Your smartphone, navigation system, fitness device, and more know where you are most of the time. Law enforcement should need a warrant to access the information these technologies track.
Lawmakers have a chance to create warrant requirements for the sensitive location information collected by your devices.
Sen. Ron Wyden and Reps. Jason Chaffetz and John Conyers reintroduced the Geolocation Privacy and Surveillance Act (H.R. 1062) earlier this week. Congress should quickly move this bill and protect consumers’ privacy from warrantless searches.
Currently, law enforcement need to obtain a warrant before they can use their own GPS device to track individuals—like by attaching a GPS unit to a suspect’s car—under the Supreme Court’s 2012 ruling in U.S. v. Jones. But that kind of court oversight is missing when law enforcement goes to a third-party company to get location information or when law enforcement uses devices that mimic cellphone towers and siphon off users’ location information.
Tell Congress to put in place basic and necessary privacy protections for the sensitive location information collected by the devices in your pockets, in your car, and on your wrist.
Share this: Join EFF
If a patent troll threatens your company, can you go to your nearest federal court and ask for a ruling that the patent is invalid or that you aren’t infringing it? According to the Federal Circuit (the court that hears all patent appeals), the answer to this question is usually no. The court has a special rule for patent owners that demand letters cannot create jurisdiction. EFF, together with Public Knowledge, recently filed a friend-of-the-court brief asking for this rule to be overturned. But in a decision this week, the Federal Circuit reached the right result for the accused infringer in the case, but left its bad law largely in place.
In Xilinx v Papst Licensing, a German patent troll, Pabst, accused Xilinx of infringing a patent relating to memory tests in electronics. Papst sent Xilinx a couple of letters and visited the company at its offices in California to demand payment of a license fee. Xilinx then filed a lawsuit in the Northern District of California asking the court to rule that the patent was invalid and it did not infringe. The district court dismissed the case. On appeal, the Federal Circuit was asked to determine whether the California district court could exercise personal jurisdiction over Papst.
At EFF we’ve long complained about unfair rules in patent cases that give patent owners almost complete control over where disputes are litigated. The Federal Circuit has developed two strands of jurisprudence that, in tandem, have led to this result. First, in a 1990 case called VE Holding, the Federal Circuit held that companies that sell products nationwide can be sued for patent infringement in any federal court in the country. (The Supreme Court is set to decide whether this holding should be overruled.)
Second, in a case called Red Wing Shoe, the Federal Circuit ruled that companies who receive patent demand letters from trolls can’t sue them in their home district to get a determination the patent is invalid or not-infringed. As others have noted, the Federal Circuit has “gone to great lengths to deny jurisdiction over patentees sending demand letters from afar.”
As a practical matter, VE Holding and Red Wing Shoe operate as a one-two punch that gives patent owners almost complete control over where patent disputes can be litigated. This means that a productive company threatened by a troll may have no choice but to litigate in a distant and expensive forum, such as the Eastern District of Texas, where local rules systematically favor patent owners over patent defendants.
In our amicus brief, we argued that the Federal Circuit should hear the case en banc and overrule Red Wing Shoe. But the court did not go so far. Instead, it relied on the physical visit of Papst employees to Xilinx’s offices to justify jurisdiction in the forum. This allowed the court to distinguish other cases where it held that demand letters are never enough to establish jurisdiction. So while this is a good result for Xilinx, it won’t help most targets of patent trolls.
But the rule in Red Wing Shoe is wrong and should be overruled. Indeed, it is part of a long pattern of Federal Circuit decisions that create rigid rules favoring patent owners. While we suspect it would not survive review by the Supreme Court, that question will have to wait for another case.
Share this: Join EFF
Last week, a federal court in Seattle issued a ruling in Microsoft’s ongoing challenge to the law that lets courts impose indefinite gag orders on Internet companies when they receive requests for information about their customers. Judge James Robart—he of recent Washington v. Trump fame—allowed Microsoft’s claim that the gags violate the First Amendment to proceed, denying the government’s motion to dismiss that claim. It’s an important ruling, with implications for a range of government secrecy provisions, including national security letters (NSLs). Unfortunately, the court also dismissed Microsoft’s Fourth Amendment claim on behalf of its users.
When tech companies can’t tell users that the government is knocking
Before looking at the substance of Judge Robart’s ruling, it’s worth remembering why EFF thinks Microsoft’s lawsuit is important. In fact, we’d go so far as to say that challenging gag orders imposed alongside government data requests is one of the key digital civil liberties issues of our time. That’s true for at least two reasons:
First, there has been a sea change in where we keep our sensitive personal information— “papers and effects” protected by the Fourth Amendment and records of First Amendment-protected speech and associations. Just twenty or thirty years ago, most or all of this information would have been found in people’s homes. In order to get at your information—whether by breaking down your door or serving you with a grand jury subpoena—the government usually couldn’t help tipping you off. These days, private information is more likely to be stored in Microsoft Office 365 or with another third-party provider than a home office. In that case, you won’t know the government is interested in your information unless you hear from the government or the third-party provider. But the government isn’t always required to notify the targets of data requests, and it routinely gags providers from notifying their users. The long-standing default—notice that the government is after your information—has in just a short time effectively flipped to no notice.
Second, gags distort the public’s understanding of government surveillance and correspondingly place far more responsibility on providers. The statutory provision at issue in Microsoft’s lawsuit, 18 U.S.C. § 2705, applies in criminal cases. This statute allows the government to gag service providers if a court finds that informing the user will result in one of several enumerated harms—death or injury to a particular person, destruction of evidence, witness tampering, and so on. But as Microsoft’s complaint explains, Section 2705 gag orders accompany at least half of the data demands the company receives, and courts often grant them without explicit findings of potential harm. In many cases, they also do so without setting a date for the gag to dissolve. The result is a de facto permanent gag order. That’s an abuse of what is intended as a limited power, granted to the government to protect specific, sensitive investigations.
