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Freedom Fighters of the Digital World



January 13, 2002



At a Time When Many of Us Are Gung-Ho About Sacrificing Personal Freedoms to Combat Terror, the Electronic Frontier Foundation Just Wants to Say No.

By SCOTT HARRIS, Scott Harris last wrote for the magazine for the December 1999 millennium issue




We're bombing Afghanistan, anthrax is in the mail, and all across America it looks like Stars and Stripes forever. It is the evening of Oct. 11, one month into the war on terrorism, and Congress is cooking up something that will be called the USA Patriot Act. This sweeping law includes a dramatic expansion of Internet surveillance, unprecedented sharing of information between government agencies, stiffer penalties for computer crimes and greater power to detain noncitizens.



For many of us, that's just fine. If personal freedoms are to be sacrificed, polls show that a majority of Americans aren't just willing, they're gung-ho. Urgent times, urgent measures. Judged against the horror of Sept. 11 and now our daily dread--those invisible spores, the occasional drive across a bridge--what's a little electronic eavesdropping among patriotic Americans anyway?



But inside a half-empty auditorium at the San Francisco Public Library, four civil liberties attorneys have come together on a panel to challenge the new conventional wisdom. The audience is up for the challenge, and when the floor is open for questions, a slender man with long wispy hair and a scraggly beard takes a turn at the mike. He doesn't give his name, but many here recognize John Gilmore, one of the brains behind Sun Microsystems and one of the guiding spirits of the Electronic Frontier Foundation, perhaps America's most technologically astute civil liberties group--and no doubt one of the funkiest. In a soft voice, the computer scientist explains what is troubling him: the scarcity of news surrounding all those people, then numbering about 500, who have been rounded up in the terrorism investigation. Who are they? Why are they being held? Does anybody know anything? Who's representing these people and trying to get them out?



The panelists' silence leaves Gilmore exasperated.



Are all the civil rights organizations afraid to step up to defend potential terrorists?



Say this about the leaders of the Electronic Frontier Foundation: They are not afraid to speak their minds. They are not afraid to push back.



sometimes described as an american civil liberties union for nerds, the Electronic Frontier Foundation was launched in 1990 by an illustrious group of Internet pioneers troubled by what they considered to be the government's clueless, ham-handed efforts to police the new medium. Nobody was thinking about extending the Constitution into cyberspace, recalls co-founder Mitchell Kapor, the wealthy Lotus software mogul. Who but computer scientists would argue that binary code is a form of speech entitled to First Amendment protection?



To high-tech pros and policy wonks, the EFF is well-known for its opposition to the regulation of encryption. Hollywood and the publishing industry know it as the loyal opposition in battles over digital copy law, which the EFF believes is so restrictive that it frustrates innovation. What we're working on is really cutting-edge stuff to protect the rights of everyone, even if they don't realize the significance of it, says EFF executive director Shari Steele.



Non-nerds may more easily grasp the EFF's unyielding interpretation of First Amendment freedoms and the Fourth Amendment protection against unreasonable searches. It has poured resources into protecting the rights of scientists and journalists to publish online. It defends the right to make anonymous postings online, insofar as the posters honor laws governing libel and trade secrets. In defending its principles, the EFF may seem to casual observers to be bent on making the world a safer place for computer hackers, copyright pirates, cowardly commentators and people who think happiness is a warm Aibo robot puppy.



(When Sony complained that Web sites set up by Aibo owners to share programming tricks were infringing on its copyright, the EFF took up the hobbyists' cause.) But the organization now sees itself on the front line of the debate over security in the age of terror, and it is only too happy to have its dissenting voice heard amid the clamor.



Its assessment of the USA Patriot Act (an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) has been especially critical. Terrorism, says EFF legal director Cindy Cohn, has been used to justify a law enforcement power grab that threatens fundamental freedoms. Had the same surveillance and wiretap laws existed a year ago, she argues, they would not have prevented the terror attacks on Sept. 11--and now Americans are shouldering the burden of intelligence failures of federal authorities.



The civil liberties of ordinary Americans have taken a tremendous blow, especially in the right to privacy, Cohn says in a 20-page legal analysis of the Internet and computer crime sections of the Patriot Act that was distributed to more than 100 civil liberties groups. Be careful what you put in that Google search. The government may now spy on Web surfing of innocent Americans . . . by merely telling a judge anywhere in the U.S. that the spying could lead to information that is 'relevant' to an ongoing criminal investigation.



