PART I: Westward the Course of Empire
"Westward the Course of Empire - Part 1" A talk given by Eben Moglen at Columbia Law School on October 9th, 2013 http://snowdenandthefuture.info/PartI.html WebM: https://archive.org/download/20131009SnowdenAndTheFuturePartI_201310/Snowden... mp4: https://vimeo.com/76656494 -- Good afternoon. There is no introduction. After 26 years in this place it feels ridiculous to me to pretend that anyone is especially honored by my presence here. If I am to be frank about it, I invited myself. Not in the way that Edward Snowden invited himself to Sheremetyevo Airport. Nor in the way that Julian Assange invited himself to the Ecuadorian embassy in London. Surely not in the way that Chelsea Manning invited herself to 35 years in Fort Leavenworth. No, law professor-like I have assigned myself no onerous duties. I undertook nothing more than to come here and to tell you the truth. I don't wish to force my ideas on anybody, but the truth is that I feel forced to speak myself. No one will remember much of what I have to say, but of the things about which I came here to speak—both those that have been done and those that remain to be done—I must say that they will never be forgotten. In the third chapter of his History of the Decline and Fall of the Roman Empire, Edward Gibbon gives two reasons why the slavery into which the Romans tumbled under Augustus and his successors left them more wretched than any previous human slavery. In the first place, Gibbon said, the Romans had carried with them into slavery the culture of a free people—their language and their conception of themselves as human beings presupposed freedom. And thus, Gibbons says, oppressed as they were by the weight of their corruption and military violence, the Romans yet preserved for a long time the sentiments, or at least the ideas, of a freeborn people. In the second place, the empire of the Romans filled all the world, and when that empire fell into the hands of a single person, the world was a safe and dreary prison for his enemies. As Gibbon says, to resist was fatal, and it was impossible to fly. The power of that Roman Empire rested in its control of communications. The Mediterranean Sea, which was the transit hub of every western civilization, was their lake. And across their European empire, from Scotland to Syria, they pushed the roads—roads that fifteen centuries later were still primary arteries of European transportation. Down those roads which, as Gibbon says, rendered every corner of the Empire pervious to Roman power, the Emperor marched his armies. But up those roads he gathered his intelligence. Augustus invented the posts: first for signals intelligence, to move couriers and messages at the fastest possible speeds; and then for human intelligence. He created the post-chaises, so that, as Gibbon says, those who were present when dispatches were written could be questioned by the Emperor. Using that infrastructure for control of communications, with respect to everything that involved the administration of power, the Emperor of the Romans made himself the best informed human being in the history of the world. That power eradicated human freedom. "Remember," says Cicero to Marcellus in exile, "wherever you are, you are equally within of the power of conqueror." The empire of the United States, the global empire that followed from victory in the Second World War, also depended upon control of communications. Possibly the greatest military lesson of the Second World War was that he who has access to his adversaries' military communications prevails. At every level, from the tactical artillery duel to the greatest strategic naval confrontations in the Pacific, the new pace of warfare gave victory to the one who knew the other side's plans first. This was all the more obviously crucial in the development of the power to rule the world when, a mere twenty years later, the empire of the United States was locked in a confrontation of nuclear annihilation with the Soviet empire—a war of submarines hidden in the dark below the continents, capable of eradicating human civilization in less than an hour in an imperial confrontation whose rule of engagement was "launch on warning." Thus it was that the Empire of the United States came to have precisely the same view of the effort to render everywhere pervious to American power that had been the view of Emperor Augustus. And our listeners aspired to everything. Now, the structure of listening which came out of the Second World War—the spying on signals, the stealing of signals and the breaking of codes—this was, under everybody's understanding of the new order of power in the world, the crucial center of it all. And, while it has been commonplace to recognize since the end of the Cold War that the United States has spent for decades as much on its military might as all other powers in the world combined, it has not necessarily followed in people's consciousness that we applied to the stealing of signals and the breaking of codes a similar proportion of our diligence. That system of listening, which had at its center the same reality of power, that system which grew up under the National Security Act and its successor legislation in the United States, had a particular systemic form: listening was under military command, controlling large civilian workforces. That structure, of course, presupposed precisely the foreign intelligence nature of the activity. Military control was both a symbol and a guarantee of the nature of the activity being pursued: everybody understood that if you had put such activity domestically under military control you would have violated the fundamental principle of the civilian control of the government of the United States. Instead what we had was a foreign intelligence service regarded as the most important basis of American power, responsible to the chief executive of the United States as commander-in-chief, and based in military control and military integrity. Because, of course, integrity was the other side of this coin. Military control ensured absolute command deference with respect to the fundamental principle which made it all "all right," which was: "No Listening Here." The boundary between home and away was the boundary between absolutely permissible and absolutely impermissible—between the world in which those whose job it is to kill people and break things instead stole signals and broke codes, and the constitutional system of ordered liberty. There's lots to be said—and we will need to say it as our time together goes by—about the morality of that assumption. But I must ask you to keep in mind that it also was accompanied by the reality of communications in the twentieth century, which were hierarchically organized and very often state-controlled. When the United States Government chose to listen to other governments abroad—to their militaries, to their diplomatic communications, to their policy-makers where they could—they were listening in a world of defined targets. As to which they were roughly entitled to their favored assumption, which was that everybody else was listening back at them on those targets pretty much just as hard as they could, which was of course way less hard than we, because we were the Empire. On this basis, we formed fundamental alliances with the other English-speaking societies