Bridge to the Hill

CDT forges tough political alliances

Jerry Bermans old row house sits in the center of Washington, D.C.s Capitol Hill, the thumping heart of the nations body politic. Books, alphabetized and divided into fiction and nonfiction, plaster the walls, swamp the basement, emblazon space with titles promising existential doubt, historical analysis, mystery. The grand brass chessboard looms on the coffee table.

Yes, its just a dwelling — a charming, porch-happy house on a quaint street where Berman raised his children. But its also a man in microcosm.

Capitol Hill, books, chess: pure Berman. The only disconnect between the man and his house is the abodes lack of controversy.

Berman, executive director at one of the Internets premier public policy shops, is a man bent on working — and in his case, even living — in the thick of things. He cherishes research and knowledge as keys to policy-making authority. His mind turns constantly, vertiginously, on matters of strategy.

He also makes waves — and sometimes enemies — when he wades into sticky technology policy issues.

The Center for Democracy and Technology — the organization he built, from a Web site and a handful of policy wonks in 1994, into a D.C. powerhouse — has become Capitol Hills nerve center for a knot of Internet civil liberties issues. It is also a key bridge to two often opposing camps on the technology policy front: corporate America and civil liberties advocates.

CDTs dauntingly bright lawyers and activists burrow into law books and grope to finesse legalese that will somehow satisfy corporate executives, politicians and civil liberties activists. They get involved with Internet rulemaking bodies, like the World Wide Web Consortium (W3C) and the Internet Corporation for Assigned Names and Numbers (ICANN), and tussle for influence. They embroil themselves in volatile debates about issues like cryptography-export regulations, digital signature rules and broadband open access schemes. And they toil to shepherd to the market new technologies, like the Platform for Privacy Preferences (P3P), touted as an alternative to laws.

The organization prides itself on building coalitions between corporate and civil liberties interests, and on engaging in the policy "process," which inherently involves compromise.

But critics charge that CDT, which gets a big chunk of its roughly $1.8 million annual budget from corporations, is so beholden to its private-sector donors that it caves in on nettlesome civil liberties issues far too easily.

Last year, for example, CDTs budget was about $1.6 million, roughly $340,000 of which came from Microsoft and America Online combined.

"There is an old saying in business: An organization grows to resemble its customers, " said Jason Catlett, an Australian computer scientist and consultant, who, through his indefatigable pursuit of online privacy purity, has become a high-profile privacy advocate. "However much Jerry might claim to be independent, I think the forces are irresistible. . . . Their position on privacy is too weak and too influenced by their industry sponsors."

But Jack Krumholtz, Microsofts director of federal government affairs, called Berman "one of the leading lights in the technology policy community," saying Microsoft gives CDT money, not for lock-step adherence to Microsofts wishes, but because of the coalition-building and educational role it plays on Capitol Hill.

"The value is not that its another voice in your chorus," he said. "Jerry has played an essential role as facilitator or convener of various interests around some of these key issues, industry being one of these interests. Jerry has really worked hard and has credibility on all sides of many of these issues, and has worked hard to facilitate a dialogue and at times promote possible solutions."

In the privacy debate, for example, Microsoft believes Congress "should move cautiously on the issue of legislation," Krumholtz said. CDT, meanwhile, clearly favors privacy legislation.

Crafting Compromise

As technology increasingly pervades all policy arenas, lawmakers and their staffs often turn to CDT for analysis, guidance and help. And CDT responds.

The cadre of staffers running the operation — most of them attorneys — gets involved in back-and-forth negotiations over policy and end up wielding a healthy dollop of influence.

Is this good for the Internet? Is compromise inevitable and acceptable?

"Someone has to talk about what it takes to get something done," said Berman, enveloped in a soft antique chair in his living room recently. "I believe that taking a principled stand is important, but if your principled stand keeps you out of the arena, then you have to take responsibility for what the arena produces."

Bermans longtime rival, the famously prickly Marc Rotenberg, president and executive director at the Electronic Privacy Information Center, contributed only the following pithy remark, via e-mail, with regard to CDTs approach to public-policy engagement: "Compromise — a good umbrella but a poor roof."

One thing is clear: Among the lawmakers and bureaucrats in Washington, D.C., who make all-important civil liberties and technology decisions, CDTs input is sought- after, listened to and respected.

