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Privileged Information: The Fight for an Open Internet. 

Wednesday, Apr 3 2013
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Higgins joined EFF right after SOPA was introduced in the House of Representatives on Oct. 26, 2011. "I started on November 1st," chuckles Higgins. EFF dived headfirst into the fight, spearheading the grassroots campaign that eventually ended up toppling the bill. Along the way, the bill gained the attention of many notable web outlets, not least of which was Google, which protested SOPA prominently on its homepage. Wikipedia staged a blackout. "That was all Aaron," says Higgins. As of Jan. 20, 2012, plans to draft the bill were officially postponed.

A staunch opponent of SOPA, Swartz admitted he didn't care about the issue of copyright initially and couldn't see how it pertained to his life. "Health care, financial reform — those are the issues I work on. Not something obscure like copyright law," said Swartz in a 2012 keynote address at the Freedom to Connect conference in Washington, D.C. Yet as Eckersley told him, it was not copyright that was the issue, but the freedom to connect. "Now," said Swartz to him, "I was listening."

Swartz understood what happens when someone runs afoul of copyright laws all too well. As he said in that same keynote from 2012, "everything" is potentially copyrighted, including the speech he was giving — an inherently absurd idea that can lead to dangerous abuses of power. Such was the case with the Computer Fraud and Abuses Act (CFAA), a 30-year-old act that was the legislative pivot point around which the case against Swartz was based.

As Higgins explains, "[The government] didn't know what hacking was [in 1984, when the act was passed]. They wanted to future-proof it, so if you 'exceed' your authorization, you are committing a felony." This is essentially equivalent to violating a "terms of service" agreement, only in this case if the computer one uses to access said information is defined as a "protected computer," the crime is considered a criminal offense instead of a civil one. According to Higgins, two courts, the Ninth and Fourth circuit, have already rejected it, acknowledging that a prosecutor needs more than a "terms of service" violation to create a federal case.

Shortly after Swartz's January suicide, EFF, in cooperation with San Jose Rep. Zoe Lofgren, began to codify these changes as an amendment to CFAA called "Aaron's Law," which specifies what is meant by the excessively broad offense of "exceeding authorization." Currently, even the common computing practice of deleting cookies can be considered exceeding authorization. Some do this to evade a pay wall by, say, tricking The New York Times into believing that a new user is accessing the system after hitting the free article limit. Some, however, delete cookies simply to protect their privacy, to not be monitored while browsing the Internet, and to avoid receiving advertisements relating to their most recent Google search. Technically, that's a punishable offense under the CFAA.

Perhaps most importantly, Aaron's Law prevents prosecutors from stacking charges; each one of Swartz's violations was counted separately, such that he faced 13 felony charges. What's more, the charges were purposely trumped-up to avoid a trial and coax Swartz into a plea bargain.

Currently, EFF is advocating on behalf of the podcasting community — anyone who hosts or patronizes a podcast — against a so-called "patent troll" claiming to own the patent on podcasting technology. Patent trolls, according to the EFF website, are "companies that assert patents as a business model instead of creating products." These include a Texas-based patent-holding company called Lodsys which targeted numerous app developers, issuing cease-and-desist letters for using a payment feature that it owned. Many of these developers were spooked into compliance, and gave up on their work. This suggests a downside to the free-market structure of the Internet: If compensation inhibits innovation, doesn't everyone lose?


Hacking in its ancestral form, as creative solutions, as open-source innovation, is brought into "the desert of the real" at Noisebridge. A block away from EFF's headquarters resides this Mission District hacker haven and work space. Noisebridge is the creative heart of the open-source movement and the hardest to define of the three organizations. "It's what a library should be," says member Mek Karpeles, a software engineer and entrepreneur. "It offers culture and an outlet for people to get involved, not just consume knowledge."

The space has members but no hierarchy; it charges fees to maintain facilities but offers access to anything that isn't tied down or explicitly claimed as private property. Noisebridge is a self-proclaimed "do-ocracy" where permission is never necessary and self-initiated creative projects are the lifeblood of the facility. Its only caveat: "Be excellent to each other," the proposition of the titular characters of Bill and Ted's Excellent Adventure. Kahle sees Noisebridge as a breeding ground for the next generation of innovators. "Talk to those guys. That's where the real stuff is happening," he says.

At their Monday evening "hackathon," sort of arts-and-crafts night for computer geeks, several young women and men are busy at the long wooden desk that dominates the center of the space, hammering away at laptops that have no clear source of manufacture, either through modification or some more extensive personalization. Behind them are several rows of shelves filled with baskets of freely available electronics, a half-dozen 3-D printers in various states of disrepair, and a more traditional library of books and other resources available for use. There's a kitchen and several workshops. In a back room, a young Russian man is teaching the popular programming language Ruby to 20 eager students, for free.

Despite the busyness of the space tonight, the hackathon event seems to be a non-starter, though there are several soldering irons set up for those who are willing. One of the implicit themes of the space is encouraging a kind of audacity. As a group of presumably unhandy onlookers eye the hot irons reluctantly, an older gentleman hunched over one of the irons makes a proposition.

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Alee Karim

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