Bonus Episode: Privacy’s Defender  🔗 **Source:** [Bonus Episode: Privacy’s Defender](https://share.snipd.com/episode/c3af58a1-1deb-44b0-80aa-a22027ddfa0d) ## Highlights - **State And Private Surveillance Are One Problem** - Cindy Cohn emphasized there is no real choice between state and private surveillance because governments routinely obtain data from companies and buy from data brokers. - The Trump administration simply made visible what had long been happening: private data fed state power for enforcement like ICE and deportation. Transcript: Cindy Cohn I mean, it's always been the case, and I'm happy to, I'll go back and talk about Bernstein because that is a little different, but certainly the NSA surveillance, the NSA didn't come To you guys, didn't come to people directly in order to get access to everybody's information. They went to the phone companies and they went to the internet companies. It's always been the case that if you needed to do mass surveillance, you went to the companies. I think what we're seeing now, I feel a little like Cassandra sometimes, right? That we've been seeing things coming that now everybody's able to see, which is the government is really able to weaponize the information that it has about us. And they are the number one purchaser from data brokers as well. So they're able to take both the information that they've collected, say, what you've given to the IRS, and hand it to ICE. So inside the government, handing information around, but also purchasing from the data broker world. So now they purchase from them. It used to be that they'd hand them mass subpoenas, but either way, the government has always been hungry for the information that private companies gather about it. So I don't think there ever was a big difference. People used to ask me, you know, you're more worried about the big tech companies or the government. And I would be like, you do not understand the problem if you think we have this choice, because we don't. ([Time 0:15:50](https://share.snipd.com/snip/5e9fe6fe-3ea4-4524-8786-e653ec4b65c7)) - **How Bernstein Freed Modern Encryption** - Cindy Cohn described taking the Bernstein case to free encryption from government control under a First Amendment prior restraint theory. - A ragtag team of lawyers and hackers won in district court and the Ninth Circuit, leading the government to reduce encryption controls and enabling modern tools like Signal and Let's Encrypt. Transcript: Cindy Cohn Sure. So the Bernstein case is how I got dragged into all of this. And, you know, I moved to San Francisco. I started meeting a bunch of people. I mean, literally, they showed up at a party in my house. A bunch of people who were on the Internet. And this is, you know, 1990. This is before the World Wide Web. And so these were, were people, some of you are of this era, you know, typing in green letters on a black screen, but they were involved in the internet before there was a worldwide web And, and enjoying, you know, this idea of instantaneous communication with people all around the world. And, you know, at that time, you know, I remember counting my pennies so I could figure out when I lived in London, how long I could talk to my mom for before it got bad, right? Before I couldn't afford it anymore. Having that erased was revolutionary at a level that I think it's hard for people to understand right now, but they were doing it and they were really living online. And I thought it was really cool. And then one day, one of those guys, a guy named John Gilmore, who's one of the founders of EFF, he called me up and he said, so we've got this guy, he's a math PhD student, and he wants to publish A computer program on the internet. And if he does, the government says he'll go to jail as an arms dealer. And I said, well, what does it do? Does it blow things up? And he said, no, it keeps things secret. And I said, well, that sounds like a first amendment problem to me. And he said, me too. Will you take the case? And I was a baby lawyer at this time. I didn't know what I was doing, but I went to my little law firm and I said, I think this internet thing's going to be big understatement of the year. And they let me take the case pro bono. And we challenged the government's restrictions on this technology, which is called encryption, which turns out to be very central for both privacy and security online. We challenged the government under a First Amendment theory. For the legal geeks, it's the prior restraint part because it was a licensing scheme. And lo and behold, we won with this kind of ragtag team of lawyers and a lot of crazy hackers who showed up at the hearing and talked in public and organized. And people were putting encryption on t-shirts. And I think one guy actually got a tattoo and kind of just demonstrating that like computer programs and computer code was a way of communicating to other people. And it had to be the case that this was protected by the