in the world for a complete cooperation of signals intelligence, based around two fundamental predicates: the listeners in each of the English speaking societies were not listening at home, and they were not spying on one another. Therefore they and we stood back to back in their listening against the world. And on that basis, in the era of the digital computer, we began to be capable of taking everything. "Everything" was defined as all signals in the electromagnetic spectrum and its copper wire accessories. The basic principle was: hack, tap, steal—where the roof of every US embassy, and every American naval asset at sea, and every other place that we could cram antennas held the ones that we wanted to have there. And where every deal that we could make for exchange of signals intelligence among parties committed to listening gave us everything. Thus we could get what we needed, and we felt we needed it all. In the beginning we listened to militaries and their governments. Later we monitored the flow of international trade as far as it engaged American national security interests. But there is this about the weapons of war: In 1937, bombing civilian populations from the air was an innovation in the criminality of war, and Pablo Picasso found it worthy of his work. Less than a decade later, dozens of the greatest cities in the world lay in rubble and United States Government had dropped nuclear weapons on cities in Japan. Now the United States Government considers aerial bombardment to be the cleanest form of war. In the beginning we listened to armies, embassies, diplomats, government officials. Then we listened to the global economy. Now we are being told that spying on entire societies is normal. The regime that we built to defend ourselves against nuclear annihilation, in a world where access to the other fellow's signals is what makes victory, came at the end of the twentieth century under two forms of profound social restructuring. In the first place, the Cold War ended and the Soviet Union dissolved. An entire establishment of national security—which continues to absorb more resources in the United States than in all the rest of the world put together, and I am including the listeners—an entire national security structure re-purposed itself, not to spy upon an empire with twenty-five thousand nuclear weapons pointed down our throats, but at the entire population of the world in order to locate a few thousand people minded to various kinds of mass murder. In the second place, the nature of human communication changed. The system that they built, with all of its arrangements, was dependent as I said upon fixed targets: a circuit, a phone number, a license plate, a locale. The question of capacity was about how many targets you could simultaneously follow in a world where each of them required hack, tap, steal. But what happened at the beginning of the twenty-first century was that we acquired a new way of communicating in the human race—the beginning of the beginning of the beginning of the nervous system we are building in which each human being is a neuron in that great hive-mind called humanity. And from the moment we began to do that, two things began to fail: the simplicity of "one target one circuit" went away, and the difference between inside and outside vanished too. In particular it vanished in the United States, because so much of the intelligence of the brain being built for humanity, for better and for worse, resided here. Therefore the question "do we listen inside?" came to seem like a question about "are we going to lose the ability to listen at all?" About which, of course, fundamental doctrine of national security—whatever "national security" means—had only one acceptable answer. Into this mixture, of the structures of the twentieth-century imperial power and the reality of twenty-first century technology, a vastly imprudent American administration then intervened. Whatever else, history will record of them that they didn't think long before acting. Presented with a national calamity which also constituted a political opportunity, nothing stood between them and all the mistakes that haste can make for history to repent at leisure. And what they did, of course—in secret, with the assistance of judges chosen by a single man operating in secrecy, and with the connivance of many decent people who believed themselves to be doing the only thing that would save the society—was to unchain the listeners from law. Not only had circumstances destroyed the simplicity of "no listening inside," not only had fudging with the Foreign Intelligence Surveillance Act carried them into the land where law no longer provided them with useful landmarks, but they wanted to do it—let's be frank, they wanted to do it. Their view of the nature of human power was Augustan if not august. They wanted what it is forbidden to wise people to take unto themselves. And so they fell, and we fell with them. Our journalists failed. The New York Times allowed the 2004 election not to be informed by things that it knew, having made a decision which, no matter how many Pulitzer prizes it goes on to win, will always be a pain in our recollections (if not elsewhere). We failed collectively to show any outrage, because we were afraid. We did not demand the end at the beginning. And now we're a long way in. We had our Guernica and we paid little attention. And there weren't any limits anymore. They were living in an evolving net, with conscriptable digital brains gathering intelligence on all the human race for mere purposes of bagatelle and capitalism. So they perverted those places. And to the network operators we gave legal immunity in the United States for complicity, thus easing the way further. Then, there began a revolt inside. In Hong Kong, during his brief career as a public thinker and speaker—which I commend to your attention and which we will spend much time talking about in future times together—in his career as a public commentator, Edward Snowden said a very straightforward and useful thing; he said, analysts are not bad people, and they don't want to think of themselves that way, but they came to calculate that if a program produced anything useful, then it was justified. Because, of course, it was not their job to weigh the fundamental morality. Which is too bad, because the people whose job it was to weigh the fundamental morality failed more bitterly than we, and our journalists, and our everybody else. They fell, and we fell with them, because they refused to accept that there is a morality of freedom. And it was the people who worked for them who felt their failure first. So, from the middle of the first decade of the twenty-first century, people began to blow whistles all over the field. Those courageous people sacrificed their careers, frightened themselves, sometimes suffered personal destruction, to say that there was something deeply wrong. Later I shall try and show you both how they came to those conclusions and what they tried to say. But it is sufficient for the moment to say that what happened back was: Rule By Fear. It will be sufficient to say that, in their unwisdom, those who believed in the importance of the listeners and their activities sought to deal with those who blew the whistle by the harshest possible treatment. It is unfortunate to have to dwell on the