Thursday, January 5, 2012

The EFF's Own Chilling Breeze

By Julian Noble
Wednesday, January 4, 2012

To stand up and fight to protect lawful online activity from legal threats isn’t for the faint of heart… it takes big ones.

The Electronic Frontier Foundation has a two decade history of taking on cases that set important precedents to protect rights in cyberspace. This is an organisation which has not been afraid to file lawsuits against the CIA, the US Department of Defence, the Department of Justice and other agencies, as well as major corporations like Apple and AT&T.

Recently, however, the EFF seems to be blowing some chilly air of its own and their source of gumption seems to have shrunk a little. They are no strangers to the pernicious effects of ‘self-censorship’; this is the ‘chilling effect’ where discussion, debate and activities are effectively destroyed before they even get started. It is the fear to speak freely or the fear to participate, because of vague legal threats or ill-defined laws. It is the uncertainty about where one’s rights begin and end, and the fear of crossing an invisible line. It is the providers closing or restricting customer accounts; not based on specific legal requests but based on some fuzzy margin even less well defined than the law itself.

Let’s see how the EFF explains its retreat from using one specific technology: Bitcoin, which is not inherently illegal and qualifies more than most as a frontier technology.

EFF and Bitcoin (June 20, 2011)

What then should we make of this statement from the EFF which reveals a primary motivator for avoiding a particular technology is legal uncertainty? At first glance this might make some sense, as ‘understanding the legal issues’ seems like a prudent first step, but you only need to step back into the EFF’s early history to see that their very birth was not just taking place in, but in a way inspired by an era of just this sort of uncertainty regarding electronic frontiers. Take this quote from ‘A Not Terribly Brief History of the EFF’.
"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 data crime."
This surely shows that the legal environment was not only uncertain – but positively muddy and misunderstood even by those tasked to investigate and enforce the law.

Arguably, law enforcement lags in their understanding of new technology just as much today. The ‘ambiguous nature of law in Cyberspace’ was almost a defining feature of the landscape, and back then, it didn’t stop the EFF from riding out into it; legal guns at the ready, if not blazing.

The EFF about-face regarding Bitcoin came shortly after a flurry of publicity regarding US Senators Schumer and Manchin raising their concerns about the use of bitcoins for illegal purchases on the silk road tor website. The senators mischaracterised bitcoin as “untraceable”. Senators seek crackdown on “Bitcoin” currency

In contrast to this sort of reaction, we have at around that time, a more measured opinion from Joseph Skocilich at US business and intellectual property law firm ‘Adler Vermillion & Skocilich LLP’
Innovation and Legal Panic—Bitcoin
"Boringly, the realistic legal issues facing Bitcoin are likely to be limited to those businesses that service the Bitcoin economy as a “money services business”, such as money transmitting, processing and foreign currency exchange. Laws which happen to be in great need of reform, as they are currently hindering innovation in the online payment industry. Simply using Bitcoin as payment for goods and services doesn’t create any legal issues beyond that of any other market exchange, where you and your business are free to accept payment in whatever form you choose."
Various organisations have been approached by the bitcoin community with offers of assistance as far as accepting bitcoin in their commercial operations, or as a low fee method of accepting donations. Some of their reactions are revealing:

A member of the SENS foundation website team cited the “possibility of BTC being made illegal in the US”. A statement from someone at Kiva.org (a technical person, not a legal rep) was particularly illustrative of the chilling effect:
"We talked to some fellow non-profits, and the lawyer from one particular organization gave us some strong reasons to not move forward. We then talked some with our lawyer, who cautioned against doing anything that could distract from Kiva’s core mission by bringing about controversy."
When the founders of Humble Bundle were approached they replied:
"Hey there, we have talked with the EFF and an attorney about this and it is very complicated to say the least. The stakes are very high and there are some extremely serious unknowns about using Bitcoins. While the concept is great, we are not prepared to be its first major test case, after listening to the advice we’ve been given."
How many such organisations have looked at the EFF’s stance on this and taken their self-censorship lead?

In some cases – there may be specific legal roadblocks with regards to adopting a new technology such as this. Charities in particular are highly regulated. Some government agencies such as the NGO Affairs Bureau in Bangladesh, require that each foreign donator fill out and sign a specific form giving authorisation for the donation, which obviously puts a damper on micropayment donations using a somewhat privacy-enhancing electronic payment system.

But the EFF’s published concerns are less specific than that.

If any of their fear is based on a perceived conflict of interest for having a financial interest – they should note that ‘holding bitcoin’ is not a prerequisite for using them as a payment mechanism. There are services which allow merchants or non-profits to receive their bitcoins in USD, avoiding any interim volatility or any position as a speculator.

Whether or not you see the value or likelihood of success for a technology such as bitcoin, it’s clear that one of the most pressing impediments to adoption is not violation of any particular law, but general legal ‘fear’. What does it say to the merchants and charities of the world, when even the EFF, the giant slayer, cites vague legal concerns in it’s refusal to even use a technology in a relatively passive manner?

