While the cypherpunks were sparring throughout the 1990s in the rough discourse of their mailing list, in the more decorous environs of Yale and Harvard universities, law professor Larry Lessig was tuning in. His contribution to the development of hacker ideas is another antecedent that needs to be described before coming to the WikiLeaks and Snowden stories. Again, insiders know it well, but for ordinary computer users, Lessig’s core idea might read like a blinding insight.
“Code,” Lessig wrote, “is law.”
Let me unpack that because it is a central premise of this book.
A guy who knew how to code (as a law clerk for the US Supreme Court, he improved their clunky printer system by hacking around its software), Lessig was skeptical of the net euphoria that was seizing the popular imagination in the 1990s. Utopian statements—like John Gilmore’s widely accepted claim that “the Internet sees censorship as damage and routes around it”—were mildly irritating to him.1 He thought this was wishful thinking. Code, he was coming to believe, could implement censorship and surveillance as well as forestall them: there was no magic place called cyberspace, only the cyberspace that people built.
In 1999, Lessig published Code and Other Laws of Cyberspace,2 an important academic book that was in many ways a remix and development of the ideas of Richard Stallman and the cypherpunks. Recall that Richard Stallman advocated that code should be transparent and in the control of users (in the ways articulated by the “four freedoms”). And in “The Cyphernomicon” of 1994, Tim May said cypherpunks believed
* that … [individual] rights may need to be secured through_technology_rather than through law
* that the power of technology often creates new political realities.
In Code and Other Laws of Cyberspace and the article “Code Is Law,”3 Lessig argued that computer code is the de facto regulator of cyberspace. Code, he said, “sets the terms on which life in cyberspace is experienced.” Code determines how easy it is to protect privacy, to censor speech, or to access information: “In a host of ways that one cannot begin to see unless one begins to understand the nature of this code, the code of cyberspace regulates.”4
But whereas May, the libertarian, had “very little faith in democracy,”5 Lessig, the constitutional lawyer, was clearly a democrat6 and concerned about preserving democratic values. Lessig warned that
as this code changes, the character of cyberspace will change as well. Cyberspace will change from a place that protects anonymity, free speech, and individual control, to a place that makes anonymity harder, speech less free, and individual control the province of individual experts only. … Unless we understand how cyberspace can embed, or displace, values from our constitutional tradition, we will lose control over those values. The law in cyberspace—code—will displace them.7
As I understand it, Lessig’s statement that “Code is law” means much more than “Code is like legislation.” The words of statutes and constitutions are not sufficient in themselves to protect society’s values. “Code is law” essentially means that code can supply the force of law. It can supply defined rights and duties (in the way that legislation does, say, in setting out what personal information can be accessed by whom and when and for what reason); it can supply the social norms that shape everyone’s expectations of how to behave or what to demand from the market or from government; and it can supply the physical coercion to enforce rights and duties in case anyone does not want to comply (that is, the code is self-executing, and a digital tool that is widely adopted by users is difficult for governments and the corporate sector to shut down). Traditional legislation and constitutions are not irrelevant to the circumstances in which “code becomes law,” but they play a secondary or supportive role.
To summarize, one might say that Lessig foresaw that code more than law would determine what kind of societies we live in and whether they end up resembling democracies at all. The rapid, widespread adoption of cryptography for civilian use that took place during the cryptowars—overcoming legislation that would prevent it—was one manifestation of the premise.
While Lessig was disseminating the idea that “Code is law” in academic circles, coders were busy working on another tool that would demonstrate it—the Onion Router, or Tor. When Alice sends Bob a message encrypted with public key encryption, the content is encrypted, and the keys are kept safe, but the fact that Alice is sending Bob a message, its timing, and information about Alice and Bob’s respective locations are not safe. Metadata can expose and endanger Alice and Bob even more than the substance of what they are sending to each other. The Onion Router, or Tor, conceived of by Naval Research Laboratory researcher Paul Syverson and coded by two young MIT hacker types, was funded in 2001 through a three-year grant from the US Navy and the Defense Advanced Research Projects Agency (DARPA). It built out Chaum’s idea of mix networks to solve the security problem of metadata in the real world and prove “Code is law” as it steadily became one of the most widely used “hacker” tools after Phil Zimmermann’s PGP. It set the norms for law enforcement’s ability to access information about users’ communications before legislators had a chance to.
