How a Grad Student and a Young Lawyer Won the Right to Encrypt
Three decades ago, the U.S. government classified encryption as a munition. A landmark court case established that code is speech—a precedent that shaped the internet we use today.
Encryption now underpins how we send emails, exchange direct messages, and conduct secure transactions across the internet. The technology scrambles readable information into unintelligible form to safeguard privacy and security. Yet this widespread adoption was not inevitable. Thirty years ago, federal authorities treated encryption as a weapon, and it took an unlikely coalition—a graduate student, a junior attorney, and an emerging civil liberties organization—to challenge that stance through litigation.
The case Bernstein v. Department of Justice produced a ruling with lasting consequences: the court determined that code constitutes speech and therefore receives First Amendment protection. This decision became foundational to how the internet operates today. The case was spearheaded by Cindy Cohn, then a young pro bono attorney representing the Electronic Frontier Foundation, who later served as the organization's legal director and chief executive.
The second episode of the podcast series "Privacy's Defenders" explores the individuals—attorneys, journalists, technologists and others—who fought to protect digital freedoms during the internet's formative years, often before the public understood what the internet was.
In the episode, Cohn speaks with Dan Bernstein, who was pursuing graduate studies at the University of California, Berkeley when he created a straightforward encryption system called "Snuffle." At that time, federal regulations classified encryption technology as military equipment. To make Snuffle public, Bernstein would have needed to submit it for government approval, register as an arms merchant, and obtain authorization—something the government was unwilling to provide. Bernstein viewed this restriction as a violation of his constitutional right to free expression. He filed suit in 1995, with Cohn representing him through EFF.
Cohn also interviews Tony Coppolino, the Justice Department attorney who opposed her in court. Coppolino acknowledges that she made an impression on him from their initial conversation and offers a retrospective assessment of the case.
"Privacy's Defenders" releases new episodes every other Tuesday and extends the reach of Cohn's book, "Privacy's Defender: My Thirty-Year Fight Against Digital Surveillance," by featuring firsthand accounts from those who championed these rights. Book proceeds support EFF's work.
Joanne Elgart Jennings co-produced and created the podcast. Jarod Sport handled co-production, mixing, and mastering. Corinne Ruff served as story editor, with additional contributions from Rachel Estabrook and Alison Broverman. Original music was composed and performed by Nat Keefe of Hot Buttered Rum, with Ben Andrews on fiddle.