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

by David Brin

  42 Elsewhere I discussed ... David Brin, Otherness (New York: Bantam Books, 1994).

  43 ... higher intratribal homicide rate than ... downtown Detroit ... Regarding the high murder rate among !Kung bushmen of the Kalahari, R. Lee tabulated 22 homicides over 50 years, which in their small population worked out to a per capita rate of 293 per million per year. Fifteen of the murders happened amid blood feuds. (R. B. Lee, The !Kung San: Men, Women and Work in a Foraging Society [Cambridge University Press, 1979].)

  43 ... that 20 to 30 percent of males in preindustrial societies died at the hands of other males ... For further discussion see C. Boehm, “Egalitarian Behavior and Reverse Dominance Hierarchy.” Curr. Anthropol. 34 (1993): 227—254. Also B. M. Knauft. “Violence and Sociality in Human Evolution.” Curr. Anthropol. 32 (1991): 391—428. S. Krech III, “Genocide in Tribal Society.” Nature 371 (1994): 14—15. And R. W. Wrangham and D. Peterson, Demonic Males: Apes and the Origins of Human Violence (Boston: Houghton Mifflin, 1996).

  43 ... people who agree on the fundamental desirability of tolerance ... Regarding society’s sometimes uneven march toward acceptance of diversity, see the discussion in Making All the Difference: Inclusion, Exclusion and American Law, Martha Minow (Ithaca, N.Y.: Cornell University Press, 1990).

  44 ... cast our thoughts further ahead ... Hence, perhaps, the modern popularity of films, books, and television shows about aliens?

  45 ... nonconformists are among the ... best-paid ... What matters to an artist nowadays is not how many people hate you, but how much attention you can get. Those who disapprove cannot have you burned at the stake. Merry masters of outrage, like Serrano or Andrew Dice Clay, enjoyed decrying the philistine resistance of the majority—white profiting handsomely from the patronage of a tidy minority of the public. Others, such as Howard Stern, translated such niche positions into cult hero status. The lesson? In a free and diverse society, majority opinion is meaningless to all but politicians. Sell yourself to a select group. Become a cult figure to just 5 percent, and you can reap rich rewards of money and ego from millions, while having the satisfaction of calling the remaining 95 percent idiots. Talk about having your cake and eating it too!

  45 ... no one foresaw the personal computer ... One classic failure of prediction can be seen in the fact that not a single science fiction story or novel written before 1970 predicted the home computer. Countless tales extrapolated computers as vast, monolithic machines served bv hordes of white-coated attendants. The reason for this lapse is rooted in basic storytelling, which is often served by showing the reader or moviegoer some frightful center of power for the protagonist to oppose. The Big Computer fit this role so well that no one pictured the opposite—a distribution of computational power, and accompanying independence, to the citizenry at large.

  48 The Society for Amateur Scientists, based in San Diego, California, can be reached at (800) 873—8767.

  48 ... assure us that their favorite encryption system is foolproof ... For more about the amateur-collective effort to break the DES, see http://www.rsa.com/des/. Also, http://www.frii.com/~rcv7deschall.html.

  49 ... gatherings of enthusiastic eclectics ... These confabs range from obscure “shirtsleeve” summer studies, sponsored by government agencies to foster reevaluation of old approaches to famous gatherings, such as the annual “Renaissance” weekends, with invitations more sought after than a spot on the fabled social register. Others, like TED conferences run by polymath Richard Saul Wurman, feature famous and obscure intellectuals from around the globe, but almost any university nowadays hosts cross-disciplinary seminar series, many open to an interested public. For-profit conclaves also cater to this growing demand for confab mental stimulation.

  49 ... almost nothing of recognized value ... will ... be lost ... Some early readers defied me to find interest groups passionately dedicated to preserving eight-track music systems, or hand-winding iron core computer memories, or sawing ice from frozen rivers to store in root cellars, or collecting movies on Betamax format, or reading 800 bpi magnetic data tape. I could answer by emphasizing the “recognized value” phrase. But in fact, I have already found people pursuing several of these hobbies, and suspect a persistent search would come up with quirky individuals styling themselves “world experts” in the rest of those obscure areas of human knowledge.