Roger Dingledine and Nick Mathewson had lived together as students in MIT’s Senior House, a hacker microculture that in its day embraced the motto “Sport death” and a credo of anarchism, drugs, leather jackets, and polyamorous sex.8 Like Julian Assange, Dingledine and Mathewson had “grown up” reading the cypherpunk mailing list and subscribed to the maxim “Cypherpunks write code.”
Tor combined the idea of public key encryption with mix networks. The goal of Tor was to hide the metadata of messages—the identity and location of their senders and receivers, their routing, and their timing—by sending messages in random routes through the nodes of the internet. A message was sent into the Tor network with the metadata of its routing encrypted in multiple layers, like the sealed envelopes in Eric Hughes’s parlor game or the multiple layers of an onion.
Rather than a crowd of people exchanging envelopes, however, Tor was more like sending a message down a rabbit hole. The sender sent the message down into the hole, and its content was wrapped in layers of encrypted addresses chosen randomly. These were addresses of people who volunteered to make their routers “nodes” in the Tor network. Each receiving node, or remailer, had only the key necessary to decrypt the next address. And when the remailer sent the message on, it would wipe out the metadata of the previous sender, as if wiping out the rabbit’s tracks. No remailers knew where they were in the chain of remailers. Finally, the message would pop up from the last random remailer—say, a rabbit hole in Serbia—and be sent on to its final destination.
Spies watching the transaction could see the message enter the warren of tunnels but would not know where in the world the “exit” rabbit hole would be. If they were watching only a few entrance holes and the one exit hole, they might be able to deduce the origin of a message by the timing of its exit. But if messages were held for random periods of time to obscure timing and the number of paths and possible exit holes was large, it would be much, much harder to deduce the origin of messages. A spy watching the rabbit hole in Serbia would see messages exiting but would not know where they originated from. And the beauty of Tor was that what could be done to obscure the origin of messages could also be done to obscure the origin of browser requests, leaks, and the location of hidden services.
Julian Assange took two ideas from his apprenticeship on the cypherpunk mailing list—John Young’s Cryptome and Chaum’s mix networks—and put them together with the progress made to that time on Tor to develop his own leaking system, WikiLeaks. It provided a spectacular demonstration of Larry Lessig’s thesis that “Code is law.”
In two blog essays he wrote not long before the launch of WikiLeaks, Assange explained his theory of leaking—his own contribution to the genealogy of hacker ideas. Leaking, he posited, was emancipatory not only because it exposed secrets to public scrutiny and resistance but also because it strangled the communication between the powerful that was necessary to effect their plans.
Assange started his first essay9 with a quote from Theodore Roosevelt, the American president known for his “trust busting” in the early years of the twentieth century: “Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people. To destroy this invisible government, to befoul this unholy alliance between corrupt business and corrupt politics is the first task of statesmanship.”
The thrust of Assange’s theory was that in the current age, political elites and big business were again collaborating to deceive and dominate populations: “Schemes are concealed by successful authoritarian powers until resistance is futile or outweighed by the efficiencies of naked power. This collaborative secrecy, working to the detriment of a population, is enough to define their behavior as conspiratorial.”10 Earlier revolutionaries resisted authoritarian conspiracies by trying to cut the links between the most important players with assassination and other kinds of violence. But in the current age, Assange reasoned, the most effective disruptive strategy was to attack the cognitive ability of the conspiracy:
A man in chains knows he should have acted sooner for his ability to influence the actions of the state is near its end. To deal with powerful conspiratorial actions we must think ahead and attack the process that leads to them since the actions themselves cannot be dealt with. We can deceive or blind a conspiracy by distorting or restricting the information available to it. We can reduce total conspiratorial power via unstructured attacks on links or through throttling and separating. A conspiracy sufficiently engaged in this manner is no longer able to comprehend its environment and plan robust action.11
Foreshadowing events that would take place in the preliminaries to the 2016 American presidential election, he continued: “For example, … let us consider two closely balanced and broadly conspiratorial power groupings, the US Democratic and Republican parties”:
Consider what would happen if one of these parties gave up their mobile phones, fax and email correspondence—let alone the computer systems which manage their subscribers, donors, budgets, polling, call centres and direct mail campaigns?
