Event Date: 2 December 2013 Room B35 Birkbeck Main Building Birkbeck, University of London Malet Street London WC1E 7HX The
Event Date: 2 December 2013 Room B35 Birkbeck Main Building Birkbeck, University of London Malet Street London WC1E 7HX The
Event Date: 2 December 2013 Room B35 Birkbeck Main Building Birkbeck, University of London Malet Street London WC1E 7HX The
Event Date: 18 November 2013 Room 22/26 Senate House University of London London WC1E 7HU The Aristotelian Society presents: Dr Francesco Berto
Event Date: 29 November 2013 Room B01 Clore Management Centre Birkbeck, University of London Malet Street London WC1E 7HX The Birkbeck Institute for the
The Union, May it Be Preserved
Video: (WebM) (mp4) also available here
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A talk given by Eben Moglen at Columbia Law School on November 13th, 2013.
Previously in this series: Part I: "Westward the Course of Empire" and Part II: "Oh, Freedom".
Since we were last together, Mr. Albert Gore Jr.—once Vice President of the United States, and the man who got the most votes in the presidential election of 2000—said, in a public speech in Montreal, that Mr. Snowden had disclosed evidence of crimes against the United States Constitution.
Senator John McCain—who has never gotten the most votes in a presidential election—immediately came out, and said that General Alexander—whose departure has been scheduled, as we discussed last time—should be fired for allowing Mr. Snowden, who was a mere contractor, access to classified information. This sudden and unprovoked attack on the business model of Booz Allen Hamilton, and many of his campaign contributors was, of course, a beautiful example of the misdirection, misleading, and sheer lying we were talking about last time.
Mr. Gore—who was famously a journalist rather than a lawyer before he went into politics, which may account for his occasional love of truthfulness—was of course exercising layman’s privilege in talking about crimes against the United States Constitution. Much in the way that liberty has been taken with the law when people attack Mr. Snowden as a “traitor.” But Mr. Gore is using layman’s privilege. Many of the people who have abused the language with respect to Mr. Snowden are lawyers, and should have known better.
But for all that Mr. Gore was substantially closer to the truth than Senator McCain, it is Senator McCain’s comment which leads us closer to the heart of where we need to focus our attention now.
Our remaining time together will be short and in it we must attend to the solutions to some to the problems we have been living with. In order to think about those solutions we must be sure that we understand the full breadth of the problems. Senator McCain, in referring to the contractors, brought us face to face with the crucial role of the private surveillance market in the world, the data-miners and the listeners of commerce. Both those who are officially part of the intelligence establishment and those who aren’t. Senator McCain of course knows the vast surveillance-industrial state which has grown up since 2001—which was so beautifully documented by the Washington Post in its “Top Secret America” series in 2010—is impossible to imagine, the surveillance behemoth we now have in government cannot be conceived, without the contractors. That’s the center of that story. But it is in itself another layer—one might say a superstructure raised atop another structure altogether, one might call a base—which is the great data-mining industry that has grown up in the United States, to surveil the world for profit, in the last fifteen years. There we must pay our central attention before we discuss how to fix things, because there is the center of the problem.
The government abuse of the systems of surveillance and listening which have threatened to fasten the procedures of totalitarianism on everyone in the world without a US passport, this form of pervasive spying on societies which has come into existence, results from a larger environmental and ecological crisis brought on by industrial overreaching.
It is not the first, the last, or the most serious of the various forms of environmental crisis brought on in the last two centuries by industrial overreaching. Industrial overreaching has begun to modify the climate of the whole earth in unexpected and damaging ways. Against that enormity this is merely an ecological disaster threatening the survival of democracy.
So we need to understand the ecological harm done underneath, before we can begin to restrict the listening of government to its appropriate sphere, and abate those violations of the constitution to which Mr. Gore referred.
Now I spoke last time of the way in which we can decompose “privacy,” the concepts that we float around under that word, into three more specific parts: First, secrecy: that is, our ability to have our messages understood only by those to whom we intend to send them. Second, anonymity: that is, our ability to send and receive messages, which may be public in their content, without revealing who said and who listened or read what was said. Third, autonomy: that is, the avoidance of coercion, interference, and intervention by parties who have violated either our secrecy or our anonymity and who are using what they have gained by those violations to control us.
I would ask you also—in thinking analytically about this substance “privacy” whose continuation I am asserting is essential to democracy’s survival—I would urge you also to consider that privacy is an ecological rather than a transactional substance. This is a crucial distinction from what you are taught to believe by the people whose job it is to earn off you.
Those who wish to earn off you want to define privacy as a thing you transact about with them, just the two of you. They offer you free email service, in response to which you let them read all the mail, and that’s that. It’s just a transaction between two parties. They offer you free web hosting for your social communications, in return for watching everybody look at everything. They assert that’s a transaction in which only the parties themselves are engaged.
This is a convenient fraudulence. Another misdirection, misleading, and plain lying proposition. Because—as I suggested in the analytic definition of the components of privacy—privacy is always a relation among people. It is not transactional, an agreement between a listener or a spy or a peephole keeper and the person being spied on.
If you accept this supposedly bilateral offer, to provide email service for you for free as long as it can all be read, then everybody who corresponds with you has been subjected to the bargain, which was supposedly bilateral in nature.
If your family contains somebody who receives mail at Gmail, then Google gets a copy of all correspondence in your family. If another member of your family receives mail at Yahoo, then Yahoo receives a copy of all the correspondence in your family as well.
The idea that this is limited to the automated mining of the mail, to provide advertisements which you may want to click on while you read your family’s correspondence, may or may not seem already louche beyond acceptability to you, but please to keep in mind what Mr. Snowden has pointed out to you: Will they, nil they, they are sharing all that mail with power. And so they are helping all your family’s correspondence to be shared with power, once, twice, or a third time.
The same will be true if you decide to live your social in a place where the creep who runs it monitors every social interaction, and not only keeps a copy of everything said, but also watches everybody watch everybody else. The result will not only be, of course, that you yourself will be subjected to the constant creepy inspection, but also that everybody you choose to socialize with there will be too. If you attract others to the place, you’re attracting them to the creepy supervisory inspection, forcing them to undergo it with you, if they want to be your “friend.”
