Mozilla’s 2016 legal filings
10 years ago, I hauled a large unsealed box of 40 freshly printed mini-booklets over the snow outside the U.S. Supreme Court. My taxi had dropped me off at the wrong location — the famous courthouse front steps — instead of the security guard’s booth behind the courthouse. Rookie mistake. The guard silently glanced at the clock (I was just in time) and dumped my briefs into a black garbage bag. It seemed so mundane, but that’s how briefs are hand-filed at the Supreme Court.
This left a lasting impression on me on the importance of ensuring that your voice is heard. Today I head the product legal team at Mozilla. We are a small group supporting 14 internal departments as well as more than 50 products, programs, features, services, and tools. And if that wasn’t enough, we also do what we can on behalf of the Web and the Internet.
In 2016, we filed Amicus (or “friend-of-the-court”) briefs in seven cases on a range of issues covering encryption, security vulnerabilities, web literacy, government requests for user information, hyperlinks, patent infringement, and the management of the Internet. We tie these together under three themes: trust, innovation, and access.
We intervened where court decisions critically impacted public security and transparency.
Three of our Amicus briefs were in cases that lay at the intersection between the U.S. Government’s interest in obtaining information for law enforcement and user security and privacy.
We joined a coalition of tech companies to advocate that Apple should not be compelled to engineer vulnerabilities that would place its users at risk. The government voluntarily dropped the case when it found an alternative means of hacking the iPhone at issue without Apple’s assistance. We’ve subsequently blogged about appropriate safeguards for government hacking and started a public series on Government Hacking (topics so far: Rule 41 and the vulnerabilities equities process).
We also intervened in a separate case to protect the security of our user base. It’s been rumored that a software exploit used by the government to identify people on the Tor network could affect Firefox. We intervened on behalf of millions of users not in the courtroom who could have been affected by the disclosure of the software vulnerability. We argued that the impacted company of a software vulnerability should be notified prior to court ordered disclosure to a defendant so that the vulnerability can be fixed, otherwise, user security could be compromised. We strongly believe that security is a shared responsibility and believe the government has a role to play.
We also filed a coalition brief with other tech companies that emphasized the need for transparency in a currently opaque legal environment where the government too frequently makes use of unlimited indefinite gag orders to prevent companies from notifying impacted customers of government requests for their information. This case is still ongoing.
We advocated for innovation and an open Internet.
In January, we jointly filed an amicus brief in the U.S. Supreme Court to limit the ability of courts to award triple damages for patent infringement. Unfortunately, the Court’s final decision lowered the standard for awarding increased damages to a patent holder in the case of willful patent infringement. This places more pressure on open source projects, independent developers, and smaller companies — who may refuse to investigate or engage in discussions about patents to avoid any remote possibility of potential litigation, which was already expensive, but now also comes with the threat of treble damages
In another case, we celebrated a win for the Internet. Unknown to many, the Internet Assigned Number Authority (“IANA”) controls key parts of the Internet — like top-level domains and IP addresses. In September, management of IANA transitioned from a U.S. agency to a global, multi-stakeholder community. We joined several other champions of a global, open Internet to oppose an extraordinary last-minute attempt in the Southern District of Texas to halt the planned transition through a temporary restraining order. The four states of Arizona, Texas, Oklahoma and Nevada mischaracterized IANA’s transition as tantamount to ceding control of the Internet to China, Russia, and the United Nations. Fortunately, the judge immediately denied the motion and the case was voluntarily dismissed.
U.S. government management of IANA was a vestige of an older framework when the U.S. made most decisions about the Internet. That’s no longer appropriate today. We’re glad IANA is in the hands of an open, transparent, model supported by virtually every major stakeholder involved in the Internet.
We urged Courts to protect the ability of all users to meaningfully participate online.
We urged the California Supreme Court to take a case involving the California Constitution, and whether it requires California to provide its public school students with a quality education. We believe that a quality education includes Web literacy skills, without which students risk being left behind in our digitized society. The Court declined to take the case, leaving this important issue unanswered.
We also intervened in the European Court of Human Rights asking it to reverse troubling precedent by the Hungarian courts, which applied defamation liability to website creators based on the mere act of hyperlinking to information. We explained to the Court that hyperlinks are the glue that holds the Web together: they are central to the Web’s ability to create efficient communication between information and core to its system design. Liability merely for the creation of a hyperlink harms the core of the free flow of information that underlies the Web and the potential for free expression that flow creates. This case is still pending.