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Computers, Privacy & the Constitution
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Lessons we can learn from Alexander Meiklejohn in light of the Cambridge Analytica scandal-- By MirelisValle - 26 Mar 2022In March 2018, Cambridge Analytica, a data consulting firm, was exposed in its dealings with the Donald Trump campaign for using data improperly obtained and harvested from Facebook to build psychological profiles of potential voters.1 The company extracted the data it sought directly from Facebook and through a quiz app on Facebook where users took quizzes and volunteered information about themselves without knowing that it would be used in political campaigning.2 Cambridge Analytica used the harvested information to build an algorithm that decided what news showed up in the Facebook news feed of certain users.3 The algorithm delivered a curated selection of news based on the user's particular traits. It was like each user received a different newspaper that had been tailored to appeal to its individual characteristics. While traditional political campaign strategies such as radio and TV advertising seek to influence the mind of the voters, the Cambridge Analytica-Trump apparatus aimed at voter manipulation. Its objective was to steer voters into voting in a certain way. As many as 87 million Facebook users were estimated to had been affected by this scheme, most of them in the United States.4 According to critics, these efforts had a significant impact on the result of the United States presidential election of 2016, where Trump prevailed over Hillary Clinton.5 The Cambridge Analytica-Trump scandal uncovered the fact that our online activity can enable politicians to decipher, without our knowledge or consent, our psyche in order to manipulate the way we vote. Even after Facebook updated its terms and conditions to allegedly prevent something like this from happening again, the data that enabled it continues to be out there. Surveillance capitalism6 and domestic governmental surveillance (commonly known by its euphemism "bulk data interception")7 continue to extract it from us. Every day. Through our smartphones. Whether we are aware of it or not. Hence, voting manipulation through targeted digital content can and will happen again. The question is: what does this mean for our Democracy and what can we do about it? History and political philosophy can provide us with essential assistance in navigating these inquiries. In an era of political persecution and censorship fostered, among other things, by the Smith Act of 1940 and McCarthyism? , Alexander Meiklejohn defended the People's absolute right to obtain information and consider all ideas, including unpopular or unfavored ones, when evaluating matters of public policy or deciding whom to vote for. Meiklejohn believed that freedom was inextricably intertwined to self-government. Political freedom, in his view, did not mean freedom from control. Instead, it meant self-control. "We, the People, are our own masters, our own subjects" he contended, adding that "[i]f we, the People are to be controlled, then We, the People must do the controlling."8 At the center of his thesis of self-government was freedom of thought and belief, particularly on matters affecting the general welfare. While he believed that the government could set procedural rules determining the time and place of speech, he rejected governmental point-of-view discrimination or censorship. In his view, the right of the People to discuss, but most importantly to hear, all relevant information and ideas about matters of public interest was unbridgeable. He argued that "[w]hen men govern themselves, it is they -and no one else- who must pass judgment upon public policies."9 Voters had the right to hear "whatever they may deem worthy of their consideration",10 which would include "unwise ideas ... as well as wise ones, dangerous ideas as well as safe, un-American [ideas] as well as American."11 The crux of Meiklejohn's argument was that it was the People and not the government -or anyone else- who got to decide what ideas and information the People could consider when deciding matters of public policy. It was in this vein that he strongly opposed governmental censorship of ideas describing it as a "mutilation of the thinking process of the community."12 To Meiklejohn, the right to vote was the pillar of self-government. He believed that the First Amendment protected, not only the right of the People to cast their vote at the polls, but also their right to choose, with independence, the candidate they were going to vote for. Independence of judgment and freedom of belief were at the core of the People's sovereignty. In that regard, Meiklejohn wisely asserted that "our judging of public issues, whether done separately or in groups, must be free and independent –must be our own. It must be done by us and by no one else."13 With regards to the right to vote, he contended that "we must be equally free and independent in expressing, at the polls, the conclusions, the beliefs, to which our judging has brought us."14 In his view, "[c]ensorship over our thinking, duress over our voting; [were] alike forbidden by the First Amendment. A legislative body ... which, in any way, practices such censorship or duress, stands in 'contempt' of the sovereign people of the United States."15 Meiklejohn's postulates about the government are equally applicable today to the Cambridge Analytica-Trump scheme and any other similar effort aiming at voter manipulation through information gatekeeping and ideological bombardment. No company, no politician, simply put, no one can decide for us what information, ideas, news, and facts we expose ourselves to and consider when deciding who we are going to vote for. View-point censorship or gatekeeping either by the government or a private party is anathema to our ability of self-government and therefore to Democracy itself because it restricts our freedom of belief. The right to decide what information, ideas, news, and facts we expose is ours, and ours alone. This right is absolute, unbridgeable and cannot be delegated. In order to protect our Democracy from the threats the internet poses to it, it is imperative that we stop acquiescing to the pervasive data extraction that takes place, not only in social media platforms such as Facebook, but also in our smartphones through surveillance capitalism and governmental surveillance. Only by protecting our privacy we can protect of freedom. 1 A.H. Ünver, Politics of Digital Surveillance, National Security and Privacy, Centre for Economics and Foreign Policy Studies, p. 2 (2018). 2 Id. 3 Id. 4 The New York Times, Cambridge Analytica and Facebook: The Scandal and the Fallout So Far (April 4, 2018). 5 See supra no. 1. 6 S. Zuboff, The Age of Surveillance Capitalism, Public Affairs, p. 2 (2020) ("Sur-veil-lance Cap-i-tal-ism, n. 1. A new economic order that claims human experience as free raw material for hidden commercial practices of extraction, prediction, and sales; 2. A parasitic economic logic in which the production of goods and services is subordinated to a new global architecture of behavioral modification; 3. A rogue mutation of capitalism marked by concentrations of wealth, knowledge, and power unprecedented in human history; 4. The foundational framework of a surveillance economy; economy; 5. As significant a threat to human nature in the twenty-first century as industrial capitalism was to the natural world in the nineteenth and twentieth; 6. The origin of a new instrumentarian power that asserts dominance over society and presents startling challenges to market democracy; 7. A movement that aims to impose a new collective order based on total certainty; 8. An expropriation of critical human rights that is best understood as a coup from above: an overthrow of the people's sovereignty."). 7 E. Snowden, Permanent Record, Henry Holt and Co., p. 176 (2019) ("The NSA's historic brief had been fundamentally altered from targeted collection of communications to bulk collection,; which is the agency's euphemism for mass surveillance."1;) 8 V. Blasi, Freedom of speech in the history of ideas: landmark cases, historic essays, and recent developments, p. 507-8, West Academic (2016) (hereinafter, "Blasi";) citing A. Meiklejohn, Free Speech and its Relation to Self-Government (1948). 9 Id. at 512. 10 See Blasi at supra no. 8, at 523 citing A. Meiklejohn, Testimony presented before the Subcommittee on Constitutional Rights, United States Senate Committee on the Judiciary (November 14, 1955). 11 See supra no. 9. 12 Id. 13 See supra no. 10, at 522. 14 Id. 15 Id.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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