Library Copyright Alliance Files Amicus Brief in GSU E-Reserves Case

On Monday, February 13, 2017, ARL together with the American Libraries Association, Association of College and Research Libraries and the Electronic Frontier Foundation filed an amicus brief in support of Georgia State University (GSU) in the e-reserves fair use case. After years of litigation and two opinions by the district court and one by the Eleventh Circuit, the case is once again before the Eleventh Circuit.

The brief opens by noting that that the continued appeals in the case are unnecessary:

Appellant Publishers (“Publishers”) and their amici don’t know when to quit. Publishers could have declared victory in 2009, when GSU modified its e-reserves policy in response to the initiation of this lawsuit. Publishers could have declared victory in 2014 after this Court reversed the district court’s 2012 decision and provided detailed guidance on how fair use principles should be applied to e-reserves. Publishers could have concluded this litigation after the district court refused to re-open the record on remand. Instead, Publishers doggedly pursue their claims concerning excerpts used in three school terms, eight years ago.

The brief then urges the Eleventh Circuit to affirm the lower court’s decision. In doing so, the brief notes that GSU’s copyright policy is consistent with the ARL Code of Best Practices for Academic and Research Libraries. The brief also suggests that the district court’s analysis of the second fair use factor (nature of the work) was flawed and the context of the works actually favors fair use. Finally, the brief notes the importance of the public interest in considering the fourth fair use factor (market harm).

On the second factor, the brief states that analysis of the second factor should be focused on “ascertain[ing] whether copyright was needed to incentivize creation and, by extension, whether or not a fair use finding helps serve the purposes of copyright.”  The brief points out that the scholarly community is a “gift culture” and while

We do not suggest that scholarly works should receive no copyright protection.  But we do agree with Judge Posner that copyright-based incentives are less necessary in the context of many academic works to serve copyright’s own fundamental goal: to further the progress of science.  Because scholarly works require “thinner” copyright protection to ensure their production, the second factor strongly favors a fair use finding with respect to all of the works at issue here.

With respect to the fourth factor, the brief points the constraints of library budgets and the growth of open access publishing.  It states that,

Placed in this context, it is clear that the public benefit of e-reserve practices such as GSU’s far outweighs any potential cost to publishers.  Although some academic publishers may have difficulty adjusting to the digital environment, predictions of the devastating impact the decision below would have on the evolving scholarly communications ecosystem are complete fiction.

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ARL Applauds Approval of Email Privacy Act, Urges Swift Senate Action

The Association of Research Libraries (ARL) applauds the approval of the Email Privacy Act by the US House of Representatives.  The House passed the bill with a voice vote, moving this critical piece of legislation one step toward ensuring that the outdated Electronic Communications Privacy Act (ECPA) is reformed to keep pace with the digital age. The House previously passed the Email Privacy Act in a unanimous vote during the last Congress.

House passage of the Email Privacy Act signals an important recognition that Fourth Amendment protections extend to online communications. As libraries and universities move services into the cloud and more communications take place online, ensuring the protection of information long considered to be private—including what individuals are reading or researching—is essential.

ARL has long supported reform of ECPA to ensure that the Fourth Amendment applies to digital communications and urges the Senate to quickly move forward to pass this bill.

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Finding Fair Use in Unexpected Places

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s theme is: 21st Century Creators: Copyright law should account for the interests of all creators, not just those backed by traditional copyright industries. YouTube creators, remixers, fan artists and independent musicians (among others) are all part of the community of creators that encourage cultural progress and innovation.

*This is a guest blog post by Jonathan Band, policybandwidth*

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In December 2016, strong endorsements of fair use appeared in somewhat unexpected places.

