Larry Lessig hardly makes any appearances these days without asking GNUsters, penguinistas, and suits to spend about as much money supporting organizations which work for greater openness as they do on Comcast, Disney for the kids, Verizon Wireless for your phone, and other products and services offered by the copyright cartel.

Let’s also be very clear about one thing: free open source advocates need to become staunch opponents of piracy. We are asking the world to respect the GPL, which is based on copyright. We need to respect copyright, if do the same if we expect respect the world to respect the GPL. Lessig also repeatedly pounds the table for respect for copyright wherever he goes.

Similar arguments have been made with regard to Disney and other content providers. It would therefore seem that the free open source community has less to lose with respect for copyright law than by encouraging piracy. In fact, Linspire has been nervous about the Grokster case, because they are concerned that erosion of P2P could undermine their ability to distribute code via their one-click download service, called CNR for Click N Run. The same applies to lots of variations on Debian’s apt-get solution.

These are all good reasons why the EFF has spent lots of money and staff time shipping its lawyers off to Washington from its humble abode in the humble Mission District in San Francisco. Which is why they could use some help. Financial help. More members. So just breeze through this interview with EFF Director Shari Steele. Maybe after reading some of their hilarious and yet serious-as-a-heart-attack fights with huge and scary organizations such as the US Secret Service, you’ll decide that becoming a member of the EFF is for you.

Shari Steele: I’ve been ED (Executive Director) for about four and a half years. I’ve been with the EFF, though, since January of 1992, so I guess that’s what, 13 years or something like that.

I started off as a staff attorney in the Washington, DC office, back when we used to have a Washington DC office. A few years after that, I ended up taking over as Director of Legal Services, heading up the legal department. When the EFF moved out here to San Francisco, I stayed in Washington and managed thing from there for a while. I ended up leaving leaving the organization for about six months, and then came back about four and a half years ago, and took the Executive Director job and moved out here to San Francisco.

MP: How did you get involved with law and tech issues?

SS: I fell into it. Back then, 12 years ago, there wasn’t a whole lot of work being done in law and tech issues. Most of it was lawyers working for technology companies or working with technology companies, helping them with contract law and a little intellectual property law, stuff with more of a business focus. There wasn’t a civil liberties group that was doing the work we do now. And that’s actually how the EFF ended up coming to life. The Internet pioneers who are our founders recognized that need, and started our group.

I had been working through law school as a tech writer for technology companies like Unisys and another smaller company. Then, I was looking for law teaching jobs. That is always what I had been planning on doing, and then I happened to see this ad at the Georgetown University Law Center that they were looking for a staff attorney for this new organization called the Electronic Frontier Foundation, which was just opening up a Washington office. I applied, and I liked the people, and I thought, Wow, this could be really fascinating or this could fall on its face with there being any interesting work at all. Of course, it’s turned out to be really fascinating and amazing.

MP: So give us a little history of the EFF. Who were those Internet pioneers who started the EFF?

SS: Back in 1989, the United States Secret Service decided that it was going to go after some individuals who were passing around a very important document that had been copied from a Bell South computer that described the emergency 911 system. This document was being passed around on electronic bulletin board systems throughout the country, and probably throughout the world. They were tracking this document, and it ended up being published in an on-line news journal at the time, an e-zine called Phrack. One of the recipients of Phrack was a small games company out of Austin, Texas, called Steve Jackson games. They made fantasy games books, they weren’t even doing electronic games at the time. They sold things like Dungeons and Dragons type books.

The Secret Service, in its infinite wisdom, decided to just go into Steve Jackson Games and remove all of its computers. They removed disks, removed its printers, removed its modems, and pretty much everything electronic. The Secret Service didn’t know what it was doing back then with these kinds of electronics. They didn’t have guidelines, and so they didn’t know what was going on. Steve Jackson Games was a book publisher, so by removing all of the company’s disks and computers, the Secret Service prevented Steve Jackson’s pending publications from being released on time.

Steve Jackson had to lay off a bunch of his work force. It really interfered with his business. Ironically, as it turns out, Steve Jackson never received the Phrack newsletter, and it wasn’t on their computers, but in the course of looking through all of the computers, the Secret Service found electronic mail from bulletin board of Steve Jackson Games’ users, and the Service proceeded to read and delete every single message stored on that bulletin board.

In response to this action by the Secret Service, those Internet pioneers I was talking about started to formulate a plan. Actually, at the time the Internet was not really the Internet as we know it today. It was bulletin board systems, where people were dialing into computers that other people were running, and folks on those bulletin boards, such as the WELL, the Whole Earth Lectronic Link, were talking about what should be done. Mitch Kapor, John Perry Barlow, John Gilmore, Steve Wozniak, and a bunch of other Internet pioneers thought that it was ridiculous that the electronic mail that these people passing back and forth were seized and read and deleted as part of a witch hunt that the Secret Service was going on.

