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Computers, Privacy & the Constitution
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The Grand Inquisitor Meets Free Information“In the end they will lay their freedom at our feet, and say to us, ‘Make us your slaves, but feed us.’ They will understand themselves, at last, that freedom and bread enough for all are inconceivable together, for never, never will they be able to share between them… They will marvel at us and look on us as gods, because we are ready to endure the freedom which they have found so dreadful and to rule over them—so awful it will seem to them to be free.” When the Grand Inquisitor in Dostoyevsky’s The Brothers Karamazov condemns Christ to the fires for having himself condemned mankind to freedom, those of us who look to throw open the cloistered doors of technology and intellectual property --- that is, to make free-as-in-freedom software and to loosen if not lose the property rights that have accumulated in ideas--- must remember that it is the flame of our auto-da-fé, too, the old priest is stoking. The closing of technology and the privatization of thought represents to many the immoral exclusion of some human beings from the world “intellectual work(s) of beauty and utility” when it is now possible to provide “all the human value of every increase of knowledge” to everyone for virtually nothing. This divide, this terrible imposition of caste where it does not belong and need not be, may well be the central crime of our age. But bridging this gap means more than simply overcoming those “owners of culture” who cling to their entrenched interest in the old world. We must overcome also the natural resistance residing in the very world we seek to change, for information may want to be free, but it isn’t so clear that people always do. The problem of spurning freedom is not at all unique to the technology and intellectual property context, but Dostoyevsky suggests to us that it may be particularly acute here. The Grand Inquisitor taunts Christ: “There are three powers, three powers alone, able to conquer and to hold captive for ever, the conscience of these impotent rebels for their happiness. Those forces are miracle, mystery and authority.” It is precisely these forces that closed source technologies so perfectly harness. Why would a man look beyond the black box of his cell phone, the impenetrable wall of his computer, when their function is alternately magical and miraculous to him? These things are as impenetrable to him as the rituals of his Church, which he knows to be of unquestionable authority. There is fear, too, in attempting to look beyond the black box. The Grand Inquisitor says: “Freedom, free thought and science, will lead them into such straits and will bring them face to face with such marvels and insoluble mysteries, that some of them, the fierce and rebellious, will destroy themselves, others, rebellious but weak, will destroy one another, while the rest, weak and unhappy, will crawl fawning to our feet..." If this true, man may not easily accept a free information world. What then, is the answer, if the Grand Inquisitor is right, if man will either himself destroy the freedom we offer or spurn it, finding it awful? One meta-answer, provided by Dostoyevsky’s novel, is merely that we offer freedom anyway. (The Grand Inquisitor may condemn Christ, but The Brothers Karamazov doesn’t, at least not entirely). Indeed, in the end, the Grand Inquisitor releases Christ before he is killed, but despite having saved him, the priest does not repent of his condemnation: “The kiss glows in his heart, but the old man adheres to his idea.” But if our aim is to have people take not merely what we offer but indeed own what is already theirs, then we must address the Grand Inquisitor’s charge more directly than to merely point the way to freedoms that may in turn be freely spurned. Another solution may be contained in the Grand Inquisitor’s charge itself. Men, he says, can have either freedom or bread, but not both, and accordingly they will always choose bread. But just as technological contexts may be particularly susceptible to the rejection of freedom, so too might they carry with them their cure, for “(i)f Rome possessed the power to feed everyone amply at no greater cost than that of Caesar's own table, the people would sweep Caesar violently away if anyone were left to starve.” It is perhaps only in the universe of the mind and machine that we are able to produce unlimited bread. No one must go hungry in a world of ideas, and so it seems that free-as-in-free software and the sweeping away of the ownership of knowledge may answer the charge the Grand Inquisitor levels. If man can have “freedom and bread enough for all” perhaps he may finally be convinced to accept both. Merely abolishing private property in ideas will not necessarily result in man’s acceptance of his own freedom, however, though it may nudge him along that path. Coming to offer the “curse of the knowledge of good and evil” as anyone who seeks to upturn to social order does, means also that we must be careful to not merely install ourselves in the Grand Inquisitor’s shoes: Man does not live by bread alone, and if all we offer him is a different loaf, there will have been no worth at all in our endeavour. But if we can ensure that the bread of free-as-in-free ideas and technology are not divorced from freedom itself and allow that there is, indeed, enough for all, then we may see the coming of the day in which “(a)ll that is solid melts into air, all that is holy is profaned, and man is at last compelled to face with sober senses, his real conditions of life, and his relations with his kind.” -- DanaDelger - 04 May 2009 Dana, I think this is a fantastically well-written