The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom?

by David Brin

  Chastened by the Watergate experience, citizens seem to know almost instinctively that it is better to shine too much light than too little. Witness the so-called scandals that have transfixed U.S. news media in recent years. Would any past Speaker of the House have received so much attention for minor improprieties as Newt Gingrich did for letting a Republican think tank pay for a minor lecture course? In former times, would anyone have bothered a First Lady for firing some members of the White House travel office? And yet, I am not saying that lesser peccadilloes should be dismissed! Increased scrutiny and raising of standards may irk public officials who as a consequence find themselves living in a searchlight glare, with minor infractions receiving the attention of felonies, but that seems a small price to pay for the vigilance freedom requires.

  And the trend continues. As terrorists, criminals, and bombers go more high-tech and lethal, each new heinous act will prompt government appeals for greater surveillance powers. Perhaps citizens will refuse these requests nine times in a row—until something truly grievous happens. Then, in the ensuing dread and panic, a frightened public will grant those new powers. No indignant posturing or bleating about sacred privacy rights will prevent it.

  But we can make sure baby won’t be thrown out with the bath water, by doing the same thing we’ve done all along. By demanding that officials be scrutinized every bit as much as they scrutinize us.

  Two millennia ago Juvenal posed the riddle, “Who shall watch the watchman?”

  There is just one answer. We all will.

  Going back to the accountability matrix, one can take almost any contemporary privacy issue and see people choosing different boxes, depending on their point of view. As Ralph Nader vividly illustrated, any effort either to restrict or open up a data spigot is judged good or evil subjectively. When we enhance our own “privacy,” this may be seen by others as a sneaky attempt to keep them in the dark, a conspiratorial veil that might conceal threats to their liberty.

  Nowhere is this tendency more apparent than on the Internet, where the semi-official dogma is openness and liberty, but where unpopular opinions are often greeted with vicious attacks and masked retribution. Wired magazine columnist Jon Katz posed the problem in October 1996: “What exactly does freedom of speech mean here? Are we only to post opinions that young, angry males like, or things we all agree are politically correct?” Describing the behavior of many “netizens” whose subjective ethics fit the accountability matrix perfectly, Katz complained that: “Freedom of speech seems to mean we get to say whatever we want whenever we want. If people don’t like it, tough. But hostility, personal attacks, and flaming, have, in some ways, already done more harm than the CDA (Communications Decency Act) ever could.”

  Is this inevitable? Does human nature have to conflict with maturity and good sense?

  Each of us would personally call boxes 1 and 2 good, and boxes 3 and 4 bad. But if our aim is to live in a society that is fair and free, the tools needed by our commons will be those favoring boxes 1 and 3, enhancing our ability to hold others accountable, and their ability to do the same to us.

  The most dangerous trends, laws, and technologies are those promoting boxes 2 and 4, pitting citizens against one another in an arms race of masks, secrets, and indignation.

  CHAPTER FOUR

  CAN WE OWN INFORMATION?

  I find the prospect of documented lives a little chilling, but some people will warm to the idea. One reason for documenting a life will be defensive. If someone ever accused you of something, you could retort: “Hey, buddy, I have a documented life ... I can play back anything I’ve ever said. So don’t play games with me.”

  BILL GATES, THE ROAD AHEAD

  There are some things man was not meant to know.

  H. P. LOVECRAFT

  Privacy is not the only reason that people are frantic to control information. An even stronger motive stirs bitter efforts to dominate streams and reservoirs of data, not only on the Internet but wherever else the tributaries lead. That motive is revenue.

  It has become fashionable to call information the “money of the future,” a new take on the old adage that knowledge is power. Perceiving a potential for profit, corporations and individuals are now laying claim to all sorts of facts, as well as strings of words, bits, or sounds. Thus we see professional sports leagues attempting to assert exclusive property over game scores. Movic studios seek new copyright rules so broad and proactive that they could conceivably outlaw personal computers (as possible tools for copying infringement). Government agencies try to fund themselves by sclling to favored private firms the sole right to distribute public records digitally. Software vendors demand laws to make “shrink-wrap licenses” as fully enforceable as freely entered agreements. And publishers of noncopyrightable (because noncreative) works such as telephone directory white pages lobby for new legal protections so sweeping that the National Academy of Sciences condemned them as potentially stifling to research.

  According to Pamela Samuelson, professor of law and information management at the University of California, Berkeley, “These examples show how the ongoing revolution in information technology is affecting older views of intellectual property, in ways that are being felt far beyond the computing field.”

