Visa Wants to Buy Plaid, and With It, Transaction Data for Millions of People

Visa, the credit card network, is trying to buy financial technology company Plaid for $5.3 billion. The merger is bad for a number of reasons. First and foremost, it would allow a giant company with a controlling market share and a history of anticompetitive practices to snap up its fast-growing competition in the market for payment apps. But Plaid is more than a potential disruptor, it’s also sitting on a massive amount of financial data acquired through questionable means. By buying Plaid, Visa is buying all of its data. And Plaid’s users—even those protected by California’s new privacy law—can’t do anything about it.

Since mergers and acquisitions often fall outside the purview of privacy laws, only a pointed intervention by government authorities can stop the sale. Thankfully, this month, the US Department of Justice filed a lawsuit to do just that. This merger is about more than just competition in the financial technology (fintech) space; it’s about the exploitation of sensitive data from hundreds of millions of people. Courts should stop the merger to protect both competition and privacy.

Visa’s Monopolistic Hedge

The Department of Justice lawsuit outlines a very simple motive for the acquisition. Visa, it says, already controls around 70% of the digital debit card payment market, from which it earned approximately $2 billion last year. (Mastercard, at 25% market share, is Visa’s only significant competitor.) Thanks to network effects with merchants and consumers, plus exclusivity clauses in its agreements with banks, Visa is comfortably insulated from threats by traditional competitors. But apps like Venmo have started—just barely—to eat away at the digital transaction market. And Plaid sits at the center of that new wave, providing the infrastructure that Venmo and hundreds of other apps use to send money around the world.

According to the DoJ, a Visa executive predicted that Plaid would undercut its debit card processing business eventually, and that buying Plaid would be an “insurance policy” to protect Visa’s dominant market share. The lawsuit alleges that Plaid already had plans to leverage its relationships with banks and consumers to launch a new debit service. Seen through this lens, the acquisition is a simple preemptive strike against an emerging threat in one of Visa’s core markets. Challenging the purchase of a smaller company by a giant one, under the theory that the purchase eliminates future competition rather than creating a monopoly in the short term, is a strong step for the DoJ, and one we hope to see repeated in technology markets.

But users’ interest in the Visa-Plaid merger should extend beyond fears of market concentration. Both companies are deeply involved in the collection and monetization of personal data. And as the DoJ’s lawsuit underscores, “Acquiring Plaid would also give Visa access to Plaid’s enormous trove of consumer data, including real-time sensitive information about merchants and Visa’s rivals.”

Plaid, Yodlee, and the sorry state of fintech privacy

Plaid is what’s known as a “data aggregator” in the fintech space. It provides the infrastructure that connects banks to financial apps like Venmo and Coinbase, and its customers are usually apps that need programmatic access to a bank account.

It works like this: first, an app developer installs code from Plaid. When a user downloads the app, Plaid asks the user for their bank credentials, then logs in on their behalf. Plaid then has access to all the information the bank would normally share with the user, including balances, assets, transaction history, and debt. It collects data from the bank and passes it along to the app developer. From then on, the app can use Plaid’s services to initiate electronic transfers to and from the bank account, or to collect new information about the user’s activity.

In a shadowy industry, Plaid has tried to cultivate a reputation as the “trustworthy” data aggregator. Envestnet/Yodlee, a direct competitor, has long sold consumer behavior data to marketers and hedge funds. The company claims the data are “anonymous,” but reporters have discovered that that’s not always the case. And Finicity, another financial data aggregator, uses its access to moonlight as a credit reporting agency. A glance at data broker listings shows a thriving marketplace for individually-identified transactions data, with dozens of sellers and untold numbers of buyers. But Plaid is adamant that it doesn’t sell or monetize user data beyond its core business proposition. Until recently, Plaid has often been mentioned alongside Yodlee in order to contrast the two companies’ approaches, when it’s been mentioned at all.

Now, in the wake of the Visa announcement, two new lawsuits (Cottle et al v. Plaid Inc and Evans v. Plaid Inc) claim that Plaid has exploited users all along. Chief among the accusations is that Plaid’s interface misleads users into sharing their bank passwords with the company, a practice that plaintiffs allege runs afoul of California’s anti-phishing law. The lawsuits also claim that Plaid collected much more data than was necessary, deceived users about what it was doing, and made money by selling that data back to the apps which used it.

EFF is not involved in either lawsuit against Visa/Plaid, nor are we taking any position on the validity of the legal claims. We’re not privy to any information that hasn’t been reported publicly. But many of the facts presented by the lawsuits are relatively straightforward, and can be verified with Plaid’s own documentation. For example, at the time of writing, still hosts example sign-in flow with Plaid. Plaid does not dispute that it collects users’ real bank credentials in order to log in on their behalf. You can see for yourself what that looks like: the interface puts the bank’s logo front and center, and looks for all the world like a secure OAuth page. Try to think about whether, seeing this for the first time, you’d really understand who’s getting what information.

A series of mobile application screenshots showing how a user would log in to their Citi bank account with Plaid.

Who’s getting your credentials? Not just Citi.

Many users might not realize the scope of the data that Plaid receives. Plaid’s Transactions API gives both Plaid and app developers access to a user’s entire transaction and balance history, including a geolocation and category for each purchase made. Plaid’s other APIs grant access to users’ liabilities, including credit card debt and student loans; their investments, including individual stocks and bonds; and identity information, including name, address, email, and phone number.

A screenshot from a mobile application, stating "Plaid Demo uses Plaid to link your bank," with a button labeled "continue" at the bottom.

A screenshot from Plaid’s demo. What, exactly, does “link” mean?

For some products, Plaid’s demo will throw up a dialog box asking users to “Allow” the app to access certain kinds of data. (It doesn’t explain that Plaid will have access as well.) When we tested it, access to the “transactions,” “auth,” “identity,” and “investments” products didn’t trigger any prompts beyond the default “X uses Plaid to link to your bank” screen. It’s unclear how users are supposed to know what information an app will actually get, much less what they’ll do with it. And once a user enters their password, the data starts flowing.

Users can view the data they’re sharing through Plaid, and revoke access, after creating an account at This tool, which was apparently introduced in mid-2018 (after GDPR went into effect in Europe), is useful—for users who know where to look. But nothing in the standard “sign in with Plaid” flow directs users to the tool, or even lets them know it exists.

On the whole, it’s clear that Plaid was using questionable design practices to “nudge” people into sharing sensitive information.

What’s in it for Visa?

Whatever Plaid has been doing with its data until now, things are about to change.

Plaid is a hot fintech startup, but Visa thinks it can squeeze more out of Plaid than the company is making on its own. Visa is paying approximately 50 times Plaid’s annual revenue to acquire the company—a “very steep” sum by traditional metrics.

A huge part of Plaid’s value is its data. Like a canal on a major trade route, it sits at a key point between users and their banks, observing and directing flows of personal information both into and out of the financial system. Plaid currently makes money by charging apps for access to its system, like levying tariffs on those who pass through its port. But Visa is positioned to do much more.

For one, Visa already runs a targeted-advertising wing using customer transaction data, and thus has a straightforward way to monetize Plaid’s data stream. Visa aggregates transaction data from its own customers to create “audiences” based on their behavior, which it sells to marketers. It offers over two hundred pre-configured categories of users, including “recently engaged,” “international traveler – Mexico,” and “likely to have recently shifted spend from gasoline to public transportation services.” It also lets clients create custom audiences based on what people bought, where they bought it, and how much they spent.

A page from a Visa brochure for advertisers, inviting the reader to "discuss the best data points for your needs," including "category and brand spending," "time filters," "spend filters," and "travel filters."


Plaid’s wealth of transaction, liability, and identity information is good for more than selling ads. It can also be used to build financial profiles for credit underwriting, an obviously attractive application for credit-card magnate Visa, and to perform “identity matching” and other useful services for advertisers and lenders. Documents uncovered by the DoJ show that Visa is well aware of the value in Plaid’s data.

A sketch of a volcano partially submerged underwater. The words "bank connections, account validation, asset confirmation" are written on the volcano above the waterline and "fraud tools, identity matching, credit decisioning/underwriting, payment rails and delivery, advertising and marketing, financial management" are below the waterline.

Illustration by a Visa executive of Plaid’s untapped potential, included in Department of Justice filings. The executive “analogized Plaid to an island ‘volcano’ whose current capabilities are just ‘the tip showing above the water’ and warned that ‘what lies beneath, though, is a massive opportunity – one that threatens Visa.’” Note “identity matching,” “credit decisioning,” and “advertising and marketing”—all data-based businesses.

Through Plaid, Visa is about to acquire transaction data from millions of users of its competitors: banks, other credit and debit cards, and fintech apps. As TechCrunch has reported, “Buying Plaid is insurance against disruption for Visa, and also a way to know who to buy.” The DoJ went deeper into the data grab’s anticompetitive effects: “With this insight into which fintechs are more likely to develop competitive alternative payments methods, Visa could take steps to partner with, buy out, or otherwise disadvantage these up-and coming competitors,” positioning Visa to “insulate itself from competition.”

The Data-Sale Loophole

The California Privacy Rights Act, which amends the California Consumer Privacy Act (CCPA), was passed by California voters in early November. It’s the strongest law of its kind in the U.S., and it gives people a general right to opt out of the sale of their data. In addition, the Gramm-Leach-Bliley Act (GLBA), a federal law regulating financial institutions, allows Americans to tell financial institutions not to share their personal financial information. Since the CPRA exempts businesses which are already subject to GLBA, it’s not clear which of the two governs Plaid. But neither law restricts the transfer of data during a merger or acquisition. Plaid’s own privacy policy claims, loudly and clearly, that “We do not sell or rent personal information that we collect.” But elsewhere in the same section, Plaid admits it may share data “in connection with a change in ownership or control of all or a part of our business (such as a merger, acquisition, reorganization, or bankruptcy).” In other words, the data was always for sale under one condition: you had to buy everything.

That’s what Visa is doing. It’s acquiring everything Plaid has ever collected and—more importantly—access to data flows from everyone who uses a Plaid-connected app. It can monetize the data in ways Plaid never could. And the move completely side-steps restrictions on old-fashioned data sales.

Stop the Merger

It’s easy to draw parallels from the Visa/Plaid deal to other recent mergers. Some, like Facebook buying Instagram or Google buying YouTube, gave large companies footholds in new or emerging markets. Others, like Facebook’s purchase of Onavo, gave them data they could use to surveil both users and competitors. Still others, like Google’s acquisitions of Doubleclick and Fitbit, gave them abundant new inflows of personal information that they could fold into their existing databases. Visa’s acquisition of Plaid does all three.

The DoJ’s lawsuit argues that the acquisition would “unlawfully maintain Visa’s monopoly” and “unlawfully extend [Visa’s] advantage” in the U.S. online debit market, violating both the Clayton and Sherman antitrust acts. The courts should block Visa from buying up a nascent competitor and torrents of questionably-acquired data in one move.

