Computers, Privacy & the Constitution

The Entire Provenance of You - Signifiers of Identity

In addition to Eben, this piece owes a significant debt to several thoughtful questions presented in office hours by Mariah Genis, Madiha Choksi, Matt Conroy, and Rohan George.

-- JoeBruner - 28 Apr 2018

Introduction: The Dying Idea Of A Place Without Papers

In the 20th century, My family and teachers taught me totalitarian nations, Nazi Germany, the USSR, required carrying papers everywhere to prove who one was. This was wrong. For us, in America, not doing this was a source of our American exceptionalism, our provenance as a custodian of freedom. It was a lie because most people needed to drive every day. It was a lie because before any German nation-state and the barest idea of Communism were born, papers were here. But that lie contained a valuable idea: A person in a free society cannot be made to give an account of themselves without reason. In the early 21st century, we had fascist week: Teachers blew whistles in the halls, demanding to see our arbitrary blue booklets or we got a bad grade. This was illustrating the badness of a system. This year, my students received detention for not having a school-issued agenda booklet on their person. The parody has become a reality, but it is a reality oppressive and visible enough to provoke annoyance, resistance, and objection. If the desire of the state for everyone to carry identifying papers can be combined with the already-manifest hegemony that states not carrying a smartphone is impossible, we risk having the current reality obliterate its contradictions and become totalizing and unquestionable. But the joke is on us - we are already mostly there, carrying personally-identifying radio beacons in our pocket which the state listens to.

In the Wittgensteinian sense, giving an account of oneself is a language game where we provide reasons for our actions, for our location, for ourselves. The matter of the collapse of the previous understanding of giving an account of oneself is the focus of the second part of this essay. But, first, there is a story of people, and one person in particular, who hacked the legal methods of giving an account of oneself in their time to ensure their freedom in America's past. Despite a hostile judicial system and equally powerful forces of hegemony, simple legal tools used in unintended ways were sufficient to save many people from bondage, rape, violence, and all else that comes with being relegated to subhuman status.

Part One - 1740-1865

Royal Navy Impressment And The American Response

In the 18th century, England's manpower shortage in comparison to its continental rivals and its constitutional hostility towards conscription created economic incentives for impressment, with a fascinating array of legal fictions attached. Criminals, drinkers, and those who could give no account of themselves were "volunteered" for naval service, sometimes by armed gangs. Merchant ships would be stopped at sea, and the merchant sailors were taken into the navy and replaced with malcontents, or sometimes trusted Navy men who would desert the merchant ship in the next port and return to their home ship.(1) In the second half of the 18th century, England's colonial ports were heavily targeted for impressment. In 1757, when the Seven Years War among the European great powers was in full swing, a full 800 men were rounded up in New York City, "all manner of tradesmen and negroes."(2) Resistance to impressment was one of the many things souring colonial North America on membership in the Empire.

After the Revolution ended and various protests in Great Britain and her colonies led to the gradual phasing out of impressment of people on land, a new legal fiction emerged: American sailors at sea were impressed on the feigned basis of their being British merchant sailors or pirates. In 1796, Congress passed a statute to address this problem by providing sailors with certificates: For twenty-five cents, any man with proof of citizenship could receive a certificate giving their name, height, age, and general appearance and stating they were a US citizen.(3) It is difficult to say whether these certificates reduced impressment; They were not always respected, sometimes because the descriptions were too general(4). Early evolution of tattooing, scarification, and body modification involved making sure sailors were unique enough in appearance to be identifiable should they die at sea or be impressed - by making oneself more distinctive, the identifying document can work better. But still, it appears impressment declined after the Napoleonic Wars not because of identifying documents or international law concerns, but because Great Britain's naval hegemony was so assured there was no longer a need for a hundred-thousand man military navy.

Fraying Of The Lie

The creation of Seaman's Protection Papers, without any legislative intent to do so,(5) ended up threatening what James Baldwin calls the lie at the heart of American society - the black man is not a man. Remember that ships did take "negroes", and, among free black men, seafaring was one of the most popular and rewarding occupations available.(6) In the early 19th century, when the American maritime shipping industry exploded to employing 100,000 people, a fifth of them were black(7), and for a black man in America, the Seaman's Protection Papers were especially useful documents for two reasons. First, they helped prove that one was a free person, rather than an escaped slave, who could be recaptured even in a free state under the Article 4, Section 2 fugitive slave clause. An excerpt from Jamal Greene's Anticanon illustrates clearly how bad the redneck entrepreneurial industry of slave-catching became, and how closely it could be protected:

"Prigg v. Pennsylvania could easily be called the worst Supreme Court decision ever issued. The human tragedy of the decision is breathtaking. In an opinion by Justice Story, the Court reversed the criminal prosecution of a slave catcher who had kidnapped and sold into slavery a woman, Margaret Morgan, who likely was not a fugitive slave, and her two children, who assuredly were not.297 The Court’s holding was that the Fugitive Slave Clause prohibited states from subjecting slave catchers to a state-sanctioned civil process, except to prevent “breach of the peace, or any illegal violence.” Under the logic of the opinion, however, the kidnapping could not itself be outlawed as “illegal violence.” Put otherwise, violence against blacks was “legal” violence; “illegal” violence was violence against whites. The decision abided the constant threat of enslavement experienced by free brown-skinned Americans in both the North and the South. By constitutionally forbidding states from preventing private violence against blacks, Prigg worked a simultaneous assault on due process and on equal protection, the twin pillars of the modern Fourteenth Amendment."

In such an environment, a piece of paper bearing an eagle and invested with the judicial power of the federal district was an extremely desirable talisman against evil, and with even the least-skilled sailors earning over ten dollars per month(8) it cost less than a day's pay to buy proof of freedom.

My means of escape were provided for me by the very men who were making laws to hold and bind me

In this context, Frederick Douglass(9) explains that a common way of escaping slavery was by impersonating another individual who had free papers that resembled them, and while none of his colored friends with free papers resembled him, one Sailor friend did. Douglass reviewed everything he had read about boats and sailing so he could sound knowledgeable and got the flashiest possible sailor outfit. He says, "In my clothing I was rigged out in sailor style. I had on a red shirt and a tarpaulin hat and black cravat, tied in sailor fashion, carelessly and loosely about my neck. My knowledge of ships and sailor's talk came much to my assistance, for I knew a ship from stem to stern, and from keelson to cross-trees, and could talk sailor like an "old salt."

He bought a ticket and boarded a train headed out of Baltimore into Pennsylvania, a free state which refused to assist in slavecatching, and the conductor carefully and rudely examines the free papers of all the other black people on the train. When he gets to Frederick Douglass, Mr. Douglass does not have his papers out. The conductor confronts him, and they have an exchange:

""I suppose you have your free papers?" To which I answered: "No, sir; I never carry my free papers to sea with me." "But you have something to show that you are a free man, have you not?" "Yes, sir," I answered; "I have a paper with the American eagle on it, that will carry me round the world." With this I drew from my deep sailor's pocket my seaman's protection, as before described. The merest glance at the paper satisfied him, and he took my fare and went on about his business. This moment of time was one of the most anxious I ever experienced."

In many of his later pictures, you can still see him wearing a black cravat, loosely and carelessly tied around the neck.

Let us render the tyrant no aid; let us not hold the light by which he can trace the footprints of our flying brother

By sharing identity papers with their friends, free black men and women enabled others to give an account of themselves that could secure their freedom. As long as we live in a country where the descendants of overseers guard the descendants of slaves in Georgia, in the Carolinas, and even in New York, and the descendants of plantation owners own and make profit off of private prisons, I cannot abide the US government having a perfect, or even a very good system, for identifying persons. Making it only mediocre in its security and efficacy changes the political economy by ensuring that the government must make significant effort to identify a person so they snatch only the criminals dangerous enough to be maybe worth confining, if incarceration can even be morally justified at all. Frederick Douglass did have a hat and a beard, so he might have been able to beat modern facial recognition systems, but India's Aadhar contains retina data too, which would have been tough.

Even if you do not share my skepticism of the entire enterprise we call the United States Criminal Justice system, in a time where even DREAMers are now being deported, I have found myself beginning to draw a line on this issue. Several people who have come into the United States on borrowed and forged papers have treated me like family, and I care for them like I do my own family members. To ensure that finding them and identifying them is a trivial task is to ensure that their lives can be ruined with the caprice of Frederick Douglass's old master who could beat a young boy because he thought one of his horses might be getting sick. Resisting something does not involve submitting to it and making it more powerful.

Please consider that free papers are only necessary when there is a distinction drawn between those of us who are human beings and those of us who are not.

Part Two - Nunc, et Semper, et in Saecula Saeculorum

Bill Brennan's Been Dead A Long Time

In the present day, we are faced with two large issues that threaten the twentieth-century American dynamic of giving an account of ourselves.

First, the vast majority of human beings in America cannot go about their daily lives and ordinary tasks without giving an account of everything they are doing to numerous private corporations, the state, and any sufficiently enterprising listener. This is a massive idea with implications everywhere which Eben, many people in this course, and more and more people everywhere are considering. The choice not to give an account of ourselves, or to give a selective one, or to give a false one, are all disappearing. Note that the First Amendment does not contain an exception for lies so long as they fall into "The Freedom of Speech."

