September 27, 2011

With the benefit of hindsight it is only natural that in Germany, thirty odd years after the Greens won their first electoral seats, the Pirates follow in their footsteps. Personal privacy violations and environmental pollution are both major externalities, the signal failures of self-regulated markets.

Reflecting on the Pirate Party's surprise entry into the Berlin state parliament, Nicholas Kulish suggests "issues like online privacy and data protection may seem incredibly narrow, even irrelevant, to older voters" (*). Assuming the ranks of risk seekers decrease with age independently of the nature of the risk and knowing four Germans out of five have Internet access today (1), one would rather think eprivacy appeals to most older voters.

Focused myself on this "incredibly narrow issue", I do applaud the Pirates for having wrested an official recognition but stress that, far from offering a realistic solution, piracy is ultimately the bane of privacy. When everybody relies on might to flee from responsibility, eprivacy is unsustainable.

Having lost in appeal and facing again a $675,000 fine for sharing 30 songs (2), no doubt Joel Tenenbaum would have appreciated stronger privacy. But individual piracy tends to "trigger a legislative backlash that [brings] heightened monitoring". Taken from Joseph Menn's in depth report on the short history of Anonymous (**), this quote fits the story of the French HADOPI just fine (3).

Meanwhile corporations are found today to be the bigger pirates, their scramble for user data fed by an insatiable appetite. Again there should be no surprise. While ideally capitalism is about the benefits of open competition, actual capitalists' profits come from economic rents based on practical monopolies. In our Information Age, the best rents stem from control of confidential user data. Look at how Apple treat content providers.

If corporate piracy has not yet engendered any significant "legislative backlash", it is no doubt due to their ability to dictate terms to law makers by putting cash in campaign coffers. But the Pirate party should also realize this is as much a consequence as a cause of the current decrease in government legitimacy.

The United States for instance leave teen agers in legal limbo, as too young to drink under 21 and vote under 18 but also too old to protect over 13, the limit of the Children's Online Privacy Protection Act (4).

As reported by Somini Sengupta, "the Federal Trade Commission [has] proposed long-awaited changes to regulations covering online privacy for children" (***). To explicitly "include a child's location" among data whose collection requires parental consent is laudable in view of smartphones and the FTC is bound by the law. But what to think of US Congressmen who abandon teen agers to their own devices, knowing they cannot vote?

Were governments to fully and unfaillingly discharge their duties, public opinion would still hold them to higher standards than other competing world powers, encouraging the latter to cover their own exactions by using governments as convenient scapegoats. Call it historical inertia.

Indeed ask people about surveillance, censorship or taxation, and they are likely to think of state privileges and the potential for states to abuse them. In reality they should expect nothing less from current non state world powers. Take censorship.

If you want to watch the watchers, it is enough to watch their watches. For "pointing out the excesses of Communist party officials by identifying and valuing their expensive watches", Kathrin Hille tells us a microblog has been shut down (****). Whether China or Apple, world powers resent those who dare poke fun at them. Speaking of "a 99-cent game for the iPhone that, in a cartoony way, assessed the cost to the environment and to humanity, of producing mobile devices like the iPhone", Jenna Wortham wrily writes "it was not available for long" (*****).

Once supposed to define and enforce the interest of the public, today's governments even find it difficult to make rules, routinely deemed too burdensome. Meanwhile other world powers feel free to pursue their private interests under the guise of self-regulation.

Steve Lohr begins his report on Google's chaiman testimony "before a Senate antitrust panel" by asking "Good Google or bad Google?" (******). This is actually misleading. Corporations are not persons, Google is not bound by morality. But, by the same token, Google cannot defend itself when it recommends its own content, an obvious conflict of interest. "I'm not sure Google is a rational business trying to maximize its own profits". If Eric Schmidt meant what he says, he ought to fire its CEO on the spot for incompetence, dereliction of duty to shareholders or both.

It is true Germany is quite active in denouncing privacy violations against its citizens. True again that Europe promotes opt in to protect consumers against abusive tracking (5), in principle a stronger way to obtain consent than opt out favored in America. As Kevin J. O'Brien quoted the Article 29 Working Party to say, "only statements or actions, not mere silence or inaction, constitute valid consent" (*******).

However the Pirates should not think Europe differs that greatly from the United States. As long as it remains legal to bundle any attractive offer with an opt in to share one's confidential data, world powers like Apple or Google will continue to call the European bluff.

The Pirates should listen instead to the sane voices which come from the United States. In his essay on ownership in the context of cloud computing, Simson L. Garfinkel comes to a plea similar to ours (********). "If we want the best of both cloud and physical possessions, we must find some way to rebalance the scales and reassert our rights. [...] It is the obligation of society to intervene with the laws of man". Privacy is but one aspect.

By strengthening government legitimacy through grassroot appeal, will the Pirates turn this "incredibly narrow issue" into the defense of democracy?

Philippe Coueignoux

• (*) ............... Pirates' Strong Showing in Regional Elections Surprises Even Them, by Nicholas Kulish (New York Times) - Sept 20, 2011
• (**) ............. The scary face of hacktivism, by Joseph Menn (Financial Times) - Sept 24, 2011
• (***) ........... Update Urged on Childrens' Online Privacy, by Somini Sengupta (New York Times) - Sept 16, 2011
• (****) ......... China calls time on internet watchdog, by Kathrin Hille (Financial Times) - Sept 22, 2011
• (*****) ....... Apple Blocks IPhone Game, by Jenna Wortham (New York Times) - Sept 19, 2011
• (******) ..... Google's Competitors Square Off Against Its Leader, by Steve Lohr (New York Times) - Sept 22, 2011
• (*******) ... A European Debate Over Online Ads and Data Privacy Crosses the Atlantic, by Kevin J. O'Brien (New York Times) - Sept 19, 2011
• (********) . A Cloud over Ownership, by Simson L. Garfinkel (Technology Review) - September-October, 2011
• (1) see the data provided by Internet World Stats
• (2) see Sony BMG v. Tenenbaum in the wikipedia
• (3) see le projet de loi HADOPI in the French Wikipedia
• (4) for the text of the law, see COPPA
• (5) for more details, see my lecture on Marketing Campaigns