When Our Organs Are Under Surveillance: Privacy After Roe

Cindy Cohn. (Wiki photo)

In the wake of Dobbs, the conversation about digital privacy — and how abortion seekers can protect their data from law enforcement — has exploded. But what's actually important to online security, and what is a red herring? Last week on This is Critical, Cindy Cohn, Executive Director of the Electronic Frontier Foundation, joins Virginia to get to the bottom of what individuals can do to keep their most personal data safe.

Listen here or read the transcript below.

Virginia: Hello and welcome to This Is Critical! I’m Virginia Heffernan. This is the show where we question all of your cultural creeds, including that you have to choose between iced and hot coffee, when really it is completely civilized and appropriate to order an iced coffee with a hot coffee back. 

Since the Supreme Court handed down their decision in Dobbs v Jackson Women’s Health Organization last month, overturning Roe v Wade, certain corners of the Internet have been …let’s just say, aroused. Because the legal basis of the original Roe decision was that people have a right to privacy in medical decisions, its overturn means that that privacy is no longer guaranteed. Which means something VERY different now, in the digital age, than it did in 1973. 

If you’ve been online at all in the last month, I’m sure you’ve seen tweets, articles, listicles, and more instructing people to take all sorts of precautions in the name of digital privacy. You’ve probably heard the exhortations to delete your period tracking apps (for fear a missed period but no baby could tip off law enforcement). You may have even heard about the looming specter of geofence warrants - which may allow police to issue warrants for anybody whose device shows them having been near a clinic. 

We’re heading towards a world in which a late period - or being near a facility that provides abortions - is grounds for a homicide accusation. So something that happens all the time is now criminalized and in some places in very, very extreme ways. So you get snitches, you get surveillance, and then you get responses to that. You get hiding, you get smuggling of pills, you get meetings that wouldn't have happened. Everything becomes clandestine. It’s dystopic.

But I wanted to get to the bottom of what we actually should be worrying about when it comes to data protection. So I called upon someone who’s been in the realm of digital privacy for years. 

EFF, or the Electronic Frontier Foundation, has been around for over three decades, since 1990, and it's one of these organizations that you either know as an icon or you've never heard of it. And Cindy Cohn, EFF’s executive director and my guest today, has been fighting for the rights of platform users and digital citizens nearly since the organization’s inception.

Cindy Cohn, welcome to This is Critical. 

Cindy: Thank you.

Virginia: I was just gonna tell you how thrilled I am to have you here because I am a longtime admirer of you and also of EFF. So for listeners who don’t already know and admire you, tell us a bit about EFF and how you came to it.

Cindy: Sure. Well, EFF itself was founded by John Perry Barlow and Mitch Kor and John Gilmore with help from a guy named Steve Wozniak, who you may have heard of. And the idea of the EFF was to try to have an organization that was there making sure that our constitutional rights were protected as we moved into the digital age. 

There had been a series of raids on people's homes and businesses that mainly were being done by the Secret Service based upon really flimsy arguments and the organization was created to try to, you know, put a stake in the ground around in the early days, Fourth Amendment rights. You know, when can the cops come grab all your digital devices, when do they need a warrant, when don't they. So the organization was founded to try to do that.

And I got involved around 1992, 93. I was friends with John Gilmore and I knew some early internet hackers out of the Free Software Foundation. They asked me if I would take on a case to try to free up encryption technology from government control. It was fairly obvious that if we were gonna have any security or privacy in the digital world, we needed access to encryption. And the government treated it like it was a weapon. It was on the US munitions list. Next to, you know, surface to air missiles and tanks was software with the capability of maintaining secrecy.

And I undertook a case called Bernstein vs. Department of Justice to try to free up encryption so that the rest of us could have it and luckily, or happily we were successful. And that's why we have the security that we have, whether that's Signal messaging or WhatsApp or other things where you use your credit card. That case was one of the foundations for security online. And it's still under threat. There's a bill in Congress right now to try to undermine strong encryption. This is a fight that has sadly never really gone away, in the whole 32 years of the organization's existence, which is frustrating, uh, to say the least.

Virginia: But you have had successes. It's interesting, when listeners think about contemporary complaints about the internet, it's that there’s too much trolling, that you run into neo-Nazis. As in that the internet is TOO free, and lets some bad actors run amok. But there’s the opposite threat too—too much control, too much government incursion. In the early 90s up to and including, I mean, I'm sure you remember the clipper chip – which was this device that popped up in the early 90s that theoretically encrypted your data but had a backdoor that let the government look at whatever they wanted to… there was just all kinds of surveillance and search and seizure, you know, the protections that you all were at the forefront of securing for us internet citizens, it kind of can't be overstated.

Cindy: Yeah, it's a lot. And you know, the thing about it is that like, if you're in an either/or mindset, you're gonna get it wrong. It can't be either the companies have complete control or the government has complete control. Neither of those is a world you wanna live in. Nobody wants to live in a Chinese-style repressive regime, or if say something that the government doesn't want, you find yourself censored or worse.