The Transparent Society

  Let’s assume that unavoidable back-linked tag commentary does eventually become a routine part of cyberlife. In that case, controversial books like this one will almost certainly be among the earliest works to be dogged by relentless little annotations and rebuttal references, swarming and sniping like jackals trying to corner a water buffalo.

  Fair enough. In that case, let me go down in history as one of the first authors formally to welcome such attention to one of his works. After all, it’s only accountability—something that operates in both directions, by the way. Here you go, boys. Here’s an ankle. Give it your best shot.

  It is a fiction, devised by those whose interests are best served by a more sharing society, that information wants to be free. Users may want it to be free—and in the short run, much can be saved by denying compensation to those who have devised the systems and done the work—but if we as a society do not make sure that providers are compensated for their efforts, the information age may turn out to be a short-lived footnote to history.

  ANN WELLS BRANSCOMB

  A FUTURE FOR COPYRIGHT?

  Lest anyone misunderstand when I urge that tomorrow’s dataways remain unfettered and clear, this means easy availability of information. It does not imply anarchy or never having to pay for what others worked to produce. If we are to retain the time-honored benefits of copyright—enabling creative groups and individuals to remain in business—it will require society to accept that some kinds of proprietary interest in data clearly can be claimed, at least for a limited length of time.

  This is consistent with a transparent society. In a world of openness and accountability, one might still assert that “information created by (or about) me is mine. I may not be able to conceal it, but you should pay a reasonable standard fee if you make use of it.”

  But how? We’ve already seen that digital duplication offers a formidable threat to any system based on copy-by-copy sales. Can pragmatic ideas offer a way out of such a fix?

  First, let’s acknowledge that the CIC (the wealthy “bad guys” in the NIICA debate) actually have the best case in principle. Ideally, some means should be found for intellectual property to be compensated in proportion to the amount that it is used by people and institutions in the world. Even so, the approach taken by CIC lawyers is catastrophically flawed. By insisting on criminalizing so many harmless traditional behaviors, they are following an ancient and discredited path—one that will only foster disdain for the law and drive the real information economy underground.

  A much better approach would use positive measures to attract society toward a system based on fair payment. This might be accomplished in a number of ways: 1. Developing technology to make pay per use reliable and convenient.

  2. Creating one or more commercially distinct zones within cyberspace, which people can visit to test and grow familiar with these payment schemes, while sampling therein some truly distinct and original entertainment experiences they can find nowhere else.

  3. Demonstrating some of the proposed new techniques of encrypted uniqueness verification that can be embedded in each customer’s use-copy of a given work. Since every person entering the special entertainment zone will already have agreed by contract to abide by certain rules, it will be legitimate to track leakages back to the source and then charge for damages. A “telerighted” document might even contain embedded applications capable of informing its publisher about its subsequent use.

  4. Exhibiting willingness to live with slack, by abiding by current standards of fair use and not hollering theft over someone downloading a JPEG image of Mickey Mouse. For many years, the music industry has tracked play-lists of radio stations, accruing per-use royalties through BMI and ASCAP, while at the same time recognizing that they would look foolish trying to charge for songs played by local amateur bands. There should also continue to be generous provisions for researchers, educators, and other traditionally protected information users. In other words, a sense of scale—and basic human decency—might go a long way toward legitimizing the notion of fair payment for goods received.

  5. Developing such trials to the point where people trust they won’t be bled dry simply for exercising the privilege of looking around. The system should be so easy to use, and so readily capable of being selfaudited by customers that the payment of a penny here for a news article and a penny there for a cartoon becomes too trivial to perturb the average person, even when they settle their monthly bills. In other words, pay per use must never deter a hardworking citizen from using electronic media to explore and grasp the world. (For example, parents today buy Disney videos that are so inexpensive that few are ever tempted to make copies. Sales are in such fantastic numbers that only an executive who is certifiably compulsive would care about the exceptions.)

  6. Making pay-per-use sites attractive for major creators to publish, exhibit, or perform there first, inducing more customers to visit, and so on—thereby establishing acceptance of the pay-per-use principle through attraction, instead of by enlisting state power to impose it everywhere at once.

  Beyond all this, executives of the big American content-producing companies might pause in their moral dudgeon, take some deep breaths, and note that the United States spent half its existence, until the early 20th century, as a net importer of intellectual property. Once upon a time, America was known as a major center of pirate printing presses, to the exasperated wrath of European publishing houses. Therefore, while we should continue seeking pragmatic solutions to piracy—both overseas and domestic—it might be more dignified to do so without taking on the appearance of pompous hypocrites.

  An Economy of Micropayments?

