Recruiting You to the Barricades

I would never dare to claim that privacy was dead in Cindy Cohn’s presence. Cohn has spent over a decade leading the Electronic Frontier Foundation (EFF), the nation’s leading digital rights organization, based in San Francisco, and two decades defending individual civil liberties online prior to that. While many of us were blithely signing up for Facebook and shrugging at revelations about mass surveillance, Cohn was suing the federal government to protect our rights.

Her goal with her new memoir, Privacy’s Defender: My Thirty-Year Fight Against Digital Surveillance, is a classic public interest litigator’s mission: “I’m trying to recruit you,” Cohn says plainly in the introduction, “to inspire you to dedicate some of your life to making the world a better place, in whatever way best suits you.” Only an advocate who deeply believes in the public good could speak so earnestly, with the conviction of a fighter who has both won and lost in her mission.

Privacy’s Defender combines two primary strands. First, it’s a narrative of Cohn’s life, from an Iowan childhood through law school and ultimately to 35 years of legal practice in the Bay Area. Second, the book details three legal fights concerning the internet in which she played a pivotal role as digital technology came to dominate all our lives. She unsentimentally recounts her early years with prose that moves but does not manipulate us. Cohn’s parents adopted her at birth, driving all the way to Detroit in a car without license plates; later, her parents divorced, and her mother developed bipolar disorder. As a teenager, Cohn—one of the only Jewish people in her small town—stood up for her right to not sing in a church for Easter as part of her choir class. A local lawyer and friend of the family helped engineer her absence from the concert without consequence, giving her an early taste of resisting injustice.

By underplaying early events like these that shaped her justice frame, Cohn shows how each of us can live our values. “Whether this little incident was the seed or just another confirmation, it cemented the feeling in my bones that my role in this world was…to help make things better for those who don’t fit in.”

Cohn’s development as a new lawyer occurred in parallel with the growth of the commercial internet, almost as an accident. She had a front-row seat to the birth of online life as she began her legal career in San Francisco, where a boyfriend introduced her to the early-’90s hacker community. By happenstance, this led to her first high-profile technology case, Bernstein v. United States. That case, Cohn observes, wasn’t just about plaintiff Daniel Bernstein, a UC Berkeley mathematics PhD student who wanted to publicly distribute his research on cryptography without fear of violating U.S. law; it helped facilitate the development of online banking, including PayPal and Venmo, and secure messaging apps like Signal and WhatsApp. Fighting for one person’s rights helped support the growth of an internet that protected all our rights. Cohn’s pioneering victory in Bernstein led her to become the EFF’s legal director in 2000, and there she found her calling defending digital rights online.

We feel the thrill that Cohn feels reliving those halcyon days of the nascent internet (a joy I shared, remembering my elementary school afternoons using a modem to dial in to America Online). But Cohn, ever the rationalist, also notices the shortcomings of the utopian nerds: “Some of them had serious problems treating women like people,” for example.

Cohn’s opposing counsel often condescended to her because of her gender too. As she defends the rights of computer scientists to develop and distribute the code underlying encryption technology, Cohn soon faces off against U.S. Department of Justice attorneys who give her what she calls the “let me tell you about your case, little girl” treatment. In Privacy’s Defender, Cohn consistently encounters experienced attorneys, almost always men, who make the mistake of seeing her as a diminutive woman in over her head, whose feet don’t reach the ground in a courtroom chair. Cohn invariably wipes the floor with those who underestimate her, so much so that after she eventually becomes the executive director of the EFF, her longtime DOJ opponents express dismay that she chooses to stay on some of her cases: “We were looking forward to not having to tangle with you anymore,” they confess. Cohn knows “they meant it as a compliment…the best compliment that they could ever have given me.”

Perhaps because of her background as an English major, Cohn knows how to make the potentially dull narratives of lawyering sing. Promising a reporter for the San Francisco Chronicle her first comment on a judicial opinion if he faxes her the decision; negotiating against dozens of government and military officials in a conference room filled with “lots of shiny medals and even a couple of epaulets”; taking an emergency client call about national security letters and needing to exit the freeway to settle her breathing—these moments, as much as any oral argument, fill Cohn’s days.

Somewhat surprisingly, however, while Privacy’s Defender colorfully captures the victories and challenges of public interest litigation, the intricacies of government surveillance and privacy violations remain dry, even for an experienced legal reader. The EFF’s challenges to warrantless wiretapping, for instance, run up against countless abstruse legal obstacles, including sovereign immunity, state secrets, retroactive immunity, and non-concrete injuries. At one point, describing the latest twist in an EFF case, Cohn outlines her objectives: “We wanted to convince the court that the government tapping into the Internet backbone and making copies of all the traffic is a digital version of a general warrant. We prepared a motion for partial summary judgment on whether the Upstream collection violated the Fourth Amendment.” You may need a law degree and high grades in classes dealing with criminal procedure and federal courts to understand those nuances. The EFF has historically focused on litigation against the government, and so Cohn does not explore the political economy of the current internet, in which massive tech companies control so much of our individual lives (and facilitate, one step removed, government surveillance).

Still, Cohn’s singular focus remains inspiring for her commitment to her values, even though some cases don’t go the way she and her clients hope. Cohn knows that the path toward progress doesn’t lead in a straight line, and after decades of innovative lawyering and leadership, she also knows better than to close Privacy’s Defender with an artificial victory. She instead ends her memoir with a flash wedding to a longtime colleague who became something more after her first marriage ended, and with a call to action for readers to join her on the front lines to promote justice. In this moment of national crisis, even the most beleaguered citizens will find her final exhortation inspiring: “Whether you know your place in the fight for a better world or, like me, are hoping that your place finds you, there’s plenty of room at the barricades.” We’re all lucky that Cohn found her place, protecting our rights on the internet as the internet became the world.•