[linux-elitists] Eben Moglen: The Encryption Wars

Eugene.Leitl@lrz.uni-muenchen.de Eugene.Leitl@lrz.uni-muenchen.de
Fri Dec 15 11:48:36 PST 2000

(((long, but worthwhile. kindly ignore the "factoring primes" oopsla)))


       Immaterial Incorporated-Cabinet

Complete transcript of interview with
Eben Moglen: The Encryption Wars,
Part I

JAY WORTHINGTON: There's a tone of exhortation that seems to run
through your writing on encryption- do you see a civic obligation to
encrypt on the part of people making use of the internet, e-mail,
digital communications generally?

EBEN MOGLEN: I guess. This was particularly true during the state of
affairs in the fall of 1998, when I gave a talk at NYU called "So Much
For Savages." There was then a feeling that the United States
government might actually continue export controls, and that it was in
that sense people's civic responsibility to take advantage of the fact
that the controls no longer rested on any technical basis at all and
that the attempt of the American secret world and other secret police
around the world to slow down the end-to-end encryption of the net was
no longer a process over which they had actual control. The hypothesis
of "So Much For Savages" was essentially that the determination of
whether to make an end-to-end encrypted internet now belonged to the
members of the internet community. If they used the publicly available
tools, like SSH, they would in effect up the total level of encrypted
traffic in the net to the point at which by mere volume alone, without
regard to the quality of the algorithms being used, a lot of the
traditional listeners would have lost their ability to listen.

WORTHINGTON: What density of encrypted traffic is necessary before
mail in an envelope doesn't stand out from the postcards? At what
point does encrypted traffic stop standing out against the background

MOGLEN: It depends on whom you're thinking of counteracting. As the
Europeans have been aware, which was what this year's Echelon
controversy has been about, the U.S. has been essentially the empire
in charge of who got what in the global telecommunications
structure. The carefully farmed out approach to that which Echelon
represented for voice traffic, in which everybody had the right to
declare some keywords, but only the U.S. had control over the keyword
dictionary and there were a lot of intelligence services around the
world providing local collection for U.S. keywords that they couldn't
actually see.  That structure no longer seems likely to survive. The
Americans will continue to try and take everything, but they will be
on a more realistic basis with their foreign listener
competitor-cooperators.  The Echelon mess will eventually develop into
some European recognition that they're not going to give all the voice
traffic on the continent away to the Americans. This in mind, if the
net were 30% encrypted, it would be more than sufficient to overwhelm
the collection and analysis capacities of everybody except the

WORTHINGTON: That's the sort of density where you would have to go
fairly far down into the spectrum of casual users.

MOGLEN: Well, it depends. The people who are interested in
transactional security now have SSL in the browsers of consumers, and
they count upon it's being there. It's weak encryption, and they use
it a lot less than they could, but just upping the total amount of
encrypted data, all by itself, makes things more confusing. With
respect to anything, you've got to decrypt to figure out what it is,
and therefore this pure keyword approach to wading your way through
the world's interactions becomes unusable. You've actually got to do
traffic analysis in a way which allows you to decide what to decrypt,
in order to find out if the keywords are there, instead of purely
seining all the information flow in the world looking for words which
is effectively how the system has operated up until now.

WORTHINGTON: It does seem the only way today that Louis Freeh could
have plausibly suggested simultaneous monitoring one percent of all
the telecommunications traffic in the United States.

MOGLEN: That's right. But it is absolutely true, as you suggested,
that unless the dominant operating used by almost everybody affords
them real session security through an SSH-like client that simply
routinely encrypts what comes in and what goes out as they are typing
keys to remote computers we're not going to have gotten to where we
need to go. "So Much For Savages" then was an advertisement, and a
thought experiment, and a fundamental point about how things then
stood, in the period after there was a defacto recognition that strong
encryption was everywhere but while the United States government was
still controlling, through export controls, some nominal extent of
cryptography in this society.

WORTHINGTON: The export controls were lifted in the fall of '99?

MOGLEN: That's right.

WORTHINGTON: Do you think that's a battle the government has given up

MOGLEN: Well, I don't think their answer is there's nothing we're
going to be able to do about it. But the answer is we are no longer
attempting to delay the adoption of strong encryption technology by
United States export controls. You'll notice that last night they took
the error out the GPS.

WORTHINGTON: So Iraq is now going to be able to target its cruise
missiles precisely on top of the Washington Monument and not 50 meters

MOGLEN: Yes. The military says they will continue to provide wrong
information in just those places that are absolutely important, but I
don't think that means the White House or the Washington Monument. I
think that means missile silos in Montana.

WORTHINGTON: Do you think, ten years from now, we'll see maps
published showing the version of the United States that's being
released now, with these abrupt transitions from crystal clarity to

MOGLEN: Mapmaking is a very interesting subject in general, because
when everybody in the country is carrying GPS equipment, one kind of
mapmaking that will be absolutely possible consists of the whole
structure of what we think of as free data. That is to say - people
voluntarily walking around with GPS equipped cell phones donating the
stream of their information to a mapping database which will be a very
accurate map of everywhere all the time. Every bridge, every road,
every place in the country will be repeatedly measured by people
moving around with GPS equipment.

WORTHINGTON: Have you heard of any project like this today?

MOGLEN: I'm not aware of any. But you can see that it will happen,
because that data stream will exist, and there will be a kind of
decentralized geographic information service structure, but I don't
think anybody has yet thought about what will happen. You have lots of
people thinking about it from a commercial point of view - Pizza Hut
guys wondering how soon they'll be able to advertise to you on your
cell phone where the closest Pizza Hut is.

WORTHINGTON: It sounds like you were going in more of an open-source
direction, though.

