New York Court Scores Over Oregon In Recent Email Privacy Opinions

Last week, two new district court opinions took opposing views on the question of whether the Fourth Amendment protects stored email. One of the cases easily adopted the prevailing view that the Constitution protects electronic communications, while the other ignored existing U.S. Supreme Court and Ninth Circuit precedent to find consumers have no expectation of privacy in messages stored with third parties. EFF will be watching these developments closely as we continue to press for email privacy rights in the Sixth Circuit Court of Appeals in U.S. v. Warshak and in other matters.

Email -- like letters, telephone calls or documents you keep in a rented locker -- should be fully protected by the Fourth Amendment. As with letters, calls or rented property, your expectation of privacy against the government does not weaken simply because you entrust the document to a third party for delivery or storage. Law enforcement needs a warrant to intercept your phone calls, even though they travel over wires owned by the phone company, or to search your storage locker or hotel room, even though the property owner has the right to enter in some circumstances. The same protections should and must apply to email. It matters not that a third party transports the messages (mail), that they are capable of interception (phone calls), or that they are kept on a third-party server (rented storage).

The government conceded Fourth Amendment protection in one of last week’s opinions and successfully fought against it in the other. In the New York case, United States v. Cioffi, the government wanted to search the defendant’s personal email account for messages showing that he and a confederate knew that they were misleading customers in a financial fraud scheme. The affidavit in support of the warrant asked for copies of messages related to the fraud offense but the warrant itself [more broadly]purported to give the agents permission to obtain all email
through a certain date. The government conceded that the e-mails were Fourth Amendment protected. The disputed issue was whether the warrant satisfied the constitutional requirement that it describe with particularity the place to be searched and the things to be seized. The court held that the warrant was overbroad because it authorized officers to obtain emails other than those for which there was probable cause, and therefore suppressed even the fraud-related messages that were discovered. This New York district court was right. The contents of electronic communications are protected by the Fourth Amendment, and that protection means law enforcement needs a valid warrant, not an obviously overbroad one, to search or seize the messages.

In contrast, the government in the Oregon case, In re: United States, successfully argued that you have no protectable Fourth Amendment rights in your email, at least in part because it is stored with third parties. Agents had applied for a warrant for email under the Stored Communications Act ("SCA"), but did not want to serve post-seizure notice of the return of the warrant on the account holders. After concluding that the SCA only required notice to the ISP, the court then asked whether the Fourth Amendment required notice on the account holder, or whether notice on the ISP was constitutionally adequate. While giving lip service to the idea that email is protected by the Fourth Amendment, the court nevertheless stated that a user has no protected expectation of privacy when she stores her messages with a third party. The court also pointed to email service privacy policies to assert that users are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and thus can be shared with the government "in appropriate circumstances".

In re: United States is wrongly decided. While supposedly starting from the (correct) assumption that the Fourth Amendment protects email, the court then concludes that one has no expectation of privacy in materials stored with a third party. Email uses a store-and-forward transmission protocol; the messages are always transmitted through third parties. Moreover, almost all consumer email is stored at some point with a third party, whether as long term backup or incident to transmission. Thus, the presumption the court says it adopts is essentially meaningless; only those few corporations and individuals that host their own email would be arguably entitled to any constitutional protection the Oregon court says it assumes applies.

The opinion is also contrary to binding Supreme Court and Ninth Circuit precedent. In the 1967 cases of Berger and Katz, the U.S. Supreme Court held that the Fourth Amendment strongly protects telephone calls even though they travel over wires owned by the telephone company, or can be intercepted with a listening device on the outside of a telephone booth. The Court confirmed protection for the contents of communications in Smith v. Maryland, when it distinguished Katz from its holding allowing warrantless collection of dialed telephone numbers from the phone company, since the contents of communications were still protected. The Ninth Circuit, in which the Oregon court resides, has further confirmed that the Fourth Amendment protects electronic communications as well as phone calls in Quon v. Arch Wireless. In that case, the Department of Justice argued exactly what it argued in In re United States -- that because email and text messages are stored by third parties with the practical ability to read them, senders and recipients have no expectation of privacy in those messages. The appellate court rejected that view, holding that text messages, and presumably emails, are like letters or packages, and are protected even though the shipper could open them.

