The Natural Right of Flawless Encryption

Amid claims by U.S. officials that a “golden key” to all forms of encryption software is necessary to fight terrorism, a UN Report released in May asserts that securely encrypted communications among private citizens aren’t just permissible, but a human right. The report’s author, UC Irvine professor David Kaye, notes the problem of creating a weakness in all encryption systems for the U.S. government due to the high probability that any “golden key” access will likely end up in the hands of foreign governments and hackers, making the encryption useless.

Kaye’s pragmatic argument is valid, and popular among cryptographers and privacy advocates. But this argument doesn’t go far enough. Denying governments the right to crack encryption isn’t just defensible on pragmatic grounds. Encryption is a vital tool to prevent abuses of power since even the most benevolent governments have proven untrustworthy and unlikely to ensure the protection of rights when their interests fail to align with those of the governed.

State actors tend to subordinate the right of privacy to the expansion of their own information gathering. Regardless of states’ procedures designed to ensure individual rights are protected, the unchecked expansion of invasive capabilities that they naturally pursue indicate that there may be fundamental flaws in the democratic model. Air-tight encryption may be the only reliable antidote.

Privacy is a Natural Right

As libertarian scholar Michael Rozeff notes:

The origin of privacy is social necessity. Social cooperation and interaction, freely given, depend on it. Speech depends on it. Not being fearful depends on it. Operating as an autonomous person depends on it. No one can operate at all well without feeling that he can take a walk or a drive or say something in privacy, unmonitored by a State agency. To be monitored in all forms of private activities is a form of imprisonment! One may roam, but one is constantly under guard and subject to State intrusions.

As Rozeff indicates, a society that lacks the ability to communicate privately does not have free-thinking, autonomous individuals. It is populated by something more akin to inmates who have surrendered their sovereignty to the state and live in a tightly controlled environment where freedoms only exist at the discretion of administrators. A life where every action is taken looking over one’s shoulder doesn’t lend itself to building trust, social progress,  or otherwise growing a free society. The technical limitations imposed on states are among the least celebrated guarantors of human liberty; imperfect control of information forces states to build consensus and leaves them less able to establish totalitarian systems.

Privacy is an essential component of human liberty, but the United States Supreme Court has taken a half-hearted approach to protecting it. Constitutional law considers privacy highly contextual, and allow for tradeoffs between personal privacy and “public interests.” Currently, the standard set in 1967 by Katz v. United States establishes that a privacy right exists in a certain situation if it can be reasonably expected, and if society agrees that this expectation is reasonable. Subsequent rulings have affirmed this standard up through this year.

This is problematic in our densely interconnected world, since there isn’t broad agreement on what type of communication qualifies, nor a broad understanding of how technology works. The end result has been a Byzantine mess of case law leaving a trail of injustice in its wake, and a global surveillance apparatus that takes advantage of the confusion by growing its power in secret.

Elevating the right of privacy to that of a natural right protects the act of communication itself and ensures it is not dependent on ever-shifting context, according to NYU legal scholar Richard Epstein. Epstein notes that “a natural right is defined as an independent right not contingent on any situational or environmental factors. If privacy is a natural right, that right would apply to both the real and online worlds, equally to employees, students, library users, browsers, and consumers.” The contextual approach approved by the Supreme Court means “an individual’s right to privacy waxes and wanes based on what one is doing.”

The Snowden leaks in June 2013 revealed that the U.S. and its allies are disinterested in restraining themselves with warrants and Constitutional principles. This makes the “contextual” standard even more complicated, since individuals can now expect that they may well have no privacy rights at all. To prevent the right to privacy’s diminution into some curious historical artifact, a broad-based natural rights standard clearly makes more sense.

Constitutional law can only provide so many answers, and only within a framework of specific precedents. But if we consider that a person has a natural, rather than a contextual right to protect their communication or other information, it follows that a person has the right to defend their privacy with whatever tools are available, regardless of the needs of the state. Only air-tight encryption takes the burden of enforcement away from the state and enables the individual to defend his or her own natural right to privacy.