"I would say they are the leader in the private sector on these issues," said Jodie Bernstein, the director at the Federal Trade Commissions Bureau of Consumer Protection. "They have a high degree of credibility as people who understand technology."

The Clinton administrations privacy czar, Peter Swire, extolled CDT as an "outstanding organization."

"Unlike some other groups, CDT has made a decision to try to be in the room when deals are being made," he said. "Advocates need to be able to speak strongly and critique from the outside, but there also needs to be someone in the room when actual language is being drafted and difficult trade-offs are being made."

Rep. Bob Goodlatte, R-Va., co-chair of the Congressional Internet Caucus, praised CDT staffers exhaustive knowledge of technology and public policy.

"The secret of Bermans success is he listens to people," Goodlatte said. "He effectively represents consumers concerns about privacy and civil liberties and other issues related to the Net, but he also makes a real effort to understand the problems that the high-tech industry, law enforcement and others are confronting."

The realpolitik approach has been a Berman hallmark from the beginning, and it has influenced the thinking of those in Bermans orbit.

"I call it pragmatic radicalism, the notion that you can have very strong public interest concerns . . . but you must have a pragmatic approach to continue to preserve them," said Deirdre Mulligan, director at the Samuelson Law, Technology and Public Policy Clinic at the University of California-Berkeleys law school. Mulligan helped found CDT and worked there as an attorney until earlier this year. "For me, it was a great place to be and it was very hard to leave."

Berman "taught me the perfect can be the enemy of the good," said Jonah Seiger, who also helped found CDT and left to start his own online advocacy and strategy consulting firm, Mindshare Internet Campaigns. "Its sometimes the best option to take an incremental step towards a largeobjective. His critics dont appreciate or acknowledge that distinction."

Son of a Union Man

Berman, 61, wears his short gray hair brushed forward severely and flashes smiles constantly, almost like a tic. Hes a kidder — conversations with him are usually prefaced by a wry observation or an elliptical joke — and hes a talker.

He grew up in Hawaii. His mother was Chinese-Hawaiian and Catholic, and his father was a Jewish labor organizer, who, in trying to settle strikes for agricultural workers, managed "to enrage two sides," Berman said. "The big companies that hated unions, and the political left that thought every compromise forestalled the revolution."

His father, who Berman said was investigated by the House Un-American Activities Committee and labeled a Communist, was actually a "middle-grounder," and it rubbed off on his son.

Berman went to college at the University of California-Berkeley in the 1960s, became involved in the schools storied Free Speech Movement, went on to earn a Masters degree in political theory there and then a law degree in 1967 from Berkeleys law school.

Like his father, he wanted to advance agriculture labor rights and conditions, but ended up moving to Washington, D.C., and working for an assortment of organizations, from a top corporate law firm to the Citizens Advocate Center.

In 1975, he took a job at the American Civil Liberties Unions Center for National Security Studies, where he focused on government surveillance and learned the strange calculus that drives Capitol Hill, a mixture of personality, pace, process and money that requires close observation and in-the-trenches toil to fully comprehend.

In 1986, as the ACLUs legislative director in Washington, "a light went off in my head," he said. He was at that time organizing an ACLU effort to push through Congress something called the Electronic Communications Privacy Act, which gave e-mail privacy protections.

"With e-mail, we began to see the transformation of the computer from this Big Brother processing machine into what it is now: the leading communications device," he said. "There is no constitutional right to data privacy; there is a lot of missing law. I realized we were in for a transformation, a new medium was coming, new laws had to be made, and if you wanted to protect e-mail, you had to come to Washington."

If it had been left to the courts, e-mail could have been stamped with the same protections as the telegraph — "very little," he said.

The ECPA effort also introduced Berman to a policy-making strategy that he has clung to ever since: involve industry. He convinced IBM to join the fight for e-mail privacy protections, not because privacy is some transcendental good and therefore IBM should care, but because strong privacy would be good for business.

Jim Dempsey, CDTs Harvard-trained deputy director, credits Berman with having the "essential insight" to understand that alone, civil liberties dont wield much persuasive heft with lawmakers. But when yoked to other interests, they have a better chance of sneaking their way into law. He calls it a "three-cornered process."

