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, both for help and for a broader understanding.
So why are there times when we’re quiet about something big that is happening around digital rights? Why are there times when we only say general things and don’t take a firm position, drill down into specifics, or provide the legal analysis that we are famous for? We know it can be frustrating, and can lead folks to jump to conclusions that we don’t care, or aren’t watching.
But most of the time, that’s not the case. Instead, we are being quiet or vague 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 investigating and putting a strategy into place. Quite often, it’s some combination of those.
First, and most of the time, we are protecting the folks who have reached out to us for help. 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 by either the lawyer or the client, the person or a person's attorney can be required to reveal their communications, legal strategies, and evaluations to their opponents. The stakes here can be very high, since that can include the opposing lawyers in a civil case or prosecutors who can put them in jail. Breaching these privileges can seriously 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. Indeed, we have strict ethical duties as lawyers to do this.
Many times, there are multiple people seeking our help, and we need to take time to investigate and decide if we can help them. Even when we cannot, or we cannot help all of them, we almost always take steps to find them other lawyers. And even if we ultimately don’t represent someone, we often learn potentially privileged information as we help find them lawyers. So during this sensitive period, we often stay quiet or say things that are more general and that do not risk the legal or factual status of anyone who has reached out to us for help. Once they are safely in the care of other lawyers, we can usually talk a bit more freely, but often still need to keep some things confidential to preserve the privilege.
Second, at times courts or laws limit our ability to speak. EFF’s work combating National Security Letters (NSLs) is a good example. We had to hide our work representing CREDO Mobile, Cloudflare and earlier, the Internet Archive, as we worked to free them from the gag orders that surround NSLs. In the case of CREDO and Cloudflare it took years before we could reveal our relationship, which meant that we could not comment as specifically as we would have liked to on a number of things related to the case, and on the overarching issue. This led to many awkward and frustrating conversations with EFF members, as well as with reporters, and even members of Congress.
In general, 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. In nearly all court-ordered or law-required gag situations so far, we have ultimately been able to get the court records unsealed.
Finally, there are times when we are simply not finished investigating a case or situation 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. In short, while EFF is often not going to have an immediate hot take on a situation that EFF is directly involved in, when we do speak we will be technically and legally accurate. Where we can, we will tell you where things are going and should go in order to protect the Internet.
While working through this process, the worst thing we could do is to talk publicly before we put a legal strategy in place, understand the technical details, and solidify 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.
However, none of this should keep EFF members, the press, or the public from emailing us at email@example.com 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 – 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, on Twitter or other social media, or on our blog. Feel free to point others to this post if they raise concerns. Just because we’re silent or give answers that seem incomplete in public doesn’t mean we don’t care or aren’t working furiously on the issue.
We believe strongly that everyone’s rights online should be vigorously protected, and sometimes that requires us to be silent.