You're listening to an archive edition of River to River. I'm Ben Kieffer. There are a handful of lawyers in American history whose cases you and I benefit from every day without knowing their names. Cindy Cohn may be one of them. She grew up in Central Iowa, moved to San Francisco, fell in with a crowd of early internet hackers, and ended up arguing successfully that computer code is protected speech under the First Amendment. That 1996 ruling made strong encryption legal to publish, which is why your phone, your bank, and an app like Signal can protect your information today. And that was just the beginning. Over the next 30 years, Cohn became the leading legal voice of the Electronic Frontier Foundation. EFF is a nonprofit that fights for your digital rights, and Cindy Cohn helped grow EFF from a scrappy group of hackers and lawyers into an organization of more than 120 people.
Now, she's stepping down as its executive director, and she's written a memoir that is part legal history, part personal story, and part rallying cry. The book is Privacy's Defender: My 30-Year Fight Against Digital Surveillance. I asked Cindy to start our conversation by reading from the introduction.
Cypherpunk Dress-Up Day. As I rounded the corner from the elevator on the 19th floor of the federal building in San Francisco, I could see that the crew gathered in front of Judge Marilyn Hall Patel's courtroom was definitely not your normal courthouse fare. Standing and even sitting on the majestic marble floors were well over 30 people. Mostly pale white men in their 30s with longish stringy hair. They were uniformly scruffy and awkwardly dressed in suits and ties. They all seemed to be in outfits that their mothers had picked out for them for a family wedding. Or maybe I was projecting. I was 32 years old, worried about my hair, and wore a suit that my mother picked out for me from the Denver department store where she worked. They may have been a motley bunch, but they warmed my heart. They were there to show support for me as I argued a case called Bernstein versus Department of Justice.
It may not have looked like it, but it was obvious to me and that crew gathered on a cool San Francisco morning in September 1996 that what happened in that courtroom would be crucial to the future of the internet. How Judge Patel ruled would play a major role in determining whether people would have privacy online. I must have seemed nervous because my co-counsel, Jim Wheaton, looked over at me. He touched my elbow and said quietly, "You're in your mother's arms." With that, I pulled open the heavy wooden doors and walked into the courtroom.
Cindy Cohn, an Iowa native, from reading from her new memoir, Privacy's Defender, My 30-Year Fight Against Digital Surveillance. Cindy Cohn, welcome to our program.
That's delightful, that first part of your book, read the first page of your introduction. Let's talk a little bit about your origins and we'll get up to that point as well, one of your early court cases. The book opening there in a San Francisco courtroom, but you trace your thinking about privacy back to central Iowa, growing up in Newton. Then you went to the University of Iowa. Talk about, first of all, growing up here in Iowa as an adopted child in a Jewish family in a mostly Christian community and how that shaped what privacy meant to you before you even, I suppose, thought it was a legal concept.
You grow up in a small town and everybody kind of knows who you are. You know, there's good things for that and and and not so good things. I mean, the good thing is, you know, growing up in Newton, I could walk into any store in the town square and say, "Please charge that to my dad." And it would happen because everybody knew who my dad was and it was easy to to to make those things happen. We didn't really lock our doors very much. I mean, this is in the you know, late '60s, early '70s uh time frame, but you know, and I had my bicycle and I could have the whole town. But the downside of that is that everybody knows who you are. And in my family, you know, my mother had some mental illness. Um we were the only you know, there were a few Jewish families in town, but we were among the only ones. And so we were we were different and I kind of you know, always felt like you know, that was something that was very obvious. And then my my parents got a divorce in the uh you know, when I was about 12 or 14 years old and that was kind of a you know, that was big news uh in the little town in a way that felt pretty uncomfortable for me. And so I think that I started recognizing that privacy is kind of one of the ways that you can protect yourself. Um you can protect yourself from uh you know, community judgments, from being the subject of gossip, but also you know, in ways as I I got older that I saw were you know, important for things like democracy and being able to have self-government and and basically being able to exist as people who are a little different than the normal folks uh in especially in a very small place.
Cindy, you write about a a high school incident uh where you were required to perform religious music and this is at a church Easter service. And and this is in a public school. A lawyer named Mr. Lewin intervened on your behalf. Tell us about that story.
