Is EFF defending corporations from people whose lives have been RUINED, like attorney Carrie Goldberg claims? Part 2 (EFF’s Response)

The following is the statement this blogger received from Cindy Cohn, Executive Director of EFF, in response to my request for their response to Carrie Goldberg’s tweets and allegations that appear in Part 1 of this series.

Thanks for writing, and thanks for giving me a few days to respond and for the offer to publish it in full. This Twitter thread has misunderstood some of what we do at EFF, and I think it takes an unduly narrow frame. As a result, I wanted to make sure that I could answer in detail.

First of all, I want to be clear about EFF’s dedication to privacy: it’s been a lynchpin of our work for nearly 30 years, and one of the big reasons I get out of the bed in the morning. Right now, we are litigating a number of important privacy cases. Here are three:

Jewel v. NSA
EFF is suing the NSA and other government agencies on behalf of AT&T customers to stop the illegal unconstitutional and ongoing dragnet surveillance of their communications and communications records.

Alasaad v. Nielsen
EFF and ACLU are suing the federal government on behalf of 11 travelers whose
smartphones and other electronic devices were searched without a warrant at
the U.S. border.

Center for Genetics and Society v. Becerra
Two social justice organizations—the Center for Genetics and Society and the Equal Justice Society—and an individual plaintiff, Pete Shanks, have filed suit against the state of California for its collection and retention of genetic profiles from people arrested but never convicted of any crime. EFF and the Law Office of Michael T. Risher represent the plaintiffs.

We are also working on privacy laws across the country:

In particular, we’re currently concerned about attempts by tech companies like
Verizon, Facebook and Google to water down these provisions, either at the
state level, or by federally pre-empting them:

EFF is also fighting stalkerware and spouseware:

EFF has also loudly criticized tech giants for their privacy violations and their “surveillance business model,” including filing an FTC complaint against
Google for their tracking of students: https://www.eff.org/press/releases/google-deceptively-tracks-students-internet-browsing-eff-says-complaint-federal-trade

Here are some recent posts, but there are literally hundreds of them in the
past couple of years taking tech companies to task on privacy:

This isn’t recent. We were criticizing the companies on privacy long before
it became fashionable:

Finally, we build a tool that helps protect your privacy online, as well as working hard to encrypt the web:

Privacy Badger https://www.eff.org/privacybadger

And that’s just a sliver of the privacy work we do. You can find more here:
https://www.eff.org/issues/privacy

In her tweet thread, Carrie Goldberg brings up three specific cases where she
disagrees with us. One case she calls Cooper v. Broems et al, which EFF was
not involved with, but in her description of it, it sounds like Doe v. Tumbler, in which we did submit an amicus (friend-of-the-court) brief. In this case (https://www.eff.org/deeplinks/2017/07/everyone-should-have-real-chance-defend-their-anonymity), almost 300 Tumblr users reblogged a sexually explicit video of a 17-year-old girl created 10 years ago. The person in the video (suing as Jane Doe) wants to sue those users for distribution of child pornography and intentional infliction of emotional distress. EFF does not argue that she can’t sue, only that the users should be given adequate time to find a lawyer and go to court to defend their anonymity if they so choose.

It’s important to note that this is a privacy case in both directions. Giving these users notice does not mean that justice cannot occur. But Tumblr, no matter how careful it tries to be, may disclose the wrong account information, effectively fingering the wrong people. And these people might have other defenses—for example, perhaps someone else used their account or they are being framed. If this identification process is not done carefully, close to 300 Tumblr users could be accused of engaging in child porn, and put under tremendous pressure to settle any claims, whether or not they did it or have valid defenses. And once lost, their anonymity cannot be recovered, and they could be permanently mistakenly associated with child pornography forever. This isn’t theoretical; we’ve seen this happen in other cases where people are misidentified but quickly settle rather than defending themselves because any such charges, even if they are later dropped or disproven, can be devastating to their lives. Again, this is not to say that the Doe in this case should not have redress for her very real suffering. EFF is asking only that this case proceed with care for all involved.

The other two cases cited in the tweet thread have to do with Section 230 of the Communications Decency Act. This is a provision in the law that allows people – whether a local blog, a news website or social media giants – to host other people’s comments or other posts without being sued for what the users say (with some exceptions). CDA 230 is making news lately, with hearings in Congress and a lot of tech leaders speaking out about it, most of whom misunderstand it. But for those who believe the Internet should remain a
place where ordinary people, rather than just those with power, get to have a voice, it’s critical. It ensures that platforms aren’t pressured into silencing speech of their users by threats of (or actual) litigation. Without Section 230, platforms – especially smaller platforms — would have to respond to everyone who complained about something someone else said on the platform with the fear that if they didn’t take down the speech, they could be sued and held responsible for the speech as if they themselves said it. The result is that fewer platforms would exist and those that did would quickly move to shut down anything that gets a complaint – a result that will fall disproportionately on those users without power.

