Archive for the ‘Uncategorized’ Category

Professor Targeted by Phone Calls

Wednesday, May 11th, 2011
Chinese authorities offer no help to stop the harassment of a rights activist.

New Music Locker Services Fail To Recognize Full Potential

Tuesday, May 10th, 2011

Google announced today that it will join Amazon in offering consumers a cloud-based music locker service. Google’s news, which had been rumored for some time, presents an opportunity to both answer and ask some questions about the future of the music industry.

Those questions make clear that while services like these do improve the ability for fans to access their music, they still only get us a little bit closer to the larger goal: making sure artists get paid and fans are happy.

Do music locker services violate current copyright laws?

Unlike streaming services, such as Rhapsody or Mog, Google’s and Amazon’s music lockers allow users to upload their own music files and then access those files from either the Internet or devices equipped to run those companies’ programs (in Google’s case, that means a phone running the Android operating system).

For this kind of personal locker, Amazon and Google believe they don’t need licenses from record labels that own copyrights in the songs – and we agree. Essentially, all these services do is allow you to upload a song you already own and access that file from different browsers and devices, not much different from transferring a song ...

This Week in Internet Censorship

Tuesday, May 10th, 2011

This past week has been trying in a number of countries, including China, where a new central agency has been established to oversee the Internet, in a move that some experts have said would allow for tighter regulations. At the same time, rumors of a possible Facebook deal in China have been cause for concern, as such a launch would likely mean Chinese users would have access only to a censored version of the platform.

Were Facebook to bring a censored version of its social networking service to China, it wouldn’t be the first instance of a US company engaging in censorship overseas: Google famously filtered its search results from 2006 to 2010 by order of the Chinese government, and search engines Yahoo! and Bing continue to filter results. The OpenNet Initiative considers China to be one of the most pervasive filterers of online content.

Though no deal has yet been struck, Facebook spokesperson Adam Conner was quoted as saying, “Maybe we will block content in some countries, but not others. We are occasionally held in uncomfortable positions because now we're allowing too much, maybe, free speech in countries that haven't experienced it before.”

Tunisia Reverts to Filtering

In Tunisia, ...

California Proposes Strong Privacy Protections for "Smart Meters"

Tuesday, May 10th, 2011

The California Public Utilities Commission (PUC) has released a proposal for strong privacy protections for "smart meter" data, closely following the recommendations from EFF and the Center for Democracy and Technology. If adopted and finalized, the plan could become a model for how to protect sensitive consumer information while providing new ways to save energy.

California's PG&E is currently in the process of installing "smart meters" that will collect detailed data of energy use —750 to 3000 data points per month per household—for every energy customer in the state. These meters are aimed at helping consumers monitor and control their energy usage, but the information that is collected can reveal much more about a household's daily activities: when people wake up, when they come home, when they go on vacation, and maybe even when they take a hot bath.

Many third parties will want access to this sensitive information, and the California PUC has recommended strong protections for the transfer of the data to others. This should help prevent the data's misuse, hopefully blocking new intrusions into our home and private life. We hope the California PUC goes on to adopt its proposal, creating a blueprint for energy data ...

CUNY Likely to Reverse On Kushner, But The Pattern Stands

Tuesday, May 10th, 2011
It is appalling that the trustees of CUNY voted not to bestow an honorary degree on Tony Kushner, the acclaimed Pulitzer Prize winning playwright, because a trustee disagreed with his views on Israel. Denying him this honor solely because of his political views violates core First Amendment principles and is wholly inconsistent with basic notions [...]

New OCR Letter Marks Radical Change in Due Process Guidance

Tuesday, May 10th, 2011

Last week, FIRE sent an open letter to the Department of Education's Office for Civil Rights (OCR) in response to OCR's April 4, 2011, letter to federally funded colleges and universities nationwide, regarding their obligations to address sexual harassment and sexual assault on campus. As we discussed in our press release accompanying the open letter, OCR's latest policy guidance is, for a number of reasons, a deeply disappointing and concerning development for anyone who cares about individual rights and liberty in the academic setting.

I have already covered on The Torch the fact that OCR's April 4 letter, while calling for increased vigilance and new measures on the part of colleges and universities to address and prevent sexual harassment and sexual violence, neglects to instruct schools that their enactment and enforcement of harassment policies must fully respect students' free speech rights. The failure to even mention freedom of expression and its importance to the college campus is a departure from previous OCR guidance, which stressed that the obligation to follow federal regulations regarding sexual harassment need not be in tension with students' free speech rights. Meanwhile, Erica has written that the latest OCR guidance is part of a larger legislative ...

Beijing ‘Walls Out’ Protest

Tuesday, May 10th, 2011
China's government blocks the rights of its citizens to petition and protest.

