All EFF'd Up - Yasha Levine

14/09/2018 All EFF’d Up | Yasha Levine
Yasha Levine
No. 40
All EFF’d Up
Silicon Valley’s astroturf privacy shakedown
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Sally Thurer
ON A COLD AND WET FEBRUARY EVENING in New York City a few years ago, I
was in Midtown running some errands, when I came upon what appeared to be a
protest outside the Apple Store on Fifth Avenue. There were about six, maybe eight
people penned inside a crowd control barricade, holding up signs of some sort.
They were surrounded by reporters. From a distance, I thought they might be
picketing one of Apple’s many corporate misdeeds: maybe they were outraged over
the company’s flagrant tax evasion or brutal labor practices, or they might be union
representatives trying to organize the company’s disgruntled salesforce.
But on closer inspection, I realized that this wasn’t a protest against Apple but a
rally of ardent supporters praising the company’s product line. One of the
participants held up a large red poster featuring a giant iPhone and a bold slogan:
“SECURE PHONES SAVE LIVES.”
this policy.out that most of the placards had the message; a few of the demonstrators
It turned
were giving interviews, shouting against the crushing noise of rush hour traffic. I
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caught a few snatches of the conversation. “Now we are going to create a new class
of victim,” yelled one demonstrator to a camera crew huddled under plastic anti-
rain covers. “A billion people!” I pressed closer, but could only make out a few
disconnected words—something about backdoors, keys, and cryptography.
Backdoors? Victims? iPhones saving lives? What did I just stumble on? Some sort
of high-concept political performance art? They couldn’t be serious. But then I
realized: this was one of those flash mob rallies that I had been hearing so much
about on the internet—organized in support of Apple’s fight against the Federal
Bureau of Investigation. These people were indeed serious about iPhones saving
lives—all too serious.
Weirdly enough, this pro-Apple rally was prompted by a crime committed on the
other side of the country. Nearly three months earlier, in December 2015, a
Southern California couple who’d met online and bonded over shared dreams of
jihad packed their SUV with machine guns, pistols, and rifles and mounted a terror
raid on a nondescript nonprofit social service agency in the desert town of San
Bernardino. It was a gruesome crime. The pair killed fourteen and wounded
twenty-two before being gunned down themselves. The FBI, worried that the
couple had been working with others, wanted Apple to unlock an iPhone belonging
to one of the shooters. Apple had the ability to unlock the phone, but it refused—on
principle. Apple CEO Tim Cook decided to turn this minor confrontation with
authority into a major public relations spectacle—a high stakes drama in which
Apple played the hero and defender of the people, throwing its sleek (designed in
California, assembled in China) corporate body upon the wheels and gears of
America’s odious government surveillance machine. In a letter to Apple
customers, Cook claimed that providing even one-time access to the FBI in what
was clearly a legitimate criminal investigation would forever endanger iPhone and
cloud users around the world. Silicon Valley and big business—including Google,
Facebook, Amazon, AT&T, eBay, and Intel—sided with Apple and backed it in
court against the Department of Justice.
Phoning It In
The Electronic Frontier Foundation (EFF), along with other Silicon Valley
advocacy groups like Fight for the Future, backed Apple, too. For months, the
country’s best-known advocates for internet privacy whipped up a frenzy of online
support for Apple’s right to defy the FBI. Blog posts, tweets, hashtags, and even
specialized websites (like www.dontbreakourphones.org) proliferated. Hearing
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EFF and the others tell it, granting the FBI access to a single iPhone would mean
the end of privacy and freedom on the OK,internet:
I Accept they insisted that this was not just
a struggle to protect Apple’s proprietary software but a matter of venerable First
Amendment freedoms. The Appleniks were determined to protect the free-
thinking sanctums of the internet from government surveillance and control.
To make sure that this didn’t happen, EFF and others called on people to amass in
front of Apple stores around the country. Tim Cook’s heroic fight for our rights
needed the support of the online masses! So there they were, gathered behind the
barricades at the Fifth Avenue Apple store, on the frontlines of the internet privacy
wars.
Still, to judge from the pathetically low turnout, New Yorkers couldn’t care less
about the issue. And who could blame them? Who in their right mind would spend
their free time standing out in the cold rooting for a giant corporation, especially in
a case as cut and dried as this? Why shouldn’t the FBI get access to a murder
suspect’s iPhone, especially when they can just as easily access a suspect’s
financial, medical, and workplace records? And anyway, it’s not like Apple is
against government surveillance. How can it be, when it’s a willing participant in
the PRISM program, which lets the CIA and NSA siphon whatever data their spies
need directly from Apple’s data centers?
I lingered for a bit, watching as the protesters stamped their feet and clung to their
soggy pro-Apple signs. Then I left, and promptly forgot about it.
What brought this miserable event back to mind two years later? EFF’s handling of
the Cambridge Analytica and Facebook scandal.
Status Update
In March, thanks to a series of exposés, the world found out that Cambridge
Analytica, a shady British election data outfit funded by Robert Mercer, one of the
many rabid billionaire supporters of Donald Trump, had leveraged Facebook’s
built-in surveillance and influence platform to siphon off the private data of up to
eighty-seven million people and used that information to build sophisticated
psychological profiles on American voters.
A former Cambridge Analytica employee made the rounds, telling any journalist
willing to listen that this magic data was Trump’s secret election sauce. With it,
Trump’s backers built a bamboozle-bazooka that blew truth and democracy out of
the sky, tricking Americans into electing Donald Trump. Naturally, allegations of
nefarious Russian involvement were made as well. For good measure, some
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assiduous Russia spotters suggested that this same weapon was similarly deployed
in Britain against a hapless British electorate, weaponizing social media ads to turn
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good honest people into resentful racists and help Vladimir Putin push the Brexit
vote into “Yes” territory.
What did I just stumble on? Some sort of high-