piece, and I very much enjoyed reading it. I think you very poetically describe the challenge presented to most of humanity to deal with the uniquely new problem of non-scarcity. I was, however, unsure about what point you were trying to make with the piece from a legal perspective. I think this piece would fit in very nicely with LawNetSoc, but I am less certain of the Constitution/Privacy angle. Is your point that once people accept the technological and intellectual empowerment made possible through digital distribution of knowledge they might begin to question the authority that seeks to limit and control those means of distribution? Are you suggesting that this might lead to a new political order capable of recognizing the legal path not chosen? How will the state react to the public's assertion of itself? You seem to say that once man is accustomed to the freedom of ideas, he will be able to feed himself, but what if the state demands authority to monitor this free consumption? Still, a very nice paper. -- RickSchwartz - 04 May 2009 Rick, Thank you for the critique, as much as for the compliments. Your point is entirely well taken. I’m not directly (or indirectly) addressing a Constitutional or privacy concern in this essay. I just happened to be thinking a lot about ¬The Brothers Karamazov this term and felt there were some interesting textual and philosophical links between the Grand Inquisitor’s tale and free software/free information, which, to be perfectly honest, I just wanted to take this opportunity to explore. There really isn’t a necessary legal point to take from the essay, though I appreciate your valiant attempts to draw one out. If I am making a legal point, it is merely that laws that restrict freedom may not represent an unnatural imposition on man, but perhaps instead reflect his inherent desire to submit--- to give up the terrible burden of freedom. (Note I do not believe, nor I hope, suggest in my essay, that freedom is anything other than a necessary condition for life. I just want to point out that man does not always want it, even though he should hold it above all else). You asked if my point was “that once people accept the technological and intellectual empowerment made possible through digital distribution of knowledge they might begin to question the authority that seeks to limit and control those means of distribution.” I appreciate the question and the necessity of you posing it, since I didn’t make a direct legal point in the essay, thought I’m not sure it’s quite right. I will say that I think, to the extent my essay makes or suggests a “legal” point, it is that the legal structures in place for distribution and control of knowledge are not necessarily artificial constructs, imposed from “outside.” Men are the fuel for the engine of the law, and it may be man’s desire to pass his freedom (and responsibility) to another (in our case, the owners of culture as defined by the law) that actually maintains a system which may seem unfair. The system couldn’t exist without our submission. You ask also if accepting freedom might lead to a new legal order. I think it might, but my hope was to point out that perhaps the biggest obstacle to freedom is the not the “state” writ large that you discuss, but men themselves. Thank you for pressing me on these points, however; it can be difficult as a writer to signal both the scope and “point” (within a class structure) in such a short essay. Those things said, I certainly could have written a piece about the relationship of Grand Inquisitor problem to privacy and freedom (though it is clear that this not the piece that I wrote). We easily see the Grand Inquisitor’s rhetoric, for example, in the post-9/11 discourse about balancing freedom and security. How “terrible” freedom seemed to many when it appeared (falsely) to come at the cost of safety, and how easily people gave their freedom up in favor of having “security.” There is also an interested related Constitutional question, which is the question of what sort of Constitution, exactly, ours is. Does it speak to the better angels of our nature, coming as “Christ” to deliver freedom, unbidden or not? Or does it (can it, should it) reflect instead what also seems to be a part of our nature, that desire to submit, to give up our freedom in favor of other gains? In many senses, the document does both, serving as it does as a tightrope between the rights of the individual and the state. How it this balance should play out may depend in part on how we answer the Grand Inquisitor’s charges. I hope that was responsive to your concerns. As I said, you are right that this essay itself isn’t directly aimed at the topic or title of the class, but I hope at least that the questions it poses resonate also in the subject matter we’ve discussed in class. -- DanaDelger - 05 May 2009 I will echo Rick's sentiments: this is a great piece of writing. If anything, the challenge of the Grand Inquisitor seems even more poignant in the context of privacy. Right now, we are free (though not all equally able) to learn and know everything that we can about each other. What is the responsibility that comes with that freedom? Should this be a freedom we willingly surrender, if not because of the any individual burden on those who possess it, then because of its collective burdens on society? Where privacy is concerned, there is both a freedom to know and a freedom to remain unknown that seem to be in tension. Any resolution would seem to call for part of one freedom to be voluntarily surrendered so that the other can be seized. Any privacy laws will be(are) a voluntary surrender of one form of freedom for security--not necessarily security from the outsider, but rather security from the state and from each other. I think the