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War of the Whales


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Privacy by Design

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Posted on Jul 24, 2012
Furryscaly (CC BY-SA 2.0)

By Alexander Reed Kelly

(Page 2)

As federal law enforcement has enjoyed virtually unlimited access to customer records over the last decade, it would seem unlikely that lawmakers would be willing to permit what Merrill proposes. But government agencies at the regional, local and federal levels stand to gain from Merrill’s innovation as well. “Privacy and cybersecurity are two sides of the same coin,” he explains, suggesting that he can keep officials’ data safer than it currently is. “I’m not at war with the FBI,” he says. “I’m for their mission. I want them to catch criminals. I just don’t want them to undercut the rule of law or undermine the Constitution.”

Merrill’s potential clientele extends even beyond government and those on whom it spies. Businesses, including big banks and defense contractors, have an interest in protecting trade secrets. Hospitals house sensitive patient records. Lawyers need to ensure client-attorney confidentiality. Journalists want to guarantee they can protect the identities of anonymous sources. And celebrities would like to feel safe from the compulsive prying of some tabloids.

In addition to these realities, there is evidence of widespread and growing concern about identity theft and privacy on social media sites. Merrill says these trends suggest there are aspects of privacy that existing companies have ignored, and for which a new, profitable market could be made. If he can prove this is so with the success of his ISP, he believes he can pressure the industry’s giants to adopt the same practices. If he succeeds, he will have rewritten the industry’s standard practice using market forces trusted and cherished by capitalists, and will have left a stalled Congress and the courts in his dust.

Merrill already has a broad base of support from people in business and government. So far, he has assembled a board of advisers that boasts an Apple executive, a retired National Security Agency analyst and a Republican congressman, as well as civil rights lawyers, digital security experts and privacy activists.

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Before he can make his ISP a reality though, Merrill has to raise more than $1 million. This is a major hurdle, in personal and legal respects. Out of concern that a prevailing interest in profits drove the major telecom companies to go along with the Bush and now the Obama spying program, Merrill wants to incorporate his business as a nonprofit.

“From my point of view, keeping it as a nonprofit would help eliminate financial incentives to screw over customers,” Merrill says. But the Internal Revenue service won’t grant an Internet service provider nonprofit status. So Merrill is being forced to tangle with the very market forces he fears.

To that end, he has been advised to seek help from the technology-minded venture capitalist community of Northern California. And there lies a personal problem. Today’s venture capitalists are almost all economic libertarians—people who think government should leave them and their money alone. Although Merrill’s privacy designs appeal directly to their desire for personal freedom, his humanitarian ambitions do not.

“They want to understand that it’s a business,” he says. An airtight business plan could get Merrill the startup money he needs, but it could also mean the loss of control over his company. And that’s something Merrill is not willing give up.

“I’m worried that I will one day hit a fork in the road and have to choose one path or the other,” he says between sips from his Jarritos soda, with his plate scraped clear. “That I’ll have to choose between what’s good for business and what’s the right thing to do. All these telecos and Internet service providers, they hit that and did what’s good for business. And that’s what I’m concerned about, that if you become a for-profit business and care more about money than principle, you’ll be co-opted. And I’m trying to stay true to my principles no matter what, because that’s the whole purpose of this.”


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