MOGLEN: That's right, and indeed, lots of open-data possibilities of
all sorts exist out there that we will begin to see.  But like a lot
of free-software activity, this organizes as people perceive the need
or the possibility. It doesn't organize ahead of that perception. We
get, in our world, accustomed to the idea that what people think is
neat, or needed, they'll do. As the net makes possible various kinds
of collaborations that have never been possible before they'll do
things, collaboratively, in new ways. Part of what I'm trying to do is
understand what the political economy of a world full of that kind of
content sharing is, and this is just one tiny little example of such a

But let's return to encryption. Yes, it's correct, the United States
government effectively resigned from certain kinds of control
activities over the course of the past year. That represents the end
of Phase I of the crypto wars as I knew them Phase I of the crypto
wars was a public law controversy about government control over
cryptography.  Phase II of the crypto wars begins now.  It began with
the DVD case at the end of last December. It constitutes a private law
controversy over cryptanalysis in which what people are attempting now
to control is other people's ability to understand encryption, where
previously, in round one, a public law controversy was fought over
constitutional and other public law rights to encrypt things. So we
have now moved quite sharply from one stage to another stage over the
controversy about encryption in society. The leading forces against
encryption and cryptography were policemen and spooks, and over the
course of the past ten years, from the moment that PGP was distributed
on the net until the government's change in regulations late last
year, we were effectively in an environment in which the question was
were people going to be allowed to keep secrets or were cops and
spooks going to be able to control the development of the technology.

That question has now been answered. If the NSA can develop quantum
computers, if this, if that, if somebody figures out a way to factor
prime numbers... something might destabilize this new environment in a
deep way, but as things now stand, cryptography wins over
cryptanalysis in civil society for one set of applications, which is
the maintenance of privacy in personal communications, and that will
have a series of social consequences, some of them which we
individually don't love, or do, but it will have a series of definite

WORTHINGTON: What's your quick list of these consequences, good and
bad? You seem to see a possible divide between the international and
the domestic consequences of encryption.

MOGLEN: Well, at least I've wanted to point out to people that when
you do this social accounting, you can't treat it as though all of us
live in Lake Forest, Illinois. Some of us live in Baghdad, or Beijing,
or various other places, and in those other places the balance of
power between civil society and government is quite different from
what it is in the United States and the social accounting is
different. So, yes, the Iraqi gulag, or the Russian gulag, will be
more difficult to erect in the 21st century. You can still have an
empire of fear, but you have to base that empire of fear more on
networks of personal surveillance and informers than on the
interception of communication.

WORTHINGTON: And domestically?

MOGLEN: Well, the right of anonymity, which people are beginning to
see they might have some stake in, and what we now call privacy, by
which this time we mean control over personal information, both depend
upon encryption based solutions. If we are going to have the ability
to read what we want without being surveilled in reading it, that's
because we are using agents to do our reading, which are
unidentifiable and which restore content to us in an encrypted
stream. That's how we get around people who establish surveillance
blockages or interception points to find out what we're reading and
whether we're paying for it, doing something seditious because of it,
or just looking at naked people, or whatever.  Our ability to behave
anonymously on the net, and our ability to control the flow of
information about ourselves both depend on our ability to encrypt what
we do.

WORTHINGTON: At the same time, encryption is at the heart of the
current mechanisms for extracting revenue from copyrighted streams of
information on the net.

MOGLEN: That's precisely why we now find ourselves in disputes over
whether cryptanalysis can be controlled by intellectual property law
as cryptography was controlled by arms-export law.  What we face in
the DVD case and in lots of other conceptual or actual situations -
CyberPatrol, for example - is a claim that interfering with the
secrecy of other people's content, which in itself creates the
possibility of copyright infringement, is somehow sufficient basis on
which to abate the cryptanalysis technology altogether. It is not
proven in the DVD controversies - nor will it be proven, since it is
not happening - that somebody is actually pirating movies off DVDs
using DECSS.  That's not what happens. Recovering 5.7 gigabytes of raw
video and audio data on a hard drive is not a first step towards
commercial piracy of DVDs. The way commercial piracy of DVDs goes is
bit-by-bit copying in a mass presser plant, and that's why movies are
cheap in Thailand. It's got nothing to do with all this DECSS stuff.

What we have is an environment in which rather than thinking about
government control over whether we can encrypt, we are now thinking
about private power control over whether we can decrypt without
permission, and that's a different war, with a very different legal
feeling to it. It has a very different public feeling. The eight
largest movie studios in the United States can, paradoxically, spend a
whole lot more money litigating these questions than the United States
government could ever spend litigating the export control
regulations. It's a paradox of the way the U.S. government works that
the secret agencies spent hundreds of millions of dollars building
Echelon and all the rest of the interception gear, but when it came
down to defending the export controls over encryption in the federal
courts you had a couple of assistant U.S.  attorneys. You had lots of
FBI agents and lots of NSA guys hiding in the shadows, but no
lawyers. They couldn't do scorched earth, bury the other guy, spend
him into surrender litigation against Bernstein when he challenged the
export controls, but when it comes to a Norwegian fifteen year old and
the eight largest movie studios in the world, you can imagine that the
shape of the legal confrontation is much more difficult.

WORTHINGTON: And do you think the lines here are as clearly drawn?

MOGLEN: No. What we have here are two different structures of the
distribution of cultural product. You have a set of people whose
fundamental belief is that cultural products are best distributed when
they are owned, and they are attempting to construct a leak proof pipe
from production studio to eardrum or eyeball of the consumer.  Their
goal is to construct a piping system that allows them to distribute
completely dephysicalized cultural entities which have zero marginal
cost and which in a competitive economy would therefore be priced at
zero, but they wish to distribute them at non-zero prices. In the
ideal world, they would distribute them at the same prices they get
for physical objects which cost a lot of money to make, move and sell,
and they would become ferociously profitable. They are prepared to
give on price, but at every turn, as with the VCR at the beginning of
the last epoch, their principle is any ability of this content to
escape their control will bring about the end of civilization.

This is an absurd claim. Nobody believes it but studio executives. My
students are beginning to believe, to my shock, a communist thing -
namely, it's our music, and how dare they take it away from us - which
is an enormously important and suggestive development.  But, the
theory of commercial distribution of proprietary culture is not a
theory that one can say people have a duty to resist. I'm not at the
Abby Hoffman "Steal this Book" level.

But there is, of course, an alternative economy trying to grow
up. With respect to software, it's happened already. With respect to
software, it's already been demonstrated that in the real world in
which we live, zero-marginal cost products that are collaboratively
developed in the net and that have measurable functional
characteristics - so that one can say, in an objective way, this is
better or worse - are better produced anarchistically than they are in
a proprietary mode. This is what the development of GNU, Linux, and
all the rest are about. You can have more people doing more work,
contributing more rapidly, fixing more bugs at the point of discovery,
and you have Lamarckian evolution of software so that all favorable
characteristics are inherited and therefore you get very rapid
development. That's why the development curve on free software
products has been so staggering to commercial producers who didn't
know how these things could have roared up out of nowhere.

