The Electronic Frontier Foundation: Circumventing the Lock

“Every new technology has required a battle to ensure that it remains useful to the people that want to put it to political purposes and organizing purposes and, frankly, who just want to be able to use it.” Cindy Cohn spoke at the University of San Francisco. Her speech, Padlocking the Net is the first lecture of the Digital Democracy series provided by the Davies Forum.

Cindy Cohn is the Legal Director of the Electronic Frontier Foundation. She is responsible for overseeing the EFF’s overall legal strategy. The EFF has focused in past years on the challenge to the constitutional rights presented by recent changes and board application of intellectual property laws. In the aftermath of the attacks of September 11, 2001, the EFF has return to its roots, focusing on the issues of government surveillance, freedom of speech and other traditional civil liberties.

Ms. Cohn first became involved with the EFF over 7 years ago. She has testified before Congress, featured in the New York Times and interviewed on BBC, NPR and CBS news. For ten years prior to joining the EFF, she was a civil litigator in private practice handling Internet-related cases. In 1997, as a result of her work in the Bernstein case, Cindy Cohn was named as one of the “Lawyers of the Year” by California Lawyer Magazine. In 2001, Ms. Cohn and the EFF were honored by the Editorial Board of Daily Journal as Lawyers of the Year.

A large part of the lecture described the many of the EFF’s cases and how they fit in the goals and focus of the organization. The purpose of the EFF is to ensure that civil rights and liberties in cyberspace are kept intact. Maintaining such rights as the right against unreasonable search and seizure, freedom of speech, freedom to research, publish and investigate and the right to use, manipulate and control our culture including the right to tinker with technology.

Search and Seizure
On March of 1990, Secret Service performed an early morning raid on the office of Steve Jackson Games BBS. Secret Service confiscated 3 computers, 5 hard disks and more than 300 floppies of software and data, and a book manuscript being prepared for publication. The government was responding to a rumor that a document, stolen from the Telephone Company revealing how the 911 system works, might be posted on the BBS. The document was never found, even after the Jackson Games’ property was held for 3 months. When their equipment was returned it was apparent that the Secret Service read and deleted all the email on the server. None of the BBS users were even under investigation by the Secret Service.

The EFF came in and established that particularity is the same for digital technology as in a physical environment. That is, if the Secret Service had a warrant to look through a file cabinet they could not extend the warrant to include searching a refrigerator. So if the Secret Service wanted to look at the data in a computer they needed to have warrant granting such a search. At the time, the Government argued that they didn’t need a search warrant at all to search through computer data.

Freedom of Expression
Congress passed a law trying to ban indecent speech on the Internet. ACLU v. Reno went all the way to the Supreme Court and the Supreme Court in a 9-0 decision held that the Internet was a fully protected media of expression. It is astounding that this decision was made for the Internet, when compared to other earlier technologies. For example movies were not considered a media of expression for fifty years, but merely an entertainment.

Prior to Bernstein v. the Department of State encrypted technology was subject to The Arms Export Control Act. Daniel Bernstein was required to purchase an International Trafficking in Arms Regulations license to export an encrypted product called “Snuffle” overseas.

In Cindy Cohn’s first case with the EFF, the Ninth Circuit Court established that computer programs were protected expression under the 1st Amendment and the ITAR could not impede that speech.


Intellectual Property Holders
While cases with the government were establishing digital technology as a media of expression, the EFF was starting to see a new wave of opposition from intellectual property holders like the MPAA and RIAA. The vast majority of copyright holders are those of Hollywood and the music industry. These corporate holders operate like cartels and control 80-90% of copyrights. In order to protect these copyrights Hollywood began asserting overreaching arguments to control speech on the Internet. “So historically it make sense that the copyright owners would the shift from analog technology to digital technology as opportunity to, in their minds, regain what they had lost in the VCR wars.”

Digital Millennium Copyright Act
These copyright owners pushed Congress into passing the Digital Millennium Copyright Act. The DMCA has a set of provisions that are speech restrictive called anti-circumvention provisions. Essentially, the copyright owner puts a lock around the content. According to the DMCA, the lock must be opened with a device that is licensed by the copyright owner. So if the MPAA and RIAA could copyright the nail, we could go to jail for using the wrong hammer.

Right to Tinker with Technology
Sixteen year-old Norwegian, Jon Johansen, was arrested for his participation in the creation of DeCSS. DeCSS was designed to circumvent the Content Scrambling System and bring DVD playback to open source platforms like FreeBSD and Linux. At the behest of the MPAA, the Norwegian Economic Crime Unit charged Jon Johansen and his father, Per, for breaking a security arrangement to access data and infringement of copyright law. It was the first time this law was used to charge someone from breaking into his or her own property.

Right to Free Speech and to Publish
2600 wrote about Jon Johansen on their website and published the DeCSS source code. Using the DMCA, the MPAA issued an injunction and 2600 withdrew the DeCSS mirror and replaced it with a link to the source code. A week later the MPAA issued an injunction preventing that link. The MPAA eventually won the case. But the public consciousness about the case dramatically weakened the power of the DMCA.

Right to Research, Investigate and Publish
The SDMI invited people around the world including Edward Felten of Princeton University to circumvent their watermarking technologies. This audio watermark was designed to protect the copyright of Compact Discs. Prof. Felten was largely successful and wanted to publish his results. The SDMI and RIAA wrote a threatening cease and desist letter.

