Who Shall Keep the Keys?
On what the trustless machine and the scarce file do to the institutions of trust — the state, the firm, the law, the commons — and why abolishing the middleman is not the same as abolishing power
Keywords: trust; intermediaries; disintermediation; transaction costs; code as law; lex cryptographica; smart contracts; monetary sovereignty; the commons; enclosure; decentralisation; the tyranny of structurelessness; the political economy of cryptography.
Abstract. Two technical achievements — the ability to coordinate honestly among distrustful parties with no trusted referee, and the ability to make digital goods genuinely scarce and to author the rules they obey — are not merely engineering curiosities. They strike at the foundation of how human societies have always organised themselves, because a very large part of every society is built precisely to serve as the trusted third party: the state that keeps the register and enforces the contract, the bank that keeps the ledger of money, the court, the notary, the clearing house, the platform. These institutions exist because trust is scarce and dear, and they are the apparatus a civilisation builds to economise on it. To engineer trust and scarcity directly is therefore to touch the load-bearing walls of the social order, and this essay engages, at length and without either fear or rapture, with what follows. I argue that the consequences for law are a shift from the command enforced after the fact to the rule enforced in advance, with the loss of the slack — equity, mercy, fair use, the contestable gap between rule and enforcement — in which much of human liberty has always lived; that the consequences for the economy are a redrawing of the boundary of the firm and a redistribution of the rents long extracted for the provision of trust; that the consequences for money strike at the deepest monopoly of the modern state; and that the consequences for property reopen, as a deliberate political choice rather than a technical accident, the ancient question of what may be enclosed and what must remain common. Above all I argue that the abolition of the trusted third party does not abolish power but relocates it — to those who write the code, hold the keys, make the hardware, and run the infrastructure — and that the central task of a serious society is to make that relocated power visible, accountable, and chosen, lest the banishment of the trusted intermediary become the unexamined enthronement of an unaccountable one.
I. The intermediary as the load-bearing wall
It is a curious fact, rarely stated because it is so pervasive as to be invisible, that the greater part of what we call civilisation is an elaborate apparatus for getting around the problem of trust. We do not keep our money under the floor because we have learned, at great expense, to entrust it to a bank, whose ledger we believe. We do not enforce our bargains with our fists because we have built courts, whose judgments we accept. We do not verify the title to every house we buy by personal investigation back to the first settler because the state maintains a register, whose record we rely upon. The notary, the auditor, the clearing house, the escrow agent, the credit bureau, the platform that holds the buyer’s money until the seller ships — each is a station in a vast machinery whose single purpose is to stand between strangers and allow them to deal as though they trusted one another, when in fact they do not, and are right not to.
That this machinery is necessary, and not a mere accretion of rent-seekers, was the burden of a line of inquiry that runs through the most serious economics of the last century. The young theorist who asked why firms exist at all — why the economy is not simply a market of individuals contracting moment to moment — answered that the firm arises to economise on the costs of using the market: the costs of searching, of bargaining, of writing and enforcing contracts, which is to say, in large part, the costs of arranging trust where none is given [1]. The institutional economists who followed showed that the rules, customs, and organisations of a society are precisely the devices by which it reduces uncertainty and makes the behaviour of strangers predictable enough to act upon [2]. And the student of social capital demonstrated, across nations and centuries, that prosperity itself tracks the supply of trust — that the unspoken bond which lets citizens cooperate without a contract for every act is as much a form of capital as any factory, and that societies poor in it pay for the poverty in every transaction they attempt [3]. The lesson of all this is unsentimental and exact: trust is a scarce and precious resource, the institutions of society are the apparatus built to economise on it, and a very great deal of what we pay, in fees and taxes and deference, is the price of that apparatus. It follows that any technology which can manufacture trust directly, or render it unnecessary, is not a technology of convenience. It is a technology that touches the foundation, and one should approach it with the seriousness one reserves for things that can hold a building up or bring it down.
