Computers, Privacy & the Constitution

Bounded Freedom

-- By AbirVarma - 26 Apr 2018


It feels like we are living through a period of fundamental transition: toward what exactly we do not know. Though this observation might strike the reader as unsophisticated upon a moment’s reflection (after all is not transition a necessary property of the passage of time?) its true deficit, I must confess, lies in its unoriginality—a slavish imitation of an instinct expressed by Simone Weil in Reflections on Liberty and Oppression. Weil was observing the economic and political forces eroding liberty during the interwar period. We have the misfortune of considering the effects on democracy wrought by the marriage between government surveillance and twenty-first century communications.(1)

It is difficult to reconcile the fact that America—the land of the free—has begun “fastening the procedures of totalitarianism” on democracy and exporting not liberty but political slavery to the rest of the world.(2) A state that “listens everywhere, which can go everywhere, which keeps track of everybody’s thoughts” is “inconsistent with freedom” and is an invasion of our privacy, of our individual autonomy.(3)

And for this encroachment into our personal space we could blame ourselves, for we have unwittingly bargained away our thoughts and feelings to commercial data-mining companies, whose centralized storage of our behavioral data has enabled the rise of unrestrained state spying activity. Under the pretext of selling services tailored to our unique tastes— You Tube—Silicon Valley has made a business of commodifying our individual personalities. By drafting license agreements through which we contract away our property and privacy rights, and hand over to them control of our digital papers and effects, the Silicon Valley giants are able to sell services to us and to sell us to advertisers as well—laying claim to our freedom.

The Definition of Freedom

Though the concept of freedom in legal parlance today is clothed in the language of civil rights, such as the right to privacy, the theoretical underpinning for these “congeries” of rights can be traced back to the concept of “the right to liberty” as it was understood by English-speaking people in the eighteenth century.(4) This “most treasured right” served as an “ideal” for the guidance of government, a standard for defining other rights, and a standard with which to measure the “constitutionality” of government—and was a motivating “purpose” for the drafting of the United States Constitution.(5) Though the concept of privacy as defined in the Snowden Lectures seems to capture the essence of what was meant by eighteenth century notions of liberty, it might be useful to also directly consult the eighteenth-century understanding of liberty, one that was inherited by the American constitutional tradition, in order to adapt legal doctrines that are grounded in the authority of the Constitution to combat the threats to freedom posed by twenty-first century communications.

That being said, the meaning of political liberty in the eighteenth century does not seem all that different from the twentieth and twenty-first century definitions of liberty or civil rights. In the Snowden Lectures, privacy is said to safeguard “freedom of the mind,” and autonomy—one of privacy’s three constitutive prongs—is defined as the ability to make life decisions free from violations of secrecy and anonymity.(6) Weil herself offered a similar definition of the concept of liberty in the early twentieth century—expressing it as a certain type of relationship between thought and action. A “slave,” she said, is one whose actions proceed “from a source other than his own mind”—either “the irrational reactions of his own body, or else the mind of other people”—whilst the free man is one whose “every action proceeds from a preliminary judgment concerning the end which he sets himself and the sequence of means suitable for attaining this end.”(7)

Political liberty as understood in the eighteenth century too was “the power of doing what one had in mind so long as [it] was consistent with non-arbitrary law enacted with the consent of the people.”(8) Its opposites—tyranny, political slavery, and licentiousness—meant being guided by or in servitude to the will of something other than one’s own conscious mind.(9) Modern conceptions of liberty however diverge from its eighteenth-century understanding in one distinct way—liberty itself was considered “irrevocable property”: a “possession [...] inherited at birth, independent of sovereign caprice.”(10)It was thought that legal protections for the security of property “bolstered liberty” by restraining “arbitrary power.”(11)