  53 ... newsgroups that specialize in debunking legends ... See Joel Furr, “Chicken Little, Myth, Reality and Absurdity in alt.folklore,” Internet World, February 1995.

  CHAPTER 3

  57 ... clicking on a site on the World Wide Web may wind up creating a “biography” ... Even experienced and techno-savvy denizens of cyberspace sometimes feel helpless before persistent attempts bv voracious computer systems to learn everything about everybody. For instance, “cookies” are little text files that a World Wide Web site may drop onto your hard drive—flies the site may collect later, when you revisit. Cookies may simply contain data that smooth the process of reconnecting, so that each subsequent visit goes smoothly, perhaps a formatting record of previous purchases at the site, or your password, or past preferences, etc. Such innocuous uses may smooth a lot of transitions, enabling more agile use of the Web. On the other hand, the information can be used to create personalized and individually targeted marketing databases, or even to glean information about the contents of your own hard disk drive.

  58 An industry of “how to” manuals ... Just a few examples offer simple methods to get around almost any privacy law.

  Privacy for Sale: How Computerization Has Made Everyone’s Private Life an Open Secret, by Jeffrey Rothfeder (Simon & Schuster, 1992) shows how “data cowboys” both legally and illegally gain access and sell private data. The author swiftly acquires information on Dan Rather, Dan Quayle, and other public figures as a demonstration that anything can be found with relative ease.

  How to Get Anything on Anybody: The Encyclopedia of Personal Surveillance, by Lee Lapin (Paladin Press, 1991) covers available surveillance hardware and techniques used by private investigators. “Most bugs are planted by people to spy on their spouses, or to get advantage in business.”

  Privacy in America: Is Your Life in the Public Eye? by David Linowess (University of Illinois Press, 1989) describes how privacy laws are regularly flouted by governments and businesses alike, ranging from genetic screening data to electronic fraud.

  60 ... credentials to establish identity... potential for fraud ... Gary T. Marx, “Fraudulent Identification and Biography,” in D. Altheide et al. New Directions in the Study of Justice, Law, and Social Control (New York: Plenum, 1990). Professor Marx goes on to point out that, in our society, skill at playing roles is encouraged in education and acting. More than 4,000 people have been given new identities under the federal witness protection program. Other common fraudulent presentations of self include a student taking a test for another, a traveling businessman claiming to be unmarried, teenagers using fake IDs to purchase liquor. One book, The Pauper Trip, offers a step-by-step guide to creating a new identity.

  Another illustration of identity scenarios, My Name Is Legion, a science fiction novel popular among libertarians and cypherpunks, depicts a future hero using his computerized “back door” to alter the worldwide identity database in order to give himself new identities at will, moving like a god among mere mortals who are pinned to society by their universal ID numbers.

  64 Computerized medical databases cross state lines ... Ann Wells Branscomb, Who Owns Information?: From Privacy to Public Access (New York: HarperCollins, 1994).

  65 ... they should know if doctors are HIV-positive ... The only known cases of doctor-topatient transmission involve six patients infected with the HIV virus by a dentist. One of them, Kimberly Bergalis, a young woman in her early twenties, subsequently died.

  65 ... assure consumers access to their own records and impose sanctions ... This problem is not new. In fact, many privacy advocates would be happy just to see enforcement of recommendations by a 197
3 task force formed at the U.S. Department of Health, Education, and Welfare to study the impact of computerization on the privacy of medical records. Their resulting Code of Fair Information Practices suggested the following guiding principles: 1. Openness. There must be no record-keeping systems of personal data whose very existence is secret.

  2. Disclosure. An individual must be able to find out what information about him is in a record and how it is used.

  3. Secondary usage. An individual must be able to prevent information about her gathered for one purpose from being used for other purposes without her consent.

