For good measure May noted that racists such as the Aryan Nation were using encryption, and “other kinds of terrorists” might be relying on it as well. “Expect more uses in the future, as things like PGP continue to spread.” As if that weren’t enough to pull bureaucrats’ chains, May said: “Many of us are explicitly anti-democratic and hope to use encryption to undermine the so-called democratic governments of the world.”

May, ever the idea juggler, also weighed in with some powerful arguments for PGP that appealed strongly to a stodgy old Democrat (small “d” as well) like me. Even the Feds should have grasped them. “Could strong crypto be used for sick and disgusting and dangerous purposes?” May asked. And then he answered himself: “So can locked doors, but we don’t insist on an ‘open door policy’ (outside of certain quaint sorority and rooming houses!). So do many forms of privacy allow plotters, molesters, racists, etc., to meet and plot.” Whatever May was, anarchist, libertarian, objectivist, or nothing, he was making more sense in those three sentences than Baker could have in a 1,000 essays.

After May signed up for Cyberia, a legally oriented list, he was one of the favorite nonlawyers there, winning friends even among those who disagreed with his politics. In one limited way he may have been more threatening to Washington than Hoffman or Rubin, for, rather than just ranting and raving and putting on a good show, he could communicate all too cogently with members of the establishment. At the same time the Feds were fixating on Zimmermann, May casually told the lawyers how he moved in and out of the country without letting Washington veto his speeches on encryption. In effect his gleeful confession made mockery of the laws. If D.C. couldn’t even control a traveler—there in flesh and blood—how could it monitor electrons speeding over the phone wires?

“I myself just presented a paper on ‘Crypto Anarchy and Virtual Communities’ in Monte Carlo,” May told the cyberlawyers, at least one of whom was an attorney from the Justice Department. “I described algorithms, methods, etc., and was never asked or instructed to submit to the Men in Black in D.C.” He was even carrying around “several gigabytes of code, essays, programs.” But never was he “ever stopped, questioned, or searched. Only upon landing in San Francisco was I asked to state my business overseas. I said I was meeting with cryptographers from around the world! This was met with confusion by the twenty-two-year-old Customs officer; but after asking if any of them were from Russia or Iraq, and I told him I had no idea if there were or not, he waved me through.” May said most U.S. cryptographers “just shrug and ignore the possibility that our papers may be illegal to present outside the U.S.”

His observations came as the Electronic Frontier Foundation was trying to resolve matters in a more tidy way. It was sponsoring a lawsuit to prevent Washington from restricting the spread of encryption-related writing and software. Quite correctly the EFF argued that the encryption laws were an “impermissible prior restraint on speech, in violation of the First Amendment.” An EFF victory, needless to say, could nuke the government’s case against Zimmermann.

With Hooverian tenacity, as if Phil Zimmermann were Dillinger or a godfather, Washington kept up its harassment and even escalated it in some ways. Jim Warren saw this happen firsthand. He had asked to testify several years ago in Zimmermann’s defense, but the authorities ignored his request. Then in 1995 he had published op-ed pieces in San Jose and San Francisco papers, in which he throttled the FBI and NSA for getting in the way of the best possible security on the Net. In the wake of the Mitnick break-ins, he had accused the Feds of “endangering millions of innocent citizens and law-abidinglaw-abiding businesses that use the Net or cell phones, in order to protect their ability to monitor the few who might be guilty of something.” Almost immediately two U.S. Customs agents favored Warren with a surprise visit to his house and quizzed him about Zimmermann and PGP. “When they began the interview,” he said, “they handed me a subpoena that said I was ‘COMMANDED to appear and testify before the Grand Jury of the United States District Court’ in San Jose.“^[6.23]

“Who says government isn’t responsive,” Warren quipped.

He said this in a folksy newsletter sent to hundreds of people on the Net. Its well-earned name was Government Access; he had been the main organizer of a successful campaign to get California to put legislative information on the Internet for free. As much as anyone he was trying to work within The System. Yet he was ever skeptical toward “Congress Critters.” Again and again Warren’s newsletter in effect depicted a Washington that could be Torylike in its contempt toward Netfolk.

Warren didn’t just write of the well-publicized threats like the Exon bill, or the Clinton Administration’s prosecution of a couple in California because their sex-oriented BBS did not come up to Bible Belt community standards in Tennessee, or the Zimmermann case itself. Warren also wrote of obscure people such as a Berkeley-area hacker who, enraged by restrictions on encryption and by other actions in the vein of King George’s Stamp Act, had fled to Sweden.

“Sweden is no paradise,” the expatriate told Warren via e-mail, “but I don’t ever worry that the government is going to break into my home. I know that I’ll be able to run my BBS, maintain all the contacts I’ve developed over the years, and continue to use the various nets without fear of Uncle Sam attacking me. So now I’m trading in my U.S. passport for one that is a lot less threatening to me and my PC.” Warren added: “This is the second former American I have known who has done this for exactly these reasons!” I remembered a hacker libertarian who had been hoping to construct an island in the Caribbean, beyond the reach of technophobic politicians.

Warren was disappointed enough with Washington to tell the Net: “I’m beginning to feel like a German Jew in 1935.” He didn’t just hate Clipper and the harassment of Zimmermann. On top of everything else, Washington had recently passed a digital telephone bill that “would make Lyndon Johnson, Nixon’s Watergate team, and J. Edgar Hoover drool on their bibs.” The project would cost the taxpayers billions of dollars over the years—all this to make the phone system more tappable, out of fear that crooks might otherwise forward phone calls to bugfree locations. Washington was actually setting aside more money for snooping than for electronic libraries. And now Warren feared that the Feds someday would ban encryption outright.

Beyond D.C.’s computer-related stupidities, he loathed the way the Feds played fast and easy with the Constitution on matters such as drug law enforcement. Agencies, for example, could keep money and equipment taken from suspects and use them for their own purposes, thus giving police “a profit motive” to abuse Americans’ rights.

“No doubt,” Warren said, “many in Germany told that nation’s Jews, ‘It’s not that serious’ and ‘It’s just a phase—it’ll pass’ as they disarmed the citizens in the name of law and order only a few years before filling the camps and ovens that somehow good, law-abiding Germans just never knew about until after the war. If we don’t watch out, our government’s cure for ‘crime’ will become even more dangerous than the illness. And this time, I don’t think Sweden will be a safe haven.”

