Thursday, November 8, 1990
The Electronic Frontier Foundation was started by a visit from the FBI. In late April of 1990, I got a call from Special Agent Richard Baxter of the Federal Bureau of Investigation. He asked if he could come by the next day and discuss a certain investigation with me. His unwillingness to discuss its nature over the phone left me with a sense of global guilt, but I figured turning him down would probably send the wrong signal.
On Mayday, he drove to Pinedale, Wyoming, a cow town 100 miles north of his Rock Springs office (where he ordinarily investigates livestock theft and other regional crimes). He brought with him a thick stack of documents from the San Francisco office and a profound confusion about their contents.
He had been sent to find out if I might be a member of the NuPromtheus League, a dread band of info-terrorists (or maybe just a disaffected former Apple employee) who had stolen and wantonly distributed source code normally used in the Macintosh ROMs. Agent Baxter's errand was complicated by a fairly complete unfamiliarity with computer technology. I realized right away that before I could demonstrate my innocence, I would first have to explain to him what guilt might be.
The three hours I passed doing this were surreal for both of us. Whatever this source code stuff was, and whatever it was that happened to it, had none of the cozy familiarity of a few yearling steers headed across the Wyoming border in the wrong stock truck.
What little he did know, thanks to the San Francisco office, was also pretty well out of kilter. He had been told, for example, that Autodesk, the publisher of AutoCAD, was a major Star Wars defense contractor and that its CEO was none other than John Draper, the infamous phone phreak also known as Cap'n Crunch. As soon as I quit laughing, I started to worry.
I realized in the course of this interview that I was seeing, in microcosm, the entire law enforcement structure of the United States. Agent Baxter was hardly alone in his puzzlement about the legal, technical, and metaphorical nature of datacrime.
I also found in his struggles a framework for understanding a series of recent Secret Service raids on some young hackers I'd met in a Harper's magazine forum on computers and freedom. And it occurred to me that this might be the beginning of a great paroxysm of governmental confusion during which everyone's liberties would become at risk.
When Agent Baxter had gone, I wrote an account of his visit and placed it on the WELL, a computer BBS in Sausalito which is digital home to a large collection of technically hip folks, including Mitch Kapor, the father of Lotus 1-2-3.
Turns out Mitch had also been visited by the FBI, owing to his having unaccountably received of one of the source code disks which NuPrometheus scattered around. Mitch's experience had been as dreamlike as mine. He had, in fact, filed the whole thing under General Inexplicability until he read my tale on the WELL. Now he had enough corroboration for his own strange sense of alarm to begin acting on it.
Several days later, he found his bizjet about to fly over Wyoming on its way to San Francisco. He called me from somewhere over South Dakota and asked if he might literally drop in for a chat about Agent Baxter and related matters.
So, while a late spring snow storm swirled outside my office, we spent several hours hatching what became the Electronic Frontier Foundation. I told him about the sweep of Secret Service raids which had taken place several months before and their apparent disregard for the Bill of Rights.
Alarmed, he gave me the phone number of Harvey Silverglate, whose willingness to champion unpopular causes was demonstrated by his current defense of Leona Helmsley. He said that Harvey would probably know if this were as bad as it was starting to sound. He also said that he would be willing to pay the bills that generally start to appear whenever you call a lawyer.
I finally found Harvey in the New York offices of Rabinowitz, Boudin, Standard, Krinsky and Lieberman, a firm whose long list of successfully defended liberties includes the Pentagon Papers case. I told him and Eric Lieberman what I knew about recent government flailings against cybercrime. They were even less sanguine than I had been.
The next day a trio code-named Acid Phreak, Phiber Optik, and Scorpion entered the walnut-panelled chambers of Rabinowitz, Boudin and told their tales to a young lawyer there named Terry Gross. While EFF as a formal organization would not exist for another two months, its legal arm was already flexing its muscle.