concept political performance art?
Eager to blame Trump’s electoral victory on anything but themselves, the leaders
of America’s political establishment jumped on this news. This spring, Cambridge
Analytica became the reason du jour for how and why Americans lost their way.
And at the center of the scandal stood Facebook itself. It turned out that the
company had allowed Cambridge Analytica, as well as countless other shady
digital concerns, to harvest users’ personal data for their own designs. Thus
Facebook, too, was to blame for helping Trump and Russia hijack democracy.
Armed with this revelation, people duly freaked out, and a torrent of think pieces,
op-eds, and cable news panels followed. A #DeleteFacebook hashtag resistance
movement roared into existence, propelled by tech celebrities like Elon Musk and
Steve Wozniak, who valiantly declared to the media that they were deleting their
accounts.
Suddenly, everyone became aware that Facebook’s multibillion-dollar business

depends on spying on and profiling every one of its 2.2 billion users, and there
were glimmers of realization that the internet itself is a vast machine powered by
for-profit surveillance and influence. “Facebook’s Surveillance Machine,” read the
blunt headline of a much-retweeted New York Times op-ed detailing how the
company profiles and rents out its user base to advertisers and political campaigns.
All this outrage eventually lured Mark Zuckerberg out of his multimillion-dollar
man-cave in Silicon Valley and forced him to sweat it out in the spotlight, cheat
sheet in hand, as he was grilled by a joint Senate committee.
Freedom, Worked Over

While Zuckerberg squirmed and fidgeted on national TV, many became hopeful
that America was on the verge of maybe doing something meaningful to rein in
and regulate Silicon Valley’s surveillance business model. Perhaps at long last a
national political movement might coalesce around this important issue. But as
months passed and outrage dissipated and the movement against Facebook
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sputtered and stalled, people started to look around and wonder what happened.
And one thing became clear: the groups
OK, I that are usually the loudest and organize
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the most efficiently around issues of digital rights and privacy had gone strangely
silent during the Facebook scandal.
When previous internet privacy scandals hit—from the Apple dispute with the FBI
to Edward Snowden’s NSA leaks and even to obscure data gathering provisions in
anti-piracy laws—groups like the Electronic Frontier Foundation had been out on
the cyber-barricades, piling up the e-tires and setting them ablaze with memes and
gifs. They organized online protests, website blackouts, digital strikes, cyber
pickets, and even physical rallies: you name it, they did it all. And that made sense.
Because EFF’s leaders, together with their digital-rights comrades shoring up the
bulwarks of civil society as we know it, were supposed to be go-to defenders of the
people on the internet. They were professional activists, attorneys, and
technologists who did the hard, thankless work of keeping the internet free and
democratic.
And yet something broke down with the Facebook-Cambridge Analytica scandal.
On paper, this controversy looked to be a dream organizing opportunity for EFF
and its allies. Here was a Silicon Valley giant using its platform to spy on Americans
and subvert the workings of our democracy. EFF should have been leading the
charge. And yet in what was arguably the greatest public dispute concerning the
planet’s largest social networking platform, EFF was AWOL—nowhere to be found.
As I continued scanning the privacy group’s website in the weeks after Mark
Zuckerberg’s appearance on Capitol Hill, all the advice it offered to irate and
concerned Netizens seeking to preserve their privacy on Facebook were pro forma
notifications telling them to opt out of platform API sharing and download EFF’s
Privacy Badger ad blocker extension for Chrome—a browser made by Google, a
Silicon Valley surveillance giant.
The silence of digital advocacy groups was deafening, and even insiders began to
question their motives. April Glaser, a Slate tech reporter who had previously
worked at EFF, penned a heartfelt appeal for EFF and other tech watchdogs to do
something—anything—to protect the American people from Silicon Valley
surveillance. “Privacy advocates know how to build coalitions and campaigns.
They know how to make demands, and they know how to hatch an action agenda
fast,” she wrote. “But it didn’t happen over the March weekend that the
Cambridge Analytica news broke.” She wondered why the normally spunky and
combative advocacy groups—groups that she admired and worked for—were
sitting on the sidelines. “If the people whose job it is to care about digital privacy
can’t be bothered to push for laws to regulate how Facebook treats the data we give
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it,” she wrote, “why should Congress?”
OK, I Accept
Buying Silence
One likely explanation, Glaser reasoned, was that most of these groups depended
on funding from the very same corporations that they should be criticizing. Over
the past years, EFF has taken millions in funds from Google and Facebook via
straight donations and controversial court payouts that many see as under-the-
radar contributions. Hell, Google co-founder Sergey Brin’s foundation gave EFF at
least $1.2 million.
But the reason for EFF’s silence on the Facebook surveillance and influence
scandal goes deeper—into the business model of the internet itself, which from the
outset has framed user privacy as being threatened by ever-imminent government
censorship, as opposed to the protection of users and their data from wanton
commercial intrusion and exploitation. Put simply, the lords of the internet care
very little about user privacy—what they want to preserve, at the end of the day, is
their own commercial license against the specter of government regulation of any
kind.
Nevertheless, EFF and the computer industry’s self-regulating privacy lobby have
built up sterling profiles as premier defenders of individual freedoms and user
sovereignty online. EFF in particular has compiled an impressive file of news clips
and TV hits reinforcing its image as a civic-minded tech watchdog out there
agitating in the public interest. In one of his books, bestselling young adult science
fiction author and EFF staffer Cory Doctorow writes of the Snowden-like
protagonist swooning when he finds himself in the same Burning Man tent as the
millionaire founders of EFF, whom he describes as the “all-time heroes of the
internet.”
But the truth is that EFF is a corporate front. It is America’s oldest and most
influential internet business lobby—an organization that has played a pivotal role
in shaping the commercial internet as we know it and, increasingly, hate it. That
shitty internet we all inhabit today? That system dominated by giant monopolies,
powered by for-profit surveillance and influence, and lacking any democratic
oversight? EFF is directly responsible for bringing it into being.
To understand this anti-heroic tale, we have to start from the beginning—and

return to the hallowed creation of the Electronic Frontier Foundation, the spring
from which so much of today’s internet activism flows.
Cyber-Lobbying
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The idea for EFF was hatched in 1990OK,by