extent of the failures, once the morality of freedom was no longer part of their world. Mr. Snowden said in Hong Kong that he was sacrificing himself—which he knew he was doing—in order to save the world from a system like this one constrained only by policy documents. Next time we meet we shall think long and hard about the political ideas of Edward Snowden—they are worthy of your respect and your deep consideration. But for now, once again, it will be sufficient to say that he was not exaggerating the nature of the difficulty. Because of Mr. Snowden, we now know that the listeners, in their aggressive effort to maintain the security of the United States by breaking anything that stands in the way of listening, undertook to do what they repeatedly promised respectable opinion in the trade they would never do. Systematically, they attempted what they had once and for all promised many a time in the discreetest but most credible fashion to respectable opinion, which then carried their water for them throughout our world. They always said they would not attempt breaking the crypto which secures the global financial system. That was false. When, on September 6th, the New York Times re-entered the pursuit of journalism in this area so triumphantly, by revealing the existence of Bull Run, publishing Mr. Snowden's various disclosures concerning both the substance of Bull Run and the National Security Agency's discussions of it, we learned that the United States listeners had been systematically and deliberately trying to subvert the crypto that holds the international financial system together, for years. And we learned a good deal more—which we shall spend more time upon on another evening, considering carefully what we learned in this respect—we learned that their efforts had been so far only partially successful. Within hours they had forfeited respectable opinion around the world, which had stood solidly in their corner all the way along. The recklessness of what they had done, and the danger to which it put the people in the world who don't accept danger from the United States Government, was breathtaking. When the morality of freedom is so thoroughly thrown away, it isn't only the "little people" of the world who suffer, but they do. The empire of the United States, the one that secured itself by listening to everything, was the empire of exported liberty. What we had to offer all around the world was freedom—after colonization, after European theft, after the forms of twentieth-century horror we haven't even talked about yet—we offered liberty; we offered freedom. In the twentieth century we were prepared to sacrifice many of the world's great cities, and to accept the sacrifice of tens of millions of human lives, in order to secure our selves against forms of government we called "totalitarianism," in which the State grew so powerful and so invasive that it recognized no longer any border of private life, and brought itself into everything that its subjects did. Where the State listened to every telephone conversation, and kept a list of everybody every troublemaker knew. So let us unfortunately tell the truth as it appeared to the people who worked in the system: When the morality of freedom was withdrawn, our State began fastening the procedures of totalitarianism on the substance of democratic society. There is no historical precedent for the proposition that the procedures of totalitarianism are compatible with the system of enlightened, individual, democratic self-governance. No one has ever previously in the history of the human race evolved an argument—and as I will show next time no argument can be evolved—that would give us any confidence in the ability of the procedures of totalitarianism to coexist with those of constitutional democratic self-governance. It is enough to say for now that omnipresent invasive listening creates fear. And I need not be Justice Brandeis to tell you that fear is the enemy of reasoned, ordered liberty. It is, of course, utterly inconsistent with the American ideal to attempt to fasten the procedures of totalitarianism on American constitutional self-governance. And this summer many of my dear colleagues and comrades in our movement have spent much of time in the United States pointing out that all of this is deeply is inconsistent with some important American right not to be listened to. Which right I too have, with them, and believe in deeply. But which it is not my point primarily to assert just this moment. Partly, as I shall suggest next time, because freedom is merely privilege extended unless enjoyed by one and all. But primarily because there is an even deeper inconsistency between American ideals and the subjection of every other society on earth to the procedures of totalitarianism. Freedom hath been hunted round the globe. Asia and Africa have long expelled her. Europe has been bullied into treating her like a stranger and England would take her into detention at Heathrow should she arrive. The President of the United States has ordered everyone not to receive the fugitive, and to prepare in time an asylum for humankind. You see how it works when you rewrite Tom Paine without the morality of freedom. And so our primary problem right now is that we allowed them to export slavery to the world. All of which, in one form or another, became clear, in one mind after another, within the bowels of the empire and its listeners over the last decade. William Binney—with whom we shall spend some time along the way—said in a public speech "I left the NSA because the systems that I built were turned against you. We had a legitimate charter in foreign intelligence gathering, but then they went and turned those systems against you—I didn't mean it, but they did it." People began to understand within the system that it was being sustained against democratic order, not with it. Because they knew that what had come unmoored had come unmoored in the dark, and was sailing without a flag. They were good people, and they began to break. And when they broke, the system broke them back. In the end, at least so far, until tomorrow, there was Mr. Snowden, who saw everything that happened and watched what happened to the others. He understood, as Chelsea Manning also always understood, that when you wear the uniform you consent to the power. He knew his business very well. Young as he was, as he said in Hong Kong, "I've been a spy all my life," and I believe him. And so he did what you have to have great courage to do, wherever you are, in the presence of what you believe to be radical injustice. He wasn't first, he won't be last, but he sacrificed his life to tell us things we needed to know. Edward Snowden committed espionage on behalf of the human race. Knowing the price, knowing the reason, knowing that it wouldn't be up to him whether sacrificing his life was worth it. So I would think that our most important effort, first, is to understand the message: to understand its context, to understand its purpose, to know its meaning, and to experience the consequences of having received the communication. Others will of course regard the first imperative as being to eliminate the message, and the messenger, and the meaning: to render everything as invisible as possible. Because invisibility is where listeners have to live in order to work. But I think we