Speaker 1: Again text technology with tech Stuff from stuff works dot com.
Speaker 1: Hey there, and welcome to tech Stuff. I am your host,
Speaker 1: Jonathan Strickland, and I'm just super I'm also the executive
Speaker 1: producer or an executive producer here ed how stuff works
Speaker 1: and I love talking about technology. And if you listen
Speaker 1: to the previous episodes of tech Stuff, the two that
Speaker 1: came before this, you heard about the the evolution did
Speaker 1: the birth really of the Electronic Frontier Foundation as a
Speaker 1: result of a really bizarre and ultimately over zealous sting
Speaker 1: operation that the Secret Service did back in the early nineties.
Speaker 1: So I want to talk more about the Electronic Frontier
Speaker 1: Foundation and exactly what they do since really I just
Speaker 1: talked about them kind of coming into being in the
Speaker 1: last episode, and you know all about how uh the
Speaker 1: Steve Jackson, who was the target of the Secret Service
Speaker 1: in part of their sting operation, felt that his and
Speaker 1: his employees civil liberties had been violated and was looking
Speaker 1: for someone to help him pursue a claim against the
Speaker 1: United States government, but found that none of the civil
Speaker 1: liberties organizations that were in existence were really prepared to
Speaker 1: help him out because they just weren't savvy as far
Speaker 1: as the Internet goes, and so the Electronic Frontier Foundation
Speaker 1: was borne out necessity by a group of people who
Speaker 1: felt that they're definitely needed to be an organization dedicated
Speaker 1: to defending civil liberties in the Internet space space, especially
Speaker 1: since they foresaw the Internet becoming an increasingly important role
Speaker 1: in our lives. And that has absolutely been the case.
Speaker 1: The Internet has become instrumental to the point where some
Speaker 1: people argue that it is a a fundamental necessity, the
Speaker 1: kind of like food and water. You pretty much need
Speaker 1: the Internet to make a go of it today, which
Speaker 1: is now for at least for on the national level,
Speaker 1: certainly you can make a case for that. Well, we're
Speaker 1: gonna talk more about what the Electronic Frontier Foundation is
Speaker 1: and what they do in this episode. The e f
Speaker 1: F focuses on several broad areas of civil liberties, and
Speaker 1: here's how the organization itself defines that. They actually have
Speaker 1: a selection where they have a page where they talk
Speaker 1: about all of these different ones. And we'll start with
Speaker 1: free speech. So, freedom of speech typically means that the
Speaker 1: people of any given population have the right to express
Speaker 1: their opinions publicly without governmental interference, and a lot of
Speaker 1: countries around the world have this as a fundamental freedom
Speaker 1: codified in some way. Here in the United States, we
Speaker 1: have the Constitution, and freedom of speech is in the
Speaker 1: first Amendment in the Bill of Right, those first ten
Speaker 1: Amendments to the Constitution. Is therefore a foundational right of
Speaker 1: a citizen in the United States. There are some considerations
Speaker 1: we have to make, however, freedom of speech does not
Speaker 1: give you absolute freedom to say anything without governmental interference.
Speaker 1: As it turns out, uh first, the right typically protects
Speaker 1: against governmental abuse. Only that's something a lot of people
Speaker 1: don't seem to understand, is that this concept of censorship
Speaker 1: and denying someone their First Amendment rights. The Constitution protects
Speaker 1: citizens against the government doing this. It's not meant to
Speaker 1: be a an overall protection against any entity doing this
Speaker 1: under any circumstances. So in other words, I make a blog. Alright,
Speaker 1: create a blog, and I include a comments section. But
Speaker 1: I decide that I'm going to monitor those comments, and
Speaker 1: anything I see that's left in those comments I don't like,
Speaker 1: I decide I'm just gonna go ahead and delete it.
Speaker 1: That's perfectly fine. It's not the government that's restricting anyone's
Speaker 1: free speech. But if the government was forcing me to
Speaker 1: erase comments for whatever reason. That would be a violation
Speaker 1: of free speech from a legal standpoint. So I can
Speaker 1: I can create a space, whether it's online or maybe
Speaker 1: I'm hosting a party, and if someone says something I
Speaker 1: don't like, I can tell them that they can't say
Speaker 1: that in my space. Because I'm not the government, I'm
Speaker 1: not violating their First Amendment rights. This is more about
Speaker 1: them being in my space and not just a fundamental
Speaker 1: right as a citizen of the country. Also another thing
Speaker 1: that considers that freedom of speech does have limitations. I
Speaker 1: cannot make false claims against others in an effort to
Speaker 1: harm them in some way. For example, that would be
Speaker 1: slander or libel. Both of those are referencing making these
Speaker 1: untrue claims in an effort to cause harm to another individual.
Speaker 1: That harm might be physical, it might be financial, it
Speaker 1: might be harm to their reputation. Uh, that is not
Speaker 1: a protected form of speech. I also have no legal
Speaker 1: protection if I use my speech to incite others to violence.
Speaker 1: But this gets to be a tricky area. So you
Speaker 1: might find court cases where there's an argument about whether
Speaker 1: or not someone was calling people to violence, and sometimes
Speaker 1: there are specific criteria that must be met, such as
Speaker 1: was there a sense that the call to violence was
Speaker 1: for an immediate response or for some predetermined time. Because
Speaker 1: if that's the case, absolutely not protected by freedom of speech.
Speaker 1: If it's more of a general let's resist, then you
Speaker 1: could argue that should be protected under freedom of speech.
Speaker 1: So it's it's not so cut and dry, it's not
Speaker 1: black and white. A lot of these subtle variations have
Speaker 1: to be hashed out in court cases which can go
Speaker 1: either way. Accords not automatically going to decide in favor
Speaker 1: of one side versus the other, and sometimes they decisions
Speaker 1: can actually be surprising. But speech is protected within certain limits. Now,
Speaker 1: communication online gets to be pretty complicated because you've got
Speaker 1: Internet service providers, you've got financial services, you've got lots
Speaker 1: of different working parts to the Internet, and a government
Speaker 1: can lean on any component within that infrastructure. Right, a
Speaker 1: government agent might come to an Internet service provider and say, hey,
Speaker 1: we're looking for any signs of of criticisms against this
Speaker 1: specific person. We want to suppress that, uh, and we're
Speaker 1: going to do it through your service. Well, that would
Speaker 1: be a form of censorship, and it would be a
Speaker 1: violation of First Amendment rights. Um Even though the actual
Speaker 1: silencing would seem to come from the Internet service provider,
Speaker 1: which you might be able to argue has that capac city.
