Learn. Share. Evolve…

0:00:03 If the police showed up at your front door and said, Guy, you know, we’re really worried
0:00:06 there’s a lot of break-ins in the neighborhood. So what we want you to do is to leave your back
0:00:11 door open so that if the burglars break in, we can catch them easily because we don’t want to
0:00:15 have to bound down your front door in order to do it. Like you’d look at them and tell them they
0:00:20 were crazy. But when that’s happening in the context of digital devices, where it’s a little
0:00:26 more abstract and they use language to obscure what they’re doing, like this gets put forward
0:00:31 as if it’s, oh, law enforcement absolutely needs this. It’s crazy. And it’s bad for all of us.
0:00:41 Good morning, everyone. It’s Guy Kawasaki. This is the Remarkable People podcast. And we’re on this
0:00:46 mission to make you remarkable. So we go all over the world looking for remarkable people. And we
0:00:52 found one really close to us in San Francisco, California. Her name is Cindy Cohn, and she’s
0:01:00 the executive director of the Electronic Frontier Foundation. Wow. And in my humble opinion, that’s
0:01:08 probably the leading defender of civil liberties in the digital world. She has led this great case of
0:01:15 Bernstein versus Department of Justice, which established that software programming is protected
0:01:22 speech under the First Amendment. And the National Law Journal named her one of 100 most influential
0:01:29 lawyers in America. And I love this quote about Cindy, man. I hope somebody says something like this about
0:01:38 me someday. The quote is, if Big Brother is watching, he better watch out for Cindy Cohn. Oh, my God.
0:01:44 I got to go back in your history. I noticed something doing research about you. So you got
0:01:53 your law degree in 1989 or 1990, right? Yes. And then in a mere four years, you were lead counsel for
0:02:00 Bernstein versus Department of Justice. How did you get to that position in a mere four years?
0:02:07 Well, you know, I kind of fell into it, to be honest. You got to remember, 1989, 1990 to 1994,
0:02:14 there was no World Wide Web. Technology was being done mainly by people who had high technical skills
0:02:20 out of universities and research institutions. And I happened to meet some of them. And one of them was
0:02:26 EFF’s founder, John Gilmore. And I literally met him at a party in Haight-Ashbury. And we became
0:02:32 friends. And for a while, I dated one of his friends. And he was putting EFF together, the
0:02:38 Electronic Frontier Foundation. A couple years later, he called me up. And he said, do you know
0:02:44 how to do a lawsuit? And I just a couple years out of law school, really not the right person for this
0:02:49 said, sure, I know how to do a lawsuit. He said, good, because we’ve got this guy and he wrote a
0:02:55 computer program. And he wants to publish it on the internet. And he’s been told that if he does,
0:03:00 he could go to jail as an arms dealer. And I said, what does it do? Does it blow things up?
0:03:06 And he said, no, it keeps things secret. And I said, that sounds like a problem and a First Amendment
0:03:12 problem at that. And he said, I think so too. Will you take the case? And I said, yes. I had never been
0:03:17 online. I didn’t really know very much about what these guys were doing. They were my friends. But
0:03:23 I wasn’t even, as you pointed out, I’m kind of a baby lawyer, right? I’d never done a constitutional case
0:03:31 of that magnitude. But I got lucky. And between John and some of the other early internet people,
0:03:37 and then very kind people like cryptographers, computer science professors, Hal Abelson at MIT,
0:03:44 and a bunch of others, they’ve actually taught me enough about how the internet works, how coding works,
0:03:50 and how cryptography works, that we were able to mount this challenge and do so successfully. But to me,
0:03:55 I just was in the right place at the right time and had the good fortune to think my friends would
0:04:00 think I was cool if I did this lawsuit. And then the patience and support of a lot of people to be
0:04:05 able to sit at the, I always call it driving the big truck, right? To be able to sit in the driver’s
0:04:09 seat of this big truck that we drove through the government’s cryptography regulations.
0:04:17 So Cindy, are you basically saying to me that in one of the most pivotal cases in intellectual
0:04:20 property, you are faking it until you make it?
0:04:26 Totally. Absolutely. Now, I had the good sense and the luck to have a lot of people around me and to be
0:04:31 able to pull in people. By the time we got deep enough in the case, we had a guy named Bob Corden
0:04:37 Revere join our case. He’d already argued a First Amendment case in the Supreme Court. And he saw what
0:04:42 we were doing and came in and was like, let me help ground you in this kind of long history of the
0:04:48 Constitution. It’s more like we were kind of this rolling tumbleweed that started with just me. But
0:04:54 as we went along, we picked up people with expertise and support so that by the time I was standing in
0:04:59 front of the Ninth Circuit Court of Appeal arguing this case, I was standing on the shoulders of lots
0:05:04 and lots of giants who had thrown in to help us. But yeah, the very start of it was quite literally,
0:05:07 I thought my friend John would think I was cool if I said yes.
0:05:13 Wow. Listen, when I saw that four years after your law degree, you were leading this case,
0:05:20 I did a search on ChatGPT and I asked for examples of lawyers who had huge cases early in their careers.
0:05:29 Wow. And it came up with this list of Neil Katyal, Gloria Allred, Sherilyn Eiffel, Preet Bharara,
0:05:35 whatever. Yeah, very famous lawyer, very good lawyer.
0:05:41 Yeah. And I looked at that list and you were faster than all of them. So I said, oh my God,
0:05:45 Cindy is the Caitlin Clark of civil liberties. My God.
0:05:52 Oh, as an Iowan, you could give me no higher compliment than comparing me to Caitlin Clark.
0:05:53 Yeah. She’s from my home state.
0:06:01 And Cindy, I will confess to you that I checked to see if you related to Roy Cohn to see if there
0:06:07 was any nepotism involved, but there is not. No, no, no. I don’t want to be related to him,
0:06:12 but yeah, my family doesn’t come from that. Neither of my parents went to college and I was lucky enough
0:06:16 to get to go. I would not brag about being related to Roy Cohn.
0:06:21 No, I do not want to be related to him, but I did not come from highly educated, lawyered up family.
0:06:26 While we’re on the subject of Bernstein versus Department of Justice, if the Department of
0:06:30 Justice had prevailed, what would be different today?
0:06:35 I think that what would be different today is that we’d have even less security online than we do
0:06:41 now. Now we still have a lot to do. I don’t claim that this is an ongoing fight and the attacks on
0:06:47 encryption keep coming. The UK is horrible right now. Australia passed a bad law, but we have signal.
0:06:54 We have HTTPS, right? The ability to go from your browser to a website without that information being
0:07:01 in the clear so you can access information without it being immediately tracked. We have basic security,
0:07:05 right? When you turn off your phone, it’s encrypted. So if you lose your phone, you don’t lose all your
0:07:11 data or access to all your data. That’s because Apple put encryption into the actual device so that
0:07:16 your data is encrypted. When you turn the device off, the same thing’s true for most computers and
0:07:24 phones now. Encryption is really baked into so many things we do. And I think it would be not baked
0:07:28 into nearly as many. I think the government would have ultimately had to let us have some security
0:07:35 online, but it wouldn’t have been nearly as pervasive and we wouldn’t be able to continue to
0:07:41 deploy it without government approval. And parts of governments really understand the need for strong
0:07:46 security. I would say NIST and some of the other parts of government. But when you get over on the
0:07:52 law enforcement side, they’re really, really hostile to it. And we’ve had an upper hand in that fight since
0:07:59 the 90s because it got taken off the munitions list and it wasn’t regulated. So we could go ahead and
0:08:05 innovate first and not have to go to the government on bended knee and beg for permission. And I think
0:08:10 that’s benefited all of us in terms of even having the security we have now online.
0:08:17 Now, when you refer to the United Kingdom just now, is that the request they’re making of Apple so that
0:08:21 there’s a backdoor to the encrypted iCloud files?
0:08:27 Yes. It’s hard because the UK has even more secrecy around these things than we have in the US. So we
0:08:33 don’t know exactly what’s going on. What we know is that Apple offered something, I think it’s called ADP,
0:08:38 Advanced Data Protection, or it might be APT. I might have that wrong. But basically, you could turn on a
0:08:43 switch and have advanced protection. And that would mean that your iCloud backups were encrypted. Now,
0:08:48 we think that should be the default and not a switch you have to turn on. But that’s okay. At least they
0:08:52 offered it. And that’s really important for human rights defenders, for journalists, for people who find
0:09:01 themselves targeted for espionage as well as by governments. And we know that the UK government has
0:09:07 demanded that anybody who provides you with a service or a device have access to the plain text of
0:09:12 everything you do on your device. And this is the way they talk about they don’t say we’re going to ban
0:09:15 encryption. They always say, Oh, we love encryption. We’re not banning it. But we’re just going to make
0:09:20 sure that the people who provide you with services and devices always have access to the plain text. And
0:09:24 there’s no way to read that as anything other than denying you encryption, right? Real encryption.