Beyond this specific case, Congress should take a hard look at the trend of data-grab mergers taking place across the industry. New privacy laws often regulate the sharing or sale of data across company boundaries. That’s great as far as it goes—but it’s completely sidestepped by mergers and acquisitions. Visa, Google, and Facebook don’t need to buy water by the bucket, they can just buy the well. Moreover, analysts predict that this deal, if allowed to go through, could set off a spree of other fintech acquisitions. It may have already begun: just months after Visa announced its intention to buy Plaid, Mastercard (Visa’s rival in the debit duopoly) began the process of acquiring Plaid competitor Finicity. It’s long past time for better merger review and meaningful, enforceable restrictions on how companies can use our personal information.

Go to Source
Author: Bennett Cyphers

Let’s Stand Up for Home Hacking and Repair

Let’s tell the Copyright Office that it’s not a crime to modify or repair your own devices.

Every three years, the Copyright Office holds a rulemaking process where it grants the public permission to bypass digital locks for lawful purposes. In 2018, the Office expanded existing protections for jailbreaking and modifying your own devices to include voice-activated home assistants like Amazon Echo and Google Home, but fell far short of the broad allowance for all computerized devices that we’d asked for. So we’re asking for a similar exemption, but we need your input to make the best case possible: if you use a device with onboard software and DRM keeps you from repairing that device or modifying the software to suit your purposes, see below for information about how to tell us your story.

DMCA 1201: The Law That Launched a Thousand Crappy Products

Why is it illegal to modify or repair your own devices in the first place? It’s a long story. Congress passed the Digital Millennium Copyright Act in 1996. That’s the law that created the infamous “notice-and-takedown” process for allegations of copyright infringement on websites and social media platforms. The DMCA also included the less-known Section 1201, which created a new legal protection for DRM—in short, any technical mechanism that makes it harder for people to access or modify a copyrighted work. The DMCA makes it unlawful to bypass certain types of DRM unless you’re working within one of the exceptions granted by the Copyright Office.

Suddenly manufacturers had a powerful tool for restricting how their customers used their products: build your product with DRM, and you can argue that it’s illegal for others to modify or repair it.

The technology landscape was very different in 1996. At the time, when most people thought of DRM, they were thinking of things like copy protection on DVDs or other traditional media. Some of the most dangerous abuses of DRM today come in manufacturers’ use of it to limit how customers use their products—farmers being unable to repair their own tractors, or printer manufacturers trying to restrict users from buying third-party ink.

When the DMCA passed, manufacturers suddenly had a powerful tool for restricting how their customers used their products: build your product with DRM, and you can argue that it’s illegal for others to modify or repair it.

Section 1201 caught headlines recently when the RIAA attempted to use it to stop the distribution of youtube-dl, a tool that lets people download videos from YouTube and other user-uploaded video platforms. Fortunately, GitHub put the youtube-dl repository back up after EFF explained on behalf of youtube-dl’s developers that the tool doesn’t circumvent DRM.
Privacy info. This embed will serve content from

Abuse of legal protections for DRM isn’t just a United States problem, either. Thanks to the way in which copyright law has been globalized through a series of trade agreements, much of the world has similar laws on the books to DMCA 1201. That creates a worst-of-both-worlds scenario for countries that don’t have the safety valve of fair use to protect people’s free expression rights or processes like the Copyright Office rulemaking to remove the legal doubt around bypassing DRM for lawful purposes. The rulemaking process is deeply flawed, but it’s better than nothing.

Let’s Tell the Copyright Office: Home Hacking Is Not a Crime

Which brings us back to this year’s Copyright Office rulemaking. We’re asking the Copyright Office to grant a broad exception for people to take advantage of in modifying and repairing all software-enabled devices for their own use.

If you have a story about how:

  • someone in the United States;
  • attempted or planned to modify, repair, or diagnose a product with a software component; and
  • encountered a technological protection measure (including DRM or digital rights management—any form of software security measure that restricts access to the underlying software code, such as encryption, password protection, or authentication requirements) that prevented completing the modification, repair, or diagnosis (or had to be circumvented to do so)

—we want to hear from you! Please email us at with the information listed below, and we’ll curate the stories we receive so we can present the most relevant ones alongside our arguments to the Copyright Office. The comments we submit to the Copyright Office will become a matter of public record, but we will not include your name if you do not wish to be identified by us. Submissions should include the following information:

  1. The product you (or someone else) wanted to modify, repair, or diagnose, including brand and model name/number if available.
  2. What you wanted to do and why.
  3. How a TPM interfered with your project, including a description of the TPM.
    • What did the TPM restrict access to?
    • What did the TPM block you from doing? How?
    • If you know, what would be required to get around the TPM? Is there another way you could accomplish your goal without doing this?
  4. Optional: Links to relevant articles, blog posts, etc.
  5. Whether we may identify you in our public comments, and your name and town of residence if so. We will treat all submissions as anonymous unless you expressly give us this permission to identify you.

Go to Source
Author: Elliot Harmon

Podcast Episode: Control Over Users, Competitors, and Critics

Episode 004 of EFF’s How to Fix the Internet

Cory Doctorow joins EFF hosts Cindy Cohn and Danny O’Brien as they discuss how large, established tech companies like Apple, Google, and Facebook can block interoperability in order to squelch competition and control their users, and how we can fix this by taking away big companies’ legal right to block new tools that connect to their platforms – tools that would let users control their digital lives.

In this episode you’ll learn about:

  • How the power to leave a platform is one of the most fundamental checks users have on abusive practices by tech companies—and how tech companies have made it harder for their users to leave their services while still participating in our increasingly digital society;
  • How the lack of interoperability in modern tech platforms is often a set of technical choices that are backed by a legal infrastructure for enforcement, including the Digital Millennium Copyright Act (DMCA) and the Computer Fraud and Abuse Act (CFAA). This means that attempting to overcome interoperability barriers can come with legal risks as well as financial risks, making it especially unlikely for new entrants to attempt interoperating with existing technology;
  • How online platforms block interoperability in order to silence their critics, which can have real free speech implications;
  • The “kill zone” that exists around existing tech products, where investors will not back tech startups challenging existing tech monopolies, and even startups that can get a foothold may find themselves bought out by companies like Facebook and Google;
  • How we can fix it: The role of “competitive compatibility,” also known as “adversarial interoperability”  in reviving stagnant tech marketplaces;
  • How we can fix it by amending or interpreting the DMCA, CFAA and contract law to support interoperability rather than threaten it.
  • How we can fix it by supporting the role of free and open source communities as champions of interoperability and offering alternatives to existing technical giants.

Cory Doctorow ( is a science fiction author, activist and journalist. He is the author of many books, most recently ATTACK SURFACE, RADICALIZED and WALKAWAY, science fiction for adults, IN REAL LIFE, a graphic novel; INFORMATION DOESN’T WANT TO BE FREE, a book about earning a living in the Internet age, and HOMELAND, a YA sequel to LITTLE BROTHER. His latest book is POESY THE MONSTER SLAYER, a picture book for young readers.

Cory maintains a daily blog at He works for the Electronic Frontier Foundation, is a MIT Media Lab Research Affiliate, is a Visiting Professor of Computer Science at Open University, a Visiting Professor of Practice at the University of North Carolina’s School of Library and Information Science and co-founded the UK Open Rights Group. Born in Toronto, Canada, he now lives in Los Angeles. You can find Cory on Twitter at @doctorow.

Please subscribe to How to Fix the Internet via RSSStitcherTuneInApple PodcastsGoogle PodcastsSpotify or your podcast player of choice. You can also find the Mp3 of this episode on the Internet Archive.  If you have any feedback on this episode, please email

Below, you’ll find legal resources – including links to important cases, books, and briefs discussed in the podcast – as well a full transcript of the audio.


Anti-Competitive Laws

Anti-Competitive Practices 

Lawsuits Against Anti-Competitive Practices

Competitive Compatibility/Adversarial Interoperability & The Path Forward

State Abuses of Lack of Interoperability


Transcript of Episode 004: Control Over Users, Competitors, and Critics

Danny O’Brien:
Welcome to How to Fix the Internet with the Electronic Frontier Foundation, the podcast that explores some of the biggest problems we face online right now, problems whose source and solution is often buried in the obscure twists of technological development, societal change, and the subtle details of internet law.

Cindy Cohn:
Hello, everyone. I’m Cindy Cohn, I’m the executive director of the Electronic Frontier Foundation. And for our purposes today, I’m also a lawyer.

Danny O’Brien:
And I’m Danny O’Brien, and I work at the EFF too, and I could only dream of going to law school. So, this episode has its roots in a long and ongoing discussion that we have at EFF about competition in tech, or rather, the complete lack of it these days. I think there’s a growing consensus that big tech–Facebook, Google, Amazon, you can make your own list at home–have come to dominate the net and tech more widely and really not in a good way. They stand these days as potentially impregnable monopolies and there doesn’t seem much consensus on how to best fix that.

Cindy Cohn:
Yeah. This problem affects innovation, which is a core EFF value, but it also impacts free speech and privacy. The lack of competition has policymakers pushing companies to censor us more and more, which, as we know, despite a few high-profile exceptions, disproportionately impacts marginalized voices, especially around the world.

Cindy Cohn:
And critically, way too many of these companies have privacy-invasive business models. At this point, I like to say that Facebook doesn’t have users, it has hostages. So, addressing competition empowers users, and today we’re going to focus on one of the ways that we can reintroduce competition into our world. And that’s interoperability. Now this is largely a technical approach, but as you’ll hear, it can work in tandem with legal strategies, and it needs some legal support right now to bring it back to life.

Danny O’Brien:
Interoperability is going to be useful because it accelerates innovation, and right now, the cycle of innovation just seems to be completely stuck. I mean, this may make me sound old, but I do remember when the pre-Facebook and the pre-Google quasi-monopolies just popped up, but grew, lived gloriously, and then died and shriveled like dragonflies.

Danny O’Brien:
We had Friendster, then Myspace, we had Yahoo and Alta Vista, and then they moved away. Nothing seems to be shifting this new generation of oligopolies, in the marketplace at least. I know lawsuits and antitrust investigations take a long time. We think at EFF that there’s a way of speeding things up so we can break these down as quickly as their predecessors.

Cindy Cohn:
Yep. And that’s what’s so good about talking this through with our friend, Cory Doctorow. He comes at this from a deeply technological, economic, and historical perspective, and especially a historical perspective on how we got here in terms of our technology and law.

Cindy Cohn:
Now, I tend to think of it as a legal perspective, because I’m a litigator–I think, what doctrines are getting in the way? How can we address them? And how can we get the legal doctrines out of the way? But Danny, if I may, I had some personal experience here too. I bought an HP printer a while back, and because I wouldn’t sign up for their ink delivery service, the darn thing just bricked. It wouldn’t let me use anybody else’s ink, and ultimately, it just stopped working entirely.

