MXI. From Privation to Discretion

The techno-libertarian discourse of secrecy condenses what would otherwise be separate and scarcely compatible efforts to shore up the efficaciousness and dignity of threateningly needy, fallible, vulnerable, lonely individuals together into a single project of reassurance I will describe as the register of the discretionary. To be discreet is to exhibit discernment, judiciousness, and a capacity to hold one’s tongue, while to be discrete is to be separate, integrated, distinct, and whole. And at the soul of discretion in especially the libertarian formulations that preoccupy here I find an endlessly provocative association of secrecy, decision, and individualization.

The Oxford English Dictionary defines discretion as it relates to persons as “showing discernment or judgment in the guidance of one’s own speech and action; judicious, prudent, circumspect, cautious,” and then goes on to elaborate this as a matter especially (emphasis in the original) of secrecy, of one who “can be silent when speech would be inconvenient.” The discretionary as an “act of discerning or judging… decision [my emphasis],” then readily gives way to the conjuration or substantiation of a succession of alleged traits or attainments, first, a “faculty of discerning,” then a “liberty or power of deciding, or of acting according to one’s own judgment or as one sees fit,” even, incredibly, “uncontrolled power of disposal,” and then, finally, the “power of a court of justice, or person acting in a judicial capacity, to decide… as to the punishment to be awarded or remedy to be applied.”

Discretion, discreteness, and secrecy all resonate with the implication of separation, demarcation, and seclusion; from the Latin discretionem, meaning “separation, distinction, and [in] later [usage] discernment,” and secernere, “to separate, divide off.” In this, the discretionary reenacts the gesture of the discourse of privacy more generally, in which (de)privation is figured as inducing positive, productive effects, and for which withdrawal is figured more as invigoration than as diminishment.

With these associations in mind, I want to turn my attention to yet another manifesto, this one aptly titled “A Cypherpunk’s Manifesto.” This brief piece was written by Eric Hughes, was widely circulated online in 1993, and so was book-ended by the publications of the more or less definitive versions of Tim May’s “Crypto Anarchist Manifesto” in 1992 and his essay “Crypto Anarchy and Virtual Communities” in 1994. Taken together, these three texts capture perfectly the flavor of the culture of cypherpunk advocacy at the height of its exuberance (whether irrational or not), and manage as well to specify the reach and relations of their chief claims and categories in a fairly consistently systematic way. It was just a couple of months after the first appearance of Hughes’ manifesto online in March 1993 that he appeared with Tim May (and a third Cypherpunk “founding father,” John Gilmore), bemasked and wrapped in an enormous American Flag on the infamous cover of the second issue of Wired Magazine.

Hughes’ essay begins with the claim that “[p]rivacy is necessary for an open society in the electronic age,” followed immediately by the arresting added qualification that “[p]rivacy is not secrecy.” Hughes later adds to these the third, crucial claim, that “[c]ypherpunks deplore regulations on cryptography, for encryption is fundamentally a private act.” To my mind, the chief conceptual innovation of the cypherpunk viewpoint appears in its clearest and most schematic form in this short piece by Hughes. And that innovation consists in the way these categories of the “secret” and the “open” stand in a relation to “privacy” (in its specifically libertarian-cypherpunk construal) that would supplement, or indeed largely displace, the conventional relation and distinction of the private and the public.

I will argue that this displacement of the standard public/private distinction functions in the service of a project to defend and in fact radically augment an insistently individualist conception of private agency considered predominately as a matter of personal control, a conception of agency which would seem to eliminate almost any recognizably public dimension at all.

Hughes defines privacy in this piece as “the power to selectively reveal oneself to the world,” and this would appear to be a fairly straightforward formulation of what I have described as an informational construal of privacy. The desire for privacy, on this construal, names the desire for a reasonable measure of control (or registers a perceived or feared loss of control) over the disclosure and circulation of personal information, especially information that is potentially harmful in some way, embarrassing, or unfairly damaging to one’s reputation.

Given this focus, Hughes’s initial claim that “[p]rivacy is necessary for an open society,” likewise seems genially uncontroversial. Relentless, unmotivated public scrutiny over all the details of one’s personal life (a state of affairs which has only recently become technically possible as more than an abstract ideal for any non-negligible portion of the population) would seem unduly oppressive and arbitrary to nearly anyone. Democratic societies may enshrine and encourage the value of free expression above most other values, and such societies may demand extraordinary levels of transparency over the conduct of individuals acting on behalf of significant or authoritative institutions to ensure that their citizens maintain the sense of having a real say in the public decisions that affect their lives. But even in such societies it will be commonplace to strive to strike a balance between the demands of these public values and demands to preserve a measure of individual privacy for their citizens, especially in cases for which personal conduct imposes little risk of public harms or social costs.

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