Unless a provider takes extraordinary steps—like filing a facial constitutional challenge as Microsoft did—it’s likely that the public won’t be aware of this abuse. This intensifies the role that providers play as trustees of our data. That’s why EFF tracks both transparency reports and user notification as part of our annual Who Has Your Back report. We don’t just rely on companies to keep our data secure, we also need them to stand up to the government on our behalf. It’s a point often missed by those who dismiss companies’ growing commitments to privacy as empty marketing. If not Microsoft, Apple, Google, Facebook and all the others, then who?
The ruling: first party prior restraints and third-party Fourth Amendment rights
Despite the importance of these issues, the government argued that Microsoft’s challenge should be bounced out of court at the preliminary motion to dismiss stage. On the First Amendment claim, at least, the court disagreed. Microsoft’s basic argument will be familiar if you’ve followed EFF’s NSL cases: when the government prevents you from speaking in advance, it’s known as a prior restraint. Under the First Amendment, prior restraints must meet “exacting scrutiny” and are rarely constitutional. Here, the court found that Microsoft had more than adequately alleged that Section 2705 does not meet this exacting scrutiny because it does not require courts to time-limit gags to situations where they are actually necessary based on the facts of the case.
This is nearly identical to one of the issues in EFF’s NSL cases—NSLs similarly allow the FBI to gag service providers indefinitely.1 However, NSLs are even more egregious in several ways: the FBI can issue them without any involvement by a court at all, and it need not even claim that one of the specified harms will actually result without an NSL gag. We hope the Ninth Circuit will consider our NSL clients’ arguments about their First Amendment rights as thoroughly as Judge Robart did here.
Finally, the court reached an unsatisfying conclusion about Microsoft’s attempt to raise its users’ Fourth Amendment rights. As EFF explained in our amicus brief earlier in the case, notice of a search is a core part of the Fourth Amendment’s protections. When Microsoft is precluded from notifying users, it is the only party with knowledge of the search and therefore should be able to raise its users’ Fourth Amendment rights. Nevertheless, the court found that Fourth Amendment rights are inherently personal and cannot be raised by a third party, leading it to dismiss Microsoft’s claim. We think that’s wrong on the law, and we hope Microsoft will consider seeking leave to appeal. Meanwhile, we’ll watch as the case progresses on Microsoft’s First Amendment claim.
- 1. Judge Robart’s order wrongly states that NSL are time-limited.
Share this: Join EFF
We summarize last week’s activities; share next week’s upcoming events; and comment on Exxon corporation’s use of first amendment “free speech rights” to avoid guilt and responsibility in selling fossil fuels despite knowing those products caused climate change; introduced mis-named “right to know” legislation in Ohio; and a review of the new film about James Baldwin on race, class and power. [Length: 33:32]
Jen Roesch, one of the organizers of a February 11 counterprotest against anti-abortion forces in New York City, looks at the political questions raised by this success.
Supporters of a woman's right to choose face off against antis at a Twin Cities Planned Parenthood facility
ON FEBRUARY 11, anti-abortion groups targeted 200 clinics across the country for protests they hoped would build support for pending legislation that would cut off all federal funding for Planned Parenthood. But when they showed up Saturday morning, they were met with counterprotests that mostly outnumbered them at 150 of the 200 clinics.
For the first time in a long time, there was a national day of action defending abortion rights and directly countering the bigots who have become an institutionalized--and largely unopposed--presence at clinics.
The reach of these counterprotests was all the more significant because they were largely organized by small or new groups of activists who felt the need to confront the right. Planned Parenthood's political arm had opposed the counterrallies at clinics nationally on the stated claim that they would make things more stressful for patients.
Some local affiliates of Planned Parenthood did organize counterprotests, like in the Twin Cities, and these had the largest turnouts, reaching into the thousands. This shows what could have been done if the organization had seized the opportunity to galvanize the large numbers of people wanting to support them.
Instead, in the weeks before February 11, Planned Parenthood mounted what felt like an unprecedented campaign against counterprotesting.
Major liberal media outlets such as the Huffington Post and Slate ran articles acknowledging that many people wanted to counterprotest, but repeating Planned Parenthood's arguments about why they shouldn't. Instead, people who wanted to support were told to write letters to politicians, send Valentines to abortion providers or donate.
Here in New York City, the counterprotest--a loud and bold demonstration of some 300 people who drowned out the bigots and gave confidence to everyone who participated or witnessed it--almost didn't happen.
As someone centrally involved in organizing the protest here, I think it is useful to look back and describe how and why we organized it, the responses we received and what we accomplished. I believe our experience points to important strategic issues we need to address if we hope to resist the current tidal wave of attacks on our rights.
- - - - - - - - - - - - - - - -
LIKE THOUSANDS of others, when I heard about the call to defund Planned Parenthood, my instinct was to organize a counterprotest.
I am a member of the International Socialist Organization (ISO), and we began reaching out to groups we thought would be interested. We discovered that an individual had already put up a Facebook event for a New York City counterprotest that had received thousands of responses in its first day. We decided to mobilize to support that.
But the initial call to action was replaced with a call to wait for a decision from Planned Parenthood about what to do--followed by the directive not to counterprotest. There was some debate on the Facebook page, but anyone who defended counterprotesting was quickly pushed back.
Nonetheless, thousands of people had expressed interest. It was obvious that large numbers of people not only wanted to protest, but felt emboldened by the resistance developing to Trump. Having participated in the airport protests that put the pressure on to halt Trump's Muslim ban, ISO members and others felt that now was the time for direct, mass mobilization.
But there was no space to discuss these questions. How could we know what other people were willing to do? Should we just give up the idea and let bigots go unopposed because Planned Parenthood's leadership said so?
We had limited time--February 11 was just over a week away--but we wanted to find a way to take the debates off social media and bring people together.
I was troubled by the Facebook discussions. Those supporting Planned Parenthood's position were telling people were saying that the organization's strategists have been doing this for a long time and know what's best.