During oral arguments on the case Branzburg v. Hayes, the Solicitor General for the state of Kentucky submitted an exceptionally short brief stating that, aside from the 5th Amendment right to avoid self-incrimination, the Bill of Rights contains no testimonial privilege - anyone can be made to testify to a court of law or a grand jury about what they know. Bill Brennan asked whether a grand jury could ask a man his religion, or who he voted for in the last election.(10) If this non-testimonial privilege about core facets of our personal identity exists, it follows, logically, that people cannot be forced to give up this information in any way, by word or sign, by action or inaction, by tracking cookie or man-in-the-middle platform. Brennan's right could be utilized to argue it is permissible to regulate manufacturers and service providers to ensure that people are not inadvertently forced or induced to testify to anyone.

Emma Watson's Body Lies A-Mouldering In The Grave

Second, because we do not use very good techniques for ensuring the provenance of our communications and huge amounts of data are accessible to feed any machine learning algorithms, we risk a future where, instead of giving accounts of ourselves, it is unbelievably easy for other people to impersonate us without our consent.

Consider the following: Platform companies sit in the middle of all of your communications and control your access. Either your gmail or your Facebook could be used to send a communication that, stylistically, sounds like you and originates from where all your communications originate. And, if they control the logs, your ability to prove that it was not actually you sending that gmail, or making that Facebook post, or making that tweet is essentially zero. If tweets are now a critical method of political communication, it is trivial to imagine how this could be abused for the rise and fall of political fortunes.

But it goes even deeper. Human beings are primates. Primates believe what they see and imagine what they hear, or read. Rapidly emerging deepfake technology(11) showed in 2017 that it is possible, given enough video of a person, to seed a machine-learning algorithm with data and superimpose their features on a second video to the point where it is indistinguishable to the naked eye. Unsurprisingly, this started getting a lot of attention when it was used to make porn of celebrities, leading Reddit, Youtube, Twitter, and even Pornhub to ban it on the basis of being "involuntary pornography." But actually stopping the evolution of the software and increases in computing power is impossible. When these videos are indistinguishable to the naked eye, we will have to use software to identify bugs or oddities to determine their provenance - a software checker for fake or real video. But, the fundamental philosophy of logic at the heart of computer science indicates if the software does a check for reality, that check can be accounted for, and the video can be made to pass the check. Our ability to believe what we see - and to prevent others from giving an incorrect account of us - will be in a level of danger that has never existed before. Eben himself, for all his privacy concerns, has given away enough video that someone could seed an algorithm and make a deepfake of him. With Google's work on analyzing writing styles and voice, in our lifetimes it will be possible for Google to create an Eben Moglen talk where a guy with his exact appearance walks around, talks using Eben Moglen language and voice, and says he was wrong about everything And, now, everyone in the 21st century produces and uploads enough video of themselves to make this possible by the time they are 15.

I do not know whether mass politics can survive such powerful faking technology. If we cannot know the provenance of political recordings and videos on the most profound level, will we have to reduce politics down to the web of people we can trust personally, and our second and third-order connections? It took too many years for people to understand and break the story of fake news and algorithms. We should not be so behind on this one. Control over our own provenance becomes doubly important when we may have to give accounts of ourselves and our behavior against the most convincing fakery that has ever existed.

Hi Joe,

The piece is thought provoking and a joy to read. Thanks for writing it!

I do have some thoughts on the last part. The first is that we do have the tools to ensure the provenance of our communications with PGP/GPG or HTTPS. The whole point of signing something is to verify that you are the one who created and sent the message. I think the solution is simply we need to train people from a young age how to use these tools, and the importance of using them. In that sense, it strikes me as a hopeful moment that a bunch of people are starting to see this problem outside of just the nerds which may give the political willpower necessary to make a change on this front and incorporate the usage of cryptography into the basic education of all citizens.

I think there are also second-order benefits from leveraging the need for veracity into encouraging adoption of cryptographic tools. The first is that these tools by the nature of public key cryptography provide for both secrecy and verification. Therefore it is a small leap to get people talking about privacy from talking about information verification. Secondly, and maybe I am getting into ideologue mode at this point, it provides an avenue to talk about the importance of free software because the lesson is about trusting in computers makes it an obvious question for a student to want to know how they can trust the tool. Which of course the answer is you ultimately need to decide for yourself, but it really helps if you can read and understand the program, and oh by the way you should be able to change it so that you trust it more.

There are downsides though to this sort of solution. There are potentially problems with "citizen-journalists" not being believed if they produce a video of a cop shooting someone running away because then the police can just claim that it was faked and who is this that signed it. That might be a poor example but I do think there is a concern of re-concentration of power in the media. There are also concerns about putting all of our eggs in the cryptography basket because it gives a larger incentive to try and break crypto, and since public key cryptography is especially vulnerable to quantum computers, this might be problematic. That is a technical issue that can be solved, but it is worth being aware of.

