Computers, Privacy & the Constitution

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ColinSylvesterFirstPaper 3 - 13 May 2022 - Main.ColinSylvester
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-- ColinSylvester - 06 May 2022


The Enlightenment principles that inspired the drafters of the Constitution presume the existence of a social contract between citizens and their government. With this fundamental precept in mind, the charter the Founders drafted – while far from perfect – has served the United States well for over 200 years.

Modernity has revealed the limits of Enlightenment-era social contract theory. Sociopolitical and technological shifts in the late 20th and early 21st centuries have revealed structural weaknesses in the edifice – cracks that could materialize into irreparable fissures should we continue to neglect them. Nothing has been more harmful than the rise of the “parasite with the mind of God” – the metaphorical manifestation of sprawling, invasive, data-harvesting companies that monetize and profit off of human social behavior. This parasite has forever altered the interplay of law, technology, and politics, in part by blurring the distinction between governments and private actors. As a result, we increasingly live in a world where citizens have little to no recourse to speak, think, and express themselves without fear of unwanted surveillance or retribution, or simply to be left alone.

How can citizens insulate themselves from the parasite’s reach and mitigate its consequences? An ambitious solution would be to create a new “social contract” cognizant of the fact that the original contract’s terms have fundamentally changed. Such a proposal, while a step in the right direction, is too ambitious to succeed. A more pragmatic approach would be to equip citizens with the technical and theoretical knowledge to protect themselves. To cultivate the latter, I suggest a federal law requiring all 6th grade students to pass an exam demonstrating basic proficiency regarding privacy and data security. School curricula can then build on this baseline understanding with technical training to put knowledge into action, ultimately leading to a more robust, information-savvy public.

The Limits of Social Contract Theory

The roots of social contract theory are traceable to two influential Enlightenment treatises: Thomas Hobbes’ Leviathan and John Locke’s Two Treatises of Government. Each offers an explanation as to why humans establish political communities while positing different models for how best to structure government.

In Leviathan, Hobbes asserts people formed political communities to escape the “state of nature” – an existence of permanent war where every man both feared and threatened every other man. Security necessitated that each individual cede a portion of their individual sovereignty to a unitary, absolute sovereign. Hobbes’ preference for monarchism, however, was disfavored by the architects of the American constitutional system; John Locke’s contrasting vision of representative self-government provided a more appealing archetype. Locke writes in his Second Treatise that “[t]he power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws. . . the legislative can have no power to transfer their authority of making laws, and place it in other hands.” Given the “positive voluntary grant” of political sovereignty from the people, social contract theory permits citizens, in limited circumstances, to rebel against the political sovereign when it infringes upon their rights, and empowers them to forge a new social contract with a new sovereign in its stead.

How is this relevant to today’s world? As mentioned above, the terms of the social contract have changed; the parasite has grafted itself onto the original terms governing the relationship between the individual and the state, altering the behavior of the governors and the governed. Applying old regulatory regimes or enacting new legislation within the existing framework to reign in the parasite offers only the illusion of a solution.

A new social contract is needed to cure these ills, but such a solution is fated to fail for two reasons. The first obstacle is administrative – how can citizens in a collective political body “contract” with numerous private entities? What would the terms look like? How could they “revolt” and hold these entities accountable in instances of abuse? How should the contract account for the ephemerality of these entities? These questions have no clear answers.

The second reason is political: citizens cannot demand that which they do not want, or think they need. Some are indifferent to the pernicious effects big data companies have had on modern political life; others recognize the threat, but the scope of the challenge leads to disillusionment and an embrace of fatalism over action. Whatever the cause, the result – political inertia – is the same.

Breaking the Gridlock

In light of the aforementioned problems, I propose the enactment of a federal law requiring all public elementary schools to teach students about data privacy and security. The lessons would focus on basic, practical information: how social media companies operate and generate revenue, what happens every time students use Google to run a search, and the like. In 6th grade, all students will take a standardized test to measure their aptitude and prepare them for more technical training akin to the exercises we did in class.

This proposal will produce other positive externalities in addition to educating children. Policymakers, exam writers and teachers will all have to learn more about privacy and security before they can instruct children properly. In any event, the point of the plan is to inform children why they should care about these issues; students must understand the tradeoff they make between privacy and convenience. Equipped with this understanding, they can take actionable steps to protect their data in an increasingly digital world.

There are three subjects here. "The social contract" takes up about half the draft. "The parasite destroys the social contract and requires us to make a new one," and "Sixth graders should pass a data security exam," are the other two. There is a thread connecting these rather disparately-sized ideas, but it's to thin to create a unity among them.

I think "modernity has revealed the limits of Enlightenment thinking" can go. Unless the myth of the social contract is actually doing some work that I don't perceive, it can go too. That it is a myth, that neither now nor in any then could people actually have made a specific bargain to create government as proposed, even Rousseau would have granted outright. That this myth, and its surrounding framing of human history, is incompatible with our actual knowledge of long human history is the point of David Graeber and David Wengrow's The Dawn of Everything: A New History of Humanity (2021), which might interest you. The third topic, which might be the one that really concerns you, could perhaps be better written about not as a statute uncharacteristically declaring an element of national curriculum (which Congress doesn't do), or as yet another high-stakes exam, but as a real question: how can we make this subject interesting to tween-aged people, and what specifically would we like them to learn?


-- ColinSylvester - 13 May 2022

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