Computers, Privacy & the Constitution
The Tech Leviathan

“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.”

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.

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 and used to target political threats to incumbent governments. 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.

Shouldn’t the law be protecting us? The Fourth Amendment, our only constitutional protection of privacy, 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).

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 profits. 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.

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.

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.

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.

With the knowledge that we have this power to seek out an alternative future, we can begin to exercise freedom and resist control.


Webs Webs

r4 - 06 May 2022 - 23:58:58 - MichelleJong
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