Between Secrecy and Transparency

Digital networks are disrupting public space from the bottom up, first and foremost because they utilize publication technologies that completely reshape the relationship between public and private, in every sense of these terms. In so doing, they redefine from their very roots the questions, paradoxes and aporias that positive law – from ancient Greece and through Rome, canonical law, the Napoleonic code, and all the theories and philosophies of ‘natural law’ from the classical age to modern and contemporary critiques of law – has always sought to resolve in social terms.

Digital and computational technology has made it possible to greatly expand the spheres of publication, and hence of transparency – as for example with open data. In this respect, it has enabled democratic safeguards to be strengthened, such as those that depend upon the publication of government data and facts, and the requirement to publish this data and these facts in accordance with legal obligations.

The transparency of rules, data and facts, however, should in no case mean the elimination of the secret. On the one hand, public rules and public data are in fact themselves never ‘transparent’: they must be interpreted. On the other hand, the revelations of Edward Snowden have made it obvious that transparency conceived as the transgression of all limits and the elimination of all secrecy would constitute a fundamental violation of the very possibility of law, namely, the legitimate possibility of secret deliberation, whether this is a matter of:

• a public figure of authority who, either individually or collectively, deliberates in secret as part of a negotiation (that is, of a balance of power), this being the framework that perpetually constitutes political life, given that the latter consists in authorizing peaceful conflicts, that is, the diversity of opinion, but where this also applies to economic conflicts, that is, legitimate competition;
• or an ordinary person who, in a lawful state, has the right to cultivate feelings and ideas that he or she prefers to keep secret – a right to secrecy that is the condition of possibility of any singularity whatsoever, and of every protection of what, as singularity, is the guarantee of the possibility of a future, that is, of a capacity to transform the law in the course of a process of psychic and collective individuation in which the psychic individual can and must differentiate and individuate itself, and for which the legal collective individuation codified by law constitutes, precisely in that, its legality.

This panel will discuss both the possibilities that applied cryptography can help preserve fundamental rights in an era of mass surveillance. We'll look at the political history of the field of cryptography, the subversion of cryptographic standards by the U.S. government, and the challenges facing cryptography due to quantum computing. Then we'll focus on the necessity of usable cryptographic and privacy-enhancing technologies given the lessons of Arab Spring in 2011 and the challenges facing Europe in the coming year. The panel will feature both activists and cryptographers in order to open a dialogue between them.

Moderator: Harry Halpin

Researchers and Ph.D. students funded by the EC NEXTLEAP proposal will present their work in progress, including the unveiling of a platform to collectively discuss Internet Rights.