The Oregon court also got the analysis of the effect of terms of service and acceptable use policies dead wrong. In Quon, the Ninth Circuit followed its prior ruling in United States v. Heckenkamp, which held that a student did not lose his reasonable expectation of privacy in information stored on his computer, despite a university policy that it could access his computer in limited circumstances while connected to the university’s network. Like hotel rooms or storage lockers, a limited right of access on the part of the facility owner does not defeat all expectation of privacy versus the government. Moreover, the Oregon court itself had to admit that users might expect government access – not in all circumstances, but only "in appropriate circumstances", a situation that users can reasonably expect would involve a warrant based on probable cause.

There is other foolishness in the Oregon opinion, including the hyper-technical assertion that when the government copies your email, they have not seized your data because you still have a copy, so the government collection does not “meaningfully interfere” with your "possessory interest".

What’s even more disturbing, the Ninth Circuit may not get an opportunity to correct the Oregon district court. Since In re United States involved an ex parte proceeding, as of yet there is no real party in interest to appeal the court clearly erroneous opinion. Only if someone gets charged with a crime, and if that defendant becomes aware that the evidence the government intends to use was obtained as a result of a seizure that did not comport with the Fourth Amendment, will there be an opportunity for the affected party to ask for appellate review. This is one reason why EFF’s practice serving as amicus to district courts considering the applicability of the Electronic Communications Privacy Act and the Fourth Amendment to cell phone tracking, email seizures and other pre-indictment investigative techniques is so important – we may have only one chance to get it right before the government barges in without proper cause or authorization.

For other legal analysis of U.S. v. Cioffi and In re United States, please read Orin Kerr's post on The Volokh Conspiracy or Venkat Balasubramani's assessment on Eric Goldman's blog.

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EFF Urges Court to Ensure Fairness in Google Book Search Amendment Process

EFF today led a coalition of authors, publishers, companies and nonprofit organizations in sending a letter to the judge overseeing the Google Book Search settlement urging the Court to ensure that those concerned about the settlement receive adequate notice of, and have sufficient time to study and comment on, any amended settlement agreement that Google, the Authors Guild, and the Association of American Publishers present.

Those following the twists and turns of the Google Book Search settlement will recall that the original Fairness Hearing scheduled for October 7, 2009, was put off because of what the Court called: "significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, non-profit organizations, and prominent authors and law professors." The Court received over 400 submissions about the settlement, including the EFF-led coalition of authors and publishers concerned about reader privacy, as well as significant concerns raised by the Department of Justice.

As a result, the parties have promised the Court that they will submit an amended settlement on November 9, 2009. Today's letter arises from the parties' discussions with the Court in which they have suggested that the amendments to the already complex agreement be subject to limited notice and ability to comment and a truncated schedule ending with a Fairness Hearing in late December or early November. It states: "We signatories raised different specific concerns and issues about this settlement from a number of different vantage points. We are united, however, in our concern that the parties' requests to limit notice and the time and scope of objections will be unfair to us and to other class members."

The Google Book Settlement is simply too important -- and too complex -- to be rushed through the court approval processes without sufficient opportunity for analysis and comment.

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Cook County Sheriff Loses Craigslist "Erotic Services" Ads Case

Yesterday, a federal court tossed a lawsuit against craigslist over erotic advertisements. In March, Cook County Sheriff Thomas Dart alleged that craigslist was liable for the illegal ads posted by its users in its "erotic services" (now "adult services") category. As craigslist argued in their motion for judgment on the pleadings, and as EFF and others pointed out at the time, Dart's complaint had virtually no chance of success because Section 230 of the Communications Decency Act plainly immunized Internet intermediaries like craigslist from civil liability for material posted by third parties.

On Tuesday, the District Court for the Northern District of Illinois agreed with craigslist, throwing out Dart's complaint in its entirety, confirming that Section 230 immunized craigslist from the allegation that it constituted a "public nuisance." The court made a number of important observations regarding the attempt to saddle craigslist with responsibility for the behavior of its users:

The phrase "adult," even in conjunction with "services," is not unlawful in and of itself nor does it necessarily call for unlawful content. ... The same is true of subcategories. Plaintiff is simply wrong when he insists that these terms are all synonyms for illegal sexual services.

