There’s an iconic scene in the movie Spinal Tap where lead guitarist Nigel Tufnel, reacting to a production error that has rendered the band’s latest record album an unadorned black square, exclaims, “There’s something about this that’s so black, it’s like, how much more black could this be? And the answer is none, none more black.” Last Wednesday’s op-ed in the New York Times by self-styled “digital ethics” adviser and privacy-skeptic Reid Blackman evokes a similar response: How much more wrong could this piece be? The answer is none, none more wrong.
Blackman’s thesis—that while the ability to speak privately “can be beneficial,” we should condemn technologies that wholly preclude government eavesdropping—could only resonate in a socio-political environment of complacency and overconfidence, where the blood-spattered streets of Tehran, Hong Kong, and Moscow are as much of an abstraction as our own government’s serial predations against slavery abolitionists, civil-rights leaders, whistleblowers, journalists, and countless others. Contra Blackman, we should celebrate the advent of technologies and applications that enable people to speak to one another freely, secure in the knowledge that what they choose to say privately cannot be heard by others, no matter how much various government actors may wish to discourage, punish, prevent, tax, or otherwise exploit those communications. The ability to communicate privately is a paramount value in any liberal society because without it those in positions of power will inevitably—inevitably—claim a monopoly on truth and do everything in their power to suppress dissent.
Blackman’s argument, such as it is, runs like this: Yes, privacy is good, and sometimes it is worth protecting the ability of two parties to communicate privately and securely, such as journalists with (certain?) confidential sources. But because secure communications can facilitate the misdeeds of such bad actors as terrorists, insurrectionists, and child-abusers, it is “morally dangerous” to elevate the value of privacy “above all.” Instead, we should have greater faith in “good governance” and confidence that if we ensure government actors are able to intercept communications at will, they will exercise that power, if not perfectly, then certainly in a way that does more good than harm.
Not surprisingly, the Founders of this country—whose successful defiance of British tyranny depended significantly on secure communications (“One if by land, two if by sea!”)—embraced a radically different view of government and categorically rejected the reductive utilitarianism of Blackman’s argument for a panoptic state.
Thus, the First Amendment states unequivocally that Congress shall make no law “abridging the freedom of speech.” The ability to speak freely necessarily entails the ability to speak securely, and therefore any law requiring that all communications (or subset of communications, such as email, text messages, or chat apps) be accessible to the government upon demand would plainly “abridge” the freedom of speech, which the Constitution expressly forbids.
Moreover, our history is replete with examples of governments seeking to perpetuate monstrous institutions such as slavery and Jim Crow by ferreting out dissenters, infiltrating their associations, and above all preventing the spread of destabilizing ideas by making it dangerous to speak them out loud.
The federal government’s obsession with Americans’ financial activities and information may not be as nakedly tyrannical as slavery or Jim Crow, but it is potentially just as dangerous to Americans’ rights. Thus, the Bank Secrecy Act of 1970 ushered in record-keeping and reporting requirements for financial firms that culminated in warrantless access to Americans’ financial transactions. The federal government has increasingly weaponized the financial system, and countless federal officials—including members of Congress, their staffs, and agency employees—approach policy much like Blackman. Rather than treat privacy as the baseline, they treat it as something that governments should define and grant to certain people. Blackman is concerned that Signal doesn’t really give us “more freedom,” but that’s not the point. The point of a tool like Signal is to protect our “unalienable rights,” particularly to privacy and freedom of expression.
As George Santayana famously said, “Those who cannot remember the past are condemned to repeat it.” The history of government surveillance is an ugly one, replete with false assurances, broken promises, and martyrs who spoke truth to power at the cost of their lives. We can honor those sacrifices by avoiding the very mistakes that occasioned them.