Danny O’Brien:
Interoperability is the ability for other parties to connect and build upon existing hardware and software without asking for permission, or begging for authorization, or being thrown out if they don’t follow all the rules. So, in your printer’s case, Cindy–and I love how when your printer doesn’t work, you recognize it as an indictment of our zaibatsu control prison, rather than me who just thinks I failed to install the right driver. But in your case, your printer in Hewlett-Packard was building an ecosystem that only allowed other Hewlett-Packard projects to connect with it.

Danny O’Brien:
There’s no reason why third-party ink couldn’t work in HP, except that the printer has code in it that specifically rejects cartridges, not based on whether they work or not, but whether they come from the parent company or not. And there’s a legal infrastructure around that too. It’s much harder for third-party companies to interoperate with Hewlett-Packard printers, simply because there’s so much legal risk about doing so.

Danny O’Brien:
This is the sort of thing that Cory excels at explaining, and I’m so glad we managed to grab him between, oh my god, all the million things he does. For those of you who don’t know him, Cory works as a special advisor to EFF, but he’s also a best-selling science fiction author. He has his own daily newsletter, at, and a podcast of his own at

Danny O’Brien:
We caught him between publicizing his new kid’s book Poesy the Monster Slayer, and promoting his new sequel to his classic “Little Brother” called “Attack Surface”. And also curing world hunger, I’m pretty sure.

Cindy Cohn:
Hey, Cory.

Cory Doctorow:
It’s always a pleasure to talk to you, and it’s an honor to be on the EFF podcast.

Cindy Cohn:
So, let’s get to it. What is interoperability? And why do we need to fix it?

Cory Doctorow:
Well, I like to start with an interoperability view that’s pretty broad, right? Let’s start with the fact that the company that sells you your shoes doesn’t get to tell you whose socks you can wear, or that the company that makes your breakfast cereal doesn’t get to tell you which dairy you have to go to. And that stuff is … We just take it for granted, but it’s a really important bedrock principle, and we see what happens when people lose interoperability: they also lose all agency and self-determination.

Cory Doctorow:
If you’ve ever heard those old stories about company mining towns where you were paid in company scrip that you could only spend at the company store, that was like non-interoperable money, right? The only way you could convert your company scrip into dollars would be to buy corn at the company store and take it down to the local moonshiner and hope he’d give you greenbacks, right?

Cory Doctorow:
And so, to the extent that you can be stuck in someone else’s walled garden, it can turn, instead of, from a walled garden into a feedlot, where you become the fodder. And the tech industry has always had a weird relationship with interoperability,. On the one hand, computers have this amazing interoperable characteristic just kind of built into them. The underlying idea of things like von Neumann architectures, and Turing completeness really says that all computers can run all programs, and that you can’t really make a computer that just, like, only uses one app store.

Cory Doctorow:
Instead, what you have to do is make a computer that refuses to use other app stores. You know, that tablet or that console you have, it’s perfectly capable of using any app store that you tell it to. It just won’t let you, and there’s a really important difference, right? Like, I can’t use a kitchen mixer to apply mascara, because the kitchen mixer is totally unsuited to applying mascara and if I tried, I would maim myself. But you can install any app on any device, provided that the manufacturer doesn’t take steps to stop you.

Cory Doctorow:
And while manufacturers–tech manufacturers especially–have for a long time tried to take measures to stop use so they could increase their profits, what really changed the world was the passage of a series of laws, laws that we’re very familiar with at the EFF: the Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, and so on, that started to allow companies to actually make it illegal–both civilly and criminally–for you to take steps to add interoperability to the products that you use, and especially for rivals to take steps.

Cory Doctorow:
I often say that the goal of companies who want to block interoperability is to control their critics, their customers, and their competitors, so that you have to arrange your affairs to benefit their shareholders. And if you don’t, you end up committing an offense that our friend Saurok from the Cydia Project calls a felony contemptive business model.

Cindy Cohn:
This is something we care about in general at the EFF, because we worry a lot about the pattern of innovation, but I think it also has spillover effects on censorship and on surveillance. And I know you’ve thought about that a little bit, Cory, and I’d love to kind of just bring those out, because I think that it’s important … I mean, we all care, I think, about having functioning tools that really work. But there are effects on our rights as well, and that kind of old-school definition of rights, like what’s in the constitution.

Cory Doctorow:
Yeah. Well, a lot of people are trusting of the firms that handle their communications. And that’s okay, right? You might really think that Tim Cook is always going to exercise his judgment wisely, or that Mark Zuckerberg is a truly benevolent dictator and so on. But one of the things that keeps firms honest when they regulate your communications is the possibility that you might take your business elsewhere. And when firms don’t face that possibility, they have less of an incentive to put your needs ahead of the needs of their shareholders. Or sometimes there’s a kind of bank shot shareholder interest where, say, a state comes in and says, “We demand that you do something that is harmful to your users.” And you weigh in the balance how many users you’ll lose if you do it, versus how much it’s going to cost you to resist the state.

Cory Doctorow:
And the more users you lose in those circumstances, the more you’re apt to decide that the profitable thing to do is to resist state incursions. And there’s another really important dimension, which is a kind of invitation to mischief that arises when you lock your users up, which is that states observe the fact that you can control the conduct of your users. And they show up and they say, “Great, we have some things your users aren’t allowed to do.” And you are now deputized to ensure that they don’t do it, because you gave yourself that capability.

Cory Doctorow:
So, the best example of this … I don’t mean to pick on Apple, but the best example of this is Apple in China, where Apple is very dependent on the Chinese market, not just to manufacture its devices, but to buy and use its devices. Certainly, with President Trump’s TikTok order, a lot of people have noted that some of the real fallout is going to be for Apple if they can’t do business with Chinese firms and have Chinese apps and so on. And the Chinese government showed up at Apple’s door and said, “You have to block working VPNs from your app store. We need to be able to spy on everyone who uses an iPhone. And so, the easiest way for us to accomplish that is to just tell you to evict any VPN that doesn’t have a backdoor for us.”

Danny O’Brien:
Just to connect those two things together, Cory, so what you’re saying here is that because Apple phones don’t have … Apple has sort of exclusive control over them, and you can’t just install your own choice of program on the iPhone. That means that Apple is this sort of choke point that bad actors can use, because they’ve got all this control for themselves, and then they can be pressured to impose that control on their customers.

Cory Doctorow:
They installed it so they could extract a 30% vig from Epic and other independent software vendors. But the day at which a government would knock on their door and demand that they use the facility that they developed to lock-in users to a store, to also lock-in users to authoritarian software, that day was completely predictable. You don’t have to be a science fiction writer to say, “Oh, well, if you have a capability and it will be useful to a totalitarian state, and you put yourself in reach of that totalitarian states authority, they will deputize you to be part of their authoritarian project.”

Cindy Cohn:
Yeah. And that’s local as well as international. I mean, the pressure for the big platforms to be censors, to decide to be the omnipotent and always-correct deciders of what people get to say, is very strong right now. And that’s a double-edged sword. Sometimes that can work well when there are bad actors on that, but really, we know how power works. And once you empower somebody to be the censor, they’re going to be beholden to everybody who comes along who’s got power over them to censor the people they don’t like.

Cindy Cohn:
And it also then, I think, feeds this surveillance business model, this business model where tracking everything you do, and pay and trying to monetize that gets fed by the fact that you can’t leave.

Danny O’Brien:
I want to try and channel the ghost of Steve Jobs here and present the other argument that lots of companies give for locking down their systems, which is that it prevents other smaller bad actors, it prevents malware, it means that Apple can control… But by controlling all of these avenues, it can build a securer, more consumer-friendly tool.

Cory Doctorow:
Yeah. I hear that argument, and I think there’s some merit to it. Certainly, like, I don’t have either the technical chops or the patience and attention to do a full security audit of every app I install. So, I like the idea of deputizing someone to figure out whether or not I should install an app, I just want to choose that person. I had a call recently with one of our colleagues from EFF, Mitch, who said that argument is a bit like the argument about the Berlin Wall, where the former East German government claimed that the Berlin Wall wasn’t there to keep people in who wanted out, it was to stop people from breaking into the worker’s paradise.

Cory Doctorow:
And if Apple was demonstrably only blocking things that harmed users, one would expect that those users would just never tick the box that says, “Let me try something else.” And indeed, if that box was there, it would be much less likely that the Chinese state would show up and say, “Give us a means to spy on all your users,” because Apple could say, “I will give you that means, but you have to understand that as soon as that’s well understood, everyone who wants to evade your surveillance just ticks the box that says, ‘Let me get a VPN somewhere else.'”

Cory Doctorow:
And so, it actually gives Apple some power to resist it. In that way, it’s a bit like the warrant canaries that we’re very fond of, where you have these national security letters that firms cannot disclose when they get them. And so, firms as they launch a new product say, “The number of national security letters we have received in respect to this product is zero,” and they reissue that on a regular basis. And then they remove that line if they get a national security letter.

Cory Doctorow:
Jessamyn West, the librarian after the Patriot Act was passed, put a sign up in her library that said, “The FBI has not been here this week, watch for this sign to disappear,” because she wasn’t allowed to disclose that the FBI had been there, but she could take down the sign, and in the same way… And so, the idea here is that states are disincentivized to get up to this kind of mischief, where it relies on them keeping the existence of the mischief a secret, if that secrecy vanishes the instant they embark upon the mischief.

Cory Doctorow:
In the same way, if you have a lock-in model that disappears the instant you cease to act as a good proxy for your users’ interests, then people who might want to force you to stop being a good proxy for your users’ interest, have a different calculus that they make.

Cindy Cohn:
I just want to, sorry, put my lawyer hat on here. Warrant canaries are a really cute hack that are not likely to be something the FBI is just going to shrug its shoulders and say, “Oh, gosh, I guess you got us there, folks.” So, I just, sorry…

Cory Doctorow:
Fair enough.

Cindy Cohn:
Sometimes I have to come in and actually make sure people aren’t taking legal advice from Cory.

Danny O’Brien:
When we were kicking around ideas for the name of this podcast, one of them was, “This is not legal advice.”

Cory Doctorow:
Well, okay, so instead, let’s say binary transparency, where you just… automatically built into the app is a thing that just checks to see whether you got the same update as everyone else. And so that way, you can tell if you’ve been pushed to a different update from everyone else, and that’s in the app when the app ships. And so, the only way to turn it off is to ship an update that turns it off, and if they only ship that to one user, it happens automatically. It’s this idea of Ulysses pact, where you take some step before you’re under coercion, or before you’re in a position of weakness, to protect you from a future moment. It’s equivalent of throwing away the Oreos than you go on a diet.

