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In Search Of A Grand Unified Theory Of Free Expression And Privacy

Privacy

from the time-for-a-gut-check dept

Wed, May 27th 2020 1:00pm — Mike Godwin

Every time I ask anyone associated with Facebook’s new Oversight Board whether the nominally independent, separately endowed tribunal is going address misuse of private information, I get the same answer—that’s not the Board’s job. This means that the Oversight Board, in addition to having such an on-the-nose proper name, falls short in a more important way—its architects imagined that content issues can be tackled substantively without addressing privacy issues. Yet surely the recent scandals that have plagued Facebook and some other tech companies in recent years have shown us that private information issues and harmful-content problems have become intimately connected.

We can’t turn a blind eye to this connection anymore. We need the companies, and the governments of the world, and the communities of users, and the technologists, and the advocates, to unite behind a framework that emphasizes the deeper-than-ever connection between privacy problems and free-speech problems.

What we need most now, as we grapple more fiercely with the public-policy questions arising from digital tools and internet platforms, is a unified field theory—or, more properly—a “Grand Unified Theory” (a.k.a. “GUT”)—of free expression and privacy.

But the road to that theory is going to be hard. From the beginning three decades ago when digital civil-liberties emerged as a distinct set of issues that needed public-policy attention, the relationship between freedom of expression and personal privacy in the digital world has been a bit strained. Even the name of the first big conference to bring all the policy people, technologists, government officials, hackers, and computer cops reflected the tension. The first Computers, Freedom and Privacy conference was held in Burlingame California, in 1991, made sure that attendees knew that “Privacy” was not just a kind of “Freedom” but its own thing that deserved its own special attention.

The tensions emerged early on. It seemed self-evident to most of us back then that the relationship between freedom of expression (and freedom of assembly and freedom of inquiry) had to have some limits—including limits on what any of us could do with the private information about other people. But while it’s conceptually easy to define in fairly clear terms what counts as “freedom of expression,” the consensus about what counts as a privacy interest is murkier. Because I started out as a free-speech guy, I liked the law-school-endorsed framework of “privacy torts,” which carved out some fairly narrow privacy exceptions to the broad guarantees of expressive freedom. That “privacy torts” setup meant that, at least when we talked about “invasion of privacy,” I could say what counted as such an invasion and what didn’t. Privacy in the American system was narrow and easy to grasp.

But this wasn’t the universal view in the 1990s, and it’s certainly not the universal view in 2020. In the developed world, including the developed democracies of the European Union, the balance between privacy and free expression has been struck in a different way. The presumptions in the EU favor greater protection of personal information (and related interests like reputation) and somewhat less protection of what freedom of expression. Sure, the international human-rights source texts like the Universal Declaration of Human Rights (in Article 19) may protect “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.” But ranked above those informational rights (in both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights) is the protection of private information, correspondence, “honor,” and reputation. This difference balance is reflected in European rules like the General Data Protection Regulation.

The emerging international balance, driven by the GDPR, has created new tensions between freedom of expression and what we loosely call “privacy.” (I use quotation marks because the GDPR regulates not just the use of private information but also the use of “personal” information that may not be private—like old newspaper reports of government actions to recover social-security debts. This was the issue in the leading “right to be forgotten” case prior to the GDPR.) Standing by themselves, the emerging international consensus doesn’t provide clear rules for resolving those tensions.

Don’t get me wrong: I think the idea of using international human rights instruments as guidance for content approaches on social-media platforms has its virtues. The advantage is that in international forums and tribunals it gives the companies as strong a defense as one might wish in the international environment for allowing some (presumptively protected) speech to stay up in the face of criticism and removing some (arguably illegal) speech. The disadvantages are harder to grapple with. Countries will differ on what kind of speech is protected, but the internet does not quite honor borders the way some governments would like. (Thailand's lèse-majesté is a good example.) In addition, some social-media platforms may want to create environments that are more civil, or child-friendly, or whatever, which will entail more content-moderation choices and policies than human-rights frameworks would normally allow. Do we want to say that Facebook or Google *can't* do this? That Twitter should simply be forbidden to tag a presidential tweet as “unsubstantiated”? Some governments and other stakeholders would disapprove.

