Download the podcast audio version of this blog entry here. Listen to the podcast on Youtube here. Due to the length of this blog entry, it has been divided in to parts; click on the following links to jump to the various parts directly:
Part 5: Epilogue
Acknowledgement is due to Stefan Molyneux, whose "Truth About Edward Snowden" video formed the initial basis of much of part 3.
Acknowledgement is due to Stefan Molyneux, whose "Truth About Edward Snowden" video formed the initial basis of much of part 3.
This world is a complicated place. There are not many issues worth discussing which proceed so necessarily from prior, known conditions, as 4 proceeds from adding 2 and 2 together. But there is one problem which, though a major topic of debate, really should not be controversial at all.
That problem is the problem of why we have no privacy.
I do not expect to change many minds by way of this essay. This is not to say anything about the strength or weakness of the arguments, but only of the difficulty I forsee in the conclusion gaining acceptance. There is too much at stake. Regardless of whether the reader agrees with the basic thesis put forward, I suspect that anyone with even a passing interest in the topic of online privacy in the 21st century will gain much from reading the 3rd section, which provides a brief overview of the history of the erosion of personal privacy in the Western world.
If one cares deeply about the encroachment of the state, of plutocratic interests, or of some other malignant force in to the sphere of one's private exchange of information, then it is a safe bet that one's heroes have names like Assange and Snowden. Yet, as influential as these figures have been, as much as they have done to bring this problem out of the shadows and throw some light on the forces at work, they have in fact undermined the cause of privacy in at least one important way; and that way is in distorting the true source of the loss of privacy in the modern, digital era. They are actors, not thinkers; they make history, but do not understand it; they get things done, but have proven unable to root out and analyze the causes of the problem. Though these men are certainly intelligent and thoughtful individuals to whom the greatest respect is due, their aim in terms of finding a set of shoulders on which to rest blame, is massively wide of the mark. I suspect they are too entrenched in their causes to see the facts of the matter for what they are, because if they did, then they very well might not find the cause quite so worthy of their efforts and so deserving of their martyr-like personal sacrifices. While Assange and Snowden generally tend to place blame squarely on the government, corporate interests and the corruption and collusion between the two, there is a much more banal and less sinister party who is in actual fact, the guilty one.
That party is you and I. We are to blame.
This is the tragedy of our lack of privacy. As the song goes, "you do it to yourself, and that's why it really hurts". And hurt, it does. Now you understand why I do not expect to change many minds. The first step in the process of healing a deep wound is to admit that there is indeed a wound, a reality which these heroes of our time have forced us to confront. There is no going back; no person in their right mind can look at the gash in our side, watch it hemorrhaging the lifeblood of our confidence in private exchange, and believe that all is well. The next step is to figure out the source of our calamity and eliminate it, to ensure our immediate safety, and prevent the recurrence of so hideous a laceration even before we dress the wound. The fact is that such a recurrence is immanent, because the knife rests in our own hand, and the injury results, not from a form of self-loathing, but rather from ignorance.
The source of the problem and that which sustains it, is not greed. It is not the lust for power. It is not a contempt for the concept of rights. It is ignorance, pure and simple. We are all to blame, and it is our collective ignorance which is the root cause of the loss of our privacy. An ignorance of what? An ignorance of what privacy actually is in the first place. How can you protect something you do not recognize? From the outset, such a task is utterly impossible to undertake, and so it is little wonder that the situation is not improving.
So the obvious question which must be addressed first and foremost is, "what is privacy?"
No novel interpretation is required, we need not redefine the conventional notion of privacy in order to see just where we went wrong. The confusion which seems so universal comes from not following premises through to their conclusions. From Wikipedia:
Privacy (from Latin: privatus "separated from the rest, deprived of something, esp. office, participation in the government", from privo "to deprive") is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively.
Dictionary.com defines privacy as "the state of being private", so from it we take the definition of "private":
* belonging to some particular person
* pertaining to or affecting a particular person or a small group of persons' satisfaction
* confined to or intended only for the persons immediately concerned
* personal and not publicly expressed
* pertaining to or affecting a particular person or a small group of persons' satisfaction
* confined to or intended only for the persons immediately concerned
* personal and not publicly expressed
What unites and underlies all these separate but related notions of "private", is exclusivity. There is an exclusive right involved, which necessarily does not include all parties, but is restricted only to certain ones. That right is the right to use, protect and distinguish individually or corporately owned property from non-property or that which is common to all. In a communal society which has dissolved all notions of private property, there can a priori be no expectation of privacy.
So far we have not crossed in to difficult territory, and are treading safely outside the bounds of controversy; all of this is common-sense. Privacy by definition includes a notion of exclusive property rights. This is a necessary, but not a sufficient condition to arrive at a full understanding of what privacy is. Apart from a violation of property rights, a violation of privacy also involves some form of fraud or deception - the confidence of the violated party must have been breached in some form.