0:09:30 So we know that the UK government provided something to Apple, we think it’s that they had to provide
0:09:36 access to the plain text, and that Apple reengineer the device so that they could always have access to
0:09:40 the plain text. And we know that what Apple did in response is say, Well, we’re just not going to let
0:09:46 anybody turn on this extra protection in the UK, because I think they didn’t want to have to downgrade
0:09:52 it. It’s pretty hard to downgrade it just for UK people. And of course, if they downgrade it for
0:09:57 people in the UK, that’s anybody who’s talking to anybody in the UK. So that affects all of us,
0:10:03 or most of us. So we think that’s what’s going on. We haven’t seen the actual documents yet. But I
0:10:08 think it’s a safe bet. That’s what’s going on with Apple. And I really appreciate Apple because
0:10:12 they’ve been pretty public about it as public as they can be. We don’t know what kind of orders have
0:10:17 been issued to the other companies who have been very quiet. But I think it’s highly unlikely that
0:10:23 the UK government just picked Apple. They’re not even the biggest operating system. The Android is
0:10:28 bigger when you go global. So I suspect that something similar could be going on to Android
0:10:34 and other devices that would that is not as visible to us. Again, I don’t know. It’s all secret. But I
0:10:37 think in time, we’re going to figure it out. And it’s problematic. People should be rising up like
0:10:43 we need strong security and privacy. And it’s not just because of law enforcement access. If the police
0:10:47 showed up at your front door and said, guy, you know, we’re really worried. There’s a lot of break-ins
0:10:51 in the neighborhood. So what we want you to do is to leave your back door open so that if the burglars
0:10:55 break in, we can catch them easily because we don’t want to have to bound down your front door in order
0:11:01 to do it. Like you’d look at them and tell them they were crazy. But when that’s happening in the context
0:11:06 of digital devices, where it’s a little more abstract, and they use language to obscure what
0:11:12 they’re doing, like this gets put forward as if it’s, oh, law enforcement absolutely needs this. It’s
0:11:21 crazy. And it’s bad for all of us. Wow. So if Apple were to agree with the UK, then logically,
0:11:26 the FBI in America would say, well, you did it for the UK, you should do it for us. And then
0:11:31 none of us have encryption anymore. That’s correct. And even if you think the UK,
0:11:36 they’re a Western democracy, they have rule of law, and they have due process. It’s not just the US
0:11:41 that’s going to be following. It’s all the countries of the world, right? You’re going to have Nigeria,
0:11:46 which has a tremendous problem with corruption in their government and attacking political opponents.
0:11:51 All of the countries in the world are going to say, well, you did it for the UK, you should do it for
0:11:56 us. And I think it’s terrible in the United States. It gets even scarier as you go around the world.
0:12:00 Okay. So can we back up for a second? Sorry, I scared the pants off you, didn’t I?
0:12:07 No, no, no. I mean, it is a time to be scared. So could you, we just back up a little bit and could
0:12:10 you explain for us what the EFF actually does?
0:12:16 Yep. The Electronic Frontier Foundation is the oldest and the biggest online digital rights
0:12:22 organization. We’re based in San Francisco. We’re now 125 people strong. And essentially,
0:12:27 we work to make sure that when you go online, your rights go with you. So we are civil liberties
0:12:35 organization. We’re focused on law and rights as they relate to digital technologies. And we really
0:12:40 center ourselves on the users of technology. So making sure that the users of technologies have a
0:12:46 voice and are protected as we’re moving forward. Now, our tools are, we’re a lot of lawyers. I think
0:12:50 that’s still my biggest team. We do impact litigation. So we take cases like my Bernstein
0:12:56 case to try to set the law, especially constitutional law, because that’s the province of the courts in
0:13:02 the right place to protect users. But we also have an activism team. And we have a tech team. We call
0:13:08 them the pit crew, the public interest technology team. And we build some technologies. So we build a
0:13:14 Firefox, we build a plugin for Firefox and Chrome called Privacy Badger that blocks tracking cookies,
0:13:19 those cookies that follow you all around the web and blocks other kinds of tracking. We build a thing
0:13:25 called Certbot, which is part of the process for certificate authorities for making sure that when
0:13:32 you go to visit a website, your traffic to that website is not trackable because it’s encrypted.
0:13:39 So we build technologies, we bring lawsuits, we do activism, all of these kind of towards this goal
0:13:43 of trying to make sure that your rights are respected when you’re using technologies.
0:13:46 Steve McLaughlin: And how do you pay for all of this?
0:13:52 Speaker 1: We are member supported. We get no government money. We get a little bit of foundation
0:13:56 money. We get a little bit of corporate money, but not from the big guys. That often comes with too
0:14:03 many strings about our advocacy. So companies that are a little smaller and that might be running a VPN
0:14:08 service or a privacy service, we get some support from them, but mainly it’s individuals. Over half
0:14:14 of our money comes from individuals. And a huge chunk of that come from people who are ordinary members,
0:14:20 who give us 60 bucks or a hundred bucks or a thousand bucks and get t-shirts and hats and stuff. I think
0:14:26 EFF has been a marker for people that they love tech, but they also love rights that they’re trying
0:14:31 not to use tech to crunch on people. And we have a pretty good membership inside the big tech companies,
0:14:36 the Facebooks and the Googles and Alphabets and other companies, even inside the government,
0:14:41 we have a lot of members because I think it’s a way for people to show that they’re trying to be in
0:14:46 this for the right reasons and that they really want to build and support tools that support people
0:14:50 rather than oppress people. We’re member supported and always have been.
0:14:57 So member supported is like NPR where you’re a member of KQED or something like that.
0:15:03 Correct. Only we have much cooler t-shirts, hats and stickers, but yeah, it’s a lot like that. I kind
0:15:07 of joke sometimes at EFF, we work for tips, right? We’re going to go out there and do what we’re going
0:15:11 to do. And if people think that what we’re doing is important and it’s important to have kind of a
0:15:16 foothold and a voice out there to counterbalance the governmental voices or the corporate voices that
0:15:22 might, you know, be in shittifying your tools or not really on your side. We’re one of those people
0:15:26 who show up and try to fight for it. And there’s a lot of digital rights groups now. And I really
0:15:31 love when I got into this, there was just us. And now there is a whole constellation of people doing
0:15:37 really good work. I think what makes us different is that we do have this tech team. We’re really grounded
0:15:44 in how the tech actually works. We don’t fly off and pretend or tell the scary stories about how tech’s
0:15:50 going to eat your children or any of those things. We’re really trying to stay very grounded in how
0:15:55 things actually work. And we’ve developed a reputation in the courts and in Congress and in various
0:15:59 administrations going all the way back to the nineties as the people who show up and will tell
0:16:04 you the truth about how technology works and how it doesn’t work.
0:16:11 So this is a dumb question. And I know the answer already, but I got to ask it just to make sure.
0:16:19 So theoretically, if Elon or Mark calls you up and says, we want to give you a $10 million donation,
0:16:25 the answer is it’s probably no, it’s probably no. And this has actually happened. Some of those people,
0:16:31 not ones you’ve made, but some of those companies have offered us a lot of money. And historically,
0:16:35 in the past, there was a time when we were more aligned with them, especially the early days with
0:16:40 Google. We were pretty aligned with them because they were trying to free things up, especially in
0:16:45 some of the copyright fights that we’ve done and IP fights where they were really trying to give users
0:16:50 access to information and stuff. Those days are kind of gone. There is a different leadership and
0:16:55 they’re much bigger and they have a different viewpoint. Right now, if one of those companies showed up and
0:17:00 said, let us shower you with money, I would take the call. But if there were any strings attached,
0:17:04 if there was anything that made it look like it, and honestly, for some of them, I think at this point,
0:17:09 I probably would just say no, because there’s no way it wouldn’t be perceived that way.
0:17:14 The answer is no. I really want our support to be who the people we are, who we’re standing up for.
