Electronic Frontier Foundation Would Rather Sue Than Lobby

SAN FRANCISCO – A year after moving its headquarters to Washington, D.C., the Electronic Frontier Foundation was already in the hot seat.

Before Congress was a proposal to require telecommunications companies to build their networks in a way that would let law enforcement easily wiretap calls. The EFF and other civil-liberties groups were naturally opposed.

But then the EFF struck a deal, agreeing to support legislation known as the Communications Assistance for Law Enforcement Act, or CALEA, in exchange for additional privacy protections. The bill became law in late 1994.

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Many EFF supporters complained about that compromise, and the organization left for San Francisco the following year and soon returned to its roots in litigation.

In a parting that wasn't entirely amicable, some EFF staffers stayed behind to form the Center for Democracy and Technology, or CDT, to help shape legislation.

By shunning compromise, the EFF is left in a position of challenging what it considers bad laws rather than preventing their passage in the first place. But the EFF says it'll have it no other way.

"It's in the nature of Washington organizations to regard keeping a place at the table with paramount interest," EFF co-founder and board member John Perry Barlow said. "You know you're going to deal with them another day, and you're very inclined to compromise, make deals."

Better to stay out of lobbying completely, EFF executive director Shari Steele said.

The EFF is reopening a Washington office on Aug. 1 to tackle Freedom of Information Act and other cases, but Steele said the two attorneys there, hired from the Electronic Privacy Information Center, won't engage in lobbying this time.

Many of EFF's supporters say they'd like to see the organization at the lobbying table, but acknowledged that even a noncompromising stance can be useful in starting discussions that another group could complete.

"You sort of need to be aggressive just to get the dialogue going," said Mike Godwin, a former EFF staff attorney and CDT policy fellow now at Yale University.

As litigators, the EFF has won several battles along the way:

— In May, the EFF won for online reporters and bloggers a California appeals court ruling that they are entitled to the same protections as traditional journalists. The court rejected Apple Computer Inc.'s (AAPL) bid to identify the sources of leaked product information.

— The group recently joined in negotiating a settlement with Sony BMG Music Entertainment to give millions of consumers free song downloads to compensate them for flawed anti-piracy software on compact discs. The EFF was one of several to bring lawsuits.

— The EFF affirmed critics' rights in 2004 to circulate internal memos that appeared to expose security flaws in Diebold Inc.'s (DBD) electronic-voting machines. A federal judge said Diebold had improperly used copyright claims to order the documents removed.

— The organization took on government efforts to treat encryption technology as military weapons and won a federal appeals court ruling in 1999 declaring that computer code is speech that can be freely posted online. The government has since relaxed export restrictions as well.

The EFF also has lost some:

— A federal appeals court sided with Hollywood studios in 2002 and ordered the publisher of a hackers' magazine to remove links to a Norwegian teen's software for decrypting and copying DVDs. EFF attorneys had unsuccessfully argued that publishing the software was free speech.

— Last summer, the U.S. Supreme Court ruled that the entertainment industry can file piracy lawsuits against technology companies caught encouraging customers to steal music and movies over the Internet.

Although two lower courts had ruled that technology with legal uses — in this case, file-sharing software — shouldn't be barred simply because others can use it to commit crimes, the high court ruled that its 1984 decision on which those rulings were based doesn't mean courts should "ignore evidence of intent to promote infringement."

Fred von Lohmann, the EFF attorney who handled the file-sharing case, said he'd rather see the EFF battle in the courts than before Congress, noting that the judiciary can be an important place where laws get shaped.

"We have armies of lobbyists now watching in Washington and the states," he said. "We don't really have that in the court system where just as important laws are made."