The Electronic Frontier Foundation and the NSA

The Electronic Frontier Foundation is best known as the preeminent digital rights advocacy group, possibly in the entire world. Think of any noteworthy piece of legislation in the past couple of decades and the EFF has more than likely participated in the drafting of that legislation, critiquing the legislation, or campaigned on behalf of digital rights with regard to the legislation. From the Digital Millennium Copyright Act to the ill-fated Cyber Intelligence Sharing and Protection Act, the EFF has played a major role in ensuring the continuation of basic liberties and rights for all peoples when they are online. Given their largely excellent track record on standing up for the rights of others, it was only a matter of time before they produced a critique of one of the most major scandals of this century: the NSA surveillance controversy.

For those who have been living under a rock, the National Security Agency has been secretly spying on the American population and gathering personal data for several years now and all of these actions have been perfectly legal due to certain legislations. When the scandal broke, the majority of people were and continue to be fearful that this is a gross violation of basic liberties and that there should not be any legal grounds for letting the government spy on its citizenry. It certainly is a troubling development and many in Congress have banded together in order to institute legal reform that will sharply curtail the NS’s overreaching authority to spy on the populace. This is where the EFF comes in.

Advocates Cindy Cohn and Trevor Timm co-wrote an extensive (though not exhaustive) article on what reforms should and should not be present in the reform legislation. Some are fairly obvious, like the reiterated condemnations of the Patriot Act, which has been a legislation that the EFF has long been opposed to but many other observations are quite nuanced in their presentation and reasoning for why these things should or should not be reformed. For instance, the article lays out a sweeping vision of how oversight should be set up so that data collection will be rare, transparent and, most importantly, only carried out when it is an absolute necessity.

This whole story is, admittedly, only tangentially relevant to intellectual property. Sure, there are concerns that if our government can perform this kind of expansive spying operation, perhaps businesses could perform a vastly scaled down version in order to steal other business’s intellectual properties. We already know that Facebook has a program that it uses to mine user data and then sell this data to ad agencies, so clearly there are companies out there that are already capable of utilizing similar programs for financial gain so it’s not too hard to imagine some company figuring out how to produce an operation that could steal more than just personal data for tailoring ads to individuals. Still, the possibility of such a program feels strangely ethereal, abstract and ultimately distant. It doesn’t seem like a problem that is likely to be encountered for a while even though we know that this exact type of program already exists. Maybe it feels so distant because there are not yet any hard examples of a company using a program like this for any negative purpose yet. It is often hard to place a fear without a face or an act to attach to that fear. Fearing the possibility of something happening just isn’t as visceral as fearing an action that has already occurred and can be easily repeated. Regardless, the article by the EFF is terrific and does a great job explaining exactly why the NSA’s authority should be diminished and given more oversight. Hopefully, with their diligent work, fears of corporations coming up with their own similar programs will remain as a distant and unrealized fear.

Interested? Check out this article on the EFF page.

Kevin James
Intern at
JAFARI LAW GROUP®, INC.