The reason that we have to think about privacy the way we think about the other ecological crises created by industrial overreaching is that it is one. It’s that we can’t avoid thinking about it that way, no matter how much other people may try to categorize it wrongly for us.
This is a particular problem for the lawyers. Because the lawyers are attracted by the shininess of transactional behavior. It gives them benefits and causes them—if they are professors—to lunch, and—if they are practitioners—to dine in elegance. So they are always delighted to discover a transaction that can be facilitated for a reduction of friction monetized as legal fees. Therefore lawyers are among those around the world most likely to be inclined to imagine that this nonsense about the transactionality of privacy is true. The important element in this is that what is transactional can be consented to, and so we get a lot of law about consent. Which, if correctly understood, is totally irrelevant and indeed fundamentally inappropriate.
We do not, with respect to clean air and clean water, derive the dirtiness of the air and water from the degree of consent. You can’t consent to expose your children to unclean or unsafe drinking water in the United States, no matter how much anybody pays you. Because the drinking water must be provided at a socially established standard of cleanliness, which everybody has to meet.
Environmental law is not law about consent. It’s law about the adoption of rules of liability reflecting socially determined outcomes: levels of safety, security, and welfare.
When you take a subject which has previously been subject to environmental regulation and you reduce it to transactionality—even for the purpose of trying to use market mechanisms to reduce the amount of pollution going on—you run into people who are deeply concerned about the loss of the idea of a socially established limit. You must show that those caps are not going readily to be lifted in the exhilarating process, the game, of trading.
But with respect to privacy we have been allowed to fool ourselves—or rather, we have allowed our lawyers to fool themselves and them to fool everybody else—into the conclusion that what is actually a subject of environmental regulation is a mere matter of bilateral bargaining. A moment’s consideration of the facts will show that this is completely not true.
Of course we acquired this theory not by accident. We acquired this theory because tens of billions of dollars in wealth had been put in the pockets of people who wanted us to believe it.
And on the superstructure that came from that base—that is, fooling us into the belief that privacy was not a subject of environmental concern—environmental devastation was produced by the ceaseless pursuit of profit in every legal way imaginable. Which of course is more ways than there ought to be, once appropriate ecological restraints either have been lifted or have never been imposed.
Now I’m going to focus my analysis on this point in a single corner of the diagram that one might set forth about the forms of privacy, the nature of the various forms of invasion and the ways in which the unrestrained industrial activity has resulted in catastrophe. And upon which government has based its own misdeeds. I’m going to focus only in one corner, which is the one of greatest importance and the one least discussed, namely the way in which this ecological catastrophe has destroyed the anonymity of reading.
There is a tendency, in discussing the privacy catastrophe arising from the behavior of the data-mining behemoths, to suggest that is has something to do with humanity’s over-publishing.
That the real problem of privacy is that kids are just sharing too darn much.
This is not only a form of misdirection and misleading, it’s a form of misdirection and misleading which is especially beautiful, because it hides the truth, both from the people it convinces and from the people who oppose it. It is an all-purpose obscurantist device.
When you democratize media, which is what we are doing with the Net, then obviously people say more—way more—than they were ever able to say before. As when first there was printing, people said more than they could ever say before.
This is not the problem. There may be too much saying or too little: this is to be left in a free society to the people who do the saying and the discouraging of saying, all of which is perfectly permissible and about which nobody should do any complaining or do any worse than complaining.
But really what has gone wrong is the destruction of the anonymity of reading, for which nobody has contracted at all.
Because of the way we built the Web—because we gave people programs called “browsers” that everyone could use, but we made programs called “web servers” that only geeks could use—almost everyone on Planet Earth has never read a webserver log.
This is a great failing in our social education about technology. It’s equivilent to not showing children what happens if cars collide and people don’t wear seat belts.
We don’t explain to people how a webserver log represents the activity of readers, nor how much—if you can aggregate a few hundred million webserver log entries together—you can learn about people, because of what they read: Not what they publish, what they read. That you can learn how long they spend on everything they read, how they read it, where they go next, what they do on the basis of what they’ve just read. If you can collect all that information in the logs, then you are beginning to possess what you ought not to have.
The anonymity of reading is the central, fundamental guarantor of freedom of the mind. Without anonymity in reading there is no freedom of the mind. Indeed, there is literally slavery.
I don’t ask you to accept that statement on my authority, I offer you the authority of a better man than I, who in 1845 published the first of his memoirs, called A Narrative of Frederick Douglass: an American Slave.
Frederick Douglass wrote in that first narrative of his life how his second owner, Mrs. Sophia Auld, when he was twelve began to teach him letters, and to read a few simple words. But she was vehemently discouraged by her husband Hugh, who told her, when he came to understand what she was doing, that “You cannot teach slaves to read for it, will make them uneasy in their slavery, unmanageable and sad.” Frederick Douglass said “I now understood what had been to me a most perplexing difficulty—to wit, the white man’s power to enslave the black man.” Thus he began to learn more to read, and when Ms. Auld, having accepted her husband’s direction in the matter, found him reading a newspaper, she tore it away from him lest he become unfit for slavery. Thus he was required, as he tells us, to learn to read in secret.
When hired out to Mr. William Freeland, he taught other slaves to read, until such time as the surrounding slave owners became aware of what he was doing, at which point the mob invaded his Sunday schooling place and beat the people and destroyed the school.
Reading was the pathway, Fredrick Douglass wrote, from slavery to freedom. But what if every book and newspaper he touched reported him?
You can go and read almost anything you want, almost any book on Earth, at the headquarters of one of the great American data-mining companies, provided that you let them watch you as you read every page. All books, for free, in the KGB library of Mountain View, California.
Everyone tries to surveil your reading.
If you have a Facebook account which you use, that is you log in from time to time, then not only will Facebook be surveilling every single moment you spend at Facebook—watching what you read, how long you read it, what you do next, where you go to, what you click on from there, etc.—but also every Web page that you touch that has a Facebook “like” button on it, whether you click the “like” button or not, will report your reading of that page to Facebook.
