Let's get into Privacy's Defender today. It does matter because there's a lot of things happening in blockchain. We'll break it all down for you. I've got a special guest. Let's just jump right into it. I do want to thank our sponsor today and that is Tandem. Speaking of privacy, self-custody is one of the things you can do in crypto today with a hardware wallet where you can control all of your assets. Very easy to set up over on tandem.com. Works with your phone. This gives you true ownership. No bank, no exchange stands between you and your funds. You guys now have it all built into a card and a tech that's meant for you. Use our link down below to get some discounts and get going here.
I want to showcase a book which is Privacy's Defender. This of course is done by Cindy Cohn who is the executive director over at the EFF and it's her 38-year fight against digital surveillance. We're going to talk a little bit about that but why this is so important around crypto. Before we bring her in, I want to play a clip where she was on the Jon Stewart show talking about this. Take a look.
We need better options and people are developing them. I know it's not very big yet, but it's a decentralized place where people can build safe communities for themselves. I think that when you pick censorship as your strategy, you are dealing with... No, that's what you want to do. You want to create liability for the company based on things that people say to each other on the network. And what you're doing is you're saying you should make sure that those people can't speak on your network because they're causing harm.
I mean, there are libel laws. There are slander. Isn't that censorship?
Well, I mean you can always sue the people who are harming you on the platforms. The question is secondary liability. I just want people to be able to leave. I think that the censorship strategy feels really easy and I worry it's going to backfire.
Yeah. Yeah. I understand. I think we define censorship slightly differently.
We might. Social media to me is like secondhand smoke sometimes.
The answer isn't to try to take a dictator and make them a better dictator. The answer is to get rid of the dictators and make them less important.
All right. So, I like what she had to say. We asked her on the show and I want to welcome her in. Cindy Cohn, how are you?
I'm well, thank you so much. That was fun.
So, you got a chance to go head-to-head with Jon and first of all, did he really understand the solution you were trying to present? Do you think?
I mean, I think by the time we got to the end, and honestly, the conversation continued after the cameras stopped rolling. And I think in the end, he understood what I was talking about. I just think that there's an effort to try to deal with some of the harms that are happening online that has a very grooved path. And whenever you're trying to convince people that that's not the right path, they think that you don't care about harms at all. And so I had to really work hard to get him to recognize that the answer that I think is better for harms is actually significantly more dangerous for the big companies than the one that they're embracing and it took a while to get him there.
I think at the end of the day, what he really wanted was transparency. He's not comfortable with the way that some of the social media algorithms are really... it's really hard to see how they're working. And I think that's fair. I mean, EFF is very supportive of more transparency around these kinds of things. And so we found some common ground there, but you know, the stories about the bad things happening to people online are heart-wrenching and I have a lot of sympathy for people who want to do something. It's just that between recognizing the harm and actually doing something like that, the devil's in those details and that's where I live. That's where EFF lives. It's not what do we do in response to it.
Because I think he kind of came back at you on this and that is kind of the KYC element, someone having to show who they are, whether it's through a government ID or something of that nature. Would you be for that or would you be against that in terms of these water cooler type environments, social media?
I mean, I'm against them and I think there's good reason why you should be worried about that as an approach. This idea that all of us as individuals have to prove who we are in order to participate in public discourse.
I think that there's lots of places where KYC is something that we would advocate for, but I think this is really dangerous. It's dangerous on a number of levels. One is of course they say it's about children but it means all of us have to be positively identified or at least try to be positively identified no matter what we're doing online for a huge swath of things. We know that the people who don't have access to good IDs generally are marginalized people. So we're going to start by making it harder for people who need these communities to participate. And you know, we've already seen a lot of data breaches, right? I mean, I think the presumption that you give your identification information to a private company that then is usually contracting this out and that it's never going to go anywhere else and it's always safe is not one that is consistent with the way that we live. So I think there's a lot of problems with requiring positive identification of individuals in order to participate in any kind of public communication.
The other thing that I look at is kind of the overreach of government. And if you look at what the DOJ has been doing around Tornado Cash, this is built around basically a developer that created some code that a bad guy used, that's kind of the core of it. But yet the DOJ is going after them again even after some of the case had been ruled not necessarily their fault. Why do you think that is?