0:17:19 And I’m not in this to stand up for Jeff Bezos. I’m not in this to stand up for Mark Zuckerberg.
0:17:23 I’m in this to stand up for all the people who are, you know, in some ways feel like they’re
0:17:28 hostages to these people. And you can’t really do both, right? You can’t stand up for the people who
0:17:33 are locking you in with a surveillance business model that tracks everything you do and ranks you,
0:17:38 and the people who are being tracked. You kind of have to be on one side or the other. At this point in
0:17:44 time. I’m sad about that. Those companies used to side with their users a lot more. And one of the
0:17:51 sad things that I’ve seen in the 35 years that the organization has been in existence is the sliding
0:17:59 away from those kind of tech and user roots towards a more adversarial position towards their users.
0:18:05 I would use a stronger verb than sliding away. But yeah, we agree.
0:18:10 I’m trying to be a little kind, but yeah, no. And I think it’s problematic, right? Because I worry.
0:18:15 It used to be people came to Silicon Valley because they had a cool idea that they really wanted to
0:18:19 make happen. I know he was a difficult guy, but even Steve Jobs, like he was a problem solver,
0:18:23 right? He was trying to solve interesting problems that would help people. And again,
0:18:27 didn’t know the man. I don’t claim to know everything. Now it just seems like it’s like,
0:18:32 how do we exploit people’s data to make as much money as possible? And that’s a very different
0:18:37 framing than what I lived through in the 90s and the 2000s.
0:18:42 From the outside looking in, because I’m not inside the tech bro community,
0:18:46 I think that all they care about is long-term capital gains and crypto.
0:18:52 Yeah. And it’s about money for them and power for them. And it’s not really about giving us
0:18:56 anything better anymore. It’s more about exploiting us so that they can maintain their positions.
0:19:02 And it’s so disheartening, right? Because again, I was in the Silicon Valley in the 90s and the 2000s,
0:19:08 and I know there was another vision. I know that there was another thing that a lot of people were
0:19:14 doing. And the good news is, there are people doing that now. We’re seeing with decentralization,
0:19:20 with signal exists, it’s strong, it’s powerful. It’s so powerful that the people in the federal
0:19:24 government use it when they shouldn’t. There is, it’s just the rest of the internet is still there.
0:19:31 It’s just been completely overshadowed and underfunded because of the rise of these tech giants and their
0:19:38 surveillance capitalism business model. But if you peel it back, you can still find people with those
0:19:43 ideals and those visions. And if you look in Macedon in the decentralization space or Wikipedia
0:19:50 is still here, it still exists. It’s under threat right now. But those places still exist. Just all the
0:19:55 air gets sucked out of the room by the tech giants. And some of what we try to do is to point out that the
0:20:00 the internet isn’t Facebook, there’s a whole set of other things that aren’t in the tech giants. And if
0:20:06 we turn our attention towards them, there are people there who could use a little support and coding and
0:20:09 lifting up to build a better version of our world.
0:20:30 Of all these things that are going on right now, what scares you the most?
0:20:36 : I think it’s hard to be alive in America right now and not be worried about authoritarianism. I
0:20:43 think that’s the scariest thing. The scariest thing is we’re seeing the takeover of both our business
0:20:50 side and our civil liberties side by an idea that one guy gets to make all the rules for all of us and
0:20:55 that there’s no questioning that, this kind of king-like mentality. I think unless we fix that,
0:21:01 we can’t even get at most of the other problems. And we’re seeing it in kind of rule by executive
0:21:05 order. Executive orders have always existed, but they weren’t the law of the land. And they shouldn’t
0:21:11 be, right? We’re supposed to have checks and balances and due process. And for me, as a civil liberties
0:21:17 lawyer, these are our tools, right? Like we need tools to go into court or to have a Congress that’s
0:21:23 actually willing to pass a law that protects us as opposed to just doing the bidding of one guy.
0:21:28 I think until we get past the rule of King’s mentality, it’s hard to deal with any of the
0:21:33 other problems. And that to me is the scariest thing that’s going on right now is watching these
0:21:39 institutions that we need in order to protect us not step up to the moment and do it.
0:21:45 : You mentioned Signal several times now, so obviously you must use Signal. But
0:21:51 I have some really tactical questions to ask you about Signal from someone who is in the middle of
0:21:51 this, okay?
0:21:52 : Yeah.
0:21:59 : So first of all, what time period is your default disappearing messages set to?
0:22:04 : It depends on the conversation. I try to set it for a week, but if it’s something where we’re
0:22:09 planning something over a longer time, I will sometimes keep it longer than that. But I have
0:22:14 occasionally used Signal to develop an expert witness in a case or something like that. And then I keep them
0:22:19 longer because I want to be able to go back and make sure that my memory isn’t so great. And different
0:22:20 things have different needs.
0:22:29 : So what happens if a Department of Justice lawyer says to you that you have signals set to automatic
0:22:35 disappearing messages and that’s spoilage, you are destroying evidence?
0:22:42 : It depends on the situation. If something isn’t privileged and is evidence in a case, then you have to turn it off,
0:22:48 just like anything else. If you’ve got auto deletion of your email or anything else. The law requires that if
0:22:54 something is at issue in a case, then you can’t get rid of it. But I don’t think you should live your life as
0:22:59 if you’re always under a litigation hold because I think that can end up being its own problem on its own side.
0:23:04 : So certainly if something is looking like it’s going to be evidence in a case that’s actually
0:23:09 pending or threatened, then yes, you should put a litigation hold in place and you should not get
0:23:14 rid of it. But I think that it’s still better in the rest of your life, which shouldn’t be all your life,
0:23:20 to only keep things for as long as you need them and get rid of them. And this is our advice to companies
0:23:25 too, right? People shouldn’t be just gathering up data and keeping it in case it might be helpful
0:23:31 someday. That way lies a lot of problems. I used to joke at that EFF that we had become an anti-logging
0:23:36 society, not in terms of trees, but in terms of your logs, that you should really think hard about
0:23:40 what you’re logging and why, because it can end up being a vector. And as people who’ve been through
0:23:46 litigation know, it’s really, really expensive if you’ve kept everything all the time and you have
0:23:51 to turn it over in litigation, whether it’s even remotely useful or not, because sorting through
0:23:57 what might be relevant to a litigation hold and what isn’t is its own huge burden. So you may not
0:24:02 be saving yourself money or hassle or time in the long run by defaulting to keeping everything.
0:24:08 : I don’t want you to think I’m obsessed with the topic of spoilage, but I have one more
0:24:10 spoilage question. : Did something happen to you Guy? What happened?
0:24:20 : If you set your default for every new chat to disappear after a week, can you not make a case
0:24:27 that as a course of routine use of signal, I make everything disappear. I didn’t do it to destroy
0:24:33 evidence in anticipation of litigation. : So this is not legal advice. I am not your lawyer,
0:24:39 but once you have a clear indication that litigation is coming, whether that’s because you’ve gotten a
0:24:45 demand letter or you’re in negotiations with someone, somebody showed up, or you reasonably
0:24:49 know it’s coming. And that can be a little vague at times, but the courts will generally think very
0:24:53 specifically. If you’re going back and forth saying, we know we’re going to get sued for this,
0:24:57 but I think we can defend it. That’s the time you ought to turn your little light on. And certainly,
0:25:03 once you get a demand letter, then a good lawyer will send out what’s called a litigation hold
0:25:08 letter to you, your entire organization, and say anything that’s about this dispute,
0:25:15 we need to stop getting rid of it and we need to start keeping it. So yes, putting in an automatic
0:25:20 thing that gets rid of communications and stuff that you don’t need is useful and it can help protect
0:25:27 you that it is your automatic thing. But you can’t then pretend like you don’t know litigation is
0:25:31 coming. Once you know litigation is coming, you need to change course for stuff that’s related to that.
0:25:35 : Okay. Two more tactical questions. : Okay.
0:25:42 : Because, you know, this is a rare opportunity to speak to an expert like this. I know that you must
0:25:49 probably not use biometric authentication for your phone, not your fingerprint or your face, right?
0:25:51 : No, I do. I do. : You do?
0:25:59 : Yeah. : Okay. So explain that to me because it seems to me that, not that I am a lawyer, but it seems
0:26:06 to me that under the fifth amendment, if they cannot compel you to give them their passcode, but they can
0:26:14 compel your fingerprint or face. So isn’t it better to use a passcode instead of your face or fingerprint?