Right now, we have millions of people becoming involved in protest for the first time. The massive Women's Marches on January 21 gave people confidence and left them wanting to do more. If your response to that is "Here's everything you don't know" or "This is how we've always done it," then you're going to miss this moment--and the costs of that right now are high.
We decided the best thing would be to call an open organizing meeting where we could discuss what to do and provide a way for people to get involved. We put together an announcement, invited Planned Parenthood to attend and posted it to the existing Facebook event.
- - - - - - - - - - - - - - - -
ON TWO days' notice, more than 50 people showed up to the meeting. I wasn't sure what to expect, but then people started talking, and it was like a dam had broken. One after another, people expressed the anger that has been building as we have watched our rights stripped away without a fight.
Some of the comments were: "I'm here because I'm angry, and I'm sick of losing. I'm here because I'm tired of being apologetic about abortion. Why does Planned Parenthood always talk about pap smears, but they won't talk about abortions? I feel like our side has been on the defensive for too long."
One woman said, "I came because I was on the original event page, and when I asked what we could do since we aren't counterprotesting, someone said to write a letter. I'm tired of being told to write letters that never get read. I'm done with writing letters!"
We openly discussed the fact that Planned Parenthood did not support counterprotests. At least half the people speaking up were or had been Planned Parenthood patients. Many had experience in reproductive justice organizations or had done clinic escorting.
Everyone expressed gratitude for what Planned Parenthood provides, but also disagreed with the organization's political strategy. After an hour of discussion, we unanimously decided to go ahead with a counterprotest and rally, and broke into working groups to plan for it.
Honestly, based on the social media discussion I had seen unfold, I didn't expect such a high level of agreement. I knew people wanted to fight back against the anti-abortion side, but I wasn't quite prepared for the level of intensity and confidence.
People knew that by organizing this counterprotest, we would face criticism. But they were prepared to do it anyways. Everyone understood this as not just a single action, but as a first step in fighting for a different strategy for the movement. This gave me confidence that we were doing the right thing, and that the women and men in the room represented a real and widespread sentiment. Part of our goal was to provide a visible outlet for that.
Nonetheless, I'm not sure we could have anticipated the amount of outright hostility we would face when we went ahead. A week later, it's still somewhat shocking to me.
I'm one of the moderators of the Facebook group we set up, called NYC for Abortion Rights, and within hours of announcing that we were going ahead with the counterprotests, we were deluged with attacks. Calling them "attacks" is not an exaggeration--many were personal and seemed deliberately hurtful.
We decided to moderate the page, both to protect people from verbal abuse and to keep a debate between those who should be allies from escalating and causing permanent damage. Instead, we tried to open lines of communication with Planned Parenthood staff to work together for a successful event, despite our disagreements.
Throughout the week, our group of about 50 kept in touch over e-mail and made all of our decisions collectively. When Planned Parenthood asked us to move our counterprotest away from the clinic, we discussed their proposal and decided together to continue with our plans.
The process of organizing together bolstered our confidence, as did the tremendous support we were receiving. Away from social media, I found that almost everyone I spoke with in person agreed with us. I attended several meetings that week--mostly new activists wanting to get involved in something. Person after person talked about why they were so glad we had organized this action.
- - - - - - - - - - - - - - - -
THIS IS why Planned Parenthood's central claim--that organizing counterrallies against the anti-choice side outside clinics would increase distress and confusion for patients--became increasingly unconvincing. If this was such a self-evident objection, then why wasn't it being raised by people we were talking to--many of whom had themselves been to clinics for an abortion or been patients at Planned Parenthood?
Many of the organizers were patients themselves. Most of us--and most of the people we talked to--believed that a pro-choice, pro-woman counterprotest would be welcomed, and not greeted by confusion from patients who couldn't tell the difference between the two sides.
What became clear over the course of the week is that those who argued against counterprotests in the name of protecting patients were ignoring and dismissing the voices of actual patients. They were so wedded to a particular strategy that they couldn't seem to hear what people were saying if it contradicted their established methods.
Many of the arguments against us became paternalistic--assuming a divide between patients and advocates. As activists, we were told, we had a different experience than patients who were immigrants, or for whom English was a second language, or who were working class, poor, young or otherwise vulnerable.
The problem with this argument is that our organizers and the people who came out to protest included all of these kinds of people--a fact that becomes clear if you watch videos of people speaking at our counterrally. Their case underestimates the potential for those most directly affected by attacks to be a part of a fight on their own behalf.
Despite criticisms that we were being selfish or failing to show respect for Planned Parenthood, our decision to organize a counterprotest really reflected a divide over strategy and what kind of movement we need to build.
This became evident at the counterprotest itself. We had argued that a policy of "non-engagement" with anti-choice protesters--something Planned Parenthood routinely counsels, which amounts to ignoring the bigots--meant that their presence at the clinic had become normalized, and that there was no political counter to them.
We were told that the right wing just wanted attention, so ignoring them was the best thing we could do--and that the best way to support patients was to allow trained clinic escorts to assist them.
- - - - - - - - - - - - - - - -
BOTH OF these propositions turned out to be fundamentally wrong. I was genuinely taken aback to discover that the Manhattan Planned Parenthood clinic has a regular anti-abortion protest of about 60 people on the first Saturday of every month--a church group performs a mass and sprays holy water on people. In 2015, 250 anti-abortion activists protested at the clinic.
Clearly, ignoring the antis hasn't made them go away. In fact, what I realized is that the bigots have a regular routine in place to try to harass and dissuade patients.
The anti-abortion activists set up in multiple locations. Usually, their main clinic presence of a couple dozen people sets up across the street from the front entrance. Because we were there first, they had to retreat around the corner.
They also had people handing out literature at the front door to patients going in. We were told by the clinic that as long as they weren't holding signs, the bigots were allowed to distribute the leaflets. If we hadn't been there, there would have been no one to counter this message.