Well, you know, I think there's a couple of factual questions there. You know, EFF, we filed briefs on several, a couple of times in the Tornado Cash cases to point out that like merely developing a tool that other people misuse shouldn't be a basis for liability. There has to be significantly more and we've got serious questions about that. Again, I think people see the harm and they jump to the first thing that gets presented as a way to deal with the harm. I mean, nobody really is a fan of the North Koreans money laundering, you know, a lot of money. And I think from the government's perspective that once they've identified the harm, what they do in response to that harm is far less important. And again, that's kind of where we live. You have to tailor what you're doing in response to the particular harm. And the question in all of these cases is, you know, if you're just developing code, you shouldn't have any liability. If you're actually participating in illegal transactions other than developing the code, then that's a whole different thing. And I think that's been lost by the government in those cases. And I hope that we're starting to see some of the courts recognize that distinction, but not all of them. And I'm troubled by the case.
Yeah. You've been fighting this fight for 38 years, and it does not appear... I'm not saying that you have done a bad job at all. The fact that you're bringing all this to the front of the discourse out there, I think is a good thing. But I look at it and I think I don't know if surveillance has slowed. If anything, I think it's only accelerated. So do you think this is at some point just going to have to be a line down the middle that says you are either pro-privacy or you are government, you know, to where it's which they definitely don't care about privacy. Where do you think that?
Yeah, I mean I think so. I think if we're going to save our democracy, honestly, I think this is about self-government, we're going to need to exert privacy again, especially vis-a-vis the government. I mean, I care about corporate privacy as well, especially since it feeds the government. We know that the number one purchaser of information from data brokers is the government. The FBI just said they're going to keep doing it. So, you can't really think about it as like a line between government and private surveillance. But, yeah, I think we're going to have to take a hard line against... I think that line goes all the way back to the Constitution. The Fourth Amendment was created to stop mass, you know, untargeted surveillance. That's what the general warrants were. That's the basis of the Fourth Amendment. So I think that even if you're a, you know, originalist and you think about the history of the country, it's not new to think that we have to do this.
But you're right that these fights have gotten harder and harder as this admixture of the government wanting to know everything about everybody which got supercharged after 9/11 and the companies using mass surveillance as their primary business model, these two things have really combined against us. And then when you add things like AI and the development of these technologies to be a lot easier for a lot more people to use, and you end up with ICE agents using facial recognition on protesters, like this is technology that didn't used to be available to, you know, agents on the street and now is. So yeah, I think we're facing an ongoing uphill battle because we have refused to recognize the risks of not protecting privacy in small ways and now we have to think about protecting them in big ways.
Listen, this fight goes back a long way. I mean, even if you look at predating what happened on social media and you go all the way back into the Clipper Chip era when they were trying to integrate... that's when I was, you know, basically a young developer watching this happening in front of me, which is why I left Silicon Valley, was what I was seeing was the advancement of government overreach happening at that time. Now I was just on with Warren Davidson just last week. He and I were talking about 702. He hits it right here on this tweet. We talked a little bit about the Government Surveillance Reform Act, why Congress must close the data broker loophole you just mentioned a second ago in reference to protecting Americans on Section 702. Explain what will happen on April 20th, which is just around the corner here.
I know that people like to call it the data broker loophole and I think that's fine but it's actually not... 702 isn't the mechanism by which data brokers are selling information to the government. It's not happening under... you know, this is lawyerly but it's not happening under 702. But what 702 does is it authorizes the government to do mass surveillance of Americans by going to the telecommunications companies and our service providers and demanding that they turn over en masse information about us. And one of the things they're doing is tapping into the internet backbone and watching the traffic that goes by and selecting out what they need. This is the central program that EFF started suing about in 2006 and it's still going on. We've shrunk it, but it's still going on to a lesser degree.
That authority to do that is up for renewal on April 20th. That's one thing Congress did was make it expire. And if it gets renewed, it actually got expanded the last time it was up for renewal. It needs to get contracted if not go away. And one of the things that needs to happen is that this information is supposed to be collected for national security purposes and used by the NSA to find spies and terrorists. But the FBI has had access to it in ways that we don't understand. We can't control. We can't even count. They won't even give us a number of how many Americans are affected by this. So, the loophole that I think we need to close is the FBI shouldn't have access to information that the National Security Agency collects for these narrow purposes.
