Rechten

We’ve been saying it for 20 years, and it remains true now more than ever: the internet is an essential service. It enables people to build and create communities, shed light on injustices, and acquire vital knowledge that might not otherwise be available. And access to it becomes even more imperative in circumstances where being able to communicate and share real-time information directly with the people you trust is instrumental to personal safety and survival. More specifically, during wartime and conflict, internet and phone services enable the communication of information between people in challenging situations, as well as the reporting by on-the-ground journalists and ordinary people of the news. 

Unfortunately, governments across the world are very aware of their power to cut off this crucial lifeline, and frequently undertake targeted initiatives to do so. These internet shutdowns have become a blunt instrument that aid state violence and inhibit free speech, and are routinely deployed in direct contravention of human rights and civil liberties.

And this is not a one-dimensional situation. Nearly twenty years after the world’s first total internet shutdowns, this draconian measure is no longer the sole domain of authoritarian states but has become a favorite of a diverse set of governments across three continents. For example:

In Iran, the government has been suppressing internet access for many years. In the past two years in particular, people of Iran have suffered repeated internet and social media blackouts following an activist movement that blossomed after the death of Mahsa Amini, a woman murdered in police custody for refusing to wear a hijab. The movement gained global attention and in response, the Iranian government rushed to control both the public narrative and organizing efforts by banning social media, and sometimes cutting off internet access altogether. 

In Sudan, authorities have enacted a total telecommunications blackout during a massive conflict and displacement crisis. Shutting down the internet is a deliberate strategy blocking the flow of information that brings visibility to the crisis and prevents humanitarian aid from supporting populations endangered by the conflict. The communications blackout has extended for weeks, and in response a global campaign #KeepItOn has formed to put pressure on the Sudanese government to restore its peoples' access to these vital services. More than 300 global humanitarian organizations have signed on to support #KeepItOn.

And in Palestine, where the Israeli government exercises near-total control over both wired internet and mobile phone infrastructure, Palestinians in Gaza have experienced repeated internet blackouts inflicted by the Israeli authorities. The latest blackout in January 2024 occurred amid a widespread crackdown by the Israeli government on digital rights—including censorship, surveillance, and arrests—and amid accusations of bias and unwarranted censorship by social media platforms. On that occasion, the internet was restored after calls from civil society and nations, including the U.S. As we’ve noted, internet shutdowns impede residents' ability to access and share resources and information, as well as the ability of residents and journalists to document and call attention to the situation on the ground—more necessary than ever given that a total of 83 journalists have been killed in the conflict so far. 

Given that all of the internet cables connecting Gaza to the outside world go through Israel, the Israeli Ministry of Communications has the ability to cut off Palestinians’ access with ease. The Ministry also allocates spectrum to cell phone companies; in 2015 we wrote about an agreement that delivered 3G to Palestinians years later than the rest of the world. In 2022, President Biden offered to upgrade the West Bank and Gaza to 4G, but the initiative stalled. While some Palestinians are able to circumvent the blackout by utilizing Israeli SIM cards (which are difficult to obtain) or Egyptian eSIMs, these workarounds are not solutions to the larger problem of blackouts, which the National Security Council has said: “[deprive] people from accessing lifesaving information, while also undermining first responders and other humanitarian actors’ ability to operate and to do so safely.”

Access to internet infrastructure is essential, in wartime as in peacetime. In light of these numerous blackouts, we remain concerned about the control that authorities are able to exercise over the ability of millions of people to communicate. It is imperative that people’s access to the internet remains protected, regardless of how user platforms and internet companies transform over time. We continue to shout this, again and again, because it needs to be restated, and unfortunately today there are ever more examples of it happening before our eyes.

Politie en justitie moeten voorkomen dat zij inbreuk maken op het verschoningsrecht van advocaten, zodra het vermoeden bestaat dat er bij in beslag genomen gegevens geheimhouderinformatie staat. Als een officier een machting vraagt bij een rechter-commissaris voor inbeslagname bij een communicatiedienst, moet hij vermelden of zich hierin misschien geheimhoudergegevens bevinden. Aldus de hoge Raad dinsdag in antwoord op een aantal prejudiciële vragen van het gerechtshof in Den Bosch.

De Hoge Raad geeft ook aan dat de rechter-commissaris aan een machtiging voorwaarden kan verbinden, bijvoorbeeld over de manier waarop de vermoedelijke geheimhoudergegevens moeten worden gefilterd. Hierover mag de verschoningsgerechtigde een standpunt innemen, nadat door justitie ook met een ‘gezaghebbende vertegenwoordiger uit de beroepsgroep’ is gesproken. Als de filtering kan plaatsvinden zonder dat de gegevens zelf hoeven worden ingezien, mag de officier dat zelf doen.

De prejudiciële vragen van het hof komen voort uit een zaak uit 2013, waarin rechercheurs van de FIOD onder leiding van het OM in Den Bosch onderzoek deden naar vermogensbeheerder BOX Consultants. Dat was op verdenking van valsheid in geschrift en witwassen. In 2015 nam het bedrijf daarom advocaat Daan Doorenbos van Stibbe in de arm.

Achteraf bleek dat de FIOD in dat jaar het email-verkeer van BOX Consultants had gevorderd bij het hostingbedrijf en dit ook had ontvangen. Hieronder vielen tevens mails tussen Box en Stibbe die onder het verschoningsrecht vallen.

De officieren van justitie kregen uit de inhoud daarvan de indruk dat Stibbe misbruik wilde maken van het verschoningsrecht, omdat zij vermoedden dat de advocaten een onderzoek door een accountant onder haar naam wilde laten uitvoeren.

Daarna werd door de Staat advies aan de landsadvocaat gevraagd, over een mogelijk tuchtrechtelijke onderzoek tegen dat vermeende misbruik. Daarop werden 150 ‘vertrouwelijke’ emails uit het verkeer bij een geheimhouderofficier ondergebracht, die er 50 van selecteerde als geheimhouderstukken. Intussen werd wel een onderzoek gestart naar het door Stibbe voor haar cliënt ingeschakelde accountantskantoor BDO.

Hierop diende Stibbe-advocaat Tim de Greve een klaagschrift in, dat de rechtbank Oost-Brabant als gegrond verklaarde. Ze gelastte dat alle bij het accountantsonderzoek ingenomen relevante stukken, als ‘geheimhouderstukken’ moesten worden aangemerkt. In deze zaak volgden nog de nodige strafrechtelijke en civiele procedures.

In een tussenarrest van 2 mei 2023 heeft het hof Den Bosch vastgesteld dat het OM het verschoningsrecht van de advocaten van Box op structurele wijze heeft geschonden. Tevens stelde het hof de prejudiciële vragen aan de Hoge Raad.

Afgelopen najaar gaf het OM toe dat het het verschoningsrecht had geschonden, en seponeerde het de zaak tegen Box Consultants.

Het bericht HR: grotere rol rechter-commissaris bij verschoningsrecht geheimhouders verscheen eerst op Mr. Online.

OpenAI en topman Sam Altman worden aangeklaagd door Elon Musk, meldde BNR onlangs. Zij zouden afspraken hebben geschonden met Musk als medeoprichter van OpenAI. Die organisatie is opgericht als een nonprofit die Artificial General Intelligence op verantwoorde wijze zou realiseren, maar is nu verworden tot een Microsoft-puppet die alleen maar geld wil verdienen. Of zoiets.

Normaal zou je zeggen: je was inderdaad medeoprichter maar je bent weggegaan, dus helaas voor jou wij doen wat wij nu willen. Echter, als je aandeelhouder bent, dan kun je nog steeds klagen over zulke dingen want dat kan de koers aantasten. Alleen is OpenAI dus een stichting (nonprofit) en geen bedrijf – het bedrijf is een dochter van de stichting, en afspraken zoals met Microsoft zijn met die dochter.

Musk heeft niet echt een contract met OpenAI, dus wat dat betreft staat de claim ietwat op lemen voeten. Er waren wel wat emails met eisen en voorstellen, maar geraadpleegde juristen zijn skeptisch: While contracts can be formed through a series of emails, the lawsuit cites an email that appears to look like a proposal and a “one-sided discussion,” said Brian Quinn, a law professor at Boston College Law School. “To the extent Musk is claiming that the single e-mail in Exhibit 2 is the ‘contract,’ he will fall well short,” Quinn said. Er is echter nog een interessant punt in die klacht van Musk: “GPT-4 is an AGI algorithm, and hence expressly outside the scope of Microsoft’s September 2020 exclusive license with OpenAI.” AGI in deze context staat dus voor “Artificial General Intelligence”, zeg maar een algemeen gerichte AI die ongeveer op mensniveau kan denken en doen.

AGI is iets waar Musk wakker van ligt, het was een van de redenen om OpenAI mede op te richten: verantwoorde ontwikkeling van AGI en niet zomaar voor de poen snel wat op de markt brengen. En dat is volgens mij de onderliggende boosheid die deze rechtszaak stimuleert. (Naast dat OpenAI had beloofd alle broncodes en parameters open te maken, wat dus niet gebeurd is.)

De constructie van OpenAI is namelijk dat ze pre-AGI technologie mag verkopen, maar niet AGI technologie. Microsoft heeft (exclusieve) toegang tot diverse AI modellen van OpenAI, en deel van de klacht van Musk is dus dat dat niet mag omdat GPT4 een AGI is, en anders in ieder geval het eerstvolgende model wel. Alleen: volgens de statuten bepaalt de raad van bestuur van OpenAI wanneer iets AGI is. Het is dus de vraag wat de rechter daar over mag zeggen, omdat een bestuur in principe zelf beslist.

Arnoud

Het bericht Hola, nu moet de rechtbank gaan bepalen of ChatGPT een superintelligentie is? verscheen eerst op Ius Mentis.

Imagine a world in which the internet is first and foremost about empowering people, not big corporations and government. In that world, government does “after-action” analyses to make sure its tech regulations are working as intended, recruits experienced technologists as advisors, and enforces real accountability for intelligence and law enforcement programs.

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(You can also find this episode on the Internet Archive and on YouTube.)

Ron Wyden has spent decades working toward that world, first as a congressman and now as Oregon’s senior U.S. Senator. Long among Congress’ most tech-savvy lawmakers, he helped write the law that shaped and protects the internet as we know it, and he has fought tirelessly against warrantless surveillance of Americans’ telecommunications data. Wyden speaks with EFF’s Cindy Cohn and Jason Kelley about his “I squared” —individuals and innovation—legislative approach to foster an internet that benefits everyone. 

In this episode you’ll learn about: 

• How a lot of the worrisome online content that critics blame on Section 230 is actually protected by the First Amendment 
• Requiring intelligence and law enforcement agencies to get warrants before obtaining Americans’ private telecommunications data 
• Why “foreign” is the most important word in “Foreign Intelligence Surveillance Act” 
• Making government officials understand national security isn’t heightened by reducing privacy 
• Protecting women from having their personal data weaponized against them 

U.S. Sen. Ron Wyden, D-OR, has served in the Senate since 1996; he was elected to his current six-year term in 2022. He chairs the Senate Finance Committee, and serves on the Energy and Natural Resources Committee, the Budget Committee, and the Select Committee on Intelligence; he also is the lead Senate Democrat on the Joint Committee on Taxation. His relentless defiance of the national security community's abuse of secrecy forced the declassification of the CIA Inspector General's 9/11 report, shut down the controversial Total Information Awareness program, and put a spotlight on both the Bush and Obama administrations’ reliance on "secret law." In 2006 he introduced the first Senate bill on net neutrality, and in 2011 he was the lone Senator to stand against the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), ultimately unsuccessful bills that purportedly were aimed at fighting online piracy but that actually would have caused significant harm to the internet. Earlier, he served from 1981 to 1996 in the House of Representatives, where he co-authored Section 230 of the Communications Decency Act of 1996—the law that protects Americans’ freedom of expression online by protecting the intermediaries we all rely on.

Resources: 

• EFF: Sen. Wyden Exposes Data Brokers Selling Location Data to Anti-Abortion Groups That Target Abortion Seekers (Feb. 27, 2024) 
• Just Security: “The Facts About Electronic Surveillance Reform  by U.S. Sen. Ron Wyden  (Jan. 31, 2024) 
• U.S. Sen. Ron Wyden: Wyden Remarks at Section 230 Briefing Hosted by EFF (March 8, 2023) 
• U.S. Supreme Court: Amicus brief of U.S. Sen. Ron Wyden and former Congressman Chris Cox in Gonzalez v. Google regarding Section 230 (January 19, 2023) 
• U.S. Sen Ron Wyden: Wyden Introduces SAFE SEX Workers Study Act (Dec. 17, 2019) 
• YouTube: DNI Clapper tells Wyden the NSA does not collect data on millions of Americans (March 12, 2013) 
• Washington Post: Interview: Sen. Ron Wyden’s fight to stop SOPA and save the Internet (Jan. 17, 2012)
• Tech Policy Press: Reversal of US Trade Policy Threatens the Free and Open Internet (Nov. 14, 2023) 

 What do you think of “How to Fix the Internet?” Share your feedback here. 