They would immediately fall into an organizational stupor and lose to the other. …
An authoritarian conspiracy that cannot think is powerless to preserve itself against the opponents it induces. … It falls, stupefied; unable to sufficiently comprehend and control the forces in its environment.12
Now Assange was in need of a service provider with titanium balls. He invited John Young, the cypherpunk fellow traveler and fearless owner of the early leaking platform Cryptome, to participate in the new project: “You knew me under another name from cypherpunk days. I am involved in a project that you may have a feeling for. I will not mention its name yet in case you feel you are not able to be involved. The project is a mass document leaking project that requires someone with backbone to hold the .org domain registration. We would like that person to be someone who is not privy to the location of the master servers which are otherwise obscured by technical means. … Will you be that person?”13
Assange invited Daniel Ellsberg, the famous leaker of the Pentagon Papers, to be a member of the advisory board: “We have come to the conclusion that fomenting a world-wide movement of mass leaking is the most cost effective political intervention available to us. New technology and cryptographic ideas permit us to not only encourage document leaking, but to facilitate it directly on a mass scale.” Never one to shy away from thinking on a grand scale, Assange added, “We intend to place a new star in the political firmament of man.” Ellsberg wrote back, demurring: “Your concept is terrific and I wish you the best of luck with it.”14
In its early days, WikiLeaks seemed to be pulling information flows from Tor exit nodes that were relaying sensitive documents stolen by Chinese hackers or spies. These included internal documents from foreign ministries, the United Nations, the US Council on Foreign Relations, the World Bank, and trade groups. The flood of information was so great that after one terabyte had been gathered, WikiLeaks stopped trying to store it.15
A giddy Assange wrote to John Young, “We’re going to fuck them all … crack the world open. … and let it flower into something new.”16 But within weeks of joining the launch efforts, John Young fell out with Assange over Assange’s proposal to approach the foundation of hedge fund owner George Soros for $5 million of funding. Following an expletive-laden exchange of email, Young leaked WikiLeaks’s entire secret planning correspondence on his own site, Cryptome.17
Assange launched his WikiLeaks website in 2006 despite John Young’s defection and a lack of uptake by his former Puzzle Hunt classmates at Melbourne University. Roaming between Africa, Iceland, and Europe over the next few years with a few helpers in each place, the project—staffed much of the time by only two full-time people, Assange and a serious young German engineer and Chaos Computer Club member, Daniel Domscheit-Berg—sometimes looked like it was held together with binder twine. Domscheit-Berg had volunteered for the adventure enthusiastically over internet relay chat (IRC), but he harbored hopes that WikiLeaks would one day be a respectable organization with offices and a stable budget. There was friction between the two partners from the start, and eventually it turned into outright contempt and rupture.
By late 2009, they had leaked a dizzying array of documents, including the emails of Sarah Palin; internet censorship lists from Australia; the “Climategate” emails; US intelligence reports on the battle of Fallujah; the Guantanamo Bay operational manuals; the loans book of the Icelandic bank Kaupthing; and documents that revealed tax avoidance by the Swiss bank Julius Baer, corruption in Kenya, an oil spill in Peru, and other scandals.18 Their system had flaws, but no whistleblower’s identity had been blown, no opponent had succeeded in suing WikiLeaks, and the group had won awards from The Economist in 2008 and from Amnesty International in 2009.19 Nevertheless, Assange was disappointed with the impact they were making; the response by the media and the public was, he felt, middling to indifferent.20
When a disaffected young US lieutenant stationed in Iraq named Bradley Manning got in touch with WikiLeaks in 2010, Assange had the big leak that would send him simultaneously into the history books and the seven circles of hell.
