Issue 1 Invented Languages Winter 2000/01

The Encryption Wars: An Interview with Eben Moglen

Jay Worthington and Eben Moglen

In just the past few months, online secrecy and security have gone through several upheavals. After ten years of trying to use arms export laws to regulate the spread of Pretty Good Privacy (PGP), the most commonly available form of personal, high-grade encryption, at the end of 1999 the U.S. govern­ment abandoned its efforts.At the same time, the DVD Copy Control Association, an organization representing Hollywood’s major studios, filed a lawsuit against Internet providers offering links to DeCSS, a freeware program which allows viewers to break the encryption on DVDs and copy them on their home computers. One of the lawyers representing the web sites in the DVD case, Eben Moglen, has been thinking and writing about these issues for many years. General counsel to the Free Software Foundation (developer and distributor of GNU, the core of the Linux operating system) and a professor at Columbia Law School, he has written numerous articles about the Internet (many are available at old.law.columbia.edu), and he is at work on a book, The Invisible Barbecue, analyzing the political and legal forces at play in the evolution of information technologies. Jay Worthington met him at Columbia University in early May for a conversation on the deep implications of these technologies for the cultural and social fabric of today’s world.

There’s a tone of exhortation that seems to run through your writing on encryption. Do you see some civic obligation to encrypt?

I guess. This was particularly true during the state of affairs in the fall of 1998, when I gave a talk at NYU called “So Much For Savages.” There was a feeling then that the United States government might actually continue export controls, so it was people’s civic responsibility to take advantage of the fact that the controls no longer rested on a technical basis, and the American secret world and other secret police no longer had any actual control over end-to-end encryption of the net. The hypothesis of “So Much For Savages” was essentially that the determination of whether to make an end-to-end encrypted Internet now belonged to the members of the Internet community.

The encryption export controls were lifted in the fall of 1999?

That’s right.

Do you think that’s a battle the government has given up on?

Well, I don’t think their answer is, “There’s nothing we’re going to be able to do about it,” but rather, “We are no longer attempt- ing to delay the adoption of strong encryption technology by United States export controls.” You’ll notice that they took the error out of the Global Positioning System.

So Iraq is now going to be able to target its cruise missiles precisely on top of the Washington Monument and not 50 meters away?

Yes. The military says they will continue to provide wrong information in just those places that are absolutely important, but I don’t think that means the White House or the Washington Monument. It means missile silos in Montana.

Do you think ten years from now we’ll see maps published showing the version of the United States that’s being released now, with these abrupt transitions from crystal clarity to fog?

Mapmaking is a very interesting subject in general, because when everybody in the country is carrying GPS equipment, one kind of mapmaking that will be absolutely possible consists of the whole structure of what we think of as free data. That is to say, people voluntarily walking around with GPS-equipped cell phones donating the stream of their information to a mapping database which will be a very accurate map of everywhere all the time.

Have you heard of any project like this today?

I’m not aware of any. But you can see thatit will happen. Data streams will exist, and there will be a kind of decentralized geographic information service structure. But like a lot of free-software activity, this will self-organize as people perceive the need or the possibility. It won’t organize ahead of that perception. In our movement, we get accustomed to the idea that what people think is neat or needed, they’ll do. As the net makes various kinds of collaborations possible that have never been possible before, people will do things collaboratively in new ways. Part of what I’m trying to do myself is to understand the political economy of a world full of that kind of content sharing.

But let’s return to encryption. Yes, it’s correct, the United States government effectively resigned from certain kinds of control activities in the past year. That represents the end of Phase I of the crypto wars, which was a public law controversy about government control over cryptography. Phase II of the crypto wars began with the DVD case at the end of last December. This is a private law controversy over cryptanalysis in which people are now attempting to control other people’s ability to understand encrypted material. So we have now moved quite sharply from one stage to another stage over the controversy about encryption in society. In phase one, we fought over constitutional and other public law rights to encrypt things ourselves. The leading forces against encryption and cryptography were policemen and spooks. Over the past decade, from the moment that PGP was distributed on the net until the government’s change in regulations late last year, the question was: Were people going to be allowed to keep secrets or were cops and spooks going to be able to control the development of the technology?