SENATOR RON WYDEN
It's been all about two things, individuals and innovation. I call it “I squared,” so to speak, because those my principles. If you kind of follow what I'm trying to do, it's about individuals, it's about innovation. And you know, government has a role in playing to guardrails and ensuring that there are competitive markets. But what I really want to do is empower individuals.

CINDY COHN
That's U.S. Senator Ron Wyden of Oregon. He is a political internet pioneer. Since he was first elected to the Senate in 1996, he has fought for personal digital rights, and against corporate and company censorship, and for sensible limits on government secrecy.

[THEME MUSIC BEGINS]

CINDY COHN
I'm Cindy Cohn, the executive director of the Electronic Frontier Foundation.

JASON KELLEY
And I'm Jason Kelley - EFF's Activism Director. This is our podcast series, How to Fix the Internet.

CINDY COHN
The idea behind this show is that we're trying to make our digital lives better. And sometimes when we think about the lawmakers in our country, we often think of the conflict and fighting and people who just don’t get it when it comes to how digital works. But there are also some people in the legislatures who have worked to enact real progress.

JASON KELLEY
Our guest this week is one of the giants in the political fight for internet freedom for several decades now. Senator Wyden played a critical role in the passage of Section 230 — a pillar of online freedom of speech that has recently been coming under attack from many different sides. And he introduced the first Senate net neutrality bill back in 2006. He’s consistently pushed back against mass surveillance and pushed for a strong Fourth Amendment, and over the years, he has consistently fought for many of the things that we are fighting for here at EFF as well.

CINDY COHN
Our conversation takes a look back at some of the major milestones of his career, decisions that have directly impacted all of our online lives. And we talk about the challenges of getting Section 230 passed into law in the first place. But more recently, Senator Wyden also talks about why he was strongly opposed to laws like FOSTA-SESTA, which undermined the space that Section 230 creates for some online speakers, using the cover of trying to stop sex trafficking on the internet.

JASON KELLEY
But like us at EFF, Senator Wyden is focusing on the battles happening right now in Congress that could have a fundamental impact on our online lives. When he was elected in the ‘90s, the focus was on the explosion and rapid expansion of the internet. Now he’s thinking about the rapid expansion of artificial intelligence, and how we can make sure that we put the individual before the profits of corporations when it comes to AI.

CINDY COHN
Our conversation covers a lot of ground but we wanted to start with Senator Wyden’s own view of what a good tech future would look like for all of us.

SENATOR RON WYDEN
Well, it's one that empowers the individual. You know, consistently, the battles around here are between big interest groups. And what I want to do is see the individual have more power and big corporations and big government have less as it relates to communications.

CINDY COHN
Yeah. So what would that look like for an ordinary user? What kinds of things might be different?

SENATOR RON WYDEN
What we'd have, for example, is faster adoption of new products and services for people showing greater trust in emergency technologies. We'd build on the motivations that have been behind my privacy bills, the Fourth Amendment Is Not For Sale, for example, Section 230, the Algorithm Accountability Act. Cindy, in each one of these, it's been all about two things: individuals and innovation.

JASON KELLEY
I'm wondering if you're surprised by the way that things have turned out in any specific instance, you know, you had a lot of responsibility for some really important legislation for CDA 230, scaling back some NSA spying issues, helping to stop SOPA-PIPA, which are all, you know, really important to EFF and to a lot of our listeners and supporters. But I'm wondering if, you know, despite that, you've seen surprises in where we are that you didn't expect.

SENATOR RON WYDEN
I didn't expect to have so many opponents across the political spectrum for Section 230. I knew we would have some, but nothing has been the subject of more misinformation than 230. You had Donald Trump, the President of the United States, lying about Section 230 over and over again. I don't think Donald Trump would know what Section 230 was if it hit him in the head, but he was always lying about vote by mail and all those kinds of things.
And huge corporate interests like Big Cable and legacy media have bankrolled massive lobbying and PR campaigns against 230. Since they saw user-created content and the ability of regular people to be heard as a threat to their top-down model, all those big guys have been trying to invent reasons to oppose 230 that I could not have dreamed of.
So I'm not saying, I don't think Chris Cox would say it either, that the law is perfect. But when I think about it, it's really a tool for individuals, people without power, without clout, without lobbies, without big checkbooks. And, uh, you know, a lot of people come up to me and say, "Oh, if you're not in public life, 230 will finally disappear" and all this kind of thing. And I said, I think you're underestimating the power of people to really see what this was all about, which was something very new, a very great opportunity, but still based on a fundamental principle that the individual would be responsible for what they posted in this whole new medium and in the United States individual responsibility carries a lot of weight.

CINDY COHN
Oh, I so agree, and I think that one of the things that we've seen, um, with 230 but with a lot of other things now, is a kind of a correct identification of the harm and a wrong identification of what's causing it or what will solve it. So, you know, there are plenty of problems online, but, um, I think we feel, and I think it sounds like you do as well, that we're playing this funny little whack-a-mole game where whatever the problem is, somebody's sliding in to say that 230 is the reason they have that problem, when a lot of times it has to do with something, you know, not related. It could even be, in many cases, the U. S. Constitution, but also kind of misindentifying –

SENATOR RON WYDEN
Cindy, there's a great story that I sometimes tell. The New York Times one day had a big picture of Chris Cox and I, it was practically a full-length page. I'm 6'4", went to college on a basketball scholarship dreaming of playing in the NBA, and they said “these two people are responsible for all the hate information online and 230 empowered people to do it.” And we hardly ever do this, but Keith Chu, our wonderful expert on all things technology, finally touched base with him and said, "you know that if there was no 230, over 95 percent of what we see online that we really dislike — you know, misogyny, hate speech, racism — would still be out there because of the First Amendment, not 230."
And the New York Times, to its credit, printed a long, long apology essentially the next day, making the case that that was really all about the First Amendment, not 230. 230 brought added kind of features to this, particularly the capacity to moderate, which was so important in a new opportunity to communicate.

[MUSIC FADES IN]

CINDY COHN
What drives you towards building a better internet? So many people in Congress in your town don't really take the time to figure out what's going on, much less propose real solutions. They kind of, you know, we've been in this swing where they, they treated the technologies like heroes and now we're in a time when they're treating them like villains. But what drives you to, to kind of figure out what's actually going on and propose real solutions?

SENATOR RON WYDEN
I showed up, Cindy, Oregon's first new United States senator in 34 years, in 1996, the winner, and the only person who knew how to use a computer at that point was, uh, Pat Leahy, who was a great advocate of technology and, and innovation. I said, "I'm going to get into new stuff." In other words, Oregon had always been about wood products. We always will be about wood products and I will continue to champion those kinds of practices, particularly now we're working to prevent these huge fires. I also said we're going to get into new things. And my dad was a journalist and he said, "You're not doing your job if you don't ask hard questions every single day."
So what we tried to do, particularly in those first days, is kind of lay the foundation, just do the foundational principles for the internet. I mean, there's a book, Jeff Kossoff wrote “26 Words That Created the Internet,” but we also had internet tax policy to promote non-discrimination, so you wouldn't be treated different online than you would be offline.
Our digital signatures law, I think, has been a fabulous, you know, addition. People used to spend hours and hours in offices, you know, kind of signing these documents that look like five phone books stacked on top of each other, and they'd be getting through it in 15, 20 minutes. So, um, to me, what I think we showed is that you could produce more genuine innovation by thinking through what was to come than just lining the pocketbooks of these big entrenched interests. Now, a big part of what we're going to have to do now with AI is go through some of those same kinds of issues. You know, I think for example, we're all in on beating China. That's important. We're all in on innovation, but we've got to make sure that we cement bedrock, you know, privacy and accountability.
And that's really what's behind the Algorithm Accountability Act because, you know, what we wanted to do when people were getting ripped off in terms of housing and education and the like with AI, we wanted to get them basic protection.

JASON KELLEY
It sounds like you're, you know, you're already thinking about this new thing, AI, and in 20 or more years ago, you were thinking about the new thing, which is posting online. How do we get more of your colleagues to sort of have that same impulse to be interested in tackling those hard questions that you mentioned? I think we always wonder what's missing from their views, and we just don't really know how to make them sort of wake up to the things that you get.

SENATOR RON WYDEN
What we do is particularly focus on getting experienced and knowledgeable and effective staff. I tell people I went to school on a basketball scholarship. I remember recruiting, we kind of recruit our technologists like they were all LeBron James, and kind of talking about, you know, why there were going to be opportunities here. And we have just a terrific staff now, really led by Chris Segoyan and Keith Chu.
And it's paid huge dividends, for example, when we look at some of these shady data broker issues, government surveillance. Now, with the passing of my, my friend Dianne Feinstein,  one of the most senior members in the intelligence field and, uh,  these incredibly good staff allow me to get into these issues right now I'm with Senator Moran, Jerry Moran of Kansas trying to upend the declassification system because it basically doesn't declassify anything and I'm not sure they could catch bad guys, and they certainly are hanging on to stuff that is irresponsible, uh, information collection about innocent people.

[SHORT MUSIC INTERLUDE]

CINDY COHN
These are all problems that, of course, we're very deep in and,  we do appreciate that you, you know, our friend, Chris Segoyan,  who EFF's known for a long time and other people you've brought in really good technologists and people who understand technology to advise you. How do we get more senators to do that too? Are there things that we could help build that would make that easier?

SENATOR RON WYDEN
I think there are, and I think we need to do more, not post-mortems, but sort of more after-action kind of analysis. For example, the vote on SESTA-FOSTA was 98 to 2. And everybody wasn't sure where the other vote was, and Rand Paul came up to me and said, "You're right, so I'm voting with you."
And, uh, the point really was, you know, everybody hated the scourge of sex trafficking and the like. I consider those people monsters. But I pointed out that all you're going to do is drive them from a place where there was transparency to the dark web, where you can't get a search engine. And people go, "Huh? Well, Ron's telling us, you know, that it's going to get worse." And then I offered an amendment to basically do what I think would have really made a difference there, which is get more prosecutors and more investigators going after bad guys. And the ultimate factor that would be good, as I say, to have these sort of after-action, after-legislating kind of things, is everybody said, "Well, you know, you've got to have SESTA-FOSTA, or you're never going to be able to do anything about Backpage. This was this horrible place that, you know, there were real problems with respect to sex trafficking. And what happened was, Backpage was put out of business under existing law, not under SESTA-FOSTA, and when you guys have this discussion with, you know, people who are following the program and ask them, ask them when their senator or congressperson last had a press conference about SESTA-FOSTA.
I know the answer to this. I can't find a single press conference about SESTA-FOSTA, which was ballyhooed at the time as this miraculous cure for dealing with really bad guys, and the technology didn't make sense and the education didn't make sense, and the history with Backpage didn't make any sense and it's because people got all intoxicated with these, you know, ideas that somehow they were going to be doing this wondrous, you know, thing and it really made things worse.

CINDY COHN
So I'm hearing three things in the better world. One, and the one you've just mentioned, is that we actually have real accountability, that when we pass some kind of regulation, we take the time to look back and see whether it worked; that we have informed people who are helping advise or actually are the lawmakers and the regulators who understand how things, uh, really work.
And the third one is that we have a lot more accountability inside government around classification and secrecy, especially around things involving, you know, national security. And, you know, you're in this position, right, where you are read in as a member of the Intelligence Committee. So you kind of see what the rest of us don't. And I'm wondering, obviously I don't want you to reveal anything, but you know, are there, is that gap an important one that we close?

SENATOR RON WYDEN
Yeah, I mean, you know, there have been a lot of 14-to-1 votes in the Intelligence Committee over the, over the years, and, you know, I've been the one, and you know, the reality is people often get swept up in these kinds of arguments, particularly from people in government, like, we're having a big debate about surveillance now, Section 702, and, you know, everybody's saying, "Ron, what are you talking about? You're opposing this, you know, we face all these, all these kinds of, kinds of threats," and, um, you know, what I've always said is, read the title of the bill, Foreign Intelligence Surveillance Act, that means we're worried about foreign intelligence, we're not, under that law supposed to be sweeping up the records of vast numbers of Americans who are interconnected to those foreign individuals by virtue of the fact that communication systems have changed.
And I personally believe that smart policies ensure that you can fight terror ferociously while still protecting civil liberties, and not-so-smart policies give you less of both.

JASON KELLEY
How do we get to that balance that you're talking about, where, you know, I know a lot of people feel like we do have to have some level of surveillance to protect national security, but that balance of protecting the individual rights of people is a complicated one. And I'm wondering how you think about what that looks like for people.

SENATOR RON WYDEN
Well, for example, Zoe Lofgren, you know, Zoe has been a partner of mine on many projects. I know she's been sympathetic with all of you all, well, for many years in her service as a member from California. You know, what we said on our 702 reforms, and by the way, we had a whole bunch of Republicans, there needs to be a warrant requirement. If you're going after the personal data of Americans, there should be a warrant requirement.

