewards, cash payments or other incentives to some or all users who upload files? If so, please describe your related practices, including the criteria used to determine the nature and amount of incentives that users are entitled to receive.
  4. Membership Tiers and Benefits. Please describe any membership tiers, subscription plans or service levels that you offer (e.g., “free,” “premium,” etc.), indicating for each any payments required and the main benefits users receive. Are paying users entitled to enhanced benefits related to downloading or otherwise accessing files uploaded by other users, such as faster access speeds, higher allowances for total amount of data accessed, or the reduction/elimination of wait times, captchas or advertising? If so, please describe the related terms.
  5. Forum Codes. Do you offer “forum codes,” “URL codes,” “HTML codes” or other features that facilitate the incorporation of links to uploaded files on third-party websites? If so, please describe such features.
  6. Link Checker. Do you offer users a link checker or other functionality that helps users determine whether links to uploaded files have been disabled. If so, please describe such functionality.
  7. File Deletion. Please describe any practices you employ related to the expiration, purging or other automated deletion of uploaded files. Is the timing of a file’s deletion influenced by the frequency with which it is downloaded or otherwise accessed? If so, please explain.
  8. Information Collection. Do you collect information about the uploaders of files? If so, please describe your related practices, including whether you collect any of the following: name, postal address, email address and IP address.
  9. Repeat Infringement. Please describe any practices you employ to prevent users of your system from uploading copyright infringing files on multiple occasions. Please include information about any technological methods you use to identify repeat infringers, such as methods involving the IP addresses of computers used to upload files. If a policy or other information related to repeat infringement is available on your website, please provide a link.
  10. Copyright Infringement Reports. Please describe your practices related to soliciting, receiving and responding to reports from third parties about copyright-infringing files accessible through your service. If a policy, reporting instructions or other information related to such practices (e.g., a DMCA policy) is available on your website, please provide a link.
  11. Illegal File Reports. Please describe your practices related to soliciting, receiving and responding to reports from third parties about illegal files accessible through your service (other than reports of copyright infringement covered by Item 10 above). If a policy, reporting instructions or other information related to such practices is available on your website, please provide a link.
  12. Monitoring. Do you employ any practices involving the monitoring of uploaded files to identify and remove copyright infringing files or other illegal files? If so, please describe those practices, including any manual review or automated scanning of files performed by your staff or by any third-party firms. Please indicate the names and website URLs of any such third-party firms.
  13. Law Enforcement Cooperation. Please describe your practices with respect to responding to requests or orders from law enforcement, courts or other government bodies, such as information requests, discovery orders, search warrants and subpoenas.
  14. Child Exploitation. Please describe any actions you take if you become aware that a file uploaded to your system involves child exploitation or any sexually-oriented depiction of a minor.
  15. Other Controls. If you employ any processes or controls not otherwise covered in your responses to this questionnaire that are aimed at preventing or otherwise addressing any actual or potential use of your system for the storage or transfer of illegal files or for other illegal activities, please describe them.
  16. Point of Contact. Please identify and provide contact information (including phone number and email address) for a person who will serve as PayPal’s point of contact with respect to our review of your business and any future inquiries or concerns we may have.

How we crowd-sourced transcripts of the entire Manning court martial

Originally published on the Freedom of the Press Foundation site.

On May 9, 2013, we made a bold claim on this website. We promised to crowd-fund enough money to hire independent court reporters to provide transcripts of the entire Manning court martial.

We knew that it was vital that the public have a virtual seat in Chelsea Manning’s trial1.  A public record of the court proceedings could fuel better, more accurate, and more frequent news coverage of the trial and could hold the government to account for its actions during the court martial. The government had forbidden tape recorders or cameras from entering the courtroom, so the only way to get an accurate accounting of the proceedings was sending in someone to take notes by hand.

Paying professional court reporters to transcribe the proceedings seemed like the perfect solution – if it was possible.

We knew it would be hard, but had no idea how hard. At every turn, we faced new obstacles to getting transcripts of the trial. So, finally, here’s the story of what we faced – and all the people who helped us surmount those obstacles.

Where do you even find a court reporter?

The very first problem we faced was finding a court reporter that would work with us. We knew we needed a reputable court reporter/stenographer that could do real-time transcripts and would be familiar with military jargon. But many court reporters rely on military court systems for their livelihood and didn’t want to jeopardize those relationships. In addition, we were asking for an incredibly quick turnaround time in conditions that didn’t allow the court reporters a recorded backup, or the ability to ask for any court participants to slow down or repeat their statements, like most court reporters can. Given the long court hours, this puts a toll on any court reporter, no matter how good.