0:26:19 : I think if you’re at risk of being arrested, then that’s important. I think if you’re going
0:26:24 through a border, if you may be going to a protest, if you’re engaged in something where you think law
0:26:29 enforcement is likely to stop you, then you’re right. You should turn off the biometrics and you’re exactly
0:26:35 right. The fifth amendment for what I think are some pretty dumb reasons, actually, distinguishes between
0:26:40 putting in a password or showing your face for purposes of the fifth amendment. And honestly,
0:26:45 I think that whole case law is pretty stupid, right? I think that the constitution should reflect how
0:26:51 people live and not have this, you know, did it require the contents of your mind or not analysis,
0:26:56 but whatever, that’s where we are with the fifth amendment right now. So yes, if you think something’s
0:27:01 coming, then that’s a really good idea. But you know, the rest of your life, people can’t follow
0:27:06 ridiculous instructions. I want technology that makes my life better, that makes it easier.
0:27:11 And so does everybody else. So what security people call this is threat modeling, right? You need to
0:27:15 figure out who you are, what are you doing in the world and what’s your threat model and make your
0:27:23 security based on that. EFF has something called surveillance self-defense, ssd.eff.org or
0:27:28 So look for surveillance self-defense. And we have playlists based on who you are and what you’re
0:27:33 thinking about. So if you’re a journalist or you’re a human rights defender, you’re attending a protest,
0:27:39 you’re helping people who might be seeking abortions in America today, you have to worry about that,
0:27:44 then you might have a different set of things you do to protect yourself than people who aren’t at risk.
0:27:50 And so I think everybody has to do their own analysis. For me, most of the time walking
0:27:57 around, I’m pretty unlikely to be picked up by the cops in the street and asked to have my phone
0:28:01 seized. If you’re really worried, you can do that. And there are times and places where I make sure my
0:28:06 phone is off or that I’ve turned those biometrics off. There are other times and places in my life where
0:28:12 I just want to be able to open it up and look at maps and make sure I’m not lost. And I really don’t
0:28:16 want to have to fumble with putting in a password. So everybody has to make those decisions for
0:28:20 themselves. And we have tools to help people make them intelligently.
0:28:31 But Cindy, okay, so what I find almost incredulous is you are the executive director of EFF and you’re
0:28:38 saying that you feel pretty comfortable walking around with your face or fingerprint opening up your phone.
0:28:43 As the executive director of the EFF, you’re saying that I am astounded.
0:28:49 I think that everybody has to make these decisions for themselves. I love technology,
0:28:53 right? I mean, look, if I was the most paranoid person, I wouldn’t be carrying around a smartphone.
0:28:57 If you’re going to take this to the end of what makes you absolutely the safest
0:29:02 in every situation, I don’t know why you would carry around a beacon that’s tracking you all the
0:29:06 time in the first place. But we all have to make these trade-offs. And I would not say that my trade-offs
0:29:11 are the ones that other people should make. I have this interesting position where, you know,
0:29:16 right now we’re suing Doge. EFF is suing Doge under the Privacy Act for access to the Office of Personnel
0:29:22 Management records. Now, in some ways that may make me worried that at some point the Trump administration
0:29:27 doesn’t think lawyers are off limits for purposes of targeting them. On the other hand, there’s a
0:29:33 federal judge who knows that I’m counsel in the case. It’s not a good look for the government to be
0:29:40 attacking, harassing, and tossing in jail the people who are suing over the Privacy Act in the thing.
0:29:47 And I have always felt, and this is just my threat model, that being high profile and being somebody
0:29:53 who’s laboring in the courts to try to bring justice makes me probably not the first people
0:29:57 they’re going to go after if they go after. Now, things are changing fast in this country,
0:30:04 and that might not be the right threat model today as it was 10 years ago or even 20 when we were doing
0:30:08 the Bernstein case. And believe me, the NSA and the national security people were not very psyched
0:30:12 about us attacking cryptography. I did not for a minute think that they were going to come after
0:30:17 me personally. That was a different time and it was off limits. And I think that it would have
0:30:22 completely backfired on them in the courts. I still think it would backfire on them in the courts
0:30:28 if they did this kind of direct attack. Now, other people should make their own evaluations. And again,
0:30:34 I wouldn’t say that this is my position everywhere all the time, but it is my position when I’m walking
0:30:39 out my front door and going to the grocery store or all the other things that I do. The other piece
0:30:43 of this, and I think it’s really important because you’re asking me personal questions about my own
0:30:49 decision-making, about my own security, and I think that’s useful for people. But we have to fix these
0:30:55 systems. This isn’t a set of individual decisions that anyone should have to make. We need to have a
0:31:00 comprehensive privacy law. We need to have strong encryption built into our tools so that we don’t
0:31:04 have to mess with settings or turn things off in order to have strong encryption. We need to have
0:31:10 laws that protect our ability to have security and privacy and make it something that the government
0:31:16 just can’t do to do these kinds of things. So I think on the one hand, individual choices are really
0:31:21 important. And on the other hand, sometimes in privacy specifically, people get caught up in their
0:31:26 individual decisions as if it’s their responsibility to make sure that they’re as protected as possible.
0:31:30 And I think that makes no more sense than, you know, if you buy a car, you expect it to have
0:31:36 brakes and that those brakes work. And nobody expects you to go out and search for, find and install your
0:31:42 own brakes. I think basic security and privacy is like brakes on a car and all of our devices and tools
0:31:49 and laws need to have them baked in to protect us rather than the responsibility being foisted on us
0:31:56 to find all these tools, pick the right ones and use them in the right way. That’s broken. And a lot
0:32:01 of what we do at EFF is try to give you individual advice about how to do what you’re doing. But the vast
0:32:07 majority of what we do is to try to set the laws and the policies and pressure the companies to make this
0:32:15 not your responsibility anymore. Cindy, knock me over with a feather. If you want to use the brake analogy,
0:32:24 yes, a Porsche may break from 60 to zero in 125 feet and a Ford 150 may take 250 feet. You need to know that
0:32:30 not all brakes are created equal and you still put on a seat belt, right? Yeah, absolutely. All of those
0:32:35 things are important. You don’t have zero responsibility. We have a regulatory system
0:32:40 that says brakes must be within these normal tolerances, right? Same thing. We need a privacy
0:32:45 act. The privacy act isn’t going to say, it’s not going to be a one size fits all thing. It shouldn’t
0:32:49 be. That would hurt innovation, but it should set the boundaries. You can’t put something out on the
0:32:56 marketplace that spies so dramatically on your customers that they can’t possibly turn it off.
0:33:02 They can’t possibly control it. They have no agency about that. And I think of it again, like the way
0:33:08 a good regulation will set the tolerances of what can go out there. So yeah, you might have much
0:33:15 better brakes on a car that has a much bigger engine, but there is an outer boundary, right? You can’t have
0:33:22 no brakes on a car and regulation does some of that. Consumers do some of that by the consumer reports or
0:33:26 other things telling people, watch out, this car doesn’t have very good brakes. You got to have a
0:33:33 mix of markets and smart regulation. I’m not a big fan of regulation. I think it can be very bad and it
0:33:40 can help prop up oligarchies and monopolies. But smart regulation, my classic example of this is when
0:33:45 you know, there’s a decision by the FCC that the phone companies were saying you could only plug their
0:33:51 phones into the wall. And the FCC said, no, you have to let people plug modems into the wall. And
0:33:56 that’s how we got the home internet revolution. That’s smart regulation, right? That’s regulation
0:34:03 that is not only creating the outer tolerances of what we can accept, but also making sure that there’s
0:34:06 a competitive and other options for people within that space.
0:34:14 Are you trying to convince your friends and family to use Signal instead of WhatsApp or you think it’s
0:34:16 irrelevant for most people?
0:34:23 I think WhatsApp uses the same security, it’s the same encryption under the hood as Signal. So I don’t
0:34:28 think WhatsApp is a bad choice in terms of end-to-end encryption. What I don’t like about WhatsApp is
0:34:33 because it’s a Facebook property, they know who you’re talking to, even if they don’t know what you’re
0:34:38 saying. And so on that measure, Signal is better because Signal is designed not to know who you’re
0:34:44 talking to at the level that WhatsApp is and is trying to monetize. But as a matter of encryption,
0:34:50 WhatsApp is not a bad choice. But Facebook Messenger, for instance, is not end-to-end encrypted. I think
0:34:54 they’re fixing that, but it was not end-to-end encrypted. And let me tell you the consequences of
0:35:01 that. So there’s a woman and her daughter in Nebraska who are both in jail right now. And they’re in jail
0:35:06 because they use Facebook Messenger to talk to each other about the daughter needing an abortion.
