"National Security People Are Playing The Long Game" (Cindy Cohn)

The national security people are playing the long game. And the long game for them is that nothing happens anywhere on the globe that they don't have access to collect it all, manage it all. I understand why they have that philosophy, but it's a disaster for the rest of us.

Oh, thank you.

I mean, I think it's got to be the Bernstein case because we freed up encryption. So much of the internet and the security and privacy we have today depends on encryption. It would have been a very different internet without that. Don't get me wrong. We still don't have a secure or private enough internet, but in terms of just the sheer amount of help we were able to give to the world, I think the Bernstein case stands alone.

Oh, that's such a hard decision. I mean, I'm definitely proud of the Bernstein case. I'm also very proud of the work we did against NSA spying because we were able to chip away at a time when it was a lot harder to confront the national security infrastructure, and because we inspired so many people to get involved. I think that was the biggest kind of public effort that we did. I mean, we did lots of little things that aren't in the book that I'm very proud of. One of them was, you know, we defended some people who made a video using This Land Is Made for You and Me, and we ended up getting This Land Is Made for You and Me recognized into the public domain. So, as a, you know, that felt really good as well.

Yep.

Well, I think that this presents a kind of a false choice because we don't have an option to decide which one. In fact, all of the spying that I talk about in the book depends on the government drafting off of private companies. The NSA spying is the telecommunications companies, AT&T, and in fact, we sued AT&T first and then only secondarily sued the NSA. So, and the national security letter cases that I talk about are situations in which the government goes to our service providers and gets information from them and then gags them forever from telling us. So, it was never really a choice. I think that now though, it's a lot clearer how much information about us the government is gathering from private companies, and they're the number one purchaser from data brokers and using it in situations that are very far afield from the kind of narrow scope of national security investigations, but now we're seeing it used in all sorts of investigations. I think I just saw that a license plate reader was used to give a bicyclist a ticket. You know, I mean, it's really become part and parcel of law enforcement's arsenal such that we have to address both, right? And I don't know that we will get to the bottom of the government misuse of things unless we address the corporate collection of all this data. But in either event, we don't have the option or the luxury of choosing one or the other.

Or I don't think we saw surveillance capitalism, but we did, you know, we did warn for a long time that the government having so much data about us could easily be marshaled against us, right? I mean, Frank Church, the Church Commission, and some of the early work, he called it the abyss from which we cannot come back if we didn't stop mass spying, and Snowden called it turnkey totalitarianism. So, that's the Cassandra part. We've been saying for a while all this collection and analysis of data about us in our everyday lives could very easily be turned into something that is marshaled against us by leaders who wanted to do so. And I think we're living in a time when people are really starting to see that come to fruition, you know, very literally, and their neighbors are being picked up because of data about them that the government has collected or bought. So, I think that in that way, I think we did anticipate this moment when government would be willing to really marshal this information against us. And I think if you think it's going to stop with just the categories of people who they're targeting now, you're going to misunderstand how history works, and we're already seeing it being marshaled against protesters, against people who are engaging in their First Amendment right to film the police, and I don't think there's any reason to believe it will stop there.

But having said that, I'm not sure that I personally anticipated the absolute domination that surveillance capitalism would come to make. We called it creepy but legal when Google started placing ads just based on, you know, scanning people's search terms and things like that.

The contextual ads. Like we thought that was creepy but legal, and I still think it is creepy but legal, but it's nothing compared to what came after. And I don't know that I anticipated that it would become the predominant business model online, and some of that is due to the consolidation of the industry, which is also something that I'm not sure I saw. You know, in the '90s and the early 2000s, there were little companies that were coming and eating the big companies' lunch. You know, you might have started off with, you know, AltaVista search and then you used a Yahoo search and Ask Jeeves.