And if you go from one page with a Facebook “like” button on it to another page with a Facebook “like” button on it, Facebook will calculate how long you spend reading page number one, and so on ad infinitum down the chain.
If your newspaper, that you read every day, has Facebook “like” buttons or similar services’ buttons on those pages, then Facebook or the other service watches you read the newspaper: knows which stories you read and how long you spent on them, though you gave Facebook nothing about that at any time.
It’s not your publishing which is being surveilled, it is your reading.
Every time you tweet a URL, Twitter is shortening the URL for you. But they are also arranging that anybody who clicks on that URL will be monitored by Twitter as they read.
You are not only helping people know what’s on the Web, but also helping Twitter to watch everybody you helped read, so they read over everybody’s shoulder everything you recommend.
This isn’t transactional, this is ecological. This is an environmental destruction of other people’s freedom to read. You are urging them to abandon anonymity under the guise of helping them to find stuff they want to read. Your activity is designed to help them find things they want to read. Twitter’s activity is to disguise the surveillance of the resulting reading from everybody.
The primary actual difficulty, then, has not to do with anything that anybody publishes, or any so called “privacy controls” over who may read what anybody publishes. All of that is a side show, deliberately made complicated, deliberately made controversial, deliberately made full of stuff you’re supposed to think about so you never think about the thing that you really ought to know about, which is the surveillance of the reading.
Watch this hand over here in which I wave the flame-colored handkerchief, because otherwise you might be aware of where my left hand is with respect to … something you consider private.
This is the system that we allowed to grow up so quickly that we did not understand its implications. Which is how ecological crises happen. Because what can be done is done before what will happen next has been thought about. By the time it has been thought about, the people who understood it ain’t talking, because they’ve got an edge, and that edge is directed at you.
Upon this layer of commercial surveillance activity two things, then, happen with respect to government: the complicity and the thievery.
The data-mining companies believed, by and large, with respect to the United States and other governments around the world with whom they deal, that they were merely in a situation of complicity.
Having created unsafe technological structures that mined you, they thought they were merely engaged in quiet—that is to say, undisclosed—bargaining with power over how much of what they had on you they should deliver to others.
This was, of course, a mingled game of greed and fear.
But what the US data-mining giants of the West Coast basically believed, until Mr. Snowden woke them, was that by complicity they had gained immunity from actual thievery.
What sent both Facebook and Google into orbit since we were all last together—or rather, what had come out two weeks ago on the Wednesday that we were last together—was the news that their complicity had bought them nothing.
Everywhere outside the United States, the United States Government had hacked, tapped, stolen its way inside their charmed circle of encryption between themselves and their customers, in order to get to the data after it had been decrypted inside their own houses, their own internal networks, where they did not keep it adequately secure.
Naturally this bothered the people who had the impression—which Abraham Lincoln so vividly described with respect to his venal Secretary of War Simon Cameron—that “An honest man is a man who, when bought, stays bought.”
What they had expected by way of honesty from the American listeners they discovered that they hadn’t got at all.
The American listeners had perhaps learned their negotiation style from their Soviet counterparts. Their attitude evidently was, “What’s ours is ours, and what’s yours is negotiable. Unless we steal it first.”
Now I do indeed have sympathy for the outraged position of the American data-miners. Most of me feels that they earned the penalty of their complicity, but I am charmed by the naivete with which they disregarded what we (my comrades and I) told them for twenty years, which was that the listeners are not to be trusted, in anything they say about any of this.
Like the the world financial industry, they had taken the promises of the American military listeners too seriously. They had believed that there were limits to what power would do, ignoring that power not only had authorization and resources, but also instructions everywhere outside the United States to take anything that it could get. Ignoring also that the rules regarding the limitations of listening inside the United States under the rule of law had basically been lifted by an administration full of people who were politicizing fear and who were famously engaged in shooting first and asking questions later, whether they were governing the Empire or hunting with their friends.
So the problem is that, for the data-miners, the situation is not controllable, just as for the American listeners it is no longer controllable.
And it will only be controllable for Us if we bend our attention closely to the environmental nature of the problem that we face because environmental problems—like climate change, or water pollution, or slavery—are not solved transactionally by individuals.
If you want to get people out of slavery you’ve got to work together.
It takes a Union to destroy slavery.
If you want to solve the problem of the dirty air we breath, the unclean water that we drink, the changing climate under which we live, we must work together. We will not be able to solve those problems by ourselves.
The essence of the difficulty is Union.
Which, brings us, of course, to another characteristic of the great data-miners of the early twenty-first century, which is that there was no union of any kind around them.
They have become public corporations, but the kinds of environmental issues that we face with them, shareholder democracy has never had the slightest adequate effect in controlling. Though they are publicly-held businesses now, they are remarkably opaque with respect to all that they actually do. They are so valuable that who will kill the goose that lays the golden egg by inquiring whether their business methods are ethical?
A few powerful individuals control all the real votes in these places. Their workforces do not have collective voice. This is important with respect to environmental harms.
Mr. Snowden has been clear all along that the remedy for environmental destruction is democracy and he is correct about that. But Mr. Snowden has also repeatedly pointed out that, in an environment in which workers cannot speak up and there is no collective voice, there is no protection for the public’s ability to know.
So now we come to the particular intersection between the destruction of the right to read anonymously and the absence of unions within the organizations that surveil humanity.
When there is no collective voice for those who are within structures that deceive and oppress, then somebody has to act courageously on his own. Someone has to face all the risk for a tiny share of the total benefit that will be reaped by all.
Such a man may be walking the pathway from slavery to freedom. But any such man worthy of the effort will know that he may also be digging his own grave.
When there is no Union, we require heroism. Or we perish for want of what we should have known, that there was neither collective will nor individual courage to bring us.
It takes a Union to end slavery because a man who decides that the will of the Righteous commands us to free slaves will be called a traitor, and they will hang him—more than once.
This is why, when anonymous reading can no longer occur, we imperil the very thing that without Union is the only route to our salvation, while democracy itself strangles in the loop that its security vehicles have drawn around it.
Before Augustus, the Romans of the late Republic knew that the secrecy of the ballot was essential to the people’s right.