This is the hypothesis of "Anarchism Triumphant" and part of what I'm
writing about in "The Invisible Barbecue." We're going to have a
competition in certain sectors of the economy between property and
non-property production and non-property production is going to
win. But the same can't be said when the goods are not functional and
there is not an objective evaluation of betterness or worseness, and
where the level of collaboration in production is less. We will see
art forms in the next generation that are just as collaborative in
production as software or free-data goods are, where thousands of
people have collaborated on something, but many, almost all, of the
traditional art forms are produced by a comparatively small number of
people in direct contact with one another. In such a world, I
maintain, there's no inherent reason why non-property production
drives out property production. In this world, however, non-property
distribution drives out property distribution, and the reason is
simply that non-property distribution propagates at the speed of
personal recommendation.

WORTHINGTON: Assuming decryption.

MOGLEN: Absolutely. Non-property distribution assumes music you can
copy as many times as you please and give to whoever you want,
changing it however you like.

WORTHINGTON: And how are producers compensated? Through the kinds of
informal systems and prestige that commentators have observed in the
free software movement?

MOGLEN: They may very well be, and we have to ask how the producer
gets paid, but at the moment we can understand that the distributor
who wants to do the same thing in a property way will fail. The market
will saturate with non-property distribution. This is what the music
industry is afraid of, with respect to Napster and Gnutella and so on.

WORTHINGTON: Unless people are willing to pay for certain proprietary
content that can be defended.

MOGLEN: Absolutely. The point is only that the distribution structures
have an advantage when it is free. But because the free production
structure has no advantage, there's nothing to prevent Warner Brothers
from making better music than a garage band that gives it away for
free. Lots of people could prefer one, or lots of people could prefer
the other. So, if there were no attempt to make what I would call
monopolistic decisions, there's no end in sight to the coexistence of
the free cultural properties market and the non-free, proprietary
cultural properties market. They would exist independently of each
other for the foreseeable future.  What is happening now in the
lawsuits against MP3 and Napster, the content industries are saying
that you're not allowed to have a non-property distribution
structure. The reason you're not allowed to do this, they're saying,
is that even if you have non-property goods to distribute in it, the
mere fact that you could also be distributing proprietary goods
through such a structure means that the whole structure is
contributory copyright infringement and should be suppressed.

WORTHINGTON: What do you think will be the long-term outcome of that
particular struggle?

MOGLEN: You'd have to put every teenager in the world in jail, and you
can't do it. I published an op-ed piece in the Harvard Crimson last
week addressed to that audience, and I said "Isn't it interesting that
here are these companies that do business all over the world selling
to young people, and now they're suing, jailing and harassing them."
How can you keep on like this?  You can't alienate your
customers. What is the Mattel toy company going to do when children
don't like it?

WORTHINGTON: Will customers actually make buying decisions with their
social and political interests at heart?

MOGLEN: At the moment, all over university campuses, two things are
going on: students are demanding that the sweatshirts sold in the
bookstore not be made in sweatshops, and they're using Napster. I
think the answer to your question is pretty clear - yes, they will put
their behavior behind their attitudes.  How far?We don't know. Could
it really develop into a kulturkampf between Disney on the one hand
and its consumers on the other? No, because Disney is not an idiot. It
cannot actually forfeit the goodwill of its consumers.

WORTHINGTON: What if Disney targets, not its customers, but the
programmers who make Napster possible?

MOGLEN: But, in the end, of course, that turns out to be the
customers. The problem here is that the people who have made free
distribution systems have not used free software to do it, and this is
the difference between Napster and Gnutella. Once the free
distribution structure is free throughout; the software is free; there
is no centralized server anymore; there's no point of contact between
Disney and the distribution system it is attempting to suppress,
except the consumers who constitute the distribution system, so that
after a while you'd have to attack the consumers, because the
consumers are also the distributors. We've disintermediated the
distributors out of the story. Now that happens with respect to
zero-marginal cost goods throughout the economy. In the world where
music has been subjected to a free distribution structure, there are
only musicians, listeners, and people who try to get in between
musicians and listeners who we used to refer to as facilitators,

WORTHINGTON: And people who write the free software that makes this
distributed network of relationships possible.

MOGLEN: Absolutely. All of this depends upon that.

WORTHINGTON: Are there ways for the proprietary distribution camp to
make that now formless element something tangible, something that they
can approach or attack?

MOGLEN: What we are going to see is a strong part on the part of the
content industry to attack free software centrally. In the pipelines
they're trying to build, the switch between their pipe and your eyes
and ears, your computer is the weakest link in the chain. You control
the operating system kernel of that computer, and if you control that
operating system, then you can say, "Hey. On the way to the sound
card, drop this where I want it put." You have decrypted the
content. You're at the last stage before the noise emerges into air

WORTHINGTON: So the real civic obligation is to download Linux?

MOGLEN: The real civic obligation is to use free software. That's

WORTHINGTON: How do you proselytize that?

MOGLEN: If you're a capitalist and you have the best goods and they're
free, you don't have to proselytize, you just have to wait.

WORTHINGTON: How long would you say Linux has been the best good? Five
years? It seems like there's a whole world of consumers out there who
don't feel themselves capable of judging whether Linux is a better
good at all.

