Transcending utility through negative rights

-- By SolomonRotstein - 21 Apr 2016

I. Introduction: “Poca política, mucha administración” – Porfirio Diaz

When political choices are recast, discursively, as rationalized technocratic, economic or administrative outcomes, civil liberties suffer. Legal academia, particularly the “formulas,” “boxes,” and “theorems” near and dear to the law and economics movement, has been complicit in this erasure by reimagining the common law legal system as a mechanism for enforcing behavior in line with classical economics’ normative positions on social utility. The movement towards the ostensible objective empiricism of big data, best exemplified by Michael Bloomberg’s possibly cribbed quote “in god we trust, everyone else must bring data,” is simply the natural extension of this process.

Privacy advocates must remain vigilant regarding the expansion of this “data-driven” administrative and regulatory state, which will occur in the contested terrain of the “penumbra,” the shadow zone existing between our enumerated rights, the government’s enumerated powers, and the rights "retained by the people” pursuant to the 9th amendment, including, most importantly, the right to privacy. As noted above, the representation of this expansion as merely appurtenant to technological change, and therefore objective and natural, heightens the need for scrutiny, if not outright resistance. Such resistance can operate well enough within the utilitarian paradigm, but should also strive to transcend the utilitarian narrative by appealing to core, non-negotiable constitutional principles.

II. Private-ization

As Apple’s litigation and public relations battle with the United State Department of Justice makes clear, private industry, which for the moment controls the majority of the physical (mobile devices and laptops) and intangible (social media platforms, cloud based data storage) infrastructure from which data can be mined, responds to a different set of incentives than does the government. For the moment, at least, market dynamics (aided by hardcore corporate data mining) have aligned corporate profitability with responsiveness to consumers’ concerns over data protection. Apple’s competitors quickly announced their own privacy initiatives: Whatsapp introduced end to end encryption of all messages and phone calls, Microsoft sued the Justice Department over secret searches, and even Google unrolled a half-hearted, or assed, encryption mechanism for Gmail. When Mark Zuckerburg and Jack Dorsey, who likely know more about technology users’ values than anyone, publicly endorsed Apple’s position, privacy hawks may be justified in concluding that Edward Snowden’s chickens have finally come home to roost in the broader consumer consciousness.

Before we get too excited, it should be noted that the Apple controversy, while a tentative step in the right direction, also demonstrates the lack of sophistication on the part of technology consumers. Individual devices, regardless of whether the government can ultimately force Apple hand or will have to rely on third party hackers, remain squarely within the realm of “retail” government intrusion against which the Fourth Amendment is relatively well-positioned to protect. The extensive focus on the sanctity of individual physical devices serves the interests of private industry and the government, while harming those of committed privacy advocates, by deflecting public scrutiny from cloud storage and social media platforms, which are susceptible to “wholesale” searches and exist beyond the Fourth Amendment’s persons/places/effects trifecta.

III. From utility to negative rights retained

Civil liberties, of course, require subordinating social utility to personal freedom. This subordination is only possible once we divorce ourselves from the idea that social utility is some sort of objective good, whether that idea is expressed as Diaz’s formulation, neoliberalism, law and economics, or big data. Fortunately, for Americans, the constitution exists as a barrier against this sort of utilitarian slippage, at least with regard to certain highly visible enumerated rights. Rights "retained by the people,” the disparagement of which the 9th amendment specifically prohibits, have historically not enjoyed the same degree of absolutist protection as the enumerated rights, even though nothing in the constitution relegates them to second-class status. Simply “finding” the right in the first place is hard enough, and it is only after finding a right that Justice William Brennan’s one-way ratchet can, under the 9th amendment’s weak form, operate to insulate that right from future disparagement. When construed as a positive right privacy’s contours remain elusive. A better strategy may be to view privacy as a negative right. Under this latter formulation, many of the privacy rights at stake today are not novel; rather, they have existed uninterrupted since 1791. Americans have always retained the right to “walk stroll or loaf” without government surveillance of their movements, regardless of their Androids and iPhones are transmitting location data. This proposition would not have been controversial in the founding era and should not be today. Americans have similarly retained the right to not be identified by way of a “robust social graph.” No one in the thirteen colonies would have disputed this right, and, therefore, regardless of whether the constitution is a living document, the people retain this right today. In this regard, privacy rights should have less of an uphill climb than abortion rights did a half century ago. Unlike the plaintiffs in those cases, who sought constitutional protection for a socially controversial and relatively novel medical procedure, here Justice Brennan’s one-way ratchet was turned, with no controversy whatsoever, two centuries ago.

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