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The Law Needs to Catch up to the Cyber World

I don’t blog much.  Some would say that’s a good thing. But, after reading Shoshanna Zuboff’s The Age of Surveillance Capitalism, my head has been spinning—almost as much as it spun after I read Cathy O’Neil’s Weapons of Math Destruction.  In fact, my head may still be spinning from reading Cathy’s awesome book.  Regardless, there is not much I’m going to offer here that goes beyond the exhaustive analysis and discussion that Bryan Alexander and Friends provide on his site here.

But, let me offer these several, unorganized thoughts.  First, I think perhaps the best summary of what is my principal quibble with Zuboff’s analysis is that she overlooks the obvious:  people are willing to sacrifice privacy in exchange for the many benefits they receive from going online, using apps, etc.  Bryan cites Nicholas Carr’s point in his review in the Los Angeles Review of Books:

While Zuboff’s assessment of the costs that people incur under surveillance capitalism is exhaustive, she largely ignores the benefits people receive in return — convenience, customization, savings, entertainment, social connection, and so on. The benefits can’t be dismissed as illusory, and the public can no longer claim ignorance about what’s sacrificed in exchange for them.

But, I agree with this conclusion only to a point.  Whether we like it or not, access to the digital world has become almost an unavoidable necessity.  Heck, in 2016, the UN declared that web access ought to be regarded as a human right.  See how long you can go WITHOUT engaging someone or something online.  Even if you take a wad of cash and try to flee to live somewhere near the Arctic Circle, you will probably be scanned driving through a toll booth.

BUT, while the public cannot “claim ignorance about what’s sacrificed,” there is also little question that the sacrifice is made because the web remains a wild west with little in the way of enforceable rules.  Private actors—Google, Yahoo!, Facebook, etc., all operate in a digital universe with no Hobbesian leviathan around to keep them in line.  Our only recourse is to threaten to abandon one provider or platform for a better deal offered by another.  But, seriously…what does Verizon care if you jump ship to Sprint?

The problem as I see it is that right now, the law has not been able to evolve fast enough to be relevant in the digital universe.

For starters, we lack a good legal metaphor for life in the digital world.  Let’s start by saying it’s a “market.”  Well, OK.  That makes sense.  We enter markets voluntarily.  Markets are public entities full of private actors that have rights.   But, those rights are not inviolable.  Merchants can’t discriminate—for the most part.  Civil Rights law prohibits discriminating on the basis of race, gender, etc. in public accommodations.  But, if you play the religion card, you might be able to discriminate against customers you don’t like.

We can leave it to customers to pick and choose the merchants they will support.  But, if all the merchants can somehow discriminate against you, the market can be as open as restaurants and hotels were prior to the Civil Rights Acts.  Go ahead and boycott.  See if the powerful merchants care…

So, merchants are free to operate so long as they abide by market rules against discrimination, monopolies, etc.  But what about those privacy rights we willingly (or have no choice but to) sacrifice when we enter the digital world?  The powers of surveillance and the permanence of digital footprints make privacy claims much less enforceable in the digital world than in the terrestrial world.  In the digital world, we really can’t pretend to be naked emperors.  Our enemy is not some truthtelling child. Instead, it is ourselves since we cannot help but be seen… by everyone.

Still, there are two things wrong with this.  First, there is no question that it can be argued that we “agree” to sign away our rights every time we click “accept” or, simply, log on to Google.  In essence, we contractually agree to fork over our rights.  But, there is such a thing as an unconscionable contract. (OK.  I ran home to mom and cited Wikipedia there).  Zuboff notes in numerous spots that courts have routinely stated that internet users willingly sacrifice their rights and, therefore, unconscionability is not an issue… for now.  Restaurant owners used to run segregated lunch counters once upon a time.  That came to an end.

But how to come up with a right that can be enforced against cyber giants effectively and efficiently?

Second, our enemy may actually be that truthtelling child or, worse, the malignant teen hacker who is able to blackmail or bully us as Danielle Citron details in Hate Crimes in Cyberspace.  To prevent that bullying and blackmail, we need a government with enough cyberpower to track such punks down.  Problem is, that’s a lot of cyberpower—enough to dwarf Hobbes’ leviathan and take on the mantle of, say, Orwell’s big brother.

But–do we really want to hand government—any government—that kind of power?  Can we generate a legal system that can control cyberbullies and Google without threatening our freedom even more?

This problem is not new.  In Federalist  51, James Madison said:

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

To ensure the preservation of liberty, the framers of the US Constitution gave the federal government lots of power and then divided that power into a system of checks and balances.  That worked well for a 19th century terrestrial nation even of continental scope.  But, what version of that can work in cyberspace?

We can’t imagine that until we conceive of a system of laws, rights and powers that matches the scope and powers of cyberactors.

Bryan Alexander concludes his reflections on Zuboff by saying “Looking ahead, I think Zuboff outlines an unfolding politics.”  For now, the threats posed by the weaponization of cyberpower are of immeasurable scope.  The law needs to catch up to the speed with which that politics is unfolding.  It is nowhere close.