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two millionaires, software mogul Mitch
Kapor and John Perry Barlow, songwriter for the Grateful Dead and the wealthy
heir to a ranching estate in Wyoming. Barlow, who died earlier this year, is today
best known for penning the “Declaration of the Independence of Cyberspace,” a
barely comprehensible but much-applauded rant against the evils of government
influence over the internet that he typed out on an Apple laptop in some posh hotel
in Davos.
Kapor and Barlow had met on a digital message board platform run by cult hippy
entrepreneur Stewart Brand, of Whole Earth Catalog fame. The two of them traded
stories about government witch hunts and botched investigations into totally
normal cyberspace activities—things like hacking into computers and circulating
stolen source code. In short order, they realized that the fledgling personal
computer revolution desperately needed its own advocate in the trenches of
Washington. Cybervisionaries like them had to pool their resources and lead a
charge to keep the feds from meddling in the new and wonderful frontier of
freedom called the internet.
Put simply, the lords of the internet care very little

about user privacy—what they want to preserve, at
the end of the day, is their own commercial license
against the specter of government regulation of any
kind.
The eureka moment occurred on Barlow’s ranch in Wyoming. As he later

recounted it, Kapor’s “bizjet” was en route to San Francisco and was going to fly
over Wyoming anyway, so the tech mogul suggested they meet up. “He called me
from somewhere over South Dakota and asked if he might literally drop in,” wrote
Barlow. “So, while a late spring snowstorm swirled outside my office, we spent
several hours hatching what became the Electronic Frontier Foundation.”
EFF officially launched in the summer of 1990, a few months after the Kapor-
Barlow rendezvous in Wyoming. From its very first days, it had deep pockets and
big-name support. Apple cofounder Steve Wozniak offered generous financial
backing and joined the board of directors, which was already packed with
luminaries like Stewart Brand and Jaron Lanier, the inventor of virtual reality tech.
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EFF’s public relations was handled by Cathy Cook, a whiz who had done the same
work for Steve Jobs. In short order, this
OK, young hip watchdog group—which in
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Kapor’s words was launched to “find a way of preserving the ideology of the
1960s”—lined up lucrative corporate sponsorship from monopolies and giant
corporations like IBM, AT&T, Microsoft, MCI, and Bell Atlantic.
What did EFF actually do? At first, it defended a few hackers and phreakers from
the FBI in court, but its first true calling—as its A-list roster of corporate sponsors
indicated—was to set up shop as a lobbying clearinghouse for the nascent clutch of
powerful internet service providers. Or, as John Perry Barlow called it, “Designing
the Future Net.”
Sally Thurer
Privatizing and Privateering

The early 1990s were a wild time to be in the ISP game. The internet had emerged
out of a 1960s Pentagon project to develop computer and networking tech that
would allow the military to more effectively manage a global presence. It was a
smashing success, and by the end of the 1970s, the networking technology was
already being absorbed into operational military and intelligence communication
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systems. In the 1980s, the National Science Foundation was tasked with
extending this networking technology OK,into the civilian world. The agency’s plan
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was simple: it funded a high-speed national network that connected universities,
think tanks, and military contractors, subsidized the project until it became
commercially viable, and then spun the whole publicly funded infrastructure into
the private sector. This shotgun privatization process, which took place without
any real public discussion outside the telecom industry, created a handful of early
internet service providers and put down the physical infrastructure of the modern
internet that we use today.
EFF was there from the beginning, lobbying the federal government to make sure
that, once the privatization process ran its course, the government would stay out
of the way. Even though large ISPs were already consolidating their market power
and squeezing out smaller competitors, Kapor appeared in front of Congress to
argue against federal oversight, proposing a system of industry self-regulation
instead. He later laid out his—and EFF’s—vision for this privatized internet in
Wired magazine. “Private, not public . . . life in cyberspace seems to be shaping up
exactly like Thomas Jefferson would have wanted: founded on the primacy of
individual liberty and a commitment to pluralism, diversity, and community.”
Prank’s on You
To more effectively lobby this vision of the internet into being, EFF moved its HQ
from Cambridge to Washington, D.C. Despite all the loose Whole Earthish talk of
grassroots and decentralization, EFF’s board of directors decided not to invest
money and energy into local chapters, electing instead to shift all resources to its
new D.C. office. And why not? EFF’s founders were full of optimism and big plans
—and they would boldly take their agenda into the belly of the great regulatory
beast in D.C. They were going to reverse-engineer politics. They were going to
guide the development of the internet. They were also going to create a new “Net
party” that would ultimately abolish big government through grassroots, tech-
powered democracy.
Wired magazine profiled EFF’s move to Washington, D.C., and compared, with a
straight face, the organization’s lobbying for the increasingly powerful and
profitable internet service provider industry to the 1960s counterculture rebellion.
“In some ways, they are the Merry Pranksters, those apostles of LSD, who tripped
through the 1960s in a psychedelic bus named Furthur, led by novelist Ken Kesey
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and chronicled by Tom Wolfe in The Electric Kool-Aid Acid Test,” wrote Wired
journalist Joshua Quittner. “Older and
OK,wiser now, they’re on the road again,
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without the bus and the acid, but dispensing many similar-sounding bromides:
Turn on, jack in, get connected. Feed your head with the roar of bits pulsing across
the cosmos, and learn something about who you are.”
Leading EFF’s invasion of Washington, D.C., was Jerry Berman, who had been a
top ACLU attorney and founder of ACLU Projects on Privacy and Information
Technology—and someone, it seems safe to say, who has never in his life been
mistaken for a Merry Prankster. If EFF honchos wanted to reverse-engineer
political sleaze in the merely directional sense, they picked the right man. Berman
was a Beltway insider who in the 1980s was at the center of a push to turn the
ACLU into a big business lobby and an ally of intelligence agencies and right-wing
political interests. Among other things, the Berman-era ACLU defended Big
Tobacco from regulations on advertising and worked with the National Rifle
Association to fight electronic collection of arrest data by the Department of
Justice for background checks to deny firearms licenses. Among Berman’s personal
achievements: working with the CIA on an early version of a bill that criminalized
disclosing the names of CIA agents—a law that was later used to prosecute and jail
CIA officer John Kiriakou, who blew the whistle on the Agency’s use of
waterboarding as a torture and interrogation technique.
Far from incidentally, Berman also helped craft the 1986 Electronic
Communications Privacy Act, a controversial law that gave the government power
to grab electronic metadata from cellphone calls, email, and other digital
communications without a warrant, which is now routinely used to collect user
data from companies like Google, Twitter, and Facebook. “This is a very good
bill,’’ Berman remarked at the time.
Freedom to Surveil
Berman brought his well-honed lobbying acumen to EFF. His signature
achievement had been collaborating with the FBI to draft and rubber-stamp a law
that expanded FBI surveillance into the digital telecommunications infrastructure.
Known as the “Communications Law Enforcement Assistance Act”—or CALEA—
the 1994 law required that telecommunications companies install specialized