  I cannot predict whether such an experiment would succeed, though using a “carrot”—or what chaos theorists call an “attractor state”—offers better prospects than the coalition’s present strategy of saber rattling and making hollow legal threats. In fact, the same approach might be used to deal with other aspects of “information ownership,” even down to the change of address you file with the post office. Perhaps someday advertisers and mail-order corporations will pay fair market value for each small use, either directly to each person listed or through royalty pools that assess users each time they access data on a given person. Or we might apply the concept of “trading-out”: getting free time at some favorite per-use site in exchange for letting the owners act as agents for our database records. It could be beneficial to have database companies competing with each other, bidding for the right to handle our credit dossiers, perhaps by offering us a little cash, or else by letting us trade our data for a little fun.

  Proponents of such a “micropayment economy” contend that the process will eventually become so automatic and computerized that it effectively fades into the background. People would hardly notice the dribble of royalties slipping into their accounts when others use “their” facts—any more than they would note the outflowing stream of cents they pay while skimming on the Web.

  But Hal Finney, senior engineer with Pretty Good Privacy, Inc., one of the leading encryption software companies, doubts the process would be anywhere near so gracious or smooth. “I see every possible piece of information about your neighbors and your society being gathered into little pools, with price tags and jealous bureaucrats making sure that you don’t know anything you haven’t paid for.” Similar doubts have been expressed by Microsoft vice president Nathan P. Myhrvold.

  Despite having worked out the above scenario for an experiment in micropayments, I agree with Finney and Myhrvold. My best recommendation for the future would err in favor of openness, and not sweating the small stuff. While hard work and creativity deserve fair rewards, I see no point in charging some mail-order company a penny for my address. Nevertheless, an economy of micropayments is one possible destination on our horizon. If so, it could be either an accountant’s dream or a nightmare, depending on the details. In any event, it would hardly be the worst place for us to wind up. At least information would f
low. Creators would be encouraged. And we would all get to share in whatever’s going on.

  At the opposite end are those who believe that all efforts at copyright control—even using the venerable tools of a well-regulated market—will ultimately fail. Indeed, the odds seem stacked against any effort to keep people from making digital copies whenever they want. For all their money, power, and motivation, members of the CIC may be thrashing against technological inevitability. “Like dinosaurs in a tar pit,” derided one eloquent hacker, who laughed at the notion of anyone forcing him to pay for something acquired electronically. He went on to quote one of the oldest, most revered, and by now most hackneyed Net aphorisms: “Information wants to be free.”

  Perhaps. But still there remain a couple of options to consider.

  Brad Templeton, chairman of Clarinet News Service, made an interesting comment when asked whether he was troubled by customers making copies of their downloads and broadcasting them across the Net: “One of the reasons Clarinet does not have a big problem with piracy is that you can’t steal our clippings and post them without running a substantial risk of getting caught by other customers. People on the Internet will report you.”

  In other words, Templeton relies on a basic human trait: people don’t like seeing others get away with something. Where customers are already paying for a service they appreciate, watching someone else steal the same service can raise ire. There is nothing new in this. Despite all the money retail chains spend on new surveillance devices, their most important defense against shoplifting has always been the general goodwill of customers who report suspicious activities.

  This trait makes it especially urgent for the CIC not to persist in its initial strategy. For if harsh threats drive normal people to an underground info-market, simply in order to continue harmless fair use practices, those citizens will cheer more serious copyright violators, rather than tattle on them. In other words, the accountability desperately sought by CIC members may be achieved, but only in an atmosphere of trust.

  An even more laid-back vision is seen in the phenomenon of “shareware,” which is akin to an honor system. Small-scale software designers often publish their works for free copying via the Internet. First-time users see an appeal saying, in effect, “If you like this program, please send $10 to me at the following address.”

  To the amazement of cynics, this actually works! At least to a degree that compares well with semiannual appeals by the Public Broadcasting System. A hefty minority of shareware users feel obliged—through guilt, morality, or perhaps loyaly toward a “commons” they revere—to pay for the ideas and work of others, even when no threat stands behind the request for payment.

  Of course this seems no way to run a large-scale business. Nor is it easy to see the principle applied to other realms of creative endeavor. Can you envision shareware applied to art? Or to a casually viewed television show?

  Well, maybe not in the short term, but in the long run ... ?

  Socially and psychologically, the phenomenon of shareware depends on two things: relative wealth and a sense of shared citizenship. People like to feel good about themselves. If it isn’t too onerous or expensive, they will gladly pay a little. Different people will have diverse standards, and the whole effect may prove meaningless if the new era becomes centrifugally sundered into a myriad microscopic “cybertribes,” self-centered and mutually suspicious, so that all sense of shared civilization vanishes.