Perhaps some examples will help to demonstrate the explanatory power of this understanding of privacy:
1) The filming of a person using a public restroom: This is a privacy violation. Firstly, there has been a violation of exclusive property rights; namely the right of a person to restrict viewing access to parts of their body that they wish to remain unobserved. Secondly, there is a deception being perpetrated; an implicit contract has been violated, a contract whereby the person using the restroom reasonably expects that they will be able to do so without anyone watching. The first and most fundamental form of property ownership is self-ownership, and the filming of a disrobed person without their consent is a violation of privacy. A property violation has occurred, and a breach of confidence has occurred, and both these events taken together result in an injury to a person's privacy.
2) The use of secretively collected DNA: This is not a privacy violation. While it could well be argued that a police investigator collecting DNA from a discarded coffee cup is a deceptive act, there is in this act no violation of property rights. One does not (at least within any current legal framework) have an exclusive right to restrict the use of one's own DNA, only a right to refuse to submit a sample for DNA analysis. Once the sample has been yielded up by the person in question, it is no longer a part of their person, and thus not subject to property protections resulting from self-ownership. Whether or not DNA should be considered property that has legal protections (such as in the fairly reasonable expectation that one might be able to restrict oneself being cloned should the technology become available) is beside the point, the point is that what is considered "private" is only able to be considered as such through assigning it the status of "property". The secretive collection of DNA has been legally challenged as a privacy violation in some countries such as Australia, but it is significant that these challenges have so far amounted to nothing, not because they cannot be enforced, but because to consider it a privacy violation would be to reduce the concept of privacy to a meaningless one.
So in short: a privacy violation includes at least a violation of property rights, coupled with an element of deceit and the betrayal of a person's confidence. It is clear both from what privacy is by definition and also from a cursory glance at the history of privacy violations, that whenever you interact using a medium which is not privately owned, eavesdropping and spying will occur just as surely as day follows night.
Now, let us extend this idea to the sphere of online interactions. What is online privacy? Nothing more than the application of the conventional concept of privacy to the exchange of information exclusively. But there is a difference; we have crossed a line when we move in to the online world, though in this new world all our established ideas about privacy still apply no less than before. In speaking about online privacy, we have left the domain of material property, and must apply the idea of privacy as the maintenance of property rights and confidence, to the non-material realm. We are no longer considering the protection of material, physical property, but instead non-material, intellectual property (IP).
And now the diagnosis comes home. Why do we live in a world where we can expect no online privacy? Because it is clear that the vast majority of people believe that intellectual property is not worth protecting.
Before proceeding in to the case of why intellectual property is indispensable to online privacy, it will be helpful to gain some historical perspective and explore just how we got to where we are today. We did not lose our privacy overnight. If we can re-trace our steps down the road which led us to the modern world of hyper-transparency and can clearly see the wrong turns we took along the way, then this will illuminate those dark corners wherein lurk the enemies of privacy.
Issues of privacy reach back as far as the student of history cares to look, and the roots of our modern dilemma can be traced directly to pre-Revolutionary America, when "writs of assistance" played a significant role in stoking the fire that eventually exploded in to the American Revolution. Writs of assistance were the colonial era's equivalent of a court order which granted a search warrant, except this search warrant did not expire, required no evidence, and could be transferred at will between parties. It was a Sword of Damocles that the British government could leave dangling over its subjects' heads and bring down upon them when they disobeyed, allowing arbitrary searches with no protection for damages resulting therefrom.
After the American Revolution and the adoption of the US Constitution in 1787, ten amendments were presented simultaneously and ratified, later becoming known as the Bill of Rights. The fourth of these amendments was specifically intended to address privacy issues resulting from unreasonable searches and seizures, and it effectively establishes a right which is still the major check on government intrusion in to privacy today:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It is noteworthy that even at this early stage, privacy is necessarily limited in scope to the violation of private property ("...persons, houses, papers, and effects...") and though future court cases such as Katz v. United States would expand the obvious interpretation of protecting material property to include immaterial intrusion with technology, at its heart the Fourth Amendment in ancient or modern interpretations is in keeping with the central definition of privacy in this essay; that privacy extends only to those things which are property, and protects against a violation of confidence.
The 19th century was a period of scientific discovery and technological development the likes of which the world has never seen before or since, and during which the pace of change for even the average person increased unimaginably. From the introduction of the telegraph in 1838 to the invention of the telephone in 1876, communications technology reached heights never dreamed of before, and it would be entirely outside of the scope of this essay to enumerate all these changes in detail. But not everything was coming up roses at this time of great change; legislation to protect privacy continued to be drafted in to law in the late 19th century, however this legislation was largely ineffective and misguided, failing to protect property but rather attempting to establish a vague "right to privacy" which was neither specific nor enforceable. Thinking at the time is typified by an article written by lawyers Louis Brandeis and Samuel Warren entitled “The Right to Privacy” for the Harvard Law Review, which lamented the new technologies of instantaneous photography and the mass printing of newspapers, rather than addressing the root issue of protection of property. Shortly after the turn of the 20th century, in 1907 the first dictograph was invented, which acts as a bugging device that can be surreptitiously planted just about anywhere, and transmits conversations by use of a diaphragm to remote listeners who can eavesdrop on the conversation. The dictograph was of course not the first instance of spying technology but a rather conspicuous development, as before this time widespread bugging and spying was restricted mainly to large scale communications networks such as that of the telegraph, but never before could something like this be so easily placed in the home.