equipment and design their digital facilities in a way that made it easy to wiretap.
The legislation gave law enforcement agencies the same level of access to new
digital networks that they enjoyed in the era of the landline.
this
Whenpolicy.
EFF’s role in crafting this surveillance law came out, outraged members of
its cyber-libertarian base cried foul. EFF, they’d been led to believe, was created to
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push back against government control of the internet, and yet here it was working
with the FBI to push through a law mandating government surveillance of all
digital infrastructure. As Wired explained, “many of the group’s grassroots backers
were disgusted by what they saw as spineless pandering. . . . Some of these
people’s worst fears about the capital’s corrupting influence seemed to be
confirmed.”
In reality though, the outrage stemmed from a basic confusion about what EFF was
created to do. EFF emerged as a lobby for the budding internet industry, and with
the introduction of wiretap law, Berman and his colleagues performed their job
perfectly: placating law enforcement and Congress while getting the best deals
they could for telecoms and ISPs. In the argot of the industry, Berman’s work in
massaging CALEA through the legislative process was a feature, not a bug.
But because EFF had so successfully sold itself as a countercultural guardian of

digital liberty, the group’s support for a surveillance bill triggered a crisis among its
membership. To resolve it, Jerry Berman was given the boot, whereupon he
immediately set up his own lobbying outfit, the Center for Democracy and
Technology. In 1995, EFF moved its HQ again: this time to San Francisco, as far
away from Washington D.C. as it could get in the continental United States, in the
center of the then-raging dot-com boom.
Digitizing the Astroturf

In San Francisco, EFF continued lobbying for ISPs, but that side of the operation
became less prominent. Still, the tech industry was poised on the verge of a
revolutionary shift in both governing business models and cultural rationales, and
as part and parcel of that transformation, the ever-nimble leaders of the group
reinvented the online privacy crusade to suit a new set of corporate prerogatives. In
other words: you can take the industry lobbying group out of K Street, but you can’t
take K Street out of its organizational DNA.
As the 1990s came to a close, the privatized and deregulated ISP industry that EFF
had helped bring into being—and that EFF had helped portray as a system of
freedom and cyber-egalitarianism—had molted and merged into several giant
telecommunications conglomerates which would form the basis of today’s
monopolistic internet service industry. At the same time, a new crop of internet
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companies began to emerge—next-generation platform giants like Google and
Facebook. OK, I Accept
These new companies represented a new kind of business. They did not make their
money by charging for their services. Instead, they offered their platforms for free
—a suite of tools that allowed people to communicate and create content: email,
search, video and photo apps, word processing and office systems, and social
media. And while people were on their free platforms, these companies sucked up
every bit of personal data people left behind and mined it for information in an
attempt to predict their behavior and generate targeted ads.
Search and Destroy

Companies like Google and Facebook made money through your internet
searches, through the time you spent sharing and reading news articles and
personal posts and photographs or watching homemade videos and Hollywood
blockbusters. These companies depended on all this content, but they created
none of it. Indeed, without other people’s labor—and the collective cultural labor
of generations and generations of “content creators” who put together the movies,
literature, photographs, and songs that made up the bulk of the material on the
internet that people shared and read—they would not have a business. There
would be nothing to search or watch.
On a fundamental level, these companies were like tapeworms—digital parasites

that sunk their hooks into our networks of culture distribution and siphoned value
as quickly as possible for themselves, without giving anything back to the people
who produce culture. And just as these new platforms would asphyxiate without
other people’s creative output, they wouldn’t stand a chance of turning a profit
without a massive surveillance campaign on their own users. Naturally, as these
companies grew and matured, two threats to their business loomed large:
copyright and privacy. To make sure these never became a problem, Silicon Valley
built up a powerful lobbying and public relations machine.
The truth is that EFF is a corporate front. It is

America’s oldest and most influential internet
business
Heads Up: Welobby.
recently updated our privacy policy to clarify how and why we collect
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Google led the pack. It cobbled together one of the biggest corporate lobbying
operations in Washington. Its main OK, I Accept
lobbying shop, located in a nondescript office
building on 25 Massachusetts Avenue NW, just three blocks from Capitol Hill, has
as much floor space as the White House. In terms of cold hard cash, Google’s
lobbying division—lead by Susan Molinari, a former Republican member of
Congress from New York—has outflanked even the most infamously profligate
corporations. The company spends more than Exxon Mobil and Lockheed Martin.
But Google’s declared lobbying expenditures only paint a small part of the picture.
The company has become a master of influence on multiple levels, hiring key
political insiders from both the Republican and Democratic Parties, funding
academics, economists, journalists, bloggers, privacy organizations, and a wide
range of politically connected nonprofits. Electronic Frontier Foundation, New
America Foundation, the Brookings Institution, Clinton Foundation, Public
Knowledge, the National Hispanic Media Coalition, and Reporters Without
Borders are just a few of the dozens of groups that have taken money from Google.
The company also hooked into the far-right libertarian influence networks set up
by Charles Koch, petro-billionaire and co-owner of Koch Industries—including
providing support to Cato Institute and the Competitive Enterprise Institute, a
Koch propaganda outfit that has spent the past three decades waging war on
climate change science and shilling for oil and tobacco.
As Google and other Silicon Valley companies began to use their wealth and power
to craft legislation and influence public debate, EFF emerged as a leading partner.
And EFF’s 2004 defense of the launch of Gmail offered a perfect opening for this
new phase of the group’s lobbying career.
Privacy from Government

