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New Frontiers

2000 Law.com
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New Frontiers
Electronic Frontier Foundation bulks up, renews focus on litigation
Brenda Sandburg

The Recorder

September 22, 2000

San Francisco's Electronic Frontier Foundation is pumping up its legal team to pursue a new wave of litigation involving privacy and consumer rights in cyberspace.

The new hires and change in strategy reflect a renewed focus on taking battles to court -- a decision that came after an internal struggle over the direction of the group and the subsequent departure of its executive director and board chairwoman.

EFF's revamped team includes executive director Shari Steele, the group's longtime legal director who left in February but returned in June to head the group. She recently hired Cindy Cohn, formerly a partner at San Mateo, Calif.'s McGlashan & Sarrail, as legal director, and Lee Tien as staff attorney. The latter position has been vacant since Michael Godwin left the group last year.

Pamela Samuelson, renowned intellectual property scholar and professor at University of California at Berkeley Boalt Hall, also recently joined EFF's board.

The new leadership arose after a series of disagreements among EFF staffers and board members. While some sought to forge closer ties with Silicon Valley companies, others wanted to focus on civil liberties issues and litigation. The board ultimately decided to devote its resources to the latter.

"We're getting back to our roots," Steele said. "We really do best at being on the cutting edge where law and technology collide."

NEW TEAM

To help drive the EFF forward in this area, Steele turned to Cohn, who gained prominence challenging the federal government's cryptography export restrictions.

The cryptography case arose when Daniel Bernstein, then a UC Berkeley graduate student, developed a formula for encryption, called "Snuffle," and sought to post a paper about it on the Internet. The Department of Commerce demanded that Bernstein obtain a license, arguing that the Internet communication constituted an "export" since foreigners could easily access it.

Bernstein -- represented by Cohn -- filed suit challenging the policy. Cohn, backed by EFF and co-counsel Tien, won an initial victory in Bernstein v. U.S. Department of Justice, 176 F.3d 1132, when the 9th Circuit ruled that software is protected speech and thus can be posted on the Internet without government approval. However, last year a three-judge panel withdrew its opinion and ordered the case be reconsidered by the court en banc.

Before the case was taken up again, the federal government issued new export regulations that apparently will permit Bernstein's posting. The two sides will soon meet to determine if the case is moot.

Prior to the Bernstein case, Cohn handled general civil litigation cases at six-attorney McGlashan. Before joining McGlashan in 1991, she worked for a nonprofit human rights organization -- Unrepresented Nations & Peoples Organization -- and also did a stint as a litigation associate at Farella Braun & Martel.

Cohn remains actively involved in human rights issues. She currently represents Nigerian citizens in a suit against Chevron Corp. for assisting Nigerian troops in quelling demonstrations against a Chevron subsidiary. The suit is pending in San Francisco federal court.

Tien also developed expertise in Internet and First Amendment issues through the Bernstein case. Prior to joining EFF, he was a Berkeley sole practitioner whose clients included EFF co-founder John Gilmore.

EFF's legal team also includes Robin Gross, who joined the organization last year to handle intellectual property issues, and Deborah Pierce, who focuses on privacy issues.

10-YEAR HISTORY

EFF was launched in 1990 by Mitchell Kapor, founder of Lotus Development Corp., and John Perry Barlow, a retired Wyoming cattle rancher and lyricist for the Grateful Dead, to protect individual privacy and free speech on the Internet.

In its first case, the group took on the feds over the issue of e-mail privacy. A federal court ruled in 1993 in Steve Jackson Games v. U.S. Secret Service, 816 Fed Sup 432, that the government needed to have a warrant to access an individual's e-mail.

EFF went through a major shift in direction in 1992 when it moved its headquarters from Cambridge, Mass. to Washington, D.C., and began focusing on policy issues. Most notably, the group lobbied for privacy provisions in the Digital Telephony and Privacy Improvement Act of 1994, which set rules for wiretapping cell phones and other digital equipment. Many EFF members were angry about the group's role in the passage of the bill. Soon thereafter, EFF turned away from Washington politics, moving its headquarters to San Francisco in 1995.

Since then, the organization has focused on grassroots work, helping individuals in need of legal assistance and serving as an educational resource.

Godwin, who left EFF last year, said that Lori Fena and Tara Lemmey -- former chair and executive director, respectively -- wanted to forge ties with the business community. Such ties "are a way to ensure funding, but they make it hard to do civil liberties work for people who the business [community] doesn't approve of," Godwin said.

An EFF staff attorney since the group's founding, Godwin said he was dismayed about its business tilt. "I thought EFF was toast," he said. "It had gone so far away from having a mission I didn't see what they had to offer anyone." Godwin is now a correspondent for IP Worldwide magazine, a Recorder affiliate.

However, EFF co-founder Gilmore downplayed the internal differences. "I don't see [EFF's current focus] as a radical change," he said. "I think we have both ties to the business community and litigation."

As to the changes in leadership, Gilmore acknowledged that there were "some issues about strategy" between EFF and Lemmey. "She's a great idea generator, but she needs staff to follow through on the ideas," Gilmore said. "EFF can't afford that staff." He said that Fena left to pursue other responsibilities.

Steele said disagreement over EFF's direction has gone on throughout the group's history. "It's really hard because there are so many pressing issues related to cyberspace and law," she said, adding that the board is now "very committed to a more grassroots, case-oriented style."

Lemmey recently launched a new San Francisco-based non-profit group, Project LENS, which seeks to form collaborations between the legal, business and scientific communities.

NEW ERA

The litigation approach is appealing to Boalt's Samuelson. "There was a time when EFF was doing projects that did not involve the use of law," Samuelson said. "More recently it moved back toward a litigation model" and also began working on IP and privacy issues.

Given her expertise in these areas, she decided it was a good time to join EFF's board.

She said that those affiliated with Boalt's new law center --- the Samuelson Law, Technology and Public Policy Clinic -- are also interested in the work that EFF is doing. The clinic, which was established with an endowment from Samuelson and her husband, will get students involved in litigation and legislative projects. It is set to get underway in January.

EFF jumped into the IP arena last year when it began defending individuals sued by the motion picture industry for copyright infringement. The individuals had posted on the Internet a computer program, called DeCSS, that unscrambles an encryption code and allows copying of DVD movies. Last month, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York ruled in favor of the movie studios.

As to future activities, Steele said EFF is considering becoming a plaintiff in the California class action suit against DoubleClick, which claims that the company is secretly collecting personal data on Internet users. The group also is continuing to represent the defendants in four DVD cases. In addition to the New York case, other suits are pending in Santa Clara, Calif.; Connecticut; and Norway. EFF also anticipates future litigation involving peer-to-peer, or file-sharing, systems on the Internet.

Cohn said these cases are part of the second round of cyber-civil liberties disputes. She said the first round was against the government, citing the Bernstein case and ACLU v. Reno, 117 S. Ct. 2329, in which the Supreme Court overturned a portion of the Communications Decency Act. Now, she said, EFF and others are facing off against better-financed players, such as the motion picture and recording industries, who in EFF's view are using intellectual property law to unfairly extend their rights.

"IP is the biggest threat to civil liberties on the Internet," she said.