II. Law: from the command enforced after to the rule enforced in advance
The first wall it touches is the law, and here the change is subtle enough to be missed and deep enough to be alarming. Law, as we have known it, is a command enforced after the fact. The rule is stated; a man may obey it or break it; and if he breaks it, the apparatus of enforcement — the suit, the judgment, the sheriff — may, eventually and imperfectly, be brought to bear. Between the rule and its enforcement there is always a gap, and into that gap a great deal of what we value has quietly taken up residence. There is discretion, by which a judge may temper a rule that would work injustice in a particular case. There is equity, the law’s own confession that strict rules sometimes require merciful exceptions. There is the doctrine of efficient breach, by which a man may break a contract and pay damages when keeping it would waste more than it preserves. There is fair use, by which the rigid claims of the owner yield to the wider interest of the public. And there is, above all, the simple fact that enforcement is costly and uncertain, so that the law on the books is always softer in practice than in print — a slack that is not a flaw but a mercy, the give in the rope that keeps it from cutting.
The technologies under discussion permit, for the first time, a rule that enforces itself in advance. The agreement is not merely written; it is constructed, so that its terms execute automatically and breach becomes not punishable but impossible. This possibility was named before it was built — the self-enforcing contract, in which the protocol itself guarantees performance and the recourse to courts becomes unnecessary [7] — and it has since been theorised at length, both as a new species of law administered through code, and as a thing that sits uneasily beside the law of contract it resembles [8, 9]. The legal scholars who first saw that architecture regulates conduct as surely as statute called the phenomenon by various names — the rules set by the design of the system, a lex informatica analogous to the old merchant law, a lex cryptographica administered by self-executing code [5, 6, 9] — and they were careful, the best of them, to count the cost as well as the power. For the power is real: a rule that cannot be broken needs no police, no suit, no trust in the counterparty’s character or the court’s competence, and for a vast range of dealings this is an unambiguous good, the abolition of a whole apparatus of expensive distrust. But the cost is real too, and it is precisely the loss of the slack. A law that enforces itself has dispensed with the judge, and in dispensing with the judge it has dispensed with mercy, with the particular exception, with the second look. It admits no equity, for it cannot be persuaded; no efficient breach, for it cannot be broken; no fair use, for it grants only what it was built to grant; no appeal, for there is no one to appeal to. Perfect enforcement is efficient in the way a guillotine is efficient, and a society that embeds its rules in mechanisms which cannot be argued with should understand that it is trading the messy, corruptible, merciful administration of human law for something cleaner, harder, and entirely without pity. Whether that is progress depends on whether one believes the slack in the old system was waste or wisdom; and the honest answer is that it was both, in proportions that varied with the rule, and that to lose it wholesale is to lose the bad and the good together.
There is a further cost, subtler than the loss of mercy and perhaps more dangerous, and the most careful students of the rule of code have pressed it hardest: that a rule which executes itself is only as wise as the foresight of the one who wrote it, and no one’s foresight is equal to the world. Human law is vague, and its vagueness has been mocked as a defect by every engineer who ever wished a statute would compile; but the vagueness is also how the law breathes — how it stretches to cover the case its drafters never imagined, how a judge reads a rule written for carriages and applies it justly to motor-cars. A self-executing rule has no such give. It does precisely what it was told, in situations its authors never contemplated, with an obedience that becomes ruinous the instant reality diverges from the specification — and reality always diverges from the specification. Worse, such a rule must somehow learn what has happened in the world it governs, and it can know only what it is told by whatever feeds it information; so the trusted third party, expelled with ceremony from the front of the contract, creeps back in at the rear as the party who tells the contract what is true, and the problem of trust returns wearing the mask of a data feed. The very autonomy that makes the mechanism reliable is the thing that makes it brittle and, once set in motion, perilously difficult to correct [9]. A society that places its rules beyond the reach of revision had better be certain it has foreseen everything; and the one lesson history teaches without a single exception is that no one ever has.
