The Natural Right of Cryptographic Governance

[Published at the Center for a Stateless Society, Dec. 10, 2015]

In the wake of the recent terrorist attacks in Paris and around the U.S., sentiment among the governing class is turning powerfully against encryption.

Reuters reports an impending “crackdown” on Bitcoin in the EU. Other reports suggest France could inhibit Tor and free wi-fi at will. U.S. officials have taken the opportunity to go on the offensive against any form of encryption, with Senator Dianne Feinstein arguing encryption “ought to be able to be pierced.”

At the heart of the state’s fears is the loss of control it faces. In encryption, human beings have a tool to ensure security and privacy that is resistant to the escalation of force. Even after governments have taken out a warrant against someone, that person still has the ability to keep his information secret, subject to negotiation between himself and the state.

But officials correctly point out that child pornographers, drug dealers and terrorists can use encryption as a tool to keep vital information away from law enforcement. Its reliability and agnosticism, they claim, makes encryption a threat to public safety.

That creates a moral and philosophical dilemma for users and advocates of cryptographic technologies. We have an incredible tool at our disposal, but with the equal potential for legitimate use and abuse. Do we have the right to encrypt information regardless of government interests?

To answer this question, common law and statutory law are insufficient. With the improvements that blockchain technology could bring to the human condition, this is a deeper question with significant implications. The proper use of a disruptive technology that transcends borders should be considered outside of the normal philosophical channels when its existence is an affront to long-established political authority. Natural law and the fundamentals of the “social contract” provide better answers and a clearer direction.

The Surveillance State is Absolute

Rapid changes in information technology over the last two decades have created a banquet of easily acquired information about virtually everyone in the world. The world’s reliance on the internet has made normally private information incredibly easy to acquire. It has also made the existing social contract argument for government authority obsolete.

By the old nation-state system, a nation makes laws and protects rights within a certain geographical boundary. Those outside the boundary are neither subject to its jurisdiction, nor its protections.
But most international threats are now coming from non-state actors. The world has long since stabilized at the state level, but terrorist networks are waging peer-to-peer warfare, circumventing states in most cases by taking their political grievances directly to their citizens.

To combat this “denationalized” threat, states have exploited loopholes between these various “social contracts” that exist between states and their citizens. States may make some effort to respect the legal rights of their own citizens within their own borders; but rights do not tend to carry over to citizens of other countries. The Five Eyes Alliance is one glaring example, where states are widely believed to spy on each other’s citizens and share information so that each may circumvent their own domestic spying restrictions.

This trend is compounded by a lack of accountability. Control is difficult to enforce legislatively with widespread public apathy, and finding standing in court can be likewise impossible without information from behind the veil. The global surveillance state is expanding its reach beyond any practical restraint by legislatures, evolving into a highly fluid, rapidly adaptable information siphon. In that sense, it is becoming as “denationalized” as the threat it is trying to fight. As one NSA official succinctly put it: “It’s becoming a cliché that a permanent state of change is the new standard. It is the world we live in — navigating through continuous whitewater … lucky for us.”

Meanwhile the security state has used its powers to commit financial espionage, intimidate journalists and whistleblowers, and circumvent restrictions on information gathering for crimes unrelated to terrorism. According to cybersecurity expert Chris Soghoian, they continue to “prioritize their own foreign intelligence goals over the security of the Internet”, deliberately inserting exploits into vital security systems.

In light of this conflict of interests between the surveillance state and the citizen, the onus falls on the latter to protect his own privacy.

To break this down into a simple epistemology:

Political violence (war) is being denationalized.

The means of fighting political violence are being denationalized.

Since individual rights are at risk in war, the defense of rights should also be denationalized wherever possible.

States will not protect the privacy of foreign nationals because it would defeat the purpose of their job. They will continue to spy domestically because it’s easy to get away with. There aren’t enough Edward Snowdens out there to stop them. Their global reach leaves virtually no person’s privacy untouched. But this new paradigm isn’t just a reason to protect one’s own privacy. It invalidates the social contract and renders the prohibition of networked cryptographic alternatives morally impermissible.

