Interview: Danny O'Brien of the Electronic Frontier Foundation

Tuesday, January 24, 2006 

January's second Interview of the Month was with Danny O'Brien of the Electronic Frontier Foundation (EFF) on 23 January in IRC.

The EFF is coming off a series of high-profile successes in their campaigns to educate the public, press, and policy makers regarding online rights in a digital world, and defending those rights in the legislature and the courtroom. Their settlement with Sony/BMG, the amazingly confused MGM v Grokster decision by the Supreme Court of the United States, and the disturbing cases surrounding Diebold have earned the advocacy organization considerable attention.

When asked if the EFF would be interested in a live interview in IRC by Wikinews, the answer was a nearly immediate yes, but just a little after Ricardo Lobo. With two such interesting interview candidates agreeing so quickly, it was hard to say no to either so schedules were juggled to have both. By chance, the timing worked out to have the EFF interview the day before the U.S. Senate schedule hearings concerning the Broadcast flag rule of the FCC, a form of digital rights management which the recording and movie industries have been lobbying hard for - and the EFF has been lobbying hard to prevent.

Interview questions

[Wikinews] I'd like to jump into some direct questions which were suggested by people on the research page. These first ones relate to the US government and online privacy.

Since 9/11 the US administration has been progressively violating privacy standards in online communications, including circumventing its own surveillance laws and developing—and possibly implementing—the Total Information Awareness project. What is EFF's position regarding government monitoring of private communications such e-mail, instant messaging, and voice over IP?

[Danny O'Brien] Since the very beginning, the EFF has worked hard to keep the traditional laws regarding wiretapping and monitoring away from the Internet, not just because we believe in strong 4th Amendment rights but because technologically, a wiretap on an individual line is miles away from what is needed to do the equivalent on the Internet. That's why, for instance, we fought against CALEA being extended to the Net, and why we're fighting the FCC's extension of it now.

A lot of simple approaches to surveillance that the gov't would like to take are far from reasonable, to use the language of the 4th amendment.

I should say that I'm using American examples here, but we're obviously concerned more generally.

[Wikinews] A related question - Will EFF be involved in cases, even as amicus, such as the cases filed by ACLU Detroit and the Center for Constitutional Rights New York, which allege the National Security Agency violated US law prohibiting wiretaps without a warrant?

[Danny O'Brien] We're currently looking into every possible avenue. One of the difficulties is trying to ascertain exactly what the government program involved. The EFF has a battery of lawyers, with different areas of interest.

[Wikinews] Is this in the same vein as the recent requests for Google to pony up its search database?

[Danny O'Brien] No, that's a great question. The two issues are very different, but I think speak to the problems that the Internet is now being seen as a resource for government surveillance and research, which we think that all Net companies have to become aware of. There's a real danger in simply logging everything: you end up risking being a tool for the invasion of your own customer's privacy.

[Wikinews] Google alone of the largest search engines refused the Justice Department's demands to turn over user data. The EFF is on record as criticizing Google's privacy policy. How does the EFF feel about that privacy policy now? What does EFF feel about the other search engine's behaviour—did they comply with their own privacy policies? Does this incident reflect the strength or weakness of corporate privacy policies online?

[Danny O'Brien] Privacy policies largely extend at the moment to merely the descriptions of what information is stored. We've long warned against companies collecting large amounts of data about their customers, and doing nothing to anonymise or aggregate it. We think that companies are storing up trouble for themselves this way.

[Wikinews] Does the EFF have any material or programs that seek to educate employers and companies on the advantages of privacy?

[Danny O'Brien] We do -- hold on, I should be handing out more URLs http://www.eff.org/osp/ is our guide to "online service providers" for the best practices in logging data. I'm also speaking at the MySQL conference later this year on what *not* to include in your schema. It's an interesting area, because it's one where coders have a degree of power over what can be done.

Personally, I'd like to see a great deal more knowledge about how to aggregate and anonymise data being spread among the community. I'm constantly recommending the book Translucent Databases, which covers this very nicely. Also, the OSS source would do a great service by setting reasonable defaults for software logging behaviours. The trouble is, and I think we all fall into this trap; we assume the more logging the better. How many of us are casually logging this, for instance?

