Up Against Big Brother
For 18 years the Electronic Frontier Foundation has fought for the rights of ordinary Americans in cyberspace. Now it’s stepped into the limelight with a legal challenge to warrantless surveillance.
Ready for prime time: EFF lawyers (from left) Kevin Bankston, Cindy Cohn, Shari Steele, and Lee Tien find themselves in a legal battle with the nation’s largest telecommunications company—and the White House.
photo by Gary Laufman
One sunny day in San Francisco two winters ago, a retired telecommunications technician with an understandable distrust of telephones stepped off a BART train after a short but fateful ride. His name was Mark Klein, and his destination was a red brick office building in an untouristed part of the city dominated by low-rise warehouses. There he met with a small group of maverick, tech-savvy lawyers called the Electronic Frontier Foundation.
For Klein, then 60, this trip was a long time coming. As a veteran telecommunications technician and computer network associate at AT&T, he had in recent years obtained several company documents that described in specific, technical terms a secret room he says the National Security Agency (NSA) had set up on the sixth floor of an AT&T building downtown. Klein entered the room itself only once, and that was just for a couple of minutes. (Generally, people needed a security clearance to gain access.) However, just one floor above, he managed the Internet-traffic room to which it was electronically connected. Through that work, the documents he gathered, and conversations he had with other employees, Klein came to understand that his employer was colluding with the federal government to siphon a copy of billions of domestic Internet communications into that secret room, every second of every day. And all without a warrant. "Even Nixon didn't go that far," Klein thought. As he later told MSNBC, the situation made him think of George Orwell's classic 1984. "Here I was, being forced to connect the Big Brother machine." However, after complaining to a supervisor, with no result, he did not pursue the matter. He retired in 2004.
Then, in December 2005, the New York Times outed the Bush administration's warrantless domestic-surveillance program, which the administration subsequently defended as an effort to monitor no more than a handful of phone calls to the Middle East. This convinced Klein that the time was finally right to share his inside information.
His timing was better than he imagined: When he knocked on EFF's door that day in January 2006, the lawyers inside were already working feverishly to craft a class action against the nation's largest telecommunications company.
Like Klein, EFF senior staff attorney Kevin Bankston had spent much of the previous December reading press accounts of the administration's secret surveillance program. "It was all I thought about over the holiday," he remembers. In fact, at his boss's New Year's Eve party the first words out of Bankston's mouth when she opened the door were, "I want to sue AT&T."
So less than a month later, when Klein showed up at EFF without an appointment, carrying a CD-ROM that contained several PDF files, Bankston didn't need to be convinced to hear him out. "He seemed immediately very credible and concerned about the invasion of privacy," Bankston says. "He was everything you'd want a whistleblower to be."
Lee Tien, another EFF senior staff attorney, also met Klein that day. "We were cautious," Tien says. "People send us all sorts of stuff, and one should not expect manna from heaven." Still, before long he too concluded that Klein was exactly the sort of insider they needed.
Thanks to the many civil rights cases EFF's lawyers and staff technicians have brought over nearly two decades, they enjoy something of a cult following. "In my world they are heroes," says technologist and entrepreneur Brewster Kahle, an EFF board member who is the digital librarian and cofounder of the Internet Archive, a San Francisco nonprofit library. "They are a clear, nonradical group that is very highly respected in Silicon Valley."
Outside of the Valley, though, EFF's exploits are not nearly as well known. "Most lawyers in the past haven't been aware of us," says Jason Schultz, a former staff attorney who left EFF in November to take a post at UC Berkeley. "EFF, by definition, is a group that deals with cutting-edge technology issues, and most attorneys haven't cared about those issues."
But as more Americans have become preoccupied with Web browsing, emailing, blogging, text messaging, and video uploading, concern about the regulation and monitoring of electronic communications has grown. This, no doubt, helps make EFF's class action against AT&T (Hepting v. AT&T, Nos. 06-17132 and 06-17137) both compelling and comprehensible, even to ordinary Americans. Today it is one of more than three dozen lawsuits against several telecom companies that have been consolidated before U.S. district Chief Judge Vaughn R. Walker in California. "[Hepting] is much more mainstream than our other cases-it is much less techy," says EFF's executive director and president, Shari Steele. "We have made Mom and Pop notice us. People on the street are saying 'Uhhh!' when they hear that the government is looking and listening without warrants."
