Libertarian-Socialism — Protecting Privacy
Protecting Privacy in the 21st Century
Some have said that the “right to privacy” is a made up right and not specifically written into the Constitution. The Constitution is meant to be a living document and as such, it is meant to be flexible, not needing a constant cycle of amendments. This requires it to be “administrated” by the judicial branch, which is why there is the Supreme Court along with the amendment procedure. The Constitution coupled with the amendment procedures provide a legal framework that a whole country can be hung upon as long as the judicial branch irons out the wrinkles, as it were. As the country’s legal laundry, their lifetime appointments were meant to insulate them from politics.
The executive branch provides central leadership and decision-making to steer the ship of state. As the world changes, the job of the legislative branch is to build a useful, relevant and just body of law on top of this Constitutional framework to facilitate leadership and progress. The judicial branch balances the authoritarian nature of the executive branch. Not to mention, the majority driven, politically driven or money driven outputs of the legislative branch that are unconstitutional. The Supreme Court’s ability to interpret how the authors of the founding documents would rule in the 21st century turns out to be quite powerful in this particular arrangement.
The Fourth and Fifth amendments clearly lay out the extent of the individual’s right to privacy, though without using the word. This has led to the complaint that “activist judges are making up law”; because the word “privacy” does not appear in the Constitution or amendments. The world evolves as time goes by and the legal parlance of the day changes too. But what did the founding fathers mean, when they wrote this: “…the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”. Therein lies the core of what is meant by “administrate” the Constitution. The Supreme Court exists to interpret a concept like privacy in the 21st and future centuries. Unfortunately, so far that interpretation has been deeply flawed.
Time and again, there are examples in the news of individual privacy rights being breached with no repercussions for those that breached them. For example, if proper constitutional protections were enforced, the strip search of a teenage girl for ibuprofen would not only be seen as a violation of privacy, but a grave violation of the basic tenants of human rights and child pornography laws. Nonetheless, just such a case made its way through America’s broken justice system.
Common sense is scarce in 21st century America, and such actions by middle school staff in the Safford Unified School District led to little more than a wrist slap for the overzealous do-gooders. The Savana Redding case went all the way to the Supreme Court, because local courts in Arizona found no illegal behavior in stripping a 13-year-old girl to search for ibuprofen. Though the Supreme Court eventually determined that the strip search of the teenage girl was unconstitutional, it shielded the district from liability claiming the law was not clearly established at the time the act was committed. Thus, no consequences befell the perpetrators of such an obvious violation of individual rights and liberty.
When a teenage girl’s naked body cannot be protected by the Constitution and the Bill of Rights, how can some nebulous idea like virtual privacy be protected? American law has strayed from common sense as it relates to privacy in the real and digital worlds. This is not justice, when the Supreme Court shields “agents of the state” from obviously unconstitutional and illegal acts claiming such limits were not clearly defined.
From the very beginning, the founding fathers laid a framework for individual freedom that made the establishment uncomfortable. That discomfort grew with how strong the framework proved in the protection of individual liberty. Despite the efforts of moneyed power, little could be done in 19th century America to deconstruct this framework without declaring martial law. The land was so vast and movement so easy that keeping track of citizens was a crap shoot at best, and politicians struggled to even come up with practical laws to restrict individual liberty.
It was the 20th century that saw the government begin to pass laws that made individual privacy a secondary consideration in affairs between the state and the individual. A modicum of privacy remained however for the individual at the time of enactment due to technical surveillance limitations. In fact, well into the 20th century, the cost of computers, the lack of storage capacity, and slower processor speeds kept a lot of private information actually private despite moneyed power’s desires to make it otherwise.
The close of the 20th century saw rapid technological development as the internet exploded onto the scene. By the time that the planes ran into the twin towers in 2001, privacy had already suffered serious abridgment. The 9/11 terrorist attacks sent the last vestiges of privacy out the window, and fear drove a massive expansion of police powers in this country. Driven by fear, most Americans were happy to be searched at the airport and elsewhere.
The radical freedom-loving founding fathers of the 18th century would be truly appalled at the 21st century government intrusion into individual privacy. Expectations of privacy in the modern era have been eroded beyond all recognition to even 20th century eyes, let alone the eyes of the radicals that formed the United States of America. For centuries in the United States, expectations of privacy were quite high, even in public spaces. Since the World Trade Center attacks, those expectations have been curtailed significantly. Most modern Americans believe the loss of privacy is a requirement for safety and accept it as a necessary evil.
