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.”
It turned out that most of the placards had the message; a few of the demonstrators were giving interviews, shouting against the crushing noise of rush hour traffic. I 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 EFF and the others tell it, granting the FBI access to a single iPhone would mean the end of privacy and freedom on the internet: 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.
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 assiduous Russia spotters suggested that this same weapon was similarly deployed in Britain against a hapless British electorate, weaponizing social media ads to turn 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 sputtered and stalled, people started to look around and wonder what happened. And one thing became clear: the groups that are usually the loudest and organize 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 it,” she wrote, “why should Congress?”
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.
The idea for EFF was hatched in 1990 by 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. EFF’s public relations was handled by Cathy Cook, a whiz who had done the same work for Steve Jobs. In short order, this young hip watchdog group—which in 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.”
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 systems. In the 1980s, the National Science Foundation was tasked with extending this networking technology into the civilian world. The agency’s plan 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 and chronicled by Tom Wolfe in The Electric Kool-Aid Acid Test,” wrote Wired journalist Joshua Quittner. “Older and wiser now, they’re on the road again, 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.
When 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 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 companies began to emerge—next-generation platform giants like Google and Facebook.
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 lobby.
Google led the pack. It cobbled together one of the biggest corporate lobbying operations in Washington. Its main 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.
There was huge excitement about the launch in the media. It got to the point that 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—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 like Google from reading or otherwise analyzing people’s emails for targeted ads unless they received affirmative opt-in consent from all parties involved in the 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
A year before EFF went to the mat to 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 the FBI mine your data for terrorism?”
In the end, California’s efforts to pass an 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.”
A Net Wash
In the coming years, EFF would replicate the public relations strategy it used during the Gmail scandal to help protect Silicon Valley’s core business model. In one 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 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 protect billions. . . . Reset the Net demands that web services take concrete steps to protect their users from government snooping, while 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 two bills did not alter copyright law, but sought to strengthen enforcement of existing laws in the internet era. They would give the Department of Justice enhanced power to shut down sites that distribute 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.
Facebook, Yahoo, Amazon, eBay, Mozilla, Reddit, PayPal, Twitter, and scores of 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 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.
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.
And despite their disparate ideological pedigrees, the groups were amazingly synchronized in their messaging. “We’re not talking about China or Iran. We’re talking about blacklist legislation being debated by the U.S. House of Representatives this week,” warned an EFF communiqué that described SOPA and 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 a much more drastic measure: it went dark for twenty-four hours, redirecting visitors to a black background with a bit of scary white text:
>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 the Web,” reported the New York Times, remarking that the digital campaign was so successful lobbyists considered it the beginning 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.
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 amazing is that this comes to Glaser as a surprise. Imagine someone working for the Cato Institute or FreedomWorks or the American Enterprise 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.