On March 23, the FCC issued an update to their Covered List, a list of equipment banned from obtaining regulatory approval necessary for U.S. sale (and thus effectively a ban on sale of new devices), to include all new routers produced in foreign countries unless they are specifically given an exception by the Department of Defense (DoD) or DHS. The Commission cited “security gaps in foreign-made routers” leading to widespread cyberattacks as justification for the ban, mentioning the high-profile attacks by Chinese advanced persistent threat actors Volt, Flax, and Salt Typhoon. Although the stated intention is to stem the very real threat of domestic residential routers being commandeered to initiate attacks and act as residential proxies, this sweeping move serves as a blunt instrument that will impact many harmless products. In addition to being far too broad, it won’t even affect many vulnerable devices that are most active in these types of attacks: IoT and connected smart home devices.

Previously, the FCC had changed the Covered List to ban hardware by specific vendors, such as telecom equipment produced by companies Huawei and Hytera in 2021. This new blanket ban, in contrast, affects the importation and sale of almost all new consumer routers. It does not affect consumer routers produced in the United States, like Starlink in Texas. While some of the affected routers will be vulnerable to compromises that hijack the devices and use them for cybercrime and attacks, this ban does not distinguish between companies with a track-record of producing vulnerable products and those without. As a result, instead of incentivizing security-minded production, this will only limit the options consumers have to US-based manufacturers not affected by the ban—even those that lack stellar security reputations themselves.

While the sale of vulnerable routers in the U.S. will not stop, the announcement quoted an Executive Branch determination that foreign produced routers introduce “a supply chain vulnerability that could disrupt the U.S. economy, critical infrastructure, and national defense.” Yet this move does nothing to address the growing number of connected devices involved in the attacks this ban aims to address. As we have previously pointed out, supply chain attacks have resulted in no-name Android TV boxes preloaded with malware, sold by retail giants like Amazon, fuelling the massive Kimwolf and BADBOX 2 fraud and residential proxy botnets. Banning the specific models and manufacturers we know produce dangerous devices putting its purchasers at risk, rather than issuing blanket bans punishing reputable brands that do better, should be the priority.

With the FCCs top commissioner appointed by the President, this ban comes as other parts of the administration impose tariffs and issue dozens of trade-related executive orders aimed at foreign goods. A few larger companies with pockets deep enough to invest in manufacturing plants within the U.S. may see this as an opportune moment, while others not as well poised to begin U.S. operations may attempt to curry enough favor to be added to the DoD or DHS exception lists. At best, this will result in the immediate effect of an ill-targeted policy that does little to improve domestic cybersecurity posture. At worst, it entrenches existing players and deepens problematic quid-pro-quo arrangements.

American consumers deserve better. They deserve the assurance that the devices they use, whether routers or other connected smart home devices, are built to withstand attacks that put themselves and others at risk, no matter where they are manufactured. For this, a nuanced, careful consideration of products (such as was part of the FCC’s 2023-proposed U.S. Cyber Trust Mark) is necessary, rather than blanket bans.

Another court has ruled that copyright can’t be used to keep our laws behind a paywall. The U.S. Court of Appeals for the Third Circuit upheld a lower court’s ruling that it is fair use to copy and disseminate building codes that have been incorporated into federal and state law, even though those codes are developed by private parties who claim copyright in them. The court followed the suggestions EFF and others presented in an amicus brief, and joined a growing list of courts that have placed public access to the law over private copyright holders’ desire for control.

UpCodes created a database of building codes—like the National Electrical Code—that includes codes incorporated by reference into law. ASTM, a private organization that coordinated the development of some of those codes, insists that it retains copyright in them even after they have been adopted into law, and therefore has the right to control how the public accesses and shares them. Fortunately, neither the Constitution nor the Copyright Act support that theory. Faced with similar claims, some courts, including the Fifth Circuit Court of Appeals, have held that the codes lose copyright protection when they are incorporated into law. Others, like the D.C. Circuit Court of Appeals in a case EFF defended on behalf of Public.Resource.Org, have held that, whether or not the legal status of the standards changes once they are incorporated into law, making them fully accessible and usable online is a lawful fair use.

In this case, the Third Circuit found that UpCodes’s copying of the codes was a fair use, in a decision closely following the D.C. Circuit’s reasoning. Fair use turns on four factors listed in the Copyright Act, and the court found that all four favored UpCodes to some degree.

