Libertarian Dilemmas in the Corporate Surveillance State
posted by Frank Pasquale
My last post led me to an interesting partnership between government and corporations called “OnGuardOnline.” Devoted to stopping spam and phishing, that partnership sounds like a good idea to me. But when it comes to extending its influence from fraud-deterrence to IP enforcement and beyond, it raises some interesting questions for libertarians. I would think they want *both* to avoid an Orwellian surveillance state, and to promote corporations’ economic freedom. But what happens when the two things go hand-in-hand? Does surveillance by “private” corporations suddenly take on a sinister cast only when its been turned over to government?
For example, the ABA Journal reports that Microsoft is developing new software designed to help employers keep closer tabs on workers:
“Big Brother” software . . . will allow employers remotely to monitor their workers’ productivity, competence and physical well-being to a degree never before seen. Among other data, wireless sensors will provide employers with workers’ heart rates and stress level, and determine whether they are smiling or frowning, according to the London Times, which bases its article on a patent application filed by Microsoft.
It reminds me of a science fiction novel that envisioned email (maybe it was Snow Crash?), where every employee had to spend an “optimal” amount of time perusing missives from management: too fast indicated you weren’t paying enough attention, too slow and you were deemed lazy. Does such monitoring only become troubling when it’s handed over to a state actor?
Of course, most people can switch from one job to another if the monitoring gets to be too much; it’s much harder (and perhaps impossible) to switch governments. (I believe Rawls eloquently discusses this issue in Political Liberalism.) Carriers provide an interesting “middle case;” over 90% of people have zero, one, or two choices for internet access. If carriers effectively stipulate that all their data are to be shared with government, would that be enough for libertarians to deem them state actors? What about search engines?
I think one of Cory Doctorow’s characters was getting at this problem in the following bit of dialogue:
“My parents left East Germany in ‘65. They used to tell me about the Stasi. The secret police would put everything about you in your file, if you told an unpatriotic joke, whatever. Whether they meant it or not, what Google has created is no different.”
I don’t think any American company consciously aspires to such a role. However, we need to be aware that in the pervasively regulated industries of the critical information infrastructure, the line between state and market is often vanishingly thin. And it’s hard for me to imagine the type of deregulation that could solve that problem–particularly if the government is willing to pay money for the relevant data.
Thurman Arnold’s Folklore of Capitalism wryly observed inconsistent reactions to exactly the same action depending on whether it was carried out by private or public actors. One chapter “show[s] how taxation by industrial organizations is a pleasanter way of paying tribute than taxation by government.” The next discusses “the curious myth that permanent public improvements, conservation of resources, utilization of idle labor, and distribution of available goods are a burden on posterity if accomplished by an organization called ‘government’ which assumes public responsibility.” Will the same biases inform the public’s understanding of surveillance?
Photo Credit: Freiburg Surveillance Protest, hgn_rocket_science.
January 21, 2008 at 12:01 am
Posted in: Cyberlaw, Economic Analysis of Law, Privacy
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Joomla Components - January 20, 2008 at 11:37 pm
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