EFF: FBI Director Wray is Wrong About Section 702 Surveillance

FBI Director Wray is Wrong About Section 702 Surveillance

Newly-minted FBI Director Christopher Wray threw out several justifications for the continued, warrantless government search of American communications. He’s wrong on all accounts.                                               

In a presentation hosted by The Heritage Foundation, Wray warned of a metaphorical policy “wall” that, more than 15 years ago, stood between the U.S. government’s multiple intelligence-gathering agencies. That wall prevented quick data sharing, he said. It prevented quick “dot-connecting” to match threats to actors, he said. And, he said, it partly prevented the U.S. from stopping the September 11 attacks.

“When people, now, sit back and say, ‘Three thousand people died on 9/11, how could the U.S. government let this happen?’” Wray said. “And one of the answers is, well, they had this wall.”                                                                       

Wray is concerned with the potential expiration of the one of the government’s most powerful surveillance tools. It’s called Section 702 of the FISA Amendments Act and it allows the NSA to collect emails, browser history and chat logs of Americans. Section 702 also allows other agencies, like the FBI, to search through that data without a warrant. Those searches are called “backdoor searches.”

Congress is considering bills with limitations to backdoor searches—including one bill that we have analyzed—and Wray is against that. Section 702, Wray claimed, doesn’t need limitations, or as he called it, a “self-inflicted wound.” According to Wray, Section 702 is Constitutional, has broad government oversight, and keeps Americans safe.

Let’s see where he’s wrong.


“Section 702 is Constitutional, lawful, [and] consistent with the Fourth Amendment,” Director Wray said. “Every court to consider the 702 program, including the Ninth Circuit, has found that.”

The chasm between Wray’s words and his interpretation is enormous. Have courts “considered” Section 702, as Wray described? Yes. Have any decided Section 702’s constitutionality? Absolutely not.

U.S. courts have delivered opinions in lawsuits involving data collected under Section 702, but no single court has delivered an opinion specifically on the constitutionality of Section 702. It’s an issue that EFF is currently fighting, in our years-long lawsuit Jewel v. NSA.

When Wray mentions the Ninth Circuit, he is likely referencing a 2016 decision by the U.S. Court of Appeals for the Ninth Circuit. In the opinion for USA v. Mohamed Osman Mohamud, the appeals court ruled that, based on the very specific evidence of the lawsuit, data collected under Section 702 did not violate a U.S. person’s Fourth Amendment rights. But the judge explicitly wrote that this lawsuit did not involve some of the more “complex statutory and constitutional issues” potentially raised by Section 702.

Notably, the judge wrote that the Mohamud case did not involve “the retention and querying of incidentally collected communications.” That’s exactly what we mean when we talk about “backdoor searches.”

Wray is mischaracterizing the court’s opinion. He is wrong.

Government Oversight

“[Section 702] is subject to rigorous oversight,” Wray said. “Oversight, by not just one, not just two, but all three branches of government.”

Wray’s comments again are disingenuous.

U.S. Senators have tried to get clear answers from intelligence agency directors about Section 702 collection. Many times, they have been stonewalled.

When Senator Ron Wyden (D-Oregon) asked former Director of National Intelligence James Clapper: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

“No, sir,” Clapper said. “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”

Months later, defense contractor Edward Snowden confirmed that the NSA does indeed collect data on Americans. Clapper clarified his statement: he gave the “least untruthful” answer he could. If intelligence agencies, and their directors, cannot provide honest answers about Section 702, then meaningful Congressional oversight is a myth.

As for judicial oversight, the court that approves warrants under Section 702—known as the Foreign Intelligence Surveillance Court—has rebuked the NSA in multiple opinions. A chart of Section 702 compliance violations, with accompanying court opinions, can be found here.

While Section 702 is subject to government oversight, it doesn’t look like the NSA pays much attention.

Finally, there can be no meaningful public oversight so long as we are kept in the dark. FISC opinions are not, by default, made public. Revelations to the press are denied. Even negotiations to upcoming bills are made behind closed doors.

American Safety

The safety and well-being of Americans is paramount, and tools that help provide that safety are clearly important. But in his remarks, Wray relied on familiar scare tactics to create political leverage. Unwilling to explain Section 702 success stories, Wray instead relied on the hypothetical. He asked What If?

He conjured hypothetical mass shootings and lone gunmen. He employed the idea of a stranger taking pictures of a bridge at night; another buying suspicious supplies at a hardware store. He imagined a high schooler reporting worrying behavior of an ex-boyfriend. He invoked the specters of would-be victims.