Now, we were then asked, "Well, what happens if it's some kind of imminent kind of crisis?" And I said, what I've always said is that all my bills, as it relates to surveillance, have a warrant exception, which is if the government believes that there is an imminent threat to the security of our country and our people, the government can go up immediately and come back and settle the warrant matter afterwards. And at one point I was having a pretty vigorous debate with the President and his people, then-President Obama. And I said, "Mr. President, if the warrant requirement exception isn't written right, you all write it and I'm sure we'll work it out."
But I think that giving the government a wide berth to make an assessment about whether there is a real threat to the country and they're prepared to not only go up immediately to get the information, but to trust the process later on to come back and show that it was warranted. I think it's a fair balance. That's the kind of thing I'm working on right now.

JASON KELLEY
Let’s pause for just a moment to say thank you to our sponsor. “How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians.
And now back to our conversation with Senator Ron Wyden and his work on privacy laws.

SENATOR RON WYDEN
Really, the first big law that I got passed involved privacy rights of Americans outside the country. So we had won a bunch of battles before that, you know, defeating John Poindexter, Total Information Awareness, and a variety of other battles.
But when I started this, trying to protect the privacy rights of Americans who are outside the United States, you would have thought that Western civilization was going to end. And this was the Bush administration. And the DNI, the head of national intelligence, talked to me. He said, "Ron, this is just going to be disastrous. It's going to be horrible."
And I walked him through who we were talking about. And I said, the biggest group of people we're talking about are men and women who wear the uniform in the United States because they are outside the United States. You can't possibly be telling me, Director McConnell, it was Director McConnell at that time, that they shouldn't have privacy rights. And then things kind of moved and I kept working with them and they still said that this was going to be a tremendous threat and all the rest. They were going to veto it. They actually put out a statement about there would be a veto message. So I worked with them a little bit more and we worked it out. And when we were done, the Bush administration put out something, and we are proud to say that we are protecting the privacy rights of Americans outside the United States.
So, if you can just take enough time and be persistent enough, you can get things done. And now, we actually have elected officials and presidents of both political parties all taking credit for the privacy rights of people outside the United States.

[MUSIC STING COMES IN TO INTRO CLIP]

SENATOR RON WYDEN ON CSPAN
A yes or no answer to the question, does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

JAMES CLAPPER ON CSPAN
No sir.

SENATOR RON WYDEN ON CSPAN
It does not.

JAMES CLAPPER ON CSPAN
Not wittingly. There are cases where they could inadvertantly, perhaps, collect but not, not wittingly.

CINDY COHN
That's a clip from CSPAN, a pretty famous interaction you had with James Clapper in 2013. But I think the thing that really shines through with you is your ability to walk this fine line — you're very respectful of the system, even in an instance like this where someone is lying under oath right in your face, you know you have to work within the system to make change. How do you navigate that in the face of lies and misdirection?

SENATOR RON WYDEN
Well, you have to take the time to really tee it up, and I really credit John Dickus of Oregon, our staffer at the time, did a phenomenal job. He spent about six months teeing that question up for Mr. Clapper and what happened is his deputy — Mr. Clapper's deputy, Keith Alexander — had been telling what my 11-year-old daughter — my wife and I are older parents — we have this 11-year-old. She said, "Dad, that was a big whopper. That guy told a big whopper." Keith Alexander told a bunch of whoppers. And then Mr. Clapper did. And this had all been done in public. And so we asked for answers. He wouldn't give any answers. Then he came to the one, um, you know, open-threat hearing that we have each year. And we prepare for those open threat hearings like there is no tomorrow, because you don't get very many opportunities to have a chance to ask, you know, the important questions. And so John Dickus sent to Mr. Clapper, he sent him the question a day in advance, so that nobody could say that they hadn't gotten it, and it's an informal rule in the Intelligence Committee that if an official feels that they can't answer, they just say, "I can't answer, I have to do it in private." I wouldn't have liked that answer. But I would have respected it and tried to figure out some other way, but James Clapper got the question, looked at the camera, looked at me, and just lied and persisted in coming up — he had like five or six excuses for how he wasn't lying. And I think as the country found out what was going on, it was a big part of our product to produce the next round of laws that provided some scrutiny over the Patriot Act.

CINDY COHN
I think that's a really important kind of insight, right? Which is the thing that led to people being upset about the kind of massive surveillance and understanding it was kind of the lie, right? Like if there was more transparency on the part of the national security people and they didn't just tell themselves that they have to lie to all the rest of us, you know, in order to keep us safe, which I think is a very, very dangerous story in a democracy, we might end up in a much more reasonable place for everyone about privacy and security. And I actually don't think it's a balance. I think that you only get security if you have privacy, rather than they have to be traded off against them, and –

SENATOR RON WYDEN
You're a Ben Franklin person, Cindy. Anybody who gives up liberty to have security doesn't deserve either.

CINDY COHN
Well, I think that that's kind of right, but I also think that, you know, the history has shown that the intense secrecy, overbroad secrecy actually doesn't make us safer. And I think this goes back to your point about accountability, where we really do need to look back and say these things that have been embraced as allegedly making us safer, are they actually making us safer or are we better off having a different role for secrecy — not that there's no role, but then the one that has been, you know, kind of, it's an all-purpose excuse that no matter what the government does, it just uses the secrecy argument to make sure that the American people can't find out so that we don't, you know, evaluate whether things are working or not.
I just don't think that the, you know, my experience watching these things, and I don't know about yours, is that the overblown secrecy isn't actually making us safer.

[SHORT MUSIC INTERLUDE]

JASON KELLEY
Before we wrap up, we wanted to get a sense from you of what issues you see coming in the next three years or so that we're going to need to be thinking about to be ahead of the game. What's at the top of your mind looking forward?

SENATOR RON WYDEN
The impact of the Dobbs decision repealing Roe v. Wade is going to have huge ripple effects through our society. I believe, you know, women are already having their personal information weaponized. against them. And you're seeing it in states with, you know, MAGA attorneys general, but you're also seeing it – we did a big investigation of pharmacies. And pharmacies are giving out women's personal information hither and, and yon. And, you know, we're very much committed to getting privacy rights here. And I also want to congratulate EFF on your Who's Got Your Back report, because you really are touching on these same kinds of issues, and I think getting a warrant ought to be really important.
And the other one I mentioned is, uh, fighting government censorship. And I would put that both at home and abroad. It's no secret that China, Russia, and India want to control what people can say and read, but you know, if you look at some of what, you know, we're seeing in this country, the U.S. trade representative taking a big step backwards in terms of access to information, we're going to have to deal with that in here in our country too.

CINDY COHN
Oh, those are wonderful and scary, but wonderful and important things. I really appreciate you taking the time to talk to us. It's always such a pleasure and we are huge fans of the work that you've done, and thank you so much for carrying, you know, the “I squared,” individuals and innovation. Those are two values close to our hearts here at EFF and we really appreciate having you in Congress championing that as well

SENATOR RON WYDEN
I don't want to make this a bouquet-tossing contest, but we've had a lot of opportunities to work, work together and, you know, EFF is part of the Steppin' Up Caucus and, uh, really appreciate it and, uh, let's put this in "to be continued," okay?

CINDY COHN
Terrific.

SENATOR RON WYDEN
Thanks, guys.

CINDY COHN
I really could talk with Senator Wyden all day and specifically talk with him about national security all day, but what a great conversation. And it's so refreshing to have somebody who's experienced in Congress who really is focusing on two of the most important things that EFF focuses on as well. I love the framing of I squared, right? Individuals and innovation as the kind of centerpiece of a better world.

JASON KELLEY
Yeah. And you know, he's not just saying it, it's clear from his bills and his work over the years that he really does center those things. Innovation and individuals are really the core of things like Section 230 and many other pieces of legislation that he's worked on, which, it's just really nice and refreshing to hear someone who has a really strong ethos in the Senate and has the background to show that he means it.

CINDY COHN
Yeah, and you know, sometimes we disagree with Senator Wyden, but it's always refreshing to feel like, well, we're all trying to point in the same direction. We sometimes have disagreements about how to get there.

JASON KELLEY
Yeah. And one of the great things about working with him is that, you know, he and his staff are tech-savvy, so our disagreements are often pretty nuanced, at least from what I can remember. You know, we aren't having disagreements about what a technology is or something like that very often. I think we're, we're usually having really good conversations with his folks, because he's one of the most tech-savvy staffers in the Senate, and he's helped really make the Senate more tech-savvy overall.

CINDY COHN
Yeah, I think that this is one of these pieces of a better internet that, that feels kind of indirect, but is actually really important, which is making sure that our lawmakers - you know, they don't all have to be technologists. We have a couple technologists in Congress now, but they really have to be informed by people who understand how technology works.
And I think one of the things that's important when we show up a lot of the times is really, you know, having a clear ability to explain to the people, you know, whether it's the congressional people themselves or their staff, like how things really work and having that kind of expertise in house is, I think, something that's going to be really important if we're going to get to a better internet.

JASON KELLEY
Yeah. And it's clear that we have still work to do. You know, he brought up SESTA-FOSTA and that's an instance where, you know, he understands and his staff understands that that was a bad bill, but it was still, as he said, you know, 98-2, when it came to the vote. And ultimately that was a tech bill. And I think if, if we had more, even more sort of tech-savvy folks, we wouldn't have had such a such a fight with that bill.

CINDY COHN
And I think that he also pointed to something really important, which was this idea of after analysis, after-action thinking and looking back and saying, "Well, we passed this thing, did it do what we had hoped it would do?" as a way to really have a process where we can do error correction. And I noted that, you know, Ro Khanna and Elizabeth Warren have actually, and Senator Wyden, have floated a bill to have an investigation into FOSTA-SESTA, which, you know, for, for those who, who don't know the shorthand, this was a way that Section 230 was cut back, and protection was cut back. And the idea is that it could help stop sex trafficking. Well, all the data that we've seen so far is that it did not do that. And in some ways made sex trafficking,  you know, in the offline environment more dangerous. But having Congress actually step in and do and sponsor the research to figure out whether the bill that Congress passed did the thing that they said is, I think, just a critical piece of how we decide what we're going to do in order to protect individuals and innovation online.

JASON KELLEY
Yeah. For me, you know, it's actually tied to something that I know a lot of tech teams do which is like a sort of post-mortem. You know, after something happens, you really do need to investigate how we got there, what worked and what didn't, but in this case we all know, at least at EFF, that this was a bad bill.

CINDY COHN
Yeah, I mean, sometimes it might be just taking what we know anecdotally and turning it into something that Congress can more easily see and digest. Um, I think the other thing, it's just impossible to talk with or about Senator Wyden without talking about national security because he has just been heroic in his efforts to try to make sure that we don't trade privacy off for security. And that we recognize that these two things are linked and that by lifting up privacy, we're lifting up national security.
And by reducing privacy, we're not actually making ourselves safer. And he really has done more for this. And I think what was heartening about this conversation was that, you know, he talked about how he convinced national security hawks to support something that stood with privacy, this story about kind of really talking about how most of the Americans abroad are affiliated in one way or another with the U.S. military, people who are stationed abroad and their families, and how standing up for their privacy and framing it that way, you know, ultimately led to some success for this. Now, we've got a long ways to go, and I think he'd be the first one to agree. But the kind of doggedness and willingness to be in there for the long haul and talk to the national security folks about how, how these two values support each other is something that he has really proven that he's willing to do and it's so important.

JASON KELLEY
Yeah, that's exactly right, I think, as well. And it's also terrific that he's looking to the future, you know, we do know that he's thinking about these things, you know, 702 has been an issue for a long time and he's still focused on it, but what did you think of his thoughts about what our coming challenges are — things like how to deal with data in in a post-Dobbs world, for example?

CINDY COHN
Oh, I think he's right on, right on it. He's recognizing, I think as a lot of people have, that the Dobbs decision, overturning Roe v. Wade has really made it clear to a lot of people how vulnerable we are, based upon the data that we have to leave behind in what we do every day. Now you can do things to try to protect them, but there's only so much we can do right now without changes in the law and changes in the way things go because you know, your phone needs to know where you are in order to ring when somebody calls you or ping when somebody texts you.
So we need legal answers and he's correct that this is really coming into the fore right now. I think he's also thinking about the challenges that artificial intelligence are bringing. So I really appreciate that he's already thinking about how we fix the internet, you know, in the coming years, not just right now.

JASON KELLEY
I'm really glad we had this bouquet-throwing contest, I think was what he called it. Something like that. But yeah, I think it's great to have an ally and have them be in the Senate and I know he feels the same way about us.

CINDY COHN
Oh, absolutely. I mean, you know, part of the way we get to a better internet is to recognize the people who are doing the right thing. And so, you know, we spend a lot of time at EFF throwing rocks at the people who are doing the wrong thing. And that's really important too. But occasionally, you know, we get to throw some bouquets to the people who are fighting the good fight.

