On Friday, July 10, the Electronic Frontier Foundation celebrated its 25th anniversary. The San Francisco-based group has been a stalwart of tech and legal advocacy since its founding and has played a key role in a number of seminal cases.

To celebrate, Ars interviewed Executive Director Cindy Cohn, who mentioned that, within the list of cases that the organization has worked on, she had a number of favorites.

Here’s a quick summary of those cases, in chronological order.

Case name: Bernstein v. Department of Justice

Filed: February 21, 1995

Highest court reached: Ninth Circuit Court of Appeals

Decided: May 6, 1999

Result: Court ruled that computer code is speech, and is protected by the Constitution.

This was one of EFF’s first significant cases, and it won big.

Back in 1995, Daniel Bernstein, then a doctoral student at the University of California, Berkeley, wanted to be able to publish “Snuffle.” This program converted a one-way hash into a private-key encryption system. He wanted to publish not only the algorithm involved, but a mathematical paper explaining it, and the relevant source code. However, federal arms regulations forbade him from doing so. He and the EFF challenged this interpretation of the law on First Amendment grounds.

The initial district court decision (1996) stated:

This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French....Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it....Thus, even if Snuffle source code, which is easily compiled into object code for the computer to read and easily used for encryption, is essentially functional, that does not remove it from the realm of speech....For the purposes of First Amendment analysis, this court finds that source code is speech.

Three years later, the Ninth Circuit ruled along similar lines, and took the time to discuss the relationship between encryption and privacy:

Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb. The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption's bounty. Viewed from this perspective, the government's efforts to retard progress in cryptography may implicate the Fourth Amendment, as well as the right to speak anonymously, see McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1524 (1995) , the right against compelled speech, see Wooley v. Maynard, 430 U.S. 705, 714 (1977), and the right to informational privacy, see Whalen v. Roe, 429 U.S. 589, 599-600 (1977). While we leave for another day the resolution of these difficult issues, it is important to point out that Bernstein's is a suit not merely concerning a small group of scientists laboring in an esoteric field, but also touches on the public interest broadly defined.

Case name: MGM v. Grokster

Filed: October 2, 2001

Highest court reached: Supreme Court of the United States

Decided: June 23, 2005

Result: Court unanimously ruled that Grokster and Streamcast (both file-sharing companies) could be sued for inducing copyright infringement.

In this case, EFF defended StreamCast Networks, which made the Morpheus file-sharing software. While the defendants ended up losing the case, the EFF portrayed it both then and now as a partial win as the Supreme Court did not go as far as the entertainment industry wanted it to.

Crucially, the court declined to overturn the 1984 "Betamax doctrine,” which came from the case of Sony v. Universal City Studios. That case established that a technology cannot be stifled if it has “substantial non-infringing uses.”

As Justice Steven Breyer wrote in his concurring opinion:

Sony's rule is strongly technology protecting. The rule deliberately makes it difficult for courts to find secondary liability where new technology is at issue. It establishes that the law will not impose copyright liability upon the distributors of dual-use technologies (who do not themselves engage in unauthorized copying) unless the product in question will be used almost exclusively to infringe copyrights (or unless they actively induce infringements as we today describe). Sony thereby recognizes that the copyright laws are not intended to discourage or to control the emergence of new technologies, including (perhaps especially) those that help disseminate information and ideas more broadly or more efficiently. Thus Sony's rule shelters VCRs, typewriters, tape recorders, photocopiers, computers, cassette players, compact disc burners, digital video recorders, MP3 players, Internet search engines, and peer-to-peer software. But Sony's rule does not shelter descramblers, even if one could theoretically use a descrambler in a noninfringing way. 464 U. S., at 441-442; Compare Cable/Home Communication Corp., supra, at 837-850 (developer liable for advertising television signal descrambler), with Vault Corp., supra, at 262 (primary use infringing but a substantial noninfringing use).

Case name: Hepting v. AT&T

Filed: January 31, 2006

Highest court reached: Ninth Circuit Court of Appeals

Decided: Dismissed in 2009

Status: While the Ninth Circuit heard oral arguments in August 2007, Congress eventually passed a law the following year granting retroactive immunity from such lawsuits under the FISA Amendment Act (FAA). The case was dismissed in 2009, and while the EFF appealed unsuccessfully all the way up to the Supreme Court (which declined to hear the case), the dismissal stood.

This was a monster of a case that originated from a former AT&T technician, Mark Klein. He eventually approached the EFF in person with the story that he had discovered a “secret room” at an AT&T facility in San Francisco. Klein testified that he was told that this room was designed to split off traffic and capture it on behalf of the National Security Agency.

Within months of Hepting being filed, dozens of other similar suits were filed against telecommunications companies as the press began to confirm Klein’s testimony. Those cases were consolidated into a larger case called “In re NSA,” for which EFF was the lead counsel.

As this case began to gain steam, Congress took up the issue in the FISA Amendment Act, granting a retroactive protection for all telecom companies that helped the government. So the case became moot.

Case name: Jewel v. NSA

Filed: September 18, 2008

Highest court reached: United States District Court, Northern California

Decided: Not yet

Status: Although the EFF lost a key partial summary judgment in February 2015, the case continues. Later, in May 2015, US District Judge Jeffrey White ruled that Carolyn Jewel’s Fourth Amendment rights had not been violated, and therefore that element of the case could not proceed. The EFF has since appealed to the Ninth Circuit.

In the 2008 original complaint [PDF], Jewel and the other plaintiffs alleged that the government and AT&T were engaged in an "illegal and unconstitutional program of dragnet communications surveillance conducted by the National Security Agency and other Defendants in concert with major telecommunications companies." The evidence stemmed from materials leaked by former San Francisco AT&T technician Mark Klein in 2006. As Jewel was and remains an AT&T customer, her communications were intercepted by the company on behalf of the NSA, her attorneys argued.

The court was unmoved by Klein’s testimony, as Judge White wrote in his order:

However, the Court finds that Klein cannot establish the content, function, or purpose of the secure room at the AT&T site based on his own independent knowledge. See Fed. R. Civ. P. 56(c)(4). The limited knowledge that Klein does possess firsthand does not support Plaintiffs’ contention about the actual operation of the Upstream data collection process. Klein can only speculate about what data were actually processed and by whom in the secure room and how and for what purpose, as he was never involved in its operation.

Case name: In re National Security Letters

Filed: March 14, 2013

Highest court reached: Ninth Circuit Court of Appeals

Decided: Not yet

Status: The Ninth Circuit heard oral arguments on October 8, 2014—the EFF is awaiting the court's ruling. The lower District Court initially set aside a National Security Letter (NSL) declaring that the relevant law, 18 U.S.C. § 2709 and parts of 18 U.S.C. § 3511, were unconstitutional.

While nearly all of this case remains sealed, here's what we do know: someone received two NSLs. These letters, which typically come with a gag order that prevents the recipient from talking about them, require the production of telecom and financial records without any court approval. It is a strong type of secret subpoena that by the Department of Justice's own count has been used nearly 200,000 times between 2003 and 2006 alone.

Here, in its initial brief, the EFF wrote:

Petitioner respectfully requests that the gag provisions of the NSLs be set aside and that the NSL Statute be declared unconstitutional as it allows the FBI to impose a prior restraint without prior judicial review, as well as an injunction prohibiting the FBI from seeking to enforce the gag provisions.

The EFF is currently arguing two more NSL-related cases.