On the other hand, do you really want your great-grandchildren to read what you posted to att.abuse.recovery—or alt.sex.bondage—back in your days as a confused teenager? Perhaps some kinds of transparency should be put on the table for discussion—and then left alone.
In fact, an argument can be made for the opposite measure: forgetfulness! For letting the past swallow up uncountable little mistakes that weren’t criminal, but nevertheless can pile up in memory as great, simmering heaps of remorse and/or resentment. There is already a tradition in many library systems to purge borrowing records automatically as soon as each book is returned. This is not done primarily to stave off tyranny, but to give clients and readers a little more peace of mind. Perhaps the same principle might apply to other records in the future. If, after twenty years or so, nobody has come up with an accountability-related need to look at a given file, then it might be consigned to dust, and the electrons freed to participate in different bits and bytes.
Earlier we saw that cameras are becoming more like us—more numerous, more “curious,” and capable of lying. Maybe the computers and capacious databases will join this trend, learning how to both forget and forgive.
If it seems at times that I am fence straddling, that is because I do not claim to have all the answers. While this book makes strong contrarian points about general principles of freedom and accountabiliy, the details have been left somewhat murky, because that’s the way life is. Despite the simplifying rhetoric of idealists and ideologues, the process of finding pragmatic solutions will always be a messy one. In the previous example, where we discussed time limits versus forgetfulness, I can see arguments for both sides and would not want either proposal put into universal effect without a lot more discussion, criticism, and plenty of pilot studies. That is how “neat ideas” get tested and the foolish majority of them eliminated. So it is with encryption.
The reader will note that I got all the way through chapter 7 without once elucidating how I would solve the problem typified by the Clipper chip, key escrow, and anonymous remailers. I chided government arrogance and crypto-advocates’ myopia, as well as the dangerous logic of cruel dichotomies, but made no specific suggestion to break the deadlock.
The primary reason is that I feel the situation, for the next few years at least, is a foregone conclusion. Governments will keep floating proposals, pushing legislation, promoting treaties, and accomplishing very little that is not superficial or cosmetic. Social forces within the neo-West will ensure that technological momentum carries us forward, into a world of chaotic diversity, with a thousand innovative crypto-packages being offered by as many individuals and fly-by-night companies. Ciphering has already moved into the field of voice communication by telephone. Increasing numbers of e-mail messages arrive accompanied by “signatures” in PGP, or some other encryption package. A variety of cybercash systems are emerging to code and verify financial dealings, masking them from the scrutiny of outsiders. Anonymizer services thrive, and banking havens offer new ways for money to be not only laundered but dry-cleaned, pressed, and starched. Governments and citizenries will have to be pushed a lot harder against the wall before they make truly significant moves against such a tidal surge. For now, at least, the trend seems unstoppable.
Then why present this book at all? Because fundamentally, it is not about encryption, or the Clipper wars, or the Communications Decency Act, or any of those details. It is about the overall range of choices that face us during the coming decades, and some widely held assumptions that badly need contrarian discussion. If the reader comes away with more questions than answers, that is just fine.
And yet, if pressed to make a suggestion—what to do about encryption—I might put something on the table.
The worst thing is to rush into action before the consequences have been properly debated.
PERICLES OF ATHENS
A Modest Proposal
The government appears to say, “We don’t mind everybody using encryption at will. We just want a back door, in case we need to eavesdrop for the greater good.” To this, one “godfather of encryption,” Whitfield Diffie, responded for the cypherpunks: “Electronic communication will be the fabric of tomorrow’s society.... By codifying the Government’s power to spy invisibly on these contacts, we take a giant step toward a world in which privacy belongs only to the wealthy, the powerful, and perhaps, the criminals.”
Those are the “official” entrenched positions, and their flaws were discussed in chapter 7. But now suppose that, against all odds, a majority consensus starts to coalesce around a third approach, the idea that openness is better, and that accountability is an essential ingredient of liberty to be applied against government and other power centers alike. Imagine that some accord is reached in principle that secrecy should be reserved (with some wary skepticism) for only those situations where authentic and compelling personal needs outweigh a general priority for transparency.
My outrageous third proposal? Leaving cybercash out of the discussion, should we banish nonfinancial encryption from public dataways?
Such an idea would probably be unenforceable, given the cleverness of programmers at concealing bits among other bits (see chapter 9). Anyway, let us concede that encryption’s attractions will be irresistible to many, especially at the beginning, while it has a fashionable technoallure. Given what we know about human nature, a transcendentalist love affair with secret codes appears to be unavoidable. Any attempt to repress or prevent this would be impossibly quixotic, and would quite possibly spark a revolution led by society’s smartest. Long experience has taught us better ways of dealing with inevitable vices.
One approach is exhortation—and yes, asking people to start thinking of the greater long-term good can be effective in certain cases.