Cindy Cohn:
So, let’s talk just a little bit more specifically about what are the things that we think are getting in the way of interoperability? And then, let’s pivot to what we really want to do, which is fix it. So, what I’ve heard from you so far, Cory, is that we see law getting in the way, whether that’s the Digital Millennium Copyright Act, Section 12, or one of the CFAA, or contract law–these kind of tools that get used by companies to stop interoperability. What are some of the other things that get in the way of us having our dream future where everything plugs into everything else?

Cory Doctorow:
I’d say that there’s two different mechanisms that are used to block interop and that they interact with each other. There’s law and there’s tech, right? So, we have these technical countermeasures: the sealed vaults, chips, the TPMS inside of our computers, and our phones, and our other devices, which are dual-use technologies that have some positive uses, but they can be used to block interop.

Cory Doctorow:
As we move to more of a software-as-a-service model were some key element of the process happens in the cloud, it gives firms that control, that cloud, a gateway where they can surveil how users are using them and try and head off people who are adding interoperability–what we call competitive compatibility to a service, that’s when you add a new interoperable feature without permission from the original manufacturer, and so on.

Cory Doctorow:
And those amount to a kind of cold war between different technologists working for different firms. So, on the one hand, you have companies trying to stop you from writing little scrapers that go into their website, and scrape their users waiting inboxes, and put them in a rival service on behalf of those users. And on the other hand, you have the people who are writing the scrapers, and we haven’t seen a lot of evidence about who would win that fight, at least if it were a fair fight, because of the law–because between the Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, and a lot of other laws that kind of pop up as they are repurposed by firms with a lot of money to spend on legal entrepreneurship.

Danny O’Brien:
I want to drill down just a little bit with this because I loved your series that you wrote on competitive compatibility, which talked about the old age of the Internet, where we did have a far faster pace of innovation and the life and death of tech giants was far shorter, because they were kind of in this tooth and claw competitive mode, where … I mean, just to plug an example, right? You would have, sort of, Facebook building on the contact lists that telephones and Google had by adversarially interoperating with them, right?

Danny O’Brien:
You would go to Facebook, and it would say, “Hey, tell us your friends.” And it would be able to do that by connecting to their systems. Now, you can’t do that with Facebook now, and you can’t write an app that competes with Apple’s software business, because neither of them will let you. And they’re able to do that, I think what we’re both saying, because… Not so much because of technical restrictions, but because of the laws that prevent you from doing that. You will get sued rather than out-innovated.

Cory Doctorow:
Well, yes. So, I think that’s true. We don’t know, right? I’m being careful here, because I have people who I trust as technologists who say, “No, it’s really hard, they’ve got great engineers.” I’m skeptical of that claim because we’ve had about a decade or more of companies being very afraid to try their hand at adversarial interoperability. And one of the things that we know is that well-capitalized firms can do a lot that firms that lack capital can’t, and our investor friends tell us that what big tech has more than anything else is a kill zone–that even though Facebook, Apple, Google, and the other big firms have double-digit year-on-year growth with billions of dollars in clear profit every year, no one will invest in competitors of theirs.

Cory Doctorow:
So, I think that when technologists say, “Well, look, we beat our brains out on trying to write a bot that Facebook couldn’t detect, or make an ad blocker that … I don’t know, the Washington Post couldn’t stop or whatever, or write an app store and install it on iPhones and we couldn’t do it.” The part that they haven’t tested is, well, what if an investor said, “Oh, I’m happy to get 10% of Facebook’s total global profit, and I will capitalize you to reflect that expected return and let you spend that money on whatever it takes to do that”?

Cory Doctorow:
What if they didn’t have the law on their side? What if they just had engineers versus engineers? But I want to get to this last piece, which is where all this law and these new legal interpretations come from, which is this legal entrepreneurship piece. So as I say, Facebook and its rivals, they have double-digit growth, billions of dollars in revenue every year, in profit, clear profit every year.

Cory Doctorow:
And some of that money is diverted to legal entrepreneurship. Instead of being sent to the shareholders, or being spent on engineering, or product design, it’s spent on law. And that spend is only possible because there’s just so much money sloshing around in those firms, and that spend is particularly effective, because they’re all gunning for the same thing. They’re a small number of firms that dominate the sector, and they have all used competitive compatibility to ascend to the top, and they are all committed to kicking away the ladder. And the thing that makes Oracle/Google so exceptional, is because it’s an instance in which the two major firms actually have divergent interests.

Cory Doctorow:
Far more often, we see their industry associations and the executives from the firm’s asking for the same things. And so, one of the things that we know about competition is when you lose competition, the firms that remain, find it easier to emerge a collusion. They don’t have to actually all sit down and say, “This is what we all want.” It’s just easy for them to end up in the same place. Think about the kinds of offers you get for mobile phone plans, right? It’s not that the executives all sat down and cooked up what those plans would be, it’s just that they copy each other, and they all end up in the same place. Or publishing contracts, or record contracts.

Cory Doctorow:
Any super-concentrated industry is going to have a unified vision for what it wants in its lobbying efforts, and it’s going to have a lot of money to spend on it.

Cindy Cohn:
So, let’s shift because our focus here is fixing it. And my journey in this podcast is to have a vision of what a better future would look like, what does the world look like if we get this right? Because at the EFF and we spend a lot of time articulating all the ways in which things are broken, and that’s a fine and awesome thing to do, but we need to fix them.

Cindy Cohn:
So, Cory, what would the world look like if we fixed interoperability? Give us the vision of this world.

Cory Doctorow:
I had my big kind of “road to Damascus” moment about this, when I gave a talk for the 15th anniversary of the computer science program at the University of Waterloo. They call themselves the MIT of Canada. I’m a proud University of Waterloo dropout. And I went back to give this speech and all of these super bright computer scientists were in the audience, grad students, undergrads, professors, and after I talked about compatibility, and so on, someone said, “How do we convince everyone to stop using Facebook and start using something else?”

Cory Doctorow:
And I had this, just this moment where I was like, “Why would you think that that was how you will get rid of Facebook?” Like, “When was it ever the case that if you decided you wanted to get a new pair of shoes, you throw away all your socks?” Why wouldn’t we just give people the tool to use Facebook at the same time as something else, until enough of their friends have moved to the something else, that they’re ready to quit Facebook?

Cory Doctorow:
And that, to me is the core of the vision, right? That rather than having this model that’s a bit like the model that my grandmother lived through–my grandmother was a Soviet refugee. So, she left the Soviet Union, cut off all contact, didn’t speak to her mother for 15 years, and was completely separated from her, it was a big momentous decision to leave the Soviet Union. We leave that, right? Where we tell people, “You either use Twitter or use Mastodon, but you don’t read Twitter through Mastodon and have a different experience, and have different moderation rules,” and so on. You’re just either on Mastodon or you’re on Twitter, they’re on either sides of the iron curtain.

Cory Doctorow:
And instead, we have an experienced a lot more like the one I had when I moved to Los Angeles from London five years ago, where we not only got to take along the appliances that we liked and just fit them with adapters, we also get to hang out with our family back home by video call and visit them when we want to, and so on–that you let people take the parts of the offer that they like and stick with them, and leave behind the parts they don’t like and go to a competitor. And that competitor might be another firm, it might be a co-op, it might be a thing just started by a tinkerer in their garage, it might be a thing started by a bright kid in a Harvard dorm room the way that Zuck did with Facebook.

Cory Doctorow:
And when those companies do stuff that makes you angry or sad, you take the parts of their service that you like, and you go somewhere else where people will treat you better. And you remain in contact with the people, and the hardware, and the services that you still enjoy, and you block the parts that you don’t. So, you have technological self-determination, you have agency, and companies have to fight to keep your business because you are not a hostage, you’re a customer.

Cindy Cohn:
Yeah. I think that that’s exactly it, and well put. I think that we’ve gotten used to this idea of, what we called back in the days about the Apple app store–I don’t know why Apple keeps coming up, because they’re only one of the actors we’re concerned about–but we used to call it the crystal prison, right? You buy an Apple device, and then it’s really hard to get out of the Apple universe. It used to be that it was hard to use Microsoft Word unless you used a Windows machine. But we managed to pressure, and some of that was antitrust litigation, but we managed to make pressure so that that didn’t work.

Cindy Cohn:
We want browsers that can take you to anywhere on the web, not just the ones that have made deals with the browsers. We want ISPs that offer you the entire web, just not the ones that pay for it. It really is an extension of network neutrality, this idea that we as users get to go where we want and get to dictate the terms of how we go there, at least to the extent of being able to interoperate.

Cory Doctorow:
I mean apropos of Apple, I don’t want to pick on them either, because Apple are fantastic champions of interoperability when it suits them, right? As you say that, the document wars were won in part by the iWork suite, where Apple took some really talented engineers, reversed engineer the gnarly, weird hairball that is Microsoft Office formats, and made backwards compatible new office suites that were super innovative but could also save out to Word and Excel, even though you’re writing into Numbers or Pages, and that part’s great. And just like Amazon broke the DRM on music monopoly that Apple had when it launched the MP3 store, but now will not release its audiobooks from DRM through its Audible program.

Cory Doctorow:
Apple was really in favor of interoperability without permission when it came to document formats–it benefited–but doesn’t like it when it comes to, say, rival app stores. Google is 100% all over interoperability when it comes to APIs, but not so much when it comes to the other areas where they enjoy lock-in. And I think that the lesson here is that we as users want interoperability irrespective of the effect that it has on a company’s shareholders.

Cory Doctorow:
The companies have a much more instrumental view of interoperability: that they want interoperability when it benefits them, and they don’t want it when it harms them. And I’m always reminded, Cindy, of the thing you used to say, when we were in the early days of the copyright wars around Napster. And we would talk to these lobbyists from the entertainment industry, and they would say, “Well, we are free speech organizations, that’s where we cut our teeth.” And you would say, “We know you love the First Amendment, we just wish you’d share.”

Cindy Cohn:
Yeah, absolutely. Absolutely, and one of the things that we’ve done recently is, we started off talking about this as interoperability, then we called it adversarial interoperability to make it clear that you don’t need to go on bended knee for permission. And recently, we started rebranding it to competitive compatibility. And Cory, you’ve used both of those terms in this conversation, and I just want to make sure our listeners get what we’re doing. We’re trying to really think about this. I mean, all of them are correct, but I think competitive compatibility, the reason we ended up there is not only is it fewer syllables, and we can call it ComCom, which we all like, but it’s the idea that it’s compatibility, it’s competitive compatibility, it’s being compatible with a competitive market-based environment, a place where users get to decide because people are competing for their interest and for their time.

Cindy Cohn:
And I really love the vision that if you’re the old … This was the product that Power Ventures tried to put out, was a service where it didn’t matter whether you had a friend on LinkedIn, or you had a friend on Orkut–it’s an old tool–or Facebook. You just knew you had a friend, and you just typed in, “Send the message to Cory,” and the software just figured out where you were connected with them and sent the message through it.

