A Not Terribly Brief History of the Electronic Frontier Foundation by John Perry Barlow Thursday, November 8, 1990 The Electronic Frontier Foundation was started by a visit from the FBI. In late April of 1990, I got a call from Special Agent Richard Baxter of the Federal Bureau of Investigation. He asked if he could come by the next day and discuss a certain investigation with me. His unwillingness to discuss its nature over the phone left me with a sense of global guilt, but I figured turning him down would probably send the wrong signal. On Mayday, he drove to Pinedale, Wyoming, a cow town 100 miles north of his Rock Springs office (where he ordinarily investigates livestock theft and other regional crimes). He brought with him a thick stack of documents from the San Francisco office and a profound confusion about their contents. He had been sent to find out if I might be a member of the NuPrometheus League, a dread band of info-terrorists (or maybe just a disaffected former Apple employee) who had stolen and wantonly distributed source code normally used in the Macintosh ROMs. Agent Baxter's errand was complicated by a fairly complete unfamiliarity with computer technology. I realized right away that before I could demonstrate my innocence, I would first have to explain to him what guilt might be. The three hours I passed doing this were surreal for both of us. Whatever this source code stuff was, and whatever it was that happened to it, had none of the cozy familiarity of a few yearling steers headed across the Wyoming border in the wrong stock truck. What little he did know, thanks to the San Francisco office, was also pretty well out of kilter. He had been told, for example, that Autodesk, the publisher of AutoCAD, was a major Star Wars defense contractor and that its CEO was none other than John Draper, the infamous phone phreak also known as Cap'n Crunch. As soon as I quit laughing, I started to worry. 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 datacrime. I also found in his struggles a framework for understanding a series of recent Secret Service raids on some young hackers I'd met in a Harper's magazine forum on computers and freedom. And it occurred to me that this might be the beginning of a great paroxysm of governmental confusion during which everyone's liberties would become at risk. When Agent Baxter had gone, I wrote an account of his visit and placed it on the WELL, a computer BBS in Sausalito which is digital home to a large collection of technically hip folks, including Mitch Kapor, the father of Lotus 1-2-3. Turns out Mitch had also been visited by the FBI, owing to his having unaccountably received of one of the source code disks which NuPrometheus scattered around. Mitch's experience had been as dreamlike as mine. He had, in fact, filed the whole thing under General Inexplicability until he read my tale on the WELL. Now he had enough corroboration for his own strange sense of alarm to begin acting on it. Several days later, he found his bizjet about to fly over Wyoming on its way to San Francisco. He called me from somewhere over South Dakota and asked if he might literally drop in for a chat about Agent Baxter and related matters. So, while a late spring snow storm swirled outside my office, we spent several hours hatching what became the Electronic Frontier Foundation. I told him about the sweep of Secret Service raids which had taken place several months before and their apparent disregard for the Bill of Rights. Alarmed, he gave me the phone number of Harvey Silverglate, whose willingness to champion unpopular causes was demonstrated by his current defense of Leona Helmsley. He said that Harvey would probably know if this were as bad as it was starting to sound. He also said that he would be willing to pay the bills that generally start to appear whenever you call a lawyer. I finally found Harvey in the New York offices of Rabinowitz, Boudin, Standard, Krinsky and Lieberman, a firm whose long list of successfully defended liberties includes the Pentagon Papers case. I told him and Eric Lieberman what I knew about recent government flailings against cybercrime. They were even less sanguine than I had been. The next day a trio code-named Acid Phreak, Phiber Optik, and Scorpion entered the walnut-panelled chambers of Rabinowitz, Boudin and told their tales to a young lawyer there named Terry Gross. While EFF as a formal organization would not exist for another two months, its legal arm was already flexing its muscle. A few days later I received a phone call from the technology writer for the Washington Post. He was interested in following up on the Harper's forum, and knew nothing of Mitch's and my joint endeavors. I filled him in, hoping to expose the Secret Service. Several days later, the Post published the first of many newspaper stories, all of which could have shared the same headline: LOTUS FOUNDER DEFENDS HACKERS. While this was an irritating misrepresentation...we were more interested in defending the Constitution than any digital miscreants...the publicity produced a couple of major supporters: Steve Wozniak, who called and offered an unlimited match to Mitch's contributions, and John Gilmore (Sun Microsystems employee #5) who e-mailed me a six figure