Computers, Privacy & the Constitution
*Feedback welcome!*

Marketing The Privacy Right

-- By UsmanArain - 02 May 2010

Part I: Thinking About Aims and Goals

“A liberal is a conservative who’s been arrested. A conservative is a liberal who’s been mugged.” - Wendy Kaminer, It's All the Rage: Crime and Culture

Whatever the merit of the above quotation as a theory of crime victim psychology, I find it speaks to an intuition that has been lurking in my mind since day 1 of this course about the way the pro-privacy movement (a term that I use in this paper to describe the movement to expand recognition of privacy rights) to the layman. The purpose of this course, as I understand it, is to warn us about the terrifying long-term consequences of the ongoing erosion of privacy rights in our society, and to galvanize us into activism in support of the movement. This formulation takes the concept of “us” for granted. We who enrolled in this course have demonstrated a willingness to at least entertain our professor’s warnings and calls to action. But of course, to the vast majority of our peers, both at CLS and in society generally, the concept of privacy is not nearly the talisman that it is to us. Professor Moglen’s reaction seems dismissive. He appears to believe that the movement will be sustained by an enlightened vanguard which welcomes new membership but can survive without it, and won’t compromise its values to attract it. This is fair enough, I think, insofar as the movement’s goals are to prescribe policy changes for large institutions – the government, big business – which are instinctively unpalatable to the uninformed and complacent layman (with respect to national security, crime control, social networking, etc.), regardless of the ultimate net benefit.

However, in the big picture, this strikes me as a short-sighted approach to effecting long-term systematic change. In the long-term, the aforementioned large institutions will continue to respond to the preferences and priorities of the mainstream, not what it perceives to be the esoteric concerns of an academic fringe. Thus, while it might not be expedient for the pro-privacy movement to engage in substantive policy debate with the mainstream, it might be profitable to reflect on the ways in which the movement can inspire and influence the priorities of the mainstream. The goal of this exercise wouldn’t be to compromise the movement’s principles and vision, which I believe are fundamentally correct, but rather to become informed about the ways the movement’s aims might gain enough traction to precipitate organic change from the grassroots.

Returning to the above quotation, I believe that this hypothetical exercise must consist of reflection on the ways individuals adopt and modify their political values. Kaminer’s quote illustrates two such ways. First, intellectually curious people are not limited by an absence of direct experience from developing political positions – from their armchairs, so to speak. Second, such background ideologies are quickly dispatched in the face of relevant direct experience, especially a serious exigency or crisis. In the next section, I will briefly discuss how these principles might apply to the pro-privacy movement’s agenda.

Part II: Defining The Privacy Value

The pro-privacy movement seems to aim at the first of these modes of adopting political values. Much of the course’s materials explored the theoretical underpinnings of the right to privacy and ways that these underpinnings are threatened by recent societal developments. The course did succeed in conveying these principles and threats with far more rigor and detail than would be achievable through passive media exposure. But at the same time, it isn’t like these ideas aren’t being circulated within the mainstream. There is currently active public debate, facilitated by the mainstream media, on several of the forefront issues from our class, including network neutrality, Facebook and data mining, abusive warrantless surveillance, protections for text messaging, and a certain state’s recent immigration legislation, among others. These debates will be settled in individual cases by courts or by public opinion, through either elections or market forces. The point is that the arguments are out there, and people just have to take sides. The question is: on these debates where privacy is the central issue, how does the movement attract people to its side?

My position is that this must happen by outlining and/or clarifying the political value of privacy for the mainstream. While data mining through Facebook and warrantless surveillance are disquieting to most, I wonder whether these are extreme examples that don’t quite illuminate the boundaries of the privacy right. For this to happen, more emphasis should be placed on the difficult borderline questions that cause reasonable people to deviate from their background ideologies. Such situations require a balancing of the privacy right against other values, and through this balancing the right’s weight can be ascertained.