Governments Obey Incentives, Not Laws

The Snowden leaks proved that individuals must take responsibility for their own privacy by revealing an inherent problem at the heart of constitutional government. By revealing the inner workings of the surveillance state, the leaks showed us governments don’t obey constitutions or laws, per se. Like the rest of us mere mortals, state actors obey incentives. The FISA Act shows that Congress defers heavily to state power and seems mostly unconcerned with privacy rights. This helped to create a culture of apathy for privacy protection within the secretive administration of spying programs as well. One former FISA judge even said the FISA Court “has turned into something like an administrative agency,” rather than a proper court.

Given public ignorance, there seems to have been little incentive for legislators to keep a close eye on the NSA or develop a thorough understanding of the technology it employed. Where incentives are weak, government agents are unlikely to restrain their own behavior. And incentives for government actors to self-restrain are especially absent in the cloak-and-dagger world of “national security.” With incentives lacking, “going dark” and denying the state access to encrypted data seems the only reasonable protection.

Even if some democratic governments make a sincere attempt to follow their own laws, they will likely find themselves at a tactical disadvantage against more oppressive governments. As The Atlantic recently noted, “this new world is significantly imbalanced in favor of non-democratic nations — not because authoritarian states are more technologically sophisticated than their democratic counterparts, but because they are more institutionally flexible, opaque, unaccountable, and often corrupt.” The asymmetric nature of cyberwarfare means that even less oppressive states are likely to internally rationalize that violating privacy rights is necessary to battling spies, hackers, terrorists and other offenders.

In this context, it is clear that a golden key is a nuclear weapon against privacy; it ensures the state has the ability to violate privacy broadly and indiscriminately, without separating the innocent from the guilty. A key that opens every safe means that no safe can ever be secure from illegal search and seizure, given the impossibility of ensuring that governments will obey their own laws when acting under the veil of “national security” secrecy. This has already been shown in a number of instances, such as the secret infection of PCs all over the world with spyware. Any government that restrained its own use of the golden key would be at a tactical disadvantage, and would thus find itself in an unsustainable position.

Encryption is Power

Encryption is, at its core, a form of counter-power. It is a sword that can be wielded against an oppressor to expose its most nefarious activities, and a shield against injustice, able to protect a defendant against a meatgrinder justice system. Encryption protects information and buys the owner of that information options, time, leverage and influence. Encryption has become an essential tool of individual sovereignty, much like the printing press was for previous generations.

We have all heard the adage “knowledge is power.” In previous centuries, access to knowledge was tightly controlled by the clergy and state officials. In the Information Age, the ability to control access to knowledge ensures the empowerment of the individual even when the interests of the state are opposed. This is changing the relationship between the state and the individual in remarkable ways. In the past, the government could access virtually any information that you didn’t destroy or hide effectively. They could get a warrant and break into your home within a few minutes; if you had an extra-sturdy safe, they could smash their way in within a few hours or days. Governments around the world knew that escalation of force will get them what they want, sooner or later.

But that era ends with perfect encryption. AES-256 cannot currently be breached without the keys, no matter how much processing power a government agency commands. For perhaps the first time ever, an individual may, at will, keep any government in the world out of his private business with the ease and simplicity of logging into an email account. If the state knows information it wants is inaccessible, it must change course and negotiate, putting the owner in a new-found position of power.

The state would have you believe governance is merely the imposition of authority: You commit a crime, there is an penalty on the books that will be carried out that you have little control over. If you fail to claim certain income on your taxes, you owe a certain penalty. But it may be more accurate to say governance is a negotiation process by which government and governed come to an agreement according to their relative power positions. The state has imperfect knowledge and limited resources. It is sclerotic and bureaucratic. Given its limitations, it must under some conditions negotiate with those who break its rules — criminals, lawyers, whistleblowers, journalists, hackers, foreign states– in order to maintain legitimacy. As Wall Street bankers know, having leverage against the state can keep you out of prison. That leverage can also keep activists safe from abuses of power.