  Such anecdotes only hint at the complexity of future “ownership” dilemmas. For instance, our own bodies were built according to plans coded in complex molccular packets of deoxyribonucleic acid (DNA), called genes. Each of us, except for identical twins and other clones, has a unique genetic pattern that is intrinsically one of the most personal things anyone can know about us. Does this mean a sovereign citizen should therefore control any scientific or commercial use of the specific patterned sequence of coded letters representing his or her DNA? No act of creativity or investment risk was undertaken by the individual making such a claim, nor does he or she undergo any tangible sacrifice or loss if some medical institute applies that code to produce some useful product. Nevertheless, shouldn’t the “source” individual share in the proceeds? Might he or she even claim the power to withhold permission—refusing to share information that could save another person’s life?

  Are personal data a commodity? Are individuals endowed by their Creator, or by natural law, with an innate proprietary power over the words, images, and factual details of their lives? According to privacy scholars Arthur Miller, Alan Westin, and Ken Laudon, this broad theory of data ownership may offer an effective legal weapon against inquisitive governments and corporations, especially if people could bring charges of “theft” against a commercial database that compiles their address or Social Security number, or anyone else who gathers private information without permission. Communications attorney Anne Wells Branscomb, in her 1994 book Who Owns Information? From Privacy to Public Access, proposed that “our names and addresses and personal transactions are valuable information assets worthy of recognition that we have property rights in them.” That sentiment is echoed by the ACLU in its Take Back Your Data campaign, pushing for legislation allowing individuals to prevent others from using their personal information, and basing this in part on inherent property rights. Taking a radical approach, P. Michael Nugent, general counsel for technology and intellectual property for Citibank, proposed two fundamental rights: control over personal information and a “right to be unknown,” a pair of assertions we’ll see again in chapter 7.

  Australian privacy scholar Roger Clarke is among those opposing this approach.

  Information as a commodity is one of my pet hates. Most people think it’s a turkey of an idea. The property notion began with real estate, and migrated, with some difficulties, to chattels. To extend it to replicable intellectual ephemera is pointless, and doomed to failure. The useful convention is to recognize interests in data, and in the case of personal data to recognize a very strong interest on the part of the data subject.

  Even Clarke’s views appear somewhat radical compared with the present legal situation in the United States,
where courts have tended to rule that consumers who engage in commercial transactions with companies have essentially chosen to go public with any information they provided, and thereafter have no reasonable expectation of control over that data—except as provided for in specific statutes. (We described some of these current and proposed laws in chapter 3.)

  Where society finally lands along this continuum will be vitally important to life in the future. A generalized principle of data ownership, if carried to its logical conclusions, would almost certainly produce a citizenry that spends half the next century in courtrooms, filing indignant injunctions to keep other people from sharing this or that snippet of knowledge without permission—in other words, a permanent entitlement program for lawyers. On the other hand, it can be galling to see huge commercial interests profit from the income-generating value of our personal data, without making token efforts to share the proceeds, or even a modicum of dignity, with those who have a stake in those flickering bits and bytes.

  At first glance this can be seen as yet another example of the ongoing struggle between passionate theoreticians and pragmatists, those who believe in essences versus those who concern themselves with the effects on real people and cultures. Later, we’ll address this point head-on, continuing the 2,500-year-old tussle between Plato and Pericles to the verge of a new millennium. But by now it should be clear that this book—whose central thesis is that liberty will be better protected by light than by shadows—deals with freedom and other important matters from a perspective of practical empiricism.

  What works? What practical measures have already helped this society achieve elevated levels of wealth, education, and openness, with greater diversity and more individual liberty than any of its predecessors? Which other measures may be needed for our newest commons, the Internet, to grow and thrive, transforming itself into a tool for better things to come?

  It is time to take a fresh look at the rules that society uses to coordinate the ownership of informational property.

  That ideas should spread freely from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiary and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

  THOMAS JEFFERSON

  THE END OF COPYRIGHT?

  In the middle ages, artisan guilds kept tight control over various technical and mechanical arts, restricting them for exploitation only by acknowledged master tradesmen. Others who wanted to use these forbidden crafts had to do so clandestinely—and so a great many people did exactly that. Later, the principle was expanded, as kings created monopolies to reward favored supporters and maximize revenue from various overseas ventures. For instance, when the British monarchy granted “patents” to the Hudson Bay Company and the East India Company, the objective was to funnel all British trade in these regions through an exclusive set of corporate officers (with the king a silent partner). In effect, it was an application of state force with the sole aim of preventing competition.

  History shows that this scheme seldom worked very well. In response to such exclusions, many clever and daring entrepreneurs took the traditional recourse open to those who are excluded by law from trade: they went underground. As smugglers and black marketeers they created a second economy that thrived in parallel to the official one—untaxed and unsupervised—prompting the Crown to spend far more on patrol ships and other enforcement measures than it gained through lavishing favoritism on patent holders. Nor do these superficial losses begin to measure the damage resulting from a general concomitant increase in crime and disrespect for law. In time it became evident that this kind of patent regulation was both foolish and self-defeating.