Speaker 1: It would be ultimately due to government interference or a
Speaker 1: financial company saying, hey, don't allow for any transactions to
Speaker 1: happen with this particular entity because some of the stuff
Speaker 1: they do is illegal. Uh. Because unless everything is illegal
Speaker 1: in that, you know, and unless you can prove that
Speaker 1: all those transactions are illegal, that gets super tricky because
Speaker 1: if there are legal transactions happening, you're preventing those legal
Speaker 1: transactions from actually occurring. So it's a very complicated mess,
Speaker 1: and that's part of the reason why the Electronic Frontier
Speaker 1: Foundation is getting involved in these sort of discussions. It's
Speaker 1: to try and make sure that the rights of citizens
Speaker 1: remain protected. The e f F is also dedicated to
Speaker 1: protecting creativity and innovation, and that's their words. That's a
Speaker 1: big playing field there. Some of the ideas that the
Speaker 1: FF have are pretty simple. So, for example, the e
Speaker 1: f F views copy right law as being somewhat problematic,
Speaker 1: particularly when the entities that own intellectual property overstepped their bounds.
Speaker 1: Copyright definitely has a place. It exists to protect a
Speaker 1: creator or in some cases an owner of intellectual property
Speaker 1: who did not themselves create the content, but they own
Speaker 1: the content. But it protects them from those who would
Speaker 1: reproduce that intellectual property for their own profit. But it
Speaker 1: can also lead to draconian practices and even abuse. Another
Speaker 1: example of protecting creativity and innovation comes in the form
Speaker 1: of fighting patent trolls. So, if you don't know what
Speaker 1: a patentrol is, um, a patentrol is an entity that
Speaker 1: purchases patents not for the purposes of creating or implementing
Speaker 1: a particular technology, but rather withholding that design from other
Speaker 1: entities that could actually put it to use. So it's
Speaker 1: kind of like, let's say you've got an inventor and
Speaker 1: the inventor has come up with a brilliant way of
Speaker 1: create eating a very efficient solar panel, and you pay
Speaker 1: the inventor for the rights to the inventor's patent, and
Speaker 1: she hands the patent over to you, and you've got
Speaker 1: the patent in your hands, and you're like, ha ha,
Speaker 1: it's mine now. And instead of going forward and then
Speaker 1: manufacturing these solar panels and trying to make a business
Speaker 1: that way, you just sit on the patent and you
Speaker 1: look around and you pay attention, and you try and
Speaker 1: see if anyone out there is making solar panels using
Speaker 1: the method that you talked about or that is talked
Speaker 1: about within the patent that you own. Now, patents are
Speaker 1: public documents. Anyone can read them, but you have to
Speaker 1: get the permission of the patent holder in order to
Speaker 1: use the technology, and typically this is done through licensing.
Speaker 1: Some patentrols will license the the technology or processes that
Speaker 1: are in patents. They might charge quite a bit of money,
Speaker 1: but they'll license it. Others won't, and instead, what they
Speaker 1: do is they look for instances of someone using that
Speaker 1: technology or that process and then threaten them with lawsuits,
Speaker 1: typically very hefty ones. And uh it usually is an
Speaker 1: attempt to get the other entity to settle out of court.
Speaker 1: And that's how the patentrol makes money. It's not making
Speaker 1: money by creating technology. It's not even making money by
Speaker 1: licensing technology. It's making money by waiting until someone else
Speaker 1: has tried to use that idea and then pouncing on them,
Speaker 1: which legally they are allowed to do because they own
Speaker 1: the patent. But ethically you might argue, well, all they're
Speaker 1: really doing is withholding something that could be of value
Speaker 1: to people, and they're doing it just so that they
Speaker 1: can jump on any company that has the the desire
Speaker 1: to actually make that technology. So it's a sticky situation
Speaker 1: because on the one hand, you don't want to get
Speaker 1: a get away from the concept of protecting intellectual property.
Speaker 1: You want people to have a reasonable expectation of protection
Speaker 1: so that they can profit from ideas and the work
Speaker 1: that they do. But on the other hand, you don't
Speaker 1: want entities hoarding knowledge and not letting it out unless
Speaker 1: companies are paying exorbitant fees, because that stifles innovation. So
Speaker 1: e f F is very much against the whole patentrol approach.
Speaker 1: One huge area of interest for the e f is privacy.
Speaker 1: This is one of those topics that some people don't
Speaker 1: really consider until the worst has already happened to them.
Speaker 1: So we've been conditioned as citizens of the Internet to
Speaker 1: surrender more and more of our privacy in our online interactions,
Speaker 1: sometimes without knowingly doing so, and occasionally it's because we're
Speaker 1: sharing stuff about ourselves with our friends. So interactions on
Speaker 1: Facebook are a great example. We willingly share information about ourselves,
Speaker 1: it's part of our socialization. But that information isn't just
Speaker 1: going to our ends, it's going to Facebook, which is
Speaker 1: making very good use of that information. They're profiting off
Speaker 1: of it. That is their business, it's how they make money.
Speaker 1: And if we didn't share all this information, then Facebook
Speaker 1: would not have a huge revenue source. Uh, it's certainly
Speaker 1: wouldn't be as successful as it is today. Other times
Speaker 1: we're sharing information because it's a matter of convenience. So
Speaker 1: for example, Amazon has algorithms that will present you with
Speaker 1: suggested items that you might be interested in based upon
Speaker 1: your past browsing and shopping sessions. But again, that means
Speaker 1: that it's collecting information about you and about your habits
Speaker 1: in order to make these kind of suggestions in the
Speaker 1: first place. Now for some people that's not a big deal.
