July 28, 2005 | By Jim Tyre

EFF15: How an Old Fart Traditional Lawyer Became an Online Activist

I've had a rather strong interest in protecting free speech for about 40 years. In the mid-sixties, when I was barely a teenager, I was suspended from school for engaging in activities similar to those described in the most famous case concerning the free speech rights of minors, Tinker v. Des Moines School District. My parents were supportive, they hired a lawyer for me, and my school backed down. When I went to law school and took my first job as a law clerk in 1977, I turned down a higher paying job so that I could work for Paul Selvin, one of the leaders of the fight against the McCarthy-era Hollywood blacklists, and considered by many to be one of the Deans of the First Amendment bar in California.

It's no surprise, then, that free speech work became a part of my practice from the beginning. However, perhaps because I'm considerably older than most EFF staffers (we joke that I'm their adult supervision, but little do they know that I'm an Honorary Teenager), I came to the Internet much later than many, not until about 1995. Quickly, though, I happened upon two issues that piqued my professional curiosity.

The first was censorware, less pejoratively known as filtering or blocking software. The second was the notion that code is speech.

(More after the jump.)

The speech implications of censorware (and the First Amendment implications if used in public institutions) immediately became obvious to me. I studied, I learned, I began to think about how censorware issues might find themselves in court. Then, the President of Solid Oak Software, the makers of CYBERsitter, threatened Peacefire's Bennett Haselton (fittingly, a teenager at the time) with legal action for decoding CYBERsitter's weakly encrypted blacklist and publishing the results. Bennett became my first Internet client. Shortly thereafter, a group called Mainstream Loudoun made a plea for help when the Loudoun County (Virginia) Public Library was considering installing censorware. Some of us put together a scathing review of X-Stop, the proposed censorware, which caused most who had been singing X-Stop's praises to flee like rats from a sinking ship. But the library board went forward. Mainstream Loudoun filed a lawsuit, ACLU intervened on behalf of website owners whose sites were being blocked wrongfully, and six of us formed The Censorware Project to help develop the factual record of X-Stop's foibles. The lawsuit was won, and The Censorware Project continued to expose the dirty little secrets of many censorware products.

In the meantime, I happened upon the famous softie Cindy Cohn and her co-counsel Lee Tien, who were handling the Bernstein crypto export case as (then) outside counsel for EFF. Literally, I knew nothing at all at the time about computer source code, which was precisely why the argument that code is speech, subject to the same First Amendment analysis as other forms of speech, fascinated me. I began asking undoubtedly stupid questions of them, but they seemed to tolerate me. Apparently, they believed that I was learning a few things. After both joined EFF, and when Universal v. Reimerdes, the 2600 DeCSS case went up on appeal, Cindy asked me to write the "code is speech" amicus brief.

And thus began my affiliation with EFF. I've never become an official staff attorney, but I am both a Policy Fellow and a member of the Advisory Board, which means that most of what I do for EFF I do for free. Which, of course, poses the question of who is the real softie.

Happy Birthday, EFF. May your next 15 years be even more successful than your first.


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