Computers, Privacy & the Constitution

Debating Internet Law at the Speed of Light: Confounds of Relativity and Incomplete Understanding


As many invested in the discussion are painfully aware, the speed at which technology is presently advancing severely complicates the design and understanding of any regulatory landscape that claims to properly account for the dynamics of an ever-changing social and technological topography. The resulting confounds associated with such rapid flux in an increasingly interconnected society amplify the need for regulatory coherence and adaptiveness, but at the same time such confounds make reaching consensus more contentious and politically elusive. Like oppositely situated observers debating between perceptions of an unfolding event while moving at light speed, those who debate the future of internet law are faced with the inherent confounds of relativity and incomplete information.

The OED says that "confound" is always a verb, never a noun. Given that no one in the history of English has ever done this before, I think you deserve some credit for the invention of this noun, meaning apparently a confusing mixture of complicated components, objects confounded with one another that confound us, or something similar.

Having awarded credit, however, for its invention, I think it's also wise to consider not using it. You don't really need a neologism. Sometimes "uncertainties" and sometimes "circumstances" will do, and it's useful not to employ a single word to mean those two rather different things.

Particularly with respect to the pivotal issues of (a) how to draw the bounds of internet privacy and (b) whether to conceive of internet access as a fundamental right, these confounds have been on full display in the thoughts/actions of the legislative and judicial branches, as well as in opinions expressed throughout the vast spectrum of media outlets.

I. Relativity

On one side of the aisle, the internet has been dubbed one of the world's most destructive technologies, having the power to unite radical conspirators, reinforce niches of extreme and irrationally unfounded thought, and spread misinformation with virus-like ease. In stark contrast, some on the other side of the aisle have gone so far as to lobby for nomination of the internet for the Nobel Peace Prize, as it represents the driving force behind "a new kind of society in which massive interpersonal contact fosters consensus and understanding." While to some extent such an extreme divergence in outlooks is a reflection of the natural human tendency to gravitate toward extremes of optimism or pessimism during times of uncertainty about rapid societal transformation, both of these outlooks nonetheless seem to root themselves in "reasonable" concerns about the future of society, as appraised through looking-glasses equipped with conflicting personally-preferred visions of the future.

William Saletan, reacting to the death of a baby who starved as his parents were consumed by raising a virtual child online, warned that we could be headed toward a "Terminator-esque dystopia" in the form of a spreading anti-social epidemic. The optimistic view of the future, on the other hand, envisions a more positive social contagion that will involve "cascades of cooperative behavior" and outpourings of altruism like, for example, the rapid spread of donations witnessed throughout the recent Haitian earthquake response. The list of divergences in forecasts goes on:

• Some fear that the human tendency to have a self-confirming bias will lead to ideological segregation and a more "ghettoized, polarized and insular electorate," whereas others assert that the internet is actually more ideologically integrated than old-fashioned forms of face-to-face association.

• Older generations in particular often clamor that the internet negatively affects cognitive and emotional processing of information, whereas others argue that some of these so called AD/HD-like propensities might be better understood as a "positive evolutionary ability for multitasking in a high-tech age."

Doesn't the presence of such stuff suggest that many people are trying to have opinions about something they don't understand very well? They haven't been thinking about it for a long time, so that's not surprising. But it isn't happening at lightspeed for those people who've been thinking for forty years or more about what was going to happen, as I've previously pointed out. So maybe you ought to consider in your analysis that the changes are really happening at two different speeds: very rapidly to people who didn't anticipate them, and much more slowly, even predictably, for those who had several decades of head start.

It almost goes without saying that any political initiative conceiving of internet access as fundamental right must subscribe to the optimistic side of these outlooks, at least to some degree of potential. After all, how can one justify protecting internet access as a fundamental right without quelling these fears of destruction? And beyond these divergences in outlooks, the problem of relativity will inevitably rear its confounding head in the debate over balancing privacy and security interests. In some sense, the extent to which individuals place more or less subjective value on privacy interests revolves around one's conception of individual "dignity." And so long as it can be said that there are a variety of legitimate claims to ideas of dignity, including the way Dennis Prager conceives it, any such debates will continue to be frustrated by relativity compounded at high speeds.

Not necessarily. You didn't earn that conclusion, you just waved your hand in its direction. The missing step is that the differences in outlook somehow determine that there will be no way to achieve a particular concept of freedom using the net. This step is unestablished, and cannot be established in general: of course there are always different values hierarchies in society, and therefore conflicts that parties cannot arbitrate by compromise. But it does not follow that there are no strategies for obtaining one's outcomes "legitimately," despite opposition: that's what politics is actually about. In this particular case, getting to universal service may not involve recognizing "access as a fundamental right," because that's a specialized vocabulary. Showing that universal access is a social necessity for a developed society will not be hard, and will in fact become a fact in the same way that the need for universal telephone service became a fact. Few places needed to make having a telephone a fundamental right in order for everyone to see it was a good idea.