The “Social Contract” Reconsidered

Since the decline of the “divine right of kings” doctrine, social contract theory has dominated the reasoning behind the coercion of the state. Its logic (like that of the “divine right” theory) has always been circular, but amenable to most people as a post-hoc rationale for their general approval of the role of the state in human affairs. For that reason, a careful reevaluation of the theory is necessary.

John Locke claimed in his Second Treatise on Government (1689) that the contract was the price of civilization: prehistoric humans, possessing natural rights of life, liberty and property sacrificed those rights to the state in order to create early civilization, reaping in turn the stability, security and prosperity that large societies make possible. Natural rights can then only be taken away legitimately by the state upon conviction of a crime through a rigorous process of law. As long as the state abides by the rules set by the contract and receives the continued support of the governed, so the argument goes, individuals have no right to subvert it to pursue their own interests.

But the growth of global information systems has created some new problems for the social contract.
The first problem is the collapse of reciprocity: According to Locke, the social contract necessitates the state and the citizen exercise mutual obligation toward each other, the state to protect rights, and the citizen to maintain the legitimacy of the state through voting, paying taxes and abiding by its rules. But with a networked surveillance apparatus not controlled by any single nation state acting in secret, the ballot box is unlikely to be of much help. This “deep state” exists outside of the contract: it is its own entity and routinely violates privacy rights as a matter of course.

The second, and more important issue is one of consent. If individuals don’t want any part of this, do they have any recourse or are they bound to the terms of the contract? Locke acknowledged that individuals cannot be perpetually bound to any government, “every man being… naturally free, and nothing being able to put him into subjection to any earthly power but only his own consent.” Consent, he argued, could be tacit, but it was nonetheless vital. Non-consent could be expressed by abandoning the system and creating a new one. “Since the government has a direct jurisdiction only over the land”, Locke claimed, individuals are free to “begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed.”

There were also little “loopholes” in the contract created by the difficulty in determining consent. Locke noted that “EVERY MAN HATH A RIGHT TO… BE EXECUTIONER OF THE LAW OF NATURE” (caps all his) because “if by the law of nature every man hath not a power to punish offences against it … I see not how the magistrates of any community can punish an alien of another country; since, in reference to him, they can have no more power than what every man naturally may have over another.”

This is a key point. The Father of Classical Liberalism claimed that because social contracts did not reciprocate across national boundaries, any individual could morally punish a transgression against his own rights by a foreigner. This could of course easily translate to the peaceful defense of one’s privacy against some foreign government’s spying capabilities. Locke’s acknowledgement shows the weakness of the social contract argument when applied across national borders. It also shows the intellectual bind Locke found himself in in order to affirm that the contract requires consent to be valid.

Privacy and the Open Source Revolution

As I have argued previously, privacy should be considered a natural right if it can be considered a right at all. Individuals retain the right to use air-tight encryption as a defensive tool to protect their privacy against the failure of their legal and political systems. But if individuals are retaining their “state of nature” right to defend themselves against state dysfunction, they must create a new kind of “state” with multiple functions in order to defend those capabilities.

For example, the right to exchange value must necessarily accompany the right to procure a resource, or opponents could render that right functionally irrelevant. Open source encryption software is free and easy to come by for now. That could change if states make it illegal, requiring a risk premium for developers and high costs for consumers.

To counter this possibility and deter prohibition, a robust cryptocurrency trade would be necessary to keep people free in the event the state shut down people’s bank accounts or credit cards, as was the case when the U.S. government pressured credit companies to shut down Wikileaks’ finances. This means that denationalized cryptocurrencies like Bitcoin and Dash are an integral tool to preserve individual rights.

As former CIA officer and open-source advocate Robert David Steele noted, to function properly, open source systems must develop in tandem. “The open source ecology is made up of a wide range of opens — open farm technology, open source software, open hardware, open networks, open money, open small business technology, open patents – to name just a few. The key point is that they must all develop together, otherwise the existing system will isolate them into ineffectiveness.”

Cryptocurrency transactions, run through a trustless mixing system are virtually untraceable. We’re not just talking about private emails anymore, but the right to create a new, transparent, resilient framework of alternative institutions as the old ones succumb to their own opacity.