While we accept as true for purposes of this motion plaintiff's allegation that users routinely flout Craigslist's guidelines, it is not because Craigslist has caused them to do so. Or if it has, it is only "in the sense that no one could post [unlawful content] if craigslist did not provide a forum." ... Section 230(c)(1) would serve little if any purpose if companies like Craigslist were found liable for "causing" or "inducing" users to post unlawful content in this fashion.

The fact that Craigslist also provides a word-search function does not change the analysis. The word-search function is a "neutral tool" that permits others to search for terms that they select in ads created by others. ... It does not cause or induce anyone to create, post, or search for illegal content.

Most succinctly, and highlighting the policy concerns behind the passage of CDA 230, the court noted:

Intermediaries are not culpable for "aiding and abetting" their customers who misuse their service to commit unlawful acts.

Meritless cases brought by law enforcement officers, amounting to little more than publicity stunts with little to no chance of success, do little to address the officers' underlying concerns. The problem of sex trafficking is indeed a serious one, as pointed out by both Dart and amicus Coalition Against Trafficking in Women, but as the court pointed out in a footnote, that fact "does not shed any light on the legal questions before us."

Service providers are not liable because Congress correctly understood that the soap box should not be held responsible for the speech of others. Just as phone companies are not liable for harassing phone calls, or email software providers for deceptive messages, online message boards like craigslist are in most instances not liable for their users' posts. It is not enough, as both Dart and South Carolina Attorney General Henry McMaster continue to demonstrate, to identify a problem and then stumble into court without a valid argument, pointing at the most prominent (although not legally culpable) target in sight. Hopefully, the District Court's decision will cause Dart, McMaster, and the dozens of other attorneys general who saw the craigslist pile-on as a cheap and easy way to score political points to think carefully before trying again in the future.

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Court Rules That Phones Ringing in Public Don't Infringe Copyright

As we reported in June, ASCAP believes that when your cell phone's musical ringtone sounds in a public place, you're infringing copyright. A federal court yesterday firmly rejected that argument, ruling that "when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly." This is exactly the outcome urged by EFF, Public Knowledge, and the Center for Democracy & Technology in an amicus brief filed in the case.

The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright. That's thanks to Section 110(4) of the Copyright Act, which exempts public performances undertaken "without any purpose of direct or indirect commercial advantage." In the words of the court, "customers do not play ringtones with any expectation of profit." This ruling should also protect consumers who roll down their car windows with the radio on, who take a radio to the beach, or who sing "Happy Birthday" to their children in a public park (remember, ASCAP once demanded royalties from Girl Scouts for singing around the camp fire!).

The court also found that cell phone carriers do not publicly perform when they download a ringtone to a phone (the carriers already pay 24 cents in royalties for the reproduction of the ringtone, but ASCAP was hoping to double dip by charging a public performance royalty on top of that). This is another important ruling, expanding on a 2007 ruling that also concluded that a download is not a public performance. The court reasoned that because the download was transmitted to just one person, it was not a "public" performance.

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It's My Browser, and I'll Auto-Click if I Want To

Free file hosting provider MediaFire seems to think that, when you follow a link to download a file from its service, it has the right to control your browser. This is yet another example of a web site owner forgetting that it's your computer, and it's none of their business how you choose to experience their web pages.

This latest spat involves SkipScreen, a Firefox plug-in that automates the process of downloading from free hosting sites like RapidShare, zShare, MegaUpload, and others (including, until recently, MediaFire). Some of these ad-supported download sites try to force downloaders to sit through a "waiting period" before revealing the actual download link— a "feature" that these sites doubtless tout to advertisers in order to get premium ad rates. SkipScreen automates this waiting-and-clicking for you. Simply put, it does nothing you couldn't accomplish just as well by hiring a human to browse for you.

MediaFire has responded by sending a lawyer letter to Mozilla, which hosts the SkipScreen plug-in, along with thousands of other Firefox add-ons. EFF has taken SkipScreen's creators as clients, and has sent a letter to Mozilla explaining why MediaFire doesn't have a leg to stand on.

Here's the short version: it's my browser, and I can ignore your ads if I want to.