(The judge may not reject the request; his role is simply to issue and record it.)



What makes this form of surveillance more worrisome, cyber libertarians say, is how the Internet links people in ways that the non-virtual world does not. Ask yourself: Have you ever received e-mail from a terror suspect? Ever been on the same listserv or in the same chat room? Book the same flight, frequent the same Web site? Not only would you not know, Cohn says, but you also wouldn't know whether the feds had snooped on your Web activities and compiled a secret dossier. Not only could authorities abuse such information, she suggests, but so could rogue agents.



Americans, Cohn says, wouldn't tolerate such scrutiny of postal or telephone communications, or library research. What makes the electronic realm different? The EFF believes its role is to sound the public alarm and watch for abuses by authorities that need to be challenged in court.



Indeed, libertarians from the left and right see the expanded Internet surveillance as part of an authoritarian lurch that includes President Bush's calls for military tribunals conducted of noncitizens accused of terrorism; the dragnet that led to detentions of 1,400 individuals, only a small number now thought to have suspicious links to the hijackers; and the Justice Department's efforts to interview 5,000 men, most of whom are Muslim.



Libertarians get a sense of deja vu listening to Atty. Gen. John Ashcroft portray opposition to such measures as aiding the enemy. They recall how dissidents were rounded up in the buildup toward World War I, Japanese Americans were interned during World War II and a Communist witch hunt ruined lives in the Cold War.



Says Gilmore: There's a McCarthy era every 20 or 30 years. Only now, digital technology has raised the stakes. J. Edgar Hoover would drool over the tools that now exist to gather, transmit, store and interpret information, and the technology is only getting more powerful. Broad Internet surveillance, some civil libertarians say, could be a first step toward the creation of a vast, permanent digital dragnet. Says Brad Templeton, a 41-year-old Internet entrepreneur and the EFF's chairman: I sit in fear of the next attack not only because of who it might hurt but because of where it will take this debate.



what templeton fears is something many americans would welcome. Imagine a nationwide high-tech security system as a fixed defense not only against terrorism but all sorts of criminal behavior. The high-tech fix could take many forms. A new generation of mobile products--from cars to cell phones to firearms--could be equipped with a kind of super-LoJack transponder linking Global Positioning System satellites to help authorities locate stolen goods and suspects. A national ID system using smart cards embedded with microchips carrying digitized personal data, many argue, could dramatically strengthen identity-verification practices. Airport security could employ advanced X-ray screening that looks through clothes.



Privacy concerns pose a political obstacle to such technologies, but momentum is gathering behind another powerful idea: the use of biometric face-recognition software to augment security cameras that are already commonplace in many private and public places. When Wall Street reopened after Sept. 11 with a deep swoon, the rocketing exceptions were biometrics developers such as Viisage Technology, Visionics and Imagis. The software makes a face print based on a measurement of features and compares it to a database of images. A Visionics system was tested at the 2000 Super Bowl in Tampa Bay, and company officials have proposed such a system for Reagan National Airport in Washington, D.C. On Oct. 31, Viisage's system became the first to be used in an airport, capturing images of travelers at Fresno Yosemite International shortly before they pass through metal detectors. Whenever the software suggests that an individual resembles a subject in the database, security is alerted. Tom Colastoti, Viisage's chief executive officer, says most false positives are quickly resolved. And biometrics, he adds, should minimize racial profiling.



Most law-abiding people, Colastoti says, would consider face-recognition capabilities helpful. Travelers already have their carry-on bags X-rayed and are often searched as they pass through metal detectors, which frequently buzz and trigger a more thorough search with a hand-held metal detector. After all of that, Colastoti says, People are going to tell me having your face scanned in a nanosecond is an invasion of privacy? I don't get it. A lot of people don't get it. People with something to hide are the ones who need 'privacy' the most, Times columnist John Balzar wrote last November. Polls suggest that such reasoning has become more common since Sept. 11. It's insidiously hard to argue with that, Templeton allows. But if we are under surveillance, we are less free. We censor ourselves.