Tony Rolland

Tony Rolland, who connected us with Gore Brothers

We were incredibly thankful when court reporter Tony Rolland (pictured right) approached us and recommended Gore Brothers. They are a professional court reporting firm that serves the larger DC/Baltimore metropolitan area. While other court reporters turned down our business, Gore Brothers understood how important it was to have accurate, timely records available to the public for one of the most important trials in our lifetime. Even though it was a politically contentious issue, Gore Brothers took us on and agreed to send in court reporters.

Working with Gore, we realized that one court reporter wasn’t going to be nearly enough. Instead, Gore brought together a team of 6 court reporters so that there would be continual coverage throughout the many weeks of the trial.

We know that journalists need transcripts quickly in order to write stories about the trial, and so we prioritized speed in getting these transcripts made. That meant two court reporters every day: one covering the morning and one covering the afternoon. By having court reporters only covering half days, we could ensure that we got transcripts edited and live on the website faster – morning sessions would go live at 7 PM in the evening, afternoon sessions would be published early the following morning.

Wait, it costs how much?

The second barrier was funding. We knew that professional court reporters were expensive, but we underestimated how expensive. We originally believed we needed to raise $40,000-$50,000 to cover the entire trial.  But it quickly became apparent that we needed to raise twice that much.

What made this possible? Amazingly, it was individual donors. Over one thousand six hundred people chipped in $10, $20, and $50 because they believed that the Manning trial should be public for the whole world. The average donation was under $100.

We made the platform, but ultimately it was the generosity and faith of individuals making small contributions that made the transcripts possible.

Taking on the U.S. government

Money and a team of top-notch court reporters weren’t the only thing we needed to cover the Manning court martial. We also had to get into the courtroom, and the government made it very difficult for us and many other media organizations to access the trial.

We knew there were strict regulations preventing any electronic equipment in the courtroom, but the media center allowed journalists to bring in laptops as long as they didn’t record or connect to the Internet during the proceedings.

We knew we were far more likely to be allowed to bring stenography equipment into the media center than into the courtroom, so we teamed up with the Verge, the Guardian, and Forbes. Each organization requested a press pass for their reporter and a second press pass for a court reporter to accompany their reporter.

Unfortuantely, each was issued only one press pass, meaning there wasn’t an extra space for our court reporter.

And we weren’t the only ones shut out. Of the 350 media applications the government received, only 70 were granted.

We weren’t ready to give up. With the help of the Reporters Committee for Freedom of the Press, we organized a coalition of twenty major media organizations – including the Los Angeles Times, NPR, Fox News, and the New Yorker – and sent a letter to the Army requesting two additional press passes.

We also tried to find someone to lend us a press pass.  We reached out to individual media organizations and also tweeted in hopes that someone would lend us one, with no luck.

I flew out to Fort Meade the weekend before the court martial was scheduled to begin and began approaching journalists who had been granted press passes. Unsurprisingly, almost all of them refused to lend Freedom of the Press Foundation a pass.  Many wanted to help, but they didn’t want to give up their press passes for the first day of a historic trial.

Finally, the night before the trial began, we managed to get one press pass for the first day. Nathan Fuller, a blogger for the Private Manning Support Network2, temporarily loaned us his pass. We are deeply indebted to Nathan for giving up his seat in the media center that day. It’s the only reason we managed to get a transcript of the first day.

After the first few days, the crowd in the media center thinned. We were able to use donated press passes from ARD German Radio, the Verge and Forbes.

During the trial

When court reporters work, they use a computerized stenotype machine to make a quick transcript. They sit close to the judge so that they can hear everything, and have the ability to interrupt proceedings or ask for clarifications in order to get an accurate transcription.  Above all, court reporters make a recording of everything, and double-check their transcripts against the audio recording.

Our court reporters were denied all of these things. They were in a room with the rest of the media, watching a live video feed of the court proceedings. The audio was muffled and difficult to understand at times, and there was no way to interrupt proceedings when things were hard to understand.

Worst of all, they were forbidden recording devices – so there was no way to double-check the accuracy of their notes. Instead, our court reporters simply had to transcribe as quickly as possible, often without breaks for long stretches of time, and try to get every word down accurately.

We also had trouble switching out court reporters midday. The strict rules meant that everyone who wanted in the media center had to be on base by 8 AM. This meant that both of our court reporters had to be on base at 8 AM, even though one didn’t start working until after lunch.  It was not until the defense brought this issue to the judge was our court reporter allowed to show up half way through the day.

Alexa O'Brien

Alexa O’Brien outside the media center at Ft. Meade. Photo by Xeni Jardin.

On more than one occasion, we ran into technical difficulties. Once we even lost a large section of the transcription.  Journalist Alexa O’Brien (pictured left) –whose own meticulous hand-typed transcripts of the trial have been an invaluable service to the public–generously offered to lend us her transcript from that day, for which we are deeply grateful. Her attention to detail is one of the many reasons we awarded Alexa a grant before the trial began.

