Big Wins for Privacy and Free Speech: 2018 in Review

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by Cindy Cohn and Michael Rosenbloom, Activist Post:

As 2018 draws to a close, we’ve gathered together some of EFF’s key legal wins this year. Some of these wins are only stops along the way to a larger goal, but each is hard fought, whether we’re serving as counsel or amicus curiae.

Every one of these victories helped move the needle of law in the direction of protecting your privacy and freedom of expression.

EFF Helps Protect Against Location Tracking

Carpenter v. United States: When the United States Supreme Court quotes you in upholding privacy, that’s a big win. The Supreme Court cited EFF’s amicus brief in its landmark Carpenter decision in June, holding that that the Fourth Amendment protects cell phone location information. In an opinion by Chief Justice Roberts, the Court recognized that location information, collected by cell providers like Sprint, AT&T, and Verizon, creates a “detailed chronicle of a person’s physical presence compiled every day, every moment over years.”

Perhaps the most significant part of the ruling is its explicit recognition that individuals can maintain an expectation of privacy in information that they provide to third parties. To build on this momentum, we’ve created a Surveillance Litigation Director position to head up this work, supported by EFF’s civil liberties legal team, with EFF Senior Staff Attorney Jennifer Lynch stepping into the role. Lynch will lead EFF’s tracking and development of ongoing legal cases to create the right opportunity, with an aim toward further codifying strong Fourth Amendment protections for user data collected by devices ranging from fitness trackers to license plate readers to smart meters.

Other location privacy wins: 

EFF Defends Innovation and Transparency in Patents

Personal Audio: After five years, EFF achieved final victory in defending the rights of podcasters nationwide from a wrongly-issued patent. In 2013, EFF filed an inter partes review petition with the USPTO, challenging claims in patent US 8,112,504. Personal Audio, the patent-holder, claimed that the patent covered effectively all podcasting technology. After more than a thousand people donated to our Save Podcasting Campaign, we successfully persuaded the USPTO that many examples of podcasting existed years before Personal Audio’s claims, and got those claims invalidated. On May 14, 2018, the Supreme Court declined to hear Personal Audio’s appeal.

Other Patent Victories:

EFF Helps Protect Against Device Searches at the Border

Alasaad v. Duke: EFF has long recognized that the Constitution must extend to the U.S. border, especially since the devices we travel with now carry our most intimate information. In September 2017, we filed a lawsuit along with our co-counsel the ACLU, challenging border device searches on First and Fourth Amendment grounds. We represent 11 travelers from a wide variety of professional, religious, ethnic, and national backgrounds. On May 10, 2018, the court issued a groundbreaking opinion denying the government’s motion to dismiss. The court ruled that (1) our clients have standing, meaning they are the right parties to bring this case, and (2) we stated legal claims that government’s conduct violates the First and Fourth Amendments. The case has moved on to the discovery process. This initial win sets the stage for ensuring that your device privacy is protected on the border.

EFF Protects Your Right to Free Speech in Domain Names

Fucknazis.usThe “seven dirty words” should not be a censorship list for domain names. EFF represented the owner of the website fucknazis.us, which had been suspended by the .us domain name registrar, because the domain name, fucknazis.us, contained a “dirty” word. We sent a letter to Neustar, the domain name registrar, threatening a lawsuit on First Amendment grounds, since the .us domain is sponsored by NTIA, part of the U.S. Department of Commerce. Since the federal government is involved in the administration of the .us domain, that makes that domain a government forum, subject to free speech protections.

After receiving the letter, Neustar restored the fucknazis.us domain name to our client, and changed their policy to no longer suspend or ban domains for containing “dirty” words in their names.

Other Free Speech Wins:

  • Imdb v. Harris District Court. (We supported a win at the District Court with an amicus brief. The case is on appeal to the Ninth Circuit and we have filed an amicus brief there as well.)

EFF Helps Protect Fair Use Online

Lenz v. UniversalAfter more than 11 years, EFF and Universal Music Publishing Group reached a favorable settlement in 2018 in what was often known as the “Dancing Baby” case. In 2007, YouTube removed a 29-second video posted by Stephanie Lenz of her young son dancing, with “Let’s Go Crazy,” by Prince, playing in the background. This video was an obvious fair use. Representing Lenz, EFF filed a lawsuit against Universal, to set a precedent that copyright holders cannot use the Digital Millennium Copyright Act (DMCA) to quickly remove such fair uses.

During the litigation, the Ninth Circuit made a key ruling that still stands today, that a copyright holder had to consider whether a work including copyrighted material is a fair use before sending a takedown notice.

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