Most disturbingly, there was a group of antis a little over a block away. They were not obviously protesters, but posed as people distributing helpful literature and assistance--all of which was encouraging women to reconsider abortion.
I found this out when I got a message midway through the protest asking me to have a clinic escort come over. When I went to ask for this, I was told by the clinic staff stationed outside that they were aware of the situation, but there was nothing they could do--escorts weren't allowed to leave the area directly in front of the clinic, which was monitored by security cameras.
Of course, clinics face hard questions of how to protect the safety of their workers and patients in an environment in which the anti-choice movement has terrorized them. If there is a reason that clinic escorts can't leave the front door, that is something I think we have to respect.
But it means the reality is that patients have to make their way through a multi-step gauntlet of bigots just to get to the front door and be assisted by clinic escorts. They must do so without any visible, political message telling them that they aren't alone, that they are supported, and that there is a movement ready to stand behind them.
In the face of these limitations for the clinic in how they can respond, it seems particularly problematic to tell counterprotesters that there is no role for them and that they should not be there.
From my experience, we played a really important role. We sent a group of close to 10 counterprotesters with big signs to confront the bigots down the block, and they promptly packed up and went away.
Overall, many patients seemed relieved and happy to see us, and many gave us the thumbs-up signs as they went past. Certainly all the fears that had been expressed about chaos or increased tensions did not materialize. If anything, it was the presence of as many 30 police officers, which Planned Parenthood asked for in response to our action, that could have increased tension or distress, particularly for patients from New York City's most vulnerable communities.
- - - - - - - - - - - - - - - -
MANY OF the debates around the counterprotest revolved narrowly around whether or not it would increase distress for patients.
We, of course, care about the safety and comfort of patients and made the case that our action would not be jeopardize this. However, our central point was that we need to build a confident, unapologetic movement for abortion and full reproductive rights that is willing to confront the right wherever it tried to advance.
We didn't choose to protest at clinics--the right did. If we ceded that territory, we were letting them win without a fight.
Just like ignoring the anti-abortion movement at the clinics hasn't made them go away, relying on a legal strategy and hoping for the support of Democratic politicians has done nothing to stop their advance.
The anti-abortion forces are confident and organized. They have pushed through hundreds of restrictions at the state level, and since 2011, we have lost more than 162 abortion providers--more than one every two weeks. Now they are trying to push forward at a national level, starting with defunding Planned Parenthood, but also aiming at even more sweeping limits to abortion rights.
The President of Susan B. Anthony's list, an anti-abortion group that put significant resources into Trump's presidential campaign, claims, "There's never been a time, ever, when the muscle of the pro-life movement has been so strong."
It is true that the pro-choice movement has been losing ground--both legislatively and in terms of public opinion. While nearly 60 percent of people support legalized abortion, even larger numbers--including more than half of those who consider themselves pro-choice--support significant restrictions on abortion. A majority believes that abortion is morally wrong and half believe that it has negative, lasting impacts on a woman's well-being, even though 95 percent of women say they do not regret their abortions. Anti-abortion arguments have gained ground with millennials--in stark contrast to their more left-wing positions on most other questions.
We can't lobby our way out of this situation. And we certainly can't hope for elections two or four years away to reverse our fortunes.
The problem isn't only that anti-abortion politicians who have gained office. Our side is on the defensive and has conceded many of the right wing's arguments--that there's something wrong with abortion, that we should work together to reduce abortion rates--while failing to advance an argument about why reproductive freedom is essential to women's equality.
- - - - - - - - - - - - - - - -
THE WOMEN'S Marches and the immediate response to the attacks on Planned Parenthood show there is a groundswell of potential opposition on our side. Mobilizing this will require not just a new political strategy, but also moving beyond organizing based on passive advocacy, toward one that directly mobilizes people who want to fight. The fact that Planned Parenthood in New York City has a long waiting list of people who want to become clinic escorts shows how many people want to be involved beyond the passive forms of support currently available.
There is no shortage of struggles to be fought or people who want to fight them. We can and should debate the young anti-choice activists who are recruiting on campuses. We can protest at and expose the fake abortion clinics that call themselves crisis pregnancy centers. We can drive the antis away from the clinics. We can organize teach-ins that arm our side with the arguments, and we can build protests and resistance that forces politicians to listen to us whether they want to or not.
But we also need to build collective, democratic spaces and organizations where new people can easily get involved, and where we can discuss and debate strategies to build larger, stronger grassroots campaigns.
This is one of the central lessons I took from this experience. By providing such a space, we discovered that there are large numbers of people, probably larger than we think, who agree with the need for a different strategy. This is what gave us the confidence to persist in the face of attacks from supporters of Planned Parenthood's political arm, which questioned our motives, credentials and even our basic right to have a different view.
This collective process is the only way we can determine the best ways to fight back. As we did around this protest, we will have many debates as we move forward, but we should welcome them as an indispensable part of building the renewed movement we so desperately need.
The Oroville Dam could still overflow, with catastrophic consequences, but this nightmare is the result of the system's twisted priorities, writes Nicole Colson.
Water from the Oroville Dam in Northern California rages down a spillway
AN EVACUATION order that forced tens of thousands of people to flee an area in Northern California along the Feather River on short notice this week has exposed the decrepit state of America's crumbling infrastructure--and the potentially catastrophic threat it poses to human life.
On the afternoon of February 12, authorities told some 180,000 people living in and around Oroville--a small city located 70 miles north of Sacramento--to immediately evacuate when it appeared that erosion from heavy storms would cause the imminent failure of a spillway of the massive Oroville Dam.
Oroville, the tallest dam in the U.S., holds back water from Lake Oroville, the state's second-largest reservoir and the main supplier of water to California's Central Valley farms and agricultural industry.
With the reservoir at 99 percent capacity, for the first time since its construction in 1968 authorities were forced to open an emergency spillway, releasing millions of cubic feet of water in order to ease the potential for a catastrophic failure.
