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From slavery to COBOL
Recently Yale University renamed one of their “residential colleges” (dorms): it had previously been named after John C. Calhoun, and now is named after Admiral Grace Hopper. The administration explained that although they don’t intend to go around renaming everything to satisfy every politically correct complainer, this was a particularly egregious case: the original naming after Calhoun had been not because of any strong link to Yale, but to honor Calhoun’s career as a politician, notably his advocacy of slavery as a “positive good” and of white supremacy. The college had featured a stained glass window depicting happy slaves on a plantation, recently smashed in protest. The original naming was done in 1931, long after Calhoun’s death, long after the Civil War, and at a time when white supremacy was, in the terms of today’s social networks, “strongly trending”.
Today, of course, one thing that is “strongly trending” is advocacy of women in technology. But skepticism as to such trends should not stop one from honoring people who truly deserve it. And for all I know Hopper does: I have not made any real examination of her career, but the occasional things I have heard of her have been positive. Still, the particular grounds called out by the Yale administration for naming the college after her are problematic. They seem to center around her efforts in advocating “word-based computer languages”, of which COBOL is the prime example, and one which she was instrumental in.
COBOL today is almost as dead as slavery was in 1931; and just as the namers in 1931 seem not to have asked the descendants of slaves to weigh in on Calhoun, programmers seem not to have been asked what we think of COBOL. Personally, I never had to suffer through COBOL (it was before my time), but suffering was the word. For one thing, the language was quite verbose. A dominant language today is C++; the name of that language is not only its name but a statement you can write in it. The corresponding statement in COBOL is “ADD 1 TO COBOL GIVING COBOL”. Now, admittedly nonprogrammers likely will be able to guess what the latter statement means, whereas with the former statement you just have to know. But programmers do know, and we object to having to write mountains of text to convey what to us has become simple. To force us to do so isn’t humane, it is inhumane: it denies us one of the main human powers, that of learning and developing skills.
So while Yale has changed the name of the college, it is still named in honor of a failed effort to crush the human spirit.
Crypto and the Second Amendment
In the Crypto Wars, arguments have occasionally been made that there is a constitutional right to cryptography. Most recently, Apple made that argument in trying to fend off the FBI’s request to help break into an encrypted phone. It went roughly as follows: writing code is an expressive act, freedom of expression is protected by the First Amendment, and so they can’t be forced to express themselves in ways they don’t want.
I don’t think this argument would have fared well in the courts. Corporations (and individuals) are regularly forced to express themselves in ways they don’t want. Enviromental regulations force them to write MSDSs (among many other things). Tax regulations force them to fill out tax forms, and the ways they do so can be, uh, highly creative. Being forced to express themselves in such ways doesn’t prevent them from making whatever arguments they want in public.
But there is an amendment in the Bill of Rights that really is a good match: the Second. The Second Amendment is about private possession of weapons of war; crypto has eminently been a weapon of war. It is about preserving the ability to resist tyranny; and if the government were to have the power to snoop on every communication in a modern computerized society, it would enable a level of tyranny so oppressive as to make every tyranny in history seem mild in comparison. It is also about self-defense against criminals; and there too the fit is good — not just because cryptography is essential for protecting such things as online banking transactions (though it is); it also ties in to personal self-defense, as might be performed with a firearm. To assassinate someone, a key piece of information is where they will be in the future; a good defense against assassination is to vary one’s schedule in an unpredictable manner. If you can read a person’s communications, you can predict where they will be; and if you can predict where they will be, you can put a bomb there or send a gunman there. If they will be wearing a bulletproof vest or bringing a bodyguard, you can get that piece of information too from their communications, and choose your weapons so as to pierce that vest and your team so as to outnumber any bodyguards.