0:35:13 And that’s illegal in Nebraska. And as a result of Facebook having the plain text of that communication,
0:35:18 because it was not end-to-end encrypted, and Facebook got a warrant that required them to turn
0:35:23 over the copy of the communications that it has because it’s a centralized system. So Facebook has a copy of
0:35:27 all those communications. Both the mother and the daughter went to jail.
0:35:33 If that same communication had happened over Signal or probably even over WhatsApp,
0:35:38 the mother and daughter wouldn’t be in jail right now because the plain text of that conversation
0:35:43 wouldn’t have been available to law enforcement. Many more people are having to pay attention to that
0:35:48 fact, which might not seem at all when you’re just using these technologies. You’re just using whatever’s
0:35:54 easiest for you. But now that we have a world in which some communications are illegal at a level
0:35:59 that I think was not true before, say, the Dobbs decision and all of these states started passing
0:36:04 things, there’s a whole new community of people who need to understand the difference between the
0:36:09 securities and the securities of their communication techniques than did before. Now, this was always
0:36:14 true for people who are human rights defenders, people who are working with immigrants, people around the
0:36:19 world who come from marginalized backgrounds have known this for a while, and now there’s a whole new
0:36:25 community of people who are starting to wake up to these differences. So, yeah, it’s important that people
0:36:31 move to end-to-end encrypted services, and it’s important to more people now than ever before.
0:36:39 Cindy, I would make the case that WhatsApp, which is end-to-end encrypted, but it doesn’t encrypt the
0:36:45 metadata. And there’s a lot you can figure out from metadata that the mother and the daughter
0:36:50 communicated. At this point, they contacted this abortion service and all that. You don’t know what they
0:36:54 said, but it’s little markers on the trail, right?
0:36:59 Yeah, no, you’re right. And EFF fought the NSA over metadata. One of the things that we learned
0:37:05 is that the Patriot Act had a section in it called 215 that let the government demand everybody’s
0:37:11 telephone records from the telephone companies. And one of the things that we learned and that we learned
0:37:16 in 2006, but then everybody learned in 2013 with Mr. Snowden, is that this was actually happening,
0:37:20 that the phone companies were handing over the metadata of our phone records. And you’re
0:37:25 exactly right, that you can glean a lot from those. The reason I’m a little soft on WhatsApp,
0:37:29 but I think it’s a perfectly reasonable choice not to use them, is that it is
0:37:35 how people around the world really use it at a level. And I’d rather not shame them for the
0:37:40 differences between the two of it, but really kind of encourage them to come away from the things that
0:37:48 are entirely unencrypted or that are fake encrypted. Telegram, as we’ve learned, while it sells itself as
0:37:53 being encrypted, it really isn’t at the level that gives people protection. In the world of secure
0:37:59 messaging, I agree with you that Signal is more secure and a better option. I just want people
0:38:04 to pick something that’s a little more secure, even if they don’t go to the maximum secure. And on that
0:38:10 scale, especially, again, around the world, Signal is still so small compared to the reach of something
0:38:15 like WhatsApp. I don’t want to shame people who are using the one, even as we encourage them to
0:38:21 come to a little more. So that’s more strategy than it is like hardcore security advice. But
0:38:27 it’s certainly better to use Signal, but it’s better to use WhatsApp and stick them with the metadata than
0:38:34 it is to use something that’s completely in the clear. You brought up the Nebraska case, and I am
0:38:42 familiar with the Nebraska case, and it opens up a whole nother can of worms that I never figured, which
0:38:49 is the narrative seems to be that if it wasn’t for Facebook and them using Messenger, they wouldn’t be in
0:38:57 jail. On the other hand, the facts show that she did have an abortion after the period permitted in
0:39:04 Nebraska, and they did try to burn the fetus and all that. So in a sense, they did do what they were charged
0:39:12 with. So it’s not like they were falsely imprisoned, or did I get this wrong? Well, it depends on your view of
0:39:19 the law. I think that this is a law in Nebraska that most people think is tremendously unfair and wrong.
0:39:27 And disconnected from the reality of people in America and women in America. I think that
0:39:32 in a world in which every law is perfect and wonderful and should be celebrated and supported,
0:39:36 you might be able to take the position that they broke the law, so therefore they got what they
0:39:42 deserved and how they got found is irrelevant. I don’t think we live in that world. And I think that
0:39:48 when the law is unjust, making sure that people can still live their lives and have protection and have
0:39:55 security is tremendously important. And we live in a world with a lot of laws that are not just right
0:40:00 now and a lot of things like executive orders and other sorts of things that are just ignoring the
0:40:05 law. They’re just snatching people off the street and sending them to El Salvador. This is one of the
0:40:11 reasons that we need privacy and security is because not all governments are just and not all laws are
0:40:17 just. The other reasons we might need it is just basic human dignity and having the space to be able to live
0:40:23 your life without being tracked all the time. But I would maintain that there’s a lot of people in
0:40:28 America who are very uncomfortable and unhappy with some of these laws. They were not passed
0:40:34 in ways that I think people feel very good about. And I think that giving people the ability to have the
0:40:40 level of privacy and security they need to live their lives and not making a world of perfect enforcement
0:40:46 of every single law regard is how the law has generally been. And that’s to stop things that
0:40:50 I think shock the conscience. And I think in this particular instance, this was a mother and daughter
0:40:55 who I believe were having conversation inside their own home. Traditionally, the Fourth Amendment would
0:41:00 say that what happens inside your home is completely not available to law enforcement, right? That’s why they
0:41:07 need a probable cause warrant to come into your house. But because technology meant that this third party
0:41:14 company had the plain text of the communication, suddenly what happens inside the home between a mother and
0:41:19 daughter is available to law enforcement. So you have to look at how is technology changing
0:41:26 everything? And this is a situation in which the founders of America would never thought that the
0:41:31 government would be able to prosecute you even if you were violating the law based on a mother-daughter
0:41:35 conversation and beside the home. And because of the way technology has happened here, that actually
0:41:42 was able to occur. You have to balance all of these things. It’s not just one thing that changes. And
0:41:48 technology has made changes to the way that we communicate in ways that the Constitution needs to catch up.
0:41:56 Up next on Remarkable People. But we’re going to start to see weaponized takedowns at a level that I
0:42:00 think we haven’t seen before because this law facilitates it. And it creates the incentives for the
0:42:07 companies to take things down if they get a complaint. And again, I don’t think that those complaints are
0:42:11 going to be about non-consensual sexual imagery. They’re going to be about people saying things they don’t like.
0:42:21 Do you want to be more remarkable? One way to do it is to spend three days with the boldest
0:42:27 builders in business. I’m Jeff Berman, host of Masters of Scale, inviting you to join us at this
0:42:33 year’s Masters of Scale Summit, October 7th to 9th in San Francisco. You’ll hear from visionaries like
0:42:40 Waymo’s Takidra Mawakana, Chobani’s Hamdi Ulukaya, celebrity chef David Chang, Patagonia’s Ryan Gellert,
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0:42:55 That’s mastersofscale.com/remarkable. And Guy Kawasaki will be there too.
0:43:01 Become a little more remarkable with each episode of Remarkable People.
0:43:05 It’s found on Apple Podcasts or wherever you listen to your favorite shows.
0:43:10 Welcome back to Remarkable People with Guy Kawasaki.
0:43:20 So it’s obviously 2025 and now we have someone in charge of homeland security who
0:43:27 cannot even define the writ of habeas corpus. So I’m asking you like if somebody says to you or
0:43:35 your family or friends says to you, “I’m not worried. I have nothing to hide.” Is the “nothing to hide”
0:43:41 statement true these days or does everybody have something to hide at this point?
0:43:45 I haven’t done a demographic survey, but I would suggest that most people,
0:43:48 even if they don’t have something to hide, talk to somebody who does.
0:43:55 Do you have somebody in your life whose papers have expired, who’ve overstayed their visa?