  4. Record correction. An individual must be able to correct or amend a record of information about him.

  5. Security. Any organization that creates, maintains, uses, or disseminates records of personal data must assure the reliability of their data and take precautions to prevent misuse of the data.

  (See Robert Ellis Smith, “Law of Privacy in a Nutshell,” Privacy Journal (1993): 50—51.)

  69 ... idea that privacy, once plentiful, is only now endangered ... Janna M. Smith, Private Matters: In Defense of the Personal Life (Reading, Mass.: Addison-Wesley, 1997), p. 8.

  70 ... reputation remained as important as ever ... Jeffrey Obser, “Privacy Is the Problem, Not the Solution,” Salonmagazine, June 1997.

  70 ... writers and commentators have offered their own learned remarks ... For a substantial (though not unbiased) reading list, see the recommended books section of the EPIC at http://www.epic.org/.

  71 Ellen Alderman and Caroline Kennedy, The Right to Privacy (New York; Knopf, 1995), p. 154.

  72 This class of privacy... “right to be let alone”... personal sovereignty ... Nowhere is the entanglement of two separate issues—freedom and privacy—greater than in discussions involving abortion and other matters of personal choice. In its decision in Roe v. Wade, the Supreme Court upheld a woman’s right to choose abortion as a birth control technique, citing an inherent (though largely unwritten) “right to privacy..” But in fact, the personal sovereignty issue has much more to do with freedom of action than with any purported right to keep secrets. Though “information privacy” is often vague, impractical, or even partly illusory, the right of individuals to act freely for their own benefit without harming others need not be reduced, even in principle‘. Nevertheless, some individuals may refrain from some actions because they feel that those actions cannot be performed except in secret. Accountability will always be on our minds.

  73 ... A new “right” became widely ... defended ... It should be noted that, although many more invasion-of-privacy suits are filed nowadays, people who sue rarely win. A University of Arkansas study found that state and federal courts dismissed over 70 percent of privacy lawsuits filed in 1992.

  74 ... Privacy Law in Allied Nations ... See Colin Bennet, Regulating Privacy: Data Protection in Europe and the United States (Ithaca, N.Y.: Cornell University Press, 1992). A comparative study of privacy protection law.

  75 ... unlikely that American standards will be adequate ... Ironically, a study of European business practices conducted by a Harvard Business School studentfound indications that companies there honored the vaunted and centralized EU codes more in the breach than in the observance.

  76 ... no initiative will cut them off ... “Practical obscurity” seems particularly absurd when one realizes than many of the data in government computer files have been entered by incarcerated felons, who apparently can be trusted with bad-but-open information that the rest of us should have to peruse at glacial speed.

  78 Alan F. Westin, Privacy and Freedom (New York: Athenaeum, 1968), p. 31.

  78 The virtue of privacy... Janna Malamud Smith, Private Matters: In Defense of the Personal Life (Reading, MA: Addison-Wesley, 1997).

  86 ... that restricting the amount of information flowing to government ... Critics of this idea, seeking historical support, have cited the fact that Jew·s and other minorities in Nazi Germany were harmed by the knowledge that the German government had concerning its people. And yet my statement about history stands. Countless other governments knew the same things and did not kill their citizens. The factor that enabled the Nazis to control the state and use its power to wreak horror was a monopolization of the information flow running to people, which explains why they deemed the Ministry of Propaganda the paramount agency of the Third Reich. Above all, they made certain the public would have no insight into the deliberations, plans, and character of their rulers. In other words, from the perspective of the ruling clique, it was imperative to make sure that boxes 1 and 2 in the accountability matrix were maximized, while boxes 3 and 4 were savagely repressed.

  87 ... each new heinous act will be followed by government appeals for greater surveillance powers ... This happened after the World Trade Center and Oklahoma City bombings. In each case a small but significant “antiterrorism” bill passed the U.S. Congress. While the legal effects were minimal, elected representatives felt impelled to be seen “doing something.” As such crimes proliferate in the future, this trend will continue ... so there had better be a countertrend—one establishing ever higher levels of citizen vigilance and control over the officials enforcing these new laws.