Cindy Cohn:
I mean, that’s just the kind of thing that should be easy, that isn’t easy anymore. Because everybody is stuck in this platform mentality, where you’re in one crystal prison or you’re in the other, and you might be able to switch from one to the other, but you can’t take anything with you in the way that you go.

Cindy Cohn:
The other tool that Power had that I thought was awesome was being able to look at all your social feeds in one screen. So, rather than switching in between them all the time, and trying to remember–which I spend a lot of time on right now, trying to remember whether I learned something on Twitter, or I learned it here on Facebook, or I learned it somewhere else–you have one interface, you have your own cockpit for your social media feeds, and you get to decide how it looks, instead of having to log into each of them separately and switch between them.

Cindy Cohn:
And those are just two ideas of how this world could serve you better. I think there are probably a dozen more. And I’d like for us to … If there’s other ones that you could think of like, how would my life be different if we fix this in ways that we can think about right now? And then of course, I think as with all tech and all innovation, the really cool things are going to be the things that we don’t think about that show up anyway, because that’s how it works.

Cory Doctorow:
Yeah, sure. I mean, a really good example right now is you’d be able to install Fortnite on your iPhone or your Android device, which is the thing you can’t do as of the day that we record this. And again, that’s what the app store lock-in is for, it’s to take a bite out of Fortnite and other independent software vendors. But if you decided that you wanted to keep using the security system that your cable provider Comcast gave to you but then decided it wouldn’t support anymore, which is the thing Comcast did last year, you could plug its cameras into a different control system.

Cory Doctorow:
If you decided that you liked the camera that Canary sent you and that you paid for, but you didn’t like the fact that it’s an unencrypted video–or rather, video that was an end-to-end encrypted to your phone and instead decrypted it in its data center so it could look at the video (and it does so for non-nefarious reasons, it wants to make sure it doesn’t send you a motion control alert just because your cat walked by the motion sensor)–but you may decide that having a camera in your house that’s always on, and that’s sending video that third parties can look at, is not a thing you like, but you like the hardware, so you just plug that into something else too.

Danny O’Brien:
I love the Catalog of Missing Devices. This is the thing that Cory co-wrote, which was just a list of devices that we cannot see right now, because of some of the laws that prevent people confidently being able to innovate in this space. And I sort of concede, because we plod about this all the time, like, EFF’s role in this, right? We’re continuing to sort of lobby and also in the courts as well work out ways that we can challenge and redefine the legal environment here. But what’s the message here if you’re someone who’s an open-source developer, or an entrepreneur, or a user? What’s going to move the needle? What’s going to take us into this future? And what can individuals do?

Cory Doctorow:
So, this is an iterative process, there isn’t a path from A to Z. There is a heuristic for how we climb the hill towards a better future. And the way to understand this, as I tried to get at with this sort of technology and law and monopoly, is that our current situation is the result of companies having these monopoly rents, laws being bad because they got to spend them on it, companies being able to collude because their sectors are concentrated, and technology that works against users being in the marketplace.

Cory Doctorow:
And each one of those affects the other. So for example, if we had, say merger scrutiny, right? Say we said that firms were no longer allowed to buy nascent competitors, either to crush them or to acquire something that they couldn’t do internally, the way you say Google has with most of its successful products. Really it’s got search, and to a lesser extent Android, that was mostly an acquisition, and … What’s the other one? Search … Oh, and Gmail are the really successful in-house products. Maybe Google Photos, although that’s probably just successful because every Android device ships with it. But if we just say Google can’t buy Fitbit, Google, a company that has tried repeatedly and failed to make a wearable, isn’t allowed to buy Fitbit. In order to acquire that, then Google starts to lose some of its stranglehold on data, especially if you stop its rivals from buying Fitbit too. And that makes it weaker, so that it’s harder for it to spend on legal entrepreneurship.

Cory Doctorow:
If we make devices that compete with Google, or tools that compete with Google–ad blockers, tracker blockers, and so on–then that also weakens them. And if they are weaker, they have fewer legal resources to deploy against these competitors as well. If we convince people that they can want more, right? If we can have a normative intervention, to say, “No one came down off a mount with two stone tablets,” saying, ‘Only the company that made your car can fix it,’ or ‘Only the company that made your phone can fix it,'” and we got them to understand that the right to repair has been stolen from them, then, when laws are contemplated that either improve our right to repair or take away our right to repair, there’s a constituency to fight those laws.

Cory Doctorow:
So the norms, and the markets, and the technology, and the law, all work together with each other. And I’m not one of nature’s drivers, I have very bad spatial sense, and when I moved to Los Angeles and became perforce a driver, I find myself spending a lot of time trying to parallel park. And the way that I parallel park is, I turn the wheel as far as I can, and then get a quarter of an inch of space, and then I turn it in the other direction, and I get a quarter of an inch of space. And I think as we try to climb this hill towards a more competitive market, we’re going to have to see which direction we can pull in from moment to moment, to get a little bit more policy space that we can leverage to get a little bit more policy space.

Cory Doctorow:
And the four directions we can go in are: norms, conversations about what’s right and wrong; laws, that tell you what’s legal and not legal; markets, things that are available for sale; and tech, things that are technologically possible. And our listeners, our constituents, the people in Washington, the people in Brussels, they have different skill sets that they can use here, but everyone can do one of these things, right? If you’re helping with the norm conversation, you are creating the market for the people who want to start the businesses, and you are creating the constituency for the lawmakers who want to make the laws.

Cory Doctorow:
So, everybody has a role to play in this fight, but there isn’t a map from A to Z. That kind of plotting is for novelists, not political struggles.

Cindy Cohn:
I think this is so important. One of the things that … And I want to close with this, because I think it’s true for almost all of the things that we’re talking about fixing, is that the answer to, “Should we do X or Y?” is “yes,” right? We are in some ways, the kind of scrappy, underfunded side of almost every fight we’re in around these kinds of things. And so, anybody who’s going to force you to choose between strategies is undermining the whole cause.

Cindy Cohn:
These are multi-strategic questions. Should we break up big tech? Or should we create interoperability? The answer is, yes, we need to aim towards doing a bit of all of these things. There might be times when they conflict, but most of the time, they don’t. And it’s a false choice if somebody is telling you that you have to pick one strategy, and that’s the only thing you can do.

Cindy Cohn:
Every big change that we have done has been a result of a whole bunch of different strategies, and you don’t know which one is going to give way, which is going to pave the way faster. You just keep pushing on all things. So, we’re finally moving on the Fourth Amendment on privacy, and we’re moving in the courts. But we could have passed a privacy law, but the legislation got stuck. We got to do all of these things. They feed each other, they don’t take away each other if we do it right.

Cory Doctorow:
Yeah, yeah. And I want to close by just saying, EFF’s 30 years old, which is amazing. I’ve been with the organization nearly 20 years, which is baffling, and the thing that I’ve learned on the way is that these are all questions of movements and not individuals. Like as an individual, the best thing you can do is join a movement, right? If you’re worried about climate change, it doesn’t really … How well you recycle is way less important than what you do with your neighbors to change the way that we think about our relationship to the climate.

Cory Doctorow:
And if you’re worried about our technological environment, then your individual tech choices do matter. But they don’t matter nearly so much as the choices that you make when you get together with other people to make this part of a bigger, wider struggle.

Cindy Cohn:
I think that’s so right. And even those who are out there in their garages, innovating right now, they need all the rest of the conversation to work. Nobody just put something out there in the world and it magically caught fire and changed the world. I mean, we like that narrative, but that’s not how it works. And so, even if you’re one of those people–and there are many of them who are EFF fans and we love them–who are out there thinking about the next big idea, this whole movement has to move forward, so that that big idea finds the fertile ground it needs, take seed and grows, and then gives all the rest of us the really cool stuff in our fixed future.

Cindy Cohn:
So, thank you so much, Cory, for taking time with us. You never fail to bring exciting ideas. And I think that you also are really willing to talk to a sophisticated audience and not talk down to people and bring in complicated ideas without having … And expect and get the audience to come up to the level of the conversation, so I certainly always learn from talking with you.

Cory Doctorow:
I was going to say, I learned it all from you guys, so thank you very much. And I miss you guys, I can’t wait to see you in person again.

Danny O’Brien:
Cory is this little ball of pure idea concentrate, and I was madly scribbling notes through all of that discussion. But one of the phrases that stuck with me was that, he said the companies are blocking interoperability to control critics, customers, and competitors.

Cindy Cohn:
Yeah. I thought that was really good too, and obviously, the most important part of all of this is control. I mean, that’s what the companies have. Of course, the part about critics is what especially triggers the First Amendment concerns, but control is the thing and I think that the ultimate power that we should have, the ultimate amount of control we should have is the ability to leave.

Cindy Cohn:
The ultimate power is the power to leave. That’s the core thing that is needed to get companies to concentrate on their users. The conflict here is really between companies’ desire to control users and users having the right to choose where they want to be.

Danny O’Brien:
One of the other things that I think comes out of this discussion is when you realize that companies, by blocking interoperability, can have exclusive power of censorship or control over their users. There’s always someone else more powerful who has influenced itself over the companies and is ultimately going to take and use that power, right? And that’s, generally speaking, governments.

Danny O’Brien:
We notice that when you have this capability to influence, or to censor, or to manipulate your users, governments and states ultimately would like access to that power also.

Cindy Cohn:
Yeah. We’re seeing this all over the place, there’s always a bigger fish. Right now, we see politicians in the United States, in very different directions, jockeying to force companies like Facebook to obey their preferences or agendas. And again, we have high-profile counter-examples, but where we live, EFF, in the trenches, we see that this power of censorship is most often used against those with the least voice in the political arena.

Cindy Cohn:
That kind of branches out to why we care about censorship and the First Amendment. I think that sometimes people forget this. We don’t care about the First Amendment and free speech because we think it’s okay for anybody to be able to say whatever they want, no matter how awful it is. The First Amendment isn’t in our Constitution because we think it’s really great to be an asshole. It’s because the power to censor is so strong, and so easily misused.

Cindy Cohn:
As we’ve seen, once somebody has that power, everybody wants to control them. The other thing I think Cory really has a good grasp on is how we got here. We talked a little bit about the kill zone, that venture capitalists won’t fund startups that attempt to compete. I think that’s really right, and it’s a piece that we’re going to have to fix.

Danny O’Brien:
Yeah. I think one of the subtleties about the current VC environment that powers so much of current tech investment, at least, is the nature of the exit strategy. These days, a venture capitalist won’t give … expects to get their return, not by a company IPOing, or successfully overturning one of these monopolies, but actually by being bought out by those monopolies. And that really constrains and influences what new innovators or entrepreneurs plan on doing in the next few years. And I think that’s one of the things that sticks in this current, less-than-useful cycle.