Just look at how the political climate has already censored us by stifling dissent, he says. My little phrase has been that 'America speaking with one voice is un-American.' Just because I'm paranoid. Type that phrase into the Google search engine and, before long, you'll be under the impression that techies simply aren't the trusting sort. You'll surf sites put up by computer pros who recommend encryption software such as PGP (Pretty Good Privacy). You, too, can mask your e-mail from, say, your boss, your staff, your spouse, your children, maybe your government--which is no guarantee that the mask won't get ripped off. Even before Sept. 11, many techies subscribed to another old one-liner: If you're not paranoid, you just haven't been paying attention.



The fondness that techies have for cryptology reflects a dynamic of love and fear that is very much at the root of the Electronic Frontier Foundation. The love is reflected in the utopian view of cyberspace shared by Gilmore and others who embrace the Internet Age mantra, Information wants to be free.



In the early days, the Net was free, says computer scientist Dave Farber, a 67-year-old University of Pennsylvania professor. An EFF board member since the mid-'90s, Farber has witnessed the evolution of the medium since 1968, when he first got on the Arpanet, the Internet's precursor that was developed by the Department of Defense and largely used in academia. It was an information barter economy. You gave things to people, they gave things to you. It was that way for a long time, until relatively recently . . . It was almost like the utopian socialism attitude of the '20s and '30s. The philosophical divide depends on when you came on the Net and what your motivations are.



As the Silicon Valley began its boom, the bohemians of cyberspace sometimes found each other at The Well, an online bulletin board community launched in 1985 by environmentalist Stewart Brand, founding editor of the Sausalito-based Whole Earth Catalog. The Well (which stands for Whole Earth 'Lectronic Link) had some interesting, brilliant, influential devotees who included Mitch Kapor and John Perry Barlow. Kapor was a disaffected Transcendental Meditation instructor whose search for enlightenment led him to computer science at MIT and the crafting of the Lotus 1-2-3 spreadsheet, the most popular application of the mid-'80s. When not running his Wyoming cattle ranch, EFF co-founder Barlow was penning lyrics for the Grateful Dead or writing philosophical musings about digital technology.



One day Kapor read an article that Barlow had posted on The Well describing a surreal encounter with an FBI agent he'd previously met after some cattle were rustled from his ranch. This time the agent was trying to figure out if Barlow was in cahoots with some outlaws who were either, as Barlow would later write, a dread band of info-terrorists, or possibly just a disgruntled Apple employee distributing source code. The agent's errand was complicated by a fairly complete unfamiliarity with computer technology. Kapor could relate; he too had been questioned by the FBI. The feds, he recalls, seemed incapable of distinguishing brainy kids fooling around on computers for kicks and knowledge--the real-world equivalent of trespassing and minor vandalism--from more serious criminals dealing in theft and espionage. On a cross-country flight in his business jet, Kapor phoned Barlow and detoured to the airport nearest Pinedale, Wyo. The next day, The Well heralded plans for what would become the Electronic Frontier Foundation.



John Gilmore was the first to sign on, kicking in a six-figure contribution and considerable energy. Steve Wozniak, co-founder of Apple Computers, wrote a hefty check. Stewart Brand joined the first board.



Five years before the ACLU handled its first Internet case, the EFF pioneered the field in a pair of landmark cases. The first involved Steve Jackson Games, a Texas-based company that had been raided by federal agents investigating hacking. The EFF brought a suit that established that e-mail is protected under the Electronic Communications Privacy Act. Law enforcement would be required to have a warrant describing each message or e-mail participant before the mail could be read. Later, the EFF successfully challenged the government's ban on the export of encryption on behalf of a mathematician who wanted to discuss cryptology research online. In that case, the court found that software code is protected as speech by the First Amendment.



Since then, the EFF has labored to shed the image that it is little more than a hacker defense fund. Today the foundation's seven-member board includes law professors Lawrence Lessig of Stanford University and Pamela Samuelson of UC Berkeley, recognized experts in technology law who help lend pragmatic ballast to the EFF. But the abiding presence of Barlow and Gilmore through EFF's sometimes rocky history has helped sustain the idyllic vision of cyberspace. Yeah, I'm a utopian, Barlow says. But I think I'm a relatively realistic utopian. I see no problem with aiming for the moon knowing you're not going to hit it.