[Wikinews] I'd like to talk about the Sony BMG case for a bit, if that's okay. First, congratulations to EFF in regard to some of the successes in the Sony BMG case. There are some questions, clarifications about the case, however. The settlement appears to cover the XCP and SunComm software delivered on CDs. What about OpenMG XCP, DRM used by Sony BMG's SonicStage software for Sony Connect?

[Danny O'Brien] Okay, this is where I have to say that I'm a *bit* limited in what I can say. Ah, if only out of blind ignorance in this particular case.

[Wikinews] Do you know if the OpenMG XCP software is mentioned at all in the agreement?

[Danny O'Brien] I don't know about OpenMG: we joined the case representing XCP and SunComm users, so I don't think that was covered. But watch me shine the giant neon IANAL sign above me. If you like, I can ask after the interview, and we can add that to the results.

[ Wikinews] I'd appreciate that.

Can you disclose the terms of the settlement regarding future use of software DRM measures? Have they promised not to alter users machines in the future?

[Danny O'Brien] Again, it's always dangerous to paraphrase legal documents. Ah, we have an FAQ that covers this. Thank goodness: http://www.eff.org/IP/DRM/Sony-BMG/settlement_faq.php

[Wikinews] This case also has some connection to copyright infringement: the XCP software included code taken from the VLC media player software, which is released under the GPL. Is EFF involved in any cases regarding this?

[Danny O'Brien] No we didn't cover this. We don't have standing to take on the copyright issue - i.e. we would have to represent a copyright holder.

[Wikinews] Would EFF be involved in such a case if asked?

[Danny O'Brien] It'd be an interesting case, but we try to distribute these cases to where the expertise lies. During the Sony BMG case, we spoke to groups like the FSF and the Software Freedom Law Center. Generally speaking, they're the people who would be best placed to investigate cases like this.

It's worth saying that we're really pleased that there's now a whole constellation of great organisations that we work with. FSF, the Berkman Center, Public Knowledge in D.C., the list goes on.

[Wikinews] The Sony BMG case is a content producer attempting to enforce DRM on their clients. The US FCC is trying to do the same thing on the hardware of US citizens with the Broadcast Flag. I know the EFF is involved in the lobbying on this, but I have questions which lead into this. This is a hardware issue. Does it matter on the internet?

[Danny O'Brien] Yes, for a number of reasons.

The point about the broadcast and audio flags is that they set up a kind of ghetto for content. The whole point of both is to *prevent* distribution onto the Internet. But in order to do that, you need to create a hardware world which is fenced off from not just the Net, but from user modification, and open source development.

This ghetto has to be created in every audio-visual device, by government mandate. So that affects the Net a couple of ways. Firstly, you essentially curtail the Net's use. But secondly, these flags are easily (though illegally) circumventable, so they generally prompt even more draconian laws (which are just as easily circumventable.)

One of our biggest problems with the flags is they cross a Rubicon. They create a government technological mandate in user tech. Once you start down that path—especially when you discover your initial mandate doesn't actually work—you just ask for more and more control.

[Wikinews] Isn't this already the case, considering the HDTV standard and others? Isn't standards an element of the FCCs mandate?

[Danny O'Brien] Standards for broadcast and reception, but not standards for what you do *after* you receive something. Remember the FCC's primary job is to prevent interference, and to manage the commons of the public airwaves. It's a huge overreach for it to take over what you do with what comes from over those airwaves.

[Wikinews] Because this is a rule, not a law, how does the EFF plan to approach it in the US Congress?

[Danny O'Brien] Well, the initial regulation was thrown out by the courts, who agreed with us that this was agency overreach. So what we've seen now is groups like the MPAA and RIAA attempt to extend the FCC's powers by law.

For all of last year, they attempted to do that by -- well, for want of a better word, sneakily attaching the necessary language to other bills. As you say, it can potentially be a very small amendment, so I suppose they felt that they could do this. Everyone fought an incredibly effective campaign to prevent this. And a lot of that had to do with the Net—we'd hear from the Hill of a lobbyist attempt to include the regulation, and we'd be able to organise calls and letters from constituents very quickly.