Government, law enforcement, and corporate interests today have vast stores of data on people. Many citizens are mostly unaware of just how much data is available on them. Frankly, even if people were aware, they could do little to control the distribution of the data. The government and corporate interests wish to preserve their ability to monitor the citizenry and their customers. The government has entered into a disturbing alliance with technology companies to protect and expand this ability. Google, Facebook, Verizon and others all have government contracts to facilitate the surveillance that is part of the Patriot Act.
Libertarian-Socialism opposes the unconstitutional spying being done in this country. This activity is allegedly done in the interests of public safety and to protect Americans from terrorists. As a practical matter, it is too often exploited by the moneyed and powerful to protect their interests. As a result, the privacy of an individual American citizen has devolved significantly. Individual liberty has been eroded and leveraged by the moneyed and powerful to keep them in money and in power, but public safety has not been enhanced.
A lack of individual liberty cripples the positive change that Libertarian-Socialism might bring — to reinstate the modicum of privacy Americans once enjoyed in the past. It will be the Power of the People realized through the jury and court system that will rollback these abuses of official power. An upwardly mobile meritocracy is the positive outcome that true privacy brings to the societies that have the courage to embrace it.
The United States is founded on privacy and personal security for the individual. Without this personal privacy, America ceases to be America. As from the preamble,”…securing the blessings of liberty for ourselves and our posterity” means that as technology changes, the same high bar of privacy that was established by the 18th century founders is the type of privacy to be sought by the 21st century citizen. Privacy is clearly one of the true blessings of individual liberty. Of course, it is more difficult in this digital age of data mining and cameras on every street corner, but achieving a real balance on the personal privacy front is a prerequisite to freedom.
Largely unsaid and unconsidered in this debate is the fact that there is so much data generated by the average citizen in the course of an average day that there is no longer a real need for laws to institute an overt or covert surveillance regime. Implicitly, both exist right now. Following the commission of any crime, law enforcement is immediately able to access security cameras, cell phone records and countless other sources of personal data to verify alibis. Libertarian-Socialists believe that with every person essentially in possession of a robot bodyguard in the form of a cell phone that number of peace officers should have decreased, but this has not happened. In fact, the opposite has happened.
This passive surveillance should justify an increase in everyday freedom, but it has not. There are simply too many individuals and corporations making money with the data to imagine that actual privacy could ever make inroads without an enormous grassroots push to get there. The corporations using this consumer data represent a large and powerful special interest group. This special interest group makes less money on privacy and might be a greater obstacle to privacy than the anti-terrorism fear-mongers.
Rather than allowing more and more surveillance by government, law enforcement and corporate interests, America needs to curtail it. The data footprints that everyone leaves these days are sufficient to reconstruct a person’s actions on any given day. Instead of providing more surveillance powers to the authorities, the United States should provide individual citizens with a “privacy firewall” that law enforcement, the government and corporations cannot pierce without court intervention. This is essential in the new century.
Libertarian-Socialism believes that freedom and privacy for individuals invigorates society rather than putting it at risk. The surveillance society stifles innovation and threatens individual freedom. Belief in freedom is not as difficult as the peddlers of fear would have Americans believe. Americans once had a deep understanding that giving up too much personal freedom was tantamount to giving up control of their lives. Looking past fear, there is still this common sense idea about personal control that once was a hallmark of the average American’s worldview. Libertarian-Socialism seeks to tap this dormant worldview. America should be the Home of the Brave, not the Hovel of the Fearful.
That same American common sense recognizes that multi-billion dollar corporations are going to protect their income streams. That means not only will they act as a special interest group opposing increased individual privacy, they are likely to use the data for more than just marketing. For example, if someone did come up with a clean cheap gasoline alternative, or more efficient and cleaner electricity generation, would not Exxon or G.E. be very motivated to derail such a market-breaking invention? A lack of privacy in a surveillance society means those with power can monitor those without power for possible disruptive innovations.
Corporations with the right connections and sufficient money can watch rivals more easily than the average citizen might think. Mark Zuckerberg is one of the wealthiest men on the planet and his company knows a lot about a lot of people. Imagine what happens to his business model in the libertarian-socialist vision of privacy in the 21st century. Revenue streams based upon “watching” consumers are billions of dollars annually. Make no mistake, the rich and powerful protect their revenue streams. If Facebook’s business model were challenged, there will be push back, though it may come under the guise of national security and not corporations protecting their revenue streams. The true motivations of such sponsored legislation would not be “national security”, but the protection of a business model and the money it delivers.