This may help explain Barlow's provocative prophecy on Sept. 11. In an e-mail to about 1,000 friends and associates, he likened the attack on the World Trade Center and Pentagon to the Reichstag fire that provided the social opportunity for the Nazi takeover of Germany . . . Control freaks will dine on this day for the rest of our lives. He went on to write: And please, let us forgive those who committed these appalling crimes. If we hate them, we will become them. (This from a man who, as a Republican Party official in Wyoming, helped elect Dick Cheney to Congress.) Barlow was speaking for himself, not the EFF, which tends to be more diplomatic while making some, but not all, of the same general points.



At least Barlow hastened to note in his e-mail that he didn't think American authoritarians, unlike the Nazis who started the Reichstag fire, had a direct role in perpetrating this mind-blistering tragedy. But that, he says, didn't prevent plenty of ugly responses, including one death threat. Barlow laughs as he points out that the threat was just the sort of anonymous online speech that the EFF defends, at least in principle.



the electronic frontier Foundation's virtual headquarters is its Web site (www.eff.org), which its leaders boast is one of the most linked to on the Internet. It's physical quarters started in Boston, Kapor's base at the time. In 1992 it moved to Washington, D.C., to focus on lobbying, recruiting ACLU chief legislative counsel Jerry Berman as its new executive director and attracting financial support from high-tech corporations. But the Beltway culture and the pressure to compromise created turmoil. Berman departed in 1994 and launched the like-minded Center for Democracy and Technology. The difference is more style than substance, with CDT focusing on lobbying and building consensus on Internet issues from inside the political establishment, and the EFF trying to effect change through the courts. Berman took along some staff and corporate sponsors, which now include AOL Time Warner, AT&T, Intel, IBM and Microsoft. He suggests that the EFF focuses too narrowly on litigation as a means of influence. They're great in their space but they have to broaden their space. The EFF's pragmatists, Berman says, will follow the yellow brick road, and the yellow brick road will lead back to Washington.



In 1995, Kapor quit EFF's board (I was burned out, he says now) and the EFF moved to San Francisco, a countercultural fit next door to the Silicon Valley. A brick building in the heart of the Mission District that once served as a church supply store is now the home of EFF, a bustling dot-org living amid the ghosts of dead dot-coms. It is not a large operation, with an annual budget of less than $2 million, 15 employees and dozens of volunteers and interns, supported by 5,000 members. An American flag, such a common sight these days, is displayed above a staff member's desk. A closer look reveals that, instead of white stars, the blue field is arrayed with tiny corporate logos.



Mitch Kapor happens to be in the office this autumn day, becoming reengaged. He dropped by for a briefing from EFF attorneys on the anti-terror legislation, preparing for a soiree of high-tech potentates where security and privacy will be discussed. Yes, the law goes too far, Kapor says, and yes, he worries that billions could be wasted trying to build a digital dragnet. We need more people who speak Farsi, he says. I'll vote for secure cockpit doors.



This is an appeal civil libertarians are trying to make, saying there are smarter approaches to terrorism that won't cost billions and won't infringe on freedoms. Serious terrorists, they say, will be clever enough to slip through the dragnet while innocents are ensnared. But perhaps the more effective argument involves a bit of rhetorical flag waving. President Bush said they attacked us because we are a free society, EFF executive director Shari Steele says. If we give up our freedoms because of the attacks, they win. I mean, John Gilmore is saying in that half-empty auditorium in San Francisco, are civil rights organizations afraid to defend potential terrorists?



ACLU attorney Ann Brick musters a response. The government is not releasing names, and in a way that's the good news and the bad news. Innocent people won't be tainted by the hint of suspicion, she says, but the secrecy means no one knows who they are or why they're being held.



Every war has its Catch-22s. Today's paradox is this: How can a society based on freedom protect itself by sacrificing liberties? But how can it protect itself without such sacrifices?



On this night, Brick seeks out John Gilmore afterward to thank him for his question. Secrecy, they agree, is a police-state tactic that needs to be challenged. Gilmore takes Brick's card and offers help: If it takes money, I'll send money.



Later Gilmore smiles when he is asked if he thinks the EFF's work is more vital than ever before. No, not really, he says. What we've been doing has been needed all along. You always need the Constitution. Right?



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