When the NSA can no longer decrypt encrypted documents, we will not usher in a new era of liberty or freedom. What we will learn is that our freedom has a dangerous limit. We will wake up to the truth that our freedom is found within the laws of a polity or a community. The area outside a state’s control is literally lawless. As Aristotle explained, a man who is outside the city (the laws) is either a beast or a god. When someone lives beyond the laws or justice, the freedom of those within the community is under threat. Such a lawless area, beyond the community’s laws, is a state of nature. As Hobbes and other political philosophers explained, the modern political state was created to escape the state of nature because life in it was solitary, poore, nasty, brutish, and short. The same could be said for the internet.
Beyond the law, beyond justice
When the internet creates such a place beyond the state’s control through laws and justice, because it lies beyond the state’s power, it can be considered an electronic state of nature. The state protects us, and itself, to ensure our freedom within the rule of law. In many areas of the world, the state can be considered a threat, but only to the extent that it is not limited by the law. This is not the case in the West because the liberal democratic systems keep the state limited rather than absolute. The state must justify its democratic mandate, the consent of the people, before the law and act within the social contract that created it. However, the liberal democratic state is threatened by the internet. The threat is not because it brings “transparency” or “openness”. Instead, it is a threat because it creates an area beyond the state’s control that has a direct effect on the state’s ability to operate.
The internet creates a twofold threat. First it creates an alternative approach to memory, which challenges the state’s monopoly on memory. The second part is that its approach to memory enables a new way to organise and distribute information. On its own, such a change brings benefits, which citizens and the state want. However, the problem we face is such a technical change comes with political consequences. The political consequences is not so much that winners or losers are made, but rather that it threatens to undermine the liberal democratic promise. Within the liberal democratic process, we are all equal before the law. We may be naturally unequal, but we are politically equal before the law. However, those with the technological capacity to live beyond the law are not equal before the law. They are above or beyond the law.
Our freedom stops where the law stops
Where the rule of law stops, so does our freedom. Our freedom does not begin where the law stops. The rule of law creates our freedom because it sets the limit by which neither the state nor other men can exceed without democratic mandate. When Edward Snowden acted, he believed it was for a higher purpose. He believed he had to break the law to defend it. Yet, he has not defended the law. Instead, his lawlessness revealed the technological threat to the rule of law that the NSA struggles to defend against. The internet is a not a benign democratic world of freedom. It is a violent, nasty, realm in which trolls emerge and the technologically powerful shut down the weak by hacking their systems or crashing their site. The political powerful can label the critical or quarrelsome as trolls or use their “followers” to silence them. We may enjoy the webs’ convenience, but it has a Faustian bargain because it erodes the state’s democratic mandate by showing that we are not equal before the law. The state cannot bring justice to those beyond the law. If it can no longer deliver justice or protect itself, our social contract then becomes void. An electronic state of nature will return us to a physical state of nature.
We may like to think that the geeks will inherit the world and it will be benign. We want to believe the ethos of the web will somehow be different from what we had previously. Such a view is naïve about politics, the friend/ foe distinction, and human nature. Technology may have changed, but human nature remains unchanged. Man’s restless desire of power after power and the need for more power to live well, remains.
The strong do as they will the weak do as they must
In this electronic state of nature, we return to a world that Thucydides warned about over 2500 years ago: “The strong do as they will; the weak do as they must and only between equals can there be justice.” As the internet is not based on democratic principles, it will not give political or even digital equality. At best, the internet only magnifies the power of those who are already power. At the worst, it changes the face of power it shifts from the manufacturing, industrial, or the financial, to the technological. The technologically powerful may proclaim their “hacker” ethos or their allegiance to the “cluetrain” manifesto, yet they have not escaped human nature. Power corrupts. They want to be powerful and they want power to do as they will not as they must. Privacy only offers a convenient shield for their desire for power. The state and the current system, hinders and inhibits their desires. Liberal democracies usually find a channel for that desire for power into the common good either through fame, glory or by political ambition serving the public good.