MediaFire's arguments to the contrary are entirely misguided. First, they suggest that SkipScreen somehow lets users "steal bandwidth." That's wrong on the facts: SkipScreen just automates the exact process that the user would otherwise have to do themselves in order download a file. No "extra downloads," no additional bandwidth for MediaFire. Second, MediaFire argues that the use of SkipScreen violates MediaFire's "acceptable use policy." That's wrong on the law: users who follow a link to a MediaFire download never click-through or otherwise agree to any "acceptable use policy," so there's no contract here that prohibits a user from using whatever browser she likes (including whatever plug-ins she likes) to download a file.

Sure, MediaFire probably would prefer that we all sit, transfixed, while they display ads for us, just like certain Hollywood executives wish we would never leave the couch or hit FFWD when commercials run during our favorite TV shows, and certain websites wish they could ban Firefox ad-blockers. Fortunately, there's nothing in the law that says that by simply visiting a website, I give up the right to control my desktop.

OCTOBER 9, 2009 UPDATE: Mozilla has announced it will continue to support our client SkipScreen in its add-on library. Good news for browser users everywhere!

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In re Bilski: The Supreme Court Takes on Business Method Patents

Today, EFF joined an amicus brief in Bilski v. Kappos, a closely-watched case that will be decided by the Supreme Court later this year. At stake is whether the Supreme Court will limit the patentability of "business methods."

Just over ten years ago, the Federal Circuit Court of Appeals handed down State Street Bank & Trust Co. v. Signature Financial Group, opening the doors to patents for novel methods of doing business. That ruling knocked patent law loose from its historical moorings and injected patents into business areas where they were neither needed nor wanted. The results have been nothing short of disastrous: a flood of patent applications for services like arbitration, tax-planning, legal counseling, charity fundraising, and even novel-writing.

Later this year, the Supreme Court will have the opportunity to resurrect sensible limits on patentability. EFF believes that patents should only be granted for technological processes. Congress never intended the strong protections of the patent monopoly to be available for mere services and methods of doing business. There is already plenty of incentive for innovation in those areas without the need for patents, driven by a variety of forces, such as establishing and maintaining first-mover advantages and establishing reputational capital that cannot be "stolen" by competitors.

It's always worth remembering that granting patent protection where it is not needed comes at a steep price, making it difficult for new players to enter the market. Moreover, expanding patents to business methods has tied up PTO and judicial resources that could be better spent on the kinds of patents that have historically been at the heart of the patent system.

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You Bought It, You Own It: MDY v. Blizzard Appealed

When you buy World of Warcraft (WoW) in a retail box, do you own the copy of the software you bought? That's the critical legal question facing the Ninth Circuit Court of Appeals in a pending appeal in MDY v. Blizzard, and the question that Public Knowledge took on in an excellent amicus brief filed with the court earlier this week.

If you own your software, you have the right to resell it and the right to make copies and adaptations as necessary to use it. If you don't, well, then you face a possible copyright lawsuit for transgressing any limitations the vendor puts in the license agreement.

The case (which we've covered previously) pits Blizzard, the maker of WoW, against MDY, the maker of a program called Glider that lets you play WoW on "auto-pilot" (what Blizzard calls a "bot"). Blizzard won in the district court, successfully arguing that WoW purchasers do not "own" their software, but merely "license" it. On this view, Blizzard owns every WoW DVD ever shipped for all eternity (there's a Lich King joke in here somewhere), and may be able to use copyright law to punish WoW players who use the software in any manner not authorized by the "license" (like using Glider). The district court agreed, and now MDY has appealed.

Ownership matters, because otherwise Blizzard and other software vendors can wipe away important consumer rights with legalese contained in license agreements. For example, in Section 117 of the Copyright Act, Congress gave owners of computer software the right to use their legitimately purchased software without having to rely on permissions in license agreements. Blizzard and other software vendors are arguing that customers are not owners, but mere licensees, in an effort to eliminate our rights under Section 117.

This "owner-versus-licensee" trick is not just an end-run on Section 117, it's inconsistent with the law in other areas—the courts and Congress have long rejected efforts by copyright and patent owners to impose all kinds of post-sale use restrictions on books, patented machines, and compact discs. Why should software be different? Just as with those other copyrighted works, if you bought the disc that the software comes on outright (as opposed to leasing it, for example), you should get the privileges of an owner (i.e., the right to resell and the right to make copies and adaptations as necessary to use software).

