This year, a far-reaching, complex new piece of legislation comes into effect in EU: the Digital Markets Act (DMA), which represents some of the most ambitious tech policy in European history. We don’t love everything in the DMA, but some of its provisions are great, because they center the rights of users of technology, and they do that by taking away some of the control platforms exercise over users, and handing that control back to the public who rely on those platforms.

Our favorite parts of the DMA are the interoperability provisions. IP laws in the EU (and the US) have all but killed the longstanding and honorable tradition of adversarial interoperability: that’s when you can alter a service, program or device you use, without permission from the company that made it. Whether that’s getting your car fixed by a third-party mechanic, using third-party ink in your printer, or choosing which apps run on your phone, you should have the final word. If a company wants you to use its official services, it should make the best services, at the best price – not use the law to force you to respect its business-model.

It seems the EU agrees with us, at least on this issue. The DMA includes several provisions that force the giant tech companies that control so much of our online lives (AKA “gatekeeper platforms”) to provide official channels for interoperators. This is a great idea, though, frankly, lawmakers should also restore the right of tinkerers and hackers to reverse-engineer your stuff and let you make it work the way you want.

One of these interop provisions is aimed at app stores for mobile devices. Right now, the only (legal) way to install software on your iPhone is through Apple’s App Store. That’s fine, so long as you trust Apple and you think they’re doing a great job, but pobody’s nerfect, and even if you love Apple, they won’t always get it right – like when they tell you you’re not allowed to have an app that records civilian deaths from US drone strikes, or a game that simulates life in a sweatshop, or a dictionary (because it has swear words!). The final word on which apps you use on your device should be yours.

Which is why the EU ordered Apple to open up iOS devices to rival app stores, something Apple categorically refuses to do. Apple’s “plan” for complying with the DMA is, shall we say, sorely lacking (this is part of a grand tradition of American tech giants wiping their butts with EU laws that protect Europeans from predatory activity, like the years Facebook spent ignoring European privacy laws, manufacturing stupid legal theories to defend the indefensible).

Apple’s plan for opening the App Store is effectively impossible for any competitor to use, but this goes double for anyone hoping to offer free and open source software to iOS users. Without free software – operating systems like GNU/Linux, website tools like WordPress, programming languages like Rust and Python, and so on – the internet would grind to a halt.

Our dear friends at Free Software Foundation Europe (FSFE) have filed an important brief with the European Commission, formally objecting to Apple’s ridiculous plan on the grounds that it effectively bars iOS users from choosing free software for their devices.

FSFE’s brief makes a series of legal arguments, rebutting Apple’s self-serving theories about what the DMA really means. FSFE shoots down Apple’s tired argument that copyrights and patents override any interoperability requirements. U.S. courts have been inconsistent on this issue, but we’re hopeful that the Court of Justice of the E.U. will reject the “intellectual property trump card.” Even more importantly, FSFE makes moral and technical arguments about the importance of safeguarding the technological self-determination of users by letting them choose free software, and about why this is as safe – or safer – than giving Apple a veto over its customers’ software choices.

Apple claims that because you might choose bad software, you shouldn’t be able to choose software, period. They say that if competing app stores are allowed to exist, users won’t be safe or private. We disagree – and so do some of the most respected security experts in the world.

It’s true that Apple can use its power wisely to ensure that you only choose good software. But it’s also used that power to attack its users, like in China, where Apple blocked all working privacy tools from iPhones and then neutered a tool used to organize pro-democracy protests.

It’s not just in China, either. Apple has blanketed the world with billboards celebrating its commitment to its users’ privacy, and they made good on that promise, blocking third-party surveillance (to the $10 billion dollar chagrin of Facebook). But right in the middle of all that, Apple also started secretly spying on iOS users to fuel its own surveillance advertising network, and then lied about it.

Pobody’s nerfect. If you trust Apple with your privacy and security, that’s great. But for people who don’t trust Apple to have the final word – for people who value software freedom, or privacy (from Apple), or democracy (in China), users should have the final say.

We’re so pleased to see the EU making tech policy we can get behind – and we’re grateful to our friends at FSFE for holding Apple’s feet to the fire when they flout that law.