Clearly Warren was a long, long way from the optimism of Orwell’s Revenge, the book in which Big Brother lost to the hackers.

I doubted that the United States was quite as Oceania-like as Jim Warren obviously believed, and his own German parallel might be stretching it. Stamp Act parallels did, however, fit. An old, ignorant, Torylike order wanted to pass laws to contain the new, and I could envision an increasing number of ugly confrontations between bureaucrats and Netfolk. Baker, the ex-NSA man, hadn’t hesitated in the least to come up with his wacky characterizations of Clipper foes. To the D.C. policy elite, we on the Net were fair pickings.

All the hype about the Information Superhighway notwithstanding, most of the Feds didn’t feel quite as at home on computer networks as billed. Most Congress members in mid-1995 still lacked public e-mail addresses.

Meanwhile, the Net was catching on among millions of younger AmericansAmericans who surfed freely, while their elders could barely master commercial networks such as CompuServe. By way of Clipper and blatantly anti-network copyright proposals, the White House was kissing off all too many within Generation Net.^[6.24]

A further embarrassment was the contrasting enlightenment of some Republican conservatives, who many Democrats on the Net might have dismissed entirely in the past. Rush Limbaugh, the right-wing talk show host, didn’t just show up on CompuServe as a visitor. He personally logged on again and again and even met his wife there. He might not be on the Net itself, but he was much more at ease with the technology than were the majority of the liberals on the Hill. Meanwhile, the most powerful conservative of all, House Speaker Newt Gingrich, spoke out against the Exon amendment. William Buckley, the noted conservative journalist, was a major backer of my proposal for a decentralized national library system online. And the conservative writer George Gilder, while all too zealous at times about free markets, had made some of the most prescient predictions on the direction in which the technology was headed.

Too many Democrats were TV-centric, while Gilder believed that computers would be the new entertainment medium, prevailing over television. Sales figures proved him right. More Americans bought desktops computers in 1994 than purchased color televisions, and it was only a matter of time until they logged onto computer networks and worried about their privacy there. And here were Clinton and Gore pushing Clipper with more ardor than they could summon up for well-stocked electronic libraries for all.

Of course, not everybody on the Democratic side was hopeless, and many Republican law-and-order types loved Clipper, the Bush leftover. Also, these same politicians might well applaud the Clinton Administration’s anti-Net copyright proposals, not understanding all the undertows that could ultimately drag property rights under. But at least they hadn’t enlisted civil libertarians and populists in their campaigns to the extent that Bill Clinton had. I’d never have voted for the man if I’d known in advance about Clipper, the harassment of Zimmermann, and the antediluvian copyright policies. Bush in some ways might have been preferable. Not knowing the difference between a potato chip and a silicon chip, he would have done much less damage. A smarter, more principled Democrat than Clinton could pick up the pieces in ’96.

Clinton’s Justice Department showed a brazen and bizarre lack of fairness toward Zimmermann. Until the statute of limitations expired—and that was fuzzy, even to lawyers—the Feds might just let him dangle. Without finding Zimmermann guilty of anything, or even charging him, Washington in a sense was already leveling penalties. He had to spend hours and hours away from his regular consulting business to work on his case.

Total costs might reach $300,000 if the prosecutors decided to act. Even if lawyers donated their time—and Zimmermann might enjoy the services of some noted attorneys outraged by the threat to civil liberties—there would be the burden of telephone costs, travel, and hotels. Appeals for donations went up in such areas of the Usenet as talk.crypto.politics, comp.org.eff.talk, and, of course, alt.security.pgp. People could pay by credit card, encoding their numbers via PGP.^[6.25]

In the end, no matter what happened to Zimmermann, the real victory might be in the marketplace. And there Clipper was losing. AT&T and a chip maker named VLSI Technology came out with a chip that would challenge even the NSA’s supercomputer. Given a choice between that and Clipper, who’d want the latter? Even before then, in fact, few customers were going for Clipper-based equipment.^[6.26] In the end it looked as if Washington would resort not to a chip but to continued pressure on U.S. corporations to make available the key schemes of more secure plans. And even then, I hoped, the industry would balk. The more such foolishness became a habit here, the less protected would be American companies abroad, as people outside the States followed Washington’s example.

Some of the biggest Clipper haters, meanwhile, were overlooking their differences to unite against the tumor chip. Jim Bidzos’ company had already granted a license for the basic technology to ViaCrypt, which, at least in the latter’s opinion, left it free to sell a commercial version of PGP. And this past action may have been a door opener in a way for Phil Zimmermann. PGP was no longer so much of an outlaw program in the eyes of many, and businesses felt they could use it and get technical support. Beyond that, professors at the Massachusetts Institute of Technology, whence much of the RSA technology had come, were sick of all the patent wars. They just wanted to see solid encryption in use. And Bidzos, however much he quarreled with Zimmermann, was himself determined that the Feds not control encryption. The compromise could go a long way toward enshrining RSA as at least an informal world standard, and thwarting RSA’s biggest competitor, the NSA.

And so Bizdos and colleagues let PGP be used for noncommercial purposes as long as the newer versions were incompatible with the older ones that lacked the blessing of RSA and Public Key Partners. Of course that still didn’t solve the hassles of securing international commerce with a truly strong encryption standard with which the U.S. government felt comfortable. But even if PGP-style products weren’t official, they were murdering Clipperish schemes before snoop-ready chips and programs could take root. The world’s governments might well have to join countries like France and try to ban strong encryption.

But could they? Too many people in too many countries were already using software such as PGP. Hackers proudly included their public PGP keys—those weird combinations of letters and numbers—at the ends of their messages or told how people could obtain them. PGP keys were becoming status symbols. PGP wasn’t yet built into popular e-mail programs such as Eudora for easy use, so, if nothing else, the keys indicated a certain level of technical expertise. They were the new vanity plates of the dataways. PGP was even becoming a small industry; for example, you could shell out $20 and officially register your key with a company in Palo Alto, California, called SLED. And then people receiving messages from you would know they were really from you.

SLED required a mailed or faxed driver’s license or passport, or a preprinted personal check. This wasn’t the best proof of identity, but it would at least let Netfolks spot obvious forgeries immediately. If nothing else, you could “register” your key with friends who were well known and well trusted on the net.

