Computers, Privacy & the Constitution

On Confronting the Opposition

-- By TrippOdom - 01 May 2018

Army of the Few

Like many visionaries, Eben Moglen appears to be of two minds as to his goals regarding the ideas that he propagates. At times, he demonstrates a belief that is not only possible but imperative that a wide range of people take up his idea of liberty or one like it. In 2014, he wrote

To the citizens of the United States, a greater responsibility is given. The government is projecting immensities of power into the destruction of privacy in the world's other societies. It is doing so without any democratic check or control, and its people must stop it. Americans' role as the beacon of liberty in the world requires no less of us.

Four years and a presidential election later, he views his ideas as the purview of a select few, a minority elite fighting a near hopeless intellectual insurgency on the basis of contraband knowledge. “[T]he indifference of the people. You,” he says to his students, “are what stands between us and that. Because you know.”

This presents a fundamental conflict. If victory in the war for liberty requires mass participation, then any ideology which is accessible only to the few is inadequate to the task.

Give Us This Last Man

Both Moglen’s optimism and his pessimism are justified. While mass adoption of the cause of digitally-oriented liberty is possible, there are aspects of Moglen’s particular form of advocacy that serve to limit such mass adoption. One of the essential obstacles is a rhetorical strategy which Moglen raised once in a personal discussion regarding the value to advocacy of appreciating the opposition. He said, to paraphrase, “you do not make your point more persuasively by giving in to the doubts raised by those you disagree with.” This points to a more fundamental failure to confront valid arguments raised against Moglen’s positions and integrate them into a more robust rhetorical package.

Moglen’s article “Privacy Under Attack” gives one example. It is an extremely lengthy article for the editorial format. Its length is justified by the number and depth of insights it contains, but it is astounding that in such a lengthy missive on internet surveillance, he never addresses the issue of terrorism, which defines the larger discourse on internet surveillance. Where Moglen briefly mentions efforts against “’non-state actors’” he dismisses them as a “scheme” which has been “bought” by the gullible. Scarcely acknowledging the siren song of “security,” Moglen fails to silence it.

Moglen knows but does not overcome the fact that his audience is actively demanding exactly the dystopia he hopes to warn them of. He describes in ominous tones a world where terrorism is defeated, where hate speech is adequately punished, where “big data” enables both sociological and medical breakthroughs, and where the populace continues to perceive themselves to live in a self-governed democracy. In this sense, Moglen is Zarathustra, preaching to the villagers of the last man and the overman.

"I Don't Mean Lost, I Mean Forgotten"

To be fair, this is not Moglen’s perception of the coming dystopia. His background and life experiences have given him a deep appreciation of the ways in which an authoritarian state not only offends a free man’s sense of liberty, but may ultimately infect his daily life and social interactions with paranoia and insecurity. But this is a perspective which belongs to “those who lived through 20th-century totalitarianisms.” The army which Moglen explicitly seeks to recruit is a new generation, one coming of age in the 21st century.

In this century the Gestapo and KGB are perceived as comical boogiemen of a bygone era, while the deaths of September 11, few though they are in comparison to the horrors of the past, are an ever-present national trauma. The consequences Moglen’s “liberty” seeks to prevent are distant, imaginary, while the fears that his dystopia assuages are salient, subjectively real.

Dank Ideologies, Free of Apologies

But how can these fears and the perceived benefits of digital centralization be addressed without compromising or diluting the vision of digital liberty described above?

Selling Superman

In responding to critics, Nietzsche is surpassed by his much inferior but incredibly influential successor, Ayn Rand. When Ayn Rand describes her superman in The Fountainhead, she does not avoid the dark implications of her ideology. Her superman literally rapes a woman and ultimately bombs an orphanage. At the climax of the novel, he justifies his actions to a jury of his peers and is exonerated. Rather than dismiss the criticism that her individualism lends itself to immoral acts, she embraces it and builds that claim into her inspirational depiction of the toxic ideology she promotes. Her books have had a profound impact on American society and are found in schools across the country.

Facing Their Fears

What would such an approach look like in regards to internet freedom? To take the example of terrorism, a forceful version of internet liberty capable of overwhelming the fears that define the present discourse must embrace the existence of terrorism in its vision of liberal democracy in the digital age.

Such a compelling and positive depiction of terrorism has already taken place in the politically conservative nation of Japan. The widely popular Japanese television show Code Geass explicitly frames its main character as a terrorist who kills American soldiers and innocent Japanese civilians for the purpose of defeating American imperialism. Yet stores nationwide are stocked with notebooks and school folders decorated with his image. If an aesthetically pleasing version of terrorism can be used to sell merch and nationalism in Japan, it can be part of a successful ideology in the name of digital liberty.

