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Supreme Court to rule on warrantless smartphone searches

The Supreme Court will hear a pair of cases that will set precedents on the expectation of privacy in your mobile devices. American police forces have treated smartphones are equivalent to a notebook -- something that can be thumbed through during a search without a special warrant. But your smartphone potentially holds thousands of photos, access to a lifetime of email, intimate conversations with family, friends (and attorneys!), passwords for dozens of services, and more. Warrantless smartphone searches might give police access to all the most intimate parts of your life -- if that isn't the sort of thing that courts should be overseeing, then what is?

Incidentally, this is a good argument for encrypted mobile device storage and strong mobile passwords.

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Patent mess goes to the Supreme Court

Two more high-profile patent cases are headed to the US Supreme Court, which has already agreed to hear a patent case this year. The patent system is in chaos, with ever-more-trivial patents being granted, and ever-broader theories of patent infringement being created by the Federal Circuit, the court that oversees the patent system.

A Supreme Court ruling that restored some sanity to patents would be very welcome indeed -- but if they went the other way, it would be dreadful. The only solution at that point would be for Congress -- whose campaigns depend on revenue from patent abusers -- to pass a new law (don't hold your breath).

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EPIC wants to sue NSA at the Supreme Court

The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to allow it to sue the US government over NSA spying; EPIC argues that only the Supreme Court has jurisdiction over the secret Foreign Intelligence Surveillance Court, and so they should be able to start with the Supremes and skip the lower courts. Cory 7

Secret rulings from America's shadow Supreme Court legalizes spying in one-sided hearings

America's 11-judge Foreign Intelligence Surveillance Court (FISC) has made more than a dozen classified rulings that vastly expanded the powers of America's spy agencies, operating under an obscure legal doctrine called "special needs." Under this doctrine, established in 1989 in a Supreme Court case over drug testing railway workers, a "minimal intrusion on privacy" is allowed in order to help the state mitigate "overriding public danger." FISC's rulings have widened this ruling to allow for wholesale spying in the name of preventing "nuclear proliferation," as well as terrorism. The NYT calls this a "shadow Supreme Court" but notes that FISC proceedings only hear from the government -- no one presents alternatives to the government's arguments. Much of the expansion of surveillance turns on whether metadata collection is intrusive (I think it is):

The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.

The court has indicated that while individual pieces of data may not appear “relevant” to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to the officials with knowledge of the decisions.

In Secret, Court Vastly Broadens Powers of N.S.A. [Eric Lichtblau/NYT]

(via Hacker News)

Supreme Court says states can limit freedom-of-information requests from out-of-state, Muckrock hacks around it with your help

Michael from MuckRock sez,

The Supreme Court ruled this morning that states have the right to restrict public records access to locals, meaning one more hurdle to would-be muckrakers everywhere. Even in-state requesters are harmed: It means one more bureaucratic hurdle and another excuse for agencies to respond in paper rather than electronically.

MuckRock has helped file requests in all 50 states -- important for projects like the Drone Census -- and we're looking for more volunteers to help ensure transparency from sea to shining sea.

States impacted:

* Alabama
* Arkansas
* Delaware
* Georgia
* New Hampshire
* New Jersey
* Tennessee
* Virginia

If you live in one of the above, fill out a simple form and we can help ensure that sunshine isn't restricted depending on where you live:

To keep filing in all 50 states, MuckRock needs your help (Thanks, Michael!)

Heinlein on Kirtsaeng

This really deserves its own post. In the comments on the post on Kirtsaeng -- where the Supreme Court just upheld the right to sell used goods, even if they were made abroad -- Shrikant quotes from Heinlein's classic short story Life-Line:

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back."

Supreme Court to Wiley publishers: your insane theory of copyright is wrong

The US Supreme Court has handed down a verdict in Kirtsaeng v. John Wiley & Sons, one of the most important copyright cases of the century. In it, the publisher John Wiley & Sons sought to block the import of legally purchased cheap overseas editions of its books by arguing that "first sale" (the right to resell copyrighted works) only applies to goods made in the USA. However you feel about cheap overseas editions and their importation into the USA, this was a disastrous legal theory. Practically everything owned by Americans is made outside of the USA and almost all of it embodies some kind of copyright. Under Wiley's theory, you would have no first-sale rights to any of that stuff -- you couldn't sell it, you couldn't even give it away. What's more, the other "exceptions and limitations" to copyright would also not apply, meaning that it would be illegal to photograph anything made outside of the USA (no di minimum exemption) or to transform it in any way (no fair use, either). Thanks goodness the Supremes got this one right!