That question has now been answered. If the NSA can develop quantum computers—if somebody figures out a way to factor very large numbers—things like that might destabilize this new environment in a deep way, but as things now stand, cryptography wins over cryptanalysis in civil society for one set of applications, which is the maintenance of privacy in personal communications, and that will have a series of social consequences.

What’s your quick list of these consequences, good and bad?

When you do the social accounting, you can’t treat it as though we all live in Lake Forest, Illinois. Some of us live in Baghdad or Beijing or various other places. In those places, the balance of power between civil society and government is quite different from what it is in the United States. The Iraqi or the Russian gulag will be more difficult to erect in the twenty-first century. You can still have an empire of fear, but you have to base that empire of fear more on networks of personal surveillance and informers than on the interception of communication.

And domestically?

People are beginning to see they might have a stake in the right to anonymity and in what we now call privacy, the control over personal information. Both depend upon encryption-based solutions. If we are going to have the ability to read what we want without being surveilled, it will be because we are using agents to do our reading which are unidentifiable and which restore content to us in an encrypted stream. That’s how we get around people who establish surveillance blockages or interception points to find out what we’re reading and whether we’re paying for it, doing something seditious because of it, just looking at naked people, or whatever.

At the same time, encryption is at the heart of current mechanisms for extracting revenue from copyrighted streams of information on the net.

That’s precisely why we now find ourselves in disputes over whether cryptanalysis can be controlled by intellectual property law as cryptography was controlled by arms-export law. Rather than thinking about government control over whether we can encrypt, we’re now thinking about private power control over whether we can decrypt without permission, and that’s a different war, with a very different legal feeling to it. The eight largest movie studios in the United States can, paradoxically, spend a whole lot more money litigating these questions than the United States government ever could spend litigating export control regulations.

Do you think the lines here are as clearly drawn?

No. Here we have two different structures of the distribution of cultural products. You have a set of people who believe cultural products are best distributed when they are owned, and they are attempting to construct a leak-proof pipe from production studio to eardrum or eyeball of the consumer. Their goal is to construct a piping system that allows them to distribute completely de-physicalized cultural entities, which have zero marginal cost and which in a competitive economy would therefore be priced at zero, but they wish to distribute them at non-zero prices. They are prepared to give on price, but at every turn, as with the VCR at the beginning of the last epoch, their principle is that any ability of this content to escape their control will bring about the end of civilization. This is an absurd claim. Nobody it but studio executives.

There is, of course, an alternative economy trying to grow up. With respect to software, it’s happened already. It’s been demonstrated that zero-marginal cost products collaboratively developed on the net have measurable functional characteristics so that one can say in an objective way this is better or worse and is better produced anarchistically than they are in a proprietary mode. This is what GNU and Linux are about. You can have more people doing more work, contributing more rapidly, fixing more bugs at the point of discovery, and you have Lamarckian evolution of software so that all favorable characteristics are inherited and you get very rapid development. That’s why the development curve on free software products has been so staggering to commercial producers who didn’t know how these things could have roared up out of nowhere.

This is the hypothesis of “Anarchism Triumphant,” and part of what I’m writing about in a book called The Invisible Barbecue. We’re going to have a competition in certain sectors of the economy between property and non-property production, and non-property production is going to win. But the same can’t be said when the goods are not functional and there is not an objective evaluation of good or bad, and where the level of collaboration in production is lower. With such goods, there’s no inherent reason why non-property production drives out property production. However, non-property distribution drives out property distribution, and the reason is simply that non-property distribution propagates at the speed of personal recommendation.

Assuming decryption…

Absolutely. Non-property distribution assumes music you can copy as many times as you please and give to whomever you want, changing it however you like.

And how are producers compensated? Through the kinds of informal systems and prestige that commentators have observed in the free software movement?

They may very well be, and we have to ask how the producer gets paid, but at the moment we can understand that the distributor who wants to do the same thing in a property way will fail. The market will saturate with non-property distribution.

Unless people are willing to pay for certain proprietary content that can be defended…

Absolutely. The point is only that the distribution structures have an advantage when it is free. But free production structure has no advantage, so there’s nothing to prevent Warner Brothers from producing better music than a garage band that gives it away for free. So, if there were no attempt to make what I would call monopolistic decisions, there’s no end in sight to the coexistence of the free cultural properties market and the fee-based proprietary cultural properties market. They would exist independently of each other for the foreseeable future. What is happening now in the lawsuits against MP3.com and Napster is that the content industries are saying that you’re not allowed to have a non-property distribution structure. The reason you’re not allowed to do this, they’re saying, is that even if you have non-property goods to distribute, the mere fact that you could also be distributing proprietary goods through such a structure means that the whole structure is contributory copyright infringement and should be suppressed.