In all these situations, Wray’s position was clear: Section 702 prevents this chaos. Do not challenge it, he begged.

“Any restriction on our ability to access the information that’s already Constitutionally collected in our databases, I just think is a really tragic and needless restriction,” Wray said. “And I beg the country not to go there again. I think we will regret it and I just am hoping that it doesn’t take another attack for people to realize that.”

The U.S. government does not publicly provide data to assert its claim that Section 702 keeps Americans safe, claiming that such disclosures would compromise intelligence gathering. This is understandable. Wray’s suggestion of “another attack” is not. It suggests fear will help steer Americans towards the right decision.             

Fear drove McCarthyism. Fear drove Japanese American internment. Fear drove the Chinese Exclusion Act and it helped drive the Patriot Act. Do not let fear drive us from our rights.

Section 702 needs review, and many parts of it—including the backdoor search—do not measure up to Wray’s justifications. If the government can prove that warrantless search of American communications keeps Americans safe, why does Wray rely on hypotheticals?

If you care about ending the backdoor search loophole, call your representatives today.

Published October 24, 2017 at 02:49AM
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EFF: An Over-The-Top Approach to Internet Regulation in Developing Countries

An Over-The-Top Approach to Internet Regulation in Developing Countries

Increased smartphone usage and availability of wireless broadband has propelled the use of Internet based platforms and services that often compete with similar services based on older technologies. For example services like Facebook, Skype and WhatsApp that offer voice or video calls over the Internet compete with traditional SMS and voice calls over telecom networks. Such platforms have gained in popularity particularly in developing countries because calling over the Internet is far cheaper than making calls on telecom networks. Online video streaming and TV services like Netflix and online similarly compete with traditional broadcasters and network providers.

These online applications and services are transforming traditional sectors and changing the economic landscape of the markets. The increasing popularity of such apps and services, often referred to by telecommunications regulators as „Over-the-top“ or OTT services, brings new regulatory challenges for governments. Historically, most of these services have not required a licence or been required to pay any licensing fee. As the use of such services picks up in developing countries, governments are rushing to create rules that would subject OTT providers to local taxation, security, and content regulation obligations—often under pressure from telco incumbents who are seeking protection from change and competition.

Taxing Online Platforms

In August 2017, the Indonesian government via the Ministry of Communication and Informatics (MCI) unveiled a liability framework for OTT providers [doc]. The sweeping regulations cover a whole slew of companies including SMS and voice calls and email services, chatting and instant messaging platforms, financial and commercial transaction service providers, search engines, social network and online media delivery networks, and companies that store and mine online data. The regulation, which is currently under review, makes it mandatory for offshore businesses to establish a „permanent establishment“ either through fixed local premises or by employing locals in their operations in Indonesia. Transnational companies are also required to have an agreement with an Indonesian network provider, and use local IP numbers and national payment gateways for their services.

Considering current trade negotiations aimed at outlawing data localization, these operational obligations for OTTs cement the view that the Indonesian government is attempting to create a local territorial nexus for online transactions and activities, allowing them to be taxed and controlled. The draft MCI regulations also require online platforms to create a „censor mechanism“ [sic] to filter and block „negative“ content including terrorism, pornography and radical propaganda. While e-commerce and marketplace platforms enjoy immunity from content related obligations in Indonesia, the new regulation effectively dismantles this safe harbor framework.

Worryingly, the regulation outlines a system of sanctions where the government can order telecommunication operators in Indonesia to use bandwidth management measures to take action against companies that violate the rules. Bandwidth management refers to the process by which the telecommunication operators manage traffic on their network, and can include traffic engineering measures such as limiting or throttling service traffic or the provision of priority access for certain services within certain periods. Such regulations would therefore likely violate net neutrality, and it is also unclear how this bandwidth management would be implemented. For example, the Ministry has not clarified safeguards to limit telecommunications providers from voluntarily conducting bandwidth management without a formal notice if it determines non-compliance with the law.

Soft-Peddling Censorship

Similar efforts to regulate online platforms are underway in Thailand. The National Broadcasting and Telecommunications Commission (NBTC) has committed to create a „level playing field“ between OTT service providers and traditional broadcasting and telecommunications industries. In April 2017, it suggested introducing bandwidth fees for online content providers, and has also proposed bringing OTT service providers under an operating licence framework, taxing them for transactions by local merchants and making them liable for illegal content. In July 2017, the Thai government issued an ultimatum to OTT services to register with the national telecom regulator or face getting slapped with sanctions such as bans on advertising that would threaten revenue growth.

