Privacy's Defenders: No Privacy Without Encryption

Cindy Cohen (0:02)

This is Privacy's Defenders, a podcast about the people who fought to secure your digital civil liberties since 1990, long before most people even knew about the Internet. I'm Cindy Cohen, and I had the honor of serving as the executive director and the legal director of the Electronic Frontier Foundation for over 26 years.

Today's episode is all about the fight for encryption. We're digging into EFF's seminal legal case against the federal government in the 1990s, called the Bernstein Case. This is how I got my start with EFF, as a young pro bono lawyer going up against the federal government.

It's a true joy and a lot of fun to do this case and have a chance to be on the cutting edge of this technology and hopefully we'll get it freed so that we don't have the government to worry about anymore. That's what I sounded like 30 years ago, and boy was I young. I wish you could see the old Court TV video that we dug up for this podcast. I look like a child dressed up in a suit that someone put lipstick on, and I had a lot of optimism. But I'm digressing. The outcome of this case had a huge impact on cementing rights to digital free speech. It also laid the groundwork for the digital security protections we all rely on today.

Encryption is what makes messaging apps like Signal and WhatsApp private. It's how you can be sure that you're actually on your bank's website when you think you are. And it's also how you don't lose all of your data when you lose your phone. This is the story about how we freed the technology that makes all of that plus much, much more possible.

Remember John Gilmore from the first episode? He's one of the founders of EFF. So it was 1993, and John called me to talk about a grad student at UC Berkeley named Dan Bernstein. I was pacing around my living room as I listened to him in that slow, gentle voice of his. He said that the grad student wrote a computer program and wanted to publish it on the Internet, and that the government had told him that if he did so, he'd go to jail as an arm stealer. So I asked the obvious question, you know, what does it do? Does it blow things up? And John said, no, it keeps things secret. To me, this sounded like a First Amendment problem. John agreed and asked me if I'd take the case, and I said yes.

Soon after, John and I met for breakfast, a booth, eggs, hash browns, and my yellow pad. When I sat down with John for this podcast, I asked him about that meeting. Do you remember, I talk about us going to the pork store cafe, which isn't very far from where we are here now, and sitting down and you explaining encryption to me. I don't know if you remember that breakfast, but I remember it very well.

John Gilmore (3:01)

No, I did spend a fair bit of time in the pork store.

SPEAKER_3 (3:05)

See, it was just another day at the pork store for you.

Cindy Cohen (3:07)

And for me, it opened my eyes to encryption and science and the Internet in ways that I joke that everything I've done for the last 30 years has kind of grown out of that breakfast. Why did you call me?

John Gilmore (3:24)

I had met you socially through a mutual friend who was involved in the free software movement. And I liked you. And you had also talked about working on nonprofit causes. You were representing the unrepresented peoples and nations who were trying to get representation in the UN.

And you liked technologists. And we were always at EFF looking for free lawyering from competent people. So yeah, I thought you might care. And it turns out you did.

Cindy Cohen (4:00)

Before we get into the specific case, I need to tell you about the crypto wars. Now, I'm not talking about cryptocurrencies like Bitcoin, although those use cryptography too. This story comes before that. The crypto wars of the 1990s were the fights to free up the science, study, and publication of the tools that let us have secure communications. I know we touched on this a bit in the first episode, but let's go a little deeper.

Cryptography has a long history, especially as a way to protect messages during wartime. But it has always also been a scientific endeavor too.

SPEAKER_4 (4:42)

The army has designed its cryptographic systems to maintain secrecy in the transmission of military information as it flows through our network of communications.