What do you think will be the long-term outcome of that particular struggle?

You’d have to put every teenager in the world in jail, and you can’t do it.

What if Disney targets not its customers, but the programmers who make Napster possible?

But, in the end, of course, that turns out to be the customers. The problem here is that the people who have made free distribution systems have not used free software to do it, and this is the difference between Napster and Gnutella. Once the free distribution structure is free throughout and the software is free, there is no centralized server anymore, and no point of contact between Disney and the distribution system it is attempting to suppress. The consumers then constitute the distribution system.

And the people who write the free software that makes this distributed network of relationships possible?

Absolutely. All of this depends upon that.

Are there ways for the proprietary distribution camp to approach or attack this system?

What we are going to see is a strong effort on the part of the content industry to attack free software centrally. In the pipelines they’re trying to build the switch between their pipe and your eyes and ears; your computer is the weakest link in the chain. You control the operating system kernel of that computer, and if you control that operating system, then you can say, “Hey. On the way to the sound card, drop this where I want it put.”

So the real civic obligation is to download Linux?

The real civic obligation is to use free software. That’s correct.

How do you proselytize that?

If you’re a capitalist and you have the best goods and they’re free, you don’t have to proselytize, you just have to wait.

How long would you say Linux has been the best operating system? Five years? It seems like there’s a whole world of consumers out there who don’t feel themselves capable of judging whether Linux is a better good at all.

There are two possible ways of thinking about this question. One is, how long does it take the current user base to get to free software, and the other is how long does it take the current user base to be replaced by another user base? It’s a transitional issue. In 1979, when I was working at IBM, I wrote an internal memo lambasting Apple’s Lisa, its first attempt to adapt Xerox PARC technology, the graphical user interface, into a desktop PC. I was then working on the development of APL2, a nested array, algorithmic, symbolic language, and was committed to the idea of making languages that were better than natural for procedural thought. The idea was to do for whole ranges of human thinking what mathematics has been doing for thousands of years in the quantitative arrangement of knowledge, and to help people think in more precise and clear ways. What I saw in the Xerox PARC technology was the caveman interface: you point and you grunt. A massive winding down, regressing away from language in order to address the technological nervousness of the user. Users wanted to be infantilized, to return to a pre-linguistic condition in the using of computers, and the Xerox PARC technology’s primary advantage was that it allowed users to address computers in a pre-linguistic way. This was to my mind a terribly socially retrograde thing to do, and I have not changed my mind about that.

Don’t you think it’s increasingly difficult to resist Windows?

Well, maybe. But when my two-and-a-half year old nephew is fifteen, is he going to want to use an operating system he can’t change? After a whole decade-and-a-half of life with computers, he’s just got to accept computers as formlessly, seamlessly, totally incorporated, like his father’s Oldsmobile? That’s just not the way society is going to exist. The number of people who are going to demand control over their environment is going to be very large.

You mean demanding to have access to source code, to tinker with it, and share it with others? Is that how you’re defining controlling their environment?

Absolutely. In the same way, kids wanted the engines of automobiles to be malleable.

What fraction of Americans actually knew how to tinker with the insides of their cars?

The answer would be an interesting one. I don’t know, but it’s an important question in the historical sociology of the American relationship to the automobile. After World War II, when a high-school-to-factory attitude prevailed about where the good working class life was, what proportion of those kids, mainly boy kids, grew up messing with automobiles?

What civic obligations do we have today?

The digital divide is a serious issue today. If we made a list of the eight or the ten most important political issues in this society, my guess is that three or four of them would be issues that you can’t understand, let alone have a good opinion about, unless you know a good deal about technology. In these, people are getting rushed out of the issues, because the guys who know are racing to lock it up before everybody else figures out what’s going on.

Civic duty is, therefore, to learn what you need to learn in order to make decisions in a democratic society in a grown-up way. That’s the same civic duty that Thomas Jefferson or George Washington believed in. Most importantly, we have a duty to look at our educational system to find out if it teaches people what they need to know in our society.