If a human-rights framework doesn’t resolve the free-speech/privacy tensions, what could? Ultimately, I believe that the best remedial frameworks will involve multistakeholderism, but I think they also need to begin with a shared (consensus) ethical framework. I present the argument in condensed form here: "It’s Time to Reframe Our Relationship With Facebook.” (I also published a book last year that presents this argument in greater depth.)

Can a code of ethics be a GUT of free speech and privacy? I don’t think it can, but I do think it can be the seed of one. But it has to be bigger than a single company’s initiative—which more or less is the best we can reasonably hope Facebook’s Oversight Board (assuming it sets out ethical principles as a product of its work on content cases) will ever be. I try not to be cynical about Facebook, which has plenty of people working on these issues who genuinely mean well, and who are willing to forgo short-term profits to put better rules in place. While it's true at some sufficiently high level that the companies privilege profits over public interest, the fact is that once a company is market-dominant (as Facebook is), it may well trade off short-term profits as part of a grand bargain with governments and regulators. Facebook is rich enough to absorb the costs of compliance with whatever regimes the democratic governments come up with. (A more cynical read of Zuckerberg's public writings in the aftermath of the company’s various public writings, is that he wants the governments to get the rules in place, and then FB will comply, as it can afford to do better than most other companies, and then FB's compliance will be a defense against subsequent criticism.)

But the main reason I think reform has to come in part at the industry level rather than at the company level, is that company-level reforms, even if well-intended, tend to instantiate a public-policy version of Wittgenstein's "private language" problem. Put simply, if the ethical rules are internal to a company, the company can always change them. If they're external to a company, then there's a shared ethical framework we can use to criticize a company that transgresses the standards.

But we can’t stop at the industry level either—we need governments and users and other stakeholders to be able to step in and say to the tech industries that, hey, your industry-wide standards are still insufficient. You know that industry standards are more likely to be adequate and comprehensive when they’re buttressed both by public approval and by law. That’s what happened with medical ethics and legal ethics—the frameworks were crafted by the professions but then recognized as codes that deserve to be integrated into our legal system. There’s an international consensus that doctors have duties to patients (“First, do no harm”) and that lawyers and other professions have “fiduciary duties” to their clients. I outline how fiduciary approaches might address Big Tech’s consumer-trust problems in a series of Techdirt articles that begins here.

The “fiduciary” code-of-ethics approach to free-speech and privacy problems for Big Tech is the only way I see of harmonizing digital privacy and free-speech interests in a way that will leave most stakeholders satisfied (as most stakeholders are now satisfied with medical-ethics frameworks and with lawyers’ obligations to protect and serve their clients). Because lawyers and doctors are generally obligated to tell their clients the truth (or, if for some reason they can’t, end the relationship and refer the clients to other practitioners), and because they’re also obligated to “do no harm” (e.g., by allowing companies to use personal information in a manipulative way or to violate clients’ privacy or autonomy), these professions already have a Grand Unified Theory that protects both speech and privacy in the context of clients relationships with practitioners.

Big Tech has a better shot at resolving the contradictory demands on its speech and privacy practices if it aspires to do the same, and if it embraces an industry-wide code of ethics that is acceptable to users (who deserve client protections even if they’re not paying for the services in question). Ultimately, if the ethics code is backed by legislators and written into the law, you have something much closer to a Grand Unified Theory that harmonizes privacy, autonomy, and freedom of expression.

I’m a big booster of this GUT, and I’ve been making versions of this argument before now. (Please don’t call it “Godwin-Unified Theory”—having one “law” named after me is enough.) But here in 2020 we need to do more than argue about this approach—we need to convene and begin to hammer out a consensus about a systematic, harmonized approach that protects human needs for freedom of expression, for privacy, and for autonomy that’s reasonably free of psychological-warfare tactics of informational manipulation. The issue is not just false content, and it’s not just personal information—open societies have to incorporate a fairly high degree of tolerance for unintentionally false expression and for non-malicious or non-manipulative disclosure or use of personal information. But an open society also needs to promote supporting an ecosystem—a public sphere of discourse—in which neither the manipulative crafting of deceptive and destructive content nor the manipulative targeting of it based on our personal data is the norm. That’s an ecosystem that will require commitment from all stakeholders to build—a GUT based not on gut instincts but on critical rationalism, colloquy, and consensus.

