People would say, "Are you more worried about the companies spying on you or the government spying on you?" And I'm like, "Nobody's offering you that choice."
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I'm Jason Kelley, and this week I'm bringing you an interview I did with the Electronic Frontier Foundation's executive director, Cindy Cohn, who recently announced she would be stepping down from the legendary digital rights nonprofit after decades of service. As part of a live stream for the EFF, I talked to Cindy about her new book called Privacy's Defender, which is a memoir of her work to protect Americans' privacy and fight government surveillance. I read a lot of books about tech, and I really liked Privacy's Defender in part because it weaves Cindy's life story through three incredibly important court cases. Rather than being a dry recounting of three complicated and technical cases, Cindy recounts her strategies in each case, the trials and tribulations she was going through in her personal life during each period, and the stakes of each case.
As a quick backgrounder for people who might not be familiar, the cases in the book are Bernstein versus the Department of Justice, which was decided in 1996 and established code and encryption as protected speech under the First Amendment. That was a lasting decision that became really critical in Apple's lawsuit against the FBI in the aftermath of the San Bernardino shooting, when the FBI wanted Apple to decrypt the shooter's phone. The book also follows EFF's lawsuit against AT&T for building a secret back door in its internet data centers that gave data to the NSA for warrantless surveillance against American citizens.
That was a case that was built in part around testimony and documents shared by Mark Klein, who showed schematics and design documents for secret surveillance rooms in AT&T's offices.
And finally, it follows the alphabet cases, which were lawsuits against the FBI for gag orders related to national security letters, which are secret demands for customer information that came with gag orders against internet companies that prevented them from disclosing the fact that the FBI approached them for information at all. This, as Cindy talks about, really exploded in the aftermath of 9/11 and the Patriot Act. And those cases concerned both Cloudflare and a telecom company called Credo, and those cases went on for many years. My interview with Cindy shows that the fight for privacy happens in fits and spurts, and progress is rarely linear. Without further ado, here's my interview.
At the beginning of this book, in the preface, you note EFF has done much more work than the stories I tell here. We helped ensure that the First and Fourth Amendments apply online, although there's much more work to be done on each. We helped set a high bar for attempts to unmask anonymous speakers in online forums to stop intimidation by litigation. We've consistently supported Section 230, a law that protects the intermediaries that everyone needs in order to speak and share information online. It goes on and on and on, dozens of things that EFF has done over the years. I feel like I could go on about the things that I've talked to you guys about over the years. I'm very curious, how did you decide to focus on the three court cases that you talk about in the book, which are Bernstein versus the Department of Justice, which established code as speech, a very massive case against AT&T wiretapping for the NSA, and then the national security letters cases where a telecom company called Credo fought a gag order? How did you decide which cases to focus on?
I mean, there is another version of this book where I kind of talk about some of our copyright work, some of the work on, you know, coders' rights and other things. And at some point it became clear that the book would be stronger if it had one through line, and privacy is really the through line of all the work. But it also just seemed to me, in looking back, there was a lot of good stories inside each of these sets of stories, and they also really, I think, provided a nice narrative line of the work. And it really all circles around privacy, and it just became the central thing as I started looking back at the stories.
Yeah. So, the book starts with Bernstein versus the Department of Justice, which again established code as speech. That was very early in your career, as I understand it. And this is like, I think of this as a super critical, like bedrock case that came up most obviously in my own work when I was writing about Apple versus the FBI, and, you know, the FBI trying to force Apple to decrypt the phone of a mass shooter. That was like a very unmitigated win that's proven to be extremely enduring. But then you end the book on this Credo National Security Letters case, where you were able to get some concessions, but the outcome was like a lot murkier. It took many years, is very hard fought. And I guess I'm just wondering sort of how do you think about the nature of progress in this space when you're going up against the federal government and usually like the national security apparatus.