first amendment. And, you know, this is one of the things that I, you know, like about courts is that, you know, we were nobodies. But yet the Judge Marilyn Hall Patel, not too far from here in federal district court, she read our briefs and she said, lo and behold, these people are right. And we won against the national security infrastructure of the United States. And so it's because of that case and a lot of lobbying and a lot of other people, I got to stand in the front in front of the judges, but I was by no means alone in this. And my friend Brian Bellendorf back there, he wrote a declaration for us back in the day. And we were able to succeed in the district court, succeed in the Ninth Circuit, and ultimately the government backed down and reduced the controls on the encryption. And we don't have enough security on the internet right now, but a huge chunk of the security we do have is because we were able to free up encryption. And if you use Signal, you use encryption. ([Time 0:18:30](https://share.snipd.com/snip/a6613069-0e8a-4dbb-81c4-c782ecf06769)) - **Why Code Is Protected Speech** - Cindy Cohn reframed code as speech: computer code primarily communicates ideas between people and so merits First Amendment protection. - She credits conversations with MIT's Hal Abelson and PhD students who published code to explain why code is protected speech. Transcript: Cindy Cohn That's hard, because it really is very context dependent. I mean, I will say that the code to speech argument is one of the things that came to me that we then helped develop out and contextualize. You know, it came from really listening to people who are on the Internet, especially people who are doing encryption code, but people more generally. We, you know, we had, you know, Hal Abelson, who is a very storied professor at MIT, taught the intro to computer science class there. And Hal, also a very patient man, sat and talked with me about like why code, he said, code is primarily for people to speak to each other. It's only secondarily for computers, right? Like this frame was how people were working on the internet and the development of the science. And, you know, people think about the First Amendment, about political speech or about art, but the development of science is one of the core pieces of the First Amendment. It's one of the reasons why freedom of expression is really, really important. And so it just became clear to me in talking to all of these people what they were doing and how it fit into the frame of the law. And so that's the story that we put together. And it started with Dan, right? He was a computer science PhD student who wanted to publish his ideas on the internet so other people could look at them, think about them, talk about them and comment on them. I mean, that's just what the First Amendment is. ([Time 0:25:30](https://share.snipd.com/snip/c5234044-d8af-4842-ad9d-47a92452d9df)) - **Internet As A Lifeline For Those Who Don't Fit In** - Cindy recounted how the internet served as a refuge for people who didn't fit their hometowns, calling San Francisco an "Island of Misfit Toys." - She described kids who said online communities literally saved their lives, underscoring why access matters. Transcript: Cindy Cohn It's one of the reasons I'm going to branch to now. It's one of the reasons why we think age gating and a lot of the things that are getting passed right now, which are going to act as barriers for kids who don't fit in having access to the Digital world, because you're going to be subject to whether your parents think you should or not. And that's not always the people who are supporting you. Not all the kids have the parents who are supportive. And so many kids, we did a little informal, completely unscientific survey at EFF of kids asking them how important the internet was to them. And the stories were heart-wrenching. Like I wouldn't be alive today if it weren't for my online community. Like my family doesn't get me. I grew up in a religion that doesn't get me and it's the online community that saved me. And so part of why we're so passionate about a lot of the things that are being done right now to try to gate the internet is because we worry about that next generation of kids and whether They're going to be able to have access to it. So yeah, I think the internet was the home of the weird in some really good ways. ([Time 0:36:16](https://share.snipd.com/snip/207e5dfb-beef-4253-8c66-fa2ebb3f747b)) - **Fight Age Verification Laws By Targeting Legislators** - Oppose overbroad age verification laws like California's AB1043 by contacting legislators and demanding the bill be killed rather than merely amended. - Highlight the law's harms to open source, OS-level requirements, and impractical enforcement across virtual machines. Transcript: Cindy Cohn My husband's behind the scenes. Cory Doctorow Cindy and her husband, Patrick, have been going out and ever in tune for this law because it's very