A few days later I received a phone call from the technology writer for the Washington Post. He was interested in following up on the Harper's forum, and knew nothing of Mitch's and my joint endeavors. I filled him in, hoping to expose the Secret Service. Several days later, the Post published the first of many newspaper stories, all of which could have shared the same headline: LOTUS FOUNDER DEFENDS HACKERS.
While this was an irritating misrepresentation...we were more interested in defending the Constitution than any digital miscreants...the publicity produced a couple of major supporters: Steve Wozniak, who called and offered an unlimited match to Mitch's contributions, and John Gilmore (Sun Microsystems employee #5) who e-mailed me a six figure offer of support.
Meanwhile, the list of apparent outrages lengthened. We learned about an Austin role-playing games publisher named Steve Jackson whose office equipment had been confiscated by the Secret Service in an apparent effort to restrain his publication of a game called Cyberpunk which they thought, with ludicrous inaccuracy, to be "a handbook for computer crime.
All over the country computer bulletins being confiscated, undelivered e-mail and all. A Secret Service dragnet called Operation Sundevil seized more than 40 computers and 23,000 data disks from teenagers in 14 American cities, using levels of force and terror which would have been more appropriate to the apprehension of urban guerrillas than barely post-pubescent computer nerds.
And there was the Craig Neidorf case. Neidorf, also known by the nom de crack Knight Lightning, had published an internal BellSouth document in his electronic magazine Phrack. For this constitutionally protected act, Neidorf was being charged with interstate transport of stolen property with a possible sentence of 60 years in jail and a $122,000 in fines.
I wrote a piece about these events called Crime & Puzzlement. Although I did so at the request of the Whole Earth Review...it made its first print appearance in the Fall 1990 issue of WER...I "published" it on the Net in June and was astonished by the response. It was like planting a fence-post and discovering that the "ground" into which you've driven it is actually the back of a giant animal which quivers and heaves at the irritation.
By July, I was receiving up to 100 e-mail messages a day. They came from all over the planet and expressed nearly universal indignation. I began to experience datashock, but I also realized that Mitch and I were not alone in our concerns. We had struck a chord.
In Cambridge, Mitch was having something like the same experience. Since the Washington Post story, he found himself bathed in media glare. However, the more he learned about ambiguous nature of law in Cyberspace, the more of his considerable intellectual and financial resources he became willing to devote to the subject.
In late June, Mitch and I threw several dinners in San Francisco, to which we invited major figures from the computer industry. We weren't surprised to learn than many of them had exploits in their past which, undertaken today, would arouse plenty of Secret Service interest. It appeared possible that one side-effect of current government practices might be the elimination of the next generation of computer entrepreneurs and digital designers.
It also became clear that we were dealing with a set of problems which was a great deal more complex and far-reaching than a few cases of governmental confusion. The actions of the FBI and Secret Service were symptoms of a growing social crisis: Future Shock. America was entering the Information Age with neither laws nor metaphors for the appropriate protection and conveyance of information itself.
We realized that our legal actions on behalf of a few teen-age crackers would go on indefinitely without much result unless something were done to ease social tensions along the electronic frontier. The real task at hand was the civilization of Cyberspace. Such an undertaking would require more juice and stamina than two men could muster, even amplified by the Net and a solid financial supply. We would need some kind of organizational identity.
With this in mind, we hired a press coordinator, Cathy Cook (who had formerly done PR for Steve Jobs), set a squad of lawyers to work on investigating the proper organizational tax status, and, over a San Francisco dinner with Stewart Brand, Nat Goldhaber, Jaron Lanier, and Chuck Blanchard, we selected a name and defined a mission.
We announced the formation of the Electronic Frontier Foundation at the National Press Club on July 10. Mitch and I were joined for the announcement by Harvey Silverglate, Terry Gross, and Steve Jackson.
