March 28, 2011 | By Cindy Cohn

Where’s EFF? Why EFF Is Sometimes Quiet About Important Cases

When legal issues light up the Internet, people turn to EFF for answers.  Whether it’s attacks on coders' rights, overreaching copyright claims online, or governments' efforts to censor or spy on people, we are often among the first to hear about troubling events online, and we're frequently the first place people turn to for legal help. 

So why are there times when EFF is involved in an important case but is silent or gives only limited information about it?  Usually it’s for one of three reasons: to protect the people who have asked us for help, because of a specific court requirement or because we’re putting the strategy into place.   

First, the legal protections for attorney/client communications and attorney work product allow lawyers and their prospective or existing clients to speak frankly with each other and to honestly evaluate the strengths and weaknesses of their cases. But these communications and notes must be kept strictly confidential in order to remain protected.  If the confidentiality is broken, the person or a person's attorney can be required to reveal their communications, legal strategies, and evaluations to their opponents – including to prosecutors who can put them in jail or opposing civil lawyers. Breaching these privileges can hurt the people who ask us for help and undermine our chances of winning a case, so we are very careful to avoid doing so.

Other times, a court limits our ability to speak.  A recent example of this is when the government demanded information from Twitter as part of its Wikileaks investigation, where we were subjected to a court sealing order.  In this Twitter records case, we are representing Birgitta Jonsdottir, one of the Twitter users whose records are being sought by the U.S. government.  Initially, the fact of our representation was the only thing we could acknowledge publicly.  The court documents in the case were filed under seal, and we could not even discuss the hearing we were preparing for, leading to many awkward and frustrating conversations with EFF members as well as reporters.  However, we asked the judge to unseal the court records, and she ultimately did unseal nearly all filed documents in the case to be released to the public, including news of the hearing.  In such cases, we press as hard as we can to get the legal proceedings made public, especially for cases involving important personal privacy and free speech implications. 

Finally, there are times when we are simply not finished investigating a case to determine whether to take it, or are taking the initial steps to put a strategy into place.  Here’s a page outlining some of the things we consider when making those decisions.  This often involves not only gathering background information, but also conducting a legal and technological analysis of the situation.  We also try to help people find other lawyers for cases we can't take.  While working through this process, the worst thing we could do is to talk publicly before a legal strategy is in place and before EFF has solidified our role.  This is especially true when the legal situation is in flux, as when emergency legal relief is sought or when some of the people potentially involved have not yet been notified or identified.  We’ve had a few of those recently – close watchers of EFF may have some guesses about specific instances where this has been the situation.

However, none of this should keep EFF members, the press, or the public from emailing us at when something is happening that potentially requires EFF's involvement.  EFF members and the general public are an essential part of our early warning system – a form of crowdsourcing that helps us have a much broader view of what’s going on and where the important cases are occurring.  But we hope you will understand if we answer your call or email with limited detail or if we hold back from commenting extensively in the press or on our blog.  We believe strongly that everyone’s rights online should be vigorously protected, and sometimes that requires us to be silent.

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