Law in the Internet Society

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AlexandraRosenSecondEssay 4 - 09 Jan 2016 - Main.EbenMoglen
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 In the following paper, I will discuss whether the existence and wide support lauding the Pledge as an effective mechanism for protecting student privacy on the Web creates a false sense that security within the status quo and in turn, slows real progress toward more effective privacy protections.

Why bother? That's always precisely the point of these self-regulatory exercises. We can take that for granted once we have seen who is sponsoring the show and who wants to be seen in the front row of the audience. Naturally there will also be non-profit do-gooder "intellectual" participation, accompanied by professional rhetoric and moderate fully-disclosed payment. Naturally the point of it all is a false sense of security.

Lawyers are realists, at least around here. So telling them that is like telling them that the sky is either blue or gray and the sun rises in the east every morning. The real questions are:

  1. Who is supposed to feel this sense of security, and what business models depend on their not feeling an insecurity instead?
  2. At whom is it aimed? That is to say, whose business are these people virtuously forswearing going into? As usual, it will help to assume that they are going to benefit as investors and partners from the businesses they virtuously aren't going to go into, so you can gain some insight into this situation by watching what they are doing with the other hand while they are waving the brightly-colored silk handkerchief you are presently paying too much attention to.
  3. What unintended consequences can this be made to have by foregoing attention paid to the brightly-colored silk handkerchief being waved and thinking instead about the tired old magic trick actually being worked by the clever magician and her sexy assistant? How does the nonsense at which everybody else is looking give you a chance to foil the trick that both this bunch of smoothies and the other bunch they are investing in and trying to screw are either too virtuous to be doing or too virtuous not to be doing?


Recent action to enforce the terms of the Pledge force me to re-examine my argument

Given my strong skepticism of the Pledge’s ability to impact company behavior, I was surprised to see that on December 1, 2015, the Electronic Frontier Foundation (EFF) filed a complaint with the FTC against Google's Apps for Education (GAFE) alleging that it violates the company’s pledge to limit its use of student data. In light of this complaint, I consider whether my critique of the Pledge is completely misplaced.

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 Despite any perverse incentives that led to the creation of the regime, if the Pledge improved privacy for students, then the initial motives are irrelevant. However, the existence and the propaganda-like support for the Pledge as sufficient protection makes the likelihood of any real rules passing slim, at best. The 200+ signatories are free to continue collecting and mining student data largely without limit (except for the very narrow constraints imposed by the Pledge) and without privacy advocates and politicians constantly looking over their shoulder and questioning their every move. The Pledge is a perfect and carefully crafted distraction from public scrutiny.
Yes, but. See top. You circle around getting to the outer suburbs of #1, but #2 is invisible, which means you don't ever really figure out what the trick is, which means that #3 isn't yet thinkable. Instead you do the thing you're supposed to do which is to follow the handkerchief and harrumph the harrumph you're supposed to have, which means you were so busy being all lawyerly about the details of enforceability and feeling superior to them on the fake reveal that you never even had a chance to look over to where they were preparing the real trick they're going to be playing on human civilization the next time the lights go out momentarily. That's the space to cover in thinking your way to draft 2.


Revision 4r4 - 09 Jan 2016 - 20:40:49 - EbenMoglen
Revision 3r3 - 10 Dec 2015 - 22:15:59 - AlexandraRosen
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