Following World War I, in 1919 a predecessor of the NSA was established, known as the MI-8 (AKA the "Cipher Bureau" or "Black Chamber"), with the express purpose of breaking communications and monitoring international telegraphs for potential threats to US national security. Shortly after its inception, the MI-8 approached the largest telegraph company in the US - Western Union - demanding access to the information travelling through its telegraph line system. Naturally, fearing repercussions such as loss of business licenses or government favouritism to competitors, Western Union obliged the MI-8 and granted the government secret access to its customers' private communications. This willingness to acquiesce to government coercion anticipates the large telecommunications firms of today, who have even less bargaining power than did Western Union due to the telecom firms lacking complete ownership of the internet infrastructure they are largely responsible for building during their history as phone and telegraph companies. The MI-8 was de-funded in 1929, but a year before this in the Olmstead v. United States court case, seizure of electronic conversations was deemed constitutional, only to be later overturned in the aforementioned Katz v. United States case four decades later.
Following World War II, Project SHAMROCK was initiated, with the goal of compiling all telegraphic data going in to or out of the US by way of Western Union and its subsidiaries. This information was accessed and scrutinized by the "Armed Forces Security Agency", which formally became the NSA in 1952, though its existence was denied and the public would remain unaware of it for nearly half a century. Project SHAMROCK continued until 1975 and in the intervening time was joined by its sister project MINARET with similar aims, both operating at all times entirely without warrants or court oversight. By this time the usurping of information and the de facto relegation of it to "non-property" status was all but complete; all that was needed was legislation to legitimize actual physical surveillance.
In 1971 it was internally revealed that US Presidents had illegally spied on their political opponents using government resources such as COINTELPRO and Project MINARET, and this revelation led directly to the passing of the "Foreign Intelligence Surveillance Act" (FISA) by US congress in 1978 with the purpose of rendering such activity legal. FISA makes provision for the government to legally surveil (both physically and electronically) foreign nationals and American citizens who are suspected of espionage or terrorism, by use of a secret court which provides warrants. FISA is the core legal framework which allows the NSA and a host of other projects and government agencies to conduct their operations within the bounds of US law. Ostensibly a limitation on previously unchecked powers of the state to surveil its population by requiring warrants, FISA has been criticized for rubber-stamping warrant requests and for all intents and purposes, allowing anyone to be surveilled if they are suspected of a crime based on evidence which may be classified. The court which oversees FISA is called the "Foreign Intelligence Surveillance Court" (FISC), however according to a former NSA analyst, it is little more than a kangaroo court which permits the granting of essentially any request. Out of approx. 34,000 warrant requests, FISC has denied only 11. Decades after the introduction of FISA in to US law, in 2007, the Protect America Act was enacted as an amendment to FISA which entirely removes the warrant requirement for surveillance of foreign intelligence targets, thereby making it yet easier for the US government to surveil people it considers "of interest" on the basis of evidence which "may be classified".
Also in 1971, a program code-named ECHELON was established whereby the NSA and its junior partners in the British Commonwealth (UK, Canada, Australia, New Zealand) operate a global information collection and analysis network, which works by controlling the dissemination of satellite trunk communications. This data collection network was originally intended to monitor the military and diplomatic communications of the Soviet Union and its satellite states in the Eastern Bloc, but since that time it has continued and expanded to where these countries can now essentially monitor any telephone calls, fax, e-mail and other data traffic globally by the interception of communication bearers such as satellite transmission, public switched telephone networks and microwave links. The point of this program is to enable governments of country A (say, the US) to ask the government of country B (say, Canada) to intercept domestic communications of country A's own citizens (who are foreign to country B and thus within the realm of suspicion). Since all this information is shared, it allows country A to essentially spy on its own citizens by asking country B to do so, while each country can maintain that they do not in fact spy on their own citizens. ECHELON has also been heavily employed in commercial spying by enabling the theft of trade secrets, patent information and other intellectual property which has allowed companies in the countries who use ECHELON to gain market advantage off the backs of their competition by in essence having the competition perform their R&D for them. Examples of companies who have had their intellectual property stolen include German wind energy developer Enertech and Dutch speech technology firm Lernout & Hauspie. ECHELON has also been used to gain trade advantage in other ways, including spying on negotiators in trade deals. This program was carried out unofficially for decades, only coming to light publicly in the late 1980s.