The concept of liberty as conceived in the English-speaking world in the eighteenth century was seeped in the language of property: of personal domains and objects over which individuals reigned supreme and which demarcated clear physical boundaries between individual and government sovereignty. Material boundaries and possessions perhaps even illuminated the paradox inherent in liberty as an abstraction: we only cultivate liberty by entering into democratic government and creating virtuous laws to curb it. For it to be possessed political liberty must be limited—so too for preventing society from degenerating into a general state of decay.(12) And, just as the law must set boundaries to enable individual freedom, it must restrain government power to prevent citizens from becoming slaves to authority.(13)

The Architecture of Cyberspace

It is not surprising then that the Supreme Court has struggled with updating its Fourth Amendment doctrine to adapt to modes of surveillance that can penetrate personal spaces without being facilitated by acts of physical trespassing. Before the advent of twentieth-century communications, privacy and property rights were wedded together, establishing a double-layered boundary between the sphere of individual sovereignty and the state. The rise of electronic communications has prompted the Court to protect “reasonable expectations of privacy” unmoored from the original “property-based understanding” of the Fourth Amendment.(14)

The collapse of personal papers and effects from three dimensions into two manifested virtually on computer screens and stored as electronic files in third-party servers outside the home seems to make the Fourth Amendment inadequate for protecting liberty in cyberspace. The “architecture" of "real space” enables wall-building.(15) It enables possession and destruction of material things and allows us to exclude individuals from the sanctity of our homes.

Reviving Property Rights and Animating the Thirteenth Amendment

Drafted to maintain a concept of liberty closely associated with the security of property, perhaps the Constitution’s protections for individual autonomy will struggle to adapt to a world where personal property itself is disappearing. But since the liberty encapsulated by the Constitution was itself considered property and presupposes a ‘boundedness’ to our possessions, we could try to combat large-scale commercial surveillance by advocating for broader property rights in our digital media and communications. For instance, though we use digitally downloaded music in the same manner as music stored in analog formats, our iTunes purchases are subject to such restrictive terms of use and license agreements that we are hardly left with any property interests at all. Consumers are misled when they click on the BUY button on iTunes—as they are when they purchase Kindle e-books. By making people aware of their limited property interests with respect to digital items perhaps the insidious nature of centralized cloud-storage and remote delivery of services will become more apparent.

A more fantastical move might be to try to breathe life into the Thirteenth Amendment, which is of course applicable against private actors. Is not Silicon Valley’s subconscious manipulation of thought and harvesting of behavior without payment akin to subjecting us to a condition of involuntary servitude? While the Amendment was drafted to prohibit chattel slavery perhaps some radical lawyer might try to argue that it should serve to apply to ‘political’ slavery more generally. Its broad prohibition on slavery in “any place subject to the jurisdiction” of the United States might even be a match for the architectural openness of cyberspace itself.

I don't think wresting the 13th amendment from the context of slavery is a promising step, and I don't know why you would want to give it pride of place in the conclusion.

But that does highlight the primary point for improvement in the next draft: increased focus and specificity. This draft contains a good deal of general historical language, but it's never made clear what this context is in aid of. Let's try a draft that begins with your idea, whatever that turns out to be, framed simply and put forcefully at the top of the draft. This then gives the context to your contextualization, as it were, putting your general reading of my Snowden lectures into the frame of your own idea. That will allow a real conclusion to be generated, which does not require the deus ex machina of a metaphorical 13th amendment.


1 , 6 : Eben Moglen, Snowden and the Future, Part 1.

2 : _Id_.

3 : Moglen, Snowden and the Future, Part II; _see_Moglen, _Snowden and the Future, Part III_

4 : John Phillip Reid, The Concept of Liberty in the Age of the American Revolution.

5 , 9 , 10 , 11 , 13 : Id.

7 : Simone Weil, Liberty and Oppression.

8 , 12 : Reid.

14 : Katz v. United States.

15 : Lawrence Lessig, Reading the Constitution in Cyberspace


PS--I will clean up the footnotes with proper pincites and formatting for the second draft.

Why not replace footnotes with links? You are writing for the Web, after all.....

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

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r2 - 10 Jun 2018 - 14:45:51 - EbenMoglen
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