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Filed Under: data protection, facebook oversight board, fiduciary duty, free speech, grand unified theory, greenhouse, multi-stakeholder, oversight board, privacy

10 Comments

Greenhouse Panel Discussion

How do you enforce?

by Mike Masnick, on 27 May 2020 @ 2:18pm

Mike, thanks for kicking off the topic in such grand fashion. It has bothered me for quite some time how the "privacy" and the "free expression" worlds don't seem to talk very much. Even worse is how they often seem to not even truly understand the world the other inhabits. This leads to messes like how the "right to be forgotten" is handled, in which the focus is on the privacy side, with little thought to how it might impact free expression.

My larger question, though, is about the "fiduciary" concept that you suggest here (and have written about in the past). How would that be enforced in any reasonable manner? The examples you give -- lawyers and doctors -- both involve licensing boards, who often end up doing most of the enforcement. I would worry about how that kind of model would apply to internet platforms. And, of course, without that, you might end up with government enforcement of such "fiduciary" duties, and that runs the risk of regulatory capture, favoritism, and other issues.

So, while I find the idea of a fiduciary duty appealing as a high level concept, every time I try to mentally work through the details, I run into lots of large roadblocks or (worse) things that would stifle smaller internet startups or individuals creating their own websites. I'm wondering if you have any thoughts on how to best deal with those issues?
Good question, Mike

by Mike Godwin, on 27 May 2020 @ 4:06pm

There are two pieces of your question, so I'll handle them one at a time.

(1) Licensing boards. We don't want there to be licensing boards for tech companies or tech professionals--requiring that would be the opposite of what Adam Thierer calls "permissionless innovation." But there's no reason to think that licensing boards are even required for professional ethics codes (that include fiduciary obligations) to have teeth. The Society of Professional Journalists has an ethics code, even though you don't have to be licensed to be a journalist--what that code does, even in the absence of licensure, is created a shared consensus expectation of what journalists must do if they are to be considered ethical. (And a journalist who freely violates ethics codes and gets sued for, say, libel is going to have a much weaker defense if he or she was super-casual or super-sloppy about ethics.)

2) How can ethics and fiduciary duties be enforced? Well, at the initial level, if there's an industry-wide ethics framework, then that--like the SPJ ethics code--creates a common language that enables the industry as a whole to judge the ethics-transgressor as unethical. There are real business consequences for most companies to be demonstrably unethical, even if they're not sued or prosecuted over it. At a later level, the standards of car, of loyalty, and of confidentiality that are components of fiduciary duties can be locked into law by legislatures that want to reinforce the protections of Big Tech's clients and customers. And at a still later level, the companies adherence to fiduciary obligations may put them in a position to actual advocate (in courts, in Congress, or wherever) as representatives of user interests, because they have to defend user interests. So it's an evolutionary process, but there's a lot of useful guiding precedent out there in other professions.
Good point, but leaves open questions

by Mike Masnick, on 27 May 2020 @ 5:04pm

Mike, it's a great point that not every fiduciary duty setup requires a licensing board (and I agree that in tech it would be a disaster if there was one). However, I do wonder about the SPJ ethics code example for a variety of reasons.

First, there are many, many, journalists and journalism organizations who do not follow the SPJ ethics code. The SPJ itself states that the code "is not a set of rules, rather a guide that encourages all who engage in journalism to take responsibility." It also states: "It is not, nor can it be under the First Amendment, legally enforceable."

So that brings us back around to the enforcement question. If it's just a non-binding set of guidelines and encouragement, then it's not quite a fiduciary responsibility, and many, many people will point out that lots of companies would easily and quickly (and without remorse) ignore those guidelines.