After the trial

In all, we raised over $100,000 – all from individual contributions.

After fees taken out by credit card processors and our fiscal sponsor, that was about $5,000 more than the total needed to pay for the court reporters.

When we originally announced this campaign, we promised to donate any extra funds to the Manning Support Network. The Support Network has decided to apply half of that money to Chelsea Manning’s legal fees during her appeal and has generously offered to donate the other half back to the Freedom of the Press Foundation so we can continue our work.

You’ve probably noticed that there were a lot of people who went out on a limb to help us – folks like Tony Rolland, Gore Brothers, Nathan Fuller, Alexa O’Brien, Forbes, the Verge, the Guardian, ARD German Radio, the twenty media organizations that signed onto a coalition letter in support of our endeavor, and the hundreds upon hundreds of people who donated to ensure we could cover the costs of the court reporters. It is their generosity and their courage that was responsible for the Manning transcripts being freely available to the public today.

  • 1.Shortly after the trial concluded, Chelsea Manning publicly acknowledge that she identifies as a woman and prefers the name “Chelsea” to “Bradley.” We respect this decision and will use it going forward when possible. However, in the transcripts her name is still written as “Bradley” for historical accuracy.
  • 2.Disclosure: I am a steering committee member of the Private Manning Support Network, and also a proud co-founder.

The cost of censorship in libraries

Libraries across the country are routinely overblocking content, censoring far more than is necessary under the law. This means library patrons are cut off from whole swaths of the World Wide Web, hampering their access to knowledge.

A version of this was originally published on EFF Deeplinks.

This year marks the 10-year anniversary of the enforcement of the Children’s Internet Protection Act (CIPA), which brought new levels of Internet censorship to libraries across the country. CIPA was signed into law in 2000 and found constitutional by the Supreme Court in 2003. The law is supposed to encourage public libraries and schools to filter child pornography and obscene or “harmful to minors” images from the library’s Internet connection in exchange for continued federal funding. Unfortunately, as Deborah Caldwell-Stone explains in Filtering and the First Amendment, aggressive interpretations of this law have resulted in extensive and unnecessary censorship in libraries, often because libraries go beyond the legal requirements of CIPA when implementing content filters. As a result, students and library patrons across the country are routinely and unnecessarily blocked from accessing constitutionally protected websites.

First, libraries don’t actually have to comply with CIPA, which only applies to libraries that accept e-rate discounts or Library Services and Technology Act grants for Internet access; libraries that turn down this funding need not comply with the law. For example, Dr. Martin Luther King, Jr. Library in San Jose has successfully fought initiatives to install Internet filters, even at the cost of certain federal funds.

For institutions it does cover, CIPA has three requirements: that schools and public libraries adopt a written policy that includes an Internet filter, that they hold a public meeting before the policy is enacted, and that the Internet filtering is enforced when the computers are used. As Caldwell-Stone explains, the Internet policy must include a few things, specifically:

Schools and libraries subject to CIPA must certify that the institution has adopted an internet safety policy that includes use of a “technology protection measure”—filtering or blocking software—to keep adults from accessing images online that are obscene or child pornography. The filtering software must also block minors’ access to images that are “harmful to minors,” that is, sexually explicit images that adults have a legal right to access but lacking any serious literary, artistic, political, or scientific value for minors.

According to CIPA, libraries must place filters on all the computers owned by the library, though the filter can be turned off upon request. Schools that are covered by CIPA have some additional requirements (see text of CIPA).

What should not be censored under CIPA? Even a casual reading of the law makes it clear that only images, not text or entire websites, are legally required to be blocked. Libraries are not required to filter content simply because it is sexual in nature (sexual content isn’t necessarily obscene; it may have serious literary, educational, or artistic value, for example). Libraries aren’t required to block social networking sites, political sites, sites advocating for LGBTQ issues, or sites that explore controversial issues like genocide or gun laws or WikiLeaks.

But unfortunately, that’s not what’s happening on the ground. Libraries across the country are routinely overblocking content, censoring far more than is necessary under the law. This means library patrons are cut off from whole swaths of the World Wide Web, hampering their access to knowledge.

Problems with CIPA

After 10 years of CIPA, we now know that the law is widely misunderstood and used as an excuse for censorship. Here are a few of the main problems:

Library filters block constitutionally protected content. Library filters often block many sites that aren’t pornographic or obscene in nature. This may happen because the filters aren’t very accurate at detecting certain types of content or it may happen because the libraries set the filters to block content that should be accessible (filters typically have a range of options that can be manually adjusted during setup). As a result, filters have been known to block LGBTQ-themed sites, websites for art museums, information on teen smoking, Second Amendment advocacy sites, and sites about role playing games.

