TELECOM Digest OnLine - Sorted: EFF Defends Liberties in High-Tech World

EFF Defends Liberties in High-Tech World

Anick Jesdanun (
Thu, 6 Jul 2006 17:37:54 -0500

By ANICK JESDANUN, AP Internet Writer

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 next Monday -- 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

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

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

Even the World Wide Web wouldn't be invented for another five months,
until almost the end of 1990, then begin to gain in popularity through
1991 and 1992, finally getting a firm start in 1993.

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

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

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

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

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."

Copyright 2006 The Associated Press.

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