Behind the Curve: EFF’s Long Strange Trip

The Electronic Frontier Foundation (EFF) is a peculiar advocacy group. It was founded by Grateful Dead songwriter John Perry Barlow, former Transcendental Meditation organization levitation instructor and accounting entrepreneur Mitch Kapor, and various members of an electronic bulletin board known as The WELL that descended from a new age guru cult/hippie commune known as The Farm.

EFF described its initial agenda as “Internet civil liberties,” a collection of issues memorialized in Barlow’s infamous rant “A Declaration of The Independence of Cyberspace”: the desire of a group of Internet users to be left alone by law and policy while online so they could chart their own path, forge their own norms, and police their own community. This agenda generally conflicts with intellectual  property rights, among other things.

The idea that the Internet embodies norms and values that should govern its development independent of real world law sounds bizarre now that we can see the Internet’s effects on politics, the economy, and civil liberties in the real world, but it made sense to the people of The WELL (Wellberts) in 1990.

This idiosyncratic notion is also the background of the network neutrality principles presuming that past community standards must constrain future Internet service plan details. While it is true that early attempts to regulate Internet conduct (such the Electronic Communications Privacy Act of 1986, the Communications Decency Act, and the Digital Millennium Copyright Act,) were both clumsy and counterproductive, the path to better law goes through legislatures, not around them.

Twists and Turns

Although EFF’s founders viewed the Internet as a kind of digital LSD with the power to meld minds, melt walls, and make the world a gentler place, the organization quickly attracted an element with a realpolitik agenda: Washington lobbyists and power brokers.

EFF was scarcely off the ground when it hired Jerry Berman to serve on its board of directors; he quickly rose to become executive director of the whole enchilada. While the founders had nothing but utopian visions, Berman was more interested in exercising political power for all the usual reasons:

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.

Berman’s signature achievement at EFF was amending the 1994 “Communications Law Enforcement Assistance Act” (CALEA). This law required ISPs to install specialized surveillance equipment and to design their networks in a way that facilitated wiretapping.

Grassroots Revolt

When word got out about EFF’s work on CALEA – as far as one could possibly get from the concerns about the Secret Service raid on Steve Jackson Games that had spurred the formation of EFF – members were outraged:

…many of the group’s grass-roots backers were disgusted by what they saw as spineless pandering and a missed opportunity to oppose and perhaps stop a law that, in their eyes, was unconstitutional. Some of these people’s worst fears about the capital’s corrupting influence seemed to be confirmed. They’d wrung their hands when, in 1992, the EFF moved from Cambridge, Massachusetts, to Washington, DC, arguing it was a bad sign that the group chose to abandon the creative semi-counterculture of Harvard Square for the power-obsessed, backstabbing élite of Capitol Hill. And now this: the EFF’s virtual stamp of approval on an ill-conceived, dangerous new law.

Berman soon left to form the Center for Democracy and Technology, with EFF’s corporate sponsors and chief counsel Mike Godwin (a Wellbert of long, if not altogether good, standing) in tow. All along, Berman said he was acting under instructions from the EFF board, which is probably true.

After an unsuccessful attempt on the part of Barlow to make amends with The WELL, EFF moved its headquarters to San Francisco, the better to shield itself from the corrupting influence of Washington. After the move, EFF occupied itself for a time with traditional public interest law firm activities, such as representing plaintiffs in lawsuits over digital issues and joining class actions.

Friends of Silicon Valley

In its own way, Silicon Valley is at least as corrupting as DC. For all its talk about making the world a better place and promoting grassroots decision making, the Valley is run by powerful, profit-driven venture capitalists and angel investors.

It didn’t take long for EFF to take on the task of promoting the Valley’s commercial interests in weakening copyright and consumer privacy laws. In particular, Google’s goal of “organizing the world’s information” is hampered by copyright insofar as “organizing” includes “making available”.

This has been noted not only by artists harmed by YouTube, but by business rivals who take copyright much more seriously, such as Microsoft:

In a prepared speech to the American Association of Publishers, senior Microsoft lawyer Tom Rubin is expected to hit out at Google for profiting from other people’s work.

“Companies that create no content of their own, and make money solely on the backs of other people’s content, are raking in billions through advertising revenue and IPOs,” he says.

“Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop.”

In 2011 lawmakers introduced copyright enforcement bills aimed squarely at YouTube, SOPA and PIPA, and Google founder Sergey Brin shrieked: “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.” EFF, recipient of a $1.2 million donation from Brin, happily took over the fight to kill the bills; warring with copyright was right in its wheelhouse.