Speaker 1: For other people, they think it's super creepy. And in
Speaker 1: many cases, there's another game going on that's going on
Speaker 1: behind the scenes. That's where the information about us gets
Speaker 1: collected into ever growing dos a's. It might be a
Speaker 1: dossier that doesn't have your name on it, but it
Speaker 1: has all the information that would anyone would need to
Speaker 1: be able to identify you anyway. There's also this other
Speaker 1: kind of slippery slope where companies will say, hey, we
Speaker 1: we use anonymous data. We don't. We don't connect an
Speaker 1: identity to the information we get. We want the information
Speaker 1: so that we can run analyzes, but we don't want
Speaker 1: to say, oh, well, that's that's Bob Smith. That's clearly
Speaker 1: Bob Smith. The problem is the more points of data
Speaker 1: you have about any individual person, the easier it is
Speaker 1: to identify who that person is. And you could even
Speaker 1: argue that the person's name is the least important thing
Speaker 1: about that person from a certain perspective. Knowing all about
Speaker 1: that person in their habits and what they want and
Speaker 1: what they don't want, what they like, what they hate,
Speaker 1: all that is valuable information. The name is superfluous at
Speaker 1: that point, and we should still be concerned about all
Speaker 1: that other information about us. That's the Electronic Frontier Foundation's
Speaker 1: point is that we need to be cognizant that all
Speaker 1: of this information about us is being shared and and
Speaker 1: it's being h collected and stored and sold. There are
Speaker 1: entire companies that exist just to buy and sell user information,
Speaker 1: and that gets a little creepy. Beyond that, there are
Speaker 1: also organizations that are actively spying on people. They're not
Speaker 1: just passively collecting information or or building dossiers. There are
Speaker 1: some that are really performing surveillance upon folks. Take the
Speaker 1: n s A for example, and I don't mean the
Speaker 1: National Scrabble Association, but I do mean the National Security Agency.
Speaker 1: Over the last few years, details about the n S
Speaker 1: AS various surveillance programs have raised lots of red flags
Speaker 1: among numerous civil liberties organizations, including the e f F. Now,
Speaker 1: another issue that the organization concerns itself with is online
Speaker 1: s purity, which often goes hand in hand with privacy,
Speaker 1: and this goes from supporting various encryption strategies to help
Speaker 1: protecting communication from prying eyes to launching the Coders Rights
Speaker 1: Project to protect programmers rights as they work on the
Speaker 1: bleeding edge of technology. The FF advocates for a secure,
Speaker 1: supportive online environment, and they also argue for transparency from
Speaker 1: the various entities that either make up the infrastructure of
Speaker 1: the Internet or use the Internet in some fundamental way,
Speaker 1: which includes holding government agencies accountable and demanding that these
Speaker 1: agencies are forthright about their online activities, which isn't always easy.
Speaker 1: It can sometimes require extraordinary efforts to get the real
Speaker 1: story out of various government agencies about what is actually
Speaker 1: going on, and sometimes it even requires legal action to
Speaker 1: force government offices to change their policies when those policies
Speaker 1: aren't aligned with constitutional protections. That's a fancy way of saying.
Speaker 1: The e f F is sort of a watch dot
Speaker 1: and just making sure that governments are doing the right
Speaker 1: thing for their citizens and they're not working against their citizens.
Speaker 1: And transparency is absolutely important for that because if you
Speaker 1: if you have a policy that's not transparent, that does
Speaker 1: not tell the citizens, hey, this is what's really going on,
Speaker 1: then you've introduced a reason to distrust the government. And
Speaker 1: I would argue the e f F has got a
Speaker 1: very healthy distrust of government and in many ways it's justified.
Speaker 1: In some ways, it may be over zealous, but in
Speaker 1: most ways, I think, uh, the government has given plenty
Speaker 1: of of reasons why the FFS position is not unreasonable.
Speaker 1: You may not agree with it, but you probably would
Speaker 1: at least come to the conclusion that they have reason
Speaker 1: for their behaviors. The e f F also works to
Speaker 1: help free people who are held prisoner for speaking out online,
Speaker 1: particularly people who are journalists or activists, and they also
Speaker 1: try to raise awareness about potentially abusive policies, such as
Speaker 1: electronic media searches conducted at border crossings. You may have
Speaker 1: heard of this in the last several years, where people
Speaker 1: who are crossing over the US border, whether on land
Speaker 1: or by air by sea, will be greeted by border
Speaker 1: officers or custom officials and they will say, hey, we
Speaker 1: want to get hold of your mobile device or your
Speaker 1: computer and make an electronic search of the materials to
Speaker 1: make sure there's nothing questionable on there. And the FF
Speaker 1: steps in and says, hey, unless you've got a warrant,
Speaker 1: then you really can't do that would be unreasonable search
Speaker 1: and seizure to just search somebody randomly like that. Um
Speaker 1: so that that's another one of their big positions. Of course,
Speaker 1: when the e f F first got its start, its
Speaker 1: mission wasn't quite so methodically organized. It all began with
Speaker 1: that court case with Steve Jackson Games bringing it against
Speaker 1: the Secret Service, and that case was instrumental because it
Speaker 1: established in a United States court of law that electronic
Speaker 1: mail should receive the same protections and considerations as telephone communication,
Speaker 1: which means that law enforcement does not have the authority
Speaker 1: to intercept or otherwise read electronic communication without first securing
Speaker 1: a warrant from a judge, and that was just the
Speaker 1: beginning of the FF. The next big case that they
Speaker 1: became involved in was Bernstein versus U S Department of Justice.