The suit's potential reach is evident just from the varied backgrounds of its three named class representatives. Tash Hepting is a customer-service manager who lives in San Jose. Gregory Hicks, also of San Jose, is a retired naval officer. And Erik Knutzen is a photographer and land-use researcher who lives in Los Angeles.
Meanwhile, even Judge Walker felt he had to switch from AT&T to another phone company to eliminate "any possible interest in the declaratory and injunctive relief sought by plaintiffs."
Hepting "is the big enchilada," observes EFF board member Pam Samuelson, a professor at both UC Berkeley's law school and the School of Information Management.
Still, for EFF to win this fight, it will have to overcome an extraordinary set of legal hurdles, not the least of which is a White Houseled effort to legislate Hepting out of the courtroom. Since late summer, President Bush has been demanding immunity for the telecom providers that cooperated with the NSA's surveillance. In late October that push was joined by four former officials of his administration-including former attorney general John Ashcroft-who signed a letter urging the Senate Judiciary Committee to pass an immunity provision approved by the Senate Select Committee on Intelligence on a bipartisan vote.
"Protecting carriers who allegedly responded to the government's call for assistance in the wake of the devastating attacks of September 11, 2001, and during the continuing threat of further attacks is simply the right thing to do," they wrote. "When corporations are asked to assist the intelligence community based on a program authorized by the President himself and based on assurances that the program has been determined to be lawful at the highest levels of the Executive Branch, they should be able to rely on those representations and accept the determinations of the Government as to the legality of their actions."
At the heart of the controversy, though, lies a much older piece of legislation: the Foreign Intelligence Surveillance Act, or FISA (50 U.S.C. Â§Â§ 180162). Passed in 1978 after revelations that the government had been working for decades with telegraph companies to spy on Americans, it established a separate legal regime for "foreign intelligence" surveillance.
Of course, technology has advanced quite a bit since Western Union's heyday, and there's bipartisan sentiment in Congress that an update is needed. But the administration says it will veto any measure that fails to include an immunity provision for the telcos, setting the stage for a battle royal that could make or break EFF's legal case. Win or lose, though, it would be hard to imagine a more perfect fight for EFF, which got its start 18 years ago with an impromptu meeting in Wyoming.
That meeting occurred one June day in 1990 when, en route from Boston to San Francisco, Mitch Kapor's private jet touched down in Pinedale, Wyoming, a speck of a town near the Wind River Mountains. There he met with a former rancher named John Perry Barlow, a state senator's son who once wrote lyrics for the Grateful Dead.
Kapor, a spreadsheet millionaire who cofounded Lotus Development Corp., had met Barlow in person only once before. But they interacted regularly in an early online community called The Well. Together with John Gilmore, who made his fortune as Sun Microsystems's fifth employee, they carried on lengthy exchanges on such then-esoteric topics as computer hacking, online intellectual property theft, and email privacy.
"Everything was new and strange then," says Kapor. "And there was so much ignorance and misunderstanding."
However, their discussions were anything but theoretical: EFF's founders, as well as some hackers they knew, had a series of close brushes with the law that convinced them something more formal needed to be done. So, while the late-spring snow swirled outside Barlow's office, the two men spent hours hashing out plans for an organization that would defend First Amendment rights in cyberspace.
The following month, Kapor and Barlow formally announced the launch of EFF in Cambridge, Massachusetts. "The Electronic Frontier Foundation has been established to help civilize the electronic frontier; to make it truly useful and beneficial to everyone, not just an elite;" their mission statement proclaimed, "and to do this in a way that is in keeping with our society's highest traditions of the free and open flow of information and communication."
With no legal staff of its own, the organization initially relied on outside counsel. In the first case it took on, EFF paid for the legal representation of Steve Jackson of Steve Jackson Games, a small company in Austin, Texas, that publishes role-playing games and books about them. Jackson was at home in bed the morning the trouble began. He received a phone call from one of his employees telling him that armed Secret Service agents had entered the company's offices, cleared out the staff, and were busy seizing equipment, including a computer that contained the manuscript of a book they were about to publish.
