Ready for review, comments, etc.

Selling Your Soul (Part One): Contracts and Property

Intro

This essay deals with the normative aspects of the trafficking of personal information and the methods used to obtain this information. We will start from the beginning with an ideal of freedom and work our way to clarifying what core values we want to protect, and what the best method is for going about it. I will conclude with the proposition that each individual should be allowed to sell his/her soul in contract but not in property.

On Freedom

The basic theory of contracts is to give structure to a world of pure negative freedom in order to allow for future planning. We allow ourselves to become the insurers for our future actions. More importantly, we allow current selves to bind future selves to these obligations as insurers, limiting our future negative freedom, for the purpose of expanding our current and future positive freedom. At this point, it matters not whether this is true freedom in an philosophical sense, but only that it is an empirical fact that we currently operate in a society driven by this as our conception of freedom as an ideal. We allow our current selves to assign duties to future selves, and it is this mix of negative and positive freedom that we call contract.

On Autonomy

However, there are limits on what we can contract away. The rights of the contract holder is not the same as the rights of a property holder, the key difference being the enforcement of specific performance. Whereas a property right guarantees specific performance, a contractual right uses a measure of expectation damages. Thus, even in the case of a contractual slavery, autonomy is preserved because the slave can always break the contract and opt to pay damages. In this way, we can never fully bind ourselves to anything, and the autonomy of our future selves is always protected. Yet at the same time, we can still create powerful incentives to fulfill our own positive freedom aspirations, and our societal values allow us to sell parts of ourselves while maintaining our future autonomy. This same principle would apply to our personal information, which is not property of any kind but rather a vital part of our identity and autonomy. Thus, we should use a damages system and allow for retraction at any time.

On Fairness

Contract law offers even more protection for the stupid or ignorant so they do not impose unreasonable burdens on their future selves. Contracts can be deemed unconscionable on several grounds, extreme information asymmetry or difference in bargaining power being the most common. Thus, today's standard hundred page long boilerplate contracts and oligarchies like the cell phone industry are suspect, but not altogether unavoidable. The information asymmetry problem can be resolved with either more direct attention to the terms given on privacy provisions or evolution of society. With the current age of rapid information transfer and a growing concern over the loss of privacy in the digital age, what is currently a majority belief about how personal information is treated will be replaced by reasonable suspicion as to the various ways personal information may be exploited and expectations will change. The law should allow every individual to control his contracts, but has never been charged with a duty to impose positive freedom upon us and force every individual to make “reasonable” decisions. Keep in mind that some degree of information asymmetry exist in all contracts as it is administratively impossible for two persons to share all possible relavent information. The next concern with unconscionability in contracts is that the heavy difference in bargaining power between the large corporations and the consumer offers no real meaningful choice. If all cell phones have attached personal information trafficking provisions on contracts for their use, the individual consumer has no real choice but to agree to the terms. However, this argument only works when no cell phone companies provides an opt-out choice. So long as one company charges a reasonable price for opt-out, the objection would be lifted, and with competing companies emerging using internet technology, such companies already exist and will only continue to grow. Note here that with the aforementioned information asymmetry concerns addressed, opt-out and opt-in systems have no meaningful distinction.

Conclusion

To maximize our mixed values of negative and positive freedom, the trafficking of personal information should be allowed with certain caveats. On top of this, these caveats are not difficult to achieve, and actually inevitable with push of technology and without any renewed heavy government regulation. In this inevitable world, each individual should be allowed to sell his/her soul in contract.

-- JakeWang - 30 Nov 2009

This is a really interesting attempt to make headway on these issues using pure conceptual formalism. There are a number of objections that could be made to your definitions, but they don't really matter, because those are your definitions, and in a formalism of this kind the definitions are taken as given. And as long as you remain in the realm of pure conceptions, without considering facts of any kind, we won't notice the flaw in your argument: Contract is said to provide the option of performance or breach with compensatory damages, and this reversability is central to the distinction you want to draw. But no one knows how to reverse the release of information, so that there is no practical reversability for contractual transactions in personal information. Because one can never put the toothpaste back in the tube, as it were, there is actually something close to a property transfer occurring, which puts the whole conceptual argument out.

The traditional solution in such situations lies in equitable instruments, like the constructive trust imposed on the possessor after breach, or some equivalent method for imposing a fiduciary responsibility. But in the real world of transactions in personality, there's no way back: this is also what makes identity theft such a serious problem, and why biometric identification mechanisms are such a terrible idea.

So, as is generally the case for a realist like me, the major benefit of conceptualist experiments like this is that they show why conceptualism never works. Which isn't to say that you can't rescue this argument, at least partially. I think to do so you'd have to be willing to deal with facts a little more, which will reduce the conceptualist purity of the essay, but that may be worth it to you to explain why we should be allowed to transact over personal information. For me, this isn't a game worth winning, because that proposition is so evidently true that I can't understand anyone's denying it. I'm not sure who's supposed to be on the other side of your argument, which is one of the other problems conceptualism often has: it gives itself medals for proving the uncontested.