[THEME MUSIC FADES IN]

JASON KELLEY

Thanks for joining us for this episode of How To Fix the Internet.
If you have feedback or suggestions, we'd love to hear from you. Visit EFF.org/podcast and click on listener feedback. While you're there, you can become a member, donate, maybe pick up some merch and just see what's happening in digital rights this week and every week.
We’ve got a newsletter, EFFector, as well as social media accounts on many, many, many platforms.
This podcast is licensed Creative Commons Attribution 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators.
In this episode you heard Kalte Ohren by Alex and Drops of H10 (The Filtered Water Treatment) by J. Lang
Our theme music is by Nat Keefe of BeatMower with Reed Mathis
How to Fix the Internet is supported by the Alfred P. Sloan Foundation's program in public understanding of science and technology.
We’ll talk to you again soon.
I’m Jason Kelley.

CINDY COHN
And I’m Cindy Cohn.

Copyright’s reach is already far too broad, and courts have no business expanding it any further, particularly where that reframing will undermine adversarial interoperability. Unfortunately, a federal district court did just that in the latest iteration of Oracle v. Rimini, concluding that software Rimini developed was a “derivative work” because it was intended to interoperate with Oracle's software, even though the update didn’t use any of Oracle’s copyrightable code.

That’s a dangerous precedent. If a work is derivative, it may infringe the copyright in the preexisting work from which it, well, derives. For decades, software developers have relied, correctly, on the settled view that a work is not derivative under copyright law unless it is “substantially similar” to a preexisting work in both ideas and expression. Thanks to that rule, software developers can build innovative new tools that interact with preexisting works, including tools that improve privacy and security, without fear that the companies that hold rights in those preexisting works would have an automatic copyright claim to those innovations.

That’s why EFF, along with a diverse group of stakeholders representing consumers, small businesses, software developers, security researchers, and the independent repair community, filed an amicus brief in the Ninth Circuit Court of Appeals explaining that the district court ruling is not just bad policy, it’s also bad law.  Court after court has confronted the challenging problem of applying copyright to functional software, and until now none have found that the copyright monopoly extends to interoperable software absent substantial similarity. In other words, there is no “software exception” to the definition of derivative works, and the Ninth Circuit should reject any effort to create one.

The district court’s holding relied heavily on an erroneous interpretation of a 1998 case, Micro Star v. FormGen. In that case, the plaintiff, FormGen, published a video game following the adventures of action hero Duke Nukem. The game included a software tool that allowed players themselves to build new levels to the game and share them with others. Micro Star downloaded hundreds of those user-created files and sold them as a collection. When FormGen sued for copyright infringement, Micro Star argued that because the user files didn’t contain art or code from the FormGen game, they were not derivative works.

The Ninth Circuit Court of Appeals ruled against Micro Star, explaining that:

[t]he work that Micro Star infringes is the [Duke Nukem] story itself—a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels and the stories told in the [user files] are surely sequels, telling new (though somewhat repetitive) tales of Duke’s fabulous adventures.

Thus, the user files were “substantially similar” because they functioned as sequels to the video game itself—specifically the story and principal character of the game. If the user files had told a different story, with different characters, they would not be derivative works. For example, a company offering a Lord of the Rings game might include tools allowing a user to create their own character from scratch. If the user used the tool to create a hobbit, that character might be considered a derivative work. A unique character that was simply a 21st century human in jeans and a t-shirt, not so much.

Still, even confined to its facts, Micro Star stretched the definition of derivative work. By misapplying Micro Star to purely functional works that do not incorporate any protectable expression, however, the district court rewrote the definition altogether. If the court’s analysis were correct, rightsholders would suddenly have a new default veto right in all kinds of works that are intended to “interact and be useable with” their software. Unfortunately, they are all too likely to use that right to threaten add-on innovation, security, and repair.

Defenders of the district court’s approach might argue that interoperable software will often be protected by fair use. As copyrightable software is found in everything from phones to refrigerators, fair use is an essential safeguard for the development of interoperable tools, where those tools might indeed qualify as derivative works. But many developers cannot afford to litigate the question, and they should not have to just because one federal court misread a decades-old case.

More than four years after it was first introduced, the Online Safety Act (OSA) was passed by the U.K. Parliament in September 2023. The Act seeks to make the U.K. “the safest place” in the world to be online and provides Ofcom, the country’s communications regulator, with the power to enforce this.

EFF has opposed the Online Safety Act since it was first introduced. It will lead to a more censored, locked-down internet for British users. The Act empowers the U.K. government to undermine not just the privacy and security of U.K. residents, but internet users worldwide. We joined civil society organizations, security experts, and tech companies to unequivocally ask for the removal of clauses that require online platforms to use government-approved software to scan for illegal content. 

Under the Online Safety Act, websites, and apps that host content deemed “harmful” minors will face heavy penalties; the problem, of course, is views vary on what type of content is “harmful,” in the U.K. as with all other societies. Soon, U.K. government censors will make that decision. 

The Act also requires mandatory age verification, which undermines the free expression of both adults and minors. 

Ofcom recently published the first of four major consultations seeking information on how internet and search services should approach their new duties on illegal content. While we continue to oppose the concept of the Act, we are continuing to engage with Ofcom to limit the damage to our most fundamental rights online. 

EFF recently submitted information to the consultation, reaffirming our call on policymakers in the U.K. to protect speech and privacy online. 

For years, we opposed a clause contained in the then Online Safety Bill allowing Ofcom to serve a notice requiring tech companies to scan their users–all of them–for child abuse content. We are pleased to see that Ofcom’s recent statements note that the Online Safety Act will not apply to end-to-end encrypted messages. Encryption backdoors of any kind are incompatible with privacy and human rights. 

However, there are places in Ofcom’s documentation where this commitment can and should be clearer. In our submission, we affirmed the importance of ensuring that people’s rights to use and benefit from encryption—regardless of the size and type of the online service. The commitment to not scan encrypted data must be firm, regardless of the size of the service, or what encrypted services it provides. For instance, Ofcom has suggested that “file-storage and file-sharing” may be subject to a different risk profile for mandating scanning. But encrypted “communications” are not significantly different from encrypted “file-storage and file-sharing.”

In this context, Ofcom should also take note of new milestone judgment in PODCHASOV v. RUSSIA (Application no. 33696/19) where the European Court of Human Rights (ECtHR) ruled that weakening encryption can lead to general and indiscriminate surveillance of communications for all users, and violates the human right to privacy. 

An earlier version of the Online Safety Bill enabled the U.K. government to directly silence user speech and imprison those who publish messages that it doesn’t like. It also empowered Ofcom to levy heavy fines or even block access to sites that offend people. We were happy to see this clause removed from the bill in 2022. But a lot of problems with the OSA remain. Our submission on illegal harms affirmed the importance of ensuring that users have: greater control over what content they see and interact with, are equipped with knowledge about how various controls operate and how they can use them to their advantage, and have the right to anonymity and pseudonymity online.

Moderation mechanisms must not interfere with users’ freedom of expression rights, and moderators should receive ample training and materials to ensure cultural and linguistic competence in content moderation. In cases where time-related pressure is placed on moderators to make determinations, companies often remove more than necessary to avoid potential liability, and are incentivized towards using automated technologies for content removal and upload filters. These are notoriously inaccurate and prone to overblocking legitimate material. Moreover, the moderation of terrorism-related content is prone to error and any new mechanism like hash matching or URL detection must be provided with expert oversight. 

Throughout this consultation period, EFF will continue contributing to and monitoring Ofcom’s drafting of the regulation. And we will continue to hold the U.K. government accountable to the international and European human rights protections to which they are signatories.

Read EFF's full submission to Ofcom. 

De advocaat had het altijd een genoegen gevonden om met zijn vakbroeders over zijn rechtsgebied te kunnen spreken. Maar sinds de corona-crisis had hij zijn motivatie voor het bijwonen van cursussen verloren. De advocaat waarover de Haagse deken in Den Haag in september vorig jaar een klacht indiende, had over de jaren 2021 en 2022 onvoldoende opleidingspunten had behaald en onvoldoende GIO’s (Gestructureerd Intercollegiaal Overleg) gevolgd. Hij reageerde ook niet op tijd op verzoeken van de deken om zijn CCV-overzicht (Centrale Controle op de Verordening, red.) in te vullen.

Er kwamen een hoop herinneringen en aanmaningen van het bureau van de deken aan te pas, voordat de aap uit de mouw kwam in een persoonlijk gesprek, in februari 2023. De advocaat had de CCV-opgave voor zich uitgeschoven, omdat hij in 2021 maar zes punten had behaald van de verplichte 25, en zelfs geen enkele in 2022. Beloftes om het allemaal in 2023 goed te gaan maken, kwam hij later ook niet na. Daarbij had hij de pech dat een cursus waarvoor hij zich wel had ingeschreven, niet doorging wegens een tekort aan deelnemers.

Spijt had de advocaat wel, en hij erkende ook dat hij fout zat. Daarom had hij in de laatste maanden van 2023 toch nog een eindspurt gemaakt, en maar liefst 43 opleidingspunten behaald. Ook bleek hij in 2022 toch nog aan twee GIO’s te hebben meegedaan, van in totaal acht uur. Tijdens de zitting op 4 maart bleken dat uiteindelijk toch maar twee uur te zijn geweest.

De Raad van Discipline constateerde dat de advocaat zijn ‘kop in het zand had gestoken’ door zijn overzicht te laat in te leveren, omdat hij wist dat hij het vereiste aantal punten niet had gehaald – bedoeld om zijn deskundigheid op peil te houden. Ondanks zijn ‘struisvogelgedrag’ waardeerde de Raad het wel dat hij op zitting was komen uitleggen hoe het zat, om zichzelf te verantwoorden. Hoewel het als een minpunt werd gezien dat hij zelfs in tweede instantie bij de deken niet de juiste informatie gaf over de in 2022 behaalde punten.

Het dekenbezwaar werd op alle onderdelen gegrond verklaard en de advocaat kreeg een voorwaardelijke schorsing van twee weken opgelegd – met een proeftijd van twee jaar – omdat hij handelde in strijd met de verordening op de advocatuur en zich niet had gedragen ‘zoals een goed advocaat betaamt’.

Het bericht Struisvogelgedrag advocaat over punten leidt tot voorwaardelijke straf verscheen eerst op Mr. Online.

Met ChatGPT en andere zogenaamde generatieve AI-toepassingen is veel mogelijk. Die mogelijkheden zien velen als een kans, terwijl anderen het als een bedreiging zien.  Een recent voorbeeld vormt het aanbod van Uitgeverij Veranderen en inzicht, die via Bol.com en Amazon tientallen samenvattingen verkoopt van zelfhulpboeken van anderen, die naar alle waarschijnlijkheid met AI zijn gemaakt.
Mag dat zo maar? Of door een mens gemaakte samenvattingen ‘mogen’, hangt af van de vraag of er creatieve stukken uit het origineel worden overgenomen.  Voor met AI gemaakte samenvattingen gelden echter andere regels. Samenvatten met AI is een vorm van ‘tekst- en datamining’. Dat blijkt onder andere uit de recente AI Act. ‘Tekst- en datamining’ mag voor non-profit onderzoeksdoeleinden en voor privégebruik. Voor andere, bijvoorbeeld commerciële doeleinden, mag het ook  “mits degene die de tekst- en datamining verricht rechtmatig toegang heeft tot het werk en het auteursrecht door de maker of zijn rechtverkrijgenden niet uitdrukkelijk op passende wijze is voorbehouden, zoals door middel van machinaal leesbare middelen bij een online ter beschikking gesteld werk” (artikel 15o Auteurswet).

En daarmee is een auteursrechtvoorbehoud als “All rights reserved. No part of this publication may be reproduced, stored or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise without written permission from the publisher” of de Nederlandse variant daarvan, plotseling weer heel belangrijk.
Van dit ouderwetse voorbehoud dachten we dat het geen enkel nut meer had. Auteursrecht ontstaat immers vanzelf. ©, registratie of voorbehoud zijn helemaal niet nodig om auteursrechtelijke bescherming te hebben.

Maar nu is zo’n voorbehoud ineens weer super belangrijk. Met zo’n voorbehoud kan de tekst- en datamininguitzondering worden uitgeschakeld en het maken van commerciële samenvattingen met AI zoals Uitgeverij Veranderen en inzicht doet worden verboden. Bij online beschikbaar gestelde content moet het voorbehoud in  ‘machineleesbare vorm’. Maar in eBooks, in pdf’s en in alle andere digitale documenten kan het ook in het colofon, in een eerste voetnoot of op een andere duidelijke plaats. En het is sterk aan te bevelen dat te doen.