EFF organized email campaigns of a size DC hadn’t seen before and ultimately succeeded in killing the bills through a constant stream of disinformation. Such campaigns are now routine, but less successful as Congress has come to see them as broad but shallow.

Working with Google in Gmail

The advent of Gmail, an ostensibly free service that made money by matching ads to message contents, stirred a lot of concern. The service was literally reading our private communications, albeit in a clumsy, mechanical way that often made bizarre connections.

The fledgling Internet privacy community pushed back:

…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.

When California State Senator Liz Figueroa introduced a bill preventing email providers from analyzing email for targeted ads without affirmative consent – from all parties in the conversation – EFF took her to task. In signature fashion, the organization rounded up friendly voices and spun the privacy issue a way that benefited Silicon Valley: The problem with Internet privacy, EFF said, wasn’t private companies, it was the government.

The solution it promoted was to encrypt email, an approach that doesn’t affect Google’s ability to read email because it does the encrypting and decrypting on behalf of its users. This was nothing more than a smokescreen.

Divide and Conquer

Fighting meaningful privacy regulations is the number one priority of Silicon Valley giants Facebook and Google. Their business models depend on selling targeted ads at premium prices, and this depends on gathering, assembling, and analyzing Internet activities of as many people as possible in as many places as possible. It’s also EFF’s top priority.

The issue is compelling to the public in the wake of the Cambridge Analytica scandal, but the public doesn’t understand where and how Google and Facebook track our web activities. EFF did something helpful in creating Privacy Badger, a tool that reveals the many trackers that see our web visits.

But Privacy Badger doesn’t work with any browsers but Firefox and Opera. A competing tracker-watcher, Ghostery, doesn’t have this limitation and works well with Google’s Chrome. [ed note: hmmm…]

The elevation of privacy to a major public concern meant EFF’s long practice of trying to shift the debate from commercial tracking to government surveillance would no longer work. EFF adopted a slightly nuanced stance, shifting the locus of concern from Silicon Valley to ISPs.

Disregarding Network Effects

Blaming ISPs for Facebook’s Cambridge Analytica misbehavior is an absurd misdirection, but no worse than the net neutrality claim that the only Internet firms any of us has to worry about are the ISPs. Even before net neutrality was created in 2002, there was a growing body of complaints about abusive practices by web-based businesses.

From the 80s to the 90s, airlines fixed fares by coordinating through the online Airline Tariff Publishing system. Microsoft abused its dominance in desktop operating systems – gained in part by a shady deal with IBM – to disadvantage the Netscape browser in the mid-90s. AOL was accused of anti-competitive intent in its acquisition of CompuServe in 1997.

While regulators were concerned with the market power that comes from network effects, EFF argued that platform power is an illusion:

“Services were exhibiting network effects, but those network effects were dying almost as soon as they started up,” says Electronic Frontier Foundation Danny O’Brien, a longtime digital rights activist. That included both internet providers like AOL and early social networks like SixDegrees, which drew millions of users but shut down within a few years of launch.

“One of the things that I think sort of impeded the idea of restricting or breaking up the current incumbents has always been slightly the expectation that the same thing would happen to them,” says O’Brien. “That Facebook would go the same way as Friendster, and a competitor to Facebook would arise and take over.” Wu has called this notion part of the “mythology” holding back meaningful antitrust reform — the idea that large, slow companies will “automatically go away.”

While EFF has argued that platforms don’t have network effects, it has taken an entirely different angle on ISPs.

Obama FCC Champions Silicon Valley Interests

The second Obama FCC, headed by lobbyist Tom Wheeler, enacted a severe privacy regulation in the last weeks of its tenure. Claiming to protect consumer privacy, the regulation barred ISPs from collecting and monetizing the very same data that makes platforms such profitable firms.

The FCC followed EFF’s line: “Forget Google, Comcast is the bad guy!”  The regulation was so blatantly discriminatory that the Republican Congress – no friend of the cable industry – revoked it immediately.

Following the repeal of the Obama era privacy and Title II net neutrality regulations, the fight to protect the Interests of Silicon Valley devolved to state legislatures. EFF hired a former Public Knowledge lobbyist, Ernesto Falcon, out of the McGeorge Law School in Sacramento and happily entered the fight to pass (probably unlawful) net neutrality and privacy laws in the Golden State.

