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Vol. 31 No. 2 — March 2014

EFF was founded in 1990 in response to an outdated understanding of how a citizen’s digital civil liberties should be regarded by authorities, when they were regarded at all. In 1990, the Secret Service confiscated computers and copies of an upcoming book from pen-and-paper gaming company Steve Jackson Games. Secret Service agents were looking for a copy of a document leaked from a BellSouth computer that described how the emergency 911 system worked.

After Steve Jackson nearly lost his business because of a missed deadline, the Secret Service returned his computers, determining that the 911 system document was not on any of the computers. But when they examined the computers, Jackson and his employees discovered their electronic mail, which mostly came from nonemployees and was stored on the company’s bulletin board system (BBS), had been accessed and deleted.

At the same time, John Perry Barlow and Mitch Kapor found they had similar encounters with uninformed FBI agents sent to investigate alleged cybercrimes. They eventually founded EFF with financial support from Kapor, as well as from John Gilmore, an early employee of Sun Microsystems, Inc., and from Steve Wozniak, co-founder of Apple Computer (now Apple).

One of EFF’s first official acts upon its founding was to announce it would represent Steven Jackson Games and several of its BBS users in a lawsuit against the Secret Service. Steve Jackson Games, Inc. v. United States Secret Service established that law enforcement’s unwarranted seizure of BBSs, the precursor to modern email, was illegal and awarded damages to the plaintiff.

In many ways, the confusion toward technology and digital rights that spurred EFF into action still exists among some lawmakers. But EFF has grown to combat other, more disreputable, entities as well.

The Foundation Today

Since it first started more than 2 decades ago, EFF has progressed from a handful of concerned technologists willing to fund legal cases they saw as abusive to civil liberties to a team of policy analysts, activists, technologists, and lawyers able to take on the fight themselves.

Currently, EFF has about 50 employees, at least 15 of whom are lawyers, dedicated to protecting civil liberties online. Although most of the attorneys have specialized fields, many of them share common topics of interest, including free speech, civil liberties, intellectual property, privacy, and patent law. Nevertheless, some of the more specific roles stand out. For example, Julie Samuels is a senior staff attorney and the Mark Cuban chair to eliminate stupid patents.

The majority of EFF’s funding comes from individual donations large and small, says Corynne McSherry, intellectual property director. It is also supported by foundations that give grants for EFF’s work, as well as creative methods that take advantage of the group’s technologically inclined donor base. “There’s the group called the Humble Indie Bundle, a group of game developers, and they often run programs which end up benefiting us financially,” says McSherry. “They sell bundles of games, and a portion of the proceeds will go to EFF.”

To underscore how much the community contributes to the costly effort of advocating and working for digital rights, a 2011 blog post on EFF’s Deeplinks blog revealed a full 14% of the organization’s total revenue from that year came from the donations collected by sales of the Humble Indie Bundle alone.

Eye-Catching Cases

Some of the issues EFF is involved in are also the issues most likely to be at the top of a newsfeed—particularly its ongoing work challenging the National Security Agency (NSA) in its mass collection of phone metadata.

Alongside the American Civil Liberties Union, Greenpeace, reddit, and many others, EFF joined the coalition of groups that participated in The Day We Fight Back (thedaywefightback.org) on Feb. 11, 2014. In part a tribute to Aaron Swartz, the internet activist who committed suicide after he was targeted by authorities for mass downloading from the JSTOR archives, the supporting groups hosted a banner on their webpages urging visitors to contact their legislators to protest mass surveillance.

But the organization takes on plenty of other issues relevant to information professionals, even if those issues don’t always catch top headlines.

In one of the cases she’s currently working on, McSherry says, “[W]e are defending an organization called Public.Resource.Org, which is devoted to making the law available online for free in a way that’s usable and indexable for people.” The nonprofit organization, in its stated mission to make government information more accessible, sometimes runs afoul of the standards organizations that create the codes. Three of those standards-development organizations (SDOs)—the National Fire Protection Association; ASTM International; and the American Society of Heating, Refrigerating and Air-Conditioning Engineers—are suing Public.Resource.Org on the grounds of copyright infringement. McSherry says EFF has jumped in to defend the organizer of Public.Resource.Org, Carl Malamud, against the SDOs.

McSherry is also involved in a lawsuit defending Lawrence Lessig’s use of a “snippet of music” in a lecture the professor posted on YouTube. Lessig, a political activist and proponent of fewer restrictions on copyright and trademark, received a notice of copyright infringement under the Digital Millennium Copyright Act (DMCA) from a record label, and the video was subsequently brought down.

Lessig, along with EFF, is suing the company that invoked the DMCA on his video. Part of the motivation behind the lawsuit is to hold entities such as the one Lessig is suing responsible for the takedowns it demands under the DMCA. “It’s important because it’s very, very easy to abuse this particular area of law, and we think it’s extremely important to send a message to folks that they shouldn’t do that,” says McSherry. “And if they do that, they’re going to be held accountable for that.”

