The Transparent Society

  A majority of us can close the door to our rooms now and then, making it hard to imagine how our ancestors lived in crowded one-room cottages or multifamily apartments. Moreover, unlike the chiefs, kings, and priests of past eras, today’s authorities are severely limited in their power to intrude.

  There is a reason for this; the same reason that jurists almost consistently rule with lightning zeal on issues of free speech, even while they have such a hard time defining the outlines of a “right to privacy.” It is because the two are not equivalent. While free speech seems an indivisible, immiscible right that must be preserved with absolute clarity for liberty’s sake, privacy appears to be more like a liquid, a delicacy that free people can pour for themselves, as much or as little as they choose. I have said this elsewhere, and will make the point again: Privacy is a wonderful, highly desirable benefit of freedom. As sovereign citizens, we can debate the details among ourselves, and then choose to vote ourselves some.

  On the other hand, there can be few compromises when it comes to protecting the underpinnings of liberty. Those foundations will crumble unless they are guarded with fervent vigilance. Without both individual freedom and distributed sovereignty, all our vaunted modern privacy would vanish into legend, consigning us back to the oppressive feudal villages or despotic collectives that less fortunate men and women knew all their lives.

  There is a growing consensus that if the jumble of state and federal statutes, consumer pressure, and self-help is to be unified into meaningful privacy protection in the digital age, then we will have to do more than pass a law. The law in general, and each of us in particular, will have to make some fundamental adjustments in the way we think of personal information and electronic communication. In doing so, we will ultimately have to change our idea of what we can reasonably expect to keep private.

  ELLEN ALDERMAN AND CAROLINE KENNEDY

  RECIPROCAL TRANSPARENCY

  Bearing in mind all we’ve learned, let’s go back to the problems described at the start of this chapter—modern quandaries and threats to privacy in our turn-of-the-century world. A careful reappraisal shows that most of these examples share two common traits.

  1. The Reflex Response. The way some activists suggest dealing with any problematic situation is to shut down the information flow. To pass some rule impeding somebody else from acquiring or sharing a particular type of data. In other words, to prohibit a specified kind of knowing.

  Alas, we’ll see in chapter 5 that this type of “solution” conflicts fundamentally with human nature. We are, at our core, information pack rats and inveterate correlators. We hunger for news, facts, and rumors—especially when they are forbidden! In this attribute, the rich and powerful, and major corporations, are no different from the rest of us.

  The predictable consequence? If one kind of data acquisition is made illegal, you can be certain that someone will be doing it anyway on the sly, and possibly turning its dissemination into yet another highly profitable criminal enterprise, one that must be policed by yet another bureaucracy.

  Here is a little philosophical exercise that can sometimes be instructive. When dealing with so-called obvious solutions to fundamental issues, always try to imagine what might happen if we extrapolate the recommended trend to some extreme degree. For instance, consider a hypothetical world in which free speech reached levels of absurd exaggeration. To most of us, the resulting image would be of a place that is noisy, frenetic, and perhaps even scandalous—but despite all that, also productive and free. An overdose of free speech might be nasty, but hardly fatal.

  Now consider the “obvious solution” that is nearly always applied to privacy problems. Selective censorship. One bureaucracy to regulate this kind of information, and another agency to monitor that kind of data. Laws forbidding you to know this or tell that. The trend doesn’t have to be extrapolated to any logical extreme before the mind starts to reel.

  Conclusion: If you start forbidding people from knowing things—for example, telling physicians what they may and may not learn about their patients’ health—then take care. It might be effective for a little while, but soon you could find yourself embarked down a dangerous river, one whose reductio ad absurdum terminus is hell.

  And yet, many of the examples cited earlier in this chapter seem to hint at a possible alternative, already discernible within the problem itself.

  2. Reciprocal Transparency. Among the aims of this book is to present a second entire class of solutions to privacy issues, whose approach is not to close down information flows, but rather to compensate by opening them wider. For instance, if some company wishes to collect data on consumers across America, let it do so only on condition that the top one hundred officers in the firm must post exactly the same information about themselves and all their family members on an accessible Web site.

  Right now, an ever-increasing number of companies are using electronic means to monitor their clerical employees, to a degree that no keystroke goes uncounted. No pause for breath goes unmetered. This may seem objectionable and Orwellian to modern folks. It is also completely inevitable. As managers acquire such powers of supervision, justifying it all as “optimization,” we could begin an endless struggle to regulate these practices, creating a vast apparat of antagonistic government inspectors, shop stewards, and company human resources experts.

  Or else, as Professor Gary Marx suggests, we could try simply forcing higher-ups to share the accountability—and the pain. “While I am certainly not an advocate of unrestrained monitoring,” Marx says. “It does seem only fair that ... the same methods and technologies be applied to managers.”