EFF Picks up Where the Obama FCC Left Off – in California

Falcon got his way with the California legislature when it passed the most proscriptive net neutrality law in the entire history of the world, banning most forms of network management, subsidized services, and service differentiation. This was done in the name of free speech, disregarding the fact that nearly all limitations on Internet speech have been imposed by the dominant platforms that benefited from the law and not by the regulated ISPs that were its targets.

Privacy turned out to be a harder problem because the public had already rejected EFF’s claim that ISPs are the problem in all Internet issues. Privacy hawks not in Silicon Valley’s pocket turned to California’s voter initiative and referendum process to bypass the state’s term-limited legislature.

EFF and the rest of Silicon Valley’s sock puppets were forced to enter a negotiation between the privacy hawks and the legislature to draft a bill strong enough for the hawks to take their proposed law off the ballot. Divide and conquer was no longer enough.

EFF was not entirely successful, but it returned to the kind of game Berman had played with CALEA more than 30 years ago. The bill was watered down just enough for the largest platforms to live with it, but it remained strong enough to discourage small firms from doing the kinds of things that made Google and Facebook wealthy.

Grabbing for the Brass Ring

While restrictions on ISP business practices such as net neutrality and differential privacy rules have long been the staples of the public interest groups aligned with Big Tech, they’re basically stop-gaps. Tech doesn’t just want free network attachments and limited competition in the advertising market, it wants to eliminate private communication carriers altogether.

If access to information markets requires ownership of the kinds of global networks of server farms and network infrastructure owned by the Big Five tech firms, dominant players will always be able to see competitors coming. Among other things, this allows the platforms to buy up potential competitors.

Forty years ago, when digital networking was in its infancy, information processing firms such as IBM and financial services firms wanted speedy progress and low prices for digital networking. They also didn’t want new competitors arising from the communications sector. Governments also believed communications companies were a powerful threat to their designs.

The Emergence of Network Unbundling

Hence, a coalition of private and government interests devised a prophylactic that would provide them the services they wanted without threats to their dominance, network unbundling. Unbundling divided communications markets in two, creating highly regulated wholesale infrastructure builders and lightly-regulated retailers of services.

Unbundling followed the privatization of formerly government-owned networks in the UK and elsewhere and the breakup of the Bell System in the US. While unbundling was hoped to provide the first rung of a ladder of investment in Martin Cave’s theory, in effect it did the opposite, discouraging network investment.

The pro-unbundling perspective has been articulated most persistently by former Obama official and current 5G fear-monger Susan Crawford. EFF has come to endorse Crawford’s point of view – as well as that of the Trump Commerce Department – in recent advocacy for unbundled fiber-to-the-home (FTTH) networks

EFF’s Argument for Unbundling

EFF echoes claims that the US is falling behind in networking, confusing the indispensable role fiber infrastructure plays in all networks with the role it plays in the last 500 feet in FTTH. Cable Internet, VDSL, and mobile all use fiber backhaul, but none of them connects it directly to homes.

The average download speed in US residential Internet networks is currently 118 Mbps, 9th in the world and first among large nations. It’s faster than Sweden, Norway, and Denmark, nations often held out as models for the US to emulate by Crawford.

In many forms, fiber cable does support higher broadband speeds than copper or wireless. But that’s more important for backhaul, where hundreds, thousands, or millions of connections are aggregated, than for homes with more modest demands. All we need for the home is a connection that’s good enough to support actual usage today and in the near future.

Consumers Don’t Need Data Center Speeds

Consumers also have different needs from backhaul or data center networks; we value convenience at adequate speeds over the highest score on the Speedtest list. Most consumer devices are connected to wired networks through intermediate Wi-Fi networks for precisely this reason.

We’re also excited about 5G networks because we’ve seen the effects produced by 3G and 4G. We don’t always know what applications the next generation will bring, but we have good reason to be optimistic.

Ever the traditionalist, EFF doesn’t buy the hype around 5G. In fact, Falcon doesn’t even accept 100 Mbps networks as worthwhile:

Without a comprehensive plan for fiber infrastructure, 5G will not revolutionize Internet access or speeds for rural customers. So anytime the industry is asserting that 5G will revolutionize rural broadband access, they are more than just hyping it, they are just plainly misleading people. It will also not provide “fiber-like capabilities,” no matter what was asserted by T-Mobile before the Senate Judiciary Committee as grounds to justify its merger. While a 100 Mbps (essentially 4G LTE speed) is nice, it is nothing compared to the 10-gigabit fiber networks that exist today (and were rolled out three years ago by a local government in Tennessee).