In every country in the world which holds meaningful elections, Google knows how you’re going to vote. It’s already shaping your political coverage for you, in your customized news feed, based upon what you want to read, and who you are, and what you like. Not only does it know how you’re going to vote, it’s helping to confirm you in your decision to vote that way—unless some other message has been purchased by a sponsor.
Without the anonymity of reading there is no democracy. I mean of course that there aren’t fair and free elections, but I mean more deeply than that that there is no such thing as free self-governance.
The crisis of the ecology attacks the root of democracy; Mr. Snowden’s point is valid across a bigger world than that Mr. Snowden came to talk to us about.
And as we try to turn our attention to what we do about all of this, we need to understand it is that ecological crisis we must address, not merely the problem of the power and the daring and the relentlessness of the American military listeners.
And we are still very ill informed. Because there are no unions out there working to raise the ethical issues in the data-miners, and we have too few Snowdens.
The futures of the data-miners are not all the same. Google as an organization has concerned itself with the ethical issues of what it does from the beginning. Mr. Page and Mr. Brin did not stumble on the idea that they had a special obligation not to be evil. They understood the nature of the power implicit in the situation.
We can say for sure that if we are to be transparent to these companies than they must be accountable to us. And we can say for sure that it will not be suitable for Google to present to us the proposition that they will do everything they can to protect the secrecy and anonymity of our email except that which is inconsistent with their reading it all themselves.
It is technically feasible for Google to make Gmail into a system which is truly secure and secret for its users. In which mail is encrypted—using public keys in a web of trust—within users’ own computers, in their browsers, and in which email at rest at Google is encrypted using algorithms to which the user rather than Google has the relevant keys.
This means donating Gmail’s scant profit to the world, consistent with the idea that the Net belongs to its users throughout the world. Which, in the long run it is good for Google to be seen not only to believe, but to act upon.
There are many, many, very thoughtful, capable, dedicated people at Google who must choose either between doing what is right or naming what is wrong.
The situation at Facebook is different. Facebook is strip-mining human society.
The idea of social sharing, in a context in which the service provider reads everything and watches everybody watch, is inherently unethical.
But we need no more from Facebook than truth in labeling.
We need to no rules, no punishments, no guidelines. We need nothing but the truth.
Facebook should lean in and tell its users what it does.
It should say "We watch you every minute that you’re here. We watch every detail of what you do, what you look at, who you’re paying attention to, what kind of attention you’re paying, what you do next, and how you feel about it based on what you search for.
“We have wired the web so that we watch all the pages that you touch that aren’t ours, so that we know exactly what you’re reading all the time, and we correlate that with your behaviour here.”
To every parent Facebook should say, “Your children spend hours every day with us. Every minute of those hours, we spy upon them more efficiently than you will ever be able to.”
Only that, just the truth. That will be enough.
But the crowd that runs Facebook, that small bunch of rich and powerful people, will never lean in close enough to tell you the truth.
So I ought to mention that since the last time we were together, it was revealed that Mr. Zuckerberg has spent thirty million dollars that he got from raping human society on buying up all the houses around his own in Palo Alto.
Because he needs more privacy.
I rest my case.
We will have a politics that requires of the States—as I said last time—that governments shall protect their people against spying by outsiders and shall subject their listening to the rule of law. We in the United States have a third political obligation, as citizens, which is to prevent our government from using its raw power and resources to subject to the procedures of totalitarianism every other society on Earth besides our own.
But we will have also a politics in the market, a politics of requiring the organizations with whom we deal to treat ethically the ecological substance of human existence. Not only the air, the water, the land, but the privacy of people and anonymity of reading and the freedom of the mind.
We will require this of them, not casually or doubtfully, but because the opposite is slavery. And we’re not going to fool around with that.
Albert Gore is putting pressure on some politicians to tell the truth. He is right that we must have a politics of truthfulness now.
Nine votes in the United States Supreme Court can straighten out what has happened to our law. There is nothing we need to do about those analysts who are not bad people other than to hold an election.
But the president of the United States has the only vote that matters concerning the ending of the war.
All of the governmental environmental destruction of privacy which is placed on top of the larger ecological disaster created by industry, all of this spying, is wartime stuff.
A great deal of confusion to which we shall pay more attention, the last time we are together, has been raised between “data” and “metadata.” As though there were a difference and “metadata” were less.
I need to explain to you in the simplest way I can why this is nonsense:
Illegal interception of the content of a message breaks your secrecy.
Illegal interception of the metadata of a message breaks your anonymity.
It isn’t less, it’s just different. Most of the time it isn’t less, it’s more.
The metadata misdirection is an important part of how we avoid discussing where the iron shackle really is. The anonymity of reading is broken by the collection of metadata.
It isn’t the content of the newspaper Mr. Douglass is reading that is the problem, it’s that he dares to read it.
The President of the United States can apologize to people for the cancellation of their health insurance policies. but he cannot merely apologize to the people for the cancellation of the United States Constitution.
He must do something.
The President must end this war.
The President must remove the various consequences that flow from the idea that we are at war because there are a few vicious criminals we are pursuing round the globe.
It was wisdom in Thomas Jefferson not to go to war with the Barbary pirates, just to smack them.
It was not wisdom to declare war in the Net, to deprive us of civil liberties under the concept of depriving sanctuary to foreign bad people.
It has not been wisdom to protract this war for twelve long years. The wisdom of this President ought to be to say that the war is over.
Because when you’re the President of the United States, you also cannot apologize for not being on Frederick Douglass’ side.
We have to protect the anonymity of reading.
We have every right to ask, respectfully but insistently, of the President that he shall stop this war.
That he shall cease from troubling us with the oppressive consequences of a mere symbolic declaration, that he shall cease from feeding the nightmare of the coalescence of government security with the strip-mining of society.
That he shall cease to treat our Net, which belongs to all the people of the world, as the property of the United States listeners, to be hacked, and tapped, and stolen in as necessary from the military point of view.
He must tell the truth: That only peace can sustain freedom, and that indefinitely protracted war leads only to slavery in the end.
We have more to do than that. His work can be done with a word. Ours requires the building of a Union—many Unions.