I've changed folks' names, so that's not Mr. Lewin's regular name real name, but um yeah, this was my best friend's father, and I was a singer. I was a soprano in the in the choir, and and we sang a lot of religious music. You know, that's okay in small doses. I don't think there's anything wrong with that, but it it started feeling like that was all we were doing, and it really it reached this climax where after having done the Christmas concert, which was all Christian music, um and there wasn't really an effort to try to mix in Jewish music by my my high school choir teacher. Younger when I was younger some some teachers had done that, but not by the time I got to high school. And then, you know, we were presented with the Easter choir that we were going to do at a local church, and I felt uncomfortable with that. I felt kind of like a fraud. I'm singing this religious music in a church on Easter Sunday, and and so I asked Mr. Lewin what he thought about it, and he said, "Well, you know, that they can't they can't make you do that. That's that's not okay. This is a public school, and they can't make you go to a church and sing." And he stood up for me. He went, and I you know, I don't actually know what happened, but I know that I was excused from that performance without it having an impact on my grade, and I just experienced this rush of feeling about somebody actually standing up for me uh when when, you know, there was a kind of policy or an approach to things that that just didn't feel right for me, and um I it's one of the moments that cemented for me that that's kind of who I want to be for other people. I want to be somebody who stands up for people who may not fit in exactly, but still have rights, um and still should have them respected.
Right, and not just anyone standing up for you, but someone with legal knowledge. That was powerful because it suddenly made the impossible possible for you, right? It sounds like it.
Absolutely. And you know, I had wanted to be a lawyer before then, but you know, kind of in a in a kids way. I love Mr. Lewin and he used to take us water skiing in the summer and I thought, well, that's a great job cuz you know, my father was a traveling salesman and he wasn't around to take us water skiing. So, I thought that that was a great job and then of course as I got older and Mr. Lewin stood up for me and used kind of the power of legal argument um uh on my behalf, that that became something that really cemented what I wanted to do.
You said you wanted to be, you know, law interested you, but you were an English major before you became a lawyer going to the University of Iowa. How did those two things connect? How did you evolve from English to law? A love of language and storytelling is I guess what they have in common, isn't it?
Absolutely and the ability to use language in ways. Yeah, I mean, I think, you know, in my heart I would still love to be a novelist one day. I loved reading when I was a kid. I kind of felt like when I got to the University of Iowa and I realized that you could be an English major and get a degree in reading. I kind of felt like I was getting away from, you know, with something cuz, you know, that was something I did anyway. But, you know, it's you know, University of Iowa was just an amazing place if you care about words and books and letters and you know, with the writers workshop, but also the whole English department is just was so rich. I really I really loved it, but I think I came to a decision after a couple of creative writing classes that that I didn't I didn't know that I had the goods to be, you know, to go right into being a writer and so, I also wanted to stand up for justice and do what was right and so law seemed the obvious next choice for me. I also, in undergrad, started taking a couple of classes at the law school in international human rights law from a a professor there who's now passed away named Burns Weston. Um and I I was, you know, I was equally intrigued by both options and ultimately law seemed like the one that was calling to me more and also was the one where, you know, I I would, you know, my father would be a little less worried about me being able to pay the bills.
Wow, we have that in common. I took two classes from Burns Weston myself and he shaped my, well, my desire to go to other places in the world. So, that's interesting. We overlap there, Cindy.
He was an amazing guy, right? I mean,
really he was and I was just an undergrad and I went to go see him um because somebody recommended I talk to him and he just he just took me in. He let me audit his class. He, you know, he was just He really was an inspiration and I I know that that his legacy continues on there in Iowa City.
Let's jump ahead a little bit in your your life. You arrived in San Francisco, I believe, in the early 1990s. Uh and you describe in your book you found yourself at a housewarming party full of hackers. What was that moment like? What was that world like and what about that community drew you in even though you weren't sort of a a technology geek at this point, I guess, right?
No, I was not. I just thought what they were doing was fascinating, right? It's hard to remember because this is the 1990s. It's before the World Wide Web. Um I had just come back from Switzerland where, you know, I would count the minutes on the phone to be able to talk to my parents before it got way too expensive. And these people were coordinating, communicating, working together over vast distances using this internet, using this network, and able to, you know, have these ongoing conversations with people regardless of whether they were nearby each other. And they were already starting to think about what the world would look like when the everybody got access to this technology. I just thought it was fascinating. They were interesting people. They were also kind of misfits, you know, and and again, I've always been drawn I've always felt like a misfit. I've always felt a little drawn to them. Um so having met this kind of community of misfits and and learning what they were up to was it was just fascinating. Of course, I started dating one of them and another one of them as it turned out, John Gilmore was founding the EFF right about that time. It was really a time of great
excitement and change in the kind of technical world and I just happened to meet them at that moment.
Back with more of my conversation with Cindy Cohn after a short break. I'm Ben Kieffer. It's River to River from IPR News.