In short, Blizzard's legal arguments here are all about using copyright law to take away consumers' rights in the software they purchased. We hope the Ninth Circuit rejects this attemped end-run around Section 117, for the benefit of all software users.

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UMG v. Veoh: Big Win for Online Video

Earlier this week, a federal court in Los Angeles ruled that Veoh, an online video hosting service similar to YouTube, qualifies for a DMCA safe harbor that protects the service from monetary damages for copyright infringements committed by its users. The plaintiff, Universal Music Group (UMG), alleged that many videos uploaded to Veoh included copyrighted sound recordings owned by UMG.

The ruling represents a big win for all online services that host "user-generated content," including other video hosting sites (like YouTube), music lockering sites (like MP3tunes.com), photo hosting sites (like Flickr), and document-hosting sites (like Scribd). The Court rejected a variety of theories that copyright owners have been pressing in several cases. Professor Eric Goldman at Santa Clara Law School has a complete analysis, but highlights include:

• "[T]he DMCA notification procedures place the burden of policing copyright infringement -- identifying the potentially infringing material and adequately documenting infringement -- squarely on the owners of the copyright." (Quoting the 2007 Ninth Circuit ruling in Perfect 10 v. CCBill.)
• "[I]t takes willful ignorance of readily apparent infringement to find a 'red flag'..." and "general awareness of infringement, without more" does not constitute a "red flag". (Ignoring so-called "red flags" of infringement can disqualify a service provider from the safe harbor in certain circumstances.)
• Sending a list of recording artists to a service provider does not create an obligation on the part of the service provider to police the site for materials featuring those artists.
• "UMG has not established that the DMCA imposes an obligation on a service provider to implement filtering technology at all, let alone technology from the copyright holder's preferred vendor or on the copyright holder's desired timeline."
• "UMG argues that Veoh could have searched its index of data for the names of artists whose videos were identified in the RIAA notices ... [but] the DMCA does not place the burden of ferreting out infringement on the service provider."
• Courts must apply "a different test for 'right and ability to control' than it applied in evaluating the plaintiff's claim for common law vicarious infringement." (Service providers can be disqualified from the safe harbor if they have both a right and ability to control infringing activities and derive a direct financial benefit from those activities.)

In making these rulings, the court simply applied existing DMCA precedents; nothing here is new law. But by applying these precedents to an online video hosting service for the first time, the ruling goes a long way toward clarifying the rules that apply to those sites. Although this is just one district court opinion, and UMG is likely to appeal to the Ninth Circuit, the ruling is very good news for many "Web 2.0" companies that are facing lawsuits or threats of lawsuits from copyright owners.

One final note: while I agree with much of Prof. Goldman's analysis, I disagree with his view that this ruling leaves an "ambiguity" about whether the DMCA safe harbors apply to all forms of copyright infringement liability (direct, contributory, and vicarious). On this point, the governing legislative history is crystal clear. According to the Conference Committee Report (H. Rep. 105-796 at page 73, the very last word from Congress on what they meant to be doing with the statutory language that became law):

"The limitations in subsections (a) through (d) protect qualifying service providers from liability for all monetary relief for direct, vicarious and contributory infringement."

Nothing ambiguous about that.

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Ninth Circuit Holds Disloyal Computer Use Is Not A Crime

Are employees who use their workplace computers contrary to the interests of their employers criminals under the Computer Fraud and Abuse Act? Yesterday, the Ninth Circuit Court of Appeals said disloyal keyboarding is not a crime in LVRC Holdings v. Brekka. In Brekka, the defendant emailed himself client files while working for the plaintiff. When the employment relationship ended, the plaintiff claimed that the defendant sent himself those files to benefit his competing business. The Ninth Circuit held that an employee’s mere breach of fiduciary duty is not “unauthorized access” under the CFAA. The decision is a welcome restraint on the federal computer crime statute, which has been overused to go after not only disloyal employees, but also people who disobey website terms of service and companies that collect information from publicly accessible websites when the owner wishes they would not.

