TECH VS. STATE – STALEMATE? (ACT 3)

From a foreign perspective the Fed’s calling of the ‘all writs act’ into game sounds like a governmental declaration of defeat. Especially when scrutinizing the cases when this weapon of last resort sould be used in “…. the absence of alternative remedies—the act is only applicable when other judicial tools are not available“. Are really all means exhausted? Or is this just a sequel of the last standoff between tech and state?

The forth and back goes on as anticipated, indeed quite entertaining. But the question is no more who blinks first, but who has the most supporters in state and civil society. The Feds did not answer the pivotal question about the alternative remedies, because until today they never were seriously challenged. Due to the rule of law, they are used to have the upper hand since 1776. But does this recipe still work in the 21st century?

A dynamic equilibrium always needs to be adjusted, permanently. This is valid for all societies, predominantly democracies. The 21st century seems to become the century of the civil society and the citizens are the heroes of history, of their own history. Sorry government, today the balance leans more in the direction of the citizens.

Though it looks like a stalemate, an argument without winners, the show is not over yet. As in a movie drama, the participants must show muscles, determination, grim faces to convince us, the audience, how seriously they are about their position. Some participants in the political circus yet demand for a compromise. But there is no compromise needed, just a joint will to solve the task collaboratively. The tech community is savvy enough to develop sophisticated tools to give the governmental agencies means to do their job adequately while preserving privacy as well. 

BIG DATA, BLESSING OR CURSE?

1. Americans are unhappy with sharing data.  

A new study (Annenberg School for Communication at the University of Pennsylvania) indicates 70 percent of Americans are discontent with the social media trade sale: ‘I give you my services for free; in exchange you give me your private data for free”. 
Source: NYTimes: Sharing Data, but Not Happily

2. Big Data, benefits and malpractice’
Big data’ are pivotal to evolve civilisation, if used to enhance longevity, fight poverty, ease everyday life, develop automated solutions (robots) of once burdensome work.  
’Big data’ can be misused for purposes which are not in the individual’s and civil society’s best interest.  

For conceptual clarification: 
”Big data refers to the large amounts of information that has become accessible thanks to services like the Internet. Big Data is useful only if its information content is evaluated for accuracy, relevance, and timeliness. What used to be called knowledge based enterprises are designed to transform unevaluated information (raw data) into information whose accuracy and authenticity are verified (knowledge). It is still a matter of manipulating information to make it usable.“ 
(Citation Richard Wright).

3. Two complementary roles of the individual 


The individuals are the mines 
Private data embody the individual’s experiences, behavior, customs, wishes, dreams, anticipation of their future lives. They are valuable from the start and evolve with every action of the individual, adjust fluently and change continuously over time. Therefore these individual’s data are not just ’raw’, they should be evaluated as preprocessed. 

The individuals are the audience 
The processing of raw and preprocessed data to useful data for science, research & development, predictable marketing etc. are driven by an anticipated outcome to improve civilization. Among others, they are focused at the individuals as market participants to buy new products, services.
Therefore individuals are both, subjects and objects of mining and processing their private data.
4. Why privacy and the use of individual data matter to individuality


Individuals are the indisputable owners of their private data. 

Currently, as originator and owners, individuals have no or only limited influence how these data will be used, if for their benefit or for their harm. Individuals have figuratively no influence if their private data become a blessing or a curse for themselves, the civil society, mankind in general. 
Individuals have no influence of the use of their data in media, social media, politics, info processing (banking, insurance), dissemination (telephone, broadcasting), Internet of things, marketing, research & development for new or improved products and services. 

Consequences to be considered from the angle of the individual: 

Responsibility  
The double role as subjects and objects, originator and beneficiaries requires a specific responsibility of individuals in respect of the use of their private data, which may have effects on others too. 

Control 
As the Annenberg study shows, the majority of individuals is “not happy“ with the uncontrollable use of their data. This might improve with enhanced privacy rules, but seems not to be enough. Individuals should decide themselves, if when and how their data are to be used or not to be used for data mining. The retroactivity of processed data on the individuals themselves, the influence on their individuality, is an issue to be monitored and analyzed over time. 

