Mother American Night

by John Perry Barlow

  Not surprisingly, no one in the newspaper business seemed particularly worried about any of this. Along with the rest of the “straight” media, they were too obsessed by what they portrayed as disruptions of emergency services as well as the awful sociopathic actions of all those involved in such activities. One report expressed relief that no one appeared to have died as a result of all these “intrusions” that had been carried out by the hackers.

  Finally, the Secret Service rewarded the good citizenship of Rich Andrews by confiscating his computer along with all the email, both read and unread, that his subscribers had left on it. Like many others whose equipment and data had been taken by the Secret Service, Andrews was not charged with anything. But they inflicted on him the worst punishment that any computer nerd could suffer: data death. Or, as Andrews said at the time, “I’m the one that found it. I’m the one that turned it in. And I’m the one that is suffering.”

  Insofar as the Secret Service was concerned, association with stolen data was all the guilt they needed to come for you. It was as if the government could seize your house simply because some guest had left a stolen VCR in an upstairs bedroom closet. The first concept of modern jurisprudence to have arrived in what was still not yet known as cyberspace was zero tolerance.

  As I kept on hearing more and more about the vile injustices that had been heaped on my young pals in the Legion of Doom—not to mention also the unfortunate folks who happened to be nearby—I drifted back into a sixties-style sense of the government as a thing of monolithic evil efficiency. I also quickly developed an up-against-the-wall willingness to spit out words such as pig or fascist about what they had done.

  Although these events have now pretty much been forgotten in a digital world where people would like to believe nothing like it could ever happen again, they led to a visit from the FBI that entirely changed my life.

  THIRTY-ONE

  A VISIT FROM THE FBI

  While sitting in my office in Pinedale one day in May 1990, I got a phone call. A voice said, “Hi, this is Special Agent Richard Baxter, Jr.” Wyoming is a small town with very long streets, and I had already met Agent Baxter when he had come up from Rock Springs to do an FBI background check on John Turner before he became the director of the U.S. Fish and Wildlife Service. Agent Baxter had also helped me out with some livestock theft.

  He had always been kind of laconic, but now he seemed anxious and I’d never known him to be like that. I said, “What is this about?” And he said, “I can’t discuss it on the phone. Can we talk in person?” Now I was thinking, Oh God, that’s not good. Everyone knew I was associated with one of the most notorious bands in the world as far as drugs were concerned. Could it be they had finally decided to come get the Grateful Dead and were going to pick us all off one by one?

  When he arrived, Agent Baxter was definitely squirming. It turned out that he was hoping to discover if by any chance I had been the angry hacker who, in May 1989, had gotten hold of a chunk of the highly secret source code that drove the Apple Macintosh computer and distributed it to a variety of addresses, while claiming responsibility in the name of the Nu Prometheus League, a group of anonymous hackers, some of whom had been Apple employees.

  Not surprisingly, Apple was totally freaked out. All they really had to offer the world was the software that had been encoded on the ROM chip of every Macintosh. This set of instructions was the cyber DNA that made a Macintosh a Macintosh. Even worse was the fact that a good deal of the magic in this code had been put there by people who no longer worked for Apple and would do so again only if they were encouraged with cattle prods. Apple’s attitude toward its ROM code was a little like that of a rich kid toward his inheritance: Not actually knowing how to create wealth himself, he guards what he has with hysterical fervor.

  Because poor Agent Baxter didn’t know a ROM chip from a Vise-Grip, I had to spend a lot of time trying to educate him about the nature of precisely what it was that had been stolen. For a good couple of hours, I did my best to explain that the crime he was investigating may not have been actually committed before giving him a pretty solid defense as to why, if indeed it had, I had not committed it.

  Even after I had done this, I wouldn’t swear that Agent Baxter ever quite got his mind around it. When I showed him some actual source code, gave him a demonstration of email in action, and downloaded a file from the WELL, he took to rubbing his face with both hands while peering at me over his fingertips and saying things like, “Whooo-ee! It sure is something, isn’t it? My eight-year-old knows more about these things than I do.” He made this last remark not so much with a father’s pride as an immigrant’s fear of a strange new land into which he had been forcibly moved. When Agent Baxter looked across my keyboard into cyberspace, he most definitely did not like what he saw.

  Why had Agent Baxter come all the way to Pinedale to investigate a crime he didn’t understand that had occurred in five different places, none of which was within five hundred miles of my office? Because Apple had told the FBI that owing to the virulent sentiment against them in and around the Silicon Valley, they could expect little or no cooperation from hackers there. They had advised the FBI to question only hackers who were as far away as possible from the twisted heart of the subculture. Although I was not a hacker, this group somehow included me.

  Agent Baxter didn’t know source code from Tuesday, but he did know that Apple Computer had told his agency that what had been stolen from them and then widely disseminated was the complete recipe for a Macintosh computer. The distribution of this secret formula might result in the creation of millions of Macintoshes not made by Apple, and ultimately the eventual ruination of the company.