Uitgevers willen overigens zelf ook graag met ChatGPT en dergelijke aan de slag met hun eigen boeken, om daar samenvattingen en allerlei leuke interactieve producten van te maken. Of zij dat mogen hangt af wat er in het contract met hun auteurs staat. En daar geldt dat het voor auteurs heel verstandig is om zelf het auteursrecht ten aanzien van ‘tekst- en datamining’ nadrukkelijk voor te behouden ten opzichte van de eigen uitgever of daar goede afspraken over te maken én om er bij de uitgever op aan te dringen dat hij het auteursrechtvoorbehoud extern nadrukkelijk maakt.

Het bericht Ouderwets auteursrechtvoorbehoud weer belangrijk in tijden van AI verscheen eerst op Mr. Online.

Ophef op vrijdag: het Hof van Justitie heeft geoordeeld dat het mondeling uitspreken van persoonsgegevens ook onder de AVG valt. Wacht, wat? Oké, er zit natuurlijk iets meer nuance aan deze uitspraak (C-740/22) maar in de kern klopt het wel degelijk.

De zaak begon als een background check van de Finse afdeling Endemol Shine over een deelnemer aan een van hun programma’s. Endemol belde met de Etelä-Savon käräjäoikeus (de rechtbank Zuid-Savo, maar ik höü van Finse namen) om te vragen of er strafzaken tegen deze persoon liepen.

De rechtbank weigerde antwoord te geven “want dat mag niet van de AVG”, iets preciezer: antwoord geven zou een verwerking van strafrechtelijke persoonsgegevens opleveren, ook als men dat mondeling zou doen. En er was geen grond voor die verwerking (verstrekking) omdat “meewerken aan private background checks” niet in de wet genoemd staat. Endemol ging in beroep omdat volgens hen een mondelinge mededeling in het geheel buiten de AVG valt. Dat leidde tot vragen aan het Hof van Justitie.

Dat de gevraagde gegevens persoonsgegevens zijn staat vast. Het Hof is snel klaar met de vraag of dit telt als ‘verwerking’; dat is zo want de definitie van verwerking omvat alles dat je met persoonsgegevens kunt doen. Dus ook het voorlezen of uit je hoofd opzeggen daarvan.

Dit wil alleen niet zeggen dat de AVG geldt. Daarvoor is vereist hetzij dat de gegevens elektronisch worden verwerkt, hetzij dat ze in een bestand zitten of bestemd zijn daarin te worden opgenomen. Voorlezen is per definitie niet een elektronische verwerking, dus komt het neer op de vraag of we hier met een bestand te maken hebben. In dit verband heeft het Hof reeds geoordeeld dat, om het in punt 34 van het onderhavige arrest in herinnering gebrachte doel te bereiken, deze bepaling een ruime omschrijving geeft van het begrip „bestand” in de zin van „elk” gestructureerd geheel van persoonsgegevens. Bovendien beoogt het vereiste dat het geheel van persoonsgegevens moet zijn „gestructureerd volgens specifieke criteria”, uitsluitend ervoor te zorgen dat de persoonsgegevens gemakkelijk kunnen worden teruggevonden. Behalve dit vereiste bevat artikel 4, punt 6, AVG geen enkele bepaling over de wijze waarop een bestand moet worden gestructureerd, en over de vorm die een dergelijk bestand moet hebben. Dat de rechtbank een systeem met dossiers had, betwistte niemand. En daarin zit een zoekfunctie, en dat is genoeg om het systeem een “bestand” te noemen in de zin van de AVG. Daaruit concludeert het Hof dat wie voorleest uit zulke dossiers, persoonsgegevens verwerkt en onder de AVG valt.

Het verstrekken van die gegevens is vervolgens triviaal in strijd met de AVG, maar dat laat ik even buiten beschouwing. De eerste conclusie is namelijk al ophef genoeg. Ik ken vele, vele partijen die erop staan dat dingen mondeling gebeuren “omdat anders de AVG van toepassing is”. En dat is dus nu geen argument meer.

De scope is echter wel iéts beperkter dan “alle voorlezen valt onder de AVG”. Men zegt immers dat het voorlezen van zulke informatie onder de AVG valt “voor zover deze informatie in een bestand is opgenomen of bestemd is om daarin te worden opgenomen.” De bron van de informatie moet dus een bestand zijn waaruit je voorleest.

Ik zie de uitspraak dus meer als een blokkade tegen “ik mag je geen mail sturen, dus ik lees het wel even voor” dan dat het Hof nu wérkelijk heeft gemeend dat iedere vorm van praten over personen onder de AVG valt.

Arnoud

Het bericht Een naam hardop uitspreken valt nu ook onder de AVG, wacht, wat? verscheen eerst op Ius Mentis.

The Foilies are co-written by EFF and MuckRock and published in alternative newspapers around the country through a partnership with the Association of Alternative Newsmedia. 

We're taught in school about checks and balances between the various branches of government, but those lessons tend to leave out the role that civilians play in holding officials accountable. We're not just talking about the ballot box, but the everyday power we all have to demand government agencies make their records and data available to public scrutiny.

At every level of government in the United States (and often in other countries), there are laws that empower the public to file requests for public records. They go by various names—Freedom of Information, Right-to-Know, Open Records, or even Sunshine laws—but all share the general concept that because the government is of the people, its documents belong to the people. You don't need to be a lawyer or journalist to file these; you just have to care.

It's easy to feel powerless in these times, as local newsrooms close, and elected officials embrace disinformation as a standard political tool. But here's what you can do, and we promise it'll make you feel better: Pick a local agency—it could be a city council, a sheriff's office or state department of natural resources—and send them an email demanding their public record-request log, or any other record showing what requests they receive, how long it took them to respond, whether they turned over records, and how much they charged the requester for copies. Many agencies even have an online portal that makes it easier, or you can use MuckRock’s records request tool. (You can also explore other people's results that have been published on MuckRock's FOIA Log Explorer.) That will send the message to local leaders they're on notice. You may even uncover an egregious pattern of ignoring or willfully violating the law.

The Foilies are our attempt to call out these violations each year during Sunshine Week, an annual event (March 10-16 this year) when advocacy groups, news organizations and citizen watchdogs combine efforts to highlight the importance of government transparency laws. The Electronic Frontier Foundation and MuckRock, in partnership with the Association of Alternative Newsmedia, compile the year's worst and most ridiculous responses to public records requests and other attempts to thwart public access to information, including through increasing attempts to gut the laws guaranteeing this access—and we issue these agencies and officials tongue-in-cheek "awards" for their failures.

Sometimes, these awards actually make a difference. Last year, Mendocino County in California repealed its policy of charging illegal public records fees after local journalists and activists used The Foilies’ "The Transparency Tax Award" in their advocacy against the rule.

This year marks our 10th annual accounting of ridiculous redactions, outrageous copying fees, and retaliatory attacks on requesters—and we have some doozies for the ages.

• The Not-So-Magic Word Award: Augusta County Sheriff’s Office, Va.
• The Poop and Pasta Award: Richlands, Va.
  
• The Error 404 Transparency Not Found Award: FOIAonline
  
• The Literary Judicial Thrashing of the Year Award: Pennridge, Penn., School District
• The Photographic Recall Award: Los Angeles Police Department
• The Cops Anonymous Award: Chesterfield County Police Department, Va.
  
• The Keep Your Opinions to Yourself Award: Indiana Attorney General Todd Rokita
• The Failed Sunshine State Award: Florida Gov. Ron DeSantis
  
• The Self-Serving Special Session Award: Arkansas Gov. Sarah Huckabee Sanders
• The Doobie-ous Redaction Award: U.S. Department of Health and Human Services and Drug Enforcement Administration
• The “Clearly Releasable,” Clearly Nonsense Award: U.S. Air Force
  
• The Scrubbed Scrubs Award: Ontario Ministry of Health, Canada
  
• The Judicial Blindfold Award: Mississippi Justice Courts
  
• It’s My Party and I Can Hide Records If I Want to Award: Wyoming Department of Education
• The Fee-l the Burn Award: Baltimore Police Department
  
• The Continuing Failure Award: United States Citizenship and Immigration Services
• The Creative Invoicing Award: Richmond, Va., Police Department
  

Public records laws exist in no small part because corruption, inefficiency and other malfeasance happen, regardless of the size of the government. The public’s right to hold these entities accountable through transparency can prevent waste and fraud.

Of course, this kind of oversight can be very inconvenient to those who would like a bit of secrecy. Employees in Virginia’s Augusta County thought they’d found a neat trick for foiling Virginia's Freedom of Information Act.

Consider: “NO FOIA”

In an attempt to withhold a bunch of emails they wanted to hide from the public eye, employees in Augusta County began tagging their messages with “NO FOIA,” as an apparent incantation staff believed could ward off transparency. Of course, there are no magical words that allow officials to evade transparency laws; the laws assume all government records are public, so agencies can’t just say they don’t want records released.

Fortunately, at least one county employee thought that breaking the law must be a little more complicated than that, and this person went to Breaking Through News to blow the whistle.

Breaking Through News sent a FOIA request for those “NO FOIA” emails. The outlet received just 140 emails of the 1,212 that the county indicated were responsive, and those released records highlighted the county’s highly suspect approach to withholding public records. Among the released records were materials like the wages for the Sheriff Office employees (clearly a public record), the overtime rates (clearly a public record) and a letter from the sheriff deriding the competitive wages being offered at other county departments (embarrassing but still clearly a public record). 

Other clearly public records, according to a local court, included recordings of executive sessions that the commissioners had entered illegally, which Breaking Through News learned about through the released records. They teamed up with the Augusta Free Press to sue for access to the recordings, a suit they won last month. They still haven’t received the awarded records, and it’s possible that Augusta County will appeal. Still, it turned out that, thanks to the efforts of local journalists, their misguided attempt to conjure a culture of “No FOIA” in August County actually brought them more scrutiny and accountability.

Government officials retaliated against a public records requester by filling her mailbox with noodles.

In 2020, Laura Mollo of Richlands, Va., discovered that the county 911 center could not dispatch Richlands residents’ emergency calls: While the center dispatched all other county 911 calls, calls from Richlands had to be transferred to the Richlands Police Department to be handled. After the Richlands Town Council dismissed Mollo’s concerns, she began requesting records under the Virginia Freedom of Information Act. The records showed that Richlands residents faced lengthy delays in connecting with local emergency services. On one call, a woman pleaded for help for her husband, only to be told that county dispatch couldn’t do anything—and her husband died during the delay. Other records Mollo obtained showed that Richlands appeared to be misusing its resources.

You would hope that public officials would be grateful that Mollo uncovered the town’s inadequate emergency response system and budget mismanagement. Well, not exactly: Mollo endured a campaign of intimidation and harassment for holding the government accountable. Mollo describes how her mailbox was stuffed with cow manure on one occasion, and spaghetti on another (which Mollo understood to be an insult to her husband’s Italian heritage). A town contractor harassed her at her home; police pulled her over; and Richlands officials even had a special prosecutor investigate her.

But this story has a happy ending: In November 2022, Mollo was elected to the Richlands Town Council. The records she uncovered led Richlands to change over to the county 911 center, which now dispatches Richlands residents’ calls. And in 2023, the Virginia Coalition for Open Government recognized Mollo by awarding her the Laurence E. Richardson Citizen Award for Open Government. Mollo’s recognition is well-deserved. Our communities are indebted to people like her who vindicate our right to public records, especially when they face such inexcusable harassment for their efforts.

In 2012, FOIAonline was launched with much fanfare as a way to bring federal transparency into the late 20th century. No longer would requesters have to mail or fax requests. Instead, FOIAonline was a consolidated starting point, managed by the Environmental Protection Agency (EPA), that let you file Freedom of Information Act requests with numerous federal entities from within a single digital interface.

Even better, the results of requests would be available online, meaning that if someone else asked for interesting information, it would be available to everyone, potentially reducing the number of duplicate requests. It was a good idea—but it was marred from the beginning by uneven uptake, agency infighting, and inscrutable design decisions that created endless headaches. In its latter years, FOIAonline would go down for days or weeks at a time without explanation. The portal saw agency after agency ditch the platform in favor of either homegrown solutions or third-party vendors.

Last year, the EPA announced that the grand experiment was being shuttered, leaving thousands of requesters uncertain about how and where to follow up on their open requests, and unceremoniously deleting millions of documents from public access without any indication of whether they would be made available again.

In a very on-brand twist of the knife, the decision to sunset FOIAonline was actually made two years prior, after an EPA office reported in a presentation that the service was likely to enter a “financial death spiral” of rising costs and reduced agency usage. Meanwhile, civil-society organizations such as MuckRock, the Project on Government Oversight, and the Internet Archive have worked to resuscitate and make available at least some of the documents the site used to host.

Sometimes when you're caught breaking the law, the judge will throw the book at you. In the case of Pennridge School District in Bucks County, Penn. Judge Jordan B. Yeager catapulted an entire shelf of banned books at administrators for violating the state's Right-to-Know Law.