Filters don’t actually effectively block obscene content. CIPA’s objective is to prevent certain harmful and obscene material from being accessed from libraries and schools. But filters aren’t perfect. In addition to blocking legitimate content, filters can fail to block certain content that is obscene. Testing and analysis (PDF) of several available filtering technologies conducted by the San Jose public library in 2008 found that filters don’t work:

In all four filters tested, image filtering had a low rate of accuracy. Many images of an adult sexual nature were displayed on web pages accessed by the testers, and additionally the image search results pages and most of those images’ full-size versions and/or parent sites could be accessed as well. Because of the ability of image search engines (like Google Images and Yahoo Image Search) to display thumbnails which often aren’t treated as “real” images by the filtering programs, image filtering is a problem for the filtering software’s AI. Images of an adult sexual nature from image search engines, pages with images of an adult sexual nature but “fake” innocent text, or images of an adult sexual nature posted to social sites like Craigslist were consistently displayed in all four filter tests.

The deficiency of filters was emphasized by the very public failure of Homesafe, a network-level filter that was offered by one of Britain’s largest Internet providers. The filter was designed to block adult content on the network level, but in late 2011 it was revealed that the filter failed to block Pornhub, which offers thousands of free explicit videos and is ranked as the third largest pornography provider on the web.

Kids are under-prepared for the open web. One of the harmful side effects of CIPA is that many kids who rely on schools and libraries for Internet access are prevented from experiencing the unfiltered web.  While in the short -term this supposedly protects children from accessing harmful content, it also robs kids of the chance to learn skills necessary to navigate the web as a whole. When websites such as social networking sites, political advocacy sites, and LGBTQ-themed sites are censored from the Internet experience of young adults, we are failing to empower our children with the skills they need to use good judgment, common sense, and basic precautions when browsing the web. Rather than employing overly stringent filters to censor the Web, libraries and schools should educate students to protect themselves online.

We don’t know exactly what’s being blocked. Among the many problematic issues with Internet filters in libraries is the lack of transparency around what’s filtered. There’s no solid documentation of which libraries are filtering what specific websites. Part of this stems from libraries not being transparent about their decision to voluntarily block more content than required by law. Additionally, most filtering technology companies closely guard their algorithms for blocking sites, claiming trade secrecy. Because we don’t have a comprehensive list of what’s getting blocked, it’s difficult to judge whether some filters are more speech-friendly than others or whether some libraries have set their filters to censor more content than they should.

Content blocking goes against the ethical obligations of librarians. Librarians play an important role is preserving free speech online — a role we recognized with our 2000 Pioneer Award honoring librarians everywhere. The American Library Association has codified the ethical obligations involved in its code of ethics: “We uphold the principles of intellectual freedom and resist all efforts to censor library resources.”

What can be done: fighting back against censorship in libraries

If you are concerned about the harmful ramifications of Internet censorship in libraries, you can help fight back:

Speak to your library. Find out if your library has a policy regarding censorship and ask to see it. Voice your concerns about the harmful ramifications of filters in libraries, and explain that filters are never 100% accurate.

Attend the public event. Every library that is seeking to institute a new censorship policy under CIPA is required to have an open meeting to solicit public feedback. Attend the meeting and let the library know that you think your community will benefit from an uncensored Internet.

Ask to have the filter removed. As a library patron, you may find online content blocked that obviously should not be – such as anatomy sites necessary for research.  If this happens to you, don’t ignore it and try to find an alternate source. Tell the librarians on staff what happened and ask to have the filter removed so you can access the legitimate content. Every time you speak out for your rights to access content, you’re making the librarian aware that the filters are blocking too much.  This not only helps prompt libraries to revisit filtering policies, it helps ensure libraries are familiar with the process of removing filters upon request.

Celebrate 404 Day with EFF. Next April 4, EFF will join several partners around the country to raise awareness of library Internet censorship. Mark your calendar now and stay turned for more information. Want to host an anti-censorship event in your school or community on that day? Email parker@eff.org and we can help.

Ethiopian blogger will face 18 years in prison

Eskinder Nega came to the United States for college, studying at American University before returning to Ethiopia to become a journalist. He founded four newspapers—all of which were shut down by the Ethiopian government—and has been jailed repeatedly for his outspoken articles. His journalism license revoked, Nega moved to the digital world, becoming a blogger and using online platforms to discuss the political situation on the ground in Ethiopia.

This was originally published on EFF Deeplinks.

Ethiopian Constitution

“Everyone has the right to freedom of expression without any interference. This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.”

