“I actually have no idea why we’re all here on a Friday night,” Moglen continued, “but I’m very grateful for the invitation. I am the person who had no date tonight—so it was particularly convenient that I was invited for now. Everybody knows that. My calendar’s on the web.” No need for Moglen to check any other calendars to know that quite a few members of the audience did not have dates, either. His confession was an act of kinship, but it also had a serious edge.
“Our location is on the web,” Moglen said. Cell phones could pinpoint someone’s whereabouts. Millions of times a year, the major mobile phone companies asked for and were given the precise location of people with telephones. There was no court order, no oversight, just people with law enforcement ID cards in their pockets.
“Just like that,” he said, getting warmed up.
He was making these points three years before Edward Snowden emerged from the shadows of the National Security Agency to fill in the shapes that Mogen was sketching.
“The deal that you get with the traditional service called ‘telephony’ contains a thing you didn’t know, like spying. That’s not a service to you but it’s a service and you get it for free with your service contract for telephony.”
For those who hacked and built in garages or equivalent spaces, Moglen was an unelected, unappointed attorney general, the enforcer of a legal regimen that protected the power of people to adjust the arithmetic that made their machines work.
As the volunteer general counsel to the Free Software Foundation, Moglen was the legal steward for GNU/Linux, an operating system that had been largely built by people who wrote their own code to run their machines. Why pay Bill Gates or Steve Jobs just so you could turn your computer on? For the low, low price of zero, free software could do the trick just as well, and in the view of many, much better. And GNU/Linux was the principal free system, built collaboratively by individuals beginning in the mid-1980s. It began as GNU, a code bank overseen by a driven ascetic, Richard A. Stallman, and found a path into modern civilization when a twenty-one-year-old Finnish computer science student, Linus Torvalds, adopted much of the Stallman code and added a key piece known as the kernel, to create a free operating system. (One of his collaborators called Torvalds’s contribution Linux, and as the GNU/Linux release became the most widespread of the versions was routinely shorthanded as Linux, to the dismay of Stallman.) They were joined by legions of big businesses and governments following the hackers down the free-software road. On average, more than nine thousand new lines of code were contributed to Linux every day in 2010, by hundreds of volunteers and by programmers working for businesses like Nokia, Intel, IBM, Novell, and Texas Instruments.
The successor to Bill Gates as CEO of Microsoft, Steve Ballmer, fumed that Linux had, “you know, the characteristics of communism that people love so very, very much about it. That is, it’s free.”
It was indeed. As the Free Software Foundation saw things, in principle, the strings of 1s and 0s that make things happen on machines were no more the property of anyone than the sequence of nucleotides that provide the instructions for life in deoxyribonucleic acid, DNA.
Linux was the digital genome for billions of phones, printers, cameras, MP3 players, and televisions. It ran the computers that underpinned Google’s empire, was essential to operations at the Pentagon and the New York Stock Exchange, and served as the dominant operating system for computers in Brazil, India, and China. It was in most of the world’s supercomputers, and in a large share of the servers. In late 2010, Vladimir Putin ordered that all Russian government agencies stop using Microsoft products and convert their computers to Linux systems by 2015.
Linux had no human face, no alpha dog to bark at the wind; it had no profit-and-loss margins, no stock to track in the exchanges, and thus had no entries on the scorecards kept in the business news sections of the media. It was a phenomenon with few precedents in the modern market economy, a project on which fierce competitors worked together. In using GNU/Linux, they all had to agree to its licensing terms, whose core principles were devised primarily by Stallman, of the Free Software Foundation, in consultation with Moglen and the community of developers.
The word “free” in the term “free software” often threw people off. It referred not to the price but to the ability of users to shape the code, to remake, revise, and pass it along, without the customary copyright limitations of proprietary systems. Think of free software, Stallman often said, not as free as in free beer, but free as in free speech. So the principles of free software were spelled out under the license that people agreed to when they used it: anyone could see it, change it, even sell it, but they could not make it impossible for others to see what they had done, or to make their own subsequent changes. Every incarnation had to be available for anyone else to tinker with. Ballmer of Microsoft called it “a cancer that attaches itself in an intellectual property sense to everything it touches.”
As the chief legal engineer for the movement, who helped to enforce the license and then to revise it, Moglen was the governor of a territory that was meant to be distinctly ungovernable, or at least uncontrollable, by any individual or business.
Having started as a lawyer for the scruffy, Moglen often found himself, as the years went by, in alliances that included powerful corporations and governments that were very pleased to run machines with software that did not come from the laboratories of Microsoft in Redmond, Washington, or of Apple in Cupertino, California. It was not that Moglen or his original long-haired clients had changed or compromised their views: the world simply had moved in their direction, attracted not necessarily by the soaring principles of “free as in free speech,” or even because it was “free as in free beer.” They liked it because it worked. And, yes, also because it was free.
The hackers had led an unarmed, unfunded revolution: to reap its rewards, all that the businesses—and anyone else—had to do was promise to share it. The success of that movement had changed the modern world.
