Aletho News

Mandatory Reporting of User Content Chills Speech and Violates Privacy Rights

By Kelsey Harclerode and Erica Fisher | EFF | August 5, 2015

EFF joined a broad coalition of 31 organizations in sending a letter to Senate leadership opposing an unconstitutionally vague law that would require Internet companies to report to the government when they obtain “actual knowledge” of any “facts and circumstances” related to “terrorist activity.” Section 603 of the Intelligence Authorization Act for Fiscal Year 2016 (S. 1705), which does not define “terrorist activity,” raises significant First and Fourth Amendment concerns, including the chilling of protected speech and the warrantless search and seizure of private electronic content.

First Amendment Concerns

The most obvious flaws in Section 603 are its vagueness and overbreadth: it will chill wholly legal speech and conduct. The key reason is that there is no clear agreement in U.S. society about what counts as “terrorism” (and triggers mandatory reporting). The single, tiny island of clarity in the term “terrorist activity” is one non-exclusive reference to 18 U.S.C. § 842(p), which makes it unlawful for a person to distribute information relating to explosives if the person has knowledge that the recipient intends to use the information to commit a violent crime. Otherwise, Section 603 is a Rohrschach blot.

Because Section 603 leaves both companies and users uncertain as to what exactly triggers the mandatory reporting requirement, this vague obligation to report will encourage service providers to broadly implement the law and will, in turn, encourage users to self-censor to avoid being reported to the federal government as possible “terrorists.” Without further clarification, the law will likely put innocent political activists, journalists, engaged citizens, professors and students participating in wholly lawful debate and research under a cloud of suspicion. For many, the risk of being put on a mysterious government watch list will more often than not outweigh the benefit of speaking.

With limited context for, say, a tweet or private direct message, service providers will err on the side of over-reporting and submit First Amendment-protected speech through content-flagging or automated monitoring systems. Section 603 includes a “protection of privacy” subsection, which clarifies that nothing in the provision “may be construed to require [a] service provider…to monitor any user…or the content of any communication.” Yet this “protection” does little to counteract the pressure on intermediaries to monitor their users’ behavior and content. While intermediaries often rely on content-flagging systems that enable users to report apparent unlawful or abusive activity of other users, this mechanism is prone to fraudulent notices. An automated monitoring system based on keywords would allow intermediaries to avoid having to themselves make decisions about their users’ content. But because it’s not obvious what constitutes “terrorist activity,” a user could be reported any time she uses a buzzword related to terrorist groups, the Middle East, U.S. foreign policy, or a particular political ideology.

Fourth Amendment Concerns

Section 603 not only chills lawful speech, it also tries to evade constitutional barriers that protect against unreasonable searches and seizures of private communications by the government.

EFF has consistently argued that a warrant based on probable cause is required for compelled government access to content stored by “cloud” service providers. In United States v. Warshak, the Sixth Circuit held that the government cannot access email content without a warrant because users have a Fourth Amendment-protected reasonable expectation of privacy in the email content that they store with these intermediaries.

While Section 603 does not permit the government to demand the production of content, it does require Internet companies to report content—including private content—reflecting “terrorist activity.” There is no question that this kind of mandatory reporting statute is subject to Fourth Amendment scrutiny, not unlike the ordinance found unconstitutional in Los Angeles v. Patel.

The applicability of the Fourth Amendment is particularly important given the amount of private content the government will acquire under this provision. As noted above, this mandatory provision will encourage companies to over-report both public and private content to the government. This will enable the government to evade normal due process requirements—including meeting legal standards such as probable cause and submitting to judicial review—while collecting much private content protected by the Fourth Amendment.

Future Action

Section 603’s constitutional implications have not gone unnoticed in Congress. On July 27, the Senate was set to pass the bill by unanimous consent until Sen. Wyden objected to this expedited procedure. The Senate will now have to engage in the normal process of debate and amendment, or remove this provision from the bill to prompt Sen. Wyden to withdraw his objection and enable the bill to pass by unanimous consent. The government should not be permitted to evade constitutional limits by turning private companies into watchdogs with no leashes. We urge Senate leadership to withdraw Section 603 from the intelligence authorization bill.