The connection between corporate intelligence networks and intelligence agencies of nation states has become so close that the distinctions hardly make sense any longer. It can be hard to see where private intelligence networks end and nation state networks begin. The CIA even admits to allowing current CIA agents to moonlight for corporate interests. The CIA confirms the practice in a surprisingly unapologetic fashion.
Powerful, corporate interests pay for results, not constitutional obstacles. The CIA and NSA have access to all kinds of digital back doors to privacy as confirmed by Edward Snowden, WikiLeaks, et al. Corporations pay well for such back doors, no doubt. Lack of privacy is bad for America and surely stifles growth and innovation. The libertarian-socialist understands that individuals do have a right and a need to protect data collected about them.
There is more to consider than just the monetary aspects of this lack of privacy, of course. When the government can monitor dissenters so easily and completely, there is a very real, chilling effect across the whole of society. As cages are rattled in the halls of power, the databases are opened and mined for information to protect the powerful. Politicians will always use this data to quash dissent and political competition. Getting incriminating or just embarrassing information on a rival in an election can mean the difference between winning and losing. A crusading politician that threatens the moneyed and powerful can be easily controlled and, if necessary, rendered impotent in this century.
To preserve the intent of the founding fathers when it comes to privacy, citizens must own the data collected about them. It is impractical to pass laws that prevent the data being collected. Imagining that the data will not be collected, because of statute is naïve. The data exists and will be collected, if for no other reasons than to secure the blessings of convenience in the 21st century digital age. Libertarian-Socialism does not begrudge the rich and powerful their revenue streams, but individual privacy is the only way to level the playing field.
Billing data, banking data, movement data, communication data, buying patterns, et cetera, will be collected in the future as they are now. To give individuals the requisite privacy, the law of the land must force “initial anonymization” of this data. The power to decrypt and “de-anonymize” the collected data remains with the individual…OR the courts when necessary through that pesky tedium, due process of law.
The laws need to require encryption to prevent easy access to the data without keys. Those encryption keys should be in the hands of the citizen who owns the data with a public key used for decryption, but which must be obtained through the courts and the owners of the data notified. Additionally, individuals should have encryption technologies that prevent the searching of their personal computers without a warrant. The howls from law enforcement can drown out all reason, but Americans are innocent until proven guilty. Recent court cases have compelled individuals to give up passwords for such encryption technologies, but this would seem to be a clear violation of the Fifth Amendment.
Those with their hands on the levers of power will always use fear to stop the push for individual privacy. There will always be bank robbers, kidnappers, pedophiles, and other horrific individuals who will use the tools of technology to their own nefarious ends in the same way that guns and knives can be used. Repeatedly, Americans are faced with the basic premise of a nation created by the founding fathers, which elevated the individual above the state or at least equal to the state. The founding fathers embraced the concept of allowing 99 guilty defendants go free rather than imprison one innocent person. Privacy is required to achieve that goal.
The loss of privacy in the 21st century erodes the rights of individuals and compels scared citizens to give away what remains of their rights to the detriment of the rest. Only through court actions, subpoenas, search warrants, and the like, should a public key decryption be applied, overriding the individual’s privacy. Individuals should always be allowed to escalate this to a jury trial, because the private data on an individual is indeed their private data. Individuals should always be informed when their data is subpoenaed.
Protecting individual data and privacy from the government and law enforcement is necessary for obvious reasons, but those same restrictions need to apply to the corporate data miners too. Legislation should be sending powerful messages in the privacy laws that will force corporate owners of personal data to anonymize and provide encryption of this data by a key of the owners own choosing. Only a groundswell of support from Main Street can force lawmakers to pass such laws.
The laws will need real teeth, and corporations, government officials or individuals that violate them must face severe penalties. Penalties that have serious repercussions will be required, or the potential positive effect on the bottom line by leveraging personal data will be too difficult to resist. Juries should be allowed to punish corporate violators so that the private sector truly fears entering the courtroom on charges of “trafficking in personal data.”