It also filled the lecture hall on a Friday night. Yet Moglen, as he stood in the auditorium that night in February 2010, would not declare victory. It turned out that not only did free software not mean free beer, it didn’t necessarily mean freedom, either. In his work, Moglen had shifted his attention to what he saw as the burgeoning threats to the ability of individuals to communicate vigorously and, if they chose, privately.
“I can hardly begin by saying that we won,” Moglen said, “given that spying comes free with everything now. But we haven’t lost. We’ve just really bamboozled ourselves and we’re going to have to unbamboozle ourselves really quickly or we’re going to bamboozle other innocent people who didn’t know that we were throwing away their privacy for them forever.”
His subject was freedom not in computer software but in digital architecture. Taken one step at a time, his argument was not hard to follow.
In the early 1960s, far-flung computers at universities and government research facilities began communicating with one another, a network of peers. No central brain handled all the traffic. Every year, more universities, government agencies, and institutions with the heavy-duty hardware joined the network. A network of networks grew; it would be called the Internet.
The notion that these linked computers could form a vast, open library, pulsing with life from every place on earth, gripped some of the Internet’s earliest engineers. That became possible in 1989, when Tim Berners-Lee developed a system of indexing and links, allowing computer users to discover what was available elsewhere on the network. He called it the World Wide Web. By the time the public discovered the web in the mid-1990s, the personal computers that ordinary people used were not full-fledged members of the network; instead, they were adjuncts, or clients, of more centralized computers called servers.
“The software that came to occupy the network was built around a very clear idea that had nothing to do with peers. It was called ser
ver-client architecture,” Moglen said.
So for entry to the promise and spoils of the Internet, individual users had to route their inquiries and communications through these central servers. As the servers became more powerful, the equipment on the desktop became less and less important. The servers could provide functions that once had been built into personal computers, like word processing and spreadsheets. With each passing day, the autonomy of the users shrunk. They were fully dependent on central servers.
“The idea that the network was a network of peers was hard to perceive after a while, particularly if you were a, let us say, an ordinary human being,” Moglen said. “That is, not a computer engineer, scientist, or researcher. Not a hacker, not a geek. If you were an ordinary human being, it was hard to perceive that the underlying architecture of the net was meant to be peerage.”
Then, he said, the problem became alarming, beginning with an innocent, and logical, decision made by naïve technologists. They created logs to track the traffic in and out of the servers. “It helps with debugging, makes efficiencies attainable, makes it possible to study the actual operations of computers in the real world,” Moglen said. “It’s a very good idea.”
However, the logs had a second effect: they became a history of every inquiry that users made, any communications they had—their clicks on websites to get the news, gossip, academic papers; to buy music or to stream pornography; to sign in to a bird-watchers’ website or to look at the latest snapshots of the birth of the universe from NASA and of the outfit that Lady Gaga wore to a nightclub the night before. The existence of these logs was scarcely known to the public.
“We kept the logs, that is, information about the flow of information on the net, in centralized places far from the human beings who controlled, or thought they controlled, the operation of the computers that increasingly dominated their lives,” Moglen said. “This was a recipe for disaster.”
No one making decisions about the architecture of the Internet, Moglen said, discussed its social consequences; the scientists involved were not interested in sociology or social psychology, or, for the most part, freedom. “So we got an architecture which was very subject to misuse. Indeed, it was in a way begging to be misused, and now we are getting the misuse that we set up.”
The logs created as diagnostic tools for broken computers were quickly transformed into a kind of CT scan of the people using them, finely scaled maps of their minds. “Advertising in the twentieth century was a random activity; you threw things out and hoped they worked. Advertising in the twenty-first century is an exquisitely precise activity.”
These developments, Moglen said, were not frightening. But, he warned: “We don’t remain in the innocent part of the story for a variety of reasons.
“I won’t be tedious and Marxist on a Friday night and say it’s because the bourgeoisie is constantly engaged in destructively reinventing and improving its own activities. And I won’t be moralistic on a Friday night and say that it is because sin is ineradicable and human beings are fallen creatures and greed is one of the sins we cannot avoid committing. I will just say that as an ordinary social process, we don’t stop at innocent. We go on. Which is surely the thing you should say on a Friday night. And so we went on.
“Now, where we went on—is really toward the discovery that all of this would be even better if you had all the logs of everything. Because once you have the logs of everything, then every simple service is suddenly a gold mine waiting to happen. And we blew it, because the architecture of the net put the logs in the wrong place. They put the logs where innocence would be tempted. They put the logs where the fallen state of human beings implies eventually bad trouble. And we got it.”
The locus of temptation, to dawdle with Moglen in the metaphysical, is not an actual place: the servers that held all this succulent data were not necessarily in a single physical location. Once the data was dragnetted from someone’s Facebook entries, for instance, they could be atomized, the pieces spread across many servers, and then restored in a wink by software magic. The data was in a virtual place, if one that was decidedly not virtuous. The data was in the cloud, and thus beyond the law.