Associated Press reported that earlier in the week, the unexpected erosion sent "chunks of concrete flying and creating a 200-foot-long, 30-foot-deep hole" that continued to grow, causing the evacuation order. "Engineers don't know what caused the cave-in that is expected to keep getting bigger until it reaches bedrock," noted the AP.
Had the spillway collapsed totally, a 30-foot-wall of water from the reservoir would have engulfed surrounding areas.
Thousands of residents grabbed what they could on minutes' notice, only to be stuck for hours on roads jammed with bumper-to-bumper traffic as they tried to flee. Hotels as far away as San Francisco--150 miles away--reported being inundated with calls.
Some 700 people were able to find cots at the Silver Dollar Fairgrounds in nearby Chico, with at least as many sleeping in their cars in the fairground parking lot. Others drove their cars to higher ground and slept in them, hoping they would be able to avoid floodwaters if the worst-case scenario did occur. Schools in the affected areas were closed at the beginning of the week.
Thankfully, hours after the evacuation order was given, the crisis had lessened, and the water level of Lake Oroville receded--at least temporarily.
But the threat of new storms to come this week has left authorities scrambling to shore up the damaged spillway--using dump trucks and helicopters to drop bags of rocks into the gaping hole in an attempt to prevent further erosion.
- - - - - - - - - - - - - - - -
THE CRISIS is illustrating the serious threat that long-neglected and crumbling infrastructure poses to human life and the environment, even in the world's wealthiest nation--especially in an era of changing and unpredictable weather patterns caused by climate change.
Bill Croyle, the Department of Water Resources' acting director, told the Associated Press, "This is mother nature kind of kicking us a few times here."
But it's not "Mother Nature" that's to blame. It's state officials who made a deliberate calculation years ago that the safety of residents wasn't worth the cost of updating and repairing the dam.
Environmental activists and local water officials have long warned about the potential for this exact scenario. SFGate.com reported that a 2002 analysis by the Yuba County Water Agency said use of the auxiliary spillway would cause "severe erosion" and deposit so much debris in the river that downstream structures could be damaged.
As the San Jose Mercury News reported, a coalition of environmental groups attempted in 2005 to:
persuade the federal government to require the state to cover the emergency spillway with concrete. But the agency that was relicensing the dam, the Federal Energy Regulatory Commission, declined after opposition from the state Department of Water Resources and the State Water Contractors, a group of 27 water agencies who were concerned about the cost.
"It's a damn good idea to have an emergency spillway," said Ron Stork, policy director with Friends of the River, a Sacramento environmental group that joined the Sierra Club and others to make the request. "But it's cheaper to not pour concrete there."
Despite this earlier warning, an inspection in July 2015 deemed the dam and spillway safe--but, noted SFGate.com, "experts did not walk the sloped surface to look for cracks and other potential problems, state records show." Authorities apparently settled for a "visual inspection from some distance [that] indicated no visible signs of concrete deficiencies."
Authorities now estimate that repairing the damaged spillway will take four to five months and cost $100 million or more.
That doesn't include other costs, like the potential loss of millions of salmon from the Feather River hatchery as a result of asphyxiation from the large amount of mud and debris released into the water. The Feather River hatchery produces half of all the salmon harvested by commercial and sport fishermen--and is a key component of California's multimillion-dollar salmon industry.
- - - - - - - - - - - - - - - -
THIS NEAR-catastrophe highlights the decrepit state of much of U.S. infrastructure and the ridiculous priorities of a society which is willing to spend billions on a "war on terror," while simultaneously neglecting something as important as a structure whose failure could potentially cause the deaths of tens of thousands of people.
Last December, Barack Obama signed the Water Infrastructure Improvements for the Nation Act (WIIN), a $12 billion infrastructure package for water projects around the country. But according to the Association of State Dam Safety Officials, rehabilitating and repairing federal dams will cost more than $57 billion.
In its last report in 2013, the American Society of Civil Engineers, which publishes a comprehensive report card on the state of America's infrastructure every four years, graded American infrastructure as a "D+". The group estimates that by the year 2020, the cumulative investment needed to maintain, repair and update infrastructure in the U.S. will top $3.6 trillion.
When it comes to the country's dams, the report found that:
Dams...earned a grade of D. The average age of the 84,000 dams in the country is 52 years old. The nation's dams are aging and the number of high-hazard dams is on the rise. Many of these dams were built as low-hazard dams protecting undeveloped agricultural land. However, with an increasing population and greater development below dams, the overall number of high-hazard dams continues to increase, to nearly 14,000 in 2012. The number of deficient dams is currently more than 4,000.
As climate change produces more severe and unpredictable weather, the stress placed on the country's aging water system will only become more pronounced. California, which suffered a record five-year drought, has now had the rainiest year in its history, contributing to the recent crisis. And it is considered one of the most vigilant states when it comes to maintaining dams and water systems.
Ordinary people suffer the consequences when infrastructure that has been neglected for decades is overwhelmed.
"We are not maintaining the water infrastructure adequately," Peter H. Gleick, a founder of the Pacific Institute, told the New York Times. "We are not maintaining it in Flint, Mich., and we are not maintaining it at our big dams in California. We need to spend more money and time on maintaining these."
Scott McLemee looks back at the opening weeks of the Trump administration, in an article written for the German magazine Marx21 and published at New Politics.
Attendees of an alt-right conference in Washington, D.C., perform the Nazi salute to celebrate Trump's election
DONALD TRUMP likes to think that he has not only won an election, but "built a movement." And to judge by his first week in the White House, he has--just not in the way he thinks.
One day after the smallest public attendance at a presidential inauguration that anyone can remember, roughly a half million people turned out for the Women's March on Washington to denounce Trump's agenda of immigrant-bashing, misogyny and attacks on reproductive rights. It was perhaps the largest protest since the antiwar rallies during George W. Bush's second term, and a number of speakers expressed solidarity with the Black Lives Matter movement against racist police violence. On the same day as the march, hundreds of "sister" events were held at the same time in cities throughout the U.S. and around the world (including Berlin, Munich and Frankfurt) with estimates of up to 3 million participants in total.
