Privacy, Tech Policy, and Two Sorts of Libertarian
Every policy debate worth having has to ask what things like rights and freedom are for.
It’s difficult to say what we mean by privacy when we spend so much of our time now projecting our psyches by digital mediation—a kind of ecstatic or out-of-body mode of living, somehow both clothed and naked. Few people really like the idea of an only semi-anonymized pile of data zipping through tubes somewhere out in the ether, telling the machine who they are, what they want, and what they’ll buy. But we go online anyway. Of course, everyone thinks a person’s privacy should be respected when she is going through difficult circumstances, usually after the fact, when we already know all about it. But now we’re all that person. How do you assess the importance of things like privacy?
Or as the policy people over at American Compass ask in their latest collection, “What happens to personal data as the digital age deepens their quality, widens their availability, and creates new uses for them?” What is private in an age of algorithms? American Compass’s research director, Wells King, argues that the privacy questions around Big Tech demand we reflect on the intersection of the individual and society as a whole: “The issue is perhaps best understood as one of national preservation. Surrendering to corporate surveillance may very well be in an individual’s best interests, at least as measured in terms of hedonic utility,” but this very individualization endangers any meaningful collective, and the potential and actual behavioral modification it represents seems to supersede political deliberation. We are now all consumers first, and then consumed, and only then Americans.
King’s interlocutor on this question is Alec Stapp of the Progressive Policy Institute. Stapp demonstrates that even the loudest among us—perhaps especially those—are not in practice that concerned about our privacy. Again and again we give it away in exchange for what we want, and we seem to want to be advertised to, and have products made especially for us, in ways that demand the kind of constant surveillance our digital devices represent. A rising digital tide is lifting all boats, so to speak, or a data stream trickles down to benefit everybody. In his conclusion, Stapp argues that we should think of “privacy as an instrumental right—as something that helps us get more of what we want in terms of other values.” And that is, I think, suggestive.
What Stapp is gesturing at is the reality that there is a hierarchy to rights. To the degree we meaningfully participated or consented, Americans gave up privacy to the Patriot Act and NSA during the War on Terror because we decided a certain loss of liberty, in the form of privacy and free movement, was worth the trade for further security of life, these being two of the biggies on the American inalienable rights podium. But privacy, Stapp suggests, is also worth trading for convenience and tangible property and all the other things folded into the pursuit of happiness. There is a hierarchy here.
Rights really are instrumental. But this is because freedom itself is instrumental. Freedom is for something. It is not an end in itself. The Constitution’s Preamble makes this clearer but reflection on the Declaration will get you there too: The state is instrumental to the securing of the rights, duties, privileges, and conditions necessary for the commonwealth and good life. “Life, liberty, and the pursuit of happiness,” like history’s triumvirates, are not a static trio of equals; they condition each other. Liberty is not freedom full stop, but the condition of citizens in a good state.
When it comes to tech policy, then, we will remain at an impasse until our fundamental divides over political ends can be laid out and resolved. Part of the confusion is that the national freedom caucus or libertarian-leaning coalition that so loudly objected to the Patriot Act and similar security state antics in the past has broken apart faced with what are functionally DARPA projects turned into public utilities disguised as private companies. Based on the state of debate, the disguise is very good.
The folk libertarian—or pioneer American? Perhaps just call her the populist—worries that she might be prevented from living a good life by powers arranged against her; there are ends to which her freedom is aimed, such as a family and health and religious practice, and freedom is that which permits, supports, and protects them. As if by instinct she knows the regime, or the man, is more than badges, guns, and written laws—in a world of cybernetics, distributed command and control, the borders between official agencies, NGOs, and multinationals are as porous as the nation’s. Her fear of tyranny does not distinguish between public and private, government and business, and so the populist makes a virtue of what some would call ideological inconsistency, for she will happily try to use local and national, corporate and political power alike to counter whatever she sees as an attack on a life worth living.
Meanwhile, the elite libertarian of think tanks and industry astroturf, the ideological liberal—because she believes in freedom as an end in itself, and has made a binary distinction between the public and the private—sputters at the populist’s lack of principles. The free man is to this sort of libertarian what the monarch is to the monarchist. The libertarian believes in the free man as a matter of faith, seeks to emulate him in her pursuit of self-actualization, but she is not free, fulfilling fundamental human ends without regard for all the controls and influences that condition everyone else’s existence, and that is why she is a libertarian. In all her multiplication of choices, in all her deference to the supposed aggregate choices of others revealed by a supposedly free market (never free enough, however—epicycles abound), and her refusal to see power’s increasing indistinction, she condemns the common person, especially the populist, her folksy fellow “libertarian,” to be cut off more and more from the sort of freedom that leads to a life, public and private, worth living.
With concerns about domestic “extremism” expanding the War on Terror at home, the Biden administration seems set on giving us plenty of opportunities to get the old freedom-loving gang back together on the legal front. But Big Tech is a part of that machine, and American Compass’s Wells King is right: The more convenient they become for us as individuals, the threat the algorithms pose to our political life together will only grow.