The landmark case of Katz v. United States unambiguously established a precedent for "reasonable expectation of privacy" as a condition under which the privacy of the individual can be protected. However in 1979 a blow was dealt to this concept, in the form of the Third Party Doctrine. The Third Party Doctrine is a legal principle established in a ruling on the Smith v. Maryland case, whereby if an individual voluntarily provides information to a third party, the Fourth Amendment does not prevent the government from accessing that information without a warrant. In effect, if you reveal information to a 3rd party, you can claim no legitimate expectation of privacy over that information. The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by them to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
The Fourth Amendment as noted earlier protects only property, but you have no legal claim to your transmitted information as property, hence the way is paved for the Third Party Doctrine not to conflict with the Fourth Amendment. This precedent provides the government with a legal loophole which allows them to essentially gain access without a warrant to any information you transmit over any communications network, including the internet. What is at stake is the legal definition of a "search", which is what the Fourth Amendment protects against. The Smith v. Maryland ruling says that the use of a "pen register", which is analogous in the context of its time to an ISP's logs of internet traffic, was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Thus one year after FISA was enacted in to law, the Third Party Doctrine, based upon the status of information as something other than property, provides the legal basis for the government being able to gain unlimited access to the information you transmit over a third party's network.
Between the late 1970s and early 1990s, two important developments increased exponentially the degree to which ordinary citizens could be monitored:
First, the US congress passed a number of refinements to existing wiretapping laws, originally in response to the Watergate scandal, and later on in order to require telecom companies and technology to be "wiretap-ready", thus providing back-door access for the government to ever-increasing traffic on communications networks, which allowed eavesdropping and bugging of devices to be carried out with minimal effort on the part of the authorities. This trend culminated in the Communications Assistance for Law Enforcement Act (CALEA), passed in 1994, the purpose of which was to force telecom carriers to make wiretapping more streamlined and empower law enforcement to tap any conversations carried out over its networks, and furthermore to force these carriers to conceal from the customer the fact that wiretapping is occurring. The act stipulates that it must be impossible for the customer to detect that their conversation is being monitored, and that the carrier must thwart, at their own expense, any attempts of the customer to discover whether their conversation is being listened in on. As with all such government programs, it has been greatly expanded as time goes on, and now encompasses all VoIP and broadband internet traffic.
Second and most importantly was the emergence of a phenomenon which we are all intimately familiar with. Originally developed as a decentralized system of computer networks which could withstand the catastrophic potential of a nuclear conflict, in 1989 the internet saw the addition of the world-wide-web, and within half a decade the way the world exchanged information had changed irrevocably. Corresponding with this change in the means of information exchange was the explosion in the sheer amount of data transferred. Within a decade of the widespread penetration of the internet in to homes and mass consciousness, to the great majority of people in the Western world, transfer of information on a scale which was unimaginable to a previous generation was simply a fact of life, and a scarce few could even recall how life managed to proceed in the time before the internet.
The information age had arrived, with laws protecting information lagging behind in the remote distance. It is no surprise then, that given how readily people had surrendered the right to their privacy and their property to this point, we would all soon be under a microscope which could scrutinize nearly any person thoroughly. It would not be long before the great mass of people learned just how bad the problem had become, though most would mistakenly believe that the problem reared its head suddenly. At this point in time, roughly contemporaneously with the rise of the internet, we saw the proliferation of what is now known as "identity theft", a crime whose entire basis is the unauthorized duplication and misuse of information.
Even our heroes, those maverick giants of silicon valley, who boldly blazed new trails and threw the old world aside, the Bill Gates' and Steve Jobs' who grace Time Magazine, Wired and other such publications - even these heroes are fully complicit in the downfall of civil liberties and the loss of the basic respect for ideas as extensions of their creator. Microsoft, according to recent leaks which have now come to light, allows the NSA to override encryption protocols on Outlook and Skype video and cloud services, and regularly passes this information directly to the FBI and the CIA. In fact in 1999, the Strategic Affairs Delegation (the intelligence arm of the French Defense Ministry) made a report which asserted that the NSA helped to install secret programs in Microsoft software. According to the report "it would seem that the creation of Microsoft was largely supported, not least financially, by the NSA, and that IBM was made to accept the MS-DOS operating system by the same administration". The report went on to state a "strong suspicion of a lack of security fed by insistent rumours about the existence of spy programs on [sic] Microsoft and by the presence of NSA personnel in Bill Gates' development teams", and further to suggest the Pentagon as Microsoft's biggest client. It is well-known that for years there has been a Microsoft liaison at the NSA.
Let me interrupt our history for just a moment to ask a rhetorical question: how is this sitting with you so far? Is this just the price we pay for the convenience of technology? Are you not made viscerally, violently ill at the thought that you pay a large chunk of your hard-earned income toward such shameless corruption, to government agencies and companies which are utterly misaligned with your own interests? But we haven't got to the best parts yet. We are not far from Snowden's revelations.
In the wake of the Sept. 11th terrorist attacks, October of 2001 saw the signing in to US law of the much-reviled Patriot Act. In contravention of even the loose and nominal protection offered by FISA, the Patriot Act allows essentially unlimited surveillance of any US citizen for any reason, but as an almost cruel joke does include a requirement that the government obtain a US court order, so long as the court order is granted within 72 hours after the surveillance has taken place. Foreign citizens can be surveilled for up to one year without any court supervision. I will not spend much time reciting the details or spelling out the consequences of such a fundamentally Draconian piece of legislation since it is so well-known already, but suffice it to say that the name of the game in this case is "shoot first, ask questions later". Regarding that seemingly benign stipulation that foreigners can be surveilled for up to a year without any legal oversight, it must be pointed out that with IP masking it is easy to pretend that you are located anywhere in the world, and so there is nothing to prove whether someone is or is not using such technology. This effectively opens the door to the US government spying on its citizens under the unfalsifiable pretext that they could be foreigners, since it is literally impossible with IP masking, Tor and other such tools, to determine who is domestic and who is foreign. This is one of countless examples which I will refrain from listing, where the very act of attempting to use technology to neutralize the heavy hand of government coercion "necessitates" changes in the law which make provision for one's rights to be discarded entirely.