Felten then filed a lawsuit, through the EFF, to uphold Felten’s First Amendment right to publish his research findings. Felten dropped his suit after the courts implied that scientists studying digital copying technologies would not be subject to the DMCA.

Right to Use and Control Technology
In an Interview with Cable World Magazine, Jamie Kellner, CEO of Turner Broadcasting, proclaimed that because personal video recorders, like ReplayTV have the ability to skip programming in 30 second intervals, using them is stealing. “Because of the ad skips...” Mr. Kellner said, “It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming.”

Craig Newmark editor of Craigslist.org and an owner of a ReplayTV PVR disagreed. With the EFF and four other ReplayTV owners Newmark is asking the court for a declaration that ReplayTV owners are not thieves. This case has often been called the Digital BetaMax Case. In the same interview Kellner did allow for a certain amount of tolerance for going to the bathroom.

Right to Anonymity and Privacy
The RIAA served a subpoena to Verizon demanding the identity of a user that traded music on the Kazaa website. The RIAA’s subpoena was not connected to any lawsuit. Verizon did not want to set the costly precedent of policing their clients. “The RIAA wants... to be able to issue a free flowing subpoena, outside of any other judicial process, and just have this information turned over. In deed, in their discussions with the ISP’s about this, what they really want is immediate electronic access. They want to be able just tap right in to the ol’ Verizon database and pull out anyone's name they want to.”

The RIAA sent a letter to 2,300 colleges and universities urging the schools to impose effective remedies against violators of copyright law. The Naval Academy had confiscated the computers of about 100 midshipmen who allegedly have pirated music and movies on their hard drives. Although, the RIAA says it had nothing to do with the action in Annapolis, the Academy was one of the schools that was sent the RIAA letter.

The University of Wyoming also monitors the email and file transfers of its students for copyrighted works of RIAA. Using Audible Magic, they have even created a database to this regard. The existence of this database concerns the EFF, “If you think that the Recording Industry is the only group that’s interested in that, you haven’t been paying attention to Mr. Ashcroft.”

Cindy Cohn maintains the John Doe Anonymity section in the chillingeffects.org site, a website that offers a board range of legal information to those threatened for their on-line activities. Chilling effects maintains an archive of cease and desist letters. This was inspired, in part, because the EFF got word from the people who owned the rights to Barney the big purple dinosaur. “I got a cease and desist letter from Barney, telling me that because there were threats in this little song against Barney that I needed to take it down. And that there was trademark infringement and copyright infringement. And so I had to write a letter back, it’s available on the Chilling Effects site, pointing out that this was completely protected expression and that the idea of a threat to an imagery creature was kind of puzzling to me.”

USA Patriot Act
September Eleventh created a wall of fear and allowed Congress to pass the five hundred page USA PATRIOT Act just 5 weeks later. Cindy had offered $10,000 dollars to any congressman who could prove they read PATRIOT before signing off on it. She received no takers. Patriot expanded surveillance while reducing checks and balances. Broadly increased government’s ability to issue gag orders and to keep information about what the government is doing under these new powers a secret.

In the EFF’s first brush with the Patriot Act, the FBI requested Reef Seekers Dive Shop to turn over the names of people who have taken dive courses without completing. The FBI had already received information of those who had completed the course from dive certification authorities like PADI. Reef Seeker refused and the FBI was not likely go through the legal proceeding required to get the information. But Patriot Act had just come in effect and FBI did return with a subpoena - a grand jury subpoena.

“Grand Juries have really wide latitude because once the Grand Jury Investigation is over that data goes away. It’s erased. It doesn’t continue. It doesn’t persist anywhere. But along come USA Patriot Act that says ‘No, no, no, Grand Jury information is to be shared widely among law enforcement as long as it is relevant to a potential criminal investigation.’ So while the FBI doesn’t have probable cause or a basic order enabling them to go get my dive shop information from this little dive shop. They do with a Grand Jury subpoena because the standards are much lower. And then, guess what, they can just flow that information right on over to the centralized database and populate the database that way. Nice little end-run around the traditional investigative techniques. “

Domestic Security Enhancement Act of 2003
Even as the Patriot Act consisted of provisions consider too disquieting to pass before September Eleventh, the Domestic Security Enhancement Act, better known as Patriot II, consists mostly of parts of the first Patriot Act that Congress was to afraid to pass. Patriot II empowers Immigration Authorities the ability to take away citizenship. It grants authority to compel third parties to provide information to law enforcement and broad immunity for informants.

Patriot II also removes law enforcement accountability, “I think, in some ways, the scariest provision of all, under Patriot II, says that if a Law Enforcement official has a good faith belief that he is complying with the surveillance order, if he doesn’t actually comply with the surveillance order, that’s just okay. And, I think, at that point we can just give up the pretence that we have any restrictions on law enforcement and surveillance. Because if they have immunity, if they can go over the line on those restrictions, I don’t think the restrictions are worth the paper they’re written on anymore.”

The Patriot Act has set back the clock on civil rights. But we have an opportunity to fight off the Domestic Security Enhancement Act before it is enacted. Senators and Representatives in Congress are beginning to consider the ramifications of these laws. What Cindy Cohn says about the Reef Seeker case are important words to remember now.

“The thing that’s important to remember about this is that, first of all, we stood up to the government and we actually won. We might not have set a precedent, but we got them to go away. And I think that right now there is a sense among people who are concerned about how the government is exercising its power, that they’re defenseless. And I’m here to tell you that while it’s hard, I’m not going to say it’s easy, You can fight them and you can stand up and say, ‘No, I don’t think this is right.’ and resist.”