In short, Donald Trump may well be on the way to inspiring a new mass radicalization on a scale that American leftists have only dreamt of in recent decades. In 2016, millions of first-time voters came out in support of Bernie Sanders, a Democratic Party candidate who identifies himself as a socialist and has called for "political revolution"--a concept left vaguely defined, to be sure, but one that resonates with a generation that has grown up with no reason to think that either the world's economy or its environment can take much more of capitalism's "invisible hand."
- - - - - - - - - - - - - - - -
JUST TWO months ago, the movement most associated with Trump's name was the so-called "alt-right" of extreme reactionaries, including the neo-fascists who joined Richard Spencer in chanting "Hail Trump!" during a meeting of the National Policy Institute, a white supremacist "think tank." Another leading alt-right figure, Trump's campaign manager Steve Bannon, now serves as the president's chief strategist and senior counselor, and has undoubtedly been the adviser urging Trump to think of his electoral success as proof that he is at the leader of a mass movement.
It is something Trump himself quite desperately wants to believe. Anyone paying attention to his campaign could see how deeply he craved the adulation of crowds that laughed, cheered and expressed rage in time to his moods. Someone once called politics "show business for ugly people." By that standard, Trump is a star ne plus ultra.
But he is far from knowledgeable about affairs of state, much less about the complex ideological terrain of American conservatism. He enters office with a Congress dominated by a Republican Party that--as one of its leading strategists put it--only needs the president to have enough fingers to sign the legislation it gives him. Trump qualifies in that regard, so the Republican establishment thinks it can work with him. They can all agree on dismantling Obama's health-care reform, cutting taxes, privatizing public education, restricting the rights of women and LGBT people and removing or preventing government regulation of the economy (especially of anything based on a recognition of man-made climate change), for example.
Most of this has been central to the Republican agenda for decades, along with support for military spending and an aggressive imperialist foreign policy. Carefully avoided, for the most part, is any explicit reference to race. The late Lee Atwater, an influential Republican figure, once explained that the old-fashioned race-baiting had become unpopular and ineffective, so the trick was to be more subtle. "So you say stuff like, uh, forced busing, states' rights, and all that stuff," he told a political scientist, "and you're getting so abstract. Now, you're talking about cutting taxes, and all these things you're talking about are totally economic things and a byproduct of them is, Blacks get hurt worse than whites...'We want to cut this' is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than 'Nigger, nigger.'"
Trump's political ascent began with a variant on this tactic: he promoted the idea that Barack Obama could not prove that he was actually a U.S. citizen. But his campaign rhetoric against Mexican and Muslim immigrants was less "abstract" (to borrow Atwater's term) about appealing to racist sentiments. This proved embarrassing to Republican leaders, but they were hardly in the position of taking a principled stand against it. At the same time, a tension within the American right had intensified under the impact of the world economic crisis: Republican propaganda might celebrate the wealthy as "job creators," proclaim the virtues of small business ownership, and declare rural towns to be "the real America." But the policies they actually advanced (and that the Democratic party under Clinton and Obama largely supported) have heightened economic uncertainty and inequality to extremes not seen since the Great Depression.
- - - - - - - - - - - - - - - -
SPENCER, BANNON and other alt-rightists understand their role as building up mechanisms of political and social authority over a population that will only grow more ethnically and cultural heterogeneous in the next two decades--while also being unlikely to recover its standard of living through the pure magic of the free market. They reject both neoliberalism and Atwater-style coyness about channeling racial hostilities.
Insofar as the conservative establishment has a body of ideas to shore it up, the influences come from a blend of Ayn Rand's celebration of "the virtue of selfishness" with a belief that God dictated the Constitution, or at least had a hand in the outline. By contrast, the more sophisticated of the alt-right strategists are acquainted with Alain de Benoist's ethnic communitarianism and Carl Schmitt's understanding of politics as defined by the sovereign's combat with an enemy. And they see most of the Republican leadership as being an enemy.
Donald Trump is no doubt entirely innocent of such esoteric concepts. He spent his first week in a simmering rage over slights by the media and fuming from an awareness that he entered office with the lowest level of public confidence of any incoming president (only to lose another three points since then). But he sits astride the fault line between members of Congress who see themselves as Ronald Reagan's political heirs, on the one side, and those who share Bannon's aspiration to destroy the Republican Party and replace it with something more vicious and brutal.
It is, in other words, a precarious and unstable conjuncture and one that can only grow more volatile as far-right campaigns mobilize elsewhere in the world. One thing that Marxists bring to the situation is an understanding that capitalism's crises are always international--throwing down to us the challenge of finding ways to learn from and unify the forces from below that resist them. Millions of people in the United States are thinking about how to shut down Trump's assaults on vulnerable segments of the population. And seeing millions more around the world take to the street in solidarity can only help as we relearn the truth of the old Wobbly slogan: An Injury to One is an Injury to All.
First published in German at Marx21 and in English at New Politics.
This Friday, EFF lawyers and other experts from the field will lead a conversation about constitutional law at the Internet Archive. The event is open to the public, totally free, and will stream live on Facebook for anybody who can't make it in person.
Come learn about censorship, surveillance, digital search and seizure, and more. Plus, if you can be there in person, there will be a potluck emphasizing apple pie.
Donations are welcome but not required. Details below.