Yeah, you know, it was a good clean win in Bernstein, and it's endured. I mean, look, we have a lot more to do to secure the internet, but that win has endured and has allowed encryption to be embedded into so many things that we do. And we were the first to stand up with Apple when they said we're not going to dumb down the security of our devices in the case where the FBI was demanding that they do so. I kind of tell the companies we're like their friend-enemies, right? If they stand with their users, we'll stand with them, and if they oppose their users, we're the first in line against them. And that was a, you know, we're highly critical of Apple sometimes, and that was a time when we got to stand with them. But it's true that the second two sets of cases really are a lot more normal about how these fights go, and especially normal, I have to say, since the 9/11 attacks. There was a switch that happened in this country with those attacks where it became harder and harder to tell the federal, to tell the government, to tell law enforcement no when it wanted a new power or when it wanted to extend our power, and that's especially true in national security, but it also kind of drifted down to federal and even state and local law enforcement. And I think as a society, that has made those cases much harder, it's made Congress more timid, it's made the judges more timid in addressing those situations. So it's created some bigger hurdles for us, but, you know, so instead of having a good clean win that looks like, you know, maybe a TV show where the ragtag team of lawyers and hackers win, it's really more like chipping away at this big fortress. Again, I think that the Patriot Act and the post-9/11 shift in both the culture and the way things work has made it a harder fight.
Yeah, I was a little bit, I guess not surprised, but I didn't quite understand that in some of these cases, you know, you had a very sound legal argument, and then in some cases like the judge seemed to kind of go along with you, and then for reasons unknown, like decided to side with the national security apparatus. I mean, did that leave you wondering about sort of the motivations there, what was maybe going on behind the scenes?
Yeah, absolutely. And in the NSA spying cases, we knew at least that there were secret briefs being filed. Sometimes, I'm not sure we knew the whole full extent of it, but the government would actually tell us not what they said, but that they had said something secretly. In the national security letter cases, we don't really know. I don't know how much that has to happen. I think that we've just seen courts that kind of start off applying the regular rules around the First Amendment or the Fourth Amendment. They just kind of get a little timid when it goes up against the national security infrastructure. And it may not be that there's somebody putting pressure on them as much as the pressure is coming. And, you know, it's a hard thing to do to stand up to the national security folks and say, "You know what? We think you're overblowing this." Or we think the balance between people's rights and, you know, what the, you know, little steps you might gain to be able to investigate crimes, it's just not worth the trade-off in terms of people's rights. And I just think we've, you know, part of this book is kind of a call to courts and Congress members to have a little more backbone because all the rest of us depend on them standing up.
Yeah, so I've seen this fight from newsrooms, like I was a journalist. And I feel like there's a bit of a like symbiotic relationship between journalists and organizations like the EFF where often we are reporting on something that's really contentious or sometimes classified or highly sensitive. And we need to make the decision as a news outlet like when do we feel comfortable running a story? Like is the sourcing sound enough? And in this NSA AT&T case, like you talk about it from the other side. And I've never heard it talked about from the other side before. And I found it to be incredibly interesting because you basically talk about how like knowing that AT&T had given a tap directly into their systems to the NSA, but maybe not having enough evidence or enough people to talk about it in court. And there's then this discussion about, well, maybe a news outlet will write about it first before we file or maybe we should file first. And I was wondering if you could just talk a little bit about that dynamic because honestly, like when a big organization files a lawsuit, that makes it a lot easier for us to report on things because it's like, oh, there's all these documents. There's a complaint. There's maybe evidence. There's maybe, you know, court records. And that makes it a lot easier. But you have some of that going on on your side as well.