An example of this type of issue is the right to use the internet anonymously. As a First Amendment matter, anonymous speech has long been regarded as a “shield from the tyranny of the majority.” Accordingly, courts have applied stringent evidentiary standards in deciding whether to grant subpoenas to identify anonymous internet speakers, and groups like the EFF and ACLU work on behalf of anonymous internet users seeking to protect their identities. Shifting from the legal sphere to the public sphere, however, it is less clear whether the mainstream observer agrees that anonymous speech should be so vigorously protected, particularly in light of the profoundly enhanced defamatory potential of Google search results and message boards as compared with pre-internet forums. For example, in the infamous Autoadmit lawsuit, in which two arbitrarily selected law students were relentlessly harassed by anonymous message board posters, the distaste of many for the episode blurred and superseded the academic contemplation of abstract privacy rights. Regardless of our personal policy views of such incidents as students in this seminar, it would behoove us and the pro-privacy movement generally to engage with these emotional reactions to privacy-related issues and search for satisfactory responses, so that we might develop a coherent formulation of the privacy right to wield in current and future debates.

Here we have a self-declared opinion piece, which is helpful, I think, in allowing us to set our expectations in the same frame as yours. As an opinion, its functional hypothesis is that the analysis I have offered was "to warn us about the terrifying long-term consequences of the ongoing erosion of privacy rights in our society, and to galvanize us into activism in support of the movement." On that basis, you conclude that I have been offering you movement strategy, and you take exception to the strategy you understand me to be offering.

I think you're knocking down a strawman, as it happens, for reasons I'll come back to. For now, however, I want to deal with the content of the argument you present against the strategy you claim I have. In your view, it's a bad idea in making movement strategy to use clear examples of the actual problems that the movement is designed to solve, because the people one needs to attract to the movement are muddled middlers, who should be communicated with about the messy ambiguous situations where the goals of your movement have to be traded off against other concerns, or may not be valid at all. I admit that I think this argument is self-evidently preposterous. But as a neutral matter, putting my own starting point aside, when I go to look for the arguments in its favor, by consilience, from related disciplines, I have difficulty locating them. Is this the way political parties and movements historically behave at their inception? No. Is your strategy the way other civil liberties movements communicate by preference with their supporters? No. Is your recommendation in line with the personality psychology of the people who tend to support and maintain the discipline of civil liberties organizations? No. Do I find, when I consult my own experience over the last twenty years as a strategist for some movement parties in the area of technological liberty any examples of notable success from approaches like the one you recommend? No. So I find myself wanting you to give some basis for the opinion you're expressing.

In fact, however, as I've said, I think the whole thing is boxing with shadows. The purpose of the course I taught was to equip people already convinced of the importance of the subject with a range of consilient intellectual support—from history, technology, media theory, and even some law—to assist them in understand what the constitutional situation really is, where the problems are going to be, and what might be said about them from the perspective of those most concerned about civil liberties in technological context. That's not the presentation of strategy, and it's not the recruitment pitch for people who eat dinner in front of the television. I do think about strategy for the pro-privacy movement from time to time. My recent thoughts are available, and you could critique them if you want to. I would be very interested in your views.

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, UsmanArain

Hi Usman,

I appreciated your essay. I think it identifies a hard question: how does the privacy movement effectively convey to the public the dangers it perceives from technological privacy erosion? At your invitation, I have a few thoughts on the essay. (Edit: Wow, I didn't realize before I posted this that I wrote a bazillion words on the topic. Sorry for the excessive length.)

The first sentence seems to be missing a word to me after or before the parenthetical. Perhaps "relating"?

Also, as a general matter, I would keep in mind that there is a whole other CLS course that Moglen taught that addresses some of the things the essay suggests the privacy movement should think about (perhaps you've taken it, I surely don't know). I don't think the essay intends to, but the vibe I got from the first few paragraphs was a critique of the privacy movement as personified in this class; in other words, it read sort of like it was picking a fight! I don't think you meant to do that and perhaps I'm seeing something that isn't there. But if I saw it, and given there is another class that responds to it (we actually had a lot of discussions on the wiki and in class about some of these issues), I thought I'd mention it.