  And yet, as we will see, such a breakdown is not written in the stars. People can still prevent it. If we do manage to preserve and enhance the requisite sense of wealth and citizenship, expanding them to include a worldwide polity, there may yet be a chance to see something both strange and marvetous—a culture where people pay royalties to creators because it seems the right thing to do.

  Before deciding how likely that may be, we should take a diversion through chapter 5 to see how the debate over transparency sinks its roots deeply into gritty, cantankerous, ever-fascinating human nature.

  AN OPEN SOCIETY’S ENEMIES

  I myself am a big fan of information flows remaining free from restraints imposed by government, but have no objection to restrictions imposed by the private sector using property, contract law, or technology.

  SOLVEIG SINGLETON, DIRECTOR OF

  INFORMATION STUDIES, CATO INSTITUTE

  Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.

  ALEXANDER HAMILTON

  This book, together with its argument for general transparency, is based on several assumptions. Among the most important is that liberty can face peril from any part of the sociopolitical landscape, and therefore light should shine in all directions. This point is central, because so many of those who support widespread anonymity and encrypted communications—libertarians, free-market republicans, cypherpunks, and various allies—see those tools as vital bulwarks against one paramount source of danger: government.

  If government truly is the sole credible threat, then it would be appropriate to demand unevenness in the flow of information. To prevent abuses of power, we would be obliged to (1) force officials to work in the light, closely scrutinized by all citizens (on this we agree), and (2) blind the state, denying it many powers of sight by using masked communications and shielded identities, lest officials collect and abuse data about citizens. We would do this even if it reduced government efficiency or effectiveness, as a bulwark against tyranny.

  Elsewhere, I discuss several flaws in this reasoning, for instance, the lack of any historical evidence that blinding an already accountable government ever resulted in greater safety or freedom. (Weak-blind governments that swiftly gave way to horrid tyrannies include 1917 Russia, 1926 Italy, 1933 Weimar Germany, 1936 Spain, and 1948 China—hardly a resounding endorsement for this prescription!) In this section, however, I will address that other core assumption, the notion of a single threat to liberty.

  At one level, this is yet another example of the ongoing struggle between Platonic idealism and brass-tacks empiricism. Is it reasonable to call all governments inherently vile, because a fraction of them performed beastly acts? Georgetown University Professor Dorothy Denning thinks not.

  I tend to be a pragmatist and am skeptical of anything that appears idealistic while not being grounded in experience. Many people argue that governments are inherently dangerous and use as evidence Nazi Germany and Communism. While I don’t dispute that, it seems that many of the horrors resulted from pursuing some ideal society. Perhaps those governments that are well grounded in what works, and what does not ... survive and uplift their people.

  While I share Denning’s distrust of grand generalizations, I will stipulate along with her that governments are, by their very essence, extremely dangerous concentrations of power in need of special scrutiny. So, for the sake of argument, we shall let a leading cypherpunk/libertarian, Hal Finney, define the terms for discussion: “Standard libertarian analysis of government defines it as that institution in society which can legitimately exercise the use of force and coercion. Government is unique in that it can use force against you. Corporations can only operate through persuasion.”

  For this reason, Finney contends, government must be held to a much higher state of accountability than corporate interests. This is already the case in the United States and most major nations in the neo-West. Elected officials are answerable to voters. They face more rigorous regulations, codes of conduct, and routine scrutiny than the officers of any company.

  As they should! Institutions armed with police and military power—all the way to nuclear weapons—must be watched with great care. The worst crimes of history were performed under the color of state authority. And “authority,” as we’ll see in the next chapter, is a word we have been taught to hate. A careful reader will note that throughout this book I never call for removing any practical means of dividing, supervising, or devolving governme
nt power into units that will keep it harmless. In fact, I recommend numerous ways to increase the accountability of state officials by combating the fallacy of secrecy, and by adding new methods of transparency and light.

  As cyberspace entrepreneur Esther Dyson prescribes, “Our best defense [against government spying] is offense. Spy back! We need the ability to follow more closely what governments are doing.”

  Where I part with cypherpunk dogma is in proposal number (2) on page 108. Even most libertarian scholars concede that government is ideally a tool that can enable free people to enhance and protect their liberty. If there remain other power centers that might endanger liberty, blinding government may offer those cliques the very darkness that they need to conspire against freedom, or even seize the tool of state power for their own purposes.

  MIT Professor Gary Marx expressed this unease in a formal way.

  Restrictions on government are not a sufficient guarantee of freedom. Taken too far, they may guarantee its opposite, as private interests reign unchecked. For Orwell, the state and the economy were synonymous, and the threat to liberty was only from big government. But in our age of large and powerful nongovernment organizations, a broader view and new legal and policy protections are required.