THE PRIVATE AND OPEN SOCIETY
BY JOHN GILMORE


A transcript of remarks given by John Gilmore at the First Conference 
on Computers, Freedom, and Privacy, March 28,1991

My talk concerns two ethics - the belief in an open society and the 
belief in privacy.   These two ethics are related , and I would like 
to say something about how they relate to our conduct in the world. 

This society was built as a free and open society.  Our ancestors, our 
parents, our peers, and ourselves are all making and building this 
society in such a way - because we believe such a society outperforms 
closed societies - in quality of life, in liberty, and in the pursuit 
of happiness. 

But I see this free and open society being nibbled to death by ducks, 
by small, unheralded changes.  It's still legal to exist in our 
society without an ID - but just barely.  It is still legal to exist 
by paying with cash - just barely.  It is still legal to associate 
with anyone you want - unless they bring a joint onto your boat, 
photograph naked children for your museum, or work for you building a 
fantasy roleplaying game.  And I think conferences like ours run the 
risk of being co-opted; we sit here and we work hard and we talk to 
people and build our consensus on what are relatively minor points, 
while we lose the larger open society. 

For example - we have the highest percentage in the world of our own 
population in jail.  We used to be number two but last year we passed 
South Africa.  We are number one. 

Over the last ten years we've doubled the number of people in jail.  
In fact, those extra cells are mostly filled with people on drug 
charges, a victimless crime that twenty years ago was accepted  
behavior.  

But it's no wonder we are concerned about privacy, because we are all 
"lawbreakers", We all break the law, but few of us are criminals.  The 
problem is that simply attracting the attention of the police is 
enough to put the best of us at risk, because we break the law all the 
time and it's set up to make that happen! 

 I don't blame the cops for this.  They mostly just enforce the bad 
laws that the legislatures write.  The legislatures aren't completely 
at fault either, because in the long run, only educating the whole 
population about the benefits of openness has a chance.  And  I think 
I do a little bit of work in this area. 

But beyond that, as P. T. Barnum said, "Nobody ever lost money by 
underestimating the intelligence of the American public."  Where I 
hold out the most hope is in a different approach.  In the paraphrased 
words of Ted Nelson, we probably can't stop this elephant but maybe we 
can run between its legs. 

In most of Europe, phone companies don't record the phone numbers when 
you call, and they don't show up on your bill.  They only tick off the 
charges on a meter.  Now, I was told that this is partly because the 
Nazis used the call records that they used to have, to track and 
identify the opposition after taking over those countries in World War 
II.  They don't keep those records any more. 

In the U.S., people boycotted the 1990 census in record numbers.  I 
think that the most shameful story of how Japanese-Americans were 
rounded up using census data had a lot to do with that. 

Professor Tribe talked about the distrust we must hold for our 
government.  We have to realize that people who run the government can 
and do change.  Our society and laws must assume that bad people - 
criminals even - will run the government, at least part of the time. 

There's been a lot of talk here about privacy ... but we haven't 
focused much on why we want it.  Privacy is a means; what is the real 
end  we are looking for here?  I submit that what we're looking for 
increased tolerance. 

Society tolerates all different kinds of behavior - differences in 
religion, differences in political opinions, races, etc.  But if your 
differences aren't accepted by the government or by other parts of 
society, you can still be tolerated if they simply don't know that you 
are different.  Even a repressive government or a regressive 
individual can't persecute you if you look the same as everybody else.  
And, as George Perry said today, "Diversity is the comparative 
advantage of American society".  I think that's what privacy is really 
protecting. 

The whole conference has spent a lot of time talking about ways to 
control uses of information and to protect peoples' privacy after the 
information was collected.  But that only works if you assume a good 
government.  If we get one seriously bad government, they'll have all 
the information they need to make an efficient police state and make 
it the last government.  It's more than convenient for them - in fact, 
it's a temptation for people who want to do that, to try to get into 
power and do it.  Because we are giving them the means. 