And now for the pièce de résistance, the jewel in the crown of government overreach. In 2007 after the passing of the Protect America Act (that expansion of FISA which removes the warrant requirement for surveillance of foreign targets), the NSA launched their mass electronic surveillance data mining program called "PRISM". This is of course the program brought to light famously by Edward Snowden, after it was revealed that the FISC court had required that a subsidiary of Verizon turn over logs tracking all of its customers' telephone calls on an ongoing daily basis to the NSA. If you thought I was Microsoft-bashing when I listed the infractions against your confidence by that company, rest assured that I take an equal-opportunity approach to shaming the guilty. Similarly to Verizon turning over its logs to the NSA, many major tech companies have provided back-door access to their systems to the NSA, but full details as to which companies are involved have not been revealed publicly. Among those companies that are known to be involved are such minor players as Facebook, Google, Yahoo, Microsoft, Skype and Apple. Some companies such as Yahoo have fought back and refused to hand information over, but a 2008 congressional decision gave the Department of Justice authority to force reluctant companies to comply. All of this is of course conducted without the need for any warrant or judicial oversight whatsoever.
PRISM collects both online communications (email, VoIP, search queries, chat, etc.) between Americans and any foreign entity including websites hosted outside the US, and metadata on phone calls. By metadata is meant information about the phone call and the caller, but supposedly not the content of the calls themselves; the content of the calls can, where necessary, be monitored under the rubric of CALEA, as mentioned earlier. Just when you thought that there might be some legal (if not moral) justification for such a program, whereas in section 215 of the Patriot Act the government is required to provide evidence that the information they are gathering is relevant to an authorized investigation (one which is conducted expressly to protect against international terrorism or secretive espionage/intelligence services), there is obviously no way that every wireless customer in the US can be materially tied to any such activities. Obviously, any evidence that section 215 requires cannot be provided for all these customers. So you would think that, in light of Snowden's recent revelations, such a program would have been struck down with contempt as both illegal and incredibly damaging to what little reputation the US government has left. How optimistic! Indeed, in 2013 the US Supreme Court halted a challenge to a warrantless surveillance program by the US government (Clapper v. Amnesty International USA). In this challenge, the Obama administration successfully argued that government wiretapping laws such as PRISM, which were initiated following the Sept. 11th 2001 attacks, cannot be challenged in court. A 5-4 majority concluded that, because the eavesdropping is done secretly, groups that sued to nullify the law have no legal standing to sue - because they have no evidence they are being targeted by the FISA Amendments Act. All such assertion of them being targeted by such surveillance is "speculative" and thus not admissible. Truly it seems, the ends must justify the means.
Up until 2013, the vast majority of internet users, voters, ordinary Americans and interested parties, while perhaps jaded enough to disbelieve the honeyed words of most politicians, trusted their government enough as beneficent protectors of the "common man" to justify some degree of participation in the political process and to believe the narrative that the established media, both online and traditional, put forth. The government, they might have said, for all its problems and inefficiencies, is fundamentally on the side of the people. Then in to a Hong Kong airport steps a man named Edward Snowden, and in June of 2013, the world would learn just how bad the situation really is.
It should be clear to anyone who has read this far, through the odyssey of the past two centuries, just what the connection is between privately owned property and privacy. But objections may have begun to form in the reader's mind about whether intellectual property itself really is necessary in order to protect the online privacy which many of us thought we enjoyed up until recent revelations forced us to re-consider. Could the notion of "traditional" property be sufficient to protect the online exchange of information?
It should first be noted that intellectual property, while obviously not as old as the concept of property itself, has a long history of its own. Whereas the concept of property reaches back in explicit written form at least to the ancient code of Hammurabi and evidence suggests Neolithic societies had some conception of private land ownership, intellectual property has historical precedents reaching well in to antiquity, long in advance of the invention of the printing press, at least as far back as Periclean Greek times when, for example, the city of Sybaris had a form of patent law. There are numerous other examples of what we would today recognize as intellectual property from ancient cultures around the world, and this means that intellectual property, far from being a machination of the so-called "robber baron" age of the 19th century as has been so often portrayed, is at least as old as democracy, Western philosophy and a host of other inventions and cultural advancements which we would consider foundational to the West. Thus to call property "traditional" and think of intellectual property as a novelty, as the new kid on the block, is to assign the label of "novelty" to other ideas in such a way as no sane person would admit to doing.
