The Lawyer Fighting Government Surveillance for 30 Years (With EFF's Cindy Cohn)

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25:22Okay, so let's talk about your reason for writing the book. I'm here to recruit you to 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.

25:56And then more recently, we have 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?

26:20Cindy Cohn:Yeah, I think people have been passionate about privacy overall. 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.

26:50Cindy Cohn: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 marshalling 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.

27:31Cindy Cohn: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.

28:09Cindy Cohn: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 because 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 because I'm really happy about it. We're in a moment because it's becoming so clear that lots more people are getting energized.

28:43Cindy Cohn: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.

29:13Cindy Cohn:Because 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 Cohen, 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, the fighting the good fight as a way to spend your career.

29:49Right, 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 surveillance and I guess encryption. But AT &T, obviously, 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 have local police buying access to really powerful automated license plate readers, to AI-connected cameras, to cell phone location data, to social media monitoring tools and things like this.

30:38And 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 how you think about that because it's made the fight maybe a lot more complicated, but almost a little bit more accessible in some ways because you don't necessarily have to suit the NSA or the Department of Justice.

31:13Cindy Cohn:Yep, exactly right. And we've leaned into our municipal work where we're partnering with people in 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.

31:46Cindy Cohn:And so we're trying to be flexible and 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. 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 that wasn't, we didn't believe that at the time. And certainly over time, we've seen the same technology trickle down and be used for a wider, wider range of things.

32:24Cindy Cohn:So this was predictable and we tried to stop it, but we're just, 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.

33:02Cindy Cohn:They see this at a level that with some of the national security surveillance, 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, 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 awakened a whole other set of people to the dangers of this 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.

33:42Cindy Cohn: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. I remember that, you know, there's a famous quote from Benjamin Franklin 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. Yeah. Yeah. We'll dive into the dystopia in one second. But I just... I know. You're trying to stay away.

34:19No, but I think people want to hear because I think a lot of people are maybe feeling a bit hopeless and it's not hopeless. It is bleak, but it's not hopeless. But I just want to add on to that, that we have seen a lot of people, just random citizens and or like really local groups, not necessarily even file lawsuits, but push back at city council meetings and they've been able to get contracts, surveillance contracts canceled simply by showing up at a local level. And I think that that is like a place where it's a lot more accessible and people can sort of take some optimism from.

34:58Cindy Cohn:Yeah, it really doesn't take very many people if you show up at your board of supervisors, especially if you live in a small place. I mean, you know, we hear stories from kind of, you know, rural Washington state and other places where, you know, really just a few people showing up at a city council meeting or board of supervisors meeting can actually change the dynamic. I mean, it's just this, you know, the smaller the place, the fewer people it takes and then the bigger and you get all up to the national and it can take a lot more people. But, you know, when we were fighting SOPA PIPA, which is another EFF battle, like we shut down the switchboard in Congress.

35:31Cindy Cohn:So there are enough of us who care about enough of these issues that we can have an impact federally if we're all pulling together. But it is actually doesn't take nearly so much if you're working on a local level. Yeah. Okay, let's, I guess let's quickly talk about the dystopia. A lot, everything that you write about in the book, or a lot of what you write about in the book are wins in court, in federal court. You talk a little bit about lobbying and pushing for better privacy legislation with the USA Freedom Act, which did roll back some parts of the Patriot Act, but was really watered down.

36:07And you talk about being quite frustrated with that process, the sort of the lawmaking process. And I'm curious, you know, the courts have been a pretty good way of pushing back against this, but the courts have been changing recently. And I'm curious sort of what you think the current state of play is.

36:26Cindy Cohn:Yeah, I mean, look, there's three branches of government, and that's not actually going to change. So we do have to work to make them all better. You know, Congress has been awful on this, although Section 702, which is the law that Congress passed as part of USA Freedom Act, well, actually even before this, the FISA Amendments Act, to bring some of the secret surveillance under at least some kind of oversight by the FISA Court and Congress. It's up for renewal in April, and that will be front of mind for my colleague India McKinney and Matthew Guarglia and the people at EFF who do this kind of lobbying to try to see if we can get, I mean, I'd like it to go away entirely, but at least get some more checks and balances on it and get that to happen.

