Data, and its Discontents

The rising fever of liberal hysteria about the NSA Prism system leaks could benefit from the cooling hand upon the brow of the Great Liberal himself, John Stuart Mill.  For he is the source from which most modern liberal thought arises, and thinking is what is sorely missing now.  By coincidence, my first encounter with Mill’s writing, his Essay On Liberty, came in 1959, the centennial of its creation.  To my young eyes it seemed at that time a quaint fossil of the Victorian age. A principal target for Mill was the ancient idea that “error has no rights”; who could possibly think that anymore?  Mill also seemed almost Libertarian rather than Liberal in his insistence that government’s intervention in any person’s activity could be legitimate only to the extent the intervention prevented harm to others. 

In my youthful naiveté, I equated harm only with physical wounds, not yet realizing that, to Mill, harm was to the full person as they could be when provided the opportunity to reach the full breadth of their humanity.  Mill would have strongly rejected Libertarian doctrine as “a polite indifference to the lives of others.”  And Mill, like Socrates, held that we, as those who have benefited from the securing of our liberty provided through government, owe a debt of reciprocity to those around us that takes two forms.  First, we owe a debt to others to conform our actions to the needs of our government for securing the liberties we enjoy. Second, and here is where Mill differs most from Libertarians, we owe to society “a disinterested benevolence” in promoting  the betterment of the lives of our fellow citizens, as our own lives have benefited, “but not with the use of whips and scourges.”  (That, by the way, is why I credit Mill as much as B. F. Skinner and behavioral psychology with my preference for positive incentives in regulation rather than the traditional “whips and scourges.”)  And to Mill, when assessing legitimacy of action, government stretched beyond the usual bureaucratic operations we call government to the coercive behaviors of community majorities suppressing minority views in conflict with those of the majority.

Ten years later, I plunged feet first into a very contemporary struggle over the same issues.  I was one of several federal monitors of an information systems research project involving design of integrated municipal government computer systems.  Part of the effort involved design of police intelligence systems, and we feds were insisting that the systems include provisions for wiping out criminal allegations history when a person was not convicted of any crime.  In addition we insisted, successfully it turned out, on enactment of what became the first municipal ordinance protecting citizens’ rights to privacy.  To east coasters the issue seemed plain, but not to city officials in a small southwestern city (if you’ve seen Hud or The Last Picture Show, you’ve been there.) Their view was that retaining the data facilitated legitimate police work, and anyway, “if you’re not doing anything wrong, you have nothing to hide.”  It was a community attitude they were seeking to enforce, not some foreign tyranny..  My fellow monitors were sophisticated easterners, while I was not that long away from life in a town not that far from where the issue had arisen.  I felt both sides of it.  But I had to agree with Mill; keeping that data with no specific basis for believing harm would come to others by its deletion would be an unwarranted invasion of the personal rights of persons to control of their own information.

Person is an interesting word.  Probably originally from the Greek, it meant the mask worn by an actor in ancient drama, then became the role played by the actor, then evolved to the “social face” we greet the world with, and nowadays it seems to loosely mean a whole human being (or even a corporation?).  But the essence of it is that social face we present the world and seek to protect from manipulation by others.  Our “person” is the data we provide to the world about ourselves.  The whole concept of privacy implies that there are data of our lives we prefer to keep out of sight from those we do not know well so that our internal processes of choice are not inhibited by the intrusion of others, and it is that instinct that is at the root of our thirst for liberty.  But we still have that obligation to our society at large that Mill cites, to participate in maintaining the security of all by conforming our actions within reasonable bounds.  And that implies certain rights of government to examine our public actions.  Mill makes a sharp distinction between public and private spheres of action.  Public spheres are those in which our actions could cause harm to others or to society at large. Private spheres are those not likely to cause harm to others.  Our bedroom is a private sphere, our email a public one.  When we place a telephone call, the record that a call has been made, but not its content, is a public record.

So, the questions a modern Mill would ask might be, is the data obtained by Prism in the public or private sphere, and is it reasonably necessary to guard our liberty?  If private, the action of government is illegitimate.  If public and within the reasonable bounds of the trust we have placed in government to guard our liberty, then it is legitimate.  Indications so far are that the Prism system operates within those bounds.  What we know so far is that a careful distinction has been made between "business records" - that public sphere - and content records requiring a subpoena - the private sphere.  The system could be misused to threaten our liberty, but so could a tank or rocket launcher.  It is part of the responsibility we have entrusted to government to guard against such misuse.  But it is part of our responsibilities as citizens, and the debt we owe others, to participate in guarding our liberty by not refusing government a legitimate tool.