Computers, Privacy & the Constitution

A Zero-Zero Game

-- By AdrianNtwatwa - 06 Mar 2015

Over the past weeks, a common theme in our class discussions has been the zero-sum nature of the future of freedom of data flow. On one side is the specter of complete an inviolable censorship of all data, as espoused by Xi Jinping of the People’s Republic of China. And on the other is the prospect of absolute unencumbered freedom of data flow, a digital extension of the American creed that is freedom of speech. The conclusion of this thesis is a very fatalistic one in which only one of the two outcomes is possible. There is no middle ground. There is no 0.5 in this binary equation. Neither can live while the other survives, to quote a fictional philosopher. Based on the tenor of our classroom contributions, I would say this hypothesis has been hard for many to take. In fact, it has come to represent many people’s view of the very Professor that espouses it: bitingly stoic, constantly challenged, and only accepted arguendo. I too will now oppose this thesis, but not for the reason many before me have done so.

Section I

According to Eben, the People’s Republic of China wants to universally throttle the freedom of data flow. On China’s desire to curb the freedom of data flow, I think we can all agree the proof is in the pudding. I will not labor that particular point by citing statistics on what we all know is the deplorable nature of internet freedoms in China. To assert that China would like to extend its dominance of data flow outside of its sovereign borders to the rest of the world is not so much a logical leap as it is a natural next step.

On the other hand we have the United States, a lighthouse of liberty shining the beacon of freedom to bring all others safely ashore. To many in the United States, the phrase “freedom of data flow” is simply a placeholder for “freedom of speech”. And that which we call the 1st Amendment by any other name should still grant just as much freedom. So just as “bad speech” and “good speech” are afforded the same protection (I am admittedly oversimplifying here), so are revenge porn and charity websites afforded the same legal protections.

This is where most of the classroom would disagree with Eben, arguing that the first amendment does not abide child pornographers and their ilk. However, Eben’s point (if I understand it correctly) is that you cannot have your cake and eat it too. You (Congress) cannot calibrate the First Amendment to censor one form of data freedom while allowing others. To do so would contravene the one thing the First Amendment specifically told Congress to do vis--vis the abridgment of freedom of speech, namely to “…make no law…” According to Eben, were Congress to make such laws, it would become nothing more than the ugly more gridlocked stepbrother of the Politburo.

Section II

My argument is not that there ought to be some reasonable middle ground whereby we can police the internet pedophiles while still permitting “good” freedom of data. My argument is that one premise on which Eben’s argument stands – that the United States is trying to achieve an unparalleled level of free access to data for all – is false. On the contrary, I believe the United States government is trying its very best to achieve freedom of access to information for itself, not for its citizens or the citizens of the world, and at the expense of the privacy of these very people.

When we discuss China, the tenets of their internet tyranny seem threefold; a belief that all information belongs to the government, the resultant regulation of data (as is the right of the government to do so with the information it believes it owns), and the consequent need to monitor all data for security purposes. In the United States, we find the need for freedom of data flow. Additionally, there is a strong belief that all information belongs to the people unless they knowingly and purposefully afford it to the government. And finally, there is an abiding sentiment that regulation of data flow should be minimal if at all, as evidenced by the recent turmoil regarding net neutrality.

However, the United States government, much like the People’s Republic, strongly believes in the need to monitor data flow for security purposes. The exact nature of these security purposes changes from day to day and is practically always above most citizens’ clearance level. Just last week it was confirmed that the NSA (and GCHQ) launched attacks on Gemalto’s computer systems in an attempt to access data in the possession of the SIM card giant. Meanwhile, with its right hand, the United States vehemently criticized China’s plan to force all tech companies that wished to operate in the communist nation to place backdoors into their software and share the encryption keys with the Chinese government.

I can fault Xi Jinping’s administration for many things but never for its lack of consistency. The United States government on the other hand preaches freedom of data for all while practicing an invasive data monitoring that belies its true desire to access any and all data available at the cost of all privacy concerns. In the land of the free, not only does privacy have to rise when security interests enter the room, it often has to leave the room entirely. So my question is this: how can we imagine a future where only one of these two nations prevails? How can we envisage a world where one will shepherd us into a future of either stark data policing or of laissez faire information flow? How can we picture such a future when not even the government espousing the latter is buying what it’s selling? It does not seem to me that this is a zero-sum game at all. The calculus simply does not add up: the limit as we approach either future is always zero.

This all seems to be built on a misunderstanding of my point. I don't know what the US government will do: I know what our principles are. I have said that there isn't a middle ground between a network holding the new form of humanity together controlled by power and a network in which the free development of each is the free development of all. Your argument against that is that I am overemphasizing the US government's commitment to that aim, which I have not taken for granted in the slightest, and about which whether we have any dispute or not it lies beside your chosen point.

If I am wrong about the polar destiny of society in relation to the Net, show why. If you can't, then construct the next draft not in an argument with me, but in some other direction.

Section III

Professor Moglen’s comments to the first draft of this paper were to the effect that I was overstating the U.S. government’s commitment to maintaining freedom of information in the world. His point, if I understand it correctly, was that while he knows what the American principles regarding the flow of data around the world are, he is in no way espousing the view that the U.S. government will actually go about living up to these principles.

My response is not to pivot away from my previous argument. It is instead to double down by going after the one thing that Professor Moglen states he does know: what the American principles are. Now, admittedly, I do not believe I can accomplish in a paper the feat of proving that American values regarding privacy and freedom are anything other than are articulated in the constitution and have been chanted by every red-blooded American from the dawn of the nation. However, it is telling that in this day and age, Americans are more than likely to permit their government to spy on them if it is for the sake of preventing terrorism.

Every day, American values of freedom and privacy regarding the digital and telecommunications realm are trampled upon. My second paper focused largely on this and pointed out the many ways in which, despite a lack of evidence to prove its efficacy at preventing terrorism, Americans are still willing to let the NSA collect their phone data. The country has reached a point where even a recent federal appellate court ruling that NSA’s indiscriminate collection of phone-call metadata is illegal may not stop Congress from reauthorizing the very same behavior next month.

Yes, the constitution may indeed protect such freedoms. But are they still part of the core American ethos if they are not even as good as the paper they are written on? If the tree that is internet and data freedoms in America falls and nobody is there to hear it, let alone stop it, do these values still ring true in American hearts? My point is that nothing is truly certain anymore. And to paint the destiny of society’s access to data in such binary terms is on even less sure footing when you consider the above.

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r4 - 25 Jun 2015 - 19:52:24 - MarkDrake
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