III. The firm and the rent
The second wall is the economy, and the change here is a redrawing of a boundary and a redistribution of a rent. If the firm exists to economise on the costs of trusting and contracting through the market [1], then a technology that slashes those costs must move the boundary of the firm — must make it sensible to coordinate through open protocols what previously required the walls of an organisation to make trustworthy. More pointedly, a great many businesses are not producers of anything but trust: they take a fee for standing in the middle, for being the party that both sides can rely upon, for keeping the ledger or holding the stake or vouching for the record. The escrow agent, the clearing house, much of the apparatus of finance, the registrar, the platform that exists chiefly to be trusted by buyers and sellers who do not trust each other — these extract a toll for the provision of a scarce good, and the good they provide is precisely the good these technologies manufacture directly. To the extent that the manufacture succeeds, the toll becomes payable to no one, and the rent that was extracted for trust is redistributed — returned, in the first instance, to the parties who no longer pay it.
One should not be naïve about where it goes from there, for rent is rarely abolished; it is more often relocated, and the sober question is always to whom. The trust formerly vested in the bank and the clearing house does not evaporate; it is transferred to the protocol that replaces them, and thence to those who write that protocol, who govern its changes, who hold the keys to its treasury, who run the infrastructure on which it depends, and who make the hardware that secures it. The middleman in the grey suit is dismissed, and a new middleman — in a hooded sweatshirt, or wearing no human face at all — takes up a position that is no less central for being less visible. This is not an argument against the change; the redistribution of rent away from incumbents who extracted it by sitting in a chokepoint is, on the whole, a healthy thing, and the discipline it imposes on the lazy intermediary is overdue. It is an argument for clarity about the nature of the change, which is not the abolition of the toll-collector but the relocation of the tollgate, and for vigilance about the new gate, which has a way of being defended as fiercely as the old once it is built. The economy that emerges is not one without intermediaries. It is one in which the intermediary has changed costume, and the public must learn to recognise him in his new dress before it can hold him to account.
IV. Money and the state’s jealous monopoly
The third wall is the deepest, for it is the wall around money, and money is the prerogative a state guards more jealously than almost any other. To issue the currency, to set its quantity, to take the seigniorage, to wield monetary policy as an instrument of statecraft, to see and when necessary to stop the payments of its subjects — these are not peripheral powers but central ones, among the truest marks of sovereignty, and a state that loses them is a different kind of state. It was therefore inevitable that the achievement of trustless money — a medium of exchange whose scarcity and whose transfers require no central mint and no trusted bank, secured by a public record that no sovereign administers [10] — would be felt as a political event and not merely a financial one.
The aspiration was old. A great liberal economist had argued, decades before the means existed, that the state’s monopoly on money was neither necessary nor benign, and that competing private currencies, disciplined by the market’s preference for stability, would serve the public better than the managed and frequently debased money of governments [11]. A circle of cryptographers and libertarians had made the matter a creed, holding that privacy and a money beyond the reach of the state were the preconditions of liberty in an electronic age, and proclaiming as much in manifestos that have the brevity and heat of revolutionary documents [12, 13]. And the same documents, to their credit, did not flinch from the danger: their author foresaw that a technology placing money and communication beyond the state’s view would be used by the criminal as well as the dissident, that national secrets and illicit goods would flow through the same channels that protected the persecuted, and that many of the state’s alarms would be valid [12]. This is the matter stated honestly, and it deserves to be held in both hands at once. A state that cannot see or stop a payment cannot debase your savings by stealth, cannot freeze the accounts of the journalist or the dissident, cannot impose capital controls that imprison a people’s wealth within a failing regime, cannot turn the payment system into an instrument of surveillance and punishment — and this is a great and genuine expansion of liberty against the tyrannies, soft and hard, that have always found the control of money their most convenient lever. But the same state, deprived of these powers, is also deprived of the legitimate instruments by which a lawful and democratic society acts: the monetary policy that cushions a depression, the sanction that pressures a war criminal, the taxation that funds the common defence and the relief of the poor, the tracing of the proceeds of genuine crime. To celebrate only the liberation is the error of the zealot; to lament only the loss is the error of the courtier. The truth is that the same instrument disarms the tyrant and the democrat alike, and a serious society must decide, deliberately and with open eyes, how much of the state’s monetary power it wishes to place beyond the state’s reach — knowing that the placing, once done, is not easily undone, and that the same wall which keeps the despot out keeps the lawful sovereign out as well.