Commentary: Justice Thomas: making waves in First Amendment jurisprudence

Tuesday, May 10th, 2011

Justice Clarence Thomas continues to strike his own jurisprudential path on the U.S. Supreme Court – whether it be his oft-noticed reticence at oral argument or his penchant for overruling precedent.

The Court’s ultimate originalist believes strongly in applying the original views of the Founding Fathers in interpreting the Constitution. In First Amendment law, Thomas has taken bold stances that distance him from his colleagues. Usually, in separate concurring opinions, he explains why he would overrule a leading First Amendment decision or why the Court has gone astray.

Read the rest of David Hudson’s analysis.

College Student Denied Graduation Walk Following Innocuous Facebook Post

Tuesday, May 10th, 2011

A student at St. Augustine's College in North Carolina was denied the ability to participate in his graduation ceremony because of a Facebook post that, according to the Vice President of Student Affairs, "jeopardized the integrity of the college."

Roman Caple, who had posted several messages of hope on Facebook in response to the tornado that struck the Raleigh, N.C., area, believes the message that provoked the university's ire against him was "St. Augs is holding classes tomorrow and students in Falcrest still don't have power. Like, wtf. Really? #dumb." Although innocuous and nondisruptive, this is likely the post that prompted the university to deprive Caple and his family of the symbolic ritual that commemorates Caple's accomplishments. Other messages that Caple had written recently on Facebook sounded like this: "We all need to set our differences aside and help one another. Falcons we will continue to fly high because that's what we do. Help your neighbor, if need be, Falcons are one."

Punishing a student for such benign criticism of a college's practices, especially after a fatal natural disaster, is not only an unfairly draconian way of treating a graduating student, but will surely yield an environment where ...

Analysis: Will Osama bin Laden death photos ever appear?

Tuesday, May 10th, 2011

In the court of public opinion, President Barack Obama’s decision not to release photographs of the dead Osama bin Laden seems to be playing well. A just-released NBC News poll found that nearly two-thirds of the public agrees with Obama that the images should not see the light of day.

But in federal court, where the issue will inevitably be fought out, the outlook is less certain. “I think in time the photos will have to be released, regardless of President Obama’s present inclinations,” says Dan Metcalfe, who for more than 25 years headed the Justice Department’s office of information and privacy, which sets policy on implementation of the Freedom of Information Act.

Read the rest of Tony Mauro’s analysis.


Reader Privacy Bill Passes California Senate – Moves on to State Assembly

Tuesday, May 10th, 2011

California took another big step towards updating reader privacy today. The State Senate unanimously passed SB602, the Reader Privacy Act, which would bring book privacy law into the digital age. The bill prevents the disclosure of information about readers from booksellers without a warrant in a criminal case or a court order in a civil case, and also requires booksellers to report the number and type of requests that they receive so that we can track government demands for reader information.

The bill, authored by State Senator Leland Yee, and sponsored by EFF and the ACLU, won bi-partisan support, and it's easy to see why. The books we choose to read reveal deeply private information about what we think, believe, question, and worry over. This data could lead people to interpret -- or misinterpret -- things like our political and religious beliefs, our health concerns, and our financial situations, so the standards for disclosure must remain high.

But while reader privacy in bricks and mortar public libraries is already well established in California law, it's time for a 21st Century upgrade. Digital book services, libraries, and bookstores collect far more information than physical bookstores and libraries do, ...

Schools in a Rush to Comply with Office for Civil Rights’ ‘Dear Colleague’ Letter

Monday, May 9th, 2011

Last week, FIRE sent an open letter to the Department of Education's Office for Civil Rights (OCR), taking issue with several aspects of its April 4, 2011, "Dear Colleague" letter.

FIRE's central concern regarding OCR's letter lies with its damaging impact on the due process rights of students accused of sexual harassment or sexual violence. The letter mandates that colleges and universities receiving federal funding employ the "preponderance of the evidence" (i.e., more likely than not) standard, rather than the "clear and convincing evidence" standard, when adjudicating student charges of sexual harassment and sexual violence.

This policy shift means that schools will find accused students guilty when a hearing body is 50.01% confident that the alleged misconduct took place. Curiously, OCR is telling schools simultaneously that sexual violence is a grave and serious matter and that schools must require less evidence in order to satisfy a guilty finding. In our open letter, FIRE points out that not only is mandating this new standard dangerous to accused students whose entire futures are in jeopardy, but that it is also legally unsupported.

Unfortunately, the threat of exclusion from federal funding is a coercive one indeed. In the month since the OCR ...

Utah Court Strikes Blow for Free Speech, Dismisses Trademark and CFAA Claims Against Political Activists

Monday, May 9th, 2011

As we've noted before, many trademark owners are none too happy when political activists use their marks as part of a larger statement about the owners' business or political practices. Sometimes, that unhappiness takes the form of improper legal threats and even lawsuits designed to silence critical speech. In a ruling issued today, a federal judge called a halt to one such lawsuit, affirming the essential balance between trademark rights and free speech.

