Eben Moglen: privacy is ecological, not transactional

Now I spoke last time of the way in which we can decompose “privacy,” the concepts that we float around under that word, into three more specific parts: First, secrecy: that is, our ability to have our messages understood only by those to whom we intend to send them. Second, anonymity: that is, our ability to send and receive messages, which may be public in their content, without revealing who said and who listened or read what was said. Third, autonomy: that is, the avoidance of coercion, interference, and intervention by parties who have violated either our secrecy or our anonymity and who are using what they have gained by those violations to control us.

I would ask you also—in thinking analytically about this substance “privacy” whose continuation I am asserting is essential to democracy’s survival—I would urge you also to consider that privacy is an ecological rather than a transactional substance. This is a crucial distinction from what you are taught to believe by the people whose job it is to earn off you.

Those who wish to earn off you want to define privacy as a thing you transact about with them, just the two of you. They offer you free email service, in response to which you let them read all the mail, and that’s that. It’s just a transaction between two parties. They offer you free web hosting for your social communications, in return for watching everybody look at everything. They assert that’s a transaction in which only the parties themselves are engaged.

This is a convenient fraudulence. Another misdirection, misleading, and plain lying proposition. Because—as I suggested in the analytic definition of the components of privacy—privacy is always a relation among people. It is not transactional, an agreement between a listener or a spy or a peephole keeper and the person being spied on.

If you accept this supposedly bilateral offer, to provide email service for you for free as long as it can all be read, then everybody who corresponds with you has been subjected to the bargain, which was supposedly bilateral in nature.

— Eben Moglen, The Union, May It Be Preserved

I have become increasingly convinced that this analysis is right on. If you’re looking for evidence that the transactional/bilateral nature of privacy is a big lie, look no further than how Privacy Policies and Terms of Service are set up.