First, the Joint Strategic Plan (“JSP”) released by the Office of the Intellectual Property Enforcement Coordinator on December 12, 2016, stated that nothing in the JSP

should be interpreted as limiting the scope of exceptions and limitations, such as fair use, under U.S. copyright law. To the contrary, the basic principles that have permitted the Internet to thrive must be safeguarded, and the Strategic Plan expressly recognizes and celebrates advancements in technology. The way people use and access content – which has led to new and innovative uses of media (e.g., remixes and mashups involving music, video and the visual arts), and fair use, for example – will undoubtedly continue to evolve. We must work to foster creativity, understanding the role of exceptions and limitations as not only part of our body of laws, but as an important part of our culture. Indeed, it is the combination of strong copyright rights with a balance between the protection of rights and exceptions and limitations that encourages creativity, promotes innovation, and ensures our freedom of speech and creative expression are respected.

The JSP concludes this discussion by observing that “IP enforcement options must be crafted to allow for effective measures against actors that unlawfully prey on the works of rights holders, while ensuring that enforcement activities do not affect lawful activity.”

Second, the Copyright Office, in its December 15, 2016 report on software enabled consumer products, noted that “courts repeatedly have used the fair use doctrine to permit copying necessary to enable the creation of interoperable software products.” In support of this declaration, the report discussed the decisions in Atari v. Nintendo, Sega v. Accolade, and Sony v. Connectix, where the courts found that fair use excused the copying performed during the course of reverse engineering. The report added that “the case law generally holds that intermediate copying for purposes of reverse engineering and creation of interoperable products is, in most cases, a fair use.”

The report concluded its discussion of fair use by stating that “proper application of these principles should ensure that copyright law preserves the ability to create interoperable products and services.” In support of this statement, the report quoted the Ninth Circuit in Sega v. Accolade stating that “an attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.”

Third, in an amicus brief it filed in Georgia State University electronic reserves case on December 9, 2016, the Copyright Alliance stated that it “is a staunch supporter of fair use principles, which allow for copyright to achieve it purpose without undermining the incentive to create. Its members regularly rely on these principles to create new, expressive, transformative works, consistent with the Copyright Act’s inherent purpose.”

Fair use is often referred to as a “user’s right.” But as these statements correctly indicate, fair use is a creator’s right as well. Fair use is essential to the creation of new works in all forms, including books, films, music, and software.

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Access to Text Provides Meaningful Transparency

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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Today’s theme is Transparency and Representation: Copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through back room deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially.

Transparency is critical in understanding what laws may be created that will affect the public. For years, the United States has been involved in negotiated trade agreements in secret, without giving the public ample opportunity to make comments and engage in a meaningful way.  ARL has blogged about the concerns around the lack of transparency in trade negotiations many times in the past, noting that this is a primary failing of the negotiations of the Trans-Pacific Partnership Agreement (TPP), Trans-Atlantic Trade and Investment Partnership (TTIP) and other agreements, resulting in a lack of democratic process.  Although USTR has claimed transparency due to the opportunities to provide stakeholder presentations at various negotiations round, the secrecy of the negotiating texts and proposals made it impossible to actually give meaningful engagement.  Unlike the EU, for example, in the TTIP negotiations, USTR has not released draft textual proposals.

In 2016, ARL joined a coalition making critical recommendations for the United States Trade Representative Open Government Plan.

  1. Publish U.S. textual proposals on rules in ongoing international trade negotiations: USTR should immediately make available on its website the textual proposals related to rules that it has already tabled to its negotiating partners in the context of the TTIP, TiSA, and any other bilateral, regional, or multilateral trade negotiation it undertakes.
  2. Publish consolidated texts after each round of ongoing negotiations: USTR should impose as a prerequisite to any new or continuing trade negotiations that all parties agree to publish consolidated draft texts on rules after each negotiating round.
  3. Appoint a “transparency officer” who does not have structural conflicts of interest in promoting transparency at the agency.

These are the critical steps that USTR should take in negotiating trade agreements, whether the government is negotiating new agreements or, as President-elect Trump has promised to do, revisiting old agreements. The textual proposals are key to understanding what is being negotiated. While fact sheets may be useful, they are no substitute for the actual language of the texts which are highly technical and nuanced. As noted in ARL’s analysis of the final TPP text, there were significant improvements in the text from earlier proposals. Some of these improvements may have been made possible through the input of civil society and academics, but these comments were only possible due to access to leaked text.

