EFF has petitioned a federal appeals court to reconsider its flawed ruling in our national security letter case on behalf of CREDO Mobile and Cloudflare. In July, the Ninth Circuit in San Francisco upheld the NSL statute against our First Amendment challenge. The court ruled that the FBI is entitled to significant deference in its decision to issue NSLs and gag electronic service providers like our clients from telling anyone about these requests for customer records. Now we’re asking the larger en banc Ninth Circuit to rehear the case. 

Notably, the court’s opinion made little effort to fit the NSL statute into the body of First Amendment law regarding prior restraints—government gag orders that prevent speech in advance. As our petition explains, the decision “departs from previously undisputed Ninth Circuit and Supreme Court precedent on a doctrine of fundamental constitutional importance: the First Amendment’s near-total prohibition on prior restraints.” 

The First Amendment singles out prior restraints for extraordinary scrutiny because their effect is drastic; they eliminate the possibility of discussion and debate entirely, rather than punishing individuals for harmful outcomes of their speech. That’s why courts have traditionally applied a “near-total” ban on prior restraints. In the most famous example, the Supreme Court refused to allow the Nixon administration to stop the publication of the Pentagon Papers by the New York Times and Washington Post. According to several of the justices, in order to stop speech that could harm national security, the government must show that it will “surely result in direct, immediate, and irreparable damage.”

That’s an extremely high bar to meet. So high that no one, not even the government, tries to argue that NSLs meet it. Under the NSL law, the FBI can issue gag orders simply by stating that a broad harm might occur if the recipient can reveal anything about the NSL, including just the simple fact that it has received one. 

Even though the Ninth Circuit itself has reiterated the need for “pin-pointed” strict scrutiny of prior restraints in numerous cases since the Supreme Court’s Pentagon Papers decision, it simply brushed this precedent aside in our case. The court instead characterized our call to apply truly strict scrutiny as “quibbling” with the judgments of FBI in issuing NSL gag orders and of Congress in passing the law. Semantics aside, the First Amendment absolutely does require courts to second-guess these judgments when prior restraints are involved. Our petition reminds the full Ninth Circuit of this duty, and we hope it will take the opportunity to fix the damage done to the First Amendment here.

If you've been following the slow progress of the European Commission's proposal to introduce new upload filtering mandates for Internet platforms, or its equally misguided plans to impose a new link tax on those who publish snippets from news stories, you should know that the end game is close at hand. The LIBE (Civil Liberties) Committee is the last committee of the European Parliament that is due to vote on its opinion on the so-called "Digital Single Market" proposals this Thursday October 5, before the proposals return to their home committee of the Parliament (the JURI or Legal Affairs Committee) for the preparation of a final draft.

The Confused Thinking Behind the Upload Filtering Mandate

The Commission's rationale for the upload filtering mandate seems to be that in order to address unwelcome behavior online (in this case, copyright infringement), you have to not only make that behavior illegal, but you also have to make it impossible. The same rationale also underpins other similar notice and stay-down schemes, such as one that already exists in Italy; they are meant to stop would-be copyright infringement in its tracks by preventing presumptively-infringing material from being uploaded to begin with, thereby preventing it from being downloaded by anyone else.

But this kind of prior restraint on speech or behavior isn't commonly applied to citizens in any other area of their lives. You car isn't speed-limited so that it's impossible for you to exceed the speed limit. Neither does your telephone contain a bugging device that makes it impossible for you to slander your neighbor. Why is copyright treated so differently, that it requires not only that actual infringements be dealt with (Europe's existing DMCA-like notice and takedown system already provides for this), but that predicted future infringements also be prevented?

More importantly, what about the rights of those whose uploaded content is flagged as being copyright-infringing, when it really isn't? The European Commission's own research, in a commissioned report that they attempted to bury, suggests that the harm to copyright holders from copyright infringement is much less than has been often assumed. At the very least, this has to give us pause before adopting new extreme copyright enforcement measures that will impact users' human rights. 

Even leaving aside the human impact of the upload filter, European policymakers should also be concerned about the impact of the mandate on small businesses and startups. A market-leading tool required to implement upload filtering just for audio files would cost a medium-sized file hosting company between $10,000 to $25,000 per month in license fees alone. In the name of copyright enforcement, European policymakers would give a market advantage to entrenched large companies at the expense of smaller local companies and startups.

The Link Tax Proposal is Also Confused

The link tax proposal is also based on a false premise. But if you are expecting some kind of doctrinally sound legal argument for why a new link-tax ought to inhere in news publishers, you will be sorely disappointed. Purely and simply, the proposal is founded on the premise that because news organizations are struggling to maintain their revenues in the post-millennial digital media space, and because Internet platforms are doing comparatively better, it is politically expedient that the latter industry be made to subsidize the former. There's nothing more coherent behind this proposal than that kind of base realpolitik.

But the proposal doesn't even work on that level. In fact, we agree that news publishers are struggling. We just don't think that taxing those who publish snippets of news articles will do anything to help them. Indeed, the fact that small news publishers have rejected the link tax proposal, and that previous implementations of the link tax in Spain and Germany were dismal failures, tells you all that you need to know about whether taxing links would really be good for journalism.

So as these two misguided and harmful proposals make their way through the LIBE committee this week, it's time to call an end to this nonsense. Digital rights group OpenMedia has launched a click-to-call tool that you can use, available in English, French, German, Spanish, and Polish. If you're a European citizen, the tool will call your representative on the LIBE committee, and if you don't have an MEP, it calls the committee chair, Claude Moraes. As the counter clicks closer to midnight on these regressive and cynical copyright measures, it's more important than ever for individual users like you to be heard.