As they planned the disclosure of 720,000 documents21—the largest cache of classified documents ever leaked from the US State Department and Defense Department—Bradley Manning (who was born male, and later underwent sex change therapy and changed her name to Chelsea Manning) and Assange met only by email.
A Hollywood movie and several indie films have been made about Assange, Manning, and Domscheit-Berg. In We Steal Secrets, Manning is typing a message to Assange on a black screen. The letters appear in bursts on the screen, forming words as Manning formulates her thoughts in this most intimate of mediums: “Hillary Clinton … diplomats around the world … are going to have a heart attack when they wake up one morning … and find an entire repository of classified foreign policy is … available to the public … it affects everybody … on earth. It’s open diplomacy, world-wide anarchy … it’s beautiful, and horrifying.”22
The first decade of the new century saw a heightening of political awareness in hacking circles, and much of the energy was coming from the periphery of the American sphere—from the international rag-tag team of WikiLeaks led by Assange, the feisty Australian, and from Europeans, especially those linked to the Chaos Computer Club scene. The cypherpunk mailing list had been instrumental in galvanizing many of these hackers and bringing them together. During its time of operation in the 1990s and early 2000s, when Assange was participating on the list, French, Finnish, Dutch, and German hackers (Andy Müller-Maguhn of the Chaos Computer Club and Jérémie Zimmermann of La Quadrature du Net among them) were also participating on it. The list helped hackers, more than ever, to forge links across continents. And the personal and working relationships that resulted consolidated a new international community of politically progressive hackers. This new wave of hackers redefined what it meant to be a cypherpunk. They came together to play a number of interrelated roles in the WikiLeaks and Snowden stories, adjusting the mantle of the cypherpunks to fit their own shoulders.
During the 1990s and early 2000s, the Chaos Computer Club was very active. It was engaged in performance politics, much as Kommune 1 had been in the radical 1960s and 1970s, which it creatively blended with the kind of advocacy and litigation the Electronic Frontier Foundation was doing in the United States. This was not a stretch for German hackers: the CCC had been championing privacy, transparency, and user self-determination from its start. Moving on from its “hack of the Bildschirmtext” stunt and agitation against the national census in the 1980s, the club made itself known in the 1990s and 2000s for demonstrations of security risks in a range of software, including the software in SIM cards and computerized voting machines. It said the latter were so flawed they could be reprogrammed to play chess, and then it went ahead on a dare and made them play chess. The club also showed how votes could be manipulated on the machines, which led German courts to find that the machines were unconstitutional and the Dutch government to ban their use.23
In terms of style, the Chaos Computer Club was both less earnest and less dire than the American cypherpunks: the club’s antiauthoritarian antics often contained a healthy dose of irreverent wit. To protest the government’s use of biometrics in German passports and other identification documents, for example, they got their hands on the fingerprints of the German minister of the interior, Wolfgang Schäuble, and published them in a magazine, printed on plastic film that readers could use to impersonate Schäuble when going through ID checkpoints.24 To celebrate CCC’s twentieth birthday and commemorate its founder, Wau Holland, who had recently died, the group built a light installation, dubbed Project Blinkenlights, that turned a building in East Berlin into a giant interactive computer screen.25
Andy Müller-Maguhn was in the thick of the club’s activities. In addition to being a Chaos Computer Club board member and spokesperson, in 2002 he cofounded European Digital Rights (EDRi), a European-wide version of EFF. He was elected by European internet users to be the European director of the Internet Corporation for Assigned Names and Numbers (ICANN). He did online journalism on the surveillance industry through the wiki buggedplanet.info; he started a company, CryptoPhone, that invented one of the first commercially available cryptographic voice phones; and he ran a consultancy business that specialized in network architecture.26
Julian Assange presented his WikiLeaks project at the Chaos Communication Camp in 2007. On our ride to the 2015 camp, Andy told me that he met Assange for the first time at that camp. “I thought at the time Julian might run into more trouble than he anticipated with that project,” he added laconically as we sped through the German countryside.
