Saturday, 11 July 2015


I admired Caspar Bowden’s mind before I met him in person. That may have been a good thing because - as others have already testified – in person he was a handful. And to deal with that handful properly it was maybe advisable to have a drink in your other hand. Or a blunt object. Or maybe just be the sharpest, wittiest, most intelligent, most probing, most suspicious, most cynical, most V for Vendetta version of yourself that you could possibly manage to be. Because he expected a lot from you and he didn’t suffer fools gladly.

We first meet at a workshop in the autumn of 2005. I have written an extremely detailed, rambling legal account of the fight against the Data Retention Directive, a fight we were about to lose, outlining the procedural intricacies of an EU legislative system that leaves little room for individual advocacy and a lot of room for political gerrymandering. The workshop is only my second foray into academic life after six years spent in legal practice. I expect much of the detail in my paper to go over people’s head, but it is a cause I am passionate about so I decide to stick with it. I start my presentation with a quote from Caspar’s Duke article on “CCTV of the mind”. I have seen his name on the speakers list, so on the off chance, I mention that the author of the quote may be somewhere in the audience. “That’s me”, pipes up the guy sitting directly in front of me. “Great!”, I think, “No pressure there then!”.

He corners me over coffee. He’s not normally a fan of lawyers, he says, but my obsessive eye for the detail of the EU legislative process and the political behind-the-scenes machinations has caught his attention. We chat. I have worked on this paper for months, doing desktop research, finding and reading all the boring background papers, connecting the dots, drawing conclusions. There is nothing new I can tell him, but he looks at me like he is impressed by my forensic abilities. We spend time over dinner, chat. I am a little bit in awe.

We meet again a year later at a conference in Hamburg. I’m surprised he remembers me, but he comes to see what will later be known as “my crazy paper”, says he likes it. We go for drinks. I ask him how he’s been and he tells me that he’s just accepted a position with Microsoft. I nearly choke on my wine and ask him why. “They offered it to me and I was intrigued”, he says. “Maybe I can do something from the inside. Also, I needed a job.”

It becomes a joke between us in the coming years. The fact that the most absolutist, uncompromising privacy fundamentalist I have ever met had gone over to the Dark Side. I tell him I worry that it will grind him down, affect his mental health. Over the years, his denials of that possibility become weaker. But when he finally gets out, he is angry. He rages against the machine even more than before, throws everything he has at it. Everything he has is a lot. He isn’t fond of compromise or restraint. He comes to a workshop I organize and aggressively attacks some of my more esteemed panelists. We have it out on the phone afterwards. ”Sometimes you catch more flies with honey than with vinegar”, I tell him. He disputes that but is sorry if he has embarrassed me. We agree he’s almost German. Our kind value the truth more than other people’s feelings.

Two years later, autumn 2012. We are asked to work together on organizing a panel for yet another conference. The choice of topic is up to us. The CJEU decision on the Data Retention Directive is imminent and I want it to be about that. To my surprise he disagrees. He wants it to be about mass surveillance in the cloud. It’s more important, he says. We argue. I am busy at the time, he is better prepared. He wins. As it turns out later, he was right.

We start discussing the panel, the speakers, the way we want things to go, whether either of us should speak ourselves. I can sense that he wants to, but it’s not the done thing and I wonder if it is wise. I know him by now and I also know why I was asked to do this with him. I’m to be the moderating influence, the good cop to his bad cop, so that he can go out there and do what needs to be done, what he does best. We lose a panelist at short notice and decide that, yes, he should speak.

A planned brief introduction turns into a 45 minute slide show full of small print text and intricate analysis of complicated FISA provisions, holes in human rights protection, US exceptionalism and the dangers for EU citizens if the EU does nothing.

The picture he paints is scary, borderline crazy. A spy movie, where James Bond is the villain. The audience is rattled. Probably half of them think he’s insane. A tin hatter that doesn’t have to be, can’t be, taken seriously. Because what kind of a world would we be living in, if he was right?

