Privacy, Technology, and the Open Society
Electronic Frontier Foundation
My talk concerns two ethics -- the belief in an open society and the belief in privacy. I think these two ethics are related to each other, and I would like to say something about how they relate to our conduct in the world.
This society was built as a free and open society. Our ancestors, our parents, our peers, and ourselves are all making and building this society in such a way -- because we believe such a society outperforms closed societies -- in quality of life, in liberty, and in the pursuit of happiness.
But I see this free and open society being nibbled to death by ducks, by small, unheralded changes. It's still legal to exist in our society without an ID -- but just barely. It is still legal to exist by paying with cash -- just barely. It is still legal to associate with anyone you want -- unless they bring a joint onto your boat, photograph naked children for your museum, or work for you building a fantasy roleplaying game. And I think conferences like ours run the risk of being co-opted; we sit here and we work hard and we talk to people and build our consensus on what are relatively minor points, while we lose the larger open society.
For example -- we have the highest percentage in the world of our own population in jail. We used to be number two but last year we passed South Africa. We are number one.
Over the last ten years we've doubled the number of people in jail. In fact, those extra cells are mostly filled with people on drug charges, a victimless crime that as recently as twenty years ago was accepted and was celebrated behaviour.
Now, I'd like to ask people in the room, please raise your hand if you have not broken a law, any law, in the past month.
[one person raised his hand, out of about 400].
OK. Please raise your hand if your disks and back-ups were searched, would there be something there you are not allowed to have? Please raise your hand if your disks are clean.
[more hands -- maybe twenty to forty]
We have a few more takers here.
But it's no wonder we are concerned about privacy, because we are all "lawbreakers", We all break the law, but few of us are criminals. The problem is that simply attracting the attention of the police is enough to put the best of us at risk, because we break the law all the time and it's set up to make that happen!
Now I don't blame the cops for this. They mostly just enforce the bad laws that the legislatures write, but in fact the legislatures aren't completely at fault either, because in the long run, only educating the whole population about the benefits of openness has a chance. And this is something that I try to contribute to regularly, and I think I do a little bit of work in this area.
But even beyond that, as P. T. Barnum said, "Nobody ever lost money by underestimating the intelligence of the American public." Where I hold out the most hope is in a different approach. In the paraphrased words of Ted Nelson, we probably can't stop this elephant but maybe we can run between its legs.
In most of Europe, phone companies don't record the phone numbers when you call, and they don't show up on your bill. They only tick off the charges on a meter. Now, I was told that this is partly because the Nazis used the call records that they used to have, to track and identify the opposition after taking over those countries in World War II. They don't keep those records any more.
In the U.S., people boycotted the 1990 census in record numbers. I think that the most shameful story of how Japanese-Americans were rounded up using census data had a lot to do with that.
Professor [Lawrence] Tribe talked [at the conference] about the deep distrust that we must hold for our government. We have to realize that people who run the government can and do change. Our society, and our permanent rules, must assume that bad people -- criminals even -- will run the government, at least part of the time.
There's been a lot of talk here about privacy ... but we haven't focused so much on why we want it. Privacy is a means; what is the real end that we are looking for here? I submit that what we're looking for _increased tolerance_.
Society tolerates all different kinds of behaviour -- differences in religion, differences in political opinions, races, etc. But if your differences aren't accepted by the government or by other parts of society, you can still be tolerated if they simply don't know that you are different. Even a repressive government or a regressive individual can't persecute you if you look the same as everybody else. And, as George Perry said today, "Diversity is the comparative advantage of American society". I think that's what privacy is really protecting.
The whole conference has spent a lot of time talking about ways to control uses of information and to protect peoples' privacy after the information was collected. But that only works if you assume a good government. If we get one seriously bad government, they'll have all the information they need to make an efficient police state and make it the last government. It's more than convenient for them -- in fact, it's a temptation for people who want to do that, to try to get into power and do it. Because we are giving them the means.
What if we could build a society where the information was never collected? Where you could pay to rent a video without leaving a credit card number or a bank number? Where you could prove you're certified to drive without ever giving your name? Where you could send and receive messages without revealing your physical location, like an electronic post office box?
That's the kind of society I want to build. I want a guarantee -- with physics and mathematics, not with laws -- that we can give ourselves things like real privacy of personal communications. Encryption strong enough that even the NSA can't break it. We already know how. But we're not applying it. We also need better protocols for mobile communication that can't be tracked.
We also want real privacy of personal records. Our computers are extensions of our minds. We should build them so that a thought written in the computer is as private as that thought held in our minds.
We should have real freedom of trade. We must be free to sell what we make and buy what we want -- from anyone and to anyone -- so we can support ourselves and so we can accomplish the things we need to accomplish in this world.
(You don't have to applaud for all of these...)
Importantly, we need real financial privacy because the goods and information cost money. When you buy or sell or communicate, money is going to change hands. If they can track the money, they can track the trade and the communication, and we lose the privacy involved.
We also need real control of identification. We need the option to be anonymous while exercising all of these other rights. So that even with our photos, our fingerprints and our DNA profile, they can't link our communication and trade and financial activities to our individual person.
Now I'm not talking about lack of accountability here, at all. We must be accountable to the people we communicate with. We must be accountable to the people we trade with. And the technology must be built to enforce that. But we must not be accountable to THE PUBLIC for who we talk to, or who we buy and sell from.
There`s plenty of problems here. I think we need to work on them. Just laws need to be enforced in such a society. People need to find like-minded people. And somebody still has to pay the cost of government, even when they can't spy on our income and our purchases. I don't know how to solve these problems, but I'm not willing to throw the baby out with the bath water. I still think that we should shoot for real privacy and look for solutions to these problems.
So, how do we get from here to this kind of society? One way is to stop building and supporting fake protections, like laws that say you can't listen to cellular phone calls. We should definitely stop building outright threatening systems like the Thai [National] ID system or the CalTrans vehicle tracking system.
Another thing to do is, if you know how, start and continue building real protections into the things you build. Build for the US market even if the NSA continues to suppress privacy with export controls on cryptography. It costs more to build two versions, one for us and one for export, but it's your society you're building for, and I think you should build for the way you want to live.
If you don't know how to build real protection, buy it instead. Make a market for those people who are building it, and protect your own privacy at the same time by putting it to use. Demand it from the people who supply you, like computer companies and cellular telephone manufacturers.
Another thing is to work to eliminate trade restrictions. We should be able to import the best from everywhere and we should be able to export the privacy and the best of our products to the rest of the world. The NSA is currently holding us hostage; Mainframe manufacturers, for example, haven't built in security because they can't export it. IBM put DES into their whole new line of computers, and they were only going to put it on the U.S. models, but the NSA threatened to persecute them by stalling even their allowable exports in red tape. IBM backed down and took it out. We can't allow this to continue.
We also need to educate everyone about what's possible so we can choose this kind of freedom rather than assume it's unattainable.
Finally, we need to keep cash and anonymity legal. We'll need them as precedents for untraceable electronic cash and cryptographic anonymity.
I think with these approaches, we'll do a lot more for our REAL freedom, our real privacy, and our real security, than passing a few more laws or scaring a few more kid crackers. Please join me in building a future we'll be proud to inhabit and happy to leave to our children.
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Created before October 2004