At EFF, our work always begins from the same place: technological self-determination. That’s the right to decide which technology you use, and how you use it. Technological self-determination is important for every technology user, and it’s especially important for users with disabilities.

Assistive technologies are a crucial aspect of living a full and fulfilling life, which gives people with disabilities motivation to be some of the most skilled, ardent, and consequential technology users in the world. There’s a whole world of high-tech assistive tools and devices out there, with disabled technologists and users intimately involved in the design process. 

The accessibility movement’s slogan, “Nothing about us without us,” has its origins in the first stirrings of European democratic sentiment in sixteenth (!) century and it expresses a critical truth: no one can ever know your needs as well you do. Unless you get a say in how things work, they’ll never work right.

So it’s great to see people with disabilities involved in the design of assistive tech, but that’s where self-determination should start, not end. Every person is different, and the needs of people with disabilities are especially idiosyncratic and fine-grained. Everyone deserves and needs the ability to modify, improve, and reconfigure the assistive technologies they rely on.

Unfortunately, the same tech companies that devote substantial effort to building in assistive features often devote even more effort to ensuring that their gadgets, code and systems can’t be modified by their users.

Take streaming video. Back in 2017, the W3C finalized “Encrypted Media Extensions” (EME), a standard for adding digital rights management (DRM) to web browsers. The EME spec includes numerous accessibility features, including facilities for including closed captioning and audio descriptive tracks.

But EME is specifically designed so that anyone who reverse-engineers and modifies it will fall afoul of Section 1201 of the Digital Millennium Copyright Act (DMCA 1201), a 1998 law that provides for five-year prison-sentences and $500,000 fines for anyone who distributes tools that can modify DRM. The W3C considered – and rejected – a binding covenant that would protect technologists who added more accessibility features to EME.

The upshot of this is that EME’s accessibility features are limited to the suite that a handful of giant technology companies have decided are important enough to develop, and that suite is hardly comprehensive. You can’t (legally) modify an EME-restricted stream to shift the colors to ones that aren’t affected by your color-blindness. You certainly can’t run code that buffers the video and looks ahead to see if there are any seizure-triggering strobe effects, and dampens them if there are. 

It’s nice that companies like Apple, Google and Netflix put a lot of thought into making EME video accessible, but it’s unforgivable that they arrogated to themselves the sole right to do so. No one should have that power.

It’s bad enough when DRM infects your video streams, but when it comes for hardware, things get really ugly. Powered wheelchairs – a sector dominated by a cartel of private-equity backed giants that have gobbled up all their competing firms – have a serious DRM problem.

Powered wheelchair users who need even basic repairs are corralled by DRM into using the manufacturer’s authorized depots, often enduring long waits during which they are unable to leave their homes or even their beds. Even small routine adjustments, like changing the wheel torque after adjusting your tire pressure, can require an official service call.

Colorado passed the country’s first powered wheelchair Right to Repair law in 2022. Comparable legislation is now pending in California, and the Federal Trade Commission has signaled that it will crack down on companies that use DRM to block repairs. But the wheels of justice grind slow – and wheelchair users’ own wheels shouldn’t be throttled to match them.

People with disabilities don’t just rely on devices that their bodies go into; gadgets that go into our bodies are increasingly common, and there, too, we have a DRM problem. DRM is common in implants like continuous glucose monitors and insulin pumps, where it is used to lock people with diabetes into a single vendor’s products, as a prelude to gouging them (and their insurers) for parts, service, software updates and medicine.

Even when a manufacturer walks away from its products, DRM creates insurmountable legal risks for third-party technologists who want to continue to support and maintain them. That’s bad enough when it’s your smart speaker that’s been orphaned, but imagine what it’s like to have an orphaned neural implant that no one can support without risking prison time under DRM laws.

Imagine what it’s like to have the bionic eye that is literally wired into your head go dark after the company that made it folds up shop – survived only by the 95-year legal restrictions that DRM law provides for, restrictions that guarantee that no one will provide you with software that will restore your vision.

Every technology user deserves the final say over how the systems they depend on work. In an ideal world, every assistive technology would be designed with this in mind: free software, open-source hardware, and designed for easy repair.

