Five Years Out: Tom McBrien ’21

In his role as counsel at the Electronic Privacy Information Center, Tom McBrien ’21 draws on his NYU Law experience as he advocates, litigates, and educates at the intersection of law, technology, and civil liberties.

Describe your current position. What are the challenges? What do you like most about it? 

EPIC is a nonprofit research and advocacy center that works to protect privacy and freedom of expression in a digital world. A really exciting thing about working at EPIC is how many different hats I get to wear. There really is no typical day. I get to do policy work, advocacy, and public education. I am also involved with litigation and research. Being able to do all of these things in a way where you can use them to buttress each other and work toward an end goal is, I think, a really privileged position in the law.

Although one of my favorite things about the job is wearing all those different hats, that is also the challenge. You can get whiplash working on a lot of different issues: AI governance, social media regulations, Section 230 [of the Communications Decency Act of 1996, shielding online platforms and users from legal liability for content posted by third parties], the First Amendment, the Fourth Amendment. It’s a lot to know, and I think you have a responsibility to know what you’re talking about and to be humble when you don’t. So that’s definitely a challenge, but a good one.

I’ve had the opportunity to really dive into the issue of surveillance pricing, which is the practice by which companies are processing our personal data to charge each of us an individualized price for the same good or service at the same time. I think people really understand the salience of price these days, especially with all the conversations going on around affordability. So it has been great to see a bipartisan, broad-based coalition emerging that wants to regulate or ban surveillance pricing. We have provided a lot of technical assistance behind the scenes to lawmakers. I’ve testified in favor of different states’ bills regulating surveillance pricing, such as New Jersey’s, New York’s, and Colorado’s. I’ve been able to speak on panels at conferences for state attorneys general. I have been on ABC News and NBC News NOW, in the New York Times a few times, in the Guardian, and it’s been exciting to help educate the public on this issue and push for real reform.

Another issue we’re working on is how to address the harms of social media while not violating the First Amendment rights of publishers, of kids, of various stakeholders. I have been very involved with writing our model social media platform design regulation that we really believe is the best way to address these harms. And on the litigation side, helping form the legal theories about why our social media design regulation is consistent with free speech values has been exciting work. Writing those amicus briefs and seeing them cited by judges has been really rewarding, because you see the impact you’re having on a cutting-edge area of law.

What led you to work at EPIC?

I always had an interest in both science and technology, but also in how science and tech showed up for people or against people in their daily lives. When I graduated from college, I worked at a tech company for a little while—didn’t love that work. Then I worked at a homeless services center in Detroit, where I saw how technology was impacting people on a day-to-day basis, because the people coming to us for services were being increasingly surveilled around the city. This program called Project Green Light was increasing the police’s ability to shift people around depending on what was going on in the city at the time. Also, people were struggling with algorithms and their public benefits.

I had been thinking about going to law school for a long time, and what I witnessed really convinced me that I was excited to work on systemic issues of law and tech. When I got to NYU Law, I did everything I could to increase my understanding of these issues and to meet people working in the field. I was lucky enough to get a two-year postgraduate fellowship at EPIC. After that, they offered me the opportunity to stay on full-time as counsel.

How did NYU Law prepare you for your career path?

One of the great things about going to NYU is that you’re in New York and you’re surrounded by great professors and great practitioners. In the Technology Law and Policy Clinic, I had the [American Civil Liberties Union] as a client, so I got to know some folks there. Brett Kaufman, who was also a clinical teaching fellow at NYU Law, was a mentor for me, and another of my ACLU clients, Jennifer Granick, was an attorney in their Speech, Privacy, and Technology Project. I was working with them closely through the clinic and then was looking for a 2L summer internship, and they had some positions open. So I applied there and had a really awesome experience at the ACLU that summer that helped set me up for my postgraduate career.

What were your favorite classes or favorite activities at the Law School?

The clinic was a great learning opportunity. Professor Jason Schultz set up that clinic very well. I benefited from his mentorship and the mentorship of the other teaching fellow, Chris Morten ’15, who now leads his own clinic at NYU and remains an invaluable mentor to me to this day.

I worked on a model amicus brief for the ACLU relating to what we call all-content warrants. Police may want to look through someone’s phone or laptop for evidence of a crime. They were obtaining search warrants that essentially said you can look through the entirety of the phone, just kind of thumb through it, find whatever you like. Under the Fourth Amendment, a warrant is supposed to describe with particularity what you’re looking for and justify why it may be found there. The ACLU was very concerned that these all-content warrants just enabled a fishing expedition and were being used to find evidence of completely unrelated crimes. We wrote this model amicus brief to argue that these warrants need to be written more particularly. Since graduating, I’ve actually had the opportunity to partner with the ACLU on some briefs on this issue, which has been a fun full-circle moment.

I also took a seminar with Judge Jed Rakoff on the topic of technology and evidence. Judge Rakoff played a really important role nationally in pushing back against junk science and forensics. His seminar helped train me in how to think skeptically and vigorously about the role technology plays in different systems, like our legal system, and how to communicate these difficult issues in ways that can cut through some of the tech hype to emphasize values like fairness, equality, and truth-seeking.

Another great course was Federal Courts and Appellate Advocacy with Judge Harry Edwards. This was an intensive experiential learning-based course—definitely the hardest one I took, but in a great way. We learned about the rules of federal courts and applied those rules by actually briefing and doing moot oral argument in cases that were before Judge Edwards’s court, the US Court of Appeals for the DC Circuit, at the time.

Outside of class, I got really involved with the Privacy Research Group, which is headed up by Professor Katherine Strandburg, another great mentor of mine. The group brings together academics from around New York weekly to workshop their papers, generally focused on tech law and policy. It was really valuable for immersing myself in the issues I cared about and setting me up with contacts and connections that I still tap to this day when I have questions in my issue areas that these academics are experts in.

What advice do you have for law students interested in technology law and policy?

Jump headfirst into whatever interests you have. I did a lot of the traditional law school things. I was on a journal and in a few different student groups, and I valued all those experiences. But I also forwent some of the brass rings. I didn’t apply for a clerkship, I wasn’t on law review. Meanwhile, I was diving headfirst into the Privacy Research Group, my internships, the clinic. And I think that really helped me, because making relationships is an important part of law school and of getting to where you want to be. I found it easiest to make relationships where I was genuinely interested in what I was working on, and where whoever I was speaking with could sense that sincerity.

My other piece of advice is: Whatever you’re doing, just have a vague idea of how you can weave that into a story that explains where you’re going and why you want to go there. When I was in law school, tech law and policy was already becoming a big deal, but my sense is that it’s gotten even more popular since then. If you’re trying to break into this field, your superpower is being able to tell a really convincing and sincere story about what you care about and why it’s implicated in tech law and policy.

You don’t have to be an expert in everything, but you have to demonstrate that you do really care and why you care.

What do you most like to do outside of work?

I love doing things where I’m not looking at a screen. I do a lot of embroidery, cooking, and baking—making things with my hands. I have some good friend groups I hang out and see movies with, and I’ve loved living in DC and getting involved in local politics. I have volunteered for a grassroots climate organizing campaign, which has been really exciting. Canvassing for some candidates in local DC politics has been exciting as well, and a good way to form community.

This interview has been condensed and edited.