San Francisco—The Electronic Frontier Foundation (EFF) today joined a group of 17 leading U.S.-based Internet freedom organizations in telling a federal appeals court that Trump administration appointee Michael Pack has no legal authority to purge leadership at the Open Technology Fund (OTF), a private, independent nonprofit that helps hundreds of millions of people across the globe speak out online and avoid censorship and surveillance by repressive regimes.
EFF, Wikimedia, Human Rights Watch, Mozilla, the Tor Project, and a dozen more groups urged the U.S. Court of Appeals for the D.C Circuit in a filing to rule that Pack violated the First Amendment right of association and assembly and U.S. law —which both ensure that OTF is independent and separate from the government—when he ousted the fund’s president and bipartisan board and replaced them with political appointees. Government-funded OTF filed a lawsuit against Pack last month to stop the takeover.
OTF projects have provided digital tools used by more than 2 billion ordinary citizens, protestors, journalists, and human rights activists in places ranging from Hong Kong, China, to Iran, Venezuela, and Russia to evade government censors and cyberattacks. OTF grants have also supported EFF’s technical security tools like Certbot, the development of the Tor network, the technology underlying the Signal secure messaging app, and much more.
Activists work with OTF and put their trust in the technologies OTF provides because the fund is both perceived to be, and actually has been, independent and free from U.S. government influence, EFF told the court. Government claims that Pack—the newly-installed head of an agency that oversees and financially supports the fund—is authorized to take over OTF undermines Congress’ explicit declarations that OTF is not a federal entity and sets a dangerous precedent for private organizations receiving government grants.
“In our democracy, the state can’t just decide to take control of a private organization, kick out the top officials, and install its own hand-picked administrator, even if it does provide some funding and support for the work of the organization” said EFF Executive Director Cindy Cohn. “At risk is not just the independence of a single small nonprofit that receives U.S. government funding. At risk here is years of work facilitating the technical and educational underpinnings of freedom of speech and assembly, a free press, democracy, and digital security in places where oppressive regimes seek to undermine these and other basic rights. Snatching OTFs independence also puts at risk LGBTQ and domestic violence victims worldwide, along with activists and journalists, who need basic security and safety in their communications. This work requires building trust, and ensuring that those who receive support are not targeted as spies or pawns by often hostile foreign dictatorships.”
The good news is that a panel of three circuit court justices this week issued an order preventing Pack from ousting and replacing OTF’s leadership. “The justices correctly recognized that his actions have already put OTF in jeopardy,” said Cohn. “OTF can only do the important work of combating online censorship around the world if it is regarded as independent and not as a mouthpiece ‘for some partisan agenda,’ as the court put it.” The order will stay in place while OTFs appeals a lower court ruling siding with the government.
“We’re proud to be fighting alongside OTF, whose work protecting Internet freedom and free speech is so vital right now,” said Cohn. “We urge the appeals court to put an end to the government’s blatant attempt to take control of a private, technical support organization relied upon by those seeking freedom around the world.”