I also dare to wager that Professor Moglen would ultimately agree with you that there is substantial value in communicating with the public about privacy risks and reform. I have had conversations with head EFF folks as well who certainly agree with that public-education goal. What I'm getting at is I agree with you completely that the privacy movement will often get further by educating the mainstream than it will by institutional reform, but I think we disagree on how effectively we think the movement is already doing so.

Lastly as to Part I, I would hesitate to predict Moglen's views on the recruitment/"sustained by an enlightened vanguard" idea, I think he probably values recruiting new torch carriers quite a lot. Though I confess, I haven't taken my own advice here since I just tried to guesstimate what he'd think in this comment re: communicating with the public about privacy risks. Just a thought, you and I might just have different writing styles in this regard.

As to Part II, though I think you well-summarized part of the purpose of this course and the current privacy debate, I disagree somewhat about what I think is an important detail; I don't think it's the whole story to say that "the arguments are out there, and people just have to take sides." I think, actually, the problem is people aren't listening. I think it's just air passing over most people's heads because they don't care, which is because they don't think privacy loss of the sorts we're discussing is a real threat to their day to day lives. So I think it's more than just a matter of getting people on one side or the other, it's getting them to realize the issue is actually problematic. It's getting them to listen at all so that they then, once listening, formulate a position and "take a side."

In this regard, I agree with you that the privacy movement could stand to do better at pinning down the harms and clearly explaining and identifying them for mainstream listeners. I think your essay makes that point well. But I do wonder: why would the privacy movement try to convince the mainstream by using the borderline cases, where there will by definition be more disagreement as to which side of the line the case falls on (and whether there is any problem worth paying attention to at all)? Isn't it better to use the big-gun privacy problems when you're trying to get attention, provided you aren't making the big-gun problems out to be more of a problem than they really are?

Finally, I appreciated the final paragraph's efforts to draw forth an example to illustrate what you had in mind. It was helpful and informative.

Thanks for your essay. I hope these comments are helpful.

-- BrianS - 04 May 2010


It's very interesting to see how others have interpreted Moglen's classes. I'll be honest--I'm a little surprised at what you thought the goals of the class were. In addition to this class, I have taken Moglen's Internet Society class and in both I never really felt that Moglen was attempting to "galvanize" us in activism. In fact, at least in the Internet Society class I remember him saying something to the effect that he wasn't attempting to convince/persuade us in any sense and he knew that a lot of people would disagree with his views. He was very explicit about the fact that he was simply presenting his arguments to shed light on a viewpoint that, for many, was relatively unknown.

I, personally, came into the classes having a semblance of an idea about what I thought the privacy and free software movements were about, but I knew that I really didn't understand them well enough in order to engage in critical analysis. I took Moglen's classes to understand the full argument, with all its nuances, from someone who is one of the most outspoken on the topic. (Also, prior to the class I had recently started getting into free software and was interested in the licensing issues that are involved with the GNU GPL--who better to learn from than the guy that has helped draft it?) I felt that I achieved this goal, and while I may disagree with some of Moglen's arguments, by taking his classes I was able to become informed enough to be able to disagree in the first place. I never really felt like Moglen was attempting to "push" anything on me.

With that being said, I am not saying you are mistaken in your interpretation of the class whatsoever. I understand that you may have not taken the class for the same reasons as I did, and thus likely perceived Moglen in a different light and had different expectations.

As far as part of your argument, I agree with Brian about the "picking sides" debate. Most of the "laymen" I know have absolutely NO idea about any of these privacy arguments/movements/etc. They hardly even know that any "sides" exists. I think this whole "movement" is going to be a long, drawn out process. Even Moglen himself has said that he doesn't expect a lot of these major problems to become self-evident for at least a decade or two. Unfortunately, our society does not really work in a preventative fashion.

-- EdwardBontkowski - 20 May 2010



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r6 - 17 Jan 2012 - 17:48:33 - IanSullivan
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