must let them go about that business. We must let them try to obliterate the message as best they can, and do our work, which is the work of understanding first. It will be difficult to judge, when you come to the moment where you consider yourself either entitled or obliged to begin doing so. The reason that it will be difficult to judge is that there is always much to say on both sides when someone is greatly right too soon. In the United States, those who were "premature anti-fascists" suffered later. It was right to be right when all others were right. And it was wrong to be right when only the people we didn't want to be were already there. I need not explain to you that it is possible to consider a man a terrorist who tried to do too soon what we took four years and 750,000 lives in order to achieve, namely to free the slaves. And I do not need to explain to you why it is that Gibbon considered the master key to the tender respect of Augustus for a free constitution, which he had destroyed, to be his fear. The death of Caesar was always before his eyes, says Gibbon, and this shaped his principles in politics. Augustus was sensible, says Gibbon, that mankind is ruled by names; and he was not deceived in his expectation that the Senate and the Romans would submit to slavery, so long as they were respectfully assured that they kept all their ancient freedom. So there are some pieces that we need to put together in order to understand. In the first place we must see the politics of now, both as Mr. Snowden saw it, thus bringing us the message we must live with, and as we see it in ourselves. We shall consider, next time, the politics of our condition. I shall suggest to you that it lies in this: if we are not doing anything wrong, we have a right to resist. The nature of our freedom is that we lose it because we do not exercise it. And the nature of our freedom is not necessarily the one we find only in the books of law. We shall consider two constitutional traditions in the United States next time. One made by European people running away to be free and one made by African people, forced into slavery, who had to run away, in the United States, in order to be free. Two constitutional traditions of resistance—differently structured and equally in our bones. Now we must consider the relation that we have to the rest of the human race in this, and ask ourselves whether we are seeking privilege or something that belongs to all of humankind. For which it will be necessary to understand the ideas of those who have risked their lives to inform us, not because their ideas are necessarily privileged above our own, but because they have sad experience from which to speak. We must think about the role of all those working people in the systems, both private and public, which constitute spying on humanity. We must ask what they are telling us in their resistance and what our side in their resistance ought to be. That workers were complaining in the Gulf last week was making a question for global football. We might want to be at least equally concerned with what we have learned from the workers inside the matrix all this while. We must ask what it means—both in the private and in the public world of listening and spying and analyzing and concluding—this thing that we're now calling "privacy," in relation to the thing that we used to call freedom. But of course, in the end, all of this would not be worth talking about here, much less your coming to listen to me talk here, unless we were going to talk about what we are actually going to do. If the problem is that we slept too long, then plainly Mr. Snowden did not come but to wake us up. We shall see that there are both legal and political forms of resistance around the world that we must all engage in. And I shall show next time as best I can the possibilities down which we may choose to take ourselves in that regard. But we must also change the way we communicate, so as to restore the balance between what they can and what they can't do. Here lies the secret of Mr. Snowden's enormous sacrifice and their enormous anger. Because the center of what Mr. Snowden has done is to tell us what armor still works. He has spent his life now for us, to tell us what we still have time to do if want to restore to the technology of our communications the morality of freedom. He has been quite precise. He has been quite careful. He has been most thorough. He understands his business. He has spied on injustice for us and he has told us what we needed to know. Despite the efforts continuing every instant all around us, in a world becoming a safe and dreary prison for their enemies, he has told us what we require in order to do the job and get it right. And if we have a responsibility at all, then part of our responsibility is to learn, now, before somebody concludes that learning should be prohibited. Which never happens in a free society. I wish we weren't here. I don't wish that I wasn't here more than I wish you weren't here. I wish us all out of this war. Twelve years—the longest war in history of this society, nowhere concluded, nowhere near finishing, nowhere capable of being defined as done. We went from listening to armies and embassies to listening to global trade and now we are fastening spying on entire societies, with a skill and energy that only a growing empire can still manage. We shall talk about the world where a nation of 1.3 billion people gains a Content Monitoring System in sixteen months, against the ordinary suppositions of every Indian person who thinks, "they can't do that." But, thanks to the new Bechtel, Booz Allen Hamilton—erstwhile employer of one Edward J. Snowden—yes they can. The procedures—mind you only the procedures—of totalitarianism are a leading American export these days. I wish we weren't here. I wish that everything we thought we did in the twentieth century we had accomplished. I wish we had defeated totalitarianism. I wish we had eliminated smallpox. I wish that we were growing the Net that we deserve to have, in which every human brain could learn and every human being could grow, nourished by the knowledge and the support of all the others. There may come a day. But if we have only one more river to cross before we get to freedom, it's a deep one, and it runs fast the other way. And those who want to bring us out are going to be called traitors—they are. And God forbid that they should lift their hands in anger, or they will be slaughtered. And those who do it will feel they have all the right on their side. It is wrong to be right too soon. It's wrong to be right too soon, but it is not too soon to be right now. Because if we're not right now, then they will remember our failure for fifteen centuries. And they will say of us, oppressed by the weight of our corruption, and our fear of terrorist violence, that we were ready to submit so long as we were assured that we possessed our ancient freedoms. And as for everybody else—if not "Civis romanus sum," then who are you? Which is no way for us to be talking. Not now, not ever. We have wandered so far into the dark that we have lost who we are. Like many a tragic figure in history, Mr. Snowden went further out into the dark in the hope that he could lead us back. We had better do our best to learn from him what we can, as we watch his light vanish into the darkness.