37:11Cindy Cohn:I mean, I think that right now we have a lot of lower courts that are showing a lot of backbone and even courts of appeal, some of which are showing some backbone, but we have a real problem with the Supreme Court now. So this is part of why we brought the San Jose case in state court, right? Because we want to try some other venues to try to protect people's privacy better. But I don't want to throw too many rocks at the judiciary as a whole, because I think we're seeing a lot of courage at the lower levels. And, you know, the courts aren't hermetically sealed off from our culture, right? I mean, it is the case that we'll see more bravery if we see more support for the brave people.

37:52Cindy Cohn:And so I think it's important for people to continue to pay attention and to continue to recognize where good things are happening, even as we continue to push for more, you know, EFF doesn't lobby, doesn't do electioneering, but there are elections coming up. And I think that that's a time for people to make their voices heard as well. But yeah, I mean, we're spreading out the strategies that we do to try to make sure that we can still make good change, even if some of the old tools that we relied on when I was just starting out are not as great anymore. And we're also having to defend the institutions themselves.

38:26Cindy Cohn:I mean, one of the things that the Trump administration has really done is it's begun to try to attack the tools that we use, not just the thing that undermines some of the accountability that we worked hard to build in. And so we've had to shift a little bit to actually defending the tools as much as defending the issues. We stood with some of the law firms that got attacked by Trump because we know how important it is to have a strong base of pro bono support for making social change in the law firms. We work with these law firms. That might not have been something that we took on in a different time, but we realized how important it was to be able to do the work we do do to support the institutions and the pieces, the building blocks that we use.

39:17Last one for me, and then we'll move to audience Q &A. A question I get all the time is, is it possible to have privacy at all anymore? Like the people feel in some ways, maybe like they can't leave their house. They can't use the internet without being surveilled in some way. And I understand why people feel that way. I think also I write about like pretty scary surveillance tools and how they're used. At the same time, I try to tell people, you do what you do to try to protect yourself, but you can't like hermetically seal yourself in your house. Like you have to live your life. part of the purpose of surveillance is to make people very scared.

39:58And I'm curious, like how you think about that question of whether privacy is possible anymore and how to protect yourself out there.

40:07Cindy Cohn:Yeah. I mean, I think it's a real legitimate concern and I think your advice is good, is good advice. I mean, you know, we have to, we're not gonna, I think sometimes these questions of privacy get reduced down to individual choice. Like, you know, how do I protect my privacy and my choices, you know, whether I use a service that spies on me, like that's my fault because I gave it away. And so I just shouldn't use it. So it's kind of this blaming the victim kind of mentality. I mean, the game is rigged, but also I don't think abstention will work for most people. There are a few people who are privileged enough in society that they can just unplug and go live in the world, live in the woods and not use any of these services.

40:48Cindy Cohn:But the rest of us need them. And especially people who come from marginalized, you know, you can't get a job without going online these days very easily. You can't get a mortgage. You can't rent a house. You can't buy many things that you might want to buy without engaging with the surveillance world. And so the answer has to be we have to kill it. We have to band together as a self-governing society and decide we don't like the surveillance business model anymore. We're not going to let them do that. I think you can do that consistent with the First Amendment, although you have to be careful about how you do it.

41:23Cindy Cohn:You know, there are tools that can help for sure, but technology needs, technology, law, and policy all have to work together for us to get to this place and culture. So, you know, use Signal, use Tor, use all the, you know, all of our friends who are building a more secure, more distributed, less centralized version that doesn't have the surveillance business model. They're great and we support them and we encourage people to support them. But I think sitting all alone in your house and not engaging in the world is what they want us to do. And so I don't think we should fall for it. Instead, we should stand up for a world in which we get all the goodies, we get all the toys, but they work for us and not against us.

42:05Cindy Cohn:I mean, I love technology. I love it when something comes along and it does something good. I worked for the Electronic Frontier Foundation, not because I hate technology, but because I love it. And I just... I say that too all the time and no one ever believes me. I just demand a better deal. We should demand a better deal. Moses did not come down from the mountain with stone tablets that said, the internet must surveil you, right? It's not that bait. It's not even that old. So we can fix it. We just have to have the will and we have to not believe the people who say that there's nothing we can do because that's what they want us to do.

42:40Cindy Cohn:And if anything else, just be a bit of a little rebel in your heart. I'm not going to succumb to privacy nihilism because that's what they want. That works for me. So there's a question. It's a very nice one. If someone is watching and they want to do one thing, this is the nice part. In addition to joining EFF and subscribing to 404 Media, what would you tell them to do? I mean, look, it depends on what you're concerned about. I think that if you're concerned about security, install the updates for all your software. That's the best way, you know, that's still the best piece of advice in terms of kind of data breaches and things like that.

