The newest civil liberties battles are fought on the electronic frontier.
Log on. Check your Gmail. Click the URLs your friend just sent. One's a blog entry about electronic voting machines, the other is a news story about warrantless wiretapping. Grit your teeth. Go to Google. Type in "DNC." Use your credit card to fork over a few bucks to the first site that pops up. Toggle over to SuicideGirls.com. Maybe there are new pics from that model, the one with the dragon tattoo and the pierced everything. There aren't. But there is a new Gorillaz/White Stripes mash-up on GYBO.org. Get it. A new Kanye remix at Digital Eargasm. Download that too. (MP3s are all you use for music these days, ever since that Bad Plus CD left that rootkit stuff on your hard drive last fall-Suspicious Activity, indeed.) Scan the headlines on The Onion. Print out an article to read on the subway. You don't notice the faint grid of tiny yellow dots on the
edge of the page.
You may or may not recognize the risks in these quick and ostensibly innocuous visits with your laptop. Or the tenuous legality of some of the commonplace activities performed therein. But the Electronic Frontier Foundation (EFF) does. And as more and more of our lives are spent online, its crusade to safeguard our
freedoms in the digital age is all the more important. From file-sharing and fair use to electronic surveillance and online anonymity, the EFF has been at the forefront of battles that shape our online experience. It's been around since before the Internet was in common use, and as we enter the age of "Internet 2.0," with the Web's power and reach only growing, EFF's importance will do the same.
"We have a critical mass of people who are using pretty sophisticated technology as a part of their everyday life, and in fact relying on it," says Cindy Cohn, the EFF's legal director. "And that's starting to raise all sorts of interesting questions."
Many of those questions pertain to privacy issues. In New Mexico, EFF joined up with the ACLU two years ago to present a
conference on data privacy. In 2005, the ACLU lobbied the New Mexico State Legislature for a financial privacy act as well as a bill to remove radio frequency tags from consumer products. Neither passed, but the ACLU plans to revisit both bills next year. "This is a real burgeoning field of civil liberties," Peter Simonson, executive director of ACLU-New Mexico, says. "A lot of people feel it's the next frontier of civil liberties."
And that frontier needs a watchdog.
"So much of what we do is now electronic," says EFF Executive Director and President Shari Steele. "Unless there are groups like ours out there, being watchdogs for what's happening in the world of technology, we're going to lose our rights before most people even realize that anything has happened."
For an organization with just 22 members-primarily lawyers,
tech specialists, policy analysts, and activists-and a budget of just more than $2.5 million, the Electronic Frontier Foundation has its fingers in a lot of pies. Just scroll down the list of topics on the right side of its homepage. Biometrics. Bloggers' rights. The Digital Millennium
Copyright Act (DMCA). E-voting. Patents. Privacy. Spam. Surveillance. The EFF is a
gimlet-eyed observer of technological developments, speaking out when technology both is used to infringe on our rights (the Justice Department's recent subpoena of Google's search records) and itself is infringed on (the RIAA's war against file-sharing). And it doesn't just bark, it bites.
In January, for instance, the EFF filed a class-action lawsuit against AT&T in federal district court, accusing the telco giant of violating the law by supplying the National Security Agency access to two of its databases in collaboration with the Bush administration's warrantless domestic wiretapping. The outcome of that case remains to be seen, of course, but it's only the latest in a long series of bold and usually successful legal gambits (including signing on as a plaintiff in 1998 in an ACLU lawsuit against the state and former governor Gary Johnson). Acting either as counsel, amicus, or litigant and using its own eight staff lawyers or pro bono help from a network of sympathetic legal eagles, the EFF has racked up an impressive string of victories against some formidable foes, such as MGM and Diebold.
EFF has also jumped headlong into the "rootkit"
fiasco, filing a class-action suit against Sony BMG demanding that
it repair the egregious computer-security flaws caused by the
digital-rights-management technology it had secreted onto millions of CDs. (EFF was also one of the only groups crying foul about the grossly overreaching licensing terms in the End User Licensing Agreements-EULAs-upon which use of those CDs was contingent.) Sony agreed to a settlement, approved in January.
When the rootkit story broke last year, EFF staffers were disgusted, but not surprised. "We had been saying for years, even before the DMCA, that we were very concerned about overreaching DRM and all the problems it would bring," says Cindy Cohn. "We were really tempted to say, 'told you so.'"
The EFF, after all, is well-versed in the nefarious steps corporations and governments often take to restrict new technologies and keep tabs on the people who use them. Which is why they weren't all that shocked last October when, following up on a dropped dime about some strange yellow dots, all but invisible to the naked eye, that appear on pages run through color laser printers, they discovered that the faint 15 x 8 grids were actually tracking codes that can be used by
the government to trace documents back to their source. "It's the kind of thing that gives a lot of people the creeps," says Cohn with considerable understatement. "The fact that companies are creating a tracking system surreptitiously struck us as something the public ought to know about."
