The Electronic Frontier Foundation: Still Protecting Civil Liberties in Cyberspace
By David Large
The Internet. The iPod. Smart phones. WikiLeaks. Technologies transform our society, and transform us into consumers and creators of digital information.
When our privacy and freedom in this networked world come under attack, the Electronic Frontier Foundation (EFF), a Rex grantee in 1993 and 1994, has consistently been the first line of defense. Founded in 1990 by Mitch Kapor, John Perry Barlow (also a Rex Foundation co-founder and Advisory Board member) and John Gilmore well before the Internet was on most people’s desktops, EFF confronts cutting-edge issues in defense of free speech, privacy, innovation, and consumer rights. EFF’s efforts in the early 1990s let us take for granted that electronic mail enjoys the same privacy protections as telephone messages, and that software code is protected speech under the First Amendment.
Currently comprising a staff of 30 attorneys and researchers, EFF continues to take on cases that set important precedents protecting our rights in cyberspace: winning the exemptions that make it legal to “jailbreak” smart phones and for artists and educators to use excerpts from DVDs; arguing in the courts to protect the privacy of the location data broadcast by your cell phone; and helping to create new technology to protect security and privacy on the Internet.
As privacy and fair-use issues proliferate and grow more complex in the online world, we thought it timely to get the insights of EFF’s current Executive Director, Shari Steele, on how these issues have evolved since EFF’s early days, and what she sees as the next decade’s most important issues.
Rex Foundation: The early cases that put EFF “on the map” led to court decisions stating that electronic mail deserves at least as much protection as private telephone communications, and that computer software written by private individuals qualifies as speech protected by the First Amendment. We now take these principles for granted, but they must have seen pretty “blue sky” in 1990. How did the founders of EFF have the foresight to see the importance of these cases, and what was the impact of their decisions?
Shari Steele, Electronic Frontier Foundation: Our founders — Mitch Kapor, John Perry Barlow, and John Gilmore — were able to see the potential for the Internet to be a world-changing communications tool. But they also had the foresight to know what they didn’t know: all the different ways the Internet and other digital communications tools could evolve and change.
From EFF’s very first cases, we’ve worked consistently to make sure the Constitution makes it intact into cyberspace, no matter where cyberspace ends up. We increasingly are living digital lives, in ways that are changing every day. We deserve all the rights and freedoms we’ve already fought for in the physical world to remain in our digital world.
It’s interesting that you mentioned email privacy as something people now take for granted. In December of 2010, an appeals court ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers. The government had argued that the email stored with a company like Google or Yahoo had different protections than the email that was stored on your computer. This is a great example of how we need to fight for the spirit of freedom and privacy in all of our technologies, no matter how they evolve.
Rex: Those early cases involved the government’s incursions into our right to communicate freely and privately. Do most of the important online issues today still involve clashes between individual rights and government powers, or have they shifted more toward industrial commerce, fraud and protection of consumers’ rights?
EFF: Issues of government overreach are still quite concerning. There is a natural tension between government power and individual rights, and groups like EFF play an important watchdog role to keep government power in check.
For example, over the last 10 years, the government has tried to expand its surveillance powers, using what it sees as loopholes between current law and evolving technology to skirt our understandings and expectations of privacy. Much of our electronic privacy law is outdated, and EFF and other groups are working to reform this. This is an area in which EFF has particular expertise, and our work on these issues is more important that ever.
EFF is involved in ongoing litigation and advocacy to stop the government’s attempts to expand its surveillance authority. Last fall, government officials floated a plan to mandate back doors in all communications systems — from email and webmail to Skype, Facebook and even Xboxes — to ease its ability to spy on Americans. The head of the FBI publicly claimed that these “back doors” are needed because advances in technology are eroding agents’ ability to intercept information. But back doors have enormous privacy and security ramifications, and the government shouldn’t mandate our service providers to build in systems vulnerabilities. Additionally, we haven’t seen any examples from the government of why these back doors are necessary. That’s why we are using the Freedom of Information Act (FOIA) to ask federal agencies about specific incidents where they encountered obstacles in electronic surveillance. Without this information, the government is asking the public to blindly rubber stamp a flawed plan at a very high cost to our basic rights.