  Instead of introducing hairsplitting rules and a dour bureaucracy to enforce this principle, the desired result could be achieved by letting unions, stockholders, or even individual workers file suit for the enforcement of a simple reciprocity rule, or tort. In fact, Marx suggests, the case for monitoring executives is much greater because their performance is more crucial to company success, and because their errors (or illegal activities) may have far greater consequences. “We might even adopt a principle that the more central a position and the higher the costs from poor performance, the greater should be the degree of monitoring. The credibility of those who advocate monitoring increases to the extent they are willing to apply the same technologies to themselves.”

  Likewise, if some institution establishes a drug-testing program, justified on grounds of both security and safety, it might be both fair and pragmatic to make all managers submit to the same snap inspections, and to ensure that the program checks for illicit chemicals currently fashionable among the aristocratic class. If it is feared that insurance companies might be prejudiced against clients based on their family genetic histories, why not supplement antidiscrimination laws by requiring the executives of any firm wishing to use gene-based data first to submit themselves and their immediate relations to all available genetic tests, and publish the results?

  It isn’t perfect, but at least there might be a bit less hypocrisy, and a tad more sympathy.

  Let’s suppose for a moment that I am right about those cameras—an infestation of stationary lenses, and even flying drones, that may soon fill the skies over every city. Which measure is more likely to help us secure our homes against invasions by new, high-tech Peeping Toms who send tiny, remote-controlled wasp cameras into our bedrooms: yet another unenforceable law? Or instead providing folks with high-tech tools of transparency that might detect and track those invasive little robot spies all the way back to their impudent pilots? Few people do anything in their bedrooms that would be more embarrassing to reveal than the shame that might befall such perverted voyeurs when their acts are shouted forth.

  As with any criminal activity, it is not the ferocity of punishment that deters, but the certainty of getting caught. Through reciprocal transparency, we might enforce fairness simply by using one of the oldest and most famous parables, “Judge not, lest ye be judged.” Fairness would be compel
led not by exhortation and regimentation but by demanding equal application of the Golden Rule.

  “It’s a very schizophrenic time,” says Sherry Turkle, professor of sociology at MIT, adding, “We have very unstable notions about the boundaries of the individual.”

  She might also be talking about the conflict between prescriptions (1) and (2) above, apparently opposite approaches to ensuring fairness in the coming century. Opposition between these two philosophies already deeply divides the community of electronic age rights activists. For example, Marc Rotenberg, director of EPIC, supports the European model of an agency set up to provide legal protections and enforce regulations, but members of the Cato Institute and many EFF activists prefer a hands-off approach.

  I won’t be doctrinaire and try to claim that the reciprocal transparency alternative will always be right for every modern dilemma. There will surely be times when the only viable solution to some problem is to forbid the collection, distribution, and/or storing of certain kinds of knowledge, at least for a limited time. My chief argument is that we should avoid doing this routinely, as a dubious but addictive habit. In principle, an open society sees information flow as a good thing, to be hampered only in the presence of strong evidence that harm cannot be prevented by any other means.

  Having said that, let me strengthen the argument for reciprocal transparency by, paradoxically, pointing out some potential flaws and weaknesses! • Reciprocity may be rendered ineffective if one side simply doesn’t care what others know or think of them. Some judgmental types may try to make themselves “immune” to reciprocity by coming clean with gaudy confessions, then zealously seeking to redeem others the same way. Such behavior has already been exhibited in our era by some gays who have come out of the closet and proceed to “out” others. Similar fervid morals campaigns are waged from the opposite end of the political spectrum by some whose religious sanctimony makes them feel righteously immune to rebuke, freeing them to lash at others without restraint.

  • Companies may start recruiting executives from the ranks of the “squeaky clean” rather than for their management skills (a situation that has been happening to politicians for a long time). These administrators could pass all forms of scrutiny, and thus feel free to pass judgment on others.

  • Even if two sides have equivalent information, there will still be inequality in their ability to act upon the data. (“We already know our bosses do nothing, so spying on them won’t help.”) The relative powerlessness of one side might spur greater efforts at coalition building—or it could result in apathy or despair.

  These are reasonable criticisms of an admittedly imperfect idea. Yet none of these pragmatic worries is a devastating refutation in principle. And as we shall see in later chapters, each objection has one or more feasible solutions. In any case, reciprocity is more equitable and less complicated than regulation. Even if such measures are only partly effective, they will leave us at least a little better off than before. That is how empirical civilizations solve problems—one practical step at a time.

  Anyway, what seems appalling at this point, so near the close of the twentieth century, is that whenever dilemmas erupt concerning privacy, only one class of solutions seems to dominate. The reflex reaction—to try and squelch others from knowing things—may fit human nature, but it is still a dour, suspicious, and ultimately futile approach. Even if those “others” are people you don’t approve of very much.

