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.
Shari Steele of the Electronic Frontier Foundation insists the organization is pro-competition. (Photo: San Francisco Chronicle / Lea Suzuki)
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"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.
"Their first instinct is to mistrust corporations, organizations competing
in the market, to not have faith that competition will solve problems,'' said
Patrick Ross, senior fellow at the Progress and Freedom Foundation, a
pro-free-market, pro-copyright think tank in Washington, D.C.
"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.''
©2006 San Francisco Chronicle
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