Many of the civil rights that we today claim to be “natural” or “fundamental” have their roots in an ideology of the individual which dates back to the 18th century. The importance of a free press, free speech, democracy and the fundamentals of integrity can be traced back to the enlightenment period which believed that all were created equal and that people – not systems – were valuable and important enough to be in control.
Since then these ideologies have been slowly been implemented into law. Not uniformly nor quickly but still the ongoing process of bringing implemented, real civil rights has been measurable. But lets not get carried away. One thing lacking in our (for example) right to expression has been our ability to express ourselves to a wider audience. Sure we have the right to do so – but do we have the ability to do so?
The fact that not everyone could speak was seen as unfortunate but inevitable and this scarcity created a marketplace of ideas. Well, in reality, it created a marketplace of platforms from which to speak from. If you fit the profile of the platform you may (still if you are lucky) exercise your right to speak to a larger audience.
In this way many of our rights are strongly linked to the platforms which give us the ability to carry out these rights. And what are the Internet, the Web & Web2.0? They are a form of easily accessible platforms. The barriers to entry to these platforms are widely reduced (compared with old or traditional media). With the lowering of barriers to entry millions (?) of people have been exercising rights which have previously only been theoretical.
Unfortunately this does not suit everyone. What we have seen is that with the removal or reduction of technical or economic barriers to entry the law is often being used to create an artificial barrier to reduce or minimize the impact of our rights.
Now the interesting thing is that no politician today would dare to challenge the enlightenment ideal. No politician today can openly say that they want to reduce our fundamental freedoms even if they are tempted to. What happens instead is the interesting removal of rights by creating levels of control in our communications intermediaries. What this means is that instead of telling people that they will reduce their rights governments are applying burdens of surveillance and control on the companies that provide our infrastructure.
And what can we do? Well not much really. Most of our infrastructure use is voluntary. If we want to use the net we are forced to play along with the conditions of the companies that provide the net to us.
A recent example of this process (one of many) reported by Wired is that the Obama administration is urging Congress not to adopt legislation that would impose constitutional safeguards on Americans’ e-mail stored in the cloud.
As the law stands now, the authorities may obtain cloud e-mail without a warrant if it is older than 180 days, thanks to the Electronic Communications Privacy Act adopted in 1986. At that time, e-mail left on a third-party server for six months was considered to be abandoned, and thus enjoyed less privacy protection. However, the law demands warrants for the authorities to seize e-mail from a person’s hard drive.
A coalition of internet service providers and other groups, known as Digital Due Process, has lobbied for an update to the law to treat both cloud- and home-stored e-mail the same, and thus require a probable-cause warrant for access. The Senate Judiciary Committee held a hearing on that topic Tuesday.
The companies — including Google, AOL and AT&T — maintain that the law should be changed to reflect that consumers increasingly access their e-mail on servers, instead of downloading it to their hard drives, as a matter of course.
But the Obama administration testified that imposing constitutional safeguards on e-mail stored in the cloud would be an unnecessary burden on the government. Probable-cause warrants would only get in the government’s way.
The process is an excellent example of the cynical application of power. On the face of it government still maintains its support for rights, while in reality slashing the practical application of rights at the point of the technology upon which the rights stand.