The Thai regulator is exploring a „complaints-based“ framework of regulation and has set up a control list of the top 100 content creating companies that are required to establish local offices and be registered as entities in Thailand. Allegedly, the efforts to regulate OTT providers are driven by the dramatic rise in the revenues being generated by them. A study conducted by the NBTC found that free OTT services had earned combined advertising revenue of 2.16 billion Thai baht in 2016, 70% of which stemmed from YouTube. Accordingly, the general policy recipe outlined by the regulator is aimed at increasing taxes collected from online platforms.

Efforts to create a „level playing field“ could also be interpreted as measures to empower the regulator to more easily monitor and censor content that the government is finding difficult to regulate. The Thai government has been unsuccessfully trying to pressure to online intermediaries to remove allegedly illegal speech including proposing shutting down sites for non-compliance with takedown requests. The proposals to regulate OTTs can be seen as a backhanded move to give the regulator the authority to demand the removal of content the military-run government considers illegal without waiting for a court order. Parallel to the efforts of regulating OTTs, the National Reform Steering Assembly has introduced an 84-page social media censorship proposal. If approved the rules would require fingerprint and facial scanning just to top-up a prepaid plan, in addition to existing mandatory SIM card registration and linking mobiles to national identities. Commentators say the proposed rules are similar to those in use in China and Iran.

In India, regulators are considering proposals to require OTT providers to be placed under a telecom licensing-style regulatory framework. The telecom regulator has been organizing consultations on the issue since March 2015, however its stance on the matter is not clear. Reports suggest that regulating OTT may be a non-issue for the regulator in view of the future possibility of carriers to offer voice services through apps. However, telecom and network providers that stand to benefit from OTT regulation are pushing for interconnection agreements. The Department of Telecom (DoT) is reported to be working on a regulatory framework for services like WhatsApp, Facebook, Skype and WeChat that would subject them obligations similar to those outlined for telecom service providers.

The phenomenon of regulating OTTs is not limited to Asia. In Latin America, several countries including Uruguay, Costa Rica, Colombia, Argentina and Brazil are considering legislative changes to enable the taxing of OTT players. In Argentina, the government has issued a set of principles for telecommunications regulation that create obligations for registration of Internet intermediaries. Ahead of the Presidential elections in 2018 and with mounting opposition to his regime, the Zimbabwean President Robert Mugabe has created a Cyber Security, Threat Detection, and Mitigation Ministry to reign in threats emanating from social media. The government is also pressing ahead with a Computer and Cyber Crimes Bill, a comprehensive legislation that would allow the police to intercept data, seize electronic equipment and arrest people on loosely defined charges of “insurgency” and “terrorism.”

Under increasing pressure to rein in the use of online platforms the regime has taken several measures to curtail the ability of activists and opposition to organize themselves, including raising prices on cellphone data and cutting off access to the Internet. Earlier this month, the Cybersecurity Ministry issued an order that requires all WhatsApp groups to be registered and administrator of the group to have government level clearance. The rules also make membership of groups that do not have necessary clearance or licensed administrator a criminal offence. As the order clarifies members belonging to unqualified groups will be „jointly and severally liable“ for belonging to a group not registered with the cyber security ministry.

The move to regulate WhatsApp is especially significant given that the messaging service is the default window to the Internet for most Zimbabweans. In 2010, fewer than 5 percent of Zimbabweans had access to the internet, by early 2016, nearly 50 percent did, with most people connecting to the internet through their cell phones. A report by Zimbabwe’s telecoms regulatory body shows that the number of people using WhatsApp for voice calls has been on the rise. The government’s tough stance on the messaging platform has got digital rights activists worried that the regulation will have a chilling effect on freedom of expression.

Towards An International Framework for Regulating OTTs?

So-called OTT applications and services are the most visible part of the Internet for ordinary users. The rules and liability that are created for these applications and services impact freedom of expression, net neutrality, consumer rights and innovation. Therefore, discussions and rules on OTT regulation is at its core a debate about how the Internet should be regulated. Recognizing the global nature of online platforms, the International Telecommunications Union (ITU) has stepped in to explore global multilateral framework for OTT services and applications.