When: Friday, February 17th 5:30pm-9pm (program 6-8)
- Cindy Cohn – Executive Director of EFF
- Corynne McSherry – Legal Director of EFF
- Stephanie Lacambra – Staff Attorney at EFF
- Victoria Baranetsky – First Look Media Technology Legal Fellow for the Reporter’s Committee for Freedom of the Press
- Geoff King – Lecturer at UC Berkeley, and Non-Residential Fellow at Stanford Center for Internet and Society
- Bill Fernholz – Lecturer In Residence at Berkeley Law
Share this: Join EFF
A group of Mexican nutrition policy makers and public health workers have been the latest targets of government malware attacks. According to the New York Times, several public health advocates were targeted by spyware developed by NSO Group, a surveillance software company that sells its products exclusively to governments. The targets were all vocal proponents of Mexico’s 2014 soda tax—a regulation that the soda industry saw as a threat to its commercial interests in Mexico.
It's no secret that Mexico has a deeply-rooted culture of secrecy surrounding surveillance. Mexican digital rights NGO, Red en Defensa de los Derechos Digitales, has been raising awareness about the lack of control of communications surveillance in the country and advocating for surveillance law that complies with human rights standards. Today, EFF joins more than 40 organizations in expressing our concern about the use of highly intrusive software against these public health advocates and demand that the Mexican government identify and punish those responsible for conducting illegal surveillance in Mexico.
Here is the text of the letter:
On July 11, an investigation by the Citizen Lab at the University of Toronto’s Munk School of Global Affairs and the New York Times revealed evidence that Dr. Simon Barquera, researcher at Mexico’s Public Health National Institute, Alejandro Calvillo, Director at El Poder del Consumidor and Luis Manuel Encarnación, Coordinator of ContraPESO Coalition received targeted attacks with the objective of infecting their mobile devices with surveillance malware exclusively sold to governments by the company NSO Group.
According to the evidence, the attacks are related to the target’s activities in defense of public health, particularly advocating for a soda-tax and criticizing deficient food labeling regulation. In the light of these revelations, the signatory national and international civil society organizations:
1. Condemn the illegal surveillance revealed and show our solidarity and stand with the academic institutions and civil society organizations targeted with these attacks.
2. Express our concern about the Mexican government’s use of highly intrusive software such as the Pegasus malware commercialized by the NSO Group, particularly against researchers and civil society organizations. This type of surveillance malware that exploits unknown security vulnerabilities (zero-day) in commercial software and products to obtain an absolute control of a device, severely compromises the right to privacy, especially when there is no legal controls or democratic oversight of state surveillance.
3. Demand the government of Mexico to stop the threats and surveillance against researchers and civil society organizations and call for an immediate investigation to identify and punish the officials responsible for illegal surveillance in Mexico.
4. Call international organizations, governments around the world and the international community as a whole, to investigate the activities of the NSO Group and other companies that sell surveillance capabilities to Mexico, a country with a record of human rights abuses.
5. Express our special concern regarding this new instance of harassment against researchers and health activists that affect the interests of the food and beverage industries. We call the industry to clarify its involvement or knowledge of the revealed surveillance and to publicly reject any act of intimidation against human rights defenders.
Asociación Nacional de la Prensa de Bolivia (ANP)
Asociación para el Progreso de las Comunicaciones (APC)
Asociación por los Derechos Civiles (ADC)
Association of Caribbean Media Workers
Australian Privacy Foundation
Centro Nacional de Comunicación Social AC (Cencos)
Centro de Estudios Constitucionales y en Derechos Humanos de Rosario
Centro de Reportes Informativos Sobre Guatemala (CERIGUA)
Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, A.C.(CMPDH)
Electronic Frontier Foundation (EFF)
Espacio Público, Venezuela
Fundación para la Libertad de Prensa (FLIP)
Fundar, Centro de Análisis e Investigación
Intercambio Internacional por la Libertad de Expresión (IFEX-ALC)
Instituto de Liderazgo Simone de Beauvoir (ILSB)
Instituto de Prensa y Libertad de Expresión (IPLEX)
Instituto Prensa y Sociedad (IPYS)
Organización Fraternal Negra Hondureña (OFRANEH)
Patient Privacy Rights
Public KnowledgeRed en Defensa de los Derechos Digitales (R3D)
Renata Aquino Ribeiro, Researcher E.I. Collective
Reporteros Sin Fronteras
SonTusDatos Artículo 12, A.C.
Sursiendo, Comunicación y Cultura Digital (Chiapas, MX)
Usuarios Digitales, Ecuador
Washington Office on Latin America (WOLA)
Share this: Join EFF
Feb 16, 2017 – Keith Ellison, co-chair of the Congressional Progressive Caucus, attends a news conference in the Capitol Visitor Center where he and other members criticized many of President-elect Trump’s choices for cabinet positions, December 08, 2016. (AP / Tom Williams / CQ Roll Call)
Donald Trump’s provocations have stirred a resistance that is ferocious, diverse, and growing, shaking Republicans and stiffening Democratic spines. Raucous town-hall meetings targeting members of Congress in their home districts are making the fabled Tea Party protests of old look like, well, tea parties. This resistance is vital but not sufficient. While it dramatizes what we are against, our challenge is to integrate it into a demand for all the progressive changes we are for.
The danger here is that the default position of resistance is reversion, a return to what was. As Trump assails all things Obama, Obama’s agenda becomes what we have to protect. Trump postures about repealing the Affordable Care Act; Democrats defend it. Trump attacks the Dodd-Frank banking regulations; Democrats protect them. But this can easily descend into the ridiculous: The Trans-Pacific Partnership isn’t suddenly a good trade deal simply because Trump opposes it. Better relations with Russia aren’t a bad thing simply because Trump proposes it.
Democrats need to fight, but they need to fight for something.
This reflexive defense of the recent status quo is bolstered by inertia, especially at the top of the party. The House Democratic leaders—all septuagenarians—were easily re-elected to their party posts. In the Senate, New York’s Chuck Schumer took over from Harry Reid as minority leader, as long planned. The big outside money is flowing to the same operators (Guy Cecil and David Brock) and the same big institutions (the Center for American Progress, Priorities USA) as before. If Representative Keith Ellison’s effort to head the DNC is defeated, the party structure itself will remain largely in the hands of those who eviscerated it (or their designees). Not surprisingly, these longtime party leaders are invested in what was accomplished under Obama, eager to defend it against Trump’s calumnies, and intent on returning to power under similar terms.