Another approach is to make the disapproved practice slightly unpleasant. Taxes on alcohol and tobacco products, for instance, are designed only in part to raise revenue (aimed at compensating for the damage they cause). A larger function is to make those products more costly and thus less desirable. Raising the price of cigarettes in this manner has been found to have dramatic effects on teen smoking. The trick is to avoid applying taxes so onerous that customers turn to an underground economy of smuggling or illicit manufacture. While libertarians may not like this concept in theory, it has proved to be an effective pragmatic way for societies to sway mass behavior gently away from noxious or harmful habits, without banning those habits altogether.
Suppose there were a small but real cost or penalty to encryption—perhaps an encryption tax or tariff—mere pennies on the megabyte, with a large allowance weighted in favor of small-time users, aimed at discouraging corporations or government officials from being secretive out of pure routine. It might be looked at as an environmental fine, like the recent practice of allocating “pollution credits,” harnessing free-market forces to keep a necessary evil constrained. As long as encryption carries enough probable cost to be slightly more irksome than openness, the common instinct will not be automatically to obscure. Instead, people may ask themselves, “Do I really have a good reason to conceal this?” Or, more to the point: “Why should I care if someone sees this?
I have nothing to hide.”
In fairness, and to foster openness where it is needed most, the same principle should be vigorously applied to government agencies, in order to put omnipotent institutions on a secrecy diet. Otherwise, they will surely conceal everything.
Either a slap on the wrist or a tiny tax, repeated often enough, may suffice to keep the Net mostly open and transparent, rather than a turbid cloud of reflexive secrets and paranoia. And that, in turn, would affect the whole atmosphere, the culture that people carry with them into business and discourse in this new world. A world where masks, trench coats, and sneakiness are at best seen as occasional necessary evils, perhaps a bit childish, or in somewhat bad taste—things we’ll eventually outgrow. A world where open, honest trade is the norm, and we are therefore fr
ee.
So much for my radically simple suggestion. It hasn’t a prayer of coming true, at least not in the near term. But there it is, on the table.
Government is not reason; it is not eloquence; it is force! It is a dangerous servant and a terrible master.
CEORCE WASHINGTON
PRAGMATIC TRANSPARENCY
A lot has changed since Washington’s day, but there is timeless truth to his warning. I have emphasized that I hold government in no less suspicion than civil libertarians and crypto-advocates do, just because I also see threats looming from many other directions. It is the unproven supposition that government can be controlled by blinding it that I find dubious. Those who love quoting Washington’s epigraph above seldom go on to present his complete views on the matter: “No man is a warmer advocate for proper restraints and wholesome checks in every department of government than I am; but I have never yet been able to discover the propriety of pacing it absolutely out of the power of men to render essential services, because a possibiliy remains of their doing ill.”
I cannot repeat too often what history shows, that the worst modern tyrannies arose in states whose regimes were weak and blind. In France (1789), Russia (1917), Italy (1926), Germany (1933), Spain (1936), and China (1949), outsiders conspired unchecked to seize power and converted formerly impotent governments into instruments of savage repression. Despite frequent claims to the contrary, there is no evidence that freedom can be preserved by hobbling a democratic, constitutional government and preventing officials from doing their jobs.
Accountability through transparency is the tool that has worked so far, but it needs constant reinforcing and fine-tuning. Countless public officials have tried to obstruct this glare of skeptical observation, covering their tracks, thwarting independent audits, or classifying everything in sight “top secret.” That is only human nature, and we should not take it personally. Nor should we permit them to succeed.
Transparency can be forced on government through law, by coercing (through voter pressure) legislators to pass codes like FOIA. Although there are official channels devoted to accountability within government, such as investigative committees, special prosecutors, and so on, the most effective technique has been to unleash interest groups (such as the ACLU, class action attorneys, the news media, or advocacy organizations) to file lawsuits and force FOIA compliance from reluctant bureaucrats. It doesn’t always work, but relentless T-cell attacks can wear down resistance like corundum. Many new tools of the Internet will surely help this wholesome process.
One chief point of this book has been to demonstrate that a similar immunological response should apply against any new or traditional center of power consolidation, wherever clusters of egotists might rationalize making secret decisions that affect us all, whether for personal aggrandizement or “for our own good.” Among these alternative hubs of influence, corporations represent a special class. In a codicil to the social contract that is still much debated, corporations have long been granted most of the rights of living citizens, even though a corporation’s financial muscle and potential immortality might better be compared to the traits of Olympian gods.
How is accountabiliy forced upon corporate titans? The standard bureaucratic solution—some huge government agency, staffed by battalions of inspectors carrying edict-filled binders—will almost certainly continue to be necessary here and there. Yet, that whole approach seems rather “un-hip” for the agile twenty-first century. We have been down that road, learning that maximalist meddling can take a free market to the brink of stifling ruin. Besides, in the long run we don’t enhance freedom by shackling one giant and giving another the keys. New methods should be found to supplement, and even supplant, centralized bureaucratic solutions to social problems.
Public Feedback Regulation
Fortunately, society has already begun exploring ways to hold corporations accountable without fostering vast bureaucracies. One of these techniques is called public feedback regulation, a trend recently analyzed by Ohio State University law professor Peter P. Swire.