MOGLEN: There are two possible ways of thinking about this
question. One is, how long does it take the current user base to get
to free software, and the other is how long does it take the current
user base to be replaced by another user base. It's a transitional
issue. In 1979, when I was working at IBM, I wrote an internal memo
lambasting the Apple Lisa, which was Apple's first attempt to adapt
Xerox PARC technology, the graphical user interface, into a desktop
PC. I was then working on the development of APL2, a nested array,
algorithmic, symbolic language, and I was committed to the idea that
what we were doing with computers was making languages that were
better than natural languages for procedural thought. The idea was to
do for whole ranges of human thinking what mathematics has been doing
for thousands of years in the quantitative arrangement of knowledge,
and to help people think in more precise and clear ways. What I saw in
the Xerox PARC technology was the caveman interface, you point and you
grunt. A massive winding down, regressing away from language, in order
to address the technological nervousness of the user.  Users wanted to
be infantilized, to return to a pre-linguistic condition in the using
of computers, and the Xerox PARC technology's primary advantage was
that it allowed users to address computers in a pre-linguistic
way. This was to my mind a terribly socially retrograde thing to do,
and I have not changed my mind about that. I lost that war in the
early 1980s, went to law school, got a history PHD, did other things,
because the fundamental turn in the technology - which we see
represented in its most technologically degenerate form, which is
Windows, the really crippled version. I mean, I use Xwindows every day
on my free-software PCs; I have nothing against a windowing
environment, but it's a windowing environment which is network
transparent and which is based around the fact that inside every
window there's some dialogue to have with some linguistic entity.

WORTHINGTON: There's a command prompt in every window.

MOGLEN: Exactly. And, of course, network transparency, a central idea
of how to organize computers in the world so that what's behind your
window might be a process on another computer is largely gone. The
whole thing represents a very downmarket view of the way people and
machines ought to interact.

WORTHINGTON: Don't you think, in today's world, that it's increasingly
difficult to resist Windows?

MOGLEN: Well, maybe. But the two and three year olds, who've grown up
with computers since the day they were born, and for whom the limited
semantics and even more limited syntax of mouse-frame interaction are
just second nature - my two and a half year old nephew, who has all of
the difficulties of hand-eye coordination and language acquisition
that any two and half year old has, he's absolutely comfortable moving
a mouse around and looking at a pointer on the screen, and he can do
30 or 40 interactions on the screen per minute. All of that is natural
to him, and he's two and a half.  When he's fifteen, is he going to
want to use an operating system he can't change? The idea that he
can't get under the covers after a whole decade and half of life with
computers, he's just got to accept that they're as formlessly,
seamlessly, totally incorporated, with nothing for him to do as his
father's Oldsmobile? That's just not the way society is going to
exist. The number of people who are going to demand to control their
environment is going to be very large.

WORTHINGTON: You mean demanding to have access to their source code,
tinker with it, and share it with others? Is that how you're defining
controlling their environment?

MOGLEN: Absolutely. In the same way, kids, boy kids particularly of
course, they wanted the engines of automobiles to be malleable.

WORTHINGTON: What fraction of Americans actually knew how to tinker
with the insides of their cars?

MOGLEN: The answer would be an interesting one. I don't know, but it's
an important question in the historical sociology of the American
relationship to the automobile. At that moment after the second world
war, when a high school to factory attitude prevailed about where the
good working class life was, what proportion of those kids - mainly
boy kids - grew up messing with automobiles?

WORTHINGTON: That's the question you'd ask in a different form today.

MOGLEN: Yes, you would. And you would say, it's not going to quite as
much a boy thing, but it's already too much of a boy thing, and the
level of sexual dimorphism in this is interesting to observe and to
think about and do something about. But, look at the life histories of
a bunch of the people you come across when you occupy this beat -
people like Stallman and Gillmore.  Stallman and I met when he was
nineteen and I was sixteen and we sat at adjacent desks in Westchester
county working for the same timesharing company, and with two other
guys we were writing what I believe was the first networked e-mail
system in the world.  What I see when I look at guys in our
generation, we are now in our 40's, we were kids who grew up in an
environment where we were programmers - not of video games, but of
really heavy stuff - we were youngsterswho were allowed to work in
ways that youngsters are not now allowed to work because the whole
industry is professionalized to the point where you can't get in
without some of the same kinds of credentialing that you get into any
other business with.

We grew up in a free-software world.  We shared everything. We worked
in an environment where the source code to our mainframe operating
system was given away. It wasn't that IBM didn't claim to own it, but
they shared it with their customers so that everybody could improve it
together. The people who grew up in the culture of the programmers of
the early 1970s, the late 1960s, you see them now at the edges, or
even at the center, of the free software movement. You see them now
trying to bring about some sense of what it is like to grow up knowing
how to program and wanting to be able to make changes and do neat
stuff. I think what we're doing is showing why people will give away
what they do, why they will do what's neat, why they will engage in
making stuff just because they know how to do something terrific. To
respond to your question, I say that the generation of kids growing up
now with computers as standard equipment in their world, they're not
going to lose that feeling, they're going to have that feeling much
more than we did. Now the question is, what are they going to be able
to do with it?

WORTHINGTON: Will we have that world even if children are using
Windows software from birth? I'm inclined to think that a three year
old growing up with Linux, in your story, is much more likely to grow
up into your idealized fifteen year old.

Complete transcript of interview with
Eben Moglen: The Encryption Wars,
Part II

MOGLEN: Well, if you look at the computer science 101 syllabi of
universities in India, Southeast Asia, Indonesia, if you go on the web
and look at these, the CS 101 curriculum in these universities assumes
that people are using a Linux based computer rather than a Windows
based computer. I mean, it's free. So, Singapore and Thailand and
Malaysia are going to produce a lot of young adults who learned about
computers using free software; the computers in their homes are going
to be free-software computers; their children are going to grow up
with free software computers. Which bunch of people are going to be
the talented, engaging, aggressive programmers, busy making changes?

WORTHINGTON: So, culturally, you see the collective decision to use
Windows as one which forecloses the possibilities of generations down
the road?

MOGLEN: Well, it's a decision to have fewer programmers. The whole
point of free is freedom to change, not low cost, and the whole point
of the world towards which we are moving is that the primary power
distinction, the class line, is between those people who know how to
change the behavior of computers and those people who don't. Because
that kind of knowledge, in particular, the ability to interact with
complex technological systems to alter their behavior, is power over
ordinary daily life in a profound way.

WORTHINGTON: So what civic obligations does that leave us with today?

MOGLEN: Well, I don't want to be dogmatic about what other people's
responsibilities are.