Google was already a big name in search when it launched Gmail, an email service
that came with one free gigabyte of storage space. At a time when competitors like
Yahoo and Hotmail offered just a few megabytes of storage, putting a whole gig in
a user’s hands seemed, well, almost revolutionary. It feels silly to admit it now, but
back then it looked as though Google was defying the basic laws of economics—
that it was just giving stuff away for free. For true believers in the cyber-utopian
creed, this appeared to be proof that the internet was fundamentally rewiring the
way business was done and money was made. It seemed magical.
personal
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Gmail’s free pre-public release invites were in such high demand that they drew
$200 bids on eBay. Alongside fanboy enthusiasm, though, there was also fear—
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and the specter of a backlash. Google’s big data giveaway seemed like charity, but
of course it wasn’t. There was a very clear business logic to it. In return for all this
online storage space, Google got something even more precious: permission to spy
on and analyze the contents of your email and, ultimately, the ability to tie that
personal information to your internet search history and browsing habits and link
them to your real-world identity.
Naturally, a good number of people freaked out. And a few days after Gmail went
live, a coalition of civil liberties groups sent a letter to Google founders Larry Page
and Sergey Brin, asking them to put the email service on hold until the privacy
concerns could be addressed and fixed. Thirty-one organizations signed that letter
—but EFF wasn’t one of them. The biggest, most influential digital advocacy group
was nowhere to be seen.
At least, not at first. As the scandal heated up, EFF took an impassive stance. In a
blog post, an EFF staffer named Donna Wentworth acknowledged that a
contentious debate was brewing around Google’s new email service. But
Wentworth took an optimistic wait-and-see attitude—and counseled EFF’s
supporters to go and do likewise. “We’re still figuring that out,” she wrote of the
privacy question, conceding that Google’s plans are “raising concerns about
privacy” in some quarters. But mostly, she downplayed the issue, offering a
“reassuring quote” from a Google executive about how the company wouldn’t
keep record of keywords that appeared in emails. Keywords? That seemed very
much like a moot point, given that the company had the entire emails in their
possession and, according to the contract required to sign up, could do whatever it
wanted with the information those emails contained.
Google did what any other huge company caught in

the crosshairs of a prospective regulatory crusade
does
in our political system: It mounted a furious and
sleazy public relations counteroffensive.
EFF continued to talk down the scandal and praised Google for being responsive to
its critics, but the issue continued to snowball. A few weeks after Gmail’s official
launch, California State Senator Liz Figueroa, whose district spanned a chunk of
Silicon Valley, drafted a law aimed directly at Google’s emerging surveillance-
based advertising business. Figueroa’s bill would have prohibited email providers
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like Google from reading or otherwise analyzing people’s emails for targeted ads
unless they received affirmative opt-in OK,consent
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conversation—a difficult-to-impossible requirement that would have effectively
nipped Gmail’s business model in the bud. “Telling people that their most intimate
and private email thoughts to doctors, friends, lovers, and family members are just
another direct marketing commodity isn’t the way to promote e-commerce,”
Figueroa explained. “At minimum, before someone’s most intimate and private
thoughts are converted into a direct marketing opportunity for Google, Google
should get everyone’s informed consent.”
Google saw Figueroa’s bill as a direct threat. If it passed, it would set a precedent
and perhaps launch a nationwide trend to regulate other parts of the company’s
growing for-profit surveillance business model. So Google did what any other huge
company caught in the crosshairs of a prospective regulatory crusade does in our
political system: it mounted a furious and sleazy public relations counteroffensive.
Google’s senior executives may have been fond of repeating the company’s now
quaint-sounding “Don’t Be Evil” slogan, but in legislative terms, they were making
evil a cottage industry. First, they assembled a team of lobbyists to influence the
media and put pressure on Figueroa. Sergey Brin paid her a personal visit. Google
even called in the nation’s uber-wonk, Al Gore, who had signed on as one of the
company’s shadow advisers. Like some kind of cyber-age mafia don, Gore called
Figueroa in for a private meeting in his suite at the San Francisco Ritz Carlton to
talk some sense into her.
And here’s where EFF showed its true colors. The group published a string of blog
posts and communiqués that attacked Figueroa and her bill, painting her staff as
ignorant and out of their depth. Leading the publicity charge was Wentworth, who,
as it turned out, would jump ship the following year for a “strategic
communications” position at Google. She called the proposed legislation “poorly
conceived” and “anti-Gmail” (apparently already a self-evident epithet in EFF
circles). She also trotted out an influential roster of EFF experts who argued that
regulating Google wouldn’t remedy privacy issues online. What was really needed,
these tech savants insisted, was a renewed initiative to strengthen and pass laws
that restricted the government from spying on us. In other words, EFF had no
problem with corporate surveillance: companies like Google were our friends and
protectors. The government—that was the bad hombre here. Focus on it.
Eyes on the Prize
this policy.
A year before EFF went to the mat toOK, I Accept

