July 21, 2005 | By Cindy Cohn

EFF15: The Phone Call

(As part of the EFF15 Blog-a-thon, some EFF staff and interns will be posting stories explaining their personal connection to online freedom. For more posts in this series, click here. )

Late one evening in 1994, when I was a fairly new attorney, EFF co-founder John Gilmore called me at home in San Francisco to see if I was interested in helping him with a new lawsuit.

John called me partly because of my interest in civil liberties and human rights. I worked for both the United Nations and a human rights nonprofit before starting my law practice in earnest. I had worked with Tibetans, Native American tribes, Nigerian villagers, and the leaders of Lithuania, Latvia, Estonia, and Georgia back when they were routinely dismissed as "dissident forces" in the then-mighty Soviet Union.

More importantly, I suspect, he rightly figured that I was the kind of softie he could talk into handling a case for EFF for free.

"What is the lawsuit about?" I asked.

"A doctoral student in mathematics named Dan Bernstein has been told by the government that if he publishes a computer program he wrote on the Internet he could go to jail as an arms dealer."

"What does the computer program do, John?" I responded. "Does it blow things up? Take planes out of the sky? Reveal the location of warships at sea?"

"No, it just lets you keep messages secret. It's an encryption program. Without it, your email messages are just like a postcard, open for anyone to read," he replied.

"Sounds like a First Amendment problem to me," I said, despite not knowing what encryption was, or ever having sent an email message.

"Me too. Want to take the case with EFF?"

That's how it started.

(Read on for more after the jump)

The case is Bernstein v. Dept of Justice. With it, EFF and a small ragtag band of attorneys went up against the US national security establishment and won. We established that computer programs are protected expression under the First Amendment and helped neutralize the government's export restrictions on non-commercial encryption software, almost eliminating them entirely. Eventually, I joined EFF full-time as its Legal Director, a position I've proudly held for the last five years.

I took the Bernstein case for two reasons. First, I believe in the right of computer scientists to publish their works just like novelists, artists, and other kinds of scientists do. Computer programs are fundamentally sets of instructions or recipes that happen to be readable by humans and specialized machines alike. For innovation and science to flourish in the digital age, we cannot create a second-class citizenship for this kind of speech.

The second reason is more personal, though. As a civil liberties and human rights lawyer, I know the value of privacy -- especially private communications -- to those struggling for freedom. I've watched as colleagues risk their lives to get information out to the world and to organize in the face of tremendous repressive power. If repressive governments, criminals, or even opposing political parties can read the emails and track every action of their opponents and ordinary citizens online, then both democracies and lives are in danger. Ordinary citizens also deserve a zone of privacy online, where they can learn about sensitive subjects or float ideas without fear, and where government can only intrude with proven, good reason. This is a lesson that we keep having to learn in the US, especially in an age of terrorism. But it is true.

So happy birthday, EFF. Thanks for giving me the opportunity to wake up every morning and work to bring civil liberties and human rights into the digital age intact. And thanks John, for recognizing a softie when you see one.


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