I made a proposal to the Israeli government a year ago that went like this: Take every computer that you threw away in the state last year, just the ones you scrapped, and put free software on them. They are now the routers, bridges, switches, and email servers for an entire free broadband network for all of Israel. The only thing you don’t have is the cable. But you have required annual military reserve duty. Take one cycle and say everybody not performing militarily essential service is laying fiber, for one year. You are now done. Free software, scrapped computers, one year of conscripted labor, plus the physical cost of the fiber and you’re done. You have a broadband network in a little, demographically-concentrated country with a highly educated population. And when I talk about building a network I mean on the West Bank and Gaza too, and then you say, “This is a gift. We’re leaving this here. This is a little bit of what we need to do, two states, one network.” And you know what, nobody will ever bomb that network, tear it up or throw it away, because that’s how, if you’re in Gaza or the West Bank, you get out to the world. That’s how you free the people you have been chaining up all these years.

But the truth is that what the digital divide means, what inequality of access means now, primarily, is a series of decisions about the allocation of hardware and software coming home to roost. We have all the computers we need. We have more computers than we need. Giving every kid in the country a computer? That’s nothing. We’re scrapping the stuff. And software? We can provide free software to everybody. That’s no problem. Our movement is built for that.

What we don’t have is a telecommunications infrastructure that is free. What we don’t have is the time, the online hours. This is why we need to use the spectrum to create a free net—an uncharged, birthright-bandwidth system. I propose a simple, birthright-bandwidth structure, using just the current analog television frequencies broadcasters have already promised to give up under the 1996 Telecommunications Act. It’s good spectrum. It goes through walls very nicely. It does all the things we need. We could give everybody who is here 400 megabits of bi-directional bandwidth. Maybe we could go to 600. You’re not a television broadcaster, but you’re a radio station, and if you and your friends get together, two or three of you, you can be a television station. My proposal is that bandwidth is personal to you. It’s in a box like your cell phone. You take it to work in the morning and contribute that bandwidth to your employer. You take it to church, to your clubs, your bowling league, wherever you go. The idea is that civil society is constituted around the notion of an equality of access to communications. We should be living in an environment in which the recognition is that the building of the public infrastructure allows us to render connection as completely and obviously a personal right as driving on the street or walking in the park or drinking the water or breathing the air.

What do you see as the immediate cultural and political roadblocks in the way of that kind of a birthright re-conception of bandwidth?

The answer is “the invisible barbecue,” the way our politics is owned. That’s the problem. That’s why I am writing about a three-cornered entity: technology, law, and politics in this age of corruption. That’s what we have. We’re making land rushes. We’re trying to turn everything into property. That’s the conceptualization. The relevance of encryption is that encryption is a device for turning bitstreams into property by creating the power to exclude. In order to have the right to exclude from bitstreams you need encryption.

Our whole political structure and legal structure is making this possible: the ease of getting patents, the giving away of spectrum in the 1996 Act to people who already had spectrum in order to build an HDTV system that they’re not building. The Federal Communications Commission’s fundamental strategy is to permit duopolies in whole areas of their traditional regulated fields so long as these duopolies then go out and compete against other duopolies. All these structures are for sale because our politics is for sale. The law’s power to create property is now in use in a very heavy way.

Alan Greenspan says we should beware of government regulation and interference in the market, and that government should limit itself to creating and protecting property, real and intellectual, as though there weren’t regulation and intervention in the market already. We have massive market intervention by legislators who have the power to create property rights through law and who are selling that power for bribes we call campaign contributions. We can’t create a free anything, because it is ideologically and politically ineffective for things to be free. Making things free doesn’t bring in campaign contributions.

And yet you seem to feel that, ultimately, free software and free cultural distribution will simply happen as a result of the increasing ease of communication, and of creating cooperative, information-sharing communities.

At the end of “Anarchism Triumphant” I say that this is the big political issue of our time, and aristocracy looks set to win. I mean, they are in control. They have all the money; they have the politics; they have the shape of things to come in their own view. The force is with them. When I say there are these reasons why things ought to be different, I’m talking in the way people were talking in European rathskellers in 1848. “There ought to be democracy; there ought to be liberalism; there ought to be freedom; aristocracy ought to go; the ancien régime ought to disappear.” I end with Chou En-Lai talking to Oriana Fallaci: “What’s the meaning of the French Revolution?” she says; “Too soon to tell,” he says. This is a long-term question. Are Rupert Murdoch and Michael Eisner going to prevail in the short term? Yes. Are they going to prevail fifty years from now? I don’t know.