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To Kill A Mockingbird Remains Under Copyright

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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It’s Copyright Week once again and today’s theme is Building and Defending the Public Domain: The public domain is our cultural commons and a crucial resource for innovation and access to knowledge. Copyright policy should strive to promote, and not diminish, a robust, accessible public domain.

One of my favorite and least favorite things to do each year in January is to check out Duke’s Center for the Study of the Public Domain and see what would have entered into the public domain, were it not for the changes to copyright term in the 1976 Copyright Act and the 1998 Copyright Term Extension Act. I find some morbid curiosity in looking to see what could have entered the public domain while mourning the fact that these great copyrighted works will remain under protection for another forty years. While most of the works covered in the Center for the Study of the Public Domain’s yearly list are well-known and the rightholder would presumably be easy to find, there are many more works that are orphans because of the lengthy term. The current copyright term significantly damages the public domain and raises the costs of access to knowledge.

As always, this year’s list has so many wonderful classics and well-known works, including Harper Lee’s To Kill a Mockingbird, Dr. Seuss’ Green Eggs and Ham and One Fish, Two Fish, Red Fish, Blue fish, and Jean-Paul Sartre’s Critique de la raison dialectique. Aside from these books, there are a number of classic films and music that are going to remain under copyright until 2056 rather than enter into the public domain now. To Kill a Mockingbird is a perfect example of the damage these copyright terms have; last year, I noted the swift action by Lee’s estate, weeks after her death, issuing a notice halting publication of the mass market version (also known as the “school” version) of the book (note that HarperCollins announced it would offer a discounted version to school purchasers — but not student purchasers — after a backlash against the elimination of the cheaper mass market publication).

Aside from these great books (the blog post also highlights films and music that would have entered the public domain), one of the notable points is that many of the scientific advances published in 1960 that is still copyrighted and behind paywalls:

1960 was another significant year for science. Max Perutz and Sir John Kendrew published articles on the structure of hemoglobin and the structure of myoglobin, respectively, and Robert Burns Woodward published an article describing a total synthesis of chlorophyll. (All three later won Nobel Prizes in Chemistry.) Theodore Maiman demonstrated the first working laser, a ruby laser. And the US launched its first successful weather satellite, TIROS-1.

If you follow the links above (and you do not have a subscription or institutional access), you will see that these 1960 articles are still behind paywalls. You can purchase the individual articles from the journal Nature for $32. A distressing number of scientific articles from 1960 require payment or a subscription or account, including those in major journals such as Science and JAMA. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions.

It’s remarkable to find scientific research from 1960 hidden behind publisher paywalls. Thankfully, some publishers have made older articles available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. In addition, some older articles have been made available on third party websites, but this is not a stable solution for providing reliable access to science. Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts.

With the fast pace of scientific and technological advances, it seems crazy that scientific research published 56 years ago remains behind paywalls.  The public domain is critical to promoting advances in culture and science, it is the very foundation of the Constitutional goal “to promote the progress of science and the useful arts.” It is a shame to see our current copyright terms restrict the rate at which works enter the public domain.

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Will Congress Finally Pass ECPA Reform?

The Electronic Communications Privacy Act (ECPA) is a law from 1986 governing privacy for online communications and has long been in need of reform. For the last several years, Congress has seriously considered reform to rectify the deficiencies of this law that denies individuals a reasonable expectation of privacy for the content of their online communications. On January 10, 2017, Congressmen Yoder (R-KS) and Polis (D-CO) reintroduced the Email Privacy Act (H.R. 387) for the 115th Congress, a bill that unanimously passed the House of Representatives last year.