Yeah, I think so. And in the NSA cases, it was especially important and more front of mind. And that's because of the way the classification rules work and the way they were being enforced at the time. Traditionally, if journalists publish something, even if it was classified, they were not prosecuted. Now, we're seeing some changes now, but certainly as of the time we filed this, we knew, based on the Pentagon Papers case that Daniel Ellsberg gave to the New York Times and the Washington Post, we knew that once the press published it and it was widely available, we would have much less risk if it turned out those documents were classified. And we didn't know when we first got them whether they were or not. So, we really wanted the press to go first because we thought it would give shelter to the lawsuit and the work that we were doing if we weren't the ones making it public in the first place. And we also thought there was better legal protection for everybody that way. So, it was especially acute. I mean, in general, you know, EFF, we don't want to go first. I mean, we can if we have the information, but like we're not in the news business, right? We don't get credit for scoops. That's not what we're doing. Like we really want to take what the news is doing, what journalists are doing, and turn it into real change in the world. So, I view our job, I tell this to EFF a lot, you know, like we're not in the news business. It's not our job to race to be first to get something up. It is our job to take what the news covers and turn it into real change for the world. But occasionally we have stuff first, and I get that, and we can present it in declarations and evidentiary form, and then you guys follow us. That was an especially weird one, especially because, you know, the government was able to intimidate the news out of covering that story for a very long time before it came out. So, we were especially anxious that we not be out too far ahead of what the public already knew.
Right. We talked yesterday briefly, and you mentioned, you know, you don't aspire to break news, but sometimes you do aspire to be first to file, like first to file a lawsuit. And you weren't first to file a national security letters case necessarily. ACLU, I know, had one as well, but you're very early in that Credo case. And what I noticed is after you filed that, there was like a kind of an avalanche of other lawsuits that were very similar. And that also happened in the AT&T NSA case as well. And I was just wondering if you could talk a little bit about that dynamic, because it seems like if you are maybe the first to court, then other people come out of the woodwork and say, well, this affects me too. I'm also going to file a lawsuit.
Yeah, and that happened to both. And by the way, we started off with Credo, but we added Cloudflare pretty quickly. So, we ended up having two secret clients in the national security letter cases. But yeah, with the case against AT&T in the NSA spying cases, we could kind of anticipate, I mean, I didn't, you know, ultimately there were like 60-some cases filed against every telecommunications carrier you can imagine. We kind of anticipated something like that would happen, and there being first to file was really important because it meant that we could keep control of all the cases. There's a thing called a multi-district litigation process where when there's a bunch of cases filed on the same topic, they'll get consolidated, but somebody has to lead the parade. And being the first one to file and having had a couple rounds in with our judge at this point, at the point of everybody else filing, meant that we were able to keep control of all the cases, and it also meant we were able to get them directed over to Judge Walker in the Northern District of California, which we really wanted because he had shown that he understood the issues in the case and wasn't cowed by the government in the initial ruling. So, that was really important for us. In the National Security Letter cases, you're right, they came later. You know, the ACLU had already done some amazing work, and they'd gotten a great decision, but it didn't go far enough. And so, we were trying to claim the next step on the case, and we started, we had the Internet Archive as a client first, but the government backed down. And then when Credo showed up, we were able to get one where the government was willing to fight us. And it's absolutely true that once we started winning in the National Security Letter cases, Google brought cases, other people brought, other providers brought cases because there were so many National Security Letters being issued and so many companies under this eternal gag that once we kind of cleared the space and we had a judge very skeptical of it, it really did, I think, give some confidence to other people, including Cloudflare, who came to us directly, but other companies to be willing to stand up to this. Now, some companies, to be fair, were fighting some of these things in secret.
And we discovered that later. So, we weren't, we were early in terms of the public conversation, but I think a lot of companies were privately bristling at this, and some were even fighting back. It just was all happening under the surface because of the gag orders.