43:18Cindy Cohn:I know it's not sexy, but it is. I think that to the extent you can move a lot of your communications over to encrypted tools, that's one thing you can do. And the nice thing about that is privacy is a team sport. If you can move the communications with your friends over to a signal platform or something else, we're still beating on Apple and Google to make end-to-end encrypted between Android and Apple devices. But there's a lot of tools that can help you have kind of baseline privacy in your communications, and they're a good first step. I successfully convinced my, you know, as you know from the book, my community is really important to me.

44:02Cindy Cohn:I successfully convinced a chunk of my community to move our group chats over to Signal. And honestly, I did it because our friends who had Android machines kept getting dropped off the thread and it was really annoying. And so I convinced everybody that we could move to Signal and then nobody would ever get dropped off. We wouldn't have to add people back in again. So my pitch to them wasn't even a privacy pitch. It was a usability pitch, but it worked. Right. And that's good. We, you know, there was a horrible case in Nebraska where a mother and her daughter were prosecuted because they were discussing the daughter's interest in reproductive help over Facebook Messenger, which is not end to end encrypted.

44:40Cindy Cohn:and it was that information that ended up with the mother and I think I think the daughter might not come to jail but the mother ended up going to jail for facilitating an abortion and if that same communication had happened over signal or over whatsapp or over some encrypted messaging that might not have happened it might have come out very differently so just that one thing you can do and you may not know the thing that it protected you against or your friends against but remember it's not just your privacy that you're thinking about. It's everybody who's in your contacts list, everybody you communicate with.

45:12Cindy Cohn:And they may have different risk factors than you do. Sometimes people say, you know, I have nothing to fear. So I have nothing to hide. So I have nothing to fear. And I always kind of encourage them to think about all the other people in their lives and whether that's true for all of them, because we literally have each other's privacy, you know, in our hands. Yeah. And I can't, there's been multiple times when I have talked to someone who has been wrongfully arrested or subject to surveillance who said, I thought I had nothing to fear because I wasn't doing anything wrong. And then there you go.

45:44Cindy Cohn:Yeah. And it changes fast, right? I mean, this is one more thing is if you don't feel like you're in the crosshairs now, that may not be the case in the future. I don't think I would have told you that observing the police would end up with people being surveilled and tracked or monitoring the police. But we're starting to see that, right? It was a terrible case in Maine where basically the ICE agents identified where somebody lived who was observing them and used that to intimidate them. So even if you think that could never happen to you, I worry that that may be true today and not true tomorrow.

46:16Right. This is a question from Carl Rossman. I'd love to hear about how EFF has changed over the years and where it's going in the next decade.

46:25Cindy Cohn:Well, it has changed a lot over the last years. I mean, we're 125 people. When I joined EFF, we were probably about 15. I don't remember. So we have grown and we have, you know, developed out like, you know, we started we have a whole technology part of EFF now where we build technologies as well as advising lawyers. That started because when I started at EFF, I would call computer science professors and ask them to explain stuff to me. And ultimately, we hired an in-house technologist to help us navigate this and also help us find resources. His name is Seth Schoen. He's still around. And so we built out this technology team first to advise us on policy and law.

47:06Cindy Cohn:And then, you know, as you learn, when you get techs around, they want to build stuff. And so they started building things. Our activism team has been built out over time. We've always done a little international work, but we really developed some pretty strong work in Latin America, especially, and in the EU. As the EU emerged as a place that started thinking about tech policy, we've engaged there more and more. So, you know, I would say it's been reactive largely in that we see what the world needs and we kind of go in that direction. and that's kind of how we've tended to do things. And, you know, we've got, we're a much more diverse team than we were when we started, you know, kind of as the internet has grown and become more diverse than the kind of, I mean, I love all those early hackers who showed up at the hearings with me, but they all were kind of guys and, you know, of a certain class and generally white and the internet isn't that anymore.

48:09Cindy Cohn:And so our staff looks a lot different and the issues we work at and the groups that we work with look a lot different than it did in the 90s. And I think that will continue to change. I mean, as the internet presents us with new issues, we try to figure out how best to use our skills to meet the moment. And sometimes we add skills as well. I don't know about the next 10 years. Obviously, AI is everywhere, and we have been thinking about it and doing some work on it in various areas for a while. I just don't think there's any way to avoid kind of taking those issues on as they come up, and we will continue to do that.

