The Transparent Society, Page 3

  Privacy is a highly desirable product of liberty. If we remain free and sovereign, we may have a little privacy in our bedrooms and sanctuaries. As citizens, we’ll be able to demand some.

  But accountability is no side benefit. It is the one fundamental ingredient on which liberty thrives. Without the accountability that derives from openness—enforceable upon even the mightiest individuals and institutions—how can freedom survive?

  In the information age to come, cameras and databases will sprout like poppies—or weeds—whether we like it or not. Over the long haul, we as a people must decide the following questions: Can we stand living exposed to scrutiny, our secrets laid open, if in return we get flashlights of our own that we can shine on anyone who might do us harm-even the arrogant and strong?

  Or is an illusion of privacy worth any price, even the cost of surrendering our own right to pierce the schemes of the powerful?

  There are no easy answers, but asking questions can be a good first step.

  THE PRIVACY WE ALREADY HAVE

  Much of this chapter up to now appeared earlier as a published article and has since been perused online by interested parties around the globe. Their varied comments opened my eyes to a wide range of opinions about freedom, privacy, and candor. From philosophers to steelworkers, it seems that each person views such things differently. Especially privacy, which, like the fabled elephant fondled by a dozen blind sages, is described uniquely by each beholder.

  Even legal scholars cannot agree what the word means. American judicial rulings tend to treat privacy as a highly subjective and contingent commodity, a matter of trade-offs and balanced interests, whereas freedom of speech and freedom of the press are defended with sweeping judgments of broad generality. Some reasons for this difference will be discussed in chapter 3, where privacy is examined from many angles and shown to be the exquisite desideratum that it is. Indeed, without some privacy, we could scarcely function as humans. A chief aim of this book is to explore whether—and how much—privacy can be safeguarded in a coming era of cameras and databases.

  Alas, although it seems intuitive to protect privacy by erecting barriers to information flow, there may be good reason to question that assumption. Although I shall put off a more involved discussion until later, let me briefly illustrate with a restaurant analogy.

  We all know it is possible to be alone, or hold intimate conversations, in a public place. It bothers people to be stared at, especially while eating, yet we dine in crowded restaurants all the time, fairly secure that most of the eyes surrounding us aren’t looking our way, at least not very often. We don’t achieve this confidence by wearing masks, or because laws require other customers to wear blinkers and blindfolds. Mutual civility and common decency play a role, but not alone.

  An added factor that helps deter people from staring is not wanting to be caught in the act. The embarrassment accrued by a voyeur caught observing you is greater than your chagrin at being seen by the voyeur with asparagus in your teeth. Open visibility seems to favor defense over offense.

  All right, it’s not perfect, but it works overall.

  Now suppose we try to improve things by passing laws and sending forth regulators with clipboards commanding all restaurants to erect a maze of paper shoji screens to keep customers from ogling other patrons. Will this prevent people from staring, or encourage them? Without any plausible likelihood of getting caught, might voyeurs use technology, in this case poking tiny holes, to penetrate the “protective” curtain? No longer deterred, could peepers stare with impunity?

  The restaurant analogy is just a thought experiment. But it suggests that there is no dichotomy between accountability and privacy. Rather, you may need one to get the other.

  WHAT LIES AHEAD

  We must cover important ground before getting to the kernel of the argument over transparency. So chapter 2 begins by comparing the bright new information age with other highly vaunted “eras” that left disappointment in their wake. Cynical observers already predict the same demise for the swaggering epoch of silicon and electrons, yet new cybernetic tools may help bring a time of unprecedented opportunity, assisting hard-pressed humanity with pragmatic solutions to many vexing problems.

  Chapters 3 and 4 explore the nature and practical limits of privacy, how it is perceived by the law, and the looming question of whether information is a commodity that can be owned, focusing especially on the role of copyright protection to promote openness and creativity.

  Ultimately, the big choices must be made by citizens, who will either defend their freedom or surrender it, as others did in the past. Chapter 5 examines some peculiar traits of neo-Western civilization, a quirky and amorphous global super society that fosters eccentricity and ego the way other cultures have extoled obedience or physical courage. Chapter 6 then considers how lessons of accountability may apply to everyone from cops to social rebels, as we learn to “watch the watchmen.”

  Along the way, in secondary interludes following each numbered chapter, we will take a look at several topics of survival in the information age, including the worrisome problems of photographic fakery and computerized extortion, as well as the ongoing question of whether we should concentrate on ideals, or on what works.

  (End notes, references, and supplementary material for each chapter can be found in a section at the back of this book.)

  Chapter 7 gets into “nitty gritty” issues concerning encryption (secret codes) and anonymity, two prescriptions that are highly touted by some of society’s best and brightest cyberphilosophers. Chapter 8 covers some pragmatic problems, such as the controversy concerning names, passwords, Social Security numbers, and national ID cards.