Right, right. So, I want to take a step back and talk a little bit about the book. And like we are talking about the book, but maybe your process and also like what you decide to include and why. And one thing that I really liked about the book is that there's a lot of your personal life in there. It really does feel like a memoir and you can kind of see how things that happened to you in your life may have affected your work or made you feel more passionate about it. And just to toss a compliment in here, I've read many, many books about technology and I feel like a lot of them are really dry, honestly. And this felt honestly like I was reading a memoir and reading a story. And I guess I'm just curious, why did you decide to include so much about your personal life? Like you talk about, you know, going through a very hard divorce and then having to be on the Colbert show, which was Colbert Report, which is awesome, probably an awesome opportunity, but happening kind of while you were going through this really difficult time.
Yeah, you know, I think there's a couple of reasons. One is I am actually a practitioner, like I did this, and I felt like that a lot of the really amazing work that journalists and academics do around privacy is, you know, only reaches a certain audience. And because I had a different perspective on all of this, I thought I would tell it in a first-person narrative and maybe make some of these ideas a little more accessible to people who aren't already, you know, kind of as obsessed with this stuff as like you and I are. And then once I started talking about it, I thought, well, I needed, I got some good advice that like I should talk about why I care about privacy so much. So I kind of started looking back in my life and pulling out the threads, right, that led me to be somebody who's so passionate about this. And then I think the other thing that I was trying to do is like I've lived my life doing this and some of the work that I've done has really fed into my personal life. That these things, they get intertwined and I felt like by just telling the professional side of it was kind of giving an overly narrow view of what it's like to do this work for the long run. Because at the end of the day, you know, I say it at the very beginning and the end, I'm trying to recruit you. I'm trying to convince people that spending your life doing something that you're passionate about, whether it's tech policy or something else, it's a good thing to do and you can do it and you don't have to be superhuman. You can do this and have a real life and interesting things will happen in your life. And so, I felt like I had to reveal them. I will tell you as a privacy advocate, there's a real tension here, right? I've ended up telling a lot more about my personal life than sometimes I'm comfortable with, you know, but the writing needed it and I think I didn't quite think about it at the time that I was revealing all this stuff to the world. I was just trying to write the best book I could write. So, I don't regret it, but it definitely, I'm definitely had a couple of moments where I'm like, "Wow, I really, I told a lot more about my personal life than I normally do in a professional setting or otherwise." But I...
Yeah, maybe it doesn't come naturally.
It doesn't. And I got some good feedback. I had a lot of help writing this book with editors and supporters. And I really want to call out Rainey Reitman, who used to work at EFF, who was my accountability coach for this. And so, I got some good perspectives from people about how the personal fed the professional in the story and support for kind of doing it that way. And I think it makes a better book even if it makes me a little antsy at times.
Yeah, yeah. Another thing I really liked was that there's a little bit of kind of like play-by-play in terms of how you put these cases together and how you made arguments and your process as a lawyer, which was interesting to me as someone who is not a lawyer but has read lots of court documents. You talk about finding where the fight is, I believe is your terminology. Can you just like explain that a little bit because I found that to be not just useful maybe for someone who wants to fight a court case, but also just someone who's trying to make like a hard decision or like analyze a problem.
Yeah, I took this strategy from a guy named Jim Brosnahan, who's a legendary lawyer in the Bay Area, who actually helped us with Mark Klein back in the day. But yeah, it's actually very analog, right? I wish I had one here. I don't, but I, you know, I take a legal pad and I turn it sideways and I write out all the arguments that the one side has and all the arguments that, you know, you get three briefs in a normal motion. There's an opening brief, an opposition brief, and a reply brief. So, the moving party, which would be us if we're the plaintiffs, write the first set. The opposition, what you get from the government, comes in and then you get a chance to reply and then you do oral argument. And I actually lay them out horizontally against each other and pull out what are we actually saying to each other? What is the core of the arguments? What are the core cases that are cited? And line them up horizontally. So, you can see what are we saying? What are they saying? What do we say in response? And then what do we want to, what are the most important things that we want to focus the court on when we get to oral argument? And I just find it really clarifying and helps kind of cut through some of the bluster and the muster and some of the kind of, you know, things that can happen when people are writing their arguments to the actual core argument. It's a technique that I still use. I use it, you know, when I'm writing things, but also when I'm helping prepare people for oral argument. And I think it just, again, finding where the fight is. You find where people are talking past each other. You find where people are actually addressing the issues. It's just an analytical tool that helps you figure out, you know, where are we actually fighting in these things. And quite often you discover that you're not really fighting at all. You're talking past each other and just even recognizing that can help you figure out how you want to explain to the judge what's going on and what they should do with the situation where people are talking past each other because at the end of the day the person who's reading all these briefs is another human being who's trying to figure out what the right thing to do is. At least a good judge is, and so you want to help them. You want to advocate for your side but you also want to help them by not getting them caught up in little side eddies, really getting them focused on the main things.