In an episode reminiscent of the Keystone Cops, the agents were hunting for an illegally copied, though easily obtainable, BellSouth document that described how the emergency 911 telephone system worked. The agents never found what they were looking for, but the company was left without a book to publish, which forced Jackson to lay off half his staff while he fought to get his equipment back. In 1993 a U.S. district judge for the Western District of Texas found that the Secret Service had violated both the Privacy Protection Act (42 U.S.C. Â§ 2000aa) and the Wire and Electronic Communications and Transactional Records Access Act (18 U.S.C. Â§Â§ 270111). It awarded the company more than $50,000 in damages and $250,000 in attorneys fees (Steve Jackson Games, Inc. v. U.S. Secret Serv., 816 F. Supp. 432).
"The failure of the Secret Service ... to-promptly-return the seized products of Steve Jackson Games, Incorporated cannot be justified and unquestionably caused economic damage to the corporation," the judge ruled (816 F. Supp. at 438).
For the fledgling EFF, it was a great way to start.
Two years later, the foundation relocated from Cambridge to Washington, D.C., where it shifted its focus from litigation to politics, and in the process began to attract favorable notice from the tech community. An effusive 1994 profile in Wired magazine, for example, called the group "the preeminent defender of our civil rights in cyberspace."
But in 1996 the same magazine came out with an article critical of the organization, entitled "How Good People Helped Make a Bad Law." It chronicled EFF's role in the passage of a notorious piece of legislation called the Communications Assistance for Law Enforcement Act, or CALEA (47 U.S.C. Â§Â§ 100110), also known as the Wiretap Bill.
The intent of the bill was to give law enforcement investigators a leg up on such emerging technologies as fiber optics, which was far more difficult to tap into than conventional phone lines. Initially, EFF strongly opposed the measure, even organizing an ad hoc working group that drew the support of some 30 public-interest groups and companies. (Among them, ironically, was one of EFF's early financial sponsors, AT&T.)
Despite the foundation's best efforts, though, it seemed inevitable that CALEA would pass in some form. So, rather than lose all influence in the negotiations, EFF decided, after a rancorous board meeting, to work with Congress on a deal that would strike the bill's most egregious provisions. For instance, EFF prevailed on lawmakers to require a court order, rather than a simple subpoena, to access the transactional details of phone or email traffic. However, such concessions did little to appease CALEA's strongest critics, who, as Wired reported in 1996, accused the organization of "spineless pandering."
After that, EFF went through a lot of soul-searching. Its then-executive director, Jerry Berman, was pilloried for accepting the compromise. He soon left EFF to start the Center for Democracy and Technology. EFF cofounder Mitch Kapor also resigned, though he says he did so for other reasons. Then, in an effort to start anew, the organization moved to San Francisco, where it began to operate more as a think tank. But only in 2000 did the group begin to emerge from its doldrums. Some credit the return of Shari Steele, a lawyer who had worked on and off for EFF since the early days and now returned to become the organization's executive director.
"The EFF is in my blood," says Steele. "I have a sense of what's important as an attorney who has worked in it, and not just from an administrator's point of view."
That same year Tien joined as a senior staff attorney and Cindy Cohn as legal director. By 2002 Kapor also had begun working with the organization again, this time in an unofficial capacity.
Still, with fewer than a dozen staff attorneys, EFF remains a lean operation. And though it certainly doesn't pay those lawyers as well as big firms would, EFF has managed to attract an impressive roster of big-firm talent. Staff attorneys Fred von Lohmann and Matt Zimmerman both practiced with Morrison & Foerster; Corynne McSherry came to EFF from Bingham McCutchen, and Kurt Opsahl from Perkins Coie. Jennifer Granick, the foundation's new civil liberties director, had been executive director of Stanford Law School's Center for Internet and Society.
Every year, EFF raises most of its nearly $3 million budget through individual donors, including 13,000 dues-paying members. It also gets a boost from corporate sponsorships: Sling Media, for example, sponsors EFF's Pioneer Awards, which recognize those "extending freedom and innovation in the realm of information technology." Then there are the occasional attorneys fees that judges award, and grants from sources such as the John D. and Catherine T. MacArthur Foundation.
Lately the money has been easier to come by, staffers acknowledge, thanks at least in part to the Bush administration. As Steele notes, "The more the administration does evil things, the easier fund-raising is."