Sleuthing like that represents just a small sliver of
EFF's work. Litigation and litigation support comprise the lion's share of the group's labors, roughly 60 percent. The remainder of its resources go toward advocacy work- letter-writing campaigns, congressional call-ins-and the dogged attending of meetings, here and abroad, where global standards for new software and digital media are set. "We sit in the room while the designs are being made, and make sure they're taking into account the various principles of openness and not taking away people's rights," says Steele. Perhaps unsurprisingly, EFF representatives aren't always the most welcome guests in the corridors of corporate power. They like it that way.
"We have no elected government, nor are we likely to have one,
so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social
space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear."
John Perry Barlow wrote those
words in his famous "Declaration of the Independence of Cyberspace." The manifesto was penned in 1996, the day President Clinton signed into law the Telecommunications Act, the first major overhaul of American telecom policy in more than half a century. At that time, of course, most in the general public were still dog paddling around the World Wide Web rather than surfing it at full speed. But Barlow had been keenly aware for years of both the opportunities and the threats posed by cyberspace.
Deadheads probably know Barlow as the lyricist for Bob Weir-sung staples like "Estimated Prophet" and "Hell in a Bucket." He's also a poet. An essayist. A retired cattle rancher. A Harvard Fellow. And a one-time campaign manager for Dick Cheney. (He's since come out
emphatically against the Bush regime.) He's also a towering figure in the technology community,
a self-described "techno-crank" who's been called the "Thomas Jefferson of cyberspace." In 1990, he was the first to use the latter term, coined by sci-fi godhead William Gibson, to describe the nascent global electronic superstructure known as the Internet, and one of the first to posit cyberspace as a "new frontier," one categorically different from anything in the material world. And he was the first to make the case that the rights we have accumulated in this sphere should naturally carry over to that one.
There were other people in those early days who were also quite comfortable plumbing the depths of cyberspace. They were called hackers. Cloaking themselves in code names like "NuPrometheus" and "Phiber Optik," these brash and brilliant kids would spelunk the inner workings of computer systems and telephone networks, sometimes just exploring, but often burglarizing and vandalizing hardware and code.
When the government cracked down in the
late '80s and early '90s, they responded, as they often do, with an obtuse heavy-handedness, arresting scores of people in secret-service raids with names like Operation Sun Devil. As they did, federal agents
often proved that they knew next to nothing about this new technology. Even so, the penalties they sought to inflict on hackers were severe.
This troubled Barlow. And it troubled Mitchell Kapor. Kapor, who then lived in Boston, was a titan in the computer industry. The multi-millionaire founder of Lotus Development Corporation had designed the Lotus 1-2-3 spreadsheet, the PC's first "killer application," which, upon its release in 1983, helped cement computers' ubiquity in the business world.
Barlow and Kapor were very different people, living more than 2,000 miles apart, but they communicated frequently at the WELL (Whole Earth 'Lectronic Link), one of the first virtual communities, which has been bringing tech-savvy people together via scores of electronic bulletin boards since 1985. They also shared a keen interest in these
government stings, since they'd both been fingerprinted and questioned by the feds. While not always condoning hackers' illegal activities, they also realized that serious bounds were being crossed.
"The FBI was totally clueless. Utterly. We were both disturbed by the craziness of it," says Kapor. "It seemed to me and to John Barlow that there was a vast overreaction, an overreaching. It would be as if people who were actually committing nothing worse than vandalism were being tried for assault."
So, one day in 1990, on his way from Boston to San Francisco for business, Kapor had his private jet touch down at Barlow's ranch in Pinedale, Wyo. When they'd finished their powwow, the Electronic Frontier Foundation was born. Soon thereafter John Gilmore, a pioneer at Sun Microsystems, signed on as well, bringing not just deep pockets but a fervent belief in libertarianism. Then they got to work.
But was this just a "hacker defense
fund"
(as a dumbfounded Wall Street Journal called Kapor's new project) or a legitimate new group tackling serious constitutional issues? By the end of that year, the trial of a hacker named Craig Neidorf (a/k/a "Knight Lightning"), who was accused of publishing the stolen information about the inner workings of BellSouth's 911 protocols in his online 'zine, Phrack, erased all doubt. In it, the brains at EFF advised Neidorf's attorneys and helped assemble witnesses on his behalf, eventually saving him from a 31-year prison sentence-while simultaneously making the feds look like complete and utter rubes.
