Tracing the Legal Battle Over Cryptographic Code
When the Electronic Frontier Foundation released the second episode of its Privacy’s Defenders podcast on October 13, 2026, titled “No Privacy Without Encryption,” it spotlighted an era when the U.S. government treated cryptographic algorithms like physical military weaponry. Today, standard online communications, secure international commerce, and personal messaging rely entirely on encryption to convert readable data into unreadable text. That protective digital barrier did not emerge by accident.
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Three decades ago, federal regulations restricted the export and publication of encryption software by classifying it under munition controls. Publishing code meant submitting it for strict government review and acquiring an arms dealer license that officials had no intention of granting. That bureaucratic hurdle triggered a landmark legal challenge that permanently altered the architecture of the internet.
The Lawsuit That Established Code as Protected Speech
The resulting ruling in Bernstein v. Department of Justice established a foundational precedent for digital privacy rights. As Josh Richman of the Electronic Frontier Foundation explained, “The ruling in Bernstein v. Department of Justice held that code is speech and so is protected by the First Amendment – a precedent that underpins the internet as we know it today.” That constitutional protection enabled developers to build robust encryption into everyday browsers, operating systems, and messaging protocols without fearing criminal prosecution.
Inside the Second Episode of Privacy’s Defenders
The newly released podcast episode brings those historical tensions to life through direct interviews with the principal figures involved in the litigation. Cindy Cohn—who served as the legal director and later executive director of the Electronic Frontier Foundation before departing the organization in June—leads discussions examining the intersection of constitutional law and digital security.
In the episode, Cohn speaks directly with Daniel Bernstein about his initial decision to challenge the federal government over the “Snuffle” algorithm. The episode also features an interview with Tony Coppolino, the Justice Department attorney who faced Cohn in court. Coppolino admits that Cohn intimidated him from their very first phone call while offering a retrospective perspective on the high-stakes litigation all these years later, according to eff.org reporting.
Legaltechdigest.com noted that the ongoing podcast series serves as a companion to Cindy Cohn’s book, Privacy’s Defender: My Thirty-Year Fight Against Digital Surveillance, providing legal and policy professionals with essential context on how encryption safeguards modern secure commerce and personal communications against rising digital surveillance.
