November 30, 2010

Last week, I accused the US Supreme Court of intellectual capture as far as eprivacy is concerned. I even chided Lawrence Lessig for being too prompt to give cover to the US Justices (1) instead of showing how their calculated inertia leaves them exposed with no clothe.

Lawrence Lessig segments "privacy in public" in terms of "burden" imposed by undue surveillance, "dignity" trampled upon in the name of security and "equality" undermined to "facilitate commerce". While his analysis is correct, he is led to admit the US Constitution writers could not possibly anticipate those diverging paths and lets the Supreme Court free to defer to further legislative input, whose inherent bias we both deeply deplore.

Rather I look at privacy violations as a case of harassment, if not outright theft of property, and claim protection against both to be already explicitly and deeply embedded in democratic constitutions, witness the US Bill of Rights. Focusing on harassment, i.e. non consensual, targeted, sustained interactions legitimately construed as threatening, frees judges from having to rely on creative reconstruction of past unforeseeable choices.

The oppressor is the one who makes the choice, by picking the present mode of harassment. Whether it imposes a burden on me, attacks my human dignity or gain an unfair privilege over me, whether it is an original threat enabled by technical progress or some same old, it is still a violation of my constitutional rights which the judicial branch has been fully entrusted to uphold and whose ever evolving interpretation it is its task to provide.

The US Supreme Court therefore could and should rule clearly on eprivacy, short of which modern technology will substitute itself to the law, breaking all past tacit agreements along the way. This thesis, put forth by Lawrence Lessig in Code Version 2.0, illustrates how Nature abhors a vacuum. When judges shrink from speaking out, private software becomes public law as mighty lords thrive when central governments shrivel.

The principle behind privacy ought to be clear, applying it however is not without the type of intellectual challenges relished by Supreme justices.

Take F.B.I.'s declared interest in facilitating wiretaps by "major [Internet] companies, including Google and Facebook" (2). Privacy is not an absolute right and the State has superior reasons when our security is at stake. However the Supreme Court would have to weigh three important counter arguments. The temptation of forbidding innovative services non compliant by design. The danger of neglecting non zero burdens under the pretense of their unit cost being small. The risk of creating a dictator-ready central spying system, compared to which the Stasi was a joke.

Indeed the whole Bill of Rights is a self-conscious attempt to prevent the State from harassing citizens. Some wishes for a small central government may be driven by a recurring belief in the Golden Age. But there is such a thing as an overbearing central government. The prospect of turning the I.R.S. into an auxiliary of the police can be appealing to abducted children advocates (3). The Supreme Court would have however to decide if the close cooperation of all its agencies that electronic links promise if not yet deliver to the State, does not deprive its citizens of their human dignity.

However small its cost, such conversion of personal information obtained in a specific context to an unrelated use without the unforced consent, if not the knowledge of the individual concerned, is indeed always done against the interest of the individual to benefit the power who orchestrates it.

Knowing only too well how most websites endorse such practices, Lawrence Lessig perceptively links them to "discrimination" in opposition to "the values of equality". However, if his book ever gets to version 3, this is an area which would gained from being explored in more depth.

Ruling on interstate commerce, a traditional remit, why should the Supreme Court forbid data aggregation without the consent of the profiled?

On the market place, equality means a level field. This does not mean eliminating all risks but making sure, when dice are thrown, no party has loaded them in advance unbeknownst to the other parties. This is why the SEC is so keen to track down insider trading. How can investors compete if some of them learn the facts ahead of all others, not by their own due diligence but through unfair privileges and plain corruption?

In one's professional capacity, the inside source learns a "market moving" fact ahead of the public. The insider's crime is not to know, but to convert this knowledge for a use for which it was not intended, directly or indirectly trading on it as if one were just another naive investor.

Notice the parallel with data aggregation. With each page request, an Internet site quite legitimately receives personal data about its visitor. Shouldn't converting this knowledge to enable targeted ads be considered a form of insider trading? I can hear howls of protest.

Isn't this activity highly beneficial to all, there "to facilitate commerce"? By the same token, bringing insiders to the market increases market liquidity, doesn't it? It does do either to stress how remote data collection can be from the activity which unleashes its ill gotten value. Few insiders dare trade themselves on their own tips. As Brooke Masters, Robert Cookson and Lindsay Whipp reports (*), "Don Ching Trang Chu [...] made a living linking hedge fund traders with corporate insiders". Isn't it the exact same role played by personalized advertising networks?

Still advertisers will rejoin a personalized ad does not take money out of the consumer's pocket. On the contrary, it saves the consumer time otherwise wasted on irrelevant ads. How can it be compared with extracting an unfair gain on a financial market?

First ads compete for the consumer's finite attention and time is money. Second an ad which fits the consumer's profile may displace an ad offering an eye popping discount which might have caught this consumer's fancy. Every party outside the insider ring leaves money on the table, including the consumers whose very own information has been used to undercut their own capacity to extract the best deal from the advertisers.

At the very least, systems which let some parties to be discriminated against while denying them an equivalent power of discrimination, violate equality and doubly attack privacy when this asymmetric discrimination is based on converted confidential information.

Even if no conversion occurs, unchecked discriminatory practices may attack privacy via dignity. When fair, commerce justly rewards the discriminating buyer. When personal interactions such as dating are concerned, discrimination is normal and its reasons covered by privacy. Otherwise discrimination unexplained is justly suspected of being unjustifiable. In this instance progress may help rather than hinder privacy.

On a properly formalized implementation of a value market, all relevant data within the law is captured ahead of matching, all matching criteria expressed ahead of data exchanges (4), discrimination is thus mutual, encouraged, unbiased by extraneous considerations and so explainable.

Were it the case for real estate transactions, Jonathan Zittrain could have known why he was "an unsuitable bidder" on an Oxford property (5). In the instance Jonathan Zittrain was left to speculate he was rejected for his nationality or his academic affiliation. I can think of worse explanations.

Should the courts let those who scoff at privacy put their invisible hands in our pockets and act as if the US Supreme Court were in their pocket?

Philippe Coueignoux

• (*) . Cross-border clampdown on insider trading, by Brooke Masters, Robert Cookson and Lindsay Whipp (Financial Times) - November 29, 2010
• (1) Code Version 2.0, by Lawrence Lessig (Basic Books) - 2006
• (2) see: Wider Web Wiretap Law is Sought, by Charlie Savage (New York Times) - November 17, 2010
• (3) see: I.R.S. Sits on Data Pointing to Missing Children, by David Kocieniewski (New York Times) - November 13, 2010
• (4) for an example, see the services offered by ePrio
• (5) see: Wired for relaxation, by Rebecca Knight (Financial Times) - November 13, 2010