Speaker 1: And you might have heard the phrase the pen is
Speaker 1: mightier than the sword. Well, Daniel J. Bernstein's pen must
Speaker 1: have been a real whopper. The US government identified Bernstein's
Speaker 1: work as so dangerous that he was told he need
Speaker 1: to secure an arms dealer license to talk about it
Speaker 1: or to publish his work outside the United States. What
Speaker 1: you might be saying, I know I did. Well, let's
Speaker 1: backtrack a bit. In fact, we're gonna backtrack a lot,
Speaker 1: because that's what I do on this show. So we're
Speaker 1: gonna talk about cryptography. The cryptography branches off of an
Speaker 1: ancient strategy of hiding messages in some way so that
Speaker 1: the person or persons you are contacting are the only
Speaker 1: ones who get the information you're actually sending. And there
Speaker 1: are lots of different ways to do this. There's steganography
Speaker 1: that involves hiding data within some other non secret formats,
Speaker 1: such as inside the code of an MP three file
Speaker 1: or inside of an image. Uh, you could hide it
Speaker 1: with tiny little micro dots on microfilm, which would be
Speaker 1: very difficult to detect unless you knew what you were
Speaker 1: looking for. Or there's encryption in which you take a
Speaker 1: message in one format, you apply some sort of process
Speaker 1: to the message to transform it in some way, and
Speaker 1: then you send that transformed message to the recipient, who
Speaker 1: presumably has a method for reversing this process and gaining
Speaker 1: access to the original message. So a simple version of
Speaker 1: this is just a cipher where you have a set
Speaker 1: of rules, and the simplest of all ciphers would be
Speaker 1: just shifting all the letters down by a slot, so
Speaker 1: A is B B, S C, C is D, that
Speaker 1: kind of thing, and then writing it all out, and
Speaker 1: because the person you're sending it to knows the rules,
Speaker 1: they can reverse that and they can then decipher the message. Obviously,
Speaker 1: cryptography tends to be a little more complicated than that,
Speaker 1: because people are onto us. They figured out the whole
Speaker 1: A S, B, B is C thing, the clever clever people.
Speaker 1: According to the site tech Target, cryptography has four objectives.
Speaker 1: The first is secrecy, which means only the person with
Speaker 1: the proper key, as in the intended recipient, can read
Speaker 1: the original message. The second is integrity, which means the
Speaker 1: message cannot be changed in any way between the sender
Speaker 1: and the recipient without being detected. Next is non repudiation,
Speaker 1: which means that there's no plausible deniability on the part
Speaker 1: of the sender. Uh This is to remove the possibility
Speaker 1: the sender could leave a recipient out to hang by
Speaker 1: denying they ever intended to create or send the message.
Speaker 1: And fourth is authentication, which means that both the sender
Speaker 1: and the recipient can be assured of each other's identities.
Speaker 1: Now that does not mean that all cryptographic systems meet
Speaker 1: all four of those objectives, but a good cryptographic system
Speaker 1: should meet at least most of them, and an ideal
Speaker 1: system would meet all four criteria. So with such a system,
Speaker 1: you can be sure that any message you sent would
Speaker 1: be secure until it got to the right person, and
Speaker 1: that only that right person would be able to decrypt it.
Speaker 1: And further, both of you could be sure the message
Speaker 1: came from and went to the right people. Cryptography is
Speaker 1: used for all sorts of communication, but it's clearly of
Speaker 1: critical importance if you want to send someone information that
Speaker 1: other people absolutely should not see. For this reason, it's
Speaker 1: a big part of diplomacy. For espionage for financial operations
Speaker 1: and other supersensitive activities, and the United States, like many
Speaker 1: other countries, places a very high value on cryptographic strategies,
Speaker 1: which is why the US government decided to include cryptographic
Speaker 1: systems in its documentation for International Traffic in Arms Regulations. Now,
Speaker 1: this is a document that effectively defined cryptography as a
Speaker 1: weapon itself under a category thirteen of Title twenty two,
Speaker 1: Chapter one, sub Chapter M of the Code of Federal Regulations.
Speaker 1: You'll see the title Auxiliary Military Equipment. And here's an
Speaker 1: excerpt from that section. Information Security systems and Equipment, cryptographic devices,
Speaker 1: software and components specifically designed or modified therefore including cryptographic
Speaker 1: including key management systems, equipment assemblies, modules, integrated circuits, components,
Speaker 1: or software with the capability of maintaining secrecy or confidentiality
Speaker 1: of information or information systems. Now, the reason why I
Speaker 1: just give the whole list is to show that the
Speaker 1: United States government to find cryptographic systems as a weapon
Speaker 1: under the official United States Munitions List, and as such,
Speaker 1: only a licensed authority would be allowed to export such
Speaker 1: a weapon. In the case of cryptographic systems, that meant
Speaker 1: you would need a license to either distribute the code
Speaker 1: or publish the information. Now, Daniel Bernstein wanted to do
Speaker 1: both of those things. He actually wanted to talk about
Speaker 1: this cryptographic approach he had developed and to distribute electronic
Speaker 1: programs that could create these sort of cryptographic messages themselves,
Speaker 1: and he called it Snuffle. She's pretty harmless. And we'll
Speaker 1: learn more about Snuffle and his legal battles in just
Speaker 1: a second, but first let's take a quick break to
Speaker 1: thank our sponsor. So Bernstein developed a pretty straightforward system
Speaker 1: as a grad student at the University of California at
Speaker 1: Berkeley in ninet for cryptographic systems. It used an encryption
Speaker 1: key to generate some seemingly random tech XT, which then
Speaker 1: could be run in an x or process against a
Speaker 1: message you intended to incipher. This inciphered text could then
Speaker 1: be sent to your recipient and they would use their
Speaker 1: copy of the encryption key to essentially reverse the process
Speaker 1: and read the original message. It gets a little more
Speaker 1: technical than that, but that's really the key of it.
Speaker 1: Bernstein's method was called a zero delay private key encryption system,
Speaker 1: which I mean it could be used in real time
Speaker 1: communication between two individuals who are sharing a common private
Speaker 1: encryption key. Bernstein's approach relied on that cryptographic hash function,
Speaker 1: which in itself was a perfectly legal approach, should have
Speaker 1: been upheld as being not that's not a munition, it's
Speaker 1: not a weapon. But Bernstein's implementation created a strong encryption system,
Speaker 1: and that was what the United States government had determined
Speaker 1: was illegal to distribute. So it wasn't so much the
Speaker 1: encryption approach, but rather the description of how to use
Speaker 1: it that was deemed to be illegal for export. Bernstein
Speaker 1: sought out permission to publish his algorithm. He wanted to
Speaker 1: also publish a paper to describe the algorithm, and also
Speaker 1: a computer program that could run the algorithm, and he
Speaker 1: wanted to present all of them in an electronic conference.