With or without formal registration, more and more Netfolks felt lost without their PGP. Father Bill Morton, the Anglican priest mentioned earlier, the one who used PGP to accept confessions over the Net, wrote a parody:

Responding to a query I’d posted in several encryption-related newsgroups, he explained in an e-mail why PGP meant so much to him. Confessions were just part of the story:

Father Morton’s respect for privacy came through when I asked for examples of confidences that people had shared with him by way of PGP: “No matter how I disguise the facts,” he told me, “even if I were to create a fictitious person, someone somewhere would believe that they were reading the details of their life story.” And so he was vague, other than to say, to give an idea of the gravity of what he heard, “Thoughts, dreams, hopes, as well as lust, anger, and hatred. Sometimes, actually oftentimes, there are things that you wouldn’t even tell your spouse. Our lives are based on trust.”

Thanks to PGP, Father Morton could maintain that trust not only with people locally in Woodstock, New Brunswick, but with Netfolk from thousands of miles away.

Some people met him in newsgroups. “We’ll have an exchange of e-mail on a specific topic,” he said, “and at one point it will become evident that I am a priest.” He neither hid nor played up his occupation. Upon learning it, he said, the Netter at the other end “may wish to change the topic and enter into a brief correspondence about a particular question. That conversation might last one or two posts and is usually, though not always, in PGP.” In addition, he corresponded with a very small group of people regularly about significant events in their lives. These conversations were always in PGP.

“Before PGP,” Father Morton said, “e-mail was guarded in its content. A typical e-mail exchange might be to set up a phone conversation or meeting or discuss issues in very general terms. Now, at least in a few cases, the PGP mail is much more open in its content, and as a result the e-mail pastoral relationship can be much more productive.”

Father Morton was not alone in his use of PGP to protect personal secrets. For example, the Samaritans, a group devoted to talking people out of suicide, said it would accept PGP-encrypted messages.

“The Samaritans,” announced a Usenet post, “have always taken the confidentiality of callers extremely seriously. Indeed the most frequently asked question within the movement about our e-mail service is, ‘What about confidentiality?’” Surely, in an era when more and more communications happened to be electronic, it would be folly to deny reliable encryption to the Samaritans and the people they helped. Although the Samaritans felt more confidence about the security of unprotected e-mail than did Father Morton, they understood an important truth: perceptions mattered as much as anything. If their correspondents lacked faith in the confidentiality of e-mail, they couldn’t write as freely. And, as I saw it, they might not be as open to rescue. If Washington banned PGP, if it replaced it with an inferior, Clipperish arrangement, the Samaritans just might not be as successful as with truly secure encryption.

Privacy wasn’t just for confessions and for suicide prevention. It was also for teenagers. Donna—she supplied her real name but I’ll protect her with a pseudonym—lived in Florida and was a seventeen-year-old junior in high school who was already using PGP. She e-mailed me:

But, Donna went on, if a child were doing something illegal, there “would be physical evidence.” That seemed clear: You could encrypt a diary full of unorthodox musings; you could not encode a marijuana stash.

I would have trusted Donna, but I still had mixed feelings about most teenagers using PGP without their parents’ sharing the keys. How long until Senator Exon ranted that the young would encrypt dirty bytes? In the end, however, just as with children’s use of the Net itself, PGP should be a family decision, not a federal one; Washington mustn’t turn into a giant version of Donna’s mother. Risks from a ban, even one limited to children, so outweighed the benefits. If Donna’s mother wanted to understand her daughter, then maybe she needed to spend less time doing a domestic-level KGB act and more time at a computer—seeing for herself what her daughter was up to. In the process she might understand Donna well enough to tolerate her opinions. She’d better learn to brook them; her daughter was almost eighteen, the age of adulthood in the United States. Soon many parents would be more comfortable with the technology, and then, family by family, parents could decide whether to be Big Mama or Big Daddy and look for PGP-encrypted files. It should be a family, not a government, matter.

If nothing else, parents themselves could use PGP to guard their own privacy. “I use PGP at home solely for keeping confidential information from prying eyes—for instance, from my son and my son’s friends, as well as for keeping their information in one central place,” said Joe Collins, an employee of an international investment bank based in New York. It guarded his burglar alarm codes, the codes to the family safe, all credit card numbers, and all passwords to software on the family computer. Yes, some popular software came with encryption, and certain people might have argued that home users such as Collins didn’t need PGP. But the encryption found in popular software was nowhere near in PGP’s league. In fact, Crak Software, a company in Phoenix, Arizona, even sold “password-recovery software” to crack popular programs such as WordPerfect, Word, Excel, Lotus 1-2-3, and Quattro Pro (for backup purposes).

AIDS activists especially understood the possibilities of good, strong encryption; victims of the disease, after all, were treated about as fairly as lepers had been in biblical times. In New York a group called ACT UP tried to get the public health officials to encourage labs to use PGP to protect the identities of patients. The officials liked the idea. The program died at the hands of a parsimonious governor; but sooner or later, I suspected, PGP would be used in one way or another to protect the privacy of AIDS patients, if it wasn’t already.

In the business area, the advantages of keeping PGP legal—and avoiding Clipperish solutions—were just as clear as at the personal level. “PGP is essential,” said Robert David Steele, a former CIA agent whose passion for legalized encryption and dislike of Clipper must have endeared him to many hackers.^[6.27] “Security is the foundation for openness. In order for a world of open electronic exchanges actually to succeed, electronic persons have to know three things, all of which PGP supports: (a) that the person on the other end of the link is who he says he is, (b) that the information being received is genuine and not altered, and (c) that a digital cash payment will be forthcoming, assuming that this is part of the transaction.” Steele was not just talking about the benefits of PGP for business alone, but clearly it was among the major uses that he quite properly had on his mind here.

Many business people on the Net agreed. I was hardly surprised to read in the New York Times about the use of PGP “in what was apparently the first retail transactions on the Internet using a readily available version of powerful data encryption software designed to guarantee privacy.” A Philadelphia man had used PGP to scramble his credit card number and spent $12.48 and shipping costs on a compact disk with rock music from a New Hampshire company called Net Market. More benefits were to come. Already other companies were working on digital cash, which could let bits and bytes go out over the Net in ways that prevented them from being easily traced. They would be, in other words, just like dollar bills.^[6.28] You could spend them without Big Brother knowing that you’d bought a Playboy, a Rush Limbaugh book, a condom, or whatever else might somehow cause your neighbors or your boss to take offense.