The free deliberate development of individuality is compromised if individuals cannot control their own lives to the full possible extent, i. e. here the use of their private data.

PROPOSAL FOR A VIABLE ALTERNATIVE TO THE “RIGHT TO BE FORGOTTEN”

A Danish lawyer goes to Paris to sue Google about a defamation issue. This sounds like a lot of juridical tourism to come. Not being satisfied with the verdict in one country, plaintiffs go to another country to try their luck again. As long as they have enough resources which means, „the right to be forgotten“ is a costly issue, suitable only to accordingly financed people.

But the issue goes deeper, is more worrisome. The “right to be forgotten” stands diametrical contrary to the achievements of the enlightenment. It pulls issues back into the dark of forgetting and becoming forgotten. Generations of historians had had a hard job to bring issues from the dark of being forgotten into the light of being known and becoming investigated.
There is a dangerous trait to manipulate history. Pharaohs withdrew the names of their predecessors from statues and shrines to make them forgotten. Recall the Auschwitz crimes and the enormous attempts in post-war Germany to make them forgotten. Which challenged the other side, to make them scrutinized in the light of science, it became the most investigated issue in history.
The right to be forgotten could evolve to a right to suppress unpleasant information. Political and other participants of all sort can sue to suppress knowledge, facts on the ground of defamation or false description.
People who were wronged by others will feel no real relief by this questionable right, because the issues can come back any time in a different robe. There is no guarantee for forgetting. When the issues revive, maybe one or two generations later, they cannot defend themselves anymore. Who takes then care of their reputation?
What could be an alternative?

1. Clarifying instead of suppressing
Because there will not be such a thing as a united view on a diverse discussed issue, it is more helpful to document all sides and angles to make them accessible. Completing perpetually the informations Instead of suppressing special views, on the ground of a diversity of incompatible juridical systems.

2. The right to be clarified  
Everyone should have the right to tell and publish his own story in case of discordance with a description of an issue. Often a story evolves over years, which should be documented and added to the issue, instead of being suppressed. Slanderer are quickly unmasked and become object of scrutiny themselves. In case of defamation those, whose name is clarified, can sleep better as always fearing a second attack on their reputation.

3. The impossibility of regional, national regulation 
The demand to delete an information globally, based on a local juridical decision is not feasible. Every other national or even regional judiciary can ignore the verdict and demand a re-installation of the information. The unfolding chaos of contradictory verdicts is conceivable.

4. Regulation by the global civil community
The decision to regulate an information on the global level should be settled by a global institution. An institution installed by the global civil community, not by the states or supra state organizations like the UN, which depend on the benevolence of national governments. The global civil society is maturing only by experiencing her own responsibility. The Internet is the best learning field imaginable.

TECH VS. STATE – IT’S GETTING NAUGHTY (ACT 2) 

As predictable the different positions harden, the matadors dig their feet into the ground. The Obama administration sides very clearly with the FBI, questioning the demands of the civil society. Apple, as leader of the tech pack, defends its rights with both tooth and nail against the claims of the administration.

But the standoff is less entertaining as it sounds. It reflects the ongoing tries to balance the rights of the civil society for privacy with the needs of the state to fulfil its purpose. About 50 years ago, the question would have been decided very easily in favour of the governmental claims. The stance of the tech companies reflects an evolution in the understanding of privacy. In this meanwhile fierce fight, the pendulum currently leans more to the civil society, backed by the customers of the techies which as citizens are not comfortable with the current situation. The latest exchange of naughty arguments was about the FBI”s assertions, Apple would measure differently while giving China access to iPhone data. This assertion was countered by the iPhone producer, it had agreed to store date from its Chinese customers on Chinese soil, but “never made user data, whether stored on the iPhone or in iCloud, more technologically accessible to any country’s government”.

All this sounds like a grudge match and misses the point: What is the best solution possible to meet both justified demands? A new dynamic equilibrium has to be figured out. This is not the task of some lonely decisions by courts and will take discourses, studies and last not least, new technologies which can fulfil both claims: the government’s requirements to do its job and the civil society’s demands for privacy.