Conclusion: A Cause Worth Dying For

The version of Moglen’s narrative that is needed now is not one which blithely insists that liberty is more important than the perceived benefits of centralization. What is needed is a vision of liberty so forceful that it inspires an active and aggressive desire to sacrifice that other world of safety, progress, and convenience for the possibility of something more. It is for the purpose of developing such an aggressive ideology that thorough and genuine appreciation of opposing arguments is necessary.

I don't think this is in fact about me at all. I'm not sure why casting the ideas expressed as a criticism of my failure to confront some objection to my arguments helps. Someone having ideas like mine could also have the ideas being expressed here, but I don't. And whether those ideas are compelling on their merits, or for some other reason, has nothing to do with whether I ought to hold them in order to respond to an objection.

So I think the best route to improvement of the essay would be to remove me and my work from it altogether, and express whatever the idea is here net of the idea that I should have had it. In that form, I gather it would stand for the advantage of having "an aesthetically pleasing form of terrorism in the name of digital liberty," with which to displace a negative, dark and aesthetically (I don't know what, "displeasing") form of terrorism currently being used to campaign against digital liberty.

Another route to improvement, I suppose, would be to discuss my ideas. I think it's less interesting—probably not a completely idiosyncratic view on my part—and it's harder. That's because discussing my ideas is not the same as discussing something I am alleged to have left out. The Snowden lectures were not about terrorism because Snowden wasn't about terrorism. (Those are the much longer lectures from which the Guardian pieces were condensed; the length of the condensation, 10,000 words, was chosen by my editor, the Guardian's editor-in-chief Alan Rusbridger. Why he wanted to run the pieces so long is a long historical story.) What I am writing now is not about terrorism, either. It is fine, so far as I am concerned, for other people to write about terrorism, and to either use or reject my ideas in connection with whatever they write about terrorism, but that doesn't mean I must do so too. To discuss my ideas, then, is to grant them the context in which they exist, as well as whatever context you might also want to put them in. It is not sufficient to say that the major fault of my writing is that it isn't the writing you would have done if you were writing about my subject.

Response - Joe Bruner

It's an interesting proposition. I have thought of it from a perspective that is sort of similar, but also sort of different. The benefits of this big data stuff are pretty well-advertised. When I taught high school speech and debate and we had privacy topics, the kids would always complain, "They have concrete benefits. Reduction in terrorism. Better agricultural productivity and less food waste through the Internet of Things. All we have is this nebulous privacy thing, but what's the impact privacy has on us?" I think the primary difficulty with Moglen's ideas (I think it took me about 14 months of knowing him and really trying to listen to fully appreciate the heart of what he was getting at) is that a bunch of forces make it really difficult for people to imagine two things:

1. One, what it's like when the other foot drops. Moglen said in the 1970s reading a lot of Sci-fi made it easier to see the problem coming, and that's probably still true today - you mentioned Code Geass so I'll say Psycho-Pass is really excellent for this issue. But for most people in the 21st century, privacy is your mom not walking in on you masturbating. Seeing it as a threat to your existence requires either a lot of imagination (and imagination is really dying slowly since we no longer have to spend time just imagining random things when there's Horriblesubs batch torrents of 20 shows you haven't seen) or having an existence that is already precarious, which leads on to the next point:

2. Two, even if the other foot could, in theory, drop, most people really struggle to consider that a serious and practical problem. Trump and Brexit make it somewhat easier, but it's still hard, and I know a fair amount of Dreamer kids still on insta and Facebook. Even if the state or corporations could, in theory, do all sorts of things, we don't see it as much more likely than the state using its nuclear arsenal on us. In my view, this is the hardest problem of all - the negative impact of the Trump election and political partisanship and ineffectiveness has been that trust in politicians falls while trust in the military and the deep state rises, counteracting some of the benefits Snowden gave us.

In my view, these are the really hard problems. If they can be addressed, I think arguments in favor of robust privacy will generally prevail over advantages in catching terrorists or outing neo-nazis. Terrorists get at most a few thousand a year. Myanmar plus Facebook get more Rohingya, and nobody knows how many people China is disappearing. And Neo-Nazis, we should turn that back on them by asking "If the Neo-Nazis do come to power one day, what tools will we have lying around for them to use?" If you have a robust general social graph of the United States and the names of 5 random Jews, you can probably find them all.

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r3 - 11 May 2018 - 15:57:45 - EbenMoglen
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