0:44:00 Do you have someone in your life who’s a person of color, who’s trans, who’s LGBTQ of any kind,
0:44:06 not just trans? Do you have somebody in your life who’s a person of color who may think that diversity
0:44:11 and equity are important values and have said something about that? The line over who has
0:44:15 something to hide is really changing. And I would argue that by the time you go through all the lists,
0:44:22 just of the things we know, there aren’t very many people who wouldn’t be impacted by this. And again,
0:44:28 this is why security and privacy are so important. I also think they’re important regardless of whether you
0:44:33 individually need them. I think that one of the problems that we have in privacy is people think
0:44:38 about it in individual personal terms. And so they can come to the, “Well, I have nothing to hide”
0:44:44 kind of position. But privacy isn’t just important for each of us. It’s important for all of us.
0:44:48 And that’s an important distinction. Like most people don’t want to stand on a street corner
0:44:53 and shout out what they think ought to happen in this country. But I think all of us understand that
0:44:56 the First Amendment protects us all, even if we don’t want to speak.
0:45:03 The Fourth Amendment and privacy do work the same way. Giving everybody the shelter of privacy means
0:45:06 that even if you don’t personally need it, somebody who you love, somebody who you know,
0:45:12 or somebody who’s going to help change the world for the better does. And I’m going to give you an
0:45:19 example. In my lifetime, being gay in this country was very, very dangerous. Saying that gay people
0:45:24 ought to have the right to marry, they ought to have the equal right to love who they want to love,
0:45:28 that could get you killed. And in fact, it’s still pretty dangerous, right? We’re moving backwards.
0:45:34 But there was a time in which those conversations had to happen in private. This idea that maybe
0:45:38 loving who you want to love as opposed to the traditional heterosexual thing isn’t such a bad
0:45:43 thing. Maybe we should normalize that and make that okay. That was a very dangerous conversation.
0:45:48 Those conversations had to happen in private and in secret. And in my lifetime,
0:45:52 those have gone from conversations that had to happen in private and secret to something where
0:45:59 we’ve really changed the law. We’ve changed a lot of people’s minds about it. We’ve changed attitudes.
0:46:04 And that public part of the conversation couldn’t have happened unless there was a private part of
0:46:08 the conversation. And I think the same is true if you look at most social movements. If you look at
0:46:14 the anti-slavery movement in the United States, like way back, if you look at some of the anti-immigration
0:46:19 sentiments in this country, where we had the Chinese Exclusion Act and other kinds of things,
0:46:24 and we shifted into a world where we thought differently about differences in America,
0:46:28 the public part of those conversations couldn’t have happened without the private part. So it may
0:46:34 not be you. It may not even be the people you love, but it may be the people who are going to help us
0:46:39 make change for the better. And I think we need to stand up for the rights of all of us because this
0:46:44 is what a human right is. This is what a human value is. It’s not something that’s just dependent on you
0:46:48 and your everyday life, although I think most of us have an increasing need in our everyday life for
0:46:54 privacy and security. But these are values that we should stand up for, even if it’s not
0:47:01 right now visible individually to us, that we need them because this is how society self-governs.
0:47:07 This is how we make changes. This is how we have the space to decide that we don’t like the guy
0:47:11 who’s the president right now and we want to vote for someone else. Increasingly in this country,
0:47:16 those conversations can be pretty dangerous for people to start talking. We’re not all the way to
0:47:21 the kind of repression of other systems where they put the opposition candidate and anybody who’s friends
0:47:27 with them in jail. You can see that on our horizon right now. We need to stand up for privacy and
0:47:35 security even if we don’t need it right now because we may need it pretty soon. One of the big activities
0:47:42 of the EFF right now is involved with the Take It Down Act. And I would like if you would please
0:47:49 explain what is that act supposed to do. Yeah, we spend a lot of time with this particular problem
0:47:54 where there’s a harm online that people agree is a harm. In the instance of the Take It Down Act,
0:48:01 it’s non-consensual sexual images. Your ex posts your sex tape online or other kinds of situations in
0:48:08 which sexual imagery of people is posted online without their consent. It’s a real problem. So people will
0:48:15 take a real problem and then they’ll propose a legal solution that is not good. So the Take It Down Act
0:48:21 says that if somebody tells you that you as a platform or a host of a site that you have to
0:48:26 take something down, you have to take it down immediately or you’re liable. And it is not limited
0:48:33 to non-consensual sexual imagery. Even if we could agree what the definition of that is and that can get a
0:48:38 little fuzzy. It just means that people have to take it down if they get a complaint. And the worry
0:48:44 is that those complaints get weaponized. President Trump, his big speech that he gave in January or early
0:48:49 February said he can’t wait to use this law, that we should pass it. He can’t wait to use it. I don’t
0:48:54 think that what President Trump is worried about is non-consensual sexual imagery. I don’t think that’s
0:49:00 what he meant. But there’s a classic example of how a law that is passed for one narrow purpose can be
0:49:07 used to create a censorship regime for far broader speech than just that. This is why we really
0:49:12 oppose it. This law, I don’t think it’s going to help for non-consensual sexual imagery. The problem
0:49:16 for most of that imagery isn’t that the platforms don’t take it down. They take it down pretty fast
0:49:22 all the time. It’s that they can’t keep up because there’s so much of it. So it’s not even responsive to
0:49:27 the problem because I don’t think the problem is that platforms don’t care about this. I mean,
0:49:31 some might, and that’s important, but we didn’t need a federal law for that piece of the problem.
0:49:37 But instead, it opens it up so that there could be a censorship machine from anybody with power
0:49:42 to take down anything they don’t like, or at least a wide, wide range of what they don’t like. And
0:49:45 again, when you’ve got the President of the United States saying he can’t wait to use this power,
0:49:51 it ought to be a pretty good sign that maybe this law is doing something different than the people who
0:49:55 proposed it do. And to the point where at the very end of it, some of the people who
0:50:00 originally proposed the law flipped and said, “This is a bad idea. This isn’t the right thing.” We had
0:50:05 been opposed to it all along because we worried that it could be misused. But by the end, some of the
0:50:09 very people who started proposing, a couple of law professors who were big fans of this and who proposed
0:50:15 it issued blog posts saying, “Don’t support this. This is not what we meant. And this is a bad thing.”
0:50:21 Nonetheless, it passed and it got signed into law. It’s about a year or two before it really gets
0:50:27 implemented. So we won’t see right away, but we’re going to start to see weaponized takedowns at a
0:50:32 level that I think we haven’t seen before because this law facilitates it. And it creates the incentives
0:50:38 for the companies to take things down if they get a complaint. And again, I don’t think that those
0:50:42 complaints are going to be about non-consensual sexual imagery. They’re going to be about people
0:50:49 saying things they don’t like. Cindy, I don’t know if you realize this, but I think you just said one of
0:50:58 the funniest things I’ve heard in five years of podcasting, which is I don’t think Trump is concerned
0:51:07 about non-consensual images. I would say that if that was said at the white house correspondence dinner,
0:51:19 it would be in the words of Barack Obama, a mic drop moment. But anyway, I’m still recovering from that.
0:51:28 And when you see something like that in a bill and the possible perversions of how the bill is used,
0:51:36 is that something that Mike Johnson snuck in and with that intent or is this unintended consequence?
0:51:41 Am I being paranoid? They’re putting shit like that in purposely or it’s unintended?
0:51:47 I think that it’s a mix. I think for some of the people, it might be unintended. This is a bill that
0:51:54 was sponsored by Amy Klobuchar of Minnesota. And I suspect that she’s a very smart person. And it’s not
0:51:58 like people haven’t tried to tell her. I don’t want to give her too much credit, but I think that
0:52:02 people come in with a pretty honest intent to try to address the harms. They’re just more interested
0:52:08 in the harms than they are in the actual impact of how things are going to work in the real world once
0:52:13 they get passed. So some people are dishonest. I don’t think that Mr. Trump is honest in his support of
0:52:19 this, that he really wants to make a stand about non-consensual sexual imagery. Other people are cynical and
0:52:24 some people are well-meaning. There’s another law coming along that I want to flag that has a similar
0:52:31 problem. It’s a law called COSA. It’s the Kids Online Safety Act. And again, this is trying to get at an online
0:52:37 harm, which is kids online and them having access to information that could be dangerous for them.