Hopefully that was helpful and maybe we can start to push things forward on this front.

-- MattConroy - 30 Apr 2018


I think your first point is correct. We should all start using cryptographic signatures from a young age. Maybe I will work on a unit for second-graders on how to sign with a PGP key that replaces "how to sign your name in cursive." I think one hour a day for three days would be enough:

Hour 1: Anyone using a machine can write down your name and say they are you. They could pretend to be you and say mean things to your friends. Isn't that wrong and scary?

Hour 2: In the modern world, we have a new way to sign our name. This is very hard for other people to copy because, while everyone knows your name, you can have a secret mathematical number that is unique to you. It doesn't cost any money and anyone, even a little kid, can get one. You can use it to make a signature other people cannot copy.

Hour 3 - If someone else has a unique number, you can write them a secret letter that only they can read. No one else without their secret number will be able to figure out what is in it. Isn't that exciting?

Cursive is stupid. Public key cryptography is useful.

If you get kids learning this in second grade, I think it's a good segue into philosophy of free software in third grade. Of course, this does not work for communication over the platforms, but learning that is part of the point.

The issue of having journalists sign material is interesting, but most of the journalists I know don't get most of their video themselves - even at the major networks, nowadays a lot of their footage is originally random citizen footage. And, in the case of signing it, that does compromise an anonymous source. Branzburg v. Hayes is after all a case about how journalistic freedom is abridged if you have to give up the identities of all your sources when the State asks. Byron White writes a terrible majority decision where he eventually invents one of those stupid con law tests where you "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest." But that was a long time ago.

- May 3rd 2018 A few days later, I have a new thought I either need more sleep or less sleep to properly articulate, but the dissent mentions "The Court thus invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government." Using this to keep the state out of the data seems, at first, like a dead end. This is one thing I think people don't get. If you leave a treasure trove worth millions or even billions of dollars sitting around on the internet, people will get in. Designing around the idea that you can do a really good job of keeping the top 3 national intelligence services out of your giant pile of data is a really stupid idea. Anyone sitting around with a good botnet to create tons of places to tunnel through and a big enough pile of bandwidth can wait until they get a 0day exploit to crack fb user accounts and get all the data online; I have actually empirically tested and proven that the amount of data Facebook gives you when you request all your own user data is not even all the data readily accessible to you when you log into your account. (IOT means that's a lot cheaper than it used to be)

The dissent's opening idea seems like a dead end, but something feels interesting about it. If the platform is, at least at certain times, an annex of government by virtue of extensive cross-contamination and collaboration and delegation of decision-making, maybe you can use that as leverage to get somewhere, whether it's state action or a 1st/9th amendment right to gather information or even starting out with freedom of information act requests. -- JoeBruner - 30 Apr 2018



1 : The legal history of press ganging in England is fascinating and if anyone finds good resources on the topic, please send them to me.

2 : Gary Nash, The Urban Crucible, p. 151

3 : 1 Stat 477

4 : "Genealogical Fallout from the War of 1812", Ruth Priest Dixon

5 : Madison's papers contain a discussion of the bill and his intentions in getting it passed. Notably, the bill mostly failed to do one of the things he intended, protecting non-citizen sailors sailing under the American flag, and the papers make no mention of any race issue

6 : For a book length treatment on black American sailors prior to 1865, see Black Jacks: African American Seamen in the Age of Sail, by W. Jeffrey Bolster, which includes the very sad ending of how, once all the slaves were freed, there were too many blacks competing for maritime work, so they had to be systematically excluded.

7 : Black Jacks, W Jeffrey Bolster, relevant excerpt here:

8 : The University of Missouri keeps an excellent database of historical wages and prices in the United States, which is extremely helpful for getting context when reading US history. Labor supply for the Merchant Marine was slippery. During a drought, any able seaman could get what would be considered high wages for a free working-class white man on land. A $10/month wage during the early 19th century was closer to what a boy or apprentice would earn in a city like New York or Boston, and attempts to foist wages like these onto sailors led to several sailor's strikes throughout the first half of the 19th century.

9 : The entire Frederick Douglass section is from the later edition of his autobiography, especially chapter 1 of the second part. I strongly suggest reading the entire thing, as he is an amazing writer who can casually put you in his position in the most profound way. It is available for free here: The material used in this paragraph is mostly from p.240-246

10 : I do not have this story on paper and have not seen a transcript of the oral argument, but this story was told to me by Vince Blasi, who was there back in 1972.

11 : Vice broke this story in December 2017, but before that it was getting some notice within Reddit. See, e.g.,


Webs Webs

r7 - 16 May 2018 - 18:12:54 - JoeBruner
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