48:47Cindy Cohn:I'm going to be leaving EFF in June. I feel like it's time to pass the torch to the next generation. So what EFF becomes in the next 10 years will be a lot about, as it always is. It's never, EFF isn't a top-down organization, it's bottom-up. And so the people who are here and our community will determine, you know, will help determine where we go next. We have two questions that are kind of advice questions. I feel like we touched on them a little bit, but I'm going to ask them anyway in case there's anything else to add. What can I do to protect my privacy online? Where can I go to learn more and get involved?

49:22You mentioned groups, people to get involved with. I was given permission to answer some of these questions as well. So, I mean, I would recommend definitely following DFF's work, follow our work, 404 Media. We write about privacy all the time. But there's a lot of other really great organizations like the Center for Democracy and Technology, the American Civil Liberties Union, obviously, EPIC, which is Electronic Privacy Information Center. There is, I would definitely try to familiarize yourself with different cybersecurity, like how to keep yourself safe from that perspective. The journalist Zach Whitaker has like a really great newsletter.

50:05That's my suggestion. Anything else?

50:09Cindy Cohn:Those are really good suggestions. We work with all of them. And, you know, one of the things that's nice about the digital rights community is we're all kind of friends and we all support each other and we all try to figure out, oh, wait, you know, if ACLU is doing this, we don't have to do it. We can do these other 10 fights that they can't do. And so we, you know, I wouldn't say we formally coordinate, but we informally do. And they're all great organizations, the digital rights community. And there's internationally as well. There's a group called Access Now, but there's also groups all around the world as well.

50:38Cindy Cohn:I know we have people who are on this live stream from other countries. It's not just the U.S. Access Now has a big conference called RightsCon that's actually happening in Zambia this year. But people from every corner of the world who are interested in digital rights come to that conference or, you know, show support. So there's people all over the place who are doing this. Find the ones who are local. It's not too hard to find. And again, I think we try, we have local groups all across the country who are loosely affiliated with EFF that you can find and that we have information on our website about them.

51:14Cindy Cohn:But yeah, finding local folks is great. Again, both EFF and 404 Media deserve support, but there's a lot that you can do from wherever you live. And then another question, what can I do about being targeted by my local police for surveillance, veiled threats, harassment? I'm an independent journalist who writes about police accountability. I mean, it depends on the specifics, obviously. The way that we have handled this is by really, really informing ourselves on our rights as journalists. You have to be quite careful about how you gather information and that sort of thing, but also knowing what you're allowed to do and what you're not allowed to do, first and foremost.

52:00And then we are kind of thankfully have our own lawyer that we can like run things by and that sort of thing. I know that's out of reach for a lot of people, but I know that there's a lot of organizations that do pro bono work and help out from that perspective. But curious if you have anything to add there.

52:19Cindy Cohn:Yeah. You know, look, if you have real legal advice, info at EFF.org is our intake. There is a person there who will get your email and help. So if we can't help you, help you find counsel, we have a very strong list of cooperating attorneys who help people, some pro bono, some low fee, sliding scale, some full freight, depending on what you need. And you really do need somebody to talk individually with you about what your threat model is, what's going on. So I would really recommend that. Another group that tracks a lot of this is the Freedom of the Press Foundation, which was kind of launched a little out of EFF.

52:55Cindy Cohn:I talk a little bit about some of that in the book. And they're also another good place that is tracking harassment and issues involving journalists. So they're another one I might name check around that. But there's the Committee to Protect Journalists. There's a whole set of journalistic support organizations as well. I think that's all we have time for at the moment. Thank you so much, Cindy, for doing this and also for writing the book. Just a last plug. It's a good book. Please read it. It was fun to read. I felt like I had known a fair bit about these cases, but I learned so much more. I think it's also very accessible.

53:37If you are at all interested in this topic, you'll be able to follow it. It's not overwhelming. So congratulations on writing a book that I think appeals to technical experts, but also people who are just getting interested in this topic.

53:51Cindy Cohn:Thank you. And I will tell you that my publisher said people should write reviews. So if you like it, they say write reviews on Amazon or wherever you get the book, because that helps spread the word. And I'm not a professional promoter, but I have been told that that is a good thing to say. So I'm also working on a little book tour. If you go to eff.org slash Privacy's Defender, you can see where I'm going to be in the next couple of months. But so if you want to come out and say hi, that would be great as well. And I sign books and things like that. Thanks so much for listening. This episode was produced by Kaleidoscope and edited by Alyssa Midcalf.

54:29We'll be back with a new episode in a few days.