0:52:43 But what it’s going to do is it’s going to create a requirement that you provide credentials to get
0:52:51 access to most information online. It’s going to require you to show your ID at some level in order
0:52:56 to get access to things online. This is going to age gate everything online. It’s going to make it harder
0:53:01 for people online who don’t have credentials. And that’s a lot of people in this country to actually
0:53:07 get access to the internet in any meaningful way. It’s not going to stop kids from having access to
0:53:12 stuff that they don’t want to have, but it is going to age gate everything on the internet. It’s going to
0:53:16 require a lot of things. And then it’s going to create these huge companies that have everybody’s
0:53:22 identity information that are going to be sitting ducks for data breaches. It’s going to be the mother
0:53:27 load for people who want to do spying, who want to do identity theft or other sorts of things,
0:53:33 because they’re going to create this. And so I think COSA is another one where there is a real harm
0:53:39 of kids having access to stuff that they shouldn’t have online and that the solution that is being
0:53:44 proposed in this law is not going to solve the problem and is going to cause a whole other set of
0:53:49 problems. We know the things that work for kids online and having them not have access to harms,
0:53:55 but they’re a lot more expensive and require a lot more thought than simply just requiring companies
0:54:01 to put in an age gating thing, either on your device or otherwise. And this is something where we live a
0:54:08 lot, especially on the legislative side, which is good intention, bad idea. And it’s hard because I think
0:54:14 a lot of lawmakers really want to respond to this problem and they just don’t pay as much attention to
0:54:18 whether the thing that they’re championing is actually going to solve the problem and what the
0:54:19 collateral impacts are.
0:54:27 So you mean to say that the Speaker of the House and his son cannot maintain control of each
0:54:30 other and take care of this problem. We need other ways to do this.
0:54:36 I think there are other ways to do it. I was a kid. You were a kid. Is the idea that you had to show an
0:54:42 ID, was that a thing that actually kept you out of anything that you really wanted to have access to?
0:54:48 No. So why do we think that’s going to work online where it’s even harder, right? It’s not like fake
0:54:52 credentials were just made up yesterday, right? I just don’t think that’s really going to be the way
0:54:59 to do it. Again, if it caused no collateral problems at all, then okay, whatever, let’s give it a try. But
0:55:03 it’s going to cause a lot of collateral problems and those problems are going to fall on the people who
0:55:05 otherwise don’t have resources.
0:55:09 Isn’t Australia already doing this? Is it causing problems there?
0:55:13 Yeah. You know, I haven’t seen the research yet. Australia is doing a version of it. They’re also
0:55:19 doing a version of blocking encryption. And I haven’t seen the research yet, but I would be shocked if it
0:55:26 was actually having a significant impact. We know that it’s a mix for kids online, right? We know that
0:55:32 there’s a certain percentage of kids who have a hard time online and react badly. There’s another
0:55:36 percentage of kids, and I want to be clear about this. This is LGBTQ kids. It’s kids from marginalized
0:55:41 backgrounds, kids who don’t fit in where they’re growing up, for whom having access to information
0:55:48 on the internet is literally a lifeline. EFF did a survey and it’s convenience data who filled out our
0:55:53 survey, but we asked kids to tell us, you know, what’s their experience online and how has it helped
0:55:58 them? And we had so many, you should read these, they’re on the website, heartwarming and terrible
0:56:03 testimonials from kids who said, if it weren’t for my online community, I would have killed myself
0:56:10 by now. Because nobody in my house or in my community understands what it’s like to be LGBTQ, gender
0:56:17 queer. And it’s the online world that saved my life. And there are a lot of those kids. And I think that
0:56:24 people who are thinking only about one kind of harm and legislating based upon one kind of harm that
0:56:30 definitely impacts a segment of kids online, especially a certain segment of young girls online.
0:56:36 But only legislating based on that and not seeing the other people that they’re going to harm with
0:56:41 it, which includes a lot of gender queer kids and other kids who don’t fit in, whether that’s religiously
0:56:47 or otherwise in the place that they grow up. Like, that’s just bad legislation. We have to save all the
0:56:48 kids, not just some of them.
0:56:52 But maybe they want to harm those kids.
0:56:56 Well, this is one of the things that the Republicans have been pretty clear about. Marshall Blackburn has
0:57:02 been very clear about. Like, when they talk about online harms for kids in a segment of the conservative
0:57:06 side, they mean kids shouldn’t have access to information about this. They’re talking about
0:57:14 their view of harms is if kids have access to information that isn’t the very narrow Christian
0:57:20 infused version of things, that’s the harm is getting access to DEI information or other kinds
0:57:25 of information like that. And so when we talk about online harms, if we don’t specify which harms we’re
0:57:31 talking about, we’re talking about people who really just want to censor what other people’s children can
0:57:37 see. And I think it’s very vulnerable to that. That again, Marsha Blackburn, who is, you know,
0:57:43 or the Heritage Foundation have both said that’s what they want to pass COSA to do. And for the Democrats
0:57:49 and the other people who are really focused on this one area of online harms that I think we could all
0:57:54 agree are not great. To empower those people as well, like it’s wrong and it’s scary.
0:58:03 I have to ask you tactical questions because who better to ask tactical questions? So this is a
0:58:11 very tactical thread we’re going to go into now, which is, let’s say that you are a US citizen,
0:58:17 born and bred, you have no criminal record, you return to the United States from overseas,
0:58:26 and border patrol asks for your phone. Do you give it? Is it your regular phone or do you take
0:58:34 another phone overseas because you knew this might happen? Is it locked? Do you unlock it for them?
0:58:41 Or do you hand it to them and you say, have added boys, try to decrypt this phone. What’s your
0:58:42 attitude at the border?
0:58:48 Sadly, our border is largely a constitutional rights free zone. EFF did a case a few years ago
0:58:53 where we tried to get the Fourth Amendment to apply to the border and we were not successful. We’re not
0:58:59 done. We’re going to keep trying. But you’re pointing out something really true, which is you have many
0:59:05 fewer rights to protect your phone at the border than you do otherwise. You still have to do some
0:59:10 threat modeling and figure out your situation. If you’re an American citizen and you’re coming back
0:59:15 into the country, they can detain you for a while, but they can’t kick you out. You have a right to
0:59:20 come back, but they can make you sit in detention for four or five hours while they try to open your
0:59:25 phone if you don’t open it for them. And you have to decide for yourself, is that something I want to
0:59:30 do that can be very uncomfortable? Other people are like, sure, that’s fine. But I think, do you have
0:59:34 another plane to catch? You’re going to miss another, you’re going to miss your connection. What is
0:59:39 your life like? Are you trying to make it to your daughter’s wedding? Even as an American citizen,
0:59:42 you still have to think about your threat model as you’re coming into the country. And that should
0:59:49 inform what you decide to do. I do recommend that if you’ve got stuff on your phone or accessible
0:59:54 through your phone that you really do need to keep private. Think about taking a second phone. Think about
1:00:00 getting a burner phone that you use for that or a device like an empty Chromebook so that when you get
1:00:07 overseas, you can use a lot of your services that are cloud-based so you can log back in. You don’t need all that
1:00:13 information on the computer you carry. And same for coming back into the country. Wipe this stuff off
1:00:18 of it and then just sign back on again once you get back safely home. And the cloud computing revolution
1:00:23 has made that a lot more accessible to a lot more people than it used to be. The other thing I recommend
1:00:30 is if you are going to carry your own device through the border, turn it off. Turn it off. Because all the
1:00:36 devices require when you turn it back on again, that you put in a password, that you turn off the biometrics,
1:00:41 that you put in a password to open it up again. And it’s encrypted at the time. They can break into most
1:00:47 phones, but it takes a lot more effort and a lot more money. And so you put them in a position where they
1:00:52 have to decide how much work they want to put into entering into your phone. And I sometimes say,
1:00:57 make them fish with a line and a pole. Don’t let them drift net fish through everything. And I think
1:01:02 for a lot of people, unless you’re really the target, that will mean that it’s not worth it to them.
1:01:07 They’ll troll through what’s easy, but they’re not going to deploy the thing that they have to buy from
1:01:11 in order to actually collect information from your phone. Again, it depends on what kind of target you
1:01:15 think you are and how important it is. But I always maintain you should make it a little harder on them.
1:01:19 Make them have to go through every step, even if at the end they might be able to have access.
1:01:24 Make them go through every step because a lot of people just wash out of the process through then.
1:01:27 And I think that’s important to put them through it.
1:01:32 But what about the logic that if you refuse to unlock your phone,
1:01:34 that’s an admission that there’s something you’re hiding?
1:01:38 I don’t think it is an admission. I mean, at the end of the day,
1:01:42 they got to convince a jury or a judge. And I think as long as enough of us do it,
1:01:47 and it’s not just the guilty, then we need to combat that. Like privacy is a human right.
