The power of technology and big data is pervasive in today’s world. And just as legal professionals look to harness its power, others – like Cindy Cohn, executive director of the Electronic Frontier Foundation – vow to make sure those who tap its potential do so responsibly.
Thomson Reuters Westlaw is proud to sponsor Cohn as the keynote speaker at ABA TECHSHOW 2016 next week. The theme of her speech is “The Fourth Amendment, the NSA and the Digital Age.”
Legal Current recently spoke with Cohn to get a preview of her speech, how her career path led to the EFF and areas where technology is continuing to outpace the law.
Legal Current: Tell us about your career path – how did you find yourself with the EFF?
Cindy Cohn: I was an English major and not particularly technical, but in about 1990, I met a few folks who were active in the free software movement and were already plugged into the fact that the technologies they were using (pre-world wide web) were going to have a huge impact on the world. One of them was John Gilmore, one of the founders of EFF.
I was a 1989 graduate of the Michigan Law School, fresh off of a fellowship doing human rights law at the UN in Geneva and just starting my law practice in San Francisco. One day, John called me and asked if I’d be willing to take on a pro bono case about a guy who wanted to publish a computer program on the Internet and learned that if he did, he could go to jail as an arms dealer.
“What does it do, does it blow things up?” I asked.
“No,” he said, “It keeps things secret.”
“That sounds like a First Amendment problem to me,” I said.
So I went to my firm, said I thought this Internet thing might become a big deal and they let me take the case. By then I was at a tiny, but terrific firm in San Mateo, Calif. called McGlashan and Sarrail. The case was Bernstein v. DOJ and Apple is relying on it in their recent fight with the FBI. So in some ways, I’m still where I started out.
In 2000 EFF’s legal director, Shari Steele, took over as executive director and asked me to come take her old job. I agreed and it’s been such fun that I’ve never left. In April 2015, Shari left to move to Seattle and I took over as Executive Director.
LC: What can ABA TECHSHOW attendees expect from your keynote?
CC: I will introduce EFF a bit, then walk through our current case challenging the NSA’s Upstream surveillance – Jewel v. NSA – that focuses on the Fourth Amendment issues. The NSA is doing mass copying and searching of communications flowing through key Internet backbone junctures, effectively spying on a huge chunk of our online communications. I think this is important not just in the national security context, but also for society as a whole, since surveillance technologies developed for one purpose do tend to slide into general use over time.
I’ll also talk about the FBI/Apple case since that will be on everyone’s minds. The magistrate’s hearing is set for March 22 in Riverside, Calif., and I expect that interest will continue through then and beyond.
LC: So with the Apple case in mind, is there another technology issue that may not be on the public’s radar that has you concerned?
CC: I think overall we are living in a time when we know less and less about what technological tools law enforcement relies upon in its duties, and that leaves us with less and less ability to conduct any oversight, or challenge tools that we think are overreaching or should not be used at all. License plate readers, stingrays, biometrics like facial recognition, predictive policing and other attempts to use algorithms and big data to predict where crime is going to happen… the list goes on and on.
We have just launched a project at EFF that looks at all this called Street Level Surveillance. Local governments are signing NDAs committing not to tell anyone that they are using various technologies. And we know that state and federal governments use concepts like “parallel construction,” to hide the source of evidence and information from defendants, thus limiting their ability even to challenge them as part of a criminal defense. The public tends to find out about these scenarios from leaks, mistakes by the government or other anomalous situations, rather than being presented with them directly and given a fair chance to comment or reject them before these things are implemented.
This presents a tremendous challenge to the idea that we’re a self-governing system, and I think it gets overlooked largely because the government has been so secretive.
LC: Do you envision a time where the law can keep pace with technology?
CC: I think the law will trail technology, always, but I also think we can close the gap. And if we have some good forward-looking principles embodied in the law, we’ll be steps ahead when the technology challenges them.
The First Amendment, for instance, has been applied to new technologies pretty well. The Fourth Amendment has been tougher, but I think that’s because some of the caselaw has been bogged down in the specific technologies at issue – pagers, heat detectors, phones, and so on – and the courts have been less willing to articulate broad principles.
LC: Thank you, Cindy.
For more information on Cohn’s keynote, click here.
And for more on ABA TECHSHOW, visit Legal Current for updates from Chicago and post-show recaps.
This post originally appeared on Legal Current.