Speaker 1: So he petitioned the State Department. Even though his own
Speaker 1: work had no connection to government funding, uh or anything
Speaker 1: any state funding. There's nothing that was coming through too
Speaker 1: to connect his work with any sort of official government process.
Speaker 1: So what would happen if he had skipped this permission
Speaker 1: step and if he had just gone ahead and done
Speaker 1: it well? According to US law, exporting a weapon to
Speaker 1: a foreign agent could result in a ten year jail
Speaker 1: sentence and a million dollar criminal fine, and that's just
Speaker 1: for start. So that would mean because the government classified
Speaker 1: cryptographic systems as a type of weapon. In his petition,
Speaker 1: Bernstein wrote, quote and effect, what I want to export
Speaker 1: is a description of a way to use existing technology
Speaker 1: in a more effective manner. I do not foresee military
Speaker 1: or commercial use of Snuffle by anyone who does not
Speaker 1: already have access to the cryptographic technology contained in I
Speaker 1: do foresee practical use of Snuffle by those who do
Speaker 1: have such access, in particular for the purpose of interactively
Speaker 1: exchanging encrypted text end quote. The State Department rejected his
Speaker 1: request and said that he would have to obtain a license.
Speaker 1: The response said, this commodity is a standalone cryptographic algorithm
Speaker 1: which is not incorporated into a finished software product, which
Speaker 1: meant that unlike various copyright protection schemes and other implementations
Speaker 1: that included encryption, Bernstein's approach was just the method of
Speaker 1: encrypting data, and therefore that's what made it subject to
Speaker 1: these rules, which is kind of crazy when you think
Speaker 1: about it. It's essentially saying, hey, if if your approach
Speaker 1: was actually part of a piece of software, you might
Speaker 1: not even be running into these issues. But you're just
Speaker 1: specifically talking about how to encrypt data. So Bernstein submitted
Speaker 1: five separate requests to publish the source code for encryption,
Speaker 1: the source code for decryption and English explanation of how
Speaker 1: to encrypt data and English description of how to decrypt data,
Speaker 1: and the original paper. The State Department would lump all
Speaker 1: of those requests together in a single one and denied
Speaker 1: them unilaterally. Bernstein then contacted the Electronic Frontier Foundation as
Speaker 1: he felt his First Amendment rights were being violated. Now
Speaker 1: this was in This was years after his initial attempts,
Speaker 1: as the wheels of government do not turn quickly, and
Speaker 1: the e f F agreed to support his case and
Speaker 1: they brought a lawsuit against the government, stating that the
Speaker 1: law was unconstitutional and that the State Department had overstepped
Speaker 1: its authority. Now, the legal proceedings lasted four more years,
Speaker 1: so this is a decade out of Bernstein's life that's
Speaker 1: just dedicated just getting this cryptographic software published. The court
Speaker 1: ultimately decided that software code is a type of speech
Speaker 1: and therefore is covered by the protections of the First Amendment,
Speaker 1: which meant the court agreed with the e f F
Speaker 1: that the State Department's actions were unconstitutional. As such, the
Speaker 1: United States coders can now create encryption software and publish
Speaker 1: it or export it without first securing permission from the
Speaker 1: US government, which is a pretty huge deal. Several of
Speaker 1: the cases that the e f has participated in have
Speaker 1: set important precedents in law. It's not just that the
Speaker 1: e f F has helped the tech sector, but that
Speaker 1: is played an instrumental role in extending the protections that
Speaker 1: exist for one type of expression to the technological realm.
Speaker 1: So one of the big arguments the e f makes
Speaker 1: over and over again is that if this were any
Speaker 1: other form of communication, there would be no question that
Speaker 1: the First Amendment protection extends to it, because, as there's
Speaker 1: plenty of precedent to show, so what makes technology technological
Speaker 1: expression so much different than these other formats? And the
Speaker 1: response over and over again has been, well, there really
Speaker 1: is no important distinction between them, and therefore those First
Speaker 1: Amendment rights should absolutely extend to electronic communication. So the
Speaker 1: e f F has played a big role in just
Speaker 1: making sure that this kind of of technology and this
Speaker 1: kind of expression receives that same protection one of those cases,
Speaker 1: uh or really to go through all of the cases
Speaker 1: the ff has been part of, would be ridiculous. It
Speaker 1: would require many many many more episodes, and I'm not
Speaker 1: going to do that, will do an overview of a
Speaker 1: few cases and kind of explain how the outcomes were important.
Speaker 1: So one of those cases helped differentiate protection against piracy
Speaker 1: versus establishing an anti competitive practice. And this is kind
Speaker 1: of interesting because it doesn't involve communication over the Internet,
Speaker 1: but it does involve technology. The case was called lex
Speaker 1: Mark versus Static Control, and it all had to do
Speaker 1: with toner cartridges, like printer cartridges. Lex Mark makes laser
Speaker 1: printers and Static Control would sell remanufactured, refilled toner cartridges. Now,
Speaker 1: in case you're not aware, toner cartridges are where the
Speaker 1: real money is at. With printers. There are a lot
Speaker 1: of companies that will sell their printers at a loss
Speaker 1: and make up for it in toner sales. After all,
Speaker 1: if you don't have toner printers, not very much good
Speaker 1: to you. So Static Control would compete with lex Mark
Speaker 1: by offering compatible toner cartridges at a lower cost. Lex
Speaker 1: Mark in turn sued Seatic Control, claiming that this amounted
Speaker 1: to piracy, but the e f F and Static Control
Speaker 1: were able to argue that this was not a valid
Speaker 1: claim and that what lex Mark was really trying to
Speaker 1: do was force customers into lex Marks ecosystem and only
Speaker 1: purchase lex Marks products, So their actions were meant to
Speaker 1: suppress legitimate competition. Now, not all victories are so straightforward.
Speaker 1: In the mid two thousand's, the Supreme Court heard a
Speaker 1: case in which twenty eight companies that were led by
Speaker 1: MGM Studios sued Groster as well as Streamcast for copyright infringement.
