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Online privacy might seem like a quaint, nostalgic notion, as every day our social media feeds serve up ads for products related to recent conversations we’ve had. But for the past 30 years, the legal fights that shaped our current digital realm have always been more marathons than sprints, including the one that helped pave the way for online commerce to exist in the first place. And many of those fights continue. Just ask Cindy Cohn.
Cohn is a lawyer and the executive director of the Electronic Frontier Foundation, a nonprofit focused on protecting civil liberties in the digital world. Her memoir, “Privacy’s Defender: My Thirty-Year Fight Against Digital Surveillance,” which was published March 10, captures her work on landmark cases at different points in the web’s evolution.
Alongside recollections of how she and colleagues built their cases and why, she also shares more personal stories. Cohn, who was adopted, searched for her biological family, found love and forged some lifelong friendships among the broad community that came together around EFF’s work.
Cohn began working with EFF in 1993, early in its existence, as the outside lead attorney in Bernstein v. United States, a case that challenged the federal government on whether encrypted software code could be considered free speech. She has also served as EFF’s legal director and general counsel.
In “Privacy’s Defender,” Cohn revisits three significant cases over her career: the Bernstein case in the ’90s; two cases brought 20 years ago that fought post-9/11 government spying on individuals; and in the 2010s, a battle against sweeping National Security Agency gag orders that sought to conceal government surveillance.
Cohn is also working on a podcast, slated to be released in June, in which she interviews some of the people that she has written about in the book, who were there at different points in her work with EFF.
She announced last fall that she will be stepping down as EFF’s executive director.
“It’s good for an organization to let new people come in and lead it after a while. I felt like it was a good time to pass the torch,” Cohn said.
It doesn’t seem likely she’ll be retiring, though.
“Personally, I missed the fight. I mean, part of this memoir was me talking about places where I actually stood up in court and I wrote the briefs and we put the case together. I was able to do some of that as executive director, but it’s been less and less over the years. So I’m hoping to get back into the fight a little more closely,” she said.
Cohn will be at Kepler’s Books on March 18, in conversation with writer John Markoff, to discuss the book.
This conversation has been edited for length and clarity.
Embarcadero Media: What inspired you to write “Privacy’s Defender?”
Cindy Cohn: Well, I had a couple of inspirations. The first was that I reached this point in my career where I felt like we fought some big fights and it was important to tell the story. I told it as a memoir because I think a lot of the conversations about privacy are journalists or academics saying “Here’s all the ways your privacy is being violated.” I’ve gotten to spend a life actually doing the work of defending privacy, and I thought it would be a useful addition to help people think about this. I also was a little frustrated that most of the histories of the early internet are about men and the companies they built.Â
I’m a woman, I was very active in the ’90s. I didn’t build a company. I worked with a lot of the hacker community, which is not the same as the “techbros,” and I felt like they were all getting conflated in the history: anybody who knew about technology must be Elon Musk and that wasn’t my reality. I think it’s a pretty narrow history of what were pretty rich times, and it’s not like Steve Jobs didn’t build Apple. But that’s not the only thing that happened to create the internet for us and the internet we have today.
Embarcadero Media: The Bay Area feels almost like a character in the book. You write about finding community and you mention a lot of local spots and people, as well as the influence of Grateful Dead. How did the culture of the Bay Area shape your work?
Cindy Cohn: I think it shaped it tremendously. First of all, the overlap between people who were into counterculture, psychedelia, the Grateful Dead and people who were into computers, was huge. I’m not a serious Deadhead, but I know people who travel with the Dead and I was always very interested in that culture.
The fact that a lot of these people who were not really otherwise accessible to me found community in the same thing that was a way I could connect — and literally, in the person of (EFF founding member and Grateful Dead lyricist John) Barlow was able to connect.Â
The Apple “Think Different” slogan is hackneyed and feels phony right now, but I think there was a way in which the Bay Area in the 1990s — especially as the internet was going from this thing that was just for a small number of people and academics and government, to the rest of us — this community, this overlap, was really important.Â
The very first newsgroup that somebody showed me on the internet — this was when I was in law school — was the Grateful Dead newsgroup because there were enough of those people online, and they were sharing. You could get the soundboards (recordings) of the music. I don’t think I’m alone in this. I think that there was just a huge overlap between these two communities. I think it’s because the Grateful Dead were open to the weird and the people who didn’t fit in, and the early internet felt open to the weird and the people who didn’t fit in.
Embarcadero Media: How would you say Silicon Valley and its leaders have changed since you began your career?