The case has its origin in a brief action carried out by members of Youth For Climate Truth (YFCT), a group concerned about climate change. The action targeted Koch Industries, a billion dollar company that has publicly challenged the science behind climate change theories. Borrowing "identity correction" techniques pioneered by groups such as the Yes Men, YFCT issued a press release, purportedly from Koch, in which the company promised to stop funding organizations that deny climate change. The release was posted for a few hours on a website ( that partially imitated Koch Industries' own website. The action received some media coverage, but no press organization thought the release was real. If Koch were sensible, that should have been the end of it.

But Koch ...

China Bars Writer From Event

Monday, May 9th, 2011
Authorities block a writer from traveling to Australia and demand that he not publish his works abroad.

Partial Victory at Wesleyan University: Freedom of Association Restored, But New Policy Continues to Discriminate Against Greek Organizations

Monday, May 9th, 2011

As the press release FIRE sent out this morning details in full, Wesleyan University has reformed a policy that would have punished students for "participating in social activities" on the property of any "private societies" not under Wesleyan's control. The policy was intended to force the Beta Theta Pi (BTP) fraternity to officially affiliate with the university under an agreement that the fraternity had found unduly burdensome, so BTP came to FIRE for help. After we intervened and the policy generated an overwhelmingly negative response from Wesleyan students as well as national media outlets, Wesleyan altered the policy.

Unfortunately, the revised policy is the reason we can call these developments only a "partial victory": the revised policy now explicitly discriminates against Greek organizations of Wesleyan students, forbidding students from "eating, sleeping, or participating in social activities" with unrecognizied Greek organizations. As Robert says in today's press release: "While it has moved in the right direction, Wesleyan has yet to live up to its stated promise of freedom of association. A private university may require its students to live on campus or in program housing, but Wesleyan's newest policy singles out Greek organizations without providing any reason why."

It's worth revisiting ...

TCJ: Black Eye Anthology Confiscated at US/Canada Border

Friday, May 6th, 2011

The Comics Journal reports that copies of the anthology Black Eye were confiscated from artist Tom Neely when he was entering Canada for this weekend’s TCAF festival.

According to Neely:

“… They took ‘em. I tried to get them to just ship them back to me at home, but they said they were required to send it to Ottawa for review… if they found the material to be ‘obscene’ they would take ‘further action.’ I asked what ‘further action’ meant and he said they would just destroy them. Or there is a chance they might ship them back to me.

This incident is part of a recent, growing trend of customs searches and seizures of comics that the CBLDF has been following. The CBLDF has issued an advisory for travelers on crossing borders with comic book materials that is available here as a Word document, and here as a PDF file.

This Week in the News: FIRE Responds to OCR Letter

Friday, May 6th, 2011

Torch readers are well aware of FIRE's firm stance against the April 4, 2011, letter from Assistant Secretary for Civil Rights Russlynn Ali of the United States Department of Education's Office for Civil Rights (OCR) to all colleges and universities receiving federal funding. The letter demands that schools lower the standard of proof to a "preponderance of evidence" standard when adjudicating student disciplinary matters concerning sexual harassment or sexual violence.

Just yesterday, FIRE sent out an open letter to OCR and issued a press release about how lowering the standard of proof would be a huge blow to students' due process rights. Our opposition to the OCR letter was noted by Tom Knighton of United Liberty, Caroline May of The Daily Caller (with quotes from Will and Greg), Karin Kapsidelis of The News & Advance (Lynchburg, Va.) and The Chronicle of Higher Education. Elsewhere, our opposition to the Campus Sexual Violence Act (commonly known as the SaVE Act), which would codify the lower standard of proof in federal legislation, was reported by Bryan Ens of Student Free Press.

In national news, once word of Osama Bin Laden's death hit the airwaves, college students all over the nation celebrated ...

Journalists Held in Crackdown

Friday, May 6th, 2011
Chinese authorities move against reporters covering the detention of government critics and activists.

University Shelves Plans to Honor Playwright Because of Alleged Criticisms of Israel

Friday, May 6th, 2011

In a rare move, the trustees of the City University of New York have voted to shelve an honorary degree that one of its campuses, John Jay College, planned to award to Tony Kushner, the Pulitzer Prize-winning playwright of “Angels in America.” The vote on Monday evening came after a CUNY trustee said that Mr. Kushner had disparaged the State of Israel in past comments, a characterization that the writer attacked on Wednesday.

Read more.

FIRE VP in Chicago to Discuss Academic Freedom, Free Speech

Friday, May 6th, 2011

FIRE's Vice President of Programs, Adam Kissel, will be visiting the University of Chicago on Monday for a discussion on academic freedom and free speech on campus. The talk will be hosted by the ACLUofC and the University Republicans.