  88 ... people choosing different boxes depending on point of view ... For instance, modern tools to collect and correlate medical records or credit reports might be filed in slot # 1 by doctors or accountants; but to somebody with a genetic disorder, or a person who had a minor shoplifting conviction back when she was seventeen, the answer would be #3 ... accompanied by feelings of violation and outrage. Likewise, caller ID seems a handy idea when you are at home screening out cranks, but not so good if you are a battered wife, trying to conceal your present location from an abusive spouse.

  CHAPTER 4

  91 .. if carried to its logical conclusions ... The most extreme position toward data ownership is held by some followers of Andrew J. Galambos, who cite his teachings that an ideal sociey would be defined by property rights, and that all individuals should own 100 percent control over not only published works but also their ideas. Thus, Einstein might have denied the state any right to use the formula E=MC2 to make bombs and kill people. Individuals would own any product of their thoughts, and pass those property rights to their descendants in perpetuity. Needless to say, I find this cross between Platonic mysticism and Randian solipsism to be insupportable at any level. (It provokes one to wonder how the Galambos notion jibes with another one we’ll look at in chapter 5, that of “memes,” or infectious ideas. If a meme takes up residence in your mind, do you own it because your thoughts gave it manifestation? Or does it, after a fashion, own you? If memes are proved to be “life forms,” could they then sue for royalties on every idea we’ve ever had? I believe I will end this particular parenthetical aside with ;-)

  92 ... artisan guilds kept control ... Surviving remnants of this practice are seen in the restrictive licenses required for participation in many skilled—and even semiskilled—occupations. One can certainly see the point of some regulation when it comes to physicians and truck drivers, though a tendency toward self-serving insularity must always be fought. But in the strict certification of hairdressers one can see the influence of medieval guilds still flourishing.

  93 ... creators were rewarded for sharing... An early example was the generous prize offered by the British admiralty for developing clocks that would help mariners solve the problem of navigating longitude. Under this tradition, the ample prizes for highly esteemed discoveries/inventions made the idea of selling one’s idea, rather than the devices resulting therefrom, both acceptable and attractive. Most awards were of sufficient size to allow a commoner who immediately invested his prize to live on the proceeds in comfort for the rest of his life.

  94 During any generation the test ... Many developing nations have laws that require mandatory licensing or “working” of patents. If negotiations with the patent owner fail, a hopeful licensee can lease the patent for a set statutory r
ate. Even in countries, like the United States, that do not have mandatory licensing or working requirements, companies can only repress bought-up technology for the life of the patent. Part of the quid pro quo of patenting is full disclosure. Everyone knows how the invention works and can watch the clock ticking down, preparing to exploit it the day the patent expires.

  95 ... This can be especially tempting ... The willingness of corporations to use patent law to thwart innovations, something that individuals seldom do, points out one of many flaws in the traditional legal position that corporations are rightfully individuals under the law. I am not radical enough to reject this principle entirely. The “incorporation” of rights in a limited liability company has been useful for encouraging flexible application of capital through the economy. Nevertheless, it may be proper to rethink those specific aspects of this legal artifice that serve to harm the pragmatic interests of real human citizens.

  95 The publishing industry was shaken ... D. T. Max, “THE END of the Book?,” Atlantic Monthly, September 1994, 61—71.

  96 ... computer software companies lose a dollar to pirated ... These estimates are based on the questionable assumption that purchasers of pirated copies would have gone out and paid retail prices for legitimate copies had pirated versions not been available. It is alway’s hard to get a grip on “might have been” scenarios.

  96 ... keeps many users willing to stay legal ... Nowadays, with relatively cheap recordable CD-R drives, piracy is becoming easier once again. For a while, software companies tried innovations such as formatting floppy disks in unusual formats, or having the user look up a password found on the “7th line of page 145 of the manual,” but inconvenience to consumers eventually led to the demise of such practices.