But what kills ancien régimes is not that they are reactionary. What makes the ancien régime fall is that it is modernizing. This is the problem of the French in the 1780s; this is the problem of the Iranians in the 1970s; this will be the problem of the Chinese in the next decade. When you modernize, you begin the process of change and enable new forms of human growth and expression. It’s difficult to keep those processes under control. The processes now being lit as humanity comes into a new relationship with itself, a world where everybody is connected to everybody else without intermediaries, that social structure, that condition of massive interconnection that we call the Internet, changes everything in profound ways. They are modernizing this regime. They think they are going to control it, that property relations, legal relations, technology, Lawrence Lessig’s “code doing the work of law” kind of idea, that all of this is going to make them stable. But it is not going to do that, in my opinion. It is going to produce the hunger for the various kinds of freedom and liberation that the net makes possible. If they stand between the people and that freedom, they are going to be pushed aside. Now, they have money; they have power; they have thought; they have influence. It does not have to happen to them.

What if it turns out that people are content with the level of freedom that Windows 2010 provides them? What if some minimal level of the kind of freedom you’re talking about is enough to create satisfaction?

Of course, in the meantime, in that world of 2010, we’ve moved towards being a pay-per-use society for culture. The book publishing industry hasn’t stood still. It’s selling e-books per read. The music industry is trying to sell you songs per listen. What you have in mind is a bargain in which we sort of stay the same as we migrate technologically. When we look at how it really functions—technologically, politically, economically—we find ourselves moving in a world in which we can have many different things, but staying the same is really hard. From the point of view of the copyright industries, the culture manufacturers, the limited term of copyright is unacceptable. What Disney went through to keep the mouse from expiring is just the beginning of that issue.Limited term is not acceptable. The first sale doctrine is not acceptable. Fair use rights are not acceptable. In the world of the electronic, absolutely free, frictionless copy, they need to move more and more towards a controlled environment. The logic of the situation compels them to all or nothing solutions, and I think they’re going to get nothing instead of all.

But they are groping. I don’t think all of this is going to be done in a ham-fisted and thoughtless way. Jack Valenti has to die. You can’t go into the twenty-first century with Jack Valenti as the only face you have, because nineteen-year-olds are not going to accept that. There’s going to have to be a different way to do it. They need somebody as good as Chuck D, and they don’t have that yet. But there will be an attempt, there will be lots of attempts to find a way.

Won’t some kinds of cultural production simply fall by the wayside in a world of free distribution?

Of course, but look, the same is true with respect to pyramids. Without hydraulic despotism and the divine right kingship of the pharaoh, we will underproduce pyramids. Now, we’ve been underproducing pyramids for three thousand years, and pyramids are beautiful but it isn’t hurting us that we don’t make them anymore. Sure, the structure of art and expression is related to the material understructure of society. You don’t have to be a Marxist to think that. In a world of really free stuff, I think there would be a lot fewer Arnold Schwarzenegger movies, but I think $100 million movies don’t represent a particularly good form of free stuff.

Any sort of high initial-capital-cost cultural production would seem hard to justify. Blade Runner probably doesn’t get made either.

Absolutely. On the other hand, we’re going to have a golden age of poetry such as the world has not seen in a thousand years. Even traditional art forms may do very well. The literature for two pianos is due for an enormous revival. Fifteen years from now the dominant form of two pianos literature is going to consist of one live and one dead pianist. The whole ability for us to engage in jamming with Sidney Bechet, for instance, has only begun to be discussed. What Bill Evans did in Conversations With Myself is going to become conversations with everybody. The only problem will be that if I want to jam with Sidney Bechet I can’t, because somebody owns Sidney Bechet’s music. There are ranges of collaboration, new forms of art, new ways of making and delivering everything, including dramatic video, that will come up, and there are art forms whose names we don’t know yet that are going to happen. You meet people who say, “If there weren’t property, then nobody would make the Flintstones.” To that, you have to say, “Well, what do we get on the other side? What’s the name of all those art forms that we can’t have now and that we will have then?” The social accounting is done in a funny way.