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Okay, so let's talk about your reason for writing the book. "I'm here to recruit you" to sort of like get people to join in this fight and to bring up sort of the next generation of privacy defenders and anti-surveillance activists and so on and so forth. I'm curious, like I feel like privacy is having a moment again. I feel like it's one of those things that waxes and wanes and, you know, obviously after the Snowden revelations, like that's sort of when I started being a tech journalist and I was like, "Wow, everyone cares about this." And I kept caring about it and then I felt like it kind of like fell off the map and then more recently we have, you know, companies like Flock, we have ICE surveillance, we have Ring and I feel like privacy is having a moment again, thankfully. And I'm just curious, how's the recruitment going? What is your strategy here besides writing a book? What do you think is going on now with sort of the next generation of people who are fighting this fight that you've been doing for so long?
Yeah, I think, I mean, I think people have been passionate about privacy overall, but the thing that they're scared of has shifted. So, you know, in the '90s we were very focused on the government because the internet was new and we didn't have the surveillance business model yet. Now that we have the surveillance business model, people for a while were very focused on consumer privacy, the privacy vis-a-vis the companies. I mean, I've always felt like it was kind of a false choice. People would say, "Are you more worried about the company spying on you or the government spying on you?" And I'm like, "Nobody's offering you that choice." The government uses companies to do this. It's a fake choice and it puts people at odds with each other when we should all care about privacy in all the ways. And now I think people are starting to really see how the government is marshaling all the information it has about us both directly, you know, like the IRS information going to ICE, and indirectly because the government is the number one purchaser of commercial data broker information. So, they're really coming together and they're coming together in the ways that people can see and, you know, when they're sweeping up your neighbors, they're using commercially available location data to be able to identify where they're going to do the sweeps and we have testimony about that now from a case in Oregon that I think you guys broke the news on. So, I think people are really starting to see the effects of surveillance and that's why it's front of mind again. So, in terms of recruiting, you know, I'm hearing from a lot of people about the book. EFF continues to hear from people, but we're also seeing people show up at their local Board of Supervisors or...
their local HOA or, you know, when states are considering things at much greater numbers than we used to. We still need more. I think that one of the things that the companies and the government have successfully done for a lot of people is convince them that it's futile, that there's nothing they can do and that they should just give up. But we're increasingly seeing people say like that's not okay and especially not okay when they're sweeping in and picking up my neighbors and shooting people who are trying to observe the police. Like, we need to get a handle on this. And so, I think people are more concerned. It's one of those weird things when you're a privacy lawyer. Like, people are really concerned cuz things are really bad. And then when things get better, people get less concerned. So, we're in a moment, but we're not in a moment cuz I'm really happy about it. We're in a moment because it's becoming so clear that lots more people are getting energized. So, I'm hoping that the book comes at a good time to try to encourage people to get involved, but also to think about there's kind of two categories that I'm thinking about and it's people who get involved, you know, they have a day job or they're doing something else and they get involved at night with a local group that is fighting for privacy. But, it's also for people who are thinking about how they want to spend their lives and do their careers. And part of the reason I wrote this as my 30-year journey to fight digital surveillance is to try to encourage people to think about this as something they can do for their whole lives cuz we get better at it when we do it over time. EFF has, you know, a staff of lawyers now who, you know, if you stick around and you have multiple fights in this, you get better. The Justice Department lawyers stick around for a long time. So, we can't just show up once and then leave. We're not going to get better at it if we're not matching them in terms of our experience level. So, that's kind of my ultimate, you know, my ultimate audience is the kind of next generation Cindy Cohn who's like, well, should I go for the firm or should I go for this nonprofit? And to try to at least encourage them to think about, you know, fighting the good fight as a way to spend your career.