The Chaos Computer Club provided Assange with important assistance when the Manning leak came and as subsequent events unfolded. Among the information Manning gave WikiLeaks was a video of an American military helicopter crew shooting down Iraqi civilians in cold blood. In the video, as crew members kill people below, they patter as if they are playing game, making it particularly disturbing to watch. Shrewdly, Assange decided that this was the leak to edit and package for the press. He and his team worked with supporters in Iceland to prepare it.27 They called it the “Collateral Murder” video. A long-time veteran of the Chaos Computer Club, Dutch hacker Rop Gonggrijp,28 went to Iceland to lend a hand. He and Assange then flew to Washington together, where Assange presented the video at the Press Club on April 5, 2010.29
The “Collateral Murder” video made WikiLeaks famous. Assange’s idea that the group should be “the people’s intelligence agency”30 leapt into being, first with the incendiary video, illustrating the recklessness and lies of America’s disastrous war in Iraq, and then with thousands of State Department cables that showed the American regime as cynical imperialists.
Domscheit-Berg finally walked away from WikiLeaks in late 2010, having completely broken with Julian Assange. He took with him its already published submissions, its recently improved submissions platform, and, allegedly, a slew of unpublished leaks.31 Andy Müller-Maguhn mediated between Assange and Domscheit-Berg to arrange the return of the data and platform.
After being put off for nearly a year with unconvincing excuses, Andy got the published stuff back, and WikiLeaks mirrored it on other servers so that it would never again be vulnerable to being taken down from the internet.32 But Andy felt he was getting the run-around on the other items and began to doubt Domscheit-Berg’s integrity.33
At the 2011 Chaos Communication Camp, Domscheit-Berg launched a new leaking platform of his own, OpenLeaks. Although he refused to release the platform’s code34 (anathema to free-software-movement hackers), he asked camp attendees to bolster its credibility by testing its security. Speaking of Domscheit-Berg’s presentation, Andy told an interviewer from Der Spiegel it was shameless: “We won’t allow ourselves to be co-opted like this.”35 On the third day of the camp, Andy hand-delivered a letter to Domscheit-Berg at a party at around 3 a.m., expelling him from the Chaos Computer Club for exploiting the club’s reputation.36 His decision to exile Domscheit-Berg from hacker ranks was later reversed by the club, but Domscheit-Berg became a pariah in hacker circles: by then, many hackers suspected him of being a government informant, and his OpenLeaks platform of being controlled by intelligence agencies.37
By this time, the Chaos Computer Club was running the Wau Holland Foundation, which included collecting money for WikiLeaks among its activities. When PayPal and other financial institutions boycotted WikiLeaks, the foundation had its PayPal account cut off and lost its charitable status, although both were later reinstated.38
By January 2012, more roadblocks materialized to hinder the WikiLeaks cause. That month, Julian Assange was detained and jailed in the United Kingdom. He was held at Wandsworth Prison for seven days in the cell in which Oscar Wilde had been detained.39 He was jailed not for his hacking activities but, like Wilde, for alleged sex crimes. Two women in Sweden had accused him of sexually assaulting them in the context of initially consensual relations, one when she was asleep and the other when he refused to use a condom.40 These were troubling accusations that Assange and some of his supporters tried to brush off, but they ultimately clung to him like a moral rot, spreading with each minimization he made of them and each sexist, offensive thing he said. (Jake Appelbaum, another widely known personality in the hacker and digital rights community, associated with both Tor and WikiLeaks, also was accused of serious sexual misconduct and abuse of people around him, underlining the dismal fact that abuse of power is an issue in the so-called progressive milieu as much as it is in any other.)
