From: Sophie Guite <seg79@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Wed, 18 May 2005 18:14:21 -0400

paper three!

Hi all,
Here is my paper number three, I have a bad feeling that paper two
didn't go through (it's in my "sent mail" but I never recieved a
copy in the inbox), so I'll resend that next.  Footnoted version
attached.

Happy Summer!
sophie



Sophie Guite								             May 16, 2005
Computer, Privacy and the Constitution					  Eben Moglen

Socializing Technology with Open-Source Cultural Production

	In the last quarter century, advances in communications technology
have revolutionized the ways we use, share, and store information. 
We are more mobile than ever before as our identities can be
increasingly transported, stored, and verified external to any
nuanced understanding the self.  Oddly, it is accepted
unquestionably as progress when our lives are systematically
reduced to a few bare facts known (ludicrously) as our “identity,”
which can in turn be represented by a social security number . 
Modern technology is evolving at a faster pace than its users can
keep up with, and the social costs inherent in this discrepancy,
which have been simmering below the surface for many years, are now
just beginning to boil over.  As it becomes increasingly clear that
our constitution and Bill of Rights provide inadequate protection
and guidance in a modern digital world, legislators and courts
alike scramble to try to patch up leaks as they spring, frantically
taping over what is left of a decaying constitutional foundation.
	What we need to do is rebuild.  We can protect our privacy without
compromising technological progress and at a minimum inconvenience,
but in order to do so we need to recognize the inadequacy of the
language of the constitution in the context of incomparable modern
circumstances.  The barriers to even minor constitutional change,
however, are too numerous to catalogue, and indeed even thinking
about where one would begin in such a highly polarized political
atmosphere is dizzying.  Nonetheless, “even in a fake democracy,” 
the place to start is with public opinion, and if people can
understand the extent to which the creation and use of technology
is highly social and political, and therefore malleable, they can
make informed decisions about what they are willing to give up for
the sake of convenience instead of passively accepting anything
that is justified as necessary progress toward some unidentified
ideal of technological utopia.
	In my first paper I identified technological determinism as a major
contributing factor in our failure as a society to recognize the
dangers inherent in massive data consolidation.  Technological
determinism assumes that the progress is in the technology itself,
obscuring the fact that it can be good or bad, and that it is up to
us to recognize our active role in its creation.  But technology is
not inevitable, and Robert O’Harrow’s book revealed the back room
political wrangling and ties necessary to facilitate the emergence
and convergence of warehouse databases, pattern recognition
software, and law enforcement agencies.  As reports of security
breaches and threats of identity theft begin to multiply, however,
people are realizing that perhaps the fundamental values we impose
upon the unstoppable trifecta of technology, freedom and progress
have little to do with selecting a desirable gift for your nephew,
airport security, or even the thirty-second credit report.
	The open-source model of software production has the potential to
be an antidote to the ignorance embodied in technological
determinism by opening our eyes to the social and political
realities of technology production.  Not only is the open-source
model of technological—and indeed, all cultural—production
practically useful, it gives people an opportunity to see that they
(and if not they, someone else) are in control of how technology is
made and used.  Arguably, the next generation of computer users is
already more enlightened in this respect than the cohort of old
white men currently at the legislative helm, having been introduced
to the concept of socialized technology with interactive video and
multimedia online games.  But without evidence it would be hard to
say that these games do anything other than lead us deeper into
Plato’s cave, reinforcing technological determinative assumptions
by giving the false sense of enhanced options.  In other words, a
set of choices taken as such obscures the larger reality that there
are limitations inherent in any given set of choices.
	In his article, “Coase’s Penguin,” Yochai Benkler traces the
viability of open-source production as an alternative to the firm
and systems of contractual obligation and property allocation,
concluding that “peer production of information as a phenomenon
does have broader implications for information production than…free
software”.   Nonetheless, the majority of the literature examining
free software and similar movements treats the open-source method
of production as an anomaly.  What Richard Stallman and others seem
to miss is that when tackling a large-scale project, the method of
subjecting it to the scrutiny of many people under the assumption
that every part of it will be obvious and doable for someone is not
just one way things get done, it is the way things get done.  Even
Benkler stops short of understanding the full range of
possibilities inherent in his recognition of peer production’s
economic utility.  His attempt at numerical formulation of the
infinitely complex variable that is human motivation is so
earnestly ambitious and obviously hopeless as to be almost
adorable.  Rather than examining open source as a way of mobilizing
effort along social rather than individual lines, Benkler takes
great pains (and eighty pages) to hammer this cultural phenomenon
into the framework of neo-classical economic theory, at the expense
of a full exploration of the implications of this model on our
understanding of cultural and technological production.
	The proliferation of the system of peer production for software and
other cultural development (with emphasis on the fact that software
is merely one type of cultural material), while it is obviously not
a panacea for privacy protection in a digital age, is a first step
toward the greater social understanding of our own relationship
with technology that is necessary for reinforcing the essence of
our constitutional rights through legislative action.  The changes
required to secure our rights must be initiated organically in the
form of enlightened public opinion .  Elected representatives do
not act unilaterally without strong public support for a particular
measure, and we certainly cannot depend upon the data brokers
themselves to “self-regulate” or on non-elected government
bureaucrats.  The nature of a bureaucracy is that it is
self-perpetuating and wants always to grow through data and task
accumulation.  Government officials have an entrenched interest in
making their access to databases appear vital, even if it is not
actually helping them catch any criminals or terrorists—consider
all of the hype surrounding the largely inoperative and inaccurate
facial recognition technology.  Regulation is in order at both the
legislative and technological levels, but in order to address
privacy regulation, we will fail of we put the horse before the
cart.  Public opinion must precede legislative action if it is to
cure the cause rather than the ameliorate the symptom, and by
regaining our active role with respect to technology through
open-source software production, we can be aware that perhaps
having a foreigner with a fake id hijack the occasional plane is
preferable to allowing ChoicePoint to hijack our Bill of Rights.

SocializingTechnology.doc

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