[Infowarrior] - EFF: Defending liberties in high-tech world

[Richard Forno]

Defending liberties in high-tech world
Despite its many legal victories, critics charge the EFF with idealism
By ANICK JESDANUN
The Associated Press

Updated: 6:00 p.m. ET July 5, 2006

SAN FRANCISCO - In March 1990, when few people had even heard of the
Internet, U.S. Secret Service agents raided the Texas offices of a small
board-game maker, seizing computer equipment and reading customers' e-mail
stored on one machine. A group of online pioneers already worried about how
the nation's laws were being applied to new technologies became even more
fearful and decided to intervene.

And thus the Electronic Frontier Foundation was born ‹ 16 years ago this
week ‹ taking on the Secret Service as its first case, one the EFF
ultimately won when a judge agreed that the government had no right to read
the e-mails or keep the equipment.

Today, after expanding into such areas as intellectual property and moving
its headquarters twice along with its focus, the EFF is re-emphasizing its
roots of trying to limit government surveillance of electronic
communications, while keeping a lookout for emerging threats even as the
Internet and digital technologies become mainstream.

In one of its highest-profile lawsuits to date, the EFF has accused AT&T
Inc. of illegally cooperating with the National Security Agency to make
phone and Internet communications available without warrants.

"It's quite possibly the most important privacy and free speech issue in the
21st century," said Kevin Bankston, an EFF staff attorney formerly with the
American Civil Liberties Union. "We are trying to force the government to
follow the law. We are trying to force the phone company to follow the law."

Shari Steele, the EFF's executive director, described the NSA program as "a
place where technology and civil liberties collide in a big way."

The EFF was born July 10, 1990, as three men who met on the online community
The WELL grew concerned that the ACLU and other traditional civil-liberties
organizations didn't understand technology enough to question government
actions like the Secret Service raid.

"It's difficult at this stage of the game to remember how few people even
knew the Internet existed," said John Perry Barlow, a co-founder who used to
write lyrics for the Grateful Dead. "It wasn't on their radar."

Even the World Wide Web wouldn't be invented for another five months.

Software pioneer Mitch Kapor, another co-founder, said that even when a
group like the ACLU had the will, it didn't have the technical know-how to
consider how basic, constitutional rights would even apply to the online
world.

"Nobody had done the thinking," he said. "The questions hadn't been raised."

So from Day One, the EFF sought to become a high-tech ACLU and ensure that
offline rights indeed transferred to emerging technologies.

Early on, the EFF took on government efforts to treat encryption technology
as military weapons rather than speech, and later it joined other groups in
successfully challenging _ on free-speech grounds _ congressional efforts to
block online pornography.

The group also defended developers of file-sharing software, arguing that
technology with legal uses shouldn't be barred even if others can use it to
commit crimes, such as trading copyright music and movies.

There have been internal tensions along the way as the organization left
Cambridge, Mass., for Washington, D.C., in 1993. The EFF started trying to
influence legislation, and some in the organization grew uncomfortable with
the need to compromise in that setting.

So the EFF moved once more, to San Francisco in 1995, and after dabbling
with corporate issues like privacy policies and spinning off the TRUSTe
privacy-certification program for businesses as a standalone organization,
it redirected its energies to litigation.

Most of the EFF's 25 employees now work in a former sewing factory and paint
warehouse in San Francisco's gritty Mission District, its cubicle-less
offices having the makeshift, open feel of a political campaign rather than
a law firm. Attorneys walk around sans ties and suits and hold impromptu
meetings on colorful couches. Chewed up tennis balls scattered throughout
provide evidence of a dog-friendly environment.

Although the EFF was among the few tech-focused groups when it formed, many
other organizations now complement it.

The Center for Democracy and Technology, or CDT, formed by former EFF
staffers in the rift over its role in lobbying, is housed in Washington and
tackles issues before Congress and federal agencies.

The ACLU also became active in technology and led the online pornography
lawsuits. In challenging the Bush administration's domestic-surveillance
program, the ACLU sued the government, while the EFF sued AT&T.

The EFF's nonlitigation projects include ongoing funding for the Tor system
for anonymous online communications and research last year exposing tracking
codes embedded in color laser printers. Its staffers also testify at public
hearings; one took part in an electronic-voting task force that released a
report on security in late June.

But the bulk of the work is legal ‹ 60 percent to 70 percent, Steele
estimated.

That focus has left the group open to criticisms that by refusing to play
the Washington game of compromising, its views are idealistic and sometimes
extremist.

"They are the lawyers for the open vision of the Internet," said Peter
Swire, the Clinton administration privacy counselor who sometimes tussled
with the EFF. "They are the Left Coast advocacy group."

Companies targeted by the EFF say the group appears overly skeptical of
intellectual property and the free market.

Paul Ryan, whose Acacia Research Corp. the EFF cited for "crimes against the
public domain" for claiming patents on streaming media, said the EFF ignores
the fact that without patent protection, companies have less incentive to
innovate.

The EFF also has faced criticisms that, despite its many victories, its
losses can establish legal precedents that make subsequent cases harder to
win. In the file-sharing case, the EFF won twice in lower courts, but the
Supreme Court narrowed a 1984 ruling that technology shouldn't automatically
be barred because it had illegal uses.

"The decision to expend energy on cases and in some sense to work to get
them to the Supreme Court is to really gamble with the outcome," said Danny
Weitzner, who left EFF in 1994 to help form the rival CDT.

He said the EFF should have waited for a better case, so that the high court
wouldn't be "deciding about whether kids could steal music."

EFF attorneys say that they can't always wait for the perfect case and could
at least prevent a worse ruling.

Others say that by refusing to take risks, no rights will be left.

"People will always second guess what you do," said Lee Tien, an EFF
attorney active in the AT&T lawsuit. "If you're going to be afraid to
complain about something wrong, you deserve to have wrongdoing done to you."

The EFF continues to tackle issues like anonymity, electronic voting,
patents and copyright, but the Sept. 11 attacks nearly five years ago have
forced the EFF to spend more time on surveillance.

It has sought to require more evidence before law enforcement can legally
track people's locations by their cell phones, and in January the group sued
AT&T, saying the San Antonio-based company violated U.S. law and the privacy
of its customers. AT&T and NSA officials declined comment for this article.

The AT&T lawsuit already has generate grassroots momentum for the group,
which gets the bulk of its $2.5 million budget from individuals. About 1,400
joined the EFF and sent in contributions after the EFF sent a mid-May appeal
that cited the AT&T case. The group now has about 11,500 dues-paying
members.

Basic online rights are more established today than when the EFF formed, but
EFF legal director Cindy Cohn said there's no shortage of cutting-edge
cases.

"We're not near the end of the digital revolution in terms of new technology
being rolled out," she said. "Just because some stuff is mainstream, there's
still a lot of stuff coming down the road to raise new issues or raise old
issues over again in slightly new ways."

The EFF, she said, remains committed to fighting the battles "nobody's
talking about yet."
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