From: Sophie Guite <seg79@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Fri, 11 Mar 2005 18:22:39 -0500

Re: First Paper

My paper is attached (w/actual footnotes!) for Prof. Moglen and in
body of email for other interested parties.

love,
sophie

Sophie Guite									March 9, 2005
Computers, Privacy and the Constitution					  Eben Moglen

Techno-Logic and The Digital Me
	There is no doubt that, by all accounts, large data warehouses like
ChoicePoint and Lexis-Nexis have an unsettling amount of data about
us.  That we don’t know what our information will be used for in
the future or what it is being used for now, that we have no
control over its contents or whereabouts, and that we can’t get it
back, are all reasons why we should be concerned about what goes on
just under the surface of American politics in a post-9/11 national
security-obsessed society.  With the recent disclosure by
ChoicePoint of a massive security breach (that left thousands of
Americans’ Social Security numbers flapping in the wind), many
people are learning for the first time the scope and pervasiveness
of what has become a veritable data-mining empire.
Some people, like Robert O’Harrow, author of No Place to Hide, are
asking “how did it get to this point?” but more often, the erosion
of privacy is dismissed as a cost of doing business in a highly
mobile society where the logic of the trust-based charge account at
the local general store has been replaced with its technological
counterpart: the Wal-Mart credit card.  Some even go so far as to
say that perhaps you even benefit from the resulting targeted
marketing that occurs when, unbeknownst to you, Amazon.com or
Google G-mail has you in its (friendly!) crosshairs.  Indeed, there
is a hint of technological determinism that encourages us to make
such a leap of rational faith as to believe that it is consistent
with the spirit of our Constitution for large companies that have,
on numerous occasions, demonstrated their lack of interest in
accountability and accuracy, to aggregate, analyze, package and
sell our personal information and indeed, our identities.
Technological determinism could be described as a type of ideology.
In other words, it is a particular frame through which people think
about things, and understand the structures of power and
opportunity that affect outcomes.  In the words of Jack Balkin,
ideology is “cultural software” by virtue of its malleability and
function as a “toolmaking tool”1.  The Enlightenment-era ideology
of human progress and positivist thought has been extended to a
sort of modern-day technology worship, in which we see
technological “progress” as both inevitable and intrinsically good.
 This logical fallacy, based a fundamental misunderstanding of our
relationship with technology as users rather than creators, has
facilitated the emergence of a data-mining industry whose power and
momentum becomes harder by the day to check.  Christopher May says
that we view the “the information society [as] a wave which we can
surf but cannot change,” and that we overlook the important fact
that technology is created in specific social circumstances.
By failing to understand that there is nothing essential about one
technological innovation over another, and by assuming that
technology is a quick and effective fix for any problem, we allow
fundamental rights that we considered to be previously inanlienable
to be undermined for minor conveniences.  Indeed, far from being
inevitable, Robert O’Harrow’s book sites countless examples of the
political deals made behind close door that make these technologies
possible.  There is a reason why we find it just so (techno)
logical, and a greater understanding of the social, cultural, and
political roots of technology is needed if we are to reassert
control and understand that we are not merely passive objects
reacting to technological innovation.
We look to technology to recreate the system of commerce with which
we are familiar, and for all the talk of a digital revolution and
the unprecedented emergence of the information-only economy, the
new system we have come up with looks suspiciously like the old.
While eBay appears to function outside the space demarcated by
traditional notions of commercial order and control based on
centralization and distribution, it relies on the same systems of
trust and recommendation as traditional forms of social
organization.  The manipulation of data by programs such as NORA
(Non-Obvious Relationship Awareness) seeks to perform the same
function as the General Store owner who might recognize suspicious
behavior and alert the authorities.  There is a difference though,
between what the General Store owner and ChoicePoint can do with
your data.  For one thing, ChoicePoint’s systems lack human
reasoning and contextual awareness, and because of its size can
afford a certain degree of statistical inaccuracy.   If ninety-nine
times out of a hundred, or even one time out of a thousand, they can
pre-empt a criminal offense, that can be seen as justification for
the other 999 times they detect a pattern where none exists.
Despite the fact that 7 million Americans had their identities
stolen in 2003, and that there is not sufficient legal recourse for
those who have competition for their Digital Me, ChoicePoint is
asking us to trust them.   Of course ChoicePoint would like to
self-regulate, who wouldn’t?  But history has shown us that once
the toothpaste is out of the tube, it’s virtually impossible to get
back in.  Before September 11, 2001, we allowed private industry to
collect information about us because they weren’t the government,
but “once data systems are created, their use almost invariably
evolves” and as soon as it became clear to them that they could
help identify and capture of terrorists, companies like Axciom and
ChoicePoint were so enthusiastic they gave our information to John
Ashcroft for free!
Certainly one can think up beneficial applications for data-mining
technology, and a lot of the time it works quite well to do on a
massive scale what a General Store did one hundred years ago.  In
many ways, it can do it better: the sheer size of Chase Manhattan
bank allows some people to get loans who might otherwise be denied,
since profit can still be made with an acceptable margin of error.
However, the General Store/Bank owner could take other (arguably
more important) things into account in assessing your
trustworthiness, and moreover has a highly developed system of
facial recognition with almost no margin of error.
Gordon Moore, a founder of Intel, made the observation, now known as
Moore’s Law, that the power of computer ships would double every
year.   This is taken to be gospel by the ‘techno-fundamentalists’
who see the unstoppable progress of technology as a “Law” as
scientifically provable as any one of Newton’s.   And yet it is a
trade-off that we are making, that must be recognized it as such.
Are the slightly lower prices worth compromising our privacy, at
the very least?  Even without having to predict what future
Faustian bargains we might be inadvertently making with the Federal
Government, is the one in a hundred chance that our identities might
be hijacked by Wal-Mart worth the false sense of security that
another plane will not be?  If the tradition of American pragmatic
libertarianism has not been totally eclipsed by the idea that
authoritarian technology will “produce, almost as a by-product, the
liberation of the human spirit”  the answer will be no.
Moglen_TechDeterminism.doc
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