Discussion on Academic Freedom & Free Speech at the U of C
Monday, May 9, 6:30 p.m.
Stuart 105
Free Deep Dish Pizza from Giordano's

Check the FIRE Calendar of Events or the FIRE Speakers Bureau Google map for up-to-date information on all upcoming events. To invite a FIRE speaker to your school for Fall 2011, click here.

Activist Arrested for ‘Subversion’

Thursday, May 5th, 2011
A Chinese activist had investigated the death of a land-rights champion believed to have been murdered.

Criminal Justice Blog Moves to Dismiss Sham Copyright Troll Lawsuit

Thursday, May 5th, 2011

Las Vegas - The publisher of a criminal justice blog that provides resources for difficult-to-prosecute murder cases has asked a judge to dismiss the sham infringement lawsuit filed against him by copyright troll Righthaven LLC. Recently unsealed documents show that Righthaven is not the true owner of the copyright of the news article that is the basis for the lawsuit.

The Electronic Frontier Foundation (EFF) and the law firm of Wilson Sonsini Goodrich & Rosati are representing former prosecutor Thomas DiBiase. In this case, as in many others, Righthaven sued over the use of a Las Vegas Review-Journal article, claiming that the newspaper had transferred the copyright to Righthaven before filing the suit. However, a critical document unearthed by EFF in another Righthaven lawsuit shows that the copyright assignment was a sham, and that Righthaven was merely agreeing to undertake the lawsuit at its own expense in exchange for a cut of the recovery.

"Copyright law demands that only the owner of exclusive rights under the Copyright Act can enforce copyrights -- someone with some skin in the game," said EFF Senior Staff Attorney Kurt Opsahl. "But the Strategic Alliance Agreement between Righthaven and the Review-Journal shows that the newspaper ...

FBI Chastised by Court for Lying About Existence of Surveillance Records

Wednesday, May 4th, 2011

An order last week from the U.S. District Court for the Central District of California has revealed the FBI lied to the court about the existence of records requested under the Freedom of Information Act (FOIA), taking the position that FOIA allows it to withhold information from the court whenever it thinks this is in the interest of national security. Using the strongest possible language, the court disagreed: “The Government cannot, under any circumstance, affirmatively mislead the Court.” Islamic Shura Council of S. Cal. v. FBI (“Shura Council I”), No. 07-1088, 3 (C.D. Cal. April 27, 2011) (emphasis added).

This case may prove relevant in EFF’s ongoing FOIA litigation against the FBI. As discussed further below, one of the issues in Shura Council was the FBI’s extensive and improper use of “outside the scope” redactions. The agency has also used these heavily in at least one of our current cases — in areas where it is highly unlikely the material blocked out is actually outside the scope of our FOIA request. (see example to the left from our case seeking records on the government’s push to expand federal surveillance laws). We’ll be writing more about that case ...

Amazon Pulls Yaoi Manga From Kindle Store

Wednesday, May 4th, 2011

Manga is facing censorship again — Amazon recently removed a number of yaoi manga titles from their Kindle store. CBR’s Robot 6 reports on the issue here.

Banned Books Week grant deadline May 13th!

Wednesday, May 4th, 2011

The deadline to submit an application for the Judith Krug Memorial Fund Banned Books Week event grants is May 13, 2011. Four grants in the amount of $2,500 and $1,000 will be given to organizations in support of “Read-Outs” or other activities that celebrate Banned Books Week (Sept. 24 – Oct. 1, 2011).

For more information on the grant, including last year’s recipients, please click here. For more information on Banned Books Week, please click here.

The Judith Krug Memorial Fund is sponsored by the Freedom to Read Foundation.

Medical Justice: Stifling Speech of Patients with a Touch of "Privacy Blackmail"

Wednesday, May 4th, 2011

Whether you’re buying a car, looking for a nearby cafe or hunting for deals on sneakers, the Internet – and especially crowd-sourced online review sites like Yelp – can help you decide which businesses to patronize. But one company is taking away users’ voices when it comes to reviewing medical services. Medical Justice, started in 2002, is a member-based service for physicians that works to restrict unflattering reviews of participating doctors. Patients who go to these doctors sign a contract that assigns, in advance, the copyright in any online review to the physician being reviewed. A doctor who doesn’t like an unflattering post can then use a copyright infringement claim to have the post removed.

We’ve have long opposed these and similar efforts to misuse copyright to stifle speech. And we’re very glad that a new site, called Doctored Reviews, is explaining in detail why the business model promoted by Medical Justice is bad for patients, bad for doctors, bad for review sites – and especially bad for online free speech. As Doctored Reviews points out:

Imagine if other companies used similar contracts. Before you get a haircut, before you buy a six-pack of soda at the local ...

Curse a cop, face arrest, take a pounding – without legal redress

Wednesday, May 4th, 2011

Cursing a cop in Virginia may be hazardous to your health and the legal system may not afford you any legal redress.