But to return to the main point, the notion that physical property rights are sufficient to protect the transfer of non-physical packets of information must be addressed. The first thing to understand is that the burden is on the person suggesting that they are sufficient, to establish this as a fact beyond doubt. The reason for this is twofold. First, I who am suggesting that they are not sufficient cannot be called upon to prove a negative - it is up to my interlocutor to establish just how immaterial goods could be sufficiently protected. Second, intellectual property laws have been developed specifically in order to address the failings of physical property laws in the sphere of non-physical property; in other words the idea that "IP is necessary to protect non-physical property" has been established as a fact already, and it falls to the challenger to explain just what has changed which would make this no longer true.
Often, it is asserted that the Fourth Amendment applies to online privacy as much as it does to privacy in the home. However this is entirely untrue, since the Fourth Amendment protects only against violations related to property. Even in the case of Katz v. United States, no general right to privacy was upheld by the Supreme Court, and the Third Party Doctrine as the reader will recall, has explicitly rendered all information transmitted to a third party as not belonging to the originator. The Fourth Amendment protects against unreasonable searches of property, of which there is none without establishing information as property, and against unreasonable seizures, which again requires that information be considered property and the unauthorized duplication of it as a seizure. You cannot believe that "sharing isn't stealing" and at the same time invoke the Fourth Amendment as your protection against the "seizure" of your own property, at least not without asserting an obvious contradiction.
One much more serious objection to the idea that IP laws are necessary to protect information, is that the free market will favour those companies who protect privacy over those who don't, because there is a demand for privacy which the market will satisfy. Much has been written about this topic on both sides in scholarly literature, but it must be noted that the same objection could easily be made about the protection of the ownership of material assets. Now, there are many anarcho-capitalists who would in fact argue that all property laws are unnecessary, and that voluntary association and the free market will indeed protect the ownership of material assets no less than it will protect immaterial ones, a thesis with which I would agree so far as it goes. However the history of property violations in times and places where virtually no governing authority has held any power at all, should be enough to convince one that an absence of the rule of law offers scarce little protection of material assets, and a similar degree of protection for immaterial assets.
In order to avoid this essay running to book-length and in to multiple volumes, I will not here attempt to address every conceivable objection to IP as necessary to protect immaterial property, but rather move on after having touched all-too-briefly on a few of the issues raised against it. The bottom line is that if the reader can conceive of some way to protect information outside of IP laws, they stand to make a great deal of money in doing so, and so we await that brilliant stroke of genius, though for the preservation of our health we do not hold our breath.
At this point it would be helpful to examine a challenge which is not central, but still related to the protection of privacy through IP; namely the notion that non-physical property is not worthy of protection.
By far the most common argument for the idea that IP is not worth protecting, is that intellectual property is fictitious. And, these detractors would say, it is fictitious just as a result of being non-physical. They are typically among those who would suggest that there is no such thing as "society" or "culture" or numbers or any of innumerable conceptual entities. They cannot see the forest for the trees, because there is no forest, only trees. This is a metaphysical question, one with a long history and one which I do not pretend to resolve in the context of an essay about property and privacy. Yet I do not need to, in order to lay this objection aside. What these detractors forget is that in fact, property itself is merely a concept and thus fictitious. Property, being entirely conceptual, has no independent ontological standing in the way that say a sailboat or a hammer or a cuttlefish does, and yet those making this objection have chosen to distinguish between property and IP on this very basis. It is evident right from the start that they do not understand what property itself is, and so their objection can be discounted outright as being entirely self-effacing. If you reject concepts as fictitious or purely psychological phenomena, then you must also reject the reality of the concept of property and with it, as has already been established earlier, the concept of privacy itself.
This is far from the only objection to the worth of IP, however. One may grant that IP is not fictitious, but might state that the advantages which the protection of immaterial goods confers are far outweighed by the disadvantages that such protection offers to the general welfare of society. To this I can only suggest that they either do not understand what privacy is, or are willing to sacrifice it for the "greater good". Neither I nor anyone else can sensibly tell you what to value, that is up to you and no argument can ever persuade you that privacy is a worthwhile end in itself. What I can do however, is to illuminate just what is at stake in preferring the greater good as an end in itself.
The objection that IP must be sacrificed for the greater good is a consequentialist one. Consequentialism is a school of normative ethics which holds that the consequences of an action are the benchmark by which any ethical theory should be evaluated, or more colloquially that "the end justifies the means", and often consequentialism takes the form of a philosophy which places the greater good highest among ethical goals (the latter is known as "utilitarianism"). One problem with this view is that if the ends are all that the theory specifies, then the means, being justifiable only so long as they serve the ends, fall entirely outside of the theory itself. This is the bane of any consequentialist, that their theory has no predictive value for particular actions - it can only evaluate the ethical content of an action after the fact.