For some years now, U.S. airlines have been required to publish ontime arrival records and statistics on lost baggage. This data goes to a government agency, which collates the figures and then does absolutely nothing about them except publish them in newspapers and on the Internet.
That turns out to be plenty! The effects of these twin regulations were dramatic within a few months of their enactment. Airlines scoring near the top of the lists brayed their status in advertisements, triggering frantic efforts at improvement by their competitors. Consumers were the winners.
Ironically, nothing like this exercise in openness has occurred in the area of airline safety records, which might presumably matter to the public even more. Indeed, this new kind of oversight has been applied in an apparently random, patchwork fashion elsewhere. Auto makers must give the Department of Transportation accident rates for each car model. Telephone carriers have to inform the Federal Communications Commission of service outages affecting over three thousand customers. Corporations must disclose the compensation rates of their top officers. In all of these cases, the most effective recipients of the correlated data are not bureaucrats but interested members of the public.
Under a 1975 act that was strengthened in the 1980s, lenders have been forced to disclose denial rates for home mortgages—broken down by race, sex, income, and census tract. These reports swiftly and dramatically highlighted long-standing patterns of discrimination, such as the fact that blacks were being turned down for loans a startling 2.7 times as often as whites with the same income and creditworthiness. As a result, nearly every national mortgage institution established fair lending policies, and a majority instituted outreach programs that have so far roughly halved the embarrassing discrepancies. Companies face a cynical but effective market incentive to at least try to stay out of the bottom third of this list.
Many chemical companies were in the habit of allowing routine release of toxic materials just up to the ceilings allowed under Environmental Protection Agency (EPA) rules, until the 1986 Toxics Release Inventory law started requiring publication of meaningful exposure levels, even legal ones. (Some states like California enacted even tougher disclosure rules.) This created competitive pressure to become cleaner than limits enforced by the EPA.
Regulations like these have been familiar in the stock market for years. Issuers of stock must disclose copious information to the Securities and Exchange Commission, especially when it comes to potential insider trading, exposing the data to scrutiny by both the general public and the “expert public” (brokerage houses).
These examples show how government, instead of distorting markets, can instead act, in the words of cyber-futurist Jaron Lanier, as a benign “vessel within which the fluid of the marketplace sloshes about, seeking the most efficient resting place.” Notably, public feedback regulation does not generally need coercive bureaucratic meddling, or even lawsuits, to change the behavior of the regulated entity. Rather, the aim is to end asymmetries or inequities in the flow of information, and then let market forces drive the results.
So when universities were told to disclose graduation rates for college athletes, public ridicule forced many of them to revamp their standards. Likewise, candidates for federal office have to disclose information about their contributors, enabling voters to judge by their associations (a partial measure that still has far too many loopholes). Moreover, we have seen the same process of narrowly defined accountability applied against private citizens, for example, Megan’s Law, under which convicted sex offenders must register their addresses for local parents to peruse. Other examples include states that publish the names of parents who have defaulted on child support payments, or of scofflaws who write bad checks or fail to pay parking tickets, or of “johns” picked up in prostitution raids.
Clearly, there comes a point where this kind of regulation can transform from a profound public good (helping consumers act a
s smarter agents in a free market) into a kind of vigilantism. It takes no leap of imagination to picture some majority using the technique to impose its own priggish standards on those who prefer a different lifestyle, by posting registers of people caught doing things that a homogenized mass of conformists don’t like. For example, at an Ivy League university, a conservative hacker collated and published the names of all those on campus who had subscribed to the Usenet group alt.sex.stories.
In other words, public feedback regulation is a partial solution, like so many others. Although a powerful tool that will likely be expanded beneficially, the method has intrinsic limits to its usefulness and legitimacy.
How can we prevent abuses, or a kind of tyranny by busybodies and prudes? The knee-jerk response is predictable. Forbid some types of list making! Tell people they can’t collect or publish certain kinds of information! Protect privacy by setting up legal barriers to knowing things!
Needless to say, there is a different approach.
Those who have the greatest case for guilt and shame
Are quickest to besmirch their neighbour’s name.
When there’s a chance for libel, they never miss it;
When something can be made to seem illicit
They’re off at once to spread the joyous news,
Adding to fact what fantasies they choose.
MOLIÈRE
Mutually Assured Surveillance
Sometimes the wisdom of a policy can be known only in retrospect. A strategy of reciprocal deterrence seemed extremely dangerous during the Cold War, forcing us all to live in fear of a nuclear apocalypse. But it worked. Although direct warfare between large nations had been routine for many thousands of years, this persistent nasty habit was abruptly broken when two mighty empires faced MAD—or mutually assured destruction—a threat of total annihilation if either of them initiated head-on conflict. Despite a litany of shameful and costly surrogate wars, this fifty-year experiment had one valuable outcome: it proved that people and nations may sometimes behave more soberly when they face inescapable accountability for their actions.