July 13, 2010

A pair of scales is one symbol of Justice but who of the iPhone generation has ever used one? How could they realize that, while its tilting right or left can crudely compare relative merits, it is more often used to delicately determine the right balance and give the correct weight (1)?

Striking the right balance can be elusive. For instance Privacy is often used to evade Responsibility and conversely Surveillance gives short thrift to Privacy. How long the latest financial data sharing agreement will last between Europe and the United States remains to be seen. Nothing has been swift in addressing this perennial issue which James Kanter deems to be "a key test of the balance between national securities and civil liberties" (*).

Likewise the United States military doctrine encourages initiatives far below central command only to find itself losing control over its sensitive data. Thom Shanker's story on Private Manning's private recordings in some Iraki "remote outpost" of "classified information not related to the mission of his unit" should be a wakeup call to strike a better balance (**). Not only for the US Army, but also for all those personal data aggregators who roguishly insist only computers, not human beings, can access such sensitive data while pressing employees to innovate. Aren't spies everywhere?

We will honor tomorrow with shouts of "Liberté, Egalité, Fraternité". The French motto itself implies a balance among those conflicting qualities. Methinks, Equality can only be found when the right balance is reached between Liberty and Fraternity. There is, I said, no third way between Anglo-Saxon Capitalism and Socialism, contradictorily depicted as either individual greed versus solidarity or inventive freedom versus lazy envy. No third way indeed but a balance between these two opposite forces which, left unchecked, equally threaten to beat Equality into NewSpeak.

In this perspective, I recommend reading Noah Feldman's essay on the history of the US Supreme Court (***).

The author makes two points. First the US Constitution, together with the Bill of Rights, defines a balance between the State and individual citizens, a balance which the Supreme Court has interpreted in terms of liberty and equality. Second the past two centuries have seen the rise of "powerful corporate entities" as important actors in their own rights, calling for new balances to be struck between them and both State and individuals.

In the original text of the US Constitution, "Persons" are human beings exclusively. Who would countenance the state of Delaware if it bulked up its Congress representation by reckoning its numerous corporations as "other Persons" at the very least, worth three fifths of a "free Person"? Besides, in practice, corporations were created precisely to limit individual liabilities. That associated individual rights be limited in proportion is only natural.

The issue is therefore compounded. How to reach the right balance of rights if the only way for corporations to come under the US Constitution is to inflict "cruel and unusual punishments" to the meaning of its words? Why not heed Lawrence Lessig's call for amending the Constitution with a convention? It bypasses the difficulty of getting the US Congress to agree to anything both important and controversial in less than 2000 pages.

Lawrence Lessig is concerned with the influence of money over the electoral process. As corporations contribute to this problem, its solution would fit in our more general framework. Since he shrewdly declined to write a draft, nothing prevents his ultimate outcome to become a supplemental Bill of Rights. We have already made some suggestions. It turns out they make no difference between corporate and private money donations.

This would appeal to Justice Kennedy for whom "the right to speak freely cannot vary based on the identity of the speaker", without falling into his trap of thinking of "corporations as bulwarks against the government". For by treating corporations as independent actors, we acknowledge that above all they act in their own interests, aligning with the State against individuals or with individuals against the State as the case may be.

This would further facilitate the process as the so-called left would naturally attend to protecting both individuals and the State against corporations and the so-called right to protecting corporations against both the State and individuals. This being America, the rights of the State in its own right whould find no advocate but would nevertheless be set and balanced as bulwarks against corporations on the left and individuals on the right.

That the right would be ready to favor the State to some extent is not so surprising as long as we remember corporations find the State a potential ally to rein in individuals. The current fight over copyrights is the most glaring example. This very topic is also a good illustration of what can be achieved. After all data rights are at the core of the Information Age.

The new Bill of Rights would then re-affirm the rights of authors to benefit from their works but balance it by making clear that such data rights extend to individuals as well, who are but the performance artists of their own life. Much could be modeled after the original Bill of Rights once it is made clear that it extends its protection whenever meaningful to both individuals against corporations and corporations against the State.

It should also redress the error committed by Noah Feldman in his parallel between "an overreaching state or unconstrained market forces". Rather than a fourth kind of actors, markets are mere mechanisms. What makes them dangerous is to be both idolized and manipulated by corporations.

Rather than turning the Constitution into a treaty of economics, it needs only to promote three common sense imperatives. One would nullify all dealings tainted by a conflict of interest. Another would forbid bundling data transactions with any other business transaction, be it formal or informal, beyond the latter's strict fulfillment. The third would deny freedom of contract protection to contracts on information-asymmetric markets.

One can appreciate how much impact such high level concepts would have in our society. Hardly any transaction today is without some conflict of interest or bundling some privacy abandonment and most markets are kept asymmetric by the more powerful party. Actors and the courts however would remain free to work out the practical implications, under review of the Supreme Court, and perhaps beg the State for drawing driving rules.

Finding the right balance is just as important on the lower grounds on our daily life. With copyrights, re-affirming them is one thing, enforcing them something else entirely. What John Gapper calls "the absurdity of copyrights holders being given ever greater theoretical rights while losing their practical ones" (****) signals a broken pair of scales, failing to weigh technical reality against the interests of creative workers and their helpers.

Distributing information is intrinsically leaky and trying to plug all leaks hopeless. Shorter copyrights duration, as John Gapper reasonably proposed, will not help. Rather than a time duration, let a revenue ceiling limit the State legal protection. Plugging leaks then would no longer be needed as it would not increase total revenues. In fact, as can be observed with Dear Lisa's bucket, the faster the leakage, the quicker actual revenues would reach the ceiling as leaks are in proportion to both pressure and potential. But protection would not fail creations Fame finds belatedly.

Pirates beware. You would still be held liable when found in possession of illegal copies, for example as a side effect of some other investigation or commercial dispute. The issue with this proposal is how to set the ceilings according to each type of creative work. Above those ceilings however, one can still sell albeit as part of the public domain. So, if a better balance removes the social utility of piracy and re-establishes a workable revenue framework for creative works, will copyright holders fight very hard to preserve the broken balance they are left with today?

The right balance between Privacy and Responsibility must be based on managing Identity. Hence my motto in search of its Bastille Day.

Philippe Coueignoux

• (*) ....... Europe Resumes Sharing Financial Data With US, by James Kanter (New York Times) - July 9, 2010
• (**) ..... Loophole May Have Aided Theft of Classified Data, by Thom Shanker (New York Times) - July 9, 2010
• (***) ... What a Liberal Court Should Be, by Noah Feldman (New York Times Magazine) - June 27, 2010
• (****) . Shorten copyright and make it stick, by John Gapper (Financial Times) - July 1, 2010
• (1) at least for the masses since, more accurately, a balance measures mass.