offer of support. Meanwhile, the list of apparent outrages lengthened. We learned about an Austin role-playing games publisher named Steve Jackson whose office equipment had been confiscated by the Secret Service in an apparent effort to restrain his publication of a game called Cyberpunk which they thought, with ludicrous inaccuracy, to be " a handbook for computer crime. All over the country computer bulletins being confiscated, undelivered e- mail and all. A Secret Service dragnet called Operation Sundevil seized more than 40 computers and 23,000 data disks from teenagers in 14 American cities, using levels of force and terror which would have been more appropriate to the apprehension of urban guerrillas than barely post- pubescent computer nerds. And there was the Craig Neidorf case. Neidorf, also known by the nom de crack Knight Lightning, had published an internal BellSouth document in his electronic magazine Phrack. For this constitutionally protected act, Neidorf was being charged with interstate transport of stolen property with a possible sentence of 60 years in jail and a $122,000 in fines. I wrote a piece about these events called Crime & Puzzlement. Although I did so at the request of the Whole Earth Review...it made its first print appearance in the Fall 1990 issue of WER...I " published" it on the Net in June and was astonished by the response. It was like planting a fence-post and discovering that the " ground" into which you've driven it is actually the back of a giant animal which quivers and heaves at the irritation. By July, I was receiving up to 100 e-mail messages a day. They came from all over the planet and expressed nearly universal indignation. I began to experience datashock, but I also realized that Mitch and I were not alone in our concerns. We had struck a chord. In Cambridge, Mitch was having something like the same experience. Since the Washington Post story, he found himself bathed in media glare. However, the more he learned about ambiguous nature of law in Cyberspace, the more of his considerable intellectual and financial resources he became willing to devote to the subject. In late June, Mitch and I threw several dinners in San Francisco, to which we invited major figures from the computer industry. We weren't surprised to learn than many of them had exploits in their past which, undertaken today, would arouse plenty of Secret Service interest. It appeared possible that one side-effect of current government practices might be the elimination of the next generation of computer entrepreneurs and digital designers. It also became clear that we were dealing with a set of problems which was a great deal more complex and far-reaching than a few cases of governmental confusion. The actions of the FBI and Secret Service were symptoms of a growing social crisis: Future Shock. America was entering the Information Age with neither laws nor metaphors for the appropriate protection and conveyance of information itself. We realized that our legal actions on behalf of a few teen-age crackers would go on indefinitely without much result unless something were done to ease social tensions along the electronic frontier. The real task at hand was the civilization of Cyberspace. Such an undertaking would require more juice and stamina than two men could muster, even amplified by the Net and a solid financial supply. We would need some kind of organizational identity. With this in mind, we hired a press coordinator, Cathy Cook (who had formerly done PR for Steve Jobs), set a squad of lawyers to work on investigating the proper organizational tax status, and, over a San Francisco dinner with Stewart Brand, Nat Goldhaber, Jaron Lanier, and Chuck Blanchard, we selected a name and defined a mission. We announced the formation of the Electronic Frontier Foundation at the National Press Club on July 10. Mitch and I were joined for the announcement by Harvey Silverglate, Terry Gross, and Steve Jackson. We were also joined by Marc Rotenberg of the Washington office of Computer Professionals for Social Responsibility. One of our first official acts had been to grant that organization $275,000 for a project on computing and civil liberties. CPSR would keep a wary eye on developments " inside the Beltway" and work in conjunction with congressional staffers to see that any legislation dealing with access to information was sensibly drafted. While in Washington, we also took inventory of the terrain, meeting with congressional staffers, the Washington civil liberties establishment, and officials from the Library of Congress and the White House. The area to be covered, from intellectual property to telecommunications policy to law enforcement technique, was daunting, as were the ambient levels of confusion and indifference. We also generated an enormous amount of press. And it became apparent that not everyone was persuaded of our cause. Business Week called Mitch naive for his willingness to believe that computer crackers were somehow less dangerous that drug kingpins. Various burghers of the computer establishment, ranging from the executive director of the Software Publishers Association to a columnist for ComputerWorld, called us fools at best and, more likely, dangerous fools. The Wall