You're listening to an archive edition of River to River. I'm Ben Kieffer. Today we're listening to my recent conversation with Cindy Cohn. Cohn grew up in the central Iowa community of Newton in a Jewish family in a mostly Christian town. She studied English as an undergraduate at the University of Iowa, then earned her law degree and began her career at a small firm in California. She first became involved with the nonprofit Electronic Frontier Foundation EFF in 1993. She joined EFF full-time as legal director and general counsel in 2000 and has served as its executive director since 2015. She announced that she will step down from that position by mid-2026. And she's written a memoir that is part legal history, part personal story, and part rallying cry. The book is Privacy's Defender, My 30-Year Fight Against Digital Surveillance. At this point in our conversation, we were talking about what it was like when email was new in the early 1990s.
Yeah, and it's really interesting now even with decades past, we have to kind of recall what it was like just to have I was in Germany in the early 1990s when you were in San Francisco and I had I remember distinctly getting my first email address. It was a Compuserve. I don't know where that company went and it was it was literally just a number, I think, that was my address, but I remember typing in something and then an answer from the other side of the world instantaneously. It's hard to imagine now with all the things that we have, that was really incredible, wasn't it?
Yeah, it was very magical and I felt like, you know, there was a an opportunity to use this technology to try to help make, you know, help make people more empowered and give people a bigger voice in their lives, to give people I can I just come out of human rights work, kind of give, you know, where you struggled to get information out of repressive governments and people would try to sneak stuff out to get information out to the rest of the world about what was going on. And so I immediately started thinking about, well, what if everybody had this kind of technology? What would that mean for the the the people who I'd been trying to help when I was in Geneva. And I think that, you know, we we found a lot of common cause again. I, you know, we didn't agree on everything, but we found a lot of common cause in this this thinking about what were the possibilities of this new technology.
I want to talk in a moment about some of the groundbreaking cases that you were involved with that um you argued here. But but but first I think we have to lay a bit of a foundation and go back to the title of your memoir, Privacy's Defender. You describe privacy not as something you want when you have something to hide, but as a check on power. Explain that framing because I think a lot of people listening, and I certainly hear it that, you know, I I think I've said it before myself, I have nothing to hide. Uh why should I we worried about privacy?
Yeah, I mean, I think that's a common feeling and and so yeah, let me start with what I think privacy is cuz it's a little different than how some people think about it. Some people think about privacy is like the Harry Potter cloak of invisibility that you throw over your head when you're about to do something you don't want people to know about. Um that's that's true. Privacy can give you that, but to me that's not really why it's important. It's important because privacy gives people with less power some protection against people who have more power. And and I think of this in in small ways and large ways. In small ways, for instance, my colleague here at EFF, Eva Galperin, works with domestic violence victims who find that their abusers are putting spyware on their devices in order to maintain control over them, uh find out what they're doing, make sure they're not planning to try to escape. Those kind that kind of um very direct and scary spying by abusers. And and and these people need privacy in order literally to save their lives sometimes and to plan to get out from under the thumbs of people who have more power than them and are using surveillance to try to keep them under control. Um and then you can go all the way up to governments. You know, we have a secret ballot in the United States so that nobody can force you to vote for the people that they they want you to force for. And that you know, that's a historical problem. Sometimes it's somebody's boss, sometimes it's it's somebody in their household, sometimes it might be the government itself um that wants to stay in power by forcing, you know, them themselves to win the election even when that's not what people would choose on their own. And it comes up in social change. You know, we've we've lived through a lot of social change in my lifetime. You know, all the public campaigns uh for social change kind of had to start with a private one and and and you know, I remember uh a time when, you know, people would talk about maybe rights people, gay rights, and they had to be quiet about that because it was dangerous to be talking in that way. And and before we had the public parts of those campaign for gay rights, there had to be private conversations. And I think if we want to continue to have the ability to take control of our government, to change our culture and our our social ways, we have to have private spaces for people to talk to each other, to associate, to gather together to try to make change. And And that's what privacy That's the zone that privacy protects. And I think it's worth standing up and protecting, you know. I think it's a pretty It used to be pretty easy for most people to say, "Well, if I have nothing to hide, I have nothing to fear." I think we're living in a time where it's becoming more clear that the people who are being targeted for repression is moving fast, right? It didn't, you know, before the Dobbs decision, people who weren't seeking reproductive help didn't think that they were the targets of surveillance. But since the Dobbs decision overturned Roe v. Wade, there's an increasing number of people who are finding that the lack of privacy in their digital tools and their and in their lives um can be quite dangerous for them. Um you know, that there's a mother and a daughter in Nebraska, you know, just to the west of of Iowa where the mother went to jail for talking with her daughter over Facebook Messenger about uh an abortion uh that the daughter was seeking and you know, that's not something that I think that people would have thought would be risky to do before the Dobbs decision really changed uh the tone and we're seeing this with some of the you know, the protests against ICE and the government now where we're seeing government agents start to try to track, you know, who's on the government side and who's not on the government side and you know, claiming they're going to make domestic terrorism databases for people who are exercising their First Amendment rights to um observe uh law enforcement. Um you know, so I I think that I think that story might not be one that many people can keep for the long run even if a lot of people told themselves that in the short run.