A man who brings evidence to democracy of crimes against freedom is a hero.
A man who steals the privacy of societies for his profit is a villain.
We have sufficient villainy and not enough heroism.
We have to name that difference strongly enough to encourage others to do right.
Mr. Douglass spoke my mind: “I will unite with anyone to do right and with no one to do wrong,” he said. In the end, that is how it happened, as it will happen for us.
We have an environmental problem. Like all environmental problems, it has technical, legal, and political components. We must address all of them in their full breadth, in order to bring ourselves to a successful resolution.
It is good that we have fire codes, and it is good that we have rules of liability that make manufacturers responsible if their building materials or their children’s clothing goes up at the first lick of flame. It is good that we have building inspectors, so that we try to keep track of who’s adding an illegal addition that they might rent out to nineteen or twenty poor defenseless people who might burn to death one night in a fire trap.
All of that is good, but it is very important that we have smoke detectors and fire-extinguishers that people can afford, that they can learn to use, and that will save their families’ lives when everything else doesn’t work.
We will need technical measures that provide people with inexpensive appliances, that they can actually use, that will help them to avoid being spied on. Large parts of the commercial surveillance structures I have been talking about are easily defeated using technologies commonplace among those who life’s work is technological in nature, but largely inaccessible to everybody else. We must popularize it, make it simple, cheap, and easy—and we must help people to put it everywhere.
As we must have political measures appropriate to each where we are and legal measures similarly carefully disposed.
What Mr. Snowden has done with respect to the technological measures is to explain to us precisely what we can use, given where the listeners are in their attempt to subdue everything.
What Mr. Snowden taught us—which is the specific subject of my last lecture—is how to offer people cheap, easy, accessible things that work.
With respect to the politics he has told us what we should have known ourselves, which is that democracy requires the truth be told to the citizens who vote. He has been restrained in his politics, because he has limited himself to that.
It isn’t only Fredrick Douglass, but also Thomas Jefferson, who will have hard time denying Mr. Snowden’s propositions. One has to be a lesser politician, I believe, than they to be willing to controvert what Mr. Snowden has said.
And about law. Well, there is lots to say, but the really important part of this, as we shall see next time, is that the United States is plentifully provided with lawyers, good ones, ones who mean to use the rules to protect freedom, ones who have acted if not precisely with heroism than at least with courage which deserves much praise.
The former general counsel of Twitter, Mr. Alexander Macgillivray, tried long and hard, and with great conscientiousness and dedication as we now know, to withstand layers of demand from power that other clients of other lawyers in Silicon Valley rolled over for very easily.
To Mr. Macgillivray, Twitter’s former general counsel, much thanks is due.
The Electronic Frontier Foundation, the Electronic Privacy Information Center, my own Software Freedom Law Center—which has helped to sponsor these lectures here—all have roles to play, and they are playing them aggressively in American society. If the rule of law is restored to listening, we will use it well. Not only for the benefit of people in the United States but around the world. Elsewhere, many courageous lawyers have come to gather around projects worthy of everybody’s praise and support. In India, the Software Freedom Law Center’s sister organization, lead by Ms. Choudhary who is here, are doing wonderful work. We will see elsewhere also many courageous lawyers at the forefront.
But we have seen none of these “whistle-blowers” outside the English-speaking world, nor have they come to us from industry.
It is a special quality of the dying rule of law in the English-speaking world that it encouraged heroism. Because bad as the risks were, they were not hopeless. Thus heroic people believed that courage is contagious, that if people act to reveal the truth, others will follow them towards the light.
Now we must prove them right. Because without Union, without heroism—without a willingness to understand that we must act together, not separately, to preserve freedom—then those who serve power with misdirection, misleading, with lies, will get ahead of us. Which must not happen.
Continue to "Part IV: Freedom’s Future"
©Eben Moglen, 2013.
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A talk given by Eben Moglen at Columbia Law School on October 30th, 2013
Previously in this series: Part I: "Westward the Course of Empire"
Since we were last here the press of the world has been full of information concerning the practices of the US listeners, and statements from Presidents, Premieres, Chancellors, and Senators on the subject.
Our purpose this time being to consider the political meaning of Mr. Snowden and the future he has brought us, we must begin by discarding for immediate purposes pretty much everything said by the Presidents, the Premieres, the Chancellors, and the Senators. It has been a remarkable display of misdirection and misleading, and outright lying. We’ll come back to it, but it will not serve us at the outset.
It is indeed really what doesn’t matter—all this froth, that we’ve been reading since we were last together, from the respondents. We need to keep our eye on the thinking behind Mr. Snowden’s activities—which he has done much more to explain since we were last together—and we need to understand the message he has sent us. And so, for that purpose, I come again before you.
What matters most—and what it has been the goal of the Presidents, the Chancellors, the Premieres, and the Senators not to say—is how deeply the whole of the human race has been ensnared in this process of pervasive surveillance that destroys freedom.
The fastening of the procedures of totalitarianism on the human race is the political subject about which Mr. Snowden has summoned us to an urgent inquiry. And it is that inquiry which it has been the goal of pretty much everybody responding on behalf of any Government or State not just to ignore but to obscure.
We begin therefore where they are determined not to end, with the question whether any form of democratic self-government, anywhere, is consistent with the kind of massive, pervasive, surveillance into which the Unites States government has led not only us but the world.
This should not actually be a complicated inquiry.
For almost everyone who lived through the 20th century—at least its middle half—the idea that freedom was consistent with the procedures of totalitarianism was self-evidently false.
Those who fought against it, those who sacrificed their lives to it and had to begin again as displaced persons and refugees around the world, and those who suffered under the harrow of it were all perfectly clear that a society that listens to every telephone call, spies on every meetings, keeps track of everybody’s movements is incompatible with a scheme of ordered liberty, as Justice Benjamin Cardozo defined American constitutional freedom.
But at the beginning of the 21st century, what seemed clear and absolutely unnecessary to inquire into in the 20th is now, apparently, a question.
So we had better address it directly.