The case begins with Darren Laustsen, a local parent who was alarmed by a new policy to restrict access to books that deal with “sexualized content,” seemingly in lockstep with book-censorship laws happening around the country. Searching the school library's catalog, he came across a strange trend: Certain controversial books that appeared on other challenged-book lists had been checked out for a year or more. Since students are only allowed to check out books for a week, he (correctly) suspected that library staff were checking them out themselves to block access.

So he filed a public records request for all books checked out by non-students. Now, it's generally important for library patrons to have their privacy protected when it comes to the books they read—but it's a different story if public employees are checking out books as part of their official duties and effectively enabling censorship. The district withheld the records, provided incomplete information, and even went so far as to return books and re-check them out under a student's account in order to obscure the truth. And so Laustsen sued.

The judge issued a scathing and literarily robust ruling: “In short, the district altered the records that were the subject of the request, thwarted public access to public information, and effectuated a cover-up of faculty, administrators, and other non-students’ removal of books from Pennridge High School’s library shelves." The opinion was peppered with witty quotes from historically banned books, including Nineteen Eighty-Four, Alice in Wonderland, The Art of Racing in the Rain and To Kill a Mockingbird. After enumerating the district's claims that later proved to be inaccurate, he cited Kurt Vonnegut's infamous catchphrase from Slaughterhouse-Five: "So it goes."

Police agencies seem to love nothing more than trumpeting an arrest with an accompanying mugshot—but when the tables are turned, and it’s the cops’ headshots being disclosed, they seem to lose their minds and all sense of the First Amendment.

This unconstitutional escapade began (and is still going) after a reporter and police watchdog published headshots of Los Angeles Police Department officers, which they lawfully obtained via a public records lawsuit. LAPD cops and their union were furious. The city then sued the reporter, Ben Camacho, and the Stop LAPD Spying Coalition, demanding that they remove the headshots from the internet and return the records to LAPD.

You read that right: After a settlement in a public records lawsuit required the city to disclose the headshots, officials turned around and sued the requester for, uh, disclosing those same records, because the city claimed it accidentally released pictures of undercover cops.

But it gets worse: Last fall, a trial court denied a motion to throw out the city’s case seeking to claw back the images; Camacho and the coalition have appealed that decision and have not taken the images offline. And in February, the LAPD sought to hold Camacho and the coalition liable for damages it may face in a separate lawsuit brought against it by hundreds of police officers whose headshots were disclosed.

We’re short on space, but we’ll try explain the myriad ways in which all of the above is flagrantly unconstitutional: The First Amendment protects Camacho and the coalition’s ability to publish public records they lawfully obtained, prohibits courts from entering prior restraints that stop protected speech, and limits the LAPD’s ability to make them pay for any mistakes the city made in disclosing the headshots. Los Angeles officials should be ashamed of themselves—but their conduct shows that they apparently have no shame.

The Chesterfield County Police Department in Virginia refused to disclose the names of hundreds of police officers to a public records requester on this theory: Because the cops might at some point go undercover, the public could never learn their identities. It’s not at all dystopian to claim that a public law enforcement agency needs to have secret police!

Other police agencies throughout the state seem to deploy similar secrecy tactics, too.

In March 2023, Indiana Attorney General Todd Rokita sent a letter to medical providers across the state demanding information about the types of gender-affirming care they may provide to young Hoosiers. But this was no unbiased probe: Rokita made his position very clear when he publicly blasted these health services as “the sterilization of vulnerable children” that “could legitimately be considered child abuse.” He made claims to the media that the clinics’ main goals weren’t to support vulnerable youth, but to rake in cash.

Yet as loud as he was about his views in the press, Rokita was suddenly tight-lipped once the nonprofit organization American Oversight filed a public records request asking for all the research, analyses and other documentation that he used to support his claims. Although his agency located 85 documents that were relevant to their request, Rokita refused to release a single page, citing a legal exception that allows him to withhold deliberative documents that are “expressions of opinion or are of a speculative nature.”

Perhaps if Rokita’s opinions on gender-affirming care weren't based on facts, he should've kept those opinions and speculations to himself in the first place.

Florida’s Sunshine Law is known as one of the strongest in the nation, but Gov. Ron DeSantis spent much of 2023 working, pretty successfully, to undermine its superlative status with a slew of bills designed to weaken public transparency and journalism.

In March, DeSantis was happy to sign a bill to withhold all records related to travel done by the governor and a whole cast of characters. The law went into effect just more than a week before the governor announced his presidential bid. In addition, DeSantis has asserted his “executive privilege” to block the release of public records in a move that, according to experts like media law professor Catherine Cameron, is unprecedented in Florida’s history of transparency.

DeSantis suspended his presidential campaign in January. That may affect how many trips he’ll be taking out-of-state in the coming months, but it won’t undo the damage of his Sunshine-slashing policies.

Multiple active lawsuits are challenging DeSantis over his handling of Sunshine Law requests. In one, The Washington Post is challenging the constitutionality of withholding the governor’s travel records. In that case, a Florida Department of Law Enforcement official last month claimed the governor had delayed the release of his travel records. Nonprofit watchdog group American Oversight filed a lawsuit in February, challenging “the unjustified and unlawful delay” in responding to requests, citing a dozen records requests to the governor’s office that have been pending for one to three years.

“It’s stunning, the amount of material that has been taken off the table from a state that many have considered to be the most transparent,” Michael Barfield, director of public access for the Florida Center for Government Accountability (FCGA), told NBC News. The FCGA is now suing the governor’s office for records on flights of migrants to Massachusetts. “We’ve quickly become one of the least transparent in the space of four years.”

By design, FOIA laws exist to help the people who pay taxes hold the people who spend those taxes accountable. In Arkansas, as in many states, taxpayer money funds most government functions: daily office operations, schools, travel, dinners, security, etc. As Arkansas’ governor, Sarah Huckabee Sanders has flown all over the country, accompanied by members of her family and the Arkansas State Police. For the ASP alone, the people of Arkansas paid $1.4 million in the last half of last year.

Last year, Sanders seemed to tire of the scrutiny being paid to her office and her spending. Sanders cited her family’s safety as she tried to shutter any attempts to see her travel records, taking the unusual step of calling a special session of the state Legislature to protect herself from the menace of transparency.

Notably, the governor had also recently been implicated in an Arkansas Freedom of Information Act case for these kinds of records.

The attempt to gut the law included a laundry list of carve-outs unrelated to safety, such as walking back the ability of public-records plaintiffs to recover attorney's fees when they win their case. Other attempts to scale back Arkansas' FOIA earlier in the year had not passed, and the state attorney general’s office was already working to study what improvements could be made to the law.  

Fortunately, the people of Arkansas came out to support the principle of government transparency, even as their governor decided she shouldn’t need to deal with it anymore. Over a tense few days, dozens of Arkansans lined up to testify in defense of the state FOIA and the value of holding elected officials, like Sanders, accountable to the people.

By the time the session wound down, the state Legislature had gone through multiple revisions. The sponsors walked back most of the extreme asks and added a requirement for the Arkansas State Police to provide quarterly reports on some of the governor’s travel costs. However, other details of that travel, like companions and the size of the security team, ultimately became exempt. Sanders managed to twist the whole fiasco into a win, though it would be a great surprise if the Legislature didn’t reconvene this year with some fresh attempts to take a bite out of FOIA.

While such a blatant attempt to bash public transparency is certainly a loser move, it clearly earns Sanders a win in the FOILIES—and the distinction of being one of the least transparent government officials this year.

The feds heavily redacted an email about reclassifying cannabis from a Schedule I to a Schedule III substance.

Bloomberg reporters got a major scoop when they wrote about a Health and Human Services memo detailing how health officials were considering major changes to the federal restrictions on marijuana, recommending reclassifying it from a Schedule I substance to Schedule III.

Currently, the Schedule I classification for marijuana puts it in the same league as heroin and LSD, while Schedule III classification would indicate lower potential for harm and addiction along with valid medical applications.

Since Bloomberg viewed but didn’t publish the memo itself, reporters from the Cannabis Business Times filed a FOIA request to get the document into the public record. Their request was met with limited success: HHS provided a copy of the letter, but redacted virtually the entire document besides the salutation and contact information. When pressed further by CBT reporters, the DEA and HHS would only confirm what the redacted documents had already revealed—virtually nothing.

HHS handed over the full, 250-page review several months later, after a lawsuit was filed by an attorney in Texas. The crucial information the agencies had fought so hard to protect: “Based on my review of the evidence and the FDA’s recommendation, it is my recommendation as the Assistant Secretary for Health that marijuana should be placed in Schedule III of the CSA.”

Increasingly, federal and state government agencies require public records requesters to submit their requests through online portals. It’s not uncommon for these portals to be quite lacking. For example, some portals fail to provide space to include information crucial to requests.

But the Air Force deserves special recognition for the changes it made to its submission portal, which asked requesters if they would  agree to limit their requests to  information that the Air Force deemed "clearly releasable.” You might think, “surely the Air Force defined this vague ‘clearly releasable’ information.” Alas, you’d be wrong: The form stated only that requesters would “agree to accept any information that will be withheld in compliance with the principles of FOIA exemptions as a full release.” In other words, the Air Force asked requesters to give up the fight over information before it even began, and to accept the Air Force's redactions and rejections as non-negotiable.

Following criticism, the Air Force jettisoned the update to its portal to undo these changes. Moving forward, it's "clear" that it should aim higher when it comes to transparency.

Upon taking office in 2018, Ontario Premier Doug Ford was determined to shake up the Canadian province’s healthcare system. His administration has been a bit more tight-lipped, however, about the results of that invasive procedure. Under Ford, Ontario’s Ministry of Health is fighting the release of information on how understaffed the province’s medical system is, citing “economic and other interests.” The government’s own report, partially released to Global News, details high attrition as well as “chronic shortages” of nurses.

The reporters’ attempts to find out exactly how understaffed the system is, however, were met with black-bar redactions. The government claims that releasing the information would negatively impact “negotiating contracts with health-care workers.” However, the refusal to release the information hasn’t helped solve the problem; instead, it’s left the public in the dark about the extent of the issue and what it would actually cost to address it.

Global News has appealed the withholdings. That process has dragged on for over a year, but a decision is expected soon.

Courts are usually transparent by default. People can walk in to watch hearings and trials, and can get access to court records online or at the court clerk’s office. And there are often court rules or state laws that ensure courts are public.

Apparently, the majority of Mississippi Justice Courts don’t feel like following those rules. An investigation by ProPublica and the Northeast Mississippi Daily Journal found that nearly two-thirds of these county-level courts obstructed public access to basic information about law enforcement’s execution of search warrants. This blockade not only appeared to violate state rules on court access; it frustrated the public’s ability to scrutinize when police officers raid someone’s home without knocking and announcing themselves.

The good news is that the Daily Journal is pushing back. It filed suit in the justice court in Union County, Miss., and asked for an end to the practice of never making search-warrant materials public.

Mississippi courts are unfortunately not alone in their efforts to keep search warrant records secret. The San Bernardino Superior Court of California sought to keep secret search warrants used to engage in invasive digital surveillance, only disclosing most of them after the EFF sued.

Does the public really have a right to know if their tax dollars pay for a private political event?

Former Superintendent of Public Instruction Brian Schroeder and Chief Communications Officer Linda Finnerty in the Wyoming Department of Education didn’t seem to think so, according to Laramie County Judge Steven Sharpe.

Sharpe, in his order requiring disclosure of the records, wrote that the two were more concerned with “covering the agency’s tracks” and acted in “bad faith” in complying with Wyoming’s state open records law.

The lawsuit proved that Schroeder originally used public money for a "Stop the Sexualization of Our Children" event and provided misleading statements to the plaintiffs about the source of funding for the private, pro-book-banning event.

The former superintendent had also failed to provide texts and emails sent via personal devices that were related to the planning of the event, ignoring the advice of the state’s attorneys. Instead, Schroeder decided to “shop around” for legal advice and listen to a friend, private attorney Drake Hill, who told him to not provide his cell phone for inspection.

Meanwhile, Finnerty and the Wyoming Department of Education “did not attempt to locate financial documents responsive to plaintiffs’ request, even though Finnerty knew or certainly should have known such records existed.”

Transparency won this round with the disclosure of more than 1,500 text messages and emails—and according to Sharpe, the incident established a legal precedent on Wyoming public records access.

In 2020, Open Justice Baltimore sued the Baltimore Police Department over the agency's demand that the nonprofit watchdog group pay more than $1 million to obtain copies of use-of-force investigation files. 

The police department had decreased their assessment to $245,000 by the time of the lawsuit, but it rejected the nonprofit’s fee waiver, questioning the public interest in the records and where they would change the public's understanding of the issue. The agency also claimed that fulfilling the request would be costly and burdensome for its short-staffed police department.

In 2023, Maryland’s Supreme Court issued a sizzling decision criticizing the BPD’s $245,000 fee assessment and its refusal to waive that fee in the name of public interest. The Supreme Court found that the public interest in how the department polices itself was clear and that the department should have considered how a denial of the fee waiver would “exacerbate the public controversy” and further “the perception that BPD has something to hide.”

