Computers, Privacy & the Constitution

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MichelleJongFirstPaper 3 - 06 May 2022 - Main.MichelleJong
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
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The Tech Leviathan
 
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The Tech Leviathan

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“The attaining to … sovereign power is by two ways. One, by natural force…The other, is when men agree amongst themselves to submit to some man, or assembly of men, voluntarily, on confidence to be protected by him against all others.”
 
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-- By MichelleJong - 11 Mar 2022
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For Hobbes, society is artificial, not natural. Humans constructed government systems to enforce our natural right of self preservation; by joining a covenant, we authorized a Sovereign: state governments and national governments. For Hobbes, the covenant is what justifies an absolute government, deserving of a citizen’s faith and trust. With the turn of the twenty-first century, the balance of power between sovereign, corporations and the individual has become murky. Governments surveil citizens, as do private tech companies, gathering enough information, unbeknownst to individuals (in the nature of surveillance), and economic power to even challenge incumbent political power. This recent advent of surveillance capitalism has therefore given individuals ample incentive to take matters into our own hands. But, we also need legal reform.
 
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Firstly, artificial intelligence has changed the game for surveillance. Previously we had NSA wire-tapping programs, accessing private calls between citizens and foreigners; now, we have Pegasus, spyware that extracts the contents of your phone, accessing photographs and texts, and capable of activating your phone camera or microphone to enable real time surveillance. It is a system used in forty five countries, by governments, authoritarian as well as democratic governments. A study from the University of London found that Pegasus has been linked to three hundred acts of physical violence. These invasions of privacy have become invasive, pervasive, and discrete, difficult to track and even more difficult to hold accountable. Despite what Hobbes might have thought, society has not made people consistently trustworthy, even (and especially) appointed sovereigns. This software has even enabled election interference and despotic consolidation of power.
 
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“The attaining to … sovereign power is by two ways. One, by natural force: as when a man maketh his children to submit themselves, and their children, to his government, as being able to destroy them if they refuse; or by war subdueth his enemies to his will, giving them their lives on that condition. The other, is when men agree amongst themselves to submit to some man, or assembly of men, voluntarily, on confidence to be protected by him against all others.”
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Shouldn’t the law be protecting us? The only constitutional protection of privacy, the Fourth Amendment protects the right of the people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” by requiring the issuance of a warrant supported by probable cause. But judges (including the very non-public FISA Court) can issue a warrant on an ISP authorizing a search and seizure requiring them to hand over documents for a “search and seizure” without the subject becoming aware of it. Recently, the FBI had obtained a federal warrant allowing them to search and seize (to delete copies of) malicious software that had been secretly installed in privately owned servers used to manage emails using Microsoft Exchange and the FBI removed the malware before attempting to notify the servers’ owners after the fact. However, the Supreme Court has recognized that advances in technology can increase the potential for unreasonable intrusions into personal privacy. These concerns extend to sense-enhancing thermal imaging (Kyllo v. United States, 533 U.S. at 34, 121 S.Ct. 2038).
 
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Big tech attains power through information. Now is there a part of our individual humanities that are not subject to invasion?
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Meanwhile, surveillance capitalism has enabled private companies to similarly edge their way into our private lives. Journalist Maria Ressa notes that surveillance capitalism enmeshes four big issues: antitrust, data privacy, user safety and content moderation. Large tech companies invade our privacy, forsaking user safety for scale, and instead focusing on granular downstream protections like content moderation. Facebook has built an algorithm that matches individuals to content, which has exacerbated societal evils, hosting content that enables body image issues, coordinates terrorism, triggering our “paleolitic emotions” (dubbed by E. O. Wilson), our paranoia, hatred, and anger. Platforms weaponize “smart nudging” and use cognitive technologies to affect behavior, where matching algorithms devise our collective fashion sense, influences our political opinions, and our awareness of current events. The behavior-modification system is like a feral disease, infecting each and every platform. It was also the logical next step for the social media industry based on their business model, pursuing growth unencumbered by the need for short term growth. Amassing and aggregating data gave platforms a profit model, based on targeted advertising, without having to directly charge users for their service. It is also the source of this problem.
 
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The Fourth Amendment protects the right of the people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” by requiring the issuance of a warrant supported by probably cause. As of now, judges (including the very non-public FISA Court) can issue a warrant on an ISP authorizing a search and seizure requiring them to hand over documents for a “search and seizure” without the subject becoming aware of it. Meanwhile, with the rise of “surveillance capitalism”, where big tech companies extract growing swaths of information on individual users, the pool of comprehensive records that can be accessed for search and seizures has grown immensely. Tech companies, like Apple, now collect our biometric information, the most intimate, individually-identifying pieces of information. Facebook knows all about our inner and outer circles to the point of cognizing our political stances, our emotional vulnerabilities, prime for manipulation.
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So, on the one hand governments watch us and tech companies both watch and manipulate us. Great. With the confluence of big tech’s rise and permeation into every vestige of our lives and a growing cooperation between big tech and government authorities (whether police force or national security), we seem to be unknowingly submitting to an all too unexpected beast.
 