But we’re living in the Bizarro world of assistive tech, where not only is it normal to distribute tools for people with disabilities are designed without any consideration for the user’s ability to modify the systems they rely on – companies actually dedicate extra engineering effort to creating legal liability for anyone who dares to adapt their technology to suit their own needs.

Even if you’re able-bodied today, you will likely need assistive technology or will benefit from accessibility adaptations. The curb-cuts that accommodate wheelchairs make life easier for kids on scooters, parents with strollers, and shoppers and travelers with rolling bags. The subtitles that make TV accessible to Deaf users allow hearing people to follow along when they can’t hear the speaker (or when the director deliberately chooses to muddle the dialog). Alt tags in online images make life easier when you’re on a slow data connection.

Fighting for the right of disabled people to adapt their technology is fighting for everyone’s rights.

(EFF extends our thanks to Liz Henry for their help with this article.)

Across the United States, nearly every state’s prison system offers some form of tablet access to incarcerated people, many of which boast of sizable libraries of eBooks. Knowing this, one might assume that access to books is on the rise for incarcerated folks. Unfortunately, this is not the case. A combination of predatory pricing, woefully inadequate eBook catalogs, and bad policies restricting access to paper literature has exacerbated an already acute book censorship problem in U.S. prison systems.

New data collected by the Prison Banned Books Week campaign focuses on the widespread use of tablet devices in prison systems, as well as their pricing structure and libraries of eBooks. Through a combination of interviews with incarcerated people and a nationwide FOIA campaign to uncover the details of these tablet programs, this campaign has found that, despite offering access to tens of thousands of eBooks, prisons’ tablet programs actually provide little in the way of valuable reading material. The tablets themselves are heavily restricted, and typically only designed by one of two companies: Securus and ViaPath. The campaign also found that the material these programs do provide may not be accessible to many incarcerated individuals.

“We might as well be rummaging the dusty old leftovers in some thrift store or back alley dumpster.”

Limited, Censored Selections at Unreasonable Prices

Many companies that offer tablets to carceral facilities advertise libraries of several thousand books. But the data reveals that a huge proportion of these books are public domain texts taken directly from Project Gutenberg. While Project Gutenberg is itself laudable for collecting freely accessible eBooks, and its library contains many of the “classics” of Western literary canon, a massive number of its texts are irrelevant and outdated. As Shawn Y., an incarcerated interviewee in Pennsylvania put it, “Books are available for purchase through the Securus systems, but most of the bookworms here [...] find the selection embarrassingly thin, laughable even. [...] We might as well be rummaging the dusty old leftovers in some thrift store or back alley dumpster.”

These limitations on eBook selections exacerbate the already widespread censorship of physical reading materials, based on a variety of factors including books being deemed “harmful” content, determinations based on the book’s vendor (which, reports indicate, can operate as a ban on publishers), and whether the incarcerated person obtained advance permission from a prison administrator. Such censorial decisionmaking undermines incarcerated individuals’ right to receive information.

These costs are a barrier that deprive those in carceral facilities from developing and maintaining a connection with life outside prison walls.

Some facilities charge $0.99 or more per eBook—despite their often meager, antiquated selections. While this may not seem exorbitant to many people, a recent estimate of average hourly wages for incarcerated people in the US is $0.63 per hour. And these otherwise free eBooks can often cost much more: Larry, an individual incarcerated in Pennsylvania, explains, “[s]ome of the prices for other books [are] extremely outrageous.” In Larry’s facility, “[s]ome of those tablet prices range over twenty dollars and even higher.”

Even if one can afford to rent these eBooks, they may have to pay for the tablets required to read them. For some incarcerated individuals, these costs can be prohibitive: procurement contracts in some states appear to require incarcerated people to pay upwards of $99 to use them. These costs are a barrier that deprive those in carceral facilities from developing and maintaining a connection with life outside prison walls.

Part of a Trend Toward Inadequate Digital Replacements

The trend of eliminating physical books and replacing them with digital copies accessible via tablets is emblematic of a larger trend from physical to digital that is occurring throughout our carceral system. These digital copies are not adequate substitutes. One of the hallmarks of tangible physical items is access: someone can open a physical book and read it when, how, and where they want. That’s not the case with the tablet systems prisons are adopting, and worryingly this trend has also extended to such personal items as incarcerated individual's personal mail.