Instead the police can arrest you under an anti-cursing law that is probably unconstitutional. That appears to be the lesson from a recent federal appeals court case arising out of Prince William County.

Read more.

Robust Debate on Bin Laden’s Death

Tuesday, May 3rd, 2011
An official Chinese newspaper calls the terror mastermind 'Satan' while some netizens call him a hero.

IFRT Monthly Video Series: Jonathan Bloom

Tuesday, May 3rd, 2011

The Intellectual Freedom Round Table (IFRT) presents the ninth in its monthly video series of interviews. This month’s video features Jonathan Bloom, Counsel at Weil, Gotshal & Manges LLP, and member of the Board of Trustees of the Freedom to Read Foundation — speaking about our First Amendment Freedoms.

If you have any topics you would like to see featured in upcoming videos, please contact IFRT chair Loida Garcia-Febo directly at

FIRE Receives Response from UMass: Code Changes Forthcoming?

Tuesday, May 3rd, 2011

Last week here on The Torch, FIRE's Samantha Harris discussed our concerns about proposed changes (.PDF) to the University of Massachusetts Amherst's (UMass') Code of Student Conduct. These concerns, detailed in an urgent letter FIRE sent UMass on April 22, focused on the broad bans on protected speech presented by the revisions.

Samantha detailed our problems with UMass' proposed changes:

First, a proposed introduction to the Code sets forth a set of institutional values including "civility," "social justice," and "social responsibility," and states that once students "choose to accept admission," they are expected to "uphold the above stated values." As FIRE pointed out in our letter, a public university categorically may not, consistent with the First Amendment, "require students to adopt a specific set of ideological values as a condition of membership in the university community." As the Supreme Court famously held in West Virginia State Board of Education v. Barnette, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."


Happy World Press Freedom Day!

Tuesday, May 3rd, 2011

As we reported a few weeks ago, today kicks off the first-ever U.S.-hosted World Press Freedom Day, an event established in 1993 to commemorate the underlying principles of press freedom and draw attention to the hurdles journalists often face to keep the public informed.

In anticipation of the event, the Student Press Law Center (SPLC), one of our frequent allies in defending free speech on campus, issued an open letter to President Obama that appeared in The Washington Post on April 15 as a half-page advertisement (page A21). FIRE is proud to be one of the signatories. 

World Press Freedom Day is also an opportunity to acknowledge the areas in which America's free expression freedoms fall short and how they can be improved to fully respect the First Amendment.

The letter, signed by an impressive coalition of 38 different free expression and journalism organizations, asks President Obama and his administration to

publicly acknowledge the unfinished work of press freedom in our own nation, to denounce the shameful practice of stifling candid discussion of school issues, and to ensure that this World Press Freedom Day concludes with a global commitment to protect the rights of all journalists, even the youngest.


CBLDF Celebrates World Press Freedom Day

Tuesday, May 3rd, 2011

Thanks to the First Amendment, I’m free to write these words — and you’re free to read them. —Gene Policinski, First Amendment Center

The First Amendment Center took a moment to recognize the freedom of the press that makes the United States so unique, citing that 84% of the nearly 7 billion people in the world do not share in this freedom. You can read their article about World Press Freedom Day here.

World Press Freedom Day takes place each year on May 3. It was started in 1993 by the UN General Assembly, with the following in mind:

[World Press Freedom Day] serves as an occasion to inform citizens of violations of press freedom — a reminder that in dozens of countries around the world, publications are censored, fined, suspended and closed down, while journalists, editors and publishers are harassed, attacked, detained and even murdered.

CBLDF will be taking a moment to enjoy the work of our favorite political cartoonists and journalists today, all the while keeping in mind that the freedom our press enjoys does not extend to the rest of the world.

You can learn more about World Press Freedom Day here.

EFF to Council of Europe: Live Up to Your Internet Rights Commitments

Tuesday, May 3rd, 2011

EFF has been monitoring the Council of Europe (CoE) and its Internet policymaking process to ensure that they live up to their human rights commitments. A few weeks ago, we submitted detailed comments to the CoE’s Expert Committee on New Media’s draft recommendation and guidelines for social networking services. The Council of Europe is one of the most influential inter-governmental organizations shaping Internet policy. The Strasbourg-based organization is comprised of 47 Member States (more member countries than the total number of countries of the European Union) and its actions can have influence well beyond Europe’s borders. The CoE is particularly important in guiding international law—for better or worse. Its treaties have teeth and are legally enforceable. Its soft laws, commitments made by member countries that are not legally binding, create pressure on companies and governments to comply with their Internet recommendations.

The Council of Europe’s track record on Internet privacy and human rights is mixed. On one hand, the CoE adopted the landmark 1980 Privacy Convention, the first legally binding privacy treaty. It has also adopted a declaration upholding anonymity on the Internet as a necessary component of free expression and a bulwark against government surveillance. On the other hand, ...