protect Google’s surveillance business from
“anti-Gmail” legislation, it mounted an honorable legal and public relations
campaign against President George W. Bush’s Patriot Act. EFF properly pointed
out that the law was a threat to civil liberties, and it rightly criticized government
internet surveillance initiatives launched in the wake of the September 11 terrorist
attacks like the Total Information Awareness program, a predictive policing
technology developed at the Pentagon’s Defense Advanced Research Projects
Agency, and later handed over to the National Security Agency, among others.
EFF worried that these technologies would allow the government to turn the
internet into a surveillance machine and compile dossiers on millions of
Americans with unprecedented ease—again, an eminently justified source of
worry, as legions of NSA leaks have since demonstrated.
But when it came to Google and private surveillance, EFF took a totally different
line. Corporate surveillance and government surveillance were totally distinct
issues, according to the organization. But for ordinary net users, the distinctions
were not so clear. Google assembled dossiers and built predictive profiles of its
users in order to more effectively sell them products. To do that, the company
vacuumed up every morsel of data that people left behind on its platforms. The
NSA’s various surveillance programs, including Total Information Awareness, did
the same, but ostensibly to find and detain America-hating bad guys. The
objectives differed, but the data and technology was more or less identical. And
anyway, the NSA depended on companies like Google to build services and attract
users—to create and run the information infrastructure that the agency could tap
for intel.
Chris Jay Hoofnagle, UC Berkeley law professor and former West Coast director of
Electronic Privacy Information Center—a Silicon Valley watchdog that actually
watchdogs Silicon Valley—pointed out in testimony at California’s Senate Judiciary
Committee hearings on email and privacy that Google’s data collection was just a
corporate version of what the NSA was doing—an extension of one big private-
public surveillance apparatus. To him, the failure to address private surveillance
had a direct consequence on the effort to rein in government surveillance. The two
were intertwined. As he told the committee,
allowing the extraction of this content from email messages is likely to have
profound consequences for privacy. First, if companies can view private messages to
pitch advertising, it is a matter of time before law enforcement will seek access to
detect criminal conspiracies. All too often in Washington, one hears policy wonks
asking, “if credit card companies can analyze your data to sell your cereal, why can’t
personal data.
the FBI mineBy using
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terrorism?”
this policy.
OK,
In the end, California’s efforts to pass anI Accept
internet privacy bill failed. Following
intense pressure and bullying from the well-heeled Silicon Valley lobbying sector,
Figueroa’s legislation died in committee.
In the public sphere, meanwhile, EFF’s vision won out. Concerns about private
surveillance were pushed out of the spotlight, crowded out by utopian
proclamations about how companies like Google and Big Data would change the
world for the better. Privacy would come to mean “privacy from government
surveillance.” And corporations? Corporate intentions were assumed to be good—
or, at worst, neutral. Corporations like Google didn’t spy; they “collected data”—
they “personalized.”
Sally Thurer
A Net Wash
In the coming years, EFF would replicate the public relations strategy it used
during the
personal Gmail
data. scandal
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this legislative battle after another, EFF would focus only on government
surveillance, redirecting people’s concerns to an arena of conflict that posed no
threat to the great Silicon Valley data-and-dollars
OK, I Accept grab. If there was a privacy
scandal, or a bid to remedy such a scandal via regulation or legislation, EFF would
inevitably find some kind of fault with it. EFF’s brain trust espied slippery slopes
leading to government totalitarianism everywhere—and, on the other side of the
coin, the unshakeable commercial prerogatives of an industry brilliantly
maximizing user ease and convenience at every turn. As for tools to increase
privacy, it only had one: encryption. Forget law—only technology could truly
safeguard the people.
This strategy was on full display following Edward Snowden’s NSA leaks, which
showed that Silicon Valley giants like Google, Facebook, Apple, and Microsoft had
knowingly turned their platforms and services into feeder tubes for government
spies. How did EFF respond? By sidestepping the issue of corporate spying
altogether and focusing narrowly on government surveillance. Of course, the tack
wasn’t restricted to EFF. Other groups, including respected left-leaning
organizations, would end up parroting the same rhetorical tactics and adopting its
pro-business libertarian worldview: private is good; government is bad.
Take Reset the Net, a digital protest campaign launched in the wake of Snowden’s
disclosures by Fight for the Future, a tech-backed advocacy group and frequent
EFF partner. With Reset the Net, Fight for the Future promised to kick off global
privacy movement that would wipe surveillance off the face of the internet. “There
are moments in history where people and organizations must choose whether to
stand on the side of freedom or tyranny,” declared one of organization’s founders.
To her, Reset the Net was that moment—a day of action when “the internet will
show which side it’s on.” It was lofty rhetoric, and Reset the Net snagged a lot of
press and support. Edward Snowden backed it, as did Twitter, Dropbox, Google,
Mozilla, and a range of other tech companies. Industry groups like EFF signed on,
as did progressive organizations like Greenpeace, Code Pink, and the American
Civil Liberties Union.
But what, exactly, did Reset the Net want to do? Well, not much of anything. The
group didn’t call for legislation to limit the NSA’s surveillance mandate, nor did it
want to elect politicians who’d put a stop to America’s digital dragnet. The
organizers weren’t interested in chasing politics or social movements, and they
didn’t have anything bad to say about Silicon Valley’s for-profit surveillance
business practices. The U.S. government was the real enemy, and the government
could only be stopped with powerful encryption tools—tools that would be built
and provided by private companies like Google. “Today as part of Reset the Net,
tens of thousands of internet users and the internet’s largest companies rallied to
this policy.
protect billions. . . . Reset the Net demands that web services take concrete steps to
protect their users from governmentOK, snooping,
I Acceptwhile encouraging everyday
internet users to adopt free and open source privacy tools,” declared a Fight for the
Future press release. Even other industries—including phone companies like
AT&T and Verizon—couldn’t be trusted. Silicon Valley was our friend—the
ultimate guarantor of our privacy. “Don’t trust carriers. Buy your Android phone
directly from Google,” warned the group. Yes, trust the Android—a phone
designed by Google to enable maximum surveillance.
Privacy activists working with Silicon Valley to fight government surveillance? It

was quite a thing to behold. It was like watching antiwar protesters marching hand
in hand with Lockheed Martin executives to fight Pentagon missile defense.
Such contradictions weren’t entirely lost on Silicon Valley’s cadre of privacy

advocates, at least in their more unguarded moments. These figures acknowledge
that Silicon Valley surveillance poses problems for the privacy of users—how could
they do otherwise?—but they typically insist that the first-order priority among tech
concerns is to curb government surveillance. “I definitely don’t contest that there
are myriad awful corporate practices that violate privacy rights. But what we have
right now is a popular front of sorts versus government surveillance, and we don’t
have a shot at curtailing such surveillance without the support of a substantial flank
of companies,” David Segal, the head of Demand Progress, a leftish political
organization that had taken money from Google and was part of Reset the Net,
explained to me. “We are all very worried about the likely fleeting window of
sustained interest in [government] surveillance and want to exploit it while it’s
available.”
The Right to Piracy