Many millions of people in the United States have in their family tree, in their genetic material, in their understanding of the world, visceral awareness of a system that tracked their ancestors’ movements, and for even the most trivial journey required they have a pass. A system that gave some people the right to scrutinize every communication of everybody else, that made almost every home subject to intrusion and disruption at the whim of illegitimate power. For those who have tasted the bitterness of slavery in their past, it should not be necessary to explain why powers—however velvet the glove in which they are contained may be, however invisible the system within with they are embedded—that keep track, that listen everywhere, whose intrusion knows no boundaries, are the powers of masters over slaves.
We should therefore not need to inquire, carrying as we do our own history closest, whether a system of power which listens everywhere, which can go everywhere, which keeps track of everybody’s thoughts, feelings, and speech, is inconsistent with freedom. We know, because we have lived on both sides of such a system. And we know its evil.
But let us forget what we have learned by bitter experience, what we carry in our own breasts, let us forget it, let us put it aside, let us be law professors, shall we, and political scientists:
For analytical purposes let us take this word "privacy," that we are growing accustomed to using quite freely, and see what it really is.
Privacy—as we use the word in our conversations now all around the world, and particularly when we talk about the net— really means three things.
The first is secrecy, which our ability to keep messages "private," so that their content is known only to those who we intend to receive them.
The second is anonymity, which is our ability to keep our messages—even when their content is open—obscure as to who has published them and who is receiving them. It is very important that anonymity is an interest we can have in both our publishing and our reading.
The third is autonomy, which is our ability to make our life decisions free any force which has violated our secrecy or our anonymity.
These three are the principle components of the mixture that we call "privacy". With respect to each, further consideration shows that it is a precondition to the order that we call "democracy", "ordered liberty", "self-government", to the particular scheme that we call in the United States "constitutional freedom."
Without secrecy, democratic self-government is impossible. Because people may not discuss public affairs with those they choose, excluding those with whom they do not wish to converse. If you have lived in a society where in every dorm room, every work place, every public transport vehicle, there was an agent, whose job it was to listen and inform, once you think about the consequences for political conversation in that neighborhood, you need go no further. If you are fortunate enough never to have had that experience, most of your comrades around the world can enlighten you.
Anonymity is necessary for the conduct of democratic politics. The United States Supreme Court took until 1995 to recognize it, but it did, and to Justice Stevens we a owe clear statement of the importance of anonymous political conversation at the core of the First Amendment. The cases in which the Court has considered the anonymity right are precisely cases about political communication, central cases about the exercise of democracy. It is, as Justice Stevens noted in McIntyre, not terribly surprising that our greatest artifact of divine constitutional wisdom—a set of political pamphlets penned by three very slippery characters called Hamilton, Madison, and Jay that we refer to as The Federalist Papers—were of course published under a pseudonym.
That autonomy is vitiated by the wholesale invasion of secrecy and privacy, that free decision making is impossible in a society where every move is monitored, those of you who have friends in North Korea may enquire into directly, if you please. But equally, any conversation with those who lived through 20th century totalitarianisms or any contact with the realities of American slavery will surely clear it up for you.
In other words—though it shouldn’t be necessary to demonstrate, though we ought to have taken the bitter experience of American history in the 19th century and the history of the West in the 20th for sufficient demonstration—for those who really do like ignoring the facts and working it out abstractly, with chalk, privacy is a requirement of democratic self-government. The effort to fasten the procedures of pervasive surveillance on human society is the antithesis of liberty.
This is the conversation that all the "Don’t listen to my mobile phone!" has been not about for the last two weeks. If it were up to power, the conversation would remain at that phony level forever.
So we are, at the moment—thanks to Mr. Snowden, who has precipitated what even his adversaries now like to call a "necessary conversation"—we are now in a necessary conversation with parties on the other side who do not wish to explain exactly what they do. They have advanced, and will advance, no convincing argument that what they do is compatible with the morality of freedom, with US constitutional law, or with the human rights of every person in the world. Indeed, they will not offer any argument. They will certainly not offer a defense. They will instead attempt, as much as possible, to change the subject, and, wherever they cannot change the subject, to blame the messenger.
But what you have seen around the world in the last two weeks is the evidence that this is extremely unlikely to work.
And so we need to consider the political environment created by what has happened, before we can begin to address the more or less empty rhetoric that has been assigned to the Presidents, the Chancellors, and the Premieres.
"Why are they all operating in this way," you may ask nonetheless, "as though everybody were on the same side?"
Here the history is very clear and remarkably available. One does not need access to classified documents to see—including in records we will be making public as part of our effort in "Snowden and the Future" over the next two weeks—how the military and strategic thinkers in the United States adapted to the end of the Cold War by planning pervasive surveillance of the world’s societies.
In the early 1990’s, in documents that are in no way secret, the US strategic and military planners made clear in a range of fora—from the think tanks, the Pentagon, in research reports and conference proceedings—that they foresaw, as indeed we now observe, a world in which the United States had no significant state adversary, and would be instead engaged in a series of "asymmetric conflicts." That was the phrase, meaning "guerrilla wars."
In the course of that redefinition of the US threat assessments and strategic posture after the end of the cold war, the American military strategists and their intelligence community colleagues came to regard American rights in communications privacy as the equivalent of sanctuary for guerrillas.
The documents from 1992, 1993 are very clear in describing precisely that relationship. It was understood that in future asymmetric conflicts the adversaries—that means people, you understand, bad people committed to bad activity but small groups of individuals affiliated with and possessing the power of no state—would use communications facilities that benefited from American civil liberties as sanctuary, and that it would be necessary for the US military, the listeners, to go after the "sanctuaries."
Of course, this was the position of military strategists and their listener colleagues. It was not national policy. But it was an important albeit relatively quiet part of the policy formation discussion. There were, however, political adults in the room. And while the United States government considered various efforts at improving its ability to listen to encrypted communications in the mid-90’s—the Clinton administration had the Clipper Chip initiative for example. There were also significant efforts to ensure that domestic law enforcement would not be disadvantaged by the movement to digital communications. These lead in 1995 to the CALEA statute mandating the availability of "wiretapping" technical facilities in digital telephone systems that didn’t natively offer them—a compromise which split the young Electronic Frontier Foundation into two camps, one of which became CDT.