-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA512 On 10/31/13 4:28 AM, coderman wrote:
"Westward the Course of Empire - Part 1" A talk given by Eben Moglen at Columbia Law School on October 9th, 2013 http://snowdenandthefuture.info/PartI.html WebM: https://archive.org/download/20131009SnowdenAndTheFuturePartI_201310/Snowden...
mp4: https://vimeo.com/76656494 Thank you very much for sending this along. I noticed Maestro Moglen delivered part II last night: http://snowdenandthefuture.info/PartII.html gf - -- Gregory Foster || gfoster@entersection.org @gregoryfoster <> http://entersection.com/ -----BEGIN PGP SIGNATURE----- Version: GnuPG/MacGPG2 v2.0.19 (Darwin) Comment: GPGTools - http://gpgtools.org iQIcBAEBCgAGBQJScxCZAAoJEMaAACmjGtgjyZoP/3ICZnuugkiyybD0NWZGHomi HDt9Zqt68NLiWCKK6EYG34rW746FQwMrA2j+EGVLpn57aLPLmv0XwJOZ5SSeD3B0 LPZhV91C3NQt+RiB9L+gJeGWkdqTl+d4R6howZfNxJbzxWkqhRbW9sm+pwrWlOby UxhKJkNrRZDiTGUM4dRwquZs/x+YAWE9BqNcgXktbR747aoQg/b/WGhWkVVgxS6u CyqcKRsQHxnv57zwpGW0qn06IgdnM0Nod573FHs6TPhZL3dV4yvEfz3sjcnIhQIt U74do6k2rEH3qFwbdL2TVHZc0itCHJaGH2uKhCnbRWCB4qdfazRIIFd+TG3sHpxy ObUTKUMwhSbdFNxmK4qVYcqzV2V+J4SSRrIZ9UravA3aJkKpf9PMdVAi72FvY/HU yqhHnBNjUqnY67jDwCy3Ivj5+v4Hg54r9KSK0lguU/1dn4Q4+eS3ZFo0zvqsyyUh VFlMjQ6JH9IG3M9wVBQRBgGUZWHmZZdU60UQJIyX4hcU0pnbIua3zQ2jwtEcWEFB ewz7cqWux9pgd2cLQGivHVXkA4TDmX/bu39GuXEjs7VqFWmnkHK8e2rHqd1XIFGP 9ltMiB2Mlkf/NQEtOAVVp9WqCwm8nHZtb6zqdnz+cSLtiBAuamtQeWKMQIDLzW+j o6gPi8/ITaxNsbmE+sf3 =SWJm -----END PGP SIGNATURE-----
Oh, Freedom - Part II Good afternoon. Since we were last here the press of the world has been full of information concerning the practices of the US listeners, and statements from Presidents, Premieres, Chancellors, and Senators on the subject. Our purpose this time being to consider the political meaning of Mr. Snowden and the future he has brought us, we must begin by discarding for immediate purposes pretty much everything said by the Presidents, the Premieres, the Chancellors, and the Senators. It has been a remarkable display of misdirection and misleading, and outright lying. We'll come back to it, but it will not serve us at the outset. It is indeed really what doesn't matter—all this froth, that we've been reading since we were last together, from the respondents. We need to keep our eye on the thinking behind Mr. Snowden's activities—which he has done much more to explain since we were last together—and we need to understand the message he has sent us. And so, for that purpose, I come again before you. What matters most—and what it has been the goal of the Presidents, the Chancellors, the Premieres, and the Senators not to say—is how deeply the whole of the human race has been ensnared in this process of pervasive surveillance that destroys freedom. The fastening of the procedures of totalitarianism on the human race is the political subject about which Mr. Snowden has summoned us to an urgent inquiry. And it is that inquiry which it has been the goal of pretty much everybody responding on behalf of any Government or State not just to ignore but to obscure. We begin therefore where they are determined not to end, with the question whether any form of democratic self-government, anywhere, is consistent with the kind of massive, pervasive, surveillance into which the Unites States government has led not only us but the world. This should not actually be a complicated inquiry. For almost everyone who lived through the 20th century—at least its middle half—the idea that freedom was consistent with the procedures of totalitarianism was self-evidently false. Those who fought against it, those who sacrificed their lives to it and had to begin again as displaced persons and refugees around the world, and those who suffered under the harrow of it were all perfectly clear that a society that listens to every telephone call, spies on every meetings, keeps track of everybody's movements is incompatible with a scheme of ordered liberty, as Justice Benjamin Cardozo defined American constitutional freedom. But at the beginning of the 21st century, what seemed clear and absolutely unnecessary to inquire into in the 20th is now, apparently, a question. So we had better address it directly. Many millions of people in the United States have in their family tree, in their genetic material, in their understanding of the world, visceral awareness of a system that tracked their ancestors' movements, and for even the most trivial journey required they have a pass. A system that gave some people the right to scrutinize every communication of everybody else, that made almost every home subject to intrusion and disruption at the whim of illegitimate power. For those who have tasted the bitterness of slavery in their past, it should not be necessary to explain why powers—however velvet the glove in which they are contained may be, however invisible the system within with they are embedded—that keep track, that listen everywhere, whose intrusion knows no boundaries, are the powers of masters over slaves. We should therefore not need to inquire, carrying as we do our own history closest, whether a system of power which listens everywhere, which can go everywhere, which keeps track of everybody's thoughts, feelings, and speech, is inconsistent with freedom. We know, because we have lived on both sides of such a system. And we know its evil. But let us forget what we have learned by bitter experience, what we carry in our own breasts, let us forget it, let us put it aside, let us be law professors, shall we, and political scientists: For analytical purposes let us take this word "privacy," that we are growing accustomed to using quite freely, and see what it really is. Privacy—as we use the word in our conversations now all around the world, and particularly when we talk about the net— really means three things. The first is secrecy, which our ability to keep messages "private," so that their content is known only to those who we intend to receive them. The second is anonymity, which is our ability to keep our messages—even when their content is open—obscure as to who has published them and who is receiving them. It is very important that anonymity is an interest we can have in both our publishing and our reading. The third is autonomy, which is our ability to make our life decisions free any force which has violated our secrecy or our anonymity. These three are the principle components of the mixture that we call "privacy". With respect to each, further consideration shows that it is a precondition to the order that we call "democracy", "ordered liberty", "self-government", to the particular scheme that we call in the United States "constitutional freedom." Without secrecy, democratic self-government is impossible. Because people may not discuss public affairs with those they choose, excluding those with whom they do not wish to converse. If you have lived in a society where in every dorm room, every work place, every public transport vehicle, there was an agent, whose job it was to listen and inform, once you think about the consequences for political conversation in that neighborhood, you need go no further. If you are fortunate enough never to have had that experience, most of your comrades around the world can enlighten you. Anonymity is necessary for the conduct of democratic