From that point on the EFF grew apace. "In the start-up phase, we were very effective at putting questions and issues on the table that had never been articulated," says Kapor. "For instance, the idea that the Bill of Rights extends into cyberspace, at least for Americans. Nobody had conceived of these issues. Nobody had spoken about issues involving security and computer networks and access and rights and civil liberties in the same sentence. Not the ACLU, they were nowhere. Because this
was all strange, technical, not mainstream. They just didn't know. Nobody knew."
But within a few years, the EFF's goals extended a bit beyond their reach. In 1993, they moved their offices to Washington, DC, with an eye to influencing policy right at the source. That was a mistake. "We were organizationally just not up to the challenge," says Kapor. "We were idealistic and naive. And we wound up getting very burned. So the organization beat a retreat to San Francisco to lick its wounds
and gather itself together in the mid '90s."
After a years-long interregnum, which Kapor describes as "sort of the Middle Ages, the Dark Ages, in which EFF was more marginal, less effective, less clear in its mission and identity, and had multiple near-death experiences," the renaissance began in earnest. Shari Steele, who had been the junior attorney when the EFF was in Washington, ascended to the executive director position in 2000. "She renewed its sense of mission and purpose," says Kapor. "And now it really is following the trajectory of being the ACLU of cyberspace."
The EFF subsists entirely on donations. And while its membership
of 10,000 or so is leaps and bounds above where it was 15 years ago, it's still paltry compared with the ACLU's 400,000 dues-paying members. But with low overhead and a lot of pro bono help, the
EFF has influenced a remarkable array of issues.
Unquestionably, a big bump in EFF's
stock came in 2003, when the RIAA started handing down its lawsuits against hundreds of people who used peer-to-peer technology. Suddenly, protection from the legal dragnet was needed. And while the EFF couldn't prevent P2P users from having to settle out of court with the RIAA, it was a valuable information resource; it also offered legal services to people wrongly accused, brought the Grokster case all the way to the Supreme Court, wrote white paper after white paper about the issue's ramifications, and even devised its own collective licensing scheme, "A Better Way Forward," that offers a realistic alternative to copyright laws that are clearly obsolete in the digital age.
Worcester's Nick Reveille, co-founder of P2P advocacy group Downhill Battle and the open-source software collaborative the Participatory Culture Foundation, has worked with EFF for years. They advised Downhill Battle of their legal rights when they defied EMI and
made DJ Dangermouse's Jay Z/Beatles mash-up,
The Grey Album
, available to millions online for 24 hours on "Grey Tuesday," two Februaries ago. And Downhill Battle and EFF worked together on a campaign to
protest the Induce Act, a broad and flawed bill that would potentially overturn the Betamax decision and stifle technological innovation and fair-use laws. (They co-sponsored a "Save Betamax" call-in day, swamping congressional offices with calls about what most politicians figured was an obscure issue.) Downhill Battle
and EFF are two very different groups who work in different ways toward the same goals.
"There's a generation growing up that's totally comfortable with everything in digital form," says Reveille. "Copying, sharing, remixing, reconfiguring. But your rights to do that are under constant attack. Media corporations want to force you to go through their channels all the time. But the EFF are the line of defense for the public against corporations that are constantly overreaching on copyright and trying to expand their influence over what the public can do."
If the Electronic Frontier Foundation won't actually become the
American Civil Liberties Union of the 21st Century, it will certainly continue to be a crucial defender of our rights, especially in areas the ACLU may not be as well equipped to handle.
While the EFF and the ACLU work together often,
says Steele, "one of the key things that's different about us from the
ACLU is that we actually have technologists on staff. What tends to happen for a lot of these tech issues is we're usually about 18 months or maybe even two years ahead of the ACLU, except for the ones where maybe we inform them and let them know, or ones that are very obviously traditional, like anonymity online.
"But something like encryption, which is something we were very involved in, it took us a while to get the ACLU involved because they didn't understand why it was important and
what it meant. Once they understood, they got involved and used their resources, and they were quite wonderful."
Some have called the EFF the "911 of the
Internet." You call them when some new and unforeseen technological emergency arises - they're the ones who will rush to the rescue. That's a real value. But it's also a problem. "Unfortunately for us, part of what we have to do is be able to react to whatever is going on,"
says Steele. "If
there's a new threat that shows up from a particular place, that's where
we have to focus resources."
As the EFF has established itself as an
important advocate and defender with the expansion of the Internet's reach and the profusion of new technologies in the last several years, so too is it forced to live on the fly, keeping an unblinking eye on the pitfalls and snares on the road to innovation.
"The truth is, the most important issues EFF is likely to work on in the next five years are issues that I haven't thought of yet, and neither have you," says Cohn. "It's gonna break, it's gonna be on the front page of the papers, and that will be what we're doing. Someone's going to need someone to stand up for them, and we'll do it."