And then, right, there was a rolling that stopped with Google, right? And it didn't stop because there was no better way to search the internet. It stopped because of the consolidation and some business forces, the refusal of the United States to enforce antitrust law in a way that really protected competition and instead falling prey to some other theories. Those are things that kind of happened outside tech that I would say, as a constitutional lawyer or, you know, thinking about the First and Fourth Amendment, I didn't foresee because it really kind of affected our rights but kind of came from this other direction that isn't really where, you know, where we lived. But now has tremendous implications for free speech, for privacy, but it really came out of the business side. And so, I think those are a couple of things that we didn't quite foresee. Of course, we pivoted. EFF has been talking about consumer privacy for a long time. We have definitely got, I've got a whole section of the organization devoted to that and another section devoted to competition. So, we were able to pivot and grow and meet those moments, but if you'd asked 1996 Cindy if that was where we were going to go, I would not have put those on the list.

Yeah, and we're living in a time now where I think that the attacks on privacy are coming from so many different directions that it's easy for people to feel overwhelmed. And I totally get that. On the other hand, I really believe it's foundational. Like not just around consumer issues, but increasingly so as we're seeing price discrimination, right? The amount you pay for something being based on all the other things that the company knows about you from surveillance rather than a fairness or how much the thing is worth or anything like that, but really maximizing out. And I think it's starting to hit people a lot more clearly than it used to, and I think it feels very unfair. But also in the context of government surveillance. So, I think we are in a time where we're seeing some of the impacts of this, and it's again, it feels like it's coming from all directions sometimes. But you know, the other reason I care about this isn't about the consumer side as much. The other reason I care about this a lot is I think privacy is fundamental to democracy, to self-government. Privacy is a way that we have the people who have less power have protection from people who have more power, right? That little zone of privacy is how we can navigate the world in which we might have a government that we want to change. We might have, you know, my colleague Eva Galperin works with domestic violence victims. These are people who need privacy from people in their own home in order to plan their escape for their lives. So, whether it's in your own home or all the way up to I want to be able to vote for who I want to and not have the government know. We know it's why we have a secret ballot in the United States. Privacy is kind of embedded into many, many of the ways that people with less power get protected against people who have more power.

Perfect examples, though.

And you know, Jefferson has a cipher. If you go to Monticello...

I did. It's a physical thing. You can see the little, you know, turn the things of it. And of course, he was in Paris and John Adams was in London and the rest of the founding fathers of the Continental Congress was in the United States. They had to have a way to communicate with each other across distances that wouldn't be read by the British, and they used cryptography. So, you know, whether you're an originalist or somebody who's really modern, like freeing up cryptography, I think makes perfect sense.

So much, right? We all need privacy no matter what we do. And but I also think that one of the things that technical privacy hasn't been as widely spread and understood because it has seemed like it's stuck in this little world, and if you're not technical, you can't engage in it, you can't do with it. And I am trying to break that out a little bit because I don't think we're going to win. I mean, I'm, you know, I'm a strategist in my heart. Like we're not going to win if the only people who understand how important privacy is are people who have other technical skills. So, I think it's really great that you were drawn to it and you feel like you can have a place in trying to protect privacy regardless of, you know, whether you can write an encryption cipher in your spare time, right?

Yeah, oh boy. Barlow and I went round and round about this. I mean, I, you know, we came very close in the end of our lives. So, he's a dear friend, but and I understand why he did it. So, I want to say that, you know, Barlow was trying to project something onto this world in hopes that it would make itself manifest. And what he really wanted was the idea that the digital world could be better than the offline world. It could be a place that was more fair, more just, that would treat people equally regardless of who they were or where they come from or what color their skin was. You know, he really came out of a view that maybe this technology could help make things better. And so, he projected it as if, oh, weary giants of flesh and steel, you have no jurisdiction. I mean, he was a beautiful writer, too. But like the whole point of it was to try to say, old world, hands off, we were building something new and we're trying to build something better. So, that I think is gorgeous, it's beautiful, but it is aspirational.