politics. The United States Supreme Court took until 1995 to recognize it, but it did, and to Justice Stevens we a owe clear statement of the importance of anonymous political conversation at the core of the First Amendment. The cases in which the Court has considered the anonymity right are precisely cases about political communication, central cases about the exercise of democracy. It is, as Justice Stevens noted in McIntyre, not terribly surprising that our greatest artifact of divine constitutional wisdom—a set of political pamphlets penned by three very slippery characters called Hamilton, Madison, and Jay that we refer to as The Federalist Papers—were of course published under a pseudonym. That autonomy is vitiated by the wholesale invasion of secrecy and privacy, that free decision making is impossible in a society where every move is monitored, those of you who have friends in North Korea may enquire into directly, if you please. But equally, any conversation with those who lived through 20th century totalitarianisms or any contact with the realities of American slavery will surely clear it up for you. In other words—though it shouldn't be necessary to demonstrate, though we ought to have taken the bitter experience of American history in the 19th century and the history of the West in the 20th for sufficient demonstration—for those who really do like ignoring the facts and working it out abstractly, with chalk, privacy is a requirement of democratic self-government. The effort to fasten the procedures of pervasive surveillance on human society is the antithesis of liberty. This is the conversation that all the "Don't listen to my mobile phone!" has been not about for the last two weeks. If it were up to power, the conversation would remain at that phony level forever. So we are, at the moment—thanks to Mr. Snowden, who has precipitated what even his adversaries now like to call a "necessary conversation"—we are now in a necessary conversation with parties on the other side who do not wish to explain exactly what they do. They have advanced, and will advance, no convincing argument that what they do is compatible with the morality of freedom, with US constitutional law, or with the human rights of every person in the world. Indeed, they will not offer any argument. They will certainly not offer a defense. They will instead attempt, as much as possible, to change the subject, and, wherever they cannot change the subject, to blame the messenger. But what you have seen around the world in the last two weeks is the evidence that this is extremely unlikely to work. And so we need to consider the political environment created by what has happened, before we can begin to address the more or less empty rhetoric that has been assigned to the Presidents, the Chancellors, and the Premieres. "Why are they all operating in this way," you may ask nonetheless, "as though everybody were on the same side?" Here the history is very clear and remarkably available. One does not need access to classified documents to see—including in records we will be making public as part of our effort in "Snowden and the Future" over the next two weeks—how the military and strategic thinkers in the United States adapted to the end of the Cold War by planning pervasive surveillance of the world's societies. In the early 1990's, in documents that are in no way secret, the US strategic and military planners made clear in a range of fora—from the think tanks, the Pentagon, in research reports and conference proceedings—that they foresaw, as indeed we now observe, a world in which the United States had no significant state adversary, and would be instead engaged in a series of "asymmetric conflicts." That was the phrase, meaning "guerrilla wars." In the course of that redefinition of the US threat assessments and strategic posture after the end of the cold war, the American military strategists and their intelligence community colleagues came to regard American rights in communications privacy as the equivalent of sanctuary for guerrillas. The documents from 1992, 1993 are very clear in describing precisely that relationship. It was understood that in future asymmetric conflicts the adversaries—that means people, you understand, bad people committed to bad activity but small groups of individuals affiliated with and possessing the power of no state—would use communications facilities that benefited from American civil liberties as sanctuary, and that it would be necessary for the US military, the listeners, to go after the "sanctuaries." Of course, this was the position of military strategists and their listener colleagues. It was not national policy. But it was an important albeit relatively quiet part of the policy formation discussion. There were, however, political adults in the room. And while the United States government considered various efforts at improving its ability to listen to encrypted communications in the mid-90's—the Clinton administration had the Clipper Chip initiative for example. There were also significant efforts to ensure that domestic law enforcement would not be disadvantaged by the movement to digital communications. These lead in 1995 to the CALEA statute mandating the availability of "wiretapping" technical facilities in digital telephone systems that didn't natively offer them—a compromise which split the young Electronic Frontier Foundation into two camps, one of which became CDT. Although there were these steps taken to facilitate not only the work of the domestic law enforcement agencies but also the listeners within the United States—this we now know, as we see the evolution of the FISA statute in the FISA court, secret judicature we couldn't see before—still and all there was a clear understanding. This idea of denying "sanctuary" by breaching American civil liberties in US-based communications was not part of the senior policy-making outlook—it was part of what one team constantly pushed for. This they did after the first World Trade Center bombing, after the Africa embassy bombings, after the Cole. The whole pervasive surveillance system, not just the Patriot Act but all the pieces that we now understand surrounded it in the secret world's understanding, were constantly advocated for at the end of the 20th century, and as constantly rebuffed. And then, as we saw last time, at the opening of the 21st century a US Administration which will go down in history infamous for its tendency to think last and shoot first bought—hook, line, and sinker—the entire "denying sanctuary," pervasive surveillance, "total information awareness" scheme. Within a very short time after January 2002, mostly in secret, they put it all together. The consequences around the world were remarkably uncontroversial. By and large, states approved or accepted. Some of this happened because the United Stated government was even then using quite extraordinary muscle around the world—after September of 2001 you were either with us or you were against us. But it also happened because so many other governments had come to base their national security systems crucially on cooperation with American listening. And after the declaration of the new Global War on Terror, that became only more true. By the time the present Administration had settled into office