"If its civil liberties versus either government or industry, head-to-head, chances are civil liberties is going to lose," said Dempsey, a national expert on government surveillance law who for nearly 10 years was assistant counsel at the House Judiciary Subcommittee on Civil and Constitutional Rights. "If you have a national security claim or the profitability of the economy at stake, privacy and free expression lose out. But, if you can find alliances, and if you can work to listen to and identify either the governmental interests or the business interests and triangulate that, and figure out who is your greatest threat and who is your potential ally, you can win. You can advance the ball of civil liberties."

Berman continued to hone the triangulation strategy after he left the ACLU in 1991 to become executive director at the new Electronic Frontier Foundation, a motley band of computer whizzes and policy wonks that cut a decidedly Left Coast, cyberlibertarian profile in Washingtons clubby, suit-and-tie policy-making community.

With his Berkeley and activist pedigree, Berman, on the surface, was a perfect fit for EFF. He and his attorneys would protect Netizens civil liberties by injecting a long-overdue shot of California idealism into the hopelessly buggy, Colonial-era political system.

The problem was, Berman concluded, that he and his small staff would be rendered irrelevant if they elected merely to stand on the sidelines and shout.

So EFF grudgingly followed Berman into the dark bowels of the Capitol, the compromised land of whispers, closed-door deals and all-consuming chess-like strategizing.

When Congress began wrestling with wiretapping laws for the digital age, EFFs percolating discomfort with the political process and with Berman bubbled into a boil.

The FBI was pushing the 1994 Communications Assistance for Law Enforcement Act (CALEA), saying it needed a new law because it was losing wiretapping capabilities as the use of advanced communications services ballooned. Its proposal, among other things, was to require that all new telecommunications technologies be certified by the FBI as wiretapping-friendly.

Knowing that the FBI had strong support in Congress, EFF opted against trying to kill CALEA and focused instead on changes that would weaken the FBIs ability to wiretap in cyberspace. Using Bermans triangulation strategy, the organization shepherded industry — which was furious about how expensive and cumbersome CALEA would be to deploy — into a coalition, and soldiered on. Other civil liberties advocates were appalled by the very existence of CALEA and they were sickened by EFFs decision to grant it conditional support. Neither the ACLU nor the Electronic Privacy Information Center would work with EFF on the CALEA case.

"Even if you took the position that all wiretapping is bad, would you say, therefore, I will not work on this devils work to narrow it down so it does the least amount of damage? " Berman asked.

The CALEA bill passed in a landslide — 534-1. The depth of support vindicated Bermans position, he said. But the victory was bittersweet.

The EFF, increasingly uncomfortable with its direction under Berman, ousted him.

Out of that severing in 1994 was born the CDT. The D.C.-based policy staff fled EFF with Berman, and together they put up a shingle and continued working on the same issues. Some of EFFs funding, Berman said, also followed him to CDT, where the "three-cornered process" became the organizations spiritual center.

The organization has made it, in the immortal words of Vice President Dick Cheney, "big time."

The offices fill the entire 11th floor of a downtown D.C. office building just one block from the White House. The décor is black-and-chrome modern with an undercurrent of muted earth-tone warmth. The effect is a diffuse air of sleekness. >>

Here, the corps of top-school attorneys and activists spend their days working on legislative language, holding meetings with corporate executives, talking on the phone with Capitol Hill staffers and lawmakers and the press, plotting grassroots campaign strategies.

The part-advocacy-group, part-lobbying-firm, part-think-tank that is CDT is also very involved with technology itself. It has been instrumental in the development of the P3P, a W3C standard-setting project that will, ideally, let Internet users set their browsers to go only to sites with acceptable privacy policies.

Such "user empowerment" technologies like P3P and GetNetWise, a CDT-inspired industry coalition and network of Web sites that helps parents, for example, navigate the Net safely for their children, have long been important to CDT. The notion of technologically strengthened and protected Netizens was a strategic key to CDTs courtroom opposition to the Communications Decency Act, and it is becoming increasingly central.

In a recent fundraising letter mailed out to potential donors, CDTs promotion of user empowerment is repeatedly championed as an important part of the cyberspace privacy and free-expression debates.