Speaker 1: Roxter was built on top of the Morpheus peer to
Speaker 1: peer file sharing software. File sharing software allows users to
Speaker 1: connect in sort of an ad hoc network and share
Speaker 1: files with one another. So think of it as you
Speaker 1: download some software that allows you to log into a
Speaker 1: service that connects you with other users that are using
Speaker 1: that same software, and you can share files that you've
Speaker 1: stored in a specific folder with anyone else that's on
Speaker 1: that network. They can share files that they've stored in
Speaker 1: folders on their machine that have been designated as valid
Speaker 1: folders with you, and you can download these files, and
Speaker 1: if there are multiple people who have that file on
Speaker 1: their machines, your downloads go much more quickly because it
Speaker 1: can pull information from any or all of those machines simultaneously.
Speaker 1: So even if a connection between you and computer A
Speaker 1: is bad. It can still pull data from computers B
Speaker 1: through Z as long as they all have instances of
Speaker 1: a file of that specific file, so there's nothing illegal
Speaker 1: about that. Peer to peer sharing is perfectly legitimate as
Speaker 1: a means of distributing data. However, the Supreme Court found
Speaker 1: that roxter had effectively promoted the use of its service
Speaker 1: to engage in copyright infringement, and as such was responsible
Speaker 1: for the acts that happened on its service. However, there's
Speaker 1: a previous decision that was made by the Supreme Court
Speaker 1: involving Sony Corporation versus the Universal City Studios are University
Speaker 1: Cities do. Is also known as the Beta Max case.
Speaker 1: Beta max being a a magnetic tape format kind of
Speaker 1: like VCRs the old VHS versus Beta Max wars. But
Speaker 1: that particular case established the technologies manufacturer is not responsible
Speaker 1: for the way it's customers use that technology if it's
Speaker 1: outside the stated purpose of said technology. So if I
Speaker 1: make a type of tech that allows you to record
Speaker 1: stuff on it, and I say the reason for this
Speaker 1: is so that you can make a backup recording of
Speaker 1: media that you already own, backup recordings are perfectly legal.
Speaker 1: It's a type of fair use in the United States.
Speaker 1: So assuming that's what you're using the thing I made,
Speaker 1: that's why you're using it, and how you're using it,
Speaker 1: everything's fine. You're using it legally. But then let's say
Speaker 1: that you use that same technology to record something that
Speaker 1: you do not own, and then maybe even record copies
Speaker 1: of that and distribute it. That would be outside of
Speaker 1: what I stated the technology was for. And by this
Speaker 1: argument of safe harbor, I could perhaps get out of
Speaker 1: any liability for the way that you are using my
Speaker 1: technology because you're using it in a way that I
Speaker 1: did not intend, and it's not my fault if you
Speaker 1: use the technology poorly. Just like if I am selling
Speaker 1: pies and you buy a pie, I'm not responsible if
Speaker 1: you throw that pie in someone's face instead of just
Speaker 1: sitting down to have a delicious slice of pie. It's
Speaker 1: not my fault. I just made the pie. I still
Speaker 1: want pie right now. You guys who are long time
Speaker 1: listeners of tech stuff, you know that's my secret. I
Speaker 1: always want pie, like the Incredible Hulk. Anyway, in Groxter's case,
Speaker 1: the court decided that the service had encouraged users to
Speaker 1: engage in unlawful activity, but Court was also very careful
Speaker 1: not to tread too far and negate those safe harbor
Speaker 1: aspects that were established during Sony and University University City studios.
Speaker 1: Those safe harbor protections now extend to software, though again
Speaker 1: with the caveat that there must be legitimate use for
Speaker 1: the technology that does not require unlawful behavior. So again,
Speaker 1: peer to peer networking is by itself a perfectly reasonable
Speaker 1: means to distribute information across the network of computers. There's
Speaker 1: nothing illegal inherently about it. That people use that technology
Speaker 1: for piracy is not necessarily surprising, but at the same time,
Speaker 1: it's not the only or even intended purpose of that tech.
Speaker 1: Another case I have referenced on this show involved Sony's
Speaker 1: use of DRM measures on their music CDs. It used
Speaker 1: to be a thing music CDs. I don't know how
Speaker 1: many of you out there still listened to CDs, But
Speaker 1: Sony had this bright idea, why not include some software
Speaker 1: on music CDs that could prevent people from ripping those
Speaker 1: tracks on to a computer and then distributing them willy nilly,
Speaker 1: hither thither and yawn across the Internet. And boy did
Speaker 1: things go wrong from there because Sony's approach introduced an
Speaker 1: incredible vulnerability onto customer computers. Back in two thousand five,
Speaker 1: Sony Music Entertainment, which in those days was actually known
Speaker 1: as Sony b MG, included what they called an extended
Speaker 1: copy protection feature on music CDs and and all. That
Speaker 1: also included a copy of some software called Media Max
Speaker 1: c D three, And if a customer were to put
Speaker 1: their brand new Sony b MG manufactured music CD into
Speaker 1: a computer, the computer would auto install the software on
Speaker 1: the c D and that would give Sony a heads
Speaker 1: up as to what was going on. So, in other words,
Speaker 1: Sony could keep track of what you were doing with
Speaker 1: your computer. And the whole justification here was that Sony
Speaker 1: wanted to be on alert in case people were ripping
Speaker 1: those c ds in or to burn pirated copies for
Speaker 1: other people, or otherwise distribute the music illegally. The software
Speaker 1: coasted under the noses of anti virus and anti spyware programs.
Speaker 1: They just didn't detect it, and it created a backdoor
Speaker 1: vulnerability for infected systems, which allowed the potential for hackers
Speaker 1: to leverage those vulnerabilities and install malware on affected computers. So,
Speaker 1: if you'd like an analogy, it would sort of be
Speaker 1: like if Sony showed up at your house, got a
Speaker 1: hold of your keys, made a copy of your house keys,
Speaker 1: and then they just left those key copies laying around
Speaker 1: where anyone could grab them and walts into your home
Speaker 1: and take whatever they wanted. It was not good. Now
Speaker 1: we call this the Sony root Kit because it gave
Speaker 1: rude access to affected machines and it was distributed by Sony.