Yesterday, the Ethiopian Supreme Court upheld the conviction and extreme sentence of award-winning online journalist Eskinder Nega, who now faces 18 years in prison.  Nega was arrested in September 2011 and charged with “terrorism” under a vague law in Ethiopia that has been used to target online journalists and political dissenters. His trial and appeal faced repeated delays, while international human rights and free expression groups continued to criticize his imprisonment and punishment. EFF, PEN America, the Committee to Protect Journalists, and others campaigned for his release, and a United Nations panel found his conviction to be in violation of international law.

Ethiopian Constitution

“Everyone has the right to freedom of expression without any interference. This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.”

Mohamed Keita of the Committee to Protect Journalists said in response to the Supreme Court’s ruling “The persecution of Eskinder and other journalists is the hallmark of a regime fearful of the opinions of its citizens.”

Eskinder Nega came to the United States for college, studying at American University before returning to Ethiopia to become a journalist. He founded four newspapers—all of which were shut down by the Ethiopian government—and has been jailed repeatedly for his outspoken articles.  His journalism license revoked, Nega moved to the digital world, becoming a blogger and using online platforms to discuss the political situation on the ground in Ethiopia. While many journalists in Ethiopia have been silenced or fled the country to protect their lives and the lives of their family members, Eskinder Nega refused to leave or stop writing. His courage and dedication as a journalist have made him an international symbol of press freedom and the power of the Internet to maintain free speech in repressive conditions.

Eskinder Nega wrote passionately about the opportunity for Ethiopia to embrace human rights and free expression.  In one blog post, he wrote:

Tyranny is in retreat everywhere. It has lost one of its two last great bastions, the Arab world. The momentum is now on the side freedom. Freedom is partial to no race. Freedom has no religion. Freedom favors no ethnicity. Freedom discriminates not between rich and poor countries. Inevitably, freedom will overwhelm Ethiopia.

Eskinder Nega’s writings have provided a window into the realities of life on the ground in Ethiopia and served as inspiration for people in Ethiopia and around the world. His continued imprisonment denies the world of a unique and powerful journalistic voice from an area of the world that is hungry for accurate, fair, and multifaceted reporting.

It is time for Washington to speak up. The U.S. government has cultivated tight political ties with Ethiopia, and continues to nurture that intimate relationship, even as Ethiopia shuts down Internet freedom and intimidates its own online citizens. It can and should use its political influence with Ethiopia to champion the cause of bloggers wrongfully imprisoned. Nega’s case is emblematic of a larger problem: Ethiopia’s ongoing pattern of prosecuting journalists and political dissenters, imprisoning those who challenge the status quo, and using threats and technology to restrict its citizens’ liberty and free expression in the process. The United States’ ongoing silence in the face of such human rights abuses by a close ally is damning and shameful.

On losing Aaron Swartz

The thing about suicide is that it seems tragic but it also seems preventable. I toy with it again and again in my head, unable to let it rest, unable to turn away from it, wondering: what could we have done differently? What could I have done differently?

Like many of you, I’ve been reeling for the last two days over Aaron’s death.  I learned about it at 4 in the morning on Saturday, when I checked my messages during a restless night.  And then throughout the day, seeing the way friends and family processed his death, in long emails and beautiful memorial posts.

The thing about suicide is that it seems tragic but it also seems preventable.  I toy with it again and again in my head, unable to let it rest, unable to turn away from it, wondering: what could we have done differently? What could I have done differently?

I will always regret not doing more for Aaron when he was here. More to show him how deeply he affected my life and the lives of dozens if not hundreds of digital rights activists, the way he made the Internet a better place for millions of people. I will always deeply regret not rushing to his aid in whatever way possible when he was under a legal attack that could have sent him to prison for decades. And I regret that I never told him how inspired and impressed I was by his work to bring the public access to knowledge, how vital he was to the movement and to our successes. That I thought he was brave, a trait that so many other smart and ethical people lack.

We get so busy working, fighting one unending and difficult battle after another, that we forget to turn and thank the people bringing up the left flank. And now Aaron’s gone and it’s like a light has gone out, a force of energy and creativity and brilliance.

We should have had another fifty years of Aaron Swartz. We should have had another fifty years of his creativity and his commitment to justice, another fifty years of being inspired and impressed and delighted by everything he did.

There’s another piece of this – the piece where I roll up my sleeves and figure out what productive thing I can take away from this, where I commit myself to doing more good in the world to make up for all the good Aaron won’t be doing. Where I promise myself that I’ll never turn away from doing the right thing just because I’m busy, and I start working to fix the broken system that was used against Aaron. And that piece will come, but it will have to come tomorrow, because today all I have is layers and layers of grief.