  For the record, let me emphasize that I am not arguing for people to abruptly go naked or to unilaterally foresake traditional forms of privacy. Certainly transparency can only work if it happens in a manner that people call “fair.” Whenever some outsider asserts a need to peer at you, it is only proper to demand: “First show me yours, before I show you mine!” This holds doubly when the inquisitive party is some government official or agency.

  What I am suggesting is that in the future, whenever we argue over how to deal with some vexing problem involving information and justice, we should at least consider how the second class of solutions might apply. Reciprocal transparency solutions that involve pushing aside stuffy drapes rather than shutting them, opening a door instead of slamming it, and above all letting more air flow through, rather than less.

  The next chapter is about a matter that some readers may find a little dry, the problem of intellectual property in this new electronic age. Chapter 5 will then return to some flamboyant speculations about human nature and our rambunctious, amazing civilization. Later in this book we will cover specific aspects of the modern debate over privacy and anonymity in the Internet era, going into controversies like the “Clipper chip” imbroglio, in which the U.S. government sought the power to eavesdrop on encrypted conversations and data transfers. The firestorm reaction to that proposal, and others like it, illuminates many of the issues raised in this chapter, showing how widespread perceptions of privacy collide with matters of public well-being.

  In exploring these matters, we’ll see that some vituperative shouting matches are based on simple misunderstandings, whereas other disagreements appear so fundamental that compromise of any sort may be anathema to either side.

  THE ACCOUNTABILITY MATRIX

  “No man is so fond of freedom himself that he would not chuse to subject the will of some individuals of society to his own.”

  OLIVER GOLDSMITH, THE VICAR OF WAKEFIELD

  In 1996 the famed muckraker and consumer advocate Ralph Nader was the presidential candidate of California’s Green Party. At one point, after lecturing earnestly about the need to hold corporate officials accountable for every nefarious transaction and scheme, Nader was asked why he refused to publish his own financial records, as all other candidates had done. Without irony, Nader replied that his own bank and tax statements were private, and by refusing to comply he was making an important gesture for liberty. This despite the fact that he was running for the most powerful office in the land, and the one most urgently in need of relentless scrutiny.

  Such unidirectionality of righteousness, so typical of our era, illustrates how people can be trusted to hold their foes accountable but are seldom as scrupulous in applying the same standards to themselves.

  Information can flow in various ways that provoke people subjectively and powerfully, depending on their point of view. For instance, self-interest attracts us to any new development that increases our power to see others, especially our opponents, the better to observe their actions and stratagems. It is quite another matter when something comes along that makes us more naked and visible to our foes! Consider how this is illustrated in the following matrix.

  Now, where it says “others,” go ahead and insert some person or group, such as “government” or “aristocrats” or “corporations”—perhaps your worst foe, or whomever you perceive as a dangerous power center in the world. You are likely to call “good” any device, law, or technical advancement that enhances the effectiveness of categories 1 and 2. In contrast, whatever comes along that increases the effectiveness of 3 and 4 may raise your discomfort level, if not ire.

  Illustrating this, EFF cofounder John Gilmore has been outspoken about restricting government’s ability to conceal (through tools like FOIA), while also curbing its ability to see (by promoting encryption and denying the FBI court-ordered access to the coded communications of suspected criminals).

  The US government attracts a lot of people who like wielding power. We limit the power of our government for the health of our society.... We’ve seen what happens when states get those powers. We get governments that can’t be voted out of office, that must be run out with guns; administrations that torture people, dictators who steal from their citizens. We get reigns of terror, inquisitions, star chambers, political prisoners, J. Edgar Hoovers.

  Gilmore’s statement sounds prudent. Government does attract the power hungry (though so do other walks of life). But historically, the ability of governments to oppress has always depended on maintaining a one-way flow of informa
tion. Kings, tyrants, and parties in power above all concealed things from the citizenry at large. In contrast, one would be hard pressed to show that restricting the amount of information flowing to government has more than a marginal impact on preventing the arrival of tyranny.

  In fact, there is a vivid counterexample: us. Despite uncountable flaws in our contemporary neo-Western world, there has never been a major urban society in which individuals of all social classes had more freedom than we do today. This is true despite the fact that our government knows far more about its citizens than any other in history. The one factor making this possible has been reciprocity of information flow.

  Each time government acquired new powers of sight, citizens seized another tool for enforcing transparency and accountability from government. From open-meeting laws, to special prosecutors and conflict-of-interest prosecutions, to whistleblower protections, to financial disclosure codes and the vaunted FOIA, we have (so far) successfully used such tools to thwart the potential of tyranny that is inherent in any coercive bureaucratic system. Moreover, this was accomplished not by blinding our officials but by granting them the vision they claimed to need, and then insisting that they walk around (metaphorically) naked, observed, supervised, and forced to account for each marginal abuse of power.

  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.