Once it’s written, encryption doesn’t respond to poorly written laws, corrupt judges, mad dictators, overzealous prosecutors, or racist cops. It is unconcerned with human failings and follows only mathematical laws. This might mean that terrible people will have the same protection, just as criminals and terrorists all use telephones, cars and other available technologies. But encryption programming is a language that can be learned by anyone. Even if every encryption standard in the world were banned or back-doored, any reasonably sophisticated criminal or terrorist organization would write their own.

Encryption is the Future of Freedom

Twenty years in, The Digital Age has personal autonomy perched on a razor’s edge. The way we treat privacy today will have repercussions in the future. An oppressive surveillance society is one possibility. But if we fully realize the potential in the tools we have to overcome centralized power, we can create a world where the vision of individual sovereignty philosophers have been developing since the days of Aristotle comes closer to reality than they had ever dreamed.

Evolving technology forces a real philosophical debate about rights, and should lead us to properly re-evaluate its role in our lives. The NSA has voiced fears about large swaths of the web “going dark” due to uncrackable encryption, providing safe haven to terrorists. Their concern is reasonable. But the alternative is a world where governments expand their power with near-impunity. Most state surveillance agencies would likely consider themselves virtually unstoppable, and the near-total reach of the global surveillance apparatus could change the relationship between man and state in horrifying ways. A well-funded, technologically proficient, opaque security state can do far more damage to liberty than any terrorist.

Governments do not have a right to see every communication on the web. They are endowed with police powers by individuals, who are the only holders of rights, in order to provide for the common good, at least in theory. Natural rights, by definition, exist whether governments recognize them or not, and in some cases must be defended in ways that contradict government interests. Even if the battle against terrorism, drug cartels, hackers, spies or other criminals becomes more difficult, “going dark” remains the right of all human beings.

[Published at the Center for a Stateless Society, Sep. 12, 2015]

Snowden Leaks Proved State Cannot be Restrained Without Disobedience

[Published at the Center for a Stateless Society, Aug. 1, 2015]

The Obama Administration finally responded earlier this week to a two-year-old petition on Whitehouse.gov requesting the pardon of Edward Snowden. 170,000 signatures and a wave of anti-NSA public anger later, the White House formally refused to pardon the leaker, citing the alleged, unspecified damage his actions did to national security.

The petition response made no mention of any type of public service Snowden may have accomplished, particularly in the wake of the May 7, 2015 federal appeals court ruling that the telephone metadata program the president has repeatedly defended is in fact illegal. But the reality Snowden's leak exposed is that the growth of state power cannot be constrained—even by normal legal means—without assistance from extra-legal measures.

The intelligence apparatus had not only hid behind the secrecy of its surveillance capabilities; it tried to protect itself from scrutiny by claiming that any substantive information released to a court would damage national security interests. It even claimed that it couldn't explain exactly why or how this damage would occur... without defining what exactly “national security” means or why it trumps civil liberties.

We're fortunate the Court of Appeals saw through this argument. However, it likely never would have heard the case if not for Snowden's heroic act of what the White House's response sneeringly called “civil disobedience.”

The government's obstructiveness with the justice system has already created problems for plaintiffs trying to keep their information private and fighting for some semblance of Fourth Amendment privacy in the U.S. According to the ACLU:

By a vote of 5–4, the Supreme Court held that the plaintiffs in the [Clapper v. Amnesty International, 2013] case lacked standing to challenge the constitutionality of the FAA. Specifically, the Court reasoned that the plaintiffs had not shown that they had been injured by FAA surveillance, because they couldn’t establish a sufficient likelihood that their communications were being monitored under the statute. The plaintiffs couldn’t make that showing, because the government had refused to disclose, even in the most general terms, how the statute was being used.