1:01:51 It’s your right. It’s your right not to have the law enforcement go
1:01:56 rifling through your stuff, unless they’ve demonstrated that you’ve done something wrong.
1:02:01 Where do we lawyers call a probable cause finding in front of a judge, right? That’s why we have the
1:02:04 Fourth Amendment the way we have it, which is they have to go to a judge. They have to say there’s
1:02:09 probable cause that you’ve violated the law. And then the judge has to agree with them. That’s what a
1:02:15 warrant is. If they haven’t done all those steps, then it’s your right to say, no, I’m not going to
1:02:21 voluntarily let you do this. That’s why I have a doormat that one of my interns gave me a long time
1:02:25 ago that says, come back with a warrant. And the EFF has them actually stickers for your phone.
1:02:32 That due process protection is important. And if you just decide that you don’t want that protection
1:02:36 anymore, of course, that’s your right. But that doesn’t mean that you’re doing something wrong if
1:02:41 you avail yourselves of the protection of the law. And I think we all need to stand up for that. This
1:02:47 idea that by not letting police just blow past all the protections that people fought and died for us to
1:02:54 have is somehow standing up for our rights as a citizen in order to do what we’ve done. To me,
1:03:00 that’s a patriotic thing to do. That’s why we did a war against a king to have our own country was so
1:03:06 that we could set our own rules. And when we could have a government that abided by them, holding the
1:03:10 government by the rules to me is the more patriotic thing to do, not less.
1:03:19 A few seconds ago, you used the phrase stuff that you might want to hide. But what is the definition
1:03:25 of that? I would think that on almost anybody’s phone, you could find a place where you said,
1:03:31 these tariffs are stupid. It’s going to ruin our economy. Are we at a point where, oh my God,
1:03:37 what if the border patrol saw me say that on social media because they opened up my phone? Am I going
1:03:42 to be deported or something? Yeah. Where are we on that? Well, I think it’s getting more and more
1:03:47 scary. And the Trump administration is trying to require people who want to come to the United States
1:03:52 and get visas to open up their social media to turn everything to public that used to be private. It’s
1:03:57 horrible. And we need to fight this proposal as best we can. I don’t think it’s constitutional,
1:04:02 but yeah, I think one of the things about the time we’re living in, which is really, really scary,
1:04:07 is that the needle is moving so fast and so unpredictably that I think when you ask me,
1:04:14 what if I have nothing to hide? I don’t think anybody can feel safe right now that their presumption
1:04:19 of what that means for them personally, much less for all the people they talk to. Remember,
1:04:23 what’s on your phone isn’t just what you say. It’s what other people say to you that you have.
1:04:28 Even if you might not implicate yourself, you might implicate your friends who got pissed off and wrote
1:04:34 a text about being angry about something that now law enforcement is looking at to try to decide
1:04:40 whether they get to stay in the country or whether they get detained. We often say privacy is a team
1:04:44 sport. The other thing people have to remember is it’s not just them. They have information about all
1:04:50 the people who they communicate with, who they love, who they follow. And so I do think it’s a time where
1:04:58 that story ought to be going away pretty fast. Everybody has reason to want to avail themselves
1:05:04 of their constitutional rights to privacy, to avail themselves of due process. Even if you can’t think
1:05:09 of what you have that might be at risk, that story is changing so fast that I don’t think anybody can give
1:05:16 you an accurate, up-to-date risk profile for yourself. And you ought to take that into consideration.
1:05:24 What does it mean if you are threatened, you or Wikipedia or NPR is threatened with the loss
1:05:28 of a not-for-profit status? What would it mean to you if you lost that?
1:05:35 Oh, it would be terrible. Again, EFF gets support from individuals and many of those individuals get
1:05:40 a tax deduction for supporting us. Now, lots of people don’t. And I think that there is a community
1:05:45 of support that ought not be dependent on nonprofits. And we ought to think about that a little hard,
1:05:51 but we’ve built up this system for civil society, for nonprofits like NPR and otherwise,
1:05:58 that is really based on the idea that there is a tax protected status for our donations. That if that
1:06:03 goes away, people are going to have to get funding in a way that isn’t tax protected. And that’s okay
1:06:08 for individual donations, as again, there are wealthy individuals who itemize for whom this is an important
1:06:14 thing. And that’s a big source of funding. But there’s a lot of poor people who support charities even if they
1:06:20 don’t get a tax deduction. So we need to think about that. But when it comes to foundations and
1:06:26 other kinds of money, many of those foundations can only give to organizations that have C3 status.
1:06:30 So if the MacArthur Foundation or the Ford Foundation, or even the foundations on the right
1:06:36 wanted to give money that wasn’t tax-free, they can’t. They have to change their whole charters and
1:06:42 ways of being in order to do that. So it’s a huge drain of money and support from these organizations
1:06:48 that do everything from soup kitchens and being in the court to religious organizations. They’re all C3,
1:06:55 those kinds of things, as well as people like me who do civil liberties and civil society protections to
1:07:00 people like NPR and other things who provide us information. It’s a huge blow and a huge risk to
1:07:06 this entire sector. Again, because we built up a system that is all interlocking and is all based
1:07:12 on the idea that the IRS C3 protection means that something is in the nonprofit side.
1:07:20 So how do you think this all plays out? There’s like some possibilities, like we all wake up,
1:07:27 there’s a midterm slaughter, we all go, phew, we duck that bullet. That’s one possibility. Another
1:07:34 possibility is Margaret Atwood come to find out wasn’t a novelist. She was a historian. She got it all right.
1:07:41 Another possibility is we have this performative democracy with a constitution and separation of
1:07:47 powers and balance of power, but none of that is really true. What’s your prediction for what’s
1:07:52 going to happen? I’m so bad at predicting. I’m really not good at it. We’re going to work really
1:07:57 hard to make sure that we end up in a position where we are still a self-governing, constitutionally
1:08:02 protected society. We’re going to pull all the levers we can. I would say, look, I was a person who
1:08:09 told the founders of Wired Magazine that the country didn’t need another tech magazine. I am so bad at
1:08:14 predicting the future, but I can say that we won’t get to a better future unless people lean in and try.
1:08:19 We’re not going to be able to just sit back and have this magically fix itself. We didn’t get into this
1:08:24 problem overnight. I don’t think we’re going to get out of it overnight. And we need people to vote,
1:08:30 to lean in, to support the organizations that are working to do this. Of course, EFF is one of them,
1:08:35 but we’re not the only one. Whatever speaks to your heart. We need people to show up. We don’t have an
1:08:43 armchair democracy anymore. We need people to show up to make their voices heard because without that,
1:08:48 we will definitely lose. Sometimes people ask me, are we just going to lose no matter what? And I’m
1:08:54 like, we could lose today or we could fight and lose in the future. And those are the only two choices,
1:08:58 because if you just sit back, it’s not going to get better magically. So I think people need to lean
1:09:03 in. They need to engage. They need to find what speaks to their heart and really show up for it.
1:09:08 I hope for some people that’s EFF because I think we do show up and we have done it. We know how to push
1:09:14 right now. But if that’s not the thing, find the thing that works for you because we’re not going to get
1:09:19 out of this by just sitting back and magically thinking things are going to get better. Tech’s
1:09:25 not going to solve this all on its own. Tech needs people who are willing to step in and make sure that
1:09:29 our tech and our world support us rather than suppress us.
1:09:36 Wow, Cindy. So listen, I want to thank you. I want to thank you in two senses. The first sense is,
1:09:42 of course, for the simple act of coming on my podcast, because it’s been a very remarkable
1:09:49 podcast. But even bigger, I want to thank you and the EFF for the work that you’re doing to preserve
1:09:56 democracy. The work you’re doing is so important. And as soon as I hang up, I’m going to send you money.
1:10:00 Thank you so much. Oh, guy, that’s wonderful.
1:10:05 Thank you very much, Cindy. And just let me thank the Remarkable People team. That would,
1:10:13 of course, be Madison Nismer, who is our producer. Jeff C is our co-producer. And we have a sound
1:10:19 design engineer named Shannon Hernandez and a researcher named Tessa Nismer. So, Cindy,
1:10:24 that’s all the people on the Remarkable People team. And we’re trying to make this a remarkable,
1:10:25 long-lasting democracy.
1:10:32 This is Remarkable People.