V. Property and the commons: enclosure or abundance?
The fourth wall is property, and here the achievement of true digital scarcity reopens a question that mankind has been arguing since the first hedge was planted across the first common field. We have seen that property rights tend to emerge when a change in technology makes it economical to define and enforce them — that ownership is not a fixed feature of the world but a response to what the times make worth holding and possible to hold [4]. The technology of digital scarcity has now made it possible to hold the intangible, and so, by the old logic, the intangible will be enclosed: the song, the text, the image, the dataset, the model, the credential, fenced and titled and made the property of someone. The maker who could never before be paid for what he made, because his work escaped his keeping the instant it was copied, may now be paid; and this is a justice long denied, the restoration to the creator of a stake in his own creation.
But enclosure is never only a gift, and the wiser students of the commons have always insisted on the other half of the ledger. The famous parable of the commons held that a resource open to all is overused and ruined, and that the cure is to privatise or to regulate [14]; but a Nobel laureate spent a career demonstrating that this was too quick, that real communities have governed real commons sustainably for centuries without either the state or the fence, by rules of their own devising [15] — that the commons need not be a tragedy, and that to enclose it reflexively is to destroy a form of wealth in the name of protecting it. And a legal scholar gave the matter its sharpest contemporary form, describing a second enclosure movement in which the expanding fences of intellectual property close off the intangible commons of the mind as the first enclosures once closed off the common land, with the public domain — the shared inheritance of knowledge and culture from which all new making draws — as the casualty [16]. The bearing of this on the present achievement is direct and uncomfortable. The same apparatus that lets a creator be paid lets a rentier lock a door; the same scarcity that restores the artist’s stake can foreclose the reader’s ownership of his own book, the scholar’s fair quotation, the public’s eventual inheritance of the culture it helped to make. And because, as we have seen, the rules can now be embedded in the architecture of the thing itself, the foreclosure need not be enacted by any legislature or reviewed by any court; it can simply be built, so that the device you own obeys someone other than you, and the work you bought permits only what its maker’s code allows [5]. The decisive shift is this: scarcity, which was once an accident of matter that the digital age had abolished, has become a decision — and a decision, unlike an accident, has an author, and may be made well or badly, generously or graspingly, and must therefore be argued about. The question of what may be enclosed and what must remain common, which the free copy had rendered moot by making enclosure impossible, returns as a live and unavoidable political question, and the worst error a society could make would be to let it be settled silently, good by good, by whoever happens to control the architecture, while the public imagines that nothing of consequence is being decided.
It is worth pausing on the sheer strangeness of what is being attempted, for it runs against the grain of the thing itself. Information, considered apart from any vessel that carries it, is the least scarce thing in the world; it is the one good that may be given without being lost, shared without being diminished, possessed by all without being possessed less by any. The point was made with unsurpassed grace two centuries ago by a statesman who observed that he who receives an idea from another receives instruction without lessening the giver’s, as he who lights his taper at another’s flame receives light without darkening it [18]. To impose scarcity upon such a thing is therefore not to discover its nature but to reverse it — to build, at real expense, a fence around that which has no natural edge. The economist’s bloodless way of putting the matter is that the marginal cost of an additional copy is zero, so that the price which would best serve the use of the thing is also zero, and every toll levied above that price turns away some willing user from a good it would have cost nothing to give him — a real loss, borne by the public, in the name of a real gain, the reward of the maker. That trade is sometimes worth making and sometimes not: the dynamic benefit of paying the creator may outweigh the static loss of the fence, or it may fail to. The point is neither that enclosure is always wrong nor that it is always right, but that it has become a choice with costs on both sides of the ledger, to be reckoned good by good — and that a civilisation which encloses reflexively, merely because it has at last acquired the power to, will have forgotten that the abundance it is so busy fencing was the nearest thing to a free gift the material world has ever offered it.