PGP also made sense for privacy protection within companies. An accounting firm in Palo Alto, California, for example, used PGP to guard backup tapes in case of loss or theft, and a Washington accountant relied on it for client communications.^[6.29] And when Zimmermann himself asked online for PGP testimonials, a man with a telecommunications firm on the West Coast told him how much he loved it as an alternative to Clipper:

At the same time, needless to say, PGP could improve the flow of political ideas. In 1993 Boris Yeltsin had been at odds with foes nostalgic for the old Soviet state. “If a dictatorship takes over Russia,” a message from Latvia had told Zimmermann, “your PGP is widespread from the Baltic to the Far East now and will help democratic people if necessary. Thanks.”^[6.30] In Burma rebels used PGP against an oppressive regime. A writer in Thailand said that before PGP reached them, captured papers had “resulted directly in arrest, including whole families, and their torture and death.” Activists in El Salvador and Guatemala also relied on the program. “In this business, lots of people have been killed,” said Daniel Salcedo, a member of the Human Rights Project of the American Association for the Advancement of Science.^[6.31] David Banisar of the Electronic Privacy Information Center told me of PGP being used in Kenya, Mali, Senegal, Egypt, and MaliMali, among other countries.

“Wire tapping is conducted in nearly every country in the world,” Banisar wrote in a paper with the marvelous title of “Bug Off!” “It is frequently abused.” A 1992 State Department report, for example, told of governments and private organizations snooping away in dozens of countries. And it hadn’t happened just in the Third World. “There have been numerous cases in the United Kingdom which revealed that the British intelligence services monitor social activists, labor unions, and civil liberties groups,” Banisar said in a paper written for Privacy International.^[6.32] What’s more, the Canadian Communications Security Establishment had shelled out more than $1.1 million to scan through millions of messages and pick out dangerous words and phrases.^[6.33] Would the CCSE abuse the system and routinely compile dossiers on law-respecting people? And what about the FBI here in the States? Many Netfolks took it for granted that Louis Freeh’s people were keeping up with Usenet.

“The FBI has the ability to police the Internet and, indeed, has been doing so,” David Nadler and Kendrick Fong, two tech-oriented lawyers, would write later on in Computer Digest: The Journal of Professional Development for the Washington-Baltimore Technology Community. “In fact, the FBI has been collecting Usenet postings since the late 1980s.”

A formulaic condemnation of all FBI monitoring, however, would be unfair. I could hardly object to the Feds reading the public messages of egotistical nuts with a clear-cut predilection for violence. What better reason not to censor Usenet and any audio and video equivalents that might follow? Let the kooks rant away, hour after hour, educating Louis Freeh about their plans. Usenet wasn’t anyone’s living room. Posting messages there was like publishing a book or speaking in a town square. Via the free Stanford Netnews Filtering Service, I could receive electronic mail messages whenever a specified word showed up in a major area of Usenet. Yes, I could track people by name. I could also choose words associated with a topic. That was the magic of the Net; it gave us small-fry many of the same tools available to the intelligence bureaucracies. The same kind of wizardry that might let Canadian cops snoop on citizens could allow me to track the utterances of Al Gore on the subject, say, of the Internet.

One technology, however, may have bureaucrats more uncomfortable than any other—encryption. A U.S. database expert named Patrick Ball found this out the hard way when he was in Ethiopia to help the Office of the Special Prosecutor. Ball efficiently helped build a database of crimes that had occurred under the regime of Mengistu Haile Mariam. He was accomplishing plenty. Then a bureaucratic rival started a turf war with him. The man falsely claimed that Ball had been using PGP for secret correspondence, probably with the CIA, even though the truth was a little more mundane. Ball hadn’t used PGP for anything but test messages; the people at the other end lacked the technical skills. But the rival didn’t know. He confused PGP with uuencodinguuencoding—a way to prepare programs for accurate transmission via e-mail—and unfortunately the chief special prosecutor believed Ball’s accuser and forced the database expert to resign.

So often that was the case with police: They displayed a mix of fear and ignorance. And they were not totally wrong to be worried. One computer expert predicted that in the next few years criminals would routinely use electronic scrambling. “This could signal the end of computer forensics,” said William Spernow, “before it even gets off the ground.” A criminal relied on a double set of books, employing PGP to conceal the accurate one, and dope-peddlers in Miami used encryption.^[6.34]

Not only that, just as I was writing part of this chapter, the newspapers told how terrorists in Japan had killed 10 people and injured about 5,500 by spreading nerve gas in a Tokyo subway station. Wouldn’t restrictions on encryption make such acts harder to commit with impunity?

Strong counterarguments existed, however, against the jackbooters who would ban strong encryption or impose the Clipper variety on us. I would rather that nations not spy on each other. But I fully recall the naiveté of the past, the fantasy that “gentlemen do not open other gentlemen’s mail”; whether we liked it or not, espionage and counterespionage would always go on. In that spirit, instead of wasting money on Clipperish schemes, countries could spend money developing more powerful computers to crack encryption, and they could also refine the unscrambling techniques. That would not be cheap. But since bad guys wouldn’t let Clipper or successors be the apex of technology, the United States hadn’t any other choice. Other countries might feel otherwise. Bureaucrats just couldn’t contain technology. Clipperish schemes would be brainless in any country.

As one alternative, governments could rely more heavily on open sources—for example, newspapers and other media outlets, especially those online. The more journalists out there, and the more independent they were, the harder it would be for nations to keep secrets and conspire against each other. The United States and friends had the most selfish of reasons for encouraging the spread of the free press.

The open source idea was hardly original to me. Others had talked about it for years, most notably Robert Steele, the ex-CIA agent, who observed that publicly available material was often far more useful than the clandestinely gathered variety. I didn’t agree with much of what Steele said—I wanted more isolation between journalists and government than he might have liked. But his basic point was sound. Information was most reliable when it was in the open and could be dissected, rather than hiding it behind a “secret” stamp. The spread of network technology could only strengthen this premise.

Yet another approach could be the selective use of agents, in new-style roles, taking advantage of high technology. Here again I had mixed feelings. But in an era when countries such as Iraq were trying to develop nuclear weapons, this option should be kept alive.

