by David Brin
Not long ago, Professor Dorothy Denning of Georgetown University argued that the government’s need for potent investigative tools weighed heavily enough in an age of terrorism to justify the Clipper initiative. Michael Godwin was fierce in rejecting this position, propounding this interpretation of the U.S. Constitution: “The framers recognized, as we all must recognize, that every guarantee of individual rights has a price: Governments have to sacrifice some efficiency to preserve those rights.” He went on to assail people like Denning for talking earnestly about a social contract that strikes an equilibrium between individual rights and government necessity: “But the whole point of the Bill of Rights was to remove some rights from any balancing act. The framers knew that, without some kinds of strong guarantees, it is invariably easy to justify a small diminution of individual rights when one is concerned about public safety.”
While this righteous statement contains some wisdom, especially in warning about the potential for a slow diminution of rights, it should come as no shock to the reader that I also find much to disagree with.
First, and most awkwardly, the word efficiency was never used, or even implied, by the framers in the context described. Moreover, here we see again, as in the “Singapore Question,” a pernicious underlying assumption that there exists a direct link between tyranny and efficiency! A relationship that cannot be proved, and probably does not exist outside the minds of its believers. Open societies may seem inefficient because they are raucous and noisy, but by almost any measure of actual wealth creation, problem solving, error avoidance, or overall productivity, those nations that follow a strategy of transparent accountability have been dramatically more successful than closed ones, such as the former Soviet Union.
In fact, any careful reading of the Federalist Papers shows that the framers knew all about the advantages of accountability, seeing it as a virtue that would simultaneously benefit both the individual and the state. Vigorous protection of particular liberties in the Bill of Rights would benefit all citizens, as well as the republic that was their chattel and tool.
Someone would have to pay for all this, and the Constitution ensured that it would be leaders. The state’s high officials, not to be confused with the state itself, had to sacrifice something. Not “efficiency” (which is actually enhanced by some kinds of accountability). Rather, they had to give up the smooth pleasure of unencumbered, unsupervised command that had always been the temptation and privilege of rulers in times past. A privilege that often led them down spirals of self-deception and eventual ruin for the states they governed.
Moreover, anonymity, secrecy, and privacy are never mentioned anywhere in the U.S. Constitution or the Bill of Rights. These were not rights set aside for pure protection. They are given only a weaker, implicit shield deriving from the Fourth Amendment’s ban against state thugs barging into people’s homes. In an earlier chapter we asked why such values were virtually ignored, while freedom of speech got precisely the sort of fierce, uncompromising guarantee that protects against diminution. Strong privacy aficionados sometimes explain this apparent lapse by claiming that privacy is now under greater threat than it was two hundred years ago, when people simply took it for granted. But that is mistaken, as anyone who ever lived in a small village can swiftly attest. In countless ways, today we have more genuine privacy, and more power to enforce it, than people of the rustic 1780s. Yet, instead of now taking it for granted, we talk about privacy so much more than our ancestors did.
The real reason that free speech was (and still is) defended so fiercely is simple. As long as open debate is protected, people may vote about other things—like privacy law—and change their minds later on. As long as we retain free speech and citizen sovereignty, there is a chance to back out of mistakes. We can experiment and fine-tune other matters, debate consequences, criticize the present situation, and then maybe shift course yet again. But there are some things we can never dare to fiddle with. If free speech itself is compromised for any reason, we might lose that precious power to argue and reevaluate—to discover that we made an error, and correct it. For that reason above all, both citizens and the courts have defended speech rights with fierce ardor. It is the one trait of our society that enables us to leave our options open.
All right, then, anonymity is like privacy, a contingent desideratum. Does this mean Professor Denning is right, that hard and unpleasant choices have to be made? Should we simply ignore the ideologues and concentrate instead on working our way through an endless quagmire of hard, practical trade-offs? Shall we render unto the government certain powers that we know will erode particular freedoms, while staking other liberties with DO NOT TRESPASS signs?
I respect Dr. Denning. She and I are pragmatists who agree on the desirability of negotiation and consensus. And yet, I must demur this time, because once we start saying that we can buy some security over here in exchange for a little freedom over there, the path to ruin lies open before us.
Say what?
The reader may be understandably confused.
I thought Brin favored compromise ... and now he’s talking like a purist!
Let me explain. I am a pragmatist, and as such, I refuse to get trapped into either-or choices that are flawed and dangerous in their very essence.
Do you remember our earlier discussion of memes? Those were ideas that (according to Richard Dawkins’s fascinating theory) may have certain traits enabling them to act like infectious or parasitic organisms, taking root in host creatures (human minds) and then spreading out from there (through persuasion) to infect others. I have referred to several possible memes in the course of this book, such as the cyber libertarian insurrection fantasy discussed in the previous section. Some of these contagious notions manifest as simplistic but widely held ideologies—such as the models of Marx, or Freud, or Ayn Rand—that describe humans as far less sapient than we are clearly capable of being.