That case was decided just before the Snowden leaks, but the decision may have just signaled a broader shift in judicial opinion on secret surveillance programs could be in the works. The Circuit Court determined in ACLU v. Clapper that the Snowden leaks provided valuable new information:

The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information.

According to Sen. Ron Wyden: “Now that this program is finally being examined in the sunlight, the Executive Branch’s claims about its legality and effectiveness are crumbling.”

Without leaks such as Snowden's, public review of sweeping, and intrusive government policies may not be fully realized. This particular case shows that the architecture of democracy may in fact be crumbling as a result of advances in technologies that can grant states enormous power to acquire information secretly.

All states expand their authority as a result of internal and external pressures, among them the battle for information supremacy. Logically, if knowledge is power, then more knowledge is more power. That expansion progresses toward the end goal of absolute authority. The progression may be constrained by different factors including the democratic process, competition with other states, and technological restrictions. But due to its competitive nature, it must always press forward.

In light of the ruling, we should consider that the state's ability to expand its surveillance power in secret may have outstripped the ability of the democratic or legal processes to properly restrain it. In short, we may be at the outset of a new era, one in which information acquisition can be accomplished so rapidly, so efficiently, that lumbering, deliberative, and arcane processes like elections, legislation and even the court system may be at a permanent disadvantage against the rapidly developing power of what some experts call the “deep state,” a network of secretive government agencies and their corporate partners that form the clandestine security apparatus.

This suggests that such an “illegal” action as Snowden's leak is not only permissible if properly focused, but essential to the cause of justice and limiting of coercive government powers.

Leakers and their journalist allies can provide a bulwark against state power expansion regardless of which government happens to be the offender. We should assume that a lack of transparency broadly means they are all offenders, and are guilty until forced transparency proves otherwise.

The Natural Right of Cyber-Dissent

[Published at the Center for a Stateless Society, March 27, 2015]

At the height of anti-NSA furor in January 2014, The New Republic (TNR) published a hit piece on Edward Snowden, Julian Assange and Glenn Greenwald that criticized their anti-government beliefs, portraying the leakers as “paranoid libertarians” and traitors to progressive government ideas.
Said TNR:

By exposing the secrets of the government, they claim to have revealed its systematic disregard for individual freedom and privacy. Theirs are not the politics of left against right, or liberals against conservatives, or Democrats against Republicans, but of the individual against the state. To oppose them is to side with power against liberty, surveillance against freedom, tyrannical secrecy against democratic openness.”

“Snowden, Greenwald, and Assange hardly subscribe to identical beliefs … [their] outlook is neither a clear-cut doctrine nor a philosophy, but something closer to a political impulse that might be described […] as paranoid libertarianism. Where liberals, let alone right-wingers, have portrayed the leakers as truth-telling comrades intent on protecting the state and the Constitution from authoritarian malefactors, that’s hardly their goal. In fact, the leakers despise the modern liberal state, and they want to wound it. [emphasis added]

One wonders how “paranoid” were those who were ruthlessly harassed and held at gunpoint for questioning the NSA’s authority, such as whistleblower William Binney, whose story was prominently featured in the Snowden documentary CitizenFour. But in arguing that all men were compelled by an essentially libertarian idealism, TNR was right on the money, and this has serious implications for both the future of libertarian thought as well as anti-state activism.

The threat to free expression posed by unrestrained government institutions has created the need for a new front against the quiet, malignant growth of state power over the web granted to it by its rapidly-increasing technological capabilities. The anti-institutional radicalism inherent in libertarian ideals provided Snowden, Assange and Greenwald with an intellectual basis for their extralegal activism and a politically active community for support; it likewise ensured that libertarianism earned a way to not only distinguish itself from conventional “right wing” political thought in the public eye, but provided a real-world justification for its radical characteristics and brought its ideas to a wider audience. This sort of electronic civil disobedience could provide a resilient, anti-fragile bulwark against unchecked state power that legislation and conventional activism has been otherwise unable to create.

