MII. Taking the First Generation Seriously

Lawrence Lessig published his book Code in 1999, expressing there both skepticism about the faith of technophilic market enthusiasts that cyberspatial transactions would be immune to government regulation, and perplexity at their monomaniacal attention to government regulation in particular as the primary or even sole source of the kinds of interference that might pose trouble for them.

By the time he published his second book, The Future of Ideas just two years later in 2001 the "irrational exuberance" of the so-called new digital economy that had underwritten so much of the triumphalism of market libertarian theory had largely evaporated (for the moment). Corporations claiming special vulnerability to digital piracy had managed to so extend the copyright protections they enjoyed that they were threatening longstanding traditions of fair use and creative expression. Meanwhile, the technical demands of broadband access threatened the end-to-end principle that had defined the architectures and much of the ethos of online networking. All the while, deliriously proliferating viruses and unsolicited torrents of spam were measling over the once pristine prairie of the electronic frontier with brothels and billboards.

But needless to say, things appeared quite different just a decade ago. In an address delivered in 1996, Dorothy Denning introduced her audience to “the phrase crypto anarchy,” which Cypherpunks like Tim May had “coined to suggest the impending arrival of a Brave New World in which governments, as we know them, have crumbled, disappeared, and been replaced by virtual communities of individuals doing as they wish without interference.” Specifically, she worried, it was the development of powerful and ubiquitous encryption technologies, and especially a technique called public key encryption, that would be the trigger for this impending arrival of awful lawlessness, hence the name crypto anarchy.

In the next section I will explore at greater length some of the assumptions brought to light in Denning’s pithy early formulations; namely, what it can mean to propose that such a radical transformation of society might be all at once inevitable, impending, and implementable simply by means of the adoption of new technologies, and whether or not many would actually find such an outcome desirable in the first place. Later still, I will explore further the key connection Denning highlights in suggesting that for the Cypherpunks the technological facilitation of secrecy would seem especially and uniquely to bolster a particular conception of agency, figured here as a matter of the discretionary, of “individuals doing what they wish.” For now, I will just note that in this formulation it is “interference” in particular (as opposed to, say, incapacity, distraction, or any number of other things) that is faulted for the frustration of this longed-for agency, and that the source of interference is described primarily or even exclusively as simply, governments.

To an important extent, this anti-governmental ire was simply provoked by the fact that the same government that had subsidized the creation and maintenance of the internet throughout its short life, had otherwise apparently largely failed to notice the extraordinarily diverse, stunningly inventive, and exponentially growing community of its active users –- until a handful of security agencies and elected representatives in the early 1990s seemed quite suddenly to perceive this community and many of their activities as a profound and looming threat. Concerns about the proliferation of pornography online, hateful and otherwise “offensive” speech there, about the unlawful digital reproduction and circulation of copyrighted materials, and about the impact of encryption techniques on law-enforcement inspired a series of legal and technical initiatives that seemed both capricious and clumsy to much of the online community that had coalesced in an era of benign governmental neglect. Representative and particularly reviled among these initiatives were the Communications-Assisted Law Enforcement Act (CALEA), which passed in 1995, and the Communications Decency Act, a diminished version of which passed in 1998 as the Online Child Protection Act. CALEA, together with the so-called “Clipper Chip” initiative sought to ensure that governments would retain the capacity to eavesdrop and otherwise access online communications, while the Communications Decency Act proposed to impose stringent and censorious standards that would limit online expression in unprecedented ways.

As David Brin wrote in 1997, in a piece that was already elegiac in tone despite the fact that the “Crypto Wars” were then still well underway, these Acts and initiatives “faded from our agenda as courts overruled parts of [them], other portions were superseded in legislation, and large fractions proved impotent or unenforceable in the face of ever-changing technology.” Resistance to these initiatives was nevertheless a profoundly politicizing (and in some respects constitutive) event for many online communities, and for many “first generation” cyberspatial privacy advocates this resistance took on a curious but characteristic kind of anti-governmental ferocity that was deeper and more sweeping than comparable struggles for civil liberty or reform initiatives usually seem to inspire.

Attending a conference on cryptography sponsored by Apple Computer in 1996, Paulina Barsook observed with a certain perplexity what seemed like a sweeping anti-governmental fervor in many of its attendees: “Listening to presentations in one of the absolutely featureless auditoriums on Apple’s… corporate campus, I felt not so different from when I used to hang around the fringes of the Weatherpeople in the late ’60s.” She goes on to amplify that, “[t]hirty years after the time when I used to listen in on discussions of what used to be called the student protest movement, I was observing the same kind of righteous rage, familiar to any watcher of techno-libertarians, at the [so-called] stupid and evil government.”

On the very first page of his book Code, Lawrence Lessig describes as its inaugural inspiration his own perplexed reaction to comparable attitudes and assumptions expressed in a couple of speeches he discovered in an online archive. They had been delivered originally three years before he had stumbled upon them himself, at the annual “Computers, Freedom, and Privacy” conference in 1996 (at roughly the same time that Denning was delivering over in Australia the address I mentioned a moment ago and Borsook was attending that Apple cryptography conference).

In one of the speeches, writes Lessig, the author spoke “about ‘ubiquitous law enforcement,’ made possible by ‘fine-grained distributed systems’; through computer chips linked by the Net to every part of social life.” This architecture was already under construction at the time, Lessig points out: the author was talking about nothing more than the Internet. “As this network of control became woven into every part of social life, it would be just a matter of time” Lessig continued to summarize the author’s argument, “before the government claimed its fair share of control. Each new generation of code would increase the power of government. The future would be a world of perfect regulation, and the architecture of distributed computing -– the Internet and its attachments –- would make that perfection possible.”

The author of this extraordinarily nervous anti-governmental tract? Vernor Vinge.

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