There is one notable aspect to the Volkswagen emission-cheating scandal that few commentators have mentioned:  It would not have happened if the software for the pollution-control equipment had been open source.

Volkswagen knew it could defraud consumers and deceive regulators precisely because its software was closed, proprietary and legally protected from outside scrutiny. Hardly anyone could readily check to see if the software was performing as claimed.

Sure, dogged investigators could laboriously compare actual car emissions to emissions in artificial regulatory tests. That’s essentially what broke open the Volkswagen scandal. But that is an expensive and problematic way to identify cheaters.

The larger question is why should a piece of software that has enormous public health and environmental implications be utterly impenetrable in the first place?  A locked box invites lawless, unaccountable and sloppy corporate behavior. It assures that hardly anyone can see what’s going on. Volkswagen exploited the cover of darkness for all that it could.

This lesson was driven home when columnist Jim Dwyer of the New York Times hailed free software attorney Eben Moglen – the former general counsel for the Free Software Foundation and founder of the Software Freedom Law Center – as “a prophet.”  Dwyer quoted Moglen:

Intelligent public policy, as we all have learned since the earth twentieth century, is to require elevators to be inspectable, and to require manufacturers of elevators to build them so they can be inspected.  If Volkswagen knew that every customer who buys a vehicle would have a right to read the source code of all the software in the vehicle, they would never even consider the cheat, because the certainty of getting caught would terrify them.

But since the code is proprietary, automakers know that they have plenty of room to cheat.  Not only is the code inscrutable, automakers realize that the U.S. Environmental Protection Agency has only enough funding to test 10-15 percent of new vehicles. That means “self-certification” is the primary means of enforcement: an utter joke.

Worse, inquisitive consumers can’t even check the software themselves. Under the Digital Millennium Copyright Act, it is a crime to breach the encryption of copyrighted software and look into its source code.  Wired magazine reported that last year, a number of open source advocates tried to make it legal to scrutinize copyrighted software for “good-faith testing, identifying, disclosing and fixing malfunctions, security flaws or vulnerabilities.”  But of course, the politically powerful auto industry squashed the idea, claiming that open access to the code would pose “serious threats to safety and security.”

The Volkswagen scandal shows that the real, larger threat to security comes from proprietary code controlled by large corporations, not from its open release. Why should we rely upon politically compromised, budget-starved government agencies to enforce the law against corporations who can use technological lockboxes to mask their deceits?  (The Volkswagen scam had been going on for years.)  Why not look to a supremely effective, transparent and virtually free form of enforcement – mandatory open source code?

In the wake of the 2008 financial meltdown, some brilliant minds made the same point about the Securities and Exchange Commission’s oversight of banks and financial institutions.  Why not require the disclosure of key financial statistics so that inquisitive minds could use open data analytics to spot dangerous trends in financial markets with greater speed and ferocity than the SEC?

Volkswagen has shown why open code would make automobiles safer and more environmentally benign.  Why not open code, Moglen asks, for airplanes, medical devices, anti-lock brakes and throttle controls in automobiles? Open source is our best protection against criminal hacking and corporate fraudsters alike.

Memo to government regulators everywhere:  Want to improve public safety and environmental compliance at a fraction of current costs and before the harm happens? Require open source code on critical technologies.

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The ongoing Snowden revelations about NSA surveillance have all sorts of implications for the rule of law, constitutional democracy, geopolitical alignments, human rights and much else.  The disclosures deserve our closest attention for these reasons alone.  But what do these revelations have to do with the commons?

If we regard the act of commoning as a genre of citizenship – acts of voluntary association and action that are critical to human freedom and democracy – we can see that snooping by both the NSA and its corporate brethren are profoundly hostile to the future of the commons.  They violate some fundamental notions of human rights, civil freedoms and the ability of individuals to protect their privacy and thus their sovereignty.

If the market/state apparatus can digitally monitor our reading habits and telephone calls, email correspondence and purchases, physical movements and much else, then it has effectively snuffed out the sovereignty of a free people. The barrage of the successive Snowden disclosures has been followed by a relentless government propaganda war, cable TV denunciations and even attacks on Greenwald by the liberal nomenklatura (Michael Kinsley, George Packer). It’s as if “respectable opinion” did not care to note or defend the elemental human freedoms that a functioning democracy requires.

It was such a pleasure therefore to (belatedly) encounter a series of four lectures delivered last fall by Eben Moglen, a law scholar and historian at Columbia Law School, founder of the Software Freedom Law Center, and former general counsel of the Free Software Foundation.  The four talks — “Snowden and the Future” — offer one of the most eloquent and historically informed critiques of the Snowden revelations and their implications for freedom, democracy and – I would add – the capacity of people to common.

The lectures address the following themes:

•  What has Edward Snowden done to change the course of human history?
•  How does the evolution of surveillance since World War II threaten democracy?
•  What does it mean that information can be both so powerful and so easily spread? In a network embracing all of humanity, how does democracy survive our desire for security?