For the bitcoin community, a sense of betrayal doesn’t seem entirely unreasonable here. It is not that the EFF should be expected to ‘endorse’ bitcoin – but that the EFF should be perfectly happy to use frontier technologies within the space where they are not specifically legally prohibited, and be willing to work with the community in helping users (or at least not discouraging them) as they move up close to the legal lines. Did the EFF need to eschew all encryption when defending our rights to use it?

It’s been 6 months since the EFF’s public statement of legal confusion. That’s a long time in the fast-moving technology world for a chill wind of self-censorship to swirl around. As a prominent non-profit organisation supposedly at the forefront of cyberlaw, EFF’s influence is substantial. Let us consider what it might look like if the EFF took this approach to certain other new technologies.

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Press Release: EFF withdrawing from social networks.

For several years, EFF has been following the movement around social networking, a system of electronic communication which touts itself as providing “informal communities of peers”.

We’ve been a long time user of email and have been experimenting with social messaging technologies such as Twitter and Facebook, which are at the forefront of peer-to-peer and social systems.

However, we’ve recently removed all our Twitter and Facebook accounts, and we’ve decided not to have any social network friends or followers. We decided on this course of action for a few reasons:

1. We don’t fully understand the complex legal issues involved with social networks and electronic peer-to-peer communications.
Social networks raise untested legal concerns related to privacy, bullying and harassment, fueling of riots, impersonation and identity theft, among others. While EFF is often the defender of people ensnared in legal issues arising from new technologies, we try very hard to keep EFF from becoming the actual subject of those fights or issues. Since the legal implications surrounding the use of social networks and peer-to-peer systems in general are still very unclear, we worry that our participation in social networking may move us into the possible subject role.

2. We don’t want to mislead our ‘friends’. 
When people become a social network ‘friend’ or ‘follower’ of a nonprofit like EFF, they often expect us to be a genuine ‘friend’ or ‘follower’ in the more traditional sense. This can lead to legal misunderstandings as to the nature of our relationships with other participants in the social network. In 2011 Social media has been associated with the ‘Arab Spring’ uprisings as well as implicated in ‘fueling’ the Tottenham riots. This has led to renewed interest from governments in mapping the social network to identify collaborators, as well as mechanisms for shutting down certain social networks entirely in times of crisis. Because of this legal uncertainty, we are not comfortable with the number of ‘friends’ and ‘followers’ we have accumulated.

3. People were misconstruing our use of Twitter, Facebook and other social networking tools as an endorsement.
We were concerned that some people my have participated in these social networks specifically because EFF took part, and perhaps therefore believed the activity was safe and risk-free. While we’ve been following the social network movement with a great degree of interest, EFF has never endorsed Facebook or Twitter. In fact, we generally don’t endorse any type of product or service – and these are no exception. We appreciate the outpouring of support we have received from the social networking community, and we share that community’s commitment to privacy and innovation. We also appreciate their frustration with the privacy problems posed by existing on-line social networking systems. However, EFF will no longer be accepting or making friends. In upcoming meetings, we will also be reviewing and potentially withdrawing from the domain name system entirely – so that from the outside, we can better assist you in fighting #SOPA! To mitigate the risks inherent in electronic communications with the EFF, you can as always contact us via snail-mail at:

Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA

Donations using electronic methods such as credit card, bank wire or bitcoin are no longer accepted for similar reasons – we can best defend your use of these electronic systems if we are not seen to be ‘users’ ourselves. Cash in the form of notes is no longer accepted due to possible contamination with cocaine and the resulting legal risk that imposes. Gold bullion or cash in the form of coins can be delivered to the above address.

Reprinted with permission. This article first appeared at http://bitcoinmedia.com/the-effs-own-chilling-breeze/.

3 comments:

  1. In fact I would not be surprised if the EFF DID withdraw from social networks at some time in the future, given their recent stand on bitcoin. I believe that the EFF has stepped back from bitcoin, less over its legality but more from its political implications. Does the EFF want to eliminate the rule of the Nation State? By effectively backing Bitcoin, the EFF would be working on defending a technology that may end the ability of the government to tax any transaction. It would also make it practically impossible to legally prosecute someone who uses bitcoin criminally because of its ability to be used anonymously. By the way I am aware the currently BTC is not actually anonymous and that used as is, can be tracked. That I believe will soon change.
    The EFF has always been of a distinctly Libertarian bent from its inception. However, libertarians don't necessarily want to end government and I think there are many people who are involved with EFF who can see the handwriting on the wall.

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  2. In what sense is the EFF chilling anyone? It appears to me that they are simply opting to let themselves be chilled, if you want to call it that, which is their prerogative. Bitcoin is awful anyway.

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  3. I totally agree with your analysis Jon. The actions of the EFF come across as being very sketchy to me. They are obviously not living up to the organization they bill themselves to be.

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