MOGLEN: If you want to gain knowledge, you need to know these
things. If you want to convey knowledge, if you want to help other
people learn, you have to help them to know these things. If you want
to be living in contact with the real issues, you're going to have to
know enough about the technology to see where the real issues are. If
we wrote down on a list the eight or the ten most important political
issues in this society at the moment, my guess is that three or four
of them would be issues that you can't understand, let alone have a
good opinion about, unless you know a good deal about technology. If
we wrote down the issues that we feel most nervous about, of those ten
we'd probably find that three or four are places where we think that
people are getting rushed out of the question already, because the
guys who know are racing to lock it up beforeeverybody else figures
out what's going on.

Now, in an environment where both of those things that I have just
said are true, civic duty is to learn what you need to learn in order
to make the decisions in a democratic society in a grown-up
way. That's the same civic duty that Thomas Jefferson or George
Washington believed in. The people who think that we need to have a
democratic society are always people who are worried about whether the
voters who control the society know enough, and it's not a question of
taking power away from them, it's a question of helping them to become
knowledgeable and engaged. We've got a duty to try and explain this
stuff clearly. We've got a duty to learn these technologies so that we
can ourselves participate, and most importantly we have a duty to look
at the educational system to find out whether it teaches people who
grow up in the society what they need to know.

You look again and again at how we educate people about technology in
this society and again and again you see people who've given money to
have their technology taught and to have other's people technology not
taught.  Cisco Systems is a very interesting business, which is now
regarded somehow as the antithesis of Microsoft.  If Microsoft is bad
and weak and vulnerable which it now, suddenly is thought to be, Cisco
somehow is unquestionable. Well, what do they make? They make the
infrastructure of the internet. What is that? We don't know, but we
buy their stock. Cisco is in fact a most extraordinary example of the
paper tiger, a hollow animal. The Cisco world consists of selling at
exorbitantly high prices routers which use proprietary software. So,
in order to know how to program a router you have to know
Cisco-talk. They spend vast amounts of money in junior colleges on
vocational educational systems to teach people Cisco-talk, and those
kids graduate with Cisco certification, they go to work in the
businesses that need network infrastructure, and they install Cisco
hardware. There's a bilateral monopoly between technically,
vocationally trained people, who have learned a proprietary way of
doing things, and a manufacturer which sells goods at very high
markups, because it has a proprietary, secret language.

Now, the router is in fact not a complicated entity. Many years ago we
created, spontaneously, a thing called Linux-router.org, which is
simply a way of providing a Linux kernel optimized for routing in a
very flexible little package that fits on a 1.44 floppy disk, and
routers are in fact throwaway boxes - a strong router is a 100 Mghz

WORTHINGTON: That was a throwaway box five years ago.

MOGLEN: Yes, but I use one as my server. All the web stuff of mine
that you read, all my e-mail, all my electronic courses, the one box
that does all that work for me is a 100 Mghz box with 32 Mg of main
memory in it, and I keep it that way deliberately, in order to make a

WORTHINGTON: I have a 133 Mghz motherboard sitting in a box under my

MOGLEN: It would make a fine server.  One of the fundamentally untold
parts of this story is what the WinTel hard strategic alliance gave
Andrew Grove, who has come out of this beautifully.  Intel isn't being
broken up by the United States Government. But what the WinTel box did
was create a bad, slow, bloated software division for a hardware
manufacturer that needed to keep the market from saturating.

WORTHINGTON: And the way to do that is to continually escalate the
demands created by bad software.

MOGLEN: Absolutely.

WORTHINGTON: And yet in the long run you feel that Windows has already
lost the war.

MOGLEN: There's no question. But the world economy would not
necessarily be better off if nobody needed to buy any PCs any
more. The fact that the hardware market actually saturated with all
the computers we really needed years ago is not really an argument for
why the society would be so much more prosperous if we stopped making

Rather, this is the digital divide problem in a serious way. I made a
proposal to the Israeli government a year ago that went like this:
Take every computer that you threw away in the state last year, just
the ones you scrapped, and put free software on them. They are now the
routers, bridges, switches and e-mail servers for an entire free
broadband network for all of Israel. The only thing you don't have is
the cable. But you have required annual military reserve duty. Take
one cycle and say everybody not performing militarily essential
service is laying fiber, for one year. You are now finished. Free
software, scrapped computers, one year of conscript labor, and the
physical cost of the fiber and you're done. You have a broadband
network in a little, demographically concentrated country with a
highly educated population, and when I talk about building a network I
mean on the West Bank and Gaza too, and then you say this is a
gift. We're leaving this here. This is a little bit of what we need to
do - two states, one network. And you know what, nobody will ever bomb
that network, tear it up or throw it away, because that's how, if
you're in Gaza or the West Bank, you get out to the world. That's how
you free the people you have been chaining up all these years.

Now, after I finished making that pitch, I was leaving the room, and
the chief of one of the computing centers in one of the big
universities turned to one of his opposite numbers and said to him in
Hebrew, 'Oh, these Americans, they're so idealistic. It's impossible.'
And I said, you see, the Zionists are no longer the idealists. It's
the Americans. Now, they'll get there eventually, but as of now,
they're not ready yet. The belief that it could actually happen isn't
there.  They haven't taken a hard look. They don't realize it is in
fact technically possible.

But the truth is, that what the digital divide means, what inequality
of access means now, primarily, is a series of decisions about the
allocation of hardware and software coming home to roost. We have all
the computers we need. We have more computers than we need. Giving
every kid in the country a computer? That's nothing. We're scrapping
all the stuff. And software?  We can provide free software to
everybody. That's no problem. We're built for that.

What we don't have is telecommunications infrastructure that is
free. What we don't have is the time, the online hours. This is why we
need to use the spectrum to create a free net. An uncharged,
birthright bandwidth system.  A chapter of my book which proposes just
that is not yet on the web but it'll get there one of these months. My
proposal is for a simple, birthright bandwidth structure, using just
the current analog television frequencies that under the '96
Telecommunications Act the broadcasters have already promised to give
up. It's good spectrum. It goes through walls very nicely. It does all
the things we need. It needs to be used as though by cell phones, with
little boxes that arbitrage frequency usage directly and intelligently
on a cellular broadcasting kind of model. We could give everybody who
is here 400 megabits of bi-directional bandwidth. I'm sure.  Maybe we
could go to 600. You're not a television broadcaster, but you're a
radio station, and if you and your friends get together, two or three
of you, you can be a television station. My proposal is that bandwidth
is personal to you. It's in a box like your cell phone. You take it to
work in the morning, and you contribute that bandwidth to your
employer. You take it to church, to your clubs, your bowling league,
wherever you go. The idea is that civil society is constituted around
the notion of an equality of access to communications. Everything else
falls out. Old hardware, free software, wireless infrastructure that
belongs to the nation as a whole, which is already required to come
back to us.

