November 23, 2010

Some words count. Some count words. Reckoning himself among the latter, Adam Liptak has built a well documented case against the current US Supreme Court and indicted it for writing opinions which tend to be too long on word counts and too short on words that count (*).

One of his reasons resonnates with these fillips, no less than the US Justices "provid[ing] only limited or ambiguous guidance to lower courts" in matters regarding "electronic privacy". In support of his thesis, Adam Liptak quotes "Judge Frank M. Hull of the federal appeals court in Atlanta complain[ing] [...] [a certain] privacy decision featured a marked lack of clarity" (1).

Lest we wonder whether the US Justices are totally losing their grip, Adam Liptak makes clear they themselves are well aware of their obfuscation. While Justice Antonin Scalia openly deplores it, Justice Anthony Kennedy argues that "rapid changes in the dynamics of communication and information are evident not just in the technology itself but in what society accepts as proper behavior".

Anthony Kennedy does have a point. Where jurisprudence has precedence over law codes, prudence should preclude too quickly turning isolated cases in fast evolving contexts into lessons on lasting principles. In such cases, following popular justice often yields to fashion and revenge but expert justice too runs the danger of becoming inconsistent and who would be foolish enough to prefer conflicting principles to narrow decisions?

Still when it comes down to eprivacy, too much prudence confines to folly. When confronting with what amounts to an emerging economy based on plunder and lordly might, sitting still is the worst case of what John Kay calls intellectual capture. History is not kind for "les rois fainéants" (2).

Being French, I have long advised a principled approach to eprivacy and advocated our data rights as universal. If they want to bestir themselves, the US Justices are most welcome to remix my fillips into their opinions as my advice is free (3) and, the reader be judge, consistent. But I am not blind to the difficulty of what should be their task, that is, teaching by example how to turn such principles into solving practical cases.

At least US Justices have the benefit of time. When Charlie Savage reports "the director of the Federal Bureau of Investigation traveled to Silicon Valley [...] about a proposal to make it easier to wiretap Internet users" (**), is it far fetched to think this matter will one day come in front of their court? When David Kocieniewski writes that "missing children's advocates see the I.R.S. data as a potentially powerful resource" to track down the abductors (***), should the US Justices wait till briefs land on their desks to exercise their brains?

What happens in foreign lands should also be taken as an opportunity to warm up in the privacy of their chambers, free from any actual pressure. Take for example Rebecca Knight's report that "Harvard internet expert Jonathan Zittrain" was once found "an unsuitable bidder" for an undisclosed reason by the British estate agent who had put a house on the market (****).

Justice Kennedy may agree his colleagues and he can foresee many of the cases they tackle but still object that this does not mean the intervening years are not already accounted for by the ordinary business of the Court or, wags will whisper, by tempting offers to hunt in important company.

As a way to save time though, it is not unusual for sitting judges to get up to speed by reading learned law professors. How long does it take to download Lawrence Lessig's "Code version 2.0" and read its 400 pages (4)? There is, I concede, an issue. While the author has mastered his brief at length and freely shares his recommendations, he refrains from telling judges what to do. Indeed he gives them a good reason to do nothing all.

Judges are bound to interpret and apply the written legal record to the cases at hand, not to expand it creatively. Yet privacy in the Information Age requires new choices, Lawrence Lessig argues. This Gordian knot he cannot untie is "a case of [...] integrity overcoming [...] judgment" (5). Were a miracle to persuade Antonin Scalia the Constitution covers eprivacy as part of personal property, I have no doubt on how he would solve the knot.

Take "privacy in public" for instance, a case Lawrence Lessig calls oxymoronic and in which he admits defeat at the onset. "The law provid[es] no legal protection against the use of data gathered in public contexts". "If I hire a private detective to follow you around, I've not violated anyone's rights". The author then proceeds to show how modern technology reveals this current legal framework to be defective and forces change upon us.

I would rather not enter in a legal argument with a lawyer, especially given the agreement between Lessig's positions and the ones I, a software engineer, have since independently developed in these fillips (6). So improbable a convergence must convey a strong message to society at large.

What I disagree with is that, by his narrative, Lawrence Lessig condones Anthony Kennedy's refusal to speak concisely and clearly about privacy. Even if the Supreme Court does not mend its ways, its intellectual capture should be highlighted, a lesson that transcends national boundaries.

First it is misleading to insist on the exceptional character of information as a piece of property which can be shared without having to be taken away. True enough but isn't it the same with money? When a debtor gets a loan from a creditor, the latter does not lose what the former receives. This phenomenon, money creation, has its own pitfalls but nobody suggests the right to one's financial assets is not covered by the US Constitution.

Second privacy in public is best understood in terms of blackmail and harassment, both characterized as non consensual, targeted, sustained interactions legitimately construed as threatening. As it happens, such threats were already well known to the writers of the US, and I shall add the French, constitutions (7) and modern society has if anything become more and more sensitive to them quite independently of technical progress.

Privacy in public follows then from everyone's right to be protected from blackmail and harassment. What I, as a private person, do in public is shared with every member of this public, but the latter may not do all what they want with it no more than my bank with the money I lend to it. Put it this way, technology does not change the values of society, it simply lowers the threshold above which one goes from using to abusing my data.

In this new narrative, the Supreme Court can and should "translate" this traditional and universal right for today's society. See how next week.

Philippe Coueignoux

• (*) ....... Justices Long on Words but Short on Guidance, by Adam Liptak (New York Times) - November 18, 2010
• (**) ..... Wider Web Wiretap Law is Sought, by Charlie Savage (New York Times) - November 17, 2010
• (***) ... I.R.S. Sits on Data Pointing to Missing Children, by David Kocieniewski (New York Times) - November 13, 2010
• (****) . Wired for relaxation, by Rebecca Knight (Financial Times) - November 13, 2010
• (1) look up this opinion, issued by the US Supreme Court in June 2010, in the references listed for my lecture on Surveillance.
• (2) see the entry roi fainéant in the wikipedia
• (3) look up "Legal framework" in the theme index of these fillips.
• (4) do it yourself from its official site Codev2
• (5) quote attributed to Antonin Scalia according to the wikipedia
• (6) blinded by Lawrence Lessig's past work on copyrights, aware of his current focus on pronaocracy, his broader views escaped me until a few months ago.
• (7) for the US, the entire Bill of Rights is primarily designed to protect citizens from bullying by the State.
  .... The French Declaration of the Rights of Man broadly openly attacks bullying by Society.