II. Limited Understanding

Prior to the emergence of internet-facilitated interconnectedness that now pervades society, the conceptualization of privacy as a right protected by the Fourth Amendment was relatively easy to demarcate as an issue of strictly physical boundaries.

Not given the telephone it wasn't.

But now, given a suddenly digital and paperless society, the legal understanding of the so called right "to be secure in one's papers" is flummoxed by a technological disappearing act. Physical boundaries housing private/personal information have been replaced by imperceptible digits, and so the debate over privacy has morphed into a struggle to elucidate the nature and consequences of essentially phantom breaches of invisible homes. And with such an elusive phantom perpetrator who is constantly evolving and taking on new forms, efforts to describe the common elements of its serial crimes are inclined to resemble the pathetic flailings of Wile E. Coyote.

To draw an analogy: enforcing the rule that metal bats are not allowed in professional baseball is relatively straightforward -- the breach is perceptible. But as technology advances to a degree such that tools yielding unfair advantages are imperceptible, the result is a generation of statistics tainted by performance enhancing drugs. Moreover, even if the imperceptible is feasibly detectable, the advancement of technology might be ever-pressed to sidestep the old adage that the criminal is always one step ahead of the law -- or, more specifically, that the privacy-breaching technology of the executive branch is often beyond or hidden from the analytical grasp of the other branches. In other words, the executive branch is the primary wielder of technological power because technology is executive in nature -- it enables, for example, the execution of national cyber-security measures that test the bounds of privacy.

But it also enabled us to give civil society universal access to strong digital encryption, which if harnessed fully would significantly if not completely balance out the government's ability to pry.

Who, then, will monitor and chase down the executive phantom? While Supreme Court Justices remain in a twilight zone of telephone analogies and text messages without service providers, the executive branch is experimenting with ADVISE. Kudos to Congress for entertaining the chase by asking for a GAO report, but it's hard not to see the reflection of Wile E. when the request was reportedly made because "they had no idea what the government was doing in data mining." Like the last-minute ousting of a squatter, the legislative and judicial branches may never be up to speed with where the executive is marking its territory, but one can at least hope for enough speed and understanding to ensure arrival before reasonable expectations of privacy have been supplanted by adverse possession.

I don't know whether there's any reason to hope for that. I've explained why I think there are forces already in play whose timescale is much shorter than the time it takes to replace present legislators and judges with ones who are technically sophisticated digital natives. That shouldn't necessarily matter: we can make strategy in stages, and that stage (which I actually think of as stage five, when we are just passing out of stage one) doesn't have to be the next one.

In this opinion piece, whose structure I must admit eludes me a little bit even on third reading, I think I am told that the rapidity of change and the presence of multiple viewpoints means that policy must be incoherent, which is confirmed by the inability of law to provide necessary social control, because legislators and judges lack the necessary intimate understanding of the effects of technology on society. This is an entirely tenable position, but the opinion expressed doesn't really provide support for its conclusions, unless cartoon metaphors count as evidence. Which is too bad, because as I say you could be right, and it would be good to have some confidence in your conclusions. I would suggest a couple of arguments you might want to consider.

First, the idea that "technology is executive" could be wrong. This is, indeed, a particularly strong form of technological determinism; most observers would say that technology is not self-defining, and that the effect of technological change on the enclosing social power structures is unpredictable. Though not a technological determinist, I do think one can have some predictive success with respect to the social consequences of technological change, under limited circumstances. That those limited circumstances can exist, relevantly, in the real world is what I have been trying to prove, with fair initial success, over the last twenty years. So I'm not entirely motivated to disagree with you over your determinism; I do think it's a little overstrong. My problem is that I think either you're right or else technology is just as often anti-executive. And because I don't know which is true, any theory that depends entirely on one outcome or the other isn't realistic, from my point of view. So I don't assume that technology will be either for or against autonomy with respect to the state. I work on the basis that technological design can be informed by the attempt to support freedom.

Second, you depend on the hidden premise that law is a strong, if not the strongest, form of social control. It's not. As lawyers, or at least as law students, we have a tendency to overestimate greatly the strength of law, as neophytes at physics overestimate the strength of gravity. Its importance to the way the universe works is more about its amazing an unaccountable weakness than anything else.

So with law, if your real practical business is pursuing social change. And if your concern is the effect of technology on society, technology may be a better form of social control over technology than law. That would change your conclusions somewhat.


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r7 - 17 Jan 2012 - 17:48:26 - IanSullivan
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