Released on bail and facing extradition to Sweden, Assange was put under house arrest at the Norfolk estate of a wealthy friend.41 Members of the WikiLeaks team stayed there with him. But in many ways, the group was imploding. Some supporters were angry at Assange for what they felt was his reckless release of the first tranche of material Manning had leaked from the Afghan War without redacting the names of people who could be put at risk.42 Others were disturbed by his increasingly dictatorial style and outbursts.43 But some were just freaked out by what WikiLeaks had taken on—the American empire and many other regimes that had the means to strike back against the group. The political virtue Assange said he valued most was courage. “Courage is contagious,” he liked to say.44 But Rop Gonggrijp told his colleagues at the Chaos Computer Club, “I guess I could make up all sorts of stories about how I disagreed with people or decisions, but the truth is that [during] the period that I helped out, the possible ramifications of WikiLeaks scared the bejezuz out of me. Courage is contagious, my ass.”45
Still, Andy Müller-Maguhn visited Assange several times while he was under house arrest in England.46 During this period, Müller-Maguhn, Assange, Appelbaum, and Jérémie Zimmermann, well-known representatives by this time of the new wave of politically progressive hackers, consciously redefined the cypherpunk mantle. In a conversation recorded for an RT television program and later published by them as a book with the title Cypherpunks: Freedom and the Future of the Internet,47 the four hackers identified themselves as cypherpunks, acknowledging the influence the cypherpunk mailing list had had on their respective careers as activists. On the frontispiece of the book, there is a question (“What is a cypherpunk?”), and in the definition that follows, the hackers shed the earlier libertarian and extreme-right strains of the cypherpunk identity. “Cypherpunks,” they state, “advocate for the use of cryptography and similar methods as ways to achieve societal and political change. Founded in the early 1990s, the movement has been most active during the 1990s Cryptowars and the following 2011 internet spring.” In the book’s introduction, the authors make their agenda plain: “Our task is to secure self-determination where we can, to hold back the coming dystopia where we cannot, and if all else fails, to accelerate its self-destruction.”48
“It wasn’t … [the cypherpunks’ view] that one should simply complain about the burgeoning surveillance state and so on, but that we can, in fact must, build the tools of a new democracy,” Assange says at one point in the conversation recorded in the book: “We can actually build them with our minds, distribute them to other people and engage in collective defense. Technology and science are not neutral. There are particular forms of technology that can give us these fundamental rights and freedoms that many people have aspired to for so long.”49
“Going far, far back to the old Cypherpunk mailing list with Tim May,” Appelbaum reflects, “and reading Julian’s old posts on the … list, that’s what started a whole generation of people to really become more radicalized, because people realized that they weren’t atomized anymore, that they could take some time to write some software which could empower millions of people.”50
Even as these reinvented cypherpunks looked to the future to imagine what hacking could do for “a new democracy,” the second most momentous story in the short history of hacking was unfolding. Unknown to them and the wider hacker community, a young contractor working in Hawaii for the US National Security Agency was methodically gathering, organizing, and writing explanatory notes for an estimated 1.7 million classified documents51 on the agency’s activities.52
In 2013 Edward Snowden revealed to the world that the United States was close to achieving an omniscient power of surveillance. In a Hong Kong hotel room littered with clothes and room service trays, where he had been hiding out for weeks, Snowden told American journalists Glenn Greenwald and Laura Poitras that the United States was “building a system whose goal [was] the elimination of all privacy, globally. To make it so that no one [could] communicate electronically without the NSA being able to collect, store and analyze the communication.”53
The documents leaked by Snowden that Greenwald and others wrote about in June 2013 and over the following months proved his claims were not hyperbolic. Even the most informed tech activists were shaken. They revealed that the Foreign Intelligence Surveillance Act (FISA) court ordered the American telecom giant Verizon to turn over to the NSA, in bulk, millions of telephone records belonging to American customers. They revealed that the NSA had direct access to the servers of nine major US internet companies (AOL, Apple, Facebook, Google, Microsoft, PalTalk, Skype, Yahoo, and YouTube) and was looking at the content of emails, videos, photos, VoIP (voice over internet protocol) chats, social networking sites, stored data, and more. Snowden’s leaked documents showed the agency’s own estimates of how much metadata it had collected from computer and telephone networks across the globe, complete with maps and monthly tallies (97 billion pieces in March 2013 alone).
One month later, in July, articles in Der Spiegel and the Brazilian newspaper O Globo confirmed that the NSA had been spying on the metadata of entire populations, including the Germans and Brazilians, through a program that enlisted the foreign partners of US telecoms. Another story revealed that the underwater cables carrying the world’s phone and internet communications across the Atlantic and other oceans were being tapped by the NSA’s allied agency in the United Kingdom, the Government Communications Headquarters (GCHQ), in collaboration with the NSA and in its pay. With the flowing codename Operation Tempora, it was a “full take” program, sucking up both metadata and content. It had probes attached to over two hundred internet links under the seas, each transporting data at the speed of ten gigabits a second.