Speaker 1: When news got out of what had happened, Sony b
Speaker 1: MGS president of Global Digital Business, a guy named Thomas
Speaker 1: Us said the wrong thing at the wrong time. He
Speaker 1: specifically said, most people don't even know what a root
Speaker 1: kit is, so why should they care about it. Yikes.
Speaker 1: That's like saying most people don't realize that their back
Speaker 1: door is unlock, so why should they care. It's It's
Speaker 1: patently ridiculous. The e f F filed a class action
Speaker 1: lawsuit against Sony to force the company to make amends
Speaker 1: for the choices they made, and ultimately Sony was able
Speaker 1: to settle out of court with the e f F.
Speaker 1: The organization also pressured sun Calm, which was responsible for
Speaker 1: one of the elements that created the root kit in
Speaker 1: the first place, and Suncolm was forced to patch its
Speaker 1: software and remove security flaws. Now the e f f's
Speaker 1: work also reminds me what a strange and amazing thing
Speaker 1: the Internet is. The Internet allows people to find others
Speaker 1: who share their own interests and hobbies, and to find
Speaker 1: enrichment through sharing with those people. One such group would
Speaker 1: be embroidery fans, as in people who enjoy embroidering stuff,
Speaker 1: which seems like a pretty harmless group of people, and
Speaker 1: it's easy to imagine them using the Internet because they
Speaker 1: might want to form some clubs to chat about projects
Speaker 1: or share patterns, and that's actually where the problems began.
Speaker 1: There was a group of embroidery pattern publishers and vendors
Speaker 1: who banded together to form a new group called the
Speaker 1: Embroidery Software Protection Coalition or e SPC. They were concerned
Speaker 1: with preventing piracy of various embroidery patterns and programs, and
Speaker 1: their target was an online community of embroiderers. Like many
Speaker 1: such communities, the members on this online discussion group use
Speaker 1: nicknames or handles on their profiles. So the e s
Speaker 1: PC wanted to file defamation claims against some of the
Speaker 1: members of that discussion group. So what they did is
Speaker 1: they issued a subpoena demanding that the organization received detailed
Speaker 1: personal information about everyone who was part of that discussion group,
Speaker 1: regardless of whether or not they had ever even posted
Speaker 1: a message to the group. So, in other words, if
Speaker 1: you belong to this group, even if you had never
Speaker 1: said anything one way or the other, you'd never engaged
Speaker 1: in any kind of of copyright infringement. They wanted all
Speaker 1: your personal information so they could make a decision about
Speaker 1: whether or not to sue you. Now, the e F
Speaker 1: got involved and argue that this was an unreasonable and
Speaker 1: unlawful tactic. And after the e F made it clear
Speaker 1: that it would provide legal support for the embroiderers, the
Speaker 1: e s PC withdrew its subpoena. E F State Attorney
Speaker 1: Core and McSherry issued a statement that read quote, E
Speaker 1: s PC should have never filed this frivolous case in
Speaker 1: the first place, but where pleased that E s PC
Speaker 1: now understands that it can't use the courts to intimidate
Speaker 1: those who who want to talk about E s p
Speaker 1: C s ham Thisted tactics. The First Amendment forbids such
Speaker 1: abusive use of the discovery process. So what they're saying
Speaker 1: is all these embroiderers who are on this online discussion
Speaker 1: group and saying, well, this this group over here is
Speaker 1: being really unreasonable. The actions that group took was way
Speaker 1: more unreasonable, you know, saying, Hey, they're saying nasty things
Speaker 1: about us, so we want to know who they are. Yikes.
Speaker 1: There are dozens of other cases we could look at,
Speaker 1: but I think after we come back from the next break,
Speaker 1: will focus instead on some of the other work the
Speaker 1: e f F has been involved with outside of legal cases,
Speaker 1: So we'll talk about that after this quick break to
Speaker 1: thank our sponsor. Now, the Electronic Frontier Foundation does more
Speaker 1: than just jump into legal battles. It also helps develop
Speaker 1: and distribute various tools to make the use of the
Speaker 1: Internet more secure and protect the privacy of folks when
Speaker 1: they're online. One of those tools is a browser extension
Speaker 1: called Privacy Badger. This extension blocks websites from using brows
Speaker 1: trackers on you without your permission. Now, those trackers could
Speaker 1: otherwise keep tabs on which sites you are visiting and
Speaker 1: your browsing behaviors in general, and as e f says
Speaker 1: in their page on the tool, quote, if an advertiser
Speaker 1: seems to be tracking you across multiple websites without your permission.
Speaker 1: Privacy badger automatically blocks that advertiser from loading any more
Speaker 1: content in your browser. To the advertiser, it's like you
Speaker 1: suddenly disappeared. End quote. Another extension that they offer is
Speaker 1: HTTPS Everywhere, which is an encryption tool. This extension can
Speaker 1: encrypt communications with many different websites to help improve the
Speaker 1: security of your web browsing. So some websites have pages
Speaker 1: that support HTTPS encryption you see that little lock that
Speaker 1: shows up in your address bar, but some websites have
Speaker 1: certain pages that are still over unencrypted h T t P.
Speaker 1: The extension that the f F offers rewrites all require
Speaker 1: to go through HTTPS and keep everything nice and jumbled
Speaker 1: up for any snoops that happened to be out there.
Speaker 1: And there are other tools that you can learn about
Speaker 1: over at the e f F website to help keep
Speaker 1: you and your browsing safe. And part of what the
Speaker 1: organization does is raise awareness of potential threats to civil
Speaker 1: liberties in proposed legislation or corporate practices, which is not
Speaker 1: always about filing a court case, though that does sometimes
Speaker 1: end up being part of it. If it goes far enough.
Speaker 1: On the e f site, you can find numerous articles,
Speaker 1: blog posts, and white papers about important civil liberties issues,
Speaker 1: and some of them deal with pretty thorny subjects and
Speaker 1: some require you to really keep control of your emotions.