What if we could build a society where the information was never 
collected?  Where you could pay to rent a video without leaving a 
credit card number or a bank number?  Where you could prove you're 
certified to drive without ever giving your name?  Where you could 
send and receive messages without revealing your physical location, 
like an electronic post office box? 

That's the kind of society I want to build.  I want a guarantee - with 
physics and mathematics, not with laws - that we can give ourselves 
things like real privacy of personal communications.  Encryption 
strong enough that even the NSA can't break it.  We already know how.  
But we're not applying it.  We also need better protocols for mobile 
communication that can't be tracked. 

We also want real privacy of personal records.  Our computers are 
extensions of our minds.  We should build them so that a thought 
written in the computer is as private as a thought held in our minds. 

We should have real freedom of trade.  We must be free to sell what we 
make and buy what we want - from anyone and to anyone - to support 
ourselves and accomplish what we need to do in this world. 

Importantly, we need real financial privacy because the goods and 
information cost money.  When you buy or sell or communicate, money is 
going to change hands.  If they can track the money, they can track 
the trade and the communication, and we lose the privacy involved. 

We also need real control of identification.  We need the right to be 
anonymous while exercising all  other rights.  So that even with our 
photos, our fingerprints and our DNA profile, they can't link our 
communication and trade and financial activities to our  person. 

Now I'm not talking about lack of accountability here, at all.  We 
must be accountable to the people we communicate with.  We must be 
accountable to the people we trade with.  And the technology must be 
built to enforce that.  But we must not be accountable to THE PUBLIC 
for who we talk to, or who we buy and sell from. 

There's plenty of problems here.  I think we need to work on them. 
Just laws need to be enforced in such a society.  People need to find 
like-minded people.  And somebody still has to pay the cost of 
government, even when they can't spy on our income and our purchases. 
I don't know how to solve these problems, but I'm not willing to throw 
the baby out with the bath water.  I still think that we should shoot 
for real privacy and look for solutions to these problems. 

How do we create this kind of society?  One way is to stop building 
and supporting fake protections, like laws that say you can't listen 
to cellular phone calls.  We should definitely stop building outright 
threatening systems like the Thai ID system or the CalTrans vehicle 
tracking system. 

Another thing to do is, if you know how, start and continue building 
real protections into the things you build.  Build for the US market 
even if the NSA continues to suppress privacy with export controls on 
cryptography.  It costs more to build two versions, one for us and one 
for export, but it's your society you're building for, and I think you 
should build for the way you want to live. 

If you don't know how to build real protection, buy it.  Make a market 
for those people who are building it, and protect your own privacy at 
the same time by putting it to use.  Demand it from the people who 
supply you, like computer companies and cellular telephone 
manufacturers. 

Another thing is to Work to eliminate trade restrictions.  We should 
be able to import the best from everywhere and we should be able to 
export the privacy and the best of our products to the rest of the 
world.  The NSA is currently holding us hostage; Mainframe 
manufacturers, for example, haven't built in security because they 
can't export it.  IBM put DES into their whole new line of computers, 
and they were only going to put it on the U.S. models, but the NSA 
threatened to persecute them by stalling even their allowable exports 
in red tape.  IBM backed down and took it out.  We can't allow this to 
continue. 

We also need to educate everyone about what's possible so we can 
choose this kind of freedom rather than assume it's unattainable.

 None of these ideas are new. Freedom of association and privacy have 
been prized by people everywhere. Cryptography has been used for these 
goals for thousands of years. But we owe a special debt to 
cryptographer David Chaum for researching how modern cryptography can 
enable these goals to be met by everyone in society, on a large scale. 
By reading David's work, you can begin to understand the capabilities 
of cryptography and how to apply them to provide financial and 
personal privacy.

We need to keep cash and anonymity legal.  We'll need them as 
precedents for untraceable electronic cash and cryptographic 
anonymity. 

I think with these approaches, we'll do a lot more for our REAL 
freedom, our real privacy, and our real security, than passing a few 
more laws or scaring a few more kid crackers.  Please join me in 
building a future we'll be proud to inhabit and happy to leave to our 
children. -