in the United States, as one senior official with relevant responsibility described it to me half-way through the first term, in our government to government relationships about the Net, "all of us—-the Chinese, the Europeans, and Us," that was 'all of us' at the table, "—we all agree about one thing, about exfiltration." (This is the listeners' word for spying: "exfiltration." They "exfiltrate" data off our networks into theirwarehouses.) "We all agree," this official said, "about exfiltration: everybody agrees that it can't be stopped and it shouldn't be limited. We disagree about what kinds of intervention," that is, breaking things in the Net, "should be allowed." The important point for present purposes in this one conversation (which could be drawn just as well from many other unclassified sources) was that senior US policy makers thought there was general consensus around the world that everybody could listen to everybody's societies; it could not be stopped it shouldn't be limited. The Chinese agreed. The US agreed. The Europeans agreed, which really meant of course that they were dependent on US listening and hadn't a lot of power to object. Nobody told the people of the world. What was common understanding among the policy-making elite—who governed among them still only about a third of the world's population—was that global civil society was a free fire zone for everybody's listeners, and there wasn't anything to be said about it—particularly not to all those people, who were supposed to not know. This is the condition upon which the whistles started to blow all over the field, as I said last time. Throughout the distressingly situational ethics of this, a few people—all of them in the English speaking world, all of the, people who came from societies with strong traditions of the rule of law, protection for whistle-blowers, some form of civilian political control over domestic security intelligence—courageous and indignant whistle-blowers began to speak up. Mr. Snowden saw what happened to precedent whistle-blowers, and behaved accordingly. What had opened by the end of the first decade of the 21st century was a gap between what the people of the world thought their rights were and what their governments had given away in return for intelligence useful only to thy have adopted a misleading metric; they think if a program produces anything it is justified. Because of course the very essence of democracy is that it is for the people to judge what is justified with respect to invasions of their entrenched and fortified rights. And I think that Mr. Snowden means—as certainly I and my comrades mean—that in the exercise of the democratic discretion to determine whether we wish to fasten these procedures of totalitarianism on other people in the world, that we should consider our values as extending beyond our borders. We mean—and I think Mr Snowden means with us—that we should make those decisions not in the narrow, selfish self-interest that is raison d'etat, but with some heightened moral sense of what it is appropriate for a beacon of liberty to humanity to do. We will speak, of course, about American constitutional law and about the importance of American legal phenomena—rules, protections, rights, duties—with respect to all of this. But we should be clear that, when we talk about the American constitutional tradition with respect to freedom and slavery, we're talking about more than what is written in the law books. We face now a global system in which the States have, almost without exception, agreed complicitiously to deliver over their people to a form of pervasive spying which we know is incompatible with our own liberty and with the liberty that we have frequently postured in the world as bringing to the human race as a whole. We know this. As individual citizens we are now aware. Mr. Snowden has made it impossible for us to ignore this fact unless we bury our heads so deep in the sand that we are likely to suffocate. But we face two claims—you meet them everywhere you turn—which summarize the politics against which we are working. One argument says, "It's hopeless, privacy is gone, why struggle?" The other says, "I'm not doing anything wrong, why should I care?" And these—neither one of them a brilliant argument from a political point of view—these are actually the most significant forms of opposition that we face in doing what we know we ought to do. In the first place, the premise of my being here before you is that it is far from hopeless. Mr. Snowden has described to us, as I told you last time, what armor still works. Mr. Snowden's purpose was to explain to us how to distinguish between those forms of network communication that are hopelessly corrupted and no longer usable, those that are endangered by a continuing assault on the part of an agency gone rogue, and those which even with their vast power, all their wealth, and all their misplaced ambition, conscientious, and effort, they still cannot break. Hopelessness is merely what you are supposed to get, not what you have to have. And so far as the other argument is concerned, we owe it to ourselves to be quite clear in response. My own personal position I recommend to my comrades around the world: If we are not doing anything wrong. then we have a right to resist. If we are not doing anything wrong, then we have a right to do everything we can to maintain the traditional balance between us and power that is listening. We have a right to be obscure. We have a right to mumble. We have a right to speak languages they do not get. We have a right to meet when and where and how we please so as to evade the paddy rollers. We have an American constitutional tradition against general warrants. It was formed in the 18th century for good reason. It puts the limit of the State's ability to search and seize at what you can convince a neutral magistrate, in a particular situation—about one place, one time, one thing—is a reasonable use of governmental power. That principle was dear to the First Congress which put it in the Bill of Rights, because it was dear to British North Americans, because in the course of the 18th centuAnd so the constitutional tradition we should be defending, now, as Americans, is a tradition which extends far beyond whatever boundary the Fourth Amendment has in space, place, or time. We should be defending not merely a right to be free from the oppressive attentions of the national government, not merely fighting for something embodied in the Due Process Clause of the 14th Amendment after 1961, because of a trunk of smut left behind by a departing lodger in Mrs. Mapp's boarding house in Ohio. We should be rather be fighting against the procedures of totalitarianism because slavery is wrong; because fastening it on the human race is wrong; because providing the energy, the money, the technology, the system for subduing everybody's privacy around the world—for destroying sanctuary in American freedom of speech—is wrong. And if we're going to exercise our democratic rights in the United States as Mr. Snowden wishes us to do—and has given us the most valuable thing that democratic self-governing people can have, namely information about what is going on—if we are to do all that, then we should have clear in our mind the political ideas upon