Of course, demand for EFF's services has also grown. Three to five inquiries come in to the organization each day from all over the country, and it takes a full-time intake coordinator to field them. Meanwhile, EFF's lawyers juggle up to a dozen court cases at a time, as well as the writing of half a dozen amicus briefs. Summer interns help. So do more than 250 "cooperating attorneys" who work pro bono. And for guidance with the complex technical aspects of cases, EFF has a list of more than 450 technologists to call on.
"The hardest part of my job is when I have to say no" to requests for help, says Legal Director Cohn. "There are too many problems that need my attention."
The cases EFF is most likely to say yes to are the ones with the biggest precedent-setting potential. It's also partial to those that other firms are least likely to take, cases such as Bernstein v. United States Department of Justice (176 F.3d 1132 (1999)), which helped establish the notion that software code is speech protected under the First Amendment. And EFF likes to defend the "little guy" against threats made by large companies and big government: In Frankel v. Lyons Partnership (No. 06 CV 6413, settlement 11/21/06), for example, it stood up for the website publisher of an online parody of Barney, the purple dinosaur, against corporate allegations of copyright and trademark infringement.
But, true to its mission, EFF is more interested in advancing debate and law than in seeking sure wins. Consider MGM v. Grokster (545 U.S. 913 (2005)). In that case, songwriters, music publishers, and motion-picture studios sued the makers of peer-to-peer software for sharing music the plaintiffs owned-a suit EFF unsuccessfully opposed. However, as Stanford law professor and EFF board member Lawrence Lessig notes, the foundation's take on the 2005 case arguably helped bring about a public opinion shift on digital-rights management (DRM) systems. One manifestation of that shift came last year when the London-based EMI Group decided to sell music on iTunes, Apple's online music store, without DRM restrictions, charging purchasers a premium for fewer limits on how they use the music. "After Steve Jobs and EMI got on the anti-DRM bandwagon, it seemed to be common sense," says Lessig.
"We try to work on cutting-edge, precedent-setting cases," Steele explains. "This puts us ahead of the curve. We walk an interesting line."
In the Hepting case, things got particularly interesting in November: Just as the fight against granting immunity to the telcos seemed lost, EFF took its star witness, AT&T whistleblower Klein, to Capitol Hill to make its case. For EFF, the trip to Washington marked a return to the political arena, which the foundation had largely abandoned after the CALEA controversy.
"Before we got there, it sounded like they were all going to run [immunity protection] through ... and it would be over and done with," Klein said on C-SPAN's Washington Journal program. But the day after Klein, Cohn, and Bankston met with various senators and congressional staffers, Senate Judiciary Chair Patrick J. Leahy (D-Vermont) postponed debate on the immunity question.
"It makes me feel that maybe we've had a tiny bit of impact," Klein told C-SPAN's reporter. "Maybe all the media coverage has spurred them to look a little closer."
The following week, the House passed its FISA-reform bill without an immunity provision. And in December, 14 senators urged adoption of a bill that would not set "the dangerous precedent of granting retroactive immunity to companies that allegedly participated in an unlawful program."
Alternative Senate measures, however, did provide for some form of immunity, and with debate postponed until January the direction of the final legislation was impossible to predict.
Meanwhile, back in San Francisco, the government appealed a decision by Judge Walker to reject its assertion of state-secrets privilege in the Ninth U.S. Circuit Court. (The Department of Justice, which has intervened as a defendant in Hepting, declined to comment on the pending litigation. AT&T also declined California Lawyer's request for an interview, saying only that it "is fully committed to protecting our customers' privacy" and that it does not comment "on matters of national security.") The three-judge appellate panel, which heard arguments in August, had issued no decision by press time.
Still, even if the Bush administration succeeds in getting an immunity bill it wants out of Congress, the Constitution would still stand, Cohn says. "We have a raft of things we could do" to challenge the warrantless surveillance program. "We have constitutional claims in our case," including both due process and Fourth Amendment arguments, she says.
If EFF loses those arguments, however, the consequences would be grave, Cohn claims. "It would mean that the Fourth Amendment and a variety of longstanding privacy statutes are effectively a dead letter for ordinary Americans in the digital age," she says. "The government-not only this government but all future governments-will be 'sitting on the wire' obtaining copies of everyone's everyday digital communications (email, phone calls, IM, Web browsing), and we'll all
just have to trust them not to misuse the information."
Jeanette Borzo is a senior editor at California Lawyer.
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