A Place in the History Books

In her 8 years with the organization, McSherry says one of the most important victories of EFF that she’s been involved in was the overall abandonment of digital rights management (DRM) in music. To restrict customers from freely copying music from CDs, music manufacturers often coupled various kinds of DRM software onto CDs along with the music customers intended to buy.

One of these groups, Sony BMG Music Entertainment, produced some CDs with DRM technology attached that did more than just restrict reproduction of music. The DRM tech also acted as a kind of rootkit, a sneaky form of malware designed to run undetected operations, sending Sony personal information about the user and creating security exploits in his computer that other, unrelated malware could take advantage of. The distinction between DRM and invasive software was so blurred at the time that Sony BMG’s president of global digital business, Thomas Hesse, said in an interview with NPR, “Most people, I think, don’t even know what a rootkit is, so why should they care about it?”

“[Y]ou would get advertisements whether you wanted to or not, and all of this wasn’t disclosed to consumers,” says McSherry. Two years after EFF sent an open letter to Sony BMG calling for the music giant to fix the problems and compensate those who were infected with the rootkit, the music group settled with affected users in a lawsuit brought by EFF.

McSherry says she’s glad the users were suitably compensated in the end, “but part of the impact is also maybe affecting the political conversation. And frankly, as a result of the rootkit scandal, which was very, very embarrassing for Sony, I think it really played a very important role in what subsequently happened: We don’t have copy protection in music anymore.”

Eventually, McSherry says, DRM in ebooks will share the same fate as DRM in music. But ebook publishers, as with music publishers, are going to need to learn the lesson the hard way. “The music industry didn’t give up DRM willy-nilly,” she says. “They thought it might work, and it took them, unfortunately, many years to figure that it really wasn’t the answer.” There will someday be enough complaints and challenges to the publishers, according to McSherry, that a nonrestrictive ebook publisher will be able to succeed in the marketplace.

The ebook scene was in an uproar in 2009 after Amazon pulled two books, George Orwell’s 1984 and Animal Farm, from the devices of Kindle users after discovering the publisher did not have the rights to sell the ebooks in the United States. Although users who bought the ebooks were fully compensated for the price they had paid, Amazon’s actions would prompt questions over the role a publisher can play after it has sold an ebook. Later that year, Amazon settled for $150,000 to a law firm and a student who lost his digital notes when the ebook version of 1984 was removed from his Kindle. Amazon promised not to modify or delete ebooks in this manner again, with certain exceptions.

Trade Frontiers

Librarians tend to understand the work that EFF does, says McSherry, but not everyone does. “I think a common misconception about the Electronic Frontier Foundation and some of the folks that we work with is that we are sort of opposed to all copyright, and all patents, and all trademarks, or something like that, which is silly, and simply a caricature, when what we really are committed to is making sure that our intellectual property laws serve their constitutional purpose,” she says.

Those in EFF view themselves as aligned with artists, creators, and innovators in the intellectual property realm, McSherry says. And in doing so, they tend to be on the opposite side of the table from traditional, major content industries.

Likewise, EFF has no qualms with returning to its roots and tangling with the U.S. government in cases in which the nonprofit believes that the government has overstretched its authority. The foundation is pushing hard to prevent the Obama administration from passing fast-track negotiating authority for the Trans-Pacific Partnership (TPP), an international free-trade agreement between 12 Pacific Rim nations. McSherry calls the treaty “policy laundering.”

“Folks located in the U.S. can’t get a law passed here, through a normal democratic process, so they turn to the trade agreement process and try to get it enacted in that context,” she says. “Then they come back to the United States and say, ‘OK, well, we made this agreement, so we’re stuck with it now.’”

Trade agreements such as the TPP are normally negotiated in secret. At issue is a draft text of a chapter released by WikiLeaks focused on changing intellectual property rights, including an increase beyond 20 years for medical patents and harsh anti-hacking measures for copyright protection. If the agreement is fast-tracked, Congress will be able to approve or disapprove of the entire treaty but will be unable to modify, amend, or filibuster it.

The leaked chapters worry McSherry: “There is something fundamentally strange about including intellectual property in a trade agreement, because intellectual property always implicates speech.” These rules, she explains, are going to impact the public’s ability to speak online. What’s more, it will force the other countries involved in the agreement to accept intellectual property rules she says already don’t work well here.

The issue is quickly picking up steam. While it hasn’t yet gained much mainstream media coverage, the third result on a Google search for Trans-Pacific Partnership returns EFF’s webpage on the subject (eff.org/issues/tpp), and a search for TPP returns that same page first. And in the time that the EFF Twitter account has been tweeting about its opposition to the TPP, @EFF has gained an additional 10,000 followers (up to a total of 169,167 on Feb. 5, 2014.)

McSherry hopes the public will learn about the agreement and work to stop it before fast-track authority passes. “There are certainly lots and lots of people who have no idea they should care about TPP, but librarians could help them know that they should care,” she says.