“You can make a rule about logs, or data flow, or preservation, or control, or access, or disclosure,” Moglen said, “but your laws are human laws, and they occupy particular territory and the server is in the cloud and that means the server is always one step ahead of any rule you make or two, or three, or six, or poof! I just realized I’m subject to regulation, I think I’ll move to Oceania now.
“Which means that, in effect, we lost the ability to use either legal regulation or anything about the physical architecture of the network to interfere with the process of falling away from innocence that was now inevitable.”
In 1973, at age fourteen, Moglen had gotten a job writing computer programs for the Scientific Timesharing Corporation in Westchester, north of New York City, work that he continued for one company and another for the next decade. By 1986, at age twenty-six, he was a young lawyer, clerking for the Supreme Court justice Thurgood Marshall, and also working his way toward a PhD in history, with distinction, from Yale. His dissertation was titled “Settling the Law: Legal Development in New York, 1664–1776.” At midlife, his geeky side, his legal interests, his curiosity about how human history was shaped, had brought him to the conclusion that software was a root activity of humankind in the twenty-first century, just as the production of steel had been an organizing force in the twentieth century. Software would undergird global societies.
Software, then, was not simply a rattle toy for playpens filled with geeks, the skeleton of amusements for a naïve public, but a basic moral and economic force whose complexity had to be faced coolly, with respect, not fear.
In the eighteenth century, Jeremy Bentham, a British social theorist, conceived of a prison where all the inmates could be seen at once, but without knowing that they were being observed. He called it the panopticon and predicted it would be “a new mode of obtaining power of mind over mind, in a quantity hitherto without example.” Beginning in the 1970s onward, the cypherpunks, many of them pioneers at leading technology companies, saw that dystopian possibilities were built into the treasures of a networked world.
Moglen said: “Facebook is the web with ‘I keep all the logs, how do you feel about that?’ It’s a terrarium for what it feels like to live in a panopticon built out of web parts.
“And it shouldn’t be allowed. It comes to that. It shouldn’t be allowed. That’s a very poor way to deliver those services. They are grossly overpriced at ‘spying all the time.’ They are not technically innovative. They depend upon an architecture subject to misuse and the business model that supports them is misuse. There isn’t any other business model for them. This is bad.
“I’m not suggesting it should be illegal. It should be obsolete. We’re technologists, we should fix it.”
The crowd roared. Moglen said he was glad they were with him, but he hoped they would stay with him when he talked about how to fix it. “Because then,” he said, “we could get it done.”
By now, Dan in his apartment, Ilya and Max in the auditorium, were mesmerized. His own students, Moglen said, comforted themselves that even though their Gmail was read by Google software robots for the purpose of inserting ads that were theoretically relevant to the content of their e-mails, no actual humans at Google were reading their correspondence. No one could entertain such a delusion about Facebook. News accounts based on various internal documents and sources suggested a streak of voyeurism on the premises.
“Facebook workers know who’s about to have a love affair before the people because they can see X obsessively checking the Facebook page of Y,” Moglen said. Any inferences that could be drawn, would be.
Students “still think of privacy as ‘the one secret I don’t want revealed,’ and that’s not the problem. Their problem is all the stu
ff that’s the cruft, the data dandruff, of life, that they don’t think of as secret in any way, but which aggregates to stuff that they don’t want anybody to know,” Moglen said. Flecks of information were being used to create predictive models about them. It was simple to deanonymize data that was thought to be anonymized, and to create maps of their lives.
The free-software movement could be proud of the tools it had created and protected from being absconded. It was not enough. “We have to fess up: if we’re the people who care about freedom, it’s late in the game, and we’re behind,” Moglen said. “I’m glad the tools are around but we do have to admit that we have not used them to protect freedom because freedom is decaying.”
An illusion of convenience had eroded freedom, he said. “Convenience is said to dictate that you need free web hosting and PHP doodads in return for spying all the time because web servers are so terrible to run. Who could run a web server of his own and keep the logs? It would be brutal!” The crowd laughed: so many there actually did run web servers.
“What do we need?” Moglen asked.
“We need a really good web server you can put in your pocket and plug in anyplace. It shouldn’t be any larger than the charger for your cell phone and you should be able to plug it into any power jack in the world, and any wire near it, or sync it up with any Wi-Fi router that happens to be in its neighborhood.” Inside the little box would be software that would turn itself on, would collect stuff from social networks, and would send a backup copy of vital stuff—encrypted—to a friend’s little box.
It all might have sounded far-fetched, except that the plug-in computers were already being made; they cost ninety-nine dollars, a price that was sure to drop, and needed only the right collection of free software to run them. He ran through the requirements: a program for social networks, for blogging, streaming music, and so forth. The servers of the world were already running on the free software of GNU/Linux. “The bad architecture is enabled, powered by us,” Moglen noted. “The re-architecture is, too. If we have one copy of what I’m talking about, we’d have all the copies we need. We have no manufacturing or transport or logistics constraints. If we do the job, it’s done. We scale.”