And the problem that I had with it is I think a lot of people took him, you know, he didn't say, oh, this is my aspiration. He projected it as if it was an absolute truth, and of course it's not. First of all, we have brought most of the problems of the non-digital world into the digital world. But also, this idea that governments would have no say in what was going on online wasn't realistic even when he wrote it because wherever your feet touch the ground, you're subject to the jurisdictions, and those cops and FBI and NSA, they can come get you. The fact that you did it online is not going to mean that you don't face any consequences for what happens in the offline world. And I think he was trying to do something that inspired people, and honestly, he inspired a lot of people. But I think that the realist in me and the lawyer in me had a hard time thinking about it in inspirational terms. And I think it also led a lot of people to think that the digital world was magically going to be better. Like it was inherently going to be better. And I don't think Barlow thought that at all. He founded the EFF, like, you know, you don't found an organization committed to digital civil liberties and hire fighting lawyers like me if you think it's magically going to be better. But I think the way and the posture in which he made the declaration led a lot of people to think both that it was inevitable and that it was already here. I do think Barlow and I might have disagreed about some of it, but I think again, he was a poet trying to inspire people, and I'm a lawyer trying to litigate. And I would say 80% of our disagreement was due to just that difference in where we sit.

I mean, I think this is one where Barlow's living in the world of the real and Snowden is living in the world of the philosophical, right? I mean, I believe that we all have inalienable rights that we are born with, we have these rights, they're part of the deal of being born in the United States. You might have a slightly different set of rights if you're born somewhere else. And I think we all should have the Universal Declaration of Human Rights just by virtue of being born on this earth. So, I do think that they are inherent, and I think that Ed's right to say that the justification for taking them away, the burden should be on the government who's trying to take them away, not on us trying to defend them.

I think what Barlow was saying was the reality is you can't just sit back and expect that to happen. We have to take our rights. We have to defend them. We have to, nobody, you know, that the reality of the lived world is that we're not going to have a First Amendment online unless we stand up and we say we want the First Amendment online. We're not going to have the Fourth Amendment in our, you know, the EFF was started because of some Secret Service raids and cop raids on early bulletin board systems where the government took the position that the Fourth Amendment just didn't apply. And one of our very first cases, called the Steve Jackson Games case, was to establish that indeed the Fourth Amendment did apply. Now, you could say that I think of that as us taking our rights, but it's not like us taking our rights and creating new ones. It was us establishing that this new context doesn't diminish our rights. So, I think Ed's right that they shouldn't have even tried.

Would be nice. Yeah, and I think Barlow's right that like we can't just sit back and assume that the government and society are going to protect our rights. We have to give it a fight.

Yeah, I mean, this is part of why I wanted to write this as a memoir is I did want to include some of the ways that you do this for the long run. And that's both because I think it's fun and important, but also strategic. Like the government attorneys on the other side, they have 30-year careers. Like if we are taking people and they're burning out after two or three years, we're always in, you know, the eternal kindergartner first grade on our side and they're, you know, in junior high, right? Or high school, whatever you want to take the metaphor. So, for me anyway, it is true that having a community of people outside of the work where I do something else and I'm not the leader has been the way I balanced being the leader in kind of some of these long and hard fights. And you know, it happened for me that it was a community of people who I go see music with. And we do a little, we create our own little festival every year. And in that world, I am not the head of it. I'm not the executive director of my friends. If in many ways, I'm, you know, very much a follower and let other people lead in that because putting that down too. I just think that when you're fighting and you're fighting for your rights and you're in these long battles, you've got to be able to take off your armor sometimes. You've got to be able to show up without that. And this is the space where I'm able to do that, and it really does nurture me. I, you know, you put down your armor, you go over here, you, you know, listen to some music for a while, dance with your friends, and then you can come back and put the armor on and you're ready for the next thing. And I think finding that balance, and you know, what works for me won't work for other people, but I think that finding that balance for folks is really, really important if you want to keep doing this for the long run. My husband has also been doing this kind of work for a very long time. And you know, he builds like blinky art.