For example, credit card companies control a lot of data about individual buying habits. Any breaches on their part of data anonymization could be penalized by forcing a credit card company to honor usury laws in the states where they do business. These local laws typically provide for only single digit interest rates, which would seriously punish a data privacy violator. Imagine the pain and suffering to the credit card companies’ bottom lines when they fail to protect privacy. Corporations will comply with these restrictions, especially if juries punish them repeatedly for not doing so. Over time, they will comply.
Government on the other hand, will continue to push their overarching right to act in the national security interest. Corporations will support this push as a way to circumvent the punishments in the courtroom. The United States government is no longer used to the idea of individual rights trumping the rights of the federal authority. The United States government believes that it has the power to wiretap all communications in the country, and so far, no court has ruled against them. Allowing the government to mine data at will is destructive to freedom. Nonetheless, corporations will use their resources to continue to allow unfettered data mining for the government and themselves.
The American Civil Liberties Union and Electronic Frontier Foundation started to pull back the curtain on these domestic spying issues through their lawsuits against the telephone companies that aided and abetted the Bush Administration’s surveillance escalation in 2001 before the twin towers attacks. Unfortunately, the Obama administration helped shutdown these lawsuits by granting immunity to the telecommunication companies that had cooperated with the unconstitutional wiretapping ordered by Bush. The politicians will not protect individual privacy. Politicians will protect corporations from legal repercussions until their constituents loudly require a different outcome.
Citizen awareness of government actions will be the first steps toward elevating individual privacy again in this country. It is only the first step, because the federal government holds many cards in the game. The United States government, in 2001 offered the telecommunication companies about $10,000 per wiretap when it embarked on its wiretapping regimen. The phone companies saw a big revenue stream, once they realized how extensive the government domestic spying program was going to be, so they complied.
All telecommunication companies complied, except for a company called Qwest. Qwest refused on constitutional grounds. The company was rewarded for its patriotism by the cancellation of government contracts that it had already secured. Of course, the owner could see his stock price was going to fall in this battle, and he ended up selling some of his shares, quite logically. The government tried and convicted him for insider trading. He went to prison. The chilling effect was very real.
Once the Qwest CEO, Joe Nacchio got out of jail in 2014, he hinted that his arrest and conviction were directly related to his non-cooperation with the NSA. The holders of power want this information to be known to control others, so his words are allowed. In some ways, this CEO’s story mirrors that of Mikhail Khodorosky, a billionaire that was jailed for tax evasion in Russia. However, most understood the jail time was due to opposing Vladimir Putin, who happens to also be ex-KGB. Authoritarian-capitalism is a real thing and it is on the march across the globe.
The government is in a position to either bribe or bully a corporation into complying. It should be obvious to the libertarian-socialist that courtroom rebukes brought by free juries are the only path. It is foolish to believe that the data miners are going to concentrate on protecting citizens when there are so many other profitable uses for the data. Besides the government encourages and wants them to do this collection and data mining. Libertarian-Socialists will have to work hard to bring privacy back to America.
Libertarian-Socialists should ask questions like, “With all this surveillance power, what was the SEC up to at the beginning of this century? They obviously were not watching AIG and the rest of the financial robber barons, as a financial collapse was looming.”
Libertarian-Socialists should ask, “Why with the level of data mining going on, how did Bernie Madoff make off with billions, while Martha Stewart landed in prison?”
Libertarian-Socialists should ask, “Why was Martha Stewart so important to prosecute, while the entire banking system was being looted?” Libertarian-Socialists can postulate that perhaps she annoyed a powerful person at a powerful gathering, and the SEC was used to punish her disrespectful behavior. The above scenarios would be predicted outcomes of corporate and government snooping.
Without individual privacy, Americans lose their freedom and strength. Individuals become subject to all manner of harassment from petty government officials. Repeatedly, Americans can see private data being used for revenge and political or financial gain, not the preservation of justice. Individuals should understand that a government that does not respect individual privacy does not make them safer, but rather, it puts them at risk for revenge, persecution, and oppression of the worst kind.
The judges have not protected privacy for the individual any better than the politicians have. Only individual juries can begin to acquit defendants, when the prosecution presents the “fruit of the poisoned tree” which is what unconstitutionally collected evidence represents. Only when people understand and take back their own privacy and then act on that understanding as conscientious citizens on juries, can privacy be protected. This is a powerful reason for common sense libertarian-socialists to support jury rights. Common sense tells libertarian-socialists that change will not come from the holders of the power.