August 6, 2015 Posted by aletho | Civil Liberties, Full Spectrum Dominance | Human rights, United States | Leave a comment

In Victory for Free Speech and Animals, Judge Strikes Down Idaho ‘Ag-Gag’ Law

Banning the filming of factory farm operations is an unconstitutional violation of both free speech and equal protection clauses, says federal judge

A demonstration against Ag-Gag legislation in Idaho outside the state house in 2014. (Credit: Flickr / cc / Mercy for Animals)

By Jon Queally | Common Dreams | August 4, 2015

In a victory for animal rights advocates—and the animals on factory farms they seek to protect—a federal judge on Monday ruled Idaho’s controversial “ag-gag” law unconstitutional in a decision that said criminalizing the undercover documentation of livestock abuse violates both free speech and the equal protection clause.

“The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment,” U.S. District Judge B. Lynn Winmill stated in his 28-page ruling.

Under the law, people filming agricultural operations without permission in Idaho face up to a year in jail and a $5,000 fine. By comparison, a jail sentence for an animal cruelty conviction is capped at six months and a maximum fine of $5,000.

However, as Winmill’s ruling continued, the legal arguments in favor of banning undercover investigations—long a tactic of animal rights groups with no other way to prove or expose such abuse—did not stand up to scrutiny. “Audio and visual evidence is a uniquely persuasive means of conveying a message,” he wrote, “and it can vindicate an undercover investigator or whistleblower who is otherwise disbelieved or ignored. Prohibiting undercover investigators or whistleblowers from recording an agricultural facility’s operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast.”

In the end, the judge concluded, “the facts show the state’s purpose in enacting the statute was to protect industrial animal agriculture by silencing its critics.”

Though other states have passed similar laws in recent years, the decision by Winmill marks the first time a federal court has struck down such legislation. And though the Idaho ruling could be appealed to a higher federal court, it is also likely to spur additional challenges in those other states.

Instigated by an undercover operation by the animal rights group Mercy for Animals, Idaho’s law was signed into law in 2014 by the state’s Republican Gov. Butch Otter, but was challenged in court by a coalition of welfare advocates, led by attorneys with the Animal Legal Defense Fund.

ALDF called Winmill’s ruling a “landmark victory” for all those represented by the suit, which in addition to the tens of thousands nameless animals, included a broad-based public interest coalition of national nonprofits, including the People for the Ethical Treatment of Animals (PETA), the American Civil Liberties Union (ACLU) of Idaho, journalists  Will Potter and Blair Koch, Farm Sanctuary, and the Center for Food Safety (CFS). In a joint statement, the coalition said:

Undercover video and photography has exposed numerous shocking practices that are “industry standards.” These pervasive, systematic procedures include routine mutilation, including debeaking birds with electrically heated blades and castrating male animals by slicing open their scrotum and ripping their testicles out without pain relief or anesthesia and intensive confinement—where animals are literally unable to turn around for months on end. Exposes have also detailed the sickening farming conditions resulting in contaminated meat products—posing serious health risks to the public—and life threatening conditions for farm workers.

These investigations, and the subsequent media coverage, have led to food safety recalls, citations for environmental and labor violations, evidence of health code violations, plant closures, criminal convictions, and civil litigation. The Idaho statute unconstitutionally and unwisely prohibits efforts to bring violations of state and federal laws relating to food safety, environmental protection, and animal handling to the attention of the public and law enforcement.

Ag-Gag laws are notoriously unsupported by the public. Nationwide thirty-two similar Ag-Gag measures have failed. Currently, seven states have Ag-Gag laws on the books. This Idaho decision is just the first step in defeating similar Ag-Gag laws across the country.

Mercy for Animals also hailed the ruling, saying it is now looking forward to continuing its work and producing more undercover videos in Idaho.

“Idaho’s lawmakers should be ashamed of wasting precious time and valuable resources enacting unconstitutional laws that threaten animal welfare, food safety, workers’ rights and the environment,” said Nathan Runkle, president of Mercy for Animals, in response to the ruling. “We hope they will now focus their efforts on improving animal welfare and rewarding the brave whistleblowers who uncover criminal activity in Idaho’s agricultural operation.”

August 6, 2015 Posted by aletho | Civil Liberties, Full Spectrum Dominance | Human rights, United States | Leave a comment