Updating the Electronic Communications Privacy Act

In 1979, the Supreme Court created a crack in our Fourth Amendment protections. In Smith v. Maryland, the Court ruled that the Fourth Amendment didn’t protect the privacy of the numbers we dialed on our phones because we had voluntarily shared those numbers with the phone company when we dialed them. This principle — known as the Third Party Doctrine — basically suggests that when we share data with a communications service provider like a telephone company or an email provider, we know our data is being handed to someone else and so we can’t reasonably expect it to be private anymore.

Originally published on EFF Deeplinks blog.

Yesterday was a watershed moment in the fight for electronic privacy: the Senate Judiciary Committee overwhelmingly passed an amendment that mandates the government get a probable cause warrant before reading our emails. The battle isn’t over — the reform, championed by Senator Patrick Leahy (D-VT), still needs to pass the rest of the Senate and the House, and be signed by the President to become a law. But yesterday, thanks to thousands of people speaking out, we were able to begin the process of overhauling our archaic privacy laws into alignment with modern technology.

It was a big win for us, even if it was only the first step in the process of reforming privacy law to keep the government out of our inboxes. So we’re dedicating this EFFector to the battle to reform outdated privacy law: what the government can get, what the law ought to be, and what we’re doing to fix the gaping loopholes that leave users vulnerable to government snooping.

The Fourth Amendment and Electronic Privacy

The Fourth Amendment protects us from unreasonable government searches and seizures. In practical terms, this means that law enforcement has to get a warrant — demonstrating to a judge that it has probable cause to believe it will find evidence of a crime — in order to search a place or seize an item. In deciding whether the Fourth Amendment applies, courts always look to see whether people have both a subjective expectation of privacy in the place to be searched, and whether society would recognize that expectation of privacy as reasonable. The Supreme Court made this point clear in a landmark 1967 case, Katz v. United States, when it ruled that a warrantless wiretap of a public payphone violated the Fourth Amendment.

The Third Party Doctrine, or How the Supreme Court Got Us Into This Mess

In 1979, the Supreme Court created a crack in our Fourth Amendment protections. In Smith v. Maryland, the Court ruled that the Fourth Amendment didn’t protect the privacy of the numbers we dialed on our phones because we had voluntarily shared those numbers with the phone company when we dialed them. This principle — known as the Third Party Doctrine — basically suggests that when we share data with a communications service provider like a telephone company or an email provider, we know our data is being handed to someone else and so we can’t reasonably expect it to be private anymore.

The government took this small opening created by Smith v. Maryland and blew it wide open. It argued that this narrow 1979 decision about phone dialing applied to the vast amount of data we now share with online service providers — everything from email to cell phone location records to social media. This is bogus and dangerous. When we hand an email message to Gmail to deliver on our behalf, we do so with an intention that our private communications will be respected and kept in strict confidence, and that no human being or computer will review the message other than the intended recipient. But the government argues that because we handed our communications to a service provider, the Fourth Amendment doesn’t require them to
get a warrant before snooping around our inbox.

Luckily, the courts are beginning to agree with us. In a leading case where EFF participated as amicus, United States v. Warshak, the Sixth Circuit Court of Appeals agreed with us that people had a reasonable expectation of privacy in their email, even if it is stored with a service provider, and therefore the government needed a search warrant to access it. And in the recent Supreme Court case, United States v. Jones, Justice Sotomayor said that she thought the Third Party Doctrine was outdated, while she and four other Justices — including Justice Alito — raised concerns about the information gathered by our
cellphones.

The Eighties Were Good for a Lot of Things — But Not Sustainable Email Privacy Law

It’s not just the Constitution, however. Congress has made clear that certain forms of data are protected by federal statute as well. Following the Katz decision, Congress passed the Wiretap Act in 1968, supplementing the strong Fourth Amendment privacy protections in phone conversations by enacting a comprehensive set of federal statutes. These statutes were designed to ensure that law enforcement has a compelling reason before intercepting phone calls.

And as electronic communication started to become more prevalent, Congress passed the Electronic Communications Privacy Act (ECPA) in 1986 that somewhat improved the privacy rights around certain electronic communications. But as it reflects the technology of 1986, ECPA has aged poorly. It doesn’t address documents stored in the cloud, information revealing our personal associations, or the vast quantities of location data our mobile devices collect on us everyday. And, as a result of loopholes in the law, the Department of Justice, citing ECPA, has argued that it has a right to access emails without a warrant as soon as they are 180 days old, or have been opened and left on the server.

We think that 180-day limit and a distinction between opened and unopened email is arbitrary and wrong. As the Washington Post said in an editorial earlier this week, “If you left a letter on your desk for 180 days, you wouldn’t imagine that the police could then swoop in and read it without your permission, or a judge’s.”

That’s why this week’s vote was so important: it was a critical first step in updating ECPA to evolve with the modern technologies we use today, and to close archaic loopholes that give government too much access with not enough judicial oversight.

