October 12, 2010

Forget the lure of a second, virtual life. What we do live is a binary life from which grey has been banished.

"Mr Kerviel was sentenced [last] Tuesday to five years in prison [...] and told to repay [its employer] the 4.9bn euros it lost in unwinding the ex-trader's [...] unauthorized bets", Scheherazade Daneshkhu reports from Paris (*).

Say, who authorized Tony Hayward's bet on Deepwater Horizon? If his sentence gets confirmed on appeal, our French rogue is entitled to feel a bit envious. I do not mean Mr Hayward ought to reimburse BP to a tune of $20bn and counting for having put profit before safety but the difference in treatment seems to imply Jérôme Kerviel, although far from being innocent, had stolen the money while poor Tony Hayward was just plain unlucky.

Rather than what is Right, exaggerated penalties show Might. Bernard Madoff did rob his victims but is Justice served by condemning him to 150 years in prison (1)? It tastes of senseless, spiteful revenge. This is the spirit of the French HADOPI law (2), which other countries are eager to copy. Referring to it in London at the Royal Society, Tim Berners-Lee declared "canceling Internet access in case of piracy is disproportionate" (**).

Either secret or public, information is of course partially responsible by nature for fostering a binary behavior. Once a secret is spilt, not even a judge can turn back the clock. So why not shrug off the whole issue and get on with our lives the best we can. Listen to the chorus of voices which rise to encourage our acquiescence.

Some say, there is nothing new under the sun. Take friendly spying by our neighbors. Isn't it a practice perfected in every village on earth? While this is true, human interactions are sensitive to threshold effects triggered by technology. I am not alone in stressing this. Writing about "cyberspace gossip" two years ago (3), Christopher Caldwell argued law professor Daniel Solove (4) had already "show[n] that online gossip is not simply offline gossip with a few extra people listening. It is something qualitatively different".

Other voices will reply, precisely, the potential for catastrophic consequences is such that, whenever we wish to hide some personal information, we better keep it a secret. Short of which there can be no good ending in this Hobbesian vision where Internet brings Man back to the state of nature.

As recalled by John Schwartz, "his roommate and another student, according to police, viewed Mr. Clementi's intimate encounter with another man on a Webcam and streamed it on the Internet" (***). And so what would have been a tasteless Peeping Tom prank moved Tyler Clementi to commit suicide while the bullies face "punishments [up] to 10 years in prison" if bias charges are deemed to compound the crime of invading privacy.

Still other voices will be raised claiming these circumstances, however tragic, are not representative and that in fact things are getting better.

There is some truth here. While it has pushed sharing above privacy in the past, its last announcements show a welcomed willingness by Facebook to give users some control over their profile. They will gain "the ability to download all the information they have uploaded on to the site and [find] it easier to see how individual applications are using [their] personal information", reports David Gelles (****). There is more. Facebook now "allows anyone to create a group and include other people [...][so that] users can upload information only to that group", writes Miguel Helft (*****).

As privacy is about control over the information one generates, these developments are quite positive. Yet Miguel Helft adds, "Marc Rotenberg, executive director of the Electronic Privacy Information Center, called the new service double-edged". Indeed the more control Facebook gives to its users, the more they will reveal about themselves into what Paul Ohm has labeled "the database of ruin". One day an unfortunate initiative from Facebook, a slip by an employee, prompted perhaps by a confidence man or by idle curiosity, may prick this data bubble and ruin a user.

If as Marc Rotenberg's observation warns us we can only hope for the catastrophe to be delayed, binary living seems unescapable. Extremism thrives on such closed logic, backed by irrefutable facts which generate ever more disproportionate reactions amidst general, sullen forbearance.

Focusing on black and white will never promote a fulsome array of grey gradations. If we aim at eliminating all catastrophes, we have already failed.

Take Tyler Clementi's tragic fate. Would it have been any different if, rather than his roommate, his unnamed partner had betrayed their shared secret? Has a college student had any qualm when, according to Katharine Q. Seelye and Liz Robbins (******), she publicly "evaluated what she said were her sexual liaisons with 13 student-athletes during her years at [Duke University]"? No doubt she considered herself an athlete of sorts.

No law will deter the next Madoff from a life of crime. No set of rules will prevent all rogues from running wild and some lucky ones from retiring even if reluctantly on a golden pension. Still this should be no reason for abandoning all hopes in the rule of the law.

Information may be either secret or public, it does not always become public knowledge overnight. While some secrets are deadly, eprivacy is more often a question of money. Why not then copy the law which uses the counter-intuitive principle that possession is not the same as ownership to impose a fiduciary duty on all those entrusted with others' money? To merit our trust, make our personal data our own to share under a similar duty.

Nuances of grey of course are boring. Hadn't Larry Hagman been such a popular TV villain as JR Ewing (5), would his winning an arbitration for "more than $11m stemming from allegations that [Citigroup] committed fraud and breached its fiduciary duty" have become the front page news related by Justin Baer (*******)? As $10m will go to charities, both parties' financial stakes are in relative terms safely in the grey zone.

And so for its practical dullness eprivacy falls under what Gillian Tett in her anthropologist jargon calls "social silence" (********). That and the self-interested influence of pronaocracy sustain the willingness to ignore the tools which could enable users to truly manage their confidentiality.

Vive binary living! Think of it as a peremptory invitation to a perpetual Carnival of Venice. Just make sure never to lose the mask you choose.

Philippe Coueignoux

• (*) ............... SocGen soft pedals on Kerviel damages, by Scheherazade Daneshkhu (Financial Times) - October 8, 2010
• (**) ............. Pour Tim Berners-Lee, les législations qui suspendent l'abonnement des particuliers sont un "fléau", with AFP (Le Figaro) - September 29, 2010
• (***) ........... Bullying, Suicide, Punishment, by John Schwartz (New York Times) - October 3, 2010
• (****) ......... Facebook users to gain access to the information they upload, by David Gelles (Financial Times) - October 7, 2010
• (*****) ....... New Facebook Feature Lets Users Interact In Small Groups, by Miguel Helft (New York Times) - October 7, 2010
• (******) ..... Duke Winces as a Private Joke Slips Out of Control, by Katharine Q. Seelye and Liz Robbins (New York Times) - October 8, 2010
• (*******) ... Citi told to pay Dallas star $11m over fraud allegations, by Justin Baer (Financial Times) - October 8, 2010
• (********) . Hollywood wakes up to high drama of the credit crunch, by Gillian Tett (Financial Times) - October 9, 2010
• (1) for more details, see Bernard Madoff in the wikipedia
• (2) for the texts of the French HADOPI laws, see the references for copying, in Liabilities and Vulnerabilities in the Information Age
• (3) Cyberspace gossip is forever, by Christopher Caldwell (Financial Times), June 13, 2008
• (4) for a discussion of Prof Daniel Solove's positions on privacy, see Prof Neil Richards's scholarly article quoted in The tyranny of the freedom of speech
• (5) for more details, see Dallas in the wikipedia