This problem is especially evident in the case of our anti-IP, pro-privacy consequentialist; they know they want privacy, but are bewildered as to what the fulfilment of that goal requires of them in terms of beliefs about property. They do not believe that adherence to a principle is of paramount importance (except paradoxically that single principle which governs their philosophy, that of the ends justifying the means), and this leaves them vulnerable to having their aims thwarted by unforeseen consequences. A practical example will be useful in illustrating just how slight is the philosophical depth of this particular breed of consequentialist. They may suggest that non-material property is not worth protecting on the basis that there is a net disadvantage in doing so, perhaps as a result of the benefits conferred by infinitely available entertainment. But they would of course be the first to raise a storm of condemnation against the person who erased the 1's and 0's which reside so immaterially in their bank account. And yet they would have no recourse to a governing principle which would protect them, if only in theory against such an offence, but would rather be relegated to the ceaseless shoe-horning of ad hoc prohibitions in to law to address every conceivable infraction. The more learned among these consequentialists might even denounce the seemingly infinite reproduction of those 1's and 0's by the Federal Reserve or their own nation's central bank, thus diluting the value of their own 1's and 0's in the first place. Their intentions are of the most noble kind; that the greatest good be the universal standard by which any ethic is judged. And yet they are like a dog who chases its tail, whose goal ever evades them, since they misunderstand the incompleteness of their theory and the essential futility of any ethical project which is based solely upon it.
There is a great danger in not adhering to a definite principle, and because it manifests the illusion of safety, perhaps a still greater danger in adhering to a principle which is so vague as to be nearly meaningless (such as "the greater good"). Avoiding the pitfalls that vagueness would lead you in to requires not only a clearly stated principle, but a principle which is universally applicable; this is the test of any philosophical position - just what power does it have when applied across the board?
Of course the good of all is a worthy standard by which ethical systems can be evaluated, and not at all incompatible with the good of each individual. They are in fact one and the same. But the right principle is indispensable in the effort to achieve such a lofty goal, and it is not enough to just have the right principle - one which is universally applicable - but you must actually be willing to apply it universally, to have the personal integrity, the moral virtue, to apply it no less to others than to yourself. It is all too easy to consider oneself the exception to the rule; we do it all the time. Examples can be found everywhere, embedded even in the very grammar of our discourse. Who among us would ask for less privacy? And who among us would wish to live in a world of more secrecy? Yet the distinction between privacy and secrecy is only semantic; the two concepts do not differ in any essential way, but the former we apply to ourselves and those who resemble us, the latter we apply to those whom we distrust, who are alien, the other. And this is the crux of our problem; it is this hypocrisy which must be overcome, this hypocrisy which is the bedrock upon which our predicament has been erected.
The vast majority of people have fused in their minds the cause for which Edward Snowden fights, and that of Julian Assange. Assange has even expressed admiration for Snowden and legitimized this merging of the two men's interests by saying as much. But, whether one or both men truly realize, they in fact could hardly be more philosophically opposed, and this distinction is absolutely crucial to understanding just how we ended up where we are today. While Snowden is a champion of the cause of privacy, Assange is explicitly a crusader against privacy.
Snowden, for all his noble sacrifice in bringing to light the colossal extent of the privacy violations perpetrated by the US government, holds a contradictory position. He believes in privacy first and foremost, that the actions and property of private actors should remain obscure if they so choose. And yet, he is clearly a consequentialist in one respect, justifying the means by way of their ends, and so is willing to undermine his own position - that of the inalienable right of all to privacy - in order to serve the greater good of exposing widespread privacy violations. He must undermine the right of his employer to privacy in order to protect the public's right to privacy. Whether he was right to do so, whether in fact the ends will justify his means, is beside the point and also remains to be seen, but the fact is that he cannot simultaneously assert the right to privacy and violate the privacy of his superiors, regardless of whether he calls himself a whistleblower. Like with "secret" and "private" there is no strict demarcation between a whistleblower and a violator of privacy, the definition and who falls on what side of it depends entirely on one's own perspective and the relationship of one to the party who stands to benefit. Again, I must stress that I am not passing judgement on Snowden who was obviously placed in an agonizing position for any thoughtful individual, and do not condemn his actions. I merely point out that he must destroy the privacy of some in order to save the privacy of others and so is unwilling to adhere to a universal principle that would protect privacy.
Assange on the other hand, does not present any such contradiction, except in his stated affiliation with Snowden. Assange does not care about the privacy of anyone public or private, as his whole enterprise through Wikileaks is fundamentally opposed to it. From the Wikileaks "About" page:
It is only when the people know the true plans and behaviour of their governments that they can meaningfully choose to support or reject them. Historically, the most resilient forms of open government are those where publication and revelation are protected. Where that protection does not exist, it is our mission to provide it through an energetic and watchful media.
It does not matter whether the target is the "government", the "power elite" or "your next door neighbour"; a rose by any name would smell as sweet. Confucius is said to have uttered one of the great lines of all time, that "the beginning of wisdom is to call things by their proper name", and the name for what Wikileaks destroys is twofold; they undermine not only "secrecy" but "privacy". The goal of Wikileaks is to enhance and promote the universal "openness" of information, and to expose the secrets of any individual or group in whom their client (the public) takes a political interest. There is no essential, objective difference between a "secret" and that which is "kept private", the only difference is in terms of the perspective of the person assigning those labels.
You cannot steal secrets without an affront to privacy.
