Computers, Privacy & the Constitution

The Social Network Effect

-- By KevinMorenski - 25 Apr 2013


Facebook's guileful beginnings as an exclusive social network for university students helped to create conditions endemic to inherently non-free societies. Such a society characterizes its members not as people, but as a stochastic process generating observed data, viz. points in a high-dimensional space representing the parameterization of statistical likelihood functions that model the human's behavior. In this paper, I argue that such a society is inherently non-free, because it unjustly impinges upon liberty of thought.

In 2004, Facebook began as an exclusive social network, accessible only by those with a valid .edu e-mail address; however, it predominantly targeted students. Facebook was a veritable walled garden; with this came a false sense of security and increased level of trust for a company knowing everything about you and about which you knew nothing. At the time, joining Facebook was a relatively small, harmless, and arguably rational choice when judged from the standpoint of self-interest. However, aggregating each individual's decision produced an undesirable collective outcome: network lock-in. The scope of the choice had transformed: what began as a relatively harmless decision to join Facebook was now a decision to participate in society.

"If the teachers of mankind are to be cognisant of all that they ought to know," wrote J.S. Mill in his seminal essay, "everything must be free to be written and published without restraint." Implicitly restraining self-expression or liberty of thought forces society into "any number of moulds which society provides in order to save its members the trouble of forming their own character." The result is a positive feedback loop where the pressure to conform increases monotonically in proportion to society's homogeneity until mankind becomes incapable of conceiving diversity. The task of jurisprudence is to devise a system of law that maximizes human liberty, and it has failed.

From scientia potentia est to scientia nummus est

Jurisprudence has failed to the extent that it condones obscurantism or agnotologic capitalism--which both promote ignorance and maintenance of a purely capitalistic status quo. That status quo lacks mechanisms for establishing accountability and for conducting privacy audits. For example, The Washington Post's recently published results of a two-year investigation into the United State's top-secret intelligence system revealed an alarming situation: the nine years of spending and growth since September 11th have produced a system so massive that its effectiveness is impossible to determine and its potential for oversight is nonexistent. When provided unrestricted access to the databases maintained by social networking giants, the government gains both the ability to make complicated predictions about a person's character and the potential to punish unorthodox thought. Such surveillance is a clear affront to human liberty and should not be tolerated by any society claiming to be free.

Facebook and its competitors are in the data clearinghouse business and owe no duties to their members beyond those covenanted in their terms of service. Although nothing substantially precludes Facebook from sharing or selling information to third-parties, that is not the major concern. The dangers associated with data leaving the walled garden pale in comparison to those associated with third-party code entering it. The FBI could, for example, pay Facebook to run code that purports to identify potential terrorists. The chilling effect this would have on the free exchange of ideas would bring society even closer to totalitarianism.

Toward a solution

According to Laurence Tribe, much judicial error stems from the presumption that people using modern technology simply "assume the risk;" recitation of risks requires an examination of their compatibility with the Constitution's fundamental values of freedom, privacy, and equality. Unfortunately, the Supreme Court does not have a very good track record in upholding these values uniformly. Katz v. United States clarified the confusion surrounding constitutionally protected privacy rights: Although a constitutionally protected, reasonable expectation of privacy exists, it is entirely context-dependent and often hinges on directness and substantiality grounds. For example, in California Bankers Assoc. v. Schultz, the Court held that the government's need to prevent fraudulent banking activity justified requiring banks to maintain records of transactions and to report certain domestic or foreign transactions. In Whalen v. Roe, the Court noted two of the interests characteristic of privacy: (i) "the individual interest in avoiding disclosure of personal matters" and (ii) "the interest in independence in making certain kinds of important decisions." Therefore, the Court's inability (or unwillingness) to articulate a fundamental right of privacy that addresses the concerns posed by modern technology suggests that we should look elsewhere, perhaps even to Congress.

The greatest harm done is to those who are not heretics, and whose whole mental development is cramped, and their reason cowed, by the fear of heresy. Who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral? J.S. Mill, "On Liberty," ch. II, para. 20.

Of immediate concern is the fight against ignorance, a fight that requires gaining the public's attention and persuasively arguing that liberty of thought necessitates bolstered Internet privacy rights. Absent a victory in this fight, the world as we know it will experience irreversible change.

Yes, this is the way to bring John Stuart Mill into it. You might have wanted to explain a little more about how much of the process of nudging people gently back into place will be done by machine in such a society, and why this form of mechanized social control that affects microbehavior macrosocietally is a further step in Mill's sequence. You might also want to take account of the unconscious parts of human mental activity, the predominant parts, about which Mill is not very interested, but which are surely highly relevant, for it is by efforts to interact with a predictable individual unconscious that the pinnacle of mechanized social control is achieved. It is, after all, the real totalitarianism—as Orwell and his imitator Burgess both recognized, long after the Roman Catholic Church brought the system into working order—to have succeeded in harnessing each human's unconscious as the jailer.


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r5 - 14 Jan 2015 - 22:44:39 - IanSullivan
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