What about terrorists? As with child-molesting rings and drug cartels, Clipper just would not do any good. Secret groups would be the last in the world to use the chip. Far better for intelligence agencies to work on more powerful computers and truly effective software for cracking codes. Breakthroughs might not come immediately, but would sooner or later, and the civilian sector might ultimately benefit when the technology finally did reach the world at large. Advanced supercomputers, for example, could be used for weather forecasting, or for graphics and design—the same wizardry that had helped make possible the Visible Human Project described in the last chapter.

Meanwhile an open-source approach could often do the job. The accused terrorists in Japan hadn’t exactly stayed hidden from the world before the subway incidents. Shoko Asahara, their leader, had delivered sermon after sermon with allusions to poisonous gas; in the city of Matsumoto where he had been at odds with authorities over some land, 7 people had died and 200 had suffered injuries when a cloud of sarin wafted in the area. Small wonder that the Japanese government had caught up with the sect so soon after the Tokyo tragedy. Newspaper databases would have told plenty, beyond any information that happened to be in the government’s own records.

Legally authorized bugs might be yet another solution, and so, at times, might be informers wired to make the best case. In an era of near-invisible electronics, this approach would be increasingly practical.

What’s more, if Bill Clinton and Al Gore really cared about protecting citizens in a high-tech age, they would worry less about snooping on citizens and more about hardening up points of vulnerability. Steele noted how easily criminals could “maliciously interfere with the computers that control the power system. It is relatively easy to destroy computer capabilities—this takes much less skill than to ‘crack’ them and divert computing resources.” Also, terrorists could wreak havoc with computers that controlled telephone systems in such areas as communications for government and banking.

He also warned of interference with the computers of Wall Street and the Federal Reserve. “Trillions in digital data” could vanish into the ether. “A massive global economic panic” would ensue. Preventative measures wouldn’t be cheap, but if the American government did care about security, it would prepare realistically for the threats of the information era rather than doing an inept Big Brother act.

To rig up a whole nation for wire taps would be both a waste and a disgrace. I pondered the ironies. Here the NSA and similar agencies were supposed to protect normality—to guard families against dopesters, sex perverts, terrorists, and the rest—and yet Phil Zimmermann the husband and father might go to jail. “I think it’s kind of unreal to him,” Zimmermann said when I asked how his son felt about this. “I tell him that I have some talented lawyers working for me, and that we’re doing the best we can.” And Zimmermann’s wife? “She thinks that they can’t possibly indict me, because that would be wrong—that somehow they’ll realize that and just back out. Of course by the time your book is printed, we’ll know one way or the other whether she was right.”

The White House in the 1990s was extolling computer nets as a way to Bring Government Closer to the People. Americans could dial up “An Interactive Citizens’ Handbook” on the Internet, see a photo of a teenaged Clinton with JFK, and listen to Socks the Clinton cat meow. But could Clinton-Gore hear us? Just how “interactive” was the White House?

Clinton boosters formed a group called Americans Communicating Electronically to improve electronic contacts between mortals and bureaucrats. Al Gore, meanwhile, had flaunted his typing skills with the famous visit to CompuServe. But was electronic democracy truly alive on the Internet and other computer networks? Not quite. All the techish sizzle notwithstanding, Clinton-Gore might instead be giving us electronic oligarchy, especially if Republicans followed the horrible precedents that the White House was setting. Consider the dubious, somewhat Orwellian process that was shaping the National Information Infrastructure—the famous data highways and related endeavors.

So far Washington had not worked nearly as hard as it should to drive down the cost of knowledge for the average American. At the same time a network-hostile copyright proposal was delighting information monopolists and imperiling the ability of citizens to share electronic newspaper clips in even a limited way.

I testified at an official hearing on the NII in 1993, and what most struck me about Clinton-Gore was the chasm between words and deeds—the same mind-set that led to Oceania’s propaganda agency being named the Ministry of Truth. The gospel according to Al Gore was that people of all income levels would be able to travel the dataways. His musings later adorned the peach-colored newsprint of The Mini Page, a newspaper insert for children.

“No longer will geographical location, wealth, gender, or any other factor limit learning,” Gore reassured elementary schoolers. He told how “a child from my home town of Carthage, Tennessee, will be able to come home from school, turn on a computer, and plug into the Library of Congress in Washington, D.C.” The NII would clearly be in the grand democratic tradition, small “d.”

The next day, however, the Washington Post carried news of a different stripe from Bruce Lehman, the Clinton-Gore commissioner of patents and trademarks, who chaired the NII working group on intellectual property. I learned that “because of the ease of digital reproduction, Lehman does not foresee that digital libraries will put copyrighted works within easy reach online the way they do books on a library shelf. Copyrighted digital materials are likely to be available only to subscribers—libraries, for example—who pay royalty fees, he said. People who want the material might have to go to their local library and use a computer there that would not allow them to copy or redistribute the work, Lehman said.”^[6.35] A few months later Bruce Lehman would graciously tell the Wall Street Journal that, yes, he would tolerate children carrying home copyrighted CD-ROMs and floppies of electronic books.^[6.36]

Compared to networked books, however, the CDs and the rest would be pathetic. Distribution over the Internet and other networks could be the cheapest way to get the material spread around, while assuring a wide variety of material for all. When William Buckley likened CD-ROMs to 78-rpm shellac records in the era of the Internet, he couldn’t have been more precise. And yet this was the future as envisioned by Bill Clinton’s intellectual property czar. So much for the well-informed citizenry needed for a Jeffersonian America. Lehman was beating the bushes for electronic oligarchy.

Once I had felt that the Clinton-Gore people might truly share my own egalitarian dreams. I’d thought that nonlobbyists like me stood a healthy chance. I had been writing about computers for close to a decade; earlier I had covered a poverty beat, and I knew how we could drive down the cost of small computers so that someday even Head Start kids could read electronic books on them. What better way to encourage democracy? The whole country, not just the elite, could grow up understanding abstract thought. Could the Constitution have been drafted by a mob of illiterate TV watchers?

Rather than letting Big Brother choose books for us, we could establish a democratic system with many librarians in many cities empowered to make acquisitions. Never would bureaucrats be able to do the equivalent of tweaking old copies of the London Times behind our backs. It would be too damn hard with so many librarians in so many locations, and with the same material reposing on millions and millions of tablet-style computers that individual Americans owned. My vision was one of electronic federalism, not of Big Brother policing our reading tastes. TeleRead wouldn’t undermine local schools and public libraries. Quite the contrary. TeleRead would buy affordable, sharp-screened machines for them, sending a signal to Silicon Valley and paving the way for similar computers to go on sale at the Kmart for $99.95 for anyone to buy.