Street Journal printed a particularly hysterical piece which alleged that the document Craig Neidorf (into whose case we had entered a supporting amicus brief) had published was a computer virus capable of bringing down the emergency phone system for the entire country. In fact, the text file which Neidorf distributed dealt with the bureaucratic procedures of 911 administration in the BellSouth region and contained nothing which could be used to crack a system. Indeed, it contained nothing which could not be easily obtained through by legal means. We persevered. Our first major break came in late July. Thanks in part to the expertise of John Nagel, a witness we introduced to Neidorf's lawyer, the government was forced to abandon its case against Neidorf after 4 days in Chicago's Federal Court. Although our briefs supporting Neidorf's activities under the 1st Amendment were not admitted, it became apparent, before such loftier matters could even be broached, that the Secret Service had indicted him with no clear understanding of the purpose or availability of the document he had distributed. Like Agent Baxter, they knew too little to critically examine the misinformation they had been given by the corporate masters, in this case, officials at Bellcore. Following the resolution of the Neidorf case, and, to some extent because of it, skepticism of EFF has moderated considerably. If anything, the most recent press accounts of our activities have been almost fulsome in their praise. Recent favorable coverage has appeared in the New York Times, The Economist, Infoworld, Information Week, PCweek, and Boston Magazine. Since July, we have been absurdly busy on numerous fronts: We've worked on raising public awareness of the issues at stake. We are organizing legal responses to the original and continuing intemperance of law enforcement. We have worked on the political front, developing and lobbying for rational computer security legislation. We have started to create a network of interested experts on computer security, intellectual property, telecommunications policy, and international information rights. And lately we've been attending to the organizational demands of the non-profit equivalent of a hyper-successful computer startup. The following is a cursory digest of these activities. The EFF in Public We believe that critical to taming the electronic frontier is creating a sense of the stakes among both the computer literate and the general public. We have combined public appearances, that incredibly blunt instrument, the Media, and electronic interaction to cover a lot of consciousness since July. It's a good thing Mitch has that airplane. We have continued to build a constituency within the computing community, convening small gatherings of computer professionals from across the hacker/suit spectrum. Mitch, Harvey, and I have also addressed larger forums such as the CPSR Annual Meeting, the International Information Integrity Institute meeting on computer security, the Computer Science and Telecommunications Board of the National Academy of Science and Engineering, Stewart Alsop's Agenda '91, MacHack, the Boston Computer Society, Ars Electronica, the Kennedy School of Government, and numerous others. We have done more press interviews and call-in radio shows than I can remember. Woz appeared on Good Morning America with Assistant Arizona AG (and Operation Sundevil architect) Gail Thackeray. EFF has appeared prominently in national publications ranging from Newsweek to Spin, most of the major daily newspapers, and nearly every computer trade publication from Information Week to Mondo 2000. A writer for The New York Times Magazine is currently at work on a major piece about EFF. I have agreed to write a regular column on the Electronic Frontier for the Communications of the ACM. And Mitch and I have been invited to submit pieces to Scientific American, Issues in Science and Technology, and Whole Earth Review. We set up two Usenet newsgroups, comp.org.eff.news and comp.org.eff.talk. eff.news is moderated by Glenn Tenney and contains a selection of the best articles posted in eff.talk. We began an EFF forum on the WELL (which soon became among the most active conferences there, right behind Sex and the Grateful Dead). We are setting up our own USENET node on the Net, eff.org, with a Sun IV in our Cambridge office and the guidance of volunteer sysop Spike Ilacqua. When fully operational, the machine will run the Caucus conferencing system and should have a 56kb Internet connection. Finally, we are investigating the possibility of setting up an EFF conference on Compuserve. We have read and personally generated over 4 megabytes of e-mail since June. Lately, Jef Poskanzer has been maintaining the EFF's electronic mailing list, which is now approaching 1000 names. Information distributed through eff.news is also sent to the mailing list. Concerned that our approach is a little too electronic, we are now trying to connect more directly with folks who might be interested in EFF but who are not online. Our newsletter, the first edition of which you now have in your hands, is part of that effort. Primarily the work of Rick Doherty and Dan Sokol, we intend to publish The EFFector a minimum of 4 times a year