So the question is not whether someone did something wrong online or who we “side” with in those situations – it’s about whether the courts should hold the platform that hosted the speech responsible for that wrong. For example, in one case she mentions, Herrick v. Grinder, the plaintiff wanted to hold the online dating site liable for an unconscionable string of harassment, likely perpetrated by an ex-boyfriend. EFF argued, and the court agreed, that the harasser should be held responsible, not the platform.

Another case, Daniel v. Armslist, is very similar. Armslist is an online marketplace for weapons, and that’s where a man allegedly bought a gun from another user that he used to kill four people. Members of one victim’s family sued Armslist for the sale, and EFF wrote an amicus brief, explaining that allowing the case to go forward against the marketplace would hurt small businesses across the country trying to provide ways for people to sell things on the Internet. This does not mean that killers should go free: it means that we should direct the punishment to the perpetrators, not the platforms.

We understand that standing up for Section 230 means having to stand up for the platforms even when what was said or done using them is pretty awful and plays a role in real harm. We also understand that not everyone agrees with us about the value of Section 230 and its importance in providing Internet users with forums and services that let them speak. But we believe that protecting these intermediaries ultimately protects all of us – just as roads provide a service both to the families that drive on them and kidnappers that use them for getaways.

The difference between these two positions can be illustrated by a successful legislative initiative to weaken Section 230, SESTA/FOSTA. In opposing SESTA/FOSTA, we argued that while its intention — to make intermediaries liable for sex-trafficking on their platforms — was appealing to lawmakers and those fighting sex-trafficking, the consequences would in fact end up targeting some of the under-represented and at-risk communities. The horrible problem of sex trafficking was real, but holding platforms responsible for it was misplaced.

As predicted, when SESTA/FOSTA passed, the immediate result was the silencing and erasure of sex-worker forums, with the consequent endangering of many in that community.

You can read our predictions here: https://www.eff.org/deeplinks/2017/09/stop-sesta-whose-voices-will-sesta-silence

I can’t speak for those most affected by the passage of that bill, but encourage you to read what sex-workers and their organizations have had to say about the consequences:

I’ll also note that SESTA/FOSTA was, by the time of its final passage, supported by the major social media platforms. Section 230 is often portrayed as a special favor to big tech companies, but those companies are ultimately willing to negotiate its weakening, with the knowledge that the speech it protects is often from the most controversial, the weakest, and least remunerative voices on their platforms.

We’ll continue to stand by those voices, and see protecting Section 230 as part of that work. Ms. Goldberg is of course free to disagree with us, but I find it pretty frustrating that she would try to portray this policy disagreement about platform liability and due process for the accused into an argument that EFF doesn’t care at all about privacy or hasn’t spent 29 years defending it.

The tweet thread also raised some questions about EFF accepting cy pres settlements. We have been the lucky recipient of cy pres monies over the years, and we appreciate that courts have awarded it to us —it helps us do the important work we do. Contrary to the implications of Ms. Goldberg, the cy pres we received in many cases, and including I believe all of the cases she mentioned, was not in lieu of compensation to the people hurt. Instead, it was the funds left over after the plaintiffs were given a chance to collect under the settlement – in others words, when a fund is set up for cy pres but not all of it is claimed, courts often assign the remainder to nonprofits like EFF to avoid having to give it back to the companies that caused the problems in the first place. In other privacy cases we have received money directly, when it is difficult or impossible to compensate those harmed, but that’s not generally the situation in the robocall cases she cites. Certainly, I can understand people getting frustrated with the inefficiencies of the class-action system in dealing with privacy invasions. I often feel that way too. But as we work for a safer and more private world, cy pres settlements are one way that EFF can continue to do our legal work, our activism, and our technology development to protect user privacy, including in all the ways I listed above.

I also think there’s some misunderstanding about why and how we receive this money. Recipients of cy pres are selected by parties in a class-action – plaintiffs and defendants generally and sometimes just the plaintiffs. All such awards are reviewed and must be approved by a judge. We don’t lobby or “hustle” for this money, nor do we nominate ourselves to receive it; we do accept it when offered. As Ms. Goldberg notes, we play no part in the class-action lawsuits that provide this money, which is intended to punitively transfer money from the violators of privacy to groups who work to protect it. It comes with no strings of influence by the parties. None of the donations that we receive influence our policy work, particularly not this unpredictable additional source. We often do not know that we were chosen until after the award was approved. In the end, we attempt to use it in the spirit in which the courts award it.