Just as important, unlike the Postal plan mentioned earlier in this chapter, my TeleRead plan would let schools and libraries use the hardware without Big Brotherish restrictions. They could store whatever they wanted on their own computers for local people to dial up. And to make the national library more useful at the local level, they could add special, Web-style links designed for the people they served—not just for whole communities, but perhaps even for individual readers.

What’s more, TeleRead would respect diversity and freedom of expression in other ways. Publishers could gamble fees up front to bypass librarians and qualify for royalties, and if censored from the national library, they could post on the Net itself. I took it for granted that Washington would try to censor TeleRead. That was the reason I envisioned a whole network of many librarians, in many places, together with long-range funding. Besides, my plan reflected the old wisdom from hackers: When censorship arises, just route around it. Private companies could make some nice money off officially banned books. Imagine the promotional opportunities; “Nixed by Washington” could be the new “Banned in Boston.” What’s more, since TeleRead was public and involved many librarians, not just a tiny D.C. elite, any censorship would probably be much more conspicuous than in the world of corporate publishing.

In other ways, too, TeleRead would be anti-Big Brother. Americans would not have to make private companies privy to their reading habits. The national library could track dialups for the purpose of paying writers and publishers—you couldn’t retrieve books without reporting past accesses. But TeleRead would include protections. Records associated with individual users could be temporary, just a way to prevent information providers from abusing the system with repeated dialups. People could buy controversial books by way of anonymous digital money. In fact, with sophisticated enough fraud controls, the same techniques might eventually be used to prevent names from being associated with dialup records even for a short time. If nothing else, people could entrust TeleRead records to certified private companies that reported accesses without revealing identities.

TeleRead, then, could provide even more safeguards than public library records in the paper era—significant, since librarians by habit had respected privacy much more than had other government officials. “There was a case back in Nixon’s era,” Phil Zimmermann would eventually remind me, “where Nixon tried to find out what some of his enemies were reading at the library, and the librarians were, of course, up in arms about being asked to supply a list of books that had been checked out by a particular person or a list of people that had checked out a particular book. They were able to resist the efforts by the government to obtain that information. I think that we need to have the same kind of controls in place for future libraries that are on the Net.” I couldn’t have agreed more.

Even the hardware could serve to thwart Big Brother by promoting free expression and democracy. TeleRead would let people talk back to bureaucrats and among themselves; the machines would work with keyboards, and someday they might even serve in part as wireless digital telephones, not just computers. TeleRead would let Americans all be more uppity. The information in the national library would enrich public debate; it would at least somewhat blur distinctions between the wealthy and those who otherwise couldn’t afford top-quality information.

This needn’t be just a dream. The United States had a $6-trillion-plus economy, and if just some of us used electronic forms for government and commercial transactions, we eventually would save tens of billions in time and money. As noted earlier in this book, the same pen interfaces that were ideal for reading would be great for forms. E-forms could help flag errors in tax returns and other documents, “interview” users quickly, and just as quickly narrow down questions to the essentials. And so the saving in time and money could easily justify a well-stocked national library. No magic was involved here, just an old principle of information management. Two applications (smart forms and the electronic books) made more sense than just one (the books). In fact, the American Society for Information Science would later approach me to do a chapter on electronic libraries for an ASIS book from MIT Press, and I would oblige. Clearly TeleRead was a logical link between Gore’s plans for reinventing government and his oft-claimed desire to drive down the cost of knowledge.

I was a writer, not an attorney or information scientist, but a number of well-credentialed people understood the logic of TeleRead, even when I showed them a version somewhat less refined than the one just described. At the urging of a distinguished Washington lawyer, I applied to testify at the interagency hearings on intellectual property law in the digital age. But he warned me some bizarreness was afoot. Experts from the Library of Congress would not run the hearings; nowadays electronic books would be more within the domain of the Commerce Department. A Commerce bureaucrat instead would be the main player here—Bruce Lehman. That should have been my tip-off that the proceedings would be big and furry and jump, and come with a pocket for joeys; but I went ahead just the same. The lawyer organizing the hearing seemed friendly, alert, intelligent, receptive. She said each witness would testify just a few minutes, and that after the hearings the Feds would carefully examine our words.

My optimism grew. I expected at least a modicum of electronic democracy, Gore-style, just as promised. So in November 1993 I joined some thirty other witnesses in Crystal City, Virginia, across the Potomac from Washington. Bill Clinton wanted his presidential cabinet to look like America, and, in fact, a black man was secretary of the Commerce. Gazing around the room, however, I saw a sea of white lawyers in dark suits, along with a scattering of women in power clothes. I could have been in California at an elite convocation of the software and entertainment industries.

I ran into one of the members of the intellectual property group, a minor White House advisor named David Lytel, who had promised to read my proposal as sent to him on the Internet. Mr. White House didn’t waste a nanosecond. “This is like Hollywood,” Lytel said. “Not everyone can be a star. We can’t use everyone’s idea.”

“I’m not here to star,” I said, “just to testify. Have you read my proposal?”

He said he had seen the prepared testimony I had left at the entrance to the auditorium.

“But what about the thousands of words I sent you on the Net? I thought you’d have a look and—”

“Excuse me,” he said and moved on.

His Hollywood analogy would strike me later as all too apt, for this was shaping up as a TV-centric NII that favored television and movies over books. Al Gore later would not hold his grand information summit at the Library of Congress; no, he would jet off to Hollywood and to a speech punctuated by jokes with a comedienne.

There in the Crystal City auditorium, I saw a tall, gray-haired man surrounded by a cluster of other people. Heads bobbed. Stephen Metalitz was a lawyer and a power in the Information Industries Association, the IIA. “Welcome, Steve,” Lehman greeted his first witness in a voice that told me who the true star of the day was. The rest of the hearing unfolded as I now feared. Witnesses from trade associations pounded away at the same theme again and again. Copyright law needed to be friendly to megaconglomerates or they would never bless the dataways with their Terminator films. It was as if the Internet, already starting to bristle with small businesses, never existed.

