Personal sovereignty—the power to control your own thoughts, ambitions, resources, and lawful actions—surely does require safety from physical interference, especially by the government or other puissant powers. (Recall how Justice Brandeis emphasized that the most crucial form of privacy is not secrecy but “the right to be let alone.”)
And yes, those powers might coerce you by uncovering your secrets, when secrecy is the norm, and above all when their own cryptic veils remain secure.
But in an environment of transparency, where officials and CEOs must reveal everything down to their tax returns and billing records, the average citizen’s freedom will not be enhanced by maintaining a private right to secrete, plot, and ultimately conspire against his or her neighbors. Such a right will not enhance the average person’s freedom for one simple reason: the rich and powerful are sure to be far, far better at exploiting that right than little people ever will be, any time, any place.
Ultimately, the average person’s secrets will be like open books to the mighty, no matter how many mattresses they are stuffed beneath, or which off-the-shelf encryption program shrouds them. Meanwhile, the castle walls of the aristocrat will remain as opaque as stone, guarded by the very same “privacy laws” that were supposed to protect the rest of us.
Alas, the perception of same-breath equivalence between freedom and privacy leads some strong privacy advocates to the bizarre conclusion we saw earlier—that only government is untrustworthy. By implication, only our public officials (already answerable to aggressive media and regular elections), need to be watched lest they lie, cheat, or cover up crimes and mistakes. EFF cofounder John Gilmore expressed this implicit assumption in discussing the Clipper controversy: “The ultimate goal of key escrow is to place the rights of the state over the rights of the individual. The ultimate goal of strong encryption (on the other hand) is to place the rights of the individual over the rights of the state.”
Gilmore is an articulate spokesman for liberty, but here he neglects to consider the ideal role of the state: an agent that serves, and is controlled by, a vigorous, diverse, and skeptical citizenry. True, we may still be a long way from perfecting that esteemed goal, but reflex anti-authoritarianism should not blind us to the great progress that has already been made in the right direction. Anyway, we can only increase our skill at working such a synergy through practice, by acting as if we are all owners, sharing the same useful tool.
Moreover, in articulating a well-tuned contempt for one center of authority, Gilmore neglects to consider the reason states exist in the first place. To paraphrase Alexander Hamilton’s aphorism (see “An Open Society’s Enemies”), we use government to constrain each other, because each of us has very good reason to fear injustice at the hands of a great many other individuals. Injustices that would become instantly and painfully palpable if those democratically defined constraints ever vanished.
What if it is the cyberpunks, rather than the cypherpunks, who have it right? In the long run, William Gibson and other visionary novelists may be correct in forecasting wimpy governments during the coming age, an era when those with the cash will make the rules. As Janet Rae-Dupree of the San Jose Mercury News recently put it, “Orwell’s vision of a Big Brother government was off in one major respect: Corporate America is insinuating itself into our lives even more than government has.” Making a similar analogy, Representative Edward Markey said, “Big Brother has simply subcontracted out to corporate America.”
Despite widespread evidence of nongovernment abuses, some strong privacy proponents seem to notice just one threat to liberty. They believe that the principles of open access that underpin the Freedom of Information Act should apply just to civic institutions, and not those whose sole declared ambition is acquiring wealth at any cost.
Though I lean toward a libertarian view on the free availability of information, I cannot simply brush aside the concerns of the FBI or Interpol that the inability to control the spread of certain informa- tion can lead to the mass murder of innocent people. The stakes are larger than they have ever been. It is one thing to say we don’t like big government and we don’t want Big Brother looking over our shoulder. But do we like the alternative of a world where the most ruthless and most depraved can gain access to the means of mass destruction, apply them and get away with it?
ALVINTOFFLER
We’re not ultimately more safe if we’re absolutely safe from the government, but not safe from private violence.
AKIL AMAR, YALE LAW SCHOOL
THE SINGAPORE QUESTION
Another champion of strong privacy, Tom Maddox, makes an argument emphasizing a different equivalence sign, but reaching similar conclusions. Maddox contrasts contemporary America with the island republic of Singapore, where $500 fines for spitting, or failure to flush a public urinal, have reduced the incidence of certain unappealing behaviors, but at the cost of dramatic restrictions on personal freedom. The situation in Singapore received widespread attention in 1994, when a young American, Michael Fay, was sentenced to several strokes across the buttocks with a rattan cane in punishment for vandalizing cars. Talk shows in the United States roiled with clashing opinions, from those calling Fay’s punishment uncivilized to others who, according to Maddox, envy Singapore as
a society virtually free of the kinds of routine semi-barbarism that often characterize life in American cities: littering, graffiti, muggings, robbery, theft, and so on. [Supporters of corporal punishment] ask how can the people of the United States presume to condemn practices in Singapore when the fruits of liberty in this country have become so noxious, perhaps even poisonous.
Maddox goes on to present a quandary he calls “The Singapore Question.”