Snowden’s libertarian political stance is no mystery. In private chats on the ArsTechnica website back in 2008, Snowden voiced support for Ron Paul and even endorsed the gold standard. According to the chat logs he also told people about his general disdain for welfare-state policies. He is also widely known to have donated to Paul’s 2012 campaign.

Greenwald, like Snowden was likewise inspired by the anti-authority elements of libertarian thought. According to TNR, Greenwald,

began to envisage… [dissolving] the usual lines of political loyalty and unite the anti-imperialists and civil libertarian activists on the left with the paleoconservatives and free-market libertarians on the right in a popular front against the establishment alliance of mainstream center-left liberals and neoconservatives.

In his own words, Greenwald explained a “political re-alignment” had occurred, one that rendered “traditional ideological disputes” irrelevant. That re-alignment, to Greenwald, was of man versus government, no matter who was in charge.

When Snowden was spirited away from Hong Kong in mid-2013, his escape was arranged by Wikileaks co-founder Julian Assange, another anti-state libertarian who had been long established in the cypherpunk community. According to the TNR piece, Assange, like Greenwald, came to see “the defining human struggle not as left versus right, or faith versus reason, but as individual versus institution,” a core concept of libertarian thought.

In a Forbes interview back in 2010, Assange noted he was influenced by Ron and Rand Paul as well as American libertarianism in general. “So far as markets are concerned I’m a libertarian” Assange stated. “To put it simply, in order for there to be a market, there has to be information. A perfect market requires perfect information.”

Assange’s libertarianism goes far beyond markets however; his own comments on the nature of state authority are steeped in traditional libertarian notions of coercion. He notes in his book, Cypherpunks: Freedom and the Future of the Internet that,

states are systems through which coercive force flows… factions within a state may compete for support, leading to democratic surface phenomena, but the underpinnings of states are the systematic application… of violence. [Cypherpunks] saw that the merger between existing state structures and the internet created an opening to change the nature of states.

Even though most of the media has not seemed cognizant of the strong ideological association between libertarianism and some of the most prominent privacy activists of the last few years, the inspiration evinces the role of libertarian radicalism in their activity: an intellectual tool that provides a framework for activists to question the legitimacy of major institutions at a critical historical juncture, which in our case, is the breakdown of restraints on state power through the rapid development of invasive spying capabilities by federal agencies.

This helps to put modern libertarianism in an important historical context. Radical institutional criticism has proved critical to the development of civilization as we know it today. Martin Luther’s 95 Theses, John Locke’s Treatises, Thomas Jefferson’s Declaration of Independence, Thomas Paine’s The Rights of Man, Thoreau’s Civil Disobedience, and various works by Irish patriots, Mohandas Gandhi, Martin Luther King Jr. and other civil libertarians all have something critically important in common with modern libertarian activism: the inflammatory, yet foundational concept of natural rights.

A New Libertarian Activism

Natural rights were considered a long-settled set of foundational principles and have resided at the bottom of the stacked assumptions that make up western political thought. At the top of the stack are the assumptions most often dealt with, i.e., should we have higher or lower taxes? More welfare or less?

Despite its importance to our civilization as a foundational legal and political concept, natural rights very rarely come up in politics. Essentially, the theory says that human beings have fundamental, inalienable rights intrinsic to their nature that cannot be contracted away even voluntarily, and that either come from nature’s laws or, depending on the source, God himself. These rights were enumerated in the U.S. Declaration of Independence: Life, Liberty and the Pursuit of Happiness (alternately, “estate” according to John Locke.) The most important aspect was the “inalienability” of these rights, i.e. they superseded all government authority, no matter how seemingly necessary or just.

But when an institution is perceived as violating natural and civil rights with impunity, such as the Catholic Church in the 16th century, the British Empire in the 20th, or the NSA in the 21st, activists are forced to dig deeper into long-held assumptions to question major institutions and remind the public that those institutions only have borrowed authority that actually resides within individuals. “Natural law” is the philosophical equivalent of Excalibur, a weapon so deeply imbedded in our moral framework it can only be drawn out by a select few, and so powerful it can only be wielded when all else has failed.