China Has ‘Highly Repressive’ Press: Poll

Monday, May 2nd, 2011
Asia suffers a modest decline in an annual media freedom survey.

Speech Code of the Month: Montclair State University

Monday, May 2nd, 2011

FIRE announces its Speech Code of the Month for May 2011: Montclair State University in New Jersey.

Since the death of Rutgers University student Tyler Clementi—who committed suicide last fall after two students secretly streamed video of him engaging in sexual activity with a man—universities have come under a great deal of pressure to address instances of "bullying" on campus, and to address it quickly. As we have said on numerous occasions, universities need not infringe on student speech rights in order to address situations like Tyler Clementi's sad case: Clementi was the victim of criminal conduct already prohibited both by law and by existing policy at (almost certainly) every university in the country. (One need not be a legal expert to realize that surreptitiously broadcasting someone else's sexual encounter on the Internet is wrong.) Indeed, Clementi's roommate was indicted by a grand jury in April on 15 criminal counts for his actions. But universities' rush to get out in front of this issue is leading to the enactment of policies that are sloppily drafted and raise serious free speech issues.

For example, Montclair State University recently amended the definition of "harassment" in its University Code of Conduct (.pdf) to ...

Speaking Freely: Latest in essay series examines “The First Amendment and the Fallacy of the Public’s Airwaves”

Monday, May 2nd, 2011

The concept that the public owns the airwaves – particularly as it concerns the authority and mission of the FCC – is “a mischievous notion that has been misused as a rationalization for government regulation,” argues veteran communications attorney Erwin  G. Krasnow in a new Speaking Freely opinion paper released today.

“Indeed, the public-ownership notion is the main reason for broadcasting’s second-class status under the First Amendment,” Krasnow states.  It is time for the FCC to renounce this “discredited concept,” he urges.

Krasnow says it is also time to bury the scarcity rationale, citing a 2006 FCC Media Bureau paper that found the rationale invalid “based on fundamental misunderstandings of physics and economics, efficient resource allocation, and technology.”

The combination of public ownership and scarcity has been the underlying reason for applying a public-interest standard to broadcast regulation.  It’s time to replace that content regulation with a public-interest standard based on minimally regulated marketplace forces, Krasnow states.

Krasnow’s paper, “The  First Amendment and the Fallacy of the Public’s Airwaves,” is the latest in the Speaking Freely series published jointly by The Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va., and The Media Institute in Arlington, Va.


College Students Defy Free Speech Restrictions to Celebrate Death of Bin Laden

Monday, May 2nd, 2011

The announcement late last evening that U.S. forces had killed Osama bin Laden in Pakistan inspired celebrations outside the White House, in New York City, and on a number of college campuses. Spontaneous gatherings in response to major eventssuch as beginning or ending a war, an assassination, a heinous campus crimeare natural and to be expected. Unfortunately, many colleges maintain "free speech zones" and other restrictions on demonstrations that ban students from spontaneous protests. Last night, students demonstrated anyway.

Considering the importance of the event, it's not surprising that police on some campuses put aside the rules in order to "let the large crowd 'run its course,'" as at Penn State. At Iowa State, the large crowd even moved from place to place and became a parade, but according to Iowa State Daily Editor in Chief Jessie Opoien, the police merely watched or filmed: "Police officer taping celebration told us it's all ok as long as everyone stays safe."

Sounds like a typically American demonstration, right? The trouble is, Penn State and Iowa State maintain "free speech zone" policies that tell students such spontaneous demonstrations are simply not acceptable. Penn State's policy is here. ...

Muzzle Update: Experts debate Smithsonian’s response to critics

Sunday, May 1st, 2011

Among the recipients of the 2011 Jefferson Muzzles was Secretary of the Smithsonian Institution G. Wayne Clough.  The following article by Bret Zongker of the Associated Press, posted 04/27/2011, concerns the incident for which Secretary Clough was awarded the dubious honor of a Muzzle.
WASHINGTON‹ Museum experts are weighing in on a censorship controversy at the
Smithsonian Institution and what it means for publicly funded museums at a
time when arts funding has been targeted for deep budget cuts.

At a symposium Tuesday night and Wednesday, the Smithsonian hosted many
curators who objected to the world’s largest museum complex bowing to
political pressure last fall and removing a video from the National Portrait
Gallery’s exhibit “Hide/Seek: Difference and Desire in American

It was the first major exhibit to explore gay themes in art history. About a
month after it opened, and shortly after the 2010 election drew Republicans
into power in Congress, the exhibit drew complaints from conservative groups
over a video that depicted ants crawling on a crucifix. It had been created
by the late artist David Wojnarowicz, who was gay and died of AIDS.

Smithsonian Secretary Wayne Clough had the video removed when complaints
from the Catholic League drew threats ...

