Computers, Privacy & the Constitution

Lessons from the Environmental Movement

-- By LeoWeissburg - 2 May 2021


The problems of privacy resemble those faced by environmentalists for the last half-century: industrialists who argue that pollution is a necessary byproduct of progress; individuals who fail to realize the externalities of business practices we condone; and a government unwilling or unable to regulate polluting industries. Throughout the 20th century, the environmental movement won many important victories. By considering the successes and failures of the environmental movement, privacy advocates can draw important lessons.

Privacy's Burning Rivers

In popular imagination, environmentalism's greatest victories were inspired by flash points that inspired public outrage: particularly the Cuyahoga River fire in 1969. It can be discouraging to consider the past twenty years of privacy degradation and feel that little has been done—despite Snowden's disclosure and so many other revelations.

But the tidy narrative of the Cuyahoga River obscures a complex history. The 1969 Cuyahoga River fire—itself a relatively minor event—simply happened at the right moment for a coalescing movement to capitalize on decades of prior advocacy, shocking the conscience of America into action. Snowden's work, like the far more devastating Cuyahoga River fire of 1952, is likely just the first in what will be a long struggle to arouse outrage and action in the general public.

The Importance of "Process" Laws

Often overshadowed by the Clean Air and Water Acts, NEPA has been described as America's most important environmental statute, despite imposing no substantive requirements. Instead, NEPA forces the federal government to consider environmental impacts and, importantly, allows for public participation. While NEPA isn't perfect, it is widely celebrated for its positive effects.

A limited obligation to consider privacy implications already exists whenever administrative agencies implement technology systems that could collect personal information. Expanding that into a NEPA-like obligation to consider the privacy implications of every FTC approved merger, FCC licensed piece of spectrum, or any other government action would force consideration and allow public input on critical privacy issues.

​The Old Must Teach the Young

Seeing powerful images of endangered animals or visiting national parks is enough to make a conservationist out of almost anyone, but privacy and its benefits can be intangible and difficult to describe. Thus, privacy advocates will have to rely on those who have experienced a freer world explaining the benefits of that world to young people. Knowledge transfer from seniors to the very young is a proven method of inspiring environmental stewardship. Children in turn pass that information on, acting as change markers in their own homes. The same tools will work for privacy—those with the experience of age can explain the benefits of privacy, and the young can, in exchange, help them use new tools to protect their own privacy.

Like Carson's "Silent Spring," privacy advocates also need evocative, beautiful writing about privacy and freedom that will inspire people to donate time and money, to improve their own privacy practices, or take up the fight however they choose. For me, Cory Doctrow's "Little Brother" sowed the seeds this course has cultivated. For others, it may be Shoshanah Zuboff's work, or the dotCommunist manifesto. For still others, it may be talking to grandparents about a world in which it would be unthinkable for the government to know who you talk to or what newspapers you read.

Some Important Differences

An Individual Responsibility for Privacy

Polluting industries often try to distract from their own culpability by placing responsibility for environmental problems on individuals, even as the infrastructure that would enable people to take even the most meager steps towards conservation—such as mass transit, municipal recycling programs, or affordable EVs—does not exist, and can not exist without significant government investment.

In contrast, the same measures that businesses use to secure their own data are equally applicable to individual use. The infrastructure required to enable privacy already exists—and is being improved all the time thanks both to industrial demand for data security and the diligent work of free and open-source programmers. Just as environmental advocates have educated millions about the need for conservation and sustainability, privacy advocates can work to make the already-existing tools of liberation even cheaper and easier for ordinary people to adopt.

Further, while developing software architecture is not necessarily easy, it is much cheaper and involves far less regulatory and bureaucratic wrangling than developing new physical infrastructure technologies. Thus, unlike most environmentalists, privacy advocates can actually build the infrastructure they seek to implement—designing it to satisfy both user needs and the purposes of freedom. Widespread adoption of simple, effective, and low-cost privacy measures—iterated and perfected through industrial use and constant open-source tweaking—will have an incredibly powerful collective environmental effect.

Missteps to avoid

Environmentalism's early focuses were (and perhaps, still are) mostly the province of the wealthy. Privacy advocates must consider the needs of the poor, particularly because some of the most egregious applications of privacy-invasive software—such as facial recognition-based surveillance, price discrimination algorithms, or job application tracking systems—harm those who are already vulnerable.

Further, many environmental protection efforts have historically transferred polluting facilities into minority neighborhoods—causing health disparities that persist to this day. Privacy advocates must not make the same mistake—they must not be content to curtail surveillance power in America. Projects like Facebook's "Free Basics" must be resisted to ensure that firms do not have an outsized role in the networks in developing countries.

Fortunately, privacy advocates have an advantage here: replacing physical infrastructure is typically quite costly, thus changing fundamental paradigms is incredibly difficult. But while convincing people to adopt a change in digital infrastructure may be difficult, actually implementing that change requires far less money, time, and coordination—making discrimination “baked in” to existing digital infrastructure much easier to address.

Finally, some of the environmental movement's radicalism that won so many gains so quickly in the mid 1900s has ossified into a focus solely on discrete, "apolitical" issues, and away from grassroots advocacy. Privacy advocates should not forget that theirs is a liberatory movement—privacy, and the freedom it enables, must be part of a broader progressive effort to ennoble humanity in the digital age.


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r7 - 04 May 2021 - 17:53:26 - LeoWeissburg
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