bad. And Patrick is very worried. And Cindy is worried in a different way and so perhaps cindy could uh air some family dirty laundry you did this anyway um camera that does not admit of him holding a phone at this time. Cindy Cohn Okay. But Corey is his defense attorney. Um, so, uh, California has signed a very bad age verification law and, um, it is, uh, I mean, the governor says it's going to be amended. I don't know, but I think we really do need to stand up for it. It's not only bad because it's a bad age verification law, but it reaches all the way into the operating system, which means it's a pretty big threat to the open source community because It requires anybody who is building any tool to make sure that it can do age verification and gets in the way of the open source ethos, which is when you get it, you can rewrite it, you can Do whatever you want. And so there is a big worry that open source is going to, that some of the big open source packages and other things are not going to be available in California. There's been some talk about it. It's also in Colorado, I think Texas, and I believe Brazil. Anyway, this is one of the ways in which age verification, the promise of age verification is spreading in ways that is really problematic and really represents not understanding Some of the other values that are getting washed aside. It's not going to work either. Honestly, I, you know, I'll make a bet with you in three years, if your kids are going to be able to go online and get what they want. So it's a, it's a, you know, there are some very deep and horrible stories that have led for people to want to do something to protect kids online. I have all the sympathy for the, in the world for that. But the answers that they're being sold are not going to do it and are really problematic for a lot of other things. So, you know, we're on it. I mean, you know, part of our problem is we don't like the whole law. So the part about open source, we care about a lot, but like, I'm not all that interested in fighting for the carve out as much as killing the whole thing. But if we, you know, but we do need at least the carve out for open source. ([Time 0:44:35](https://share.snipd.com/snip/c9b3e744-f6ce-4449-af55-7d7d4ea41348)) - **Act Locally And Show Up To Influence Lawmakers** - Engage with policymakers: contact representatives, request meetings, or call offices rather than relying only on form emails. - Local and state advocacy moves fastest; showing up in person or organized calls beats single automated clicks. Transcript: Cindy Cohn I think it does. And look, there's a hierarchy, right? If you show up and say, I want to talk to, get on their audio, actually meet with them, not show up unannounced, actually make an appointment and say, I want to talk to you about this. That's better than if you call. If you call, it's better than if you send an email. If you send an email and you write your own message, it's better than if you just kind of click. But all of it's better than doing nothing. And they, yeah, they do, you know, the most that some offices might do is just count how many people wrote. But even that, you know, when we were fighting SOPA PIPA back in the day, which was a set of censorship laws on the federal level, like we melted down the switchboard of the, of the members Of Congress and we flipped that topic. So one person, it's one of those scale things, right? One person all by themselves, not that important. Get all your friends to do it too and get some real numbers. And honestly, especially state, local, there's a lot of people showing up at community meetings about like flock cameras and things like that. The closer the government is, the more local it is, the fewer people you need to show up to have a difference, right? So they do matter. I wish they mattered more, but it's not nothing because if nobody shows up, they just do what the lobbyists ask them to do. ([Time 0:49:25](https://share.snipd.com/snip/20da77eb-0939-4049-9e45-41d7645ba73e)) - **Court Doctrines Are Fixable Through Litigation** - Cindy Cohn said several bad legal doctrines (third-party doctrine, border-search exceptions, machine-only review) are court-made and reversible. - Recent Supreme Court decisions on phone-location data show progress chipping away at the third-party doctrine. Transcript: Cindy Cohn Mean, it's a mix. I think we're making, so the third party doctrine is a doctrine actually that the courts created in the 70s with the idea that when you give information to a third party, you lose your Constitutional protection over that. We're making inroads. We've had a couple of good Supreme Court decisions, one about tracking you through your phone and phone location data. And another one where the third party doctrine should have meant that you didn't have any constitutional rights and the Supreme Court magically said that you did. So that was good. They haven't yet overruled it, but we've been chipping away at