What EFF and Activists Like You Are Doing

We’re taking a two-prong approach.

First, we’re fighting for the Fourth Amendment in the courts. We practice impact litigation, taking on clients pro-bono in cases where we believe we can create positive legal precedent around digital privacy and government surveillance. We also submit amicus briefs in cases where we don’t have a direct client, such as in the Warshak and Jones cases noted above. In Warshak we argued that the government could only access emails stored on an ISP with a search warrant, notwithstanding the third party doctrine. And in Jones, we argued the government’s attachment of a GPS tracking device to a car for 28 days was a Fourth Amendment “search,” meaning a warrant was required. The Court agreed with us in both cases, and
as a result privacy protections are stronger now than in the past. And we’ve filed many more amicus briefs this past year, arguing for a search warrant requirement in cases involving cell phone location records [PDF], GPS devices, and home video surveillance.

Second, we’re creating a movement of engaged Internet users and rallying them to demand the government stay out of our email. Yesterday’s win was a result of the tens of thousands of concerned individuals who signed our petition to Congress calling for ECPA reform and who spoke out in other ways. We’re also teaming up with advocacy groups, web companies, start-ups, and venture capitalists in demanding ECPA reform through the Digital Due Process coalition. And we recently joined other advocacy groups in launching VanishingRights.com.

What aren’t we doing? Compromising. Unfortunately often the pressure in DC inside politics is to trade off one important right against another. We don’t think that’s EFF’s role. Instead, we’re advocating for what’s best for the Internet and Internet users, and while we are flexible, we aren’t willing to horse trade with your privacy and due process.

Want to read more about ECPA and our work to reform it? Check out these links:

Take action: Don’t let privacy law get stuck in 1986

Attempt to Modernize Digital Privacy Law Passes the Senate Judiciary Committee

ECPA and the Mire of DC Politics: We Shouldn’t Have to Trade Video Privacy to Get Common-Sense Protections of our Email

Don’t be a Petraeus: A Tutorial on Anonymous Email Accounts

Reform to Require Warrant for Private Online Messages Up for Vote, but Down on Privacy

When Will Our Email Betray Us? An Email Privacy Primer in Light of the Petraeus Saga

From the Nation: Access Blocked to Bradley Manning’s Hearing

Note: This article was originally published at the Nation, and I’m just keeping a copy here for historical purposes. Note that this was before Chelsea had come out as a transwoman.

Bans on recording devices and Internet access and other arbitrary rules are preventing the public from witnessing this historic trial.

The WikiLeaks saga is centered on issues of government transparency and accountability, but the public is being strategically denied access to the Manning hearing, one of the most important court cases in our lifetime.Twenty-four-year-old Private First Class Bradley Manning is facing life in prison or even the death penalty for leaking hundreds of thousands of documents about US wars and diplomacy to the whistleblower website WikiLeaks. Some of the documents in question are now posted online and have been the fodder for news articles and public discussion about world politics for well over a year. This case will show much about the United States’s tolerance for whistleblowers who show the country in an unflattering light. Are we a nation that tolerates criticism and values transparency? Or are we willing to crack down on whistleblowers of conscience? Unfortunately, the military is taking steps to block access by the media and the public to portions of the proceedings, robbing the world of details of this critically important trial.

No full transcript available

The details of Bradley Manning’s prosecution aren’t making their way into the public domain in large part because there is no full transcript being made public. During a recess from the hearing, I questioned a public affairs officer, who refused to provide his name, about when a transcript would be made available. He said that it would likely be three to four months—long after the media interest had faded.

Computers and recording devices banned

The government has banned all recording devices, audio or video, from the media center or the courtroom. This is particularly galling because the government has ample ability to record the proceedings in full and make them publicly available; in fact, the trial is being recorded and livecast to the media center, where reporters under the strict supervision of public affairs officers are taking frantic notes.

Journalists are forbidden to connect to the Internet, making the possibility of live tweeting and live blogging challenging. The government allowed a mere twenty members of the public into the hearing. Spectators were denied laptops, meaning the only way for the public to get notes on the pretrial hearing is by scribbling notes on paper.

Media access denied or rescinded

When Nathan Fuller applied for a press pass to attend the hearing and take notes from the media center, his request was granted—and then rescinded. Among other things, Fuller is an intern with the Bradley Manning Support Network, a coalition of individuals and organizations working to cover the financial costs of Manning’s defense and educate the public about the issues involved. On Monday, I asked the public affairs officer at the hearing what criteria were used to assess whether someone qualified as a journalist for the purposes of receiving a press pass, and he said he did not know. I asked how many other individuals had been denied press passes to the hearing, and he again replied that he didn’t know. I asked how many other individuals had received press passes only to have them rescinded and got the same non-response. He didn’t know if there was a phone number for someone who would have the answers to these questions. I asked my questions again on Tuesday, and the public affairs officer still knew nothing—except that he wouldn’t have an answer for my questions that day.

