Digging deep: the (diverging) philosophical roots of U.S. and E.U. privacy regimes

28 November 2019 (Paris, France) – My recent trip to the U.S. included a day at Harvard University for a workshop which took an in-depth look at the systemic changes in the U.S. legal system. No, not the chimera of “legal innovation” and “legal disruption”. The substantive changes rendered by networked digital media technologies and infrastructures. In short, they have prevented the law from being an instrumentality for the promotion of just outcomes, a neutral arbiter of disputes, a disinterested agent of modernization. In their different ways both networked media infrastructures and legal institutions now sit between truth and power. They can be the means for resisting domination  … or the vehicles embedding it.

But that formulation is too simplistic. Through their capacities to authorize, channel, and modulate information flows and behavior patterns, both code and law mediate between truth and power – and law is in a bind. The terms of the dialogue have been shaped by the technological settlements that have emerged in a networked world and the law has become an enabler … and not in a good way. This is an area I have spend considerable time with the last three years as I have plowed through the works of Julie Cohen, Mireille Hildebrandt and Shoshana Zuboff.  I shall return to this theme next year in one of my usual TL;DR posts 🙂

Much of what they have written touches upon what I comically call “data protection”. As I have noted before, the conversation should never have been about the protection but the collection of data – a point brought home earlier this month by Edward Snowden, the (remote) keynote speaker at the Web Summit in Lisbon, Portugal. It was one of his best statements and he is clearly still on top of things.

Nor should it be about “control”, control being part of the solution fostered by the “privacy-by-design” crowd (the “new new” thing at most data conferences).  This idealized idea of control is impossible. Control is illusory. Even though well intentioned, there is still a mind-boggling number of companies with which users have to interact. We have an information economy that relies on the flow of information across multiple contexts. How could you have meaningful control over all of those relationships?

But philosophically, for those in the privacy scholarship community, there is an awkward truth that European data protection law is going in a different direction from U.S. Federal privacy law. A thorough realpolitical analysis of how the current U.S. regime regarding personal data has been constructed over time to advantage large technology companies can be found in Julie Cohen’s book Between Truth and Power as well as Shoshana Zuboff’s book The Age of Surveillance Capitalism. There is, to be sure, a book to be written some day with the corresponding story about EU data protection law.

Adjacent, somehow, to the operations of political power are the normative arguments leveraged both in the U.S. and in Europe for their respective regimes. Legal scholarship (not legal technology scholarship which is divorced from reality), however remote from actual policy change, remains as a form of moral inquiry. It was hoped that through professional training of lawyers and policy-makers, some form of ethical imperative could take root but that has not happened. “Democratic” interventions into the operations of power made that impossible. Ideology has held sway.

As Sebastian Benthall has pointed out, there is a simply historical reason for this:

The U.S. legal system was founded under a different set of philosophical principles; that philosophical lineage still impacts us today. The Founding Fathers were primarily influenced by John Locke. Locke rose to prominence in Britain when the Whigs, a new bourgeois class of Parliamentarian merchant leaders, rose to power, contesting the earlier monarchy. Locke’s political contributions were a treatise pointing out the absurdity of the Divine Right of Kings, the prevailing political ideology of the time, and a second treatise arguing for a natural right to property based on the appropriation of nature. This latter political philosophy was very well aligned with Britain’s new national project of colonialist expansion. With the founding of the United States, it was enshrined into the Constitution. The liberal system of rights that we enjoy in the U.S. are founded in the Lockean tradition.

Intellectual progress in Europe did not halt with Locke. Locke’s ideas were taken up by David Hume, whose introduced arguments that were so agitating that they famously “woke” Immanuel Kant, in Germany, from his “dogmatic slumber”, leading him to develop a new highly systematic system of morality and epistemology. The source of dignity is not based in a natural process such as the tilling of land. It is rather based on transcendental facts about what it means to be human. The key to morality is treating people like ends, not means; in other words, not using people as tools to other aims, but as aims in themselves.

If this sounds overly lofty to an American audience, it’s because this philosophical tradition has never taken hold in American education. In both the United States and Britain, Kantian philosophy has always been outside the mainstream. The tradition of Locke, through Hume, led to the empiricist view that the only source of knowledge is individual experience. It led to the individual and their individual, not collective, rights, grounded in pragmatic considerations, and learning normative rules using the case-by-case approach of Common Law. There was no overriding “human right” – we’ll pound out rights on a case-by-case-by-case basis.

But the EU was (and still is) very much influenced by Germany and the German legal system. You do not “piecemeal” your way to establishing rights. The ethic, at the heart, must be a conception of general human rights. This philosophical commitment has recently expressed itself in the EU’s assertion of data protection law through the GDPR, whose transnational enforcement clauses have brought this centuries-old philosophical fight into contemporary legal debate in legal jurisdictions that predate the neo-Kantian legal innovations of Continental states.

And so you get puzzled faces from American legal scholars who disagree with the structure and strength of the GDPR, arguing that it is unworkable and/or based on poorly defined principles. They look at the nuts and bolts. Yet they somehow agree the data protections that it offers can seem compelling to users. I would think that some of these shifting expectations around privacy induced (in part) the somewhat surprising outcome of the California Consumer Privacy Act.

American legal scholars now have to try to make sense of the GDPR’s rules and find a normative basis for them. But I am certainly not naive to think the Americans will receive wisdom this fine Thanksgiving Day and reconsider in a fundamental way the relationship between individuals and the collective, labor and capital, and other cornerstones of American ideology.

No. I think the corporate powers, which flourished under the Lockean judicial system, will instinctively fight what is in fact a threatening conception of the person as “important”. In fact, American corporate power will not bother to make a philosophical case at all. They operate in the domain of realpolitic so well documented by Julie Cohen in her book. And look to lawyers to enable that. Although it is notable that so much intellectual and economic energy is now being exerted in the friction around a powerful idea.

Nigel Murray was right after all: Americans are from Mars and Europeans from Venus.