Meantime, we are still working on our two lawsuits aimed at stopping the mass surveillance that sweeps up millions of Americans’ domestic communications and communications records. Both cases are based on undisputed evidence from a former AT&T technician showing that the company routed copies of Internet traffic to a secret room in San Francisco controlled by the National Security Agency. Congress passed a law giving immunity to AT&T and other telecoms for their role in this illegal spying, which has slowed down our legal progress. But we are fighting both cases in the 9th Circuit Court of Appeals.
At the same time, millions of us increasingly trust third-party companies, like Facebook, Google, and Amazon, with large troves of our personal data. Using these services, we create digital roadmaps of our lives that never existed before. How do we want those roadmaps to be used? Do we want them to be created at all? These are key questions we need to consider as we create, adopt, and adapt new technologies.
We need to make sure that technologies build in privacy as well as functionality. As Mitch Kapor stated back in the early days, “Architecture is policy.”
Rex: Some of EFF’s legal victories this past year affect artists who remix or extract from existing videos. What were the issues in these cases, and how will EFF’s victories benefit video artists and documentary film producers?
EFF: It used to be very difficult for independent film producers of any stripe to find screening and distribution for their work. With the Internet, affordable digital video tools, and hosting sites like YouTube, anyone with a good idea can post a short film and potentially earn a huge audience. But misuse of the law can stymie this new blossoming of art, journalism, and criticism.
One of our big victories this year was winning groundbreaking new protections for video remix artists. After an EFF petition to the Copyright Office, the Library of Congress granted an exemption to federal law, allowing amateur creators to use short excerpts from DVDs in order to create new, noncommercial works for purposes of criticism or comment if they believe that circumvention is necessary to fulfill that purpose. Hollywood has historically taken the view that “ripping” DVDs is always a violation of federal law, no matter the purpose, and the threat of potential legal action had a chilling effect on people who create this new form of art.
EFF is also fighting for the rights of video creators in the case of Lenz v. Universal, where a mom posted a 29-second video to YouTube of her toddler son dancing to a Prince song in the family’s kitchen. Stephanie Lenz received a takedown notice from Prince’s music label, saying the video was an infringement of its copyright in the music — even though the short excerpt of the song could only be heard fuzzily in the background. We believe this is a fair use of copyrighted material. EFF is fighting this in court, because we should be able to use new technologies to document our lives without corporate permission.
Rex: What generally is meant by “fair use” in this context, and how has the Digital Millennium Copyright Act been used to attempt to limit free-speech and fair-use related rights?
EFF: Fair use is the legal right to use copyrighted material for criticism, comment, parody, and other expressive purposes. There are no hard and fast rules around fair use, but it’s a critical part of the Copyright Act, because it lets us do things like quote from a book in a book review, or post a short audio clip from a radio show in order to respond to it in a blog post.
The tension you describe exists because the DMCA contains provisions to easily remove copyright violations from the Internet–provisions often misused by those who don’t want to read comments or criticism about themselves. Claimants are increasingly using the DMCA to demand immediate removal of materials without providing any proof of actual infringement, and service providers, who are fearful of monetary damages and legal hassles, often comply with these requests without double-checking them, despite the cost to free speech and individual rights.
We started a “Takedown Hall of Shame” to highlight the worst abusers of the takedown provisions of the DMCA. We have dozens of examples of the DMCA being misused to take down critical speech, including Yahoo! trying to disable access to a law enforcement pricelist, same-sex marriage opponents silencing a critical YouTube clip, and Diebold attempting to wipe out a discussion of flaws in their voting machines. The Lenz case discussed above is another good example of DMCA misuse.
The DMCA also puts anonymous speakers in jeopardy. Misusing the DMCA’s subpoena power, copyright holders have attempted to unmask users’ identities based on mere allegations of infringement, without ever filing actual lawsuits or providing users with any constitutional due process.
Rex: Do you see issues that the Rex community of music lovers and professional musicians should be particularly aware of?
EFF: The recording industry is continuing its war on technology that facilitates sharing of music and other files. But as you know, not all music sharing is illegal. For many musicians, it’s the best way to get known and build an audience.