Frankly, I think it's good that some journalism outfits don't exactly follow the SPJ ethics guidelines, because it leads to experimentation and innovation in journalism -- though I do think it's important for people to understand those guidelines, and if they're going against them to do them for a good reason. But I fear that any such approach is unlikely to appease those who feel that companies don't do much to respect privacy -- and it will only lead to more calls for a heavy handed regulatory approach that brings us right back to the conflict between free expression and privacy.
SPJ's ethical rules

by Mike Godwin, on 30 May 2020 @ 5:58am

You're correct that SPJ's ethical rules are not enforced by law in the way that medical and legal ethical codes are. But, as I've said, the ethical codes even in the absence of being straightforwardly backed by statutory law, still can create a common language and common understanding of ethical expectations. For example, we know that reporters have ethical obligations to their sources (don't misrepresent them, don't breach their anonymity if they conditioned their disclosures to you on your protecting them, and so on). And, yes, many journalists break those rules. (And here I note that many doctors and lawyers break their ethical rules--which have a lot more teeth to them--as well.) But for a journalist, credibility depends on sticking to the ethics, plus, as I noted, a journalist with a bad track record on ethics, even in unrelated matters, may find he or she has a tough day in court when it's the journalist's testimony against the plaintiff's. The main point here, though, is that ethical codes have to be bigger than one practitioner--or one company--in order to have the kind of social force it requires to promote ethics and to build trust. Do that bit right, and individual ethical breaches aren't universally prevented, but they are more easily recognized and called out.

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Pixelation, 27 May 2020 @ 2:04pm

Nice to see you speak to the gravity of the situation...
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Anonymous Coward, 27 May 2020 @ 2:59pm

If they manage to make one human right guarantee in the UDHR or any similar resolution or international law validly enforced to anyone in my area in my lifetime I'll be surprised
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Anonymous Anonymous Coward (profile), 27 May 2020 @ 4:17pm

Privacy
I see privacy as a multi-threaded thing. If the lookers can identify me, as in my name, address, phone number, bank accounts, employment, social security number (which shouldn't be a problem, but is) current location, and probably a few more things, then I have a problem.

If, however, the lookers are cataloging my interests and viewing habits (when I let them, private browsing should not be accessible) and use that information to target ads at me (that I will never look at) then I find it less problematic. Where it becomes a problem is when the former is conflated with the latter by whatever methodology, then there is no difference.

If things can be kept to the latter without the conflation to the former then the difference between privacy and private becomes less important.

So far as the privacy vs free expression conundrum is concerned, there was a time when one went to the public square and expounded on their point of view. In those instances, the speaker was in no way private, and was in fact freely expressing themselves. The difference today is that when one speaks in the 'public square' so to speak, they aren't in the village square, the tend to be on the Internet (leaving the are platforms public squares argument for another time), and have many, many, many more listeners. Which also means many, many, many more potential detractors. Herein lies the problems.

The first problem is that of the mob. Please see this Simple Justice article and comments about mob justice. If the mob thinks it has things right then the speaker is taken down, and usually without remorse or for that matter actual understanding, or correctness.

The second problem comes from trolls. Techdirt had a recent article go to 349 comments (as of this writing) many of which were from a troll (aka provocateur) who kept making claims, claimed to have proof, but never pointed to the proof, and managed to take a subject entirely off course, and despite the don't feed the trolls mantra sucked many people (including me) into their subterfuge. A single troll can be as destructive as a mob in some cases and just as deleterious, and as in the case above, not actually have anything to say.

So when someone makes statements, the proverbial free expression, on the Internet and use their real name they have to be prepared for the fallout. Not everyone is. While I use an 'identifying handle' on this website, no one knows my real name (well, Mike does as he gets my payments, but he wouldn't if I didn't trust him) and since I don't consider myself to be in the position (fiscally) of taking on detractors who might want to SLAPP me for whatever reason, I maintain my privacy, even though anyone can find my speech in my profile and can respond to my posts. The point is free expression can have consequences, and if done without privacy being compromised, less dangerous.

On the other hand, our politicians have free expression, and give up their privacy so that they may achieve public office (aka power positions), the problem there being the veracity of their free expression. Office seekers tend to lie to voters in order to get elected, and then continue to lie to constituents in order to maintain their power. In these cases, the 'free' expression isn't actually free, though our 1st Amendment and Citizens United tell us they (and their supporters) have every right to do so, that 'free expression' is not without serious consequences. I am however unsure how to rectify that situation without creating some kind of Constitutional double standard, which in the case of lying politicians I wouldn't necessarily mind.
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Wendy Cockcroft (profile), 28 May 2020 @ 9:28am

What about doxxing?
This is a real problem with real consequences. When we talk about privacy we're going to have to talk about the data people often carelessly leave online or is discovered and then used for nefarious purposes. Privacy and free speech intersect here.
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NaBUru38 (profile), 28 May 2020 @ 5:58pm

We saw the case where Google was told by France and Canadato censor and not censor search results simultaneously. Likewise, we wouldnt like Russia or Saudi Arabia to tell companies to censor gay parades or political dissenters worldwide.

