Tofte Ventures

← All notes

A Right You Can Turn Off

A right you can turn off when it becomes inconvenient was never a right. It was a courtesy, and courtesies get withdrawn.

I worked through this a while back and have not changed my mind about any of it. I have just gotten better at saying it.

Six weeks

In the fall of 2001, about six weeks after the towers came down, Congress passed a surveillance law with almost no debate. The country was in shock. The pressure to do something was enormous, and the bill was long, and hardly anyone read it.

I want to be fair about this. The people pushing it were not cartoon villains. They genuinely believed more visibility meant fewer funerals, and they had just watched a catastrophe they did not see coming. If you have ever made a decision in the week after something terrible happened, you know exactly how that feels, and you know what your judgment is worth in that week.

That is the whole problem. We write the rules that constrain power during the exact moments we least want to be constrained.

The library part

Of everything in that law, the piece I keep coming back to is the one about libraries.

There was a provision letting the government demand records, any records, from a business or institution during an investigation. It got nicknamed the library provision, because libraries were the clearest example of what it meant in practice. The government could ask what you had been reading. And the person who handed over the records was forbidden from telling you, or anyone, that it had happened.

I understand why the reading part is the part that got me. It is not that a library card is more sacred than a bank statement. It is that what you read is the record of what you were curious about before you knew what you thought. It is the most unfinished thing about you. Most of what I have ever read, I read because I did not understand something yet. Watching that specifically is watching people think, at the stage where thinking is most fragile.

Then add the gag. Not only can we see what you were wondering about, nobody is allowed to tell you we looked.

The librarians

Here is the part I find genuinely moving, and it is the reason I kept these notes at all.

Librarians have a professional code of ethics. It is not a law. Nobody goes to jail for violating it. It says, in the third of its principles, that librarians "protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted." The second principle says they "uphold the principles of intellectual freedom and resist all efforts to censor library resources."

So a whole profession woke up one day to find that their code and the law now pointed in opposite directions. Follow the code and break the law. Follow the law and break the code.

Some of them chose the code. They challenged the orders. They fought the gags in court. They did it without any power of their own, no budget, no lobby, no leverage, on the strength of a document that says this is who we are and this is what we do not do.

I think about that more than I think about the legal arguments. A profession with no power at all acted as a check on a government with all of it, because enough people took their own standards seriously when it got expensive. That is not nothing. That might be the only thing that has ever worked.

What happened to the law

That provision expired in 2015. It came back in a narrower form, with the bulk collection part banned, and then it lapsed again in the spring of 2020 and has not been renewed since.

So you could say the system worked. Slowly, partially, nineteen years later, but it worked.

I would say something slightly different. It worked because people kept making noise for nineteen years about a thing that had already happened, that most of the country had stopped caring about, with no guarantee it would ever go anywhere. The correction was not automatic. It was somebody's unglamorous job for two decades.

The part that is not about the government

Here is what I actually believe now, and it is less comfortable than the version I first wrote.

The surveillance most people live under today did not require a law. Nobody had to suspend anything. We clicked accept. Your reading, your location, your purchases, your searches at two in the morning are collected, packaged, and sold by companies you have never heard of, and there is no gag order because there was never any secrecy to begin with. It is all in a document you did not read, and it is completely legal.

In some ways that is worse. There is no emergency to point at, no vote to be outraged about, no provision to let expire. There is just a default that everyone accepted one checkbox at a time.

This is part of why we built a tool that finds where your personal information has been listed and gets it removed. Not because privacy should be a product. It should not be. The fact that removing yourself is tedious enough that software helps is itself the indictment. But the default is exposure, and somebody has to do the clerical work of undoing it, and until the default changes that work is worth doing.

What I actually took from it

Rights get tested when they are inconvenient. That is the only time the test means anything. Anybody will respect a right that costs nothing.

Codes of conduct are worth more than they look, but only if somebody is willing to pay for one. A code nobody has ever refused anything over is decoration.

And the default matters more than the exception. We spend our outrage on the dramatic moment, the law passed in six weeks, and we let the quiet permanent thing become normal because it arrived slowly and nobody voted on it.

That last one took me the longest to see. It is still the one I am most sure about.

Gunnar

Founder, Tofte Ventures LLC

Sources