Speaker 1: For example, on January three, the e f F submitted
Speaker 1: a letter opposing a proposed act in South Carolina called
Speaker 1: H three zero zero three, also known as the Human
Speaker 1: Trafficking Prevention Act. Now, immediately, that's an incredibly charged topic. Clearly,
Speaker 1: human trafficking is an evil act and any decent person
Speaker 1: would oppose it. So why would the e f F
Speaker 1: come out against legislation meant to prevent occurrences of human trafficking? Well,
Speaker 1: the key here is the language inside the act itself.
Speaker 1: As their letter would state, the Act requires any entity
Speaker 1: wishing to conduct business in South Carolina quote that manufacturers,
Speaker 1: distributes or sells a product that makes content accessible on
Speaker 1: the Internet. End quote to include in the product a
Speaker 1: digital blocking capability that blocks online access to quote obscenity,
Speaker 1: child pornography, revenge pornography, or any hub that facilitates prostitution,
Speaker 1: and websites that are known to facilitate any trafficking of
Speaker 1: persons end quote Well, the e f F maintains that
Speaker 1: the proposed legislation is and this is, from their letter,
Speaker 1: a gross violation of the free speech rights of Internet users,
Speaker 1: particularly given that content filtering technology is inaccurate. The bill
Speaker 1: also violates the privacy of consumers by requiring them to
Speaker 1: engage in invasive interactions with companies in order to deactivate
Speaker 1: the blocking feature. The bill creates an exorbitant new tax
Speaker 1: for both Internet users and companies wishing to opt out
Speaker 1: of the regulatory regime. The bill violates the rights of
Speaker 1: online service providers by penalizing them for content created by
Speaker 1: their users. The bill further hurts companies by requiring costly
Speaker 1: technical features that may ultimately discourage business in the state
Speaker 1: of South Carolina. End quote now. The e f F
Speaker 1: points out that in the effort to filter out illegal material,
Speaker 1: the enforcement of this act would undoubtedly sweep up legal
Speaker 1: stuff as well, so you would get both illegal and
Speaker 1: legal things filtered out of your view. And while the
Speaker 1: Act does contain some language in that it requires entities
Speaker 1: to restore access to legal material if you file acclaim
Speaker 1: against it, this still represents a First Amendment harm and
Speaker 1: the e f also states that the language is so
Speaker 1: broad that it could encompass any company that makes any
Speaker 1: device that allows access to the Internet, so that could
Speaker 1: include computers, smartphones, tablets, set top boxes, WiFi routers, modems,
Speaker 1: and more. Every single type of technology would be required
Speaker 1: to have some sort of filter on it. The FFS
Speaker 1: argument is not that human trafficking isn't a problem or
Speaker 1: that it shouldn't be taken seriously. Their argument is that
Speaker 1: the proposed act fails to address that problem while simultaneously
Speaker 1: courts unconstitutional implementations. So, as of the recording of this podcast,
Speaker 1: that act is currently still in committee in the South
Speaker 1: Carolina House of Representatives, and it has been there since
Speaker 1: January two thousand seventeen. The f F also offers up
Speaker 1: helpful papers the all sorts of topics from the Internet
Speaker 1: registries that are least likely to give up details on
Speaker 1: domain owners, to a list of government data requests and
Speaker 1: how various Internet service providers and other companies responded to
Speaker 1: those requests. So, in other words, it tells you these
Speaker 1: are the partners that aren't going to give you up
Speaker 1: under just a casual request from the government. The e
Speaker 1: f F also provides information on civil liberties, the best
Speaker 1: practices to follow to ensure your rights are protected, and
Speaker 1: also deep dives on the areas of focus I mentioned
Speaker 1: at the top of this episode. Now, you may not
Speaker 1: agree with every stance the e f F takes. I
Speaker 1: know there are some that I personally find a little problematic,
Speaker 1: though I also admit that I sighed more often with
Speaker 1: the e f than otherwise. As a nonprofit organization, they
Speaker 1: depend upon donations in order to fund their work, and
Speaker 1: there's also a shop where you can buy products and
Speaker 1: the money goes to support e f f's efforts. Some
Speaker 1: of the examples of merchandise you could purchase include things
Speaker 1: like kickers or r f I D blocking wallets were
Speaker 1: temporary tattoos if you really want to, you know, sport
Speaker 1: the e f F logo on your bicep. But that's it.
Speaker 1: On the e f F, the organization continues to play
Speaker 1: an important role to make sure that corporations and governments
Speaker 1: don't compromise our civil liberties in the online space. I
Speaker 1: suspect that we're gonna have a need for the e
Speaker 1: f F for many years to come, as online technology
Speaker 1: continues to insinuates itself into all aspects of our lives.
Speaker 1: As that happens, those protections are going to become more
Speaker 1: and more important. So that wraps up this episode. If
Speaker 1: you guys have suggestions for future topics I could cover
Speaker 1: on episodes of tech Stuff, why don't you send me
Speaker 1: a message and tell me about your big old ideas.
Speaker 1: Smart guy, smart lady, smart people. I'm I'm being serious,
Speaker 1: I'm not being sarcastic. I really would love to hear
Speaker 1: your ideas. You can get in touch with me using
Speaker 1: the email address tech Stuff at how stuff works dot com,
Speaker 1: or if you prefer to communicate via Twitter or Facebook,
Speaker 1: you can find the text stuff handle at either of
Speaker 1: those locations. It is text stuff h s W. And remember,
Speaker 1: you can go to twitch dot tv slash tech stuff
Speaker 1: to watch me record these shows live. You can watch
Speaker 1: as I make mistakes or occasionally curse into the microphone.
Speaker 1: Sometimes that happens like today, but the only way you
Speaker 1: ever get to see it is if you go to
Speaker 1: twitch dot tv slash tech stuff because the wonder producer
Speaker 1: Ramsey is very good at taking those things out before
Speaker 1: the show goes live. So come and see me record live.
Speaker 1: I do it on Wednesdays and Fridays. The schedule is
Speaker 1: up at twitch dot tv slash tech stuff, and I'll
Speaker 1: talk to you again really soon for more on this
Speaker 1: and thousands of other topics. Because it has stop works
Speaker 1: dot com wh wh