Most politicians, strangely enough, don't like it when something is sneaked past them. And we managed to alert a lot of them to arguments they weren't hearing from broadcasting lobbyists.

Now, we're seeing a second stage. Which is Hollywood coming out into the open, and presenting the flags openly. That stage begins tomorrow, with Senate hearings on the topic.

[Wikinews] The Senate will begin hearings on this rule tomorrow. What does EFF expect to happen during this legislative process? How might this affect online communities? to get specific and personal, what does it mean to Wikinews readers and contributors?

[Danny O'Brien] If the law passes, it'll have dramatic effects. Particularly to Wikinews' future, actually: I think we can all foresee a time when Wikinews would take fair use samples of the news and public affairs, both audio and visual. With a broadcast or audio flag in place, that usage - while legal - would effectively disappear or at least be much much harder.

More generally, you'll see advancement in tech frozen in a lot of areas, the pulling away of open source development in anything that was connected to HD TV or digital radio. The biggest problem here is that technology like the flag gives the entertainment industry a stick to hit the technology industry. Before the broadcast flag was even introduced, Hollywood was lining up objections to technology like Tivo-To-Go.

[Wikinews] I understand that would be the case in the USA, but could you explain how this might affect people in the EU? or anywhere outside the USA?

[Danny O'Brien] Sure, one of the areas that we spend a lot of time with these days—we have two staff working full time on international issues—is what's called policy laundering. So for instance, the worst provisions of the DMCA have generally been introduced into law in countries like Australia by their inclusion in bilateral Free Trade Agreements. Already, Hollywood representatives have been working in Europe and elsewhere to introduce the equivalent of the broadcast flag there. The rule is that if you can introduce it in one country, that makes it a lot easier to export it elsewhere.

[Danny O'Brien] Copyright extension is a great example of this. In that, the last US copyright extension was introduced to track Europe, and now Europe is being encouraged to match its copyright with the US. We're already seeing that with copy control mandates like the flag.

[Wikinews] The Broadcast flag is a form of Digital Rights Management, in this case implemented by the US FCC. There are other DRM issues to talk about. In the French Parliament the DADVSI law, which relates to the implementation of the 2001 European Directive on Copyright in France, is under active consideration. Has the EFF had the opportunity to consider this law, and what is the opinion if so?

[Danny O'Brien] Actually, I was just talking to Submarine about this before the interview started. We're keeping as close an eye on this as we can. It's a good example of the ratchet problem as it's an implementation of the EUCD.

[Wikinews] Canada and Belgium apply heavy taxes on copying medium, and the revenues from these taxes are used to support creative artists and developers, as an alternative to supporting DRM. What does EFF feel about such a method to control fair use/fair dealing?

[Danny O'Brien] Actually, we prefer a system of voluntary licensing schemes over either of these approaches. http://www.eff.org/share/collective_lic_wp.php

[Wikinews] There are efforts under way to develop an open standard DRM, such as a project by Sun Microsystems which is relatively fair to users. Would EFF support an open standard/open source DRM, or is the entire concept of DRM considered unacceptable in any form?

[Danny O'Brien] Our take on Sun's DRM: http://www.eff.org/news/archives/2005_08.php#003929

Essentially, our disagreement isn't with DRm per se: it's DRM backed up by the DMCA's anti-circumvention laws. If users had the right to circumvent DRm to exercise their fair use rights, we think the market would quickly sort out what controls on media use were acceptable and what were not.

[Wikinews] A follow-on question from the French one: does eff plan to set up some chapters in Europe ?

[Danny O'Brien] France like many countries, has a great core of activists and advocates already. We'd be delighted to help them in any way we can.

[Wikinews] A follow-on question regarding the Sony BMG case: Does EFF have a response to the Register article http://www.theregister.co.uk/2005/12/06/eff_needs_to_die/

[Danny O'Brien] Sigh. I wondered if this would turn up. It's a really odd article, given that it includes a bunch of cases that aren't ours, ones that we didn't lose, and other oddities. I think we'd rather let the facts speak for themselves. Here's a list of our [ http://www.eff.org/legal/victories/ victories]. There's a longer list at the wikipedia entry.

[Wikinews] Are there any questions I should have asked you, which I did not?

