Computers, Privacy & the Constitution

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UsmanArainSecondPaper 3 - 10 May 2010 - Main.EbenMoglen
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 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were relentlessly harassed by anonymous message board posters, the distaste of many for the episode blurred and superseded the academic contemplation of abstract privacy rights.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.
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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.

 

Revision 3r3 - 10 May 2010 - 22:07:05 - EbenMoglen
Revision 2r2 - 04 May 2010 - 19:07:41 - BrianS
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