Danny O’Brien:
And usually, in these situations, I think that the community that I most expect to provide adversarial interoperability is, at least in theory, free of those financial incentives. And that’s the free and open-source software community. So much of the history of open-source has been using interoperability to build and escape from existing proprietary systems, from the early days of Unix, to LibreOffice being a competitor, to Microsoft’s word processing monopoly and so on.

Danny O’Brien:
And I think where these two things interact, is that these days a lot of open-source and free software gets its funding from the big companies themselves, because they don’t necessarily want to fund interoperability. So, that means that the stuff that doesn’t cater to interoperability gets a lot of rewards, and other communities who are fighting to shake off the shackles of proprietary software and dominant monopolies struggle without financial support.

Danny O’Brien:
And of course, there’s legal liability there too. We just watched the youtube-dl case with GitHub throwing that off their service, because it’s an attempt to interoperate with one of these big tech magnets.

Cindy Cohn:
Yeah. Free and open-source world is vital. They have those muscles, and it’s always been how they work. They’ve always had to make sure that they can play on whatever hardware you have, as well as with other software. So, I think that this is a key to getting us into a place where we can make interoperability the norm, not the exception.

Cindy Cohn:
I also, am really pleased about the Internet Archive’s work in really supporting the idea of a more distributed web. I think they really get the censorship possibilities, and are really supporting a lot of little companies, or little developers, or innovators who are trying to build a community to really get this done. And yes, the youtube-dl case, this is a situation in which you see the lack of protection for interoperability really meaning that the first thing that happened was this tool that so many people rely on went away as opposed to any other step. The first thing that happens is we lose the tool. That’s because the legal system isn’t set up to be really even or handle these kinds of situations, but rather just move to censorship first.

Cindy Cohn:
So in this, we’ve gone over what Cory talked about as the four levers of change. These four levers are things that were originated by Larry Lessig in the 90s. And those four levers are: law, like the DMCA, which is used in the YouTube case, the Computer Fraud and Abuse Act, and antitrust; norms; technology; and markets.

Cindy Cohn:
They all work together, and you can’t just pick one. And there’s a lot of efforts to try to say, “Well, you just have to pick one and let the others go.” But in my experience, you really can’t tell which one will create change, they all reinforce each other. And so, to really fix the Internet, we have to push on all four together.

Danny O’Brien:
But at least now we have four levers rather than no levers at all. On that note, I think we’ll wrap up for today. Join us next time.

Danny O’Brien:
Thanks again for joining us. If you’d like to support the Electronic Frontier Foundation, here are three things you can do today. One: you can hit subscribe in your podcast player of choice. And if you have time, please leave a review. It helps more people find us. Two: please share on social media and with your friends and family. Three: please visit, where you will find more episodes, learn about these issues, you can donate to become a member, and lots more.

Danny O’Brien:
Members are the only reason we can do this work, plus you can get cool stuff like an EEF hat, or a EFF hoodie, or even a camera cover for your laptop. Thanks once again for joining us, and if you have any feedback on this episode, please email We do read every email. This podcast was produced by the Electronic Frontier Foundation with the help from Stuga Studios. Music by Nat Keefe of BeatMower.

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Author: rainey Reitman

Victory! Court Protects Anonymity of Security Researchers Who Reported Apparent Communications Between Russian Bank and Trump Organization

Security researchers who reported observing Internet communications between the Russian financial firm Alfa Bank and the Trump Organization in 2016 can remain anonymous, an Indiana trial court ruled last week.

The ruling protects the First Amendment anonymous speech rights of the researchers, whose analysis prompted significant media attention and debate in 2016 about the meaning of digital records that reportedly showed computer servers linked to the Moscow-based bank and the Trump Organization in communication.

In response to these reports, Alfa Bank filed a lawsuit in Florida state court alleging that unidentified individuals illegally fabricated the connections between the servers. Importantly, Alfa Bank’s lawsuit asserts that the alleged bad actors who fabricated the servers’ communications are different people than the anonymous security researchers who discovered the servers’ communications and reported their observations to journalists and academics.

Yet that distinction did not stop Alfa Bank from seeking the security researchers’ identities through a subpoena issued to Indiana University Professor L. Jean Camp, who had contacts with at least one of the security researchers and helped make their findings public. 

Prof. Camp filed a motion to quash the subpoena. EFF filed a friend-of-the-court brief in support of the motion to ensure the court understood that the security researchers had the right to speak anonymously under both the First Amendment and Indiana’s state constitution.

The brief argues: 

By sharing their observations anonymously, the researchers were able to contribute to the electorate’s understanding of a matter of extraordinary public concern, while protecting their reputations, families, and livelihoods from potential retaliation. That is exactly the freedom that the First Amendment seeks to safeguard by protecting the right to anonymous speech.

It’s not unusual for companies embarrassed by security researchers’ findings to attempt to retaliate against them, which is what Alfa Bank tried to do. That’s why EFF’s brief also asked the court to recognize that Alfa Bank’s subpoena was a pretext:

[T]he true motive of the litigation and the instant subpoena is to retaliate against the anonymous computer security researchers for speaking out. In seeking to impose consequences on these speakers, Alfa Bank is violating their First Amendment rights to speak anonymously.

In rejecting Alfa Bank’s subpoena, the Indiana court ruled that the information Alfa Bank sought to identify the security researchers “is protected speech under Indiana law” and that the bank had failed to meet the high bar required to justify the disclosure of the individuals’ identities.

EFF is grateful that the court protected the identities of the anonymous researchers and rejected Alfa Bank’s subpoena. We would also like to thank our co-counsel Colleen M. Newbill, Joseph A. Tomain, and D. Michael Allen of Mallor Grodner LLP for their help on the brief.

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Author: Aaron Mackey

The FCC’s Independence and Mission Are at Stake with Trump Nominee

When there are only five people in charge of a major federal agency, the personal agenda of even one of them can have a profound impact. That’s why EFF is closely watching the nomination of Nathan Simington to the Federal Communications Commission (FCC).

Simington’s nomination appears to be the culmination of a several-month project to transform the FCC and expand its purview in ways that threaten our civil liberties online. The Senate should not confirm him without asking some crucial questions about whether and how he will help ensure that the FCC does the public interest job Congress gave it, which is to expand broadband access, manage the public’s wireless spectrum to their benefit, and protect consumers when they use telecommunications services.

There’s good reason to worry: Simington was reportedly one of the legal architects behind the president’s recent executive order seeking to have the FCC issue “clarifying” regulations for social media platforms. The executive order purports to give the FCC authority to create rules to which social media platforms must adhere in order to enjoy liability protections under Section 230, the most important law protecting our free speech online. Section 230 protects online platforms from liability for the speech of their users, while protecting their flexibility to develop their own speech moderation policies. The Trump executive order would upend that flexibility. 

As we’ve explained at length, this executive order was based on a legal fiction. The FCC’s role is not to enforce or interpret Section 230; its job is to regulate the United States’ telecommunications infrastructure: broadband, telephone, cable television, satellite, and all the various infrastructural means of delivering information to and from homes and businesses in the U.S. Throughout the Trump administration, the FCC has often shirked that duty—most dramatically, by abandoning any meaningful defense of net neutrality. Simington’s nomination seems to be an at-the-buzzer shot by an administration that’s been focused on undermining our protections for free speech online, instead of upholding the FCC’s traditional role of ensuring affordable access to the Internet and other communications technologies, and ensuring that those technologies don’t unfairly discriminate against specific users or uses.

The FCC Is Not the Speech Police—And Shouldn’t Be

Let’s take a look at the events leading up to Simington’s nomination. Twitter first applied a fact-check label to a tweet of President Trump’s in May, in response to his claims that mail-in ballots were part of a campaign of systemic voter fraud. As a private company, Twitter has the First Amendment right to implement such fact-checks, or even to choose not to carry someone’s speech for any reason.

The White House responded with its executive order that, among other things, directed the FCC to draft regulations that would narrow the Section 230 liability shield. As a result, it perverted the FCC’s role: it’s supposed to be a telecom regulator, not the social media police.

The White House executive order reflects a long-running (and unproven) claim in conservative circles that social media platforms are biased against conservative users. Some lawmakers and commentators have even claimed that their biased moderation practices somehow strip social media platforms of their liability protections under Section 230. As early as 2018, Sen. Ted Cruz incorrectly told Facebook CEO Mark Zuckerberg that in order to be shielded by 230, a platform had to be a “neutral public forum.” In the years since then, members of Congress have introduced multiple bills purporting to condition platforms’ 230 immunity on “neutral” moderation policies. As we’ve explained to Congress, a law demanding that platforms moderate speech in a certain way would be unconstitutional. The misguided executive order has the same inherent flaw as the bills: the government cannot dictate online platforms’ speech policies.

It’s not the FCC’s job to police social media, and it’s also not the president’s job to tell it to. By design, the FCC is an independent agency and not subject to the president’s demands. But when Republican FCC commissioner Michael O’Rielly correctly pointed out that government efforts to control private actor speech were unconstitutional, he was quickly punished. O’Rielly wrote [pdf], “the First Amendment protects us from limits on speech imposed by the government – not private actors – and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way.” The White House responded by withdrawing O’Rielly’s nomination and nominating Simington, one of the drafters of the executive order.

During a transition of power, it’s customary for independent agencies like the FCC to pause on controversial actions. The current FCC has so far adhered to that tradition, only moving forward items that have unanimous support. Every item the FCC has voted on since the election had the support of the Chair, the other four commissioners, and industry and consumer groups. For example, the FCC has moved forward on freeing up of 5.9 Ghz spectrum for unlicensed uses, a move applauded by EFF and most experts. But we worry that in nominating Simington, the administration is attempting to pave the way for a future FCC to go far beyond its traditional mandate and move into policing social media platforms’ policies. We’re glad to see Fight for the Future, Demand Progress, and several other groups rightfully calling on the Senate to not move forward on Nate Simington’s nomination.

The FCC’s Real Job Is More Important Than Ever 

There’s no shortage of work to do within FCC’s traditional role and statutory mandate. The FCC must begin to address the pressure test that the COVID-19 pandemic has posed to the U.S. telecommunications infrastructure. Much of the U.S. population must now rely on home Internet subscriptions for work, education, and socializing. Millions of families either have no home Internet access at all or lack sufficient access to meet this new demand. The new FCC has a monumental task in front of itself. 

During his Senate confirmation hearing, Simington gave no real indication on how he plans to work on the real issues facing the agency: broadband access, remote school challenges, spectrum management, improving competition, and public safety rules, for example. The only things we learned from the hearing are that he plans to continue the Trump-era policy of refusing to regulate large ISPs and that he refuses to recuse himself from decisions on the misguided executive order that he helped write. Before the Simington confirmation hearing started, Trump again urged Republicans to quickly confirm his nominee on a partisan basis.

In response, Senator Richard Blumenthal called for a hold on Simington’s nomination, indicating real concern for the FCC’s independence from the White House. That means the Senate would need to bypass his filibuster if it truly wanted to confirm Trump’s nominee.