WORTHINGTON: Would this bandwidth be inalienable? Would people be able
to buy and sell the bandwidth they're born with?

MOGLEN: Well, my own judgment is that the proposition ought to be that
it's not tradable, any more than you can sell your right to drive on
I-80. There's no market in buying from you your right to drive on the
public highways, and there's no buying from you your right to drink
the municipal water supply. But obviously, you can understand why
people might think in those other terms.  Now Nick Negroponte
recommended years ago what has come to be called the Negroponte
switch, which is to put all the commercial uses for all communications
down on the cable lines and to recover the wireless domain for the
personal communications uses which we now heavily use the cable lines
for. I was listening to a rather right wing securities analyst - as
though there were any other kind - talking about the telecom business
six months ago, and he was talking about the long distance
companies. And somebody said to him, well now they're getting down to
a nickel any time, is there any more air in that?  How could that
price go any lower? And he said, you must be kidding - there's three
and a half cents extra in that five cents, and he said, you know, at
nights and on weekends, the price ought to be zero. And I thought,
man, if the rightwing securities analysts are beginning to talk about
free long distance calls, what's left? We should be living in an
environment in which the recognition is that the building of the
public infrastructure allows us to render connection as completely and
obviously a personal right as driving on the street or walking in the
park or drinking the water or breathing the air.

WORTHINGTON: What do you see as the immediate cultural and political
roadblocks in the way of that kind of a birthright reconception of

MOGLEN: The answer is 'the invisible barbecue,' the way our politics
is owned.  That's the problem. That's why I am writing about a
three-cornered entity - technology, law, and politics, in this age of
corruption. That's what we have.  We're making land rushes. We're
trying to turn everything into property. That's the
conceptualization. The relevance of encryption is that encryption is a
device for turning bitstreams into property, by creating the power to
exclude. When I teach property law, what is it that I am teaching
people about what property is?  The Supreme Court, in an image that it
likes, refers to a stick in a bundle - now that bundle of sticks is
the Roman thing called fasces, this word out of which we get fascism,
it's just a funny little thing that has happened to us, the sticks in
the bundle, like the rods and the axes that meant power in the Roman
symbology of politics - one of those sticks in the bundle is the right
to exclude, and often it is that right to exclude which in capitalist
society is seen as the center of property. I have a right to exclude,
and therefore I can create a market, and out of the market can come
all these other great things. In order to have the right to exclude
from bitstreams you need encryption.

But the whole political structure that we have at the moment, the ease
of getting patents, the giving away of spectrum in the '96 Act to
people who already had spectrum to build an HDTV system that we notice
they're not building, the Federal Communications Commissions
fundamental strategy of permitting duopolies in whole areas of their
traditional regulated fields, so long as those duopolies then go out
and compete in other fields against other duopolies - all these
structures bear a similar sign, which is that everything is for sale
because our politics is for sale, and that the law's power to create
property is now in use in a very heavy way.

Allan Greenspan gives a speech and he says, 'We should beware of
economic regulation and government interference in the
market. Government should limit itself to creating and protecting
intellectual property.' As though that weren't regulation and
intervention in the market. What we have is massive market
intervention by legislators who have the power to create property
rights through law and who are selling it. We can't create a free
anything, because it is ideologically deprecated for things to be
free, and most importantly, because it is politically ineffective for
things to be free, because making things free doesn't bring in
campaign contributions.

WORTHINGTON: And yet you seem to feel that at a certain point, the
functions of these technologies are going to make irrelevant this
legal apparatus trying to enforce this particular conception of
property, because free software and free intellectual property will
simply happen as a result of the increasing ease of communication and
of creating cooperative, information sharing communities.

MOGLEN: Well, what I say at the end of "Anarchism Triumphant" is that
this is the big political issue of the time, and aristocracy looks set
to win. I mean, they're in control. They have all the money; they have
the politics; they have the shape of things to come in their own
view. The force is with them. When I say that there are these reasons
why things ought to be different, I'm talking in the same way that
people were talking in rathskellers in 1848 - I mean, there ought to
be democracy; there ought to be liberalism; there ought to be freedom;
aristocracy ought to go; the ancien regime ought to disappear. Well,
yes and no. Hence, I end with Chou En-Lai talking to Oriana Fallaci,
"What's the meaning of the French Revolution?" she says; "Too soon to
tell" he says. This is a long term question. Are Rupert Murdoch and
Michael Eisner going to prevail in the short term? Yes. Are they going
to prevail fifty years from now? I don't know.

In the long run, what's going to happen?  In the long run, I do not
think that the path is in the direction of they will own more and more
and we will become their helots. I don't think that's what
happens. Martin Luther King Jr. said, "The moral arc of the universe
is long, but it bends towards justice." Now in that same broad sense,
the moral arc of the universe still tends towards democracy, still
tends towards freedom, still tends towards the growth of societies
which enable people to be not under the control of others, either the
rich or the powerful - and in that broad sense, yes, I think certain
things can be said to have the weight of history behind them.

But what kills ancien regimes is not that they are reactionary. What
makes the ancien regime fall is that it is modernizing. This is the
problem of the French in the 1780s; this is the problem of the
Iranians in the 1970s; this will be the problem of the Chinese in the
next decade. When you modernize, when you begin the process of change
and to enable new forms of human growth and expression, there is a
difficulty with keeping those processes under control.  The processes
now being lit as humanity comes into a new relationship where
everybody is connected to everybody else without intermediaries, that
social structure, that condition of massive interconnection that we
call the internet, that changes everything in profound ways. They are
modernizing this regime. They think they are going to control it, that
property relations, legal relations, technology, Lawrence Lessig's
code doing the work of law kind of idea, that all of this is going to
make them stable. But it is not going to do that, in my opinion. It is
going to produce the hunger for the various kinds of freedom and the
various kinds of liberation that the net makes possible, and if they
stand between the people and that freedom, they are going to be pushed
aside. Now, they have money; they have power; they have thought; they
have influence. It does not have to happen to them.

