EFF Throws—and Provides—Shade

October 6, 2016

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We are rapidly witnessing and experiencing the accelerating erosion of civil digital society. That is, cyberspace is recreating the “broken windows theory” of urban crime and decay as so brilliantly articulated by the late great political scientist James Q. Wilson and his collaborator George Kelling.

“If a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken,” Professors Kelling and Wilson wrote in The Atlantic. Should those windows and those buildings be left unrepaired and their vandals unpunished, the neighborhood inevitably rots. Societies and legal systems—police and neighborhoods—have to collaborate not just to fix broken windows but identify and punish vandals and criminal gangs. That commitment doesn’t exist in the digital space either in theory or practice.

… if the rule of law doesn’t radically improve, cyberspace will become a shadow war of vandals, vigilantes, and mercenaries—some state-sponsored, others paid for by corporations looking to protect their global interests. It will be ugly. It will be risky. It will be dangerous.

— Michael Schrage, Harvard Business Review, December 17, 2014

The Internet provides exciting and important benefits to society—changing the way we communicate, educate, conduct commerce, experience works of art, and more. But to paraphrase Schrage—the Internet has a rule-of-law problem. The Internet has made it easier for bullies, criminals, scofflaws, terrorists, and even rogue states to do harm. Compounding the problem, many laws were written without the Internet in mind, creating legal uncertainty. Thus, cybercriminals can largely act with impunity, confident in the notion they are beyond the reach of law enforcement. 

Recognizing that laws are slow to change and technological innovation can render new laws outdated by the time they are enacted, many Internet stakeholders have pursued voluntary, cooperative initiatives with other members of the online community in an effort to curb content theft and other illegal behavior. By and large, these efforts have been greeted with widespread acclaim from lawmakers, industry, and independent experts, including ITIF, who welcome multi-sector cooperation to address Internet ills.

But not the Electronic Frontier Foundation (EFF). EFF, a cyber-libertarian group that has long been against rules for the Internet, paints a grim picture, casting aspersions on good faith, reasonable solutions to address ongoing problems. In a recent post, Jeremy Malcolm and Mitch Stoltz warn: “We are calling these invisible and unaccountable arrangements Shadow Regulation… [T]o defend our Internet, we need to pay attention to the encroachment of these secretive, exclusive agreements, and challenge them when they pose a threat to our digital rights and democracy.” Note that “their Internet” is not necessarily “our Internet” as most Internet users would see it. EFF goes on to list examples of voluntary initiatives (most of which concern copyright infringement) it plans to “bring … into the bright light of public scrutiny.”

Perhaps no sector has seen more damage from online lawlessness than creative industries. For instance, the music business saw its revenues fall from $14 billion to $7 billion between 2001 and 2015, losses largely attributed to online theft. And last week, Google processed a record-breaking number of DMCA removal requests from rights holders, totaling more than 24 million.

To address this persistent and growing problem, rights holders from across the Internet ecosystem have entered into myriad voluntary agreements, including the Copyright Alert System, the Trustworthy Accountability Group, the Trusted Notifier Program, and RogueBlock. Each agreement addresses different aspects of the online theft ecosystem by, respectively, 1) educating consumers about infringing behavior; 2) keeping good ads off websites dedicated to theft; 3) ensuring that websites using domains registered with participating registries are not engaged in large-scale piracy; and 4) depriving sites selling stolen goods from accessing legitimate payment processing services.

EFF’s ideal Internet is apparently a wild west where legal concepts of property, expression, movement, and content do not apply to anyone. In particular, it is aggrieved by the voluntary agreements put together by Internet stakeholders. In its campaign against governance systems for the Internet, EFF starts by characterizing these voluntary agreements as “invisible and unaccountable.” But this is demonstrably false given their robust websites, routine press releases, and participation in public discussions about these programs and policies. True, EFF was not consulted during their formation, but that would be like inviting Kanye to a Taylor Swift party—unpleasant for everyone. What’s more, reasonable civil society groups were included in some cases. For instance, Center for Democracy & Technology founder Jerry Berman sits on the Copyright Alert System board of advisors, and other civil society voices take a far more sensible tone. As the Internet Society said in a 2013 blogThe Internet Society is, generally, in favor of industry-based initiatives to address various issues, including those related to intellectual property; however, we are also mindful of the risks associated with these approaches.

EFF is critical of any and all remedies to the Internet’s biggest problems, opposing legislative, judicial, and voluntary solutions, but it sees things more clearly when the shoe is on the other foot. When Shawanda Kirlin of Bali, Indonesia, was using the domain name “electronicfrontierfoundation.org” (EFF’s real domain name is eff.org) as part of a phishing scam, EFF filed a complaint with the WIPO Arbitration and Mediation Center under the Uniform Domain Name Dispute Resolution Policy, saying it could “confuse consumers by redirecting them to the [EFF’s] official website only after surreptitiously installing malicious software on the computers of unsuspecting visitors.” What happened to EFF’s belief that, “The only law that all our constituent cultures would generally recognize is the Golden Rule”? Maybe EFF should have instead emailed Kirlin EFF’s Declaration of Independence so he would understand how things are supposed to work in its utopian cyberworld. Fortunately for EFF, relying on the weary giants of flesh and steel (i.e., governments and their affiliated voluntary groups) worked, and that dispute was rightly and swiftly decided in EFF’s favor, taking only two months from when the complaint was filed until the domain was suspended. So when EFF calls other voluntary dispute-resolution processes “unfair and undemocratic,” the irony is thick.

EFF is both rejecting the rule of law and the right to self-organize. This is not an argument against tyranny, it is a defense of anarchy. EFF cannot claim to be protecting digital rights when it proclaims that voluntary agreements should have no standing. Collective action is how progress occurs, whether it be through government or other associations. EFF seems only interested in inaction.

Most of us want to accelerate the global growth of the Internet and encourage the widespread and deep digitalization of the world. But there is growing consensus that the values, laws, and norms we cherish offline are underrepresented online, and as a result, are holding back this transformation. We all want an Internet that works for everyone, a platform for commerce, speech, expression, creativity, and innovation—but also safety, security, and accountability. It’s time for EFF to stop peddling fear to consumers and users, and providing shelter to “vandals, vigilantes, and mercenaries,” who hide in EFF’s shadow.