Sen. Blumenthal’s concerns are real and important. President Trump effectively fired his own commissioner (O’Rielly) for expressing basic First Amendment principles. Before it confirms Simington, the Senate ought to consider what the nomination means for the future of the FCC. As the pandemic continues to worsen, there are too many mission critical issues for the FCC to tackle for it to continue with Trump’s misguided war on Section 230.

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Author: Ernesto Falcon

ICANN Can Stand Against Censorship (And Avoid Another .ORG Debacle) by Keeping Content Regulation and Other Dangerous Policies Out of Its Registry Contracts

The Internet’s domain name system is not the place to police speech. ICANN, the organization that regulates that system, is legally bound not to act as the Internet’s speech police, but its legal commitments are riddled with exceptions, and aspiring censors have already used those exceptions in harmful ways. This was one factor that made the failed takeover of the .ORG registry such a dangerous situation. But now, ICANN has an opportunity to curb this abuse and recommit to its narrow mission of keeping the DNS running, by placing firm limits on so-called “voluntary public interest commitments” (PICs, recently renamed Registry Voluntary Commitments, or RVCs).

For many years, ICANN and the domain name registries it oversees have given mixed messages about their commitments to free speech and to staying within their mission. ICANN’s bylaws declare that “ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide.” ICANN’s mission, according to its bylaws, “is to ensure the stable and secure operation of the Internet’s unique identifier systems.” And ICANN, by its own commitment, “shall not act outside its Mission.”

But…there’s always a but. The bylaws go on to say that ICANN’s agreements with registries (the managing entities of each top-level domain like .com, .org, and .horse) and registrars (the companies you pay to register a domain name for your website) automatically fall within ICANN’s legal authority, and are immune from challenge, if they were in place in 2016, or if they “do not vary materially” from the 2016 versions.

Therein lies the mischief. Since 2013, registries have been allowed to make any commitments they like and write them into their contracts with ICANN. Once they’re written into the contract, they become enforceable by ICANN. These “voluntary public interest commitments”  have included many promises made to powerful business interests that work against the rights of domain name users. For example, one registry operator puts the interests of major brands over those of its actual customers by allowing trademark holders to stop anyone else from registering domains that contain common words they claim as brands.

Further, at least one registry has granted itself “sole discretion and at any time and without limitation, to deny, suspend, cancel, or transfer any registration or transaction, or place any domain name(s) on registry lock, hold, or similar status” for vague and undefined reasons, without notice to the registrant and without any opportunity to respond.  This rule applies across potentially millions of domain names. How can anyone feel secure that the domain name they use for their website or app won’t suddenly be shut down? With such arbitrary policies in place, why would anyone trust the domain name system with their valued speech, expression, education, research, and commerce?

Voluntary PICs even played a role in the failed takeover of the .ORG registry earlier this year by the private equity firm Ethos Capital, which is run by former ICANN insiders. When EFF and thousands of other organizations sounded the alarm over private investors’ bid for control over the speech of nonprofit organizations, Ethos Capital proposed to write PICs that, according to them, would prevent censorship. Of course, because the clauses Ethos proposed to add to its contract were written by the firm alone, without any meaningful community input, they had more holes than Swiss cheese. If the sale had succeeded, ICANN would have been bound to enforce Ethos’s weak and self-serving version of anti-censorship.

A Fresh Look by the ICANN Board?

The issue of PICs is now up for review by an ICANN working group known as “Subsequent Procedures.” Last month, the ICANN Board wrote an open letter to that group expressing concern about PICs that might entangle ICANN in issues that fall “outside of ICANN’s technical mission.” It bears repeating that the one thing explicitly called out in ICANN’s bylaws as being outside of ICANN’s mission is to “regulate” Internet services “or the content that such services carry or provide.” The Board asked the working group [pdf] for “guidance on how to utilize PICs and RVCs without the need for ICANN to assess and pass judgment on content.”

A Solution: No Contractual Terms About Content Regulation

EFF supports this request, and so do many other organizations and stakeholders who don’t want to see ICANN become another content moderation battleground. There’s a simple, three-part solution that the Subsequent Procedures working group can propose:

  • PICs/RVCs can only address issues with domain names themselves—not the contents of websites or apps that use domain names;
  • PICs/RVCs should not give registries unbounded discretion to suspend domain names;
  • and PICs/RVCs should not be used to create new domain name policies that didn’t come through ICANN processes.

In short, while registries can run their businesses as they see fit, ICANN’s contracts and enforcement systems should have no role in content regulation, or any other rules and policies beyond the ones the ICANN Community has made together.

A guardrail on the PIC/RVC process will keep ICANN true to its promise not to regulate Internet services and content.  It will help avoid another situation like the failed .ORG takeover, by sending a message that censorship-for-profit is against ICANN’s principles. It will also help registry operators to resist calls for censorship by governments (for example, calls to suppress truthful information about the importation of prescription medicines). This will preserve Internet users’ trust in the domain name system.

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Author: Mitch Stoltz

Once Again, Facebook Is Using Privacy As A Sword To Kill Independent Innovation

Facebook claims that their role as guardian of users’ privacy gives them the power to shut down apps that give users more control over their own social media experience. Facebook is wrong. The latest example is their legal bullying of Friendly Social Browser.

Friendly is a web browser with plugins geared towards Facebook, Instagram, and other social media sites. It’s been around since 2010 and has a passionate following. Friendly offers ad and tracker blocking and simplifies downloading of photos and videos. It lets users search their news feeds by keyword, or reorder their feeds chronologically, and it displays Facebook pages with alternative “skins.”

To Facebook’s servers, Friendly is just a browser like any other. Users run Friendly much as they would Google Chrome, Mozilla Firefox, or any other standard web browser. According to Friendly, its software doesn’t call any developer interfaces (APIs) into Facebook or Instagram. Friendly has also stated that they don’t collect any personal information about users, including posts or uploads. Friendly does collect some anonymous usage data, and sends the ads that people view to a third-party analytics firm.

Over the summer, Facebook’s outside counsel demanded that Friendly stop offering its browser. Facebook’s lawyer claimed that Friendly violated Facebook’s terms of service by “chang[ing] the way Facebook and Instagram look and function” and “impairing [their] intended operation.” She claimed, incorrectly, that violating Facebook’s terms of service was also a violation of the federal Computer Fraud and Abuse Act (CFAA) and its California counterpart.

Although Friendly explained to Facebook’s lawyers that their browser didn’t access any Facebook developer APIs, Facebook hasn’t budged from its demand that Friendly drop dead. 

Today, EFF sent Facebook a letter challenging Facebook’s legal claims. We explained that the CFAA and its California counterpart are concerned with “access” to a protected computer:

California law defines “access” as “to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with” a computer. Friendly is a web browser, so it is our understanding that Friendly does not itself “gain entry to” or “communicate with” Facebook in any way. Like other popular browsers such as Google Chrome or Mozilla Firefox, therefore, Friendly does not “access” Facebook; Facebook users do. But presumably Facebook knows better than to directly accuse its users of being malicious hackers if they change the colors of websites they view.

While EFF is not representing Friendly at this time, we weighed in because Facebook’s claims are dangerous. Facebook is claiming the power to decide which browsers its users can use to access its social media sites, an extremely broad claim. According to the reasoning of Facebook’s demand, accessibility software like screen readers, magnifiers, and tools that change fonts or colors to make pages more readable for visually impaired people all exist by Facebook’s good will, and could be shut down anytime if Facebook decides they “change the way Facebook and Instagram look and function.”

Friendly is far from the only victim of the company’s strong-arming. Just last month, Facebook threatened the NYU Ad Observatory, a research project that recruits Facebook users to install a plugin to collect the ads they’re shown. And in 2016, Facebook convinced a federal court of appeals that the CFAA barred a third-party social media aggregator from interacting with user accounts, even when those users chose to sign up for the aggregator’s service. In sum, Facebook’s playbook—using the CFAA to enforce spurious privacy claims—has made it harder for innovators, security experts, and researchers of all stripes to use Facebook in their work. 

Facebook has claimed that it must bring its legal guns to bear on any software that interoperates with Facebook or Instagram without permission, citing to the commitments that Facebook made to the Federal Trade Commission after the Cambridge Analytica scandal. But there are different kinds of privacy threats. Facebook’s understandable desire to protect users (and its own reputation) against privacy abuses by third parties like Cambridge Analytica doesn’t take away users’ right to guard themselves against Facebook’s own collection and mishandling of their personal data by employing ad- and tracker-blocking software like Friendly (or EFF’s Privacy Badger, for that matter). 

Nor do Facebook’s privacy responsibilities justify stopping users from changing the way they experience Facebook, and choosing tools to help them do that. Attempts to lock out third-party innovators are not a good look for a company facing antitrust investigations, including a pending lawsuit from the Federal Trade Commission.

The web isn’t television. Website owners might want to control every detail about how their sites look and function, but since the very beginning, users have always been in control of their own experience—it’s one of the defining features of the Web. Users can choose to re-arrange the content they receive from websites, save it, send it along to others, or ignore some of it by blocking advertisements and tracking devices. The law can’t stop users from choosing how to receive Facebook content, and Facebook shouldn’t be trying to lock out competition under a guise of protecting privacy.

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Author: Mitch Stoltz

Video Analytics User Manuals Are a Guide to Dystopia

A few years ago, when you saw a security camera, you may have thought that the video feed went to a VCR somewhere in a back office that could only be accessed when a crime occurs. Or maybe you imagined a sleepy guard who only paid half-attention, and only when they discovered a crime in progress. In the age of internet-connectivity, now it’s easy to imagine footage sitting on a server somewhere, with any image inaccessible except to someone willing to fast forward through hundreds of hours of footage.

That may be how it worked in 1990s heist movies, and it may be how a homeowner still sorts through their own home security camera footage. But that’s not how cameras operate in today’s security environment. Instead, advanced algorithms are watching every frame on every camera and documenting every person, animal, vehicle, and backpack as they move through physical space, and thus camera to camera, over an extended period of time. 

The term “video analytics” seems boring, but don’t confuse it with how many views you got on your YouTube “how to poach an egg” tutorial. In a law enforcement or private security context, video analytics refers to using machine learning, artificial intelligence, and computer vision to automate ubiquitous surveillance. 

Through the Atlas of Surveillance project, EFF has found more than 35 law enforcement agencies that use advanced video analytics technology. That number is steadily growing as we discover new vendors, contracts, and capabilities. To better understand how this software works, who uses it, and what it’s capable of, EFF has acquired a number of user manuals. And yes, they are even scarier than we thought. 

Briefcam, which is often packaged with Genetec video technology, is frequently used at real-time crime centers. These are police surveillance facilities that aggregate camera footage and other surveillance information from across a jurisdiction. Dozens of police departments use Briefcam to search through hours of footage from multiple cameras in order to, for instance, narrow in on a particular face or a specific colored backpack. This power of video analytic software would  be particularly scary if used to identify people out practicing their First Amendment right to protest. 