An entire class of these pesky notions are what I call the devil’s own dichotomies. These insidiously simple social models basically assert the same thing: that people are forever constrained by pairs of polar (and often equally vile) opposites, forcing humanity always to sail between some dreadful Scylla and its equally loathsome Charybdis.
The “Singapore Question,” which proclaims that we must either be protected slaves or else liberated savages, is one example of such a dichotomy. So is the atrocious concept that freedom is somehow at odds with competent government, or that eccentrics can survive only if protected by antisocial masks, or that liberty and efficiency must each suffer in order for both to eke along.
It is the odious worldview of those who believe in zero sum games, the dour theory that each win must be balanced by a loss, and therefore the best one can hope for in life is a tenuous, break-even.
Well, I do not accept it, and neither should you. This conviction that we are all engaged in an endless, tense balancing act, a dangerous dance down a narrow knife edge between chaos and dictatorship, is enticingly melodramatic. But it is also an exhausting and ultimately futile image. One that says, “Sooner or later, you will all take one wrong step and tumble off the tightrope, left or right. Then, zap! It will be over. Chaos or dictatorship will follow, for you and all of your posterity.”
It is a ridiculous notion, unfitting for a civilization filled with ambitious, proud, and compassionate people who have spent most of their lives having their cake, eating it, and sharing it, too! People who have dined at a fine table, grown up with liberty, seen the dawn of both science and ecological sensitivity, filled their minds with ripening knowledge that took millennia to germinate, and yet now find themselves coaxed to accept awful, pessimistic models of human nature that bear no relation whatsoever to the wondrous civilization that surrounds them.
Excuse me for being greedy, but I want freedom and good government.
Both a flourishing economy and a well-cared-for earth.
A society that is diverse and communal ...
... that
offers both privacy and accountability.
One that can afford a big conscience, along with lots of neat toys.
In fact, despite the relentless propaganda about “trade-offs,” it should be evident by now that all five of these pairs will either prosper together or wither on the same vine. They are linked. They share the same blood supply.
What evidence can I offer for such a strong and iconoclastic statement?
The same evidence I have used several times before.
Us.
We are all the evidence anyone should need. If you write down all ten of the desiderata that I just listed, our present civilization clearly has more freedom, wealth, diversity, privacy, accountability, and neat toys than any other large society across the ages. People might argue heatedly over whether we are more communal, or if our moral conscience is adequate, but I see little evidence that other cultures, ancient or recent, did much better. Moreover, the millions who nowadays complain that we should care more are in themselves strong evidence that we are trying. Even when it comes to tending the earth, our marks may be better than you at first expect.
The point is that we score high on so many scales at once because these factors are synergistic with each other. And even if they weren’t, our best course would be to act as if they were.
As a parent and a citizen, I must demand both liberty and safety. Moreover, I refuse to choose between prim tyranny for my children, on the one hand, and a world of violent anarchy on the other.
Shrugging aside such cruel dichotomies, why don’t we just move on? Getting practical, let us set about doing what our civilization is best at—solving problems.
THE PROBLEM OF EXTORTION
As we have seen, there are two branches to the strong privacy movement. Both seek to solve worries about freedom and privacy by reducing information flows—in effect by enabling some people to prevent other people from knowing things—but they would do this in strikingly different ways. One faction would pass new laws, establish European-style privacy commissions, and unleash bureaucratic organizations to enforce ornate rules controlling the use of personal data. The other wing expresses an abiding libertarian distaste for anything resembling government involvement. They would empower private parties to create masks, false identities, and secret messages via technological means, especially encryption.
In this book we discuss many real and potential flaws inherent to both kinds of strong privacy. But one fault in particular is so glaring that it has received worried attention from the cypherpunks themselves. That problem is extortion. In the early-to-mid-1990s, several extended e-mail discussions took place among key figures in the crypto community concerning the following scenario:
You are a blackmailer or kidnapper. You have in your possession something that is precious to someone else—either an important piece of information or an abducted loved one—and you want to extort payment. Do the new tools of encryption offer you a chance to commit the perfect crime?
Nowadays, kidnapping and blackmail are extremely hazardous to attempt in a peaceful Western society. They are dependent on secrecy, which can be broken at several stages: when making the threat by letter or telephone, when physically collecting the ransom, or when cashing the payment (spending potentially marked or bogus currency). Police experts have acquired many sophisticated techniques to expose a perpetrator’s identity at any of these phases.