The telecom arm of the ITU whose primary function is to develop and coordinate voluntary international standards, known as ITU-T Recommendations, has established a study group public policy issues related to the Internet. The technical study group includes a mandate to weigh in on several Internet-related technical and economic issues including „charging and accounting/settlement mechanisms“ and „relevant aspects of IP peering“. Last year, the study group adopted text encouraging governments to develop measures to strike an „effective balance“ between OTT communications services and traditional communications services, in order to ensure a „level playing field“ e.g., with respect to licensing, pricing and charging, universal service, quality of service, security and data protection, interconnection and interoperability, legal interception, taxation, and consumer protection.

In May 2017, ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet) launched an open online and physical consultation on OTTs. The working group will evaluate opportunities and implications associated with OTT including policy and regulatory matters. It considers regulatory approaches for OTTs that ensure security, safety and privacy of the consumer and will work towards developing model partnership agreements for cooperation at the local and international level.

The physical consultation took place in September and received inputs from a wide range of stakeholders. During the World Telecommunications Development Conference (WTDC)—the main conference of the ITU’s Development sector, ITU-D—which took place in Argentina during October 2017, several governments have sought to expand the ITU Internet public policy mandate. As we approach the ITU’s 2018 Plenipotentiary Conference, or “Plenipot“ we can expect conversations on regulatory frameworks to escalate in the ITU. However developing rules in a multilateral framework of the ITU may not be the most appropriate way forward.

As Public Knowledge notes, the structure of the ITU renders itself vulnerable to harmful types of politicization, as states and regional coalitions seek to leverage this forum to grab greater control over Internet policy and standards development. Unlike the Internet Corporation for Assigned Names and Numbers (ICANN), the Internet Engineering Task Force (IETF), or the Internet Governance Forum (IGF), the ITU isn’t a multistakeholder community. The only relevant actors at the ITU are Member States and although private industry and civil society may contribute to technical work, they can only participate as nonvoting sector members. With its structural lack of transparency and openness there is plenty opportunity for ITU public policy processes to be co-opted by member states to validate problematic policy or standards proposals.

In an increasingly digital world where transnational global corporations shape content and speech, governments are at an inflection point in their policy choices for regulating online platforms. In seeking to create a „level playing field“ between OTT providers, and legacy media and network providers, governments may end up introducing rigid frameworks that stymie innovation and competition or cause irreversible consumer harms. There may be various valid public interest reasons to regulate OTTs such as to ensure their compliance with privacy standards and net neutrality rules. But such regulations should be made on a targeted basis. Imposing a strict and unyielding regulatory framework based on telecommunications regulation and licensing goes further than this, and risks becoming a vehicle to protect legacy telcos and to enact content censorship.


Published October 23, 2017 at 07:13PM
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EFF: How Silicon Valley’s Dirty Tricks Helped Stall Broadband Privacy in California

How Silicon Valley’s Dirty Tricks Helped Stall Broadband Privacy in California

Across the country, state lawmakers are fighting to restore the Internet privacy rights of their constituents that Congress and the President misguidedly repealed earlier this year. The facts and public opinion are on their side, but the recent battle to pass California’s broadband privacy bill, A.B. 375, suggests that they will face a massive misinformation campaign launched by the telecom lobby and, sadly, joined by major tech companies.

The tech industry lent their support to a host of misleading scare tactics.

Big Telco’s opposition was hardly surprising. It was, after all, their lobbying efforts in Washington D.C. that repealed the privacy obligations they had to their customers. But it’s disappointing that after mostly staying out of the debate, Google and Facebook joined in opposing the restoration of broadband privacy for Californians despite the bill doing nothing about their core business models (the bill was explicitly about restoring ISP privacy rules). Through their proxy the Internet Association, which also represents companies like Airbnb, Amazon, Etsy, Expedia, LinkedIn, Netflix, Twitter, Yelp, and Zynga, among others—Google and Facebook locked arms with AT&T, Verizon, and Comcast to oppose this critical legislation.  What is worse, they didn’t just oppose the bill, but lent their support to a host of misleading scare tactics.

How do we know? Because we were on the ground in Sacramento in September to witness every last-minute dirty trick to stop A.B. 375 from moving forward. But there is one positive outcome: ISP and Silicon Valley lobbyists have played their hand. When these tactics are deployed at the last minute by an army of lobbyists, false information is extremely hard to counter by citizens and consumer groups who lack special access to legislators. But over time legislators (and their constituents) learn the truth – and we’ll make sure they will remember it when this legislation comes back around in 2018.