Here's some choice bits of the decision (PDF)

These intolerable consequences (along with the absurd result that the copyright owner can exercise downstream control even when it authorized the import or first sale) have understandably led the Ninth Circuit, the Solicitor General as amicus, and the dissent to adopt textual readings of the statute that attempt to mitigate these harms. Brief for United States 27–28; post, at 24–28. But those readings are not defensible, for they require too many unprecedented jumps over linguis tic and other hurdles that in our view are insurmountable. See, e.g., post, at 26 (acknowledging that its reading of §106(3) “significantly curtails the independent effect of §109(a)”).

...In reaching this conclusion we endorsed Bobbs-Merrill and its statement that the copyright laws were not “in tended to create a right which would permit the holder of the copyright to fasten, by notice in a book . . . a restriction upon the subsequent alienation of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it.” 210 U. S., at 349–350.

And here's a serious smackdown of the "if I can make money doing it, copyright should protect it" theory of law:

Third, Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impossible, for publishers (and other copyright holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights.

Supreme Court Upholds First Sale Doctrine


Update: a great comment from Shrikant, below:

It would appear that the Supreme Court has essentially just paraphrased Robert Heinlein from Life-Line:

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back."

Supreme Court turns down ACLU bid to kill NSA warrantless wiretapping

The US Supreme Court has dismissed Clapper v. Amnesty International, which sought to overturn the secret, mass surveillance of the Internet by the NSA. EFF has its own lawsuit, which is still proceeding:

The court didn’t address the constitutionality of the FAA itself, but instead ruled that the plaintiffs—a group of lawyers, journalists, and human rights advocates who regularly communicate with likely "targets" of FAA wiretapping—couldn’t prove the surveillance was "certainly impending," so therefore didn’t have the "standing" necessary to sue. In other words, since the Americans did not have definitive proof that they were being surveilled under the FAA—a fact the government nearly always keeps secret—they cannot challenge the constitutionality of the statute. p> It’s shameful that the courts again have cut off another avenue for accountability regarding the NSA's warrantless and unconstitutional surveillance activities. But as disappointing as the Clapper decision is, the good news is the decision likely won't adversely affect our Jewel v. NSA lawsuit, which we argued in district court in December of 2012. Indeed, the Clapper decision makes the Jewel case one of the last remaining hopes for a court ruling on the legality of the warrantless surveillance of Americans, now conducted for over a decade.

The Ninth Circuit has already ruled that the Jewel plaintiffs have standing under settled law. The court's decision is based on solid ground because we have presented the court with evidence that dragnet warrantless surveillance has already occurred, through testimony and documents from AT&T and NSA whistleblowers. In fact, the court specifically differentiated the two cases in its Jewel opinion: “Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications."

Supreme Court Dismisses Challenge to FISA Amendments Act; EFF's Lawsuit Over NSA Warrantless Wiretapping Remains

Report from the Supreme Court's Kirtsaeng hearing: will you get to go on owning your stuff?

Yesterday, I wrote about the Supreme Court's hearting for Kirtsaeng v. Wiley, which threatens to undermine the very nature of property itself, taking away your right to sell, modify, loan and give away any foreign-made object that has embodies one or more copyrights. The Electronic Frontier Foundation's Parker Higgins has a close reading of the judges' reactions at the hearing. It's hard to know which way they'll go:

Today the Court mirrored our concerns about the right of Americans to resell the goods that they’ve legally acquired — from books to smartphones to cars — just because those goods happen to contain copyrighted materials and were manufactured overseas.