The internet is worldwide, but laws are territorial. International treaties could be an option, but as already said, authoritarian countries are well represented in the United Nations. On the other hand, multistakeholder organizations usually have an overrepresentation of corporations.

The European Union's GDPR has good points and bad points. It certainly has the power of law. It certainly protects privacy, even of politicians who should be transparent.
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Oldand (profile), 18 Jun 2020 @ 3:32am

(c=tdp) (c³=t³V.p+0-) (c³=ΔtΔxΔp) (e=c³) Thry Everythin
Dear colleagues in science,
.
Understanding that the void and the space time fabric are separate and that pressure is variable within areas of the fabric explains the speed of light.
(c=tdp) (c³=t³V.p+0-) (c³=ΔtΔxΔp) (e=c³) where e is the total energy in any enclosed system.
The following excerpt has been added to the website with a Theory of Everything that has no loose ends, linked at the bottom of the email.

ENERGY
c=tdp
c³=t³V.p+0-
c³=ΔtΔxΔp
e=c³

Here is why.

The dynamics of the universe can be broken down into 4 different entities
Space measured as distance in 3 dimensions x y z
Time measured in the physical realm by intervals, seconds, which are fixed to one dimension of space for measurement but which cannot truly measure time. Though we can verify that time is 3 dimensional in variations of the double slit experiment. Einstein showed time is variable relevant to positions in space and it is also variable relative to consciousness in 3 dimensions physical length and quality defined by 2 values difficult to define in physical terms but I will use rich and poor. These 3 can each have positive or negative values.
Pressure: 3 dimensions positive neutral negative again these each can have positive or negative values in the conscious realm.
Energy: excess, sufficient, insufficient. With energy all 3 can have a positive or negative value. A mid point can be fixed for physical systems but cannot be for conscious systems because it's value in consciousness is subjective. We can determine how much energy is needed to play a music at a certain decibel (insufficient energy will not produce a certain high decibel excess energy will exceed it) but it is subjective whether that volume of noise is sufficient, insufficient or excessive.

To condense the essence of the theory we have four entities existing in the space time fabric: time, space, pressure and energy. in the quantum realm energy is a measure of the total number of impacts either by molecules in the ether or if these impacts come in great numbers they become waves which impact against the walls/skin of the spacetime fabric leading to what we detect as electricity and matter. Matter is because segments of these waves get separated from the main wave and stuck in loops/vortices. Electricity is because the waves impact and move through matter.
Energy is determined by the value of the three others time, space, pressure. This can be represented visually by one of each at each corner of a triangle t v and p with e represented by the space in the triangle. Hence why the triangle is the symbol for delta. All 3 have 3 properties time and space are both 3 dimensional while pressure can be + neutral or -. But we always measure using one dimension/property so c is measured along 1 dimension of time t, 1 dimension of space distance d and 1 value of pressure neutral. c=td and until now pressure has not been factored in because physicists assumed the pressure in a vacuum is constant but it is not. There is an ether in the space time fabric. So when light travels through the void which the space time fabric exists in it's speed is constant relative to the space within the fabric that it travels through and variable relative to the space in the void. This is because the spacetime fabric can be stretched or compacted within any fixed area of the void.