New FBI Documents Provide Details on Government’s Surveillance Spyware

Friday, April 29th, 2011

EFF recently received documents from the FBI that reveal details about the depth of the agency's electronic surveillance capabilities and call into question the FBI's controversial effort to push Congress to expand the Communications Assistance to Law Enforcement Act (CALEA) for greater access to communications data. The documents we received were sent to us in response to a Freedom of Information Act (FOIA) request we filed back in 2007 after Wired reported on evidence that the FBI was able to use “secret spyware” to track the source of e-mailed bomb threats against a Washington state high school. The documents discuss a tool called a "web bug" or a "Computer and Internet Protocol Address Verifier" (CIPAV),1 which seems to have been in use since at least 2001.2

What is CIPAV and How Does It Work?
The documents discuss technology that, when installed on a target's computer, allows the FBI to collect the following information:

  • IP Address
  • Media Access Control (MAC) address
  • "Browser environment variables"
  • Open communication ports
  • List of the programs running
  • Operating system type, version, and serial number
  • Browser type and version
  • Language encoding
  • The URL that the target computer was previously connected to
  • Registered computer ...

This Week in the News: A Whistleblowing Professor and the Campus SaVE Act

Friday, April 29th, 2011

FIRE has continued assisting Dr. James Enstrom, the whistleblowing University of California, Los Angeles (UCLA) scientist and professor who is fighting for his job after exposing serious problems involving the California Air Resources Board. Over at the Cato @ Liberty blog,  Ilya Shapiro (a Senior Fellow in Constitutional Studies for the Cato Institute and also the Editor-in-Chief of the Cato Supreme Court Review) has brought even more attention (including a link to's video on this debacle of justice) to this ongoing scandal at UCLA.

In The Atlantic, FIRE Board of Advisors member Wendy Kaminer took on the propsed federal "Campus SaVE Act," which would require colleges to lower the standard of evidence for sexual crimes to a "preponderance of the evidence" standard that criminal courts may not use even for the simplest misdemeanors, while Will called into question the bill's finding that most colleges do not educate about sexual violence.

Will is also quoted speaking out against the Tyler Clementi Higher Education Anti-Harassment Act's lack of free speech protections in an article by Mary Beth Marklein of USA Today. Elsewhere, FIRE Co-founder and Chairman Harvey Silverglate's most recent essay for the Forbes website discussed how ...

In Memoriam: Professor Keith Aoki

Friday, April 29th, 2011

Like so many others, we were stunned to learn that law professor, cartoonist, copyfighter and digital rights stalwart Professor Keith Aoki passed away earlier this week. Keith, who started at the University of Oregon then moved to U.C. Davis, was a longtime friend to EFF and one of the law professors we came to count on in our many battles for your rights online.

Keith will likely be most remembered, outside academia, for the brilliant cartoons he drew for Bound by Law, his project with James Boyle and Jennifer Jenkins.

But we knew him much earlier. In 1997 he co-authored a brief in support of EFF in Bernstein v. Department of Justice (Keith isn't mentioned in the web version of the brief, but he is in the opinion). Keith supported us again in the 2600 case and the Blizzard v. Bnetd case and of course before the U.S. Supreme Court in the MGM v. Grokster case. There were likely others as well.

When it came to fighting for digital freedom, Keith was one of us. He will be sorely missed.

At Smithsonian Forum, Hide/Seek Curators Fiercely Defend Controversial Exhibit

Thursday, April 28th, 2011

On Tuesday night, I sat in on the first session of the Smithsonian’s two-day forum on what it called “Flashpoints and Faultlines: Museum Curation and Controversy.” The forum, despite its somewhat vague title, centered on the particular controversy of curation that it was organized to respond to: the decision by Smithsonian top brass to remove a work of art from a National Portrait Gallery exhibit after the exhibit came under fire from right-wing culture warriors.

Tuesday night’s panels didn’t do much to reconcile those who opposed the Smithsonian’s decision to cut David Wojnarowicz’s A Fire in My Belly from the Portrait Gallery’s Hide/Seek exhibit and those who thought it was a necessary step to tamp down a damaging controversy. But it did provide an outlet those who had been caught up in the controversy to air their grievances – albeit too late to change any decisions.

The most passionate and interesting remarks came from the two co-curators of the Hide/Seek show, whose close-up view of the mechanics of a right-wing smear was fascinating, and led them to be unapologetically clear about what had happened to lead to the Smithsonian’s censorship of its own groundbreaking exhibit.

David Ward and Jeff Katz ...

Lear, Vanden Heuvel, Gopnik, Bronson, Barrie and Keegan Discuss the Smithonian Censorship and the “New Culture Wars”

Thursday, April 28th, 2011

Earlier this month, PFAW held a panel discussion in New York to discuss the censorship of the Smithsonian’s Hide/Seek exhibit. PFAW founder Norman Lear, art critic Blake Gopnik, artist AA Bronson, PFAW president Michael Keegan, art museum director Dennis Barrie and journalist Katrina vanden Heuvel discussed the Smithsonian scandal and the return of the Right’s “culture wars.” You can watch videos of the discussion here:

Nun Beaten, Detained Over Protest

Thursday, April 28th, 2011
Chinese authorities refuse permission for a young Tibetan protester's family to see her in detention.