In a recent article in Glasgow's The Herald, Snowden has made a foreboding proclamation: that a child born today will never know what privacy means. One might question the burden of such a statement, because our own mature adult population is living that reality in this very instant. On television, the internet, any form of media you turn to we see crowds of demonstrators around the world, massive congregations of people who know that something is wrong, and demand change. You can look at these crowds of attentive, reasonable people, and still be unable to point to more than a few solitary individuals who understand the full implications of property to privacy.
In this article, Snowden cites, as have many others who champion the cause of privacy, George Orwell, author of the seminal work entitled 1984. Yet Orwell's work is less seminal than one might think. He was preceded by a fellow named Aldous Huxley, who wrote a work which has a superficially similar message, though differs in a fundamental and important way; that work is entitled Brave New World. Those familiar with only the former who have merely gathered a synopsis of Huxley's groundbreaking work might tell you that both authors are barking up the same tree, but this is not the case upon a closer examination. It is revealing that Snowden cites Orwell and not Huxley, for (to repeat the words of Neil Postman who phrased the difference in as eloquent a way as can be imagined) in Orwell's magnum opus it is the things that we hate which destroy us - authority, violence, control - whereas in Huxley's yet more profound masterpiece it is the things that we love - cheap entertainment, trivialities, distractions - which prove to be our undoing.
It is revealing that Snowden cites Orwell and not Huxley, because for all of his noble sacrifice, Snowden is fundamentally confused about why we lack privacy. He seems to believe that a boogeyman of sorts lies at the heart of our predicament. But rather more frighteningly, we are in fact behind it. We willingly, happily even, trade any hope of privacy for cheap entertainment and scoff at intellectual property as an outdated relic of a bygone era, all the while opiating ourselves with the unpaid fruits of others' labour, hypocritically demanding the right to protect access to our own information, and spouting empty platitudes to morally justify our mutual self-harm in the form of file-sharing.
One of the amazing, baffling and at times frustrating things that confronts the attentive student of history is an almost comical tendency that humanity has, to stub its collective toe on the same stone over and over again like a blind man with the short-term memory of a goldfish. Or rather, it would be outright comical if it wasn't so utterly tragic. This, unfortunately, is an unavoidable by-product of group decision making. As individuals, human beings tend to be thoughtful, considerate and genuinely concerned with both their own and others' welfare, but once the group dynamic is introduced, all bets are off. As it was when after the first "Red Scare" in 1920 the American people swore they wouldn't get fooled again by an imaginary foe, and after the second Red Scare in the late 1940s the same lesson had to be learned anew, only for the early 21st century to prove that it hadn't with the rampant xenophobia, witch hunts and surrender of civil liberties that was seen during the age of "Terrorism" - so it is now with yet another stone which confounds us like a Gordian Knot. We honestly believe with a deep conviction, that we can get something for nothing. That in fact some things really are free. That something fundamentally, qualitatively rather than quantitatively, has changed now that the scale of information exchange has reached heights which could not have been envisioned by previous generations.
Nothing in this world is free. Even the air we breathe comes at a cost, and that is the cost of ensuring its purity, a problem which has really only come to the fore during the era of globalization. The fact is that in the long run, you only get what you pay for. Sure, some few may be able to live parasitically at the expense of others, but in the grand scheme actions have inescapable consequences. The inescapable consequence of having debased the concept of intellectual property and eliminated the private ownership of information, is that the information you originate cannot be protected in any way which conforms to a non-arbitrary ethical principle. A lack of privacy just is the cost of "free" entertainment.
Taking seriously the need for enforcing intellectual property rights is not a panacaea, it is not a cure-all for what ails us in terms of privacy violations. It is, however, the first and indispensable step in ensuring that your privacy is protected, since it unambiguously establishes all communications as being essentially yours, and allows you legal and moral jurisdiction over who receives it and how it is used. The government and unscrupulous parties will always attempt to violate your privacy - it is simply in their own interest to do so. However you do have a tool to fight back with, and that tool is claiming your communications as your own personal property. Nothing less will allow you to protect your privacy, unless you are willing to sacrifice having access to all modern communications tools, in which case you have given up your rights anyway.
Our forerunners were not ignorant and nor are their own most closely held philosophical principles irrelevant to our time (the belief in the irrelevance of the past is, incidentally, yet another face of that stone which attracts our toe like the flame does the moth). Every generation believes itself to be the exception to the rule, is convinced that now things really are different, and that the game has changed once and for all. This belief betrays a dangerous degree of narcissism and a sort of historical naiveté which borders on myopia. Countless generations before us have placed a premium on the concept of property, and to earlier generations reaching back in to antiquity, intellectual property was an important concept which was no less worth protecting. Now with the advent of the internet, much like with the advent of the printing press, the concept of intellectual property is not less relevant, but more relevant than ever; this fact can only become more evident as time goes on, as what forms of digital privacy remain, are further eroded. Far from being unenforceable, all that prevents the enforcement of intellectual property rights is a lack of political will, the will of the people. And the people must decide, being entirely culpable, which of the two irreconcilable alternatives they prefer: a world without digital privacy, or a world without cheap amusements.