  In fact, what had actually been distributed was just a small portion of the code that related specifically to Color QuickDraw, Apple’s name for the software that controlled the Mac’s on-screen graphics. But this was yet another detail that Agent Baxter could not comprehend. For all he knew, you could grow Macintoshes from floppy disks.

  I explained to him that Apple was alleging something like the ability to assemble an entire human being from the recipe for a foot, but even he knew that this analogy was inexact. Trying to get him to accept the idea that a corporation could go mad with suspicion was quite futile because he had a far different perception of the emotional reliability of institutions.

  Eventually, I learned the real reason Agent Baxter had come to see me was because the FBI thought that whoever had done this had also probably gone to that hackers’ conference I had attended in San Francisco. They had been doing surveillance on it. And so while Agent Baxter was not quite coming to arrest me, he was collecting evidence.

  During the course of our extended conversation that day, Agent Baxter asked me about Mitch Kapor, who had written Lotus 1-2-3. By then, I had already done an interview with Mitch for MicroTimes magazine in Silicon Valley. We were friends, and a less likely computer terrorist would have been hard to come by. As it turned out, Mitch was one of the few corporate people who had also been visited by the bureau. That the FBI would want to question him about anything made Mitch very upset.

  That night, I posted a ten-thousand-word essay entitled “Crime and Puzzlement” on the WELL in which I discussed all these matters in great detail. “In over-reaching as extravagantly as they did,” I wrote, “the Secret Service may actually have done a service for those of us who love liberty. They have provided us with a devil. And devils, among their other galvanizing virtues, are just great for clarifying the issues and putting iron in your spine. In the presence of a devil, it’s always easier to figure out where you stand.”

  As I was writing “Crime and Puzzlement,” I was diddling around looking for something to call this brave new virtual world in which we were all just beginning to live. I had read Neuromancer by William Gibson and in it, a voice-over says,

  Cyberspace. A consensual hallucination experienced da
ily by billions of legitimate operators, in every nation, by children being taught mathematical concepts…A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the nonspace of the mind, clusters and constellations of data. Like city lights, receding.

  Although Gibson was the one who had coined the word, which he spelled with a capital C, and was then given due credit for having done so in the Oxford English Dictionary, I decided to begin employing the term in what has become its present usage. The way I defined it back then, cyberspace is where you are when you are on the phone. Cyberspace is where your money is.

  In my essay, I wrote,

  Cyberspace, in its present condition, has a lot in common with the 19th Century West. It is vast, unmapped, culturally and legally ambiguous, verbally terse (unless you happen to be a court stenographer), hard to get around in, and up for grabs. Large institutions already claim to own the place, but most of the actual natives are solitary and independent, sometimes to the point of sociopathy. It is, of course, a perfect breeding ground for both outlaws and new ideas about liberty.

  Several days after I had posted “Crime and Puzzlement,” Mitch Kapor, who was also a denizen of the WELL, happened to read it on his laptop while flying from Boston to San Francisco in his Canadair bizjet. Suddenly, he felt like there was somebody he could talk to about all this. A man who placed great emphasis on face-to-face contact, Mitch called me up from his plane somewhere over Nebraska and asked if he could land in Pinedale.

  After Mitch had literally dropped in on me from out of the sky, I started filling him in on everything I knew. All the while, he grew increasingly anxious. As a spring snowstorm swirled outside my office, we talked for a couple of hours, and Mitch decided the time had come for him to speak up about all this as well.

  Both of us felt like we had been burned in various ways by organizations in the past, and so we were anti-organization. But we also thought we could bloody the government’s nose in a few of the Sun Devil cases and get them to understand that the First Amendment applied to cyberspace as well as the physical world. Which was how the Electronic Frontier Foundation came about.

  THIRTY-TWO

  EFF

  I had imagined that Mitch and I would be doing kind of a Butch Cassidy and the Sundance Kid thing, but it became apparent almost immediately that it was going to require more than two fierce guys to get the job done, even if one of them had a ferocity backed by great wealth. We began it all by announcing that we were going to legally constitute the Electronic Frontier Foundation as a two- or possibly three-man organization that would raise and disburse funds for education, lobbying, and litigation in areas relating to digital speech as well as the extension of the protections guaranteed by the Constitution into cyberspace.

  On the strength of preliminary stories about our efforts that had run in the Washington Post and the New York Times, Mitch received an offer from Steve Wozniak to match whatever funds he was going to dedicate to this effort. Although Woz wanted to be in right away, it was another thing entirely to actually get his money. And so before that ever happened, I got an email from John Gilmore saying, “I don’t have resources like Mitch or Wozniak, but I can do a hundred grand. Would that help?” And I said, “Yes.” Pretty quickly, we had more than a quarter of a million dollars to get the Electronic Frontier Foundation started.

  Our intent was to have the EFF fund, conduct, and support legal efforts to demonstrate that during Operation Sun Devil, the Secret Service had exercised prior restraint on publications, limited free speech, carried out improper seizures of equipment and data, used undue force, and generally conducted itself in a fashion that was arbitrary, oppressive, and unconstitutional.