Right. And let let me jump on another I'm sure common reaction that you have because you said things are moving so fast and you push back hard against what you call privacy nihilism. The idea that the surveillance here is moving so fast, so pervasive that really fighting back is pointless. Um but isn't there a version of the nihilist argument that's hard to refute? The data's already out there, Cindy. Companies already know everything. What do you say to someone who genuinely feels it's too late?
Well, I mean, look, I guess I think a couple of things. One of the things if you talk to the people who are trying to surveil you, they're not done. They don't think they've got everything because your life is going on and they want 360 surveillance of you moving on into the future, right? And so they're not stopping. Why would we stop in terms of thinking about how to protect ourselves? It's It's It's That's just not how surveillance work. The The information that is most recent about you, what you're doing, what you're buying, who you're associating with is the most valuable and um the older information isn't. So, the sooner we stop it, the less valuable all that surveillance is. I mean, it's just kind of as a as a matter of usefulness of the information. So, I I think this idea that it's all over and we've already lost it and it's all out there isn't actually true. And if it were true, you'd see them stop spending all the money trying to surveil us going forward. Like, so.
Um so, I think that's I mean, that's kind of a very simple answer to that. But also, you know, this isn't a problem that is all that old. I mean, we've solved harder problems as a country. Uh you know, we ended slavery. We we brought the vote to women. We we've we've changed things that took a long, long time to do. Um you know, the the rise of the surveillance business model and the massive surveillance of Americans that's happening right now is probably, you know, depending on how you count, you know, 20 years old. Um we we can we can put a stop to it. There's there's some fairly simple things we could do to put a stop to it like banning the surveillance business model and requiring a Fourth Amendment probable cause warrant for the government to get information that, you know, about your papers, your uh and and in your home. Um I think those kinds of things would not be all that hard to do, hard as in like complicated uh as much as it requires political will and the willingness to, you know, vote in people who will vote for things that protect our privacy.
Mhm. If you just joined us, my guest this hour, Cindy Cohn. There are a handful of lawyers in American history whose cases you benefit from every day without knowing their names. And Cindy Cohn may be one of those. Um an Iowa native from Newton, um became one of the country's foremost digital rights lawyers, outgoing executive director of the Electronic Frontier Foundation. Goes by the acronym EFF. Her new memoir is titled Privacy's Defender, My 30-Year Fight Against Digital Surveillance. Cindy, we won't have time to talk about all these pivotal cases that you've been involved in. So, but I'd like to go back to Bernstein versus the Department of Justice. This is in the mid-1990s, where a UC Berkeley math PhD student wanted to to publish his encryption algorithm online. The federal government had classified encryption software as a munition here. Publishing it without a license that it it it it saw that as a munition could could make him an arms trafficker. You took this case and argued that computer code is protected speech under the First Amendment. Walk us through what what what was actually at stake in in Bernstein versus the Department of Justice?
Yeah, I think you did a good job summarizing the context. So, I represented a math PhD student who wanted to publish some computer code online that helps keep things secret. Um and
The founders of EFF, the friends that I met at that party in my house in the early '90s, you know, were realizing that the internet didn't have a lot of security or privacy built into it, and that trying to add security and privacy was running into this problem with the US government treating encryption software as a munition. And so, they targeted getting people to have access to encryption as one of the kind of prerequisites to building an internet that stands with users and that isn't full of surveillance and security problems. And so, we took this case and we really listened to what was going on online. And you know, encryption is something that's really important for us as end users to have privacy and security, but it's also a science. Um, and it develops like science does, with one person publishing their ideas, other people taking a look at it, publishing their criticisms, and back and forth, right? The scientific method that we all learned in fifth grade. I learned from Mr. Stone in fifth grade. Those kinds of methods were already in the 1990s happening in the digital world. Um, and my client Dan Bernstein wanted to participate in that ongoing development of the science, but he needed a license from the government that would not be granted for strong encryption, which it was at the time. So, we challenged on the grounds that computer programs are protected speech. Publishing a computer program is something as part of speech, and in this instance as part of science, which has always been a part of speech and scientific development, and that the government's rules requiring a license for that did not meet the First Amendment standards. And, you know, the crazy bunch of hackers showed up with me in court. We presented a lot of information to the judge, and we were very lucky. We got a judge that was willing to sit and listen to what we were saying about this coming digital future, and she agreed with us.