‘Washington Monthly’ Echoes Kaminer’s Warning on Proposed Campus Sex Crime Law

Thursday, April 28th, 2011

As we noted earlier, scholar and critic Wendy Kaminera member of FIRE's Board of Advisorspublished a forceful critique of the SaVE Act, a proposed federal law which would require colleges to lower the standard of evidence for prosecuting campus sex crimes, at The Atlantic.

Kaminer's piece caught the eye of Daniel Luzer, Web Editor at Washington Monthly and proprietor of its College Guide blog. Kaminer's piece made the same impact with him that it did with FIRE. Luzer notes, as Kaminer does, that the bill, while well-intentioned, could lead to a dangerously uneven playing field:

According to an article by Wendy Kaminer in the Atlantic, the bill is actually atrocious as far as actual legal rights are concerned. Perhaps the biggest problem here is that just being accused of sexual assault doesn't make you guilty of sexual assault. As Kaminer writes:

The SaVE Act implicitly assumes the guilt of students accused of sexual violence or stalking and ensures that guilt is fairly easy to establish. It requires schools to employ the lowest possible standard of proof - a preponderance of evidence - in disciplinary hearings.... former Department of Education official Hans Bader stresses ...

Victory for Freedom of Speech and Religious Liberty at Northern Illinois U; Political and Religious Organizations Finally Get Equal Treatment

Thursday, April 28th, 2011

After months of delay and pressure from FIRE, Northern Illinois University (NIU) has finally given political and religious organizations access to student activity fee funding. In 2010, NIU's Student Association brazenly flouted Supreme Court precedent by discriminating against all such groups, maintaining extensive double standards, and denying recognition altogether to NIU Students for Sensible Drug Policy (SSDP) on two separate occasions.

SSDP was first considered for recognition on October 24, 2010, as a "Social Justice, Advocacy, and Support" group because it advocates "that the War on Drugs is failing our generation and our society" and seeks "to reduce the harms caused by drug abuse and drug policies." After extensive inquiries into the specific nature of the group's viewpoint, the Student Association Senate denied recognition to SSDP but offered it a chance to be recognized as a "political" group, which would have rendered it ineligible for funding under the old policy.

On November 7, the Senate then issued hopelessly vague definitions of "political" and "religious" groups that guaranteed unconstitutional double standards and inexplicable decisions. For instance, Advocates for Choice, Campus Antiwar Network, Consumer Education Society, PAVE (Promoting Awareness, Victim Empowerment), Students for Life (NIU), Vegetarian Education Group, and Women's Rights Alliance ...

Clough Stands By Decision To Pull “A Fire In My Belly” From Hide/Seek

Thursday, April 28th, 2011
Despite concerns the Smithsonian’s Flashpoints and Faultlines forum would be a bland showcase designed to obscure the institution’s commitments to First Amendment principles instead of examining them, last night’s opening panels included direct criticism from the dais of Smithsonian Secretary Wayne Clough’s decision to censor David Wojnarowicz’s “A Fire In My Belly” from the Hide/Seek [...]

HIV-Infected Man Appeals Ruling

Thursday, April 28th, 2011
A local government in China turns down an applicant for a teaching job, saying teachers must be 'in good health.'

Have Deans ‘Given Way to Lawyers’ on Campus?

Thursday, April 28th, 2011
In the Wall Street Journal, William McGurn argues that college deans too often "have given way to lawyers" in the running of their schoolsreflecting FIRE Co-founder and Chairman Harvey Silverglate's online essay in Forbes about the increasing "risk management" mentality on America's campuses.

Why We Need An Open Wireless Movement

Wednesday, April 27th, 2011

If you sometimes find yourself needing an open wireless network in order to check your email from a car, a street corner, or a park, you may have noticed that they're getting harder to find.

Stories like the one over the weekend about a bunch of police breaking down an innocent man's door because he happened to leave his network open, as well as general fears about slow networks and online privacy, are convincing many people to password-lock their WiFi routers.

The gradual disappearance of open wireless networks is a tragedy of the commons, with a confusing twist of privacy and security debate. This essay explains why the progressive locking of wireless networks is harmful — for convenience, for privacy and for efficient use of the electromagnetic spectrum.

We will need a political and technological "Open Wireless Movement" to reverse the degradation of this indispensable component of the Internet's infrastructure. Part of the task will simply be reminding people that opening their WiFi is the socially responsible thing to do, and explaining that individuals who choose to do so can enjoy the same legal protections against liability as any other Internet access provider.1 Individuals, including Bruce Schneier and ...