Defenders of Wiley’s position are quick to denounce those concerns as overblown. It's curious, then, that Wiley’s own lawyer, former Solicitor General Ted Olson, was hard-pressed to explain why. Justice Breyer asked about specific examples — buying a book overseas to give to your wife in the U.S., or reselling a Toyota manufactured in Japan with numerous individually copyrighted components — and did not seem impressed with the answers he got. And when Justices Breyer, Sotomayor, and Roberts questioned Olson about the "parade of horribles," raised by Kirtsaeng and supporting amici (including EFF), he asserted that, yes, indeed, sales of foreign made goods might require approval from the copyright holder, whether the seller is a Toyota distributor or a university library:

… if you’re going to use the product created by someone else in a way that’s contemplated by the copyright laws, maybe it’s required that you actually comply with the copyright laws by going to the owner of the copyright and saying, look, here’s what I propose to do, can I have a license to do this?

It goes without saying that a secondary market that exists only with the permission of innumerable copyright holders is a poor substitute for the genuine article. Consumers would be worse off for it, and it’s not what Congress intended.

A Parade of Horribles: Supreme Court Justices Consider the Limits of First Sale in Kirtsaeng v. Wiley

You've Been Owned: Stand Up For Digital First Sale [EFF Action Center]

Act now: your right to own property is being considered at the Supreme Court today

On the EFF's Deep Links blog, Parker Higgins presents the stakes in today's Supreme Court hearing for Kirtsaeng v. Wiley, which concerns the right of a student, Supap Kirtsaeng, to import textbooks from overseas and sell them in the USA. Wiley, a textbook publisher, argues that even though the books Kirtsaeng is selling are his property, that they have the right to dictate how and whether he may pass it on. Normally, copyright is limited by "first sale" -- once a copyrighted work has been sold once, it is the new owner's property. But Wiley argues that works that are manufactured offshore (that is to say, nearly everything!) are not subject to first sale. That means that everything from lending library books to selling used CDs to selling, giving away or lending practically every kind of electronics (all of which have copyrighted software that comes from offshore) will only persist with the permission of rightsholders, who can withhold it, or charge arbitrary sums for it.

It's good that the Supreme Court is hearing Kirtsaeng this term — in fact, we joined a brief encouraging them to — but the story isn't necessarily over once the decision comes down. The next step might be for Congress to respond with legislation. If so, they need to know what consumers think: if it looks like a sale and feels like a sale, it's a sale, with all the accompanying rights and privileges. We're joining our friends at Demand Progress in giving you tools to ask your Congressmembers to defend your rights in your digital goods.

We know how vigorous the copyright industry lobby is about pushing for laws in their favor, even when they're against the public interest. It's important we let Congress know now that we want to see first sale alive and well and protecting our rights in the things we buy, even if they are digital goods and the sale is labeled a license.

If the copyright industry has its way, you may have to seek permission or face penalties when you resell or tinker with the things you've bought. And if that comes to pass, then we've all been owned.

Your Right to Own, Under Threat

You've Been Owned: Stand Up For Digital First Sale [EFF Action Center]

Supreme Court case will decide whether you own your stuff

Writing in MarketWatch, Jennifer Waters explains the implications of a Supreme Court case, Kirtsaeng v. John Wiley & Sons, which turns on the question of whether you have the right to re-sell things you buy out of the country, or whether the copyrights embodied by your phones, clothes, gadgets, books, music, DVDs, and other possessions mean that you can't sell your stuff without permission from the original manufacturer.

Following Wiley's theory, you don't really own most of your possessions. You share ownership in your goods with the companies that made the goods you "bought" from them, and they get a veto over your disposal of them, and can also demand a cut of the proceeds.

Put simply, though Apple has the copyright on the iPhone and Mark Owen does on the book “No Easy Day,” you can still sell your copies to whomever you please whenever you want without retribution.

That’s being challenged now for products that are made abroad and if the Supreme Court upholds an appellate court ruling it would mean that the copyright holders of anything you own that has been made in China, Japan or Europe, for example, would have to give you permission to sell it.

“It means that it’s harder for consumers to buy used products and harder for them to sell them,” said Jonathan Bland (sic: Jonathan's surname is actually "Band"), an adjunct professor at Georgetown University Law Center, who filed a friend-of-the-court brief on behalf of the American Library Association, the Association of College and Research Libraries and the Association for Research Libraries. “This has huge consumer impact on all consumer groups.”

Your right to resell your own stuff is in peril