Although there were these steps taken to facilitate not only the work of the domestic law enforcement agencies but also the listeners within the United States—this we now know, as we see the evolution of the FISA statute in the FISA court, secret judicature we couldn’t see before—still and all there was a clear understanding. This idea of denying "sanctuary" by breaching American civil liberties in US-based communications was not part of the senior policy-making outlook—it was part of what one team constantly pushed for.
This they did after the first World Trade Center bombing, after the Africa embassy bombings, after the Cole. The whole pervasive surveillance system, not just the Patriot Act but all the pieces that we now understand surrounded it in the secret world’s understanding, were constantly advocated for at the end of the 20th century, and as constantly rebuffed.
And then, as we saw last time, at the opening of the 21st century a US Administration which will go down in history infamous for its tendency to think last and shoot first bought—hook, line, and sinker—the entire "denying sanctuary," pervasive surveillance, "total information awareness" scheme. Within a very short time after January 2002, mostly in secret, they put it all together.
The consequences around the world were remarkably uncontroversial. By and large, states approved or accepted. Some of this happened because the United Stated government was even then using quite extraordinary muscle around the world—after September of 2001 you were either with us or you were against us. But it also happened because so many other governments had come to base their national security systems crucially on cooperation with American listening. And after the declaration of the new Global War on Terror, that became only more true.
By the time the present Administration had settled into office in the United States, as one senior official with relevant responsibility described it to me half-way through the first term, in our government to government relationships about the Net, "all of us—-the Chinese, the Europeans, and Us," that was ‘all of us’ at the table, "—we all agree about one thing, about exfiltration." (This is the listeners’ word for spying: "exfiltration." They "exfiltrate" data off our networks into their warehouses.) "We all agree," this official said, "about exfiltration: everybody agrees that it can’t be stopped and it shouldn’t be limited. We disagree about what kinds of intervention," that is, breaking things in the Net, "should be allowed."
The important point for present purposes in this one conversation (which could be drawn just as well from many other unclassified sources) was that senior US policy makers thought there was general consensus around the world that everybody could listen to everybody’s societies; it could not be stopped it shouldn’t be limited. The Chinese agreed. The US agreed. The Europeans agreed, which really meant of course that they were dependent on US listening and hadn’t a lot of power to object.
Nobody told the people of the world.
What was common understanding among the policy-making elite—who governed among them still only about a third of the world’s population—was that global civil society was a free fire zone for everybody’s listeners, and there wasn’t anything to be said about it—particularly not to all those people, who were supposed to not know.
This is the condition upon which the whistles started to blow all over the field, as I said last time. Throughout the distressingly situational ethics of this, a few people—all of them in the English speaking world, all of the, people who came from societies with strong traditions of the rule of law, protection for whistle-blowers, some form of civilian political control over domestic security intelligence—courageous and indignant whistle-blowers began to speak up.
Mr. Snowden saw what happened to precedent whistle-blowers, and behaved accordingly.
What had opened by the end of the first decade of the 21st century was a gap between what the people of the world thought their rights were and what their governments had given away in return for intelligence useful only to thy have adopted a misleading metric; they think if a program produces anything it is justified.
Because of course the very essence of democracy is that it is for the people to judge what is justified with respect to invasions of their entrenched and fortified rights.
And I think that Mr. Snowden means—as certainly I and my comrades mean—that in the exercise of the democratic discretion to determine whether we wish to fasten these procedures of totalitarianism on other people in the world, that we should consider our values as extending beyond our borders.
We mean—and I think Mr Snowden means with us—that we should make those decisions not in the narrow, selfish self-interest that is raison d’etat, but with some heightened moral sense of what it is appropriate for a beacon of liberty to humanity to do.
We will speak, of course, about American constitutional law and about the importance of American legal phenomena—rules, protections, rights, duties—with respect to all of this. But we should be clear that, when we talk about the American constitutional tradition with respect to freedom and slavery, we’re talking about more than what is written in the law books.
We face now a global system in which the States have, almost without exception, agreed complicitiously to deliver over their people to a form of pervasive spying which we know is incompatible with our own liberty and with the liberty that we have frequently postured in the world as bringing to the human race as a whole. We know this. As individual citizens we are now aware. Mr. Snowden has made it impossible for us to ignore this fact unless we bury our heads so deep in the sand that we are likely to suffocate.
But we face two claims—you meet them everywhere you turn—which summarize the politics against which we are working. One argument says, "It’s hopeless, privacy is gone, why struggle?" The other says, "I’m not doing anything wrong, why should I care?"
And these—neither one of them a brilliant argument from a political point of view—these are actually the most significant forms of opposition that we face in doing what we know we ought to do.
In the first place, the premise of my being here before you is that it is far from hopeless. Mr. Snowden has described to us, as I told you last time, what armor still works. Mr. Snowden’s purpose was to explain to us how to distinguish between those forms of network communication that are hopelessly corrupted and no longer usable, those that are endangered by a continuing assault on the part of an agency gone rogue, and those which even with their vast power, all their wealth, and all their misplaced ambition, conscientious, and effort, they still cannot break.
Hopelessness is merely what you are supposed to get, not what you have to have.
And so far as the other argument is concerned, we owe it to ourselves to be quite clear in response. My own personal position I recommend to my comrades around the world: If we are not doing anything wrong. then we have a right to resist.
If we are not doing anything wrong, then we have a right to do everything we can to maintain the traditional balance between us and power that is listening. We have a right to be obscure. We have a right to mumble. We have a right to speak languages they do not get. We have a right to meet when and where and how we please so as to evade the paddy rollers.
We have an American constitutional tradition against general warrants. It was formed in the 18th century for good reason. It puts the limit of the State’s ability to search and seize at what you can convince a neutral magistrate, in a particular situation—about one place, one time, one thing—is a reasonable use of governmental power.