The Supreme Court called BPD’s fee assessment “arbitrary and capricious” and remanded the case back to the police department, which must now reconsider the fee waiver. The unanimous decision from the state’s highest court did not mince its words on the cost of public records, either: “While an official custodian’s discretion in these matters is broad,” the opinion reads, “it is not boundless.”

Alien registration files, also commonly known as “A-Files,” contain crucial information about a non-citizen’s interaction with immigration agencies, and are central to determining eligibility for immigration benefits.

However, U.S. immigration agencies have routinely failed to release alien files within the statutory time limit for responding, according to Nightingale et al v. U.S. Citizenship and Immigration Services et al, a class-action lawsuit by a group of immigration attorneys and individual requesters.

The attorneys filed suit in 2019 against the U.S. Citizenship and Immigration Services, the Department of Homeland Security and U.S. Immigration and Customs Enforcement. In 2020, Judge William H. Orrick ruled that the agencies must respond to FOIA requests within 20 business days, and provide the court and class counsel with quarterly compliance reports. The case remains open.

With U.S. immigration courts containing a backlog of more than 2 million cases as of October of last year, according to the U.S. Government Accountability Office, the path to citizenship is bogged down for many applicants. The failure of immigration agencies to comply with statutory deadlines for requests only makes navigating the immigration system even more challenging. There is reason for hope for applicants, however. In 2022, Attorney General Merrick Garland made it federal policy to not require FOIA requests for copies of immigration proceedings, instead encouraging agencies to make records more readily accessible through other means.

Even the A-File backlog itself is improving. In the last status report, filed by the Department of Justice, they wrote that “of the approximately 119,140 new A-File requests received in the current reporting period, approximately 82,582 were completed, and approximately 81,980 were timely completed.”

Some agencies claim outrageous fees for redacting documents to deter public access.

OpenOversightVA requested copies of general procedures—the basic outline of how police departments run—from localities across Virginia. While many departments either publicly posted them or provided them at no charge, Richmond Police responded with a $7,873.14 invoice. That’s $52.14 an hour to spend one hour on “review, and, if necessary, redaction” on each of the department’s 151 procedures.

This Foilies “winner” was chosen because of the wide gap between how available the information should be, and the staggering cost to bring it out of the file cabinet.

As MuckRock’s agency tracking shows, this is hardly an aberration for the agency. But this estimated invoice came not long after the department’s tear-gassing of protesters in 2020 cost the city almost $700,000. At a time when other departments are opening their most basic rulebooks (in California, for example, every law enforcement agency is required to post these policy manuals online), Richmond has been caught attempting to use a simple FOIA request as a cash cow.

The Foilies (Creative Commons Attribution License) were compiled by the Electronic Frontier Foundation (Director of Investigations Dave Maass, Senior Staff Attorney Aaron Mackey, Legal Fellow Brendan Gilligan, Investigative Researcher Beryl Lipton) and MuckRock (Co-Founder Michael Morisy, Data Reporter Dillon Bergin, Engagement Journalist Kelly Kauffman, and Contributor Tom Nash), with further review and editing by Shawn Musgrave. Illustrations are by EFF Designer Hannah Diaz. The Foilies are published in partnership with the Association of Alternative Newsmedia. 

Around the globe, freedom of expression varies wildly in definition, scope, and level of access. The impact of the digital age on perceptions and censorship of speech has been felt across the political spectrum on a worldwide scale. In the debate over what counts as free expression and how it should work in practice, we often lose sight of how different forms of censorship can have a negative impact on different communities, and especially marginalized or vulnerable ones. This International Women’s Day, spend some time with four stories of hope and inspiration that teach us how to reflect on the past to build a better future.

An internet that is safe for sex workers is an internet that is safer for everyone. Though the effects of stigmatization and criminalization run deep, the sex worker community exemplifies how technology can help people reduce harm, share support, and offer experienced analysis to protect each other. Public interest technology lawyer Kendra Albert and sex worker, activist, and researcher Danielle Blunt have been fighting for sex workers’ online rights for years and say that holding online platforms legally responsible for user speech can lead to censorship that hurts us all. They join EFF’s Cindy Cohn and Jason Kelley in this podcast to talk about protecting all of our free speech rights.

Sandra (Sandy) Ordoñez is dedicated to protecting women being harassed online. Sandra is an experienced community engagement specialist, a proud NYC Latina resident of Sunset Park in Brooklyn, and a recipient of Fundación Carolina’s Hispanic Leadership Award. She is also a long-time diversity and inclusion advocate, with extensive experience incubating and creating FLOSS and Internet Freedom community tools. In this interview with EFF’s Jillian C. York, Sandra discusses free speech and how communities that are often the most directly affected are the last consulted.

From the days of chattel slavery until the modern Black Lives Matter movement, Black communities have developed innovative ways to fight back against oppression. EFF's Director of Engineering, Alexis Hancock, documented this important history of codes, ciphers, underground telecommunications and dance in a blog post that became one of our favorite articles of 2021. In collaboration with The Nib and illustrator Chelsea Saunders, "Coded Resistance" was adapted into comic form to further explore these stories, from the coded songs of Harriet Tubman to Darnella Frazier recording the murder of George Floyd.

Evan Greer is many things: a musician, an activist for LGBTQ issues, the Deputy Director of Fight for the Future, and a true believer in the free and open internet. In this interview, EFF’s Jillian C. York spoke with Evan about the state of free expression, and what we should be doing to protect the internet for future activism. Among the many topics discussed was how policies that promote censorship—no matter how well-intentioned—have historically benefited the powerful and harmed vulnerable or marginalized communities. Evan talks about what we as free expression activists should do to get at that tension and find solutions that work for everyone in society.

This blog is part of our International Women’s Day series. Read other articles about the fight for gender justice and equitable digital rights for all.

1. Four Reasons to Protect the Internet this International Women’s Day
2. Four Infosec Tools for Resistance this International Women’s Day
3. Four Actions You Can Take To Protect Digital Rights this International Women’s Day

This International Women’s Day, defend free speech, fight surveillance, and support innovation by calling on our elected politicians and private companies to uphold our most fundamental rights—both online and offline.

Privacy fears should never stand in the way of healthcare. That's why this common-sense federal bill, sponsored by U.S. Rep. Sara Jacobs, will require businesses and non-governmental organizations to act responsibly with personal information concerning reproductive health care. Specifically, it restricts them from collecting, using, retaining, or disclosing reproductive health information that isn't essential to providing the service someone asks them for. The protected information includes data related to pregnancy, menstruation, surgery, termination of pregnancy, contraception, basal body temperature or diagnoses. The bill would protect people who, for example, use fertility or period-tracking apps or are seeking information about reproductive health services. It also lets people take on companies that violate their privacy with a strong private right of action.

Study after study shows that facial recognition algorithms are not always reliable, and that error rates spike significantly when involving faces of folks of color, especially Black women, as well as trans and nonbinary people. Because of face recognition errors, a Black woman, Porcha Woodruff, was wrongfully arrested, and another, Lamya Robinson, was wrongfully kicked out of a roller rink.

Yet this technology is widely used by law enforcement for identifying suspects in criminal investigations, including to disparately surveil people of color. At the local, state, and federal level, people across the country are urging politicians to ban the government’s use of face surveillance because it is inherently invasive, discriminatory, and dangerous. Many U.S. cities have done so, including San Francisco and Boston. Now is our chance to end the federal government’s use of this spying technology. 

Advocates of women's equality often face surveillance and repression from powerful interests. That's why they need strong end-to-end encryption. But if the so-called “STOP CSAM Act” passes, it would undermine digital security for all internet users, impacting private messaging and email app providers, social media platforms, cloud storage providers, and many other internet intermediaries and online services. Free speech for women’s rights advocates would also be at risk. STOP CSAM would also create a carveout in Section 230, the law that protects our online speech, exposing platforms to civil lawsuits for merely hosting a platform where part of the illegal conduct occurred. Tell Congress: don't pass this law that would undermine security and free speech online, two critical elements for fighting for equality for all genders.  

Since Hamas’ attack on Israel on October 7, Meta’s biased moderation tools and practices, as well as policies on violence and incitement and on dangerous organizations and individuals (DOI) have led to Palestinian content and accounts being removed and banned at an unprecedented scale. As Palestinians and their supporters have taken to social platforms to share images and posts about the situation in the Gaza strip, some have noticed their content suddenly disappear, or had their posts flagged for breaches of the platforms’ terms of use. In some cases, their accounts have been suspended, and in others features such liking and commenting have been restricted. 

This has an exacerbated impact for the most at risk groups in Gaza, such as those who are pregnant or need reproductive healthcare support, as sharing information online is both an avenue to communicating the reality with the world, as well as sharing information with others who need it the most.

This blog is part of our International Women’s Day series. Read other articles about the fight for gender justice and equitable digital rights for all.

1. Four Reasons to Protect the Internet this International Women’s Day
2. Four Infosec Tools for Resistance this International Women’s Day
3. Four Voices You Should Hear this International Women’s Day

While online violence is alarmingly common globally, women are often more likely to be the target of mass online attacks, nonconsensual leaks of sensitive information and content, and other forms of online violence. 

This International Women’s Day, visit EFF’s Surveillance Self-Defense (SSD) to learn how to defend yourself and your friends from surveillance. In addition to tutorials for installing and using security-friendly software, SSD walks you through concepts like making a security plan, the importance of strong passwords, and protecting metadata.

This IWD, learn what a security plan looks like and how you can build one. Trying to protect your online data—like pictures, private messages, or documents—from everything all the time is impractical and exhausting. But, have no fear! Security is a process, and through thoughtful planning, you can put together a plan that’s best for you. Security isn’t just about the tools you use or the software you download. It begins with understanding the unique threats you face and how you can counter those threats. 

Depending on your circumstances, you may need to protect yourself against the social network itself, against other users of the site, or both. Social networks are among the most popular websites on the internet. Facebook, TikTok, and Instagram each have over a billion users. Social networks were generally built on the idea of sharing posts, photographs, and personal information. They have also become forums for organizing and speaking. Any of these activities can rely on privacy and pseudonymity. Visit our SSD guide to learn how to protect yourself.

Keep yourself, your devices, and your community safe while you make your voice heard. Now, more than ever, people must be able to hold those in power accountable and inspire others through the act of protest. Protecting your electronic devices and digital assets before, during, and after a protest is vital to keeping yourself and your information safe, as well as getting your message out. Theft, damage, confiscation, or forced deletion of media can disrupt your ability to publish your experiences, and those engaging in protest may be subject to search or arrest, or have their movements and associations surveilled. 

Everything you say in a chat app should be private, viewable by only you and the person you're talking with. But that's not how all chats or DMs work. Most of those communication tools aren't end-to-end encrypted, and that means that the company who runs that software could view your chats, or hand over transcripts to law enforcement. That's why it's best to use a chat app like Signal any time you can. Signal uses end-to-end encryption, which means that nobody, not even Signal, can see the contents of your chats. Of course, you can't necessarily force everyone you know to use the communication tool of your choice, but thankfully other popular tools, like Apple's Messages, WhatsApp and more recently, Facebook's Messenger, all use end-to-end encryption too, as long as you're communicating with others on those same platforms. The more people who use these tools, even for innocuous conversations, the better.

On International Women’s Day and every day, stay safe out there! Surveillance self-defense can help.

This blog is part of our International Women’s Day series. Read other articles about the fight for gender justice and equitable digital rights for all.

1. Four Reasons to Protect the Internet this International Women’s Day
2. Four Voices You Should Hear this International Women’s Day
3. Four Actions You Can Take To Protect Digital Rights this International Women’s Day

Today is International Women’s Day, a day celebrating the achievements of women globally but also a day marking a call to action for accelerating equality and improving the lives of women the world over. 

The internet is a vital tool for women everywhere—provided they have access and are able to use it freely. Here are four reasons why we’re working to protect the free and open internet for women and everyone.

Data privacy, free expression, and freedom from surveillance intersect with the broader fight for reproductive justice and safe access to abortion. Like so many other aspects of managing our healthcare, these issues are fundamentally tied to our digital lives. With the decision of Dobbs v. Jackson to overturn the protections that Roe v. Wade offered for people seeking abortion healthcare in the United States, what was benign data before is now potentially criminal evidence. This expanded threat to digital rights is especially dangerous for BIPOC, lower-income, immigrant, LGBTQ+ people and other traditionally marginalized communities, and the healthcare providers serving these communities. The repeal of Roe created a lot of new dangers for people seeking healthcare. EFF is working hard to protect your rights in two main areas: 1) your data privacy and security, and 2) your online right to free speech.