On our panel are representatives from the Commission, the EDPS and the European Parliament. The Commission rep denies that any of the scenarios Caspar paints are ever likely to happen. The others are less certain. Cats and pigeons debate the topic over lunch and Caspar is on his laptop, sending out his slides to everyone who wants them for the rest of the day. The conference ends and we wonder what to do with this now.

We decide to present separate papers at a US conference. Try and raise awareness in the US privacy community at least. He doubts they will follow our call to arms, I am more hopeful. I know he thinks I am naive.

As before, we argue about content, distribution, presentation, method, everything. One Saturday afternoon after shouting at each other for hours on e-mail and skype I decide I’ve had enough. I mail him setting out my position one more time and tell him, “This is a compromise but these are my red lines. Call me if you want to discuss this further. If not, have a nice life.” I don’t get a response and we don’t speak for three months.

Until the next conference we’re both at when he once again corners me during the break.

“Are you still talking to me?”, he asks, somewhat sheepishly.

“I will always be talking to you.” In all honesty, I’m surprised HE’s talking to ME.

“You told me ‘Have a nice life’”, he says.

“I told you ‘Call me if you want to discuss further’“, I respond. “YOU didn’t get back to ME”.

We get coffee, sit down, miss the next two sessions chewing the fat and I realize that this person, who has wandered in and out of my life for the last seven years, has actually become a friend.

In the end only I end up going to the US conference. At the last minute he tells me he’s decided to boycott it because he isn’t happy with the sponsors. I groan but I don’t say anything. I have reservations myself but I make a judgment call. And I want this article out there.

The paper is scheduled for the morning of 7 June 2013. Jet lag wakes me early and a quick perusal of the Guardian website tells me that a black hole in the form of the PRISM revelations has just opened up in the known universe. They publish detailed descriptions of US mass surveillance and it is clear that almost everything Caspar has talked about for the past two years, everything he warned might happen and was dismissed as a crank for, is actually happening already. I send him an e-mail and wish him “Happy ‘I Told You So’ Day”.

They are nine hours ahead and he has already spent them giving interviews and explaining background to a suddenly interested, rabid press. He is exhausted and still somewhat shell-shocked by the extent to which he may have been right all along. He says, “...but sweet Jesus Christ, sort of feels like Columbus stumbling ashore and finding strip malls, McDonalds, and Coca Cola billboards already there...”.

I am borderline hopeful that this might change things, he is already worried that it might blow over. The coming years show that we are both right in our own way. Stuff happens but the Empire re-groups quickly.

I wish him “Happy ‘I Told You So’ Anniversary” in either of the following years but when I do it this year we both already know that it might be the last time. There are plans for a visit in August but nothing firm yet. He is still his usual self and fears are repressed and replaced by the hope that his stubbornness might help him to fight this one too. Then his name flashes up in the subject line of several e-mail alerts and I know. As my various tech lists and social media accounts explode in tributes I feel numb. We have lost a friend but, more than that, a very noticeable gap in our ranks has just opened up that we will now somehow have to close. How are we going to do that?

How important can one person be to the world, to a cause? Except to our loved ones, we are all of us replaceable, we have to be. But if one person with his knowledge, his experience, his analytical skills, his tenacity and his pure natural born ability to piss off the powers-that-be and hold them to task, if this one person is no longer around, will that make a difference in the fights we have yet to fight? 

It will make a difference to me, for sure. There are very few people I know, who will always be on the other end of an e-mail, a tweet or a skype call whenever I need a question answered, an idea critiqued, a project have its tires kicked. He was one of those people and I will miss him terribly for that.

But more importantly, I know that his job isn’t finished and that there are fights coming up where his absence will be felt. He was keenly aware of that himself and I know it must have killed him, the idea that he would not be around for that.

In the days after his death I read a few obituaries and am reassured by the overwhelming outpouring of love and respect for him and his work, both from his friends and from the tech community. All of a sudden I have this image in my head where he has been mischievous one last time and where he has staged his exit a month or two early just to be able to see all this for himself. Where he still is around somewhere, bending over his laptop, smirking in amusement at the memories we share and the things we say about him that maybe we wouldn’t have told him to his face.