Avigilon systems are a bit more opaque, since they are often sold to business, which aren’t subject to the same transparency laws. In San Francisco, for instance, Avigilon provides the cameras and software for at least six business improvement districts (BIDs) and Community Benefit Districts (CBDs). These districts blanket neighborhoods in surveillance cameras and relay the footage back to a central control room. Avigilon’s video analytics can undertake object identification (such as whether things are cars and people), license plate reading, and potentially face recognition. 

You can read the Avigilon user manual here, and the Briefcam manual here

But what exactly is these software systems’ capabilities? Here’s what we learned: 

Pick a Face, Track a Face, Rate a Face

Instructions on how to select a face

If you’re watching video footage on Briefcam, you can select any face, then add it to a “watchlist.” Then, with a few more clicks, you can retrieve every piece of video you have with that person’s face in it. 

Briefcam assigns all face images 1-3 stars. One star: the AI can’t even recognize it as a person. Two stars: medium confidence. Three stars: high confidence.  

Detection of Unusual Events

A chart showing the different between the algorithms.

Avigilon has a pair of algorithms that it uses to predict what it calls “unusual events.” 

The first can detect “unusual motions,” essentially patterns of pixels that don’t match what you’d normally expect in the scene. It takes two weeks to train this self-learning algorithm.  The second can detect “unusual activity” involving cars and people. It only takes a week to train. 

Also, there’s “Tampering Detection” which, depending on how you set it, can be triggered by a moving shadow:

Enter a value between 1-10 to select how sensitive a camera is to tampering Events. Tampering is a sudden change in the camera field of view, usually caused by someone unexpectedly moving the camera. Lower the setting if small changes in the scene, like moving shadows, cause tampering events. If the camera is installed indoors and the scene is unlikely to change, you can increase the setting to capture more unusual events.

Pink Hair and Short Sleeves 

Color tool

With Briefcam’s shade filter, a person searching a crowd could filter by the color and length of items of clothing, accessories, or even hair. Briefcam’s manual even states the program can search a crowd or a large collection of footage for someone with pink hair. 

In addition, users of BriefCam can search specifically by what a person is wearing and other “personal attributes.” Law enforcement attempting to sift through crowd footage or hours of video could search for someone by specifying blue jeans or a yellow short-sleeved shirt.

Man, Woman, Child, Animal

BriefCam sorts people and objects into specific categories to make them easier for the system to search for. BriefCam breaks people into the three categories of “man,” “woman,” and “child.” Scientific studies show that this type of categorization can misidentify gender nonconforming, nonbinary, trans, and disabled people whose bodies may not conform to the rigid criteria the software looks for when sorting people. Such misidentification can have real-world harms, like triggering misguided investigations or denying access.

The software also breaks down other categories, including distinguishing between different types of vehicles and recognizing animals.

Proximity Alert

An example of the proximity filter

In addition to monitoring the total number of objects in a frame or the relative size of objects, BriefCam can detect proximity between people and the duration of their contact. This might make BriefCam a prime candidate for “COVID-19 washing,” or rebranding invasive surveillance technology as a potential solution to the current public health crisis. 

Avigilon also claims it can detect skin temperature, raising another possible assertion of public health benefit. But, as we’ve argued before, remote thermal imaging can often be very inaccurate, and fail to detect virus carriers that are asymptomatic. 

Public health is a collective effort. Deploying invasive surveillance technologies that could easily be used to monitor protestors and track political figures is likely to breed more distrust of the government. This will make public health collaboration less likely, not more. 


One feature available both with Briefcam and Avigilon are watchlists, and we don’t mean a notebook full of names. Instead, the systems allow you to upload folders of faces and spreadsheets of license plates, and then the algorithm will find matches and track the targets’ movement. The underlying watchlists can be extremely problematic. For example, EFF has looked at hundreds of policy documents for automated license plate readers (ALPRs) and it is very rare for an agency to describe the rules for adding someone to a watchlist. 

Vehicles Worldwide 

Often, ALPRs are associated with England, the birthplace of the technology, and the United States, where it has metastasized. But Avigilon already has its sights set on new markets and has programmed its technology to identify license plates across six continents. 

It’s worth noting that Avigilon is owned by Motorola Solutions, the same company that operates the infamous ALPR provider Vigilant Solutions.


We’re heading into a dangerous time. The lack of oversight of police acquisition and use of surveillance technology has dangerous consequences for those misidentified or caught up in the self-fulfilling prophecies of AI policing

In fact,  Dr. Rashall Brackney, the Charlottesville Police Chief, described these video analytics as perpetuating racial bias at a recent panel. ” are often incorrect,” she said. “Over and over they create false positives in identifying suspects.”

This new era of video analytics capabilities causes at least two problems. First, police could rely more and more on this secretive technology to dictate who to investigate and arrest by, for instance, identifying the wrong hooded and backpacked suspect. Second, people who attend political or religious gatherings will justifiably fear being identified, tracked, and punished. 

Over a dozen cities across the United States have banned government use of face recognition, and that’s a great start. But this only goes so far. Surveillance companies are already planning ways to get around these bans by using other types of video analytic tools to identify people. Now is the time to push for more comprehensive legislation to defend our civil liberties and hold police accountable. 

To learn more about Real-Time Crime Centers, read our latest report here

Banner image source: Mesquite Police Department pricing proposal.

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Author: Dave Maass

Find Out How Ad Trackers Follow You On the Web With EFF’s “Cover Your Tracks” Tool

San Francisco—The Electronic Frontier Foundation (EFF) today launched Cover Your Tracks, a interactive tool that teaches users how advertisers follow them as they shop or browse online, and how to fight back against corporate trackers to protect their privacy, mitigate relentless ad targeting, and improve the web ecosystem for everyone.

With Black Friday and Cyber Monday just days away, when millions of users will be shopping online, Cover Your Tracks provides an in-depth learning experience—aimed at non-technical users—about how they are unwittingly being tracked online through their browsers.

Our browsers leave traces of identifiable information when we visit websites, like animals might leave tracks in the wild, and that can be combined into a unique identifier that follows us online, like wildlife that’s been tagged,” said EFF Senior Staff Technologist Bill Budington. “We want users to take back control of their Internet experience by giving them a tool that lets them in on the hidden tricks and technical ploys online advertisers use to follow them so they can cover their tracks.”

Cover Your Tracks allows users to test their browsers to see what information about their online activities is visible to, and scooped up by, trackers. It shines a light on tracking mechanisms that utilize cookies, code embedded on websites, and more. Users can also learn how to cover some of their tracks by changing browser settings and using anti-tracking add-ons like EFF’s Privacy Badger.

Cover Your Tracks builds on EFF’s ground-breaking tracker awareness tool Panopticlick, which exposed how advertisers create “fingerprints” of users by capturing little bits of information given off by their browsers and using that to identify and follow them around the web and build profiles for ad targeting.

Panopticlick showed users that browser fingerprinting existed. Cover Your Tracks takes the next step, helping empower users to uncover and combat trackers. The goal is to provide easy-to-understand information about exactly what kind of fingerprint tracking might be happening and how it’s performed.

“Cover Your Tracks shows how Amazon, Facebook, Google, Twitter, and hundreds of lesser known entities work together to exploit browser information in order to track users. They then use that information to bombard users with ads,”  said Budington. “We want users to learn a few tricks of their own to confuse trackers by utilizing browsers and extensions that give off the same information regardless of what computers they’re running on, or randomize certain bits of information so they can’t be used as a reliable tracker.”

Cover Your Tracks offers a learning page about the methodology EFF uses to mimic trackers and test browsers. EFF plans to add new infographics demonstrating how users can employ add-ons and new kinds of anti-fingerprinting browsers to fight tracking.

Visit Cover Your Tracks:

For more on corporate surveillance:

For more on Panopticlick:

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Author: Karen Gullo

Introducing Cover Your Tracks!

Today, we’re pleased to announce Cover Your Tracks, the newest edition and rebranding of our historic browser fingerprinting and tracker awareness tool Panopticlick. Cover Your Tracks picks up where Panopticlick left off. Panopticlick was about letting users know that browser fingerprinting was possible; Cover Your Tracks is about giving users the tools to fight back against the trackers, and improve the web ecosystem to provide privacy for everyone.

A demonstration of the new, green Cover Your Tracks website, which uses animal paw prints to illustrate the concept of tracking and fingerprinting your browser. The user clicks "Test your fingerprint" to get results.

A screen capture of the front page of The mouse clicks on “Test your browser” button, which loads a results page with a summary of protections the browser has in place against fingerprinting and tracking. The mouse scrolls down to toggle to “detailed view”, which shows more information about each metric, such as further information on System Fonts, Language, and AudioContext fingerprint, among many other metrics.

Over a decade ago, we launched Panopticlick as an experiment to see whether the different characteristics that a browser communicates to a website, when viewed in combination, could be used as a unique identifier that tracks a user as they browse the web. We asked users to participate in an experiment to test their browsers, and found that overwhelmingly the answer was yes—browsers were leaking information that allowed web trackers to follow their movements.

A screenshot of the older orange Panopticlick website, which shows a human fingerprint graphic.

The old Panopticlick website.

In this new iteration, Cover Your Tracks aims to make browser fingerprinting and tracking more understandable to the average user.  With helpful explainers accompanying each browser characteristic and how it contributes to their fingerprint, users get an in-depth look into just how trackers can use their browser against them.

Our browsers leave traces of identifiable information just like an animal might leave tracks in the wild. These traces can be combined into a unique identifier which follows users’ browsing of the web, like wildlife which has been tagged by an animal tracker. And, on the web and in the wild, one of the best ways to confuse trackers and make it hard for them to identify you individually. Some browsers are able to protect their users by making all instances of their browser look the same, regardless of the computer it’s running on. In this way, there is strength in numbers. Users can also “cover their tracks,” protecting themselves by installing extensions like our own Privacy Badger.

 "Every time you visit a website, your browser sends little bits of information about itself.

A screenshot from Cover Your Tracks’ learning page,

For beginners, we’ve created a new learning page detailing the methodology we use to mimic trackers and test browsers, as well as next steps users can take to learn more and protect themselves. Because tracking and fingerprinting are so complex, we wanted to provide users a way to deep-dive into exactly what kind of tracking might be happening, and how it is performed.

We have also worked with browser vendors such as Brave to provide more accurate results for browsers that are employing novel anti-fingerprinting techniques. Add-ons and browsers that randomize the results of fingerprinting metrics have the potential to confuse trackers and mitigate the effects of fingerprinting as a method of tracking. In the coming months, we will provide new infographics that show users how they can become safer by using browsers that fit in with large pools of other browsers.

We invite you to test your own browser and learn more – just head over to Cover Your Tracks!

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Author: Bill Budington