According to the libertarian-anarchist Murray Rothbard:

The natural law is, in essence, a profoundly “radical” ethic, for it holds the existing status quo, which might grossly violate natural law, up to the unsparing and unyielding light of reason. In the realm of politics or State action, the natural law presents man with a set of norms which may well be radically critical of existing positive law imposed by the State. At this point, we need only stress that the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus.

This foundational essence of libertarian thought that provides a connective thread to today’s institutional critics and anti-state activists primarily because it has been proven effective in both justifying and motivating anti-institutional activism through history. Edward Snowden illustrated during a February 2015 Reddit AMA his belief in natural rights and underpins his own act of defiance as an affront against the supposed “rights” of government:

Our rights are not granted by governments. They are inherent to our nature. But it’s entirely the opposite for governments: their privileges are precisely equal to only those which we suffer them to enjoy.

…Here and there throughout history, we’ll occasionally come across these periods where governments think more about what they ‘can’ do rather than what they ‘should’ do, and what is lawful will become increasingly distinct from what is moral.

In such times, we’d do well to remember that at the end of the day, the law doesn’t defend us; we defend the law. And when it becomes contrary to our morals, we have both the right and the responsibility to rebalance it toward just ends.

Well, when we look back on history, the progress of Western civilization and human rights is actually founded on the violation of law. America was of course born out of a violent revolution that was an outrageous treason against the crown and established order of the day. History shows that the righting of historical wrongs is often born from acts of unrepentant criminality.

The remedy for a violation of civil rights, according to Snowden, is an activist disobedience that prevents their criminal behavior through the development of defensive capabilities by individuals:

How do we make that work for us? We can devise means, through the application and sophistication of science, to remind governments that if they will not be responsible stewards of our rights, we the people will implement systems that provide for a means of not just enforcing our rights, but removing from governments the ability to interfere with those rights.

Snowden’s Reddit manifesto is a full-throated endorsement of both natural law and civil disobedience, entirely consistent with the grand American tradition of defiance of bad laws that are inconsistent with those founding Enlightenment virtues.

Along similar lines, Assange clearly states his support for electronic civil disobedience in Cypherpunks: “cryptography is the ultimate form of non-violent direct action … strong cryptography can resist an unlimited application of violence.”

Assange evoked the Transcendentalists in his Wikileaks Manifesto in 2006, likewise proponents of the disruptive idea of natural law:

Every time we witness an act that we feel to be unjust and do not act we become a party to injustice. Those who are repeatedly passive in the face of injustice soon find their character corroded into servility.

Compare with Thoreau’s quote on injustice from his essay “Civil Disobedience”:

…if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.

These men were all in a position where they had to deal with knowledge of grave injustices being committed by the state. TNR is probably correct to argue they had no common ideology because they all may not have been fully committed, bow-tied libertarians. But how much Mises or Hayek each of them digested seems to matter less than what ideas motivated them to act. Ideologies exist to explain and map out solutions to complex social and economic problems that arise from time to time. This is of little concern to the civil disobedient, whose high-stakes action is laser focused on the remediation of a singular grave injustice.

Without a doubt, the core principles of that “paranoid” libertarian impulse were present to both motivate and justify their selfless defiance of bad laws. That “impulse” led them to actions that exemplify a historic unification of radical libertarianism and civil disobedience as underwritten by natural law, a potentially powerful combination of ideas if it is wielded responsibly and inspires others to follow suit.

Where this intellectual synthesis will lead in the future is unclear. If Snowden’s actions inspire other leakers, as seems to be the case, the threat of repeated embarrassing leaks could lead to increased pressure for reform; the resulting information lockdown within the government could even result in increasingly sclerotic information flow and bureaucratic inefficiency as the NSA struggles to plug leaks, according to Assange. Certainly, the Snowden leaks have turned up the heat on governments in a way conventional political activism was unable to do. Public anger toward the NSA has already cooled, diminishing momentum for reforms being pushed by some libertarian activists. Future actions by dissenters, however, could turn the heat back up, and perhaps more importantly, set alight new “brushfires of liberty” in young minds.

