Law in the Internet Society

Should Privacy go the way of the Pyramids?

-- By MeganBuckley - 17 Oct 2014

As Professor Moglen explained, although society generally recognizes the Pyramids as an impressive architectural feat, it does not mourn the lack of new construction. One reason for this is that society has rejected the propertization of people as a morally reprehensible cost.

Are you sure? That does not seem evident to me when I look around. Perhaps it's not a point you need to be resting on anyway.

Propertization of data, specifically, individual ownership over the records created by human interactions with technology, also has a cost—its commoditization. Treating private data as a commodity does not protect the individual; instead, it encourages abusive government surveillance and promotes corporate manipulation. If free access and sharing promotes superior outcomes in the context of software, knowledge, and ideas, and ownership over such things is bad, why is control and manipulation of private data acceptable? And at what cost to society and the individual?

Sharing everything, except…

How can the propertization of Private data be reconciled with the Free Software Movement? If sharing software promotes access to knowledge, resulting greater social and economic equality, more Mozarts and Einsteins, why wouldn’t sharing data result in superior outcomes as well?

It does. We call that science. But the ethics of scientific investigation, like the ethics of informed consent in medical treatment, are non-trivial outgrowths of social experience, and it's hard to discuss the question seriously without taking them into account.

The Free Software Movement uses “free” in terms of “liberty, not price. . . . as in ‘free speech,’ not as in ‘free beer.’" But isn’t free data more like free speech than free software? Software is created through time and effort, whereas private data simply results from a growing amount of human activity. To deny ownership over aggregated Google searches and Amex expenses, that which is created in absence of any mixing of labor, appears much easier than to deny that which was created at personal expense. Furthermore, if free access to Private Data can be used for the betterment of all what justification exists for asserting ownership?

What does "Private Data" mean? Either it's unnecessary, because all data is the same, or there's a category containing some further ethical or legal distinctions you haven't surfaced. Why the comparison to free software (or Wikipedia. or Creative Commons-licensed music or anything else voluntarily shared) is relevant so far escapes me.

At present, those in power promote the monetization of data and promulgate rules against its sharing because doing so advances their own interests. The moral imperative to correct this injustice will increase as human interconnectedness grows. If data were made free, available to everyone, then purported ownership of it would have no value. With no need for haphazardly created passwords or incognito browsing, possession of private data would no longer grant corporations a monetary edge, nor give governments political leverage. But, as long as the assumption that private data is valuable property holds fast, the incentive to access, hide, and manipulate it will drive those in power to seek control.

What horrors would arise?

Could we imagine a world in which data, that created by personal and behavioral interactions with technology, was freely available to everyone to investigate, study, distribute, and develop? Arguably, couldn't freeing data improve the common good and enhance individual liberty? If no one were excluded from accessing data, individuals would have the tools to live more deliberate and informed lives, governments could provide more efficient services, companies could produce goods more attune to public tastes and preferences. Aren’t these inherently superior outcomes?

Consider some examples raised in class from a different perspective:

First, the risk that insurers will punish those who consume unhealthy meals if they had free access to spending data. It should come as no surprise that junk food may lead to higher health costs and shorter life expectancy. However, if made freely available, individuals could use the mass aggregation of personal and behavioral data to quantify the monetary and personal cost and make truly informed decisions. An individual could decide they get just enough utility from junk food to give up a handful of years in their 90s and an extra $10 per month in insurance costs, but not a penny or day more, With access to the data, individuals could adjust consumption appropriately according to their own values. Society would also benefit, because costs would be appropriately allocated.

A second example is the risk that governments will use access to user data from mass transit systems for political leverage or personal blackmail. However, if everyone's data was freely available, the government could make decisions spending allocations on transportation in the most efficient way. If the government failed to use the freely available data effectively, some other group would. Because the government would not have a monopoly on the data, the only way they could leverage it would be by using it to provide better services.

A third example is the black box data in cars. Legislation is pending in New Jersey that would limit access to this data in response to concerns over driver privacy. Certainly if access to the data is limited, law enforcement or insurers could use it selectively against drivers for their own benefit. But, if the black box data was easily accessible and free to all, wouldn’t everyone benefit society? No one could "win" by cheating the system and hiding their speed, nor could their be surreptitious selective enforcement.

Privacy, in context

Present understanding of what makes data private is in no way an ultimate truth. Though revoking ownership of the data created through interactions with technology seems an invasive threat to privacy, such concern is based on a culturally and temporally limited understanding of privacy. Across cultures and time, what is perceived as private or invasive varies greatly. Community knowledge of an individual's purchases and relationships would be of no concern to a traditional society. Traditionally, to object to such knowledge would be offensive to community. Why does this change with the involvement of technology? If we are to reject assumptions` such as paying to communicate, why not reject the assumption that sharing data is an encroachment on privacy?

Why not? Presumably only for some ethical reason, about how we think people should be treated and why. Your position, if I understand it correctly, is that such matters are relative, situational, subject to social definition rather than determined "deontologically." This is, in itself, a fundamental issue in all ethical thinking. We can take as given, then, that you are arguing from a situational, consequentialist perspective: "privacy" should be defined by the outcomes a particular definition has. But that's just the first step down the path. The Chinese Communist Party. the European Commission, the Government of India and the current US Administration all have very different attitudes about the detailed trade-offs your essay generally invokes, though all in one way or another would probably agree that the ethics of privacy are to be determined by some utilitarian calculus or other. What all will agree about, however, is that your proposed degree of transparency, which naturally would involve everyone knowing whatever government knows, is unacceptable, inconceivable, and irrelevant to serious social policy. The Catholic Church, which along with many other religious organizations and social movements, would deny that the ethics of privacy are situational or consequentialist, believing that they are instead part of divine law applicable throughout the universe regardless of situation. You may indeed prefer to assume this objection away. But in order to present your idea clearly to your readers, it would help to situate it clearly against the background of others' thinking. The free software movement, whatever relevance it may have in other contexts, seems to me of little relevance to that activity.


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r2 - 04 Jan 2015 - 15:33:02 - EbenMoglen
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