The Tyranny of Free Information

by Will on April 4, 2013

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From the Law of Hammurabi, through the Roman code of the emperor Justinian, through England’s Magna Carta and France’s Declaration of the Rights of Man, through the jurisprudence of our own courts over the years, the principles that were once called “natural law” came into force. The principle that every person is his own owner, subject to no unwarranted scrutiny or persecution, became more and more emphatic. Privacy was bestowed in the Magna Carta provision that “no free man” could be deprived of his liberty without due process, and further effected in the several amendments of the US constitution that protect citizens from being disturbed in their homes or daily lives in the absence of cause. It gained still further legitimacy when justice William Douglas, writing the majority decision for the court in Griswold v. Connecticut, located privacy itself as formally protected in the “penumbras” and “emanations” of the constitution — a too-clever phrasing that drew much criticism, however good the point may have been. And so it was that a mere decade ago, when Whig historians fed reassuring pablum to the masses, it was a history of progress, in which human rights had been ever improving and were approaching a state of perfection.

Any people who are sufficiently full of themselves to believe such twaddle must be ripe for a comeuppance. And so the internet has come along and showed us what fools we all were.

Insofar as there has been any intercourse between the massive and powerful new “information technology” companies and the law, it has been mostly a predacious affair. Through patent law, the industries of Silicon Valley have claimed legal monopoly to countless “intellectual properties”, and have harassed competitors of all stripes with lawsuits charging their infringement on these private holdings. Insofar as privacy applies to fictitiously walled off realms, guarded by armies of lawyers, it thus remains sacrosanct in the eyes of these bold innovators.

But if the individual user of these services should imagine for a moment that these grand industries have the same boundless respect for his or her own privacy in his or her own “intellectual properties,” then the comeuppance has not yet set in. For the entire profitability of a Facebook or a Google — their whole ability to reinvest in new products, to pay lawyers to dance for them in court, to dupe investors — consists in their free and unrestricted access to the intellectual goings on of the millions of unwitting persons who make use of their services every day. The individuals’ queries, associations, likeness, and even physical locations are appropriated as the salable intellectual property of the companies. Neither the Census Bureau nor the Stasi nor any private detective could ever hope to collect such an exhaustive stock of information.

At the turn of the century, there were still many who would voice the letters “CIA” in a sinister tone. And yet the same people will submit to grant unlimited surveillance of all the details of their lives, ranging from the most casual to the most intimate, from the most personal to the most social, to unscrupulous and very powerful private actors sitting in placid offices in Palo Alto and Mountain View. If it be a central agency collecting “intelligence,” this is apparently much to be feared. But let it call itself a “Web 2.0” company, and let its centralized nature be disguised by the illusion that its actions belong to a diverse board of shareholders, and let it be collecting “intellectual property” instead of intelligence, and now the mind is at ease.

While our forebears struggled for generations to achieve institutionalized protections of privacy, to prevent a well known host of evils, the technology of the internet has proceeded more quickly than the ability of either individuals or authorities or judges to insist on, or impose, certain standards (this is true with regard to much larger topics, but I am restricting myself to one subject). People have only begun to realize the abuses to which these new powers could subject them; let alone the likelihood that this and that abuse will in fact be committed, once there is seen to be money in it, given the lack of formal rules barring this. It is alarming to see that young people, having experienced this “information age” as the only natural and proper state of the world, exhibit seemingly no concept of privacy, and contribute freely into the “intellectual property” of unknown private actors the most lurid and damaging materials. This is the natural result of our failure to put any safeguards in place.

The internet at first appeared to be something like a new Commons: a free ground belonging to all and shared by all, where goods would be for the taking. In the same way that the wise and publicly spirited landlords of bygone times saw fit to fence off and appropriate the Commons, however, so that landless persons would be forced to work as their subservients, it was inevitable that someone would find a way to stand between the user and his object even on the internet. Insofar as the only remedy proposed so far has been abstinence — a hard sell in all cases, even when merited — the current generation has shown a strange lack of imagination.

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