People have not forgotten they had privacy rights that were repealed this year. It is in fact one of the most unpopular moves by this Congress and opposed by voters regardless of political party affiliation. Undoubtedly, the companies and their proxies will recycle what worked in California to other states as legislatures move closer to passing their own bills. To inoculate against misinformation, here is a breakdown of the three most pervasive myths we saw at the final hours.

Let’s not let our lawmakers get fooled again.

Read the Bill: the Definitions Are Rooted in Longstanding Telecom Law

Lobbyists often calculate that some lawmakers are not going to closely read a bill and that these policymakers will instead rely on the word of “industry experts” without checking their claims.

In California, the opposition lobby used this tactic and began claiming that the definition of “Broadband Internet Access Service” (the technical term for an ISP that sells broadband service) was inadequately defined and could burden all kinds of companies that are not ISPs. Technology giants like Google and Facebook, using the Internet Association as their proxy, echoed the false claim, providing the air of legitimacy that added to the intended confusion.

In reality, there was nothing vague or unclear about this definition in A.B. 375. The language in the California bill was copied almost verbatim from the long-standing definition under Federal Communications Commission rules.

You can see for yourself in this side-by-side comparison.

And the bill’s author, Assemblymember Ed Chau, went one step further to explicitly state which entities would not be covered by the bill:

“Broadband Internet access service provider” does not include a premises operator, including a coffee shop, bookstore, airline, private end-user network, or other business that acquires BIAS from a BIAS provider to enable patrons to access the Internet from its respective establishment.

The language couldn’t be clearer. But repeat a false claim enough times from enough paid lobbyists and legislators start to question themselves.

No, Broadband Privacy Protections Don’t Help Terrorists and Nazis

One of the most offensive aspects of the misinformation campaign was the claim that pretending to restore our privacy rights, which have been on the books for communications providers for years, would help extremism.

Here is the excerpt from an anonymous and fact-free document the industry put directly into the hands of state senators to stall the bill:

The bill would bar ISPs from sharing potentially identifiable information with law enforcement in many circumstances. For example, a threat to conduct a terror attack could not be shared (unless it was to protect the ISP, its users, or other ISPs from fraudulent, abusive, or unlawful use of the ISP’s service). AND the bill instructs that all such exceptions are to be construed narrowly.

In addition to national security scaremongering, the industry put out a second document that attempted to play off fears emerging from the recent Charlottesville attack by white supremacists:

This would mean that ISPs who inadvertently learned of a rightwing extremist or other violent threat to the public at large could not share that information with law enforcement without customer approval. Even IP address of bad actor [sic] could not be shared.

There is absolutely nothing true about this statement. A.B. 375 specifically said that an ISP can disclose information without customer approval for any “fraudulent, abusive, or unlawful use of the service.” More importantly, it also included what is often referred to as a “catchall provision” by allowing ISPs to disclose information “as otherwise required or authorized by law.”

The catchall provision is key, since there are already laws on the books allowing services to provide information to the police in emergency situations. For example, the Stored Communications Act spells out the rules under which ISPs are, and are not, allowed to disclose content to law enforcement. The California Electronic Communications Privacy Act (CalECPA), passed in 2015, allows ISPs to disclose information to law enforcement as long as it doesn’t run afoul of state or federal law and allows law enforcement to obtain this information without a warrant in specific emergency situations. Facebook and Google presumably know this, because they supported CalECPA when it was in the legislature. Comcast, AT&T, and Verizon know it too.

The Great, Fake Pop-up Scare

In materials like this advertisement, the opposition lobby claimed that A.B. 375 would result in a deluge of pop-ups that consumers would have to click through, and that in turn this inundation would create a sort of privacy fatigue. Consumers would stop caring, and cybersecurity would suffer.

We’ve debunked most of this tale in a separate post , but let’s address the issue of pop-ups. The bill did require ISPs get your permission (also known as opt-in consent) before monetizing your information that includes the following:

(1) Financial information.

(2) Health information.

(3) Information pertaining to children.

(4) Social security numbers.

(5) Precise geolocation information.

(6) Content of communications.

(7) (A) Internet Web site browsing history, application usage history, and the functional equivalents of either.

But it did not mandate that people have to constantly receive pop ups to obtain that consent. In fact, once you said no, they couldn’t keep asking you over and over again without violating this law and likely laws that regulate fraud and deceptive acts by businesses. However, if the ISP changed the terms of your agreement, they would have to ask your permission again.

