Hacker's Secrets 4/Hacker's Secrets 4.iso/privacy/effstory.txt

Text File | 1991-02-14 | 31KB | 563 lines

A Not Terribly Brief History
of the Electronic Frontier Foundation

by John Perry Barlow

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 NuPrometheus
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.


The EFF in Public

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.


Legal Issues

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.


Intellectual Property

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.


Designing the Future Net

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.


An Information Bill of Rights

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.


Nuts and Bolts

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 [e-mail], we have established a
location in the material world.  Our office is at:

The Electronic Frontier Foundation
155 Second St.
Cambridge, MA     02141
[phone]
[phone] 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
become 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 Kicker

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.