The internet is an essential service that enables people to build and create communities, shed light on injustices, and acquire vital knowledge that might not otherwise be available. Governments are very aware of their power to cut off access to this crucial lifeline, and frequently undertake targeted initiatives to shut down civilian access to the internet. In Iran, people have suffered Internet and social media blackouts on and off for nearly two years, following an activist movement rising up after the death of Mahsa Amini, a woman murdered in police custody for refusing to wear a hijab. The movement gained global attention, and in response, the Iranian government rushed to control visibility on the injustice. Social media has been banned in Iran and intermittent shutdowns of the entire peoples’ access to the Internet has cost the country millions, all in effort to control the flow of information and quell political dissidence.

At EFF, we’ve been sounding the alarm about the way physical trackers like AirTags and Tiles can be slipped into a target’s bag or car, allowing stalkers and abusers unprecedented access to a person’s location without their knowledge. We’ve also been calling attention to stalkerware, commercially-available apps that are designed to be covertly installed on another person’s device for the purpose of monitoring their activity without their knowledge or consent. This is a huge threat to survivors of domestic abuse as stalkers can track their locations, as well as access a lot of sensitive information like all passwords and documents. For example, Imminent Monitor, once installed on a victim’s computer, could turn on their webcam and microphone, allow perpetrators to view their documents, photographs, and other files, and record all keystrokes entered. Everyone involved in these industries has the responsibility to create a safeguard for people.

An increase in anti-LGBTQ+ intolerance is harming individuals and communities both online and offline across the globe. Several countries are introducing explicitly anti-LGBTQ+ initiatives to restrict freedom of expression and privacy, which is in turn fuelling offline intolerance against LGBTQ+ people. Across the United States, a growing number of states prohibited transgender youths from obtaining gender-affirming health care, and some restricted access for transgender adults. That’s why we’ve worked to pass data sanctuary laws in pro-LGBTQ+ states to shield health records from disclosure to anti-LGBTQ+ states.

The problem is global. In Jordan, the new Cybercrime Law of 2023 in Jordan restricts encryption and anonymity in digital communications. And in Ghana, the country’s Parliament just voted to pass the country’s draconian Family Values Bill, which introduces prison sentences for those who partake in LGBTQ+ sexual acts, as well as those who promote the rights of gay, lesbian or other non-conventional sexual or gender identities. EFF is working to expose and resist laws like these, and we hope you’ll join us!

This blog is part of our International Women’s Day series. Read other articles about the fight for gender justice and equitable digital rights for all.

1. Four Infosec Tools for Resistance this International Women’s Day
2. Four Voices You Should Hear this International Women’s Day
3. Four Actions You Can Take To Protect Digital Rights this International Women’s Day

Running the Atlas of Surveillance, our project to map and inventory police surveillance across the United States, means experiencing emotional extremes.

Whenever we announce that we've added new data points to the Atlas, it comes with a great sense of satisfaction. That's because it almost always means that we're hundreds or even thousands of steps closer to achieving what only a few years ago would've seemed impossible: comprehensively documenting the surveillance state through our partnership with students at the University of Nevada, Reno Reynolds School of Journalism.

At the same time, it's depressing as hell. That's because it also reflects how quickly and dangerously the surveillance technology is metastasizing.

We have the exact opposite feeling when we remove items from the Atlas of Surveillance. It's a little sad to see our numbers drop, but at the same time that change in data usually means that a city or county has eliminated a surveillance program.

That brings us to the biggest change in the Atlas since our launch in 2018. This week, we removed 2,530 data points: an entire category of surveillance. With the announcement from Amazon that its home surveillance company Ring will no longer facilitate warrantless requests for consumer video footage, we've decided to sunset that particular dataset.

While law enforcement agencies still maintain accounts on Ring's Neighbors social network, it seems to serve as a communications tool, a function on par with services like Nixle and Citizen, which we currently don't capture in the Atlas. That's not to say law enforcement won't be gathering footage from Ring cameras: they will, through legal process or by directly asking residents to give them access via the Fusus platform. But that type of surveillance doesn't result from merely having a Neighbors account (agencies without accounts can use these methods to obtain footage), which was what our data documented. You can still find out which agencies are maintaining camera registries through the Atlas. 

Ring's decision was a huge victory – and the exact outcome EFF and other civil liberties groups were hoping for. It also has opened up our capacity to track other surveillance technologies growing in use by law enforcement. If we were going to remove a category, we decided we should add one too.

Atlas of Surveillance users will now see a new type of technology: Third-Party Investigative Platforms, or TPIPs. Commons TPIP products include Thomson Reuters CLEAR, LexisNexis Accurint Virtual Crime Center, TransUnion TLOxp, and SoundThinking CrimeTracer (formerly Coplink X from Forensic Logic). These are technologies we've been watching for awhile, but have been struggling to categorize and define. But here's the definition we've come up with:

Third-Party Investigative Platforms are cloud-based software systems that law enforcement agencies subscribe to in order to access, share, mine, and analyze various sources of investigative data. Some of the data the agencies upload themselves, but the systems also provide access to data from other law enforcement, as well as from commercial sources and data brokers. Many products offer AI features, such as pattern identification, face recognition, and predictive analytics. Some agencies employ multiple TPIPs.

We are calling this new category a beta feature in the Atlas, since we are still figuring out how best to research and compile this data nationwide. You'll find fairly comprehensive data on the use of CrimeTracer in Tennessee and Massachusetts, because both states provide the software to local law enforcement agencies throughout the state. Similarly, we've got a large dataset for the use of the Accurint Virtual Crime Center in Colorado, due to a statewide contract. (Big thanks to Prof. Ran Duan's Data Journalism students for working with us to compile those lists!) We've also added more than 60 other agencies around the country, and we expect that dataset to grow as we hone our research methods.

If you've got information on the use of TPIPs in your area, don't hesitate to reach out. You can email us at aos@eff.org, submit a tip through our online form, or file a public records request using the template that EFF and our students have developed to reveal the use of these platforms. 

Join us in San Francisco on May 9th for EFF's 8th annual Tech Trivia Night! Explore the obscure minutiae of digital security, online rights, and internet culture.

Enjoy delicious tacos, churros, and complimentary adult beverages and soft drinks as you and your team battle through rounds of questions—and cutthroat live judging!—to see who will take home the coveted 1st, 2nd, and 3rd place trophies and EFF swag!

Register Now

$45 for CURRENT EFF Members • $55 for General Admission

Thursday, May 9th, 2024 at Public Works from 6 PM to 10 PM
This event is 21+. Please remember to bring ID and a mask.

Thanks to EFF's Luminary Organizational Members DuckDuckGo, No Starch Press, and the Hering Foundation for their year-round support of EFF's mission.

Fighting for first place at EFF’s Tech Trivia Night helps us fight for your rights online! Sponsor one of our annual events and join the movement for digital privacy, free speech, and innovation. Please contact tierney@eff.org for more information.

EFF is dedicated to a harassment-free experience for everyone, and all participants are encouraged to view our full Event Expectations.

Van Kampen is notaris in Oss en treedt al in juli toe tot het bestuur, aanvankelijk in de plaats van huidig lid Thijs Flokstra, om in oktober het stokje als voorzitter over te nemen van Ploumen. Van Kampen is sinds 1996 werkzaam in het notariaat, en werd in 2005 als notaris benoemd.
Naast Van Kampen zijn de Groningse notaris Jan Janssens (per direct), de Arnhemse notaris Karen Verkerk (per 1 oktober 2024) en de Deventer notaris Jeroen Prinsen (per 1 mei 2025) benoemd. Verkerk gaat de functie van penningmeester vervullen.

In 2019 werd Van Kampen op deze website uitgeroepen tot Mr. van de week. Dat was destijds in het kader van de presentatie van haar boek Notaris in beeld. Daarin probeert ze notaristaal begrijpelijker en toegankelijker te maken door infographics en eenvoudigere taal. Van Kampen vertelde dat ze op het idee voor het boek kwam doordat ze merkte dat ontwerpakten steeds slechter werden geleden door cliënten. “Wij hadden bij onze akten al bijsluiters als toelichting op de akte. Deze bijsluiters hielpen wel, maar niet voldoende. Bovendien bestonden de bijsluiters uitsluitend uit tekst. Ik maak bij besprekingen met cliënten veel verduidelijkende tekeningen. Ook probeer ik veel uit te leggen aan de hand van beeldspraak, bijvoorbeeld: een testament moet u zien als een gereedschapskist. Ik bedacht toen: waarom ga ik deze tekeningen en beeldspraak niet uitwerken met een vormgever?”

Het bericht Barbara van Kampen benoemd als inkomend voorzitter van de KNB verscheen eerst op Mr. Online.

“Een (pand)akte is niets meer dan een handtekening op een stuk papier, dus waarom zou je geen getekend bierviltje bij de Belastingdienst kunnen registeren?” zo steekt Orbán van wal in zijn LinkedIn-post waarin hij de ludieke daad aankondigt. “Zo heb ik het zelf ook geleerd tijdens mijn rechtenstudie en al die jaren slikten mijn studenten dat ook voor zoete koek.”

Maar studenten worden kritischer, zo blijkt maar weer eens, want vorig jaar kreeg Orbán voor het eerst kritische vragen over zijn bewering: “’Hoe weet je dat zo zeker, want heb je dat ooit zelf uitgeprobeerd?’ Met het schaamrood op mijn kaken moest ik toen toegeven dat ik dat nog nooit had gedaan,” zo geeft hij toe. Reden genoeg voor Orbán om de daad bij het woord proberen te voegen!

Orbán trok de stoute schoenen aan en printte de volledige tekst die hoort bij een pandakte op de achterkant van een heus bierviltje, compleet met handtekening. Het resultaat diende hij in, en toen was het wachten op antwoord op de grote hamvraag: accepteert de Belastingdienst dit schriftelijke pandrecht?

“Na weken van spanning kreeg ik vandaag het verlossende antwoord van de Belastingdienst: het kan!” zo luidt de ontknoping van verhaal. Bij zijn LinkedIn-post deelt hij een foto van het bewuste bierviltje, dat inderdaad voorzien is van een officiële registratiestempel.

Het bericht Pandrecht op achterkant bierviltje? Advocaat voegt daad bij het woord verscheen eerst op Mr. Online.

Wanneer burgers bezwaar aantekenen tegen een besluit, maar de reactie op dit bezwaar de redelijke termijn overschrijdt, hebben zij recht op vergoeding van immateriële schade en griffierechten. Per half jaar overschrijding gold vaak een vergoeding van 500 euro, ongeacht het bedrag dat gemoeid was met het besluit waartegen bezwaar werd aangetekend. Daardoor kon de situatie ontstaan dat de vergoeding vele malen hoger uitviel dan het bedrag waarover wordt geprocedeerd.

Als onderdeel van de Wet herwaardering proceskostenvergoedingen WOZ en bpm – bedoeld om het verdienmodel van ‘no cure no pay’-bureaus aan te pakken – is het bedrag in WOZ en bpm-zaken per 1 januari van dit jaar verlaagd naar 50 euro.

Er liggen echter nog heel wat zaken bij de rechter die speelden voordat deze verlaging er kwam.  Inmiddels hebben verschillende rechtbanken en hoven zich uitgesproken over de vergoeding van immateriële schade wegens termijnoverschrijding, maar de uitkomsten daarvan verschillen.

Bij de Hoge Raad speelt momenteel een zaak van een man die het niet eens was met een bedrag van €1,20 aan invorderingsrente dat hij terugkreeg van zijn gemeente. Hij vond dat dit bedrag naar boven moest worden afgerond. Toen de gemeenteambtenaar dat weigerde, startte de man een procedure om 80 cent terug te krijgen.

Nadat hij bij de rechtbank en het hof bot ving, kwam de zaak uiteindelijk terecht bij de Hoge Raad. De man vordert inmiddels 1.500 euro vergoeding voor psychische schade: driemaal de 500 euro per half jaar.

Advocaat-generaal Wattel maakte in zijn conclusie gehakt van het gedrag van de man, die in zijn ogen kostbare tijd en capaciteit bij de rechterlijke macht verkwistte met een onzinnige zaak, en zich daarvoor moest schamen. Hij verfoeide tevens de relatief hoge vergoeding van 500 euro per half jaar, die in dit geval in zijn ogen een ‘zichzelf voortbrengend altijd-prijs-circus’ zou veroorzaken.

Hoewel er momenteel nog geen uitspraak van de Hoge Raad ligt in deze zaak, vermoedt de Bossche belastingkamer dat de raadsheren mogelijk niet op alle aangekaarte punten van de AG zullen ingegaan. Omdat men in dat geval alsnog duidelijkheid wil van de Hoge Raad rondom deze vergoedingen, heeft het hof prejudiciële vragen gesteld in een tussenuitspraak.

Een daarvan is of de vergoeding voor immateriële schade in procedures over de WOZ (en eventueel andere heffingen) moet worden gemaximeerd op 50 euro per zes maanden overschrijding.

Het bericht Hof Den Bosch stelt prejudiciële vragen over immateriële schade in WOZ-zaak verscheen eerst op Mr. Online.