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With the confluence of big tech’s rise and permeation into every vestige of our lives and this growing cooperation between big tech and government authorities (whether police force or national security), do we have a new governing power that we are unknowingly submitting to? A second government with more control and less accountability than the ones appointed from the ballot box. And is there a way out?
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So what can we do for ourselves? Freedom comes from exercising agency over our future. In some ways, we carry agency. We have the individual power to resist the tech leviathan. We might have to be more intentional about our behavior and online presence or change the software that we use. We can restrict our engagement online by reducing the content that we voluntarily put on the web and remain mindful of the software that we are downloading to avoid those that carry backdoors into our private content, which is absolutely illicit but also undetectable.
 
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We started this journey by ticking off a “terms and conditions” box but that small act of ours was the act of consent that emboldened technology companies with a peephole into our psyche, expanding it incrementally with every update, and a way for governments to access insights into our lives that we ourselves have yet to discover. As individuals, we don’t necessarily contemplate the possibility that this email or that Facebook message might one day be the subject of public inquiry (justified for example through the lens of state security) or even worse, weaponized against us through technological warfare.
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Ideally, we would also see significant legal changes, like the recognition of a federal right to privacy that is not just limited to instances of evidence-gathering or to discrete areas like medicine or finances and finding ways to restrict surveillance technologies to uses that serve the crime control purposes. Laws that govern large technology companies, like the Sherman Act, were formulated at a time before artificial intelligence. With regards to under-the-cover spyware like Pegasus, general security practices like updating your software and using two-factor authentication can help stave off mainstream hackers, but protection is really hard when teams of well-funded expert hackers concentrate their resources on an individual, especially when Pegasus can be installed remotely without any required action by the target (like opening an email or click a website link). Individuals in especially vulnerable positions, like journalists or politicians, should then familiarize their understanding of how to wipe their harddrive and know when to dispose of a compromised phone.
 
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However, despite the rise of government-tech cooperation, one might ask who has the real power? Francis Bacon coined the truism knowledge is power. In our modern age, data is the prevailing permutation of knowledge relating to the individual obtained through technological devices. So in some sense, big tech has usurped governmental authority by expanding the artificial realm and closing in on reality, crowding out our autonomy and creating an opportunity for a surveillance culture granting access to more intimate information. So now, the half of the government-tech dyad that we, as civilians, scrutinize more regularly and have the chance every four years to vote out, is not even the more powerful half.

So why haven’t we done anything to resist this growing power? The guise that privacy can even truly exist is gradually dwindling and yet as consumers, we remain complacent to protecting ourselves from these invasions. Perhaps the opportunity cost (as social beings) of disengaging is far too high. But let’s be honest, aside from the brief flashing thought, none of us really make a risk-benefit analysis of losing our privacy vs. engaging in society. If anything, we’ll never be able to make an informed decision because the whole point of surveillance is that the act itself remains secret. We will never have enough information to know exactly what we are giving up. That is the most insidious part of this whole thing, that we won’t know what we’ve lost until we’ve lost it.

So then perhaps instead the answer is that the consequences we’ve seen so far haven’t been dire enough. To avoid having to contend with the cognitive dissonance (long term loss of privacy vs. short term social engagement/validation), we compartmentalize these thoughts and store it away, thinking only of the fact that Instagram or TikTok? provides enough entertainment in our day-to-day lives that it warrants a download.

Even though the text came in at 730 words, including more than 80 of quotation from Thomas Hobbes, it is wordy. So I would start with a strong edit. Every word that is not pulling weight must go. When all the slack words are gone, every sentence should be rewritten to use fewer words and simpler grammar. When that contraction has occurred, you can fit them into the outline you didn't make for the first draft. At this stage you will see clearly why the draft was loose: the central idea was missing.

This draft got lost in recapitulating what we discussed in the first weeks, during Part Four. You central idea arrived only late, in abbreviated form. This turned out to be about the false dichotomy between "disengaging" and losing freedom. The platforms spying on everyone by providing trivial services in return for collection of behavior can be defeated by not using them. That doesn't require disengaging; it requires using technology differently. Some of this is nearly-transparent, some of it requires considering changes in behavior as well as adjustments to software. But once the subject is no longer put in "everything or nothing" terms, another future is possible, and with that knowledge freedom begins.


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With the knowledge that we have this power to seek out an alternative future, we can begin to exercise freedom and resist control.
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Revision 3r3 - 06 May 2022 - 20:54:06 - MichelleJong
Revision 2r2 - 02 Apr 2022 - 19:43:01 - EbenMoglen
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