At the end of July, a number of articles exposed one of the NSA’s most disturbing systems, XKeyscore. It was a desktop tool that allowed analysts to data mine the NSA’s entire distributed system of digital information, including information collected by its “Five Eyes” allies. If an analyst had some identifying information about an individual, such as an email or internet protocol (IP) address, he or she could search the content and metadata of just about anything a person could do on the internet and could do so in real time. No warrant was required. The analyst needed only to fill out an online form. In his Hong Kong hotel room, Snowden had claimed that “I, sitting at my desk … [could] wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email.”54
At the end of the summer of 2013, newspapers revealed that the NSA had cracked the encryption codes that millions of users relied on for email, e-commerce, and financial transactions and had worked to weaken international encryption standards.
By then, it was clear to anyone who listened even sporadically to the news that the United States was spying on its own population and the populations of other countries and that no electronic information of any kind was necessarily private anymore. The situation was made plain by a leaked NSA document published in November 2013 in which the agency itself stated its end goal was to be able to access what it needed on “anyone, anywhere, anytime.”55
The United States was, in effect, subjecting all of the world’s civilian populations to a globalized system of mass, continuous surveillance. But it had also built an authoritarian system of control that could be turned against its own population any time that members of the American political class were feeble enough to allow it. The United States, Snowden warned, had created a surveillance infrastructure that would make “turn-key tyranny” possible: “A new leader will be elected, they’ll flip the switch, say that because of the crisis, because of the dangers that we face in the world, you know, some new and unpredicted threat, we need more authority, we need more power. And there will be nothing the people can do at that point to oppose it … it will be turn-key tyranny.”56
This is how at last—at long last, tech activists might say—the future that the cypherpunks had been warning about broke through the consciousness of the ordinary citizen. Snowden’s great contribution was that he took a factually, politically, and technically complex matter and through strategic, incremental leaks induced a collective epiphany among ordinary people. The shock of Snowden’s revelations as they sank in over the successive breaking news stories was not just that the state wanted to know everything but also how rapidly the technology had advanced in the last decade to allow it. With the Snowden revelations, people began viscerally to sense the “end of privacy”—the end of private thought, of ephemeral conversation, of uninhibited association. The state’s ability to drill down, data mine, and network-analyze every floating piece of information about a person that existed spelled the end of “anonymity in the crowd,” which, people realized, was the condition on which their modern liberal freedoms depended. A world in which the state collected everything and could pinpoint anything promised enhanced state security but at the price of greatly diminished individual security and autonomy.
The shock of Manning’s and Assange’s disclosures, by contrast, was that potentially everyone—including corporations, employers, identity thieves, organized crime, journalists, and any other person with a malign or well-intended will to know more about any individual—could know everything. This dystopia placed personal security and identity at the mercy of forces (predatory or simply intrusive) beyond the state. It also put institutions of all kinds in the position of having to function in a condition of complete transparency.
Even the ordinary person understood that a situation in which everything was potentially available to everyone was unstable and unpredictable. For the first time, perhaps, they began to grasp what digital technology had unleashed—a new cyber “arms race”; a new ecology of secrets and lies as various players vie to dominate or to defend themselves; a new economy with new players, new uses for the correlation of vast troves of data, new kinds of value and profit, new relationships of power between citizens, strangers, and the state. Emailing her message to Assange, Manning seemed to regard the imminent danger of such a rapid, radical destabilization of existing power relationships with awe: “It’s beautiful, and horrifying.”
This new wave of hackers, the reinvented cypherpunks and more broadly the contemporary hacker scene coalescing around the Chaos Computer Club, went on write its own manifesto, one that referred to and drew inspiration from the contributions of WikiLeaks and Snowden. The manifesto, “Privacy for the Weak, Transparency for the Powerful” is now ubiquitous in hacker circles. It is short—sound-bite short—as a manifesto for the twenty-first century must be. I have not been able to discover who the author is. It seems to have arisen from the leaderless collective.
