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Monday, May 02, 2016


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Chanson de Roland

First, let me thank the Editor for referring us to this vitally important report from the Guardian that alerts us to this clear and present danger to our privacy, our liberty, and our democracy from surveillance capitalism. Though I am familiar with these dangers and have warned of them for years and advocated for strong regulatory, statutory, and legal precedents from our courts to prohibit pervasive surveillance capitalism, the Guardian's report sounds a voice and an alarm that is much louder and more effective than my small voice. And some of the resources and references cited by Guardian's report are new to me, and so I thank the Editor for bringing this report.

The dystopia of ubiquitous or at least pervasive surveillance has been treated before in movies and literature, with George Orwell's, a.k.a., Eric Blair's, 1984 being among the seminal works. If I recall, the Editor posted a blog listing his own movies treating the surveillance state, which also invited his readers to add to that list. But one thing that is common to nearly all of those works is that the totalitarian threat came from the state. And while that danger is real and is clear and present, as is evidenced by Edward Snowden's revelations and by governments' persistent efforts to compromise the security of all of our computing devices by every available means, from technical to legal, it is accompanied by the equally great danger of surveillance capitalism, which, if anything, is more pervasive and sinister and is even more dangerous to our liberty, privacy, and democracy than the state's surveillance, and it is more dangerous because it is nearly ubiquitous in its scope, more comprehensive in the personal data that it collects from each of us, and because everything held by a private party, such as Google, Microsoft, or Facebook, can be reached by the state through its legal process, in states where law matters, or by sheer coercive force, where law does not matter, which makes the ubiquitous surveillance of surveillance capitalism coextensive with the surveillance of the surveillance state. Thus, the surveillance state and surveillance capitalism merge into one unified totalitarian sovereignty with unfettered dictatorial power to oppress and control us.

And not surprisingly, in capitalist states, this despotism of ubiquitous surveillance arises most powerfully, not from a totalitarian, despotic state that seeks to reduce its citizens to a slavery that servers only the state and its elites, but from the greed of unfettered and lawless capitalism, which nonetheless will result in the same evils, but with the advantage of one‘ refrigerator ordering one’s groceries. And so it is, the epitome of capitalism, the United States, has given rise to surveillance capitalism and has essentially ignored, if not blessed, the rise and enhancement of ubiquitous surveillance capitalism.

In the U.S., having been abandoned by our government and by our courts in protecting us against surveillance capitalism, what are we to do? Of course, petition our government to deal with this danger, before it grows any worse, with effective laws and regulations that prohibit surveillance capitalism without the informed consent of the person being surveilled and that by law prohibits surveillance capitalism, except in the rare circumstances where such surveillance would be harmless to our privacy, security, and liberty.

And we can boycott, the firms that engage in surveillance capitalism. Quite frankly, is Google or Facebook or Amazon or any of their ilk in any way important to our lives? Google can be well and easily replaced by DuckDuckGo, which doesn't track you or collect data on your searches; instead of Amazon, take your custom to your local stores, which is better for your local economy and where there are real people, who usually offer good service and who, in any event, are answerable to you face-to-face, and Facebook is easily and better replaced by face-to-face meeting where possible or by incredibly cheap VOIP phone calls and email, where meeting in person isn't possible. In these and other ways, each of us can act to destroy surveillance capitalism and thus, not only stop surveillance capitalism, but also hinder the rise of the surveillance state.

And finally, the state, especially in its courts, can acknowledge that the property rights in all of our personal data properly and as a matter of law belong to each of us and not the likes of Google, Facebook, Microsoft, Amazon, and their ilk. Our acts on the Internet and other networks are our expressions, which we author with the acts of our lives on those networks, and, as such, they are our copyrighted works the moment that they are reduced to computer memory or to any other tangible and readable form. Removing the property rights in our personal data from captains of surveillance capitalism, who have wrongfully expropriated them, and returning those property rights in their personal data to their rightful owners, that is, to each person, whose data it is, is what any just regime of intellectual property law requires and would do much to curb both surveillance capitalism and the surveillance state, because the U.S. Constitution, the common law, statute, and other laws, foreign and domestic, provides powerful protections and rights for the owner of property and for author of expressions.

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