Cindy Cohn: It’s always been important to make money, so I’m not sure the CEOs have changed in that way, but I think there was a sense in which thinking about your users, and siding with your users and helping create a different kind of world for people was much more central and much, much less about extracting maximum capital out of users.Â
I don’t want to be too glassy-eyed about it. I mean, Silicon Valley’s always had deep military contracting (ties). But I do think that a lot of people were drawn into tech because they saw the possibilities of making a better world. I feel like those people do still exist, but they don’t have as big a voice in the public conversation.Â
I literally had 30 tie-dyed, rag-tag hackers show up with me at every single hearing in order to sit in the courtroom (for the Bernstein case) and signal to the judge that this was important. I think that that helped broaden the conversation and help the judge think about this as about the future of the internet, and not just about the narrow niceties of prior restraint law, and also to recognize that there was another side other than the national security side.
We were going up against the national security infrastructure of the United States. Some of these people who were technical showed up consistently, physically, in the courtroom, but also filing declarations for us to really try to stand up for a better internet. I don’t see that spirit in Silicon Valley anymore, and increasingly, I see some of the big companies who started off on the side of the users really flipping sides.
Embarcadero Media: What developments with online privacy and digital rights have surprised you most?
Cindy Cohn: When we freed up encryption, I didn’t expect that we were gonna end up having it be a long-term win, necessarily. It’s not like there haven’t been attempts to try to re-control encryption, but I really thought that the government was going to come back with a new licensing scheme or a new way to try to control encryption and they really haven’t done that.
We need to build a lot more security into the internet. We’re nowhere near where we need to be. But the fact that we won that first step and it stuck is something I continue to recognize as a good thing that happened.
I think the thing that went the other direction is the surveillance model, and the way that it has just taken over, and now it feels like it is the predominant business model of the big tech companies. They all have the same business model — Apple doesn’t quite — which involves surveilling users and then marshaling that information in some ways against them. They tell you it’s so you have personalized ads, but it’s increasingly dictating what you pay for things in ways that are trying to maximize how much you spend, whether you get a mortgage. What ads you see means what jobs you get ads for.Â
The ways in which surveillance capitalism has taken over the digital world and is increasingly used against us is something that is really unfortunate and problematic in and of itself, but also because, as we’re all increasingly seeing, it feeds the government’s surveillance.
Embarcadero Media: With the growing use of AI, how could that affect online privacy?
Cindy Cohn: Hugely. Again, we’re in a moment where, if we don’t regulate and put some limits on, it could be very problematic.Â
It is not a surprise to me, the fight between Anthropic and the Department of Defense is because of two red lines that Anthropic (won’t cross). Those are not the lines I would draw. But one is automatic weapons that don’t have any human but that just run on their program. The second is surveilling Americans, domestic surveillance. Why? Because if you add AI on top of all the data that’s being collected about all of us, it becomes even more powerful, and we become powerless. We have less and less agency over not just what’s happening to that data but the impacts on our lives. So AI really can supercharge things and we’re starting to see it.
I think you only need to look at where Anthropic — and believe them or not — OpenAI say they drew the line is on surveilling Americans, because they see how dangerous it could be, honestly. But we’re just at the cusp of their being able to use it.
Embarcadero Media: You write that you want to recruit readers in the digital rights movement. What can a person without much knowledge of the law or tech do to support online privacy?
Cindy Cohn: A lot. We need people with all sorts of skill sets. If you’re somebody who’s great at marketing, privacy just loses on the marketing battle all the time. People don’t know how to visualize it. It’s kind of sneaky and hard to see. It doesn’t feel real. I’d love to see more people with smart marketing ideas.
My husband’s a data scientist who I met through all of this work. He uses data to do human rights investigations, but he’s not a lawyer. He’s a bit of a geek, but he’s really a sociologist. Whatever your passion is, there’s a way that you can help.
Honestly, I make a bigger call, which is: follow your passion to help make the world a better place, no matter where it is. I found mine in digital rights. I didn’t start off thinking that’s what I was going to do. So you don’t have to do exactly what I did or exactly the way I did it. Part of why I put my personal story in there is to try to spur the idea that it can be a really good and interesting life to follow your passions and to try to make the world a better place in whatever way serves you.
So I’m making a bigger pitch, which is to think about actually spending your life doing this kind of work, because the good guys need full-time help.
Cindy Cohn discusses “Privacy’s Defender” March 18, 7 p.m., at Kepler’s Books, 1010 EL Camino Real, Menlo Park; $45.09 (includes book and admission); $21.99 general admission (no book); $11.49 students and low-income; keplers.org/upcoming-events-internal/cindy-cohn.