Constitutional question you pose is fascinating. But I am hesitant to agree that freedom imposed paternalistically can ever be a good thing. Perhaps in the realm of knowledge and ideas, people spurn the freedom to learn for all the wrong reasons. But that very act of rejection is also an affirmation of freedom, is it not? Nudging may be acceptable where the end of scarcity means there's no longer a need to choose between freedom of bread, but, where privacy is concerned, we're not dealing with non-scarcity conditions. The Constitution isn't about balancing the rights of the individual and those of the state. The state doesn't have rights. It has powers meant to preserve the rights and obligations of individuals with respect to each other. As a social contract, it's an agreement by all to a certain degree of submission in return for (hopefully) greater freedom. I wish I could capture my thoughts on this topic a bit more faithfully in words. The question of what implications the Grand Inquisitor's charges have for understanding privacy and for constitutional interpretation strikes me as a very worthwhile topic for further discussion. -- AndreiVoinigescu - 05 May 2009 I'm interested in the novel's solutions to the problem posed here - that man doesn't want freedom because the choice to choose burdens him, so he has passed that choice/responsibility onto the owners of culture as defined by the law. The solutions to this problem are to offer man freedom anyway, and make him understand he can have both bread (security? livelihood? safety?) and freedom. I'm interested in your thoughts on how this could play out - why wouldn't man still be burdened by his freedom, even if he could also have "bread"? Or is implicit in the rejection of freedom the fear that freedom means giving up "bread"? -- ElizabethDoisy - 09 May 2009 This is great stuff, Dana—interesting and well written. I wonder, however, if Dostoyevsky subtlety offers another way out of the impossible choice between freedom and bread posed by the Grand Inquisitor. Perhaps the real reason the Grand Inquisitor saw Christ a threat was not because he condemned mankind to freedom, but because Christ resisted the Inquisitor’s false dichotomy of choosing either freedom or bread: Christ chose neither-- he chose sacrifice instead-- and that was his sin. That is why he was consigned to the flames. So, interestingly, Christ’s choice might offer a third and really only possible solution to our technological challenge: rejecting the Grand Inquisitor’s dichotomy, for that is how true freedom is achieved— thus Christ was set free, escaping the flames. In Crime and Punishment, Raskolnikov faced a similarly impossible choice between jail (or physical imprisonment) and freedom; yet neither seemed to give him want he needed, which was salvation for his sins. But Raskolnikov learned this, too, was a false dichotomy: freedom from physical imprisonment was a “false” freedom because he would be free of physical constraints but imprisoned within his guilty consciousness. In seeing beyond this dichotomy of (false) freedom and physical imprisonment, Raskolnikov found salvation through sacrifice-- freedom of consciousness through responsibility and punishment. Following Dostoyevsky’s lead, to achieve salvation we need to reject the Grand Inquisitor’s mythology and choose true freedom, which you hint at: technology has the power to provide unlimited freedom and unlimited bread. The next step, then, is sacrifice and accepting responsibility for our sins. What might those be? That really is the most difficult question; but also the most urgent: Dostoyevsky’s fire is not purifying but damning and eternal. And, I guess, so will our privacy and freedom if we don't get it right. -- JonPenney - 11 May 2009 To Liz and Jon: The way I read the parable, I think you may be putting too much emphasis on a literal interpretation of the bread/freedom dichotomy. "Bread" in the grand executioner story represents what Dostoyevsky calls miracle - "But see Thou these stones in this parched and barren wilderness? Turn them into bread, and mankind shall run after thee like a flock of sheep, grateful and obedient, though forever trembling, lest Thou withdraw Thy hand and deny them Thy bread." The miracle is both the providence of the bread AND its miraculous nature; man is neither intended nor required to understand its creation. In the context of the story, I read the bread (physical security, etc) versus freedom dichotomy posed in the initial quote as intended to be false and superficial: both the Grand Inquisitor and Christ know that there will be bread in either case. The true dichotomy the Inquisitor is proposing is between miracle and freedom from miracle, divine care and human responsibility. The question is not whether there will be enough bread, but whether the greater part of mankind is strong enough or willing to bear freedom from the miracle of its providence. In this context, it seems to me like Dana is asking the important question, and one that I feel is deeply relevant to the class. Our solutions to the problems of privacy and authority on the internet have largely fallen either into a category of miracle (providing solutions that give people "bread" without requiring them to think too deeply about the providence of the gift), or into requiring an acceptance of the responsibility of freedom (asking them to use encrypted e-mail, or to not use phones with proprietary operating systems). The parable of the Grand Inquisitor asks if people will ever willingly accept the latter, and if we choose the former, are we really capable of "giving" freedom, or are we simply replacing one flavor of miraculous providence (read: facebook) with another? -- TheodoreSmith - 12 May 2009
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