It is wishful thinking, of course, but it is also evidence of that tin hatting quality we both shared. Never believe the obvious, always consider the alternative. Why is this lying bastard lying to me now? If he was still out there and read this, I know it would make him laugh. He’d probably be proud of me for suspecting.

There is a big part of me that wants that picture to be real because I would want him to know how well respected he was by everyone, even those who argued back. Maybe especially those who argued back. I’m not sure he always did know that.

He was a friend, a fellow traveller and a goddamn nuisance. He was that guy who would argue with you until they throw both of you out of the restaurant. That guy who just wouldn’t shut up even when you wanted him to. And he would encourage you to continue and fight long after you would normally have given up from exhaustion. He didn’t expect anything less of you.

Neither of us believed in a supreme power or any kind of heaven or hell, I think. But it is difficult to accept that an energy like that can simply just vanish. If there is an afterlife of any kind, I hope that those who rule it are ready for him. Because if they're not, they won't know what hit them.

Tuesday, 16 December 2014

The “Born This Way Fallacy” or Why we shouldn’t feel the need to resort to biological determinism to invoke our human rights

It’s December, it’s been grey outside for weeks and Matron has far too much work to do. What better time to procrastinate on something complete unrelated to the day job?* 

In this case, the plan is to vent on another one of those “gay rights” arguments that periodically come up between Matron’s generation and the next (and the one after, and the one after that) and it’s about the best way to frame the call for recognition of LGBT (QIP… and any other letter in the alphabet that anyone cares to add) rights. It’s about biological determinism and whether we should use our bodies and the alleged immutability of our sexual preferences and desires in the context of legal and policy discussions. It’s been something of a bug bear of Matron’s for a while, so the emergency exits are here, here and here.

For the last few years, and particularly in the context of the equal marriage debate, the case for equality has often been based on the argument that people are “born this way”, that they can’t help who they love and that discrimination on the basis of something that is innate and that they have no control over is inherently unfair. 

Of course, Lady Gaga hasn’t helped matters, although in actual fact, Matron has (almost) no beef with Gaga’s particular take on the statement (beautifully embraced in one of Matron’s favorite Glee numbers ever), which is much more about self acceptance than about what other people think of you in response to whatever deviation from the norm you represent. So, she’s fully on board with the Gaga sentiment:

"Don't hide yourself in regret,  
Just love yourself and you're set, 
I'm on the right track, baby 
I was born this way"
But as Suzanna Danuta Walters explains in some detail in her article "An Incomplete Rainbow", there is a bright red line between self acceptance and asking for acceptance from others, between demanding rights regardless of who you are and asking for tolerance because of who you are. Because rights and equality are things that I should have by virtue of the fact that I am a human being among other human beings. Tolerance is something that is handed out to me by someone who feels that there is something (wrong? abnormal?) about me that they are willing to overlook because they are nice. In that way, the “born this way” argument is a deeply flawed, apologist approach by a community that is begging for crumbs from the table rather than stamping its authority on the rights discussion we are all involved in.

It is an argument that relies in no small way on a certain kind of biological determinism. As Walters highlights:
“[T]he idea that sexual desire and identity are hard-wired (through lavender DNA, or an endocrine system that washes the infant in homo fantasies, or a kinky hypothalamus) reaches into legal arguments, familial conversations, political speeches, Broadway musicals, teen television, movement websites, and, of course, pop songs.”
It is nevertheless a fallacy, for several reasons.

For one, if biology can be used to demand tolerance, it can be used to justify discrimination. As @nigelwUK pointed out to her on Twitter, the old UK headline about the benefits of identifying the “gay gene” was “abortion hope after ‘gay genes’ findings”. As a serving Kraut, this speaks deeply to Matron given the way in which her home country has previously used biological characteristics to “cleanse” the population from all undesirable genetic elements.

But it is also a fallacy because it isn’t true, at least not for all the people all the time, and it is the rights of those people for whom it isn’t true that are sold down the river when queer activists base their campaigns on a “born this way” argument.

