“My first thought was: This is attention we don’t need,” said John Gilmore, a tech millionaire who helped found EFF. “In a sense, we were dragged into this by that sticker.”
That was June. Four months later, worries that EFF would be cast as aiding and abetting the enemy have eased. Instead, the foundation’s donations have surged by a factor of 10. It has won victories in court, forcing the release of secret documents. Congress has begun considering bills that would curb surveillance, and polls show privacy concerns running higher than at any point since the Sept. 11, 2001, attacks.
This political momentum has brought EFF to a crossroads.
Rooted in San Francisco’s counterculture idealism and tech-industry ferment, the foundation has long shunned the dirty work of legislative politics. “We are zealots. We don’t play the compromise game,” said Shari Steele, EFF’s executive director.
But the foundation’s allies and even some of its own staff wonder if EFF is ready to capitalize on a potentially historic moment. Can a band of lawyers and technologists — working from a brightly lit office emblazoned with free speech slogans and dark warnings about the government — mount an effective fight in Washington, the home turf of what it calls “the surveillance state”?
The question is complicated by EFF’s own history, dating to a painful stretch in the 1990s when it was headquartered in the nation’s capital and sought to be a lobbying force there. Its members clashed over the compromises inherent in Beltway-style politics, and the most fervent idealists fled with the organization to the West Coast.
More than a decade later, EFF is much larger, and so, arguably, are the stakes. The government’s surveillance tools have grown steadily more powerful and its legal authorities more expansive. Helping reverse those trends may require a foundation led by outsiders to do something they loathe: Play the inside game on Capitol Hill.
“I’d like to see them back,” said Christopher Soghoian of the American Civil Liberties Union, who has engaged in many debates in the capital about technology, privacy and security. “Washington would be better if they were here.”
The foundation was born in 1990 in Cambridge, Mass., as something of a legal defense fund for hackers amid a federal crackdown on alleged computer crimes. It moved to Washington two years later to “reverse-engineer the architecture of the Beltway,” as Mitch Kapor, one of the founders, told Wired magazine at the time.
Reality hit when EFF got involved in the backroom dealings over a federal bill requiring telephone companies to build surveillance capabilities into new digital communications networks. The foundation helped win several privacy protections, but when the bill passed in 1994, some of EFF’s leaders and members were furious that it had been a negotiating partner — instead of a staunch opponent — in creating a new era of mass surveillance.
Some EFF staffers left amid the uproar to start a new group, the Center for Democracy and Technology, taking with them substantial industry funding. What was left of EFF departed for a fresh start in San Francisco.
It arrived here in 1995 with little money, few remaining staffers and wounded pride. But it found a natural home in the city’s vibrant Mission District, a short drive from Silicon Valley. The move also brought the latest shift in institutional personality. Having started as a public interest law firm and dabbled in lobbying, EFF in San Francisco evolved into something more like a civil liberties think tank that happened to employ teams of crack technologists and grass-roots political activists.
Legal Director Cindy Cohn said, “My job is to make sure your constitutional rights make it into the digital age.” But that mission is defined broadly, involving work on copyright law, government transparency, net neutrality and cryptography.
The combination can be hard to explain to those first encountering EFF. Danny O’Brien, the organization’s international director, said that when meeting political leaders and activists from other countries, the introduction goes something like this: “Hi. We’re from the Internet, and we’re here to help you.”
It also can be hard to place the foundation on a familiar ideological spectrum. EFF mixes ’60s-style liberalism with optimism about the transformative power of technology, then it spikes that combination with a libertarian distrust of government.
National security officials find EFF strident in its almost total opposition to government surveillance. Yet when the snooping is being done by companies — collecting personal data to better target ads at Internet users — the foundation is more likely to favor technological solutions than new regulations. Some in Washington see EFF’s positions as tracking those of the tech industry.
“The idea that data should be available to companies so that they can sell us more soap that we might like, but not to protect us from terrorists, is just nutty,” said Stewart A. Baker, a former National Security Agency general counsel and senior Homeland Security official in the Bush administration. “Governments want this data generally for pretty good reasons.”
One constant at EFF has been the pursuit of what it calls “impact litigation.” In 2006, the foundation’s lawyers filed a class-action lawsuit against AT&T after reports that the telecom giant was cooperating with a Bush administration program of warrantless wiretapping of Americans. As evidence, EFF produced an affidavit by a former AT&T technician detailing how the NSA installed monitoring equipment at a company facility in downtown San Francisco.
That same year, EFF retained two D.C. lobbyists whose job was to fight a bill granting immunity to phone companies that assisted in government surveillance. When the bill passed anyway, it effectively ended EFF’s case against AT&T. The foundation eventually revived its legal attack, filing a new lawsuit against the NSA in 2008. But first, EFF retreated from the capital again, choosing to keep in touch by phone, e-mail and the occasional personal visit.
“You have to twist their arms to get them to come here,” said Jeffrey Chester, executive director of the Center for Digital Democracy, an advocacy group based in Washington.
It’s easy to see why. Despite pay that’s modest compared to the private sector, there is a relaxed, almost collegiate atmosphere at EFF’s spacious headquarters building. EFF staffers are encouraged to bring their dogs to work. There are free massages, paid sabbaticals after seven years on the staff and a subsidized vending machine that delivers coconut water, among other beverages, for 50 cents. Jeans and hoodies — many bearing the EFF logo — are typical work garb.
The foundation’s annual budget grew by 40 percent this year, to $6.9 million, to keep pace with rising donations and expanded ambitions. The staff is approaching 50 people, while the list of dues-paying members tops 24,000, officials say.
They would not say whether Snowden is on the list, though they acknowledged that the sticker pictured on his computer — first published June 9 by the the British newspaper the Guardian — is routinely issued to members. (Despite the unease at EFF over that photo, one of the founding members, John Perry Barlow, a former Grateful Dead lyricist, tweeted the image to his followers).
A pair of Freedom of Information Act requests from EFF recently yielded front-page news when the Justice Department agreed to release previously secret rulings about NSA spying programs.
The requests were filed by David Sobel, a lawyer working part-time for EFF in Washington — a location he says the foundation’s leaders “tolerate” because of his desire to be there. The documents, though illuminating, came with such heavy redactions that the printers at EFF’s headquarters ran out of black ink.
(The Washington Post filed an amicus brief this year supporting EFF’s request for the release of FISA court rulings on the section of the Patriot Act that concerns bulk collection of phone records.)
EFF also played a role in opposing the Stop Online Piracy Act, better known as SOPA, that culminated last year in a massive service blackout involving Wikipedia, Google and thousands of other Web sites protesting what they said was infringement of free speech.
The bill, backed by the movie, television and music industries, had been widely expected to pass, but it died soon after the Internet protest. EFF’s activism director, Rainey Reitman, says that congressional staffers who deal with the group’s members on bills sometimes ask, “What do we have to do so that you don’t SOPA this bill?”
Yet EFF officials acknowledge sometimes feeling far from the flow in the nation’s capital, with legislative intelligence reaching them secondhand, often from District-based advocacy groups. If a bill limiting government surveillance starts moving, officials at the ACLU, the Electronic Privacy Information Center and the Center for Democracy and Technology will be able to take cabs to key meetings. Anyone from EFF will have to board a plane.
EFF is, however, helping sponsor the Rally Against Mass Surveillance on Oct. 26, along with tech companies and other activist groups, including the ACLU, Reddit, Mozilla and dozens of others. Those inspired by Snowden’s revelations can sign an online petition and watch the rally live at viewing parties around the country. Or they can attend in person.