it. It's smaller than it used to be. And we're going to continue to do that. Um, there's a, there's a case in front of the Supreme court now. I don't know if it's going to turn third party doctrine, but it's about geolocation. So this is where they show up at Google and they give them a subpoena and they ask for all the people, geofence warrants. Sorry. Thank you. He's been correcting me for a long time. Geofence warrants and where they show up and they ask Google for everybody who's in a location rather than having to identify who their targets are. That's up in front of the Supreme Court in a case called Chhatri right now. We'll see which way that goes, but that may end up taking another stab at some of these doctrines. So we're working on them. I think that whether foreigners have rights or not is something that we fought in a bunch of border search cases, and we have not succeeded yet on those. And I'm not sure under this administration, things are going to move too much, but maybe. And the other one is this idea that they can collect everything. And then as long as a computer looks at it rather than a human, it doesn't count. We haven't been able to get at that yet. So we're going to keep at it. These are all three really problematic doctrines, none of which, you know, Moses came down from a mountain with it on a set of stone tablets. So they're all things we can fix. But there are three things that continue in our sights. I mean, one of the things about the book is that we don't win all the cases in the book. We won the Bernstein case. That was really fun. It has a really lovely narrative of it. And the government gave up. And there's a nice scene where I get to go to Washington, D.C. And negotiate the terms of surrender. In the NSA spying cases, in the NSL cases, it's really more that we chip away. We still have a lot of work to do on both of those. And we've chipped away a lot. The NSA spying does not look like it looked when Mark Klein showed up in our office. Two of the three programs have been dramatically changed. Actually, all three of them have been changed a lot that we sued over. But we still have a lot of ground to cover. And all three of those doctrines are in our sights. ([Time 0:55:02](https://share.snipd.com/snip/9e2329f3-9a08-43fa-8359-2a1ca90a3850)) - **Get Hands On Through Internships And Pro Bono** - If you want a career in impact litigation, volunteer, pursue EFF internships/fellowships, or do pro bono work through your firm. - Many new civil liberties groups now work on digital issues, so join organizations working with frontline communities. Transcript: Cindy Cohn Well, you know, EFF has an internship program and we have some fellowships that we often offer to young lawyers. So definitely find a way through your firm. If you're at a firm, it sounded like you might already be launched at a place to get involved with pro bono work and and doing, you know, kind of partnering with us. And, you know, look, when when I started, EFF was the first and only digital rights organization. Now we have a diaspora of organizations that are doing all sorts of amazing work. So we're still small in the number of people that we can take on and hire. But it's a huge community now. Well, huge. It's still too small compared to the fights that we're up against, but find ways to volunteer and help because we could definitely use it. And if not us, the ACLU has an amazing speech and technology group. There's actually a bunch of justice groups now that are doing a lot of litigation in this area, groups that work much more closely in some ways with kind of frontline communities. And they have digital issues now too. ([Time 1:01:58](https://share.snipd.com/snip/13280222-0a61-4828-95c3-0ed12b0e7715)) - **Bake Rights Into Infrastructure For Durability** - Durable change happens when technology or norms are baked into everyday systems people rely on, making rollback politically difficult. - Encryption survived initial attacks because it became integral to banks, messaging, and web security like Let's Encrypt. Transcript: Cindy Cohn I think that if you can make a change that becomes the way people think the world ought to be and what they expect it to be, it becomes much more durable. And I mean that while we still are fighting with encryption and we still see people taking stabs at it, it's kind of unthinkable now that encryption would just be outlawed or require A license at the level that it did when we started in the 90s. And that's because A, we were right. And people like John were foreseeking about how important it is. But it's also because we baked it into all the things in such a level that it just wouldn't, I think it would be really hard. So I, you know, I'm not normally a tech determinist, but I think that if you can build stuff in that everybody relies on and things are built on top of, it becomes hard to undo it. ([Time 1:03:52](https://share.snipd.com/snip/0886ecbf-49bc-4971-8815-a838f2b767ae))