VI. Politics: the new sovereigns
The fifth wall is the most paradoxical, for it concerns power itself, and the paradox is that a set of technologies sold under the banner of abolishing rulers turns out, on inspection, to relocate rulership rather than to end it. The dream is intoxicating and not wholly false: a world governed by protocols rather than potentates, in which the rules are public and the same for all, in which one need not trust any sovereign because the system itself guarantees fair dealing, in which exit replaces voice and a man dissatisfied with the rules may simply take his business to a system he prefers. There is real liberty in this, and real discipline imposed on the arbitrary power of the old intermediaries, and it would be churlish to deny it.
But there is an essay, written long ago by a veteran of a movement that had tried to abolish leadership in the name of equality, whose lesson the enthusiasts of the trustless machine would do well to learn by heart. It observed that the attempt to have a structureless group does not in fact eliminate power; it merely renders power informal, unaccountable, and invisible — that the absence of formal structure is a smokescreen behind which the strong or the lucky establish an unquestioned hegemony, because abolishing formal structures does nothing to prevent the formation of informal ones, and the informal ones answer to no rule and may be called to no account [17]. The application to the present case is exact and sobering. A system without an official sovereign is not a system without sovereigns; it is a system whose sovereigns are hidden. Power flows, as water does, to wherever the structure permits it to pool: to those who write and control the code, who are the new legislators, and who have taken office without an election; to those who hold the largest stakes, whose votes in the system’s governance are weighted by their wealth; to those who run the infrastructure on which the protocol depends; and to those who make the hardware and issue the attestations that decide which code is to be trusted at all. “Trustless” is a word that describes the absence of a designated party to be trusted; it does not describe the absence of trust, which has merely been redistributed to the makers of the chips, the authors of the code, and the holders of the keys, and which is, if anything, harder to withdraw from them than from a bank, because they are less visible and answer to no charter. The political task that this creates is not to celebrate the disappearance of power, which has not disappeared, but to locate the power that has gone underground, to drag it into the light, and to bind it with the ordinary instruments of accountability — transparency, contestability, the possibility of exit and the possibility of voice — that we apply, when we are wise, to every other concentration of power. The abolition of the visible sovereign is an achievement only if it is not also the enthronement of an invisible one.
VII. The double-edged blade
It will be apparent by now that the argument of this essay refuses the two easy postures, and refuses them on principle. There is a posture of refusal, which regards these technologies as a threat to be resisted, and it is wrong, because the technologies are real, largely beneficial, and in any case not going away; one does not legislate arithmetic out of existence. And there is a posture of rapture, which regards them as an automatic engine of liberation, and it is wrong, because they are not neutral and not automatically benign, and the same primitive serves freedom or domination according to the hand that wields it and the purpose to which it is bent.
The point deserves to be made concretely, for the abstraction conceals its force. The hardware that can prove what code it is running can guarantee that an election is counted honestly, or that a machine handling your medical data does only what it claims — and the same hardware can guarantee that the device you own runs only the software its manufacturer permits, refuses the program its maker dislikes, and obeys, in the last resort, someone other than you. The construction that lets a creator be paid on every resale can also imprison the culture of a people behind perpetual tolls that no public domain will ever release. The money that resists the tyrant resists the tax collector too. The contract that cannot be broken cannot be mercifully excused. In every case the blade has two edges, and the edge that faces you depends not on the steel but on the grip; and the grip is a matter of politics, of law, of the choices a society makes about how these instruments shall be governed and to what ends they shall be turned. The reason this is urgent, rather than merely interesting, is the very thing the legal scholars warned of: that when a rule is embedded in architecture, it is far harder to revisit than a rule embedded in law [5]. A statute may be repealed by a legislature, struck down by a court, ignored by a jury, softened by a prosecutor’s discretion; the architecture simply does what it does, silently and to everyone, and changing it requires a power and a coordination that the ordinary citizen does not possess. The choices we embed in these systems are therefore stickier than the choices we write in our laws, and they are being made now, in code, by parties who did not stand for election and need not consult the governed — which is precisely why the governed must insist, while the matter is still open, that the choices be made in the light and subject to revision, rather than poured into a foundation that no later generation can recut.
