Part III:

The Union, May it Be Preserved

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A talk given by Eben Moglen at Columbia Law School on November 13th, 2013.

Previously in this series: Part I: "Westward the Course of Empire" and Part II: "Oh, Freedom".

Good afternoon.

Since we were last together, Mr. Albert Gore Jr.—once Vice President of the United States, and the man who got the most votes in the presidential election of 2000—said, in a public speech in Montreal, that Mr. Snowden had disclosed evidence of crimes against the United States Constitution.

Senator John McCain—who has never gotten the most votes in a presidential election—immediately came out, and said that General Alexander—whose departure has been scheduled, as we discussed last time—should be fired for allowing Mr. Snowden, who was a mere contractor, access to classified information. This sudden and unprovoked attack on the business model of Booz Allen Hamilton, and many of his campaign contributors was, of course, a beautiful example of the misdirection, misleading, and sheer lying we were talking about last time.

Mr. Gore—who was famously a journalist rather than a lawyer before he went into politics, which may account for his occasional love of truthfulness—was of course exercising layman’s privilege in talking about crimes against the United States Constitution. Much in the way that liberty has been taken with the law when people attack Mr. Snowden as a “traitor.” But Mr. Gore is using layman’s privilege. Many of the people who have abused the language with respect to Mr. Snowden are lawyers, and should have known better.

But for all that Mr. Gore was substantially closer to the truth than Senator McCain, it is Senator McCain’s comment which leads us closer to the heart of where we need to focus our attention now.

Our remaining time together will be short and in it we must attend to the solutions to some to the problems we have been living with. In order to think about those solutions we must be sure that we understand the full breadth of the problems. Senator McCain, in referring to the contractors, brought us face to face with the crucial role of the private surveillance market in the world, the data-miners and the listeners of commerce. Both those who are officially part of the intelligence establishment and those who aren’t. Senator McCain of course knows the vast surveillance-industrial state which has grown up since 2001—which was so beautifully documented by the Washington Post in its “Top Secret America” series in 2010—is impossible to imagine, the surveillance behemoth we now have in government cannot be conceived, without the contractors. That’s the center of that story. But it is in itself another layer—one might say a superstructure raised atop another structure altogether, one might call a base—which is the great data-mining industry that has grown up in the United States, to surveil the world for profit, in the last fifteen years. There we must pay our central attention before we discuss how to fix things, because there is the center of the problem.

The government abuse of the systems of surveillance and listening which have threatened to fasten the procedures of totalitarianism on everyone in the world without a US passport, this form of pervasive spying on societies which has come into existence, results from a larger environmental and ecological crisis brought on by industrial overreaching.

It is not the first, the last, or the most serious of the various forms of environmental crisis brought on in the last two centuries by industrial overreaching. Industrial overreaching has begun to modify the climate of the whole earth in unexpected and damaging ways. Against that enormity this is merely an ecological disaster threatening the survival of democracy.

So we need to understand the ecological harm done underneath, before we can begin to restrict the listening of government to its appropriate sphere, and abate those violations of the constitution to which Mr. Gore referred.

Now I spoke last time of the way in which we can decompose “privacy,” the concepts that we float around under that word, into three more specific parts: First, secrecy: that is, our ability to have our messages understood only by those to whom we intend to send them. Second, anonymity: that is, our ability to send and receive messages, which may be public in their content, without revealing who said and who listened or read what was said. Third, autonomy: that is, the avoidance of coercion, interference, and intervention by parties who have violated either our secrecy or our anonymity and who are using what they have gained by those violations to control us.

I would ask you also—in thinking analytically about this substance “privacy” whose continuation I am asserting is essential to democracy’s survival—I would urge you also to consider that privacy is an ecological rather than a transactional substance. This is a crucial distinction from what you are taught to believe by the people whose job it is to earn off you.

Those who wish to earn off you want to define privacy as a thing you transact about with them, just the two of you. They offer you free email service, in response to which you let them read all the mail, and that’s that. It’s just a transaction between two parties. They offer you free web hosting for your social communications, in return for watching everybody look at everything. They assert that’s a transaction in which only the parties themselves are engaged.

This is a convenient fraudulence. Another misdirection, misleading, and plain lying proposition. Because—as I suggested in the analytic definition of the components of privacy—privacy is always a relation among people. It is not transactional, an agreement between a listener or a spy or a peephole keeper and the person being spied on.

If you accept this supposedly bilateral offer, to provide email service for you for free as long as it can all be read, then everybody who corresponds with you has been subjected to the bargain, which was supposedly bilateral in nature.

If your family contains somebody who receives mail at Gmail, then Google gets a copy of all correspondence in your family. If another member of your family receives mail at Yahoo, then Yahoo receives a copy of all the correspondence in your family as well.

The idea that this is limited to the automated mining of the mail, to provide advertisements which you may want to click on while you read your family’s correspondence, may or may not seem already louche beyond acceptability to you, but please to keep in mind what Mr. Snowden has pointed out to you: Will they, nil they, they are sharing all that mail with power. And so they are helping all your family’s correspondence to be shared with power, once, twice, or a third time.

The same will be true if you decide to live your social in a place where the creep who runs it monitors every social interaction, and not only keeps a copy of everything said, but also watches everybody watch everybody else. The result will not only be, of course, that you yourself will be subjected to the constant creepy inspection, but also that everybody you choose to socialize with there will be too. If you attract others to the place, you’re attracting them to the creepy supervisory inspection, forcing them to undergo it with you, if they want to be your “friend.”

The reason that we have to think about privacy the way we think about the other ecological crises created by industrial overreaching is that it is one. It’s that we can’t avoid thinking about it that way, no matter how much other people may try to categorize it wrongly for us.

This is a particular problem for the lawyers. Because the lawyers are attracted by the shininess of transactional behavior. It gives them benefits and causes them—if they are professors—to lunch, and—if they are practitioners—to dine in elegance. So they are always delighted to discover a transaction that can be facilitated for a reduction of friction monetized as legal fees. Therefore lawyers are among those around the world most likely to be inclined to imagine that this nonsense about the transactionality of privacy is true. The important element in this is that what is transactional can be consented to, and so we get a lot of law about consent. Which, if correctly understood, is totally irrelevant and indeed fundamentally inappropriate.

We do not, with respect to clean air and clean water, derive the dirtiness of the air and water from the degree of consent. You can’t consent to expose your children to unclean or unsafe drinking water in the United States, no matter how much anybody pays you. Because the drinking water must be provided at a socially established standard of cleanliness, which everybody has to meet.

Environmental law is not law about consent. It’s law about the adoption of rules of liability reflecting socially determined outcomes: levels of safety, security, and welfare.

When you take a subject which has previously been subject to environmental regulation and you reduce it to transactionality—even for the purpose of trying to use market mechanisms to reduce the amount of pollution going on—you run into people who are deeply concerned about the loss of the idea of a socially established limit. You must show that those caps are not going readily to be lifted in the exhilarating process, the game, of trading.

But with respect to privacy we have been allowed to fool ourselves—or rather, we have allowed our lawyers to fool themselves and them to fool everybody else—into the conclusion that what is actually a subject of environmental regulation is a mere matter of bilateral bargaining. A moment’s consideration of the facts will show that this is completely not true.

Of course we acquired this theory not by accident. We acquired this theory because tens of billions of dollars in wealth h