  Any honest person must consider the possibility that he or she might be mistaken, so chapter 9 is where I do that. Among other things, I discuss whether mathematicians think encryption can really offer security against data spying by the biggest government computers. The chapter also covers a range of possible ways in which “transparency” might turn into a nightmare, especially if my sanguine views of the advantages turn out to be wrong.

  Finally, chapters 10 and 11 will expand the context of discussion to encompass the security of global civilization, pondering whether we at last have the tools to avoid the errors that toppled so many societies in the past.

  But first, let’s consider the nature of open societies.

  THE GHOST OF PERICLES

  We live in a time that spills over with contradictions. Extraordinary wealth gushes alongside grinding poverty. Episodes of horrific bloodshed contrast starkly with unprecedented stretches of peace, in which billions of living human beings have never personally experienced war. Within a single life span we’ve seen great burgeonings of freedom—and the worst tyrannies of all time. To find another era with as dramatic a range of highs and lows, you might go back twenty-five centuries, when another “golden age” posed towering hopes against cynicism and despair.

  Like the world of today, classical Athens featured profound bursts of creativity in science, culture, and the arts. But above all, the vision we tend to retain is that city’s brief adventure in democracy, a brave experiment that lasted just a little while and would not be tried again in a big way for two millennia.

  Even staunch fans of Athenian democracy admit it was imperfect by present-day standards; for instance, women, slaves, and those not born in the city had few rights. Yet its relative egalitarianism was impressive in an age of hereditary chiefdoms and arbitrary potentates. Across centuries of darkness, from that democracy to this one, the lonely voice of Pericles spoke for an open society, where citizens are equal before the law and where influence is apportioned “not as a matter of privilege, but as a reward for merit; and poverty is not a bar....”

  The virtues of this notion may seem obvious to modern readers. Today, citizens of many nations—those that I call neo-Western—assume that principles of equality and human rights are fundamental, even axiomatic (though they are often conten
tious to implement in practice).

  So it can be surprising to learn just how rare this attitude was, historically. In fact, Pericles and his allies were roundly derided by contemporary scholars. Countless later generations of intellectuals and oligarchs called democracy an aberration, ranking it among the least important products of the Athenian golden age. Even during the Italian Renaissance, Niccolo Machiavelli had to mask his sympathy for representative government between the lines of The Prince, in order to please his aristocratic sponsors. After Athens’s flickering candle blew out during the Peloponnesian War (431—403 B.C.E.), none was more eager to cheer the demise of democracy than Plato, the so-called father of Western philosophy. He wrote: The greatest principle of all is that nobody should be without a leader. Nor should the mind of anybody be habituated to do anything at all on his own initiative; neither out of zeal, nor even playfully.... In a word, he should teach his soul, by long habit, never to dream of acting independently, and to become utterly incapable of it.

  Partly due to the influence of Plato and his followers—and for reasons discussed in chapter 5 of this book—the democratic experiment was not tried again on a large scale until the era of Locke, Jefferson, and Madison.

  We all know in our hearts that freedom cannot survive such assaults, unless it is defended by much more than good intentions. For a time, in the middle of the twentieth century, it looked as if the Athenian tragedy might happen again, when constitutional governments seemed about to be overwhelmed by despots and ideologues. Writing under the shadow of Hitler, and later Stalin, Karl Popper began The Open Society and Its Enemies by appraising the relentless hatred for empiricism and democracy that Plato passed on through his followers all the way to Hegel—a philosophical heritage of self-serving, tendentious incantations (or “reasoning”) whose hypnotic rhythms were enthusiastically adapted by innumerable rulers, from Hellenistic despots to Marxist-Leninist commissars, many of them using contorted logic to justify their unchecked power over others.

  Looking back from the 1990s, when democracy seems strong—though hardly triumphant—we can only imagine how delicate freedom must have seemed to Popper, George Orwell, Aldous Huxley, and others writing in the 1940s and 1950s. Did they feel the ghost of Pericles hovering over their shoulders as they worked? Would the candle blow out yet again?

  Scanning history, those writers could see only a few other brief oases of relative liberty—the Icelandic Althing, some Italian city-states, the Iroquois Confederacy, and perhaps a couple of bright moments during the Roman Republic, or the Baghdad Caliphate—surrounded by vast eras when the social pyramid in every land was dominated by conspiracies of privilege. Ruling elites varied widely in their superficial trappings. Some styled themselves as kings or oligarchs, while others were priests, bureaucrats, merchant princes, or “servants of the people.” But nearly all used similar methods to justify and secure the accumulation and monopolization of privilege.

  One paramount technique was to control the flow of information. Tyrants were always most vulnerable when those below could see and hear the details of power and statecraft.

  Today, the light appears much stronger than in Popper’s day, and new technologies such as the Internet seem about to enhance the sovereign authority of citizens even further. Yet the problem remains as fundamental and worrisome as ever: What measures can we take to ensure that freedom, instead of being a rare exception, will become the normal, natural, and stable condition for ourselves and our descendants?