"Its not just legal code that makes a difference, its the standards and technical code too," said Ari Schwartz, an enthusiastic CDT senior policy analyst who performs much of CDTs P3P work. "If we can build privacy and other free-expression, democratic values into the code itself, then we can be certain there will be less need for policy solutions."

Good code, he said, "can help limit governments role while promoting democracy and democratic values."

And with P3P, one of CDTs biggest corporate supporters, Microsoft, is also one of the technologys biggest evangelists. The company is building P3P standards into its next release of its Internet Explorer, and it injects the specter of P3P into its arguments against the need for online privacy legislation.

CDT "played a leadership role" in and "was a driving force" behind the development of P3P, said Microsofts Krumholtz. Berman, he said, has been a "leading voice" on the subject of user empowerment in general.

In addition to the standard-setting work with the W3C and the increasingly important international Net governance work on ICANN that CDT is involved in, it remains deeply steeped in civil liberties issues and legalese. In the recent fundraising letter, CDT touts its involvement with everything from the Childrens Online Protection Commission to its active opposition to some of the FBIs stabs at network surveillance. The letter said CDT plans to remain active in data privacy, communications privacy, free expression on the Internet and Internet governance issues, and trumpets the organizations "large role in educating the public on Internet issues," pointing out that "a recent Lexis-Nexis search showed that CDT was mentioned over a thousand times in the media in 2000."

Another document showed that CDT staffers testified before Congress 12 times in 2000. Meanwhile, staffers are also speaking regularly at symposia, conferences, panel discussions and other forums around the world.

Alan Davidson is an earnest M.I.T-educated software engineer who "fell from grace," as he jokingly put it, by getting a law degree from Yale and switching to legal work. He could make gobs more money in the private sector, but sticks with CDT because, "we all feel very lucky to be able to fight for things we believe in and to actually feel like we are making a difference.

"CDT is a place where we can fight for individual liberty and issues we care about, and where, pound for pound, we have a bigger impact than we would have in a lot of other places," he said.

The members of the CDT crew, Davidson said, have "become the go-to people for a lot of staff on the Hill and policy-makers in town. Part of the goal is to give them our point of view, but also to help them understand what is going on, to understand the Internet."

Outsider Among Advocates

CDT stands alone, however, in the advocacy world. The bulk of the staunch privacy defenders in Washington loathe CDT, although few are willing to go on the record with their critiques.

The rift between CDT and the rest of the clannish privacy activists was brought into high relief in February, when a disparate bunch of advocacy groups joined together into something called The Privacy Coalition. CDT was conspicuously absent from the coalition. The group fashioned a "privacy pledge" and urged federal and state legislators to "sign" the pledge.

Evan Hendricks, the editor and publisher at Privacy Times and one of the engines behind the coalition and the drafting of the pledge, said CDTs omission was no oversight.

"A lot of [the reason to not include CDT] was about the comfort level of some members of the privacy coalition," he said. "When it comes to corporate data, and privacy rights are involved, [CDT] tends to pull their punches. It would be helpful if CDT would play a constructive lobbying role. But when it comes to the private-sector issues, they still need to prove they are up to the task."

The public increasingly is backing tough privacy legislation, he said, and now is the time to push for sweeping action by lawmakers.

"The concern with CDT is they have a real tendency to prefer half-steps to nothing at all," he said. "Were at the point now where modest measures and half-steps will do more harm than good."

When it comes to privacy, he and other advocates said, CDT is hobbled by its corporate shackles.

Berman said that since he takes money from everybody — including many companies, like AT&T and Bell Atlantic, or Microsoft and AOL, that are often "at each others throats" — he isnt compromised by their donations.

The money issue is Bermans critics shillelagh, and the rancor it has spawned clearly upsets him.

Seated recently on a couch in his book-lined corner office, he talked wistfully of finalizing CDTs ascent from seat-of-the-pants advocacy group to venerable Washington institution, a time when the quest for funding would not take so much energy and Berman could name himself chairman of the board, turn over the reins to his "Internet children" — the staff — and retire to his beloved book-stuffed cabin in West Virginia to write his memoirs.

"You can disagree with me, you can call me this and that, and you can say Im wrong on this issue or my strategy stinks, but you cant say Im not a civil libertarian, after this long in the trenches," he said. "If Im not a civil libertarian, then what am I doing?