[Danny O'Brien] Hahah! No, but I'm happy to take additional questions. I'm actually trying to think of some of the harder questions.

[Wikinews] Well, I think I'll ask MrM to unmoderate now, and let everyone mob you.

[MrMiscellanious] :) Alright, here we go...

MrMiscellanious made this room no longer moderated for normal users.

[Danny O'Brien] I guess the question we often get asked is "Why aren't you doing something about X?" where X is a matter that really is important—the simple answer to that is that we have limited resources. Which is why I'm really happy to see lots of other organisations spring up.

[Question] Does EFF support TOR, financially or otherwise, anymore?

[Danny O'Brien] We host Tor's website, but direct funding was for last year. Actually, the Tor questions really are so frequentlyl asked that they're best answered on Tor's FAQ (including the legal FAQ we wrote for them.) http://tor.eff.org/faq.html.en

[Question] en.Wikipedia prevents TOR endpoints from editing on the site; does EFF consider such class-blocking an acceptable response to behavior, or is it generally inappropriate?

[Danny O'Brien] We're disappointed. We hope there's a way of providing a technical solution that would work to support Tor's aims, and would be practical for Wikipedia. If we can work as an intermediary in that discussion, we'd be happy to.

[Question] European organisations which have similar goals like the EFF were not successful in preventing Telecommunications data retention. What conclusions does the EFF draw for their own campaigns?

[Danny O'Brien] I have a long answer to that, with my EFF hat off.

Okay, so the reason I'll take my EFF hat off to answer your question, is because I'm also involved in ORG which is one of those organisations in Europe. The conclusion is that advocacy needs resources. One of the strengths of EFF and other US advocacy groups is they are permanent, with a paid staff. http://openrightsgroup.org

I think that now there are sites like http://www.pledgebank.com around, and facts like the Wikipedia funding drive show that we're getting to the point where we can turn volunteer organisations into groups that have that flexibility, plus financial resources. Which means you get to the situation where the group of volunteers who formed ORG can now work on projects like submitting to UK parliamentary inquiries: http://www.openrightsgroup.org/orgwiki/index.php/APIG_DRM_Public_Inquiry

There are fantastic groups in Europe, like EDRI and FFII and I think the time is now right for those groups to be given more resources by everyone. And I speak as someone who traditionally comes out in hives when money is mentioned. It's a big leap, but I think it's one we all have to work at getting right. Give to them, at exactly the same time as you join the EFF: http://www.eff.org/support/

Danny O'Brien puts EFF hat back on.

[Question] "Danny O'Brien "once successfully lobbied a cockney London pub to join Richard M. Stallman in a spontaneous demonstration of Bulgarian folk dance." Can you give details?"

[Danny O'Brien] RMS is a great fan of folk-dancing, and was teaching me and some friends the dance moves to the Free Software Song in a pub in Shoreditch. Maybe it was the alcohol, all the allegedly viral nature of the GPL, but by the end, we had most of the pub doing them. He loves it, although recently I believe he's hurt his leg and can't do it so much any more

[Question] Wikipedia was earlier attacked by a group, which has launched a website, claiming that Wikipedia should be upheld by law to have 100% factuality in their website (relating to an earlier case where a bogus biography was posted to Wikipedia). What is the EFF's stance on the issue?

[Danny O'Brien] I'm not sure of the site that you refer to, but obviously we'd support Wikipedia on this matter. We don't see any problem with Wikipedia's process.

[Question] There is an article on de.wikipedia (German) about the hacker "Tron". His full offline name is included in the article. A German court has issued an injunction preventing the Wikipedia.de website (the website of the German Wikimedia Foundation) from linking to the de.wikipedia site, which is outside the jurisdiction of that court. What does EFF think about such extranational effects of local laws? Does a person's name, especially a figure as well known as Tron, deserve special privacy? The order was obtained based on a proposal by the deceased hacker's family. And it should be pointed out that the hacker's real name was known for a long time.

[Danny O'Brien] It's a good question: honestly, it depends on the law, and the practicality of the law. I can't speak to the case, particularly as the last I heard, the facts weren't clear. In this case, it's not the territoriality of the law that's of concern, it's whether anyone should be forbidden from linking to a resource.