  In fairness, this same unease motivates many of those who oppose the notion of a “transparent society.” They share the apprehension Orwell conveyed so chillingly in Nineteen Eighty-Four: that freedom may vanish unless people promptly and vigorously oppose the forces that threaten it. So from the start, let me say to them that we are not arguing about goals, but rather the best means to achieve them.

  That still leaves room for disagreement, for instance, over whether the sole peril originates from national governments, or whether dangerous power centers may arise from any part of the sociopolitical landscape. Moreover, we differ over which tools will best help stave off tyranny. Metaphorically speaking, some very bright people suggest that citizens of the twenty-first century will be best protected by masks and shields, while I prefer the image of a light saber.

  These glib metaphors may cue readers that I won’t be presenting an erudite or academic tome on the same level as Popper’s The Open Society and Its Enemies, and that is certainly true. I shall not claim to prove or demolish any broad social rules. Above all, this book does not push an absurd overgeneralization that candor is always superior to secrecy! Only that transparency is underrepresented in today’s fervid discussions about privacy and freedom in the information age. My sole aim is to stir some fresh ideas into the cauldron.

  If we have learned anything during the hard centuries since Pericles and his allies tried to light a flickering beacon in the night, it is that we owe our hard-won freedom and prosperity to an empirical tradition—in science, free markets, and the rough-tumble world of democracy. Only mathematicians can “prove” things using pen and paper. The rest of us have to take our ideas pragmatically into the real world and see what works.

  In other words, this is not a book of grand prescriptions (though some suggestions are offered). I plan chiefly to discuss underutilized tools of openness and light that have served us well in the past.

  STRONG PRIVACY

  Before getting to those suggestions, we need to establish some context about today’s public debate over privacy. In keeping with the theme of this book, I rank the players and their arguments according to what effect their proposals would have on the flow of information in society.

  Take Megan’s Law, for example. Under a 1994 U.S. federal mandate, all fifty states have begun publishing registers of sexual offenders, which will lead eventually to a nationwide database. California provides this information on a CD-ROM disk that can be viewed at most police headquarters, letting parents, school officials, and other interested parties survey over 65,000 names (and many photos) for “potential molesters” who may live or work in their area. Activists supporting this system portray it as a way to ensure accountability in an area of life where a single mistake can lead to tragedy.

  Foes of the measure, including the American Civil Liberties Union (ACLU), claim that the rights of former prisoners are violated by this registry, which can be regarded as a nonjudicial additional penalty slapped onto the sentences of convicts who have already paid their debt to society. Opponents also cite anecdotes in which individuals suffered because they were erroneously listed, showing that innocents can be harmed by hastily and overzealously opening spigots of potentially faulty data.

  As far as this book is concerned, the relative merits of Megan’s Law are not at issue. Rather, this struggle simply serves to illustrate two opposing traits that appear in countless other modern privacy disputes.

  a. One party believes that another group is inherently dangerous, and that its potential to do harm is exacerbated by secrecy. Therefore, accountability must be forced upon that group through enhanced flow of information.

  b. The other party argues that some vital good will be threatened by heightened candor, and hence wants the proposed data flow shut down.

  Watch for this pattern as we go along. We shall see that it is almost ubiquitous when people take a stand on knowledge disputes. In chapter 7, for instance, we’ll discuss many and varied “Clipper” proposals that have been floated by the FBI and other federal agencies concerned about the potential of data and voice encryption to conceal criminal or terrorist activities behind a static haze. Officials worry that widespread use of electronic ciphers will thwart traditional surveillance techniques, such as court-ordered wiretaps, enabling dangerous villains to conspire in security and secrecy. They want to retain the level of vision and accountability that they traditionally held in an era of crude analog phone lines.

  A coalition of groups, including the Elect
ronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC), joined numerous journalists and private persons to lambaste the Clipper proposals, depicting them as encroachments by government on freedom and privacy in cyberspace. Often, they couched the threat in dramatic terms, as the opening move in a trend toward a Big Brother dictatorship. In any event, they point out that the FBI seeks a data flow enhancement that would go just one way, to government officials.

  In this example, the FBI’s proposal fits pattern A, while their adversaries fill position B. But these roles are often reversed! Take the ongoing struggle faced by anyone seeking documents from a federal agency under the Freedom of Information Act (FOIA). Although many officials are forthcoming and cooperative, others react with hostility against any attempt to enforce accountability. They drag their feet, cite national security, and sometimes use privacy concerns to justify noncompliance.

  It can be fascinating to watch the very same players take turns performing roles A and B, without any apparent awareness of irony or inconsistency. Some groups justify this conditional attitude toward information flow by assuming that government will always and automatically be wrong, whether it is trying to open a data spigot or attempting to close one down.

  The same pattern can be seen in other areas of modern society. For instance, when a corporation starts spying on its employees, tracking every computer keystroke, timing each phone call, reading everyone’s e-mail, and logging trips to the bathroom, managers justify these actions as essential for efficient conduct of business and to ensure staff accountability. Opponents decry such practices as violating basic human rights, calling for a shutdown of the offensive data flow.