Privacy, Property and the Role of Consent in a Permissionless World

by Neil Turkewitz

In a recent Slate article entitled “The Watchdogs that Didn’t Bark,” April Glaser addresses the silence of leading digital civil society groups like EFF, CDT and New America in the wake of the Facebook-Cambridge Analytica scandal. She poses a fascinating question: “If [those] groups had focused more on protecting communities and their needs… would they have been more likely to notice that people are not only harmed by government data collection but by corporate data collection, as well?” It is an important question, and I applaud Glaser for challenging the underlying world view of the digital rights community. Examination of effects rather than modalities would certainly have a profound effect on how we conceive of internet freedom and governance, and we should celebrate this questioning of prevailing orthodoxies.

But I would frame the question even more broadly — what would have happened if these groups had fought to safeguard consent in all its manifestations instead of uniquely focusing on the relationship of the individual to the state? Glaser hints at the answers — both to her question and mine. These groups were innately incapable of achieving such a perspective given that the “founding principles behind a lot of internet advocacy has its origins in libertarian and anti-regulation philosophies. As a result, a lot of complaints from privacy advocates over the years have focused on how government surveillance is harmful to our constitutional rights and less on how they might be harmful to our communities.” There is another, less ideological reason as well — also noted by Glaser: “It’s also hard to overlook the fact that a lot of privacy advocacy groups in the U.S. get funding from the same tech companies that would ostensibly be affected by government regulation of consumer data collection.

The central point is that digital activists tend to advocate positions that serve the commercial interests of dominant internet platforms. Their activism springs principally from the cyber-libertarianism of John Perry Barlow, who saw government involvement in cyberspace as the greatest threat to the brave new world created by digital technologies — a world in which communications could instantaneously cross borders without trespass. As such, the principal driving ideology of groups that see themselves as digital activists is to prevent, as much as possible, the application of the laws of man to the operation of the internet.

Like most businesses, internet platforms prefer to operate outside the jurisdiction of governments. Unlike offline businesses, however, they have the ideological cover of what is essentially a fundamentalist religion, and armies of digital Templars dedicated to preserving a separation of the Church of Tech Exceptionalism and the state. This church worships an tech exceptionalism infused form of internet freedom — a freedom defined by a lack of accountability to institutions of democratic governance. Everything is seen through the prism of the relationship of the internet to the state. Or as Barlow put it: the “home of mind” vs. “the weary giants of flesh and steel.”

It’s small wonder that activist organizations like EFF and CDT are mostly in the shadows at the very moment that online privacy is dominating the headlines. It’s not their thing. Focusing on the real-world impact of internet conduct isn’t just outside their wheelhouse, it is largely incongruous with their Barlow-inspired vision of internet freedom. Their idea of dystopia is the one painted by Orwell — an authoritarian state reliant upon the suppression of information. They are ideologically unprepared to address the fact that it is really Huxley’s vision — information overload rendering government controls irrelevant — that much more accurately describes our reality.

They are fighting the wrong war.

This also explains why they, along with Glaser, are on the wrong side of history with respect to copyright. Copyright is a property interest dependent upon intervention by the state and the rule of law. As such, its very existence is fundamentally at odds with the vision of internet freedom lauded by digital activists. What they fail to see is that the real battle is to protect consent. Copyright requires consent from creators to use their works. Privacy requires consent to access what makes us who we are. Two sides of a single coin.

The inability of groups like EFF to see the injustice of combating the erosion of consent regarding copyright undermines any moral high ground they might otherwise have claimed to protest against the effective removal of consent as regards privacy by internet platforms.

Glaser fondly recalls the ability to engage the public against SOPA without realizing that was not, as advertised, a fight against the Man, but a fight for the Man. It was just the Man disguised as freedom. But the deal was more complicated — the public got “free,” while Silicon Valley companies got freedom — the freedom from consequences.

Glaser laments the lack of solidarity with community: the lack of awareness that internet conduct has real world implications on individuals and communities. That is a huge step forward and a necessary predicate for achieving reform of internet governance built upon a foundation of consent, but it begs the question: what next? EFF, CDT, and Fight for the Future have been reliable allies of Silicon Valley companies in their quest to be free of democratic governance. Their advocacy on SOPA served the interests of dominant internet platforms. Their defense of Section 230 of the Communications Decency Act and Section 512 of the DMCA likewise serves the interests of Silicon Valley. Can we realistically expect them to be part of the vanguard in defending the importance of consent and individual liberty when it doesn’t serve the interests of Silicon Valley?

Glaser writes: “Even before I left the world of internet-freedom advocacy, I disagreed with its emphasis on constitutional abstractions over real-world harm to communities, and it’s a tension that I think helps explain why the major internet-privacy groups are so silent about Facebook’s mess now.”

She’s right. It’s time for digital civil society to face their own demons. You can’t celebrate the defeat of SOPA and simultaneously have credibility on privacy. Their willingness to override the consent of creators in defense of innovation has bankrupted their ability to protect citizens, consumers and users against harms predicated on the erosion of consent. Let’s pay close attention to consequences and celebrate the kind of freedom that recognizes life in an inter-connected universe. Real freedom, which includes accountability. Not an “internet freedom” predicated on the absence of restraint. A freedom that doesn’t only operate for the benefit of the powerful.

Finally, lest there be any misunderstanding, I wanted to clarify that I am not proposing that Facebook (or Silicon Valley more generally) should be “regulated.” To my mind, the problems we confront in internet governance are more the result of action than inaction. We weren’t negligent in failing to regulate the internet. We were wrong to establish carve-outs from liability that excused malfeasance merely because the conduct took place via the internet. Section 230 of the Communications Decency Act, and Section 512 of the DMCA to a somewhat lesser extent, relieved internet platforms of liability regardless of their knowledge or intent. That’s an error of commission, not omission. The answer isn’t to be found in regulation — it is in returning to standards which discourage irresponsible conduct.

Law, not regulation.