We were also joined by Marc Rotenberg of the Washington office of Computer Professionals for Social Responsibility. One of our first official acts had been to grant that organization $275,000 for a project on computing and civil liberties. CPSR would keep a wary eye on developments "inside the Beltway" and work in conjunction with congressional staffers to see that any legislation dealing with access to information was sensibly drafted.
While in Washington, we also took inventory of the terrain, meeting with congressional staffers, the Washington civil liberties establishment, and officials from the Library of Congress and the White House. The area to be covered, from intellectual property to telecommunications policy to law enforcement technique, was daunting, as were the ambient levels of confusion and indifference.
We also generated an enormous amount of press. And it became apparent that not everyone was persuaded of our cause. Business Week called Mitch naive for his willingness to believe that computer crackers were somehow less dangerous that drug kingpins. Various burghers of the computer establishment, ranging from the executive director of the Software Publishers Association to a columnist for ComputerWorld, called us fools at best and, more likely, dangerous fools.
The Wall Street Journal printed a particularly hysterical piece which alleged that the document Craig Neidorf (into whose case we had entered a supporting amicus brief) had published was a computer virus capable of bringing down the emergency phone system for the entire country. In fact, the text file which Neidorf distributed dealt with the bureaucratic procedures of 911 administration in the BellSouth region and contained nothing which could be used to crack a system. Indeed, it contained nothing which could not be easily obtained through by legal means.
We persevered. Our first major break came in late July. Thanks in part to the expertise of John Nagel, a witness we introduced to Neidorf's lawyer, the government was forced to abandon its case against Neidorf after 4 days in Chicago's Federal Court.
Although our briefs supporting Neidorf's activities under the 1st Amendment were not admitted, it became apparent, before such loftier matters could even be broached, that the Secret Service had indicted him with no clear understanding of the purpose or availability of the document he had distributed. Like Agent Baxter, they knew too little to critically examine the misinformation they had been given by the corporate masters, in this case, officials at Bellcore.
Following the resolution of the Neidorf case, and, to some extent because of it, skepticism of EFF has moderated considerably. If anything, the most recent press accounts of our activities have been almost fulsome in their praise. Recent favorable coverage has appeared in the New York Times, The Economist, Infoworld, Information Week, PCweek, and Boston Magazine.
Since July, we have been absurdly busy on numerous fronts: We've worked on raising public awareness of the issues at stake. We are organizing legal responses to the original and continuing intemperance of law enforcement. We have worked on the political front, developing and lobbying for rational computer security legislation. We have started to create a network of interested experts on computer security, intellectual property, telecommunications policy, and international information rights. And lately we've been attending to the organizational demands of the non-profit equivalent of a hyper-successful computer startup.
The following is a cursory digest of these activities.
We believe that critical to taming the electronic frontier is creating a sense of the stakes among both the computer literate and the general public. We have combined public appearances, that incredibly blunt instrument, the Media, and electronic interaction to cover a lot of consciousness since July. It's a good thing Mitch has that airplane.
We have continued to build a constituency within the computing community, convening small gatherings of computer professionals from across the hacker/suit spectrum. Mitch, Harvey, and I have also addressed larger forums such as the CPSR Annual Meeting, the International Information Integrity Institute meeting on computer security, the Computer Science and Telecommunications Board of the National Academy of Science and Engineering, Stewart Alsop's Agenda '91, MacHack, the Boston Computer Society, Ars Electronica, the Kennedy School of Government, and numerous others.
We have done more press interviews and call-in radio shows than I can remember. Woz appeared on Good Morning America with Assistant Arizona AG (and Operation Sundevil architect) Gail Thackery. EFF has appeared prominently in national publications ranging from Newsweek to Spin, most of the major daily newspapers, and nearly every computer trade publication from Information Week to Mondo 2000. A writer for The New York Times Magazine is currently at work on a major piece about EFF.
I have agreed to write a regular column on the Electronic Frontier for the Communications of the ACM. And Mitch and I have been invited to submit pieces to Scientific American, Issues in Science and Technology, and Whole Earth Review.