ECPA was written in an era in which few individuals owned computers, most did not use e-mail, services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It reflects a poor understanding of the digital age and has clearly not kept pace with evolving technologies. ECPA allows the government to seize online documents and communications older than 180 days without a warrant, leading to an absurdity that grants greater protection to hard copy documents than to digital communications.

The Email Privacy Act would rectify this absurdity and restore Fourth Amendment protections to the digital world by requiring a warrant for content, just as a warrant would be required for a copy of a document stored in a file cabinet. The bill has enjoyed overwhelming bipartisan, with a super majority of the House of Representatives co-sponsoring the bill in the last Congress, before its unanimous passage.

ARL applauds the reintroduction of the Email Privacy Act and urges Congress to move quickly to pass ECPA reform and restore Fourth Amendment protections for online communications.

 

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ARL Joins Coalition Raising Privacy Concerns on Nomination of Sessions

On January 9, 2017, ARL joined a coalition of organizations in sending a letter to the Senate Judiciary Committee Chair Grassley (R-IA) and Ranking Member Feinstein (D-CA) raising concerns regarding Senator Sessions’ record on privacy.

The letter notes that

Senator Sessions has been a leading proponent of expanding the government’s surveillance of ordinary Americans at the expense of civil rights and civil liberties. He has spent his 20-year career in the Senate arguing for broad, often unchecked surveillance powers in intelligence investigations, even though those investigations pose unnecessarily invasive risks to privacy. Senator Sessions has staunchly defended the USA Patriot Act’s most controversial and privacy invasive provisions, calling the Act “a restrained piece of legislation.” He has advocated for broader surveillance powers than the intelligence community (IC) itself has asked for and opposed the USA Freedom Act, which the IC supported.

The letter continues by providing specific examples and statements by Senator Sessions that raise serious concerns regarding his commitment to privacy, freedom of speech and civil liberties.  The full letter can be read here.

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Network Neutrality in the Cross Hairs

*Jointly authored by Larra Clark, Krista Cox and Kara Malenfant*

It is widely reported that network neutrality is one of the most endangered telecommunications policy gains of the past two years. The ALA, ARL and ACRL—with EDUCAUSE and other library and higher education allies—have been on the front lines of this battle with the Federal Communications Commission (FCC), Congress, and the courts for more than a decade. Here’s an update on where we stand, what might come next, and what the library community may do to mobilize.

What’s at stake: Net neutrality is the principle that internet service providers (ISPs) should enable access to all content and applications regardless of the source, and without favoring or blocking particular services or websites. Net neutrality is essential for library and educational institutions to carry out our missions and to ensure protection of freedom of speech, educational achievement, research and economic growth. The Internet has become the pre-eminent platform for learning, collaboration, and interaction among students, faculty, library patrons, local communities, and the world.

In February 2015, the FCC adopted Open Internet rules that provided the strongest network neutrality protections we’ve seen, and which are aligned with library and higher education principles for network neutrality and ongoing direct advocacy with FCC and other allies. The rules:

  • Prohibit blocking or degrading access to legal content, applications, services, and non-harmful devices; as well as banning paid prioritization, or favoring some content over other traffic;
  • Apply network neutrality protections to both fixed and mobile broadband, which the library and higher education coalition advocated for in our most recent filings, as well as (unsuccessfully) in response to the 2010 Open Internet Order
  • Allow for reasonable network management while enhancing transparency rules regarding how ISPs are doing this;
  • Create a general Open Internet standard for future ISP conduct; and
  • Re-classify ISPs as Title II “common carriers.”

As anticipated, the decision was quickly challenged in court and in Congress. A broad coalition of network neutrality advocates successfully stymied Congressional efforts to undermine the FCC’s Open Internet Order, and library organizations filed as amici at the U.S. Appeals Court for the D.C. Circuit. In June 2016, the three-judge panel affirmed the FCC’s rules.

What’s the threat:  During the presidential campaign, and with more specificity since the election, President-elect Donald Trump and members of his transition team, as well as some Republican members of Congress and the FCC, have made rolling back network neutrality protections a priority for action.