VIII. What a mature society does with this
What, then, should a society that takes these powers seriously actually do? Not refuse them, and not worship them, but govern them — and the governing has a shape that follows directly from everything said above. It must, first, insist that the great choices these technologies make possible — what shall be made trustless, what shall be made scarce, what shall be enclosed and what kept common, which of the state’s powers shall be placed beyond its reach — are recognised for what they are, which is political and moral choices of the first importance, and not technical defaults to be settled by whoever ships the code. A society that allows its constitution to be rewritten in software while it imagines that only software is being written has abdicated, and deserves the masters it will get.
It must, second, preserve deliberately the things the old systems preserved by accident — the slack, the mercy, the commons, the public domain, the breathing room around property and around rules — because the new systems will not preserve them unless they are built to, and the burden of preservation has shifted from the indifferent medium to the deliberate designer and the watchful public. Fair use, the right to resell and to lend and to inherit, the eventual passage of culture into the common inheritance, the equitable exception to the rigid rule: these were the gifts of a world too loosely made to enforce its own claims perfectly, and a world that can now enforce them perfectly must choose to leave the gaps that liberty requires, for they will not appear of themselves. It must, third, find the new sovereigns and bind them — must treat the authors of consequential code, the holders of decisive keys, the makers of the hardware that secures the whole edifice, as the wielders of public power that they have become, and subject them to the transparency, the accountability, and the contestability that we owe ourselves wherever power concentrates, rather than permitting the word “decentralised” to serve as the smokescreen behind which a new and unaccountable elite establishes its hegemony.
And it must, above all, refuse the seductive equation of the trustless with the trustworthy, and of the disintermediated with the free. To remove the designated party one had to trust is a genuine and often admirable achievement; it is the burden of the two essays that precede this one that it can be done, honestly and beautifully, in the dealing of cards and the holding of property alike. But to remove the designated trustee is not to remove the need for trust, nor the fact of power, nor the question of who shall answer to whom. It is to redistribute these things into new forms, some better and some worse than the old, and to lay upon the present generation the harder of the two great tasks. The first task, the engineering, is nearly done: we know how to deal with no dealer and own with no copy, how to coordinate without a referee and make the digital scarce. The second task, the judgment, has barely begun: to decide, deliberately and in the open, what to make trustless and what to leave in trusted hands, what to enclose and what to keep common, whom to empower and how to keep them answerable. The machines will not perform this second task for us. They have, if anything, made it more urgent, by placing in our hands a power to settle these questions in steel and silicon, where they are harder to revisit than anywhere a society has ever before been able to settle them.
IX. Coda: the harder of the two tasks
There is a kind of mind that supposes a problem solved once the mechanism is built, and it is the same kind of mind that supposes a country governed once the constitution is printed. Both confuse the instrument with the use, the structure with the life lived inside it. The achievements that these essays have celebrated — the honest game without a dealer, the scarce file that one can truly own and give, the coordination of strangers without a sovereign between them — are instruments of extraordinary power and no small beauty, and the reasoning mind that built them has earned the admiration one owes to any difficult thing done well. But the building was the easier task, and the easier task is finished. The harder task is the one that no protocol can discharge and no enclave can secure: the judgment of what these powers are for, and the discipline of keeping them answerable to the people who must live among them.
For the deepest truth about all of this is that power, like matter, is conserved. It is not created by these technologies and it is not destroyed by them; it is only moved, from the visible to the hidden, from the trusted to the merely powerful, from the chair we knew how to watch to the foundation we have not yet learned to inspect. A society that understands this will reap the genuine liberty these instruments offer — the liberty of the man no longer at the mercy of a corrupt registrar, a debasing treasury, a censoring intermediary, a dealer who cheats — without paying for it in the deeper bondage of a world whose rules are written by no one it elected and enforced by mechanisms it cannot petition. A society that does not understand it will congratulate itself on having abolished its masters at the very moment it is fitting new ones, more efficient and less accountable than any it has known. The keys have been forged; that much is settled, and it cannot be unforged. The only question left — and it is a question of judgment, of law, of politics, of the kind of seriousness a free people owes itself — is the oldest question that power has ever posed, and the one this entire revolution has done nothing to answer and everything to sharpen: who shall keep them?
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