  Late in the seventeenth century, a second theory began circulating, a notion almost diametrically opposite to the one underlying the East India Company, or the exclusivity of medieval guilds. This notion proposed using patents to increase openness, encouraging all commercial activity to come out of the shadows and stimulating the fastest possible sharing of technical advances for the benefit of all society.

  How would such a miracle be achieved? Until this time, patents were synonymous with monopoly, forcing others who wanted to use the forbidden thing (an invention, or a trade route) to do so surreptitiously. In response, to prevent cheaters from stealing their techniques, inventors often went to great lengths to keep their innovations secret. But now reformers suggested turning the whole process on its head. They would return the word patent to its original meaning (having to do with something being open or apparent, as in “patently obvious”). The power of the state would not be used to enforce exclusive franchises, but rather to make certain that inventors and other creators were rewarded for sharing.

  The means to do this would be a well-regulated market, or clearinghouse, allowing individuals to stake claim to their novel techniques for a fair but limited time, and license the rights in exchange for reasonable royalties. Under this system, the main goal was never to guarantee profits for inventors! Instead, profit would simply be a vehicle for achieving the real aim, which was to make sure that knowledge was openly shared, as quickly as possible, and that economic activity would take place in the open, where it could be taxed.

  The Statute of Anne, enacted in Britain in 1710, was the first national law to attempt this approach. Almost eighty years later, after some further evolution of thinking on the subject, the United States Constitution empowered Congress to pass laws “to promote progress of science and useful arts.” Benjamin Franklin was among those intimately involved in designing the Patent Office according to principles of maximized transparency. Since these beginnings, and despite many flaws, the system has worked admirably in many nations.

  During any generation, the test of any system for regulating intellectual property has always been to what extent most innovators are tempted to keep their advances secret, in order to retain an advantage for a while, until competitors finally discover or duplicate them. Most inventors and other creators in the West eschew this tantalizing option, choosing instead to file for patents, counting on modest but reliable commissions for their accomplishments. This high level of participation proved the system was doing its job. Hence the spread of patent-based expertise accelerated, benefiting all.

  A similar idea lay behind copyrights, which reward creativity of a different sort—stringing words together in unique and meaningful sequences, or generating other original works of subjective art. The more interesting or captivating a creation is perceived by others, the more income its writer or artist should receive, normally through royalties, a per-sale share in retail proceeds. But again, over the long run, it is society and consumers that profit most from such relatively open exchange.

  Indeed, most authors also spend a large part of their lives “consuming” works that other scribblers produce, so they benefit from that side of the deal, too. In the metaphor of a commons, patent and copyright law enable creative people to “graze their sheep openly” and sell the wool for a fair price, without fear of losing the whole herd to the next big bully who comes along.

  Alas, what works well during one generation may need fine-tuning—or even a major overhaul—in the next. Today we can see signs of immense strain in this traditional structure of law, originally designed as one of the greatest tools for openness. • Intellectual Property (IP) law was originally meant to foster public disclosure and dissemination of new ideas, but one new trend pulls in the opposite direction. Trade secrets have been getting increased honor and protection, both under the U.S. Economic Espionage Act of 1996 and through the willingness of courts to grant major damage awards to plaintiffs in trade secret misappropriation cases (for example, a $57 million award was recently assessed against Polaris a
nd Fuji for unapproved use of an electronic fuel injection system). But the trade secret strategy denies the public its quid pro quo of public disclosure in exchange for legal protection of the inventor’s rights. Ironically, this returns us to the more ancient approach, encouraging secretive monopolies of knowledge, and backing those monopolies up with the full force of state power. New bills, under consideration during the 1998 congressional session, would take this trend further.

  • Although a special court was established in 1980 to gather and focus the attention of technically minded jurists on patent matters, even these well-educated judges can nevertheless be boggled by increasingly arcane scientific terminology. They often fall back on presiding over a “war of the wizards,” duels between expert witnesses who sometimes win cases based more on their charisma and legerdemain than on the detailed specifics of scientific priority. All too many out-of-court settlements are based purely on the cost of litigation, since according to one patent attorney, “being right or wrong has almost nothing to do with whether you sue or get sued.” This trend, too, results in many innovations going unpatented as companies seek to protect them instead as trade secrets.

  • There has always been a singular and worrisome problem with patent law—that it offers a mechanism for the thwarting of new ideas if a patent holder refuses to license the patent for a reasonable royalty. While individual inventors seldom do this (and licensing is mandatory in some countries), large U.S. corporations have been known to suddenly and frenetically research a promising new field—or buy some innovative small firm—with the sole aim of preempting competition, getting a patent lock on relevant techniques, and then sealing the new processes away, never to be used. This can be especially tempting when the company’s investment in older technologies amounts to billions of dollars.