To return to Apple’s argument, firearms design can be quite an expressive act too. The designs of John Moses Browning are said to have a distinctive character, and are revered by many; one of his designs, the M2 heavy machine gun, recently completed its hundredth year in active duty with the US Army. But people would think a gunsmith was out of his mind if he proclaimed that he had a First Amendment right to make whatever firearm he wanted, and would tell him: no, whatever rights you do or don’t have in that regard come from the next Amendment in the list.
To say that the Second Amendment covers crypto is admittedly a completely novel interpretation of it; but much is said about the need to interpret the Constitution in accordance with the needs of modern society, and this is a lot more natural than many of the reinterpretations that have been foisted on us under that argument. Technological change means that cryptography isn’t, as it was in the era of the Founding Fathers, just something done by hand; now it’s weaponized, so weapons freedoms apply. The First Amendment protects discussions of weapons; the Second Amendment protects actually fielding them.
This is not to imply that all the present rules for firearms would apply without change to crypto, or that they’re even really the right rules for firearms. It’s too easy to use crypto without knowing it, and too much of modern society depends on doing so, for there to be much sense in, say, prohibiting it for convicted felons. It’s also a lot easier to download a program than to make or buy a firearm, which weighs strongly in favor of having the laws looser: a law that’s too easy to flout is best not made at all. Also, there are many sillinesses in weapons law, and it would not do to duplicate all those for crypto. But making use of the Second Amendment would still be better than not making use of it.
That’s the name of an exemption from the Freedom of Information Act: government agencies don’t have to reveal records if they are part of “the deliberative process”. Congressional subpoenas are limited by the same or a similar exemption, under the name “executive privilege”. But the reasons for these things are rather mysterious: when government officials are conspiring with each other (“deliberating”), isn’t that exactly the sort of thing the public should know? Or that Congress should know, in the case of “executive privilege”?
For that matter, what exactly these exemptions consist of is not entirely clear. Lawyers would probably tell me that it’s clear, but they would also probably advise me that to determine whether they apply in any given case I should avail myself of the services of a legal specialist who is familiar with the precedents set by a long series of court cases and who would charge upwards of $500/hour.
The general idea, admittedly, is clear enough: the exemptions protect records which are made by a government agency as it tries to decide what to do, and which would be rather embarrassing if released in public. To divulge them would reveal all sorts of floundering around: half-baked schemes, wrong ideas that got shot down, and abuse received by ideas that ended up successful. But pretty much any document an agency creates could be said to feed into its decision-making in one way or another, which yields endless opportunities for lawyers to squabble over the details.
Wikipedia’s stub article says that these privileges are “common-law” privileges, which is lawyer-speak for something that was invented by lawyers and judges rather than something that Congress passed into law (or, in the case of “executive privilege”, something found in the Constitution). “The theory”, it says, “is that by guaranteeing confidentiality, the government will receive better or more candid advice, recommendations and opinions”. Well, certainly there are people who would refrain from telling the government something if they knew it would become public. But that’s often because it isn’t actually true. Being known for saying an unpopular truth can be bad, but isn’t as bad as being known for saying an unpopular lie. (Popular ideas, whether true or false, are going to get heard by the government anyway.) For that matter, in practice these privileges mostly seem to be used to protect government employees, not outsiders offering advice. These people have chosen to be in government, and are being paid to be in government; they can stand a little embarrassment, even if undeserved.
Other arguments might be imagined. But these exemptions aren’t about national security secrets, where it is important that the public should know them but even more important that foreigners should not; national security has its own exemptions. Nor are they about protecting government officials from harrassment; in the case of FOIA that’s done by fees, and in the case of executive privilege it doesn’t really need to be done in the first place, since Congress has a lot less manpower with which to investigate than the executive branch has to respond to its investigations.
So what’s going on here seems to be that in response to lawsuits demanding documents, executive branch lawyers have argued that the Freedom of Information Act couldn’t possibly mean what it actually says, because that would be much too intrusive; likewise for Congress’s oversight powers. And the courts have been weak enough to buy those arguments.
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