Right, right. I do want to talk more about how the threats to privacy have changed over the last 15 years or so. The cases that you focus on in the book all have to do with federal — well, federal surveillance and I guess encryption. But, um, you know, AT&T obviously a commercial company involved there, but I feel like over the last few years, and you just mentioned it, the surveillance capabilities that law enforcement has have filtered down to state and local police in a big way because of the commercial aspect to so much of this. You know, you have local police like buying access to really powerful automated license plate readers to, you know, AI-connected cameras to cell phone location data to social media monitoring tools and things like this. And, you know, some of these things used to only be accessible to the federal government. Whereas, now there's a lot more of them and it's a lot more accessible to the police. But, in some ways I feel like it almost makes pushing back against these a little bit easier because you can push back at a local level or a state level. And I'm curious like sort of how you think about that because it's made the fight like a lot maybe a lot more complicated, but almost like a little bit more accessible in some ways cuz you don't necessarily have to sue the NSA or the Department of Justice.
Yep, that's exactly right. And you know, we've leaned into our municipal work. We're partnering with people in, you know, places all around the country who are trying to stand up against especially license plate readers like Flock. Motorola also does this. People keep thinking about Flock and I think that's great, but it's a whole industry and we need to make sure that we're not just taking down one of them. But yeah, we've leaned into supporting things. We've got a new case against license plate readers in California that we brought under state law in San Jose because California has a privacy part of its constitution. And so, you know, we're trying to be flexible in thinking about what are the right tools for the job, but also where we can have some of these fights. And with, you know, it's really, I mean, I feel a little like Cassandra. We knew that all this national security mass surveillance stuff wasn't going to just stay, you know, the government would say don't worry, we're only using this to fight terrorists and in very narrow situations and it will never be turned on the American people or maybe they might get incidentally impacted by aiming things at terrorists. And you know, that wasn't — we didn't believe that at the time and certainly over time we've seen the same technologies trickle down and be used for a wider, wider range of things. So, this was predictable, but and we tried to stop it, but you know, we're just too small compared to the forces that are trying to do it. We haven't been able to be as effective as I'd like. I'd like us to be 10 times bigger. EFF has 30,000 members. We should have 300,000 members and we should, you know, and not just EFF, there's a whole diaspora, but like the size of what we're up against is big and we're smarter than them, but we also need to be a little bigger I think in order — a lot bigger in order to really be able to drive things in the same way. But yeah, we're seeing this and we're seeing people get really concerned because their neighbors are the ones being swept up. They see this at a level that with some of the national security surveillance, it was pretty — it wasn't visible to as many people.
Another thing that changed that was the Dobbs decision where reproductive justice became something that was very different in different states and suddenly kind of a much wider range of people were seeing the implications of the mass surveillance that we were doing both commercial and law enforcement. And so that kind of awakened a whole other set of people to the dangers of the surveillance state that we've built, but it's pretty bad right now. You know, it's definitely the case that the surveillance business model has won. It is most of the big tech companies and the government is well aware of it and they're getting information from them and directly in ways that really do require us to lean in. You know, I remember that, you know, there's a famous quote from Benjamin Franklin that when the Constitution got passed where a woman asked him, you know, did we go for a republic or a monarchy and he said a republic if you can keep it. And I think we're in the if you can keep it stage in the United States right now and that requires participation.