That principle was dear to the First Congress which put it in the Bill of Rights, because it was dear to British North Americans, because in the course of the 18th centuAnd so the constitutional tradition we should be defending, now, as Americans, is a tradition which extends far beyond whatever boundary the Fourth Amendment has in space, place, or time. We should be defending not merely a right to be free from the oppressive attentions of the national government, not merely fighting for something embodied in the Due Process Clause of the 14th Amendment after 1961, because of a trunk of smut left behind by a departing lodger in Mrs. Mapp’s boarding house in Ohio. We should be rather be fighting against the procedures of totalitarianism because slavery is wrong; because fastening it on the human race is wrong; because providing the energy, the money, the technology, the system for subduing everybody’s privacy around the world—for destroying sanctuary in American freedom of speech—is wrong.
And if we’re going to exercise our democratic rights in the United States as Mr. Snowden wishes us to do—and has given us the most valuable thing that democratic self-governing people can have, namely information about what is going on—if we are to do all that, then we should have clear in our mind the political ideas upon which we ought to be acting. They are not parochial, or national, or found in the U.S. Reports alone.
A nation conceived in liberty, and dedicated to the proposition that all men are created equal, enslaved millions of people. It washed away that sin in a terrible war We should learn from that, as we are called upon now to do.
The politics that we have as Americans are slightly more complicated, but they are fundamentally the same as the lines upon which our colleagues and comrades around the world must also move. Everywhere citizens must demand two things of their governments:
In the first place, you have a responsibility, a duty, to protect our rights by guarding us against the spying of outsiders. Every government has that responsibility. Every government has the responsibility to protect the rights of its citizens to be free from the intrusive spying of outsiders. No government can pretend to sovereignty and responsibility with respect to its citizens unless it makes every effort within its power and its means to ensure that outcome.
In the second place, every government around the world must subject its domestic listening to the rule of law.
Now this is the tragedy, where the overwhelming arrogance of the listeners has left the American government. The government of the United States could have held up its head until the day before yesterday and said that its listeners, unlike all the other listeners in the world, were subject to the rule of law. It would have been an accurate boast.
To be sure the rule of law even in the last generation was somewhat corrupted by secret judicature, and a court appointed by a single decision maker, and so on and so on. But the truth is that American listening was subject to the rule of law as no one else’s was in the world or is now.
For nothing, history will record, they threw that away. For nothing they threw that away.
But it is true everywhere—whether we are here, or we are in China or we are in Germany, or we are in Spain, or wherever we are—those two basic principles of our politics are uniformly applicable: our government must defend us against pervasive spying by outsiders, and our government must subject listening to the rule of law at home.
To the citizens of the United States a greater responsibility is given because we must act to subject our government to control in the listening it is doing to hundreds of millions and ultimately billions of people around the world. Ours is the government that is projecting immensities of power into the destruction in the world’s societies and ours is the government which must be put under democratic control with respect to that listening. It is our principles in favorem libertatis which must be the dominant principles in that story.
Freedom has been hunted round the glob war, a Net which no longer uses surveillance to destroy the privacy that founds democracy.
This is a matter of international public law. In the end this is about something like prohibiting chemical weapons, or land mines. A matter of disarmament treaties. A matter of peace enforcement.
Pervasive surveillance of other peoples’ societies is wrong and we must not do it. Our politics, everywhere around the world, are going to have to be based in the restoration of the morality of freedom, which it is the job of democracy to do.
The difficulty is that we have not only our good and patriotic fellow citizens to deal with, for whom an election is a sufficient remedy, but we have also an immense structure of private surveillance that has come into existence. a structure which has every right to exist in a free market but which is now creating ecological disaster from which governments alone have benefited. From which people have been rendered far less well off than they think they are, and than they should have been.
You don’t need today’s Washington Post on the subject of the massive interception of information flowing in and out of Google and Yahoo—and soon it will be Facebook and Microsoft’s cloud—as we begin to understand what government is doing with "the cloud." You don’t need any of that to understand that at the end of the day, we have to assess not only what the States have done, but also what unregulated enterprise has done, to the ecology of privacy
We have to consider not only, therefore, what our politics are with respect to the States but also with respect to the enterprises. This is the subject of our talk next time.
But for now we are left attending a puppet show in which the people who are the legitimate objects of international surveillance—namely politicians, heads of state, military officers, and diplomats—are yelling and screaming about how they should not be listened to. As though they were us and had a right to be left alone.
And that, of course, is what they want. They want to confuse us. They want us to think that they are us—that they’re not the people who allowed this to happen, who cheered it on, who went into to business with it.
The literature of our time has not been deceptive about this. If one reads John le Carre’s views about the security industry in Germany under the Global War on Terror (he, as you recall, had his actual experiences as an intelligence officer on behalf of the British government in Germany), if you look at what A Most Wanted Man says about the nature of the cooperation between the Germans and the Americans, and its effect on freedom, you will discover that after all everybody really did know—except you.
The purpose of secrecy was to keep you in the dark. The purpose of secrecy was not to prevent the States from knowing what they were doing: their left hands and their right hands knew perfectly well what they were up to.
We’re going to have to cope with the problems their deceptions created. Because among the things that our listeners have destroyed is the Internet freedom policy of the United States government. They had a good game that they were playing both sides of. But now we have comrades and colleagues around the world—working for the freedom of the Net in dangerous societies—who have depended upon material support and assistance from the United States government, and who now have every reason to be worried and to be frightened.
What if the underground railroad had been constantly under efforts of penetration by the United States government on behalf of slavery?
What if every book for the last five hundred years had been reporting its readers at headquarters?
People talk about this as though it were a matter of the publicity of what we publish rather than the destruction of the anonymity of what we read. We will have to look next time very closely at what commercial surveillance really does and how it really does it in order to understand what our politics have to be. Because there, as here, deception, misdirection—waving the handkerchief over here so you do not see what the other hand is doing—is the whole secret to how it works.
The bad news for the people of the world is you were lied to thoroughly by everybody for nearly twenty years. The good news is that Mr. Snowden has told you the truth.
But if we really believe that the truth will set us free, we had better do it now.
Continue to Part III: The Union, May it Be Preserved
©Eben Moglen, 2013.
Reproduction and redistribution permitted under CC-BY-ND 4.0.
Translations into languages other than English are permitted under
Event Date: 27 November 2013 Room B01 Clore Management Centre Birkbeck, University of London Malet Street London WC1E 7HX The Birkbeck Institute for the
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