Yet the entertainment industry is on a campaign that impacts legal sharing as well as free speech for millions of music fans. There’s a bill making its way through Congress right now called the “Combating Online Infringements and Counterfeits Act,” or COICA, that is very dangerous. This bill would interfere with the Internet’s domain name system (DNS), which translates names like “www.eff.org” or “www.nytimes.com” into the IP addresses that computers use to find the site you’re seeking. COICA would cripple the DNS to block users from accessing sites. Any website could be placed on that blacklist if the Attorney General tells a court that infringement is “central” to the purpose of the site.
If this bill passes, the list of targets could conceivably include hosting websites, as well as sites that discuss political issues around file sharing. If this bill had been passed five or 10 years ago, YouTube might not exist today.
There are already laws and procedures in place for taking down sites that violate the law. COICA will endanger new ways of distribution for independent artists and will be used as a new censorship mechanism for the Internet.
Rex: What are the looming broad legal issues?
EFF: A big trend we’re seeing right now is something we are calling “copyright trolls.” These are groups of copyright owners and their attorneys who are using mass copyright litigation to extract settlements from individuals.
Their tactics include targeting large groups of anonymous “Doe defendants” and accusing them of copyright infringement for downloading movies, pornography, or other material. The targets get scary letters that cite massive potential damages in order to pressure them into settling quickly, no matter if they are innocent or guilty, or how they might be able to mount a defense.
EFF is working to show courts how unfair these shoddy cases are, and we’re making progress. But education for those who might be targeted by such a lawsuit is extremely important as well, and you can find more information on our website.
Another big issue right now is intermediaries on the Internet, and the extent to which we all rely on them to communicate. The situation with WikiLeaks is an important recent example. WikiLeaks found itself kicked off of Amazon’s servers with a claim that WikiLeaks had violated Amazon’s terms of service. News services reported that the decision came after a phone call by a member of Senator Joe Lieberman’s staff. Many others followed suit, including PayPal, MasterCard and others.
These intermediaries are private actors, and they have a legal right to choose the customers with whom they do business. However, the trend to look into the specifics of our online interactions–in this case, using a disagreement over First Amendment-protected political speech–to ostracize individuals or companies, is very troubling.
We’re figuring out exactly how EFF can have the most impact, so we’ll continue watching this trend and blogging our thoughts about it.Â At the very least, we’ll keep encouraging Internet users to support businesses with backbone and to call out bad corporate behavior when they see it.
Rex: What are the challenges of managing–and raising funds for–today’s EFF?
EFF: EFF has managed to diversify our funding sources through the years, getting a higher percentage of our contributions from foundations and other sources, but over half of our operating expenses still comes from individual donors, both large and small. Donations from passionate Internet users enable us to remain independent and flexible with the battles we choose. Our outspoken, knowledgeable membership is one of the things that keep us strong.
Rex: What issues does EFF expect to address in the coming year?
EFF: Privacy issues in social networking and other Internet services will be huge. Another thing to watch is the free-speech issues surrounding WikiLeaks. WikiLeaks has fueled an emotionally charged debate about the secrecy of government information and the people’s right to know. We have welcomed this debate, and the fact that there have been myriad views is the embodiment of the freedom of expression upon which this country was founded.
However, we are also seeing something more disturbing — a massive attack on the right of intermediaries to publish truthful information. WikiLeaks has become the Internet’s scapegoat, with a Who’s Who of American and foreign companies choosing to shun the site. In the United States, at least, Wikileaks has a fundamental right to publish truthful political information. And equally important, Internet users have a fundamental right to read that information and voice their opinions about it.
We live in a society that values freedom of expression and shuns censorship. Unfortunately, those values are only as strong as the will to support them — a will that seems to be dwindling now in an alarming way. Lawmakers in the U.S. have rashly proposed a law that threatens legitimate news reporting well beyond WikiLeaks. We expect to see similar efforts in other countries. In the next year, we need to watch these developments, and make sure that lawmakers protect the rights we hold dear.
One of the most important things we need to do at EFF is stay nimble and continue to look at the frontier. We didn’t know when this year started that we’d be dealing with copyright trolls, the COICA bill, and WikiLeaks. But we did have an idea that many of these issues would crop up in some way, and doing that groundwork to protect freedom in future developments is instrumental to our mission.