The responses to my essay, all interesting and articulate, divide into two groups. A pair (Richard Stallman and Marvin Ammori and Adam Kern) disagrees strongly with my factual assertions and arguments. The others agree with me to varying degrees, but suggest other issues.
To start with the first group, Stallman says I reject “the campaign against massive surveillance.” I disagree. A critique of the current surveillance state is at the heart of my essay. I argue for a substantial reduction of secrecy, a purposeful encouragement of new technologies that assure privacy, and commitment to due process.
Stallman argues that government should not have an “accumulation of dossiers about people . . . who are not visibly committing crimes and not subject to specific court-ordered surveillance.” Yet, under due process, the “dossier” is necessary: it provides the probable cause justifying the court-ordered surveillance. Without dossiers, Stallman’s recommendation would actually lead to constant video monitoring of all Americans. How else could the state know who is visibly committing crimes? Further, the monitoring would require so much human labor that inevitably computers would use facial and behavioral recognition algorithms to decide who should be arrested.
According to Stallman, “The danger of terrorism in the United States is too small to justify sacrificing anything important.” I would have given up much (and so would millions of other people) to deter the many acts of terrorism inflicted on Americans in my adult life, if that trade were possible. Instead of arguing for “sacrificing” privacy or liberty, however, I suggest ways to restate these rights in the digital age.
I hope all will be at the virtual table when we renegotiate the Bill of Rights for the digital age.
Stallman also says, “The main cause of terrorist danger is our own government's crimes, which inspire hatred.” I reject that claim.
Finally, Stallman says of my essay, “The most vicious assumption is that ‘almost everyone’ would choose a total surveillance state as a way to ‘protect our families from harm.’”
But Stallman misquotes and misunderstands me. What I wrote was, “If I were asked to relinquish my privacy . . . in return for protecting my family from harm, I would agree. . . . Almost everyone would make the same hard choice” (emphasis added). To restate the point: it is not vicious to believe that a parent would give up personal privacy in return for saving the lives of family members. Indeed, if I chose to keep some aspect of my life secret at the cost of letting my wife and children be hurt or killed, “vicious” is only one of the words of contumely I would deserve.
Ammori and Kern quote the passage correctly, but assert that, at times, we should “trade some lives for some privacy.” They have captured what Stallman may have meant: namely, should the American legal system tolerate some risk to individuals—not knowing who would be in danger—in order to preserve a right of privacy for all?
A useful test of this proposition is to replace the word “we” with “I.” Would I be willing to trade someone else’s life in order to preserve my personal privacy? I hope everyone would answer that question in the negative.
According to Ammori and Kern, by not extrapolating from the individual case to the general, society-wide situation, I have avoided “posing hard questions.” But just as hard cases make bad law, to paraphrase Justice Oliver Wendell Homes, so do Sophie’s choices create poor policy. I have tried to suggest that technology and law can be fused so that cruel tradeoffs are not necessary. At the least, that ought to be the goal of policy.
Turning to those who agree with the basic contours of my arguments, Evgeny Morozov kindly accepts my prescriptions, and he signs on to my major point. “Examining how the distribution of information affects power,” he writes, “is the right framework for us to work with.” He adds that the emerging business of data analytics, however, will challenge the usefulness of my suggestions for limiting government’s power. I agree with him, but that is another essay.
I also share Rebecca MacKinnon’s concerns. She is right that “while legal reform in the United States is necessary, we also need parallel processes across the democratic world.”
Jeremy Kessler suggests that I am “fundamentally interested less in safeguarding citizens’ private lives than in assuring that they continue to wield public power.” I do not accept the dichotomy, because I believe the safeguards help citizens wield power. His comment, however, raises an issue that deserves consideration. He also notes, “The idea that . . . privacy and liberty depend on government power—an old progressive idea—is having a minor renaissance among legal scholars.” I like being part of any renaissance, even if minor, and I admit I am an old progressive.
Frank Pasquale is absolutely right to identify the dangers of “a lazy blurring of national defense and crime, military and police power.” I did not mean, however, “to assume an alignment of interests among data-gathering firms and ordinary consumers.” Rather, I think the firms trade free services for data, and many consumers accept the trade with little awareness of the possible consequences.
Jennifer Granick supports my call for “democratic activism.” She worries though that “under the guise of counterterrorism, the United States and its surveillance allies seem to be spying on the wrong people.” But that must always be true, because the false positives generated by data analysis are so numerous.
Granick is concerned that, given the history of targeting political activists, some government leaders will consciously select inappropriate targets. She has identified a critical issue. Law must be reformed so as to include serious sanctions for government use of personal information for political ends.
Archon Fung, charmingly, lifted his head from a video game to point out that “massive corporate [data] collection” leads to excessive revelation of personal information and also permits manipulation of individual beliefs, including by political campaigns. He argues that even corporate data collection threatens democracy. I agree with him on these issues. He also points to the risk of a “geek aristocracy” in my call for citizens to protect themselves with new technologies. One should indeed be wary of geeks bearing gifts, no matter how cool they are. Fung also generously called me one “of the Internet’s creators and conductors,” which makes me hope he wins that video game.
Bruce Schneier agrees with me that the government should support technologies that create a secure Internet, even as recent news stories about the Heartbleed bug suggest that the government may be doing the opposite. And he rightly points out that making the Internet secure may diminish the power of government to conduct surveillance.
I am grateful to all the commentators, even the most critical. I hope all will be at the virtual table when we—here I definitely mean all of us in America—renegotiate the Bill of Rights for the digital age. We have to make sure, after all, that the power lies with us. That is the central contention in my essay, and the insightful responses have strengthened my conviction that the public is equipped to make critical decisions about the future of the Internet.