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Law in the Internet Society
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The Incorruptible Guardian: The Promise and Limitations of Cryptography as a Protector of Freedom-- By DanielShiner “While I pray that public awareness and debate will lead to reform, bear in mind that the policies of men change in time, and even the Constitution is subverted when the appetites of power demand it. In words from history: Let us speak no more of faith in man, but bind him down from mischief by the chains of cryptography.”- Edward SnowdenQuis custodies ipsos custodes?The question of how to protect against predation without allowing the protector to abuse their power has been a fundamental question of political theory since at least the time of the ancient Greeks. However, despite thousands of years of trial and error with differing institutional arrangements aimed at constraining those entrusted with power, this question has no satisfactory answer. The United States Constitution was one of these experimental attempts to constrain power. However, as history has shown, it has often been circumvented in times of crisis, and has failed as a guarantor of the rights enshrined within it. People are corruptible, capable of being pressured, often willing to sell out principle to the prospect of success and status. Institutional arrangements, like those set out in the United States Constitution, may be capable of incentivizing those in power to respect limitations on that power, but they are far from infallible. In the end, the strength of any constitutional limitations relies on the public holding agents of the state accountable when the they violate those limitations.“The Chains of Cryptography”One promising, although limited, solution to the problem of state overreach is the use of cryptography. Instead of passively hoping that their rights are being respected, cryptography allows individuals to actively protect their own privacy and freedom. Tools like PGP and Tor allow anyone to achieve a high level of secrecy and anonymity, shielding their communications and online actions from surveillance. The emergence and availability of strong cryptography to the general public, combined with the growing importance of online activity, has massive implications for balance of power between individuals and large institutions. The most obvious implication is that people are now able to hide the content of their communications from oversight, in addition to their identities, allowing people to communicate freely without fear of retribution. This effectively backstops freedom of speech and the fourth amendment, creating an environment in which even controversial ideas can be discussed, and privacy protected. Allowing for anonymous reading and exploration of the net, eradicating the chilling effect that occurs as a result of government surveillance, is fundamental to maintaining freedom of thought. More controversially, cryptocurrencies like bitcoin, when used in tandem with other tools to protect anonymity, potentially ensure economic privacy. In the same way that untraceable cash transactions have been used to evade taxes and government oversight in the physical world, cryptocurrencies can be used to keep online economic activity private, enabling participation in outlawed economic activity. This is not only a theoretical possibility, but is already being done. There is already a thriving online black market in outlawed goods and services, and this will likely continue to grow for better or worse. The Silk Road, a now defunct online black market using cryptographic tools to hide the identity of its operators and users, ran successfully for multiple years in flagrant violation of laws prohibiting the sale of certain controlled substances. It is estimated that $15 million in transactions were made through Silk Road annually. Despite the almost unlimited power and resources available to the United States government, they were almost entirely helpless to stop the transactions occurring through the marketplace. If it were not for mistakes made by the alleged founder of the marketplace, eventually exposing his identity to law enforcement, the marketplace could have remained operational. Although it was eventually shut down, multiple copycats have emerged to take its place. Also controversial, cryptocurrencies potentially allow for economic support of political activists and unpopular causes without fear of retribution. For example, in 2010, numerous financial institutions began blocking donations to WikiLeaks, reducing their revenue by 95%. WikiLeaks? quickly began allowing potential patrons to donate bitcoin anonymously, bypassing the barriers erected by financial intermediaries.Limitations and Dangers"If we want freedom and privacy, we must persuade others that these are worth having. There are no shortcuts. Withdrawing into technology is like pulling the blankets over your head. It feels good for a while, until reality catches up.” –Hal Finney, Cypher Punk Mailing List As powerful as cryptography may be for the protection of certain freedoms, is not a panacea. First, despite the fact that the relative importance of online communications and activity is rising, cryptography can only ensure secrecy and anonymity. It cannot stop abuses of power in areas unrelated to communications and information. Cryptography can hide the identity of an activist, but it cannot stop a predatory state from imprisoning or torturing that activist. However, the more human activity occurs online, the more important cryptography will become. Second, cryptography itself can and has been outlawed in the past, though this is increasingly difficult to do considering that the government itself, as well as powerful private institutions rely on cryptography to function. Third, strong crypto is difficult to use. While great progress has been made since the 1980’s in making it accessible to everyone, it is still not convenient for those who are not tech savvy, and it is easy to make mistakes. FreedomBox, among other projects, are aiming to solve this issue, making it easier for the average person to use cryptographic tools correctly in order to ensure their privacy. Finally, cryptography can be abused. Secrecy and anonymity protect the privacy of the innocent, but can also be used just as easily to shield destructive and predatory activity from oversight. For example, Tor has already been used to distribute and share child pornography. Despite these limitations, and potential abuses, the promise of cryptography as a tool to protect freedom is high.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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