Of course technological change changes the forms of art. There’s no question about it. And the social environment too. Americans listen to music today. They don’t make music. That’s a whole profound change in one generation in the history of music in the world. Music was a thing people made; now it’s a thing we hear. I am a non-maker, just a listener to music. I have an enormous privilege, as I see it, to live at the beginning of the digital era, when music from all over the world is available, before it has all been homogenized and paved over.

Necessarily homogenized?

There are a zillion different things that could happen. The next great oud virtuoso may be a fifteen-year-old Vietnamese girl who has never seen an oud and who has never been in the Middle East, but who is listening to one of the great oud virtuosi from the Sudan or from Iraq, and decides to play that thing herself. I can now listen to a choral musician from Senegal playing with a Norwegian vocalist and a mouth harp player. It isn’t necessarily homogenizing, but there are forces for homogeneity doing very well at the moment. It is their activity that we are primarily talking about. They are the people who want to encrypt and to own. Musicians all over the world looking for an audience don’t show as their primary concern that they want to encrypt their music and keep it away from people. Ownership and homogenization have a relationship to one another. They’re not just casually, contextually found in the same places. The goal of reaching the mass audience and getting paid for each and every eardrum is also the goal of homo-genization.

What kind of penetration does free software need to have before competing processes start to organize themselves?

It has it now. Under the skin of the beast, free software is everywhere. The real question is: What’s the difference between the technologically clued-in and the technologically checked-out? The answer is: what they use. How big does the technologically clued-in population have to be before new ways of thinking about politics and economics and society take hold? Quite large. But we’re going there. We’re going to a society which is not this one. We are standing in the middle of a tidal wave and trying to figure out how wet we are around the ankles. It just doesn’t matter very much. One of the many lessons I’ve learned from Richard Stallman over my years of working with him is that I have strategic views, and I would say, “Richard, we need to have this. We need to have that. We need to do this or this to meet the current situation.” And Richard would say, “What needs doing will get done. What people need, what people want, they’ll make.”

That seems to be GNU’s organizing principle.

That’s an important lesson. We will get where we are going when the people who need to be there are around. I don’t know how long that takes. I don’t know exactly what the numbers are. I don’t worry that they won’t show up, and maybe the question “How many?” is really “How do you know they’re all going to show up sooner or later?”

Or the question might be, how do you know there’s not going to simply be a permanent 10%, or whatever percentage, of the deeply technologically literate, and everybody else?

I believe that kids growing up with com­puters are going to want to know how to change them.

I hope that’s true.

But you’ve expressed some doubt about that and that’s the experiment we are conducting. We will find out which of us is right about that in another ten or fifteen years. A lot rides on it. The whole point of free is freedom to change, not low cost. In the world we are moving towards, the primary power distinction, the class line, is between people who know how to change the behavior of computers and those who don’t. Because that kind of knowledge, in particular the ability to interact with complex technological systems to alter their behavior, is power over ordinary daily life in a profound way.

But money is also a real problem. There are billions of people all over the world who need computers and software and some way to connect. This is a major issue of economic resources. How can free software not win? Where’s the money going to come from to buy all those Windows licenses? We are, after all, engaged in a capitalist enterprise on a bad business model. If they want everybody to use it, at a minimum the price has to be zero. At a minimum…I don’t know whether it takes fifteen or twenty years to do Microsoft in, they’re eventually going down. You can’t make inferior stuff and sell it at high prices indefinitely when the good stuff is free. For different users there are different answers to these questions, But an awful lot of people all over the world need software. They are not going to pay $90 for an operating system which doesn’t work but is compatible with all the other non-working operating systems all over the planet. Instead, they’ll produce something else, and it will be free. And then they’ll have an investment in free. Sooner or later, somebody somewhere will begin to recognize that societies pay pretty heavily for Windows too.

We’ll see. We should have this conversation twenty years from now.

Oh, we’ll all be having this conversation constantly..

Eben Moglen is a professor of law at Columbia University and general counsel to the Free Software Foundation.

Jay Worthington is a contributing editor at Cabinet. He is also a founding member of the New York-based non-profit theater company Clubbed Thumb.

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