which we ought to be acting. They are not parochial, or national, or found in the U.S. Reports alone. A nation conceived in liberty, and dedicated to the proposition that all men are created equal, enslaved millions of people. It washed away that sin in a terrible war We should learn from that, as we are called upon now to do. The politics that we have as Americans are slightly more complicated, but they are fundamentally the same as the lines upon which our colleagues and comrades around the world must also move. Everywhere citizens must demand two things of their governments: In the first place, you have a responsibility, a duty, to protect our rights by guarding us against the spying of outsiders. Every government has that responsibility. Every government has the responsibility to protect the rights of its citizens to be free from the intrusive spying of outsiders. No government can pretend to sovereignty and responsibility with respect to its citizens unless it makes every effort within its power and its means to ensure that outcome. In the second place, every government around the world must subject its domestic listening to the rule of law. Now this is the tragedy, where the overwhelming arrogance of the listeners has left the American government. The government of the United States could have held up its head until the day before yesterday and said that its listeners, unlike all the other listeners in the world, were subject to the rule of law. It would have been an accurate boast. To be sure the rule of law even in the last generation was somewhat corrupted by secret judicature, and a court appointed by a single decision maker, and so on and so on. But the truth is that American listening was subject to the rule of law as no one else's was in the world or is now. For nothing, history will record, they threw that away. For nothing they threw that away. But it is true everywhere—whether we are here, or we are in China or we are in Germany, or we are in Spain, or wherever we are—those two basic principles of our politics are uniformly applicable: our government must defend us against pervasive spying by outsiders, and our government must subject listening to the rule of law at home. To the citizens of the United States a greater responsibility is given because we must act to subject our government to control in the listening it is doing to hundreds of millions and ultimately billions of people around the world. Ours is the government that is projecting immensities of power into the destruction in the world's societies and ours is the government which must be put under democratic control with respect to that listening. It is our principles in favorem libertatis which must be the dominant principles in that story. Freedom has been hunted round the glob war, a Net which no longer uses surveillance to destroy the privacy that founds democracy. This is a matter of international public law. In the end this is about something like prohibiting chemical weapons, or land mines. A matter of disarmament treaties. A matter of peace enforcement. Pervasive surveillance of other peoples' societies is wrong and we must not do it. Our politics, everywhere around the world, are going to have to be based in the restoration of the morality of freedom, which it is the job of democracy to do. The difficulty is that we have not only our good and patriotic fellow citizens to deal with, for whom an election is a sufficient remedy, but we have also an immense structure of private surveillance that has come into existence. a structure which has every right to exist in a free market but which is now creating ecological disaster from which governments alone have benefited. From which people have been rendered far less well off than they think they are, and than they should have been. You don't need today's Washington Post on the subject of the massive interception of information flowing in and out of Google and Yahoo—and soon it will be Facebook and Microsoft's cloud—as we begin to understand what government is doing with "the cloud." You don't need any of that to understand that at the end of the day, we have to assess not only what the States have done, but also what unregulated enterprise has done, to the ecology of privacy We have to consider not only, therefore, what our politics are with respect to the States but also with respect to the enterprises. This is the subject of our talk next time. But for now we are left attending a puppet show in which the people who are the legitimate objects of international surveillance—namely politicians, heads of state, military officers, and diplomats—are yelling and screaming about how they should not be listened to. As though they were us and had a right to be left alone. And that, of course, is what they want. They want to confuse us. They want us to think that they are us—that they're not the people who allowed this to happen, who cheered it on, who went into to business with it. The literature of our time has not been deceptive about this. If one reads John le Carre's views about the security industry in Germany under the Global War on Terror (he, as you recall, had his actual experiences as an intelligence officer on behalf of the British government in Germany), if you look at what A Most Wanted Man says about the nature of the cooperation between the Germans and the Americans, and its effect on freedom, you will discover that after all everybody really did know—except you. The purpose of secrecy was to keep you in the dark. The purpose of secrecy was not to prevent the States from knowing what they were doing: their left hands and their right hands knew perfectly well what they were up to. We're going to have to cope with the problems their deceptions created. Because among the things that our listeners have destroyed is the Internet freedom policy of the United States government. They had a good game that they were playing both sides of. But now we have comrades and colleagues around the world—working for the freedom of the Net in dangerous societies—who have depended upon material support and assistance from the United States government, and who now have every reason to be worried and to be frightened. What if the underground railroad had been constantly under efforts of penetration by the United States government on behalf of slavery? What if every book for the last five hundred years had been reporting its readers at headquarters? People talk about this as though it were a matter of the publicity of what we publish rather than the destruction of the anonymity of what we read. We will have to look next time very closely at what commercial surveillance really does and how it really does it in order to understand what our politics have to be. Because there, as here, deception, misdirection—waving the handkerchief over here so you do not see what the other hand is doing—is the whole secret to how it works. The bad news for the people of the world is you were lied to thoroughly by everybody for nearly twenty years. The good news is that Mr. Snowden has told you the truth. But if we really believe that the truth will set us free, we had better do it now.
participants (2)
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coderman
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Gregory Foster