“How much chaos are you willing to endure in the name of
liberty? Or how much liberty are you willing to forfeit in order
to secure a more orderly society?”
Maddox presents us with a vivid and attractive dichotomy. Attractive, because it poses a challenge that we are invited to answer in just one way—by proudly and courageously choosing freedom over order. By proclaiming our fidelity to personal sovereignty, even if some will abuse that sovereignty to become obnoxious or dangerous to their neighbors. John Gilmore put the idea dramatically when he said, “We favor law‘n’ chaos ... we’d rather have more drug dealers and fewer bureaucrats.” But the same deep assumption is also shared by many establishment figures, such as international columnist William Safire, who often cites Singapore when explaining the “price” we must pay for freedom.
Is that our sole and obligate choice, chaos versus tyranny? If so, I would be among the first to join Gilmore, Safire, and an impromptu army of outraged anarchists, righteously clamoring for freedom, even at the heavy cost of turmoil and crime. As with the updated Pascal’s wager, I’ll choose dangerous liberty over coddled despotism any day. It seems a worthwhile trade-off.
But the “Singapore Question” is a false dichotomy! It arises more out of sour romanticism than any reasonable argument. Worse, in proclaiming that we must either be slaves or barbarians, this tendentious posture speaks ill of human nature at its deepest level. It is a view more dour, pessimistic, and patronizing than the darkest cyberpunk dystopia, implying that we have no hope of escaping two opposite but equally hellish destinies.
Fortunately, one can easily show that there is no one-dimensional spectrum, ranging neatly from prim totalitarianism to crime-ridden anarchy. Many cultures have won the label “civilized” through generally enlightened behavior by their citizenry, without constantly being policed by hall monitors in jackboots. As in the case of Denmark during World War II, some societies earned the title despite jackbooted despots, whom they resisted fiercely while retaining profound traits of civility and decency.
On the other hand, each of us can name examples of nations that mixed oppression with violent tumult, such as the Zaire of Mobutu Sese Seko and the later-renamed Congo, or contemporary Peru, racked by ruthless civil war.
In fact, chaos appears to mix quite well with many kinds of tyranny. Even Singapore has trouble living up to its vaunted reputation for order, as attested by observant visitors who see numerous gated and guarded compounds, innumerable homes and apartments with bars covering the windows, and multiple locks on countless front doors.
The deep premise underlying Maddox’s contrived dilemma is as insidious as it is patently untrue. For instance, it is not freedom that empowers vandals, thieves, muggers, and rapists in late twentieth-century America. These malefactors have no such lawful right, no sanction or protected liberty to pillage and terrorize. Those behaviors are already proscribed by laws now on the books. Steep punishment only awaits their being arraigned and proved guilty under law.
Just one thing stands between those miscreants and justice. That one paramount requirement is that they must first be caught. It seems such a simple notion. And yet, amid all the acrimonious debate and recriminations over crime in America, this point appears to be missed by both right and left. Consider the most recent general statistics: • Out of every 100 felonies committed in the United States, criminologists estimate that roughly 33 are reported.
• Out of the 33 reported, 6 are “cleared” by arrest and filing of charges.
• Out of the 6 thus cleared, 3 are prosecuted and convicted, while the others are found innocent or dismissed for lack of evidence.
• Out of the 3 people convicted, 1 person gets prison and 2 get probation.
• The convict has about a 50 percent chance of receiving a sentence of 5 years or more.
Now consider which of these phases receive attention from our politiclans. Conservatives keep demanding a spiral of increasingly severe criminal penalties, despite evidence that any sentence greater than ten years is perceived as pretty much the same by most culprits. Beyond that, malefactors have just one desperate priority: to avoid apprehension, whatever the cost. When the state of Florida tried to crack down on armed robberies by raising the penalty for crimes committed with a firearm, the murder rate of convenience store clerks apparently increased. Robbers are said to have reasoned that if they killed the witness-victim, they stood a better chance of eluding capture. Against this benefit, the added potential penalty for murder seemed inconsequential.
Liberals, on the other hand, tend to concentrate on the social causes of crime. But while this emphasis may be laudable for other reasons, it will never have much pragmatic effect on felony rates as long as impunity reigns, down on the street. If crime pays well, it will be useless preaching to children that criminals should not be role models.
In fact, the statistics we just looked at clearly indicate where the criminal justice system is least effective. Of all the stages listed, it is the miserable 18 percent “clearing” rate—discovering and arresting perpetrators—that bears the greatest responsibility for crime going unpunished. This failure of swift apprehension is what many criminologists see as tipping the “deterrence equation” toward ineffectiveness. In comparison, severity of punishment is a much smaller factor.
Just one indispensable ingredient enables sociopaths to wreak havoc, and it is not freedom. Rather, it is a pervasive cloak of anonymity that lets villains commit acts of barbarism, careless of any real likelihood that they may be held accountable by their neighbors or the law. If protected by darkness, or by masking their identities in a crowd, miscreants will prosper no matter how many fierce, Singapore-style laws a panicked citizenry frantically passes.