EFF is actively litigating to defend incarcerated individuals’ rights to access and receive tangible reading materials with our ABO Comix lawsuit. There, we—along with the Knight First Amendment Institute and Social Justice Legal Foundation—are fighting a San Mateo County (California) policy that bans those in San Mateo jails from receiving physical mail. Our complaint explains that San Mateo’s policy requires the friends and families of those jailed in its facilities to send their letters to a private company that scans them, destroys the physical copy, and retains the scan in a searchable database—for at least seven years after the intended recipient leaves the jail’s custody. Incarcerated people can only access the digital copies through a limited number of shared tablets and kiosks in common areas within the jails.

Just as incarcerated peoples’ reading materials are censored, so is their mail when physical letters are replaced with digital facsimiles. Our complaint details how ripping open, scanning, and retaining mail has impeded the ability of those in San Mateo’s facilities to communicate with their loved ones, as well as their ability to receive educational and religious study materials. These digital replacements are inadequate both in and of themselves and because the tablets needed to access them are in short supply and often plagued by technical issues. Along with our free expression allegations, our complaint also alleges that the seizing, searching, and sharing of data from and about their letters violates the rights of both senders and recipients against unreasonable searches and seizures.

Our ABO Comix litigation is ongoing. We are hopeful that the courts will recognize the free expression and privacy harms to incarcerated individuals and those who communicate with them that come from digitizing physical mail. We are also hopeful, on the occasion of this Prison Banned Books Week, for an end to the censorship of incarcerated individuals’ reading materials: restricting what some of us can read harms us all.

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what's at stake and what we need to do to make sure that copyright promotes creativity and innovation.

The video game industry is undergoing the same concerning changes we’ve seen before with film and TV, and it underscores the need for meaningful digital ownership.

Twenty years ago you owned DVDs. Ten years ago you probably had a Netflix subscription with a seemingly endless library. Now, you probably have two to three subscription services, and regularly hear about shows and movies you can no longer access, either because they’ve moved to yet another subscription service, or because platforms are delisting them all together.

The video game industry is getting the same treatment. While it is still common for people to purchase physical or digital copies of games, albeit often from within walled gardens like Steam or Epic Games, game subscriptions are becoming more and more common. Like the early days of movie streaming, services like Microsoft Game Pass or PlayStation Plus seem to offer a good deal. For a flat monthly fee, you have access to seemingly unlimited game choices. That is, for now.

In a recent announcement from game developer Ubisoft, their director of subscriptions said plainly that a goal of their subscription service’s rebranding is to get players “comfortable” with not owning their games. Notably, this is from a company which had developed five non-mobile games last year, hoping users will access them and older games through a $17.99 per month subscription; that is, $215.88 per year. And after a year, how many games does the end user actually own? None. 

This fragmentation of the video game subscription market isn’t just driven by greed, but answering a real frustration from users the industry itself has created. Gamers at one point could easily buy and return games, they could rent games they were only curious about, and even recoup costs by reselling their game. With the proliferation of DRM and walled-garden game vendors, ownership rights have been eroded. Reselling or giving away a copy of your game, or leaving it for your next of kin, is no longer permitted. The closest thing to a rental now available is a game demo (if it exists) or playing a game within the time frame necessary to get a refund (if a storefront offers one). These purchases are also put at risk as games are sometimes released incomplete beyond this time limit. Developers such as Ubisoft will also shut down online services which severely impact the features of these games, or even make them unplayable.

DRM and tightly controlled gaming platforms also make it harder to mod or tweak games in ways the platform doesn’t choose to support. Mods are a thriving medium for extending the functionalities, messages, and experiences facilitated by a base game, one where passion has driven contributors to design amazing things with a low barrier to entry. Mods depend on users who have the necessary access to a work to understand how to mod it and to deploy mods when running the program. A model wherein the player can only access these aspects of the game in the ways the manufacturer supports undermines the creative rights of owners as well.

This shift should raise alarms for both users and creators alike. With publishers serving as intermediaries, game developers are left either struggling to reach their audience, or settling for a fraction of the revenue they could receive from traditional sales. 

We need to preserve digital ownership before we see video games fall into the same cycles as film and TV, with users stuck paying more and receiving not robust ownership, but fragile access on the platform’s terms.