Overflow theater closed down even when people are barred from the courtroom

On the first day of the hearing, individuals not among the first twenty to arrive at the hearing were given access to a theater across the street. While recording devices were not allowed, this theater offered the flexibility to enter and leave at will. As a result, there was access to cars where laptops and cell phones were stored, which facilitated reporting. The theater also provided a way for those who were late to the hearing to be able to sit down and start watching the proceedings right away, instead of waiting in an empty trailer for an hour or more for the first recess. This is particularly important because there were long lines to have vehicles inspected to gain entrance to the base, and there was no published schedule for when the hearing would begin, making lateness a frequent occurrence.

After the second day, however, the overflow theater was closed down. I spoke to a military representative who said the theater was closed down because the courtroom wasn’t full. It is true that Saturday the courtroom was not at spectator capacity, but that was the day of the public rally protesting the prosecution of Bradley Manning, so it’s not surprising there were fewer people in the court. The courtroom was at capacity on Tuesday and two individuals who had driven in from Occupy DC were denied entrance because there were not enough available seats. Nonetheless, the military still refused to open the theater.

No accommodations for disabled and elderly access

If you’ve got a small bladder, poor hearing or can’t handle stairs, then forget about attending Manning’s trial. I was particularly sad to see famed Pentagon Papers whistleblower Daniel Ellsberg struggling to hear the proceedings. I spoke to the military police and urged them to open the public theater so that individuals like Ellsberg could sit closer to the sound system. I was rebuffed.

Access denied

Manning’s pretrial hearing is being held at Fort Meade in Maryland. Individuals who want to drive on base have to undergo a lengthy inspection of their vehicle, often waiting in line for a long period of time. And sometimes even waiting in line won’t get you in: Lt. Daniel Choi, a veteran and outspoken advocate for ending the military’s discriminatory policies toward LGBT servicemembers, was held at the entrance at length. The military personnel at the entrance to the base took issue with Lt. Choi’s military uniform and delayed his entrance to the base for some time. Though he eventually passed through security, Choi was there only briefly before being removed from the base; his uniform was ripped and his wrist injured as he was forcibly evicted. The military, which did not charge him, accused him of “heckling,” though no witnesses saw any evidence of untoward behavior on Choi’s part.

Lt. Choi spoke out against the Manning trial during an interview with Keith Oblermann. “You don’t have to be in the military to understand this is a show trial,” he said, “This is a farce of justice and being in that courtroom this weekend, I don’t think that America has had lower moments.”

The long delay at the entrance caused Choi to arrive late at the courtroom, and because the theater was closed he was unable to watch much of the proceedings.

While the documents attributed to Manning have been widely dispersed and are the subject of many news articles, the government insisted on shutting the public and the media out of large portions of the hearing. On the third day of the trial, the investigating officer decided to accommodate the prosecution’s request for a closed hearing for a portion of the next day. The investigating officer found that the information had been properly classified and that the need to maintain that classification outweighed the value of a public and open trial. But the public, who has had access to the WikiLeaks releases for well over a year, was not given an opportunity to object. The only objection raised was from the defense team of Bradley Manning, to no avail. No explanation was provided regarding what information would be reviewed in the closed portion of the trial. And notably, the investigating officer allowed “relevant government agencies” to remain even as the public was ousted, without providing any information on what agencies were considered relevant.

No media organizations have yet contested the right to have access to the closed portions of the proceedings.

Wikileaks thrown out

Among those thrown out of the courtroom during the closed portions of the hearing were attorneys for the whistleblower website WikiLeaks. WikiLeaks had petitioned for guaranteed access to the hearing, and had sent in an attorney who had the highest level of secret security clearance. The Center for Constitutional Rights, which is representing Assange and WikiLeaks, is appealing their right to access the trial. In a press release, CCR legal director Baher Azmy said, “As counsel for WikiLeaks and Julian Assange, we must be given access to these proceedings. The lack of transparency that has been a hallmark of the military’s prosecution of Private Manning to date also serves to obscure his abusive conditions of confinement.” Assange and his lawyers are also concerned about the threat of an extradition request from the United States on matters raised in Private Manning’s proceedings.

At its heart, the Bradley Manning trial is about secrecy, about understanding how our own government as a world power operates in complex international waters, about debating the sacrifices we’re willing to make to advance our interests. Whatever interests the military may have in conducting its case against Manning behind closed doors, we as a society cannot tolerate attempts to rob us of knowledge of the court proceedings. This trial will change the history of our country; I only hope we get to be in the room when it happens.