We killed God to be free, now we will kill the state for privacy
Those who seek to destroy the “surveillance state” claim they will set us free. (Man is born free but everywhere he is in digital chains). What is unasked or overlooked is whether to destroy the “surveillance state” the state has to be destroyed. Over 100 years ago, we killed God to have our freedom. Now we must kill the state to have our privacy. If the surveillance state is dismantled how can the state fulfil its basic purpose to defend its citizens? How does it fulfil the constitutional promise to protect against threats foreign and domestic? If the state cannot protect its citizens, it loses its democratic legitimacy. If it cannot decrypt the messages to protect its citizens from those threaten them, who will have the capacity to do that work? We assume on no evidence except the demands of “privacy” that the “surveillance state” is dangerous? Does this mean the government is dangerous by extension? Have we failed to appreciate or understand the purpose for which governments are founded? Moreover, we fail to understand the relationship between citizen and state and what the state must do to fulfil its part of the social contract. If we destroy the NSA and allow someone else to occupy the technological high ground, who will defend the weak? We elected a government to protect us. Are those who seek to destroy the system that defends us democratically motivated? Privacy is not an end in itself. It is a means to an end, a political end. What is the political end if it does not secure the public good? If privacy requires the state to be destroyed, how does that serve the public good?
If we dismantle the surveillance state will evil disappear?
We are told the “surveillance state” is dangerous and a threat, yet we have not been given any evidence that freedoms have been damaged by the NSA. There has been no evidence that the NSA has tried to use the information for blackmail, to alter elections, or to undermine the democratic process. It has acted according to a democratic mandate translated through legitimate government acting according to its constitutional principles. In that regard, the state has been limited by the law. Encryption is neither about privacy nor the freedom of conscience, which was the basis by which Lock sought to limit the state. Instead it is about power. Who controls the internet controls the world. If the internet is beyond control and the technology powerful can act with impunity, then we are all in danger because we have an electronic state of nature. Yet ware told we must fear the surveillance state and dismantle it because it “invades our privacy”. How it invades our privacy is not clear since our digital lives are not the same as our physical lives. If we do away with the NSA and create encryption that it cannot break, then what? Are we free? What are we free to do we cannot already do in a liberal permissive state?
When we no longer have laws, who will chain the beast that is man?
People may see the internet’s rise and the demise of the NSA and the so called surveillance state as a good thing. Let us consider what this would mean in practice. What would happen if there were no police on the street tomorrow? For a time people would still obey the law, because 90 % of the people do not need the law to behave. The other 10% no amount of law will work. It is the 10% that the state and the law protect us from. When people can live beyond the law and the state, there is no justice because the rule of law, equality before the law, vanishes. Once the surveillance state is gone, will the threats stop, will human nature stop? No. Technology does not and cannot defeat technology. What we face is a political problem, not a technological problem. Yet, the technological hysteria over the surveillance state has clouded the political question. We do not have any greater clarity over the relationship of the citizen and the state. In the end, it has only confused and distorted the democratic contract, where democratic due process is described as conspiracy and sensationalism shouts down sober reasoning about the purpose of government.
 “Whatsoever therefore is consequent to a time of Warre, where every man is Enemy to every man; the same is consequent to the time, wherein men live without other security, than what their own strength, and their own invention shall furnish them withall. In such condition, there is no place for Industry; because the fruit thereof is uncertain; and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short.”
 So that in the first place I put for a general inclination of all mankind a perpetual and restless desire of power after power, that ceaseth only in death. And the cause of this is not always that a man hopes for a more intensive delight than he has already attained to, or that he cannot be content with a moderate power; but because he cannot assure the power and means to live well which he hath present, without the acquisition of more.
 One commentator said that engineers should dismantle the surveillance state from the inside. It reminds me of scientists who upon realizing the dreadful power of nuclear weapons wanted to somehow un-invent them. We may as well try to dismantle the modern world.
- NSA decryption revelations ‘provide roadmap’ to adversaries, US warns (theguardian.com)
- The US government has betrayed the internet. We need to take it back (theguardian.com)
- NSA and GCHQ unlock privacy and security on the internet (theguardian.com)
- ‘Surveillance State’ Legislation Would Bar Some NSA Decryption (truthdig.com)
- In light of the NSA, how to think about encryption (zdnet.com)