Here’s a sample of what we are reading and hearing these days:

“The fate of the agency’s net neutrality rules will be the FCC’s biggest fight of the year.”

“2015 was the year the Federal Communications Commission grew a spine. And 2017 could be the year that spine gets ripped out.”

“Federal Communications Commission member Ajit Pai yesterday vowed to take a ‘weed whacker’ to FCC regulations after President-elect Donald Trump takes office, with net neutrality rules being among the first to be cut down.”

“The caucus recommends undoing the Federal Communications Commission’s 2015 regulation, on the grounds that it did too much in a stroke.”

“Pai and O’Rielly will have a 2-1 Republican majority on the FCC after the departure of Democratic Chairman Tom Wheeler on January 20. Pai previously said that the Title II net neutrality order’s ‘days are numbered’ under Trump, while O’Rielly said he intends to ‘undo harmful policies’ such as the Title II reclassification.”

As in the past, attacks on network neutrality may take many different forms, including new legislation, judicial appeal to the Supreme Court, initiating a new rulemaking and/or lack of enforcement by new FCC leadership, or new efforts by ISPs to skirt the rules.

For instance, there may be an effort by some Members of Congress to craft a “compromise” bill that would prohibit blocking and degradation by statute but reverse the FCC’s decision to classify ISPs as Title II common carriers. We are wary, however, that this so-called compromise may not give the FCC the authority to enforce the statutory rules.

So, now what? As the precise shape of the attacks is still taking form, the library and higher education communities are beginning to connect and engage in planning discussions. We will monitor developments and work with others to mobilize action to ensure Open Internet protections are preserved.

Library advocates can help in several ways:

  • Stay informed via District Dispatch blog (subscribe here) and ARL Policy Notes blog (subscribe here)
  • Sign up for Action Alerts so we can reach you quickly when direct action is needed
  • Share your stories, blog and engage on social networks about the importance of network neutrality and the need to defend it

*Larra Clark is Deputy Director for the ALA Office for Information Technology Policy and Public Library Association. Krista Cox is ARL Director of Public Policy Initiatives. Kara Malenfant is ACRL Senior Strategist for Special Initiatives.

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What Will Happen to the TPP Copyright Provisions?

Over the last several years, a group of countries, including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States negotiated a comprehensive regional trade agreement known as the Trans-Pacific Partnership Agreement (TPP).  This agreement was controversial for a number of reasons and, as a result of the recent elections in the United States, will almost certainly not come into force.

The TPP garnered heavy criticism, not only for the substantive provisions being negotiated, but also because of the lack of transparency in the negotiations; an official release of text occurred only after the agreement had been signed.  One of the chapters included in the TPP is one on intellectual property, with detailed provisions on copyright.  On October 5, 2015 the twelve ministers of the TPP countries announced that a deal had been reached and the final agreement on the copyright provisions had mixed results.

The final text showed several great improvements over earlier leaked versions of the United States’ proposal.  The text included flexibility in the language on technological protection measures and removed earlier proposals banning parallel importation or formalities, for example.  In many areas, including on technological protection measures, the text represented an improvement over prior, bilateral trade agreements between the United States and other countries.  Additionally, the TPP included a significant provision on limitations and exceptions, requiring parties to “endeavor to achieve an appropriate balance,” the first time such a provision has been included in a United States trade agreement.

While there were some improvements, there also remained areas of concern.  For example, the provisions on Internet service providers included a carve-out to allow Canada to maintain its notice-and-notice system, but did not extend this flexibility to any other country.  Additionally, the TPP included the lengthy copyright term of life plus seventy years, far exceeding the international minimum standard of life plus twenty.

Regardless of whether the TPP text was ultimately a positive or a negative, with Trump’s election and refusal by Congress to vote on the deal during lame duck, the agreement will not move forward in the United States and, likely, for the other eleven parties.  The TPP includes a provision stating that it will not go into force until after the ratification of the agreement by both the United States and Japan.  Although the remaining parties could renegotiate the agreement, they may not want to do so given that one of the major incentives was access to the United States market and that six of the eleven countries already had preexisting trade agreements with the United States.

