MVI. P2P, Not Anarchy

In an interesting recent essay, portentiously entitled “The RIAA [Recording Industry Association of America] Succeeds Where the Cypherpunks Failed,” Clay Shirky has suggested that popular but illegal file-sharing practices may breathe new life into the Cypherpunks’ conspicuously stalled revolution.

“Even after the death of [the] Clipper [Chip] and [Philip Zimmermann’s] launch of PGP [the freely-available “Pretty Good Privacy” public-key encryption scheme about which I will say more in the next section], the Government discovered that for the most part, users didn’t want to encrypt their communications.” Shirky goes on to point out, that “[t]hough business users encrypt sensitive data to hide it from one another, the use of encryption to hide private communications from the Government has been limited mainly to techno-libertarians and a small criminal class.”

Shirky draws from these facts a couple of intriguing conclusions. First, he asserts that “[t]he most effective barrier to the spread of encryption has turned out to be not control but apathy.” And, then, second, he proposes that the reason the average user is apathetic about encryption is because “the average user has little to hide, and so hides little.”

There are a number of important, if obvious, objections to these formulations. I would object, for one thing, to the apparent insinuation that routine encryption would function primarily to hide wrong-doing (the expression “I have nothing to hide” is typically taken as synonymous with “I have done nothing wrong”), when clearly encrypted transactions are just as likely to protect people from innocent embarrassments as from criminal prosecutions. And I would also object that it remains an open question just how effective legal and technical controls on communications might turn out to be, whatever the historical record has been on this question up to now. Just because internet users have always (or usually) managed so far to circumvent attempts to limit privacy and free expression online, mostly through technical means, shouldn’t inspire overconfidence that this will always be the case.

But my deeper objection to Shirky’s assertion is that I think it is wrong to assume that individuals are simply apathetic about the prospect of facilitating secrecy through routine encryption. When Shirky goes on to assert that “[t]he Cypherpunk fantasy of a culture that routinely hides both legal and illegal activities from the state has been defeated by a giant distributed veto,” I think the word “veto” here aptly denotes a more active general repudiation of the Cypherpunk vision than his earlier suggestions about apathy imply.

I think that there is in fact a widespread and constantly renewed affirmation of the value of a certain level of personal exposure over secrecy in online communications (and in public life more generally), and that it is this embrace of “openness” that constitutes the more abiding hurdle to the kind of exhaustive adoption of encryption on which advocates for crypto-anarchy would have to rely for the implementation of their vision of social transformation. There is no question that individuals have consistently resisted the imposition of enforced regimes of openness on terms that conspicuously favor the specific interests of officials and functionaries of governments or, for that matter, corporations over their own. Also, the widespread use of online pseudonyms is an ongoing testament to the value of obscurity in the expression of unpopular or untested ideas.

But what seems to me by far more conspicuous and definitive of the internet, such as it is, is scarcely its facilitation of anonymous or pseudonymous transactions, however crucial that function may be. It is instead the dizzying wealth of signed, self-published, free content available online, all of it vying for attention, all of it soliciting annotation, appropriation, citation, and dissent.

It is this apparently inexhaustible wealth of creative content that continually re-invigorates the internet and the web, and it testifies to the fact that whatever the vulnerability and costs of exposure, these are mostly imagined to be amply repaid by the public pleasures of attention, connection, rivalry, collaboration, discourse, and exchange. It is easy to misinterpret the significance of the many vicissitudes in the ongoing technical and legal development of the internet whenever we forget that both secrecy and openness are conspicuous values in an overwhelming variety of currently constituted online cultures. And it is easy in turn to disavow the significance of openness, in particular, whenever we forget that openness ineradicably implies some level of exposure, some acceptance of vulnerability, some loss of control.

“Napster” is the name of a file-sharing service that allowed its users to log onto servers through which they exchanged .mp3 files stored on the computers of other users so long as they remained logged onto the system themselves. At the height of its popularity many millions of users were logging onto Napster and trading files in this way. The RIAA sued Napster on behalf of its members, because in their view the service facilitated copyright infringement and piracy on an unprecedented scale. Although the RIAA succeeded in its efforts to shut down Napster for a time, individuals who had been participating in file-sharing practices there for the most part simply shifted from Napster to the use of one of many similar but alternative available systems. Because of this, the RIAA has subsequently also shifted its attention, and has started to sue individual file-sharers directly. This, in turn, has motivated many file-sharers to adopt file-sharing applications that use encryption to ensure their anonymity and insulate them from prosecution, precisely as the Cypherpunks long anticipated.

But is there anything in this state of affairs that suggests the arrival of Tim May’s “crypto-anarchy” may be more immanent? Are we to be haunted once more by its more proximate specter? Surely not. As Shirky puts the point himself, “the broadening adoption of encryption is not because users have become libertarians, but because they have become criminals; to a first approximation, every PC owner under the age of 35 is now a felon.” He goes on to illustrate the point with the obvious analogy to Prohibition. “By making it unconstitutional for an adult to have a drink in their own home, Prohibition created a cat and mouse game between law enforcement and millions of citizens engaged in an activity that was illegal but popular.”

Of course, many individuals who participate in strictly illegal but nonetheless widely popular versions of file-sharing practices do so with the conviction that these practices should not be illegal at all and with the reasonable expectation that eventually (as was likewise the case with the adult consumption of alcohol during its brief Prohibition) they will become legal.

There is little reason to think that the RIAA’s own interested interpretation of file-sharing practices by recourse to the metaphor of the theft of a CD from a music store, say, will necessarily prevail over the metaphor of music enthusiasts gathering together in a public space to listen to music together. Nor is there much reason, frankly, to accept hyperbolic claims that file-sharing practices will destroy the recording industry altogether. It seems more likely that the industry would accommodate these practices as a kind of promotion or advertising of their product over the longer-term. And, of course, there is even less reason to believe that the destruction of the recording industry altogether would have much of an impact in any case on the continued creation, circulation, and enjoyment of music which, after all, did not come into existence as a consequence of the efforts of either the recording industry or its RIAA in the first place.

Shirky concludes that the most significant longer-term consequence of the music industry’s quixotic effort to police file-sharing practices is precisely “the long-predicted and oft-delayed spread of encryption” to which he appends as a concluding thesis a re-statement of his essay’s title: “The RIAA is succeeding where the Cypherpunks failed.”

But “success,” remember, for the Cypherpunks requires nothing short of the arrival of crypto-anarchy, and the routine recourse to encryption techniques to facilitate currently illegal file-sharing practices looks to me no more like a step toward the arrival of crypto-anarchy than does the similarly routine recourse to encryption to facilitate the electronic funds transfers that make online commerce possible, regularly deposit paychecks and tax refunds into savings accounts, or pay bills via automatic payment services.

Neither does it seem right to suggest that crypto-anarchy is a state into which we might be ineluctably drifting, as perhaps Shirky means to imply when he writes “[b]ecause encryption is becoming something that must run in the background, there is now an incentive to make its adoption as easy and transparent to the user as possible.” And so, in consequence of this, “[i]t’s too early to say how widely casual encryption use will spread.”

But just what projected state of affairs is supposed to be conjured up by the use of the word “widely” here? Clearly, it is not the least bit too early to predict that the routine recourse to encryption can be well nigh ubiquitous, and indeed already is. But certainly neither is there any reason to think the value of technologically facilitated secrecy will ever sufficiently trump the value of technologically facilitated openness in a way that would provoke a transformation of society in the image of crypto-anarchy and, hence, allow the Cypherpunks at long last their longed-for “success” and secession.

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