We set up two Usenet newsgroups, comp.org.eff.news and comp.org.eff.talk. eff.news is moderated by Glenn Tenney and contains a selection of the best articles posted in eff.talk. We began an EFF forum on the WELL (which soon became among the most active conferences there, right behind Sex and the Grateful Dead). We are setting up our own USENET node on the Net, eff.org, with a Sun IV in our Cambridge office and the guidance of volunteer sysop Spike Ilacqua. When fully operational, the machine will run the Caucus conferencing system and should have a 56kb Internet connection. Finally, we are investigating the possibility of setting up an EFF conference on Compuserve.
We have read and personally generated over 4 megabytes of e-mail since June. Lately, Jef Poskanzer has been maintaining the EFF's electronic mailing list, which is now approaching 1000 names. Information distributed through eff.news is also sent to the mailing list.
Concerned that our approach is a little too electronic, we are now trying to connect more directly with folks who might be interested in EFF but who are not online. Our newsletter, the first edition of which you now have in your hands, is part of that effort. Primarily the work of Rick Doherty and Dan Sokol, we intend to publish The EFFector a minimum of 4 times a year.
Finally, we are working with Jim Warren and a variety of groups to organize a major international conference on Communications, Privacy, and Freedom to be held in San Francisco in March of 1991. This gathering is being designed to include citizens who are not technologically sophisticated.
In the beginning, we had thought that most of our activities would either take place in court or on the way there. While this hasn't quite been the case, legal matters still require much of our time and by far the lion's share of our expenditures.
Since the Neidorf case, most of our legal activity has been, of necessity, low-profile. It is not strategically sound to announce lawsuits well in advance of filing them, and, while there remains a lot of dubiously confiscated equipment in constabulary storage, we are not going to jeopardize our ends by telegraphing their means. We are currently preparing cases on a variety of fronts, proceeding at the deliberate pace characteristic of both geology and the law.
We remain primarily interested in those cases in which constitutional issues are at stake. We are investigating incidents in which the First Amendment rights of computer users may have been abridged, where searches and seizures appear to have exceeded the authority of the Fourth Amendment, where the government seems to have violated the Electronic Communications Privacy Act, and where warrants have been issued with insufficient cause. There is no shortage of legal opportunities here. The problem is picking the best ones.
We are still working with two law firms, Silverglate and Good of Boston and Rabinowitz, Boudin, Standard, Krinsky, and Lieberman of New York. We also have dealings with Katten, Muchin & Zavis, the Chicago firm of Craig Neidorf's attorney, Sheldon Zenner, and are considering offers of pro bono assistance from a number of other firms around the country.
We recently hired Mike Godwin, a freshly minted Texas lawyer and USENET adept, to sort through the factual and legal details of the many cases we are being asked to intervene in. In his short time with us, he has investigated several cases to determine their fit with EFF's constitutional mission, their winnability, and their likelihood of producing clear legal precedent.
We have a conference call of the EFF Legal Committee every other Wednesday to discuss the current state of our cases and any new possibilities we might wish to take on. The Legal Committee includes Mitch, Mike Godwin, Harvey Silverglate, Sharon Beckman (of Silverglate & Good), Terry Gross (of Rabinowitz, Boudin), and myself. We also have a private conference on the WELL to distribute briefs, documents, and other legal information among the members of the committee.
Mike Godwin is also EFF's liaison with a committee of the American Bar Association which is investigating government actions in Operation Sundevil. Chaired by Judge William McMahon of Ohio, the committee is devising ABA guidelines for computer searches and seizures. EFF will have an important role in establishing the committee's recommendations.
The Art of the Possible
Despite the patience it requires, the political process offers many opportunities to pursue EFF's agenda. We have been working on two different fronts to promote government rationality toward computer use, in Washington, where we are working closely with the CPSR Civil Liberties and Computing Project which we funded, and in Massachusetts where we have been successful in developing model legislation.