In 2011, two similar anti-piracy bills were introduced in the House and Senate: the
“Stop Online Piracy Act” and the “PROTECT IP Act,” popularly known as SOPA
and PIPA. SOPA was drafted for House debate by Rep. Lamar Smith (R TX). PIPA
was introduced by Vermont Democratic Senator Patrick Leahy.
Corporations like Google didn’t spy; they “collected

data”—they “personalized.”
The
this two bills did not alter copyright law, but sought to strengthen enforcement of
policy.
existing laws in the internet era. They would give the Department of Justice
enhanced power to shut down sites thatOK, Idistribute
Accept pirated content, and would
place greater responsibility on companies like Google, Facebook, and eBay for
pirated music and videos and counterfeit goods distributed and sold through their
platforms.
“The premise of copyright law is that the author of a creative work owns and can
license to others certain exclusive rights—a premise that has served the nation well
since 1790. Congress has repeatedly acted to improve enforcement provisions in
copyright law over the years, including in the online environment. SOPA is the
next step in ensuring that our law keeps pace with infringers,” explained Maria
Pallante, who served as register of copyrights under Obama, in testimony
supporting the legislation.
To be clear, infringement, including at the criminal level, has been around for
centuries and we will never be rid of it entirely, but this does not mean that
Congress should fail to respond. Indeed, when infringers blatantly distribute,
stream, and otherwise disseminate copyrighted works on the internet, they often do
so because they have no expectation of enforcement. Unfortunately, the more these
kinds of actions go unchecked, the less appealing the internet will be for creators of
and investors in legitimate content.
SOPA and PIPA were backed by a broad coalition of business groups and interests,
including the recording industry. They were was also backed by just about every
major labor group—the Screen Actors Guild; Songwriters Guild of America; AFL-
CIO; American Federation of Musicians; American Federation of Television and
Radio Artists; Bakery, Confectionery, Tobacco Workers, and Grain Millers’
International Union; Communication Workers of America; and Directors Guild of
America, among others.
SOPA and PIPA were not perfect, but the defense of culture workers online had to
start somewhere. There had to be a way of building an internet ecosystem that
didn’t just enrich media monopolies and multimillionaire celebrities and cheat the
creative working class out of their labor. There had to be a way of paying the people
who created the bulk of our culture: musicians, photographers, filmmakers,
authors. But as it turned out, these topics were taboo. They were not up for
discussion. Because Silicon Valley, despite whatever lip service it pays to the idea
of individual creativity and “thinking different,” wanted to do no such thing.
personal
Facebook,data. By using
Yahoo, our site,
Amazon, youMozilla,
eBay, acknowledge that
Reddit, you have
PayPal, read and
Twitter, and scores
understand
of
this policy.
smaller tech companies went into battle mode to oppose SOPA and PIPA. They
framed the legislative dispute as a fight between freedom and totalitarianism and
OK, I Accept
launched a frenzied public relations and lobbying campaign to kill the laws. The
overheated rhetoric of the anti-SOPA tech moguls resembled nothing so much as
the take-no-prisoners agitprop of the National Rifle Association—right down to the
claim that, even if a regulatory curb on the criminal abuse of tech platforms were to
pass, it would prove useless in execution and enforcement, just as Wayne LaPierre
and Oliver North insist that curbs on untrammeled gun ownership would do
precisely nothing to curb determined criminals from flouting such regulations.
Once more, Google was in the vanguard of the corporate struggle. Company execs
and flaks opposed the law, claiming that it amounted to a form of government
censorship that would turn America into an authoritarian country like China, Iran,
or Libya. “Imagine my astonishment when the newest threat to free speech has
come from none other but the United States. Two bills currently making their way
through congress—SOPA and PIPA—give the U.S. government and copyright
holders extraordinary powers,” wrote Google cofounder Sergey Brin on his
personal Google+ page. “I am shocked that our lawmakers would contemplate
such measures that would put us on a par with the most oppressive nations in the
world.” With Google laying down its dinosaur-scale footprint, a swarm of Silicon
Valley front groups joined in fighting the bills. It was a textbook influence
campaign.
EFF once more supplied the lobbying muscle in the anti-SOPA fight—only this
time, it was joined by a number of newer Silicon Valley corporate fronts: Fight for
the Future, Demand Progress, Public Knowledge, and the New America
Foundation. Joining this coalition was also a host of retrograde right-wing
corporate groups like the Koch-backed Competitive Enterprise Institute, which
had recently reinvented itself as pro internet freedom.
Postideological Alarmism
Neck-deep in Silicon Valley funding, it didn’t matter if these groups were affiliated
with the Democratic Party or the Koch Republican lobbying network. They all
pushed slight variations of the same old business rhetorical strategy, turning
people against the regulation of powerful corporate interests by invoking the

specter of Big Brother authoritarianism.
Heads Up: We
And despite recently
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talking about blacklist legislation being debated by the U.S. House of
Representatives this week,” warned an EFF communiqué that described SOPA and
OK, I Accept
PIPA as “censorship,” no doubt pleased to be echoing the rhetoric of major EFF
donor Sergey Brin on the issue. To CEI, meanwhile, the bills represented “massive
government overreach” that gave the bureaucrats harrowing levels of power to
censor the internet “without a hearing or trial.” Demand Progress described SOPA
as “internet censorship legislation” that will “ruin so much of what’s best about the
internet” and “put people in prison for streaming certain content online.”
Rebecca MacKinnon, then a senior fellow at the New America Foundation, backed
by generous funding from Google consigliere Eric Schmidt, also followed Brin’s
lead and compared the laws to Chinese censorship, describing them as the
creation of a “Great Firewall of America.”
It was like watching antiwar protesters marching

hand in hand with Lockheed Martin executives to
fight Pentagon missile defense.
Fight for the Future, a spunky online activist group which had emerged specifically
to fight this legislation, called SOPA and PIPA “dangerous” and claimed that it
would “stifle free speech and innovation.” Unsurprisingly, an astroturf website set
up by Fight for the Future, AmericanCensorship.org, was promoted by Brin. And
sure enough, the site tirelessly roused the specter of Big Brother-style
totalitarianism taking root under a SOPA regime by claiming that new anti-piracy
laws would give the government extraordinary new powers to jail people for
sharing unlicensed music online.
All these groups joined together in a national “blackout” action against SOPA,
getting websites to pledge that they would turn off their services for one day to
protest the law. It was called a “SOPA Strike” and had the look of a spontaneous
grassroots campaign, but the whole thing was closely planned and coordinated
with industry leaders including Google, Reddit, and Mozilla. Indeed, many of the
groups that became big players in business-friendly digital advocacy, including
Fight for the Future and Demand Progress, came to life as part of the industry’s
fight against anti-piracy legislation.
The SOPA Strike was incredibly successful. Fight for the Future claimed that
75,000 sites went dark on January 18, 2012. Wikipedia, WordPress, Reddit,
Twitter, Tumblr, Dropbox, Mozilla, and Google all participated in one way or
another. Google put a black stripe over its logo as a visual protest against
government censorship. Wikipedia, one of the most visited sites in the world, took
this policy.
a much more drastic measure: it went dark for twenty-four hours, redirecting
visitors to a black background with aOK,
bitIof scary white text:
Accept
>Imagine a World Without Free Knowledge