10 Gbps networks are nice – I have one in my office – they’re so far in excess of server speeds that no consumer will be able to distinguish a 10 Gbps connection from a 100 Mbps one for many, many years. 10 Gbps is what you need when you have thousands of users, not when you’re a typical American nuclear family with 2.5 people.

It may very well come to pass that families will be able to use 10 Gbps in the distant future, but there’s no good argument for buying something today that we won’t benefit from for 20 years.

Only the Government Will Pay for a Network Nobody Needs

If you take it as given that every American residence needs 10 Gbps fiber today, you’re in for disappointment. Cable has a system in the lab that will do this, DOCSIS 3.1, but it won’t be fully deployed at 10 Gbps for a few years. 5G will push the gigabit barrier, but it’s not likely to hit 10 Gbps for five to ten years.

Your only option is for a government financed program like the one that seems to be favored by EFF and certain parties in the Commerce Department. But taxpayers aren’t likely to be enthusiastic about funding such a program as long as our needs are being met by current providers and our bills are affordable.

Consequently, EFF is looking for legal leverage to force the government to build such a network. This rightly seems outlandish to anyone but a lobbyist who has successfully led the California legislature into passing an outrageous net neutrality bill.

Searching for Authority

In hope of finding legal authority for a government-financed fiber net, EFF has enlisted the support of the Samuelson-Glushko Technology Law & Policy Clinic (TLPC) at the Colorado law school. With EFF funding, a second year law student at the clinic produced a 19 page analysis of US law on broadband unbundling, “Managing Last-Mile Monopolists: Reevaluating Sharing Obligations for the Modern U.S. Wireline Broadband Market.”

As one would expect from a commissioned work, the paper echoes tropes from EFF’s blog posts: the US broadband market has grown complacent as innovation and investment have stalled; 5G will never be adequate for anyone; and fiber is future proof.

Understating the competitive nature of the wireless market, the paper argues that firms such as Verizon, AT&T, and T-Mobile that fiercely compete for customers or revenue have no incentives to improve their networks and cable Internet is an effective monopoly. The only solution to our degraded (but ninth fastest in the world) networks is the sharing of fiber lines that don’t actually exist.

A Survey of History

While the paper fails to properly evaluate current technology developments such as 5G and DOCSIS 3.1, it does provide a fairly reasonable review of the history of the defunct Bell System and some of the goals of the 1996 Telecommunications Act, designed to create competition for local telephone service through unbundling.

It fails to mention that telephone competition arose not from law as much as from technology, as the mobile phone overtook the wireline network that now serves primarily to connect robo-calls. By the time the FCC decided not to make unbundling the status quo for wired broadband, the writing was already on the wall for the wired phone.

The history of the telephone has limited value for those who seek to discern the future of broadband, but it’s nice to see it summarized so neatly. The paper has 125 footnotes, of which 49 cite two law school textbooks, 24 refer to Crawford’s non-academic book Fiber: The Coming Tech Revolution – and Why America Might Miss It, 11 are blogs or news articles, and two are articles in academic journals.

Where EFF Goes from Here

If history is a guide, we’ll see the paper incorporated into submissions to the FCC and Congress bearing the names of a few dozen long-time supporters of EFF seeking to impose an old regulation on a new technology. Despite the failure of unbundling to produce desired effects anywhere it is tried, the idea retains emotional appeal to people who refuse to see broadband markets as efficient or productive.

In an empirical sense, it’s hard to support the claim that a wireless market that has advanced through four generational upgrades in 20 years is a failure. It’s also difficult to find fault with the market for wireline broadband in which prices have remained fairly constant for twenty years while speeds have increased 100 times on average.

The buildout of 5G and the upgrade of cable from current speeds in the 100s of Mbps to 10 Gbps will both require additional fiber cable to be installed. But the US has routinely installed millions of miles of fiber each year since the turn of the century, so this is nothing new.

The history of telecommunications law is not a roadmap to the future, so EFF’s agenda in supporting this sort of work is unclear. It’s unlikely that lawmakers will take the bait and commit massive spending increase our communications capacity by 1000 times at the expense of the markets that have invested close to $2 trillion in building the networks we have.

Perhaps the time has come to tell EFF what Barlow told lawmakers in 1996: “On behalf of the future, I ask you of the past to leave us alone.” The future of networking is intermodal competition between networks and services that control their destinies.