CPSR, through the able efforts of Marc Rotenberg, has filed a lawsuit in federal district court in the District of Columbia to obtain information
from the FBI about the monitoring of computer bulletin boards. This follows similar efforts which forced the Treasury Department to admit that the Secret Service was in fact monitoring BBS's.
Marc also testified before the Subcommittee on Technology and Law of the Senate Judiciary Committee on S. 2476, the Computer Abuse Amendments Act of 1990. CPSR supported the proposed addition of a recklessness misdemeanor provision, calling attention to problems surrounding Operation Sun Devil and the civil liberties issues raised by the investigation of computer crime. The testimony was well received and widely reported in the press, but Congress adjourned before passing the amendments.
In Massachusetts, we headed off a misguided computer crime bill which had made it all the way to the desk of Governor Dukakis. Not only did we persuade the Governor not to sign it, we organized an effort to rewrite the bill for re-submission to the Massachusetts Legislature.
Sharon Beckman of Silverglate and Good drafted much of the new legislation, which, if it passes, will serve as a model law for other states to emulate. The new bill draws a clear distinction between computer trespass and actual malice, proposing appropriate penalties for each. It also instructs law enforcement agencies to be aware of the constitutional issues involved in the investigation of computer crime.
This phrase has always sounded like an oxymoron to me. "Property" seems to imply something more tangible than the mysterious stuff to which the term applies, and it is from this ambiguity that arises much of the difficulty along the electronic frontier. Just as limited bandwidth was the excuse for applying censorship to broadcast media, it appears that the zealous protection of intellectual property presents the greatest threat to free digital expression.
For this reason, the definition and regulation of intellectual property is a matter of great concern to EFF. However, we recognize that the established canon of copyright and patent law is so fundamentally inadequate to the demands of the Information Age that any effort to made a significant difference in this area could consume all of EFF's resources.
Nevertheless, both Mitch and I intend to devote a lot of our personal time to this issue. Mitch is especially well situated to make a difference. As the author of the most successful (as well the most pirated) piece of software in history, he has an important and credible voice amid the babble of obsolete legalisms which surrounds the discussion of intellectual property.
Marc Rotenberg is also working in this area. He attended the first meeting of the Office of Technology Assessment panel on intellectual property. Marc recommended that the OTA give careful consideration to the public interest issues that might be raised by various forms of intellectual property protection. The OTA has agreed to host a workshop on this topic and has asked CPSR to prepare a short report.
Sometimes it seems as if all of humanity is engaged in a Great Work...which I imagine to be the hard-wiring of human consciousness. It is as if we must literally connect ourselves electronically before we can appreciate the connections which have always existed.
As exalted as such an undertaking might sound, the actual wiring process is as tedious as any endeavor I can imagine. In addition to building hard infrastructure...fiber optic cabling, link stations, and microwave towers...the policy process surrounding telecommunications and information delivery is arcane and convoluted beyond ability of any but the most dedicated student to understand it. As a consequence, those large institutions with a clear financial stake are the only entities which have taken the trouble.
This leaves the average citizen with no voice in the some of the most important decisions about how his future will be designed. Fortunately, Mitch is also willing to take these issues on. Working with Jerry Berman of the ACLU, Mitch and the EFF intend to create an "information consumers communications policy forum" to bring together the Baby Bells, AT&T, other telcos, the FCC, newspaper publishers, online information services, and other stakeholders to discuss how their vision of the future of the Net serves the public interest.
Mitch is also meeting with Net hackers and visionaries to begin to develop a sense of where we want to go and how we might get there. His own vision: "a reliable digital network available to everyone with no restrictions on content and policies which promote information entrepreneurship." He will be devoting a lot of his time to this issue. Again, EFF will support his efforts to the extent it can do so without diminishing its effectiveness on the civil liberties front.