WORTHINGTON: What if it turns out that people are content with the
level of freedom that Windows 2010 provides them? What if some minimal
level of the kind of freedom you're talking about is enough to create

MOGLEN: Of course, in the meantime, in that world of 2010, we've moved
towards being a pay-per-use society for culture. Because in the
meantime, the book publishing industry hasn't stood still. It's
selling e-books per read, and the music industry hasn't stood still;
it's trying to sell you songs per listen. What you have in mind is a
bargain in which we sort of stay the same as we migrate
technologically. When you look at how it really functions -
technologically, politically, economically - we find ourselves moving
in a world in which we can have many different things, but staying the
same is really hard. From the point of view of the copyright
industries, the culture manufacturers, the limited term of copyright
is unacceptable. What Disney went through to keep the mouse from
expiring is just the beginning of that issue. Limited term is not
acceptable. The first sale doctrine is not acceptable. Fair use rights
are not acceptable. In the world of the electronic, absolutely free,
frictionless copy, they need to move more and more towards a control
environment. The traditional balance that lies underneath, that we no
longer think about, where you just hand the newspaper to the guy
sitting next to you when you leave the railroad train - that's not
what they're thinking of, and the logic of the situation compels them
not to think of it. The logic of the situation compels them to all or
nothing solutions, and I think they're going to get nothing instead of

But they are groping. You can see the deal trying to get made, even
now - How do we work this out so we can sell this music for something,
without wiping out our high moral ground position that you should pay
full price and never be allowed to give it to anybody? How do we
facilitate sharing, which people want to do, without giving away the
store? I think that there will be intelligence directed at that. I
don't think all of this is going to be done in a hamfisted and
thoughtless way. Jack Valenti has to die.  You can't go into the
twenty-first century with Jack Valenti as the only face you have,
because nineteen year olds are not going to accept that. There's going
to have to be a different way to do it. They need somebody as good as
Chuck D, and they don't have that yet.  But there will be an attempt,
there will be lots of attempts to find a way.

WORTHINGTON: Won't some kinds of cultural production simply fall by
the wayside in a world of free distribution?

MOGLEN: Of course, but look, the same is true with respect to
pyramids.  Without hydraulic despotism and the divine right kingship
of the pharaoh, we will underproduce pyramids. Now, we've been
underproducing pyramids for three thousand years, and pyramids are
beautiful but it isn't hurting us. Without the Renaissance style of
provisional city-state leadership in Italy that Burckhardt referred to
as the state as a work of art, you don't get all kinds of villas and
palaces. There's nothing for Michelangelo to sculpt. You get a little
bit of stuff for post-modern architects to build, but only if you're
building a Guggenheim museum. Sure, the structure of art and
expression is related to the material understructure of society, you
don't have to be a Marxist to think that.

In a world of really free stuff, I think there would be a lot fewer
Arnold Schwarzenegger movies. I think $100 million movies don't
represent a particularly good form of free stuff.

WORTHINGTON: Any sort of high initial capital cost cultural production
seems hard to justify. Blade Runner probably doesn't get made either.

MOGLEN: Absolutely. On the other hand we're going to have a golden age
of poetry such as the world has not seen in a thousand years. Even
traditional art forms may do very well. The literature for two pianos
is due for an enormous revival. I say, fifteen years from now the
dominant form of two pianos literature is going to consist of one live
and one dead pianist. The whole ability for people to engage in
jamming with Sidney Bechet has only begun to be discussed. What Bill
Evans did in "Conversations With Myself" is going to become
conversations with everybody.  The only problem is that if I want to
jam with Sidney Bechet I can't, because somebody owns Sidney Bechet's
music on record and I've got to deal with them in court. There are
ranges of collaboration; there are new forms of art; there are new
ways of making and delivering everything, including dramatic video,
that will come up, and there are art forms whose names we don't know
yet that are going to happen.  All of that is sure. But you meet
people who say - But if there weren't property then nobody would make
the Flintstones - you have to say, well, what do we get on the other
side? What's the name of all those art forms that we can't have now
and that we will have then?

The social accounting is done in a funny way. You could, for sure, say
that the piano was going to kill off a whole bunch of literature for
the clavichord. Until Keith Jarrett recorded an album of clavichord
improvisations in the mid 80s, I don't think anybody had played a
clavichord on record in decades, and the idea of clavichord
improvisations was deader than Mozart. Of course technological change
changes the forms of art. There's no question about this.  And the
social environment too.  Americans listen to music; they don't make
music. That's a whole profound change in one generation, really, in
the history of music in the world. Music was a thing people made; now
it's a thing we hear. I am a non-maker, listener to music. I have an
enormous privilege, as I see it, to live at the beginning of the
digital era, when music from all over the world is available, before
it has all been homogenized and paved over. I am deeply grateful for
living at the time that I live, but I am product of a world in which,
unlike Mendelssohn making his music at home in the evenings with his
family and his friends, I am a consumer of music. I listen to other
people's music. There's no question, all of the arts are going to be
altered by this. Sure.  We're not scared of that.

WORTHINGTON: Necessarily homogenized?

MOGLEN: There a zillion different things that could happen. The next
great Oud virtuoso may be a fifteen year old Vietnamese girl who has
never seen an Oud and who has never been in the middle east but who is
listening to one of the great, or seven of the great, Oud virtuosi
from the Sudan, and from Iraq, and is deciding to play that thing
herself.  Who knows in which directions all of this goes? I can listen
now to a choral musician from Senegal playing with a Norwegian
vocalist and a mouth harp player. There's Kirsten Braten-Berg's album,
called 'From Senegal to Setesdal,' here we have musicians from all
over the world collaborating in ways that were never really thought
about before.

It isn't necessarily homogenizing, but of course there are forces for
homogeneity doing very well at the moment, and it is their activity in
the net that we are primarily talking about. They are the people who
want to encrypt. They are the people who want to own. The musicians
all over the world looking for an audience, they don't show as their
primary concern that they want to encrypt their music and keep it away
from people. Ownership and homogenization have a relationship to one
another. They're not just casually, contextually found in the same
places.  They exist where they exist for reasons.  The goal of
reaching the mass audience and getting paid for each and every eardrum
is also the goal of homogenizing, to have broad appeal.

