protect privacy better than law does, but where they don’t, then in my view law is needed.
Privacy Compared
The reader who was dissatisfied with my argument in the last chapter is likely to begin asking pointed questions. “Didn’t you reject in the last chapter the very regime you are endorsing here? Didn’t you reject an architecture that would facilitate perfect sale of intellectual property? Isn’t that what you’ve created here?”
The charge is accurate enough. I have endorsed an architecture here that is essentially the same architecture I questioned for intellectual property. Both are regimes for trading information; both make information “like” “real” property. But with copyright, I argued against a fully privatized property regime; with privacy, I am arguing in favor of it. What gives?
The difference is in the underlying values that inform, or that should inform, information in each context. In the context of intellectual property, our bias should be for freedom. Who knows what “information wants[52]”; whatever it wants, we should read the bargain that the law strikes with holders of intellectual property as narrowly as we can. We should take a grudging attitude to property rights in intellectual property; we should support them only as much as necessary to build and support information regimes.
But (at least some kinds of) information about individuals should be treated differently. You do not strike a deal with the law about personal or private information. The law does not offer you a monopoly right in exchange for your publication of these facts. That is what is distinct about privacy: Individuals should be able to control information about themselves. We should be eager to help them protect that information by giving them the structures and the rights to do so. We value, or want, our peace. And thus, a regime that allows us such peace by giving us control over private information is a regime consonant with public values. It is a regime that public authorities should support.
There is a second, perhaps more helpful, way of making the same point. Intellectual property, once created, is non-diminishable. The more people who use it, the more society benefits. The bias in intellectual property is thus, properly, towards sharing and freedom. Privacy, on the other hand, is diminishable. The more people who are given license to tread on a person’s privacy, the less that privacy exists. In this way, privacy is more like real property than it is like intellectual property. No single person’s trespass may destroy it, but each incremental trespass diminishes its value by some amount.
This conclusion is subject to important qualifications, only two of which I will describe here.
The first is that nothing in my regime would give individuals final or complete control over the kinds of data they can sell, or the kinds of privacy they can buy. The P3P regime would in principle enable upstream control of privacy rights as well as individual control. If we lived, for example, in a regime that identified individuals based on jurisdiction, then transactions with the P3P regime could be limited based on the rules for particular jurisdictions.
Second, there is no reason such a regime would have to protect all kinds of private data, and nothing in the scheme so far tells us what should and should not be considered “private” information. There may be facts about yourself that you are not permitted to hide; more important, there may be claims about yourself that you are not permitted to make ( “I am a lawyer”, or, “Call me, I’m a doctor”). You should not be permitted to engage in fraud or to do harm to others. This limitation is an analog to fair use in intellectual property — a limit to the space that privacy may protect.
I started this chapter by claiming that with privacy the cat is already out of the bag. We already have architectures that deny individuals control over what others know about them; the question is what we can do in response.
My response has been: Look to the code, Luke. We must build into the architecture a capacity to enable choice — not choice by humans but by machines. The architecture must enable machine-to-machine negotiations about privacy so that individuals can instruct their machines about the privacy they want to protect.
But how will we get there? How can this architecture be erected? Individuals may want cyberspace to protect their privacy, but what would push cyberspace to build in the necessary architectures?
Not the market. The power of commerce is not behind any such change. Here, the invisible hand would really be invisible. Collective action must be taken to bend the architectures toward this goal, and collective action is just what politics is for. Laissez-faire will not cut it.
Chapter 12. Free Speech
The right to free speech is not the right to speak for free. It is not the right to free access to television, or the right that people will not hate you for what you have to say. Strictly speaking — legally speaking — the right to free speech in the United States means the right to be free from punishment by the government in retaliation for at least some (probably most) speech. You cannot be jailed for criticizing the President, though you can be jailed for threatening him; you cannot be fined for promoting segregation, though you will be shunned if you do. You cannot be stopped from speaking in a public place, though you can be stopped from speaking with an FM transmitter. Speech in the United States is protected — in a complex, and at times convoluted, way — but its constitutional protection is a protection against the government.
Nevertheless, a constitutional account of free speech that thought only of government would be radically incomplete. Two societies could have the same “First Amendment” — the same protections against government’s wrath — but if within one dissenters are tolerated while in the other they are shunned, the two societies would be very different free-speech societies. More than government constrains speech, and more than government protects it. A complete account of this — and any — right must consider the full range of burdens and protections.
Consider, for example, the “rights” of the disabled to protection against discrimination as each of the four modalities of Chapter 7 construct them. The law protects the disabled. Social norms don’t. The market provides goods to help the disabled, but they bear the full cost of that help. And until the law intervened, architecture did little to help the disabled integrate into society (think about stairs). The net of these four modalities describes the protection, or “rights”, that in any particular context the disabled have. Law might intervene to strengthen that protection — for example, by regulating architectures so they better integrate the disabled. But for any given “right”, we can use this mix of modalities to describe how well (or not) that “right” is protected.
In the terms of Chapter 7, then, these are modalities of both regulation and protection. That is, they can function both as constraints on behavior and as protections against other constraints. The following figure captures the point.
In the center is the object
