Part II:

Oh, Freedom

Video: (WebM) (mp4) also available here

A talk given by Eben Moglen at Columbia Law School on October 30th, 2013

Previously in this series: Part I: "Westward the Course of Empire"

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 their warehouses.) "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 their governments. This gap was so wide, so fundamental to the meaning of democracy, that those who operated the system began to disbelieve in its legitimacy. As they should have done.

Mr. Snowden's political theory has been quite exact and quite consistent.

From his first statements in Hong Kong, through his interview with James Risen of the New York Times, to his statement over the weekend sent to our colleagues and comrades in Washington DC who were seeking to have them stop watching us (whoever us might be), Mr. Snowden has been very consistent: he says the existenceof these programs, undisclosed to the American people is fundamental violation of American democratic values.

Surely there can be no argument with that.

Mr. Snowdens position is that efforts so comprehensive, so overwhelmingly powerful, and so conducive to abuse, should not be undertaken save with democratic consent. Mr. Snowden has expressed recurrently his belief that the American people are entitled to give or withhold that informed consent. But Mr. Snowden has also identified the fastening of those programs on the global population as a problematic act, which deserves a form of moral and ethical analysis that goes behind mere raison d'etat.