Dissenters naturally gravitate toward the most compelling political narrative in order to provide corroboration for their personal alienation experiences. That could serve to explain how these three found libertarianism and each other, and indicate how future leakers may come to justify their actions. But with much of today’s digital activism seemingly unmotivated by any particular set of values, the ideological convergence between libertarianism and disobedience is still fitful and incomplete: The activism of Snowden, Assange, and Greenwald, among scores of others, is only a representation of what it might become.

Edward Snowden Endorses Civil Disobedience

Via his Reddit AMA today...

"We should remember that governments don't often reform themselves. One of the arguments in a book I read recently (Bruce Schneier, "Data and Goliath"), is that perfect enforcement of the law sounds like a good thing, but that may not always be the case. The end of crime sounds pretty compelling, right, so how can that be?

"Well, when we look back on history, the progress of Western civilization and human rights is actually founded on the violation of law. America was of course born out of a violent revolution that was an outrageous treason against the crown and established order of the day. History shows that the righting of historical wrongs is often born from acts of unrepentant criminality. Slavery. The protection of persecuted Jews.

"But even on less extremist topics, we can find similar examples. How about the prohibition of alcohol? Gay marriage? Marijuana?

"Where would we be today if the government, enjoying powers of perfect surveillance and enforcement, had -- entirely within the law -- rounded up, imprisoned, and shamed all of these lawbreakers?

"Ultimately, if people lose their willingness to recognize that there are times in our history when legality becomes distinct from morality, we aren't just ceding control of our rights to government, but our futures.

"How does this relate to politics? Well, I suspect that governments today are more concerned with the loss of their ability to control and regulate the behavior of their citizens than they are with their citizens' discontent.

"How do we make that work for us? We can devise means, through the application and sophistication of science, to remind governments that if they will not be responsible stewards of our rights, we the people will implement systems that provide for a means of not just enforcing our rights, but removing from governments the ability to interfere with those rights."

He goes on to endorse natural rights...

"You can see the beginnings of this dynamic today in the statements of government officials complaining about the adoption of encryption by major technology providers. The idea here isn't to fling ourselves into anarchy and do away with government, but to remind the government that there must always be a balance of power between the governing and the governed, and that as the progress of science increasingly empowers communities and individuals, there will be more and more areas of our lives where -- if government insists on behaving poorly and with a callous disregard for the citizen -- we can find ways to reduce or remove their powers on a new -- and permanent -- basis.

"Our rights are not granted by governments. They are inherent to our nature. But it's entirely the opposite for governments: their privileges are precisely equal to only those which we suffer them to enjoy.

"We haven't had to think about that much in the last few decades because quality of life has been increasing across almost all measures in a significant way, and that has led to a comfortable complacency. But here and there throughout history, we'll occasionally come across these periods where governments think more about what they "can" do rather than what they "should" do, and what is lawful will become increasingly distinct from what is moral.

"In such times, we'd do well to remember that at the end of the day, the law doesn't defend us; we defend the law. And when it becomes contrary to our morals, we have both the right and the responsibility to rebalance it toward just ends."

Big takeaway:

Some people don't see the point in debating the origins of rights in the academic sense. Do they come from God? Government? Nature? Votes? But there is a huge lesson here. The idea that rights are an essential part of our nature can motivate people to do extraordinary things in defiance of authority. For the Sinn Fein, convincing the Irish that their meager rights were not bestowed by the British Crown were an essential factor in motivating them to battle to restore them. For Edward Snowden, such an idea seems to have underscored his headline-grabbing act of defiance. For if rights do not emerge from legislative sessions, then those rights cannot be legitimately struck down by those sessions, only suppressed. Something to keep in mind.