But these are exactly the steps that some believe could be made foolproof through new methods of ciphering. By allowing both messages and money to be transformed into untraceable strings of electronic bits, secret codes can assist an extortionist in several ways. 1. The demand or ransom note can be transmitted in such a way that only the victim will be able to access or read it, thus preventing inadvertent discovery by outsiders or agents of the law.
2. By taking advantage of multiple anonymous remailers, the sender can conceal perfectly his or her location and identity.
3. Replies by the victim can be posted (in code) at open bulletin boards, so that the extortionist could read them without giving himself or herself away.
4. Finally, payment, in the form of ecash [see “All the World Is a (Digital) Marketplace,” after chapter 6] can be sent encrypted so that the extortionist is able to pick it up, decrypt it, and spend it without a trace.
Encryption also enables the criminal to create a “calling card”—like the trademark glove left behind by the jewel thief in The Pink Panther. Such a unique identifier would be useful for many kinds of extortion, for instance, transmitting arson or death threats (“Pay up or I’ll burn your factory”). Those warnings that are backed up by a credible track record will be taken most seriously. Only this calling card will be untraceable by even the most meticulous forensics expert. The technique also enables foolproof corruption of public officials, such as fire inspectors, since the bribing party remains perfectly concealed and immune to sting operations.
It is a tribute to the intellectual honesty of some cypherpunks that they raised this issue themselves, not waiting for their opponents to bring it up. Alas, their deliberations produced only a slim set of recommendations: a. Don’t read unsolicited mail. If nobody gets the extortionist’s threats, no one will pay him, and the racket doesn’t work.
b. Never pay. Arrange things so that some third party must approve all your transactions (and you, in turn, do this for some stranger). Each “guardian” will prevent payment of extortion threats, even if the victim pleads for the money to be sent. If extortion never pays, it will stop being tried.
c. Assume the worst. If it is a kidnapping, assume the loved one is dead. If it is blackmail, tell everything before the blackmailer can.
d. Make your life so secretive and shrouded that no enemy or predator will ever know that you are rich enough to pay anything or know how to reach you with an extortion threat.
e. Rely on police competence in finding other kinds of clues.
These solutions swing back and forth from extravagant versions of spasmodic “openness” to desperate measures of extreme secrecy. The principal problem with suggestions A, B, and C is that they benefit only society in the long run. They do little for the individual victim of a particular kidnapping or blackmailing, and so there is no incentive for a victim to cooperate. A clever extortionist will set a price that the prey is willing to pay rather than risk a far greater harm.
Solution D appeals to those radicals who are unabashed solipsists and would resign from civilization if they could. Their ultimate aim is to be not only “extortion-proof” but also “judgment-proof”—immune to accountability to taxing authorities, civil courts, or their neighbors. In fairness, most crypto enthusiasts consider this position both antisocial and wildly unfeasible.
The intractability of the extortion problem vexes the most thoughtful members of their community. In the words of Hal Finney: “My worry is that ‘crypto-anarchy,’ rather than being the somewhat ‘tamed’ anarchy we usually discuss in the context of privatized law and such, may come to resemble the more prevalent public conception of anarchy, a constant tooth-andnail fight of all against all. Cryptography will provide a nearly perfect shield behind which all but the lowest-rung criminals can hide, and in such a system justice is impossible.”
Finally, when the discussion settled down, they were left with suggestion E, which seems rather strange coming from a faction whose chief agenda is to blind government and deny police powers to the state. Yet, in an irony that we will explore in chapter 9, solution E is exactly what may work in the years to come. Advancing technologies and improvements in professional skill may either bypass encrypted masks or render them far less effective than today’s boosters envision, eliminating the extortion threat by shining light wherever perpetrators try to hide.
In fact, Finney and others point out the hand holding the flashlight need not belong to an officer of the state. Illumination may be cast by private services or even the amateur sleuths we described in chapter 2. Or indeed by countless citizen-neigh
bors. Solving the problem of extortion does not have to entail reckless flight in the opposite direction, surrendering vast powers to bureaucrats.
Throughout this book the principal question has not been whether accountability will flow—it will, no matter what cyber-transcendentalists say—but whether it can be cast in all directions, pinning down the police at least as much as the rest of us. There is still time to negotiate such a covenant, though the opportunity to work out a deal may pass by if we wait until a wave of masked extortion threats and unsolvable terrorist violence drives citizens into a panic, seeking refuge as the people of Weimar Germany did, in the arms of the nearest demagogue.
PART III
ROAD MAPS
How extraordinary! The richest, longest lived, best protected., most resourceful civilization, with the highest degree of insight into its own technology, is on its way to becoming the most frightened.
A. WILDAVSKY
CHAPTER EIGHT
PRAGMATISM IN AN UNCERTAIN WORLD
Numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the housetops.”
SAMUEL D. WARREN AND