But cryptography may not just tear down the social contract in the negative sense — it could also rebuild it in a way that better defends individual rights.

The Social Contract and Land Rights

The natural rights were enumerated by Locke as life (the right to defend one’s person against physical threats), liberty (the right to act freely without interference from arbitrary authority) and estate (the right to retain property mixed with one’s labor). Property in particular is one space that is being redefined by technology, leaving open the possibility that the nation-state could be disintermediated from its traditional role of definer and defender of property rights.

Locke argued that in prehistory, the very first “social contracts” were formed when individuals ceded their land to governments in exchange for protection. All subsequent owners of that property, he claimed, enjoyed the protection of the state, and were thus bound to perpetuate its authority. The logic is circular, to put it mildly, but worth noting: he makes it clear that the Social Contract is justified because there was no practical alternative to define and protect land rights.

Governments were defined by the land they protected. Within their borders was a single “final arbiter” with a monopoly on violence to keep order. Many would argue this model provided stability and security for populations around the world and enabled the growth of economies of scale for centuries.

But if property rights can be established and defended without the state, dependence on government institutions could be broken. A major pillar of the old social contract could be replaced.

Securing property rights is a pillar of the new cryptographic governance. Projects like Factom are attempting to show the blockchain can be a substitute for government agencies in the developing world, functioning as the final word on property ownership without risk of corruption or alteration.
Similarly, other projects are being developed for reputation verification, and still more are revolutionizing how we think of notary and legal systems. Connectivity experiments like Bitnation are seeking to show these ideas can be converged and exercised together, functioning as a sort of alternative governance system enforced through cryptographic protocols and consensus.

With non-state record keeping a reality, enforcement mechanisms can be created. But their quality won’t be determined by their geographic origin. They could be competitive, transparent, overlapping systems available globally.

These technologies are still in their infancy. But theoretically, the capabilities are there. As the use of the blockchain and other cryptographic systems grows, they become more secure and reliable. Due to the malleability of the technology, they could also evolve greater and more useful capabilities over time.

What Does This All Mean?

As the NSA likes to point out, we live in a rapidly changing world. The legacy social contract is inadequate to protect individuals in an increasingly fluid global information system. The rapid development of technological capabilities that few in any legislature in the world understand are leaving the sluggish legislative process in the dust. Individuals cannot morally be compelled to sacrifice their own right of secure communication of ideas or private exchange of value without submission to a global security state they cannot control. The globalization of information necessitates individuals learn to employ open source, cryptographic systems to define their own social contracts in peaceful terms.

Since private, secure monetary transactions cannot be taxed except with the consent of the participants, this denationalization could expand the shadow economy over time. Advocates of cryptography can probably expect a backlash, including bans and even jail time in some parts of the world.

Ultimately, this experiment will likely prove that consent in democratic societies has always been manufactured. Locke twisted himself into knots trying to shoehorn the notion of consent into his Social Contract, an exercise largely abandoned by John Rawls and other modern theorists. But the new cryptographic governance introduces the possibility of real consent in governance for the first time. This could ultimately exonerate John Locke’s contributions to political thought.

There is a palpable inevitability to all this. Even major publications like the New York Times and The Atlantic have hypothesized the obsolescence of the nation state. The United States National Intelligence Council envisioned that in just 15 years a “nonstate world” could exist in which “governments had given up on real reforms and had subcontracted many responsibilities to outside parties, which then set up enclaves operating under their own laws.” Nonstate systems will likely develop increasing leverage to compete with legacy nation states. The New York Times acknowledged the scenario describes “much of how global society already operates.”

The real question is how difficult this transition will be. Most states around the world abhor any loss of authority and are likely to prohibit any capability they consider a threat. Bitcoin and other cryptographic technologies have been in their sights. In doing so, they drop any pretense of moral authority and act merely as animals in Locke’s “state of nature,” fighting more for self-preservation that the protection of natural rights. For the first time in history, a real social contract is a possibility within reach. We’d do well not to squander it.

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]

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.