Think of it like renting an apartment. If your landlord was going to change your lease agreement, you’d want to know and you’d want to make sure you agreed to any amendments. Being notified of these changes isn’t annoying, it is expected. The only thing that would be annoying is if your landlord kept pestering you to agree to changes you don’t want and did not take no for an answer.

The same applies to ISPs: people are a lot more concerned about ISPs trying to sneak through new invasions of privacy than the alerts they get about those changes.

Internet Users Will Need to Mobilize to Regain our Privacy Rights in 2018

It’s easy to see how lawmakers could be duped in the sleepless, high-speed, waning hours of the legislative session, especially when the information comes from sources that have historically been credible.

In 2018, we plan to make sure that every legislator who was bamboozled by companies like Google, Facebook, Comcast, and AT&T is given the facts. We are confident that lawmakers in states around the nation will continue to push for consumer privacy, filling the gaps created by the Federal Communications Commission as it rolls back network neutrality and privacy protections and AT&T’s efforts in the courts to eliminate the Federal Trade Commission’s authority to oversee telephone companies.

EFF will continue to support state efforts to respond, including dispelling the myths spread by privacy opponents. And we’ll need your help to make sure our legislatures respond to the demands of a vast majority of the public and side with Internet users—not the companies that seek to exploit them.

Published October 23, 2017 at 07:50PM
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EFF: Portugal Bans Use of DRM to Limit Access to Public Domain Works

Portugal Bans Use of DRM to Limit Access to Public Domain Works

At EFF, we’ve become all too accustomed to bad news on copyright come out of Europe, so it’s refreshing to hear that Portugal has recently passed a law on copyright that helps to strike a fairer balance between users and copyright holders on DRM. The law doesn’t abolish legal protection for DRM altogether—unfortunately, that wouldn’t be possible for Portugal to do unilaterally, because it would be inconsistent with European Union law and with the WIPO Copyright Treaty to which the EU is a signatory. However, Law No. 36/2017 of June 2, 2017, which entered into force on June 3, 2017, does grant some important new exceptions to the law’s anti-circumvention provisions, which make it easier for users to exercise their rights to access content without being treated as criminals.

The amendments to Articles 217 and 221 of Portugal’s Code of Copyright and Related Rights do three things. First, they provide that the anti-circumvention ban doesn’t apply to circumvention of DRM in order to enjoy the normal exercise of copyright limitations and exceptions that are provided by Portuguese law. Although Portugal doesn’t have a generalized fair use exception, the more specific copyright exceptions in Articles 75(2), 81, 152(4) and 189(1) of its law do include some key fair uses; including reproduction for private use, for news reporting, by libraries and archives, in teaching and education, in quotation, for persons with disabilities, and for digitizing orphan works. The circumvention of DRM in order to exercise these user rights is now legally protected.

Second and perhaps even more significantly, the law prohibits the application of DRM to certain categories of works in the first place. These are works in the public domain (including new editions of works already in the public domain), and to works published or financed by the government. This provision alone will be a boon for libraries, archives, and for those with disabilities, ensuring that they never again have to worry about being unable to access or preserve works that ought to be free for everyone to use. The application of DRM to such works will now be an offence under the law, and if DRM has been applied to such works nevertheless, it will be permitted for a user to circumvent it.

Third, the law also permits DRM to be circumvented where it was applied without the authorization of the copyright holder. From now on, if a licensee of a copyright work wishes to apply DRM to it when it is distributed in a new format or over a new streaming service, the onus will be on them to ask the copyright owner’s permission first. If they don’t do that, then it won’t be an offence for its customers to bypass the DRM in order to obtain unimpeded access to the work, as its copyright owner may well have intended.

If there’s a shortcoming to the law, it’s that it doesn’t include any new exceptions to the ban on creating or distributing (or as lawmakers ludicrously call it, „trafficking in“) anti-circumvention devices.  This means that although users are now authorized to bypass DRM in more cases than before, they’re on their own when it comes to accomplishing this. The amendments ought to have established clear exceptions authorizing the development and distribution of circumvention tools that have lawful uses, rather than leaving users to gain access to such tools through legally murky channels.

Overall though, these amendments go to show just how much flexibility countries have to craft laws on DRM that strike a fairer balance between users and copyright holders—even if, like Portugal, those countries have international obligations that require them to have anti-circumvention laws. We applaud Portugal for recognizing the harmful effects that DRM has access to knowledge and information, and we hope that these amendments will provide a model for other countries wishing to make a similar stand for users‘ rights.

Published October 23, 2017 at 09:12PM
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