WORTHINGTON: It's cheaper if you first standardize the eardrums.

MOGLEN: It's not just cheaper, it's not much of a marketing
opportunity if you don't standardize. That's what the beauty of being
separated from production is. Nike doesn't care how an actual shoe is
made anymore, because they don't make any shoes. They make image, they
make icon. The icon is valuable precisely because everybody knows it.

WORTHINGTON: What kind of penetration does free software, GNU, Linux,
whatever, need to have before these processes start to organize

MOGLEN: It has it now. Whatever the relevant level of penetration is,
it's here.  We're now living in a very odd world with respect to free
software. Under the skin of the beast, free software is
everywhere. The penetration in the server market is nothing to worry
about.  So what we really mean is, what's the difference between the
technologically clued-in and the technologically checked-out? And the
answer is, what they use. How big does the technologically clued-in
population have to be before new ways of thinking about politics and
economics and society take hold? Quite large. But we're going
there. It's like asking, 'What would the opposition to gas taxes in
the United States be like in 1910?" - "Not enough drivers."

We are going to a society which is not this one. We are always aiming
at a moving target. The problem with analysis based on where we are
now is that we are standing in the middle of tidal wave and trying to
figure out how wet we are around the ankles. It just doesn't matter
very much. One of the many lessons I've learned from Richard Stallman
over my years of working with him is that I have strategic views and I
would say, 'Richard, we need to have this. We need to have that. We
need to do this or this or this to meet the current situation,' and
Richard would say, 'What needs doing will get done.  What people need,
what people want, they'll make."

WORTHINGTON: That seems to be GNU's organizing principle.

MOGLEN: That's right, and that's an important lesson. We will get
where we are going when the people who need to be there are around. I
don't know how long that takes. I don't know exactly what the numbers
are. I don't worry that they won't show up, and maybe questions in the
form 'how many' are really questions in the form, 'How do you know
they're all going to show up sooner or later?'

WORTHINGTON: Or the question might be, how do you know there's not
going simply to be a permanent 10%, or whatever percentage, of the
deeply technologically literate, and everybody else? Two years ago, I
corresponded with three people who used PGP - eight years ago I didn't
know anybody using it - and today I still know three people who
regularly use PGP. It does seem, and this might just be a generational
question, that in today's world there's a certain group of people who
are comfortable with these technologies and a larger group who aren't.

MOGLEN: I think you are right there, but PGP may not be the good test,
after all. The questions now that you want to ask have a pretty fine
granularity. They have to do with which kinds of technology will get
widely adopted and which kinds won't. Non-transparent encryption of
e-mail is a specialist thing. If we sewed it into Eudora and
distributed it to everybody they'd all use it, but they wouldn't
know. They use the secure socket layer in their browser but they don't
really know it's there because they don't see the little lock at the
bottom of the page. This bites them sometimes. People you know are
using encryption, they just don't know that they're encrypting. I do
not think that encryption in itself will become something that
everyone will know a lot about and care a lot about in the future.

WORTHINGTON: How about open-source operating systems?

MOGLEN: Now there, of course, eight years ago you didn't know anybody,
and five years ago you knew four, and this year how many? Hundreds?

WORTHINGTON: Actually, no.  Probably just several.

MOGLEN: That surprises me. If you go across the street and ask the
undergraduates, it's cool, and to be a CS guy and not to have a Linux
box, that's a weird thing. But we don't want the computer to be too
fetishized as the most important thing in everybody's life. These are
tools, and we do expect most people to have a pretty tool-like
approach to them. What people are going to use these switches for, and
how much they are going to care about who controls them, that remains
to be seen.  My sense is a little different from yours, because I
believe that kids growing up with computers are going to want to know
how to change them.

WORTHINGTON: I hope that's true.

MOGLEN: And you've expressed some doubt about that and that's the
experiment we are conducting. We will find out which of us is right
about that in another ten or fifteen years, and a lot rides on that.

WORTHINGTON: The hopeful part of your story seems to lie in kids
growing up on free software in Southeast Asia, kids who aren't being
educated on Windows at all.

MOGLEN: Well, some of them will use Windows. Of course, the problem is
money. The problem is the very thing which in the end turns out to be
really important in the contemporary, local environment. Microsoft
makes $400 billion a year selling stuff, than which there is better
available for nothing. In the pure microeconomics of this you would
expect it to go away. Now, there are a whole lot of things that can be
done to stave off the law of supply and demand - you can advertise
heavily; you can give people fear, uncertainty and doubt; you can do
all sorts of things - but at the end of the day there are billions of
people all over the world who need computers and software and some way
to connect. This is a major issue of economic resources. How can the
free software not win? Where's the money going to come from to buy all
those Windows licenses? We are, after all, engaged in a capitalist
enterprise on a bad business model. If they want everybody to use it,
at a minimum the price has to be zero. At a minimum.

WORTHINGTON: Couldn't you have asked yourself the same question, and
answered it with the same note of scorn in your voice six years ago?

MOGLEN: Yes, you could. I don't know whether it takes fifteen or
twenty years to do Microsoft in - what difference does it make?
They're going down. You can't make less good stuff and sell it at high
prices indefinitely when the good stuff is free. For different users
there are different answers to these questions, but in a place where
an awful lot of people all over the world need software and are not
going to pay $90 for an operating system - which doesn't work, but
which is compatible with all the other non-working operating systems
all over the planet - they'll produce something else, and the
something else will be free.  And then they'll have an investment in
free. Are the French actually going to require open-source software
for government use? No, I don't think so, but it would be interesting
to see what happens. Sooner or later, somebody will somewhere begin to
recognize that societies pay pretty heavily for Windows too.

WORTHINGTON: I didn't realize the French government was interested in
the idea.

MOGLEN: No, there's legislation pending - a couple of senators who are
interested in the idea. But, again, massive amounts of resources are
going into this. People are going to give up eventually. I don't know
how long it will take.

WORTHINGTON: We'll see. We should have this conversation again twenty
years from now.

MOGLEN: Oh, we'll all be having this conversation constantly.

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