Justice Beyond Privacy

How to balance free expression against security.

Justice has been always about modes of interconnectivity. Retributive justice – ‘eye for an eye’ stuff – recalls an age when kinship was how we related to each other. In the modern era, courtesy of the nation-state, bonds have been forged in terms of common laws, common language, common education, common roads, etc. The internet, understood as a global information and communication infrastructure, is both enhancing and replacing these bonds, resulting in new senses of what counts as ‘mine’, ‘yours’, ‘theirs’ and ‘ours’ – the building blocks of a just society.

That scourge of Silicon Valley, Evgeny Morozov, is certainly right when he says that the internet isn’t sufficient to solve the problem of justice, today or tomorrow. But he’s wrong to suggest that it’s not necessary. Indeed, this is the time to think about how to digitally realise the entire range of bonds that have been forged over the past 250 years of nation-building. Morozov’s quite justifiable fear is that some of the most crucial bonds may be lost in translation.

In the second half of the twentieth century, liberal political theorists often spoke of a trade-off between ‘efficiency’ and ‘equality’ in the administration of justice:  the most efficiently run society might end up treating individuals unequally in the name of some higher sense of welfare. John Rawls’ A Theory of Justice provided a sanitised version of just this argument. But things have changed since then. The relevant trade-off today is best captured by the tension between the first two amendments of the US Constitution, better known as the Bill of Rights: the right to free expression and the right to self-protection. Imagine what these two rights mean in a digital age.

The new problem of justice arises because the internet allows everyone in principle to say what they wish, while allowing everyone to hear what those people say. Of course, in practice things are not so symmetrical. The internet functions as a market in which people are motivated to develop means both to amplify what they can say and what they can hear. In this respect, surveillance is simply the complement of expression, if we take seriously the idea that people have a right to be heard. But how, then, do we ensure that someone doesn’t say or hear ‘too much’, resulting in they and/or others being prevented from freely expressing themselves in the future?

Liberalism classically upholds the ideal that each person should be free to the same extent as others. The state is thus licensed to maintain the conditions for what we nowadays call ‘equal opportunity’. But people should not lose this opportunity altogether simply because they have made a bad decision or have suffered the consequences of actions by others. Here the law can be freedom’s friend.

In The Proactionary Imperative, Veronika Lipinska and I propose to shift the basis of rights – the legal mainstay of liberalism -- from property to liability. Instead of worrying about what exactly you know about me, I become concerned about your ability to use that knowledge against me. We envisage a world in which insurance and compensation play a much bigger role – as the de facto price for potentially unlimited personal freedom.

Such a shift would motivate a new wave of self-organising group formation around those who might not otherwise see themselves as having much in common, were it not for the fact that others see them that way. The Proactionary Imperative, which focuses on the increase in publicly available genetic information, discusses the implications of this legal shift in terms of ‘hedgenetics’.

Hedgenetics is a programme designed to encourage those sharing publicly visible genetic patterns to organise themselves in order to control and perhaps dictate research and policy relating to their shared state. In the first instance, the proposal aims to ensure – in the spirit of royalties automatically paid for radio plays of copyrighted music – that those whose distinctive genetic make-up is relevant to biomedical innovation are compensated appropriately, even if the innovation is not successful. But also, and more importantly, hedgenetics would open up a legal vehicle for those with common genetic interests to advocate that more research be done on conditions related to their make-up.

The price of greater freedom is that others are free to access you, which means that you need to ensure that you benefit – or at least are not harmed – by that newfound freedom that others have over you. But in any case, privacy in its classical sense is effectively dead.


Steve Fuller holds the Auguste Comte Chair in Social Epistemology at the University of Warwick. He is the author of twenty books, the latest of which (which Veronika Lipinska) is The Proactionary Imperative.

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