Energy (number of impacts/pushes) increases or decreases dependent on the 3 others: any increase in time and/or space and/or pressure and the energy (number of impacts) increases. Likewise any decrease in time and/or space and/or pressure and the energy decreases.
If the units of any 2 remain fixed any decrease in the other gives less energy, conversely any increase gives more energy.
So
If time and space remain fixed any decrease in pressure gives less energy, conversely any increase in pressure gives more energy.
If pressure and space remain fixed any decrease in time gives less energy, conversely any increase in time gives more energy.
If time and pressure remain fixed any decrease in space gives less energy, conversely any increase in space gives more energy.
Energy is in essence the amount of movement in time and space dependent on the pressure marked by the number of collisions. So the speed of light is constant and any "object" travelling towards it causes an increase in pressure in the ether which slows the wave down relative to the amount of space in the void it is travelling through but equal in speed relational to the amount of space it travels through in the fabric.
Any "object" travelling away from the wave causes an decrease in pressure in the ether speeding up the wave relative to the amount of space in the void that it is travelling through but equal in speed relational to the space it travels through in the fabric.
All have a relationship with each other. For the energy to remain constant an increase in value in 1 decreases the combined value of all the others. Adjust the angles in any ratio in the triangle and the proportions of time, space and pressure move with the others keeping the same internal energy. if we keep the same proportions/angles but increase or decrease the size of the sides we increase or decrease the amount of energy within.
If we increase/decrease any 2 of the 3 entities the third must increase/decrease in the opposite direct proportion to the other 2 entities overall change to maintain the same energy and vice versa. The only way we can truly increase or decrease the energy is to vary the overall length of the sides of the triangle. Say we increase the quantity of t we must decrease p and stay in the same volume of space to get the same energy. If p and V stay constant but we increase the amount of t we get more energy (occuring over a longer period of time).

To understand this we must consider or understand that there is an ether INSIDE the space time fabric which is a lattice within a void and that energy is a measure of the frequency and momentum of collisions or pushes. Pushes either by molecules of the ether against each other or pushes of the fabric by waves of varying pressure moving through the ether. The more pressure/momentum P in any specific volume V and/or the more volume in a specific pressure the more energy there is I.e. the more pushes occur within a fixed time. Increase any 1 of these and in order for the energy to remain constant the combined value of other 2 must decrease. For example time is needed for the wave to travel from a to b. So the total energy or number of collisions increases by the rise in volume of a fixed pressure and it also increases with the rise of pressure within a fixed volume and in both cases with any increase in time so the speed of light is not just the distance by the time it is the distance by the time divided or multiplied by the pressure because pressure can be positive neutral or negative. c=dtp where p is either a positive, zero or negative number. So the number of pushes (energy) is (e=d³ x p+0- x t³) we have a symbol for d³ which is V volume the value of p is defined by +, 0 or - but we have until now no value for 3 dimensions of time so here is what we could use. As time can be long or short in length it is also expressed in terms of "quality" which is usually associated with wealth in physical entities so we could use the symbol W for time in all it's dimensions or simply stay with t³. The less pressure (congestion in the ether) the faster the wave moves through a fixed volume of space in a fixed time. Energy is created in every RIK as a wave of collisions/energy passes through. Rather than being divided between the forward exits it exits all with the same energy it enters with through one entrance. That energy (number of collisions) after exiting the RIK remains the same or decreases with the stretch in the TREDDs because while space in the void is constant everywhere the same space in the fabric becomes less when stretched. Less space means less pressure means less energy/collisions.

So in an equation the speed of light is not just distance by time it is also by pressure. c=tdp
c³=t³Vp
when we use delta then x is in fact representative of space V because we know any point in space is 3 dimensional if we magnify enough. In pragmatic terms in quantum physics the position x is V quantized to the field particle, the RIK. So
c³=ΔtΔxΔp
the speed of light is based on the values of these 3, dependant on how we want to express or define it. So regardless of how we wish to define the speed of light it remains constant within any system in the void so the amount of energy in any system or space within the void is.
e=c³

When there is equal volume and pressure in the physical the volume the pressure felt in time dilates in the spiritul/conscious realm not just the physical realm. As Einstein showed the measurement of time "the second" cannot truly measure time because the detected movement of the physical measuring device say the "hand" on the clock is variable relative to the observer the space between the hand and the observer, the amount of mass in the locality and as STT reveals the pressure between the 2 realms the physical and conscious/spiritual. So time and space also exert pressure on each other and as we see clearly in the video evidence of the double slit experiment time and matter have an inverse relationship.

https://doubleslitsolution.weebly.com/springtimetheory.html

Regards

The Oldand Team
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