As a constitutional lawyer, I can attest that it is decidedly a democratic manifesto. “Privacy for the Weak, Transparency for the Powerful” is used today by hackers and digital rights activists from a broad range of political persuasions to express a general belief in the basic democratic tenet of popular sovereignty.
It helps to know a little about the history of popular sovereignty to truly understand the concept and why hackers have embraced it. In the early, European way of thinking about democracy, the people ceded their power to their elected representatives, and democratic institutions were merely mixed with or balanced against older aristocratic and monarchical organs of government.57 Popular sovereignty was a uniquely American contribution to the democratic canon of ideas. It emerged in American debates over the replacement of the Revolution’s 1776 Articles of Confederation with a new Constitution.
Prior to the Revolution and continuing after it, the American people were used to taking things into their own hands. They were used to organizing “committees, conventions and other extralegal bodies in order to voice grievances and achieve political goals.”58 They were used to taking mob and vigilante action to do “quickly and effectively”59 what state governments were often incapable of doing, such as stopping profiteering, controlling prices, and punishing Tories. As American historian Gordon S. Wood has observed, a long tradition of “the people out of doors,”60 acting on their own behalf, effecting their will, “instruct[ing] and control[ling] the institutions of government,” had led to a positive belief, “even a legal reality,”61 that the American people, unlike the British, did not surrender their sovereign power to any political institution or collection of institutions.
At the Philadelphia Constitutional Convention of 1787, a patrician Federalist faction proposed a new Constitution that would create a new form of government. It gave a lot of power to the president and senate and created a single republican state in place of a confederation of states.62 In the ensuing debates over ratification, the aristocratic Federalists had to explain how this structure of government would not end up working the same way as a monarchy, annihilating the sovereign power of individual state legislatures, and how two legislatures could, in fact, govern the same communities without either one of them being sovereign.
The Federalists did so (somewhat disingenuously) by appropriating Americans’ belief in their own popular sovereignty. They said that sovereignty resided with the people at large. The election of representatives did not extinguish or eclipse this sovereignty. All powers of government were derived from the people and remained with the people, so that all elected parts of government were only ever partial agents or representatives of the people, and power was always recallable by the people.63
The Federalists’ innovation was a whole new way of thinking about governments’ relation to the governed that made earlier ways seem bankrupt. Over time, the American idea of popular sovereignty had such appeal that it crept into popular consciousness in other places, to such a degree that it has become a normative influence even in parliamentary democracies like those of Canada and the United Kingdom, where the monarch remains the head of state.
Bringing this history to bear on the current era, the contemporary hacker manifesto “Privacy for the Weak, Transparency for the Powerful” captures the two sides of the concept of popular sovereignty: government must be accountable to the people, and people do not have to account for themselves to government (except in specific legal situations and then with adequate protections like due process). When politically minded hackers talk about self-determination for the user, they are broadly evincing a belief in a digital order of popular sovereignty.
“Privacy for the Weak, Transparency for the Powerful” expresses a twenty-first-century hacker commitment to help citizens take back and enforce two rights that are fundamental to a functioning democracy—privacy (the guarantee of autonomy and security in one’s personal sphere and thoughts) and access to information (the primary antidote to misguided or corrupt governance). If privacy and transparency are the minimal conditions people need for maintaining a functioning democracy, it may be hackers’ contribution in the twenty-first century to provide these to them.
In a line that stretches from John Perry Barlow to Julian Assange, Edward Snowden, and beyond, hackers have become the self-appointed defenders of the early ideals of the American Revolution and Constitution. “From the glory days of American radicalism, which was the American Revolution, I think that Madison’s view on government is still unequaled”—Julian Assange told Rolling Stone at the end of his year of house arrest, not long before he found sanctuary at the Ecuadorian embassy in London—“that people determined to be in a democracy, to be their own governments, must have the power that knowledge will bring—because knowledge will always rule ignorance. … The question is, where has the United States betrayed Madison and Jefferson, betrayed these basic values on how you keep a democracy?”64