Finally, I want to make sure that I answer all of your specific questions:

When people are being stalked online or harassed, whose side is EFF on?

At EFF, we fight for people being stalked and harassed every day. I mentioned above the important work that EFF and Director of Cybersecurity Eva Galperin have done on stalkerware and spouseware. We also have a whole Threat Lab team aimed at protecting people from all kinds of surveillance technologies:

https://www.eff.org/deeplinks/2019/04/effs-new-threat-lab-dives-deep-surveillance-technologies-and-their-use-and-abuse

It is EFF’s long-standing position (as well as the law, properly applied) that online harassment and stalking are not protected by the laws of free speech. Whether deployed by the state or by individuals, they are part of the weapons that are used to silence vital and underrepresented voices online.

When people are asserting their right to anonymous speech, whose side is EFF on?

Anonymous speech is a very important part of our First Amendment rights. Just this month, we fought for an anonymous Reddit commenter who wanted to discuss the Jehovah’s Witness community without risk of being “disfellowshipped”:

https://www.eff.org/deeplinks/2019/05/reddit-commenters-fight-anonynmity-win-free-speech-and-fair-use

We’ve fought for the Doe standard in cases across the country, to protect critics and whistleblowers from retaliation. We are also fighting to protect the anonymity of the women who contributed to the “Shitty Media Men” list, who were trying to call attention to harassment in journalism: https://www.eff.org/deeplinks/2018/10/lawsuit-seeking-unmask-contributors-shitty-media-men-list-would-violate-anonymous

This is a particularly important case, as it shows how anonymity is critical for people who need to communicate information to protect others, while still protecting themselves and their career.

We frequently encounter the belief that if Internet users were stripped of anonymity, then it would be a safer and more civil place. Our position is that this is not borne out by the lived experience of either of those who are targeted by those unashamedly using their real identities, nor those who use anonymity to protect themselves from harassment, stalking, and worse. For instance, Facebook has long pursued a model of “real names” and “authentic identities”, with negative consequences for queer, indigenous, and other under-represented people. (See
https://www.eff.org/deeplinks/2015/12/changes-facebooks-real-names-policy-still-dont-fix-problem)

At the same time, Facebook remains a place where harassment still continues. We’ve fought for the ability of Internet users to adopt pseudonyms and reject being tied to their “wallet names.”

You can see more of our work here: https://www.eff.org/issues/anonymity

We do believe anonymity can and should be pierced in specific cases, with the help of courts who decide when it’s constitutional. EFF helped develop the legal standards for when this is the case and we believe that courts—and rules like the Doe standard—are how we protect the right to speak anonymously while zeroing in on abusers and people unjustly hiding behind a pseudonym. We go
into detail about the issue in this blog post:
https://www.eff.org/deeplinks/2015/01/facing-challenge-online-harassment

When the person asserting their right to anonymous speech is a stalker and/or mentally ill harasser, whose side is EFF on?

We are on the side of the people who have suffered through these abusive behaviors. As I said above, online harassment is a digital rights issue. It causes real and lasting harm to people as well as to the Internet as a whole. But as that blog post I linked above details, many proposed ways to regulate online anonymity—whether through laws or corporate polices—are bound to cause even more harm. We’ve seen again and again how terms of service for websites aren’t used to combat harassment, and instead are turned used as weapons brandished by abusers against the most vulnerable. And sadly, we don’t have a lot of trust in law enforcement to start taking online harassment seriously. Instead, we think that empowering users is the best bet, which is why Eva’s work—and the work of Threat Lab as a whole—is so important.

Again, thanks so much for getting in touch with your concerns. I know this response is long, but I feel strongly about this issue. You’ve been a good friend to EFF over the years—as a donor and but more importantly as a fellow activist—and I’d love to continue this conversation if you have any more questions.

There’s a lot in EFF’s response to think about and to respond to, but I will save my own comments and follow-up for a later date.

When I contacted Ms Goldberg to inform her that I would be blogging about her tweet thread and EFF’s response, she asked for an opportunity to convey her thoughts in a more developed format that a rant on Twitter. You can read her expanded response to EFF in Part 3 of this series.

Anyone who wants to respond can use the Comments sections under the posts in this series, or if your response is lengthy, email it to me at [email protected] and I’ll think about posting it as a separate post or Part 4 of the conversation.

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