I heard some cogent testimony from some fine people representing librarians and educators, but all in all, I might as well have been at an IIA convention. Lehman’s panel of bureaucrats, some of them strangers to copyright law, just about dozed off during my testimony. Chatting with me informally, certain industry witnesses were more curious about my ideas than were the Feds. It wasn’t just to size up the opposition. For my plan would divert resources from bureaucracy to knowledge, and could actually help many members of the information industry.

A potential obstacle rose ahead, though: the hostility of real, live bureaucrats.

During a break I approached a working-group member from one of the most bureaucratic agencies of them all, the General Services Administration. “What do you think of my ideas for electronic forms?” I asked. “I remember when you guys let a senator benefit illegally from a federal lease on an office building. Imagine what you could have done with better technology to help flag stuff like that.”

“Oh,” he said coldly, “we can just train our contracting officers better.” Better to protect jobs for bureaucrats like him than to offer affordable e-books for schoolchildren.

My foremost opponent, however, as I learned eventually, just may have been Lehman himself—the chairman of the Intellectual Property Working Group, which would help set copyright policy for America’s dataways.

Bruce Lehman was Mr. Politically Correct. As his heroes he claimed the career-enhancing names of Bill Clinton and Martin Luther King; never mind the damage that his child-hostile copyright policies might do to ghetto schools, or the fact that the copyright hearing had been about as well integrated as a Klan meeting. The New York Times would see in Lehman’s office “a handsomely framed photograph taken at last year’s White House Christmas party. Bill and Hillary Clinton stand in the middle. Mr. Lehman is to the left, under a portrait of George Washington.”

His clothes were as aggressively fashionable as his choice of heroes. The Times’s Teresa Riordan would write of “stylish suits detailed with a fresh white handkerchief.” He might display “a touch of exotic color, perhaps a mint-colored watchband or the ruby background of a Brooks Brother tie.”^[6.37] Lehman needn’t haunt any thrift shops. During a twelve- to fourteen-month period before joining the Administration, he had pulled down $430,000 as a lobbyist and lawyer for intellectual property clients.^[6.38]

The patent office’s Web site said he had represented “individuals, companies, and trade associations in the area of intellectual property rights as it affects the motion picture, telecommunications, pharmaceutical, computer software, and broadcasting industries.”^[6.39] His clients had included Lotus and Microsoft.^[6.40] The latter was buying up electronic rights as if they were soft drinks for the programmers’ offices. No, Microsoft would hardly be the world’s leading backer of a universally affordable, well-stocked national digital library of the TeleRead variety. I’d lobby anyone, any company, for my idea. But could I ever persuade Microsoft? Oh, come on. This was the company that owned the word “Windows.”

Clinton-Gore campaigners had once talked of “People First.” Based on Lehman’s background and proclivities, however, a better motto in the case of intellectual property might now be “Entertainment, Information, and Software Magnates First.” It was as if Clinton-Gore had turned national health policy over to a zealous insurance lobbyist who had spent years crusading for higher premiums.

Even at the local level, Lehman was no stranger to the world of money and politics. In 1991, while a Georgetown lawyer, he had lent $10,000 at 12 percent interest to Washington city council candidate Jim Zais even though local law apparently restricted candidates to borrowing only from the usual lending institutions. Zais at the time had raised less than $13,000 from other sources. Questioned by election officials, the candidate had claimed ignorance of the law and promptly paid the money back to Lehman, along with some $120 in interest.^[6.41]

Like many of his ex-colleagues at Swidler & Berlin, Lehman had kept his checkbook wide open when national politicians needed money. Many months later I learned that between January 1, 1991, and November 28, 1994, the S & B crowd had made at least $191,000 in political donations, including more than $22,000 from Lehman himself during his days there. At least $146,000 of the $191,000 had gone to the firm’s political-action committee. Lehman’s personal contributions had reached at least eighteen congressional candidates. In fairness, let me emphasize that Lehman didn’t just have direct career considerations in mind—he was the first openly gay man whom the U.S. Senate had confirmed as a top federal official,^[6.42] and he had given generously to gay political-action committees.

Gay groups, in turn, showed their loyalty. They had wanted Clinton to appoint Bruce Lehman to something, and the White House had made him patent commissioner even though Lehman knew more about copyrights. Ron Brown, however, secretary of Commerce, said: “Bruce Lehman is not here because he’s gay. He’s the absolutely best person for the job.”^[6.43]

I believed Brown. If the Clinton Administration wanted library interests to be kept at bay to placate rich campaign donors, Gore’s dreamy rhetoric notwithstanding, no one would beat Lehman the ex-lobbyist.

A few weeks after the intellectual property hearing in Crystal City, a letter arrived from Mr. Reinventing Government himself. I had mailed my TeleRead proposal and a related Washington Post clip to Al Gore many months ago in spring 1993, and now he replied: “I am impressed with this detailed and very professional presentation. The information you provided certainly appears to contain ideas that merit careful attention. I will retain this material for future consideration as the President and I work on related policies and programs.” I hardly expected a meeting with Clinton and Gore. But was it just possible that one of their GS-14s might deem me worth five minutes of time, and follow up with a few questions?

Months passed. An occasional reporter or academic would read my testimony and call or e-mail, but no one phoned from Commerce. Meanwhile, seeing my TeleRead proposal on the Net, major vendors contacted me. Often they asked the big question: “How are you doing in Washington?”

“Well,” I said in effect, “I hope they’re keeping an open mind.”

“That’s nice, bye,” the answers would more or less come back—assuming I heard again from people at all. The NII wasn’t just TV-centric. It was Gore-centric. If you lacked his blessing, and his bland letter to me didn’t count, you were dead or at least comatose unless the right word from the White House revived your idea.

Then a “Green Paper” revealing the Clinton Administration’s preliminary views on data highways and copyright came out. It was even more horrid than I could have imagined, an insult to the memory of Andrew Carnegie. The ethos was exactly the opposite of TeleRead’s. For example, if the paper became law, one could not transmit a newspaper article to a few friends; the present ambiguities here would be resolved in favor of the copyright holders. Yes, Washington should not allow anyone to bootleg newspaper stories or magazine items for hundreds of people in an electronic discussion group. In fact, I’d once reported a gross offender to a magazine; I believed passionately in property rights. Clearly electronic books, of all media, should enjoy protection, which, in fact, TeleRead would promote by making piracy less lucrative. But we also had to understand the purpose of copyright law—to help spread information in a democracy and further the progress of science and the arts. Lehman either was disingenuous or had let his old $430,000 make him a little amnesic toward Constitutional tradition.