So that group of pioneers went to the ACLU and other organizations to try to find an organization that was going to litigate this attack on Steve Jackson Games. They found none, and so they formed an organization and called it the Electronic Frontier Foundation.

From the day that they announced the formation of the EFF, July 10, 1990, they also announced that they were suing the US Secret Service on behalf of Steve Jackson Games. That was our very first lawsuit, and we won big time. Now, the US Secret Service, and all other governmental agencies, needs to get a warrant that particularly describes the email files that they’re interested in reading before they can read any emails that they take off of computers. The Secret Service has also since learned that you don’t need to seize modems and printers and all sorts of other things. They’re very careful about what they seize when they go in and seize things.

MP: Tell us about the Bernstein case and the First Amendment.

SS: In that case, a mathematician cryptographer came up with a little piece of code that he wanted to put out on the Internet for fellow cryptographers to critique, in peer review fashion. It turns out that his posting the encryption code was considered an export of munitions by the US government! He was told that he needed to get an arms license in order to be an arms dealer before he could put this little piece of code up there.

We brought a suit against the United States government again, telling them that the export control laws on encryption were a violation of the First Amendment. We litigated that very successfully. We brought it all the way up to the Ninth Circuit, which held that indeed he had a First Amendment right to put his code up on the Internet, and that the export control laws limiting his right to do that were unconstitutional.

MP: Wow. So you are talking about a crossover between technology and the First Amendment, one of the biggie civil rights Amendments in the Bill of Rights.

SS: Yep. The EFF is a civil rights organization. At our very heart, and from our very beginning, we are all about free speech. The Internet is a communications tool. Anything that’s limiting the way that people can communicate with each other, the kinds of things that people can say to one another, anything that limits those rights, is going to be a concern to us.

The First Amendment speaks specifically to the government. It looks specifically federal action, or state action, police actions, that kind of stuff. But we look at First Amendment principles, so we don’t limit our concerns to government actors. There are a whole lot of corporations, for example, that can limit your ability to do the kinds of things that you want to do, and we want to stop that. We also look at creativity, innovation, and a lot of the values that sort of swarm around the First Amendment, even though they aren’t in the actual language of the Amendment. MP: Your discussion of the Internet as a forum reminds me of Doc Searls’ great rants about how the Internet is a bazaar, a place where people meet to talk.

SS: Yes, talk is essential, and talking is core to what we are doing. But we are also concerned with helping people do what they want to do in cyberspace, and use the technology in ways that are useful to them, and bettering humankind. We ask the question, Is this healthy for the Internet? Is it fostering good things? Or is it hurtful to communications on the Internet. And if it’s hurtful, we do see ourselves as having a big role in getting in there and making things right.

MP: When you say good and bad, I’m guessing that you mean the more open things are, the better they are.

SS: Yes, it turns out that the more open things are, the better off things are. It also makes it more transparent, so that we can actually see what’s going on. So if something were open, and it were evil, we would all know that it was evil, and it would make it a lot easier to deal with it. But if something is not open, it’s very difficult to know whether it’s evil or it’s not evil. So open is usually better, because it helps us. It helps us understand things more, and understanding is a good thing, it’s essential to being able to respond properly.

MP: What about using lock down to stop bad stuff like child pornography? Where does the EFF stand on that issue?

SS: The EFF doesn’t get involved with child pornography issues, because there are lots of other organizations out there that handle that kind of issue. The only way that we do get involved with child pornography is if some of the solutions that people come up with as ways of limiting child pornography unduly limit other kinds of clearly protected speech. For example, adults sharing AIDS information, or how to use birth control, or breast cancer information. We would get involved at any sort of legislation or rule or even technology that would try to put limits on adults having adult conversations that aren’t child pornography or aren’t things that are clearly illegal.

I think that a lot of people use child pornography and regular adult pornography as hot button items in order to get really prohibitive legislation passed or prohibitive technologies adopted. It’s a means to promote otherwise unacceptable free speech limitations .

The EFF doesn’t have an organizational definition on what is unprotected pornography. But we do get involved in enforcement issues, such as jurisdiction. For example, if your jurisdiction says that something is legal, someone who accesses your stuff in another jurisdiction shouldn’t be able to sue you outside your jurisdiction for having that stuff. In other words, there are other legal / technological issues that are peripheral around these definitions that the EFF does get very involved in.

MP: How does the EFF get involved in pushing openness in international issues, such as open standards internationally?