Without that shielding cloak, lacking that shroud of hidden identity, criminals would shudder under the light. Crime could not thrive. Fear would ebb. And with lessened anxiety, the public might even be persuaded that we need fewer intricate laws, not more. This is not wishful thinking. Historical precedents support exactly this direct, rather than inverse, trade-off between security and freedom, cases where fear has risen in lockstep with repression, or when both liberty and a sense of safety prospered together. (Recall the earlier examples showing that the worst tyrannies almost always followed chaotic episodes under weak governments.)
We could take advantage of this trade-off, but only if we are not hobbled in advance by absurd assumptions about human nature.
A Need for Pragmatism
Assume for a moment that believers in the Singapore Question are right. Suppose we face an either-or choice between stifling paternalism and liberated anarchy. Let us also posit that the “right” decision is anarchy.
Ah, but just because it is right, will that necessarily be the selection made by the public, especially if they are ever afraid during a time of dire stress?
As a mental experiment, let’s go along with FBI director Freeh and try to envisage what might have happened if those bombers had actually succeeded in toppling both towers of New York’s World Trade Center, killing tens of thousands. Or imagine that nuclear or bio-plague terrorists someday devastate a city. Now picture the public reaction if the FBI ever managed to show real (or exaggerated) evidence that they were impeded in preventing the disaster by an inability to tap coded transmissions sent by the conspirators. They would follow this proof with a petition for new powers, to prevent the same thing from happening again.
Such requests might be refused nine times in a row, before finally being granted on the tenth occasion. The important point is that once the bureaucracy gets a new prerogative of surveillance, it is unlikely ever to give it up again. The effect is like a ratchet that will creep relentlessly toward one kind of transparency, the kind that is unidirectional. A one-way mirror, under which we are all watched by officials, from on high. The place that we called city number one at the beginning of this book.
Even many of those who express distrust of government admit the trend is unstoppable. Following the disaster that destroyed TWA flight 800 near New York City in July 1996, Speaker of the House Newt Gingrich said, “I believe the more there is terrorism, the more pressure we’re under to find systematic ways to solve it.” Other government officials have made pronouncements that should serve as weather warnings. • Vice President Gore: “World wars have been won by advantages in cryptography and we are not entitled, having taken the oath that President Clinton and I have taken to protect and defend the United States of America, we are not entitled to throw caution to the wind and say, ‘Well, commerce is the only thing that matters here.’ We have to respect the need of our law enforcement officers and national security agencies to be able to protect our national security and so we have been in vigorous negotiation with the industry.”
• The Justice Department wants to be able to determine the location of a cell phone caller within a half second and determine whether the user has sent or received voice mail or made conference calls. All these capabilities lie within technological reach (and some have already been used in Switzerland). The deputy director in charge of the FBI’s New York City office said, “The privacy people say we shouldn’t have this information, but the notion that we in law enforcement should not be able to take advantage of the technology is a crazy notion.”
• Upon learning that a complete tutorial on bomb making is available online, including diagrams and tips for passing though airport security, Senator Dianne Feinstein declared, “When technology allows for bomb-making material over computers to millions of people in a matter of seconds, I believe that some restrictions on free speech are appropriate.”
• Or take this comment made by former FBI deputy director for investigations, Oliver “Buck” Revel: “If we are unsuccessful in preventing significant acts of terrorism because of a failure to take prudent precautions, the ensuing public demand for action could result in Draconian measures.”
These sample statements range from prudent and reasonable to somewhat chilling. What they share is a general outlook that seems at first sight to be diametrically opposed to that held by many crypto-advocates—a view of government as an appropriate and necessary defense against those who might bring civilization crashing down around our heads.
And yet, th
ere is a commonality of spirit that neither the hackers nor the bureaucrats would ever willingly acknowledge. Each of the officials quoted here sees the tribe they are part of (government) in a virtuous light, while exhibiting suspicion that some “others” (foreign nations or terrorists) will accumulate the power to do harm. Their natural urge is to use enhanced vision to control that perceived threat, just as the cypherpunks would rein in the menace they worry about—government itself. Both sides say, “You can trust me. The real danger is over yonder.”
The consistency of this pattern amply demonstrates the chief point made in chapter 5: no individuals can be relied upon to hold themselves accountable.
That is something we must all do for each other.
But let’s get back to the question at hand, which is, can we prevent some future panic or security crisis from alarming the public so much that it willingly surrenders some or all of its freedom, in hope of escaping mortal danger?
Now it happens that I agree with the rebuttal of Pascal’s wager. Hypothetical events, even potentially dire ones, should concern us far less than defending liberty. On the other hand, we should also contemplate whether our pious philosophical positions are robust enough to withstand even one disastrous event. (And we will surely experience many disasters, over the years ahead.) Will the public want to hear Platonists prattle ornate ruminations about dead French philosophers, while watching some horrific scene of urban destruction on their television screens?