When we first defined the mission of the Electronic Frontier Foundation, we saw our task as assuring the application of the U.S. Constitution to digital media. And this remains much of what we are about.
However, information has little natural regard for national borders or local ordinances. Cyberspace is transnational. During the tsunami of e-mail which Crime & Puzzlement elicited, there were many items from foreign countries. Their authors wanted to know how they could protect or establish their rights of free expression. And I had no idea what to tell them.
The question arose again at Esther Dyson's recent East-West Technology Conference in Budapest which Mitch and I attended. EFF was well-known among the Soviets at this meeting, some of whom were already involved in drafting what they called an Information Bill of Rights. (One young Moscow programmer had managed to hack together an Internet connection through Finland in order to contact me.)
Like intellectual property and telecom policy, the development of international principles of free digital speech is a large angel to wrestle with. We will have to be careful not to allow this immense task to divert EFF from its specific legal agenda. But neither can we ignore the fact that Cyberspace is hardly an American territory.
The Electronic Frontier Foundation grew from an effort to fight a specific legal brushfire into a full-fledged Cause much faster than we could have imagined. And, like any explosive start-up, it spends a lot of time playing catch-up.
Electronically amplified, Mitch and I were able to personally conduct much of EFF's business in the first few months of operations. But gradually we had to confront the fact that while the Net is very broad, it is also quite shallow. Without even a sense of their physical location, we have been unable to marshal the hundreds of people who have e-mailed us with their volunteered services. Also, we found ourselves administering a significant cash-flow in both donations and expenditures. (By year's end, EFF will have spent around $220,000. Our tentative 1991 budget predicts expenses of almost half a million.)
So, despite a mutual terror of bureaucracy and organizational sclerosis, we have started to adopt some institutional trappings.
First, in order to satisfy the requirements for a 501c3 tax status (which we should have in about six months), we found that we needed something more substantial than two guys with modems. Thus, on October 9, we held our first official board meeting and formally elected Stewart Brand, Steve Wozniak, and John Gilmore to join us as board members.
And we have started to take on staff. In addition to the affore-mentioned Mike Godwin, we have contracted Judith Nies to come in to the office once a week and work on correspondence the requests for information which come in via the telephone and mail.
We have also advertised for an Executive Director (see notice elsewhere in this issue). We hope to hire this individual soon and expect him/her to attend to the many administrative details which have begun to gobble our time. (Mitch has been especially swamped.) Upon his/her arrival, we will be able to devise policies regarding membership, coordination of volunteers, local chapters, and other organizational dimensions.
Finally, after many months as eff@eff.orgwe have established a location in the material world. Our office is at:
The Electronic Frontier Foundation
155 Second St.
Cambridge, MA 02141
(617)864-0665
(617)864-0866 fax
We are determined that EFF will remain an agile, swift-moving sort of outfit. We will adopt any new bureaucratic manifestations with the greatest skepticism. But we are being bombarded with many legitimate requests for assistance, advice, and information. In order to respond rapidly and appropriately, the Electronic Frontier Foundation has had to bec ome an institution. One method by which we hope to maintain organizational lightness involves keeping a clear distinction between strategy and tactics.
On the strategic level, EFF has a very broad mission involving such amorphous endeavors as defining intellectual property, helping establish a transnational culture of information, designing telecommunications policy, sponsoring humane software design... civilizing Cyberspace. With an appropriate sense of their limitations, the board members will remain responsible for these matters.
This will prevent the staff's losing tactical focus on more tangible action items like litigation, political action, communicating through the press and across the Net, and organizational care and feeding.
The problem with history is that it keeps happening. Today, as I was working on this EFF mini-biography, I learned that Mitch has just had his fingerprints subpoenaed by the FBI. Turns out they are now examining the NuPrometheus distribution disks for fingerprints and want to be able to sort his out. Or, perhaps, search for their appearance on other disks...
So the Wheels of Justice grind blindly on. And we will go on trying to prevent anyone's being ground up in them.