SS: That’s been a tough one for us. We are based in the United States, and our attorneys are trained in the United States. So we clearly are experts at our area of law in the United States. Over the past year or two, we have turned a bigger focus on the international stuff; we have an international affairs director here in the US; we have a European affairs coordinator; and we’ve got someone who’s going to be looking at these issues for the Americas, doing Canada and the Central and South American countries. We’re also helping to train people who on the ground in those geographic regions in some of the advocacy issues we are familiar with. We’re teaching them what some of the ramifications of US laws have been, so that they can cope with those ramifications in their own regions.

We are a small organization. We are at 25 people right now, but we can’t do everything, so we’re trying to help people in various different places understand the issues, giving them the tools that they need in order to be successful, without spreading ourselves too thin.

MP: What are some of the other organizations that you work with, and how do you divide up your work with them?

SS: It kinda divides itself naturally. We work with all of the organizations that work in our areas. They’re the folks that you would expect. The ACLU; EPIC; CDT; Public Knowledge, there’s a whole bunch of groups. Each one of them has their special area of expertise that is their core area. And these groups work with each other on certain projects.

For example, the EFF is doing the Grokster case. It’s about to come before the Supreme Court. In fact, by the time this interview goes on-line, Grokster will have come before the Supreme Court. So we received amicus friend of the court briefs from lots of those groups. And when they have cases, we write amicus briefs for them. It’s actually quite good the way that we work together.

MP: Why is open source important to the EFF, and why is the EFF important to open source communities?

SS: The EFF really believes strongly in innovation and creativity. Creativity and innovation is the essence of freedom. And the open source community is the essence of creativity and innovation. So the EFF sees the future of innovation as being closely tied together with the open source community. That’s where a lot of creativity and innovation is going to sprout from.

So we are very strong advocates for the open source movement. We fight against any legislation that the Congress is considering that would put any sort of constraints on the open source movement. We sit in on standards meetings both in the US and abroad to fight for open source. We have been fighting for open the source of the e-voting machines so that we can take a look at how our democracy is really counted and whether or not the vote is accurate. If you don’t have transparency and openness, you can’t make that decision. You can’t understand how to fix things and how to make things good. So we’re very big on open source.

Most of our work revolves around trying to get more open standards in cyberspace. Way back in 1990 when we were founded, Mitch Kapor said architecture is policy. We have a very keen understanding that the way you design something, the way you code it, the way you write it, is going to have really serious implications on the social usefulness of the product, in the same way that regulations will have that influence.

MP: Open source and the Internet have the possibility of helping humanity reach a new renaissance of creativity and innovation. If you look down the road a bit, where do you see open source and the Internet taking us?

SS: [Laughing]. I have no idea. I leave that kind of thinking to people who are much more creative than I am. But I definitely look forward to working with EFF to help creative people pave the way to those creative things. The Grokster case is an example. That case is going to be critical for seeing what the future will be, and how much innovation will come about. If we lose Grokster, if we lose the ability to create technology and not have to worry about being held liable for the things that end users do with the technology, there are going to be a lot of limitations, either in the law or in the form of self-censorship. If you want to see a more creative future of really interesting new ideas and sharing ideas, you’ve gotta have an environment that is supportive of innovation, and not an environment in which people are going to be afraid to be creative. That’s why we’re involved in the Grokster case.

MP: Talk to us about the EFF’s list of endangered devices. What are some of those kinds of devices?

SS: One of the more obvious endangered devices, at least to us here on staff at the EFF, is the iPod. Here’s an example of a wonderful piece of technology that has gotten a lot of press. A lot of people buying them, and they have huge disks that you can fill up with a lot of music that you obtained legally or illegally. The other side would say that it’s almost inviting people to get the music wherever they can it. Of course, Apple would disagree with that, but we are concerned that if Apple had to worry about what their customers fill their iPods with, then Apple would maybe be much less inclined to make something like the iPod, for fear of the liability involved.

So that is a very obvious example of something that would be endangered if the Betamax case didn’t exist. And of course, the VCR, because the Betamax case is about the VCR. That was a case of people doing home recording and watching the taped broadcast later. That possibility wouldn’t have happened without the Betamax case. Also, tape to tape transfer wouldn’t exist without the Betamax case. Probably CD and DVD burning technologies wouldn’t exist without Betamax. We even listed Silly Putty on our endangered technology list. We kinda listed it tongue-in-cheek, but the reality is, you can use Silly Putty to copy a copyrighted image, and then distort that Silly Putty image and twist it and do all sorts of funky stuff with it without getting the copyright-holders permission. Another example is TiVo, which wouldn’t exist if the company had to worry about what you, the end user, were doing with your TiVo box. There are lots of technologies that would be affected.

MP: Where is the EFF going in the future?