>For over a decade, we have spent millions of hours building the largest
encyclopedia in human history. Right now, the U.S. Congress is considering
legislation that could fatally damage the free and open internet. For 24 hours, to
raise awareness, we are blacking out Wikipedia.
EFF strutted and preened and congratulated itself. “In a few generations, the
wildness of the web would have been extinguished. Instead, we fought back,”
wrote an EFF staffer. “EFF, Fight for the Future, and Demand Progress [along
with] tech companies big and small worked together to orchestrate a digital protest
so powerful, it changed the game in DC and around the world. The internet
showed Washington that it could and would defend itself.”
Following the event, EFF and its younger, hipper cousins like Fight for the Future
were the toast of Silicon Valley. “They helped mobilize the community of
technology companies and public interest groups and ensured our collective focus
was on informing the legislative process,’’ Alex Fowler, then head of privacy and
public policy for the Mozilla Foundation, told the Boston Globe.
But not everyone was pleased. An increasingly vocal group of musicians and
recording artists criticized companies like Google for purposely turning a blind eye
to pirated music and videos hosted on their platforms to boost views and
advertising revenue. David Lowery, former frontman for the indie bands Camper
Van Beethoven and Cracker and one of the earliest and most incisive critics of
Silicon Valley’s piracy politics, argues that the industry’s laissez-faire posture on
piracy is part of a very deliberate business strategy to increase page views and ad
clicks—and drive labor costs to the vanishing point. Lowery condemned groups
like EFF and Fight for the Future as Silicon Valley front-groups that masquerade as
edgy and enlightened defenders of freedom on the internet. “They’re spreading
the hyperbolic claims and outright misinformation that Google and other Silicon
Valley firms can’t be seen to be spreading,” Lowery told me. He called these
groups “Russian-nesting-doll, black box nonprofits,” and pointed out that their
funding structure is designed to obfuscate Silicon Valley’s involvement.
In the end, Silicon Valley’s fight against SOPA worked. The law died on the vine in
early 2012, just a few months after it was introduced in Congress. “The bills in the
House and Senate, backed by the entertainment industry, encountered a
surprising defeat after a vast alliance of chip makers, internet service providers,
rival Web companies and digital rights groups cast them as a means of censoring
this policy.
the Web,” reported the New York Times, remarking that the digital campaign was so
successful lobbyists considered it the beginning
OK, I Accept of a new era of internet-based
political movements: “lobbying 2.0.” Lobbying 2.0—shilling for corporations, but
on the internet! We’ve sure come a long way.
The defeat of SOPA was naturally a time of great celebration for EFF. The group’s
campaign was successful, effectively short-circuiting any possible discussions
about using copyright and anti-piracy enforcement to make sure people aren’t
getting exploited. From 2012 forward, the bid to license and preserve online
copyright has been monstrously, and misleadingly, framed as struggle against
totalitarianism, conflating Silicon Valley’s right to pirate content at will with liberty
and freedom for the masses. As such, the SOPA battle was just one more successful
application of EFF’s rhetorical public relations strategy: frame any attempt to
regulate Silicon Valley power with totalitarianism, all while conflating the interests
of regular internet dwellers with the plutocrats who own the internet.
Cult Deprogramming
As I write, it’s been two months since the Facebook surveillance scandal erupted.
EFF says it’s figuring things out about Facebook, but it looks like it’s moved on—or
rather, returned to form with a battery of communiqués raising fresh alarms about
government data collection and pushing for encryption.
And that brings me back to former EFF staffer April Glaser. In her appeal to EFF
and digital advocacy groups to lead the way in regulating corporate surveillance,
she admitted that private spying has never been a big issue for this group. “The
longtime focus of privacy advocates on government surveillance, not corporate
surveillance, is one explanation. That probably has to do with the founding
principles behind a lot of internet advocacy, which has its origins in libertarian and
anti-regulation philosophies,” she wrote. “As a result, a lot of complaints from
privacy advocates over the years have focused on how government surveillance is
harmful to our constitutional rights and less on how they might be harmful to our
communities.“
Lobbying 2.0—shilling for corporations, but on the

internet!
What’s
this amazing is that this comes to Glaser as a surprise. Imagine someone
policy.
working for the Cato Institute or FreedomWorks or the American Enterprise
OK, I Accept
Institute lamenting that the organization isn’t doing something to help regulate the
Koch family’s petro-chemical empire. Or imagine a lobbyist at the now- defunct
Tobacco Institute professing shock over the revelation that the organization
defended R. J. Reynolds’s right to target kids with Camel ads. Corporate lobbying
happening inside a lobbying group? Who knew?
But that’s what EFF is all about: it’s a Silicon Valley corporate front group, no
different than the rest. The only thing unique about it is how successful it’s been in
positioning itself as a defender of the people—so successful, in fact, that even the
people who work for it believe it. The fact that EFF has been able to pull it off of for
so long shows the kind of immense power that Silicon Valley wields over our
political culture. When we think about technology and the Internet, there’s no left
or right. There’s just Google and Facebook.
Yasha Levine is an investigative journalist and a former editor of Moscow-based

newspaper The eXile. He is the author of Surveillance Valley: The Secret Military
History of the Internet.
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14/09/2018 All EFF’d Up | Yasha Levine

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A year before EFF went to the mat toOK, I Accept

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The Right to Piracy

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people against the regulation of powerful corporate interests by invoking the

It was like watching antiwar protesters marching

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Yasha Levine is an investigative journalist and a former editor of Moscow-based

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