And I think that closing that loophole, which Senator Wyden has a bill on it and so do some other people. Closing that loophole is the number one priority for a lot of people including EFF. I mean, again, I'd like to see the whole thing killed, but short of that, we'll keep chipping away at it. And this is a very big chip. This information, we were told that this information was important to allow the NSA to protect us from terrorists, and now it's being used by the FBI in domestic investigations that have nothing to do with terrorism, and we need to close that off.
Is there a way for an American citizen to actually do a FOIA request on what the government has on you personally?
Not in the context of you... I mean, you can for some pieces, but anything that's national security or law enforcement, which is the stuff we're talking about here, have big exceptions in FOIA. So it's worth trying, see what you get, but the FOIA law itself doesn't require the government to turn over information if it is being collected for national security purposes or law enforcement purposes.
Oh man, this is not making me feel good. Okay, sorry.
We need to fix this as a policy and a legal matter and we need to build the technologies that support us doing that. I mean, that's one of the promises I think of the crypto world was that we would have a way to, at least on the financial side, but even on the non-financial side, we'd have some technological means to help protect information from the government and from bad guys. But we need to see that supported and come to fruition.
Well, we're going to find out because I think things are going to get very active especially after clarity, if in fact we get clarity through, because that will set up a lot of companies to develop some new technologies to maybe go in that direction. One thing that's happening on social media and this is one of the areas that I'm very intrigued with, especially on this move, is that Twitter now is rolling out a new feature that automatically locks accounts the moment that they start posting about crypto. So this is Nikita Bier who said that the system is now going to flag accounts with no prior crypto activity that begin promoting tokens, forcing identity verification before further posts. So basically KYC now, if you haven't ever been talking about it before and all of a sudden you found crypto and you start talking about crypto, you're going to get flagged. What do you think about this? Do you think Elon is censoring Twitter right now?
Sure. I mean that's a censorship... That's 100% censorship. I mean, you know, I understand the problem that they're trying to solve. There's a lot of scammy stuff going on in crypto, but it's a very blunt instrument. And this is usually how censorship works. And of course, you know, I think with Twitter, with Musk, you've always got to worry that is he favoring his own technologies. You know, is there an anti-competitive purpose buried in what might otherwise be something that if somebody who wasn't a player in this space decided to do that? But yeah, I mean this is why censorship is such a blunt instrument. You know, it's always going to be, not always, but almost always going to be overbroad. And this sounds like it's something that's overbroad.
You know, you got to look at the range of tools that X might have to try to stop scams. I think it's important for, you know, nobody wants to go to a platform that's just full of scams. So there's plenty of tools out there that can do that.
Probably other... I don't know the world well enough to know, but this sounds pretty blunt to me.
Yeah, this is getting to be a problem, I think, in general because obviously blockchain, to your point, was supposed to kind of solve this. We've already seen that even with stablecoins, there's integration now because of the Genius Act where they can actually go in and claw back transactions inside accounts. That's being done by Circle and Tether both. So, what do you make of that? When we do go to a digital system and have that government overreach, are you concerned that that is kind of the ultimate surveillance state where they can turn money on and off?
Yeah. I mean, I think and you know, look, credit cards have always had a version of this, right? And people's bank accounts get... you know, my friend Renee Ritchie just wrote a book called Transaction Denied that goes over all the ways in which our financial privacy and security is very tenuous right now and her stories are pretty compelling on this. Why move to a digital thing if we're just going to recreate the exact same problems that led us to do it in the first place? And I think, you know, that doesn't mean that there's no government. I think that's a bit of a... that's not probably going to happen and it's a bit of a misunderstanding. But I also think that, you know, simply creating winners and losers who get to be the ones that get to do things and everybody... like again, we had Wall Street for that. We don't need a crypto world just to create a bunch of new bosses who are the same as the old bosses.
I'm going to go through a rapid fire with you on some questions around this. Native zero-knowledge upgrades on Ethereum will be kind of the first real defense weapon against surveillance.
I don't know. I can't tell. You know, I like zero-knowledge proofs, but them in the abstract don't do anything. It has to be embedded in a really good system. So I'm hesitant to just say, 'Oh yeah, once you have zero-knowledge, you win.' Yeah, in the middle.
What about this one? Privacy will cost extra now, adding to the wealth gap in the US.
I mean, I think that's what we're seeing right now and it's a problem. We need to address it. You know, poor privacy for poor people is not an answer. I think this is a right and we need to treat it like a right.