  Although we knew that acting on behalf of hackers, who were generally beyond public sympathy, was not going to be popular no matter who else might benefit from the results in the long run, our goal was to ensure that all electronic speech would be protected just as certainly as any opinions that were printed or, for that matter, screamed. We wanted to clarify issues surrounding the distribution of intellectual property and help create for America a future as blessed by the Bill of Rights as its past had always been.

  Mitch and I decided that the situation merited the services of a kick-ass free-speech advocacy law firm such as Rabinowitz, Boudin, who had defended Daniel Ellsberg on charges that he had stolen the Pentagon Papers. Leonard Boudin’s daughter, Kathy, was a member of the Weather Underground and had survived the explosion that destroyed a Greenwich Village town house and killed three other Weathermen in 1970. Michael Standard, another partner at the firm, had been representing Timothy Leary when he escaped from prison and gone into exile in Algeria. So I figured I was definitely talking to the right firm to represent us in this undertaking.

  Mitch and I hadn’t yet talked about money, but any time you specifically don’t talk about money, you are talking about money. And so when Mitch asked me to tell a lawyer named Harvey Silverglate everything I knew about Operation Sun Devil, the inference was that Mitch would help support the costs that are always liable to arise whenever you tell a lawyer anything. In the conference call that followed with more of the associates at the firm, I could almost hear the skeletal click as all the lawyers’ jaws dropped. The next day, two representatives from the firm met with Acid Phreak, Phiber Optik, and Scorpion.

  On July 10, 1990, Mitch and I formally announced the establishment of the EFF at a press conference in Washington, D.C. We met with a slew of congressional staffers, legal authorities, and journalists, as well as officials from the White House and the Library of Congress, thereby beginning discussions that we expected would continue over a period of years. We also applied for and were granted 501(c)(3) status, which meant that all contributions to the EFF would be tax deductible.

  As we were gearing up, an interesting bit of ironic serendipity occurred. At one point after I had become infuriated with Operation Sun Devil, I had called the American Civil Liberties Union. Basically they told me to go fuck myself. But they also put me in touch with Jerry Berman, one of the great Washington, D.C. log rollers who had been their chief legislative counsel as well as the founder and director of ACLU Projects on Privacy and Information Technology.

  I called Jerry and told him why I was so concerned about Operation Sun Devil, and he just brushed me off, saying, “Oh, you don’t need me to do that.” But after what we were working on had filtered around his office, Jerry got on it. He then began to unleash the considerable resources of John Podesta, the former chief minority counsel for the Senate Judiciary Subcommittee on Patents, Copyrights, and Trademarks, who had just cofounded a powerful lobbying firm then known as Podesta Associates. Podesta would later go on to become Bill Clinton’s chief of staff (and eventually face a notorious hacking problem of his own during Hillary Clinton’s 2016 presidential campaign), but even then he was one very powerful guy to have on our side.

  By then, Mitch had started a new company that he was fully expecting to go big because its intended purpose was to make it possible for people to do lightning-fast searches of their hard drive for any text string. To this day, I’m baffled as to why it never became a huge deal. He had gotten himself a bunch of office space in Cambridge, Massachusetts, so right away we had a place for our staff to work. Basically, we had somebody there to answer the phone, one lawyer in-house, and one lawyer on retainer from Rabinowitz, Boudin.

  Mitch and I had become the Laurel and Hardy of cyberspace. We began filing suits and winning them. We hadn’t been at it very long at all before we both realized that this was going to go on for all of our natural lives—it was going to go on for centuries into the future. And that future society, if it managed to exist at all, was going to have to work hard to assimilate all of these changes.

  At a certain point, Mitch decided that, for financial reasons and because it was too far outside the halls
of power, he wanted to shut down the Cambridge office. So we moved to a big office on M Street in D.C., where we started to behave like a Washington special interest group. We were lobbying and producing court positions and lobbying and suing and lobbying and suing. That was all Jerry Berman’s doing because by then he had become our executive director.

  Although John Gilmore was not really a founder of the EFF, he was definitely a sustainer. At one point, it was just him and me, and we left Washington, D.C., and brought the EFF to San Francisco, where it was located for a while in Toad Hall, the house that John owns in the Panhandle in which I now live.

  John and I have both derived something from our uneasy relationship because in many ways, it is exactly like my uneasy relationship with Weir. With Weir, I always want something much more ordered, like a comfortable rhyming scheme in a song while he insists on inserting all these additional syllables into my lyrics. In terms of my work with John on the EFF, he has always been the guy who said, “No, there can only be five syllables in that.” In other words, he is like me in our relationship.

  Insofar as Mitch, John, and myself are concerned, this funny kind of serendipity came into play where three clouds that were rotating around one another came into synchrony and ended up producing the Electronic Frontier Foundation, as well as a bunch of other stuff that then became my mission for the next twenty-three years of my life.

  Aside from Operation Sun Devil, a lot of things that had come before helped draw me into doing this. Writing songs for the Grateful Dead taught me that a jealous view of copyright was not necessarily in one’s own best interest. If you were particular about copies being made of your material—something that at that time was still considered to be theft—this did not work to your advantage. The Dead would let anyone tape their shows but not sell those tapes, which led to the creation of a real community.