On the first factor, the purpose and character of the use, the court found that UpCodes’s use was “transformative” because it had a separate and distinct purpose from ASTM—informing people about the law, rather than just best practices in the building industry. No matter that UpCodes was copying and disseminating entire safety codes verbatim—using the codes for a different purpose was enough. And UpCodes being a commercial venture didn’t change the outcome either, because UpCodes wasn’t charging for access to the codes.

On the second factor, the nature of the copyrighted work, the Third Circuit joined other appeals courts in finding that laws are facts, and stand at “the periphery of copyright’s core protection.” And this included codes that were “indirectly” incorporated—meaning that they were incorporated into other codes that were themselves incorporated into law.

The third factor looks at the amount and substantiality of the material used. The court said that UpCodes could not have accomplished its purpose—providing access to the current binding laws governing building construction—without copying entire codes, so the copying was justified. Importantly, the court noted that UpCodes was justified in copying optional parts of the codes as well as “mandatory” sections because both help people understand what the law is.

Finally, the fourth factor looks at potential harm to the market for the original work, balanced against the public interest in allowing the challenged use. The court rejected an argument frequently raised by copyright holders—that harm can be assumed any time materials are posted to the internet for all to access. Instead, the court held that when a use is transformative, a rightsholder has to bring evidence of harm, and that harm will be balanced against the public benefit. Because “enhanced public access to the law is a clear and significant public benefit,” and ASTM hadn’t shown significant evidence that UpCodes had meaningfully reduced ASTM’s revenues, the fourth factor was at least neutral. It didn’t matter to the court that ASTM offered to provide copies of legally binding standards to the public on request, because “the mere possibility of obtaining a free technical standard does not nullify the public benefits associated with enhanced access to law.”

This is a good result that will expand the public’s access to the laws that bind us—something that’s more important than ever given recent assaults on the rule of law. In the future, we hope that courts will recognize that codes and standards lose copyright when they are incorporated into law, so that people don’t have to spend years and legal fees litigating fair use just to exercise their rights.

Two years ago, Congress passed the “Reforming Intelligence and Securing America” Act (RISAA) that included nominal reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA). The bill unfortunately included some problematic expansions of the law—but it also included a relatively big victory for civil liberties advocates: Section 702 authorities were only extended for two years, allowing Congress to continue the important work of negotiating a warrant requirement for Americans as well as some other critical reforms. 

However, Congress clearly did not continue this work. In fact, it now appears that Congress is poised to consider another extension of this program without even attempting to include necessary and common sense reforms. Most notably, Congress is not considering a requirement to obtain a warrant before looking at data on U.S. persons that was indiscriminately and warrantlessly collected. House Speaker Mike Johnson confirmed that “the plan is to move a clean extension of FISA … for at least 18 months.” 

Even more disappointing, House Judiciary Chair Jim Jordan, who has previously been a champion of both the warrant requirement and closing the data broker loophole, told the press he would vote for a clean extension of FISA, claiming that RISAA included enough reforms for the moment.

It’s important to note RISAA was just a reauthorization of this mass surveillance program with a long history of abuse. Prior to the 2024 reauthorization, Section 702 was already misused to run improper queries on peaceful protesters, federal and state lawmakers, Congressional staff, thousands of campaign donors, journalists, and a judge reporting civil rights violations by local police. RISAA further expanded the government’s authority by allowing it to compel a much larger group of people and providers into assisting with this surveillance. As we said when it passed, overall, RISAA is a travesty for Americans who deserve basic constitutional rights and privacy whether they are communicating with people and services inside or outside of the US.

Section 702 should not be reauthorized without any additional safeguards or oversight. Fortunately, there are currently three reform bills for Congress to consider: SAFE, PLEWSA, and GSRA. While none of these bills are perfect, they are all significantly better than the status quo, and should be considered instead of a bill that attempts no reform at all. 

Mass spying—accessing a massive amount of communications by and with Americans first and sorting out targets second and secretly—has always been a problem for our rights.  It was a problem at first when President George W. Bush authorized it in secret without Congressional or court oversight. And it remained a problem even after the passage of Section 702 in 2008 created the possibility of  some oversight. Congress was right that this surveillance is dangerous, and that's why it set Section 702 up for regular reconsideration. That reconsideration has not occurred, even as the circumstances of the NSA, Justice Department, and FBI leadership, have radically changed. Reform is long overdue, and now it's urgent.