On this blog, I try to avoid venturing into topics that veer off-topic such as, say, national security politics or election campaigns.  But I make an exception in this case because the rise of state surveillance in collaboration with the corporate digital giants has enormous ramifications for the commons movement. The NSA’s routine and sweeping surveillance not only affects our potential to think and act as commoners by installing fear and self-censorship; it seeks to structurally and permanently lock in such profound unfreedom. It makes any bottom-up citizen initiative or commons subject to absolute government control, as enabled by absolute top-down control of the Internet and all communications infrastructures:  a totalitarian growth upon a nation that has fought and died for freedom.

Free software champions have long pointed out the enormous importance of free/libre/open source software – and digital commons more generally – as guarantors of basic human rights and freedoms.  Now the reality of these assertions has been vividly confirmed.

It is a treat to see a law scholar who clerked by Justice Thurgood Marshall and has defended legal software encryption, address the meaning of the Snowden disclosures. I will not attempt to summarize Moglen’s incisive, powerful commentary, but I will offer this excerpt as a taste, and encourage you to read the entire four lectures.  It’s a long read, but well worth it:

The power of that Roman Empire rested in its control of communications. The Mediterranean Sea, which was the transit hub of every western civilization, was their lake. And across their European empire, from Scotland to Syria, they pushed the roads—roads that fifteen centuries later were still primary arteries of European transportation. Down those roads which, as Gibbon says, rendered every corner of the Empire pervious to Roman power, the Emperor marched his armies. But up those roads he gathered his intelligence. Augustus invented the posts: first for signals intelligence, to move couriers and messages at the fastest possible speeds; and then for human intelligence. He created the post-chaises, so that, as Gibbon says, those who were present when dispatches were written could be questioned by the Emperor. Using that infrastructure for control of communications, with respect to everything that involved the administration of power, the Emperor of the Romans made himself the best informed human being in the history of the world.

That power eradicated human freedom. “Remember,” says Cicero to Marcellus in exile, “wherever you are, you are equally within of the power of conqueror.”

[…snip…]

Because of Mr. Snowden, we now know that the listeners, in their aggressive effort to maintain the security of the United States by breaking anything that stands in the way of listening, undertook to do what they repeatedly promised respectable opinion in the trade they would never do.

Systematically, they attempted what they had once and for all promised many a time in the discreetest but most credible fashion to respectable opinion, which then carried their water for them throughout our world. They always said they would not attempt breaking the crypto which secures the global financial system.

That was false.

When, on September 6th, the New York Times re-entered the pursuit of journalism in this area so triumphantly, by revealing the existence of Bull Run, publishing Mr. Snowden’s various disclosures concerning both the substance of Bull Run and the National Security Agency’s discussions of it, we learned that the United States listeners had been systematically and deliberately trying to subvert the crypto that holds the international financial system together, for years. And we learned a good deal more—which we shall spend more time upon on another evening, considering carefully what we learned in this respect—we learned that their efforts had been so far only partially successful.

Within hours they had forfeited respectable opinion around the world, which had stood solidly in their corner all the way along. The recklessness of what they had done, and the danger to which it put the people in the world who don’t accept danger from the United States Government, was breathtaking.

When the morality of freedom is so thoroughly thrown away, it isn’t only the “little people” of the world who suffer, but they do.

The empire of the United States, the one that secured itself by listening to everything, was the empire of exported liberty. What we had to offer all around the world was freedom—after colonization, after European theft, after the forms of twentieth-century horror we haven’t even talked about yet—we offered liberty; we offered freedom.

In the twentieth century we were prepared to sacrifice many of the world’s great cities, and to accept the sacrifice of tens of millions of human lives, in order to secure our selves against forms of government we called “totalitarianism,” in which the State grew so powerful and so invasive that it recognized no longer any border of private life, and brought itself into everything that its subjects did. Where the State listened to every telephone conversation, and kept a list of everybody every troublemaker knew.

So let us unfortunately tell the truth as it appeared to the people who worked in the system: When the morality of freedom was withdrawn, our State began fastening the procedures of totalitarianism on the substance of democratic society.

There is no historical precedent for the proposition that the procedures of totalitarianism are compatible with the system of enlightened, individual, democratic self-governance. No one has ever previously in the history of the human race evolved an argument—and as I will show next time no argument can be evolved—that would give us any confidence in the ability of the procedures of totalitarianism to coexist with those of constitutional democratic self-governance. It is enough to say for now that omnipresent invasive listening creates fear. And I need not be Justice Brandeis to tell you that fear is the enemy of reasoned, ordered liberty.

Here are the four parts of the Moglen lectures, available in video, audio and print formats:

I.  Westward the Course of Empire 

II.  Oh, Freedom 

III.  The Union, May it Be Preserved 

IV.  Freedom’s Future 

Originally published at bollier.org

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