Ironically, if Lehman’s side won out, writers and journalists would be among the biggest victims of the very law designed to protect us. After all, we were not just producers of information; we were also consumers. To write a book I would absorb millions of words from the Internet, swapping information with friend after friend along the way, including, yes, some electronic newspaper clips. But the Green Paper bizarrely flouted the natural tendency of most people to share. Imagine the effect on teachers and children. Quite rightly, Jim Warren observed that Washington was cheating the public “to avoid controversy among ‘important’ people.”

“The Draft Report comes down firmly on the side of increased rights for copyright owners in all relevant contexts, endorsing the goal of enhanced copyright protection without acknowledging any countervailing concerns,” wrote Jessica Litman, a law professor at Detroit’s Wayne State University. In a reply to the Administration she said of the report: “It appears to be an advocacy document: It at times misrepresents the state of current law, and gives voice to only one side of complicated policy debates.”

Another expert, law professor Pamela Samuelson at the University of Pittsburgh, lambasted the Green Paper in an article for Communications of the ACM, published by the Association for Computing Machinery. She said that “not since the King of England in the sixteenth century gave a group of printers exclusive rights to print books in exchange for the printers’ agreement not to print heretical or seditious material has a government copyright policy been so skewed in favor of publisher interests and so detrimental to the public interest.” Contrary to Washington’s claim, the Green Paper was not just a tweaking of existing law but a radical revision in favor of publishers.^[6.44]

Directly Orwellian questions arose. What about enforcement? How to thwart the ease of mailing copies over the Net? The Green Paper’s designers thought that laws against circumventing copy protection would provide one of the main answers. But in the case of electronic text, such visions were far too sanguine. People would want the capability to print out material, and if they could print it out, they could scan it and put it online again without the protection feature; what’s more, hackers would inevitably develop software to accomplish the same thing electronically.

Yes, the Green Paper would let publishers and others sue makers of devices that could get around copy protection. But just what gear was covered? Scanners? Fax machines? And what kinds of software? What about legitimate programs that also had illicit uses? Were we the new Soviets, living in fear of the digital equivalent of copiers and other subversive gadgets? As William Buckley would write, “fax machines and e-mail outwitted and frustrated even the comprehensive revolutionary orders of Stalin and Mao. This side of what used to be the Iron Curtain, we should have the resources to handle our native bureaucracy.” The Green Paper was nothing more than Big Bureaucracy trying to serve Big Business.

The Green Paper had much in common with Clipper. In both cases bureaucrats were reducing respect for Washington by trying to control the uncontrollable. I was hardly a kneejerker crying out for a pigmy-sized government. My liberalism remained. I favored prenatal nutrition programs, Head Start, public broadcasting, and a host of other wonderful anachronisms from the heyday of the Democrats. And yet here was the Clinton Administration blundering along in the most obnoxious way and turning so many of my fellow liberals on the Internet into libertarians.

If nothing else, the White House was complicating my job of trying to sell the Net on TeleRead. It was not just a question of preempting my idea in favor of an inferior solution rigged up for Clinton’s powerful friends in entertainment and publishing. Like Clipper, the Green Paper was lessening faith in Washington, period—no small concern for somebody advocating a national program such as TeleRead, even one developed with local sensibilities in mind. Sometimes I wondered if Lehman might be a Manchurian Patent Commissioner.^[6.45] Had the Libertarians brainwashed him to sully Washington’s good name?

Again and again I flamed Lehman’s Green Paper on alt.activism and at least half a dozen other newsgroups on the Internet. I hadn’t any choice. He hated the bytes-want-to-be-free philosophy of TeleRead. Clearly, if Lehman had read TeleRead, it would have driven him nuts, given his apparent belief that copyrighted books must cost readers. TeleRead, on the other hand, would mean fair treatment of copyright holders and library users alike. With a TeleRead-style library, publishers, writers, and private nets could still charge for many categories of information and earn handsome sums from online conferences and other services and products, including customized software to guide people through electronic libraries. Also, they would receive fair royalties for covered material such as books. At the same time, however, thanks to the cost justification provided by the e-forms, we could make electronic books free in this TV-fixated era and thus encourage literacy.

Surely TeleRead could be a logical link between Gore’s plans for reinventing government and his oft-claimed desire to drive down the cost of knowledge. With TeleRead, the old scarcities could be obsolete; rich and poor could dial up the same books. It would be a far cry from the present when Beverly Hills spent many times more on library materials than did some poorer jurisdictions. TeleRead was not a cure-all; but in an era of tight budgets, the national library could be phased in carefully, year by year, topic by topic, with minimal pain. The reduction of expensive, onerous paperwork would be like a tax rebate. For once, a program could simultaneously help schoolchildren and small business people.

Perhaps the NII Advisory Council would see merit in TeleRead. The White House didn’t necessarily have to follow its recommendations, but wasn’t this the age of electronic democracy and citizens’ input? A few problems had arisen, however. Bill Clinton’s people had tolerated just one librarian among the more than thirty members of the Council. An overworked teacher was there representing education. But no full-time professional writers of books, and just one newspaper publisher, had ended up tainting the Advisory Council.

Nor did any name show up from a distinguished publishing firm such as Knopf or Farrar, Straus and Giroux. Instead the White House blessed the NII with Vance Opperman, a friend of Al Gore’s and a money man for the Democratic Party,^[6.46] who was president of West Publishing. By one estimate West grossed some $600 million a year with pretax margins of almost 30 percent, or twice those of rivals.^[6.47] West-style firms were famous for Cadillac-priced data. Opperman’s company had set up collections of court opinions and slapped a proprietary system of citations on them. The meter typically ran at $4 a minute or more, adding up to millions from Feds and taxpayers alike.

Haunted by a group called the Taxpayer Assets Project, the Justice Department had proposed an electronic database with public-domain citations to help users locate material. But West had lobbied away the plans. Nothing must deprive Al Gore’s friend, and so many other politicians’ friend, of a chance to turn a buck. Opperman seemed about as eager to drive down the cost of knowledge as Bull Connor was to further civil rights in the days of cattle prods and police dogs.