What does this mean for the final copyright provisions, both the good and the bad, of the TPP?

First, with respect to the harmful provisions, countries should avoid adopting implementing legislation to comply with an agreement that will not come into force, such as restrictive provisions on technological protection measures or copyright term extension.  Curiously, some countries, most notably New Zealand, went forward with ratification and implementation anyway; New Zealand passed implementing legislation on November 15, including a provision to extend copyright term to the TPP-mandated term of life plus seventy years (though this legislation will only come into force if/when the TPP comes into force).  It would seem that in adopting such implementing legislation, if it does not go into force, New Zealand may lose some bargaining power in future negotiations, whether with the United States or not, with respect to copyright since it has already clearly indicated its willingness to adopt a term extension that has no real policy justification or evidence basis to support it.  In fact, New Zealand’s analysis found that copyright term extension would result in a “significant cost” to its economy. “This cost – in terms of foregone savings on books, films, music and other works – increases gradually over 20 years and averages around $55 million a year over the very long term.” Without the benefits of access to the United States’ (and other TPP parties’) markets, the real point of a trade agreement, why would countries move forward to implement provisions that do not benefit them?

There is always hope that should another large trade agreement be negotiated in the future, countries can find ways to oppose a copyright term that is highly controversial, even within the United States, which has been the demandeur of term extension.  One obvious positive of the TPP’s death is that these harmful provisions need not be enacted and, hopefully, will therefore be less likely to become a new global norm.

Of course, on the other side of the equation, what happens to the positive, or relatively positive, outcomes in the copyright section of the TPP?  For the first time in any United States trade agreement, text was introduced acknowledging the importance of a balanced copyright system and the role limitations and exceptions play in achieving this balance.  This text, a proposal by the United States, was substantially improved over the course of the negotiations, for example by clarifying that the language did not reduce the application of other limitations and exceptions permitted under international agreements, and also ultimately included a footnote referencing the Marrakesh Treaty for the Blind, Visually Impaired or Otherwise Print Disabled.  It would be a shame not to include this balancing provision in future trade agreements.  While the provision certainly could have been improved by requiring parties to achieve a balance, it still required parties to endeavor to achieve.  Hopefully, its inclusion in the final negotiated text, and the fact that it was a proposal by the United States, signals an intention to include balancing provisions in future trade agreements.

Furthermore, additional TPP provisions on technological protection measures, general provisions, and ones on enforcement allowed for greater flexibility than the provisions of many existing trade agreements.  Such flexibility may have resulted from the benefits of a larger group of negotiating countries which ultimately gave the United States less leverage in the negotiations.

President-elect Trump has indicated a desire to revisit the North American Free Trade Agreement (NAFTA), and in doing so, it is certainly concerning that the more harmful copyright provisions of the TPP may find their way into a renegotiation of NAFTA, without the benefits of the positive provisions.  Canada, in particular, because it has not yet implemented copyright term extension and has a robust fair dealing provision, should be wary of reopening copyright

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ARL Joins Coalition Letter Raising Concerns Over Compelled Scanning of E-mails

On Tuesday, October 25, ARL joined a coalition of civil society groups raising concerns regarding recent reports that Yahoo! had been compelled under the Foreign Intelligence Surveillance Act (FISA) to scan the emails of all of its users for a “signature” associated with a foreign power.  The letter raised serious concerns over user privacy and also noted that such scanning could violate FISA and the Fourth Amendment.

The letter calls on the Director of National Intelligence to publicly disclose the interpretations of law relied upon to justify the scanning order; to release FISA Court opinions that compelled such surveillance (and as required under the USA FREEDOM Act); disclose whether scanning of e-mail content occurred under this order; disclose the selectors the government believes are permissible; and to indicate the number of times such an order was issued compelling the scanning of all incoming emails.

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