Common Dreams / Published on Tuesday, May 23, 2006 by the San Francisco ChronicleBob Egelko Sixteen years ago, a cattle rancher and Grateful Dead lyricist named John Perry Barlow surveyed the landscape of electronic communications and had visions of the Wild West. Thus was conceived the Electronic Frontier Foundation. "We were in the lawlessness phase, and the sheriff was coming to town,'' said Shari Steele, executive director of the San Francisco-based organization that Barlow and two colleagues founded. Only rather than siding with latter-day sheriffs seeking to ride herd on the fledgling Internet, Steele said, "we were trying to keep the freewheeling, Wild West feeling going and protect people's rights.'' The nonprofit organization has gone to court for hackers, programmers, inventors, challengers to patent and copyright restrictions -- for the most part, the gadflies and small fry of the computer age, confronting barriers built by government and, increasingly, by private industry. In January, the foundation filed what may be its biggest case: a lawsuit accusing AT&T of illegally turning over tens of millions of telephone and Internet records to the National Security Agency. The suit faces a crucial test June 23, when a federal judge in San Francisco will hear dismissal motions by AT&T and the Bush administration. Its friends call the foundation the American Civil Liberties Union of cyberspace, a champion of digital democracy. Its foes call it an enemy of free enterprise. Documents Describe Technology Allegedly Used in Surveillance by Telecom Giant |
"They seem to believe that we all live in a common, and that everybody will abide by agreed-upon rules and people will be compensated for their work and nobody will abuse the system,'' Ross said.
The Electronic Frontier Foundation and its supporters insist that they are pro-competition but that the biggest threats to free enterprise, and free speech, can be found in a merger of powerful forces in the private and public spheres.
"The challenge isn't from the government alone, from industry alone or from technology alone,'' said Jennifer Granick, executive director of the Center for Internet and Society at Stanford Law School and an admirer of the Electronic Frontier Foundation.
"In different moments, each of these are friends of civil liberties," Granick said. "Sometimes they conspire in some combination of the three to be a challenge to civil liberties.''
In that regard, Granick said, the foundation has become "a litigation arm of the Internet civil liberties battle.''
Steele, who heads a staff of 25 -- including nine lawyers and two "staff technologists'' -- with a $2.5 million annual budget, said her goal is "to make sure that the laws we know and love in the real world are translating online. Like a journalist's privilege to keep sources private -- bloggers should get the same privilege.''
The AT&T case is a typical foundation suit in some respects. It pits the organization and its allies against the might of both the telecommunications industry and the federal government, which has intervened to seek dismissal of the case on the grounds that it would expose military secrets.
But in one sense, the case is unusual for the foundation, because it asserts rights that are familiar to ordinary Americans, like the right to keep Big Brother out of one's private conversations. More commonly, the organization has a hard time convincing the courts and the public that its clients represent essential freedoms.
One example was the foundation's representation of Streamcast Networks, whose software program allowed users to copy and swap music and movies online. The Supreme Court ruled unanimously last June that Streamcast and Grokster Inc. could be held liable for inducing users to download copyrighted material from the Internet. Even before the ruling, Steele said, the opposition had won the battle to define the issue.
"The entertainment industry has done an amazing job of describing it as people stealing music,'' she said. "That's not what the case was about, certainly not to us. It was about stifling innovation. . . . I think we failed in getting that meaning out there.''
One of the foundation's greatest successes was its first case, representing Steve Jackson Games, a small game-book publisher in Texas that the Secret Service raided in 1990 in search of an illegally copied computer document. Nothing was found, but agents who seized the company's computers examined and erased every e-mail message on the electronic bulletin board system before returning the equipment, said Steele, a lawyer on the case.
A lawsuit resulted in damages awarded and the first court ruling requiring the government to get a warrant, based on evidence of wrongdoing, before reading any private e-mail, Steele said.
"The judge yelled at them. It was fun to be in the courtroom,'' she said.
Another early suit resulted in an important ruling by a San Francisco federal appeals court in 1999 defining computer software code as constitutionally protected speech and overturning government rules that prohibited a former Berkeley mathematician named Daniel Bernstein from distributing encryption software that scrambled electronic messages.
But the foundation has had limited success trying to poke holes in industry-sponsored laws that have fortified the rights of patent- and copyright-holders, even as technology has made it easier to produce duplicates and alternative versions of commercial products.
The foundation's chief nemesis has been the Digital Millennium Copyright Act of 1998, which included a rule prohibiting users of copyrighted products from bypassing codes or other measures installed to prevent piracy.
In practice, argued foundation attorney Fred von Lohmann, the rule has allowed owners of copyrights -- notably, distributors of commercial DVDs -- to "control the pace of innovation.''
"Make a backup copy of a DVD I own -- illegal. Excerpts of a movie (on DVD) to put in commentary Web sites or a school report -- illegal. You can't make copies of DVDs because you'd have to break the encryption,'' said von Lohmann, who has taken part in numerous lawsuits, mostly unsuccessful, challenging the use of the 1998 law.
The foundation has won cases against manufacturers of garage doors and laser printers that invoked the 1998 law to limit the sales of devices that would work with their products. Other rulings allowed two Bay Area men to publish software code that decrypts DVDs.
But by and large, von Lohmann said, the law has held up in the courts and the government's copyright office, which has repeatedly rejected proposals for more flexible regulations.
The same pattern is unfolding in the emerging field of digital television, said Steele, whose organization has attended meetings on international standards for copying and recording. It is trying to fight industry proposals to require anti-recording devices, but doesn't have much leverage, she said.
"There are new technologies we can flag as a potential threat,'' Steele said. "But it's very hard sometimes to translate our message to Mom and Pop.''
Stanford's Granick says the problem isn't insoluble.
"People may not understand what it means to decrypt a DVD,'' she said. "But people do understand why they want to skip the commercials.''
