> we’re adding a clause that commits us (when possible) to first notify the user if we’re legally compelled by a litigant or government to disclose a user’s private information
The only additional thing I would like to see is an additional commitment to use all legal means to fight gag orders when they're present.
Do you happen to know what these means are? For a national security letter my understanding is that the company can't tell anyone and for other lesser gag orders it might be impossible to even contact the EFF for assistance.
There are two things that should be done to fight national security letters and gag orders:
1) Sue the US government to fight the order.
2) Use technical workarounds to inform your users without breaking the law. For example, rsync.net has a signed notice that they haven't been served a warrant: http://www.rsync.net/resources/notices/canary.txt
While clever in a hacker sense, I see no reason why the government can't compel rsync.net to continue updating the canary by just yelling "national security" loudly enough.
How do you imagine that working? There's a law that allows them to ban disclosure under penalty of law. Is there some other law that allows them to compel people to lie?
There's no law or constitutional amendment _preventing_ the government from compelling people to lie, is there?
In the contents of an already-secret national security letter sent to rsync.net, what prevents the government from saying "You may not tell anyone about this letter; this means you must continue updating the canary as if you hadn't received this letter"?
The rule of law and tenth amendment mean that the federal government can't just do whatever the president wants. They have to be authorized specifically by Congress, and event then there are limits.
Congress, in the USA PATRIOT Improvement and Reauthorization Act, has said that the feds can ask for records, and can additionally forbid people to say that they have been asked. It doesn't say they can compel people to lie.
If the government orders them to do it, they can take the government to court, or they can just say no. The government then has to arrest them and try to convict them. Either way, a court would have to decide for sure. In this case, probably the Supreme Court, in that compelled speech has often been ruled as against the first amendment.
If the law that prevents you from telling someone you've received an NSL is considered not a violation of your right to free speech, I see no reason why it would be _more_ of a violation of your right to free speech for the government under the same law to require you to continue claiming you have not received an NSL.
After all, you had an easy way to not be in the position where the government is compelling you to say things -- you just could have not done the canary thing. Now that you're making a certain well-defined type of speech every week, the impact on your free speech rights to require you to continue to make that type of speech is pretty small, and I think you're in legally shaky grounds if you think that a judge or court would consider that much more of an impact on your free speech rights than the usual NSL gag order.
I agree that Congress could write a law that allows them to compel speech, and I agree that it might eventually be found constitutional. They didn't write that law, though, and speech that is both compelled and false is a different thing under the law than shutting up.
The government can't just order you to do whatever they like. That's what rule of law means. Nobody is obliged to obey someone's interpretation of the spirit of some law, just the letter.
This is fantastic news! For too long have larger companies used the looming threat of legal action to discourage legitimate competition from smaller companies. I'd never heard of Chilling Effects before this, but now I'm tempted to put all of the C&D's we've collected (and will continue to collect) into it.
Google seems to relay the majority of their legal notices there for many years now [1]. That said, the site didn't change at all in those years, either. Just an information trove rotting away.
[1] You can try searching for "Amy Weber" on Google (random query I pulled from one of the complaints, semi-nsfw). For me, it shows multiple links to CE with respective DMCA-esque requests made to german governmental bodies. You aren't affected by those in the USA, but theres a DMCA one, too.
The site hasn't changed much (and dear god is it still slow), but it has been pretty fundamental in a number of papers on copyright. The database will hopefully be able to bring actual data to bear on future copyright reforms...if that ever happens.
I'm surprised at the number of people who haven't heard of the site before. If a link has been removed from Google, it will replace it with a notice that a link was removed and and link to the actual takedown request in the Chilling Effects database (which includes the link that was taken down). I believe they started doing this when they were forced to take down the Scientology links years ago.
Since we now know Microsoft is one of the top DMCA notice issuers to google, if you pick a query like
you'll see a bunch of the notices down at the bottom. If you click through to a notice, I don't think you can figure out which link was actually removed for your particular query since the notices can apparently contain hundreds of links, but it is at least a decent measure of transparency for the process.
I do not understand why a payment processing company would be receiving general cease & desist requests or DMCA takedown requests. What am I missing?
EDIT: Tried to clarify that I am not limiting the scope of the question to DMCA takedowns and DMCA cease and desists. Rather DMCA takedowns and general cease and desists.
Companies trying to shut down a website will often go after anything they can connected to that site: the service itself, its hosting service, their upstream bandwidth provider, their payment processor, and anything else they think they can get away with.
If you look, you'll see that the DMCA is not mentioned anywhere in this post. They're receiving demands that they stop serving certain users, not to take down copyrighted content.
Courts will subpoena financial records. I don't know the details not being the one that provides the information but I know we have received requests in the past.
I'm going to see if we can set up the same thing. I wasn't aware of this service but definitely support the disclosure when it can be legally provided.
Seems like a wise decision. First I've heard of Chilling Effects and it sounds interesting. Seems like an opportunity there for someone to make it international as it is very US-specific. Calling all IP lawyers!
First I've heard of Chilling Effects. Their website (http://chillingeffects.org) looks like a conspiracy theory website, but I guess take-down requests are rather conspiratorial.
It's never as simple as a designer offering a redesign (have to coordinate a CMS, approval, etc). It'd be best if the people involved took an interest in it.
> we’re adding a clause that commits us (when possible) to first notify the user if we’re legally compelled by a litigant or government to disclose a user’s private information
The only additional thing I would like to see is an additional commitment to use all legal means to fight gag orders when they're present.