Brekka holds that a person uses a computer “without authorization” when she has not received permission to use the computer for any purpose, or when the employer has rescinded permission to access the computer and she uses the computer anyway. Similarly, a person who is authorized to use a computer does not exceed authorization simply by acting contrary to the computer owner’s interest, but only by obtaining or altering information in the computer that she is not entitled to obtain or alter.

The Brekka opinion is in line with the more recent and better line of district court cases that have rejected a “thought crime” interpretation of the CFAA where the employee’s mental state determines whether she was authorized or not. Brekka says that neither the statutory language nor the canons of criminal law allow such a broad reading that leaves people uncertain of when this criminal statute would apply.

The opinion puts the Ninth Circuit at odds, however, with an older Seventh Circuit opinion in International Airport Centers v. Citrin, written by the well-known Judge Posner. Brekka and Citrin are the only appellate court decisions on the question of whether a breach of loyalty makes computer use criminal, but there’s now a circuit split. It will be interesting to see whether the plaintiffs in Brekka ask the Supreme Court to review the matter. For now, Brekka is solidly in line with current jurisprudence giving a proper, narrower scope to the CFAA.

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Judge Rules Against RealDVD

UPDATE: Just one day after Judge Patel's ruling against RealDVD, a California appeals court has ruled against Kaleidescape, reversing the lower court and sending that case back for a fresh determination of whether Kaleidescape violated the terms of the DVD-CCA license. More bad news for innovators who want to bring legitimate consumers DVD jukebox products.

Judge Patel (who also handled Napster and Bernstein cases) has granted a preliminary injunction in favor of the major motion picture studios and DVD-CCA in their legal battle with Real Networks over its RealDVD products.

The case involves the legality of two products intended to allow DVD owners to make digital copies onto hard drives for later playback. One product, which Real briefly offered until being hit with a temporary restraining order in November 2008, was software intended for use on a personal computer. The second, which never made it out of prototype, was a "video jukebox" that combined DVD player and a hard drive -- what Real hoped would be a sub-$300 competitor for the fantastic (and fantastically expensive) Kaleidescape media server.

Of course, courts have ruled against DVD rippers before (see, e.g., DeCSS and DVD X Copy). But unlike those situations, both Kaleidescape and Real first obtained licenses from DVD-CCA, the entity that administers the keys that decrypt DVDs, believing that those licenses could be read to permit DVD copying. Sued by DVD-CCA in state court for breach of contract, Kaleidescape won (the ruling is pending on appeal). Sued in federal court for both breach of contract and violating the DMCA's ban on trafficking in circumvention tools, Real lost (Judge Patel barely mentions the Kaleidescape case, dismissing it as different facts and different parties). Judge Patel found that the DVD-CCA license clearly meant to forbid the making of permanent digital copies. And since Real was operating beyond the scope of its license, the court concluded that Real was effectively in the same position as the makers of unlicensed DVD rippers -- distributing a tool that was designed to circumvent the encryption on DVDs without the authority of the movie studios.

The heart of Judge Patel's ruling is her interpretation of the DVD-CCA license agreement, and since large portions of those agreements remain confidential, it is difficult to evaluate the merits of her reasoning. However, she does make the troubling suggestions that fair use is never a defense when you circumvent an "access control" like encryption on DVDs. She also suggests that irreparable harm can be presumed whenever copyright infringement or a DMCA violation is likely, something that runs afoul of the Supreme Court's 2006 ruling in eBay v. MercExchange, which rejected these automatic presumptions in intellectual property cases. The ruling also represents the first time that a court has recognized two newer DVD anti-copy systems, RipGuard and ARccOS, as protected by the DMCA.

Real will likely appeal this ruling. Unfortunately, given the pace of the federal appeals process, this means that the RealDVD products will likely stay off the market for at least a year. And whatever the outcome of that appeal, this ruling sends a chilling message to any technology innovator interested in delivering new products that interact with the DVDs you own. At the same time, Judge Patel's ruling is not likely to make any dent in the widespread availability of free, easy to use, unauthorized DVD rippers like Handbrake, Mac the Ripper, and DVD Shrink.

In other words, as we've said before, this case has nothing to do with "piracy," and everything to do with Hollywood using the DMCA to control the pace and nature of innovation for DVDs, to the detriment of those who legitimately buy their DVDs.

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