But this reflex ignores an uncomfortable but inescapable reality: Trump is in the White House in large part because of the establishment’s failures over the past decades. What economist Paul Krugman once called the “long depression” features a slow recovery that has not benefited working people. We remain mired in endless wars. The country’s inequality is more extreme, its insecurity more widespread, its institutional racism still entrenched. Money continues to corrupts our politics. Senator Elizabeth Warren got it exactly right when she addressed the Progressive Congress strategy summit on February 4: “Our moment of crisis didn’t begin with the election of Donald Trump. We were already in crisis…. Men like Donald Trump come to power when countries are already in deep trouble, when economies are already deeply flawed, when people in those countries begin to lose hope and look for someone else to blame.”
Democrats and citizens of conscience have to stand up and fight against Trump, but their opposition should be tied to a bold, clear agenda that offers real solutions that will make a real difference in the lives of the millions of struggling Americans. For progressives, that requires not simply taking on Trump, but challenging Democrats who don’t get it.
Here the right provides an object lesson. With Democrats in control of the White House and Congress in 2008, the Tea Party insurgency, fueled by the dark money of rabid right-wing billionaires, went after sitting Republicans as well as Democrats. The Tea Party produced some embarrassing candidates—remember Christine O’Donnell and Richard Mourdock and Todd Akin?—that kicked away a few Senate seats that Republicans might have won. And yet in 2014, the insurgents took out House majority leader Eric Cantor in a stunning upset. Pundits argued that the Tea Party would doom the Republicans to permanent minority status, and the party establishment raised millions to contain the damage. But eventually, GOP politicians started to listen. Now, the Republican Party holds more power than at any time within memory, while championing an agenda far more reactionary than anything Ronald Reagan would have imagined.
On our side, the drive to put forth a program for reconstruction has already begun, led by progressive senators like Warren, Bernie Sanders, Jeff Merkley, and Sherrod Brown. In the House, the Congressional Progressive Caucus, energized by new members like Pramila Jayapal and Jamie Raskin, can provide a voice calling for infrastructure investments, tax reform, balanced trade, and more. Blue states and cities are already building parts of the progressive alternative, particularly in efforts to raise the minimum wage, drive a green-jobs agenda, and increase taxes on the rich to pay for public investments. Meanwhile, the activists of Our Revolution have begun mobilizing to take over state chapters of the Democratic Party. Groups like Our Revolution, People’s Action, and the Working Families Party, plus networks like Democrats for America and MoveOn.org, will hopefully coordinate to recruit and support candidates at every level of government. As the fight against Trump escalates, DINOs—Democrats in name only—will face greater pressure from these activists, and perhaps primary challenges as well.
Much of the party’s establishment, backed by some very deep pockets, will decry these efforts as divisive in the face of what they see as Trump’s unifying threat. This is a denial as purblind as Trump’s denial of climate change. Democrats need to fight, but they need to fight for something, not just against the barbarians. They need to be the party of fundamental change, not the party of restoration. For that to happen, the activist base of the party has to challenge sitting officeholders not simply to stiffen their opposition to Trump, but to get with the program.
I am thrilled to announce the appointment of two new members of the Creative Commons Board of Directors: Molly Shaffer Van Houweling and Ruth Okediji. In addition, the board has selected Molly Shaffer Van Houweling to serve as Board Chair. Molly is a brilliant and accomplished legal academic with an extensive history with Creative Commons and the open movement. Ruth is a highly esteemed international copyright and intellectual property lawyer, professor, and author. She is also a keynote speaker at this year’s Creative Commons global summit.
Molly was Creative Commons’ first Executive Director from 2001-2002. As one of the key members of the original CC team, she was critical in designing CC’s legal infrastructure and drafting the legal language for Creative Commons copyright licenses. Since then, she has served in various roles on the CC Board of Directors and Advisory Council. She is a Professor of Law and Associate Dean at University of California at Berkeley, School of Law, where she has taught since 2005. Her work in internet and technology policy and copyright is vast, and she has held fellowships at Harvard’s Berkman Center and Stanford’s Center for Internet and Society. She also serves on the board of directors at Author’s Alliance and was an early employee at ICANN. Molly is also one of the fastest women in the world on a bicycle, setting a 2015 World Record by cycling 46.273 km in an hour. She is also a five-time UCI Amateur Road World Champion.
Ruth Okediji is William L. Prosser professor of law at the University of Minnesota. Ruth was also part of the process of negotiating the recently approved Marrakesh treaty; she joined the Nigerian delegation and helped lead the African Group. Her upcoming book, Copyright Law in an Age of Limitations and Exceptions, will be published in March by Cambridge University Press. Professor Okediji is the author of several books on copyright and intellectual property and is regularly cited for her work on IP in developing countries. She is an editor and reviewer of the Journal of World Intellectual Property, and has chaired the Association of American Law Schools Committee on Law and Computers, its Committee on Intellectual Property, and its Nominating Committee for Officers and Members of the Executive Committee.
CC’s outgoing board chair, Paul Brest, will remain on the board for the balance of the year to facilitate the transition for Molly. Our current vice chair Chris Thorne, was reinstated. Paul has been a tremendous board chair, guiding CC through many challenges and new opportunities, and we would like to thank him for his service to the organization. I’m personally grateful for his friendship, guidance and ongoing support.
CC is very excited to welcome Molly and Ruth to the Board of Directors. The accomplishments of these remarkable women as lawyers, academics, and trusted advisors to Creative Commons cannot be overstated. On behalf of the entire CC board, I am thrilled to welcome them in their new roles.
The post Announcing CC’s new board chair, Molly Shaffer Van Houweling, and newest board member, Ruth Okediji appeared first on Creative Commons.