Before Matron came out at the tender age of 21, she had had three serious and meaningful relationships and a small number of hook ups with men. There is no regret about those relationships and encounters, including their sexual aspects, and some of those men are still her friends. There was no epiphany at the time about how she was always supposed to be with women and how those previous relationships were a mistake or a failure and there is no general - biologically determined - bar on her possibly hooking up with a man again, should she and the current Mrs Matron ever decide to call it quits.

Nevertheless, Matron calls herself a lesbian, rather than bi-or pansexual, because the right to define her own identity is up to her and because on a day-to-day basis she prefers to be with a woman rather than a man for a host of reasons too complex (and too private for a privacy lawyer) to go into in a blog post. Her lesbian identity is therefore as much a (political) choice as a physical reality. But because she hasn’t been with a man in more than two decades, this truth, which is clear in her own mind, is in constant danger of being subsumed into a “won’t do men, because she can’t do men” narrative in the mind of others. And in the context of a born-this-way based argument that leaves her vulnerable. 

Because if her lesbianism is a choice, she cannot use an immutable biological state of affairs as a reason to call for, say, marriage equality. If she really wanted to, she could get married in ever country on the planet– to a man! She could live the gender-role conformist life most people would expect her to lead and while that might still do untold harm to her sanity, it would not be physically or even emotionally impossible. Which is why, before the gay liberation movement, a multitude of lesbians and gay men through the ages have chosen to do just that, simply to be able to have any kind of life that was acceptable to the societies around them.

And because this is so, less enlightened people in a born-this way world could use this as an argument for why she and others like her should not have the right to be married to a woman. Because she could do different, she could do “better”, she could do right by everyone, she could marry a man.

But Matron doesn’t WANT to marry to a man. Heck, she isn’t even that keen on getting married to a woman, but if marriage was on the agenda, there would currently only be one – decidedly female – person in the frame as a potential partner-in-crime. So what rights do we give someone, who is not “born this way” but has freely chosen her own personal brand of deviancy?

As an old-style 1980’s feminist, Matron can’t help but be frustrated about the way in which we as a community are going backwards on this issue of ethical reasoning, even as we are making significant headway towards a more equal society on a factual level. Of course, Matron is fully aware that there are any number of LGBT people who see their sexuality as fixed and immutable, who do not think that they have a choice in the matter and who cannot see themselves ever falling for someone of their non-preferred gender. And that is fine - for THEM. But it isn’t like that for all of us.

Matron is also aware that people in some quarters (I'm looking at you, crazy religious fundamentalists) will quickly use any admission that sexual orientation/preference/desire may be more fluid to advocate a light course of sexual re-programming or worse. And for those that are subjected to this kind of treatment, the effects are undoubtedly severe. 

But should the answer to this problem really be the establishment of a politically expedient “public truth” about the immutability of sexuality if this truth denies the lived experiences of quite a few members of the LGBT community? Or should we rather argue that the way in which each of us defines ourselves and our identity is a question of personal autonomy and self-determination, and that nobody, NOBODY, has any right to interfere with that autonomy unless the expression of that identity personally harms them (and quite honestly, how could it)?

There was a time when, as a community, we realized that sexuality was a spectrum on which people came down at different points, and not always at the same point during the span of their lifetime. There was an acceptance that things can change, that sexuality is a many splendoured thing and that you can fall in love with the person, not the gender, even while you are using your “deviant” relationship to highlight discrimination and to make the point that the personal is political. Queer campaigning was a much less timid, apologetic, making-nice-with-the-powers-that-be art form than it is now and in Matron’s wistful, old fogey view we were the better for it.

Because rights should be for all of us, regardless of where on that spectrum we reside and whether we tap dance about on it by choice or otherwise.

In other words, I’m not asking you to treat me fairly because I was born this way and can’t help myself being gay. I’m demanding you treat me fairly because I’m a fucking person and you have no reason not to.

*Also, today is the day that equal marriage becomes legal in Scotland for the first time, so this is kind of topical after all.